Jones v. Patrick ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40846
Summary Calendar
STEVEN CHARLES JONES,
Plaintiff-Appellant,
versus
JOHNNY PATRICK, Correctional officer-4,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:02-CV-49
November 14, 2002
Before GARWOOD, JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
Steven Charles Jones, Texas prisoner #875172, appeals the
district court’s dismissal of his civil rights complaint without
prejudice for failure to exhaust administrative remedies. 42
U.S.C. § 1997e(a). Title 42 U.S.C. § 1997e(a) requires that a
prisoner exhaust his administrative remedies before filing a 42
U.S.C. § 1983 suit. Wendell v. Asher, 162 F.3d 887, 890-91 (5th
*
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opinion should not be published and is not precedent except under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.
Cir. 1998).
Magistrate Judge Gutherie, prior to service of process,
recommended dismissal without prejudice for failure to exhaust
administrative remedies. Jones, who has at all times proceeded pro
se, here and below, timely filed objections to the magistrate
judge’s report and recommendation, contending, inter alia, that
exhaustion should be excused because of delay in processing his
grievance, which had still not been ruled on. The district court,
Chief Judge Hanna, conducted a de novo review, adopted the findings
and conclusions of the magistrate judge, ruled that the objections
were without merit, and dismissed the case without prejudice for
failure to exhaust administrative remedies.
Without ruling on the merits of the dismissal, we sua sponte
vacate the district court’s judgment and remand with directions to
refer the matter to another district judge. The district court
here should have recused himself under 28 U.S.C. § 455(a) because
with knowledge of the relevant fact–that the District Judge is the
spouse of the Magistrate Judge–“an objective observer would have .
. . questioned [the District Judge’s] impartiality” in reviewing
the recommendation of the Magistrate Judge, and this is so even if
the District Judge’s “failure to disqualify himself was the product
of a temporary lapse of” attention on his part (as we assume it
was). See Liljeberg v. Health Services Acquisition Corp., 108
S.Ct. 2194, 2202 (1988). We note that there is nothing in the
2
record suggesting that Jones, a prisoner proceeding pro se, ever
knew or reasonably could have known of the fact requiring recusal.
Because of this and because recusal was so clearly required and
this case is on direct appeal from a dismissal prior to service of
process, we exercise our discretion in this particular case to
vacate the judgment in the interest of promoting “confidence in the
judiciary by avoiding even the appearance of impropriety,” id. at
2205, and in the hope that such action will emphasize the need to
guard against inadvertent repetition of this situation. See also
Tramonte v. Chrysler Corp., 136 F.3d 1025, 1027 n.1 (5th Cir.
1998).1
We also note that the exhaustion issue should be promptly
resolved on remand so that if dismissal is required suit can be
again filed after exhaustion and before the statute of limitations
runs.
VACATED and REMANDED
1
We do not suggest that cases of this kind where the judgment
has become final should be reopened absent some further inquiry
into actual prejudice or similar considerations. Nor do we address
cases on direct appeal where the relevant facts were or should have
been known to the appellant but the matter was not timely raised
below.
3