IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40147
Summary Calendar
LEROY ADAMS, JR.,
Plaintiff-Appellant,
versus
JOHN LAYNE; CRAIG J. BARTON; THOMAS W. WARDELL;
ROBERT HERRERA; CHRISTINA MOORE; JAMES PATE;
GARY L. JOHNSON, Director, Texas Department of
Criminal Justice, Institutional Division;
JOHN F. MCAULIFFE; CHET A. THOMAS; BRENT J. GRIGSBY;
DENNIS BLEVINS; PAUL PACE; RICKY DAVIS; GARLAND PACK,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:97-CV-1085
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September 27, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Leroy Adams, Jr., Texas prisoner # 397222, appeals the
district court’s denial of his 42 U.S.C. § 1983 civil rights
complaint. In his complaint, Adams alleged that corrections
officer John K. Layne, and other prison officials, violated his
constitutional right to be free from excessive force when Officer
Layne allegedly kicked a food slot onto his finger, resulting in
*
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that this opinion should not be published and is not precedent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. 99-40147
-2-
an injury that required stitches.
On appeal, Adams argues that the magistrate judge
impermissibly conducted a bench trial, pursuant to Flowers v.
Phelps, 956 F.2d 488, modified on other grounds, 964 F.2d 400
(5th Cir. 1992), despite Adams’ timely request for a jury trial.
Because Adams made a timely request for a jury trial, and
because it does not appear that Adams waived his right to a jury
trial, the magistrate judge erred when he disregarded or
overlooked Adams’ jury trial demand. See Fed. R. Civ. P. 38;
Jennings v. McCormick, 154 F.3d 542, 544-46 (5th Cir. 1998);
McAfee v. Martin, 63 F.3d 436, 437-38 (5th Cir. 1995). Moreover,
the error was not harmless, because the magistrate judge weighed
the credibility of witnesses to reach his decision. See
Jennings, 154 F.3d at 546.
Accordingly, the district court’s order is VACATED and the
case REMANDED to the district court for further proceedings
consistent with this opinion.
VACATE AND REMAND.