NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 29 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WENDY J. PAULUK, Psy.D, individually No. 14-15027
and as personal representative of the
proposed Estate of Daniel Pauluk; JAIME D.C. No. 2:07-cv-01681-PMP-
L. PAULUK; CHRISSY J. PAULUK, VCF
Plaintiffs - Appellees,
MEMORANDUM*
v.
GLENN SAVAGE, an individual;
EDWARD WOJCIK, an individual,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Argued and Submitted February 11, 2016
San Francisco, California
Before: NOONAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Defendants–Appellants (“Defendants”) Glenn Savage and Edward Wojcik
bring this interlocutory appeal challenging the district court’s denial of qualified
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
immunity. We conclude that the Appellants are entitled to qualified immunity, and
we therefore reverse the district court.
We have jurisdiction to decide whether, assuming that the Plaintiffs-
Appellees’ (“Plaintiffs”) version of the facts is true, the Defendants violated a
clearly established constitutional right. Behrens v Pelletier, 516 U.S. 299, 312–13
(1996); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059–60 (9th Cir. 2006).
The Defendants are entitled to qualified immunity only if the facts, taken in the
light most favorable to the plaintiffs, demonstrate (1) that the Appellants’ conduct
violated a constitutional right, and (2) that the constitutional right was “clearly
established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). We have discretion to
grant qualified immunity on either ground. Pearson v. Callahan, 555 U.S. 223,
236 (2009).
Even assuming that the Defendants violated the Constitution by transferring
Pauluk to Shadow Lane in 2003 and subsequently refusing to move him out, we
conclude that a constitutional violation, if any, was not “clearly established.” The
facts of this case are very similar to Collins v. City of Harker Heights, 503 U.S.
115 (1992). Both Collins and this case involved constitutional allegations
stemming from a state employer’s decision to send a person into a work
environment polluted by a biotic danger, such as lack of oxygen (as in Collins) or
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toxic mold (as in this case). Collins, 503 U.S. at 117. In Collins, the Supreme
Court rejected the plaintiff’s claim that there was a constitutional violation under
such circumstances. Id. at 130. Given the similarity between the facts of this case
and Collins, it was reasonable for the Defendants to assume that their conduct did
not violate the Constitution.
Plaintiffs may be correct that this case may be distinguished from Collins.
Here, Plaintiffs have alleged a constitutional claim under the state-created danger
doctrine, rather than arguing simply that Defendants violated Pauluk’s
constitutional right to a safe workplace. Collins does not necessarily foreclose
Plaintiffs’ claims, given that we have previously permitted a state-created danger
claim to proceed, notwithstanding the fact that the harm occurred in a workplace
environment. See L.W. v. Grubbs, 974 F.2d 119, 122 (9th Cir. 1992).
Nevertheless, even assuming that the state-created danger doctrine is properly
construed as an “exception” to Collins such that the plaintiffs’ have alleged a valid
constitutional violation, the factual circumstances of this case are simply too
similar to the facts of Collins for the Defendants to have been “on notice [that]
their conduct [wa]s unlawful.” Pearson, 555 U.S. at 244 (quoting Hope v. Pelzer,
536 U.S. 730, 739 (2002)).
REVERSED and REMANDED.
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