United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING MOTION TO
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE
Owen White, a federal inmate proceeding pro se,
filed this petition for a writ of mandamus
("Petition," ECF No. 1). White names as
respondents: the U.S. Department of Justice Federal Bureau of
Prisons FCC Petersburg and Warden Wilson("Respondents"). White contends
that Respondents have failed to provide appropriate medical
care for his Hepatitis C. The matter is before the Court on
Respondents' Motion to Dismiss. For the reasons stated
below, the Motion to Dismiss (ECF No. 12) will be granted
because White fails to establish that he is entitled to
STANDARD FOR MOTION TO DISMISS
to the Prison Litigation Reform Act ("PLRA") this
Court must dismiss any action filed by a prisoner if the
Court determines the action (1) "is frivolous" or
(2) "fails to state a claim on which relief may be
granted." 28 U.S.C. § 1915(e)(2); see 28
U.S.C. § 1915A. The first standard includes claims based
upon "an indisputably meritless legal theory," or
claims where the "factual contentions are clearly
baseless." Clay v. Yates, 809 F.Supp. 417, 427
(E.D. Va. 1992) (quoting Neitzke v. Williams, 490
U.S. 319, 327 (1989)), aff'd, 36 F.3d 1091 (4th
Cir. 1994). The second standard is the familiar standard for
a motion to dismiss under Fed.R.Civ.P. 12(b)(6).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5 A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and
the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and "a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief,' in order to 'give the
defendant fair notice of what the ... claim is and the
grounds upon which it rests.'" Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (second alteration
in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must allege facts sufficient "to raise a right
to relief above the speculative level," id.
(citation omitted), stating a claim that is "plausible
on its face," id. at 570, rather than merely
"conceivable." Id. "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678 (citing Bell Ad.
Corp., 550 U.S. at 556). In order for a claim or
complaint to survive dismissal for failure to state a claim,
the plaintiff must "allege facts sufficient to state all
the elements of [his or] her claim." Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003) (citing Dickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002); Iodice v. United States,
289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court
liberally construes pro se complaints, Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it will not
act as the inmate's advocate and develop, sua
sponte, statutory and constitutional claims that the
inmate failed to clearly raise on the face of his complaint.
See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir.
1997) (Luttig, J., concurring); Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
SUMMARY OF PERTINENT ALLEGATIONS
initiated this action by filing the instant Petition. (Pet.
1-11.) By Memorandum Order entered on April 13, 2018, the
Court provided White with the option to file a particularized
complaint and to pursue this matter as a
Bivens action. (ECF No. 8.) White did not file a
particularized complaint. Instead, White responded,
indicating that he intended to pursue this action as a
petition for a writ of mandamus. (ECF No. 9.)
In his Petition, White states:
[Pursuant to Title 28 U.S.C. § 1651 .. . Petition for
Writ of Mandamus hereto is sought for relief from lack of
medical treatment for [White's] Hepatitis C [c]hronic
[l]iver [d]isease through anti-viral therapy, or proper
medical care evaluation for treatment, under recognized and
newly adopted standard for evaluated methods of treatment in
light of Hepatitis [c]ure(s). Instant Petitioner, [White, ]
is a federal prisoner seeking order of this judicial forum to
compel the U.S. D.O.J. Federal Bureau of Prisons hereof at
FCC Petersburg, Virginia under supervision of Warden Wilson
to fully upgrade substandard policy, which allows inmate(s),
i.e., Mark Owen White to linger in Hepatitis C affect and
agony, without anti-viral therapy treatments.
common-law writ of mandamusf] [is] codified in the All Writs
Act at 28 U.S.C. § 1651" South Carolina v.
United States, No. 18-1148, ___F.3d__, 2018 WL 5305323,
at *9 (4th Cir. Oct. 26, 2018) (citation omitted);
cf. 28 U.S.C. § 1361 ("The district courts
shall have original jurisdiction of any action in the nature
of mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the
plaintiff."). However, mandamus is a drastic remedy,
only to be granted in extraordinary circumstances. In ...