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BOP Potentially Liable for Valley Fever Outbreak at Privately-run California Prison

by Lonnie Burton

On May 20, 2016, the U.S. Court of Appeals for the Ninth Circuit reinstated lawsuits filed by two federal prisoners who had sued the government and two prison contractors for failing to protect them from “valley fever,” an infectious disease, at a privately-run federal prison.

The Taft Correctional Institution is located in Kern County in central California. Although Taft is owned by the federal Bureau of Prisons (BOP), its day-to-day operations are contracted out to a private prison company. Until 2007, Taft was run by the GEO Group, and since that time it has been operated by Management and Training Corp. (MTC). Taft was built in the San Joaquin Valley, where the soil is infested by coccidioidomycosis, commonly known as “cocci” – a fungus that when inhaled can cause a flu-like illness or pneumonia and is sometimes fatal.

In 2003, the number of prisoners at Taft infected with valley fever reached epidemic levels. The warden admitted there were “more cases of diagnosed valley fever at Taft than in all other federal prisons combined.”

In response to the outbreak, the BOP and the Centers for Disease Control initially developed a plan that included prevention protocols, but then quickly abandoned that effort and focused exclusively on diagnosis and treatment of the disease.

Gregory Edison was sentenced to 198 months in prison in 2005 and was sent by the BOP to Taft. Richard Nuwintore was sentenced to 14 months in 2011 and also was assigned to Taft. Both men are black, and both were diagnosed with valley fever soon after arriving at the prison; blacks and Filipinos are especially susceptible to contracting the disease.

Edison and Nuwintore filed separate lawsuits against the BOP, as well as GEO Group and MTC, alleging that the government failed to warn them about valley fever and give them an opportunity to request a transfer elsewhere. They raised claims under the Federal Tort Claims Act (FTCA), arguing that the BOP failed to protect them from a known harm that it failed to prevent.

Federal prison officials moved to dismiss the suit, claiming they could not be held liable for torts committed by the BOP’s private contractors under an exception to the FTCA. The district court agreed and dismissed the case, and the plaintiffs appealed.

In a 3-0 ruling, the Ninth Circuit reversed and reinstated the lawsuits. The panel found that the BOP owed a duty of care to Nuwintore and Edison under California law, and that the government’s duty was underscored by the special relationship California recognizes between prison officials and prisoners.

As for the BOP’s argument that it was not involved in the daily operations of Taft and therefore immune from suit under the FTCA, the appellate court disagreed. Private contractors such as GEO and MTC “have no power to assign prisoners or to protect any prisoners housed outside of Taft,” the Ninth Circuit wrote. “Cocci is a classic example of a hidden danger, and the United States had a duty to warn Plaintiffs about it.”

The Court of Appeals held that the FTCA’s independent contractor exception did not apply in this case because the BOP had a duty to warn prisoners prior to transferring them to Taft, based on the known hazards of valley fever.

The Court also found that as the BOP had an additional duty to develop and implement an adequate prevention policy for valley fever infections yet failed to do so, the FTCA did not bar the district court from exercising jurisdiction over the plaintiffs’ claims.

“In each of these cases,” the Ninth Circuit concluded, “the district court’s dismissal of Plaintiffs’ complaints under the independent contractor exception to the FTCA is reversed to the extent dismissal is inconsistent with this opinion, and these cases are remanded to the district court for further proceedings.” See: Edison v. United States, 822 F.3d 510 (9th Cir. 2016). The lawsuits remain pending on remand.

PLN has reported extensively on problems involving valley fever infections among prisoners in California and Arizona, primarily in state facilities. [See: PLN, July 2016, p.32; June 2015, p.46; July 2013, p.28; June 2008, p.22]. 

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Related legal case

Edison v. United States