Hinton v. Moore et al

Filing 74

ORDER denying 72 Motion for Trial by Jury or District Judge. Signed by Magistrate Judge Michael T. Parker on January 25, 2018. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
HENRY HINTON, JR.

PLAINTIFF

v.

CIVIL ACTION NO. 5:16-cv-33-DCB-MTP

JANET MOORE

DEFENDANT
ORDER

THIS MATTER is before the Court on Plaintiff’s Motion for Trial by Jury or District
Judge [72]. Having carefully considered the Motion, the record, and the applicable law, the
Court finds that the Motion should be denied.
On May 2, 2016, Plaintiff, a pro se prisoner, filed this action pursuant to 42 U.S.C. §
1983, alleging that Defendant failed to provide him adequate medical care. Plaintiff did not
request a trial by jury. On May 16, 2016, the district judge referred this action to the
undersigned magistrate judge for proceedings pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P.
72. See Order [8]. On October 26, 2016, the undersigned conducted an omnibus hearing for the
combined purposes of conducting a Spears1 hearing, scheduling/case management hearing, and
discovery conference. See Omnibus Order [24].
On December 7, 2017, the undersigned conducted a pretrial conference with the parties
and entered an order, setting this action for trial/evidentiary hearing on December 19, 2017. See
Pretrial Order [66]; Notices of Pretrial Conference [45] [62]. The Court informed the parties as
follows:
At the conclusion of the trial, the undersigned will enter a written report and
recommendation setting forth the undersigned’s findings of fact and
recommendations to the District Judge. In accordance with the rules and 28 U.S.C.
1

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
1

§ 636(b)(1), any party, within fourteen days after being served a copy of the report
and recommendation, may serve and filed written objections to the report and
recommendation.
See Pretrial Order [66].
On December 19, 2017, however, the Court entered an Order [68] continuing the trial due
to a scheduling problem. That same day, the undersigned conducted a telephonic conference
during which the parties agreed to a new trial date. The Court set this action for trial on January
29, 2018, and again informed the parties that the undersigned would enter a report and
recommendation following the trial. See Order [69].
On January 22, 2018, seven days prior to the trial, Plaintiff filed the instant Motion [72]
requesting a trial by jury, or in the alternative, a trial before the district judge. Pursuant to Fed.
R. Civ. P. 38(b), a demand for a jury trial must be made “no later than 14 days after the last
pleading directed to the issue is served . . . .” The last pleading directed to the issues in this
matter was Defendant’s Answer [9], which was filed more than twenty months ago, on May 19,
2016. It is undisputed that Plaintiff failed to timely demand a jury.
However, Fed. R. Civ. P. 39(b) provides that “[i]ssues on which a jury is not properly
demanded are to be tried by the court[,] [b]ut the court may, on motion, order a jury trial on any
issue for which a jury might have been demanded.” Courts have broad discretion in determining
whether to grant Rule 39(b) motions. See Farias v. Bexar County, 925 F.2d 866, 873 (5th Cir.
1991); Swofford v. B&W, Inc., 336 F.2d 406, 408 (5th Cir. 1964) (“Under that rule the court has
a broad discretion in determining whether to relieve a party from waiver of jury trial, and its
decision will be reversed only for abuse of discretion.”). In exercising their discretion, courts
should grant jury trials “in the absence of strong and compelling reasons to the contrary.” Daniel
Int’l Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061, 1064 (5th Cir. 1990).

2

Courts utilize the following five factors to guide their consideration of a motion pursuant
to Rule 39(b):
(1) whether the case involves issues which are best tried to a jury;
(2) whether granting the motion would result in a disruption of the court’s schedule
or that of an adverse party;
(3) the degree of prejudice to the adverse party;
(4) the length of the delay in having requested a jury trial; and
(5) the reason for the movant’s tardiness in requesting a jury trial.
Daniel Int’l Corp., 916 F.2d at 1064.
Concerning the first factor, the Court finds that many of the issues in this Section 1983
case involve questions of fact, which would be appropriate for a jury. However, the vast
majority of pro se prisoner cases, such as this one, are tried to the bench without a jury in this
district. Indeed, Plaintiff has two other cases set for bench trials on the same day as this one.2
There is no jury demand in either of those two cases. This factor weighs slightly in favor of
granting the Motion [72]. The second factor, however, weighs in favor of denying the Motion.
Plaintiff’s Motion was filed after entry of the pretrial order and only one week prior to the
trial/evidentiary hearing. All arrangements have been made to begin this trial on January 29,
2018. The trial of this matter has been continued once already, and granting the Motion would
necessitate another continuance and disrupt the schedules of the Court and Defendant. Indeed,
granting the Motion would require another judge—the district judge—to preside over the trial as
this is not a consent case.

