Gay v. Chandra

• Decision Date: 11 March 2011
• Docket Number: CIVIL NO. 10-336-GPM
• Parties: ANTHONY GAY, IDOC # B62251, Plaintiff, v. REKESH CHANDRA, et al., Defendants.
• Court: U.S. District Court — Southern District of Illinois

ANTHONY GAY, IDOC # B62251, Plaintiff,

v.REKESH CHANDRA, et al., Defendants.

CIVIL NO. 10-336-GPM

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

Filed: March 11, 2011

MEMORANDUM AND ORDER

MURPHY, District Judge:

This matter is before the Court on a motion to require Plaintiff Anthony Gay to post security for costs brought by Defendants Rakesh Chandra, Claudia Kachigian, and Katherine Clover (Doc. 36). In this case, which was filed originally in Illinois state court in 2008 and which is before this Court on removal from state court, Gay, a prisoner in the custody of the Illinois Department of Corrections, claims violations of his constitutional rights. Gay alleges that on May 8, 2006, while he was incarcerated in the closed maximum security prison at the Tamms Correctional Center ("Tamms"), Defendant Rakesh Chandra, a psychiatrist at Tamms who has been treating Gay for mental disorders, increased the dosage of Gay's medication without informing Gay, with the result that Gay suffered a drug overdose. Chandra, Gay claims, was retaliating against Gay for having filed a prior civil rights lawsuit against Chandra. Gay alleges also that on April 25, 2007, Chandra terminated Gay's medication in retaliation against Gay for having requested that a court take judicial notice that Chandra has been convicted of a crime. As to Defendants Claudia Kachigian and Katherine Clover, who at the times relevant to this case were, respectively, a psychiatrist and a socialworker at Tamms, Gay alleges that they were deliberately indifferent to Gay's serious mental health needs. Although Gay's complaint does not specifically reference 42 U.S.C. § 1983, the Court assumes that Section 1983 is the statute under which Gay is pursuing his claims, as that statute is the exclusive remedy for alleged deprivations of constitutional rights by persons acting under color of state law. See Maxwell v. Village of Sauget, Ill., No. 06-451-GPM, 2007 WL 420195, at *2 n.1 (S.D. Ill. Feb. 5, 2007) (collecting cases). The Court further assumes that Gay is alleging violations of his rights under the First Amendment and the Eighth Amendment. See DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000) (a prisoner has a right under the First Amendment to challenge the conditions of his or her confinement by filing grievances and lawsuits, and it is unlawful for prison officials to retaliate against a prisoner for exercising this right); Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)) (the Eighth Amendment "imposes upon prison officials the duty to 'provide humane conditions of confinement, ' including the obligation to provide medical care to those whom [they have] incarcerated"). Chandra, Kachigian, and Clover now move for an order requiring Gay to post security for costs in the amount of $1,000.

No provision of the Federal Rules of Civil Procedure or any other federal statute expressly authorizes a federal court to order a bond to cover costs. See Sassower v. American Bar Ass'n, 33 F.3d 733, 736 (7th Cir. 1994); Van Bui v. Children's Hosp of Philadelphia, 178 F.R.D. 54, 56 (E.D. Pa. 1998); Soo Hardwoods, Inc. v. Universal Oil Prods. Co., 493 F. Supp. 76, 77 (W.D. Mich. 1980). However, federal courts have inherent authority to require parties to post security for costs to ensure that the costs will be paid. As the United States Court of Appeals for the Seventh Circuit has instructed, "it seems to us, as it has seemed to the other courts that haveaddressed the question, that the power to tax costs implies the ancillary power to take reasonable measures to ensure that the costs will be paid. So if there is reason to believe that the prevailing party will find it difficult to collect its costs, the court can require the posting of a suitable bond." Anderson v. Steers, Sullivan, McNamar & Rogers, 998 F.2d 495, 496 (7th Cir. 1993) (citations omitted). Accord Simulnet E. Assocs. v. Ramada Hotel Operating Co., 37 F.3d 573, 574 (9th Cir. 1994); In re American President Lines, Inc., 779 F.2d 714, 716-17 (D.C. Cir. 1985); Hawes v. Club Ecuestre El Comandante, 535 F.2d 140, 143 (1st Cir. 1976). The amount of such a bond is committed to a court's discretion, "but the court should not require security for expenses as distinguished from the more modest security for costs" and "a federal court's discretion to require security for costs should not be exercised in a manner that interferes with the policy of the underlying federal statute." 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2671 (3d ed. 1998 & Supp. 2010) (collecting cases). See also Leighton v. One William St. Fund, Inc., 343 F.2d 565, 566-67 (2d Cir. 1965) (affirming an order requiring a stockholder, who had purchased ten shares of a corporation's stock one month before trying to join a shareholder lawsuit, to post reasonable security for costs in the amount of $1,000); Miller v. Town of Suffield, 249 F.2d 16, 16-17 (2d Cir. 1957) (a plaintiff's "fantastic claims" justified an order requiring the plaintiff to post a "moderate" bond for costs); State Wide Enters., Inc. v. U.S. Gypsum Co., 238 F. Supp. 604, 606 (E.D. Mich. 1965) (when the inference was permissible that an antitrust lawsuit was of dubious merit, and the apparent absence of financial responsibility of the plaintiff was indicated, the court would grant the defendants' motion for security for costs in the amount of $7,500 in the interest of justice and in the exercise of the court's inherent discretion to require a plaintiff to post security for costs).

