FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDY J. PAULUK, Psy.D, No. 14-15027
individually and as
personal representative of D.C. No.
the proposed Estate of 2:07-cv-01681-PMP-VCF
Daniel Pauluk; JAIME L.
PAULUK; CHRISSY J.
PAULUK, OPINION
Plaintiffs-Appellees,
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
Filed September 8, 2016
Before: John T. Noonan, William A. Fletcher,
and Mary H. Murguia, Circuit Judges.
2 PAULUK V. SAVAGE
Opinion by Judge W. Fletcher;
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-
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PAULUK V. SAVAGE 3
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.
COUNSEL
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.
4 PAULUK V. SAVAGE
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 (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.
PAULUK V. SAVAGE 5
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.
6 PAULUK V. SAVAGE
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 V. SAVAGE 7
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
8 PAULUK V. SAVAGE
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.
PAULUK V. SAVAGE 9
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 (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 (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; see also Cunningham v. City of Wenatchee,
345 F.3d 802, 807 (9th Cir. 2003); Behrens v. Pelletier,
516 U.S. 299, 306 (1996). Since its decision in Johnson, the
Supreme Court has repeatedly stated that a court of appeals
has jurisdiction over an appeal from a denial of qualified
immunity, even when the district court’s order concludes that
there are disputed issues of material fact. Plumhoff v.
Rickard, 134 S. Ct. 2012, 2018–20 (2014); Behrens, 516 U.S.
at 312–13 (“Denial of summary judgment often includes a
determination that there are controverted issues of material
fact, and Johnson surely does not mean that every such denial
of summary judgment is nonappealable.” (citation omitted)).
Because we do not have jurisdiction over a district court’s
determination that there are genuine issues of material fact,
10 PAULUK V. SAVAGE
we cannot review Wojcik and Savage’s arguments that there
was insufficient evidence to show that Shadow Lane was
unsafe, that the defendants acted with deliberate indifference,
or that there was a causal relationship between the conditions
at Shadow Lane and Pauluk’s death. But we do have
jurisdiction, construing the facts and drawing all inferences
in favor of Plaintiffs, to decide whether the evidence
demonstrates a violation by Wojcik and Savage, and whether
such violation was in contravention of federal law that was
clearly established at the time. See Behrens, 516 U.S. at
312–13; Kennedy, 439 F.3d at 1060.
IV. Qualified Immunity
We apply a two-part analysis in qualified immunity cases.
Kennedy, 439 F.3d at 1060. “First, a court must determine
whether—resolving all disputes of fact and credibility in
favor of the party asserting the injury—the facts adduced at
summary judgment show that the officer’s conduct violated
a constitutional right.” Id. (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)). Second, “if the court determines that the
conduct did violate a constitutional right, [the] second prong
requires the court to determine whether, at the time of the
violation, the constitutional right was ‘clearly established.’”
Id. We conclude, viewing the facts in the light most
favorable to Plaintiffs, that Plaintiffs have shown a violation
of the constitutional right, grounded in the Fourteenth
Amendment’s Due Process Clause, to be free of state-created
danger. We nonetheless reverse the district court’s denial of
summary judgment because it was not clearly established, at
the time of Wojcik and Savage’s unconstitutional actions, that
the state-created danger doctrine applied to claims based on
physical conditions in the workplace.
PAULUK V. SAVAGE 11
A. Due Process
Plaintiffs rely on a line of cases holding that exposure by
a state actor to a state-created danger violates due process.
The individual Defendants rely on Collins v. City of Harker
Heights, 503 U.S. 115 (1992), in which the Supreme Court
held that a state actor has no duty under the Due Process
Clause to provide a safe workplace. We address each line of
authority in turn, before turning to the interaction between the
two.
1. State-Created Danger
The “general rule” is that a state actor is not liable under
the Due Process Clause “for its omissions.” Munger v. City
of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir.
2000). There are two exceptions to this general rule:
“(1) when a ‘special relationship’ exists between the plaintiff
and the state (the special-relationship exception); and
(2) when the state affirmatively places the plaintiff in danger
by acting with ‘deliberate indifference’ to a ‘known or
obvious danger’ (the state-created danger exception).” Patel
v. Kent Sch. Dist, 648 F.3d 965, 971–72 (9th Cir. 2001)
(citations omitted). We are concerned here with the state-
created danger exception.
The exception is based in part on DeShaney v. Winnebago
County Department of Social Services, 489 U.S. 189 (1989),
in which the mother of a child who was beaten and
permanently injured by his father brought suit against social
workers and other local officials who had permitted the child
to remain with his father despite receiving complaints about
abuse. The Supreme Court held that the state had no free-
standing constitutional obligation to protect the child from his
12 PAULUK V. SAVAGE
abusive father. According to the Court, “the harms [the child]
suffered occurred not while he was in the State’s custody, but
while he was in the custody of his natural father” and the state
“played no part in the[] creation” of the dangers the child
faced. Id. at 201.
Relying on this language, our court and a majority of
other circuits have held that a state actor can be held liable
when that state actor did “play a part” in the creation of a
danger. See Gormley v. Wood-El, 93 A.3d 344, 360 (N.J.
2014) (“Most federal circuit courts now recognize the state-
created-danger doctrine as a basis for a substantive-due-
process violation.” (citing Sanford v. Stiles, 456 F.3d 298,
304 (3d Cir. 2006))); see also L.W. v. Grubbs (Grubbs I),
974 F.2d 119, 122 (9th Cir. 1992). Under the state-created
danger doctrine, a state actor can be held liable for failing to
protect a person’s interest in his personal security or bodily
integrity when the state actor affirmatively and with
deliberate indifference placed that person in danger. The
doctrine holds state actors liable “for their roles in creating or
exposing individuals to danger they otherwise would not have
faced.” Kennedy, 439 F.3d at 1062.
