                   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trial had not been withdrawn or waived, the magistrate judge erred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]


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       Spears 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


                                     6
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


                                       8
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


                                          9
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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