David Lane, Jr . v. Michael Person

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2710
DAVID L ANE, JR .,
Plaintiff-Appellant,
v.
M ICHAEL PERSON ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:19-CV-259-RLM-MGG — Robert L. Miller, Jr., Judge.
____________________
S UBMITTED JULY 20, 2022* — DECIDED J ULY 21, 2022
____________________
Before BRENNAN , S CUDDER , and K IRSCH , Circuit Judges.
PER C URIAM . David Lane was detained on state criminal
charges, including battery, at the jail in LaPorte County, Indi-
ana. He is now in the custody of the Indiana Department of
* We have agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. FED . R. A PP . P.
34(a)(2)(C).

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2 No. 21-2710
Correction. Lane sued Michael Person, a doctor at the jail, for
deliberate indifference to Lane’s medical condition under
42 U.S.C. § 1983. Person prevailed at summary judgment and
requested roughly $4,000 in costs, which the district court al-
lowed over Lane’s objection. Lane appeals. Because the bill of
costs contains an unrecoverable witness fee, we modify the
judgment to cap the fee at the $40 statutory maximum; other-
wise, we affirm.
While in jail, Lane sought medical care from Person for an
acoustic neuroma, or non-cancerous tumor. Person did not or-
der surgical removal of the tumor, which Lane believes was
required at the time. (He later had the surgery.) Lane sued
Person for providing objectively unreasonable care in viola-
tion of his rights under the Fourteenth Amendment. During
discovery, Person deposed Rick Nelson, a doctor who also
treated Lane. Nelson testified that Person appropriately ad-
dressed Lane’s condition by ordering multiple MRIs and a
consultation with a specialist. Person later moved for sum-
mary judgment. The district court determined that no reason-
able factfinder could find Person liable and entered judgment
on March 23, 2021. On March 24, 2021, Lane filed a motion to
reconsider, which the court denied on July 19, 2021.
After prevailing, Person filed a bill of costs under Federal
Rule of Civil Procedure 54(d) requesting $4,017.59. Of that,
$2,750 was a one-day witness fee for Nelson. Lane objected to
the bill of costs on the ground that his case had merit and Per-
son should not have won. Lane did not specifically challenge
any cost. The court ruled that Lane’s argument did not over-
come the presumption favoring the prevailing party’s recoup-
ment of costs, and on September 13, 2021, it awarded the full
amount.

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No. 21-2710 3
On September 17, 2021, Lane filed his notice of appeal.
Lane says he is appealing both the judgment and the bill of
costs. But because more than 30 days passed between the de-
nial of his motion to reconsider the summary-judgment deci-
sion and his notice of appeal, it is too late to appeal the judg-
ment. 28 U.S.C. § 2107(a), F ED. R. A PP . P. 4(a)(1)(A). Therefore,
by prior order, Lane v. Person, No. 21-2710 (7th Cir. Mar. 9,
2022) we limited this appeal to a review of the decision on
costs. See Nestorovic v. Metro. Water Reclamation Dist. of Greater
Chicago, 926 F.3d 427, 431 (7th Cir. 2019).
As the district court explained, there is a presumption that
a prevailing party recovers costs under Rule 54(d). The pre-
sumption applies only to those costs that are enumerated in
28 U.S.C. § 1920, however. As a result, we ask two questions
when reviewing an award of costs: “(1) whether the cost im-
posed on the losing party is recoverable and (2) if so, whether
the amount assessed for that item was reasonable.” Majeske v.
City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000). We “review
carefully whether an expense is recoverable.” Id. (quoting SK
Hand Tool Corp. v. Dresser Indus., Inc., 852 F.2d 936, 943
(7th Cir. 1988)). But we will disturb a decision on reasonable-
ness only when there is a “clear abuse of discretion.” Majeske,
218 F.3d at 824 (quoting Weeks v. Samsung Heavy Indus. Co.,
Ltd., 126 F.3d 926, 945 (7th Cir. 1997)).
Lane now argues that Person unreasonably recovered
$2,750 for only a couple hours of Nelson’s time. But there is a
more fundamental problem. Although § 1920 includes wit-
ness fees as an expense that may be taxed as a cost, another
statute, 28 U.S.C. § 1821, more specifically addresses the al-
lowable amount. See Crawford Fitting Co. v. J.T. Gibbons,
482 U.S. 437, 441 (1987). Thus, when a prevailing party seeks

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4 No. 21-2710
witness fees under Rule 54 “a federal court is bound by the
limit of § 1821(b), absent contract or explicit statutory author-
ity to the contrary.” T.D. v. LaGrange School Dist. No.
102, 349 F.3d 469, 481 (7th Cir. 2001) (quoting Crawford,
482 U.S. at 439 (1987)). Section 1821(b) limits Nelson’s fee to
$40 per day, and no other authority allows more. Even the
itemized list that Person submitted instructs that costs be cal-
culated under § 1821(b). Nelson’s fee is thus capped at $40 for
his single day of testimony.
As a result, Nelson’s full fee of $2,750 could not be taxed
as a cost under § 1920 and Rule 54(d). Awarding it was a legal
error and, by definition, an abuse of discretion. See Tsareff v.
ManWeb Servs., Inc., 794 F.3d 841, 848 (7th Cir. 2015). The dis-
trict court’s explanation that costs are presumptively awarded
is correct but not relevant to the question whether a specific
cost may be included in the bill of costs.
Person now suggests that Nelson’s witness fee is recover-
able as an expert’s fee under Federal Rule of Civil Procedure
26. There are circumstances in which a party may recoup a fee
this way. See Halasa v. ITT Edu. Servs., Inc., 690 F.3d 844, 852
(7th Cir. 2012) (allowing a plaintiff to be reimbursed for his
expert’s fee for deposition conducted by the defendant). But
even if Nelson was an expert witness (and as best we can tell
he was not disclosed as one, nor did Person request his fee
under Rule 26), he was Person’s retained expert, which distin-
guishes this case from Halasa. And a party’s own expert wit-
ness fee generally is not recoverable as a cost. Abernathy v. E.
Ill. R.R. Co., 940 F.3d 982, 994–95 (7th Cir. 2019) (prevailing
party cannot “recover the entire ‘reasonable fee’ he paid his
expert witnesses for their depositions”).

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No. 21-2710 5
Person also argues that Lane waived “any” argument
against the costs award by not challenging any line item. But
we do not believe it would serve the ends of justice for a pre-
vailing defendant to obtain a windfall at the expense of an in-
carcerated and indigent pro se litigant who objected—
broadly, to be sure—to the bill of costs. See Humphries v.
CBOCS West, Inc., 474 F.3d 387, 391 (7th Cir. 2007) (consider-
ing argument, raised only on appeal, in the interest of justice).
The extent of the cost was capped by statute, and Lane’s fil-
ings brought that pure issue of law to our attention. See Bour-
geois v. Watson, 977 F.3d 620, 632 (7th Cir. 2020).
Therefore, we remit the cost recovery for Nelson’s witness
fee to the statutorily allowable $40, so Person may recover to-
tal costs of $1,307.59. As so M ODIFIED, the judgment is
A FFIRMED.

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