12-4246-pr
Hogan v. Fischer

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                   August Term 2013

              (Submitted: October 7, 2013        Decided: December 20, 2013)

                                 Docket No. 12-4246-pr
                                _____________________

                                     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.

                                _____________________

                   ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE WESTERN DISTRICT OF NEW YORK
                               _____________________

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



             Appeal from a judgment of the United States District Court for the

Western District of New York (Michael A. Telesca, J.), dismissing the complaint

in this pro se prisoner's civil rights case. Plaintiff-appellant alleged that he was

subjected to cruel and unusual punishment when three masked correction

officers sprayed him with an apparent mixture of fecal matter, vinegar, and

machine oil. The district court granted defendants-appellees' motion to dismiss,

concluding that plaintiff-appellant had not "demonstrated" more than a de

minimis injury. The district court dismissed the complaint in its entirety,

including the claims against the John Doe defendants.

             VACATED IN PART AND REMANDED.

                              _____________________

                    John Hogan, pro se, Plaintiff-Appellant, Marcy, New York.

                    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, New York, for Defendants-Appellees.

                              _____________________




                                         -2-
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.




                                         -3-
                                 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



                                        -4-
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.




1                This Court previously ruled that Hogan could proceed only with respect to "his excessive
force claim." We construe this to mean the sixth through ninth claims. Hogan identifies the following
parties as personally involved in the spraying incident: (1) John Does 2-4, the COs who entered Hogan's
cell and assaulted him; (2) CO Erhardt, who was in possession and in charge of the gallery keys; and (3)
John Does 5-6, the block hall captain and area supervisor at the time of the spraying incident.

                                                  -5-
            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



                                        -6-
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 (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



                                        -7-
(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 Claim

       1.     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 (2009) (internal quotation marks

omitted). A claim is plausible "when the plaintiff pleads factual content that



                                          -8-
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);



                                          -9-
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 (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 the conduct alleged is "sufficiently serious" to reach

constitutional dimensions. See Farmer v. Brennan, 511 U.S. 825, 834 (1994)

(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). This inquiry is "context

specific, turning upon 'contemporary standards of decency.'" Blyden v. Mancusi,

186 F.3d 252, 263 (2d Cir. 1999) (internal quotation marks omitted). While de

minimis uses of force are "necessarily exclude[d] from constitutional recognition,"

Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (internal quotation marks omitted), "when



                                        - 10 -
prison officials maliciously and sadistically use force to cause harm,

contemporary standards of decency always are violated. . . . whether or not

significant injury is evident." Hudson, 503 U.S. at 9.

      2.     Application

             The district court dismissed Hogan's complaint on the grounds that

the force used in the spraying incident was de minimis. Hogan v. Fischer, No. 09-

6225(MAT), 2012 WL 4845609, at *4 (W.D.N.Y. Oct. 10, 2012). The district court

further held that while "[s]praying someone with feces and vinegar is certainly

repulsive, . . . it is not sufficiently severe to be considered repugnant to the

conscience of mankind." Id. (internal quotation marks omitted). We disagree,

and conclude that Hogan stated a plausible Eighth Amendment claim.

             Assuming, as we must, that the factual allegations of the complaint

are true, three prison officials wearing masks approached Hogan's cell and

proceeded to spray him with a mixture of feces, vinegar, and "some type [of]

machine oil." The substance burned Hogan's eyes and left Hogan with other

physical injuries. We are 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. Compare Samuels v. Hawkins, 157 F.3d 557,



                                         - 11 -
558 (8th Cir. 1998) (per curiam) (holding that prison official's throwing a cup of

water at prisoner was de minimis use of force) with Lawrence v. Bowersox, 297 F.3d

727, 733 (8th Cir. 2002) (holding that corrections officer's use of pepper spray on

prisoners confined to their cell was more than de minimis use of force). Such

conduct is unequivocally contrary to "contemporary standards of decency."

Whitley v. Albers, 475 U.S. 312, 327 (1986) (quoting Estelle v. Gamble, 429 U.S. 97,

103 (1976)); cf. Walker v. Schult, 717 F.3d 119, 127 (2d Cir. 2013) (stating that "we

have long recognized that unsanitary conditions in a prison cell can, in egregious

circumstances, rise to the level of cruel and unusual punishment"); Gaston v.

Coughlin, 249 F.3d 156, 166 (2d Cir. 2001) (refusing to adopt principle "that it is

not cruel and unusual punishment for prison officials knowingly to allow an area

to remain filled with sewage and excrement for days on end."); LaReau v.

