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Belanus v. Dutton

United States District Court, D. Montana, Helena Division

October 10, 2017

DUANE RONALD BELANUS, Plaintiff,
v.
SHERIFF LEO DUTTON, et al., Defendants.

          ORDER

          Dana L. Christensen, Chief Judge

         Currently pending are Mr. Belanus's Motion to be in Appropriate Clothing for Court (Doc. 133); Rule 35 Motion for Experts (Doc. 134); Motion for a Bench Trial and Jury Trial (Bifurcate) (Doc. 135); Motion for Leave to File Under Seal (Doc. 136); Motion to Hold a Hearing via Telephone (Doc. 137); Motion for Temporary Restraining Order and a Hearing (Doc. 138); Motion for Limited Legal Assistance (Doc. 139); Response for Sanctions (Doc. 141); Motion for Extension of Time (Doc. 142); Motion for Clarification (Doc. 143); Rule 706 Motion for Experts (Doc. 147), and Motion for Funds to Retain Experts (Doc. 148).

         I. Motion to be in Appropriate Clothing for Court (Doc. 133)

         The Court will allow Mr. Belanus to appear at trial in civilian clothes but he must make arrangements with the prison to do so. The Court has no means by which to provide clothing for Mr. Belanus.

         II. Motions for Experts

         A. Rule 35 Motion for Experts (Doc. 134)

         Mr. Belanus cites to Rule 35(a)(1) of the Federal Rules of Civil Procedure for the proposition that the Court should provide an expert witness as to his medical/mental condition. Rule 35 provides that the Court "may order a party whose mental or physical condition-including blood group-is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." Fed.R.Civ.P. 35(a)(1). Thus, the Court may compel a party to submit to a physical or mental examination. This rule does not provide that the Court must provide an expert witness for any party. "Rule 35 does not allow for a physical examination of oneself." Berg v. Prison Health Servs., 376 Fed.Appx. 723, 724 (9th Cir. 2010).

         B. Rule 706 Motion for Experts (Doc. 147)

         The Court does have the discretion to appoint an expert pursuant to Rule 706(a) of the Federal Rules of Evidence. In relevant part, Rule 706 states that "[o]n a party's motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed ..." Fed.R.Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Under Rule 706, experts are properly appointed in the court's discretion to assist the trier of fact in evaluating contradictory or complex evidence. Walker, 180 F.3d at 1071 (independent expert appointed to assist court in evaluating conflicting evidence of elusive disease of unknown origin); McKinney v. Anderson, 924 F.2d 1500, 1510-11 (9th Cir. 1991) (noting court's discretion to appoint expert in case involving complex scientific issues concerning effects of secondary cigarette smoke), vacated on other grounds, Helling v. McKinney, 502 U.S. 903 (1991). Appointment of an expert witness may generally be appropriate when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or decide a fact in issue ..." Levi v. Dir. o/Corr., 2006 U.S. Dist. LEXIS 18795, *2, 2006 WL 845733 (E.D. Cal. 2006) (citation omitted).

         The Court has the discretion to appoint an expert and to apportion costs, including the appointment of costs to one side. Fed.R.Evid. 706; Ford ex rel. Ford v. Long Beach Unified School Dist, 291 F.3d 1086, 1090 (9th Cir. 2002); Walker, 180 F.3d at 1071. But where the cost would likely be apportioned to the government, the court should exercise caution. Appointment of an expert is not appropriate for the purpose of assisting a litigating party for his own benefit. See Carranza v. Fraas, 763 F.Supp.2d 113, 119-20 (D.D.C. 2011); Pedraza v. Jones, 71 F.3d 194, 198 n. 5 (5th Cir. 1995); Trimble v. City of Phoenix Police Dept, 2006 U.S. Dist. LEXIS 13061, *6, 2006 WL 778697 (D. Ariz. 2006) (citation omitted).

         Mr. Belanus has not shown issues of requisite complexity requiring appointment of an expert witness to assist the trier of fact. Rather, he seeks the appointment of an expert to support his own arguments. That is not the function of a neutral expert witness.

         Mr. Belanus argues that Defendants are now presenting a "never-before-mentioned" legal defense that Mr. Belanus's injuries were not caused by the assault at LCDC and a physical exam is the only remedy available to correct this controversy. (Doc. 134 at 3-5.) Defendants have always maintained that they were not the cause of any damage or injury to Mr. Belanus. (Answer, Doc. 43 filed November 9, 2015.) This is not a new issue. Mr. Belanus would have always had the burden to prove that his damages were caused by Defendants' actions. This is an insufficient basis upon which to appoint an expert. The motion will be denied.

         C. Motion for Funds to Retain Experts (Doc. 148)

         Mr. Belanus also seeks funds to retain experts in this case because of his indigency. He cites no authority for such action and the Court is unaware of any such authority to provide funds to a litigant to retain an expert. As set forth above, appointment of an expert is not appropriate for the purpose of assisting a litigating party for his own benefit. In addition, the discovery period in this matter ended on April 18, 2016. (Scheduling Order, Doc. 45.) Thus, the time for disclosure of witnesses, including expert witnesses has long passed.

         The motion for funds to retain an expert will be denied.

         III. Motion for a Bench Trial and Jury Trial (Bifurcate) (Doc. 135)

         In his motion for a bench trial, Mr. Belanus requests that this case be tried in two proceedings. First, he seeks a bench trial on the issue of liability and then a trial by jury on the issue of damages. The motion will be denied because Defendants have not waived their right to a trial by jury and continue to demand a trial by jury on all issues, including liability and damages. Pursuant to Fed.R.Civ.P. 39(a)(1) a party may only withdraw a previously asserted jury demand through an oral or written stipulation by all parties. Mr. Belanus made a jury demand when he filed his original complaint on July 9, 2012. (Doc. 1.) Defendants made their jury demand in their Answer filed November 9, 2015. (Doc. 43.) Defendants have not consented to the withdrawal of the jury demand, and therefore Mr. Belanus's motion must be denied.

         IV. Motion for Leave to File Under Seal (Doc. 136)

         Mr. Belanus seeks to file his motion for temporary restraining order, declaration in support of the motion for temporary restraining order, declaration in support of motion for legal assistance and motion to hold a hearing via telephone under seal. The only basis for his motion is that "the matter contained in these filings are best suited for only the parties involved and this Honorable Court out of respect for the proceedings." (Doc. 136.) Based upon other filings, it appears that Mr. Belanus seeks to file these matters under ...


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