                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                      NOT PRECEDENTIAL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
