Appendix — Indiana Department of Correction v. Sampley

INDEX TO APPENDIX

Opinion and Judgment, Sampley v. Duckworth,

No. 95-1842 (7th Cir. Dec. 19, 1995)

(judgment appealed from) ..................-.

Memorandum and Order of District Court Denying

Indiana Department of Correction’s Motion

To Alter or Amend Judgment Denying

Petition for Reimbursement of Costs

ee EE hk 544 desaeh she cas bos ceeedase.

Judgment of District Court after Trial

ee ier hnen dine enkees cans ae

Memorandum and Order of District Court Denying

Indiana Department of Correction’s Petition

For Reimbursement (Nov. 22, 1994) .........

haileme

In the

United States Court of Appeals

For the Seventh Circuit

No. 95-1842

Bit. SAMPLEY AND MICHAEL HOLLAND,

Plaintiffs-Appellees,

V.

Jack DucxwortTH, in his personal capacity,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 88 C 405--Robert L. Miller, Jr., Judge.

ARGUED SEPTEMBER 15, 1995-DecIDED DECEMBER 19, 1995

Before Posner, Chief Judge, and Cupany and Manion,

Circuit Judges.

Cupany, Circuit Judge. This case presents only one

issue: whether district courts have authority to impose upon

a losing plaintiff the expenses incurred by state corrections

officials in transporting prisoners to be witnesses in a civil

suit. The case had its origins in a civil rights suit brought

by plaintiffs Bill Sampley and Michael Holland against the

Superintendent of the Indiana State Prison, Jack Duck-

worth, involving conditions at that institution. During the

course of the lawsuit the district court issued orders of

transportation requiring the Indiana Department of

Corrections to bring a number of prisoner witnesses to

court to testify. The plaintiffs did not prevail in their

lawsuit and costs were assessed against them in favor of the

la

defendant. This appeal, however, concerns a third-party

application for reimbursement brought by the Indiana

Department of Corrections (IDOC). IDOC asked that the

district court direct the losing plaintiffs to reimburse them

for the costs of transporting the prisonerwitnesses to court.

The district court denied the request, on the grounds that it

lacked authority to mandate such a payment. We affirm.

Analysis

Through the issuance of a writ of habeas corpus ad

testificandum, state prison officials may be required to

produce a prisoner in their custody to testify at a federal

trial. The writ of habeas corpus ad testificandum is

authorized by 28 U.S.C. § 2241 which provides, in relevant

part:

(a) Writs of habeas corpus may be granted by... .

ihe district courts...

(c) The writ of habeas corpus shall not extend to a

prisoner unless--

(5) It is necessary to bring him into court to testify

or for trial.

- 28 U.S.C. § 2243 further prescribes that "the writ . . . shall

be directed to the person having custody of the person

detained” and that "the person to whom the writ is directed

shall be required to produce at the hearing the body of the

person detained." This statute codifies the common law

writ. The writ was initially incorporated in the federal

statutes in 1789, and there is no historical requirement that

2a

custodians be reimbursed for their costs of compliance with

the writ. See, e.g., Story v. Robinson, 689 F.2d 1176, 1179

(3d Cir. 1982); Sales v. Marshall, 873 F.2d 115, 119 (6th

Cir. 1989).

In this appeal IDOC does not contest that the court

may order it to produce prisoner-witnesses pursuant to a

writ of habeas corpus ad testificandum, nor does it suggest

that the court is required to charge the costs of IDOC's

compliance with the writ against the losing plaintiff. IDOC

argues, however, that the district court erred in its belief

that it lacked discretionary authority to order reimbursement

of IDOC's costs of compliance. IDOC urges two possible

sources of such district court authority. First, this power

may be sought in the statutory framework governing

reimbursement of trial costs. Alternatively, authority might

be found in the common law powers associated with the

writ of habeas corpus ad testificandum which were attached

to it at the time it was codified. After considering each of

these possible sources, we concur with the district court that

nothing in either the statutory framework or the common

law authorizes the requested reimbursements.

IDOC claims that its request is permitted under 28

U.S.C. § 1920, which is part of the network of statutes and

rules providing for reimbursement of costs to prevailing

parties in civil actions. Reimbursement for some of the

costs incurred by witnesses who testify at trial is routinely

awarded to prevailing parties under the terms of Fed. R.

Civ. P. 54(d). That rule provides that, with a few excep-

tions not relevant here, "costs other than attorneys’ fees

shall be allowed as of course to the prevailing party unless

the court otherwise directs . . . ." The expenses which may

be taxed as costs, including expenses for witnesses, are

enumerated in §1920:

3a

A judge or clerk of any court of the United States

may tax as costs the following:

(3) Fees and disbursements for printing and

witnesses; .. .

28 U.S.C. § 1920.

The costs permissibly paid to witnesses are specified further

by 28 U.S.C. § 1821 which provides, in part:

(a)(1) Except as otherwise provided by law, a

witness in attendance at any court of the United

States . . . shall be paid the fees and allowances

provided by this section.

(f) Any witness who is incarcerated at the time that

his or her testimony is given . . . may not receive

fees or allowances under this section... .

