Patricia Polanco v. Ralph Diaz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA POLANCO; VINCENT No. 22-15496

POLANCO; SELENA POLANCO;

GILBERT POLANCO, Deceased, D.C. No. 3:21-

cv-06516-CRB

Plaintiffs-Appellees,

v.

OPINION

RALPH DIAZ; ESTATE OF

ROBERT S. THARRATT; RONALD

DAVIS, Warden; RONALD

BROOMFIELD; CLARENCE

CRYER; ALISON PACHYNSKI,

MD; SHANNON GARRIGAN, MD,

Defendants-Appellants,

and

STATE OF CALIFORNIA;

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND

REHABILITATION; SAN QUENTIN

STATE PRISON; LOUIE

ESCOBELL, RN; MUHAMMAD

FAROOQ, MD; KIRK A TORRES,

MD,

Defendants.

2 POLANCO V. DIAZ

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted March 8, 2023

San Francisco, California

Filed August 7, 2023

Before: Michelle T. Friedland and Ryan D. Nelson, Circuit

Judges, and Kathleen Cardone, * District Judge.

Opinion by Judge Friedland;

Dissent by Judge R. Nelson

SUMMARY **

Civil Rights/State-Created Danger/COVID-19

The panel affirmed the district court’s denial of

defendants’ motion to dismiss a complaint on the basis of

qualified immunity in an action brought pursuant to 42

U.S.C. § 1983 by the family of San Quentin Prison guard

Gilbert Polanco, who died from complications caused by

COVID-19.

*

The Honorable Kathleen Cardone, United States District Judge for the

Western District of Texas, sitting by designation.

**

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

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

POLANCO V. DIAZ 3

A few months into the COVID-19 pandemic, high-level

officials in the California prison system transferred 122

inmates from the California Institution for Men, where there

was a widespread COVID-19 outbreak, to San Quentin State

Prison, where there were no known cases of the virus. The

transfer sparked an outbreak of COVID-19 at San Quentin

that ultimately killed Polanco and over twenty-five inmates.

The panel held that based on the allegations in the

complaint, defendants were not entitled to qualified

immunity. Plaintiffs sufficiently alleged a violation of

Polanco’s substantive due process right to be free from a

state-created danger, under which state actors may be liable

for their roles in creating or exposing individuals to danger

they otherwise would not have faced.

Taking the allegations in the complaint as true, the

failure to adequately test or screen inmates prior to the

transfer, the transfer itself, and the decision to house the

inmates in open-aired cells upon arriving at San Quentin,

among other things, placed Polanco in a much more

dangerous position than he was in before, the danger was

particularized and sufficiently severe to raise constitutional

concerns, and defendants were aware of the danger that

transferring potentially COVID-positive inmates to San

Quentin would pose to employees.

The panel held that the unlawfulness of defendants’

alleged actions was clearly established by the combination

of two precedents: L.W. v. Grubbs, 974 F.2d 119 (9th Cir.

1992), which recognized a claim under the state-created

danger doctrine arising out of a prison’s disregard for the

safety of a female employee who was raped after being

required to work alone with an inmate known to be likely to

commit a violent crime if placed alone with a woman; and

4 POLANCO V. DIAZ

Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016), which

recognized a claim under the state-created danger doctrine

arising from an employer’s deliberate indifference to

workplace conditions that exposed an employee to

dangerous airborne mold. Accordingly, defendants were not

entitled to qualified immunity.

Dissenting, Judge R. Nelson would hold that defendants

were entitled to qualified immunity because no clearly

established law placed defendants on notice that their alleged

mismanagement of the COVID-19 pandemic at San Quentin

prison was unconstitutional. Contrary to Supreme Court

guidance, the majority employed a high level of generality

to determine that the law was clearly established.

COUNSEL

Joshua C. Irwin (argued), Stefano Abbasciano, and Hima

Raviprakash, Deputy Attorneys General; Fiel D. Tigno,

Supervising Deputy Attorney General; Chris A. Knudsen,

Senior Assistant Attorney General; Rob Bonta, Attorney

General; Attorney General’s Office; Oakland, California; for

Defendants-Appellants.

Michael J. Haddad (argued), Julia Sherwin, Brian

Hawkinson, and Teresa Allen, Haddad & Sherwin LLP,

Oakland, California, for Plaintiffs-Appellees.

Adam R. Pulver, Allison M. Zieve, and Scott L. Nelson,

Public Citizen Litigation Group, Washington, D.C., for

Amicus Curiae Public Citizen.

POLANCO V. DIAZ 5

OPINION

FRIEDLAND, Circuit Judge:

A few months into the COVID-19 pandemic, high-level

officials in the California prison system transferred 122

inmates from the California Institution for Men, where there

was a widespread COVID-19 outbreak, to San Quentin State

Prison, where there were no known cases of the virus. The

transfer sparked an outbreak of COVID-19 at San Quentin

that ultimately killed one prison guard and over twenty-five

inmates. The guard’s family members sued the prison

officials, claiming that the officials violated the guard’s due

process rights. The officials moved to dismiss, arguing that

they were entitled to qualified immunity. The district court

denied the motion with respect to some of the officials, who

then filed this interlocutory appeal. We affirm.

I.

A.

On March 4, 2020, California Governor Gavin Newsom

proclaimed a State of Emergency due to COVID-19. 1 The

declaration was quickly followed by other emergency

measures at the state and local levels, including shelter-in-

place orders and mask mandates. Later that month,

Governor Newsom issued an executive order suspending the

intake of inmates into all state correctional facilities. Around

the same time, California Correctional Health Care Services

adopted a policy opposing the transfer of inmates between

1

In an appeal of a denial of qualified immunity at the motion to dismiss

stage, we accept as true all well-pleaded allegations in the Complaint.

See Padilla v. Yoo, 678 F.3d 748, 757 (9th Cir. 2012).

6 POLANCO V. DIAZ

prisons, reasoning that transfers would “carr[y] [a]

significant risk of spreading transmission of the disease

between institutions.”

Defendants—a group of high-level officials at San

Quentin and the California Department of Corrections and

Rehabilitation (“CDCR”)—were aware of the risks that

COVID-19 posed in a prison setting. All had been briefed

about the dangers of COVID-19, the highly transmissible

nature of the virus, and the necessity of taking precautions

(such as social distancing, mask-wearing, and testing) to

prevent its spread. Defendants were also aware that

containing an outbreak at San Quentin would be particularly

difficult due to its tight quarters, antiquated design, and poor

ventilation. As of late May 2020, though, San Quentin

appeared to be weathering the storm with no known cases of

COVID-19. Other prisons were not so fortunate. The

California Institution for Men (“CIM”) suffered a severe

outbreak, which by late May had killed at least nine inmates

and infected over six hundred.

