## Facts

- Robert H. Burns, a federal prisoner at a federal correctional institution in Alabama, developed a fistula in 1988 and alleged he suffered significant pain for several months before surgery.
- Burns sued two prison medical staff members under Bivens, alleging deliberate indifference to serious medical needs in violation of the Eighth Amendment.
- Burns also asserted a negligence claim against the United States under the Federal Tort Claims Act based on the same events.
- Burns’s original complaint did not include a jury demand.
- Early in the case, a magistrate judge ordered defendants to submit a “special report” addressing the allegations and noted defendants need not file an answer until preliminary review was completed; the report could be supported by affidavits and treated like a summary-judgment motion if appropriate.
- Months later, Burns filed amended complaints adding the FTCA claim and, for the first time, demanding a jury trial on all claims.
- Defendants filed answers after Burns’s amended pleadings and jury demand.
- The district court treated the special report as the “last pleading” under Federal Rule of Civil Procedure 38(b), deemed the jury demand untimely, conducted a bench trial, and entered judgment for defendants.

## Issues

1. Whether a court-ordered “special report” in a prisoner civil-rights case is a “pleading” for purposes of Federal Rule of Civil Procedure 38(b)’s jury-demand deadline.
2. Whether Burns waived his right to a jury trial by failing to demand a jury before defendants filed the special report.

## Decision

- The Eleventh Circuit held that the special report is not a “pleading” under Rule 38(b).
- Because the special report did not trigger the Rule 38(b) deadline, the district court erred in finding Burns’s jury demand untimely.
- The judgment was vacated and the case remanded for further proceedings consistent with Burns’s jury-trial right.

## Legal Principles

- Under Federal Rule of Civil Procedure 38(b), a jury demand must be served no later than 10 days after service of the “last pleading directed to such issue.”
- “Pleadings” are limited to those identified in Federal Rule of Civil Procedure 7(a); pre-answer submissions used for screening or case management are not pleadings.
- Materials functionally akin to motions (including potential summary-judgment submissions) do not qualify as responsive pleadings for Rule 38(b) timing.
- A litigant does not waive the jury-trial right based on failure to demand a jury before service of a non-pleading filing such as a prisoner-case special report.

## Conclusion

The Eleventh Circuit ruled that a court-ordered special report in prisoner litigation is not a Rule 38(b) pleading, so a jury demand made in later amended pleadings before defendants’ answers is timely; the denial of a jury trial required vacatur and remand.


Burns v. Lawther, 53 F.3d 1237 (11th Cir. 1995)