(The elided section of part (a) contains a list of specified

reimbursable expenses, such as transportation and

accommodation costs.) As indicated, prisoners themselves

are expiessly prohibited from receiving witness fees or

allowances. 28 U.S.C. § 1821(f).

IDOC argues that the scope of § 1920 extends

beyond defining the costs to be paid to prevailing parties

under Rule 54(d) to encompass reimbursement of third

parties, such as itself, for the expenses of complying with a

writ of habeas corpus ad testificandum. One of the items

which, under § 1920(3), may be taxed as costs is "fees and

disbursements for printing and witnesses." IDOC argues

4a

that, while witness "fees" are those items described in sec.

1821, the "disbursements" in § 1920(3) include expenses

incurred by IDOC (a non-party to the suit) in transporting

witnesses in compliance with a writ of habeas corpus ad

testificandum. IDOC's argument is precluded, however, by

the Supreme Court's treatment of the relationship between

Rule 54(d), § 1821 and sec. 1920 in Crawford Fitting Co.

v. J. T. Gibbons, Inc., 482 U.S. 437 (1987). That case

determined that Rule 54(d) does not authorize the payment

to an expert witness of any witness fees in excess of the

limits imposed by § 1821 in its specification of the fees

authorized by § 1920. The petitioner there argued that the

scope of Rule 54(d) was broader than that of § 1920. While

the appellant here urges the converse--that § 1920 is

broader in scope than Rule 54(d)--the two arguments share

the contention that Rule 54(d) and § 1920, while

overlapping in scope, are not coextensive. The Supreme

Court in Crawford rejected that contention.

In Crawford, the Supreme Court described the inter-

relation of the three provisions at issue, noting that". . .

§ 1821 specifies the amount of the fee that must be tendered

to a witness, § 1920 provides that the fee may be taxed as a

cost, and Rule 54(d) provides that the cost shall be taxed

against the losing party unless the court otherwise directs."

Crawford, 482 U.S. at 441. Leaving no doubt as to its view

of the function of § 1920, the Court opined:

We think the better view is that § 1920 defines the

term 'costs' as used in Rule 54(d). Section 1920

enumerates expenses that a federal court may tax as

a cost under the discretionary authority found in

Rule 54(d).

Id. (emnhasis added).

5a

The Supreme Court apparently does not view § 1920

as having any role beyond the purview of Rule 54(d).

Indeed, its Crawford holding that § 1920 exhausts all costs

which may be taxed under Rule 54(d) is based on its

reasoning that "if Rule 54(d) grants courts discretion to tax

whatever costs may seem appropriate, then § 1920, which

enumerates the costs that may be taxed, serves no role

whatsoever." Jd.

If §1920 played a role outside of the Rule 54(d)

framework, the Crawford reasoning would collapse. If, as

IDOC contends, § 1920 provided for payments to third

parties, which are completely outside of the Rule 54(d)

umbrella, then construing Rule 54(d) to provide discretion

beyond the confines of §1920 would not leave § 1920 with

"no role whatsoever." The reasoning in Crawford is

premised on the thesis that § 1920 only authorizes payments

as directed by Rule 54(d).

Ignoring this direct discussion of the role of § 1920,

IDOC instead proposes a strained interpretation of both the

statutory language and the language in Crawford. IDOC

begins by noting correctly that Crawford states that the

statutory phrase "fees .. . for . . . witnesses" is

exhaustively defined in § 1821, which specifies the daily

fees, travel allowances and so on, which may be paid to

witnesses. Beyond this, however, IDOC contends that all of

the payments authorized by § 1821 are included in the

Statutory term "fees" and none in the term "disbursements."

On this basis IDOC then argues that, given that statutes are

to be construed so as to give effect to each word, the word

"disbursements" in § 1920(3) must be given some distinct

meaning. IDOC then puts the roof on this house of cards by

urging that "disbursements" therefore encompasses

expenses incurred by the custodian of a prisoner-witness in

complying with a writ of habeas corpus ad testificandum.

6a

This chain of reasoning is flawed in its inception. As

noted above, the Court in Crawford did state that "the

witness fee specified in § 1920(3) is defined in 28 U.S.C.

§ 1821." However, the Court never suggested that § 1821

defines only the fees authorized by § 1920(3) and not the

disbursements. Indeed, the Court's reasoning makes it quite

clear that the fees and disbursements referred to in §1920(3)

are both included in § 1821. The Court's statement

regarding the relationship between § 1920(3) and § 1821

reads in its entirety as follows:

The witness fee specified in § 1920(3) is defined in

28 U.S.C. § 1821:

(a)(1) Except as otherwise provided by law, a

witness in attendance at any court of the United

States . . . shall be paid the fees and allowances

provided by this section.

(b) A witness shall be paid an attendance fee of $30

per day for each day's attendance. A witness shall

also be paid the attendance fee for the time

necessarily occupied in going to and returning from

the place of attendance at the beginning and end of

such attendance or at any time during such

attendance.

Crawford, 482 U.S. at 440-41 (ellipses in original).

Hence, the Court simply held that § 1920(3)'s witness fee is

defined by these two subsections of § 1821. There is no

suggestion that the entire section defines solely witness fee,

leaving disbursements undefined.

