Contino v. Hillsborough DOC CV-09-65-PB 9/21/11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Rico Contino

v. Case No. 09-cv-65-PB Opinion No.

Hillsborough County Dept. Of Corrections, et a l .

MEMORANDUM AND ORDER

Rico Contino brings this action pursuant to

against Hillsborough County Department of Corrections

("HCDOC") Superintendent James M. O'Mara, Jr., HCDOC Assistant

Superintendent David Dionne, and Dr. Charles Ward to recover for

injuries sustained during his incarceration. Contino alleges

that defendants failed to provide him with constitutionally

adequate treatment for a variety of health issues while he was

incarcerated at the Hillsborough County House of Corrections

("HCHC"). All defendants have moved for summary judgment. For

reasons discussed below, I grant defendants' motions.

I. PROCEDURAL HISTORY

A. The Complaint1

Contino maintains he was incarcerated at the HCHC eight

1 Except where otherwise noted, I rely on the Magistrate Judge's Report and Recommendation (Doc. No. 8) in describing Contino's complaint. times between April 30, 2007 and February 27, 2009, spending in

excess of 300 days in jail. During this time, Contino was

incarcerated as a pretrial detainee, except between January 9,

2008 and January 24, 2008, when he was serving a sentence.

Contino alleges that while he was incarcerated, he received

inadequate psychiatric, hypertension, and dental treatment in

violation of his federal constitutional rights. He also asserts

claims alleging denial of access to the courts and retaliation.

In addition to O'Mara, Dionne, and Ward, Contino named as

defendants Health Services Administrator Denise Ryan, Mental

Health Counselors Dianne Barber and Christine Mellnick, and

Corrections Officers Gutierrez and Adams. The Magistrate Judge

recommended that the claims alleging inadequate psychiatric,

hypertension, and dental treatment proceed against defendants

O'Mara, Dionne, and Ward, and that all other claims and

defendants be dismissed (Doc. No. 8). I approved the Magistrate

Judge's recommendations (Doc. No. 14).

With respect to his claim that he received inadequate

psychiatric care, Contino alleges that upon arriving at the HCHC

in April 2007, he advised the medical staff about his mental

health disorders and the medications he was prescribed. He

maintains that since 1995, he has been repeatedly and

continuously diagnosed with serious mental illness by four

different psychiatrists. His diagnoses include psychotic

- 2 - disorder, anti-social personality disorder, generalized anxiety

disorder with panic attacks, moderate to severe depression, and

bipolar disorder. Since 1995, he has been prescribed and has

taken psychotropic medications to treat these illnesses. In

2003, Contino was deemed to be disabled as a result of his

mental illness and has, since then, received social security

disability benefits.

Contino alleges that each time he was incarcerated at the

HCHC between April 2007 and February 2009, he either brought

with him a number of current prescription medications for mental

illness, including Seroquel, Buspar, and Zoloft, or requested

that the HCHC staff verify his prescriptions with a pharmacy.

Nonetheless, Contino did not receive the specific medications he

requested until his February 2009 incarceration, and even then

he did not receive Seroquel. HCHC records attached to the

complaint indicate that medical personnel at the HCHC were aware

of Contino's prior psychiatric diagnoses and treatment history.

Dr. Ward, who treated Contino during many of his periods of

incarceration, allegedly denied all of Contino's previously

prescribed psychotropic medications based on his personal views

of mental illness, rather than Contino's actual mental health

needs. According to Contino, Dr. Ward told him that "those

types of medications are like sedatives," that "they don't work

anyway," and that Contino "should stop living off the government

- 3 - and get a full-time job like normal people do." As a result of

allegedly inadequate psychiatric treatment, Contino asserts he

suffered greatly as the symptoms of his mental illness,

including frequent anxiety attacks, insomnia, extreme paranoia,

hallucinations and delusions, grew increasingly worse during his

incarceration.

Contino's second claim is that he was denied adequate

medical treatment because the HCHC personnel refused to provide

him with hypertension medication. Contino maintains that in

2005, he was diagnosed with high blood pressure and prescribed

Clonidine to treat the condition. Although Contino informed the

HCHC staff of his hypertension during a number of intake

bookings, he alleges that he did not receive any blood pressure

medication during most of the time he was incarcerated. The

HCHC medical staff finally prescribed Clonidine in February

2009, but discontinued the prescription later in the month

without explanation.

