Petition for Writ of Certiorari — Ralph Diaz, et al., Petitioners v. Patricia Polanco, et al.

No. ______

In the Supreme Court of the United States

————————

RALPH DIAZ, et al., Petitioners,

v.

PATRICIA POLANCO, et al., Respondents.

————————

RALPH DIAZ, et al., Petitioners,

v.

MICHAEL HAMPTON, et al., Respondents.

————————

RALPH DIAZ, et al., Petitioners,

v.

DONTE LEE HARRIS, et al., Respondents.

————————

RALPH DIAZ, et al., Petitioners,

v.

KENNETH ALLAN COOPER, et al., Respondents.

————————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

————————

PETITION FOR A WRIT OF CERTIORARI

————————

ROB BONTA

MICHAEL J. MONGAN

Attorney General of California

Solicitor General

MONICA ANDERSON

TERESA A. REED DIPPO*

CHRIS KNUDSEN

Deputy Solicitor General

Senior Assistant

CARA M. NEWLON

Attorneys General

Associate Deputy

JEFFREY T. FISHER

Solicitor General

FIEL D. TIGNO

Supervising Deputy

STATE OF CALIFORNIA

Attorneys General

DEPARTMENT OF JUSTICE

JOSHUA C. IRWIN

455 Golden Gate Avenue

HIMA RAVIPRAKASH

San Francisco, CA 94102-7004

CASSANDRA J. SHRYOCK

(415) 510-3896

Deputy Attorneys General

Teresa.ReedDippo@doj.ca.gov

*Counsel of Record

December 29, 2023

i

QUESTION PRESENTED

This Court has “repeatedly told courts—and the

Ninth Circuit in particular—not to define clearly

established law at a high level of generality” for purposes of the qualified immunity inquiry. Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (internal quotation marks omitted). “The dispositive

question is ‘whether the violative nature of particular

conduct is clearly established.’” Mullenix v. Luna, 577

U.S. 7, 12 (2015) (per curiam).

This petition concerns four recent appeals in which

the Ninth Circuit denied qualified immunity in suits

arising out of an outbreak of COVID-19 at a state

prison. See Sup. Ct. R. 12.4. In Polanco v. Diaz, the

panel majority held that prison officials violated a substantive due process right that was “clearly established” after pointing to “the combination of two of our

precedents”—neither of which involved any sort of

infectious disease. App. 17a. Two months later, the

Ninth Circuit denied qualified immunity in Hampton

v. California, this time holding that “the proper level

of generality” in assessing an inmate’s Eighth Amendment claim was “an inmate’s right to be free from exposure to a serious disease.” Id. at 101a-102a. A few

days later, the Ninth Circuit invoked the “clearly

established” right described in Hampton to deny qualified immunity with respect to nine additional prisoner lawsuits. Id. at 184a-185a. The question

presented is:

Whether the Ninth Circuit improperly denied qualified immunity to prison officials in these cases by defining the relevant law at a high level of generality and

failing to identify any precedent recognizing a constitutional violation on similar facts.

ii

PARTIES TO THE PROCEEDING

Petitioners were the defendants-appellants in

these four appeals in the Ninth Circuit.

In Diaz v. Polanco, petitioners are Ralph Diaz, former Secretary of the California Department of Corrections and Rehabilitation (CDCR); the Estate of Robert

S. Tharratt, who was the Medical Director of California Correctional Health Care Services (CCHCS);

Ronald Davis, the former warden of San Quentin

State Prison (San Quentin); Ronald Broomfield, the

former acting warden of San Quentin; Clarence Cryer,

the former Chief Executive Officer for Health Care at

San Quentin; Alison Pachynski, the Chief Medical

Officer at San Quentin; and Shannon Garrigan, the

Chief Physician and Surgeon at San Quentin.

In Diaz v. Hampton, petitioners are Ralph Diaz;

Ronald Davis; Ronald Broomfield; Clarence Cryer; Alison Pachynski; Shannon Garrigan; the Estate of Robert S. Tharratt; Louie Escobell, the Chief Executive

Officer for Health Care at the California Institution

for Men (CIM); Muhammad Farooq, the Chief Medical

Executive at CIM; Kirk A. Torres, the Chief Physician

and Surgeon at CIM; the State of California; San

Quentin; and CDCR.

In Diaz v. Harris, petitioners are Ralph Diaz;

Ronald Davis; Ronald Broomfield; Clarence Cryer; Alison Pachynski; Louie Escobell; Kathleen Allison, the

former Secretary of CDCR; Dean Borders, the former

warden at CIM; and Joseph Bick, the Director of

Health Care Services at CCHCS.

In Diaz v. Cooper, petitioners are Ralph Diaz;

Kathleen Allison; Ronald Davis; Ronald Broomfield;

Clarence Cryer; Alison Pachynski; Dean Borders; Joseph Bick; Louie Escobell; the Estate of Robert S.

iii

Tharratt; Shannon Garrigan; Muhammad Farooq;

Mona D. Houston; Kirk A. Torres; the State of California; CDCR; San Quentin; and CIM.

Respondents were plaintiffs-appellees in the court

of appeals in these cases. In Diaz v. Polanco, respondents are Patricia Polanco; Vincent Polanco; Selena Polanco; and Gilbert Polanco, deceased. In Diaz v.

Hampton, respondents are Jacqueline Hampton and

Michael Hampton, deceased. In Diaz v. Harris, the

respondent is Donte Lee Harris. In Diaz v. Cooper, the

respondents are Kenneth Allan Cooper; Matthew K.