In an attempt to prevent further harm to CIM inmates, on

May 30, Defendants transferred 122 CIM inmates with high-

risk medical conditions to San Quentin. The transfer did not

go well. Most of the men who were transferred had not been

tested for COVID-19 for over three weeks, and none of the

transferred inmates were properly screened for symptoms

before being “packed” onto buses to San Quentin “in

numbers far exceeding COVID-capacity limits that CDCR

had mandated for inmate safety.” Although some inmates

exhibited symptoms while on the bus, Defendants did not

quarantine the newly arriving inmates. They placed nearly

all the transferred inmates in a housing unit with grated doors

(allowing air to flow in and out of the cells) and had them

POLANCO V. DIAZ 7

use the same showers and eat in the same mess hall as other

inmates.

Two days after the inmates arrived at San Quentin, the

Marin County Public Health Officer learned of the transfer

and scheduled an immediate conference call with some

Defendants. On the call, the Public Health Officer

recommended that the transferred inmates be completely

sequestered from the original San Quentin population, that

all exposed inmates and staff be required to wear masks, and

that staff movement be restricted between different housing

units to prevent the spread of COVID-19. Despite being

timely informed of the Public Health Officer’s

recommendations, Defendants did not heed his advice.

Instead, they ordered that the Public Health Officer be

informed that he lacked the authority to mandate measures

in a state-run prison.

COVID-19 soon began to sweep through San Quentin.

Within days of the transfer, twenty-five of the transferred

inmates had tested positive. Over a three-week period, San

Quentin went from zero confirmed cases of COVID-19 to

nearly five hundred.

In mid-June, a court-appointed medical monitor of

California prisons (the “Receiver”) 2 requested that a group

of health experts investigate the outbreak at San Quentin.

The health experts wrote an “Urgent Memo” warning that

the COVID-19 outbreak at San Quentin could escalate into

2

In response to a class action, the United States District Court for the

Northern District of California held in 2005 that the medical services in

California prisons failed to meet the constitutional minimum. See Plata

v. Schwarzenegger, No. C01-1351, 2005 WL 2932253, at *1 (N.D. Cal.

Oct. 3, 2005). It accordingly appointed a receiver tasked with

establishing a constitutionally adequate medical system. See id.

8 POLANCO V. DIAZ

a “full-blown local epidemic and health care crisis in the

prison and surrounding communities” if not contained. The

memo criticized many practices at San Quentin, noting, for

instance, that personal protective equipment and masks were

not provided to staff and inmates despite being readily

available. Even when staff had masks, many wore them

improperly or failed to wear them at all. The prison’s testing

protocol, too, was inadequate, suffering from what the memo

considered “completely unacceptable” delays. Defendants

were informed of the memo but did not adopt its

recommendations. Indeed, when two research labs offered

to provide COVID-19 testing at the prison, Defendants

refused the offers, even though one offered to do so for free.

The outbreak continued to spread. By July, more than

1,300 inmates and 184 staff had tested positive. Two months

later, those numbers had ballooned to more than 2,100

inmates and 270 staff. As of early September,

approximately twenty-six inmates and one guard had died of

COVID-19.

B.

That one guard was Sergeant Gilbert Polanco. At the

time of the transfer, Polanco was fifty-five years old and had

worked at San Quentin for more than two decades. Polanco

had multiple health conditions that put him at high risk of

mortality if he were to contract COVID-19, including

obesity, diabetes, and hypertension. During the pandemic,

one of his duties was to drive sick inmates—including those

with COVID-19—to local hospitals. On those trips,

Defendants refused to provide Polanco (or the inmates he

was driving) with personal protective equipment.

POLANCO V. DIAZ 9

In late June, Polanco contracted COVID-19. By July, his

condition had worsened, and he was admitted to the hospital.

He died of complications caused by COVID-19 in August.

C.

Polanco’s wife and children (collectively, “Plaintiffs”)

sued Defendants under 42 U.S.C. § 1983 in the United States

District Court for the Northern District of California. Their

Complaint alleges that Defendants violated Polanco’s

substantive due process rights by affirmatively, and with

deliberate indifference, placing him in danger. It also alleges

that Defendants violated Plaintiffs’ substantive due process

rights to familial association. 3

Defendants moved to dismiss, arguing, among other

things, that they are entitled to qualified immunity on

Plaintiffs’ constitutional claims. The district court rejected

that argument, holding that Defendants are not entitled to

qualified immunity on the face of the Complaint.4

Defendants timely appealed the district court’s denial of

qualified immunity.

II.

We have jurisdiction under the collateral order doctrine

to review a district court’s rejection of a qualified immunity

defense at the motion to dismiss stage, Ashcroft v. Iqbal, 556

U.S. 662, 671–72 (2009), and we review such a denial de

novo, Hernandez v. City of San Jose, 897 F.3d 1125, 1131–

3

The Complaint also alleges various statutory and common law claims

that are not at issue in this appeal.

4

Plaintiffs also asserted claims against some high-level officials from

CIM. The district court granted the motion to dismiss with respect to

those defendants. That aspect of the district court’s order is not at issue

in this appeal.

10 POLANCO V. DIAZ

32 (9th Cir. 2018). When engaging in such review, we

“accept[] as true all well-pleaded allegations” and

“construe[] them in the light most favorable to the non-

moving party.” Id. at 1132 (quoting Padilla v. Yoo, 678 F.3d

748, 757 (9th Cir. 2012)).

III.

We must affirm the district court’s denial of qualified

immunity if, accepting all of Plaintiffs’ allegations as true,

Defendants’ conduct “(1) violated a constitutional right that

(2) was clearly established at the time of the violation.”

Ballou v. McElvain, 29 F.4th 413, 421 (9th Cir. 2022). At

the motion to dismiss stage, “dismissal is not appropriate

unless we can determine, based on the complaint itself, that

qualified immunity applies.” O’Brien v. Welty, 818 F.3d

920, 936 (9th Cir. 2016) (quoting Groten v. California, 251

F.3d 844, 851 (9th Cir. 2001)). Based on the Complaint

here, we hold that Defendants are not entitled to qualified

immunity.

A.

