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

Supreme Court briefDec 29, 2023

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APPENDIX

TABLE OF CONTENTS

Page

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

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:

U.S. Const. amend. VIII ............................. 237a

U.S. Const. amend. XIV, § 1 ....................... 237a

42 U.S.C. § 1983.......................................... 237a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

___________

No. 22-15496

D.C. No. 3:21-cv-06516-CRB

PATRICIA POLANCO; VINCENT POLANCO;

SELENA POLANCO; GILBERT POLANCO,

Deceased,

Plaintiffs-Appellees,

RALPH DIAZ; ESTATE OF ROBERT S.

THARRATT; RONALD DAVIS, Warden; RONALD

BROOMFIELD; CLARENCE CRYER; ALISON

PACHYNSKI, MD; SHANNON GARRIGAN, MD,

Defendants-Appellants,

and

STATE OF CALIFORNIA; CALIFORNIA

DEPARTMENT OF CORRECTIONS AND

REHABILITATION; SAN QUENTIN STATE

PRISON; LOUIE ESCOBELL, RN; MUHAMMAD

FAROOQ, MD; KIRK A TORRES, MD,

Defendants.

___________

Appeal from the United States District Court for the

Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted March 8, 2023

San Francisco, California

Filed August 7, 2023

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

Circuit Judges, and Kathleen Cardone,* District

Judge.

Opinion by Judge Friedland;

Dissent by Judge R. Nelson

___________

OPINION

___________

FRIEDLAND, Circuit Judge:

A few months into the COVID-19 pandemic, highlevel officials in the California prison system

transferred 122 inmates from the California

Institution for Men, where there was a widespread

COVID-19 outbreak, to San Quentin State Prison,

where there were no known cases of the virus. The

transfer sparked an outbreak of COVID-19 at San

Quentin that ultimately killed one prison guard and

over twenty-five inmates.

The guard’s family

members sued the prison officials, claiming that the

officials violated the guard’s due process rights. The

officials moved to dismiss, arguing that they were

entitled to qualified immunity. The district court

denied the motion with respect to some of the officials,

who then filed this interlocutory appeal. We affirm.

* The Honorable Kathleen Cardone, United States District Judge

for the Western District of Texas, sitting by designation.

On March 4, 2020, California Governor Gavin

Newsom proclaimed a State of Emergency due to

COVID-19. 1 The declaration was quickly followed by

other emergency measures at the state and local

levels, including shelter-in-place orders and mask

mandates. Later that month, Governor Newsom

issued an executive order suspending the intake of

inmates into all state correctional facilities. Around

the same time, California Correctional Health Care

Services adopted a policy opposing the transfer of

inmates between prisons, reasoning that transfers

would “carr[y] [a] significant risk of spreading

transmission of the disease between institutions.”

Defendants—a group of high-level officials at San

Quentin and the California Department of Corrections

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

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

briefed about the dangers of COVID-19, the highly

transmissible nature of the virus, and the necessity of

taking precautions (such as social distancing, maskwearing, and testing) to prevent its spread.

Defendants were also aware that containing an

outbreak at San Quentin would be particularly

difficult due to its tight quarters, antiquated design,

and poor ventilation. As of late May 2020, though, San

Quentin appeared to be weathering the storm with no

known cases of COVID-19. Other prisons were not so

fortunate. The California Institution for Men (“CIM”)

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

dismiss stage, we accept as true all well-pleaded allegations in

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

2012).

suffered a severe outbreak, which by late May had

killed at least nine inmates and infected over six

hundred.

In an attempt to prevent further harm to CIM

inmates, on May 30, Defendants transferred 122 CIM

inmates with high-risk medical conditions to San

Quentin. The transfer did not go well. Most of the

men who were transferred had not been tested for

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

transferred inmates were properly screened for

symptoms before being “packed” onto buses to San

Quentin “in numbers far exceeding COVID-capacity

limits that CDCR had mandated for inmate safety.”

Although some inmates exhibited symptoms while on

the bus, Defendants did not quarantine the newly

arriving inmates.

They placed nearly all the

transferred inmates in a housing unit with grated

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

had them use the same showers and eat in the same

mess hall as other inmates.

Two days after the inmates arrived at San

Quentin, the Marin County Public Health Officer

learned of the transfer and scheduled an immediate

conference call with some Defendants. On the call, the

Public Health Officer recommended that the

transferred inmates be completely sequestered from

the original San Quentin population, that all exposed

inmates and staff be required to wear masks, and that

staff movement be restricted between different

housing units to prevent the spread of COVID-19.

Despite being timely informed of the Public Health

Officer’s recommendations, Defendants did not heed

his advice. Instead, they ordered that the Public

Health Officer be informed that he lacked the

authority to mandate measures in a state-run prison.

COVID-19 soon began to sweep through San

Quentin. Within days of the transfer, twenty-five of

the transferred inmates had tested positive. Over a

three-week period, San Quentin went from zero

confirmed cases of COVID-19 to nearly five hundred.

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

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

group of health experts investigate the outbreak at

San Quentin. The health experts wrote an “Urgent

Memo” warning that the COVID-19 outbreak at San

Quentin could escalate into a “full-blown local

epidemic and health care crisis in the prison and

surrounding communities” if not contained. The

memo criticized many practices at San Quentin,

noting, for instance, that personal protective

equipment and masks were not provided to staff and

inmates despite being readily available. Even when

staff had masks, many wore them improperly or failed

to wear them at all. The prison’s testing protocol, too,

was inadequate, suffering from what the memo

considered

“completely

unacceptable”

delays.

Defendants were informed of the memo but did not

adopt its recommendations.

Indeed, when two

research labs offered to provide COVID-19 testing at

the prison, Defendants refused the offers, even though

one offered to do so for free.

The outbreak continued to spread. By July, more

than 1,300 inmates and 184 staff had tested positive.

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

for the Northern District of California held in 2005 that the

medical services in California prisons failed to meet the

constitutional minimum. See Plata v. Schwarzenegger, No. C011351, 2005 WL 2932253, at *1 (N.D. Cal. Oct. 3, 2005). It

accordingly appointed a receiver tasked with establishing a

constitutionally adequate medical system. See id.

Two months later, those numbers had ballooned to

more than 2,100 inmates and 270 staff. As of early

September, approximately twenty-six inmates and

one guard had died of COVID-19.

That one guard was Sergeant Gilbert Polanco. At

the time of the transfer, Polanco was fifty-five years

old and had worked at San Quentin for more than two

decades. Polanco had multiple health conditions that

put him at high risk of mortality if he were to contract

COVID-19,

including obesity, diabetes,

and

hypertension. During the pandemic, one of his duties

was to drive sick inmates—including those with

COVID-19—to local hospitals.

On those trips,

Defendants refused to provide Polanco (or the inmates

he was driving) with personal protective equipment.

In late June, Polanco contracted COVID-19. By

July, his condition had worsened, and he was admitted

to the hospital. He died of complications caused by

COVID-19 in August.

Polanco’s wife and children (collectively,

“Plaintiffs”) sued Defendants under 42 U.S.C. § 1983

in the United States District Court for the Northern

District of California. Their Complaint alleges that

Defendants violated Polanco’s substantive due process

rights by affirmatively, and with deliberate

indifference, placing him in danger. It also alleges

that Defendants violated Plaintiffs’ substantive due

process rights to familial association. 3

3 The Complaint also alleges various statutory and common law

claims that are not at issue in this appeal.

Defendants moved to dismiss, arguing, among

other things, that they are entitled to qualified

immunity on Plaintiffs’ constitutional claims. The

district court rejected that argument, holding that

Defendants are not entitled to qualified immunity on

the face of the Complaint. 4 Defendants timely

appealed the district court’s denial of qualified

immunity.

II.

We have jurisdiction under the collateral order

doctrine to review a district court’s rejection of a

qualified immunity defense at the motion to dismiss

stage, Ashcroft v. Iqbal, 556 U.S. 662, 671–72 (2009),

and we review such a denial de novo, Hernandez v.

City of San Jose, 897 F.3d 1125, 1131–32 (9th Cir.

2018). When engaging in such review, we “accept[] as

true all well-pleaded allegations” and “construe[]

them in the light most favorable to the non-moving

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

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

III.

We must affirm the district court’s denial of

qualified immunity if, accepting all of Plaintiffs’

allegations as true, Defendants’ conduct “(1) violated

a constitutional right that (2) was clearly established

at the time of the violation.” Ballou v. McElvain, 29

F.4th 413, 421 (9th Cir. 2022). At the motion to

dismiss stage, “dismissal is not appropriate unless we

can determine, based on the complaint itself, that

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

4 Plaintiffs also asserted claims against some high-level officials

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

respect to those defendants. That aspect of the district court’s

order is not at issue in this appeal.

F.3d 920, 936 (9th Cir. 2016) (quoting Groten v.

California, 251 F.3d 844, 851 (9th Cir. 2001)). Based

on the Complaint here, we hold that Defendants are

not entitled to qualified immunity.

Plaintiffs sufficiently allege a violation of Polanco’s

due process right to be free from a state-created

danger.

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

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

property, without due process of law” confers both

procedural and substantive rights. DeShaney v.

Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,

194–95 (1989) (alterations in original) (quoting U.S.

Const. amend. XIV). The substantive component of

that clause “protects individual liberty against

‘certain government actions regardless of the fairness

of the procedures used to implement them.’” Collins

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

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

(1986)). The Due Process Clause does not “impose an

affirmative obligation on the State” to protect a

person’s life, liberty, or property; it acts as a

“limitation on the State’s power to act” rather than a

“guarantee of certain minimal levels of safety and

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

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

Due Process Clause ‘for its omissions.’” Pauluk v.

Savage, 836 F.3d 1117, 1122 (9th Cir. 2016) (quoting

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

1086 (9th Cir. 2000)).

But there are exceptions to this general rule. See

id. As relevant here, under the state-created-danger

doctrine, state actors may be liable “for their roles in

creating or exposing individuals to danger they

otherwise would not have faced.” Id. (quoting Kennedy

v. City of Ridgefield, 439 F.3d 1055, 1062 (9th Cir.

2006)). In the context of public employment, although

state employers have no constitutional duty to provide

their employees with a safe working environment, see

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

doctrine holds them liable when they affirmatively,

and with deliberate indifference, create or expose their

employees to a dangerous working environment. We

have recognized, for instance, that a state employer

can be liable under the state-created-danger doctrine

for knowingly assigning an employee to work in a

building infected with toxic mold, see Pauluk, 836 F.3d

at 1125, or for requiring a prison employee to work

alone with an inmate likely to cause her serious harm,

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

To state a due process claim under the statecreated-danger doctrine, a plaintiff must first allege

“affirmative conduct on the part of the state,” Patel v.

Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011)

(quoting Munger, 227 F.3d at 1086), that exposed him

to “an actual, particularized danger that [he] would

not otherwise have faced,” Martinez v. City of Clovis,

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

plaintiff must allege that the state official acted with

“deliberate indifference” to that “known or obvious

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

Plaintiffs’ allegations satisfy the first requirement,

which has several components. The state must have

taken actions that placed the plaintiff in a “worse

position” than he would have been in “had [the state]

not acted at all.” Pauluk, 836 F.3d at 1124 (alteration

in original) (quoting Johnson v. City of Seattle, 474

10a

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

exposed the plaintiff to an “actual, particularized

danger,” and the resulting harm must have been

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

1063).

The transfer of 122 inmates from CIM to San

Quentin was plainly affirmative conduct, as was the

decision to house the transferred inmates in open-air

cells and have them share facilities with the general

San Quentin population. And the transfer placed

Polanco in a much more dangerous position than he

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

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

transfer, there were many.

That harm was

foreseeable, because Defendants transferred inmates

from a prison experiencing an active COVID-19

outbreak to a prison that had managed to avoid such

an outbreak—and did so without properly testing or

screening the transferred inmates for COVID-19,

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

quarantining the inmates upon their arrival. The

allegations paint a clear picture: San Quentin had

managed to keep COVID-19 out, but Defendants

brought it in.5

So too was the danger “particularized.”

Affirmative state action that exposes a broad swath of

the public to “generalized dangers” cannot support a

state-created-danger claim. See Sinclair v. City of

Seattle, 61 F.4th 674, 676, 683 (9th Cir. 2023) (holding

that the plaintiff had not alleged a state-created5 As alleged in the Complaint, each Defendant was involved in

the administrative decisions underlying the due process claim.

We accordingly reject Defendants’ argument that some

Defendants are entitled to qualified immunity because of their

status as “medical officials.”

11a

danger claim because “the City-created danger was a

generalized danger experienced by all those members

of the public who chose to visit” a certain part of the

city). But a danger can be “particularized” even if it is

directed toward a group rather than an individual.

See Hernandez, 897 F.3d at 1133 (holding that the

danger to which the state exposed a group of

protesters was sufficiently particularized to support a

state-created-danger claim). The danger here falls

into the latter category because the transfer exposed a

“discrete and identifiable group”—prison guards and

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

See Sinclair, 61 F.4th at 683.

Finally, the danger to which Polanco was exposed

was sufficiently severe to raise constitutional

concerns. Although our precedent has not elaborated

on the level of harm required to sustain a statecreated-danger claim, it has been implicit in our cases

that not any risk will do—the harm must be severe

enough to constitute a “danger.” See, e.g., Grubbs, 974

F.2d at 120 (assault, battery, kidnapping, and rape);

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

at 1120 (serious illness leading to death); Hernandez,

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

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

and sexual violence). We do not attempt to delimit

here the range of harms that count, but we are

confident that exposure to COVID-19, at least in a prevaccine world, does.

Defendants respond that they cannot be held

responsible for Polanco’s death, because “[g]uards are

free to refuse to work in a prison.” In Defendants’

view, Polanco assumed the risk of COVID-19 exposure

by accepting—and not quitting—his job as a

corrections officer. But that argument runs headlong

12a

into Pauluk, in which we held that a public employer’s

deliberately indifferent transfer of an employee to an

office building infected with toxic mold would be a

constitutional violation even if the employee was

aware of the mold and presumably could have quit his

job when he learned of the transfer. See 836 F.3d at

1125. If the employee’s ability to leave his post did not

defeat the constitutional claim in Pauluk, it cannot

defeat the claim here.6

Plaintiffs’ allegations also satisfy the “deliberate

indifference” requirement. In the context of a statecreated-danger claim, deliberate indifference is a

subjective standard that requires a plaintiff to allege

facts supporting an inference that the official

“recognized an unreasonable risk and actually

intended to expose the plaintiff to such risk.” Herrera

v. L.A. Unified Sch. Dist., 18 F.4th 1156, 1160–61 (9th

Cir. 2021).7

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

that public employees’ freedom to leave their jobs may limit the

scenarios in which employees can bring claims under the statecreated-danger doctrine to those involving “deliberate

misrepresentations” by their public employer about the level of

danger. See Kaucher v. County of Bucks, 455 F.3d 418, 430 (3d

Cir. 2006). But the Third Circuit has since refrained from

embracing that dicta, describing Kaucher as standing for the

proposition that “a government employee may bring a

substantive due process claim against his employer if the state

compelled the employee to be exposed to a risk of harm not

inherent in the workplace.” Kedra v. Schroeter, 876 F.3d 424, 436

n.6 (3d Cir. 2017). That description of the state-created-danger

doctrine aligns with the doctrine in our circuit.

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

for a Fourteenth Amendment due process claim is an objective

13a

The Complaint alleges that Defendants were

aware of the danger that transferring potentially

COVID-positive inmates to San Quentin would pose to

San Quentin’s employees. By the time of the transfer,

state and local governments had enacted a range of

emergency health measures designed to prevent the

spread of COVID-19, including requirements to mask

when interacting with individuals outside one’s

household. As Plaintiffs allege, by May 2020, anyone

in California “vaguely paying attention” to the news

would have understood that COVID-19 was “highly

contagious” and “potentially deadly” and would have

been aware of the basic rules to prevent its spread,

such as limiting contact with people outside one’s

household,

social-distancing,

wearing

masks,

quarantining after exposure, and testing. In addition,

California Correctional Health Care Services had

opposed transfers between prisons because of the

“significant risk” of transmitting the disease between

institutions. Plaintiffs also allege that Defendants

understood that San Quentin’s construction posed

unique challenges to containing a potential outbreak

due to its tight quarters, shared spaces, and poor

ventilation.

Despite that knowledge, Defendants went ahead

with the transfer. That allegation, alone, does not

compel an inference that Defendants were

deliberately indifferent—for example, had Defendants

form of deliberate indifference. See Castro v. County of Los

Angeles, 833 F.3d 1060, 1069–70 (9th Cir. 2016) (en banc). But

we have continued to apply a purely subjective test to statecreated-danger claims. See Herrera, 18 F.4th at 1160–61

(recognizing a tension between the requisite mental states in

Castro and post-Castro state-created-danger cases but holding

that it was bound by the latter cases).

14a

acted to mitigate the risks inherent in a transfer, those

efforts could show that Defendants had not intended

to expose prison employees to an unreasonable risk.

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

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

deliberate indifference because she was “fairly active”

in attempting to protect the plaintiff); Herrera, 18

F.4th at 1163–64 (holding that a school aid was not

deliberately indifferent to the dangers a student faced

because the aid neither “abandoned” the student nor

“left him completely without protection”).

But according to the Complaint, Defendants did

not attempt to mitigate the risk. Despite their

knowledge of the dangers of COVID-19 and of the

basic measures to prevent its spread, Defendants did

not take precautions to avoid transferring COVIDpositive inmates to San Quentin or to decrease the

likelihood that COVID-19 would spread from

transferred inmates to San Quentin employees. They

moved ahead with the transfer while knowing that the

inmates’ test results were woefully out of date. They

failed to properly screen the inmates for symptoms

before the transfer; many inmates were screened too

early to determine whether they had symptoms before

boarding crowded buses. And Defendants increased

the risk that COVID-19 would spread throughout the

prison by placing the transferred inmates in cells with

grated rather than solid doors, having transferred

inmates use the same showers and mess hall as the

other inmates, and failing to provide masks or testing

to inmates and staff.

Defendants protest that the outbreak at CIM

necessitated a rapid transfer. But even if we were to

assume that the transfer itself could not have been

done more carefully, Defendants disregarded the

15a

safety of San Quentin employees after the transfer,

repeatedly ignoring express warnings that their

COVID-19 policies were insufficient and dangerous.

Two days after the transfer, the Marin County Public

Health Officer recommended that all transferred

inmates be completely sequestered from the original

San Quentin population and that all exposed inmates

and staff be required to wear masks. Rather than

adopt the Health Officer’s recommendations,

Defendants ordered that the Officer be informed that

he lacked the authority to mandate measures in their

prison. Further warnings came a few weeks later,

when a group of health experts prepared an “Urgent

Memo” for Defendants. Those experts cautioned that

San Quentin was at high risk of a “catastrophic superspreader event” due to its inadequate testing and

“grave lack of personal protective equipment and

masks.” Defendants did not follow those experts’

recommendations to adopt masking and testing

requirements either, despite the availability of both

masks and tests.

Taking the allegations in the Complaint as true,

this is a textbook case of deliberate indifference:

Defendants were repeatedly admonished by experts

that their COVID-19 policies were inadequate, yet

they chose to disregard those warnings.

See

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

rose to the level of subjective deliberate indifference

because defendants were “aware of the danger to the

plaintiffs” and yet “continued” their problematic

course of conduct).

In their briefs on appeal, Defendants offer a

different telling of the facts. In their view, the

allegations do not rise to the level of deliberate

indifference because Defendants faced an impossible

16a

tradeoff: the welfare of high-risk CIM inmates on the

one hand and the safety of San Quentin employees on

the other.

The Constitution, Defendants argue,

cannot require prison officials to place the safety of

their staff above the safety of the inmates entrusted to

their care.

We are sympathetic to the competing priorities

that public officials had to navigate during the early

days of the COVID-19 pandemic. But the specific

tradeoff that Defendants invoke here is incompatible

with the Complaint. Taking Plaintiffs’ allegations as

true and drawing reasonable inferences in their favor,

as we must at this stage of the proceedings, properly

testing and screening the inmates before the transfer

would have made the transfer safer for both San

Quentin employees and the transferred inmates.

Quarantining the transferred inmates, too, would

have benefitted all parties. And when it comes to

masks and tests, the Complaint expressly alleges that

there was no such tradeoff, asserting that masks and

other personal protective equipment were “easily

obtainable” and highlighting two separate occasions

on which Defendants turned down labs’ offers to

provide COVID-19 testing at San Quentin, at least one

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

Complaint, there is no room for Defendants’ version of

the events. We therefore hold that Plaintiffs have

sufficiently alleged that Defendants acted with

deliberate indifference toward the health and safety of

San Quentin employees, including Polanco, satisfying

the second prong of the state-created-danger claim.

Not only has Polanco alleged a violation of his due

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

but that right was also “clearly established at the time

17a

of the violation.” Pauluk, 836 F.3d at 1125 (quoting

Espinosa v. City & County of San Francisco, 598 F.3d

528, 532 (9th Cir. 2010)).

For the unlawfulness of an officer’s conduct to be

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

time of the officer’s conduct, the law was ‘sufficiently

clear that every reasonable official would understand

that what he [wa]s doing’ [wa]s unlawful.” District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “In

other words, existing law must have placed the

[un]constitutionality of the officer’s conduct ‘beyond

debate.’” Id. (quoting al-Kidd, 563 U.S. at 741).

Plaintiffs have met that demanding standard

because the unlawfulness of Defendants’ alleged

actions was clearly established by the combination of

two of our precedents: L.W. v. Grubbs, 974 F.2d 119

(9th Cir. 1992), and Pauluk v. Savage, 836 F.3d 1117

(9th Cir. 2016).8

In Grubbs, we recognized a state-created-danger

claim arising out of a prison’s disregard for the safety

of one of its employees. The plaintiff, a nurse working

8 We routinely rely on the intersection of multiple cases when

holding that a constitutional right has been clearly established.

See, e.g., Ioane v. Hodges, 939 F.3d 945, 957 (9th Cir. 2018)

(“Taken together, the holdings from [four prior cases] put the

unlawfulness of [the officer’s] conduct beyond debate.”); Gordon

v. County of Orange, 6 F.4th 961, 971 (9th Cir. 2021) (holding that

the relevant right was clearly established by the “principles

drawn from” three cases); Ballou v. McElvain, 29 F.4th 413, 42627 (9th Cir. 2022) (holding that a right was clearly established by

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

Supreme Court’s instruction that qualified immunity is improper

where “a legal principle [has] a sufficiently clear foundation in

then-existing precedent.” Wesby, 138 S. Ct. at 589.

18a

in an Oregon correctional institution, was raped by an

inmate. 974 F.2d at 120. She sued her supervisors

under § 1983, claiming that they had violated her due

process rights by requiring her to work alone with a

“violent sex offender” who the officers knew was “very

likely to commit a violent crime if placed alone with a

female.” Id. We denied the state’s motion to dismiss

because the nurse alleged that her supervisors “took

affirmative steps to place her at significant risk” and

“knew of the risks.” Id. at 122.

Grubbs presents a close analogy to this case.

There, as here, a public employee was harmed due to

her employer’s deliberately indifferent conduct. And

there, as here, the employee worked in a correctional

institution and was harmed in the process of carrying

out her job duties. Yet there are also differences; the

danger in Grubbs stemmed from a violent inmate,

whereas Polanco was harmed by a disease that he

contracted at his workplace. If Grubbs were the only

relevant precedent, whether Polanco’s due process

right was clearly established might be a close

question.

But Grubbs does not stand alone. In Pauluk, we

again recognized a claim under the state-createddanger doctrine, this time arising from an employer’s

deliberate indifference to workplace conditions posing

serious health risks. A state employee there alleged

that his employer violated his due process rights by

transferring him to an office building that the

employer knew was infested with toxic mold that the

employee would foreseeably breathe. 836 F.3d at

1119; see also id. at 1134 (Noonan, J., dissenting)

(“Pauluk . . . died from inhaling poisonous air in the

workplace.”). We held that the plaintiff had produced

sufficient evidence from which a reasonable jury could

19a

find a constitutional violation by concluding that the

state employer affirmatively transferred the employee

to the infested building—placing him in a “worse

position” than he had been in before—and that the

employer acted with deliberate indifference in

exposing the employee to the dangerous mold. Id. at

1125.

Together, Grubbs and Pauluk put public officials

on notice that they may be liable under the statecreated-danger doctrine in a scenario where:

(1) the harmed party is their employee (Grubbs

and Pauluk);

(2) the harmed party encountered the relevant

danger in the course of carrying out

employment duties in a correctional facility

(Grubbs);

(3) the danger was created by requiring the

employee to work in close proximity to people

who posed a risk (Grubbs);

(4) the physical conditions of the workplace

contributed to the danger (Pauluk); and

(5) the danger was a potentially fatal illness

caused by breathing contaminated air

(Pauluk).

Defendants argue that this case is nonetheless

unique because it involves a (novel) viral outbreak.

But after Pauluk, officers were on notice that they

could be held liable for affirmatively exposing their

employees to workplace conditions that they knew

were likely to cause serious illness, including dangers

invisible in the air. And taking Plaintiffs’ allegations

as true—again, as we must do at this stage of the

20a

proceedings—Defendants knew just that. 9 The fact

that the illness here was a newly discovered

communicable disease rather than a toxin would not

have led a reasonable official to conclude that the

danger could be ignored.10 See al-Kidd, 563 U.S. at

741 (“We do not require a case directly on point, but

existing precedent must have placed the statutory or

constitutional question beyond debate.”). COVID-19

may have been unprecedented, but the legal theory

that Plaintiffs assert is not.

Defendants raise three additional arguments for

why they are entitled to qualified immunity. None

succeed.

Defendants urge us to take judicial notice of

testimony that the Receiver gave before the California

Underpinning much of the dissent is the premise that

conditions were simply too uncertain in the spring of 2020 to hold

government officials liable for their responses to COVID-19. But

at the motion to dismiss stage, we must take all of Plaintiffs’

allegations as true, and Plaintiffs have plausibly alleged that

Defendants knew of, and consciously disregarded, the risk that

COVID-19 posed to San Quentin employees. See supra Section

III.A.2. If Defendants can show that they in fact lacked such

awareness, they may be entitled to qualified immunity at a later

stage of this litigation.

10 In

other contexts, we have rejected the argument that the

novelty of a particular means of causing harm should, in and of

itself, insulate officials from liability. See, e.g., Nelson v. City of

Davis, 685 F.3d 867, 884 (9th Cir. 2012) (“An officer is not entitled

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

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

(cleaned up) (quoting Deorle v. Rutherford, 272 F.3d 1272, 1286

(9th Cir. 2001))).

21a

State Senate, which they argue shows that they were

just following orders.

A court may take judicial notice of facts that are

“not subject to reasonable dispute” because they are

either “generally known within the trial court’s

territorial jurisdiction” or “can be accurately and

readily determined from sources whose accuracy

cannot reasonably be questioned.” Fed. R. Evid.

201(b). The fact that the Receiver testified before the

California Senate is judicially noticeable under that

standard, but that does not mean we can consider the

testimony for its truth. See Khoja v. Orexigen

Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018)

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

judicial notice does not mean that every assertion of

fact within that document is judicially noticeable for

its truth.”). Considering the Receiver’s version of the

events would transform Defendants’ motion to dismiss

into a motion for summary judgment without offering

Plaintiffs an opportunity to depose the Receiver and

further develop the record. See Fed. R. Civ. P. 12(d).

