Castaneda v. U.S.

• Decision Date: 02 October 2008
• Docket Number: No. 08-55684.,08-55684.
• Citation: 546 F.3d 682
• Parties: Yanira CASTANEDA, as personal representative of Estate of Francisco Castaneda; Vanessa Castaneda, as heir and beneficiary of the Estate, by and through her mother and Guardian Ad Litem Lucia Pelayo, Plaintiffs-Appellees, v. UNITED STATES of America; George Molinar, in his individual capacity; Claudia Mazur, in her individual capacity; Daniel Hunting, M.D.; S. Pasha, in his/her individual capacity; M. Sheridan, in his/her individual capacity, Defendants, and Chris Henneford, in his individual capacity; Gene Migliaccio, in his individual capacity; Timothy Shack, M.D. in his individual capacity; Esther Hui, M.D., in her individual capacity; Stephen Gonsalves, in his individual capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

546 F.3d 682

Yanira CASTANEDA, as personal representative of Estate of Francisco Castaneda; Vanessa Castaneda, as heir and beneficiary of the Estate, by and through her mother and Guardian Ad Litem Lucia Pelayo, Plaintiffs-Appellees, v. UNITED STATES of America; George Molinar, in his individual capacity; Claudia Mazur, in her individual capacity; Daniel Hunting, M.D.; S. Pasha, in his/her individual capacity; M. Sheridan, in his/her individual capacity, Defendants, and Chris Henneford, in his individual capacity; Gene Migliaccio, in his individual capacity; Timothy Shack, M.D. in his individual capacity; Esther Hui, M.D., in her individual capacity; Stephen Gonsalves, in his individual capacity, Defendants-Appellants.

No. 08-55684.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 15, 2008.

Filed October 2, 2008.

John K. Rubiner, Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, P.C., Los Angeles, CA; Matthew S. Freedus and Robert Graham, Feldesman Tucker Leifer Fidell LLP, Washington, D.C., for the defendants-appellants.

Adele P. Kimmel, Public Justice, P.C., Washington, D.C.; Conal Doyle, Willoughby Doyle LLP, Oakland, CA, for the plaintiffs-appellees.

Jeffrey Clair, United States Department of Justice, Civil Division, Washington, D.C., for the amicus.

Appeal from the United States District Court for the Central District of California; Dean D. Pregerson, District Judge, Presiding. D.C. No. 2:07-cv-07241-DDP-JC.

Before: STEPHEN REINHARDT, MARSHA S. BERZON, and MILAN D. SMITH, JR., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:

This appeal requires us to decide whether 42 U.S.C. § 233(a) establishes the Federal Tort Claims Act (FTCA) as the exclusive remedy for constitutional violations committed by officers and employees of the Public Health Service (PHS), precluding the cause of action recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We hold that it does not.

Factual and Procedural Background¹

A. Factual Background

Decedent Francisco Castaneda was imprisoned by the State of California following a December 6, 2005 criminal conviction and held in the custody of the California Department of Corrections (DOC) until his early release date, March 26, 2006. Several times during his approximately three-and-a-half-month incarceration, Castaneda met with DOC medical personnel regarding a white-and-yellow raised lesion, then measuring approximately two centimeters square, on the fore-skin of his penis. Twice, in late December and late February, DOC medical providers recommended that Castaneda be referred to a urologist, and that he undergo a biopsy to rule out the possibility of squamous cell cancer. This referral never occurred during Castaneda's detention by DOC, and on March 27, Castaneda was transferred to the custody of Immigration and Customs Enforcement (ICE) at the San Diego Correctional Facility (SDCF).

Immediately upon his transfer, Castaneda brought his condition to the attention of the SDCF medical personnel, members of the Division of Immigration Health Services (DIHS).² By this time, the lesion on his penis had become painful, growing in size, bleeding, and exuding discharge. Castaneda met with PHS physician's assistant Lieutenant Anthony Walker,³ who recommended a urology consult and a biopsy "ASAP," noting both Castaneda's history of genital warts and his family history of cancer (his mother died at age 39 of pancreatic cancer). That consultation with an outside urologist, John R. Wilkinson, M.D., did not occur until June 7, 2006. Dr. Wilkinson "agree[d] that" Castaneda's symptoms "require[d] urgent urologic assessment of biopsy and definitive treatment," citing the potential for "considerable morbidity from even benign lesions which are not promptly and appropriately treated." Although Dr. Wilkinson's notes indicate that he "offered to admit [Castaneda] for a urologic consultation and biopsy," DIHS physicians indicated their "wish to pursue outpatient biopsy which would be more cost effective." That biopsy, however, did not occur. Instead, Plaintiffs allege that DIHS officials deemed the biopsy, a standard diagnostic procedure to detect a life-threatening disease,⁴ to be an "elective outpatient procedure" and declined to approve it.

