Kirby v. Roth et al
MEMORANDUM OPINION AND ORDER. Signed by Honorable James R. Marschewski on December 27, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DERROL DEE KIRBY, III
Civil No. 06-2168
JOHN ROTH, Ex-Chief of Police, Barling, Arkansas
Police Department; LARRY MERRILL1, next in charge
under Police Chief, Barling Police Department;
CITY OF BARLING; KEVIN DOUGAN,
Barling Police Department Patrolman; JOHN
BARBOR, Barling Police Department Patrolman
MEMORANDUM OPINION AND ORDER
Derroll Dee Kirby, III (Plaintiff) filed this pro se civil rights action under 42 U.S.C. § 1983
in the Eastern District of Arkansas. It was transferred to this district on September 21, 2006. Order,
ECF No. 5. Plaintiff’s Complaint was filed in forma pauperis (IFP). Order, ECF No. 6. This case
was dismissed for failure to prosecute on August 27, 2008. Order, ECF No. 34. However, the case
was reopened on July 17, 2009. Order, ECF. No. 36. Following a bench trial, a Memorandum
Opinion and Order and separate Judgement were entered in this case on November 9, 2010. ECF
Nos. 72, 73.
The matter is now before the undersigned on consent of the parties. Consent, ECF No. 16.
By mandate of the United States Court of Appeals for the Eighth Circuit, ECF No. 84, this case has
been remanded back to the undersigned to determine in the first instance whether to award damages
for pain and suffering or punitive damages. Id. To this end, a supplemental bench trial on the issues
At trial, Defendants moved to amend Defendant Larry Merchant’s name to Defendant Larry Merrill. The
motion was granted, and the Clerk of Court is directed to amend the name of record for this defendant.
of damages for pain and suffering and punitive damages was held on October 6, 2011.
Plaintiff subsequently filed a Motion to Reopen Case and Court Proceedings. ECF No. 102.
In this motion, Plaintiff states certain policies have been provided to counsel from Defendants, and
that if Plaintiff had been aware of the policies he could have stated new claims and new legal
theories. Plaintiff requests to be able to reopen the case, the Court assumes for the purpose of raising
these new claims; to make the ordinances part of the record; and in the alternative, to be allowed to
take a deposition of the Defendants on the issue of the policies for submission to the Court.
The Motion to Reopen the Case, ECF No. 102, is DENIED. More than adequate time for
discovery has been allowed in this matter. There is no indication these policies, or draft/proposed
policies, could not have been requested prior to this late stage of the proceeding. Moreover, this case
is before the Court only on the issues of punitive damages and for damages for pain and suffering.
This Court requested the materials presented by the Defendants, ECF No. 101, which includes the
policies referred to by the Plaintiff. The Court will consider those policies as is appropriate to this
matter. No further deposition on that matter is necessary or warranted.
I. Background and Witnesses Presented
A bench trial was initially held before the undersigned on April 15, 2010. The evidence
presented in that bench trial was recounted in this Court’s prior Memorandum Opinion and Order,
and will not be included herein. See ECF No. 72.
At the supplemental bench trial regarding damages, testimony was presented from the
following witnesses in the following order: (1) Derrol Dee Kirby, III, (2) Danielle Ingram, (3) Shirley
Ingram, (4) Rick Cagle, (5) John Roth, (6) John Miller, (7) Kevin Dougan, (8) Larry Merrill and (9)
In addition to the testimony of witnesses, the following exhibits were also admitted: Plaintiff
submitted exhibits numbered one through six.
Below is a summary of the testimony presented by each witness:
A. Plaintiff Derrol Dee Kirby
Plaintiff testified that when he attempted to leave the scene of a traffic stop, the details of
which are recounted in the prior Order of this Court, ECF No. 72, he was shot by two officers
simultaneously with Taser guns. According to Plaintiff, there were four wires attached to him from
the Taser guns. The result of being tased in this matter led to excruciating pain and a loss of muscle
control. Plaintiff went to the ground head-first, to an asphalt surface, when he was stunned by the
Taser guns. He had no muscle control to submit his hands for handcuffs, as was requested by the
officers. Plaintiff testified he was tased again, and a physical altercation followed, before he was
placed in handcuffs. Plaintiff could not identify which officer was the one who placed him in
handcuffs. The physical altercation involved Plaintiff and the officers rolling down a small hill, and
some of the altercation continued in a ditch at the bottom of that hill.