Plaintiffs sufficiently allege a violation of Polanco’s due

process right to be free from a state-created danger.

The Fourteenth Amendment’s mandate that “[n]o State

shall . . . deprive any person of life, liberty, or property,

without due process of law” confers both procedural and

substantive rights. DeShaney v. Winnebago Cnty. Dep’t of

Soc. Servs., 489 U.S. 189, 194–95 (1989) (alterations in

original) (quoting U.S. Const. amend. XIV). The

substantive component of that clause “protects individual

liberty against ‘certain government actions regardless of the

fairness of the procedures used to implement them.’”

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)

POLANCO V. DIAZ 11

(quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

The Due Process Clause does not “impose an affirmative

obligation on the State” to protect a person’s life, liberty, or

property; it acts as a “limitation on the State’s power to act”

rather than a “guarantee of certain minimal levels of safety

and security.” DeShaney, 489 U.S. at 195. The “general

rule,” then, is that “a state actor is not liable under the Due

Process Clause ‘for its omissions.’” Pauluk v. Savage, 836

F.3d 1117, 1122 (9th Cir. 2016) (quoting Munger v. City of

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

But there are exceptions to this general rule. See id. As

relevant here, under the state-created-danger doctrine, state

actors may be liable “for their roles in creating or exposing

individuals to danger they otherwise would not have faced.”

Id. (quoting Kennedy v. City of Ridgefield, 439 F.3d 1055,

1062 (9th Cir. 2006)). In the context of public employment,

although state employers have no constitutional duty to

provide their employees with a safe working environment,

see Collins, 503 U.S. at 126, the state-created-danger

doctrine holds them liable when they affirmatively, and with

deliberate indifference, create or expose their employees to

a dangerous working environment. We have recognized, for

instance, that a state employer can be liable under the state-

created-danger doctrine for knowingly assigning an

employee to work in a building infected with toxic mold, see

Pauluk, 836 F.3d at 1125, or for requiring a prison employee

to work alone with an inmate likely to cause her serious

harm, see L.W. v. Grubbs, 974 F.2d 119, 123 (9th Cir. 1992).

To state a due process claim under the state-created-

danger doctrine, a plaintiff must first allege “affirmative

conduct on the part of the state,” Patel v. Kent Sch. Dist., 648

F.3d 965, 974 (9th Cir. 2011) (quoting Munger, 227 F.3d at

1086), that exposed him to “an actual, particularized danger

12 POLANCO V. DIAZ

that [he] would not otherwise have faced,” Martinez v. City

of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). Second, a

plaintiff must allege that the state official acted with

“deliberate indifference” to that “known or obvious danger.”

Id. (quoting Patel, 648 F.3d at 971–72).

1.

Plaintiffs’ allegations satisfy the first requirement, which

has several components. The state must have taken actions

that placed the plaintiff in a “worse position” than he would

have been in “had [the state] not acted at all.” Pauluk, 836

F.3d at 1124 (alteration in original) (quoting Johnson v. City

of Seattle, 474 F.3d 634, 641 (9th Cir. 2007)). The act must

have exposed the plaintiff to an “actual, particularized

danger,” and the resulting harm must have been foreseeable.

Id. at 1125 (quoting Kennedy, 439 F.3d at 1063).

The transfer of 122 inmates from CIM to San Quentin

was plainly affirmative conduct, as was the decision to house

the transferred inmates in open-air cells and have them share

facilities with the general San Quentin population. And the

transfer placed Polanco in a much more dangerous position

than he was in before. Prior to the transfer, there were no

known cases of COVID-19 at San Quentin; after the transfer,

there were many. That harm was foreseeable, because

Defendants transferred inmates from a prison experiencing

an active COVID-19 outbreak to a prison that had managed

to avoid such an outbreak—and did so without properly

testing or screening the transferred inmates for COVID-19,

revising the plan when inmates fell ill on the buses, or

quarantining the inmates upon their arrival. The allegations

POLANCO V. DIAZ 13

paint a clear picture: San Quentin had managed to keep

COVID-19 out, but Defendants brought it in. 5

So too was the danger “particularized.” Affirmative

state action that exposes a broad swath of the public to

“generalized dangers” cannot support a state-created-danger

claim. See Sinclair v. City of Seattle, 61 F.4th 674, 676, 683

(9th Cir. 2023) (holding that the plaintiff had not alleged a

state-created-danger claim because “the City-created danger

was a generalized danger experienced by all those members

of the public who chose to visit” a certain part of the city).

But a danger can be “particularized” even if it is directed

toward a group rather than an individual. See Hernandez,

897 F.3d at 1133 (holding that the danger to which the state

exposed a group of protesters was sufficiently particularized

to support a state-created-danger claim). The danger here

falls into the latter category because the transfer exposed a

“discrete and identifiable group”—prison guards and

inmates at San Quentin—to the dangers of COVID-19. See

Sinclair, 61 F.4th at 683.

Finally, the danger to which Polanco was exposed was

sufficiently severe to raise constitutional concerns.

Although our precedent has not elaborated on the level of

harm required to sustain a state-created-danger claim, it has

been implicit in our cases that not any risk will do—the harm

must be severe enough to constitute a “danger.” See, e.g.,

Grubbs, 974 F.2d at 120 (assault, battery, kidnapping, and

rape); Kennedy, 439 F.3d at 1058 (murder); Pauluk, 836

5

As alleged in the Complaint, each Defendant was involved in the

administrative decisions underlying the due process claim. We

accordingly reject Defendants’ argument that some Defendants are

entitled to qualified immunity because of their status as “medical

officials.”

14 POLANCO V. DIAZ

F.3d at 1120 (serious illness leading to death); Hernandez,

897 F.3d at 1130 (assault and battery resulting in serious

injuries); Martinez, 943 F.3d at 1269 (physical and sexual

violence). We do not attempt to delimit here the range of

harms that count, but we are confident that exposure to

COVID-19, at least in a pre-vaccine world, does.

