Wendy Pauluk v. Glenn Savage

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WENDY J. PAULUK, Psy.D, No. 14-15027

individually and as

personal representative of D.C. No.

the proposed Estate of 2:07-cv-01681-PMP-VCF

Daniel Pauluk; JAIME L.

PAULUK; CHRISSY J.

PAULUK, OPINION

Plaintiffs-Appellees,

v.

GLENN SAVAGE, an

individual; EDWARD

WOJCIK, an individual,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, Senior District Judge, Presiding

Argued and Submitted February 11, 2016

San Francisco, California

Filed September 8, 2016

Before: John T. Noonan, William A. Fletcher,

and Mary H. Murguia, Circuit Judges.

2 PAULUK V. SAVAGE

Opinion by Judge W. Fletcher;

Partial Concurrence and Partial Dissent by Judge Murguia

Dissent by Judge Noonan

SUMMARY*

Civil Rights

The panel reversed the district court’s order, on summary

judgment, denying qualified immunity to two employees of

the Clark County Health District in an action brought

pursuant to 42 U.S.C. § 1983 by the widow and daughters of

Daniel Pauluk, an employee of the Health District, who died

allegedly from toxic mold in his workplace.

The panel first held that in this interlocutory appeal it had

jurisdiction to decide whether the evidence demonstrated a

violation by the defendant employees, and whether such

violation was in contravention of federal law that was clearly

established at the time.

The panel held that viewing the facts in the light most

favorable to plaintiffs, they had shown a violation of the

constitutional right, grounded in the Fourteenth Amendment’s

Due Process Clause, to be free of state-created danger. The

panel held that the Supreme Court’s decision in Collins v.

City of Harker Heights, 503 U.S. 115 (1992), declining to

find a general due process right to a safe workplace, did not

bar plaintiffs’ due process claim brought under the state-

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PAULUK V. SAVAGE 3

created danger doctrine. The panel nonetheless reversed the

district court’s order denying qualified immunity because the

panel determined that it was not clearly established, at the

time of the unconstitutional actions, that the state-created

danger doctrine applied to claims based on physical

conditions in the workplace.

Concurring in part and dissenting in part, Judge Murguia

agreed with the opinion’s analysis as to the scope of the

court’s jurisdiction to review the district court’s denial of

summary judgment on qualified immunity grounds, and with

its conclusion that the district court erred in denying qualified

immunity to the defendant employees. She respectfully

disagreed with the opinion’s conclusion that plaintiffs

presented a cognizable claim that defendants affirmatively

acted with deliberate indifference to Pauluk’s substantive due

process rights under the state-created danger doctrine.

Dissenting, Judge Noonan stated that the law governing

the state-created danger doctrine was clearly established at

the time and that any reasonable official in defendants’ shoes

would have understood that they were violating it.

COUNSEL

Peter M. Angulo (argued) and Walter R. Cannon, Olson,

Cannon, Gormley, Angulo & Stoberski, Las Vegas, Nevada,

for Defendants-Appellants.

John J. Tofano (argued), Las Vegas, Nevada, for Plaintiffs-

Appellees.

4 PAULUK V. SAVAGE

OPINION

W. FLETCHER, Circuit Judge:

This appeal stems from the death of Daniel Pauluk, an

employee of the Clark County Health District (“CCHD”) in

Nevada. Pauluk’s widow and daughters sued the CCHD and

two of its employees, Edward Wojcik and Glenn Savage,

alleging that their exposure of Pauluk to a workplace

environment infested with toxic mold caused his death, in

violation of the Due Process Clause of the Fourteenth

Amendment. The district court denied summary judgment to

Wojcik and Savage (collectively, “individual Defendants”).

They bring an interlocutory appeal, contending that they are

entitled to qualified immunity.

This case lies at the intersection of two lines of

authority—on the one hand, the state-created danger doctrine

under which constitutional due process claims may be

brought; on the other, the Supreme Court’s decision in

Collins v. City of Harker Heights, 503 U.S. 115 (1992),

declining to find a general due process right to a safe

workplace. We hold that Collins does not bar Plaintiffs’ due

process claim. Plaintiffs have stated a claim under the state-

created danger doctrine, notwithstanding the fact that the

danger at issue is a physical condition in the workplace.

However, we reverse the district court’s denial of summary

judgment as to Wojcik and Savage, on the ground that the due

process right asserted by Plaintiffs was not clearly established

at the time of the violation.

PAULUK V. SAVAGE 5

I. Background

A. Facts

Because this is an appeal from the denial of the individual

Defendants’ motion for summary judgment, we view the facts

in the light most favorable to Plaintiffs. Kennedy v. City of

Ridgefield, 439 F.3d 1055, 1059 (9th Cir. 2006). Except as

noted, we recount the facts as viewed in this light.

Daniel Pauluk worked for the CCHD in Nevada as an

Environmental Health Specialist from 1998 until illness

forced him to take leave in 2005. During his tenure at the

CCHD, Pauluk was transferred a number of times. He was

initially assigned to the CCHD’s “Shadow Lane” facility. He

later worked at two satellite offices before being transferred

back to Shadow Lane in February 2003. Pauluk did not want

to return to Shadow Lane due to concerns about the presence

of mold. Shadow Lane, along with several other Clark

County buildings, suffered from chronic roof and water

leakage problems that resulted in the proliferation of toxic

mold inside the facilities. Pauluk was transferred back to

Shadow Lane, over his objection, because his supervisor had

been reassigned to that facility.

Between 2003 and 2005, while he was working at

Shadow Lane, Pauluk complained repeatedly about mold.

For example, he requested testing of a ceiling panel above his

desk “[d]ue to the history of mold” in the building, and he

reported “mold spores” found near his desk. Pauluk

repeatedly requested, both orally and in writing, that he be

transferred from Shadow Lane because mold exposure was

adversely affecting his health.

6 PAULUK V. SAVAGE

Defendants Edmund Wojcik and Glenn Savage worked at

Shadow Lane during the time at issue. Both were Pauluk’s

superiors in his chain-of-command. Pauluk reported to his

immediate supervisor, Paul Klouse, who reported to Wojcik,

who reported to Savage. When Pauluk made a transfer

request or a report about mold, it was ordinarily made to

Klouse and was then “channel[ed]” up to Wojcik and Savage.

On one occasion, Pauluk personally asked Wojcik for a

transfer, but Wojcik told Pauluk that he needed to follow the

proper “channel” when making a transfer request. Although

the parties dispute the manner in which Wojcik and Savage

responded to Pauluk’s complaints about mold, they agree that

all of Pauluk’s transfer requests were denied.

Plaintiffs maintain that Pauluk’s exposure to mold at

Shadow Lane led to Pauluk’s illness and eventual death.

