Parnell Seaton-el, Plaintiff-appellant, v. Judy Cotton; Kim Wittman; Howard Schweikert, Defendants-appellees, 989 F.2d 500 (6th Cir. 1993)

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U.S. Court of Appeals for the Sixth Circuit - 989 F.2d 500 (6th Cir. 1993) March 15, 1993

Before MERRITT, Chief Judge, and NATHANIEL R. JONES and DAVID A. NELSON, Circuit Judges.


ORDER

Parnell Seaton-El, pro se, appeals from a district court order granting the defendants' motion to tax costs in the amount of $25. 28 U.S.C. § 1920; Fed. R. Civ. P. 54(d). 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).

In his complaint filed pursuant to 42 U.S.C. § 1983, Seaton-El had alleged that the defendants, employees at the Michigan Department of Corrections at the State Prison of Southern Michigan in Jackson, had denied him his right to due process by withholding certain information from him prior to his disciplinary hearing for a major misconduct violation. After dismissing the case, the district court granted the defendants' motion to recover their costs. On appeal, Seaton-El argues that, because he is claiming indigence, the district court erred in failing to first determine whether the requested costs, representing attorney's fees and a fee for disposition of the case on motion for judgment, are reasonable and within his ability to pay. In support of his argument, Seaton-El points to Sales v. Marshall, 873 F.2d 115, 122 (6th Cir. 1989), and the case of In re Ruben, 825 F.2d 977, 987 (6th Cir. 1987), cert. denied, 485 U.S. 934 (1988).

This court decided in Weaver v. Toombs, 948 F.2d 1004 (6th Cir. 1991), that costs may be imposed against a plaintiff who is allowed to proceed in forma pauperis whether or not his lawsuit is deemed frivolous or simply without merit. Id. at 1008 and 1014. The burden is on the prisoner-plaintiff to make a prompt challenge and showing in order to gain relief, or partial relief from such an assessment on the basis of inability to pay the costs. Id. at 1014.

In this case, Seaton-El did not object or respond to the defendants' motion to tax costs in district court and did not raise the issue of indigency and inability to pay the costs until his appeal to this court. Therefore, this court will not consider this argument for the first time on appeal. Taft Broadcasting Co. v. United States, 929 F.2d 240, 243-45 (6th Cir. 1991).

Accordingly, the district court's order imposing costs is hereby affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.