John Draper v. D. Rosairo

Filing

FILED OPINION (KIM MCLANE WARDLAW, RICHARD A. PAEZ and CARLOS T. BEA) The judgment is AFFIRMED. The award of costs is VACATED and REMANDED for further consideration consistent with this opinion. The parties shall bear their own costs on appeal. Judge: RAP Authoring, Judge: CTB On panel but did not write. FILED AND ENTERED JUDGMENT. [10114166]

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 1 of 37

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN CLINT DRAPER,
Plaintiff-Appellant,

No. 14-16340
D.C. No.
2:10-cv-00032-KJM-EFB

v.
D. ROSARIO, Officer; E.
ROGERS, Lieutenant,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted May 11, 2016
San Francisco, California
Filed September 7, 2016
Before: Kim McLane Wardlaw, Richard A. Paez,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Paez;
Partial Concurrence and Partial Dissent by Judge Bea

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 2 of 37

2

DRAPER V. ROSARIO
SUMMARY*

Civil Rights
In an action brought pursuant to 42 U.S.C. § 1983 by a
California state prisoner, the panel affirmed the district
court’s dismissal of plaintiff’s procedural due process claim,
affirmed the district court’s evidentiary rulings, and vacated
the district court’s award of costs in favor of defendants and
remanded.
Plaintiff alleged a violation of his Eighth Amendment
right to be free from cruel and unusual punishment stemming
from a physical altercation with a prison officer. Plaintiff
also alleged that in the administrative disciplinary proceeding
that followed the altercation, the presiding officer deprived
plaintiff of a fair hearing in violation of his Fourteenth
Amendment procedural due process rights.
The panel affirmed the district court’s dismissal of
plaintiff’s procedural due process claim for failure to exhaust
administrative remedies under the Prison Litigation Reform
Act. The panel held that even though defendants filed an
unenumerated Rule 12(b) motion rather than a motion for
summary judgment on the exhaustion issue, remand was not
necessary because the district court applied the correct
summary judgment standard. The panel further held that
because plaintiff failed to rebut defendants’ evidence of
non-exhaustion, the district court properly dismissed the
claim.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 3 of 37

DRAPER V. ROSARIO

3

Affirming the district court’s evidentiary rulings, the
panel held that the district court did not err by excluding
testimony from an inmate witness. The panel further held that
counsel in a civil trial may not rely on evidence outside the
record to vouch for the credibility of witnesses. In this case,
defense counsel improperly vouched for the credibility of
correctional officer witnesses during closing argument. On
plain error review, however, the district court’s failure to
correct the error sua sponte did not warrant reversal.
Finally, the panel held that because several factors
weighed heavily against a large cost award in this case, and
severe injustice would result from such an award, the district
court abused its discretion in taxing costs of $3,018.35
against plaintiff. Accordingly, the panel vacated the cost
award and remanded for the district court to reconsider
whether a cost award was warranted, and, if so, an
appropriate amount, in light of the panel’s opinion.
Concurring in part and dissenting in part, Judge Bea
agreed with the majority that the judgment in favor of the
defendants should be affirmed. He dissented in part, stating
that the district court did not abuse its discretion in taxing
costs against the plaintiff because the district court justifiably
followed the presumption of taxing costs against the losing
party.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 4 of 37

4

DRAPER V. ROSARIO
COUNSEL

Matthew Guarnieri (argued) and Paul R.Q. Wolfson, Wilmer
Cutler Pickering Hale and Dorr LLP, Washington, D.C., for
Plaintiff-Appellant.
Suzanne Antley (argued), Deputy Attorney General; Thomas
S. Patterson, Supervising Deputy Attorney General; Jonathan
L. Wolff, Senior Assistant Attorney General; Kamala D.
Harris, Attorney General; Office of the Attorney General, San
Diego, California, for Defendant-Appellee D. Rosario.

OPINION
PAEZ, Circuit Judge:
In this prisoner civil rights action, plaintiff John Clint
Draper (“Draper”) alleged a violation of his Eighth
Amendment right to be free from cruel and unusual
punishment stemming from a physical altercation with
defendant Officer David Rosario (“Rosario”). Draper also
alleged that in the administrative disciplinary proceeding that
followed the altercation, the presiding officer, defendant
Lieutenant E. Rogers (“Rogers”), deprived him of a fair
hearing in violation of his Fourteenth Amendment procedural
due process rights. The district court dismissed the due
process claim for failure to exhaust administrative remedies
as required by the Prison Litigation Reform Act of 1995
(“PLRA”). 42 U.S.C. § 1997e(a). The Eighth Amendment
claim was tried before a jury, which returned a verdict in
favor of Rosario. On appeal, Draper argues that the district
court erred in dismissing his procedural due process claim
and in excluding the testimony of a certain prisoner who

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 5 of 37

DRAPER V. ROSARIO

5

allegedly witnessed the altercation. He also argues that the
district court erred in allowing opposing counsel to make
improper statements during closing argument. Finally,
Draper appeals the district court’s order taxing costs totaling
$3,018.35.
We affirm the district court’s dismissal of Draper’s
procedural due process claim and the court’s evidentiary
rulings. We conclude that defense counsel improperly
vouched for the credibility of correctional officer witnesses
during closing argument, but on plain error review, the
district court’s failure to correct the error sua sponte does not
warrant reversal. Finally, we hold that the district court
abused its discretion in awarding $3,018.35 in costs. We
therefore affirm in part, vacate the award of costs, and
remand.
I.
At the time of the altercation, Draper was a 61-year-old
prisoner housed at the California State Prison in Solano
(“C.S.P.-Solano”). He was considered mobility impaired and
used a cane to walk. He was assigned to work as a porter in
the prison, where his job was to clean tables in Building Four.
On September 9, 2009, Rosario accused Draper of not
cleaning the tables and ordered him to report to the
correctional officers’ office. Draper complied, and while he
stood outside the office, the two had a conversation about
whether Draper had performed his porter duties. Draper
became upset, swore at Rosario, and accused him of lying.
Rosario claimed that Draper then stepped into the office
across a red line delineating an area that prisoners could not
enter without permission, and that he told Draper to step
back, which Draper did. Draper disputes that he ever stepped

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 6 of 37

6

DRAPER V. ROSARIO

over the red line. Rosario then ordered Draper to drop his
cane and to put his hands behind his back. Draper complied,
and Rosario placed him in handcuffs.
What happened next is disputed.1 Draper testified that
Rosario suddenly slammed him against the sally port gate that
leads out of Building Four. Draper explained that he put a
foot out to try to stop himself from “hitting the grill gate with
full force” but that he still “hit the grill gate hard.” Draper
testified that the force of Rosario slamming him against the
gate caused him to bounce off and fall to the ground, and that
Rosario “jumped down in the middle of [Draper’s] back”
with his knee, pushing his full body weight into Draper. He
explained that Rosario then twisted Draper’s arm behind his
back, and he “heard the bone pop.” Draper testified that
Rosario then slammed his head against the concrete and that
Draper eventually heard someone say, “Get off of him.”
Rosario’s version of events is quite different. He testified
that as he reached for his radio to notify the yard staff that he
would be leading an inmate out of the building, Draper
unexpectedly “placed his foot on the grill gate, and lunged his
body back towards” Rosario. Rosario explained that, while
keeping his hands on Draper, he moved out of the way as
Draper fell to the ground. He then held Draper down until

1

We take the factual background relating to the altercation between
Draper and Rosario from the evidence presented at trial. In doing so, we
construe the facts in the light most favorable to the jury’s verdict. Pavao
v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). Nonetheless, we describe
both parties’ version of events because an appropriate cost award,
discussed in Part II.D, depends in part on “the closeness and difficulty of
the issues in the case.” Escriba v. Foster Poultry Farms, Inc., 743 F.3d
1236, 1248 (9th Cir. 2014) (citing Ass’n of Mex.-Am. Educators v.
California, 231 F.3d 572, 592–93 (9th Cir. 2000) (en banc)).

