           Case: 15-13793   Date Filed: 04/03/2017   Page: 1 of 8


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13793
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:14-cv-00401-SLB-JEO



ORLANDO HOBBS,

                                                          Plaintiff-Appellant,


versus



UNITED STATES OF AMERICA,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (April 3, 2017)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       Orlando Hobbs, a federal prisoner proceeding pro se, seeks relief under the

Federal Tort Claims Act. 1 He claims that the prison officials who treated his spinal

condition committed medical malpractice. The district court granted summary

judgment to the United States, and Hobbs appeals that decision. He argues that

summary judgment was improper because the district court erroneously denied his

request for expert assistance. We agree. We vacate the district court’s grant of

summary judgment and remand for further proceedings.2

                                                I

       On the same day that Hobbs filed his complaint against the United States, he

filed a motion requesting that the district court order two prison physicians, Dr.

Robert Robinson and Dr. Sean O’Malley, to offer medical evidence on his behalf.

The motion stated in part:

              A plaintiff in a medical malpractice action must . . .
              present expert testimony establishing a causal connection
              between the defendant’s acts . . . and the injury suffered
              by the plaintiff. . . . Acknowledging this burden, as well
              as Hobbs[’s] pro se status, it would seem just and proper
              that the court enter an [o]rder requiring [Dr. Robinson
              and Dr. O’Malley] to provide affidavits on matters
              relevant to Hobbs[’s] initial diagnoses, injury, and
              treatment.


       1
          Because Hobbs is pro se, we liberally construe his pleadings. See Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).
        2
          In addition to his expert-assistance claim, Hobbs asserts that summary judgment was
inappropriate because he established a triable issue of medical malpractice. Given our decision
to vacate the district court’s grant of summary judgment based on the expert-assistance claim, we
need not address this argument.
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The district court, construing this request as a request for discovery, denied the

request as premature. The United States later submitted sworn declarations from

Dr. Robinson and Dr. O’Malley, but Hobbs, concerned about his evidentiary

burden, continued to request that the court order the physicians to, among other

things, provide affidavits on his behalf. The district court’s order granting the

United States summary judgment addressed Hobbs’s renewed request.

      The district court’s summary judgment order adopted a magistrate judge’s

Report and Recommendation (R&R). The magistrate judge concluded that, since

Dr. Robinson and Dr. O’Malley submitted declarations adverse to Hobbs, the

district court could not compel them to offer testimony on Hobbs’s behalf. The

judge also construed Hobbs’s request for assistance from Dr. Robinson and Dr.

O’Malley as a general request for the appointment of an expert, and found that the

district court had no obligation to provide Hobbs an independent expert medical

witness:

             [T]he plaintiff does not point to any authority directing
             the court to provide for or compel an expert to testify for
             the plaintiff’s benefit. See Pedraza v. Jones, 71 F.3d
             194, 196 (5th Cir. 1995) (“The plain language of [28
             U.S.C. §] 1915 does not provide for the appointment of
             expert witnesses to aid an indigent litigant.”). In Boring
             v. Kozakiewicz, former pretrial detainees alleged that
             county officials denied them medical treatment. 833
             F.2d 468 (3rd Cir. 1987). [The Third Circuit Court of
             Appeals] . . . [upheld] the district court’s refusal to pay
             for an expert medical witness for the plaintiffs . . . .


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             Similarly, this court is not obligated to pay for or compel
             an expert to testify on the plaintiff’s behalf.

Hobbs v. United States, No. 14-00401, 2015 WL 4641507, at *12 (N.D. Ala. Aug.

4, 2015). The district court adopted and rearticulated these findings in its summary

judgment order. See id. at *1 (“[Dr. Robinson and Dr. O’Malley] cannot be

directed to provide testimony contrary to their sworn declarations to benefit the

plaintiff. Neither has the plaintiff pointed to any authority directing the court to

provide for or compel an expert to testify on his behalf.”).

                                           II

      We review for abuse of discretion the denial of a request for appointment of

an expert to assist a party. Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999).

“[T]he abuse of discretion standard allows a range of choice for the district court,

so long as that choice does not constitute a clear error of judgment.” Broad.

Music, Inc. v. Evie’s Tavern Ellenton, Inc., 772 F.3d 1254, 1257 (11th Cir. 2014)

(internal quotation marks omitted). “It is an abuse of discretion for the district

court to misapply the law or base its decision on clearly erroneous findings of

fact.” Id.

