### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk June 25, 1998

TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT
RE: 97-6274, Bewley v. City of Duncan 97-6321, Bewley v. City of Duncan Originally filed on June 4, 1998
The unpublished order and judgment originally filedon June 4, 1998, contains two typographical errors: 1. On page two of the slip opinion the footnote sho uld have been identified using an asterisk “*” instead of the number one. 2. On page five of the slip opinion, in footnote nu mber one, the first clause before the first dash should read “Plaintiff also r aises two additional issues -”. A copy of the corrected order and judgment is attached for y our convenience. Very truly yours, Patrick Fisher, Clerk

Keith Nelson Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 4 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BILLY V. BEWLEY,

Plaintiff-Appellant,

v. CITY OF DUNCAN, a Municipal Corporation; DALE ANDERSON, Chief of Police, individually and as employee of the City of Duncan; GLEN HARRIS, individually and as employee of the City of Duncan; CHRIS RAY, individually and as employee of the City of Duncan; RICHARD HODGES, individually and as employee of the City of Duncan; HERBERT JENNINGS, individually and as employee of the City of Duncan; ANDREW J. LAPINE, JR., an individual acting in conspiracy with those acting under color of law, Defendants-Appellees.

BILLY V. BEWLEY,

Plaintiff-Appellant,

v. CITY OF DUNCAN, a Municipal Corporation; DALE ANDERSON, Chief of Police, individually and as employee of the City of Duncan; No. 97-6274 (D.C. No. 95-CV-1357) (W.D. Okla.)

No. 97-6321 (D.C. No. 95-CV-1357-T) (W.D. Okla.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- GLEN HARRIS, individually and as employee of the City of Duncan; CHRIS RAY, individually and as employee of the City of Duncan; RICHARD HODGES, individually and as employee of the City of Duncan; HERBERT JENNINGS, individually and as employee of the City of Duncan; ANDREW J. LAPINE, JR., an individual acting in conspiracy with those acting under color of law, Defendants-Appellees.

ORDER AND JUDGMENT *

Before PORFILIO, BARRETT, andHENRY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. These cases are therefore ordered submitted without oral argument.-3-

In appeal No. 97-6274, plaintiff Billy Bewley, proc eeding pro se, appeals the district court’s orders granting dismissal and summary judgment to defendants on his amended complaint alleging causes of action under 42 U.S.C. § 1983, and certain state law claims. In appeal No. 97-6321, p laintiff appeals the district court’s award of costs to defendants. We have juri sdiction pursuant to 28 U.S.C. § 1291, and following a thorough review of the reco rd, we affirm.
I. Background This case arises out of two incidents during which plaintiff contends he was the victim of conduct by defendants in violation of his civil rights. On April 30, 1994, plaintiff’s Doberman Pinscher dog died as a r esult of being shot with a tranquilizer dart by City of Duncan animal control officer, defendant Glenn Harris. The incident started with a telephone call to 911 by plaintiff’s neighbor, defendant Andrew J. Lapine, Jr., reporting that pla intiff’s dog was loose in the neighborhood and menacing people attending a nearbyauction. Defendants Chris Ray and Richard Hodges, City of Duncan police offic ers, responded and, according to their reports, found that plaintiff’s dog was agitated and pacing a fence in plaintiff’s yard. The officers reported t hat the fence could not contain the dog and it went back and forth into plaintiff’s yard at will. The officers then requested that animal control be dispatched to the location.-4-

After several unsuccessful attempts on the part of the police dispatcher to locate plaintiff, Officers Ray and Hodges, and Anim al Control Officer Harris, assisted by Officers Jerry Wilson and Bart Riley, tried, without success, to catch the dog in a pole noose. During this time, the dog charged the officers showing its teeth. After pursuing the animal through the n eighborhood, the dog finally returned to plaintiff’s yard. The officers then di rected Harris to shoot the dog with a tranquilizer gun. Following the shot, the d og went into the house through a broken door. Because a dog hit with this tranqui lizer must receive veterinary attention quickly, the police officers authorized H arris to enter plaintiff’s residence to retrieve the dog once they were sure t hat the shot had taken effect. Harris, accompanied by Sgt. Hodges, then entered th e back of plaintiff’s house into a room described by Sgt. Hodges as “a dog room ” littered with animal waste, food, and trash. Harris removed the animal and tra nsported it to a veterinarian, where despite treatment, unfortunately, it died. T he police officers cited plaintiff for allowing an animal to run at large. He was adj udged guilty in municipal
court. The second incident involves a traffic citation iss ued to plaintiff by City of Duncan police officer, defendant Herbert Jenning s, for failure to come to a complete stop at a stop sign. Following a protes t of the citation, plaintiff was1 Plaintiff also raises two additional issues - that the district court (continued...) -5- acquitted in municipal court. Plaintiff appears to claim that these incidents were in furtherance of a city wide conspiracy to harass him and his family.