Defendants respond that they cannot be held responsible

for Polanco’s death, because “[g]uards are free to refuse to

work in a prison.” In Defendants’ view, Polanco assumed

the risk of COVID-19 exposure by accepting—and not

quitting—his job as a corrections officer. But that argument

runs headlong into Pauluk, in which we held that a public

employer’s deliberately indifferent transfer of an employee

to an office building infected with toxic mold would be a

constitutional violation even if the employee was aware of

the mold and presumably could have quit his job when he

learned of the transfer. See 836 F.3d at 1125. If the

employee’s ability to leave his post did not defeat the

constitutional claim in Pauluk, it cannot defeat the claim

here. 6

6

Defendants rely on a Third Circuit case that suggested in dicta that

public employees’ freedom to leave their jobs may limit the scenarios in

which employees can bring claims under the state-created-danger

doctrine to those involving “deliberate misrepresentations” by their

public employer about the level of danger. See Kaucher v. County of

Bucks, 455 F.3d 418, 430 (3d Cir. 2006). But the Third Circuit has since

refrained from embracing that dicta, describing Kaucher as standing for

the proposition that “a government employee may bring a substantive

due process claim against his employer if the state compelled the

employee to be exposed to a risk of harm not inherent in the workplace.”

Kedra v. Schroeter, 876 F.3d 424, 436 n.6 (3d Cir. 2017). That

description of the state-created-danger doctrine aligns with the doctrine

in our circuit.

POLANCO V. DIAZ 15

2.

Plaintiffs’ allegations also satisfy the “deliberate

indifference” requirement. In the context of a state-created-

danger claim, deliberate indifference is a subjective standard

that requires a plaintiff to allege facts supporting an

inference that the official “recognized an unreasonable risk

and actually intended to expose the plaintiff to such risk.”

Herrera v. L.A. Unified Sch. Dist., 18 F.4th 1156, 1160–61

(9th Cir. 2021). 7

The Complaint alleges that Defendants were aware of the

danger that transferring potentially COVID-positive inmates

to San Quentin would pose to San Quentin’s employees. By

the time of the transfer, state and local governments had

enacted a range of emergency health measures designed to

prevent the spread of COVID-19, including requirements to

mask when interacting with individuals outside one’s

household. As Plaintiffs allege, by May 2020, anyone in

California “vaguely paying attention” to the news would

have understood that COVID-19 was “highly contagious”

and “potentially deadly” and would have been aware of the

basic rules to prevent its spread, such as limiting contact with

people outside one’s household, social-distancing, wearing

masks, quarantining after exposure, and testing. In addition,

California Correctional Health Care Services had opposed

transfers between prisons because of the “significant risk” of

7

In a different context, we held that the requisite mental state for a

Fourteenth Amendment due process claim is an objective form of

deliberate indifference. See Castro v. County of Los Angeles, 833 F.3d

1060, 1069–70 (9th Cir. 2016) (en banc). But we have continued to

apply a purely subjective test to state-created-danger claims. See

Herrera, 18 F.4th at 1160–61 (recognizing a tension between the

requisite mental states in Castro and post-Castro state-created-danger

cases but holding that it was bound by the latter cases).

16 POLANCO V. DIAZ

transmitting the disease between institutions. Plaintiffs also

allege that Defendants understood that San Quentin’s

construction posed unique challenges to containing a

potential outbreak due to its tight quarters, shared spaces,

and poor ventilation.

Despite that knowledge, Defendants went ahead with the

transfer. That allegation, alone, does not compel an

inference that Defendants were deliberately indifferent—for

example, had Defendants acted to mitigate the risks inherent

in a transfer, those efforts could show that Defendants had

not intended to expose prison employees to an unreasonable

risk. See Patel, 648 F.3d at 976 (holding that a teacher’s

“lapse in judgment” did not rise to the level of deliberate

indifference because she was “fairly active” in attempting to

protect the plaintiff); Herrera, 18 F.4th at 1163–64 (holding

that a school aid was not deliberately indifferent to the

dangers a student faced because the aid neither “abandoned”

the student nor “left him completely without protection”).

But according to the Complaint, Defendants did not

attempt to mitigate the risk. Despite their knowledge of the

dangers of COVID-19 and of the basic measures to prevent

its spread, Defendants did not take precautions to avoid

transferring COVID-positive inmates to San Quentin or to

decrease the likelihood that COVID-19 would spread from

transferred inmates to San Quentin employees. They moved

ahead with the transfer while knowing that the inmates’ test

results were woefully out of date. They failed to properly

screen the inmates for symptoms before the transfer; many

inmates were screened too early to determine whether they

had symptoms before boarding crowded buses. And

Defendants increased the risk that COVID-19 would spread

throughout the prison by placing the transferred inmates in

cells with grated rather than solid doors, having transferred

POLANCO V. DIAZ 17

inmates use the same showers and mess hall as the other

inmates, and failing to provide masks or testing to inmates

and staff.

Defendants protest that the outbreak at CIM necessitated

a rapid transfer. But even if we were to assume that the

transfer itself could not have been done more carefully,

Defendants disregarded the safety of San Quentin employees

after the transfer, repeatedly ignoring express warnings that

their COVID-19 policies were insufficient and dangerous.

Two days after the transfer, the Marin County Public Health

Officer recommended that all transferred inmates be

completely sequestered from the original San Quentin

population and that all exposed inmates and staff be required

to wear masks. Rather than adopt the Health Officer’s

recommendations, Defendants ordered that the Officer be

informed that he lacked the authority to mandate measures

in their prison. Further warnings came a few weeks later,

when a group of health experts prepared an “Urgent Memo”

for Defendants. Those experts cautioned that San Quentin

was at high risk of a “catastrophic super-spreader event” due

to its inadequate testing and “grave lack of personal

protective equipment and masks.” Defendants did not

follow those experts’ recommendations to adopt masking

and testing requirements either, despite the availability of

both masks and tests.

Taking the allegations in the Complaint as true, this is a

textbook case of deliberate indifference: Defendants were

repeatedly admonished by experts that their COVID-19

policies were inadequate, yet they chose to disregard those

warnings. See Hernandez, 897 F.3d at 1136 (holding that

allegations rose to the level of subjective deliberate

indifference because defendants were “aware of the danger

18 POLANCO V. DIAZ

to the plaintiffs” and yet “continued” their problematic

course of conduct).

In their briefs on appeal, Defendants offer a different

telling of the facts. In their view, the allegations do not rise

to the level of deliberate indifference because Defendants

faced an impossible tradeoff: the welfare of high-risk CIM

inmates on the one hand and the safety of San Quentin

employees on the other. The Constitution, Defendants

argue, cannot require prison officials to place the safety of

their staff above the safety of the inmates entrusted to their

care.

We are sympathetic to the competing priorities that

public officials had to navigate during the early days of the

COVID-19 pandemic. But the specific tradeoff that

Defendants invoke here is incompatible with the Complaint.