Pauluk was exposed to mold starting as early as 1998, but he

did not start having health problems until he was transferred

back to Shadow Lane in 2003. Shortly after this transfer,

Pauluk began to experience a number of adverse health

effects, including “mental confusion & slow thinking,”

“chronic exhaustion,” “headaches,” “chronic diarrhea,”

“airway obstruction in [his] lungs,” breathing problems,

“chills,” a “stiff neck,” “cramps in back and abdomen,”

vomiting, kidney cysts, and dehydration. Deposition

testimony from several doctors corroborated that Pauluk was

ill and that the illness was caused by mold. One doctor

testified that he treated Pauluk for a variety of ailments that

the doctor concluded were the result of “toxic mold

exposure.” Another doctor treated Pauluk for “aspergillosis,”

an infection caused by mold. A third doctor, who treated

Pauluk toward the end of his life, testified that mold exposure

in the workplace “was causally related to [Pauluk’s] illness.”

PAULUK V. SAVAGE 7

Pauluk’s poor health eventually forced him to leave his

job. In October 2005, Pauluk took leave under the Family

and Medical Leave Act based on his doctor’s Labor

Department certification stating that he was suffering from

“[t]oxic mold exposure with airflow obstruction.” Pauluk’s

illness progressively worsened during the next two years. He

died on July 17, 2007. Pauluk’s death certificate originally

stated that his cause of death was “end stage debility” and

“chronic obstructive pulmonary disease.” The certificate was

amended a month later to state that the cause of death was

“mixed mold mycotoxicosis.”

B. Procedural History

After Pauluk’s death, his wife and daughters filed suit

under 42 U.S.C. § 1983 against the CCHD, Wojcik, and

Savage. They alleged that CCHD and the individual

Defendants’ role in exposing Pauluk to a dangerous, mold-

infested work environment caused his death. They brought

claims under the Due Process Clause of the Fourteenth

Amendment as well as under state law. After years of

litigation in state and federal court, Wojcik and Savage

moved for summary judgment. They contended that there

was insufficient evidence to support Plaintiffs’ claims (1) that

Shadow Lane was unconstitutionally unsafe, (2) that the

defendants acted with deliberate indifference, and (3) that

there was a causal relationship between conditions at Shadow

Lane and Pauluk’s death. Wojcik and Savage also argued

that they were entitled to qualified immunity.

The district court granted in part and denied in part

Wojcik and Savage’s motion for summary judgment. The

court granted summary judgment to them on a negligent

8 PAULUK V. SAVAGE

supervision and training claim but denied summary judgment

as to all other claims.

Defendants Wojcik and Savage filed this interlocutory

appeal seeking review of the district court’s order denying

qualified immunity. On July 2, 2014, a motions panel of this

court denied without prejudice Plaintiffs’ motion to dismiss

for lack of jurisdiction. See Nat’l Indus., Inc. v. Republic

Nat’l Life Ins. Co., 677 F.2d 1258, 1262 (9th Cir. 1982)

(stating that a merits panel may consider appellate

jurisdiction despite an earlier denial of a motion to dismiss).

II. Standard of Review

We review de novo a challenge to our appellate

jurisdiction over an interlocutory appeal. Bingue v.

Prunchak, 512 F.3d 1169, 1172 (9th Cir. 2008). We also

review de novo an interlocutory appeal from the denial of

summary judgment based on qualified immunity. Kennedy,

439 F.3d at 1059.

III. Appellate Jurisdiction

Plaintiffs contend that we lack jurisdiction over this

interlocutory appeal because the district court based its denial

of summary judgment on purely factual grounds. The

individual Defendants, on the other hand, contend that we

have jurisdiction over the “purely legal” question of whether,

“assuming the factually-supported version of events offered

by [Plaintiffs] is correct,” the district court erred in denying

qualified immunity. We agree with the individual

Defendants.

PAULUK V. SAVAGE 9

In general, we have jurisdiction to hear appeals only from

“final decisions.” 28 U.S.C. § 1291; Johnson v. Jones,

515 U.S. 304, 309 (1995). However, the Supreme Court has

created an exception to the final judgment rule for certain

interlocutory appeals when the district court has denied a

motion for summary judgment based on qualified immunity.

“[A] district court’s denial of a claim of qualified immunity,

to the extent that it turns on an issue of law, is an appealable

‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.” Mitchell

v. Forsyth, 472 U.S. 511, 530 (1985).

Not every interlocutory appeal from a denial of a motion

for summary judgment based on qualified immunity is

immediately appealable. The Supreme Court has

distinguished between (1) an appeal raising the “purely legal”

question of whether the facts alleged by the plaintiff

demonstrate a violation of clearly established law, and (2) an

appeal contesting the district court’s conclusion that a

genuine issue of material fact exists. Johnson, 515 U.S. at

313, 319–20; see also Cunningham v. City of Wenatchee,

345 F.3d 802, 807 (9th Cir. 2003); Behrens v. Pelletier,

516 U.S. 299, 306 (1996). Since its decision in Johnson, the

Supreme Court has repeatedly stated that a court of appeals

has jurisdiction over an appeal from a denial of qualified

immunity, even when the district court’s order concludes that

there are disputed issues of material fact. Plumhoff v.

Rickard, 134 S. Ct. 2012, 2018–20 (2014); Behrens, 516 U.S.

at 312–13 (“Denial of summary judgment often includes a

determination that there are controverted issues of material

fact, and Johnson surely does not mean that every such denial

of summary judgment is nonappealable.” (citation omitted)).

Because we do not have jurisdiction over a district court’s

determination that there are genuine issues of material fact,

10 PAULUK V. SAVAGE

we cannot review Wojcik and Savage’s arguments that there

was insufficient evidence to show that Shadow Lane was

unsafe, that the defendants acted with deliberate indifference,

or that there was a causal relationship between the conditions

at Shadow Lane and Pauluk’s death. But we do have

jurisdiction, construing the facts and drawing all inferences

in favor of Plaintiffs, to decide whether the evidence

demonstrates a violation by Wojcik and Savage, and whether

such violation was in contravention of federal law that was

clearly established at the time. See Behrens, 516 U.S. at

312–13; Kennedy, 439 F.3d at 1060.

IV. Qualified Immunity

We apply a two-part analysis in qualified immunity cases.

Kennedy, 439 F.3d at 1060. “First, a court must determine

whether—resolving all disputes of fact and credibility in

favor of the party asserting the injury—the facts adduced at

summary judgment show that the officer’s conduct violated

a constitutional right.” Id. (citing Saucier v. Katz, 533 U.S.

194, 201 (2001)). Second, “if the court determines that the

conduct did violate a constitutional right, [the] second prong

requires the court to determine whether, at the time of the

violation, the constitutional right was ‘clearly established.’”

Id. We conclude, viewing the facts in the light most

favorable to Plaintiffs, that Plaintiffs have shown a violation

of the constitutional right, grounded in the Fourteenth

Amendment’s Due Process Clause, to be free of state-created

danger. We nonetheless reverse the district court’s denial of

summary judgment because it was not clearly established, at

the time of Wojcik and Savage’s unconstitutional actions, that

the state-created danger doctrine applied to claims based on

physical conditions in the workplace.

PAULUK V. SAVAGE 11

A. Due Process

Plaintiffs rely on a line of cases holding that exposure by

a state actor to a state-created danger violates due process.

The individual Defendants rely on Collins v. City of Harker

Heights, 503 U.S. 115 (1992), in which the Supreme Court

held that a state actor has no duty under the Due Process

Clause to provide a safe workplace. We address each line of

authority in turn, before turning to the interaction between the

two.

1. State-Created Danger

The “general rule” is that a state actor is not liable under

the Due Process Clause “for its omissions.” Munger v. City

of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir.

2000). There are two exceptions to this general rule:

“(1) when a ‘special relationship’ exists between the plaintiff

and the state (the special-relationship exception); and

(2) when the state affirmatively places the plaintiff in danger

by acting with ‘deliberate indifference’ to a ‘known or

obvious danger’ (the state-created danger exception).” Patel

v. Kent Sch. Dist, 648 F.3d 965, 971–72 (9th Cir. 2001)

(citations omitted). We are concerned here with the state-

created danger exception.

The exception is based in part on DeShaney v. Winnebago

County Department of Social Services, 489 U.S. 189 (1989),

in which the mother of a child who was beaten and

permanently injured by his father brought suit against social

workers and other local officials who had permitted the child

to remain with his father despite receiving complaints about

abuse. The Supreme Court held that the state had no free-

standing constitutional obligation to protect the child from his

12 PAULUK V. SAVAGE

abusive father. According to the Court, “the harms [the child]

suffered occurred not while he was in the State’s custody, but

while he was in the custody of his natural father” and the state

“played no part in the[] creation” of the dangers the child

faced. Id. at 201.

Relying on this language, our court and a majority of

other circuits have held that a state actor can be held liable

when that state actor did “play a part” in the creation of a

danger. See Gormley v. Wood-El, 93 A.3d 344, 360 (N.J.

2014) (“Most federal circuit courts now recognize the state-

created-danger doctrine as a basis for a substantive-due-

process violation.” (citing Sanford v. Stiles, 456 F.3d 298,

304 (3d Cir. 2006))); see also L.W. v. Grubbs (Grubbs I),

974 F.2d 119, 122 (9th Cir. 1992). Under the state-created

danger doctrine, a state actor can be held liable for failing to

protect a person’s interest in his personal security or bodily

integrity when the state actor affirmatively and with

deliberate indifference placed that person in danger. The

doctrine holds state actors liable “for their roles in creating or

exposing individuals to danger they otherwise would not have

faced.” Kennedy, 439 F.3d at 1062.

Our circuit first recognized the state-created danger

doctrine in Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989),

in which a police officer pulled over a car in the early

morning. After arresting the driver, the officer left the female

passenger alone in a high crime area at 2:30 a.m. The

passenger was subsequently attacked and raped. We held that

the officer could be held liable under § 1983 for the attack

and rape because, according to the plaintiff’s evidence, the

officer “affirmatively place[d] her in danger and then

abandon[ed] her.” Id. at 596. Since Wood, we have

repeatedly analyzed various constitutional allegations

PAULUK V. SAVAGE 13

premised on the state-created danger doctrine. See, e.g.,

Campbell v. Wash. Dept. of Soc. Servs., 671 F.3d 837 (9th

Cir. 2011); Patel, 648 F.3d 965; Johnson v. City of Seattle,

474 F.3d 634 (9th Cir. 2007); Kennedy, 439 F.3d at 1062;

Lawrence v. United States, 340 F.3d 952 (9th Cir. 2003);

Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082 (9th

Cir. 2000); Huffman v. County of Los Angeles, 147 F.3d 1054

(9th Cir. 1998); Penilla v. City of Huntington Park, 115 F.3d

707 (9th Cir. 1997); Grubbs I, 974 F.2d 119; Wood, 879 F.2d

583.

2. Collins

Wojcik and Savage contend that the Supreme Court’s

decision in Collins precludes the application of the state-

created danger doctrine in cases like this, where the danger is

a physical condition in a government employee’s workplace.

In Collins, an employee for a city sanitation department died

of asphyxia after he entered a manhole to unclog a sewer line.

His widow subsequently brought a § 1983 action against the

city, alleging “that her husband had ‘a constitutional right to

be free from unreasonable risks of harm to his body, mind

and emotions and a constitutional right to be protected from

the City of Harker Heights’ custom and policy of deliberate

indifference toward the safety of its employees.’” Collins,

503 U.S. at 126 n.9. She further claimed that “[t]he city’s

policy and custom of not training its employees and not

warning them of the danger allegedly caused Collins’ death

and thus deprived him of those rights.” Id. The Court

summarized her claim as a “general allegation that the city

deprived [Collins] of life and liberty by failing to provide a

reasonably safe work environment.” Id. at 125–26.

14 PAULUK V. SAVAGE

The Court held that the widow had not stated a cause of

action. Reluctant to recognize new due process claims that

would overlap with tort claims under state law, the Court

rejected “petitioner’s claim that the governmental employer’s

duty to provide its employees with a safe working

environment is a substantive component of the Due Process

Clause.” Id. at 126. The Court held that “the Due Process

Clause does not impose an independent federal obligation

upon municipalities to provide certain minimal levels of

safety and security in the workplace.” Id. at 130. In short,

Collins held “that the Constitution does not guarantee a right

to a safe workplace.” Jensen v. City of Oxnard, 145 F.3d

1078, 1083 (9th Cir. 1998).

3. Reconciling Collins and the State-Created Danger

Doctrine in Workplace Safety Cases

The threshold question before us is whether Plaintiffs’

claim under the state-created danger doctrine is foreclosed by

Collins. We conclude that it is not.

This conclusion is supported by the Collins decision

itself. The plaintiff in Collins did not allege a due process

claim under the state-created danger doctrine. Rather, she

alleged a general due process claim to a safe workplace,

alleging broadly “that the Federal Constitution imposes a duty

on the city to provide its employees with minimal levels of

safety and security in the workplace.” Collins, 503 U.S. at

126. In rejecting the plaintiff’s claim, the Court did not

address the state-created danger doctrine. Indeed, its

reasoning suggests that its decision might have been different

had the plaintiff alleged a specific state-created danger due

process claim. The Court explained that the plaintiff did “not

claim that the city or any of its agents deliberately harmed her

PAULUK V. SAVAGE 15

husband” and did “not even allege that [her husband’s]

supervisor instructed him to go into the sewer when the

supervisor knew or should have known that there was a

significant risk that he would be injured.” Id. at 125.

Recognizing Plaintiffs’ authority to bring a state-created

danger claim in this workplace safety case also accords with

the general rule under due process doctrine. The general rule

is that a state actor is not liable for his omissions or failure to

act. See Collins, 503 U.S. at 126; see also DeShaney,

489 U.S. at 196 (“[T]he Due Process Clauses generally confer

no affirmative right to governmental aid.”); Campbell,

671 F.3d at 842 (“It is well established that although the

Constitution protects a citizen’s liberty interest in her own

bodily security, the state’s failure to protect that interest does

not violate the Fourteenth Amendment.” (internal citation

omitted)). The state-created danger doctrine is a recognized

“exception” to this general rule. Patel, 648 F.3d at 972. In

holding that the government had no affirmative obligation to

provide a safe workplace, Collins appears to be an application

of this general rule. It follows that the exceptions to the

general rule, such as the state-created danger doctrine, should

also apply to workplace safety cases.

Support for this conclusion comes from Grubbs I, in

which we sustained a plaintiff’s state-created danger claim

even though it arose in the workplace. In Grubbs I, a case

decided six months after Collins, a registered nurse working

in an Oregon prison was raped by an inmate. The nurse

brought a § 1983 action against her supervisors, and we held

that she had stated a due process claim under the state-created

danger doctrine. Defendants had assigned the particular

inmate to work with the nurse even though they knew that

(1) the inmate had a history of violence against women and

16 PAULUK V. SAVAGE

was likely to assault a woman, (2) the nurse was likely to be

alone with the inmate during her rounds, and (3) the nurse

had not been informed at her hiring that she would be left

alone with violent offenders. Grubbs I, 974 F.2d at 121. We

distinguished Collins, writing that “[u]nlike Collins, [the

nurse] alleges that the Defendants took affirmative steps to

place her at significant risk.” Id. at 122. We rejected the

defendants’ contention that the nurse’s “status as a state

employee should bar her claim.” Id.

Other courts agree that Collins does not foreclose

application of the state-created danger exception in workplace

safety cases. See Hunt v. Sycamore Cmty. Sch. Dist. Bd. of

Educ., 542 F.3d 529, 537 (6th Cir. 2008) (noting that an

employee can prevail against his or her employer,

notwithstanding Collins, in state-created danger cases);

Kaucher v. County of Bucks, 455 F.3d 418, 424–25, 431 (3d

Cir. 2006) (treating plaintiffs’ state created danger doctrine

claim as separate and distinct from Collins); Ramos-Pinero v.

Puerto Rico, 453 F.3d 48, 55 n.9 (1st Cir. 2006) (assuming

the state-created danger doctrine could be a theory of liability

notwithstanding Collins, but rejecting plaintiffs’ claim on the

merits); Gormley, 93 A.3d at 362–63 (concluding that the

defendants were not entitled to qualified immunity, rejecting

the defendants’ reliance on Collins, and holding that the state-

created danger doctrine applied). But see Slaughter v. Mayor

& City Council of Baltimore, 682 F.3d 317, 321–23 (4th Cir.

2012) (holding that Collins barred a plaintiff’s claim against

a fire department, even though plaintiff raised a state-created

danger claim).

PAULUK V. SAVAGE 17

4. Applying the State-Created Danger Exception to the

Facts of This Case

To prevail on a state-created danger due process claim, a

plaintiff must show more than merely a failure to create or

maintain a safe work environment. First, a plaintiff must

show that the state engaged in “affirmative conduct” that

placed him or her in danger. Patel, 648 F.3d at 974. This

“affirmative conduct” requirement has several components.

A plaintiff must show not only that the defendant acted

“affirmatively,” but also that the affirmative conduct placed

him in a “worse position than that in which he would have

been had [the state] not acted at all.” Johnson, 474 F.3d at

641 (quoting DeShaney, 489 U.S. at 201); accord Kennedy,

439 F.3d at 1063. The affirmative act must have exposed the

plaintiff to “an actual, particularized danger,” Kennedy,

439 F.3d at 1063, and the resulting harm must have been

foreseeable, see Lawrence, 340 F.3d at 957. Second, the

state actor must have acted with “deliberate indifference” to

a “known or obvious danger.” Patel, 648 F.3d at 974

(quoting L.W. v. Grubbs (Grubbs II), 92 F.3d 894, 900 (9th

Cir. 1996)). “Deliberate indifference” requires a “culpable

mental state” more than “gross negligence.” Id.; see Grubbs

II, 92 F.3d at 898.

Plaintiffs’ evidence, if true, satisfies both elements of a

state-created danger claim. First, Pauluk’s 2003 transfer back

to Shadow Lane was “affirmative” conduct. Pauluk clearly

did not want to return to Shadow Lane and was transferred

“involuntarily.” There is sufficient evidence in the record

that either or both Wojcik and Savage were sufficiently

involved in the decision to transfer that a reasonable jury

could conclude they should bear some responsibility for that

transfer. Further, the 2003 transfer back to Shadow Lane

18 PAULUK V. SAVAGE

placed Pauluk in a “worse position” than before. Only after

the transfer did Pauluk begin to suffer from mold-related

health problems. The harm that Pauluk suffered was

foreseeable, as Pauluk had opposed the transfer specifically

on the ground that he feared he would become ill due to toxic

mold exposure.

Second, construing the facts in the light most favorable to

Plaintiffs, Wojcik and Savage acted with deliberate

indifference in exposing Pauluk to a known and obvious

danger. Plaintiffs presented evidence that Wojcik and Savage

were both aware of the CCHD’s long and tortured history of

pervasive mold problems in multiple buildings, including the

Shadow Lane facility. Plaintiffs’ evidence also suggests that

Wojcik and Savage were on notice of the potential health

problems associated with mold exposure, as Pauluk protested

his transfer on mold-related grounds and at least one other

employee working at Shadow Lane had previously suffered

harmful health effects from mold exposure. Further,

Plaintiffs presented evidence that Wojcik and Savage actively

tried to conceal the amount of, and danger posed by, the

mold. This evidence would support a reasonable jury’s

finding that Wojcik and Savage acted with deliberate

indifference toward the danger posed by toxic mold in

Shadow Lane to Pauluk’s health.

B. Clearly Established Law

Although we conclude that Plaintiffs presented sufficient

evidence to show a due process violation under the state-

created danger doctrine, qualified immunity shields Wojcik

and Savage from a § 1983 damages suit unless Pauluk’s due

process right was “clearly established at the time of the

violation.” Espinosa v. City & County of San Francisco,

PAULUK V. SAVAGE 19

598 F.3d 528, 532 (9th Cir. 2010). We conclude that the right

was not clearly established, and that Wojcik and Savage are

therefore entitled to qualified immunity.

Plaintiffs argue that Pauluk’s constitutional rights were

clearly established by our decisions in Wood and Grubbs I.

We easily conclude that Wood does not clearly establish the

due process right that Plaintiffs assert. As mentioned above,

in Wood we held that a police officer could be liable for a

rape that occurred after he abandoned the plaintiff in a high

crime area in the middle of the night. The core question in

this appeal is whether Collins bars the application of the

state-created danger doctrine in cases where the danger is a

physical condition in the workplace. Because Wood did not

involve a dangerous workplace, it does not speak to this

question.

Grubbs I presents a closer analogy to this case. However,

as recounted above, the danger in Grubbs I was a human

actor who posed a known threat. In contrast, Pauluk was not

harmed by a human agent, but rather by a physical condition

in the building where he worked. This case is factually very

similar to Collins, where, as here, the danger was a physical

danger in the workplace. For the reasons given above, we

conclude that Plaintiffs have stated a claim despite the fact

that Pauluk’s injury was caused by physical conditions in the

workplace. But, because the Supreme Court in Collins

declined to find a due process violation in a case with very

similar facts, we cannot say that Wojcik and Savage were “on

notice” that their conduct was unlawful under clearly

established law. Hope v. Pelzer, 536 U.S. 730, 739 (2002).

