Kozar v. Cook County Jail et al

Filing 152

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 3/15/2018.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDREW KOZAR,
Plaintiff,
vs.
OFFICER MUNOZ, OFFICER HARDWICK,
OFFICER ERVIN, OFFICER FABIAN, OFFICER
COLLIER, OFFICER SMITH, and COUNTY OF
COOK,

Defendants.

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14 C 2634
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Andrew Kozar brought this suit under 42 U.S.C. § 1983 alleging that correctional officers
at Cook County Jail were deliberately indifferent on several occasions to a substantial risk of
harm posed by other detainees. Doc. 40. The court granted summary judgment to two of the
officers, but let the claims against the others proceed to trial. Docs. 79-80 (reported at 230 F.
Supp. 3d 915 (N.D. Ill. 2017)). A jury returned a verdict in favor of the remaining defendants,
and judgment was entered. Docs. 129-130, 135.
Defendants now seek $7,409.50 in costs pursuant to Federal Rule of Civil Procedure
54(d)(1) and 28 U.S.C. § 1920. Doc. 136; Doc. 143 at 5. Kozar argues that he is indigent and
therefore should not be subjected to a cost award. Doc. 142.
A prevailing party “presumptively receives the costs of litigation and it is the losing
party’s burden to overcome this presumption.” Johnson v. Target Corp., 487 F. App’x 298, 301
(7th Cir. 2012). But “it is within the discretion of the district court to consider a plaintiff’s
indigenc[e] in denying costs under Rule 54(d).” Rivera v. City of Chicago, 469 F.3d 631, 634

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(7th Cir. 2006) (internal quotation marks omitted). Rivera directs district courts to undertake a
two-step analysis when presented with a claim of indigence:
First, the district court must make a threshold factual finding that the
losing party is incapable of paying the court-imposed costs at this time or in the
future. The burden is on the losing party to provide the district court with
sufficient documentation to support such a finding. This documentation should
include evidence in the form of an affidavit or other documentary evidence of
both income and assets, as well as a schedule of expenses. Requiring a nonprevailing party to provide information about both income/assets and expenses
will ensure that district courts have clear proof of the non-prevailing party’s dire
financial circumstances. Moreover, it will limit any incentive for litigants of
modest means to portray themselves as indigent.
Second, the district court should consider the amount of costs, the good
faith of the losing party, and the closeness and difficulty of the issues raised by
a case when using its discretion to deny costs. No one factor is determinative,
but the district court should provide an explanation for its decision to award or
deny costs.
Id. at 635-36 (citations and internal quotation marks omitted).
As for the first step, Kozar submits an affidavit averring that he was incarcerated, has no
assets, and owes $14,000 in enumerated debts. Doc. 142 at 3. Kozar also avers that he suffers
from seizures and has been diagnosed with depression and post-traumatic stress disorder, that his
highest level of education is high school, and that he will be required to register as a sex offender
upon his release. Ibid. Kozar’s projected release date was March 12, 2018. Doc. 143 at 5. Even
if he has been released as scheduled, the unfortunate reality is that Kozar’s income-generating
capabilities are likely to be severely limited. Given these circumstances, Kozar has sufficiently
established that he is “incapable of paying the court-imposed costs at this time or in the future.”
Rivera, 469 F.3d at 635 (internal quotation marks omitted); see also Mathis v. Carter, 2017 WL
2243040, at *1 (N.D. Ill. May 23, 2017) (declining to assess costs against a losing party who was
incarcerated and indigent); Shultz v. Dart, 2016 WL 3227276, at *2 (N.D. Ill. June 13, 2016)
(same).

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As for the second step of the analysis, while the requested costs are by no means
astronomical, they still would pose a substantial hardship to Kozar, who presently lacks any
source of income, whose post-incarceration income-generating capabilities are likely to be
severely limited, and who is already burdened by substantial debt. Moreover, Kozar pursued this
case in good faith. He was seriously injured by fellow inmates, and most of his constitutional
claims were meritorious enough to survive summary judgment. Although the jury ultimately
found that the defendants were not deliberately indifferent to his safety, a verdict for Kozar
would have survived, in large part or perhaps in its entirety, a defense motion under Civil Rule
50 for judgment as a matter of law.
For these reasons, the court denies Defendants’ request for costs.

March 15, 2018
United States District Judge

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