IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40147 Summary Calendar

LEROY ADAMS, JR.,

Plaintiff-Appellant,

versus

JOHN LAYNE; CRAIG J. BARTON; THOMAS W. WARDELL; ROBERT HERRERA; CHRISTINA MOORE; JAMES PATE; GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division; JOHN F. MCAULIFFE; CHET A. THOMAS; BRENT J. GRIGSBY; DENNIS BLEVINS; PAUL PACE; RICKY DAVIS; GARLAND PACK,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:97-CV-1085 - - - - - - - - - -

September 27, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Leroy Adams, Jr., Texas prisoner # 397222, appeals the

district court’s denial of his

civil rights

complaint. In his complaint, Adams alleged that corrections

officer John K. Layne, and other prison officials, violated his

constitutional right to be free from excessive force when Officer

Layne allegedly kicked a food slot onto his finger, resulting in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-40147 -2-

an injury that required stitches.

On appeal, Adams argues that the magistrate judge

impermissibly conducted a bench trial, pursuant to Flowers v.

Phelps,

, modified on other grounds,

(5th Cir. 1992), despite Adams’ timely request for a jury trial.

Because Adams made a timely request for a jury trial, and

because it does not appear that Adams waived his right to a jury

trial, the magistrate judge erred when he disregarded or

overlooked Adams’ jury trial demand. See Fed. R. Civ. P. 38;

Jennings v. McCormick,

(5th Cir. 1998);

McAfee v. Martin,

(5th Cir. 1995). Moreover,

the error was not harmless, because the magistrate judge weighed

the credibility of witnesses to reach his decision. See

Jennings,

.

Accordingly, the district court’s order is VACATED and the

case REMANDED to the district court for further proceedings

consistent with this opinion.

VACATE AND REMAND.