Porter et al v. Scurry et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin Porter and
Vincent Chaney
v. 	Case No. 20-cv-1210-JL
Willie Scurry et al. 1
REPORT AND RECOMMENDATION
Before the court is the Amended Complaint (Doc. No. 2)
filed by plaintiffs Kevin Porter and Vincent Chaney, pretrial
detainees at the Hillsborough County House of Corrections
(“HCHOC”), seeking damages under 42 U.S.C. § 1983 for alleged
unconstitutional conditions of confinement at the HCHOC in 2020.
Defendants are Hillsborough County Department of Corrections
(“HCDOC”) Superintendent Willie Scurry, HCDOC Nurse Practitioner
Christopher Schweiger, HCDOC Dr. Christopher Braga, HCDOC Health
Care Administrator Denise Hartley, HCDOC Deputy Chief of
Security Brian Martineau, HCDOC Corrections Officer (“CO”)
Gifford Hiscoe, CO Timothy Fitzpatrick, CO Joshua Jordan, CO
1 Defendants named in the Amended Complaint are Hillsborough
County Department of Corrections (“HCDOC”) Superintendent Willie
Scurry, Nurse Practitioner Christopher Schweiger, Dr.
Christopher Braga, HCDOC Health Care Administrator Denise
Hartley, HCDOC Deputy Chief of Security Brian Martineau,
Corrections Officer (“CO”) Gifford Hiscoe, CO Timothy
Fitzpatrick, CO Joshua Jordan, CO Brandon Dominico (or
Diminico), and other unknown HCDOC COs, hereafter identified as
“CO John Doe 1-4.”
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Brandon Dominico (or Diminico), and a number of unknown HCDOC
COs, hereafter identified as “CO John Does 1-4.” 	The Amended
Complaint is before the court for preliminary review under LR
4.3(d) and 28 U.S.C. § 1915A(a).
Preliminary Review Standard
The court may dismiss claims asserted in an inmate's
complaint if the court lacks subject matter jurisdiction, a
defendant is immune from the relief sought, the complaint fails
to state a claim, or the action is frivolous or malicious. 	See
28 U.S.C. § 1915A(b). 	In determining whether a pro se complaint
states a claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	To
determine whether to dismiss claims for failure to state a
claim, the court takes as true the factual content in the
complaint and inferences reasonably drawn from those facts,
strips away the legal conclusions, and considers whether
plaintiff has stated a claim that is plausible on its face.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Background 2
Plaintiffs Porter and Chaney were pretrial detainees at the
2 Except as otherwise indicated, the following statement of
background facts is derived from the allegations in the Amended
Complaint (Doc. No. 2), taken as true for purposes of this
court’s preliminary review.
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HCHOC in 2020. 	Porter arrived at the HCHOC on June 14, 2020,
and Chaney arrived on November 16, 2020. 	See Compl. ¶¶ 11, 25
(Doc. No. 1). 	The court has construed plaintiffs’ claims as
intending to assert that each of the supervisors, corrections
officers, and medical providers named as defendants violated
plaintiffs’ rights under the Fourteenth Amendment Due Process
Clause, by exposing them to hazardous conditions of confinement
during the COVID-19 pandemic.
In March 2020, the Centers for Disease Control and
Prevention (“CDC”) published interim guidance on the management
of the COVID-19 virus in correctional facilities. 	On July 26,
2020, plaintiff Porter filed a grievance against the medical
staff for failing to sanitize their hands or wear gloves during
distribution of medication to the HCHOC’s general population, in
contravention of the CDC guidance. 	Subsequent to Porter’s
grievance, HCHOC medical staff started sanitizing the medication
cart and their hands before they put on gloves. 	In addition, a
protective shield was attached to the cart. 	No medical or
correctional staff were otherwise using personal protective
equipment.
