Fernandez v. California Department of Correction & Rehabilitation et al

Filing 84

ORDER signed by Magistrate Judge Kendall J. Newman on 04/02/15 ordering defendants' application for costs 81 is granted. Plaintiff is taxed $1,937.47 in costs. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRANDON ALEXANDER
FERNANDEZ,
Plaintiff,

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No. 2:11-cv-1125 MCE KJN P

ORDER
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding in forma pauperis and through counsel, with a civil

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rights action pursuant to 42 U.S.C. § 1983. On March 11, 2015, the last remaining defendant was

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granted summary judgment. On March 11, 2015, defendants submitted a bill of costs for

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$1,934.47 associated with deposition expenses. (ECF No. 81.) Plaintiff filed objections, and

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defendants filed a reply. As set forth below, the court overrules plaintiff’s objections and grants

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the bill of costs.

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Plaintiff initially brought this action pro se, alleging deprivation of his rights under the

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Eighth Amendment. Plaintiff’s claim was based upon the alleged failure to treat, and delay in

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treating, plaintiff’s broken finger, which caused pain, and ultimately resulted in a disfigured

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finger. One of plaintiff’s treating doctors, Dr. Starcevich, stated that if he had seen plaintiff the

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day of the injury or the day after, the doctor would have treated it as an emergency. (ECF No. 82
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at 5.) Instead, plaintiff’s finger, though broken on June 7, 2009, was allegedly not treated for

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about one month, despite his repeated requests for an exam. Plaintiff alleged that because the

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broken finger had already begun healing incorrectly due to the delay in treatment, corrective

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surgery could not be performed. Counsel was appointed to interview plaintiff, and filed a second

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amended complaint. Subsequently, defendants Barnes and Cate were dismissed with prejudice,

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and Doe defendants were dismissed without prejudice. (ECF No. 45.) Following review of this

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court’s findings and recommendations, sole remaining defendant Pomazal’s motion for summary

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judgment was granted.

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Defendants seek an award of $1,934.47 for costs associated with depositions. Plaintiff

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filed objections, arguing he is indigent, that there is a wide disparity in income between plaintiff

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and defendant Pomazal, that the award of costs will have a chilling effect on other civil rights

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litigation, and that plaintiff’s case had merit despite its dismissal. Defendants contend that costs

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are appropriate despite plaintiff’s indigence.

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Federal Rule of Civil Procedure 54(d) governs the taxation of costs to the prevailing party

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in a civil matter.1 Pursuant to Federal Rule of Civil Procedure 54(d)(1), unless a court order

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provides otherwise, costs (other than attorney’s fees) “should be allowed to the prevailing party.”

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This rule creates a presumption that costs will be taxed against the losing party. Ass’n of

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Mexican-American Educators v. California, 231 F.3d 572, 591-93 (9th Cir. 2000) (en banc).

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However, if the losing party has demonstrated why costs should not be awarded, the rule “vests in

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the district court discretion to refuse to award costs.” Id., at 591; Save Our Valley v. Sound

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Transit, 335 F.3d 932, 945 (9th Cir. 2003) (“the losing party must show why costs should not be

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awarded”). If the court declines to award costs, it must state its reasons, giving the reviewing

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court an opportunity to determine if that discretion was abused. Save Our Valley, 335 F.3d at

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945.

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Proper reasons for denying costs include: (1) the losing party’s limited financial
resources; (2) the prevailing party’s misconduct; (3) the potential chilling effect of imposing high
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In the Eastern District of California, this rule is implemented by Local Rule 292. E.D. Cal. R.
292 (2013).
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costs on civil rights litigants; (4) the nature of the prevailing party’s recovery; (5) the losing

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party’s good faith in litigating; and (6) the importance of the case. Champion Produce, Inc. v.

