                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         March 17, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 02-40987
                         Summary Calendar



KENNETH W. LITTLETON,

                                         Plaintiff-Appellant,

versus

STACY LEE PASSMORE, Correctional Officer, Michael Unit;
BILLY W. ARNOLD, Correctional Officer, Michael Unit;
VICKIE D. ALANIZ, Correctional Officer, Michael Unit;
GENE R. MARTIN, Captain, Michael Unit,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:00-CV-600
                       --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Kenneth W. Littleton, Texas prisoner #609762, appeals the

magistrate judge’s dismissal of his 42 U.S.C. § 1983 civil rights

complaint against prison Officers Stacy Lee Passmore, Billy W.

Arnold, Vickie D. Alaniz, and Captain Gene R. Martin.

     The magistrate judge dismissed Littleton’s claims against

Captain Martin as frivolous following a Spears v. McCotter, 766

     *
        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that this opinion should not be published and is not precedent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. 02-40987
                                  -2-

F.2d 179 (5th Cir. 1985) hearing.     Littleton has abandoned his

claims against Captain Martin by failing to argue them in his

brief.    See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993).    Therefore, the magistrate judge’s judgment dismissing

Littleton’s claims against Captain Martin is AFFIRMED.

       Littleton contends that the magistrate judge erred in

conducting a bench trial and entering a final judgment in this

case because he and the remaining defendants requested a jury

trial.    In essence, Littleton contends that he was deprived of

his right to a jury trial.

       Although Littleton did not serve and file a written jury

demand as required by FED. R. CIV. P. 38(b), he was entitled to

rely on the defendants’ timely and valid jury demands.          See

Southland Reship, Inc. v. Flegel, 534 F.2d 639, 643 (5th Cir.

1976).    Further, Littleton was not represented by counsel, and

his mere participation in the bench trial without objection did

not constitute an unquestionable knowing and voluntary waiver of

his fundamental right to a jury trial.        See Jennings v.

McCormick, 154 F.3d 542, 545-46 (5th Cir. 1998).        Therefore, the

magistrate judge erred when he disregarded or overlooked the jury

demands and conducted a bench trial.        See id.   The error was not

harmless because the magistrate judge weighed the credibility of

witnesses to reach his decision and, thus, Littleton’s claims

could have survived a motion for directed verdict.         See id. at

546.    Accordingly, the magistrate judge’s judgment dismissing
                          No. 02-40987
                               -3-

Littleton’s claims against Officers Passmore, Arnold, and Alaniz

is VACATED and the case REMANDED to the district court for

further proceedings consistent with this opinion.

     Littleton’s motions for the appointment of appellate counsel

and an audio specialist are DENIED.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTIONS
     DENIED.
