Recently, I had a case dismissed on the state's motion for summary judgement. After the court granted the state's motion, Assistant Attorney General Carol Murphy filed a Bill of Costs against me for $284.10. In other words: I was being sued for my litigation. Federal Rules of Civil Procedure 54(d) covers cost of litigation for the prevailing party.
Recently, after my deposition was taken by AAG Douglas Carr in another lawsuit, Mr. Carr told me that "the Attorney General's Office is going to pursue costs in inmate lawsuits relentlessly." I believe that the Attorney Generals Office is on a campaign to deter prisoners from petitioning the courts by intimidating them into submission with a Bill of Costs. I've successfully defended against the bill of costs filed against me in my lawsuit, and here's how you can.
A bill of costs can be entered against you even though you were allowed to proceed In Forma Pauperis. See: Sales v. Marshall, 873 F.2d 115 (6th Cir. 1989). However, when a party claims indigency, "courts have required a determination of his or her capacity to pay the costs assessed." Sales, Id. at 120. Courts have looked at both the prisoner's trust account balance and his income in establishing the amount of payment. Smith v. Martinez, 706 F.2d 572 (5th Cir. 1983).
The burden is upon the plaintiff (you) to make the court aware that he is incapable of paying such costs. See: Gradner v. Southern Ry. SYS, 675 F.2d 949 (7th Cir. 1982). You can do this by attaching a statement of your trust fund account to your "Motion for Review of the Clerks Entry for Bill of Costs"; by telling the judge whether you have a prison job and how much a month your job pays; by pointing out to the court the little income you get is essential for "personal hygiene items" from the inmate store. Gluth v. Kangas, 951 F.2d 1504 (9th Cir. 1991), (Court found that $46 per month was reasonable figure for prisoners to purchase needed personal hygiene items from inmate store).
Additionally, the court may look to the purpose of the rule, the litigation history of the party, good faith, and actual dollars involved. See: Weaver v. Toombs, 948 F.2d 1004, 10013 (6th Cir. 1991). If you have a history of filing "frivolous" law suits most likely the judge will order you to pay costs. The courts reason that costs serve as a deterrent to "frivolous litigators" because they will have to decide whether or not their complaint is more important than their having to pay for costs incurred as a result of their litigation filed in bad faith.
Don't let representatives of the Attorney General's Office intimidate you. If you have a legitimate complaint that prison officials are unwilling to work with you to resolve, exercise your constitutional right of access to the courts. See: Bounds v. Smith, 430 US 817, 821; 97 S.Ct. 1491 (1977).
[Editors Note: A recent tactic being used by the Washington AG's office is to try to increase the cost of litigation for pro se prisoner litigants in an effort to bankrupt us out of court. AAG Carr represented the DOC in a suit I filed. Among the tactics he tried in order to jack up my costs were: refusing to provide me with a copy of my deposition unless I paid $1.00 a page for it; charging me copying costs on discovery; making me pay for the phone bill on telephonic depositions and refusing to make non party witnesses available for deposition unless I paid subpoena witness fees. I was able to fend off all these efforts except for the subpoena fee issue. These are just sleazy tactics by the AG's office to try to gain tactical advantage and intimidate prisoners. PLN has reported cases in the past where efforts to recover IFP fees and costs have proven unsuccessful.]
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