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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-40088
WILLIE RAY MCDONALD,
Plaintiff-Appellant,
VERSUS
J. STEWARD, Library Supervisor, Michael Unit;
DIRECTOR TDCJ-ID,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
January 2, 1998
Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL*, District
Judge.
DeMOSS, Circuit Judge:
Willie Ray McDonald ("McDonald"), a Texas inmate, filed this
42 U.S.C. § 1983 action against Officer James Steward ("Steward"),
a prison supervisor, alleging that Steward intentionally denied
McDonald access to the prison law library in retaliation for a
lawsuit McDonald helped file against the personnel of the prison
mail room. After a bench trial, the magistrate judge entered
judgment in Steward's favor. McDonald appeals. The main issue for
*
District Judge of the Southern District of Texas, sitting
by designation.

decision is whether McDonald waived his right to a jury trial by
consenting to the jurisdiction of the magistrate judge, and by
participating in the bench trial without objection. We also must
decide whether the magistrate judge erred in excluding the trial
testimony of one of McDonald's named witnesses. Finding no
reversible error, we affirm the judgment of the magistrate judge.1
I.
McDonald is an inmate of the Texas Department of Criminal
Justice, Institutional Division, and was housed at the "Michael
Unit" at the time this action arose. At that facility, a law
library was made available to the prison population. To gain
access to the library, prisoners were required to complete a
request slip, providing a name, identification number, work hours,
school hours, and days off. The completed request slip was then
submitted to Steward, the prison law library supervisor, who
scheduled the prisoners for library time. By his own account,
1
On appeal, McDonald also complains that (1) the
magistrate judge erred in construing his denial of access claim
also as a claim for retaliation, (2) the magistrate judge did not
have jurisdiction or authority to rule on his motion for summary
judgment, (3) the magistrate judge erred in denying his motion for
summary judgment, (4) Track Two of the Civil Justice Expense and
Delay Reduction Plan for the United States District Court for the
Eastern District of Texas is unconstitutional, (5) the magistrate
judge tampered with evidence during the trial, (6) the magistrate
judge abused her discretion by ordering McDonald and other
witnesses to wear leg irons during the bench trial, (7) the
magistrate judge erred in failing to grant his motion for recusal,
and (8) the magistrate judge erred in granting qualified immunity
to Steward. We have considered these arguments and do not find
them persuasive.
2

McDonald used the law library about three times a week and provided
legal assistance to fellow inmates.
While incarcerated at the Michael Unit, McDonald worked on
"Medical Utility Squad No. 3." This work detail was comprised of
prisoners with medical problems who could perform only light tasks.
Officially, members of the squad had designated work hours. In
practice, they did not work regular hours because they were seldom
called to duty.
Several times in August and September, 1994, McDonald was
denied access to the prison law library. McDonald, accustomed to
free and regular access, filed grievances with the prison
administration. Through that process, McDonald learned that he was
denied access to the law library because he had failed to list his
work hours on several of his library request slips. He was advised
that his official work hours were 10:30 p.m. to 6:00 a.m. From
then on, McDonald, by his own admission, experienced no further
difficulties in gaining access to the law library.
In June 1995, McDonald filed this pro se 42 U.S.C. § 1983
action, alleging that Steward had willfully and intentionally
denied him access to the law library on several occasions between
August 12 and September 12, 1994.2 McDonald alleged that Steward
had been dating one of the workers at the prison mailroom, and had
2
The exact nature of McDonald's 42 U.S.C. § 1983 claim is
somewhat unclear. In her memorandum opinion, the magistrate judge
considered both a denial-of-access-to-courts claim and a claim for
unlawful retaliation. Apparently, the magistrate judge construed
McDonald's § 1983 claim as comprising both causes of action. We
find no error in that construction, and for purposes of this appeal
construe McDonald's § 1983 claim in like fashion.
3

