United States Court of Appeals,
Fifth Circuit.
No. 95-40351.
Leopold Lee PEDRAZA, Plaintiff-Appellant,
v.
Richard L. JONES, Kenneth Rosenquest, and Gary Smejkal,
Defendants-Appellees.
Dec. 27, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before POLITZ, Chief Judge, DAVIS and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Leopold Lee Pedraza ("Pedraza") appeals from a district court
order granting summary judgment in favor of Richard L. Jones,
Kenneth Rosenquest, and Smejkal (collectively, "defendants") on the
ground that Pedraza's claims were time-barred. Pedraza argues that
an expert witness should have been appointed to help him prepare
his case and that the district court erred in striking his
affidavits. Finding no error in the district court's judgment, we
affirm.
BACKGROUND
Pedraza filed a pro se 42 U.S.C. § 1983 claim in forma
pauperis, alleging that the defendants, officials and officers in
the Victoria, Texas Police Department, had denied him medical
treatment for heroin withdrawal despite his repeated requests from
June 12 to June 14, 1986. In a hearing to determine whether a
factual basis existed for Pedraza's claim, the district court
1
dismissed the claim because it was not filed within the Texas
two-year statute of limitations. See Tex.Civ.Prac. & Rem.Code Ann.
§ 16.003(a) (West 1986).1
This court subsequently vacated the dismissal and remanded for
a determination of whether Pedraza's mental condition tolled the
statute of limitations so as to bring his claim within the
limitations period. See Tex.Civ.Prac. & Rem.Code Ann. §
16.001(a)(2) (West Supp.1995) (tolling the limitations period when
a person is under a legal disability, such as unsound mind).
Pedraza argued that he was of unsound mind from July 12, 1986 to
October 1987 as a result of heroin withdrawal.
The defendants filed a motion for summary judgment, which
contained the affidavit of their expert witness, Dr. Robert C.
Lyman, a psychiatrist with extensive training and experience in
narcotic use and withdrawal. Lyman stated, inter alia, that it is
impossible for a person to be impaired physically or mentally due
to heroin withdrawal for five months or longer.2
Pedraza filed two motions for appointment of an expert witness
on heroin use and withdrawal, which the district court denied:
Plaintiff seeks assistance from a court-appointed expert on
the ground that he cannot overcome the Defendants' expert
1
For section 1983 claims, federal courts apply the general
personal injury statute of limitations of the forum state. Owens
v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 582, 102 L.Ed.2d
594 (1989); Burrell v. Newsome, 883 F.2d 416, 418 (5th
Cir.1989).
2
Because limitations ran on June 12, 1988 and Pedraza did
not file his suit until November 21, 1988, five months is the
minimum amount of time that Pedraza must have been impaired in
order to bring his claim within the limitations period.
2
without an expert of his own. While the court is cognizant of
Plaintiff's plight, it is not in a position to appoint an
expert. The in forma pauperis ("IFP") statute ... does not,
however, require or authorize the court to subsidize
litigation by paying expert fees or other costs that IFP
litigants may incur, such as depositions, duplication,
exhibits, or travel. As a general matter, IFP litigants must
hire their own experts.
Pedraza filed a response to the summary judgment motion
supported by affidavits from himself and Antonio Marquez, which
stated that heroin withdrawal could cause a person to be of unsound
mind. The district court struck the affidavits and granted summary
judgment for the defendants on the ground that Pedraza had failed
to raise a genuine issue of material fact.
DISCUSSION
A. District Court's failure to appoint an expert witness
Pedraza argues that the district court erred in refusing to
appoint an expert witness because, without the assistance of an
expert witness, indigent prison inmates cannot raise these types of
claims. He asserts that the Fifth Circuit has awarded expert
witness fees in many cases in recognition of counsel's need for
experts' assistance. See Copper Liquor, Inc. v. Adolph Coors Co.,
684 F.2d 1087, 1100 (5th Cir.1982); Berry v. McLemore, 670 F.2d
30, 34 (5th Cir.1982); Jones v. Diamond, 636 F.2d 1364, 1382 (5th
Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69
L.Ed.2d 1033 (1981).3
3
These cases were subsequently overruled to the extent that
they allowed recovery of expert fees in excess of the amount
specified by 28 U.S.C. § 1821. International Woodworkers of Am.
v. Champion Int'l Corp., 790 F.2d 1174, 1180-81 & n. 8 (5th
Cir.1986) (en banc), aff'd and remanded, Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385
3
This Court has not addressed the issue of whether expert
witnesses can be appointed to assist a plaintiff proceeding under
the in forma pauperis ("IFP") statute, 28 U.S.C. § 1915. The
Supreme Court has held that "expenditure of public funds [on behalf
of an indigent litigant] is proper only when authorized by
Congress." United States v. MacCollom, 426 U.S. 317, 321, 96 S.Ct.
2086, 2089, 48 L.Ed.2d 666 (1976). The plain language of section
1915 does not provide for the appointment of expert witnesses to
aid an indigent litigant.
In Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir.1987), cert.
denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988), the
Third Circuit held that section 1915 makes no provision for a
district court to either pay or waive fees for an expert witness.
Id. at 474. The court concluded that "in these circumstances we
cannot fault the district court for not exercising a power it did
not possess." Id.4 We agree. Because the district court has no
(1987). The cases involved situations where expert witness fees
were awarded after the plaintiff prevailed in a civil rights
suit. See 42 U.S.C. § 1988(b) (allowing for the recovery of
attorney fees, which many courts found included expert fees when
the expert was helpful to a determination of the issues).