Quale, Jr.; Karen Legg and Michelle Legg,

individually and as successors in interest to David

Reed, deceased; Tyrone Love; Joaquin Diaz, deceased;

Hilda Diaz; Yadira Menchu; Blanca Diaz Houle; Daniel Ruiz, deceased, by and through his co-successors in

interest; Santos Ruiz; Fernando Vera; Vanessa Robinson; Daniel Ruiz, Jr.; Angelina Chavez; Eric Warner,

deceased; Henry Warner; and Reginald Thorpe.

iv

RELATED PROCEEDINGS

U.S. Court of Appeals for the Ninth Circuit:

Polanco v. Diaz, No. 22-15496 (Nov. 16, 2023)

(affirming district court’s denial of motion to

dismiss on qualified immunity grounds)

Hampton v. California, No. 22-15481 (Oct. 3, 2023)

(affirming, in relevant part, district court’s

denial of motion to dismiss on qualified immunity grounds)

Harris v. Allison, No. 22-15921 (Oct. 13, 2023)

(affirming, in relevant part, district court’s

denial of motion to dismiss on qualified immunity grounds)

Cooper v. Allison, No. 22-16088 (Oct. 13, 2023)

(affirming, in relevant part, district court’s

denial of motions to dismiss on qualified immunity grounds)

U.S. District Court for the Northern District of California:

Polanco v. California, No. 3:21-cv-06516 (Mar. 3,

2022) (denying, in relevant part, motion to dismiss on qualified immunity grounds)

Hampton v. California, No. 3:21-cv-03058 (Mar. 20,

2022) (denying, in relevant part, motion to dismiss on qualified immunity grounds)

Harris v. Allison, No. 3:20-cv-09393 (May 18, 2022)

(denying, in relevant part, motion to dismiss on

qualified immunity grounds)

Cooper v. Allison, No. 3:22-mc-80066 (July 15,

2022) (denying, in relevant part, motions to dismiss on qualified immunity grounds in eight

cases)

v

TABLE OF CONTENTS

Page

Opinions below ............................................................ 1

Jurisdiction .................................................................. 2

Constitutional and statutory provisions involved……2

Introduction ................................................................. 2

Statement .................................................................... 4

A. Factual background ........................................ 4

B. Procedural background................................... 5

Reasons for granting the petition ............................. 10

I. The Ninth Circuit has repeatedly run afoul

of this court’s qualified immunity

precedent ............................................................. 12

A. Polanco denied qualified immunity

based on a purported due process

violation that is not clearly established....... 12

B. The Ninth Circuit has now repeatedly

applied Polanco’s erroneous approach

in the Eighth Amendment context............... 15

II. This petition presents a question of

exceptional importance ....................................... 19

Conclusion.................................................................. 22

Appendix A – Polanco court of appeals opinion

(Aug. 7, 2023) ................................. 1a

Appendix B – Polanco district court decision

(Mar. 3, 2022) ............................... 34a

Appendix C – Polanco court of appeals order

denying rehearing

(Nov. 16, 2023) .............................. 76a

Appendix D – Hampton court of appeals

opinion (Oct. 3, 2023) .................... 78a

vi

TABLE OF CONTENTS

(continued)

Page

Appendix E – Hampton court of appeals

memorandum (Oct. 3, 2023) ....... 111a

Appendix F – Hampton district court amended

decision (Mar. 20, 2022).............. 114a

Appendix G – Hampton district court order

denying reconsideration

(Mar. 20, 2022) ............................ 149a

Appendix H – Hampton district court decision

(Jan. 21, 2021)............................. 152a

Appendix I – Cooper and Harris memorandum

(Oct. 13, 2023) ............................. 181a

Appendix J – Cooper district court decision

(July 15, 2022) ........................... 187a

Appendix K – Harris district court decision

(May 18, 2022) ........................... 213a

Appendix L – Constitutional and statutory

provisions ................................... 237a

vii

TABLE OF AUTHORITIES

Page

CASES

Ablordeppey v. Walsh

85 F.4th 27 (1st Cir. 2023) ................................... 15

Anderson v. Creighton

483 U.S. 635 (1987) .................................... 2, 19, 20

Ashcroft v. al-Kidd

563 U.S. 731 (2011) ............................ 10, 12, 14, 20

Behrens v. Pelletier

516 U.S. 299 (1996) .............................................. 19

City and County of San Francisco v.

Sheehan

575 U.S. 600 (2015) ................... 2, 10-12, 16, 18, 21

City of Escondido v. Emmons

139 S. Ct. 500 (2019) ............................................ 11

Collins v. City of Harker Heights

503 U.S. 115 (1992) .............................................. 15

District of Columbia v. Wesby

583 U.S. 48 (2018) ............................................ 7, 10

Fraternal Order of Police Dep’t v.

Williams

375 F.3d 1141 (D.C. Cir. 2004) ............................ 15

Gates v. Collier

501 F.2d 1291 (5th Cir. 1974) .............................. 17

viii

TABLE OF AUTHORITIES

(continued)

Page

Helling v. McKinney

509 U.S. 25 (1993) ...................................... 8, 16, 17

Hines v. Youseff

914 F.3d 1218 (9th Cir. 2019) .............................. 17

Hoptowit v. Spellman

753 F.2d 779 (9th Cir. 1985) ................................ 17

Kaucher v. County of Bucks

455 F.3d 418 (3d Cir. 2006).................................. 15

Keenan v. Hall

83 F.3d 1083 (9th Cir. 1996) ................................ 17

Kisela v. Hughes

138 S. Ct. 1148 (2018) .................. 10, 11, 14, 16, 18

L.W. v. Grubbs

974 F.2d 119 (9th Cir. 1992) .......................... 13, 14

Martinez v. Gomez

137 F.3d 1124 (9th Cir. 1998) .............................. 21

Mullenix v. Luna

577 U.S. 7 (2015) ............................ 7, 10, 11, 14, 17

Parsons v. Ryan

754 F.3d 657 (9th Cir. 2014) ................................ 17

Pauluk v. Savage

836 F.3d 1117 (9th Cir. 2016) .................. 13, 14, 15

ix

TABLE OF AUTHORITIES

(continued)