II. No. 97-6274 Plaintiff brought this § 1983 civil rights action a lleging that defendants’ conduct during the dog incident and the traffic inc ident was in violation of his constitutional rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendments. The district court granted defendant Lapine’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) and granted summary judgment to the remaining defendants. Plaintiff identifies eleven issues on appeal. Beca use many of his issues are overlapping and repetitive, we combine them as foll ows: (1) the district court erred in dismissing defendant Lapine; (2) the courterred in granting summary judgment to the City of Duncan, Police Chief Dale A nderson and Police Office Herbert Jennings on plaintiff’s § 1983 civil rights claims; (3) the court erred in granting summary judgment to the remaining defendants on plaintiff’s § 1983 civil rights claims; (4) the district court erred i n granting summary judgment to defendants on plaintiff’s § 1983 conspiracy claim; and (5) the district court erredin denying plaintiff’s motion to recuse. 11 (...continued)

erroneously allowed defendants extended time for di scovery and erroneously denied his motion for appointment of counsel - whic h were not argued in his brief. Because perfunctory complaints which fail t o frame or develop an issue are insufficient to invoke our review, we consider the issues waived. See Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994). -6- A. Dismissal of Mr. Lapine Plaintiff contends that the district court erred in dismissing his claims against Mr. Lapine under Fed. R. Civ. P. 12(b)(6) f or failure to state a claim upon which relief may be granted. We review a dismissal under Rule 12(b)(6) de novo.
See Yoder v. Honeywell Inc. , 104 F.3d 1215, 1224 (10th Cir.), cert. denied , 118 S. Ct. 55 (1997). We will uphold the dismissal “wh en it appears that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief, accepting the well-pleaded allegations of the compl aint as true and construing them in the light most favorable to the plaintiff.” Id. (further quotation omitted). As a pro se litigant, we construe plaintiff’s compl aint liberally. See Haines v.
Kerner , 404 U.S. 519, 520 (1972). Here, the district court granted Mr. Lapine’s motio n to dismiss based on its conclusion that Mr. Lapine was not a state actor. Moreover, the court determined that plaintiff failed to set forth specific factual allegations that state a cause of action against Mr. Lapine as a private person consp iring with a person acting-7-

under color of state law for the purpose of deprivi ng plaintiff of his constitutional rights. We agree. A civil rights plaintiff proceeding under § 1983 mu st allege and prove that “(a) some person has deprived him of a federally pr otected right, and (b) the person who has deprived him of that right acted und er color of state law.” Houston v. Reich , 932 F.2d 883, 890 (10th Cir. 1991). Unless a complaint alleges both elements, it does not state a claim under § 19 83. “In order to hold a private individual liable under § 1983 for a constitutional violation requiring state action, a plaintiff must show . . . that the individual’s c onduct is ‘fairly attributable to the State.’” Pino v. Higgs , 75 F.3d 1461, 1465 (10th Cir. 1996) (quoting Lugar v. Edmondson Oil Co. , 457 U.S. 922, 937 (1982)). Under Lugar , [f]irst, the deprivation must be caused by the exer cise of some right or privilege created by the State or by a rule of c onduct imposed by the state or by a person for whom the State is resp onsible. . . . Second, the party charged with the deprivation mustbe a person who may fairly be said to be a state actor. This may b e because he is a state official, because he had acted together with or has obtained significant aid from state officials, or because hi s conduct is otherwise chargeable to the State.
457 U.S. at 937. Here, Mr. Lapine’s only involvement in the incident s in question was his telephone call to the authorities to report that pl aintiff’s dog was loose and menacing persons in the neighborhood. Although pla intiff’s argument in his brief is less than clear, it appears that he alleged thatMr. Lapine should be considered-8-

as acting under color of state law because Mr. Lapi ne had, in the past, made other complaints to the police regarding plaintiff. In P ino , we rejected a similar argument, holding that defendant’s “conduct does no t rise to the level of state action simply because [police officers] responded t o her call to the dispatcher.” 75 F.3d at 1465. Accordingly, we conclude that Mr. Lapine’s actions did not constitute state action simply because the officers responded to his call, or for that matter, had in the past responded to his calls

