Michael Hampton v. State of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL HAMPTON; No. 22-15481

JACQUELINE HAMPTON,

Plaintiffs-Appellees, D.C. No.

3:21-cv-03058-LB

v.

STATE OF CALIFORNIA; OPINION

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND

REHABILITATION; SAN QUENTIN

STATE PRISON; RALPH DIAZ;

RONALD DAVIS, Warden;

RONALD BROOMFIELD;

CLARENCE CRYER; ALISON

PACHYNSKI; SHANNON

GARRIGAN; LOUIE ESCOBELL;

MUHAMMAD FAROOQ; KIRK A

TORRES; ESTATE OF ROBERT S.

THARRATT,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of California

Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted May 10, 2023

San Francisco, California

2 HAMPTON V. STATE OF CALIFORNIA

Filed October 3, 2023

Before: Michelle T. Friedland and Mark J. Bennett, Circuit

Judges, and Richard D. Bennett,* District Judge.

Opinion by Judge Friedland

SUMMARY**

Prisoner Civil Rights/COVID-19

On interlocutory appeal, the panel (1) affirmed in part

and reversed in part the district court’s order denying

defendants’ motion to dismiss on the basis of immunity

under the Public Readiness and Emergency Preparedness

Act (“PREP Act”) and qualified immunity in an action

brought against California prison officials arising from the

death of a San Quentin inmate from COVID-19; and

(2) dismissed for lack of jurisdiction defendants’ claims

asserting immunity under state law.

On May 30, 2020, defendants transferred 122 inmates

from the California Institution for Men, which had suffered

a severe COVID-19 outbreak, to San Quentin Prison, where

there were no known cases of the virus, resulting in an

*

The Honorable Richard D. Bennett, United States Senior District Judge

for the District of Maryland, 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.

HAMPTON V. STATE OF CALIFORNIA 3

outbreak that killed one prison guard and over twenty-five

inmates, including plaintiff’s husband, Michael Hampton.

Determining that the denial of PREP Act immunity was

an appealable collateral order, the panel held that defendants

were not, on the face of the complaint, entitled to immunity

under the PREP Act, which limits legal liability for the

administration of medical countermeasures (such as

diagnostics, treatments, and vaccines) during times of crisis.

The panel held that the PREP Act does not provide immunity

against claims arising from the failure to administer a

covered countermeasure. Here, plaintiff alleged that

defendants were aware prior to the inmates’ transfer that

their COVID-19 test results were so outdated as to be

essentially irrelevant. It therefore was plausible to infer that

the testing results did not contribute to the decision to

transfer the inmates—and, accordingly, did not contribute to

Hampton’s death. Once post-transfer testing occurred, the

damage had been done. Because the allegations did not

describe a causal relationship between the administration of

testing and Hampton’s death, plaintiff’s claims were not

precluded by the PREP Act.

The panel held that defendants were not entitled to

qualified immunity on plaintiff’s Eighth Amendment claim,

which adequately alleged that defendants acted with

deliberate indifference to the health and safety of San

Quentin inmates, including Hampton. The right at issue—

to be free from exposure to a serious disease—was clearly

established since at least 1993, when the Supreme Court

decided Helling v. McKinney, 509 U.S. 25 (1993), and under

this circuit’s precedent. All reasonable prison officials

would have been on notice in 2020 that they could be held

liable for exposing inmates to a serious disease, including a

serious communicable disease.

4 HAMPTON V. STATE OF CALIFORNIA

Finally, the panel held that it lacked jurisdiction to

consider whether officials were entitled to immunity under

state law. Because the state law immunities on which

defendants relied were immunities from liability, not from

suit, defendants could not invoke the collateral order

doctrine to immediately appeal the district court’s rejection

of those state law defenses.

In an accompanying memorandum disposition, the panel

reversed the district court’s denial of qualified immunity on

plaintiff’s due process claim for violation of her own right to

familial association with Hampton.

COUNSEL

Cassandra J. Shryock (argued) and Robert M. Perkins III,

Deputy Attorneys General; Jeffrey T. Fisher, Supervising

Deputy Attorney General; Monica N. Anderson, Senior

Assistant Attorney General; Rob Bonta, California Attorney

General; Office of the California Attorney General, San

Francisco, California; for Defendants-Appellants.

Michael J. Haddad (argued), Julia Sherwin, and Teresa

Allen, Haddad & Sherwin LLP, Oakland, California; Brian

Hawkinson, Liebert Cassidy Whitmore, San Francisco,

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.

HAMPTON V. STATE OF CALIFORNIA 5

OPINION

FRIEDLAND, Circuit Judge:

Early in the COVID-19 pandemic, the California

Institution for Men (“CIM”) suffered a severe COVID-19

outbreak. In an attempt to protect CIM inmates, high-level

officials in the California prison system transferred 122

inmates from CIM 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 infected over

two-thousand inmates and ultimately killed over twenty-five

inmates and one prison guard.

The wife of one of the deceased inmates sued, claiming

that the prison officials had violated her husband’s

constitutional and statutory rights. The officials moved to

dismiss, asserting that the claims were barred by various

federal and state immunities, including immunity under the

Public Readiness and Emergency Preparedness Act and

qualified immunity. The district court held that the officials

were not entitled to immunity at this stage of the

proceedings, and the officials filed this interlocutory appeal.

We affirm the district court’s conclusion that the officials are

not entitled to immunity under federal law for the claimed

violations of her husband’s rights,1 and we lack jurisdiction

to consider whether the officials are entitled to immunity

under state law.

1

Plaintiff also asserted a due process claim for violation of her own right

to familial association with Hampton. In a memorandum disposition

accompanying this opinion, we reverse the district court’s decision to

deny qualified immunity on that claim.

6 HAMPTON V. STATE OF CALIFORNIA

I.

We recently considered an appeal arising out of virtually

identical allegations, but in a case alleging a violation of the

deceased prison guard’s due process rights. See Polanco v.

Diaz, 76 F.4th 918 (9th Cir. 2023). We redescribe the

allegations here, taking all of them as true at this stage of the

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

2012).

A.

On March 4, 2020, California Governor Gavin Newsom

proclaimed a state of emergency due to COVID-19. 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

prisons, reasoning that transfers could “carr[y] [a] significant

risk of spreading transmission of the disease between

institutions.”