The district court did not abuse its discretion in

declining Defendants’ request to take judicial notice of

the Receiver’s testimony. 11

And even if the testimony could be considered for

its truth, Defendants would still not be entitled to

immunity. In his testimony before the California

Senate, the Receiver suggested that he was involved

11 We

also reject Defendants’ argument that the Complaint’s

mention of the Receiver’s testimony incorporated the full

testimony into the Complaint by reference. See Orellana v.

Mayorkas, 6 F.4th 1034, 1043 (9th Cir. 2021) (holding that the

“mere mention” of a document “is insufficient to incorporate” its

contents into a complaint (quoting Tunac v. United States, 897

F.3d 1197, 1207 n.8 (9th Cir. 2018))).

22a

in the decision to transfer inmates out of CIM, but he

did not indicate that he directed Defendants to

transfer inmates to San Quentin. The testimony also

does not suggest that the Receiver directed

Defendants’ post-transfer protocols.

This case is therefore unlike Hines v. Youseff, 914

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

1292 (9th Cir. 2020), on which Defendants rely. In

both of those cases, the plaintiffs’ claims arose from

actions state officials took while following the express

orders of a federal receiver or an overseeing district

court. See Hines, 914 F.3d at 1225, 1231; Rico, 980

F.3d at 1299–300. Even if we were to consider the

Receiver’s testimony alongside the Complaint, that is

not what the allegations and testimony suggest

happened here.

Defendants next invoke a statute that they argue

would have led reasonable prison officials to believe

that they could handle the COVID-19 outbreak

however they saw fit, without a risk of liability. We

reject that argument because the statute does not

affect the scope or clarity of the underlying

constitutional right, which is all that qualified

immunity considers.

The

Public

Readiness

and

Emergency

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

“provides immunity from federal and state law claims

relating to the administration of certain medical

countermeasures during a declared public health

emergency.” Cannon v. Watermark Ret. Cmtys., Inc.,

45 F.4th 137, 138 (D.C. Cir. 2022). Congress passed

the Act in 2005 to encourage during times of crisis the

“development

and

deployment

medical

23a

countermeasures” (such as diagnostics, treatments,

and vaccines) by limiting legal liability relating to

their administration. Id. at 139 (citation omitted).

The district court held that the PREP Act does not

confer immunity here, and Defendants did not appeal

(and do not attempt to dispute here) that aspect of the

district court’s order. But Defendants nonetheless

assert that they are entitled to qualified immunity

because of the Act’s existence, which Defendants

argue would have led a reasonable officer to believe

that he would be immune from liability for any actions

even arguably within the Act’s scope.

Defendants’ argument conflates the existence of a

constitutional right with the availability of a remedy

for a violation of that right. Qualified immunity turns

on the existence and clarity of the underlying right; an

officer is entitled to constitutional immunity from a

civil damages suit only if his conduct “does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(emphasis added) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). The PREP Act, however, limits

remedies, not rights. See 42 U.S.C. § 247d-6d(a)(1)

(providing that “a covered person shall be immune

from suit and liability under Federal and State law”

with respect to certain claims (emphasis added)). The

statute does not (and could not) narrow the scope of a

person’s constitutional rights; rather, it limits an

injured person’s ability to secure a remedy in some

circumstances.

Lastly, Defendants urge us to consider the policy

consequences of permitting this lawsuit to proceed.

24a

They warn that allowing Plaintiffs to further pursue

their due process claims will cause officials to “delay

or abandon necessary inmate healthcare decisions” in

the future. But the qualified immunity inquiry

already takes policy concerns of that sort into account.

See Harlow, 457 U.S. at 814 (describing qualified

immunity as the “best attainable accommodation of

[the] competing values” of permitting “vindication of

constitutional guarantees” on the one hand and

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

energy from pressing public issues,” on the other). It

is not for us to upset the careful balance that the

Supreme Court has struck in crafting qualified

immunity doctrine.12

IV.

For the foregoing reasons, we AFFIRM.

12 Plaintiffs also allege that Defendants violated their due process

right to familial association with Polanco. On appeal, Defendants

respond by arguing only that the familial association claims are

“derivative” of the state-created-danger claim asserted on

Polanco’s behalf and that they are therefore entitled to qualified

immunity on all claims for the same reasons. Defendants have

accordingly forfeited any other argument that they are entitled

to qualified immunity on the familial association claims. See AE

ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 638 (9th Cir.

2012) (holding that a party forfeited an argument by failing to

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

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

1992))). We therefore affirm the district court’s denial of

qualified immunity with respect to the familial association claims

as well.

25a

R. NELSON, dissenting:

Because the law is not clearly established, I

conclude that the Defendants are entitled to qualified

immunity. As such, I would reverse and therefore

dissent. 1

The conduct at issue begins in the earliest days of

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

the virus was far from settled, including best practices

for combatting the virus. Prison officials at San

Quentin State Prison and the California Department

of Corrections and Rehabilitation faced a difficult

task—managing prison affairs amid global chaos.

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

to say that they either failed or need to reassess. The

facts alleged are troubling and tragic.

These

allegations, which must be taken as true at this stage,

are sufficient for a negligence claim—perhaps even

gross negligence. But mere negligence does not

establish a violation of the Constitution. Tabares v.

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

Cir. 2021).

Even if the complaint alleges a

constitutional violation, as the majority holds, it is not

one that was clearly established at the time—a time

which, it bears repeating, was during one of the most

novel and disruptive pandemics in a century.

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

would not analyze the underlying constitutional violation. See

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

district courts and the courts of appeals should be permitted to

exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at

hand.”).

26a

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

established inquiry through the lens of what we know

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

386, 396–97 (1989) (“The ‘reasonableness’ of a

particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.”). The

COVID-19 pandemic was unprecedented. Therefore,

to say that the law was clearly established in my view

disregards the exacting legal standard to overcome a

qualified immunity defense.

The standard for clearly established law is

“demanding” and “protects ‘all but the plainly

incompetent or those who knowingly violate the law.’”

District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)). “[E]xisting precedent must have placed the

statutory or constitutional question beyond debate.”

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

right must be so clear “that every ‘reasonable official

would [have understood] that what he is doing violates

that right.’” Id. (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). And “[a] rule is too general if

the unlawfulness of the officer’s conduct ‘does not

follow immediately from the conclusion that [the rule]

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

(quoting Anderson, 483 U.S. at 641).

The Supreme Court has repeatedly told the Ninth

Circuit in particular “not to define clearly established

law at a high level of generality.” Kisela v. Hughes,

138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting City

& County of San Francisco v. Sheehan, 575 U.S. 600,

613 (2015)); see also Rivas-Villegas v. Cortesluna, 142

S. Ct. 4, 8–9 (2021) (per curiam); City of Escondido v.

Emmons, 139 S. Ct. 500, 503–04 (2019) (per curiam);

27a

al-Kidd, 563 U.S. at 742; Brosseau v. Haugen, 543 U.S.

194, 197–201 (2004) (per curiam). This is because

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

nature of particular conduct is clearly established.’”

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)

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

As is not uncommon in our circuit, the majority

regrettably fails to heed this guidance. Making

matters worse, in employing the high level of

generality that the Supreme Court has chastised us

for, the majority concludes that clearly established

means “close enough.” That is not the law.

The majority identifies two cases that, in its view,

clearly establish the constitutional violation: (1) L.W.

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

v. Savage, 836 F.3d 1117 (9th Cir. 2016). Maj. at 19–

20. Both cases fail to meet the high burden that the

Supreme Court requires.

The majority claims that Grubbs “presents a close

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

definition, fails to satisfy the standard for clearly

established. In Grubbs, a nurse was hired to work in

an institution’s medical clinic and was specifically led

to believe that she would not have to work alone with

violent sex offenders. 974 F.2d at 120. She was then

attacked when she was left alone with a known violent

sex offender who had failed all treatment programs at

the institution and who “was considered very likely to

commit a violent crime if placed alone with a female.”

Id. Unfortunately, the offender assaulted, battered,

kidnapped, and raped the nurse. See id.

The facts of Grubbs deeply contrast with those here

too much to clearly establish the law. The majority

28a

suggests that because “there, as here, the employee

worked in a correctional institution and was harmed

in the process of carrying out her job duties,” Maj. at

20, that this supports a finding of clearly established

law. But this falls directly into the “too high of a level

of generality” conundrum that we have repeatedly

been warned against applying. See al-Kidd, 563 U.S.

at 742 (“We have repeatedly told courts—and the

Ninth Circuit in particular—not to define clearly

established law at a high level of generality.” (cleaned

up)). Working in the same type of facility and

suffering harm as an employee cannot place

everything unconstitutional “beyond debate.” See id.

at 741. Such a holding would strip the clearly

established standard of all its teeth.

The majority all but concedes that the clearly

established standard cannot be met. As it recognizes,

“there are also differences; the danger in Grubbs

stemmed from a violent inmate, whereas Polanco was

harmed by a disease that he contracted at his

workplace.” Maj. at 20. The majority explains why

Grubbs cannot clearly establish the law here. For a

facility to directly place a violent person alone with an

employee does nothing to clearly establish the law for

the constitutional standards of an invisible, nonhuman, and novel global virus wafting through the

air. Respectfully, there is no question that the conduct

at issue in Grubbs fails to have put the officials here

“on notice” that their behavior relating to their

response to COVID-19 was unconstitutional. See, e.g.,

Wesby, 138 S. Ct. at 589.

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

the only relevant precedent, whether Polanco’s due

process right was clearly established might be a close

question.” Maj. at 20. But the majority then asserts

29a

that the law is clearly established because “Grubbs

does not stand alone,” and relies on Pauluk, 836 F.3d

1117, as well.

But Pauluk is not dispositive either. There, an

employee died from complications from toxic mold in

his workplace. Id. at 1119; Maj. 20-21. But again, the

differences here are distinguishable enough that they

cannot support a holding of clearly established law.

To begin, the law was not previously established

before Pauluk.

Id. at 1121 (granting qualified

immunity because it found the law was not clearly

established). And even though the Pauluk court noted

that the danger at issue was due to physical conditions

in the workplace, id. at 1119, this still cannot have put

the officers on notice that their conduct in handling

COVID-19 would be unconstitutional. The statecreated danger in Pauluk was both open and

notorious: There was a years-long history of mold;

Pauluk repeatedly reported the presence of mold in

the building and near his office desk; and Pauluk was

exposed to said mold for over five years before the

decline of his health and eventual passing. See id.

Pauluk also repeatedly requested a transfer to a new

workplace because of the mold but was denied by his

superiors, who were fully aware of the mold

infestation. See id. Therefore, the officials in Pauluk

were not only aware the danger existed, but they also

fully understood the risks of mold exposure and

refused to remedy the problem or permit Pauluk to

remedy it himself by transferring workplaces for

years. See id.

None of that exists here. Pauluk, like Grubbs,

contrasts with the rapidly evolving nature of COVID19. During the initial months of the pandemic,

guidance was uncertain, developing, and consistently

30a

changing.2 The same cannot be said about toxic mold.

The exposure of COVID-19 alleged here did not persist

over a matter of years in which the subject brought the

danger to the attention of any official, let alone

Defendants. Even if the complaint alleges that

Defendants knew or should have appreciated the risks

to Polanco, there is no allegation that Polanco raised

the official’s COVID-19 response as an issue or

requested a transfer. Rather than request transfer or

reassignment, Polanco volunteered to take on more

The majority counters that Plaintiffs’ have alleged that

Defendants knew of, and consciously disregarded, the risk that

COVID-19 posed to San Quentin employees. Maj. at 22 n.9. But

this is not dispositive. We have held that “a reasonable prison

official understanding that he cannot recklessly disregard a

substantial risk of serious harm, could know all of the facts yet

mistakenly, but reasonably, perceive that the exposure in any

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

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

San Diego County v. Sandoval, 142 S. Ct. 711 (2021) (cleaned up).

Thus, the ‘dispositive inquiry in the clearly established analysis

is whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted, based on the

law at the time.” Id. Even accepting the allegation that

Defendants knew about the risks of COVID-19 does not change

the novelty of the pandemic—or that Pauluk and Grubbs do not

clearly establish the law based on the facts alleged by plaintiffs.

That Defendants may be entitled to qualified immunity on

summary judgment, Maj. at 22 n.9, is cold comfort. The “‘driving

force’ behind creation of the qualified immunity doctrine was a

desire to ensure that insubstantial claims against government

officials [will] be resolved prior to discovery.” Pearson, 555 U.S.

at 231 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2

(1987) (cleaned up)). Accordingly, the Supreme Court has

repeatedly stressed the “importance of resolving immunity

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

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

(continued…)

31a

shifts. The facts as alleged also do not indicate that

Polanco was prohibited from taking any COVID-19

precautions he saw fit, such as wearing a mask or

bringing in his own personal protective equipment.

These are meaningful distinctions from Pauluk.

The majority concludes that the differences

between toxic mold and COVID-19 are a distinction

without a difference. Maj. at 21-22. I disagree.

COVID-19 presented prison officials with a rapidly

emerging and evolving challenge that is simply

different in kind from the problems facing employers

receiving continuing complaints over years about

mold. This does not satisfy the high threshold the

court’s caselaw commands for law to be clearly

established.3

The majority cites no other case law that would

clearly establish the law here. Instead, the majority

combines what it perceives to be the most compelling

attributes of Grubbs and Pauluk together to show that

the law is clearly established.4 But this mishmash of

those cases still examines the law at too high of a level

of generality. Denial of qualified immunity requires a

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

685 F.3d 867, 884 (9th Cir. 2012), for the proposition that “[a]n

officer is not entitled to qualified immunity on the ground that

the law is not clearly established every time a novel method is

used to inflict injury.” Maj. at 22 n.8 (quoting Deorle v.

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

case law must clearly establish the constitutional violation.

Here, no such law exists.

