Ablordeppey v. Walsh

United States Court of Appeals

For the First Circuit

No. 22-1833

KWESI ABLORDEPPEY,

Plaintiff, Appellant,

v.

BENNETT WALSH; DAVID CLINTON; VANESSA LAUZIERE; VANESSA

GOSSELIN; CELESTE SURREIRA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Barron, Chief Judge,

Howard and Gelpí, Circuit Judges.

Leonard H. Kesten, with whom Erica L. Brody, Deidre Brennan

Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief,

for appellant.

Diana Day Foskett, with whom Barry M. Ryan, Erin J. Meehan,

and Doherty, Wallace, Pillsbury and Murphy, P.C. were on brief,

for appellee Bennett Walsh.

Jeffrey J. Pyle, with whom John F.X. Lawler and Prince Lobel

Tye LLP were on brief, for appellee David Clinton.

Jared L. Olanoff was on brief for appellee Vanessa Lauziere.

Joseph B. Hernandez, with whom Douglas S. Brooks and Libby

Hoopes Brooks & Mulvey, P.C. were on brief, for appellee Vanessa

Gosselin.

Kevin C. Giordano, with whom Keyes and Donnellan, P.C. was on

brief, for appellee Celeste Surreira.

October 25, 2023

GELPÍ, Circuit Judge. In early 2020, the unprecedented

SARS-CoV-2 virus ("COVID-19" or "virus") caused global disruption.

Soldiers' Home,1 a state-funded healthcare facility that houses

our nation's veterans in Holyoke, Massachusetts, faced the rapidly

evolving nature of the widespread outbreak. Kwesi Ablordeppey

("Appellant") was a certified nursing assistant at Soldiers' Home

at the time. Despite not contracting the virus, Appellant sued

Soldiers' Home's supervisors -- Bennett Walsh, the Superintendent;

David Clinton, the Medical Director; Vanessa Lauziere, the Chief

Nursing Officer; Vanessa Gosselin, the Infectious Disease Nurse;

and Celeste Surreira, the Assistant Director of Nursing

(collectively, "Appellees") -- alleging violations of his

constitutional substantive due process rights to a safe work

environment, to be free from a state-created danger, and to bodily

integrity.2 The district court dismissed the case. We affirm.

1Soldiers' Home is a state-funded health care facility that

offers residential accommodations, hospice care, and outpatient

services to our nation's veterans. It is managed by a Board of

Trustees appointed by the Massachusetts Governor. The Board of

Trustees assigns a Superintendent who then appoints a Medical

Director and other employees as necessary.

2Appellant originally pleaded only that his right to a safe

work environment had been violated. However, he subsequently

raised the latter two claims in his opposition to Appellees' motion

to dismiss.

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I. Background

Because this appeal arises from a dismissal for failure

to state a claim, "we accept as true all well-pleaded facts alleged

in the complaint and draw all reasonable inferences therefrom in

the pleader's favor." Douglas v. Hirshon, 63 F.4th 49, 52 (1st

Cir. 2023) (quoting Roe v. Lynch, 997 F.3d 80, 82 (1st Cir. 2021)).

Facts

On February 1, 2020, a day after the United States

Department of Health and Human Services declared a national public

health emergency due to COVID-19, Massachusetts state officials

confirmed the first COVID-19 case in the state. Throughout

February, both the federal and Massachusetts governments

promulgated directives to protect citizens from the unprecedented

virus, including that institutions, such as Soldiers' Home, must

identify patients with COVID-19 and isolate them from others.

By mid-February, the first resident ("Veteran One") at

Soldiers' Home, who had a history of pneumonia and respiratory

illness, exhibited COVID-19 symptoms. Despite the ongoing

symptoms, Veteran One freely roamed the common areas of his unit.