With respect to his third claim, Contino alleges he

received inadequate dental care during his incarceration.

Contino states that while he was at the HCHC in the summer and

fall of 2008, he made numerous requests for dental treatment for

daily tooth pain. He was given ibuprofen for pain and placed on

a waiting list to see the dentist. Despite repeated requests

for dental care in July and August 2008, he did not see the

- 4 - dentist until September 11, 2008. According to Contino, the

dentist diagnosed him with "moderate to advanced periodontic

disease," extracted a tooth with "gross decay" and necrosis, and

prescribed antibiotics. The dentist saw Contino for another

tooth extraction on October 17, 2008, after Contino made several

requests for additional dental work for a painful loose tooth.

Contino alleges that the two extracted teeth could have been

saved had he received earlier dental care.

B. Defendants' Motions for Summary Judgment

HCDOC defendants O'Mara and Dionne have moved for summary

judgment. With respect to Contino's hypertension and dental

care claims, they assert that he failed to exhaust the jail's

administrative remedies, as required by the Prison Litigation

Reform Act ("PLRA"). Defs. O'Mara & Dionne's Mot. for Summ. J.,

Doc. No. 47-1, at 5. As for his psychiatric treatment claim,

they contend Contino failed to produce any competent evidence to

raise a genuine issue of material fact to controvert defendants'

evidence that he received substantial mental health treatment at

the jail. Id. at 10-11. Dr. Ward moved for summary judgment on

the same grounds (Doc. No. 46-1) and joined in the motion filed

by his co-defendants (Doc. No. 49) .

Defendants have submitted admissible evidence establishing

that administrative remedies exist at the HCHC, and that there

is no record that Contino attempted to exhaust these remedies

- 5 - with respect to his hypertension and dental treatment claims.

The HCDOC Inmate Handbook, given to each inmate upon arrival at

the HCHC, describes the facility's grievance procedures. Aff.

of David Dionne ("Dionne Aff."), Doc. No. 47-2, 5 7. The

administrative remedies available to Contino required that he

take three steps prior to commencing the instant action: (1)

attempt informal resolution, (2) file an inmate request form to

obtain an inmate grievance form, and (3) file the inmate

grievance form. Id. Each grievance form and the institutional

response are documented in the respective inmate file. Id.

7-8 .

Assistant Superintendent Dionne has asserted in a sworn

affidavit that he has reviewed Contino's inmate file, and that

Contino filed only one grievance regarding his health care

during the time relevant to this action. Id. 5 8. In the

grievance form, dated March 26, 2009, Contino complained that he

was denied two prescriptions for Seroquel, which a psychiatrist

had prescribed to him for psychosis before Contino was

incarcerated. Id. 5 9. Contino stated in the grievance form

that a nurse at the HCHC refused to prescribe him Seroquel

despite her acknowledgment that he arrived with current

prescriptions for the medication. Id. In response to the

grievance form, HCHC personnel noted that Contino was scheduled

to see a doctor to discuss his concerns and that no further

- 6 - action was required. Id. 10-11. According to Dionne,

Contino did not submit any grievance forms or written complaints

related to either the allegedly inadequate hypertension

treatment or dental care. Id. 5 16.

In his objection to defendants' motion for summary judgment

(Doc. No. 52), Contino does not claim that he exhausted the

administrative remedies available to him at the HCHC before he

filed this suit. Instead, he alleges in an unsworn statement

that on unspecified occasions he requested a grievance form and

either never received it or was released from detention before

he could file the grievance. See Pi.'s Mot. for Summ. J. & Mot.

to Object to Defs.' Mot. for Summ. J. ("Pl.'s Opp'n to Summ.

J."), Doc. No. 52, 5 S 2 . He further alleges that the HCHC had

an unwritten policy of "dragging out" genuine complaints to

prevent the filing of grievances. Id. In addition, Contino

asserts that the PLRA does not require exhaustion in his case

because he filed this action following his release. Id. 5 Z2.

