King v. Schieferrdecker et al
Filing
159
OPINION entered by Judge Sue E. Myerscough on 11/4/2011. Plaintiff's Objection to Bill of Costs (d/e 156) is GRANTED and the Bill of Costs (d/e's 149 and 151) are DENIED. (MAS, ilcd)
E-FILED
Friday, 04 November, 2011 05:16:43 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JERMAIN KING,
)
)
Plaintiff,
)
)
v.
)
)
SHERIFF OF SCHUYLER COUNTY )
DON L. SCHIEFERDECKER, et al.
)
)
Defendants.
)
No. 08-3213
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Plaintiff Jermain King’s Objection
Opposing the Defendants’ Respective Bill of Costs (d/e 156). For the
reasons that follow, the Objection is GRANTED.
I. BACKGROUND
On September 9, 2011, judgment was entered in favor of
Defendants Illinois Department of Human Services et al. and Defendants
Don L. Schieferdecker and Thomas Kanoski. See d/e 141. Thereafter,
Defendants Illinois Department of Human Services et al. filed a Bill of
Costs seeking $755.66 (d/e 149) and Defendants Schieferdecker and
Kanoski filed a Bill of Costs seeking $399.66 (d/e 151). Plaintiff has
objected to Defendants’ Bill of Costs (d/e 156) on the basis that he is
indigent.
II. ANALYSIS
Under Federal Rule of Civil Procedure 54(d), costs shall be allowed
to the prevailing party unless the court orders otherwise. Fed.R.Civ.P.
54(d). The presumption that costs be awarded to the prevailing party
may be overcome by a showing of indigency. Badillo v. Central Steel &
Wire Co., 717 F.2d 1160, 1165 (1983). However, it remains within the
court’s discretion whether to award costs under Rule 54(d). McGill v.
Faulkner, 18 F.3d 456, 459 (7th Cir. 1994).
When determining whether to hold an indigent party liable for
costs, the court (1) “must make a threshold factual finding that the
losing party is ‘incapable for paying the court-imposed costs at this time
or in the future’”; and (2) “should consider the amount of costs, the good
faith of the losing party, and the closeness and difficulty of the issues
raised by the case.” Rivera v. City of Chicago, 469 F.3d 631, 635 (7th
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Cir. 2006).
Here, Plaintiff asserts that this Court should deny Defendants’ Bill
of Costs because the Court previously found him indigent and found the
appeal was taken in good faith. See September 30, 2011 Text Order
(finding Plaintiff without funds to pay the filing fee and finding the
appeal was taken in good faith). Defendants have not filed a response to
Plaintiff’s Objection.
In accordance with Rivera, this Court first determines whether
Plaintiff is incapable of paying the costs at this time or in the future.
Plaintiff’s affidavit, which was attached to his motion to proceed on
appeal in forma pauperis, reflected that Plaintiff, age 29, had no income
and no assets. His only listed expense was a $20.00 per month payment
for “[A]limony, maintenance, and support paid to others.” Plaintiff did
not expect any major changes to his monthly income, expenses, or assets
during the next year. Plaintiff listed three children who relied on him for
support. In addition, evidence submitted during summary judgment
indicated Plaintiff was blind in his right eye. This Court finds that
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Plaintiff is incapable for paying the costs at this time or in the future.
This case is distinguishable from Rivera, 469 F.3d at 637, in which
the Seventh Circuit found that the district court abused its discretion in
denying costs be awarded to the prevailing party. In Rivera, the plaintiff
did not provide the court with a schedule of expenses and did not
identify a basis for finding that she would be incapable of paying the
costs in the future. Id. The plaintiff was employed full-time, had no
medical problems, and had a $175,000 judgment against a prisoner (and
had not yet filed a citation to discovery that prisoner’s assets to
determine whether he had any assets to satisfy the judgment). Id. In
contrast here, the information submitted by Plaintiff indicates he has no
ability to pay the costs at this time and is unlikely to be able to pay them
in the future.
Second, this Court considers the amount of costs, the good faith of
the losing party, and the closeness and difficulty of the issues raised by
the case. The amount of costs are $1,155.12, a large amount in light of
Plaintiff’s lack of any income or assets. The Court also finds that
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Plaintiff brought the case in good faith. Finally, although the Court does
not find that the issues were particularly close or difficult, the Court does
find this factor is neutral.
Because Plaintiff has overcome the presumption that costs be
awarded to the prevailing party, Plaintiff’s Objection (d/e 156) is
GRANTED and the Bill of Costs (d/e 149, 151) are DENIED.
ENTER: November 4, 2011
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATE DISTRICT JUDGE
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