Taking Plaintiffs’ allegations as true and drawing reasonable

inferences in their favor, as we must at this stage of the

proceedings, properly testing and screening the inmates

before the transfer would have made the transfer safer for

both San Quentin employees and the transferred inmates.

Quarantining the transferred inmates, too, would have

benefitted all parties. And when it comes to masks and tests,

the Complaint expressly alleges that there was no such

tradeoff, asserting that masks and other personal protective

equipment were “easily obtainable” and highlighting two

separate occasions on which Defendants turned down labs’

offers to provide COVID-19 testing at San Quentin, at least

one of which offered to do so for free. On the face of the

Complaint, there is no room for Defendants’ version of the

events. We therefore hold that Plaintiffs have sufficiently

alleged that Defendants acted with deliberate indifference

toward the health and safety of San Quentin employees,

POLANCO V. DIAZ 19

including Polanco, satisfying the second prong of the state-

created-danger claim.

B.

Not only has Polanco alleged a violation of his due

process right to be free from a state-created danger, but that

right was also “clearly established at the time of the

violation.” Pauluk, 836 F.3d at 1125 (quoting Espinosa v.

City & County of San Francisco, 598 F.3d 528, 532 (9th Cir.

2010)).

For the unlawfulness of an officer’s conduct to be

“clearly established,” it must be the case that, “at the time of

the officer’s conduct, the law was ‘sufficiently clear that

every reasonable official would understand that what he

[wa]s doing’ [wa]s unlawful.” District of Columbia v.

Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)). “In other words, existing

law must have placed the [un]constitutionality of the

officer’s conduct ‘beyond debate.’” Id. (quoting al-Kidd,

563 U.S. at 741).

Plaintiffs have met that demanding standard because the

unlawfulness of Defendants’ alleged actions was clearly

established by the combination of two of our precedents:

L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), and Pauluk v.

Savage, 836 F.3d 1117 (9th Cir. 2016). 8

8

We routinely rely on the intersection of multiple cases when holding

that a constitutional right has been clearly established. See, e.g., Ioane

v. Hodges, 939 F.3d 945, 957 (9th Cir. 2018) (“Taken together, the

holdings from [four prior cases] put the unlawfulness of [the officer’s]

conduct beyond debate.”); Gordon v. County of Orange, 6 F.4th 961, 971

(9th Cir. 2021) (holding that the relevant right was clearly established by

20 POLANCO V. DIAZ

In Grubbs, we recognized a state-created-danger claim

arising out of a prison’s disregard for the safety of one of its

employees. The plaintiff, a nurse working in an Oregon

correctional institution, was raped by an inmate. 974 F.2d at

120. She sued her supervisors under § 1983, claiming that

they had violated her due process rights by requiring her to

work alone with a “violent sex offender” who the officers

knew was “very likely to commit a violent crime if placed

alone with a female.” Id. We denied the state’s motion to

dismiss because the nurse alleged that her supervisors “took

affirmative steps to place her at significant risk” and “knew

of the risks.” Id. at 122.

Grubbs presents a close analogy to this case. There, as

here, a public employee was harmed due to her employer’s

deliberately indifferent conduct. And there, as here, the

employee worked in a correctional institution and was

harmed in the process of carrying out her job duties. Yet

there are also differences; the danger in Grubbs stemmed

from a violent inmate, whereas Polanco was harmed by a

disease that he contracted at his workplace. If Grubbs were

the only relevant precedent, whether Polanco’s due process

right was clearly established might be a close question.

But Grubbs does not stand alone. In Pauluk, we again

recognized a claim under the state-created-danger doctrine,

this time arising from an employer’s deliberate indifference

to workplace conditions posing serious health risks. A state

the “principles drawn from” three cases); Ballou v. McElvain, 29 F.4th

413, 426-27 (9th Cir. 2022) (holding that a right was clearly established

by the intersection of two cases). This approach is required by the

Supreme Court’s instruction that qualified immunity is improper where

“a legal principle [has] a sufficiently clear foundation in then-existing

precedent.” Wesby, 138 S. Ct. at 589.

POLANCO V. DIAZ 21

employee there alleged that his employer violated his due

process rights by transferring him to an office building that

the employer knew was infested with toxic mold that the

employee would foreseeably breathe. 836 F.3d at 1119; see

also id. at 1134 (Noonan, J., dissenting) (“Pauluk . . . died

from inhaling poisonous air in the workplace.”). We held

that the plaintiff had produced sufficient evidence from

which a reasonable jury could find a constitutional violation

by concluding that the state employer affirmatively

transferred the employee to the infested building—placing

him in a “worse position” than he had been in before—and

that the employer acted with deliberate indifference in

exposing the employee to the dangerous mold. Id. at 1125.

Together, Grubbs and Pauluk put public officials on

notice that they may be liable under the state-created-danger

doctrine in a scenario where:

(1) the harmed party is their employee (Grubbs and

Pauluk);

(2) the harmed party encountered the relevant danger in

the course of carrying out employment duties in a

correctional facility (Grubbs);

(3) the danger was created by requiring the employee to

work in close proximity to people who posed a risk

(Grubbs);

(4) the physical conditions of the workplace contributed

to the danger (Pauluk); and

(5) the danger was a potentially fatal illness caused by

breathing contaminated air (Pauluk).

Defendants argue that this case is nonetheless unique

because it involves a (novel) viral outbreak. But after

22 POLANCO V. DIAZ

Pauluk, officers were on notice that they could be held liable

for affirmatively exposing their employees to workplace

conditions that they knew were likely to cause serious

illness, including dangers invisible in the air. And taking

Plaintiffs’ allegations as true—again, as we must do at this

stage of the proceedings—Defendants knew just that. 9 The

fact that the illness here was a newly discovered

communicable disease rather than a toxin would not have led

a reasonable official to conclude that the danger could be

ignored. 10 See al-Kidd, 563 U.S. at 741 (“We do not require

a case directly on point, but existing precedent must have

placed the statutory or constitutional question beyond

debate.”). COVID-19 may have been unprecedented, but the

legal theory that Plaintiffs assert is not.

C.

Defendants raise three additional arguments for why

they are entitled to qualified immunity. None succeed.

9

Underpinning much of the dissent is the premise that conditions were

simply too uncertain in the spring of 2020 to hold government officials

liable for their responses to COVID-19. But at the motion to dismiss

stage, we must take all of Plaintiffs’ allegations as true, and Plaintiffs

have plausibly alleged that Defendants knew of, and consciously

disregarded, the risk that COVID-19 posed to San Quentin employees.

