Hogan v. Fischer

• Decision Date: 20 December 2013
• Docket Number: Docket No. 12–4246–pr.
• Citation: 738 F.3d 509
• Parties: John HOGAN, Plaintiff–Appellant, v. Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, John Does 1–7, Correction Officers, Jane Does 1–2, Nurses, Defendants, James T. Conway, Superintendent, Paul Chappius, Deputy Superintendent for Security, Edwin Mendez, Sergeant, Craig Balcer, Sergeant, Christopher J. Erhardt, Correction Officer, Gary J. Pritchard, Correction Officer, Kevin J. Gefert, Correction Officer, Nicholas P. Lanni, Correction Officer, Nicholas J. Piechowicz, Correction Officer, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

738 F.3d 509

John HOGAN, Plaintiff–Appellant,

v. Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, John Does 1–7, Correction Officers, Jane Does 1–2, Nurses, Defendants,James T. Conway, Superintendent, Paul Chappius, Deputy Superintendent for Security, Edwin Mendez, Sergeant, Craig Balcer, Sergeant, Christopher J. Erhardt, Correction Officer, Gary J. Pritchard, Correction Officer, Kevin J. Gefert, Correction Officer, Nicholas P. Lanni, Correction Officer, Nicholas J. Piechowicz, Correction Officer, Defendants–Appellees.

Docket No. 12–4246–pr.

United States Court of Appeals, Second Circuit.

Submitted: Oct. 7, 2013.

Decided: Dec. 20, 2013.

John Hogan, Marcy, NY, pro se.

Jonathan D. Hitsous, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Nancy A. Spiegel, Senior Assistant Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for Defendants–Appellees.

Before: LYNCH, CHIN, and CARNEY, Circuit Judges.

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, J.) 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 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] happen[ed] 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 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. The Eighth Amendment Claim1. Applicable Law

a. Pleading Standards and Standard of Review

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “In ruling on a motion pursuant to Fed.R.Civ.P. 12(b)(6), the duty of a court is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir.2010) (internal quotation marks omitted). “The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006).

Where, as here, the complaint was filed pro se, it must be construed liberally with “special solicitude” and interpreted to raise the strongest claims that it suggests. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.2011) (internal quotation marks omitted). Nonetheless, a pro se complaint must state a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 73 (2d Cir.2009).

We review de novo a district court's decision on a motion to dismiss or for judgment on the pleadings, accepting all factual allegations as true and drawing all reasonable inferences in the plaintiff's favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (reviewing a Rule 12(b)(6) dismissal); see also Johnson v. Rowley, 569 F.3d 40, 43–44 (2d Cir.2009) (noting that Rule 12(b)(6) standards of review apply to Rule 12(c) motions).

b. Eighth Amendment

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. Although not “every malevolent touch by a prison guard gives rise to a federal cause of action,” Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), inmates “have the right to be free from the unnecessary and wanton infliction of pain at the hands of prison officials,” Romano v. Howarth, 998 F.2d 101, 104 (2d Cir.1993) (internal quotation marks omitted).

To state an Eighth Amendment excessive force claim, an inmate must establish that...