Porter v. Hillsborough County Department of Corrections, Superintendent

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin Porter
v. 	Case No. 21-cv-772-LM
Hillsborough County Department of
Corrections Superintendent Willie Scurry
REPORT AND RECOMMENDATION
Kevin Porter, a New Hampshire pre-trial detainee housed at
the Hillsborough County Department of Corrections (“HCDOC”), has
petitioned this court for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. 	See Doc. No. 1. 	The Petition challenges the
conditions of confinement at the HCDOC, which Porter asserts
“continue[] to threaten his current and future health and safety
as a result of the HCDOC’s reckless and deliberate indifference
to COVID-19.” 	Id. at ¶ 1. 	Respondent has moved to dismiss the
petition. 	Doc. No. 7. 	Porter did not respond to the motion.
Respondent’s motion has been referred to the magistrate judge
for a report and recommendation. 	For the reasons that follow,
the district judge should grant the motion.
Motion to Dismiss Standard
Respondent moves to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). 	The court therefore accepts the factual allegations
in the complaint as true, construes reasonable inferences in
petitioner’s favor, and determines whether the factual
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allegations in the complaint state a claim upon which relief may
be granted. 	Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71
(1st Cir. 2014). 	Under Rule 12(b)(6) the court may consider
“facts and documents that are part of or incorporated into the
complaint,” as well as “documents incorporated by reference in
[the complaint], matters of public record, and other matters
susceptible to judicial notice.” 	Giragosian v. Ryan, 547 F.3d
59, 65 (1st Cir. 2008) (citations omitted). 	As petitioner is
proceeding pro se, his pleadings are construed liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Background
I. 	Procedural Background1
Porter was arrested on June 14, 2020 following an incident
that occurred at a sober living facility where he had been
staying. 	The next day, the superior court ordered Porter
preventively detained. 	The court will refer to the case arising
out of the June 2020 incident as “Porter I”.
Porter twice moved for the court in Porter I to reconsider
its detention order and the court denied both motions. 	On March
9, 2021, Porter appealed the superior court’s order of detention
1 Unless otherwise noted, the facts in this section are
taken from State v. Porter, No. 2021-0088, 2021 WL 3930281 (N.H.
Sept. 2, 2021).
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to the New Hampshire Supreme Court (“NHSC”). 	The NHSC affirmed
the order.2
On February 24, 2021, Porter filed a petition for a writ of
habeas corpus with the superior court. 	See Doc. No. 7-6 at 1.
In his petition, Porter complained of, among other things, the
HCDOC’s failure to protect him from COVID-19 and his conditions
of confinement. 	Id. at 3. 	The superior court denied Porter’s
petition. 	Id at 3-12. 	Porter did not appeal that denial to the
NHSC.
In June of 2021, while being housed in the HCDOC pursuant
to the superior court’s order in Porter I, Porter was indicted
for assaulting another inmate. 	See Ex. A-3 (Doc. No. 7-5) at 1.
The superior court ordered that Porter be preventively detained
given his “extensive record of assaultive behavior and the
seriousness of this assault.” 	Id. at 5. 	Porter has challenged
that order of preventive detention in the superior court. 	See
id. at 3. 	As of the time of the Respondent’s motion to dismiss,
Porter’s challenge remains pending. 	This court will refer to
that state prosecution as Porter II.
2 On March 9, 2021, the same date Porter appealed the
superior court’s order of detention, he also filed a Rule 11
petition for a writ of habeas corpus with the NHSC. 	See Ex. A-5
(Doc. No. 7-7) at 2. 	The NHSC denied the petition on April 15,
2021. 	See id.
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II. 	Allegations Underlying the Instant Petition
Porter tested positive for COVID-19 in December of 2020.
Complications from the infection required the prescription of
medications for his heart.
Porter believes he is now again infected with COVID-19
based on his symptoms. 	He alleges that his infection is the
result of his conditions of confinement and, specifically, the
HCDOC’s deliberate indifference to protecting him from COVID-19.
Discussion
The Respondent moves to dismiss Porter’s petition, arguing
that Porter has failed to exhaust his state court remedies and
that dismissal is required under the Younger abstention
doctrine.3 	Porter does not object.
I. 	Exhaustion of State Remedies
Inmates in state custody, including inmates in pretrial
detention, must exhaust their state remedies before seeking
federal habeas relief. 	See Braden v. 30th Judicial Circuit
Court of Kentucky, 410 U.S. 484, 489-90 (1973); Adelson v.