See supra Section III.A.2. If Defendants can show that they in fact

lacked such awareness, they may be entitled to qualified immunity at a

later stage of this litigation.

10

In other contexts, we have rejected the argument that the novelty of a

particular means of causing harm should, in and of itself, insulate

officials from liability. See, e.g., Nelson v. City of Davis, 685 F.3d 867,

884 (9th Cir. 2012) (“An officer is not entitled to qualified immunity on

the ground that the law is not clearly established every time a novel

method is used to inflict injury.” (cleaned up) (quoting Deorle v.

Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001))).

POLANCO V. DIAZ 23

1.

Defendants urge us to take judicial notice of testimony

that the Receiver gave before the California State Senate,

which they argue shows that they were just following orders.

A court may take judicial notice of facts that are “not

subject to reasonable dispute” because they are either

“generally known within the trial court’s territorial

jurisdiction” or “can be accurately and readily determined

from sources whose accuracy cannot reasonably be

questioned.” Fed. R. Evid. 201(b). The fact that the

Receiver testified before the California Senate is judicially

noticeable under that standard, but that does not mean we

can consider the testimony for its truth. See Khoja v.

Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir.

2018) (“Just because [a] document itself is susceptible to

judicial notice does not mean that every assertion of fact

within that document is judicially noticeable for its truth.”).

Considering the Receiver’s version of the events would

transform Defendants’ motion to dismiss into a motion for

summary judgment without offering Plaintiffs an

opportunity to depose the Receiver and further develop the

record. See Fed. R. Civ. P. 12(d). The district court did not

abuse its discretion in declining Defendants’ request to take

judicial notice of the Receiver’s testimony. 11

And even if the testimony could be considered for its

truth, Defendants would still not be entitled to immunity. In

11

We also reject Defendants’ argument that the Complaint’s mention of

the Receiver’s testimony incorporated the full testimony into the

Complaint by reference. See Orellana v. Mayorkas, 6 F.4th 1034, 1043

(9th Cir. 2021) (holding that the “mere mention” of a document “is

insufficient to incorporate” its contents into a complaint (quoting Tunac

v. United States, 897 F.3d 1197, 1207 n.8 (9th Cir. 2018))).

24 POLANCO V. DIAZ

his testimony before the California Senate, the Receiver

suggested that he was involved in the decision to transfer

inmates out of CIM, but he did not indicate that he directed

Defendants to transfer inmates to San Quentin. The

testimony also does not suggest that the Receiver directed

Defendants’ post-transfer protocols.

This case is therefore unlike Hines v. Youseff, 914 F.3d

1218 (9th Cir. 2019), or Rico v. Ducart, 980 F.3d 1292

(9th Cir. 2020), on which Defendants rely. In both of those

cases, the plaintiffs’ claims arose from actions state officials

took while following the express orders of a federal receiver

or an overseeing district court. See Hines, 914 F.3d at 1225,

1231; Rico, 980 F.3d at 1299–300. Even if we were to

consider the Receiver’s testimony alongside the Complaint,

that is not what the allegations and testimony suggest

happened here.

2.

Defendants next invoke a statute that they argue would

have led reasonable prison officials to believe that they could

handle the COVID-19 outbreak however they saw fit,

without a risk of liability. We reject that argument because

the statute does not affect the scope or clarity of the

underlying constitutional right, which is all that qualified

immunity considers.

The Public Readiness and Emergency Preparedness

(“PREP”) Act, 42 U.S.C. § 247d-6d, “provides immunity

from federal and state law claims relating to the

administration of certain medical countermeasures during a

declared public health emergency.” Cannon v. Watermark

Ret. Cmtys., Inc., 45 F.4th 137, 138 (D.C. Cir. 2022).

Congress passed the Act in 2005 to encourage during times

of crisis the “development and deployment of medical

POLANCO V. DIAZ 25

countermeasures” (such as diagnostics, treatments, and

vaccines) by limiting legal liability relating to their

administration. Id. at 139 (citation omitted).

The district court held that the PREP Act does not confer

immunity here, and Defendants did not appeal (and do not

attempt to dispute here) that aspect of the district court’s

order. But Defendants nonetheless assert that they are

entitled to qualified immunity because of the Act’s

existence, which Defendants argue would have led a

reasonable officer to believe that he would be immune from

liability for any actions even arguably within the Act’s

scope.

Defendants’ argument conflates the existence of a

constitutional right with the availability of a remedy for a

violation of that right. Qualified immunity turns on the

existence and clarity of the underlying right; an officer is

entitled to constitutional immunity from a civil damages suit

only if his conduct “does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.” Pearson v. Callahan, 555 U.S.

223, 231 (2009) (emphasis added) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The PREP Act,

however, limits remedies, not rights. See 42 U.S.C. § 247d-

6d(a)(1) (providing that “a covered person shall be immune

from suit and liability under Federal and State law” with

respect to certain claims (emphasis added)). The statute does

not (and could not) narrow the scope of a person’s

constitutional rights; rather, it limits an injured person’s

ability to secure a remedy in some circumstances.

3.

Lastly, Defendants urge us to consider the policy

consequences of permitting this lawsuit to proceed. They

26 POLANCO V. DIAZ

warn that allowing Plaintiffs to further pursue their due

process claims will cause officials to “delay or abandon

necessary inmate healthcare decisions” in the future. But the

qualified immunity inquiry already takes policy concerns of

that sort into account. See Harlow, 457 U.S. at 814

(describing qualified immunity as the “best attainable

accommodation of [the] competing values” of permitting

“vindication of constitutional guarantees” on the one hand

and avoiding “social costs,” such as “the diversion of official

energy from pressing public issues,” on the other). It is not

for us to upset the careful balance that the Supreme Court

has struck in crafting qualified immunity doctrine. 12

IV.

For the foregoing reasons, we AFFIRM.

12

Plaintiffs also allege that Defendants violated their due process right

to familial association with Polanco. On appeal, Defendants respond by

arguing only that the familial association claims are “derivative” of the

state-created-danger claim asserted on Polanco’s behalf and that they are

therefore entitled to qualified immunity on all claims for the same

reasons. Defendants have accordingly forfeited any other argument that

they are entitled to qualified immunity on the familial association claims.

See AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 638

(9th Cir. 2012) (holding that a party forfeited an argument by failing to

“‘specifically and distinctly’ argue the issue in his opening brief”

(quoting United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992))). We

therefore affirm the district court’s denial of qualified immunity with

respect to the familial association claims as well.

