Penn v. Gallagher

Cite as 2015 Ark. 354SUPREME COURT OF ARKANSAS
No. CV-15-397
ALLEN LYNN PENN Opinion Delivered October 1, 2015
PETITIONER
PRO SE PETITION TO PROCEED IN
V. FORMA PAUPERIS
[PULASKI COUNTY CIRCUIT COURT,
NO. ____]
RICHARD GALLAGHER, CUSTODIAN
OF RECORDS, ARKANSAS STATE HONORABLE TIMOTHY DAVIS FOX,
CRIME LAB, AND KERMIT B. JUDGE
CHANNELL, EXECUTIVE DIRECTOR,
ARKANSAS STATE CRIME LAB REMANDED WITH DIRECTION FOR
RESPONDENTS SUBMISSION WITHIN TEN DAYS OF
CERTIFIED, FILE-MARKED COPY OF
PETITION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS AND ORDER
DENYING PETITION.
PER CURIAM
In the instant petition to proceed in forma pauperis, petitioner Allen Lynn Penn seeks
leave to file a motion for rule on clerk to lodge the record without paying the filing fee required
to file such a motion. Penn appended his affidavit of indigency to the petition and also tendered
the motion for rule on clerk to the court for filing.
The record before us reflects that Penn tendered for filing in the Pulaski County Circuit
Court a pro se petition for leave to proceed in forma pauperis with respect to a petition for writ
of mandamus and also a proposed order granting leave to proceed in forma pauperis. The
record further reflects that the proposed order granting leave to proceed in forma pauperis was
marked with a handwritten notation of the date, December 10, 2014, and “Petition Denied,” and
it appears to be initialed by Circuit Judge Timothy Davis Fox with the initials, “TDF.” Neither
Cite as 2015 Ark. 354the petition to proceed in forma pauperis nor the order was filed-marked by the circuit clerk or
assigned a case number. On January 12, 2015, Penn filed a notice of appeal from the denial of
his petition to proceed in forma pauperis; the notice of appeal does bear a file-mark and was
assigned a miscellaneous case number used to docket documents not associated with a specific
case. Per the circuit clerk’s certificate of record, the petition and order in the instant case were
not file-marked or assigned a case number because the motion to proceed in forma pauperis was
denied and no filing fee was submitted; thus, according to the circuit clerk, no civil action was
filed that would require the assignment of a case number.
On April 14, 2015, Penn timely tendered the appeal record to the clerk of this court. The
record was rejected by the clerk, however, because it lacked a file-marked copy of the order from
which Penn seeks to appeal.
We find that proper consideration cannot be given to Penn’s petition to proceed in forma
pauperis filed in this court without a certified, file-marked copy of the petition to proceed in
forma pauperis that Penn filed in circuit court and a certified, file-marked copy of the circuit
court order denying Penn’s petition. Accordingly, we remand the matter to the circuit court
with direction that the Pulaski County Circuit Clerk submit to this court within ten days a
certified, file-marked copy of the petition and the order denying it.
Remanded with direction for submission within ten days of certified, file-marked copy
of petition for leave to proceed in forma pauperis and order denying petition.
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