Our circuit first recognized the state-created danger
doctrine in Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989),
in which a police officer pulled over a car in the early
morning. After arresting the driver, the officer left the female
passenger alone in a high crime area at 2:30 a.m. The
passenger was subsequently attacked and raped. We held that
the officer could be held liable under § 1983 for the attack
and rape because, according to the plaintiff’s evidence, the
officer “affirmatively place[d] her in danger and then
abandon[ed] her.” Id. at 596. Since Wood, we have
repeatedly analyzed various constitutional allegations
PAULUK V. SAVAGE 13
premised on the state-created danger doctrine. See, e.g.,
Campbell v. Wash. Dept. of Soc. Servs., 671 F.3d 837 (9th
Cir. 2011); Patel, 648 F.3d 965; Johnson v. City of Seattle,
474 F.3d 634 (9th Cir. 2007); Kennedy, 439 F.3d at 1062;
Lawrence v. United States, 340 F.3d 952 (9th Cir. 2003);
Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082 (9th
Cir. 2000); Huffman v. County of Los Angeles, 147 F.3d 1054
(9th Cir. 1998); Penilla v. City of Huntington Park, 115 F.3d
707 (9th Cir. 1997); Grubbs I, 974 F.2d 119; Wood, 879 F.2d
583.
2. Collins
Wojcik and Savage contend that the Supreme Court’s
decision in Collins precludes the application of the state-
created danger doctrine in cases like this, where the danger is
a physical condition in a government employee’s workplace.
In Collins, an employee for a city sanitation department died
of asphyxia after he entered a manhole to unclog a sewer line.
His widow subsequently brought a § 1983 action against the
city, alleging “that her husband had ‘a constitutional right to
be free from unreasonable risks of harm to his body, mind
and emotions and a constitutional right to be protected from
the City of Harker Heights’ custom and policy of deliberate
indifference toward the safety of its employees.’” Collins,
503 U.S. at 126 n.9. She further claimed that “[t]he city’s
policy and custom of not training its employees and not
warning them of the danger allegedly caused Collins’ death
and thus deprived him of those rights.” Id. The Court
summarized her claim as a “general allegation that the city
deprived [Collins] of life and liberty by failing to provide a
reasonably safe work environment.” Id. at 125–26.
14 PAULUK V. SAVAGE
The Court held that the widow had not stated a cause of
action. Reluctant to recognize new due process claims that
would overlap with tort claims under state law, the Court
rejected “petitioner’s claim that the governmental employer’s
duty to provide its employees with a safe working
environment is a substantive component of the Due Process
Clause.” Id. at 126. The Court held that “the Due Process
Clause does not impose an independent federal obligation
upon municipalities to provide certain minimal levels of
safety and security in the workplace.” Id. at 130. In short,
Collins held “that the Constitution does not guarantee a right
to a safe workplace.” Jensen v. City of Oxnard, 145 F.3d
1078, 1083 (9th Cir. 1998).
3. Reconciling Collins and the State-Created Danger
Doctrine in Workplace Safety Cases
The threshold question before us is whether Plaintiffs’
claim under the state-created danger doctrine is foreclosed by
Collins. We conclude that it is not.
This conclusion is supported by the Collins decision
itself. The plaintiff in Collins did not allege a due process
claim under the state-created danger doctrine. Rather, she
alleged a general due process claim to a safe workplace,
alleging broadly “that the Federal Constitution imposes a duty
on the city to provide its employees with minimal levels of
safety and security in the workplace.” Collins, 503 U.S. at
126. In rejecting the plaintiff’s claim, the Court did not
address the state-created danger doctrine. Indeed, its
reasoning suggests that its decision might have been different
had the plaintiff alleged a specific state-created danger due
process claim. The Court explained that the plaintiff did “not
claim that the city or any of its agents deliberately harmed her
PAULUK V. SAVAGE 15
husband” and did “not even allege that [her husband’s]
supervisor instructed him to go into the sewer when the
supervisor knew or should have known that there was a
significant risk that he would be injured.” Id. at 125.
Recognizing Plaintiffs’ authority to bring a state-created
danger claim in this workplace safety case also accords with
the general rule under due process doctrine. The general rule
is that a state actor is not liable for his omissions or failure to
act. See Collins, 503 U.S. at 126; see also DeShaney,
489 U.S. at 196 (“[T]he Due Process Clauses generally confer
no affirmative right to governmental aid.”); Campbell,
671 F.3d at 842 (“It is well established that although the
Constitution protects a citizen’s liberty interest in her own
bodily security, the state’s failure to protect that interest does
not violate the Fourteenth Amendment.” (internal citation
omitted)). The state-created danger doctrine is a recognized
“exception” to this general rule. Patel, 648 F.3d at 972. In
holding that the government had no affirmative obligation to
provide a safe workplace, Collins appears to be an application
of this general rule. It follows that the exceptions to the
general rule, such as the state-created danger doctrine, should
also apply to workplace safety cases.
Support for this conclusion comes from Grubbs I, in
which we sustained a plaintiff’s state-created danger claim
even though it arose in the workplace. In Grubbs I, a case
decided six months after Collins, a registered nurse working
in an Oregon prison was raped by an inmate. The nurse
brought a § 1983 action against her supervisors, and we held
that she had stated a due process claim under the state-created
danger doctrine. Defendants had assigned the particular
inmate to work with the nurse even though they knew that
(1) the inmate had a history of violence against women and
16 PAULUK V. SAVAGE
was likely to assault a woman, (2) the nurse was likely to be
alone with the inmate during her rounds, and (3) the nurse
had not been informed at her hiring that she would be left
alone with violent offenders. Grubbs I, 974 F.2d at 121. We
distinguished Collins, writing that “[u]nlike Collins, [the
nurse] alleges that the Defendants took affirmative steps to
place her at significant risk.” Id. at 122. We rejected the
defendants’ contention that the nurse’s “status as a state
employee should bar her claim.” Id.