Defendants—a group of high-level officials at CIM, 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

on the dangers of COVID-19, the highly transmissible nature

of the disease, 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

HAMPTON V. STATE OF CALIFORNIA 7

weathering the storm with no known cases of COVID-19.

Other prisons were not so fortunate. 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” the COVID-capacity limits that

CDCR had established for inmate safety. Although some

inmates began experiencing symptoms while on the buses,

the buses did not turn back. And instead of quarantining the

inmates upon their arrival at San Quentin, Defendants placed

them in a housing unit with grated doors (allowing air to

flow in and out of the cells) and had them use the same

showers and eat in the same mess hall as other inmates.

Two days later, the Marin County Public Health Officer

learned of the transfer and scheduled an immediate

conference call with some Defendants. On the call, he

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.

Rather, they ordered that the Public Health Officer be

informed that he lacked the authority to mandate measures

in a state-run prison.

8 HAMPTON V. STATE OF CALIFORNIA

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 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 or inmates. Even when inmates and

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. The memo also warned

that quarantining inmates with COVID-19 in cells usually

used for punishment could backfire by making inmates

reluctant to report their symptoms.

Defendants were informed of the memo but did not adopt

its recommendations. For one, Defendants placed sick

inmates in solitary confinement, which discouraged inmates

from reporting their symptoms—just as the experts had

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. It

accordingly appointed a receiver tasked with establishing a

constitutionally adequate medical system.” Polanco, 76 F.4th at 924 n.2

(citation omitted); see Plata v. Schwarzenegger, No. C01-1351, 2005

WL 2932253, at *1 (N.D. Cal. Oct. 3, 2005).

HAMPTON V. STATE OF CALIFORNIA 9

warned would occur. Prison staff were not regularly tested

for COVID-19 or trained on COVID-19 safety protocols.

And when two research labs offered to provide COVID-19

testing at the prison, Defendants refused the offers, even

though one lab offered the testing for free.

The outbreak continued to spread. By July, more than

1,300 inmates had tested positive. In August, the infection

count exceeded 2,000―approximately two-thirds of the San

Quentin inmate population. By early September, twenty-six

inmates and one correctional officer had died of COVID-19.

B.

At the time of the transfer, Michael Hampton was a

sixty-two-year-old inmate at San Quentin. Hampton had

multiple health conditions, including obesity, hypertension,

and pre-diabetes, that put him at high risk of death if he were

to contract COVID-19. In early June, he started

experiencing symptoms consistent with COVID-19,

including a persistent cough. His condition worsened, and

he was transferred to the hospital in late June.

At the hospital, Hampton was diagnosed with “COVID-

19 pneumonia.” He was placed on a ventilator in early

August. In mid-September, he was moved to “comfort

care.” He died on September 25, 2020.

C.

Hampton’s wife (“Plaintiff”) initiated this lawsuit in the

United States District Court for the Northern District of

California, asserting an Eighth Amendment claim under 42

U.S.C. § 1983 as Hampton’s successor in interest, as well as

various federal and state statutory claims and a state law

negligence claim. Defendants moved to dismiss for failure

to state a claim, asserting that all of Plaintiff’s claims were

10 HAMPTON V. STATE OF CALIFORNIA

barred by Public Readiness and Emergency Preparedness

Act immunity. In the alternative, Defendants argued that

they were entitled to qualified immunity on Plaintiff’s

Eighth Amendment claim and that Plaintiff’s state law

claims were barred by various state law immunities. The

district court rejected all of Defendants’ claims to immunity.

Defendants timely appealed.

II.

“We review de novo a district court’s decision to deny a

motion to dismiss under Rule 12(b)(6).” Dunn v. Castro,

621 F.3d 1196, 1198 (9th Cir. 2010). 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.” Hernandez v. City of San Jose,

897 F.3d 1125, 1132 (9th Cir. 2018) (quoting Padilla v. Yoo,

678 F.3d 748, 757 (9th Cir. 2012)).

III.

Defendants assert that all of Plaintiff’s claims are barred

by the Public Readiness and Emergency Preparedness

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

immunity from federal and state law claims relating to the

administration of certain medical countermeasures during a

declared public health emergency.” Polanco v. Diaz, 76

F.4th 918, 932 (9th Cir. 2023) (quoting Cannon v.

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

2022)). Defendants argue that Plaintiff’s claims relate to the

administration of COVID-19 tests and that we should

therefore reverse the district court’s conclusion that the

PREP Act does not confer immunity.

HAMPTON V. STATE OF CALIFORNIA 11

A.

Before we can turn to the merits of Defendants’

argument, we must determine whether, under the collateral

order doctrine, we can consider an immediate appeal of the

denial of immunity under the PREP Act, or whether such an

appeal must await final judgment. “Federal circuit courts

have jurisdiction over appeals from ‘final decisions’ of

district courts.” SolarCity Corp. v. Salt River Project Agric.

Improvement & Power Dist., 859 F.3d 720, 723 (9th Cir.

2017) (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S.

100, 103 (2009)). “Although ‘final decisions’ typically are

ones that trigger the entry of judgment, they also include a

small set of prejudgment orders that are ‘collateral to’ the

merits of an action and ‘too important’ to be denied

immediate review.” Mohawk Indus., Inc., 558 U.S. at 103

(quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 546 (1949)). “That small category includes only

decisions” that (1) “are conclusive,” (2) “resolve important

questions separate from the merits,” and (3) “are effectively

unreviewable on appeal from the final judgment in the

underlying action.” Id. at 106 (quoting Swint v. Chambers

Cnty. Comm’n, 514 U.S. 35, 42 (1995)). Denials of Eleventh

Amendment immunity, absolute immunity, qualified

immunity, foreign sovereign immunity, and tribal sovereign

immunity all satisfy these criteria and thus are immediately

appealable. See SolarCity Corp., 859 F.3d at 725.

