Whitfield v. Scully

• Decision Date: 01 August 1999
• Docket Number: Docket No. 98-2933
• Parties: (2nd Cir. 2001) JOHN WHITFIELD, Plaintiff-Appellant, v. CHARLES SCULLY, Former Supt.; GAIL HAPONIK; C.O. TORNABENE; C.O. C. MITCHELL; JOHN AND JANE DOES, Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 264

241 F.3d 264 (2nd Cir. 2001)

JOHN WHITFIELD, Plaintiff-Appellant, v. CHARLES SCULLY, Former Supt.; GAIL HAPONIK; C.O. TORNABENE; C.O. C. MITCHELL; JOHN AND JANE DOES, Defendants-Appellees.

Docket No. 98-2933

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: December 9, 1999

Decided: February 27, 2001

Appeal from a judgment of the United States District Court for the Southern District of New York (Chin, J.), denying plaintiff's motion to disallow the taxation of costs against him.

Affirmed and remanded with instructions.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] CHARLES D. COLE, Jr., New York, New York (Newman Fitch Altheim Myers, P.C., New York, New York, of counsel), for Plaintiff-Appellant.

JOHN WHITFIELD, Ossining, New York, filed a brief as pro se Plaintiff-Appellant.

SUSAN B. EISNER, Law Apprentice, New York, New York (Robert A. Forte, Deputy Solicitor General, Michael S. Belohlavek, Assistant Solicitor General, Eliot Spitzer, Attorney General of the State of New York, New York, New York, of counsel), for Defendants-Appellees.

Before: CARDAMONE, CABRANES, Circuit Judges, and KEENAN^*, District Judge.

CARDAMONE, Circuit Judge:

The subject matter of this appeal involves the payment by appellant, who is incarcerated, of $3.10 out of his weekly income of $7.75 to defray the costs of unsuccessful litigation against prison officials arising from a prison altercation with a fellow inmate. Despite the small amount of money involved, the appeal presents important issues for us to resolve. Congress, in recent amendments to the in forma pauperis statute, aimed to reduce the volume of meritless litigation flooding federal courts by making payment of filing fees mandatory. This statute also provides a mandatory mechanism for collecting costs when assessed by courts against prisoners who are made to pay the consequences should they lose. But when, as here, a prisoner has only a small amount of disposable income available, any judgment for costs looms large since, without a little money, a prisoner is powerless to satisfy his barest wants.

Recognizing this practical consideration, Congress decreed that mandated deductions taken from a prisoner's account for costs be limited to 20 percent of the prisoner's weekly earnings. But, when appellant was taxed $595.96 in the district court for deposition costs and $711.40 in the court of appeals for printing costs, defendants treated each judgment as a separate item and levied 20 percent for each, amounting to a total deduction of 40 percent. We think this manner of deduction violates the statute, and that defendants may recover only 20 percent of appellant's weekly earnings toward the total amount owed. This result fairly construes the statutory limit because a heavier deduction might otherwise deprive appellant of his right of effective access to the courts, as well as of his last farthing.

John Whitfield (plaintiff or appellant), an inmate in the custody of the New York Department of Correctional Services (Department), appeals an order entered October 5, 1998 in the United States District Court for the Southern District of New York before Judge Denny Chin. The order concludes that taxing litigation costs against plaintiff, payable to defendants former Superintendent Charles Scully, Deputy Superintendent Gail Haponik, and Correctional Officers Jack Tornabene and Craig Mitchell, is appropriate. Whitfield contends on appeal that it was an abuse of discretion to authorize the taxation of costs against him, for the reason that such authorization did not comply with the applicable rules of procedure or take into proper equitable account the meager income he earns per week while incarcerated. Appellant further argues that the Department's recoupment of 40 percent of that weekly income for repayment of the taxable costs violates the cost collection provisions of the in forma pauperis statute, 28 U.S.C. §1915 (1994 & Supp. IV 1999).

BACKGROUND

On May 6, 1994 Whitfield, an inmate at Green Haven Correctional Facility, filed this suit pro se, pursuant to 42 U.S.C. §1983, in the Southern District of New York. In his complaint plaintiff alleged that defendants Scully, Haponik, Tornabene, and Mitchell violated his Eighth Amendment rights by failing to protect him from another prison inmate and, at a disciplinary hearing arising from an earlier altercation with that inmate, violated his Due Process rights. Plaintiff was granted permission to proceed in the litigation in forma pauperis.

