1Although Hall references the Fifth Amendment, he provides 

no allegations in support such claim, therefore, I construe the

complaint to allege claims only under the Eighth and Fourteenth

Amendments.

2Because Hall is no longer incarcerated at the CCDOC, I

recommend that his request for injunctive relief be denied as

moot.

3The following CCDOC officers are named defendants:

Mousseau; Westney; Erwin; Travis Smith; Hudson; Chumey; Steiner;

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin D. Hall

v. Civil No. 05-cv-381-JD

Cheshire County Department

of Corrections, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Kevin D. Hall has filed a complaint,

pursuant to 42 U.S.C. § 1983, alleging that defendants denied him

adequate medical care in violation of his rights under the

Fifth1, Eighth and Fourteenth Amendments to the United States

Constitution (doc. nos. 2 and 5). Seeking monetary and

injunctive relief2, he brings this action against the Cheshire

County Department of Corrections (“CCDOC”), the CCDOC Medical

Department, an unnamed CCDOC doctor, CCDOC Superintendent Richard

N. Van Wickler and several CCDOC corrections officers.3 Also

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 1 of 23
Desmarais; Trombi; Swain; Fallon; Utton; Clark; Ouellette; Neese;

Walker; Schneider; Boucher; Colby; Robin Cook; and Smith.

4Hall improperly names Zerba as a defendant allegedly

responsible for instituting certain prison policies at the CCDOC.

To the extent he intends to bring suit against the Commissioner

of the Cheshire County Department of Corrections he is instructed

to amend his complaint accordingly.

2

named as a defendant is Roger Zerba, Cheshire County

Commissioner.4 In addition, Hall has filed motions for

appointment of counsel (document no. 2) and a request for copies

of the complaint and amendment thereto (document no. 8). 

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). For the reasons stated below, I find that Hall

has alleged Eighth Amendment denial of adequate medical care

claims against Van Wickler, Cook and the unnamed CCDOC doctor. 

He has also alleged a Fourteenth Amendment equal protection claim

against Van Wickler. I recommend dismissal of all remaining

claims. I also deny the motions for appointment of counsel and

request for copies of the complaint and amendment thereto be

denied.

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 2 of 23
3

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by the

plaintiff and inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(stating the “failure to state a claim” standard of

review and explaining that all “well-pleaded factual averments,”

not bald assertions, must be accepted as true). This review

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988). I apply this standard in reviewing Hall’s

complaint.

Background

Hall is currently incarcerated at the Hillsborough County

House of Corrections. He claims to be a diagnosed schizophrenic

with a history of repeated episodes of self-mutilation, some of

which allegedly occurred during his previous incarcerations at

CCDOC in 1982 and 1995. This action stems from a series of

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 3 of 23
4

events that occurred at the CCDOC from October 2004 through

February 2005, when Hall sustained serious injuries from

successive acts of self-mutilation and was allegedly denied

adequate medical care. The following facts are construed in the

light most favorable to Hall and in support of his claims against

the twenty-six named defendants.

Cell Number 211

Following his transfer from the Valley Street Jail to the

CCDOC in October 2004, Hall met with Smith, who discussed placing

him in the general prison population under C-4 status, despite

his history of self-inflicted harm. Subsequently he was assigned

a C-4 custody status and transferred to cell number 211, a

dayroom for pretrial detainees located in the general prison

population.

During that time, Hall met regularly with a mental health

counselor but subsequently became distraught. An incident report

by Mousseau reveals that on December 26, 2004, Hall’s cellmate

requested a transfer when Hall kept him awake during the night

“talking about murder”, self-mutilation and suicide. A second

cellmate requested a transfer for the same reasons on December

29, 2004. When Mousseau investigated the incident, Hall

threatened to harm himself and requested to see Superintendent

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 4 of 23
5

Van Wickler. Mousseau ordered Hall to return to his cell and

lock-down and stated that he would speak to Van Wickler. 

Cell Number 207 and to Isolation Cell

Within fifteen to thirty minutes, the CCDOC announced a

facility lock-down, and Van Wickler, along with officers suited

in riot gear, visited Hall in the dayroom for a cell extraction. 

At that time, Hall had in his possession sharp metal wires and

fragments from a porcelain cup, all of which he immediately began

to swallow in the presence of the prison officials. He was

extracted and transferred to cell number 207. Van Wickler

permitted Hall his undershorts, a pair of glasses and a book and

also questioned him about the objects he swallowed. When Hall

identified the objects and stated that a piece of wire was lodged

in his throat and causing him pain, Van Wickler assured him that

the CCDOC would provide him x-rays and medical care. Van Wickler

advised Hall that he would be placed in an isolation cell for a

four-day time-out and returned to the dayroom on January 3, 2005,

conditioned upon his good behavior. 

Cell Number 1 (East Block) and Cell Number 113 (Bubble)

An incident report of December 30, 2004 reveals that

Sergeant Westney responded to Hall’s complaints of pain by

escorting a nurse to his cell for medical treatment and

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 5 of 23
5I liberally construe Hall’s references to “the captain” to

mean defendant Robin Cook.

6

examination. When the nurse advised Hall that she could not see

the razor and glass allegedly lodged in his throat, Hall began to

yell and threatened to kill prison officials and other inmates. 

Believing that he was denied medical treatment and that the CCDOC

was trying to kill him, Hall panicked and screamed for help. 

Later, when no one responded, he used the sharpened metal frames

of his eyeglasses to slash his arms, legs and head, thereby

causing himself to bleed profusely. 

Officer Erwin and a CCDOC nurse were nearby in the dayroom

number 221 dispensing medications and observed that Hall was

covered with blood and threatening to kill himself. The nurse

allegedly failed to help him and walked away, even though Hall

continued to cut himself in her presence. Erwin’s incident

report of December 31, 2004 reveals that Hall’s cuts were small

and superficial. The incident was reported to Officer Hudson,

and when she visited Hall and asked why he was cutting himself,

he proceeded to slash his forehead. 

That evening, Cook5 and an unidentified nurse visited Hall

and provided him with medical treatment. Cook also photographed

Hall and his cell, assured him he would receive medical care and

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 6 of 23
7

transferred him to East Block cell number 1. Hall informed

Corporal Neese that a wire was lodged in his throat, he had

severe pain in his throat and abdomen and needed immediate

medical attention. Since the nurse had already responded to

Hall’s complaints, Neese provided him with ice cream for his

throat. 

In an incident report of January 1, 2005, Officer Travis

advised Cook that Hall was spitting up blood and complaining of

throat and stomach pain. Cook ordered Hall to be transported to

a hospital emergency room but approximately one hour later

cancelled the order. An incident report of January 2, 2005

reveals that Corporal Desmarais observed Hall bleeding from both

thighs and his left arm. Hall admitted the cuts were not lifethreatening and were done in an effort to be transported to the

hospital for x-rays because he swallowed glass and metal objects

that needed to be removed. Desmarais discussed the incident with

Cook.

On January 3, 2005, Cook and an unidentified nurse visited

Hall and observed that he was covered with blood and fresh cuts. 

The nurse treated him, and Cook transferred him to cell number

133, known as “the bubble.” On January 5, 2005, the unidentified

CCDOC doctor evaluated Hall and ordered x-rays. He explained

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 7 of 23
8

that the metal shards were passing through Hall’s system without

any problems and ordered him to continue eating ice cream and

drinking milk. Hall responded that he was in severe pain. 

An incident report of January 7, 2005 reveals that while

Officer Boucher was escorting a nurse on med pass, she observed

Hall holding a metal object. Hall threatened to kill Boucher and

her family and requested that she dispense his prescribed

medications. Boucher declined because of the danger posed by

Hall’s threats and opening the food tray to his cell. In an

incident report of January 8, 2005, Officer Swain noted

superficial cuts on the lower front of Hall’s thigh and that Hall

claimed to have swallowed a hand full of glass, although there

was no evidence or source of glass.

Cell Number 110

An incident report of January 8, 2005 reveals that Westney

observed blood in Hall’s cell and that he had superficial cuts on

his legs, head and arms. Hall informed Westney that he was in a

lot of pain and unhappy with his transfer to cell number 110,

which had only a twelve inch square window and a steel door. 

While there, he ripped the steel mirror and frame off the wall

and threatened to harm himself. After his requests for transfer

back the cell number 133 were denied, he broke the vent in the

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 8 of 23
9

cell ceiling and used a piece of it to cut himself. 

Hall then made a deep cut in his arm, which bled profusely;

his requests for bandages and medical treatment were denied. An

incident report of January 9, 2005 by Westney reveals that

Officer Ouellette reported that Hall had “a lot of blood running

from his left arm.” Although Hall stated that he had severe pain

and could feel objects in his stomach, he nevertheless refused

treatment from a CCDOC nurse. 

Without providing any relevant dates, Hall alleges that Van

Wickler visited him, observed pools of blood in the cell and 

walked away. Thereafter Cook and a nurse visited Hall,

photographed him and the cell, brought him to the nurse’s office

and transferred him temporarily to cell number 112 or 133 and

then back to cell 100 after it was cleaned.

 On January 12, 2005 Hall was evaluated by a CCDOC doctor who

ordered additional x-rays and stated that he was fine and that

the metal was passing through him. Hall replied that he was in

severe pain. The doctor evaluated Hall again on January 19, 2005

and explained that all the metal had passed through him and that

he would be fine. Once again Hall explained that he was in

severe pain. He relayed his complaints of pain to Cook and

requested medical treatment and a visit to the hospital. Cook

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 9 of 23
10

allegedly denied him medical care on the basis that his injuries

were self-inflicted and he was manipulating the prison system.

Cheshire Hospital

On January 25 or 26, 2005, Hall was transported to Cheshire

Hospital. The examining doctor allegedly ordered immediate

removal of the metal pieces and questioned the CCDOC’s delay in

bringing Hall to the hospital. Hall underwent endoscopic surgery

to remove a metal piece that punctured his intestine. He was

then transported back to cell number 110. An incident report of

January 31, 2005 by Corporal Clark reveals that he transferred

Hall to cell number 113 and bandaged a small self-inflicted wound

on his right arm.

Cell Number 110

While in cell number 110 during the first week in February,

Hall broke another vent in his cell, swallowed more metal shards

and cut himself. A series of incident reports by Ouelette,

Neese, Walker and Schneider, dated February 4 to February 6,

2005, reveal that Hall pretended to swallow more pieces of metal. 

At least one incident was reported to Cook. An incident report

of February 7, 2005 by Desmaris reveals that “Hall expanded the

hole in the ceiling in the isolation cell 110 to approximately

three and a half feet around exposing metal, mesh and metal

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 10 of 23
11

braces in the ceiling.” According to Hall, none of the above

corrections officers offered him medical care. Cook and an

unidentified nurse, however, assured him he would be provided xrays. 

Subsequently, Hall’s request to be transferred to cell

number 113 was denied. He responded by destroying part of his

cell ceiling, extracting and swallowing more metal and cutting

himself. The following morning he was transferred to cell number

112 and then back to cell number 110. When he was denied medical

treatment, he responded by destroying the speaker and vents in

his cell and digging through the back wall of his cell and into

cell number 223. He was subsequently transferred to cell number

113.

Valley Street Jail

On February 11, 2005, Hall was transferred to the Valley

Street Jail (VSJ) in Manchester, New Hampshire. Several days

after his transfer, officials at VSJ transported him to Elliot

Hospital where he was allegedly admitted for three weeks and

underwent extensive abdominal surgery and removal of a portion of

his intestine. He was returned to VSJ on March 11, 2005 and

placed in the medical unit for two and one half weeks.

The complaint alleges that defendants have denied Hall

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 11 of 23
6While the provisions of the Eighth Amendment do not extend

to pretrial detainees, the Due Process Clause of the Fourteenth

12

essential and proper medical care for his injuries and denied him

equal protection by refusing him medical treatment that was

provided to similarly situated inmates. Defendants’ acts and

omissions, Hall claims, rise to the level of constitutional

deprivations in violation of his rights under the Eighth and

Fourteenth Amendments.

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In

order to be held liable for a violation under Section 1983, a

defendant’s conduct must have been a cause in fact of the alleged

constitutional deprivation. See Monell v. Department of Social

Servs., 436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056,

1061-62 (1st Cir. 1997). The premise of Hall’s Section 1983

claim is that the defendants, acting under color of state law,

denied him adequate medical care in violation of his rights under

the Eighth and Fourteenth Amendments.6

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 12 of 23
Amendment provides them with rights which are at least as great

as the Eighth Amendment protections available to a convicted

prisoner. See Burrell v. Hampshire County, 307 F.3d 1, 7 (1st

Cir. 2002).

13

A. Denial of Adequate Medical Care

To state an Eighth Amendment claim premised on inadequate

medical care, “a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to

serious medical needs.” See Estelle, 429 U.S. at 97. In order

to be found deliberately indifferent, a prison official “must

both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also

draw the inference.” Id. See Farmer v. Brennan, 511 U.S. 825,

837 (1993). Deliberate indifference may be manifested by prison

doctors in their response to the prisoner’s needs or by prison

personnel “intentionally denying or delaying access to medical

care or intentionally interfering with the treatment once

prescribed.” Estelle, 429 U.S. at 104-05. “A ‘serious medical

need’ is one ‘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.’” See

Mahan v. Plymouth County House of Corrections, 64 F.3d 14, 17-18

(1st Cir. 1995)( quoting Gaudreault v. Salem, 923 F.2d 203, 208

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 13 of 23
14

(1st Cir. 1990). 

Here, the complaint alleges sufficient facts to state an

Eighth Amendment claim for the denial of adequate medical care

against Van Wickler, Cook and the unnamed CCDOC doctor. First,

Hall has described a serious medical condition by stating that he

suffers from schizophrenia and sustained serious bodily injuries

as a result of repeated episodes of self-mutilation. The

severity of his injuries required him to undergo a three-week

hospital admission and extensive abdominal surgery involving the

removal of a portion of his intestine.

Second, Hall has demonstrated deliberate indifference with

respect to Van Wickler, Cook and the unnamed CCDOC doctor by

alleging that once they had knowledge of his serious medical

needs, they nevertheless denied him proper medical care or failed

to ensure that he received proper care. As evidenced by various

incident reports filed in support of the complaint, it is clear

that Van Wickler, Cook and the unnamed CCDOC doctor personally

met with Hall and had knowledge of his medical condition but

nevertheless denied him proper care. 

On January 5, 2005 and January 12, 2005, the unidentified

CCDOC doctor evaluated Hall and explained that the metal shards

were passing through his system without any problems. Despite

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 14 of 23
15

Hall’s repeated complaints of severe pain, the doctor simply

advised him to continue eating ice cream and drinking milk. No

other medical care was provided. The doctor evaluated Hall again

on January 19, 2005 and explained that all of the metal had

passed through him and that he would be fine. Hall again

complained that he was in severe pain, but the doctor failed to

provide him adequate care. 

In January 2005, Hall informed Cook that he was in severe

pain and requested medical treatment and a hospital visit. Cook

denied him adequate care and warned him not to manipulate the

prison system. On December 31, 2004 and in early January and

February 2005, Cook visited Hall and observed his physical

condition but failed to adequately respond to his repeated

requests for x-rays and medical care. On January 1, 2005 Cook

cancelled Hall’s scheduled trip to a hospital emergency room.

In addition, Hall personally informed Van Wickler of his

need for medical care. The record reflects that on December 26,

2004 and in early January 2005, Van Wickler visited Hall,

observed his physical condition and injuries and listened to his

repeated requests for medical treatment. Although Van Wickler

assured Hall that he would receive medical treatment and x-rays,

that care was never provided. 

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 15 of 23
7If Hall wishes to pursue his claims against the unnamed

CCDOC doctor, he will have to obtain the defendant’s full name in

discovery and appropriately move to amend the complaint. Hall is

further instructed to forward a summons to this Court with the

defendant’s proper name.

16

If true, the allegations demonstrate that defendants’ acts

and omissions prevented Hall from receiving prompt and essential

medical treatment for his serious medical needs. Accordingly, I

find that Hall has stated Eighth Amendment denial of adequate

medical care claims against Van Wickler, Cook and the unnamed

CCDOC doctor.7 Despite naming twenty correctional officers for

the summonses, he has not alleged any facts as to any of them

which would support a claim. Because the complaint wholly fails

to provide any factual predicate in support of Hall’s related

claims against any of the remaining defendants, I recommend

dismissal of the claims against them.

B. Denial of Equal Protection

Hall alleges that Van Wickler discriminated against him by

denying him adequate medical care while providing other similarly

situated inmates adequate medical care. Defendant’s acts and

omissions allegedly abridge Hall’s right to equal protection of

the laws in violation of the Fourteenth Amendment.

 The Equal Protection Clause of the Fourteenth Amendment

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 16 of 23
17

mandates that similarly situated persons be treated alike absent 

a rational basis for doing otherwise. See City of Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985)(citing

Plyler v. Doe, 457 U.S. 202, 216 (1982)); accord Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000)(recognizing equal

protection claim where plaintiff alleges that [he] has been

intentionally treated differently from others similarly situated

and there is no rational basis for the difference in treatment). 

To prevail on an equal protection claim, Hall must show that he

was treated differently than inmates who were similarly situated

and that such unequal treatment was based on impermissible

considerations such as race, religion, intent to inhibit or

punish the exercise of constitutional rights, or malicious or bad

faith intent to injure a person. See Barrington Cove, LP v. R.I.

Hous. and Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir.

2001)(quoting Rubinovitz v. Rogato, 60 F.3d 906, 909-10 (1st Cir.

1995).

Here, Hall alleges that Van Wickler denied him adequate

medical care while providing other similarly situated inmates

with adequate medical care, despite the fact that the other

inmates suffered from less severe medical conditions. According

to Hall, one inmate suffered from an injured fingertip and was

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 17 of 23
18

immediately transported to Cheshire Hospital for treatment. A

second inmate sustained an injury from a fall and also was

immediately transported to Cheshire Hospital for treatment. Even

though Hall suffered from more serious injuries, he was denied

adequate and prompt care at the CCDOC during October 2004 and

February 2005.

Accepting Hall’s allegations as true, it appears that he was

treated differently than inmates who were similarly situated and

who suffered from less severe medical needs. To the extent

Hall’s unequal treatment was based on an impermissible

considerations, his allegations, along with the inferences

derivable therefrom, are sufficient to give rise to viable

Fourteenth Amendment equal protection claim against Van Wickler.

II. Municipal Liability

Named as a defendant in this action is the CCDOC, a

municipal entity. Municipalities and local government entities

are “persons” within the meaning of Section 1983. See Monell,

436 U.S. at 690. A municipal entity cannot be held liable under

Section 1983 on a theory of respondeat superior or vicarious

liability; rather the municipality itself must proximately cause

the constitutional injury, through promulgation or tacit approval

of a policy or custom. See Canton v. Harris, 489 U.S. 378, 385

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 18 of 23
19

(1989). To state a viable Section 1983 claim, a plaintiff must

allege in substance that the challenged municipal custom or

policy was the “moving force” behind the constitutional

violations. See Brown, 520 U.S. at 404; McCabe v. Life-Line

Ambulance Service, Inc., 77 F.3d 540, 544 (1st Cir. 1996)

(citations omitted).

In this action, if Hall intends to pursue claims against the

CCDOC he must, at a minimum, allege that his constitutional

deprivations were the product of a municipal custom or policy. 

Even liberally construing the complaint, I cannot reasonably

conclude that the wrongful conduct ascribed to the defendants was

the product of any unconstitutional municipal custom or policy. 

Instead, the complaint plainly alleges that the wrongful conduct

to which Hall was subjected resulted from the actions taken by

individual defendants and not as the result of a policy

statement, ordinance, regulation or officially adopted decision. 

See Monell, 436 U.S. at 690. Nothing in the complaint

demonstrates how the county or the CCDOC was the “moving force”

behind the actions or omissions by Van Wickler, Cook or the

unnamed CCDOC doctor. Accordingly, I conclude that the complaint

fails to state a viable claim premised upon municipal liability

and, therefore, recommend that the CCDOC be dismissed from this

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 19 of 23
20

action.

Construed liberally, the complaint also names Van Wickler,

Cook and the unnamed CCDOC doctor in their official capacities as

officers of the CCDOC. Official capacity suits against officers

of an agency are simply “another way of pleading an action

against an entity of which an officer is an agent.” Monell, 436

U.S. at 690 n.55. See also Brandon v. Holt, 469 U.S. 464, 471

(1984)(suits against parties in their official capacities treated

as suits against the municipality). Because I find no municipal

liability as to the CCDOC, I extend that reasoning to defendants

Van Wickler, Cook and the unnamed CCDOC doctor and conclude that

the official capacity claims against them fail.

III. Appointment of Counsel

Hall moves for appointment of counsel, asserting that in

light of his mental condition and diagnosis of schizophrenia and

the legal complexity of his case and the constitutional issues

raised, he cannot adequately represent himself. 

An indigent litigant must show that exceptional

circumstances exist to justify appointment of counsel, such that

without counsel the litigant most likely would be unable to

obtain due process of the law. See DesRosiers v. Moran, 949 F.2d

15, 23-24 (1st Cir. 1991). “In determining whether the

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 20 of 23
21

circumstances are ‘exceptional,’ courts have considered such

factors as the merits of the case, the litigant’s capability of

conducting a factual inquiry, the complexity of the legal and

factual issues, and the ability of the litigant to represent

[himself].” Weir v. Potter, 214 F. Supp. 2d 53, 54 (D. Mass.

2002)(citing Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir.

1986)).

While Hall maintains that he is unable to represent himself

adequately, he has not demonstrated an inability to litigate or

other exceptional circumstances to justify the appointment of

counsel. He has filed an articulate fifty-page complaint and

eleven-page amendment thereto, along with voluminous supporting

documents, in which he has presented his claims clearly and

effectively. At this preliminary stage in the proceedings,

appointment of counsel does not appear to be necessary. Having

considered his circumstances and the applicable law regarding his

rights to legal representation, I recommend that his motion be

denied without prejudice to it being renewed at a later date

should circumstances warrant renewal.

Conclusion

For the reasons stated above, I find that Hall has alleged

Eighth Amendment denial of adequate medical care claims against

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 21 of 23
22

Van Wickler, Cook and the unnamed CCDOC doctor. I further find

that he has alleged a Fourteenth Amendment equal protection claim

against Van Wickler. I recommend dismissal of all remaining

claims. I further recommend that the motions for appointment of

counsel and copies of the complaint and amendment thereto be

denied. 

Accordingly, by separate order issued simultaneously with

this report and recommendation, I authorize the above viable

claims to proceed. 

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the complaint. If the

plaintiff disagrees with the identification of the claims herein,

he must do so by objection filed within ten (10) days of receipt

of this report and recommendation, or he must properly move to

amend the complaint. 

Any further objection to this report and recommendation must

be filed within ten (10) days of receipt of this notice. Failure

to file objections within the specified time waives the right to

appeal the district court’s order. See 28 U.S.C. § 636(b)(1);

see also Unauthorized Practice of Law Committee v. Gordon, 979 

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 22 of 23
23

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

792 F.2d 4, 6 (1st Cir. 1986).

 /s/ James R. Muirhead 

James R. Muirhead

United States Magistrate Judge

Date: February 10, 2006

cc: Kevin D. Hall, pro se

Case 1:05-cv-00381-JD Document 11 Filed 02/10/06 Page 23 of 23