                            NOT FOR PUBLICATION                           FILED
                      UNITED STATES COURT OF APPEALS                      DEC 22 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



    JOSEPH USUNUBU ALUYA; DEMOND                  No.   15-16581
    HAMMOND; BRUCE DWIGHT
    SUTTON,                                       D.C. Nos.
                                                  1:13-cv-01345-AWI-JLT
                      Plaintiffs-Appellants,      1:13-cv-01209-AWI-JLT
                                                  1:13-cv-01344-AWI-JLT
     v.
                                                  MEMORANDUM*
    MANAGEMENT & TRAINING
    CORPORATION,

                      Defendant-Appellee.

                   Appeal from the United States District Court
                        for the Eastern District of California
                  Anthony W. Ishii, Senior District Judge, Presiding

                      Argued and Submitted December 14, 2016
                              San Francisco, California

Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,** District Judge.

          While Joseph Aluya, Demond Hammond, and Bruce Sutton (the “inmates”)

were incarcerated at Taft Correctional Institute (“TCI”), a federal prison operated by


*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
     The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
Management and Training Corporation (“MTC”), they contracted Valley Fever. In

this action, the inmates raise negligence and premises liability claims against MTC.

The district court granted summary judgment to MTC. We vacate and remand.

      1. The district court held that the inmates’ failure to proffer evidence that the

rate of infection was higher at TCI than in the surrounding community when they

contracted Valley Fever established that TCI could not have breached any duty to

the inmates. But, as the operator of a prison, MTC had the duty to undertake

reasonable measures to reduce the known risk of Valley Fever that arose from

incarceration in an area where the disease was endemic. See Edison v. United States,

822 F.3d 510, 521–22 (9th Cir. 2016) (finding a similar duty for the Bureau of

Prisons). Because MTC did not owe a similar duty to the surrounding community,

the similarity of infection rates does not bar the inmates’ claims.

      The inmates presented extensive evidence about measures that MTC could

have undertaken to reduce their risk of contracting Valley Fever. This evidence

raised a material question of fact as to whether MTC unreasonably failed to

undertake actions to reduce the inmates’ risk of infection, and the issue of breach of

MTC’s duty of reasonable care is therefore properly reserved for the jury. See

Ramirez v. Plough, Inc., 863 P.2d 167, 171 (Cal. 1993).1


1
      MTC’s failure to build structures cannot be the subject of a negligence claim.
See Edison, 822 F.3d at 522 (“The plain language of the contract indicates that the
BOP retained control over construction at Taft, which presumably would include the
                                         2
        2. A possessor of land has a duty to warn of a known concealed condition

that, in the absence of precautions, presents an unreasonable risk of harm to those

who encounter it. Rowland v. Christian, 443 P.2d 561, 568 (Cal. 1968), superseded

in part by statute, Cal. Civ. Code § 847. Valley Fever is a “classic example of a

hidden danger” triggering the duty to warn. Edison, 822 F.3d at 520. Although

MTC provided inmates with warnings about Valley Fever and posted signs at TCI

about the disease, the inmates submitted expert evidence that these warnings were

inadequate. The district court did not address the adequacy of the warnings in light

of its conclusion that the inmates’ failure to present evidence that TCI experienced

higher infections rates than the surrounding community precluded liability. On

remand, the court should consider in the first instance whether there is a genuine

issue of material fact as to whether MTC breached its duty to warn as a possessor of

land.

        Costs on appeal are awarded to Appellants.

        VACATED AND REMANDED FOR FURTHER PROCEEDINGS.




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.”).
                                          3