POLANCO V. DIAZ 27

R. NELSON, dissenting:

Because the law is not clearly established, I conclude that

the Defendants are entitled to qualified immunity. As such,

I would reverse and therefore dissent. 1

I

The conduct at issue begins in the earliest days of the

COVID-19 pandemic. In May 2020, the science on the virus

was far from settled, including best practices for combatting

the virus. Prison officials at San Quentin State Prison and

the California Department of Corrections and Rehabilitation

faced a difficult task—managing prison affairs amid global

chaos.

If Defendants here tried to do their best, it is safe to say

that they either failed or need to reassess. The facts alleged

are troubling and tragic. These allegations, which must be

taken as true at this stage, are sufficient for a negligence

claim—perhaps even gross negligence. But mere negligence

does not establish a violation of the Constitution. Tabares v.

City of Huntington Beach, 988 F.3d 1119, 1122 (9th Cir.

2021). Even if the complaint alleges a constitutional

violation, as the majority holds, it is not one that was clearly

established at the time—a time which, it bears repeating, was

during one of the most novel and disruptive pandemics in a

century.

1

Because I find that the law is not clearly established here, I would not

analyze the underlying constitutional violation. See Pearson v.

Callahan, 555 U.S. 223, 236 (2009) (“The judges of the district courts

and the courts of appeals should be permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the

particular case at hand.”).

28 POLANCO V. DIAZ

Hindsight is 20/20, and we cannot view the clearly

established inquiry through the lens of what we know or

believe to be true now. Graham v. Connor, 490 U.S. 386,

396–97 (1989) (“The ‘reasonableness’ of a particular use of

force must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of

hindsight.”). The COVID-19 pandemic was unprecedented.

Therefore, to say that the law was clearly established in my

view disregards the exacting legal standard to overcome a

qualified immunity defense.

The standard for clearly established law is “demanding”

and “protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” District of Columbia v. Wesby,

138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)). “[E]xisting precedent must have

placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The

right must be so clear “that every ‘reasonable official would

[have understood] that what he is doing violates that right.’”

Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). And “[a] rule is too general if the unlawfulness of

the officer’s conduct ‘does not follow immediately from the

conclusion that [the rule] was firmly established.’” Wesby,

138 S. Ct. at 590 (quoting Anderson, 483 U.S. at 641).

The Supreme Court has repeatedly told the Ninth Circuit

in particular “not to define clearly established law at a high

level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (per curiam) (quoting City & County of San

Francisco v. Sheehan, 575 U.S. 600, 613 (2015)); see also

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8–9 (2021) (per

curiam); City of Escondido v. Emmons, 139 S. Ct. 500, 503–

04 (2019) (per curiam); al-Kidd, 563 U.S. at 742; Brosseau

v. Haugen, 543 U.S. 194, 197–201 (2004) (per curiam). This

POLANCO V. DIAZ 29

is because “[t]he dispositive question is ‘whether the

violative nature of particular conduct is clearly

established.’” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per

curiam) (quoting al-Kidd, 563 U.S. at 742).

As is not uncommon in our circuit, the majority

regrettably fails to heed this guidance. Making matters

worse, in employing the high level of generality that the

Supreme Court has chastised us for, the majority concludes

that clearly established means “close enough.” That is not

the law.

II

The majority identifies two cases that, in its view, clearly

establish the constitutional violation: (1) L.W. v. Grubbs, 974

F.2d 119 (9th Cir. 1992), and (2) Pauluk v. Savage, 836 F.3d

1117 (9th Cir. 2016). Maj. at 19–20. Both cases fail to meet

the high burden that the Supreme Court requires.

The majority claims that Grubbs “presents a close

analogy to this case.” Maj. at 20. But “close,” by definition,

fails to satisfy the standard for clearly established. In

Grubbs, a nurse was hired to work in an institution’s medical

clinic and was specifically led to believe that she would not

have to work alone with violent sex offenders. 974 F.2d at

120. She was then attacked when she was left alone with a

known violent sex offender who had failed all treatment

programs at the institution and who “was considered very

likely to commit a violent crime if placed alone with a

female.” Id. Unfortunately, the offender assaulted, battered,

kidnapped, and raped the nurse. See id.

The facts of Grubbs deeply contrast with those here too

much to clearly establish the law. The majority suggests that

because “there, as here, the employee worked in a

30 POLANCO V. DIAZ

correctional institution and was harmed in the process of

carrying out her job duties,” Maj. at 20, that this supports a

finding of clearly established law. But this falls directly into

the “too high of a level of generality” conundrum that we

have repeatedly been warned against applying. See al-Kidd,

563 U.S. at 742 (“We have repeatedly told courts—and the

Ninth Circuit in particular—not to define clearly established

law at a high level of generality.” (cleaned up)). Working in

the same type of facility and suffering harm as an employee

cannot place everything unconstitutional “beyond debate.”

See id. at 741. Such a holding would strip the clearly

established standard of all its teeth.

The majority all but concedes that the clearly established

standard cannot be met. As it recognizes, “there are also

differences; the danger in Grubbs stemmed from a violent

inmate, whereas Polanco was harmed by a disease that he

contracted at his workplace.” Maj. at 20. The majority

explains why Grubbs cannot clearly establish the law here.

For a facility to directly place a violent person alone with an

employee does nothing to clearly establish the law for the

constitutional standards of an invisible, non-human, and

novel global virus wafting through the air. Respectfully,

there is no question that the conduct at issue in Grubbs fails

to have put the officials here “on notice” that their behavior

relating to their response to COVID-19 was

unconstitutional. See, e.g., Wesby, 138 S. Ct. at 589.

The majority seemingly agrees: “[i]f Grubbs were the

only relevant precedent, whether Polanco’s due process right

was clearly established might be a close question.” Maj. at

20. But the majority then asserts that the law is clearly

established because “Grubbs does not stand alone,” and

relies on Pauluk, 836 F.3d 1117, as well.

POLANCO V. DIAZ 31

But Pauluk is not dispositive either. There, an employee

died from complications from toxic mold in his workplace.

Id. at 1119; Maj. 20-21. But again, the differences here are

distinguishable enough that they cannot support a holding of

clearly established law.

