Draper v. Rosairo et al

Filing 257

ORDER signed by Judge Kimberly J. Mueller on 7/23/2014 GRANTING defendant D. Rosario's 239 Application to Tax Costs and for Itemization of Costs. Plaintiff is taxed $3,018.35 in costs. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN CLINT DRAPER,

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No. 2:10-cv-0032 KJM EFB

Plaintiff,
v.

ORDER

D. ROSARIO,
Defendant.

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Defendant Rosario’s application for a bill of costs is pending before the court.

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Plaintiff has opposed the motion and defendant has filed a reply. The court ordered the matter

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submitted without argument and now GRANTS the application.

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I. BACKGROUND

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On January 5, 2010, plaintiff filed a civil rights complaint alleging, among other

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things, that defendant Rosario had used excessive force during an encounter on September 9,

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2009. ECF No. 1. He also filed a request to proceed in forma pauperis, supporting the request

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with a declaration showing he had no money in his inmate trust account. ECF No. 2.

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The case went to trial and on June 20, 2014, the jury returned a verdict for
defendant; judgment was entered on June 24, 2014. ECF Nos. 235, 238.

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On June 25, 2014, defendant filed an application to tax costs, seeking $2,598.35

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for transcripts, $400 in witness fees, and $20 in docket fees, for a total of $3,018.35. ECF No.
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239. Plaintiff has objected, arguing he is indigent and the award of costs will have a chilling

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effect on other civil rights litigation. ECF No. 241. In reply defendant says that costs are

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appropriate despite plaintiff’s indigence. ECF No. 243.

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II. ANALYSIS

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Under Rule 54(d) of the Federal Rules of Civil Procedure, a court may award those

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costs listed in 28 U.S.C. ' 1920 to a prevailing party: “Unless . . . a court order provides

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otherwise, costs–other than attorney’s fees–should be allowed to the prevailing party.” FED. R.

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CIV. P. 54(d); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). Indeed, “[a]

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district court deviates from normal practice when it refuses to tax costs to the losing party, and

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that deviation triggers the requirement to ‘specify reasons.’” Save Our Valley v. Sound Transit,

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335 F.3d 932, 945 (9th Cir. 2003) (citing Assoc. of Mexican-American Educators v. California,

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231 F.3d 572, 591 (9th Cir. 2000)).

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The Ninth Circuit has said that proper reasons for denying costs include (1) the

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losing party’s limited financial resources; (2) the prevailing party’s misconduct; (3) the potential

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chilling effect of imposing high costs on civil rights litigants; (4) the nature of the prevailing

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party’s recovery; (5) the losing party’s good faith in litigating; and (6) the importance of the case.

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Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003) (citing

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Mexican-American Educators, 231 F.3d at 592 & n.15).

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Plaintiff does not challenge the costs themselves, which are authorized under the

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statute. See Indep. Iron Works, Inc. v. U.S. Steel Corp., 322 F.2d 656, 678 (9th Cir. 1963) (stating

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that the cost of deposition transcripts “necessarily obtained for use in the case” can be taxed under

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§ 1920(4)) (quotation marks omitted); Clausen v. M/V New Carissa, 339 F.3d 1049, 1064 (9th

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Cir. 2003) (stating that witness fees of $40 per day under 28 U.S.C. § 1821(b) may be taxed under

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§ 1920); King v. Kalama Sch. Dist. No. 402, No. C05-5675RBL, 2008 WL 110518, at *1 (W.D.

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Wash. Jan. 7, 2008) (stating the attorney’s docket fee under 28 U.S.C. § 1923(a) is a taxable

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cost). Moreover, the court notes that defendant does not seek any costs related to litigation of the

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question whether he would be allowed to introduce at trial a videotape not disclosed during

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discovery.
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As noted, plaintiff does argue that the court should not tax costs because of

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plaintiff’s indigence and the chilling effect the award will have on civil rights cases. “‘[A]

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substantiated claim of the losing party’s indigency may justify a reduction or denial of costs to the

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prevailing party, although such indigency is not an absolute shield to the imposition of costs.’”

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Conn v. City of Reno, No. 3:05-CV-00595-HDM-WGC, 2012 WL 4194560, at *3 (D. Nev. Sep.

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19, 2012) (quoting Moore’s Fed. Prac. § 54.10[1][b]). Plaintiff has not submitted any updated

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financial information even though the “pertinent time” for determining whether his indigency has

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an impact on the imposition of costs “is the time the costs [are] initially taxed.” Stanley v. Univ.

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of So. Ca., 178 F.3d 1069, 1080 (9th Cir. 1999). Given the level of prison wages, plaintiff’s

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economic status is unlikely to have improved much even if he has secured new prison

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employment. See Reed v. Moore, 2:05-CV-00060 JAM KJN, 2011 WL 703618, at *2 (E.D. Cal.

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Feb. 18, 2011) (denying $4,293.89 in costs when “it is highly unlikely” the inmate would be able

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to satisfy any costs). Nevertheless, plaintiff has not shown the imposition of defendant’s

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relatively modest costs will harm him despite his indigence. Jones v. Neven, No. 2:07–CV–1088

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JCM (GWF), 2011 WL 703618, at 2 (D. Nev. Jan. 14, 2013) (imposition of costs on inmate will

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not render him indigent in light of fact that costs will be paid in installments under 28 U.S.C. §

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1915(f)(2)(B)); Janoe v. Stone, No. 06-CV-1155 JM, 2012 WL 70424, at *2 (S.D. Cal. Jan. 9,

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2012) (imposing costs because of the “piecemeal payment plan” even though plaintiff was unable

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to secure a prison job and worried about paying for hygiene items); see also Antoine v. Cnty. of

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Sacramento, No. Civ. S-06-01349 WBS GGH, 2009 WL 1260318, at *2 (E.D. Cal. May 6, 2009)

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(whether threat of indigency from imposition of costs is genuine “depends on the amount of the

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potential cost award”); compare Stanley, 178 F.3d at 1080 (denying “extraordinarily high” bill of

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costs).

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Plaintiff also argues any award of costs will “deter future litigants from protecting

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their civil rights by filing lawsuits in federal court.” ECF No. 241 at 3. Defendant counters

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generally, that “[p]risoner civil-rights litigation in California is thriving.” ECF No. 243 at 4. In

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Stanley, the Ninth Circuit remanded the case to the district court to consider its order taxing costs,

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noting “the imposition of [] high costs on losing civil rights plaintiffs of modest means may chill
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civil rights litigation” and finding the claims raised in that case were important and “far from

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obvious.” 178 F.3d at 1080; see also Assoc. of Mexican-American Educators, 231 F.3d at 593

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(upholding denial of costs in “extraordinary, and extraordinarily important, case” and saying that

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granting high costs in important cases might discourage other civil rights litigation). Without

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downplaying the importance of the case to plaintiff personally, or the potential viability of

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excessive force claims against prison guards, the issues in this case were not novel or complex,

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nor is there any reason to believe that the modest award of costs here will chill future inmate

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litigation.

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IT IS THEREFORE ORDERED that:

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1. Defendant’s application for costs is granted; and

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2. Plaintiff is taxed $3,018.35 in costs.

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DATED: July 23, 2014.

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UNITED STATES DISTRICT JUDGE

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