ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel who has filed three petitions for writ of habeas corpus. See 28 U.S.C. § 2254. Currently before the court are petitioner's motion for a preliminary injunction (Docket No. 45), petitioner's amended petition (Docket No. 46), and petitioner's motion to consolidate all three cases. Two of the cases, Case Nos. 09-1511 EFB P and 10-2604 EFB P, are before the undersigned pursuant to petitioner's consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2).
Petitioner's three cases are related but have not been consolidated. Two of the cases, Case Nos. 09-1511 EFB P and 10-2604 EFB P have been dismissed, but with leave to amend as to a single claim -- an allegation that petitioner was deprived of due process by repeated placements in segregated housing that prevented him from completing programsthat would enhance his eligibility for parole (the "segregated housing" claim). See Dckt. No. 40 at 3, 6. The court instructed petitioner that, in amending that claim, he must identify the specific parole denial(s) he wished to challenge, state what findings or recommendations the BPH made that underly his claim of constitutional violation, and explain how the alleged constitutional violation impacts the duration of his confinement. Id. The court further instructed petitioner that if he wished to challenge the same instance of parole denial in those two cases, he should file an amended petition only in Case No. 09-1511 EFB P. Id. at 6. The court dismissed several claims regarding petitioner's conditions of confinement as not impacting the duration of petitioner's confinement and thus not cognizable in a habeas action, without leave to amend. Id. at 4, 7.
In Case No. 09-0852 KJM EFB P, findings and recommendations were issued recommending that the district judge grant respondent's motion to dismiss petitioner's claims challenging discipline imposed on him in 2005 as untimely and not cognizable in a habeas action. Id. at 9-10. The undersigned noted that the motion to dismiss did not address petitioner's claim that he was deprived of due process when he was denied parole on March 1, 2007 because the BPH lacked some evidence of his current dangerousness (the "some evidence" claim), and thus that claim remained to be adjudicated. Id. at 9. The court instructed petitioner that, if he wished to challenge the March 1, 2007 parole denial in all three of his habeas petitions, he should so inform the court and file a motion to consolidate the cases. Id. at 6. Those findings and recommendations were adopted in full on August 1, 2011, petitioner's claims regarding the validity of the November 22, 2005 rules violation report were dismissed, and respondent was granted 30 days to file a responsive pleading to the parole-denial claim. Dckt. No. 57. Respondent filed a motion to dismiss the "some evidence" claim on August 3, 2011, and petitioner has been granted an extension of time to file an opposition to that motion.
II. The Amended Petition and Motion to Consolidate
On March 23, 2011, petitioner filed an amended petition in Case No. 09-0852 KJM EFB P containing both the "segregated housing" and "some evidence" claims, which had previously been separately brought as described above. He did not filed amended petitions in Case Nos. 09-1511 EFB P and 10-2604 EFB P. Accordingly, on April 19, 2011 the court ordered petitioner to either move to consolidate the three cases or show cause why Case Nos. 09-1511 EFB P and 10-2604 EFB P should not be dismissed for failure to file an amended petition within the time period provided by the court in its orders of September 14, 2010 (in Case No. 09-1511 EFB P) and January 20, 2011 (in Case No. 10-2604 EFB P). Petitioner's May 23, 2011 motion to consolidate followed.
As the court informed petitioner in its January 20, 2011 order, consolidation of the three pending cases is appropriate only if all three challenge the same instance of parole denial, as different denials of parole must be challenged in separate habeas actions. Dckt. No. 40 at 4 (citing Rule 2(e), Rules Governing § 2254 Cases in the U.S. District Courts and Melcchionne v. Tilton, No. 1:08-cv-00116 OWW DLB HC, 2008 WL 608385 at *2 (E.D. Cal. Mar. 4, 2008)). Accordingly, the court specifically instructed petitioner that any motion to consolidate must clarify that petitioner wishes to challenge the same parole denial in each of the three cases. Id. at 5, 6. Petitioner's motion fails to so clarify. Dckt. No. 56. Instead, petitioner generally states that all three petitions "involve common questions of law and (or) fact, which are the repeated denial of due process by the CDCR, and the use of infirm and completely erroneous evaluations by the Board of Parole Hearings." Id. at 2.
The undersigned has examined the amended petition in an attempt to determine whether it challenges one or more instances in which petitioner was denied parole. The amended petition raises the following claims:
(1) That the BPH denied petitioner due process when it denied him parole on March 1, 2007 because it based its decision in part on disciplinary actions taken against petitioner in 2005 which were themselves unconstitutional (Docket No. 46 at 16-19);
(2) That the BPH denied petitioner due process when it denied him parole on March 1, 2007 because it lacked some evidence that he is currently dangerous (id. at 20-28);
(3) That he has been denied due process by being repeatedly placed in segregated housing so that he cannot participate in programs that would enhance his eligibility for parole (id. at 29-30); and
(4) That he has been denied parole in retaliation for his litigation against prison staff (id. at 31-35).
Claims (1) and (4) were not previously included in the three petitions filed by petitioner and thus were not addressed in the court's prior orders.*fn1 Claim (2) previously appeared in Case No. 09-0852 KJM EFB P (the "some evidence" claim) and has not been adjudicated, and Claim
(3) previously appeared in Case Nos. 09-1511 EFB P and 10-2604 EFB P (the "segregated housing" claim). As noted above, petitioner was given leave to amend the "segregated housing" claim with directions to identify the specific parole hearing challenged and the BPH findings that supported the claim and to explain how any alleged constitutional error impacted the duration of his confinement. Although ...