Patricia Polanco v. Ralph Diaz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PATRICIA POLANCO; VINCENT No. 22-15496
POLANCO; SELENA POLANCO;
GILBERT POLANCO, Deceased, D.C. No. 3:21-
cv-06516-CRB
Plaintiffs-Appellees,
v.
OPINION
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.
2 POLANCO V. DIAZ

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding

Argued and Submitted March 8, 2023
San Francisco, California

Filed August 7, 2023

Before: Michelle T. Friedland and Ryan D. Nelson, Circuit
Judges, and Kathleen Cardone, * District Judge.

Opinion by Judge Friedland;
Dissent by Judge R. Nelson

SUMMARY **

Civil Rights/State-Created Danger/COVID-19

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.

*
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 POLANCO V. DIAZ 3

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
4 POLANCO V. DIAZ

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.
Dissenting, Judge R. Nelson would hold that defendants
were entitled to qualified immunity because no clearly
established law placed defendants on notice that their alleged
mismanagement of the COVID-19 pandemic at San Quentin
prison was unconstitutional. Contrary to Supreme Court
guidance, the majority employed a high level of generality
to determine that the law was clearly established.

COUNSEL

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.
 POLANCO V. DIAZ 5

OPINION

FRIEDLAND, Circuit Judge:

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.
I.
A.
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

1
In an appeal of a denial of qualified immunity at the motion to dismiss
stage, we accept as true all well-pleaded allegations in the Complaint.
See Padilla v. Yoo, 678 F.3d 748, 757 (9th Cir. 2012).
6 POLANCO V. DIAZ

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
 POLANCO V. DIAZ 7

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

2
In response to a class action, the United States District Court for the
Northern District of California held in 2005 that the medical services in
California prisons failed to meet the constitutional minimum. See Plata
v. Schwarzenegger, No. C01-1351, 2005 WL 2932253, at *1 (N.D. Cal.
Oct. 3, 2005). It accordingly appointed a receiver tasked with
establishing a constitutionally adequate medical system. See id.
8 POLANCO V. DIAZ

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.
That one guard was Sergeant Gilbert Polanco. At the
time of the transfer, Polanco was fifty-five years old and had
worked at San Quentin for more than two decades. Polanco
had multiple health conditions that put him at high risk of
mortality if he were to contract COVID-19, including
obesity, diabetes, and hypertension. During the pandemic,
one of his duties was to drive sick inmates—including those
with COVID-19—to local hospitals. On those trips,
Defendants refused to provide Polanco (or the inmates he
was driving) with personal protective equipment.
 POLANCO V. DIAZ 9

In late June, Polanco contracted COVID-19. By July, his
condition had worsened, and he was admitted to the hospital.
He died of complications caused by COVID-19 in August.
C.
Polanco’s wife and children (collectively, “Plaintiffs”)
sued Defendants under 42 U.S.C. § 1983 in the United States
District Court for the Northern District of California. Their
Complaint alleges that Defendants violated Polanco’s
substantive due process rights by affirmatively, and with
deliberate indifference, placing him in danger. It also alleges
that Defendants violated Plaintiffs’ substantive due process
rights to familial association. 3
Defendants moved to dismiss, arguing, among other
things, that they are entitled to qualified immunity on
Plaintiffs’ constitutional claims. The district court rejected
that argument, holding that Defendants are not entitled to
qualified immunity on the face of the Complaint.4
Defendants timely appealed the district court’s denial of
qualified immunity.
II.
We have jurisdiction under the collateral order doctrine
to review a district court’s rejection of a qualified immunity
defense at the motion to dismiss stage, Ashcroft v. Iqbal, 556
U.S. 662, 671–72 (2009), and we review such a denial de
novo, Hernandez v. City of San Jose, 897 F.3d 1125, 1131–

3
The Complaint also alleges various statutory and common law claims
that are not at issue in this appeal.
4
Plaintiffs also asserted claims against some high-level officials from
CIM. The district court granted the motion to dismiss with respect to
those defendants. That aspect of the district court’s order is not at issue
in this appeal.
10 POLANCO V. DIAZ

