Whiting v. City Of San Jose

Background

Deborah Whiting brought a civil-rights action under 42 U.S.C. § 1983 against the City of San Jose and San Jose police officer Jenni Byrd. She alleged excessive force in violation of the Fourth Amendment and a violation of California Penal Code § 832.7.

The court granted summary judgment—a decision without a trial when no genuine dispute of material fact requires a trial—in favor of the City on all claims. It also granted summary judgment for Officer Byrd on the California Penal Code claim. Officer Byrd did not seek summary judgment on the remaining excessive-force claim, which went to a jury. On October 6, 2022, the jury found in favor of Officer Byrd, and the court entered judgment.

The defendants, as the prevailing parties, submitted a bill of costs totaling $3,532.27. The Clerk taxed, or charged, $2,918.47 against Whiting. Whiting moved under Federal Rule of Civil Procedure 54(d)(1) for judicial review of that amount. The court also considered a motion to seal portions of Whiting’s declaration.

Legal standard

Rule 54(d)(1) generally creates a presumption that costs other than attorney’s fees will be awarded to the prevailing party. The losing party must explain why costs should not be awarded. A court may decline to award costs for reasons including the public importance of the case, the closeness and difficulty of the issues, the possible chilling effect on similar lawsuits, the plaintiff’s limited financial resources, and the parties’ economic disparity.

Discussion

Whiting did not dispute that the defendants were the prevailing parties and did not challenge any specific item in the cost bill. Instead, she argued that costs should not be imposed because the case involved important issues about police conduct and use of force, her claims had merit, an award could discourage future civil-rights litigation, and she lacked the resources to pay.

The defendants did not challenge Whiting’s first three arguments. The court found that those factors weighed against imposing costs. The case involved important questions about police conduct and the use of force. The evidence was close because Whiting and Officer Byrd were the only witnesses to the alleged use of force and gave conflicting accounts. The court also found that charging $2,918.47 could discourage people who could not afford such costs from bringing civil-rights lawsuits.

The court found Whiting’s financial showing insufficient. She identified Social Security benefits as her primary income and described limited additional income from work as a therapist, but did not state whether she had other income or assets or what her assets were worth. Although her declaration suggested that she owned her home, it listed the mortgage balance without stating the home’s value or her equity. She also described medical expenses, mortgage payments, and expected home-repair costs, but the court could not determine how those expenses compared with her income and assets or whether paying the costs would cause financial hardship.

The court therefore concluded that Whiting had not overcome the presumption favoring an award of costs.

Rulings

The court denied without prejudice Whiting’s motion for judicial review of costs. It stated that Whiting could submit a supplemental declaration addressing financial hardship. Before filing it, she had to confer with the defendants to try to resolve disagreements about the cost bill, and her counsel had to attest that the conference occurred. The supplemental declaration was due May 22, 2023, and any response from the defendants was due June 5, 2023. The matter would generally be decided on the written submissions without a hearing.

The court granted the motion to seal portions of Whiting’s declaration that revealed personal financial and medical information.