A denial of PREP Act immunity also satisfies the

collateral order doctrine’s requirements. First, denial of

PREP Act immunity is conclusive because the PREP Act

confers complete immunity from suit. See 42 U.S.C. § 247d-

6d(a)(1) (“[A] covered person shall be immune from suit and

liability[.]” (emphasis added)). An order denying PREP Act

immunity thus “purport[s] to be [a] conclusive

12 HAMPTON V. STATE OF CALIFORNIA

determination[]” that Defendants “have no right not to be

sued.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 145 (1993). Second, a denial of PREP

Act immunity resolves an important question separate from

the merits. Whether PREP Act immunity applies turns on

whether the claim for which immunity is asserted relates to

the defendant’s use of certain medical countermeasures, a

determination that “generally will have no bearing on the

merits of the underlying action.” Id. And we defer to

Congress’s judgment that such a determination is “too

important to be denied review.” Will v. Hallock, 546 U.S.

345, 349 (2006) (quoting Cohen, 337 U.S. at 546); see also

Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,

879 (1994) (“When a policy is embodied in a constitutional

or statutory provision entitling a party to immunity from suit

(a rare form of protection), there is little room for the

judiciary to gainsay its ‘importance.’”). Third and finally, as

an immunity from suit, the benefit of PREP Act immunity

“is effectively lost” if a party is erroneously required to “face

the . . . burdens of litigation.” Mitchell v. Forsyth, 472 U.S.

511, 526 (1985).

Because a denial of PREP Act immunity is an appealable

collateral order, we have jurisdiction to consider the merits

of Defendants’ argument that Plaintiff’s claims fall within

the Act’s scope.

B.

Defendants are not entitled to immunity under the PREP

Act on the face of the Complaint.

1.

“Congress passed the [PREP] Act in 2005 to encourage

during times of crisis the ‘development and deployment of

HAMPTON V. STATE OF CALIFORNIA 13

medical countermeasures’ (such as diagnostics, treatments,

and vaccines) by limiting legal liability relating to their

administration.” Polanco, 76 F.4th at 932 (quoting Cannon,

45 F.4th at 139). The statute offers “covered person[s]”

immunity “from suit and liability” for claims “caused by,

arising out of, relating to, or resulting from the

administration to or the use by an individual of a covered

countermeasure.” 42 U.S.C. § 247d-6d(a)(1). That

immunity “applies to any claim for loss that has a causal

relationship with the administration to or use by an

individual of a covered countermeasure.” § 247d-

6d(a)(2)(B).

The Act’s immunity lies dormant until the Secretary of

Health and Human Services “makes a determination that a

disease . . . constitutes a public health emergency” and

“make[s] a declaration, through publication in the Federal

Register,” that the Act’s immunity “is in effect.” § 247d-

6d(b)(1). On March 17, 2020, the Secretary did just that,

declaring that COVID-19 “constitutes a public health

emergency” and that “immunity as prescribed in the PREP

Act” was “in effect” for the “manufacture, testing,

development, distribution, administration, and use of”

covered countermeasures. Declaration Under the Public

Readiness and Emergency Preparedness Act for Medical

Countermeasures Against COVID-19, 85 Fed. Reg. 15198,

15201 (Mar. 17, 2020). The Secretary went on to define

“covered countermeasures” about as broadly as the Act

permits, encompassing “any antiviral, any other drug, any

biologic, any diagnostic, any other device, or any vaccine,

used to treat, diagnose, cure, prevent, or mitigate COVID-

19.” Id. at 15202; see § 247d-6d(i)(1).

14 HAMPTON V. STATE OF CALIFORNIA

2.

Plaintiff does not dispute that Defendants are “covered

person[s]” under the Act. And all agree that COVID tests

are “covered countermeasures.” Whether Defendants are

immune under the PREP Act thus turns on whether

Plaintiff’s claims are for loss “caused by, arising out of,

relating to, or resulting from the administration to or the use

by an individual of a covered countermeasure.” § 247d-

6d(a)(1).

Defendants first argue that Plaintiff’s claims meet that

standard because Plaintiff alleges that Hampton’s death was

caused (at least in part) by Defendants’ failure to administer

COVID tests to CIM inmates in the days prior to the

inmates’ transfer to San Quentin. But the PREP Act

provides immunity only from claims that relate to “the

administration to or the use by an individual of” a covered

countermeasure—not such a measure’s non-administration

or non-use. Id. This reading is reinforced by other sections

of the Act, which continually refer to that underlying

“administration” or “use” of a countermeasure. For

example, under the Act, immunity applies “only if” a few

conditions are met: The countermeasure must have been

“administered or used during the effective period of the

declaration,” and the use must have been “for the

category . . . of diseases . . . specified in the [Secretary’s]

declaration.” § 247d-6d(a)(3)(A), (B). Those conditions

cannot be satisfied if no countermeasure was administered

or used.

Defendants invoke an advisory opinion prepared by the

Department of Health and Human Services, which they

argue provides support for the position that the Act covers

claims arising out of a failure to administer a covered

HAMPTON V. STATE OF CALIFORNIA 15

countermeasure. See Dep’t of Health & Human Servs.,

Advisory Opinion 21-01 on the Public Readiness and

Emergency Preparedness Act Scope of Preemption

Provision (Jan. 8, 2021), https://perma.cc/5K3Y-A9JQ. But

the advisory opinion is irrelevant to this case. The advisory

opinion relies on the following hypothetical:

[C]onsider a situation where there is only one

dose of a COVID-19 vaccine, and a person in

a vulnerable population and a person in a less

vulnerable population both request it from a

healthcare professional. In that situation, the

healthcare professional administers the one

dose to the person who is more vulnerable to

COVID-19. In that circumstance, the failure

to administer the COVID-19 vaccine to the

person in a less-vulnerable population

“relat[es] to . . . the administration to” the

person in a vulnerable population.

Id. at 3 (footnote omitted) (second alteration in original).

This hypothetical illustrates the fact that, for a

countermeasure with limited availability, administering the

countermeasure to one person could mean withholding it

from another. But that is not what Plaintiff alleges happened

here. The Complaint nowhere suggests (and Defendants do

not argue) that tests were in short supply and that Defendants

saved the limited tests for others. Rather, the Complaint

suggests the opposite: Prior to the transfer, Defendants

rejected a lab’s offer to provide free COVID-19 testing at

San Quentin.