32 (9th Cir. 2018). When engaging in such review, we
“accept[] as true all well-pleaded allegations” and
“construe[] them in the light most favorable to the non-
moving party.” Id. at 1132 (quoting Padilla v. Yoo, 678 F.3d
748, 757 (9th Cir. 2012)).
III.
We must affirm the district court’s denial of qualified
immunity if, accepting all of Plaintiffs’ allegations as true,
Defendants’ conduct “(1) violated a constitutional right that
(2) was clearly established at the time of the violation.”
Ballou v. McElvain, 29 F.4th 413, 421 (9th Cir. 2022). At
the motion to dismiss stage, “dismissal is not appropriate
unless we can determine, based on the complaint itself, that
qualified immunity applies.” O’Brien v. Welty, 818 F.3d
920, 936 (9th Cir. 2016) (quoting Groten v. California, 251
F.3d 844, 851 (9th Cir. 2001)). Based on the Complaint
here, we hold that Defendants are not entitled to qualified
immunity.
A.
Plaintiffs sufficiently allege a violation of Polanco’s due
process right to be free from a state-created danger.
The Fourteenth Amendment’s mandate that “[n]o State
shall . . . deprive any person of life, liberty, or property,
without due process of law” confers both procedural and
substantive rights. DeShaney v. Winnebago Cnty. Dep’t of
Soc. Servs., 489 U.S. 189, 194–95 (1989) (alterations in
original) (quoting U.S. Const. amend. XIV). The
substantive component of that clause “protects individual
liberty against ‘certain government actions regardless of the
fairness of the procedures used to implement them.’”
Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)
 POLANCO V. DIAZ 11

(quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).
The Due Process Clause does not “impose an affirmative
obligation on the State” to protect a person’s life, liberty, or
property; it acts as a “limitation on the State’s power to act”
rather than a “guarantee of certain minimal levels of safety
and security.” DeShaney, 489 U.S. at 195. The “general
rule,” then, is that “a state actor is not liable under the Due
Process Clause ‘for its omissions.’” Pauluk v. Savage, 836
F.3d 1117, 1122 (9th Cir. 2016) (quoting Munger v. City of
Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000)).
But there are exceptions to this general rule. See id. As
relevant here, under the state-created-danger doctrine, state
actors may be liable “for their roles in creating or exposing
individuals to danger they otherwise would not have faced.”
Id. (quoting Kennedy v. City of Ridgefield, 439 F.3d 1055,
1062 (9th Cir. 2006)). In the context of public employment,
although state employers have no constitutional duty to
provide their employees with a safe working environment,
see Collins, 503 U.S. at 126, the state-created-danger
doctrine holds them liable when they affirmatively, and with
deliberate indifference, create or expose their employees to
a dangerous working environment. We have recognized, for
instance, that a state employer can be liable under the state-
created-danger doctrine for knowingly assigning an
employee to work in a building infected with toxic mold, see
Pauluk, 836 F.3d at 1125, or for requiring a prison employee
to work alone with an inmate likely to cause her serious
harm, see L.W. v. Grubbs, 974 F.2d 119, 123 (9th Cir. 1992).
To state a due process claim under the state-created-
danger doctrine, a plaintiff must first allege “affirmative
conduct on the part of the state,” Patel v. Kent Sch. Dist., 648
F.3d 965, 974 (9th Cir. 2011) (quoting Munger, 227 F.3d at
1086), that exposed him to “an actual, particularized danger
12 POLANCO V. DIAZ

that [he] would not otherwise have faced,” Martinez v. City
of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). Second, a
plaintiff must allege that the state official acted with
“deliberate indifference” to that “known or obvious danger.”
Id. (quoting Patel, 648 F.3d at 971–72).
1.
Plaintiffs’ allegations satisfy the first requirement, which
has several components. The state must have taken actions
that placed the plaintiff in a “worse position” than he would
have been in “had [the state] not acted at all.” Pauluk, 836
F.3d at 1124 (alteration in original) (quoting Johnson v. City
of Seattle, 474 F.3d 634, 641 (9th Cir. 2007)). The act must
have exposed the plaintiff to an “actual, particularized
danger,” and the resulting harm must have been foreseeable.
Id. at 1125 (quoting Kennedy, 439 F.3d at 1063).
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. 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
 POLANCO V. DIAZ 13

paint a clear picture: San Quentin had managed to keep
COVID-19 out, but Defendants brought it in. 5
So too was the danger “particularized.” Affirmative
state action that exposes a broad swath of the public to
“generalized dangers” cannot support a state-created-danger
claim. See Sinclair v. City of Seattle, 61 F.4th 674, 676, 683
(9th Cir. 2023) (holding that the plaintiff had not alleged a
state-created-danger claim because “the City-created danger
was a generalized danger experienced by all those members
of the public who chose to visit” a certain part of the city).
But a danger can be “particularized” even if it is directed
toward a group rather than an individual. See Hernandez,
897 F.3d at 1133 (holding that the danger to which the state
exposed a group of protesters was sufficiently particularized
to support a state-created-danger claim). The danger here
falls into the latter category because the transfer exposed a
“discrete and identifiable group”—prison guards and
inmates at San Quentin—to the dangers of COVID-19. See
Sinclair, 61 F.4th at 683.
Finally, the danger to which Polanco was exposed was
sufficiently severe to raise constitutional concerns.
Although our precedent has not elaborated on the level of
harm required to sustain a state-created-danger claim, it has
been implicit in our cases that not any risk will do—the harm
must be severe enough to constitute a “danger.” See, e.g.,
Grubbs, 974 F.2d at 120 (assault, battery, kidnapping, and
rape); Kennedy, 439 F.3d at 1058 (murder); Pauluk, 836

