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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13885
Non-Argument Calendar
________________________
D.C. Docket No. 2:06-cv-14201-RLR
GLENN C. SMITH,
Plaintiff-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
LARRY BARRINER,
TONI BOWDEN,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 9, 2017)
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Before JORDAN, ROSENBAUM and FAY, Circuit Judges.
PER CURIAM:
Glenn C. Smith, a Florida prisoner proceeding pro se, appeals judgment in
favor of the Florida Department of Corrections (“FDOC”) in his 42 U.S.C. § 1983
action alleging retaliatory transfer in violation of the First Amendment. We affirm
in part and dismiss in part.
I. BACKGROUND
Smith is serving consecutive life sentences for convictions of sexual battery,
assault, and a lewd and lascivious act upon a child. He has been incarcerated since
1992. During the course of his incarceration, Smith has filed “between sixty and
seventy” lawsuits against the FDOC and its employees, and “between two hundred
and three hundred” administrative grievances. Am. Mem. Op. at 3 (Aug. 4, 2015).
In February 2003, while incarcerated at the Martin Correctional Institute (“MCI”),
Smith filed an appeal from a state court’s decision in favor of the FDOC and then
initiated another lawsuit against the FDOC. Fifteen days after the lawsuit was
filed, the FDOC issued an order to transfer him to the Okeechobee Correctional
Institute (“OCI”) for “population adjustment.” Id. at 9. On March 18, 2003, Smith
was informed he was being transferred. Smith resisted the transfer by refusing to
board the bus, but he ultimately was shackled and forced on the bus to OCI. Upon
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arrival, Smith was given a disciplinary report for disobeying orders to board the
bus.
In August 2006, Smith filed a complaint under 42 U.S.C. § 1983 against the
Secretary of the FDOC and Larry Barriner, a former corrections officer at MCI.
He alleged his transfer to OCI was retaliatory, challenged the constitutionality of
an FDOC regulation providing for disciplinary confinement, and challenged the
validity of the disciplinary report he had received. A majority of Smith’s claims
were dismissed on the pleadings for failure to state a claim, pursuant to 28 U.S.C. §
1915(e)(2)(B). The district judge dismissed Smith’s retaliatory-transfer claim,
because Smith failed to identify the individual who ordered his transfer and allege
how there was a link between the protected activity and the alleged retaliatory act.
On appeal, this court affirmed the dismissal of Smith’s retaliatory-transfer claim
against Barriner but vacated the dismissal and remanded on the retaliatory-transfer
claim against the Secretary of the FDOC, because Smith had alleged facts
sufficient to state a claim concerning a practice and custom of retaliatory transfers.
Smith v. Fla. Dep’t of Corr., 318 F. App’x 726, 728, 730 (11th Cir. 2008).
On remand, the district judge granted summary judgment in favor of the
FDOC on Smith’s retaliatory-transfer claim and concluded the record showed
Smith’s transfer was administered by people who had no personal knowledge
about him and for non-retaliatory reasons. On Smith’s appeal of summary
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judgment, this court determined only the causation element was at issue and
vacated summary judgment regarding Smith’s retaliatory-transfer claim, because
the district judge wrongly denied Smith a reasonable opportunity for discovery and
the inmate affidavits Smith had attached to his complaint, construed in the light
most favorable to Smith, were sufficient to allow a factfinder to conclude protected
conduct was a motivating factor. Smith v. Fla. Dep’t of Corr., 713 F.3d 1059,
1063-66 (11th Cir. 2013). In 2013 and 2014, inmates Drew C. Hartley, George S.
Rivera, and Anthony L. Schiller filed motions to intervene. The district judge
denied the motions, because allowing Hartley, Rivera, and Schiller to intervene in
Smith’s case would circumvent the Prisoner Litigation Reform Act requirement to
pay the full amount of the filing fee in the prisoners’ own cases.