Defendants argue in the alternative that Plaintiff’s claims

do, in fact, “relate to” the use or administration of a covered

16 HAMPTON V. STATE OF CALIFORNIA

countermeasure—namely, the decision to test the transferred

inmates twice, once roughly three weeks prior to the transfer,

and again after the transfer. We cannot accept that argument

at the pleading stage either.

Although the PREP Act’s immunity encompasses claims

for loss “relating to” the administration of a countermeasure,

the Supreme Court has “singled out” the term “relate to” as

“particularly sensitive to context.” Dubin v. United States,

143 S. Ct. 1557, 1565-66 (2023). The Court has explained

that “[i]f ‘relate to’ were taken to extend to the furthest

stretch of its indeterminacy, then for all practical purposes

there would be no limits, as really, universally, relations stop

nowhere.” Id. at 1566 (cleaned up) (quoting N.Y. State Conf.

of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514

U.S. 645, 655 (1995)). “That the phrase refers to a

relationship or nexus of some kind is clear . . . . Yet the kind

of relationship required, its nature and strength, will be

informed by context.” Id.

Considered in its context in the PREP Act, “relating to”

takes on a more targeted meaning. See McDonnell v. United

States, 579 U.S. 550, 568-69 (2016) (“[A] word is known by

the company it keeps.” (quoting Jarecki v. G.D. Searle &

Co., 367 U.S. 303, 307 (1961))). The surrounding verbal

phrases—“caused by,” “arising out of,” and “resulting

from,” § 247d-6d(a)(1)—all connote some type of causal

relationship. At the very least, then, for PREP Act immunity

to apply, the underlying use or administration of a covered

countermeasure must have played some role in bringing

about or contributing to the plaintiff’s injury.3 It is not

3

Under the canon against surplusage, we do our best, “if possible, to give

effect to each word and clause in a statute.” United States v. Lopez, 998

HAMPTON V. STATE OF CALIFORNIA 17

enough that some countermeasure’s use could be described

as relating to the events underpinning the claim in some

broad sense.

As described in the Complaint, the testing that took place

did not play a role in bringing about or contributing to

Hampton’s death. Beginning with the testing that occurred

prior to the transfer, Plaintiff alleges that Defendants were

aware that the test results they had were so outdated as to be

essentially irrelevant. If Defendants were willing to transfer

inmates with such outdated results, it is plausible to infer that

the existence of those results did not contribute to the

decision to transfer the inmates—and, accordingly, did not

contribute to Hampton’s death. And by the time the

transferred inmates were tested upon their arrival at San

Quentin, the damage had been done. Plaintiff alleges that

when the post-transfer results came back, many of the

transferred inmates who tested positive had already been

housed in the same unit as the other transferred inmates and

had been using the same showers and mess hall as non-

transferred inmates for at least six days. Because the

allegations do not describe a causal relationship between the

F.3d 431, 440 (9th Cir. 2021). But that canon “assists only where a

competing interpretation gives effect to every clause and word of a

statute.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 385 (2013)

(quoting Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 106 (2011)).

No such competing interpretation could be adopted here; there is hardly

any daylight, for example, between the phrases “caused by” and

“resulting from.” § 247d-6d(a)(1). “In light of this redundancy, we are

not overly concerned” that interpreting “relates to” as requiring some

type of causal relationship “may be redundant as well.” Marx, 568 U.S.

at 385.

18 HAMPTON V. STATE OF CALIFORNIA

administration of either of the tests and Hampton’s death,

Plaintiff’s claims are not precluded by the PREP Act.4

IV.

We next consider whether Defendants are entitled to

qualified immunity on Plaintiff’s Eighth Amendment claim.5

We hold that they are not.

“The doctrine of qualified immunity shields officials

from civil liability so long as their conduct ‘does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Mullenix v. Luna,

577 U.S. 7, 11 (2015) (per curiam) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)). To be entitled to

qualified immunity at the motion to dismiss stage, an officer

must show that the allegations in the complaint do not make

out a violation of a constitutional right or that any such right

was not clearly established at the time of the alleged

misconduct. See Pearson, 555 U.S. at 232-36. “[D]ismissal

is not appropriate unless we can determine, based on the

complaint itself, that qualified immunity applies.” Polanco

4

Defendants suggest that we should consider the pre- and post-transfer

tests as a single plan when deciding whether Plaintiff’s claims fall within

the scope of the PREP Act. But even if evaluating the testing collectively

could somehow help Defendants, the Complaint does not clarify when

the decision to test post transfer was made. From the face of the

Complaint, we therefore cannot infer that Defendants intended from the

start to test the inmates once before the transfer and once after—they

may have instead decided to administer post-transfer tests only once staff

noticed that some inmates exhibited symptoms consistent with COVID-

19.

5

As noted above, 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. See Ashcroft v. Iqbal, 556 U.S. 662, 671-72

(2009).

HAMPTON V. STATE OF CALIFORNIA 19

v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023) (quoting O’Brien

v. Welty, 818 F.3d 920, 936 (9th Cir. 2016)).

A.

We first hold that Plaintiff has alleged a violation of

Hampton’s Eighth Amendment rights.

The Eighth Amendment’s prohibition against “cruel and

unusual punishments” imposes duties on prison officials to

provide “humane conditions of confinement.” Farmer v.

Brennan, 511 U.S. 825, 832 (1994).6 This duty stems from

the relationship between the State and those in its custody.

As the Supreme Court has explained:

[W]hen the State takes a person into its

custody and holds him there against his will,

the Constitution imposes upon it a

corresponding duty to assume some

responsibility for his safety and general well

being. . . . The rationale for this principle is

simple enough: when the State by the

affirmative exercise of its power so restrains

an individual’s liberty that it renders him

unable to care for himself, and at the same

time fails to provide for his basic human

needs—e.g., food, clothing, shelter, medical

care, and reasonable safety—it transgresses

6

The cruel-and-unusual-punishments clause is incorporated against the

states by the Due Process Clause of the Fourteenth Amendment. See

McDonald v. City of Chicago, 561 U.S. 742, 764 n.12 (2010) (citing

Robinson v. California, 370 U.S. 660, 666 (1962)).

20 HAMPTON V. STATE OF CALIFORNIA

the substantive limits on state action set by

the Eighth Amendment.

