Unpublished Dispositioncharles E. Hawkins, Plaintiff-appellant, v. Bechtel Power Corporation, Michael E. Martello, and David E.shanteau, Defendants-appellees, 762 F.2d 1007 (6th Cir. 1985)

Hawkins appeals pro se from the district court's grant of summary judgment in favor of the defendants in this civil rights case involving taxes. Currently pending before the Court are a motion by Hawkins to proceed in forma pauperis and two motions by the defendants to dismiss the appeal. Because Hawkins has already paid the filing fee, the motion to proceed in forma pauperis is denied as unnecessary. The defendants' motion to dismiss the appeal as frivolus is in effect a motion to affirm which is not allowed by the rules of this Court. Rule 8(a), Rules of the Sixth Circuit. It is, therefore, denied. The moti n to dismiss for failure to file a bond on appeal is rendered moot by our disposition of this case.

This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Hawkins alleges that the defendants violated his civil rights when they continued to withhold taxes from his paycheck in accordance with instructions from the IRS. The district court was correct to grant summary judgment to the defendants on this claim because Bechtel clearly was not engaged in state action and committed no due process violation when it followed the instructions of the IRS. Stonecipher v. Bray, 653 F.2d 398, 403 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982). Even assuming Hawkins could state a claim, his arguments are without merit. 26 U.S.C. § 3401(c) was clearly intended to define employee in its normal meaning as well as to include in the definition government employees. So it was proper for Bechtel to withhold taxes from Hawkins' salary.

The district court also granted an award of $1,100 as attorneys' fees to the defendants because the case was frivolous. We affirm this decision of the district court. The defendants also request attorneys' fees on appeal. However, Hawkins is now unemployed and has filed for bankruptcy. Therefore, we decline to award costs and attorneys' fees on appeal.

The judgment of the district court is affirmed under Rule 9(d) (2), Rules of the Sixth Circuit, because the appeal is frivolous.