                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                             No. 96-40088


                         WILLIE RAY MCDONALD,

                                                Plaintiff-Appellant,


                                VERSUS


            J. STEWARD, Library Supervisor, Michael Unit;
                          DIRECTOR TDCJ-ID,

                                                Defendants-Appellees.




             Appeal from the United States District Court
                   for the Eastern District of Texas
                           January 2, 1998


Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL*, District
Judge.

DeMOSS, Circuit Judge:

       Willie Ray McDonald ("McDonald"), a Texas inmate, filed this

42 U.S.C. § 1983 action against Officer James Steward ("Steward"),

a prison supervisor, alleging that Steward intentionally denied

McDonald access to the prison law library in retaliation for a

lawsuit McDonald helped file against the personnel of the prison

mail room.     After a bench trial, the magistrate judge entered

judgment in Steward’s favor. McDonald appeals. The main issue for


   *
          District Judge of the Southern District of Texas, sitting
by designation.
decision is whether McDonald waived his right to a jury trial by

consenting to the jurisdiction of the magistrate judge, and by

participating in the bench trial without objection.           We also must

decide whether the magistrate judge erred in excluding the trial

testimony   of   one   of   McDonald’s   named   witnesses.    Finding   no

reversible error, we affirm the judgment of the magistrate judge.1



                                    I.

     McDonald is an inmate of the Texas Department of Criminal

Justice, Institutional Division, and was housed at the “Michael

Unit” at the time this action arose.             At that facility, a law

library was made available to the prison population.              To gain

access to the library, prisoners were required to complete a

request slip, providing a name, identification number, work hours,

school hours, and days off.       The completed request slip was then

submitted to Steward, the prison law library supervisor, who

scheduled the prisoners for library time.            By his own account,

     1
          On appeal, McDonald also complains that (1) the
magistrate judge erred in construing his denial of access claim
also as a claim for retaliation, (2) the magistrate judge did not
have jurisdiction or authority to rule on his motion for summary
judgment, (3) the magistrate judge erred in denying his motion for
summary judgment, (4) Track Two of the Civil Justice Expense and
Delay Reduction Plan for the United States District Court for the
Eastern District of Texas is unconstitutional, (5) the magistrate
judge tampered with evidence during the trial, (6) the magistrate
judge abused her discretion by ordering McDonald and other
witnesses to wear leg irons during the bench trial, (7) the
magistrate judge erred in failing to grant his motion for recusal,
and (8) the magistrate judge erred in granting qualified immunity
to Steward. We have considered these arguments and do not find
them persuasive.

                                     2
McDonald used the law library about three times a week and provided

legal assistance to fellow inmates.

       While incarcerated at the Michael Unit, McDonald worked on

“Medical Utility Squad No. 3.”         This work detail was comprised of

prisoners with medical problems who could perform only light tasks.

Officially, members of the squad had designated work hours.               In

practice, they did not work regular hours because they were seldom

called to duty.

       Several times in August and September, 1994, McDonald was

denied access to the prison law library.           McDonald, accustomed to

free       and   regular   access,   filed   grievances   with   the   prison

administration. Through that process, McDonald learned that he was

denied access to the law library because he had failed to list his

work hours on several of his library request slips.          He was advised

that his official work hours were 10:30 p.m. to 6:00 a.m.               From

then on, McDonald, by his own admission, experienced no further

difficulties in gaining access to the law library.

       In June 1995, McDonald filed this pro se 42 U.S.C. § 1983

action, alleging that Steward had willfully and intentionally

denied him access to the law library on several occasions between

August 12 and September 12, 1994.2           McDonald alleged that Steward

had been dating one of the workers at the prison mailroom, and had

       2
          The exact nature of McDonald’s 42 U.S.C. § 1983 claim is
somewhat unclear. In her memorandum opinion, the magistrate judge
considered both a denial-of-access-to-courts claim and a claim for
unlawful retaliation. Apparently, the magistrate judge construed
McDonald’s § 1983 claim as comprising both causes of action. We
find no error in that construction, and for purposes of this appeal
construe McDonald’s § 1983 claim in like fashion.

