Gregory Edison v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY EDISON, No. 14-15472

Plaintiff-Appellant,

D.C. No.

v. 1:12-cv-02026-AWI-JLT

UNITED STATES OF

AMERICA; THE GEO GROUP,

INC.; MANAGEMENT AND

TRAINING CORPORATION,

Defendants-Appellees.

RICHARD NUWINTORE, No. 14-17546

Plaintiff-Appellant,

D.C. No.

v. 1:13-cv-00967-AWI-JLT

UNITED STATES OF

AMERICA, OPINION

Defendant-Appellee,

and

MANAGEMENT & TRAINING

CORPORATION,

Defendant.

2 EDISON V. UNITED STATES

Appeals from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted February 8, 2016

San Francisco, California

Filed May 20, 2016

Before: A. Wallace Tashima and William A. Fletcher,

Circuit Judges, and Robert W. Gettleman,* Senior District

Judge.

Opinion by Judge Tashima

SUMMARY**

Federal Tort Claims Act

The panel reversed the district court’s dismissal of

plaintiffs’ Federal Tort Claims Act (“FTCA”) action, and

held that the independent contractor exception to the FTCA

did not bar plaintiffs’ claims alleging a breach of the

government’s duties to prisoners housed at Taft Correctional

Institution in California’s San Joaquin Valley.

*

The Honorable Robert W. Gettleman, Senior United States District

Judge for the Northern District of Illinois, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

EDISON V. UNITED STATES 3

Plaintiffs are two prisoners housed at Taft who contracted

coccidiodomycosis (“cocci”), colloquially known as “Valley

Fever,” while incarcerated at Taft. Although the federal

Bureau of Prisons (“Bureau”) owns Taft, independent

contractors operate the prison.

The panel held that plaintiffs met their burden to show

that the independent contractor exception did not bar the

district court’s subject matter jurisdiction under the FTCA.

Specifically, the panel held that the federal government owed

a duty of care to plaintiffs under California law, which

generally assumes that landowners have a duty to exercise

reasonable care in the ownership and management of the

property. The panel further held that the government’s duty

was underscored by the special relationship that California

recognizes between jailer and prisoner.

Concerning plaintiffs’ specific claims, first, the panel held

that the Bureau’s duty to warn prisoners before transferring

them to Taft arose out of the scope of its contractor

relationship with the prison operators, and therefore was not

barred by the independent contractor exception. The panel

held that because cocci posed a hidden danger that plaintiffs

could not reasonably ascertain on their own, the United States

had a duty to warn plaintiffs of cocci’s risks prior to their

transfer to Taft. The panel further held that the United States

could not have designated this duty to the prison operators.

Second, the panel held that to the extent that plaintiffs

alleged that the Bureau was negligent in failing to construct

covered walkways or other protective structures, the

independent contractor exception to the FTCA did not bar the

district court from considering their claim where the Bureau

retained the duty to construct such structures.

4 EDISON V. UNITED STATES

Third, the panel held that the independent contractor

exception to the FTCA did not bar the district court from

exercising jurisdiction over plaintiffs’ claim that the Bureau

had a duty to develop an adequate cocci prevention policy

where the Bureau expressed its intent to retain control over

the specific duty to develop a policy for the prevention and

treatment of cocci.

COUNSEL

Ian M. Wallach (argued) and Jason K. Feldman (argued),

Feldman & Wallach, Venice, California; Mark A. Ozello and

Suzy E. Lee, Arias Ozzello & Gignac, LLP, Los Angeles,

California; Raymond P. Boucher and Hermez Moreno,

Khorrami Boucher Sumner Sanguinetti, LLP, Los Angeles,

California, for Plaintiffs-Appellants.

Alyson A. Berg (argued), Assistant United States Attorney,

and Benjamin B. Wagner, United States Attorney, United

States Attorney’s Office, Fresno, California, for Defendant-

Appellee.

No appearance for Defendants-Appellees The GEO Group,

Inc. and Management & Training Corp.

EDISON V. UNITED STATES 5

OPINION

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.

6 EDISON V. UNITED STATES

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.

I.

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.

EDISON V. UNITED STATES 7

A. Outbreak at Taft

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

1

See Morbidity and Mortality Weekly Report: Coccidioidomycosis –

California, 1991–1993, Ctr. for Disease Control & Prevention (Jun. 17,

1994), http://www.cdc.gov/mmwr/preview/mmwrhtml/00031453.htm.

