Penn v. Gallagher

Cite as 2017 Ark. 283SUPREME COURT OF ARKANSAS.
No. CV-16-387
ALLEN LYNN PENN Opinion Delivered October 19, 2017
APPELLANT
PRO SE APPEAL FROM THE
V. PULASKI COUNTY CIRCUIT
COURT
RICHARD GALLAGHER, ASSISTANT [NO. 60OT-50-6]
DIRECTOR, AND KERMIT B.
CHANNELL, EXECUTIVE DIRECTOR, HONORABLE TIMOTHY DAVIS
ARKANSAS STATE CRIME FOX, JUDGE
LABORATORY
APPELLEES
REVERSED AND REMANDED.
RHONDA K. WOOD, Associate Justice
Appellant Allen Lynn Penn is an inmate incarcerated in the Arkansas Department of
Correction. He appeals the circuit court’s denial of his pro se petition for leave to proceed
in forma pauperis in a civil matter. We reverse and remand.
In 2014, Penn wrote the Arkansas State Crime Lab seeking release of certain
documents from his criminal case file and the confirmation by the Arkansas State Crime
Laboratory of the existence of certain evidence—some bloody glass and fingerprints that
Penn believed had been collected by the police investigating the crime.1 Assistant Director
Gallagher denied this request. Subsequently, Penn sought to proceed as a pauper so that he
could file a pro se petition for writ of mandamus to obtain the evidence. The circuit court
denied Penn’s in forma pauperis petition without elaboration. Penn appeals.
1
This court affirmed Penn’s conviction on a capital-murder charge and his sentence
to life imprisonment without parole. Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984).
Cite as 2017 Ark. 283Our review of a decision to grant or deny a petition to proceed in forma pauperis is
abuse of discretion. Jordan v. State, 273 Ark. 75, 616 S.W.2d 480 (1981). The trial court’s
factual findings in support of its exercise of discretion will not be reversed unless clearly
erroneous. Johnson v. State, 2017 Ark. 106, 515 S.W.3d 116. Rule 72 of the Arkansas Rules
of Civil Procedure conditions the right to proceed in forma pauperis in civil matters upon
indigency and the circuit court’s satisfaction that the alleged facts indicate “a colorable cause
of action.” Ark. R. Civ. P. 72(c) (2016). Rule 72 requires a circuit court to make findings
of fact if it determines a petitioner is not indigent. Id.The circuit court did not make findings of fact that Penn was not indigent. It is
uncontested that he had no funds in his inmate-trust account. Thus, the parties adopt the
position that the circuit court denied relief after determining Penn failed to state a colorable
cause of action. “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.” Watts v. Kelley, 2017 Ark. 189, at 5, 520 S.W.3d 249, 252.
Whether Penn ultimately can succeed in a writ of mandamus action initially depends
on which version of Arkansas Code Annotated section 12-12-312 applies. Penn argues the
crime lab must follow our precedent in Davis v. Deen, 2014 Ark. 313, 437 S.W.3d 694 (per
curiam), which interpreted Arkansas Code Annotated section 12-12-312(a)(1)(B)(ii) (Repl.
2003). However, when Penn made his request to the crime lab, a new version of the statute
was in place; Arkansas Code Annotated section 12-12-312 (Supp. 2013). On appeal,
appellees base their position on Arkansas Code Annotated section 12-12-312(a)(1)(B)(ii)
(Repl. 2016).
2
Cite as 2017 Ark. 283Regardless of which statutory version is applicable, Penn’s petition asserts facts to
support a colorable claim for relief and is worthy of development at the circuit court level.
Given his indigency status and his petition sufficiently stating a colorable cause of action,
the circuit court’s denial of Penn’s petition to proceed in forma pauperis was clearly
erroneous.
Accordingly, we reverse and remand.
Reversed and remanded.
Allen Lynn Penn, pro se appellant.
Doralee Chandler, General Counsel, for appellees.
3