Knox v. Butler et al

Filing 144

ORDER: Plaintiff's Motion to Vacate the taxation of costs (Doc. 139 ) is DENIED. Plaintiff's Motion for Leave to Appeal in Forma Pauperis (Doc. 141 ) is GRANTED. Based on his trust fund account statements, IT IS HEREBY ORDERED that Plaint iff shall make a onetime payment of $2.93 toward the appellate docketing fee, and is granted leave to proceed IFP with respect to the remainder of the fee. Plaintiff is DIRECTED to pay the $2.93 to the Clerk of Court upon receipt of this Me morandum and Order. Payment shall bemailed to: Clerk of the Court, United States District Court for the Southern District of Illinois, 750 Missouri Ave., East St. Louis, Illinois 62201. The Clerk is DIRECTED to mail a copy of this Order and the certification form tothe Trust Fund Officer at Menard Correctional Center. The Clerk of Court is further DIRECTED to transmit a copy of this order to the Court of Appeals. Signed by Judge David W. Dugan on 1/6/21. (bps)

Case 3:17-cv-00494-DWD Document 144 Filed 01/06/21 Page 1 of 4 Page ID #1500

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TED KNOX
Plaintiff,
vs.
WARDEN BUTLER, et al.,
Defendants.

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Case No. 17-CV-494-DWD

MEMORANDUM AND ORDER
Plaintiff Ted Knox, an inmate of the Illinois Department of Corrections currently
incarcerated at Menard Correctional Center (“Menard”), filed this action pursuant to 42
U.S.C. § 1983, alleging violations of his constitutional rights. The case is before the Court
on his Motion to Vacate the taxation of costs in this matter (Doc. 139) and Motion for
Leave to Appeal in Forma Pauperis (Doc. 141).
Two Motions for Summary Judgment filed by Defendants Walters (Doc. 75) and
Wexford Health Sources (Doc. 77) were granted and the case was dismissed. (Doc. 130).
Seven days after judgment was entered, Defendant Walters filed a Bill of Costs. (Doc.
132). Plaintiff was informed that any objections to these costs needed to be filed on or
before December 8, 2020. (Doc. 133). No objection was filed, and costs were taxed on
December 10, 2020. (Doc. 138).
Plaintiff filed a Notice of Appeal on December 2, 2020, challenging the grant of
summary judgment. (Doc. 134). He filed another Notice of Appeal on December 28, 2020,
adding challenges to several of the Court’s interlocutory orders. (Doc. 140).
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Motion to Vacate Taxation of Costs
The Federal Rules of Civil Procedure provide:
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.... The clerk may tax costs on 14 days' notice. On motion served within
the next 7 days, the court may review the clerk's action.
FED. R. CIV. P. 54(d)(1). Plaintiff admits that he did not serve an objection to the Bill of
Costs within the time mandated by the Court. However, he asserts that this should be
excused because he interpreted the Court of Appeals’ PLRA Fee Notice and Order (Doc.
137-2, stating that all other proceedings in the appeal were suspended pending
assessment and payment of filing fees) as staying assessment of costs. Plaintiff did file
the Motion to Vacate within the seven-day review period prescribed by the Federal Rules.
Regardless of whether Plaintiff’s untimeliness is excusable or not, the Court finds
no basis to vacate the award of costs. Rule 54(d)(1) provides that costs other than
attorney’s fees should be allowed to a prevailing party in the absence of a statute, rule or
ruling otherwise. Rule 54 gives prevailing parties a “strong presumptive entitlement to
recover costs” other than attorneys' fees. Perlman v. Zell, 185 F.3d 850, 858 (7th Cir. 1999);
Luckey v. Baxter Healthcare Corp., 183 F.3d 730 (7th Cir. 1999). The specific categories of
costs which may be taxed are set out in 28 U.S.C. § 1920, including “[f]ees for printed or
electronically recorded transcripts necessarily obtained for use in the case.”
Walters was clearly the prevailing party, having obtained judgment in her favor
on all claims against her. The costs she claimed— $581.45 paid to the court reporter for

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Plaintiff’s deposition and transcript— are within the categories allowed by 28 U.S.C. §
1920 and are reasonable under normal rates for such litigation services.
Plaintiff argues that costs should only be shifted to a losing party if the case was
“totally unfounded, frivolous or otherwise unreasonable.” Hughes v. Rowe, 449, U.S. 5,
14-15 (1980). However, that applies only to awards of attorney’s fees, not other costs as
set forth in Section 1920. The costs taxed in this case were not attorney’s fees and are
therefore presumptively proper. As such, the Court finds no reason to vacate the taxation
of costs.
In Forma Pauperis
A federal court may permit a party to proceed on appeal without full pre-payment
of fees provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. §
1915(a)(1) & (3); FED. R. APP. P. 24(a)(3)(A). See also Walker v. O'Brien, 216 F.3d 626, 63031 (7th Cir. 2009). An appeal is taken in good faith if it seeks review of an issue that is
not clearly frivolous, meaning that a reasonable person could suppose it to have at least
some legal merit. Walker, 216 F.3d at 632). A motion to proceed IFP must be supported
by an affidavit that shows the party's inability to pay or to give security for fees and costs,
claims an entitlement to redress, and states the issues that the party intends to present on
appeal. See FED. R. APP. P. 24(a)(1).
Plaintiff’s affidavit and attached trust account record demonstrate that he
continues to qualify as indigent for IFP purposes. (Doc. 141). Further, although some of
the issues raised in Plaintiff’s second Notice of Appeal may qualify as frivolous, the Court

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cannot certify that the appeal as a whole is not taken in good faith. As such, Plaintiff will
be permitted to proceed IFP.
Disposition
Plaintiff’s Motion to Vacate the taxation of costs (Doc. 139) is DENIED. Plaintiff’s
Motion for Leave to Appeal in Forma Pauperis (Doc. 141) is GRANTED. Based on his
trust fund account statements, IT IS HEREBY ORDERED that Plaintiff shall make a onetime payment of $2.93 toward the appellate docketing fee, and is granted leave to proceed
IFP with respect to the remainder of the fee. Plaintiff is DIRECTED to pay the $2.93 to
the Clerk of Court upon receipt of this Memorandum and Order. Payment shall be
mailed to: Clerk of the Court, United States District Court for the Southern District of
Illinois, 750 Missouri Ave., East St. Louis, Illinois 62201.
Plaintiff is ADVISED that a litigant who proceeds IFP still owes the fees. If he
wins, the fees are shifted to the adversary as part of costs; if he loses, the fees are payable
like any other debt. Thomas v. Zatecky, 712 F.3d 1004, 1005 (7th Cir. 2013).
The Clerk is DIRECTED to mail a copy of this Order and the certification form to
the Trust Fund Officer at Menard Correctional Center. The Clerk of Court is further
DIRECTED to transmit a copy of this order to the Court of Appeals.
IT IS SO ORDERED.
DATED: January 6, 2021
__________________________
DAVID W. DUGAN
United States District Judge

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