8 EDISON V. UNITED STATES

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.

B. The Official Response

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

EDISON V. UNITED STATES 9

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.

C. The Edison and Nuwintore Litigation

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.

10 EDISON V. UNITED STATES

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.

2

The third claim in Edison’s complaint alleges that the BOP “failed to

provide suitable quarters and provide for the protection, safekeeping, care,

and subsistence” of Edison as required by 18 U.S.C. § 4042(a). But in his

opposition to the United States’ motion to dismiss, Edison apparently

glossed this claim to encompass the BOP’s failure, in concert with the

CDC, to develop a prevention program to protect prisoners who had not

yet contracted cocci. On appeal, Edison characterizes the grounds for

liability as: (1) failure to warn; (2) failure to modify structures; and

(3) failure to develop and implement an adequate response to the cocci

epidemic. The district court did not address this discrepancy, see Edison

v. United States, No. 1:12-CV-02026-AWI, 2013 WL 4828579, at *1, *5

(E.D. Cal. Sept. 9, 2013), and the United States does not contest Edison’s

re-characterization of his third claim on appeal. Therefore, we treat the

third claim as alleging a negligent failure to develop and implement an

adequate response to the cocci epidemic. On remand, the district court

should grant Edison leave to amend his complaint accordingly. See

Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1152 (9th Cir.

2011) (noting leave to amend “should [be] freely give[n] when justice so

requires . . . to facilitate decision on the merits, rather than on the

pleadings or technicalities” (alterations in original) (internal quotation

marks and citations omitted)).

EDISON V. UNITED STATES 11

Nuwintore filed suit against the United States and MTC,

also in the Eastern District of California, alleging the same

three claims as Edison. Once again, the United States moved

to dismiss for lack of subject matter jurisdiction under the

FTCA. The magistrate judge, to whom the matter was

referred, agreed with the district court’s conclusion in Edison

that the independent contractor exception barred jurisdiction.

Nuwintore v. United States, No. 1:13-CV-00967-AWI, 2014

WL 1091358, at *9 (E.D. Cal. Mar. 18, 2014). The district

court adopted the magistrate judge’s findings and

recommendation in full and granted the United States’ motion

to dismiss. Nuwintore v. United States, No. 1:13-CV-00967-

AWI, 2014 WL 2174681, at *2 (E.D. Cal. May 23, 2014).

After their claims against the government were dismissed,

both Edison and Nuwintore moved for the entry of final

judgment pursuant to Federal Rule of Civil Procedure 54(b).3

The district court granted the motions. Edison v. United

States, No. 1:12-cv-02026-AWI, 2014 WL 896977, at *6

(E.D. Cal. Mar. 6, 2014); Nuwintore v. United States, No.

1:13-CV-0967-AWI, 2014 WL 7335215, at *3 (E.D. Cal.

Dec. 19, 2014). Upon entry of the Rule 54(b) final

judgments, Plaintiffs appealed.

II.

It is undisputed that the BOP’s independent contractors

are responsible for the day-to-day operations of Taft. But our

precedents do not hold that the United States is absolved of

all liability, no matter what the injury complained of or its

cause, any time it hires an independent contractor. This case

3

Edison and Nuwintore continue to litigate their claims against the

independent contractors, GEO and MTC, in the district court.

12 EDISON V. UNITED STATES

requires us to ascertain the boundaries of the United States’

liability when it has delegated some, but not all, of its legal

duties to an independent contractor.

A. Standard of Review

We review de novo a dismissal for lack of subject matter

jurisdiction under the FTCA. Vacek v. U.S. Postal Serv.,

447 F.3d 1248, 1250 (9th Cir. 2006). We review “[t]he

district court’s findings of fact relevant to its determination of

subject matter jurisdiction . . . for clear error.” Autery v.

United States, 424 F.3d 944, 956 (9th Cir. 2005) (quoting

Ass’n of Am. Med. Colls. v. United States, 217 F.3d 770, 778

(9th Cir. 2000)).

An attack on subject matter jurisdiction may be facial or

factual. “In a facial attack, the challenger asserts that the

allegations contained in a complaint are insufficient on their

face to invoke federal jurisdiction. By contrast, in a factual

attack, the challenger disputes the truth of the allegations that,

by themselves, would otherwise invoke federal jurisdiction.”

