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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-41106
Summary Calendar
Kevin JENNINGS
Plaintiff/Appellant,
versus
James MCCORMICK, Commanding Officer III, Coffield Unit; Karl
R. BROWN, Sergeant, Coffield Unit, and Rosie M. JOHNSON,
Commanding Officer III, Coffield Unit,
Defendants/Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
September 29, 1998
Before DUHE', DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:
Kevin Jennings, a Texas inmate, filed this pro se 42 U.S.C. §
1983 action against correctional officer James McCormick alleging
that the officer violated his Eighth Amendment right to be free
from cruel and unusual punishment by subjecting him to excessive
use of force. After a bench trial, the magistrate judge entered
judgment dismissing Jennings' suit with prejudice. Jennings
appeals, contending that, because his proper demand for a jury
trial had not been withdrawn or waived, the magistrate judge erred
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in conducting a bench trial in violation of his Seventh Amendment
right to a jury trial. We vacate the district court judgment and
remand for further proceedings.
Jennings, who has not been represented or assisted by counsel
in this matter, alleges that Officer McCormick willfully and
intentionally subjected him to excessive use of force by physically
beating him without cause or justification. At a Spears1 hearing,
the magistrate determined that Jennings' complaint was not
frivolous and ordered Officer McCormick to file an answer. We have
reviewed the video tape record of the Spears hearing. At the close
of the hearing, Jennings signed, at the magistrate's request, 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 mater 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.
Any appeal of the case will lie with the United States
Court of Appeals unless otherwise noted.
Before Jennings signed the consent form, the magistrate judge
merely asked him whether he had "any objection [to her] remain[ing]
1Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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as the judge on the case, presid[ing] at the trial, and enter[ing]
the final judgment." The magistrate told Jennings that if he
signed the form she would "be the judge then on your case." The
magistrate did not explain to Jennings that he had a right to a
jury trial or that by signing the form he would be waiving that
right. The term "jury trial" was not mentioned at the Spears
hearing.
The record reveals that shortly after McCormick filed his
answer, the magistrate judge entered an order scheduling a bench
trial. Jennings made a jury demand subsequent to the court order
and within ten days after officer McCormick filed his answer. We
are satisfied therefore that Jennings made a timely and effective
jury demand under rule 38(b) of the Federal rules of Civil
Procedure. McAfee v. U.P. Martin, 63 F.3d 436 (5th Cir. 1995).
For reasons not contained in the record, the magistrate did not
address Jennings' jury demand prior to trial, although the
magistrate acted on another contemporaneously filed motion.
At trial, the magistrate judge did not inform Jennings that
the trial would be conducted without a jury or that he had waived
his right to a jury trial. The magistrate judge, without mention
of the subject of a jury trial, simply conducted a bench trial.
Jennings, who was not represented by counsel, participated in the
bench trial without expressing any objection. After the trial, the
magistrate judge rendered judgment rejecting Jennings' claim with
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prejudice.
Rule 38 of the Federal Rules of Civil Procedure, entitled
"Jury Trial of Right," in pertinent part, provides:
(a) Right Preserved. The right of trial by jury as
declared by the Seventh Amendment to the Constitution or
as given by a statute of the United States shall be
preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of any
issue triable of right by a jury by (1) serving upon the
other parties a demand therefor in writing at any time
after the commencement of the action and not later than
10 days after the service of the last pleading directed
to such issue, and (2) filing the demand as required by
Rule 5(d). Such demand may be indorsed upon a pleading
of the party.
* * *
(d) Waiver. The failure of a party to serve and file a
demand as required by this rule constitutes a waiver by
the party of trial by jury. A demand for trial by jury
made as herein provided may not be withdrawn without the
consent of the parties.
The right to jury trial is too important and the usual
procedure for its waiver is too clearly set out by the Civil Rules
for courts to find a knowing and voluntary relinquishment of the
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right in a doubtful situation. Bowles v. Bennett, 629 F.2d 1092,
1095 (5th Cir. 1980), citing and quoting Heyman v. Kline, 456 F.2d
123 (2d Cir. 1972), cert. denied, 409 U.S. 847, 93 S.Ct. 53.
"[T]he right of jury trial is fundamental, [and] courts [must]
indulge every reasonable presumption against waiver." Id., quoting
Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812
(1937). "`Maintenance 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." Id., quoting
Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301 (1935).
Applying these principles, we conclude that Jennings did not
waive his right to a jury trial, and that the magistrate judge
committed reversible constitutional error in conducting a bench
trial in disregard of that right.
Jennings' signing of the consent form did not constitute a
waiver of the jury trial of right. The language of the form does
not
unquestionably
demonstrate
a
knowing
and
voluntary
relinquishment. Nothing in the colloquy between Jennings and the
magistrate indicates such a relinquishment either. Under similar
circumstances, in McDonald v. Stewart, 132 F.2d 225, 229-30 (5th
Cir. 1998), this court concluded that an inmate's signing of an
identical consent form constituted "[m]ere consent to the
jurisdiction of a magistrate judge [and] is not tantamount to an
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express waiver of the right to a jury trial."
