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

suit. Wendell v. Asher,

(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 R.47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(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.,

(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,”

, 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.,

, 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