4 Even

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

establish the law. Indeed, Grubbs can hardly add much when

Pauluk held that the law was not clearly established in 2016.

And Pauluk does not clearly establish the law here with sufficient

specificity.

32a

factual case on point, even if not perfect, that places

the Defendants on notice that their conduct was

unconstitutional beyond debate. al-Kidd, 563 U.S. at

741. It is therefore no answer to say that “COVID-19

may have been unprecedented, but the legal theory

that Plaintiffs assert is not.” Maj. at 22. That holding

is far more dangerous to our future precedent, as it

disregards the clearly established inquiry we must

assess here. And a shared legal theory does not clearly

establish the law because it “does not necessarily

follow immediately from the conclusion that [the rule]

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

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

same logical flaw as the discussion of Grubbs: some

similarity is not enough.

It is also telling that plaintiffs cite no other binding

authority that clearly establishes the law beyond

Grubbs and Pauluk. I would thus also find that

plaintiffs have not met their burden of proof to

foreclose qualified immunity. See, e.g., Romero v.

Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991) (“The

plaintiff bears the burden of proof that the right

allegedly violated was clearly established at the time

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

of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017).

To show a clearly established right, plaintiffs must

demonstrate the right was clear “in light of the specific

context of the case, not as a broad general proposition.”

Keates v. Koile, 883 F.3d 1228, 1239 (9th Cir. 2018)

(quoting Mullenix, 577 U.S. at 12). In the specific

context of this case, they have not done so.

III

No clearly established law placed the Defendants

on notice that their alleged mismanagement of the

COVID-19 pandemic at San Quentin prison was

33a

unconstitutional such that every “reasonable official

would [have understood] that what he is doing violates

that right.” al-Kidd, 563 U.S. at 742 (citation

omitted). As such, Defendants are properly entitled to

qualified immunity. I would reverse and therefore

respectfully dissent.

34a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR

THE NORTHERN DISTRICT OF CALIFORNIA

__________

Case No. 3:21-cv-06516-CRB

PATRICIA POLANCO, et al.,

Plaintiffs,

STATE OF CALIFORNIA, et al.,

Defendants

___________

Filed March 3, 2022

___________

ORDER GRANTING IN PART AND DENYING

IN PART MOTION TO DISMISS

___________

On May 30, 2020, high-level officials at certain

California

agencies—including

the

California

Department of Corrections and Rehabilitation (CDCR)

and San Quentin State Prison—ordered the transfer

of 122 inmates at high risk of COVID-19 from the

California Institution for Men (CIM), where there

were 600 confirmed COVID-19 cases, to San Quentin,

where there were none. The inmates were transported

on overcrowded buses without having been tested for

COVID-19 or properly screened. At San Quentin, they

were housed in open-air cells and mingled with the

local prison population.

35a

The ensuing COVID-19 outbreak in San Quentin

killed 26 inmates and one correctional officer. That

officer was Sergeant Gilbert Polanco, a 55-year-old

man with high-risk factors. For several weeks in June,

Polanco’s duties included (among other things)

transporting inmates to the hospital in unsanitized

vehicles and without personal protective equipment

(PPE). He contracted COVID-19 in late June and died

on August 9.

Plaintiffs Patricia, Vincent, and Selena Polanco

bring this lawsuit against various state agencies and

ten high-level officials at CDCR, San Quentin, and

CIM. Plaintiffs argue that Defendants are liable under

42 U.S.C. § 1983 for violating Polanco’s and their own

constitutional rights by failing to protect Polanco from

a state-created danger. They also contend that

Defendants violated the Rehabilitation Act and

California’s Bane Act, and negligently inflicted

emotional distress on Plaintiffs. Defendants move to

dismiss.

The Court GRANTS the motion to dismiss with

respect to (1) the Section 1983 claims against the CIM

Defendants; (2) the Bane Act claim; and (3) the

negligent infliction of emotional distress claim. The

Court DENIES the motion as to (1) the Section 1983

claims against the CDCR/San Quentin Defendants;

and (2) the Rehabilitation Act claim. The Court grants

Plaintiffs leave to amend.

BACKGROUND

A. Parties

Gilbert Polanco died of complications from COVID19 on August 9, 2020 at the age of 55. Compl. (dkt. 1)

¶ 26. He was a Sergeant at San Quentin, where he had

36a

begun his career as a corrections officer at the age of

21. Id.

Plaintiffs are Patricia Polanco, the wife of Gilbert

Polanco, and Vincent and Selena Polanco, his two

children. Compl. ¶ 4. All are his successors-in-interest

pursuant to California law. Id.; see Cal. Civ. Proc.

Code § 377.11. They bring these claims individually

and as his successors-in-interest. Compl. ¶ 4.

The Institutional Defendants are the State of

California, CDCR, and San Quentin. (Plaintiffs are

suing the Institutional Defendants for their

Rehabilitation Act claim only.) CDCR is a state

agency. Id. ¶ 7. San Quentin is a state prison under

CDCR. Id. ¶ 8.

Plaintiffs have sued ten named Individual

Defendants and twenty Does, all in their individual

capacities. See id. ¶¶ 9-18, 19, 20. The Court will group

the ten named Individual Defendants in two groups

based on their alleged duties and their placement in

the CDCR/San Quentin hierarchy.

The first group is CDCR/San Quentin Defendants.

This group includes Ralph Diaz, the “Secretary, and

highest policymaking official, of CDCR,” id. ¶ 9; Estate

of Dr. Robert S. Tharratt, who was the “Medical

Director and a policymaking official of CDCR,” id.

¶ 10; Ronald Davis, the “Warden of San Quentin,” id.

¶ 11; Ronald Broomfield, the “Acting Warden of San

Quentin,” id. ¶ 12; Clarence Cryer, the “Chief

Executive Officer for Health Care [] of San Quentin,”

id. ¶ 13; Dr. Alison Pachynski, the “Chief Medical

Executive of San Quentin,” id. ¶ 14; and Dr. Shannon

Garrigan, the “Chief Physician and Surgeon of San

Quentin,” id. ¶ 15.

37a

The second group is CIM Defendants. This group

includes Louie Escobell, R.N., the “Chief Executive

Officer for Health Care” of CIM, id. ¶ 16; Dr.

Muhammad Farooq, the “Chief Medical Executive of

CIM,” id. ¶ 17; and Dr. Kirk Torres, the “Chief

Physician and Surgeon of CIM,” id. ¶ 18.

Further allegations as to the responsibilities of

each of these individuals are not reproduced here.

Where relevant, they will be discussed in the following

sections.

The Inmate Transfer

In light of the COVID-19 pandemic, on March 4,

2020, California Governor Gavin Newsom proclaimed

a State of Emergency in California. Id. ¶ 28. Around

this time, Defendants were “briefed and warned about

the grave danger to health and life posed by the

COVID-19

outbreak,

including

the

highly

transmissible nature of the virus and the necessity for

precautions” such as “quarantine of those known or

suspected to have been exposed to the virus, the need

for cleanliness, social distancing, and personal

protective equipment, and the need to regularly test

for virus carriers.” Id. A county shelter-in-place order

was enacted on March 16, followed by a statewide

order on March 19. Id. ¶¶ 29, 31. On March 18, the

Interim Executive Director of the Habeas Corpus

Resource Center, the State Public Defender, Mary

McComb, and others responsible for representing

people on death row sent a letter to Broomfield and

Dr. Pachynski. Id. ¶ 30. The letter implored San

Quentin to provide inmates with PPE and cleaning

supplies, to allow for social distancing, and to enact

other policies to protect the health of inmates and

staff. Id.

38a

On March 24, Governor Newsom issued Executive

Order N-36-20, suspending intake of inmates into all

state facilities for 30 days. Id. ¶ 32. On information

and belief, it was extended a further 30 days. Id.

“[U]ntil late May, 2020, California Correctional

Health Care Services (CCHCS) had opposed transfers

of inmates between prisons, saying that ‘mass

movement of high-risk inmates between institutions

without outbreaks is ill-advised and potentially

dangerous’ and noting that it ‘carries significant risk

of spreading transmission of the disease between

institutions.’” Id.

Nonetheless, on May 30, 2020, Defendants ordered

the transfer to San Quentin of 122 inmates from the

California Institution for Men (CIM), a state prison

under CDCR that is located in Chino, California. Id.

¶ 34. At the time, San Quentin had no COVID-19

cases; CIM, however, was “struggling with a severe

outbreak of COVID-19, which by then had reportedly

infected over 600 inmates and killed 9 of them.” Id.

“Most or all of the men who were transferred had not

been tested for COVID-19 for at least approximately

three or four weeks.” Id. “The transferred inmates also

were not properly screened for current symptoms

immediately before being placed on a bus.” Id. In fact,

a report by the California Office of the Inspector

General (OIG) later found that “a [CIM] health care

executive explicitly ordered that the incarcerated

persons not be retested the day before the transfers

began, and multiple CCHCS and departmental

executives were aware of the outdated nature of the

tests before the transfers occurred.” Id. ¶ 50. The

inmates were “packed onto buses in numbers far

exceeding COVID-capacity limits that CDCR had

mandated for inmate safety.” Id. ¶ 34; see id. ¶¶ 50-51

(California OIG report’s description of the decision to

39a

increase the number of people on the buses as

“inexplicable” and “not simply an oversight, but a

conscious decision made by prison and CCHCS

executives”).

Defendants placed the new inmates in the “Badger

housing unit, where tiers of open-air cells open into a

shared atrium.” Id. ¶ 35. They “used the same showers

and ate in the same mess hall as the other inmates.”

Id. Several of the transferred inmates tested positive

or displayed symptoms soon after arrival. Id. ¶ 35; cf.

id. ¶ 50 (stating that testing did not occur until they

had already been housed in San Quentin for six days).

On June 1, 2020, upon learning of the transfer,

Marin County Public Health (MCPH) Officer Dr.

Matthew Willis immediately recommended to

Defendants, including Acting Warden Broomfield,

that transferred inmates be sequestered from the

native San Quentin population, that all exposed

inmates be required to wear masks, and that staff

movement be restricted between different housing

units. Id. ¶ 38. Defendants did not adopt any of these

policies. Id.

As noted, at the time of the transfer on May 30, San

Quentin had no reported cases. Id. ¶ 34. Within days,

25 of the transferred inmates tested positive for

COVID-19. Id. ¶ 35. “Over three weeks, the prison

went from having no cases to 499 confirmed cases.” Id.

At the time, testing delays in San Quentin were 5-6

days. Id. ¶ 39. Both the Innovating Genomics Institute

at Berkeley and a research laboratory with the UCSF

Medical Center offered to provide free COVID-19

testing for San Quentin, but Defendants rejected the

officer. Id. ¶ 42.

40a

On June 13, a group of health experts toured San

Quentin at the request of the federal court-appointed

medical monitor and CCHCS Director Clark Kelso. Id.

¶ 39. On June 15, the experts circulated an “Urgent

Memo” warning that the outbreak could develop into

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

the prison and surrounding communities,” and that

the overcrowding and other factors created high risk

for a “catastrophic super-spreader event.” Id.

By July 7, 2020, more than 1,300 inmates and 184

staff members had tested positive. Id. ¶ 44. The

number of infected inmates had increased to 2,181 by

July 30. Id. By September 2, twenty-six inmates had

died. Id.

California State Senators have called the inmate

transfer a “fiasco, “abhorrent,” and “completely

avoidable,” and a California Assembly member called

it the “worst prison health screw up in state history.”

Id. ¶ 43. CDCR Medical Director Dr. Tharratt was

removed from his position. Id. Secretary Diaz

announced his retirement in August. Id. ¶ 46. A

California Court of Appeal later found that the

outbreak was the “worst epidemiological disaster in

California correctional history” and that the San

Quentin Warden and CDCR “acted with deliberate

indifference” to the rights and safety of San Quentin

prisoners. Id. ¶ 47 (quoting In re Von Staich, 56 Cal.

App. 5th 53 (2020)). California’s OIG released a threereport series assessing CDCR’s policies, guidance, and

directives regarding COVID-19. See id. ¶ 48-50. CalOSHA cited the CDCR and San Quentin with 14

violations, including five groups of violations that

were “Serious” and four that were “willful-serious.” Id.

¶ 52.

41a

Polanco’s Infection

As of June 2020, Polanco had “multiple high-risk

factors for COVID-19,” including obesity, diabetes,

hypertension, diabetic nephropathy, hyperlipidemia,

thrombocytopenia, and age (he was 55). Id. ¶ 53. His

obesity was “obvious.” Id. San Quentin knew of

another disability too: in 2008, Polanco had been “laid

off due to a gout-related foot injury”: he had difficulty

using the stairs, and officials had “refused to

accommodate his disability.” Id. ¶ 54. In 2013, he “won

on appeal” and returned to work. Id.

When San Quentin faced staffing shortages during

the pandemic—in part because corrections officers

“call[ed] in sick” or “out of fear”—Polanco “work[ed]

additional hours, double shifts, and often [came] home

to San Jose to sleep for a scant few hours before

making the trip back up.” Id. ¶ 55. He “worked as the

Active Lieutenant on Duty,” for which the San

Quentin and CDCR Defendants required him “to

transport sick inmates in need of care, including

inmates sick with COVID-19, to local hospitals and

refused to provide employees or inmates with

appropriately sanitized vehicles and equipment, or

with legally required N-95 respirators or other PPE,

even though appropriate PPE was available to

Defendants.” Id. ¶ 56. Prison staff, including Gilbert

Polanco, “were pleading for proper personal protective

equipment.” Id. ¶ 42. But they were told that “to the

extent San Quentin had such PPE, it was reserved for

medical professionals and not front-line correctional

officers and supervisors.” Id. Correctional officers

were relegated to wearing inmate-made masks or

masks sewn at home by loved ones. Id.

