Dawkins v. City and County of Honolulu et al

Filing 280

ORDER DECLINING TO ADOPT THE FINDINGS AND RECOMMENDATION OF THE MAGISTRATE JUDGE TO DENY PLAINTIFF'S OBJECTION TO DEFENDANTS' BILL OF COSTS AS UNTIMELY (DOC. 270 ) AND GRANTING PLAINTIFF'S MOTION FOR ENLARGEMENT OF TIME (DOC. 274 ) A ND DENYING DEFENDANTS' MOTION FOR TAXATION OF COSTS (DOC. 268 ). Signed by JUDGE HELEN GILLMOR on 4/27/2012. ~ The Court DECLINES to adopt the Findings and Recommendation of the Magistrate Judge to Deny Plaintiff's Objectio n to Defendants Bill of Costs as Untimely (Doc. 270 ). Plaintiffs Motion for Enlargement of Time to File an Objection to the Defendants Bill of Costs (Doc. 274 ), which the Court construes as an Objection to the Magistrate Judge's Findings and Recommendation to Deny Plaintiff's Objection as Untimely, is GRANTED. Defendant's Motion for Taxation of Costs (Doc. 268 ) isDENIED. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Whitney Dawkins, Jr.,
Plaintiff,
vs.
City and County of Honolulu;
Zane Hamrick; Barry Tong; and
John Does 1-10,
Defendants.

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Civ. No. 10-00086 HG-KSC

ORDER DECLINING TO ADOPT THE FINDINGS AND RECOMMENDATION OF THE
MAGISTRATE JUDGE TO DENY PLAINTIFF’S OBJECTION TO DEFENDANTS’
BILL OF COSTS AS UNTIMELY (DOC. 270)
AND
GRANTING PLAINTIFF’s MOTION FOR ENLARGEMENT OF TIME (DOC. 274)
AND
DENYING DEFENDANTS’ MOTION FOR TAXATION OF COSTS (DOC. 268)
On February 3, 2012, a jury returned a verdict in favor of
Defendants City and County of Honolulu, Zane Hamrick, and Barry
Tong. (Doc. 260).

On February 8, 2012, the Clerk of the Court

entered Judgment. (Doc. 267).

On February 17, 2012, the

Defendants filed a Motion for Taxation of Costs. (Doc. 268).

On

February 28, 2012, the Plaintiff filed an Objection to the Bill
of Costs. (Doc. 269).

On February 29, 2012, the Magistrate Judge

issued a Findings and Recommendation to Deny the Plaintiff’s
Objection as Untimely. (Doc. 270).

On March 8, 2012, the

Plaintiff filed a Motion for Enlargement of Time to File an
Objection to the Defendants’ Bill of Costs. (Doc. 274).

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The

Court construes the Plaintiff’s Motion for Enlargement of Time as
an Objection to the Magistrate Judge’s Findings and
Recommendation.
The Court declines to adopt the Findings and Recommendation
of the Magistrate Judge to Deny Plaintiff’s Objection to
Defendant’s Bill of Costs as Untimely (Doc. 270).
The Court withdraws the reference to the Magistrate Judge
for the Defendants’ Motion for Taxation of Costs.

The District

Court conducted the trial and is more familiar with the
circumstances bearing on the taxation of costs, therefore, in the
interests of judicial economy, the Court considers the Motion.
Defendant’s Motion for Taxation of Costs (Doc. 268) is
DENIED.

PROCEDURAL HISTORY
On February 3, 2012, a jury returned a verdict in favor of
the Defendants. (Doc. 260).
On February 8, 2012, the Clerk of the Court entered
Judgment. (Doc. 267).
On February 17, 2012, the Defendants filed a Bill of Costs.
(Doc. 268).
On February 28, 2012, the Plaintiff filed an Objection to
the Bill of Costs. (Doc. 269).
On February 29, 2012, the Magistrate Judge issued a Findings
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and Recommendation to Deny Plaintiff’s Objection to Defendants’
Bill of Costs as Untimely. (Doc. 270).
On March 8, 2012, Plaintiff filed a Motion for Enlargement
of Time to File an Opposition to the Defendants’ Bill of Costs.
(Doc. 274).

The Court treats Plaintiff’s Motion as an Objection

to the Magistrate Judge’s Findings and Recommendation to Deny
Plaintiff’s Objection as Untimely.
On March 20, 2012, the Defendants filed a Response. (Doc.
279).
Pursuant to Local Rule 7.2(d), the Court elected to decide
the matters without a hearing.

STANDARDS OF REVIEW
I.

Findings and Recommendation
A magistrate judge may be assigned to prepare findings and

recommendation for a district judge on a matter that is
dispositive of a claim. Fed. R. Civ. P. 72(b)(1).

