1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AARON RAISER, Case No.: 19-CV-751-GPC

12 Plaintiff, ORDER REGARDING COSTS 13 v.

14 SAN DIEGO COUNTY, et al., [ECF Nos. 234, 236, 237] 15 Defendants. 16 Defendants, as the prevailing party in the underlying action, filed a bill of costs on 17 October 4, 2021. ECF No. 224. Plaintiff filed an Opposition and Request for No Costs on 18 October 15, 2021. ECF No. 230. On October 25, 2021, the Clerk conducted a telephonic 19 hearing to tax costs in this matter, which Plaintiff did not attend. ECF No. 235. On that 20 same day, Plaintiff filed an Ex Parte Application asking, inter alia, for this Court to 21 address Plaintiff’s Request for No Costs (ECF No. 230). ECF No. 234. On October 27, 22 2021, the Clerk of Court taxed costs in favor of Defendant San Diego County in the 23 amount of $742.00. ECF No. 235. On November 3, 2021, Plaintiff filed a further Ex 24 Parte Application that the Court rule on the request for no costs. ECF No. 236. On 25 November 5, 2021, Plaintiff filed another Ex Parte Application for Order requesting, 26 inter alia, that this Court review Plaintiff’s filings without any input from judicial staff. 27 1 ECF No. 237. Having considered Plaintiff’s filings, and for good cause appearing, the 2 Court GRANTS Plaintiff’s request for no costs and DENIES Plaintiff’s remaining 3 requests. 4 I. RELEVANT BACKGROUND 5 This Court has already summarized the factual background underlying Plaintiff’s 6 suit in detail elsewhere, and will not reiterate its entirety here. See ECF No. 200, Order 7 Granting Summary Judgment in Favor of Defendants. The sole remaining issue before 8 this Court is the taxation of costs. 9 Relevant to this issue, Plaintiff first filed an Ex Parte Application for an Order 10 declaring that Plaintiff would not have to pay costs on July 24, 2021. ECF No. 202. On 11 October 12, 2021, the Court denied the Application for an Order as premature because no 12 costs had yet been taxed. ECF No. 211. Plaintiff then requested that the issue of costs be 13 continued until after the Court had decided his then-pending Motions for Reconsideration 14 (ECF Nos. 206, 207). ECF No. 212. The Court granted this request and denied Plaintiff’s 15 Motions for Reconsideration on October 12, 2021. ECF No. 213. On October 4, 2021, 16 Defendant San Diego County submitted its bill of costs in the amount of $1,022.25 to 17 cover fees for printed or electronically stored deposition transcripts. ECF No. 224. After 18 the parties briefed the issue, the Clerk of Court conducted a telephonic hearing to tax 19 costs, which Plaintiff did not attend, and subsequently issued an Order Taxing Costs in 20 favor of Defendant San Diego County in the amount of $742.00. ECF No. 235. 21 Plaintiff argues that he has limited financial resources, as evidenced by the fact that 22 he is proceeding in forma pauperis and is homeless. ECF No. 236-1 at 25. Plaintiff 23 further argues that there is an economic disparity between the parties due to the County’s 24 superior financial resources, evidenced by the fact that the County could afford to hire a 25 court reporter and videographer and Plaintiff could not. Id. Plaintiff also attached a 26 declaration as to his income and expenses, which asserts that Plaintiff is self-employed 27 1 and has a monthly average income of approximately $1050.00, and had an income of 2 $940 in October. ECF No. 236-2 at 1. Plaintiff receives about $270 in food stamps per 3 month. Id. Plaintiff reports the following assets: a Dodge Dart vehicle worth about $1500, 4 a laptop computer “worth about $20 resale” and another spare laptop computer “worth 5 about $80 resale.” Id. Plaintiff is homeless and lives out of his Dodge Dart. Id. at 2. 6 Plaintiff estimates that his expenses average around $1125 per month, which includes 7 around $600 per month for food, $120 per month for gasoline, $155 per month for car 8 expenses and insurance, $50 per month for his cell phone, $100 per month for medical 9 and dental expenses, and $100 for miscellaneous expenses. Id. Plaintiff’s expenses each 10 month therefore meet or exceed his monthly income. Id. Plaintiff reports that he has 11 savings of about $1150, and has no other source of money and no other material assets. 12 Id. Finally, Plaintiff notes that, among other upcoming expenses, he has about $600 13 worth of anticipated dental expenses, $2500 in anticipated car repair expenses, and needs 14 cancer screening, which he estimates will cost about $800. Id. 15 II. DISCUSSION 16 At the outset, the Court notes that Plaintiff’s pending motions reiterate many of the 17 same arguments on the merits that Plaintiff raised in his Motions for Reconsideration 18 (ECF Nos. 206, 207). To the extent that the Court has already addressed these arguments 19 in its previous Order (ECF No. 226) and at the hearing held on October 1, 2021 (ECF No. 20 223), this Court will not further entertain such arguments. This includes Plaintiff’s 21 requests that this Court “listen to the audio recordings from summary judgment” and re- 22 read the summary judgment briefing. ECF No. 234-1 at 2. As this Court has previously 23 explained, Plaintiff’s recourse now lies with the Ninth Circuit. See ECF No. 232 (denying 24 ECF No. 227 Ex Parte Application, which raised substantially similar arguments). 25 Plaintiff’s disagreement with the outcome in his case does not entitle Plaintiff to file 26 duplicative motions requesting procedurally improper and unavailable relief. Contrary to 27 1 Plaintiff’s repeated and unsupported assertions, this Court has paid careful heed to 2 Plaintiff’s filings and arguments, and has furthermore been consistently lenient in 3 entertaining ex parte applications by Plaintiff that might otherwise have been barred.1 See 4 ECF No. 226 fns. 1, 7 (allowing Plaintiff to proceed with motions despite noncompliance 5 with Local Rules). Given this Court’s previous rulings on Plaintiff’s Motions to 6 Reconsider, the only remaining issue in this case is the matter of costs. Plaintiff’s 7 requests not relating to costs are therefore DENIED. 8 A. Legal Standard Regarding Costs 9 Federal Rule of Civil Procedure (“Rule”) 54(d)(1) provides that generally, costs 10 other than attorney’s fees shall be allowed to the prevailing party. Fed. R. Civ. Proc. 11 54(d)(1). The rule therefore creates a presumption in favor of awarding costs to 12 prevailing parties, but a district court has discretion to refuse to award costs. Ass’n of 13 Mexican-American Educ. v. State of Cal.,

