Polk v. Lattimore et al

Filing 112

ORDER Regarding 111 Motion for a Ruling on Bill of Costs Dated March 2, 2018, signed by Magistrate Judge Barbara A. McAuliffe on 7/31/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUSAN MAE POLK,

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Plaintiff,
v.
MARY LATTIMORE, et al.,
Defendants.

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No.: 1:12-cv-01156-DAD-BAM (PC)
ORDER REGARDING MOTION FOR A RULING
ON BILL OF COSTS DATED MARCH 2, 2018
(Doc. No. 111)

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Plaintiff Susan Mae Polk is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. On February 21, 2017, this action was dismissed for

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Plaintiff’s failure to comply with Rules 8(a) and 18(a). (Doc. No. 87.) Judgment was entered that same

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day. (Doc. No. 88.) On April 19, 2017, Plaintiff appealed. (Doc. No. 92.)

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On February 23, 2018, the Ninth Circuit Court of Appeals issued an order affirming in part and

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vacating in part the judgment, and remanding the action for further proceedings on a single claim.

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(Doc. No. 99.) The Ninth Circuit’s mandate was issued on March 19, 2018. (Doc. No. 101.)

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Currently before the Court is Plaintiff’s motion for a ruling on the bill of costs she submitted

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on March 2, 2018. (Doc. No. 111.) Plaintiff states that the costs of filing her appeal to the Ninth

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Circuit in this case were a hardship, and she seeks for the charge to be removed from her prison trust

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account and to be taxed against the defendants.

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“The controlling rule is Federal Rule of Appellate Procedure 39(a)(4), which provides that

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where ‘a judgment is affirmed in part, reversed in part, modified or vacated, costs are taxed only as the

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court orders.” Exxon Valdez v. Exxon Mobil, 568 F.3d 1077, 1081 (9th Cir. 2009). Here, the Ninth
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Circuit did not award any costs against any defendant. No defendant has been served in this action, as

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this case is still in the screening stage. Plaintiff’s contention of economic hardship is not sufficient

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grounds to order costs to be taxed against any defendant here. See 28 U.S.C. § 1915(b)(1) (providing

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no authority to waive, reduce, or suspend collection of filing fee for a pro se prisoner proceeding in

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forma pauperis).

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For these reasons, Plaintiff’s motion is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 31, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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