20 PAULUK V. SAVAGE

C. Remaining Monell Claim

The CCHD, a county agency, was not party to this

interlocutory appeal and remains a defendant. A county

agency is not entitled to qualified immunity and may be held

liable for constitutional violations by its employees under

Monell v. Department of Social Services, 436 U.S. 658

(1978), and related cases. We express no view on the

possible Monell liability of the CCHD under the state-created

danger doctrine, leaving that question to the district court in

the first instance.

Conclusion

We hold that the state-created danger doctrine is a viable

theory of due process liability under § 1983, even in

workplace environments. However, in light of the factual

similarity between this case and Collins, we hold that the

district court erred in denying qualified immunity to Wojcik

and Savage. We reverse and remand for further proceedings

consistent with this opinion.

REVERSED and REMANDED.

MURGUIA, Circuit Judge, concurring in part and dissenting

in part:

I fully agree with the opinion’s analysis as to the scope of

this court’s jurisdiction to review the district court’s denial of

summary judgment on qualified immunity grounds, and with

its conclusion that the district court erred in denying qualified

immunity to Wojcik and Savage. However, even accepting

PAULUK V. SAVAGE 21

as true the plaintiffs’ version of events, see Behrens v.

Pelletier, 516 U.S. 299, 313 (1996), I respectfully disagree

that the plaintiffs have presented a cognizable claim that

Wojcik and Savage affirmatively acted with deliberate

indifference to Pauluk’s substantive due process rights under

the state-created danger doctrine.1

I.

The state-created danger exception is a logical corollary

to the well-settled rule that the government has no general

duty under the Constitution to protect people from privately-

inflicted harm. In DeShaney v. Winnebago County

Department of Social Services, 489 U.S. 189 (1989), the

Supreme Court declared that “nothing in the language of the

Due Process Clause itself requires the State to protect the life,

liberty, and property of its citizens against invasion by private

actors,” id. at 195. In the same breath, however, the Court

also recognized that there may be circumstances in which the

government must provide protection because it “played [a]

part in the[] creation” of a dangerous situation or did

something “to render [an individual] more vulnerable to” a

pre-existing danger. Id. at 201. It is when “the state has

affirmatively placed the plaintiff” in harm’s way that a

1

I note at the outset that the constitutional issue on which I dissent is not

dispositive to this appeal, and I would not have reached it at

all—particularly in light of the fact that the liability of the entity who

appears the most responsible for the decedent’s injuries—the Clark

County Health District (“CCHD”)—remains outstanding. As a municipal

entity, the CCHD has no immunity under § 1983 and is not a party to this

appeal. See Owen v. City of Independence, 445 U.S. 622, 638 (1980).

CCHD’s potential liability under Monell is therefore not an issue that is

presently before us on interlocutory review from the district court’s denial

of qualified immunity to the individually named defendants.

22 PAULUK V. SAVAGE

reciprocal duty to protect may attach. Ketchum v. Alameda

County, 811 F.2d 1243, 1247 (9th Cir. 1987) (emphasis

added).

But inherent in our characterization of the state-created

danger doctrine as an “exception” to the ordinary rule, see

Patel v. Kent Sch. Dist., 648 F.3d 965, 972 (9th Cir. 2001), is

the principle that the government does not violate the

Constitution “whenever someone cloaked with state authority

causes harm,” County of Sacramento v. Lewis, 523 U.S. 833,

848 (1998). The substantive component of the Due Process

Clause only prevents the state from engaging in conduct

“intended to injure in some way unjustifiable by any

government interest.” Id. at 849. “[O]nly the most egregious

official conduct” crosses the constitutional line so as to

constitute a deprivation of due process. Id. at 846. To this

end, we have made clear that gross negligence on the part of

the government actor is not enough. Patel, 648 F.3d at 974;

L.W. v. Grubbs (“Grubbs II”), 92 F.3d 894, 900 (9th Cir.

1996); see also Lewis, 523 U.S. at 849 (“[L]iability for

negligently inflicted harm is categorically beneath the

threshold of constitutional due process.”). As the opinion

observes, an individual can recover on a § 1983 claim under

the state-created danger doctrine only by showing that the

state officials in question acted with “deliberate indifference”

to a “known or obvious danger” that they had an affirmative

role in subjecting the plaintiff to. Patel, 648 F.3d at 974;

Grubbs II, 92 F.3d at 900.

As my concurring colleague notes, Collins v. City of

Harker Heights, 503 U.S. 115 (1992), on which defendants

primarily rely, does not itself speak to the scope of the state-

created danger doctrine. Nevertheless, it is easy to situate its

holding within the aforementioned framework. In Collins,

PAULUK V. SAVAGE 23

the Supreme Court applied the general rule that state actors

are liable only for actions that violate constitutional rights,

not omissions, and concluded that the Due Process Clause

does not impose a free-standing duty upon a municipality to

provide its employees with certain minimal working

conditions.2 503 U.S. at 125–30; cf. Deshaney, 489 U.S. at

195 (“The [Due Process] Clause is phrased as a limitation on

the State’s power to act, not as a guarantee of certain minimal

levels of safety and security.”). At the same time, however,

nothing in Collins abrogated the Constitution’s guarantee of

freedom from unreasonable state-created dangers. In other

words, public employees—like any citizen—can recover

under the state-created danger doctrine for workplace injuries

that are severe enough to offend due process—provided, of

course, that the employee shows that a state official

affirmatively created the unsafe working environment and

acted with the requisite deliberate indifference in subjecting

the employee to that workspace. See, e.g., L.W. v. Grubbs

(“Grubbs I”), 974 F.2d 119, 122 (9th Cir. 1992) (finding

2

The plaintiff in Collins had brought suit after her husband, a city

employee within the sanitation department, died of asphyxia in a manhole

where he was fixing a sewer line. 503 U.S. at 117. The employee’s

widow alleged that the city had violated the decedent’s liberty interest by

failing to train its employees about the dangers of working in sewer lines

and manholes or provide adequate safety equipment at job sites. Id. The

Collins Court firmly rejected the plaintiff’s theory of liability, concluding

that nothing in the Constitution imposes a duty on municipal entities to

provide a reasonably safe work environment for its employees. Id. at 126.

Nor did the city’s purported failure to train or warn its employees amount

to an omission that the Supreme Court believed could be properly

characterized as arbitrary or conscience-shocking in the substantive-due-

process sense. Id. at 128. In no uncertain terms, the Supreme Court held

that “[t]he Due Process Clause . . . does [not] guarantee municipal

employees a workplace that is free of unreasonable risks of harm.” Id. at

129.

24 PAULUK V. SAVAGE

nurse’s status as prison employee did not bar her § 1983

claim after she was raped by a violent sex offender after

being assigned to work alone in the medical clinic with him).