While in the ditch, Plaintiff was agin tased by two stun guns being placed on his stomach,
while Defendant Roth choked him. Plaintiff testified he knew Defendants Barber and Merrill each
had tased him, at least on one occasion.
Upon being escorted back up the hill, Defendant Dougan carried Plaintiff up the hill and
jerked Plaintiff three times from the ditch to the side of the road and eventually slammed Plaintiff
into the tire of a police car.
Plaintiff testified that if he had been asked to stop from leaving the scene, he would have
stopped, but such a command was never given. Plaintiff also testified that the traffic stop was
“peaceful” until the Taser deployment. Plaintiff did agree that he had refused to consent to a patdown search, prior to being tased. After the incident, Plaintiff testified was unable to take care of
his cattle and his self and suffered considerable pain. Specifically, Plaintiff had difficulty sleeping
and was uncomfortable in any position for several days due to bruising on his body.
B. Danielle Ingram
Danielle Ingram is Plaintiff’s girlfriend, and was present at the incident at issue. Ingram was
placed under arrest before the altercation with Plaintiff began, and she was physically placed in
Defendant Dougan’s police car, allowing her a view of the entire scene.
Ingram agreed that Barbor and Merrill both used Taser guns on Plaintiff, causing him to fall
flat on his face. Once the Taser guns were deployed, the officers did nothing, while Plaintiff
remained on the ground for several seconds. Plaintiff got up and began to pull the Taser barbs out
from where they had hit him. Ingram stated the officers were in no hurry, and had more than enough
time to cuff Plaintiff after the first Taser deployment, but did not do so.
During the next altercation, Plaintiff went to the ground a second time, and attempted to get
away from the officers. Ingram saw Merrill tase Plaintiff again. Plaintiff then went to the ditch,
which was down a small hill from where the altercation began. Defendant Dougan brought Plaintiff
back up the hill, and was pulling him up the hill with a jerking motion. Ingram testified the driver’s
side door was open and she could hear Dougan tell Plaintiff it was “too bad” the cameras, which
were mounted in the police car, were not on. Ingram believed this comment was made to note that
the officers were acting inappropriately and they knew their actions were not recorded.
C. Shirley Ingram
Shirley Ingram is Danielle Ingram’s mother, and saw Plaintiff within a few days of the
incident. She testified that Plaintiff could not move his arms, was helpless, and that Danielle Ingram
had to put her full attention to assisting and taking care of Plaintiff because he was unable to care
for himself due to his injuries. Shirley Ingram testified it was months after the incident before
Plaintiff could care for himself.
Plaintiff was unable to pick up his infant child, was sore when he moved, but could raise his
arms, although he had difficulty even raising his arms to place them on an arm-chair. Shirley Ingram
also saw facial bruises. Plaintiff was more able to move freely after a few weeks had passed, but his
difficulties as a whole continued for several months.
D. Rick Cagle
Rick Cagle is a neighbor to Plaintiff, who saw Plaintiff the same day Plaintiff was released
from the Sebastian County Detention Center. When he came to Plaintiff’s home that day, Danielle
Ingram was crying and clearly upset as she attempted to assist Plaintiff while he was in the bathroom,
trying to get cleaned up upon his return home from the detention center. Cagle saw “knots” all over
Plaintiff’s body, red marks, and could tell Plaintiff was in considerable pain.
Cagle assisted Plaintiff in feeding Plaintiff’s cattle for four months, and saw Plaintiff at least
once a week during this time, as Plaintiff was not physically able to perform this work himself.
