Kates v. Nocco

Filing 116

ORDER: Plaintiff Eileen Kates's Motion to Waive Costs (Doc. # 111) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 11/13/2023. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EILEEN KATES,
v.

Plaintiff,

Case No. 8:22-cv-342-VMC-TGW

CHRIS NOCCO,
in his official capacity as
Sheriff of Pasco County,
Defendant.
______________________________/
ORDER
This matter is before the Court on consideration of
Plaintiff Eileen Kates’s Motion to Waive Costs (Doc. # 111),
filed on October 20, 2023. Defendant Sheriff Chris Nocco
responded on November 1, 2023. (Doc. # 113). For the reasons
that follow, the Motion is denied.
I.

Background
On February 9, 2022, Ms. Kates initiated this action

against Sheriff Nocco in his official capacity as Sheriff of
Pasco County. (Doc. #1). The complaint asserted violations of
the First, Fourth, and Fourteenth Amendments arising out of
Sheriff

Nocco’s

Intelligence-Led

Policing

Program

(“ILP

Program”). (Id.). The essence of Ms. Kates’s claims was that
she had “been discriminated against and treated differently
by the [Pasco County Sheriff’s Office (“PSO”)] because her
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son, Ryan, is a target of the [PSO] based on the ILP Program’s
crude algorithm’s determination that Ryan is a ‘prolific
offender.’” (Id. at 23).
The case proceeded through discovery, which revealed
that Ryan Kates had never been designated as a prolific
offender and no prolific offender checks were made to Ms.
Kates’s home. Rather, all the complained-of visits to Ms.
Kates’s home occurred because there was an arrest warrant for
Ryan Kates, Ryan Kates was the suspect in another criminal
investigation,

or

another

of

Ms.

Kates’s

family

members

called the PSO for service.
Apparently recognizing this flaw in her claims, Ms.
Kates moved to amend the complaint nearly a year after the
deadline to amend and a month after the close of discovery.
(Doc. # 57). The Court denied the motion, finding no good
cause to allow Ms. Kates to amend the factual and legal bases
for her Section 1983 claims after discovery had ended. (Doc.
# 60).
Yet, Ms. Kates did not move to voluntarily dismiss this
case after her motion to amend was denied. When Sheriff Nocco
soon after moved for summary judgment, Ms. Kates opposed the
entry of summary judgment. (Doc. # 87). On September 13, 2023,
the Court granted summary judgment in favor of Sheriff Nocco.
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(Doc. # 107). The Court ruled that the ILP Program was not
the moving force behind the alleged constitutional violations
because “Ryan Kates was never a ‘prolific offender’ who — by
that designation — became a subject of Sheriff Nocco’s ILP
Program, along with his family members.” (Id. at 26). “Thus,
because he was not a ‘prolific offender’ under the ILP Program
and no ‘prolific offender checks’ were performed at the Kates
Home as Ms. Kates alleged, Ms. Kates cannot prove that the
policy of the ILP Program was the ‘moving force’ behind her
injuries.” (Id.). Judgment was entered the next day. (Doc. #
108).
Subsequently, Sheriff Nocco filed a proposed Bill of
Costs on September 27, 2023. (Doc. # 109). On October 13,
2023, the Clerk entered the Bill of Costs, taxing $6,074.90
in costs against Ms. Kates. (Doc. # 110).
Seven days later, on October 20, 2023, Ms. Kates timely
filed the instant Motion. (Doc. # 111). Sheriff Nocco has
responded (Doc. # 113), and the Motion is ripe for review.
II.

Legal Standard
Federal Rule of Civil Procedure 54(d)(1) provides in

relevant part: “Unless a federal statute, these rules, or a
court order provides otherwise, costs — other than attorney’s
fees — should be allowed to the prevailing party. . . . The
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clerk may tax costs on 14 days’ notice. On motion served
within the next 7 days, the court may review the clerk’s
action.”

Fed.

R.

Civ.

P.

54(d)(1).