The parties proceeded to a bench trial on Smith’s claim the FDOC had
retaliated against Smith in violation of his First Amendment rights by transferring
him to a new prison facility shortly after he had filed a lawsuit related to his
medical care at MCI in 2003. At trial, Smith was represented by appointed
counsel. Smith and thirteen witnesses testified on Smith’s behalf. 1 Smith testified
as to the number of lawsuits he had filed against the FDOC and his administrative
grievances, and he continued to file lawsuits and grievances despite believing he
1
Because Smith has failed to provide this court with a transcript of his bench trial, the summary
of the testimony and evidence is derived from the district judge’s amended memorandum
opinion.
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had been transferred at least three times in retaliation for his litigation activity.
Smith testified he had filed a lawsuit related to his medical care on February 26,
2003, and was notified on March 18, 2003, he was being transferred to another
institution, and he estimated he was responsible for “two hundred cases in both
state and federal courts.” Am. Mem. Op. at 3. Smith also conceded the only
evidence supporting his allegation he was transferred in retaliation for his First
Amendment activities was the temporal proximity between the filing of one of his
lawsuits and his transfer. Absent a showing he suffered a retaliatory transfer, the
issue of whether the FDOC had an unconstitutional practice or custom was
irrelevant and a standing issue would arise. Twelve inmates testified as to their
own alleged retaliatory transfers or threats of retaliatory transfer. Ronald
McAndrews, an FDOC official unfamiliar with Smith’s transfer and its
circumstances, testified regarding the FDOC’s pattern and practice of retaliatory
transfers.
The FDOC offered testimony from three FDOC employees. Vicki
Newsome, an Assistant Bureau Chief, testified the FDOC used substantially the
same transfer procedures in 2003 as those formalized in the 2005 manual and
transfers could be routine for a wide range of reasons specific to the inmate or
institutional needs, or non-routine for population adjustment or an inmate’s
medical needs. Newsome also testified Smith’s transfer was a population-
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adjustment transfer. No one outside the population-management office has the
ability to request such a transfer; Smith’s 2003 transfer was part of a plan to make
room for re-housing a group of “S-3” inmates, a medical needs designation not
applicable to Smith, at MCI after a dormitory at another institution capable of
housing “S-3” inmates closed. Am. Mem. Op. at 10.
Darlene Lumpkin, an employee in the state classification office, testified she
was the employee who selected Smith for transfer out of MCI based on the fact her
personal identity code was recorded in the file for his transfer. She followed her
usual practice of generating a list of inmates at MCI fitting criteria for the transfer,
determining inmate-by-inmate compatibility with the destination facility, and
selecting the inmates who fit the criteria and compatibility before moving to the
next inmate on the list. She testified she never selected an inmate for transfer with
knowledge of the inmate’s litigation or grievance activities; she had no direct
recollection of the 2003 transfer. Mary Ellen Dayan-Varnum, an employee in the
FDOC population management office at the time of Smith’s transfer, testified by
deposition. After reviewing a spreadsheet used during Newsome’s testimony, she
believed she had authored the population-adjustment plan affecting Smith.
Following the bench trial, the judge awarded judgment as a matter of law to
the FDOC and issued a memorandum opinion stating her findings of fact and
conclusions of law. The judge also included a detailed summary of the evidence
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and arguments at trial. She concluded, to prove his retaliatory transfer claim,
Smith had to show (1) he engaged in constitutionally protected conduct, (2) the
FDOC’s retaliatory act adversely affected the protected conduct, and (3) there was
a causal connection between the retaliatory act and the adverse effect on the
conduct. Once Smith established the protected conduct was a motivating factor
behind the harm, the burden of production would shift to the FDOC. The FDOC
could then prevail by showing it would have taken the same action in the absence
of the protected activity.
The judge concluded Smith had established the first prong, because the
conduct at issue was his First Amendment right to file lawsuits. With respect to
the second and third prongs, the judge noted Smith had to prove the existence of a
retaliatory act to satisfy either prong. To meet his burden, Smith first had to show
his own transfer was retaliatory before evidence pertaining to alleged retaliatory
policies of the FDOC would become relevant. The judge concluded Smith failed
to make this showing and therefore could not satisfy either the second or third
prong. Therefore, the burden did not shift to the FDOC.