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 7 of 37

DRAPER V. ROSARIO

7

other officers arrived a few minutes later. Aside from
holding Draper down, Rosario denied using any force.
Later that day, Rosario wrote a rules violation report
charging Draper with assault on a peace officer. Another
staff member, Rogers, ultimately conducted a hearing on the
rules violation charge and found Draper guilty. Draper filed
several grievances related to these events, including one that
accused Rogers of having determined his guilt before the
hearing. Draper did not, however, complete the three levels
of the administrative appeal process for the grievance against
Rogers.2
Draper filed a pro se complaint in district court pursuant
to 42 U.S.C. § 1983, alleging violations of his Eighth and
Fourteenth Amendment rights by Rosario, Rogers, and
several other defendants (“Defendants”).3 The district court
granted Draper in forma pauperis status. After the district
court screened the complaint and found that it stated
cognizable claims, the court ordered Defendants to respond.

2

In California’s prison system, a prisoner may administratively appeal
“any policy, decision, action, condition, or omission by the department or
its staff that the inmate . . . can demonstrate as having a material adverse
effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15,
§ 3084.1. There is one informal level and three formal levels of review,
although lower levels of review may be bypassed by administrators. To
satisfy the exhaustion requirement of the PLRA, 42 U.S.C. § 1997e(a), a
prisoner is generally required to appeal the grievance and receive a
decision at the third level of review. Cal. Code Regs. tit. 15, § 3084.1(b).
3
Draper’s complaint included allegations that a third correctional officer
had violated his due process rights by altering a videotape documenting
Draper’s injuries and that prison medical staff had improperly denied him
medical care in violation of the Eighth Amendment. Draper does not
challenge the dismissal of these claims.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 8 of 37

8

DRAPER V. ROSARIO

Defendants moved to dismiss all claims. Relevant to this
appeal, Defendants argued that Draper had failed to exhaust
his claim against Rogers through the prison grievance
process. The district court dismissed Draper’s due process
claim for failure to exhaust his administrative remedies but
declined to dismiss the Eighth Amendment claim against
Rosario. Rosario moved for summary judgment, which the
district court denied, finding that there were triable issues of
fact. The court also appointed pro bono counsel to represent
Draper at trial.
Draper proceeded to trial on his claim that Rosario had
violated his Eighth Amendment right to be free from
excessive force. See, e.g., Hudson v. McMillian, 503 U.S. 1,
6–7 (1992). Prior to trial, Draper requested that three
prisoner eyewitnesses be allowed to testify. The district court
issued writs of habeas corpus ad testificandum for two
witnesses, Mario Thompson and John Doe.4 The court denied
Draper’s request with respect to the third witness, Richard
Shepard, because Shepard had been transferred to a different
prison and would be more difficult to transport to trial. All
three witnesses had observed the altercation between Draper
and Rosario and were prepared to testify that Rosario had
slammed Draper against the sally port gate and onto the
prison floor while Draper was handcuffed. Shortly before
trial was scheduled to begin, Doe contacted Draper’s counsel
to inform him “that he had received an explicit threat to his
life from other inmates if he were to testify at trial.” The

4
We do not use this witness’s name because he was threatened in prison
in connection with this lawsuit. Accordingly, the district court allowed
documents with the witness’s name to be filed under seal and redacted
portions of the transcript that included his name. For ease of discussion,
we refer to the witness as “John Doe” or “Doe.”

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 9 of 37

DRAPER V. ROSARIO

9

inmates had told him that it was against the rules to “snitch,”
and counsel believed the threats to be racially motivated. The
district court vacated the writ of habeas corpus ad
testificandum for Doe and issued a writ for Shepard to testify
in Doe’s place.
At trial, Draper testified to his version of events, which
was supported by the testimony of the two prisoner
eyewitnesses (Thompson and Shepard). A third prisoner
testified about his own similar prior altercation with Rosario.
In addition, a medical expert witness and Draper’s
investigator both testified. For the defense, Rosario testified,
as did Officers Eddie Colter and Pyong Lee, who generally
corroborated Rosario’s account. The Chief Medical Officer
of the California Department of Corrections and
Rehabilitation (“CDCR”) also testified for the defense
regarding Draper’s injuries as documented in his prison
medical records.
The parties’ closing arguments focused on convincing the
jury of which version of events was most credible. Rosario’s
attorney argued that the correctional officer witnesses had
“everything to lose” by committing perjury, “in contrast to
the inmate witnesses you heard.” He explained that “Draper
and his inmate witnesses have little, if anything, to lose by
committing perjury because they are already in prison,”
whereas “Colter and Lee, both honorably discharged from
military service before their long service with the CDCR,
have much to lose. A conviction for perjury would end Lee’s
career [and] . . . could possibly result in a prison term for both
of them.” Draper’s attorney did not object to these
statements, nor did he request a curative instruction.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 10 of 37

10

DRAPER V. ROSARIO

The jury returned a verdict in favor of Rosario, and the
district court entered judgment. Rosario filed an application
to tax costs, which Draper opposed. The district court
ultimately awarded $3,018.35 in costs against Draper. Draper
timely appealed.
II.
A.
The PLRA requires prisoners to exhaust available
administrative remedies prior to filing a § 1983 lawsuit
challenging prison conditions. 42 U.S.C. § 1997e(a); Porter
v. Nussle, 534 U.S. 516, 520 (2002). We review de novo a
district court’s dismissal for failure to exhaust. Williams v.
Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015).
Prisoners need only exhaust “available” administrative
remedies; remedies are not considered “available” if, for
example, prison officials do not provide the required forms to
the prisoner or if officials threaten retaliation for filing a
grievance. See McBride v. Lopez, 807 F.3d 982, 987 (9th Cir.
2015); Albino v. Baca, 747 F.3d 1162, 1177 (9th Cir. 2014)
(en banc). Draper does not dispute that he failed to exhaust
administrative remedies with respect to his procedural due
process claim against Rogers. He alleged, however, that
prison officials obstructed his efforts to file grievances and
administrative appeals. He also argues that the district court
applied the wrong standard of review in light of our recent en
banc opinion in Albino v. Baca.
In Albino, we held that because non-exhaustion is an
affirmative defense, the defendant bears the burden of
proving that an administrative remedy was available to the