Helling v. McKinney, 509 U.S. 25, 32 (1993) (alterations in

original) (quoting DeShaney v. Winnebago Cnty. Dep’t of

Soc. Servs., 489 U.S. 189, 199-200 (1989)). Under the

Eighth Amendment, then, “prison officials must ensure that

inmates receive adequate food, clothing, shelter, and medical

care, and must ‘take reasonable measures to guarantee the

safety of the inmates.’” Farmer, 511 U.S. at 832 (quoting

Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). The

Amendment’s protections extend to “condition[s] of

confinement that [are] sure or very likely to cause serious

illness and needless suffering” in the future. Helling, 509

U.S. at 33. For instance, the Supreme Court has held that

involuntarily exposing an inmate to secondhand tobacco

smoke by requiring him to bunk with a cellmate who smokes

continuously can form the basis of an Eighth Amendment

claim. See id. at 35. So too can exposing inmates to

“infectious maladies” such as hepatitis. See id. at 33 (citing

Hutto v. Finney, 437 U.S. 678, 682 (1978)).

In such circumstances, it is a “prison official’s

‘deliberate indifference’ to a substantial risk of serious harm

to an inmate” that violates the Eighth Amendment. Farmer,

511 U.S. at 828. This type of Eighth Amendment claim has

an objective component and a subjective component. An

inmate must allege that the deprivation was, objectively,

“sufficiently serious.” Id. at 834 (quoting Wilson v. Seiter,

501 U.S. 294, 298 (1991)). The inmate must also allege that

the defendant official acted, subjectively, with “deliberate

indifference” to inmate health or safety. Id. (quoting Wilson,

501 U.S. at 302-03).

HAMPTON V. STATE OF CALIFORNIA 21

1.

The objective component of this claim requires a

plaintiff to plausibly allege that it is “contrary to current

standards of decency for anyone to be . . . exposed against

his will” to the relevant hazard. Helling, 509 U.S. at 35. In

other words, the resulting risk must not be one that “society

chooses to tolerate.” Id. at 36.

In Hines v. Youseff, 914 F.3d 1218 (9th Cir. 2019), we

rejected an Eighth Amendment claim based on a risk that we

held society had chosen to tolerate: Valley Fever. Id. at

1231. We noted that millions of people were voluntarily

living and working in the Central Valley of California, even

though doing so put them at a heightened risk of contracting

Valley Fever from the presence of certain fungal spores

there. Id. We also noted that there was “no evidence in the

record that ‘society’s attitude had evolved to the point that

involuntary exposure’” to Valley Fever “violated current

standards of decency.” Id. at 1232 (quoting Helling, 509

U.S. at 29).

The differences between society’s responses to Valley

Fever and to COVID-19 in the relevant time periods are

plain. The Complaint describes the drastic steps that state

and local governments took to prevent anyone from being

involuntarily exposed to COVID-19, including shelter-in-

place orders and mask mandates whose violations were

punishable as misdemeanors. It also alleges that Marin

County (where San Quentin is located) explained that the

purpose of its shelter-in-place order was “to slow virus

transmission as much as possible.” Plaintiff has thus

sufficiently alleged that a “societal consensus” had emerged

by May 2020 that the risk of contracting COVID-19 was

22 HAMPTON V. STATE OF CALIFORNIA

“intolerably grave” such that involuntarily exposing inmates

to the disease violated then-current standards of decency. Id.

2.

The subjective component of this Eighth Amendment

claim requires a plaintiff to allege that officials “kn[ew] of

and disregard[ed] an excessive risk to inmate health or

safety.” Farmer, 511 U.S. at 837. That is, the officials must

have been “aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists” and must

have actually “draw[n] the inference.” Id. Even so, “an

Eighth Amendment claimant need not show that a prison

official acted or failed to act believing that harm actually

would befall an inmate; it is enough that the official acted or

failed to act despite his knowledge of a substantial risk of

serious harm.” Id. at 842.

In Polanco, we considered whether many of the same

officials who are defendants here were deliberately

indifferent toward the health and safety of a San Quentin

employee. See 76 F.4th at 927-29. We held that the

allegations in Polanco described 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.” Id.

at 929.7

Polanco controls here. Plaintiff’s allegations regarding

Defendants’ mental states mirror nearly word-for-word the

7

Polanco involved a claim under the state-created-danger doctrine,

which is rooted in the Fourteenth Amendment. See 76 F.4th at 925-26.

Such a claim requires the plaintiff to allege that the defendants acted with

subjective deliberate indifference, see id. at 928 & n.7—the same mental

state required here.

HAMPTON V. STATE OF CALIFORNIA 23

allegations in Polanco. And although we recognize two

differences between this case and Polanco, neither changes

our conclusion that the allegations describe deliberate

indifference.

The first difference is about whose safety Defendants

allegedly disregarded: Here, it is a San Quentin inmate,

whereas in Polanco it was a San Quentin employee. This

difference is immaterial. The fact that Defendants “did not

take precautions to avoid transferring COVID-positive

inmates to San Quentin or to decrease the likelihood that

COVID-19 would spread” once the inmates arrived, id. at

928, shows a conscious disregard to the health and safety of

San Quentin employees and inmates alike.

The second difference is that, although the complaints in

both cases allege that prison officials failed to provide masks

and other personal protective equipment to prison inmates

and staff, only the Polanco complaint additionally alleges

that masks and protective equipment were “easily

obtainable.” Id. at 929. The absence of that allegation here

does not undermine Plaintiff’s claim of deliberate

indifference. If masks and personal protective equipment

were not available, Defendants would have understood that

it was particularly important to avoid transferring COVID-

positive inmates to San Quentin, where the architecture

would make difficult isolating inmates to prevent COVID’s

spread. The absence of masks also would have made even

clearer the importance of properly testing and screening

inmates prior to any transfer. On the other hand, if masks

and protective equipment were available, the choice not to

use them would reflect disregard for prisoner safety.

Accordingly, whether masks were available or not, Plaintiff

has plausibly alleged that Defendants acted with knowing

disregard for the health and safety of San Quentin inmates.