Ta

IDOC's reliance on the general rule of statutory

construction that statutes be construed so as to give effect to

all of their language is thus unavailing. Many, if not most,

of the items covered by § 1821 are not "fees" in any

ordinary sense of the term. These items, such as travel

reimbursements, are deemed "allowances" by § 1821.

Surely they could easily qualify as disbursements under

§ 1920(3). Nothing more than this natural reading of § 1821

is needed to save the word "disbursements" in § 1920 from

statutory oblivion.

We thus conclude that § 1920(3) does not empower

the district court to order the reimbursement sought by

IDOC. In so concluding we are in accord with the Sixth

Circuit which considered an analogous issue and concluded

that "no provision in § 1920 permits courts to tax as costs

against a losing party the custodian's expenses incurred in

complying with a prisoner's writ of habeas corpus ad

testificandum." Sales, 873 F.2d at 119.

We now turn to the question whether the common

law context of § 2241 can support the reimbursement

requested by IDOC. As we recently noted in [vey v.

Harney, 47 F.3d 181, 183 (7th Cir. 1995), "laws often

require or permit a court to do something without providing

details. Omission leaves in place the common law powers

of the federal courts, and using these interstitial powers the

courts put flesh on the statutory bones." As we pointed out

with approval in Ivey, the Second Circuit in Rivera v.

Santirocco, 814 F.2d 859 (2d Cir. 1987), relied on the

common law background of the writ of habeas corpus ad

testificandum in upholding a district court's ordering the

Marshals Service and FBI to take custody of a state prisoner

during a trial in which that prisoner was a necessary

witness.

8a

The power to fill interstices, however, does not

imply a power to add extensions. Indeed, that was the

lesson of this court's decision in /vey. In Ivey, we dealt with

the question whether the All Writs Act, 28 U.S.C. §

1651(a), authorizes a district court to order a state depart-

ment of corrections to transport a prisoner some distance to

be examined by a physician in the pre-trial phase of a

lawsuit. The court found that this extrapolation from a

court's authority to command a state custodian to produce a

prisoner was precluded by the language of § 2241(c). The

statute provides that "the writ of liabeas corpus shall not

extend to a prisoner unless . . . it is necessary to bring him

into court to testify or for trial." (emphasis added).'

IDOC does not persuade us that the common law

writ of habeas corpus was coupled with any power to

charge against the loser the costs of bringing friendly

witnesses to court. It is true that the Ninth Circuit in

' In Ivey, we failed to find common law authority for

an order requiring a custodian to produce a prisoner for an

examination by an expert witness in part because "nothing

in the common law supports an order directing a third party

to provide free services that facilitate litigation." 47 F.3d at

185. IDOC quotes this statement in support of its argument.

The statement, however, referred to an order which we

found to be outside the compass of the writ of habeas

corpus ad testificandum. It supported our finding that the

district court lacked the power even to issue the order in

question. In contrast to the situation in Jvey, both statute

and common law "support an order directing a third party

to provide free services that facilitate litigation" when the

third party is the custodian of a prisoner and the order is a

writ of habeas corpus ad testificandum. IDOC does not

contest this authority. The cited statement from /vey thus

has no bearing on the issue at hand.

9a

Wiggins v. County of Alameda, cited by IDOC, concluded

that the district court had discretion to allocate costs of

transportation of a state prisoner between state and federal

authorities. 717 F.2d 466, 469 (9th Cir. 1983) (upholding

allocation to state of all costs of transporting prisoner-

plaintiff), cert. denied sub nom. California Dept. of Correc-

tions v. United States, 465 U.S. 1070 (1984). But that case

has been overruled on this point by the Supreme Court in

Pennsylvania Bureau of Correction v. United States

Marshals Service, 474 U.S. 34 (1985), which held that only

custodians of prisoners could be ordered to bear the costs of

transporting them pursuant to a writ of habeas corpus ad

testificandum. With regard to reimbursing the state for its

expenses in transporting a prisoner, however, Wiggins

found that "when there is no statutory authority .. .

authorizing reimbursement to the state for the costs of

compliance with such a writ, then there is no basis upon

which the state can seek compensation for its expenses."

717 F.2d at 469. The Wiggins court went on to say, and we

agree, that "enactment of a statute, compliance with which

will require a state or entity to incur costs, does not in itself

create a right to reimbursement." Jd.

IDOC cites only one case in which the cost of

transporting prisoner-witnesses was taxed as costs against a

losing plaintiff. Marks v. Calendine, 80 F.R.D. 24 (N.D.

W. Va. 1978), aff'd sub nom. Flint v. Haynes, 651 F.2d

970 (4th Cir. 1981), cert. denied, 454 U.S. 1151 (1982). In

that case, the plaintiff sued the warden of the prison in

which the prisoner-witnesses were incarcerated. The costs

of transporting the witnesses ‘vere assumed by the court to

be costs borne by the defena_ at for which he could be

reimbursed. The case provided no analysis of whether costs

may be awarded to non-parties and the propriety of the

transportation cost award in particular was apparently not

raised on appeal. The opinion affirming the district court

10a

decision in Marks focused entirely on the question whether

costs may be taxed against indigents at all. Flint v. Haynes,

651 F.2d 970 (4th Cir. 1981), cert. denied, 454 U.S. 1151

(1982). We are not persuaded by these decisions that the

taxation of costs against non-parties is authorized.