In the course of investigating Porter’s grievance about
medical staff practices, plaintiffs allege that defendant CO
Fitzpatrick reviewed video footage and defendant Hartley spoke
with nursing staff. 	Porter’s allegations were deemed to be
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unfounded, a finding that was affirmed by defendant CO Hiscoe,
who was then the acting Superintendent.
Between July and September 2020, Porter was examined by
health care providers Braga, Schweiger and Hartley, who were not
wearing protective masks. 	When defendant Scurry became HCHOC
Superintendent in September 2020, he did not issue protective
masks to inmates. 	On November 2, 2020, defendant CO Fitzpatrick
distributed cloth masks to the general inmate population but, at
that time, inmates were told that the masks could not be worn
inside their housing units, but only when exiting the unit, per
orders of Superintendent Scurry and CO Martineau. 	Prior to late
November 2020, there were no signs in the HCHOC calling for
social distancing in the facility’s housing units.
On November 16, 2020, the Hillsborough County Superior
Court, Northern Division, issued an order resulting in plaintiff
Chaney’s pretrial detention at the HCHOC. 	That court suspected
that Chaney had COVID-19 at that time. 	Upon his arrival at the
HCHOC, Chaney was placed in isolation in a cell that lacked
negative pressure ventilation. 	None of the medical defendants –
Hartley, Braga or Schweiger – ordered testing for Chaney,
despite CDC guidelines calling for inmate testing in those
circumstances. 	During his period of isolation, Cheney was not
provided with adequate hygienic or cleaning supplies, a
situation known to defendants Hartley, Braga and Schweiger.
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health care providers. 	In late November and early December
2020, HCHOC officials placed signs calling for social distancing
throughout the facility’s housing units.
On December 17, 2020, plaintiffs noticed “a lot of coughing
and sneezing around them” which led both of them to wear their
cloth masks out of fear of getting COVID-19. 	Plaintiffs refused
the command of an unknown officer (“CO John Doe 1”) to remove
their masks. 	CO John Doe 1 notified his supervisors, defendant
COs Joshua Jordan and Brian Dominico, who along with other
unknown COs (“John Does 2, 3, and 4”), surrounded plaintiffs
while ordering them to remove their masks. 	Porter asked the
officers whether they would put Porter’s health at risk, to
which defendant Jordan replied, “you don’t need a mask because
you are in a controlled unit.” 	Both plaintiffs filed grievances
following this incident.
Porter also called outside counsel who contacted
Superintendent Scurry about the COVID-19 situation at HCHOC.
Scurry replied by email that no inmate testing was taking place,
but was vague as to the mask issue. 	Distribution of
antibacterial soap was discontinued and inmates who had tested
positive for COVID-19 were housed with those who had not. 	The
HCHOC also closed the recreation yard on the housing unit,
depriving inmates of the opportunity to avoid the closed indoor
spaces of the jail. 	On December 31, 2020, a New Hampshire
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Superior Court Judge ordered an inmate released to home
confinement, upon finding that there had been deliberate
indifference to the COVID-19 pandemic at the HCHOC. 3
On January 4, 2021, the day after they were tested by
representatives of the New Hampshire Department of Health and
Human Services, plaintiffs were diagnosed with COVID-19. 	The
plaintiffs were immediately placed in quarantine, without access
to adequate medical care or hygiene and cleaning supplies. 	This
confinement continued for three weeks, during which the
plaintiffs were confined for twenty-two hours per day and shared
two showers with thirty other ill inmates.
Fourteenth Amendment Standard
The court has construed the Amended Complaint (Doc. No. 2)
as intending to state claims under 42 U.S.C. § 1983, arising
from allegations that that defendants violated the Fourteenth
Amendment Due Process Clause, by subjecting them to punitive
conditions of pretrial confinement in failing to protect them
from a heightened risk of COVID-19 infection, with deliberate
indifference to that risk. 	See Bell v. Wolfish, 441 U.S. 520,
535 (1979); see also Spencer v. City of Bos., No. 13-11528-MBB,
2015 WL 6870044, at *7 (D. Mass. Nov. 6, 2015) (“constitutional
3 See State v. James, Nos. 2020-CR-000204 & 2020-CR-00358,
Order on Def’s. Req. for Bail (N.H. Super. Ct., Hillsborough
Cty., (S. Dist.) Dec. 31, 2020).
