514 F2d 283 Evans v. Tennessee Department of Corrections

514 F.2d 283

Vernon Douglas EVANS, Plaintiff-Appellant,
v.
TENNESSEE DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellees.

No. 74-2398.

United States Court of Appeals,
Sixth Circuit.

April 7, 1975.

David C. Howard, Memphis & Shelby County Legal Services Ass'n, G. Philip Arnold, Ratner, Sugarmon, Lucas & Salky, Memphis, Tenn., for plaintiff-appellant.

R. A. Ashley, Atty. Gen., Nashville, Tenn., for defendants-appellee.

Before PHILLIPS, Chief Judge, PECK and LIVELY, Circuit Judges.

PER CURIAM.

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1

This appeal presents the question of whether an unsuccessful plaintiff in a civil action who has been permitted to proceed in forma pauperis may be required to pay a filing fee to the clerk of the court and service fees to the marshal as costs. The plaintiff in this case filed pro se a civil rights complaint. He was permitted to proceed in forma pauperis and a legal services organization was appointed to represent him. Ultimately, the attorney representing plaintiff moved for voluntary dismissal of the action. The court granted the motion and entered judgment for all the defendants. Thereafter the court entered an order assessing costs against the plaintiff in the amount of $48.92, directing the payment of $15.00 filing fee to the clerk of the district court and $33.92 to the United States Marshal for serving summons. These costs had not been incurred by the prevailing defendants and no bill of costs had been filed by them. The plaintiff has appealed from this order. We reverse.

2

Proceedings in forma pauperis are controlled by 28 U.S.C. § 1915 which provides for costs as follows:

3

(e) Judgment may be rendered for costs at the conclusion of the suit or action as in other cases, but the United States shall not be liable for any of the costs thus incurred. If the United States has paid the cost of a stenographic transcript or printed record for the prevailing party, the same shall be taxed in favor of the United States.

4

Taxation of costs is provided for in 28 U.S.C. § 1920 which specifically allows fees of the clerk and marshal to be taxed as costs. It also provides that "A bill of costs shall be filed in the case . . . ." Costs are awarded to parties to an action, not to court officials. Rule 54(d), Fed.R.Civ.P., provides, in part, that

5

Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs . . . . (emphasis added).

6

A party who has paid a filing fee and fees for service of process in a civil case may include these items in his bill of costs. A court may refuse to permit an obviously frivolous action to be filed in forma pauperis. There is no statutory authority or provision in the federal rules, however, for permitting recovery of these items by the clerk and marshal from a plaintiff in a civil case who is proceeding in forma pauperis. See Bates v. United States District Court, No. 74-8224 (6th Cir. 1975).

7

The judgment of the district court is reversed.