Unpublished Dispositionclarence Bogan, Iii, Plaintiff-appellant, v. Officer Honeycutt, Defendant-appellant, 884 F.2d 1392 (6th Cir. 1989)

Before DAVID A. NELSON and RYAN, Circuit Judges, and RONALD E. MEREDITH, District Judge.^* 

ORDER

The State of Ohio appeals the district court's judgment denying its motion for court costs filed under Fed. R. Civ. P. 59(d). The appeal has been referred to a panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record and briefs, the panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

The district court denied the State of Ohio's motion for costs incurred in transporting the prisoner litigant Bogan and his inmate witnesses to a jury trial in a civil action filed by Bogan under 42 U.S.C. § 1983. The State prevailed in the Sec. 1983 action.

Upon consideration, we conclude the district court properly denied the State costs for transporting Bogan to trial. Expenses incurred in transporting a prisoner-litigant to his civil trial may not be taxed as costs against the prisoner-litigant. See Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989).

As for the costs of transporting the non-party prisoner witnesses to Bogan's trial, the judgment denying these costs must be vacated and the case remanded for further review as such costs are allowed to the prevailing party under Sec. 1920. See Sales, 873 F.2d at 122. However, because Bogan is proceeding as an indigent under 28 U.S.C. § 1915(d), the district court must first determine that Bogan has the capacity to pay these costs before assessing them against him, id. at 120, and make findings of fact pertinent thereto to facilitate a fully informed review. Cf. Webster v. Sowders, 846 F.2d 1032, 1038 (6th Cir. 1988); In re Ruben, 825 F.2d 977, 990-91 (6th Cir. 1987), cert. denied, 108 S. Ct. 1108 (1988).

Accordingly, to the extent the court denied the State costs covering Bogan's transportation expenses, the judgment is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit. To the extent, it denied the State costs covering the transportation of the non-party witnesses, the judgment is vacated and the case remanded for further consideration consistent with this opinion. Rule 9(b) (6), Rules of the Sixth Circuit.