Page

Pearson v. Callahan

555 U.S. 223 (2009) .............................................. 19

Rivas-Villegas v. Cortesluna

595 U.S. 1 (2021) .................................................. 11

Wallace v. Adkins

115 F.3d 427 (7th Cir. 1997) ................................ 15

Wallis v. Baldwin

70 F.3d 1074 (9th Cir. 1995) ................................ 17

White v. Pauly

580 U.S. 73 (2017) ...................... 2, 3, 10, 12, 18, 19

CONSTITUTIONAL PROVISIONS

United States Constitution

Eighth Amendment ............ 4, 7-9, 11, 15-18, 20, 21

Fourteenth Amendment......................................... 6

STATUTES

28 U.S.C. § 1254(1) ...................................................... 2

42 U.S.C. § 1983 ................................................ 6, 7, 11

COURT RULES

Supreme Court Rule 12.4 ............................................ 1

x

TABLE OF AUTHORITIES

(continued)

Page

OTHER AUTHORITIES

Mervosh & Fernandez, Months into

Virus Crisis, U.S. Cities Still Lack

Testing Capacity, N.Y. Times,

July 6, 2020 ............................................................ 4

Murphy, Surfaces? Sneezes? Sex? How

the Coronavirus Can and Cannot

Spread, N.Y. Times, May 26, 2020 ........................ 4

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully seek a writ of certiorari to

review the judgments of the United States Court of

Appeals for the Ninth Circuit in these four cases.

Petitioners are filing “a single petition for a writ of certiorari” because the “judgments . . . sought to be reviewed” are from “the same court and involve . . .

closely related questions.” Sup. Ct. R. 12.4.

OPINIONS BELOW

In Polanco v. Diaz, the opinion of the court of appeals (App. 1a-33a) is reported at 76 F.4th 918. The

opinion and order of the district court (App. 34a-75a)

is unreported but is available at 2022 WL 625076.

In Hampton v. California, the opinion of the court

of appeals addressing qualified immunity and certain

other issues (App. 78a-110a) is reported at 83 F.4th

754. A memorandum disposition resolving the remaining issues in that appeal (App. 111a-113a) is unreported but is available at 2023 WL 6443897. The

amended opinion and order of the district court (App.

114a-148a) is unreported but is available at 2022 WL

838122.

In Cooper v. Allison and Harris v. Allison, the

memorandum opinion of the court of appeals (App.

181a-186a) is not published in the Federal Reporter

but is available at 2023 WL 6784355. The opinion and

order of the district court in Cooper (App. 187a-212a)

is unreported but is available at 2022 WL 2789808.

The opinion and order of the district court in Harris

(App. 213a-236a) is unreported but is available at

2022 WL 2232525.

2

JURISDICTION

In Polanco, the judgment of the court of appeals

was entered on August 7, 2023, and the court denied a

timely petition for rehearing en banc on November 16,

2023. App. 1a, 76a. In Hampton, the judgment of the

court of appeals was entered on October 3, 2023. App.

78a. In Cooper and Harris, the judgment of the court

of appeals was entered on October 13, 2023. App.

183a. In each case, the jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Pertinent constitutional and statutory provisions

are set forth in the appendix to this petition. App.

237a-238a.

INTRODUCTION

Government officials are entitled to qualified immunity unless their conduct violated “clearly established” law that “placed the statutory or constitutional

question beyond debate.” White v. Pauly, 580 U.S. 73,

79 (2017) (per curiam) (internal quotation marks omitted). That “exacting standard” allows “government officials breathing room to make reasonable but

mistaken judgments.” City and County of San Francisco v. Sheehan, 575 U.S. 600, 611 (2015) (internal

quotation marks omitted). When lower courts disregard it, they impose “substantial social costs, including the risk that fear of personal monetary liability

and harassing litigation will unduly inhibit officials in

the discharge of their duties.” Anderson v. Creighton,

483 U.S. 635, 638 (1987). That is why this Court has

found it “necessary” to “issue[] a number of opinions

reversing federal courts in qualified immunity cases”

and “reiterat[ing] the longstanding principle that

3

‘clearly established law’ should not be defined ‘at a

high level of generality.’” White, 580 U.S. at 79.

The Ninth Circuit ignored that principle in each of

these appeals, and this Court should reverse those

mistaken judgments and once again reiterate the requirements of the qualified immunity doctrine. The

facts of these cases are undeniably tragic. In the early

months of the COVID-19 pandemic, when little was

known about the disease and testing supplies were

limited, the defendant officials attempted to protect

the lives of scores of vulnerable inmates who were confined in a prison where the virus was rampant. They

transferred those inmates to San Quentin State

Prison, which later experienced its own outbreak of

COVID-19. The plaintiffs in the 11 lawsuits directly

at issue here—and over 40 other lawsuits that have

been filed regarding that outbreak—now allege that

the defendants took inadequate precautions to minimize the risk of disease transmission in San Quentin

when they transferred those inmates.

As observed by the dissenting judge in the first of

these cases to reach decision in the Ninth Circuit,

“[h]indsight is 20/20, and we cannot view the clearly

established inquiry through the lens of what we know

or believe to be true now.” App. 26a (Nelson, J., dissenting). “COVID-19 presented prison officials with a

rapidly emerging and evolving challenge,” and the circumstances faced by the officials in this case were

“simply different in kind from” circumstances in prior

cases involving violations of the Constitution. Id. at

31a (Nelson, J., dissenting). At the time of the transfer, “[n]o 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

4

would [have understood] that what he is doing violates

that right.’” Id. at 32a-33a (Nelson, J., dissenting).

The Ninth Circuit majority nonetheless held that

the defendants violated a “clearly established” due

process right after “employing the high level of generality that the Supreme Court has chastised [that

circuit] for.” App. 27a (Nelson, J., dissenting). It then

compounded that error by holding—in three subsequent appeals—that the defendants had also violated

a “clearly established” Eighth Amendment right. Not

one of those decisions identified any precedent that

squarely governed the factual circumstances here.

