McNeal v. Fleming, et al

Filing 236

ORDER signed by Chief Judge Morrison C. England, Jr on 11/30/12 DENYING 231 Request to Change Jury Trial to Bench Trial filed by Vernon Wayne McNeal. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE McNEAL,

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Plaintiff,

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No. 2:02-cv-02524-MCE-JFM

v.

ORDER

FLEMING, et al.,

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Defendants.

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Through this action, Plaintiff Vernon Wayne McNeal (“Plaintiff”), a state prisoner

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proceeding pro se, seeks redress for violations of his civil rights pursuant to 42 U.S.C.

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§ 1983. Plaintiff filed a Request to Change Jury Trial to Bench Trial on November 21,

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2012. (ECF No. 231). Defendant opposes Plaintiff’s request. (ECF No. 232.)
Federal Rule of Civil Procedure 381 provides that “the right of the trial by jury as

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declared by the Seventh Amendment to the Constitution—or as provided by federal

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statute—is preserved to the parties inviolate.” Rule 38(b) states that “[o]n any issue

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triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties

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with a written demand—which may be included in a pleading—no later than 14 days

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All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless otherwise
noted.

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after the last pleading directed to the issue is served; and (2) filing the demand in

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accordance with Rule 5(d).” Fed. R. Civ. P. 38(b).

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In this case, Defendants timely requested a jury trial in their Answer, filed

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February 2, 2004. (ECF Nos. 24.) Accordingly, Plaintiff’s Request to Change Jury Trial

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to Bench Trial is DENIED.

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IT IS SO ORDERED.

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Dated: November 30, 2012
__________________________________
MORRISON C. ENGLAND, JR
UNITED STATES DISTRICT JUDGE

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DEAC_Signature-END:

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c4d6b0d3

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