*

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 R. 47.5, the court has determined that this opinion should not be published and is not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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40684

Summary Calendar

THOMAS EDWARD RODRIGUEZ,

Plaintiff-Appellant,

versus

ROBERT HERRERA, ET AL.,

Defendants

JOSEPH A. AMOS, CO; JOY L. HARRIS, CO; 

MICHAEL WOOD, CO.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:96-CV-645

April 15, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

ThomasEdwardRodriguez, Texas prisoner # 553119, filed a 42 U.S.C. § 1983 action against

Robert Herrera, Assistant Warden;WilliamR. Watts, Captain;RaymondByrd, Major;David Poston,

Major; BillCheatham, “BOC Representative”; Joseph A. Amos, Correctional Officer;Joy L. Harris,

CorrectionalOfficer;KevinHarvey,CorrectionalOfficer;MichaelWood,Correctional Officer; James

L. Pate, Lieutenant; Ralph L. England, Sergeant; Rickey D. Kilgore, Captain; Timothy Wayne

Meyers, Sergeant;T.Wardell, Unit ClassificationOfficer; and JohnDoe (collectively, “Defendants”).

Rodriguez alleged that Defendants were deliberately indifferent to his safety because they allowed

him to be attacked by another inmate.
2

Rodriguez contended that Herrera, Watts, Byrd, Poston, Cheatham, Pate, England, Kilgore,

Meyers, and Wardell also failed to implement a proper policy with regard to the handcuffing and

escorting of assaultive prisoners. He also averred that Cheatham erroneously denied him

protective-custody status.

Finally, Rodriguez alleged that Amos, Wood, and Harris conspired to solicit and encourage

inmate Sam Slaughter to attack him. He averred that the attack was in retaliation for his having filed

a prior lawsuit against prison officials. In his complaint, Rodriguez requested that the matter be tried

by a jury.

A Spears hearing was held. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Following

the Spears hearing, the district court dismissed the claims against all of the defendants except Amos,

Harris, and Wood. We have reviewed the record and the briefs on appeal and affirm the dismissal

of the claims against Herrera, Watts, Byrd, Poston, Cheatham, Pate, England, Kilgore, Meyers, and

Wardell for the reasons adopted by the district court. See Rodriguez v. Herrera, No. 6:96-CV-645

(E.D. Tex. Feb. 7, 1997).

The magistrate judge then issued an order scheduling an evidentiary hearing pursuant to

Flowers v. Phelps, 956 F.2d 488 (5th Cir.), modified on other grounds, 964 F.2d 400 (5th Cir. 1992)

(“Flowers hearing”). Based on the evidence presented at this hearing, the magistrate judge

recommended that Rodriguez’sremaining claims against Amos, Wood, and Harris be dismissed. The

district court adopted the magistrate judge’s recommendation and dismissed Rodriguez’s complaint

with prejudice. 

Rodriguez was unaware that the Flowers hearing amounted to a bench trial and a final

disposition of his claims. We hold today that Rodriguez did not waive his jury demand by

participating in the Flowers hearing without objection. See McAfee v. Martin, 63 F.3d 436, 437-38

(5th Cir. 1995). In McAfee, the court stated that “because the right to a jury trial is a fundamental

right . . . courtsshould indulge every reasonable presumption against waiver . . . A waiver should not

be found in a doubtful situation.” Id. at 437 (internal quotations and citations omitted).
3

Notwithstanding that Rodriguez’s demand for a jury trial was denied in error by the district

court, we may consider the error harmless “if the evidence could not have withstood a motion for a

directed verdict at trial.” McDonald v. Steward, 132 F.3d 225, 230 (5th Cir. 1998) (citation omitted).

A directed verdict should be granted “[i]f the facts and inferences point so strongly and

overwhelmingly in favor of the party that the Court believes that reasonable men could not arrive at

a contrary verdict.” Id. (internal quotes and citation omitted).

Rodriguez failed to show that Harris was deliberately indifferent to a serious threat of harm

inasmuch as he failed to demonstrate an awareness of facts on the part of Harris that would have

allowed her to conclude that Rodriguez was at risk of harm. See Neals v. Norwood, 59 F.3d 530,

533 (5th Cir. 1995). Rodriguez’s failure-to-protect claim against Harris could not have withstood a

motion for a directed verdict. Thus, the district court’s dismissal of the claim was harmless. See

McDonald, 132 F.3d at 230. We also find that the dismissal of Rodriguez’s failure-to-protect claim

against Amos and Wood was harmless for the same reasons. 

We further affirmthe district court’s dismissalofRodriguez’s conspiracyclaimagainst Harris.

Rodriguez failed to show that Harris was involved in the retaliatory conspiracy against him, see

Pfannstiel v. City ofMarion, 918 F.2d 1178, 1187 (5th Cir. 1990), and thus his claimwould have been

amenable to a directed verdict. Finally, we affirm the dismissal of the conspiracy claims against Amos

and Wood. Although the resolution of Rodriguez’s conspiracy claim against Amos and Wood clearly

involved credibility determinations based on conflicting testimony, and determinations of credibility

are the province of the jury, see Martin v. Thomas, 973 F.2d 449, 453 (5th Cir. 1992), Rodriguez did

not preserve this claim by briefing it on appeal.

Thus, notwithstanding Rodriguez’sjury demand and the doubtful nature of his understanding

that he was participating in a bench trial, we have no basis on which to reverse the judgment of the

district court, as any error it committed was either harmless or not properl y preserved for appeal.

We affirm the judgment of the district court.

AFFIRMED.