In summary, IDOC has not persuaded us to adopt its

creative interpretation of 28 U.S.C. § 1920(3), an interpre-

tation which is at odds with the reasoning of the Supreme

Court in Crawford and which is given no support by this

court's opinion in /vey. Neither has it produced any

convincing authority that there is a common law basis for a

district court to authorize the requested reimbursement. We

therefore affirm the judgment of the district court.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

lla

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BILL SAMPLEY and

MICHAEL HOLLAND,

Plaintiffs,

CAUSE NO. S88-4405M

VS.

JACK DUCKWORTH,

Defendant.

MEMORANDUM AND ORDER

By order entered November 22, 1994, the court

deferred ruling on Supt. Duckworth's verified bill of costs

and afforded Supt. Duckworth an opportunity to file an

affidavit in support of the items sought as part of the costs

as required by 28 U.S.C. § 1924, detailing why the

unidentified discovery is recoverable and was necessary.

The court's November 22 order also denied the Indiana

Department of Correction's "Petition for Reimbursement of

Costs Expended Pursuant to Court Order." The court has

discretion pursuant to Fed. R. Civ. P. 54(d) and § 1920 to

determine whether the prevailing party's expenses are

taxable costs. E.g., SCA Services, Inc. v. Lucky Stores,

599 F.2d 178, 181 (7th Cir. 1979).

With the Declaration in Support of Taxation of

Costs (filed December 16, 1994), Supt. Duckworth has

satisfied his burden of showing that the expenses claimed in

his verified bill of costs, including the cost for 576 copies

of discovery, were accurate and necessary. See M.T. Bonk

12a

A ade ts Semin aes

Co. v. Milton Bradley Co,, 945 F.2d 1404, 1410 (7th Cir.

1991); Northbrook Excess & Surplus Ins, Co, v, Procter &

Gamble Co,, 924 F.2d 633, 641-644 (7th Cir. 1991). The

court finds that the 576 copies of discovery -- copies

provided during discovery and prior to trial at the request

of the plaintiffs and/or plaintiffs' counsel -- are taxable

costs. Therefore, Supt. Duckworth's bill of costs may be

taxed against the plaintiffs. 28 U.S.C. § 1924.

The Indiana Department of Correction ("DOC"), a

nonparty to this cause, has asked the court to alter or amend

its November 22 Order which denied DOC's petition for

reimbursement of costs expended pursuant to the court's

orders. DOC primarily relies on equity and the court's

authority to tax costs against parties. DOC also relies on

28 U.S.C. § 1920’ and the Seventh Circuit's decision in

McGill v, Faulkner, 18 F.3d 456 (7th Cir.), cert. denied,

115 S. Ct. 233 (1994), and Rule 71 of the Federal Rules of

Civil Procedure. None of these provide the court with

authority to award costs to the DOC under the circum-

stances presented.

A motion for reconsideration should be denied

unless it clearly demonstrates manifest error of law or fact

or presents newly discovered evidence. Dresser Indus.,

Inc. v. Pyrrhus AG, 936 F.2d 921, 936 (7th Cir. 1991);

Publishers R I Walker-Davis Publicati

Inc., 762 F.2d 557, 561 (7th Cir. 1985); Amcast Indus.

Corp. v. Detrex Corp., 822 F. Supp. 545 (N.D. Ind.

1992), aff'd in part, rev'd in part on other grounds, 2 F.3d

746 (7th Cir. 1993), and cert. denied, 114 S. Ct. 691

(1994). A motion for reconsideration "cannot be used to

' This statute authorizes an award of witness fees.

Witness fees are fees paid to the witness. 28 U.S.C.

§ 1821. Witnesses who are incarcerated are not entitled to

receive any witness fees. 28 U.S.C. § 1821(f).

13a

raise arguments that could, and should, have been made

before the judgment issued,” Federal Deposit Ins. Corp. v.

Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986); see also

Holstein v. City of Chicago, 149 F.R.D. 147, 148 (N.D.

111. 1993), aff'd, 29 F.3d 1145 (1994); "cannot be used to

argue a case under a new legal theory,” Id.; and "cannot in

any case be employed as a vehicle to introduce new

evidence that could have been adduced during pendency of

the . . . motion." Keene Corp. v. International Fidelity Ins.

Co., 561 F. Supp. 656, 665-666 (N.D. Ill. 1982), aff'd,

735 F.2d 1367 (7th Cir.), and aff'd, 736 F.2d 388 (7th Cir.

1984); see also Rothwell Cotton Co. v. Rosenthal & Co.,

827 F.2d 246, 251 (7th Cir.), as amended, Rosenthal & Co.

y. Rothwell Cotton Co. 835 F.2d 710 (7th Cir. 1987);

Publishers R I Walker-Davis Publicati

Inc., 762 F.2d 557, 561 (7th Cir. 1985) (both cases quoting

Keene Corp, v. Int'l Fidelity Ins., 561 F. Supp at 665-66).

