(PC) Barker v. Osemwingie

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 WILLIAM BARKER, No. 2:16-cv-3008 CKD P 12 Plaintiff, 13 v. ORDER 14 OSEMWINGIE, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant 18 to 42 U.S.C. § 1983 . Currently before the court is defendants’ bill of costs (ECF No. 76), which 19 plaintiff opposes (ECF No. 77). 20 I. Procedural History 21 On December 23, 2016, the court received plaintiff’s pro se, original complaint. (ECF 22 No. 1.) The complaint cited both 42 U.S.C. § 1983 and the Americans with Disabilities Act 23 (ADA) (id. at 3-5), and on screening was dismissed with leave to amend for failure to state a 24 claim (ECF No. 4). Counsel for plaintiff appeared shortly thereafter (ECF No. 5) and filed a first 25 amended complaint (ECF No. 7.). The first amended complaint asserted claims under Title II of 26 the ADA, 42 U.S.C. § 12132 ; Section 504 of the Rehabilitation Act (RA) of 1973; California’s 27 Disabled Persons Act (DPA), Cal. Civ. Code §§ 54.1 , 54.3; the Unruh Civil Rights Act (URCA), [28] Cal. Civ. Code §§ 51 , 52; and 42 U.S.C. § 1983 . (ECF No. 7.) Before the court could screen the 1 first amended complaint, plaintiff moved to file an amended complaint that added a claim under 2 Title V of the ADA, 42 U.S.C. § 12203 . (ECF No. 8.) The motion to amend was granted and 3 defendants were ordered to respond to the second amended complaint. (ECF No. 11.) 4 Defendants responded to the second amended complaint by filing a motion to dismiss. 5 (ECF No. 32.) The motion was granted and all claims, except the Eighth Amendment claim that 6 defendants Osemwingie and Ramiscal misused the Hoyer lift, were dismissed without leave to 7 amend. (ECF Nos. 42, 46.) Plaintiff then filed a third amended complaint1 that contained only 8 the Eighth Amendment claim that Osemwingie and Ramiscal misused the Hoyer lift. (ECF No. 9 47.) Defendants answered the complaint (ECF No. 49) and then moved for summary judgment 10 after the close of discovery (ECF No. 63). Summary judgment was granted (ECF No. 71), and 11 defendants then submitted their bill of costs (ECF No. 76), which plaintiff opposes (ECF No. 77). 12 II. Bill of Costs 13 Defendants have submitted a bill of costs which seeks reimbursement for their costs 14 associated with taking plaintiff’s deposition. (ECF No. 76.) Plaintiff objects and argues that 15 “[a]lthough the Local Rules permit the prevailing party to per se tax costs, defendants in civil 16 rights lawsuits in general, Americans with Disabilities Act claim in particular, must first show 17 that the lawsuit was frivolous,” and that plaintiff’s claims were not frivolous. (ECF No. 77 at 2 18 (citations omitted).) Defendants argue that this case proceeded only under § 1983 and that they 19 are not required to demonstrate the lawsuit was frivolous in order to recover costs for a 20 deposition. (ECF No. 78.) 21 III. Discussion 22 A prevailing defendant under the ADA can recover attorney’s fees and costs “only if the 23 plaintiff’s action was frivolous, unreasonable, or without foundation.” Brown v. Lucky Stores, 24 Inc., 246 F.3d 1182, 1190 (9th Cir. 2001) (citation and internal quotation marks omitted). 25 However, contrary to plaintiff’s assertion, the award of costs in this case is not governed by the 26 ADA. While plaintiff did attempt to bring claims under the ADA, they were dismissed after [27] 28 1 The third amended complaint was erroneously captioned as the second amended complaint. 1 defendants filed a motion to dismiss for failure to state a claim and prior to the taking of 2 plaintiff’s deposition. The cost of taking plaintiff’s deposition is therefore not attributable to 3 plaintiff’s ADA claims and a different standard applies. Id. 4 In civil rights actions brought under § 1983, a prevailing defendant is also prevented from 5 recovering attorney’s fees unless “the District Court finds ‘that the plaintiff’s action was 6 frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’” 7 Hughes v. Rowe, 449 U.S. 5, 14 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 8 412, 421 (1978)). However, unlike with claims brought under the ADA, this same standard does 9 not apply to the award of costs to a defendant prevailing on a § 1983 claim. Maner v. County of 10 Stanislaus, No. 1:14-cv-1014 DAD MJS, 2016 WL 8730741 , at *2-4, 2016 U.S. Dist. LEXIS 11 149964, at *5-10 (E.D. Cal. Oct. 28, 2016) (explaining why Christiansburg standard does not 12 apply to costs awarded in a civil rights action under 42 U.S.C. § 1988 ); see also Save Our Valley 13 v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (requiring that a district court need only 14 explain a refusal to deny costs under Federal Rule of Civil Procedure 54(d) in a § 1983 action). 15 Under Federal Rule of Civil Procedure 54(d), “[u]nless a federal statute, these rules, or a 16 court order provides otherwise, costs—other than attorney’s fees—should be allowed to the 17 prevailing party.” “Rule 54(d) creates a presumption for awarding costs to prevailing parties; the 18 losing party must show why costs should not be awarded.” Save Our Valley, 335 F.3d at 944 -45 19 (citations omitted). If the court declines to award costs to the prevailing party, it “must specify 20 reasons for its refusal to award costs.” Ass’n of Mexican-Am. Educators v. California, 231 F.3d 21 572, 591 (9th Cir. 2000) (citation omitted). However, there is no need for the court to “specify 22 reasons for its decision to abide [by] the presumption and tax costs to the losing party.” Save Our 23 Valley, 335 F.3d at 945 (emphasis in original). Reasons to refuse to award costs include “the 24 losing party’s limited financial resources; misconduct on the part of the prevailing party; the 25 importance of the issues; the importance and complexity of the issues; the merit of the plaintiff’s 26 case, even if the plaintiff loses; and the chilling effect on future civil rights litigants of imposing 27 high costs. Id. (internal citations omitted). A prevailing party’s ability to recover costs under 28 Rule 54(d)(1) is limited by 28 U.S.C. § 1920 and, in this District, by Local Rule 292. 28 U.S.C. MASE 6 LY VEU OY ENE MMU I Nee AY 1 | § 1920 (specifying taxable costs); L.R. 292(f) (same). 2 Plaintiff's only argument for why he should not be taxed costs in this case is based on 3 | inapplicable law, and he provides no evidence that any of the factors that would warrant denying 4 | the award of costs exist. He has therefore failed to overcome the presumption in favor of the 5 | award. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff's objections to defendants’ bill of costs (ECF No. 77) are overruled. 8 2. Defendants’ bill of costs is approved, and costs are awarded in the full amount of 9 | $1,091.10. 10 | Dated: April 21, 2020 rd f | Gx 1 CAROLYN K DELANEY) 12 UNITED STATES MAGISTRATE JUDGE [13] 14 || 13:bark3008.costs