Chiarappa v. Meyers et al

Filing 140

ORDER denying 134 Motion to deny bill of costs. Signed by Hon. H. Kenneth Schroeder, Jr on 9/30/2014. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WILLIAM CHIARAPPA, 08-B-3680,
Plaintiff,

09-CV-0607(Sr)

v.
MYERS, et al.,
Defendants.

DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this case to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #27.

By Decision and Order entered December 5, 2013, the Court granted
defendants’ motion for summary judgment on plaintiff’s claims of excessive force at the
Gowanda Correctional Facility for failure to exhaust administrative remedies as required
by the Prisoner Litigation Reform Act of 1995 (“PLRA”). Dkt. #131.

On December 18, 2013, defendants filed a bill of costs seeking $303.24
incurred for a transcript of plaintiff’s deposition. Dkt. #133.

By motion, plaintiff asks the Court to deny such costs on the ground that
plaintiff is indigent as evidenced by the Court’s grant of in forma pauperis status and a
current affirmation revealing that plaintiff was incarcerated while awaiting sentencing,

had $50 in his inmate account, no funds in a checking or savings account, and had not
been employed since July of 2013. Dkt. #134. Counsel declares that plaintiff has been
in jail between July of 2012 and at least January of 2013 and then again between
November 2013 until the filing of this motion. Dkt. #137, ¶ 6. Plaintiff also argues that
the public interest in encouraging citizens to assert their constitutional rights should
outweigh defendants’ ability to obtain costs and urges the Court to weigh the burden
that the imposition such costs will place upon plaintiff as compared to the benefit that
payment of such costs will provide to the New York State Department of Corrections
and Community Supervision (“NYSDOCCS”). Dkt. #134.

Defendants challenge plaintiff’s indigent status in light of his retention of
counsel and ability to conduct voluminous discovery and depositions of all five
defendants. Dkt. #135. Defendants also argue that denying an award of costs will
undermine the PLRA’s goal of discouraging frivolous prisoner litigation. Dkt. #135.

In reply, plaintiff’s counsel declares that he undertook representation of
plaintiff pro bono, has paid the expense incurred in prosecuting this action, including
deposition fees, and has received no reimbursement from plaintiff. Dkt. #137. When
counsel became a full time employee of the Western New York Law Center, a nonprofit
legal services corporation that represents individuals free of charge, plaintiff applied for
representation and was approved. Dkt. #137. The agreement between the Western
New York Law Center and plaintiff provides that plaintiff is not required to pay for
attorney time and that costs of litigation will be advanced. Dkt. #137.
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Rule 54(d)(1) of the Federal Rules of Civil Procedure provides that 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. 28 U.S.C. § 1915(f)(1)
provides that judgment may be rendered for costs at the conclusion of an action
proceeding in forma pauperis as in other proceedings. Thus, the award of costs is the
rule, not an exception. Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001).

28 U.S.C. § 1920(2) includes fees for printed or electronically recorded
transcripts necessarily obtained for use in the case as taxable costs. “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.”
See Keesh v. Smith, No. 04-CV-779, 2008 WL 2242622, at * 2 (N.D.N.Y. May 29,
2008). In the instant case, the Court’s Decision and Order on defendants’ motion for
summary judgment cited to plaintiff’s deposition testimony, which was attached to
defendants’ motion papers. Dkt. #124-1 & Dkt. #131.

The losing party bears the burden of demonstrating that costs should not
be imposed because, for example, of misconduct by the prevailing party; the public
importance of the case; the difficulty of the issues; or the losing party’s limited financial
resources. Whitfield , 241 F.3d at 270. Although a district court retains discretion to
deny costs on account of a losing party’s lack of financial resources, indigency, by itself,
does not automatically preclude an award of costs. Id. “Requiring prisoners to make
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economic decisions about filing lawsuits does not deny access to the courts; it merely
places the indigent prisoner in a position similar to that faced by those whose basic
costs of living are not paid by the state.” Id. at 273 (internal quotation omitted).
Moreover, good faith and the absence of frivolous claims, by themselves, do not require
a district court deny costs. Id. at 272-73.

Plaintiff has not met his burden of demonstrating that costs should not be
imposed in this action. If costs were waived simply because a plaintiff proceeded in
forma pauperis, 28 U.S.C. § 1915(f) would have no effect. To the extent that he
remains incarcerated, the PLRA will allow him to pay his costs over time. See 28
U.S.C. § 1915(f)(2)(B). To the extent that plaintiff is no longer incarcerated, he proffers
no basis to believe that he is incapable of earning income to pay the reasonable costs
of his deposition transcript. Accordingly, plaintiff’s motion (Dkt. #134), to deny the bill of
costs seeking $303.24 incurred for a transcript of plaintiff’s deposition is denied.

SO ORDERED.

DATED:

Buffalo, New York
September 30, 2014

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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