5
As alleged in the Complaint, each Defendant was involved in the
administrative decisions underlying the due process claim. We
accordingly reject Defendants’ argument that some Defendants are
entitled to qualified immunity because of their status as “medical
officials.”
14 POLANCO V. DIAZ

F.3d at 1120 (serious illness leading to death); Hernandez,
897 F.3d at 1130 (assault and battery resulting in serious
injuries); Martinez, 943 F.3d at 1269 (physical and sexual
violence). We do not attempt to delimit here the range of
harms that count, but we are confident that exposure to
COVID-19, at least in a pre-vaccine world, does.
Defendants respond that they cannot be held responsible
for Polanco’s death, because “[g]uards are free to refuse to
work in a prison.” In Defendants’ view, Polanco assumed
the risk of COVID-19 exposure by accepting—and not
quitting—his job as a corrections officer. But that argument
runs headlong into Pauluk, in which we held that a public
employer’s deliberately indifferent transfer of an employee
to an office building infected with toxic mold would be a
constitutional violation even if the employee was aware of
the mold and presumably could have quit his job when he
learned of the transfer. See 836 F.3d at 1125. If the
employee’s ability to leave his post did not defeat the
constitutional claim in Pauluk, it cannot defeat the claim
here. 6

6
Defendants rely on a Third Circuit case that suggested in dicta that
public employees’ freedom to leave their jobs may limit the scenarios in
which employees can bring claims under the state-created-danger
doctrine to those involving “deliberate misrepresentations” by their
public employer about the level of danger. See Kaucher v. County of
Bucks, 455 F.3d 418, 430 (3d Cir. 2006). But the Third Circuit has since
refrained from embracing that dicta, describing Kaucher as standing for
the proposition that “a government employee may bring a substantive
due process claim against his employer if the state compelled the
employee to be exposed to a risk of harm not inherent in the workplace.”
Kedra v. Schroeter, 876 F.3d 424, 436 n.6 (3d Cir. 2017). That
description of the state-created-danger doctrine aligns with the doctrine
in our circuit.
 POLANCO V. DIAZ 15

2.
Plaintiffs’ allegations also satisfy the “deliberate
indifference” requirement. In the context of a state-created-
danger claim, deliberate indifference is a subjective standard
that requires a plaintiff to allege facts supporting an
inference that the official “recognized an unreasonable risk
and actually intended to expose the plaintiff to such risk.”
Herrera v. L.A. Unified Sch. Dist., 18 F.4th 1156, 1160–61
(9th Cir. 2021). 7
The Complaint alleges that Defendants were aware of the
danger that transferring potentially COVID-positive inmates
to San Quentin would pose to San Quentin’s employees. By
the time of the transfer, state and local governments had
enacted a range of emergency health measures designed to
prevent the spread of COVID-19, including requirements to
mask when interacting with individuals outside one’s
household. As Plaintiffs allege, by May 2020, anyone in
California “vaguely paying attention” to the news would
have understood that COVID-19 was “highly contagious”
and “potentially deadly” and would have been aware of the
basic rules to prevent its spread, such as limiting contact with
people outside one’s household, social-distancing, wearing
masks, quarantining after exposure, and testing. In addition,
California Correctional Health Care Services had opposed
transfers between prisons because of the “significant risk” of

7
In a different context, we held that the requisite mental state for a
Fourteenth Amendment due process claim is an objective form of
deliberate indifference. See Castro v. County of Los Angeles, 833 F.3d
1060, 1069–70 (9th Cir. 2016) (en banc). But we have continued to
apply a purely subjective test to state-created-danger claims. See
Herrera, 18 F.4th at 1160–61 (recognizing a tension between the
requisite mental states in Castro and post-Castro state-created-danger
cases but holding that it was bound by the latter cases).
16 POLANCO V. DIAZ

