Case Information
1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
DARRELL HUNTER, Case No. 11-cv-4911 JSC Plaintiff, ORDER RE: PLAINTIFF’S MOTION FOR REVIEW OF CLERK’S TAXATION OF COSTS (Dkt. No. 219) v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
Now pending before the Court is Plaintiff’s Motion for Review of the Clerk’s Taxation
of Costs (Dkt. No. 219).
[1]
Having considered the parties’ submissions, and having had the
benefit of oral argument on October 31, 2013, the Court GRANTS Plaintiff’s motion and
declines to award costs in this action.
BACKGROUND
Plaintiff filed this suit alleging violation of his civil rights under state and federal law
following an incident that occurred while he was in the custody of the San Francisco
Sherriff’s Department on December 7, 2010. At the time of the incident, Plaintiff was seated
in the intake area of the San Francisco County Jail being interviewed by a nurse. Several
deputies began to gather around Plaintiff, and one of them, Defendant Deputy Burleson, made
physical contact with Plaintiff’s upper body subsequent to which Plaintiff fell or was placed
on the floor and handcuffed. Plaintiff alleged that Burleson struck him in the head and
several of the other deputies used excessive force during the incident. The incident was
captured on videotape, although it was not documented as a use of force incident. Plaintiff
filed a Citizen’s Complaint alleging excessive force with the San Francisco Sheriff’s
Department which was forwarded to Defendant Undersheriff Dempsey for review as to two
of the deputy Defendants (including Burleson). Thereafter, the Assistant Legal Counsel for
the Office of the Sheriff issued Defendant Burleson a Notice of Intent to Impose Suspension
for up to Five (5) Days Without Pay finding that he had used excessive force. A month later,
Defendant Burleson had a Skelly hearing before Defendant Hennessey, the Sheriff at that
time, who declined to impose any discipline.
The case proceeded to trial on Plaintiff’s claims of excessive force against the
individual Sheriff’s deputies involved in the incident, Plaintiff’s Bane Act claim (violation of
California Civil Code Section 52.1) as to Deputy Burleson and the City and County of San
Francisco, Plaintiff’s claim for supervisory liability against Senior Deputy Nuti, and
Plaintiff’s
Monell
excessive force claim. The Court phased the individual liability portion of
the trial from the damages and
Monell
claims. After a week-long trial, the individual liability
issue was submitted to the jury who returned a verdict in favor of Defendants, thus ending the
trial prior to presentation of Plaintiff’s and damages claims.
Following the jury’s verdict, the Clerk granted Defendants’ request for costs and taxed
costs in the amount of $14,635.81.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 54(d), the prevailing party in a lawsuit may
recover its costs “unless the court otherwise directs.” Rule 54(d) “creates a presumption in
favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse
to award costs.”
Association of Mexican-American Educators v. State of California
, 231 F.3d
572, 592 (9th Cir. 2000) (en banc). The presumption in favor of costs is not rigid.
Fishgold
v. Sullivan Drydock & Repair Corp
.,
DISCUSSION Although Rule 54 creates a presumption that the prevailing party is entitled to costs, the Court has discretion to deny costs where: (1) the plaintiff has limited financial resources; (2) there is a great economic disparity between the parties; (3) the taxation of costs would chill civil rights litigation; (4) the case involves issues of substantial public importance; or (5) the case was close and difficult, and the plaintiff’s case had some merit. Mexican–American Educators ,231 F.3d at 593 (noting that this is not an exhaustive list); see also Champion Produce, Inc. v. Ruby Robinson Co., Inc .,342 F.3d 1016 , 1022 (9th Cir. 2003) (referencing with approval factors considered by other circuits including where the losing party litigated in good faith). Here, each of these factors weighs in Plaintiff’s favor, and thus, the Court exercises its discretion to deny costs. Plaintiff’s Limited Financial Resources Plaintiff contends that he is indigent. In support of this allegation he has submitted a declaration attaching both a June 6, 2012 order of the San Francisco County Superior Court granting him leave to proceed without payment of the fees, and an application to proceed in forma pauperis in this Court dated August 31, 2013. (Dkt. No. 220.) According to Plaintiff’s declaration, he has not held full-time employment since December 2010 and relies on state welfare and food stamps for his basic needs. [2] Defendants do not dispute that Plaintiff has not been employed since 2010; rather, Defendants contend that Plaintiff received a legal settlement in the amount of $35,000 in 2011 and speculate that he recovered money following his acquittal of unrelated criminal charges in 2008 pursuant to California Penal Code § 4900. Plaintiff responds that the $35,000 was his only income from 2011 through 2013 and states that he did not recover any funds under Section 4900. See Washburn v. Fagan , No. 03- 00869,2008 WL 361048 , at *2 (N.D. Cal. Feb. 11, 2008) (concluding that “Plaintiff’s receipt of [] settlement proceeds does not change the fact that Plaintiff still has very limited means.”). Moreover, Plaintiff’s in forma pauperis application reflects an outstanding debt to the Internal Revenue Service of $11,000. Finally, given Plaintiff’s mental health issues and criminal history, it is indisputably challenging for him to find full-time employment going forward . See Stanley v. Univ. of S. California ,178 F.3d 1069 , 1080 (9th Cir. 1999) (“The mere fact that [plaintiff] had not obtained employment at the time of the filing of the cost bill is persuasive evidence of the possibility she would be rendered indigent should she