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

2004). Here, the United States mounted a factual attack when

it filed declarations and affidavits challenging Plaintiffs’

allegations that the government owed them a legal duty. The

government argued that it had delegated to private contractors

all duties the BOP owed Taft prisoners.

In response to a factual attack, Plaintiffs must present

“affidavits or any other evidence necessary to satisfy [their]

burden of establishing that the court, in fact, possesses subject

matter jurisdiction.” Colwell v. Dep’t of Health & Human

Servs., 558 F.3d 1112, 1121 (9th Cir. 2009) (citation

omitted). The district court may look beyond the pleadings

EDISON V. UNITED STATES 13

to the parties’ evidence without converting the motion to

dismiss into one for summary judgment. White v. Lee,

227 F.3d 1214, 1242 (9th Cir. 2000). In evaluating the

evidence, the court “need not presume the truthfulness of the

plaintiffs’ allegations.” Id. Any factual disputes, however,

must be resolved in favor of Plaintiffs. Dreier v. United

States, 106 F.3d 844, 847 (9th Cir. 1996).

B. The FTCA’s Independent Contractor Exception

The United States is immune from suit unless it consents

to be sued. See Dalehite v. United States, 346 U.S. 15, 30

(1953) (citing Feres v. United States, 340 U.S. 135, 139

(1950)). The FTCA is a limited waiver of that sovereign

immunity, under which “the United States is liable to the

same extent as a private party for certain torts of federal

employees . . . ‘in accordance with the law of the place where

the act or omission occurred.’” Autery, 424 F.3d at 956

(quoting 28 U.S.C. § 1346(b)(1)). The FTCA’s limited

waiver of sovereign immunity explicitly excludes “any

contractor with the United States” from its definition of

“[e]mployee of the government,” 28 U.S.C. § 2671; this is

known as the independent contractor exception to the FTCA.

Courts have construed the independent contractor exception

to protect the United States from vicarious liability for the

negligent acts of its independent contractors. Yanez v. United

States, 63 F.3d 870, 872 n.1 (9th Cir. 1995). “Since the

United States can be sued only to the extent that it has waived

its immunity, due regard must be given to the exceptions,

including the independent contractor exception, to such

waiver.” United States v. Orleans, 425 U.S. 807, 814 (1976).

The independent contractor exception, however, has no

bearing on the United States’ FTCA liability for its own acts

14 EDISON V. UNITED STATES

or omissions. “Many cases recognize that it is not a defense,

to liability for one’s own negligence in connection with an

actor whose conduct injured a third party, that the actor was

not an agent or an employee,” but rather an independent

contractor. Restatement (Third) Of Agency § 7.05 (2006).

Even where an employer has delegated some responsibilities

to an independent contractor, the employer may still be held

separately and directly liable for its own negligence.4 See

Logue v. United States, 412 U.S. 521, 532–33 (1973). Thus,

a determination that the United States has declined to exercise

control over the day-to-day operations of its contractor is not

the end of the analysis. We must also determine whether

Plaintiffs have alleged a separate nondelegable or

undelegated duty, which the United States could be held

directly liable for breaching. Only upon a finding that the

government delegated its entire duty of care may the court

dismiss the claim for lack of jurisdiction under the FTCA’s

independent contractor exception.

Here, the district court denied Plaintiffs’ claims because

the BOP delegated day-to-day care of Taft prisoners to GEO

and MTC: “MTC was responsible for inmate orientation and

4

The Ninth Circuit has previously applied this principle to hold the

United States liable under the FTCA. An example is the line of FTCA

cases applying the “peculiar risk” doctrine to hold the government directly

liable for its failure to act, despite its delegation of safety procedures to an

independent contractor. See Myers v. United States, 652 F.3d 1021, 1034

(9th Cir. 2011); Yanez, 63 F.3d at 872 n.1 (“Under the FTCA, the United

States may not be held vicariously liable. However, [peculiar risk]

liability has been construed as creating direct liability for the

government’s nondelegable duty to ensure that the contractor employs

proper safety procedures.” (citing McCall v. United States, 914 F.2d 191,

194 (9th Cir. 1990))); McGarry v. United States, 549 F.2d 587, 590 (9th

Cir. 1976).

EDISON V. UNITED STATES 15

health, and warned inmates regarding the risks of [cocci],”

while the BOP “was not responsible for maintenance,

sanitation, health services, health education or inmate

orientation.” Nuwintore, 2014 WL 1091358, at *9. That is,

the BOP did not attempt to supervise or control GEO/MTC in

performing the day-to-day tasks of running a prison. Id.

