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. 2011 DNH 142 Hillsborough County Dept. Of Corrections, et a l .
MEMORANDUM AND ORDER
Rico Contino brings this action pursuant to 43 U.S.C. §
1983 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., 261 F.3d 90, 94 (1st Cir. 2001).
A party seeking summary judgment must first identify the
absence of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (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 ., 95 F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at
323 .
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, 909 F.2d 8, 15 (1st Cir.
1990) (citing Estelle v. Gamble, 429 U.S. 97, 106 (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 42
U.S.C. § 1983 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, 534
U.S. 516, 532 (2002); Acosta v. US Marshals Serv., 445 F.3d 509,
512 (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, 445 F.3d at 512 (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, 304 F.3d 75,
77-78 (1st Cir. 2002). A prisoner's failure to exhaust
available administrative remedies results in dismissal of the
case. Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 36 (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.
Id. 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. Id. 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. Id. 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, 292 F.3d 31, 35 (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, 366 F.3d 85, 88 (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), 2011 WL 773233, at *2 (E.D. Cal. Feb. 28, 2011); Smedley v. Reid, No. 08cvl602 BTM (BLM), 2010 WL 391831, at *3-4 (S.D. Cal. Jan. 27, 2010); Gibson v. Brooks, 335 F.Supp.2d 325, 330 (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,
485 F.3d 150, 155 (1st Cir. 2007); Surprenant v. Rivas, 424 F.3d
5, 13 (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, 485 F.3d
at 155 (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,
244 (1983)). Courts have applied the same standard to prisoner
medical claims brought under the Fourteenth and Eighth
Amendments. Id.; Burrell v. Hampshire County, 307 F.3d 1, 7
(1st Cir. 2002). That standard is whether the challenged
official action constituted "deliberate indifference" to the
prisoner's serious medical needs. Farmer v. Brennan, 511 U.S.
825, 828 (1994); Estelle, 429 U.S. at 104; Ramos v. Patnaude,
640 F.3d 485, 489 (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, 923 F.2d 231, 234
(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, 511 U.S. at 834;
Estelle, 429 U.S. at 106. 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,
821 F.2d 39, 43 (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., 464 F.3d 158, 162 (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, 511 U.S. at 834; Estelle,
429 U.S. at 106; Ramos, 640 F.3d at 489. 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, 2011 WL
4068533, at *2 (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, 923 F.2d at 234 (citing Sires v.
Berman, 834 F.2d 9, 13 (1st Cir. 1987)). To constitute
deliberate indifference, the treatment provided must be "so
inadequate as to shock the conscience," Ramos, 640 F.3d at 489
(citing Sires, 834 F.2d at 13) or "so dangerous (in respect to
health or safety) that a defendant's knowledge of a large risk
can be inferred," Torraco, 923 F.2d at 235 (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, 485 F.3d at 156; see
Feeney, 464 F.3d at 162.
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, 485 F.3d at 156; Torraco, 923 F.2d at 235. 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, 485 F.3d at
156. 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, 464 F.3d at 162; Torraco, 923 F.2d
at 235; Sires, 834 F.2d at 13. He was not entitled to the
medications of his choice, even if those medications had been
prescribed by outside providers. See Feeney, 464 F.3d at 162;
Torraco, 923 F.2d at 235; Sires, 834 F.2d at 13. 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, 300 F.3d 60, 64 (1st Cir. 2002) (citing Farmer,
511 U.S. at 835-40). 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, 464 F.3d at 162
(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 id. 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, 923 F.2d at 234; Sires, 834 F.2d
at 13 .
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, 464 F.3d at 162; Torraco, 923 F.2d at 235; Sires, 834
F.2d at 13. 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, 429 U.S.
at 104; Ruiz-Rosa, 485 F.3d at 156; Feeney, 464 F.3d at 162.
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 -