               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-40510
                         Summary Calendar



     ALLEN TYRONE ROBINSON,

                                            Plaintiff-Appellant,

          versus

     F E FIGUEROA, ET AL.,

                                            Defendants,

     F.E. FIGUERO, Warden at Powledge Unit; KIRK BENNETT,
     Officer; R. WAGSTAFF, supervisor at Metal FAB Plant;
     T. NEVITT, Employee at Powledge Unit; R. THOMPSON,
     Warden Powledge Unit; T. WOMACK, Assistant Warden
     Powledge Unit,

                                            Defendants-Appellees.



          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:96-CV-230

                              May 1, 2000

Before GARWOOD, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*

     Allen Tyrone Robinson (#519307), a state prisoner, filed a

civil rights complaint in the district court alleging that prison

employees had violated his right against cruel and unusual


     *
      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this opinion should not be published and is not precedent except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.
punishment by requiring him to do work which was inconsistent

with his medical classification.       After dismissing the claims

against most of the defendants, a bench trial was held, pursuant

to Flowers v. Phelps, 956 F.2d 488 (5th Cir.), modified on other

grounds, 964 F.2d 400 (5th Cir. 1992), to consider the merits of

Robinson’s claims against defendants Womack and Wagstaff.       After

the bench trial, judgment was entered dismissing Robinson’s

complaint.   Robinson has appealed.

     Robinson contends that the magistrate judge abused his

discretion in overruling his objection to the Flowers hearing and

in refusing to permit him to try his claims before a jury.

“[T]he right to a jury trial is a fundamental right.”       McAfee v.

martin, 63 F.3d 436, 437-38 (5th Cir. 1995) (stating that courts

“should indulge every reasonable presumption against waiver” of

the right to a jury trial).   A Flowers proceeding, such as the

one conducted in Robinson’s case, is acceptable unless the

plaintiff has properly demanded a jury trial.       See Archie v.

Christian, 808 F.2d 1132, 1135 (5th Cir. 1987).       Robinson made a

proper jury demand and preserved his objection to the Flowers

hearing.   See Fed. R. Civ. P. 38(b); see also Jennings v.

McCormick, 154 F.3d 542, 544-46 (5th Cir. 1998) (magistrate judge

erred in holding bench trial because appellant had not waived or

withdrawn his jury demand); McAfee, 63 F.3d at 437-38 (discussing

presumption against waiver of right to jury trial in “doubtful

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situations”).   Accordingly, the magistrate judge erred in

overruling Robinson’s objection to the Flowers hearing.

     Once it is determined that the magistrate judge erred by

failing to conduct a jury trial, this Court must decide whether

the error was harmless.   See McDonald v. Steward, 132 F.3d 225,

230 (5th Cir. 1998).   The error is harmless if the evidence could

not have withstood a motion for a judgment as a matter of law

(“JML”).   McDonald, 132 F.3d at 230.   A JML should be granted if

the facts and inferences point so strongly and overwhelmingly in

favor of one party that the court believes that a reasonable

finder of fact could not arrive at a contrary verdict.    Id.     A

court may not weigh the credibility of witnesses in ruling on a

motion for a JML.   See Jennings, 154 F.3d at 546.   Based upon a

“preponderance of the credible testimony and evidence,” the

magistrate found that Robinson’s knee condition was not very

serious, that Robinson’s job at a prison metal fabrication plant

was consistent with his medical classification, and that Robinson

had asked to be assigned to the paint booth.

     The Flowers hearing transcript is not before us.    On the

basis of the magistrate judge’s recitation of the evidence at

that hearing, and considering the record as a whole, it is clear

that there was no evidence that Womack was at any relevant time

aware that Robinson’s job assignment was inconsistent with his

medical classification.   Consequently, Womack would have been


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entitled to a JML, and the error in denying Robinson a jury trial

was hence harmless as regards Robinson’s claims against Womack.

However, we cannot on this record reach the same conclusion as to

Robinson’s claims against Wagstaff.   It appears that in rejecting

Robinson’s claims against Wagstaff the magistrate judge

necessarily failed to credit at least some of Robinson’s

testimony.   See Jennings, 154 F.3d at 546.   As we do not conclude

that the error in denying Robinson’s right to a jury trial of his

claims against Wagstaff was harmless, the judgment must be

vacated in part and remanded for further proceedings as to

defendant Wagstaff only.

     Robinson contends that the district court erred in partially

granting the motion for summary judgment and in dismissing the

claims against defendants Thompson and Figueroa.   Robinson has

failed to show that there is a genuine issue whether Thompson and

Figueroa knew of facts from which an inference could be drawn

that Robinson’s job assignment presented a substantial risk of

serious harm to Robinson’s health.    Farmer v. Brennan, 511 U.S.

825, 837 (1994).

     Robinson argues that the district court should have

permitted him to further amend his complaint to assert additional

claims against Figueroa, who had by then answered and moved for

summary judgment.   Robinson has failed to show that the

magistrate judge abused his discretion in refusing to permit


                                 4
Robinson to amend the complaint.       See Baker v. Putnal, 75 F.3d

190, 196 (5th Cir. 1996).

     Robinson contends that the magistrate judge should have

compelled responses to his discovery requests.      Robinson has

failed to show that the magistrate judge abused his discretion in

refusing to compel discovery responses.      See Turnage v. General

Elec. Co., 953 F.2d 206, 208-09 (5th Cir. 1992).

     Robinson contends that the magistrate judge abused his

discretion by refusing to appoint counsel to represent him at the

Flowers hearing.   Robinson has failed to show that the magistrate

judge abused his discretion in holding that this case did not

present exceptional circumstances requiring appointment of

counsel.   Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

     Robinson contends that the magistrate judge abused his

discretion in refusing to issue a subpoena requiring th

attendance of a physician, identified only as Dr. John Doe, at

the Flowers, hearing.   Robinson has not shown that the witness’

testimony would have varied from the testimony of the prison

physician who was called to testify by the defendants.      No abuse

of discretion has been shown.

     Robinson contends that the magistrate judge abused his

discretion in refusing to sanction the defendants for failing to

comply with the scheduling order.      Robinson argues that the

magistrate judge’s omission shows that the magistrate judge was


                                   5
biased in favor of the defendants.    Adverse rulings alone do not

call into question a judge’s impartiality.    See Liteky v. United

States, 510 U.S. 540, 555 (1994).    Robinson does not argue that

he was prejudiced by the untimely filing of the witness list.

This Court ordinarily defers to the district court in the

management of its own docket.   See Union City Barge Line v. Union

Carbide Corp., 823 F.2d 129, 135 (5th Cir. 1987).

     Robinson argues that the magistrate judge improperly limited

the scope of his cross-examination.   Because nothing in the

record so indicates and Robinson has not provided a transcript of

the Flowers hearing, Robinson cannot show that the magistrate

judge abused his discretion by limiting the scope of his cross-

examination.

     Robinson makes no complaint on appeal as to the pretrial

dismissal, following a hearing pursuant to Spears v. McCotter,

766 F.2d 179 (5th Cir. 1985), of his claims against defendants

Zond, Branch, Crews, Luker and Simmons, nor as to the summary

judgment in favor of defendants Bennett and Nevitt.

Consequently, the judgment in favor of said seven defendants, as

well as the judgment in favor of defendants Figueroa, Thompson

and Womack is in all things AFFIRMED.

     The judgment is VACATED and the case is REMANDED as to

defendant Wagstaff, only.   In all other respects, the judgment is

AFFIRMED.


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