The Ninth Circuit instead relied on general legal principles and cases with dissimilar facts—sometimes

piecing together isolated aspects of multiple decisions

in an effort to manufacture a “clearly established” legal rule. That approach sets a “dangerous” example

for other courts and litigants in the Nation’s largest

judicial circuit, id. at 32a (Nelson, J., dissenting)—in

the context of COVID-19 lawsuits and beyond. This

Court should either summarily reverse or grant plenary review.

STATEMENT

A. Factual Background

Little was known about how the virus that causes

COVID-19 could spread in early 2020, as outbreaks

began in the United States. See Murphy, Surfaces?

Sneezes? Sex? How the Coronavirus Can and Cannot

Spread, N.Y. Times, May 26, 2020. For several

months, government officials struggled to obtain adequate testing supplies and to effectively screen individuals for the virus. See Mervosh & Fernandez,

Months into Virus Crisis, U.S. Cities Still Lack Testing

Capacity, N.Y. Times, July 6, 2020. The lawsuits at

5

issue here arose from outbreaks of COVID-19 in state

prisons during those early months of the pandemic.

By May 2020, an outbreak at the California Institution for Men (CIM) had infected hundreds of inmates and killed nine. App. 3a-4a. To protect 122

inmates who had high-risk medical conditions, prison

officials moved them from CIM to San Quentin State

Prison, where there had not yet been any reported

cases of COVID-19. Id. at 4a. Prison officials took

steps to mitigate the risks from that transfer, including screening inmates for symptoms, checking temperatures, limiting the number of inmates on transfer

buses, isolating some symptomatic inmates, and testing potentially exposed inmates after transfer. Cooper

v. Allison, No. 22-16088, C.A. Dkt. 17-5 at 157-180.

According to the allegations in these lawsuits, however, the transferred inmates were not adequately

tested or screened for symptoms before transport and

they were not quarantined upon arrival. App. 4a.1

Shortly after the transfer, some of the inmates who

had been transferred to San Quentin tested positive

for COVID-19. App. 5a. In the following weeks the

virus spread. Id. Thousands of inmates at San

Quentin were ultimately infected with COVID-19;

twenty-six inmates and one correctional officer died.

Id. at 83a.

B. Procedural Background

As of December 2023, over 50 lawsuits have been

filed against prison officials connected with the 2020

1 Because each of these cases arises from the denial of qualified

immunity at the motion to dismiss stage, the court of appeals

assumed the truth of the allegations in the complaints. App. 3a

n.1, 80a.

6

San Quentin outbreak, each alleging constitutional violations under 42 U.S.C. § 1983 and seeking damages.

Eleven of those cases are directly at issue here.

1. Polanco v. Diaz. The first case to reach decision

in the Ninth Circuit was filed by the family of Sergeant Gilbert Polanco, the correctional officer who

died in August 2020. App. 1a-33a. The complaint asserts substantive due process claims under the Fourteenth Amendment against various prison officials

involved in the transfer decision and medical treatment of inmates at CIM and San Quentin. Id. at 6a.

It alleges that the defendants violated Polanco’s rights

by exposing him to the risk of contracting COVID-19.

Id. The district court denied defendants’ motion to dismiss that complaint on qualified immunity grounds in

relevant part (while granting the motion with respect

to defendants who worked at CIM). Id. at 35a. It held

that the complaint adequately alleged a violation of a

clearly established due process right on the part of

defendants who worked at San Quentin and the California Department of Corrections and Rehabilitation.

Id. at 66a.

A divided panel of the Ninth Circuit affirmed the

denial of qualified immunity in a published opinion.

App. 2a. The majority held that the complaint “sufficiently allege[d] a violation of Polanco’s due process

right to be free from a state-created danger,” based on

the theory that the defendants acted affirmatively and

with deliberate indifference to expose Polanco to a particularized danger at his workplace. Id. at 8a; see id.

at 8a-16a. After examining “the intersection of multiple cases,” id. at 17a n.8, the majority also concluded

that the alleged due process violation was “‘clearly established at the time of the violation.’” Id. at 16a-17a.

In particular, the majority held that “the combination

7

of two of our precedents”—neither of which involved

infectious disease—put defendants on notice that they

could be liable for “affirmatively exposing their employees to workplace conditions that they knew were

likely to cause serious illness.” Id. at 17a, 19a.

Judge Nelson dissented. App. 25a. His analysis

focused on this Court’s qualified immunity precedent,

which instructs that “[t]he standard for clearly established law is ‘demanding’ and ‘protects all but the

plainly incompetent or those who knowingly violate

the law.’” Id. at 26a (quoting District of Columbia v.

Wesby, 583 U.S. 48, 63 (2018) (internal quotation

marks omitted)). In his view, the panel majority’s reliance on weaving together two cases involving

dissimilar facts defied this Court’s warning that a constitutional right must be clearly established “in light

of the specific context of the case, not as a broad general proposition.” Id. at 32a; see Mullenix v. Luna, 577

U.S. 7, 12 (2015) (per curiam). He concluded that

“[b]ecause the law is not clearly established, . . . the

Defendants are entitled to qualified immunity.” Id. at

25a.

Petitioners filed a petition for rehearing en banc,

which the court of appeals denied. App. 77a.

2. Hampton v. California. The second case was

brought by the wife of Michael Hampton, a deceased

inmate. App. 79a. In relevant part, the complaint asserted an Eighth Amendment claim under 42 U.S.C.

§ 1983 and sought damages from the defendant officials. Id. at 84a. Similar to the complaint in Polanco,

the Hampton complaint alleged that prison officials

acted with deliberate indifference to a substantial risk

of serious harm by transferring inmates from CIM to

San Quentin without taking adequate precautions.

Id. at 95a-98a. The district court denied defendants’

8

motions to dismiss on qualified immunity grounds. Id.

at 114a-115a.

