68 F3d 474 Favors v. Bell Rum

68 F.3d 474

Gene T. FAVORS, Plaintiff-Appellant,
v.
BELL, R.U.M.; et al., Defendants-Appellees.

No. 94-2435.

United States Court of Appeals, Sixth Circuit.

Oct. 13, 1995.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

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

ORDER

2

Gene T. Favors appeals a district court order imposing costs against him in the amount of $106.25 entered following the dismissal of his prisoner civil rights action filed under 42 U.S.C. Sec. 1983 for failure to state a claim upon which relief can be granted. 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).

3

Plaintiff filed his complaint in the district court alleging that he experienced difficulties with legal mail delivery at the Ionia, Michigan, Maximum Correctional Facility. Defendants moved to dismiss the complaint or for summary judgment, and plaintiff responded in opposition. The magistrate judge recommended that the complaint be dismissed, and plaintiff filed objections. The district court adopted the magistrate judge's recommendation and dismissed the complaint. Plaintiff filed a timely notice of appeal taken from the district court's judgment docketed in this court as Case No. 94-2359.

4

Thereafter, defendants moved the district court to impose costs against plaintiff, and the magistrate judge ordered plaintiff to provide current financial information. Plaintiff responded in opposition to defendants' motion and provided the information as ordered. The district court awarded the $106.25 costs requested but limited collection of the costs to twenty-five percent of the monthly deposits into plaintiff's prison account. After a timely Fed.R.Civ.P. 59 motion was denied by the district court, plaintiff filed a timely notice of appeal taken from the district court's order docketed in this court as Case No. 94-2435.

5

Plaintiff's appeal taken from the district court's underlying judgment in this case was dismissed for failure to prosecute after this court denied plaintiff leave to proceed in forma pauperis on appeal and plaintiff failed to pay the filing fee. See Favors v. Bell, No. 94-2359 (6th Cir. June 21, 1995). In his brief on appeal, plaintiff continues to argue the merits of his underlying civil rights action. Defendants assert that the district court did not abuse its discretion in awarding costs. Upon consideration, the district court's order imposing costs is affirmed.

6

First, plaintiff has abandoned on appeal any cognizable challenge to the district court's award of costs. Generally, issues which were raised in the district court but not raised on appeal are considered abandoned on appeal and are not reviewable. Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.1991), cert. denied, 503 U.S. 939 (1992). Although plaintiff asserted in the district court that he is unable to pay an award of costs and that defendants' costs are excessive, plaintiff has not asserted these claims in his brief on appeal. Rather, plaintiff asserts only claims related to the propriety of the district court's underlying judgment. However, the underlying judgment is not before this court on appeal. As noted, plaintiff's appeal taken from that case was dismissed for want of prosecution. Under these circumstances, none of the claims asserted by plaintiff on appeal are properly before the court. Moreover, the district court did not abuse its discretion in awarding costs under the circumstances of this case in any event. See Weaver v. Toombs, 948 F.2d 1004, 1008-14 (6th Cir.1991).

7

Accordingly, the judgment of the district court is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.

*

The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by designation