(PC) Garcia v. Moreno ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LENIN GARCIA, ) Case No.: 1:18-cv-00014-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER REGARDING DEFENDANTS’ BILL 13 v. ) OF COSTS 14 E. MORENO, et al., ) (ECF No. 69) ) 15 Defendants. ) ) 16 ) 17 On November 1, 2018, the undersigned issued Findings and Recommendations recommending 18 that Defendants’ motion for summary judgment for failure to exhaust the administrative remedies be 19 denied, without prejudice. (ECF No. 39.) 20 On April 4, 2019, the District Judge adopted the Findings and Recommendations. (ECF No. 21 46.) 22 On April 23, 2019, the undersigned set an evidentiary hearing pursuant to Albino v. Baca, 747 23 F.3d 1162 (9th Cir. 2014) in order to resolve the factual dispute as to whether Plaintiff exhausted the 24 administrative remedies. (ECF No. 47.) 25 An evidentiary hearing was held on May 15, 2019. On January 29, 2020, the undersigned 26 issued Findings and Recommendations recommending that this action be dismissed, without prejudice, 27 for Plaintiff’s failure to exhaust the administrative remedies. (ECF No. 53.) 28 /// 1 On October 29, 2020, the District Judge adopted the Findings and Recommendations and 2 dismissed the action, without prejudice, for Plaintiff’s failure to exhaust the administrative remedies. 3 (ECF No. 67.) 4 On November 12, 2020, Defendants submitted a bill of costs.1 (ECF No. 69.) 5 On November 30, 2020, Plaintiff filed a “Motion to Retax Cost Pursuant to Federal Rule of 6 Civil Procedure 54,” which the Court construes as an opposition to the bill of costs. (ECF No. 74.) 7 I. 8 LEGAL STANDARD 9 Federal Rule of Civil Procedure 54(d) authorizes courts to award costs to the “prevailing party” 10 in federal actions. There is a presumption in favor of awarding costs to the prevailing party, and a 11 district court following the presumption need not specify its reasons for doing so. Save Our Valley v. 12 Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). However, the court may elect not to award costs 13 where the party is indigent or where other compelling circumstances exist. Escriba v. Foster Poultry 14 Farms, Inc., 743 F.3d 1236, 1247-48 (9th Cir. 2014). The losing party must demonstrate why costs 15 should not be awarded. Nat’l Info. Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1471-72 (9th Cir. 1995), 16 overruled on other grounds, Ass’n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 17 592-93 (9th Cir. 2000). “Appropriate reasons for denying costs include: (1) the substantial public 18 importance of the case, (2) the closeness and difficulty of the issues in the case, (3) the chilling effect 19 on future similar actions, (4) the plaintiff’s limited financial resources, and (5) the economic disparity 20 between the parties.” Id. This list is not exhaustive, but rather a starting point for analysis. Escriba, 21 743 F.3d at 1248. 22 However, “a district court deviates from normal practice when it refuses to tax costs to the 23 losing party, and that deviation triggers the requirement to specify reasons.” Save Our Valley, 335 24 F.3d at 945 (internal quotation marks omitted). Thus, “it is incumbent upon the losing party to 25 demonstrate why the costs should not be awarded.” Stanley v. Univ. of S. California, 178 F.3d 1069, 26 1 Orders concerning the award of costs under Federal Rule of Civil Procedure 54 are non-dispositive motions which come 27 within the scope of Rule 72(a) and 28 U.S.C. § 636(b)(1)(A). Cf. United States ex rel. Doe v. Biotronik, Inc., No. 2:09-cv- 3617-KJM-EFB, 2015 WL 6447489, at *6 (E.D. Cal. Oct. 23, 2015) (recognizing that a motion for attorneys’ fees under 28 1 1079 (9th Cir. 1999). Moreover, the Ninth Circuit has held “a district court need not give affirmative 2 reasons for awarding costs; instead, it need only find that the reasons for denying costs are not 3 sufficiently persuasive to overcome the presumption in favor of an award.” Save Our Valley, 335 F.3d 4 at 945. However, the Ninth Circuit has explained that “[d]istrict courts should consider the financial 5 resources of the plaintiff and the amount of costs in civil rights cases.” Stanley, 178 F.3d at 1079. 6 The costs that may be taxed are those enumerated in 28 U.S.C. § 1920. See Alflex Corp. v. 7 Underwriters Lab., Inc., 914 F.2d 175 (9th Cir. 1990) (per curiam) (citing Crawford Fitting Co. v. J.T. 8 Gibbons, Inc., 482 U.S. 437, 441-42 (1987) ). Section 1920 lists “[f]ees for printed or electronically 9 recorded transcripts necessarily obtained for use in the case” as a taxable cost. 28 U.S.C. § 1920(2). 