United States District Court, D. Montana, Helena Division
L. Christensen, Chief Judge
before the Court is Defendant Sam Jovanovich's
Application for Taxation of Costs (Doc. 180) and Plaintiff
Laurence Stewart's Motion for Transcripts (Doc. 185). On
April 15, 2019, this action proceeded to a jury trial on Mr.
Stewart's claim that Officer Jovanovich retaliated
against him in violation of the First Amendment. On April 17,
2019, the jury returned a verdict in favor of Officer
Jovanovich and judgment was entered in favor of Officer
Jovanovich and against Mr. Stewart on April 23, 2019. On
April 29, 2019, Officer Jovanovich filed a bill of costs. Mr.
Stewart did not respond to the application for bill of costs
but on May 31, 2019 he filed a Motion for Transcripts at
Government Expense (Doc. 185).
BILL OF COSTS
of the Federal Rules of Civil Procedure provides that
"costs-other than attorney's fees-should be allowed
to the prevailing party." Fed.R.Civ.P. 54(d)(1). Rule 54
creates "a presumption for awarding costs to prevailing
parties; the losing party must show why costs should not be
awarded." Save Our Valley v. Sound Transit, 335
F.3d 932, 945 n. 12 (9th Cir. 2003). In deciding whether to
exercise discretion to refuse to award costs, the district
court should consider appropriate reasons to deny costs such
as "(1) the substantial public importance of the case,
(2) the closeness and difficulty of the issues in the case,
(3) the chilling effect on future similar actions, (4) the
plaintiffs limited financial resources, and (5) the economic
disparity between the parties." Draper v.
Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016)
(quoting Escriba v. Foster Poultry Farms, Inc., 743
F.3d 1236, 1247-48 (9th Cir. 2014)). This list is not
exhaustive, but is a starting point for the analysis.
Draper, 836 F.3d at 1087.
jury found for Officer Jovanovich, he is therefore the
prevailing party and the presumption to award costs has
arisen. He seeks costs for copying fees which are taxable
costs under 28 U.S.C. § 1920. Defendant asserts the
copies were necessarily obtained for use in this case. The
Court does not necessarily agree that all of the costs
requested were necessarily obtained for use in the case as
opposed to for the convenience of the
Defendant. Regardless, the Court finds that it would
be an abuse of discretion to award costs in this matter and
therefore denies the application for bill of costs.
case is quite similar to Draper where the Ninth
Circuit held that cases bringing claims for violations of the
Eighth Amendment have "substantial public
importance" because they are important to safeguard the
rights and safety of prisoners. Draper, 836 F.3d at
1088. Similarly, the Court finds that Mr. Stewart's First
Amendment retaliation claim was of "substantial public
importance." This is a recurring issue raised by
prisoners at Montana State Prison and it is important to
safeguard the rights of prisoners.
addition, the Court finds that this was somewhat of a close
case. Mr. Stewart successfully defended Defendant's
Motion for Summary Judgment and he presented a coherent and
plausible case. The case turned on competing accounts of
whether Mr. Jovanovich was responsible for firing Mr. Stewart
and whether that firing was done in retaliation for Mr.
Stewart filing grievances. The jury deliberated for several
hours after hearing a day and a half of testimony. Like
Draper, this was a close case.
award of the full amount of costs sought in this action would
also have the potential to chill inmates in similar lawsuits
challenging constitutional violations from filing actions.
Draper, 836 F.3d at 1088. It seems clear, given the
small amount of costs sought in light of the obvious effort
necessary to prepare the bill of costs and Mr.
Stewart's clear inability to pay, that costs are being
sought merely to chill inmates in similar lawsuits from
challenging constitutional violations. The Court will not be
a party to this.
Mr. Stewart has not submitted any argument regarding his
income or ability to pay costs in this action, the Court
notes that he is incarcerated and serving seven life
sentences. His initial application to proceed without
prepayment of fees indicates that he has limited income.
There is nothing to indicate that this situation has changed.
As in Draper, there is no comparison between Mr.
Stewart's limited resources and those of the state of
Court finds that it would be an abuse of discretion to award
statutes must be considered whenever the district court
receives a request to prepare transcripts at the
government's expense. First, 28 U.S.C. § 1915(c)
defines the limited circumstances under which the court can
direct the ...