To determine whether a private actor acts under color of
state law, we must evaluate whether the alleged infringement
of federal rights is “fairly attributable” to the government even though committed by private actors. Kirtley v. Rainey,
326 F.3d 1088, 1092 (9th Cir. 2003); see also West v. Atkins,
487 U.S. 42, 49 (1988) (“To constitute state action, the deprivation
must be caused by the exercise of some right or privilege
created by the State or by a person for whom the State
is responsible, and the party charged with the deprivation
must be a person who may fairly be said to be a state actor.”
(internal punctuation omitted)).
Determining what is fairly
attributable to the government “is a matter of normative judgment,
and the criteria lack rigid simplicity. . . . [N]o one fact can function as a necessary condition across the board for
finding state action; nor is any set of circumstances absolutely
sufficient, for there may be some countervailing reason
against attributing activity to the government.” Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288,
295-96 (2001). There must be “such a close nexus between
the State and the challenged action that seemingly private
behavior may be fairly treated as that of the State itself.” Id.
at 295 (internal quotation marks omitted); see also Single
Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 747 (9th Cir.
2003).
[3] “Because of the fact-intensive nature of the inquiry,
courts have developed a variety of approaches” to assess
whether a private party has acted under color of state law. Lee
v. Katz, 276 F.3d 550, 554 (9th Cir. 2002). We have recognized
at least four such criteria, or tests: (1) public function,
(2) joint action, (3) governmental compulsion or coercion, and (4) governmental nexus. Kirtley, 326 F.3d at 1092; Sutton v.
Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th
Cir. 1999). There is no precise formula for determining
whether a private party is a state actor, but the decisions stress
the need for a close nexus between the state and the challenged
conduct. See Brentwood, 531 U.S. at 295. The established
criteria are helpful in determining the significance of
state involvement, and “[s]atisfaction of any one test is sufficient
to find state action, so long as no countervailing factor
exists.” Kirtley, 326 F.3d at 1092.
Under the “public function” analysis, state action is
present “in the exercise by a private entity of powers traditionally
exclusively reserved to the State.” Caviness v. Horizon
Cmty. Learning Ctr., Inc., 590 F.3d 806, 814 (9th Cir.
2010) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345,
352 (1974)). For example, in West v. Atkins, the Supreme
Court held that a private physician acted under color of state
law when the physician contracted with the state to provide
medical services to prisoners at state-prison hospitals. 487
U.S. at 54. A prisoner filed a civil-rights action against such
a physician alleging that the physician violated the prisoner’s
Eighth Amendment rights by failing to provide necessary
medical treatment. Id. at 45. The Court held that the physician’s
conduct could “fairly be attributed to the State”
because the state “bore an affirmative obligation to provide
adequate medical care to [the prisoner]; the State delegated
that function to respondent [physician]; and respondent voluntarily
assumed that obligation by contract.” Id. at 55-56. The
Court found significant the prison’s policy prohibiting the
prisoner from employing or electing “to see a different physician
of his own choosing.” Id. at 44. The Court held, “Contracting
out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment
to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment
rights.” Id. at 56; see also, e.g., Lee, 276 F.3d at 554-55.
Court says family can't sue federal doctors over detainee's death
"Beyond cruel and unusual punishment"
By David G. Savage, Tribune Washington Bureau
May 3, 2010 | 7:50 p.m.
Reporting from Washington The family of a Los Angeles-area immigrant who languished in federal detention for nearly a year while a cancerous growth went untreated cannot sue government doctors for medical neglect, the Supreme Court ruled Monday.
The case of Francisco Castaneda had been called shocking and "beyond cruel and unusual punishment" by a judge in Los Angeles.
But in a 9-0 opinion written by Justice Sonia Sotomayor, the high court said federal law prohibited suits against the employees of the Public Health Service, which provides medical care at immigration facilities and at some federal prisons.
A refugee from El Salvador who came to Los Angeles with his mother when he was 10, Castaneda was convicted of a drug charge in his early 30s. He was briefly held in a state prison and then transferred to the federal San Diego Correctional Facility pending his deportation.
Over 11 months, he repeatedly complained to doctors and a physician's assistant that he had a growing lesion on his penis that he believed was cancerous. They refused to order a biopsy and told him, according to a report in his files, that he needed "to be patient and to wait."
Castaneda was given ibuprofen and an extra set of boxer shorts because the growth was bleeding. Three outside specialists recommended a biopsy, but Dr. Esther Hui, his treating physician, refused.
Castaneda filed a grievance saying he was in great pain and "in desperate need of medical attention."
In January 2007, another specialist recommended a biopsy, but instead, Immigration and Customs Enforcement officials ordered Castaneda released, sparing the agency the cost of treating him.
Three days later, he went to a hospital where he was diagnosed with cancer. His penis was amputated, but it was too late; the cancer had spread. He died at his Los Angeles home in February 2008.
Before his death, Castaneda testified before a House subcommittee that was investigating poor medical care given to immigrants held in federal custody. He also filed a broad lawsuit against the U.S. government, California's prison system and Hui, and a physician's assistant at the Public Health Service who denied him treatment. His sister and his daughter continued the suit after his death.
Two years ago, U.S. District Judge Dean Pregerson in Los Angeles called the case "one of the most, if not the most egregious" violations of a detainee's constitutional rights that he "had ever encountered." The U.S. 9th Circuit Court of Appeals, in a 3-0 decision, agreed last year and said Public Health Service employees could be sued for ignoring a desperate prisoner's need for medical care.
But the Supreme Court disagreed, saying that Congress had specifically prohibited suits against Public Health Service employees. Sotomayor said the law governing the Public Health Service says a damage suit against the government itself is the "exclusive" remedy for victims of medical errors or negligence.
"We are mindful of the confines of our judicial role," Sotomayor said in Hui vs. Castaneda. There may be good arguments for allowing sympathetic plaintiffs to sue over egregious conduct, she said, but "we are required, however, to read the statute according to its text."
Sotomayor noted that the federal government had admitted liability for "medical negligence" in Castaneda's case.
Gabriel Eber, staff attorney with the American Civil Liberties Union's National Prison Project, said, "Today's ruling is a disappointment and yet another missed opportunity to bring about the meaningful reforms that our nation's immigration detention system desperately needs."
Arthur Bryant, executive director of Public Justice in Oakland, who represented Castaneda's family, said they would press forward with their claims against the government.
"We are, of course, disappointed," Bryant said. "But this is far from over."
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