F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

G R E G O R Y E D I S O N , Plaintiff-Appellant
,

v.

U N I T E D S T A T E S O F A M E R I C A ; T H E GEO G R

O U P , I N C .; M A N A G E M E N T A N D T R A I N I N G C O R P O R A T I O N , Defendants-Appellees. No. 14-15472

D.C. No. 1:12-cv-02026-AW I -J L T

R I C H A R D N U W I N T O R E , Plaintiff-Appellant
,

v.

U N I T E D S T A T E S O F A M E R I C A , Defendant-Appellee
,

and

M A N A G E M E N T & T R

A I N I N G C O R P O R A T I O N , Defendant. No. 14-17546

D.C. No. 1:13-cv-00967-AW I -J L T

OPI NI ONE D I S O N V

. U N I T E D S T A T E S 2

Appeals from the United States District Court

for the Eastern District of California Anthony W . I shii, Senior District J udg e, Presiding

A rg ued and Submitted F ebruary 8, 2016 San F rancisco, California

F iled May

20, 2016

B efore: A. W a llace Tashima and W illiam A. F letcher, Circuit J udg es, and Robert W . Gettleman, * Senior District J udg e.

Opinion by

J u dg e Tashima

SUMMARY * *

F ederal Tort Claim s Act

The pan e l r eversed the d istrict court’s dismissal o f plaintiffs ’ Fe d eral Tort Claims Act (“F TCA”) action, a nd held that the independent contractor ex ception to t h e F TCA did not b ar p laintiffs’ claims a l l e gi ng a breach of the
g overnment’s duties to prisoners housed at Taft Correctional I nstitution in California’s San J oaquin Valley

.

* T h e H o n o r ab le Ro bert W

. Gettlem an , Sen i o r Un ited States District J u d g e f o r th e No rth ern District o f Illin o is, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.E D I S O N V

. U N I T E D S T A T E S 3

Plaintiffs are two prisoners housed at Taft who contracted coccidiodomy c osis (“cocci”), colloquially known as “Valley F ever,” w hile incarcer a t e d a t Taft. Althoug h the federal B ureau of Prisons (“B ureau”) own s Taft, independent contractors operate the prison.

The p anel held that plaintiffs met their b urden to show that the independent contra c t o r ex c e ption did not bar the district court’s subject matter juris d i c t ion under the F TCA. Specifically
, the p a

n el h eld that the federal g overnment owed

a duty of care t o p l a i ntiffs u nder California law, which
g enerally a ssumes that landowne r s h ave a duty to ex ercise

reaso n a b l e care in the ownership a nd manag ement of the
p r o p e rty

. The panel further h eld that the g overnment’s du t y

was u nderscored by the special relationship that Calif o r n ia
recog niz es between jailer and prisoner.

C o n c e rning plaintiffs’ specific claims, first, the panel held that the B ureau’s duty to warn p risoners before transferring them to Ta f

t arose out of the scope of its contractor relationship with the prison operators, and therefore was not barred by the independent contractor ex ception. The panel held that because cocci posed a hidden dang er that plaintiffs could not reasonably ascertain o n their own, the United States had a duty t o w a rn plaintiffs of c occi’s risks prior to their transfer to Taft. The p anel further held that the United States could not have desig nated this duty to the prison operators.

Second, the panel held that to the ex tent that plaintiffs alleg ed that the B ureau was neg lig ent i n failing to construct covered walkway s o r other protective st r u c t ures, the independent contractor ex ception to the F TCA did not bar the district c ourt from considering their claim where the B ureau retained the duty

to construct such structures.E D I S O N V

. U N I T E D S T A T E S 4

Third, the panel held that the independent contractor

ex c e ption to the F TCA d i d not bar the district court from

ex e r cising jurisdiction over p laintiffs’ claim that the B ureau had a duty to develop a n ad equate cocci prevention p olicy

w h ere the B ureau ex pressed its intent to retain control o v e r t he specific duty to d evelop a policy f or the preven t i o n a n d treatment of cocci.

COUNSEL

I an M

. W a l lach (arg

ued) and J ason K

. F eldman (arg ued), F eldman & W allach, Venice, California; Mark A. Oz ello a nd Suz y E. L ee, A rias O z z e llo & Gig nac, L L P, L os Ang eles, California; Ray

mond P. B oucher a

nd Hermez Moreno, Khorrami B oucher Sumner Sang uinetti, L L P, L os Ang eles, California, for Plaintiffs-Appellants.

Aly son A. B erg (arg

u ed), Assistant United Stat es A t torney , and B en j am in B

. W ag ner, United States Attorney
, United States Attorney ’s Office, F resno, California, for D efendantAppellee.

N o appearance for Defendants-Appellees The GEO Group, I nc. and Manag ement & Training Corp.E D I S O N V

. U N I T E D S T A T E S 5

OP INION

TASHI MA, Circuit J udg e:

Plaintiffs are two p risoners housed at Taft Correctio n al I nstitution (“Taft”), the only federally

- o wned and contractoroperated prison in the country

. I n 2003, Taft w as struck b y

an outbreak o f coccidioidom y c o sis (“cocci”), colloquially referred to as “Valley F ever.” I n most individua l s , c o cci manifests primarily a s a mino r f e v e r

. I n an unlucky few, however, the di s e ase takes a different, more devastating

course – it causes a number o f painful conditions, a nd can be fatal. Plaintiffs, along with a n unprecedented number o f other prisoners, contracted c o c ci while incarcerated at Taft. B oth developed the more dang erous form.