The district court granted defendants' motion for summary judgment and dismissed Whitfield's complaint. See Whitfield v. Scully, No. 94 Civ. 3290, 1996 WL 706932 (S.D.N.Y. Dec. 6, 1996). Whitfield's motion to reargue was denied. See Whitfield v. Scully, No. 94 Civ. 3290, 1997 WL 223079 (S.D.N.Y. May 5, 1997). We affirmed. See Whitfield v. Scully, No. 97-2304, 164 F.3d 620, 1998 WL 681279, at *1 (2d Cir. Feb. 5, 1998) (summary order).

On February 24, 1998 the Clerk of Court for the Second Circuit, as requested in the bill of costs submitted by defendants, entered a judgment taxing $711.40 in printing costs against Whitfield for appellate briefs and appendices. Whitfield promptly filed objections to this award of costs. On April 28, 1998 our mandate, silent as to costs, issued to the district court. On May 21, 1998 a deputy clerk in the Southern District of New York entered a judgment taxing $595.96 against Whitfield as requested by defendants under Local Civil Rule 54.1 to defray the stenographic charges incurred while deposing Whitfield. At the same time, the deputy clerk left blank the space on the entry sheet that would have provided for the taxation of costs had they been included in the circuit mandate.

Acting according to its standard operating procedures, the New York State Department of Correctional Services treated the district court's deposition taxation of $595.96 and the appellate printing taxation of $711.40 as separate judgments, and began recouping payments from Whitfield's prison account to satisfy those judgments. Pursuant to those procedures, the Department recoups 20 percent of all incoming receipts to be credited toward each outstanding judgment on a monthly basis, unless the account balance drops below ten dollars, in which case no collection is made until the balance again exceeds ten dollars. At the same time, under Department policy, no more than two encumbrances are collected at a given time; therefore, even if additional judgments or fees were outstanding, the total rate of recoupment would never exceed 40 percent. Thus, the Department currently collects a total of 40 percent or $3.10 of Whitfield's total weekly earnings of $7.75, and at this rate (not accounting for outside gifts or for time taken off from work) Whitfield can expect to repay the district court deposition costs in slightly more than seven years and the larger appellate printing costs in a little less than nine years.

On August 19, 1998 Whitfield moved in the district court for review of the district clerk's taxation of costs. In his affidavit in support of the motion, plaintiff noted that his claims on the merits of the action had not been frivolous and had been filed in good faith. He also contended that the taxation imposed an undue hardship on his ability to purchase necessary commissary items such as shampoo or stamps to send mail to his family, and to contribute to the NAACP and certain prison organizations that he supports. In sum, he maintained that such taxation of costs created deterrent effects that impinged on his right of access to the courts and contradicted the spirit of the in forma pauperis statute, 28 U.S.C. § 1915.

In an order dated October 2, 1998 the district court denied Whitfield's motion for review, reasoning simply that the taxation of costs was "appropriate." Whitfield v. Scully, No. 94 Civ. 3290, slip op. at 1 (S.D.N.Y. Oct. 2, 1998) (citing Glucover v. Coca-Cola Bottling Co., No. 91 Civ. 6331, 1996 WL 1998, at *2 (S.D.N.Y. Jan. 3, 1996)). Meanwhile, Whitfield's February 1998 objections to appellate printing costs were referred to the merits panel that had affirmed summary judgment, and were deemed by that panel to be a motion to disallow those costs. Whitfield's objections were denied in an unpublished order. See Whitfield v. Scully, No. 97-2304 (2d Cir. Dec. 13, 1999).

Whitfield filed a notice of appeal from the district court's denial of his challenge to the costs imposed, and we appointed counsel to represent him. That appeal is now before us.

DISCUSSION

I Standard of Review

A district court reviews the clerk's taxation of costs by exercising its own discretion to "decide the cost question [it]self." Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 233 (1964). An appellate court, in turn, reviews a district court's order taxing costs for abuse of discretion. ARP Films, Inc. v. Marvel Entm't Group, Inc., 952 F.2d 643, 651 (2d Cir. 1991). Whether the district court has the authority to award costs presents a question of law subject to de novo review. Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1144 (9th Cir. 1998).

II Taxation of Costs

A. Deposition Costs in the District Court

Rule 54(d) of the Federal Rules of Civil Procedure generally governs the taxation of costs against an unsuccessful litigant in federal district court.

Costs Other than Attorneys' Fees. Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs.... Such costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.

Fed. R. Civ. P. 54(d)(1).

Construing this provision, the Supreme Court has held that the term "costs" includes only the specific items...