Edison v. United States
| Citation | 822 F.3d 510 |
| Decision Date | 20 May 2016 |
| Docket Number | 14–17546.,Nos. 14–15472,s. 14–15472 |
| Parties | Gregory EDISON, Plaintiff–Appellant, v. UNITED STATES of America; The Geo Group, Inc.; Management and Training Corporation, Defendants–Appellees. Richard Nuwintore, Plaintiff–Appellant, v. United States of America, Defendant–Appellee, and Management & Training Corporation, Defendant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Ian M. Wallach (argued) and Jason K. Feldman (argued), Feldman & Wallach, Venice, CA; Mark A. Ozello and Suzy E. Lee, Arias Ozzello & Gignac, LLP, Raymond P. Boucher and Hermez Moreno, Boucher LLP, Woodland Hills, CA, for Plaintiffs–Appellants.
Alyson A. Berg (argued), Assistant United States Attorney, and Benjamin B. Wagner, United States Attorney, United States Attorney's Office, Fresno, CA, for Defendant–Appellee.
No appearance for Defendants–Appellees The GEO Group, Inc. and Management & Training Corp.
Appeals from the United States District Court for the Eastern District of California, Anthony W. Ishii, Senior District Judge, Presiding. D.C. Nos. 1:12–cv–02026–AWI–JLT, 1:13–cv–00967–AWI–JLT.
Before: A. WALLACE TASHIMA and WILLIAM A. FLETCHER, Circuit Judges, and ROBERT W. GETTLEMAN,* Senior District Judge.
TASHIMA
, Circuit Judge:
Plaintiffs are two prisoners housed at Taft Correctional Institution (“Taft”), the only federally-owned and contractor-operated prison in the country. In 2003, Taft was struck by an outbreak of coccidioidomycosis
(“cocci”), colloquially referred to as “Valley Fever.” In most individuals, cocci manifests primarily as a minor fever. In an unlucky few, however, the disease takes a different, more devastating course—it causes a number of painful conditions, and can be fatal. Plaintiffs, along with an unprecedented number of other prisoners, contracted cocci while incarcerated at Taft. Both developed the more dangerous form.
Plaintiffs assert, under the Federal Tort Claims Act (“FTCA”), that the United States breached its duty to protect them from harm. The FTCA holds the government liable for its torts to the same extent as a private individual in similar circumstances. But the government's liability under the FTCA is limited. The government cannot be held liable for torts committed by its independent contractors; accordingly, the district court lacks jurisdiction to entertain such claims. Nevertheless, the independent contractor exception is not a complete bar to liability any time the United States employs an independent contractor. Some duties of care are nondelegable; others are retained by the government, if not delegated. Here, the federal government retained some of its duties to Taft prisoners. The independent contractor exception to the FTCA does not bar Plaintiffs' claims alleging a breach of those duties the United States retained.
The district court granted the government's motions to dismiss for lack of subject-matter jurisdiction, Fed.R.Civ.P. 12(b)(1)
, under the independent contractor exception to the FTCA, 28 U.S.C. § 2671. Plaintiffs timely appeal. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
Taft is located in California's southern San Joaquin Valley. Although the Federal Bureau of Prisons (“BOP”) owns Taft, independent contractors operate the prison. This arrangement is unique within the BOP.
In 1997, Wackenhut Corrections Corporation, now known as The GEO Group, Inc. (“GEO”), was awarded a ten-year contract to operate Taft. In 2007, the BOP awarded a similar contract to Management & Training Corporation (“MTC”). MTC continues to operate Taft pursuant to its contract with the BOP. Both contracts assigned to the contractor the day-to-day operations of the prison, including the maintenance of buildings and the provision of medical care. A BOP employee who worked at Taft confirmed that “[n]o BOP employee was responsible for inmate safety and security, building and grounds maintenance, sanitation, health services, inmate orientation, inmate education, inmate recreation, inmate employment, inmate discipline, or any other aspect” of Taft's day-to-day operations. Yet, both contracts also reserved to the government the right to construct new buildings, expand existing buildings, and modify or add to the mechanical or utility systems of existing buildings.
