United States District Court, S.D. California
ORDER GRANTING MOTION TO RE-TAX COSTS [DKT.
143]; ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR REIMBURSEMENT OF EXPENSES [DKT. 140]
Honorable Larry Alan Burns Chief United States District
before the Court are two costs motions related to the March
2019 trial in this case. The first is Plaintiff Tony
Roberts' motion to re-tax $2, 616.20 in costs the Clerk
awarded to Defendant N. Sabati as the prevailing party. The
second is a motion by Mr. Roberts' pro bono counsel to
recover expenses incurred in trying the case. For the reasons
below, Mr. Roberts' Motion to Re-Tax Costs is
GRANTED and Mr. Roberts' Motion for
Reimbursement of Expenses is GRANTED IN PART
and DENIED IN PART.
Roberts, a state inmate, brought this suit in 2015, alleging
that a series of prison dentists were deliberately
indifferent to his medical needs. This deliberate
indifference, Roberts claimed, led to him developing a series
of severe cavities and other dental ailments. By the time of
trial, only one defendant remained, Dr. N. Sabati. Mr.
Roberts, who had to that point represented himself pro se,
petitioned the Court for appointment of counsel. The Court
granted that motion and appointed Amber Lee Eck as his trial
counsel. Dkts. 86, 87. The case went to trial on March 19,
2019, and the jury returned a unanimous verdict in Dr.
Sabati's favor on March 21, 2019. The Court entered
judgment that same day.
prevailing party, Dr. Sabati moved for costs in the amount of
$3, 086.20. Dkt. 138. The Clerk held a hearing and granted
that motion in part, taxing costs against Mr. Roberts in the
amount of $2, 616.20. Dkt. 142. At the same time, Mr.
Roberts' counsel moved to recover expenses incurred in
trying the case, which is permitted in some situations under
the Court's pro bono rules. Dkt. 140. In all, Mr.
Roberts' counsel seeks to recover $22, 271.81 in
expenses, which includes $2, 737.86 for transcripts, $204.95
for demonstrative exhibits, and a total of $19, 329 for
witness fees paid to Mr. Roberts' dental expert, Dr.
Motion to Re-Tax Costs
Roberts objects to the Clerk's decision to tax costs
against him in the amount of $2, 616.20. This Court has
jurisdiction to review the Clerk's action. Fed.R.Civ.P.
54(d); L.R. 54.1(h). While there is a presumption in favor of
awarding costs to the prevailing party, courts have
discretion to deny costs as long as they specify an
appropriate reason. See Champion Produce, Inc. v. Ruby
Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003).
The Ninth Circuit has historically recognized three bases for
denying costs to the prevailing party: (1) a losing
party's limited financial resources; (2) misconduct by
the prevailing party; and (3) “the chilling effect of
imposing ... high costs on future civil rights
litigants.” Id. (quoting Ass'n of
Mexican-Am. Educators v. State of California, 231 F.3d
572, 592 (9th Cir. 2000)). While there's no allegation of
misconduct by the prevailing party, at least the first and
third bases for denying costs are implicated here.
Mr. Roberts is clearly indigent. He has no funds in any of
his accounts and thus would be unable to pay any costs
assessed to him. Indeed, a significant part of his argument
at trial was that he was unable to afford even basic
toiletries like toothpaste and that the prison-provided
“tooth powder” proved inadequate in preventing
cavities. Dr. Sabati nonetheless argues that because any
costs would be incrementally deducted from Mr. Roberts'
prison trust account as a small percentage of the account
balance, his ability to obtain basic necessities would not be
affected. Since Mr. Roberts does not have any money
in his account, however, it's unlikely that any portion
of these costs would be repaid until he leaves prison, at
which point the debt would simply serve as a hindrance to him
reintegrating into society. His indigency affects him just as
it would a plaintiff who is not incarcerated, and such
plaintiffs are usually not held responsible for costs.
See, e.g., Flores by & through Clark v. United
States, 2017 WL 5176884, at *2 (S.D. Cal. 2017)
(refusing to award costs because it would be unjust to order
indigent plaintiff to pay); see also Lowry v. City of San
Diego, 2013 WL 12209819, at *2 (S.D. Cal. 2013)
(refusing to award costs because plaintiff, though not
completely destitute, would be unable to support herself if
ordered to pay).
costs would also have a chilling effect on future civil
rights litigants. Dr. Sabati argues that the unique facts
here would likely distinguish the present case from future
civil rights litigation and therefore have no far-reaching
effect on inmate dental care or prison life. But factual
distinctions exist in every case, whether civil
rights-related or not. Were the Court to find Mr. Roberts
liable for costs, it would chill the willingness of other
inmates who believe they received inadequate dental care from
pursuing those claims. The Court can't countenance that
by taxing Mr. Roberts with costs.
Court finds that Mr. Roberts is indigent and that assessing
costs would chill future civil rights litigation. His Motion
to Re-Tax Costs is GRANTED.
Motion for Reimbursement of Expenses
Roberts also moves for the reimbursement of expenses incurred
in the prosecution of this action by his pro bono counsel,
Haeggquist & Eck, LLP. His counsel requests reimbursement
for $22, 271.81 of the $29, 049.85 in expenses they incurred.
This Court may reimburse out-of-pocket expenses necessarily
incurred by court-appointed attorneys representing indigents
in pro bono cases. L.R. 83.8(2)(a).
Court finds that Mr. Roberts' counsel should be
reimbursed $2, 737.86 for transcripts and $204.95 for charts
and exhibits. These costs were both necessary and reasonable.
The requested $19, 329 for the services of Mr. Roberts'
retained dental expert, however, goes above and beyond what
is necessary. In all, Mr. Roberts' counsel seeks
reimbursement for 30.4 hours of expert work before trial at
an hourly rate of $475 and an additional $4, 600 for the
witness to appear at trial. The Court finds that these
figures represent an unreasonably high fee for services.
Instead, the Court will apply the lodestar method-similar to
the approach used by federal courts in assessing
attorney's fees-to determine the reasonable amount of
expert fees. See Kelly v. Wengler,822 F.3d 1085,
1099 (9th Cir. 2016) (detailing the use of the
lodestar method to calculate attorney's fees). The Court
accepts as reasonable the expert's claimed 38.4 hours of
work. This includes 30.4 hours ...