Emily Rivera v. City of Chicago

example, For testi- deterred from ceedings portrayed. exercising his First Amend- Therefore, that had mony at trial indicated Ovadal ment rights. there been overpasses signs on Beltline with at been cognizable no constitutional harm under ques- in least six times before dates § 42 U.S.C. 1983. Accordingly, judg- tion, and had interacted with the Madison ment of the district court is Affiemed. police on of those occasions without several Tr.

any restriction on his activities. Dec.

12, 17, only at 68-69. The other witness called, frequent partner

that Ovadal his Foht, demonstrations Mike testified

these overpasses

that he had been on Beltline years

between ten and twelve times prior question to the and de- incidents Emily RIVERA, Plaintiff-Appellee, spite frequent interactions with Madison had forced to move. Tr. police never been 12, at it particularly

Dec. 92-93. We find CHICAGO, CITY OF Defendant- 8, telling (after that on November Appellant. events that led Ovadal to file this suit in No. 06-1318. alleges which he that he was “chilled and exercising deterred” from his First Appeals, United States Court of rights) Amendment Ovadal Foht were Seventh Circuit. bridge back on a over the Beltline. Tr. again, they Dec. 79-80. Once interact- Argued Oct. 2006. officer, police ed with Madison and the Decided Nov. 2006. officer that they informed them were free facts, protest. to continue their Id. The no

longer light viewed most favorable to

Ovadal, support allegations do not that any

there was ever absolute ban on Ovadal

protesting bridges from or that he was

chilled and deterred exercising his

rights.

III. Conclusion summary, passage city of the

ordinance has made claim for declara-

tory injunctive relief moot because alleged repeated. violations cannot be findings

We defer to the district court’s

fact that the actions of the defendants on specific in question dates were not speech.

content-based restrictions on support any

evidence at trial does not al-

legation general that there was a unwrit- policy placed prohi-

ten content-based on speech.

bitions Ovadal’s The record was not chilled or

indicates Ovadal finding

its that Rivera is appeals. now For following rea- sons, we vacate the district court’s denial of costs proceed- and remand further ings. Background

I. 21, 2001, p.m., On June at 11:30 former Chicago police officer Mario Morales went Emily apartment, Rivera’s identified police himself as a officer and demanded that let him in. Rivera Rivera was home with her six year daughter old and one month old At the inci- son. time of the dent, a wearing bulletproof Morales was badge pouch. vest and a opened Rivera the back door forcibly and Morales en- inside, apartment. tered the Once Mor- ales informed her he had a search warrant it but never showed to her. Mor- ales led Rivera upstairs, handcuffed her placed hands behind her back and her on a (argued), Michael D. Robbins Schlesin- up- bed. While Rivera was handcuffed Robbins, IL, & ger Chicago, for Plaintiff- stairs, apartment Morales ransacked the Appellee. and then left. Rivera report did not Emily K. (argued), Paster Office Following incident to law enforcement. Division, Corporation Appeals Counsel incident, pled guilty Morales to numer- IL, Chicago, Defendant-Appellant. felony federal offenses for which he is ous In currently plea agree- incarcerated. his FLAUM, Judge, Before Chief ment, entering Morales admitted Rivera’s EASTERBROOK, BAUER and Circuit apartment. Judges. brought complaint Rivera a two-count FLAUM, Judge. Chief against alleging Morales a violation of her rights Fourth Amendment under U.S.C. Chicago Mario police Former officer battery § claim. and a state law home, Emily Morales entered Rivera’s stayed The district court Rivera’s claim her, apart- handcuffed and ransacked her of related criminal pending the resolution Rivera a default judgment ment. obtained against Approximately matters Morales. Morales, currently in against prison who is later, year Rivera filed a motion to va- being after convicted of numerous felonies. stay, cate the which the district court attempt judgment, an to collect the granted. respond Morales failed to (“the City Chicago Rivera sued complaint, sought Rivera a default City City”). granted The district court him, judgment against which the district summary City judgment, and the submit- $175,000. granted the amount of pursuant ted a bill of costs the court 54(d)(1). attempted Procedure Rivera then to collect this Federal Rule Civil City through supple- City’s judgment court denied the costs based on from the The losing parties Feder- to avoid under proceeding collection under mental 54(d)(1). proper interpretation Procedure 69. Rivera Rule al Rule of Civil 54(d)(1) legal Mor- of Rule is a conclusion that argued City that the was liable for city em- we review de novo. Gavoni v. Dobbs conduct because he was ales’s House, Inc., under color of state law Cir. ployee and acted 1999). apartment. when he entered her summary arguing judgment moved for 54(d)(1) perti Rule provides for Morales’s should not be liable part, “[ejxeept express provi nent acting within conduct because he was sion therefore is made either in a statute scope employment. the of his The district rules, in the United States or these and entered granted the motion costs shall be allowed as of course the