transmitting the disease between institutions. Plaintiffs also
allege that Defendants understood that San Quentin’s
construction posed unique challenges to containing a
potential outbreak due to its tight quarters, shared spaces,
and poor ventilation.
Despite that knowledge, Defendants went ahead with the
transfer. That allegation, alone, does not compel an
inference that Defendants were deliberately indifferent—for
example, had Defendants acted to mitigate the risks inherent
in a transfer, those efforts could show that Defendants had
not intended to expose prison employees to an unreasonable
risk. See Patel, 648 F.3d at 976 (holding that a teacher’s
“lapse in judgment” did not rise to the level of deliberate
indifference because she was “fairly active” in attempting to
protect the plaintiff); Herrera, 18 F.4th at 1163–64 (holding
that a school aid was not deliberately indifferent to the
dangers a student faced because the aid neither “abandoned”
the student nor “left him completely without protection”).
But according to the Complaint, Defendants did not
attempt to mitigate the risk. Despite their knowledge of the
dangers of COVID-19 and of the basic measures to prevent
its spread, Defendants did not take precautions to avoid
transferring COVID-positive inmates to San Quentin or to
decrease the likelihood that COVID-19 would spread from
transferred inmates to San Quentin employees. They moved
ahead with the transfer while knowing that the inmates’ test
results were woefully out of date. They failed to properly
screen the inmates for symptoms before the transfer; many
inmates were screened too early to determine whether they
had symptoms before boarding crowded buses. And
Defendants increased the risk that COVID-19 would spread
throughout the prison by placing the transferred inmates in
cells with grated rather than solid doors, having transferred
 POLANCO V. DIAZ 17

inmates use the same showers and mess hall as the other
inmates, and failing to provide masks or testing to inmates
and staff.
Defendants protest that the outbreak at CIM necessitated
a rapid transfer. But even if we were to assume that the
transfer itself could not have been done more carefully,
Defendants disregarded the safety of San Quentin employees
after the transfer, repeatedly ignoring express warnings that
their COVID-19 policies were insufficient and dangerous.
Two days after the transfer, the Marin County Public Health
Officer recommended that all transferred inmates be
completely sequestered from the original San Quentin
population and that all exposed inmates and staff be required
to wear masks. Rather than adopt the Health Officer’s
recommendations, Defendants ordered that the Officer be
informed that he lacked the authority to mandate measures
in their prison. Further warnings came a few weeks later,
when a group of health experts prepared an “Urgent Memo”
for Defendants. Those experts cautioned that San Quentin
was at high risk of a “catastrophic super-spreader event” due
to its inadequate testing and “grave lack of personal
protective equipment and masks.” Defendants did not
follow those experts’ recommendations to adopt masking
and testing requirements either, despite the availability of
both masks and tests.
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. See Hernandez, 897 F.3d at 1136 (holding that
allegations rose to the level of subjective deliberate
indifference because defendants were “aware of the danger
18 POLANCO V. DIAZ

to the plaintiffs” and yet “continued” their problematic
course of conduct).
In their briefs on appeal, Defendants offer a different
telling of the facts. In their view, the allegations do not rise
to the level of deliberate indifference because Defendants
faced an impossible tradeoff: the welfare of high-risk CIM
inmates on the one hand and the safety of San Quentin
employees on the other. The Constitution, Defendants
argue, cannot require prison officials to place the safety of
their staff above the safety of the inmates entrusted to their
care.
We are sympathetic to the competing priorities that
public officials had to navigate during the early days of the
COVID-19 pandemic. But the specific tradeoff that
Defendants invoke here is incompatible with the Complaint.
Taking Plaintiffs’ allegations as true and drawing reasonable
inferences in their favor, as we must at this stage of the
proceedings, properly testing and screening the inmates
before the transfer would have made the transfer safer for
both San Quentin employees and the transferred inmates.
Quarantining the transferred inmates, too, would have
benefitted all parties. And when it comes to masks and tests,
the Complaint expressly alleges that there was no such
tradeoff, asserting that masks and other personal protective
equipment were “easily obtainable” and highlighting two
separate occasions on which Defendants turned down labs’
offers to provide COVID-19 testing at San Quentin, at least
one of which offered to do so for free. On the face of the
Complaint, there is no room for Defendants’ version of the
events. We therefore hold that Plaintiffs have sufficiently
alleged that Defendants acted with deliberate indifference
toward the health and safety of San Quentin employees,
 POLANCO V. DIAZ 19

including Polanco, satisfying the second prong of the state-
created-danger claim.
B.
Not only has Polanco alleged a violation of his due
process right to be free from a state-created danger, but that
right was also “clearly established at the time of the
violation.” Pauluk, 836 F.3d at 1125 (quoting Espinosa v.
City & County of San Francisco, 598 F.3d 528, 532 (9th Cir.
2010)).
For the unlawfulness of an officer’s conduct to be
“clearly established,” it must be the case that, “at the time of
the officer’s conduct, the law was ‘sufficiently clear that
every reasonable official would understand that what he
[wa]s doing’ [wa]s unlawful.” District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011)). “In other words, existing
law must have placed the [un]constitutionality of the
officer’s conduct ‘beyond debate.’” Id. (quoting al-Kidd,
563 U.S. at 741).
Plaintiffs have met that demanding standard because the
unlawfulness of Defendants’ alleged actions was clearly
established by the combination of two of our precedents:
L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), and Pauluk v.
Savage, 836 F.3d 1117 (9th Cir. 2016). 8

