Opinion
Case No. 96-74996
April 24, 2002
DENISE PAGE HOOD, STEVEN D. PEPE, U.S. District Judge
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO TAX COSTS (DOCKET # 132)
Defendant Freeburn filed this motion to tax costs on September 28, 2001, following a jury trial and entry of judgment for Defendant on July 24, 2001. Plaintiff did not file a response. The motion was referred for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B).
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 1996, Plaintiff filed a complaint, claiming that various defendants violated his federal constitutional rights. The defendants filed a motion to dismiss or for summary judgment, which was granted in part and denied in part. The sole remaining defendant, Defendant Freeburn, filed a second motion to dismiss or for summary judgment, which was denied. Later, Defendant filed a third (renewed) motion to dismiss, which was granted in part and denied in part.
The case proceeded to trial on Plaintiff's sole surviving claim of retaliation. According to this Court's earlier decision, the retaliation claim arose from the following circumstances:
Plaintiff has alleged that on August 28, 1995, defendant Freeburn threatened plaintiff's life. Later the same day, plaintiff was standing in front of RUM Beckwith's office, informing her of this threat by Freeburn and asking her to transfer him to another unit. Plaintiff alleges that the complaint to RUM Beckwith was made in defendant Freeburn's presence. In response, defendant Freeburn allegedly retaliated against plaintiff by (1) calling the gun tower officer, telling him that plaintiff refused to go back to his cell and instructing the officer to shoot plaintiff if he moved, and (2) having plaintiff wrongfully placed in administrative segregation for four days for refusing to lock in.Johnson v. Freeburn, 29 F. Supp.2d 764, 766 (E.D. Mich. 1998).
The asserted events giving rise to this case arose at a time when the only clearly established standard of what constituted unconstitutional retaliation against an inmate required that the act of retaliation be an egregious abuse of government power that shocked the conscience. See Cale v. Johnson, 861 F.2d 943, 949 (6th Cir. 1988), abrogated by Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999).
It was not until 1999 that the Sixth Circuit abandoned this requirement and required only that the retaliatory act be of sufficient severity that "it would deter a person of ordinary firmness from engaging in" the protected First Amendment activity. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Plaintiff's case at trial included evidence that he was present and heard Defendant Freeburn give the instructions to the gun tower to shoot Plaintiff if he moved. Other inmate witnesses corroborated this, and one inmate even thought that Freeburn's instruction was directed at him. Freeburn's defense was consistently to deny making this statement or giving this directive to the gun tower. As a result, there was no evidence presented, other than this denial, to counter that the directive was given in Plaintiff's presence. Nor was there any defense or other evidence presented that could support any penological justification for Defendant Freeburn, a corrections officer, to instruct a guard in the gun tower to shoot Plaintiff if he moved.
After closing argument and instructions, the jury was given special interrogatories. It answered "yes," to the first question on the verdict form (question 1), which asked:
Did Defendant Freeburn threaten to have Plaintiff Johnson's "black ass killed" and did Plaintiff then threaten to report that Defendant Freeburn had made this threat on the morning of August 28, 1995; later, did Plaintiff Johnson seek to report this incident to the counselor at which time did Defendant Freeburn state, "If he moves, shoot him"?
Plaintiff's counsel did not request that on the facts of this case, if the jury answered "yes" to this first interrogatory, that it be instructed as a matter of law that such actions of Defendant Freeburn did constitute an egregious abuse of his power and did shock the conscience. Without much guidance, the following question was submitted to the jury:
Do you find that Defendant Freeburn's action "shocks the conscience" or was an "egregious abuse of government power"?
The jury answered "no" to this question, which was a necessary finding for a prisoner's retaliation claim at that time, as noted above. The answer "no" on the verdict form indicated that the jury's verdict was for Defendant. Accordingly, a verdict was entered for Defendant on July 20, 2001, and judgment was entered on July 24, 2001. Plaintiff filed motions for reconsideration and for a new trial, which were denied in an order issued on December 14, 2001.
