United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, United States District Judge
CAUSE is before the Court on the Report and Recommendation
(Doc. No. 164; Report) entered by the Honorable Patricia D.
Barksdale, United States Magistrate Judge, on January 18,
2017. In the Report, Judge Barksdale recommends that the
Court grant in part, and deny in part, Defendants' Motion
to Tax Costs (Doc. No. 153; Motion), which Defendants filed
on April 5, 2016. See Report at 9. Specifically,
Judge Barksdale recommends that the Court grant the Motion
only to the extent that it award Defendants $2, 139.25 in
taxable costs. See id. Plaintiff John Brown (Brown)
filed his Objection to Report and Recommendation (Doc. No.
165; Objections) on February 7, 2017. Defendants did not respond
to Brown's Objections, and the deadline to do so has now
passed. Accordingly, this matter is ripe for review.
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b). If no specific
objections to findings of fact are filed, the district court
is not required to conduct a de novo review of those
findings. See Garvey v. Vaughn, 993 F.2d 776, 779
n.9 (11th Cir. 1993); see also 28 U.S.C. §
636(b)(1). However, the district court must review legal
conclusions de novo. See Cooper-Houston v.
Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994);
United States v. Rice, No. 2:07-MC-8-FTM-29SPC, 2007
WL 1428615, at *1 (M.D. Fla. May 14, 2007).
Objections, Brown does not contest Judge Barksdale's
determination regarding which costs are properly taxed
against him pursuant to Federal Rule of Civil Procedure
(Rule(s)) 54(d) and 28 U.S.C. § 1920 or the amount of
those costs. Instead, he asserts that: (1) the Court
should withhold entry of this judgment “until after
completion of the pending appellate proceedings[;]” and
(2) because of his financial condition, the Court should
“eliminate or substantially reduce the amount of costs
awarded against him.” Objections ¶¶ 5, 9.
Brown's “Pending” Appellate
filed a notice of appeal (Doc. No. 154) in this action on
April 21, 2016. On December 2, 2016, the United States Court
of Appeals for the Eleventh Circuit entered an order
dismissing Brown's appeal pursuant to Eleventh Circuit
Rule 42-2(c) for failure to prosecute, and specifically for
his failure to file an appellant's brief within the time
fixed by the applicable rules. See Doc. No. 162
(citing 11th Cir. R. 42-2(c)). According to Eleventh Circuit
An appeal dismissed pursuant to this rule may be reinstated
only upon the timely filing of a motion to set aside the
dismissal and remedy the default showing extraordinary
circumstances, accompanied by the required brief and
appendix. Such a motion showing extraordinary circumstances,
accompanied by the required brief and appendix, must be
filed within 14 days of the date the clerk enters the order
dismissing the appeal. The timely filing of such a
motion . . . is the exclusive method of seeking to set aside
a dismissal entered pursuant to this rule.
11th Cir. R. 42-2(e) (emphasis added). As such, Brown was
required to file a motion to set aside the dismissal -
together with his brief - no later than December 16, 2016.
Upon review of the appellate court docket, it appears that
Brown did not file any such motion within the requisite time
frame. Although Brown ultimately did submit a motion to the
Eleventh Circuit on January 5, 2017, in accordance with its
established procedures, the court returned the motion to
Brown without filing it. See Brown v. Riedl, No.
16-11828 (11th Cir. 2017). Thus, the Court concludes that
there are no appellate proceedings currently pending with
respect to this action.
the absence of any pending appellate proceedings, Brown
nevertheless argues that “[i]t would be a waste of
judicial labor and effort to impose a judgment of costs
before the appellate process is completed.” Objections
¶ 5. He further states that “he will file his
[appellate] brief shortly and will ask the Eleventh Circuit
 to recall its mandate at that time.” Id.
¶ 4. While Brown may believe that his appeal is still
pending, having determined that this is not the case, the
Court concludes that Brown's request to withhold entry of
this judgment pending appeal is due to be denied. Brown's
first objection, therefore, is overruled.
