Kearse v. Kopp
- Laura Swain
- 1:24-cv-04015
- U.S. District Court · Southern District of New York
- 2
In Kearse v. Kopp, Judge Swain ordered the pro se petitioner to pay or seek fee relief, submit an original signature, and warned of dismissal for noncompliance.
Howard Kearse, who must meet the court’s fee and signature requirements within 30 days or face dismissal of the action.
What happened
In Kearse v. Kopp, Howard Kearse filed a petition asking the court to review his custody through a legal process called habeas corpus. He was representing himself and submitted neither the required filing fee nor an application to proceed without prepaying it, and he did not sign the petition.
The court gave Kearse 30 days to either pay the $5 filing fee or submit a completed, signed application to proceed without prepayment. It also required him to resubmit the petition’s signature page with an original signature. The court said no response from the respondent was required at that time and warned that the action would be dismissed if Kearse did not comply.
Judge Laura Taylor Swain also ruled that no certificate allowing an appeal would issue because the petition did not make a substantial showing that a constitutional right had been denied. She further denied fee relief for an appeal, certifying that an appeal would not be taken in good faith.
The detailed version
- Kearse v. Kopp · No. 1:24-cv-04015
- Laura Swain
- June 3, 2024
Background
Howard Kearse, who was proceeding without a lawyer, filed a petition for a writ of habeas corpus, a court procedure for challenging custody. He submitted the petition without paying the $5 filing fee and without an application asking to proceed without prepaying court fees. He also submitted the petition without a signature.
Court’s directives
The court directed Kearse, within 30 days, to do both of the following:
1. Pay the $5 filing fee or complete and submit the attached application to proceed without prepayment of fees. 2. Resubmit the petition’s signature page with an original signature.
The court explained that an unrepresented party must personally sign a filing. If Kearse submitted the fee application and the court granted it, he would be allowed to proceed without prepaying the filing fee. No answer from the respondent was required at that time. The court stated that the case would proceed through the Clerk’s Office if Kearse complied, but that the action would be dismissed if he did not comply within the 30-day period.
Appeal-related rulings
The court stated that the petition made no substantial showing that a constitutional right had been denied, so a certificate of appealability would not issue. A certificate of appealability is a required court authorization for an appeal in this type of case. The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to proceed without prepaying fees for an appeal.
Disposition
Judge Laura Taylor Swain issued an order directing payment of the filing fee or submission of an application to proceed without prepayment, and directing submission of an original signature. The order did not decide the underlying habeas petition. It warned that the action would be dismissed if Kearse failed to comply.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.