“That

provision

establishes a presumption that costs are to be awarded to a
prevailing

party,

but

vests

the

district

court

with

discretion to decide otherwise.” Chapman v. AI Transp., 229
F.3d 1012, 1038 (11th Cir. 2000).
“However, the district court’s discretion not to award
the full amount of costs incurred by the prevailing party is
not unfettered, since denial of costs is in the nature of a
penalty for some defection on [the prevailing party’s] part
in the course of the litigation.” Id. at 1039 (citations and
internal quotation marks omitted). “To defeat the presumption
and deny full costs, a district court must have and state a
sound basis for doing so.” Id.
“[A] non-prevailing party’s financial status is a factor
that a district court may, but need not, consider in its award
of costs pursuant to Rule 54(d).” Id. “If a district court in
determining the amount of costs to award chooses to consider
the

non-prevailing

party’s

financial

status,

it

should

require substantial documentation of a true inability to
pay.” Id. “Even in those rare circumstances where the nonprevailing party’s financial circumstances are considered in
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determining the amount of costs to be awarded, a court may
not decline to award any costs at all.” Id.
While the Court may consider the non-prevailing party’s
good faith, “good faith and limited financial resources are
not enough to overcome the strong presumption in favor of
awarding costs to the prevailing party.” Pickett v. Iowa Beef
Processors, 149 F. App’x 831, 832 (11th Cir. 2005).
III. Analysis
Here, Ms. Kates does not challenge as unlawful the type
of costs or amount of costs taxed. See (Doc. # 111 at 4) (“Ms.
Kates

does

not

dispute

that

.

.

.

Sheriff

Nocco

is

presumptively entitled to the costs he seeks by rule and
statute.”). Rather, she requests that the Court exercise its
discretion to waive the imposition of all costs. She argues
that she cannot afford to pay the costs, she brought her
claims in good faith, and imposing costs would have a chilling
effect on other potential civil rights plaintiffs. (Id. at 59).
The

Court

sympathizes

with

Ms.

Kates’s

financial

struggles. These struggles, however, are not so dire that
they should be considered a factor in the analysis here. See
Chapman, 229 F.3d at 1039 (noting that “there [must] be clear
proof

of

the

non-prevailing
5

party’s

dire

financial

circumstances before that factor can be considered” (emphasis
added)). Notably, Ms. Kates did not proceed in this case in
forma pauperis; rather, she paid the $402 filing fee when the
case was initiated. (Doc. # 1). Although Ms. Kates’s unsigned
declaration states that her only income is $1,355 in monthly
Social

Security

disability

benefits,

she

lives

with

and

splits expenses with her ex-husband, who is employed and earns
approximately $2,000 per month. (Doc. # 112 at 2). Thus, her
household income is more substantial than her disability
benefits alone.
Furthermore, Ms. Kates owns her home and her vehicle
outright (Id.) — valuable assets most non-prevailing parties
in dire financial circumstances do not possess. See Hall v.
Merola, No. 3:15-cv-1054-BJD-PDB, 2020 WL 7047704, at *1
(M.D. Fla. Dec. 1, 2020) (reducing costs by 50% where the
indigent plaintiff “was released from prison in mid-2019, and
was

thereafter

civilly

detained

at

the

Florida

Civil

Commitment Center (FCCC),” had “no money in his FCCC resident
bank account,” and did “not own anything of value”); Jessup
v. Miami-Dade Cnty., No. 08-21571-CIV, 2011 WL 294417, at *1
(S.D. Fla. Jan. 27, 2011) (reducing $36,823.43 cost award by
45% where the non-prevailing party “ha[d] no bank accounts,
vehicles, real estate, insurance, or any other meaningful
6

assets,” and had Social Security income of $650 a month);
Hernandez v. Mascara, No. 07-14276-CIV, 2010 WL 11591779, at
*1 (S.D. Fla. Sept. 7, 2010) (reducing taxed costs by 90%
where the plaintiff was permanently disabled, “destitute,”
and entirely “dependent on the meager aid that her son and
her mother receive from the Mexican government”), report and
recommendation adopted, No. 07-14276-CIV, 2011 WL 13263366
(S.D. Fla. Jan. 18, 2011). In short, this is not one of the
“rare circumstances,” Chapman, 229 F.3d at 1039, in which the
Court

will

consider

the

non-prevailing

party’s

financial

circumstances. See Ramsay v. Broward Cnty. Sheriff’s Off.,
No. 05-61959-CIV, 2008 WL 3851648, at *3 (S.D. Fla. Aug. 14,
2008)