Factors that a court may consider, on a case-by-case basis, in determining whether to require security for costs include: the financial condition and ability to pay of the party at issue; whether that party is a non-resident or foreign corporation; the merits of the underlying claims; the extent and scope of contemplated discovery; the legal costs expected to be incurred; and compliance with past court orders. See Selletti v. Carey, 173 F.3d 104, 111 (2d Cir. 1999) ("[T]he district court found in this case that the merits of plaintiff's claims were questionable, that plaintiff had violated discovery orders and otherwise had failed to prosecute his claims adequately, and that defendants' ultimate ability to recover costs that might be awarded by the court was in doubt. Under these circumstances, imposition of a $50,000 bond requirement was well within the district court's discretion."); Murphy v. Ginorio, 989 F.2d 566, 569 (1st Cir. 1993) (citing Aggarwal v. Ponce Sch. of Med., 745 F.2d 723, 727-28 (1st Cir. 1984)) (factors to be considered in determining whether to require a plaintiff to post security for costs include (1) the plaintiff's probability of success on the merits, and the background and purpose of the suit, (2) the reasonable extent of the security to be posted, if any, viewed from the defendant's perspective, and (3) the reasonable extent of the security to be posted, if any, viewed from the plaintiff's perspective); Hardwoods, Inc. v. Universal Oil Prods. Co., 493 F. Supp. 76, 77 (W.D. Mich. 1980) ("The cases establish that a court may require security for costs when the plaintiff's claim is of dubious merit, plaintiff lacks financial responsibility, and defendant will incur substantial expense.") (collecting cases). A court may also take into account the conduct of, and the background and purpose of, a litigation, including facts such as the habitual pro se status of the plaintiff in matters often lacking in legal merit. See Sassower, 33 F.3d at 736 (security for costs was appropriate where "Sassower's parade of frivolous suits shows a high probability that he will be ordered to pay costs and sanctions [and] his effort to shift expenses to [the defendant] showsthat collection [of costs] will be difficult unless a bond is posted in advance."); Leighton v. Paramount Pictures Corp., 340 F.2d 859, 861 (2d Cir. 1965) (the court required "an habitual pro se litigant whose claims were often conclusory and lacking in legal merit" to post "reasonable" security for costs); Ehm v. Amtrak Bd. of Dirs., 780 F.2d 516, 517 (5th Cir. 1986) (the court ordered a plaintiff to post a bond for court costs due to the harassing nature of the numerous actions brought by the plaintiff against the defendant); Mann v. Levy, 776 F. Supp. 808, 815 (S.D.N.Y. 1991) (the court required a plaintiff to post a bond as security for costs, because the court had "serious doubts" as to whether the plaintiff would be willing to pay the defendants' costs should the defendants prevail).

In this case, it seems reasonable to require Gay to post modest security for costs. Gay is a so-called "frequent filer, " that is, a vexatious pro se litigant who is notorious in this District. Four actions brought by Gay in this Court have been dismissed on the grounds that they are frivolous, malicious, or fail to state a claim upon which relief may be granted. See Gay v. Page, Civil No. 99-365-MJR (S.D. Ill. Jan. 31, 2002) (order dismissing action for failure to state a claim upon which relief may be granted); Gay v. Powers, Civil No. 98-772-GPM (S.D. Ill. Sept. 27, 2001) (order dismissing action as frivolous and for failure to state a claim upon which relief may be granted); Gay v. Welbourne, Civil No. 00-29-GPM (S.D. Ill. Nov. 21, 2000) (order dismissing action as frivolous); Gay v. Montgomery, Civil No. 99-366-GPM (S.D. Ill. Jan. 13, 2000) (same). Accordingly, under the so-called "three-strikes" provision of 28 U.S.C. § 1915, Gay has lost the privilege to proceed in forma pauperis ("IFP") in federal court without prepayment of fees or security therefor. See 28 U.S.C. § 1915(g); Taylor v. Watkins, 623 F.3d 483, 484 (7th Cir. 2010). At least two actions filed by Gay in this Court have been dismissed due to Gay's failure to comply with theCourt's orders. See Gay v. Blackman, Civil No. 11-14-JPG (S.D. Ill. Mar. 8, 2011) (order...