The judge reasoned Smith had conceded his only evidence of retaliation was
the temporal proximity between the filing of his lawsuit and the timing of his
transfer. The evidence showed Smith was “a prolific filer,” and it “logically
follow[ed]” Smith “could subjectively believe a transfer was in retaliation for his
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litigation activities because, at any given time, [Smith] would have multiple
pending suits or grievances.” Am. Mem. Op. at 24. Smith’s witnesses, like Smith,
testified to their belief their transfers were retaliatory when many of those transfers
were, from the perspective of the FDOC, instituted for objective non-retaliatory
reasons. The judge found Smith’s temporal evidence was “no evidence at all.” Id.
Even assuming Smith had produced sufficient evidence to shift the burden to the
FDOC, the FDOC had demonstrated Smith was transferred as part of a general-
population-adjustment transfer and was selected for this transfer without any
knowledge on behalf of the FDOC of his litigation activities. The judge expressed
no opinion on the evidence Smith submitted at trial with respect to the alleged
practices of retaliation of the FDOC, because she concluded this evidence was
irrelevant to her decision.
After the judge entered the judgment, the FDOC filed a motion to tax costs,
requesting a total award of $5,371.13, consisting of $5,259.53 for deposition
transcripts and court reports, $60.00 for subpoena service fees, and $51.60 for
copies. Smith opposed the motion. The judge found the $30 rush fee reasonable,
declined to deny costs based on Smith’s indigent status, and granted the FDOC
$5,371.13 in costs. Smith later filed a motion to alter or amend the judgment,
pursuant to Federal Rule of Civil Procedure 59(e), and disputed certain factual
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findings. The judge granted the motion only to the extent she issued an amended
order clarifying the legal standard regarding causation.
Smith timely appealed and paid the filing fees for the appeal. He filed a
motion in the district court to grant him leave to proceed in forma pauperis (“IFP”),
so he could obtain the trial transcript without paying the cost. The judge denied
the motion. Smith filed a transcript order form in this court and requested the trial
transcript. This court notified Smith he must, within 14 days, make financial
arrangements with the court reporter for preparation of the trial transcript, or the
appeal would be dismissed without further notice. Smith moved for an extension
and claimed his IFP motion was still pending in the district court. The FDOC
moved to dismiss the appeal and argued Smith failed to make timely financial
arrangements to obtain the trial transcript. Smith responded and also moved for
appointment of counsel.
Construing Smith’s motion for extension of time as a motion for transcripts
at the government’s expense, this court denied that motion and denied Smith’s
motion for appointment of counsel. The judge held in abeyance the motion to
dismiss of the FDOC and granted Smith an extension to obtain and file a copy of
the trial transcript. After the extension period expired, the FDOC moved for a
ruling on its motion to dismiss and argued the appeal should be dismissed with
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prejudice. This court then issued an order directing the FDOC’s motion be carried
with the case. The motion is still pending before this court.
On appeal, Smith alleges numerous claims of error, primarily challenging
the judge’s conclusion he failed to present evidence sufficient to establish he
suffered a retaliatory transfer, such that the burden would shift to the FDOC to
show the transfer served legitimate penological interests. Smith also alleges the
judge erred in awarding costs to the FDOC and in denying the motions to intervene
filed by inmates Hartley, Rivera, and Schiller.