In 2003, an epidemic of coccidioidomycosis
struck Taft. Cocci is an infectious disease caused by inhalation of Coccidioides immitis, a fungus that lives in the San Joaquin Valley soil. According to the Center for Disease Control and Prevention (“CDC”), “[s]ymptomatic coccidioidomycosis, which occurs in approximately 40% of all infections, has a wide clinical spectrum, including mild influenza-like illness, severe pneumonia, and disseminated disease.”1 The disseminated form of the disease—that is, when the fungus spreads from the lungs to the body's other organs—is the most serious. Disseminated cocci may cause miliary tuberculosis, bone and joint infections (including osteomyelitis ), skin disease, soft tissue abscesses, and meningitis. In some cases, surgery may be the only available treatment. The antifungal Fluconazole is effective against most cocci infections, but it is a daily treatment that must be continued for the rest of the patient's life. Individuals of certain races, especially African–Americans and Filipinos, are at significantly higher risk of contracting disseminated cocci than the rest of the population. If left untreated and allowed to progress to meningitis
, the disseminated form of the disease is uniformly fatal.
Taft is located in a region with one of the highest concentrations of the cocci fungus. In 2003, the number of prisoners infected at Taft reached epidemic numbers. Infections reportedly more than doubled between 2003 and 2005. The warden of Taft admitted there were “more cases of diagnosed Valley Fever [at Taft] than in all other federal prisons combined.” Several prisoners subsequently developed the disseminated form of the disease, and at least one died.
In response to the outbreak, the BOP contacted the CDC. Together, the agencies were to develop a plan addressing the epidemic at Taft. Plaintiffs presented evidence that, although the original plan included protocols for prevention, in addition to diagnosis and treatment, the BOP subsequently reversed course, abandoning its prevention efforts to focus exclusively on early diagnosis and treatment. Except for a small population of uninfected but immunocompromised prisoners, the final policy provided for only those individuals already infected with cocci. While formulating this policy, BOP officials sent an internal email requiring that all CDC and BOP employees coordinate policy efforts through the office of the BOP's medical team. The BOP specifically excluded its contractors from participating in policy development, mandating that “all CDC and BOP employees cease discussions with other parties (including any third-party contractors ...).” For prisoners who develop any form of cocci, including disseminated cocci, while incarcerated, The BOP provides no post-release medical care.
The BOP's contractors also took action. Around 2003 or 2004, GEO increased the frequency of various maintenance programs. GEO assigned prisoners to dust more regularly, wipe down the walls in the dormitories, and vacuum the overhead sprinklers where dust could accumulate. In addition, air filters in the ventilation system were replaced more frequently. GEO closed the recreation yard on windy days, because on those days the fungus becomes airborne, increasing the risk of infection.
According to its contract with the BOP, GEO was also responsible for providing healthcare to infected prisoners. Accordingly, GEO distributed information sheets about cocci to prisoners at the Health Services Unit. Starting in 2004, GEO also posted flyers describing cocci and its symptoms on bulletin boards outside the bathrooms in prisoner housing units. The flyers advised prisoners to report to the Health Services Unit if they began to experience symptoms. After taking over Taft's operations in 2007, MTC
created a written protocol for the intake, screening, and treatment of prisoners admitted to the health facility with symptoms of cocci. The protocol, however, did not address prevention.
On September 21, 2005, Plaintiff–Appellant Gregory Edison, an African–American man, was sentenced to serve 198 months in federal prison. The BOP assigned Edison to Taft. He was diagnosed with cocci on October 30, 2010. Edison alleges that he was in good health prior to his assignment to Taft and had not previously been exposed to the disease.
On July 5, 2011, Plaintiff–Appellant Richard Nuwintore, also an African–American man, was sentenced to serve 14 months in federal prison. The BOP assigned Nuwintore to Taft. Nuwintore was diagnosed with disseminated cocci in September 2011. Like Edison, Nuwintore alleges that he was in good health prior to his assignment to Taft and was not previously exposed to the disease.
In 2012, Edison filed suit against the United States and its independent contractors, GEO and MTC, in the Eastern District of California. He sought damages for personal injury as a result of contracting cocci while incarcerated at Taft. Edison alleged three claims against the United States under the FTCA. He alleged that the BOP had failed: (1) to warn Edison adequately of the dangers presented by cocci; (2) to provide Edison with a safe and habitable prison when it neglected to implement various preventative measures; and (3) to develop and implement an adequate response to the cocci epidemic.2 The United States filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the FTCA's independent contractor exception barred Edison's suit. The district court granted the motion. Edison, 2013 WL 4828579, at *6
.
Nuwintore filed suit against the United States and MTC, also in the Eastern...
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