Moody v. Unknown

Filing 161

ORDER Directing Entry of Final Judgment as to Defendants Finander, Ball, and Butcher; ORDER Certifying Appeal is Not Taken in Good Faith; ORDER Denying Motion to Strike Bill of Costs 160 ; ORDER Requiring Plaintiff to Provide Form for Service of Pro cess; Moody is ordered, within 15 calendar days of the date this order is issued, to return the form sent to him, completed, so that the Marshall can re-attempt service on Defendant Reddy; the U.S. Marshal is ordered to re-attempt service on Defendant Reddy no later than 45 calendar days from the date this order is issued; Signed by Judge Larry Alan Burns on 10/28/11 (IFP package mailed to plaintiff) (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FLOYD MOODY,
CDCR #G-26035,

CASE NO. 09CV0892-LAB (BGS)
ORDER DIRECTING ENTRY OF
FINAL JUDGMENT AS TO
DEFENDANTS FINANDER, BALL,
AND BUTCHER;

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Plaintiff,
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vs.

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ORDER CERTIFYING APPEAL IS
NOT TAKEN IN GOOD FAITH;

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ORDER DENYING MOTION TO
STRIKE BILL OF COSTS; AND

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PAULETTE FINANDER, et al.
ORDER REQUIRING PLAINTIFF
TO PROVIDE FORM FOR
SERVICE OF PROCESS

Defendants.

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On September 23, 2011, the Court issued an order adopting Magistrate Judge

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Bernard Skomal’s report and recommendation, granting partial summary judgment, and

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dismissing with prejudice all claims against Defendants Finander, Ball, and Butcher. Dr.

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Reddy had not yet been properly served, and the Court granted an extension of time in which

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to accomplish service.

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I.

Final Judgment as to Defendants Finander, Ball, and Butcher

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Following the Court’s order, the Clerk entered judgment as to Defendants Finander,

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Ball, and Butcher, and costs were taxed. Moody then filed a notice of appeal. Although the

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Court had not directed that judgment be entered as to these Defendants, see Fed. R. Civ.
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P. 54(b), it finds no just reason for delay, and does so now. The Court, nunc pro tunc, directs

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entry of final judgment as to claims against Defendants Finander, Ball, and Butcher.

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II.

Whether Appeal is Taken in Good Faith

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Having entered final judgment as to these Defendants, the Court now turns to the

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question of whether an appeal would be taken in good faith. See 28 U.S.C. § 1915(a)(3).

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Because Moody has already filed his notice of appeal, the Court considers his stated bases

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for appeal there, but also considers whether he could bring any appeal in good faith.

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This action was brought under 42 U.S.C. § 1983. Moody has serious medical

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problems, but the uncontested evidence and even his own admissions show Drs. Finander,

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Ball, and Butcher were not deliberately indifferent to them. At most, one or more of them

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might have been negligent. See Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th

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Cir. 1980) (explaining that negligence in diagnosing or treating a medical condition does not

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give rise to an Eighth Amendment claim). Furthermore, it did not result in any harm to him.

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See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (holding that a plaintiff bringing a

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§ 1983 deliberate indifference claim must show, among other things, that the defendant’s

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deliberate indifference caused harm). Moody’s chief complaint was that he was not timely

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screened for liver cancer. But when he was screened, liver cancer was ruled out. He now

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agrees he does not have liver cancer, and never did. He made no showing of any harm that

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resulted from a delay in conducting that screening.

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Moody also suffers from numerous other diseases and medical problems, but the

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uncontroverted evidence shows Drs. Finander, Ball, and Butcher have been making

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extensive efforts to diagnose and treat these, to the extent possible. The fact that Moody

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disagrees, however violently, with their course of treatment does not amount to a denial of

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his constitutional rights. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)

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(difference of opinion between prisoner and his doctors does not constitute deliberate

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indifference). The uncontroverted evidence also show some of Moody’s medical problems,

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notably hepatis C, cannot safely be treated until his overall health improves, and these

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doctors’ failure to do the impossible does not give rise to any meritorious cause of action.
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The mere fact that Moody is in pain as a result of generally poor health and untreatable

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conditions is unfortunate, but it does not create liability.

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Moody’s notice of appeal raises other arguments that are belied by the record. His

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mere arguments and allegations are insufficient to render summary judgment inappropriate,

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however. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (in the summary judgment

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context, holding that a plaintiff “can no longer rest on such mere allegations, but must set

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forth by affidavit or other evidence specific facts” to resist the motion).

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The Court therefore certifies that Moody’s appeal is not taken in good faith, and that

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no appeal from the grant of summary judgment in favor of Defendants Finander, Butcher,

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and Ball would be taken in good faith.

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III.

