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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

BENNY LEWIS EDWARDS,

Plaintiff,

vs. Case No. 5:02cv341-MCR/WCS

J. COKER and J. HOLDEN,

Defendants.

 /

O R D E R

On May 9, 2005, this case was referred to me by District Judge M. Casey

Rodgers, doc. 63, after the denial of Defendants' summary judgment motion due to a

genuine dispute of material fact. Docs. 46, 47. This case had not yet been scheduled

for a bench trial, but the parties had been directed to communicate about possible trial

dates and were advised that due to "the age of this case, the evidentiary hearing should

take place no later than September 15, 2005." Doc. 64, p. 2. In response to that order,

Defendants promptly filed a demand for a jury trial. Doc. 65. This case is of the type in

which the parties have a right to a jury trial under the Seventh Amendment as Plaintiff

seeks damages to enforce a legal right. See, e.g., Curtis v. Loether, 415 U.S. 189,

193-95, 94 S.Ct. 1005, 1008, 39 L.Ed.2d 260 (1974); Waldrop v. Southern Co. Services,

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 Plaintiff's third amended complaint alleged excessive and unnecessary use of

force in violation of the Eighth Amendment of the United States Constitution and state

law fort claims for assault and battery. Doc. 21. As relief, Plaintiff requested a

declaratory judgment, compensatory damages and such "other relief as in [sic] may

appear that Plaintiff is entitled." Id., at 15-16. Plaintiff did not request a jury trial.

Case No. 5:02cv341-MCR/WCS

Inc., 24 F.3d 152, 156 (11th Cir. 1994), cited in Burns v. Lawther, 53 F.3d 1237, 1240

(11th Cir. 1995).1

Defendants asserts that they "did not previously request a jury trial as part of

their answer to Plaintiff's Complaint because the Court's Order directing service . . .

required that a special report be filed by Defendants." Doc. 65, p. 1. That order, as

argued by Defendants, also stated that no answer should be filed without permission of

the Court." Id. Thus, Defendants contend they "have never filed a responsive pleading

to Plaintiff's Complaint nor, absent a Court order, will a responsive pleading to Plaintiff's

claims be filed in this case that would include Defendants' demand for a trial by jury." 

Id., at 1-2.

"The federal rules provide that a party waives the right to a jury trial by failing to

serve and file a jury demand within 10 days of service of the last pleading directed to

such issue." United States Leather, Inc. v. Mitchell Mfg. Group, Inc., 276 F.3d 782, 790

(6th Cir. 2002), citing FED. R. CIV. P. 38. The Seventh Amendment right to a civil jury

trial "is not absolute and may be waived if the request for a jury was not timely." Burns,

53 F.3d at 1240.

The standard procedure in this Court for prisoner civil rights cases challenging

conditions of confinement is to direct the filing of a special report. This procedure

avoids expensive and wasteful discovery practices, streamlines the discovery process,

and allows speedier resolution of claims. That practice was employed here and on

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Case No. 5:02cv341-MCR/WCS

October 10, 2003, Defendants were directed to file a special report in response to

Plaintiff's third amended complaint. Doc. 26. The order required Defendants to either

file a motion to dismiss, if they determined Plaintiff had not exhausted administrative

remedies, or a special report. Id. The Order set forth specific items to be included in

the special report including defenses, copies of medical or disciplinary records, and the

like. Id., at 3. Additionally, as Defendants correctly state, the order provided that "[n]o

answer, motion for summary judgment, or request for discovery shall be served or filed

by any party without permission of the Court." Id., at 4. Because the filing of the special

report provides all of the information which would be included in an answer and gives

Defendants the opportunity to present their defenses, arguments, and evidence

supporting their defense, there is not usually another opportunity to file the traditional

"answer." Defendants filed the special report on December 18, 2003, and the report

and recommendation concerning the report (deemed a summary judgment motion) was

entered on August 5, 2004. Doc. 46.

In retrospect, it would have been better for me to have directed Defendants to file

an answer after the special report, converted to a motion for summary judgment, was

denied. This would have provided a clearer opportunity to make a jury demand. 

In Burns v. Lawther, supra, the Eleventh Circuit considered the narrow issue of

whether a special report like the one in this case should be considered a "pleading"

within the meaning of Rule 38(b), the rule governing jury trials as of right. 53 F.3d at

1240. There, the appellants did not demand a jury trial until nine months after the

special reports were filed. Id. The district court held the demand untimely, but the

Eleventh Circuit concluded that a "pleading" as defined by FED. R. CIV. P. 7 did not

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 "Rule 7 clearly states that a pleading is (1) a complaint, (2) an answer, (3) a

reply to a counterclaim, (4) an answer to a cross-claim, (5) a third-party complaint, or (6)

a third-party answer." Burns, 53 F.3d at 1241. "No other pleading shall be allowed . . .

." Id., quoting Rule 7(a). 

Case No. 5:02cv341-MCR/WCS

encompass a special report. Id., at 1241.2 Thus, Defendants' demand for a trial by jury

is timely. 

It is appropriate for me to rule upon the jury trial question by order rather than by

report and recommendation. See, United Steelworkers of America, AFL-CIO v. New

Jersey Zinc Co., Inc., 828 F.2d 1001 (3rd Cir. 1987). If Plaintiff objects to this ruling, he

must file an objection within ten days after service upon him of this order. Fed.R.Civ.P.

72(a). The objection would be heard by the District Judge. 

Accordingly, it is ORDERED that Defendants' request for a jury trial is timely. 

Since the parties have not consented to trial before me, the Clerk is DIRECTED to refer

this case to the District Judge for a jury trial.

DONE AND ORDERED on June 6, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

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