denied him access in retaliation for a lawsuit McDonald helped file
against the mailroom personnel.3 An evidentiary hearing
subsequently was conducted pursuant to Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985), in which the magistrate judge ordered Steward
to answer McDonald's complaint. At the close of the hearing,
McDonald and Steward signed a written consent form, styled "Consent
to Jurisdiction by a United States Magistrate Judge," which
provided:
In accordance with the provisions of Title 28,
U.S.C. 636(c), the undersigned party or
parties to the above-captioned civil matter
hereby voluntarily consent to have United
States Magistrate Judge Judith K. Guthrie
conduct any and all further proceedings in the
case, including trial, and order the entry of
a final judgment.
McDonald's case was then referred to the magistrate judge by order
of the district court.
Shortly after, the magistrate judge entered an order
scheduling the case for a bench trial. McDonald objected. In a
written motion filed the day before trial, McDonald moved the
magistrate judge to recuse herself from the case based in part on
her refusal to grant him a jury trial. For reasons not contained
in the record, the magistrate judge did not address McDonald's
motion prior to trial. Strangely, this apparent oversight was not
challenged by McDonald. On the day of trial, McDonald made several
3
Steward also sued the Texas Department of Criminal
Justice, Institutional Division (TDCJ-ID), apparently alleging that
it allowed Steward to violate TDCJ-ID rules. The magistrate judge
found this claim barred by the doctrine of sovereign immunity.
McDonald does not challenge this ruling on appeal.
4

pretrial objections, but did not reassert his motion for recusal.45
Similarly, McDonald lodged numerous objections at trial, but never
objected to the bench trial itself.
In a subsequent memorandum opinion, the magistrate judge
denied McDonald's Section 1983 claims. The magistrate judge found
that McDonald was not wrongfully denied access to the law library.
The magistrate judge also held that McDonald had not proven that
Steward had retaliated against him. In closing, the magistrate
judge ordered "that any and all motions which may be pending in
this lawsuit, by either party, are hereby denied." (emphasis
omitted).6
II.
On appeal, McDonald complains that he was deprived of his
constitutional right to a jury trial because he never consented to
a bench trial. McDonald directs our attention to his original
complaint, in which he plainly demanded a jury trial. He also
4
McDonald complained that the state failed to respond to
his discovery requests. The magistrate judge denied this motion,
explaining that McDonald's case was proceeding under "Track Two" of
the Civil Justice Expense and Delay Reduction Plan of the Eastern
District of Texas, which allows for disclosure only.
Next, McDonald alleged that the state had amended its witness
list after the deadline for doing so. The magistrate judge
overruled this objection because the additional witnesses named by
the state had been named on McDonald's witness list. Finally,
McDonald sought permission to introduce the prison mail log as
evidence. The magistrate judge denied this request, finding the
mail log irrelevant to McDonald's claims.
6
We presume that the magistrate judge's blanket denial of
all pending motions included McDonald's motion for recusal.
5

contends that he repeated his desire for jury trial at the Spears
hearing. Steward responds by arguing that McDonald waived his
right to a jury trial at both the Spears hearing and at trial. We
find that McDonald did not waive his right to a jury trial, and was
mistakenly denied this right.
The right to a jury trial may be waived in civil cases.
Rideau v. Parkem Indus. Serv., Inc., 917 F.2d 892, 896 (5th Cir.
1990) (citing Country (Social) Club of Savannah, Inc. v.
Sutherland, 411 F.2d 599, 600 (5th Cir. 1969)). Waiver of the
right, while often seen in an express statement or stipulation, may
also be inferred from a party's conduct. See Casperone v. Landmark
Oil & Gas Corp., 819 F.2d 112, 116 (5th Cir. 1987) (failure to
appear at trial may constitute implied waiver of right to jury
trial); Southland Reship, Inc. v. Flegel, 534 F.2d 639, 644 (5th
Cir. 1976) (implied waiver of right to jury trial resulting from
failure to object at consolidated hearing on preliminary and
permanent injunctions); Bass v. Hoagland, 172 F.2d 205, 209 (5th
Cir.) (observing in dicta that "the right to jury trial . . . may
be waived . . . by mere acquiescence, when the party or his counsel
is present and not objecting"), cert. denied, 338 U.S. 816 (1949).
Nevertheless, we must be mindful that "[m]aintenance of the jury as
a fact-finding body is of such importance and occupies so firm a
place in our history and jurisprudence that any seeming curtailment
of the right to a jury trial should be scrutinized with the utmost
care." Bowles v. Bennett, 629 F.2d 1092, 1095 (5th Cir. 1980)
(quoting Dimick v. Schiedt, 293 U.S. 474, 486 (1935)). Thus,
6

