Denying HIV Care May Leave Agency Liable

     (CN) – A federal judge gave the green light to a suit brought by two HIV-positive men alleging that Immigration and Customs Enforcement violated their constitutional rights by denying them access to treatment while they were in custody, resulting in one man’s death.



     U.S. District Judge Charles Breyer had previously dismissed the suit filed by Teofilo Miranda and the mother of Juan Carlos Baires because it named as defendants high-level federal officials who “never interacted with plaintiffs,” Breyer said. “While they are alleged to have enacted unconstitutional policies, the only policies articulated in the [complaint] are not alleged to have harmed plaintiffs.”
     Lawyers for Miranda and Baires’ family amended the original complaint twice leaving out the officials to whom Breyer had objected, focusing instead on individuals in the ICE chain of command and the California detention facility where the men were housed by the Kern County Sheriff’s office.
     Claiming that the United States is the only proper defendant under the Federal Tort Claims Act, the federal government asked Breyer to remove all of the individual federal defendants.
     Agreeing that they were too far removed from the harm allegedly done to Miranda and Baires, Judge Breyer dismissed the claims against all of the individual federal defendants, except one, with prejudice.
     ICE Agent Brian Myrick remains as the sole named federal defendant serving as proxy for the United States under the plaintiffs’ federal tort action. He is also the subject of their Bivens action, which claims that he acted with “reckless and deliberate indifference” under the Fifth and Eighth Amendments by failing “to take reasonable action to summon aid, or provide, or cause to be provided such medical care and treatment” for Miranda and Baires.
     Breyer refused, however, to dismiss the claims Agent Myrick, who was the deportation officer at the Lerdo Pretrial detainment facility where Miranda and Baires were sent to await deportation hearings.
     The government had said there was no allegation that Myrick knew that the two detainees needed medical treatment. Even if he did know, the government says he took the appropriate steps to move get them the treatment they needed.
     Letters sent to Myrick from the detainees’ lawyers and physicians regarding the mens’ HIV status indicate otherwise, according to the court. Since the mens’ lawyers called Myrick to follow up on those letters, “Myrick can be said to have known of and disregarded an excessive risk to their health and safety,” Breyer said.
     The government had also moved to dismiss Miranda and Baires’ claims under the Federal Tort Claims Act because the men were in a facility operated by an independent contractor, the Kern County Sherriff’s office, at the time they were allegedly denied medical treatment.
     Under the act, the federal government can only be held responsible for the actions of its own employees, not those of third-party contractors.
     Quoting his own previous order on the same issue, Breyer said that the complaint actually alleges that it was federal employees who “did allegedly transfer [Baires] without his medication, take an excessive amount of time to address his requests for medication, and cause Miranda to miss medical appointments at which he hoped to receive such medication,” not Kern County employees.
     Miranda and Baires had perfected other deficiencies in their previous complaints, including citing relevant state that law that would hold a private person liable for negligence which is a requirement under the act, the judge held.
     They also supported their claim for intentional infliction of emotional distress, which is only possible under the act where the U.S. would be liable under state law if it were a private person.
     Breyer said the detainees had meet that burden under California law by alleging that ICE and the Department of Homeland Security deliberately limited access to medical care as a cost-saving device, and that those actions led Baires and Miranda to suffer emotional distress as a result.
     The complaint cites letters from Baires to his mother and girlfriend saying, “I have been crying of the pain I am not eating or sleeping because of the pain,” and “I am writing the letter little by little because the pain will not let me do anything. I don’t even have an appetite because of it. The only thing I do is cry. I cry as I have never cried before.”
     Miranda also pleaded emotional distress, saying in the complaint that he “thought constantly about Baires’ death, and was tormented by the possibility that he would also die, sick and alone, without anyone knowing or caring.” These were adequate allegations to sustain the two men’s claim Judge Breyer said.
     Miranda and Dora Baires are represented by Jayne Fleming, James Wood, Mary Oppedahl, Ray Cardozo, Amy Lifson-Leu and Katie Annad with Reed Smith in San Francisco and Barry Thompson in the firm’s Los Angeles office.

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