Andersen v. Montes et al

Filing 37

ORDER Denying Plaintiff's Request for Costs of Filing Fee for Notice of Appeal re 33 , signed by Magistrate Judge Stanley A. Boone on 3/26/18. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANDREW S. ANDERSEN,

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Plaintiff,

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v.
MARISELA MONTES, et al.,

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Defendants.

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ORDER DENYING PLAINTIFF’S REQUEST
FOR COSTS OF FILING FEE FOR NOTICE OF
APPEAL
[ECF No. 33]

U.S.C. § 1983.
On July 11, 2017, the instant action was dismissed for failure to state a cognizable claim for

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Case No.: 1:16-cv-00236-DAD-SAB (PC)

Plaintiff Andrew S. Andersen is appearing pro se in this civil rights action pursuant to 42

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relief and judgment was entered. (ECF Nos. 24, 25.)
On December 29, 2017, the United States Court of Appeals for the Ninth Circuit affirmed in

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part and vacated in part the Court’s July 11, 2017, judgment, and the action was remanded back to this

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Court. (ECF No. 30.)
On January 24, 2018, the Court directed Plaintiff to file an amended complaint only as to his

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allegations relating to an alleged facial challenge to the parole procedure. (ECF No. 32.)
On February 2, 2018, Plaintiff filed a motion for bill of courts in the amount of $505.00-the

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cost of the filing file for his notice of appeal. (ECF No. 33.)

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Pursuant to Federal Rules of Appellate Procedure 39, “if a judgment is affirmed in part,

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reversed in part, modified, or vacated, costs are taxed only as the court orders.” Fed. R. App. P.

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39(a)(4).
In this instance, the Ninth Circuit affirmed in part the court’s screening order which found that

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plaintiff’s as applied challenge to the parole procedures was not cognizable, but reversed as to

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plaintiff’s facial challenge to the parole procedures. (ECF No. 30.) As an initial matter, no Defendant

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was served or appeared in this action as the dismissal was under 28 U.S.C. § 1915A prior to service.

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Thus, there is no Defendant to tax costs against. Furthermore, although Plaintiff prevailed in part of

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the appeal, the action was reversed and remanded for further screening under 28 U.S.C. § 1915A, and

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the Court finds that Plaintiff is not entitled to costs of filing the notice of appeal in this instance.

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Accordingly, Plaintiff’s motion for bill of costs is denied.

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IT IS SO ORDERED.

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Dated:

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March 26, 2018
UNITED STATES MAGISTRATE JUDGE

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