FINDINGS AND RECOMMENDATIONS
Plaintiff is a former state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On December 10, 2009, defendant Lipon moved to dismiss this action, arguing that plaintiff had failed to exhaust available administrative remedies prior to filing this suit and that plaintiff's complaint fails to state a cognizable claim for relief. Plaintiff has filed an opposition to the motion, and defendant has filed a reply.
Plaintiff is proceeding on his original complaint against defendants Ziga, Lipon, and Geringson.*fn1 Therein, he alleges that he has an extensive history of self-injurious behavior and has serious mental health needs. He further alleges that he was referred to a higher level of care for close observation and intense therapy but while awaiting his custody clearance he became extremely agitated and presented a "behavioral problem." According to plaintiff, on February 19, 2008, at his Interdisciplinary Treatment Team meeting, defendant Geringson asked plaintiff to take a higher dose of his Geodon medication and informed plaintiff that if he refused she would seek a court order requiring him to accept the higher dose, which in turn would delay his referral to a higher level of care. Defendants Ziga and Lipon were also present at the meeting as part of plaintiff's "treatment team." Plaintiff refused to take the higher dose of medication and explained that the medication made him feel disgusting and filthy. Plaintiff also expressed his desire to let the courts decide the matter. (Compl. at 5, Attach. at 2 & Ex. 3.)
The following day, plaintiff alleges that defendant Geringson told him not to worry about the medication increase and that she would discharge him to wherever he wanted to go, which led plaintiff to believe that he would eventually be transferred to a higher level of care. However, on or about February 21, 2009, plaintiff was instead transferred to the administrative segregation enhanced outpatient program unit. In plaintiff's view, defendants Ziga, Lipon, and Geringson agreed to discharge him to this lower level of care knowing the dangers it would pose him. Plaintiff informed Dr. Gross, his psychologist, of his new housing unit, and she quickly referred plaintiff back to a higher level of care because she believed the enhanced outpatient program did not provide plaintiff with the level of care that he needed. However, despite Dr. Gross' efforts, plaintiff obtained an instrument and cut himself. He received treatment and approximately three sutures. Plaintiff was then placed in a crisis unit cell with a razor blade in plain sight on the floor. Plaintiff used the razor blade to inflict additional lacerations on himself. He was then treated again and transferred to the acute care unit. (Compl. Attach. at 2-2b.)
Plaintiff claims that the defendants have been deliberately indifferent to his serious mental health needs in violation of the Eighth Amendment. In terms of relief, plaintiff requests monetary damages. (Compl. at 5, Attach. at 2a.)
DEFENDANT'S MOTION TO DISMISS
Counsel for defendant Lipon argues that plaintiff failed to exhaust his available administrative remedies prior to filing this suit. Specifically, counsel argues that plaintiff filed an inmate appeal regarding the decision to transfer him to a lower level of care, but he did not mention defendant Lipon by name or in connection with any of the allegations of the appeal. In this regard, counsel contends that plaintiff failed to provide enough information in his appeal to allow prison officials to take appropriate responsive measures. (Def.'s Mot. to Dismiss at 4-6.)
Counsel for defendant Lipon also argues that the court should dismiss this action because plaintiff's complaint fails to state a cognizable claim for relief. Specifically, counsel argues that plaintiff merely alleges that defendant Lipon was present at a meeting where defendant Geringson recommended an increase in plaintiff's medication. In this regard, counsel contends that plaintiff has failed to allege any facts showing that defendant Lipon disregarded an excessive risk to plaintiff's health, failed to properly respond to plaintiff's medical needs, or was the proximate cause of plaintiff's alleged injuries. (Def.'s Mot. to Dismiss at 6-10.)
II. Plaintiff's Opposition
In opposition to the pending motion to dismiss, plaintiff argues that he exhausted his administrative remedies when he filed an inmate appeal regarding the defendants' decision to discharge him to a lower level of care and pursued that appeal through the highest level of review. He contends that he does not need to identify all of the individuals responsible for the decision in his grievance, just the nature of the wrong for which he sought redress. Plaintiff also argues that he has stated a cognizable claim against defendant Lipon. Plaintiff maintains that defendant Lipon acted with deliberate indifference to his serious mental health needs when Lipon agreed to allow plaintiff to be discharged to a lower level of care knowing plaintiff's history of cutting himself. In this regard, plaintiff contends that defendant Lipon was a direct participant in denying plaintiff necessary mental health care. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 1-3.)
In reply, counsel for defendant Lipon argues that plaintiff's late-filed opposition should be deemed a waiver of opposition to the motion. In addition, counsel reiterates that plaintiff failed to exhaust his administrative remedies because he did not allege in his inmate appeal that defendant Lipon was involved in the decision to transfer him to a lower level of care. Counsel also reiterates that plaintiff's complaint fails to state a cognizable claim because he only alleges that the defendant Lipon was present at a meeting where defendant Geringson recommended an increase in plaintiff's medication. In this regard, counsel ...