judgment City. for the prevailing party unless the court otherwise favor, Following judgment the its the 54(d)(1). directs.” Fed.R.Civ.P. The rule City submitted a bill of costs to the district provides presumption losing the In response, argued court. Rivera party grants will costs but the court she should not costs associated with Although discretion to direct otherwise. litigation the because she is To specifically Rule 54 does not mention indi support indigence, her claim of Rivera sub- gence, speaks the rule of the district assets, stating mitted an affidavit of her terms, general court’s discretion in and single that she is a mother of four chil- certainly prohibit does not a district court dren, month, salary per earns a of $1800 considering indigence assigning when only money a nominal amount of in her losing party. costs to a account, checking stamps, receives food 1983, Since this Court has held that it is and has no other assets. The affidavit did “within the discretion of the district court expenses list her include the plaintiffs to consider a indigency deny- $175,000judgment against among Morales 54(d).” ing costs under Rule Badillo v. her assets. The district court found that Co., 1160, Cent. Steel & Wire 717 F.2d showing Rivera made a sufficient to dem- (7th Cir.1983); 1165 see also Mother & “indigency inability onstrate her (7th 704, Cassidy, Father v. 338 F.3d 708 pay costs.” Cir.2003); Union, Reed v. Int’l 945 F.2d Analysis (7th 198, II. Cir.1991); Congregation 204 Touche, Co., Passion v. Ross & 854 F.2d City arguments ap- makes two on (7th Cir.1988). 219, 222 Though City the peal. First, City requests the this Court adopted exception asserts that we the reexamine whether district courts analysis without relying without on losing party’s indigence consider a any prior precedent, was a case of Badillo ruling on a by bill of costs submitted impression Court, first for this and that is prevailing party under Federal Rule of why precedent no opinion. was cited 54(d)(1). Second, City Civil Procedure In that unambiguous case we relied on the argues that the district court abused its 54(d), language of Rule and held that the City’s discretion denying the motion for power to award costs is matter within costs. the sound discretion of the district court. Badillo, 717 F.2d at 1165.

A. City argues support that we should argument of its that we cases, abolish the exception indigent that allows should reconsider the Badillo line of

635 ” Faulkner, claims.... v. 18 Court McGill F.3d City Supreme states that (7th Cir.1994).1 456, 460 exception adopted indigence has never 54(d). it is true that the While to Rule Finally, takes issue with the adopted such an has never Supreme Court exception indigence gives because dis- avail- it has not foreclosed its exception, trict courts unbounded discretion and en- Furthermore, seven other ability either. courages litigants por- of modest means to district courts consider permit circuits tray indigent they themselves as whether indigence when deter- losing party’s not, truly leading are or to fraud on the to award costs. See Rod mining whether concerns are policy district courts. These Farms, 1180, 360 F.3d riguez Whiting v. however, legitimate; the answer is not to (10th Cir.2004); Thomp v. Lampkins 1190 Rather, indigence exception. eliminate the (8th 1009, Cir.2003); son, F.3d 1017 337 provide the better course is to the district (2d Scully, 273 guidance considering courts with wheth- Whitfield Cir.2001); Tramp., v. AI Chapman an indigent party er hold liable for Cir.2000); In re F.3d Litig.,