Plaintiffs assert, u nder the F ederal Tort C l a i ms A ct (“F TCA”), that the United States breached its duty to protect them from harm. T he F TCA holds the g overnment liable for i t s torts to the same ex tent as a p rivate individual in similar circumstances. B ut the g overnment’s liabilit y u nder the F TCA is limited. The g overnment can n o t b e held liable for torts committed by its independent contractors; according ly
, the district court l a c k s jurisdiction to entertain such claims. Nevertheless, the indepe ndent contractor ex ception is not a complete bar to liability

any time the U nited States e mploy s

an independent contractor

. Some duties of care a re nondeleg able; o t h e rs are retained by the g overnment, if not deleg ated. H ere, the federal g overnment retained some of its duties to Taft prisoners. The independent c ont r a ctor

ex ception to the F TCA does not bar Plaintiffs’ c laims alleg ing a breach of those duties the United States retained.E D I S O N V

. U N I T E D S T A T E S 6

The d istrict court g ranted th e go v ernment’s motions to dismiss for lack of subject-matter jurisdiction, F ed. R. Civ. P. 12(b)(1), under the independent c ontractor ex ception to the F TCA, 28 U.S.C. § 2671. Plaintiffs timely appeal. W e have jurisdiction under 28 U.S.C. § 1291, and we reverse.

I.

Taft i s located in California’s southern San J oaquin V a l ley

. Althoug h the F ederal B u reau of Prisons (“B O P ” ) owns Taft, independent contractors operate the prison. This
arrang ement is unique within the B OP.

I n 1997, Wa c k e n

h u t C o r r e c t i o n s Corporation, now known

as The GEO Group, I n c

. (“GEO”), was awarded a ten-y e ar contract to operate T a ft. I n 2007, the B OP awarded a similar
contract to Manag ement & Training Corporation (“MTC”). MTC continues to operate Taft pursuant to its c o ntract with the B OP. B oth contracts assig ned to the contra c tor the day

to-day operations o f the prison, including the maintenance o f b u i l d ing s and the provision of medical c are. A BO P employ e e who worked at Taft confirmed that “ [ n ] o B OP

e mploy e e was responsible for inmate safety and secu r i t y , building and g roun d s m a i n t e n a n c e , s a n i t a tion, health services, inmate orientation, inmate education, inmate recreation, inmate employ

ment, inmate discip l ine, or any other aspect” of Taft’s d ay -to-day operations. Yet, both contracts also reserved to the g overnment th e r ig ht to construct new building s, e x pand ex isting b uilding s, and modify or add to the mechanical or utility

sy stems of ex isting building s.E D I S O N V

. U N I T E D S T A T E S 7

A. Outbreak at Taf

t

I n 2003, an epidemic of coccidioidomy cosis struck Taft. Cocci is an infectious disease caused by inhalatio n o f C o c c i dioides immitis
, a f

ung us that lives in the San J oaq u i n Valley soil. According to the Center for Disease Control a nd Prevention (“CDC” ), “[ s] y mptomatic coccidioidomy cosis, which occurs in approx imately 40% of all infection s , has a wide clinical spectrum, including mild influenz a-like illness,

severe p neumonia
, and d isseminated disease.” 1 The disseminated f

orm of the disease – that is, when the f ung us spreads from the lung s to the body ’s other orga n s

– is the

m ost serious. Disseminated cocci may cause mil i a r y t u b e rc u l o s i s , b o n e a n d j o i n t i n f ec t i o n s ( i n c l u d i n g osteomy elitis), skin disease, soft tissue abscesses, a nd mening itis. I n some cases, surg ery may be the only available
treatment. The antifung al F luconaz ole is effect i ve ag ainst most cocci infections, but it is a d aily treatment that must be continued for the rest of the patient’s life. I ndivid u a l s o f certain races, especially African-Americans and F ilipi nos, a re at sig nificantly hig her risk of contracting disseminated cocci than the r est of the population. I f left untreated and allowed
to progress to mening itis, the disseminated form o f the disease is uniformly fatal.

Taft is loca t e d i n a reg ion with one of the hig hest concentrations of the cocci f ung us. I n 2 003, the number o f prison er s infected at Taft reached epidemic numbers. I nfections re p o r tedly more than doubled between 2003 a nd 2005. The warden of Taft admitted there were “mo r e c a s e s

1 S ee Mo rb id i ty a n d Mo rta l ity W eekly Rep ort: Co ccid io id o myco si s

– Ca lifo rn ia

, 1 9 9 1– 1 9 9 3
, Ctr. f o r Disease C o n t

ro l & P rev en tio n (J u n

. 1 7
, 1 9 9 4 ), h ttp : //w

w w .cd c.g ov /m

m w r/p rev iew /m m w rh tm l/0 0 0 3 1 4 5 3 .h tm

.E D I S O N V

. U N I T E D S T A T E S 8

o f d iag nosed Valley F ever [ a t Taft] than in all other fede ra l prisons combined.” Several p ris o n e rs subsequently develop ed the disseminated f orm o f the disease, and at least one died.

B. The Of

f icial Response

I n response to the outbreak, the B OP contacted the CDC. Tog ether, the ag encies were to develop a plan addressing the epidemic at Taft. Plaintiffs presented evidence that, althoug h the orig inal plan included p rotocols for prevention, in addition to diag nosis a

nd treat m e n t , the B OP subsequently

r e v e r s ed course, abandoning its prevention efforts to focus

ex c lusively on early diag nosis and treatment. Ex cept for a small population of uninfected but immunocompromised prisoners, the f

inal policy provided for only those individuals already infected with cocci. W h ile formulating this poli c y , B OP officials sent an internal email requirin g t h a t a ll CDC and B OP employ ees coordinate p olicy effort s t h roug h the office of the B OP’s medical team. The B OP spec i f i c ally

ex c luded its contra c t o rs f rom participating in p olicy development, mandating that “all CDC and B OP employ ees

cease discussions with o ther p arties (including any third-party
contractors

. . . ).” Fo r p r i s o ners who d evelop any form o f cocci, including disseminated cocci, w hile incarcerated, The B OP provides no post-release medical care.