4
Although section 1915(c) provides that "[w]itnesses shall
attend as in other cases," the circuit courts that have addressed
the issue of court payment for non-expert witness fees, such as
attendance and mileage, have consistently held that federal
courts are not authorized to waive or pay witness fees on behalf
of an IFP litigant. See Malik v. Lavalley, 994 F.2d 90, 90 (2d
Cir.1993); Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir.1989);
McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir.1987), cert.
denied, 485 U.S. 965, 108 S.Ct. 1236, 99 L.Ed.2d 435 (1988);
Cookish v. Cunningham, 787 F.2d 1, 5 (1st Cir.1986); U.S.
Marshals Serv. v. Means, 741 F.2d 1053, 1057 (8th Cir.1984),
rev'd on other grounds, 858 F.2d 404 (8th Cir.1988); Johnson v.
Hubbard, 698 F.2d 286, 289-90 (6th Cir.), cert. denied, 464 U.S.
4
authority to appoint an expert witness under section 1915, the
district court did not err in refusing to appoint an expert witness
to help Pedraza create a fact issue concerning whether heroin
withdrawal can cause an individual to become of unsound mind.5
B. Striking of the Affidavits
Pedraza contends the district court erred in striking the
affidavits of Pedraza and Antonio Marquez. He argues that
Marquez's affidavit was admissible either as expert testimony or
lay opinion and that his own affidavit qualified as lay opinion.
A district court's decision to strike either expert or lay opinion
testimony is subject to review under an abuse of discretion
standard. Christophersen v. Allied-Signal Corp., 939 F.2d 1106,
1109 (5th Cir.1991), cert. denied, 503 U.S. 912, 112 S.Ct. 1280,
917, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983); see also Hodge v.
Prince, 730 F.Supp. 747, 749-51 (N.D.Tex.1990), aff'd, 923 F.2d
853 (5th Cir.1991) (mem.).
5
The court apparently believed that section 1915 was the
sole source of authority to appoint an expert for an indigent.
In appropriate circumstances, however, a court may appoint an
expert under Fed.R.Evid. 706. The expert witness must either be
agreed upon by the parties or selected by the court. Fed.R.Evid.
706(a). Compensation of the expert is by the parties "in such
proportion and at such time as the court directs." Id. 706(b).
A few circuits have allowed appointment even when one party was
indigent and unable to bear a portion of the costs. See McKinney
v. Anderson, 924 F.2d 1500, 1511 (9th Cir.), vacated and remanded
on other grounds, 502 U.S. 903, 112 S.Ct. 291, 116 L.Ed.2d 236
(1991); Webster v. Sowders, 846 F.2d 1032, 1038-39 (6th
Cir.1988).
Pedraza made no showing that he attempted to procure an
expert, never submitted medical or psychological records
regarding his mental condition, never requested the
appointment of an expert pursuant to Rule 706, and requested
an appointment only for his own benefit. Under these
circumstances, Rule 706 is not applicable.
5
117 L.Ed.2d 506 (1992); Washington v. Department of Transp., 8
F.3d 296, 300 (5th Cir.1993).
Under Fed.R.Evid. 702, a witness may be qualified as an expert
by knowledge, skill, experience, training, or education. See
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 176
(5th Cir.1990), cert. denied, --- U.S. ----, 114 S.Ct. 171, 126
L.Ed.2d 131 (1993). Pedraza asserts that Marquez is an expert on
heroin withdrawals because of his thirty-years experience as a
heroin addict.
To qualify as an expert, the witness's testimony must "both
rest[ ] on a reliable foundation and [be] relevant to the task at
hand. Pertinent evidence based on scientifically valid principles
will satisfy those demands." Daubert v. Merrell Dow
Pharmaceuticals, Inc., --- U.S. ----, ----, 113 S.Ct. 2786, 2799,
125 L.Ed.2d 469 (1993). Marquez's affidavit satisfies none of the
indicia of reliability outlined in Daubert. Id. at ----, 113 S.Ct.
at 2796-99. The district court did not abuse its discretion in
refusing to consider the affidavit as expert testimony.
Pedraza also argues that both affidavits are admissible as
lay opinion under Fed.R.Evid. 701, which provides that a lay
witness may testify in the form of opinions or inferences only when
they are (1) rationally based on the perception of the witness and
(2) helpful to a clear understanding of his testimony or the
determination of a fact in issue. Because Marquez possessed no
personal knowledge of Pedraza's mental condition, his affidavit
does not satisfy the requirements of Rule 701. The general
6
assertions he makes based on his own experience and his admission
that each individual's experience varies "depending on the person's
tolerance and method of treatment for recovery" would not be
helpful in resolving whether Pedraza was of unsound mind.
Pedraza's affidavit similarly fails because he makes only
conclusory statements as to why the heroin withdrawal caused him to
be of unsound mind. We conclude the district court did not abuse
its discretion in striking the affidavits.
C. Appointment of Counsel
Pedraza contends that the "exceptional circumstances" of the
case required the district court to appoint an attorney to
represent him. See 28 U.S.C. § 1915(d); Ulmer v. Chancellor, 691
F.2d 209, 213 (5th Cir.1982) (offering guidelines for when counsel
should be appointed). The district court's decision is subject to
abuse of discretion review. See Richardson v. Henry, 902 F.2d 414,
417 (5th Cir.), cert. denied, 498 U.S. 901, 111 S.Ct. 260, 112
L.Ed.2d 218 (1990). We have reviewed the record and Pedraza's
performance thus far and conclude that the district court did not
abuse its discretion in not appointing counsel.
CONCLUSION
For the forgoing reasons, the order of the district court
granting summary judgment is affirmed.
7