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violations based on denied or inadequate medical care brought by
pretrial detainees are analyzed under the substantive component
of the Due Process Clause of the Fourteenth Amendment”). 	To
state a constitutional tort or other civil rights claim upon
which relief can be granted pursuant to 42 U.S.C. § 1983, the
plaintiff must allege facts showing that the defendant possessed
a purposeful, knowing, or reckless state of mind, as “‘liability
for negligently inflicted harm is categorically beneath the
threshold of constitutional due process.’” 	Kingsley v.
Hendrickson, 576 U.S. 389, 396 (2015) (citation omitted).
Since Kingsley, it has been unclear whether a pretrial
detainee asserting a Fourteenth Amendment conditions-of-
confinement claim must show subjective deliberate indifference
as required by the Eighth Amendment, or merely that the conduct
“purposely or knowingly used against him was objectively
unreasonable.” 	Id. at 397; see also Gomes v. U.S. Dep’t of
Homeland Sec., 460 F. Supp. 3d 132, 145-148 (D.N.H. 2020)
(noting Circuit split and observing that, post-Kingsley, the
First Circuit has applied Eighth Amendment deliberate
indifference standard to pretrial detainee medical claims twice
but that those decisions do not foreclose change of standard by
Kingsley). 	The court declines to resolve that issue absent
briefing on the issue by both parties.
Viewed through the more exacting Eighth Amendment lens, a
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plaintiff alleging inadequate medical care of other
unconstitutional conditions of confinement must satisfy a two-
prong test. 	Abernathy v. Anderson, 984 F.3d 1, 6 (1st Cir.
2020) (per curiam). 	First, “the deprivation alleged must be,
objectively, ‘sufficiently serious.’” 	Farmer v. Brennan, 511
U.S. 825, 834 (1994) (citations omitted). 	Where an alleged
failure to treat a medical condition forms the basis of an
inmate’s claim, the objective component may be established by
evidence of a medical need “‘that has been diagnosed by a
physician as mandating treatment, or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention.’” 	Miranda-Rivera v. Toledo-Dávila, 813 F.3d
64, 74 (1st Cir. 2016) (citation omitted).
The second prong is subjective; it mandates that prison
administrators must have exhibited a deliberate indifference to
the prisoner's needs. 	Kosilek v. Spencer, 774 F.3d 63, 83 (1st
Cir. 2014). 	A showing of deliberate indifference to a
substantial risk of serious harm satisfies the subjective prong
of an Eighth Amendment claim. 	See Farmer, 511 U.S. at 834. 	To
establish deliberate indifference, an inmate must demonstrate
that defendants were aware of facts that gave rise to an
inference that a substantial risk of serious harm existed; that
defendants drew the inference that such a risk existed; and that
defendants, by act or omission, did not take reasonable steps to
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ameliorate the risk. 	See id. at 828-29; Leite v. Bergeron, 911
F.3d 47, 52–53 (1st Cir. 2018). 	Deliberate indifference may
also be manifested by “‘wanton disregard to a prisoner’s needs
. . . akin to criminal recklessness, requiring consciousness of
impending harm, easily preventable.” 	Abernathy, 984 F.3d at 6
(citation omitted).
Claims4
1. 	Porter’s Claims
Claim 1A. Medical Defendants (Hartley, Braga, Schweiger)
The facts alleged in the Amended Complaint, leading up to
and including Porter’s COVID-19 diagnosis, are sufficient to
allow a claim for violations of his rights under the Fourteenth
Amendment to survive preliminary review and proceed under 42
U.S.C. § 1983 against defendants Hartley, Braga and Schweiger –
all medical professionals - for their deliberate indifference in
exposing Porter to a substantial risk of COVID-19 infection.
