Opinion
Case No. 97-1483-WEB
March 18, 2003
MEMORANDUM AND ORDER
This matter is before the court upon remand from the Tenth Circuit to reconsider the award of costs. See Lewis v. Bd. County Comm. of Sedgwick County, Nos. 01-3158 01-3172 (Unpublished), 2003 WL 116129 (10th Cir. Jan. 14, 2003). The Tenth Circuit noted that when this court entered its order directing each party to bear its own costs, it did not give any reason for denying costs to Sedgwick County as the prevailing party.
Rule 54(d)(1) provides in part that costs "shall be allowed as of course to the prevailing party unless the court otherwise directs." The allowance or disallowance of costs to a prevailing party is within the sound discretion of the district court, but the court's discretion is limited in two respects: first, it is well established that Rule 54 creates a presumption that the district court will award costs to the prevailing party; and second, the district court must provide a valid reason for not awarding costs. Zeran v. Diamond Broad., Inc., 203 F.3d 714, 722 (10th Cir. 2000).
After reconsidering the issue of costs and the applicable law, and after hearing the arguments of the parties, the court concludes that the costs of this action should be awarded to Sedgwick County as the prevailing party. Plaintiff argues — and the court initially agreed — that he should be considered partially successful because he persuaded the jury that his constitutional right against the use of excessive force was violated. But the fact remains plaintiff failed to prove other elements of his claim that were essential to any recovery against the County. Under the ruling of this court and the Tenth Circuit, plaintiff was entitled to no relief and his claims were dismissed with prejudice. The County thus prevailed on its denial of liability because all of the elements of a viable claim could not be established. After reconsidering the issue, the court cannot reasonably consider plaintiff to be partially successful on his claim against the County. Nor are there any equitable grounds (such as fraud or bad faith) here to overcome the presumption that costs will be awarded to the prevailing party.
Conclusion.
In accordance with the Tenth Circuit's mandate, the court has reconsidered the issue of costs, and orders that the defendant Board of Sedgwick County Commissioners, Sedgwick County, Kansas, as the prevailing party, shall recover its costs of action of the plaintiff Carroll W. Lewis, Jr.
IT IS SO ORDERED.