ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

April 5, 2001

EUGENE ISAAC PITTS

Petitioner

v.

POST-PRISON TRANSFER BOARD

Respondent

00-267

PRO SE MOTION FOR RECONSIDERATION OF MOTION TO WITHDRAW MOTION FOR RULE ON CLERK [CIRCUIT COURT OF PULASKI COUNTY, NO. CV 99-5881]

MOTION FOR RECONSIDERATION DENIED

In 1999, Eugene Isaac Pitts brought a civil action for declaratory judgment against the Arkansas Post Prison Transfer Board. On November 4, 1999, the circuit court dismissed the action on the ground that no justiciable controversy existed. Pitts filed a notice of appeal and attempted to lodge the record in this court without paying a filing fee. When he was notified that he must remit a filing fee to the clerk to lodge an appeal in a civil matter, he filed a motion asking this court to waive the filing fee. We dismissed the motion. Pitts v. Post-Prison Transfer Board, 00-267 (May 11, 2000).

On June 28, 2000, Pitts tendered a partial filing fee to lodge the appeal which was returned to him because there is no statutory provision for a partial filing fee to be accepted by an appellate court.1 On September 18, 2000, Pitts tendered the full filing fee, but our clerk declined to lodge the record at that time because the time allowed for lodging a record had elapsed. Pitts' then paid the filing fee required to filed a motion for rule on clerk seeking to file the record belatedly. On February 6, 2001, Pitts filed a motion to withdraw the motion for rule on clerk and for return of the fee he paid to file the motion. We permitted Mr. Pitts to withdraw the motion but found that the filing fee was not subject to refund. Pitts v. Post-Prison Transfer Board, 00-267 (February 15, 2001).

Pitts now asks that we reconsider his request to refund the filing fee, contending that retaining the filing fee for a "pleading that was never accepted by the clerk for filing" constituted an unlawful and unjust taking of his property. He further argues that if the filing fee was not subject to refund, the request to withdraw the motion for rule on clerk should have been denied.

The motion for reconsideration is denied. The fee was not assessed for filing the appeal of the order that denied petitioner Pitt's petition for declaratory judgment. It was assessed for the filing of the motion for rule on clerk. The fact that petitioner later sought and was granted leave to withdraw the motion for rule on clerk did make the filing fee subject to refund.

As for petitioner's assertion that this court should not have allowed him to withdraw the motion for rule on clerk, he said in the motion that the matter had become moot as the result of subsequent action of the appellee and that there no longer existed a justiciable claim or controversy. Under these circumstances, there would be no basis for petitioner to pursue themotion for rule on clerk.

Motion for reconsideration denied.

1 Arkansas Code Annotated §16-68-601, et seq (1997), provides that lower courts may accept an initial partial filing fee from incarcerated persons to file civil actions.