With respect to Contino's psychiatric treatment claim,

defendants contend that, although Contino did not necessarily

receive the medications he wanted, he received substantial

psychiatric care, including mental health counseling and

psychotropic medications at certain periods of his

incarceration. On May 1, 2007, he was prescribed Tofranil, a

drug used to treat depression, and Risperidal, a mental health

- 7 - medication. Aff. of Denise Ryan ("Ryan Aff."), Doc. No. 47-4, 5

9. Both medications were discontinued approximately ten days

later. Id. During his incarceration in August 2007, he was

prescribed Zoloft from August 8, 2007 until August 29, 2007, and

again from July 8, 2008 until July 24, 2008. Id. 17, 43, 47,

50. From November 21, 2008 until his release on November 24,

2008, he was prescribed Celexa, Depakote, and Thorazine for

psychiatric treatment. Id. 5 81. When he was again

incarcerated on February 7, 2009, he was prescribed two of the

three psychotropic medications he requested, Buspar and Zoloft,

but again did not receive Seroquel. Id. 5 86. During times

such medications were discontinued, Contino continued to have

therapy sessions with mental health counselors at the jail. See

id. 55 21, 51, 53, 56-57, 61-62, 68-69, 71-72. Each time he

requested a mental health session, he either received counseling

shortly thereafter or was placed on a waiting list until an

appointment was available. See id.

Defendants also contend that the reason Contino's treatment

did not include provision of his previously prescribed

medications was based on the medical opinion of his health care

providers at the HCHC. Dr. Ward, Contino's main health provider

at the jail through November 28, 2008, was licensed to practice

medicine in New Hampshire until he retired in June 2010. Aff.

of Charles Ward ("Ward Aff."), Doc. No. 46-3, 55 3, 7-9. In a sworn affidavit. Dr. Ward states that it was his medical opinion

that Contino's major illness was his long-standing alcoholism

and that his depression and anxiety were caused by incarceration

and lack of access to alcohol. Id. 5 21. Dr. Ward doubted the

accuracy of Contino's various psychiatric diagnoses and believed

that a number of his medications were either unnecessary or

contraindicated. Id. 5 21. As a result, on various occasions

Dr. Ward discontinued Contino's psychotropic medications. Id.

9-10, 13, 15-16, 18. In Dr. Ward's medical judgment,

Contino's multiple outside providers did not have the

opportunity to provide adequate follow-up on the efficacy of

their various treatments. Id. In addition to his own

examinations. Dr. Ward relied in part on a report he reviewed on

December 18, 2007 made by HCHC mental health counselor, who

noted that Contino was "possibly manipulating to get meds," and

a note from Contino's hospitalization records he reviewed on

July 16, 2008, which stated that Contino was "playing games."

Id. 55 15, 18. Dr. Ward states that he attempted to treat what

he considered to be Contino's underlying problem, alcoholism,

and recommended that he attend Alcoholics Anonymous and avoid

sedatives. Id. 55 16, 21.

In responding to defendants' motion for summary judgment,

Contino does not controvert defendants' evidence that he

received substantial mental health treatment during his

- 9 - incarceration. Instead, he merely disagrees that the treatment

he received was adequate. See Pl.'s Opp'n to Summ. J., Doc. No.

52, A-Z. He alleges, without citing to admissible evidence,

that Dr. Ward and other HCHC medical staff were not qualified to

discontinue or change psychotropic medications that outside

psychologists and psychiatrists had prescribed to Contino. Id.

55 A-G. According to Contino, the failure to provide him with

the medications he requested exacerbated the symptoms of his

mental illness and caused him unnecessary suffering. Id. 55 A-

Z.

II. STANDARD OF REVIEW

A summary judgment motion should be granted when the record

reveals "no genuine dispute as to any material fact and that the

movant is entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(a). The evidence submitted in support of the motion

must be considered in the light most favorable to the nonmoving

party, drawing all reasonable inferences in its favor. See

Navarro v. Pfizer Corp.,

(1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986). The burden then shifts to

the nonmoving party to "produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

- 10 - verdict for it; if that party cannot produce such evidence, the

motion must be granted." Ayala-Gerena v. Bristol Myers-Squibb

C o .,

(1st Cir. 1996); see Celotex,

.

In reviewing a pro se motion, this Court is obliged to

construe the pleading liberally in favor of the pro se party.

See Ayala Serrano v. Lebron Gonzales,

(1st Cir.

