Judge Nixes Suit Against ICE Over Lack of HIV Care

(CN) - A federal judge in San Francisco dismissed two men's claims that they did not receive HIV treatment while in the custody of U.S. Immigration and Customs Enforcement, leading to one man's death.

Juan Carlos Baires was arrested in 2008 for being in the United States illegal and was and taken to the Santa Rita County Jail, where he identified himself as HIV positive and was given a daily dose of three HIV medications.

When he was transferred to the Lerdo Detention Facility, he claimed officials failed to list any medications on his medical transfer form.

He informed a doctor about the problem, but said he never received medication. Baires soon developed a pain in his foot and was diagnosed with a fungal infection. An agent allegedly promised Baires' lawyer that he would get proper medications, but never followed through.

Baires eventually got an appointment at an immunology clinic, but was never taken there. Instead, he went to the Kern Medical Center for severe chest pain, where doctors cut the fibrous covering of his muscles to relieve tension. He died the same day of cardiac arrest.

Baires had not received medication for 23 days, according to court documents.

Teofilo Miranda, also HIV positive, claimed he was given a similar runaround after being taken into custody. He informed agents of his condition, but did not receive anti-retroviral therapy, despite repeated requests, because he was not on the medication upon incarceration.

Five days before his scheduled HIV appointment, Miranda was also transferred to Lerdo, where Dr. Khosrow Mostofi declined to prescribe medication. Miranda said Mostofi instead gave him a fungal cream used to treat athlete's foot, instructing him to use it on his face.

Miranda's medical records never arrived at Lerdo. When Miranda was released, he went to a hospital in San Francisco and was immediately given anti-retroviral medication.

The U.S. Immigration and Customs Enforcement's (ICE) medical policy requires a health screening of all inmates within the first 24 hours at an ICE facility. Detainees with chronic health care needs are referred to a primary care provider, but must first "jump through a series of bureaucratic hoops designed to save ICE money before they get treatment," according to the complaint.

Some detainees are subject to month-long waits, the lawsuit states.

Baires' mother and Miranda sued ICE, the Department of Homeland Security and various individual agency directors. The pair argued that the directors had "conscientiously implemented policies to 'ration' essential medical care," resulting in mistreatment.

U.S. District Judge Charles Breyer, the brother of U.S. Supreme Court Justice Stephen Breyer, dismissed the claims without prejudice, saying the injuries were caused by the actions of individuals, not national policies.

ICE procedure dictates that patients "with diseases such as HIV/AIDS must be treated in accordance with nationally recognized standards and guidelines."

The treatment Baires and Miranda endured was in direct violation of this policy, and was thus not the responsibility of the directors.

"The individual defendants-policymakers in Washington, D.C.-never interacted with Plaintiffs," Breyer wrote. "And while they are alleged to have enacted unconstitutional policies, the only policies articulated in the [complaint] are not alleged to have harmed Plaintiffs."

The judge also rejected claims that the directors knew about Baires and Miranda's medical conditions and were constitutionally bound to ensure they received proper care.

Breyer explained that the departments are too big for directors to know each individual's needs, despite media coverage of the poor treatment of immigrant detainees, which Baires and Miranda argued should have alerted the directors to their plight.

Baires and Miranda's Americans with Disabilities and Rehabilitation Act claims were also dismissed, and Breyer rejected their claims against four ICE officers who were allegedly informed of the problems but failed to fix them.

"Plaintiffs were being seen by a physician, and the fact that the physician is alleged to have been dangerously careless and incompetent does not necessarily vest an individual ICE officer with the discretion to change doctors, change medications, or otherwise alter Plaintiffs' treatment," Breyer wrote.

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