The B OP’s contractors also took action. Around 2003 o r 2004, GEO increased the frequency of various maintenance
prog r ams. GEO assig ned prisoners to dust more r e gu l a rly
, wipe down the walls in t h e dormitories, and vacuum the overhead sprinklers where d ust could accumulate. I n addition, air fil t e r s in the v entilation sy stem were replaced

more frequently

. GEO closed the recreation y ard on w indyE D I S O N V

. U N I T E D S T A T E S 9

day s, because on those day s the fung us be c omes airborne, increasing

the risk of infection.

Ac c o r d i n g to its contract with the B OP, GEO was also responsible f

or providing healthcare to infected prisoners. According ly
, GEO distributed information sheets abo u t c o c ci
to prisoners at the Health Services U nit. Star t i n g in 2004, GEO also posted fly ers describing cocci and its sy mptoms on bulletin b o ards outside the b athrooms in p r isoner housing units. The fly ers advised priso n e r s t o report to the Health Services U nit if they beg an to ex perience sy mpt o ms. After taking o v er Taft’s o perations in 2007, MTC created a written protocol for the intake, screening
, and treatment of prisoners admitted to t h e h ealth facility with sy mptoms of cocci. The protocol, however, did not address prevention.

C. The Edison a nd Nuwintore Litigation

On September 21, 2 005, Plaintiff-Appe l l ant Greg ory Edison, an African-American man, was sentenced t o serve 198 months in federal prison. The B O P a s s i g n e d E d ison to Ta f t

. H e was diag nosed with c o c c i on October 3 0, 2010. Edison alleg es that h e w a s in g ood health prior to his assig nment to Taft and h ad not previously b e e n e x p osed to the disease.

On J uly 5, 2011, Plaintiff-Appellant Richard Nuwintore, also an African-American man, wa s sentenced to serve 14 months in federal prison. The B OP assig ned Nuwintore to Taft. Nuwintore was d iag nosed with disseminated c o c ci in September 2011. L ike Edison, Nuwintore alleg es that he was in g ood health prior to hi s a s s i g nment to Taft and was not previously

ex posed to the disease.E D I S O N V

. U N I T E D S T A T E S 10

I n 2012, Edison filed suit ag ainst the United States a nd its independent contractors, GEO and M T C, in the Eastern District of California. He soug ht damag es for personal injury

as a r e sult of contracting cocci while incarcerated at Taft. Edison alleg ed three clai ms ag ainst the United States under the F TCA. He alleg ed that the B OP had failed: ( 1) to warn Edison adequately o f t h e dang ers presented by cocci; ( 2) to provide Edison with a safe and habitable p r i s o n when it
neg lected to implement vario u s preventative measures; a nd (3) to d evel o p a n d implement an adequate response to the cocci epidemic. 2 The United States f iled a motion to dismiss for lack of subject matter juri sdiction, arg uing that the F TCA’s indep e n dent contractor ex c eption barred Edison’s suit. The district court g r anted the motion. Edison
, 2 013 W L 4828579, at *6.

2 T h e th ird claim

in Ed i so n ’ s co m

p lain t alleg es th at th e B OP “ f ailed to p ro v id e su itab le q u arters an d p ro v i d e f o r th e p ro tectio n , saf

ek eep in g , care,

an d su b s isten ce” o f Ed iso n as req u ired by 1 8 U.S.C. § 4 0 4 2 (a). Bu t in h is

o p p o sitio n t o th e Un ited States’ m o tio n to dism iss, Ed iso n ap paren tly
g lo ssed th is claim to en co m p ass t h e B OP ’ s f

ailu re, in c o n c e r t w ith th e CDC, to d ev elo p a p rev en tio n p ro g ram to p ro tect p riso n ers w

h o h ad n o t
y et co n tracted co cci. On ap peal, Ed i s o n ch aracterizes th e g ro u n d s f or liab ility as: (1 ) f

ailu re t o w arn ; (2 ) f

ailu r e t o m o d if

y stru ctu res; an d (3 ) f ailu re to de v e lo p an d im

p lem en t an ad eq u ate resp on se to th e co cci
ep id em ic. T h e d istrict co u rt did n o t ad d ress th is d iscrep an cy , see Ed iso n

v. Un ited S ta tes , No

. 1 :1 2

- CV- 0 2 0 26

- A W I, 2 0 13 W L 4 82 8 5 7 9, at * 1, * 5 (E.D. Cal. Sep t

. 9
, 2 01 3 ), an d th e Un ited States do es n o t co n test Ed iso n ’ s

re- ch aracterizatio n of h is t hird claim o n ap p eal. T h eref o re, w e treat th e th ird claim as alleg in g a n eg lig en t f ailu re to dev elo p an d im

plem en t an ad eq u ate resp o n se to th e co cci ep i d em i c

. O n rem an d
, th e d istrict co u rt sh o u ld g ran t Ed iso n leav e to am en d h i s co m p lain t ac c o rd in g ly

. S

ee Ch u da co ff v

. U n iv. Med

. Ctr. o f S

. Nev.
, 6 4 9 F.3 d 1 1 4 3
, 1 1 5 2 (9 th Cir. 2 0 1 1 ) (n o t in g leav e to am en d “ sh o u l d [b e] f reely g iv e[n ] w

h en j u stice so

r e q u i res

. . . t o f

acilitate d ecisio n o n th e m erits, rath er th an o n t h e p lead in g s o r tech n icalities” ( alteratio n s in o rig in al) (in tern al q u o tatio n

m ark s an d citatio n s o m itted )).E D I S O N V

. U N I T E D S T A T E S 11

Nuwintore filed suit ag ainst the United States and MTC, also in the E astern District of California, alleg in g the same three claims as Edison. Once ag a in, the United States moved
to d i s m i ss f

or lack of subject matter jurisdiction u nder the F TCA. The mag istrate judg e, to whom the matt e r was referred, ag reed with the district c ourt’s conclusion in Edison that the independent contractor e x ception barred jurisdiction. Nuwintore v. United States
, N o. 1:13-CV-00967-AW I
, 2014 W L 1 091358, at *9 (E.D. Cal. Mar. 18, 2014). The d i strict
court adopted the mag istrate judg e’s f inding s a n d recommendation in full and g ranted the United States’ motion
to d ismiss. Nuwintore v. United S tates , No. 1:13-CV-00967- AW I , 2014 W L 2174681, at *2 (E.D. Cal. May 23, 2014).