If a party

objects to the magistrate judge’s findings and recommendation,
the district court must review de novo those portions to which
objection is made. United States v. Raddatz, 447 U.S. 667, 673
(1980); Fed. R. Civ. P. 72(b)(2).

The district court “may

accept, reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge,” or recommit the
matter to the magistrate judge with further instructions. 28
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U.S.C. § 636(b)(1); Raddatz, 447 U.S. at 673-74; Fed. R. Civ. P.
72(b)(3).
De novo review means the district court must consider the
matter anew, as if the matter had not been heard before and no
previous decision rendered. Ness v. Commissioner, 954 F.2d 1495,
1497 (9th Cir. 1992).

The district court must arrive at its own

independent conclusion about those portions to which objections
are made, but a de novo hearing is not required. United States v.
Remsing, 874 F.2d 614, 617-18 (9th Cir. 1989).

II.

Bill of Costs
Federal Rule of Civil Procedure 54(d)(1) provides: “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.”

Although Rule 54(d) creates a presumption

that costs will be awarded, the district court has wide
discretion in deciding whether to award costs. See Assoc. of
Mexican-American Educators v. California, 231 F.3d 572, 591 (9th
Cir. 2000) (en banc) (citing Nat’l Info Servs., Inc. v. TRW,
Inc., 51 F.3d 1470, 1471 (9th Cir. 1995)); K-S-H Plastics, Inc.
v. Carolite, Inc., 408 F.2d 54, 60 (9th Cir. 1969).

If the

district court decides not to award costs, it must specify its
reasons. Mexican-American Educators, 231 F.3d at 592; Save Our
Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003).
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The district court may consider several factors in refusing
to award costs to a prevailing party, including: (1) the losing
party’s limited financial resources; (2) misconduct on the part
of the prevailing party; (3) the chilling effect on future civil
rights litigants of imposing high costs; (4) the public
importance of the issues in the case; (5) the closeness and
difficulty of the issues in the case; and (6) the merit of the
plaintiff’s case. See Save Our Valley, 335 F.3d at 945; MexicanAmerican Educators, 231 F.3d at 592.

ANALYSIS
I.

Plaintiff’s Objection to Findings and Recommendation
The Magistrate Judge’s Findings and Recommendation

recommends denying the Plaintiff’s Objection to the Defendants’
Bill of Costs on the ground that it is untimely.
Bill of Costs was filed on February 17, 2012.

The Defendants’

Under Local Rule

of Civil Procedure 54.2(d), an objection to a bill of costs must
be filed within seven days after the bill of costs is served.
After adding 3 days after the period would otherwise expire
pursuant to Federal Rule of Civil Procedure 6(d), the deadline
for Plaintiff’s Objection was February 27, 2012.

Plaintiff did

not file his Objection until February 28, 2012.
Plaintiff Objects to the Magistrate Judge’s Findings and
Recommendation and requests an extension of time, nunc pro tunc,
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on the ground that the late filing was due to excusable neglect.
According to the Plaintiff, the Defendants’ Bill of Costs was not
filed until 3:00 pm on Friday, February 17, 2012.

Plaintiff’s

counsel submitted a Declaration in which he states that, due to
the Bill of Costs being filed late in the afternoon on a Friday,
he did not see it in his email until late Sunday, February 19,
2012.

Plaintiff’s counsel avers that he miscalculated the

deadline for his Objection and believed it was February 28, 2012.
Plaintiff’s counsel also states that several unexpected matters
prevented him from filing the Objection earlier, including a
sudden revocation of probation hearing for a client who was
arrested, and two emergency appointments with an oral surgeon and
a dentist, one of which involved his tooth being extracted.
Federal Rule of Civil Procedure 6(b) allows the Court to
grant an extension of time after a deadline has expired if the
party failed to act because of excusable neglect.

To determine

whether a party’s failure to meet a deadline constitutes
excusable neglect, courts must examine: (1) the danger of
prejudice to the opposing party; (2) the length of the delay and
its potential impact on the proceedings; (3) the reason for the
delay; and (4) whether the movant acted in good faith. See
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 395 (1993); Comm. for Idaho's High Desert, Inc. v.
Yost, 92 F.3d 814, 825 n. 4 (9th Cir. 1996) (concluding that the

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Pioneer test applies to Rule 6(b) motions).
These factors weigh in favor of allowing the Plaintiff an
extension of time, and proceeding to consider the merits of his
Objection to the Defendants’ Bill of Costs.

The length of the

delay in filing the Objection was only one day, and it has caused
little, if any, prejudice to the Defendants.

