United States District Court, D. Arizona
ORDER
Honorable Eileen S. Willett, United States Magistrate Judge.
This
Order sets forth the Court's rulings on a number of
pending Motions (Docs. 20, 26, 27, 31).
I.
DISCUSSION
A.
Defendants' “Motion to Strike Plaintiff's Reply
to Defendants' Responsive Pleading” (Doc.
20)
On July
18, 2019, Defendant Kirk and McCarthy filed an Answer (Doc.
15) to Plaintiff's Complaint (Doc. 1). On July 29, 2019,
Plaintiff filed a “Reply to Defendant's Responsive
Pleading” (Doc. 19). Pending before the Court is
Defendants' “Motion to Strike Plaintiff's Reply
to Defendants' Responsive Pleading” (Doc. 20).
Federal
Rule of Civil Procedure 7(a) lists the pleadings that are
allowed in a civil action. Pursuant to Rule 7(a)(7), a reply
to an answer is allowed only if the court orders one. As the
Court did not order a reply to Defendants' Answer (Doc.
15), Plaintiff's Reply (Doc. 19) is an improper pleading.
Accordingly, the Court will grant Defendants' Motion
(Doc. 20).
B.
Defendants' “Motion to Stay” (Doc.
26)
The
Court has reviewed the parties' briefing concerning
Defendants' Motion (Doc. 26) that requests that the Court
stay discovery pending resolution of Defendants'
“Motion for Summary Judgment re: Failure to Exhaust
Administrative Remedies” (Doc. 24). In opposing the
Motion, Plaintiff explains that he needs discovery to support
his claim that his exhaustion requirement should be excused.
(Doc. 35). The Court will grant Defendants' Motion (Doc.
26) to the following extent: pending resolution of
Defendants' Motion for Summary Judgment (Doc. 24),
discovery is limited to evidence concerning exhaustion,
including whether the exhaustion requirement should be
excused.
C.
Plaintiff's “Request for Appointment of a Private
Investigator” (Doc. 27) and “Request for
Appointment of a Psychologist, Pursuant to Rule 36(a)
FRCP” (Doc. 31)
The
Court has reviewed Plaintiff's two Motions (Docs. 27, 31)
in which Plaintiff requests that the Court appoint (i) a
private investigator and (ii) a psychologist to serve as an
expert witness.
Congress
has not authorized the expenditure of public funds for the
Court appointment of an investigator for a plaintiff
proceeding in forma pauperis under 28 U.S.C. § 1915.
See Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir.
1989) (citing United States v. MacCollom, 426 U.S.
317, 321 (1976)). Plaintiff's “Request for
Appointment of a Private Investigator” (Doc. 27) will
be denied.
Federal
Rule of Civil Procedure 702 provides that “[i]f
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or
otherwise.” The Court has the discretion to appoint an
expert and to apportion costs, including the apportionment 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). Expert witnesses, however, cannot be
appointed solely to aid a litigant in presenting his or her
case. Expert witnesses can be only appointed where necessary
to aid the court. See Pedraza v. Jones, 71 F.3d 194,
196 (5th Cir. 1995) (stating that “the plain language
of [28 U.S.C. § 1915] does not provide for the
appointment of expert witnesses to aid an indigent
litigant”). “The most important factor in favor
of appointing an expert is that the case involves a complex
or esoteric subject beyond the trier-of-fact's ability to
adequately understand without expert assistance.”
Wright & Miller, 29 Fed. Prac. & Proc. Evid. §
6304 (2004).
The
Court finds that Plaintiff's allegations in his Complaint
(Doc. 1) are not so complicated as to require the appointment
of an expert witness to assist the Court. Plaintiff's
“Request for Appointment of a Psychologist, Pursuant to
Rule 36(a) FRCP” (Doc. 31) will be denied.
Plaintiff's “Request for an Expedited Ruling on a
Motion for Appointment of a Psychologist” (Doc. 38)
will be denied as moot.
D.
Plaintiff's “Motion for Extension of ...