Monk v. Clark, et al

*Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41113
DARIN TYRONE MONK,
Plaintiff-Appellant,
versus
UNKNOWN CLARK, Sergeant, Sergeant Clark at Bowie County
Correctional Center, UNKNOWN JOHNSON, Officer Johnson at Bowie
County Correctional Center; UNIDENTIFIED UNKNOWN, Unknown Officer
at Bowie County Correctional Center, MARY CHOATE, Sheriff;
DEWAYNE CANNON, Warden at Bowie County Correctional Center,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas, Texarkana
5:97-CV-320
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May 14, 2001
Before JONES, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Darin Tyrone Monk filed a 42 U.S.C. section 1983 action in
the Eastern District of Texas, alleging that while he was
incarcerated at the Bowie County Correctional Center in
Texarkana, Texas, he was “sprayed and dragged” by several
officers and that these actions caused him to suffer temporary
blindness and breathing problems. Monk was subsequently

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transferred to a prison in Wisconsin and then to a prison in
Oklahoma, where he is presently incarcerated.
Two named defendants, Sheriff Mary Choate and Warden Dewayne
Cannon, filed answers denying any wrongdoing. Other defendants,
the alleged offending officers, were not served because Monk had
insufficient information as to their full names and addresses.
After Monk was denied a default judgment, the district court
issued an order setting a time period for Choate and Cannon to
file dispositive motions. The magistrate judge indicated that
the fact that the defendants had not filed dispositive motions,
although given time to do so, indicated that the case was not
suited for summary disposition.
The magistrate judge’s report recommended administratively
closing the case until Monk returned to Texas, because it was
impractical to continue litigation while Monk, who was proceeding
in forma pauperis, was imprisoned in a different state.
The magistrate judge found that Monk’s testimony would be
necessary at trial and the costs of transporting him back to
Texas for trial would be prohibitive. The magistrate judge
emphasized that the case was being closed without prejudice.
Monk objected to the magistrate judge’s report and
recommendation noting that his release date was not until
September 6, 2004. The district court overruled Monk’s
objections and adopted the report and recommendation of the
magistrate judge, and also tolled the statute of limitations
until Monk is released from prison and returns to Texas.

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On appeal, Monk challenges the district court’s
administrative closure as an abuse of discretion.
DISCUSSION
Although not raised by any party, this Court must initially
consider the issue of jurisdiction: whether the district court’s
administrative closure of Monk’s section 1983 suit is subject to
review. In an analogous context, district court’s orders
indefinitely staying prisoners’ section 1983 lawsuits have been
held to be appealable. In McKnight v. Blanchard, this Court
explained that orders rendering a plaintiff’s action as
effectively dead must be viewed as final and appealable, and that
“[e]ffective death should be understood to comprehend any
extended state of suspended animation.” 667 F.2d 477, 479 (5th
Cir. 1982)(quoting Hines v. D’Artois, 531 F.2d 726, 730 (5th Cir.
1976)). In the instant case, this multi-year administrative
closure places Monk’s case in an extended state of suspended
animation, and we thus conclude that this Court has jurisdiction.
See Muhammad v. Warden, Baltimore City Jail, 849 F. 3d 107, 110
(4th Cir. 1988) (finding jurisdiction in administrative closure
of section 1983 action (citing and quoting McKnight and Hines)).
In Muhammad v. Warden, the Fourth Circuit explained “[t]hat
an incarcerated litigant’s right is necessarily qualified,
however, does not mean that it can be arbitrarily denied by
dismissal or indefinite stays; the law requires a reasoned
consideration of the alternatives earlier summarized.” 849 F.2d
at 112. More specifically, the Fourth Circuit set forth other

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options that should be considered prior to the last resort of
administratively closing a case due to the fact that a plaintiff
is incarcerated in another state, such as: (1) making provisions
for the prisoner to travel to attend the trial in person; (2)
trying the case without the prisoner’s presence in the courtroom,
either on depositions or affidavits or with the aid of video; and
(3) trying the case without a jury in the state where the
prisoner is incarcerated. 849 F.2d at 111. The court listed
three factors for district courts to consider in deciding whether
to administratively close a case: 1) whether the plaintiff’s
presence will “substantially further the resolution of the case,”
as well as the above-listed alternative means of resolving the
case; 2) both the expense and the potential security risk of
transporting the prisoner and keeping him in custody for the
duration of trial; and 3) the potential prejudice resulting to
the opportunity to present plaintiff’s claim from a stay or
administrative closure. Id. at 113. Previously, this Court has
remanded a district court’s administrative closure for
reconsideration in light of Muhammad v. Warden. See Patton v.
Jefferson Correctional Center, 136 F.3d 458, 461 n.3 (5th Cir.
1998).
Thus, in the instant case, the magistrate judge properly
cited Muhammad v. Warden in making its determination. The
magistrate judge, however, simply announced that Monk’s presence
for his testimony was crucial and that transportation costs were
prohibitive. Before the “last resort” of administrative closure,

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1 Although Monk in his brief listed the various Muhammad v.
Warden options in citing that case, it is somewhat troubling that
in his reply brief he concentrates solely on his transportation
back to Texas for trial. Of course, there is no absolute right
for a prisoner to be transported and present at such a trial.
See Price v. Johnson, 334 U.S. 266, 285-86 (1948), overruled on
other grounds, McCleskey v. Zant, 499 U.S. 467 (1991). An “all
or nothing” approach by Monk will most likely garner him the
latter.
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we believe the options in Muhammad v. Warden should be explored,
such as a non-jury trial in Oklahoma, where his testimony could
be presented directly to the fact-finder, or the use of video for
a trial in Texas. Accordingly, we vacate and remand this case
for consideration of these options.1
As to the other matters raised by Monk, he has failed to
show that the district court erred in declining to order his
requested discovery, and his claims on the merits of the case are
not ripe for review.
For the above reasons, we VACATE and REMAND the district
court’s judgment for further proceedings consistent with this
opinion.

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