DiPaola, 131 F.3d 259, 261 (1st Cir. 1997). 	To satisfy that
requirement, a petitioner must give “the State the opportunity
to pass upon and correct alleged violations of its prisoners’
federal rights.” 	Baldwin v. Reese, 541 U.S. 27, 29 (2004)
3 Younger v. Harris, 401 U.S. 37 (1971).
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(internal citations and quotation marks omitted). 	“To provide
the State with the necessary opportunity, the prisoner must
fairly present his claim in each appropriate state court
(including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of
the claim.” 	Id. (internal quotation marks and citations
omitted); see also Lanigan v. Maloney, 853 F.2d 40, 42 (1st Cir.
1988) (internal quotation marks and citation omitted).
In “extraordinary circumstances,” there may be exceptions
to the exhaustion requirement. 	Fuller v. Rich, 11 F.3d 61, 62
(5th Cir. 1994) (internal quotation marks and citation omitted).
These circumstances include where “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.” 	Id. (citation omitted).
The burden is on the habeas petitioner “to show that he
fairly and recognizably presented to the state courts the
factual and legal bases of [his] federal claim.” 	Adelson, 131
F.3d at 262. 	To the extent the petitioner contends than an
exception to the exhaustion requirement is appropriate, he
likewise bears the burden to show that such extraordinary
circumstances apply. 	Fuller, 11 F.3d at 62.
Porter filed a petition for habeas relief in the superior
court in Porter I asserting claims arising out of the HCDOC’s
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failure to protect him from COVID-19 and his conditions of
confinement, the same claims he raises in this case. 	The
superior court denied Porter’s petition and Porter did not
appeal that denial to the NHSC. 	Porter’s failure to “give the
state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established
appellate review process,” means that he did not exhaust his
administrative remedies prior to filing this petition.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Mele
v. Fitchburg Dist. Court, 850 F.2d 817, 820 (1st Cir. 1988)
(holding that to exhaust a claim, “it is not enough merely to
raise an issue before an intermediate court; one who seeks to
invoke the federal habeas power must fairly present—or do his
best to present—the issue to the state’s highest tribunal”).
Nor did Porter exhaust his remedies with his March 9, 2021
filing with the NHSC, which the NHSC construed as a Rule 11
state habeas petition and denied on April 15, 2021. 	It is
unclear whether the claims raised in that petition relate to
those raised in this case.4 	Even if they do, the NHSC summarily
denied the petition and Porter does not attempt to show that his
4 As noted above, on the same day Porter filed his Rule 11
petition, he appealed the superior court’s orders denying his
request for bail. 	The NHSC affirmed the superior court’s orders
in a well-reasoned opinion, and Porter’s claims did not overlap
with the ones raised in the instant petition.
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Rule 11 filing exhausted his state remedies on his current
claims.5 	See Morehouse v. Cunningham, No. 98-304-M, 1999 WL
813917, at *3 (D.N.H. Apr. 9, 1999) (petitioner’s Rule 11
petition for original review in the NHSC “did not fairly present
[petitioner's] claims to the state courts for exhaustion
purposes”); see also Holloway v. New Hampshire, No. 21-CV-456-
JD, 2021 WL 5868223, at *4, 2021 U.S. Dist. LEXIS 198029, at *10
(D.N.H. Aug. 3, 2021) (“Absent a showing that the NHSC in fact
ruled on the merits of those claims or that [petitioner] is now
otherwise barred under state law from litigating the same claims
in a direct appeal or in other state collateral proceedings, the
record here does not demonstrate that his prior Rule 11 filings
exhausted his state remedies on those claims.”), R&R adopted,
2021 U.S. Dist. LEXIS 197030, 2021 WL 4772120 (D.N.H. Oct. 12,
2021).
Finally, Porter has not demonstrated, or attempted to
demonstrate, that any exception to the exhaustion requirement is
applicable here. 	Accordingly, the district judge should dismiss
5 Further, as Respondent notes, Porter is presently subject
to a preventive detention order in Porter II, and he is actively
challenging that order in the superior court. 	To the extent he
raises similar claims in his motions in Porter II as he does in
the instant petition, that, too would show a failure to exhaust
his administrative remedies. 	See Graham v. Maine, No. 2:20-CV-
00315-JDL, 2020 U.S. Dist. LEXIS 184185, at *4, 2020 WL 6811492,
at *2 (D. Me. Oct. 5, 2020), R&R adopted, 2020 U.S. Dist. LEXIS
243246, 2020 WL 7753684 (D. Me. Dec. 29, 2020).
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Porter’s § 2241 petition for failure to demonstrate that he has
exhausted his state remedies on his claims.
