Stanley Boswell, Plaintiff-appellant, v. Ray Toombs; Beverly Williams; Dana Hartman, Defendants-appellees, 960 F.2d 149 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 960 F.2d 149 (6th Cir. 1992) April 13, 1992

Before MERRITT, Chief Judge; RYAN, Circuit Judge, and FORESTER, District Judge.* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the request for appointment of counsel contained in Boswell's brief, the record and briefs of the parties, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Summary judgment was entered for the defendants as to the merits in Boswell's 42 U.S.C. § 1983 civil rights action. This court affirmed that decision.

The defendants filed a motion for costs as provided by Fed. R. Civ. P. 54(d), 28 U.S.C. §§ 1920 and 1923 in the amount of $107.75. Boswell responded. The district court considered the reasonableness of the costs and the plaintiff's ability to pay costs. It entered an order taxing costs as requested by defendants and gave directions for a payment schedule of the costs. Boswell appealed.

On appeal, Boswell argues that all fees and costs were waived and that he is unable to pay the costs.

The assessment of reasonable costs against an in forma pauperis plaintiff is within the sound discretion of the district court. Weaver v. Toombs, 948 F.2d 1004, 1008 (6th Cir. 1991). The district court considered the reasonableness of costs and the ability of the plaintiff to pay costs and set forth its findings in the order taxing costs. The burden is upon the plaintiff to make a showing that he is incapable, as a practical matter and as a matter of equity, to pay costs of a defendant. Weaver v. Toombs, 948 F.2d at 1013-14. Although plaintiff's response included an affidavit of financial status, the district court addressed the issues of reasonableness of costs and ability to pay as required by Weaver. It does not appear that the district court abused its discretion in taxing costs against Boswell.

Accordingly, it is ORDERED that request for appointment of counsel be denied and the order of the district court taxing costs be, and it hereby is, affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable Karl S. Forester, U.S. District Judge for the Eastern District of Kentucky, sitting by designation