Polanco v. Diaz
| Docket Number | 22-15496 |
| Decision Date | 07 August 2023 |
| Parties | PATRICIA POLANCO; VINCENT POLANCO; SELENA POLANCO; GILBERT POLANCO, Deceased, Plaintiffs-Appellees, v. 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted March 8, 2023 San Francisco, California
Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge Presiding D.C. No. 3:21-cv-06516-CRB
Joshua C. Irwin (argued), Stefano Abbasciano, and Hima Raviprakash Deputy Attorneys General; Fiel D. Tigno, Supervising Deputy Attorney General; Chris A. Knudsen, Senior Assistant Attorney General; Rob Bonta, Attorney General; Attorney General's Office; Oakland, California; for Defendants-Appellants.
Michael J. Haddad (argued), Julia Sherwin, Brian Hawkinson and Teresa Allen, Haddad &Sherwin LLP, Oakland, California, for Plaintiffs-Appellees.
Adam R. Pulver, Allison M. Zieve, and Scott L. Nelson, Public Citizen Litigation Group, Washington, D.C., for Amicus Curiae Public Citizen.
Before: Michelle T. Friedland and Ryan D. Nelson, Circuit Judges, and Kathleen Cardone, [*] District Judge.
Opinion by Judge Friedland; Dissent by Judge R. Nelson
The panel affirmed the district court's denial of defendants' motion to dismiss a complaint on the basis of qualified immunity in an action brought pursuant to 42 U.S.C. § 1983 by the family of San Quentin Prison guard Gilbert Polanco, who died from complications caused by COVID-19.
A few months into the COVID-19 pandemic, high-level 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 Polanco and over twenty-five inmates.
The panel held that based on the allegations in the complaint, defendants were not entitled to qualified immunity. Plaintiffs sufficiently alleged a violation of Polanco's substantive due process right to be free from a state-created danger, under which state actors may be liable for their roles in creating or exposing individuals to danger they otherwise would not have faced.
Taking the allegations in the complaint as true, the failure to adequately test or screen inmates prior to the transfer, the transfer itself, and the decision to house the inmates in open-aired cells upon arriving at San Quentin, among other things, placed Polanco in a much more dangerous position than he was in before, the danger was particularized and sufficiently severe to raise constitutional concerns, and defendants were aware of the danger that transferring potentially COVID-positive inmates to San Quentin would pose to employees.
The panel held that the unlawfulness of defendants' alleged actions was clearly established by the combination of two precedents: L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), which recognized a claim under the state-created danger doctrine arising out of a prison's disregard for the safety of a female employee who was raped after being required to work alone with an inmate known to be likely to commit a violent crime if placed alone with a woman; and Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016), which recognized a claim under the state-created danger doctrine arising from an employer's deliberate indifference to workplace conditions that exposed an employee to dangerous airborne mold. Accordingly, defendants were not entitled to qualified immunity.
Contrary to Supreme Court guidance, the majority employed a high level of generality to determine that the law was clearly established.
OPINION
A few months into the COVID-19 pandemic, high-level 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.
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, 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 COVID-19. Other prisons were not so fortunate. The California Institution for Men ("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 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. 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.
B.
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