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Hogan v. Fischer

United States Court of Appeals, Second Circuit

December 20, 2013

John HOGAN, Plaintiff-Appellant,
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.

Submitted: Oct. 7, 2013.

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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

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of dismissal in part and remand for further proceedings.


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 ยง 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 ...

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