United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, Magistrate Judge.
Petitioner Muhammed Tillisy, proceeding pro se and in forma pauperis, submitted a petition for writ of mandamus pursuant to 28 U.S.C. § 1361. Dkt. 7. Mr. Tillisy also seeks the appointment of counsel. Dkt. 8.
Mr. Tillisy is currently held at the Federal Detention Center (FDC) at Sea-Tac. Mr. Tillisy seeks an order compelling the U.S. Marshal and the Federal Bureau of Prisons (BOP) to place him in a "higher care level" institution because he is allegedly not receiving the medical care he requires at the FDC. Id. Because it appeared that his petition is subject to dismissal because it seeks relief beyond that permitted by a writ of mandamus and Mr. Tillisy has failed to exhaust administrative remedies, the Court granted leave to Mr. Tillisy to explain why his petition should not be dismissed and file an amended petition that cures, if possible, the deficiencies noted. Dkt. 9. Mr. Tillisy has failed to do so. The Court recommends that this action be dismissed without prejudice and that Mr. Tillisy's motion for counsel (Dkt. 8) be denied.
The federal mandamus statute provides that "[t]he 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 an agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. Mandamus is an extraordinary remedy. Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir.1994). A writ of mandamus is appropriately used only when (1) the petitioner's claim is "clear and certain"; (2) the respondent official's duty to act is ministerial and (3) no other adequate remedy is available. Id. ( citing Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir.1986)).
A. Scope of Relief Requested Exceeds Mandamus Jurisdiction
Mr. Tillisy has not presented a claim that is sufficiently clear and certain. Mr. Tillisy's mandamus request is based on the alleged failure of unnamed FDC medical staff to provide him with the Oxycode pain medication prescribed for him by hospital staff after his brain surgery in July 2013. Mr. Tillisy further alleges that FDC does not have a 24-hour medical staff who can facilitate a life-threatening condition such as his and because of his condition, he should be placed at a facility that provides a higher level of care. Dkt. 1, pp. 2-3. According to Mr. Tillisy, only the U.S. Marshal Service can direct his transfer to another facility.
While medical staff at the FDC have a ministerial duty to provide Mr. Tillisy with basic medical care, Mr. Tillisy's complaint reflects only that he disagrees with the care that he has received at FDC. There is no medical evidence that the care he has received has been inadequate. Moreover, decisions to refer Mr. Tillisy to a specialist, provide medication, or transfer him to a different facility based on his medical needs are all examples of the discretion prison medical staff have in determining treatment. Thus, Mr. Tillisy's claim is not "clear and certain." In addition, he has remedies other than mandamus available to him.
B. Administrative Remedies
Mr. Tillisy acknowledges that a grievance process exists at the FDC and that his grievance was denied at the local and regional levels. He also acknowledges that his appeal remains pending at the Central Office. He claims that the Central Office has violated BOP rules to provide a response within sixty days and because his appeal has been pending for six months, he contends that the BOP is preventing him from exhausting.
Petitions for writ of mandamus that arise in the context of civil litigation must comply with the Prison Litigation Reform Act ("PLRA"). See Martin v. United States, 96 F.3d 853, 854 (7th Cir.1996). The PLRA requires exhaustion of available administrative remedies for any suit challenging prison conditions. 42 U.S.C. § 1997e(a). Section 1997e(a) requires complete exhaustion through any available process and those remedies need not meet federal standards, nor must they be plain, speedy, and effective. See Porter v. Nussle, 534 U.S. 516, 524 (2002). If administrative remedies have not been exhausted at the time an action is brought, it must be dismissed without prejudice. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam).
Based on the complaint alone, it appears that Mr. Tillisy has not exhausted his administrative remedies because the appeal remains pending. Mr. Tillisy's allegation that BOP is "preventing" him from exhausting is not supported by further allegation or evidence. Mr. Tillisy was directed to show why his complaint should not be dismissed for failure to exhaust but he has failed to do so.
C. Injunctive Relief
To the extent Mr. Tillisy's request to be transferred to a different facility with "a higher level of care" can be construed as a motion for injunctive relief, such relief is not warranted because, as explained above, Mr. Tillisy has not exhausted administrative remedies as to his claims. In addition, to be entitled to preliminary injunctive relief, a party must demonstrate "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public ...