E. John Roth
John Roth was the Chief of Police for the City of Barling, Arkansas, during the incident in
question. Plaintiff was already tased in the initial incident before Roth arrived on the scene. Roth
believes the actions of his officers were proper.
The Taser used on Plaintiff was a X26 from Taser Industry. Roth did not know when the
Taser was first used, or if it could record uses. However, it utilized a five-second burst of 50,000
volts through a cartridge. Roth testified there were only two cartridges on the scene - one from
Barber and one from Merrill, and thus Plaintiff was only possibly shot twice during the incident.
Once a cartridge was deployed, it was used up. The Taser utilized a “barb” system – where, when
deployed, barbs would be ejected and would embed themselves in the skin of the target and the
voltage would be carried along a wire that connected the barbs to the Taser gun itself. Another
“shot” could be administered if the wires were still attached. Also, the Taser could be used in a
direct contact with the suspect , also called a “drive stun” mode. Roth testified he did not carry a
Taser and was not trained or certified to do so.
Further, Roth testified that a the time he was tased, Plaintiff was going to be placed in the
back seat of the patrol car for officer safety, so he would not be out on the street. Roth also testified
there was no written policy in effect for Taser deployment at the time of the incident. However, the
verbal policy was to use the Taser before any hand-to-hand contact with a suspect. Taser guns had
been used before and after this incident.
F. John Miller
John Miller was involved in an incident with Defendant Dougan in April of 2010. Miller is
an Army veteran, having served for eight years. Miller lived in Barling, and on April 16, 2010,
Dougan came to his home to inquire about a go-cart which was in Miller’s yard. At the time Dougan
arrived, Miller was outside the home on his porch. Dougan asked Miller to provide identification,
and Miller went into the home to retrieve it. At the time, Miller was also engaged in a phone call.
While Miller was retrieving the identification as requested, Dougan slammed the door with his hand
and pushed Miller against the wall. At this time, Miller had a leg brace and also was walking with
a cane due to a leg injury.
Dougan then told Miller he was running or fleeing from the police. Dougan pulled his Taser
gun and told Miller to get back into his chair. Without any warning, orders, or telling Miller he was
under arrest, Miller was tased in the back by Dougan. No handcuffs were placed on Miller at that
time, and Dougan re-loaded the Taser and shot Miller two more times. Miller further testified that
while he was in obvious pain, Dougan would smile.
During the altercation, Miller took three steps to his front door, and told the children in his
home to go to the back room. Miller then went to the back door, when Dougan charged in, walked
into Miller’s living room, and fired his Taser gun, nearly missing a fourteen year old. Miller was
grabbed at the throat, and picked up off ground. He was shot with the Taser again from the front,
and was having seizures as a result of the altercation. Miller was charged with two counts of battery
on an officer and with resisting arrest and fleeing, but all charges were dropped.
G. Kevin Dougan
Kevin Dougan testified that he was attempting to arrest Plaintiff when he deployed his Taser.
Dougan was trained on the use of his Taser, and was trained to use it for both officer safety and for
safety of the public. Dougan testified that officer safety was an issue because Plaintiff was curling
his fists and cursing, was intoxicated, and was becoming a danger to himself and others. At the time,
Dougan felt he used necessary force, and there were no written policies in place specific to the use
of the Taser.
Dougan also refuted the testimony of John Miller, stating that Miller was attempting to flee,
was being disorderly and disruptive to Dougan’s investigation at the time of the incident with Miller.
Dougan also stated he only used the force necessary on Miller to effect arrest, and that included soft
physical strikes to gain control of Miller.
H. Larry Merrill
Defendant Merrill is currently with the Paris, Arkansas, police department, but he did work
for the Barling, Arkansas police department during the relevant time. At that time, he carried a Taser
and still carries one. During the incident with the Plaintiff, he carried a Taser X26. According to
Merrill, the Taser X26 can not record with video and leaves no “log” of its use.