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 11 of 37

DRAPER V. ROSARIO

11

prisoner and that he failed to exhaust such remedy. 747 F.3d
at 1172. “Once the defendant has carried that burden, the
prisoner has the burden of production. That is, the burden
shifts to the prisoner to come forward with evidence showing
that there is something in his particular case that made the
existing and generally available administrative remedies
effectively unavailable to him.” Id. We also clarified in
Albino that the proper procedure for raising non-exhaustion
is by moving for summary judgment rather than by filing an
unenumerated Rule 12(b) motion. Fed. R. Civ. P. 12; Albino,
747 F.3d at 1169–71. Remand is the usual remedy when the
district court fails to follow this procedure. See, e.g.,
Bejarano v. Allison, 622 F. App’x 612 (9th Cir. 2015); Fratus
v. Peterson, 584 F. App’x 606 (9th Cir. 2014).
Remand is not necessary, however, if the district court’s
dismissal of the plaintiff’s claim can be construed as a grant
of summary judgment. In Williams, we concluded that
“[b]ecause it is clear that the district court considered
evidence submitted by the parties in reaching its decision, we
construe the district court’s [dismissal of the complaint] as a
grant of summary judgment on the issue of exhaustion.”
775 F.3d at 1191.
Here, Defendants filed an unenumerated Rule 12(b)
motion rather than a motion for summary judgment. The
magistrate judge’s findings and recommendations, however,
explained that “[b]ecause care must be taken not to resolve
credibility on paper as it pertains to disputed issues of
material fact, the undersigned applies the Rule 56 [summary
judgment] standards to exhaustion motions that require
consideration of materials extrinsic to the complaint.” The
magistrate judge also correctly recognized that “Defendants
bear the burden of proving plaintiff’s failure to exhaust.” He

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 12 of 37

12

DRAPER V. ROSARIO

ultimately concluded that Draper had failed to rebut
Defendants’ evidence of non-exhaustion by producing
evidence that put material facts into dispute, and the district
judge adopted his findings and recommendations. Because
the district court applied the correct (summary judgment)
standard, remand is not necessary.
In the alternative, Draper argues that even if the district
court applied the correct standard, dismissal was improper
because Draper provided evidence that put material issues of
fact in dispute. In Defendants’ motion to dismiss, they
identified five grievances that Draper filed regarding the
incidents at issue in this lawsuit. Three of these grievances
did not pertain to Draper’s claim against Rogers, and the
other two, which arguably did, were unexhausted: one
grievance was cancelled because Draper failed to participate
in the grievance interview, and another was rejected as
incomplete at the third level of review and was never
resubmitted. Defendants attached supporting declarations
from prison officials with documentation of these grievances
and the rejected appeal. In his pro se opposition to the
motion to dismiss, Draper did not contest that his due process
claim was unexhausted, but he claimed that there were
“Department of Corrections staff, and employees that
engaged in impeding and unethical conduct of obstructing
Plaintiffs CDC-602’s [grievance forms] from being exhausted
in a timely manner” (capitalization altered). Draper’s
complaint also alleged that he had made a “substantial effort
to obtain administrat[ive] remedies at C.S.P.-Solano” and that
“prison administrat[ors] and employees [had] prohibited and
impeded” his efforts to “exhaust[] [his] CDC-602[]
administrative remedies” (capitalization altered).

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 13 of 37

DRAPER V. ROSARIO

13

The district court properly concluded that Draper’s
unsupported allegations were insufficient to create a triable
issue of material fact. To meet his burden of production,
Draper’s verified complaint or pro se opposition needed to
include evidence that there was “something in his particular
case that made the existing and generally available
administrative remedies effectively unavailable to him.”
Albino, 747 F.3d at 1172. Although pro se pleadings must be
construed liberally, Thompson v. Davis, 295 F.3d 890, 895
(9th Cir. 2002), the district court did not err in concluding
that Draper needed to provide some explanation of the kinds
of “impeding and unethical conduct” that prison officials had
allegedly undertaken, once Defendants had provided
documentation of non-exhaustion and facially legitimate
reasons for rejecting Draper’s administrative appeals.5
Draper did not identify any actions that prison staff took that
impeded his ability to exhaust his administrative remedies,
nor did he otherwise explain why he failed to comply with the
administrative process. Because Draper failed to rebut
Defendants’ evidence of non-exhaustion, the district court
properly dismissed his procedural due process claim against
Rogers.
B.
Draper challenges a series of the district court’s
evidentiary rulings that resulted in the exclusion of witness

5

District courts must advise pro se prisoner litigants of the requirements
for opposing a motion for summary judgment pursuant to Rule 56 and,
under pre-Albino law, for opposing a motion to dismiss for failure to
exhaust available administrative remedies. See Klingele v. Eikenberry,
849 F.2d 409, 411–12 (9th Cir. 1988). Here, the magistrate judge
informed Draper of these requirements.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 14 of 37

14

DRAPER V. ROSARIO

Doe’s testimony. We review the district court’s evidentiary
rulings for abuse of discretion. Valdivia v. Schwarzenegger,
599 F.3d 984, 988 (9th Cir. 2010).
A few days before trial was scheduled to begin, Doe
called Draper’s counsel to tell him “that he had received an
explicit threat to his life from other inmates if he were to
testify at trial.” Three inmates had approached him in the
yard and threatened to stab him if he testified because it was
“against the rules” to “snitch.” Counsel’s understanding was
that the threat was racially motivated: Draper was black,
while Rosario and Doe were white, and the prisoners who
threatened Doe were members of a white prison gang. Doe
indicated that he was afraid to testify in court but would be
willing to participate in a deposition.
Draper’s counsel requested permission to take a video
deposition of Doe for presentation at trial. The district court
denied Draper’s request to present deposition testimony but
granted his alternative request that Shepard—the third
eyewitness, who was housed farther away—be permitted to
testify in Doe’s stead. On the first day of trial, Draper’s
counsel requested that Doe be allowed to testify via video
transmission from prison, which Doe had recently informed
counsel he would be willing to do. The court denied that
request.
At the close of Draper’s case-in-chief, counsel requested
that Doe’s prior sworn statement, taken several months before
any threat was made, be admitted into evidence. The district
court also denied this request, and Doe’s testimony was not
presented to the jury. Draper argues that the district court
erred in denying his application to present Doe’s testimony
by video deposition, in denying his motion to allow Doe to

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 15 of 37

DRAPER V. ROSARIO

15

testify by simultaneous video transmission, and in excluding
Doe’s written sworn statement. We conclude that the district
court did not abuse its discretion.
1.
Draper argues that the district court erred in denying his
motion to take Doe’s deposition and present the deposition
testimony at trial. Federal Rule of Civil Procedure
32(a)(4)(E) provides that deposition testimony of an
“unavailable witness” may be admitted at trial if the court
finds “that exceptional circumstances make it desirable . . . to
permit the deposition to be used.” Federal Rule of Evidence
804(a)(2) specifies that for hearsay purposes, a witness is
“unavailable” if he refuses to testify despite a court order to
do so. Here, the district court had issued a writ of habeas
corpus ad testificandum, which is the normal substitute for a
subpoena when the witness is incarcerated. Cf. Demarest v.
Manspeaker, 498 U.S. 184, 189–91 (1991) (holding that
prisoners who testify in federal court are entitled to witness
fees under 28 U.S.C. § 1821, even though “prisoners are
technically ‘produced’ under a writ of habeas corpus ad
testificandum, rather than summoned by a subpoena”). A
writ of habeas corpus ad testificandum thus qualifies as a
court order for purposes of Rule 804(a)(2).
Although it would have been within the district court’s
discretion to authorize Draper to take Doe’s deposition, the
court was not required to do so. Significantly, Draper’s
request to take an additional deposition was on the eve of
trial, for the purpose of offering the deposition testimony at
trial. Rule 804(a)(2) would have allowed preexisting
deposition testimony to be admitted, but it did not compel the
district court to allow Draper to take an additional deposition

