Brisman v. Graham et al
Filing
110
ORDER granting 106 Motion for Bill of Costs in the amount of $1,474.24. Signed by Judge Brenda K. Sannes on 10/4/2019. (Copy served on Plaintiff via regular mail)(rjb, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JASON BRISMAN,
Plaintiff,
9:15-CV-00712 (BKS/DEP)
v.
AARON McCABE and ANTHONY VOLPE,
Defendants.
Appearances:
For Plaintiff:
Abby R. Perer
Syracuse University
Office of General Counsel
900 S. Crouse Avenue
Crouse-Hinds Hall, Suite 513
Syracuse, NY 13244
For Defendants:
Letitia James
Attorney General of the State of New York
Denise P. Buckley
Assistant Attorney General
The Capitol
Albany, NY 12224
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.
INTRODUCTION
In this action, Plaintiff Jason Brisman asserted a First Amendment retaliation claim under
42 U.S.C. § 1983 against Defendants Aaron McCabe and Anthony Volpe. (Dkt. No. 1).1 After a
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Plaintiff’s original complaint asserted various claims against forty-five employees of the Department of Corrections
and Community Supervision. (Dkt. No. 1; Dkt. No. 5, at 4). All but one of Plaintiff’s claims was dismissed prior to
trial. (Dkt. Nos. 45, 63). One of Plaintiff’s excessive force claims was dismissed based on a failure to exhaust
two-day trial in February 2019, the jury returned a verdict finding that Plaintiff failed to prove
his claim by a preponderance of the evidence. (Dkt. No. 101). On March 26, 2019, Defendants
filed a motion for a bill of costs in the amount of $1,474.24 under Rule 54(d) of the Federal
Rules of Civil Procedure. (Dkt. No. 106). Plaintiff opposes the motion. (Dkt. No. 107). For the
following reasons, Defendants’ motion is granted.
II.
DISCUSSION
Rule 54(d)(1) of the Federal Rules of Civil Procedure states in relevant part that,
“[u]nless a federal statute, these rules, or a court order provides otherwise, costs . . . should be
allowed to the prevailing party.” “[T]he losing party has the burden to show that costs should not
be imposed.” Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001). It is undisputed that
Defendants were the prevailing party in this case. Plaintiff has not disputed the propriety of the
Defendants’ request for costs totaling $1,474.24 for witness fees, copies, and the transcript of the
Plaintiff’s deposition. See 28 U.S.C. § 1920. Plaintiff asks this Court to exercise discretion not to
impose costs because Plaintiff brought a non-frivolous “meritorious claim” and is indigent and
proceeding in forma pauperis. (Dkt. No. 107). Plaintiff also opposes an award of costs because
the judgment does not direct an award of costs.
A.
Indigency
“As a general matter a district court may deny costs on account of a losing party’s
indigency, but indigency per se does not automatically preclude an award of costs.” Whitfield,
241 F.3d at 270. Further, as a matter of discretion, a court may order the payment of costs by a
party proceeding in forma pauperis. See Feliciano v. Selsky, 205 F.3d 568, 572 (2d Cir. 2000).
The decision is “informed by any factor the court deems relevant, including the purpose of the
administrative remedies after an evidentiary exhaustion hearing where Magistrate Judge David Peebles found
Plaintiff’s testimony not credible. (Dkt. No. 61, at 10-11).
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forma pauperis statute, the history of the party as litigator, good faith and the actual dollars
involved.” Id. (internal quotation marks omitted). Plaintiff has not submitted any evidence
showing that he would lack the financial resources to pay the modest bill of costs at the rate
specified by DOCCS Directive No. 2788. Contra Williams v. Arctic Cat, Inc., No. 11-cv-445,
2014 WL 4105286, at *2, 2014 U.S. Dist. LEXIS 115502, at *7 (N.D.N.Y. Aug. 20, 2014)
(granting reduction of costs where plaintiffs submitted proofs that they lacked financial resources
to pay bill of costs).
B.