, 591 (9th Cir. 2000) (en banc). 14 However, a district court must specify its reasons for refusing to award costs. Id. 15 “Appropriate reasons for denying costs include: (1) the substantial public importance of 16 the case, (2) the closeness and difficulty of the issues in the case, (3) the chilling effect on 17 future similar actions, (4) the plaintiff’s limited financial resources, and (5) the economic 18 disparity between the parties. This is not an exhaustive list of good reasons for declining 19 to award costs, but rather a starting point for analysis.” Escriba v. Foster Poultry Farms, 20

21 22 1 The Court directly and definitively addressed the issue of its review at the October 1, 2021 hearing. The Court stated that “[u]ltimately, that is the practice of this Court, to 23 review the moving papers, the responding papers, replies. I will consult with my law 24 clerks, but ultimately, the fact that the orders bear my signature are certification that this Court has reviewed the files, reviewed the filings, the applicable law, and has made the 25 ultimate decision that is rendered. That signature, then, affirms and confirms to the Ninth 26 Circuit Court of Appeals that the decision has been made by this Court.” Hr’g Tr. at 2:21- 3:3. See Hr’g Tr. at 3:4-13 (discussing the Court’s personal review of Plaintiff’s filings). 27 1 Inc.,

(9th Cir. 2014) (internal quotation marks omitted) (citing 2 Ass’n of Mexican-American Educ., 231 F.3d at 591). A losing party need not demonstrate 3 that all five factors weigh against imposing costs in order for the district court to properly 4 deny costs to the prevailing party. Draper v. Rosario,

(9th Cir. 5 2016). “Costs are properly denied when a plaintiff would be rendered indigent” if forced 6 to pay them. Escriba, 743 F.3d at 1248 (quoting Stanley v. Univ. of S. Cal.,

(9th Cir. 1999). 8 B. Plaintiff’s Ability to Pay Costs 9 The Court finds that the fourth and fifth Escriba factors weigh against imposing 10 costs against Plaintiff.2 As to the fourth factor, Plaintiff’s limited financial resources are 11 apparent from his declaration. ECF No. 236-2. Furthermore, as Plaintiff notes, the fact 12 that Plaintiff is homeless and lives out of his car is at the center of the underlying action. 13 Id. at 1. Given that Plaintiff’s monthly expenses exceed his monthly income, and that 14 taxed costs of $742 would render Plaintiff further indigent, the Court finds that the fourth 15 Escriba factor weighs against imposing costs against Plaintiff. 16 Significant economic disparity also exists between the parties. It is clear that 17 Defendant San Diego County, as a public entity, has significantly greater resources than 18 Plaintiff. See Goolsby v. County of San Diego, No. 17-cv-00564-WQH-NLS,