Brown's Financial Condition
alternatively contends that the Court should “eliminate
or substantially reduce” the award of costs against him
due to his “financial condition.” Objections
¶ 9. In doing so, he asserts that the Court previously
found him to be indigent and allowed him to proceed in
forma pauperis, and that as a prison inmate he is not
allowed to earn an income. See id. ¶¶ 6-7.
Although he provides no further information regarding his
finances, Brown offers to “update his financial
information” if the Court desires. Id. ¶
Defendants filed the Motion on April 5, 2016. See
generally Motion at 3. Although Brown had ample
opportunity to respond to the Motion and establish his
inability to bear a cost judgment, he did not do so.
See Report at 2. After Defendants filed their
Supplement to the Motion at the Court's direction, Brown
had yet another opportunity to respond, and again did not do
so. See id. at 1-2. Nevertheless, Judge Barksdale
sua sponte considered Brown's financial
situation before recommending the taxation of certain costs.
See id. at 8. His protestations regarding his
inability to pay a cost award, made for the first time only
after entry of the Report, are untimely. Indeed, Eleventh
Circuit precedent expressly provides the district court with
discretion “to decline to consider a party's
argument when that argument was not first presented to a
magistrate judge.” Williams v. McNeil, 557
F.3d 1287, 1292 (11th Cir. 2009) ("Thus, we answer the
question left open in Stephens and hold that a
district court has discretion to decline to consider a
party's argument when that argument was not first
presented to the magistrate judge."); see also
Knight v. Thompson, 797 F.3d 934, 937 n.1 (11th Cir.
2015) (citing Williams for the proposition that
"district courts have discretion to decline to consider
arguments that are not presented to the magistrate
judge"); Lodge v. Kondaur Capital Corp., 750
F.3d 1263, 1274 (11th Cir. 2014) (citing Williams
for the proposition that "a district court, in reviewing
an R&R, has discretion to decline to consider a party's
argument that was not first presented to a magistrate
judge"). As such, the Court declines to consider
Brown's belated argument regarding his financial
even if the Court were to consider this belated objection,
Brown has failed to submit the substantial documentation
demonstrating a true inability to pay the costs assessed
against him as required to warrant a reduction of the amount
of costs to be taxed against him. See Chapman v. AI
Transport, 229 F.3d 1012, 1039 (11th Cir. 2000) (noting
that a court should “require substantial documentation
of a true inability to pay” as well as “clear
proof of the non-prevailing party's dire financial
circumstances” before considering a reduction in
costs). The mere fact that the Court found Brown to be
indigent and permitted him to proceed in forma
pauperis and that his circumstances have not materially
changed is not sufficient to establish his dire financial
circumstances. See Ang v. Coastal Int'l Sec.,
417 Fed.Appx. 836, 839 (11th Cir. 2011) (per curiam)
(affirming that a non-prevailing party's in forma
pauperis status and affidavit in support thereof does
not constitute substantial evidence of an inability to pay);
Mathews v. Crosby, 480 F.3d 1265, 1266-67 (11th Cir.
2007) (affirming that a non-prevailing inmate was not
entitled to a reduction of costs because of his indigence).
a review of the trial docket indicates that Brown
successfully garnered enough money to pay the $350.00 fee to
file his initial Complaint (Doc. No. 1; Complaint) in this
action, and despite later requesting to proceed here in
forma pauperis, he is slowly paying down the balance due
on his appellate filing fee. The Eleventh Circuit previously
affirmed a district court's refusal to reduce a costs
award in part because the non-moving party was financially
capable of paying the initial filing fee and subsequent
appellate fees. See Smith v. Warden, Hardee Corr.
Inst., 597 Fed.Appx. 1027, 1032 (11th Cir. 2015). Hence,
while it may be difficult for Brown to pay these costs, this
fact alone is not enough to merit a reduction under the
circumstances. Brown has failed to establish a true inability
to pay a cost award ...