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Oleson v. Bureau of Prisons

August 18, 2010

ROBERT R. OLESON, PLAINTIFF,
v.
BUREAU OF PRISONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Noel L. Hillman, U.S.D.J.

MEMORANDUM OPINION

IT APPEARING THAT:

1. On or about November 9, 2009, Robert R. Oleson, an inmate incarcerated at FCI Fort Dix in New Jersey, filed a Complaint asserting that Fort Dix officials violated his constitutional rights by failing to replace his wheelchair, failing to relocate him to a unit wherein the unit team is located on the first floor, removing his shower shoes, blanket and other items from his cell, requiring him to wait in the outside dining line in a wheelchair in the rain, and deleting visitors from his visitor list.

2. By Order and Opinion entered January 14, 2010, this Court dismissed the Complaint without prejudice for failure to exhaust administrative remedies, as required by 42 U.S.C. § 1997(e)(a). This Court found that the face of the Complaint and Plaintiff's submissions established that Plaintiff failed to exhaust administrative remedies. Specifically, based on the following language in the Complaint (as well as the documents submitted by Plaintiff), the Court found that, while Plaintiff submitted at least one BP-9 Request to the Warden, Plaintiff submitted no appeal to the Regional Director or to the General Counsel:

I gave the B.O.P. the opportunity to correct its mistakes, and its errors. It didn't! I am asserting a claim for damages only. Because I can obtain no relief from the B.O.P., it would serve no purpose to require exhaustion of Administrative Remedies - which I made every effort to do - before coming into the courts. As this court is well aware, it is improper for the federal courts to dismiss for lack of exhaustion in an action for money damages only by a federal inmate. (Docket entry #1 at p. 13.)

3. On January 29, 2010, Plaintiff filed a motion (Docket Entry #9) to reconsider dismissal of the Petition as unexhausted. On February 8, 2010, Plaintiff filed a motion (Docket Entry #10) for an order directing defendants to provide administrative remedy/appeal forms upon request. On April 14, 2010, Plaintiff filed a motion (Docket Entry #14) for injunctive relief enjoining Warden Zickefoose from imposing a rule requiring prisoners to travel from one point in the prison to another point within 10 minutes.

Motion for Reconsideration

4. Local Civil Rule 7.1(i) provides that a motion for consideration "shall be served and filed within 10 business days after the entry of the order or judgment[.]" A motion for reconsideration may be granted: (1) to correct manifest errors of law or fact upon which the judgment was based; (2) to present newly-discovered or previously unavailable evidence; (3) to prevent manifest injustice; and (4) an intervening change in prevailing law. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F. 3d 1194, 1218 (3d Cir. 1995); Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986).

5. In this case, Plaintiff's motion is timely, as it indicates that it was handed to prison officials for mailing on January 28, 2010.

6. This Court will grant Plaintiff's motion to reconsider the Order dismissing the Complaint as unexhausted because Plaintiff asserts that this Court misunderstood his statements in the Complaint with respect to exhaustion. However, after reconsideration, this Court will again dismiss the Petition as unexhausted.

7. Plaintiff maintains in his motion for reconsideration that he appealed to the Regional Director by way of a six-page letter attached to his Complaint as Exhibit 1.

8. Exhibit 1 to the Complaint is a six-page letter dated August 28, 2009. (Docket Entry #1-4 at pp. 2-7.) The first page of the letter contains Plaintiff's return address at FCI Fort Dix, the date of August 28, 2009, and a salutation of "Dear Sir." (Id. at p. 2.) The letter does not include the name or address of the addressee, it is not labeled as a substitute BP-10 or as a Regional Administrative Appeal, and it does not specify what Administrative Remedy Request is being appealed. For example, the first paragraph of the letter reads:

Dear Sir:

There are a number of matters here at Fort Dix (West) that I would like to bring to your attention. But first I would like to give you a little background information about myself. I had a stroke a number of years ago and I lost my equ[i]librium and I have extremely limited use of my legs. On bad days I have trouble formulating whole sentences and expressing them. ...


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