Polanco became infected with COVID-19 around

June 21, 2020. Id. ¶ 58. On June 26, he began

42a

experiencing symptoms, including a severe cough,

shortness of breath, and chest pain. Id. On June 28, he

had a drive-thru test and was informed on June 30

that it came back positive. Id. Plaintiffs Patricia and

Selena Polanco also each became “severely ill.” Id. By

July 3, Polanco’s condition had worsened, and he was

admitted to Kaiser Permanente San Jose Medical

Center. Id. ¶ 59. Polanco “fought a hard, up-and-down

battle for over one month, several times defying

doctors’ expectations that he was close to passing.” Id.

Plaintiffs were restricted to short Facetime virtual

visits, and even those were limited, as Polanco

struggle to breathe and to talk. Id. On August 9, he

died of complications caused by COVID-19. Id. ¶ 60.

Of the five San Quentin corrections officers that

required hospitalization, he was the only not to make

it through alive. Id.

Procedural History

On August 24, 2021, Plaintiffs filed this action in

federal district court. See generally Compl. On

December 2, Defendants moved to dismiss. See Mot.

(dkt. 22); Opp. (dkt. 28); Reply (dkt. 31).

II. LEGAL STANDARD

Under Rule 12(b)(6), a complaint may be dismissed

for failure to state a claim upon which relief may be

granted. Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) applies

when a complaint lacks either “a cognizable legal

theory” or “sufficient facts alleged” under such a

theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d

1201, 1208 (9th Cir. 2019). Whether a complaint

contains sufficient factual allegations depends on

whether it pleads enough facts to “state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.

43a

Twombly, 550 U.S. 544, 570 (2007)). A claim is

plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct

alleged.” Id. at 678. When evaluating a motion to

dismiss, the Court “must presume all factual

allegations of the complaint to be true and draw all

reasonable inferences in favor of the nonmoving

party.” Usher v. City of Los Angeles, 828 F.2d 556, 561

(9th Cir. 1987). “[C]ourts must consider the complaint

in its entirety, as well as other sources courts

ordinarily examine when ruling on Rule 12(b)(6)

motions to dismiss, in particular, documents

incorporated into the complaint by reference, and

matters of which a court may take judicial notice.”

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.

308, 322 (2007).

If a court dismisses a complaint for failure to state

a claim, it should “freely give leave” to amend “when

justice so requires.” Fed. R. Civ. P. 15(a)(2). A court

has discretion to deny leave to amend due to “undue

delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by

amendment previously allowed, undue prejudice to

the opposing party by virtue of allowance of the

amendment,

[and]

futility

amendment.”

Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532

(9th Cir. 2008).

III. DISCUSSION

Plaintiffs raise Section 1983 claims against the

CDCR/San Quentin Defendants and CIM Defendants

on both direct and supervisory liability theories, and a

Rehabilitation Act claim against the Institutional

Defendants. Of these, the Court dismisses only the

Section 1983 claim as to the CIM Defendants.

44a

Plaintiffs also raise state claims under the Bane Act

and negligent infliction of emotional distress (NIED).

The Court dismisses both claims because Plaintiffs fail

to plead the required elements.

Judicial Notice

As a preliminary issue, Defendants request judicial

notice and/or incorporation by reference as to: case

management statements from May and June 2020 in

Plata v. Newsom, No. 4:10-cv-01351-JST, a

longstanding case overseeing CDCR’s provision of

healthcare, RJN (dkt. 23) Ex A-D; an order in another

CDCR deliberate indifference case asking for further

briefing on qualified immunity in light of Plata, Ex E;

testimony by CCHCS Director Kelso before the

California State Senate, Ex F; early guidance

documents from the CDC on coronavirus, Ex G-I; and

declarations by the Department of Health and Human

Services (HHS) relating to the Public Readiness and

Emergency Preparedness (PREP) Act, Ex J-K.

Plaintiffs object to Exhibits A-I. Objection (dkt. 29).

Courts may judicially notice an adjudicative fact

that is “not subject to reasonable dispute” if it is

“generally known,” or “can be accurately and readily

determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b)(1)–(2).

But “[j]ust because the document itself is susceptible

to judicial notice does not mean that every assertion of

fact within that document is judicially noticeable for

its truth,” and “a court cannot take judicial notice of

disputed facts contained in [matters of] public

record[].” Khoja v. Orexigen Therapeutics, Inc., 899

F.3d 988, 999 (9th Cir. 2018). Thus, a court must

consider what facts are being proposed—i.e., “the

purpose for which [the document is] offered.” Id. at

1000. And though a document extensively relied upon

45a

in Plaintiffs’ complaint may be incorporated by

reference, “the mere mention of the existence of a

document is insufficient to incorporate the contents of

a document.” Id. at 1002; United States v. Ritchie, 342

F.3d 903, 908 (9th Cir. 2003). “[I]f the document

merely creates a defense to the well-pled allegations

in the complaint, then that document did not

necessarily form the basis of the complaint.” Khoja,

899 F.3d at 1002.

The Court finds that the HHS declarations (Ex JK) are judicially noticeable because they are in the

Federal Register. See 44 U.S.C. § 1507; Fed. R. Evid.

201. But the Court agrees with Plaintiffs that none of

the other documents may be judicially noticed or

incorporated by reference. Defendants appear to want

this Court to take as true factual representations

made in the Plata case management statements in Ex

A-D and to draw related inferences, but the Court

cannot do so because they go to the heart of the

Plaintiffs’ allegations. Khoja, 899 F.3d at 999. The

other documents are not sufficiently relevant to this

motion to be judicially noticed, and cannot be

incorporated by reference because Plaintiffs do not

extensively rely on them (and in some cases do not

even mention them). See id. at 1002.

The PREP Act

Defendants first argue that they are immune to all

claims under the PREP Act. This argument fails.

The PREP Act provides immunity for injuries

“caused by, arising out of, relating to, or resulting from

the administration to or the use by an individual of a

covered countermeasure if a declaration [by the HHS

Secretary] has been issued with respect to such

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

46a

the statute, covered countermeasures include

“qualified pandemic . . . product[s]” and “respiratory

protective device[s] . . . that the Secretary determines

to be a priority for use.” 42 U.S.C. § 247d- 6d(i)(1)(A),

(C), (D).

The Secretary issued a declaration in light of

COVID-19. Declaration Under the Public Readiness

and Emergency Preparedness Act for Medical

Countermeasures Against COVID-19, 85 Fed. Reg.

15,198, 15,198 (Mar. 17, 2020). It has been amended

several times during the pandemic. A “covered

countermeasure” may include “any antiviral, any

other drug, any biologic, any diagnostic, any other

device, any respiratory protective device, or any

vaccine, used . . . to treat, diagnose, cure, prevent,

mitigate or limit the harm from COVID-19.” Fourth

Amendment to the Declaration, 85 Fed. Reg. 79,190,

79,196 (Dec. 9, 2020). The Secretary has also declared

that failure to institute a covered countermeasure

may sometimes give rise to immunity:

Where

there

are

limited

Covered

Countermeasures, not administering a

Covered Countermeasure to one individual in

order to administer it to another individual

can

constitute

“relating

to . . .

the

administration to . . . an individual” under 42

U.S.C. 247d-6d. For example, consider 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

47a

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. The person

in the vulnerable population was able to

receive the vaccine only because it was not

administered to the person in the lessvulnerable population.

Id. at 79,197. Thus, courts have concluded that

immunity for “inaction claims” only lies when the

defendant’s failure to administer a covered

countermeasure to one individual has “a close causal

relationship” to the administration of that covered

countermeasure to another individual. Lyons v.

Cucumber Holdings, LLC, 520 F. Supp. 3d 1277,

1285–86 (C.D. Cal. 2021) (citation omitted).

As pleaded, Defendants’ alleged failures to

administer covered countermeasures to Polanco do not

bear a “close causal relationship” to their

administration of covered countermeasures to some

other individual. And many of the allegedly tortious

acts described in the complaint do not relate to a

covered countermeasure at all. The Court therefore

cannot conclude that any of the Defendants have

immunity under the PREP Act. The vast majority of

other courts to confront similar arguments have

reached the same conclusion. See, e.g., Dupervil v. All.

Health Operations, LCC, 516 F. Supp. 3d 238, 255

(E.D.N.Y. 2021) (PREP Act does not immunize a

nursing home for its alleged failure to take steps “such

as separating residents [and] enforcing social

distancing among residents and staff”); Smith v.

Colonial Care Ctr., Inc., 2021 WL 1087284, at *4 (C.D.

Cal. Mar. 19, 2021) (PREP Act does not provide

immunity where a complaint mainly concerns the

48a

defendant’s “policies and a failure to protect, not [] any

covered countermeasure”); Padilla v. Brookfield

Healthcare Ctr., 2021 WL 1549689, at *5 (C.D. Cal.

Apr. 19, 2021) (similar).

Qualified Immunity

“Qualified immunity protects government officers

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known.” Hernandez v. City of San Jose,

897 F.3d 1125, 1132 (9th Cir. 2018) (quotation and

citation omitted). “To determine whether an officer is

entitled to qualified immunity, [courts] ask, in the

order [they] choose, (1) whether the alleged

misconduct violated a right and (2) whether the right

was clearly established at the time of the alleged

misconduct.” Maxwell v. Cty. of San Diego, 708 F.3d

1075, 1082 (9th Cir. 2013) (citing Pearson v. Callahan,

555 U.S. 223, 232, 236 (2009)).

If there was a violation, the “salient question” is

whether the law at the time gave the defendants “fair

warning” that their conduct was unconstitutional.

Tolan v. Cotton, 572 U.S. 650, 656 (2014). Courts

should not define clearly established law “at a high

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

1152 (2018) (citation omitted). On the other hand, “a

general constitutional rule already identified in the

decisional law may apply with obvious clarity to the

specific conduct in question.” Taylor v. Riojas, 141 S.

Ct. 52, 53-54 (2020) (quoting Hope v. Pelzer, 536 U.S.

730, 741 (2002)); accord White v. Pauly, 137 S. Ct. 548,

551 (2017).

In analyzing Plaintiffs’ Section 1983 claims, the

Court first considers whether Plaintiffs have pleaded

49a

constitutional violations against each group of

Defendants and then asks whether that law was

clearly established.

Due Process

Section 1983 creates a cause of action against a

“person who, under color of any [state law], subjects,

or causes to be subjected, any [person] to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws.” 42 U.S.C.

§ 1983. A plaintiff must allege facts from which it may

be inferred that: (1) he was deprived of a federal right;

and (2) the person who committed the alleged violation

acted under the color of state law. West v. Atkins, 487

U.S. 42, 48 (1988). A Section 1983 claim may be

brought only by the person whose rights were

violated—or, if that person is deceased, by a

representative authorized by state law as to survival

actions. 42 U.S.C. § 1988; Moreland v. Las Vegas

Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998);

see Cal. Civ. Proc. Code § 377.30 (authorizing

successors-in-interest to bring survival actions).

The Fourteenth Amendment prohibits a state from

depriving a person of “life, liberty or property, without

due process of law.” U.S. Const. amend. XIV. But the

Constitution does not confer a general affirmative

right to governmental aid, even where such aid may

be necessary to secure life, liberty, or property. See

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489

U.S. 189, 196 (1989). The “general rule” is that a state

actor is not liable under the Due Process Clause “for

its omissions.” Munger v. City of Glasgow Police Dep’t,

227 F.3d 1082, 1086 (9th Cir. 2000). Yet a state actor’s

failure to protect “may give rise to a § 1983 claim

under the state-created danger exception ‘when the

state [actor] affirmatively places the plaintiff in

50a

danger by acting with deliberate indifference to a

known or obvious danger.’” Herrera v. Los Angeles

Unified Sch. Dist., 18 F.4th 1156, 1158 (9th Cir. 2021)

(quoting Patel v. Kent Sch. Dist., 648 F.3d 965, 971–

72 (9th Cir. 2011)). The state-created danger doctrine

holds state actors liable “for their roles in creating or

exposing individuals to danger they otherwise would

not have faced.” Pauluk v. Savage, 836 F.3d 1117,

1122 (9th Cir. 2016) (citing Kennedy v. City of

Ridgefield, 439 F.3d 1055, 1062 (9th Cir. 2006)).

The Ninth Circuit long ago found that a state actor

may be liable for a state-created danger in a workplace

setting. See L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.

1992) (Grubbs I) (defendants were plausibly liable

where they required a female nurse to be alone with a

young man with a history of sexually assaulting

women, without any sort of warning). More recently,

it has explained that such a claim must satisfy two

prongs:

First, a plaintiff must show that the state

engaged in “affirmative conduct” that placed

him or her in danger. This “affirmative

conduct”

requirement

has

several

components. A plaintiff must show not only

that the defendant acted “affirmatively,” but

also that the affirmative conduct placed him in

a “worse position than that in which he would

have been had [the state] not acted at all.” The

affirmative act must have exposed the

plaintiff to “an actual, particularized danger,”

and the resulting harm must have been

foreseeable. Second, the state actor must have

acted with “deliberate indifference” to a

“known or obvious danger.” “Deliberate

51a

indifference” requires a “culpable mental

state” more than “gross negligence.”

Pauluk, 836 F.3d at 1124–25 (citations omitted). The

Ninth Circuit recently reaffirmed that, in failure-toprotect claims that arise outside of detention settings,

the deliberate indifference test is a “purely subjective”

one. Herrera, 18 F.4th at 1161.1

The analysis in Pauluk is instructive. Daniel

Pauluk, an environmental health specialist for a

county health district, was transferred – over his

strong objection – to a facility where he had previously

been stationed and that had a known “proliferation of

toxic mold.” 836 F.3d at 1119. For that reason, Pauluk

asked his superiors to be transferred away, but the

requests were denied. Id. He began to experience

serious symptoms that multiple doctors later testified

were the result of “toxic mold exposure.” Id. at 111920. His poor health led to his departure from his job

two years later and his death from “mixed mold

mycotoxicosis.” Id. at 1120. In a Section 1983 case

brought by Pauluk’s successors-in-interest against his

superiors, the district court denied the defendants’

motion for summary judgment, holding that a jury

could find that they failed to protect him from a statecreated danger in the workplace.