After their claims ag ainst the g o v e rnment were d ismissed, both Edison and Nuwintore m o v e d f or the entry of final judg ment pursuant to F ederal Rule of Civil Procedure 5 4(b). 3 The district court g ranted the motion s

. E dison v. United States
, No. 1 :12-cv-02026-AW I
, 2014 W L 896977, at *6 (E.D. Cal. Mar. 6, 2014); Nuwintore v

. U n ited States
, No. 1:13-CV-0967-AW I
, 2014 WL 7335215, at *3 ( E .D. Cal. Dec. 19, 20 1 4 )

. Upon entry of the Rule 54(b) final judg ments, Plaintiffs appealed.

II.

I t is undisputed that the BO P ’s independent contractors

are responsible for the day

- to-day operations of Taft. B ut our precedents d o not hold that the United States is absolved o f all liability
, no matter what the inju r y complained of or its
cause, any time it hires an independent c ontractor. T his case

3 Ed iso n an d N u w i n t o r e c o n tin u e to litig ate th eir claim s ag ain st th e in d ep en den t co n tracto rs, GEO an d MT C, in th e d istrict co u rt.E D I S O N V

. U N I T E D S T A T E S 12

r e q uires us to ascertain the b oundaries of the United Stat e s ’ liability wh e n i t has deleg ated some, b ut not all, of its leg al duties to an independent contractor.

A. Standard of

Review

W e review de novo a dismissal f or lack of subject matter jurisdiction under the F TCA

. V a cek v. U.S. Postal Serv.
, 447 F .3d 1 248, 1250 (9th Cir. 2 0 0 6 )

. W e review “[ t] he district court’s finding s of f act relevant to its determination o f subject mat t e r j u risdiction

. . . for clear error.” A u tery v

. United States
, 424 F .3d 944, 956 ( 9 th Cir. 2 0 05) (quoting Ass’n of Am. Med. Colls. v. United States
, 217 F .3d 770, 778 (9th Cir. 2000)).

An a ttack on subject matter jurisdiction may be facial o r factual. “I n a fac i a l a t tack, the challeng er asserts that the alleg ations contained in a complaint are insufficient on their face to inv oke federal jurisdiction. B y contrast, in a f actual attack, the challeng er disputes the truth of the alleg ations that, by themselves, would otherwise invoke f ederal jurisdiction.” Safe Air for Everyone v. Meyer
, 373 F .3d 1035, 1039 ( 9th Cir. 2004). H ere, the United States mounted a factual attack when it filed declarations and affidavits challeng ing Plaintiffs’ alleg ations that the g overnment o wed them a leg al d uty

. The
g overnment arg ued that it h a d deleg ated to private contractors all duties the B OP owed Taft prisoners.

I n r esponse t o a factual attack, Plaintiffs must present “affidavits or any other e vidence necessary to satisfy [ their] burden of establishing that the court, in fact, p o ssesses subject
matter jurisdiction.” Colwell v. Dep’t of Health & Hu m a n Servs.
, 558 F .3d 1112
, 1121 ( 9th Cir. 2009) (citation

o mitted). The district court may look bey ond the pleadi n gsE D I S O N V

. U N I T E D S T A T E S 13

to the parties’ evid e n ce without converting the motion to dismiss into o ne for summary judg ment. W hite v. Lee
, 227 F .3d 1 2 14, 12 4 2 ( 9th Cir. 2 000). I n evaluating the evidence, the c ourt “need not presume the truthfulness of the pla i n t iffs’ alleg ations.” Id. Any factual disputes, however,
must be resolved in f

avor of Plaintiffs. Dreier v. U n ited States , 106 F .3d 844, 847 (9th Cir. 1996).

B. The F TCA’s Independent Contractor Exception

The United States is immune from suit unless it consents to be sued. See Dale h i te v. United States
, 346 U.S. 15, 30 (1953) (citing Feres v

. United States
, 340 U.S. 135, 139 (1950)). The F TCA is a limited waiver of that sovereig n immunity
, under which “the United States is liable to the

same ex tent as a private party for certain torts of federal employ e es

. . . ‘in accordance w ith the law of the place where the act o r omission occurred.’” Auter y , 424 F .3d at 956 ( q uoting 28 U.S.C. § 1 346(b)(1)). The F TCA’s limited waiver of sovereig n immunity ex plicitly e x cludes “any
contractor with the United States” f rom i t s definition o f “[ e] mploy ee o f the g overnment,” 28 U.S.C. § 2 671; this is known as the independent contractor ex ception to the F TCA. Courts have construed the independent contractor ex c eption
to protect t h e U n i t ed States from vicarious liability f or the
neg lig ent acts of its independent contractors. Y anez v

. United States
, 6 3 F .3d 870, 872 n.1 (9th Cir. 1995). “ S i n ce the United States can be sued only to the ex tent that it has waived its immunity
, due reg ard must be g iven to the ex ceptions, including the independent contractor ex cep t i o n, to such waiver.” United States v. O rleans
, 425 U.S. 807, 814 (1976).

The independent contr a ctor ex ception, however, has no bearing on the United States’ F TCA liability for its o wn actsE D I S O N V

. U N I T E D S T A T E S 14

or omissions. “Many cases recog niz e that it is not a defense,
to liability for one’s own n eg lig e n c e in connection with an actor whose conduct injured a third party , t hat the actor was not an ag e nt or an emp l o y ee,” but rather an independent
contractor. Restatement ( T h i rd) Of A g ency § 7.05 (2006). Even where an employ er has deleg ated some responsibilities
to an independent contractor, the employ er may still be h eld separately and directly liable for its own neg lig ence. 4 See Logue v. United States
, 412 U.S. 521, 532–33 (1973). Thus,

a d etermination that the United States has declined to ex ercise control over the day -to-day operations of its c ontractor is not the end of the analy sis. W e must also determine whether P laintiffs have alleg ed a separate nondeleg able o r undeleg ated duty
, which the United States could be h eld directl y liable for breaching

. Only upon a finding that the
g overnment deleg ated its entire duty of ca r e m a y the court dismiss the claim for lack of jurisdiction under t h e F TCA’s independent contractor ex ception.