Other courts agree that Collins does not foreclose
application of the state-created danger exception in workplace
safety cases. See Hunt v. Sycamore Cmty. Sch. Dist. Bd. of
Educ., 542 F.3d 529, 537 (6th Cir. 2008) (noting that an
employee can prevail against his or her employer,
notwithstanding Collins, in state-created danger cases);
Kaucher v. County of Bucks, 455 F.3d 418, 424–25, 431 (3d
Cir. 2006) (treating plaintiffs’ state created danger doctrine
claim as separate and distinct from Collins); Ramos-Pinero v.
Puerto Rico, 453 F.3d 48, 55 n.9 (1st Cir. 2006) (assuming
the state-created danger doctrine could be a theory of liability
notwithstanding Collins, but rejecting plaintiffs’ claim on the
merits); Gormley, 93 A.3d at 362–63 (concluding that the
defendants were not entitled to qualified immunity, rejecting
the defendants’ reliance on Collins, and holding that the state-
created danger doctrine applied). But see Slaughter v. Mayor
& City Council of Baltimore, 682 F.3d 317, 321–23 (4th Cir.
2012) (holding that Collins barred a plaintiff’s claim against
a fire department, even though plaintiff raised a state-created
danger claim).
PAULUK V. SAVAGE 17
4. Applying the State-Created Danger Exception to the
Facts of This Case
To prevail on a state-created danger due process claim, a
plaintiff must show more than merely a failure to create or
maintain a safe work environment. First, a plaintiff must
show that the state engaged in “affirmative conduct” that
placed him or her in danger. Patel, 648 F.3d at 974. This
“affirmative conduct” requirement has several components.
A plaintiff must show not only that the defendant acted
“affirmatively,” but also that the affirmative conduct placed
him in a “worse position than that in which he would have
been had [the state] not acted at all.” Johnson, 474 F.3d at
641 (quoting DeShaney, 489 U.S. at 201); accord Kennedy,
439 F.3d at 1063. The affirmative act must have exposed the
plaintiff to “an actual, particularized danger,” Kennedy,
439 F.3d at 1063, and the resulting harm must have been
foreseeable, see Lawrence, 340 F.3d at 957. Second, the
state actor must have acted with “deliberate indifference” to
a “known or obvious danger.” Patel, 648 F.3d at 974
(quoting L.W. v. Grubbs (Grubbs II), 92 F.3d 894, 900 (9th
Cir. 1996)). “Deliberate indifference” requires a “culpable
mental state” more than “gross negligence.” Id.; see Grubbs
II, 92 F.3d at 898.
Plaintiffs’ evidence, if true, satisfies both elements of a
state-created danger claim. First, Pauluk’s 2003 transfer back
to Shadow Lane was “affirmative” conduct. Pauluk clearly
did not want to return to Shadow Lane and was transferred
“involuntarily.” There is sufficient evidence in the record
that either or both Wojcik and Savage were sufficiently
involved in the decision to transfer that a reasonable jury
could conclude they should bear some responsibility for that
transfer. Further, the 2003 transfer back to Shadow Lane
18 PAULUK V. SAVAGE
placed Pauluk in a “worse position” than before. Only after
the transfer did Pauluk begin to suffer from mold-related
health problems. The harm that Pauluk suffered was
foreseeable, as Pauluk had opposed the transfer specifically
on the ground that he feared he would become ill due to toxic
mold exposure.
Second, construing the facts in the light most favorable to
Plaintiffs, Wojcik and Savage acted with deliberate
indifference in exposing Pauluk to a known and obvious
danger. Plaintiffs presented evidence that Wojcik and Savage
were both aware of the CCHD’s long and tortured history of
pervasive mold problems in multiple buildings, including the
Shadow Lane facility. Plaintiffs’ evidence also suggests that
Wojcik and Savage were on notice of the potential health
problems associated with mold exposure, as Pauluk protested
his transfer on mold-related grounds and at least one other
employee working at Shadow Lane had previously suffered
harmful health effects from mold exposure. Further,
Plaintiffs presented evidence that Wojcik and Savage actively
tried to conceal the amount of, and danger posed by, the
mold. This evidence would support a reasonable jury’s
finding that Wojcik and Savage acted with deliberate
indifference toward the danger posed by toxic mold in
Shadow Lane to Pauluk’s health.
B. Clearly Established Law
Although we conclude that Plaintiffs presented sufficient
evidence to show a due process violation under the state-
created danger doctrine, qualified immunity shields Wojcik
and Savage from a § 1983 damages suit unless Pauluk’s due
process right was “clearly established at the time of the
violation.” Espinosa v. City & County of San Francisco,
PAULUK V. SAVAGE 19
598 F.3d 528, 532 (9th Cir. 2010). We conclude that the right
was not clearly established, and that Wojcik and Savage are
therefore entitled to qualified immunity.
Plaintiffs argue that Pauluk’s constitutional rights were
clearly established by our decisions in Wood and Grubbs I.
We easily conclude that Wood does not clearly establish the
due process right that Plaintiffs assert. As mentioned above,
in Wood we held that a police officer could be liable for a
rape that occurred after he abandoned the plaintiff in a high
crime area in the middle of the night. The core question in
this appeal is whether Collins bars the application of the
state-created danger doctrine in cases where the danger is a
physical condition in the workplace. Because Wood did not
involve a dangerous workplace, it does not speak to this
question.