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 16 of 37

16

DRAPER V. ROSARIO

when it reasonably concluded that the circumstances did not
warrant it. Moreover, the “exceptional circumstances” prong
of Rule 32(a)(4) applies only “if the court finds . . . that
exceptional circumstances make it desirable—in the interest
of justice and with due regard to the importance of live
testimony in open court—to permit the deposition to be
used.” Fed. R. Civ. P. 32(a)(4) (emphasis added).
The district court reasonably concluded that it would not
be “desirable . . . to permit the deposition to be used.” Id.
The court instead granted Draper’s alternative request that
Shepard be allowed to testify in place of Doe. The grant of
alternative relief was reasonable. Draper’s attorney’s initial
declaration, attached to his motion to obtain attendance of
prisoner witnesses, contained identical descriptions of Doe’s
and Shepard’s anticipated testimony. A later declaration
submitted by Draper’s investigator contained more detailed
descriptions of each witness’s expected testimony, and the
descriptions were still very similar. Given the cumulative
nature of the testimony of these two witnesses and the fact
that both witnesses generally corroborated Draper’s account,
it was not an abuse of discretion for the district court to
conclude that exceptional circumstances did not require
taking Doe’s deposition for presentation at trial.
2.
We also conclude that the district court did not abuse its
discretion in denying Draper’s motion to allow Doe to testify
by video transmission. Federal Rule of Civil Procedure 43(a)
provides that “[f]or good cause in compelling circumstances
and with appropriate safeguards, the court may permit
testimony in open court by contemporaneous transmission
from a different location.” See also Beltran-Tirado v. INS,

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 17 of 37

DRAPER V. ROSARIO

17

213 F.3d 1179, 1185–86 (9th Cir. 2000) (rejecting a due
process objection to telephonic testimony); Alderman v. SEC,
104 F.3d 285, 288 n.4 (9th Cir. 1997) (affirming an agency’s
credibility findings based on telephonic testimony). The
advisory committee notes, however, state that “[t]he
importance of presenting live testimony in court cannot be
forgotten” and that contemporaneous transmission “is
permitted only on showing good cause in compelling
circumstances.” Fed. R. Civ. P. 43 advisory committee’s
note.
Here, the district court expressed reasonable concern over
Doe’s ability to testify safely, even by contemporaneous
video transmission. Draper’s initial motion to take Doe’s
deposition stated that “the witness is willing to testify under
oath and be cross examined at a time not directly linked to
trial” (emphasis added). Presumably, Doe was concerned
about testifying during the trial because the prisoners who
had threatened him might be suspicious of his absence.
Although counsel later clarified that Doe “would be willing
to testify live, but by video conference, if basic safety
precautions were taken,” the district court could reasonably
have been concerned that testifying by video might still
endanger the witness. Moreover, Doe’s testimony was
largely cumulative of Shepard’s and Thompson’s testimony.
The district court therefore did not abuse its discretion in
denying Draper’s motion to allow Doe to testify by video
transmission.6

6
Draper also argues that the district court abused its discretion by
treating the request for live video testimony as a request for
reconsideration of her prior ruling regarding the deposition testimony.
Even if the district court erred in treating the request as a motion for
reconsideration, the decision not to allow the video testimony still would

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 18 of 37

18

DRAPER V. ROSARIO
3.

The district court also properly excluded Doe’s sworn
written statement. Draper argues that the statement was
admissible under the “catchall” hearsay exception, Federal
Rule of Evidence 807. To be admissible under Rule 807, a
hearsay statement must, among other factors, be “more
probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable
efforts.” Fed. R. Evid. 807(a)(3). During the proffer in
support of the request for live video testimony, Draper’s
counsel argued that Doe’s testimony was unique because he
“saw Mr. Draper put his foot against the bars to try to prevent
his head and body from hitting the bars, [and] the witness was
distinct that the foot move was defensive.” While the other
prisoner witnesses (Shepard and Thompson) did not provide
this exact account, they both testified that Draper was at no
time resisting Rosario and that Rosario was the aggressor.
On this record, the district court reasonably concluded that
Doe’s statement about Draper’s defensive foot move was not
significantly more probative than the testimony already
presented.
C.
1.
We turn to whether defense counsel’s statements during
closing argument rendered Draper’s trial fundamentally
unfair. Draper argues that defense counsel improperly
vouched for the credibility of correctional officers Colter and
have been well within the court’s discretion. Thus, any error in applying
the wrong legal standard was harmless. See Fed. R. Civ. P. 61.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 19 of 37

DRAPER V. ROSARIO

19

Lee when he argued that they could lose their jobs or face
imprisonment if they lied on the stand, whereas the prisoner
witnesses had little to lose by perjuring themselves. Draper
did not object to these statements. We conclude that these
statements were improper, but it was not plain error for the
district court to fail to take sua sponte corrective action.
In the criminal context, we have recognized two types of
improper vouching. The first type “consists of placing the
prestige of the government behind a witness through personal
assurances of the witness’s veracity.” United States v.
Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993), as amended
on denial of reh’g (Apr. 15, 1993). The second type consists
of “suggesting that information not presented to the jury
supports the witness’s testimony.” Id.
Statements about the consequences of lying on the stand
for a law enforcement officer’s career generally fall into the
second category because those statements rely on evidence
outside the record. In United States v. Weatherspoon,
410 F.3d 1142, 1146 (9th Cir. 2005), we characterized the
following statement, made by a prosecutor during closing
argument, as “clearly improper”:
[The police officer witnesses] had no reason
to come in here and not tell you the truth.
And they took the stand and they told you the
truth. I guess, if you believe [defense
counsel], they must have lied at the scene
there; they came into this court and they lied
to you; they lied to this judge; they lied to me;
they lied to my agent, Agent Baltazar. I guess
they lied to the dispatcher when they called it
in. These are officers that risk losin’ their

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 20 of 37

20

DRAPER V. ROSARIO
jobs, risk losin’ their pension, risk losin’ their
livelihood. And, on top of that if they come in
here and lie, I guess they’re riskin’ bein’
prosecuted for perjury. Doesn’t make sense
because they came in here and told you the
truth, ladies and gentlemen.

