# Appendix — Indiana Department of Correction v. Sampley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1220

## Text

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).

21a

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.

22a

)
)
)
)

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;

23a

(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).

24a

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

25a

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."

26a

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

27a

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

29a

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1263%3A2. Public record. Not legal advice.