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Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003) (citing Mexican-American

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Educators, 231 F.3d at 592 & n.15). In considering whether costs should be denied, this court

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considers: the losing party’s limited financial resources; whether there is a great economic

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disparity between the parties; the chilling effect of imposing such high costs on future civil rights

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litigants; whether the issues in the case are close and difficult; and whether plaintiff’s case,

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although unsuccessful, had some merit. Ass’n of Mexican-American Educators, 231 F.3d at 592-

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93.

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First, plaintiff’s objection to the costs themselves is overruled because the deposition

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expenses are authorized under the statute and were necessarily obtained. Indep. Iron Works, Inc.

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v. U.S. Steel Corp., 322 F.2d 656, 678 (9th Cir. 1963) (stating that the cost of deposition

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transcripts “necessarily obtained for use in the case” can be taxed under § 1920(2)).

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Second, as noted above, 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, 2012 WL 4194560, at *3 (D. Nev. Sep. 19, 2012) (quoting Moore’s Fed.

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Prac. § 54.10[1][b] ). Plaintiff has not submitted updated financial information even though the

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“pertinent time” for determining whether his indigency has an impact on the imposition of costs

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“is the time the costs [are] initially taxed.” Stanley v. Univ. of So. Ca., 178 F.3d 1069, 1080 (9th

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Cir. 1999). But plaintiff asserts his financial situation has not changed, and given the level of

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prison wages, plaintiff’s economic status is unlikely to have improved much even if he has

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secured new prison employment. See Reed v. Moore, 2011 WL 703618, at *2 (E.D. Cal. Feb.18,

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

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

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costs will harm him despite his indigence. Draper v. Rosario, 2014 WL 3689718 (E.D. Cal. July

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24, 2014) (inmate failed to show imposition of relatively modest costs of $3,018.35 would harm
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him despite his indigence); Jones v. Neven, 2013 WL 150338, at 2 (D. Nev. Jan. 14, 2013)

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(imposition of $550.05 in costs on inmate will not render him indigent in light of fact that costs

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will be paid in installments under 28 U.S.C. § 1915(f)(2)(B)); Janoe v. Stone, 2012 WL 70424, at

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*2 (S.D. Cal. Jan. 9, 2012) (imposing $1,637.76 in costs because of the “piecemeal payment

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plan” even though plaintiff was unable to secure a prison job and worried about paying for

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hygiene items); see also Antoine v. Cnty. of Sacramento, 2009 WL 1260318, at *2 (E.D. Cal.

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May 6, 2009) (whether threat of indigency from imposition of costs is genuine “depends on the

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amount of the potential cost award”); compare Stanley, 178 F.3d at 1080 (denying

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“extraordinarily high” bill of costs -- $46,710.97).
Plaintiff also argues that “[c]ivil rights suits provide an important recourse for prisoners

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that, if chilled, would effectively immunize prison officials from the consequences of an abuse of

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authority.” (ECF No. 82 at 5.) Defendants counter that if no cost recovery is allowed, “prisoners,

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especially those who are granted in forma pauperis status, . . . would have no economic

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disincentive to refrain from filing frivolous lawsuits, adding to an already over-burdened court

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system.” (ECF No. 83 at 4.) In Stanley, the Ninth Circuit remanded the case to the district court

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to consider its order taxing costs, noting “the imposition of [ ] high costs on losing civil rights

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plaintiffs of modest means may chill civil rights litigation” and finding the claims raised in that

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case were important and “far from obvious.” 178 F.3d at 1080; see also Assoc. of Mexican-

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American Educators, 231 F.3d at 593 (upholding denial of costs in “extraordinary, and

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extraordinarily important, case” and saying that granting high costs in important cases might

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discourage other civil rights litigation). The undersigned does not downplay the importance of

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this case to plaintiff personally, or the potential viability of deliberate indifference medical claims

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against prison employees. However, the issues in this case were not novel or complex, and there

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is no reason to believe that the modest award of costs here will chill future inmate litigation.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ application for costs (ECF No. 81) is granted; and

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2. Plaintiff is taxed $1,934.47 in costs.

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Dated: April 2, 2015

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