In these Guantanamo and Abu Ghraib years, we’ve gotten used to worrying about how detainees and prisoners held offshore are faring in our government’s hands. The incarceration of Americans and immigrants in America, on the other hand, is supposed to be on surer legal footing. Domestic prisoners have the Constitution on their side, with its protection against cruel and unusual punishment. Too often, though, those protections are not enough—as becomes instantly clear upon reading the recent opinion of Judge Dean Pregerson of federal district court in California, concerning what he calls “one of the most, if not the most, egregious Eighth Amendment violations the Court has ever encountered.”
Francisco Castaneda came to the United States from El Salvador when he was 10. His mother died of cancer when he was 17, before he could become a legal resident. He went to prison on a drug charge and in March 2006 was placed in immigration custody at a prison in San Diego, according to Henry Weinstein’s article in the Los Angeles Times. (Some prisoners such as Castaneda are deported after they serve their sentences in immigration custody. Others are released, depending on the crimes they’ve been convicted of and other factors.) Soon after his transfer, Castaneda complained of a painful lesion on his penis. The medical staffers who saw him took down a family history of cancer and put in a request for a biopsy and circumcision. In June, Castaneda saw an oncologist outside the prison who said that Castaneda’s lesion needed to be assessed and diagnosed quickly. The doctor offered to admit Castaneda but said the doctors at the prison wanted to do a less costly outpatient biopsy. “They understand the need for urgent diagnosis and treatment,” the oncologist wrote, to underscore that the biopsy couldn’t wait.
And yet from there, Castaneda’s medical history turns gothic. His lesion got larger, odorous, and painful. “I am in desperate need of medical attention,” he wrote in filing a grievance and asking again for a biopsy. The request was denied: The Department of Immigration Health Services considered a biopsy an “elective” procedure. The department’s Dr. Esther Hui wrote that Castaneda does “NOT have cancer at this time.” She added, “Basically, this pt needs to be patient and wait.”
In July, the prison took Castaneda to the emergency room. There he saw not the oncologist nor other doctors familiar with his condition but a new physician who examined him without doing the biopsy or noting his family history of cancer. This doctor decided that Castaneda’s problem was genital warts. The Immigration Health Services went with that recommendation over the previous ones. No biopsy.
In August, the prison repeated this denial and refused Castaneda a circumcision for his inflamed foreskin, reiterating that these procedures were “elective.” In November, Castaneda reported bleeding and discharge. “It’s getting worse, and I don’t even have any meds—nothing for pain and no antibiotics,” he told health services. They put in a request for seven pairs of clean boxer shorts a week.
The ACLU found out about Castaneda in December and started jumping up and down on his behalf. When he got to the doctor in December, he was diagnosed with a “fungating penile lesion that was most likely penile cancer.” Still, no biopsy. By the time the procedure was finally scheduled, Castaneda had been unexpectedly discharged. He went to the ER at a Los Angeles hospital. He was diagnosed with cancer. Judge Pregerson’s opinion includes this awful statement: “His penis was amputated on Valentine’s Day, 2007.” And this one, referring to the chemotherapy that followed: “However, the treatment was not successful, and on February 16, 2008, Mr. Castaneda died.”
When the group Public Justice and the firm Willoughby Doyle sued on behalf of Castaneda’s heirs (he has a 14-year-old daughter), they did so via the Federal Torts Claim Act and the Constitution, using a path to court called a Bivens action, for a 1971 case in which the Supreme Court said that a victim of a constitutional violation by an agent of the federal government can recover damages against that official in federal court. * The suit named five immigration officials, including Dr. Hui.
In federal court in California before Judge Pregerson, the defendants argued that they were immune from suit based on a law called the Public Health Service Act. In passing this law, the defense theory goes, Congress explicitly cut off recovery for constitutional violations, through Bivens, related to medical neglect. This matters because damages for a FTCA claim in California are capped at $250,000, with no possibility of punitive damages. (And if ever there were a case in which a jury might feel outraged and go for punitives against the government, you’d think this would be the one.) Damage awards for constitutional violations aren’t capped, by contrast. The defense also argued that Castaneda’s suit couldn’t go forward under FTCA either, which would have left Castaneda’s estate with no way to get into court.
Amazingly, given what Castaneda says he suffered, it looked from the decisions of many other district courts, and the U.S. Court of Appeals for the Second Circuit, like the defendants were right. Castaneda appeared to have no constitutional remedy. But Judge Pregerson ruled otherwise, based on some deft statutory detective work.
I’ll spare you all the et seq. references from the federal code. The upshot is that Congress intended to make FTCA the only way to sue for some medical injuries caused by federally employed doctors. But if Judge Pregerson is right, there’s an explicit exception for lawsuits brought for a violation of the Constitution. Which, if the facts Castaneda’s suit alleges are true, this certainly is: Dying of untreated cancer after having your penis amputated would seem to epitomize cruel and unusual punishment.
Castaneda testified before Congress last fall about his ordeal, four months before he died. He asked lawmakers to overhaul the medical care provided by immigration services to prevent the suffering he experienced. The evidence his case brings to light of immigration-detention doctors withholding the tools of cancer diagnosis to save money speaks for itself. We can hope, at least, that the doctors of the Department of Immigration Health Services are soberly at work on the changes Castaneda called for. In the meantime, if Judge Pregerson’s analysis holds up, this case will have another legacy: opening a new path to court for prisoners whose medical care, horribly, becomes part of their punishment.