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 dismissed the petition without prejudice because Hernandez neither paid the fee nor sought a fee waiver.
The dismissal affected Roberto Bacallao Hernandez's petition. Because the court dismissed it without prejudice, the opinion states that the dismissal was not a bar to refiling.
What happened
In Roberto Bacallao Hernandez v. A. Montagari, the court required Hernandez to either pay the $5 filing fee or submit a request to proceed without paying it. The case concerned a petition for a writ of habeas corpus.
The court had given Hernandez 30 days to comply and warned that failing to do so would result in dismissal. Hernandez did not submit the request or pay the fee.
Judge Laura Taylor Swain dismissed the petition without prejudice, meaning the dismissal did not bar refiling. The court also denied permission to appeal without paying the appeal fee and directed the Clerk of Court to enter judgment.
The detailed version
- Hernandez v. Montagari · No. 1:23-cv-02043
- Laura Swain
- May 8, 2023
Background
Roberto Bacallao Hernandez filed a petition for a writ of habeas corpus. On March 21, 2023, the court directed him, within 30 days, either to pay the required $5 filing fee or submit a completed application to proceed in forma pauperis (IFP), which is a request to proceed without paying the filing fee. The court warned that failure to comply would result in dismissal.
Failure to Comply
Hernandez did not submit an IFP application and did not pay the filing fee. A footnote also states that public records showed he was released from New York State Department of Corrections and Community Supervision custody on May 3, 2023, and that he had not notified the court of a change of address or contacted the court further.
Ruling
Judge Laura Taylor Swain dismissed the petition without prejudice. The court also certified that any appeal would not be taken in good faith and denied IFP status for purposes of an appeal. The Clerk of Court was directed to enter judgment.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.