United States District Court, D. Colorado
B. Shaffer United States Magistrate Judge District of
Judge Craig B. Shaffer
action comes before the court on Plaintiff Jason Brooks'
“Motion for Review of Clerk's Bill of Costs
Determination.” Doc. 176. This court has carefully
considered the motion as well as the CCA Defendants'
Response (Doc. 178), the entire case file, and the applicable
law. For the following reasons, the court denies
civil litigation, it is inevitable that someone must
bear the costs associated with the lawsuit. Federal Rule of
Civil Procedure 54(d) provides that costs are to be awarded
to a prevailing party as a matter of course, unless otherwise
provided by statutes, rules, or court orders. “[I]t is
well established that Rule 54 creates a presumption that the
district court will award costs to the prevailing
party.” Cantrell v. Int'l Bhd. of Elec.
Workers, AFL-CIO, Local 2021, 69 F.3d 456,
458-59 (10th Cir. 1995). When a losing party seeks to shift
the burden of costs, it necessarily entails a conclusion that
it is fairer for the prevailing party to be saddled with
those expenses. Consequently, the burden is on the
cost-opposing party to overcome this presumption.
Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180,
1190 (10th Cir.2004). Furthermore, when a district court
denies costs to a prevailing party, it must provide a valid
reason for the denial. Id.
case, Plaintiff proceeded in forma pauperis, and his
indigence is a factor for this court's consideration in
determining whether to deny Defendants' presumptive
entitlement to costs. Plaintiff's indigence is by no
means dispositive and the court observes that Congress has
specifically provided that litigants proceeding in forma
pauperis shall be liable for costs in the same manner
“as in other proceedings.” 28 U.S.C. §
1915(f)(1). Further, indigency alone “is not sufficient
in itself to overcome the presumption” that costs will
be awarded to the prevailing party. Mundell v. Bd. of
County Com'rs of Saguache County, No.
05-cv-00585-REB-MJW, 2007 WL 1061510, *1 (D. Colo. April 5,
2007) (unpublished decision) (finding that “[a]lthough
indigency is one circumstance that may justify a denial of
costs, in this circuit, it is not sufficient in itself to
overcome the presumption created by Rule 54(d)(1).”).
motion, Plaintiff relies on his indigence and his good faith
in bringing his claims as reasons to deny the Defendants an
award of costs. Doc. 176 at 1-2. Plaintiff stated that he
would supplement his brief with financial support for his
claim of idigency; however, to date, no documents have been
provided to this court. While the court is sympathetic to
Plaintiff's financial hardships, it also agrees that
“[j]ust as non-indigent litigants must consider the
relative merits of their lawsuit against the pain an
unsuccessful suit might inflict on their pocketbook, so must
[indigent plaintiffs] learn to exercise discretion and
judgment in their litigious activity and accept the
consequences of their costly lawsuits.” McGill v.
Faulkner, 18 F.3d 456, 460 (7th Cir.1994).
“Indeed, because the in forma pauperis statute
frees them from the obligation of paying filing fees, costs
of service, etc., the specter of a judgment for costs is one
of the few mechanisms that serve to check and moderate the
litigiousness of indigent parties.” Jorgensen v.
Montgomery, No. 06-cv-00853-MSK-BNB, 2009 WL 1537958, at
*2 (D. Colo. May 31, 2009).
the court notes that Plaintiff has pointed to nothing that
the Defendants have done that caused or exacerbated his
indigence, and - as to his good faith - the court assumes
that all of the parties to this action have litigated in good
faith. Consequently, the court finds that on balance,
Plaintiff's indigency does not necessitate a conclusion
that the costs associated with this litigation should be
imposed on Defendants.
for the foregoing reasons, the court DENIES Plaintiff's
“Motion for Review of Clerk's Bill of Costs
Determination.” Doc. 176. Defendants - as the
prevailing parties - are entitled to their costs pursuant to
Fed.R.Civ.P. 54(d)(1). Plaintiff's counsel shall ensure
that Plaintiff is notified of this court's decision and
shall provide Plaintiff with a copy of this
 The court recognizes that
Plaintiff's counsel has moved to withdraw as attorney of
record in this case. Doc. 177. When Plaintiff's counsel
has completed his above obligations - as evidenced by an
affidavit filed with the court - the ...