REAVES v. TERRE HAUTE REGIONAL HOSPITAL et al

Filing 186

Order Denying Motion to Reconsider - Ms. Archer has not clearly established that the Court committed error in granting Mr. Reaves leave to proceed on appeal in forma pauperis and assessing an initial partial filing fee of $45.28. Her motion to reconsider, dkt. 183 , is denied. Mr. Reaves shall continue to have through December 28, 2020, to pay the $45.28 initial partial filing fee to the clerk of the district court. SEE ORDER. Signed by Judge James Patrick Hanlon on 12/4/2020. (KAA)

Case 2:18-cv-00084-JPH-MJD Document 186 Filed 12/04/20 Page 1 of 4 PageID #: 2207

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DOUGLAS A. REAVES,

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Plaintiff,
v.
BARBARA RIGGS, et al.
Defendants.

No. 2:18-cv-00084-JPH-MJD

Order Denying Motion to Reconsider
On November 12, 2020, the Court granted plaintiff Douglas Reaves's motion to proceed
on appeal in forma pauperis and assessed an initial partial filing fee of $45.28. Dkt. 181. Defendant
Donna Archer then filed a motion to reconsider that order. Dkt. 183. Mr. Reaves has responded to
the motion to reconsider, and Ms. Archer has replied. For the reasons explained below, the motion
to reconsider, dkt. [183], is denied.
Section 1915(a) authorizes a court to allow the commencement of a civil case or appeal,
"without prepayment of fees or security therefor, by a person who submits an affidavit that includes
a statement of all assets such prisoner possesses that the person is unable to pay such fees or give
security therefor." 28 U.S.C. § 1915(a)(1). If a prisoner brings a civil suit or files an appeal in
forma pauperis, a court shall access and collect "an initial partial filing fee of 20 percent of the
greater of— (A) the average monthly deposits to the prisoner's account; or (B) the average monthly
balance in the prisoner's account for the 6-month period immediately preceding the filing of the
complaint or notice of appeal." Id. § 1915(b)(1).
According to the "Certificate of Prisoner Account" submitted with Mr. Reaves's motion to
proceed on appeal in forma pauperis, the balance in his account as of October 20, 2020, was $5.16.

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See dkt. 177-1 at 1. The average monthly balance for his account during the preceding six months
was $226.38. Id. The Court assessed an initial partial filing fee based on the higher of these two
amounts—the average monthly balance for Mr. Reaves's account. Twenty percent of $226.38 is
$45.28, and this is the initial partial filing fee assessed by the Court. See dkt. 181.
Ms. Archer seeks reconsideration of this calculation, arguing that the initial partial filing
fee is too low. Ms. Archer is incorrect. First, she calculates the average monthly balance of
Mr. Reaves's account using funds that were deposited and withdrawn in April 2020. See 183-1 at
2. The Court cannot consider these deposits and withdrawals, however, because § 1915(b)(1)
instructs courts to consider the six-month period "immediately preceding" the filing of the notice
of appeal. See 28 U.S.C. § 1915(b)(1). Because Mr. Reaves filed his notice of appeal on November
10, 2020, see dkt. 176, the applicable six-month period began May 10, 2020, and the Court cannot
consider deposits and withdrawals made before that date.
Second, in addition to using information outside the applicable six-month period,
Ms. Archer assumes that Mr. Reaves's account balance was $0.00 on the date she began her
calculations. The Court cannot accept this assumption. Although the account statement attached
to Mr. Reaves's motion to proceed on appeal in forma pauperis does not provide enough
information to calculate the average monthly balance in Mr. Reaves's account beginning on May
10, 2020, because it does not provide the account balance as of that date, the average monthly
balance of Mr. Reaves's account was provided in the certified statement from a prison official
submitted by Mr. Reaves. See dkt. 177-1 at 1. Ms. Archer's incomplete calculations that include
improper deposits and withdrawals are not sufficient evidence to refute that certified statement. 1

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Were the Court to employ the same assumption as Ms. Archer and calculate Mr. Reaves's average monthly
balance beginning on May 10, 2020, and use a balance of $0.00 as of that date, Mr. Reaves's initial partial
filing fee would be calculated using the average monthly deposits into his account because the withdrawals
from his account are significantly greater than the deposits into his account. An initial partial filing fee

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Finally, Ms. Archer contends that the Court should have denied Mr. Reaves's motion to
proceed on appeal in forma pauperis or assessed a higher initial partial filing fee because
Mr. Reaves has outstanding filing fees in another appeal. See dkt. 183 at 2-3. This argument is
unavailing because the only proscriptions against allowing a prisoner to proceed on appeal in
forma pauperis are § 1915(a)(3) and § 1915(g). In granting Mr. Reaves's motion for leave to
proceed on appeal in forma pauperis the Court concluded that the appeal was taken in good faith
rendering § 1915(a)(3) inapplicable to Mr. Reaves. Section 1915(g) is similarly inapplicable to
Mr. Reaves because he has not brought cases on three or more prior occasions that were dismissed
on grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(g).
For these reasons, Ms. Archer has not clearly established that the Court committed error in
granting Mr. Reaves leave to proceed on appeal in forma pauperis and assessing an initial partial
filing fee of $45.28. Her motion to reconsider, dkt. [183], is denied. Mr. Reaves shall continue
to have through December 28, 2020, to pay the $45.28 initial partial filing fee to the clerk of
the district court.
SO ORDERED.
Date: 12/4/2020

based on the average monthly deposits into Mr. Reaves's account would be $13.53, or much less than the
initial partial filing fee assessed by the Court.

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Distribution:
DOUGLAS A. REAVES
881987
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Alex Maurice Beeman
REMINGER CO. LPA (Indianapolis)
[e-mail]
Douglass R. Bitner
KATZ KORIN CUNNINGHAM, P.C.
[e-mail]
David C. Dickmeyer
INDIANA ATTORNEY GENERAL
[e-mail]
Marley Genele Hancock
INDIANA ATTORNEY GENERAL
[e-mail]
Rachel D. Johnson
KATZ KORIN CUNNINGHAM, P.C.
[e-mail]
Ronald A. Mingus
REMINGER CO. LPA (Indianapolis)
[e-mail]

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