The court of appeals again issued a published opinion affirming the denial of immunity. App. 92a-106a.

As to whether the complaint adequately alleged an

Eighth Amendment violation, the court examined

whether the alleged deprivation “was, objectively, ‘sufficiently serious’” and whether the defendants subjectively acted “with ‘deliberate indifference’ to inmate

health or safety.” Id. at 95a. It concluded that the

objective test was satisfied because “involuntarily exposing inmates to [COVID-19] violated then-current

standards of decency.” Id. at 96a. And it held that its

recent decision in Polanco (the correctional-officer

case) “control[led]” the analysis as to the subjective

test, because Polanco held that similar factual allegations “described a ‘textbook case of deliberate indifference[.]’” Id. at 96a-97a.

Next, the court of appeals held that the Eighth

Amendment violation was clearly established. App.

103a (citing Polanco v. Diaz, 76 F.4th 918, 931 (9th

Cir. 2023)). It acknowledged that the plaintiff had not

identified any “prior case holding that prison officials

can violate the Eighth Amendment by transferring inmates from one prison to another during a global pandemic.” Id. at 101a. But it defined “the right at issue

here” at a higher “level of generality,” describing it as

“an inmate’s right to be free from exposure to a serious

disease.” Id. at 101a, 102a. Defined in that way, the

court asserted that the “right has been clearly established since at least 1993, when the Supreme Court

decided Helling v. McKinney, 509 U.S. 25, 33 (1993),”

which recognized an Eighth Amendment claim based

on an inmate’s exposure to “a cellmate who smoked

five packs of cigarettes a day.” App. 102a. The court

9

of appeals also discussed circuit precedents involving

inadequate ventilation and exposure to asbestos. Id.

at 103a.

3. Cooper v. Allison & Harris v. Allison. Within

days of its decision in Hampton, the court of appeals

reached the same result in Cooper and Harris. Those

appeals addressed nine lawsuits filed by inmates or

their families, alleging (in relevant part) Eighth

Amendment violations and seeking damages from the

state defendants. App. 183a, 184a. In each case, the

district court denied defendants’ motions to dismiss on

qualified immunity grounds, and the defendants appealed. Id. at 190a, 215a. The court of appeals affirmed, this time in a memorandum disposition. Id. at

183a. Relying exclusively on its decision in Hampton,

the court concluded that “each Complaint at issue here

states an Eighth Amendment claim that was clearly

established at the time of the underlying events.” Id.

at 184a.

The appeal in Cooper, which was also captioned “In

re: CIM SQ Transfer Cases,” arose from a single district court decision directly addressing eight cases, including one putative class action. App. 187a, 194a n.7.

Because numerous cases have been filed based on the

same facts, the Chief Judge of the Northern District of

California has assigned many of the cases to one judge

for the limited purpose of addressing common issues,

including the defendants’ qualified immunity defense.

Id. at 188a-189a. The district court decision denying

qualified immunity in Cooper has since been extended

to over 40 additional cases. E.g., Cooper v. Allison,

N.D. Cal. No. 3:22-mc-80066, Dkts. 91, 99, 114. Five

more appeals challenging orders in those cases are

currently before the Ninth Circuit and are stayed

pending resolution of this petition. See Nickerson v.

10

Allison, No. 22-16513; Lee v. Allison, No. 22-16884;

Crittenden v. Allison, No. 23-15132; Ulep v. California,

No. 23-15806; Mills v. Allison, No. 23-15945. A sixth

appeal was also recently filed. See Jackson v. Allison,

No. 23-4271.

REASONS FOR GRANTING THE PETITION

Government officials are entitled to qualified immunity “unless (1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their

conduct was ‘clearly established at the time.’” District

of Columbia v. Wesby, 583 U.S. 48, 62-63 (2018). For

conduct to violate a “clearly established” right, “existing precedent must have placed the statutory or constitutional question beyond debate.” White v. Pauly,

580 U.S. 73, 79 (2017) (per curiam). It is not sufficient

for a court to invoke “general statements of the law”

that are “inapplicable or too remote.” Kisela v. Hughes,

138 S. Ct. 1148, 1153 (2018) (per curiam). A right is

“clearly established” only where “the right’s contours

were sufficiently definite that any reasonable official

in the defendant’s shoes would have understood that

he was violating it.” Id.

“This Court has repeatedly told courts—and the

Ninth Circuit in particular—not to define clearly established law at a high level of generality.” Kisela, 138

S. Ct. at 1152 (internal quotation marks omitted); see

also City and County of San Francisco v. Sheehan, 575

U.S. 600, 613 (2015) (same); Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011) (same). “The dispositive question

is ‘whether the violative nature of particular conduct

is clearly established.’” Mullenix v. Luna, 577 U.S. 7,

12 (2015) (per curiam). “This inquiry must be undertaken in light of the specific context of the case, not as

a broad general proposition.” Id. (internal quotation

marks omitted).

11

The Ninth Circuit ignored those requirements in

the four appeals at issue in this petition. It began, in

Polanco, by describing a “clearly established” due process right based on a “mishmash” of “the most compelling attributes” of two prior circuit decisions from

markedly different factual contexts—which “cannot

have put the officers on notice that their conduct in

handling COVID-19 would be unconstitutional.” App.

29a, 31a (Nelson, J., dissenting). It followed a similar

approach in Hampton, invoking a broad legal principle

to hold that the defendants violated a “clearly established” Eighth Amendment right in their early efforts

to respond to a novel and evolving pandemic. Id. at

100a-103a. It then compounded that error when it applied Hampton as controlling authority in Harris and

Cooper. Id. at 184a. The broad principles relied on by

the Ninth Circuit below are “far too general . . . to control th[ese] case[s].” Sheehan, 575 U.S. at 613. And

the precedents cited by the court “are simply too factually distinct to speak clearly to the specific circumstances here.” Mullenix, 577 U.S. at 18.

