Reginald Dunahue v. Aundrea Culclager, Warden, Arkansas Department of Correction Kennie Bolden, Security Warden Captain Kenneth Starks Sgt. Daryl James And Marshall Reed, Deputy Director , 2022 Ark. 62 ( 2022 )

Cite as 2022 Ark. 62SUPREME COURT OF ARKANSAS
No. CV-21-388
Opinion Delivered: March 17, 2022
REGINALD DUNAHUE
APPELLANT PRO SE APPEAL FROM THE LINCOLN
COUNTY CIRCUIT COURT; PRO SE
V. MOTION FOR THE COURT TO
REFER TO AND CONSIDER CERTAIN
ORDERS AND REQUESTS MADE
AUNDREA CULCLAGER, WARDEN, [NO. 40CV-20-64]
ARKANSAS DEPARTMENT OF
CORRECTION; KENNIE BOLDEN, HONORABLE JODI RAINES DENNIS,
SECURITY WARDEN; CAPTAIN JUDGE
KENNETH STARKS; SGT. DARYL
JAMES; AND MARSHALL REED, APPEAL DISMISSED; MOTION MOOT.
DEPUTY DIRECTOR
APPELLEES
JOHN DAN KEMP, Chief Justice
Appellant Reginald Dunahue appeals an order entered by the Lincoln County Circuit
Court dismissing a complaint filed in June 2020 for lack of service of process. After the
appeal had been lodged and the briefs filed, Dunahue filed a motion in which he asked this
court to refer to and consider the circuit court’s orders and Dunahue’s requests. Because the
record lodged on appeal is inadequate for our review, we dismiss the appeal, rendering the
motion moot.
In June 2020, Dunahue filed a civil-rights complaint against the appellees. Dunahue
sought an appeal from the denial of a motion for default judgment in the civil-rights matter.1
This court dismissed the appeal because the denial of a motion for default judgment is not
a final, appealable order. Dunahue v. Culclager, 2021 Ark. 83, at 1–2.2 The pending appeal
appears to concern a June 2020 complaint referenced in the circuit court’s order of dismissal.
However, the fifteen-page record is nominally composed of two notices of appeal,3 a June 24,
2021 order of dismissal, and a July 27, 2021 order of dismissal that sets aside the June 24
order of dismissal.
Although the parties have fully briefed the matter, we will not consider evidence not
included in the record on appeal. See Polivka v. State, 2010 Ark. 152, at 16, 362 S.W.3d 918,
928. The burden is on the party asserting error to bring up a sufficient record on which to
grant relief. Manuel v. State, 2021 Ark. 24, at 4. We cannot consider the merits of the civil-
rights complaint and the timeliness of service because those documents and the evidence
relevant to this appeal are not in the record. The record that is presently lodged relates to a
1
The appeal was lodged in this court in case number CV-20-613.
2
Dunahue also filed a motion for rule on clerk asking that the clerk of this court file
his appellate brief and addendum even though his addendum did not comport with the rules
of appellate procedure. Additionally, Dunahue had pending a petition for writ of mandamus
in which he asked the court to compel the circuit clerk to send copies of his complaint and
summons to the Lincoln County Sheriff. The dismissal of the appeal rendered the motion
and petition moot.
3
Although both notices of appeal state that they appeal an order entered June 24,
2021, each bears a different file-mark. One is file-marked July 22, 2021, and the other is file-
marked August 5, 2021.
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prior appeal, but Dunahue has made no request to consolidate the records, which renders
the record before this court inadequate.
Appeal dismissed; motion moot.
WOMACK, J., concurs.
WOOD and WEBB, JJ., dissent.
BARBARA W. WEBB, Justice, dissenting. I dissent. Mr. Dunahue’s appeal should not
be summarily dismissed. He did everything that our rules require to perfect his appeal. Mr.
Dunahue’s notice of appeal requests the complete record and states in pertinent part:
DESIGNATION OF RECORD
Petitioner/Appellant hereby designates the entire record, and all
proceedings, exhibits, evidence, and documents introduced in evidence to be
contained in the record on appeal.
The Lincoln County Circuit Clerk––not Mr. Dunahue––prepared the record on
appeal. Furthermore, the parts of the record that the majority claims are missing are actually
on file with this court.
Mr. Dunahue’s prior attempt to appeal this case was dismissed for lack of a final
order. Dunahue v. Culclager, 2021 Ark. 83. When Mr. Dunahue’s prior appeal was dismissed,
the transcript remained filed in the Arkansas Supreme Court. Mr. Dunahue obtained a final
order, which was in the supplemental record that was filed in this court. Moreover, the
documents that the majority claims are lacking were contained in Mr. Dunahue’s addendum.
Likewise in its appellee brief, the State cited to either Mr. Dunahue’s addendum or the
electronic record. I cannot ignore the fact that the State had no apparent difficulty in
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opposing Mr. Dunahue’s appellate argument on the merits. Moreover, a PDF of the full
transcript of this case was obtainable within minutes by simply calling the supreme court
deputy clerk in charge of filed records.
I offer no opinion on the merits of Mr. Dunahue’s appeal. I dissent only because this
appeal should have been decided on the merits.
Reginald Dunahue, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Maryna O. Jackson, Ass’t Att’y Gen., for appellee.
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