Plaintiff’s counsel

submitted a Declaration in which he avers that he miscalculated
the deadline and believed his Objection was timely, in part due
the Bill of Costs being filed late in the afternoon on a Friday.
The Supreme Court has held that excusable neglect “encompass[es]
situations in which the failure to comply with a filing deadline
is attributable to negligence,” and includes “omissions caused by
carelessness.” Pioneer Inv. Servs. co., 507 U.S. at 388, 394.
The question of whether neglect is excusable “is at bottom
an equitable one, taking into account all relevant circumstances
surrounding the party’s omission.” Id. at 395.

The circumstances

and equities present in this case weigh in favor of allowing the
Plaintiff a one day extension of time and allowing consideration
of his Objection on its merits.

Although he may have acted

carelessly, Plaintiff’s counsel appears to have acted in a good
faith attempt to meet the deadline.
Plaintiff’s Motion for Enlargement of Time to File an
Objection to the Defendants’ Bill of Costs, which the Court
construes as an Objection to the Magistrate Judge’s Findings and

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Recommendation to Deny Plaintiff’s Objection as Untimely (Doc.
274), is GRANTED.

II.

Objection to Bill of Costs
The Defendants request an award of $22,642.30 in costs

pursuant to Federal Rule of Civil Procedure 54(d).

In addition

to objecting to specific portions of the Defendants’ itemized
costs, the Plaintiff Objects to the Bill of Costs in its
entirety.

The Plaintiff argues that he is unable to pay costs,

and awarding them would have a chilling effect on future civil
rights litigants.
Federal Rule of Civil Procedure 54(d)(1) provides that costs
other than attorney’s fees should be awarded to a prevailing
party unless a federal statute, rule of civil procedure, or court
order provides otherwise.

When deciding whether to award costs,

the district court may consider: (1) the losing party’s limited
financial resources; (2) misconduct on the part of the prevailing
party; (3) the chilling effect on future civil rights litigants
of imposing high costs; (4) the public importance of the issues
in the case; (5) the closeness and difficulty of the issues in
the case; and (6) the merit of the plaintiff’s case. See Save Our
Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003);
Assoc. of Mexican-American Educators v. California, 231 F.3d 572,
592 (9th Cir. 2000).

In general, the Court should not impose
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costs if it would be “inequitable under the circumstances.”
Washburn v. Fagan, 2008 WL 361048, at *1 (N.D. Cal. 2008).

The

Court declines to award costs to the Defendants based on a review
of these factors.

1.

The losing party’s limited financial resources

Courts must consider a party’s financial condition when
deciding whether to award costs. See Assoc. of Mexican-American
Educators, 231 F.3d at 592.

An award of $22,642.30 is not de

minimus and would greatly add to the financial difficulty of the
Plaintiff.

The Plaintiff is mentally disabled and unable to

work, resides with his parents, and supported by a Social
Security disability benefit.

2.

Misconduct on the part of the prevailing party

Plaintiff does not allege that counsel for the Defendants
engaged in misconduct.

3.

The chilling effect on future civil rights litigants of
imposing high costs

Imposing costs in this action would likely have a strong
chilling effect on future civil rights litigants who similarly
lack financial resources. See Stanley v. University of Southern
California, 178 F.3d 1069 (9th Cir. 1999) (finding that the

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district court abused its discretion in awarding costs because it
failed to consider the losing party’s “indigency, and the
chilling effect of imposing such high costs on future civil
rights litigants.”).

A number of courts have declined to award

costs to the prevailing party in similar actions involving a
disparity in financial resources between the parties and a risk
of discouraging civil rights litigants with modest means from
seeking redress. See, e.g., Washburn v. Fagan, 2009 WL 2392094;
Darensburg v. Metropolitan Transp. Com’n, 2009 WL 2392094 (N.D.
Cal. 2009); Bowoto v. Chevron Corp., 2009 WL 1081096, at *2 (N.D.
Cal. 2009).

4.

The public importance of the issues in the case

The Plaintiff’s case presented important public issues
regarding the manner in which police officers should respond to
noncompliant mentally ill individuals, the methods they should
use to gain compliance, and the amount of force they should use,
if necessary, to subdue them.

The closeness of the Plaintiff’s

case reflects the great difficulty in resolving these complex
issues, and the importance of having cases like the Plaintiff’s
considered by the public.

5.

The closeness and difficulty of the issues in the case

The jury had considerable difficulty deciding the case, and
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deliberated for almost five days after a six and a half day
trial.

The jury sent three notes to the Court expressing concern

that they might not be able to reach a unanimous verdict.

The

jury began their deliberations at 3:55 pm in the afternoon after
the close of trial.