On appeal, the Pauluk court agreed that, viewed in

the light most favorable to the plaintiffs, the

1 In

their opposition, Plaintiffs state that they agree with the

Herrera panel that “an objective deliberate indifference standard

should apply to Sergeant Polanco’s state-created danger claims.”

Opp. at 11-12 n.8. Yet although Herrera muses that, “[a]bsent our

precedent,” “we may have been inclined to” employ the objective

test, it plainly holds that the correct test is a subjective one, and

this Court is of course bound by that decision. 18 F.4th at 116061.

52a

defendants had violated the Due Process Clause by

failing to protect Pauluk from a state-created danger.

First, there was sufficient evidence to conclude that,

in transferring Pauluk, they engaged in “affirmative”

conduct that placed him in a “worse position” and that

the harm was foreseeable. Id. at 1125. Second, it held

that they acted with deliberate indifference because

they were aware of the “pervasive mold problems,”

were “on notice of the potential health problems

associated” with them, and some evidence indicated

they “actively tried to conceal the amount of, and

danger posed by, the mold.” Id. Nevertheless, the court

granted the defendants qualified immunity: although

Grubbs I had “clearly established” that the statecreated danger doctrine applied in the workplace

where a “human actor [] posed a known threat,” it had

not “clearly established” that the doctrine could apply

where the danger was a “physical condition in the

workplace.” Id. at 1126.

Plaintiffs also argue that the Individual

Defendants are liable under a supervisory theory. A

supervisor is only liable under Section 1983 for

violations of subordinates “if he or she was personally

involved in the constitutional deprivation or a

sufficient causal connection exists between the

supervisor’s unlawful conduct and the constitutional

violation.” Lemire v. California Dep’t of Corr. &

Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013)

(quoting Lolli v. Cnty. of Orange, 351 F.3d 410, 418

(9th Cir. 2003)). “The requisite causal connection can

be established by setting in motion a series of acts by

others, or by knowingly refusing to terminate a series

of acts by others, which the supervisor knew or

reasonably should have known would cause others to

inflict a constitutional injury.” Starr v. Baca, 652 F.3d

1202, 1207–08 (9th Cir. 2011) (citations omitted)

53a

(cleaned up). A supervisor can be liable “for own

culpable action or inaction in the training,

supervision, or control of his subordinates; for his

acquiescence in the constitutional deprivation; or for

conduct that showed a reckless or callous indifference

to the rights of others.” Id. at 1208 (quoting Watkins

v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.

1998)).

a. CDCR/San Quentin Defendants

The Court finds that Plaintiffs have pleaded a

Section 1983 claim against the CDCR/San Quentin

Defendants (Diaz, Estate of Dr. Tharratt, Davis,

Broomfield, Cryer, Dr. Pachynski, and Dr. Garrigan).

First, Plaintiffs have sufficiently pleaded that

Secretary Diaz and Dr. Tharratt, top officials at

CDCR, were deliberately indifferent to the statecreated COVID-19 outbreak at San Quentin. Plaintiffs

allege that Secretary Diaz is the “highest

policymaking official” of CDCR and was “personally

involved in the decision(s) to send CIM inmates to San

Quentin in May, 2020.” See Compl. ¶ 9. Dr. Tharratt

“was the Medical Director and a policymaking official

of CDCR who . . . was responsible for medical-related

oversight” and was similarly “personally involved” in

that same decision. Id. ¶ 10. Diaz and Dr. Tharratt

may not have been “personally involved” in

subsequent decisions as to exactly how the inmates

were housed once they arrived at San Quentin. But

Plaintiffs plausibly allege that the decision to transfer

inmates was (1) affirmative conduct that placed

Polanco in “actual, particularized danger” that led to

the foreseeable harm; and (2) that they were

deliberately indifferent to a “known or obvious

danger” to Polanco and other San Quentin guards

similarly situated. See Pauluk, 836 F.3d at 1124–25.

54a

(Although the Plaintiffs do not allege that Diaz and

Dr. Tharratt knew of a risk specific to Polanco, they

adequately allege that they knew of the obvious risk

to guards at San Quentin.) The plausibility of this

claim is further bolstered by the allegation that many

other actors—from state courts to state legislators to

state agencies—have ascribed deliberate indifference

(or something close) to the CDCR and its leaders with

respect to the inmate transfer. See generally Compl.

¶ 43-52.

In their reply brief, Defendants present a new

argument that they insist originates in Pauluk: that a

state-created workplace danger must be caused by

affirmative conduct that “increased workplace danger

to that particular employee.” Reply at 1. “Polanco fails

to articulate how he faced a known, heightened danger

compared to other custody staff at the prison, all of

whom were at the front lines during the early days of

the pandemic.” Id. The Court need not consider

arguments not in the initial brief. But in any case, the

Court does not read Pauluk or any other case to

require that. To be sure, affirmative state conduct that

puts employees at risk of hypothetical and generalized

dangers does not violate the Due Process Clause.

Postal employees face a known risk of harm in a

vehicle collision while delivering mail, but that is not

a sufficiently “actual” or “particularized” danger

because all who drive vehicles face this danger. No

cited case states that the “particularized danger”

requirement requires that the danger be unique to one

employee vis-à-vis another. The toxic mold in Pauluk

was not uniquely toxic to Pauluk. 2 Defendants here

2 It may well be that Pauluk had preexisting conditions that put

him at higher risk of mold-related disease than other employees,

55a

were plausibly deliberately indifferent to the higher

risk posed to Polanco and those similarly situated.

Plaintiffs have also pleaded that Diaz and Estate

of Dr. Tharratt are liable on a supervisory theory

because they “set[] in motion a series of acts by

others”—including officials at both San Quentin and

CIM—and/or “knowingly refus[ed] to terminate a

series of acts by others, which [they] knew or

reasonably should have known would cause others to

inflict a constitutional injury.” Starr, 652 F.3d at

1207–08. In setting in motion the acts by their

underlings that led to the increased danger to Polanco,

the decision to undertake the inmate transfer was “a

sufficient causal connection [] between the

supervisor’s unlawful conduct and the constitutional

violation.” See Lemire, 726 F.3d at 1074-75.

Plaintiffs have also plausibly alleged that Warden

Davis and Acting Warden Broomfield of San Quentin

were deliberately indifferent to the danger posed by

the COVID-19 outbreak. Plaintiffs plead that Davis

“was the highest policymaking official of San Quentin,

responsible for the oversight, management, hiring,

decisions, policies, procedures, provision of services,

and supervision of all employees and agents of San

Quentin.” Compl. ¶ 11. They allege that “he was

personally involved in the decision(s) to send CIM

inmates to San Quentin in May, 2020, the manner in

which that was done, the manner and location of

housing assignments for inmates at San Quentin” and

that he was responsible for “requiring [corrections

officers] to work and putting them at high risk for

but it does not follow that other employees harmed by the mold

lacked claims, if they were put in harm’s way by deliberately

indifferent superiors.

56a

contracting COVID-19 without proper or adequate

training, safety or disease, and without legally

required protection.” Id. Acting Warden Broomfield

was also in charge of the prison for some of the

relevant events (Plaintiffs do not allege the precise

dates of his tenure as Acting Warden). Id. ¶ 12. Even

if Davis and Broomfield were not involved in all

decisions, they were involved with those made after

the infected inmates arrived in San Quentin.

Broomfield and other Defendants were on the June 1

conference call in which the county public health

officer explained the grave risks and recommended

practices such as quarantines, mask-wearing, and

restricting staff movement between different housing

units. Compl. ¶ 38. Nonetheless, Davis and Broomfield

chose not to pursue any of these policies. See id. ¶ 35

(inmates were housed in “open-air cells open into a

shared atrium” and they “used the same showers and

ate in the same mess hall as the other inmates”). Davis

and Broomfield therefore engaged in various instances

of “affirmative conduct” that exposed Polanco and

similarly-situated guards to an “actual, particularized

danger” that was “foreseeable” in light of common

knowledge from state authorities as to the COVID- 19

risks at that time. See Pauluk, 836 F.3d at 1124–25.

Plaintiffs also sufficiently allege that Davis and

Broomfield were deliberately indifferent. See id.

The Court also finds that Plaintiffs plausibly allege

supervisory liability for Davis and Broomfield insofar

as they failed to control their subordinates who made

some of the above decisions and/or acquiesced in the

constitutional deprivation. See Starr, 652 F.3d at

1208; Compl. ¶ 42 (prison staff, including Polanco,

were “pleading” for PPE but it was denied them); see,

e.g., id. ¶ 76(i) (alleging that Defendants “refuse[d] to

train inmates and prison staff about public health and

57a

proper precautions to protect themselves and prevent

the spread of COVID-19 at San Quentin”); id. ¶ 77

(similar).

Plaintiffs have also plausibly alleged that Cryer,

Dr. Pachynski, and Dr. Garrigan were deliberately

indifferent to the danger to Polanco from San

Quentin’s COVID-19 outbreak. Cryer is the CEO of

Health Care for San Quentin and was “a policymaking official concerning medical care and health”

who “served as a principal advisor in institutionspecific application of health care policies and

procedures.” Compl. ¶ 13. They allege that he was

“responsible

for:

planning,

organizing,

and

coordinating the implementation of the health care

delivery system at San Quentin; [and] supervising

health care program managers responsible for

administrative services within healthcare.” Id. Dr.

Pachynski was “Chief Medical Executive of San

Quentin,” “a policy-making official concerning medical

care and health” who was “responsible for medicalrelated oversight, management, policies, procedures,

provision of services, supervision of all medical

employees and agents, and preventing and handling

contagious disease outbreaks at San Quentin.” Id.

¶ 14. Dr. Pachynski received the letter on March 18,

2020 from public defenders requesting PPE, cleaning

supplies, and social distancing procedures for inmates

and staff, but neither she nor other Defendants took

action then or later. See id. ¶ 30. As “Chief Physician

and Surgeon of San Quentin,” Dr. Garrigan was also a

“policy-making official . . . responsible for” many of the

same issues as Dr. Pachynski. Id. ¶ 15.

Plaintiffs do not precisely plead the scope of the

duties of these medical officials. Some decisions were

likely beyond the scope of their duties. For example,

58a

these medical officials were presumably not

responsible for the initial decision to transfer the

inmates from CIM to San Quentin, the lack of testing

before they got on the buses in CIM, or the crowded

conditions on the buses. However, many decisions at

San Quentin—including the failure to test or

quarantine infected inmates and the failure to provide

adequate PPE to corrections officers—plausibly were

made by Cryer, Dr. Pachynski, and/or Dr. Garrigan.

Plaintiffs allege that the Innovative Genomics

Institute and UCSF volunteered to provide free

testing, but the San Quentin Defendants (likely

including these medical officials) refused. Id. ¶ 42. As

such, Plaintiffs plausibly allege that they engaged in

multiple instances of “affirmative conduct” that

exposed Polanco to an “actual, particularized danger”

that was “foreseeable” in light of their knowledge of

the obvious COVID-19 risks at that time. See Pauluk,

836 F.3d at 1124–25. Even if these officials did not

know of the risk to Polanco, they surely knew of the

risk to San Quentin guards in his position (and who

have various comorbidities). Further, to the extent

that some of these actions were not directly taken by

these officials, Plaintiffs plausibly allege a “requisite

causal connection” by “setting in motion a series of

acts by others, or by knowingly refusing to terminate

a series of acts by others.” See Starr, 652 F.3d at 1207–

08; see, e.g., Compl. ¶ 42 (prison staff were “pleading”

for PPE but it was denied them).

At least at this stage of litigation, the Court

concludes that Plaintiffs have plausibly alleged that

the CDCR/San Quentin Defendants, both on their own

behalf and on a supervisory theory, violated the Due

Process Clause by failing to protect Polanco from the

state-created danger of a COVID-19 outbreak at San

Quentin.

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b. CIM Defendants

However, the Court concludes that Plaintiffs do not

plausibly allege that the CIM Defendants (Escobell,

Dr. Farooq, and Dr. Torres) violated the Due Process

Clause.

Plaintiffs allege that Louie Escobell, R.N., was the

“Chief Executive Officer for Health Care” of CIM and

therefore the “policy-making official concerning

medical care and health at CIM” and was therefore

“personally involved in the decision(s) to send CIM

inmates to San Quentin in May, 2020, and the manner

in which that inmate transfer was done.” Id. ¶ 16. Dr.

Farooq was the “Chief Medical Executive of CIM,”

about whom Plaintiffs make similar allegations. See

id. ¶ 17. Plaintiffs also make similar allegations about

Dr. Torres, the “Chief Physician and Surgeon of CIM.”

Id. ¶ 18. While there are relatively few specific

allegations as to exactly who made various decisions,

the complaint cites a report by the California OIG that

found that “a [CIM] health care executive explicitly

ordered that the incarcerated persons not be retested

the day before the transfers began.” Id. ¶ 50.

As Defendants note, the defendants in Pauluk and

Grubbs “intentionally directed employees into

dangerous job conditions knowing the danger

entailed.” Reply at 4. In contrast, the CIM Defendants

“worked at a separate prison and took no action

directing Polanco’s work assignments.” Id. In response

to this argument, Plaintiffs go up the ladder of

abstraction. They argue that the CIM Defendants

satisfy Pauluk because (1) they engaged in

“affirmative conduct” that endangered Polanco—

packing inmates onto a crowded bus without testing

them—that caused

foreseeable,

actual,

and

particularized harm of the expected type, and (2) they

60a

were deliberately indifferent to Polanco and other

corrections officers similarly situated. Yet the facts

remain an uneasy fit. Unlike the CDCR/San Quentin

Defendants, the CIM Defendants were not Polanco’s

superiors, not at San Quentin, and/or had little to do

with him. Although Plaintiffs allege that the CIM

Defendants were aware that the manner of transfer

might endanger people, it is difficult to infer that they

had knowledge of any danger particularized to

Polanco.

