Hogan v. Fischer

738 F.3d 509, 2013 WL 6697908, 2013 U.S. App. LEXIS 25337
CourtCourt of Appeals for the Second Circuit
DecidedDecember 20, 2013
Docket19-2772
StatusPublished
Cited by791 cases

This text of 738 F.3d 509 (Hogan v. Fischer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hogan v. Fischer, 738 F.3d 509, 2013 WL 6697908, 2013 U.S. App. LEXIS 25337 (2d Cir. 2013).

Opinion

CHIN, Circuit Judge:

In this pro se prisoner’s civil rights case, plaintiff-appellant John Hogan, an inmate at the Attica Correctional Facility (“Attica”), alleges that three masked correction officers (“COs”) sprayed him while he was in his cell with an unknown substance, apparently a mixture of fecal matter, vinegar, and machine oil. The United States District Court for the Western District of New York (Telesca, /.) granted defendants-appellees’ motion to dismiss for failure to state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c). Although defense counsel had not moved on behalf of the John Doe defendants, the district court dismissed the complaint in its entirety, with prejudice. Hogan appeals.

We conclude that Hogan’s complaint plausibly alleged violations of his constitutional rights. We conclude further that the applicable statute of limitations does not preclude Hogan from amending his complaint to name certain John Doe defendants. We therefore vacate the judgment *513 of dismissal in part and remand for further proceedings.

BACKGROUND

A. The Facts

For purposes of this appeal, the facts alleged in Hogan’s complaint are assumed to be true. They may be summarized as follows.

Hogan is an inmate at Attica, a maximum security prison operated by the New York State Department of Corrections and Community Supervision. On February 15, 2009, at approximately 10:35 p.m., as Hogan describes:

3 Officers with brown paper bags over their heads sprayed an unknown substance into my cell, on my body, in my mouth, in my eyes and nose. This was a vinegar mix with what appeared to be feces. There was also some type [of] machine oil.

Pl.’s Compl. at Ex. 17. Other inmates reported seeing three COs masked in brown paper bags in the area that evening. A fourth CO, Christopher Erhardt, had “participated in the spraying assault by opening the gallery gate ..'. allowing [Hogan] to be assaulted.” ’ Id. at 24. The COs were retaliating against Hogan for reporting several prior assaults.

The substance burned Hogan’s eyes, and he sustained a “cut/scratch on [his] neck ... [which] happened] during the struggle for the [spray] nozzle,” as well as other injuries. Id. at Ex. 18. Following the incident, Hogan suffered from recurring problems with his eyes and his skin. The incident also caused him significant psychological harm.

B. Proceedings Below

On May 5, 2009, proceeding pro se, Hogan filed a § 1983 complaint against various Attica correction officers, including seven “John Doe” COs, asserting sixteen claims. The sixth through ninth claims asserted Eighth Amendment violations based on the use of excessive force in the alleged spraying incident. 1

1. Discovery

In an order dated May 22, 2009, granting Hogan in forma pauperis status, the district court noted “the serious nature of [Hogan’s] allegations” and directed Hogan to try to identify the John Does through discovery as soon as possible. Over the course of three years, Hogan made repeated efforts to identify the John Does, including submitting over ten discovery demands and multiple requests under New York’s Freedom of Information Law.

Defendants failed to fully respond to Hogan’s discovery requests, as' they objected to Hogan’s requests as irrelevant or unlikely to lead to the discovery of admissible evidence. While they provided Hogan with certain documents, Hogan was unable to identify the John Doe defendants. Hogan moved for discovery sanctions, for extensions of time to identify the John Does, and to compel’ discovery.

In October 2010, the Attorney General’s office provided names of certain correction officers and one nurse, in response to Hogan’s requests for identification of the John Doe and Jane Doe defendants. Hogan was not satisfied with defendants’ discovery responses, apparently believing that some of the John Doe defendants had *514 not been correctly identified. Hogan stated that he needed further information— such as photographs of tattoos — to verify the identifications. Defendants never provided Hogan with this information.

2. The District Court’s Decision and Order

In May 2010, amidst the parties’ ongoing discovery disputes, defendants moved to dismiss Hogan’s claims against the named defendants, pursuant to Rules 12(b)(6) and 12(c). The motion was filed by the Attorney General’s office only on behalf of the named defendants. Indeed,' the Attorney General’s office specifically stated that it was not representing the John and Jane Doe defendants, and it stated that it was not moving against the claims that named only John and Jane Doe defendants. In a decision and order dated October 10, 2012, the district court granted defendants’ motion to dismiss, dismissing Hogan’s complaint in its entirety— even though the motion did not seek dismissal of the claims naming only the John and Jane Doe defendants — and denied as moot Hogan’s pending motions, including his most recent motion to compel discovery. Hogan v. Fischer, No. 09-6225(MAT), 2012 WL 4845609, at *6 (W.D.N.Y. Oct. 10, 2012).

The district court found that Hogan had not “demonstrated” that the John Does had applied more than a de minimis use of force. Id. at *4. The district court noted that the “Eighth Amendment’s prohibition of cruel and usual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id. (citing Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). The court cited two district court cases in holding that spraying a person with feces and vinegar was a de minimis use of force and not of a sort repugnant to the conscience of mankind. Id. (citing Tafari v. McCarthy, 714 F.Supp.2d 317, 341 (N.D.N.Y.2010), and Fackler v. Dillard, No. 06-10466, 2006 WL 2404498, at *1 (E.D.Mich. Aug. 16, 2006)). Concluding that Hogan’s constitutional rights were not violated, the district court held that CO Erhardt could not be held liable for failing to protect Hogan from the alleged assault. The district court dismissed the complaint “in its entirety with prejudice” and directed the Clerk of the Court to close the case. Id. at *6-*7.

Judgment was entered on October 11, 2012. This appeal followed.

DISCUSSION

We consider first the district court’s dismissal of the Eighth Amendment claim and second the dismissal of the claims against the John Doe defendants.

A.

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738 F.3d 509, 2013 WL 6697908, 2013 U.S. App. LEXIS 25337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hogan-v-fischer-ca2-2013.