John Draper v. D. Rosario

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN CLINT DRAPER, No. 14-16340 Plaintiff-Appellant, D.C. No. v. 2:10-cv-00032-KJM-EFB

D. ROSARIO, Officer; E.

ROGERS, Lieutenant, OPINION Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted May 11, 2016 San Francisco, California

Filed September 7, 2016

Before: Kim McLane Wardlaw, Richard A. Paez, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Bea SUMMARY*

Civil Rights

In an action brought pursuant to 42 U.S.C. § 1983 by a California state prisoner, the panel affirmed the district court’s dismissal of plaintiff’s procedural due process claim, affirmed the district court’s evidentiary rulings, and vacated the district court’s award of costs in favor of defendants and remanded.

Plaintiff alleged a violation of his Eighth Amendment right to be free from cruel and unusual punishment stemming from a physical altercation with a prison officer.…

Partial Concurrence and Partial Dissent by Judge BEA

*1076 OPINION

In this prisoner civil rights action, plaintiff John Clint Draper (“Draper”) alleged a violation of his Eighth Amendment right to be free from cruel and unusual punishment stemming from a physical altercation .with defendant Officer David Rosario (“Rosario”). Draper also alleged that in the administrative disciplinary proceeding that followed the altercation, the presiding officer, defendant Lieutenant E. Rogers (“Rogers”), deprived him of a fair hearing in violation of his Fourteenth Amendment procedural due process rights. The district court dismissed the due process claim for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 (“PLRA”). 42 U.S.C. § 1997e(a). The Eighth Amendment claim was tried before a jury, which returned a verdict in favor of Rosario. On appeal, Draper argues that the district court erred in dismissing his procedural due process claim and in excluding the testimony of' a certain prisoner who allegedly witnessed the altercation. He also argues that the district court erred in allowing opposing counsel to make improper statements during closing…

concurring in part and dissenting in part:

I agree with the majority that the judgment in favor of the defendants should be affirmed and thus join Parts I, II.A, II.B, and II.C of the majority opinion. I decline to join Part II.D. The district court did not abuse its discretion in taxing costs against plaintiff John Clint Draper because the district court justifiably followed the presumption of taxing costs against the losing party, here, Draper.

The district court entered judgment in favor of the defendants on June 24, 2014, and entered the order taxing costs against Draper on July 23, 2014. I would affirm the district court’s order taxing costs against Draper. Draper sued the defendants; his case went to trial, and he lost. The defendants sought to recoup from Draper $3,018.35 of costs under Federal Rule of Civil Procedure 54(d)(1). Draper does not dispute the amount of costs but contends that the defendants, who prevailed, should not be awarded costs at all. “Rule 54(d) creates a presumption for awarding costs to prevailing parties; the losing party must show why costs should not be awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). The district…