Merrill stated he deployed the Taser on Plaintiff during the incident at issue because Plaintiff
was being disorderly, refusing commands, refused a pat-down search and was moving toward a busy
roadway. Before deploying the Taser, Merrill intended to arrest Plaintiff for being disorderly, but
did not tell Plaintiff that Plaintiff was under arrest at the time. Merrill estimated that approximately
30-45 minutes elapsed from the initial stop to the pat-down request.
Merrill stated there was no specific written Taser policy at the time of the incident, he was
to follow the use of force policy and only use enough force as necessary. He was trained to use the
Taser before physical force was applied, and considered it to be a tool of pain compliance to affect
arrest. According to Merrill’s training, a Taser could be used to affect an arrest, once the suspect was
fleeing. If a suspect was disorderly, a Taser could be used, at times, as well.
During the incident in question, Barber deployed the first Taser to Plaintiff’s back. Plaintiff
went to the pavement, but continued to resist and fight the officers from the roadway. Merrill
deployed his Taser at the top of the hill, as Plaintiff was moving down the hill to the ditch area.
I. John Barbor
Barbor agreed he was the first to use the Taser gun on Plaintiff. He told the Plaintiff that
Plaintiff was under arrest, and when Plaintiff moved into the roadway, he told Plaintiff to come back
toward him. Barbor agreed that at trial, he had not indicated that he believed Plaintiff to be under
arrest at the time the Taser was used. However, Barbor clarified that he meant Plaintiff was not
handcuffed at the time. Plaintiff was not following a lawful order to get out of the roadway and was
resisting the officers. Barbor believed that Plaintiff was a threat to the safety of the public and
himself and could be tased as a result. Moreover, Plaintiff refused to comply and made verbal and
physical gestures of threats to the officers.
Barbor also testified that under the use of force policy in effect at the time, if verbal
commands were not complied with, then the Taser could be deployed. In the instance at hand,
Barbor displayed the Taser gun as a show of force and advised Plaintiff several times that he may
be Tased if he did not follow commands of the officers.
The Court finds the credible evidence presented at the bench trial to be that Plaintiff suffered
pain from the initial use of the Taser guns – the instance found to be excessive in an earlier ruling
by this Court. Plaintiff also suffered a cut to his face, and some facial bruising and other superficial
facial injuries from where he fell into the asphalt roadway as a result of the initial Taser incident.
However, the Court also finds that the majority of Plaintiff’s injuries were incurred when he resisted
the police officers after this first incident. The resistance by Plaintiff to the commands of the officers
also is an intervening cause of his injuries, and the Court does not find that all of Plaintiff’s injuries
were proximately caused by the initial constitutional violation.
With that background, the Court turns to the issue of Plaintiff’s damages for pain and
suffering. Compensatory damages under § 1983 are governed by general tort-law compensation
theory. See Carey v. Piphus, 435 U.S. 247, 255 (1978). In Carey, the Supreme Court noted that
damages are available under § 1983 for actions “found . . . to have been violative of . . .
constitutional rights and to have caused compensable injury.” Id. (internal quotation marks and
citations omitted). The law generally provides that damages may be awarded for injuries such as
mental anguish and suffering, personal humiliation, and monetary losses. Memphis Community
School Dist. v. Stachura, 477 U.S. 299, 307 (1986) (citations omitted). However, damages may not
be awarded for the abstract or subjective value of the constitutional right at issue. See Stachura, 477
U.S. at 308; Carey, 435 U.S. at 248.
This Court has already awarded Plaintiff compensatory damages in the form of compensation
for the medication he was prescribed for his injuries, which was the entirety of the medical bills
presented to the Court for an award of actual damages. When considering the award for pain and
suffering, the Court notes that it was only the initial Taser use which was found to be excessive, and
therefore this Court should limit any pain and suffering award to those injuries caused by this initial
use, and not Plaintiff’s injuries as a whole. While it appears Plaintiff suffered more than a de
minimis injury, he was not severely injured by the initial Taser use, or by the facial injury due to his
fall from that Taser use. Therefore, the Court finds the award of $1.00 in nominal damages is
appropriate to compensate for Plaintiff’s pain and suffering. As this Court has previously found that
although it was Defendant Barbor who deployed the Taser on the Plaintiff, the remaining
Defendants, with the exception of Roth who was not present at the time of the initial Taser incident,
could be liable for failing to intervene in the use of the excessive force. Therefore, Plaintiff is
entitled to judgment in his favor on his claim for pain and suffering damages against Defendants
Barbor, Merrill and Dougan.
