El-Shaddai v. Wheeler et al

Filing 164

ORDER signed by District Judge Kimberly J. Mueller on 2/8/17. The Court DENIES Wilkerson's MOTION for Costs 163 . (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ADONAI EL-SHADDAI,
aka JAMES WILKERSON,
Plaintiff,

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ORDER
v.

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No. 2:06-cv-1898-KJM-EFB

B. WHEELER, et al.,

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Defendants.

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This is a prisoner civil rights action brought under 42 U.S.C. § 1983 based on

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allegations of excessive force. Two years after the action’s remand from the appellate court and

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one year after the parties settled all remaining disputes between them, plaintiff James Wilkerson

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moves this court to recover “his $455.00 fee for filing the notice of appeal, and $350 filing fee for

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this complaint for a total of $805.00.” See Mot., ECF No. 161; Wilkerson Aff., ECF No. 163.

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Defendants oppose the motion. Opp’n, ECF No. 162. For the reasons discussed below, the court

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DENIES Wilkerson’s motion for costs.

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I.

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BACKGROUND
In 2006, the correctional officers named as defendants in this action removed the

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case from Lassen County Superior Court to the Eastern District of California, and paid the

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requisite filing fee. ECF No. 1. The court granted summary judgment for defendant Turner.

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Order March 31, 2008, ECF No. 20. The matter continued to trial against defendants Albonico

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and Wheeler, both of whom the jury found not guilty. Verdict, ECF No. 129. Wilkerson

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appealed the verdict and certain interlocutory orders. Not. of Appeal, ECF No. 136. The Ninth

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Circuit reversed the judgments as to all three defendants and remanded for a new trial based on

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prejudicial jury instructions. Wilkerson v. Wheeler, 772 F.3d 834 (9th Cir. 2014).

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Wilkerson returned to the district court for a new trial with the representation of

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counsel. Not. of Appearance, ECF No. 152. Neither Wilkerson nor his counsel filed a request

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with the district court for reimbursement of the appellate filing fee at that time. Nearly a year

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after the Ninth Circuit mandate issued, the parties resolved “all disputes” between them through a

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settlement agreement and documented the parties’ mutual agreement to “bear [their] own

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litigation costs.” Ganson Decl. ¶ 3, Ex. A, ECF No. 162. Wilkerson subsequently filed a

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stipulation for voluntary dismissal that reiterated his agreement to bear his own litigation costs.

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Stip. Vol. Dismissal, ECF No. 159 (“Each party shall bear its own litigation costs and attorney’s

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fees.”). The case was closed on November 6, 2015. ECF No. 160.

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On December 19, 2016 Wilkerson filed the instant motion to recover “his $455.00

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fee for filing the notice of appeal, and $350 filing fee for this complaint for a total of $805.00.”

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Mot. On December 28, 2016, defendants opposed. Opp’n. On January 13, 2017, Wilkerson filed

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an affidavit in support of his motion, contending his “failure to recover his appellate-court filing

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fee was the result of ineffective assistance of district court counsel.” Aff. at 2.

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II.

DISCUSSION
Federal Rule of Civil Procedure 54(d) authorizes courts to award costs to the

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“prevailing party” in federal actions. Additionally, Federal Rule of Appellate Procedure 39(e)(4)

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permits a party prevailing on appeal to seek reimbursement for the appellate filing fee by filing a

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motion with the district court. The timing of such cost awards is governed by Local Rule 292,
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which requires that any bill of costs be filed within fourteen days after the judgment or order

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under which the costs may be claimed. L.R. 292(b).

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Here, Wilkerson’s request for an award of costs is untimely, if not barred by his

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settlement agreement. Wilkerson had fourteen days from the remand of his appeal to seek

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reimbursement of his appellate filing fee. L.R. 292. That period expired in December 2014. See

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Wilkerson, 772 F.3d at 834 (opinion filed on November 18, 2014); see also ECF No. 151 (USCA

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mandate docketed on December 15, 2014). Wilkerson similarly had fourteen days from the

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resolution of his district court action to seek reimbursement of any district court filing fee. L.R.

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292. That period expired in November 2015. See Stip. Vol. Dismissal (filed on November 5,

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2015). Both deadlines passed long before Wilkerson filed the instant motion on December 19,

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2016.

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Accordingly, the court finds Wilkerson is not entitled to the costs he seeks, and
DENIES his motion for costs as untimely.

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IT IS SO ORDERED.

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This resolves ECF Nos. 161 and 163.

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DATED: February 8, 2017

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UNITED STATES DISTRICT JUDGE
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