Paoli R.R. Yard PCB F.3d First, the district court must (3d Cir.2000); Cherry Champion 462-68 finding make a factual that the threshold (4th 442, Int’l 186 F.3d 446 Cir. Corp., losing party of “incapable paying is the Cal., 1999); Stanley v. Univ. 178 F.3d of S. court-imposed costs at this time or in the (9th Cir.1999). 1069, Only one circuit 1079 McGill, future.” F.3d at 459. 18 The expressly prohibited district courts losing party provide burden is on the to considering losing party’s indigence from court the district with “sufficient documen 54(d). awarding costs under Rule when support finding.” Chap tation to such a Petree, 724, McDonald v. 409 F.3d 732 See man, 229 F.3d at 1039. This documenta (6th Cir.2005). acceptance Because the tion should include evidence the form of established, indigence exception the is well documentary an affidavit or other evidence it. we decline to abandon assets, of both income and as well as a expenses. a non- Requiring schedule of City expresses The concern that prevailing party provide to information indigence exception the eliminates the di expenses and will about both income/assets indigent litigants pursue sincentive for to proof ensure that district courts have clear However, indigence meritless claims. non-prevailing party’s of the dire financial automatically losing the does not excuse Moreover, any circumstances. it will limit party paying prevailing party’s litigants of modest means to incentive Luckey costs. See v. Baxter Healthcare portray themselves as Cir.1999). 730, Corp., 183 F.3d 733-34 indigence Second, fact that is not a blanket The court should the district City’s costs, paying tempers good excuse for costs amount of consider the allowing the dis policy argument losing party, because faith of the and the closeness by on a case impose difficulty trict court discretion to costs and of the issues raised deny costs. indigent litigants pur using “serves the valuable its discretion determinative, factor is but the poses discouraging unmeritorious No one fact, system "regular active use of the court have used their dis- 1. In district courts police blatantly cretion to frivolous lawsuits costs that in favor of her militate[d] brought by losing party. In Farrar v. impose[d] [d]e- lawsuits on her unsuccessful Gorchowiak, al- the district court held that 1, August Minute Order at 2. fendants." 2005 losing plaintiff indigent, though the was her provide explana- district court should an F.3d at 459. Rivera did not include deny regarding ability information her future tion for its decision to award City’s costs. Two district court Chapman, (holding See 229 F.3d at 1039 cases from this Circuit are instructive. that a district court must have and state so); Regional Denson v. Northeast Illinois doing Cantrell v. Int’l sound basis Workers, 456, Corporation, Commuter Railroad Bhd. Elec. (10th Cir.1995) plaintiff filed an attesting affidavit she (holding that when a dis- months, had not eight worked for over she trict court exercises its discretion and de- herself, supported it her two children and a prevailing party, nies costs to a must denial). grandchild, savings, she had no provide a valid for the she reason supplemental security received income Though we decline to abolish the benefits. No. 00 C WL indigence exception, we note that the ex (N.D.Ill. 2003). *2 June 54(d)(1) ception is a narrow one. Rule court held that “this affidavit shows provides presumption that costs are plaintiff presently indigent. [wa]s Howev prevailing party, awarded to the and the er, it does not show plaintiff whether is non-prevailing party burden is on the unlikely to be able presumption. overcome this explained future.” Id. The court that the plaintiff employed past had been in the B. and had indicated a desire to continue claims that the dis work, thus, held, possible was trict court abused its denying discretion plaintiff that the again gainfully would its motion for costs. This Court reviews a employed in the future. The court award denial of a motion for costs under Rule stayed ed costs but the execution of the 54(d)(1) an abuse of discretion. United judgment plaintiffs until the circum Santiago, States v. changed. stances Id. Cir.1987). An abuse of discretion occurs contrast, By Roadway Cross v. Ex “only person when no reasonable could press, plaintiff the an unemployed was sin adopted by take the view the trial court.” children, gle parent to three who suffered Id. from severe mental health problems, and outset, At the we note that the district Security received a month in Social $840 court did not state the basis for its decision payments. No. 93 C 1994 WL Rather, deny to it summarily con- (N.D.Ill. 1994). Oct.26, *1 that, cluded “defendant’s for costs [motion] court, finding plaintiff that the was indi denied, plaintiff is as made a sufficient gent, focused on the fact that his illness showing indigency inability of pay to impossible “rendered it plaintiff] for [the costs.” to pursue occupation his former a truck as Thus, plaintiff driver.” Id. proven the had claims that Rivera an inability to costs in the future. provide did not the district court with suf Here, ficient information for the court to deter Rivera submitted an affidavit mine that she is To prove averring single her that she is a mother of four indigence, required Rivera was to show not children and works full time at American only that she incapable paying was of Medical Women’s Center as a medical re- they court-ordered costs at the time ceptionist, earning salary per were of $1800 imposed estate, also that incapable but she will be month. She owns no real stocks McGill, bonds, paying vehicles, accounts, them in the future. or savings an un- Supreme has a the Court or amendment support. no child She she receives balance, Enabling produce the Act can account with a nominal der Rules checking However, stamps. uniformity; point food national there is little and she receives restlessly include information re- moving Rivera did not our one side the monthly expenses. She testi- garding her conflict to the other. building in a owned

