Fresquez v. Hickenlooper et al
ORDER. ORDERED that the Clerk of the Court is directed to remove Messrs. Padilla and Gonzalez from this action. The Clerk of the Court is directed to open a separate action pursuant to 28 U.S.C. § 2241 action for each Mr. Padilla and Mr. Gonzalez. The Clerk of the Court serve this Order on Respondent Cynthia H. Coffman, by Judge Lewis T. Babcock on 4/12/2016. (agarc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00583-GPG
LEROY DAMASIO FRESQUEZ,
ALFONSO PADILLA, and
JONATHAN R. GONZALEZ,
CYNTHIA H. COFFMAN,
JOSEPH BRADY, and
Applicants, Leroy Damasio Fresquez, Alfonso Padilla, and Jonathan R. Gonzales
are detainees at the Denver County Jail in Denver, Colorado. Originally, Mr. Fresquez
initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. ' 2241 that challenges an alleged unlawful parole hold. The Court granted Mr.
Fresquez leave to proceed pursuant to 28 U.S.C. ' 1915 and directed Respondent
Coffman to file a Preliminary Response that addresses the affirmative defenses of
timeliness and exhaustion.
On April 4, 2016, an Amended Application was filed that, besides Leroy Damasio
Fresquez, names Alfonso Padilla and Jonathan R. Gonzales as applicants and
challenges all three Applicants= alleged unlawful parole holds.
Although Rule 20 of the Federal Rules of Civil Procedure authorizes the joinder of
parties and claims that present a common question of law or fact, Fed. R. Civ. P. 21
allows the Court on its own, at any time, and on just terms to drop a party.
Rule 20(a) applies and provides as follows:
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
Even though Applicants are challenging what appear to be similar alleged unlawful
parole holds, the similarities stop there. The holds are based on separate criminal
proceedings. Applicants= claims do not arise out of the same transaction or occurrence,
nor can it be said that there is a common question of law or fact under these
circumstances relating to their individual criminal proceedings. Therefore, the Court will
direct the Clerk of the Court to remove Messrs. Padilla and Gonzalez from this action and
to open two new cases, naming Mr. Padilla in one as an applicant and Mr. Gonzalez in the
other, so that the Court may address the merits of their ' 2241 claims separately.
The Court further notes that Mr. Padilla and Mr. Gonzalez have not filed a request
to proceed pursuant to 28 U.S.C. ' 1915, or in the alternative paid the $5 filing fee. Mr.
Fresquez=s payment of the $5 filing fee pertains only to this action. Accordingly, it is
ORDERED that the Clerk of the Court is directed to remove Messrs. Padilla and
Gonzalez from this action. It is
FURTHER ORDERED that the Clerk of the Court is directed to open a separate
action pursuant to 28 U.S.C. ' 2241 action for each Mr. Padilla and Mr. Gonzalez and
place the actions on the pro se docket for a further initial review. It is
FURTHER ORDERED that the Clerk of the Court shall enter in each new, separate
action this Order and ECF No. 10. It is
FURTHER ORDERED that the Clerk of the Court serve this Order on Respondent
Cynthia H. Coffman. It is
FURTHER ORDERED that Respondent Coffman shall only respond to Applicant
Fresquez=s Application in this action and shall have an additional seven days from the
date of this Order to do so if needed.
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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