Everett E. Osborne, Plaintiff-appellant, v. Chase Riveland, et al., Defendants-appellees, 1 F.3d 1247 (9th Cir. 1993)

MEMORANDUM^** 

Everett E. Osborne appeals pro se the district court's order denying his motion to review the Clerk's order taxing costs against him. We have jurisdiction under 28 U.S.C. § 1291. We review the district court's order taxing costs for an abuse of discretion, Alfex Corp. v. Underwriters Lab., Inc., 914 F.2d 175, 176 (9th Cir. 1990), cert. denied, 112 S. Ct. 61 (1991), and we affirm.

Osborne contends that, because his action was not frivolous, and because he is an indigent litigant proceeding in forma pauperis under 28 U.S.C. § 1915(a), the district court abused its discretion in taxing costs against him.¹  We disagree. A prevailing party is ordinarily entitled to recover costs as a matter of course, unless the court otherwise directs. Fed. R. Civ. P. 54(d). The explicit language of this rule makes an award of costs to the prevailing party automatic. Cf. Subscription Television, Inc. v. Southern Cal. Theatre Owners Ass'n, 576 F.2d 230, 234 (9th Cir. 1978) (finding an abuse of discretion when trial court failed to state reasons when it denied costs to the prevailing party). This is so even in the case of an indigent litigant who has been granted leave to proceed in forma pauperis. 28 U.S.C. § 1915(e); see Lay v. Anderson, 837 F.2d 231, 232 (5th Cir. 1988) (adopting the approach of the 4th and 11th Circuits and holding that the court's discretionary power to tax costs is not limited to frivolous lawsuits); Flint v. Haynes, 651 F.2d 970, 973-74 (4th Cir. 1981) (finding no reason to treat indigents differently from non-indigents, who are routinely forced to decide whether their claim is worth the risk), cert. denied, 454 U.S. 1151 (1982).

Because the award of costs is not limited to frivolous actions, see National Organization for Women v. Bank of California, Nat'l Ass'n, 680 F.2d 1291, 1294 (9th Cir. 1982), and may be awarded against indigent litigants proceeding in forma pauperis, see 28 U.S.C. 1915(e), we find that the district court properly exercised its discretion in denying Osborne's motion to review the Clerk's order taxing costs.

AFFIRMED.