He was not tested for COVID-19 until, on March 16, 2020, a nurse

reported −− for the second time -- to Assistant Director of

Nursing Celeste Surreira ("Surreira") that Veteran One's symptoms

were worsening. Surreira challenged the assessment but ultimately

spoke with Veteran One's physician. After Veteran One tested

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positive for COVID-19, Chief Nursing Officer Vanessa Lauziere

("Lauziere") asked Medical Director David Clinton ("Clinton")

whether Veteran One should be moved to an isolation unit. However,

Clinton responded that it was a "moot point" because "everyone

ha[d] been exposed already" within the unit, so moving Veteran One

elsewhere would put other residents at risk. No restriction was

placed on Veteran One's movement, and staff in his area lacked

personal protective equipment ("PPE"). On March 24, 2020, Veteran

One passed away.

On March 4, 2020, Infectious Disease Nurse Vanessa

Gosselin ("Gosselin") sent an email to Soldiers' Home's staff

indicating that there was not enough PPE and instructing them to

use gloves on an "as needed" basis. Gosselin also notified the

staff that she had removed masks from the public areas to conserve

resources and prevent pilfering. Employees who wanted a mask had

to ask their unit supervisor.

On March 6, 2020, the Massachusetts Department of

Veterans' Affairs advised Bennett Walsh ("Walsh"), Soldiers'

Home's Superintendent, to limit staff movement, assess veterans'

symptoms daily, develop an isolation plan for suspected cases, and

encourage social distancing. This directive was ignored.

On March 10, 2020, Massachusetts Governor Charlie Baker

declared a State of Emergency. That same day, Soldiers' Home's

Board of Trustees met with Appellees to discuss the precautionary

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measures taken in the face of the pandemic, including possible

staffing shortages. Walsh reassured the Board of Trustees that,

if needed, he would call staffing agencies that he had previously

used for support. After that meeting, Walsh, Clinton, Lauziere,

and Gosselin met to discuss the creation of isolation rooms for

COVID-19 infected residents. Lauziere rejected the idea of

designating staff to care for patients in isolation rooms. The

next day, the first Soldiers' Home employee tested positive for

COVID-19. Shortly thereafter, Massachusetts Secretary of

Veterans' Affairs, Francisco Urena ("Urena"), emailed Walsh

directing him to keep employees home if they were feeling ill.

By then, numerous other employees had contracted

COVID−19. Walsh, over a loudspeaker, thanked staff who "showed up

to work every day" and threatened that those who called in sick

"[would] be penalized and [that] there [would] be disciplinary

action." On March 17, 2020, Walsh informed staff via email that

the executive team was keeping a "watchful eye" on PPE supplies.

As a result, Lauziere and Gosselin informed staff that Soldiers'

Home would not be distributing any more PPE because they were

"running out," even though Soldiers' Home had a surplus of PPE at

the time.

That same day, Appellant, a certified nursing assistant,

reported to work. Because a nurse informed him that some veterans

were experiencing COVID−19 symptoms, Appellant wore PPE to care

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for those patients. Gosselin reprimanded Appellant for his failure

to maintain appropriate social distancing from the sick veterans.

Three days later, Lauziere issued Appellant a formal written

reprimand for caring for incontinent patients while wearing PPE

and requested to meet with him the following Monday,

March 23, 2020. Lauziere did not attend the meeting.

By late March, Walsh, Clinton, Lauziere, and Gosselin

participated in various conference calls with staff unions and

employees from the Executive Office of Health and Human Services

to discuss the lack of health and safety protocols at Soldiers'

Home and the risk of contracting the virus faced by employees and

veterans. On March 25, 2020, Walsh, Clinton, Lauziere, and

Surreira participated in a conference call with two Massachusetts

Department of Public Health epidemiologists to discuss staffing

issues and COVID−19 protocols. Appellees concealed the fact that

they lacked adequate staffing for isolation areas and did not

address their plan to combine two dementia wards in order to

mitigate staffing shortages.

On March 28, 2020, Holyoke Mayor Alex Morse ("Mayor

Morse") received an anonymous email from a Soldiers' Home employee

describing the deplorable conditions at the facility and reporting

eight deaths. Subsequently, Urena confronted Walsh about said

deaths, asking him why he previously only reported two deaths, and

scheduled a call for the next day. During the call, Urena asked

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Walsh if employees floated between infected and noninfected units.