1990) (citing Estelle v. Gamble,

(1976)). That

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir, of C.I.A., 843

F .2d 46, 49 (1st Cir. 1988).

Il l . ANALYSIS

A. Failure to Exhaust Administrative Remedies

Defendants contend that Contino failed to exhaust the HCDOC

three-step grievance procedure with respect to his claims that

he was denied hypertension medication and received inadequate

dental care.- In response, Contino makes unsupported assertions

that on certain unspecified occasions his requests for a

grievance form were ignored and that requests being processed

were discarded at times when he was released from jail.

- Defendants also argue in a footnote that the grievance form Contino submitted for psychiatric treatment failed to satisfy the PLRA, because it was filed after Contino commenced this action. Because I find that Contino's psychiatric treatment claim fails on the merits, I do not need to address this issue. - 11 - Further, he alleges, again without citing to competent record

evidence, that he was released from jail at the time he filed

this action and therefore is exempt from the PLRA exhaustion

requirement.

Under the PLRA, a prisoner asserting a claim under

must exhaust all available administrative remedies

before bringing an action in federal court. 42 U.S.C. §

1997e(a). The exhaustion requirement applies to all inmate

suits about prison life, even when, as here, the alleged

violations relate to medical matters. Porter v. Nussle,

(2002); Acosta v. US Marshals Serv.,

(1st Cir. 2006) . To properly satisfy the PLRA's exhaustion

requirement, "a prisoner must file complaints and appeals in the

place, and at the time, the prison's administrative rules

require." Acosta,

(internal citation omitted).

Because failure to exhaust PLRA remedies is an affirmative

defense, defendants bear the initial burden of showing that an

inmate failed to exhaust. See Casanova v. Dubois,

(1st Cir. 2002). A prisoner's failure to exhaust

available administrative remedies results in dismissal of the

case. Medina-Claudio v. Rodriguez-Mateo,

(1st

Cir. 2002).

Defendants have established that administrative remedies

were available to Contino during his incarceration. Dionne Aff.

- 12 - 5 7. Contino was required to take three steps prior to

commencing this suit: (1) attempt informal resolution, (2) file

an inmate request form, and (3) file an inmate grievance form.

Assistant Superintendent Dionne states in a sworn affidavit

that based on his review of Contino's inmate file, Contino never

filed a grievance form for either inadequate hypertension

treatment or dental care.

5 8.

Contino does not contest that he failed to exhaust the

administrative remedies available to him at the HCHC with

respect to these claims. Instead, he merely responds with

unsworn statements that during certain releases from the jail

his previous requests were discarded, that on certain

unspecified occasions his requests for a grievance form went

unheeded, and that he was not incarcerated at the time he

commenced this action. I am not persuaded by Contino's

arguments because he has not provided a sufficiently detailed

account of events, sworn statements, or other admissible

evidence to support his allegations and contravene defendants'

evidence to the contrary.

Assuming, without deciding, that exhaustion would not be

required had Contino filed suit at a time when he was not

incarcerated, evidence submitted by defendants shows that

Contino was incarcerated at the HCHC on February 27, 2009, the

date he commenced this action. In chronicling Contino's medical

- 13 - records at the HCHC, Denise Ryan, Health Services Administrator

at the jail, states that Contino was incarcerated on February 7,

2009 and remained there at least through June 9, 2009. See Ryan

Aff. 85-107. Specifically, HCHC records indicate that on

February 27, 2009, Contino attended mental health counseling at

the facility.

5 93. Other than his unsworn denial, Contino

has not submitted any evidence to support his claim that he was

not incarcerated at the HCHC when he filed suit. Accordingly, I

do not need to decide whether he needed to exhaust his

administrative remedies if he were no longer incarcerated.3

Contino also suggests in his pleadings that his mental

3 The fact that Contino was released and re-incarcerated a number of times does not impact the exhaustion requirement. The PLRA defines "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h). In light of the PLRA's plain and unambiguous language, the First Circuit has held that it is plaintiff's status as a "person incarcerated or detained" at the time he files suit that determines whether the exhaustion provision applies. Medina-Claudio v. Rodriguez- Mateo,

(1st Cir. 2002). At least one federal appeals court has found that if an inmate is released from custody and then re-incarcerated at the same facility at the time the inmate files suit, he is required to exhaust the available grievance procedures before bringing claims arising out of the prior incarceration. Berry v. Kerik,

