Castaneda v. United States, 2008 WL 704073 (C.D. Cal. 2008)

[Sorafon]

United States District Court, C.D. California

Francisco CASTANED, Plaintiff,
v.
The UNITED STATES of America, California, George Molinar, i his individual
capacity, Chris Henneford, in his individual capacity, eff Drinkley, in his
individual capacity, Gene Migliaccio, in his individual capacity, Timothy
Shack, M.D., in his individual capacity, Esther Hui, M.D., et al.,
Defendants.

--- F.Supp.2d ----, 2008 WL 704073 (C.D.Cal.)

No. CV 07-07241 DDP (JCx).

March 11, 2008.

Background: Immigration detainee brought action against United States, and
individual federal and state employees, alleging failure to treat serious
medical condition violated United States Constitution and Federal Tort
Claims Act (FTCA). Individual federal defendants moved to dismiss.

Holdings: The District Court, Dean D. Pregerson , J., held that:
(1) Public health officials were not entitled to immunity under FTCA, and
(2) detainee's allegations were sufficient to state Eighth Amendment claim.

Motion denied.^p[

Adele P. Kimmel, Public Justice, Washington, DC, Conal F. Doyle, Willoughby
Doyle, Oakland, CA, for Plaintiff.

Anoiel Khorshid, Keith M. Staub, AUSA-Office of U.S. Attorney, Deborah C.
Saxe, Jones Day, Los Angeles, CA, Laura R. Anderson, Jones Day, Cleveland,
OH, James A. Creason, Creason & Aarvig, Riverside, CA, Larry A. Dunlap,
Creason & Aarvig, Newport Beach, CA, for Defendants.

AMENDED ORDER DENYING MOTION TO DISMISS

[Motion filed on January 14, 2008]

DEAN D. PREGERSON , District Judge.

*1 This matter comes before the Court upon the individual Public Health
Service Defendants' motion to dismiss for lack of subject matter
jurisdiction. After reviewing the materials submitted by the parties and
reviewing the arguments therein, the Court DENIES the motion.FN1

I. LEGAL STANDARD

When reviewing a motion to dismiss, the Court łassum[es] all facts and
inferences in favor of the nonmoving party.˛ Libas Ltd. v. Carillo, 329 F.3d
1128, 1130 (9th Cir.2003). In addition, where, as here, the motion to
dismiss is based upon an alleged lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1), łthe trial court may
rely on affidavits and other evidence submitted in connection with the
motion.˛ Berardinelli v. Castle & Cooke Inc., 587 F.2d 37, 39 (9th
Cir.1978).

II. BACKGROUND

On March 27, 2006, Plaintiff Francisco Castaneda-an immigration
detainee-informed the Immigration and Customs Enforcement (łICE˛) medical
staff at the San Diego Correctional Facility that a lesion on his penis was
becoming painful, growing in size, and exuding discharge. The next day,
Castaneda was examined by Anthony Walker, an ICE Physician's Assistant.
Walker's treatment plan called for a urology consult łASAP˛ and a request
for a biopsy. (Amended Compl. ¶ 37 FN2; Doyle Decl. Ex. 1.)

On April 11, 2006, ICE documented that because of Castaneda's family
history-his mother died of pancreatic cancer at age 39-penile cancer needed
to be ruled out. (Doyle Decl. Ex. 2.) A Treatment Authorization Request
(łTAR˛) was filed with the Division of Immigration Health Services (łDIHS˛),
requesting approval for a biopsy and circumcision. The TAR noted that
Castaneda's penile lesion had grown, that he was experiencing pain at a
level 8 on a scale of 10, and that the lesion had a łfoul odor.˛ (Id. Ex.
3.) By this time, DIHS had determined that certain łpossible infections˛
were not causing the lesion. (Id.) The TAR further urged that, ł[d]ue to
family history and pt [patient] discomfort,˛ a biopsy and łpertinent
surgical f/u [follow up]˛ should be performed the łsooner the better.˛ (Id.)
DIHS approved the TAR, authorizing the biopsy, urology consult, and
łpertinent surgical f/u,˛ on May 31. (Id.)

On June 7, 2006, ICE sent Castaneda for a consult with oncologist John
Wilkinson, M.D. Castaneda presented with a history of a fungating lesion FN3
on his foreskin. (Id. Ex. 4.) Dr. Wilkinson

"agree[d] with the physicians at the [M]etropolitan [C]orrectional Center
that this may represent either a penile cancer or a progressive viral based
lesion. I strongly agree that it requires urgent urologic assessment of
biopsy and definitive treatment. In this extremely delicate area and [sic]
there can be considerable morbidity from even benign lesions which are not
promptly and appropriately treated.... I spoke with the physicians at the
correctional facility. I have offered to admit patient for a urologic
consultation and biopsy. Physicians there wish to pursue outpatient biopsy
which would be more cost effective. They understand the need for urgent
diagnosis and treatment."

*2 (Id. (emphasis added).) On the same day, Defendant Esther Hui, M.D.,
spoke to Dr. Wilkinson. She noted that she was aware that Mr. Castaneda łhas
a penile lesion that needs to be biopsied,˛ and that Dr. Wilkinson had
offered to admit Castaneda and perform this procedure. (Id. Ex. 5.) However,
Dr. Hui explained that DIHS would not admit him to a hospital because DIHS
considered a biopsy to be łan elective outpatient procedure.˛ (Id. (emphasis
added).) Dr. Hui never made arrangements for the outpatient biopsy.

On June 12, 2006, Castaneda filed a grievance asking for the surgery
recommended by Dr. Wilkinson, stating that he was łin a considerable amount
of pain and I am in desperate need of medical attention.˛ (Id. Ex. 6.) This
grievance was denied. DIHS records from June 23 document that Castaneda's
penis was łgetting worse, more swelling to the area, foul odo[r], drainage,
more difficult to urinate, bleeding from the foreskin.˛ (Id. Ex. 7.) DIHS
records from June 30, 2006 state that because Castaneda had not yet had ła
biopsy performed and evaluated in a laboratory,˛ the agency considered him
to łNOT have cancer at this time.˛ (Id. Ex.8.) DIHS acknowledged that łthe
past few months of the lesion [had been] looking and acting a bit more
angry,˛ yet dismissed Castaneda's concerns: łBasically, this pt needs to be
patient and wait.˛ (Id.)

DIHS records from one month later document that the łlesion on his penis is
draining clear, foul malodorous smell, culture[s] before were negative for
growth, negative RPR, negative HIV. [F]oreskin is bleeding at this time and
pt states his colon feels swollen, previous rectal exam showed slightly
swollen prostate, deferred today.˛ (Id. Ex. 9.) Despite Dr. Wilkinson's
emphasis over a month earlier on the need for a biopsy due to the
considerable likelihood of cancer, DIHS claimed to have no idea what could
be causing Castaneda's ailment, noting the łunk[nown] etiology of [his]
penile lesion.˛ (Id. Ex. 9.)

On the same day, a report by Anthony Walker claims that Castaneda łwas not
denied by Dr. Hui any treatment, albeit there was no active Treatment
Authorization Request (TAR) placed for approval by DIHS headquarters in
Washington, DC, nor was there an emergent need.˛ (Id. Ex. 10 (emphasis
added).) Despite the alleged lack of łemergent need,˛ the next day a TAR was
submitted seeking Emergency Room (łER˛) evaluation and in-patient treatment
for Castaneda. There is no explanation for why ICE did not schedule him for
the circumcision and biopsy ordered by Dr. Wilkinson the month before.
However, the TAR did note that Dr. Wilkinson and Dr. Masters, an outside
urologist,

both strongly recommended admission, urology consultation, surgical
intervention via biopsy/exploration under anesthesia to include circumcision
if non-malignant, return f/u with oncology depending upon findings, and
potential treatment or surgery of any malignant findings.... There is now
bleeding, drainage, malodorous smell and the lesion now appears to be
łexploding˛ for lack of better words, definitely macerated. Request for
urology and oncology inpatient eval[uation] and treatment with outpatient
follow-up.
*3 (Id. Ex. 11 (emphasis added).) The TAR was approved. (Id.)

