                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS      August 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk
                           No. 04-40066
                       Conference Calendar


DIONEL DE LA CRUZ,

                                    Plaintiff-Appellant,

versus

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF TEXAS, MCALLEN
AND BROWNSVILLE DIVISIONS; US DISTRICT COURT JUDGES RICARDO
HINOJOSA AND FILEMON VELA; US MAGISTRATE JUDGES FELIX RECIO,
DORINA RAMOS, AND PETER ORWENSBY,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       USDC No. M-03-MC-74
                      --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Dionel De La Cruz has filed a motion for leave to proceed in

forma pauperis (IFP) on appeal from the district court’s order

dismissing his civil rights complaint as frivolous, denying IFP,

and reiterating its prior injunction barring De La Cruz from

filing pleadings without leave of court.     De La Cruz contends

that his civil and due process rights were violated when Judge

Vela dismissed his complaint, because, as a named defendant in

the complaint, Judge Vela should have disqualified himself.


     *
       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this opinion should not be published and is not precedent except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. 04-40066
                                -2-

     De La Cruz’s lawsuit is clearly frivolous and asserts claims

against parties which are immune from suit.   See FDIC v. Meyer,

510 U.S. 471, 475 (1994); Johnson v. Kegans, 870 F.2d 992, 995–96

(5th Cir. 1989).   The better procedure, however, would have been

for Judge Vela to have recused himself because he was a named

defendant in the proceeding.   Accordingly, we vacate the district

court’s judgment and remand with instruction to refer the matter

to another non-defendant district court judge for dismissal.

     IFP GRANTED; VACATED and REMANDED with instruction.
