ARKANSAS SUPREME COURT
No.
NOT DESIGNATED FOR PUBLICATION
EDWARD JOE HOOTEN
Petitioner
06-1167
Opinion Delivered
February 8, 2007
PRO SE MOTION FOR
RECONSIDERATION OF MOTION
FOR LEAVE TO PROCEED IN FORMA
PAUPERIS [CIRCUIT COURT OF
CRAWFORD COUNTY, CV 2005395(I)]
v.
GARY COTTRELL, CIRCUIT JUDGE
Respondent
MOTION FOR RECONSIDERATION
DENIED.
PER CURIAM
Petitioner Edward Joe Hooten, who is incarcerated in the Arkansas Department of Correction
and proceeding pro se, filed a civil complaint for breach of contract in the Circuit Court of Crawford
County on August 11, 2005, against Argyle Dale Hooten, Jr. On August 2, 2006, petitioner tendered
to this court a pro se petition for writ of mandamus, seeking a writ to compel Gary R. Cottrell, the
circuit judge in whose court the complaint was pending, to hold a hearing on the complaint.
Petitioner was duly advised by one of our staff attorneys of the need to submit a certified partial
record of the proceedings in the lower court with the filing fee required to file a petition for writ of
mandamus here.
On October 11, 2006, petitioner submitted the partial record but not the filing fee. He then
filed a motion asking to be permitted to file the mandamus action without paying a filing fee.
Appended to the motion was petitioner’s affidavit of indigency. As grounds for the motion to
proceed in forma pauperis, petitioner alleged that he was unable to pay the fee, that he was entitled
to the writ, and that the mandamus petition was not brought for a frivolous or malicious purpose.
Finding that it is well settled that where no fundamental right is involved, filing fees do not violate
due process and that petitioner had failed to establish that a fundamental right was involved, we
denied the motion. Hooten v. Cotrell, 06-1167 (Ark. Jan. 4, 2007) (per curiam). Petitioner, who
was directed to submit the fee to file the mandamus petition within thirty days, now seeks
reconsideration of the motion to proceed in forma pauperis.
Petitioner asserts that he has been indigent since his incarceration began some three years ago
and that the respondent to the mandamus action has declined to set a hearing in his civil case until
petitioner is released from prison. He contends that respondent’s action has caused an unreasonable
delay in the case in which petitioner stands to lose twenty-five per cent of a rightful inheritance.
Finally, he states that he has a fundamental right to access to the court without unreasonable delay.
Rule 72 of the Arkansas Rules of Civil Procedure conditions the right to proceed in forma
pauperis on, among other things, the court’s satisfaction that the alleged facts indicate a colorable
cause of action. 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. Id. at 412, 12 S.W.3d
202-203. Where no fundamental right is involved, filing fees do not violate due process. Partin v.
Bar of Arkansas, 320 Ark. 37, 894 S.W.2d 906 (1995). Because petitioner’s assertion of prejudice,
which is not substantiated by facts, is insufficient to establish that petitioner has a colorable cause
of action with respect to either the petition for writ of mandamus or the underlying civil suit, the
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motion for reconsideration of the motion to proceed in forma pauperis is denied.
When petitioner’s original motion to proceed in forma pauperis was denied on January 4,
2007, he was allowed until February 5, 2007, to submit the fee to file the mandamus petition. The
time to submit the fee is extended to ten days from the date of this opinion.
Motion for reconsideration denied.
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