Inexplicably, DIHS failed to arrange for an evaluation with Dr. Wilkinson
and/or Dr. Masters, the treating doctors who were familiar with Castaneda's
condition and who, indeed, had offered to continue treating him. Instead,
DIHS brought Castaneda to the ER at Scripps Mercy Chula Vista on July 13,
2006. There, Dr. Juan Tovar, M.D., who examined Castaneda, documented the
existence of a 1.5cm by 2cm łfungating lesion with slight clearish
discharge.˛ (Id. Ex. 12.) Dr. Tovar made arrangements for Castaneda to be
admitted to the hospital; his impression was that Castaneda had a łpenile
mass˛ and that there was a need to łrule out cancer, versus infectious
etiology.˛ (Id.)

Once admitted, yet another doctor unfamiliar with Castaneda's history, Dr.
Daniel Hunting, M.D., performed a brief examination the same day, but did
not do the biopsy needed to rule out cancer. Instead, Dr. Hunting guessed
that the problem was condyloma, commonly known as genital warts. (Id. Ex.
13.) There is no evidence from his report that Dr. Hunting asked about or
was aware of Castaneda's family history of cancer. Dr. Hunting then referred
Castaneda back to his łprimary treating urologist,˛ dismissed his symptoms
as łnot an urgent problem,˛ and discharged him from the hospital. (Id.)

Four days later, Castaneda's condition was worsening. DIHS documented that
the lesion was still łgrowing,˛ and that Castaneda had łsevere phimosis, FN4
bleeding, and clear drainage for lesion area with foul odor.˛ (Id. Ex. 14.)
The DIHS record notes that both Dr. Masters and Dr. Wilkinson łstrongly
recommended˛ admission to a hospital, biopsy, and circumcision. (Id.)
Instead, DIHS followed the suggestion of Dr. Hunting-who had only briefly
examined Castaneda in the ER-and assumed Castaneda had genital warts. DIHS
therefore declined to order a biopsy, although it nonetheless noted
Castaneda would łneed a resection FN5 of the penis˛ due to the severity of
his condition. (Id.)

On July 26, 2006, DIHS acknowledged that Castaneda łcomplains that he is
being denied a needed surgery to his foreskin.˛ (Id. Ex. 16.) ICE told
Castaneda, however, that łwhile 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.˛ (Id.) On August 9, DIHS again noted Plaintiff's łinflamed
foreskin,˛ but denied his request for a circumcision, claiming that
łsurgical removal, at the current time, would be considered elective
surgery; that as such the Federal Government will not provide for such
surgery.˛ (Id. Ex. 17.)

On August 11, 2006, Walker submitted a TAR requesting a biopsy and
circumcision by Dr. Masters, the outside urologist. (Id. Ex. 18.) Dr.
Masters examined Castaneda on August 22. Dr. Masters thought Castaneda might
have genital warts, but noted Castaneda's family history of cancer and that
Dr. Wilkinson had recommended a łdiagnostic biopsy˛ to rule out cancer. (Id.
19.) Therefore, Dr. Masters recommended circumcision, which would at once
relieve the łongoing medical side effects of the lesion including infection
and bleeding˛ and łprovide a biopsy.˛ (Id.) Dr. Masters told DIHS that łwe
will arrange for admission for circumcision at a local hospital. My
principal hospital is Sharp Memorial.˛ (Id.)

*4 In spite of this unequivocal recommendation, Walker characterized Dr.
Masters as stating that łelective procedures this patient may need in the
future are cytoscopy and circumcision.˛ (Id. Ex. 20.) The word łelective˛
does not appear in Dr. Masters's report. DIHS denied the request for a
circumcision. (Id.) On August 24, 2006, DIHS told Castaneda that, łaccording
to policy,˛ surgery was denied because it was łelective.˛ (Id. Ex. 21.) On
August 26 and 28, Castaneda was seen by medical staff because of łcomplaints
of stressful situation regarding medical status, unable to sleep at night;
states that ICE won't allow surgical operation for lesion on penis.˛ (Id.
Ex. 22.) ICE was thus aware that Castaneda's łstress is due to a chronic
medical problem which the CCA has refused to have corrected as it is
considered to be elective surgery.˛ (Id.) Castaneda was prescribed an
antihistamine as treatment. (Id.)

On August 30, 2006, ICE sent Castaneda a letter:

This is to inform that the off-site specialist you were referred to for your
medical condition reports that any surgical intervention for the condition
would be elective in nature. An independent review by our medical team is in
agreement with the specialist's assessment. The care you are currently
receiving is necessary, appropriate, and in accordance with our policies.

(Id. Ex. 23.) As noted, Dr. Wilkinson's and Dr. Masters's reports do not in
fact state that the recommended biopsy and circumcision would be elective.
On the contrary, Castaneda's treating doctors, as discussed, both noted the
urgency of the situation and made efforts to see Castaneda treated as
quickly as possible.

On September 8, 2006, Castaneda complained: łI have a lot [sic] pain and I'm
having discharge.˛ (Id. Ex. 24.) ICE noted that Castaneda's current
treatment was Ibuprofen (800mg), which was having łno effect˛ on his pain;
Castaneda was having łwhite discharge at night,˛ and he worried that łIt's
getting worse. It's like genital warts, but they're getting bigger.˛ (Id.)
By October 17, 2006, ICE medical staff was aware that Castaneda was bleeding
from his penis; one officer łsaw some dried blood on his boxers.˛ (Id. Ex.
26.) On October 23, Walker submitted a TAR for surgery, but it was denied on
October 26 because łcircumcisions are not a covered benefit.˛ (Id. Ex.
27-28.)

In the October 26 denial report, Defendant Claudia Mazur, a DIHS nurse,
stated that łPt has been seen by local urologist and oncologist and both are
not impressed of possible cancerous lesion(s), however, there is an elective
component to having the circumcision completed.˛ (Id. Ex. 28.) This
conclusion directly contradicts the July 13 TAR, which documented that Drs.
Wilkinson and Masters both łstrongly recommended... surgical intervention
via biopsy/exploration˛ to rule out cancer. (Id. Ex. 4, 11, 19.) The TAR
also documented that Castaneda łis not able to be released to seek further
care due to mandatory hold and according to ICE authorities, may be with
this facility for quite awhile.˛ (Id. Ex. 28.) This document thus suggests
ICE officials knew that Castaneda would be unable to receive treatment in
the foreseeable future.

*5 DIHS noted that Castaneda's symptoms łhave worsened˛ on November 9. (Id.
Ex. 29.) Castaneda reported ła constant pinching pain, especially at night.
States he constantly has blood and discharge on his shorts. [Castaneda
stated] it's getting worse, and I don't even have any meds-nothing for pain
and no antibiotics.˛ (Id.) Castaneda also łcomplains of a swollen rectum
which he states make bowel movements hard.˛ (Id.) Castaneda was told that
the łTAR was in place for surgery and is pending approval.˛ (Id.) Yet the
surgery was not provided.

