Judge Denny Chin
State inmate Hogan’s pro se civil rights action alleged that on Feb. 15, 2009, three masked guards sprayed him—while in his cell—with a mixture of feces, vinegar, and machine oil in retaliation for his report of several prior assaults. In addition to significant psychological harm, the incident burned Hogan’s eyes and caused recurring eye and skin problems. District court dismissed Hogan’s complaint, with prejudice, for failure to state a claim. It deemed the force used in the spraying incident “de minimis” and concluded that, although “repulsive” spraying someone with feces and vinegar was “not sufficiently severe to be considered repugnant to the conscience of mankind.” Second Circuit partly vacated the judgment of dismissal. Hogan’s complaint plausibly alleged cruel and unusual punishment violating his rights under the Eighth Amendment. Nor was the circuit willing to accept, as a matter of law, the proposition that spraying an inmate with a mixture of feces, vinegar and machine oil constituted a de minimis use of force. Further, compared to the federal relation back doctrine under Federal Rule of Civil Procedure 15, New York Civil Practice Law and Rules §1024 permitted Hogan to amend his complaint to name certain John Doe defendants.