II. ANALYSIS
A. Standard for Costs Other Than Attorney Fees
Under 28 U.S.C. § 1920, the court may tax as costs fees for court reporting, exemplification, and copying. Federal Rule of Civil Procedure (Fed.R.Civ.P.) 54(d)(1), which indicates when the taxation of costs other than attorney fees is appropriate, provides in pertinent part, "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." The Sixth Circuit has held that the rule creates a presumption in favor of awarding costs to the prevailing party, but grants trial courts discretion to deny costs or to reduce the amount of an award of costs. See Singleton v. Smith, 241 F.3d 534, 539 (6th Cir. 2001) (quoting White White, Inc. v. American Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986)). In Singleton, the Sixth Circuit also identified "several factors a losing party may put forward that may be sufficient to justify a district court in overcoming the presumption in favor of a cost award, including the losing party's good faith, the difficulty of the case, the winning party's behavior, and the necessity of the costs." Id. (citing White White, 786 F.2d at 732-33). Indigency, although a relevant factor to consider in deciding whether to award or deny costs, does not provide an automatic basis for denying a motion to tax costs. Id.
Defendant seeks to recover a total of $2,020.38. This amount may be further broken down into three categories of costs, which the Sixth Circuit created in Singleton, and which comprise: category one costs, or those incurred by the defendant(s) before the effective date of the Prison Litigation Reform Act (PLRA) or March 1, 1997; category two costs, or those incurred by the defendant(s) after the PLRA but made necessary before the effective date; and category three costs, which are those made necessary and incurred after the effective date of the PLRA. Specifically, then, Defendant seeks: $34.80 as category one costs for copying; $1,290.10 in category two costs, including $418.30 for copies and $871.80 for depositions; $645.48 in category three costs, including $46.70 for copies and $598.78 for depositions; and also a total of $50.00 in attorney fees, including $15.00 for attending six depositions, $15.00 for filing three motions for judgment and other proceedings, and $20.00 on final judgment.
Singleton indicates that the categories of costs may be relevant in a situation where costs are awarded and a plaintiff seeks to challenge the award on the basis of indigency pursuant to Weaver v. Toombs, 948 F.2d 1004 (6th Cir. 1991). In such a circumstance, the plaintiff would be permitted to challenge first and second category costs, but would be fully responsible for third category costs. See Singleton, 241 F.3d at 544. Because it is recommenced that no costs be awarded in this case, this issue will not be addressed further.
Plaintiff, who is no longer represented by his trial counsel, has not filed a response to the motion to tax costs. Nonetheless, several considerations weigh in favor of denying Defendant's motion to tax costs. First, under the factors set out in Singleton, the Court may consider the good faith of the plaintiff.
1. Plaintiff's Good Faith and Closeness of the Case
Here, there is no indication that Plaintiff's lawsuit was not brought in good faith. He filed a complaint asserting claims against several defendants. One factor that suggests his good faith is the fact that at least part of his complaint survived three motions to dismiss and was presented to a jury. Another factor under Singleton which weighs against an award of costs to Defendant is the difficulty, or closeness, of the case.
At trial, the jury found Plaintiff's version of facts to be true, concluding that Defendant had threatened Plaintiff's life and later instructed the officer in the gun tower to shoot Plaintiff if he moved. Plaintiff lost because the jury, without much direction, was allowed to find that these actions by Defendant did not shock the conscience or constitute an egregious abuse of government power.
Because Plaintiff's good faith in bring this lawsuit and the closeness of the case are factors that this Court must consider in the exercise of its discretion concerning an award of costs, it is appropriate to evaluate whether the jury's second finding is at least one upon which reasonable minds could differ, or whether, indeed, it may be that this finding is wrong because no reasonable fact finder could reach such a conclusion on these facts once it resolved the disputed issues of fact in Plaintiff's favor, as the jury did in its answer to question one. Obviously, if Plaintiff might have, or should have won, then these first two Singleton factors would suggest that it is inappropriate for costs to be awarded against him.
