Golden v. Castro

38 F. App'x 466

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 19, 2002
• Docket: No. 01-17536; D.C. No. CV-01-01301-DFL
• Status: Published

Opinion

MEMORANDUM

**

Theotis Golden, a California state prisoner, appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 280 F.3d 1238, 1244-45 (9th Cir.2002). We affirm in part, and vacate and remand in part.

Our intervening decision in Wyatt dictates that we vacate and remand because it is not clear on the face of the complaint and exhibits thereto that Golden failed to exhaust. See id. (holding that failure to exhaust is an affirmative defense where the face of the complaint and exhibits thereto do not establish a failure to exhaust).

The magistrate judge did not abuse his discretion by not recusing himself because Golden faded to present evidence of bias, prejudice, or interest. See Liteky v. United States, 510 U.S. 540, 551-52, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).

Golden’s remaining contentions lack merit.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.