Instead, on November 14 and 15, DIHS documented that Castaneda łcomplains of
new, 2nd penile lesion on underside, distal penis.˛ (Id. Ex. 30.) ICE noted
that Castaneda was concerned łthat his lesion Śis growingą ł and that it is
łmoist,˛ that łhe cannot stand and urinate because the urine Śsprays
everywhereą and he cannot direct the stream.˛ (Id.) DIHS treated this
condition by making a request for seven pairs of clean boxer shorts weekly.
(Id.)

In early December, Castaneda was transferred to the San Pedro Service
Processing Center. (Jawetz Decl. Ex. 1.) ACLU lawyers began to advocate on
his behalf. On December 5, 2006, the ACLU sent a letter to multiple ICE
officials, including Defendants Chris Henneford, Stephen Gonsalves, and
George Molinar. The letter stated, in part, that łMr. Castaneda, who has a
strong family history of cancer, legitimately fears that his long term
health is being jeopardized by the lack of appropriate medical care he
continues to receive in ICE custody. In the short term, Mr. Castaneda
continues to experience severe pain, bleeding, and discharge.˛ (Id.) The
letter requested medical treatment for Castaneda.

Also on December 5, a TAR was filed seeking consultation with Lawrence
Greenburg, M.D., because of a łhistory of severe HPV infection causing
large, painful, penile warts, has bleeding and pain from the lesions. May
also have an underlying structural deformity of penis.˛ (Doyle Decl. Ex.
31.) Dr. Greenberg łalso recommended a circumcision and biopsy.˛ (Jawetz
Decl. Ex. 5.) On January 19, an ACLU attorney faxed another letter to ICE,
requesting medical treatment for Castaneda. (Id.) On January 24, a TAR for a
urology consult with Asghar Askari, M.D. was approved. (Doyle Decl. Ex. 32.)
The next day, Castaneda was seen by Dr. Askari, who diagnosed a fungating
penile lesion that was łmost likely penile cancer˛ and ordered a biopsy.
(Id. Ex. 33.)

On January 29, 2007, the ACLU faxed yet another letter to ICE, urging the
agency to provide Castaneda the care that had been ordered for the past ten
months. (Jawetz Decl. Ex. 6.) According to Plaintiff's complaint, a biopsy
was finally scheduled for early February. However, a few days before the
procedure, Castaneda was abruptly released from ICE custody. Castaneda then
went to the ER of Harbor-UCLA Hospital in Los Angeles on February 8, 2007,
where he was diagnosed with squamous cell carcinoma. His penis was amputated
on Valentines Day, 2007. According to the complaint, Harbor-UCLA confirmed
that Castaneda had metastatic cancer. Castaneda began undergoing
chemotherapy at Harbor-UCLA. (Amended Compl. ¶¶ 104-09.) However, the
treatment was not successful, and on February 16, 2008, Mr. Castaneda
died.FN6

*6 Plaintiff Castaneda brings this lawsuit against, inter alia, the United
States and individual federal officials, arguing that the refusal to provide
Castaneda with a biopsy despite numerous medical orders to do so violated
the United States Constitution.FN7 Plaintiff brings state tort claims
against the United States under the Federal Torts Claims Act (łFTCA˛),FN8
and alleges federal constitutional violations against the individuals
pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (establishing that
victims of a constitutional violation by a federal agent may recover damages
against that federal official in federal court).

The individual Public Health Service (łPHS˛) Defendants now bring this
motion to dismiss for lack of subject matter jurisdiction.FN9 They argue
that the PHS Defendants are absolutely immune from suit, that Plaintiff must
instead bring this claim as an FTCA action against the United States, and
that because the United States has not waived sovereign immunity for claims
of constitutional violations, this action must be dismissed.

III. DISCUSSION

This case presents an unresolved legal question in the Ninth Circuit:
whether § 233(a) of the Public Health Service Act allows Castaneda to assert
Bivens claims against the individual Public Health Service Defendants. The
Court finds that the plain language of the statute dictates that it does.
FN10

A. Bivens Claims are Generally Available to Remedy Eighth Amendment
Violations, and the FTCA is Intended as a Parallel, Rather Than a Substitute
Remedy

A victim of a constitutional violation by a federal agent may bring a Bivens
action to recover damages against the individual in his personal capacity
unless łdefendants demonstrate special factors counseling hesitation in the
absence of affirmative action by Congress˛ or unless łdefendants show that
Congress has provided an alternative remedy which it explicitly declared to
be a substitute for recovery directly under the Constitution and viewed as
equally effective.˛ Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 64
L.Ed.2d 15 (1980) (internal quotation marks omitted). The only question
before the Court is whether Congress has explicitly provided for a
substitute remedy under the circumstances in this case, so as to preclude a
Bivens claim.

The United States Supreme Court has made łcrystal clear˛ that in cases
involving Eighth Amendment claims based on an alleged failure to provide
proper medical care, łCongress views FTCA and Bivens as parallel,
complementary causes of action.˛ Id. at 20. In Carlson, the Court rejected
defendants' argument that the FTCA was intended by Congress to be an
adequate substitute:

"[W]e have here no explicit congressional declaration that persons injured
by federal officers' violations of the Eighth Amendment may not recover
money damages from the agents but must be remitted to another remedy,
equally effective in the view of Congress. Petitioners point to nothing in
the Federal Tort Claims Act (FTCA) or its legislative history to show that
Congress meant to pre-empt a Bivens remedy or to create an equally effective
remedy for constitutional violations.
*7 Id. at 19."

According to the Court, ł[f]our additional factors, each suggesting that the
Bivens remedy is more effective than the FTCA remedy, also support our
conclusion that Congress did not intend to limit [the aggrieved individual]
to an FTCA action.˛ Id. at 20-21. First, the threat of a Bivens claim
provides stronger deterrence against future constitutional violations than
an FTCA action because only the former remedy łis recoverable against
individuals,˛ and ł[i]t is almost axiomatic that the threat of damages has a
deterrent effect, surely particularly so when the individual official faces
personal financial liability.˛ Id. at 21 (internal citations omitted).

Second, and relatedly, punitive damages are available in a Bivens action,
but are łstatutorily prohibited˛ in an FTCA suit, see 28 U.S.C. § 2674, so
the łFTCA is that much less effective than a Bivens action as a deterrent to
unconstitutional acts.˛ Id. at 22. Moreover, because 42 U.S.C. § 1983-the
counterpart to Bivens actions for constitutional violations by state
officials-allows for punitive damages, łthe constitutional design would be
stood on its head if federal officials did not face at least the same
liability as state officials guilty of the same constitutional
transgression.˛ Id. (internal quotation marks omitted).

Third, Bivens actions are more effective in this context because FTCA
actions do not allow for jury trials. The Court found łsignificant[ ]˛ that
plaintiffs should be able to retain the choice between courts and juries.
Id. Fourth, and finally,

"an action under FTCA exists only if the State in which the alleged
misconduct occurred would permit a cause of action for that misconduct to go
forward. 28 U.S.C. § 1346(b) (United States liable łin accordance with the
law of the place where the act or omission occurred˛). Yet it is obvious
that the liability of federal officials for violations of citizens'
constitutional rights should be governed by uniform rules.... The question
whether respondent's action for violations by federal officials of federal
constitutional rights should be left to the vagaries of the laws of the
several States admits of only a negative answer in the absence of a contrary
congressional resolution."
Id. at 23. For all of the above reasons, the Court held that ł[p]lainly FTCA
is not a sufficient protector of the citizens' constitutional rights, and
without a clear congressional mandate we cannot hold that Congress relegated
respondent exclusively to the FTCA remedy.˛ Id.

