The opinion of the court was delivered by: John D. Bates United States District Judge
Petitioner initially filed this petition for writ of mandamus in the Superior Court of the District of Columbia. Respondent filed a Notice of Removal on October 31, 2006. This matter is before the Court on the United States of America's motion to dismiss or, in the alternative, for summary judgment. For the reasons stated herein, the summary judgment motion will be granted and the petition will be denied.
Petitioner is a District of Columbia prisoner who currently is serving his sentence in the custody of the Federal Bureau of Prisons ("BOP") at the United States Penitentiary in Terre Haute, Indiana ("USP Terre Haute"). See Petition for Writ of Mandamus ("Pet.") at 1. He has a diagnosis of Chronic Hepatitis C (genotype 1) ("HCV"). Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or in the Alternative for Summary Judgment ("Resp't Mot."), Declaration of Thomas A. Webster ("Webster Decl.") ¶ 2; Pet. at 2.*fn1 Generally, petitioner alleges he has a "federally protected right to health care," and that BOP officials intentionally have deprived him of adequate treatment for his condition. Pet. at 3-4. According to plaintiff, defendant should prescribe medication, id. at 5, and he should undergo a biopsy of the liver. See Civil Statement [Dkt. #12] at 1; Petitioner's Memorandum in Opposition to Defendants' Motion to Dismiss ("Pet'r Opp'n") ¶¶ 1-2, 5, 8, 10.
Petitioner brings this action against the United States of America on the ground that BOP's acts, or failures to act, violate rights protected under the Eighth Amendment to the United States Constitution. See Pet. at 3-4. He demands an Order directing respondent to provide him "with the necessary [H]epatitis [C] medication and/or any other relief this Court deems just." Id. at 6.
The Court presumes without deciding that petitioner has exhausted all available administrative remedies, that service of process on respondent was proper, and that venue in this district is proper.
A. Petitioner Is Not Entitled to Mandamus Relief
A district court may grant mandamus relief to "compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. Mandamus relief is extraordinary, and is granted only when essential to the interests of justice. See Chatman-Bey v. Thornburgh, 864 F.2d 804, 806 n.2 (D.C. Cir. 1988); Starnes v. McGuire, 512 F.2d 918, 929 (D.C. Cir. 1974). It is proper only if "(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 plaintiff." Council of and for the Blind of Delaware County Valley v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en banc). It is plaintiff's burden to show that his "right to issuance of the writ is 'clear and indisputable.'" Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (citations omitted).
Petitioner arguably has a clear right to relief and respondent has a clear duty to act insofar as the government is obligated to "provide medical care for those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 103 (1976). However, petitioner does not establish that he is without an adequate remedy at law. For this reason, the Court concludes that petitioner fails to show that his right to a writ of mandamus is clear and indisputable, and, accordingly, the petition must be denied.
B. The Court Will Grant Summary Judgment for Respondent
1. Summary Judgment Standard
A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it affects the outcome of the action under controlling law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The Court neither makes credibility decisions nor weighs evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). If there are no genuine issues of material fact in dispute, a moving party is entitled to judgment as a matter of law if the opposing party "fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the ...