Joseph L. Stephens v. Simmons First National Bank

ARKANSAS SUPREME COURT

No. 05-619

NOT DESIGNATED FOR PUBLICATION

JOSEPH L. STEPHENS

Petitioner

v.

SIMMONS FIRST NATIONAL BANK

Respondents

Opinion Delivered June 30, 2005

PRO SE MOTION FOR APPEAL TO PROCEED IN FORMA PAUPERIS [CIRCUIT COURT OF JEFFERSON COUNTY, CV 2003-837]

MOTION DENIED

PER CURIAM

Joseph L. Stephens, who is incarcerated in the Arkansas Department of Correction and proceeding pro se, filed a civil complaint against Simmons First National Bank Corporation and two of its officers on November 4, 2003, alleging violation of the Arkansas Freedom of Information Act for failure to respond to requests under that act. The complaint was dismissed by order entered December 29, 2004. Stephens filed a notice of appeal of the order on January 13, 2005 and tendered the record on appeal to this court. After he was advised of the filing fee for lodging the appeal, Stephens filed this motion to proceed in forma pauperis.

Rule 72 of the Arkansas Rules of Civil Procedure requires a court to determine that the petitioner requesting leave to proceed in forma pauperis has demonstrated 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. Boles v. Huckabee, 340 Ark. 410, 12 S.W.3d 201 (2000). Petitioner Stephens has not demonstrated such a claim here.

Petitioner's complaint alleged violation of the Arkansas Freedom of Information Act by the defendants' failure to provide requested documents. For a record to be subject to the Freedom of Information Act and available to the public, it must be possessed by an entity covered by the act, fall within the act's definition of public record, and not be exempted by the act or other statutes. Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987); Ark. Code Ann. § 25-19-105 (Supp. 2003). The defendants are not entities covered by the act, and petitioner pled no facts in his complaint that indicate the requested records were public records as defined in Ark. Code Ann. § 25-19-103(5) (Supp. 2003). See, Arkansas Department of Finance and Administration v. Pharmacy Associates, Inc., 333 Ark. 451, 970 S.W.2d 217 (1998). Because petitioner has not demonstrated a legitimate claim that may be asserted given the facts presented and the current law or a reasonable modification or extension of it, he has not established a colorable cause of action to support his request to proceed in forma pauperis. He is not entitled to proceed as an indigent. Petitioner is responsible for tendering the required filing fee at his expense.

Motion denied.