Rоnald Jerome BEAL, Plaintiff-Appellant, v. Brian FOSTER and Russell Schneider, Defendants-Appellees.
No. 14-2489.
United States Court of Appeals, Seventh Circuit.
Submitted Sept. 2, 2015. Decided Oct. 2, 2015.
7th Cir. 2015
III.
Whilе the government misjoined Dean and Daniels in a single indictment which charged some unrelated counts of bank robbery and using a firearm in connection with a bank robbery, that error was harmless. The evidеnce overwhelmingly established that Dean and Daniels robbed the First National Bank in South Holland, Illinois on August 2, 2005, and used firearms while doing so; that Daniels robbed the Bank of Lincolnwood on August 25, 2005, and used a firearm whilе doing so; and that Dean robbed the First Bank in Chicago, Illinois, on December 20, 2005. The district court, however, did not err in admitting as evidence the guns seized from Dean‘s car when he was stopped in January оf 2006, the various evidence seized from his car when he was arrested on October 7, 2005, or the cellular tower records and related testimony. Finally, the district court did not err in refusing to question the disgruntled jurоr when there was no evidence that she faced outside pressure or was incompetent to serve as a juror. For these and the foregoing reasons, we AFFIRM.
Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
POSNER, Circuit Judge.
The plaintiff, an inmate of a Wisconsin state prison, filed suit under
Neither in the district court nor in this court has the plaintiff mentioned Foster, the warden, so his dismissal from the suit was proper; not so the dismissal of Schneider.
The proposition that verbal harassment cannot amount to cruel and unusual punishment is incorrеct. Suppose a prisoner is having severe headaches and he complains about them to a prison doctor, who writes him a prescription for a powerful drug. A malicious guard lеarns of this and tells the prisoner the following lie: “the doctor didn‘t tell you, but he told me: you have incurable brain cancer and will be dead in three months. Now let me tell you what he told me are the symptoms you will be experiencing as your cancer worsens.” Or the guard, again lying, tells another prisoner: “I am sorry to have to inform you that your wife and children have been killed in a car crash.” Thе harassment in both cases is purely verbal, yet as cruel (and, one hopes, as unusual) as in cases of physical brutalization of prisoners by guards. To attempt to draw a categoricаl distinction between verbal and physical harassment is arbitrary. In short, “the alleged pain [sufficient to con-
So saying, we are mindful of cases, including our decision in DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.2000), which say that “standing alone, simple verbal harassment does not constitute cruel and unusual punishment.” But it is unclear what “simple” is intended to connote. In our hypotheticаl examples, the verbal harassment is “simple” in the sense of being brief, lucid, and syntactically simple. But what is simple can also, as in our two examples, be devastating. In DeWalt the plaintiff had alleged that a prison officer had “made a series of sexually suggestive and racially derogatory comments to [the plaintiff] regarding certain female teachers at the prison schools.” Id. at 610. This vеrbal harassment was directed, to a significant degree, at the female teachers rather than at DeWalt, and second-hand harassment may be too “simple” to state a claim of сruel and unusual punishment, whereas the lies in our two hypothetical cases were aimed directly and hurtfully at the prisoner. But “simple” is the wrong word; what is meant is “fleeting,” too limited to have an impaсt.
Simple or complex, most verbal harassment by jail or prison guards does not rise to the level of cruel and unusual punishment. See, e.g., Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.1996); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986). But some does; and so consider the allegations in this case that defendant Schneider “made verbal sexual comments directed towards inmate Brian Anthony, telling Ronald Beal to place his penis inside Brian Anthony,” and that “on several prior ocсasions” Schneider had urinated in view of the plaintiff (by leaving the bathroom door open) and of other inmates, looking at them “while smiling.” These are the only allegations of the complaint, but оne can imagine how they might have been amplified had the magistrate judge not terminated the suit so abruptly. The plaintiff attempted in his appeal brief to amplify the first allegation, stating that what Schneider had said to another inmate—presumably Anthony—in the presence of the plaintiff and other inmates was that if the plaintiff would “put his Weiner [penis]” in the other inmate‘s mouth the inmate would smile.
The remarks attributed by the plaintiff to Schneider, including the “smile” references and the display of Schneider‘s own penis in his repeated public urinations (“recurrences of abuse, while not a prerequisite for liability, bear on the question of severity,” Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir.2015)) could have been understood by the inmates as implying that the plaintiff is homosexual. The fact that Schneider is a Sergeant may have amplified the impact of his remarks.
In his appellate filings the plaintiff further claims that other inmates would harass him by calling him names such as “punk, fag, sissy, and queer,” all of course derisive terms for homosexuаls and possibly inspired or encouraged by Schneider‘s comments—and we note in this connection that the complaint charges the two defendants (realistically, though, just Schneider, not the warden) with sexual harassment. Conceivably the plaintiff feared that Sergeant Schneider‘s comments labeled him a homosexual and by doing so increased the likelihood of sexual assaults on him by othеr inmates.
The plaintiff claims to have experienced severe psychological harm as a result of the incidents described in his complaint—psychological harm that induced him to
And he erred in saying that “the plaintiff alleges only verbal harassment.” Urinating isn‘t verbal. We can imagine, as suggested in the preceding paragraph, that the plaintiff was seriously upset by Schneider‘s nonverbal as well as verbal behavior, which may have made him a pariah to his fellow inmates and inflicted significant psychologicаl harm on him.
A certain latitude should be allowed in the interpretation of complaints filed by pro se prisoner litigants, such as the plaintiff in this case, whose legal knowledge and expressive skills аre palpably deficient. This is a case in which before dismissing the complaint the district court should have considered seeking clarification and amplification. In Williams v. Wahner, 731 F.3d 731, 734 (7th Cir.2013), we pointed out that “many prisoners can explain themselves orally but not in writing. They may be illiterate in English, or they may simply be such poor writers that they can‘t convey their thoughts other than orally. So we can understand a judgе‘s wanting to clarify an unclear pro se complaint by interviewing the plaintiff,” provided, as we explain in Henderson v. Wilcoxen, 802 F.3d 930, 2015 WL 5853654 (7th Cir.2015) (issued today) that a transcript or recording of the interview (which will usually be conducted tеlephonically) is made. Where appropriate, hearings can be a useful means of “trying to determine what the plaintiff is alleging.” Williams v. Wahner, supra, 731 F.3d at 734. But as Henderson and Williams both emphasize, and we take this opportunity to re-еmphasize, the interview must be limited to elucidating the plaintiff‘s claim, and not allowed to become a determination of its merits. The judge who after the hearing decides there is nothing to the prisoner‘s case, and therefore dismisses it on a section 12(b)(6) motion or at screening under
We don‘t hold that the magistrate judge in this case had to help the plaintiff. The errors that require a remand for further proceedings—that made the dismissal of the complaint premature—is the magistrate judgе‘s mistaken belief that the only harassment alleged was verbal, and his further, unexplained belief that the verbal harassment was nonactionable because it was “simple,” which without explanation is inscrutable.
REVERSED AND REMANDED