836 F.3d 1117 (9th Cir. 2016), 14-15027, Pauluk v. Savage

Docket Nº:14-15027
Citation:836 F.3d 1117
Opinion Judge:W. FLETCHER, Circuit Judge:
Party Name: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.
Attorney: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.
Judge Panel: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 MURGUIA, Circuit Judge, concurring in part and dissenting in part:
Case Date:September 08, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1117

836 F.3d 1117 (9th Cir. 2016)

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

September 8, 2016

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

Page 1118

Appeal from the United States District Court for the District of Nevada, Philip M. Pro, Senior District Judge, Presiding, D.C. No. 2:07-cv-01681-PMP-VCF

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

SUMMARY[*]

Civil Rights

The panel reversed the district court's order, on summary judgment, denying qualified immunity to two employees of the Clark County Health District in an action brought pursuant to 42 U.S.C. § 1983 by the widow and daughters of Daniel Pauluk, an employee of the Health District, who died allegedly from toxic mold in his workplace.

The panel first held that in this interlocutory appeal it had jurisdiction to decide whether the evidence demonstrated a violation by the defendant employees, and whether such violation was in contravention of federal law that was clearly established at the time.

The panel held that viewing the facts in the light most favorable to plaintiffs, they had shown a violation of the constitutional right, grounded in the Fourteenth Amendment's Due Process Clause, to be free of state-created danger. The panel held that the Supreme Court's decision in Collins v. City of Harker Heights, 503 U.S. 115 (1992), declining to find a general due process right to a safe workplace, did not bar plaintiffs' due process claim brought under the state- created danger doctrine. The panel nonetheless reversed the district court's order denying qualified immunity because the panel determined that it was not clearly established, at the time of the unconstitutional actions, that the state-created danger doctrine applied to claims based on physical conditions in the workplace.

Concurring in part and dissenting in part, Judge Murguia agreed with the opinion's analysis as to the scope of the court's jurisdiction to review the district court's denial of summary judgment on qualified immunity grounds, and with its conclusion that the district court erred in denying qualified immunity to the defendant employees. She respectfully disagreed with the opinion's conclusion that plaintiffs presented a cognizable claim that defendants affirmatively acted with deliberate indifference to Pauluk's substantive due process rights under the state-created danger doctrine.

Dissenting, Judge Noonan stated that the law governing the state-created danger doctrine was clearly established at the time and that any reasonable official in defendants' shoes would have understood that they were violating it.

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.

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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

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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...

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