Here, the district court denied Plaint i f fs’ claims because the B OP deleg ated day -to-day care of T a ft prisoners to GEO and MTC: “MTC was responsible for inmate orientation a nd

4 T h e Nin th Circu it h as p rev io u sly ap p lied th is p rin cip le to h old th e Un i ted S t ates liab le u n d er th e FT CA

. A n ex am p le is th e lin e o f FT CA

cases ap p ly i n g th e “ p ecu liar risk ” d o ctrin e to h old th e g o v ern m en t d irectly liab le f o r its f ailu re to act, d esp ite its d eleg atio n o f saf ety p ro ced u res to an in d ep en den t co n tracto r. S ee Myers v. Un ited Sta tes , 65 2 F.3 d 10 2 1, 1 0 3 4 (9 th Cir. 20 1 1 ); Ya n ez , 6 3 F.3 d at 8 7 2 n .1 (“ Un d er th e FT CA
, t h e Un ited States m ay n o t b e h eld v icario u s ly liab le. Ho w ev e r , [ p e c u liar risk ] liab ility h as b een co n s t r u ed as creatin g d irect liab ility f o r th e g o v ern m en t’ s n on d eleg ab l e d u ty to en s u re th at th e co n tracto r em p lo y s p ro p er saf

ety pro ced u res.” (citin g McCa ll v. Un ited S ta tes , 9 1 4 F.2 d 1 9 1
, 1 9 4 (9 t h Cir. 19 9 0 ))); McGa rry v. Un ited S ta t es , 5 4 9 F.2 d 5 8 7
, 5 9 0 (9 th Cir. 1 9 7 6 ).E D I S O N V

. U N I T E D S T A T E S 15

health, and warned inmates reg a r ding t h e r isks of [ cocci]
, ” while the B OP “was not responsible f or maintenance, sanitation, h ealt h services, health education or inmate orientation.” Nuwintore , 2014 W L 1091358, at *9. That is, the B OP did not attempt to supervise or control GEO/MTC in performing the day -to-day t a s k s of running a prison. Id. B ased on the for e going
, the district court concluded that the independe n t c o n t

r a c t o r e x c e p t i o n p r evented it from ex ercising jurisdiction over Plaintiffs’ claims under the F TCA.

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 U n i ted States vicariously liable for t h e ac ts or omissions o f GEO/MTC. Rather, Plaintiffs seek to hold the United States directly liable for its f ailure to take a ction in response to the cocci epidemic,

o utside the scope of its relationship with GEO/M T C

. Plaintiffs rely on a duty of the United States that arose before they a rrived at Taft, which could not have been deleg a ted in

a practical sense; they point to other duties r e tained by the United States, which accrued after th e i r arrival, and were separate from the day -to-day respons i b i l i ties that the parties
ag ree were deleg ated to GEO/MTC. The district court erred i n i t s independent c ontractor analy sis when it failed t o address these arg

uments.

C. The United States’ Direct Liability

W h ether t h e U n ited States may be held liable under the F TCA for i t s o w n acts or omissions is a three-step inquiry

. F irst, we decide whether state law, in this cas e , 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 e x tent o f the United States’ liability under the F TCA isE D I S O N V

. U N I T E D S T A T E S 16

g enerally determined b y reference to state law.” Liebsack v. United States
, 731 F .3d 850, 855 ( 9 th Cir. 2 0 13) (quoting Molzof v. United States
, 502 U.S. 301, 305 (1992)). B ecause Taft is located in Californi a, 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 d uty for which it could be held directly liable. See Autery
, 424 F.3d at 957–59 (ex amining contractual lang uag e and p arties’ course of dealing t o d etermine whether the duty was deleg ated); McGarry
, 549 F

. 2d at 588 (describing contractual lang uag e and parties’ past practices). F inally
, even if it appears that the
g overnment deleg ated all of its d uties to the independent
contracto r , we a sk whether California law imposed any nondelegable duties on the g overnm e n t

. Y anez , 63 F .3d at 874–75 (holding United States had nondeleg able duty under California law); McGarry
, 549 F

. 2d at 590 (holding United States had nondeleg able duty under Nevada law).

I n this case, California law imposes a g eneral duty of care

on the U nited States as a landowner. Se c t i on 1714 of the California Civil Code sets forth t h e b asic p o licy g overning landowner liability

in Califonia. I t states, in relevant part:

E v e ry one is responsible, not o nly for the result o f his or h er willful a cts, but also for an injury occasi o n e d to another by his or her
want of ordinary care or skill in the
manag ement of his or her property or person,

ex c e p t s o far as the latter h as, willfully or b y want of ordinary c are, b roug h t the injury upon himself or herself.E D I S O N V

. U N I T E D S T A T E S 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)).

