Murray v. Michigan Department of Corrections

ORDER

Stoney Murray appeals a district court judgment taxing costs against him in this civil rights action filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

Murray filed his complaint in the district court alleging that he was assaulted, tortured, and otherwise subjected to inhumane treatment by prison officials during his incarceration at the Egeler Correctional Facility. The named defendant Michigan prison officials moved to dismiss the complaint or for summary judgment, and plaintiffs responses in opposition were stricken for failure to comport with court rules. The magistrate judge recommended that defendants’ motions be granted, and plaintiff filed objections. The district court adopted the magistrate judge’s recommendation and entered judgment accordingly.

Next, defendants filed a motion in the district court to tax costs against plaintiff in the amount of $50.90. Plaintiff then filed an untimely notice of appeal taken from the district court’s underlying judgment, and a response in opposition to defendants’ motion to tax costs. The magistrate judge recommended that the motion to tax costs be granted. Plaintiff failed to file objections to the magistrate judge’s report and recommendation, and the district court adopted the magistrate judge’s recommendation and granted defendants’ motion. Plaintiff filed a timely notice of appeal taken from the award of costs. Subsequently, this court dismissed plaintiffs appeal taken from the underlying judgment for lack of appellate jurisdiction. Murray v. Mich. Dep’t of Corr., No. 02-1818 (6th Cir. Oct. 22, 2002) (unpublished).

On appeal, plaintiff addresses the propriety of the underlying district court judgment, and contends that the imposition of costs while his initial appeal was pending was premature. Defendants respond that plaintiff waived his right to appeal the imposition of costs because he did not object to the magistrate judge’s report and recommendation, and that the imposition of costs was proper in any event. Upon consideration we affirm the judgment because plaintiff waived his right to appeal the judgment imposing costs.

This court reviews a district court’s award of costs only for an abuse of discretion. Singleton v. Smith, 241 F.3d 534, 538 (6th Cir.2001). However, a party’s failure to file objections to a magistrate judge’s report and recommendation constitutes a waiver of the right to appeal issues decided therein. United States v. Real Prop. Located at 1184 Drycreek Rd., Granville, Ohio, 43023, 174 F.3d 720, 725 (6th Cir.1999). Here, plaintiff waived his right to appellate review by his failure to file objections to the magistrate judge’s report and recommendation. Finally, it is noted that the merits of the district court’s underlying judgment in this case are not before this court because plaintiffs appeal from the judgment was dismissed for lack of appellate jurisdiction.

For the foregoing reasons, the district court’s judgment imposing costs is affirmed. See Rule 34(j)(2)(C), Rules of the Sixth Circuit.