Phelps v. Superintendent
- Katherine Failla
- 1:20-cv-10352
- U.S. District Court · Southern District of New York
- 4
In Phelps v. Superintendent, Judge Failla extended the deadline to pay the filing fee or submit a signed fee-waiver application.
Darryl Phelps, whose habeas petition could proceed only after he paid the $5 filing fee or submitted a signed application to proceed without prepaying fees; the Superintendent was not required to answer at this time.
What happened
Phelps v. Superintendent concerns Darryl Phelps’s petition for a writ of habeas corpus. The court had previously told him that he needed to pay the $5 filing fee or submit a signed application to proceed without paying it upfront.
The court repeated those requirements and extended Phelps’s deadline to February 4, 2021. It also provided an application form and explained that failing to pay the fee or submit the signed application could result in dismissal of the action.
Judge Katherine Polk Failla directed the Clerk of Court to mail the order to Phelps and record that service on the docket. The court did not require an answer from the respondent at that time and did not decide the habeas petition’s merits.
The detailed version
- Phelps v. Superintendent · No. 1:20-cv-10352
- Katherine Failla
- Jan. 14, 2021
Background
The court received Darryl Phelps’s letter dated January 7, 2021. Phelps is pursuing a petition for a writ of habeas corpus under 28 U.S.C. § 2254. In an earlier order dated December 29, 2020, the court told him that he had to either pay the $5 filing fee or submit a signed application to proceed without prepaying fees, commonly called an IFP application.
Order
The court reiterated those requirements and extended Phelps’s response deadline to February 4, 2021. It attached an IFP application for Phelps to use and instructed him to identify the case by docket number 20 Civ. 10352 (KPF) if he submitted it. The order explained that, if the court grants the application, Phelps could proceed without paying the fee in advance.
The court stated that if Phelps did neither—pay the filing fee nor submit a signed IFP application within the allowed time—the action would be dismissed. A footnote also stated that Phelps could notify the court within 30 days if he wanted to withdraw the application rather than have it treated as a petition under § 2254; otherwise, it would remain designated as a § 2254 petition.
Disposition
Judge Katherine Polk Failla directed the Clerk of Court to mail Phelps a copy of the order and note service on the docket. The court stated that no answer was required at that time. This order addressed payment of the filing fee and the application to proceed without prepayment; it did not decide the substance of Phelps’s habeas petition.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.