To begin, the law was not previously established before

Pauluk. Id. at 1121 (granting qualified immunity because it

found the law was not clearly established). And even though

the Pauluk court noted that the danger at issue was due to

physical conditions in the workplace, id. at 1119, this still

cannot have put the officers on notice that their conduct in

handling COVID-19 would be unconstitutional. The state-

created danger in Pauluk was both open and notorious: There

was a years-long history of mold; Pauluk repeatedly reported

the presence of mold in the building and near his office desk;

and Pauluk was exposed to said mold for over five years

before the decline of his health and eventual passing. See id.

Pauluk also repeatedly requested a transfer to a new

workplace because of the mold but was denied by his

superiors, who were fully aware of the mold infestation. See

id. Therefore, the officials in Pauluk were not only aware

the danger existed, but they also fully understood the risks

of mold exposure and refused to remedy the problem or

permit Pauluk to remedy it himself by transferring

workplaces for years. See id.

None of that exists here. Pauluk, like Grubbs, contrasts

with the rapidly evolving nature of COVID-19. During the

initial months of the pandemic, guidance was uncertain,

developing, and consistently changing. 2 The same cannot be

2

The majority counters that Plaintiffs’ have alleged that Defendants

knew of, and consciously disregarded, the risk that COVID-19 posed to

32 POLANCO V. DIAZ

said about toxic mold. The exposure of COVID-19 alleged

here did not persist over a matter of years in which the

subject brought the danger to the attention of any official, let

alone Defendants. Even if the complaint alleges that

Defendants knew or should have appreciated the risks to

Polanco, there is no allegation that Polanco raised the

official’s COVID-19 response as an issue or requested a

transfer. Rather than request transfer or reassignment,

Polanco volunteered to take on more shifts. The facts as

alleged also do not indicate that Polanco was prohibited from

taking any COVID-19 precautions he saw fit, such as

San Quentin employees. Maj. at 22 n.9. But this is not dispositive. We

have held that “a reasonable prison official understanding that he cannot

recklessly disregard a substantial risk of serious harm, could know all of

the facts yet mistakenly, but reasonably, perceive that the exposure in

any given situation was not that high.” Sandoval v. County of San Diego,

985 F.3d 657, 672 (9th Cir. 2021), cert. denied sub nom. San Diego

County v. Sandoval, 142 S. Ct. 711 (2021) (cleaned up). Thus, the

‘dispositive inquiry in the clearly established analysis is whether it would

be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted, based on the law at the time.” Id. Even

accepting the allegation that Defendants knew about the risks of COVID-

19 does not change the novelty of the pandemic—or that Pauluk and

Grubbs do not clearly establish the law based on the facts alleged by

plaintiffs.

That Defendants may be entitled to qualified immunity on summary

judgment, Maj. at 22 n.9, is cold comfort. The “‘driving force’ behind

creation of the qualified immunity doctrine was a desire to ensure that

insubstantial claims against government officials [will] be resolved prior

to discovery.” Pearson, 555 U.S. at 231 (quoting Anderson v. Creighton,

483 U.S. 635, 640 n.2 (1987) (cleaned up)). Accordingly, the Supreme

Court has repeatedly stressed the “importance of resolving immunity

questions at the earliest possible stage in litigation.” Hunter v. Bryant,

502 U.S. 224, 227 (1991) (per curiam).

POLANCO V. DIAZ 33

wearing a mask or bringing in his own personal protective

equipment. These are meaningful distinctions from Pauluk.

The majority concludes that the differences between

toxic mold and COVID-19 are a distinction without a

difference. Maj. at 21-22. I disagree. COVID-19 presented

prison officials with a rapidly emerging and evolving

challenge that is simply different in kind from the problems

facing employers receiving continuing complaints over

years about mold. This does not satisfy the high threshold

the court’s caselaw commands for law to be clearly

established. 3

The majority cites no other case law that would clearly

establish the law here. Instead, the majority combines what

it perceives to be the most compelling attributes of Grubbs

and Pauluk together to show that the law is clearly

established. 4 But this mishmash of those cases still

examines the law at too high of a level of generality. Denial

of qualified immunity requires a factual case on point, even

if not perfect, that places the Defendants on notice that their

conduct was unconstitutional beyond debate. al-Kidd, 563

U.S. at 741. It is therefore no answer to say that “COVID-

19 may have been unprecedented, but the legal theory that

3

The majority relies on our decision in Nelson v. City of Davis, 685 F.3d

867, 884 (9th Cir. 2012), for the proposition that “[a]n officer is not

entitled to qualified immunity on the ground that the law is not clearly

established every time a novel method is used to inflict injury.” Maj. at

22 n.8 (quoting Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir.

2001)). Even so, our case law must clearly establish the constitutional

violation. Here, no such law exists.

4

Even combined, Maj. at 20 n.8, Grubbs and Pauluk do not establish the

law. Indeed, Grubbs can hardly add much when Pauluk held that the

law was not clearly established in 2016. And Pauluk does not clearly

establish the law here with sufficient specificity.

34 POLANCO V. DIAZ

Plaintiffs assert is not.” Maj. at 22. That holding is far more

dangerous to our future precedent, as it disregards the clearly

established inquiry we must assess here. And a shared legal

theory does not clearly establish the law because it “does not

necessarily follow immediately from the conclusion that [the

rule] was firmly established.” Wesby, 138 S. Ct. at 590

(quoting Anderson, 483 U.S. at 641). This reflects the same

logical flaw as the discussion of Grubbs: some similarity is

not enough.

It is also telling that plaintiffs cite no other binding

authority that clearly establishes the law beyond Grubbs and

Pauluk. I would thus also find that plaintiffs have not met

their burden of proof to foreclose qualified immunity. See,

e.g., Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.

1991) (“The plaintiff bears the burden of proof that the right

allegedly violated was clearly established at the time of the

alleged misconduct.”); see also Shafer v. County of Santa

Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017). To show a

clearly established right, plaintiffs must demonstrate the

right was clear “in light of the specific context of the case,

not as a broad general proposition.” Keates v. Koile, 883

F.3d 1228, 1239 (9th Cir. 2018) (quoting Mullenix, 577 U.S.

at 12). In the specific context of this case, they have not done

so.

III

No clearly established law placed the Defendants on

notice that their alleged mismanagement of the COVID-19

pandemic at San Quentin prison was unconstitutional such

that every “reasonable official would [have understood] that

what he is doing violates that right.” al-Kidd, 563 U.S. at

742 (citation omitted). As such, Defendants are properly

POLANCO V. DIAZ 35

entitled to qualified immunity. I would reverse and therefore

respectfully dissent.