Later on, Mayor Morse called Walsh to discuss his concerns about

Soldiers' Home. That same day, Urena and Walsh spoke again. Walsh

discouraged Urena from speaking directly with Mayor Morse.

However, later that day, Urena, Walsh, Mayor Morse, and others

participated in a conference call wherein Mayor Morse explained

that Walsh previously told him that there had been eight deaths at

Soldiers' Home. After Urena confronted Walsh about the deaths,

Walsh was removed from his position at Soldiers' Home.

Procedural Background

Appellant filed this action pursuant to 42 U.S.C. § 1983

in the District of Massachusetts, alleging that Appellees violated

his substantive due process rights by failing to protect him from

harm, to provide a safe working environment, and to provide

adequate medical and nursing equipment. The complaint is bereft

of any allegation that Appellant contracted COVID-19 at Soldiers'

Home. Appellees moved to dismiss for failure to state a claim and

asserted that, in any event, qualified immunity barred the suit.

Relying on Collins v. City of Harker Heights, 503 U.S.

115, 126 (1992), the district court agreed with Appellees. In

doing so, it held that there was no viable § 1983 substantive due

process claim given that there was no constitutional duty to

provide Appellant with a safe work environment. Next, the district

court held that Appellant had not made viable substantive due

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process claims under the state-created danger or bodily integrity

doctrines. The district court further held that, even assuming

that Appellant had established viable substantive due process

claims, Appellees were nonetheless entitled to qualified immunity

given the lack of clearly established law at the time of the

events. Accordingly, the district court dismissed the suit.

Appellant timely sought review.

II. Discussion

We review de novo a district court's dismissal for

failure to state a claim under Rule 12(b)(6), taking as true all

well-pleaded factual allegations in the complaint and drawing all

reasonable inferences therefrom in Appellant's favor. Douglas, 63

F.4th at 54-55. "The complaint 'must contain sufficient factual

matter, accepted as true, to state a claim to relief that is

plausible on its face.'" Id. at 55 (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)) (cleaned up). We need not decide whether

Appellant properly put forth both state-created danger and bodily

integrity claims in his complaint because, even assuming both

claims were properly advanced, Appellees are entitled to qualified

immunity.

Under the doctrine of qualified immunity, government

officials are immune 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." Est. of

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Rahim by Rahim v. Doe, 51 F.4th 402, 410 (1st Cir. 2022) (quoting

City of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (per curiam))

(cleaned up). "It protects 'all but the plainly incompetent or

those who knowingly violate the law.'" Id. (quoting District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). To assess whether

a government official is entitled to qualified immunity, courts

ask "(1) whether the defendant violated the plaintiff's

constitutional rights and (2) whether the right at issue was

'clearly established' at the time of the alleged violation." Id.

An official may be entitled to qualified immunity "based on either

prong." Id. The second prong has two aspects: "(1) the relative

clarity of the governing law to a reasonable official on the date

of the alleged wrong and (2) whether the specific characteristics

of the situation confronted by the official would have made it

clear to a reasonable official how the governing law applied in

the given situation." Lawless v. Town of Freetown, 63 F.4th 61,

67 (1st Cir. 2023).

Because we may address either prong of the qualified

immunity analysis first, we begin (and finish) by assessing the

second prong, starting with the clarity of the governing law. See

Punsky v. City of Portland, 54 F.4th 62, 66 (1st Cir. 2022); see

also Penate v. Hanchett, 944 F.3d 358, 366 (1st Cir. 2019) ("Courts

need not engage in the first inquiry and may choose, in their

discretion, to go directly to the second.").

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When defining "clearly established law," the Supreme

Court has instructed courts that "[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 Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

Although Appellant is not required to identify a case that is

"directly on point," he does need to identify controlling precedent

or a consensus among persuasive authority that "place[s] the

statutory or constitutional question beyond debate." Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 580

U.S. 73, 79 (2017)); see also Est. of Rahim by Rahim, 51 F.4th at

413. Here, as troublesome as the factual allegations are,

Appellant has failed to point to any case law clearly establishing

applicable law that guarantees him the precise constitutional

protections he claims, and we have found none.3

In support of his claim that Appellees violated his

substantive due process rights, Appellant advances three possible

theories: (1) a right to a safe working environment; (2) the

state−created danger doctrine; and (3) the bodily integrity

doctrine. The first of these, standing alone, is a

non−starter −− the Supreme Court has held that "[n]either the text

Appellant indeed states in his brief that "[t]here is scant

3

case law on the issue of a state-created danger in the context of

COVID-19."

