10-5132
Hathaway v. U.S. Att’y Gen.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 13th day of July, two thousand twelve,

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            GERARD E. LYNCH,
                  Circuit Judges.
_____________________________________________________

EUGENE CARL HATHAWAY,

                                    Plaintiff-Appellant,

                              -v-                                               10-5132

UNITED STATES ATTORNEY GENERAL, ERIC H.
HOLDER, JR., FEDERAL BUREAU OF PRISONS,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:            Philip A. Wellner, Friedman Kaplan Seiler & Adelman LLP, New
                                    York, N.Y.

Appearing for Appellees:            Brandon H. Cowart, Assistant United States Attorney (Sarah S.
                                    Normand, Assistant United States Attorney, on the brief), for Preet
                                    Bharara, United States Attorney for the Southern District of New
                                    York, New York, N.Y.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Preska, C.J.).
        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is VACATED and
the case is REMANDED.

        Eugene Carl Hathaway appeals from a judgment of the district court dismissing his
complaint. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        “A plaintiff bringing a claim under Bivens [v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971),] must allege that he has been deprived of a
constitutional right by a federal agent acting under color of federal authority.” Thomas v.
Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006). “Because the doctrine of respondeat superior does
not apply in Bivens actions, a plaintiff must allege that the individual defendant was personally
involved in the constitutional violation.” Id.

        The district court dismissed the pro se prisoner’s civil rights complaint sua sponte under
28 U.S.C. § 1915A. The court held that the complaint failed to state a claim insofar as Hathaway
alleged that his transfer by federal officials to a state facility in Mississippi violated the Eighth or
First Amendments of the U.S. Constitution, and that to the extent Hathaway challenged the
conditions of his confinement in Mississippi venue was improper in the Southern District of New
York. The court did not address whether Hathaway adequately pleaded that federal officials
deprived him of a protected liberty interest by causing him to be transferred to Mississippi,
without due process of law, as punishment for assaulting a prison warden in New York. The
court did not grant Hathaway leave to amend his complaint.

        We conclude that Hathaway has sufficiently alleged that federal officials caused him to
be placed in solitary confinement as punishment for assaulting a prison warden without
providing him procedural due process as required under the U.S. Constitution. See Sandin v.
Conner, 515 U.S. 472, 486 (1995) (“We hold that [the prisoner’s] discipline in segregated
confinement did not present the type of atypical, significant deprivation in which a State might
conceivably create a liberty interest.”); Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000)
(“Confinement in normal [segregated housing unit] conditions for 305 days is in our judgment a
sufficient departure from the ordinary incidents of prison life to require procedural due process
protections under Sandin.”).

        We also believe that Hathaway’s allegation that federal officials punished him for
assaulting a prison warden by causing him to be transferred to a small cell in a state prison, in
which the temperature exceeded 110 degrees, for such a significant length of time constitutes a
plausible claim that the officials violated his right under the Eighth Amendment of the U.S.
Constitution to be free from cruel and unusual punishment. Cf. Gaston v. Coughlin, 249 F.3d
156, 164 (2d Cir. 2001) (“We have held that an Eighth Amendment claim may be established by
proof that the inmate was subjected for a prolonged period to bitter cold.”).

        Furthermore, we conclude that Hathaway has alleged sufficient facts to plausibly suggest
that federal officials were “personally involved in the constitutional violation,” even though
Hathaway’s alleged period of solitary confinement was not in a federal facility. Thomas, 470
F.3d at 496. Indeed, Hathaway alleges that an official from the Federal Bureau of Prisons told

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Hathaway: “If you write a letter apolo[g]iz[]ing for what you did in New York, I will forward the
letter to Washington and they might get you out [of] this place.” (capitalization altered).
Moreover, Hathaway alleges that when he complained about his continued detention in solitary
confinement, the official replied: “We can do what we want.” (capitalization altered) (internal
quotation marks omitted).

       We also conclude that the district court erred by dismissing Hathaway’s Eighth
Amendment claim sua sponte for improper venue. As we have noted, “[a] district court may not
dismiss a case sua sponte for improper venue absent extraordinary circumstances.” Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999). Such extraordinary circumstances
were not present here. Cf. Stich v. Rehnquist, 982 F.2d 88, 88-89 (2d Cir. 1992).

         Finally, we note that Hathaway has been very ably represented on this appeal by his
appointed pro bono counsel, who has committed to continue representing him before the district
court. On remand, if Hathaway pursues his motion for leave to file an amended complaint, the
district court should such grant such a motion and provide Hathaway with an opportunity to
submit a counseled amended complaint to replace the pro se complaints he previously filed. If
any new complaint filed by Hathaway raises claims for injunctive relief—claims that the parties
have addressed in briefs on this appeal—we leave to the district court to determine in the first
instance the merits of any such claims.

    Accordingly, the order of the district court hereby is VACATED, and the case hereby is
REMANDED for further proceedings consistent with this order.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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