Green v. Venettozzi et al

Filing 155

DECISION AND ORDER: ORDERED that Defendants' motion for a Bill of Costs is GRANTED. ORDERED that the Bill of Costs submitted by Defendants (Dkt. No. 145 ) is approved in its entirety and Defendants shall recover a total of $1,198.48. ORDERED that Plaintiff's letter motion (Dkt. No. 153 ) is DENIED. ORDERED that the Clerk of the Court shall send Plaintiff a copy of his letters (Dkt. Nos. 153 and 154), a form complaint available for use in Section 1983 actions, an application to proceed in forma pauperis, a copy of the Docket Sheet for this action, and a Photocopy Request form. Signed by Judge Brenda K. Sannes on 9/19/19. {served as directed}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

SHAWN GREEN,
Plaintiff,
v.

9:14-CV-1215
(BKS/CFH)

D. VENETTOZZI, et. al.,
Defendants.

APPEARANCES:
SHAWN GREEN
97-A-0801
Plaintiff, pro se
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
HON. LETITIA JAMES
New York State Attorney General - Albany
The Capitol
Albany, NY 12224
Attorney for Defendants

DENISE P. BUCKLEY, ESQ.
Ass't Attorney General

BRENDA K. SANNES
United States District Judge
DECISION AND ORDER
I.

INTRODUCTION
In a Decision and Order filed on February 14, 2019 (the "February Order"), the

Report-Recommendation of Magistrate Judge Hummel was accepted and adopted in its
entirety; the motion for summary judgment filed on behalf of Defendants was granted and
Plaintiff's claims were dismissed with prejudice. Dkt. No. 143. Judgment in favor of
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Defendants was duly entered by the Clerk of the Court.1 Dkt. No. 144
Presently before the Court for consideration is Defendants' motion for a Bill of Costs
pursuant to Rule 54(d) of the Federal Rules of Civil Procedure. Dkt. No. 145. On July 22,
2019 and August 5, 2019, Plaintiff, who is currently confined at Upstate Correctional Facility
("Upstate C.F."), filed letters advising the Court that he could not submit opposition to the
motion because his property was confiscated. Dkt. Nos. 153 and 154. Plaintiff also
requested a "Court Order" and a complete copy of the "Court's Docket". Id.
II.

BILL OF COSTS
In accordance with Rule 54(d), prevailing parties may recover certain allowable,

reasonable, and necessary costs. The Supreme Court has construed the term "cost" in this
context to include only the specific items enumerated in 28 U.S.C. § 1920. Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). The six categories of expenses which
may be taxed as costs are:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of
any materials where the copies are necessarily obtained for
use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
28 U.S.C. § 1920. On a proper showing by the losing party, otherwise allowable costs may
be denied by the district court because of misconduct by the prevailing party, the public

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Plaintiff's appeal from that Judgment was stayed by the Second Circuit pending the resolution of
motions. Dkt. No. 149.

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importance of the case, the difficulty of the issues, or the losing party's limited financial
resources. Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001). The decision to award
costs to a prevailing party under Rule 54(d)(1) rests within the sound discretion of the district
court. Id. at 269.
The Bill of Costs submitted by Defendants seeks to recover a total of $1,198.48 which
includes the costs of Plaintiff's deposition and the fees for exemplification and copies of
papers necessarily obtained for use in the case. Dkt. No. 145.
Generally speaking, the reasonable costs of transcribing depositions are properly
taxed in favor of the prevailing party. See Whitfield, 241 F.3d at 270. "When a deposition
transcript is used or received in evidence at trial, or is submitted to the court for consideration
of a motion for summary judgment, costs are properly allowed, without regard to whether the
deposition is specifically relied on as a basis for the decision." McEachin v. Goord, No.
9:01-CV-0259 (GJD), 2007 WL 1571981, at *1 (N.D.N.Y. May 25, 2007).
In this case, Defendants elicited Plaintiff's testimony during the discovery period and
annexed the transcript as an exhibit to the motion for summary judgment. Dkt. No. 121-8.
The Court finds that the deposition was necessarily obtained for use in the case and is
properly allowed as a cost recoverable by Defendants.
Defendants also seek to recover the cost of "one (1) copy of discovery (one hard copy
produced to plaintiff totaling 1,404 pages) and one (1) copy of Plaintiff's deposition transcript
totaling 169 pages." Dkt. No. 145 at 3. The items are identified as a Hearing Packet,
Certified Transcript of Hearing, grievance records, requests for special accommodations,
correspondence with Health Services, and medical records. Id. at 10-11. "Courts interpret