2. Shocks the Conscience Standards
While federal courts have been reluctant to expand the "shocks the conscience" concept of substantive due process in recent years and have narrowed its application, see, e.g., Albright v. Oliver, 510 U.S. 266, 271-73 (1994) (plurality opinion of Rehnquist, C.J.); Graham v. Connor, 490 U.S. 386 (1989), it has received a continuing limited endorsement of six, and probably seven justices, in County of Sacramento v. Lewis, 523 U.S. 833 (1998). In that case, in a concurring opinion joined by Justice O'Connor, Justice Kennedy, stressed "the objective character of our substantive due process analysis," notwithstanding that the "`shocks the conscience' test first articulated in Rochin v. California, 342 U.S. 165, 172-73 (1952),. . . . has the unfortunate connotation of a standard laden with subjective assessments." Lewis, 523 U.S. at 856-57 (Kennedy, J., concurring) Justices Scalia and Thomas, the Court's two adamant critics of the use of the "shocks the conscience" substantive due process standard, decry it for allowing judges "to overrule democratically adopted policy [of legislatures or executive officials] . . . on the ground that it shocks their [unelected] consciences," which in their opinion "is not judicial review but judicial governance." Lewis, 523 U.S. at 865 (Scalia, J., concurring) (emphasis in original). This statement suggest that Justices Scalia and Thomas believe that it is the judge, not the jury, whose conscience is the relevant one against which to measure the challenged conduct.
Justice Stevens was not among the six justices making up the plurality, but not because he is opposed to a limited continued use of substantive due process entailing a "shocks the conscience" analysis.
The concerns of Justices O'Connor, Scalia, and Thomas, suggest that the risks of unrestrained and unelected subjectivity — the antithesis of a rule of law — would be far greater if the nearly unreviewable personal sentiments of jurors are added to the mix in the application of this substantive due process standard. While courts have routinely submitted this standard to juries, see, e.g., Walker v. Bain, 257 F.3d 660, 671-73 (6th Cir. 2001); United States v. Walsh, 194 F.3d 37 (2d Cir. 1999); Boveri v. Town of Saugus, 113 F.3d 4, 6-7 (1st Cir. 1997), much can be said that this should be accompanied by judicial guidance, if not preempted totally by judges once a jury has resolved all the material disputed issues of fact, as is often done in the qualified immunity area under Harlow v. Fitzgerald, 457 U.S. 800. In Mason v. Stock, 955 F. Supp. 1293, 1308-09 (D. Kan. 1997), the court held that "the `shocks the conscience' determination is not a jury question." Indeed, the articulation of the contextual standards used to evaluate substantive due process — "an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them" — are all factors which judges, given their training and experience, are far more adept at evaluating than lay persons on a jury.
This is particularly true in a custodial setting, which was involved in this case. While the "shocks the conscience" and "egregious abuse" standards of substantive due process will have little application in prisoner retaliation claims after Thaddeus-X, these standards will have application for pre-trial criminal detainees in their post-arrest and pre-conviction period. See, e.g., Fuentes v. Wagner, 206 F.3d 335, 348-49 (3d Cir. 2000); Redman v. County of San Diego, 942 F.2d 1435, 1442 (9th Cir. 1991). Unlike a determination of "community standards" in an obscenity case, in which jurors have a special competence and important role in defining the contours of such standards, judges have substantially more training and experience in determining which abuses of government power by custodial officers are ordinary and which are egregious. Federal judges also have substantially more experience with the security, penological interests, and administration of corrections and custodial facilities, and are far better situated than lay jurors to determine what is shocking to the conscience in such a setting. Having judges make such determinations based on the facts as found by the jury would allow such mixed questions of law and fact to face greater scrutiny by appellate review, particularly in cases where the judge has provided a written justification in a summary judgment opinion or otherwise. This procedure, allowing for better review by the collective wisdom of appellate judges, would increase the likelihood that such determinations of what conduct "shocks the conscience" are not based on subjective whim, but share the more "objective" character that Justice O'Connor anticipates.
County of Sacramento v. Lewis, 523 U.S. at 847 n. 8.
The County of Sacramento v. Lewis case notes that substantive due process has evolved to protect individuals against arbitrary exercise of governmental power, with concerns similar to those of procedural due process. Yet, it is triggered at the extremes of "egregious official conduct" where there is an "exercise of power without any reasonable justification in the service of a legitimate governmental objective" and where the official's actions violate the "decencies of civilized conduct." Lewis, 523 U.S. at 846. This standard protects individuals from government officials "abusing [their] power, or employing it as an instrument of oppression." Id. The "shocks of the conscience" standard can be met not only by intentional action, but in certain contexts not involving the need for decisions made in haste and under pressure, it can create constitutional liability for acts of deliberate indifference. Although these cases involving "midlevel fault," which is less than intentional but more than mere negligence, involve "a matter for closer calls," County of Sacramento v. Lewis makes it clear that intentional abuses of governmental power are more easily captured under this standard: "conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." Id. at 849. Even in the emergency setting where the need for quick decisions made under pressure allows a government official to act with deliberate indifference to the safety of others without constitutional liability, liability will attach under the substantive due process standard if the conduct is undertaken "maliciously and sadistically for the very purpose of causing harm." Id. at 853 (discussing use of force in a prison riot).
