16 F.3d 1218
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Robert Lee BOLES, Jr., Plaintiff-Appellant,
v.
Jean KARRER; Robert Lecureux, Defendants-Appellees.
No. 93-1880.
United States Court of Appeals, Sixth Circuit.
Feb. 3, 1994.
Before: BOGGS and SILER, Circuit Judges, and CHURCHILL, Senior District Judge.*
ORDER
The defendants-appellees move the court for costs pursuant to 28 U.S.C. Sec. 1920 and Sixth Circuit Rule 26 in the amount of $819.00 against plaintiff who was allowed to proceed on appeal in forma pauperis under 28 U.S.C. Sec. 1915(a). On December 9, 1993, we affirmed the district court's judgment dismissing plaintiff's civil rights complaint filed against the defendant Michigan state prison officials under 42 U.S.C. Sec. 1983.
The court decided in Weaver v. Toombs, 948 F.2d 1004 (6th Cir.1991), that costs may be imposed against a plaintiff who was allowed to proceed in forma pauperis whether or not his lawsuit is deemed frivolous or simply without merit. Id. at 1008 and 1014. The imposition of costs would be subject to a prompt challenge by the plaintiff to prove incapacity to pay the costs. Id. at 1014. It would be the plaintiff's burden to prove incapacity to pay and such a challenge would be remanded to the district court to consider in the first instance. Id.
Upon consideration, we hereby grant appellees' motion for costs, but do so in the amount of $393.75. We disallow requested costs for pages 91 through 136 and pages 166 through 362 of the Joint Appendix as such materials were not necessary to be included therein, pursuant to Sixth Circuit Rule 11(a) and (1). Because plaintiff challenges the costs due to his inability to pay, this issue is hereby remanded to the district court to consider any possible relief from the award of costs in the first instance.
The Honorable James P. Churchill, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation