76 F.4th 918
9th Cir.2023Background
- In late May 2020 California officials transferred 122 inmates from the California Institution for Men (CIM), which had an active COVID-19 outbreak, to San Quentin, which then had no known cases.
- Transferred inmates were largely untested, were packed onto buses, not quarantined on arrival, and housed in units with grated doors while sharing showers and dining with the general population.
- Public-health officials and an independent medical monitor warned defendants to sequester transfers, require masks, restrict staff movement, and improve testing; defendants declined or refused those recommendations.
- A rapid outbreak followed at San Quentin: hundreds infected and at least twenty-six inmates and one guard (Sgt. Gilbert Polanco) died; Polanco’s family sued under 42 U.S.C. § 1983 alleging substantive due process/state-created-danger and familial-association violations.
- The district court denied qualified immunity for some defendants at the motion-to-dismiss stage; defendants appealed. The Ninth Circuit, accepting plaintiffs’ allegations as true, affirmed the denial of qualified immunity.
Issues
| Issue | Polanco (Plaintiffs') Argument | Defendants' Argument | Held |
|---|---|---|---|
| Whether defendants’ actions state a Fourteenth Amendment state-created-danger violation | Transferring potentially COVID-positive inmates without testing/quarantine and ignoring public-health warnings affirmatively placed Polanco in a worse, particularized, foreseeable danger | Decisions were necessary to protect CIM inmates; any risk to guards was inherent to the job and not a constitutional violation | Yes. Allegations plausibly show affirmative state conduct that put a discrete group at severe risk and satisfy deliberate indifference required for a state-created-danger claim |
| Whether the alleged right was "clearly established" (qualified immunity) | Precedent (Grubbs; Pauluk) clearly established that public employers may be liable for affirmatively exposing employees to known, serious workplace dangers | COVID-19 was novel; law was not clearly established in spring 2020 and reasonable officials faced hard tradeoffs | No qualified immunity. Court held Grubbs and Pauluk together put officials on notice that such conduct could be unlawful, so the right was clearly established |
| Whether extra-record materials (Receiver testimony) or statutory immunity (PREP Act) defeat plaintiffs’ claims | n/a (plaintiffs rely on complaint allegations and contemporaneous warnings) | Judicial notice of Receiver testimony and PREP Act should show compliance or immunity | Court refused to take Receiver testimony as true on motion to dismiss and held PREP Act affects remedies, not the existence/clarity of constitutional rights; neither defeats denial of qualified immunity |
Key Cases Cited
- L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992) (recognizing state-created-danger claim where supervisors required an employee to work alone with a violent inmate they knew posed a risk)
- Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016) (state-created-danger claim where employer knowingly transferred an employee into a mold-infested workplace exposing him to serious health risk)
- DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (1989) (Due Process Clause generally does not impose an affirmative duty to protect individuals from private harm)
- District of Columbia v. Wesby, 138 S. Ct. 577 (2018) (qualified-immunity principle that existing precedent must place unlawfulness "beyond debate")
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (clarifies requirement that law be clearly established for qualified immunity)
- Pearson v. Callahan, 555 U.S. 223 (2009) (permits courts to decide the qualified-immunity prongs in the order best suited to the case)