Eric Eugene Smith v. Timothy Friederichs et al

Filing 74

ORDER by Judge Yvonne Gonzalez Rogers denying 71 Ex Parte Application seeking Waiver of Bill of Costs. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 8/23/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERIC EUGENE SMITH,
Plaintiff,

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CASE NO. 16-cv-06203-YGR
ORDER DENYING EX PARTE MOTION
SEEKING WAIVER OF BILL OF COSTS

vs.
TIMOTHY FRIEDERICHS, ET AL.,

Re: Dkt. No. 71

Defendants.

United States District Court
Northern District of California

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The Court has reviewed plaintiff Eric Eugene Smith’s ex parte motion seeking waiver of
the Bill of Costs served on him by the Clerk of Court. (Dkt. No. 71 (“Motion”).)
The in forma pauperis statute provides: “Judgment may be rendered for costs at the

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conclusion of the suit or action as in other proceedings . . . . If the judgment against a prisoner

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includes the payment of costs . . . , the prisoner shall be required to pay the full amount of the

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costs ordered.” 28 U.S.C. § 1915(f)(1)–(2)(A). Under Federal Rule of Civil Procedure 54(d),

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there is a presumption in favor of awarding costs to prevailing parties, and the losing party must

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show why costs should not be awarded even in civil rights cases. See Save Our Valley v. Sound

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Transit, 335 F.3d 932, 944–45 (9th Cir. 2003).

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The sole basis for plaintiff’s motion is that he is “wholly indigent and cannot pay any fees

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or costs.” (Motion at 2.) Unfortunately, courts have held that once costs are awarded, “a prisoner

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cannot avoid responsibility based on indigence.” Janoe v. Stone, No. 06-CV-1511-JM, 2012 WL

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70424, at *2 (S.D. Cal. Jan. 9, 2012). Therefore, indigence, standing alone, does not justify

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waiver of the Bill of Costs. Moreover, the Court notes for plaintiff’s benefit that his concern that

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he will be unable to pay the costs in this case is alleviated by the existence of 28 U.S.C. §

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1915(b)(2), which provides that prisoners are able to pay costs incrementally, making “monthly

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payments of 20 percent of the preceding month’s income credited to the prisoner’s account.” See

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also Player v. Salas, No. 04CV1761-LAB (WMc), 2007 WL 4250015, at *2 (S.D. Cal. Nov. 30,

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2007) (stating that in light of § 1915(b)(2)’s provision allowing installment payments, plaintiff

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would not be “completely without means to provide for his basic needs” if costs were not re-

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taxed).

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Thus, while the Court is cognizant of plaintiff’s financial plight, his motion based on his
indigence is DENIED.

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This Order terminates Docket Number 71.

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IT IS SO ORDERED.

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Dated: August 23, 2018
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

United States District Court
Northern District of California

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