Derrol Kirby, III v. John Roth, et al

Filing

PER CURIAM OPINION FILED - THE COURT: BOBBY E. SHEPHERD, KERMIT E. BYE and MORRIS S. ARNOLD (UNPUBLISHED) [3782780] [10-3697]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-3697
___________
Derrol Dee Kirby, III,

*
*
Appellant,
*
* Appeal from the United States
v.
* District Court for the
* Western District of Arkansas.
John Roth, Ex Police Chief of Barling *
Police Department; Larry Merchant,
*
[UNPUBLISHED]
Next in charge under Police Chief,
*
Barling Police Department; Kevin
*
Dougan, Barling Patrolman, Barling
*
Police Department; John Barbor,
*
Barling Patrolman, Barling Police
*
Department; City of Barling,
*
*
Appellees.
*
___________
Submitted: April 25, 2011
Filed: May 2, 2011
___________
Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Derrol Dee Kirby, III, filed a pro se 42 U.S.C. § 1983 action against the City
of Barling, Arkansas, and four officers of the Barling Police Department, claiming
that the officers used excessive force against him and denied him medical care
following his arrest. After conducting a bench trial, the district court found the use

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of a taser against Kirby was unconstitutionally excessive, awarded him $167.42 in
compensatory damages against the officers in their individual capacities, and ordered
defendants to revise the policy concerning taser use. The court found for defendants
on the claim of denial of medical care.
On appeal, Kirby argues that he should have received a larger award for his
medical expenses, that he should have received damages for pain and suffering as
well as punitive damages, that he should have prevailed on his medical-care claim,
and that the trial judge was biased. He has also moved for recusal of any Arkansasbased judges on this court, and for production of the trial transcript at government
expense. Defendants argue in part that Kirby’s appeal should be dismissed because
his brief did not comply with Federal Rule of Appellate Procedure 28.
We decline to dismiss Kirby’s appeal, because he is proceeding pro se and his
brief makes a discernable argument. See LoSacco v. City of Middletown, 71 F.3d 88,
93 (2d Cir. 1995) (appellate courts do not generally hold pro se litigants rigidly to
formal briefing standards set forth in Rule 28); cf. McCottrell v. EEOC, 726 F.2d 350,
351 (7th Cir. 1984) (appellate court may dismiss pro se appeal where brief submitted
“contains no identifiable argument”). We deny Kirby’s pending motions, and we find
his assertion of bias below to be unfounded and meritless. See 28 U.S.C. § 455
(recusal); Liteky v. United States, 510 U.S. 540, 555 (1994) (bias); Bistram v. United
States, 248 F.2d 343, 347-48 (8th Cir. 1957) (transcript).
We will not review the denial-of-medical-care claim, because for reversal
Kirby merely asserts that a certain medical report, which was not made a part of the
record, “speaks for itself.” See LoSacco, 71 F.3d at 93 (appellate courts need not
manufacture claims of error for pro se appellant).
As to the damages award for Kirby’s medical expenses, the district court based
it on a pharmacy bill, which was the only evidence of medical expenses proffered by
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Kirby, and we conclude that the court properly declined to speculate as to the cost of
other medical expenses in the absence of evidence. See Comcast of Ill. X v.
Multi-Vision Elecs., Inc., 491 F.3d 938, 947 (8th Cir. 2007) (damages may not be
determined by mere speculation or guess, but they may be subject to just and
reasonable inference).
As to damages for pain and suffering and punitive damages, however, we note
that Kirby requested such damages in the district court (see R. Doc. 64 at 4-5), but did
not obtain a ruling. Because a section 1983 plaintiff may be awarded damages for
pain and suffering, see Jackson v. Crews, 873 F.2d 1105, 1109 (8th Cir. 1989), and
may be awarded punitive damages in certain circumstances, see Smith v. Wade, 461
U.S. 30, 56 (1983) (outlining standard), we remand for the court to address these
requests.
Accordingly, we affirm the district court’s judgment on the denial-of-medicalcare claim and its damages award for medical expenses, and we remand for the
district court to determine in the first instance whether to award damages for pain and
suffering or punitive damages.
______________________________

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