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

R EVERSED AND REMAND ED

.

R HONDA K. W OOD , Associate Justice Appellant Allen Lynn Penn is an inmate incarcerated in the Arkansas Department of
Correction . He appeal s 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 petiti on for writ of mandamus to obtain the evidence

. Th e circuit court denied Penn’s in forma paup eris petition without elaboration. Penn appeals.

1 This court affirmed Penn’s conviction on a capital

- murder charge and his sentence to li fe imprisonment without parole. Penn v. State , 284 Ark. 234, 681 S.W.2d 307 (1984).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 Pro cedure 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 co urt 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 r easonable 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 argue s 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 An notated 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 sufficient ly 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 r emanded. Allen Lynn Penn , pro se appellant.
Do ralee Chandler , General Counsel, for appellees.