Bowles v. Bennett
| Citation | 629 F.2d 1092 |
| Decision Date | 06 November 1980 |
| Docket Number | No. 78-3524,78-3524 |
| Parties | Mary E. BOWLES and Edna K. Stone, Plaintiffs-Appellants, v. Larry D. BENNETT, etc., et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Alvin T. Prestwood, W. Michael Young, Montgomery, Ala., for plaintiffs-appellants.
W. Scears Barnes, Jr., Alexander City, Ala., Linda C. Breland, Montgomery, Ala., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Alabama.
Before HILL and POLITZ, Circuit Judges, and O'KELLEY, * District Judge.
Plaintiffs filed a complaint under 42 U.S.C. § 1983, invoking the jurisdiction of the court pursuant to the provisions of 28 U.S.C. §§ 1331 and 1343. They sought a temporary restraining order, preliminary and permanent injunctions involving their duty assignments with the Alabama Board of Corrections, damages, costs and attorney's fees. When the complaint was filed on August 18, 1978, the district judge declined to grant the temporary restraining order and scheduled the hearing on the preliminary injunction for October 19, 1978. Defendants then filed a motion to dismiss which was denied. On August 30, 1978, the district court entered an order consolidating the hearing on the motion for preliminary injunction with hearings in other cases and scheduled the consolidated hearings for September 18, 1978. On September 15, 1978, the district judge entered an order rescinding his prior consolidation order and set the hearing on plaintiffs' motion for preliminary injunction for September 28, 1978. Defendants filed no responsive pleadings, other than the motion to dismiss.
Plaintiffs were medical service personnel employed by the Alabama Board of Corrections and assigned to the Julia Tutwiler Prison. They were transferred to other assignments within the prison system and were given the option of accepting the transfers or terminating their employment. They opted for the latter and this suit was filed, alleging that the defendants, acting under color of state law, arbitrarily, capriciously, willfully and maliciously acted to deprive them of property without due process of law and to punish them for their exercise of free speech under the First Amendment. The complaint alleges that plaintiffs were ordered transferred as punishment for espousing the cause of quality medical care for inmates in the Alabama prison system and for complaining to officials that the defendants were not complying with the orders entered by the federal court in the proceedings entitled Newman v. Alabama. 1 Plaintiffs seek damages and seek to enjoin the defendants from interfering with their exercise of free speech and their efforts to provide quality medical care.
On September 28, 1978, the matter was called for trial on the motion for preliminary injunction and counsel for the parties announced ready. The court then sought a stipulation of the parties that the trial on request for a preliminary injunction would also constitute trial on the merits. The following colloquy took place between the court and counsel:
THE COURT: All right. Now, can I have an agreement between the parties in this case that evidence taken on this motion for preliminary injunction hearing may be considered as the final hearing in this case and let it be the motion for permanent injunction, also?
MR. BARNES (counsel for defendants): I have no objection to that, Your Honor.
MR. PRESTWOOD (counsel for plaintiffs): I haven't-really am not in a position to make that agreement at this time.
At the close of the evidence, the court heard oral arguments and then made findings of facts, concluding with this ruling:
Judgment will be entered denying the plaintiffs' request for injunctive relief wherein the plaintiffs ask this Court to enjoin the defendants from transferring or discharging them from their Merit System positions with the Alabama Prison System. The Court's order will deny the plaintiffs' request that they be awarded compensatory and punitive damages and costs and reasonable attorney's fees.
After formal written judgment was entered, the plaintiffs filed a motion seeking a new trial or, alternatively, an amendment of the findings and judgment so as to limit the decree to a denial of their application for a preliminary injunction. In this motion, which the court denied, plaintiffs noted their demand for trial by jury.
Plaintiffs timely appealed the order dismissing all of their demands and the order denying the alternative motion, assigning as error: (1) the denial of the preliminary injunction, (2) various findings upon which the denial of injunctive relief was based, (3) the consolidation of the hearing on the motion for preliminary injunction with the trial on the merits, and (4) the denial of their rights to a jury trial as a consequence of the consolidation.
We find no error in the denial of the preliminary injunction, accordingly, that part of the judgment is affirmed. However, in the posture in which this case was presented, the court should not have rendered judgment on the merits.
Fed.R.Civ.P. 65(a)(2) gives the trial judge discretion to combine a hearing on a motion for preliminary injunction with the trial on the merits. 2 This combining may be done before or after the commencement of the hearing, however, it must be done in such a way that the parties' rights to trial by jury are protected.
Rule 38 of the Federal Rules of Civil Procedure, entitled "Jury Trial of Right," provides in pertinent part:
(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by 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. Such demand may be indorsed upon a pleading of the party.
(d) Waiver. The failure of a party to serve a demand...
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