PLRA
Plaintiff also argues that the Court should deny Defendants’ motion because the judgment
includes no direction for payment of costs. (Dkt. No. 107, at 1–2). See Feliciano v. Selsky, 205
F.3d 568, 572 (2d Cir. 2000), and Dolberry v. Jakob, No. 11-cv-1018, 2019 WL 1396975, at *4,
2019 U.S. Dist. LEXIS 53182, at *11 (N.D.N.Y. Mar. 28, 2019). In Feliciano, the Second
Circuit granted an unsuccessful prisoner-appellant’s motion to disallow the costs of printing the
appellee’s brief because the Circuit’s summary order of affirmance did not order payment of
costs. 205 F.3d at 572. The Second Circuit recognized that courts have authority, under the
PLRA to assess costs against an indigent prisoner. Id. (citing 28 U.S.C. § 1915(f)(2)(A), (B)). It
found, however, in the context of Rule 39(a) of the Federal Rules of Appellate Procedure, that
the “portion of § 1915 that provides for the payment of full costs in the event that the judgment
requires it,” fell “within the ‘law provides otherwise’ language of Fed. R. App. P. 39(a), which
allows costs to be taxed against appellants when the judgment is affirmed ‘unless the law
provides or the court orders otherwise.’” Id. (citing 28 U.S.C. § 1915(f)(2)(A)) 2; cf. Whitfield,
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At least one other Circuit has declined to follow the Second Circuit’s analysis in Feliciano. In Skinner v. Govorchin,
the plaintiff brought a § 1983 complaint alleging that the defendants had wrongfully garnished funds from his prison
account in connection with the Sixth Circuit’s award of costs in a prior action. 463 F.3d 518, 520 (6th Cir. 2006). The
plaintiff, citing Feliciano, argued, inter alia, that the judgment in the prior case, which was “entered later in connection
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241 F.3d at 268, 274 (noting that there is a “simply remedy” for appellate printing costs that had
been imposed by the Second Circuit, following its summary order of affirmance and mandate
“silent as to costs”: under Fed. R. App. 39(d)(3) the costs may be added to the mandate),
abrogated on other grounds by Bruce v. Samuels, 136 S. Ct. 627 (2016). In Feliciano, although
the Circuit denied costs, noting that “the judgment entered by the Clerk of this Court under the
provisions of Fed. R. App. P. 36 contains no provision for costs,” it observed that “[t]his in no
way detracts from the ability of a court to require, as a matter of discretion, that the indigent
prisoner pay the costs, or some part of them.” Id. The Circuit further indicated that: “Whether
assessed by a district court or by this court, the discretionary imposition of costs should be
informed by any factor the court deems relevant, including ‘the purpose of the forma pauperis
statute, the history of the party as litigator, good faith and the actual dollars involved.’” Id.
(quoting 16A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3985 at 710 n.8
(1999)).
Although the Federal Appellate Rule cited in Feliciano for awarding costs to a successful
appellant (Fed. App. R. 39) is analogous to the rule providing for costs for a prevailing party in
the district court (Fed. R. Civ. P. 54), Dolberry is the only other case Plaintiff cited, or the Court
could find, where a trial court considered as a basis for denying costs, the fact that the judgment
with the issuance of the mandate” under Fed. R. App. P. 39, did not include an award of costs, and thus violated the
PLRA’s requirement that an award of costs be included in the judgment. Id. at 521. The Sixth Circuit, however, was
not “prepared to follow Skinner, accompanied by Feliciano, down this road.” Id. It explained that “while Rule 39(a)
acknowledges that another ‘law’ could ‘provide[ ] otherwise’ when it comes to the procedures for taxing costs
established by Rule 39(d), the PLRA does not seem to be such a law.” Id. at 521–22. It noted that the “operative
section of the PLRA,” § 1915(f)(1), “begins by saying, ‘Judgment may be rendered for costs at the conclusion of the
suit or action as in other proceedings,’” and found that the “‘as in other proceedings’ language suggests that the PLRA
does not mean to alter the traditional mechanics for awarding costs—set forth in Rule 39(d)—but to establish rules
unique to indigent prisoners for paying such costs.” Id. at 522 (quoting 28 U.S.C. § 1915(f)(1)) (emphasis in original).
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did not direct the payment of costs.3 2019 WL 1396975, at *4, 2019 U.S. Dist. LEXIS 53182, at
*11. The Court notes that under 28 U.S.C. 1915(f)(1), “[j]udgment may be rendered for costs at
the conclusion of the suit or action as in other proceedings . . . .” As Defendants argue, here the
Court is considering whether to award costs as it does in other proceedings: in accord with
N.D.N.Y. Local Rule 54.1(a), costs are not taxed until after the entry of judgment, and after the
party entitled to recover costs files a verified bill of costs. A determination regarding costs is thus
not made absent a request for costs. The Court does not interpret Feliciano to preclude an award
of costs in accord with this district’s standard procedures.
III.
CONCLUSION
The Court has reviewed the substantive and procedural history of this case, and carefully
considered the parties’ arguments. Considering all of the factors in this case, the Court finds the
imposition of costs warranted. For these reasons, it is hereby
ORDERED that Defendants’ motion for a bill of costs in the amount of $1,474.24 (Dkt.
No. 106) is GRANTED.
IT IS SO ORDERED.
Dated: October 4, 2019
Syracuse, New York
3
Defendants argue that Plaintiff is relying on dicta in Dolberry. (Dkt. No. 108, at 2). The Court disagrees. The district
court in Dolberry did appear to rely, as one of its reasons for denying costs, the fact that the “judgment did not direct
[the plaintiff] to provide for the payment of costs.” 2019 WL 1396975, at *4, 2019 U.S. Dist. LEXIS 53182, at *11.
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