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Schibi v. Semple

United States District Court, D. Connecticut

March 19, 2018



          Janet C. Hall United States District Judge.

         On January 27, 2017, the plaintiff, Michael Schibi (“Schibi”), a former inmate of the Connecticut Department of Correction, filed a Complaint pro se pursuant to title 42 section 1983 of the United States Code against Commissioner of Correction Scott Semple, Dr. Johnny Wu, Dr. Syed Naqvi, Dr. Pillia, MaryAnn Castro, MaryAnn Rodriguez, and two unidentified correction officials for acting with deliberate indifference to his serious medical needs, in violation of his Eighth Amendment protection against cruel and unusual punishment and his Fourteenth Amendment right to due process.[1]Complaint (“Complaint”) (Doc. No. 1). On April 13, 2017, this court issued its Initial Review Order permitting Schibi's Eighth and Fourteenth Amendment claims to proceed against the defendants. Initial Review Order (Doc. No. 7) at 5-6. The defendants answered the Complaint on July 9, 2017. Answer (Doc. No. 15).

         On December 29, 2017, the defendants filed their Motion for Summary Judgment along with a Memorandum of Law and supporting exhibits. Motion for Summary Judgment (Doc No. 25). Dr. Wu argues that he is entitled to summary judgment because the evidence submitted shows that he and other officials in the Department of Corrected provided adequate treatment for Schibi's medical condition. Defendants' Memorandum of Law in Support of Motion for Summary Judgment (“Defs.' Mem.”) (Doc. No. 25-1) at 3-7. The remaining defendants argue they were not personally involved in the alleged constitutional deprivations. Id. at 7-8. Alternatively, all defendants argue that they are entitled to qualified immunity. Id. at 8. Schibi had until February 28, 2018, to submit his response to the defendants' motion but failed to do so.[2]

         For the following reasons, the defendants' Motion for Summary Judgment (Doc. No. 25) is granted.


         In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law” and is “genuine” if “a reasonable jury could return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (mere existence of alleged factual dispute will not defeat summary judgment motion). The moving party may satisfy this burden “by showing-- that is pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curium) (internal citations omitted).

         When a motion for summary judgment is supported by documentary evidence and sworn affidavits and “demonstrates the absence of a genuine issue of material fact, ” the nonmoving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Id.; see also First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289 (1968) (nonmoving party must submit sufficient evidence supporting claimed factual dispute to require factfinder to resolve parties' differing versions of truth at trial).

         In reviewing the record, the court must “construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Gary Friedrich Enters., L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013). If there is any evidence in the record from which a reasonable factual inference could be drawn in favor of the non-moving party for the issue on which summary judgment is sought, then summary judgment is improper. See Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).


         Schibi has been incarcerated in the Connecticut Department of Corrections since 2010. Defs.' Ex. 1 (Doc. No. 25-3). Dr. Wu is a licensed physician in the state of Connecticut and worked as the Director of Medical Services at UConn Health from June 2012 to March 2017. Defendants' Local Rule 56(a)1 Statement (“Defs.' 56(a)1 Stmt.”) at ¶¶ 1-2. He chaired the Utilization Review Committee and co-chaired the Hepatitis C Utilization Review Board at UConn. Id. at ¶¶ 3-4.

         On December 5, 2013, correctional medical staff performed a Hepatitis C screening test on Schibi. Defs.' 56(a)1 Stmt. at ¶ 12. Pursuant to Hepatitis C treatment guidelines available at the time, Schibi needed to be monitored with serial liver function tests for at least six months to establish chronicity and evaluated for immunity to Hepatitis A and B. Id. at ¶ 13. Results of the screening later showed that Schibi did not have proper immunity to Hepatitis B and, thus, required vaccinations over a course of six months. Id. at ¶ 14. At the time, “there was no FDA-approved single oral direct-acting antiviral (DAA) drug to treat [Schibi] . . . .” Id. at ¶ 21; Declaration of Dr. Johnny Wu, Defs.' Ex. 2 (“Wu Decl.”)(Doc No. 25-5) at ¶ 15.

         In August 2014, Schibi brought a medical habeas corpus Petition in state court. Defs.' 56(a)1 Stmt. at ¶ 8. One of the issues asserted in the petition was a demand for Hepatitis C treatment. Defs.' 56(a)1 Stmt. at ¶ 8; Compl. at ¶ 12. Schibi later withdrew his Petition. Defs.' 56(a)1 Stmt. at ¶ 9; Defs.' Ex. 2 (Doc No. 25-4).

         On June 15, 2015, Schibi met the criteria for consideration of treatment for chronic Hepatitis C infection. Defs.' 56(a)1 Stmt. at ¶ 15. He was classified as genotype 4, a less common form of Hepatitis C that is more difficult to treat, and his viral load before starting therapy was 131, 000 IU/ml, a relatively low number. Id. at ¶¶ 14, 16. After reviewing his treatment workup, Dr. Wu and the Hepatitis C Utilization Review Board approved Schibi for Hepatitis C treatment on July 27, 2016. Wu Decl. at ¶ 11. Schibi started his Hepatitis C treatment on August 19, 2016, through the use of a newly-approved medication called Epclusa. Defs.' 56(a)1 Stmt. at ¶ 17. The FDA approved Epclusa in late June 2016. Id. at ¶ 22.

         Schibi took Epclusa daily for a twelve-week period until November 11, 2016. Defs.' 56(a)1 Stmt. at ¶ 19. According to Dr. Wu, Schibi tolerated the medication very well with no adverse effects. Wu Decl. at ¶ 12. Schibi denied experiencing headaches, fatigue, abdominal pain, nausea, vomiting, diarrhea, fevers, or skin rashes. Id. A Hepatitis C viral load conducted on or about November 17, 2016 ...

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