Cite as 2017 Ark. 283

No. CV-16-387

ALLEN LYNN PENN

APPELLANT

V.

RICHARD GALLAGHER, ASSISTANT 

DIRECTOR, AND KERMIT B. 

CHANNELL, EXECUTIVE DIRECTOR, 

ARKANSAS STATE CRIME 

LABORATORY 

APPELLEES

Opinion Delivered October 19, 2017

PRO SE APPEAL FROM THE 

PULASKI COUNTY CIRCUIT 

COURT 

[NO. 60OT-50-6]

HONORABLE TIMOTHY DAVIS 

FOX, JUDGE

REVERSED AND REMANDED.

RHONDA K. WOOD, Associate Justice

Appellant Allen Lynn Penn is an inmate incarcerated in the Arkansas Department of 

Correction. He appeals the circuit court’s denial of his pro se petition for leave to proceed 

in forma pauperis in a civil matter. We reverse and remand.

In 2014, Penn wrote the Arkansas State Crime Lab seeking release of certain 

documents from his criminal case file and the confirmation by the Arkansas State Crime 

Laboratory of the existence of certain evidence—some bloody glass and fingerprints that 

Penn believed had been collected by the police investigating the crime.1 Assistant Director 

Gallagher denied this request. Subsequently, Penn sought to proceed as a pauper so that he 

could file a pro se petition for writ of mandamus to obtain the evidence. The circuit court 

denied Penn’s in forma pauperis petition without elaboration. Penn appeals. 

 

1 This court affirmed Penn’s conviction on a capital-murder charge and his sentence 

to life imprisonment without parole. Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984). 

SUPREME COURT OF ARKANSAS.
Cite as 2017 Ark. 283

2

Our review of a decision to grant or deny a petition to proceed in forma pauperis is 

abuse of discretion. Jordan v. State, 273 Ark. 75, 616 S.W.2d 480 (1981). The trial court’s 

factual findings in support of its exercise of discretion will not be reversed unless clearly 

erroneous. Johnson v. State, 2017 Ark. 106, 515 S.W.3d 116. Rule 72 of the Arkansas Rules 

of Civil Procedure conditions the right to proceed in forma pauperis in civil matters upon

indigency and the circuit court’s satisfaction that the alleged facts indicate “a colorable cause 

of action.” Ark. R. Civ. P. 72(c) (2016). Rule 72 requires a circuit court to make findings 

of fact if it determines a petitioner is not indigent. Id. 

The circuit court did not make findings of fact that Penn was not indigent. It is 

uncontested that he had no funds in his inmate-trust account. Thus, the parties adopt the 

position that the circuit court denied relief after determining Penn failed to state 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.” Watts v. Kelley, 2017 Ark. 189, at 5, 520 S.W.3d 249, 252. 

Whether Penn ultimately can succeed in a writ of mandamus action initially depends 

on which version of Arkansas Code Annotated section 12-12-312 applies. Penn argues the 

crime lab must follow our precedent in Davis v. Deen, 2014 Ark. 313, 437 S.W.3d 694 (per 

curiam), which interpreted Arkansas Code Annotated section 12-12-312(a)(1)(B)(ii) (Repl. 

2003). However, when Penn made his request to the crime lab, a new version of the statute 

was in place; Arkansas Code Annotated section 12-12-312 (Supp. 2013). On appeal, 

appellees base their position on Arkansas Code Annotated section 12-12-312(a)(1)(B)(ii) 

(Repl. 2016).
Cite as 2017 Ark. 283

3

Regardless of which statutory version is applicable, Penn’s petition asserts facts to 

support a colorable claim for relief and is worthy of development at the circuit court level. 

Given his indigency status and his petition sufficiently stating a colorable cause of action, 

the circuit court’s denial of Penn’s petition to proceed in forma pauperis was clearly 

erroneous. 

Accordingly, we reverse and remand. 

Reversed and remanded. 

Allen Lynn Penn, pro se appellant.

Doralee Chandler, General Counsel, for appellees.