24 HAMPTON V. STATE OF CALIFORNIA

Defendants contend that we should nonetheless conclude

that they were not deliberately indifferent because a report

prepared by California’s Office of the Inspector General

(“OIG Report” or “Report”) shows that they took reasonable

steps to mitigate the risks from the transfer. See Farmer, 511

U.S. at 845 (“[P]rison officials who act reasonably cannot be

found liable under the Cruel and Unusual Punishments

Clause.”); Office of the Inspector General, COVID-19

Review Series Part 3 (Feb. 2021) [hereinafter OIG Report],

https://perma.cc/5W6G-27N3. We disagree.8

The OIG Report was prepared at the request of the

California Assembly and analyzes the “decision to transfer

medically vulnerable incarcerated persons” from CIM to San

Quentin. OIG Report at i. Although Defendants argue that

the Report supports their position that they were not

deliberately indifferent, the Report in fact strengthens

Plaintiff’s case.

The Report’s description of the transfer is very similar to

the allegations in the Complaint. See id. at 1-5. But the

Report contains additional details that bolster Plaintiff’s

assertion that prison executives9 were aware of, yet

8

Defendants argue that the OIG Report was incorporated into the

Complaint by reference. Plaintiff does not object to our consideration of

the Report. Because we hold that Plaintiff prevails whether or not we

consider the Report, we need not decide whether it was incorporated into

the Complaint by reference.

9

The OIG Report does not refer to prison executives by name, instead

using generic titles such as “California Institution for Men Medical

Executive” and “[California Correctional Health Care Services]

Director.” OIG Report at 2. We therefore cannot be sure that the

executives referenced in the Report are among the named Defendants.

Still, the Report bolsters Plaintiff’s claim by showing that at least some

prison executives were aware of the risks associated with the transfer.

HAMPTON V. STATE OF CALIFORNIA 25

consciously disregarded, the risks associated with the

transfer. For instance, as documented in the Report, a CIM

employee emailed a CDCR Manager three days before the

transfer expressing concerns about the speed with which the

transfer was taking place: “It’s difficult to get things right

when there is a rush. We have a lot to consider with this

whole COVID issue. I’m surprised HQ wants to move our

inmates right now. But we have to make sure we are not

infecting another institution.” Id. at 19. The email went on

to draw from an experience in which CIM had moved 120

inmates from one part of the prison to another, noting that

“many of those guys came up positive two weeks later,”

“contaminat[ing]” a new section of the prison. Id. And in

response to the decision to place inmates on buses in

numbers exceeding CDCR’s COVID-capacity limits, a

supervising nurse asked a prison executive: “What about

Patient safety? What about COVID precautions?” Id. at 20.

Other emails documented in the OIG Report demonstrate

that prison staff were aware that soon-to-be-transferred

inmates’ test results were dangerously out of date. Just days

before the transfer, a supervising nurse at CIM emailed a

CIM medical executive alerting the executive to the fact that

some of the inmates set to be transferred had not been tested

for COVID-19 for nearly a month. The nurse asked if the

inmates would be “re-swabb[ed]” before the transfer. Id. at

21. Eleven minutes later, the medical executive responded

with an email that said only: “No reswab[b]ing.” Id.

Another nurse emailed an executive cautioning that “the risk

of transferring patients tested almost one month ago is high

for poss[ible] covid spread” and that they should “slow down

a little and do it right.” Id.

Such details in the OIG Report reinforce Plaintiff’s

allegations by showing how prison executives brushed away

26 HAMPTON V. STATE OF CALIFORNIA

repeated warnings that they were proceeding in an unsafe

manner. Whether or not we consider the Report, Plaintiff

has adequately alleged that Defendants acted with deliberate

indifference toward the health and safety of San Quentin

inmates, including Hampton.

B.

The Eighth Amendment right at issue here was also

“clearly established at the time of the violation.” Stewart v.

Aranas, 32 F.4th 1192, 1195 (9th Cir. 2022).

For the unlawfulness of an officer’s conduct to be

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

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

reasonable official would understand that what he is doing is

unlawful.” District of Columbia v. Wesby, 138 S. Ct. 577,

589 (2018) (quotation marks omitted). The Supreme Court

has emphasized that determining whether the law was

clearly established “must be undertaken in light of the

specific context of the case, not as a broad general

proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001),

abrogated on other grounds by Pearson v. Callahan, 555

U.S. 223 (2009). For this reason, “it is not sufficient that

Farmer clearly states the general rule that prison officials

cannot deliberately disregard a substantial risk of serious

harm to an inmate.” Est. of Ford v. Ramirez-Palmer, 301

F.3d 1043, 1050-51 (9th Cir. 2002). To be clearly

established, the relevant right must have been defined more

narrowly.

Still, applying this doctrine here, Plaintiff is not required

to point to a prior case holding that prison officials can

violate the Eighth Amendment by transferring inmates from

one prison to another during a global pandemic. Binding

caselaw “need not catalogue every way in which” prison

HAMPTON V. STATE OF CALIFORNIA 27

conditions can be constitutionally inadequate “for us to

conclude that a reasonable official would understand that his

actions violated” an inmate’s rights. Castro v. County of Los

Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016) (en banc).

Rather, “a right is clearly established when the ‘contours of

the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.’”

Id. (alteration in original) (quoting Serrano v. Francis, 345

F.3d 1071, 1077 (9th Cir. 2003)).

Castro serves as a useful guide for articulating the right

at issue here at the proper level of generality. There, an

inmate asserted an Eighth Amendment claim after being

severely beaten by his cellmate. Sitting en banc, we

described the “contours” of the relevant Eighth Amendment

right in that case as the inmate’s “right to be free from

violence at the hands of other inmates.” Id. Articulated at

that same level of generality, the right at issue here is an

inmate’s right to be free from exposure to a serious disease.

That right has been clearly established since at least 1993,

when the Supreme Court decided Helling v. McKinney, 509

U.S. 25 (1993).

In Helling, an inmate alleged that he was assigned a

cellmate who smoked five packs of cigarettes a day,

exposing the inmate to dangerous chemicals and the risk of

future health problems. Id. at 28. The Supreme Court held

that the inmate had stated an Eighth Amendment claim by

alleging that prison officials had, “with deliberate

indifference, exposed [the inmate] to levels of” secondhand

tobacco smoke “that pose[d] an unreasonable risk of serious

damage to his future health.” Id. at 35. In reaching that

holding, the Court analogized to other fact patterns that it

treated as obvious violations of the Eighth Amendment.