II. 	Younger Abstention
In addition to Porter’s failure to exhaust his
administrative remedies, Younger abstention requires dismissal
of Porter’s petition.
“The Younger doctrine reflects a ‘longstanding public
policy against federal court interference with state court
proceedings,’ and is based on two conceptual foundations.”
Mass. Delivery Ass’n v. Coakley, 671 F.3d 33, 40 (1st Cir. 2012)
(quoting Younger, 401 U.S. at 43). 	“[I]t is based on a notion
that ‘courts of equity should not act, and particularly should
not act to restrain a criminal prosecution, when the moving
party has an adequate remedy at law and will not suffer
irreparable injury if denied relief.’” 	Id. 	“[M]ore
importantly, Younger rests upon basic notions of federalism and
comity, and also on a related desire to prevent unnecessary
duplication of legal proceedings.” 	Id. 	To determine whether
Younger applies, the court must ascertain whether the requested
relief would interfere with an ongoing state judicial proceeding
that implicates an important state interest and provides an
opportunity for the federal plaintiff to advance his
constitutional challenge. Id.; see also Middlesex Cnty. Ethics
Comm. v. Garden State Bar Assoc., 457 U.S. 423, 432 (1983).
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Here, the Younger doctrine requires abstention. 	Porter is
currently involved in a criminal judicial proceeding in Porter
II, which implicates important state interests associated with
the State’s administration of its laws, and which offers him the
opportunity to advance his constitutional challenge and
“advocate for pretrial release on the same grounds he would cite
in this Court.” 	Graham, 2020 U.S. Dist. LEXIS 184185, at *3,
2020 WL 6811492, at *1 (pre-trial detainee’s § 2241 petition
seeking release from pretrial confinement properly dismissed
based on Younger abstention); see also Enwonwu v. Mass. Super.
Court, No. 1:12-cv-10703-DJC, 2012 WL 1802056, at *3 n.7, 2012
U.S. Dist. LEXIS 68192, at *9-10 n.7 (D. Mass. May 16, 2012)
(D. Mass. May 16, 2012) (“Courts have consistently applied the
Younger doctrine to dismiss habeas claims by pretrial detainees
based on excessive bail, claims of actual innocence, or due
process violations, absent bad faith, harassment, or [other]
extraordinary circumstances.”). 	Accordingly, abstention is
appropriate in this case.6
6 Porter makes no attempt to show that any exception to the
Younger abstention doctrine applies. 	Cf. Enwonwu, 2012 WL
1802056, at *3, 2012 U.S. Dist. LEXIS 68192, at *11. 	His
allegations regarding COVID-19, standing alone, do not warrant
this court’s finding that his case falls within any exception to
Younger abstention. 	Fletcher v. Houston, No. 2:20-cv-09451-JGB-
JC, 2021 U.S. Dist. LEXIS 146234, at *12, 2021 WL 3377239, at *5
(C.D. Cal. June 16, 2021) (fifty year-old inmate with asthma who
had contracted COVID-19 twice, who alleged he was at risk of
third COVID-19 infection while in detention, failed to show that
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Certificate of Appealability (“COA”)7
When the district court denies a habeas petition filed by a
state inmate on procedural grounds without reaching the
underlying constitutional claims, 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. 	See Slack v. McDaniel, 529 U.S. 473,
483-84 (2000); see also 28 U.S.C. § 2253(c)(2). 	Here, Porter
has not made any substantial showing of the denial of a
constitutional right, and reasonable jurists would not debate
that the unsatisfied exhaustion requirement and Younger
abstention bar further review of Porter’s claims. 	A COA is
properly denied in this case.
any exception to Younger abstention applied in his case), R&R
adopted, 2021 WL 3371535, 2021 U.S. Dist. LEXIS 145246 (C.D.
Cal. July 30, 2021).
7 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 [28 U.S.C.] § 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.”). But cf. Gonzalez v. Justices of Mun. Ct., 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.”), vacated on other grounds, 544 U.S. 918 (2005),
reinstated, 420 F.3d 5 (1st Cir. 2005).
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Conclusion
For the foregoing reasons, the district judge should grant
the motion to dismiss (Doc. No. 7) and dismiss the § 2241
petition (Doc. No. 1) in its entirety; the district judge should
decline to issue a certificate of appealability; judgment should
be entered; and the case should be closed. 	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.
Only those issues raised in the objection(s) to this Report
and Recommendation are subject to review in the district court.
See Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554,
564 (1st Cir. 2010). 	Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any 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
January 25, 2022
cc: 	Kevin Porter, pro se
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