COTNER v. GOLDEN

COTNER v. GOLDEN
2006 OK 25
136 P.3d 630
Case Number: 102578
Decided: 04/25/2006

THE SUPREME COURT OF THE STATE OF OKLAHOMA

ROBERT COTNER, Petitioner,

¶0 ORDER ISSUING WRIT OF MANDAMUS WITH DIRECTIONS

¶1 Petitioner is a prisoner in the custody of the Oklahoma Department of Corrections. He mailed to the District Court Clerk of Creek County a petition and an in forma pauperis affidavit. The petition and affidavit were not filed. The affidavit was returned to Petitioner with a notation "Denied" with the date and signature of the District Judge. Petitioner seeks a writ compelling the clerk to file his petition and that he be allowed to proceed without payment of costs. We agree that his petition and affidavit should be filed in the District Court. However, his status to proceed without payment of costs and fees must be determined by the trial court after his petition and affidavit are filed.

¶2 We assume original jurisdiction. Okla. Const. Art. 7 § 4. An order adjudicating a prisoner's status to proceed without payment of costs is an interlocutory order when it allows the prisoner to proceed with the action in the trial court. Smith v. Moore,

¶3 When a trial court denies in forma pauperis status and the order acts as an end-of-the-line disposition of the action, the order satisfies the test of finality for the purpose of an appeal. Conterez v. O'Donnell,

¶4 The order of the District Court is an appealable order. However, none of Petitioner's tendered documents were filed in the District Court. In an appeal this Court does not presume error and an appeal without a record certified by the clerk of the lower tribunal gives this Court nothing to review for alleged error. Fleck v. Fleck,

¶5 We have required a clerk to file a tendered pauper's affidavit prior to judicial inquiry as to its sufficiency. State ex rel. McCalister v. Graham,

¶6 Petitioner does not possess a liberty or property interest in obtaining status as a pauper. Mehdipour,

¶7 When sham process is not filed a procedure for judicial review is provided.

¶8 When a prisoner has had three or more actions or appeals dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, then a District Court may require that prisoner to prepay filing fees; and the matter arising out of a civil case, original action, or on appeal, may not proceed unless the prisoner is under immediate danger of serious physical injury.

¶9 The orders published at Cotner v. Creek County Dist. Court,

¶10 A court may take judicial notice of its own records, but it usually does not take judicial notice of records in other courts. Robinson v. Texhoma Limestone, Inc.,

¶11 A writ of mandamus is issued and the Clerk of the District Court of Creek County shall accept for filing Petitioner's petition for a civil action when accompanied with either the filing fees and costs required by law or when accompanied by an affidavit in forma pauperis.

¶12 Nothing in this order limits the right of Petitioner's opposing parties to object to Petitioner's in forma pauperis affidavit filed in that court.

¶13 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 25th DAY OF APRIL, 2006.

/S/VICE CHIEF JUSTICE

¶14 WINCHESTER, V.C.J., LAVENDER, HARGRAVE, OPALA, KAUGER,
EDMONDSON, TAYLOR, COLBERT, JJ. - Concur