Antoine Andre Miller-bey, Plaintiff-appellant, v. v. Siver, Defendant-appellee, 30 F.3d 134 (6th Cir. 1994)

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US Court of Appeals for the Sixth Circuit - 30 F.3d 134 (6th Cir. 1994) June 29, 1994

Before: JONES and RYAN, Circuit Judges, and BERTELSMAN, Chief District Judge.* 

ORDER

Antoine Andre Miller-Bey, a pro se Michigan prisoner, appeals a district court order granting the defendant's motion for costs filed pursuant to 28 U.S.C. § 1920 and Fed. R. Civ. P. 54(d). The 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).

Miller-Bey filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against a prison official alleging that she sexually assaulted him. The district court granted summary judgment to the defendant, and this court affirmed the judgment on appeal. Miller-Bey v. Siver, No. 93-2129, 1994 WL 70866, at * 1, 1994 U.S. LEXIS 3976, at * 2 (6th Cir. March 2, 1994) (order). Following the district court's judgment, defendant filed a motion for costs in the sum of $58. Miller-Bey did not oppose the motion. The request was referred to a magistrate judge who recommended that defendant's motion be granted. Miller-Bey did not file objections to the magistrate judge's report, and the district court granted the motion for the requested amount.

In his timely appeal, Miller-Bey argues that he is indigent and has no money to pay the costs. He requests oral argument.

The district court's decision to award costs to a prevailing party is reviewed under the abuse of discretion standard. See Weaver v. Toombs, 948 F.2d 1004, 1009-11 (6th Cir. 1991).

Upon review, we conclude that Miller-Bey's arguments are not reviewable because Miller-Bey did not oppose the request for costs in the district court. As such, he has waived his right to seek review of the judgment granting the motion. See Taft Broadcasting Co. v. United States, 929 F.2d 240, 243-45 (6th Cir. 1991); White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990). Further, Miller-Bey has waived appellate review of his claims due to his failure to file objections to the magistrate judge's report. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

Accordingly, we deny the request for oral argument and affirm the district court's order. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable William O. Bertelsman, Chief U.S. District Judge for the Eastern District of Kentucky, sitting by designation