The opinion of the court was delivered by: Yohn, J.
Plaintiff sued Lancaster County Prison ("LCP"), its warden Vincent Guarini ("Guarini"), and former LCP Mental Health Counselor Troy Waltz ("Waltz"), under 42 U.S.C. § 1983 and state law, alleging violations of his constitutional rights while he was incarcerated at LCP. Before the court is plaintiff's motion to vacate the clerk of court's award of costs to LCP and Waltz. For the reasons set forth below I will reduce the clerk's award of costs.
Plaintiff filed this action pro se in January 2006 and was granted leave to proceed in forma pauperis on May 22, 2007. After plaintiff filed a complaint and two amendments thereto, the court dismissed various claims against other defendants by order dated November 19, 2007.
The court then granted plaintiff's motion for appointment of counsel on February 11, 2008, and, after obtaining counsel plaintiff filed his third amended complaint on October 24, 2008, asserting claims against LCP, Guarini and Waltz for violations of plaintiff's constitutional rights and state law. Plaintiff alleged that, while incarcerated at LCP, he was injured when Waltz threw him to the ground without justification; that LCP and Guarini failed to adequately train and supervise LCP employees, including Waltz; and that plaintiff was denied sufficient outdoor exercise.
On October 27, 2009, I granted defendants' motion for summary judgment in part and dismissed LCP and Guarini as parties, allowing plaintiff to continue to pursue only his claims against Waltz arising from the alleged assault. See Bourne, 2009 U.S. Dist. LEXIS 100657, at *40. After a trial, the jury found that Waltz did not use excessive force or commit an assault or battery, and the court entered judgment in his favor on all counts.
LCP and Waltz then requested costs totaling $4,585.67*fn2
under Fed. R. Civ. P. 54(d)(1) (Defs.' Bill of Costs 2),
which plaintiff opposed. The clerk denied costs of $151.00 for courier
services and lost income by a witness, and awarded the remaining costs
of $4,434.67 on July 9, 2010. (Clerk's Taxation of Costs 2-3, 13.)
Plaintiff has moved to vacate the clerk's taxation of costs or reduce
the amount awarded.
The taxation of costs by the clerk of court is subject to de novo review by the district court. Reger v. Nemours Found., Inc., 599 F.3d 285, 288 (3d Cir. 2010).
Rule 54(d) declares that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party."*fn3 Fed. R. Civ. P. 54(d)(1). Rule 54(d) creates a "'strong presumption' that costs are to be awarded to the prevailing party." Reger, 599 F.3d at 288 (quoting In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 461 (3d Cir. 2000)). "The losing party, therefore, bears the burden of showing why costs should not be taxed against it." Adams v. Teamsters Local 115, 678 F. Supp. 2d 314, 324 (E.D. Pa. 2007).
Ultimately, the district court has the discretion to award or deny costs. See In re Paoli, 221 F.3d at 458. However, "to overcome the presumption favoring the prevailing party and to deny that party costs, a district court must support that determination with an explanation." Id. at 462 (internal quotation marks omitted). "Only if the losing party can introduce evidence, and the district court can articulate reasons within the bounds of its equitable power, should costs be reduced or denied to the prevailing party." Id. at 468.
A court may decline to award costs under Rule 54(d) if such an award would be inequitable. Smith v. Southeastern Pa. Transp. Auth., 47 F.3d 97, 99 (3d Cir. 1995). In making this determination, the court may consider "(1) the prevailing party's unclean hands, bad faith, dilatory tactics, or failures to comply with process during the course of the instant litigation or the costs award proceedings; and (2) each of the losing parties' potential indigency or inability to pay the full measure of a costs award levied against them." Reger, 599 F.3d at 288 n.3 (quoting In re Paoli, 221 F.2d at 468). "[T]he losing party bears the burden of making the showing that an award is inequitable under the circumstances." In re Paoli, 221 F.3d at 462-63.
Plaintiff argues that (1) the award of costs should be vacated or reduced because he is indigent and unable to pay; and (2) specific costs awarded by the clerk of court are not authorized by 28 U.S.C. § 1920, namely, the cost of (i) the transcripts of the second depositions of Waltz and Guarini; (ii) the document camera, projector, and screen used at trial; (iii) plaintiff's records from two correctional facilities that housed plaintiff after LCP; and (iv) expedited service for those records and for Waltz's and Guarini's second depositions. ...