               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.

                       - - - - - - - - - -
          Appeal from the United States District Court
          for the Eastern District of Texas, Texarkana
                            5:97-CV-320
                       - - - - - - - - - -
                           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


     *
      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that this opinion should not be published and is not precedent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.
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.


                                  2
     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


                                 3
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,


                                 4
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.




     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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