II. DISCUSSION
A. Failure to File a Transcript
The FDOC moves to dismiss Smith’s appeal for failure to file the trial
transcript with this court and argues we cannot review Smith’s arguments without
reference to the trial transcript. Under Federal Rule of Appellate Procedure 10(b),
the appellant has a duty to pay for the trial transcripts, if he intends to challenge
evidentiary findings on appeal. “[P]ro se appellants, like appellants represented by
counsel, must provide trial transcripts in the appellate record to enable this court to
review challenges to sufficiency of the evidence.” Loren v. Sasser, 309 F.3d 1296,
1304 (11th Cir. 2002). We have dismissed appeals where appellants have failed to
file the trial transcript, Abood v. Block, 752 F.2d 548, 550 (11th Cir. 1985), but we
have “decline[d] to do so,” where the district judge issued a memorandum order,
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“unlike [in] Abood, where the district court’s findings which appellant sought to
overturn were made orally.” United States v. Milam, 855 F.2d 739, 741 n.3 (11th
Cir. 1988).
Smith indisputably has failed to file the trial transcript in this case; the
judge, however, did issue a memorandum order containing a detailed summary of
the evidence presented at trial. While we decline to dismiss the appeal, id., we
must determine whether the omission of the transcript renders review of any issue
impossible, Loren, 309 F.3d at 1304. We conclude we cannot review meaningfully
the following five issues without consulting the trial transcript: (1) whether the
district judge erred in failing to consider the other circumstantial evidence of
Smith’s retaliatory transfer; (2) whether the district judge erred in reaching the
question of whether the temporal proximity of his transfer to his previous litigation
was, alone, insufficient to shift the burden of proof to the FDOC, without
considering other available circumstantial evidence; (3) whether the judge erred in
failing to admit evidence of other forms of retaliation in addition to that of
retaliatory transfers; (4) whether the judge erred in imposing limitations on inmate
testimony seeking to introduce, as FDOC party admissions, an OCI sergeant’s
comments regarding retaliatory transfers; and (5) whether the judge erred by
alternatively finding the FDOC presented sufficient evidence Smith’s transfer was
for non-retaliatory reasons, because the judge failed to consider whether those
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reasons were pretextual. Smith’s arguments regarding each of these issues rely on
“other evidence” or discussions presented at the bench trial and not reproduced in
either of the judge’s memorandum orders. Failure to comply with the Rule 10(b)
requirement of a trial transcript, in this case, results in the affirmation of the
evidentiary findings of the district judge, because this court is unable to review the
alleged error. See id.
B. Retaliatory Transfer
1. Relevance of Custom or Practice
Smith argues the district judge erred in concluding, unless Smith presented
evidence of his own retaliatory transfer, the evidence regarding practice or custom
of the FDOC was irrelevant. After a bench trial, we review de novo a district
judge’s conclusions of law and factual findings for clear error. Proudfoot
Consulting Co. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). In custom or
policy cases, we have held the injury and causation elements are distinct, and a
plaintiff’s failure to prove injury renders the consideration of a practice or custom
irrelevant. See Rooney v. Watson, 101 F.3d 1378, 1381 (11th Cir. 1996) (“Since
we have determined that [the defendant’s] conduct did not cause the [plaintiffs] to
suffer a constitutional deprivation, we need not inquire into [the defendant’s]
policy and custom . . . .”).
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The judge did not err in concluding, unless Smith presented evidence of his
own retaliatory transfer, the evidence regarding practice or custom of the FDOC
was irrelevant. Smith failed to present evidence he personally suffered a
retaliatory transfer. He presented only evidence other inmates suffered retaliatory
transfers. We have held, absent a showing of constitutional injury, the inquiry into
practice or custom is irrelevant. Rooney, 101 F.3d at 1381. Smith conceded at trial
his failure to prove his own retaliatory transfer would render irrelevant his
witnesses’ testimony showing practice or custom by virtue of other inmates’
transfers. The judge properly concluded, because Smith failed to present evidence
of his own retaliatory transfer, the evidence regarding practice or custom of the
FDOC was irrelevant.
2. Law-of-the-Case Doctrine
Smith argues this court’s conclusions in Smith, 713 F.3d at 1063-65, our
earlier decision in this case vacating the order granting summary judgment to the
FDOC, bound the district judge after the bench trial to consider Smith’s evidence
of a causal connection as dispositive proof of Smith’s retaliatory transfer. We
review de novo the district judge’s application of the law-of-the case doctrine.
