OLESON v. BUREAU OF PRISONS et al
Filing
117
MEMORANDUM OPINION. Signed by Judge Noel L. Hillman on 2/9/12. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT R. OLESON
Plaintiff,
v.
BUREAU OF PRISONS, et al.,
Defendants.
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No. 09-5706(NLH)
MEMORANDUM OPINION
Appearances:
ROBERT R. OLESON
#07729051
FCI FORT DIX
P.O. BOX 2000
FORT DIX, NJ 08640
PRO SE
ELIZABETH ANN PASCAL
U.S. DEPARTMENT OF JUSTICE
OFFICE OF THE U.S. ATTORNEY
401 MARKET STREET
P.O. BOX 2098
CAMDEN, NJ 08101
Attorney for defendants Spaulding, Brown, Thompson, Donahue,
Silver, Scarbrough, Espinoza, Castillo, and Warden Zickefoose
HILLMAN, District Judge
IT APPEARING THAT:
1. Plaintiff filed an amended complaint, pro se, alleging
deliberate indifference to his medical needs in violation of his
constitutional rights.
2. Plaintiff filed a “motion in limine” requesting that the
Court order defendants “Mr. Eichel and Ms. Palmisano” and an
individual named “Mr. Curren” to preserve tires from plaintiff’s
wheelchair that had become worn and had been replaced.
3. Plaintiff states in his motion that on August 25, 2010,
he gave defendant Palmisano “two extremely used rear tires off
[his] wheelchair” and an “Inmate Request to Staff form explaining
to her that [the tires were] needed as evidence” in this matter.
4. Plaintiff also states that on March 3, 2011, he asked
defendant Palmisano to send the used rear tires to the Court as
evidence that his medical needs were not being met.
5. Plaintiff also states that on March 9, 2011 he sent
defendant Eichel an “Inmate Request to Staff form asking him to
have Ms. Palmisano respond to his IRTS in a timely manner.”
6.
Plaintiff further states that an individual named
Officer Yeoman refused to allow him to put air in his wheelchair
tire and that because of Officer Yeoman’s refusal the tire was
damaged.
7.
Plaintiff does not allege that he was refused a new
tire, only that he had been ordered by “Mr. Curren” to turn over
the damaged tire which plaintiff wanted to have preserved as an
exhibit to his civil action.
“Motion in Limine”
8. We construe plaintiff’s motion in limine as a motion for
the preservation of evidence.
The standard for preservation of
evidence requires that a party who has reason to anticipate
litigation has an affirmative duty to preserve evidence which
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might be relevant to the issues in the lawsuit.
See Scott v. IBM
Corp., 196 F.R.D. 233, 248 (D.N.J. 2000) (evidence must be
relevant and it must be reasonably foreseeable that it would
later be discoverable).
9. Based on plaintiff’s amended complaint, there are no
allegations that defendants Palmisano or Eichel were deliberately
indifferent to plaintiff’s medical needs due to the replacement
of plaintiff’s worn wheelchair tires.
10. Even if plaintiff requested to amend his complaint to
add an allegation regarding the worn tires, such amendment would
be futile.1
See Fletcher–Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007) (stating that
Third Circuit case law “supports the notion that in civil rights
cases district courts must offer amendment—irrespective of
whether it is requested—when dismissing a case for failure to
state a claim unless doing so would be inequitable or futile”).
11. Based on the facts alleged by plaintiff, defendants
provided him with new tires when his old tires became worn out.
By virtue of defendants replacing the tires, it can be assumed
that the old tires were worn out or in disrepair.
Thus, there is
no apparent dispute over the worn condition of the old tires.
1
The Court notes that plaintiff filed an amended complaint
after he filed the motion in limine. Therefore, it is assumed
that plaintiff included in his amended complaint all potential
claims that he wishes to pursue.
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12.
More importantly, the replacement of the worn tires
shows that defendants were not indifferent to plaintiff’s medical
needs, but rather, addressed his medical needs by providing him
with new wheelchair tires.
13. Therefore, the old tires are not relevant to plaintiff’s
claims and it is not reasonably foreseeable that the tires would
later be discoverable since the replacement of plaintiff’s worn
wheelchair tires would undermine rather than support a claim of
deliberate indifference to medical needs.
14. Likewise, plaintiff’s statements that Officer Yeoman
permitted his wheelchair tire to become damaged by refusing to
allow him to put air in the tire do not support any claims in his
amended complaint.
15. Officer Yeoman is not a defendant and plaintiff
indicates in his reply that he does not wish to add him as a
defendant.
Even so, any amendment to plaintiff’s amended
complaint to add Officer Yeoman would be futile because, based on
the alleged facts in his motion, there is no evidence that the
destroyed tire was not replaced.
16. Furthermore, in his reply, plaintiff concedes the
government’s point that “[b]eing given a new tire for a
wheelchair so that it works does not demonstrate deliberate
indifference to serious medical needs.”
17. Accordingly, because the worn or damaged wheelchair
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tires are not relevant to any claims in plaintiff’s amended
complaint, plaintiff’s “motion in limine” requesting the
preservation of the wheelchair tires as evidence will be denied.
An appropriate Order will be entered.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
Dated:
February 9, 2012
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