Based on the foregoing, the district court concluded that the

independent contractor exception prevented it from exercising

jurisdiction over Plaintiffs’ claims under the FTCA.

There is no question in this case that GEO and MTC were

independent contractors – Plaintiffs have conceded as much.

Plaintiffs, however, do not seek to hold the United States

vicariously liable for the acts or omissions of GEO/MTC.

Rather, Plaintiffs seek to hold the United States directly liable

for its failure to take action in response to the cocci epidemic,

outside the scope of its relationship with GEO/MTC.

Plaintiffs rely on a duty of the United States that arose before

they arrived at Taft, which could not have been delegated in

a practical sense; they point to other duties retained by the

United States, which accrued after their arrival, and were

separate from the day-to-day responsibilities that the parties

agree were delegated to GEO/MTC. The district court erred

in its independent contractor analysis when it failed to

address these arguments.

C. The United States’ Direct Liability

Whether the United States may be held liable under the

FTCA for its own acts or omissions is a three-step inquiry.

First, we decide whether state law, in this case, California

law, would impose a duty of care on a private individual in a

similar situation. 28 U.S.C. § 2674; Autery, 424 F.3d at 956.

“The extent of the United States’ liability under the FTCA is

16 EDISON V. UNITED STATES

generally determined by reference to state law.” Liebsack v.

United States, 731 F.3d 850, 855 (9th Cir. 2013) (quoting

Molzof v. United States, 502 U.S. 301, 305 (1992)). Because

Taft is located in California, we look to California law to

evaluate Plaintiffs’ claims. Second, if it would, we then look

to the contract and the parties’ actions to determine whether

the United States retained some portion of that duty for which

it could be held directly liable. See Autery, 424 F.3d at

957–59 (examining contractual language and parties’ course

of dealing to determine whether the duty was delegated);

McGarry, 549 F.2d at 588 (describing contractual language

and parties’ past practices). Finally, even if it appears that the

government delegated all of its duties to the independent

contractor, we ask whether California law imposed any

nondelegable duties on the government. Yanez, 63 F.3d at

874–75 (holding United States had nondelegable duty under

California law); McGarry, 549 F.2d at 590 (holding United

States had nondelegable duty under Nevada law).

In this case, California law imposes a general duty of care

on the United States as a landowner. Section 1714 of the

California Civil Code sets forth the basic policy governing

landowner liability in Califonia. It states, in relevant part:

Everyone is responsible, not only for the

result of his or her willful acts, but also for an

injury occasioned to another by his or her

want of ordinary care or skill in the

management of his or her property or person,

except so far as the latter has, willfully or by

want of ordinary care, brought the injury upon

himself or herself.

EDISON V. UNITED STATES 17

Cal. Civ. Code § 1714(a). See also Kinsman v. Unocal Corp.,

123 P.3d 931, 938–39 (Cal. 2005) (quoting Rowland v.

Christian, 443 P.2d 561, 568 (Cal. 1968)).

In California, landowners must act reasonably in the

management of their property, with an awareness of “the

probability of injury to others.” Id. The state employs a

strong presumption in favor of finding that landowners, and

indeed all persons, have a duty to use ordinary care to

prevent injury to others: “[I]n the absence of a statutory

provision establishing an exception to the general rule of

Civil Code § 1714, courts should create one only where

‘clearly supported by public policy.’” Cabral v. Ralphs

Grocery Co., 248 P.3d 1170, 1174 (Cal. 2011) (quoting

Rowland, 443 P.2d at 564).5

5

Although broad, this basic policy is not without its limits. In Rowland,

the California Supreme Court indicated several factors that, “when

balanced together, may justify a departure from” the general duty of care

imposed by § 1714. See Cabral, 248 P.3d at 1174. Foremost among the

Rowland factors are the foreseeability of the harm and the burden to the

defendant. Campbell v. Ford Motor Co., 141 Cal. Rptr. 3d 390, 404 (Ct.

App. 2012), as modified on denial of reh’g (June 19, 2012) (quoting

Vasquez v. Residential Inv., Inc., 12 Cal. Rptr. 3d 846, 854 n.5 (Ct. App.

2004)).

These exceptions notwithstanding, California has historically held

that § 1714 gives rise to a duty of care in a wide range of circumstances.