                                        3
denied him access in retaliation for a lawsuit McDonald helped file

against     the   mailroom       personnel.3      An      evidentiary        hearing

subsequently was conducted pursuant to Spears v. McCotter, 766 F.2d

179 (5th Cir. 1985), in which the magistrate judge ordered Steward

to answer McDonald’s complaint.              At the close of the hearing,

McDonald and Steward signed 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 matter
            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.

McDonald’s case was then referred to the magistrate judge by order

of the district court.

      Shortly     after,       the   magistrate   judge     entered     an    order

scheduling the case for a bench trial.             McDonald objected.          In a

written motion filed the day before trial, McDonald moved the

magistrate judge to recuse herself from the case based in part on

her refusal to grant him a jury trial.            For reasons not contained

in the record, the magistrate judge did not address McDonald’s

motion prior to trial.          Strangely, this apparent oversight was not

challenged by McDonald. On the day of trial, McDonald made several


      3
          Steward also sued the Texas Department of Criminal
Justice, Institutional Division (TDCJ-ID), apparently alleging that
it allowed Steward to violate TDCJ-ID rules. The magistrate judge
found this claim barred by the doctrine of sovereign immunity.
McDonald does not challenge this ruling on appeal.

                                         4
pretrial objections, but did not reassert his motion for recusal.45

Similarly, McDonald lodged numerous objections at trial, but never

objected to the bench trial itself.

     In a subsequent memorandum opinion, the magistrate judge

denied McDonald’s Section 1983 claims.    The magistrate judge found

that McDonald was not wrongfully denied access to the law library.

The magistrate judge also held that McDonald had not proven that

Steward had retaliated against him.      In closing, the magistrate

judge ordered “that any and all motions which may be pending in

this lawsuit, by either party, are hereby denied.” (emphasis

omitted).6



                               II.

     On appeal, McDonald complains that he was deprived of his

constitutional right to a jury trial because he never consented to

a bench trial.   McDonald directs our attention to his original

complaint, in which he plainly demanded a jury trial.       He also


     4
          McDonald complained that the state failed to respond to
his discovery requests. The magistrate judge denied this motion,
explaining that McDonald’s case was proceeding under “Track Two” of
the Civil Justice Expense and Delay Reduction Plan of the Eastern
District of Texas, which allows for disclosure only.

  Next, McDonald alleged that the state had amended its witness
list after the deadline for doing so.       The magistrate judge
overruled this objection because the additional witnesses named by
the state had been named on McDonald’s witness list.      Finally,
McDonald sought permission to introduce the prison mail log as
evidence. The magistrate judge denied this request, finding the
mail log irrelevant to McDonald’s claims.
    6
          We presume that the magistrate judge’s blanket denial of
all pending motions included McDonald’s motion for recusal.

                                5
contends that he repeated his desire for jury trial at the Spears

hearing.     Steward responds by arguing that McDonald waived his

right to a jury trial at both the Spears hearing and at trial.         We

find that McDonald did not waive his right to a jury trial, and was

mistakenly denied this right.

     The right to a jury trial may be waived in civil cases.

Rideau v. Parkem Indus. Serv., Inc., 917 F.2d 892, 896 (5th Cir.

1990)    (citing   Country   (Social)   Club   of   Savannah,   Inc.   v.

Sutherland, 411 F.2d 599, 600 (5th Cir. 1969)).          Waiver of the

right, while often seen in an express statement or stipulation, may

also be inferred from a party’s conduct. See Casperone v. Landmark

Oil & Gas Corp., 819 F.2d 112, 116 (5th Cir. 1987) (failure to

appear at trial may constitute implied waiver of right to jury

trial); Southland Reship, Inc. v. Flegel, 534 F.2d 639, 644 (5th

Cir. 1976) (implied waiver of right to jury trial resulting from

failure to object at consolidated hearing on preliminary and

permanent injunctions); Bass v. Hoagland, 172 F.2d 205, 209 (5th

Cir.) (observing in dicta that “the right to jury trial . . . may

be waived . . . by mere acquiescence, when the party or his counsel

is present and not objecting”), cert. denied, 338 U.S. 816 (1949).