Those repeated errors improperly expose government officials to the burdens of discovery and the possibility of substantial monetary damages. They also

reflect a “dangerous” trend with implications extending far beyond these four cases—not only for over 40

additional cases involving the same outbreak that are

pending in the lower courts, but also for future Section

1983 cases generally. App. 32a (Nelson, J., dissenting).

This Court has not hesitated to reverse prior Ninth

Circuit judgments that ignored the requirements of

the qualified immunity doctrine. See, e.g., RivasVillegas v. Cortesluna, 595 U.S. 1, 6 (2021) (per curiam)

(summary reversal); City of Escondido v. Emmons,

139 S. Ct. 500, 504 (2019) (per curiam) (summary reversal); Kisela, 138 S. Ct. at 1155 (summary reversal);

12

Sheehan, 575 U.S. at 617 (reversal following plenary

review); al-Kidd, 563 U.S. at 744 (reversal following

plenary review). It should do so here as well.

I. THE NINTH CIRCUIT HAS REPEATEDLY RUN

AFOUL OF THIS COURT’S QUALIFIED IMMUNITY

PRECEDENT

In each of these cases, the Ninth Circuit committed

the exact error that this Court has warned against: it

premised the denial of qualified immunity on “general

statements of the law,” without identifying any “case

where an officer acting under similar circumstances . . . was held to have violated the” Constitution.

White, 580 U.S. at 79-80. That approach “misunderstood the ‘clearly established’ analysis.” Id. at 79.

A. Polanco Denied Qualified Immunity

Based on a Purported Due Process Violation That Is Not Clearly Established

The majority in Polanco relied on the general principle that state officials could be liable “under the

state-created-danger doctrine” for “deliberate indifference to workplace conditions posing serious health

risks.” App. 18a. It cited prior Ninth Circuit cases

applying that principle. Id. at 16a-20a. But “[e]ven a

cursory glance at the facts” of those cases “confirms

just how different [they are] from this one.” Sheehan,

575 U.S. at 614. None of the cited cases gave the defendants “‘fair and clear warning’” (id. at 617) that

their actions in moving vulnerable inmates to protect

them from a novel contagious disease in the early days

of a global pandemic violated Polanco’s substantive

due process rights.

Because it could not identify any prior decision recognizing a due process claim based on exposure to infectious disease in a prison workplace, the Ninth

13

Circuit majority relied on “the combination of ” two

prior Ninth Circuit decisions. App. 17a. The first, L.W.

v. Grubbs, 974 F.2d 119 (9th Cir. 1992), involved facts

that “deeply contrast with those here.” App. 27a

(Nelson, J., dissenting). The plaintiff in Grubbs was a

prison nurse who was “assaulted, battered, kidnapped

and raped.” 974 F.2d at 120. The defendant prison

officials had told her that she would not be required to

work alone with violent sex offenders, but then they

assigned her to work alone with “a violent sex offender

who had failed all treatment programs at the institution” and was “considered very likely to commit a violent crime if placed alone with a female.” Id. The

defendants thus affirmatively exposed an employee to

a known risk of sexual violence and “enhanced [her]

vulnerability to attack by misrepresenting to her the

risks attending her work.” Id. at 121. Those facts “do[]

nothing to clearly establish the law for the constitutional standards” governing “an invisible, non-human,

and novel global virus wafting through the air.” App.

28a (Nelson, J., dissenting).

The second decision invoked by the majority,

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

not involve a prison workplace or an infectious disease.

The plaintiff was a state office-worker assigned to a

building with a known, pervasive, and chronic toxicmold problem. Id. at 1119. The defendants did not

respond to the plaintiff ’s protests and requests for

transfer over multiple years. Id. at 1119-1120. And

they “actively tried to conceal the amount of, and danger posed by, the mold.” Id. at 1125. Thus, the “statecreated danger in Pauluk was both open and notorious”: the defendants “fully understood the risks of

mold exposure and refused to remedy the problem or

permit Pauluk to remedy it himself by transferring

14

workplaces for years.” App. 29a (Nelson, J., dissenting).

The “differences between” Pauluk and Polanco

“leap from the page.” Kisela, 138 S. Ct. at 1154. The

COVID-19 risk encountered by Polanco was “rapidly

emerging and evolving,” “did not persist over a matter

of years,” and was never “raised” by Polanco in a

request for transfer or reassignment. App. 30a, 31a

(Nelson, J., dissenting).

Indeed, “[r]ather than

request transfer or reassignment, Polanco volunteered

to take on more shifts” during the pandemic. Id. at

30a-31a (Nelson, J., dissenting).

Despite the stark dissimilarity of the facts in

Grubbs and Pauluk to the facts in this case, the Ninth

Circuit majority selectively combined different aspects

of those decisions to identify the “clearly established”

law that petitioners are alleged to have violated. The

majority concluded that Grubbs and Pauluk collectively establish liability when an employee encounters

“danger in the course of carrying out employment duties in a correctional facility” and the danger arises

from factors including “work[ing] in close proximity”

to other people, “the physical conditions of the workplace,” and “breathing contaminated air.” App. 19a.

But that hodgepodge approach to the qualified immunity inquiry only underscores the fact that “none of

[the] precedents ‘squarely governs’ the facts here.”

Mullenix, 577 U.S. at 15. The majority “seems to have

cherry-picked the aspects of [prior] opinions” that conceivably relate to the unique factual circumstances in

this case. al-Kidd, 563 U.S. at 743.

Not only did Grubbs and Pauluk fail to give “fair

notice” that the conduct alleged here clearly violated

substantive due process, other authority shows that it

15

did not. This Court has explained that public employers have no general constitutional duty to “provide . . .

employees with a safe working environment.” Collins

v. City of Harker Heights, 503 U.S. 115, 126 (1992). To

rise to the level of a due process violation, statecreated workplace dangers must be “arbitrary, or conscience shocking, in a constitutional sense.” Id. at 128.

