United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff’s pro se motion
for appointment of an independent medical expert (Doc. No.
31); motion for appointment of counsel (Doc. No. 32); and
motion to produce documents and interrogatory responses (Doc.
No. 34); and Defendants’ Motion for Protective Order
and to Stay Discovery (Doc. No. 36).
for appointment of medical expert
Plaintiff asks the Court to appoint an independent medical
expert to this case pursuant to Federal Rule of Evidence 706
to “help the courts and the jury understand the
conflicting and complex issues at hand, ” and to order
that prison officials and Corizon pay for the costs of the
expert because he is indigent. Rule 706 authorizes the court
to appoint an expert witness to testify in an action and
order reasonable compensation be paid to the witness by the
parties, in such proportion as the court directs. Fed.R.Evid.
706(a), (b). Courts have considerable discretion in deciding
whether to appoint an expert pursuant to Rule 706 and in
apportioning costs under that provision when one party is
indigent. See Severance v. Chastain, No. 4:15-CV-74
CAS, 2018 WL 1251915, at *2 (E.D. Mo. Mar. 12, 2018) (citing
cases). Nevertheless, courts rarely exercise their authority
under Rule 706, requiring extraordinary and compelling
circumstances to justify appointing an expert witness under
this rule. See Malady v. Corizon, No. 1:13CV80 SNLJ,
2013 WL 5835995, at *1–2 (E.D. Mo. Oct. 30, 2013)
(citing In re Joint Eastern and Southern Districts
Asbestos Litigation, 830 F.Supp. 686, 693 (E. &
S.D.N.Y. 1993) (citing Fed.R.Evid. 706, Advisory Comm. Note
(“experience indicates that actual appointment is a
relatively infrequent occurrence”)); United States
Marshals Serv. v. Means, 741 F.2d 1053, 1059 (8th Cir.
1984) (court should appoint an expert witness only under
compelling circumstances) (subsequent history omitted).
Plaintiff has not shown compelling circumstances warranting
the appointment of an expert witness. His claim for relief
concerns failure to treat his testicular pain and shrinkage.
Plaintiff is able to testify to the effect of his medical
condition upon him. Because the purpose of Rule 706, i.e., to
assist the factfinding of the court, would not be served by
appointing Plaintiff a court-appointed expert at this point
in the proceedings, the motion will be denied without
for appointment of counsel
review of the file indicates that Plaintiff first requested
appointment of counsel on January 16, 2019. (Doc. No. 3). The
Court denied Plaintiff’s request without prejudice on
May 9, 2019, finding he had demonstrated that he could
adequately present his claims to the Court and noting that
the case is neither factually nor legally complex. (Doc. No.
9). Plaintiff requested appointment of counsel a second time
on July 18, 2019 (Doc. No. 25) and the Court again denied his
request after considering the relevant factors. See
Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir.
1986); Nelson v. Redfield Lithograph Printing, 728
F.2d 1003, 1005 (8th Cir. 1984). The Court finds nothing in
the record to cause it to reconsider its previous orders
denying Plaintiff’s requests for appointment of
counsel. As such, the Court will deny Plaintiff’s
latest motion for appointment of counsel without prejudice.
to produce discovery
Plaintiff seeks an order compelling Defendants to respond to
his interrogatories and requests for production of documents.
Plaintiff’s discovery seeks information regarding his
medical care. Defendants have moved for a protective order
and to stay discovery pending resolution of their motion for
summary judgment based on Plaintiff’s failure to
exhaust administrative remedies prior to filing the instant
Court is vested with broad discretion to manage discovery.
Bunting v. Sea Ray, Inc., 99 F.3d 887, 890 (8th Cir.
1996). Pursuant to Rule 26(c)(1), the Court may, for good
cause, issue a protective order forbidding or limiting
discovery. The avoidance of undue burden or expense is
grounds for the issuance of a protective order, Fed.R.Civ.P.
26(c), and a stay of discovery pending resolution of
potentially dispositive issues furthers the goal of
efficiency for the courts and the litigants. See Little
v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988)
(stay of discovery pending resolution of immunity issue).
Courts have recognized the propriety of delaying discovery on
the merits of the plaintiff’s claims pending resolution
of an exhaustion motion. See, e.g.,
Albino v. Baca, 747 F.3d 1162, 1170–71 (9th
Cir. 2014) (en banc), cert. denied, 135 S.Ct. 403 (2014). The
failure to exhaust is an affirmative defense, and Defendants
are entitled to move for judgment on the issue. Id.
motion, if meritorious, is potentially dispositive of the
case. Further, any discovery is unnecessary for resolution of
the motion because the issues raised are exhaustion of
administrative remedies. Thus, the Court finds that judicial
economy is best served by staying discovery until after the
Court rules on Defendants’ pending motion for summary
judgment. The Court will grant Defendants’ motion for
protective order and to stay discovery until it rules on
their motion for summary judgment. If, after the Court rules
on the motion, it has not disposed of this action, the Court
will lift the stay. In light of this ruling, Plaintiff s
motion to produce discovery is denied as moot.
IT IS HEREBY ORDERED that Plaintiffs motion
for appointment of an independent medical expert  is
DENIED without prejudice.
IS FURTHER ORDERED that Plaintiffs motion for
appointment of counsel  is DENIED
IS FURTHER ORDERED that Defendants’ Motion for
Protective Order and to Stay Discovery  is
GRANTED and Plaintiffs motion to produce