8
We routinely rely on the intersection of multiple cases when holding
that a constitutional right has been clearly established. See, e.g., Ioane
v. Hodges, 939 F.3d 945, 957 (9th Cir. 2018) (“Taken together, the
holdings from [four prior cases] put the unlawfulness of [the officer’s]
conduct beyond debate.”); Gordon v. County of Orange, 6 F.4th 961, 971
(9th Cir. 2021) (holding that the relevant right was clearly established by
20 POLANCO V. DIAZ

In Grubbs, we recognized a state-created-danger claim
arising out of a prison’s disregard for the safety of one of its
employees. The plaintiff, a nurse working in an Oregon
correctional institution, was raped by an inmate. 974 F.2d at
120. She sued her supervisors under § 1983, claiming that
they had violated her due process rights by requiring her to
work alone with a “violent sex offender” who the officers
knew was “very likely to commit a violent crime if placed
alone with a female.” Id. We denied the state’s motion to
dismiss because the nurse alleged that her supervisors “took
affirmative steps to place her at significant risk” and “knew
of the risks.” Id. at 122.
Grubbs presents a close analogy to this case. There, as
here, a public employee was harmed due to her employer’s
deliberately indifferent conduct. And there, as here, the
employee worked in a correctional institution and was
harmed in the process of carrying out her job duties. Yet
there are also differences; the danger in Grubbs stemmed
from a violent inmate, whereas Polanco was harmed by a
disease that he contracted at his workplace. If Grubbs were
the only relevant precedent, whether Polanco’s due process
right was clearly established might be a close question.
But Grubbs does not stand alone. In Pauluk, we again
recognized a claim under the state-created-danger doctrine,
this time arising from an employer’s deliberate indifference
to workplace conditions posing serious health risks. A state

the “principles drawn from” three cases); Ballou v. McElvain, 29 F.4th
413, 426-27 (9th Cir. 2022) (holding that a right was clearly established
by the intersection of two cases). This approach is required by the
Supreme Court’s instruction that qualified immunity is improper where
“a legal principle [has] a sufficiently clear foundation in then-existing
precedent.” Wesby, 138 S. Ct. at 589.
 POLANCO V. DIAZ 21

employee there alleged that his employer violated his due
process rights by transferring him to an office building that
the employer knew was infested with toxic mold that the
employee would foreseeably breathe. 836 F.3d at 1119; see
also id. at 1134 (Noonan, J., dissenting) (“Pauluk . . . died
from inhaling poisonous air in the workplace.”). We held
that the plaintiff had produced sufficient evidence from
which a reasonable jury could find a constitutional violation
by concluding that the state employer affirmatively
transferred the employee to the infested building—placing
him in a “worse position” than he had been in before—and
that the employer acted with deliberate indifference in
exposing the employee to the dangerous mold. Id. at 1125.
Together, Grubbs and Pauluk put public officials on
notice that they may be liable under the state-created-danger
doctrine in a scenario where:
(1) the harmed party is their employee (Grubbs and
Pauluk);
(2) the harmed party encountered the relevant danger in
the course of carrying out employment duties in a
correctional facility (Grubbs);
(3) the danger was created by requiring the employee to
work in close proximity to people who posed a risk
(Grubbs);
(4) the physical conditions of the workplace contributed
to the danger (Pauluk); and
(5) the danger was a potentially fatal illness caused by
breathing contaminated air (Pauluk).
Defendants argue that this case is nonetheless unique
because it involves a (novel) viral outbreak. But after
22 POLANCO V. DIAZ

Pauluk, officers were on notice that they could be held liable
for affirmatively exposing their employees to workplace
conditions that they knew were likely to cause serious
illness, including dangers invisible in the air. And taking
Plaintiffs’ allegations as true—again, as we must do at this
stage of the proceedings—Defendants knew just that. 9 The
fact that the illness here was a newly discovered
communicable disease rather than a toxin would not have led
a reasonable official to conclude that the danger could be
ignored. 10 See al-Kidd, 563 U.S. at 741 (“We do not require
a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond
debate.”). COVID-19 may have been unprecedented, but the
legal theory that Plaintiffs assert is not.
C.
Defendants raise three additional arguments for why
they are entitled to qualified immunity. None succeed.

