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Ninth Circuit:
State-Created Danger Doctrine Justifies Suit Over Death
Majority Says California Might Be Liable for Death of San Quentin Prison Guard From COVID-19
By a MetNews Staff Writer
The State of California might be liable to the widow and children of a guard at San Quentin who died from COVID-19 after prison officials transferred 122 men from a facility where the disease was rampant, the Ninth U.S. Circuit Court of Appeals held yesterday in a 2-1 opinion in which the majority cited the “state-created danger doctrine.”
Under that doctrine, Circuit Judge Michelle T. Friedland said, writing for the majority, state employers may be held liable for harms to employees “when they affirmatively, and with deliberate indifference, create or expose their employees to a dangerous working environment.”
Accepting the allegations of the pleading as true for present purposes, those circumstances were present, she said, given that no inmates were infected with COVID-19 at San Quentin until inmates who had not been tested for the virus were transferred there and were not segregated, despite advice from a Marin County public health officer to house them separately.
COVID-19 spread, and more than 25 inmates who contracted the virus died, as did guard Gilbert Polanco, whose family sued the state, the warden, and others.
Qualified Immunity
Friedland’s opinion, joined in by District Court Judge Kathleen Cardone of the Western District of Texas, sitting by designation, affirms a decision by District Court Judge Charles R. Breyer of the Northern District of California denying the state’s motion to dismiss on the basis of qualified immunity. Circuit Judge Ryan D. Nelson dissented.
Allegations of the complaint show a violation of a clearly established constitutional right, precluding application of qualified immunity, Friedland said. It is clearly established by precedent that the state can be held liable under the “state-created danger doctrine” which implicates a due-process denial, she explained.
Addressing the state-created danger doctrine, she wrote:
“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.”
She continued:
“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.”
‘Deliberate Indifference’
“Deliberate indifference” had been pled because “according to the Complaint, Defendants did not attempt to mitigate the risk” inherent in the transfer of prisoners, she wrote, commenting:
“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.” The danger was “particularized”—because it put in peril inmates and guards—and created a danger severe enough to warrant application of the doctrine, Friedland said.
Nelson’s Dissent
Nelson wrote:
“Because the law is not clearly established, I conclude that the Defendants are entitled to qualified immunity.”
The transfer of inmates, he noted, occurred during a period of “global chaos.”
He observed:
“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….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.”
The dissenter recited that the U.S. Supreme Court has admonished the Ninth Circuit “not to define clearly established law at a high level of generality,” and remarked: “As is not uncommon in our circuit, the majority regrettably fails to heed this guidance.”
Friedland responded in a footnote:
“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….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.”
The case is Polanco v. Diaz, 22-15496.
Suit Against Church
The Ninth Circuit, in a second case decided yesterday, held that the “church autonomy doctrine,” founded on the First Amendment’s Free Exercise Clause, would not be offended by allowing James Huntsman’s fraud suit against the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints to go forward, reversing a summary judgment in favor of the defendant.
Huntsman claims the church accepted large donations from him, misrepresenting to purposes to which they would be applied.
Writing for the majority, Circuit Judge William A. Fletcher said:
“In the case before us, we are not required to rely on or interpret the Church’s religious teachings to determine if it misrepresented how it was using tithing funds. Nor are we required to examine Huntsman’s religious beliefs about the appropriate use of church money.
“Instead, as presented to us, the questions are secular. The questions are whether the Church’s statements about how it would use tithing funds were true, and whether Huntsman reasonably relied on those statements when he made tithing contributions.”
Circuit Judge Kim McLane Wardlaw signed Fletcher’s opinion. District Court Judge Edward R. Korman of the Eastern District of New York, sitting by designation, wrote a concurring and dissenting opinion in which he insisted that a reasonable juror would not conclude that the church made misrepresentations and that summary judgment should be affirmed.
The case is Huntsman v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints, 21-56056.
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