Berger v. Kelley
Berger v. Kelley
Opinion of the Court
Appellant Russell Berger lodged in this court the instant appeal of an order that denied his pro se petition for leave to proceed in forma pauperis in which he sought to proceed with a civil-rights complaint against employees of the Arkansas Department of Correction (ADC). The order contested found that Berger was not indigent, must pay the statutory filing fee for the action, and set an initial partial filing fee to be collected by the ADC.
In her brief, the appellee contends that the order contained in the record, which is titled as an "order setting initial partial filing fee," was not one that ruled on Berger's in forma pauperis petition. However, the order disposed of the petition by finding that Berger was not indigent. As the appellee acknowledges, Arkansas Rule of Civil Procedure 72 (2017) conditions the right to proceed in forma pauperis in civil *559matters on indigency and the circuit court's satisfaction that the alleged facts indicate "a colorable cause of action." Ark. R. Civ. P. 72(c) (2017). The circuit court is to first make a specific finding of indigency based on the petitioner's affidavit before addressing whether the petitioner has stated a colorable cause of action. Ark. R. Civ. P. 72(c). Once the court makes a finding that the petitioner is not indigent, as it did in the order setting initial partial filing fee, the analysis is complete. Although the order does not make the explicit statement that the petition was denied when it concluded that Berger was not a pauper, by doing so, the order had that effect.
An order that determines an action and prevents a judgment from which an appeal might be taken is an appealable order under Arkansas Rule of Appellate Procedure-Civil 2(a)(2) (2017). McKenzie v. Pierce ,
The order in this case, however, is not sufficient for our review because it does not set forth the factual basis for the circuit court's finding that Berger was not a pauper. The order states that the court determined Berger was not indigent, but it gives no reason for the decision.
On appeal, the standard of review is whether the trial court abused its discretion in finding that petitioner was not indigent. Burmingham v. State ,
When there are obvious defects in the underlying petition, this court may summarily dispose of an appeal from the denial of in forma pauperis proceedings. Wood v.State ,
We accordingly remand to the circuit court for a supplemental order on the in forma pauperis petition that contains adequate findings of fact on this issue. We caution that this remand is for the limited purpose of further factual findings outlining the circuit court's basis for its determination that Berger was not a pauper. We are not remanding to permit the circuit court to reconsider its initial determination that Berger was not a pauper, but rather for the court to provide an explanation of its reasoning for that conclusion. The order is to be entered, and the supplemental record containing the order returned, within thirty days from the date of this opinion. Once the supplemental record is received, our Clerk is directed to set a new briefing schedule.
Remanded for findings of fact.
As discussed below, although the order did not specifically reference Berger's petition or indicate that it was denied, the order setting the partial filing fee is the only order in the record that disposes of the petition.
The certificate by the ADC officer that was attached to Berger's affidavit indicated that Berger had five cents in his account two days before the affidavit was signed.
Reference
- Full Case Name
- Russell BERGER v. Wendy KELLEY, Director, Arkansas Department of Correction
- Cited By
- 4 cases
- Status
- Published