Kenneth Hall v. Anna Holsmith, No. 09-6288 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6288 KENNETH CARLOS HALL, Plaintiff - Appellant, v. ANNA HOLSMITH, Med. Tech.; CHUCK JENKINS, Sheriff, Defendants Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson Everett Legg, Chief District Judge. (1:08-cv-00301-BEL) Submitted: July 7, 2009 Decided: July 21, 2009 Before WILKINSON, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Kenneth Carlos Hall, Appellant Pro Se. Mary Malloy Dimaio, POWERS & FROST, LLP, Towson, Maryland; Kevin Bock Karpinski, KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth Carlos Hall, a former inmate at the Frederick County Adult Detention Center, filed this 42 U.S.C. § 1983 (2006) civil rights action against medication technician Anna Holtzman 1 and intentionally Sheriff denied Chuck him Jenkins, medication alleging on that December Holtzman 17, 2007, violating his Fifth, Eighth, and Fourteenth Amendment rights. Hall appeals the district and grant court s of denial appoint counsel summary favor. 2 of his judgment motions in to Holtzman s Finding no error, we affirm. I. On appeal, Hall first challenges the district court s denial of his motions for appointment of counsel. Pursuant to 28 request U.S.C. attorney § 1915(e)(1) to represent (2006), any [t]he person court unable to may afford an counsel. However, there is no absolute right to appointment of counsel; a plaintiff must present exceptional circumstances. Simmons, 814 F.2d 962, 966 (4th 1 Cir. 1987). Miller v. Exceptional Hall s action incorrectly names Anna Holsmith as defendant. The defendant/appellee s name is Anna Holtzman. 2 a Hall does not challenge the district court s dismissal of Jenkins as a party in his informal brief. Therefore, Hall has forfeited appellate review of the issue. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). 2 circumstances exist where a pro se litigant has a colorable claim but lacks the capacity to present it. Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) (citation omitted), abrogated on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989) (holding that 28 U.S.C. § 1915 compulsory appointment of counsel). of a motion discretion. to appoint counsel does not authorize A district court s denial is Miller, 814 F.2d at 966. reviewed for abuse of The claims presented in Hall s complaint are not complicated and Hall has demonstrated the capacity to present those claims adequately in his numerous court filings. Therefore, the district court did not abuse its discretion in denying Hall s motions for appointment of counsel. II. Hall summary also judgment challenges in the Holtzman s district favor and court s its grant denial of of his motion for summary judgment, arguing the decision was based on undisputed material facts that [do] not exist. Hall alleges that the district court could not have assessed the seriousness of his medical condition contain a diagnosis. because his medical records do not We review a district court s grant of summary judgment de novo, viewing the facts and the reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Emmett v. Johnson, 532 F.3d 291, 297 (4th 3 Cir. 2008). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Additionally, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The Due Process Clause of the Fourteenth Amendment governs a pretrial detainee s claim of denial of medical care. Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). [p]retrial protection detainees under are the entitled Fourteenth to at Amendment prisoners under the Eighth Amendment. Amendment s deliberate as the are same convicted Young v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001). Eighth least However, Thus, we use the indifference standard of Estelle v. Gamble, 429 U.S. 97, 104 (1976), in evaluating the pretrial detainee s claim. Id. The Eighth Amendment s prohibition against cruel and unusual punishment protects prisoners from the unnecessary and wanton infliction of pain, which includes indifference to serious medical needs of prisoners. deliberate Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks and citation omitted). Thus, [t]o succeed on an Eighth Amendment 4 . . . claim, a prisoner objectively the sufficiently serious, must deprivation and prove of (2) two a elements: that basic subjectively that need human (1) was the prison officials acted with a sufficiently culpable state of mind. Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (internal quotation marks and citations omitted). satisfied element by is a serious satisfied prison officials. medical by Id. The first element is condition, showing while deliberate the second indifference by Mere negligence does not constitute deliberate indifference; [b]asically, a prison official must both be aware of the facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference. Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). We conclude that the symptoms Hall complained of 3 do not amount to a serious medical need such that the temporary deprivation of a dose of over-the-counter medication rises to the level of deliberate indifference. Hall speculates that his symptoms of could influenzal pneumonia have viral [any] been indicative pneumonia, of which aids, may or have 3 a small pox, secondary resulted in primary bacterial death from Hall initially complained of fever, body aches, sinus congestion, and sore throat, although his temperature was found to be normal on examination. 5 hemorrhage within the lungs. in the medical records that beyond his initial complaints. genuine issue of material However, there is no indication Hall s condition had progressed Pure speculation cannot create a fact. 532 Emmett, F.3d at 297. Moreover, a dispute over whether Hall s symptoms were cold-like or flu-like 4 does not create a genuine issue of material fact. See Anderson, 477 U.S. at 247-48. Therefore, we find that the district court properly granted summary judgment in Holtzman s favor. Accordingly, we affirm the district court s denial of Hall s motions to appoint counsel and grant of summary judgment in Holtzman s favor. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 4 Hall attempts to create an issue from Holtzman s statement in her motion for summary judgment that Hall was suffering from cold symptoms and Holtzman s statement in her informal brief acknowledging flu-like symptoms. 6

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