United States District Court, D. Nevada
DANIEL V. MERRY, Plaintiff,
BRIAN SANDOVAL, et al., Defendants.
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NO. 77
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
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.
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.
thorough review, it is recommended that Defendants'
motion be denied.
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
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.
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.)
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).
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.
Rule 68 and the Offer of Judgment Protocol
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.
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