Robert Avery v. Keith Ferguson , 423 F. App'x 652 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3196
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Robert William Avery, *
*
Appellant, *
*
v. *
*
Keith Ferguson, in his individual and *
official capacity; Major Drake, in his *
individual and official capacity; Chris *
Sparks, in his individual and official *
capacity, *
*
Appellees, *
*
Benton County SWAT Team, *
* Appeal from the United States
Defendant, * District Court for the
* Western District of Arkansas.
Robert Holly, in his individual and *
official capacity; Sgt. Tomlin, in his * [UNPUBLISHED]
individual and official capacity; *
Deputy Carlton, in his individual and *
official capacity; Sgt. Jared Crabtree, *
in his individual and official capacity; *
Nathan Atchison, in his individual and *
official capacity; Travis Newell, in his *
individual and official capacity, *
*
Appellees, *
Harold Gage, in his individual and *
official capacity; Rick Holland, in his *
individual and official capacity; Josh *
Chapman, in his individual and official *
capacity; Richard Conner, in his *
individual and official capacity; Charles *
Robbins, in his individual and official *
capacity; Eric Warzecha, in his *
individual and official capacity; Tim *
Srader, in his individual and official *
capacity, *
*
Defendants, *
*
Wade Porter, in his individual and *
official capacity; Captain Jones, in *
his individual and official capacity, *
*
Appellees, *
*
Captain Petray, in his individual and *
official capacity, *
*
Defendant. *
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Submitted: August 1, 2011
Filed: August 4, 2011
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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
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Arkansas inmate Robert Avery appeals the district court’s1 dismissal of his 42
U.S.C. § 1983 action following an evidentiary hearing. Avery, formerly a pretrial
detainee at the Benton County Detention Center (BCDC), filed an action against
Benton County officials and SWAT team members, and BCDC officers. He claimed
as relevant that on January 16, 2007, the SWAT team used excessive force in
arresting and interrogating him, and officials had not properly trained and supervised
the team; and that on January 18, BCDC officers used excessive force against him,
and Captain Hunter Petray had not properly trained and supervised the officers.
Because Avery made a timely jury demand only as to his claim against Petray,
we hold that the court did not err in denying him a jury trial on the claims against all
other defendants. See Fed. R. Civ. P. 38 (jury demand must be made within 14 days
after last pleading directed to issue is served); Shelton v. Consumer Prods. Safety
Comm’n, 277 F.3d 998, 1011 (8th Cir. 2002) (where only thing new about amended
complaint was addition of party, only that party had right to jury arising out of
amended complaint; other parties had already waived right to jury by not making
demand after earlier complaint).
Upon careful review, we further hold that the court did not err in granting
summary judgment to Petray, see Mason v. Corr. Med. Servs., Inc., 559 F.3d 880,
884-85 (8th Cir. 2009) (de novo standard of review), or in dismissing Avery’s
remaining claims after an evidentiary hearing, see Hartsfield v. Colburn, 491 F.3d
394, 395-96 (8th Cir. 2007) (where there is no jury demand, evidentiary hearing
before magistrate judge “is the equivalent of a bench trial”; appellate court reviews
district court’s factual findings for clear error and its legal conclusions de novo).
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas, adopting the report and recommendations of the
Honorable James R. Marschewski, United States Magistrate Judge for the Western
District of Arkansas.
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Accordingly, the judgment is affirmed. See 8th Cir. R. 47B.
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