Pimentel v. Beard et al
Filing
86
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/28/2019 RECOMMENDING defendants' 85 request for costs be granted in part; and costs be taxed against plaintiff in the amount of $410.75. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RICARDO PIMENTEL,
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No. 2:14-cv-1192 MCE DB P
Plaintiff,
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v.
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J. BEARD, et al.,
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FINDINGS AND RECOMMENDATIONS
Defendants.
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Plaintiff is a state prisoner who was proceeding pro se and in forma pauperis with this
civil rights action under 42 U.S.C. § 1983.
On February 6, 2019, this case was closed, and judgment was entered in favor of
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defendants. (ECF Nos. 82, 83.) On February 20, 2019, defendants filed a Bill of Costs seeking to
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recover $821.50, the cost of plaintiff’s deposition transcript. (ECF No. 85.) Plaintiff has filed no
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response.
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LEGAL STANDARDS
Rule 54(d) of the Federal Rules of Civil Procedure states: “Unless a federal statute, these
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rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to
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the prevailing party.” There is a presumption in favor of awarding costs to the prevailing party,
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and a district court following the presumption need not specify its reasons for doing so. Save Our
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Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). However, the court may elect not
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to award costs where the party is indigent or where other compelling circumstances exist. Escriba
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v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247-48 (9th Cir. 2014). The losing party must
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demonstrate why costs should not be awarded. Nat'l Info. Servs., Inc. v. TRW, Inc., 51 F.3d
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1470, 1471-72 (9th Cir. 1995), overruled on other grounds, Ass'n of Mexican-Am. Educators v.
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State of California, 231 F.3d 572, 592-3 (9th Cir. 2000). “Appropriate reasons for denying costs
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include: (1) the substantial public importance of the case, (2) the closeness and difficulty of the
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issues in the case, (3) the chilling effect on future similar actions, (4) the plaintiff's limited
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financial resources, and (5) the economic disparity between the parties.” Id. This list is not
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exhaustive, but rather a starting point for analysis. Escriba, 743 F.3d at 1248.
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The costs that may be taxed are those enumerated in 28 U.S.C. § 1920. See Alflex Corp.
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v. Underwriters Lab., Inc., 914 F.2d 175 (9th Cir. 1990) (per curiam) (citing Crawford Fitting Co.
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v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987)). Section 1920(2) lists “[f]ees for printed or
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electronically recorded transcripts necessarily obtained for use in the case” as a taxable cost.
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ANALYSIS
This case involved plaintiff’s claims that defendants violated his First and Fifth
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Amendment rights by retaliating against him and interfering with his right of access to the courts.
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The court found plaintiff failed to provide facts to support necessary elements of his claims and
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granted defendants’ motion for summary judgment. (ECF Nos. 82, 83.) Defendants were thus
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the prevailing parties, and the prevailing parties generally are allowed to recover reasonable costs.
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The court must balance the fact that plaintiff proceeded in this case as an indigent against
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granting what is regularly awarded the prevailing party. It should be noted that defendants are not
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seeking to recover excessive, questionable, or marginal costs. They seek nothing more than to be
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repaid the amount actually paid to a third party for something almost always essential to defense
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of a case - a transcript of plaintiff’s deposition testimony.
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The court will consider specifically the factors identified in the above-cited cases. First,
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this case is not one of public import; nor did it present close and difficult issues. Second, taxing
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costs against plaintiff would no more chill his access to the courts than any other plaintiff. All
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litigants must weigh the relative risks of filing a civil suit (including the financial risks) against
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the potential benefits. See, e.g., Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999)
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(“[r]equiring prisoners to pay filing fees for suits will force them to go through the same thought
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process non-inmates go through before filing a suit, i.e., is filing this suit worth the costs?”)
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Third, the fact that plaintiff is an indigent inmate does not, alone, warrant special treatment. To
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deny defendants costs solely on these grounds might well give plaintiff and others incentive to
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file, risk free, multiple meritless lawsuits. Padula v. Morris, No. 2:05-CV-00411-MCE, 2014 WL
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280971, at *2 (E.D. Cal. Jan. 24, 2014).
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Finally, the economic disparity between the parties - a prisoner and a state entity - is about
as great as one might envision. The state would hardly notice a $821.50 expenditure. Plaintiff,
on the other hand, might never get out from under a debt of that magnitude.
Considering all the foregoing, the court finds the interests of justice would not be served
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by taxing the full amount of the costs against plaintiff. Still, defendant, as the prevailing party, is
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entitled to some amount of reimbursement, and there is value and principle in holding
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unsuccessful inmate litigants at least partially accountable for the costs of their suits. “The
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district court may apportion costs between the winning and losing parties.” Oyarzo v. Tuolumne
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Fire Dist., No. 1:11-CV-01271-SAB, 2014 WL 1757217, at *2 (E.D. Cal. Apr. 30, 2014) (citing
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In re Paoli R.R. Yard PCB Lit., 221 F.3d 449, 469 (3rd Cir. 2000)). Therefore, defendant's
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request for costs should be granted in part. Half of the cost of the deposition, or $410.75 should
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be taxed against plaintiff.
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
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1. Defendants’ request for costs (ECF No. 85) be GRANTED IN PART; and
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2. Costs be taxed against plaintiff in the amount of $410.75.
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These findings and recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. The document should be captioned
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“Objections to Magistrate Judge's Findings and Recommendations.” Any response to the
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objections shall be filed and served within seven days after service of the objections.
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The parties are advised that failure to file objections within the specified time may result
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in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th
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Cir. 1991).
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Dated: March 28, 2019
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DLB:9
DLB1/prisoner-civil rights/pime1192.bill of costs
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