      Under Federal Rule of Evidence 706(a), a district court has “discretionary

power to appoint an expert witness” on the motion of a party. Steele v. Shah, 87

F.3d 1266, 1271 (11th Cir. 1996). When a plaintiff “invoke[s] exercise of that

discretion” and “[t]he case is one that by its nature warrants consideration of the
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possible need” for an expert, the plaintiff is “entitled to a reasoned ruling” on

whether an expert should be appointed. See id. (finding that the district court

abused its discretion in denying the plaintiff’s request for expert assistance because

the court did not “exercise[] and reflect[] in a reasoned ruling” its Rule 706(a)

discretion).

      Here, the district court abused its discretion in denying Hobbs’s request for

expert assistance. The court misapplied the law as set forth in Rule 706(a) and

Steele. See Evie’s Tavern Ellenton, 772 F.3d at 1257.

      The district court was required to exercise its Rule 706(a) discretion and

issue a “reasoned ruling” because Hobbs invoked the court’s Rule 706(a)

discretion and his case warrants consideration of the need for an expert. See

Steele, 87 F.3d at 1271. First, liberally construing Hobbs’s request for an order

requiring Dr. Robinson and Dr. O’Malley to assist him, see Tannenbaum, 148 F.3d

at 1263, the request invoked the district court’s Rule 706(a) discretion to appoint

an expert witness. Indeed, the request led the magistrate judge, and in turn the

district court, to consider whether Hobbs was entitled to the appointment of an

independent expert medical witness. Second, Hobbs’s case “by its nature warrants

consideration of the possible need” for an expert. See Steele, 87 F.3d at 1271. The

case implicates issues related to (1) the appropriate standard of medical care for a

prisoner with spinal injuries and (2) the cause of Hobbs’s spinal condition. See id.


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(concluding that the plaintiff’s case warranted consideration of an expert since the

“appropriate standard of psychiatric care” was at issue).

       Yet the district court, in adopting the magistrate judge’s R&R, overlooked

the court’s Rule 706(a) discretionary power, and instead required Hobbs to identify

authority compelling the court to provide Hobbs expert assistance. The district

court did not exercise its Rule 706(a) discretion, much less issue a “reasoned

ruling” consistent with its duty under Steele. See id. Accordingly, the court

abused its discretion in disposing of Hobbs’s request for expert assistance. See id.

                                                III

       Because the district court erroneously denied Hobbs’s request for expert

assistance, we vacate the court’s grant of summary judgment and remand for

further proceedings consistent with this opinion.3 See Smith v. Fla. Dep’t of Corr.,

713 F.3d 1059, 1064 (11th Cir. 2013) (per curiam) (“Summary judgment is

premature when a party is not provided a reasonable opportunity to discover

information essential to his opposition.”). “We emphasize that we do not here

offer any opinion on the propriety of appointing an expert witness; we only direct

that discretion on the matter be exercised and reflected in a reasoned ruling.” See

Steele, 87 F.3d at 1271.

       3
         We note that Hobbs might “need[] help in presenting the essential merits” of, among
other things, his claim for expert assistance, and he therefore may be entitled to appointment of
counsel on remand, should he request such an appointment. Cf. Steele, 87 F.3d at 1271 (citing
Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993)).
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       AFFIRMED IN PART, 4 VACATED IN PART, AND REMANDED
       FOR FURTHER PROCEEDINGS.




       4
        To the extent that Hobbs challenges the district court’s decision not to compel Dr.
Robinson and Dr. O’Malley to offer affidavits on Hobbs’s behalf, the challenge is unavailing.
We affirm that decision.
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JORDAN, Circuit Judge, concurring.

      Although Mr. Hobbs asked only that Drs. Robinson and O’Malley provide

medical affidavits on his behalf, I concur because the magistrate judge appears to

have construed Mr. Hobbs’ pro se motion as alternatively requesting the assistance

of an expert. See Report & Recommendation, D.E. 39, at 25. Having considered

the motion in this way, the magistrate judge incorrectly stated that there was no

provision of federal law that provided for the appointment of expert witnesses

under these circumstances. As the court explains, Federal Rule of Evidence 706 is

such a source of authority and must be considered on remand. I note as well that

the court’s opinion does not pass on whether sovereign immunity concerns may

impact the applicability of Rule 706 in a case like this one involving the federal

government.




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