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U.S.A. Is Liable for Valley Fever in Prison

SAN FRANCISCO (CN) - The Ninth Circuit ruled Friday that two prisoners may sue the federal government for transferring them to a California prison riddled with the debilitating disease valley fever.

Gregory Edison and Richard Nuwintore contracted coccidiodomycosis, or valley fever, at Taft Correctional Institution, north of Bakersfield, whose warden acknowledged had more cases of the disease "than in all other federal prisons combined," Judge A. Wallace Tashima wrote for the three-judge panel.

Valley Fever is an infectious disease caused by inhalation of a fungus that lives in the soil, particularly in the San Joaquin Valley. It can linger for a long time, and can progress to tuberculosis, meningitis and death.

It can be treated with Fluconazole, "but it is a daily treatment that must be continued for the rest of the patient's life," Tashima wrote. "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."

A 2003 epidemic killed at least one prisoner at Taft, which is owned by the federal Bureau of Prisons but run by private prison contractors.

Edison and Nuwintore sued the United States, the Geo Group and Management and Training Corp. under the Federal Tort Claims Act in 2012, claiming the government failed to warn prisoners about the disease, or respond to the outbreak.

A federal judge dismissed for lack of subject matter jurisdiction, but the Ninth Circuit reversed, finding that 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."

Tashima found that California law imposes a "general duty of care" upon landowners, in this case, the Bureau of Prisons, and that landowners "must act reasonably in the management of their property, with an awareness of the probability of injury to others."

"As a landowner, the BOP had a duty to protect Taft's prisoners from cocci to the extent that they could not protect themselves," Tashima wrote.

"The very fact of their incarceration means that prisoners are often helpless to protect themselves from harm."

Tashima said the government may be held directly liable for its failure to respond properly to the epidemic, and had a duty to develop a preventative policy after the outbreak.

The Ninth Circuit reversed and remanded.

Ian Wallach, who represented the prisoners, called the ruling a "solid decision" in an email.

"The Ninth Circuit recognized that jailers have a special relationship to protect inmates against known harms, and that inmates, during their incarceration, are weak and vulnerable," said Wallach, who is with Feldman & Wallach in Santa Monica.

"If we, as a society, are to take away the liberty of others, we must act responsibly while they are in our care."

A Department of Justice representative said Friday, "The United States received the decision today and is reviewing it."

Thirty-two lawsuits in California have been filed in the past two years by inmates with valley fever, according to the Courthouse News database.

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