Robert Avery v. Keith Ferguson

¶1 Arkansas inmate Robert Avery appeals the district court’s 1 dismissal of his 42 U.S.C. § 1983 action following an eviden-tiary 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.

¶2 Because Avei’y made a timely jury demand only as to his claim against Petray, we hold that the court did not err in *653 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).

¶3 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).

¶4 Accordingly, the judgment is affirmed. See 8th Cir. R. 47B.