                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS           May 5, 2003
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 02-41402
                           Summary Calendar



FRANK HENRY LEE,

                                      Plaintiff-Appellant,

versus

GARY HENNIGAN, Sheriff, Tyler County Texas;
TYLER COUNTY TEXAS; UNIDENTIFIED,
Safety Officer, Jail Administrator;
UNIDENTIFIED, Safety Officer, Chief Jailer,

                                      Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 9:02-CV-77
                       --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Proceeding pro se, Frank Henry Lee, Texas prisoner #1010741,

appeals the dismissal with prejudice of his suit brought under 42

U.S.C. § 1983.    He argues, inter alia, that the magistrate judge

abused her discretion by holding an evidentiary hearing under

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).



     *
        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that this opinion should not be published and is not precedent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. 02-41402
                                  -2-

     Magistrate Judge Guthrie recommended dismissing Lee’s case

after holding a Spears hearing.     Lee filed timely objections to

her recommendation.   The district court, Chief Judge Hannah,

conducted a de novo review, adopted the findings and conclusions

of the magistrate judge, ruled that Lee’s objections were without

merit, and dismissed the case with prejudice as frivolous.

     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 judge here should have recused himself under 28 U.S.C.

§ 455(a) because he is the spouse of the Magistrate Judge, and

thus an objective observer would have questioned his impartiality

in reviewing her recommendations.

     There is nothing in the record to suggest that Lee, 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, we exercise our discretion to

vacate the judgment in the interest of promoting confidence in

the judiciary by avoiding even the appearance of impropriety.1

     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 that matter was
not timely raised below.
