Hernandez v. Montagari
- Laura Swain
- 1:23-cv-02043
- U.S. District Court · Southern District of New York
- 2
In Hernandez v. Montagari, Judge Swain ordered payment or an IFP application before processing the habeas petition.
Roberto Bacallao Hernandez was required to pay the $5 filing fee or submit a signed application to proceed without prepayment within 30 days; failure to comply would result in dismissal of the action.
What happened
In Hernandez v. Montagari, Roberto Bacallao Hernandez filed a petition asking the court to review his custody, but he did not pay the $5 filing fee or submit an application to proceed without paying it upfront.
The court gave Hernandez 30 days from March 21, 2023, to pay the fee or submit a signed application to proceed without prepayment. No response from A. Montagari was required at that time.
Judge Laura Taylor Swain ordered that the case would be processed if Hernandez complied and dismissed if he did not. She also denied permission to proceed without prepaying fees for any appeal from this order.
The detailed version
- Hernandez v. Montagari · No. 1:23-cv-02043
- Laura Swain
- Mar. 21, 2023
Background
Roberto Bacallao Hernandez, who was representing himself, filed a petition for a court remedy concerning custody. The opinion states that a petitioner must either pay the $5 filing fee or submit a signed application to proceed without prepaying fees. Hernandez submitted the petition without either the fee or an application.
Order
The court ordered Hernandez, within 30 days of the order, to do one of two things: pay the $5 filing fee or complete and submit the attached application to proceed without prepayment. The application was to include docket number 23-CV-2043 (LTS). The court explained that, if it granted the application, Hernandez could proceed without prepaying fees.
No response from A. Montagari was required at that time. If Hernandez complied, the Clerk’s Office would process the case under its procedures. If he failed to comply within the allowed time, the action would be dismissed.
Disposition
This order did not decide the substance of Hernandez’s petition. The court certified that an appeal from the order would not be taken in good faith and denied permission to proceed without prepaying fees for purposes of an appeal.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.