“[A] prison inmate also could successfully complain about

28 HAMPTON V. STATE OF CALIFORNIA

demonstrably unsafe drinking water without waiting for an

attack of dysentery,” the Court reasoned. Id. at 33. So too

would it be an Eighth Amendment violation for “prison

officials [to be] deliberately indifferent to the exposure of

inmates to a serious, communicable disease.” Id.10 Helling

sent a clear message to prison officials: The Eighth

Amendment requires them to reasonably protect inmates

from exposure to serious diseases.

Our circuit’s precedent reinforces the conclusion that

this right was clearly established in the spring of 2020, when

the events at issue here occurred. In Hoptowit v. Spellman,

753 F.2d 779 (9th Cir. 1985), we held that a “lack of

adequate ventilation and air flow undermin[ing] the health

of inmates and the sanitation of” a prison violated the Eighth

Amendment. Id. at 784; see also Keenan v. Hall, 83 F.3d

1083, 1090 (9th Cir. 1996) (citing Hoptowit for the principle

that “[i]nadequate ‘ventilation and air flow’ violates the

Eighth Amendment if it ‘undermines the health of inmates

and the sanitation of the penitentiary’”). In Wallis v.

Baldwin, 70 F.3d 1074 (9th Cir. 1995), we held that an

inmate stated an Eighth Amendment claim after being

assigned prison work that exposed him to asbestos without

being provided sufficient protective gear. Id. at 1077. And

in Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014), we held

that a prison’s failure to “provide prisoners with . . .

protection from infectious diseases” (among other

10

Helling also cited with approval a Fifth Circuit decision that had

recognized an Eighth Amendment violation based in part on the fact that

a prison permitted “inmates with serious contagious diseases . . . to

mingle with the general prison population.” Gates v. Collier, 501 F.2d

1291, 1300 (5th Cir. 1974); see Helling, 509 U.S. at 34 (citing Gates).

HAMPTON V. STATE OF CALIFORNIA 29

deficiencies) was “firmly established in our constitutional

law.” Id. at 664, 676 (citing Helling, 509 U.S. at 33).

In light of these cases, all reasonable prison officials

would have been on notice in 2020 that they could be held

liable for exposing inmates to a serious disease, including a

serious communicable disease. Although “COVID-19 may

have been unprecedented, . . . the legal theory that Plaintiff[]

assert[s] is not.” Polanco, 76 F.4th at 931.

C.

Defendants advance two further arguments in support of

their position that they are entitled to qualified immunity at

this stage of the proceedings, neither of which is persuasive.

1.

Defendants first argue that they faced an impossible

choice: keep high-risk CIM inmates at a prison experiencing

an active COVID-19 outbreak or transfer the inmates out of

that prison. Either way, they argue, they would have placed

some set of inmates in danger and risked liability for doing

so. Defendants contend that it would be inconsistent with

the spirit of the qualified immunity doctrine to deny them

immunity in a situation in which they had no good options.

Defendants’ argument fails because it rests on a premise

contrary to the Complaint’s allegations. Plaintiff does not

challenge Defendants’ decision to transfer inmates out of

CIM. Rather, Plaintiff challenges decisions that Defendants

made in carrying out the transfer that increased the risk to

San Quentin inmates without decreasing the risk to the

transferred inmates. Those decisions include:

(1) transferring inmates to San Quentin, as opposed to a

prison with architecture more conducive to quarantining a

large group of inmates; (2) transferring inmates without

30 HAMPTON V. STATE OF CALIFORNIA

proper testing or screening; (3) exceeding CDCR’s COVID-

capacity limits on the buses; and (4) failing to enact post-

transfer safety protocols such as mandatory masking. In

other words, as alleged, a good option did exist; the

Complaint suggests that, had Defendants tried, they could

have moved the CIM inmates without exposing other

inmates to an unreasonable risk. See Polanco, 76 F.4th at

929.

2.

Defendants next contend that they were just following

orders: The court-appointed Receiver’s involvement in the

decisions surrounding the transfer, they say, absolves them

of any responsibility for the transfer’s consequences.

For this argument, Defendants rely on the OIG Report.11

But that Report does not show that the Receiver was

responsible for the relevant decisions. The OIG Report does

suggest that the Receiver was involved in some relevant

decision-making. See OIG Report at 9 (noting that “[t]he

decision to transfer incarcerated persons between prisons

was driven by a collaboration between executives from

[California Correctional Health Care Services] and from

[CDCR],” and thereby implying that the Receiver—who

oversees California Correctional Health Care Services—

likely played some role); id. at 30 (reproducing emails that

suggest that prison officials felt pressure from the Receiver

to move quickly to protect high-risk CIM inmates). But the

11

Defendants also point to testimony that the Receiver gave before the

California State Senate, which they argue was incorporated into the

Complaint by reference. Because Defendants’ assertion of immunity

would fail with or without consideration of that testimony, see Polanco,

76 F.4th at 931-32, we need not decide whether the testimony was

incorporated into the Complaint by reference.

HAMPTON V. STATE OF CALIFORNIA 31

Report does not indicate that the Receiver was involved in—

let alone that he directed or approved—the decision to

transfer the inmates to San Quentin as opposed to

somewhere else. Nor does the Report suggest that the

Receiver was aware of the outdated test results, the decision

to house the transferred inmates in open-air cells, or the other

post-transfer decisions that allegedly contributed to the

outbreak at San Quentin.

In discovery, the parties will have the opportunity to

explore the scope of the Receiver’s involvement in the

transfer. If discovery reveals that Defendants were

complying with orders from the Receiver in all relevant

actions underlying Plaintiff’s claims, then Defendants may

be entitled to qualified immunity. See Hines, 914 F.3d at

1231 (holding that “state officials could have reasonably

believed that their actions were constitutional so long as they

complied with the orders” from a federal receiver and

overseeing court). But at this early stage in the proceedings,

we cannot reach that conclusion.

V.

