Tyrone Wright v. Thomas Lewis, Corrections Officer, Glenn Bearor and Jeffrey Hughes, 76 F.3d 57, 2d Cir. (1996)

76 F.
3d 57
Tyrone WRIGHT, Plaintiff-Appellant,

v.
Thomas LEWIS, Corrections Officer, Glenn Bearor and
Jeffrey
Hughes, Defendants-Appellees.
Docket Nos. 94-2131, 404.
United States Court of Appeals,

Second Circuit.
Argued Oct. 24, 1995.
Decided Feb. 2, 1996.
C. Allen Garrett, Jr., New York City (Douglas F. Broder, Coudert

Brothers, of counsel), for Plaintiff-Appellant.
Julie S. Mereson, Assistant Attorney General, Albany, NY (Dennis C.
Vacco, Attorney General, Peter G. Crary and Nancy A. Spiegel, Assistant
Attorneys General, of counsel), for Defendants-Appellees.
Before: FEINBERG, OAKES and CALABRESI, Circuit Judges.
OAKES, Senior Circuit Judge:
This appeal concerns a magistrate judge's duty to order service of a civil cover
sheet indicating a jury demand with the rest of a pro se prisoner's complaint
when, pursuant to local rule, the magistrate has assumed responsibility for
review and service of the complaint. Tyrone Wright ("Wright") appeals from
the January 27, 1994, order of the United States District Court for the Northern
District of New York (Ralph W. Smith, Jr., Magistrate Judge) entering
judgment against Wright in his action under 42 U.S.C. 1983 (1988). The case
proceeded as a bench trial after Magistrate Smith found that Wright had waived
his right to a jury trial by failing to include a jury demand in his complaint.
Wright contends that checking the jury demand box on the civil cover sheet
filed with his 1983 complaint was sufficient to preserve his right to a jury
trial. He also contends that Magistrate Smith erred in denying Wright's

subsequent request for a jury trial and made clearly erroneous factual findings.
Because we find that the magistrate had a duty to serve the civil cover sheet
indicating Wright's jury demand and that therefore Wright did not waive his
right to a trial by jury, we vacate the judgment of the magistrate and remand to
the district court for a jury trial.
BACKGROUND
3
At the time of the events giving rise to Wright's 1983 claim, he was
incarcerated at the Great Meadow Correctional Facility. On October 21, 1985,
after losing consciousness the night before, Wright was taken to the hospital
area of the prison for a medical examination where, he alleges, he was beaten
by three officers. This alleged assault prompted Wright to sue under 1983 for
a violation of his Eighth Amendment right against cruel and unusual
punishment.
Proceeding pro se, Wright commenced his suit on November 25, 1985, by
completing a civil cover sheet and a "Form to be Used by a Prisoner in Filing a
Complaint Under the Civil Rights Act, 42 U.S.C. Section 1983." Both of these
forms were supplied to prisoners by the United States District Court for the
Northern District of New York. The civil cover sheet included the words
"JURY DEMAND" with boxes for "YES" and "NO," and the statement "Check
YES only if demanded in complaint." The complaint form, however, had no
reference to a jury trial and no specific place to make a jury demand. Wright
received no other guidance on demanding a jury trial beyond the two forms.
Wright checked the "YES" box on the civil cover sheet, but did not request a
jury trial anywhere in the complaint form. He then submitted the two forms to
the district court with an application to proceed in forma pauperis. Pursuant to a
Standing Order in effect in the Northern District of New York at this time, the
case was assigned to a judge of the court and referred to a magistrate for all
further proceedings except final disposition. In an order issued December 31,
1985, Magistrate Smith granted Wright leave to proceed in forma pauperis, and
consequently ordered the district court clerk to file Wright's complaint and to
see that it was served upon the defendant officers.
In February 1990, Magistrate Smith appointed Richard Mott ("Mott") to

