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Unknown, 63 F.3d 436. Cases Citing This Book View Copy Cite
46 citation events (17 in the last 25 years) across 6 distinct courts.
Strongest positive: Griffin v. Adams (lawd, 2025-07-18)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) Griffin v. Adams
W.D. La. · 2025 · confidence medium
In this non-jury, pro se prisoner suit, the undersigned magistrate judge ordinarily is the trier of fact at a hearing held pursuant to Flowers v. Phelps, 956 F.2d 488 (5th Cir.), modified on other grounds, 964 F.2d 400 (5th Cir. 1992), which “amounts to a bench trial replete with credibility determinations and findings of fact.” McAfee v. Martin, 63 F.3d 436, 437 (5th Cir. 1995). 4 See Wendell v. Asher, 162 F.3d 887,890-91 (5th Cir. 1998) (overruled by implication on other grounds by Jones v. Bock, 549 U.S. 199, 214 (2007)) (§ 1997e(a) “plainly requires that administrative remedies be e…
discussed Cited as authority (rule) Smith v. Caldwell Parish Detention Center
W.D. La. · 2025 · confidence medium
In this non-jury, pro se prisoner suit, the undersigned magistrate judge ordinarily is the trier of fact at a hearing held pursuant to Flowers v. Phelps, 956 F.2d 488 (5th Cir.), modified on other grounds, 964 F.2d 400 (5th Cir.1992), which “amounts to a bench trial replete with credibility determinations and findings of fact.” McAfee v. Martin, 63 F.3d 436, 437 (5th Cir. 1995).
cited Cited as authority (rule) Stry v. McCrea
E.D. Tex. · 2020 · confidence medium
McAfee v. Martin, 63 F.3d 436, 437 (5th Cir. 1995); Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir. 1998); Littleton v. Passmore, 89 F. App’x 471 (5th Cir. 2004).
cited Cited as authority (rule) Tommy Jackson v. Christopher Epps
5th Cir. · 2013 · confidence medium
A hearing conducted pursuant to Flowers v. Phehps amounts to a “bench trial replete with credibility determinations and findings of fact.” McAfee v. Martin, 63 F.3d 436, 437 (5th Cir.1995).
discussed Cited as authority (rule) Kinetic Concepts, Inc. v. Smith & Nephew, Inc. (2×)
Fed. Cir. · 2012 · confidence medium
Waiver of the right to a jury trial cannot be assumed under circumstances in which a party continually requests a jury trial and the district court never referenced Rule 39 or waiver of the right to a jury trial when it referred to an “advisory jury.” See Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir. 1998) (“The right to jury trial is too important and the usual procedure for its waiver is too clearly set out by the Civil Rules for courts to find a knowing and voluntary relinquishment of the right in a doubtful situation.” (citation omitted)); McDonald v. Steward, 132 F.3d 225, 22…
discussed Cited as authority (rule) Edward Ashford v. USA (2×)
5th Cir. · 2012 · confidence medium
STANDARD OF REVIEW A Flowers hearing “ ‘amounts to a bench trial replete with credibility determinations and findings of fact.’ ” Ashford, 511 F.3d at 504 (quoting McAfee v. Martin, 63 F.3d 436, 437 (5th Cir.1995)).
discussed Cited as authority (rule) Morales v. USA
5th Cir. · 2010 · confidence medium
A Flowers hearing is a "bench trial replete with credibility determination and findings of fact.” McAfee v. Martin, 63 F.3d 436, 437 (5th Cir.1995); see also Flowers v. Phelps, 956 F.2d 488 (5th Cir.), modified in part on other grounds, 964 F.2d 400 (5th Cir.1992). 5 .
discussed Cited as authority (rule) Truong v. Allstate Insurance Co.
N.M. Ct. App. · 2008 · confidence medium
Martin, 63 F.3d 436, 437 (5th Cir.1995) (holding that because the right to a jury trial is a fundamental right and courts should indulge every reasonable presumption against waiver, a waiver should not be found in a doubtful situation). {78} Contrary to the majority, I do not read this record to demonstrate that Plaintiffs' understanding of the nature of the hearing changed over time, much less that Plaintiffs agreed.