At 11:20 am the next day, after having

deliberated for merely a few hours, the jury submitted a note to
the Court asking: “What happens if we can’t have/make an [sic]
unanimous decision?” (Note from the Jury #1 (Doc. 264)).

On the

third day of deliberations, the jury returned a second note,
stating: “We came to the conclusion that we can not reach
unanimous agreement. Please advise us of the next steps.” (Note
from the Jury #2 (Doc. 265)).

On the fourth day of

deliberations, the jury submitted a third and final note,
stating: “. . . our positions did not changed [sic]. We can not
reach an [sic] unanimous agreement.” (Note from the Jury #3 (Doc.
266)).

The Court then provided the jury with an Allen charge

that directed the jury to continue to carefully consider the
evidence.
verdict.

On the fifth day of deliberations, the jury returned a
Although the jury ultimately was able to return a

verdict, their notes reveal that they had great difficulty
agreeing on the very close issues in the case.
The evidence presented at trial was conflicting and
comprised primarily of testimony from witnesses who described
very different versions of the events.

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The jury’s evaluation of

the testimony turned primarily on credibility determinations.
One witness, an uninvolved bystander, testified that the police
officers gave the Plaintiff the worst beating he had ever seen,
and repeatedly punched the Plaintiff even though he was not
resisting.
In Washburn v. Fagan, a district court considered a case
involving similar circumstances, and declined to award costs,
explaining:
The closeness of the case . . . leads the Court to
conclude that an award of costs would be inequitable in
this situation. There was conflicting testimony
presented at trial regarding Defendants’ conduct and
use of force. The jury’s evaluation of the witnesses’
competing versions of events turned largely on
credibility issues, and the answers were far from
obvious. In fact, before reaching a unanimous verdict,
the jury twice sent notes to the Court indicating they
may not be able to reach unanimity.
2008 WL 361048, at *3.

6.

The merit of the plaintiff’s case

Although the jury returned a verdict in favor of the
Defendants on both Plaintiff’s claims for excessive force under
the Fourth Amendment of the United States Constitution and
battery under Hawaii common law, the Plaintiff’s action was not
entirely lacking in merit.
The jury first found that the Defendants were not liable for
using excessive force in violation of the Fourth Amendment of the
United States Constitution.
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The jury next considered the Plaintiff’s battery claim.

To

determine whether the Defendants were liable for battery, the
jury needed to make two findings.

First, the jury needed to

determine whether the police officers committed a battery by
intentionally contacting the Plaintiff, without his consent, in a
manner that was unreasonable under the circumstances.

Second,

the jury needed to determine whether the police officers were
entitled to qualified immunity from liability for the battery.
Under Hawaii state law, police officers are entitled to qualified
immunity from liability for battery unless there is clear and
convincing evidence that they acted with malice.
As to the first question, the jury found, by a preponderance
of the evidence, that Defendants Hamrick and Tong committed a
battery against the Plaintiff.

As to the second question,

however, the jury found that there was not clear and convincing
evidence that the police officers acted with malice.

The

officers were therefore entitled to qualified immunity.

Although

Defendants Hamrick and Tong were entitled to qualified immunity,
the jury’s battery finding nevertheless reflects that the
Plaintiff’s case was far from frivolous.

Based on the foregoing reasons, the Court declines to award
costs to the Defendants.

Defendants’ Motion for Taxation of

Costs (Doc. 268) is DENIED.

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CONCLUSION
The Court DECLINES to adopt the Findings and Recommendation
of the Magistrate Judge to Deny Plaintiff’s Objection to
Defendant’s Bill of Costs as Untimely (Doc. 270).
Plaintiff’s Motion for Enlargement of Time to File an
Objection to the Defendants’ Bill of Costs (Doc. 274), which the
Court construes as an Objection to the Magistrate Judge’s
Findings and Recommendation to Deny Plaintiff’s Objection as
Untimely, is GRANTED.
Defendant’s Motion for Taxation of Costs (Doc. 268) is
DENIED.
IT IS SO ORDERED.
DATED: April 27, 2012, Honolulu, Hawaii.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Dawkins v. City and County of Honolulu; Zane Hamrick; Barry Tong;
John Does 1-10, Civ. No. 10-00086 HG-KSC; ORDER DECLINING TO
ADOPT THE FINDINGS AND RECOMMENDATION OF THE MAGISTRATE JUDGE TO
DENY PLAINTIFF’S OBJECTION TO DEFENDANT’S BILL OF COSTS AS
UNTIMELY (DOC. 270) GRANTING PLAINTIFF’S MOTION FOR ENLARGEMENT
OF TIME (DOC. 274) AND DENYING DEFENDANTS’ MOTION FOR TAXATION OF
COSTS (DOC. 268).

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