Alphamed, Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1285 (11th Cir. 2004).
Under that doctrine, an appellate court’s findings of fact and conclusions of law are
generally binding in all subsequent proceedings in the same case in the trial court
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or on a later appeal. This That & The Other Gift & Tobacco, Inc. v. Cobb Cty., 439
F.3d 1275, 1283 (11th Cir. 2006). This doctrine only applies to the extent the issue
in question was within the scope of the prior appeal. Transamerica Leasing, Inc. v.
Inst. of London Underwriters, 430 F.3d 1326, 1332 (11th Cir. 2005).
Because of our decision to vacate summary judgment, the district judge was
not precluded at trial from concluding Smith’s trial evidence concerning retaliation
was insufficient to shift the burden to the FDOC to show the transfer served a
legitimate penological interest. In vacating the district judge’s summary judgment
in favor of the FDOC on Smith’s retaliatory-transfer claim, we concluded “only the
causal connection element [was] in question” and Smith’s witness testimony
“established that one could conclude that the protected conduct was a motivating
factor.” 713 F.3d at 1063. The judge’s determination regarding the sufficiency of
Smith’s evidence of injury in fact for burden shifting was outside the scope of our
prior decision. Transamerica Leasing, Inc., 430 F.3d at 1332.
Our decision in Smith was limited to reviewing an entirely separate element
of Smith’s claim (causation, not injury) and only determining whether a factfinder
could conclude protected conduct was a motivating factor, not whether retaliation
occurred as a conclusive fact. Smith, 713 F.3d at 1063. We also partially premised
our decision on the fact Smith had been improperly denied a reasonable
opportunity for discovery. Id. at 1064. Neither of these limitations nor the
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discovery defect was at issue, when the district judge determined Smith failed to
meet his burden at trial to show he suffered a retaliatory transfer. The judge was
not precluded, under the law-of-the-case doctrine, from concluding Smith failed to
produce sufficient evidence of his retaliatory transfer to shift the burden to the
FDOC. Transamerica Leasing, Inc., 430 F.3d at 1332.
3. Temporal-Proximity Evidence
Smith argues the district judge’s finding the temporal proximity between
Smith’s litigation and the alleged retaliatory transfer was insufficient to shift the
burden of proof to the FDOC was improper. We review for clear error a district
judge’s findings of fact, including her determinations regarding the weight of
evidence when acting as factfinder in a bench trial. Fischer v. S/Y Neraida, 508
F.3d 586, 591-92 (11th Cir. 2007). Once a plaintiff establishes protected conduct
motivated the harm, the burden of production shifts to the defendant to show it
would have taken the same action absent the protected activity. Smith, 713 F.3d at
1063. The judge’s findings will stand so long as they are supported by substantial
evidence. Fischer, 508 F.3d at 592 (noting the appellant bears a heavy burden,
especially where the evidence is largely testimonial, because the district judge had
the ability to observe the witnesses and evaluate their testimony and credibility
firsthand). We may reverse such determinations only when we are left with a
definite and firm conviction a mistake has been made after reviewing the entire
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evidence. Lincoln v. Bd. of Regents of the Univ. Sys. of Ga., 697 F.2d 928, 939-40
(11th Cir. 1983).
The district judge did not clearly err in determining temporal proximity was,
alone, insufficient to satisfy Smith’s burden of production. The judge afforded
little weight to Smith’s evidence of temporal proximity between Smith’s litigation
and his alleged retaliatory transfer, because the abundance of Smith’s litigation and
grievances rendered it likely any transfer for any purpose would be temporally
proximate to such activity. In arriving at this finding, the judge relied on our prior
statement “Smith is an extremely litigious inmate, having filed at least ten separate
lawsuits against the FDOC and its employees from 2001 to 2006,” Smith, 713 F.3d
at 1061, and excerpts from the trial transcript reproduced in the judge’s amended
memorandum order, stating:
THE COURT: How many grievances and/or lawsuits did you file
before March - April 2001?