The prosecutor’s argument that “the existence of legal and
professional repercussions served to ensure the credibility of
the officers’ testimony” was sufficient “for the statement to
be considered improper as vouching based upon matters
outside the record.” Id. Similarly, in United States v. Combs,
379 F.3d 564, 574–75 (9th Cir. 2004), we held that a
prosecutor engaged in “improper rebuttal based upon matters
outside the record” when she argued that “in order to acquit
[the defendant], the jury had to believe that agent Bailey
[would] risk[] losing his job by lying on the stand.” See also
United States v. Boyd, 54 F.3d 868, 871–72 (D.C. Cir. 1995)
(holding that a prosecutor improperly “relied on evidence not
in the record” when she argued that police witnesses would
not “jeopardize their careers and risk criminal prosecution”
for perjury, and collecting cases).
While the first type of vouching—placing the “prestige of
the government behind a witness”7—is particularly

7

Draper argues that because the jury knew that defense counsel was a
government lawyer, the vouching statements carried an improper
implication of governmental support, similar to that of a prosecutor.
Draper is correct that defense counsel introduced himself to the jurors as
“an attorney with the Office of the Attorney General, for the State of
California” and introduced his colleague as the “Supervising Deputy
Attorney General.” Because we conclude that defense counsel improperly
relied on evidence outside the record in his closing argument, we do not
decide whether the statements were improper for this additional reason.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 21 of 37

DRAPER V. ROSARIO

21

problematic in criminal trials, see Weatherspoon, 410 F.3d at
1147–48, the second type of vouching—relying on evidence
outside the record—is problematic in both civil and criminal
trials. During closing argument in a civil case, counsel is
permitted to make inferences and advance “plausible
argument[s] in light of the record.” Settlegoode v. Portland
Pub. Sch., 371 F.3d 503, 518 (9th Cir. 2004). “By contrast,
inferences unsupported by the evidence are improper.”
Robert E. Jones et al., Rutter Group Prac. Guide Fed. Civ.
Trials & Evid. Ch. 14-B (2016) (citing United States v. Ruiz,
710 F.3d 1077, 1086 & n.6 (9th Cir. 2013)). In Bird v.
Glacier Electric Cooperative, Inc., 255 F.3d 1136, 1148–52
(9th Cir. 2001), we found reversible error in a civil case when
counsel’s statements during closing argument appealed to the
racial biases of the jury. We explained that the “broad racial
statements” used by plaintiff’s counsel were “not specific to
the [defendant] or related to the [defendant]’s particular
conduct in [that] case,” and that there was “no evidence in the
record” to support counsel’s allegations of bias. Id. at 1151.
Similarly, in Hemmings v. Tidyman’s Inc., 285 F.3d 1174,
1192–95 (9th Cir. 2002), we held that plaintiff’s counsel’s
statement during closing argument that she had previously
sued the defendant was plainly improper. Both cases, though
not addressing vouching specifically, stand for the
unremarkable proposition that counsel in a civil trial may not
rely on evidence outside the record during closing argument.
Other courts have recognized this principle more directly.
In Spicer v. Rossetti, 150 F.3d 642, 644 (7th Cir. 1998), an

Even if the statements improperly placed the “prestige of the government
behind” the correctional officer witnesses, see Weatherspoon, 410 F.3d at
1148, they would not rise to the level of plain error for the reasons stated
in Part II.C.2 below.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 22 of 37

22

DRAPER V. ROSARIO

excessive force case brought by a prisoner, the Seventh
Circuit ordered a new trial because “the case turned entirely
on [the plaintiff]’s credibility, versus that of the guards,” and
the guards’ attorney had made multiple statements that the
plaintiff’s attorney doubted his client’s honesty. Although
plaintiff’s attorney objected, the court overruled his
objections. Id. The Seventh Circuit noted that “counsel may
not express his beliefs regarding the honesty of the opposing
party’s witnesses” and that an attorney’s opinions regarding
witness credibility “have no place in a court of law.” Id.; see
also Lenard v. Argento, 699 F.2d 874, 897 (7th Cir. 1983).
The Supreme Court has also recognized that the
prohibition on counsel communicating personal beliefs to the
jury, including beliefs about witness credibility, extends
beyond government prosecutors. In United States v. Young,
470 U.S. 1, 8–9 (1985), the Supreme Court stated that
“[d]efense counsel, like the prosecutor, must refrain from
interjecting personal beliefs into the presentation of his case.”
The Court quoted the then-current ABA Model Code of
Professional Responsibility, which stated:
In appearing in his professional capacity
before a tribunal, a lawyer shall not . . .
[a]ssert his personal opinion as to . . . the
credibility of a witness, as to the culpability of
a civil litigant, or as to the guilt or innocence
of an accused; but he may argue, on his
analysis of the evidence, for any position or
conclusion with respect to matters stated
herein.
Id. at 7 n.3 (quoting Model Code of Prof’l Responsibility DR
7-106(C) (Am. Bar Ass’n 1980)). The current version of the

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 23 of 37

DRAPER V. ROSARIO

23

Model Rules similarly states that, in both civil and criminal
trials, a lawyer shall not “state a personal opinion as to . . . the
credibility of a witness, the culpability of a civil litigant or the
guilt or innocence of an accused.” Model Rules of Prof’l
Conduct R. 3.4(e) (2015).
In sum, our prior case law indicates that attorneys may
not rely on evidence outside the record during closing
argument and that prosecutors may not vouch for witnesses’
credibility. We now make clear that the prohibition on
improper vouching based on evidence outside the record
extends to civil trials.
2.
Because Draper’s attorney failed to object to opposing
counsel’s improper statements, our review is for plain error.
Bird, 255 F.3d at 1148. In the civil context, “[p]lain error
review requires: (1) an error, (2) the error is plain or obvious,
(3) the error was prejudicial or [a]ffects substantial rights, and
(4) review is necessary to prevent a miscarriage of justice.”
Hemmings, 285 F.3d at 1193. Reversal “is available only in
‘extraordinary cases.’” Id. (quoting Bird, 255 F.3d at 1148).
We conclude that, although defense counsel’s statements
were improper, they did not rise to the level of plain error
requiring reversal.
During his closing argument, defense counsel argued that
the correctional officer witnesses were more credible because
they had “no reason to commit perjury” and that they had
more to lose by lying on the stand than the inmate witnesses.
He explained that “Draper and his inmate witnesses have
little, if anything, to lose by committing perjury because they
are already in prison,” whereas

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 24 of 37

24

DRAPER V. ROSARIO
Colter and Lee, both honorably discharged
from military service before their long service
with the CDCR, have much to lose. A
conviction for perjury would end Lee’s career.
And a conviction for perjury would—could
possibly result in a prison term for both of
them if they committed perjury. The same is
true for Sergeant Fowler and Sergeant Peel.
They have no reason to commit perjury in this
case, and they have everything to lose by
doing so . . . .