MacDougall, 473 F.2d 974, 978 (2d Cir. 1972) ("Causing a man to live, eat and

perhaps sleep in close confines with his own human waste is too debasing and

degrading to be permitted.").

             Moreover, even if we were to assume arguendo that the physical

force allegedly used was de minimis -- though it was not -- spraying an inmate

with vinegar, excrement, and machine oil in the circumstances alleged here is



                                         - 12 -
undoubtedly "repugnant to the conscience of mankind" and therefore violates

the Eighth Amendment. See, e.g., Hill v. Crum, 727 F.3d 312, 323-24 (4th Cir. 2013)

("The types of actions that have been classified as 'repugnant to the conscience of

mankind' are torture, humiliation, or degradation."); Washington v. Hively, 695

F.3d 641, 643 (7th Cir. 2012) ("An unwanted touching of a person's private parts,

intended to humiliate the victim . . . , can violate a prisoner's constitutional rights

whether or not the force exerted by the assailant is significant."); United States v.

Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (holding that prison guard's repeated attacks

on prisoner, even if deemed de minimis, violated the Eighth Amendment as it was

repugnant to the conscience of mankind). When prison officials are accused of

using excessive force, "the core judicial inquiry is . . . whether force was applied

in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1991) (citing

Whitley, 475 U.S. at 320-21). Where "no legitimate law enforcement or

penological purpose can be inferred from the defendant's alleged conduct, the

abuse itself may . . . be sufficient evidence of a culpable state of mind." Boddie v.

Schnieder, 105 F.3d 857, 861 (2d Cir. 1997).




                                         - 13 -
             Hogan plausibly alleged that the prison officials had "sufficiently

culpable state of mind[s]" to give rise to an Eighth Amendment violation. Farmer

v. Brennan, 511 U.S. 825, 834 (1994). Prison officials, with their faces concealed by

brown paper bags, approached Hogan's cell at night for the sole purpose of

assaulting him with feces, vinegar, and oil. Given this context, the assault

obviously was not "a good faith effort to maintain or restore discipline," but an

attempt to "maliciously and sadistically . . . cause harm." Hudson, 503 U.S. at 7.

No reasonably perceived penological need existed for the application of such

force. See, e.g., DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2001) (holding that a

prison official's indiscriminate spraying of cells with pepper spray served no

penological purpose).

             We therefore hold that the district court erred in concluding that the

prison officials' alleged use of force was de minimis and not of the sort repugnant

to the conscience of mankind. See Griffin v. Crippen, 193 F.3d 89, 91–92 (2d Cir.

1999) (holding that district court erred by concluding as a matter of law that

prison guards' alleged assault upon a handcuffed prisoner was de minimis). The

conduct alleged in Hogan's complaint is undoubtedly a form of cruel and

unusual punishment proscribed by the Eighth Amendment.



                                         - 14 -
B.    The Claims Against the John Doe Defendants

             On appeal, the Attorney General's office argues that a remand for

further proceedings with respect to the John Doe defendants is unwarranted

because the applicable statute of limitations bars Hogan from amending his

complaint to name the John Does. We disagree.

             Section 1983 does not provide a specific statute of limitations. Thus,

courts apply the statute of limitations for personal injury actions under state law.

See Owens v. Okure, 488 U.S. 235, 249-51 (1989); Pearl v. City of Long Beach, 296 F.3d

76, 79 (2d Cir. 2002). Section 1983 actions filed in New York are therefore subject

to a three-year statute of limitations. Pearl, 296 F.3d at 79; see N.Y. C.P.L.R. § 214

(McKinney 2013).

             Generally, "'John Doe' pleadings cannot be used to circumvent

statutes of limitations because replacing a 'John Doe' with a named party in effect

constitutes a change in the party sued." Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067,

1075 (2d Cir. 1993) (internal citations omitted). John Doe substitutions, then,

"may only be accomplished when all of the specifications of Fed. R. Civ. P. 15(c)

are met." Id. Amended pleadings that meet the requirements of Rule 15(c) are

considered to "relate back" to the date of the original complaint. See Fed. R. Civ.



                                         - 15 -
P. 15(c). Rule 15(c) contains two subsections that are arguably relevant here. We

discuss each subsection in turn.