. Moreover, as the district court found, plaintiff di d not plead sufficient facts to support his claim that Mr. Lapine acted in consp iracy with the police officers.
See Dennis v. Sparks , 449 U.S. 24, 27-28 (1980) (cause of action under § 1983 may be maintained against a private person where itis shown that private person conspired with person acting under color of state l aw to violate constitutional rights); Thompson v. City of Lawrence , 58 F.3d 1511, 1517 (10th Cir. 1995) (holding that a plaintiff must allege sufficient fa cts to show both a conspiracy and a deprivation of constitutional rights). Even cons truing plaintiff’s assertions liberally, his allegations of conspiratorial conduc t as to Mr. Lapine are conclusory at best. See Durre v. Dempsey , 869 F.2d 543, 545 (10th Cir. 1989) (“Conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim.”). Therefore, the district court’s dismissal of the cl aims against Mr. Lapine was appropriate.-9- B. Grant of Summary Judgment to Harris, Ray, and Hodges We review the grant of summary judgment de novo app lying the same standard as that applied by the district court. Se e Buchanan v. Sherrill , 51 F.3d 227, 229 (10th Cir. 1995). Summary judgment is app ropriate if the moving party demonstrates that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if the part ies have presented sufficient evidence from which a trier of fact could resolve t he issue either way. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). If the party bearing the burden of persuasion at trial fails to come forward with sufficient evidence on an essential element of his prima facie case, al l issues concerning all other elements of the claim become immaterial. See Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). The movant bears the burden of establishing the abs ence of dispute as to a material fact. See id. at 323. The movant can accomplish this by pointin g out to the court a lack of evidence as to an essential element of the nonmovant’s claim. The burden then shifts to the nonmovant to present specific facts, admissible at trial, from which a rational trier of fact could find for the
nonmovant. See Fed. R. Civ. P. 56(c); Celotex , 477 U.S. at 324. This can be accomplished by reference to pleadings, affidavits, discovery responses,-10-

transcripts, or other specific exhibits. See Fed. R. Civ. P. 56(c); Thomas v. Wichita Coca-Cola Bottling Co. , 968 F.2d 1022, 1024 (10th Cir. 1992). We conduct our de novo review from the same perspec tive available to the district court at the time it entered its decision, limiting our review to those materials the parties presented to the district court. Therefore , although “[w]e view the evidence and draw any inferences in a light most favorable to the party opposing summary judgment, . . . that party must identify su fficient evidence which would require submission of the case to a jury.” Aramburu v. Boeing Co. , 112 F.3d 1398, 1402 (10th Cir. 1997). Plaintiff challenges the district court’s grant of summary judgment to the defendants who actually took part in the incidents. The court granted defendants summary judgment on plaintiff’s allegations of Firs t, Sixth, Ninth, and Tenth Amendment violations, noting that during his deposi tion, plaintiff was unable to identify the factual basis for his claims that defe ndants violated the numerous constitutional amendments he cited, and had provide d no evidence to support these claims. On plaintiff’s Fourth Amendment claim that defendants entered his home without a warrant and shot his dog, the court concl uded that plaintiff had not provided sufficient evidence to support this claim. In determining that plaintiff failed to establish a disputed material fact, the d istrict court thoroughly-11-