These statements are materially indistinguishable from those
found improper in Weatherspoon, where the prosecutor
stated, “[t]hese are officers that risk losin’ their jobs, risk
losin’ their pension, risk losin’ their livelihood. And, on top
of that if they come in here and lie, I guess they’re riskin’
bein’ prosecuted for perjury.” 410 F.3d at 1146. In fact,
defense counsel in Draper’s case expressed more certainty
about the consequences of lying on the stand than the
prosecutor did in Weatherspoon.
In that case, the
prosecutor’s vouching was improper even though the
statements were “not quite as egregious” as a case in which
the prosecutor told the jury that they could be “darn sure [the
agent] would get fired for perjuring himself.” Id. (quoting
Combs, 379 F.3d at 568) (alteration in original). In Draper’s
case, defense counsel stated, without reservation: “A
conviction for perjury would end Lee’s career.”
Although this case is distinguishable from Weatherspoon
because it is civil rather than criminal, the statements made
by defense counsel in Draper’s case were more egregious
than the improper statements in Weatherspoon. Cf. Ruiz,
710 F.3d at 1086 & n.6 (finding no improper vouching where

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 25 of 37

DRAPER V. ROSARIO

25

a prosecutor characterized law enforcement officers as “just
doing their jobs, just police officers responding to an
emergency call”). Accordingly, defense counsel’s statements
about the correctional officer witnesses’ credibility were
improper, and it was error for the district court to allow those
statements during closing.
The second prong of the plain error analysis requires the
error to be “plain or obvious.” See Hemmings, 285 F.3d at
1193; cf. United States v. Olano, 507 U.S. 725, 734 (1993)
(explaining that in the criminal context, “[a]t a minimum, [a]
court of appeals cannot correct an error pursuant to [Federal
Rule of Criminal Procedure] 52(b) unless the error is clear
under current law”). The error here does not satisfy that test.
At the time of Draper’s trial, our circuit precedent had not
squarely applied the prohibition on improper vouching in the
civil context.8 As outlined above, neither criminal nor civil
lawyers may rely on evidence outside the record when
arguing to a jury, and we previously have held that certain
types of improper statements during closing argument
warrant reversal in civil cases. Nonetheless, this precedent
was not sufficiently clear at the time of trial to put the district
court on notice that defense counsel’s statements were
impermissible. Because the court’s error was not “plain or
obvious” in this case, we need not address the remaining
prongs of the analysis.
Thus, because it was not plain error to permit the
improper statements, reversal is not required.

8

In Radwan v. County of Orange, 519 F. App’x 490, 491 (9th Cir.
2013), an unpublished disposition issued the year before Draper’s trial, we
explicitly declined to decide “whether the rule against vouching applies
to civil trials” because any error in that case was harmless.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 26 of 37

26

DRAPER V. ROSARIO
D.
1.

Finally, Draper challenges the district court’s cost award.
We conclude that the court’s award of $3,018.35 in costs was
an abuse of discretion.
We first address our jurisdiction to review the cost award.
A notice of appeal must “designate the judgment, order, or
part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). But
“an order fixing costs in the district court, while an appeal
was pending, should be considered an inseparable part of the
pending appeal” and need not be separately appealed.
California Union Ins. Co. v. Am. Diversified Sav. Bank,
948 F.2d 556, 567 (9th Cir. 1991) (internal quotation marks
omitted); see Dawson v. City of Seattle, 435 F.3d 1054, 1070
(9th Cir. 2006) (“[O]ur case law allows a party to contest an
award of costs on appeal even if the notice of appeal did not
raise the issue expressly.”). Treating a cost award as part of
the judgment is consistent with 28 U.S.C. § 1920, which
provides that “[a] bill of costs shall be filed . . . and, upon
allowance, included in the judgment or decree.”9

9

Taxable costs, like those awarded against Draper, are limited to a
specific set of items delineated in 28 U.S.C. § 1920, which include “fees
of the clerk and marshal; certain fees for transcripts; certain fees for
printing and witnesses; the costs of copies needed for use in the case;
docketing fees; and compensation of court appointed experts and
interpreters.” Grove v. Wells Fargo Fin. California, Inc., 606 F.3d 577,
579 (9th Cir. 2010). Such costs may be taxed against the losing party by
“[a] judge or clerk,” 28 U.S.C. § 1920, and are treated as part of the final
judgment. See California Union, 948 F.2d at 567. On the other hand,
when a prevailing party moves to recover attorney fees, “the court must,
on a party’s request, give an opportunity for adversary submissions on the

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 27 of 37

DRAPER V. ROSARIO

27

In California Union, 948 F.2d at 567, we addressed a
situation precisely analogous to Draper’s: the losing party
filed a notice of appeal from the final judgment prior to the
district court’s order taxing costs, and it did not file a separate
appeal from the cost award or amend its original notice of
appeal. We held that “[a]lthough it would have been
impossible for [the losing party] to have filed a notice of
appeal from an order that did not exist as of the date of the
notice, we determine that the notice of appeal from the
judgment incorporates the appeal of the denial of the motion
to retax costs.” Id.; see also Dawson, 435 F.3d at 1070.
Because Draper filed a timely notice of appeal from the final
judgment, and the judgment incorporates the district court’s
cost award, we have jurisdiction to review the order taxing
costs.
2.
Federal Rule of Civil Procedure 54(d)(1) provides that
“[u]nless a federal statute, these rules, or a court order
provides otherwise, costs—other than attorney’s fees—should
be allowed to the prevailing party.” See also 28 U.S.C.
§ 1920. We review a district court’s award of costs for abuse
of discretion. Save Our Valley v. Sound Transit, 335 F.3d
932, 945 n.12 (9th Cir. 2003). We have interpreted Rule
54(d)(1) as creating “a presumption for awarding costs to
motion” and “[t]he court must find the facts and state its conclusions of
law.” Fed. R. Civ. P. 54(d)(2)(C). Parties claiming entitlement to
attorney fees also may, in certain situations, recover non-taxable costs,
such as expert fees pursuant to 42 U.S.C. § 1988(c). When a district court
enters an award of attorney fees and costs, such award must therefore be
separately appealed. See Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th
Cir. 1999); Kennedy v. Applause, Inc., 90 F.3d 1477, 1482–83 (9th Cir.
1996).

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 28 of 37

28

DRAPER V. ROSARIO

prevailing parties; the losing party must show why costs
should not be awarded.” Save Our Valley, 335 F.3d at
944–45. In Association of Mexican-American Educators v.
California, 231 F.3d 572, 591 (9th Cir. 2000) (en banc), we
explained that Rule 54(d)(1) also “vests in the district court
discretion to refuse to award costs.” When determining
whether to exercise that discretion, we have said that
[a]ppropriate reasons for denying costs
include: (1) the substantial public importance
of the case, (2) the closeness and difficulty of
the issues in the case, (3) the chilling effect on
future similar actions, (4) the plaintiff’s
limited financial resources, and (5) the
economic disparity between the parties. This
is not “an exhaustive list of ‘good reasons’ for
declining to award costs,” but rather a starting
point for analysis.
Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236,
1247–48 (9th Cir. 2014) (citing Ass’n of Mex.-Am. Educators,
231 F.3d at 592–93). Although the final two factors focus on
the financial resources of the parties, proceeding in forma
pauperis does not, by itself, exempt a prisoner from paying
costs. Indeed, 28 U.S.C. § 1915 provides that when costs are
awarded against an indigent prisoner, the prisoner will be
required to pay those costs on a monthly payment plan of
twenty percent of the prisoner’s income from the previous
month. See id. § 1915(b)(2), (f)(2)(B).10 Thus, the final two

10

Section 1915(f)(2)(B) provides that “the prisoner shall be required to
make payments for costs under this subsection in the same manner as is
provided for filing fees under subsection (a)(2).” This cross-reference,
however, appears to contain a typographical error. “Section 1915(f)(2)(B)

