FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is a motion to dismiss brought on behalf of defendants Anthony, Salenger, and Sloss-Peck.*fn1 The moving defendants contend that this action must be dismissed due to plaintiff's failure to exhaust his administrative remedies prior to bringing suit against them.
Plaintiff alleges that in between January 26, 2004 and February 2, 2004, he was confined at the Correctional Treatment Center at High Desert State Prison, and that defendant Dr. Salenger and former defendant Dr. Fleischman prescribed Prozac and Risperdal to treat his mental condition. (Compl.*fn2 at 4.) Before being discharged from the Treatment Center on February 2, 2004, plaintiff allegedly informed defendant Dr. Salenger that he was still suicidal and hearing voices. (Id.) Plaintiff alleges that he was nonetheless discharged and given his personal property along with two bottles of Prozac and Risperdal. (Id. at 5.) Plaintiff contends that it was improper to provide him with that amount of these controlled substances in this fashion. (Id.) Defendant Sloss-Peck was allegedly present when plaintiff received his property and plaintiff claims that both defendants Sloss-Peck and Anthony were aware that he was given the bottles of medications upon his discharge. (Id.) Plaintiff alleges that he later overdosed on the medications. (Id.)
Plaintiff claims that defendants Anthony and Sloss-Peck failed to intervene to prevent him from overdoing on the medications that were improperly provided to him in this fashion. (Id. at 8.) Plaintiff also alleges that defendant Dr. Salenger was deliberately indifferent to plaintiff's risk for suicide when he had plaintiff released, rather than placing him on suicide observation. (Id. at 9.) Although plaintiff claims that his rights under the Fourteenth Amendment were violated, the court has determined that a claim alleging failure to prevent an attempted suicide is based on plaintiff's Eighth Amendment right to receive adequate medical care. See Findings and Recommendations, filed Feb. 19, 2008, at 6; Order, filed Mar. 7, 2008.
Plaintiff also contends that on February 12, 2004, he sent a grievance form to Appeals Coordinator Jackson in which he complained about the people involved in giving him the psychiatric medications in this fashion. (Id. at 5.) Plaintiff's grievance described the matter about which he was complaining as follows:
On 2-?-04, appealant [sic] was provided by (2) escorting officers that resulted to overdose controlled drugs. [sic] Appealant [sic] suggests that these officers took advantage of appealants [sic] mental status & tried with deliberate intent to murder appealant [sic] for these officers had no such license/not trained to provide controlled drugs. (Id. at 15.) In the part of the grievance form asking what action he was requesting, plaintiff responded:
(1) to have... (illegible) investigation by warden and/or Internal Affairs office (2) To be compensated and have criminal charges filed. Not be subjected to any forms of harassment.
When plaintiff did not receive a reply to his grievance, he sent appeals coordinator Jackson a letter dated March 1, 2004, inquiring about the status of his grievance. (Id. at 5.) Plaintiff also made other attempts to have his grievance processed. (Id. at 5-6.)
I. Defendants' Motion to Dismiss
Defendants argue that plaintiff failed to exhaust administrative remedies because there is no record that he filed an appeal in February 2004 concerning his discharge from the Treatment Center. (Mot. to Dismiss (MTD) at 3.) In this regard defendants have provided a declaration by M. Dangler, the current Appeals Coordinator at High Desert State Prison. (Id., Ex. A.) Dangler represents that his duties include maintaining records of all logged appeals filed by prison inmates at High Desert State Prison and also a "database of all appeals that have been screened out for failure to comply with proper procedures." (Id., Ex. A at 1.) He declares as follows:
At the request of the Office of the Attorney General, I have conducted a thorough search of our records at HDSP to determine if inmate Treandous Cotton (T-97805) had filed an inmate appeal concerning his release from the Correctional Treatment Center on February 2, 2004, alleging that he should not have been discharged, or that the escorting correctional officers gave him anti-psychotic medications.
Our records reflect that inmate Treandous Cotton (T-97805) at HDSP, filed no administrative appeals in February 2004. The records also reflect that he has never filed an administrative appeal related to his discharge from the Correctional Treatment Center on February 2, 2004.
Defendants argue that there is no evidence that plaintiff exhausted his administrative remedies prior to filing suit as required. (MTD at 6.) Defendants argue that the appeal form plaintiff attached to his complaint does not indicate that it was submitted to prison officials, and that if it had been submitted, it would have been logged by the Appeal's Office. (Id.) In addition, if the court finds that the appeal form attached to the complaint constitutes exhaustion of administrative remedies, defendants argue that exhaustion should extend only to claims brought in this action against defendant Sloss-Peck. (Id.) Defendants argue that the appeal form attached to the complaint did not provide notice to defendant Dr. Salenger, who plaintiff now alleges was deliberately indifferent to plaintiff's need for treatment, that plaintiff was complaining about any action he took or ...