9
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.
See supra Section III.A.2. 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.
10
In other contexts, we have rejected the argument that the novelty of a
particular means of causing harm should, in and of itself, insulate
officials from liability. See, e.g., Nelson v. City of Davis, 685 F.3d 867,
884 (9th Cir. 2012) (“An officer is not entitled to qualified immunity on
the ground that the law is not clearly established every time a novel
method is used to inflict injury.” (cleaned up) (quoting Deorle v.
Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001))).
 POLANCO V. DIAZ 23

1.
Defendants urge us to take judicial notice of testimony
that the Receiver gave before the California State Senate,
which they argue shows that they were just following orders.
A court may take judicial notice of facts that are “not
subject to reasonable dispute” because they are either
“generally known within the trial court’s territorial
jurisdiction” or “can be accurately and readily determined
from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). The fact that the
Receiver testified before the California Senate is judicially
noticeable under that standard, but that does not mean we
can consider the testimony for its truth. See Khoja v.
Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir.
2018) (“Just because [a] document itself is susceptible to
judicial notice does not mean that every assertion of fact
within that document is judicially noticeable for its truth.”).
Considering the Receiver’s version of the events would
transform Defendants’ motion to dismiss into a motion for
summary judgment without offering Plaintiffs an
opportunity to depose the Receiver and further develop the
record. See Fed. R. Civ. P. 12(d). The district court did not
abuse its discretion in declining Defendants’ request to take
judicial notice of the Receiver’s testimony. 11
And even if the testimony could be considered for its
truth, Defendants would still not be entitled to immunity. In

11
We also reject Defendants’ argument that the Complaint’s mention of
the Receiver’s testimony incorporated the full testimony into the
Complaint by reference. See Orellana v. Mayorkas, 6 F.4th 1034, 1043
(9th Cir. 2021) (holding that the “mere mention” of a document “is
insufficient to incorporate” its contents into a complaint (quoting Tunac
v. United States, 897 F.3d 1197, 1207 n.8 (9th Cir. 2018))).
24 POLANCO V. DIAZ

his testimony before the California Senate, the Receiver
suggested that he was involved in the decision to transfer
inmates out of CIM, but he did not indicate that he directed
Defendants to transfer inmates to San Quentin. The
testimony also does not suggest that the Receiver directed
Defendants’ post-transfer protocols.
This case is therefore unlike Hines v. Youseff, 914 F.3d
1218 (9th Cir. 2019), or Rico v. Ducart, 980 F.3d 1292
(9th Cir. 2020), on which Defendants rely. In both of those
cases, the plaintiffs’ claims arose from actions state officials
took while following the express orders of a federal receiver
or an overseeing district court. See Hines, 914 F.3d at 1225,
1231; Rico, 980 F.3d at 1299–300. Even if we were to
consider the Receiver’s testimony alongside the Complaint,
that is not what the allegations and testimony suggest
happened here.
2.
Defendants next invoke a statute that they argue would
have led reasonable prison officials to believe that they could
handle the COVID-19 outbreak however they saw fit,
without a risk of liability. We reject that argument because
the statute does not affect the scope or clarity of the
underlying constitutional right, which is all that qualified
immunity considers.
The Public Readiness and Emergency Preparedness
(“PREP”) Act, 42 U.S.C. § 247d-6d, “provides immunity
from federal and state law claims relating to the
administration of certain medical countermeasures during a
declared public health emergency.” Cannon v. Watermark
Ret. Cmtys., Inc., 45 F.4th 137, 138 (D.C. Cir. 2022).
Congress passed the Act in 2005 to encourage during times
of crisis the “development and deployment of medical
 POLANCO V. DIAZ 25

countermeasures” (such as diagnostics, treatments, and
vaccines) by limiting legal liability relating to their
administration. Id. at 139 (citation omitted).
The district court held that the PREP Act does not confer
immunity here, and Defendants did not appeal (and do not
attempt to dispute here) that aspect of the district court’s
order. But Defendants nonetheless assert that they are
entitled to qualified immunity because of the Act’s
existence, which Defendants argue would have led a
reasonable officer to believe that he would be immune from
liability for any actions even arguably within the Act’s
scope.
Defendants’ argument conflates the existence of a
constitutional right with the availability of a remedy for a
violation of that right. Qualified immunity turns on the
existence and clarity of the underlying right; an officer is
entitled to constitutional immunity from a civil damages suit
only if his conduct “does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (emphasis added) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). The PREP Act,
however, limits remedies, not rights. See 42 U.S.C. § 247d-
6d(a)(1) (providing that “a covered person shall be immune
from suit and liability under Federal and State law” with
respect to certain claims (emphasis added)). The statute does
not (and could not) narrow the scope of a person’s
constitutional rights; rather, it limits an injured person’s
ability to secure a remedy in some circumstances.
3.
Lastly, Defendants urge us to consider the policy
consequences of permitting this lawsuit to proceed. They
26 POLANCO V. DIAZ

warn that allowing Plaintiffs to further pursue their due
process claims will cause officials to “delay or abandon
necessary inmate healthcare decisions” in the future. But the
qualified immunity inquiry already takes policy concerns of
that sort into account. See Harlow, 457 U.S. at 814
(describing qualified immunity as the “best attainable
accommodation of [the] competing values” of permitting
“vindication of constitutional guarantees” on the one hand
and avoiding “social costs,” such as “the diversion of official
energy from pressing public issues,” on the other). It is not
for us to upset the careful balance that the Supreme Court
has struck in crafting qualified immunity doctrine. 12
IV.
For the foregoing reasons, we AFFIRM.

