(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 r ecommendation 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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN JOHN CRAIG, 12 Petitioner, 13 14 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 16 FINDINGS AND RECOMMENDATIONS THAT THE MOTION TO CONVERT THE PETITION BE GRANTED AND THE MOTION TO CONSOLIDATE PETITIONS BE DENIED 17 ECF Nos. 3 & 5 15 Respondents. 18 19 The petitioner, Norman John Craig, is a state prisoner proceeding without counsel who 20 seeks a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Before his petition could be 21 screened, petitioner filed a motion to convert his petition into a section 1983 action. ECF No. 3. 22 Then, before I addressed that motion, he filed a motion asking to consolidate more than one 23 petition for habeas corpus. ECF No. 5. I have reviewed both motions and recommend that the 24 motion to convert be granted and the motion to consolidate be denied. 25 In his motion to convert, petitioner states his intention to bring medical deliberate 26 indifference claims against unnamed officials at the El Dorado County Jail. ECF No. 3 at 2-3. 27 Such claims should proceed in a section 1983 action. Accordingly, I recommend this motion be 28 granted. 1 1 I have reviewed the motion to consolidate but cannot understand its substance. Petitioner 2 references mail fraud, mail tampering, and a shoulder injury, but he never specifies which 3 petitions he wants to consolidate or explains why consolidation is appropriate. ECF No. 5 at 5. 4 Moreover, consolidating petitions in this case is incompatible with the earlier motion to convert 5 that petitioner has not withdrawn. Accordingly, this motion should be denied. 6 7 It is ORDERED that the Clerk of Court shall assign a district judge to rule on these findings and recommendations. 8 It is RECOMMENDED that: 9 1. Petitioner’s motion to convert, ECF No. 3, be granted. If this recommendation is 10 adopted, the Clerk of Court should be ordered to send petitioner a section 1983 complaint form 11 and the appropriate application to proceed in forma pauperis. Petitioner should be given sixty 12 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. 13 2. 14 Under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the 15 United States District Court, Eastern District of California, these findings and recommendations 16 are submitted to the United States District Court Judge who presides over this case. Within 17 fourteen days of the service of the findings and recommendations, petitioner may file written 18 objections to the findings and recommendations with the court. That document must be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding District 20 Judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 21 22 IT IS SO ORDERED. 23 Dated: 24 25 June 2, 2021 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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