Barnett v. Payne

2017 Ark. 124

• Court: Supreme Court of Arkansas
• Decided: April 13, 2017
• Docket: CV-16-1015
• Status: Published

Opinion

Cite as 2017 Ark. 124

SUPREME COURT OF ARKANSAS. No. CV-16-1015

Opinion Delivered April 13, 2017 MATTHEW W. BARNETT APPELLANT PRO SE APPEAL FROM PULASKI V. COUNTY CIRCUIT COURT [No. 600T-50-6 ] DEXTER PAYNE, ASSISTANT DIRECTOR, ARKANSAS HONORABLE TIMOTHY DAVIS DEPARTMENT OF CORRECTION; FOX, JUDGE MS. RAMSEY, GRIMES UNIT CLASSIFICATION OFFICER; AND MR. PEARCE, GRIMES UNIT CLASSIFICATION OFFICER REMANDED. APPELLEES

PER CURIAM

Appellant Matthew W. Barnett submitted to the Pulaski County Circuit Court a pro

se petition for leave to proceed in forma pauperis so that he might initiate an action seeking

judicial review of an administrative action taken by the named appellees, employees of the

Arkansas Department of Correction, who had denied a grievance filed by Barnett that was

related to his application for a work-release program. Barnett also submitted to the circuit

court an affidavit of indigency in support of his request to proceed in forma pauperis.

The petition to proceed as a pauper and the underlying pleading were file marked

and assigned a miscellaneous case number used to docket documents not associated with a

specific circuit court case number. The circuit court denied the in forma pauperis petition

without stating the factual basis for the denial. Barnett filed a timely appeal from the denial Cite as 2017 Ark. 124

of his in forma pauperis petition, and the record on appeal was lodged in this court on

November 10, 2016. Barnett filed a timely brief. The State has not filed a responsive brief.

Under Rule 72 of the Arkansas Rules of Civil Procedure (2016), the right to proceed

in forma pauperis is based on, among other things, indigency and the circuit court’s

satisfaction that the alleged facts indicate a colorable cause of action. Dunahue v. Dennis,

2016 Ark. 285, at 2 (per curiam); Boles v. Huckabee, 340 Ark. 410, 12 S.W.3d 201 (2000)

(per curiam). A colorable cause of action is a claim that is legitimate and may reasonably be

asserted given the facts presented and the current law or a reasonable and logical extension

or modification of it. Dunahue, 2016 Ark. 285, at 2

Rule 72 mandates that the circuit court make a specific finding of indigency based

on the petitioner’s affidavit. Here, the circuit court did not address the validity of Barnett’s

affidavit of indigency nor did it address whether Barnett’s underlying pleading stated a

colorable cause of action. Appellate courts do not make findings of fact but rather review

findings of fact of the circuit court to determine whether they are clearly erroneous. Ward

v. Williams, 354 Ark. 168, 177, 118 S.W.3d 513, 518 (2003). Because the circuit court

failed to enter an order setting forth the factual basis for denying Barnett’s in forma pauperis

petition, the matter is remanded for that purpose. The court is directed to file a

supplemental order within thirty days and submit that order to this court in compliance with

Rule 72. When the remand is returned, a new briefing schedule will be set for the appeal.

Remanded.

Matthew W. Barnett, pro se appellant.

One brief only.