summarized the affidavits and police reports submitted by the defendants. The court then concluded that plaintiff had established no disputed issue of material fact challenging defendants’ claim that exigent cir cumstances existed at the time the officers entered plaintiff’s house. Plaintiff appears to base his assertion of error entirely on his contention that the district court failed to consider an affid avit of Jessie McAlister, plaintiff’s neighbor. Although in his argument, pl aintiff provides his own translation of Mr. McAlister’s affidavit, our readi ng of the document does not reveal any fact which would materially dispute the facts contained in the affidavits and reports of the defendants. Accordin g to the factual accounts of Mr. Lapine, the police officers, and Animal Control Off icer Harris, after a concerted effort to capture the dog, the dog was shot with a tranquilizer dart gun after which it went into a room at the back of the house throug h the bottom of a door. Officer Harris and Sgt. Hodges then entered the back of the house and retrieved the dog. According to Mr. McAlister’s affidavit, “the animal control officer and another police officer” entered the house through a back do or after which he “heard what sounded like a shot.” R. Vol. II, Doc. 154, McAlis ter Affidavit at 2. Thus, it appears that Mr. McAlister believes that the dog wa s shot inside the house, while the officers aver that the dog was shot outside andthen entered the house. While we acknowledge this factual dispute, we fail to dis cern its materiality to the-12-

claim. Whether the dog was shot inside or outside is immaterial to the question of whether exigent circumstances existed which perm itted the officers to enter plaintiff’s house without a warrant. “Normally, a search is considered reasonable under the Fourth Amendment only if it is supported by a warrant issued on prob able cause[.]” Saavedra v. City of Albuquerque , 73 F.3d 1525, 1531 (10th Cir. 1996). “It is a matter of law that a warrantless entry for some limited purposes is perm issible if police officers have probable cause to search the residence and exigent circumstances are present.” United States v. Chavez , 812 F.2d 1295, 1298 (10th Cir. 1987). In assessi ng whether exigent circumstances exist, “we are guidedby the realities of the situation presented by the record.” United States v. Cuaron , 700 F.2d 582, 586 (10th Cir. 1983) (further quotation omitted). All versions of the facts support the conclusion th at the officers’ actions were for the purpose of protecting themselves and the public. Plaintiff’s dog had been loose in the neighborhood and menacing, no t only the officers, but passers-by as well. Officer Chris Ray stated in hi s affidavit that on his way to plaintiff’s residence to answer the call regarding a loose dog, he was stopped by a woman who advised him that a black dog had “charg ed her and her husband while they were walking down the street.” R. Vol. 11, Doc. 141, Affidavit of Chris Ray. Doug Johnson, an attendee at the auctio n across the street from-13-

plaintiff’s residence, stated that he observed a Do berman Pinscher running “through the crowd” and confronting people before b eing chased from the area by Duncan police officers. Id. Affidavit of Doug Johnson. Mr. Lapine, in his account of the dog’s encounter with a couple at a n earby intersection, stated that he “observed the dog was running at large, and lung ed at the woman, being very aggressive, and then growled and beared his teeth at the man, at which time the man attempted to frighten the dog away.” Id. Affidavit of Andrew Lapine. The officers involved all reported that the dog was behaving aggressively. Therefore, even if we accept Mr. McAlister’s versio n of the events, the officers would have had a constitutionally permissible basis for entering plaintiff’s home and tranquilizing the dog. The discrepancies betwe en Mr. McAlister’s version of the events in his affidavit and the version of the events described in the affidavits submitted by defendants do not constitute a dispute d issue of material fact as to whether exigent circumstances existed which would s upport the officer’s warrantless entry into plaintiff’s home for the purpose of removing the dog. Summary judgment on this issue was appropriate.

C. 42 U.S.C. § 1983 Conspiracy Claim Plaintiff asserted that both incidents were part of a conspiracy of the defendants to violate his constitutional rights. I n order to prevail on a § 1983 conspiracy claim, plaintiff “must prove both the ex istence of a conspiracy and the2 Pursuant to the applicable two-year statute of limi tations, in this same