be forced to pay”). The Ninth Circuit advises that “[d]istrict courts should consider the financial resources of the plaintiff and the amount of costs in civil rights cases.” Stanley ,178 F.3d at 1079 . Indeed, “[w]hether the financial resources in question are of a level sufficient to deny an award of costs can be inferred from the economic circumstances of the plaintiff.” Ayala v. Pac. Mar. Ass’n , No. 08-0119,2011 WL 6217298 , at *2 (N.D. Cal. Dec. 14, 2011)) (internal citations and quotation marks omitted). Here, Plaintiff has established that he is of significantly limited financial means such that a cost award of $14,635.81 would render him indigent to the extent that he is not already. See Rivera v. NIBCO ,701 F. Supp. 2d 1135 , 1143 (E.D. Cal. 2010) (“It is not necessary to find that the plaintiffs in question are currently indigent; rather, the proper inquiry is whether an award of costs might make them so.”). Accordingly, Plaintiff’s financial situation supports a denial of costs. The Economic Disparity Between the Parties As discussed above, Plaintiff is of extremely limited financial means. Defendants, the City and County of San Francisco, six San Francisco Sheriff’s Department deputies, Undersheriff Dempsey, and former Sheriff Michael Hennessey, while public entities and public employees, are in a vastly different financial situation that Plaintiffs. See, e.g., Washburn ,2008 WL 361048 at *2 (finding that “there exists a significant economic disparity between Plaintiff and the City and County of San Francisco, the entity seeking to recover costs in this action”). This factor thus likewise supports a denial of costs. Whether the Case Involves Issues of Significant Public Importance
Plaintiff Darrell Hunter filed this civil rights suit seeking to vindicate his rights following an incident at the San Francisco Jail whereby he alleged that six San Francisco Sheriff’s deputies used excessive force against him while he was seated in a chair at the intake area. Plaintiff contended that the City and County of San Francisco should be liable for the incident because the internal affairs investigation following the incident, first by internal affairs, then upon review by former Sheriff Hennessy, ratified the unconstitutional conduct of the deputies involved in the incident. Through discovery, Plaintiff learned that internal affairs had forwarded his complaint regarding two of the deputies involved in the incident to the Sheriff for further action, and further, that the Sherriff Department issued a Notice of Intent to Discipline to Defendant Burleson [the first deputy who physically made contact with Plaintiff during the incident] stating that “[y]our use of force with an inmate seated in a chair and surrounded by seven or eight deputies who was not physically threatening to you was abusive and demonstrated a clear violation of the Use of Force Policy and your training as a deputy sheriff.” (Dkt. No. 104-3 at p. 2.) Former Sheriff Hennessey then presided over a Skelly hearing for Burleson and concluded that no discipline should be imposed. (Dkt. No. 104-4.) Sheriff Hennessey was unable to recall whether he viewed the videotape of the incident prior to rendering his decision, although he testified that he did not believe he reviewed it before the hearing or during the hearing. (Dkt. No. 126 at 6:2-10.) Based on this evidence, the Court denied Defendants’ motion for summary judgment on Monell liability as to the City and County of San Francisco, but
bifurcated the individual liability and
Monell
liability issues for trial. (Dkt. Nos. 126 & 162.)
At trial, the jury found for Defendants on the question of individual liability and thus
did not consider the issues. The fact that the
Monell
issues were not presented to the
jury does not alter the significance of Plaintiff’s pursuit of these issues. Indeed, that a
plaintiff is not ultimately successful on the merits of an issue does not mean that the issues the
individual sought to redress were insignificant.
See Darensburg v. Metro. Transp. Comm’n
,
No. 05-01597,
Finally, the Court notes that this case was heavily disputed and vigorously litigated by both sides. Defendants did not even move for summary judgment on the excessive force claim as to the individual Defendants, and the Court denied Defendants’ motion for summary judgment on liability as to the excessive force claim. There was conflicting lay testimony presented at trial regarding the alleged excessive force incident and the parties’ experts disputed what level of force would be reasonable under hypothetical situations similar to the underlying incident. The jury considered this testimony and the videotape of the alleged incident, and after two days of deliberations and multiple notes, found in favor of Defendants. This does not, however, amount to a finding that Plaintiff’s case was without merit. See Sonoma Cnty. Ass’n of Retired Employees v. Sonoma Cnty ., No. 09-04432, 2011 WL 3957262, at *2 (N.D. Cal. Sept. 7, 2011) (“whether the plaintiff prevails on its claims is not determinative”). CONCLUSION Based on the foregoing, Plaintiff’s Motion for Review of the Clerk’s Taxation of Costs is GRANTED. The Court declines to award costs in this matter. This Order disposes of Docket Nos. 218 & 219. IT IS SO ORDERED. Dated: November 19, 2013 _________________________________ JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE
Notes
[1] Plaintiff also filed the identical document as “Objections to Bill of Costs” at Docket No. 218.
[2] Defendants’ objection that Plaintiff has provided “no information as to how he pays rents and other living expenses,” is belied by the record, including Plaintiff’s application to proceed in forma pauperis (which Plaintiff attested to under penalty of perjury) stating that he receives $340 a month in state welfare and $200 in food stamps. Compare Dkt. No. 225 at 3:12-13 with Dkt. No. 220-2 at 2.