Harris v. Pimentel, et al.

Filing 176

ORDER granting 172 Motion to tax appellate filing fee; granting 173 Motion for Reconsideration and granting 174 Motion for Extension of time signed by Magistrate Judge Jeremy D. Peterson on 7/14/2018. (Second Amended Complaint due by 8/24/2018). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRELL HARRIS,

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Plaintiff,

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v.

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S. ESCAMILLA,
Defendant.

Case No. 1:13-cv-01354-DAD-JDP
ORDER GRANTING PLAINTIFF’S
REQUESTS TO
(1) TAX HIS APPELLATE FILING FEE;
(2) RECONSIDER COSTS TAXED
AGAINST PLAINTIFF FOR
PLAINTIFF’S DEPOSITION; AND
(3) EXTEND THE TIME TO FILE THE
SECOND AMENDED COMPLAINT.
(Doc. Nos. 172, 173, 174.)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action brought under 42 U.S.C. § 1983. On May 25, 2018, the U.S. Court of Appeals for the

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Ninth Circuit held that the court erred in granting summary judgment against plaintiff and that

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defendant Escamilla “shall bear the costs on appeal.” (Doc. No. 167 at 2-4, 6.) Accordingly, on

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June 19, 2018, the court granted plaintiff leave to amend his complaint and set a July 13, 2018,

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deadline for plaintiff to file a second amended complaint. (Doc. No. 171.) On July 5, 2018,

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plaintiff filed three motions; the court will discuss each in turn.

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1. Plaintiff’s Request to Tax His Appellate Filing Fee. (Doc. No. 172.)
Plaintiff moved to tax defendant Escamilla the cost of the appellate filing fee under Rule
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39 of the Federal Rules of Appellate Procedure. (Doc. No. 172.) Defendant Escamilla opposed

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this request, arguing that the appellate fee “is not a taxable cost under 28 U.S.C. § 1920” because

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plaintiff is proceeding in forma pauperis and “has not actually paid the filing fee.” (Doc. No. 175

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at 1.)

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Proceeding in forma pauperis is governed by 28 U.S.C. § 1915. The statute allows

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indigent prisoners to commence civil actions without paying filing fees, but it maintains that

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“prisoner[s] shall be required to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1).

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Accordingly, courts are required to assess prisoners’ ability to pay the filing fee, and, “when

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funds exist, collect [payments] of any court fees required by law.” See id. Therefore, pursuant to

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the Ninth Circuit’s instructions, the court grants plaintiff’s request to tax his appellate filing fee to

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the extent any filing fee was deducted from plaintiff’s trust account. Plaintiff may file a bill of

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costs under Rule 54(d) of the Federal Rules of Civil Procedure within 14 days of this order.

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2. Plaintiff’s Request to Reconsider Costs Taxed Against Plaintiff for Plaintiff’s
Deposition Transcript. (Doc. No. 173.)

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Plaintiff moved (Doc. No. 173) the court to reconsider its order granting in part
defendant’s request for costs. (Doc. No. 161.) In accordance with Rule 54(d) of the Federal Rules
of Civil Procedure, the court had taxed costs against the plaintiff in the amount of $500 for

plaintiff’s deposition transcript because defendant was the prevailing party. Per the Ninth Circuit’s
decision, defendant is no longer the prevailing party. Therefore, plaintiff’s motion is granted, and

the court vacates its prior orders (Doc. Nos. 161, 163) taxing costs against plaintiff in the amount
of $500.00. Plaintiff is entitled to reimbursement for any payments he has made toward the $500
in costs.
3. Plaintiff’s Request for an Extension of Time to File the Second Amended
Complaint. (Doc. No. 174.)
Plaintiff requested an extension of time to file a Second Amended Complaint. (Doc. No.
174.) Good cause appearing, the request is granted. The time for plaintiff to file his amended
complaint is extended from July 13, 2018, to August 24, 2018.

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IT IS SO ORDERED.

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Dated:
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July 14, 2018
UNITED STATES MAGISTRATE JUDGE

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