I agree with Judge Bea.
A prisoner files a lawsuit, alleging that a prison guard needlessly slammed him into a wall. If that's true, then that's excessive force, and a violation of the Eighth Amendment.
The prison guard, by contrast, asserts the he didn't use any force on the inmate at all; instead, that as the guard reached for his radio, the inmate "placed his foot on the grill gate, and lunged his
body back towards" the guard, who in turn stepped out of the way of this attempted assault and watched as the inmate fell to the ground.
The case goes to trial, since there's a genuine issue of material fact. If the guard's telling the truth, the guard should win. If the inmate's telling the truth, the inmate should win.
The jury finds for the guard.
As the prevailing party, the guard's normally entitled to costs. So the district court awards the guard $3,018.35 in costs.
The inmate has nothing in his prison trust account, as well as unsatisfied restitution judgment, so in reality, there's no way the cost award actually matters. Either way.
But the Ninth Circuit holds, in an opinion by Judge Paez (joined by Judge Wardlaw), that the award of costs constituted an abuse of discretion, since such an award against an impecunious inmate would chill excessive force claims.
Judge Bea dissents.
Here's my take:
I would have thought it well within the trial court's discretion to deny costs. But it didn't do so. It thought that the routine award of costs made sense. That judge was on the ground. He saw the entire trial. This is precisely what we mean by "discretion," and I think we legitimately should defer to the district court's judgment here. Particularly when, as here, the underlying rule says that costs should ordinarily be awarded.
That's Judge Bea's argument in dissent -- articulated slightly differently than the way he puts it -- and it seems right to me.
But I think an even bigger point (or at least a dispositive one) relies on something that neither the majority or the dissent mentions. This case was all about credibility. One of the two parties was lying. Committing perjury, no less. This wasn't a case where someone was confused. The whole dispute revolved around whether the guard assaulted the inmate, and lied about it, or whether the inmate assaulted the guard (and lied about it).
The jury decided in favor of the guard. The inmate was the one lying.
I have no problem holding that a trial court can legitimately impose a cost award against someone who (the jury finds) fabricated the entire a lawsuit. That seems totally reasonable to me. Indeed, it's even more than reasonable: I think that costs should be awarded in such a setting. At a bare minimum. A made-up lawsuit imposes a ton of burdens on the other party, the least of which are the recoverable out-of-pocket costs described by the rule, so, yeah, when you lose such a claim, you should be forced to reimburse the other side for those costs.
Such an award would deter civil rights lawsuits with merit. It would deter civil rights suits that are made up. And I'm more than fine with that.
Now, yes, the trial court thought that the lawsuit was "hard fought". The lawyers may well have been awesome; Wilmer Cutler, after all, represents the (losing) plaintiff on appeal.
But that doesn't mean that the trial judge disagreed with the jury's necessary finding that it was the guard who was telling the truth and the inmate who wasn't. Again: If the trial court had thought that it was a close credibility contest, or would have decided the case the other way, then, yes, I could vdry easily see the trial court deciding not to award costs. But that's not what transpired here. Rather, the trial judge -- who sat through the entire trial and saw the witnesses testify -- exercised its discretion and decided that the (apparently untruthful) inmate should bear the costs.
That's not an abuse of discretion. At least on this record. A trial judge could, in my view, easily conclude that such an award, in those circumstances, makes sense.
Might an award of costs against a plaintiff who commits perjury in a civil rights case (or in which a reasonable jury or district judge could easily so find) "chill" valid civil rights complaints? Maybe. I guess. But it seems far more reasonable to conclude that they'd chill invalid complaints. And, as I said, I'm okay with that.
It's true that, here, the district court judge didn't make an express finding of perjury. But that's at least in part because you don't have to make any findings when you're entering the totally-routine award of costs. Plus, the jury pretty much necessarily found that the inmate was lying and the guard telling the truth. On a cold appellate record, I just don't see how you can find an abuse of discretion in such settings.
So Judge Bea gets my vote with respect to the cost issue. While the district court, which sat through the trial, could well have refused to award costs, it wasn't an abuse of discretion to go the other way either.