3. Application of the Shocks the Conscience Standards
Here, there is no claim involving any emergency, nor any need for split second judgments and fast action. Nor is there a claim of deliberate indifference, recklessness, or gross negligence. Instead, this case involves a deliberate action by Defendant that was clearly intended to cause feelings of anxiety, fear, and forced subservience in Plaintiff. Thus, once the critical fact questions in dispute have been resolved, the case is not one involving midlevel fault or "a closer call," but rather, is "the sort of official action most likely to rise to the conscience-shocking level." Id. at 849.
The jury resolved the disputed fact issues and determined that Defendant Freeburn made a threat to Plaintiff Johnson to have his "black ass killed." The jury found that Plaintiff then threatened to report that Defendant Freeburn had made this threat, and later sought to report this incident to the counselor. Shortly thereafter, Defendant Freeburn gave, or appeared to give, the instructions to the gun tower, stating, according to the jury's finding, "If he moves, shoot him."
It may be that the tradition of generally giving "shocks the conscience" issues to the jury will continue notwithstanding many arguments against it. Nonetheless, on facts such as those in this case, a judge would have been warranted in directing the jury that after ruling for Plaintiff on the disputed factual questions (answered in jury question 1), the gratuitous threat or instruction to armed guards to have an inmate shot if he moves — given by a corrections officer who earlier that day threatened to have the inmate killed, and given for no legitimate peonological purpose, but to retaliate against the inmate for reporting to authorities the correction officer's earlier threat on the inmate's life — does "shock the conscience" as a matter of law. Again, such action is not "midlevel fault" or "a matter for closer calls." It could be argued that no reasonable factfinder could deny that such actions are "egregious official conduct," that they were an "exercise of power without any reasonable justification in the service of a legitimate governmental objective," that they violate the "decencies of civilized conduct" even in a prison setting, or that they were undertaken "maliciously and sadistically for the very purpose of causing harm" in retaliation for the inmate's exercise of a constitutionally protected right. Because on these facts it could be argued that Defendant Freeburn's actions "shocked the conscience" as a matter of law, Plaintiff's good faith in bringing the action is clear, and this warrants against imposing costs upon him.
4. Plaintiff's Indigency
Finally, Plaintiff sought and received in forma pauperis status to proceed with this lawsuit. His indigency is an additional factor, when considered under the totality of circumstances in this case, that weighs against an award of costs. Considering all of these factors, it seems that this is exactly the type of case in which the Court should exercise its discretion to deny an award of costs. Plaintiff's case appears to have been particularly strong, especially in light of the jury's acceptance of the factual basis for the lawsuit and conclusion that Defendant did, in fact, engage in the alleged wrongful conduct.
B. Attorney Fees
Defendant also requests attorney fees. Under Federal Rule of Civil Procedure 54(d)(2)(B), a motion seeking attorneys' fees must be filed no later than fourteen days after the entry of judgment. Judgment was entered on July 24, 2001, and Defendant did not file this motion until September 28, 2001, or more than fourteen days past the date judgment was entered. This request is therefore untimely.
Defendant requests $50.00, which includes $15.00 for attending six depositions, $15.00 for filing three motions for judgment and other proceedings, and $20.00 on final judgment. The $20.00 on final judgment is actually a docketing fee. The total amount of attorneys' fees is $30.00.
III. RECOMMENDATION
For the reasons stated above, IT IS RECOMMENDED that Defendant's motion for taxation of costs (docket # 132) be DENIED.
Any objections to this Report and Recommendation must be filed within ten (10) days of its service. 28 U.S.C. § 636 (b)(1); E.D. Mich. LR 72.1(d)(2). Failure to file objections within the specified time constitutes waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Ivey v. Wilson, 832 F.2d 950, 957-58 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.