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 29 of 37

DRAPER V. ROSARIO

29

factors must be considered in the context of the record as a
whole. In addition, a losing party need not demonstrate that
all five factors weigh against imposing costs; rather, the list
provides a “starting point for analysis.” Escriba, 743 F.3d at
1248.
We have affirmed the denial of costs when, for example,
a prevailing plaintiff in a contract action recovered
substantially less in damages than were initially claimed, and
the defendant prevailed on two affirmative defenses.
Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d
1016, 1022–24 (9th Cir. 2003). We also have affirmed the
denial of costs where a plaintiff unsuccessfully challenged her
termination under the Family and Medical Leave Act
(“FMLA”). In Escriba, we applied the Association of
Mexican-American Educators factors and concluded that
individual FMLA cases protect vital rights for workers; that
the case was close, turning on conflicting witness testimony
and complex FMLA analysis; that taxing costs could chill
future FMLA actions; and that the plaintiff had limited
financial resources. Escriba, 743 F.3d at 1248–49.
In limited circumstances, we have also found an award of
costs to be an abuse of discretion. See Save Our Valley,
335 F.3d at 945. In Stanley v. University of Southern
California, 178 F.3d 1069, 1080 (9th Cir. 1999), a former
head women’s basketball coach sued a university for gender
discrimination and breach of contract. After the university
prevailed, the district court ordered the plaintiff to pay

mistakenly refers to § 1915(a)(2) as the authoritative subsection for the
payment process. However, . . . § 1915(a)(2) does not contain a payment
procedure. The payment process is actually located in § 1915(b)(2).”
Talley-Bey v. Knebl, 168 F.3d 884, 887 (6th Cir. 1999).

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 30 of 37

30

DRAPER V. ROSARIO

$46,710.97 in costs. We held that the court abused its
discretion in denying the plaintiff’s motion to re-tax costs,
both because the award could have left her indigent and
because it might chill future civil rights litigation. Id. at
1079–80; cf. Ass’n of Mex.-Am. Educators, 231 F.3d 572 (“In
keeping with our decision in Stanley, we note that divesting
district courts of discretion to limit or to refuse such
overwhelming costs in important, close, but ultimately
unsuccessful civil rights cases like this one might have the
regrettable effect of discouraging potential plaintiffs from
bringing such cases at all.”).
Each of the factors outlined in Association of MexicanAmerican Educators counsels against imposing a large cost
award in Draper’s case.11 231 F.3d at 592–93. First, the case
has “substantial public importance.” Id. at 592. Individual
Eighth Amendment cases are important for safeguarding the
rights and safety of prisoners. See Escriba, 743 F.3d at 1248
(citing as evidence of the public importance of the case a
“California public official’s statement that a case brought on
behalf of a single plaintiff as opposed to a class can still be
important because these issues ‘protect[ ] vital civil rights for
women in the work place’” (alteration in original)).

11

The dissent argues that these factors should not govern our review of
a district court’s decision to award costs to the prevailing party, but
instead only to our review of a district court’s decision not to award costs.
Although the district court is not ordinarily required to provide reasons for
awarding costs, cf. Association of Mexican-American Educators, 231 F.3d
at 591–93, the factors relevant to our review of the district court’s ruling
do not change depending on the outcome of that ruling. In other words,
in determining whether it is appropriate to deviate from the ordinary rule
of awarding costs to a prevailing party, the district court should consider
the same set of factors regardless of what the court ultimately decides.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 31 of 37

DRAPER V. ROSARIO

31

In addition, the case was close. Draper’s evidence of an
Eighth Amendment violation was sufficient to survive
summary judgment. Ultimately, the case turned on which
competing account of events the jurors believed. After
closing arguments, the jury deliberated for the remaining
half-day and then for several more hours the next morning
before returning a verdict for Rosario. After the jury returned
its verdict, the district court noted that the case was “welltried” and “hard-fought.”
Moreover, such a large cost award could chill similar
lawsuits challenging Eighth Amendment violations in jails
and prisons. Many would-be litigants in Eighth Amendment
excessive force cases, like Draper, have virtually no
resources. Even those with meritorious cases may choose not
to risk an unsuccessful lawsuit that could add to the fees and
costs associated with conviction and imprisonment. This is
particularly true for those whose cases, like Draper’s,
ultimately turn on the jury’s determination of whose account
of the event is more credible. We further note that district
courts have routinely declined to award costs against
prisoners proceeding in forma pauperis under similar
circumstances, citing potential chilling effects. See, e.g.,
Baltimore v. Haggins, No. 1:10-CV-00931-LJO, 2014 WL
804463, at *2 (E.D. Cal. Feb. 27, 2014) (denying $1,462.61
in costs and noting that “while this Court is what some may
call ‘inundated’ with similar cases filed under section 1983
by indigent inmates, the potential chilling effect of being
taxed with costs upon defeat cannot be ignored in cases such
as these”); Meeks v. Parsons, No. 1:03-CV-6700 OWW, 2010
WL 2867847, at *2 (E.D. Cal. July 21, 2010) (denying the
defendants’ motion to recover costs, in part because “an
award has the potential to chill meritorious civil rights
actions”); Jimenez v. Sambrano, No. 04CV1833 L(PCL),

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 32 of 37

32

DRAPER V. ROSARIO

2009 WL 937042, at *1 (S.D. Cal. Apr. 6, 2009) (granting a
motion to re-tax costs because “[a]warding a large sum of
costs against Plaintiff may have a chilling effect on future
civil rights litigants”).
The final two factors outlined in Association of MexicanAmerican Educators focus on “the plaintiff’s limited financial
resources” and “the economic disparity between the parties.”
Escriba, 743 F.3d at 1248 (citing Ass’n of Mex.-Am.
Educators, 231 F.3d at 592–93). Draper has virtually no
resources. At the time he filed his complaint, he had a
balance of $0.00 in his prison account, no checking or savings
account, no income during the past twelve months, and no
assets. He owed $4,779.94 in restitution and $464.02 for
other expenses, primarily litigation costs and legal mail, and
he was proceeding in forma pauperis. He represented himself
in this litigation for several years, until the district court
appointed pro bono counsel. There is no comparison between
Draper’s limited resources and those of the state of
California, which bore the defense costs.
Each of the factors listed above is an “[a]ppropriate
reason[] for denying costs,” Escriba, 743 F.3d at 1247–48,
or for a reduction in the amount awarded to the prevailing
party. In addition, the amount of costs is relevant in
determining whether a district court’s cost award is an abuse
of discretion. In Save Our Valley, we explained that
in the rare occasion where severe injustice
will result from an award of costs (such as the
injustice that would result from an indigent
plaintiff’s being forced to pay tens of
thousands of dollars of her alleged oppressor’s
legal costs), a district court abuses its

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 33 of 37

DRAPER V. ROSARIO

33

discretion by failing to conclude that the
presumption [in favor of awarding costs] has
been rebutted.
335 F.3d at 945; see Ass’n of Mex.-Am. Educators, 231 F.3d
at 593 (pointing to the “extraordinarily high” cost amount as
an appropriate reason to deny costs). Because several factors
weigh heavily against a large cost award in this case, and
severe injustice would result from such an award, the district
court abused its discretion in taxing costs of $3,018.35
against Draper. See Stanley, 178 F.3d at 1079–80.
Accordingly, we vacate the cost award and remand for the
district court to reconsider whether a cost award is warranted,
and, if so, an appropriate amount, accounting for the factors
discussed above. See Stanley, 78 F.3d at 1080.
*