Relatedly, although this issue was not briefed,

proximate causation appears tenuous.

CIM

Defendants may have taken affirmative (and

deliberately indifferent) actions in the manner of the

transfer—e.g., crowding them on buses without masks

and without testing them—and that was likely to put

San Quentin guards in a worse position and that led

to harm. But the manner of transfer has a somewhat

attenuated causal relationship to the harm to Polanco.

First, Plaintiffs make only a conclusory allegation that

CIM Defendants (who make decisions at CIM, not all

of CDCR) were responsible for the actual decision to

initiate the inmate transfer. (Even supposing that

they lobbied to transfer inmates out of CIM, it

presumably was not their decision to send them to San

Quentin). Thus, even if the CIM Defendants are

responsible for the manner of transfer, they do not

have responsibility for the decision to transfer to San

Quentin, so it is difficult to ascribe the entire chain of

events to them. Second, several weeks of actions by the

CDCR/San Quentin Defendants occurred between

CIM Defendants’ actions (on May 30) and Polanco’s

infection (June 21). Compl. ¶¶ 34, 58. These actions

seem analogous to “intervening causes.” While injury

of guards at the other prison was a plausible result of

mismanaging the transfer, it is less foreseeable in

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light of the more limited scope of the CIM Defendants’

duties (i.e., to inmates and guards in CIM, but not to

Polanco) and in light of weeks of subsequent events

that weaken the chain of causation.

Ultimately, the Court cannot conclude that the

relatively conclusory allegations about the CIM

Defendants’ decisions at a prison in Southern

California—even if reckless or shocking—plausibly

make them liable for failing to protect a corrections

officer at a prison in Northern California. The Court

therefore concludes that Plaintiffs have failed to plead

sufficient “factual content [to] allow[] the court to draw

the reasonable inference that the [CIM Defendants

are] liable for the misconduct alleged.” See Iqbal, 556

U.S. at 678.3

c. Individual Capacity Claims

In addition to bringing Section 1983 claims in their

capacity as Polanco’s successors-in-interest, Plaintiffs

bring claims in their individual capacities as Polanco’s

children. A plaintiff’s “interest in her relationship

with a parent is sufficiently weighty by itself to

3 The Court notes, however, that the CDCR Defendants (Diaz and

Estate of Dr. Tharratt) may be liable for the actions of the CIM

Defendants on a supervisory theory. That is, even if the medical

officials at CIM did not owe a duty to guards at San Quentin, and

even if the chain of causation is broken by intervening events, the

same is not true of the CDCR Defendants, whose duties

presumably did stretch to San Quentin guards and who may bear

responsibility for those intervening events because of the CDCR

Defendants’ role in initiating and overseeing the transfer. See

Starr, 652 F.3d at 1207–08 (noting that the “requisite causal

connection” for supervisory liability “can be established by

setting in motion a series of acts by others, or by knowingly

refusing to terminate a series of acts by others, which the

supervisor knew or reasonably should have known would cause

others to inflict a constitutional injury”).

62a

constitute a cognizable liberty interest” under the

Fourteenth Amendment. Curnow v. Ridgecrest Police,

952 F.2d 321, 325 (9th Cir. 1991).

A governmental officer’s behavior violates

substantive due process only when it is “so egregious,

so outrageous, that it may fairly be said to shock the

contemporary conscience.” Cty. of Sacramento v.

Lewis, 523 U.S. 833, 847 n.8 (1998) (citation and

quotation omitted). Where “actual deliberation is

practical,” action taken with deliberate indifference

may shock the conscience. Id. at 851; Wilkinson v.

Torres, 610 F.3d 546, 554 (9th Cir. 2010). But where

decisions must be made “in haste, under pressure, and

frequently without the luxury of a second chance”—as

in a prison riot or a high-speed police chase—an

official must have “purpose to cause harm.” Lewis, 523

U.S. at 853, 854; accord Wilkinson, 610 F.3d at 554

(purpose to harm is necessary when an official makes

a “snap judgment” because of an escalating situation).

While the COVID-19 pandemic was of course an

“emergency,” see Opp. at 16, Compl. ¶ 28 (Governor

Newsom’s emergency declaration), that does not mean

“actual deliberation [was not] practical.” There is no

allegation in the complaint that there was some

exigent reason that the CDCR/San Quentin

Defendants had to immediately make the decision to

transfer CIM inmates to San Quentin on May 30,

2020, particularly after 60 days of no inmate transfers.

Compl. ¶ 32. Nor were the CDCR/San Quentin

Defendants precluded from “actual deliberation” as to

whether to pack infected inmates on crowded buses

without masks and then immediately house them in a

crowded open-air prison. On the facts pleaded, the

CDCR/San Quentin Defendants had sufficient time to

deliberate before making these decisions. (And some

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non-defendants did in fact deliberate: nurses at CIM

questioned the packing of untested inmates on buses,

asking in emails: “What about Patient [sic] safety?

What about COVID precautions?” Compl. ¶ 51.)

Because it was “practical” for CDCR/San Quentin

Defendants to deliberate, deliberate indifference is the

appropriate intent standard to determine whether

their action “shocks the conscience” and violated

Plaintiffs’ individual due process rights. For the

reasons described above, the Court concludes that

Plaintiffs have plausibly alleged that the CDCR/San

Quentin

Defendants

acted

with

deliberate

indifference

and

violated

their

individual

constitutional

rights.

(Plaintiffs’

personal

constitutional claims against the CIM Defendants fail

for the same reason that their claims as successors-ininterest fail.)

Clearly Established Law

Having concluded that the CDCR/San Quentin

Defendants violated Polanco’s and Plaintiff’s

constitutional rights, the Court now turns to whether

these rights were “clearly established at the time of

the alleged misconduct.” Maxwell, 708 F.3d at 1082.

As noted, there need not be a case precisely on point,

as “a general constitutional rule already identified in

the decisional law may apply with obvious clarity to

the specific conduct in question.” Taylor, 141 S. Ct. at

53-54. Though a court must not define a right at a high

level of generality, see Kisela, 138 S. Ct. at 1152, an

official’s “legal duty need not be litigated and then

established disease by disease or injury by injury,”

Est. of Clark v. Walker, 865 F.3d 544, 553 (7th Cir.

2017); cf. Maney v. Brown, 2020 WL 7364977, at *6 (D.

Or. Dec. 15, 2020) (denying qualified immunity to

prison officials because inmates had “a clearly

64a

established constitutional right to protection from a

heightened exposure to COVID-19, despite the novelty

of the virus”).

Cases in this circuit over more than three decades

have established that a state actor may violate the

Due Process Clause for failing to protect a person from

a state-created danger. See, e.g., Kennedy, 439 F.3d at

1062; Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989).

And it is well-established that this doctrine applies to

state employees who work in a prison. See Grubbs I,

974 F.2d at 121 (state plausibly failed to protect a

nurse from sexual assault at a medium-security

custodial institution); see also L.W. v. Grubbs, 93 F.3d

894, 900 (9th Cir. 1996) (Grubbs II) (reiterating the

deliberate indifference standard in that context). It is

also well-established that this doctrine applies in

workplace settings where the threat comes not from a

dangerous person but from a physical condition in the

workplace that causes disease. See Pauluk, 836 F.3d

at 1126. These cases, all of which predate the events

at issue here, gave the CDCR/San Quentin

Defendants “fair warning” that it violates the

Constitution to (1) engage in “affirmative conduct”

that exposes an employee to a “foreseeable,” “actual,

[and] particularized danger” from disease, while (2)

being “deliberately indifferent” to that danger. See id.

As currently pleaded, this general rule applied “with

obvious clarity” to the CDCR/San Quentin

Defendants’ decision to transfer 122 inmates from a

prison afflicted by a disease outbreak (that had

infected 600 and killed nine) in crowded buses to openair conditions in another prison among thousands of

uninfected inmates and guards. Compl. ¶¶ 32-34.

Arguing to the contrary, CDCR/San Quentin

Defendants repeatedly remind the Court that the

65a

COVID-19 pandemic was “novel” and “unprecedented”

and that “the law was not clearly established

regarding prison employee rights in the context of

managing an inmate health crisis.” See, e.g., Reply at

7. They also contend that best practices at the time

were unclear. See Opp. at 14 (noting that the health

inspectors who visited on June 13 argued that

quarantining in cells usually used for punishment

“may thwart efforts for outbreak containment” but

that Plaintiffs alleged that placing inmates in “openair cells” exacerbated the outbreak (citing Compl.

¶¶ 41, 35)).

While these two statements are not contradictory,

CDCR/San Quentin Defendants are undoubtedly

correct that May 2020 was a novel situation. At a later

point, the Court may well conclude that, in light of the

undisputed facts, a constitutional violation was not

clearly established because (for example) Defendants

made their decisions in the attempt to comply with

other guidance or law. See Fed. R. Civ. P. 56. The

Court may conclude that the case law did not clearly

establish any duty in the unique context of some of the

facts. Or the Court may conclude that, after CDCR

officials made the decision to transfer the infected

inmates, certain of the San Quentin Defendants were

not able to comply with the clearly established

requirements in the case law. The Defendants’ request

for judicial notice appears to be an attempt to adduce

facts outside the complaint necessary to make these

and similar arguments. 4 But as noted above, the

In requesting judicial notice as to materials in Plata, the

Defendants seem to be gesturing at this argument—that they

undertook the inmate transfer in part because they reasonably

thought that they should do so, based on the progress of other

66a

Court cannot consider any of this material at this

stage in the litigation.

For the purposes of this motion, the Plaintiffs have

pleaded violations of clearly established law. The

CDCR/San Quentin Defendants plausibly had “fair

warning” that deliberate indifference to the safety of

San Quentin corrections officers such as Polanco was

unconstitutional. See Tolan, 572 U.S. at 656. The

Court therefore declines to dismiss the Section 1983

claims against the CDCR/San Quentin Defendants.

D. Rehabilitation Act

Plaintiffs next argue that California, CDCR, and

San Quentin violated the Rehabilitation Act by not

providing Polanco with reasonable accommodation for

his disabilities. The Court holds that Plaintiffs

plausibly pleaded this claim.

The Rehabilitation Act provides that “[n]o

otherwise qualified individual with a disability in the

United States . . . shall, solely by reason of her or his

disability, be excluded from the participation in, be

denied the benefits of, or be subjected to

discrimination under any program.” 29 U.S.C.

§ 794(a). Under the Rehabilitation Act, institutional

defendants are liable for the vicarious acts of their

employees. Duvall v. Cty. of Kitsap, 260 F.3d 1124,

1141 (9th Cir. 2001).

“The standards used to determine whether an act

of discrimination violated the Rehabilitation Act are

the same standards applied under the Americans with

litigation. See RJN Ex A-D. The inclusion of various seemingly

contradictory CDC guidelines appears to be intended to do the

same. See RJN Ex G-I. These documents are not properly before

the Court at this time. See Khoja, 899 F.3d at 999.

67a

Disabilities Act (ADA).” Coons v. Sec’y of U.S. Dep’t of

Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (quoting

29 U.S.C. § 794(d)); see, e.g., Zukle v. Regents of Univ.

of California, 166 F.3d 1041, 1045-47 & n.11 (9th Cir.

1999) (applying reasonable accommodations analysis

to a discrimination claim under the Rehabilitation

Act). The Rehabilitation Act therefore incorporates

the ADA’s requirement that an employer make

“reasonable accommodations to the known physical or

mental limitations of an otherwise qualified

individual with a disability” unless the employer “can

demonstrate that the accommodation would impose

an undue hardship.” 42 U.S.C. § 12112(b)(5)(A).

A plaintiff alleging a failure-to-accommodate

discrimination claim under the Rehabilitation Act

must show: (1) that he had a disability within the

meaning of the Rehabilitation Act; (2) that the

employer had notice of his disability; (3) that he could

perform the essential functions of his job with a

reasonable accommodation; and (4) that the employer

refused to provide a reasonable accommodation. See

Samper v. Providence St. Vincent Med. Ctr., 675 F.3d

1233, 1237 (9th Cir. 2002). After an employee has

shown that he requires an accommodation, the

employer engages in an interactive process with the

employee

determine

appropriate

accommodation. See Zivkovic v. S. California Edison

Co., 302 F.3d 1080, 1089 (9th Cir. 2002).

To recover monetary damages, a plaintiff “must

prove intentional discrimination.” Duvall, 260 F.3d at

1138 (emphasis added). This higher intent standard is

satisfied by deliberate indifference, which in this

context “requires both [1] knowledge that a harm to a

federally protected right is substantially likely, and [2]

a failure to act upon that the likelihood.” Id. at 1139.

68a

The first element is met where the plaintiff “has

alerted the public entity to the need for an

accommodation (or where the need for accommodation

is obvious, or required by statute or regulation).” Id.;

cf. Ludovico v. Kaiser Permanente, 57 F. Supp. 3d

1176, 1198–99 (N.D. Cal. 2014) (“Implicit in these

statutory duties is that the employer actually know of

the alleged disability in question.”). The failure-to-act

element “must be a result of conduct that is more than

negligent, and involves an element of deliberateness.”

Duvall, 260 F.3d at 1139.

Plaintiffs satisfy the four threshold requirements.

First, Plantiffs allege that Polanco had “a physical or

mental impairment which for such individual

constitutes or results in a substantial impediment to

employment.” 29 U.S.C. § 705(20)(A)(i). Plaintiffs

plead that Polanco had six “physical impairments”:

obesity, diabetes, hypertension, hyperlipidemia,

thrombocytopenia, and diabetic nephropathy. Compl.

