NORINGTON v. STATE (2018)

MEMORANDUM DECISION

Case Summary

[1] Lakesha Norington appeals pro se from the trial court's order dismissing her petition for writ of mandamus due to her failure to pay a partial filing fee of $1.67, as calculated by the trial court pursuant to Ind. Code § 33–37–3–3. On appeal, Norington argues that the trial court's dismissal was improper.

[2] We affirm.

Facts & Procedural History 1

[3] Norington is an inmate at the New Castle Correctional Facility. In April 2017, Norington sought to file a pro se petition for writ of mandamus in the Henry Circuit Court.² To that end, she filed a pro se appearance and a motion for waiver of court filing fees. On May 1, 2017, the trial court ordered Norington to file a certification of offender trust account as required by I.C. § 33–37–3–3 within forty-five days or have the case dismissed. Norington filed the certification of offender trust account as ordered on May 22, 2017. On June 6, 2017, the trial court issued an order finding that Norington was required to pay a partial filing fee of $1.67 within forty-five days. Norington did not pay the partial filing fee as ordered or seek an extension of time within which to do so, and the trial court dismissed her case on August 23, 2017. Norington now appeals.³

Discussion & Decision

[4] On appeal, Norington claims that she was unable to pay the $1.67 filing fee and that the dismissal of her civil case based on her failure to do so violates numerous statutory and constitutional provisions, as well as at least one international treaty. The flaws in her arguments are too numerous to discuss in detail; it suffices for our purposes to say that the authority she cites is inapplicable ⁴ and the arguments she makes are misinformed and based on the unproven premise that she is unable to pay the partial filing fee.

[5] Pursuant to I.C. § 33–37–3–3(a), an offender confined by the Department of Correction who commences an action or proceeding without paying fees or court costs must provide a certified copy of his or her prisoner trust account statement for the six months immediately preceding the submission of the complaint or petition. I.C. § 33–37–3–3(b) provides that

The offender shall pay a partial filing fee that is twenty percent (20%) of the greater of:

(1) the average monthly deposits to the offender's account; or

(2) the average monthly balance in the offender's account;

for the six (6) months immediately preceding the filing of the complaint or petition.

[6] Norington's trust account statement showed that her average monthly balance was zero, but her average monthly deposits were $8.34. Consequently, Norington was required by statute to pay a partial filing fee of $1.67 as ordered by the trial court. I.C. § 33–37–3–3(c) allows an offender who is unable to pay the partial filing fee to seek relief from the requirement by filing an affidavit of special circumstances, but Norington failed to do so.⁵ Norington has not established that the trial court's dismissal due to her failure to pay the partial filing fee was in any way improper.

[7] Judgment affirmed.

FOOTNOTES

2.   In the petition, Norington sought to enjoin the Department of Correction and its employees from engaging in allegedly discriminatory behavior.

3.   This court granted Norington's motion to proceed in forma pauperis on appeal on October 13, 2017.

4.   The same can be said of Norington's “Request for Judicial Notice”, filed on February 12, 2018, in which she asks this court to take judicial notice of Indiana's Administrative Orders and Procedures Act.

5.   On November 11, 2017, Norington filed a motion to correct error in the trial court in which she claimed that she was unable to pay the partial filing fee because all of the funds deposited into her trust account are automatically deducted to pay a restitution award totaling $2000. The motion was clearly untimely, and because Norington had already initiated this appeal and the notice of completion of clerk's record had been issued on October 19, 2017, the trial court did not rule on the motion. See Ind. Trial Rule 59(C) (providing that a motion to correct error shall be filed not later than thirty days after the entry of a final judgment); Ind. Appellate Rule 8 (providing that “[t]he Court on Appeal acquires jurisdiction on the date the Notice of Completion of Clerk's Record is noted in the Chronological Case Summary”).

Altice, Judge.

[8] Najam, J. and Robb, J., concur.