(2d Cir. 2004). District courts in other jurisdictions have similarly held that an intervening release from custody does not excuse a failure to exhaust when plaintiff is imprisoned at the commencement of a lawsuit. See McCullough v. Yates, No. 1:10- cv-014 65 LJO JLT (PC),

, at *2 (E.D. Cal. Feb. 28, 2011); Smedley v. Reid, No. 08cvl602 BTM (BLM),

, at *3-4 (S.D. Cal. Jan. 27, 2010); Gibson v. Brooks,

(D. Conn. 2004) . - 14 - illness may have prevented him from following the grievance

procedure. He has failed, however, to produce any evidence to

support his claim. Moreover, records indicate that Contino

followed the grievance procedure when HCHC personnel denied him

Seroquel, a psychotropic medication he had requested. Dionne

Aff. 5 8. The fact that he did request and submit a grievance

form for one of his claims demonstrates that Contino knew about

the grievance procedures and was able to comply with them.

Because Contino failed to file a grievance form for either

the alleged denial of hypertension medication or inadequate

dental treatment, he has not exhausted his administrative

remedies. Therefore, I grant defendants' motion for summary

judgment with respect to those two claims.

B. Psychiatric Treatment Claim

Contino also claims that the withholding and changes to his

psychotropic medications at the HCHC amounts to a deliberate

indifference to his serious mental health needs in violation of

his federal constitutional rights. Defendants contend that he

received substantial mental health treatment at the HCHC and has

failed to present any evidence to raise a genuine issue of

material fact that the treatment he received was

constitutionally inadequate.

Because Contino was a pretrial detainee for most of the

periods of his incarceration, the Due Process Clause of the

- 15 - Fourteenth Amendment governs his claim. Ruiz-Rosa v. Rullan,

(1st Cir. 2007); Surprenant v. Rivas,

(1st Cir. 2005). "The Fourteenth Amendment provides at

least as much protection for pretrial detainees as the Eighth

Amendment provides for convicted inmates." Ruiz-Rosa,

(citing City of Revere v. Mass. Gen. Hosp.,

(1983)). Courts have applied the same standard to prisoner

medical claims brought under the Fourteenth and Eighth

Amendments. Id.; Burrell v. Hampshire County,

(1st Cir. 2002). That standard is whether the challenged

official action constituted "deliberate indifference" to the

prisoner's serious medical needs. Farmer v. Brennan,

(1994); Estelle,

; Ramos v. Patnaude,

(1st Cir. 2011) . The First Circuit Court of

Appeals has recognized that prisoners' mental health needs

warrant the same protection as their physical health needs

because "there is no underlying distinction between the right to

medical care for physical ills and its psychological or

psychiatric counterpart." Torraco v. Maloney,

(1st Cir. 1991) (internal quotation omitted).

Deliberate indifference has two components. The objective

component requires a showing of inadequate care for a

sufficiently serious medical need. Farmer,

;

Estelle,

. Adequate medical care is treatment by

- 16 - qualified medical personnel who provide services that are of a

quality acceptable when measured by prudent professional

standards in the community. See United States v. DeCologero,

(1st Cir. 1987). This does not mean that an

inmate is entitled to the care of his or her choice, but simply

that the care must meet minimal standards of adequacy. See

Feeney v. Corr. Med. Servs., Inc.,

(1st Cir.

2006).

The subjective component of deliberate indifference

requires a showing of "sufficiently culpable state of mind,"

namely that a responsible prison official was aware of a

substantial risk of serious harm to an inmate's health, or the

facts from which the medical need could be inferred, and still

failed to provide treatment. Farmer,

; Estelle,

; Ramos,

. As Justice Souter

explained in a recent First Circuit opinion, "[p]roof of

deliberate indifference requires a showing of greater

culpability than negligence but less than a purpose to do harm,

. . . and it may consist of showing a conscious failure to

provide medical services where they would be reasonably

appropriate." Coscia v. Town of Pembroke, No. 10-1714,

(1st Cir. Sept. 14, 2011) (internal citations

omitted).

