Turley v. Bedinger et al

Filing 165

ORDER granting 156 Motion for Taxation of Costs. Costs taxed in the amount of $ $350.00 against Danny Bedinger. Signed by Magistrate Judge Stephen C. Williams on 9/28/12. (amv)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

GREGORY TURLEY,
Plaintiff,
vs.

DAVID BEDINGER,
Defendant.

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Case No. 08-cv-7-SCW

MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
Before the Court is Plaintiff's Motion for Taxation of Costs (Doc. 156). Specifically,
Plaintif requests that he be awarded $350.00 in costs for the cost of filing his current case. A jury trial
was held on Plaintiff's claims against Defendant Bedinger for retaliation on February 21 & 22, 2012.
The trial resulted in a verdict in favor of Plaintiff and he received $1 in nominal damages. Plaintiff
claims that he is entided to recover the $350.00 filing fee from Defendant Bedinger because he is a
"prevailing party" under FEDERAL RULE OF CML PROCEDURE 54(d). Defendant Bedinger has filed
a Response (Doc. 158) in opposition to Plaintiff's motion. Defendant maintains that Plaintiff was not
a prevailing party under Rule 54(d) because he only succeeded on one of his claims against Defendant.
FEDERAL RULE OF CIVIL PROCEDURE

54(d) provides that "costs - other than

attorney's fees- should be allowed to the prevailing party." Under the rule there is a "presumption that
the losing party will pay costs" although the court is given discretion in determining whether costs
should be awarded or not. Rivera v. City of Chicago, 469 F.3d 631, 634 (7th Cir. 2006). "The
presumption in favor of awarding costs to the prevailing party is difficult to overcome, and the district
court's discretion is narrowly confmed- the court must award costs unless it states good reasons for

denying them." Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997)
(citing Congregation ofthe Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219,
222 (7th Cir. 1988)). The Seventh Circuit has recognized two situations in which costs are not
awarded, (1) when there has been misconduct by the party seeking costs and/ or (2) the exercise of
discretion in reducing or denying costs where the losing party is indigent. Mother & Father v.

Cassidy, 338 F.3d 704, 708 (7th Cir. 2003). The court is instructed to look at two issues when
awarding costs, whether the costs are recoverable and whether the amount sought is reasonable.

Majeske v. City ofChicago, 218 F.3d 816,824 (7th Cir. 2000). However, before awarding costs, the
court must determine whether the party seeking costs was a "prevailing party" for purposes of the rule.
Plaintiff seeks $350.00 in costs to cover the cost of his filing fees. Defendant Bedinger
does not argue that the costs are not recoverable costs 1 or unreasonable, but instead argues that Plaintiff
should not be awarded costs because he is not considered a "prevailing party." "A party prevails for
purposes of Rule 54(d) when a final judgment awards it substantial relief." Smart v. Local 702 Int'l

Bhd. ofElec. Workers, 573 F.3d 523, 525 (7th Cir. 2009). However, a party need not win on every
claim, but rather must get "substantial relief'' in order to be considered the prevailing party. Slane v.

Mariah Boats, Inc., 164 F .3d 1065, 1068 (7th Cir. 1999). Further, in determining who is a prevailing
party the court "should not depend on the position of the parties at each stage of the litigation but
should be made when the controversy is finally decided." Republic Tobacco Co. v. North Adantic

Trading Co., Inc., 481 F .3d 442, 446 (7th Cir. 2007) (citation omitted). In other words, the award
should not depend on who won "the various battles preceding final judgment." I d. There is a strong

1

Costs which are recoverable under 28 U .S.C. § 1920 include (1) fees of the clerk and
marshal, (2) fees for transcripts, (3) witness fees and expenses, (4) fees for copies of papers
necessarily obtained for use in the case, (5) docket fees, and (6) compensation for court-appointed
experts and interpreters. Republic Tobacco Co. v. N. Ad. Trading Co., Inc., 481 F.3d 442, 447
(7th Cir. 2007).

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presumption in favor of the prevailing party being awarded costs and the district court has "broad
discretion" in determining whether and to what extent to award costs. Weeks, 126 F .3d at 945 (citing

Finchum v. Ford Motor Co., 57 F.3d 526, 533 (7th Cir. 1995); Barber v. Ruther, 7 F.3d 636, 644
(7th Cir. 1993)). "The losing party has the burden to affirmatively show that the prevailing party is not
entided to costs." M T. Bank Co. v. Milton Bradley, Co., 945 F.2d 1404, 1409 (7th Cir. 1991).
Here, Defendants argue that Plaintiff should not be considered a prevailing party
because he only had judgment entered in his favor on one out of seven defendants and on only one of
two claims that he had against that defendant, Defendant Bedinger. However, the Court notes that
Plaintiff is not seeking costs from the other defendants who would most certainly be considered
prevailing parties on the claims against them. 2 Instead, Plaintiff is only seeking costs from Defendant
Bedinger who Plaintiff claims he was the prevailing party on the claims against him.
As Defendant Bedinger notes, Plaintiff had two claims against Defendant: (1) an
excessive force claim and (2) a retaliation claim. The excessive force claim was dismissed at trial on
Defendant Bedinger's motion for judgment as a matter oflaw. Plaintiff succeed on the lone claim that
was presented to the jury, retaliation, although he was awarded a nominal damage of $1. Defendant
claims that Plaintiff is not the prevailing party because he did not prevail on the most serious issue in
the case and cites to Perlman v. Zell, 185 F.3d 850, 859 (7th Cir. 1999) to support his argument.