        1.      Rule 15(c)(1)(C)

                Rule 15(c)(1)(C) provides the federal standard for relation back. For

an amended complaint adding a new party to relate back under Rule 15(c)(1)(C),

the following conditions must be met:

                (1) the claim must have arisen out of conduct set out in
                the original pleading; (2) the party to be brought in
                must have received such notice that it will not be
                prejudiced in maintaining its defense; (3) that party
                should have known that, but for a mistake of identity, the
                original action would have been brought against it; and
                . . . [4] the second and third criteria are fulfilled within
                120 days of the filing of the original complaint, and . . .
                the original complaint [was] filed within the limitations
                period.

Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468-69 (2d Cir. 1995) (internal

quotations omitted) (emphasis added).2

                This Circuit has interpreted the rule to preclude relation back for

amended complaints that add new defendants, where the newly added

defendants were not named originally because the plaintiff did not know their



2                At the time that Barrow was decided, these provisions were set forth in Rule 15(c)(3). In
2007, Rule 15(c) was renumbered without any substantive change. The provisions of former Rule 15(c)(3)
are now included in Rule 15(c)(1)(C). See Krupski v. Costa Crociere S. p. A., 130 S. Ct. 2485, 2495 (2010).

                                                  - 16 -
identities. Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999); Barrow, 66 F.3d at

470. We have held that, although "Rule 15(c) explicitly allows the relation back

of an amendment due to a 'mistake' concerning the identity of the parties . . . [,]

the failure to identify individual defendants when the plaintiff knows that such

defendants must be named cannot be characterized as a mistake." Barrow, 66

F.3d at 470.

               The spraying incident took place on February 15, 2009, and Hogan

filed his complaint on May 5, 2009. "Federal law determines when a section 1983

cause of action accrues, and we have ruled that accrual occurs when the plaintiff

knows or has reason to know of the injury which is the basis of his action." Pearl,

296 F.3d at 80 (internal quotation marks and citations omitted). Defendants

argue that, because the spraying incident took place in February 2009, Hogan's

claims against the John Doe defendants are now time-barred. Therefore, under

Rule 15(c)(1)(C), Hogan may substitute named defendants for the John Doe

defendants only if an amended complaint relates back to the date of the original

filing.

               Hogan, however, cannot meet the third requirement of Rule

15(c)(1)(C). This Court's interpretation of Rule 15(c)(1)(C) makes clear that the



                                        - 17 -
lack of knowledge of a John Doe defendant's name does not constitute a "mistake

of identity." Barrow, 66 F.3d at 470. Accordingly, under Rule 15(c)(1)(C), Hogan

is time-barred from amending his complaint.

      2.     Rule 15(c)(1)(A)

             Rule 15(c)(1)(A) permits an amended pleading to relate back when

"the law that provides the applicable statute of limitations allows relation back."

This Circuit has not previously addressed whether Rule 15(c)(1)(A) applies to

§ 1983 claims against John Doe defendants. See Wilson v. City of New York, No.

03-CV-2495(RLC), 2006 WL 2528468, at *2 n.6 (S.D.N.Y. Aug. 31, 2006).

             The Rules Advisory Committee added Rule 15(c)(1)(A) in 1991 to

"make . . . clear that [Rule 15] does not apply to preclude any relation back that

may be permitted under the applicable limitations law." Fed. R. Civ. P. 15,

Advisory Comm. Notes 1991. Here, the applicable limitations law is state law.

See id. The Rules Advisory Committee directs courts to look to the "controlling

body of limitations law" -- not merely the limitations law's test for relation back.

Id. (emphasis added). "[I]f that law affords a more forgiving principle of relation

back than the one provided in this rule, it should be available to save the claim."

Id.



                                        - 18 -
            Rule 15(c)(1)(A) instructs courts, then, to look to the entire body of

limitations law that provides the applicable statute of limitations. As discussed

supra, § 1983 derives its statute of limitations from state law. Thus, under Rule

15(c)(1)(A), we must determine if New York state law provides a "more forgiving

principle of relation back" in the John Doe context, compared to the federal

relation back doctrine under Rule 15(c)(1)(C). We hold that it does.

            Unlike the Federal Rules of Civil Procedure, the New York Civil

Practice Law and Rules ("CPLR") creates a special procedure for claims alleged

against John Doe defendants. N.Y. C.P.L.R. § 1024 (McKinney 2013). Section

1024 of the CPLR reads:

            A party who is ignorant, in whole or in part, of the
            name or identity of a person who may properly be
            made a party, may proceed against such person as an
            unknown party by designating so much of his name
            and identity as is known. If the name or remainder of
            the name becomes known all subsequent proceedings
            shall be taken under the true name and all prior
            proceedings shall be deemed amended accordingly.