discussed Cited as authority (rule) Truong v. Allstate Insurance
N.M. Ct. App. · 2008 · confidence medium
Martin, 63 F.3d 436, 437 (5th Cir.1995) (holding that because the right to a jury trial is a fundamental right and courts should indulge every reasonable presumption against waiver, a waiver should not be found in a doubtful situation). {78} Contrary to the majority, I do not read this record to demonstrate that Plaintiffs’ understanding of the nature of the hearing changed over time, much less that Plaintiffs agreed.
cited Cited as authority (rule) Ashford v. United States
5th Cir. · 2007 · confidence medium
McAfee v. Martin, 63 F.3d 436, 437 (5th Cir.1995). 3 .
cited Cited as authority (rule) Adkins v. Kaspar
5th Cir. · 2005 · confidence medium
McAfee v. Martin, 63 F.3d 436, 437 (5th Cir.1995). 7 .
discussed Cited as authority (rule) Adkins v. Kaspar
5th Cir. · 2004 · confidence medium
As his testimony is irrelevant to any issue in this case, we have not included it in this recitation of facts 4 80 F.3d 1175 (7th Cir.1996) 5 956 F.2d 488 (5th Cir.), vacated and superseded in part on denial of reh'g, 964 F.2d 400 (5th Cir.1992). 6 McAfee v. Martin, 63 F.3d 436, 437 (5th Cir.1995). 7 Westchester Fire Ins.
discussed Cited as authority (rule) Carter v. Lowndes County (2×) also: Cited "see"
5th Cir. · 2004 · confidence medium
An evidentiary hearing consistent with Flowers v. Phelps, 956 F.2d 488 (5th Cir.), vacated and superceded on other grounds on reh’g, 964 F.2d 400 (5th Cir.1992) and 28 U.S.C. § 636 (b)(1)(B), as in this case, “amounts to a bench trial replete with credibility determinations and findings of fact.” McAfee v. Martin, 63 F.3d 436, 437 (5th Cir.1995).
discussed Cited as authority (rule) Robinson v. Figueroa (2×)
5th Cir. · 2000 · confidence medium
Robinson contends that the magistrate judge abused his discretion in overruling his objection to the Flowers hearing and in refusing to permit him to try his claims before a jury. “[T]he right to a jury trial is a fundamental right.” McAfee v. martin, 63 F.3d 436, 437-38 (5th Cir. 1995) (stating that courts “should indulge every reasonable presumption against waiver” of the right to a jury trial).
cited Cited as authority (rule) Adams v. Layne
5th Cir. · 1999 · confidence medium
P. 38; Jennings v. McCormick, 154 F.3d 542, 544-46 (5th Cir. 1998); McAfee v. Martin, 63 F.3d 436, 437-38 (5th Cir. 1995).
cited Cited as authority (rule) Willie Ray McDonald v. J. Steward, Library Supervisor, Michael Unit Director Tdcj-Id
5th Cir. · 1998 · confidence medium
Martin, 63 F.3d 436, 437 (5th Cir.1995) (quoting Bowles, 629 F.2d at 1095 ).
cited Cited as authority (rule) Kelly v. Pence
E.D. Tex. · 1997 · confidence medium
McAfee v. Martin, 63 F.3d 436, 437 (5th Cir.1995).
cited Cited as authority (rule) WILLIE RAY MCDONALD v. J. STEWARD, Library Supervisor, Michael Unit; DIRECTOR TDCJ-ID
unknown court · confidence medium
Martin, 63 F.3d 436, 437 (5th Cir. 1995) (quoting Bowles, 629 F.2d at 1095 )).
discussed Cited as authority (rule) HORACE JEFFERY v. MICHAEL SAUSEDA, Correctional Officer, Beto I (2×) also: Cited "see"
unknown court · confidence medium
This court has stated “the right to a jury trial is a fundamental right,” and “courts should indulge every reasonable presumption against waiver.” McAfee v. Martin, 63 F.3d 436, 437-38 (5th Cir. 1995)(internal quotations and citations omitted).
cited Cited "see" Johnson v. Fewell
5th Cir. · 2002 · signal: see · confidence high
See McAfee v. Martin, 63 F.3d 436, 437 (5th Cir. 1995).
Retrieving the full opinion text from the archive…
63 F.3d 436
PER CURIAM:

