[Copyrighted Material Omitted]
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH
DIVISION [NO. 60CV-18-738], HONORABLE MACKIE M. PIERCE, JUDGE
Rutledge, Atty Gen., by: Robert T. James, Asst Atty Gen.,
A. WOMACK, Associate Justice
Muntaqim, an inmate of the Arkansas Department of Correction
(ADC), appeals the denial of his petition to proceed
in forma pauperis in a civil action requesting judicial
review under the Administrative Procedure Act (APA). He
claims prison officials initiated and conducted a
disciplinary proceeding against him in violation of his
constitutional rights. Because we conclude Muntaqim failed to
sufficiently raise a constitutional question, we affirm for
reasons set forth below.
incarcerated at the Ouachita River Unit of ADC, Muntaqim
requested transfer to the Varner Unit. In that request, he
wrote that he "will not do a year class 4 at [Ouachita
River] before something crazy happens because staff here has
no respect for black people." When asked whether that
statement was a threat toward prison officials, Muntaqim
replied he was "just letting the major know ...
something crazy will happen" if his transfer was not
granted. He was subsequently charged with a major
disciplinary violation for failure to obey staff orders,
insolence towards staff, and assault. After a hearing,
Muntaqim was found guilty of assault and insolence towards
staff. He received twenty days in punitive isolation and a
class reduction. He also lost commissary, phone, and
visitation privileges for sixty days.
Muntaqim appealed his disciplinary conviction and alleged
that prison officials failed to comply with ADC disciplinary
policy. His administrative appeal was rejected as untimely.
He also filed multiple grievances stemming from the
disciplinary process, accusing prison officials of engaging
in retaliatory conduct motivated by racial animus and failing
to comply with the disciplinary policy. Those grievances were
found to be without merit.
Muntaqim sought judicial review of his disciplinary charges
under the APA and petitioned to proceed in forma pauperis. He
named multiple ADC officials in their official and individual
capacities, claiming they failed to adhere to ADC
disciplinary policies. The circuit court denied that
petition, concluding that Muntaqim failed to state a
colorable cause of action and that ADC officials were
entitled to sovereign immunity. This appeal followed.
Standard of Review
review a decision denying a petition to proceed in forma
pauperis for abuse of discretion. Muldrow v. Kelley,
2018 Ark. 12');">2018 Ark. 126');">2018 Ark. 12');">2018 Ark. 126, at 2, 542 S.W.3d 856, 858. The right to
proceed in forma pauperis in a civil action turns on the
petitioners indigency and the circuit courts satisfaction
that the alleged facts indicate a colorable cause of action.
Ark. R. Civ. P. 72(c) (2017). The circuit court must make a
specific finding of indigency before considering whether the
underlying petition alleges a colorable cause of action.
Gardner v. Kelley, 2018 Ark. 212, at 2, 549 S.W.3d
349, 350. Because the court below failed to make this
finding, we must remand unless the record shows the
underlying cause of action cannot proceed as a matter of law.
Id. As to issues of law presented, our review is de
novo. Ashby v. State, 2017 Ark. 233, at 2-3, 2017 WL
Judicial review of administrative complaints is generally
unavailable to ADC inmates. See Ark. Code Ann. §
25-15-212(a) (Repl. 2014). But this rule does not preclude
review of an asserted constitutional violation. Clinton
v. Bonds, 306 Ark. 554, 558, 816 S.W.2d 169, 172 (1991).
This exception is not triggered by conclusory allegations of
a constitutional violation. Smith v. Hobbs, 2014
Ark. 270, at 4, 2014 WL 2566101 (per curiam). When an inmate
challenges a disciplinary proceeding and prison officials
implementation of ADC policy, as Muntaqim does here, the
petition must allege a constitutional question sufficient to
raise a liberty interest. Id.
Otherwise, the claim cannot fall within the classification of
claims subject to judicial review. Id. Muntaqim
contends that ADC officials violated due process, equal
protection, and the First Amendment. Our de novo review of
the record, however, reveals that Muntaqims ...