(requiring

non-prevailing

plaintiff

to

“reimburse

Defendant $2,225.17 for costs incurred in its defense” where
plaintiff “receives a monthly income of roughly $1000.00 with
no substantial savings and no significant assets”); George v.
Fla. Dep’t of Corr., No. 07-80019-CIV, 2008 WL 2571348, at *8
(S.D. Fla. May 23, 2008) (“[T]he Court finds that George has
documented and otherwise demonstrated some hardship in paying
costs. He has not, however, shown ‘clear proof’ of the type
of ‘dire financial circumstances’ required by the Eleventh
Circuit for the Court to exercise its discretion to reduce
the cost award to FDOC on this basis. Consequently, the
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undersigned recommends that the Court award costs to FDOC in
the amount of $4,055.02.”), report and recommendation adopted
in part, No. 07-80019-CIV, 2008 WL 11412061 (S.D. Fla. July
7, 2008).
Nor is the Court persuaded by Ms. Kates’s other arguments
regarding a chilling effect and good faith. Ms. Kates cites
one district court case for the proposition that requiring
her to pay the taxable costs “would have a chilling effect on
future

plaintiffs

bringing

claims.”

Mamani

v.

Sanchez

Berzain, No. 07-22459-CIV, 2018 WL 7021966, at *1 (S.D. Fla.
Dec. 12, 2018) (denying motion to tax costs against nonprevailing and indigent plaintiffs, who were the relatives of
Bolivian

civilians

allegedly

killed

deliberately

by

the

Bolivian military) (citation omitted).
“Not

only

is

Mamani

factually

and

legally

distinguishable from this [case], but [Ms. Kates] cites no
Eleventh Circuit authority recognizing a potential ‘chilling
effect’ as a factor district courts may consider in ruling on
a motion for taxation of costs.” Hall, 2020 WL 7047704, at
*2. “On the contrary, the Eleventh Circuit has emphasized
Rule 54(d)(1) establishes a presumption that a prevailing
party should be awarded costs, and courts should have a ‘sound
basis’ to override that presumption ‘since denial of costs is
8

in the nature of a penalty.’” Id. (quoting Chapman, 229 F.3d
at

1038-39).

legally

and

Furthermore,
factually

“no

sound

chilling
action,

effect

‘civil

deters

rights’

a
or

otherwise; a chilling effect on a legally and factually
marginal or dubious action is a much less consequential
matter.” Garrett v. Univ. of S. Fla. Bd. of Trustees, No.
8:17-cv-2874-SDM-AAS, 2020 WL 4810301, at *1 (M.D. Fla. July
24, 2020).
Finally, while Ms. Kates emphasizes that she is not a
lawyer and insists that her litigation of the case was in
good faith, the Court is unpersuaded. The Court does not doubt
that Ms. Kates initiated this case in good faith back in
February 2022. Yet, even after she learned that neither she
nor her son was subject to the prolific offender checks about
which she complained, Ms. Kates continued litigating her
flawed claims. As the Court noted in its Order denying Ms.
Kates’s motion to amend, Ms. Kates learned by — at the very
latest — early August 2022 that her son was never designated
a prolific offender by the PSO. (Doc. # 60 at 7). That is,
she became aware at least six months before the discovery
deadline and eight months before Sheriff Nocco moved for
summary judgment that the entire premise of her complaint was
incorrect.
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Even after the Court denied Ms. Kates’s motion to amend
her claims’ factual and legal underpinning, Ms. Kates did not
seek to voluntarily dismiss the case. Instead, she continued
litigating and sought to defeat summary judgment. Ms. Kates,
who was represented by experienced counsel throughout the
entirety of the case, cannot now plead ignorance to avoid
paying the costs Sheriff Nocco incurred in defending himself. 1
Importantly, the Eleventh Circuit has advised that “good
faith and limited financial resources are not enough to
overcome the strong presumption in favor of awarding costs to
the prevailing party.” Pickett, 149 F. App’x at 832.
In short, the Court in its discretion declines to waive
any portion of the taxable costs.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Plaintiff Eileen Kates’s Motion to Waive Costs (Doc. #
111) is DENIED.

The Court also does not agree with Ms. Kates’s assertion
that she lost on summary judgment because of a mere “pleading
issue.” (Doc. # 111 at 8). Summary judgment was granted on
the merits. Ms. Kates failed to establish that the official
policy of the ILP Program was the “moving force” behind any
alleged constitutional violations — a necessary component of
her claims. (Doc. # 107).

1

10

DONE and ORDERED in Chambers in Tampa, Florida, this
13th day of November, 2023.

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