Schillinger v. NH State Prison

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Greg Schillinger
v. 	Case No. 21-cv-135-PB
N.H. State Prison Warden
REPORT AND RECOMMENDATION
Petitioner, Greg Schillinger, has filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2241 as well as motions
and notices construed, in pertinent part, to be addenda to that
petition (Doc. Nos. 1, 3, 5, 6, 10). 	Mr. Schillinger’s petition
and its addenda are here for preliminary review to determine
whether he has asserted any facially valid claims for relief
that may proceed in this case. 	See Rule 4 of the Rules
Governing Section 2254 Cases (“§ 2254 Rules”); see also § 2254
Rule 1(b) (authorizing court to apply § 2254 Rules to § 2241
petitions); LR 4.3(d)(4).
Discussion
I. 	Federal Rule of Civil Procedure 17(c)(2)
Mr. Schillinger has filed documents in this court
indicating that a state probate court has appointed a guardian
for him. 	Those filings triggered this court’s decision to
undertake further inquiry under Rule 17(c)(2) of the Federal
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Rules of Civil Procedure to determine whether Mr. Schillinger
has the capacity to litigate this action without a court-
appointed representative. 	Rule 17(c)(2) provides, as follows:
A minor or an incompetent person who does not have a duly
appointed representative may sue by a next friend or by a
guardian ad litem. 	The court must appoint a guardian ad
litem – or issue another appropriate order – to protect a
minor or incompetent person who is unrepresented in an
action.
Id.
The March 5, 2021 Order (Doc. No. 4) in this case directed
Mr. Schillinger and/or his guardian to file a copy of the state
court order appointing the guardian. 	The guardian’s response to
that Order (Doc. No. 8) indicates that that the guardianship
order does not limit Mr. Schillinger’s ability to litigate his
own claims in this case without that guardian’s participation.
This court concludes that it may complete its preliminary
screening of the petition under 28 U.S.C. § 2243, § 2254 Rule 4,
and LR 4.3(d)(4) at this time, to determine if the petition
includes facially valid claims. 	Cf. Mahoney v. Hearst Corp.,
No. 13-cv-12994-LTS, 2015 U.S. Dist. LEXIS 19253, at *4, 2015 WL
686814, at *2 (D. Mass. Feb. 18, 2015) (“‘[i]n the context of
unrepresented litigants proceeding in forma pauperis, [the]
inquiry [as to the application of Rule 17(c)] would usually
occur after the preliminary merits screening under 28 U.S.C.
§ 1915A or 28 U.S.C. § 1915(e)(2)’” (emphasis added) (citing
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Powell v. Symons, 680 F.3d 301, 307 (3d Cir. 2012))).
Mr. Schillinger’s filings here show that he can make the
court understand the reasons why he considers his confinement
pursuant to the pending state proceedings to violate his
Fourteenth Amendment due process and equal protection rights.
Where Mr. Schillinger maintains the legal capacity to litigate
his own claims pro se, and has demonstrated an ability to
explain the reasons for granting the relief he seeks, further
action by this court under Rule 17(c)(2) appears to be
unnecessary. 	In an abundance of caution, however, in the Order
issued this date, the court has granted Mr. Schillinger’s motion
to appoint counsel to represent him in this matter and has
extended the deadline for filing a response to this Report and
Recommendation.
II. 	Sexually Violent Predator Proceedings
Mr. Schillinger has asserted claims challenging the
validity of his current confinement in the Secure Psychiatric
Unit (“SPU”) in the New Hampshire State Prison. 	He asserts that
he was transferred to SPU without due process and in violation
of his right to equal protection, and in violation of state law.
He further alleges that he has been improperly deemed to be
subject to civil commitment for up to five years, pursuant to
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N.H. Rev. Stat. Ann. (“RSA”) 135-E:11, II, and that his present
confinement exceeds the length of the sentence imposed in his
criminal case.
A. 	Younger Abstention
Absent extraordinary circumstances, [the] “interests of
comity and federalism instruct [federal courts] to abstain
from exercising our jurisdiction in certain circumstances
when . . . asked to enjoin ongoing state enforcement
proceedings.” 	[Abstention under Younger v. Harris, 401
U.S. 37 (1971),] “is appropriate when: (1) there is an
ongoing state judicial proceeding; (2) the proceeding
implicates important state interests; (3) there is an
adequate opportunity in the state proceedings to raise
constitutional challenges; and (4) the requested relief
seeks to enjoin or has the practical effect of enjoining
the ongoing state judicial proceeding.” 	But “even if
Younger abstention is appropriate, federal courts do not
invoke it if there is a ‘showing of bad faith, harassment,
or some other extraordinary circumstance that would make
abstention inappropriate.’”
