Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:00-cv-02444-REB-PAC

Document 279

Filed 10/24/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-2444-REB-PAC ______________________________________________________________________ KEVIN J. RUTHERFORD, Plaintiff, v. DR. LOUIS CABILING, Defendant. ______________________________________________________________________ MOTION TO REVIEW TAXATION OF COSTS ______________________________________________________________________ Kevin J. Rutherford, ("Plaintiff") through his attorneys, Burns, Figa & Will, P.C., and pursuant to Fed.R.Civ.P. 54(d)(1), respectfully requests this Court vacate the October 18, 2005 Order of Costs taxed against Mr. Rutherford. In support thereof Mr. Rutherford states as follows: 1. Pursuant to D.C.Colo.LCivR 7.1(A), the undersigned counsel hereby

certifies that he has conferred with defendant's counsel and has been informed that the defendant will oppose the relief requested in this Motion. INTRODUCTION 2. Mr. Rutherford sued Dr. Louis C. Cabiling alleging that Dr. Cabiling acted

with deliberate indifference to Mr. Rutherford's serious medical needs in violation of the Eighth Amendment. Dr. Cabiling moved for summary judgment. On September 14, 2005, this Court granted summary judgment in favor of Dr. Cabiling and against Mr.

Case 1:00-cv-02444-REB-PAC

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Rutherford and awarded Dr. Cabiling costs to be taxed by the Clerk of the Court under Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1. On October 18, 2005, the Clerk of the Court awarded costs in the amount of $2,553.20. THE ORDER OF COSTS SHOULD BE VACATED 3. Mr. Rutherford's financial condition constitutes a special circumstance that

overcomes the presumption of a cost award. Although Fed.R.Civ.P. 54(d) creates a presumption favoring cost awards to prevailing party, this burden may be overcome by an unsuccessful party' showing of special circumstances. Rawson v. Sears, Roebuck s & Co., 678 F.Supp. 820, 822 (D.Colo. 1988). 4. Mr. Rutherford was incarcerated on December 1, 1992 and released from

prison on May 23, 2005. On December 13, 2000, this court granted Mr. Rutherford's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Mr. Rutherford remained indigent throughout the course of this litigation and had no assets and no means by which he could make monthly filing fee payments. Mr. Rutherford does not have family. Since his release, Mr. Rutherford has struggled to find work. Mr. Rutherford secured employment at an auto body shop and began to earn a meager income. Both before and after the Bill of Costs hearing held on October 18, 2005, undersigned counsel unsuccessfully attempted to contact Mr. Rutherford at his place of employment and at his home. Through these calls, undersigned counsel learned that Mr. Rutherford is no longer employed by the auto body shop. It is not clear whether Mr. Rutherford currently is employed. Because undersigned counsel has not been able to

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contact Mr. Rutherford, it was not possible to determine what, if any, assets he currently has. 5. Regardless, Mr. Rutherford is in a precarious financial situation. After

thirteen years in prison, he is facing the extremely difficult task of reintegrating. The difficulty he and other released prisoners face can not be underestimated. An award of costs could result in attachment by the defendant on whatever meager income Mr. Rutherford may be earning. Such an award would be inequitable and would drive Mr. Rutherford further into penury. 6. In Rawson, the Colorado District Court found that it would be inequitable

and oppressive for Mr. Rawson to pay Sears' costs. Id. at 823. Mr. Rawson lived on a fixed income of less than $1,000.00 a month. Mr. Rawson's suit was unsuccessful because he filed his case under the wrong statute, not because of the substantive merits of his case. Id. In Rawson, this Court also found that assessing costs under the circumstances Mr. Rawson faced might cause other victims of age discrimination to refrain from seeking justice, not because of the merits of the case, but because of the risk of losing all assets when a plaintiff is matched against an opponent with far greater resources. Id. 7. Judgment was entered against Mr. Rutherford not for substantive reasons

but because he failed to exhaust his administrative remedies. Order Granting Def.'s Mot. Summ. J. at 6. With regard to the substantive merits of Mr. Rutherford's claim, the Tenth Circuit Court of Appeals concluded that the evidence in the record was sufficient to support arguable claims under the Eighth Amendment against Dr. Cabiling.

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Case 1:00-cv-02444-REB-PAC

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Rutherford v. Medical Dep't of Dep't of Corrections, No. 021279, 76 Fed. Appx. 893, 898-99 (10th Cir. September 24, 2003). 8. Like the federal Age Discrimination in Employment Act under which Mr.

Rawson filed his suit, the intent of the Eighth Amendment is to provide a remedy for wrongs and afford those wronged a fair opportunity to be heard. An award under these circumstances might cause other victims of deliberate indifference not to seek justice because of the devastating financial implications that could result from litigating against an opponent with vastly superior resources. Had Mr. Rutherford's case been decided on the merits rather than summary judgment, his special financial circumstances might not apply. An award of costs at this point in Mr. Rutherford's life, however, would be financially devastating and would inhibit his assimilation into post-prison life. WHEREFORE, Plaintiff requests this Court vacate the Order of Costs taxed against Mr. Rutherford by the Clerk of this Court on October 18, 2005.

Submitted this 24th day of October, 2005. /s/ David M. "Merc" Pittinos_____ D. Sean Velarde David M. "Merc" Pittinos Burns, Figa & Will, P.C. 6400 S. Fiddler's Green Circle, Suite 1030 Englewood, CO 80111 Telephone: 303-796-2626 Attorneys for Plaintiff Kevin Rutherford

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Case 1:00-cv-02444-REB-PAC

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CERTIFICATE OF SERVICE I hereby certify that on this 24th day of October 2005, I electronically filed the foregoing MOTION TO REVIEW TAXATION OF COSTS using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Daniel Christopher, Esq. David Gerbus, Esq. Molly Walsh, Esq. Kennedy & Christopher P.C. 1050 17th St., #2500 Denver, CO 80265 [email protected] [email protected] [email protected] Joseph P. Sanchez Assistant Attorney General Litigation Section 1525 Sherman Street 5th Floor Denver, CO 80203 [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participants in the manner indicated by the non-participant's name: By U.S. Mail Kevin Rutherford 138 West Uintah Street Colorado Springs, CO 80903

/s/ David M. "Merc" Pittinos D. Sean Velarde David M. "Merc" Pittinos Attorneys for Plaintiff Kevin Rutherford BURNS, FIGA & WILL, P.C. Plaza Tower One, Suite 1030 6400 South Fiddlers Green Circle Englewood, CO 80111 Telephone: 303-796-2626 FAX: 303-796-2777 E-mail: [email protected]

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