Since the Court's opinion in Carlson, Congress has amended the FTCA to
expressly preserve parallel Bivens actions against federal employees. In
1988, it passed the Federal Employees Liability and Tort Compensation Act,
which, inter alia, provided the the FTCA will be the łexclusive˛ remedy łof
any other civil action or proceeding for money damages... against [a
federal] employee.˛ 28 U.S.C. § 2679(b)(1). However, the Act then explains
that this exclusivity łdoes not extend or apply to a civil action against an
employee of the Government... which is brought for a violation of the
Constitution of the United States.˛ Id. § 2679(b)(2)(A).

B. Both the Plain Language and the Legislative History of § 233(a) Evince a
Congressional Intent to Preserve Bivens Actions

*8 Defendants acknowledge that in general, victims of constitutional
violations may proceed with both FTCA and Bivens claims. They nonetheless
urge that as to the Public Health Service Defendants specifically, Congress
has expressed an explicit intent, through the Public Health Service Act, to
limit plaintiffs to an FTCA remedy. The Court disagrees.

Whether the Public Health Service Act evinces an intent to limit Mr.
Castaneda's remedies against PHS Defendants for any constitutional
violations to an FTCA claim is a question of statutory interpretation. When
interpreting a statute, courts łlook first to the plain language of the
statute, construing the provisions of the entire law.˛ Nw. Forest Resource
Council v. Glickman, 82 F.3d 825, 831 (9th Cir.1996) (internal quotation
marks omitted). After that, łif the language of the statute is unclear, we
look to the legislative history.˛ Id. (internal quotation marks omitted). In
this case, both the text and legislative history reveal an explicit intent
to allow Bivens claims.

1. Plain Language
The pertinent provision of the Public Health Service Act, § 233(a), FN11
reads in its entirety as follows:

DEFENSE OF CERTAIN MALPRACTICE AND NEGLIGENCE ACTS

Sec. 223.(a) The remedy against the United States provided by sections
1346(b) and 2672 of title 28 [the FTCA], or by alternative benefits provided
by the United States where the availability of such benefits precludes a
remedy under section 1346(b) of title 28, for damage for personal injury,
including death, resulting from the performance of medical, surgical,
dental, or related functions, including the conduct of clinical studies or
investigation, by any commissioned officer or employee of the Public Health
Service while acting within the scope of his office or employment, shall be
exclusive of any other civil action or proceeding by reason of the same
subject-matter against the officer or employee (or his estate) whose act or
omission gave rise to the claim.

Emergency Health Personnel Act of 1970, Pub.L. No. 91-623, § 223(a), 84
Stat. 1868, 1870 (1970). From this provision, it is clear that Congress
intended some medical injuries caused by PHS employees to be redressable
solely through the FTCA. The question is whether the provision applies to
allegations of constitutional violations. Congress has expressly indicated
that it does not.
At first glance, it may appear that § 233(a) does not address one way or
another whether Congress intended constitutional claims to come under its
rubric. Upon following the statutory trail, however, it turns out that
Congress has in fact explicitly answered the question presented by this
case.

Subsection 233(a) declares that ł[t]he remedy against the United States
provided by sections 1346(b) and 2672 of title 28,... shall be exclusive.˛
The two sections mentioned-1346(b) and 2672-are part of the FTCA. The
latter-entitled łAdministrative Adjustment of Claims˛-deals with how a
federal agency may manage the claims against it, and is not relevant for our
purposes. Subsection 1346(b), however, is more instructive:

*9 "b)(1) Subject to the provisions of chapter 171 of this title, the
district courts, together with the United States District Court for the
District of the Canal Zone and the District Court of the Virgin Islands,
shall have exclusive jurisdiction of civil actions on claims against the
United States, for money damages, accruing on and after January 1, 1945, for
injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where the act or
omission occurred."

28 U.S.C. § 1346(b)(emphasis added).

One little clause, almost invisible, should attract our attention: łSubject
to the provisions of chapter 171 of this title.˛ This is the kind of clause
that is often ignored, on the assumption that it is probably not relevant.
But let us see what chapter 171 says, just in case:

CHAPTER 171-TORT CLAIMS PROCEDURE
28 USCA Pt. VI, Ch. 171, Refs & Annos
§ 2671. Definitions
§ 2672. Administrative adjustment of claims
§ 2673. Reports to Congress
§ 2674. Liability of United States
§ 2675. Disposition by federal agency as prerequisite; evidence
§ 2676. Judgement as bar
§ 2677. Compromise
§ 2678. Attorney fees; penalty
§ 2679. Exclusiveness of remedy
§ 2680. Exceptions

The statutory provision that is the central focus of this motion to dismiss-
§ 233(a)-thus explicitly incorporates by reference 28 U.S.C. § 2679.
Subsection 2679(b) is dispositive here:

"(b)(1) The remedy against the United States provided by sections 1346(b)
and 2672 of this title for injury or loss of property, or personal injury or
death arising or resulting from the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his office
or employment is exclusive of any other civil action or proceeding for money
damages by reason of the same subject matter against the employee whose act
or omission gave rise to the claim or against the estate of such employee.
Any other civil action or proceeding for money damages arising out of or
relating to the same subject matter against the employee or the employee's
estate is precluded without regard to when the act or omission occurred.
(2) Paragraph (1) does not extend or apply to a civil action against an
employee of the Government-
(A) which is brought for a violation of the Constitution of the United
States."

28 U.S.C. § 2679 (emphasis added). Therefore, § 233(a) incorporates the
provision of the FTCA which explicitly preserves a plaintiff's right to
bring a Bivens action. Stated differently, far from evincing the explicit
intent required by Carlson that Congress intended to preclude Bivens claims,
the plain language of § 233(a) unambiguously states the opposite:

*10 "The [exclusive] remedy against the United States provided by sections
1346(b) and 2672 of title 28... for damage for personal injury, including
death, resulting from the performance of medical... or related functions...
by any commissioned officer or employee of the Public Health Service... does
not extend or apply to a civil action... which is brought for a violation of
the Constitution of the United States."

42 U.S.C. § 233(a); 28 U.S.C. § 2679(b).

The United States Supreme Court, in interpreting a provision similar to §
233(a), has confirmed that the łthe FTCA is not the exclusive remedy for
torts committed by Government employees in the scope of their employment
when an injured plaintiff brings: (1) a Bivens action.˛ United States v.
Smith, 499 U.S. 160, 166-67, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991); see
also Billings v. United States, 57 F.3d 797, 800 (9th Cir.1995) (noting that
łconstitutional claims are outside the purview of the Federal Tort Claims
Act˛). Smith dealt with the Gonzales Act, which has a provision worded
almost identically to § 233(a):

§ 1089. Defense of certain suits arising out of medical malpractice

(a) The remedy against the United States provided by sections 1346(b) and
2672 of title 28 for damages for personal injury, including death, caused by
the negligent or wrongful act or omission of any physician, dentist, nurse,
pharmacist, or paramedical or other supporting personnel (including medical
and dental technicians, nursing assistants, and therapists) of the armed
forces, the National Guard while engaged in training or duty..., the
Department of Defense, the Armed Forces Retirement Home, or the Central
Intelligence Agency in the performance of medical, dental, or related health
care functions (including clinical studies and investigations) while acting
within the scope of his duties or employment therein or therefor shall
hereafter be exclusive of any other civil action or proceeding by reason of
the same subject matter against such physician, dentist, nurse, pharmacist,
or paramedical or other supporting personnel (or the estate of such person)
whose act or omission gave rise to such action or proceeding. This
subsection shall also apply if the physician, dentist, nurse, pharmacist, or
paramedical or other supporting personnel (or the estate of such person)
involved is serving under a personal services contract entered into under
section 1091 of this title.

10. U.S.C. § 1089(a). Both § 1089(a) and § 233(a) address claims for łdamage
for personal injury, including death˛ which result from certain federal
officials involved in the łperformance of medical, dental, or related health
functions.˛ Both subsections incorporate by reference 28 U.S.C. §§ 1346 and
2672 of the FTCA, and explain that the remedy provided by those subsections
łshall be exclusive of any other civil action or proceeding by reason of the
same subject matter.˛ The Supreme Court has acknowledged the FTCA's łexpress
preservation of employee liability˛ for Bivens claims in the context of 10
U.S.C. § 1089. Smith, 499 U.S. at 166-67. Like 10 U.S.C. § 1089, § 233(a) of
the Public Health Service Act incorporates the FTCA as an exclusive remedy,
and like 10 U.S.C. § 1089, § 233(a) incorporates that remedy's express
preservation of employee liability for Bivens claims.

*11 Defendants rely heavily upon the Second Circuit's opinion in Cuoco v.
Moritsugu, 222 F.3d 99, 107 (2d Cir.2000), which held that the plain
language of § 233(a) precluded Bivens actions. Although Cuoco cites §
233(a), and its incorporation of the FTCA remedy, it appears that the court,
for whatever reason, was not aware of what the FTCA remedy in fact
consisted. If the Second Circuit had followed the statutory trail back to 28
U.S.C. § 2679, this Court can only opine that Cuoco would have adhered to
the statutory mandate preserving Bivens claims. This Court therefore
respectfully requests that the Second Circuit, as well as the several other
courts that have followed Cuoco, reconsider their holdings. See, e.g.,
Anderson v. Bureau of Prisons, 176 F. App'x 242, 243 (3d Cir.2006)
(unpublished); Lyons v. United States, No. 4:03CV1620, 2008 WL 141576, at
*12 n. 5 (Jan. 11, 2008) (unpublished); Lee v. Guavara, C/A/ No. 9:06-1947,
2007 WL 2792183, at *14 (D.S.C. Sept.24, 2007) (unpublished); Fourstar v.
Vidrine, No. 1:06-cv-916, 2007 WL 2781894, at *4 (S.D.Ind. Sept.21, 2007);
Hodge v. United States, No. 3:06cv1622, 2007 WL 2571938, at *4-5 (M.D.Pa.
Aug.31, 2007) (unpublished); Coley v. Sulayman, Civ. Action No. 06-3762,
2007 WL 2306726, at *4-5 (D.N.J. Aug.7, 2007) (unpublished); Wallace v.
Dawson, No. 9:05CV1086, 2007 WL 274757, at *4 (N.D.N.Y. Jan.29, 2007)
(unpublished); Barbaro v. U.S.A., No. 05 Civ. 6998, 2006 WL 3161647, at *1
(S.D.N.Y. Oct.30, 2006) (unpublished); Williams v. Stepp, No. 03-cv-0824,
2006 WL 2724917, at *3-4 (S.D.Ill. Sept.21, 2006) (unpublished); Cuco v.
Fed. Medical Center-Lexington, No. 05-CV-232, 2006 WL 1635668, at *20 (E.D.
Ky. June 9, 2006) (unpublished); Arrington v. Inch, No. 1:05-CV-0245, 2006
WL 860961, at *5 (M.D.Pa. March 30, 2006) (unpublished); Foreman v. Fed.
Corr. Inst., No. CIV A 504-CV-01260, 2006 WL 4537211, at *8 (S.D.W.Va. March
29, 2006) (unpublished); Pimentel v. Deboo, 411 F.Supp.2d 118, 126-27
(D.Conn.2006); Whooten v. Bussanich, No. Civ. 4:CV-04-223, 2005 WL 2130016,
at *3 (M.D.Pa. Sept.2, 2005) (unpublished); Freeman v. Inch, No.
3:04-CV-1546, 2005 WL 1154407, at *2 (M.D.Pa. May 16, 2005) (unpublished);
Dawson v. Williams, No. 04 Civ. 1834, 2005 WL 475587, at *8 (S.D.N.Y.
Feb.28, 2005) (unpublished); Lovell v. Cayuqa Corr. Facility, No.
02-CV-6640L, 2004 WL 2202624, at *2 (W.D.N.Y. Sept.29, 2004) (unpublished);
Valdivia v. Hannefed, No. 02-CV-0424, 2004 WL 1811398, at *4 (W.D.N.Y. Aug.
10, 2004) (unpublished); Cook v. Blair, No. 5:02-CT-609, 2003 WL 23857310,
at *1 (E.D.N.C. March 21, 2003) (unpublished); Brown v. McElroy, 160
F.Supp.2d 699, 703 (S.D.N.Y.2001).

The Supreme Court did not rely in Carlson on the express FTCA language
preserving Bivens remedies because that language was added to the FTCA in
1988-eight years after Carlson-as part of the Federal Employees Liability
Reform and Tort Compensation Act. In effect, the 1988 amendment codified the
holding in Carlson and made explicit the fact that Congress did not intend
for the FTCA to preempt Bivens claims. Therefore, any ambiguity that may
have existed prior to the 1988 amendment has long been extinguished.
Frankly, the Court is surprised that neither the parties in this case, nor
the Second Circuit in Cuoco, nor the many courts that have followed Cuoco
without analysis, have noticed that the FTCA explicitly preserves the right
to bring Bivens claims. Therefore, according to the plain text of § 233(a),
Public Health Service officials are immune from suit under the circumstances
provided by the FTCA, which does not include claims for constitutional
violations; the PHS Defendants are therefore not entitled to immunity in
this case.

2. Legislative History

*12 The plain text ends the inquiry. The Court is compelled to follow the
direct expression of intent in § 233(a). Period. Cf. U.S. ex rel. Lujan v.
Hughes Aircraft Co., 243 F.3d 1181, 1187 (9th Cir.2001) (łIf the statute is
ambiguous, we consider the legislative history.˛). It is useful nevertheless
to note that the legislative history in this case is equally direct. The
relevant materials provide context for what Congress envisioned by
preserving Bivens claims, and make clear that not only did Congress intend
to preserve the Bivens remedy, but it intended to do so specifically in the
context of § 233(a).

a. Congress Intended to Preserve Bivens Because of the Difference Between
Claims for Malpractice and Claims for Constitutional Violations

A 1988 House Committee Report of the 1988 amendment to the FTCA stated the
following:

The second major feature of section 5 [codified at 28 U.S.C. § 2679(b)(2)(A)
] is that the exclusive remedy expressly does not extend to so-called
constitutional torts. See Bivens v. Six Unknown Agents of the Federal Bureau
of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Courts
have drawn a sharp distinction between common law torts and constitutional
or Bivens torts. Common law torts are the routine acts or omissions which
occur daily in the course of business and which have been redressed in an
evolving manner by courts for, at least, the last 800 years.... As used in
H.R. 4612, the term Ścommon law tortą embraces not only those state law
causes of action predicated on the Ścommoną or case law of the various
states, but also encompasses traditional tort causes of action codified in
state statutes that permit recovery for acts of negligence. A good example
of such codification or tort causes of action are state wrongful death
actions which are predominantly found upon state wrongful death statutes. It
is well established that the FTCA applies to such codified torts. See, e.g.,
Richards v. United States, 369 U.S. 1, 6-7, 82 S.Ct. 585, 7 L.Ed.2d 492
(1962); Proud v. United States, 723 F.2d 705, 706-07 (9th Cir.1984), cert.
denied, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984) applicability
of recreational use statute). A constitutional tort action, on the other
hand, is a vehicle by which an individual may redress an alleged violation
of one or more fundamental rights embraced in the Constitution. Since the
Supreme Court's decision in Bivens, supra, the courts have identified this
type of tort as a more serious intrusion of the rights of an individual that
merits special attention. Consequently, H.R. 4612 would not affect the
ability of victims of constitutional torts to seek personal redress from
Federal employees who allegedly violate their Constitutional rights.