I n California
, landowners must act reasonably in the
manag ement of their property , wi t h a n awareness of “the probability of inju r y t o o t h ers.” Id. The state employ s a strong presumpti o n i n favor of finding that landowners, a nd indeed al l persons, h ave a duty to use o rdinary care to prevent in

jury to others: “[ I ] n the absence of a statutory provision establishing an ex ception to the g ene r a l rule o f C i v i l Code § 1714, courts should create one only whe r e ‘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 A lth o u g h b ro ad
, th is b asic p o licy i s n o t w ith o u t its l im its. In Ro wla n d
, th e Calif o rn ia Su p rem e Co u r t i n d icated sev eral f acto rs th at, “ w

h en b alan ced to g eth er, m ay j u stif y a d ep artu re f

ro m ” th e g en eral d u ty o f care im p o s ed b y § 1 7 1 4

. S

ee Ca b ra l
, 2 4 8 P .3 d at 1 1 7 4

. Fo rem o st am o n g th e Ro w la n d f

acto rs are th e f

o reseeab ility o f th e h arm an d th e b u rd en to th e d ef en d an t

. Ca mp b ell v. Fo rd Mo to r Co

. , 1 4 1 Cal. Rp tr. 3 d 3 9 0
, 4 0 4 (Ct. A p p. 2 0 1 2 ), a s m o dified o n d en ia l o f reh ’g (J u n e 19
, 2 0 1 2) (q u o tin g Va sq u ez v. Resid

en tia l In v., In c. , 1 2 C al. Rp tr. 3 d 8 4 6
, 8 5 4 n .5 (Ct. A p p

. 2 0 0 4 )).

T h ese ex cep tio n s n o tw ith s tan d i ng , Calif o rn ia h as h isto rically h eld th at § 1 7 14 g iv es rise to a d u ty o f care in a w id e ran g e o f

circu m stan ces. In Kin sma n , th e Calif

o rn ia Su p rem e Co u rt im

p o sed a d u ty o n lan d o w

n ers

w h o h i re in d ep en d en t co n tracto rs to w arn i n v itees “ o f a laten t or

co n cealed p re- ex i stin g h azard o u s co n d itio n o n [th e] p ro p erty ,” w h i ch th e lan do w n er k n ew o r sh o u ld h av e k

n o w n ab o u t. Kin sma n , 1 2 3 P .3 d at 9 3 3

. In S p rech er v. Ad

a mso n Co

. , 6 3 6 P .2 d 1 1 2 1 (Cal. 1 9 8 1 ), th e co u rt ap p lied Ro wla n d to i m

p o se a d u t y o f reaso n ab le care o n lan d o w n ers to p ro t ect

ev en in d iv id u als in

j u red o f f

- p ro perty f ro m n atu ral h azard s. Id

. at 1 1 2 8.E D I S O N V

. U N I T E D S T A T E S 18

Plaintiffs alleg e that the United States, acting throug h the B OP, owed three specific duties to T aft prisoners. Firs t , Plaintiffs arg ue the United States had a duty to warn prisoners about c occi. Second
, Plaintiffs arg ue the United States had a duty to implement preventative measures to protect prisoners – particularly

those with a heig htened risk of developing the disseminated form of the d isease – from contracting cocci. Third
, Plaintiffs a

r g ue that by specifically ex c lu ding its independent contractors from e fforts to d evelop a prevention policy in partnership with the CDC, the United States retained

a duty to ensure the policy adequately protecte d p risoners from harm. W e analy

z e each of these claims in turn.

1. Duty to Warn

A l thoug h GEO and MTC provided some warning s t o Plaintiffs in the f

o r m of fly ers posted around the prison, the B OP itself never issued any w arning s to prisoners reg arding the risk of contracting cocci a t Taft. I n Cali fornia, landowners may be held liable f or a failur e t o warn invitees of hidden dang ers where “(1) defendant [ landowners] knew

or reasonably should have k nown o f a concealed, p reex isting haz a rdous condition on their premises; (2) plaintiff

. . . did
not know and could not reasonably a s c e rtain the condition; and (3) defendants f

ailed to warn plaintiff.” Gravelin v

. Satterfield
, 132 Cal. Rptr. 3d 913, 919 (Ct. App. 2011) (citing Kinsman
, 1 2 3 P

. 3d at 940). B e cause cocci poses a hidden dang er that Plaintiffs could not reasonably ascertain on their
own, the United States had a d uty to warn Plaintiffs o f cocci’s risks prior to their transfer to Taft.

I n the district court, Plaintiffs presented uncontroverted evidence that the B OP knew Taft p risoners had an increased risk of cocci ex posure a

nd infec t i on at least as of the lateE D I S O N V

. U N I T E D S T A T E S 19

1990s. Y e t until GEO/MTC passed that information on to prisoners, it is hig hly unlikely t h a t P laintiffs c ould have known about the increa s ed likelihood of contracting cocci
t here, let alone the h eig htened dang er facing Afri c a n

American, F ilipino, and immunocompromised individuals. A fung us that resides in the soil of the San J oaquin Valley
, cocci is invisible a n d scentless; individuals are ty pically infected by breathing in dust, especially in windy conditions. Cocci is a classic ex ample of a h idden dang er, and the United States had a duty

to warn Plaintiffs about it. 6

To prove that the district court had jurisdiction over their claims, Plaintiff

s m u s t also show that the United States did
not deleg ate its duty of care. Here, the Uni ted States could
not have deleg ated its duty to warn Plaintiffs for a s i mple

reason: GEO a

nd MTC have no power to assig n prisoners o r t o p r o tect any prisoners h oused outside of Taft. Thus, e v e n if the United States could have deleg ate d i t s d uty to warn Plaintiffs once they arrived at T a ft, it was no t p ractically possible to deleg ate that portion of the g overnment’s duty arising prior to Plaintiffs’ transfer to Taft. W e conclude that the independent contractor ex cept i o n d id not bar the district
court f r om ex ercising jurisdiction o ver that p ortion o f Plaintiffs’ failure t o warn claim covering the period of time prior to Plaintiffs’ transfer to Taft. B ecause the United States could not have deleg ated this duty to GEO/MTC, our inquiry ends at the second step of the analy sis.