Grubbs I presents a closer analogy to this case. However,
as recounted above, the danger in Grubbs I was a human
actor who posed a known threat. In contrast, Pauluk was not
harmed by a human agent, but rather by a physical condition
in the building where he worked. This case is factually very
similar to Collins, where, as here, the danger was a physical
danger in the workplace. For the reasons given above, we
conclude that Plaintiffs have stated a claim despite the fact
that Pauluk’s injury was caused by physical conditions in the
workplace. But, because the Supreme Court in Collins
declined to find a due process violation in a case with very
similar facts, we cannot say that Wojcik and Savage were “on
notice” that their conduct was unlawful under clearly
established law. Hope v. Pelzer, 536 U.S. 730, 739 (2002).
20 PAULUK V. SAVAGE
C. Remaining Monell Claim
The CCHD, a county agency, was not party to this
interlocutory appeal and remains a defendant. A county
agency is not entitled to qualified immunity and may be held
liable for constitutional violations by its employees under
Monell v. Department of Social Services, 436 U.S. 658
(1978), and related cases. We express no view on the
possible Monell liability of the CCHD under the state-created
danger doctrine, leaving that question to the district court in
the first instance.
Conclusion
We hold that the state-created danger doctrine is a viable
theory of due process liability under § 1983, even in
workplace environments. However, in light of the factual
similarity between this case and Collins, we hold that the
district court erred in denying qualified immunity to Wojcik
and Savage. We reverse and remand for further proceedings
consistent with this opinion.
REVERSED and REMANDED.
MURGUIA, Circuit Judge, concurring in part and dissenting
in part:
I fully agree with the opinion’s analysis as to the scope of
this 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 Wojcik and Savage. However, even accepting
PAULUK V. SAVAGE 21
as true the plaintiffs’ version of events, see Behrens v.
Pelletier, 516 U.S. 299, 313 (1996), I respectfully disagree
that the plaintiffs have presented a cognizable claim that
Wojcik and Savage affirmatively acted with deliberate
indifference to Pauluk’s substantive due process rights under
the state-created danger doctrine.1
I.
The state-created danger exception is a logical corollary
to the well-settled rule that the government has no general
duty under the Constitution to protect people from privately-
inflicted harm. In DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189 (1989), the
Supreme Court declared that “nothing in the language of the
Due Process Clause itself requires the State to protect the life,
liberty, and property of its citizens against invasion by private
actors,” id. at 195. In the same breath, however, the Court
also recognized that there may be circumstances in which the
government must provide protection because it “played [a]
part in the[] creation” of a dangerous situation or did
something “to render [an individual] more vulnerable to” a
pre-existing danger. Id. at 201. It is when “the state has
affirmatively placed the plaintiff” in harm’s way that a
1
I note at the outset that the constitutional issue on which I dissent is not
dispositive to this appeal, and I would not have reached it at
all—particularly in light of the fact that the liability of the entity who
appears the most responsible for the decedent’s injuries—the Clark
County Health District (“CCHD”)—remains outstanding. As a municipal
entity, the CCHD has no immunity under § 1983 and is not a party to this
appeal. See Owen v. City of Independence, 445 U.S. 622, 638 (1980).
CCHD’s potential liability under Monell is therefore not an issue that is
presently before us on interlocutory review from the district court’s denial
of qualified immunity to the individually named defendants.
22 PAULUK V. SAVAGE
reciprocal duty to protect may attach. Ketchum v. Alameda
County, 811 F.2d 1243, 1247 (9th Cir. 1987) (emphasis
added).
But inherent in our characterization of the state-created
danger doctrine as an “exception” to the ordinary rule, see
Patel v. Kent Sch. Dist., 648 F.3d 965, 972 (9th Cir. 2001), is
the principle that the government does not violate the
Constitution “whenever someone cloaked with state authority
causes harm,” County of Sacramento v. Lewis, 523 U.S. 833,
848 (1998). The substantive component of the Due Process
Clause only prevents the state from engaging in conduct
“intended to injure in some way unjustifiable by any
government interest.” Id. at 849. “[O]nly the most egregious
official conduct” crosses the constitutional line so as to
constitute a deprivation of due process. Id. at 846. To this
end, we have made clear that gross negligence on the part of
the government actor is not enough. Patel, 648 F.3d at 974;
L.W. v. Grubbs (“Grubbs II”), 92 F.3d 894, 900 (9th Cir.
1996); see also Lewis, 523 U.S. at 849 (“[L]iability for
negligently inflicted harm is categorically beneath the
threshold of constitutional due process.”). As the opinion
observes, an individual can recover on a § 1983 claim under
the state-created danger doctrine only by showing that the
state officials in question acted with “deliberate indifference”
to a “known or obvious danger” that they had an affirmative
role in subjecting the plaintiff to. Patel, 648 F.3d at 974;
Grubbs II, 92 F.3d at 900.
As my concurring colleague notes, Collins v. City of
Harker Heights, 503 U.S. 115 (1992), on which defendants
primarily rely, does not itself speak to the scope of the state-
created danger doctrine. Nevertheless, it is easy to situate its
holding within the aforementioned framework. In Collins,
PAULUK V. SAVAGE 23
the Supreme Court applied the general rule that state actors
are liable only for actions that violate constitutional rights,
not omissions, and concluded that the Due Process Clause
does not impose a free-standing duty upon a municipality to
provide its employees with certain minimal working
conditions.2 503 U.S. at 125–30; cf. Deshaney, 489 U.S. at
195 (“The [Due Process] Clause is phrased as a limitation on
the State’s power to act, not as a guarantee of certain minimal
levels of safety and security.”). At the same time, however,
nothing in Collins abrogated the Constitution’s guarantee of
freedom from unreasonable state-created dangers. In other
words, public employees—like any citizen—can recover
under the state-created danger doctrine for workplace injuries
that are severe enough to offend due process—provided, of
course, that the employee shows that a state official
affirmatively created the unsafe working environment and
acted with the requisite deliberate indifference in subjecting
the employee to that workspace. See, e.g., L.W. v. Grubbs
(“Grubbs I”), 974 F.2d 119, 122 (9th Cir. 1992) (finding
2
The plaintiff in Collins had brought suit after her husband, a city
employee within the sanitation department, died of asphyxia in a manhole
where he was fixing a sewer line. 503 U.S. at 117. The employee’s
widow alleged that the city had violated the decedent’s liberty interest by
failing to train its employees about the dangers of working in sewer lines
and manholes or provide adequate safety equipment at job sites. Id. The
Collins Court firmly rejected the plaintiff’s theory of liability, concluding
that nothing in the Constitution imposes a duty on municipal entities to
provide a reasonably safe work environment for its employees. Id. at 126.
Nor did the city’s purported failure to train or warn its employees amount
to an omission that the Supreme Court believed could be properly
characterized as arbitrary or conscience-shocking in the substantive-due-
process sense. Id. at 128. In no uncertain terms, the Supreme Court held
that “[t]he Due Process Clause . . . does [not] guarantee municipal
employees a workplace that is free of unreasonable risks of harm.” Id. at
129.
24 PAULUK V. SAVAGE
nurse’s status as prison employee did not bar her § 1983
claim after she was raped by a violent sex offender after
being assigned to work alone in the medical clinic with him).
With these principles in mind, I turn to the issue on which
I diverge from the opinion: whether two municipal
supervisors violated a federal constitutional obligation after
an employee died from a generalized exposure to toxic mold.
II.
As noted above, the state-created danger doctrine requires
affirmative action by state officers; the state’s failure to
protect an individual from an unsafe environment does not
give rise to liability under the state-created danger doctrine.
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir.
2006). We have clarified that “affirmative conduct” means
that the state’s actions must have placed the plaintiff in a
“worse position than that in which he would have been had it
not acted at all.” Johnson v. City of Seattle, 474 F.3d 634, 641
(9th Cir. 2007) (quoting DeShaney, 489 U.S. at 201); see also
Kennedy, 439 F.3d at 1062 (“[W]e examine whether the
[official] left the person in a situation that was more
dangerous than the one in which they found him.” (citation
omitted)). In the context of this case, I believe that there are
two reasons why the plaintiffs’ allegations fail to satisfy this
standard—one factual, one jurisprudential.
A.
First, the universe of evidence from the summary
judgment record that a reasonable jury could attribute to
Wojcik and Savage is scant. Accepting the plaintiffs’ version
of events as true, as we must at this interlocutory stage,
PAULUK V. SAVAGE 25
Pauluk was a veteran employee of the CCHD who died after
being exposed to toxic mold at Shadow Lane, where he was
reassigned over his objections in 2003. It is undisputed that
Shadow Lane suffered from structural deficiencies in the
building that let in rainwater.
During his tenure there, Pauluk repeatedly complained
about mold to the intermediate supervisors in his chain of
command, which included the defendants Wojcik and
Savage, both of whom also worked at Shadow Lane.
Specifically, Pauluk requested to transfer out of Shadow Lane
or to move desks within the building. Whenever Pauluk
would make such a request, it would be sent to his immediate
boss and then “funnel[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[s]” when making a transfer request. All of Pauluk’s
transfer requests were ultimately denied. Savage was told
that transferring Pauluk would result in “chaos to the overall
business of the Health District” and that Pauluk’s position
involved a “main office function”—the main CCHD office
being the Shadow Lane facility. Nevertheless, in 2003, in
response to Pauluk’s concerns, ceiling tiles were removed and
tested for mold. Savage also assisted Pauluk in 2004 with
taking photographs of suspected mold growth and forwarding
it to the administration, and Wojcik sent an e-mail to his
chain of command seeking to have the materials gathered by
Savage and Pauluk tested. As a result of their efforts,
maintenance staff removed and replaced four stained ceiling
tiles and one fluorescent lens near Pauluk’s work station. In
the end, however, Pauluk left Shadow Lane in October 2005
due to medical problems associated with “[t]oxic mold
exposure.” Unfortunately, Pauluk’s health continued to
deteriorate and he died in 2007.
26 PAULUK V. SAVAGE
The family’s primary contention is that Wojcik and
Savage failed to protect Pauluk from exposure to mold by not
transferring him away from Shadow Lane. But keeping
Pauluk at a facility that was infested with mold is not
“affirmative action.” See Kennedy, 439 F.3d at 1062 (“In
examining whether an officer affirmatively places an
individual in danger . . . we examine whether the officer[] left
the person in a situation that was more dangerous than the
one in which they found him.”). The family also argues that
Wojcik and Savage acted affirmatively by denying Pauluk’s
requests to transfer. However, these actions fail the “no
worse position” test too: regardless of whether defendants
denied Pauluk’s requests or simply ignored them, Pauluk
would have remained in the same position—purportedly
being exposed to toxic mold at Shadow Lane. See Johnson,
474 F.3d at 641 (concluding that city’s decision to switch
from a more effective crowd-control procedure to a less
effective plan was not “affirmative action,” precluding
liability to plaintiffs who were injured during a riot at a Mardi
Gras celebration).
The opinion nevertheless concludes that Wojcik and
Savage’s decision to transfer Pauluk back to the Savage Lane
facility in 2003 constitutes the requisite affirmative action.