10 II. 11 ANALYSIS 12 Here, Defendants request only $1,071.85 the cost of the evidentiary hearing transcript. No 13 other costs or expenses were requested. Plaintiff argues costs should not be imposed because he is 14 currently indigent and he pursued this action in good faith. (ECF No. 74 at 3-4.) In consideration of 15 the Ninth Circuit’s admonition, the Court has considered both the financial resources of Plaintiff and 16 the requested amount of costs and finds that costs shall be imposed because Plaintiff has not shown 17 that this is anything but an ordinary case. 18 Although the Court found a dispute of fact as to whether Plaintiff exhausted the administrative 19 remedies that could not be resolved by way of motion for summary judgment, Plaintiff did not prevail 20 after the Court conducted an evidentiary hearing on the issue. Because Plaintiff filed objections to the 21 Findings and Recommendations and summarized testimony at the hearing, Defendants requested a 22 copy of the transcript of the evidentiary hearing to file a response thereto. (ECF Nos. 58, 59.) 23 Defendants filed their response on April 29, 2020, which included citations to the evidentiary hearing 24 transcript. (ECF No. 63.) Based on a review of the record, the case was neither difficult nor close, 25 and Defendants did not act in bad faith in litigating the issue of exhaustion of the administrative 26 remedies. As stated by the District Judge, “[o]ther than expressing his own theories about what he 27 believes may have happened with his inmate appeals, plaintiff has offered no evidence or corroboration for 28 his claim that he never received the responses to his inmate appeals or that his inmate appeals were never 1 processed, despite the magistrate judge having held an Albino hearing and provided plaintiff ample 2 opportunity to prepare for and present evidence at that evidentiary hearing.” (ECF No. 67, Order at 5:3-8) 3 (citation omitted). 4 Further, Plaintiff has not demonstrated how the costs of the transcript in this instance would 5 have a chilling effect on potential civil rights plaintiffs. See Williams v. Gore, No. 15-CV-0654-AJB,- 6 PCL, 2017 WL 4960220, at *3 (S.D. Cal. Nov. 1, 2017) (concluding that $3,119.58 in costs “is not so 7 excessive as to serve as an inappropriate threat to discourage serious civil rights claims”); Kidd v. 8 Pacific Bell Telephone Co., No. 11cv1512 L(MDD), 2013 WL 2146924, at *2 (S.D. Cal. May 16, 9 2013) (“The amount of costs [of $5,147.23] sought is reasonable and not exorbitant. Therefore, the 10 suggestion that an award of costs would chill further civil rights litigation is not persuasive in this 11 instance.”); compare with Ass’n of Mexican-Am. Educators, 231 F.3d at 592-93 (affirming the district 12 court’s denial of $216,443.67 in costs to a prevailing defendant because the extraordinarily high” costs 13 “might have the regrettable effect of discouraging potential [civil rights] plaintiffs”). Indeed, the 14 Court finds any chilling effect to be minimal given the law clearly establishes that exhaustion of the 15 administrative remedies must be done prior to filing suit. See 42 U.S.C. § 1997e(a); see also Ross v. 16 Blake, __ U.S. __ 136 S.Ct. 1850 (2016). While Plaintiff may currently have limited funds in his trust 17 account, he paid the $400.00 filing fee for this action, and as of November 9, 2020, he had $37.35 in 18 his account. (ECF No. 74 at 6.) The Court will apportion the payment of costs to be withdrawn in 19 monthly installments equaling “20 percent of the preceding month’s income credited to the prisoner’s 20 account,” so long as the balance before the monthly deduction is greater than $10. See 28 U.S.C. § 21 1915(b)(2), (f)(2)(B). This procedure “will ensure that Plaintiff is not completely stripped of the 22 means to meet his basic needs.” Duvigneaud v. Garcia, No. 04CV580 BTMWMC, 2007 WL 2009800, 23 at *2 (S.D. Cal. July 5, 2007). Considering all the foregoing, the Court finds that Plaintiff has not 24 overcome the presumption of awarding costs of the evidentiary hearing transcript in this instance. 25 /// 26 /// 27 /// 28 /// 1 Il. 2 ORDER 3 Based on the foregoing, it is HEREBY ORDERED that: 4 1. Defendants’ bill of costs is granted; 5 2. Defendants shall recover costs in the amount of $1,071.85, to be deducted from 6 Plaintiff’s prisoner account in monthly installments equaling “20 percent of the 7 preceding month’s income credited to the prisoner’s account,” anytime the balance 8 before the month deduction is greater than $10, until the total of $1,071.85 has been 9 collected; and 10 3. The Clerk of Court shall serve a copy of this order on the Director of the California 11 Department of Corrections, via the Court’s electronic case filing system (CM/ECF). 12 13 IT IS SO ORDERED. Al (ee 14 Dated: _ February 3, 2021 OF 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28