courts should "indulge every reasonable presumption against
waiver." McAfee v. U.P. Martin, 63 F.3d 436, 437 (5th Cir. 1995)
(quoting Bowles, 629 F.2d at 1095)). Waiver should not be found in
a "doubtful situation." Id.
Here, McDonald requested a jury trial in his initial complaint
and was entitled to rely on that demand. Steward, however, argues
that McDonald later waived his right to a jury trial at the Spears
hearing when he "consented to allow the United States Magistrate
Judge to enter final judgment in this case." Steward's argument is
without merit.
At the Spears hearing, which was captured on videotape, the
following colloquy occurred between McDonald and the magistrate
judge:
The Court:
Right now your case is assigned
to me to hold this hearing today to get an
understanding of the facts. If you have no
objection I can remain as the judge on the
case through any trial we might have and the
final judgment. Do you have any objection to
me remaining as the judge on your case?
McDonald:
Well, I'd rather have the judge
make the final ruling.
The Court:
I am a judge.
McDonald:
Are you judge? I thought you
was the magistrate.
The Court:
Well I am a magistrate judge.
I am a judge of the federal court.
McDonald:
[short unintellible utterance]
The Court:
I mean, but, its up to you. I
mean, do you have a . . . ?
McDonald:
I wanted a jury to handle . . .
.
7

The Court:
I can give you a jury trial.
That's . . . .
McDonald:
[ s h o r t u n i n t e l l i g i b l e
utterance] I just wanted a jury trial on the
matter, you know?
The Court:
Well, so, do you have an
objection to me presiding at any jury trial?
McDonald:
No m'am, I don't have no
objection.
The Court:
Okay. Warden Caskey has a form
there then if you'll sign it to confirm that
you have no objection to my remaining as the
judge on your case.
McDonald:
Yes ma'am.
McDonald and Steward then signed the written consent, as described
above, authorizing the magistrate judge to conduct all further
proceedings in the case.
On these facts, it is evident that at the Spears hearing
McDonald consented to the magistrate judge presiding over a jury
trial, not a bench trial. Steward is incorrect in suggesting that
McDonald, by consenting to the authority of the magistrate judge,
waived his jury trial right. Mere consent to the jurisdiction of
a magistrate judge is not tantamount to an express waiver of the
right to a jury trial.
Steward contends, however, that "[McDonald] made no objection
at the bench trial on January 3, 1996, waiving any such error for
appellate purposes." Essentially, Steward is arguing that
McDonald's failure to voice any opposition at trial amounted to an
implied waiver of his right to a jury trial.
8

Steward's argument aptly recognizes that a party may waive its
right to a jury trial by "mere acquiescence," Bass, 172 F.2d at
209, and that participation in a bench trial without objection may,
under certain circumstances, constitute a waiver of the right to a
jury trial. Casperone, 819 F.2d at 116. Steward is also correct
in observing that McDonald failed to assert his right to a jury
trial during the bench trial. Normally, such failure might well
result in a waiver of the right.
Here, however, McDonald made known his desire for a jury trial
in his complaint and at the Spears hearing, and did so without
equivocation or ambiguity. Indeed, McDonald made clear his desire
shortly before trial by expressly objecting to the bench trial in
his motion for recusal. Mistakenly, the magistrate judge allowed
the trial to proceed without addressing McDonald's motion. Under
these circumstances, we cannot hold McDonald responsible for the
magistrate judge's oversight. We conclude that McDonald, who was
not represented by counsel, adequately preserved his right to a
jury trial.
III.
If this were the end of our inquiry, we would be required to
remand this action for a trial by jury. However, it is settled law
in this Circuit that "even if a party is erroneously denied a jury
trial, the error is harmless if the evidence could not have
withstood a motion for a directed verdict at trial." Lewis v.
Thigpen, 767 F.2d 252, 260 (5th Cir. 1985) (citing Cox v. C.H.
9