Page v. King, 932 F.3d 898, 901-902 (9th Cir. 2019) (internal
citations omitted).
Although much of the Superior Court docket in Mr.
Schillinger’s sexually violent predator petition is sealed, it
is clear that those proceedings are an ongoing judicial
proceeding. 	See State v. Schillinger, No. 219-2020-cv-00309
(N.H. Super. Strafford Cnty., filed Oct. 7, 2020). 	Moreover,
Mr. Schillinger seeks relief here that could have the effect of
enjoining that proceeding, if he were to prevail.
Civil commitment proceedings to determine if a detainee is
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a sexually violent predator are the type of state enforcement
proceedings that implicate important state interests that could
warrant Younger abstention. 	Brantley v. Florida, No. 14-22718-
CIV-LENARD/WHITE, 2016 U.S. Dist. LEXIS 137597, at *13 (S.D.
Fla. Sep. 30, 2016). 	Mr. Schillinger has counsel representing
him in those state proceedings, and he has an opportunity to
raise all of his federal civil rights claims in those
proceedings, employing the procedures available under state law.
See generally State v. Ploof, 162 N.H. 609, 34 A.3d 563 (2011)
(analyzing procedural protections available under RSA 135-A).
Adjudicating Mr. Schillinger’s Fourteenth Amendment claims here
and deciding whether to order his release while those
proceedings remain pending would potentially derail that
proceeding and short-circuit the process established under state
law to protect his rights. 	The prerequisites to Younger
abstention are all present in this matter, and no exception
appears applicable. 	The district judge should dismiss this
§ 2241 petition, without prejudice, pursuant to Younger.
B. 	Exhaustion
Alternatively, the matter is appropriately dismissed
without prejudice at this time as Mr. Schillinger has not
exhausted his state remedies. 	See Timms v. Johns, 627 F.3d 525,
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530-31 (4th Cir. 2010). 	“‘Exceptions to the exhaustion
requirement are appropriate where . . . [state] remedies either
are unavailable or wholly inappropriate to the relief sought, or
where the attempt to exhaust such remedies would itself be a
patently futile course of action.’” 	Fuller v. Rich, 11 F.3d 61,
62 (5th Cir. 1994) (citation omitted). 	Exceptions to the
exhaustion requirement arise only in “‘extraordinary
circumstances,’” and petitioner bears the burden of
demonstrating the futility of exhausting state remedies. 	Id.
(citations omitted).
Nothing before this court suggests that exhaustion of state
court remedies through the RSA 135-E proceedings would be
futile. 	As no exception to the exhaustion requirement is
applicable, the district judge should dismiss the § 2241
petition without prejudice for lack of exhaustion.
III. Conditions of Confinement
Mr. Schillinger has asserted claims relating to the
conditions of his confinement. 	Dismissal of this petition for
reasons stated in this Report and Recommendation would not
impair his ability to file a new civil rights complaint seeking
relief under 42 U.S.C. § 1983, naming appropriate defendants,
raising Fourteenth Amendment claims relating to the conditions
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of his confinement.
IV. 	Certificate of Appealability
Although a certificate of appealability (“COA”) is not
essential when a habeas petitioner seeks relief under section
2241, the district judge should decline to issue a COA in this
case. 1 	A COA may issue “only if the [petitioner] has made a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). 	When the district court denies a habeas
petition on procedural grounds without reaching the underlying
constitutional claim, a COA should issue when the inmate shows,
at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling. 	Slack, 529 U.S. at 484. 	Here, Mr.
1 See Gonzalez v. Justices of the Mun. Court, 382 F.3d 1, 12
(1st Cir. 2004) (“Where, as here, a habeas petition is governed
by section 2241, a certificate of appealability is not
essential.”), jt. vacated on other grounds by 544 U.S. 918
(2005), and reinstated, 420 F.3d 5 (1st Cir. 2005). 	But see
Winburn v. Nagy, 956 F.3d 909, 912 (6th Cir. 2020) (“The circuit
courts speak as one in their holdings that the language of
§ 2253(c)(1)(A) requires certificates of appealability for all
state-prisoner habeas appeals, whether seeking pretrial relief
under § 2241 or post-conviction relief under § 2254.”).
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Schillinger has not made a substantial showing of the denial of
a constitutional right, and reasonable jurists would not debate
that Younger abstention and his failure to exhaust his state
remedies bar further review of his claims at this time.
Conclusion
For the foregoing reasons, the district judge should
dismiss this § 2241 petition without prejudice and decline to
issue a certificate of appealability. 	Any objections to this
Report and Recommendation must be filed on or before July 7,
2021. 	That objection period may be extended upon motion.
Failure to file objections 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
April 8, 2021
Cc: 	Gregory Schillinger, pro se
Office of the Public Guardian
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