Fa'dee Mulazim, Plaintiff-appellant, v. Terry Pitcher, Warden, et al., Defendants-appellees, 86 F.3d 1156 (6th Cir. 1996)

ORDER

This pro se Michigan state prisoner appeals a district court judgment taxing costs against him in the amount of $95.75. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking 20 million dollars in damages and injunctive relief, Fa'Dee Mulazim sued a number of Michigan Department of Corrections employees pursuant to 42 U.S.C. § 1983. The district court dismissed the suit against the defendants and, by a separate judgment, it granted the defendants' motion to tax costs against Mulazim. Mulazim noticed this appeal from the district court's judgment taxing costs against him.

In his timely appeal, Mulazim raises arguments not germane to the judgment taxing costs. Nonetheless, we have proceeded to review the order granting costs under the abuse of discretion standard. Weaver v. Toombs, 948 F.2d 1004, 1011 (6th Cir. 1991).

The district court did not abuse its discretion. The authority to assess reasonable costs under 28 U.S.C. § 1915(e) or § 1920 and Fed. R. App. P. 39(a) is within the sound discretion of the court, but is subject to a prompt challenge and showing by the prisoner/plaintiff that he is incapable of paying such costs. Id. at 1014. The district court ordered Mulazim to respond to the defendants' motion for costs. In that order, the court informed Mulazim that failure to file a response could result in a judgment in favor of the defendants. Mulazim did not comply with the court's order and did not respond to the defendants' motion for costs. Thus, Mulazim did not challenge the reasonableness of the costs, nor his ability to pay. See id. at 1014.

Accordingly, the district court's judgment awarding costs in favor of the defendants is affirmed pursuant to rule 9(b) (3), Rules of the Sixth Circuit.