UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

MELISSA VANPATTEN, Personal 

Representative for the Estate of Melinda 

Van Patten, 

Plaintiff, 

v. 

WASHING TON COUNTY, by and through 

the Washington County Sheriffs Office, 

Defendant. 

A COST A, Magistrate Judge: 

Introduction 

Case No. 3:15-cv-0891-AC 

OPINION AND ORDER 

This case is before the court on defendant Washington County's ("the County") cost bill. 

(ECF No. 143.) Plaintiff Melissa Van Patten ("Plaintiff') filed this lawsuit in 2015, alleging 

federal civil-rights violations and state-law causes of action. (ECF No. 1.) Following a grant of 

partial summary judgment in favor of the County and a jury verdict on Plaintiffs remaining 

claim, the court entered final judgment for Washington County on all claims. (ECF No.142.) 

PAGE 1-OPINION AND ORDER [TJP] 
Plaintiff objects generally to the taxation of costs in this matter based on her financial 

circumstances, the chilling effect on future civil-rights litigants, and the closeness and 

importance of the issues raised in the lawsuit. (ECF No. 146.) Plaintiff also objects specifically 

to certain costs claimed by the County. (Id.) For the reasons explained below, the court denies 

the County's bill of costs in full. 1 

Background 

In 2013, Sheriffs Deputies Dylan Leach and Leanne Stoneberg and Reserve Deputy 

Melinda Purvis (collectively, "the Deputies"), employees of the County, responded to a 

domestic-violence call at the home of Melinda Van Patten and Ken Van Patten. Van Patten v. 

Leach, No. 3:15-cv-0891-AC, 2016 WL 5928803, at *1 (D. Or. Oct. 11, 2016). The Deputies 

did not arrest Ken Van Patten. Id. at* 2. On the following day, Ken Van Patten shot Melinda 

Van Patten twice, killing her, before committing suicide. Id. at * 1. Plaintiff, as personal 

representative of Melinda Van Patten's estate ("the Estate"), filed this lawsuit against the 

Deputies and the County, alleging claims under 42 U.S.C. § 1983 and Oregon tort law. (First 

Am. Comp!. (ECF No. 1) ifif 32-72.) 

The parties vigorously contested Plaintiffs claims and the County's defenses. The 

County filed a motion for summary judgment which was thoroughly briefed by all parties. (See 

ECF Nos. 27, 35, 36, 40.) The court granted partial summary judgment against Plaintiff on Van 

Patten's §1983 claims and some state-law claims. Van Patten, 2016 WL 5928803, at * 1. 

Plaintiffs remaining claim for statutory liability under the mandatory-arrest provision of 

Oregon's Abuse Prevention Act, ORS § 133.055, went to trial. Following a three-day trial, a 

1 The parties have consented to jurisdiction by magistrate judge in accordance with28 U.S.C. 

§ 636(c). 

PAGE 2- OPINION AND ORDER [TJP) 
jury concluded that the County was not liable because the Deputies did not have probable cause 

to arrest Ken Van Patten. (ECF No. 140.) 

Legal Standard 

Under Federal Rule of Civil Procedure ("Rule") 54( d), costs generally are awarded to the 

prevailing party in a civil action as a matter of course unless the court directs otherwise. Rule 

54( d) creates a presumption in favor of awarding costs to the prevailing party. Ass 'n of 

Mex.-Am. Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000) (en bane). The types of 

costs that courts may award under Rule 54(d) are enumerated in 28 U.S.C. §§ 1920 and 1821. 

District courts have discretion to refuse or reduce an award of costs, but must provide a reason 

for doing so. Escriba v. Foster Poultry Farms, Inc., 743 F. 3d 1236, 1247-48 (9th Cir. 2014). 

The Ninth Circuit identifies the following a non-exhaustive list of reasons for denying costs: "(1) 

the substantial public importance of the case, (2) the closeness and difficulty of the issues in the 

case, (3) the chilling effect on future similar actions, ( 4) the plaintiffs limited financial 

resources, and (5) the economic disparity between the parties." Id. (citing Ass'n of Mex.-Am. 

Educators, 23 l F.3d at 592-93). The factors are only a starting point for analysis, and do not 

require any specific conclusion. Draper v. Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016). 

Analysis 

The County requests $9,879.42 in costs. (ECF No. 143, at 2.) Plaintiff first argues that 

taxation of costs is inappropriate and inequitable under the circumstances of this lawsuit, and 

alternatively contends that specific costs requested were not reasonable and necessary for use in 

the case. 

I. Limited financial resources. 

Plaintiff first objects to taxation of costs because of her limited financial resources. 

PAGE 3 - OPINION AND ORDER [TJP] 
Plaintiff submits a sworn declaration regarding the financial assets of the Estate and her own 

financial circumstances. (Deel. of Melissa Van Patten (ECF No. 146, ex. 1 ).) First, the Estate 

has no assets other than this now-dismissed lawsuit. (Id if 2.) Thus, Plaintiff would be fully 

responsible for the taxation of costs. Second, Plaintiff was laid off in 2016 and is currently 

unemployed. (Id. if 4.) She is also the parent of two minor children, one of whom has autism. 

