Razzaq (ID 110631) v. Burton et al
MEMORANDUM AND ORDER ENTERED: Plaintiff's motion for reconsideration 16 is liberally construed as a motion to alter or amend judgment and is denied. Signed by U.S. Senior District Judge Sam A. Crow on 05/12/17. Mailed to pro se party Murad Razzaq by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 16-3214-SAC-DJW
BURTON, et al.,
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for
reconsideration (Doc. #16). Plaintiff seeks relief from the Court’s
Memorandum and Order of March 3, 2017, dismissing this matter for
failure to state a claim for relief.
The Court liberally construes the motion for reconsideration as
a motion to alter or amend judgment filed under Rule 59(e) of the
Federal Rules of Civil Procedure. Relief under Rule 59(e) is available
only in limited circumstances, namely, where the movant shows: “(1)
an intervening change in the controlling law, (2) new evidence [that]
previously [was] unavailable, and (3) the need to correct clear error
or prevent manifest injustice.” Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000).
Here, plaintiff claims the Court erred in holding that verbal
abuse directed at him by a corrections office was insufficient to state
a claim for relief. Plaintiff relies on Beal v. Foster, 803 F.3d 356
(7th Cir. 2015). In that case, the Seventh Circuit overturned a
district court’s order finding that verbal harassment directed at a
prisoner by a prison guard could not rise to cruel and unusual
The Beal court found that the guard’s actions, which included
telling the plaintiff to place his penis inside another prisoner but
also repeatedly urinating in view of the plaintiff while smiling at
him, extended beyond “simple verbal abuse” and was sufficient to state
a claim for relief.
However, the Beal court also recognized that “[s]imple or
complex, most verbal harassment by jail or prison guards does not rise
to the level of cruel and unusual punishment.” Beal, 803 F.3d at 358.
The Tenth Circuit likewise recognizes that there may be a
threshold of extreme verbal abuse that violates a prisoner’s
constitutionally protected rights. See Alvarez v. Gonzales, 155
Fed.Appx. 393, 396 (10th Cir. 2005)(citing Northington v. Jackson,
973 F.2d 1518, 1524 (10th Cir. 1992))(“Mere verbal threats or
harassment do not rise to the level of a constitutional violation
unless they create ‘terror of instant and unexpected death.’”)
In Wherry v. Gunter, 2016 WL 3676796 (W.D. Okla. July 6, 2016),
the U.S. District Court for the Western District of Oklahoma held that
verbal abuse addressed to a prisoner, including referring to him as
“Itsy Bitsy Teeny Weeny”, a term the plaintiff argued was a derogatory
term used to identify him as a homosexual prisoner, did not give rise
to a claim for relief under the Eighth Amendment. The Wherry court
stated “limited commentary by prison guards to prisoners has been
found not to be objectively sufficiently serious, when unaccompanied
by physical conduct, to give rise to an Eighth Amendment violation.”
Wherry, 2016 WL 3676796 at *3.
Here, as in Wherry, the verbal abuse of which plaintiff complains
consists of remarks to him by a guard on two occasions. Plaintiff does
not allege any physical conduct or any serious threat to his immediate
safety, and the Court concludes the dismissal of his case was not in
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
reconsideration (Doc. #16) is liberally construed as a motion to alter
or amend judgment and is denied.
IT IS SO ORDERED.
This 12th day of May, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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