UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Thomas Trupiano

v. Civil No. 09-cv-69-PB

Cottage Hospital

ORDER

Before the Court are two motions to amend the complaint

(doc. nos. 13 & 22); my preliminary review of the Complaint (doc.

nos. 1, 13, 14 & 22), see 28 U.S.C. § 1915(e)(2) and United

States District Court, District of New Hampshire Local Rule

(“LR”) 4.3(d)(2); and a renewed motion for appointment of

counsel, currently docketed as “2d Motion to Amend” (doc. no.

17). 

Trupiano filed his original complaint (doc. no. 1) in this

action in March 2009 and asserted a civil rights claim under 42

U.S.C. § 1983 and a pendent state law malpractice claim against

defendant, Cottage Hospital. Thereafter, Trupiano filed two

separate motions to amend the complaint (doc. nos. 13 & 22),

proposing to replace the civil rights claim with a claim under

the Emergency Medical Treatment and Active Labor Act (“EMTALA”),

42 U.S.C. § 1395dd. As the proposed amendments are timely filed

and consonant with the interests of justice and judicial economy,

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1The evidence offered in support of the renewed motion for

appointment of counsel shows that (1) Trupiano suffers from an

illness that can affect his thinking and judgment; and (2) a

petition for guardianship over his person was granted in

Massachusetts. 

2

I hereby grant both motions (doc. nos. 13 & 22). See Fed. R.

Civ. P. 15(a). The factual allegations contained in these

documents, along with the original complaint and its addendum

(doc. nos. 1, 13, 14 & 22), will henceforth be considered to be

the Complaint in this matter for all purposes.

 An additional motion filed by Trupiano, docketed as the “2d

Motion to Amend” (doc. no. 17), is a motion for appointment of

counsel, essentially objecting to this Court’s denial of his

original motion for appointment of counsel (doc. no. 6), and

providing supplemental grounds for appointing counsel for him.1

I hereby direct the Clerk to redocket the “2d Motion to Amend”

(doc. no. 17) as a renewed motion for appointment of counsel. As

Trupiano has informed the court in a letter to the Clerk that he

may seek to obtain counsel on his own upon his anticipated

release from prison on August 8, 2009, see Ltr. to Clerk (doc.

no. 20), I deny the motion without prejudice to Trupiano’s

ability to renew it upon his release from prison. 

My Report and Recommendation identifies the claims asserted

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3

in the Complaint as an EMTALA claim and a medical malpractice

claim under state tort law. My identification of the claims in

the Report and Recommendation will be considered for all purposes

in this case to be the claims raised in the Complaint. If

Trupiano disagrees with the identification of the claims therein,

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

of this Order, or he must properly move to amend the Complaint.

Conclusion

 For reasons stated more fully above and in my Report and

Recommendation, I grant the two motions to amend the complaint

(doc. nos. 13 & 22), and deny the renewed motion for appointment

of counsel (doc. no. 17) without prejudice to Trupiano’s ability

to renew the motion for appointment of counsel upon his release

from prison. My preliminary review of the Complaint (doc. nos.

1, 13, 14 & 22), as stated in my Report and Recommendation, has

yielded my recommendation that the EMTALA claim be dismissed,

while the state law medical malpractice claim may proceed against

the defendant through this Court’s retention of supplemental

jurisdiction under 28 U.S.C. § 1367(c). 

Accordingly, I order service of the Complaint on Cottage

Hospital. The Clerk’s office shall issue a summons against

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2Trupiano must keep this Court and Cottage Hospital apprised

of any change in his address and phone number upon his release

from prison, in accordance with L.R. 83.6(e) (attorneys and pro

se parties are under continuing duty to notify clerk’s office of

any change of address and telephone number).

4

Cottage Hospital and forward to the United States Marshal for the

District of New Hampshire (the “U.S. Marshal’s office”) the

summons and copies of the Complaint (doc. nos. 1, 13, 14 & 22),

the Report and Recommendation, and this Order. Upon receipt of

the necessary documentation, the U.S. Marshal’s office shall

effect service upon Cottage Hospital. See Fed. R. Civ. P.

4(c)(2). 

Cottage Hospital is instructed to answer or otherwise plead

within twenty days of service. See Fed. R. Civ. P. 12(a)(1)(A). 

Trupiano is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the Cottage Hospital by delivering or mailing the materials to it

or its attorney(s), pursuant to Fed. R. Civ. P. 5(b).2

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: August 3, 2009

cc: Thomas Trupiano, pro se

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