Sales v. Marshall
| Decision Date | 21 April 1989 |
| Docket Number | Nos. 87-3568,88-3411 and 87-4151,s. 87-3568 |
| Parties | Arkamel Ray SALES, Plaintiff-Appellant, v. R.C. MARSHALL, Warden, et al., Defendants, John Horn, Nursing Supt., Nancy Shaw, Nurse, Roger MacAlister, Nurse, Defendants-Appellees. William HUNTER, Plaintiff-Appellee, v. Huey BLAIR, et al., Defendants, State of Ohio/SOCF, Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert F. Laufman (argued), Cincinnati, Ohio, for Ray Sales and William Hunter.
Arkmael Ray Sales, Lucasville, Ohio, pro se.
Christian B. Stegeman (argued), Asst. Atty. Gen., Cincinnati, Ohio, for John Horn, Nancy Shaw, Roger MacAlister, and State of Ohio/SOCF.
Before MERRITT and MILBURN, Circuit Judges, and LIVELY, Senior Circuit Judge.
These consolidated appeals concern the determination and allocation of costs in state prisoners' civil rights actions. In No. 87-4151, we must decide also whether the district court correctly held that the State of Ohio was not entitled to intervene in order to claim as taxed costs the expenses of responding to a writ of habeas corpus ad testificindum.
Sales, the plaintiff in Nos. 87-3568 and 88-3411, is an inmate at the Southern Ohio Correctional Facility (SOCF), a state prison. In his civil rights action, brought under 42 U.S.C. Sec. 1983, he claimed that his constitutional right to proper medical care was infringed when prison nurses, over a two-day period, gave him only two Talwin tablets per day rather than the three per day to which he was entitled. The district court granted Sales' petition for a writ of habeas corpus ad testificandum and permitted him to proceed in forma pauperis. Following a bench trial the district court dismissed the action. SOCF then submitted a cost bill for $561.68, including $221.85 for transporting Sales to and from Cincinnati for the trial, and $339.83 for deposing Sales prior to trial. The court granted costs to SOCF in the amount claimed, and Sales has appealed. Sales' only income is $3.00 per month from the State. He has no assets.
Hunter, the plaintiff in No. 87-4151, while an inmate in SOCF, sued Scioto County, Ohio, and several Scioto officials pursuant to 42 U.S.C. Sec. 1983. Hunter charged the defendants with various constitutional violations while he was an inmate in the county jail. At Hunter's request, the district court issued a writ of habeas corpus ad testificandum, addressed to the superintendent of SOCF, ordering SOCF to produce Hunter for his trial in Cincinnati. The superintendent complied with the writ and transported Hunter to Cincinnati without either objecting or attempting to intervene in the action. Following a jury verdict for the defendants the district court entered judgment on March 10, 1987, and denied a motion for a new trial on April 24. Hunter appealed.
Although never a party to the action, SOCF submitted a bill of costs on April 29, seeking to recover from Hunter $1,954.06 expended in complying with the writ. The bill included both transportation expenses and the wages of accompanying guards. The district court first approved the cost bill, but later granted Hunter's motion for reconsideration, noting that SOCF had never intervened in the action. On June 25 SOCF moved to intervene or in the alternative, to be joined nunc pro tunc to February 11, the date the writ issued. Following a hearing, the district court denied both the motion to intervene or to be joined and the bill of costs. The court determined that SOCF's attempt to intervene was not timely and that the motion did not set forth proper grounds either for intervention or joinder as required by Federal Rules of Civil Procedure 24 and 19. The district court found that requiring SOCF to produce Hunter for trial did not unreasonably burden the State and noted that the State could recover the transportation costs from Scioto County.
In both appeals the State argues that 28 U.S.C. Secs. 1821 and 1920 are authority for awarding as costs the expenses of transporting a state prisoner to a federal court in response to a writ of habeas corpus ad testificandum. Section 1821 provides for the payment of fees and allowances to witnesses for appearing in federal courts or for depositions. A witness's "normal travel expenses ... shall be taxable as costs pursuant to section 1920 of [Title 28]." 28 U.S.C. Sec. 1821(c)(4). Section 1920 lists the items that courts may tax as costs:
Sec. 1920. Taxation of costs
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
The allowance of costs is further limited by Fed.R.Civ.P. 54(d), which, in relevant part, provides that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs."
