United States District Court, D. Maryland
BILLY G. ASEMANI, #339-096 Plaintiff,
WEXFORD HEALTH SOURCES, INC., Defendant
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
October 19, 2016, Billy G. Asemani, an inmate at Eastern
Correctional Institution, filed this Complaint pursuant to 42
U.S.C. §1983 against Wexford Health Sources
(“Wexford), Inc. He faults Wexford for failing to
authorize a medical shower pass for him. As relief, he asks
this Court to compel the issuance of a pass. Asemani's
Motion for Leave to Proceed in Forma Pauperis (ECF 2) will be
granted. For reasons to follow, the Complaint will be
DISMISSED without prejudice.
who is in protective custody status, claims that on August
18, 2016, he asked correctional staff for a medical shower
schedule because he uses crutches, braces, and straps.
Asemani also states he needs additional time to shower due to
incontinence and his need for additional hygiene, and is
subjected to “verbal assault” by other inmates
for taking too much time to shower and having his medical
appliances in the way during regular shower times. (ECF 1).
He claims to skip showers for two or three days sometimes
because he fears he might sometime be involved in an
altercation. Asemani blames skipping showers as the cause of
his “diaper rash.” (ECF 1, at 9). Notably,
Asemani indicates in supplemental materials that his shower
concerns do not ordinarily arise on Mondays, Wednesdays, or
Fridays because the morning shower schedule at those times
does not attracts as many inmates. (ECF 1-4).
states Sgt. Wilson told him that he had no objection to his
request for a medical shower pass, but to avoid the
appearance of preferential treatment, i.e. receiving
a private shower, Asemani needs authorization from the
medical department. (ECF 1 at 5; 8 ECF 1-5).
August 20, 2016, Asemani submitted a request for a medical
shower pass to the medical department. (ECF 1-5). On
September 14, 2016, Asemani met with unnamed medical staff.
Asemani states that upon learning corrections staff had
“already approved” his request for a medical
shower pass, Defendant's “representative”
declined to issue the pass “by being under the
misapprehension that decisions of that kind are reserved for
custody staff, and that, if custody staff has already
authorized Asemani's request, then they need not get
involved.” (ECF 1 at 6). Asemani claims that because of
“[D]efendant's representatives' ignorance of
how medically related decisions are made” he has been
placed in a situation where he is unable to obtain the
medical shower pass. Id. He claims Defendant is
negligent in assuming corrections staff make medical shower
decisions. Id. at 7.
does not identify the medical providers who declined to issue
the medical pass as described above. He claims
Defendant's actions or omissions have violated his right
to be free from verbal and physical abuse and his right to a
“sanitary and hygienic” existence can be
accomplished only if he showers daily. Asemani provides
no evidence that he has attempted to resolve this matter
through available administrative avenues.
forma pauperis statute permits an indigent litigant to
commence an action in federal court without prepaying the
filing fee. To protect against possible abuses of this
privilege, the statute requires a court to dismiss any claim
that fails to state a claim on which relief may be granted.
28 U.S.C. § 1915(e)(2)(B)(ii).
evaluating a pro se complaint, a plaintiff's allegations
are assumed to be true. Id. at 93 (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
Further, the Court is also mindful of its obligation to
liberally construe the pleadings of pro se litigants such as
Asemani. See, e.g. Erickson v. Pardus, 551 U.S. 89,
94 (2007). Nonetheless, liberal construction does not mean
that a court can ignore a clear failure in the pleading to
allege facts which set forth a claim cognizable in a federal
district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990); see also
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985) (stating a district court may not “conjure
up questions never squarely presented”).
42 U.S.C. § 1983, individuals may sue in federal court a
person who violates their federally protected rights while
acting under the color of law. As Asemani, a frequent
self-represented litigator in this Court is undoubted aware,
doctrine of respondeat superior does not apply with respect
to § 1983 claims. See Monell v. New York Dep't
of Social Services, 436 U.S. 658, 691 (1978);
Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir.
2004) (no respondeat superior liability under § 1983).
These standards also apply to private companies that employ
individuals acting under color of state law. Austin v.
Paramount Parks, Inc., 195 F.3d 715, 727-28 (4th Cir.
1999). Corporations are liable under §1983
“only when an official policy or custom of the
corporation causes the alleged deprivation of federal
rights.” Id. at 728 (emphasis in original).
proceed under 42 U.S.C. § 1983, a plaintiff must
establish violation of a Constitutional right or federal law.
See Baker v. McCollan, 443 U.S. 137 (1979). A
plaintiff must specify what constitutional provision or
federal laws were allegedly violated, and identify the actors
who allegedly violated these provisions or laws. Asemani
fails to identify a cognizable cause of action under 42
extent Asemani may intend to fault Defendant for providing
inadequate medical care in violation of the Eighth Amendment,
his claim as articulated does not suggest that medical
personnel exhibited requisite deliberate indifference to his
serious medical needs. See Estelle v. Gamble, 429
U.S. 97, 105-106 (1976) (stating “deliberate
indifference to serious medical needs of prisoners”
constitutes the wanton infliction of pain”). Rather,
Asemani claims Defendant is negligent for ignorance in
understanding the process for authorizing a shower pass.
Neither an “inadvertent failure to provide adequate
medical care” nor “negligen[ce] in diagnosing or
treating a medical condition” amounts to deliberate
indifference. Id. Here, it is not apparent that
self-diagnosed diaper rash qualifies as a serious medical
need. Further, Asemani acknowledges that he is able to shower
at least three times weekly without concern. Contrary to
Asemani's claims, he does not have a constitutional right
to shower daily. Asemani does not particularize the nature of
his fellow inmates' ...