Circuit courts have repeatedly rejected due process

claims brought by prison employees who were exposed

to dangerous conditions in their workplace.2 And the

First Circuit recently held that Pauluk was “not sufficiently analogous” to a case involving a public employee’s exposure to COVID-19 in an institutional

setting “to have clearly established” a violation of that

employee’s due process rights. Ablordeppey v. Walsh,

85 F.4th 27, 34 (1st Cir. 2023) (distinguishing facts in

Pauluk from “the rapidly evolving situation at” statefunded healthcare facility “in the face of a global pandemic”).

B. The Ninth Circuit Has Now Repeatedly

Applied Polanco’s Erroneous Approach in

the Eighth Amendment Context

Within two months of its decision in Polanco, the

Ninth Circuit applied the same mistaken understanding of qualified immunity in Hampton, where it addressed an inmate’s Eighth Amendment claim

2 See Kaucher v. County of Bucks, 455 F.3d 418, 421, 428 (3d Cir.

2006) (prison officials did not violate due process by “creating unsanitary and dangerous conditions” that led to correctional officers contracting staph infections); Fraternal Order of Police Dep’t

v. Williams, 375 F.3d 1141, 1144-1147 (D.C. Cir. 2004) (prison

officials did not violate due process by creating dangerous conditions when they reduced number of guards while increasing number of inmates); Wallace v. Adkins, 115 F.3d 427, 427, 430 (7th

Cir. 1997) (prison officials did not violate due process by assigning guard to work near a “particularly violent inmate”).

16

supported by “virtually identical allegations.” App.

80a. After surveying Supreme Court and circuit precedent, the court “described the ‘contours’ of the relevant Eighth Amendment right” as “an inmate’s right

to be free from exposure to a serious disease.” Id. at

101a, 102a. Even if that were an accurate characterization of modern Eighth Amendment jurisprudence, it

“is far too general a proposition to control this case.”

Sheehan, 575 U.S. at 613. And once again, the Ninth

Circuit failed to identify any “existing precedent [that]

‘squarely governs’ the specific facts at issue” here and

would have provided the defendants with “fair notice

that [their] conduct was unlawful.” Kisela, 138 S. Ct.

at 1152, 1153.

In the Hampton court’s view, the right allegedly violated by defendants was “clearly established since at

least 1993, when the Supreme Court decided Helling

v. McKinney, 509 U.S. 25 (1993).” App. 102a. That

case held that an inmate’s Eighth Amendment claim

based on sustained exposure to a cellmate “who

smoked five packs of cigarettes a day” could be premised on the “risk of serious damage to his future health”

rather than an allegation of “current serious health

problems.” Helling, 509 U.S. at 28, 34, 35. In explaining that holding, the Court offered a hypothetical

aside, positing that it would not reject a claim that

prison officials were “deliberately indifferent to the exposure of inmates to a serious, communicable disease

on the ground that the complaining inmate shows no

serious current symptoms.” Id. at 33 (emphasis

added); see also id. (“[A] prison inmate also could

successfully complain about demonstrably unsafe

drinking water without waiting for an attack of dysentery.”). But the Court’s acknowledgment that there

may be some circumstances in which deliberate exposure to a communicable disease could violate the

17

Eighth Amendment hardly establishes (clearly or

otherwise) “the violative nature of [the] particular conduct” alleged here, concerning defendants’ attempts to

grapple with the evolving COVID-19 pandemic.

Mullenix, 577 U.S. at 12.3

Nor do any of the circuit cases invoked by the

Hampton panel establish that the conduct alleged

here clearly violates the Eighth Amendment. Two of

those cases involved general concerns about poor ventilation in prison facilities. See Keenan v. Hall, 83

F.3d 1083, 1090 (9th Cir. 1996); Hoptowit v. Spellman,

753 F.2d 779, 784 (9th Cir. 1985). The third affirmed

a class-certification order in a case presenting wideranging allegations of systemic Eighth Amendment violations. See Parsons v. Ryan, 754 F.3d 657, 662 (9th

Cir. 2014) (reviewing “numerous policies and practices

of statewide application governing medical care, dental care, mental health care, and conditions of confinement”). In the final case, an inmate was forced to

clean insulation containing asbestos from a prison attic for 45 hours. See Wallis v. Baldwin, 70 F.3d 1074,

1075 (9th Cir. 1995). By contrast, a more recent circuit decision sustained a qualified immunity defense

on facts more analogous to the present case. See Hines

v. Youseff, 914 F.3d 1218, 1223, 1229 (9th Cir. 2019)

(holding that any Eighth Amendment right of inmates

3 Helling also cited a Fifth Circuit decision, Gates v. Collier, 501

F.2d 1291 (5th Cir. 1974), holding that inmates suffered an

Eighth Amendment violation in a case where the defendant

prison officials “admitted” that their facility had “rampant” unsafe and “[u]nsanitary conditions.” Id. at 1300, 1303. As part of

a long inventory of those conditions, the Fifth Circuit mentioned

that “[s]ome inmates with serious contagious diseases are allowed to mingle with the general prison population.” Id. at 1300.

But that consideration was neither necessary to the holding nor

sufficient to support it.

18

“to be free from heightened exposure to Valley Fever,”

an airborne disease, “was not clearly established”).

It is perhaps telling that, when the court below

analyzed the threshold question of whether the complaint “has alleged a violation of Hampton’s Eighth

Amendment rights,” it identified Polanco as the “control[ling]” circuit authority on the subjective component of its analysis. App. 93a, 97a. Of course, Polanco

was decided long after the conduct alleged here. So

that decision “could not have given fair notice” to the

defendants named in Hampton’s complaint. Kisela,

138 S. Ct. at 1154; see id. (“[A] reasonable officer is not

required to foresee judicial decisions that do not yet

exist” at the time of his actions). If the relevant constitutional right at issue here was clearly established

in 1993 (as the panel asserted, see App. 102a), then the

panel’s near-exclusive reliance on Polanco for the subjective portion of its constitutional analysis would

have made little sense, see id. at 96a-100a.

