United States District Court, D. Kansas
MAURICE L. MILES, JR., Plaintiff,
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.
GARY SEBELIUS U.S. MAGISTRATE JUDGE.
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.
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
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.
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.
26.4 does allow for the appointment of expert witnesses. It
(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
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.” However, the in forma pauperis
statute, 28 U.S.C. § 1915(c) does not provide for
payment of expert witness fees. 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.
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.
plaintiff seeks appointment of counsel. There is no
constitutional right to appointed counsel in a civil
case. 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. 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 ...