Nevertheless, we must be mindful that “[m]aintenance 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.”     Bowles v. Bennett, 629 F.2d 1092, 1095 (5th Cir. 1980)

(quoting Dimick v. Schiedt, 293 U.S. 474, 486 (1935)).             Thus,


                                   6
courts   should   "indulge    every       reasonable   presumption   against

waiver.”   McAfee v. U.P. Martin, 63 F.3d 436, 437 (5th Cir. 1995)

(quoting Bowles, 629 F.2d at 1095)).         Waiver should not be found in

a "doubtful situation.”      Id.

     Here, McDonald requested a jury trial in his initial complaint

and was entitled to rely on that demand.          Steward, however, argues

that McDonald later waived his right to a jury trial at the Spears

hearing when he “consented to allow the United States Magistrate

Judge to enter final judgment in this case.”           Steward’s argument is

without merit.

     At the Spears hearing, which was captured on videotape, the

following colloquy occurred between McDonald and the magistrate

judge:

           The Court:     Right now your case is assigned
           to me to hold this hearing today to get an
           understanding of the facts. If you have no
           objection I can remain as the judge on the
           case through any trial we might have and the
           final judgment. Do you have any objection to
           me remaining as the judge on your case?

           McDonald:      Well, I’d rather have the judge
           make the final ruling.

           The Court:        I am a judge.

           McDonald:      Are you judge?          I thought you
           was the magistrate.

           The Court:     Well I am a magistrate judge.
           I am a judge of the federal court.

           McDonald:         [short unintellible utterance]

           The Court:     I mean, but, its up to you.           I
           mean, do you have a . . . ?

           McDonald:         I wanted a jury to handle . . .
           .

                                      7
            The Court:     I can give you a jury trial.
            That’s . . . .

            McDonald:      [short      unintelligible
            utterance] I just wanted a jury trial on the
            matter, you know?

            The Court:     Well, so, do you have an
            objection to me presiding at any jury trial?

            McDonald:       No   m’am,   I   don’t     have    no
            objection.

            The Court:     Okay. Warden Caskey has a form
            there then if you’ll sign it to confirm that
            you have no objection to my remaining as the
            judge on your case.

            McDonald:       Yes ma’am.

McDonald and Steward then signed the written consent, as described

above, authorizing the magistrate judge to conduct all further

proceedings in the case.

     On these facts, it is evident that at the Spears hearing

McDonald consented to the magistrate judge presiding over a jury

trial, not a bench trial.    Steward is incorrect in suggesting that

McDonald, by consenting to the authority of the magistrate judge,

waived his jury trial right.     Mere consent to the jurisdiction of

a magistrate judge is not tantamount to an express waiver of the

right to a jury trial.

     Steward contends, however, that “[McDonald] made no objection

at the bench trial on January 3, 1996, waiving any such error for

appellate    purposes.”     Essentially,     Steward    is    arguing   that

McDonald’s failure to voice any opposition at trial amounted to an

implied waiver of his right to a jury trial.




                                   8
     Steward’s argument aptly recognizes that a party may waive its

right to a jury trial by “mere acquiescence,” Bass, 172 F.2d at

209, and that participation in a bench trial without objection may,

under certain circumstances, constitute a waiver of the right to a

jury trial.   Casperone, 819 F.2d at 116.   Steward is also correct

in observing that McDonald failed to assert his right to a jury

trial during the bench trial.    Normally, such failure might well

result in a waiver of the right.

     Here, however, McDonald made known his desire for a jury trial

in his complaint and at the Spears hearing, and did so without

equivocation or ambiguity.   Indeed, McDonald made clear his desire

shortly before trial by expressly objecting to the bench trial in

his motion for recusal.   Mistakenly, the magistrate judge allowed

the trial to proceed without addressing McDonald’s motion.    Under

these circumstances, we cannot hold McDonald responsible for the

magistrate judge’s oversight.   We conclude that McDonald, who was

not represented by counsel, adequately preserved his right to a

jury trial.



                                III.

