                  REVISED NOVEMBER 3, 2011
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                         September 22, 2011
                                     No. 10-40606
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RUSSELL BLAINE KISER, JR.,

                                                  Plaintiff-Appellant

v.

MARK DEARING; WILLIAM SEXTON; JOHNATHAN S. HYATT; HEATH
STRANGE; ROBERT L. NASH; CODY B. BARBER; WILLIAM D. JOCK;
REGINA OLIVER; MIKKEL J. ROBBINS; CHARLES CHRISTIAN,

                                                  Defendants-Appellees


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:08-CV-272


Before KING, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
       Russell Blaine Kiser, Jr., Texas prisoner # 884697, appeals the adverse
judgment against him following a bench trial in his civil rights action pursuant
to 42 U.S.C. § 1983.        Kiser contends that the magistrate judge erred by
(1) denying his right to a jury trial, (2) denying appointment of counsel,
(3) denying his request to call certain witnesses, (4) denying certain discovery

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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prior to trial, and (5) applying the wrong legal standard to his claims for
retaliation. For the following reasons, we vacate the district court’s judgment
and remand for further proceedings consistent with this opinion.
      We address first Kiser’s contention that the magistrate judge improperly
denied him a jury trial. The defendants requested a jury when they answered
Kiser’s complaint but later withdrew their request. The magistrate judge then
set a bench trial, and Kiser filed his own jury demand. The magistrate judge
concluded that Kiser’s demand was untimely pursuant to Rule 38 of Federal
Rules of Civil Procedure because it was not filed within 10 days of the
defendants’ withdrawal. Kiser later made a second jury demand, which the
magistrate judge again denied as untimely.
      The Seventh Amendment guarantees a fundamental right to a jury trial
in civil cases. U.S. CONST. AMEND. VII; Jacob v. City of New York, 315 U.S. 752,
752-53 (1942). The right must be “jealously guarded,” Jacob, 315 U.S. at 753,
and courts must indulge “every reasonable presumption against waiver,”
Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir. 1998) (internal quotation
marks and citation omitted). Although Rule 38(b) sets a time limit for filing a
demand, parties are entitled to rely on the demand of an adverse party. Johnson
v. Penrod Drilling Co., 469 F.2d 897, 903 (5th Cir. 1972). Indeed, Rule 38
expressly provides that a jury demand may be withdrawn only with the parties’
consent. FED. R. CIV. P. 38(d). Further, Rule 39 states that when a jury trial has
been demanded, the trial must be by jury unless the parties stipulate to a
nonjury trial, or the court determines that issues are not triable by a jury. FED.
R. CIV. P. 39(a).
      Kiser was entitled to rely on the defendants’ demand, and he neither
consented to the defendants’ withdrawal of their jury demand nor stipulated to
a nonjury trial. In addition, Kiser, who is unrepresented, did not unquestionably
waive his right to a jury by participating in a nonjury trial. See Jennings, 154
F.3d at 545. Further, on the facts of this case, his consent to proceed before the

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magistrate judge did not constitute a waiver. See id. Thus, the magistrate judge
erred by setting a bench trial. See Johnson, 469 F.2d at 903.
      In addition, we cannot say that the error was harmless, a question that
turns on whether the case could have withstood a motion for directed verdict, see
id. at 546, now called a motion for judgment as a matter of law, Stroik v. Ponseti,
35 F.3d 155, 157 and n.2 (5th Cir. 1994). Although the transcript of the trial is
not available, the magistrate judge’s memorandum opinion makes clear that she
weighed evidence and made factual determinations regarding the events
surrounding Kiser’s claims and whether the use of force was excessive in light
of the factors set forth in Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir.
1992). This indicates that the matter could have survived a motion for judgment
as a matter of law. See Jennings, 154 F.3d at 546. Accordingly, we vacate the
judgment and remand for a jury trial. To the extent that Kiser’s remaining
arguments are not rendered moot by the foregoing, we address them in the
interest of judicial efficiency and to provide guidance on remand.
      Kiser contends that the magistrate judge abused her discretion by denying
his request for appointment of counsel, arguing that he lacks legal training, that
he cannot obtain certain evidence because he is in prison, that he cannot
interview witnesses, that he has extremely poor vision, and that a lawyer would
be better able to understand and try his case. A court is not required to appoint
counsel for an indigent plaintiff asserting a claim under § 1983 absent
exceptional circumstances. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
Courts consider several factors in this determination, Ulmer v. Chancellor, 691
F.2d 209, 213 (5th Cir. 1982), and we will overturn a decision denying
appointment of counsel only if there is a clear abuse of discretion, Cupit, 835
F.2d at 86. Kiser has demonstrated an ability to present coherent factual and
legal arguments; he called numerous witnesses at trial; the facts surrounding
the single incident and the subsequent disciplinary hearing are relatively
straightforward; and the legal contours of excessive force claims are well-

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established and not particularly complex.          We discern no clear abuse of
discretion.
      We turn next to Kiser’s contention that he was denied the right to call
certain witnesses at trial. The magistrate judge denied Kiser’s request because
he submitted his list of witnesses beyond the scheduled deadline just before trial.
Because we remand for a new trial, this issue is moot. See Wooden v. Mo. Pac.
R.R. Co., 862 F.2d 560, 564 (5th Cir. 1989); see also Elliott v. La. Power & Light
Co., 671 F.2d 865, 869 n.5 (5th Cir. 1982) (same).
      In his next point of error, Kiser argues that he was improperly denied
certain discovery. The magistrate judge denied this request because Kiser filed
it on the eve of trial. As with the claim regarding witnesses, this issue is moot.
See Elliott, 671 F.2d at 869 n.5.
      Finally, Kiser contends that the magistrate judge applied the wrong legal
standard to his claim that prison officials fabricated a disciplinary proceeding
as a retaliatory act and destroyed and falsified evidence, which the magistrate
judge dismissed prior to trial. Kiser’s amended complaint did not allege that the
defendants retaliated against him for the exercise of a specific constitutional
right. See Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999). Instead, it
focused on his assertion that the disciplinary proceeding and destruction of
evidence were part of a coverup, impeded his ability to pursue a disciplinary
appeal and his civil action, and impeded a criminal investigation. Thus, he
abandoned any claim of retaliation. See Vela v. City of Houston, 276 F.3d 659,
679 (5th Cir. 2001); see also King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994)
(holding that an amended complaint supersedes an original complaint unless it
adopts or incorporates the original complaint by reference).
      As for his separate claims regarding falsification and destruction of
evidence in the context of the disciplinary hearing, the magistrate judge
determined that the claims were conclusional; that the only evidence allegedly
destroyed was a tape of Kiser’s own statement, which he could reproduce in an

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affidavit; and that Kiser had no constitutional right to have another person
criminally prosecuted. Kiser does not challenge these determinations and has
abandoned this issue on appeal. See Yohey v. Collins, 985 F.2d 22, 224-25 (5th
Cir. 1993).
      For the foregoing reasons, the judgment is VACATED, and this matter is
REMANDED for further proceedings consistent with this opinion.




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