With these principles in mind, I turn to the issue on which

I diverge from the opinion: whether two municipal

supervisors violated a federal constitutional obligation after

an employee died from a generalized exposure to toxic mold.

II.

As noted above, the state-created danger doctrine requires

affirmative action by state officers; the state’s failure to

protect an individual from an unsafe environment does not

give rise to liability under the state-created danger doctrine.

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir.

2006). We have clarified that “affirmative conduct” means

that the state’s actions must have placed the plaintiff in a

“worse position than that in which he would have been had it

not acted at all.” Johnson v. City of Seattle, 474 F.3d 634, 641

(9th Cir. 2007) (quoting DeShaney, 489 U.S. at 201); see also

Kennedy, 439 F.3d at 1062 (“[W]e examine whether the

[official] left the person in a situation that was more

dangerous than the one in which they found him.” (citation

omitted)). In the context of this case, I believe that there are

two reasons why the plaintiffs’ allegations fail to satisfy this

standard—one factual, one jurisprudential.

A.

First, the universe of evidence from the summary

judgment record that a reasonable jury could attribute to

Wojcik and Savage is scant. Accepting the plaintiffs’ version

of events as true, as we must at this interlocutory stage,

PAULUK V. SAVAGE 25

Pauluk was a veteran employee of the CCHD who died after

being exposed to toxic mold at Shadow Lane, where he was

reassigned over his objections in 2003. It is undisputed that

Shadow Lane suffered from structural deficiencies in the

building that let in rainwater.

During his tenure there, Pauluk repeatedly complained

about mold to the intermediate supervisors in his chain of

command, which included the defendants Wojcik and

Savage, both of whom also worked at Shadow Lane.

Specifically, Pauluk requested to transfer out of Shadow Lane

or to move desks within the building. Whenever Pauluk

would make such a request, it would be sent to his immediate

boss and then “funnel[ed]” up to Wojcik and Savage. On one

occasion, Pauluk personally asked Wojcik for a transfer, but

Wojcik told Pauluk that he needed to follow the proper

“channel[s]” when making a transfer request. All of Pauluk’s

transfer requests were ultimately denied. Savage was told

that transferring Pauluk would result in “chaos to the overall

business of the Health District” and that Pauluk’s position

involved a “main office function”—the main CCHD office

being the Shadow Lane facility. Nevertheless, in 2003, in

response to Pauluk’s concerns, ceiling tiles were removed and

tested for mold. Savage also assisted Pauluk in 2004 with

taking photographs of suspected mold growth and forwarding

it to the administration, and Wojcik sent an e-mail to his

chain of command seeking to have the materials gathered by

Savage and Pauluk tested. As a result of their efforts,

maintenance staff removed and replaced four stained ceiling

tiles and one fluorescent lens near Pauluk’s work station. In

the end, however, Pauluk left Shadow Lane in October 2005

due to medical problems associated with “[t]oxic mold

exposure.” Unfortunately, Pauluk’s health continued to

deteriorate and he died in 2007.

26 PAULUK V. SAVAGE

The family’s primary contention is that Wojcik and

Savage failed to protect Pauluk from exposure to mold by not

transferring him away from Shadow Lane. But keeping

Pauluk at a facility that was infested with mold is not

“affirmative action.” See Kennedy, 439 F.3d at 1062 (“In

examining whether an officer affirmatively places an

individual in danger . . . we examine whether the officer[] left

the person in a situation that was more dangerous than the

one in which they found him.”). The family also argues that

Wojcik and Savage acted affirmatively by denying Pauluk’s

requests to transfer. However, these actions fail the “no

worse position” test too: regardless of whether defendants

denied Pauluk’s requests or simply ignored them, Pauluk

would have remained in the same position—purportedly

being exposed to toxic mold at Shadow Lane. See Johnson,

474 F.3d at 641 (concluding that city’s decision to switch

from a more effective crowd-control procedure to a less

effective plan was not “affirmative action,” precluding

liability to plaintiffs who were injured during a riot at a Mardi

Gras celebration).

The opinion nevertheless concludes that Wojcik and

Savage’s decision to transfer Pauluk back to the Savage Lane

facility in 2003 constitutes the requisite affirmative action.

But in opposition to the defendants’ motion for summary

judgment, plaintiffs insisted that CCHD exposed Pauluk to

mold on two other occasions prior to 2003—in 1998 and

2000. See Plaintiffs’ Opposition to Defendants’ Motion for

Summary Judgment, Pauluk v. Savage, No. 07-CV-1681 at

*10 (D. Nev. Oct. 7, 2013), ECF No. 131 (“[T]he record

evidence shows CCHD affirmatively placed Dan Pauluk in

harms way on no less than three (3) occasions—in 1998,

2000 and 2003—then the Defendants have failed to meet

their burden on summary judgment in that the Defendants

PAULUK V. SAVAGE 27

affirmatively and with deliberate-indifference engaged in

conscience-shocking conduct.”). If Pauluk’s risk of illness

from mold exposure pre-dated his 2003 reassignment to

Shadow Lane, then Wojcik and Savage could not have placed

Pauluk in any worse of a position than if he had never been

transferred. Therefore, even reading the record in the light

most favorable to the plaintiffs, plaintiffs’ claim fails as a

matter of law because, after the 2003 transfer, Pauluk was in

“no worse position” than before. See Johnson, 474 F.3d at

641.

B.

I further disagree that moving Pauluk back to Savage

Lane amounts to “affirmative action” in the constitutional

sense. The previous circumstances in which this court has

grappled with the state-created danger doctrine do not

remotely resemble the facts of this case. Every instance in

which we have permitted a state-created danger theory to

proceed has involved an act by a government official that

created an obvious, immediate, and “particularized danger”

to a specific person known to that official. See Kennedy,

439 F.3d at 1067 (explaining that “affirmative action”

requires the state actor to “create[] an actual, particularized

danger [the injured party] would not otherwise have faced”).

We have also extended the doctrine only to encompass claims

in which the official’s act caused the harm, as opposed to

merely increasing a risk to the plaintiff.

In this circuit, the state-created danger doctrine begins

with Wood v. Ostrander, in which the court held that police

officers who had stranded a woman in a high crime area at

2:30 in the morning could be liable under § 1983 after the

woman was sexually assaulted. 879 F.2d at 588–90.

28 PAULUK V. SAVAGE

Similarly, in Penilla v. City of Huntington Park, we denied

qualified immunity to officers who had responded to a 911

call, found Penilla to be in grave need of medical care, and

yet canceled the request for paramedics, broke the lock and

door jamb on the front door of Penilla’s residence, moved

him inside the house, locked the door, and left him to die.

115 F.3d 707, 708 (9th Cir. 1997). And, in Munger v. City of

Glasgow, we found evidence of affirmative action by the state

where police officers ejected an intoxicated patron from a bar

wearing only a t-shirt and jeans in sub-freezing temperatures;

the patron died from hypothermia. 227 F.3d 1082, 1087 (9th

Cir. 2000).