But in opposition to the defendants’ motion for summary
judgment, plaintiffs insisted that CCHD exposed Pauluk to
mold on two other occasions prior to 2003—in 1998 and
2000. See Plaintiffs’ Opposition to Defendants’ Motion for
Summary Judgment, Pauluk v. Savage, No. 07-CV-1681 at
*10 (D. Nev. Oct. 7, 2013), ECF No. 131 (“[T]he record
evidence shows CCHD affirmatively placed Dan Pauluk in
harms way on no less than three (3) occasions—in 1998,
2000 and 2003—then the Defendants have failed to meet
their burden on summary judgment in that the Defendants
PAULUK V. SAVAGE 27
affirmatively and with deliberate-indifference engaged in
conscience-shocking conduct.”). If Pauluk’s risk of illness
from mold exposure pre-dated his 2003 reassignment to
Shadow Lane, then Wojcik and Savage could not have placed
Pauluk in any worse of a position than if he had never been
transferred. Therefore, even reading the record in the light
most favorable to the plaintiffs, plaintiffs’ claim fails as a
matter of law because, after the 2003 transfer, Pauluk was in
“no worse position” than before. See Johnson, 474 F.3d at
641.
B.
I further disagree that moving Pauluk back to Savage
Lane amounts to “affirmative action” in the constitutional
sense. The previous circumstances in which this court has
grappled with the state-created danger doctrine do not
remotely resemble the facts of this case. Every instance in
which we have permitted a state-created danger theory to
proceed has involved an act by a government official that
created an obvious, immediate, and “particularized danger”
to a specific person known to that official. See Kennedy,
439 F.3d at 1067 (explaining that “affirmative action”
requires the state actor to “create[] an actual, particularized
danger [the injured party] would not otherwise have faced”).
We have also extended the doctrine only to encompass claims
in which the official’s act caused the harm, as opposed to
merely increasing a risk to the plaintiff.
In this circuit, the state-created danger doctrine begins
with Wood v. Ostrander, in which the court held that police
officers who had stranded a woman in a high crime area at
2:30 in the morning could be liable under § 1983 after the
woman was sexually assaulted. 879 F.2d at 588–90.
28 PAULUK V. SAVAGE
Similarly, in Penilla v. City of Huntington Park, we denied
qualified immunity to officers who had responded to a 911
call, found Penilla to be in grave need of medical care, and
yet canceled the request for paramedics, broke the lock and
door jamb on the front door of Penilla’s residence, moved
him inside the house, locked the door, and left him to die.
115 F.3d 707, 708 (9th Cir. 1997). And, in Munger v. City of
Glasgow, we found evidence of affirmative action by the state
where police officers ejected an intoxicated patron from a bar
wearing only a t-shirt and jeans in sub-freezing temperatures;
the patron died from hypothermia. 227 F.3d 1082, 1087 (9th
Cir. 2000).
In Kennedy v. City of Ridgefield, we likewise affirmed the
denial of qualified immunity to a police officer who had
informed the plaintiff’s neighbor—an individual with known
violent tendencies and against whom the plaintiff had made
allegations of child abuse—that he was being investigated for
molesting the plaintiff’s daughter. 439 F.3d at 1057, 1067.
The officer had promised to warn the plaintiff before
approaching her neighbor, and assured her that police would
patrol her neighborhood. Id. at 1058. The neighbor later
broke into the plaintiff’s house and shot her and her husband
while they were sleeping. Id. at 1058. The Kennedy court
explained that the officer had “affirmatively created an actual,
particularized danger [the family] would not otherwise have
faced” by confronting the suspect without notifying the
Kennedy family as promised. Id. at 1063.
Kennedy relied substantially on our’s holding in Grubbs
I, in which we found that a nurse in a medium-security
correctional institution had stated a claim under the
Fourteenth Amendment after an inmate with known violent
propensities raped and terrorized her. Grubbs I, 974 F.2d at
PAULUK V. SAVAGE 29
120–22. State officials had assigned the inmate to work in
the medical clinic with the plaintiff and had failed to inform
her that she would be left alone with violent sex offenders.
Id. at 120. The Grubbs I court concluded that the plaintiff
had adequately alleged that the defendants’ acts had
“independently created the opportunity for and facilitated [the
inmate’s] assault on her” and allowed her claim to proceed to
trial. Id. at 122. The court emphasized that, in assigning the
inmate to work with the plaintiff while also misrepresenting
the risks attending to the plaintiff’s work, the defendants had
created the danger by preventing the plaintiff from defending
herself or averting an attack.3 Id. at 122.
The common elements in all of these cases that justified
our imposing liability were the acuteness of the danger to the
plaintiff, the temporal proximity between the official’s act
and the injury, and the clear traceability of the injury to the
official’s conduct. The facts here are markedly different: the
plaintiffs have alleged that Wojcik and Savage violated
Pauluk’s constitutional rights by moving him into a municipal
building where he was exposed to toxic mold over the course
of several years—along with countless other employees,
including the defendants. Wojcik and Savage’s decision to
reassign Pauluk more closely resembles the cases in which
this court has declined to find a cognizable due process
violation due to the unforeseeable nature of the plaintiffs’
injuries and the fact that the danger facing the plaintiff
3
The court never had to evaluate the qualified immunity question in
Grubbs, which came to the court on an appeal from a motion to dismiss.
Following a trial, however, the jury found that the supervisor who was
responsible for creating the danger to the plaintiff had acted only with
gross negligence, but not with the deliberate indifference necessary to
sustain liability. Grubbs II, 92 F.3d at 895.