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nor the history of the Due Process Clause supports [the] claim

that the governmental employer's duty to provide its employees

with a safe working environment is a substantive component of the

Due Process Clause." Collins, 503 U.S. at 126. By contrast, each

of Appellant's alternate two theories are doctrines that we have

previously recognized, but they have only arisen in contexts far

afield from the claims presented in this case.

The state−created danger doctrine was conceived of as an

exception to the general rule that a state's failure to prevent

harm by a private actor does not constitute a constitutional

violation. See DeShaney v. Winnebago Cty. Dep't of Soc. Servs.,

489 U.S. 189 (1989). In DeShaney, the Supreme Court held that

there was no constitutional violation where a child suffered abuse

by his father but the child was not in state custody and the state

"played no part in the[] creation" of the danger. Id. at 201. We

and other circuits have since held that a state actor can be held

liable when that state actor did "play a part" in the creation of

a danger. See Irish v. Fowler, 979 F.3d 65, 73 (1st Cir. 2020)

(collecting cases).

In order to establish a state-created danger claim, the

plaintiff must show: "(1) that a state actor or state actors

affirmatively acted to create or enhance a danger to the plaintiff;

(2) that the act or acts created or enhanced a danger specific to

the plaintiff and distinct from the danger to the general public;

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(3) that the act or acts caused the plaintiff's harm; and (4) that

the state actor's conduct, when viewed in total, shocks the

conscience." Id. at 75. However, we have only contemplated the

doctrine in the context of harm perpetrated by private actors,

where law enforcement officers may have played a role in creating

or enhancing the harm by those private actors. See id. at 67-68

(applying the doctrine when police officers left a voicemail for

a rape suspect, after which he murdered the victim's boyfriend,

shot her mother, and kidnapped and raped the victim again); Welch

v. City of Biddeford Police Dep't, 12 F.4th 70, 72 (1st Cir. 2021)

(considering application of the doctrine where officers responded

to death threats by a landlord who later shot the tenants who had

reported the threats); Rivera v. Rhode Island, 402 F.3d 27, 30

(1st Cir. 2005) (considering application of the doctrine where a

witness was murdered the day before testifying in court and her

estate alleged police should have protected her). Our precedents

are thus worlds apart from the particular circumstances within

Soldiers' Home here. And to the extent Appellant directs our

attention to district−court and out−of−circuit cases holding that

the state−created danger doctrine may be extended to cover

"environmental" dangers, those cases fail to demonstrate that the

required consensus exists as to the type of claim presented here.

In a further attempt to reassure his theory that Collins

does not bar his claims, Appellant relies on Pauluk v. Savage, 836

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F.3d 1117 (9th Cir. 2016). In Pauluk, the Ninth Circuit recognized

that the state-created danger doctrine is an exception to the

general rule in Collins and thus allows for a claim to a safe

workplace. Id. at 1123-24. There, despite Pauluk's repeated

objections, his employer sent him to a facility that had been

infested with toxic mold. Id. at 1119. Throughout the years, the

exposure to mold adversely affected his health and he eventually

passed away. Id. at 1119-20. However, given the rapidly evolving

situation at Soldiers' Home in the face of a global pandemic,

Pauluk is not sufficiently analogous to the present case so as to

have clearly established that Appellees would be violating

Appellant's rights.

Appellant's alternative theory that Appellees violated

his right to bodily integrity fares no better under the qualified

immunity rubric. "Bodily integrity claims are based on the common

law 'right of every individual to the possession and control of

his own person, free from all restraint or interference of others,

unless by clear and unquestionable authority of law.'" Hootstein

v. Amherst-Pelham Reg'l Sch. Comm., 361 F. Supp. 3d 94, 111 (D.

