                                   Cite as 2016 Ark. 285

                SUPREME COURT OF ARKANSAS
                                       No.   CV-16-472


                                                 Opinion Delivered June   23, 2016
   REGINALD L. DUNAHUE

                     PETITIONER PETITION FOR INTERVENTION
                                AND COURT ORDER TO COMPLY
   V.                           TREATED AS MOTION FOR RULE
                                ON CLERK
   HON. JODI RAINES DENNIS,
   CIRCUIT JUDGE, AND CINDY
   GLOVER, CIRCUIT CLERK OF
   LINCOLN COUNTY

                            RESPONDENTS SPECIAL MASTER APPOINTED.


                                      PER CURIAM

       Reginald L. Dunahue is an inmate of the Arkansas Department of Correction by

virtue of a conviction in 2008 for aggravated robbery. He was sentenced as a habitual

offender to 600 months’ imprisonment. On May 24, 2016, he tendered a pro se pleading to

this court asking us to intervene and to direct Circuit Judge Jodi Raines Dennis and Lincoln

County Circuit Clerk Cindy Glover to permit him to file his pro se petitions for writs of

habeas corpus and petitions for writs of mandamus. Neither Judge Dennis nor Clerk Glover

has filed a responsive pleading. We treat his pleadings as a motion for rule on clerk and

appoint a special master.

       Dunahue contends that he has the recurring problem of submitting “numerous”

petitions to the Lincoln County Circuit Clerk that are not filed. He explains that because

he has not been granted indigent status, he is ordered to submit at least a partial filing fee
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that he cannot afford. As his pleadings and the accompanying orders are not filed, Dunahue

is prevented from appealing them.

       In support of his allegations, Dunahue has appended to his petition an order signed

by Judge Dennis. The March 8, 2016 order is not file-marked and does not contain a docket

number in the matter of “Reginald Dunahue v. ADC Director-Wendy Kelley,” which Dunahue

states was a petition for writ of habeas corpus. The order finds that Dunahue not indigent

and thus invokes Act 340 of 1997, codified at Arkansas Code Annotated sections 16-68-

601 et seq. (Repl. 2005). The order sets an initial partial filing-fee amount and further states

that the “clerk is authorized to destroy the pleadings sent by the plaintiff” if the partial fee

is not tendered within sixty days. Dunahue also appended a typewritten note from the clerk

that states she does not have a specific time to shred documents and that she waits at least

four to six months to give the person time to pay the filing fee.

       This court has addressed the question of when a petitioner may proceed in forma

pauperis in a civil matter. The issue is preliminarily governed by Arkansas Rule of Civil

Procedure 72 (2015). The Rule conditions the right to proceed in forma pauperis in civil

matters upon indigency and, among other things, the court’s satisfaction that the alleged

facts indicate a colorable cause of action. Id. In the order Dunahue appended, there is a

finding that he is not indigent without reference to whether there was a colorable cause of

action. Regardless of the reason for denying the petition, we have been clear that there is a

duty to file-mark the petition and to enter an order to create a proper record. Penn v.

Gallagher, 2015 Ark. 472, at 4 (per curiam); see also Penn v. Gallagher, 2015 Ark. 354 (per

curiam).

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       Act 340 provides that the court shall enter an order for partial payment of filing fees

for incarcerated persons who are not indigent and thus do not qualify for relief under Rule

72. Ark. Code Ann. § 16-68-601 et seq. Moreover, the Act specifically provides that

when an incarcerated person “files a civil action,” and the court determines that the person

has the ability to pay, that the court shall order a partial payment “as a condition of the

commencement or further prosecution of the action.” Ark. Code Ann. § 16-68-

606(a)(emphasis added).

       Until an order denying petitioner’s indigent status is filed in the circuit court, there

is no effective order from which petitioner may appeal the court’s decision. Pursuant to

Arkansas Rule of Civil Procedure 58 (2014), “[a] judgment or decree is effective only when

so set forth and entered as provided in Administrative Order No. 2.” Administrative Order

No. 2(b)(2) (2015) provides that “[t]he clerk shall denote the date and time that a judgment,

decree or order is filed by stamping or otherwise marking it with the date and time and the

word ‘filed.’” (Emphasis added.) This court has held that a circuit court may not prevent an

appeal from an adverse decision by implementing procedures that prevent petitioners from

filing timely appeals. See White v. State, 373 Ark. 415, 418, 284 S.W.3d 64, 66 (2008) (per

curiam).

       There are a number of inmates housed within the jurisdiction of the Lincoln County

Circuit Court. Those prisoners frequently tender petitions for writs of habeas corpus and

other civil actions to the Lincoln County Circuit Clerk. This court is concerned that the

problem Dunahue encountered in the current matter is systemwide. This is not the first




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occasion in which this court has had to order Clerk Glover to file pleadings by an inmate.

Halfacre v. Kelley, 2016 Ark. 71 (per curiam).

       Typically, this court would do as it did in Halfacre and order the clerk to file the

pleadings. However, to further complicate the present matter, it appears that subsequent

pleadings have been filed in Dunahue’s underlying civil case. It also appears that after

Dunahue sought relief from this court, Judge Dennis modified the original order with a

different result, and Clerk Glover filed Dunahue’s pleadings and the amended order.

However, the pleadings and orders have incongruent filing dates, as well as having some

language added and some language removed. There is an obvious danger if orders are not

filed on the correct date as time for appeal begins to run from the filing date.

       As we do not have a certified record, we are unable to determine what has precisely

occurred and whether Dunahue’s motion is now moot. Even if the motion is moot, he has

alleged that there is a custom or practice in Lincoln County. That raises the question of

whether the practice would be capable of repetition yet continue to evade review, which is

an exception to the mootness doctrine. See Terry v. White, 374 Ark. 387, 288 S.W.3d 199

(2008). We must ensure there is not a system in place that prevents appeals from denial of

petitions for in forma pauperis status. We cannot expect every inmate to be as tenacious as

Dunahue is in obtaining relief.

       Therefore, we appoint the Honorable John Mauzy Pittman as special master to

ascertain the practice of handling these types of matters in Lincoln County, what specifically

occurred in this case, the current status of Dunahue’s petition in Lincoln County, whether

subsequent orders and prior pleadings were marked filed on dates different than when

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presented by Dunahue and entered by the court, and whether his pleading before us, while

moot, could be capable of repetition in the future under the practices in Lincoln County.




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