Failure to Treat Immigrant Detainee’s Fatal Penile Cancer Ruled “Beyond Cruel”

by John E. Dannenberg

A U.S. District Court (C.D. Cal.) has ruled that the repeated failure of U.S. immigration authorities over an eleven-month period to provide medical testing and treatment for a detainee’s cancerous penile lesion that ultimately proved fatal was “beyond cruel and unusual punishment.” The court held that a civil rights damages suit brought by the decedent (and now his survivors) could proceed.

Francisco Castaneda, an illegal Salvadoran immigrant, was housed at a San Diego detention center on charges of drug possession and intent to sell. He was later transferred to the custody of Immigration and Customs Enforcement (ICE). On March 27, 2006, he complained to medical staff of a painful, growing lesion on his penis. An ICE physician’s assistant recommended a urology consult and an immediate biopsy.

The subsequent chronology of events included an odyssey of efforts to obtain medical care that, according to U.S. District Court Judge Dean D. Pregerson, “can be summarized by one word: nothing.” Judge Pregerson termed it the worst case of cruel and unusual punishment he had ever seen.

On April 11, 2006, ICE officials noted that Castaneda had a family history of cancer, and a Treatment Authorization Request (TAR) was filed with the Division of Immigration and Health Services (DIHS), requesting a biopsy and circumcision. The TAR stated Castaneda’s pain was an 8 on a scale of 1 to 10, and that the lesion had a foul odor. DIHS approved the TAR on May 31.

On June 7, 2006, Castaneda saw an oncologist, Dr. John Wilkinson, who ordered an “urgent urologic assessment of biopsy and definitive treatment,” because he thought Castaneda “might have penile cancer, morbidity from which was high if not treated early.” He offered to admit Castaneda to the hospital on the spot. However, that same day Wilkinson was overruled by DIHS Dr. Esther Hui, who, in order to avoid costly medical treatment on the government’s tab, rejected the biopsy as “an elective outpatient procedure.”

Castaneda filed a grievance on June 11, requesting the procedures ordered by Dr. Wilkinson and stating he was “in considerable pain and in desperate need of medical attention.” His grievance was denied. DIHS reported on June 23 that Castaneda’s penis was “getting worse” with more swelling, foul odor, drainage and bleeding from the foreskin. Then, with a healthy dose of bureaucratic doublespeak, records indicate that DIHS held on June 30 that because Castaneda had not had a biopsy, he did “NOT have cancer at this time,” adding that he needed “to be patient and wait.”

One month later, DIHS staff reported more draining, odor and growth of the lesion. They further noted a swollen colon and prostate, while calling those symptoms an “unknown etiology.” Walker, a DIHS worker, wrote (untruthfully) that Dr. Hui had not denied Castaneda any treatment, that there was no active TAR awaiting approval at DIHS headquarters in Washington, D.C., and that there “was no emergent need.”

On July 13, DIHS took Castaneda to the emergency room at Scripps Mercy Hospital in Chula Vista, which notated the need for a biopsy but did not perform one. A hospital physician unfamiliar with Castaneda’s condition superficially diagnosed his problem as “genital warts.” DIHS chose to follow the hospital’s diagnosis rather than Dr. Wilkinson’s request for “urgent” care. By July 26, while conceding that Castaneda’s condition was getting worse, ICE officials told him that “surgical removal, at the current time, would be considered elective surgery; that as such the Federal Government will not provide for such surgery.”

Another TAR for a biopsy was submitted on August 11. On August 22, Dr. Masters, a urologist, requested circumcision and biopsy at a hospital. But DIHS again dispassionately wrote this up as an elective procedure and it was therefore denied. Four days later, ICE staff “treated” Castaneda with antihistamines and Ibuprofen. On August 30 he was once again informed by DIHS that any surgical intervention was elective and thus would not be provided.