- 17 - Courts hesitate to find that medical treatment was

constitutionally inadequate where, as here, "the dispute

concerns not the absence of help, but the choice of a certain

course of treatment." Torraco,

(citing Sires v.

Berman,

(1st Cir. 1987)). To constitute

deliberate indifference, the treatment provided must be "so

inadequate as to shock the conscience," Ramos,

(citing Sires,

) or "so dangerous (in respect to

health or safety) that a defendant's knowledge of a large risk

can be inferred," Torraco,

(internal citation

omitted). "[S ]ubstandard care, malpractice, negligence,

inadvertent failure to provide care, and disagreement as to the

appropriate course of treatment are all insufficient to prove a

constitutional violation." Ruiz-Rosa,

; see

Feeney,

.

Contino claims that HCHC treatment providers' decisions to

discontinue and alter his psychotropic medication regimen

constituted deliberate indifference to his serious mental health

needs. He has not provided any evidence, however, to

demonstrate that the treatment he received was constitutionally

inadequate, nor has he controverted defendants' evidence that he

received substantial mental health treatment. Instead, he

relies almost exclusively on the allegations contained in his

complaint. Such allegations, standing alone, fail to meet the

- 18 - burden of proof imposed on the nonmoving party to produce

evidence of a viable claim once the party seeking summary

judgment identifies the absence of any genuine issue of material

fact. Ruiz-Rosa,

; Torraco,

. As

a party opposing a properly supported motion for summary

judgment, Contino must present "competent evidence of record

that shows a genuine issue for trial." Ruiz-Rosa,

. He has failed to do so.

Contino offers no evidence that defendants' failure to

provide him with the psychotropic medications he requested

rendered the treatment he received "so inadequate as to shock

the conscience." See Feeney,

; Torraco,

; Sires,

. He was not entitled to the

medications of his choice, even if those medications had been

prescribed by outside providers. See Feeney,

;

Torraco,

; Sires,

. Further,

defendants proffer evidence demonstrating that, although Contino

did not always receive the medications he requested for his

mental illness, he was given substantial mental health

treatment. He received mental health counseling when requested,

as well as different psychotropic medications at various periods

of his incarceration.

The reason Contino's treatment providers at the HCHC

discontinued and changed his previously prescribed medications

- 19 - was not a result of their disregard of a known substantial risk

of serious harm to Contino's health. See Calderon-Ortiz v.

Laboy-Alvarado,

(1st Cir. 2002) (citing Farmer,

). Rather, the decision was based on Dr.

Ward's disagreement with the diagnoses and courses of treatment

that Contino received prior to his incarceration, a disagreement

that reflects "an exercise of professional judgment [that] may

present a colorable claim of negligence, but it falls short of

alleging a constitutional violation." Feeney,

(internal quotation omitted). In Dr. Ward's medical opinion,

Contino's underlying health problem was long-standing

alcoholism, not mental illness. Further, Dr. Ward concluded

that Contino's multiple outside providers did not have the

opportunity to evaluate the efficacy of their variety of

treatments. In absence of any evidence that Dr. Ward's

diagnosis and treatment failed to meet minimum standards of

adequacy, the fact that Contino disagrees with Dr. Ward's

opinion is insufficient evidence of inadequate medical

treatment. See

A mere dispute over his course of treatment

does not rise to the level of intentional or wanton indifference

to Contino's mental health needs that is required under the

Farmer standard. See Torraco,

; Sires,

.

I am not persuaded that a reasonable finder of fact could

- 20 - conclude that the psychiatric treatment Contino received at the

HCHC was "so inadequate as to shock the conscience." See

Feeney,

; Torraco,

; Sires,

. There is simply no evidence to permit a finding

that Dr. Ward's treatment, even if negligent or substandard,

violated Contino's constitutional rights. See Estelle,

; Ruiz-Rosa,

; Feeney,

.

Therefore, I grant defendants' motion for summary judgment with

respect to Contino's psychiatric claim.

IV. CONCLUSION

For the reasons stated above, defendants' motions for

summary judgment (Doc. Nos. 46 & 47) are granted. The clerk

shall enter judgment in accordance with this Memorandum and

Order and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

September 21, 2011

cc: Rico Contino, pro se John A. Curran, Esq. Elizabeth L. Hurley, Esq. Jonathan A. Lax, Esq.

- 21 -