The party moving to reconsider must establish that, through

the exercise of due diligence, it could not have presented

the "newly discovered evidence” during pendency of the

earlier motion. Rothwell Cotton Co, v. Rosenthal & Co.,

827 F.2d at 251.

DOC has not demonstrated a manifest error of law

or fact in the court's denial of its petition for reimbursement

of costs; importantly, DOC has not provided the court with

any authority to establish that, DOC as a non-party, is

entitled to reimbursement of its costs incurred in transport-

ing the prisoner witnesses and Mr. Sampley to trial. As

this court stated previously, the DOC's claim is not

unreasonable; however, the court must deny the DOC's

motion to alter or amend the denial of reimbursement of

costs for the want of authority to so reimburse DOC.

For the foregoing reasons, the court:

l4a

(1) GRANTS Supt. Duckworth's verified

bill of costs, AWARDING Supt. Duckworth

$564.00 in costs to be TAXED against the

plaintiffs Michael Holland and Bill Sampley;

and

(2) DENIES the Indiana Department of

Correction's motion to alter or amend

judgment denying reimbursement of costs

(filed December 9, 1994 (#219)).

The clerk of the court is directed to enter judgment,

pursuant to Fed. R. Civ. P. 58, accordingly.

Cc:

SO ORDERED.

ENTERED: __February 27, 1995 _

/s/ Robert L. Miller, Jr. _

Robert L. Miller, Jr., Judge

United States District Court

T. Quigley

D. Moore

B. Sampley

15a

United States District Court

Northern District of Indiana

BILL SAMPLEY

MICHAEL HOLLAND

JUDGMENT IN A CIVIL CASE

v.

Case No. 3:88CV405RM

JACK DUCKWORTH

{ ] Jury Verdict. This action came before the court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

[XX] Decision by Court. This action came to trial or

hearing before the Court. The issues have been

tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that Supt.

Duckworth's bill of costs is granted and Supt. Duckworth is

awarded $564.00 in costs to be taxed against plaintiffs

Michael Holland and Bill Sampley.

Interest rate: 6.57%

This document entered pursuant to Rules 79(A) and 58

of the Federal Rules of Civil Procedure on:

March 3, 1995 _ Geraldine J. Crockett

By:_/s/

Deputy Clerk

16a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BILL SAMPLEY and

MICHAEL HOLLAND,

Plaintiffs, ‘

vs. CAUSE NO. S88-405M

JACK DUCKWORTH,

Defendant.

MEMORANDUM AND ORDER

This cause is before the court on the following

post-trial motions:

(1) the Indiana Department of

Correction's "Petition for Reimbursement of

Costs Expended Pursuant to Court Order"

(filed August 11, 1994 (#210));

(2) the plaintiffs’ Motion for

Continuance of Taxation of Costs (filed

August 22, 1994 (#215));

(3) the plaintiff Bill Sampley's Motion

for an Enlargement of Time So Plaintiffs’

Can Respond to Indiana Department of

Correction's Petition for Reimbursement

17a

(sic) of Costs Expended Pursuant to Court

Order (filed August 17, 1994 (#213)); and

(4) Bill Sampley's Motion for Leave

to File Delayed Notice of Appeal (filed

August 17, 1994 (#212)).

For the reasons which follow, the court strikes Mr.

Sampley's motion for an enlargement of time and motion

for leave to file a delayed notice of appeal, grants the

plaintiffs' motion for continuance of taxation of costs, and

denies the Indiana Department of Correction's petition.

The court allows Supt. Duckworth to and including

December 30, 1994 to file an affidavit in support of his

verified bill of costs.

a. Siete’ File Delaved Notice of

Appeal

Mr. Sampley has filed a motion for leave to file a

delayed notice of appeal, purportedly proceeding pro se.

Mr. Sampley states that he seeks such leave because he has

allegedly "been dumped by his attorney, without notice."

Mr. Sampley further states that he:

had not intended to file an appeal after the

trial . . . until he learned that Defendant

intended to seek costs. Plaintiff informed his

attorney . . . that he did want to appeal the

costs aspect of the final judgment and

thought she would file a Notice of Appeal.

Plaintiff was informed . . . in a letter from

his . . . attorney, that she no longer had time

to spend on the case... .

18a

Mr. Sampley states that he received the letter from his

attorney on August 15, 1994.

Rule 4 of the Federal Rules of Appellate provides in

pertinent part:

(1) Except as provided in paragraph

(a)(4) of this Rule, in a civil case in which an

appeal is permitted by law as of right from a

district court to a court of appeals the notice

of appeal required by Rule 3 must be filed

with the clerk of the district court within 30

days after the date of entry of the judgment

or order appealed from... .

* * *

(5) The district court, upon a showing

of excusable neglect or good cause, may

extend the time for filing a notice of appeal

upon motion filed not later than 30 days after

the expiration of the time prescribed by this

Rule 4(a). . . . No such extension shall

exceed 30 days past such prescribed time or

10 days from the date of entry of the order

granting the motion, whichever occurs later.

Fed. R. App. P. 4(a)(1) and (5). Assuming that Mr.