2

Defendant cites to Perlman v. Zell, 185 F.3d 850, 858 (7th Cir. 1999) to support his
claim that the fact that six out of seven defendants prevailed in this case is relevant to determining
whether Plaintiff was a prevailing party. However, in Perlman, the Seventh Circuit did not question
the plaintiff's label of "prevailing party" because several of the defendants prevailed outright. In
fact, the Seventh Circuit noted that those five defendants who prevailed outright should, instead, not
have been ordered to contribute to plaintiff's costs and could be entided to their own costs against
plaintiff. /d. at p. 858. In analyzing the "prevailing party" issue, the Seventh Circuit looked at two
features which they suggested might not support plaintiff as the prevailing party: the fact that
plaintiff lost on the only federal claim in the case and plaintiff's modest recovery. /d. at p. 859.
Thus, in this case, the Court puts litde relevance on the fact that Plaintiff lost on his claims against
the other six defendants as Plaintiff properly does not seek costs from them.

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However, in Perlman, the Seventh Circuit questioned plaintiffs status as a prevailing party because
plaintiff had lost on the only federal claim. Id As the Seventh Circuit stated, "the district court has
discretion to treat defendants as the prevailing party because they prevailed on the only claim that
justified the presence in federal court." I d. That is not the case with Plaintiffs claims. Here, Plaintiff
succeeded on one of his two § 1983 claims.
Further, the Court finds that Plaintiff succeed on the most substantial issue, the
retaliation claim. While Defendant makes much of Plaintiffs loss on the excessive force claim, the
Court does not find that claim to be the most substantial of Plaintiffs claims as Plaintiff readily admitted
that the force was de minimis and he was not injured and thus the claim was properly dismissed at trial
on Defendant's motion for judgment as a matter of law. But Plaintiffs more substantial claim, the
retaliation claim against Defendant Bedinger, proceeded to the jury who ultimately found in favor of
Plaintiff. Although Plaintiff did lose on the excessive force claim, it is within this Court's discretion to
award costs when the judgment is mixed or even nominal as was the case here. 3

Gavoni v. Dobbs

House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999) ("[C]ourts have especially broad discretion to
award or deny costs in mixed result cases, including cases in which liability was established but
recovery was nominal relative to what was sought(intemal citation omitted)); Testa v. Village

ofMundelein, Ill., 89 F.3d 443, 447 (7th Cir. 1996) (decision not to award costs in a case with
mixed outcome is within court's discretion). See also Lipscher v. LRP Publications, Inc., 266
F.3d 1305, 1321 (11th Cir. 2001) (court has "substantial discretion" in determining whether to

3

While Plaintiffs award of $1 was nominal, it was the only award he could obtain for a
retaliation claim that did not result in physical or other injury. Although Plaintiffs award might be
small, it does not mean that he did not prevail on his claim as the violation itself is an injury.
Calhoun v. DeTella, 319 F.3d 936,940 (7th Cir. 2003). Thus, the fact that Plaintiff was only
awarded $1 does not prevent him from being the prevailing party as he did succeed on his claim and
the jury did find that a violation had occurred, Plaintiff was just not entitled to anything more than
nominal damages for the claim.

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award costs to a prevailing party who obtained a nominal victory). Accordingly, given the strong
presumption under Rule 54(d), the Court finds that the Plaintiff was the prevailing party for purposes
of Rule 54(d) as he prevailed on the most substantial of his claims against Defendant Bedinger and thus

is entided to costs. The Court GRANTS Plaintiff's motion for taxation of costs (Doc. 156) and
DIRECTS the Clerk of Court to tax costs against Defendant Bedinger in the amount of $350.00.
On a final note, Plaintiff asks that the Court issue a stop payment order to Menard
Correctional Center to stop the Trust Fund Officer from sending any more funds from Plaintiff's
account to this case as well as to direct that his filing fee in the current case be transferred to his other
outstanding filing fees. The Court will not do that. It is Plaintiff's responsibility to see that his filing
fees get paid and then to have his trust fund account reimbursed with the funds from Defendant. The
Court will not order the complicated and burdensome method of payment that Plaintiff suggests.

IT IS SO ORDERED.
DATED:

September 28, 2012
/s/ Stephen C. Williams
STEPHEN C. WilliAMS
United States Magistrate Judge

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