Finally, Defendants argue that the district court should

have dismissed Plaintiff’s state law claims because

Defendants are entitled to certain immunities under

California law. Once again, we must first determine whether

we can consider this argument immediately under the

collateral order doctrine, or whether it must await an appeal

from a final judgment.

“For claims of immunity under state law, ‘the

availability of an [interlocutory] appeal depends on whether,

under state law, the immunity functions as an immunity from

suit or only as a defense to liability.’” Tuuamalemalo v.

Greene, 946 F.3d 471, 476 (9th Cir. 2019) (quoting Liberal

32 HAMPTON V. STATE OF CALIFORNIA

v. Estrada, 632 F.3d 1064, 1074 (9th Cir. 2011)). Although

the former may be immediately appealable, the latter is not.

See id.

Defendants argue that Plaintiff’s state law claims are

barred by six immunities under California law.12 Four of the

immunities apply to government employees and are codified

in the Government Claims Act. See Cal. Gov. Code §§ 810-

998.3. The other two apply to correctional and emergency-

service professionals and are codified in the California

Emergency Services Act. See Cal. Gov. Code §§ 8550-

8669.7. We previously held that one of the immunities in the

Government Claims Act, Cal. Gov. Code § 820.2, was an

immunity from suit. See Liberal, 632 F.3d at 1076.

A recent decision by the California Supreme Court

makes us revisit that holding. In Quigley v. Garden Valley

Fire Protection District, 7 Cal. 5th 798 (2019), the

California Supreme Court considered a question similar to

the one we now confront: whether an immunity provision in

the Government Claims Act “serves as a limitation on the

fundamental jurisdiction of the courts” or rather “operates as

an affirmative defense to liability.” Id. at 802-03. To answer

that question, the court recounted the history of California

immunity doctrine. “At common law,” the court explained,

“the doctrine of sovereign immunity had two strands: a

procedural immunity from suit without the government’s

consent and a substantive immunity from liability for the

conduct of government.” Id. at 811. The procedural

immunity from suit was largely eliminated by the legislature

in 1885. See id. But, the court explained, the substantive

immunity—immunity from liability—lived on in the state’s

common law. Id. at 811-12. In the 1960s, California

12

See Cal. Gov. Code §§ 820.2, 820.8, 845.2, 855.4, 8658, 8659.

HAMPTON V. STATE OF CALIFORNIA 33

abolished that common law immunity in favor of a statutory

approach that eventually became the Government Claims

Act. Id. at 803, 812. Reasoning from history, the California

Supreme Court concluded that the Government Claims Act’s

immunity provisions were “addressed to questions of

substantive liability.” Id. at 813. The analysis in Quigley

dictates that the Government Claims Act immunities on

which Defendants rely are defenses to liability, not

immunities from suit.13 Our prior holding that section 820.2

is an immunity from suit has thus been “undercut” by “an

intervening decision from a state court of last resort . . . ‘in

such a way that the cases are clearly irreconcilable,’” making

that holding effectively overruled by the California Supreme

Court. Scafidi v. Las Vegas Metro. Police Dep’t, 966 F.3d

960, 963 (9th Cir. 2020) (quoting Miller v. Gammie, 335

F.3d 889, 900 (9th Cir. 2003) (en banc)).14

13

That conclusion is supported by the statutes themselves, which provide

that public employees are not “liable” for some class of injuries. See Cal.

Gov. Code § 820.2 (“[A] public employee is not liable for an injury

resulting from his act or omission where the act or omission was the

result of the exercise of the discretion vested in him.”); § 820.8 (“[A]

public employee is not liable for an injury caused by the act or omission

of another person.”); § 845.2 (“[N]either a public entity nor a public

employee is liable for failure to provide a prison, jail or penal or

correctional facility . . . sufficient equipment, personnel or facilities.”);

§ 855.4 (“Neither a public entity nor a public employee is liable for an

injury resulting from the decision to perform or not to perform any act to

promote the public health of the community by preventing disease.”).

14

Both parties note that, prior to its decision in Quigley, the California

Supreme Court once referred to the immunity conferred by section 820.2

as “immunity from suit.” Caldwell v. Montoya, 10 Cal. 4th 972, 976

(1996) (“[Section 820.2] generally affords a public employee personal

immunity from suit when the act or omission for which recovery is sought

34 HAMPTON V. STATE OF CALIFORNIA

The immunities defined in the California Emergency

Services Act function the same way as those in the

Government Claims Act. Those provisions are also phrased

as immunities from liability, just as the Government Claims

Act immunities are.15 It would be odd for California to

assign similarly worded immunities different effects, and we

see no reason to interpret the statutes as doing so.

Because the state law immunities on which Defendants

rely here are immunities from liability, not from suit,

Defendants cannot invoke the collateral order doctrine to

immediately appeal the district court’s rejection of those

state law defenses. See Tuuamalemalo, 946 F.3d at 476. We

thus lack jurisdiction to review that part of Defendants’

appeal.

resulted from ‘the exercise of the discretion vested in him.’” (emphasis

added) (quoting Cal. Gov. Code § 820.2)). But Caldwell concerned only

“a narrow” issue about the scope of section 820.2, not whether the

provision serves as an immunity from suit or from liability. See id. at

975-76. And elsewhere in the opinion, the court described the

immunities in the Government Claims Act as immunities “from

liability.” See id. at 980 (“[The Government Claims Act] establishes the

basic rules that public entities are immune from liability except as

provided by statute.” (emphasis omitted)). We therefore think that

Caldwell’s passing reference to section 820.2 as an “immunity from suit”

was merely imprecise wording in a case where the court had no reason

to distinguish between an immunity from suit and a defense to liability.

15

Compare Cal. Gov. Code § 8658 (“Such person shall not be held

liable, civilly or criminally, for acts performed pursuant to this section.”),

and § 8659(a) (“Any physician or surgeon . . . who renders services

during . . . a state of emergency . . . at the express or implied request of

any responsible state or local official or agency shall have no liability for

any injury sustained by any person by reason of those services.”), with

supra note 13.

HAMPTON V. STATE OF CALIFORNIA 35

VI.

For the foregoing reasons, we AFFIRM in part,

REVERSE in part,16 and DISMISS in part.

16

See supra note 1.