Chesser v. Walton et al
MEMORANDUM AND ORDER, re: plaintiff Zachary Chesser's objection (Doc. 300 ) to the bill of costs filed by the defendants. The Court OVERRULES Chesser's objection to costs but will reduce the amount of costs requested to $300.00. The Court further DIRECTS the Clerk of Court to enter a judgment of costs accordingly. Signed by Judge J. Phil Gilbert on 10/11/2017. (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
J.S. WALTON, et al.,
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Zachary Chesser’s objection (Doc. 300) to the
bill of costs filed by the defendants in the amount of $1,816.79 for deposition transcripts and
witness fees (Doc. 297). Chesser argues in support of his request that at various times
throughout this case the defense “disappeared” and was sanctioned, that the bill contains
unnecessary expenses, and that the depositions relate solely to a claim that was mooted by his
transfer to another institution. He argues he litigated in good faith and in a professional manner.
In their response (Doc. 305), the defendants note that Chesser sued forty defendants and lost on
all counts. They further argue that the costs claimed are reasonable and that Chesser has
provided no proof of indigency. The Court considers in connection with this issue a trust fund
statement for Chesser’s account from August 31, 2012, to November 11, 2012, showing an
available balance of $157.46 (Doc. 3). The Court further notes Chesser’s continuous
incarceration since that time and his current release date of June 16, 2032. See Inmate Locator,
Bureau of Prisons, https://www.bop.gov/inmateloc (last visited Oct. 3, 2017).
Ordinarily the Clerk of Court taxes costs in favor of the prevailing party on 14 days’
notice. Fed. R. Civ. P. 54(d)(1). Objections may be filed within 14 days of the Clerk’s notice.
Local Rule 54.2. Costs allowed to be taxed are set forth in 28 U.S.C. § 1920. The Court
presumes that a prevailing party is entitled to costs as a matter of course, Krocka v. City of
Chicago, 203 F.3d 507, 518 (7th Cir. 2000), but has the discretion to deny or reduce costs where
warranted, Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). If the Court
reduces or denies costs, it must explain its decision. Krocka, 203 F.3d at 518. Chesser has
objected to taxation of costs within the extension of time allowed by the Court, so his objection
Chesser first objects that the defendants committed misconduct at earlier stages of this
case by “disappearing” or performing other sanctionable conduct. A reduction or denial of costs
may be appropriate where a prevailing party has committed some kind of misconduct. Mother &
Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003). The Court finds that problems with the
defense that occurred earlier in this case were adequately addressed at the time of the
objectionable conduct and do not warrant a reduction in costs.
Chesser also challenges the propriety of the costs claimed because he believes they were
unnecessary expenses. The three depositions, he argues, were connected with a claim he would
have won were it not for a transfer to another institution. The Court overrules this objection.
The depositions were used in this case and are therefore a proper item of costs under 28 U.S.C.
§ 1920(2), which allows as a cost “[f]ees for printed or electronically recorded transcripts
necessarily obtained for use in the case.”
Chesser also objects to the reasonableness of the specific items of travel claimed to
secure David Shiavone’s presence as a witness at trial. The Court has reviewed the itemized
expenses and finds that they are reasonable and consistent with 28 U.S.C. § 1821(c) and (d),
which call for reimbursement to a witness of his actual travel expenses, incidental charges such
as tolls and parking, and a subsistence allowance for overnight stays. Accordingly, such costs
are taxable under 28 U.S.C. § 1920(3) as “[f]ees . . . for . . . witnesses.”
Finally, Chesser invokes his pauper status and litigation skill to justify a fee reduction. A
reduction or denial of costs may be appropriate where a non-prevailing party is indigent and his
suit is not frivolous. See Rivera v. City of Chi., 469 F.3d 631, 634-35 (7th Cir. 2006) (citing
Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983)). In deciding whether
to hold an indigent party liable for costs, the Court should examine the party’s income, assets and
expenses and make a threshold finding whether the losing party is incapable of paying the costs
at the present time or in the future. Rivera, 469 F.3d at 635. The Court should also 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.” Id. The exception to the cost-shifting
presumption for indigent losing parties is narrow, and the burden is on the losing party to show
he fits within the exception. Id. at 636.
Chesser’s 2012 inmate trust fund statement shows his was indigent. The statement
indicates that in 2012 Chesser received minimal payroll payments and a gift from outside the
prison, and that he made modest expenditures, mostly for telephone, electronic mail and small
purchases. Chesser had no expenses for food or shelter. The Court does not believe that his
situation has changed substantially for the better during his period of incarceration since 2012 or
will change substantially for the better before his projected release date in 2032. For these
reasons, the Court finds Chesser is indigent and is unable to pay the full $1,816.79 in costs in this
case now or in the foreseeable future. However, in light of the minimal living expenses he must
pay and his history of some income, the Court finds he will be able to pay some costs without
undue hardship in the near future.
The Court further notes that this action was not frivolous and involved complicated
questions regarding important constitutional rights. The Court believes Chesser’s pursuit of this
action was in good faith even though he did not prevail, but that he should not be completely
relieved of the obligation to pay the defendants’ costs.
For these reasons, the Court OVERRULES Chesser’s objection to costs (Doc. 300) but
will reduce the amount of costs requested to $300.00. This is slightly more than 15% of the costs
requested by the defendants and is roughly equivalent to the amount of money Chesser spent on
telephone and email (Trulincs) services and on purchases during the approximately three-month
period reflected on the first trust fund account statement he submitted when he filed this case
(Doc. 3). The Court believes Chesser will reasonably be able to pay this amount over the next
few years. In 2013 alone, he was able to pay his entire $350 filing fee for this case. Now that he
is no longer subject to the most restrictive conditions at the Administrative Maximum Facility in
Florence, Colorado, he likely has or will soon be assigned a prison job for which he will
probably receive monthly pay similar to the $14.40 per month reflected in his 2012 trust fund
statement. In such circumstances, requiring him to pay $300.00 in costs is not unreasonable.
Therefore, the Court orders an award of costs in the total amount of $300.00 to the defendants.
The Court further DIRECTS the Clerk of Court to enter a judgment of costs accordingly.
DATED: October 11, 2017
IT IS SO ORDERED.
s/ J. Phil Gilbert
J. PHIL GILBERT
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