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Back to Section One | Back to Arts & Entertainment
posted Friday, September 17, 2010 - Volume 38 Issue 38
HIV-positive detainees lose suit against ICE
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HIV-positive detainees lose suit against ICE

by Mike Andrew - SGN Staff Writer

A federal district court in San Francisco dismissed the claims of two HIV-positive men that they were denied appropriate medical care while in the custody of ICE (federal Immigration and Customs Enforcement).

ICE is the federal agency charged with enforcing immigration laws and arresting undocumented immigrants. It is under the U.S. Department of Homeland Security.

The mother of Juan Carlos Baires claimed that he was denied HIV medications after his arrest for being in the U.S. illegally - in spite of the fact that Baires disclosed his HIV status to ICE agents upon his arrest and repeatedly asked for medical treatment while in ICE custody.

Baires subsequently died while in custody.

The second plaintiff, Teofilo Miranda, also disclosed his HIV status when arrested by ICE agents and was also repeatedly denied appropriate medications. Fortunately for him, he was released by ICE and immediately sought - and received - treatment at a San Francisco hospital.

Judge Charles Bryer - the brother of U.S. Supreme Court Justice Stephen Breyer - ruled on September 10 that the plaintiff's suffering was caused by the actions of individuals, not by ICE policy, and therefore ICE was not responsible.

Breyer stated that he was dismissing the suit "without prejudice," however, meaning that Miranda and Baires' family can still sue the individual doctors and others who handled their cases.

ICE medical policy requires a health screening of all detainees within their first 24 hours at an ICE facility.

Detainees with chronic health care needs are then referred to a primary care provider.

According to the compliant in this case, detainees are required to "jump through a series of bureaucratic hoops designed to save ICE money before they get treatment&."

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

In Baires' case, the wait was fatal.

When he was arrested in 2008, he identified himself as HIV-positive and was given a daily dose of three HIV medications.

He was then transferred to the Lerdo Detention Facility, where officials failed to list any medications on his medical transfer form.

Although he informed a doctor about the problem, 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 HIV condition, but did not receive anti-viral medications, despite his repeated requests, because he was not on the medication upon incarceration.

Five days before a scheduled appointment with an HIV specialist, 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-viral medication.

Throughout their ordeal, ICE "conscientiously implemented policies to 'ration' essential medical care," resulting in mistreatment, and the death of one man, the lawsuit charged.

Judge Breyer ruled that the treatment Baires and Miranda endured was in direct violation of ICE policy, and therefore could not be the responsibility of ICE 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."

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

Breyer held that federal departments are too big for directors to know each individual's needs, in spite of media coverage of the poor conditions in which immigrant detainees are held, which Baires and Miranda argued should have alerted ICE 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.

ICE was contacted by SGN for comments on this story. A Department of Homeland Security spokesperson did return SGN's call and promised to research the case and call back with an official comment by September 17.

As SGN went to press on September 16, DHS had not yet called.

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