Sampley intends to appeal from the June 27 Order in which

the court deferred ruling on Supt. Duckworth's petition for

costs, Mr. Sampley's motion, filed on August 17, would be

timely.! Under this assumption, were the court to grant

! Under Rule 4(a)(1), a notice of appeal would be

due July 27 and consequently, under Rule 4(a)(5), a motion

for extension of time to file a notice of appeal would be due

no later than August 26.

19a

Mr. Sampley's motion, Mr. Sampley would have ten days

from the date of entry of this order within which to file his

notice of appeal. Assuming that Mr. Sampley intends to

appeal from the court's order taxing costs against the

plaintiffs, because the court has not entered an order

awarding costs, the time for filing a notice of an appeal has

not yet commenced.

Since an order granting or denying an award of costs

following an entry of final judgment is an order from which

an appeal lies, see Estate of Borst v, O'Brien, 979 F.2d

511, 517 (7th Cir. 1992) (affirming trial court's award of

attorney fees and costs with a reduction in costs), an award

of costs is a judgment, see Fed. R. Civ. P. 54(a), and thus

not effective and not enforceable until the clerk has

complied with Rule 58.” Because the court's order

2 A judgment is not effective until it is set forth on a

separate document pursuant to Rule 58 of the Federal Rules

of Civil Procedure and entered on the district court's civil

docket pursuant to Rule 79(a). See Fed. R. Civ. P. 58; see

also TME Tool Co, v. Muller, 913 F.2d 1185, 1188 (7th

Cir. 1990) ; Jones v. Jones Bros. Const. Corp., 126 F.R.D.

54, 55 (N.D. Ill. 1989). The clerk must comply with the

rules before a court order can become an effective

judgment. Jones v. Jones Bros. Const. Corp., 126 F.R.D.

at 55-56. The court finds the reasoning of Jones Bros.

Const. Corp, persuasive:

Rule 58 says nothing about there being only one

Rule 58 judgment per lawsuit, instructing instead

that '[e]very judgment shall be set forth on a

separate document.’ . . . Fed. R. Civ. P. 54(a)

states that '[j]udgment as used in these rules includes

a decree and any order from which an appeal lies.’

Since an award of attorney's fees following an entry

of final judgment is an order from which an appeal

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awarding costs to Supt. Duckworth has not been set forth

on a separate document pursuant to Rule 58 and entered on

the district court's civil docket pursuant to Rule 79(a), the

judgment is not yet effective and enforceable against the

plaintiffs.

Although the court is sympathetic to Mr. Sampley's

position, the court will not grant Mr. Sampley's motion

because the motion should be stricken as improper. Despite

any allegations contained in Mr. Sampley's motion, when

Mr. Sampley filed his motion he was, and still is,

represented by counsel, who filed objections and a motion

on behalf of the plaintiffs on August 19, two days after Mr.

Sampley filed his motion, purportedly proceeding pro se.

Accordingly, Mr. Sampley's motion to file delayed notice

of appeal should be stricken.

B. Motion for Enlargement of Time

For the same reason, the court finds that Mr.

Sampley's motion for an enlargement of time should be

stricken. Mr. Sampley's motion for an enlargement of time

was filed on August 17. Two days later, plaintiffs’ counsel

filed "Plaintiffs' Objections to Requests for Costs and

Motion for continuance of Taxations of Costs" on behalf of

the plaintiffs. Thus, when Mr. Sampley filed his motion

for an enlargement of time he was, and still is, represented

by counsel.

lies, . . . such an award is a judgment, which does

not become effective, and thus does not become

enforceable . . . until the clerk complies with Rule

58.

126 F.R.D. at 56 (citation omitted).

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Moreover, the plaintiffs' objection, filed by counsel

for the plaintiffs, responds in part to DOC's petition for

reimbursement of costs. As a result, Mr. Sampley's motion

for an enlargement of time to respond is moot.

Accordingly, the court finds that Mr. Sampley's

motion for an enlargement of time should be stricken.

C. Plaintiffs’ Motion for Conti , Taxati

of Costs

By its June 27 Order, the court concluded that Supt.

Duckworth, as the prevailing party, is entitled to an award

of costs, but deferred ruling on the petition of costs to allow

Supt. Duckworth to file a verified bill of costs. Supt.

Duckworth filed his verified bill of costs in the amount of

$564.00.

The plaintiffs filed their objections to Supt.

Duckworth's verified bill of costs and their motion for a

continuance of the taxation of costs. The plaintiffs contend

that: (1) photocopying expenses are not recoverable under

28 U.S.C. § 1920; (2) the $0.30 rate per page exceeds the

customary rate of photocopying businesses in the area;

(3) that plaintiffs’ counsel has no recollection of receiving

576 pages in response to discovery; and (4) an extra set of

photocopies of discovery materials is not recoverable. The

plaintiffs also restate two arguments made in their previous

response to Supt. Duckworth's motion for attorney fees and

costs. As the court ruled previously that Supt. Duckworth

is entitled to an award of costs, the court need not revisit

those two issues here.

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)

)

)

)

Rule 54(d)(1) of the Federal Rules of Civil

Procedure, which provides for the taxation of costs,

provides in pertinent part:

[Costs other than attorneys’ fees shall be

allowed as of course to the prevailing party

unless the court otherwise directs .. . . Such

costs may be taxed by the clerk on one day's

notice. On motion served within 5 days

thereafter, the action of the clerk may be

reviewed by the court.