By September 8, DIHS noted that the Ibuprofen did not relieve Castaneda’s pain, that he complained of regular discharge, and that he had blood on his shorts. The following month another TAR for surgery was submitted, which was denied on October 26 as “not a covered benefit.” In records dated November 9, staff documented that Castaneda was also having difficult bowel movements due to swelling in his colon. Six days later DIHS ordered more “treatment” in the form of issuing him more underwear, due to the bleeding from his groin.

In late November 2006, Castaneda was transferred to the San Pedro Service Processing Center, where ACLU lawyers took up his cause. On January 25, 2007 he was seen by a doctor who diagnosed a “fungating penile lesion that was ‘most likely penile cancer.’” A biopsy was ordered. On January 29 the ACLU contacted ICE officials and urged them to provide medical treatment after ten months of inaction. In response, a biopsy was scheduled for early February.?However, Castaneda was abruptly released from ICE custody a few days before the appointment; to add insult, ICE canceled the scheduled appointment. The next day he went to the emergency room at Harbor-UCLA Medical Center in Los Angeles, where he was finally diagnosed with cancer: metastatic squamous cell carcinoma. His penis was amputated nine days after he was released, on Valentine’s Day 2007. Castaneda died on February 16, 2008 after a year of painful chemotherapy.

Before he died, though, he testified before Congress about the abysmal medical care provided by ICE. “I am a 35-year-old man without a penis with my life on the line,” he told the House Immigration Subcommittee on Oct. 4, 2007. “I had to be here today because I am not the only one who didn’t get the medical care I needed. It was routine for detainees to have to wait weeks or months to get even basic care. Who knows how many tragic endings can be avoided if ICE will only remember that, regardless of why a person is in detention and regardless of where they will end up, they are still human and deserve basic, humane medical care.”?A federal civil rights lawsuit was filed on Castaneda’s behalf, raising Bivens claims (Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)). DIHS responded that it was immune from suit under the Public Health Services Act § 233(a), and that Castaneda was covered only by the Federal Tort Claims Act (FTCA). They then argued facetiously that the FTCA didn’t cover constitutional torts, since Bivens claims cannot be brought under the FTCA, and therefore he had no available legal remedy.

In an extensive discussion, the district court ruled on March 11, 2008 that Bivens claims are available to remedy Eighth Amendment violations; that § 233(a) does not bar Bivens claims involving constitutional rights; and that the FTCA did not subsume Castaneda’s right to raise such claims.

In so ruling, the court departed from a Second Circuit decision, Cuoco v. Morisugu, 222 F.3d 99 (2nd Cir. 2000) that appeared to hold otherwise, and went so far as to ask the Second Circuit to reconsider its position. The important distinction in this case was that FTCA “garden variety” medical malpractice claims were distinct from constitutional violations, and that the latter were superior under § 233(a) and could be brought as Bivens actions.

The district court held that in shirking their constitutional duty to provide medical care by hiding behind an “elective surgery” sham, the DIHS defendants could not insulate themselves from liability. The court further decried as loathsome the defendants’ circular reasoning that because they had denied Castaneda a biopsy, he therefore did not have cancer and could be denied treatment.

Judge Pregerson rebuked, in his blistering critique, ICE’s “attempt to sidestep responsibility for what appears to be … one of the most, if not the most, egregious Eighth Amendment violations the Court has ever encountered.” He further stated that if proven, the defendants’ actions “bespeak of conduct that transcends negligence by miles,” and that Castaneda’s case “should be taught to every law student as conduct for which the moniker ‘cruel’ is inadequate.”

The defendants’ motion to dismiss was denied. The federal defendants appealed the ruling, and by order dated July 14, 2008, proceedings against those defendants were stayed pending review by the Ninth Circuit. Castaneda’s family is represented in the suit by attorneys with Public Justice, a public interest law firm formerly known as Trial Lawyers for Public Justice. See: Castaneda v. United States, 538 F.Supp.2d 1279 (C.D.Cal. 2008).

Additional sources: Los Angeles Times, San Francisco Chronicle, www.slate.com, Public Justice press release (March 12, 2008)

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