30 PAULUK V. SAVAGE
existed independent of state action. See, e.g., Patel, 648 F.3d
at 976 (holding no rational fact finder could conclude that a
teacher acted with deliberate indifference to her student’s
well-being because the teacher “did not know there was any
immediate danger in allowing [the plaintiff] to briefly use the
next-door bathroom alone”); Huffman v. County of Los
Angeles, 147 F.3d 1054, 1061 (9th Cir. 1998) (finding no
liability where an individual was shot during a barroom brawl
by an off-duty deputy on the grounds that the injury was an
unforeseeable consequence of a county policy requiring off-
duty officers to carry a firearm); see also Lawrence v. United
States, 340 F.3d 952, 957 (9th Cir. 2003) (“[I]n each of the
cases in which we have applied the danger-creation
exception, ultimate injury to the plaintiff was foreseeable.”).
The link between the challenged conduct and Pauluk’s
untimely death is simply too attenuated to support Wojcik
and Savage’s liability.
III.
In addition to showing affirmative conduct, the family
must also show that the defendants acted with “deliberate
indifference” to Pauluk’s health and safety. We have
repeatedly affirmed that the standard for deliberate
indifference is demanding; it requires a showing that the
“defendant recognizes the unreasonable risk and actually
intends to expose the plaintiff to such risks without regard to
the consequences to the plaintiff.” Grubbs II, 92 F.3d at 899
(citation omitted); see also Patel, 648 F.3d at 974
(“Deliberate indifference is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.” (internal quotation marks
omitted)). The defendant is liable if he “knows that
PAULUK V. SAVAGE 31
something is going to happen but ignores the risk.” Grubbs
II, 92 F.3d at 900 (first emphasis added).
The opinion concludes that the deliberate indifference
requirement is satisfied because Wojcik and Savage were
aware that the CCHD had a history of pervasive mold
problems throughout multiple buildings, and that Shadow
Lane suffered from water damage. There is some evidence
that one other employee working in Shadow Lane suffered
from the ill-effects of mold exposure before Pauluk was
transferred back to the facility.
I disagree that these facts, alone, demonstrate Wojcik and
Savage’s deliberate indifference to any danger Pauluk was
exposed to at Shadow Lane. In Penilla, by contrast, the
officers knew Penilla was in grave condition and required
prompt medical attention, yet they did the opposite of what a
reasonable person would expect them to do. In fact, the
officers made the situation worse by calling off medical
assistance already en route. Penilla, 115 F.3d at 708.
Kennedy and Grubbs both concerned circumstances in which
the government official actively concealed a known risk of
harm from the plaintiff. Here, at most, Wojcik and Savage
knew that a workplace free of mold was preferable to one
with mold, but do not appear to have been aware that moving
Pauluk to a contaminated building would cause him to
become deathly ill.4 See Patel, 648 F.3d at 975–76 (refusing
to find liability where extent of the risks were unknown to the
defendant). Further, the family admits that Savage “assist[ed]
Pauluk” in his attempts to report the mold problems by
“removing ceiling tiles, looking above the ceiling tiles and
4
The opinion’s assertion that Wojcik and Savage actively tried to
conceal the existence of mold is not supported by the record.
32 PAULUK V. SAVAGE
taking photographs in the area where Pauluk’s desk was
locat[ed].” This indicates that Savage was sensitive to
Pauluk’s complaints and wanted them to be resolved. Wojcik
demonstrated similar sympathy towards seeing Pauluk’s
concerns addressed. Without the requisite mental state, there
can be no constitutional violation premised on state-created
danger.
IV.
As in all state-created danger cases, the facts before us are
undeniably tragic. But the Fourteenth Amendment is not a
panacea for all wrongs. The Supreme Court “has always
been reluctant to expand the concept of substantive due
process,” and the Fourteenth Amendment “does not purport
to supplant traditional tort law in laying down rules of
conduct to regulate liability for injuries that attend living
together in society.” Collins, 503 U.S. at 125, 128; see also
Lewis, 523 U.S. at 848 (“[T]he Fourteenth Amendment is not
a ‘font of tort law to be superimposed upon whatever systems
may already be administered by the States.’”). To the extent
Pauluk has a remedy, I believe it is properly found under
Nevada state law. See Patel, 648 F.3d at 976 (“Whatever
liability [the defendant] may face, that liability must come
from state tort law, not the Fourteenth Amendment.”).
Because I cannot join my esteemed colleagues in their
sweeping holding that the facts alleged establish a Fourteenth
Amendment violation by Wojcik and Savage, I respectfully
dissent from that portion of the opinion.
PAULUK V. SAVAGE 33
NOONAN, Circuit Judge, dissenting:
Today, the majority holds that the state-created danger
doctrine—a theory of constitutional harm whose contours
have been “clearly established” by at least nine published
opinions of this court over the course of two decades—is no
longer sufficiently “clear” in light of a single case which
addresses an unrelated legal theory. I respectfully dissent.
I.
In this circuit, the state-created danger doctrine begins
with Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989). In
Wood, a police officer arrested an intoxicated driver,
impounded the vehicle, and refused the passenger’s request
for a ride, leaving her stranded late at night in a high crime
area. Id. at 586. On her walk home, she accepted a ride from
a stranger, who ultimately took her to a secluded area and
raped her. Id. On these facts, this court held that the plaintiff
raised a triable issue as to whether the officer’s conduct
“affirmatively placed the plaintiff in a position of danger.” Id.
at 589–90. The court reasoned that while the officer did not
assault Wood himself, he acted “in callous disregard for [her]
safety” by exposing her to a known and “inherent danger.” Id.
