RICHARD D. BENNETT, District Judge.
Plaintiff Nicholas Warner Jones ("Jones") filed the above-captioned Complaint pursuant to 42 U.S.C. §1983. Defendants J. Michael Stouffer, Bobby P. Shearin, J. Phillip Morgan, and MDDOC HDQRS, by counsel, have filed a Motion to Dismiss, or in the Alternative for Summary Judgment. ECF No. 31. Plaintiff has responded. ECF No. 33, 37, & 39. After review of the pleadings, and applicable law, the Court determines that a hearing is unwarranted. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, the Motion to Dismiss, construed as a Motion for Summary Judgment, will be GRANTED.
Jones, an inmate currently confined at the Jessup Correctional Institution ("JCI"), alleges that on November 21, 2010, while housed at North Branch Correctional Institution ("NBCI"), he was attacked by his cell mate Martin Morgan. Plaintiff states that the attack occurred within five feet of Maryland Division of Corrections security officers Fazenbaker, Michaels, and Morgan. Jones claims that while being transported to the infirmary after the attack his fingernail clipper, toothbrush and shower shoes were stolen. Plaintiff also alleges that on that same date while in the infirmary an unnamed security officer "tried exploitatively, but abortively, to push himself into my rectum which I saw when my balance collapsed during said officer's video security camera recorded attempted pre-textual body-cavity search of [Plaintiff] at the common area Housing Unit #1-B-tier dayroom." ECF No. 1.
Jones further claims that from November 27 through November 29, 2010, correctional officers denied him prescribed medication, soap, hygiene items, a shower, a bed, and clean clothes. Id.
On May 29, 2011, Jones states he was sprayed with a red chemical gas by Officer Browning. Jones states that he attempted to "disable inmate Alex Smith's receipt of Officer Browning, C.O. II's chemical-gas canister" after Jones was stabbed while he slept. Jones states that after he left the cell Browning stated to him, "I should shoot you again." Id. Thereafter, Jones states that Lt. Oradorff "ordered" correction staff to torture him from May 29, 2011 at approximately 11:00 p.m. until May 30, 2011, at approximately 4:00 a.m. by denying him showers to wash the chemical from his eyes and body, by denying him ice, bacitracin or qualified medical diagnosis or treatment and by locking him "in the cage" of the Housing Unit #1 B-Tier dayroom with the fan off. Id.
By way of a supplemental complaint, Jones alleges that on December 1, 2011, he was released three days early from disciplinary segregation while housed at the Western Correctional Institution ("WCI"). Jones claims that while walking to breakfast he was attacked by an unknown inmate. ECF No. 19.
Jones has not named any of correctional officers as Defendants. Rather, Jones has brought his complaint solely against supervisory officials claiming that each of the named supervisory Defendants had a duty to provide humane conditions of confinement, free of deliberate indifference to substantial risks of danger to his safety. He does not state any specific factual allegations against the named Defendants or indicate how they were involved in the conduct alleged. ECF Nos. 1 & 19.
Defendants provide the following version of events. On November 21, 2010, NBCI Officers Albert Fazenbaker and Daniel Michael were conducting a formal count of Jones's housing unit when Jones told them he needed to be seen by medical staff as he had fallen from his bunk. The officers did not notice any injuries but advised Jones that they would contact medical on his behalf. ECF No. 31, Exs, A, B. C. The nurse was notified and she indicated she would evaluate Jones on her next visit to the tier. Id., Ex. A. Due to the increased number of cell fights Lt. Durst instructed Sgt. Gilpin to check on Jones. Id., Ex. A. Gilpin and Fazenbaker retuned to Jones cell and observed Plaintiff had a severely bruised and swollen face. Id. Durst was told of Jones's injuries. Jones was escorted to the infirmary where a nurse assessed and treated his injuries. The nurse consulted with a physician who ordered Jones admitted to the infirmary at WCI. Id., Ex. A, p. 21, 25, 28, 28, 38-40 and Ex. D.
On November 27, 2010, Jones refused to comply with Correctional Officer McKenzie's repeated orders that he return to his cell. Id., Ex. E. As a result of his refusal Jones was placed in a contingency cell and later that day served with Notice of Inmate Rule Violation charging him refusing a housing assignment. Jones was found guilty of the charge on December 2, 2010. Id.
On May 28, 2011, Correctional Officer Browning was conducting an informal count when she observed Jones and his cellmate, Alex Smith, engaged in an altercation. Browning ordered the inmates to stop fighting and lay on the floor. Both inmates complied while other officers arrived to assist Browning. Browning opened the security slot and secured Smith. Once Smith was restrained Jones attacked him by repeatedly punching him with a closed fist. Jones ignored several orders to cease and Browning applied a burst of pepper spray. Once Jones complied with orders to stop and be cuffed he was taken to the medical unit and evaluated and treated by a nurse. Medical records indicated he was provided a shower to wash off the pepper spray. Id., Exs F & D, p. 76-87. Jones was subsequently served with an inmate rule infraction and found guilty of the charges. Id., Ex. G. Internal investigation into the use of force concluded that the level of forced used was appropriate and in accordance with Department of Corrections policy. Id., Ex. F.
Standard of Review
A. Motion to Dismiss
The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (6) is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The dismissal for failure to state a claim upon which relief may be granted does not require defendant to establish "beyond doubt" that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-62 (2007). Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Id. at 562. The court need not, however, accept unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, ...