And unlike all of the pre-Polanco cases relied on by

the panel below, Hampton involved a novel and highly

contagious disease, about which public health “guidance was uncertain, developing, and consistently

changing” at the time of the alleged conduct. App.

29a-30a. The Ninth Circuit denied qualified immunity without identifying any “case where an officer acting under similar circumstances . . . was held to have

violated the” Eighth Amendment. White, 580 U.S. at

79; see also App. 181a (affirming the denial of qualified

immunity in Cooper and Harris). “Qualified immunity

is no immunity at all if ‘clearly established’ law can

simply be defined” as a broad and absolute right—divorced from any context—to be free from exposure to

a serious disease. Sheehan, 575 U.S. at 613.

19

II. THIS PETITION PRESENTS A QUESTION OF EXCEPTIONAL IMPORTANCE

This Court has emphasized that “qualified immunity is important to ‘society as a whole.’” White, 580

U.S. at 79. As “an immunity from suit rather than a

mere defense to liability,” Pearson v. Callahan, 555

U.S. 223, 231 (2009), qualified immunity is intended

to spare government officials not only the obligation to

stand trial, but also “the burdens of ‘such pretrial matters as discovery,’” which “‘can be peculiarly disruptive

of effective government,’” Behrens v. Pelletier, 516 U.S.

299, 308 (1996) (emphasis omitted). When lower

courts improperly allow suits to proceed against government officials, it “can entail substantial social

costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.”

Anderson v. Creighton, 483 U.S. 635, 638 (1987).

With those considerations in mind, this Court

“‘repeatedly ha[s] stressed the importance of resolving

immunity questions at the earliest possible stage in

litigation.’” Pearson, 555 U.S. at 232. And when lower

courts ignore the requirements of this doctrine, the

Court has “found [it] necessary” to “issue[] a number

of opinions reversing federal courts in qualified immunity cases”—and to “reiterate the longstanding

principle that ‘clearly established law’ should not be

defined ‘at a high level of generality.’” White, 580 U.S.

at 79.

The decisions of the Ninth Circuit here warrant

similar treatment. By defining clearly established law

at a high level of generality in the context of the “due

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

App. 8a, the Polanco decision threatens to expand the

scope of liability in suits brought by public employees

20

advancing novel theories of exposure to injury, illness,

or other harm. That could chill the good-faith efforts

of government officials to manage crises and protect

individuals who are already in danger—due to a wellgrounded fear that taking any action might create

some risks to employees that could spawn litigation.

See, e.g., Anderson, 483 U.S. at 638. And the Ninth

Circuit’s broad conception in Hampton of what is

“clearly established” under the Eighth Amendment

will only compound that concern in the prison context.

More broadly, the court of appeals’ “rel[iance] on

the intersection of multiple cases” with dissimilar

facts to support its “clearly established” legal rule

(App. 17a n.8) provides a template for litigants and

courts to evade the requirements of qualified immunity—by “cherry-pick[ing]” certain aspects of prior

opinions in disparate cases, al-Kidd, 563 U.S. at 743.

The Polanco majority reserved the possibility that

defendants “may be entitled to qualified immunity at

a later stage of this litigation,” App. 20a n.9, but that

is “cold comfort,” id. at 30a n.2 (Nelson, J., dissenting).

It ignores the fact that “[t]he ‘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.’” Id.

(Nelson, J., dissenting).

The dissent below predicted that if the decision in

Polanco remained in place it would be “dangerous

to . . . future precedent” in the Ninth Circuit. App. 32a

(Nelson, J., dissenting). That prediction was borne out

within two months, when the Ninth Circuit relied on

Polanco to deny qualified immunity in Hampton based

on a purported Eighth Amendment right defined at a

similarly high level of generality. Id. at 92a-103a.

21

Days later, the Ninth Circuit invoked the “clearly established” Eighth Amendment right recognized in

Hampton to deny qualified immunity in nine additional prisoner lawsuits. Id. at 184a-185a.

Those rulings will have dramatic and immediate

practical consequences, given that the May 2020 inmate transfer allegedly infected over two thousand inmates. App. 83a. The outbreak has already led to over

50 lawsuits in total, and the Ninth Circuit’s recent

decisions may encourage the filing of additional complaints.4 Absent this Court’s intervention, the prison

officials in those cases will soon be subject to contentious discovery and other burdensome proceedings—

even though they never had a “‘fair and clear warning’” that their conduct at the outset of an unprecedented pandemic violated the Constitution. Sheehan,

575 U.S. at 617.

But the harmful consequences of these decisions

will not be limited to litigation about a particular outbreak of COVID-19. If the decisions in Polanco and

Hampton remain in place, they will exacerbate the

risk that courts in the Nation’s largest judicial circuit

will continue to circumvent this Court’s qualified immunity precedent by defining clearly established law

at a high level of generality. This Court has summarily reversed or granted plenary review with respect to

prior judgments of the Ninth Circuit that created similar dangers for future precedent, and the Court’s

intervention is warranted here as well.

4 Cf. Martinez v. Gomez, 137 F.3d 1124, 1124-1126 (9th Cir. 1998)

(per curiam) (recognizing statute of limitations as long as four

years for inmate civil rights claims).

22

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

MONICA ANDERSON

CHRIS KNUDSEN

Senior Assistant Attorneys General

TERESA A. REED DIPPO

Deputy Solicitor General

JEFFREY T. FISHER

FIEL D. TIGNO

Supervising Deputy Attorneys General

JOSHUA C. IRWIN

HIMA RAVIPRAKASH

CASSANDRA J. SHRYOCK

Deputy Attorneys General

CARA M. NEWLON

Associate Deputy Solicitor General

December 29, 2023