Judge Finds U.S. Lack of Treatment for Immigrant ‘Cruel And Unusual’ Punishment

     LOS ANGELES (CN) – Finding the Immigrations and Customs Enforcement’s acts “beyond cruel and unusual,” a federal judge refused to dismiss a complaint from an immigration detainee whose cancerous penis was amputated after the government repeatedly denied him medical treatment for nearly a year, despite his repeated requests for care to an obviously infected organ, and despite doctors’ repeated and “urgent” requests for biopsies to test for cancer. Francisco Castaneda died two days after his penis was amputated.




     “If plaintiff’s evidence holds up, the conduct that he has established on the part of Defendants is beyond cruel and unusual,” U.S. District Judge Dean Pregerson wrote.
      “Defendants’ own records 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.”
     Castaneda, imprisoned at the Immigrations and Customs Enforcement San Diego Correctional Facility, began asking for medical attention for his painful, suppurating penis on March 27, 2006. A series of doctors told ICE that Castaneda needed to see a specialist, that he had a family history of cancer, and that a biopsy was needed to “rule out” penile cancer.
     It took ICE months to get around to offering Castaneda any treatment at all. In June 2006, a doctor said it was “urgent” that he be tested for cancer. ICE officials denied these requests in August and October, despite seeing that his condition “obviously was worsening,” and that its treatment of choice – ibuprofen – was “having no effect on his pain” and that his penis was bleeding.
     In early December, Castaneda was transferred to the San Pedro immigration prison, where ACLU lawyers began to advocate for him. On Jan. 24, 2007, ICE finally approved a consultation with a specialist, “who diagnosed a fungating penile lesion that was ‘most likely penile cancer’ and ordered a biopsy,” Judge Pregerson wrote.
     On Jan. 29, the ACLU faxed “yet another letter to ICE,” demanding medical care, and ICE scheduled Castaneda for a biopsy in February. “However, a few days before the procedure, Castaneda abruptly released from ICE custody.” The 35-page ruling indicates that his release, like the long, repeated denial of medical care, was done, at least in part, to save ICE money.
     The ruling continues: “Castaneda then went to the ER of Harbor-UCLA Hospital in Los Angeles on Feb. 8, 2007, where he was diagnosed with squamous cell carcinoma. His penis was amputated on Valentines Day, 2007. … Harbor-UCLA confirmed that Castaneda had metastatic cancer.” He died two days later.
     Judge Pregerson wrote, “Plaintiff has thus submitted compelling evidence that Defendants purposefully mischaracterized Plaintiff’s medical conditions as elective in order to refuse him care. … Official records document Defendants’ circular logic that because they would not allow him to have the biopsy, ‘he DOES NOT have cancer at this time’; because he does not have cancer, he therefore does not need a biopsy. In other words, as long as they could label Castaneda’s condition elective, Defendants could remain willfully blind about his lesion and avoid having to pay for its treatment. If plaintiff’s evidence holds up, the conduct that he has established on the part of Defendants is beyond cruel and unusual.”
     In a footnote, Judge Pregerson wrote: “The Court has serious questions as to the constitutionality of a policy of refusing to pay for all medical treatment that can be characterized as ‘elective’ because, as evidenced by this case, the label fails to identify accurately who needs care.”
     In a footnote to his “beyond cruel and unusual” comment, Judge Pregerson wrote: “After all, Plaintiff has submitted powerful evidence that Defendants knew Castaneda needed a biopsy to rule out cancer, falsely stated that his doctors called the biopsy ‘elective’, and let him suffer in extreme pain for almost one year while telling him to be ‘patient’ and treating him with Ibuprofen, antihistamines, and extra pairs of boxer shorts. Everyone knows cancer is often deadly. Everyone knows that early diagnosis and treatment often saves lives. Everyone knows that if you deny someone the opportunity for an early diagnosis and treatment, you may be – literally – killing the person. Defendants’ own records 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.”

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