(PC) Herrera v. Ahlin ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN HERRERA, Case No. 1:14-cv-00164-LJO-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO STAY ENFORCEMENT OF BILL OF 13 v. COSTS PENDING APPEAL 14 JACOB REDDING, (ECF No. 79) 15 Defendant. 16 17 Plaintiff Ruben Herrera is a civil detainee proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on February 6, 19 2014. (ECF No. 1.) On March 20, 2019, the Court denied Plaintiff’s cross-motion for summary 20 judgment, granted Defendant Jacob Redding’s motion for summary judgment, and entered 21 judgment in favor of Defendant. (ECF No. 68.) 22 On April 2, 2019, Defendant Redding submitted a bill of costs seeking $498.37 for costs 23 in defending this action. (ECF No. 70.) 24 On April 5, 2019, Plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeals. 25 (ECF No. 72.) 26 On August 9, 2019, the Clerk of Court taxed costs in the amount of $277.35 against 27 Plaintiff. (ECF No. 76.) 28 /// 1 On October 15, 2019, Plaintiff filed a motion for reconsideration of the Court’s order to 2 pay bill of costs for electronically recorded transcripts. (ECF No. 77.) On November 13, 2019, 3 the Court denied Plaintiff’s motion for reconsideration. (ECF No. 78.) 4 Currently before the Court is Plaintiff’s “notice of motion for objection to order of the 5 Courts (sic) recomendation (sic) for bill of cost while the appeal is pending[, and] Petitioner[’s] 6 request for a stay until the appeal [is] final[,]” filed on November 25, 2019. (ECF No. 79.) The 7 Court construes Plaintiff’s motion as a motion to stay enforcement of the bill of costs pending 8 resolution of Plaintiff’s appeal. 9 “A stay is not a matter of right, even if irreparable injury might otherwise result. It is 10 instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the 11 circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 433 (2009) (internal 12 quotation marks and citation omitted); Lasic v. Moreno, No. 2:05-cv-0161-MCE-DAD, 2007 WL 13 4180655, at *1 (E.D. Cal. Nov. 21, 2007) (““It is within the Court’s discretion to proceed or defer 14 the taxation of costs while an appeal on the merits is pending.”). The question of whether a stay 15 pending appeal is warranted requires consideration of four factors: “(1) whether the stay applicant 16 has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant 17 will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure 18 the other parties interested in the proceeding; and (4) where the public interest lies.” Id. at 434. 19 The U.S. Supreme Court has held that the first two factors are the most important. Id. 20 Here, Plaintiff contends that the Court should stay enforcement of the bill of costs on three 21 grounds. First, Plaintiff argues that the costs should be stayed because, due to the pending appeal, 22 the Defendants are not yet the prevailing party in this action. Second, Plaintiff argues that the 23 costs should be stayed because he never received a copy of any printout stating the full cost of the 24 electronically recorded transcripts. Third, Plaintiff argues that the costs should be stayed because 25 he is totally indigent and financially unable to pay for the costs. 26 However, initially, Plaintiff has failed to make a strong showing that he is likely to 27 succeed on the merits of his appeal. Id. (“It is not enough that the chance of success on the merits 28 be ‘better than negligible. … [M]ore than a mere possibility of relief is required.” (internal 1 citation and quotation marks omitted)). Further, while Plaintiff alleges that he is indigent and 2 does not have the funds to pay the costs, Plaintiff has failed to establish that he will suffer 3 irreparable harm if a stay is not granted. Finally, the fact that Plaintiff was never provided with a 4 copy of a document stating the full cost of the transcripts is not a sufficient basis to stay 5 enforcement of costs. 6 Therefore, Plaintiff’s motion to stay enforcement of bill of costs pending appeal, (ECF 7 No. 79), is HEREBY DENIED. 8 IT IS SO ORDERED. 9 10 Dated: December 5, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28