     If this were the end of our inquiry, we would be required to

remand this action for a trial by jury.   However, it is settled law

in this Circuit that “even if a party is 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.


                                   9
Masland & Sons, Inc., 607 F.2d 138, 144 (5th Cir. 1979)).                          The

standard for determining whether evidence is sufficient to go to a

jury was explained in Boeing v. Shipman, 411 F.2d 365, 374 (5th

Cir. 1969) (en banc).       There, we held that a motion for a directed

verdict should be granted “[i]f the 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.”     Id.    “A mere scintilla of evidence is insufficient to

present a question to the jury."           Id.    Applying these principles to

the present case, we must determine whether McDonald’s denial of

access claim and retaliation claim could have withstood a motion

for directed verdict. We look first to McDonald’s denial of access

claim.



                                          A.

     Prisoners have a constitutional right of meaningful access to

the courts through adequate law libraries or assistance from

legally trained personnel.          DeGrate v. Godwin, 84 F.3d 768, 768-69

(5th Cir. 1996) (quoting Bounds v. Smith, 430 U.S. 817, 828

(1977)).    Nevertheless, this constitutional guarantee does not

afford   prisoners     unlimited       access     to    prison    law   libraries.

Limitations    may    be   placed    on    library      access   so   long    as   the

regulations    are    “reasonably      related     to    legitimate     penological

interests.”    Lewis v. Casey, 116 S. Ct. 2174, 2185 (1996) (quoting

Turner v. Safley, 482 U.S. 78, 89 (1987)); see also Eason v.

Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994) (right of meaningful access


                                          10
to   courts        may    be   narrowed      under   certain      circumstances).

Additionally, before a prisoner may prevail on a claim that his

constitutional right of access to the courts was violated, he must

demonstrate “that his position as a litigant was prejudiced by his

denial of access to the courts.”               Eason, 73 F.3d at 1328 (citing

Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993)).

         At trial, McDonald attempted to show that Steward deliberately

denied him access to the law library, which prejudiced his rights

in other pending cases.7          However, the bulk of evidence presented

at trial refuted his claim.                  The record showed that on the

occasions when McDonald was denied library time, he had failed to

include      his   work   hours   on   his     request   slips.     The   evidence

demonstrated that once McDonald ascertained his work hours, and

began placing them on his request slips, he was not denied access

to the law library.            There was no evidence presented at trial

showing that Steward denied McDonald access to the law library

based on improper motives. To the contrary, the record showed that

McDonald was granted library access on two occasions in August

1994, but refused to attend one of the sessions.8

     7
          McDonald presented evidence that on several occasions in
August and September, 1994, he submitted request slips to Steward
but was not granted library time. He also testified that prior to
this period of time he enjoyed access to the law library on a
regular basis. This is about the only evidence offered at trial
that supports McDonald’s claim.
         8
          Likewise, McDonald presented insufficient evidence at
trial to demonstrate that McDonald suffered prejudice from being
denied access to the law library. McDonald testified that he was
forced to dismiss without prejudice several cases due to
insufficient library time. But McDonald admitted that he never
attempted to refile these actions. He further conceded that he

                                          11
     In sum, there was insufficient evidence presented at trial

from which a reasonable jury could      conclude that McDonald was

wrongfully denied access to the prison law library.9   Accordingly,

McDonald’s denial of access claim would not have withstood a motion

for a directed verdict.   The failure to grant McDonald a jury trial

on this claim was harmless error.



                                 B.

     We next must decide whether sufficient evidence was presented

at trial to allow a jury to decide McDonald’s claim that Steward

retaliated against McDonald for helping another inmate file a

lawsuit against the mailroom.    It is well established that prison

officials may not retaliate against an inmate because that inmate

exercised his right of access to the courts.     Woods v. Smith, 60

F.3d 1161, 1164 (5th Cir. 1995), cert. denied, 116 S. Ct. 800

(1996).   To prevail on a claim of retaliation, a prisoner must

establish (1) a specific constitutional right, (2) the defendant’s

intent to retaliate against the prisoner for his or her exercise of

that right, (3) a retaliatory adverse act, and (4) causation.

