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Merry v. Sandoval

United States District Court, D. Nevada

November 8, 2019

DANIEL V. MERRY, Plaintiff,
BRIAN SANDOVAL, et al., Defendants.



         This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.

         Before the court is Defendants' Motion for Attorneys' Fees and Costs. (ECF Nos. 77, 77-1 to 77-6, errata at ECF No. 78.) Plaintiff did not file a response.

         After a thorough review, it is recommended that Defendants' motion be denied.

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC). When he filed his original and first amended civil rights complaints under 42 U.S.C. § 1983, he was proceeding pro se. (ECF Nos. 4, 7.) He was granted in forma pauperis status. (See ECF No. 34.) He was represented by attorney Dan Winder, Esq., for a period of time, including for the filing of his second amended complaint (SAC). (ECF Nos. 12, 32.) Defendants filed their motion for summary judgment on November 16, 2018 (ECF No. 58), and Mr. Winder moved to withdraw as counsel for Plaintiff on November 26, 2018. (ECF No. 62.) The court granted the motion, and gave Plaintiff an extension of time to respond to the pending motion for summary judgment. (ECF No. 67.) Plaintiff was then given an additional twenty days to file his response. (ECF No. 69.) Plaintiff subsequently filed a motion for appointment of counsel (ECF No. 70), the court denied that motion, but gave Plaintiff another extension of time to file his response to the motion for summary judgment. (ECF No. 71.) Plaintiff failed to file a response.

         The SAC alleged that defendants Dr. Karen Gedney, Dr. Marsha Johns, Dr. David Mar, and Caseworker Irvin were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment with respect to treatment of his neck condition. Specifically, he alleged that Irvin knew that he was precluded from a top bunk assignment, but gave him a top bunk anyway, and he subsequently fell from the bunk causing further injuries. He also averred that Dr. Gedney improperly delayed his visit to a neurosurgeon for four months; that Dr. Gedney delayed his recommended neck surgery for over a year; and that Drs. Gedney, Johns and Mar failed to follow the recommendations of the pain specialist.

         It was recommended that summary judgment be granted in Defendants' favor because his first two Eighth Amendment claims against Irvin and Dr. Gedney were barred by the applicable statute of limitations, and as to the remaining claims, the evidence presented by Defendants (which went unrefuted by Plaintiff as he did not respond) did not demonstrate deliberate indifference. (ECF No. 73.) District Judge Du adopted and accepted the report and recommendation and judgment was entered in Defendants' favor. (ECF Nos. 74, 75.) Plaintiff filed a belated objection to the report and recommendation after judgment had been entered, and well outside the deadline for filing objections. (ECF No. 76.)

         Several days later, Defendants filed this motion seeking attorneys' fees and costs, including expert costs, under Federal Rules of Civil Procedure 54 and 68, Local Rule 54-14, and 42 U.S.C. § 1988. Defendants assert that Plaintiff rejected Defendants' offer of judgment and Defendants ultimately prevailed. They seek to recover fees and costs, including expert costs, in the amount of $40, 212.50 ($23, 325 in attorney's fees, $16, 575 in expert witness fees, and $312.50 in costs).


         Defendants seek to recover costs under: (1) Federal Rule of Civil Procedure 68; (2) 42 U.S.C. § 1988; and, (3) Federal Rule of Civil Procedure 54(d). The court will discuss each argument, in turn.

         A. Rule 68 and the Offer of Judgment Protocol

         Federal Rule of Civil Procedure 68(a) provides that "a party defending against a claim may serve an opposing party an offer to allow judgment on specified terms, with the costs then accrued." Under section (d) of the Rule, "[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made." Fed.R.Civ.P. 68(d).

         Defendants they issued an offer of judgment to Plaintiff in the amount of $10, 001, exclusive of attorney's fees and costs, on January 19, 2018. Plaintiff failed to respond, which they assert served as a rejection of the offer under the rule. Judgment was ultimately entered in favor of Defendants. Therefore, they contend they are entitled to recover ...

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