12
Plaintiffs also allege that Defendants violated their due process right
to familial association with Polanco. On appeal, Defendants respond by
arguing only that the familial association claims are “derivative” of the
state-created-danger claim asserted on Polanco’s behalf and that they are
therefore entitled to qualified immunity on all claims for the same
reasons. Defendants have accordingly forfeited any other argument that
they are entitled to qualified immunity on the familial association claims.
See AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 638
(9th Cir. 2012) (holding that a party forfeited an argument by failing to
“‘specifically and distinctly’ argue the issue in his opening brief”
(quoting United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992))). We
therefore affirm the district court’s denial of qualified immunity with
respect to the familial association claims as well.
 POLANCO V. DIAZ 27

R. NELSON, dissenting:

Because the law is not clearly established, I conclude that
the Defendants are entitled to qualified immunity. As such,
I would reverse and therefore dissent. 1
I
The conduct at issue begins in the earliest days of the
COVID-19 pandemic. In May 2020, the science on the virus
was far from settled, including best practices for combatting
the virus. Prison officials at San Quentin State Prison and
the California Department of Corrections and Rehabilitation
faced a difficult task—managing prison affairs amid global
chaos.
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. Tabares v.
City of Huntington Beach, 988 F.3d 1119, 1122 (9th Cir.
2021). 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.

1
Because I find that the law is not clearly established here, I would not
analyze the underlying constitutional violation. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009) (“The judges of the district courts
and the courts of appeals should be permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the
particular case at hand.”).
28 POLANCO V. DIAZ

Hindsight is 20/20, and we cannot view the clearly
established inquiry through the lens of what we know or
believe to be true now. Graham v. Connor, 490 U.S. 386,
396–97 (1989) (“The ‘reasonableness’ of a particular use of
force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.”). The COVID-19 pandemic was unprecedented.
Therefore, to say that the law was clearly established in my
view disregards the exacting legal standard to overcome a
qualified immunity defense.
The standard for clearly established law is “demanding”
and “protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” District of Columbia v. Wesby,
138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)). “[E]xisting precedent must have
placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The
right must be so clear “that every ‘reasonable official would
[have understood] that what he is doing violates that right.’”
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). And “[a] rule is too general if the unlawfulness of
the officer’s conduct ‘does not follow immediately from the
conclusion that [the rule] was firmly established.’” Wesby,
138 S. Ct. at 590 (quoting Anderson, 483 U.S. at 641).
The Supreme Court has repeatedly told the Ninth Circuit
in particular “not to define clearly established law at a high
level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (per curiam) (quoting City & County of San
Francisco v. Sheehan, 575 U.S. 600, 613 (2015)); see also
Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8–9 (2021) (per
curiam); City of Escondido v. Emmons, 139 S. Ct. 500, 503–
04 (2019) (per curiam); al-Kidd, 563 U.S. at 742; Brosseau
v. Haugen, 543 U.S. 194, 197–201 (2004) (per curiam). This
 POLANCO V. DIAZ 29

is because “[t]he dispositive question is ‘whether the
violative nature of particular conduct is clearly
established.’” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per
curiam) (quoting al-Kidd, 563 U.S. at 742).
As is not uncommon in our circuit, the majority
regrettably fails to heed this guidance. Making matters
worse, in employing the high level of generality that the
Supreme Court has chastised us for, the majority concludes
that clearly established means “close enough.” That is not
the law.
II
The majority identifies two cases that, in its view, clearly
establish the constitutional violation: (1) L.W. v. Grubbs, 974
F.2d 119 (9th Cir. 1992), and (2) Pauluk v. Savage, 836 F.3d
1117 (9th Cir. 2016). Maj. at 19–20. Both cases fail to meet
the high burden that the Supreme Court requires.
The majority claims that Grubbs “presents a close
analogy to this case.” Maj. at 20. But “close,” by definition,
fails to satisfy the standard for clearly established. In
Grubbs, a nurse was hired to work in an institution’s medical
clinic and was specifically led to believe that she would not
have to work alone with violent sex offenders. 974 F.2d at
120. She was then attacked when she was left alone with a
known violent sex offender who had failed all treatment
programs at the institution and who “was considered very
likely to commit a violent crime if placed alone with a
female.” Id. Unfortunately, the offender assaulted, battered,
kidnapped, and raped the nurse. See id.
The facts of Grubbs deeply contrast with those here too
much to clearly establish the law. The majority suggests that
because “there, as here, the employee worked in a
30 POLANCO V. DIAZ