In Kinsman, the California Supreme Court imposed a duty on landowners

who hire independent contractors to warn invitees “of a latent or

concealed pre-existing hazardous condition on [the] property,” which the

landowner knew or should have known about. Kinsman, 123 P.3d at 933.

In Sprecher v. Adamson Co., 636 P.2d 1121 (Cal. 1981), the court applied

Rowland to impose a duty of reasonable care on landowners to protect

even individuals injured off-property from natural hazards. Id. at 1128.

18 EDISON V. UNITED STATES

Plaintiffs allege that the United States, acting through the

BOP, owed three specific duties to Taft prisoners. First,

Plaintiffs argue the United States had a duty to warn prisoners

about cocci. Second, Plaintiffs argue the United States had a

duty to implement preventative measures to protect prisoners

– particularly those with a heightened risk of developing the

disseminated form of the disease – from contracting cocci.

Third, Plaintiffs argue that by specifically excluding its

independent contractors from efforts to develop a prevention

policy in partnership with the CDC, the United States retained

a duty to ensure the policy adequately protected prisoners

from harm. We analyze each of these claims in turn.

1. Duty to Warn

Although GEO and MTC provided some warnings to

Plaintiffs in the form of flyers posted around the prison, the

BOP itself never issued any warnings to prisoners regarding

the risk of contracting cocci at Taft. In California,

landowners may be held liable for a failure to warn invitees

of hidden dangers where “(1) defendant [landowners] knew

or reasonably should have known of a concealed, preexisting

hazardous condition on their premises; (2) plaintiff . . . did

not know and could not reasonably ascertain the condition;

and (3) defendants failed to warn plaintiff.” Gravelin v.

Satterfield, 132 Cal. Rptr. 3d 913, 919 (Ct. App. 2011) (citing

Kinsman, 123 P.3d at 940). Because cocci poses a hidden

danger that Plaintiffs could not reasonably ascertain on their

own, the United States had a duty to warn Plaintiffs of cocci’s

risks prior to their transfer to Taft.

In the district court, Plaintiffs presented uncontroverted

evidence that the BOP knew Taft prisoners had an increased

risk of cocci exposure and infection at least as of the late

EDISON V. UNITED STATES 19

1990s. Yet until GEO/MTC passed that information on to

prisoners, it is highly unlikely that Plaintiffs could have

known about the increased likelihood of contracting cocci

there, let alone the heightened danger facing African-

American, Filipino, and immunocompromised individuals.

A fungus that resides in the soil of the San Joaquin Valley,

cocci is invisible and scentless; individuals are typically

infected by breathing in dust, especially in windy conditions.

Cocci is a classic example of a hidden danger, and the United

States had a duty to warn Plaintiffs about it.6

To prove that the district court had jurisdiction over their

claims, Plaintiffs must also show that the United States did

not delegate its duty of care. Here, the United States could

not have delegated its duty to warn Plaintiffs for a simple

reason: GEO and MTC have no power to assign prisoners or

to protect any prisoners housed outside of Taft. Thus, even

if the United States could have delegated its duty to warn

Plaintiffs once they arrived at Taft, it was not practically

possible to delegate that portion of the government’s duty

arising prior to Plaintiffs’ transfer to Taft. We conclude that

the independent contractor exception did not bar the district

court from exercising jurisdiction over that portion of

Plaintiffs’ failure to warn claim covering the period of time

prior to Plaintiffs’ transfer to Taft. Because the United States

could not have delegated this duty to GEO/MTC, our inquiry

ends at the second step of the analysis.

6

The importance of the duty is made clear by assessing the

consequences of breach: The United States’ failure to warn Plaintiffs

about cocci prior to transfer likely kept them from taking any preventative

action to protect themselves. Plaintiffs were deprived of the opportunity

to request transfer to a different facility or to seek alternative placement

via the BOP’s administrative grievance procedures.

20 EDISON V. UNITED STATES

2. Duty to Build or Modify Protective Structures

Once GEO/MTC warned Plaintiffs about cocci, the

possibility of infection became a known hazard.

Nevertheless, in California, a landowner’s duty of care does

not end with the requirement to warn individuals of hidden

dangers. California relies on Restatement (Second) of Torts

§ 343A to define the duties of a possessor of land toward

invitees, including those who encounter a known danger.