represent Wright in response to Wright's repeated requests for counsel. In
March 1992, Mott wrote the magistrate a letter (copied to the defendants)
requesting a jury trial in Wright's case, noting that Wright had checked the jury
demand box on the civil cover sheet when filing his complaint pro se and
clearly desired a jury trial. Magistrate Smith denied the request in a short letter,
citing Favors v. Coughlin, 877 F.2d 219 (2d Cir.1989), as dispositive. The case
was later tried before Magistrate Smith upon consent of the parties.
7
In this appeal, Wright argues: (1) that checking the jury demand box of the civil
cover sheet provided to him by the court was sufficient to preserve his right to a
jury trial; (2) that Mott's March 1992 letter to the magistrate served as a motion
for trial by jury and that Magistrate Smith abused his discretion by refusing to
grant Wright a jury trial; and (3) that Magistrate Smith made erroneous factual
findings during the bench trial.DISCUSSION
Federal Rule of Civil Procedure 38(b) specifies that when there is a right to a
trial by jury, a party must serve his written demand for a jury on the other
parties within a required time and file his demand with the court.1 Failure to
meet these requirements results in waiver of the right to trial by jury.
Fed.R.Civ.P. 38(d).
Wright's March 1992 letter to the court requested that the magistrate find his
jury demand on the civil cover sheet sufficient to meet the requirements of Rule
38(b). In denying this request, Magistrate Smith offered no explanation beyond
citing a decision of this court, Favors v. Coughlin, 877 F.2d 219 (2d Cir.1989).
In Favors, we held that a pro se plaintiff waived his right to a jury trial by
failing to serve timely his jury demand on the opposing parties. Like Wright,
Favors had checked the jury demand box of his civil cover sheet but failed to
mention his jury demand in the actual complaint. 877 F.2d at 220. His
complaint was then served without the civil cover sheet. Id. While
acknowledging that "a timely served civil cover sheet on which the 'Jury
Demand' box is checked can, without more, constitute a proper jury trial
demand," id. (emphasis in original), see also Winant v. Carefree Pools, 118
F.R.D. 28, 29 (E.D.N.Y.1988), we held that failure to serve the cover sheet
deprives the other party of the notice mandated by Rule 38(b). Id.
10
Our decision in Favors thus turned on the issue of service, not on the absence of
a jury demand in the actual complaint. Indeed, we specifically stated that a
demand made on a civil cover sheet was sufficient to meet Rule 38(b), provided
the cover sheet was served in a timely manner. However, because Favors did
not serve his civil cover sheet on the opposing parties and therefore gave them
no notice of his jury demand, we found that he had waived his right to a jury
trial under Rule 38(b). 877 F.2d at 221.
11
Despite the similarity to Favors, we find that the outcome in Wright's case is
determined by his in forma pauperis status. By granting Wright leave to pursue

his 1983 claim in forma pauperis, Magistrate Smith shifted the responsibility
for serving the complaint from Wright to the court.2 As the magistrate's
December 31, 1985, order reflects, Wright was relieved by his poverty of the
responsibility for filing and effecting service of his complaint. Instead,
Magistrate Smith directed the Clerk of the Northern District of New York to
"issue a summons and complaint to the United States Marshal for service upon
the named defendants." Having thus relinquished control over service, Wright
cannot be said to have waived his right to a jury trial under our reasoning in
Favors. 3
12
In holding that Favors is not dispositive of this case, however, we have not
completed our inquiry. The question remains whether the court's obligation to
effect service for Wright extended to serving his civil cover sheet in addition to
his complaint. There are several reasons we are persuaded it did. First, under
the Northern District's general rule on magistrates' duties, Magistrate Smith was
required to review Wright's complaint and assess it for its merits.4 Such a
review, in our opinion, should have included recognition of Wright's desire for
a jury trial and notice of his demand through service of the cover sheet.
13
Second, the forms Wright was required to use to make his complaint were
misleading in that they provided no place on the actual complaint form to
request a jury trial specifically: the only place to do so was on the civil cover
sheet.5 Given that the court itself supplied prisoners with these confusing
forms, it seems only fair that the court be required to read them carefully for a
jury demand and to serve the civil cover sheet if it is the only place the demand
appears. See Washington v. New York City Bd. of Estimate, 709 F.2d 792, 799
(2d Cir.) (Oakes, J. dissenting) ("[I]t is a very simple matter ... for the pro se
claimant to be provided with the information necessary to claim or waive jury
trial."), cert. denied, 464 U.S. 1013, 104 S.Ct. 537, 78 L.Ed.2d 717 (1983).
14
Finally, we note that the jurisprudence of both the Supreme Court and this court
reflect a presumption against waiver of one's right to a jury trial. See Aetna
Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811-12, 81 L.Ed.
1177 (1937); Washington, 709 F.2d at 797 n. 4; National Equipment Rental,
Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir.1977). In Washington, we
recognized that when a complainant asserts the right to a jury before the time
for making a jury demand has expired under Rule 38(b), there is a presumption
against waiver, but when there is no timely action, the presumption is that
waiver occurred. 709 F.2d at 797 n. 4. Where, as here, the final step in
complying with Rule 38(b) was in the hands of the court, not the complainant,
we believe that the court's failure to take that final step should not be deemed to
have extinguished Wright's Seventh Amendment right to a trial by jury. See

