Littleton v. Passmore, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 17, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40987
Summary Calendar
KENNETH W. LITTLETON,
Plaintiff-Appellant,
versus
STACY LEE PASSMORE, Correctional Officer, Michael Unit;
BILLY W. ARNOLD, Correctional Officer, Michael Unit;
VICKIE D. ALANIZ, Correctional Officer, Michael Unit;
GENE R. MARTIN, Captain, Michael Unit,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CV-600
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Kenneth W. Littleton, Texas prisoner #609762, appeals the
magistrate judge’s dismissal of his 42 U.S.C. § 1983 civil rights
complaint against prison Officers Stacy Lee Passmore, Billy W.
Arnold, Vickie D. Alaniz, and Captain Gene R. Martin.
The magistrate judge dismissed Littleton’s claims against
Captain Martin as frivolous following a Spears v. McCotter, 766

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No. 02-40987
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F.2d 179 (5th Cir. 1985) hearing. Littleton has abandoned his
claims against Captain Martin by failing to argue them in his
brief. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). Therefore, the magistrate judge’s judgment dismissing
Littleton’s claims against Captain Martin is AFFIRMED.
Littleton contends that the magistrate judge erred in
conducting a bench trial and entering a final judgment in this
case because he and the remaining defendants requested a jury
trial. In essence, Littleton contends that he was deprived of
his right to a jury trial.
Although Littleton did not serve and file a written jury
demand as required by FED. R. CIV. P. 38(b), he was entitled to
rely on the defendants’ timely and valid jury demands. See
Southland Reship, Inc. v. Flegel, 534 F.2d 639, 643 (5th Cir.
1976). Further, Littleton was not represented by counsel, and
his mere participation in the bench trial without objection did
not constitute an unquestionable knowing and voluntary waiver of
his fundamental right to a jury trial. See Jennings v.
McCormick, 154 F.3d 542, 545-46 (5th Cir. 1998). Therefore, the
magistrate judge erred when he disregarded or overlooked the jury
demands and conducted a bench trial. See id. The error was not
harmless because the magistrate judge weighed the credibility of
witnesses to reach his decision and, thus, Littleton’s claims
could have survived a motion for directed verdict. See id. at
546. Accordingly, the magistrate judge’s judgment dismissing

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No. 02-40987
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Littleton’s claims against Officers Passmore, Arnold, and Alaniz
is VACATED and the case REMANDED to the district court for
further proceedings consistent with this opinion.
Littleton’s motions for the appointment of appellate counsel
and an audio specialist are DENIED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTIONS
DENIED.

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