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WASHINGTON v. VILLAGE OF RIVERSIDE ILLINOIS

August 1, 2003

MANUEL WASHINGTON AND DANIEL PARKER, PLAINTIFFS, VS. VILLAGE OF RIVERSIDE ILLINOIS, A MUNICIPAL CORPORATION, OFFICER JEFFREY SIMPSON, OFFICER MARCUS YANEZ, OFFICER LEO KOTOR JR., OFFICER WILLIAM NIESLUCHOWSKI, SGT. TOM WEITZEL, VILLAGE OF LYONS ILLINOIS, A MUNICIPAL CORPORATION OFFICER JOHN MORELLI, OFFICER FRANK TENTONICO., VILLAGE OF BROOKFIELD ILLINOIS, A MUNICIPAL CORPORATION, VILLAGE OF BERWYN ILLINOIS, A MUNICIPAL CORPORATION, DEFENDANTS


The opinion of the court was delivered by: Arlander Keys, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Currently before the Court is the defendants' Motion for Related Nontaxable Expenses. For the reasons set forth below, the Court grants the motion but disallows some of the costs the defendants seek.

BACKGROUND

Manuel Washington and Daniel Parker sued the villages of Riverside, Brookfield, and Lyons, and various police officers employed by those villages, for injuries allegedly suffered during a routine traffic stop that went awry; the stop turned [ Page 2]

into a high speed chase and ended with the plaintiffs' arrest. In their complaint, the plaintiffs alleged that the defendants used excessive force in arresting them, battered them, falsely arrested and imprisoned them, and otherwise violated their constitutional rights in a variety of ways. The Court found that the evidence did not support the plaintiffs' claims, and, on March 13, 2003, granted summary judgment in favor of the defendants. See Washington v. Village Of Riverside, No. 01 C 7438, 2003 WL 1193347 (N.D. Ill. March 13, 2003). The plaintiffs did not appeal that ruling.

On June 11, 2003, the defendants filed a Motion for Related Nontaxable Expenses, seeking reimbursement of expenses in the amount of $4,115.70. Specifically, the defendants seek reimbursement for the following expenses: a) $812.80 for costs associated with part 1 of Manuel Washington's deposition; b) $383.40 for costs associated with part 2 of Washington's deposition; c) $329.30 for costs associated with David Parker's deposition; d) $547.20 for costs associated with Dr. Cortez Tucker's and Sylvia Jurisch's depositions; e) $733.00 for costs associated with the transcription of five hours of police videotape and booking room videotape; and f) $1,310.00 for costs associated with the creation of a CD-ROM containing video and audio used to support the defendants' motion for summary judgment. See Defendants' Motion for Related Nontaxable Expenses [ Page 3]

¶ 2 The plaintiffs urge the Court to deny the motion, and award no costs, based on their inability to pay. Plaintiffs' Response ¶ 6.

DISCUSSION

As an initial matter, the Court must clarify what rules apply to this motion. In the caption of their motion, the defendants reference Local Rule 54.3, which deals with attorney's fees and related non-taxable expenses and supplements Federal Rule of Civil Procedure 54(d)(2), But based on the substance of the defendants' request, the Court assumes that the motion is covered by Rule 54(d)(1), which deals with costs other than attorney's fees. This subsection is supplemented by Local Rule 54.1, not Local Rule 54.3. The Court's assumption is buttressed by the fact that the defendants, in their reply brief, quote language that they claim comes from Rule 54, but which actually comes from Rule 54(d)(1), Therefore, the defendants' extensive arguments regarding their attempts to meet and confer with plaintiffs prior to filing the motion, while relevant to an analysis under Local Rule 54.3, are irrelevant to the Court's analysis herein.

Under Federal Rule of Civil Procedure 54(d)(1), "costs other than attorney's fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d). The Seventh Circuit has interpreted the rule to [ Page 4]

provide that "the prevailing party is prima facie entitled to costs and it is incumbent on the losing party to overcome the presumption." McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994). This presumption is difficult to overcome, and the court must award costs unless the losing party establishes a reason to deny costs. Weeks v. Samsung Heavy Indus, Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997). In general, a court may deny costs for two reasons: 1) the losing party is unable to pay; and 2) the prevailing party engaged in misconduct. Id.

To justify the denial of costs based on inability to pay, a losing party must demonstrate that he is indigent, not merely that he has limited financial resources. Denson v. Northeast Illinois Regional Commuter Railroad Corp., No. 00 C 2984, 2003 WL 21506946, at *1 (N.D. Ill. June 27, 2003)(citations omitted). In addition, the losing party must show both that he is presently unable to pay costs, and that he will likely be unable to pay costs in the future. Id. The losing party must establish indigence with specific evidence, such as affidavits or other documentary evidence. McGill, 18 F.3d at 459; Denson, 2003 WL 21506946, at *1. Absent such evidence, the Court may not deny costs on the basis of indigence. Wardell v. City of Chicago, No. 98 C 8002, 2002 WL 31248531, at *2 (N.D. Ill. Oct 4, 2002).

Here, the only evidence of the plaintiffs' indigence is plaintiffs' counsel's bald assertion that neither plaintiff has [ Page 5]

the financial resources to pay the expenses the defendants seek. Counsel states simply, "it appears that neither plaintiff has the financial ability to pay the expenses." Plaintiffs' Response ¶ 5. Counsel also states that the plaintiffs have been inaccessible since this Court entered summary judgment in favor of the defendants. Id. ¶¶ 2-4. Specifically, on the issue of inaccessibility, counsel asserts that she has tried to contact plaintiff Washington on numerous occasions, but that she has been unsuccessful. Id. ¶ 2. Counsel also states that all telephone numbers formerly belonging to Washington have been disconnected. Id. As a result, counsel states that she believes that Washington no longer resides at his last known address. Id. Regarding Daniel Parker, counsel states that Parker is incarcerated, will be for a number of years, and cannot be contacted. Id. ¶ 3. On the issue of indigence, counsel states that Washington paid her a nominal retainer fee, ...


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