* This case is unanimously ordered submitted without oral argument pursuant

to the applicable rules. This order and judgment i s not binding precedent, except under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders an d judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. UNITED STATES COURT OF APPEALS Filed 9/3/96 FOR THE TENTH CIRCUIT

RICHARD NAGOL,

Plaintiff-Appellant,

v. CITY OF DEMING; DAVID LANEY, Officer; WILLIAM MCKINLEY, Officer, Defendants-Appellees. No. 96-2029 (D.C. No. CIV-92-131-MV) (D. N.M.)

ORDER AND JUDGMENT *
Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.

Plaintiff appeals the district court’s entry of sum mary judgment in favor of defendant police officers and the City of Deming on his § 1983 claims for false arrest for forging or making a fictitious driver’s license and for refusing to be1 Plaintiff asserted additional claims, some of which were disposed of on

summary judgment, and two of which went to trial. Plaintiff does not appeal the disposition of these other claims. -2- fingerprinted incident to arrest. 1 Plaintiff also appeals the district court’s determination that plaintiff should pay defendants’ costs. The police officers moved for summary judgment on t he ground that, to the extent they were sued in their individual capacitie s, they were qualifiedly immune. When a defendant asserts qualified immunity in a su mmary judgment context, we apply special rules to determine whethe r the motion was properly granted or denied. We must first ask if aplaintiff has asserted the violation of a constitutional right atall, and then assess whether that right was clearly established at the t ime of a defendant’s actions. Taylor v. Meacham , 82 F.3d 1556, 1559 (10th Cir. 1996)(quotations an d citation omitted), petition for cert. filed , 65 U.S.L.W. 3130 (U.S. Aug. 5, 1996)(No. 96- 211). Plaintiff “has the burden of showing with particularity facts and law establishing the inference that [defendants] violat ed a constitutional right.” Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). The district court determined that plaintiff’s arre st under N.M. Stat. Ann. § 66-5-18, relating to altered, forged or fictitiou s driver’s licenses, “does not contravene any law,” R. Vol. II, Doc. 85 at 7. The district court further held that plaintiff had not established that he had a right t o refuse to be fingerprinted-3-

following a misdemeanor arrest and that nothing in N.M. Stat. Ann. § 29-3-8 (which mandates fingerprinting for certain offenses ) or in any other state or federal law precludes a municipality from requiring that misdemeanor arrestees be fingerprinted. Concluding that plaintiff did not m eet his burden of showing that the police officers’ conduct violated plaintiff’s c onstitutional rights, the court granted summary judgment in favor of the officers. As to the City of Deming, the court held that the c ity would not be liable to plaintiff under § 1983 unless plaintiff could estab lish that it maintained an unconstitutional policy. The district court conclu ded that neither the law nor the facts asserted by plaintiff established the existen ce of an unconstitutional policy in connection with the arrests at issue, and entere d summary judgment in favor of the city, as well. We review the grant or denial of summary judgment d e novo, applying the same standards as the district court under Fed. R. Civ. P. 56(c). Wolf v. Prudential Ins. Co. of Am. , 50 F.3d 793, 796 (10th Cir. 1995). Thus, we revi ew the factual record and any reasonable inferences th erefrom in the light most favorable to the plaintiff to determine whether the re is a genuine issue as to any material fact. Id. If we determine there are no genuine issues of material fact in dispute, we then look to see whether the district c ourt correctly applied the substantive law. Id. Based upon our review of the record and the perti nent law,-4-

we conclude that the district court properly entere d summary judgment in favor of defendants on plaintiff’s claims for false arrest r elating to his driver’s license and his refusal to be fingerprinted incident to arrest, see United States v.Snow , 82 F.3d 935, 943 (10th Cir. 1996); cf. Davis v. Mississippi , 394 U.S. 721, 727-28 (1969). We turn to the issue of costs. Two of plaintiff’s claims survived summary judgment and proceeded to trial. When the districtcourt entered judgment on the jury verdicts, it ordered that costs be taxed again st plaintiff. Plaintiff argues on appeal that costs should not be assessed against hi m because he is proceeding in forma pauperis, he is not represented by counsel, a nd he allegedly prevailed on issues for which defendants seek costs. The distri ct court’s docket sheet shows that after judgment was entered on the jury verdict s, defendants filed a motion and memorandum for costs, and plaintiff subsequentl y filed objections to the motion for costs. The record is silent as to wheth er the district court has ruled on the motion or plaintiff’s objections. Like attorney fees, the question of costs is collat eral to, and separate from, a decision on the merits. See Buchanan v. Stanships, Inc. , 485 U.S. 265, 267-68 (1988). We have held that an order that establishe s fee liability, but not the amount of fees, is interlocutory in nature. See Utah Women’s Clinic , Inc. v. Leavitt , 75 F.3d 564, 568 (10th Cir. 1995), cert. denied , 116 S. Ct. 2551 (1996).-5-

Here, the district court has yet to determine what costs may appropriately be assessed against plaintiff or what effect his asserted indigence may have on the assessment of costs. See, e.g. , McGill v. Faulkner , 18 F.3d 456 (7th Cir.), cert. denied , 115 S. Ct. 233 (1994); Weaver v. Toombs , 948 F.2d 1004 (6th Cir. 1991). Because the district court has yet to resolve the i ssues relating to the assessment of costs, plaintiff’s present appeal of this matteris premature. Plaintiff must await the outcome of the district court’s final ord er on costs and then pursue another appeal if he is dissatisfied. That portion of the appeal concerning the assessment of costs is DISMISSED for lack of jurisdiction. The judgment o f the United States District Court is in all other respects AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Carlos F. Lucero Circuit Judge