                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



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