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Miles v. Conrad

United States District Court, D. Kansas

February 21, 2018

MAURICE L. MILES, JR., Plaintiff,
v.
DEPUTY CONRAD, in his official capacity with Reno County Sheriff's Department; DEPUTY SWONGER, in his official capacity with Reno County Sheriff's Department; DEPUTY MONDRAGON, in his official capacity with Reno County Sheriff's Department; and DEPUTY CARDER, in his official capacity with Reno County Sheriff's Department; Defendants.

          ORDER

          K. GARY SEBELIUS U.S. MAGISTRATE JUDGE.

         This matter comes before the court upon the following motions filed by plaintiff, proceeding pro se: (1) Motion for Place of Trial (ECF No. 37); Motion for Expert Witnesses (ECF No. 38); and (3) Motion to Appoint Counsel (ECF No. 39). Having carefully reviewed these motions, the court is now prepared to rule.

         I.

         Plaintiff, who was previously a pretrial detainee in the Reno County Jail in Hutchinson, Kansas, brings claims under 42 U.S.C. §1983 against a sergeant and three deputies in the jail, alleging that they failed to protect him from an assault by his cellmate and then failed to offer medical treatment. The court has previously allowed plaintiff to proceed in forma pauperis.[1]

         II.

         In his motion for place of trial, plaintiff requests that the trial of his case not be heard in Reno County. In his complaint, plaintiff did not choose a place of trial. To the extent that plaintiff only seeks that the trial of this case not be held in Reno County, the court shall grant this motion. The determination of place of trial will be determined at a later time, but the case will not be held in Reno County since the federal courts in Kansas do not have a court location in that county. The trial of this case will be held in Wichita, Topeka or Kansas City.

         III.

         In his motion for appointment of an expert witness, plaintiff requests that the court appoint an expert witness for him under D. Kan. Rule 26.4. Plaintiff suggests that the appointment of an expert witness would ensure that a neutral party would investigate the case.

         Rule 26.4 does allow for the appointment of expert witnesses. It provides:

(a) Court-Appointed Experts. If a judge determines that the appointment of expert witnesses in an action may be desirable, the judge will order the parties to show cause why expert witnesses should not be appointed. After opportunity for hearing, the judge may request nominations and appoint one or more such witnesses. If the parties agree in the selection of an expert or experts, the judge will appoint the agreed expert or experts. Otherwise, the judge may make the selection. The judge will determine the duties of the witness and inform the witness thereof at a conference at which the parties will have an opportunity to participate. A witness so-appointed must advise the parties of the findings of the witness, if any. The judge or any party may call the witness to testify. Any party may examine and cross-examine the witness.

         A court may appoint expert witnesses under D. Kan. Rule 26.4 or Fed.R.Evid. 706(a). “The determination to appoint an expert rests solely in the Court's discretion and is to be informed by such factors as the complexity of the matters to be determined and the Court's need for a neutral, expert view.”[2] However, the in forma pauperis statute, 28 U.S.C. § 1915(c) does not provide for payment of expert witness fees.[3] Rather, under Fed.R.Evid. 706(c) and D. Kan. Rule 26.4, each party typically splits the costs of a court-appointed expert. Plaintiff proceeds in forma pauperis here, so in reality defendants would bear the entire cost of an expert if the court decided to appoint one. Accordingly, the court exercises this power sparingly.

         At this point in the case, the court finds no need to appoint an expert witness. Plaintiff has failed to identify what type of expert witness is necessary, and the court is unable to determine the necessity of any expert at this time. Unless the court determines otherwise, any such appointment would be for the benefit of the court, the trier of fact, and all parties, and not simply for the benefit of the plaintiff or as a substitute for a retained expert witness under Fed.R.Civ.P. 26(a)(2). Accordingly, this motion is denied.

         IV.

         Finally, plaintiff seeks appointment of counsel. There is no constitutional right to appointed counsel in a civil case.[4] However, 28 U.S.C. § 1915(e)(1) permits the court to “request an attorney to represent” a party proceeding in forma pauperis. The court emphasizes that § 1915(e)(1) merely permits the court to request an attorney to represent an indigent defendant in a civil case and does not authorize the court to require an unwilling attorney to take the case.[5] Thus, to the extent plaintiff requests the court to appoint counsel, the court lacks the power to do so. The court only may seek a volunteer attorney to represent him. Furthermore, Congress provides no method ...


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