The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Before the Court is Plaintiff's motion (Docket No. 80) seeking entry of judgment under Federal Rules of Civil Procedure 11, 54(b), 54(c), 54(o) [sic] and 55. Further, Plaintiff seeks sanctions under Rule 54(h) [sic] and 11 as well as recusal of the undersigned. For the reasons stated below, Plaintiff's motion is denied in its entirety.
In its initial Decision and Order (Docket No. 5), filed on July 18, 2002, the Court reviewed Plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a) and dismissed his Equal Protection claims, dismissed his Eighth Amendment and due process claims pertaining to a three-day water deprivation order, dismissed his denial of parole release and time allowance claims, dismissed his conspiracy claim under 28 U.S.C. § 1985, and dismissed his due process claim concerning the January 11, 1999, Elmira Correctional Facility disciplinary hearing. The Court allowed Plaintiff's due process claims pertaining to the February 25, 1999, and March 2001 disciplinary hearings to proceed.
On April 27, 2007, the Court granted summary judgment to Defendants. Plaintiff appealed, and on September 10, 2008, the United States Court of Appeals for the Second Circuit reversed the Court's decision in part, writing,
As the Appellees admirably concede, there is a genuine issue of material fact that precludes summary judgment on the Appellant's due process claim against Correction Officer Held arising out of the March 2001 disciplinary proceeding..Overlapping disciplinary penalties may, under some circumstances, have to be aggregated for purposes of determining whether a liberty interest was violated.
Reynoso v. Selsky, 292 Fed. Appx. 120, 122, 2008 WL 4162921, 1 (2d Cir. Sept. 10, 2008). The remainder of this Court's decision was affirmed, and only the claim against Correction Officer Held was remanded for further consideration. Id. at 5. The Court held a video conference with Plaintiff and defense counsel on March 30, 2009, where settlement was discussed, and subsequently issued a new scheduling order, requiring, inter alia, that motions be due by June 30, 2009. That due date was extended by the Court on May 7, July 13, August 3, September 30 and October 29, 2009, all at Defendants' request.
On December 7, 2009, Plaintiff filed a notice of interlocutory appeal from this Court's Decision and Order (Docket No. 73) denying reconsideration of the Court's original Decision and Order (Docket No. 53) granting summary judgment to Defendants and denying Plaintiff's cross-motion for summary judgment. The appeal is still pending. On February 19, 2010, the Court entered a Letter Order (Docket No. 79) granting Defendants' request for a further extension of the motion schedule, requiring Defendant's response to Plaintiff's motion for summary judgment (Docket No. 74) not later than sixty days following the Second Circuit's decision on the interlocutory appeal, and staying consideration of Plaintiff's pending motion. On March 3, 2010, Plaintiff filed what the Clerk termed as "Plaintiff's Objections to Order re: 79, Request for Judgment Under Rule 11 and Recusal of the Judge" (Docket No. 80).
Normally, the filing of a Notice of Appeal from a final judgment automatically stays the case in the district court. New York State Nat. Organization for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir. 1989). However, as with the situation here, Congress permits, as an exception to the general rule, an immediate appeal from an interlocutory order that either grants or denies a preliminary injunction. In such case the matter does not leave the district court, but proceeds there on the merits, unless otherwise ordered. Ex parte National Enameling & Stamping Co., 201 U.S. 156, 162 (1906); Thomas v. Board of Educ., Granville Central School Dist., 607 F.2d 1043, 1047 n. 7 (2d Cir. 1979), cert. denied, 444 U.S. 1081 (1980). Further, we have held that the filing of a notice of appeal only divests the district court of jurisdiction respecting the questions raised and decided in the order that is on appeal. See Compania Espanola de Petroleos, S.A. v. Nereus Shipping, S.A., 527 F.2d 966, 972-73 (2d Cir. 1975) (settled rule depriving district court of jurisdiction during appeal inapplicable where two independent proceedings involved), cert. denied, 426 U.S. 936 (1976); 9 Moore's Federal Practice ¶ 203.11 at 3-54 (2d ed. 1989).