*

*

For the reasons set forth above, we affirm the district
court’s dismissal of Draper’s due process claim and the
exclusion of testimony from witness Doe. We hold that
counsel in a civil trial may not rely on evidence outside the
record to vouch for the credibility of witnesses. On plain
error review, however, we conclude that defense counsel’s
improper statements during closing argument do not warrant
reversal. Finally, we hold that the court abused its discretion
in taxing $3,018.35 in costs.
The judgment is AFFIRMED. The award of costs is
VACATED and REMANDED for further consideration
consistent with this opinion.
The parties shall bear their own costs on appeal.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 34 of 37

34

DRAPER V. ROSARIO

BEA, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that the judgment in favor of the
defendants should be affirmed and thus join Parts I, II.A, II.B,
and II.C of the majority opinion. I decline to join Part II.D.
The district court did not abuse its discretion in taxing costs
against plaintiff John Clint Draper because the district court
justifiably followed the presumption of taxing costs against
the losing party, here, Draper.
The district court entered judgment in favor of the
defendants on June 24, 2014, and entered the order taxing
costs against Draper on July 23, 2014. I would affirm the
district court’s order taxing costs against Draper. Draper sued
the defendants; his case went to trial, and he lost. The
defendants sought to recoup from Draper $3,018.35 of costs
under Federal Rule of Civil Procedure 54(d)(1). Draper does
not dispute the amount of costs but contends that the
defendants, who prevailed, should not be awarded costs at all.
“Rule 54(d) creates a presumption for awarding costs to
prevailing parties; the losing party must show why costs
should not be awarded.” Save Our Valley v. Sound Transit,
335 F.3d 932, 944–45 (9th Cir. 2003). The district court, in a
reasoned order, followed this presumption and taxed costs
against Draper, the losing party. It did not abuse its discretion
in doing so.
The majority examines the factors from Association of
Mexican-American Educators v. California, 231 F.3d 572,
592–93 (9th Cir. 2000) (en banc),1 and concludes that the

1

“Appropriate reasons for denying costs include: (1) the substantial
public importance of the case, (2) the closeness and difficulty of the issues
in the case, (3) the chilling effect on future similar actions, (4) the

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 35 of 37

DRAPER V. ROSARIO

35

district court abused its discretion when it taxed costs against
Draper. Maj. Op. 28–33. The majority makes two mistakes.
First, it wrongly applies these factors to review the district
court’s award of costs to the prevailing party, Maj. Op.
30–32, when the factors are “reasons for refusing to award
costs,” Ass’n of Mex.-Am. Educators, 231 F.3d at 592
(emphasis added). As we have explained, “A district court
deviates from normal practice when it refuses to tax costs to
the losing party,” and “[t]he [Rule 54(d)] presumption itself
provides all the reason a court needs for awarding costs.”
Save Our Valley, 335 F.3d at 945; accord In re Online DVDRental Antitrust Litig., 779 F.3d 914, 932 (9th Cir. 2015).
Second, the majority ignores the fact that the district court
already considered these factors—though it was not required
to do so, see Save Our Valley, 335 F.3d at 945—and analyzes
and reweighs the factors de novo, Maj. Op. 28–33, when our
role is to review the district court’s order taxing costs for
abuse of discretion, see Ass’n of Mex.-Am. Educators,
231 F.3d at 591. The district court’s decision to follow the
presumption of taxing costs against the losing party, Draper,
was not an abuse of discretion—the district court did not
commit legal error, and its decision was not “illogical,
implausible, or without support in inferences that may be
drawn from the record.” United States v. Hinkson, 585 F.3d
1247, 1263 (9th Cir. 2009) (en banc); see Save Our Valley,
335 F.3d at 945.

plaintiff’s limited financial resources, and (5) the economic disparity
between the parties. This is not ‘an exhaustive list of “good reasons” for
declining to award costs,’ but rather a starting point for analysis.” Escriba
v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247–48 (9th Cir. 2014)
(quoting Ass’n of Mex.-Am. Educators, 231 F.3d at 593).

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 36 of 37

36

DRAPER V. ROSARIO

The majority can drum up only a single case in which we
held that the district court had abused its discretion when it
taxed costs against the losing party, Stanley v. University of
Southern California, 178 F.3d 1069 (9th Cir. 1999). Maj. Op.
29–30. But, in Stanley, we did not hold that costs could not be
taxed against the plaintiff, who lost on summary judgment,
“because the award could have left her indigent and because
it might chill future civil rights litigation.” Maj. Op. 30.
Rather, we remanded the case for the district court to
reconsider its decision on costs in light of the plaintiff’s
limited financial resources and the possible chilling effect an
award of costs could engender, factors the district court did
not consider initially. Stanley, 178 F.3d at 1079–80.2 Here,
the district court did consider those factors and found them
insufficient to overcome the presumption of taxing costs
against the losing party. And, in any event, we later clarified
that district courts are not required to “justify[] routine
awards of costs against losing parties in civil rights cases”
and recognized that Stanley instead stands for the narrow
proposition that, “in the rare occasion where severe injustice
will result from an award of costs (such as the injustice that
would result from an indigent plaintiff’s being forced to pay
tens of thousands of dollars of her alleged oppressor’s legal
costs), a district court abuses its discretion by failing to
conclude that the [Rule 54(d)] presumption has been
rebutted.” Save Our Valley, 335 F.3d at 945.
This case does not present “the rare occasion where
severe injustice will result from an award of costs.” Id. The
costs taxed against Draper total $3,018.35, a modest sum and
less than the amount awarded in Save Our Valley, where we
2

It is unclear from the district court docket in Stanley how the district
court ultimately allocated costs on remand.

Case: 14-16340, 09/07/2016, ID: 10114166, DktEntry: 74-1, Page 37 of 37

DRAPER V. ROSARIO

37

concluded that “[n]o such injustice will result from the award
of $5,310.55 in this case.” Id. Draper may pay these costs in
installments over time, depending on the income credited to
his prison account. See 28 U.S.C. § 1915(f)(2). This case
presented no legal questions of unusual public importance;
rather, as the majority admits, “the case turned on which
competing account of events the jurors believed.” Maj. Op.
31. The fact that this is a civil rights case is likewise
unimportant, because we have affirmed “routine awards of
costs against losing parties in civil rights cases,” even where
the case presented close legal questions of great public
importance. Save Our Valley, 335 F.3d at 946. That this case
was brought by a prisoner should counsel in favor of taxing
costs against Draper, because Congress enacted the Prison
Litigation Reform Act of 1995, of which 28 U.S.C.
§ 1915(f)(2)’s provision on payment of costs is a part, to
reduce the quantity of prisoner suits. See Woodford v. Ngo,
548 U.S. 81, 83 (2006).
The majority essentially establishes a rule that the
presumption of taxing costs against a losing party is rebutted
if the losing party is an indigent prisoner whose claim is
arguably meritorious and proceeds to trial. There is no legal
basis for such a rule. I would affirm the district court’s
decision to follow the presumption and tax costs against
Draper, the losing party.
*

*

*

Because the majority wrongly finds that the district court
abused its discretion by taxing costs against the losing party,
Draper, I respectfully dissent from Part II.D of the majority
opinion.