The clerk's August 11 Notice states that costs were to be

taxed in this cause on August 22. The plaintiffs served

their motion to continue the taxation of costs on August 18.

Thus, the plaintiffs’ motion was served within five days of

the date on which costs were to be taxed and consequently,

the court may review that taxation of costs.

28 U.S.C. § 1920 governs awards of costs to the

prevailing party. See, e.g., Estate of Borst v. O'Brien, 979

F.2d 511, 517 (7th Cir. 1992). 28 U.S.C. § 1920

provides:

A judge . . . in the United States may tax as

costs the following:

(1) Fees of the clerk and marshals;

(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;

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(4) Fees for exemplification and

copies of papers necessarily obtained for use

in the case;

(5) Docket fees under § 1923 of this

title;

(6) Compensation of court appointed

experts, compensation of interpreters, and

salaries, fees, expenses, and costs of special

interpretation services under § 1828 of this

title.

A bill of costs shall be filed in the case and,

upon allowance, included in the judgment or

decree.

28 U.S.C. § 1920. The expense for copying materials

reasonably necessary are recoverable costs under § 1920.

E.g., State of Ill v. Sangamo Const, Co., 657 F.2d 855,

867 (7th Cir. 1981). To the extent expenses are

recoverable under § 1920, the prevailing party must show

that the costs were reasonably necessary. See M.T. Bonk

Co. v. Milton Bradley Co., 945 F.2d 1404, 1410 (7th Cir.

1991); Northbrook Excess and Surplus Ins, Co, v. Procter

& Gamble Co., 924 F.2d 633, 641-644 (7th Cir. 1991).

The losing party bears the burden of establishing that the

prevailing party is not entitled to the costs requested.

, No. 92 C 6616, 1994

WL 127309, at *1 N. D. Il. April 7, 1994). The court

has discretion pursuant to Fed. R. Civ. P. 54(d) and § 1920

to determine whether the prevailing party's expenses are

taxable costs. E.g., SCA Services, Inc. v. Lucky Stores,

599 F.2d 178, 181 (7th Cir. 1979).

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The court cannot yet determine the total amount of

costs to be taxed against the plaintiffs, however. Supt.

Duckworth's verified bill of costs seeks an award of costs,

including the expense of "the production and copying of. . .

documents with sufficient copies for filing, service and

retention of two copies for counsel... ." The documents

include 576 copies of unidentified discovery in the amount

of $172.80; three trial notebooks (1272 copies) in the

amount of $381.60; 10 copies (20 pages total) of the floor

plan used as demonstrative evidence in the amount of

$6.00; and 2 copies (12 pages total) of the proposed

interrogatory form in the amount of $3.60. Supt.

Duckworth's costs total $564.00.

To the extent expenses such as those in the Supt.

Duckworth's verified bill of costs are recoverable at all

under § 1920, he must show that the costs were necessary.

See M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404,

1410 (7th Cir. 1991); Northbrook Excess & Surplus Ins.

Co. v. Procter & Gamble Co., 924 F.2d 633, 641-644 (7th

Cir. 1991). Although it is apparent that the costs for the

trial notebooks, floor plan, and proposed interrogatory form

were necessary, Supt. Duckworth has ventured no such

showing with respect to the unidentified discovery.

Therefore, the court defers ruling on Supt. Duckworth's

bill of costs to enable Supt. Duckworth further opportunity

to show that the costs for the unidentified discovery was

necessary.

Furthermore, Supt. Duckworth has failed to comply

with 28 U.S.C. § 1924 which provides:

Before any bill of costs is taxed, the

party claiming any item of cost or

disbursement shall attach thereto an affidavit,

made by himself or by his duly authorized

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attorney or agent having knowledge of the

facts, that such item is correct and has been

necessarily incurred in the case and that the

services for which fees have been charged

were actually and necessarily performed.

Supt. Duckworth's verified bill of costs did not have an

affidavit attached to it as required by § 1924. The attached

"verification" made by his counsel does not suffice.’

Without an affidavit, the bill of costs may not properly be

taxed. 28 U.S.C. § 1924.

Accordingly, the court defers ruling on Supt.

Duckworth's verified bill of costs to allow the submission

of an affidavit in support of the items sought as part of the

costs as required by 28 U.S.C. § 1924, detailing why the

unidentified discovery was necessary. The court affords

Supt. Duckworth to and including December 30, 1994

within which to do so.

D. DOC's Petition for Reim!

The Indiana Department of Correction ("DOC"), a

nonparty to this cause, has filed a petition for

reimbursement of costs expended pursuant to the court's

orders, see court orders entered March 3, 1994 (docket

entry ##157-166), regarding the transportation of a number

of prisoner witnesses and plaintiff Sampley for the trial of

this cause. In producing the witnesses and the plaintiff,

DOC provided security and transportation. DOC represents

that it incurred more than $5,000.00 in transporting the

prisoner witnesses, providing for their security, and

providing them meals during trial. DOC represents that it

3 The Verification states "I declare under penalty of

perjury that the foregoing statement of the costs in this

cause is true and correct."