Masland & Sons, Inc., 607 F.2d 138, 144 (5th Cir. 1979)). The
standard for determining whether evidence is sufficient to go to a
jury was explained in Boeing v. Shipman, 411 F.2d 365, 374 (5th
Cir. 1969) (en banc). There, we held that a motion for a directed
verdict should be granted "[i]f the facts and inferences point so
strongly and overwhelmingly in favor of one party that the Court
believes that reasonable men could not arrive at a contrary
verdict." Id. "A mere scintilla of evidence is insufficient to
present a question to the jury." Id. Applying these principles to
the present case, we must determine whether McDonald's denial of
access claim and retaliation claim could have withstood a motion
for directed verdict. We look first to McDonald's denial of access
claim.
A.
Prisoners have a constitutional right of meaningful access to
the courts through adequate law libraries or assistance from
legally trained personnel. DeGrate v. Godwin, 84 F.3d 768, 768-69
(5th Cir. 1996) (quoting Bounds v. Smith, 430 U.S. 817, 828
(1977)). Nevertheless, this constitutional guarantee does not
afford prisoners unlimited access to prison law libraries.
Limitations may be placed on library access so long as the
regulations are "reasonably related to legitimate penological
interests." Lewis v. Casey, 116 S. Ct. 2174, 2185 (1996) (quoting
Turner v. Safley, 482 U.S. 78, 89 (1987)); see also Eason v.
Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994) (right of meaningful access
10

to courts may be narrowed under certain circumstances).
Additionally, before a prisoner may prevail on a claim that his
constitutional right of access to the courts was violated, he must
demonstrate "that his position as a litigant was prejudiced by his
denial of access to the courts." Eason, 73 F.3d at 1328 (citing
Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993)).
At trial, McDonald attempted to show that Steward deliberately
denied him access to the law library, which prejudiced his rights
in other pending cases.7 However, the bulk of evidence presented
at trial refuted his claim. The record showed that on the
occasions when McDonald was denied library time, he had failed to
include his work hours on his request slips. The evidence
demonstrated that once McDonald ascertained his work hours, and
began placing them on his request slips, he was not denied access
to the law library. There was no evidence presented at trial
showing that Steward denied McDonald access to the law library
based on improper motives. To the contrary, the record showed that
McDonald was granted library access on two occasions in August
1994, but refused to attend one of the sessions.8
7
McDonald presented evidence that on several occasions in
August and September, 1994, he submitted request slips to Steward
but was not granted library time. He also testified that prior to
this period of time he enjoyed access to the law library on a
regular basis. This is about the only evidence offered at trial
that supports McDonald's claim.
8
Likewise, McDonald presented insufficient evidence at
trial to demonstrate that McDonald suffered prejudice from being
denied access to the law library. McDonald testified that he was
forced to dismiss without prejudice several cases due to
insufficient library time. But McDonald admitted that he never
attempted to refile these actions. He further conceded that he
11

In sum, there was insufficient evidence presented at trial
from which a reasonable jury could conclude that McDonald was
wrongfully denied access to the prison law library.9 Accordingly,
McDonald's denial of access claim would not have withstood a motion
for a directed verdict. The failure to grant McDonald a jury trial
on this claim was harmless error.
B.
We next must decide whether sufficient evidence was presented
at trial to allow a jury to decide McDonald's claim that Steward
retaliated against McDonald for helping another inmate file a
lawsuit against the mailroom. It is well established that prison
officials may not retaliate against an inmate because that inmate
exercised his right of access to the courts. Woods v. Smith, 60
F.3d 1161, 1164 (5th Cir. 1995), cert. denied, 116 S. Ct. 800
(1996). To prevail on a claim of retaliation, a prisoner must
establish (1) a specific constitutional right, (2) the defendant's
intent to retaliate against the prisoner for his or her exercise of
that right, (3) a retaliatory adverse act, and (4) causation.
Causation requires a showing that "but for the retaliatory motive
the complained of incident . . . would not have occurred."
Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (quoting
managed to file two new actions during the months he was allegedly
denied access to the library.
9
Additionally, there is nothing in the record that would
lead us to believe that the law library policy of requiring inmates
to state their work hours on library slips is an unreasonable
regulation.
12