6361876, at *6 (S.D. Cal. Oct. 29, 2020) (finding that Defendant County’s greater 20 economic resources weighed against awarding it costs); Berry v. City & Cnty. of San 21 Francisco,

, at *3 (N.D. Cal. Oct. 29, 2018) (noting it is undisputed 22 that Defendant City and County has “vastly greater resources” than Plaintiff). While the 23

24 2 The Court finds that Plaintiff has failed to offer convincing arguments as to the public 25 importance or closeness of the case, and therefore does not discuss these first two Escriba 26 factors in detail. As to the closeness of the case in particular, Plaintiff’s arguments here largely reiterate arguments that were rejected in his Motions for Reconsideration. 27 1 Court notes that the resources of the County are certainly not unlimited, the fact remains 2 that a wide disparity exists between the financial resources of Plaintiff and Defendant, 3 and therefore, the fifth Escriba factor also weighs against imposing costs against 4 Plaintiff. 5 The third Escriba factor, the potential chilling effect on future similar cases, is a 6 closer call. Plaintiff addresses this factor only briefly, arguing that “[a]s to the chilling 7 effect on future similar actions it [sic] that should go in Plaintiff’s favor as to penalize 8 people for bringing a legitimate lawsuit over their civil rights would certainly chill others 9 from standing up for their rights also.” ECF No. 236-1 at 25. On the one hand, courts in 10 the Ninth Circuit have found that claims under the Fourth Amendment might involve the 11 risk of a chilling effect to future civil rights litigants where indigent plaintiffs are forced 12 to pay an award of costs. See Berry,

, at *2 (collecting cases). 13 However, Berry and its cited cases all involved awards of costs ranging from 14 approximately $8,000 to $23,000, and many of the cited cases in fact found that awards 15 of costs within that range would not have a chilling effect on future civil rights litigants. 16 Ultimately, the Berry court chose not to impose costs of $13,329.48 against Plaintiff, in 17 part because of a potential chilling effect on future similar cases.

On the other hand, 18 this Court has also previously held that costs of $3,119.58 would not inflict an 19 undesirable chilling effect on future civil rights litigants, even when imposed against an 20 indigent prisoner. Williams v. Gore, No. 15-cv-0654-AJB-PCL,

, at *3 21 (S.D. Cal. Nov. 1, 2017) (“While there is no bright-line rule defining what precise 22 amount of costs would produce a chilling effect, the amount of costs here does not shock 23 this Court’s judicial conscience.”). In Plaintiff’s case, the Clerk of Court taxed costs of 24 $742.00, an amount far below the costs discussed in Williams and its cited cases. 25 However, the Court recognizes that “[e]ven modest costs can discourage potential 26 27 1 || plaintiffs who ... earn low wages.” Berry,

, at *2 (quoting Escriba, 2 || 743 F.3d at 1249). 3 Even though the third Escriba factor does not clearly weigh for or against the 4 ||imposition of costs in Plaintiff's case, the fourth and fifth Escriba factors plainly weigh 5 || against the imposition of costs. Recognizing that a losing party need not prove that all 6 || five Escriba factors weigh against imposing costs in order for a district court to deny 7 || costs to the prevailing party, the Court therefore concludes that Plaintiff has sufficiently 8 ||rebutted the presumption in favor of awarding costs to Defendant County of San Diego 9 || because two of the five Escriba factors weigh heavily against awarding costs to the 10 || County. 11 CONCLUSION 12 The Court HEREBY GRANTS Plaintiffs Motion to Re-Tax Costs (ECF No. 236). 13 || The Court declines to award costs to Defendant County of San Diego in this action. The 14 || Order of the Clerk of the Court Taxing Costs (ECF No. 235) is VACATED. All other 15 || pending motions and applications by Plaintiff before this Court are DENIED. 16 IT IS SO ORDERED. 17 |}Dated: November 10, 2021 <=

19 United States District Judge 20 21 22 23 24 25 26 27 28 19-CV-751-GPC