Motion to Strike Bill of Costs

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On October 6, a notice regarding the bill of costs filed by Defendant Finander (who

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was represented by private counsel) was filed in the docket and sent to Moody. The notice

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gave Moody until October 21, 2011 to file any opposition or responsive pleading. No

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opposition was received, and on October 25 costs in the amount of $1,174.75 were taxed

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against Moody. Then the Court received by discrepancy order Moody’s motion to strike the

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bill of costs, which was apparently sent on October 18. Because the motion to strike was

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submitted before costs were taxed, the Court now considers that motion as an opposition to

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the bill of costs.

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Under Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920, costs are awardable to a prevailing

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party unless a federal statute, the Federal Rules of Civil Procedure, or a court order provide

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otherwise, and costs are taxable by the Clerk of Court. Moody does not identify any

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nontaxable costs or error in taxing costs, but argues he should not have to pay costs

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because he proceeded pro se and in forma pauperis, he is a prisoner, and he brought his

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claims in good faith, and they were not frivolous nor malicious.

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None of these are adequate reasons for forcing Finander to bear the costs of

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defending herself, however. Rule 54 “creates a presumption in favor of awarding costs to

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a prevailing party, but vests in the district court discretion to refuse to award costs.” Ass'n of
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Mexican-American Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000) (en banc). A

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court may consider the losing party’s financial resources. Id. at 592 (quoting Stanley v. Univ.

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of S. Cal., 178 F.3d 1069, 1079–80 (9th Cir.1999)). But “it is incumbent upon the losing party

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to demonstrate why the costs should not be awarded.” Stanley, 178 F.3d at 1079 (citation

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omitted).

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Merely asserting indigence does not show why costs should not be awarded. While

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the costs are high considering Moody’s limited resources, he has made is no showing he

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cannot reasonably pay them off over time, as provided by statute. See 28 U.S.C.

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§ 1915(f)(1)–(2) (providing for payment of costs by prisoners proceeding in forma pauperis).

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It is worth noting that this statute contemplates that even indigent prisoners can be required

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to pay costs, so the fact that Moody is both does not exempt him from responsibility.

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Moody’s pro se status and claims of subjective good faith carry no weight. While the

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Court did not expressly find his claims to be brought frivolously or maliciously, this is not a

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close case, and he had no reasonable basis for bringing these claims. Before reviewing the

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available records and conducting his own preliminary research (which Fed. R. Civ. P. 11(b)

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obliged him to do before filing suit), Moody might have believed he had a case. But

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afterwards, such a belief was unreasonable. That is not to say he is not sincerely convinced

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his cause is just. But even if he does believe this, his belief has no reasonable basis. Moody

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knows the three doctors did not cause his illnesses, that they have made very extensive

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efforts to diagnose and treat him, and that he does not have liver cancer. Yet he persisted

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in suing these doctors, and pointlessly imposing costs on them.

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Furthermore, the standard for awarding fees does not require a showing of malice or

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frivolousness; all that is necessary to collect costs is that a party prevail, which Dr. Finander

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has done. Forcing her to bear the costs of defending against such baseless claims is

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unreasonable and unjust.

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Moody also asks that the bill of costs be stricken because he has appealed. But filing

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a notice of appeal does not require that the bill of costs be stricken, nor does the Court even

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have jurisdiction to do so. The bill of costs is now part of the judgment Moody has appealed
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from. See 28 U.S.C. § 1920. The Court of Appeals therefore has jurisdiction over the bill of

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costs along with the rest of the judgment Moody has appealed from, and this Court has been

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divested of such jurisdiction. Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc.,

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535 U.S. 826, 835 (2002) (Stevens, J., concurring in part and concurring in the judgment).

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Should the appellate court reverse this Court’s judgment, at least as to Dr. Finander, the

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award of costs would also be reversed, because Dr. Finander would no longer be the

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prevailing party.

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IV.

Service on Dr. Reddy

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In its order adopting the R&R, the Court directed the U.S. Marshal to re-attempt

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service of the First Amended Complaint and summons on Defendant Reddy within 30 days.

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Moody was sent an in forma pauperis packet when that order was entered, so that he could

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provide the U.S. Marshal information on where to serve Dr. Reddy. Apparently this order

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was not sufficiently clear, because the 30-day time period has come and gone, and Moody

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has not yet provided the Marshal with a completed form.

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Moody is therefore ORDERED, within 15 calendar days of the date this order is

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issued, to return the form sent to him, completed, so that the Marshal can re-attempt service

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on Defendant Reddy. The U.S. Marshal is ORDERED to re-attempt service on Defendant

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Reddy, as directed by Moody on the appropriate form, no later than 45 calendar days from

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the date this order is issued, and promptly to file a return of service.

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If Moody fails to provide a correctly completed form to the Marshal within the

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time permitted, all claims against Defendant Reddy may be dismissed without

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prejudice for failure to serve and for failure to prosecute.

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IT IS SO ORDERED.
DATED: 10/28/2011
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HONORABLE LARRY ALAN BURNS
United States District Judge

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