PLAINTIFF [Mr. Smith]: I can’t say without listing my litigations, I
would say approximately five or six. 2001 – I’m sorry, I was up to
about 15 to 20, I believe, and grievances in regard to that would be
perhaps over a hundred, between a hundred and 200.
Am. Mem. Op. at 17 (alteration in original). In view of the evidence available, the
judge’s decision to attach low weight to Smith’s temporal-proximity evidence had
substantial support within the record. In contrast, the judge found credible the
FDOC witnesses’ testimony regarding the legitimacy of Smith’s transfer. We
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affirm, because the district judge did not clearly err in determining temporal
proximity alone was insufficient to satisfy Smith’s burden of production and shift
the burden to the FDOC. Fischer, 508 F.3d at 591-92.
4. Extraneous Statements
Smith argues the district judge erred in making extraneous statements
regarding whether, in some cases, prison officials may have valid penological
interests in transferring prisoners based on their extensive litigation or grievance
practice. We need not review a judge’s statements made in dicta, because appeals
to this court are from the judge’s final judgment and not the opinion. Walter Int’l
Prods., Inc. v. Salinas, 650 F.3d 1402, 1420 n.13 (11th Cir. 2011) (citing United
States v. $242,484.00, 389 F.3d 1149, 1153 (11th Cir. 2004) (en banc) (holding an
“appeal is not from the opinion of the district court, but from its judgment”)); see
also Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S. Ct. 447,
449 (1992) (holding “a federal court has no authority to give opinions upon . . .
abstract propositions, or to declare principles or rules of law which cannot affect
the matter in issue” (citation and internal quotation marks omitted)). Dicta
statements are those in an opinion unessential to the decision of a case. See
Schwab v. Crosby, 451 F.3d 1308, 1327 (11th Cir. 2006) (“[T]hat which is not
necessary to the decision of a case is dicta.”).
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In delivering her opinion, the district judge discussed some cases where
legitimate penological interests may motivate transferring a prisoner on the basis of
that prisoner’s extensive litigation or grievances, such as when that activity
interferes with administration or staff morale. The judge made clear this
discussion was wholly irrelevant to her decision and made no findings regarding
the evidence on this topic. This discussion was dicta, because it was not part of the
decision of the case. Schwab, 451 F.3d at 1327.
C. Award of Costs
Smith challenges the district judge’s award of costs to the FDOC and argues
his § 1983 action was not frivolous, unreasonable, or groundless. We review a
judge’s decision whether to award costs to the prevailing party for abuse of
discretion. Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007). An abuse
of discretion occurs if the judge bases an award upon findings of fact that are
clearly erroneous. Id.
We generally will not consider an issue not raised in the district court.
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). We
have recognized five exceptions, which arise when (1) the issue involves a pure
question of law and refusal to consider it would result in a miscarriage of justice;
(2) the party had no opportunity to raise the issue in district court; (3) the interest
of substantial justice is at stake; (4) the proper resolution is beyond any doubt; or
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(5) the issue presents significant questions of general impact or of great public
concern. Id. at 1332.
Federal Rule of Civil Procedure 54(d) provides a prevailing party is entitled
to an award of costs. Fed. R. Civ. P. 54(d)(1); Fireman’s Fund Ins. Co. v. Tropical
Shipping & Constr. Co., Ltd., 254 F.3d 987, 1012 (11th Cir. 2001). These costs
include (1) fees of the clerk and marshal, (2) fees for printed or electronically
recorded transcripts necessarily obtained for use in the case, (3) fees and
disbursements for printing and witnesses, (4) fees for exemplification and the costs
of making copies of any materials where the copies are necessarily obtained for use
in the case, (5) docket fees, and (6) witness fees authorized by statute. 28 U.S.C. §
1920. Rule 54(d) establishes a presumption costs are to be awarded to a prevailing
party but vests a district judge with discretion to decide otherwise. Chapman v. AI
Transp., 229 F.3d 1012, 1038 (11th Cir. 2000) (en banc). Although the district
judge may not consider the relative wealth of the parties in awarding costs, she
may consider the non-prevailing party’s financial status. Id. at 1039.