Heyman v. Kline, 456 F.2d 123, 129 (2d Cir.) ("The right to jury trial is too
important ... to find a knowing and voluntary relinquishment of the right in a
doubtful situation."), cert. denied, 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88
(1972).
15
Given that the responsibility for review and service of Wright's complaint lay
with the court, we hold that Wright's civil cover sheet indicating his jury
demand should have been served by the court on the other parties. When a
prisoner is granted in forma pauperis status for a 1983 claim in the Northern
District of New York, he is justified in relying on the court to interpret its own
forms and to provide notice of a jury demand through appropriate service. We
accordingly find that, under the circumstances, Wright did not waive his right to
a jury trial by checking the jury demand box of his civil cover sheet without
mentioning the demand in his actual complaint.
16
We base our holding on the court's responsibility to order service and therefore
need not reach Wright's claim that the court erred in denying his March 1992
request for a jury trial. Because we now remand this case to the district court
for a jury trial, we do not address Wright's claims of error in the factual findings
made by the court.
CONCLUSION
17
We vacate the judgment entered below and remand the case to the district court
for a jury trial of Wright's 1983 claims.
Rule 38. Jury Trial of Right

(b) Demand. Any party may demand a trial by jury ... by (1) serving upon the
other parties a demand therefor in writing at any time after the commencement
of the action and not later than 10 days after the service of the last pleading
directed to such issue, and (2) filing the demand as required by Rule 5(d). Such
demand may be indorsed upon a pleading of the party.
Under a Standing Order of the Northern District in effect at the time, all civil
rights complaints were referred to magistrates "for all further proceedings,
excepting final disposition," including the decision to grant in forma pauperis
status and the subsequent assumption of responsibility for the filing and service
of the complaint. Standing Order Providing for Referral of Habeas Corpus and
Civil Rights Complaints By Prisoners to Magistrates, United States District
Court for the Northern District of New York, August 2, 1985. The Order has
since been superseded by the Northern District's Local Rule 5.4(a)
3
We note that although the plaintiff in Favors was also granted leave to proceed
in forma pauperis, the issue of the district court's responsibility for service was
not briefed by the parties nor addressed by this court in its opinion
The rule in effect at the time of Magistrate Smith's order was Northern District
of New York General Rule 43, which reads in pertinent part:
(c) Additional Duties
The United States Magistrates ... shall perform the following additional duties:
(4) Review preliminarily ... complaints filed under 42 U.S.C. Section 1983,
[and] obtain appropriate information in their regard which may be of assistance
in determining the merits of any petition or complaint....
Wright points out that the Northern District has since changed its complaint
form to include a specific line where the prisoner can check a box requesting
either a jury or non-jury trial. Prisoners are now also provided guidance on
requesting a jury trial in a "Manual for Pro Se Litigants," which is given to
them with the complaint form and civil cover sheet

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76 F.

Tyrone WRIGHT, Plaintiff-Appellant,

United States Court of Appeals,

C. Allen Garrett, Jr., New York City (Douglas F. Broder, Coudert

trial. He also contends that Magistrate Smith erred in denying Wright's

In February 1990, Magistrate Smith appointed Richard Mott ("Mott") to

determined by his in forma pauperis status. By granting Wright leave to pursue

have extinguished Wright's Seventh Amendment right to a trial by jury. See

Rule 38. Jury Trial of Right

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