Diaz v. Thoms
- Edgardo Ramos
- 1:20-cv-00154
- U.S. District Court · Southern District of New York
- 3
In Diaz v. Thoms, Chief Judge McMahon ordered Diaz to provide an original signature and pay the filing fee or request permission to proceed without prepayment.
Richard Diaz, whose habeas petition was required to be corrected and supplemented before the case could proceed.
What happened
Diaz v. Thoms concerns Richard Diaz’s habeas petition, which was transferred to the Southern District of New York without his signature and without either the required filing fee or an application to proceed without prepaying it.
The court gave Diaz 30 days to resubmit the petition’s signature page with an original signature and either pay the $5 filing fee or submit a signed application to proceed without prepayment. The court also directed the clerk to correct the docket so Diaz’s surname would appear as “Diaz,” not “Diez.”
Chief Judge Colleen McMahon ordered that no response was required yet. She stated that failure to comply would result in dismissal without prejudice, and denied permission to appeal without prepaying fees.
The detailed version
- Diaz v. Thoms · No. 1:20-cv-00154
- Edgardo Ramos
- Jan. 8, 2020
Background
Richard Diaz, representing himself, filed a petition seeking habeas relief. The action had first been opened in the Eastern District of New York under docket number 19-CV-7048 and was transferred to the Southern District of New York. The petition arrived without Diaz’s signature and without the $5 filing fee or an application to proceed without prepayment of fees.
The opinion notes that Diaz spelled his surname as both “Diez” and “Diaz” in the petition. Based on public records, including records from the New York State Department of Corrections and Community Supervision, the court directed the clerk to list his surname as Diaz.
Court’s Directives
The court explained that court filings by a person without a lawyer must bear that person’s handwritten or otherwise personally placed signature. It directed Diaz to resubmit the petition’s signature page with an original signature within 30 days of the order.
The court also explained that a habeas petitioner must pay the $5 filing fee or submit a signed application to proceed without prepayment under federal filing-fee laws. Within the same 30-day period, Diaz had to pay the fee or complete and submit the attached application. If the application were granted, he could proceed without prepaying the fee.
Disposition
Chief Judge Colleen McMahon directed the clerk to mail the order to Diaz and record service on the docket. The court stated that no answer was required at that time. It ordered Diaz to provide the original signature and either pay the filing fee or submit the application. If he complied, the case would be processed under the clerk’s procedures; if he did not comply within the allowed time, the action would be dismissed without prejudice. The court also certified that an appeal would not be taken in good faith and denied permission to appeal without prepaying fees.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.