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Simmons v. Akanno

United States District Court, E.D. California

May 1, 2017

CHRISTOPHER SIMMONS, Plaintiff,
v.
J. AKANNO, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING SUSTAINING PLAINTIFF'S OBJECTIONS, AND DENYING DEFENDANTS' BILL OF COSTS (ECF 97, 98, 106, 109)

         Plaintiff Christopher Simmons, who is appearing with retained counsel, proceeds in this action pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12203(a). This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         I.

         BACKGROUND

         On March 29, 2010, the California Department of Corrections and Rehabilitation (“CDCR”) removed this matter from state court to the Eastern District of California by the California. (ECF No. 1.) At that time, CDCR paid the filing fee of $350 to the Clerk of the Court. The complaint was screened, and following amendments, the matter proceeded on Plaintiff's third amended complaint against Defendants Heldgord, Campas, Covarrubias, Hedgpeth and Akanno for claims of retaliation in violation of the Americans With Disabilities Act, 42 U.S.C. § 12203(a), for violations of the California Disabled Persons Act, Cal. Civ. Code §§ 54(c), 54.1(d), and for violations of the Unruh Civil Rights Act, Cal. Civ. Code § 51(f). (ECF No. 52.)

         On March 7, 2017, the District Judge issued an order adopting the findings and recommendations and granting summary judgment in favor of Defendants on all claims in this action. (ECF No. 95.) The District Judge directed that judgment be entered in favor of Defendants and the case be closed. A judgment was entered that same day. (ECF No. 96.)

         On March 13, 2017, Defendants Campas, Covarrubias, Hedgpeth, and Keldgord submitted a bill of costs, seeking costs taxed against Plaintiff in the sum of $1, 771.20. (ECF No. 97.) On March 22, 2017, the Clerk of the Court taxed costs against Plaintiff in the sum of $1, 537.45. (ECF No. 99.) On March 22, 2017, the Clerk of the Court taxed costs against Plaintiff in the amount of $1, 537.45. (ECF No. 99.)

         On March 20, 2017, Plaintiff filed objections to the bill of costs submitted by Defendants Campas, Covarrubias, Hedgpeth, and Keldgord. (ECF No. 98.) On March 23, 2017, the Court stayed the taxation of costs, and required Defendants to file a response to Plaintiff's objections within 20 days. (ECF No. 100.) Plaintiff was permitted to file a reply to Defendants' response to the objections within 7 days of the date of service of Defendants' response. (Id. at 2.)

         On April 10, 2017, Defendants filed their response to Plaintiff's objections. (ECF No. 106.) On April 19, 2017, Plaintiff filed a reply to Defendants' response. (ECF No. 109.)

         The Court notes that Plaintiff's reply was not timely filed, and Plaintiff did not address any cause for the late filing of the reply. Nevertheless, in this instance the Court will exercise its discretion to consider Plaintiff's reply in evaluating the objections.

         II.

         OBJECTIONS

         Defendants requested costs consisting of the fees paid to the Clerk of the Court at the time of removal, and costs incurred from deposing Plaintiff on September 8, 2015, October 28, 2015, and December 29, 2015. (ECF No. 97.) Multiple deposition sessions were required because Plaintiff did not bring all requested documents to the first deposition session, and because Plaintiff's mental health issues prevented him from testifying in the second deposition session. (ECF No. 74.) Defendant Akanno was later represented by separate counsel, (ECF No. 87), but at the time that these costs were incurred, counsel for Defendants Campas, Covarrubias, Hedgpeth, and Keldgord represented all Defendants.

         Plaintiff objects to the bill of costs, arguing that defendants who prevail in an Americans with Disabilities Act (“ADA”) lawsuit must show that the plaintiff's allegations were frivolous before costs may be taxed against that plaintiff. Plaintiff asserts that his ADA allegations were not found to be frivolous, and therefore the application to tax the bill of costs must be denied. (ECF No. 98.)

         Defendants argue that Plaintiff's claims were frivolous and without foundation. On January 27, 2015, CDCR filed a motion to dismiss the third amended complaint on the ground that Plaintiff failed to state a claim under the California Disabled Persons Act (“CDPA”) or the Unruh Act, because those claims were barred by the Eleventh Amendment. (ECF No. 54.) Following briefing, on September 30, 2015, that motion to dismiss was granted. (ECF No. 72.) Defendants argue that the parties met and conferred concerning the Eleventh Amendment immunity issue, but Plaintiff nevertheless persisted ...


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