Tracey Bernard Washington v. C. W. Essex; C. Banyas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACEY BERNARD WASHINGTON,
Plaintiff-Appellant,
v.
C. W. ESSEX; C. BANYAS,
Defendants-Appellees.
No. 18-16644
D.C. No.
2:12-cv-03054-JAM-DB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted August 31, 2021
San Francisco, California
Before: RAWLINSON and BYBEE, Circuit Judges, and CARDONE,** District
Judge.
Plaintiff-Appellant Tracey Bernard Washington (Washington) appeals from
a district court judgment entered in favor of Defendants-Appellees Dr. Craig W.
Essex (Dr. Essex) and Dr. Carol A. Banyas (Dr. Banyas) following a jury trial.
FILED
OCT 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.

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Washington asserted claims pursuant to 42 U.S.C. § 1983 that Drs. Essex and
Banyas (Defendant Doctors) violated his rights by involuntarily medicating him.
Washington argues that the district court erred by not appointing a neutral expert
after allowing the Defendant Doctors to testify as experts.1 Because Washington
did not move for the appointment of a neutral expert, but instead moved for the
appointment of an expert to assist him, we review for plain error. See United
States v. Olano, 507 U.S. 725, 730 (1993). Plain error is error that is “plain,”
“affects substantial rights,” and “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 732 (citation and internal quotation
marks omitted).
Based on the unique facts of this case, we conclude that the district court
committed reversible error. The district court initially denied without prejudice
Washington’s request for appointment of an expert because Washington
mistakenly requested appointment of an expert “to assist him at trial,” rather than a
neutral expert. Nevertheless, the district court assured the parties that it would
1To the extent Washington argues that it was error to permit Defendant
Doctors to testify as experts, that argument is not well-taken. See Ralston-Purina
Co. v. Bertie, 541 F.2d 1363, 1367 (9th Cir. 1976) (holding that “[defendant’s]
interest in the action . . . would affect the weight, not the admissibility of his
testimony” as an expert witness).
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appoint a neutral expert “should the court later determine that a neutral expert is
necessary.”
At trial, the district court determined that no expert testimony was necessary
to help the jury decide whether the Defendant Doctors violated Washington’s
constitutional rights when they involuntarily medicated him. Rather, the district
court characterized the action as a “credibility case” whereby the jury could
“hear . . . Washington’s version and [the Defendant Doctors’] version” of events.
The district court reasoned:
[I]t is a he said/she said case. I mean, it’s clear it’s a
credibility case. And experts don’t add anything and
experts can’t testify . . . All they can do is take what
[Defendant Doctors] say and render an opinion, which
doesn’t assist the jury in this case. It’s clearly a
credibility case here . . . And I’m not going to waste the
jury’s time or the Court’s time with an expert that’s not
going to add anything to the issues in this case. It’s a
very simple, straightforward case. And I’m not going to
try to complicate it with experts that don’t add anything
and may have to shade over into legal opinions. . . . I’m
not going to allow the experts to testify.
Having provided these extensive remarks regarding why expert testimony
was unnecessary, the district court immediately thereafter designated the
Defendant Doctors as experts, without revisiting its denial of Washington’s request
for the appointment of an expert. Defendant Doctors proceeded to testify as
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experts regarding: 1) Washington’s mental condition; 2) their reliance on
Washington’s history of violence despite the substantial passage of time; 3) why
Washington’s actions constituted a “sudden and marked change” in his mental
condition; and 4) why the circumstances constituted an “emergency” warranting
involuntary medication.
Of course, the expert testimony proffered by the Defendant Doctors was
unrefuted due to the district court’s earlier denial of Washington’s request for the
appointment of an expert. By allowing the Defendant Doctors to testify as experts,
the district court’s undermined its prior ruling that no expert testimony was
necessary to resolve the case.
Under the unique confluence of these events, we conclude that the district
court plainly erred, that Washington’s substantial rights were affected, and that the
error “seriously affect[ed] the fairness” of the trial. Olano, 507 U.S. at 732.
Both this court and the United States Supreme Court have declared that the
“forcible injection of antipsychotic drugs constitutes a ‘particularly severe’
invasion of liberty.” Bean v. Matteucci, 986 F.3d 1128, 1134 (9th Cir. 2021)
(citation omitted); see also Washington v. Harper, 494 U.S. 210, 229 (1990).
Accordingly, the district court’s denial of Washington’s request for the
appointment of an expert while allowing the Defendant Doctors to testify as
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experts, constituted plain error.2 We therefore reverse the district court’s
judgment, and remand for a new trial with a neutral expert appointed by the court,
or testimony from the Defendant Doctors only as fact witnesses.
REVERSED AND REMANDED.
2 Washington’s remaining arguments are without merit. Dr. Banyas’
testimony was not hearsay because it was not offered to establish that the medical
technical assistant (MTA) was unsafe, but to show the effect of the MTA’s
statement on Dr. Banyas’ actions. See United States v. Dorsey, 418 F.3d 1038,
1044 (9th Cir. 2005), abrogated on other grounds in Arizona v. Gant, 556 U.S.
332, 343-44 (2009). The district court did not err by admitting evidence of
Washington’s term of incarceration because Washington did not object and the
district court provided a limiting instruction. See Borunda v. Richmond, 885 F.2d
1384, 1388-89 (9th Cir. 1988). Admitting evidence of Washington’s prior juvenile
convictions was not error because the evidence was previously introduced by
Washington. See Ohler v. United States, 529 U.S. 753, 760 (2000). The district
court’s instructions on admitting Washington’s criminal convictions “fairly and
adequately covered the issues, correctly stated the law, and were not misleading or
prejudicial.” Ridgeway v. Walmart Inc, 946 F.3d 1066, 1081 (9th Cir. 2020).
Finally, the district court properly denied Washington’s motion under Fed. R. Civ.
P. 50(b) based on his failure to make a Rule 50(a) motion. See Tortu v. Las Vegas
Metro. Police Dep’t, 556 F.3d 1075, 1082 (9th Cir. 2009).
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