According to the Restatement, “[a] possessor of land is not

liable to his invitees for physical harm caused to them by any

activity or condition on the land whose danger is known or

obvious to them, unless the possessor should anticipate the

harm despite such knowledge or obviousness.” Restatement

(Second) of Torts § 343A(1) (1965) (emphasis added). The

California Supreme Court has expanded on this principle,

explaining that “[t]here may be situations . . . in which an

obvious hazard, for which no warning is necessary,

nonetheless gives rise to a duty on a landowner’s part to

remedy the hazard because knowledge of the hazard is

inadequate to prevent injury.” Kinsman, 123 P.3d at 939. At

Taft, even once Plaintiffs had been warned about cocci – and

the hazard therefore became an “obvious” or known one –

Plaintiffs’ knowledge alone may not have been sufficient to

prevent infection. As a landowner, the BOP had a duty to

protect Taft’s prisoners from cocci to the extent that they

could not protect themselves.

That the United States had a duty to protect Plaintiffs is

further bolstered by California’s recognition of a special

relationship between jailers and prisoners. The state imposes

a heightened duty of care on jailers, due to prisoners’

increased vulnerability while incarcerated. Giraldo v. Cal.

Dep’t of Corrs. & Rehab., 85 Cal. Rptr. 3d 371, 382–88 (Ct.

EDISON V. UNITED STATES 21

App. 2008); see also Lawson v. Superior Court, 103 Cal.

Rptr. 3d 834, 849–50 (Ct. App. 2010).7 The very fact of their

incarceration means that prisoners are often helpless to

protect themselves from harm. Restatement (Second) of

Torts § 320 cmt. b. (1965). While California law specifically

contemplates this duty as one to protect prisoners from the

criminal acts of third parties, see Giraldo, 85 Cal. Rptr. 3d at

385, the same rationale also supports recognition of the

special relationship in the context of environmental hazards

endemic to the prison itself. Indeed, because prisoners have

so little control over their living quarters or daily schedules

while incarcerated, they may be just as helpless to protect

themselves from environmental hazards like cocci as they are

to protect themselves from third parties.

As prisoners, Plaintiffs were particularly vulnerable to

infection: Even if Plaintiffs had been warned of the disease,

they were unable to move to a different location, remodel

their living quarters, or erect protective structures, such as

covered walkways. Thus, by placing prisoners at Taft, the

BOP directly increased Plaintiffs’ risk of harm. Under

California law, the United States had a duty to protect

Plaintiffs from the risk of contracting cocci.

Under the second step of the analysis, we ask whether the

United States delegated its duty to protect Plaintiffs from

cocci. To be sure, the United States delegated the day-to-day

7

While the jailers in Giraldo and Lawson were governmental actors,

nothing in the court’s rationale would preclude the application of the same

principle to non-governmental, i.e., private-party, jailers, such as

GEO/MTC. Cf. LaBarge v. Cty. of Mariposa, 798 F.2d 364, 367 (9th Cir.

1986) (“Because the federal government could never be exactly like a

private actor, a court’s job in applying the [private person] standard is to

find the most reasonable analogy.”).

22 EDISON V. UNITED STATES

supervision and maintenance of Taft to its contractors.

Indeed, once it became clear that Taft was experiencing a

cocci epidemic, both GEO and MTC implemented certain

responsive measures. In addition to increasing the frequency

of maintenance tasks like dusting and changing air filters,

GEO/MTC posted flyers warning prisoners that they were at

risk of contracting cocci. Nevertheless, the preventative

measures taken by the independent contractors were not

sufficient to satisfy the BOP’s own duty to protect prisoners

under California law.

Plaintiffs assert that in addition to day-to-day measures,

the United States had a duty to build or modify structures to

reduce prisoners’ exposure to the cocci-laden dust of the San

Joaquin Valley. Specifically, Plaintiffs claim that

construction of covered walkways could have protected them

from exposure to the dust. And while the BOP delegated

most day-to-day activities to GEO/MTC, the BOP expressly

reserved at least one right to itself: the right to construct new

buildings or modifications of or additions to existing

buildings. The United States’ contracts with GEO and MTC

state that “[n]o modifications or additions to existing

buildings, mechanical or utility systems shall occur (other

than routine maintenance or replacement of components)

without prior approval of the [government].” Further, “[t]he

government reserves the right to construct additional

buildings on its property and/or expand the capacity of

existing buildings. The contractor shall cooperate to the

fullest extent possible should the government exercise this

right.”8 The plain language of the contract indicates that the

8

Although both contracts with GEO and MTC were filed in the district

court under seal, the provisions of the contracts have been referred to and

quoted repeatedly in the pleadings and briefs filed by the parties on the

EDISON V. UNITED STATES 23

BOP retained control over construction at Taft, which

presumably would include the construction of covered

walkways, or the construction of other preventative structures

on the land. In retaining this power, the BOP also retained

the duty to construct such structures, should it become

necessary to do so. To the extent that Plaintiffs allege that the

BOP was negligent in failing to construct covered walkways

or other protective structures, the independent contractor

exception to the FTCA does not bar the district court from

considering their claim. The analysis can be resolved at the

second step. The government may be held directly liable for

its failure to act.

