Barker v. Osemwingie et al

Filing 79

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/21/20 OVERRULING 77 plaintiff's objections to defendants' bill of costs. Defendants' bill of costs is approved and cost are awarded in the full amount of $1091.10. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM BARKER,

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Plaintiff,

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No. 2:16-cv-3008 CKD P

v.

ORDER

OSEMWINGIE, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant

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to 42 U.S.C. § 1983. Currently before the court is defendants’ bill of costs (ECF No. 76), which

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plaintiff opposes (ECF No. 77).

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I.

Procedural History
On December 23, 2016, the court received plaintiff’s pro se, original complaint. (ECF

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No. 1.) The complaint cited both 42 U.S.C. § 1983 and the Americans with Disabilities Act

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(ADA) (id. at 3-5), and on screening was dismissed with leave to amend for failure to state a

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claim (ECF No. 4). Counsel for plaintiff appeared shortly thereafter (ECF No. 5) and filed a first

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amended complaint (ECF No. 7.). The first amended complaint asserted claims under Title II of

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the ADA, 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act (RA) of 1973; California’s

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Disabled Persons Act (DPA), Cal. Civ. Code §§ 54.1, 54.3; the Unruh Civil Rights Act (URCA),

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Cal. Civ. Code §§ 51, 52; and 42 U.S.C. § 1983. (ECF No. 7.) Before the court could screen the
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first amended complaint, plaintiff moved to file an amended complaint that added a claim under

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Title V of the ADA, 42 U.S.C. § 12203. (ECF No. 8.) The motion to amend was granted and

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defendants were ordered to respond to the second amended complaint. (ECF No. 11.)

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Defendants responded to the second amended complaint by filing a motion to dismiss.

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(ECF No. 32.) The motion was granted and all claims, except the Eighth Amendment claim that

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defendants Osemwingie and Ramiscal misused the Hoyer lift, were dismissed without leave to

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amend. (ECF Nos. 42, 46.) Plaintiff then filed a third amended complaint1 that contained only

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the Eighth Amendment claim that Osemwingie and Ramiscal misused the Hoyer lift. (ECF No.

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47.) Defendants answered the complaint (ECF No. 49) and then moved for summary judgment

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after the close of discovery (ECF No. 63). Summary judgment was granted (ECF No. 71), and

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defendants then submitted their bill of costs (ECF No. 76), which plaintiff opposes (ECF No. 77).

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II.

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Bill of Costs
Defendants have submitted a bill of costs which seeks reimbursement for their costs

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associated with taking plaintiff’s deposition. (ECF No. 76.) Plaintiff objects and argues that

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“[a]lthough the Local Rules permit the prevailing party to per se tax costs, defendants in civil

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rights lawsuits in general, Americans with Disabilities Act claim in particular, must first show

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that the lawsuit was frivolous,” and that plaintiff’s claims were not frivolous. (ECF No. 77 at 2

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(citations omitted).) Defendants argue that this case proceeded only under § 1983 and that they

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are not required to demonstrate the lawsuit was frivolous in order to recover costs for a

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deposition. (ECF No. 78.)

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III.

Discussion
A prevailing defendant under the ADA can recover attorney’s fees and costs “only if the

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plaintiff’s action was frivolous, unreasonable, or without foundation.” Brown v. Lucky Stores,

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Inc., 246 F.3d 1182, 1190 (9th Cir. 2001) (citation and internal quotation marks omitted).

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However, contrary to plaintiff’s assertion, the award of costs in this case is not governed by the

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ADA. While plaintiff did attempt to bring claims under the ADA, they were dismissed after

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The third amended complaint was erroneously captioned as the second amended complaint.
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defendants filed a motion to dismiss for failure to state a claim and prior to the taking of

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plaintiff’s deposition. The cost of taking plaintiff’s deposition is therefore not attributable to

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plaintiff’s ADA claims and a different standard applies. Id.

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In civil rights actions brought under § 1983, a prevailing defendant is also prevented from

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recovering attorney’s fees unless “the District Court finds ‘that the plaintiff’s action was

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frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’”

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Hughes v. Rowe, 449 U.S. 5, 14 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S.

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412, 421 (1978)). However, unlike with claims brought under the ADA, this same standard does

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not apply to the award of costs to a defendant prevailing on a § 1983 claim. Maner v. County of

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Stanislaus, No. 1:14-cv-1014 DAD MJS, 2016 WL 8730741, at *2-4, 2016 U.S. Dist. LEXIS

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149964, at *5-10 (E.D. Cal. Oct. 28, 2016) (explaining why Christiansburg standard does not

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apply to costs awarded in a civil rights action under 42 U.S.C. § 1988); see also Save Our Valley

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v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (requiring that a district court need only

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explain a refusal to deny costs under Federal Rule of Civil Procedure 54(d) in a § 1983 action).

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Under Federal Rule of Civil Procedure 54(d), “[u]nless a federal statute, these rules, or a

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court order provides otherwise, costs—other than attorney’s fees—should be allowed to the

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prevailing party.” “Rule 54(d) creates a presumption for awarding costs to prevailing parties; the

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losing party must show why costs should not be awarded.” Save Our Valley, 335 F.3d at 944-45

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(citations omitted). If the court declines to award costs to the prevailing party, it “must specify

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reasons for its refusal to award costs.” Ass’n of Mexican-Am. Educators v. California, 231 F.3d

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572, 591 (9th Cir. 2000) (citation omitted). However, there is no need for the court to “specify

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reasons for its decision to abide [by] the presumption and tax costs to the losing party.” Save Our

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Valley, 335 F.3d at 945 (emphasis in original). Reasons to refuse to award costs include “the

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losing party’s limited financial resources; misconduct on the part of the prevailing party; the

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importance of the issues; the importance and complexity of the issues; the merit of the plaintiff’s

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case, even if the plaintiff loses; and the chilling effect on future civil rights litigants of imposing

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high costs. Id. (internal citations omitted). A prevailing party’s ability to recover costs under

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Rule 54(d)(1) is limited by 28 U.S.C. § 1920 and, in this District, by Local Rule 292. 28 U.S.C.
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§ 1920 (specifying taxable costs); L.R. 292(f) (same).
Plaintiff’s only argument for why he should not be taxed costs in this case is based on

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inapplicable law, and he provides no evidence that any of the factors that would warrant denying

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the award of costs exist. He has therefore failed to overcome the presumption in favor of the

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award.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s objections to defendants’ bill of costs (ECF No. 77) are overruled.

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2. Defendants’ bill of costs is approved, and costs are awarded in the full amount of

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$1,091.10.
Dated: April 21, 2020

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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13:bark3008.costs

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