Jennings' timely demand for a jury effectively preserved the
right for him, unless he without doubt knowingly and voluntarily
waived or withdrew the demand thereafter. See FED.R.CIV.P. 38,
Kennedy, 301 U.S. at 393, 57 S.Ct. At 812, Dimick, 293 U.S. at 486,
55 S.Ct. at 301, Bowles, 629 F.2d at 1095. When the trial court
disregards the demand for a jury trial and conducts a bench trial
instead, the mere participation without objection of a party
unrepresented by counsel does not constitute an unquestionable
knowing and voluntary waiver of the right to a jury trial.
McDonald, 132 F.2d at 230, McAfee, 63 F.3d at 437-38, Bowles, 629
F.2d at 1094-95. Our obligation to "indulge every reasonable
presumption against waiver," Bowles, 629 F.2d at 1095 and McAfee,
63 F.3d at 437, and to not find waiver in a "doubtful situation,"
Id., requires this conclusion under the circumstances of the
present case.
When a party is represented by counsel, or is himself an
attorney, the circumstances may unquestionably indicate his knowing
and voluntary waiver of the right to a jury trial. E.g., Casperone
v. Landmark Oil & Gas Corp., 819 F.2d 112, 116 (5th Cir. 1987)
(attorney party failed to appear at pretrial conference where all
other parties waived jury trial and participated in non-jury trial
without objection until after trial) and Southland Reship, Inc., v.
Flegel, 534 F.2d 639, 644 (5th Cir. 1976) (Party represented by
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attorney failed to object at consolidated non-jury hearing on
preliminary and permanent injunctions). These decisions are
inapposite to the present case in which an inmate, without the
representation by counsel, timely and effectively demanded a jury
trial but failed to object when the magistrate disregarded or
overlooked his jury demand and conducted a bench trial instead.
Moreover, as the Supreme court observed in Dimick v. Schiedt, 293
U.S. at 485, 55 S.Ct. at 300:
[T]his court in a very special sense is charged with the
duty of construing and upholding the Constitution; and,
in the discharge of that important duty, it ever must be
alert to see that a doubtful precedent be not extended by
mere analogy to a different case if the result will be to
weaken or subvert what it conceives to be a principle of
the fundamental law of the land.
Although Mr. Jennings may have been "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.
Masland & Sons, Inc., 607 F.2d 138, 144 (5th Cir. 1979)).
Therefore, we must determine if Mr. Jennings' claim could have
survived a motion for a directed verdict.
A motion for a directed verdict should be granted "[i]f the
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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." Boeing v. Shipman, 411 F.2d 365,
374 (5th Cir. 1969) (en banc). We noted in Boeing that the
"evidence must be considered in the light and with all reasonable
inferences most favorable to the party opposed to the motion." Id.
at 375.
Mr. Jennings' complaint alleged that Mr. McCormick pulled him
down a stairway, stomped his wrist, and beat him repeatedly on the
head. We have listened to the audio tapes of the trial contained
in the record. At trial, Mr. Jennings testified that prior to the
incident sued upon, there was an altercation between Mr. Jennings
and a female officer; shortly thereafter, Officer McCormick
verbally threatened Mr. Jennings and led him to a secluded
stairwell with another Officer; in the stairwell, Officer McCormick
pulled him down the stairs, stomped on the chain of his hand cuffs,
and beat him repeatedly on his head. Mr. Jennings' testimony was
substantially corroborated by medical reports describing his
injuries from the incident, which included a broken wrist.
Officer McCormick testified that Mr. Jennings attempted to
break loose in the stairwell and that only necessary and non-
excessive force was used to subdue him. The magistrate judge, in
her memorandum opinion, "found the facts" as presented by the
defendant and dismissed Mr. Jennings' case. Consequently, it is
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evident that although Mr. Jennings' evidence did not persuade the
magistrate at the trial on the merits, it was sufficient to
withstand a motion for a directed verdict.
This Court has said that "[a] motion for directed verdict must
be acted on without weighing credibility of witnesses . . . . This
is equally true of assigning weight to testimony based on the
interest of the witness." Kridler v. Bituminous Casualty
Corporation, 409 F.2d 88, 91 (5th Cir. 1969). Thus, a directed
verdict is not properly granted when the outcome, as in this case,
is almost solely based on whether or not the witness' testimony was
creditable. Id. Moreover, "a motion for a directed verdict is
properly denied where the evidence presented allows reasonable men
in a fair exercise of their judgment to draw different
conclusions." Dace v. ACF Industries, Inc., 722 F.2d 374, 375 (8th
Cir. 1984) (citing Giordano v. Lee, 434 F.2d 1227, 1231 (8th Cir.
1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709
(1971)).
For the reasons assigned, we conclude that the appellant, who
was not represented by counsel, timely and effectively demanded a
jury trial, and did not waive his right to a jury trial by signing
the consent to a magistrate judge's jurisdiction or by
participating in the bench trial without objection. The magistrate
judge erred in disregarding or overlooking his jury trial demand
and in not granting him a jury trial; therefore, the appellant was
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wrongfully denied a trial by jury. The judgment entered by the
magistrate judge is vacated and the case is remanded for further
proceedings consistent with this opinion.
VACATED and REMANDED.
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