3. Duty to Develop an Adequate Cocci Prevention

Policy

Finally, the BOP had a duty, under the larger umbrella of

its duty to protect Plaintiffs from cocci, to develop a

preventative policy responsive to the cocci outbreak.9 As

previously discussed, the BOP had a duty, as a landowner and

jailer, to protect vulnerable prisoners in its charge from

foreseeable harm, because prisoners unable to control the

particulars of their daily lives are “deprived of the normal

opportunity to protect [themselves] from harm.” Giraldo,

85 Cal. Rptr. 3d at 386. Once it became clear that Taft was

public record. The Court, therefore, deems these provisions of the

contracts as tantamount to having been unsealed by consent.

9

While we are, of course, aware that the FTCA includes a discretionary

function exception, see 28 U.S.C. § 2680(a); United States v. Gaubert,

499 U.S. 315, 322 (1991), this exception was not invoked by the United

States in its motions to dismiss. We therefore do not reach the issue and

express no view on it because it was neither raised nor briefed by the

parties.

24 EDISON V. UNITED STATES

experiencing an outbreak of cocci, the BOP began to work

with the CDC to develop a policy for the prevention and

treatment of cocci in prisoners. This was consistent with its

duty as a landowner and jailer under California law. In the

instant case, not only was the harm – the likelihood of

infection absent preventative measures – foreseeable to the

BOP, but the BOP actually took preliminary steps to execute

its protective duty. Thus, the BOP’s status as a landowner

and jailer gave rise to a duty to protect Taft prisoners from

harm, including by developing an adequate cocci prevention

policy.

Although the United States delegated the general duty to

oversee healthcare at Taft to GEO/MTC, its actions make

clear that it chose to retain the specific duty to develop a

policy for the prevention and treatment of cocci. Plaintiffs

presented evidence in the district court that the BOP took

upon itself the task of developing a policy in response to the

cocci outbreak. The BOP also went a step further,

specifically directing that its contractors be excluded from

development of this policy. In so doing, the BOP expressed

its intent to retain control over this aspect of its duty. See

Yanez, 63 F.3d at 875 (finding jurisdiction under FTCA

where government failed to exercise retained right to order

correction of safety violations). Thus, the independent

contractor exception to the FTCA does not bar the district

court from exercising jurisdiction over Plaintiffs’ third

claim.10

10

As with the duties discussed above, we need not decide whether this

duty was nondelegable because the United States expressly retained a

relevant portion of its duty to Plaintiffs.

EDISON V. UNITED STATES 25

III.

Plaintiffs have met their burden to show that the

independent contractor exception does not bar the district

court’s subject matter jurisdiction under the FTCA. The

government owed a duty of care to Plaintiffs under California

law, which generally assumes that landowners have a duty to

exercise reasonable care in the ownership and management of

property. In this case, the government’s duty was

underscored by the special relationship that California

recognizes between jailer and prisoner.

The BOP’s duty to warn prisoners before transferring

them to Taft arose outside of the scope of its contractor

relationship with GEO/MTC, and therefore is not barred by

the independent contractor exception. Further, the BOP did

not delegate all of its duties to GEO/MTC, even once

prisoners arrived at Taft. Instead, it retained both the

exclusive right to construct new buildings and the exclusive

right to make modifications to existing buildings. The BOP

also explicitly excluded its contractors from participating in

the development of a cocci prevention policy. As to these

claims, the independent contractor exception to the FTCA

does not bar the district court’s exercise of subject matter

jurisdiction.11

In each of these cases, 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

11

On remand, the district court should grant Plaintiffs leave to amend

their complaints to conform to this Opinion. See footnote 2, supra.

26 EDISON V. UNITED STATES

to the district court for further proceedings consistent with

this opinion.

REVERSED and REMANDED.