¶ 91. These impairments plausibly resulted in a

“substantial impediment to employment” insofar as

they put him at higher risk of contracting COVID-19

and negatively impacting his employment either

through illness or death. Second, Plaintiffs allege that

the Institutional Defendants and their delegees had

notice of these impairments. Plaintiffs do not allege

that Polanco notified his superiors or asked for an

accommodation. See Opp. at 23. Yet Defendants knew

of his disabilities because his “obesity was obvious,” he

had submitted Verification of Treatment letters to

excuse his medical absences from work, and he

previously went through an arbitration proceeding to

win his job back after he was laid off in 2008 when San

Quentin officials “refused to accommodate his

disability” after he had difficulty using the stairs.

Compl. ¶¶ 53-54, 91. This satisfies the “notice”

69a

element. Third, Plaintiffs allege that he performed the

functions of his job well. See id. ¶ 25 (noting that

Polanco was “beloved as [a] corrections officer,” that

San Quentin inmates “collectively demanded his

funeral be live-streamed throughout the prison, and

that Governor Newsom ordered the flag be flown at

half-staff on the day of Polanco’s death), ¶ 55 (noting

that he worked additional hours when the prison was

short-staffed), ¶ 56 (noting that he worked as the

“Active Lieutenant on Duty” and had duties “including

transferring sick inmates to local hospitals”). Fourth,

Plaintiffs allege that the Defendants “took no steps to

protect their own medically vulnerable staff members,

including Gilbert Polanco, from exposure to COVID19” during the transfer. Id. ¶ 42. Defendants provided

no accommodation. Plaintiffs have pleaded the four

required elements.

The failure to accommodate Polanco’s disabilities

also rises to the level of deliberate indifference,

although that appears to be a closer question. While

Defendants had knowledge of Polanco’s disabilities

from prior events, Defendants need to have

deliberately considered his disabilities in the

timeframe at issue. A state actor that is deliberately

indifferent to the danger of COVID-19 to San Quentin

guards such as Polanco may not necessarily exhibit

deliberate indifference to the danger of COVID-19 to

Polanco’s disability as such. The Court also notes that

the Rehabilitation Act has a more stringent causation

standard than the ADA and than most civil rights

laws: it forbids discrimination “solely by reason of . . .

disability.” 29 U.S.C. § 794(a); see, e.g., Martin v.

California Dep’t of Veterans Affs., 560 F.3d 1042, 1049

(9th Cir. 2009) (rejecting the plaintiff’s Rehabilitation

Act and ADA claims because she “was denied

admission because none of the facilities had adequate

70a

resources to be able to care for her properly, not

because of her disability”).

Nonetheless, the Court holds that Plaintiffs have

plausibly pleaded that Defendants considered the

obvious risks to disabled guards in the process of

making the alleged series of decisions at issue here.

They therefore have pleaded deliberate indifference.

The Court denies Defendants’ motion to dismiss the

Rehabilitation Act claim.

State Claims

The Court dismisses both of the state claims as

insufficiently pleaded.

Statutory Immunity

First, Defendants argue that California statutory

provisions bar state-law challenges to discretionary

decisions and failures to provision needed equipment

or personnel. At this time, the Court declines to

dismiss the claims on these bases.

Under California Government 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 discretion vested in him,

whether or not such discretion was abused.” The

California Supreme Court has distinguished between

“planning” functions of government, which cannot give

rise to liability, and “operational” ones, which can.

Johnson v. State, 69 Cal.2d 782, 794 (1968). A

planning function involves a “basic policy decision,”

not a merely “ministerial” one to implement a policy

already formulated. Caldwell v. Montoya, 10 Cal. 4th

972, 981 (1995).

Importantly, “an employee’s normal job duties are

not determinative; the burden rests with government

71a

defendants to demonstrate that they are entitled” to

immunity. AE ex rel. Hernandez v. Cty. of Tulare, 666

F.3d 631, 640 (9th Cir. 2012); see Johnson, 69 Cal.2d

at 794 n.8 (“[T]o be entitled to immunity[,] the state

must make a showing that such a policy decision,

consciously balancing risks and advantages, took

place.”). Thus, it is an “odd” case in which

discretionary act immunity can be found at the

motion-to-dismiss phase. AE, 666 F.3d at 640.

The Court therefore does not dismiss these claims

on this basis. Although some of the CDCR/San

Quentin Defendants’ decisions may turn out to be

“policy” decisions, the state has not made a showing

that (1) policy discretion was vested in each of these

individual defendants; and (2) each of the defendants’

challenged actions resulted from exercise of that policy

discretion. See Cal. Gov’t. Code § 820.2.

The Court also declines to dismiss these claims

under Government Code § 845.2, which immunizes

public entities and employees from liability “for failure

to provide [to a prison] sufficient equipment,

personnel, or facilities.” This provision ensures that

“essentially budgetary decisions . . . [are not] subject

to judicial review in tort litigation.” Zelig v. Cty. of Los

Angeles, 27 Cal. 4th 1112, 1142 (2002). Although

Plaintiffs allege that Defendants had inadequate

equipment and personnel, they do not allege that

these decisions were caused by budgetary issues. As

with § 820.2, this argument is premature at this stage

in litigation.

The Bane Act

Section 52.1 of the Bane Act “provides a cause of

action for [1] violations of a plaintiff’s state or federal

civil rights [2] committed by ‘threats, intimidation, or

72a

coercion.’” Chaudhry v. City of Los Angeles, 751 F.3d

1096, 1105 (9th Cir. 2014) (quoting Cal. Civ. Code

§ 52.1). The Bane Act also requires “specific intent” to

violate the victim’s rights, for which “a reckless

disregard for a person’s constitutional rights” may be

“evidence.” Reese v. Cty. of Sacramento, 888 F.3d 1030,

1045 (9th Cir. 2018); accord Cornell v. City & Cty. of

San Francisco, 17 Cal. App. 5th 766, 803, 804 (2017)

(where the constitutional right is “clearly delineated

and plainly applicable,” “[r]eckless disregard of the

‘right at issue’ is all that [is] necessary”). The “threat,

intimidation, or coercion” element of the Bane Act

need not be independent from the underlying

constitutional violation. See Reese, 888 F.3d at 104344.

Plaintiffs plausibly plead that the CDCR/San

Quentin Defendants violated Polanco’s constitutional

rights, and they likely sufficiently plead specific

intent. But they do not plead that any Defendant used

a “threat, intimidation, or coercion.” Plaintiffs seem to

assume they have done so simply by pleading a

Section 1983 claim. See Opp. at 17-18. But where

courts hold that facts underlying a Section 1983

violation necessarily give rise to a Bane Act claim,

they do so in the context of excessive force or wrongful

arrest, where “threat, intimidation, or coercion” are

invariably present. See, e.g., Rodriguez v. Cty. of Los

Angeles, 891 F.3d 776, 801–02 (9th Cir. 2018)

(excessive force); Reese, 888 F.3d at 1035–36 (same);

cf. Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir.

2013) (stating, a bit imprecisely, that “the elements of

[an] excessive force claim under § 52.1 are the same as

under § 1983”). In rejecting a Bane Act claim, a

California Court of Appeal recently distinguished the

excessive force/wrongful arrest cases on the same

ground, emphasizing that “[a]ny arrest without

73a

probable cause involves coercion.” Schmid v. City &

Cty. of San Francisco, 60 Cal. App. 5th 470, 483 (2021).

Unlike an excessive force claim, a failure-to-protect

claim does not automatically encompass “threat,

intimidation, or coercion.” Of course, in some broad

sense, “coercion” is implicated any time that an

employer asks an employee to do his job. Cf. Compl.

¶ 84 (seeming to allege that the work conditions

constituted “threat, intimidation, or coercion”). But as

currently pleaded, Plaintiffs do not come very close to

suggesting that the “coercion” attendant with

Polanco’s employers instructing him to do his job

during the COVID-19 outbreak at San Quentin was a

“threat, intimidation, or coercion” within the scope of

the Bane Act.

Plaintiffs’ various other arguments in their

opposition are largely beside the point. They make

various correct statements about the Bane Act: it does

not require violence, it does not require discriminatory

intent, it applies beyond hate crimes, “reckless

disregard” may satisfy the “specific intent” element,

and the “threat, intimidation, or coercion” element

need not be separate from the core constitutional

violation. See Opp. at 17-18; Reese, 888 F.3d at 1043.

But Plaintiffs fail to cite cases with analogous types of

“threat, intimidation, or coercion” nor plead specific

actions by Defendants that rise to the level of the

excessive force cases they cite.

As such, the Court dismisses the Bane Act claim

with leave to amend.

Negligent Infliction of Emotional

Distress

Finally, Plaintiffs’ NIED claim fails because

Plaintiffs do not allege that they witnessed the actions

74a

or inactions by Defendants that caused the injury. In

general, California law “limit[s] the right to recover for

negligently caused emotional distress to plaintiffs who

personally and contemporaneously perceive the

injury-producing

event

and

its

traumatic

consequences.” Thing v. La Chusa, 48 Cal. 3d 644, 666

(1989). The tortious event need not necessarily be a

“sudden occurrence.” Ochoa v. Superior Ct., 39 Cal. 3d

159, 168 (1985). For example, in Ochoa, the plaintiff

stated an NIED claim based on witnessing, repeatedly

over several days, doctors’ negligent care of her son

that led to his death. Recovery was permitted because

“there [was] observation of the defendant’s conduct

and the [] injury and contemporaneous awareness the

defendant’s conduct or lack thereof [was] causing

harm.” See id. at 169–70.

Plaintiffs do not allege that they observed the

Defendants’ conduct. They allege that they observed

Polanco before and after his work shift, as well as in

telephone calls during his shifts, during which he

would describe the circumstances of his work. Compl.

¶ 101. They also witnessed the onset and worsening of

his condition after he contracted COVID-19. Id. ¶¶ 58,

59, 101. But although they were aware of the conduct

of the Defendants that caused harm, they do not allege

that they witnessed the conduct. Because that is

insufficient under California law, the Court dismisses

this claim with leave to amend.5

5 Defendants also argue that this claim is barred by the workers’

compensation exclusivity rule. Because Plaintiffs’ claim fails

because they did not witness Defendants’ conduct, the Court need

not address this alternative argument at this time.

75a

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the

motion to dismiss with respect to (1) the Section 1983

claims against the CIM Defendants; (2) the Bane Act

claim; and (3) the negligent infliction of emotional

distress claim. The Court DENIES the motion to

dismiss as to (1) the Section 1983 claims against the

CDCR/San Quentin Defendants; and (2) the

Rehabilitation Act claim. The Court grants leave to

amend. Plaintiffs may file an amended complaint

within 30 days of this order.

IT IS SO ORDERED.

Dated: March 3, 2022

/s/ CHARLES R. BREYER

CHARLES R. BREYER

United States District Judge

76a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

___________

No. 22-15496

D.C. No. 3:21-cv-06516-CRB

Northern District of California, San Francisco

PATRICIA POLANCO; VINCENT POLANCO;

SELENA POLANCO; GILBERT POLANCO,

Deceased,

Plaintiffs-Appellees,

RALPH DIAZ; ESTATE OF ROBERT S.

THARRATT; RONALD DAVIS, Warden; RONALD

BROOMFIELD; CLARENCE CRYER; ALISON

PACHYNSKI, MD; SHANNON GARRIGAN, MD,

Defendants-Appellants,

and

STATE OF CALIFORNIA; CALIFORNIA

DEPARTMENT OF CORRECTIONS AND

REHABILITATION; SAN QUENTIN STATE

PRISON; LOUIE ESCOBELL, RN; MUHAMMAD

FAROOQ, MD; KIRK A TORRES, MD,

Defendants.

__________

Filed November 16, 2023

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___________

ORDER

___________

Before: FRIEDLAND and R. NELSON, Circuit

Judges, and CARDONE*,* District Judge.

Judge Friedland has voted to deny the petition for

rehearing en banc, and Judge Cardone so

recommends. Judge Nelson has voted to grant the

petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc, and no judge has requested a vote

on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petition for rehearing en banc is DENIED.

The Honorable Kathleen Cardone, United States

District Judge for the Western District of Texas, sitting by

designation.

78a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

___________

No. 22-15481

D.C. No. 3:21-cv-03058-LB

MICHAEL HAMPTON; JACQUELINE HAMPTON,

Plaintiffs-Appellees,

STATE OF CALIFORNIA; 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

Filed October 3, 2023

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

Circuit Judges, and Richard D. Bennett,* District

Judge.

Opinion by Judge Friedland

___________

OPINION

___________

FRIEDLAND, Circuit Judge:

Early in the COVID-19 pandemic, the California

Institution for Men (“CIM”) suffered a severe COVID19 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

* The Honorable Richard D. Bennett, United States Senior

District Judge for the District of Maryland, sitting by

designation.

80a

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.

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).

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.”

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.

81a

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

weathering the storm with no known cases of COVID19. 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 COVIDcapacity 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.

82a

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

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.

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

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).

83a

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 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 twothirds of the San Quentin inmate population. By early

September, twenty-six inmates and one correctional

officer had died of COVID-19.

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

84a

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.

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 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 wellpleaded 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)

85a

(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.

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

86a

(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 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

87a

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.

Defendants are not entitled to immunity under the

PREP Act on the face of the Complaint.

“Congress passed the [PREP] Act in 2005 to

encourage during times of crisis the ‘development and

deployment of 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,

88a

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).

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-

89a

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 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.

90a

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 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.

91a

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 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

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 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.

92a

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 posttransfer 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 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.

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.

5As 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).

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“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 v. Diaz, 76 F.4th

918, 925 (9th Cir. 2023) (quoting O’Brien v. Welty, 818

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

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,

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)).

94a

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

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)).

95a

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).

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).

96a

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 COVID19, 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 “intolerably grave” such that

involuntarily exposing inmates to the disease violated

then-current standards of decency. Id.

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

97a

“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 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

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.

98a

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 s

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