H.R. Rep. 100-700 (1988), as reprinted in 1988 U.S.C.C.A.N. 5945, 5950
(emphasis added). Thus, Congress could not have been clearer that 28 U.S.C.
§ 2679, which is incorporated by reference into § 233(a), was intended to
preserve, not preclude, Bivens actions to redress constitutional violations.
This congressional statement is particularly persuasive because, as
legislative history goes, committee reports are given great weight. See
Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 687 (9th Cir.2006).

*13 It is not surprising that Congress, in preserving Bivens liability,
emphasized the difference between constitutional torts and garden-variety
malpractice claims, for the distinction is longstanding and important. To
establish an Eighth Amendment violation for inadequate medical care a
plaintiff must show łdeliberate indifference to [his] serious medical
needs.˛ Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976). Such deliberate indifference may łmanifest[ ]˛ itself through the
intentional denial or delay of care or an intentional interference łwith the
treatment once prescribed.˛ Id. at 104-05. However, neither an accident, an
łinadvertent failure to provide adequate medical care,˛ nor łnegligen[ce] in
diagnosing or treating a medical condition,˛ though each may be medical
malpractice, is cognizable as a federal constitutional claim. Id. at 105-06.
In short, a constitutional violation is an intentional tort-a higher
standard than a negligence suit for medical malpractice based on a personal
injury.

Even the legislative history from § 233(a) itself-expressed eighteen years
before Congress would amend the FTCA to explicitly preserve Bivens
claims-reveals that Congress intended by § 233(a) to immunize PHS employees
from garden-variety malpractice claims, not from constitutional
violations.FN12

The provision in question was not a part of the original Public Health
Service Act; rather, it was introduced as an amendment in the House during a
congressional debate on December 18, 1970. Representative Staggers, who
introduced the amendment, stated that the House łought to˛ adopt the
amendment so that, łin the event there is a suit against a PHS doctor
alleging malpractice, the Attorney General of the United States would defend
them in whatever suit may arise.˛ 91 Cong. Rec. H42542-32 (daily ed. Dec.
18, 1970) (emphasis added). Representative Staggers emphasized that the
amendment was łneeded because of the low salaries that [PHS doctors] receive
and in view of their low salaries, they cannot afford to take out the
insurance to cover them in the ordinary course of their practice of
medicine.˛ Id. (emphasis added). Representative Hall supported the amendment
but urged the committee to łlook [ ]into the general problem in the United
States of malpractice insurance.˛ Id. The House approved the amendment. In
context, then, the amendment obviously stemmed from concerns over liability
for unintentional malpractice, not from attempts to avoid responsibility for
the kind of intentional torts that would support a constitutional violation.

The only mention of the amendment in the Senate occurred three days later,
when Senator Javitz expressed his support for łthe provision for the defense
of certain malpractice and negligence suits˛ which would protect doctors łin
the event there is a suit against a PHS doctor alleging malpractice.˛ 91
Cong. Rec. S42977 (daily ed. Dec. 21, 1970). Aside from these instances, the
amendment, as far as the Court can tell, was never mentioned. Thus, even
before the 1988 FTCA amendment, far from revealing an intent to immunize PHS
doctors from intentional torts, the legislative history of § 233(a) shows
that the amendment was clearly intended to protect PHS doctors from ordinary
medical malpractice actions.FN13

b. Congress Intended to Preserve Bivens in the Specific Context of § 233(a)

*14 The legislative history of the 1988 amendment to the FTCA reveals not
only that Congress intended to preserve Bivens claims, but that it so
intended specifically with respect to § 233(a). Some statutory context is in
order.

This 1988 FTCA amendment-28 U.S.C. § 2679-renders the FTCA the exclusive
remedy for all civil actions (except, inter alia, Bivens claims) against all
federal employees. The legislative history to 28 U.S.C. § 2679 explains that
the intention of the provision was to łremove the potential personal
liability of Federal employees for common law torts committed within the
scope of their employment, and would instead provide that the exclusive
remedy for such torts is through an action against the United States under
the Federal Tort Claims Act.˛ H.R. Rep. 100-700, 1988 U.S.C.C.A.N, at 5947.
In the same House Report in which it articulated its reasons for preserving
Bivens actions, Congress explained that it felt comfortable awarding such a
broad swath of immunity because

"[t]here is substantial precedent for providing an exclusive remedy against
the United States for actions of Federal employees. Such an exclusive remedy
has already been enacted to cover the activities of certain Federal
employees, including:... 42 U.S.C. 233 regarding Public Health Service
Physicians.˛

Id. at 5948. In other words, 28 U.S.C. § 2679 provided the same immunity as
§ 233(a), but extended that immunity to all federal employees. After the
1988 passage of 28 U.S.C. § 2679, all federal employees-not just certain
specified federal employees such as PHS officials-are covered. See Smith,
499 U.S. at 172-73 (holding that the Federal Employees Liability Reform and
Tort Compensation Act, including § 2679, applies both to łemployees who are
covered under pre-Act immunity statutes [such as § 233(a) ] and those who
are not,˛ and noting that this immunity is limited by the łpreserv[ation] of
employee liability for Bivens actions˛).

Congress was aware of § 233(a) when it expanded immunity to all federal
employees. Indeed, provisions like § 233(a) provided the example and
incentive to so broaden that immunity. At the same time, Congress made clear
that this immunity was intended to cover łroutine˛ torts, and that a
plaintiff whose constitutional rights had been violated remained free to
pursue a Bivens claim against the individual federal employee in question.
H.R. Rep. 100-700, 1988 U.S.C.C.A.N, at 5947. In light of the explicit
statutory text and legislative history, there can be no doubt that the
FTCA-and § 233(a), which incorporates the FTCA's remedies by
reference-expressly allows for the Bivens claim that Mr. Castaneda seeks to
bring in this case.

C. Plaintiff's Allegations and Evidence, if True, Prove Constitutional
Violations

Ultimately, Defendants concede that an Eighth Amendment claim for
unconstitutionally-inadequate medical care is not subsumed by a claim for
medical malpractice; instead, they urge that Plaintiff's claims just don't
make the constitutional cut, so to speak. As Defendants put it, ł[t]he
bottom line is that Plaintiff's claims form the basis for a medical
malpractice action (a non-constitutional tort claim) against the United
States, and not a Bivens claim against each Public Health Service
Defendant.˛ (Mot.8.) Defendants acknowledge that Plaintiff's complaint
alleges that the Public Health Service Defendants ł Śpurposefully denied him
basic and humane medical care for illegal and improper reasons,ą ł but posit
that ł[t]his vague and conclusory allegation fails to state any civil rights
violation.˛ (Id. 6. (quoting Compl.).) The Court rejects Defendants' attempt
to sidestep responsibility for what appears to be, if the evidence holds up,
one of the most, if not the most, egregious Eighth Amendment violations the
Court has ever encountered.

