Garcia v. Moreno et al

Filing 75

ORDER Regarding Defendants' 69 Bill of Costs signed by Magistrate Judge Stanley A. Boone on 02/03/2021.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LENIN GARCIA,

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Plaintiff,

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v.
E. MORENO, et al.,

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Defendants.

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Case No.: 1:18-cv-00014-DAD-SAB (PC)
ORDER REGARDING DEFENDANTS’ BILL
OF COSTS
(ECF No. 69)

On November 1, 2018, the undersigned issued Findings and Recommendations recommending

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that Defendants’ motion for summary judgment for failure to exhaust the administrative remedies be

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denied, without prejudice. (ECF No. 39.)
On April 4, 2019, the District Judge adopted the Findings and Recommendations. (ECF No.

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46.)

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On April 23, 2019, the undersigned set an evidentiary hearing pursuant to Albino v. Baca, 747

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F.3d 1162 (9th Cir. 2014) in order to resolve the factual dispute as to whether Plaintiff exhausted the

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administrative remedies. (ECF No. 47.)
An evidentiary hearing was held on May 15, 2019. On January 29, 2020, the undersigned

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issued Findings and Recommendations recommending that this action be dismissed, without prejudice,

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for Plaintiff’s failure to exhaust the administrative remedies. (ECF No. 53.)

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On October 29, 2020, the District Judge adopted the Findings and Recommendations and

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dismissed the action, without prejudice, for Plaintiff’s failure to exhaust the administrative remedies.

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(ECF No. 67.)

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On November 12, 2020, Defendants submitted a bill of costs.1 (ECF No. 69.)

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On November 30, 2020, Plaintiff filed a “Motion to Retax Cost Pursuant to Federal Rule of

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Civil Procedure 54,” which the Court construes as an opposition to the bill of costs. (ECF No. 74.)

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I.

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LEGAL STANDARD
Federal Rule of Civil Procedure 54(d) authorizes courts to award costs to the “prevailing party”

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in federal actions. There is a presumption in favor of awarding costs to the prevailing party, and a

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district court following the presumption need not specify its reasons for doing so. Save Our Valley v.

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Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). However, the court may elect not to award costs

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where the party is indigent or where other compelling circumstances exist. Escriba v. Foster Poultry

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Farms, Inc., 743 F.3d 1236, 1247-48 (9th Cir. 2014). The losing party must demonstrate why costs

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should not be awarded. Nat’l Info. Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1471-72 (9th Cir. 1995),

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overruled on other grounds, Ass’n of Mexican-Am. Educators v. State of California, 231 F.3d 572,

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592-93 (9th Cir. 2000). “Appropriate reasons for denying costs include: (1) the substantial public

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importance of the case, (2) the closeness and difficulty of the issues in the case, (3) the chilling effect

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on future similar actions, (4) the plaintiff’s limited financial resources, and (5) the economic disparity

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between the parties.” Id. This list is not exhaustive, but rather a starting point for analysis. Escriba,

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743 F.3d at 1248.

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However, “a district court deviates from normal practice when it refuses to tax costs to the

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losing party, and that deviation triggers the requirement to specify reasons.” Save Our Valley, 335

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F.3d at 945 (internal quotation marks omitted). Thus, “it is incumbent upon the losing party to

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demonstrate why the costs should not be awarded.” Stanley v. Univ. of S. California, 178 F.3d 1069,

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Orders concerning the award of costs under Federal Rule of Civil Procedure 54 are non-dispositive motions which come
within the scope of Rule 72(a) and 28 U.S.C. § 636(b)(1)(A). Cf. United States ex rel. Doe v. Biotronik, Inc., No. 2:09-cv3617-KJM-EFB, 2015 WL 6447489, at *6 (E.D. Cal. Oct. 23, 2015) (recognizing that a motion for attorneys’ fees under
Rule 54was non-dispositive).

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1079 (9th Cir. 1999). Moreover, the Ninth Circuit has held “a district court need not give affirmative

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reasons for awarding costs; instead, it need only find that the reasons for denying costs are not

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sufficiently persuasive to overcome the presumption in favor of an award.” Save Our Valley, 335 F.3d

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at 945. However, the Ninth Circuit has explained that “[d]istrict courts should consider the financial

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resources of the plaintiff and the amount of costs in civil rights cases.” Stanley, 178 F.3d at 1079.

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The costs that may be taxed are those enumerated in 28 U.S.C. § 1920. See Alflex Corp. v.

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Underwriters Lab., Inc., 914 F.2d 175 (9th Cir. 1990) (per curiam) (citing Crawford Fitting Co. v. J.T.

