                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0361n.06
                              Filed: May 23, 2006

                                             No. 04-1823


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

MICHELLE BAZZETTA, et al,

        Plaintiffs-Appellees,

v.                                                      ON APPEAL FROM THE UNITED
                                                        STATES DISTRICT COURT FOR THE
PATRICIA CARUSO, Director of the Michigan               EASTERN DISTRICT OF MICHIGAN
Department of Corrections, and MICHIGAN
DEPARTMENT OF CORRECTIONS,

        Defendants-Appellants.
                                                 /



BEFORE:         SUTTON and CLAY, Circuit Judges; OBERDORFER, District Judge.*

        PER CURIAM. The Court has received a tendered bill of costs submitted by appellants in

this closely litigated case. Appellees have responded to the request. Appellants request taxed costs

against appellees in the amount of $16,208.25, their docket fees and reproduction costs for the

instant appeal, pursuant to Federal Rule of Appellate Procedure 39.

        Rule 39 provides for costs taxed against the losing party on appeal. The rule reads, in

pertinent part: “[U]nless the law provides or the court orders otherwise . . . if a judgment is reversed,

costs are taxed against the appellee.” Fed. R. App. Proc. 39(a) (emphasis added). Therefore, by the

plain language of the rule, it is within our discretion to permit, permit in part, or deny costs as we


        *
      The Honorable Louis F. Oberdorfer, United States District Judge for the District of
Columbia, sitting by designation.
                                             No. 04-1823

judge is appropriate. See also Singleton v. Smith, 241 F.3d 534, 539 (6th Cir. 2001) (noting that the

language in Fed. R. Civ. Proc. 54(d) provides the district court with wide discretion in awarding

costs: “costs . . . shall be allowed as of course to the prevailing party unless the court otherwise

directs”); Weaver v. Toombs, 948 F.2d 1004, 1010 (6th Cir. 1991) (analogizing Fed. R. Civ. Proc.

54(d) to Fed. R. App. Proc. 39(a)); Tung Mung Dev. Co. v. United States, 354 F.3d 1371, 1382 (Fed.

Cir. 2004) (noting that Fed. R. App. Proc. 39 leaves the award of costs to the discretion of the court).

        This Circuit considers a number of factors when deciding whether to award taxed costs to

the prevailing party. These factors include the “losing party’s good faith, the difficulty of the case,

the winning party’s behavior, and the necessity of the costs.” Singleton, 241 F.3d at 539. In

addition, “another factor weighing in favor of denying costs is the indigency of the losing party,”

although indigency alone does not mandate a denial of costs. Id.

        None of the factors for our consideration counsel for an award of costs. The record of

litigation in this Court alone shows that the issues presented posed significant public policy concerns

and presented difficult and close legal issues to the courts. The prisoners and their visitors initially

prevailed in this Court but lost in the Supreme Court. The enforcement proceedings on remand

revolved around the district court’s interpretation of the Supreme Court opinion rendered in this

case. The litigation was taken in good faith, the case was difficult, and there is no necessity on the

part of the prevailing party, the Michigan prison system, for a cost award. Moreover, the plaintiffs

here are all prisoners and their visitors. The vast majority of these plaintiffs will possess few

resources with which to meet an award of costs. Finally, appellants propose to extract the award of

costs from the prisoner-plaintiffs’ prisoner accounts. The appellants do not communicate to the



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Court how costs would be assessed against the non-prisoners plaintiffs (both prisoners and their

visitors sued) or distributed amongst the differing groups of plaintiffs.

       After weighing the various considerations raised by appellants’ tendered bill of costs, we

choose to exercise our discretion by DENYING costs to appellants for this appeal.

       IT IS SO ORDERED.




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