injunction will not substantially harm other parties interested in the proceedings; and the public interest must be considered. 33

Habeas corpus actions are disposed of by the court without a jury34 while civil rights plaintiffs seeking damages have the right to a jury trial. 35 Rule 38 of

By sub

the Federal Rules of Civil Procedure requires that a demand for trial of any issue triable of right by a jury be filed and served not later than ten days after the service of the last pleading directed to such issue. The demand may be endorsed upon a pleading of the party. Under section (d) of Rule 38, the failure of a party to file and serve a demand as required by the rule constitutes a waiver of trial by jury. sequently amending the complaint the plaintiff may not revive his right to jury trial on the issues formed by the original pleadings. Walton v. Eaton Corp., 563 F.2d 66 (3d Cir. 1977); Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978). Where a party failed to make a timely demand for a jury trial and then moved to amend the complaint by adding his wife as a plaintiff, the district court did not err in denying the wife's demand for a jury trial. Commonwealth ex rel. Feiling v. Sincavage, 439 F.2d 1133 (3d Cir. 1971).

33.

Chesimard v. Mulcahy, 570 F.2d 1184 (3rd Cir. 1978); A. O. Smith Corp., et al. v. Federal Trade Commission, 530 F.2d 515 (3d Cir. 1976). See also National Prisoners Reform Assn. v. Sharkey, 347 F.Supp. 1234 (D. R.I. 1972) (to prevail on motion. for temporary restraining order plaintiff must show immediate and irreparable injury, probable success on the merits, and that possible harm to movant outweighs harm to opposing party).

34. 28 U.S.C. § 2243.

35. See McCray v. Burrell, 516 F.2d 357, 371 (4th Cir. 1975), cert. dismissed 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976) (request for jury trial denied as untimely and not in writing); Carter v. Estelle, 519 F.2d 1136 (5th Cir. 1975); Amburgey v. Cassady, 507 F.2d 728 (6th Cir. 1974); Chapman v. Kleindienst, 507 F.2d 1246 (7th Cir. 1974). Jury trial on factual issues underlying declaratory judgment action, Guajardo v. Estelle, 580 F.2d 748, 752 (5th Cir. 1978).

SECTION III: ROLE OF THE MAGISTRATE

The source of magistrates' jurisdiction to handle prisoner civil rights actions is 28 U.S.C. § 636(b)(1), which provides:

(a) Each United States magistrate serving under this chapter shall have within the territorial jurisdiction prescribed by his appointment

-

(b) (1) Notwithstanding any provision of
law to the contrary

(A) a judge may designate a
magistrate to hear and determine any
pretrial matter pending before the
court, except a motion for injunctive
relief, for judgment on the pleadings,
for summary judgment, to dismiss or
quash an indictment or information
made by the defendant, to suppress
evidence in a criminal case, to dis-
miss or to permit maintenance of a
class action, to dismiss for failure
to state a claim upon which relief
can be granted, and to involuntarily
dismiss an action. A judge of the
court may reconsider any pretrial
matter under this subparagraph (A)
where it has been shown that the
magistrate's order is clearly
erroneous or contrary to law.

(B) a judge may also designate a
magistrate to conduct hearings, includ-
ing evidentiary hearings, and to submit
to a judge of the court proposed findings
of fact and recommendations for the
disposition, by a judge of the court,
of any motion excepted in subparagraph
(A), of applications for posttrial

relief made by individuals, con-
victed of criminal offenses and
of prisoner petitions challeng-
ing conditions of confinement.

(C) the magistrate shall file
his proposed findings and
recommendations under subpara-
graph (B) with the court and a
copy shall forthwith be mailed
to all parties.

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

(2) A judge may designate

a magistrate to serve as a special
master purusant to the applicable
provisions of this title and the
Federal Rules of Civil Procedure
for the United States district
courts. A judge may designate a
magistrate to serve as a special
master in any civil case, upon
consent of the parties, without
regard to the provisions of rule
53(b) of the Federal Rules of
Civil Procedure for the United
States district courts.

(3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.

Under § 636 (b) (1) the case may be assigned to a magistrate to dispose of all pretrial matters except motions for injunctive relief, judgment on the pleadings, summary judgment, to dismiss or permit maintenance of a class action, and to involuntarily dismiss.

A magistrate may be designated to hear and submit a recommendation on the motions excepted from the magistrate's dispositive authority; and unless the plaintiff seeks money damages and one of the parties 36 makes a timely demand for a jury trial, the magistrate may be directed by the judge to conduct a hearing and submit proposed findings of fact and a recommendation for disposition of the action by a judge of the court. The parties are allowed ten (10) days from the date of service of the magistrate's recommendation to file objections and the judge is required to make a de novo determination of those portions of the report or specific proposed findings of fact or recommendations to which objections are made.

37

The House Report, No. 94-1609, explains the "de novo determination" as follows:

[t]he district judge in making the
ultimate determination of the matter
[must] . . . give fresh consideration
to those issues to which specific
objection has been made by a party.

The use of the words "de novo
determination" is not intended to
require the judge to actually con-
duct a new hearing on contested
issues. Normally, the judge, on
application, will consider the
record which has been developed
before the magistrate and make his
own determination on the basis of
that record, without being bound to
adopt the findings and conclusions
of the magistrate. In some specific
instances, however, it may be necess-
ary for the judge to modify or reject

36. See Section II, supra.

37. 1976 U.S. Code Cong. and Ad. News 6163.

the findings of the magistrate, to take additional evidence, recall witnesses, or recommit the matter to the magistrate for further proceedings.

The approach of the Committee, as well as that of the Senate, is adopted from the decision of the United States Court of Appeals for the Ninth Circuit in Campbell v. United States District Court for the Northern District of California, 501 F.2d 196 (9th Cir.), cert. denied 419 U.S. 879 (1974).