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White v. U.S. Department of Justice Federal Bureau of Prisons FCC Petersburg

United States District Court, E.D. Virginia, Richmond Division

November 21, 2018

MARK OWEN WHITE, Petitioner,
v.
U.S. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FCC PETERSBURG, et al, Respondents.

          MEMORANDUM OPINION (GRANTING MOTION TO DISMISS)

          HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE

         Mark 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[1]("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 mandamus relief.

         I. STANDARD FOR MOTION TO DISMISS

         Pursuant 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).

         "A 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).

         The 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).

         II. SUMMARY OF PERTINENT ALLEGATIONS

         White 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[2] 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:[3]
[Pursuant to Title 28 U.S.C. § 1651[4] .. . 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.

(Pet. 1.)

         III. ANALYSIS

         "The 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 ...


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