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  • WisBar News
    October 26, 2015

    Verbal Harassment Alone May Constitute ‘Cruel and Unusual Punishment’

    Deborah G. Spanic

    sad prisonerOct. 26, 2015 – While most verbal harassment may not rise to the level “cruel and unusual punishment” in a prison setting, some may, and courts need to consider all the facts when evaluating such cases.

    Ronald Jerome Beal is an inmate in a Wisconsin state prison. He filed suit against the prison’s warden and a guard, alleging that the guard, Russell Schneider, inflicted cruel and unusual punishment on him.

    Beal alleged in the complaint that Schneider made verbal sexual comments directed toward another inmate, and told Beal to “place his penis inside” the inmate, and that if he “put his weiner” in the other inmate’s mouth the inmate would smile. In addition, Beal alleged that on several occasions Schneider had urinated in view of Beal and other inmates by leaving the bathroom door open, looking at them “while smiling.”

    Other inmates would harass Beal and call him names such as “punk, fag, sissy and queer,” that were possibly inspired or encouraged by Schneider’s comments. As a result, Beal claims to have experienced severe psychological harm that caused him to seek psychiatric help several times from the prison’s clinical services division.

    Deborah SpanicDeborah Spanic, Marquette 2004, is a guest writer for the State Bar of Wisconsin. She can be reached by email.

    After Beal filed suit, pro se, in the U.S. District Court for the Eastern District of Wisconsin, the magistrate judge dismissed the complaint outright without further fact-finding, stating that “standing alone, verbal harassment of an inmate does not constitute a constitutional violation.”

    A three-judge panel for the U.S. Court of Appeals for the Seventh Circuit reversed the district court in Beal v. Foster and Schneider, No. 14-2489 (Oct. 2, 2015), concluding that the dismissal of the case was premature and should be remanded for further proceedings.


    Circuit Judge Richard Posner, in drafting the panel’s opinion, began by noting, “The proposition that verbal harassment cannot amount to cruel and unusual punishment is incorrect.

    “To attempt to draw a categorical distinction between verbal and physical harassment is arbitrary. In short, ‘the alleged pain [sufficient to constitute cruel punishment] may be physical or psychological’.”

    The panel recognized that its own precedent includes cases that say “standing alone, simple verbal harassment does not constitute cruel and unusual punishment,” but that “it is unclear what ‘simple’ is intended to connote.” Clarifying, however, the panel added, “Simple or complex, most verbal harassment by jail or prison guards does not rise to the level of cruel and unusual punishment. … But some does.”

    The issue for the court here is that the magistrate judge dismissed the compliant too soon.

    “This is a case in which before dismissing the compliant the district court should have considered seeking clarification and amplification,” the panel stated. Particularly in the case of pro se prisoner litigants, such as the plaintiff in this case, “Where appropriate, hearings can be a useful means of ‘trying to determine what the plaintiff is alleging.’

    “Expecting a pro se prisoner to be able to explain his case without some prodding, some guidance, by the presiding judicial officer will often be unrealistic. A judge who does not recruit a lawyer for the pro se in such a case should at least consider making a modest effort to assist the pro se in articulating his claims,” the panel concluded.

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