Smith makes three arguments concerning this issue: (1) the reasonableness
of the judge’s award of $0.15 per page; (2) the propriety of awarding costs to a
party represented by state attorneys, because that party actually bears no costs; and
(3) the propriety of the judge’s award of costs against an indigent plaintiff. Smith
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failed to preserve the first and second of these arguments, because he failed to
present them to the judge.
None of the Access Now exceptions apply to revive these unpreserved
arguments. These arguments are not “pure questions of law,” because they raise
questions of fact regarding whether the copying costs were actually between $0.03
and $0.07 per page and whether the FDOC bore any of the costs on its own. Smith
does not argue he had no opportunity to raise these issues in the district court; he
makes no argument the interest of substantial justice is at stake in these issues.
The resolution of these issues is not beyond any doubt, because their review would
require us to evaluate factual questions on matters for which the district judge did
not make specific findings. Access Now, 385 F.3d at 1334. Finally, it does not
appear, and Smith makes no argument, these arguments present significant
questions of general impact or great public concern, given Smith’s arguments are
couched in the narrow terms of whether the Secretary of the FDOC had no
individually incurred costs to be reimbursed and whether $0.05 to $0.07 was a
better estimate of the Florida Attorney General’s costs for copies and personal
time. Because Smith failed to first present them in district court, we decline to
review these arguments. Id. at 1331, 1335 (stating reviewing such arguments,
“without the benefit of any record or district court ruling, invites disaster for an
appellate court”).
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Smith’s remaining preserved argument regarding the propriety of the district
judge’s award of costs against an indigent plaintiff similarly fails. A district judge
may consider the non-prevailing party’s indigence. In those circumstances,
however, the judge (1) ordinarily should require substantial documentation of a
true inability to pay, and (2) may not altogether decline to award costs. Chapman,
229 F.3d at 1039. In Chapman, we ultimately reversed the grant of costs because
we could not discern from the district judge’s order whether the judge understood
he had discretion to consider the non-prevailing party’s indigent status. Id. at
1039-40 (noting we would assume district judges were aware of this discretion in
the future). Such an error is not present in Smith’s case, where the district judge
expressly considered Smith’s indigence and declined to reduce costs on that basis.
The judge did not abuse her discretion in awarding costs to the FDOC, despite
Smith’s indigence. Mathews, 480 F.3d at 1276.
D. Other Prisoners’ Motions to Intervene
Smith argues the district judge erred in denying the motion to intervene from
inmates Hartley, Rivera, and Schiller.
Litigants must establish their standing not only to bring claims,
but also to appeal judgments. Though similar and overlapping, the
doctrines of appellate standing and trial standing are not
identical. The primary limitation on a litigant’s appellate standing is
the adverseness requirement which is one of the rules of standing
particular to the appellate setting. Only a litigant who is aggrieved by
the judgment or order may appeal.
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Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353-54 (11th Cir. 2003) (citations, internal
quotation marks, and alteration omitted). Even where a party would have appellate
standing for the purposes of challenging some final rulings by the district judge,
the appellant may lack standing to appeal other rulings not affecting the appellant’s
interests. Id. at 1354. A party generally may not appeal to protect the rights of
others. Hawes v. Gleicher, 745 F.3d 1337, 1342 (11th Cir. 2014).
The denial of the motions to intervene from inmates Hartley, Rivera, and
Schiller implicated only their rights. Smith’s rights were not implicated; he may
not appeal to protect his fellow inmates’ rights. We dismiss Smith’s appeal as to
this claim of error, because he lacks standing to bring it; we therefore lack
jurisdiction to review it. Wolff, 351 F.3d 1353-54.
AFFIRMED IN PART AND DISMISSED IN PART.
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