Castaneda's symptoms grew worse and worse. On June 12, he filed a grievance report, asking for the surgery recommended by Dr. Wilkinson and stating that he was "in a considerable amount of pain and ... in desperate need of medical attention." On June 23, he reported to Lt. Walker that his lesion was emitting a foul odor, continued to leak pus, and had increased in size, pressing further on his penis and increasing his discomfort. He complained of increased swelling, bleeding from the foreskin, and difficulty in urination. On July 13, instead of scheduling a biopsy, ICE brought Castaneda to the emergency room at Scripps Mercy Chula Vista. The emergency room physician noted the fungating lesion⁵ on Castaneda's penis and referred Castaneda to urologist Daniel Hunting, M.D., who, following a brief examination, determined that the lesion was "probably condyloma," or genital warts. Dr. Hunting referred Castaneda back to his "primary treating urologist" at DIHS. Four days later, Lt. Walker noted that the lesion continued to grow. On July 26, another physician's assistant explained to Castaneda that "while a surgical procedure might be recommended long-term, that does not imply that the federal government is obligated to provide that surgery if the condition is not threatening to life, limb or eyesight."

On August 22, Castaneda saw another urologist, Robert Masters, M.D. Dr. Masters concluded that Castaneda had genital warts and was in need of circumcision, which would both relieve the "ongoing medical side effects of the lesion including infection and bleeding" and provide a biopsy for further analysis. This treatment was again denied as "elective in nature." The following month, Lt. Walker noticed "another condyloma type lesion [ ] forming and foul odor emitting from uncircumcised area with mushroomed wart." On November 14, DIHS noted that Castaneda's "symptoms have worsened. States he feels a constant pinching pain, especially at night. States he constantly has blood and discharge on his shorts. ... Also complains of a swollen rectum which he states makes bowel movements hard." Castaneda was prescribed laxatives. The following day, Castaneda complained that the lesion was growing, that he could not stand and urinate because the urine "sprays everywhere," and that the lesion continued to leak blood and pus, continually staining his sheets and underwear. DIHS responded by increasing Castaneda's weekly allotment of boxer shorts.

On November 17, Castaneda was transferred from San Diego to ICE's San Pedro Service Processing Center. The "Medical Summary of Federal Prisoner/Alien in Transit" filed in connection with this transfer listed no "current medical problems." Nevertheless, an examination at the Los Angeles/ Santa Ana Staging area noted the presence of "other penile anomalies."

In early December, Castaneda's counsel from the ACLU became involved in his case, sending multiple letters notifying ICE and Health Service Administration officials of Castaneda's medical problems and urging that he receive the biopsy he had been prescribed almost a year earlier. Apparently in response, Castaneda was sent to yet another urologist, Lawrence S. Greenberg, M.D, on December 14. Dr. Greenberg described Castaneda's penis as a "mess," and stated that he required surgery. The ACLU continued to demand treatment, to no apparent avail. Forty-one days later, January 25, 2007, Castaneda was seen by Asghar Askari, M.D., who diagnosed a fungating penile lesion that was "most likely penile cancer" and, once again, ordered a biopsy.

On February 5, rather than provide the biopsy prescribed by Doctors Wilkinson, Masters, Greenberg, and Askari, ICE instead released Castaneda, who then proceeded on his own to the emergency room of Harbor-UCLA Hospital in Los Angeles. He was scheduled for a biopsy on February 12, which confirmed that Castaneda was suffering from squamous cell carcinoma of the penis. On February 14, Castaneda's penis was amputated, leaving only a two-centimeter stump.

The amputation did not occur in time to save Castaneda's life. In addition to creating a 4.5 centimeter-deep tumor in his penis, the cancer had metastasized to his lymph nodes and throughout his body. Castaneda received chemotherapy throughout 2007, but the treatment was ultimately unsuccessful. Francisco Castaneda died February 16, 2008. He was thirty-six years old.

B. Procedural Background

This action began November 2, 2007, as a suit brought by Castaneda against the United States and a number of state and federal officials and medical personnel. Castaneda alleged inadequate medical care while in DOC and ICE custody that amounted to malpractice, and a violation of his constitutional rights. He asserted various malpractice and negligence claims against the United States under the FTCA and against the individual defendants under California law, and asserted constitutional claims (violations of the Fifth, Eighth, and Fourteenth Amendments) against the individual defendants under Bivens and 42 U.S.C. § 1983. He sought compensatory and punitive damages and declaratory relief. Following Castaneda's death, Plaintiffs-Appellants Yanira Castaneda, Castaneda's sister and his estate's personal representative, and Vanessa Castaneda, Castaneda's daughter and sole heir, filed an amended complaint, substituting themselves as plaintiffs and adding various claims under California's Wrongful Death Statute, Cal.Code Civ. Proc. § 377.60 et seq., and Survival Statute, Cal. Code Civ. Proc. § 377.20 et seq.

On January 14, 2008, Defendants-Appellants Commander Chris Henneford, Captain Eugene A....