Mass. 2019) (quoting Union Pac. Ry. Co. v. Botsford, 141 U.S. 250,

251 (1891)). Typical bodily integrity cases include forcibly

administrating medication or exposing individuals to experimental

treatments (such as nuclear-level radiation) without consent. See

Guertin v. Michigan, 912 F.3d 907, 919 (6th Cir. 2019). Based on

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Appellant's allegations in the complaint, we infer that his bodily

integrity claim is based on psychological trauma, given that he

does not claim to have been infected with COVID-19. However,

Appellant has failed to point us to cases in which a bodily

integrity claim has been sustained based on psychological harm

that was sustained from a voluntary employee's exposure to risk at

a medical facility. Thus, it was far from clearly established

that Appellees' actions here would violate Appellant's right to

bodily integrity.

Lastly, Appellant asks us to follow the Supreme Court's

lead in Taylor v. Riojas, 141 S. Ct. 52 (2020) (per curiam), and

find that prior caselaw is not necessary for his claims to survive

given that Appellees' conduct "so obviously violate[d] the

Constitution." In Taylor, an inmate in custody of the Texas

Department of Criminal Justice was kept in "deplorably unsanitary

conditions" for six days. Id. at 53. The Court held that the

Fifth Circuit erred in granting the correctional officers

qualified immunity given that none "could have concluded that,

under the extreme circumstances of this case, it was

constitutionally permissible to house Taylor in such deplorably

unsanitary conditions for such an extended period of time." Id.

Said circumstances obviated the need for clearly established law.

Id. at 53-54.

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Again, the facts in Taylor drastically differ from those

before us. First, the exigent circumstances of the rapidly

evolving yet unknown nature of COVID-19 called for immediate

action. Cf. id. at 53 ("The Fifth Circuit identified no evidence

that the conditions of [the] confinement were compelled by

necessity or exigency."). Second, Appellant here was a voluntary

employee, whereas Taylor involved an inmate in custody of the Texas

Department of Criminal Justice. See id. Appellees here, moreover,

acted in light of uncertain, developing, and constantly changing

circumstances.4

III. Conclusion

Accordingly, Appellant "has pointed to no precedent, and

we have found none, establishing that the [Appellees' COVID-19

response] violates clearly established law." Est. of Rahim by

Rahim, 51 F.4th at 418. Absent clearly established law, Appellees

could not know beforehand that their alleged mismanagement of the

COVID-19 outbreak at Soldiers' Home would violate Appellant's

rights. While hindsight is 20/20, "[u]nder these circumstances,

an objectively reasonable [government official] would not have

To the extent the Appellant argues that Appellees' conduct

4

was ministerial, not discretionary, and not protected by qualified

immunity, see Davis v. Scherer, 468 U.S. 183, 196 n.14 (1984), we

must reject this contention, for Appellant has failed to

demonstrate how the "directives" that Appellees are alleged to

have flouted did not leave Appellees a "substantial measure of

discretion," id.

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understood the challenged conduct to violate [Appellant's

rights]." Id. at 417. "It would be inhumane not to feel a sense

of outrage over [the situation], or a sense of deep sympathy for

[those who passed away]. But our question is one of federal law,

not one of sympathy." Rivera, 402 F.3d at 30. As such, Appellees

are entitled to qualified immunity.

For the above reasons, the district court's dismissal is

affirmed.5

5 The parties did not bring to our attention the Ninth

Circuit's opinion finding no qualified immunity based on a

state−created−danger theory in a case involving a claim by prison

guards who had contracted COVID-19 and were in charge of driving

inmates who had the virus to local hospitals. See Polanco v. Diaz,

76 F.4th 918 (9th Cir. 2023). But in finding the alleged violation

there to be a violation of clearly established law, the Ninth

Circuit relied solely on its own precedents, see id. at 930-31.

And, as we have explained, Appellant here has not identified any

precedent from the Supreme Court, this circuit, or other circuits

that would establish the requisite consensus to demonstrate

clearly established law as to the type of claims in this case.

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