Jimenez v. Sambrano, et al

Filing 417

ORDER Granting 413 Plaintiff's Motion to Retax Costs: No costs shall be awarded in this case. Signed by Judge M. James Lorenz on 4/29/2010. (mjj)

1 2 3 4 5 6 7 8 9 10 11 ALBERTO VERA JIMENEZ, 12 13 v. 14 R. SAMBRANO, et al., 15 16 17 Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 04cv1833-L(PCL) ORDER GRANTING PLAINTIFF'S MOTION TO RETAX COSTS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

In this is a prisoner civil rights action regarding a claim for excessive force used during a

18 cell search in violation of the Eighth Amendment, Defendants prevailed after a jury trial. On 19 February 23, 2010, pursuant to Federal Rule of Civil Procedure 54(d), the Clerk issued an Order 20 Taxing Costs in the amount of $9,771.95. Pursuant to Rule 54(d)(1) and Civil Local Rule 21 54.1(h), Plaintiff moved to retax costs based on his indigence and the chilling effect of a cost 22 award on other civil rights litigants. For the reasons which follow, Plaintiff's motion is 23 GRANTED. 24 Under Rule 54(d)(1), "Unless a federal statute, these rules, or a court order provides

25 otherwise, costs ­ other than attorney's fees ­ should be allowed to the prevailing party." "[T]he 26 rule creates a presumption in favor of awarding costs to a prevailing party, but vests in the 27 district court discretion to refuse to award costs." The Association of Mexican-American 28 Educators v. State of California, 231 F.3d 572, 579, 591 (9th Cir. 2000) (en banc). In a civil
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1 rights case, it is an abuse of discretion to deny a losing "plaintiff's motion to re-tax costs without 2 considering (1) the plaintiff's limited financial resources; and (2) `the chilling effect of imposing 3 such high costs on future civil rights litigants.'" Id. at 592, quoting Stanley v. Univ. of S. Cal., 4 178 F.3d 1069, 1079-80 (9th Cir. 1999). 5 Plaintiff is a California state prisoner who filed the case pro se and in forma pauperis.1

6 On the other hand, Defendant is represented by the California Attorney General. Plaintiff's lack 7 of resources and the disparity in resources between the parties are therefore apparent. Although 8 Plaintiff ultimately did not prevail, his action had some merit. It survived a motion to dismiss 9 and a motion for summary judgment. Initially the jury was hung as to one Defendant and only 10 after a second jury trial were both Defendants found not liable. Last, this is a civil rights action 11 alleging Defendants used excessive force against Plaintiff and caused him substantial physical 12 injury. Awarding a large sum of costs against Plaintiff may have a chilling effect on future civil 13 rights litigants. All of the foregoing reasons counsel against awarding costs in this action. See 14 Mexican-American Educators, 231 F.3d at 593; Stanley, 178 F.3d at 1079-80. 15 For the foregoing reasons, Plaintiff's motion to retax costs is GRANTED. No costs shall

16 be awarded in this case. 17 18 19 DATED: April 29, 2010 20 21 22 23 24 25 26 27 28 After representing himself for four years and on the eve of trial, Plaintiff was able to secure pro bono counsel.
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IT IS SO ORDERED.

M. James Lorenz United States District Court Judge