
    Ferdinand REYNOLDS, Plaintiff—Appellant, v. James GOMEZ, Defendant, and Theodore WHITE, Warden; Ivalee Henry; Stanley Wang, Defendants—Appellees.
    No. 01-16261.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 9, 2004.
    Decided April 14, 2004.
    Ferdinand Reynolds, CSPLAC—California State Prison L.A. County, Lancaster, CA, pro se.
    Alexis Coil-Very, Esq., Wendy Wrosch, Esq., Simpson, Thacher, Bartlett, Palo Alto, CA, for Plaintiff-Appellant.
    Gregory T. Fayard, Esq., AGCA — Office of the California Attorney General (SAC), Department of Justice, Sacramento, CA, for Defendants-Appellees.
    Before: GRABER and W. FLETCHER, Circuit Judges, and WEINER, Senior District Judge.
    
    
      
       Honorable Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
    
   MEMORANDUM and ORDER

Appellant’s contention, that the stipulation concerning his civil jury waiver was invalid because it did not comply with the local rules for the Eastern District of California, is without merit. However, because an attorney cannot waive the client’s right to a jury trial without the client’s consent, and such consent can be conditioned (such as on trial by a magistrate judge rather than a district judge), Reynolds’ assertion that his consent was so conditioned, his contemporaneous letter to the district judge mentioning a magistrate trial, and the trial judge’s refusal to allow him to address the court, raise a factual issue whether there was actual consent to the waiver of Reynolds’ right to a jury trial. Accordingly, we vacate the judgment entered below and remand for a factual determination on the issue of Reynolds’ consent to the waiver.

If, on remand, it is determined that there was no consent to a trial before the district judge, the waiver of a jury would not be harmless error and a new trial would be required. If, on remand, it is found that Reynolds consented to the waiver, then the judgment shall be reinstated.

JUDGMENT VACATED; REMANDED. The parties shall bear their own costs on appeal.

Defendants’-Appellees’ Request to Supplement the Record is DENIED AS MOOT. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
     