“[F]orce that is excessive within the meaning of the Eighth Amendment is compensable if
it causes the prisoner actual injury, even if the injury is not of great significance.” Lawrence v.
Bowersox, 297 F.3d 727, 732 (8th Cir. 2002) (quoting Howard v. Barnett, 21 F.3d 868, 873 (8th Cir.
1994)). The United States Court of Appeals for the Eighth Circuit has held that “[a]n injury
warranting nominal damages is not necessarily the result of a de minimis use of force. Stated
differently, it is possible for a use of force to be excessive and in violation of the Eighth Amendment,
and yet result in an injury having no or only nominal monetary value.” Foulk v. Charrier, 262 F.3d
687, 701 (8th Cir. 2001).
Regarding Plaintiff’s claim for punitive damages, under § 1983 punitive damages are only
recoverable against city employees sued in their individual capacities. Wilson v. Maricopa County,
463 F. Supp. 2d 987 (D. Ariz. 2006). In order to recover punitive damages, a plaintiff must show
more than “a bare violation of section 1983.” See Wade v. Haynes, 663 F.2d 778, 785 (8th
Cir.1981). He must also prove that the defendant acted “with actual knowledge that he was violating
a right ‘secured by the Constitution and laws’ or ‘with reckless disregard of whether he was . . .
violating such a right.’” Guzman v. Western State Bank, 540 F.2d 948, 953 (8th Cir. 1976); see
also Walters v. Grossheim, 990 F.2d 381, 385 (8th Cir. 1993). Punitive damages are never awarded
as a matter of right, no matter how egregious the defendant's conduct may have been, and
governmental entities are immune from liability for punitive damages under section 1983. Smith v.
Wade, 461 U.S. 30, 36, 52(1983).
Having given careful consideration to the testimony elicited at the bench trial, I conclude
Plaintiff is not entitled to an award of punitive damages. Although I concluded excessive force was
used on Plaintiff, I do not believe the evidence elicited shows the conduct was motivated by evil
motive or intent or involved reckless or callous indifference to Plaintiff’s federally protected rights.2
At most, the evidence established that the Defendants, in reacting to Plaintiff’s desire to leave the
scene and failure to submit to their commands, failed to meet the situation at hand with an
appropriate degree of force.
For the reasons stated above, the Court finds Plaintiff is entitled to judgment in his favor on
his claim for pain and suffering damages against Defendants Barbor, Merrill and Dougan, in the
amount of nominal damages of $1.00.
Finally, judgment is entered in favor of the Defendants regarding Plaintiff’s claim of punitive
IT IS SO ORDERED this 27th day of December 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE
The Court also finds the testimony of John Miller to be of little relevance to the matter at bar. The
situation with Miller occurred at a time after the incident with Plaintiff, and with Defendant Dougan. Defendant
Barbor, not Defendant Dougan, administered the excessively forceful use of a Taser in the case at bar. The incident
with Mr. Miller also occurred before this Court had ruled that the force used by Defendants against Plaintiff was
excessive. Therefore, there could have been no notice to Officer Dougan, as a result of this case, that any
modifications needed to be made to the Taser use or policy. Moreover, the testimony regarding the incident with
Mr. Miller and whether the force used was excessive is still disputed. The Court makes no ruling or comment as to
whether the Taser use in Mr. Miller’s incident was an acceptable degree of force, and specifically limits its view of
Mr. Miller and Mr. Dougan’s testimony on that matter to find only that it is of limited relevance to this case.
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