Drone v. Hutto
| Decision Date | 28 November 1977 |
| Docket Number | No. 77-1143,77-1143 |
| Citation | 565 F.2d 543 |
| Parties | Carl Lee DRONE, Appellant, v. Terrell Don HUTTO, Commissioner, Arkansas Department of Correction, and Lt. Jimmy Dougan, Correctional Officer, Cummins Unit, Arkansas Department of Correction, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Barber, McCaskill, Amsler & Jones, Little Rock, Ark., for appellant.
Bill Clinton, Atty. Gen., and Robert A. Newcomb (former Asst. Atty. Gen.), Little Rock, Ark., for appellees.
Before BRIGHT and ROSS, Circuit Judges; and HARPER, Senior District Judge. *
Carl Lee Drone, a prisoner at the Cummins Unit of the Arkansas Department of Correction, brought a civil action under 42 U.S.C. § 1983 (1970), against Lt. Jimmy Dougan, a corrections officer at the prison, and Terrell Don Hutto, Commissioner of the Department of Correction, seeking damages and injunctive relief because of injuries sustained at the hands of Lt. Dougan and other correctional officers at Cummins. The district court heard the prisoner's case without a jury and entered a dismissal. It found that, although Dougan admitted striking Drone several times with a slapper and although other prison guards joined in striking Drone, the force used by Dougan against Drone was not excessive and was used solely for the purposes of self-defense. Apparently Drone struck Dougan first and in the process broke Dougan's glasses.
On this appeal Drone, through counsel appointed by this court, urges that the district judge erred in refusing to grant his demand for a jury trial, in refusing to appoint an attorney to represent him in the district court, and in rejecting the testimony of his witnesses. We agree with the first contention and reverse as against appellee Dougan. 1 We hold that because Carl Lee Drone demanded a jury trial in his complaint the trial court was obligated to grant the request under the seventh amendment.
In the concluding section of his pro se complaint, appellant requested, among other things, a "trial by jury on all facts trialable (sic) by jury(.)" The district court had denied a jury trial because appellant sought equitable relief as well as damages. The court committed error in this regard, for it is well established that a plaintiff in the federal court asserting both legal and equitable claims in the same lawsuit is entitled to a jury trial on the legal issue. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). See also Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970).
Appellee does not dispute this principle but relies on local rule 2(d) for the Eastern District of Arkansas to support the denial of a jury trial. That rule provides: "It will be helpful if demands for jury trial are made separate from the complaint or answer filed in any cause."
The quoted language recites no legal requirement applicable to jury trial demands and is suggestive only. The failure to comply with such a " suggestion" does not constitute waiver of a right to jury trial when one has been demanded in accordance with Federal Rule of Civil Procedure 38(b). Cf. Rutledge v....
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