McAfee appeals the dismissal of his § 1983 action based on excessive force against Officers David Boyd and Russell Mittasch and his retaliation claims against Wardens Charles Martin and Rodney Cooper. We vacate the district court judgment and remand for further proceedings.

I.

The district court referred this § 1983 action to the magistrate judge pursuant to § 636(b)(1)(B). Thereafter a notice of a “Flowers” hearing issued to the parties. [1] The magistrate judge held the Flowers hearing after announcing that the court would conduct “an evidentiary hearing.” The magistrate judge heard witnesses for both sides and at the conclusion found that McAfee had not carried his burden of proof and recommended dismissal of his action. The district court accepted the magistrate judge’s recommendation and dismissed the suit.

II.

McAfee complains first that the magistrate judge improperly held a Flowers hearing after he had demanded a jury trial. The record reveals that McAfee made a jury demand within ten days after Boyd and Mittasch filed their answers. We are satisfied therefore that McAfee made a timely jury demand under Fed.R.Civ.P. 38(b).

Although appellees do not argue that McAfee’s participation in the magistrate judge’s hearing without objection was an implicit waiver of his earlier jury demand, we have considered whether this legal result should follow. See Casperone v. Landmark Oil & Gas Corp., 819 F.2d 112, 116 (5th Cir.1987).

Because the right to a jury trial is a fundamental right, however, courts should “indulge every reasonable presumption against waiver.” Bowles v. Bennett, 629 F.2d 1092, 1095 (5th Cir.1980) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937)). A waiver should not be found in a “doubtful situation.” Id.

The question, then, narrows to whether McAfee faced a doubtful situation. A magistrate judge’s expanded evidentiary hearing like the one at issue amounts to a bench trial replete with credibility determinations and findings of fact. At the commencement of McAfee’s hearing, the magistrate judge called it “an evidentiary hearing.” She did not use the term “trial” until well into the proceeding and then without explaining the[*438] difference between a trial and an evidentiary-hearing.

When the magistrate judge set the hearing, she called it “an expanded evidentiary hearing pursuant to Flowers_” The order did not explain what a Flowers hearing was. That order was issued before this court, in Brown and Clark [2] , had sorted out what a Flowers hearing is. Additionally, counsel for the appellees, an assistant state attorney general, asserts that the hearing was not a trial. Thus, if the defendants’ lawyer reading the transcript does not know that the hearing was a trial, McAfee’s contention that he did not understand that the magistrate was conducting a trial rings true. The situation was doubtful.

Accordingly, the magistrate judge erred in holding the § 636(b)(1)(B) hearing in the face of a timely jury demand. The judgment entered on the basis of the magistrate judge’s finding at that hearing is vacated and the ease is remanded for further proceedings consistent with this opinion. [3]

VACATED and REMANDED.

1

. Flowers v. Phelps, 956 F.2d 488 (5th Cir.), modified on other grounds, 964 F.2d 400 (5th Cir.1992).

2

. Brown v. Lynaugh, No. 93-4070, slip op. at 5, 20 F.3d 1171 (5th Cir. Apr. 8, 1994) (unpublished); Clark v. Richard, No. 93-05119, slip op. at 14, 26 F.3d 1118 (5th Cir. June 14, 1994) (unpublished).

3

. This disposition makes it unnecessary to consider the remaining issues McAfee raises on appeal.