*15 There simply can be no dispute that Plaintiff has stated a cognizable
claim for an Eighth Amendment violation. Mr. Castaneda quite obviously
suffered from a serious medical condition-terminal penile cancer. The only
question is whether his allegations, if true, show that Defendants were
deliberately indifferent to his condition. The Court finds that they do.

Indeed, the Court finds perplexing the fact that Defendants would try to
argue that Plaintiff's allegations are conclusory, given that Plaintiff has
submitted thirty-three exhibits of Defendants' own official medical records
documenting their knowledge of the fact that several physicians had
concluded that Plaintiff's lesion was very likely penile cancer, and that he
needed a biopsy-a straightforward procedure-to rule cancer out. These
documents show that nevertheless, Defendants refused to grant Plaintiff this
simple procedure for almost eleven months, even while they noted that his
pain and suffering were severe and increasing, that his penis was emitting
blood and discharge, and that a second growth had developed.

Therefore, if Plaintiff's evidence proves true, from the first time
Castaneda presented with a suspicious lesion in March 2006 through his
release in February 2007, the care afforded him by Defendants can be
characterized by one word: nothing. The evidence that Plaintiff has already
produced at this early stage in the litigation is more thorough and
compelling than the complete evidence compiled in some meritorious Eighth
Amendment actions. Defendants will surely have an opportunity to contest or
refute the evidence presented. But their assertion that Plaintiff's claim is
not even cognizable is, frankly, frivolous.

D. FTCA Remedy is Not Equally Effective as a Bivens Action

The circumstances of this case illustrate why, as the Supreme Court
concluded in Carlson, FTCA claims against the United States are not as
effective a remedy as a Bivens claim against individual federal officials.
First, and most importantly, as Defendants acknowledge, Plaintiff Castaneda
may not bring his constitutional claims for inadequate medical care against
the United States under the FTCA because the United States has not waived
sovereign immunity to be sued for constitutional torts. See F.D.I.C. v.
Meyer, 510 U.S. 471, 478-480, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). It
would turn logic on its head to hold that the FTCA is an łequally effective˛
remedy for constitutional violations as a Bivens action, Carlson, 446. U.S.
at 19, when suits under the FTCA do not even allow for constitutional
claims. See Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir.1996) (holding that
prisoner plaintiff did not have to serve the United States as a defendant in
his Bivens claim for inadequate medical care ł[b]ecause [plaintiff] did not
and could not have sued the United States or its officers in their official
capacity upon a Bivens claim˛). FN14

Indeed, Defendants' contorted reasoning is revealed by its request for
relief in this motion: Defendants ask this Court to hold that Congress,
through § 233(a), intended the FTCA to be the exclusive cause of action for
Castaneda's constitutional claims, and then, having thus converted the claim
to an FTCA action against the United States, Defendants seek dismissal on
the grounds that the United States may not be sued for constitutional torts
under the FTCA. The Court will not indulge this backwards argument.

*16 Second, an FTCA action is only allowed to the extent it would be allowed
under state law. 28 U.S.C. § 1346(b). California caps non-economic damages
in medical malpractice actions at $250,000. See Cal. Civ.Code § 3333.2. In
contrast, there is no cap on damages in Bivens actions. Plaintiff has a
strong argument that $250,000 would be inadequate to compensate his łten
months of pain, bleeding, anxiety, loss of sleep, and humiliation while in
ICE's custody, the amputation of his penis, and nearly a year of grueling
chemotherapy,˛ not to mention his eventual death. (Opp'n 19.)

Third, FTCA actions, unlike Bivens claims, preclude punitive damages. Yet
the evidence that Plaintiff has presented thus far-through Defendants' own
records-suggests a strong case for punitive damages because it shows that
Defendants' behavior was both callous and misleading. The evidence suggests
that they refused Castaneda's request for a biopsy despite their knowledge
that several medical specialists suspected cancer and łstrongly recommended˛
a biopsy to rule out that possibility. (Doyle Decl. Ex. 11.) Worse, the
evidence suggests that not only did the individual Public Health Service
Defendants ignore doctor recommendations to provide Castaneda with a simple
procedure, they may also have lied about those recommendations.

For example, Defendant Esther Hui, M.D. stated in an official report that
Dr. Wilkinson considered a biopsy or circumcision for Mr. Castaneda to be
łelective.˛ (Id. Ex. 5 (łDr. Wilkinson called˛ and recommended a biopsy,
which is łan elective outpatient procedure˛). Similarly, another official
DIHS report, written by Anthony Walker, claimed that łDr. Masters stated
that elective procedures this patient may need in the future are cytoscopy
and circumcision.˛ (Id. Ex. 20.) Yet the reports of Dr. Masters and Dr.
Wilkinson never mention the word łelective.˛ On the contrary, Dr. Wilkinson
worried that the lesion łmay represent... a penile cancer˛ and łrequire[d]
urgent urologic assessment of biopsy˛ because łeven benign lesions˛ in that
area can be deadly. (Id. Ex. 4.) Dr. Masters stated the need to łrule out
malignant neoplasm˛ and that łappropriate treatment would be circumcision
[and]... a biopsy.˛ (Id. Ex. 19.)

Further, Dr. Hui and the DIHS included this false characterization in
official reports despite the fact that a TAR recognized that both doctors
łstrongly recommend admission, urology consultation, surgical intervention
via biopsy,˛ and despite that fact that Dr. Wilkinson reported that he had
spoken to łthe physicians at the correctional facility˛ and ł[t]hey
understand the need for urgent diagnosis and treatment.˛ (Id. Ex. 11, 4.)
Indeed, Dr. Hui herself recognized in a report that Castaneda might have
cancer but ł[s]ince this is an elective outpatient procedure, we decided
that we would not admit him [to the hospital to have the procedure] at this
time.˛ (Id. Ex. 5.)

*17 Plaintiff's evidence also suggests why Dr. Hui was so interested in
characterizing the surgery as elective; łas such the Federal Government will
not provide for such surgery.˛ FN15 (Id. Ex. 17.) Plaintiff has thus
submitted compelling evidence that Defendants purposefully mischaracterized
Plaintiff's medical conditions as elective in order to refuse him care. Dr.
Wilkinson reported that Defendants refused to admit Castaneda to the
hospital for a biopsy because they wanted a łmore cost effective˛ treatment.
(Id. Ex. 4.) Official records document Defendants' circular logic that
because they would not allow him to have the biopsy, łhe DOES NOT have
cancer at this time˛; because he does not have cancer, he therefore does not
need a biopsy. (Id. Ex. 8.) 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.FN16

IV. CONCLUSION

Based on the foregoing analysis, motion to dismiss is DENIED.

IT IS SO ORDERED.

FN1. The initial order was issued with the Plaintiff's name spelled
incorrectly. Other than that adjustment, this amended order is identical to
the initial order.

FN2. Defendants' motion to dismiss was filed before the Complaint was
amended. However, the Amended Complaint contains no new allegations against
the individual federal defendants and the parties have stipulated that
Defendants' motion is responsive to the Amended Complaint.

FN3. The National Cancer Institute defines a łfungating lesion˛ as: łA
type of skin lesion that is marked by ulcerations (breaks on the skin or
surface of an organ) and necrosis (death of living tissue) and that usually
has a bad smell. This kind of lesion may occur in many types of cancer,
including breast cancer, melanoma, and squamous cell carcinoma, and
especially in advanced disease.˛ See http://www.cancer.g
ov/Templates/dbalpha.aspx?print=1 & cdrid=367427 (last accessed February 17,
2008).