Causation requires a showing that “but for the retaliatory motive

the complained of    incident . . . would not have occurred.”

Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (quoting


managed to file two new actions during the months he was allegedly
denied access to the library.
     9
          Additionally, there is nothing in the record that would
lead us to believe that the law library policy of requiring inmates
to state their work hours on library slips is an unreasonable
regulation.

                                 12
Woods, 60 F.3d at 1166), cert. denied, ___ S. Ct. ____, 66 U.S.L.W.

3178 (U.S. Dec. 1, 1997) (No. 97-403).

     Here, McDonald failed to adduce any evidence that Steward

acted with retaliatory intent.     Consequently, McDonald failed to

establish the second and fourth elements of his retaliation claim.

Accordingly, we find that McDonald’s retaliation claim would not

have survived a motion for a directed verdict.          The magistrate

judge’s failure to grant McDonald a jury trial on this claim is

harmless error.



                                 IV.

     The final question we must decide is whether the magistrate

judge abused her discretion in refusing to allow Gregorio Sanchez,

Jr. (“Sanchez”), a fellow inmate, to testify for McDonald at trial.

The magistrate judge excluded Sanchez’s testimony as cumulative.

McDonald   argues   that   Sanchez’s   proposed    testimony   was   not

cumulative because no other witness could testify to the alleged

conspiracy between Betty L. Calk (“Calk”), a mailroom clerk, and

Steward, to deny McDonald access to the law library.

     We review a district court's ruling to exclude evidence for an

abuse of discretion.   Guillory v. Domtar Indus. Inc., 95 F.3d 1320,

1329 (5th Cir. 1996) (citations omitted).         However, we "will not

disturb an evidentiary ruling, albeit an erroneous one, unless it

affects a substantial right of the complaining party."         Polythane

Sys. Inc. v. Marina Ventures Int'l, Ltd., 993      F.2d 1201, 1208 (5th

Cir. 1993) (citations omitted), cert. denied, 510 U.S. 1116 (1994).


                                  13
The burden of proving substantial prejudice lies with the party

asserting error.        Federal Deposit Ins. Corp. v. Mijalis, 15 F.3d

1314, 1319 (5th Cir. 1994).         Having reviewed the record in this

case,    it   appears    that   Sanchez’s   proposed   testimony   was   not

cumulative.      However, we do not reverse the magistrate judge

because McDonald has failed to demonstrate that the exclusion of

Sanchez’s testimony substantially affected his rights.

     In assigning error to the magistrate judge, McDonald relies

exclusively on an affidavit in which Sanchez claimed to have heard

Calk tell Steward “that as long as he keeps Willie Ray McDonald out

of the Law Library that they will not have any trouble.”10          In that

affidavit, Sanchez also claimed to have “evidence in the form of

grievances and other documentary evidence to show that James

Stewart denies access to Court to Plaintiff, me and other inmates

who file Grievances, Law Suits and other legal claims against TDCJ-

ID employees.” McDonald’s reliance on Sanchez’s affidavit is fatal

to his cause of action.

     The portion of Sanchez’s affidavit regarding Calk’s alleged

statement to Steward is inadmissible hearsay.          Thus, Sanchez could

not have testified to this statement at trial.          Furthermore, even

if Sanchez were allowed to testify to the alleged statement, that

one remark does not constitute a sufficient factual basis for

finding an unlawful conspiracy between Steward and the prison

mailroom. While Sanchez claimed to have other documentary evidence


    10
          McDonald submitted Sanchez’s affidavit to the magistrate
judge prior to trial.

                                      14
of   Steward’s   alleged   wrongdoing,   he   failed   to   identify   that

evidence with any specificity. Also missing is an explanation from

McDonald as to why he did not offer Sanchez’s evidence at trial.

      Accordingly, viewing Sanchez’s proposed testimony in light of

the whole record, we hold that McDonald has failed to show that his

rights were substantially affected by its exclusion.             Thus, we

cannot ascribe reversible error to the magistrate judge’s ruling.



                                   V.

      For the foregoing reasons, the judgment of the magistrate

judge is AFFIRMED.




                                   15
