UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-40444
Summary Calendar
ALLEN TYRONE ROBINSON
Plaintiff - Appellant
VERSUS
DEVIN MUSSELMAN, Lieutenant, Coffield Unit
Defendant - Appellee
Appeal from the United States District Court
For the Eastern District of Texas
(6:94-CV-176)
April 23, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Robinson, a state prisoner, appeals the dismissal of his civil
rights suit requesting a jury trial and asserting an excessive-
force claim. We vacate and remand.
The district court’s dismissal was based upon fact-findings
made by the magistrate judge following a hearing pursuant to 28
U.S.C. § 636(b)(1)(B) and Flowers v. Phelps, 956 F.2d 488 (5th
Cir.), modified on other grounds, 964 F.2d 400 (5th Cir. 1992).
1
Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.
Robinson argues that he was denied his right to have his case tried
by a jury and we agree. He raised this issue in his objections to
the magistrate judge’s Report and Recommendation. The district
court overruled the objection in reliance upon Casperone v.
Landmark Oil and Gas Corp., 819 F.2d 112, 116 (5th Cir. 1987)
because Robinson failed to raise an objection at the Flowers
hearing. That case held that plaintiff waived a jury trial by
failing to attend the pretrial conference.
The question presented is whether Robinson’s failure to object
at the Flowers hearing resulted in a waiver of his jury demand.
Our recent decision in McAfee v. Martin, 63 F.3d 436, 437-38 (5th
Cir. 1995) shows that he did not. On this record it is clear that
the failure to object was not a knowing and voluntary waiver of the
right to jury trial. The magistrate judge described the hearing as
“an expanded evidentiary hearing pursuant to Flowers . . .” and, as
Robinson was pro se, it does not appear that he was aware of the
meaning of a Flowers hearing.
VACATED and REMANDED.
2