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incurred $1,143.54 in salary expenses for prison personnel

present in the courtroom during trial and $4000.01 for

vehicle use and staffing for transportation of Mr. Sampley

and the other prisoner witnesses. DOC represents that the

costs it seeks represent solely the expenses incurred in

transporting witnesses from the Indiana State Prison or the

Maximum Control Complex.

DOC contends that if it is not reimbursed for its

expenses that it would have been compelied to expend funds

without due process and in violation of the Eleventh

Amendment. DOC seeks an order that the plaintiffs be

jointly and severally liable for the costs of transportation

and security of the prisoner witnesses and Mr. Sampley.

DOC seeks an order which directs that the costs be applied

as a "freeze" on Bill Sampley's inmate trust account and

that the funds in the account or to be entered into the

account be applied toward the costs until the award is

satisfied in full.

The plaintiffs object to DOC's petition for

reimbursement. The plaintiffs contend that DOC is not a

"prevailing party" entitled to reimbursement of costs. The

plaintiffs contend that to allow reimbursement would violate

due process and equal protection.

The court's ultimate inquiry is whether non-party

DOC is entitled to reimbursement of costs incurred in

transporting prisoner witnesses and the plaintiff in this

§ 1983 action. Before the court may reach that ultimate

inquiry, however, the court must determine whether DOC

has standing to petition for reimbursement of its costs

incurred.

DOC has provided the court with no authority to

establish that, as a non-party, it is entitled to petition the

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court for reimbursement of its costs incurred in transporting

the prisoner witnesses and Mr. Sampley.* Rule 71 of the

Federal Rules of Civil Procedure does not provide the

authority, because the court's orders directing DOC to

produce the prisoner witnesses and Mr. Sampley were

arguably not made in DOC's "favor" and because DOC is

not seeking to enforce those court orders. Because DOC

has not established that its petition for costs is properly

before the court, the (sic) must refuse to consider DOC's

petition for reimbursement of costs.

In any event, as the plaintiffs contend, DOC as a

non- party, is not a prevailing party for purposes of

awarding costs pursuant to Rule 54., See Fed. R. Civ. P.

* The authorities cited by DOC support only the

taxation of costs against a non-prevailing party, see 28

U.S.C. § 1920, Fed. R, Civ. P. 54(d), that paupers are not

exempt from this rule, see 28 U.S.C. § 1915, McGill v.

Faulkner, 18 F.3d 456 (7th Cir. 1994), cert. denied, 115

S.Ct. 233 (U.S. Oct. 3, 1994), Flint v. Haynes, 651 F.2d

970 (4th Cir. 1981), cert. denied, 454 U.S. 1151 (1982),

and that indigent criminal.defendants have no absolute right

to subpoena witnesses at the government's expense. See

United States v. McGaha, 205 F. Supp. 949, 951 (E.D.

Tenn. 1962). In a footnote, Jackson v. Vasquez, 1 F.3d

885, 891 n.5 (9th Cir. 1994), raised, but did not decide

whether a federal court order compelling the state to

transport a state prisoner for medical tests violated due

process and the Eleventh Amendment.

Without question, the district court has the authority

to order custodians to produce state prisoners in federal

court. Pennsylvania Bureau of Correction v. United States

Marshals Service, 474 U.S. 34, 40-41 (1985).

28a

54(d) ("costs. . . shall be allowed as of course to the

prevailing party").

This is not to reject the DOC's claim as unreason-

able. There is a tendency for federal courts to treat state

correctional agencies as de facto parties to all prisoner

litigation, whether by requiring witnesses and litigants to be

produced, accommodating judicial visits, disclosing

addresses to the United States Marshal to effectuate service

of process, and so on. Nonetheless, no authority exists for

this court to assess costs for the benefit of one other than a

prevailing party.

Accordingly, the court denies DOC's petition for

reimbursement of costs.

E. Conclusion

For the foregoing reasons, the court:

(1) STRIKES Bill Sampley's Motion for

an Enlargement of Time So Plaintiffs' Can

Respond to Indiana Department of

Correction's Petition for Reimbursement

(sic) of Costs Expended Pursuant to Court

Order (filed August 17, 1994 (#213));

(2) STRIKES Bill Sampley's Motion for

Leave to File Delayed Notice of Appeal

(filed August 17, 1994 (#212));

(3) GRANTS the plaintiffs’ Motion for

Continuance of Taxation of Costs (filed

August 22, 1994 (#215));

(4) DEFERS ruling on Supt. Duck-

worth's verified bill of costs, AFFORDING

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Supt. Duckworth to and including December

30, 1994 within which to file an affidavit in

support of the items sought as part of the

costs as required by 28 U.S.C. § 1924,

detailing why the unidentified discovery is

recoverable and was necessary; and

(5) DENIES the Indiana Department of

Correction's "Petition for Reimbursement of

Costs Expended Pursuant to Court Order"

(filed August 11, 1994 (#210)).

SO ORDERED.

SO ORDERED.

ENTERED: _November 22, 1994 _

ls/ Robert L. Miller, Jr. _

Robert L. Miller, Jr., Judge

United States District Court

cc: J. Menadue

D. Moore

B. Sampley

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