Rodriguez v. Collins

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 15, 2003
• Docket: 02-41040
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 15, 2003

Charles R. Fulbruge III Clerk No. 02-41040 Summary Calendar

GERMAN RODRIGUEZ,

Plaintiff-Appellant,

versus

RAMONIA COLLINS, Correctional Officer III; SHIRLENE HASTY, Sergeant; CYNTHIA CHOAT, Counselor Substitute I; CLIFTON MATTOX, Disciplinary Captain,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:02-CV-92 --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

German Rodriguez, Texas prisoner #748574, appeals from the

dismissal of his 42 U.S.C. § 1983 action as frivolous. We do not

address the merits of any of Rodriguez’s appellate contentions.

The district judge is married to the magistrate judge, and

he therefore should have recused himself under 28 U.S.C. § 455(a)

so that another judge could review the magistrate judge’s reports

and recommendations. See Jones v. Patrick, No. 02-40846 (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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-41040 -2-

Cir. Nov. 14, 2002)(unpublished; copy attached). Accordingly, we

VACATE the judgment and REMAND the case with directions that the

magistrate judge’s reports and recommendations be considered by

another district judge. See Jones at 2-3.

VACATED AND REMANDED.