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[28 U.S.C. § 1920(4)] to include photocopying charges for discovery." Phillips v. Allen, No.
07 C 666, 2011 WL 1884558, at *2 (N.D. Ill. May 6, 2011) (citing Kulumani v. Blue Cross
Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000)). Here, counsel " provided sufficient
information regarding the purpose of the copies" and the Court finds that the copies were
"necessary [as it] relate[s] to the 'initial disclosure requirements.' " See U.S. ex rel. Cullins v.
Astra, Inc., No. 09-60696-CIV, 2010 WL 3008833, at *5 (S.D. Fla. July 28, 2010)
Defendants' counsel has provided the Court with exhibits to the bill of costs and
provided detail as to the quantity and cost per page of the items copied at twenty-five cents
per page – a rate which the court finds to be reasonable.
In accordance with the above, the Court directs the Clerk to tax the following costs in
connection with the Judgment entered in this action: Fees for Deposition ($805.23) and Fees
for Copies ($393.25) for a total of $1,198.48.
III.

Remaining Requests for Relief
Plaintiff seeks an "urgent Court Order" directing Donald G. Uhler, the Superintendent

at Upstate C.F., to provide Plaintiff with access to "all" of his property. Dkt. No. 153.
Plaintiff's issues related to access to his property at Upstate C.F., see Dkt. Nos. 153 and 154,
has no apparent relationship to this action, and seeks no relief available from this Court
herein. Plaintiff is advised that this action is closed; further submissions in this case are not
authorized. Insofar as Plaintiff may be requesting that this Court construe his letter as a
Complaint and commence a new action on his behalf, that request is denied. Nevertheless,
the Clerk of the Court is directed to send Plaintiff a copy of his letters (Dkt. Nos. 153 and
154), a form complaint available for use in Section 1983 actions, and an application to

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proceed in forma pauperis.
In his correspondence, Plaintiff also requests an "estimate as to [the] number of pages
each District Court's Docket consist[s] of as well as cost for a complete copy thereof."2 Dkt.
No. 154.
28 U.S.C. § 1915, which governs in forma pauperis proceedings, does not state that
indigent parties are entitled to complimentary copies of the materials contained in a court’s
files or any other file. "[T]he granting of in forma pauperis status does not shift the entire
financial burden of litigation either to the Court or to the opposing parties. . . a party is
required to pay the costs of discovery, including the costs of obtaining copies of requested
documents, despite the fact that he has been found to be indigent." Orraca v. Lee, No. 9:04CV-1249 (DNH/DRH), 2007 WL 81921, at *1 (N.D.N.Y. Jan. 9, 2007); Madison v. Hoey, 2006
WL 2265016, at *3 (N.D.N.Y. Aug. 4, 2006) (indigent status does not entitle a party to free
copies but instead must bear his or her own costs of litigation). Local Rule 5.4(a) is clear that
in forma pauperis status does not relieve a party of the obligation to pay all other fees for
which that party is responsible regarding the action, including but not limited to copying
and/or witness fees. Therefore, Plaintiff’s request for free copies of documents is denied. If
Plaintiff wishes to obtain copies of filings from the Court, the Clerk will compute the amount
Plaintiff must prepay, at a cost of $0.50 per page, in order to obtain such copies. The Court
directs the Clerk to provide a courtesy copy of the docket sheet for this action to Plaintiff
together with a "Photocopy Request Form".
IV.

CONCLUSION

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Plaintiff refers to himself as "Plaintiff/Petitioner" in "three cases currently pending" in this Court.
Dkt. No. 154 at 1.

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WHEREFORE, it is hereby
ORDERED that Defendants' motion for a Bill of Costs is GRANTED; and it is further
ORDERED that the Bill of Costs submitted by Defendants (Dkt. No. 145) is approved
in its entirety and Defendants shall recover a total of $1,198.48; and it is further
ORDERED that Plaintiff's letter motion (Dkt. No. 153) is DENIED; and it is further
ORDERED that the Clerk of the Court shall send Plaintiff a copy of his letters (Dkt.
Nos. 153 and 154), a form complaint available for use in Section 1983 actions, an application
to proceed in forma pauperis, a copy of the Docket Sheet for this action, and a Photocopy
Request form; and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties.
Dated: September 19, 2019

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