2

See Civil Action No. 5:15-cv-77-DCB-MTP; Civil Action No. 5:16-cv-14-KS-MTP.
3

The third factor also weighs in favor of denying the Motion. Defendant has prepared for
a bench trial on January 29, 2018, and an order continuing the trial for a second time and
requiring Defendant to prepare anew for a jury trial would result in prejudice. As previously
mentioned, Plaintiff has two other cases set for trials on January 29, 2018, and the parties in all
three cases have submitted one common set of exhibits for the defendants and one common set
of exhibits for the Plaintiff to be utilized in each of the three cases. Concerning the fourth factor,
the Court notes that, pursuant to Rule 38(b), the deadline for Plaintiff to demand a jury trial ran
nearly twenty (20) months ago. Additionally, as previously noted, Plaintiff waited until after the
pretrial order was entered and the trial was rescheduled to demand a jury. This factor weighs
heavily in favor of denying the Motion.
Concerning the fifth and final factor, Plaintiff points out that he is proceeding pro se and
asserts that he did not discover Rule 38(b) until long after he filed this action. The Court is
aware of the difficulties pro se litigants face. However, “[a] pro se litigant’s ‘unfamiliarity with
court proceedings does not relieve him’ of the duty to abide by procedural rules . . . .” Roberson
v. United States, 2014 WL 7149744, at *2 (S.D. Miss. Dec. 15, 2014) (citing Washington v.
Jackson State Univ., 532 F.Supp.2d 804, 809 (S.D. Miss 2006); Mikesell v. Brown, 55 Fed.
App’x. 717, at *1 n. 1 (5th Cir. 2002)). Plaintiff’s pro se status may have been a valid excuse for
a brief delay in demanding a jury but it does not provide Plaintiff an excuse for ignoring the rules
of this Court for more than twenty months.
Upon due consideration of the foregoing factors, the Court finds strong and compelling
reasons to deny Plaintiff’s request for a jury trial.
As alternative relief, Plaintiff requests a trial before the district judge. Plaintiff argues
that he “has not given his consent to have the magistrate [hear] this action.” The consent of the

4

parties is required for a magistrate judge to conduct all proceedings and enter a judgment in the
case. See 28 U.S.C. § 636(c)(1). No such consent is required, however, where the district judge
refers a prisoner’s petition challenging conditions of confinement to a magistrate judge for an
evidentiary hearing and to make findings and recommendations.
[A] judge may also designate a magistrate judge to conduct hearings, including
evidentiary hearings, and to submit to a judge of the court proposed findings of fact
and recommendations for the disposition, by a judge of the court, of any motion
excepted in subparagraph (A), of applications of posttrial relief made by individuals
convicted of criminal offenses and of prisoner petitions challenging conditions of
confinement.
28 U.S.C. § 636(b)(1)(B); see also Ford v. Estelle, 740 F.2d 374, 376-77 (5th Cir. 1984).
As previously mentioned, on May 16, 2016, the district judge referred this action to the
undersigned magistrate judge for proceedings pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P.
72. See Order [8]. Thus, Plaintiff’s lack of consent does not preclude the undersigned from
conducting the trial/evidentiary hearing. The ultimate decision-making authority, however, is
retained by the district judge. All parties will be afforded an opportunity to object to the
undersigned’s findings and recommendations, and the district judge is free to accept, reject, or
modify the undersigned’s findings and recommendations. The Court also notes that Plaintiff’s
request comes after the pretrial order was entered and only seven days before the trial. The
request also comes more than a year after the deadline for filing motions—January 16, 2017. See
Omnibus Order [24]. Accordingly, the request will be denied.
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Trial by Jury or District
Judge [72] is DENIED.
SO ORDERED this the 25th day of January, 2018.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE
5