fied that she lives If an express opinion we are to on the mother, certainly would bear on her which however, subject, I would not endorse our City’s costs if she has ability her practice, my colleagues current as do in testi- pay. no rent to Rivera also little or (I opinion. join Part II.A of the court’s do Royce that her has not lived with fied son II.B, why a explains Part which remand is years Royce’s and that father her for two appropriate ap- under this current circuit’s him. supports proach.) It would better to award full-time and has no employed Rivera is (which is “as of course” what Rule Moreover, problems speak of. medical says) bankruptcy question and leave to $175,000judgment against Mario she has a possible. whether collection is Discretion currently Morales is Although Morales. against be exercised an award when up years prison, Rivera has seven up victor has run costs or otherwise against him. She judgment collect this judicial process, par- abused the but a citation to discover yet has not filed good relative wealth is not a reason to ties’ so she cannot claim that Morales’ assets winner, any deny costs to the more than a satisfy Morales has no assets with which losing litigant’s indigence good would be a judgment in her favor. Given damages an award of reason to withhold court provide Rivera did not the district theft, battery, or breach of contract. expenses a schedule of and did with If with indigent person an hits someone finding that she identify any basis for $1,000 loss, the court a car and causes City’s costs incapable will be $1,000 regard to the will award without future, point at in the the district some indigent person If an hits driver’s income. denying abused its discretion a lawsuit and causes a someone with City’s costs. (in defense), $1,000 costs of the same loss award of consequence should ensue: an III. Conclusion award, $1,000. For either whether collec- reasons, we For the above stated Vaoate bankruptcy question tion occurs is con- proceedings and Remand for further exemptions). law of (including the state opinion. with this sistent pay cannot all creditors When a debtor full, pay something, in can there is no but EASTERBROOK, Judge, Circuit litigants who are out why prevailing reason concurring. nothing receive while oth- pocket of should sensibly rejects Chicago’s pro- The court And when valid claims. er creditors retain Badillo v. Central Steel posal to overrule pay cannot is so destitute he debtor (7th Co., Cir.1983), 717 F.2d 1160 & Wire harm in the award of anything, there is no successors, which allow district and its only person can It is when indigent judges to excuse unsuccessful but otherwise) (but a court persuade tries to Fed. litigants costs under that the award matters. 54(d). indigent litigants R.Civ.P. Whether debt re- trying Instead of to administer pay statutory to costs is a must be ordered time, creating an odd Only one claim at a subject the circuits. lief that has divided (and extra-statutory) priorities, may set of dis- collected from future income have (c) and let the avoids judges discharged bankruptcy.) trict should award costs It handle all bankruptcy proceeding disparate identically collective treatment of situated go, according and all at litigants. judges debts creditors one District differ substan- Bankruptcy governs they Code—which this tially in how use the discretion only paid which claims are first but give regu- court’s decisions them. Some a given how much a debtor with level also larly costs for nev- indigents; excuse some of income must do; creditors er some draw hard-to-articulate lines. and over time. All a aggregate, how much Rights measured the chancellor’s foot by excusing pay- court can district do “rights” kind, are not and such a of costs is the Bank- ment interfere with process stochastic is not the administration system. judge ruptcy Code’s A should not justice. need in an apply We rules that deserving poor” his office to favor use “the fashion. even-handed likes, litigants expense other or he at (and potential litigants

of victorious court);

benefit creditors not before

justice must without be administered re-

gard persons. 54(d) together

Rule must be read with § U.S.C. says which subsection (a)(1) litigant that an impoverished may AEREE re LINEE ITALIANE without proceed prepaying filing fees. (ALITALIA), Petitioner. Only excused, pre-payment as is subsec- No. 06-2935. (f)(1) tion shows: “Judgment be ren- dered costs at the of the suit conclusion States Appeals, United Court of action proceedings”. as other All Seventh Circuit. fees, filing costs—which include the see 28 1920(1) § U.S.C. remain as debts of Aug. 2006. Submitted —thus side, losing paid if and Decided Nov. 2006. resources are available. McGill v. See Faulkner, (7th Cir.1994); 18 F.3d 456 Ab- Nathan,

dul-Wadood 91 F.3d 1023

Cir.1996).

Making the award of routine (a)

three additional benefits: It avoids the

expense suit-by-suit inquiries into indi- which

gence, as this case shows

complex. Why replicate bankruptcy pro- just

ceeding to decide on an award of (b)

costs? It avoids positives. false Some

people indigent who claim to be aren’t.

Indeed, very indigent, “I’m assertion please implies solvency.

so excuse me” that,

Why you seek to avoid an if award (A destitute, you? pau-

are cannot harm who

per fears that could be award

Case Details

Case Name: Emily Rivera v. City of Chicago

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 21, 2006

Citation: 469 F.3d 631

Docket Number: 06-1318

Court Abbreviation: 7th Cir.