UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 

Holtzman1 and Sheriff Chuck Jenkins, alleging that Holtzman 

intentionally denied him medication on December 17, 2007, 

violating his Fifth, Eighth, and Fourteenth Amendment rights. 

Hall appeals the district court’s denial of his motions to 

appoint counsel and grant of summary judgment in Holtzman’s 

favor.2 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 U.S.C. § 1915(e)(1) (2006), “[t]he court may request an 

attorney to represent any person unable to afford counsel.” 

However, there is no absolute right to appointment of counsel; a 

plaintiff must present “exceptional circumstances.” Miller v. 

Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Exceptional 

 1

 Hall’s action incorrectly names “Anna Holsmith” as a 

defendant. The defendant/appellee’s name is Anna Holtzman. 

2

 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 does not authorize 

compulsory appointment of counsel). A district court’s denial 

of a motion to appoint counsel is reviewed for abuse of 

discretion. Miller, 814 F.2d at 966. 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 also challenges the district court’s grant of 

summary judgment in Holtzman’s favor and its denial 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 because his medical records do not 

contain a diagnosis. 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). However, 

“[p]retrial detainees are entitled to at least the same 

protection under the Fourteenth Amendment as are convicted 

prisoners under the Eighth Amendment.” Young v. City of Mount 

Ranier, 238 F.3d 567, 575 (4th Cir. 2001). Thus, we use the 

Eighth Amendment’s “deliberate 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 “deliberate 

indifference to serious medical needs of prisoners.” 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 must prove two elements: (1) that 

objectively the deprivation of a basic human need was 

sufficiently serious, and (2) that subjectively 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). The first element “is 

satisfied by a serious medical condition,” while the second 

element “is satisfied by showing deliberate indifference by 

prison officials.” Id. 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 of3 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 could have been indicative of “small pox, primary 

influenzal viral pneumonia, aids, or a secondary bacterial 

pneumonia [any] of which may have resulted in death from 

 3

 Hall initially complained of fever, body aches, sinus 

congestion, and sore throat, although his temperature was found 

to be normal on examination. 

5 
6 

hemorrhage within the lungs.” However, there is no indication 

in the medical records that Hall’s condition had progressed 

beyond his initial complaints. Pure speculation cannot create a 

genuine issue of material fact. Emmett, 532 F.3d at 297. 

Moreover, a dispute over whether Hall’s symptoms were cold-like 

or flu-like4 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. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before the court and argument would not 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.