6 T h e im

po rtan c e o f t he d u

ty is m ad e clear b y assessin g th e

co n seq u en ce s o f b reach : T h e U n ited States’ f ailu re to w arn P lain tif

f s ab o u t co cci p rio r to tran sf er lik ely k ep t th em f

ro m tak in g an y p rev en tativ e actio n to p ro tect th em selv es. P lain tif f s w ere d ep riv ed o f t

h e op p ortu n ity
to req u est tran sf

er to a d if f eren t f acility or t o se e k altern ativ e p l acem en t

v ia th e B OP ’ s ad m in istrativ e g riev an ce p ro ced u res.E D I S O N V

. U N I T E D S T A T E S 20

2. Duty to Build or Modify Protective Structures

Once GEO/MTC warned Plaintiffs about c o cci, the possibility o f i n f

e c t i o n b e ca m e a k n o w n h a z a r d

. Nevertheless, in California, a landowner’s duty of care d oes

n o t end w ith the requirement to warn individuals of h i d d e n dang ers. California relies o n Restatement (Second) of Torts § 343A to define the d

uties of a possessor of land toward invitees, including those who e ncounter a known d a n ger. According t o the Restatement, “[ a ] possessor of land is not liable to his invitees for phy sical harm caused to them by any activity or condition on the land w hose dang er is known o r

o b v i o u s to them, unless the possessor should anticipate the harm despite such knowledge o r obviousness .” Restatement (Second) of T orts § 343A(1) (1965) (emphasis added). The California Supreme Court h as e x p an ded on this principle,

e x plaining that “[ t] here may be situations

. . . in which a n obvious haz ard, f

or wh i c h no warning is necessary , nonetheless g ives r ise to a duty on a l a ndowner’s part to remedy the haz ard beca u se knowledg e of the haz a rd is inadequate to prevent injury .” Kinsman
, 123 P.3d a t 939. At Taft, even once Plaintiffs had b een warned about c occi – a nd the haz a r d therefore became an “obvious” or k n own one

– Plaintiffs’ knowledg e alone m a y not have been sufficient to prevent infection. As a landowner, the B OP had a duty to protect Taft’s prisoners from cocci to the ex tent that they could not protect themselves.

That the United States had a d uty to protect Plaintiffs is further bolstered by Califor n ia’s recog nition of a special relationship between jailers and prisoners. The state imposes

a heig htened duty of care o n jailers, due to prisone r s’ increased vulnerability while incarce r a ted. Giraldo v

. Cal. Dep’t o f Corrs. & R ehab.
, 85 Cal. Rptr. 3d 371, 382–88 (Ct.E D I S O N V

. U N I T E D S T A T E S 21

App. 20 0 8); see also Lawson v. Superior Court
, 103 Cal. Rptr. 3 d 834, 849–50 (Ct. App. 2010). 7 T he very fact of their incarceration means that prisoners are often he l p l e ss to protect themselves from harm. Restatement (Second ) o f Torts § 320 cmt. b. (1965). W hile 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, t h e s a me r ationale also supports recog nition of the special r elationship in the contex t o f environmental haz ards endemic to the prison itself. I ndeed, because prisoners have

so little control over their living quarters or daily schedules whil e i n c arcerated, they may be just as helpless to protect themselves from environmental h az ards like cocci as they a re to protect themselves from third parties.

As prisoners, Plaintiffs w ere p a r ticularly vulnerable to infection: Even if Plaintiffs had been warned of the disease, they were unable to move to a different location, remodel
t h e i r living quarters, or erect protective structures, such a s covered walkway s. Thus, by placing pr isoners at T aft, the B OP directly increased Plaintiffs’ risk of h arm. Under Ca l i fo r n ia law, the United States had a duty to protect Plaintiffs from the risk of contracting cocci.

Under the second step o f the analy sis, we ask whether the United States deleg at e d its duty to p rotect Plaintiffs from cocci. To be sure, the United States deleg ated the day -to-day

7 W h i le th e j ailers in Gira ld o an d La wso n w ere g ov ern m en tal acto rs,

n o th in g in t

h e co u rt’ s ratio n ale w o u ld p reclu d e th e ap p licatio n o f t h e sam e p rin cip le t o n o n

- g o v ern m en tal, i.e.
, p riv ate- p arty , j ailers, su ch as GEO/MT C

. Cf. La Ba r

ge v. Cty. o

f Ma rip o sa , 7 9 8 F.2 d 3 6 4, 3 6 7 (9 th Cir. 1 9 8 6 ) (“ B ecau se th e f

ed eral g o v ern m en t co u ld n ev er b e ex actly lik e a p riv ate acto r, a co u rt’ s j ob i n ap ply in g th e [p riv ate p erso n ] stan d ard is to f in d th e m ost reaso n ab l e an alo g y .”).E D I S O N V

. U N I T E D S T A T E S 22

supervi s ion and maintenance of Taft to its contractors. I ndeed, once it becam e clear that T aft was ex periencing a cocci epidemic, both GEO and MTC implemente d c ertain responsive measures. I n addition to increasing the frequency of maintenance tasks like dusting and chang ing air filters, GEO/MTC posted fly e rs warning prisoners that they were at risk of contracting cocci. Nevertheless, the preventative

measures taken by the in d ep e n dent c ontractors w ere not sufficient to satisfy

the B OP’s own d

uty to protect prisoners under California law.

Plaintiffs a ssert that in addition to day -to-d a y measures, the United States had a duty to build or modify structures to reduce prisoners’ ex posure to the c occi-laden dust of the San J oaquin Valley

. Sp e c i fically
, Plaintiffs claim that construction of covered walkway s could have protected them from ex posure to the dust. And w hile the B OP deleg ated
most day -to-day

activities to GEO/MTC, the B OP ex pressly reserved at least one rig ht to itself: the rig ht to construct new b u i l ding s o r modifications of or additions to ex isting building s. T he United States’ contracts w ith GEO a nd MTC
st a t e that “[ n] o modifications or a d ditions to ex isting building s, mechanical or utili ty sy stems shall occur (other than r outine maintenance or r e placement o f components) without prior approval o f the [ g overnment] .” F u rther, “[ t] he
g overnment reserves the rig ht to construct additional building s on its property a n d / or e x pand the capacity o f

ex isting building s. The contr a c t o r shall cooperate to the fullest ex te n t possible should the g o vernment ex e rcise this rig ht.” 8 The plain lang uag e of the contract indicates that the