Woods, 60 F.3d at 1166), cert. denied, ___ S. Ct. ____, 66 U.S.L.W.
3178 (U.S. Dec. 1, 1997) (No. 97-403).
Here, McDonald failed to adduce any evidence that Steward
acted with retaliatory intent. Consequently, McDonald failed to
establish the second and fourth elements of his retaliation claim.
Accordingly, we find that McDonald's retaliation claim would not
have survived a motion for a directed verdict. The magistrate
judge's failure to grant McDonald a jury trial on this claim is
harmless error.
IV.
The final question we must decide is whether the magistrate
judge abused her discretion in refusing to allow Gregorio Sanchez,
Jr. ("Sanchez"), a fellow inmate, to testify for McDonald at trial.
The magistrate judge excluded Sanchez's testimony as cumulative.
McDonald argues that Sanchez's proposed testimony was not
cumulative because no other witness could testify to the alleged
conspiracy between Betty L. Calk ("Calk"), a mailroom clerk, and
Steward, to deny McDonald access to the law library.
We review a district court's ruling to exclude evidence for an
abuse of discretion. Guillory v. Domtar Indus. Inc., 95 F.3d 1320,
1329 (5th Cir. 1996) (citations omitted). However, we "will not
disturb an evidentiary ruling, albeit an erroneous one, unless it
affects a substantial right of the complaining party." Polythane
Sys. Inc. v. Marina Ventures Int'l, Ltd., 993 F.2d 1201, 1208 (5th
Cir. 1993) (citations omitted), cert. denied, 510 U.S. 1116 (1994).
13

The burden of proving substantial prejudice lies with the party
asserting error. Federal Deposit Ins. Corp. v. Mijalis, 15 F.3d
1314, 1319 (5th Cir. 1994). Having reviewed the record in this
case, it appears that Sanchez's proposed testimony was not
cumulative. However, we do not reverse the magistrate judge
because McDonald has failed to demonstrate that the exclusion of
Sanchez's testimony substantially affected his rights.
In assigning error to the magistrate judge, McDonald relies
exclusively on an affidavit in which Sanchez claimed to have heard
Calk tell Steward "that as long as he keeps Willie Ray McDonald out
of the Law Library that they will not have any trouble."10 In that
affidavit, Sanchez also claimed to have "evidence in the form of
grievances and other documentary evidence to show that James
Stewart denies access to Court to Plaintiff, me and other inmates
who file Grievances, Law Suits and other legal claims against TDCJ-
ID employees." McDonald's reliance on Sanchez's affidavit is fatal
to his cause of action.
The portion of Sanchez's affidavit regarding Calk's alleged
statement to Steward is inadmissible hearsay. Thus, Sanchez could
not have testified to this statement at trial. Furthermore, even
if Sanchez were allowed to testify to the alleged statement, that
one remark does not constitute a sufficient factual basis for
finding an unlawful conspiracy between Steward and the prison
mailroom. While Sanchez claimed to have other documentary evidence
10
McDonald submitted Sanchez's affidavit to the magistrate
judge prior to trial.
14

of Steward's alleged wrongdoing, he failed to identify that
evidence with any specificity. Also missing is an explanation from
McDonald as to why he did not offer Sanchez's evidence at trial.
Accordingly, viewing Sanchez's proposed testimony in light of
the whole record, we hold that McDonald has failed to show that his
rights were substantially affected by its exclusion. Thus, we
cannot ascribe reversible error to the magistrate judge's ruling.
V.
For the foregoing reasons, the judgment of the magistrate
judge is AFFIRMED.
15