The State asserts in Sales' case that it seeks to recover only "normal travel expenses" under Sec. 1821(c)(4) and reasonable expenses incurred in taking the plaintiff's deposition as authorized by Sec. 1920. In addition, the State relies on the All Writs Act, 28 U.S.C. Sec. 1651(a), as authority for reimbursement of the expenses it has incurred. The State also contends that the plaintiff's pauper status does not bar the award of costs to it, the prevailing party.
The plaintiff-appellant argues that courts may not tax as costs items not listed in Sec. 1821 or Sec. 1920. While Rule 54(d) grants district courts discretion to determine which costs to award a prevailing party, there is no authority, he contends, to tax costs for any item not listed in one of the statutes. Neither statute lists as a recoverable item a custodian's expenses in transporting a prisoner to court. The plaintiff also contends that the expenses claimed in connection with the deposition are excessive, and that the district court erred in not considering his indigency when approving the State's bill of costs.
We deal first with the State's contention that the Sales writ was issued pursuant to 28 U.S.C. Sec. 1651. Section 2241(c)(5) of Title 28 authorizes a court to issue a writ of habeas corpus ad testificandum to a prisoner when "[i]t is necessary to bring him into court to testify or for trial." The writ is directed to "the person having custody of the person detained." 28 U.S.C. Sec. 2243. In arguing that the writ in this case should be treated as issued under Sec. 1651, the State seeks to avoid as an unreasonable burden the expense of complying with the writ. It relies on United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977), where the Supreme Court upheld under the All Writs Act a district court order requiring a telephone company to assist the FBI in installing court-approved pen registers on telephones of suspects. The Court stated "that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed." Id. at 172, 98 S.Ct. at 372. Some courts have relied on the All Writs Act and this language from New York Telephone to allocate between state and federal governments the expenses of producing a state prisoner for trial. See Ford v. Carballo, 577 F.2d 404, 407-08 (7th Cir.1978).
A recent Supreme Court decision undercuts the State's argument. In Pennsylvania Bureau of Corrections v. United States Marshals, 474 U.S. 34, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985), the Court held that in the absence of exceptional circumstances, 28 U.S.C. Secs. 2241 and 2243, not the All Writs Act, authorize courts to issue writs of habeas corpus ad testificandum. "Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Id. at 43, 106 S.Ct. at 361. Because no exceptional circumstances existed here, we conclude that the district court issued the writ pursuant to sections 2241 and 2243, not pursuant to Sec. 1651(a).
Sections 2241 and 2243 are silent with regard to who pays the expenses of complying with writs of habeas corpus ad testificandum. We know of no rule that prohibits a court from requiring the custodian of a prisoner to transport the prisoner to court proceedings at the custodian's expense. This seems nothing more than an unexceptional cost of maintaining a prison system. Apparently no appellate court has considered a case in which a state has sought to recover from a prisoner the expenses of complying with a writ of habeas corpus ad testificandum. Earlier cases in which courts allocated those expenses between federal and state governments are instructive, however. We agree with Judge Gibbons' statement in Story v. Robinson, 689 F.2d 1176 (3rd Cir.1982), that the authority of federal courts to issue writs of habeas corpus ad testificandum has never "been qualified by a requirement that the respondent custodian, state or federal, be compensated for compliance with the writ." Id. at 1179.
In Wiggins v. County of Alameda, 717 F.2d 466 (9th Cir.1983), cert. denied sub nom. California Department of Corrections v. United States, 465 U.S. 1070, 104 S.Ct. 1425, 79 L.Ed.2d 749 (1984), a United States Magistrate ordered the state to transport, guard and pay all expenses incurred in producing a state prisoner for trial of his civil rights action against a county. Relying on Story v. Robinson,...
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