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Robert R. Oleson v. Bureau of Prisons

February 9, 2012

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



The opinion of the court was delivered by: Hillman, District Judge

MEMORANDUM OPINION

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 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.*fn1 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 ...


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