FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60OT-50-6]
HONORABLE TIMOTHY DAVIS FOX, JUDGE
Jenniffer Horan, Federal Defender, by: April Golden and Scott
W. Braden, Ass't Federal Defenders, for appellant.
Rutledge, Att'y Gen., by: Ka Tina R. Hodge, Ass't
Att'y Gen., for appellee.
JOSEPHINE LINKER HART, JUSTICE
Earl Ward appeals from an order of the Pulaski County Circuit
Court dismissing with prejudice his civil rights case in
which he challenged the conditions of his confinement in the
Varner Supermax Unit of the Arkansas Department of
Correction. On appeal, Ward argues that the order of
dismissal with prejudice should be vacated because the
circuit court lacked jurisdiction to enter it.
a prisoner on death row, awaiting execution for the August
11, 1989 capitol murder of Rebecca Doss. On October 12, 2015,
Ward submitted a document captioned "Petition for Leave
to Proceed In Forma Pauperis (IFP)" to the Pulaski
County Circuit Court. Along with this petition, Ward tendered
a complaint asserting a civil rights claim under 42 U.S.C.
§ 1983. Ward had filed an identical complaint in federal
court but had voluntarily nonsuited his federal case before
he attempted to file his complaint in state court. Several
state officials were named as defendants. Ward did not
attempt to serve any of the named defendants.
both the IFP and the complaint were electronically stamped
with the date and time, neither was assigned a civil case
number by the clerk's office, as no filing fee had been
paid. Instead, the pleadings were given an administrative, or
miscellaneous, number that the circuit clerk's office
used to keep track of nonfiled documents.
October 12, 2015, the circuit court denied Ward's IFP
with no explanation. Like the IFP and the complaint, the
order bore an administrative, or miscellaneous
number.On October 13, 2015, Ward submitted to the
circuit clerk's office a motion for reconsideration or
clarification of the order denying his IFP. Attached to the
motion for reconsideration was an affidavit in support of the
IFP indicating that Ward was a prisoner on death row at the
Varner Supermax Unit, that he was not employed, that he
received no money from business or self-employment, and that
as of September 30, 2015, he had $43.72 in his prison
account. Ward also sought clarification of the IFP
denial-whether the court found that he did not qualify
financially or that he failed to make a colorable showing of
a cause of action as required by Rule 72 of the Arkansas
Rules of Civil Procedure. The circuit court denied Ward's
motion for reconsideration without making findings on October
Ward filed a notice of appeal from the IFP and
reconsideration denials on October 14, 2015, there is no
evidence that a record on appeal was prepared or
lodged. On February 24, 2016, appellees used the
administrative case number to file a motion to dismiss. In
that motion, appellees argued that because Ward failed to
serve them with process within 120 days from the "filing
of the complaint," the circuit court was obligated to
dismiss the suit under Arkansas Civil Procedure Rule 4(i)(1)
and that the dismissal would operate as an adjudication on
the merits under Arkansas Civil Procedure Rule 41(b) because
Ward had previously voluntarily dismissed a similar claim in
federal court. No action was taken on this motion by any
judge at the circuit court.
26, 2017, appellees filed a second motion to dismiss, again
using the administrative case number. In that motion,
appellees asserted that their first motion to dismiss was
still pending and that because Ward had "taken no
action" on the case for one year, dismissal was proper
under Rule 41(b). Appellees also repeated the assertion that
the dismissal was an adjudication on the merits because of
the previous voluntary dismissal in federal court. Ward did
not respond to this motion.
31, 2017, the circuit court dismissed Ward's complaint
with prejudice. The order recited that the "cause of
action" was "dismissed with prejudice for failure
to prosecute." The order further noted that the
dismissal served as an "adjudication on the
merits." The written order was filed under the
administrative case number.
13, 2017, Ward asked the circuit court to reconsider. He
argued that because he never paid a filing fee or was granted
indigent status, the complaint was never officially filed;
therefore, no cause of action had been commenced, and there
was no case to dismiss. On July 10, 2017, the circuit court
denied the motion for reconsideration without explanation.
Ward timely filed a notice of appeal
appeal, Ward argues that the circuit court's order
dismissing his "cause of action" should be vacated
for lack of jurisdiction because Ward never filed a complaint
for the circuit court to dismiss. Ward asserts that he
submitted a motion to proceed in forma pauperis along with a
complaint to the Pulaski County Circuit Clerk; however, the
circuit court did not grant his motion. Accordingly, because
the circuit court declined to find him indigent, and because
Ward never paid a filing fee to the circuit clerk, the
complaint was never filed and no action was commenced. Ward
cites Arkansas Code Annotated section 16-58-101(a) (Repl.
2005) to support this proposition. It states in pertinent
part: "No action shall be entered upon the docket of any
court nor any original mesne or final process issued . . .
until the fees for entering the case upon the docket . . .
[are] paid." Arguing further, Ward notes that the record
supports this assertion because the complaint bears no file
mark, and the clerk's office did not assign the case a
civil case number, only a "generic number" assigned
to all similar cases. Furthermore, Ward argues that because
his complaint was not filed, he was not obligated to act
further, for instance, to serve the named defendants. This
argument is persuasive.
is the power or authority of the court to act. W. Memphis
Sch. Dist. v. Circuit Court of Crittenden Cty., 316 Ark.
290, 871 S.W.2d 368 (1994). When a circuit court acts without
jurisdiction, its orders and judgments are void. Rose v.
Harbor E., Inc., 2013 Ark. 496, 430 S.W.3d 773. A
circuit court acquires jurisdiction over a cause of action
when a complaint is filed with the circuit clerk. Ark. R.
Civ. P. 3(a). The payment of a filing fee, or waiver of that
fee pursuant to Rule 72 of the Arkansas Rules of Civil
Procedure, is required before a civil action will be filed.
Ark. Code Ann. § 16-58-101(a); see McClellan v.
Young, 232 Ark. 679, 339 S.W.2d 624 ...