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VIDAL v. GORR

United States District Court, Southern District of New York


March 20, 2003

JOSEPH VIDAL, PLAINTIFF,
v.
MELVIN GORR, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lewis A. Kaplan, District Judge

ORDER

By order dated January 6, 2003, this Court dismissed the complaint for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), with leave to file an amended complaint, on or before February 15, 2003, pleading only claims as to which plaintiff had exhausted. Plaintiff filed a notice of appeal on or about January 15, 2003. Then, on or about February 11, 2003, he submitted an amended complaint to the Pro Se Office for filing, which allegedly was received by that office on February 14, 2003. In addition, defendants have advised the Court that plaintiff has served them with interrogatories.

Defendants contend that plaintiff's filing of the amended complaint while the appeal is pending was improper and, in any case, that he may not proceed with this action here until the appeal is disposed of. To be sure, "the filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, (1982); United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996). The objective of the rule is one of promoting efficiency by preventing two courts from addressing the same matter at the same time. See, e.g., id. at 251.

Plaintiff's action in both appealing the January 6 order and filing an amended complaint arguably is inconsistent, although it may be that his purpose is to proceed here only as to exhausted claims while contesting on appeal the ruling that he may not proceed on his unexhausted claims. Similarly, it is not self evident that proceeding here necessarily would require this Court to address aspects of the case involved in the appeal. Nevertheless, the situation is so murky that the prudent course is to stay this action in all respects pending disposition of plaintiff's appeal, whether by plaintiff voluntarily dismissing it or otherwise. Accordingly, this action is stayed pending the docketing of the mandate of the Court of Appeals in this Court. In the interim, the case is placed on the suspense docket.

SO ORDERED.

20030320

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