New York courts have interpreted this section to permit John Doe substitutions

nunc pro tunc. See Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 104 (2d Dep't

2009); Victor Auto Parts, Inc. v. Cuva, 560 N.Y.S.2d 269, 271 (Sup. Ct. Monroe Cnty.




                                       - 19 -
1990); Wilson v. 30 Broad St. Assocs., L.P., 679 N.Y.S.2d 521, 522 (Civ. Ct. N.Y.

Cnty. 1998).

               To take advantage of § 1024, a party must meet two requirements.

See Justin v. Orshan, 788 N.Y.S.2d 407, 408 (2d Dep't 2005); Maurro v. Lederman,

795 N.Y.S.2d 867, 870-71 (Sup. Ct. Richmond Cnty. 2005). First, the party must

"exercise due diligence, prior to the running of the statute of limitations, to

identify the defendant by name." Bumpus, 883 N.Y.S.2d at 104; see also Harris v.

N. Shore Univ. Hosp. at Syosett, 792 N.Y.S.2d 148, 149 (2d Dep't 2005); Justin, 788

N.Y.S.2d at 408; Luckern v. Lyonsdale Energy Ltd., 654 N.Y.S.2d 543, 545-46 (4th

Dep't 1997). Second, the party must describe the John Doe party "in such form as

will fairly apprise the party that [he] is the intended defendant." Bumpus, 883

N.Y.S.2d at 104; see also Lebowitz v. Fieldston Travel Bureau, Inc., 581 N.Y.S.2d 302,

303 (1st Dep't 1992).

               Here, Hogan clearly meets the first § 1024 requirement. Hogan

diligently sought to identify the John Doe defendants described in his complaint,

and he submitted multiple discovery requests to the Attorney General's office as

counsel for the named defendants. The named defendants, in turn, failed to

respond fully to Hogan's requests. Even with the assistance of the district court,



                                         - 20 -
Hogan apparently has not received discovery responses from defendants that

would allow him to identify the John Does definitively, and his last request for

confirming information went unanswered. Hogan has clearly "exercise[d] due

diligence, prior to the running of the statute of limitations, to identify the

defendant[s] by name." Bumpus, 883 N.Y.S.2d at 104.

                Hogan likewise meets the second § 1024 requirement. His complaint

describes with particularity the date, time, and location of the alleged spraying

incident. His complaint also includes substantial detail concerning the

appearance of his alleged assailants. Hogan's complaint, in short, provides

enough detail to give notice to the John Does that they are the intended

defendants.3




3                 The Attorney General also argues that the claims against CO Erhardt, the one named
defendant allegedly involved in the spraying incident, should be dismissed because Hogan has
inadequately alleged his personal involvement. The district court did not address Erhardt's personal
involvement in the spraying incident. We decline to address it in the first instance, but note that the
complaint could be liberally construed to allege that Erhardt controlled access to the cell block, allowed
the John Doe guards access to Hogan's cell, and then failed to intervene when it became apparent that the
guards were violating Hogan's rights. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013)
(citing Colon v. Coughlin, 58 F.3d 864, 873 (2d Cir. 1995) (noting that personal involvement of supervisory
defendant may be shown by evidence that defendant participated directly in the alleged constitutional
violation, defendant was grossly negligent in supervising subordinates who committed the wrongful
acts, or defendant exhibited deliberate indifference to rights of inmates by failing to act on information
indicating unconstitutional acts were occurring). We express no view on the extent to which the Supreme
Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), "may have heightened the requirements for
showing a supervisor's personal involvement with respect to certain constitutional violations," id. at 139,
or whether Hogan's current complaint plausibly alleges personal involvement.

                                                  - 21 -
            Accordingly, we hold that Hogan's claims against the John Doe

defendants are not time-barred. On remand, Hogan should be permitted to

continue his efforts to identify the John Doe defendants named in the sixth

through ninth claims of the complaint and, if he succeeds in doing so, the district

court shall grant him leave to amend his complaint to name them. The district

court may wish to consider whether it would be helpful to appoint counsel for

Hogan to assist him in pursuing the necessary discovery, drafting any

appropriate amendments to the complaint, and prosecuting his claim.

                                  CONCLUSION

            For the reasons set forth above, we VACATE IN PART the

judgment of the district court and REMAND for further proceedings not

inconsistent with this opinion.




                                       - 22 -