8 A lth o u g h b o t

h co n tracts w i th GEO an d MT C w ere f iled in th e d istrict

co u rt u n d er seal, t

h e p ro v isio n s o f th e co n tracts h av e been ref erred to an d
q u o ted rep eated ly in t

h e p lead i n g s an d b rief

s fi l e d b y th e p arties o n th eE D I S O N V

. U N I T E D S T A T E S 23

BO P retained control over construction at Taft, whi c h presumably would include the con struction of covered walkway s, or the construction o f other p reventative structures

on t h e l a n d

. I n retaining this power, the B OP also retained the d uty to construct such structures, should it become
necessary to do so. To the ex tent that Plaintiffs alleg e that the B OP was neg lig ent in failing to construct covered walkway s

or other protective structures, the independent co n t ractor

ex c e ption to the F TCA does n ot bar the district c o u r t f r o m

c o nsidering their claim. The a naly sis can be resolved a t t h e second step. The g overnment may b e held directly liable for its failure to act.

3. Duty to Develop an Adequate Cocci Prevention Policy

F inally
, the B OP had a duty
, under the larg er umbrella o f its duty to protect Plaintiffs from c occi, to d e velop a preventative policy responsive to the c occi o ut b r e a k. 9 A s previously discussed, the B OP had a duty
, as a landowner a nd jailer, to protect vulnerable prisone r s i n its charg e from foreseeable harm, b ecause p risoners 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

p u b lic reco rd

. T h e Co u

rt, t h e r e fo re, d eem s th ese p ro v isio n s of th e

co n tracts as tan tam o u n t to h av in g b een u n sealed b y co n sen t

.

9 Wh ile w e are, of co u rse, aw are t h at th e FT CA in clu d es a d iscretio n ary f u n ctio n ex c e p t i o n , see 2 8 U.S.C. § 2 6 8 0 (a); Un ited S ta tes v. Ga u b ert , 4 9 9 U.S. 3 1 5 , 3 2 2 (1 9 9 1 ), th is ex cep tio n w as n ot in v o k ed b y th e Un ited States in its m o tio n s to d ism iss. W e th eref o re do n o t reach th e issu e an d

ex p ress n o v iew o n i t b e cau se i t w as n eith er raised n o r b rief ed b y th e p arties.E D I S O N V

. U N I T E D S T A T E S 24

ex p eriencing an outbreak of cocci, the B OP beg an to work with the CDC to develop a p olicy for the prevention a nd
treatment of cocci in prisoners. This w as consistent with its du t y a s a landowner and jailer under California law. I n the instant case, not only was the harm – the likelihood o f infection absent preve n t a t i ve measures – foreseeable to the B OP, but the B OP a ctually took preliminary steps to ex ecute its protective d u t y

. Thus, the B OP’s status as a landowner

an d jailer g ave rise to a duty to protect Taft prisoners from harm, including by developing an adequate cocci prevention policy

. Althoug h the United States deleg ated the g eneral duty to

oversee healthcar e at Taft to GEO/MTC, its actions make clear t h a t i t chose to retain the specific duty to develop a policy for the p revention a nd treatment of cocci. Plaintiffs presented evidence in the district court t h a t the B OP took upon itself the task of d eveloping a policy in response to the cocci outbreak. The B OP also w ent a s t e p fu rther, specifically directing that its contractors be ex c luded from development of this policy . I n so doing
, the B OP ex pressed its intent to retain control over this as p e c t of its duty

. See Y a nez , 63 F .3d at 875 ( f i n ding jurisdiction under F TCA where g overnment failed to e x e rcise retained rig ht to order

c o r r e ction of safety violations). Thus, the independent
contractor ex ception to the F T CA d o e s n o t b ar the district
court from ex ercising jurisdiction over Plaint i f fs’ third claim. 1 0

10 A s w ith th e d u ties d iscu ssed

ab o v e, w e n eed n o t d ecid e w h eth er th is d u ty w as n o n d eleg ab le becau se th e Un ited States ex p ressly retain ed a relev an t p o rtio n

o f its d u ty to P l ain tif

f s.E D I S O N V

. U N I T E D S T A T E S 25

III.

Plaintiffs have met their b u r den to show that the independent contractor ex ception does not bar the dist rict court’s subject matter jurisdiction under the F TCA. The
g overnment owed a d

u ty o f care to Plaintiffs under California law, which g enerally assumes that landowners have a duty to

ex e r cise reasonable care in the ownership and manag ement o f property

. I n this c ase, the g overnme n t’s d uty was underscored by the special relationship that California
recog niz es between jailer and prisoner.

T h e B OP’s duty to warn prisoners before transferr i n g them to T aft arose outside of the s cope o f its contractor relationship with GEO/MTC, and the r efore is not barred b y the independent contractor ex ception. F urther, the B OP did
not deleg ate all of its duties to GEO/MTC, even once prisoners arrived a t Taft. I nstead, i t r e tained both the

ex c lusive rig ht to construct n ew building s and the ex clusive rig ht to make modifications to ex isting building s. The B OP also ex plicitly ex cluded its contractors from p a r t icipating in the development of a cocci p reventio n policy

. As to these claims, the independent contractor ex ception to the FT CA does not bar the distr i c t c ourt’s ex ercise of subject matter jurisdiction. 1 1

I n each of these cases, the district court’s d i s m i s s al o f Plaintiffs’ complaints under the independent contractor

e x c eption to the F TCA is reversed to the ex tent dismissal i s inconsistent with this opinion, and these cases are remanded

11 O n rem an d
, th e d istrict co u rt sh o u ld g ran t P lain tif f s leav e t o am en d th eir co m p lain ts to co n f

orm to th is Op in io n

. S

ee f o o tn ote 2
, su

p ra

.E D I S O N V

. U N I T E D S T A T E S 26

t o t he d istrict court f

or further proceeding s consistent w i t h this opinion.

REVERSED and REMANDED.