(HC) Craig v. D'Agostini, et al.,

Filing 7

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 6/2/2021 ORDERING Clerk to assign a district judge to rule on these findings and recommendations and RECOMMENDING #3 Motion to Convert be granted and if this recommendation is adopted, the Clerk of Court should be ordered to send petitioner a section 1983 complaint form and the appropriate application to proceed in forma pauperis and Petitioner should be given 60 days to file his complaint and either pay the filing fee or submit a completed IFP application and #5 Motion to Consolidate should be denied. Assigned and referred to Judge John A. Mendez. Objections due within 14 days of the service of the findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NORMAN JOHN CRAIG,

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Petitioner,

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v.
JOHN D’AGOSTINI & VERN PIERSON,

Case No. 2:21-cv-00890-JDP (HC)
ORDER THAT THE CLERK OF COURT
ASSIGN A DISTRICT JUDGE TO THIS
CASE

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FINDINGS AND RECOMMENDATIONS
THAT THE MOTION TO CONVERT THE
PETITION BE GRANTED AND THE
MOTION TO CONSOLIDATE PETITIONS
BE DENIED

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ECF Nos. 3 & 5

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Respondents.

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The petitioner, Norman John Craig, is a state prisoner proceeding without counsel who

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seeks a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Before his petition could be

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screened, petitioner filed a motion to convert his petition into a section 1983 action. ECF No. 3.

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Then, before I addressed that motion, he filed a motion asking to consolidate more than one

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petition for habeas corpus. ECF No. 5. I have reviewed both motions and recommend that the

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motion to convert be granted and the motion to consolidate be denied.

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In his motion to convert, petitioner states his intention to bring medical deliberate

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indifference claims against unnamed officials at the El Dorado County Jail. ECF No. 3 at 2-3.

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Such claims should proceed in a section 1983 action. Accordingly, I recommend this motion be

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granted.
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I have reviewed the motion to consolidate but cannot understand its substance. Petitioner

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references mail fraud, mail tampering, and a shoulder injury, but he never specifies which

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petitions he wants to consolidate or explains why consolidation is appropriate. ECF No. 5 at 5.

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Moreover, consolidating petitions in this case is incompatible with the earlier motion to convert

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that petitioner has not withdrawn. Accordingly, this motion should be denied.

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It is ORDERED that the Clerk of Court shall assign a district judge to rule on these
findings and recommendations.

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It is RECOMMENDED that:

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Petitioner’s motion to convert, ECF No. 3, be granted. If this recommendation is

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adopted, the Clerk of Court should be ordered to send petitioner a section 1983 complaint form

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and the appropriate application to proceed in forma pauperis. Petitioner should be given sixty

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days to file his complaint and either pay the filing fee or submit a completed IFP application.
Petitioner’s motion to consolidate, ECF No.5, should be denied.

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2.

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Under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the

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United States District Court, Eastern District of California, these findings and recommendations

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are submitted to the United States District Court Judge who presides over this case. Within

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fourteen days of the service of the findings and recommendations, petitioner may file written

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objections to the findings and recommendations with the court. That document must be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” The presiding District

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Judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

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IT IS SO ORDERED.

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Dated:
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June 2, 2021
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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