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Gibbons, Inc., 482 U.S. 437, 441-42 (1987) ). Section 1920 lists “[f]ees for printed or electronically

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recorded transcripts necessarily obtained for use in the case” as a taxable cost. 28 U.S.C. § 1920(2).

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II.

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ANALYSIS

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Here, Defendants request only $1,071.85 the cost of the evidentiary hearing transcript. No

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other costs or expenses were requested. Plaintiff argues costs should not be imposed because he is

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currently indigent and he pursued this action in good faith. (ECF No. 74 at 3-4.) In consideration of

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the Ninth Circuit’s admonition, the Court has considered both the financial resources of Plaintiff and

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the requested amount of costs and finds that costs shall be imposed because Plaintiff has not shown

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that this is anything but an ordinary case.

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Although the Court found a dispute of fact as to whether Plaintiff exhausted the administrative

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remedies that could not be resolved by way of motion for summary judgment, Plaintiff did not prevail

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after the Court conducted an evidentiary hearing on the issue. Because Plaintiff filed objections to the

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Findings and Recommendations and summarized testimony at the hearing, Defendants requested a

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copy of the transcript of the evidentiary hearing to file a response thereto. (ECF Nos. 58, 59.)

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Defendants filed their response on April 29, 2020, which included citations to the evidentiary hearing

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transcript. (ECF No. 63.) Based on a review of the record, the case was neither difficult nor close,

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and Defendants did not act in bad faith in litigating the issue of exhaustion of the administrative

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remedies. As stated by the District Judge, “[o]ther than expressing his own theories about what he

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believes may have happened with his inmate appeals, plaintiff has offered no evidence or corroboration for

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his claim that he never received the responses to his inmate appeals or that his inmate appeals were never

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processed, despite the magistrate judge having held an Albino hearing and provided plaintiff ample

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opportunity to prepare for and present evidence at that evidentiary hearing.” (ECF No. 67, Order at 5:3-8)

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(citation omitted).
Further, Plaintiff has not demonstrated how the costs of the transcript in this instance would

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have a chilling effect on potential civil rights plaintiffs. See Williams v. Gore, No. 15-CV-0654-AJB,-

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PCL, 2017 WL 4960220, at *3 (S.D. Cal. Nov. 1, 2017) (concluding that $3,119.58 in costs “is not so

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excessive as to serve as an inappropriate threat to discourage serious civil rights claims”); Kidd v.

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Pacific Bell Telephone Co., No. 11cv1512 L(MDD), 2013 WL 2146924, at *2 (S.D. Cal. May 16,

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2013) (“The amount of costs [of $5,147.23] sought is reasonable and not exorbitant. Therefore, the

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suggestion that an award of costs would chill further civil rights litigation is not persuasive in this

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instance.”); compare with Ass’n of Mexican-Am. Educators, 231 F.3d at 592-93 (affirming the district

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court’s denial of $216,443.67 in costs to a prevailing defendant because the extraordinarily high” costs

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“might have the regrettable effect of discouraging potential [civil rights] plaintiffs”). Indeed, the

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Court finds any chilling effect to be minimal given the law clearly establishes that exhaustion of the

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administrative remedies must be done prior to filing suit. See 42 U.S.C. § 1997e(a); see also Ross v.

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Blake, __ U.S. __ 136 S.Ct. 1850 (2016). While Plaintiff may currently have limited funds in his trust

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account, he paid the $400.00 filing fee for this action, and as of November 9, 2020, he had $37.35 in

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his account. (ECF No. 74 at 6.) The Court will apportion the payment of costs to be withdrawn in

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monthly installments equaling “20 percent of the preceding month’s income credited to the prisoner’s

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account,” so long as the balance before the monthly deduction is greater than $10. See 28 U.S.C. §

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1915(b)(2), (f)(2)(B). This procedure “will ensure that Plaintiff is not completely stripped of the

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means to meet his basic needs.” Duvigneaud v. Garcia, No. 04CV580 BTMWMC, 2007 WL 2009800,

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at *2 (S.D. Cal. July 5, 2007). Considering all the foregoing, the Court finds that Plaintiff has not

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overcome the presumption of awarding costs of the evidentiary hearing transcript in this instance.

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III.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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Defendants’ bill of costs is granted;

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Defendants shall recover costs in the amount of $1,071.85, to be deducted from

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Plaintiff’s prisoner account in monthly installments equaling “20 percent of the

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preceding month’s income credited to the prisoner’s account,” anytime the balance

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before the month deduction is greater than $10, until the total of $1,071.85 has been

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collected; and
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The Clerk of Court shall serve a copy of this order on the Director of the California
Department of Corrections, via the Court’s electronic case filing system (CM/ECF).

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IT IS SO ORDERED.

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Dated:

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February 3, 2021
UNITED STATES MAGISTRATE JUDGE

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