Gutierrez Urban v. Department of Homeland Security

Filing 6

Order Consolidating Cases signed by Judge Rudolph T. Randa on 3/28/2016. Case consolidated with 16-C-303 as a § 2241 action; all future filings to be made in 16-C-303. Dale J. Schmidt added as respondent, Department of Homeland Security DISMISSE D. 2 Petitioner's MOTION for Leave to Proceed in forma pauperis DENIED. By 4/28/2016 Gutierrez must pay $5 filing fee and file amended § 2241 petition (in 16-C-303) using enclosed form. (cc: all counsel, via mail to Jose Gutierrez at Dodge County Detention Center)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSE RUBEN GUTIERREZ URBAN,
Petitioner,
-vs-

Case No. 16-C-303
(Consolidated with
Case No. 16-C-304)

DALE J. SCHMIDT
Dodge County Sheriff,1
Respondent.

DECISION AND ORDER
Pro se Petitioner, Jose Ruben Gutierrez Urban, who is being
detained at the Dodge County Detention Center, seeks leave to proceed in
forma pauperis (ECF No. 2) on his petition for a writ of habeas corpus
pursuant 28 U.S.C. § 2254.

He also filed a separate petition for relief

pursuant to 28 U.S.C. § 2241 and seeks leave to proceed in forma pauperis
on that action as well.
Both petitions relate to March 5, 2015, immigration proceedings
against him. Therefore, the Court consolidates the two actions. See Civil

In lieu of the U.S. Department of Homeland Security, which Gutierrez named
as Respondent, the Court has substituted Schmidt who is the proper respondent
because he has day-to-day control over Gutierrez. See Robledo-Gonzales v. Ashcroft, 342
F.3d 667, 672-73 (7th Cir. 2003.) The U.S. Department of Homeland Security is
dismissed from this action.
1

L.R. 42 (E.D. Wis.) From now on all papers must be filed and docketed
only in Case No. 16-C-303. Given the consolidation of the two actions,
Gutierrez’s motion for leave to proceed in forma pauperis in Case No. 16-C304 is denied as moot.
Gutierrez filed two different pleadings, and because they will
proceed as a single action, Gutierrez must file an amended § 2241 petition
which includes all the allegations on which he intends to proceed. A copy
of the form is enclosed.
With regard to Consolidated Case No. 16-C-303, to authorize a
litigant to proceed in forma pauperis, the Court must make two
determinations: first, whether the litigant is unable to pay the costs of
commencing the action; and second, whether the action is frivolous or
malicious. 28 U.S.C. §§ 1915(a)(1) and (e)(2). With respect to Gutierrez’s
ability to pay the $5.00 filing fee, his resident history report discloses that
he has $220.39 in his account. Thus, Gutierrez demonstrates an ability to
pay the fee for filing this action.
Therefore, Gutierrez’s motion for leave to proceed in forma pauperis
is denied. Gutierrez is advised that if he does not pay the fee by the stated
deadline, this action will be dismissed without further order of the Court.
See Civil L.R. 41(c).
-2-

NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Case Nos. 16-C-303 and 16-C-304 are CONSOLIDATED as a
§ 2241 action;
All papers must be filed and docketed only in Case No. 16-C-303;
Dodge County Sheriff Dale J. Schmidt substituted for the
Department of Homeland Security, which is DISMISSED from these
actions.
Gutierrez’s motions for leave to proceed in forma pauperis (ECF No.
2) are DENIED.
No later than April 28, 2016, Gutierrez must pay the $5.00 filing
fee and file an amended § 2241 petition.
Dated at Milwaukee, Wisconsin, this 28th day of March, 2016.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

-3-