In Kennedy v. City of Ridgefield, we likewise affirmed the

denial of qualified immunity to a police officer who had

informed the plaintiff’s neighbor—an individual with known

violent tendencies and against whom the plaintiff had made

allegations of child abuse—that he was being investigated for

molesting the plaintiff’s daughter. 439 F.3d at 1057, 1067.

The officer had promised to warn the plaintiff before

approaching her neighbor, and assured her that police would

patrol her neighborhood. Id. at 1058. The neighbor later

broke into the plaintiff’s house and shot her and her husband

while they were sleeping. Id. at 1058. The Kennedy court

explained that the officer had “affirmatively created an actual,

particularized danger [the family] would not otherwise have

faced” by confronting the suspect without notifying the

Kennedy family as promised. Id. at 1063.

Kennedy relied substantially on our’s holding in Grubbs

I, in which we found that a nurse in a medium-security

correctional institution had stated a claim under the

Fourteenth Amendment after an inmate with known violent

propensities raped and terrorized her. Grubbs I, 974 F.2d at

PAULUK V. SAVAGE 29

120–22. State officials had assigned the inmate to work in

the medical clinic with the plaintiff and had failed to inform

her that she would be left alone with violent sex offenders.

Id. at 120. The Grubbs I court concluded that the plaintiff

had adequately alleged that the defendants’ acts had

“independently created the opportunity for and facilitated [the

inmate’s] assault on her” and allowed her claim to proceed to

trial. Id. at 122. The court emphasized that, in assigning the

inmate to work with the plaintiff while also misrepresenting

the risks attending to the plaintiff’s work, the defendants had

created the danger by preventing the plaintiff from defending

herself or averting an attack.3 Id. at 122.

The common elements in all of these cases that justified

our imposing liability were the acuteness of the danger to the

plaintiff, the temporal proximity between the official’s act

and the injury, and the clear traceability of the injury to the

official’s conduct. The facts here are markedly different: the

plaintiffs have alleged that Wojcik and Savage violated

Pauluk’s constitutional rights by moving him into a municipal

building where he was exposed to toxic mold over the course

of several years—along with countless other employees,

including the defendants. Wojcik and Savage’s decision to

reassign Pauluk more closely resembles the cases in which

this court has declined to find a cognizable due process

violation due to the unforeseeable nature of the plaintiffs’

injuries and the fact that the danger facing the plaintiff

3

The court never had to evaluate the qualified immunity question in

Grubbs, which came to the court on an appeal from a motion to dismiss.

Following a trial, however, the jury found that the supervisor who was

responsible for creating the danger to the plaintiff had acted only with

gross negligence, but not with the deliberate indifference necessary to

sustain liability. Grubbs II, 92 F.3d at 895.

30 PAULUK V. SAVAGE

existed independent of state action. See, e.g., Patel, 648 F.3d

at 976 (holding no rational fact finder could conclude that a

teacher acted with deliberate indifference to her student’s

well-being because the teacher “did not know there was any

immediate danger in allowing [the plaintiff] to briefly use the

next-door bathroom alone”); Huffman v. County of Los

Angeles, 147 F.3d 1054, 1061 (9th Cir. 1998) (finding no

liability where an individual was shot during a barroom brawl

by an off-duty deputy on the grounds that the injury was an

unforeseeable consequence of a county policy requiring off-

duty officers to carry a firearm); see also Lawrence v. United

States, 340 F.3d 952, 957 (9th Cir. 2003) (“[I]n each of the

cases in which we have applied the danger-creation

exception, ultimate injury to the plaintiff was foreseeable.”).

The link between the challenged conduct and Pauluk’s

untimely death is simply too attenuated to support Wojcik

and Savage’s liability.

III.

In addition to showing affirmative conduct, the family

must also show that the defendants acted with “deliberate

indifference” to Pauluk’s health and safety. We have

repeatedly affirmed that the standard for deliberate

indifference is demanding; it requires a showing that the

“defendant recognizes the unreasonable risk and actually

intends to expose the plaintiff to such risks without regard to

the consequences to the plaintiff.” Grubbs II, 92 F.3d at 899

(citation omitted); see also Patel, 648 F.3d at 974

(“Deliberate indifference is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.” (internal quotation marks

omitted)). The defendant is liable if he “knows that

PAULUK V. SAVAGE 31

something is going to happen but ignores the risk.” Grubbs

II, 92 F.3d at 900 (first emphasis added).

The opinion concludes that the deliberate indifference

requirement is satisfied because Wojcik and Savage were

aware that the CCHD had a history of pervasive mold

problems throughout multiple buildings, and that Shadow

Lane suffered from water damage. There is some evidence

that one other employee working in Shadow Lane suffered

from the ill-effects of mold exposure before Pauluk was

transferred back to the facility.

I disagree that these facts, alone, demonstrate Wojcik and

Savage’s deliberate indifference to any danger Pauluk was

exposed to at Shadow Lane. In Penilla, by contrast, the

officers knew Penilla was in grave condition and required

prompt medical attention, yet they did the opposite of what a

reasonable person would expect them to do. In fact, the

officers made the situation worse by calling off medical

assistance already en route. Penilla, 115 F.3d at 708.

Kennedy and Grubbs both concerned circumstances in which

the government official actively concealed a known risk of

harm from the plaintiff. Here, at most, Wojcik and Savage

knew that a workplace free of mold was preferable to one

with mold, but do not appear to have been aware that moving

Pauluk to a contaminated building would cause him to

become deathly ill.4 See Patel, 648 F.3d at 975–76 (refusing

to find liability where extent of the risks were unknown to the

defendant). Further, the family admits that Savage “assist[ed]

Pauluk” in his attempts to report the mold problems by

“removing ceiling tiles, looking above the ceiling tiles and

4

The opinion’s assertion that Wojcik and Savage actively tried to

conceal the existence of mold is not supported by the record.

32 PAULUK V. SAVAGE

taking photographs in the area where Pauluk’s desk was

locat[ed].” This indicates that Savage was sensitive to

Pauluk’s complaints and wanted them to be resolved. Wojcik

demonstrated similar sympathy towards seeing Pauluk’s

concerns addressed. Without the requisite mental state, there

can be no constitutional violation premised on state-created

danger.

IV.

As in all state-created danger cases, the facts before us are

undeniably tragic. But the Fourteenth Amendment is not a

panacea for all wrongs. The Supreme Court “has always

been reluctant to expand the concept of substantive due

process,” and the Fourteenth Amendment “does not purport

to supplant traditional tort law in laying down rules of

conduct to regulate liability for injuries that attend living

together in society.” Collins, 503 U.S. at 125, 128; see also

Lewis, 523 U.S. at 848 (“[T]he Fourteenth Amendment is not

a ‘font of tort law to be superimposed upon whatever systems

may already be administered by the States.’”). To the extent

Pauluk has a remedy, I believe it is properly found under

Nevada state law. See Patel, 648 F.3d at 976 (“Whatever

liability [the defendant] may face, that liability must come

from state tort law, not the Fourteenth Amendment.”).

