Q&A: Ian Wallach ’99 on today’s 9th Circuit reversal of the District Court’s dismissal of inmates’ claims in the consolidated cases of Edison v. USA and Nuwintore v. USA

Ian Wallach ‘99

This morning, in the consolidated cases of Edison v. USA and Nuwintore v. USA, which is attached, the 9th Circuit reversed the District Court’s dismissal of these inmates' claims. The Court provided a detailed history of the valley fever epidemic and its lifelong injury, and its heightened risk for inmates of African and Filipino descent.

Over 40 inmates of African Descent have died from Valley Fever in the past 7 years. Over 800 are infected and require lifelong care. The bulk are in the state system, and this opinion is limited to those infected in the Federal facility (Taft). But it is a great decision, and a just decision, that followed a callous dismissal of their claims.

The Court agreed that the USA can be liable for such claims on three separate grounds — 1) failure to warn inmates of the disease; 2) failure to take preventative measures (including building structures to decrease risk of exposure); and 3) failure to properly respond to the epidemic.

The decision can be accessed — in PDF — here —


Petitioner Richard Nuwintore with his attorneys,
Ian Wallach and Jason Feldman, after their Ninth Circuit victory

Professor Aviram: First of all, how are the plaintiffs doing now, health-wise? Is their condition reversible, and how are they cared for now?

Wallach: Valley Fever is not curable. Disseminated Valley Fever requires life-long care.

Richard Nuwintore is sick. He is on Obamacare and assured his medicine (fluconazole) for a few more months. He is too tired to work (because of the illness). I spoke to him today. Gregory Edison will be released shortly. He is sick and, upon his release, will have no access to medical care aside from Obamacare.

Walk me through the ownership/operation structure of Taft. I understand that Taft is the only federal facility owned by the Government and operated by a private contractor. Why is this arrangement so rare?

Taft is presently owned by the USA, who contracted with Management and Training Corporation back in 2007 to operate the facility. I don’t know why the arrangement is so rare. It did create some novel issues with the application of the independent contractor exception. Colleagues have wondered if it because of the valley fever issue. It may sound like a conspiracy theory, but there are some legitimate concerns. The USA recognized the cocci (another word for valley fever, short for coccidiodomycosis) problem potentially in 1999, and knew some would get ill, and perhaps die. And the USA has less liability if someone else is operating the facility, even though the USA sends people there. And the facility is, for unknown reasons, primarily a pre-deportation facility. That means that people facing low terms, or people about to be deported, are held there. If they get sick, and are deported, there is not much practical legal recourse available. Worse than that — there isn’t much access to medical care. This is why we know of only one fatality from valley fever at Taft, but there may be many more.

Given Taft’s unique status as government-owned and privately operated, would the government’s responsibility in this case extend to private prisons in which the facility is both owned and operated by private contractors? How much government involvement should create responsibility and prevail over the independent contractor exception?

Sure. As to the failure to warn claim. And the negligent implementation of policy claim — if the USA developed and implemented policy. And if the USA reserved control over any aspect of the facility — as it did here with structural changes.

The test, as adopted by the Court, is “is there an independent basis for liability?” If yes, then the claim should stand.

As to your second questions, people have brought challenges, in other contexts, to the independent contractor exception, asserting that the USA asserted so much control that it didn’t really delegate the duties at issue. I have some charts with summaries of cases on this issue I prepared for use in the oral argument (which can be seen here). I should clean them up before circulating them, and today has been busy, but let me know if I should send them along. The standard was too high for us to meet, so we didn’t make that argument on appeal (we did below). And we had some independent bases for liability, which we felt was the right way to go.

Should we be concerned about a potential incentive for the federal government to distance itself from inmates and shift any potential liabilities on the shoulders of private contractors?

Absolutely. And that may be what happened here. Plus privatization of prisons is messy. I understand that there is a private prison in Ohio that successfully petitioned to control parole hearings (and even here, parol boards can consider reports by an inmate’s prison in determining parole). And these corporations have a financial incentive for parole to be denied. That’s flesh-peddling.

This case involved a federal privatized facility, but as we know, state facilities, which are public, are often public only by name, and much of the health care in California state prisons is privatized. Does today’s decision shed any light on questions of liability in this context?

Only to the extent that if you can identify a breach of a separate and distinct duty, and get around any immunity, then your claim should proceed. Today’s case was about federal governmental immunity. This would not apply to private actors (although their attorneys have litigated that it does).

And California has separate immunities. Which are awful. In the class action we have, Jackson v. Brown, where 800 inmates need life-long care, and where 40 inmates died, all as a result of infections at Avenal and Pleasant Valley state prisons, the District Court dismissed the case arguing that qualified immunity protected everyone from 8th Amendment claims, because even if the conduct was “cruel and unusual”, there was no “clearly identified right” at issue. We think it was the right to be housed in a safe facility, but the court claimed it was the right to be in a facility without an excessive amount of valley fever spores, determine by societal standards. That is on appeal.

There is a great case from the Cal. Supreme Court — Giraldo v. Cal. Dep’t of Corrs. & Rehab., 85 Cal. Rptr. 3d 371 (2008), which we relied on and the 9th Circuit expanded upon in today’s decision, that spoke of the Jailer’s duty to inmates, and set forth a special relationship. It’s a great read and a positive expression of the law.

As the sad facts in this case remind us, individuals of certain ethnicities are more prone to certain medical conditions; this is true for valley fever, and also for other diseases and chronic conditions. Would this create an incentive for private prison contractors to refuse inmates of certain ethnicities, because their healthcare would be more complicated or costly? And should we resist such bargaining with regulation?

I am not aware of any vehicle where this could occur. A bidding process is set up to operate a facility, and the bidders know who will be housed there and what is apparently needed, and can request to transfer people away, but no one has to listen to that request. In three other valley fever cases we have, the contractor argued that they had no say in who they accepted, and the injury was the delegation. These cases (People v. Hammond, Sutton, and Aluya) were also dismissed on summary judgment — because the court bought it. This is on appeal too (and you are beginning to see how Eastern District court respond to claims by inmates about valley fever. Add that there are no attorney’s fees provisions, and these are exhausting mid-level tort cases, so few lawyers fight them. Which is why these dangerous practices continue, as there is very little accountability). Regulation is a great idea — but in the interim, I’ll keep suing.

Finally, a big part of today’s decision involved the government’s duty to warn inmates about the medical dangers involved in serving their prison term at Taft. But if inmates have no choice on where they are incarcerated, what lends this duty legal value?

The failure to warn deprived these individuals of four avenues of redress. Had they been warned, they could have done the following:

  • Ask the sentencing judge for a negative housing recommendation (an order that the Judge recommend that this inmate not be housed at Taft). This are not binding, but I have obtained such a request once, and it worked.
  • Seek an administrative remedy to be housed elsewhere, before ever arriving at Taft.
  • Seek an administrative remedy the day they arrive, seeking transfer. Most people are infected within the first few months of arrival, but if they are lucky, they could be transferred out before getting infected.
  • Change their lifestyle while there. This is largely a camp facility with tons of leisure time. Which, if warned, would be better spent inside. And they can choose not to take certain jobs (like those that involve digging or gardening or any contact with soil). They can wear N95 filtration masks if they wish. And these changes may greatly decrease their exposure.

Thank you. This is an important decision teasing out the public-private divide in incarceration, which is often more malleable than public discourse would have us think.

Thanks so much for making people aware.



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