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Contino v. City of New York

United States District Court, Second Circuit

August 7, 2013


Edward Contino, pro se, Sing Sing Correctional Facility For the Plaintiff.

Jeffrey Dantowitz, Office of Corporation Counsel of the City of New York, New York, NY, for the Defendants.


DENISE COTE, District Judge.

Edward Contino ("Contino") brings this action pro se pursuant to 42 U.S.C. § 1983 against the New York City Department of Corrections ("DOC"), Dora Schriro, Commissioner for DOC, and Evelyn Maribal, Warden of Otis Bantum Correctional Center ("OBCC"). Contino alleges that the defendants violated his constitutional rights by failing to provide access to medical care and laundry services, and by retaliating against him for complaining of prison conditions. Following discovery on the issue of whether the plaintiff has exhausted his administrative remedies, the defendants moved for summary judgment. For the reasons that follow, the defendants' motion for summary judgment is granted.


The following facts are undisputed or taken in the light most favorable to the plaintiff. Contino is an inmate at the Sing Sing Correctional Facility in Ossining, New York. This lawsuit concerns the period from September 3, 2011 until January 23, 2012, when he was an inmate at OBCC in East Elmhurst, New York.

Immediately before Contino entered the OBCC, he had been treated at Richmond University Hospital for hypertension, high blood pressure, depression, and anxiety. At the time, he exhibited symptoms of vertigo, headaches, and fainting spells. Upon entering the OBCC, the plaintiff claims that he was placed in an overcrowded housing area. Due to the overcrowding he was not provided access to adequate medical treatment. Specifically, Contino claims that medical screenings took too long to complete or in some cases were unavailable. Contino also alleges that laundry services were effectively unavailable during the four months he resided in OBCC.

Shortly after arriving at OBCC, on September 5, Contino received the DOC Inmate Handbook, which describes the steps for filing and pursuing a grievance through DOC's Inmate Grievance Resolution Program ("IGRP"). According to IGRP procedures, in order to submit a grievance, an inmate may complete an "Inmate Grievance Interview Slip" or an "Inmate Grievance Form" and give it to an Inmate Grievance Resolution Committee member or Grievance Officer, or deposit it in a Grievance Box. In the event that an inmate is unable to gain access to an official slip or form, he may write his initial grievance on an ordinary piece of paper. If no response to the grievance is received within five business days, an inmate "may request a formal hearing." Pursuant to more detailed description of the IGRP procedures contained in Directive 3375R-A ("Directive"), the request for a formal hearing is to be written on Form #7101R.[1] Thereafter, a dissatisfied inmate can appeal to the Warden, then to the Central Office Review Committee ("CORC"), and finally to the Board of Correction ("BOC"). The IGRP procedures also advise that "[i]f you do not receive a response to your grievance at any step of the Grievance Procedure within the time period required... you may proceed to the next step of the Grievance Procedure." The Handbook informs inmates that "[m]ore detailed information on the time frames and process for all the steps in the procedure is included in [the Directive], " which is available at "the Grievance Office and the Law Library."

Additional procedures exist for inmates who wish to file complaints pertaining to "the delivery of health care services" in a correctional facility. The Charter of the City of New York vests the Department of Health and Mental Hygiene ("DoHMH") with authority to "promote or provide medical and health services for the inmates of prisons maintained and operated by the city." N.Y.C. Charter § 556(d)(8). DoHMH has issued policies and procedures that govern inmates' complaints about the delivery of medical, dental, and mental health care in the correctional facilities. These procedures provide that

[p]atients are encouraged to discuss health care complaints or requests for a second opinion with their applicable health care provider. However, if a patient is dissatisfied with the outcome of this informal process, he/she must file a written complaint and place it in a "Second Opinion/Complaint Box."

According to the policy, a "Second Complaint/Complaint Box" is to be located in "every facility clinic and mini-clinic" in "an area which is visible and accessible to patients in the clinic." "Brochures which describe the available health services, how to access health services, how to file a complaint regarding health services (or appeal from a complaint determination) and/or a request for a second opinion, " are, according to the procedure, "distributed at intake by health care staff." The parties have not submitted evidence of whether the OBCC followed these procedures for publicizing the DoHMH grievance procedure for complaints regarding health care services.

On October 8, 16, and 27, 2011, Contino filed three separate grievances with the OBCC. The October 8 grievance, which was written on a plain piece of paper, complained of overcrowding, lack of medical care, and lack of laundry services. The October 16 grievance, also written on a plain piece of paper, requested "a chance to speak to someone on [the] committee." The grievance stated that Contino had "filed [a] grievance on 10/8 and [had] received no response." It further provided that Contino had "spoken to several [Correction Officers] and Officers [Captains], Serges [sic], about [his] complaints to no avail." Contino's October 27 grievance was written on an "Inmate Grievance Interview Slip" and again complained of the overcrowding in the facility. Contino did not appeal any of his grievances to the Warden, CORC, or the BOC.[2]

Contino claims that, while he tried to proceed with the grievance process he was "placed in the Box, " or disciplinary housing, [3] was denied meals and showers, denied access to the Law Library and barbershop, and given a disciplinary report. He believes these actions were taken in retaliation for his filing of grievances. Contino further contends that these actions and his fear of additional retaliation impeded his ability to pursue the grievance process. Contino also stated in interrogatory responses, however, that he believed he did not need to appeal to the Warden, CORC, or the BOC because he never received responses to his October 8, 16, and 27 grievances.

On the same day that Contino filed his third grievance, he executed the original complaint in this action. The complaint is dated October 27, 2011 and was received by the Clerk of Court on November 21. It was largely identical to a complaint filed in Patterson v. City of New York, No. 11 Civ. 7976 (DLC) on November 4.[4] This Court stayed the Contino action pending a decision on the motion to dismiss the Patterson action and then granted Contino leave to amend his complaint in accordance with the August 9, 2012 Opinion issued in Patterson. Patterson v. City of New York, et al., 11 Civ. 7976, 2012 WL 3264354 S.D.N.Y. Aug. 8, 2012). Contino's Amended Complaint was received on November 7. A motion to dismiss was denied on February 7, 2013. The ...

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