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Second Circuit: Spraying with Feces Not De Minimis Injury; $7,000 Settlement After Remand

Second Circuit: Spraying with Feces Not De Minimis Injury; $7,000 Settlement After Remand

by Mark Wilson

The Second Circuit Court of Appeals held on December 20, 2013 that spraying a prisoner with a mixture of feces, vinegar and oil is not a de minimis injury

New York state prisoner John Hogan was confined at the Attica Correctional Facility on February 14, 2009 when he claimed three guards with their faces concealed by brown paper bags sprayed vinegar, feces and machine oil on his body and in his mouth, eyes and nose in retaliation for his having reported several other staff assaults. As a result, he suffered recurring eye and skin problems plus significant psychological harm.

On May 5, 2009, Hogan filed suit in federal court against several named and John Doe guards. Despite numerous discovery and public records requests over a three-year period, he was unable to identify the guards who sprayed him.

Pursuant to FRCP 12(b)(6) and 12(c), the defendants moved to dismiss Hogan’s claims against only the named guards in his complaint. The Attorney General’s office expressly stated the motion was not brought on behalf of any John Doe defendants. Nevertheless, the district court dismissed the action in its entirety, and denied Hogan’s pending discovery motions as moot.

The district court concluded “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.”

The Second Circuit disagreed, holding that Hogan had stated a cognizable Eighth Amendment claim. The appellate court was “unwilling to accept, as a matter of law, the proposition that spraying an inmate with a mixture of feces, vinegar, and machine oil constitutes a de minimis use of force.” In fact, such an abusive action “in the circumstances alleged here is undoubtedly ‘repugnant to the conscience of mankind’ and therefore violates the Eighth Amendment.”

The Court of Appeals also rejected the defendants’ argument that expiration of the statute of limitations barred Hogan from amending his complaint on remand to name the Doe defendants.

The Court found that under FRCP 15(c)(1)(A), the John Doe claims related back to the date the initial complaint was filed, because New York Civil Practice Law and Rules § 1024 permits such substitutions nunc pro tunc.

Thus, the Second Circuit concluded that Hogan’s Doe claims were not time-barred, and he should be allowed to continue his efforts to identify those defendants and be granted leave to amend to name any unknown defendants he is able to identify. The appellate court further suggested that it may be helpful for the district court to appoint counsel to assist Hogan “in pursuing the necessary discovery, drafting any appropriate amendments to the complaint, and prosecuting his claim.” See: Hogan v. Fischer, 738 F.3d 509 (2d Cir. 2013).

Following remand, the case settled on September 12, 2014 for $7,000 with no admission of liability by the defendants. Hogan litigated the case pro se, including on appeal.


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Related legal case

Hogan v. Fischer