Wood and the cases that follow have emphasized that in order
for liability to attach under the state-created danger doctrine,
the state actor must knowingly create “an actual,
particularized danger.” Kennedy v. City of Ridgefield,
439 F.3d 1055, 1063 (9th Cir. 2006). However, the facts of
these cases make clear that the state’s actions need not be the
only but-for cause of the ultimate harm, and that its
foreseeability need not be certain to be actionable.
34 PAULUK V. SAVAGE
Indeed, in Wood, it was far from certain that the plaintiff
would be accosted on her way home; furthermore, her
decision to accept a ride from a stranger in a high-crime area
was an intervening act that was an independent cause of the
harm she sustained. Yet this court had no trouble concluding
that the causal nexus between the officer’s conduct and the
harm endured was sufficiently close to warrant holding the
state liable, characterizing it as “a matter of common sense.”
Wood, 879 F.2d at 590.
In Kennedy, an officer was called upon to investigate an
allegation made by Jay and Kimberly Kennedy that their
thirteen year-old neighbor, Michael Burns, had molested their
daughter. 439 F.3d 1055, 1057 (9th Cir. 2006). Kimberly
informed the officer that she believed Burns was violent and
lived in an unstable household. Id. at 1057–58. In response,
the officer assured her that she would be given notice prior to
any police contact with Burns. Id. at 1058. A few weeks later,
the officer drove to Burns’ house and informed him of the
molestation allegations made by the Kennedys, and
immediately after, drove to the Kennedy house to update
them on the situation. When Kimberly expressed her
displeasure with the officer for failing to provide her with
advance notice of his contact with Burns as he had promised,
the officer assured her that the police would patrol the area
and “keep an eye” on Burns. Id. The police never conducted
the promised patrol. The next morning, Burns broke into the
Kennedys’ home and shot them in their sleep, killing Jay and
severely wounding Kimberly. Id. at 1057.
While Burns “had a predilection for violence,” id. at
1064, it was by no means certainly foreseeable that even a
violent thirteen year-old could commit such a heinous act.
However, in affirming the denial of qualified immunity to the
PAULUK V. SAVAGE 35
officer, this court clarified that “for a danger to exist, the
exact injury inflicted by a third party [need not] have been
foreseeable”; rather, liability attaches where the state actor
places a plaintiff “in a situation more dangerous than the one
she already faced.” Id. at 1064 n.5; see also Munger v. City of
Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000).
In the case at bar, the facts as alleged state that defendants
had full knowledge of the mold problem at Shadow Lane in
2003 when, over Pauluk’s objections, it transferred him there.
Pauluk was therefore willfully exposed to a mold spore
infestation, and all its attendant health risks, with every breath
he took. It would be a cruel irony to hold that a harm that
strikes at the very heart of a state agency’s core competency
is not sufficiently “particularized” or “foreseeable” to it for
purposes of the state-created danger doctrine. Indeed, the
harms suffered in Wood and Kennedy were arguably more
attenuated than what Pauluk faced. In those cases, the
officers’ conduct only created an increased probability of
harm to the plaintiffs; conversely, it was certain that Pauluk
would suffer at least some harm due to the inevitable
inhalation of mold.
No basis exists to distinguish this case from Wood,
Kennedy, or any other published opinion of this court
upholding the applicability of the state-created danger
doctrine. I would affirm the district court’s denial of
summary judgment. I therefore concur with the majority’s
conclusion that, viewing the facts in the light most favorable
to plaintiffs, they have shown a violation of the Fourteenth
Amendment under the state created danger doctrine.
36 PAULUK V. SAVAGE
II.
In Collins v. City of Harker Heights, Tex., the plaintiff’s
deceased spouse, an employee of a municipal sanitation
department, died from asphyxiating on noxious fumes after
entering a manhole to fix a sewer line. 503 U.S. 115, 117
(1992). Collins brought suit under 42 U.S.C. § 1983, alleging
that the City violated the substantive Due Process Clause of
the Fourteenth Amendment by failing to maintain a minimal
level of workplace safety. The Supreme Court rejected this
argument, holding that the Fourteenth Amendment does not
encompass a generalized duty to “provide [government]
employees with minimal levels of safety and security in the
workplace.” Id. at 126.
While Collins and Pauluk both died from inhaling
poisonous air in the workplace, the similarity between their
cases ends there. Indeed, Collins does not ever discuss the
state-created danger doctrine—the theory upon which
Pauluk’s entire case hinges. To hold that Collins defines the
contours of a doctrine that it does not even mention would
expand its holding far beyond what the Court could have
reasonably intended.
The Collins Court emphasized that the plaintiff “does not
claim that the city or any of its agents deliberately harmed her
husband. In fact, she does not even allege that his supervisor
instructed him to go into the sewer when the supervisor knew
or should have known that there was a significant risk that he
would be injured.” Id. at 125. Pauluk’s case therefore presents
the precise facts that the Collins Court deemed were
inapplicable to its analysis and holding. Accordingly, Collins
does not counsel against affirming the district court here.
Indeed, the majority appears to concede that Collins is
PAULUK V. SAVAGE 37
distinguishable, but concludes that even assuming Pauluk has
stated a 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 was
unlawful under clearly established law.” Majority Op. at 19.
The law governing the state-created danger doctrine is
“clearly established” by the controlling precedent discussed
above such that “any reasonable official in [defendants’]
shoes would have understood that [they were] violating it.”
City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765 (2015)
(citations omitted). Indeed, in light of these cases, the
constitutional question has been “placed. . .beyond debate.”
Id. A case which presents some factual similarities but lacks
any legal nexus to the state-created danger doctrine cannot
revive that debate, nor can it serve to convolute what this
court has defined with pellucid clarity. Collins does not
control here. Accordingly, I dissent.