Phelps v. McCarthy
- Laura Swain
- 1:24-cv-02381
- U.S. District Court · Southern District of New York
- 4
In Phelps v. McCarthy, Judge Swain ordered Darryl Phelps to pay the $5 fee or submit an application to proceed without prepaying fees.
Darryl Phelps must either pay the $5 filing fee or submit a signed application to proceed without prepaying fees within 30 days. The case will be dismissed if he does not comply, and no summons will issue unless the case proceeds under the court’s procedures.
What happened
In Phelps v. McCarthy, Darryl Phelps filed a petition for a writ of habeas corpus without paying the $5 filing fee or submitting an application to proceed without prepaying fees. He was representing himself.
The court gave Phelps 30 days from March 29, 2024, to pay the fee or submit a signed application. The court said no summons would be issued at that time and warned that the action would be dismissed if he did not comply.
Judge Laura Taylor Swain also certified that an appeal from the order would not be taken in good faith and denied permission to appeal without prepaying fees. The order did not decide the substance of Phelps’s habeas petition.
The detailed version
- Phelps v. McCarthy · No. 1:24-cv-02381
- Laura Swain
- Mar. 29, 2024
Background
Darryl Phelps filed a petition for a writ of habeas corpus against Superintendent K. McCarthy. The opinion states that Phelps was proceeding without a lawyer. He submitted the petition without paying the $5 filing fee and without an application to proceed without prepaying fees, commonly called an IFP application.
Order
The court ordered Phelps, within 30 days of the order, to do one of two things: pay the $5 filing fee or complete and submit the attached IFP application. The application had to include the docket number, 24-CV-2381 (LTS). The court explained that, if it granted the application, Phelps could proceed without prepaying fees.
The court directed that no summons be issued at that time. If Phelps complied with the order, the case would be processed under the Clerk’s Office procedures. If he failed to comply within the permitted time, the action would be dismissed.
Appeal-fee ruling and effect
The court certified under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. It therefore denied IFP status for purposes of an appeal. The order addressed filing requirements and did not decide the merits of Phelps’s habeas petition.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.