Hernandez v. Lord et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
HECTOR HUGO HERNANDEZ,
Plaintiff,
vs.
DARLENE LORD, et al.,
Defendants.
Case No. 3:19-cv-00151-RRB
ORDER
Hector Hugo Hernandez, a self-represented prisoner, has filed multiple
motions regarding the appointment 	of 	an expert 	witness 	and amending 	his
complaint.
1. Docket 67: Motion for the Appointment of Two Medical Experts
At Docket 67, Mr. Hernandez requests the Court appoint two medical
experts regarding his alleged physical and psychological injuries. In support of this
motion, Mr. Hernandez argues that he is indigent, the medical issues are complex,
and 	that 	he 	has 	been 	unable 	to 	locate 	an 	expert 	witness 	on 	his 	own.1
Mr. Hernandez relies on Rules 702, 703, and 706 of the Federal Rules of
1 Docket 67 at 1.
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Evidence.2 The Defendants oppose the motion on the ground that Mr. Hernandez
is requesting the witness appointments in order to bolster his case.3
Federal Rule of Evidence 706 provides a court the discretion to appoint an
expert witness, either on a party’s motion or on its own accord. An expert witness
appointed under this rule is a neutral party charged with assisting a court in
determining 	a 	material 	fact.4 	When 	determining 	whether 	to 	exercise 	such
discretion, 	a 	court 	may 	consider 	a 	number 	of 	relevant 	factors, 	including:
“(1) Whether expert testimony is necessary or significantly useful for the trier of
fact to comprehend a material issue[; and] (2) Whether the moving party has
produced some evidence, admissible or otherwise, that demonstrates a serious
dispute that could be resolve or understood through expert testimony.”5
Mr. Hernandez argues that his case presents complex medical issues in
need of expert testimony. 	In support, he presents an affidavit along with 25
exhibits.6 	These exhibits consist of Request for Interview (RFI) communications
2 Id.
3 Docket 70.
4 McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991), vacated on other
grounds sub nom. Helling v. McKinney, 502 U.S. 903 (1991), judgment reinstated,
959 F.2d 853 (9th Cir. 1992), aff’d, 509 U.S. 25 (1993); see also Claiborne v.
Blauser, 934 F.3d 885, 901 n.7 (9th Cir. 2019).
5 Gorton v. Todd, 793 F.Supp.2d 1171, 1185 (9th Cir. 2011).
6 Docket 68.
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from Mr. Hernandez and medical progress notes.7 However, while Mr. Hernandez
has provided evidence in support of his motion, neither his motion nor his evidence
demonstrate a serious dispute that needs to be resolved through expert testimony
at this time. 	Mr. Hernandez’s evidence supports the claims in his First Amended
Complaint. 	At this stage in litigation, it is unclear as to what a serious dispute(s)
of material fact will arise between the parties and will need to be decided by the
fact finder. 	As presented, a serious dispute has yet to arise that requires neutral
expert testimony. 	Nevertheless, the Court notes that such a dispute may arise
during or after the close of discovery or through dispositive motions practice.
Accordingly, this motion is premature.
2. Dockets 69, 71, & 72: Motions to Modify or Amend Complaint
At Dockets 69, 71, and 72, Mr. Hernandez files three separate motions to
“compliment, “modify,” or “add sentences” to his First Amended Complaint. 	The
Defendants oppose all of these motions on procedural grounds.8 	The Court has
already 	issued 	multiple 	orders 	to 	Mr. 	Hernandez 	regarding 	the 	process 	of
amending a complaint.
Rule 15(a) of the Federal Rules of Civil Procedure governs the process for
amending pleadings. 	A plaintiff may amend a complaint (1) within 21 days after
7 Docket 68.
8 Dockets 74–76.
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service or within 21 days of a responsive pleading or a motion under Federal Rule
of Civil Procedure Rules 12(b), (e), or (f); (2) with the opposing party’s consent, or
(3) with a court’s permission.9 Additionally, the Local Civil Rule 15.1 governs this
Court’s practice for amending pleadings. “The proposed amended pleading must
not incorporate by reference any prior pleading, including exhibits.”10 In this Court,
an amended complaint replaces the prior complaint in its entirety. 	Plainly, this
means that a plaintiff cannot simply add on new claims or defendants by motion or
declaration. In order to amend a complaint, a plaintiff must submit a new complaint
with all the claims the plaintiff seeks to allege.
After 	the 	acceptance 	of 	the 	First 	Amended 	Complaint, 	the 	Court 	set
August 17, 2020, as a deadline for any amended pleadings.11 	As a matter of
scheduling 	procedure, 	Mr. 	Hernandez’s 	motions 	are 	beyond 	the 	deadline.
Mr. Hernandez’s motions to amend, though relatively innocuous in their additions
or amendments, are not allowed under the rules. 	A party cannot simply add or
amend claims and by reference through a simple motion. In accordance with the
Local Civil Rule 15.1, and as he has done before, Mr. Hernandez must file a new
complaint with all of his claims, naming all of the defendants. 	If Mr. Hernandez
9 Fed. R. Civ. P. 15(a).
10 Local Civil Rule 15.1.
11 Docket 64.
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wants to amend his complaint, he needs to (1) file a motion requesting leave of the
Court to amend his complaint, (2) attach to that motion an entirely new complaint
which alleges all of claims and all of the defendants, and (3) show cause as to why
the Court should accept amended pleadings beyond the deadline set in the
Amended Scheduling Order.
The only instance in which a plaintiff can modify his or her Complaint without
filing an entirely new Complaint is when a plaintiff discovers the identity of a John
or Jane Doe defendant. 	In that case, a plaintiff may file a Notice of Substitution.
A Notice of Substitution informs the Court and the Defendants of the identity of a
John or Jane Doe defendant and which claim is impacted by the discovery.
Mr. Hernandez attempts to make such a substitution at Docket 69. Therefore, the
Court will construe this limited section of the motion as a Notice of Substitution. In
the future, any identified John or Jane Doe defendants should be submitted by a
Notice of Substitution.
3. Defendants’ Request for Screening Order
Finally, in the Defendant’s Response at Docket 70, it states the “defendants
are uncertain of which new claims will survive until the issuance of a screening
order. 	Moreover, none of the defendants added in the amended complaint have
been served or entered their appearance.”12 The Court will not issue an additional
12 Docket 70, fn. 1.
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screening order as Mr. Hernandez’s claims have already been approved to
proceed.13 An Amended Scheduling Order has been issued.
Accordingly, it is hereby ordered:
1. The Motion for the Appointment of Two Medical Experts at Docket 67 is
DENIED WITHOUT PREJUDICE AS PREMATURE. 	The Court may
entertain this issue upon a showing of a serious dispute of a material fact
either on motion from a party or on its own accord.
2. The Motion to Compliment/Modify First Amended Complaint at Docket
69 is DENIED IN PART and GRANTED IN PART. 	The Court accepts
the Notice of Substitution, David Coyne, R.N. shall be added as a
defendant.
3. The Motion for Leave of Court to Add/Compliment Two Sentences as
Conclusion to Paragraphs at Docket 71 is DENIED.
4. The Motion “Final” Addition to Amended Complaint at Docket 72 is
DENIED.
5. Counsel for the Defendants has 60 days to make an appearance on
behalf of the additional defendants of the First Amended Complaint and
the Notice of Substitution at Docket 69.
13 See Dockets 9, 61.
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IT IS SO ORDERED this 5th day of November, 2020, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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