Penn v. Gallagher
2015 Ark. 472
| Ark. | 2015Background
- Penn timely tendered an appeal record to the Arkansas Supreme Court seeking to proceed in forma pauperis for a petition for writ of mandamus.
- The Pulaski County Circuit Court had denied Penn's petition to proceed in forma pauperis and did not file-mark the order or assign a case number.
- The court clerk initially rejected the appeal record for lacking a file-marked order, prompting Penn to seek a rule on the clerk and to refile in this court.
- This court remanded to obtain a certified, file-marked copy of Penn’s indigency petition and the circuit court’s denial order.
- Upon receiving the file-marked copies, the court proceeded to decide whether Penn may file the motion for rule on clerk without paying a filing fee.
- The governing rule is Arkansas Rule of Civil Procedure 72, requiring a colorable claim and other conditions to proceed in forma pauperis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Penn may proceed in forma pauperis to file a motion for rule on clerk | Penn argues indigency entitles him to proceed without fees. | Gallagher contends no colorable claim and no fee waiver without colorable action. | Denied; Penn failed to show colorable claim. |
| Whether Penn shows a colorable claim under Rule 72 | Penn asserts entitlement to relief and no frivolous purpose. | Defendant contends no colorable cause of action exists under current facts. | Not established; no colorable claim. |
| Whether a filing fee must be paid to proceed with the motion for rule on clerk | Indigency should permit filing without fee. | Fee required absent colorable claim or other exception. | Fee required; Penn must pay to proceed. |
| Whether the circuit court’s indigent-denial order must be entered to permit appeal | Penn seeks to appeal the indigent denial. | Underscores necessity of proper entry to confer appealability. | Order must be entered of record; without entry, no effective order for appeal. |
Key Cases Cited
- Ehler v. Post-Prison Transfer Bd., 2015 Ark. 139 (Ark. 2015) (colorable claim prerequisite for proceeding in forma pauperis)
- Mitchell v. Post-Prison Transfer Bd., 2015 Ark. 140 (Ark. 2015) (per curiam; fee considerations in forma pauperis actions)
- Brown v. Sachar, 2013 Ark. 319 (Ark. 2013) (fee requirements when no fundamental right asserted)
- McGhee v. Ark. Bd. of Collection Agencies, 368 Ark. 60 (Ark. 2006) (procedural requirements for entry of judgments and orders)