order, the district court granted summary judgment to all defendants on plaintiff’s claims based on incidents that had occurred more th an two years prior to filing of the action. See R. Vol. II, Doc. 125 at 2. In addition, the courtgranted defendants summary judgment on claims which were barred as a result of releases signed by plaintiff in settlement of a number of pr ior lawsuits involving certain of the same defendants. See id. at 2-3. Although plaintiff makes reference to allegations of many of these prior incidents in his arguments on appeal, he does not challenge the district court’s grant of summaryjudgment on these claims. At plaintiff’s request, his state common law claims su bject to the Governmental Tort Claims Act were stricken from his complaint. See id. at 3. -14- deprivation of a constitutional right.” Thompson , 58 F.3d at 1517. Having determined that plaintiff failed to establish a con stitutional violation, the conspiracy claim fails. See id.
D. Grant of Summary Judgment to City of Duncan, Anderson, andJennings In a separate order, the district court granted sum mary judgment to the City of Duncan and defendants Jennings and Anderson. 2 The court held that plaintiff failed to adequately allege facts or offer evidence to support his claim that the police officers violated his constitutional rights in accord with a policy of the municipality. In a § 1983 action, the City of Duncan may be held liable only for its own unconstitutional policies and not for the tortuous or unconstitutional actions of its employees. See Monell v. Department of Soc. Servs. , 436 U.S. 658, 694 (1978). Here, the City may not be held liable under this th eory absent an underlying-15-

constitutional violation by its officers. See Thompson , 58 F.3d at 1517. Therefore, because plaintiff failed to establish a constitutional deprivation, his claim against the City fails. The district court granted summary judgment to Offi cer Jennings and Police Chief Anderson on plaintiff’s claim that the defend ants participating in the death of his dog violated his constitutional rights. We have held that “[i]ndividual liability under § 1983 must be based on personal in volvement in the alleged constitutional violation.” Foote v. Spiegel , 118 F.3d 1416, 1423 (10th Cir. 1997). Plaintiff does not claim that either defendant was present when the alleged constitutional violation occurred, but presumably i ncluded the two officers solely because of their supervisory role. A supervisor cannot be held liable under § 1983 on a respondeat superior theory. See Brown v. Reardon , 770 F.2d 896, 901 (10th Cir. 1985). Plaintiff’s claims against the o fficers in their supervisory capacities is the same as his claims against the Ci ty. See Thompson , 58 F.3d at 1517. Therefore, once again plaintiff’s failure to show an underlying constitutional deprivation defeats his claims again st the two officers, and summary judgment was appropriate. Next, the district court granted summary judgment o n plaintiff’s claim that Officer Jennings violated his constitutional rights during a traffic stop and resulting citation for failure to come to a complet e stop at a stop sign. The court-16-

construed plaintiff’s claim as asserting that, beca use plaintiff was acquitted of the violation, the charge was concocted and for the purpose of harassing plaintiff. The court found that, although plaintiff claimed Of ficer Jennings was “rude and raised his voice,” he failed to establish that issu ance of the citation was an abuse of Jennings’ authority, or in violation of plaintif f’s due process rights. R. Vol. II, Doc. 125 at 4-5. On appeal, plaintiff asserts that“Officer Jennings, had followed, stopped, detained, (arrested) Appellant and his spo use, upon numerous occassions (sic).” Appellant’s Opening Br. at 19. He fails, however, to point this court to any error in the district court’s findings or concl usions on this issue. Because we are not obligated to manufacture plaintiff’s argume nt on appeal when he has failed to draw our attention to the error asserted, we consider the issue waived.
See Hernandez v. Starbuck , 69 F.3d 1089, 1093 (10th Cir. 1995); see also United States v. Rodriquez-Aguirre , 108 F.3d 1228, 1238 n.8 (10th Cir.) (holding that appellant bears the burden of tying the relevant fa cts, supported by specific citations to the record, to his legal contentions), cert denied , 118 S. Ct. 132 (1997).

E. Motion to Recuse Plaintiff also challenges the district court’s deni al of his motion to recuse. We review “the denial of a motion to recuse only fo r abuse of discretion.” Weatherhead v. Globe Int’l, Inc. , 832 F.2d 1226, 1227 (10th Cir. 1987). Plaintiff-17-

argues that the district court ignored his evidence . It is clear from the record, however, that the district court did not ignore pla intiff’s evidence, but instead found it insufficient or immaterial. Plaintiff’s o nly appellate argument on this issue appears to be his dissatisfaction with the de cisions of the court which does not constitute grounds for recusal. See Liteky v. United States , 510 U.S. 540, 555 (1994) (holding judicial rulings alone almost neverconstitute grounds for recusal). We therefore conclude that the district court’s denial of plaintiff’s motion to recuse was not an abuse of its discretion

