Pauluk v. Savage

• Decision Date: 08 September 2016
• Docket Number: No. 14-15027,14-15027
• Citation: 836 F.3d 1117
• Parties: Wendy J. Pauluk, Psy.D, individually and as personal representative of the proposed Estate of Daniel Pauluk; Jaime L. Pauluk; Chrissy J. Pauluk, Plaintiffs–Appellees, v. Glenn Savage, an individual; Edward Wojcik, an individual, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

836 F.3d 1117

Wendy J. Pauluk, Psy.D, individually and as personal representative of the proposed Estate of Daniel Pauluk; Jaime L. Pauluk; Chrissy J. Pauluk, Plaintiffs–Appellees,

v.Glenn Savage, an individual; Edward Wojcik, an individual, Defendants–Appellants.

No. 14-15027

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 11, 2016—San Francisco, California

Filed September 8, 2016

Peter M. Angulo (argued) and Walter R. Cannon, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, Nevada, for Defendants–Appellants.

John J. Tofano (argued), Las Vegas, Nevada, for Plaintiffs–Appellees.

Before: John T. Noonan, William A. Fletcher, and Mary H. Murguia, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Murguia

Dissent by Judge Noonan

OPINION

W. FLETCHER

, Circuit Judge:

This appeal stems from the death of Daniel Pauluk, an employee of the Clark County Health District (“CCHD”) in Nevada. Pauluk's widow and daughters sued the CCHD and two of its employees, Edward Wojcik and Glenn Savage, alleging that their exposure of Pauluk to a workplace environment infested with toxic mold caused his death, in violation of the Due Process Clause of the Fourteenth Amendment. The district court denied summary judgment to Wojcik and Savage (collectively, “individual Defendants”). They bring an interlocutory appeal, contending that they are entitled to qualified immunity.

This case lies at the intersection of two lines of authority—on the one hand, the state-created danger doctrine under which constitutional due process claims may be brought; on the other, the Supreme Court's decision in Collins v. City of Harker Heights , 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)

, declining to find a general due process right to a safe workplace.

We hold that Collins

does not bar Plaintiffs' due process claim. Plaintiffs have stated a claim under the state-created danger doctrine, notwithstanding the fact that the danger at issue is a physical condition in the workplace. However, we reverse the district court's denial of summary judgment as to Wojcik and Savage, on the ground that the due process right asserted by Plaintiffs was not clearly established at the time of the violation.

I. Background

A. Facts

Because this is an appeal from the denial of the individual Defendants' motion for summary judgment, we view the facts in the light most favorable to Plaintiffs. Kennedy v. City of Ridgefield , 439 F.3d 1055, 1059 (9th Cir.2006)

. Except as noted, we recount the facts as viewed in this light.

Daniel Pauluk worked for the CCHD in Nevada as an Environmental Health Specialist from 1998 until illness forced him to take leave in 2005. During his tenure at the CCHD, Pauluk was transferred a number of times. He was initially assigned to the CCHD's “Shadow Lane” facility. He later worked at two satellite offices before being transferred back to Shadow Lane in February 2003. Pauluk did not want to return to Shadow Lane due to concerns about the presence of mold. Shadow Lane, along with several other Clark County buildings, suffered from chronic roof and water leakage problems that resulted in the proliferation of toxic mold inside the facilities. Pauluk was transferred back to Shadow Lane, over his objection, because his supervisor had been reassigned to that facility.

Between 2003 and 2005, while he was working at Shadow Lane, Pauluk complained repeatedly about mold. For example, he requested testing of a ceiling panel above his desk “[d]ue to the history of mold” in the building, and he reported “mold spores” found near his desk. Pauluk repeatedly requested, both orally and in writing, that he be transferred from Shadow Lane because mold exposure was adversely affecting his health.

Defendants Edmund Wojcik and Glenn Savage worked at Shadow Lane during the time at issue. Both were Pauluk's superiors in his chain-of-command. Pauluk reported to his immediate supervisor, Paul Klouse, who reported to Wojcik, who reported to Savage. When Pauluk made a transfer request or a report about mold, it was ordinarily made to Klouse and was then “channel[ed]” up to Wojcik and Savage. On one occasion, Pauluk personally asked Wojcik for a transfer, but Wojcik told Pauluk that he needed to follow the proper “channel” when making a transfer request. Although the parties dispute the manner in which Wojcik and Savage responded to Pauluk's complaints about mold, they agree that all of Pauluk's transfer requests were denied.

