Judge calls immigration officials' decision 'beyond cruel' (LA Times)

Judge calls immigration officials' decision 'beyond cruel' The ruling says a detainee who later died of penile cancer was denied a biopsy of a lesion though several doctors said the procedure was urgently needed. His family will be allowed to seek damages.

By Henry Weinstein, Los Angeles Times Staff Writer
March 13, 2008

In a stinging ruling, a Los Angeles federal judge said immigration officials' alleged decision to withhold a critical medical test and other treatment from a detainee who later died of cancer was "beyond cruel and unusual" punishment.

The decision from U.S. District Judge Dean Pregerson allows the family of Francisco Castaneda to seek financial damages from the government.

Castaneda, who suffered from penile cancer, died Feb. 16. Before his release from custody last year, the government had refused for 11 months to authorize a biopsy for a growing lesion, even though voluminous government records showed that several doctors said the test was urgently needed, given Castaneda's condition and a family history of cancer, Pregerson said.

But rather than test and treat Castaneda, government officials told him to be patient and prescribed antihistamines, ibuprofen and extra boxer shorts, the judge wrote in a decision released late Tuesday. In summary, the judge wrote, the care provided to Castaneda "can be characterized by one word: nothing."

Pregerson blasted public health officials' "attempt to sidestep responsibility for what appears to be . . . one of the most, if not the most, egregious" violations of the constitutional prohibition against cruel and unusual punishment that "the court has ever encountered."

At this stage of the proceedings, "the only question is whether" the plaintiffs' allegations, if true, show that government officials "were deliberately indifferent to his condition. The court finds that they do," Pregerson said.

"Everyone knows that cancer is often deadly. Everyone knows that early diagnosis and treatment often saves lives," the judge wrote. The government's own records, he emphasized, "bespeak of conduct that transcends negligence by miles. It bespeaks of conduct that, if true, should be taught to every law student as conduct for which the moniker 'cruel' is inadequate," Pregerson concluded in permitting the case to move forward.

Conal Doyle, an Oakland attorney who is co-counsel for Castaneda's family members, said the Salvadoran immigrant spent eight months in custody on a charge of possession of methamphetamine with intent to sell, then was transferred to immigration custody because he did not have legal residency.

He first informed the Immigration and Customs Enforcement medical staff at the San Diego Correctional Facility on March 27, 2006, that "a lesion on his penis was becoming painful and growing," the judge wrote. The next day, a physician assistant at the facility examined Castaneda and issued a treatment plan calling for a consultation with a urologist "ASAP" and a request for a biopsy, according to government records cited by the judge.

Over the next 11 months, several doctors, with increasing urgency, made the same recommendations. For example, after conducting an examination June 7, 2006, Dr. John Wilkinson, an oncologist, wrote a report saying he strongly agreed that Castaneda had an urgent need for a biopsy and an assessment by a urologist because he might have "penile cancer. . . . In this extremely delicate area . . . there can be considerable morbidity from even benign lesions which are not promptly treated."

That same day, Pregerson said, Dr. Esther Hui of the Division of Immigration Health Services acknowledged Castaneda's condition but said the government would not admit him to a hospital because her agency considered a biopsy "an elective outpatient procedure."Pregerson, who became a federal judge in 1996, said evidence presented by the plaintiffs suggested that Hui, one of the defendants, characterized the surgery as elective so the federal government would not to have to provide or pay for it.

In February 2007, after the American Civil Liberties Union intervened, a biopsy was finally scheduled. A few days before the procedure, however, Castaneda was abruptly released, the judge wrote. He went to the emergency room of Harbor-UCLA Medical Center and was diagnosed with metastatic squamous cell carcinoma. His penis was eventually amputated, and chemotherapy ultimately proved unsuccessful.

Four months before he died, Castaneda testified at a hearing held by the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, as his teenage daughter listened.

"Mr. Castaneda's case was just outrageous," Rep. Zoe Lofgren (D-San Jose), chairwoman of the subcommittee, said in an interview Tuesday.Lofgren said one of the things she found most troubling was that "bureaucrats" at Immigration and Customs Enforcement in Washington have the power to overrule recommendations of doctors who have actually seen the medical problems of detainees. "That is a recipe for disaster," she said.

Lori Haley, an ICE spokeswoman from Laguna Niguel, said in an e-mail that she could not comment on the Castaneda case but that the agency spent nearly $100 million on medical, dental and psychiatric care for detainees in fiscal 2007.

The government had argued that its employees were immune from this lawsuit. A spokesman for the U.S. attorney's office said the Justice Department might appeal Pregerson's ruling.

Last year, the U.S. Government Accountability Office issued a report on medical care at immigration detention facilities that said officials at some of the sites "cited difficulties in obtaining approval for outside medical and mental health care as . . . presenting problems in caring for detainees."

Doyle said Castaneda's death "would have been prevented by the exercise of basic human decency."

Loyola Law School professor Laurie Levenson said the decision was legally significant and factually compelling. "This was not a detainee with a hangnail," she said. "You should not have to have your penis fall off to get medical treatment from the government."

henry.weinstein@latimes.com