Whichard v. Bayloy

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-14-2005
Whichard v. Bayloy
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3210
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Recommended Citation
"Whichard v. Bayloy" (2005). 2005 Decisions. Paper 408.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/408
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3210
________________
MAURICE KING WHICHARD
v.
K. BAYLOY; COOPER; CLIFFORD COOPER; KENWIN BAYLOR
Maurice Whichard,
Appellant
__________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 01-CV-00148)
District Judge: Honorable Bruce W. Kauffman
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 12, 2005
Before: VAN ANTWERPEN, GREENBERG and NYGAARD, Circuit Judges
(Filed: October 14, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Maurice King Whichard commenced this civil rights action by filing a pro se
complaint in the United States District Court for the Eastern District of Pennsylvania in
which he alleged that he was punched, kicked and sprayed with pepper spray by prison
guards while he was being held as a pretrial detainee at Curran Fromhold Correctional
Facility. The District Court later appointed counsel, and the matter proceeded to trial
against two defendants on claims of excessive force, civil conspiracy, retaliation, assault
and battery, malicious prosecution and intentional infliction of emotional distress. The
jury completed a verdict sheet in favor of defendants on all claims, except that it found
that Correctional Officer Kenwin Baylor had committed assault and battery against
Whichard. The jury form indicates that it found that Whichard suffered damages as a
result of the assault and battery. In answer to question 4(b) on the form asking “what is
the amount of money, if any, which will compensate Plaintiff for damages suffered as a
result of the assault?,” the jury wrote “$0.” Whichard’s trial counsel filed a timely notice
of appeal and withdrew his appearance. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
On appeal, Whichard raises one claim: that he was not awarded compensatory
damages, damages for pain and suffering, nominal damages or punitive damages. In their
supplemental brief,1 appellees argue that this Court should affirm the District Court’s
1
At the time the parties filed their initial briefs, no trial transcript had been prepared.
Subsequently, the District Court granted Whichard’s motion for transcripts and transcripts
were prepared. We then gave the parties 21 days to file supplemental briefs. The
appellees filed a supplemental brief, but Whichard did not.
2
entry of judgment in accordance with the jury verdict awarding Whichard zero damages,
because of the minimal injuries Whichard suffered as a result of Officer Baylor’s assault
and battery.
Under Pennsylvania law, which governs the assault and battery claim, the
determination of whether any pain suffered by a plaintiff is compensable is generally to
be left for the jury. Van Kirk v. O’Toole, 857 A.2d 183, 186 (Pa. Super. 2004). “The test
of whether a zero verdict can be upheld [is] whether the uncontroverted injuries are such
that a conclusion that they are so minor that no compensation is warranted defies common
sense and logic.” Id. at 185. The evidence here showed that Whichard received only a
minor or superficial laceration with minor bleeding.2 The only treatment required for the
laceration was a steri-strip. The jury may have believed that any of Whichard’s injuries
that were caused by Baylor’s assault and battery were so minor as to be “a transient rub of
life and living,” and thus not compensable.3 See Boggavarapu v. E. Suburban Health
Ctr., 542 A.2d 516, 518 (1988). See First Union Commercial Corp. v. GATX Capital
Corp., 411 F.3d 551, 556 (4 th Cir. 2005) (jury’s damage award not reviewable “unless
unconscionable or motivated by extreme prejudice.”). We will therefore affirm the
District Court’s judgment.
2
While Whichard also experienced burning eyes due to the pepper spray, the jury did
not find any liability for use of the pepper spray; thus no damages resulting from its use
are at issue.
3
The jury also may have believed that Whichard’s injuries were due to such force that
Baylor used justifiably to enforce prison regulations or protect himself or others.
3