ALEXANDER WILLIAMS, Jr., District Judge.
Pending are Defendants' Motions to Dismiss or for Summary Judgment. ECF No. 24 and 30. Plaintiff opposes the motions. ECF No. 29 and 37. The Court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2011).
Plaintiff Kevin Fuller ("Fuller") alleges that on December 25, 2011, another inmate incarcerated at North Branch Correctional Institution (NBCI), Donald Thomas, bit him twice during the 11 to 7 shift. He states he warned most of the Defendants listed in the Complaint that if they did not separate Thomas and him, that Thomas would bite Fuller. ECF No. 1 at p. 3.
Fuller further alleges that on July 7, 2011, his cellmate, Curtis Ruffin, attacked him in the housing unit and the assault was captured on surveillance video. Fuller claims he told the tier officer, Teal, that Ruffin told Fuller that if he was not moved out of the cell, Ruffin would kill Fuller. Fuller requested to be moved out of the cell immediately, but after Teal had spoken to her supervisor, she told Fuller that the supervisor and Officer Dom replied that Fuller should do what he has to do. ECF No. 1 at p. 9. Fuller reported the exchange with Teal to Officer Clittes who called Sergeant Graham about the matter. Fuller was asked to write a statement regarding the incident by Officer Dom and another officer. Fuller claims he wrote the statement explaining that Ruffin was a gang member who threatened to assault him and Ruffin also threatened that other gang members would attack him. Fuller again requested to be removed from the cell or to have Ruffin moved. Id. at p. 9. Fuller claims after he wrote the statement he was told to go to lunch and, upon his arrival in the dining hall, he saw Ruffin there. Id. at p. 10. Fuller alleges he spoke with Lt. Wilt on his way back from the dining hall to the housing unit about the problem with Ruffin. He claims Wilt told him he would move Fuller on Saturday; the conversation took place on a Thursday. Id.
After coming back to the housing unit, Fuller claims Teal told him "do not miss your door." Id. When Fuller tried to lock into the cell, he was attacked by Ruffin. Fuller states he tried to defend himself, but turned to run away because he feared Ruffin had a knife. A signal 10-10 was called, indicating two inmates were fighting, and when officers arrived, Fuller was gassed and pepper sprayed. Fuller claims Officer Anderson said, "Nigger what are you doing fighting." Fuller claims that Ruffin was not maced during the incident and was found not guilty of disciplinary infraction charges. Id. at pp. 10-11.
Fuller states he was handcuffed behind his back and not permitted to wash the mace off of his face for over one hour following the incident. Fuller pled not guilty at his disciplinary hearing, but was found guilty of fighting and given 365 days of disciplinary segregation. Id. at p. 11.
During Fuller's disciplinary segregation confinement, he was put into a cell with an inmate named Donald Thomas-Bey, who Fuller describes as a psychopath. Fuller claims that Thomas was on disciplinary segregation because he had just stabbed his cellmate. He claims after a few days of listening to Thomas, Fuller felt threatened. Thomas told Fuller that he used to shoot up heroin; that he tested positive for Hepatitis C; and that he wanted to bite someone in order to give them Hepatitis C. Fuller alleges that Thomas then stated he was going to bite Fuller. Fuller wrote a request slip addressed to Sgt. McAlpine, Lt. Harbaugh, and Sgt. Leydig, requesting that Thomas be moved from the cell. In addition, Fuller told Officer Lambert what Thomas said he would do to him if he was not moved from the cell.
On December 22, 2011, Officer Durst was doing escorts of inmates who were scheduled for a Behavioral Management Program (BMP) review. When Fuller went for his review, he was in the hallway sitting in a chair and told Lambert what Thomas was threatening to do Fuller, but Lambert ignored Fuller. ECF No. 1 at p. 12. Durst escorted Fuller into the room for the BMP review. Fuller notes that he is black and that the only other black person in the room was a psychologist, Dr. Banks. Fuller states that V. Warnick, a female, did most of the talking at the review meeting. Fuller claims he will never forget the day because he begged the entire BMP committee to protect him from Thomas. He told the committee that Thomas was on death row at one time for a savage murder and rape of two people; that Thomas had Hepatitis C and was threatening to bite Fuller to infect him with the disease. Fuller claims the committee ignored him and simply noted that Fuller wanted a single cell. Id. at p. 13.
Three days later, on December 25, 2011, Thomas fulfilled his threat and bit Fuller twice. Id. at p. 14. Fuller was taken to the medical unit for treatment and was seen by Dianne Harvey, R.N., Fuller was prescribed an antibiotic, Amoxicillin, by Dr. Ottey, and was informed by Harvey that he would be tested for Hepatitis C and HIV at a later date. Fuller alleges he has scars from the bites inflicted by Thomas. Id. at p. 14. Fuller alleges that following the assault by Thomas he was removed from the BMP without cause. He states his removal was retaliatory because he filed an administrative remedy procedure complaint (ARP) regarding the BMP committee's lack of response when told of the threat presented by Thomas. Id. at pp. 14 and 15.
In his first amended Complaint, Fuller claims that two BMP committee members, Householder and Banks, testified at an Inmate Grievance Office (IGO) hearing regarding his claim that they failed to take steps to protect him from Thomas. He claims both Householder and Banks lied at the hearing, stating they did not recall him warning the committee that Thomas had threatened him, but that Fuller had requested a single cell. He asserts that Banks told him in a private meeting that he did remember Fuller saying Thomas had threatened him, but changed his account at the hearing. Fuller states he was angered by Banks' dishonesty at the hearing and left the hearing. He further claims that staff refused to process his administrative remedy requests following his complaints regarding their failure to remove him from the cell with Thomas, where he remained until February 23, 2012. ECF No. 4.
Standard of Review
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, 127 S.Ct. 1955, 1968-69 (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 1969. 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, ...