III. No. 97-6321 Plaintiff appeals the district court’s award of cos ts to defendants as prevailing parties. On August 4, 1997, pursuant to Fed. R. Civ. P. 54 and Rule 54.2 of the Rules for the United States District Co urt for the Western District of Oklahoma, defendants filed a bill of costs in the a mount of $6,888.75. To their bill of costs, defendants attached an affidavit of counsel and numerous documents supporting the amount of costs sought, and that the y were in relation to the proceedings in the district court. Plaintiff recei ved a copy of the bill of costs indicating that a hearing on the assessment would b e held on August 21, 1997. By letter dated August 5, 1997, the district court informed all parties of the date and time of hearing and advised that “[i]f there is no written objection filed to the Bill of Costs pursuant to Local Rule 54.2, the Cler k’s Office will tax same in3 On August 6, 1997, following plaintiff’s filing of his notice of appeal, this

court, under the erroneous impression that plaintif f was a prisoner, notified him that his appeal would be delayed pending assessmentof appeal fees by the district court. Id. Plaintiff contends that this letter somehow confu sed him as to his need to file written objections to the assessment of cos ts in the district court. The letter in question came from the court of appea ls, addressing only plaintiff’s fee for filing an appeal. The letter m ade no reference to the assessment of the costs of litigation pending in district court. It appears, and the district court observes, that plaintiff, despite his pro se status, is not a novice at federal court litigation. His contention that he was confus ed by this court’s letter regarding his fee for filing an appeal is, therefor e, unpersuasive.

-18- accordance with the Federal Rules of Civil Procedur e and our Local Rules; and your appearance at such hearing will not be necessary.” R. Supp. Vol. I, Doc. 168, ex. D. Plaintiff had fifteen days from the date the bill of costs was filed to file his written objections. Although plaintiff di d not file the required written objections, he did appear at the hearing. Following the hearing, the clerk assessed costs aga inst plaintiff in the amount requested. Although plaintiff had five days in which to appeal the assessment, see Fed. R. Civ. P. 54(d), instead he filed a motion f or leave to object to the bill of costs, claiming that a letter from t he clerk of this court concerning his appeal fees confused him. 3 The district court, construing plaintiff’s motionas a request to file objections out of time, directed defendants to respond. By order dated September 10, 1997, the district court determ ined that although plaintiff had express notice of the need to file timely written o bjections, he failed to do so.-19-

The court then denied plaintiff’s motion to file objections out of time and ordered the assessment of costs would stand. As defendants noted, plaintiff devoted very little argument to the merits of the costs assessment. He first asserts that his pro se status precludes any award of costs against him. Although 28 U.S.C. § 1915(a) (1) allows commencement of a civil suit without prepayment of costs and fees, § 1915(f)(1) allows a judgment “for costs at the conclusion of the suit or action as in other proceedings.” We have held that a grant of “‘in forma pauperis statu s pursuant to § 1915(a) does not preclude the court from assessing costs at the conc lusion of the suit.’” Treff v. Galetka , 74 F.3d 191, 196-97 (10th Cir. 1996) (quoting Ols on v. Coleman , 997 F.2d 726, 728 (10th Cir. 1993)). Next, plaintiff asserts that, because he had filed his notice of appeal in this court, the district court did not have jurisdiction to assess costs. “[A] request for costs raises issues wholly collateral to the judgme nt in the main cause of action. . . .” Buchanan v. Stanships, Inc. , 485 U.S. 265, 268 (1988). Federal Rule of Civil Procedure 58 states that “[e]ntry of the j udgment shall not be delayed, nor the time for appeal extended, in order to tax c osts or award fees.” Therefore, the district court’s orders granting summary judgme nt to defendants were final appealable orders, and defendants’ pending request to tax costs remained with the district court. See Smith v. Phillips , 881 F.2d 902, 905 n.9 (10th Cir. 1989)-20-

(district court retains jurisdiction to consider re quests for attorneys’ fees after appeal has been filed). Pursuant to Fed. R. Civ. P. 54(d), “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” The district court has broad discretion to award co sts to the prevailing party.
See Tilton v. Capital Cities/ABC, Inc. , 115 F.3d 1471, 1474 (10th Cir. 1997); Roberts v. Madigan , 921 F.2d 1047, 1058 (10th Cir. 1990). Here, we c onclude that the district court’s decision on the award of costs to defendants was not an abuse of discretion. The judgments of the United States District Court f or the Western District of Oklahoma are AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge