UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Kevin Hall 

 v. Civil No. 07-cv-117-JL 

Dennis Swartout, M.D. 

REPORT AND RECOMMENDATION

Kevin Hall has filed a motion (doc. no. 41) seeking to 

vacate the November 6, 2008, Judgment (doc. no. 28) entered in 

this case after summary judgment was granted in the Defendant’s 

favor. The Court finds that Plaintiff’s motion (doc. no. 41) is 

properly construed as one for relief from judgment, raised under 

Rule 60(b)(4), which allows relief from a judgment that is void, 

and Rule 60(b)(6), which allows the Court to grant relief from a 

judgment for any “reason that justifies relief.” Defendant 

objects (doc. no. 42). The motion to vacate has been referred 

to this Magistrate Judge for consideration.

PROCEDURAL BACKGROUND

I. 2007 - 2009

Kevin Hall filed a Complaint (doc. no. 1) in this matter on 

April 19, 2007. On September 17, 2007, the Court issued an 

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Order (doc. no. 8) directing service of the Complaint on 

defendant, Dr. Dennis Swartout, and denying Hall’s request for 

court-appointed counsel. 

On December 17, 2007, Magistrate Judge Muirhead presided 

over the pretrial conference in this matter. During the 

hearing, Hall orally moved for counsel on the bases that he was 

mentally ill, was on lots of medication, and was confined to a 

psychiatric unit in a New York prison. Judge Muirhead agreed to 

send Hall’s Complaint to an attorney to see if an attorney would 

agree to represent Hall on a volunteer basis, but stated that he 

would not force an attorney to do so. After the hearing, Judge 

Muirhead approved the Defendant’s proposed discovery plan (doc. 

no. 18) and adopted it as the Pretrial Scheduling Order in the 

case. Nothing in that Order addressed or referenced appointing 

counsel for Hall. No attorney ever volunteered, or was

appointed, to represent Hall in this matter. At no time during 

the pendency of the case did Hall renew his request for courtappointed counsel. 

On November 5, 2008, the Court granted Defendant’s motion 

for summary judgment (doc. no. 19), over Hall’s objection (doc. 

no. 25), on the basis that Plaintiff had failed to exhaust his 

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claims through the prison’s administrative grievance process. 

Judgment entered the following day (doc. no. 28). Hall timely 

appealed the decision to the First Circuit, which, on August 13, 

2009, affirmed the District Court’s order and denied the motion 

to appoint counsel Hall had filed in that Court. See Doc. Nos. 

37 (Judgment) and 38 (Mandate).

II. 2013 - 2014

More than four years later, in November 2013, Hall sent a 

letter (doc. no. 39) to the Clerk’s Office of this Court seeking 

a copy of the docket sheet in this case for the purposes of 

preparing a motion for relief from judgment. The Clerk’s Office 

sent Hall a copy of the docket sheet.

Seven months later, on July 24, 2014, Hall filed the 

instant Motion to Vacate Judgment (doc. no. 41). In his Motion, 

Hall argues that, due to his lack of counsel and his mental 

incompetence, the Court had no personal jurisdiction over him at 

the time it granted summary judgment. Hall also asserts that 

the Court, while the case was open, should have appointed him a 

representative to prosecute this matter on his behalf, pursuant 

to Rule 17(c)(2). 

In his objection (doc. no. 42), Defendant contends that 

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Hall was not granted court-appointed counsel because the Court 

found that no such appointment was warranted. Defendant also 

reiterates that Defendant was entitled to summary judgment in 

the case, based on Hall’s failure to administratively exhaust 

his claims.

DISCUSSION

I. Timeliness

A motion made under Rule 60(b) be made “within a reasonable 

time.” Fed. R. Civ. P. 60(c)(1). Hart gives no reason for the 

almost four year lapse between the August 2009 First Circuit 

decision affirming the District Court’s Judgment, and the filing 

of this motion, and the Court can discern none. Accordingly, 

the instant motion does not satisfy the “reasonable time” 

requirement in Rule 60(c)(1), and for that reason, the motion 

seeking relief under Rule 60(b) should be denied. 

II. Rule 60(b)(4)

Even if the motion were deemed timely, it should be denied 

to the extent it arises under Rule 60(b)(4) because the Judgment 

at issue is not void. Cf. O’Callaghan v. Shirazi, 204 F. App’x 

35, 37 (1st Cir. 2006) (per curiam) (unpublished) (judgment is 

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void only where court lacked subject matter or personal 

jurisdiction, or where court exceeded its judicial power 

resulting in due process violation). Personal jurisdiction over 

Hall existed because he chose to file an action in this court, 

and the claims he asserted at that time were within this court’s 

subject matter jurisdiction. See Kessler v. Crichton, 221 F.3d 

1342, 2000 WL 816242, at *1 (8th Cir. 2000) (unpublished table 

decision) (court had personal jurisdiction over plaintiff “by 

virtue of his filing the infringement action and voluntarily 

appearing at trial”). Accordingly, Hall has not shown that the 

Judgment is void, and the Motion, to the extent it arises under 

Rule 60(b)(4), should be denied for that reason.

III. Rule 60(b)(6) and Rule 17

Hall’s alternative bases for seeking relief under Rule 

60(b)(6) are his assertions that the Court improperly denied him 

representation when he informed the Court in 2008 that he 

believed himself to be incompetent, and his present, 

unsubstantiated assertion that he was in fact incompetent at 

that time. Rule 17(c)(2) of the Federal Rules of Civil 

Procedure requires a court to “appoint a guardian ad litem – or 

issue another appropriate order – to protect a[n] . . . 

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incompetent person who is unrepresented in an action.” The 

rule, however, does not require the court to appoint a guardian 

ad litem or other representative for every mentally ill litigant 

appearing before it. “Rule 17(c) does not require a district 

court to make a sua sponte determination of competency whenever 

a question exists regarding a plaintiff’s mental capacity; 

instead, the duty to appoint a guardian ad litem or ‘make such 

order as it deems proper,’ is triggered by ‘actual documentation 

or testimony’ of mental incompetency.” Perri v. City of New 

York, 350 F. App’x 489, 491 (2d Cir. 2009) (citations omitted). 

The record in this case indicates that Hall advised the 

Court that he was mentally ill, and that he believed himself to 

be incompetent. Nothing in the record indicates, however, that 

Hall ever provided the Court with any documentation or other 

evidence of incompetency sufficient to trigger the Court’s 

obligation to investigate Hall’s competence sua sponte, or to 

appoint a guardian under Rule 17(c)(2). Furthermore, Hall’s 

unsupported assertion that he was incompetent at the time 

Judgment entered in this case does not suffice at this time to 

demonstrate the existence of “extraordinary circumstances” 

warranting relief under Rule 60(b)(6). See United States v. 6 

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Fox Street, 480 F.3d 38, 46 (1st Cir. 2007). 

CONCLUSION

For the foregoing reasons, the Court recommends that the 

District Judge deny Plaintiff’s Motion to Vacate Judgment (doc. 

no. 41). 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). Failure to file objections within the 

specified time waives the right to appeal the district court’s 

order. See United States v. De Jesús-Viera, 655 F.3d 52, 57 

(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617 

F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by 

objections to magistrate judge’s report are subject to review by 

district court; issues not preserved by such objection are 

precluded on appeal).

______________________________

Andrea K. Johnstone 

United States Magistrate Judge 

September 12, 2014 

cc: Kevin Hall, pro se

Kenneth C. Bartholomew, Esq.

Michael A. Pignatelli, Esq.

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