United States District Court, N.D. Illinois, Eastern Division
KENNETH E. SMITH (K-54173), Plaintiff,
WEXFORD HEALTH SOURCES, INC., DR. SALEH OBAISI, and TARRY WILLIAMS, Defendants.
MEMORANDUM OPINION AND ORDER
Smith brought this suit under 42 U.S.C. § 1983 alleging
that Stateville Correctional Center Warden Tarry Williams and
Dr. Saleh Obaisi, Stateville's now-deceased medical
director, were deliberately indifferent to his knee pain, and
also that Dr. Obaisi's employer, Wexford Health Sources,
Inc., had a policy of sacrificing patient care to save money.
Doc. 29. The court granted Defendants' summary judgment
motions, Docs. 98-99 (reported at 2017 WL 5464367 (N.D. Ill.
2017)), and entered judgment, Doc. 100. Pursuant to Federal
Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920,
Defendants together seek some $1, 600 in costs. Docs. 101,
104. Smith argues that he is indigent and therefore should
not be subjected to a cost award. Doc. 108 at 3.
prevailing party “presumptively receives the costs of
litigation and it is the losing party's burden to
overcome this presumption.” Johnson v. Target
Corp., 487 Fed.Appx. 298, 301 (7th Cir. 2012). But
“it is within the discretion of the district court to
consider a plaintiff's indigenc[e] in denying costs under
Rule 54(d).” Rivera v. City of Chicago, 469
F.3d 631, 634 (7th Cir. 2006) (internal quotation marks
omitted). Rivera directs district courts to
undertake a two-step analysis when presented with a claim of
First, the district court must make a threshold factual
finding that the losing party is incapable of paying the
court-imposed costs at this time or in the future. The burden
is on the losing party to provide the district court with
sufficient documentation to support such a finding. This
documentation should include evidence in the form of an
affidavit or other documentary evidence of both income and
assets, as well as a schedule of expenses. Requiring a
non-prevailing party to provide information about both
income/assets and expenses will ensure that district courts
have clear proof of the non-prevailing party's dire
financial circumstances. Moreover, it will limit any
incentive for litigants of modest means to portray themselves
Second, the district court should consider the amount of
costs, the good faith of the losing party, and the closeness
and difficulty of the issues raised by a case when using its
discretion to deny costs. No. one factor is determinative,
but the district court should provide an explanation for its
decision to award or deny costs.
Id. at 635-36 (citations and internal quotation
the first step, Smith is 42 years old and currently
imprisoned at Stateville. See Illinois Department of
Corrections Offender Search for Kenneth Smith, K54173,
(last visited Apr. 17, 2018). He has been incarcerated more
or less continuously since 1997, and his release date is in
2068, ibid., meaning that he is highly unlikely to
have much, if any, of a post-prison life.
court granted Smith leave to proceed in forma
pauperis in June 2015. Doc. 7. For the court's use
in connection with Defendants' requests for costs, Smith
submitted an updated in forma pauperis application.
Docs. 112, 113. The application indicates that Smith receives
$10 per month from Stateville and that his prison trust fund
balance is $8.55. Doc. 113 at 1, 5. Although he lists no
other assets, Smith over the past six months has received
approximately $130 per month from people outside the prison,
which he spends at the commissary. Id. at 6; see
also Doc. 3 at 4 (nearly the same monthly deposits for
an earlier six-month period). Smith has been paying the
filing fee for this suit out of his prison trust fund. Doc.
113 at 6-7.
unfortunate reality is that Smith's income-generating
capabilities are and will continue to be severely limited
while he is imprisoned, and that they are not likely to
materially improve, as Smith is serving out what likely will
turn out to be a life sentence. Smith does receive a modest
amount of money from outside sources, but those sums do not
materially improve his financial situation. Given these
circumstances, Smith has sufficiently established that he is
“incapable of paying the court-imposed costs at this
time or in the future.” Rivera, 469 F.3d at
635 (internal quotation marks omitted); see also Mathis
v. Carter, 2017 WL 2243040 (N.D. Ill. May 23, 2017)
(declining to assess costs against a losing party who was
incarcerated and indigent); Shultz v. Dart, 2016 WL
3227276 (N.D. Ill. June 13, 2016) (same).
the second step of the analysis, while Defendants'
requested costs are by no means astronomical, they still
would pose a substantial hardship to Smith, whose present
income is trivial and who is highly unlikely to have any
post-incarceration income-generating capabilities. It is true
that Smith did not respond to Defendants' summary
judgment motions, despite being given ample opportunity to do
so. Docs. 86, 91, 99. But his case was not frivolous, and his
response to Defendants' bills of costs avers that he
suffers from “psychological disorders that ...