Plaintiffs maintain that Pauluk's exposure to mold at Shadow Lane led to Pauluk's illness and eventual death. Pauluk was exposed to mold starting as early as 1998, but he did not start having health problems until he was transferred back to Shadow Lane in 2003. Shortly after this transfer, Pauluk began to experience a number of adverse health effects, including “mental confusion & slow thinking,” “chronic exhaustion,” “headaches,” “chronic diarrhea

,” “airway obstruction in [his] lungs,” breathing problems, “chills,” a “stiff neck,” “cramps in back and abdomen,” vomiting, kidney cysts, and dehydration. Deposition testimony from several doctors corroborated that Pauluk was ill and that the illness was caused by mold. One doctor testified that he treated Pauluk for a variety of ailments that the doctor concluded were the result of “toxic mold exposure.” Another doctor treated Pauluk for “aspergillosis

,” an infection caused by mold. A third doctor, who treated Pauluk toward the end of his life, testified that mold exposure in the workplace “was causally related to [Pauluk's] illness.”

Pauluk's poor health eventually forced him to leave his job. In October 2005, Pauluk took leave under the Family and Medical Leave Act based on his doctor's Labor Department certification stating that he was suffering from “[t]oxic mold exposure with airflow obstruction.” Pauluk's illness progressively worsened during the next two years. He died on July 17, 2007. Pauluk's death certificate originally stated that his cause of death was “end stage debility” and “chronic obstructive pulmonary disease

.” The certificate was amended a month later to state that the cause of death was “mixed mold mycotoxicosis.”

B. Procedural History

After Pauluk's death, his wife and daughters filed suit under 42 U.S.C. § 1983

against the CCHD, Wojcik, and Savage. They alleged that CCHD and the individual Defendants' role in exposing Pauluk to a dangerous, mold-infested work environment caused his death. They brought claims under the Due Process Clause of the Fourteenth Amendment as well as under state law. After years of litigation in state and federal court, Wojcik and Savage moved for summary judgment. They contended that there was insufficient evidence to support Plaintiffs' claims (1) that Shadow Lane was unconstitutionally unsafe, (2) that the defendants acted with deliberate indifference, and (3) that there was a causal relationship between conditions at Shadow Lane and Pauluk's death. Wojcik and Savage also argued that they were entitled to qualified immunity.

The district court granted in part and denied in part Wojcik and Savage's motion for summary judgment. The court granted summary judgment to them on a negligent supervision and training claim but denied summary judgment as to all other claims.

Defendants Wojcik and Savage filed this interlocutory appeal seeking review of the district court's order denying qualified immunity. On July 2, 2014, a motions panel of this court denied without prejudice Plaintiffs' motion to dismiss for lack of jurisdiction. See Nat'l Indus., Inc. v. Republic Nat'l Life Ins. Co. , 677 F.2d 1258, 1262 (9th Cir.1982)

(stating that a merits panel may consider appellate jurisdiction despite an earlier denial of a motion to dismiss).

II. Standard of Review

We review de novo a challenge to our appellate jurisdiction over an interlocutory appeal. Bingue v. Prunchak , 512 F.3d 1169, 1172 (9th Cir.2008)

. We also review de novo an interlocutory appeal from the denial of summary judgment based on qualified immunity. Kennedy , 439 F.3d at 1059.

III. Appellate Jurisdiction

Plaintiffs contend that we lack jurisdiction over this interlocutory appeal because the district court based its denial of summary judgment on purely factual grounds. The individual Defendants, on the other hand, contend that we have jurisdiction over the “purely legal” question of whether, “assuming the factually-supported version of events offered by [Plaintiffs] is correct,” the district court erred in denying qualified immunity. We agree with the individual Defendants.

In general, we have jurisdiction to hear appeals only from “final decisions.” 28 U.S.C. § 1291

; Johnson v. Jones , 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). However, the Supreme Court has created an exception to the final judgment rule for certain interlocutory appeals when the district court has denied a motion for summary judgment based on qualified immunity. “[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.” Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Not every interlocutory appeal from a denial of a motion for summary judgment based on qualified immunity is immediately appealable. The Supreme Court has distinguished between (1) an appeal raising the “purely legal” question of whether the facts alleged by the plaintiff demonstrate a violation of clearly established law, and (2) an appeal contesting the district court's conclusion that a genuine issue of material fact exists. Johnson , 515 U.S. at 313, 319–20, 115 S.Ct. 2151

; see also

Cunningham v. City of Wenatchee , 345 F.3d 802, 807 (9th Cir.2003) ; Behrens v. Pelletier , 516 U.S. 299, 306, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). Since its decision in Johnson, the Supreme Court has repeatedly stated that a court of...