Because I cannot join my esteemed colleagues in their

sweeping holding that the facts alleged establish a Fourteenth

Amendment violation by Wojcik and Savage, I respectfully

dissent from that portion of the opinion.

PAULUK V. SAVAGE 33

NOONAN, Circuit Judge, dissenting:

Today, the majority holds that the state-created danger

doctrine—a theory of constitutional harm whose contours

have been “clearly established” by at least nine published

opinions of this court over the course of two decades—is no

longer sufficiently “clear” in light of a single case which

addresses an unrelated legal theory. I respectfully dissent.

I.

In this circuit, the state-created danger doctrine begins

with Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989). In

Wood, a police officer arrested an intoxicated driver,

impounded the vehicle, and refused the passenger’s request

for a ride, leaving her stranded late at night in a high crime

area. Id. at 586. On her walk home, she accepted a ride from

a stranger, who ultimately took her to a secluded area and

raped her. Id. On these facts, this court held that the plaintiff

raised a triable issue as to whether the officer’s conduct

“affirmatively placed the plaintiff in a position of danger.” Id.

at 589–90. The court reasoned that while the officer did not

assault Wood himself, he acted “in callous disregard for [her]

safety” by exposing her to a known and “inherent danger.” Id.

Wood and the cases that follow have emphasized that in order

for liability to attach under the state-created danger doctrine,

the state actor must knowingly create “an actual,

particularized danger.” Kennedy v. City of Ridgefield,

439 F.3d 1055, 1063 (9th Cir. 2006). However, the facts of

these cases make clear that the state’s actions need not be the

only but-for cause of the ultimate harm, and that its

foreseeability need not be certain to be actionable.

34 PAULUK V. SAVAGE

Indeed, in Wood, it was far from certain that the plaintiff

would be accosted on her way home; furthermore, her

decision to accept a ride from a stranger in a high-crime area

was an intervening act that was an independent cause of the

harm she sustained. Yet this court had no trouble concluding

that the causal nexus between the officer’s conduct and the

harm endured was sufficiently close to warrant holding the

state liable, characterizing it as “a matter of common sense.”

Wood, 879 F.2d at 590.

In Kennedy, an officer was called upon to investigate an

allegation made by Jay and Kimberly Kennedy that their

thirteen year-old neighbor, Michael Burns, had molested their

daughter. 439 F.3d 1055, 1057 (9th Cir. 2006). Kimberly

informed the officer that she believed Burns was violent and

lived in an unstable household. Id. at 1057–58. In response,

the officer assured her that she would be given notice prior to

any police contact with Burns. Id. at 1058. A few weeks later,

the officer drove to Burns’ house and informed him of the

molestation allegations made by the Kennedys, and

immediately after, drove to the Kennedy house to update

them on the situation. When Kimberly expressed her

displeasure with the officer for failing to provide her with

advance notice of his contact with Burns as he had promised,

the officer assured her that the police would patrol the area

and “keep an eye” on Burns. Id. The police never conducted

the promised patrol. The next morning, Burns broke into the

Kennedys’ home and shot them in their sleep, killing Jay and

severely wounding Kimberly. Id. at 1057.

While Burns “had a predilection for violence,” id. at

1064, it was by no means certainly foreseeable that even a

violent thirteen year-old could commit such a heinous act.

However, in affirming the denial of qualified immunity to the

PAULUK V. SAVAGE 35

officer, this court clarified that “for a danger to exist, the

exact injury inflicted by a third party [need not] have been

foreseeable”; rather, liability attaches where the state actor

places a plaintiff “in a situation more dangerous than the one

she already faced.” Id. at 1064 n.5; see also Munger v. City of

Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000).

In the case at bar, the facts as alleged state that defendants

had full knowledge of the mold problem at Shadow Lane in

2003 when, over Pauluk’s objections, it transferred him there.

Pauluk was therefore willfully exposed to a mold spore

infestation, and all its attendant health risks, with every breath

he took. It would be a cruel irony to hold that a harm that

strikes at the very heart of a state agency’s core competency

is not sufficiently “particularized” or “foreseeable” to it for

purposes of the state-created danger doctrine. Indeed, the

harms suffered in Wood and Kennedy were arguably more

attenuated than what Pauluk faced. In those cases, the

officers’ conduct only created an increased probability of

harm to the plaintiffs; conversely, it was certain that Pauluk

would suffer at least some harm due to the inevitable

inhalation of mold.

No basis exists to distinguish this case from Wood,

Kennedy, or any other published opinion of this court

upholding the applicability of the state-created danger

doctrine. I would affirm the district court’s denial of

summary judgment. I therefore concur with the majority’s

conclusion that, viewing the facts in the light most favorable

to plaintiffs, they have shown a violation of the Fourteenth

Amendment under the state created danger doctrine.

36 PAULUK V. SAVAGE

II.

In Collins v. City of Harker Heights, Tex., the plaintiff’s

deceased spouse, an employee of a municipal sanitation

department, died from asphyxiating on noxious fumes after

entering a manhole to fix a sewer line. 503 U.S. 115, 117

(1992). Collins brought suit under 42 U.S.C. § 1983, alleging

that the City violated the substantive Due Process Clause of

the Fourteenth Amendment by failing to maintain a minimal

level of workplace safety. The Supreme Court rejected this

argument, holding that the Fourteenth Amendment does not

encompass a generalized duty to “provide [government]

employees with minimal levels of safety and security in the

workplace.” Id. at 126.

While Collins and Pauluk both died from inhaling

poisonous air in the workplace, the similarity between their

cases ends there. Indeed, Collins does not ever discuss the

state-created danger doctrine—the theory upon which

Pauluk’s entire case hinges. To hold that Collins defines the

contours of a doctrine that it does not even mention would

expand its holding far beyond what the Court could have

reasonably intended.

The Collins Court emphasized that the plaintiff “does not

claim that the city or any of its agents deliberately harmed her

husband. In fact, she does not even allege that his supervisor

instructed him to go into the sewer when the supervisor knew

or should have known that there was a significant risk that he

would be injured.” Id. at 125. Pauluk’s case therefore presents

the precise facts that the Collins Court deemed were

inapplicable to its analysis and holding. Accordingly, Collins

does not counsel against affirming the district court here.

Indeed, the majority appears to concede that Collins is

PAULUK V. SAVAGE 37

distinguishable, but concludes that even assuming Pauluk has

stated a constitutional violation, the factual circumstances of

this case are simply too similar to the facts of Collins for the

defendants to have been “‘on notice’ that their conduct was

unlawful under clearly established law.” Majority Op. at 19.

The law governing the state-created danger doctrine is

“clearly established” by the controlling precedent discussed

above such that “any reasonable official in [defendants’]

shoes would have understood that [they were] violating it.”

City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765 (2015)

(citations omitted). Indeed, in light of these cases, the

constitutional question has been “placed. . .beyond debate.”

Id. A case which presents some factual similarities but lacks

any legal nexus to the state-created danger doctrine cannot

revive that debate, nor can it serve to convolute what this

court has defined with pellucid clarity. Collins does not

control here. Accordingly, I dissent.