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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, January 3, 2014

If it's disgusting, it violates the Eighth Amendment

This one is pretty nasty. The plaintiff is an inmate. He claims that three corrections officers put bags over their head and sprayed him with a mixture of feces, vinegar and machine oil. This substance reached plaintiff's mouth, nose and eyes. The Court of Appeals says he has a case under the Eighth Amendment's prohibition against cruel and unusual punishment.

The case is Hogan v. Fischer, decided on December 20. Inmates do have rights. Under Supreme Court case law, to win an Eighth Amendment claim, the plaintiff has to show he was subjected to "the unnecessary and wanton infliction of pain at the hands of prison officials." Minimal uses of force don't count. But malicious and sadistic attacks that violate contemporary standards of decency do violate the Constitution. The district court threw out Hogan's case, holding that the noxious spray was "not sufficiently severe to be considered repugnant to the conscience of mankind." The Court of Appeals (Chin, Lynch and Carney) sees it differently, and Hogan (handling the case pro se) wins his appeal.

The Court cannot accept that this was a de minimus use of force. It's simply too disgusting. Of course, the cases don't actually say that, but that's what they ultimately stand for. So while one Circuit court decision says that throwing a cup of water at an inmate is not enough for a lawsuit, another case says that using pepper spray on an inmate for no reason was not de minimus. There are also cases that say that forcing inmates to sleep too close to their own human waste can violate the Constitution.

The Court factors in whether there was any reason for the officers to spray the inmate. If there was none, then it supports his claim. This attack looked premeditated. The officers concealed their faces with paper bags and did this at night. The Court of Appeals probably understates the case by stating that "the assault obviously was not 'a good faith effort to maintain or restore discipline' but an attempt to 'maliciously and sadistically ... cause harm.'" A shorthand summary of the holding is, the more disgusting the attack, the more likely it violates the Eighth Amendment.

Whether or not the feces attack really happened remains to be proven. This case was dismissed under Rule 12, so these are just allegations, and the parties now head to discovery. But one tipoff that the allegations might be true is evidence that the State has resisted identifying the "John Doe" defendants that Hogan named in the complaint. That resistance allows Hogan to try to name them even though the three-year statute of limitations has now expired. Normally, you have three years to name the John Does. But the Federal Rules of Civil Procedure allow the federal courts to take into account state law principles in determining whether the identifications "relate back" to the timely filing of the original complaint. Since state law allows plaintiffs to do so if they diligently tried to name the John Does and they identify the John Does with enough particularity that the real defendant has reason to know that he's a John Doe, that loophole helps Hogan, who tried like hell to identify these guys but was unable to do so because the named defendants did not fully respond to his discovery demands that would have formally identified them.