4 The court has construed the complaint as alleging claims of
constitutional violations against the individual defendants.
The court expresses no opinion at this time as to whether the
facts alleged in the Amended Complaint (Doc. No. 2) could also
state claims upon which relief can be granted under a theory of
negligence against any defendant or his or her employer, or
against Hillsborough County, for violating plaintiffs’ due
process rights, under a theory of local government liability
under 42 U.S.C. § 1983. 	See generally Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978) (“when execution of a [local]
government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury,” then local government
itself may be held liable under 42 U.S.C. § 1983).
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Claim 1B. 	Superintendent Scurry, COs Martineau, Jordan,
Dominico, and John Does 1-4
Construing the Complaint liberally, the court concludes
that Porter has also alleged sufficient facts to allow a section
1983 claim to proceed against Superintendent Scurry, COs
Martineau, Jordan, and Dominico, and John Does 1-3 for their
deliberate indifference in exposing Porter to a substantial risk
of COVID-19 infection.
Claim 1C. 	Acting Superintendent/CO Hiscoe and CO
Fitzpatrick
The claim against Hiscoe and Fitzpatrick relate only to
plaintiff Porter. 	The Amended Complaint, however, does not
state facts regarding the conduct of those defendants and their
awareness of a risk of harm, sufficient to state a claim upon
which relief can be granted against these defendants. 	That they
reviewed Porter’s grievance and related videotape in the
circumstances described does not support a claim that they
engaged in any conduct that was more than merely negligent.
Accordingly, the district judge should dismiss the Fourteenth
Amendment claims against them.
2. 	Chaney’s Claims
Claim 2A. 	Medical Defendants (Hartley, Braga, Schweiger)
For substantially the same reasons as set forth with
respect to plaintiff Porter, the facts alleged in the Amended
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Complaint, leading up to and including Chaney’s COVID-19
diagnosis, are sufficient to allow a claim for violations of
Chaney’s rights under the Fourteenth Amendment to proceed under
42 U.S.C. § 1983 against defendants Hartley, Braga and
Schweiger.
Claim 2B. Superintendent Scurry, COs Martineau, Jordan,
Dominico, and COs
Similarly, the court concludes that Chaney has also alleged
sufficient facts to allow a section 1983 claim to proceed
against Superintendent Scurry, COs Martineau, Jordan, Dominico
and CO John Does 1-4, for their deliberate indifference in
exposing Chaney to a substantial risk of COVID-19 infection.
Accordingly, by a separate Order issued this date, the
court orders service of the Amended Complaint against the
medical defendants, Superintendent Scurry, COs Martineau, Jordan
and Dominico, and the unknown COs, identified here as CO John
Does 1-4. 5
Claim 3. 	Retaliation and Injunctive Relief
As part of their claim for relief, plaintiffs seek an
injunction ordering their transfer to another facility to
prevent retaliation for filing the instant lawsuit. 	As the
Amended Complaint is devoid of factual allegations which would
5 With respect to claims 1B and 2B, the court will permit
plaintiffs to conduct discovery necessary to determine the
identities of CO John Does 1-4.
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support a claim of retaliation or that could suggest any risk of
a retaliatory transfer that is not purely speculative, the
district judge should dismiss that claim for injunctive relief.
Conclusion
For the foregoing reasons, the district judge should
dismiss plaintiffs’ claims against defendants Hiscoe and
Fitzpatrick and those individuals should be dropped as
defendants. 	The district judge should also dismiss plaintiffs’
claim for injunctive relief, identified here as Claim 3. 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. See Fed. R. Civ.
P. 72(b)(2). The fourteen-day period may be extended upon
motion. Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court's order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
_________________________
Andrea K. Johnstone
United States Magistrate Judge
Date: 	May 5, 2021
cc: 	Kevin Porter, pro se
Vincent Chaney, pro se
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