(Id. if 3.) Although Plaintiff has some liquid assets, she is also financially responsible for the 

additional care which one of her child needs due to his developmental disability. (Id '1['1[ 3, 5.) 

She has expended approximately $5,000 in her own litigation costs. (Id. if 6.) Plaintiff asserts 

that paying the cost bill would be a substantial financial burden on her and her family. (Id. '1['1[ 5, 

7.) 

Taxing costs is inappropriate where the award would render a party indigent, considering 

a party's financial resources. Escriba, 743 F.3d at 1248; Stanley v. Univ. ofS. Cal., 178 F.3d at 

1079. For example, awarding costs was an abuse of discretion against a plaintiff who was 

incarcerated, unemployed, had no bank account, assets, or other income, and owned thousands of 

dollars in restitution. Draper v. Rosario, 836 F.3d 1072, 1089 (9th Cir. 2016). The Ninth 

Circuit held that the plaintiffs indigency was independently sufficient to rebut the presumption 

in favor of taxing costs. Id. Here, Plaintiffs financial circumstances are not so dire as the 

Rosario plaintiff, due to her liquid assets and lack of substantial debt. Plaintiffs financial 

resources nonetheless weigh against granting the cost bill. She is unemployed, and has 

substantial financial obligations as to her children. Persuasive authority for considering a 

plaintiffs family obligations exists in the Ninth Circuit's unpublished and non-precedential 

decision in Guitron v. Wells Fargo Bank, NA, 619 F. App'x 590, 592 (2015) (considering a 

plaintiffs status as a single mother of two children in ordering a reduction in an award of costs). 

PAGE 4- OPINION AND ORDER [TJP] 
Accordingly, Plaintiffs financial circumstances weigh against allowing the County's cost bill. 

II. Chilling effect and importance of issues. 

Plaintiff also asserts that taxation of costs would have a chilling effect on future civilrights plaintiffs. Plaintiff notes that her original complaint asserted federal civil-rights claims, 

and argues that her claim that went to trial was "grounded on the same facts [as her civil-rights 

claims] and carried the same essence as a civil rights claim." (Mot. for Disallowance of Cost 

Bill (ECF No. 146) at 4.) Although some chilling effect may result, Plaintiffs arguments 

regarding the potential for a chilling effect does not differentiate this civil-rights lawsuit from 

any other lawsuit filed under § 1983 or against law-enforcement. There is no blanket prohibition 

on taxing costs against unsuccessful civil-rights litigations. Instead, the chilling-effect 

consideration is better understood as closely related to the importance, closeness, and novelty of 

the issues raised in the lawsuit. In discussing the potential for a chilling effect on other civilrights plaintiffs, the Ninth Circuit noted the importance of "civil rights litigants who are willing 

to test the boundaries of our laws" in achieving progress after Brown v. Board of Education, 347 

U.S. 483 (1954). Stanley, 178 F.3d at 1080. Thus, the potential for a chilling effect is greater 

when a plaintiff asserts novel civil-rights claims or claims addressing important societal issues. 

This case indeed presented novel and important issues. Plaintiffs claims involved issues 

of first impression regarding the scope and nature of the mandatory-arrest provision of the Abuse 

Prevention Act. The resolution of these novel issues was not obvious, particularly because the 

lack of precedent interpreting ORS § 133.055 and complexity of the issues required recourse to 

legislative history. Moreover, the underlying issue of the appropriate response to domestic 

violence is an issue of national importance. Domestic violence is not a new problem in our 

society, but public discussion of prevention of and appropriate response to domestic violence is 

PAGE 5 - OPINION AND ORDER [TJP] 
only increasing. This lawsuit fell squarely within that public discussion. Although Plaintiff did 

not prevail on her claims, she raised important questions regarding law enforcement's role in 

preventing and responding to domestic violence. 

Rule 54(d) "vests in the district court discretion to refuse to award costs." Ass'n of 

Mex.-Am. Educators, 231 F.3d at 591. The close, important issues presented in this lawsuit and 

Plaintiffs limited financial resources are sufficient for the court to exercise such discretion. 

Accordingly, the court denies the County's cost bill. The court therefore does not address 

Plaintiffs objections to taxing specific costs. 

Conclusion 

The County's Cost Bill (ECF No. 143) is DENIED. 

IT IS SO ORDERED. 

DATED this 24th day of August, 2017. r / .. 

r/'Vr /( ) / 

PAGE 6 - OPINION AND ORDER 

'... •'4 v \ '.....,.J ,./._ ... 

71'1 JOHN V. ACOSTA 

\ lJ;nited States Magistrate Judge 

•.J 

[TJP]