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.




Court of Appeals of Indiana | Memorandum Decision 33A01-1709-PL-2210 | February 22, 2018    Page 1 of 5
                                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
      Court of Appeals of Indiana | Memorandum Decision 33A01-1709-PL-2210 | February 22, 2018   Page 2 of 5
      $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;

      Court of Appeals of Indiana | Memorandum Decision 33A01-1709-PL-2210 | February 22, 2018   Page 3 of 5
                  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
      Court of Appeals of Indiana | Memorandum Decision 33A01-1709-PL-2210 | February 22, 2018   Page 4 of 5
       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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