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ABDUL-JABBAR MUHAMMAD v. UNITED STATES BUR. OF PRI

April 30, 1992

Abdul-Jabbar Muhammad, Plaintiff,
v.
United States Bureau of Prisons, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

ORDER

 Before the Court is the defendant's Motion to Dismiss the above-captioned action along with supporting and opposing memoranda. The Court has carefully considered the submissions of the parties, the applicable law, and the entire record herein, and concludes that it cannot grant to the plaintiff the relief he seeks.

 A writ of mandamus is used to compel an officer of the United States or any agency thereof to perform a duty owed to the plaintiff. 28 U.S.C. § 1361. Mandamus is proper where:

 (1) the plaintiff has a clear right to relief;

 (2) the defendant has a clear duty to act; and

 (3) there is no other adequate remedy available to the plaintiff.

 Council of and for the Blind, Inc. v. Regan, 228 App. D.C. 295, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en banc).

 The Court does not have the power to grant the plaintiff's request for a writ of mandamus to direct the Bureau of Prisons to segregate prisoners who are HIV-positive or have AIDS. The plaintiff has demonstrated neither that he has a clear right to relief or that the defendant has a clear duty to act.

 The Bureau of Prisons ("BOP"), as administrator of the prison system, is invested with a great deal of discretion regarding institutional operations. See, e.g., Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64 , 107 S. Ct. 2254 (1987), Bell v. Wolfish, 441 U.S. 520, 547, 60 L. Ed. 2d 447 , 99 S. Ct. 1861 (1979). In response to the AIDS crisis, the BOP has developed a policy that an inmate who tests HIV positive may be segregated "when there is reliable evidence that the inmate may engage in conduct posing a health risk to another person." See BOP Program Statement No. 5214.3, October 2, 1987, P1 (attached to Def. Reply). This policy is consistent with the general medical understanding that AIDS is not spread through casual contact. Id. P3; Center for Disease Control HIV Test Counseling literature (attached to Def. Reply).

 The remedy sought by plaintiff, that is, segregation of all prisoners who test positive for HIV or have AIDS, is not a remedy available to the general public, and has not been found generally available to prisoners in the courts. See, e.g., Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990), aff'd, 930 F.2d 909 (2d Cir. 1991); Portee v. Tollison, 753 F. Supp. 184 (D.S.C. 1990), aff'd, 929 F.2d 694 (4th Cir. 1991); Alston v. Dep't of Justice, 1989 U.S. Dist. LEXIS 9222 (D.D.C. 1989); Feigley v. Fulcomer, 720 F. Supp. 475, 482-85 (M.D. Pa. 1989).

 Given that the weight of authority on this issue indicates that plaintiff is not entitled to relief, he has failed to show that he is entitled to the extraordinary remedy of mandamus which he seeks. Therefore mandamus shall not issue.

 Plaintiff also seeks access to various information pursuant to the FOIA and the Privacy Act. However, plaintiff did not request the information he seeks from the agencies. Rather, he filed his request directly in this Court. Under both the FOIA and the Privacy Act, a plaintiff must exhaust his administrative remedies before filing a suit. See, e.g., Oglesby v. Dep't of Army, 287 App. D.C. 126, 920 F.2d 57, 61-62 (D.C. Cir. 1990) (FOIA); Crooker v. Federal Bureau of Prisons, 579 F. Supp. 309, 311 (D.D.C. 1984) (Privacy Act). Plaintiff's failure to request the documents directly from the agencies constitutes a failure to exhaust his administrative remedies. See 5 U.S.C. § 552(a)(6)(C); § 552a(g)(1). Therefore his suit is premature and the Court shall dismiss his FOIA and Privacy Act claims without prejudice to renewal once the administrative remedies have been exhausted.

 Plaintiff contends that the information he seeks is of an emergency nature and that it would be "futile" for him to exhaust his administrative remedies. Complaint at 2. However, he has offered no explanation as why it would be futile to request the information from the agencies, or why he believes that filing a court suit would be faster than requesting information directly from the agencies that possess it. While the Court understands the importance of this information to the ...


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