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Robert R. Oleson v. Bureau of Prisons

June 6, 2011

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



The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge

[Doc. No. 47]

OPINION AND ORDER

This matter is before the Court on the motion for appointment of counsel [Doc. No. 47] filed by pro se plaintiff, Robert R. Oleson. Plaintiff is currently incarcerated and argues that counsel should be appointed because he is "a paraplegic, limiting his access to the law library as it is over a half mile to the library, and he only has ten minutes to get there via a circuitous route." Motion ¶ 7.*fn1 Plaintiff contends that he has "filed some 140 exhibits with the Court, with more to come, demonstrating the fact that his Constitutional rights were violated and continue to be violated by the staff at F.C.I. Fort Dix, New Jersey." Id. ¶ 9. Additionally, plaintiff argues, "[t]he staff at F.C.I. Fort Dix are making a concerted effort to thwart [his] efforts to prosecute his case." Id. ¶ 10. No opposition has been filed to plaintiff's motion. The Court has exercised its discretion to decide plaintiff's motion without oral argument. See Fed. R. Civ. P. 78; L. Civ. R. 78.1. For the reasons to be discussed, plaintiff's motion is DENIED.

Plaintiff filed a Complaint on November 1, 2009 [Doc. No. 1] 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. See Memorandum Opinion, The Honorable Noel L. Hillman, Doc. No. 27 at

1. On January 14, 2010, Judge Hillman dismissed plaintiff's complaint without prejudice for plaintiff's failure to exhaust administrative remedies. [Doc. No. 8].*fn2 On May 10, 2010 this Court denied as moot [Doc. No. 17] plaintiff's Motion to Compel and Motion for Appointment of Counsel [Docs. Nos. 11, 15] without prejudice. On plaintiff's subsequent appeal to the United States Court of Appeals for the Third Circuit, Judge Hillman's August 18, 2010 Order was vacated and the case was remanded for further proceedings. [Doc. No. 40]. Upon remand, plaintiff filed the present "Motion to Appoint Pro Bono Counsel" [Doc. No. 47], along with his "Memorandum in Support of Motion to Appoint Pro Bono Counsel." [Doc. No. 53].

Plaintiff's present Motion to Appoint Pro Bono Counsel reiterates many of the allegations he made in his original complaint and subsequent filings with the court. Plaintiff's complaint contains nine (9) general allegations. The Court will endeavor to summarize those allegations here, so as to comprehensively address the present motion.

First, plaintiff alleges the staff at F.C.I. Fort Dix (hereinafter "staff") refuse to provide the "proper forms" and requests that blank administrative forms be provided. See Doc. No. 47-1 (hereinafter "Brief") at 2-3. Plaintiff argues the withholding of the administrative remedy forms amounts to a First Amendment violation. See Doc. No. 53 (hereinafter "Supplemental Brief" or "Supp. Brief") at 1.

Second, plaintiff argues the staff stole his prescription eyeglasses, refused to return them, and ignored his request for new glasses. Brief at 6-7.*fn3 Plaintiff asserts that "[d]epriving [him] of his prescription eyeglasses violated his Eighth Amendment Right [sic] to be free of cruel and unusual punishment...." Supp. Brief at 3.

Third, plaintiff claims defendant Thompson "took some legal papers from [p]laintiff's bed and disposed of them." Id. at 4; see also Brief at 6. Plaintiff argues this amounts to a constitutional violation, because "when prison officials seize and destroy legal papers, it clearly states a claim of denial of access to the courts . . . The right of access to the courts is substantive rather than procedural." Supp. Brief. at 5 (citing Wright v. Newsome, 795 F.2d 964 (11th Cir. 1986)).

Fourth, plaintiff complains of a "typographical error on [his] security/designation data form." Brief at 10.*fn4 Plaintiff argues that the prison officials' failure to correct the error demonstrates the officials' "harassment and vindictive behavior in retaliation against Plaintiff," in violation of the First Amendment. Supp. Brief at 6.

Fifth, plaintiff lists grievances concerning inoperable and inaccessible handicap toilets throughout the F.C.I. Fort Dix facility, including a "handicap stall" that plaintiff claims was used to store mops, buckets, brooms and scrub brushes during an inspection by prison officials. See Brief at 14-22; see also Supp. Brief at 7-8. Plaintiff maintains that "[t]he denial of access to handicap toilets violates the Eighth Amendment, the [F]ourteenth Amendment, and Title II of the ADA." Id. at 7.

Sixth, plaintiff complains of what he terms his "quest for a serviceable wheelchair." Brief at 23. Plaintiff claims he was assigned "an old dilapidated wheelchair that was designed for indoor use only." Id. After requesting a new chair on various occasions, plaintiff alleges the "frame cracked and the right foot board broke off." Id. Plaintiff asserts that he has been retaliated against for complaining about the condition of his wheelchair,*fn5 and argues that he has received conflicting information from Health Services Administrators regarding the status of a new wheelchair that was ordered for him (to replace his "for indoor use only" chair with a chair that is allegedly suitable for the premises). Id. at 26-28. According to plaintiff, "[d]enying [him] a serviceable wheelchair" results in a violation of the First, Eighth and Fourteenth Amendments. See Supp. Brief at 8.

Seventh, plaintiff complains of inaction relating to his requests for a transfer to a different facility. Plaintiff states he has sought a transfer because there are "no rehabilitation programs for stroke patients at FCI Fort Dix."*fn6 Brief at 34; Supp. Brief at 9. Plaintiff has also sought a transfer to obtain better educational opportunities. Brief at 34-35. Plaintiff states that following his several requests, "no action was taken to get [him] transferred to a medical facility where he could get proper treatment constituting deliberate/wanton indifference, and [p]laintiff asserts this was vindictive behavior on the part of the aforementioned defendants in retaliation for [p]laintiff filing his Civil Action and naming [defendants]." Supp. Brief at 10.

Eighth, plaintiff alleges that several of the walkways, roadways and ramps at the facility are in violation of the Code of Federal Regulations, amounting to an ...


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