FN4. Phimosis is medically defined as a łtightness or construction of
the orifice of the prepuce arising either congenitally or from inflammation,
congestion, or other postnatal causes and making it impossible to bare the
glans.˛ Merriam Webster's Medical Desk Dictionary 613 (1996). In other
words, the foreskin is so tight it cannot be pulled back completely to
reveal the glans.

FN5. Resection means the surgical removal of part of an organ. Webster's
Medical Desk Dictionary at 697.

FN6. A motion to substitute the representative and heirs of his estate
as the proper parties, as well as to permit the filing of a second amended
complaint, is currently pending before the Court. However, this motion does
not affect the instant motion to dismiss, and the individual federal
defendants-the moving parties in the instant motion-do not oppose the
substitution.

FN7. Plaintiff also brings claims against California state officials.
These claims are not at issue in the instant motion.

FN8. The FTCA makes the federal government liable to the same extent as
a private party for certain torts committed by federal employees acting
within the scope of their employment. 28 U.S.C. § 1346(b)(1).

FN9. These Defendants are Chris Henneford, Eugene Migliaccio, Timothy
Shack, M.D., Esther Hui, M.D., and Stephen Gonsalves.

FN10. Plaintiff brings a Bivens claim alleging a violation of the Fifth
Amendment's Equal Protection Clause as well as his Eighth Amendment claim
for inadequate medical care. Because Defendants do not specifically argue
that Plaintiff's Fifth Amendment claim is also preempted by § 233(a), the
Court does not address the issue, except to note that its conclusion that §
233(a) allows an Eighth Amendment Bivens claim applies equally to any other
Bivens claim.

FN11. The language of Public Law No. 91-623 has not been amended since
enacted on December 31, 1970. However, the 1970 edition of the United States
Code (where this statute first appeared in the Code) renumbered this section
as ł § 233(a).˛ Although the accurate version is § 223(a) of the Public
Health Service Act in the Statutes at Large, the Court will refer to the
section as § 233(a) for ease of reference.

FN12. To the extent that § 233(a) is at all ambiguous (which it is not)
as to whether it immunizes PHS employees from constitutional as well as
malpractice claims, the title of the statutory subsection supports the
Court's conclusion. See Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R. Co.,
331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947) (noting that łthe
title of a statute and the heading of a section˛ may be used ł[f]or
interpretive purposes... when they shed light on some ambiguous word or
phrase˛). In this case, the title of the relevant section, łDEFENSE OF
CERTAIN MALPRACTICE AND NEGLIGENCE ACTS,˛ clearly indicates that Congress,
even before it amended the FTCA expressly to preserve Bivens claims,
intended § 233(a) to apply to malpractice and negligence actions
specifically. Far from suggesting that the subsection covers constitutional
claims, then, the title shows that Congress meant by this section to offer
immunity for certain specific claims, and that those claims did not include
intentional (constitutional) torts.When the statute was codified in the
United States Code at 42 U.S.C. § 233(a), the title of the subsection was
changed-without any congressional amendment-from łDEFENSE OF CERTAIN
MALPRACTICE AND NEGLIGENCE ACTS˛ to łExclusiveness of Remedy.˛ Compare
Emergency Health Personnel Act of 1970, Pub.L. No. 91-623, § 223(a), 84
Stat. 1868, 1870 (1970) with 42 U.S.C. § 233(a)(1970). To the extent that
the subsection is ambiguous, its title affects its meaning. In the context
of łDEFENSE OF CERTAIN MALPRACTICE AND NEGLIGENCE ACTS,˛ the grant of
immunity obviously refers to malpractice and negligence actions; by
contrast, in the context of łExclusiveness of Remedy,˛ the text could apply
in a much broader fashion.Nevertheless, there is no doubt about which
version the Court must follow. łThough the appearance of a provision in the
current edition of the United States Code is Śprima facieą evidence that the
provision has the force of law,... it is the Statutes at Large that provides
the Ślegal evidence of laws.ą ł U.S. Nat'l Bank of Or. v. Indep. Ins. Agents
of Am., Inc., 508 U.S. 439, 449, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). As
łthe Code cannot prevail over the Statutes at Large when the two are
inconsistent,˛ United States v. Welden, 377 U.S. 95, 98 n. 4, 84 S.Ct. 1082,
12 L.Ed.2d 152 (1964), the Court will consider only the original version
entitled łDEFENSE OF CERTAIN MALPRACTICE AND NEGLIGENCE ACTS,˛ and with it
that title's effect on the scope of the provision.

FN13. Such a distinction makes sense. Protecting low-paid Public Health
Service doctors from astronomical malpractice insurance premiums due to
run-of-the-mill personal injury claims is a reasonable, practical endeavor.
Protecting individuals who intentionally inflict cruel and unusual
punishment just because they happen to work for the Public Health Service is
not. Would an individual who purposefully subjected a patient to surgery
without anesthesia deserve immunity? A civilized society can answer this
question only in the negative.

FN14. Defendants rely primarily on the Second Circuit's decision in
Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir.2000), for the proposition that §
233(a) was intended by Congress to preclude Bivens actions. For several
reasons, the Court does not find this non-binding authority persuasive.
First, and most importantly, the court in Cuoco did not recognize that §
233(a) explicitly incorporates by reference the FTCA remedy codified at 28
U.S.C. § 2679, which, as discussed, expressly preserves the right to bring
Bivens claims. Second, and relatedly, Cuoco does not address whether
Congress viewed the FTCA as being equally effective as a Bivens action. The
Supreme Court has held that this threshold issue must be established before
declaring the FTCA an exclusive remedy at the expense of a Bivens claim. See
Carlson, 446 U.S. at 18-19. Yet, Cuoco never makes this finding, nor does
the opinion analyze the four factors set forth in Carlson that explain why
remedies under the FTCA and Bivens are not equally effective. 222 F.3d at
107-09. Third, Cuoco does not adequately examine the differences between a
state law medical negligence claim under the FTCA and a constitutional claim
under Bivens. On the one hand, Cuoco states: łOf course Congress could not,
by the simple expedient of enacting a statute, deprive Cuoco of her
constitutional due process rights, but that is not what § 233(a) does.˛ Id.
at 108. In the next sentence, however, Cuoco asserts that § 233(a) łprotects
commissioned officers or employees of the Public Health Service from being
subject to suit while performing medical and similar functions by requiring
that such lawsuits be brought against the United States instead.˛ Id. This
analysis overlooks the important fact that, as discussed, the United States
cannot be sued for constitutional violations. Therefore, Cuoco's
construction of § 233(a) does exactly what it claims it cannot do: deprive a
plaintiff of a constitutional claim by relegating him to an action under the
FTCA.

FN15. 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 łelective˛ because, as evidenced by this case, the label
fails to identify accurately who needs care. See, e.g., Brock v. Wright, 315
F.3d 158, 164 n. 3 (2d cir.2003) (łMerely because a condition might be
characterized as Ścosmeticą does not mean that its seriousness should not be
analyzed using the kind of factors˛ employed in normal Eighth Amendment
jurisprudence). DIHS labeled the treatment in this case łelective˛ even
while acknowledging that Castaneda's condition was so łsevere˛ that he would
need a łresection˛-full or partial removal of the penis. (Doyle Decl. Ex.
14.) Indeed, Plaintiff's evidence suggests that Dr. Hui defined łelective˛
so broadly that she believes the term to encompass life-saving treatment.

FN16. 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 łelective˛, and let him suffer in extreme
pain for almost one year while telling him to be łpatient˛ 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
łcruel˛ is inadequate.