MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Feb 22 2018, 9:04 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE
Jeffrey Allen Rowe
New Castle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey Allen Rowe, February 22, 2018
Appellant-Plaintiff, Court of Appeals Case No.
33A01-1709-PL-2210
v. Appeal from the Henry Circuit
Court
The Geo Group, Inc., et al., The Honorable Kit C. Dean Crane,
Appellee-Defendant. Judge
Trial Court Cause No.
33C02-1706-PL-35
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Jeffrey Allen Rowe (Rowe), appeals the trial court’s
dismissal of his cause for failure to make a timely payment of filing fees.
[2] We affirm.
ISSUE
[3] Rowe presents us with one issue on appeal, which we restate as: Whether the
trial court properly dismissed his case after Rowe failed to pay his partial filing
fee.
FACTS AND PROCEDURAL HISTORY
[4] On June 19, 2017, Rowe, a state prisoner, filed a verified petition to waive the
civil court filing fees, an affidavit of special circumstances, and a certification of
inmate trust account, together with his Civil Rights Complaint pursuant to 42
U.S.C. § 1983 against The Geo Group, Inc., a case work manager, and a
correctional captain. In his verified petition, Rowe requested the trial court to
waive his filing fee in accordance with Ind. Code § 33-37-3-2 due to the fact that
he is incarcerated and “unable to make the payments or to give security for the
payments because of his indigency.” (Appellant’s App. p. 11). Affirming in his
affidavit of special circumstances that he does not have a prison job and his
“dad cannot afford to send [him] any money for a couple of months,” Rowe
requested a waiver of the trial court’s filing fees. (Appellant’s App. p. 13). On
June 26, 2017, upon review of Rowe’s trust account information, the trial court
determined “that the average monthly deposit to [Rowe’s] trust account is
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$36.34.” and concluded that “the Clerk may proceed with the filing of [Rowe’s]
pleadings upon the payment of $7.27 toward court costs.” (Appellant’s App. p.
6). On July 24, 2017, the trial court denied Rowe’s motion for reconsideration
and on September 5, 2017, dismissed Rowe’s cause.
[5] Rowe now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[6] Rowe contends that the trial court abused its discretion when it dismissed his
cause for failure to pay the partial filing fee of $7.27. Indiana Code section 33-
37-3-3 provides that, as a general rule, incarcerated persons must pay a partial
filing fee, and provides, as follows:
(a) When an offender confined by the department of correction
commences an action or proceeding without paying fees or
other court costs under section 2 of this chapter, the offender
shall obtain from the appropriate official of the correctional
facility or facilities at which the offender is or was confined a
certified copy of the prisoner’s trust fund account statement
for the six (6) months immediately preceding submission of
the complaint or petition. The offender shall file the trust
fund account statement in addition to the statement required
under section 2 of this chapter.
(b) The offender shall pay a partial filing fee that is twenty (20%)
of the greater of:
(1) The average monthly deposits of the offender’s account; or
(2) The average monthly balance in the offender’s account;
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for the six (6) months immediately preceding the filing of the
complaint or petition. However, the fee may not exceed the
full statutory fee for the commencement of actions or
proceedings.
(c) If the offender claims exceptional circumstances that render
the offender unable to pay the partial filing fee required by
this section, in addition to the statement required by section 2
of this chapter and the statement of account required by
subsection (a), the offender shall submit an affidavit of special
circumstances setting forth the reasons and circumstances that
justify relief from the partial filing fee requirement.
(d) If the court approves the application to waive all fees, the
court shall give written notice to the offender that all fees and
costs relating to the filing and service will be waived. If the
court denies the application to waive all fees, the court shall
give written notice to the offender that the offender’s case will
be dismissed if the partial filing fee is not paid not later than
forty-five (45) days after the date of the order, or within an
additional period that the court may, upon request, allow.
Process concerning the offender’s case may not be served until
the fee is paid.
[7] After review of Rowe’s trust account, the trial court found that no special
circumstances were present, and calculated that Rowe was required to pay a
partial filing fee of $7.27. In accordance with the statute, the trial court gave
Rowe until August 10, 2017 to pay the partial filing fee. Rowe now claims that
the trial court violated his Fourteenth Amendment Right to due process and
equal protection “by conditioning his right to access the courts on an initial
partial filing fee[.]” (Appellant’s Br. p. 10). The Fourteenth Amendment to the
United States Constitution prohibits the states from denying “to any person
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within its jurisdiction the equal protection of the laws.” U.S. CONST. AMEND.
XIV § 1. To establish a prima facie case of violation of a person’s equal
protection rights, a plaintiff must show that “he or she is a member of a
protected class, that he or she is otherwise similarly situated to members of the
unprotected class, and that he or she was treated differently from members of
the unprotected class.” Dickson v. Aaron, 667 N.E.2d 759, 763 (Ind. Ct. App.
1996) (quoting Sims v. Mulcahy, 902 F.2d 524, 538 (7th Cir. 1990), cert. denied,
498 U.S. 897 (1990)), trans. denied. “Moreover, a plaintiff alleging a violation of
the equal protection clause must not only establish that he was treated
differently, but he must also establish that the defendants acted with
discriminatory intent.” Id. In his appellate brief, besides making some very
generalized allegations, Rowe failed to establish that the trial court treated him
differently from any other prisoner who seeks access to the court. Accordingly,
we conclude that the trial court did not abuse its discretion by dismissing his
claim.
CONCLUSION
[8] Based on the forgoing, we hold that the trial court properly dismissed Rowe’s
cause upon failing to pay his partial filing fee.
[9] Affirmed.
[10] Baker, J. and Brown, J. concur
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