correctional institution and was harmed in the process of
carrying out her job duties,” Maj. at 20, that this supports a
finding of clearly established law. But this falls directly into
the “too high of a level of generality” conundrum that we
have repeatedly been warned against applying. See al-Kidd,
563 U.S. at 742 (“We have repeatedly told courts—and the
Ninth Circuit in particular—not to define clearly established
law at a high level of generality.” (cleaned up)). Working in
the same type of facility and suffering harm as an employee
cannot place everything unconstitutional “beyond debate.”
See id. at 741. Such a holding would strip the clearly
established standard of all its teeth.
The majority all but concedes that the clearly established
standard cannot be met. As it recognizes, “there are also
differences; the danger in Grubbs stemmed from a violent
inmate, whereas Polanco was harmed by a disease that he
contracted at his workplace.” Maj. at 20. The majority
explains why Grubbs cannot clearly establish the law here.
For a facility to directly place a violent person alone with an
employee does nothing to clearly establish the law for the
constitutional standards of an invisible, non-human, and
novel global virus wafting through the air. Respectfully,
there is no question that the conduct at issue in Grubbs fails
to have put the officials here “on notice” that their behavior
relating to their response to COVID-19 was
unconstitutional. See, e.g., Wesby, 138 S. Ct. at 589.
The majority seemingly agrees: “[i]f Grubbs were the
only relevant precedent, whether Polanco’s due process right
was clearly established might be a close question.” Maj. at
20. But the majority then asserts that the law is clearly
established because “Grubbs does not stand alone,” and
relies on Pauluk, 836 F.3d 1117, as well.
 POLANCO V. DIAZ 31

But Pauluk is not dispositive either. There, an employee
died from complications from toxic mold in his workplace.
Id. at 1119; Maj. 20-21. But again, the differences here are
distinguishable enough that they cannot support a holding of
clearly established law.
To begin, the law was not previously established before
Pauluk. Id. at 1121 (granting qualified immunity because it
found the law was not clearly established). And even though
the Pauluk court noted that the danger at issue was due to
physical conditions in the workplace, id. at 1119, this still
cannot have put the officers on notice that their conduct in
handling COVID-19 would be unconstitutional. The state-
created danger in Pauluk was both open and notorious: There
was a years-long history of mold; Pauluk repeatedly reported
the presence of mold in the building and near his office desk;
and Pauluk was exposed to said mold for over five years
before the decline of his health and eventual passing. See id.
Pauluk also repeatedly requested a transfer to a new
workplace because of the mold but was denied by his
superiors, who were fully aware of the mold infestation. See
id. Therefore, the officials in Pauluk were not only aware
the danger existed, but they also fully understood the risks
of mold exposure and refused to remedy the problem or
permit Pauluk to remedy it himself by transferring
workplaces for years. See id.
None of that exists here. Pauluk, like Grubbs, contrasts
with the rapidly evolving nature of COVID-19. During the
initial months of the pandemic, guidance was uncertain,
developing, and consistently changing. 2 The same cannot be

2
The majority counters that Plaintiffs’ have alleged that Defendants
knew of, and consciously disregarded, the risk that COVID-19 posed to
32 POLANCO V. DIAZ

said about toxic mold. The exposure of COVID-19 alleged
here did not persist over a matter of years in which the
subject brought the danger to the attention of any official, let
alone Defendants. Even if the complaint alleges that
Defendants knew or should have appreciated the risks to
Polanco, there is no allegation that Polanco raised the
official’s COVID-19 response as an issue or requested a
transfer. Rather than request transfer or reassignment,
Polanco volunteered to take on more shifts. The facts as
alleged also do not indicate that Polanco was prohibited from
taking any COVID-19 precautions he saw fit, such as

San Quentin employees. Maj. at 22 n.9. But this is not dispositive. We
have held that “a reasonable prison official understanding that he cannot
recklessly disregard a substantial risk of serious harm, could know all of
the facts yet mistakenly, but reasonably, perceive that the exposure in
any given situation was not that high.” Sandoval v. County of San Diego,
985 F.3d 657, 672 (9th Cir. 2021), cert. denied sub nom. San Diego
County v. Sandoval, 142 S. Ct. 711 (2021) (cleaned up). Thus, the
‘dispositive inquiry in the clearly established analysis is whether it would
be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted, based on the law at the time.” Id. Even
accepting the allegation that Defendants knew about the risks of COVID-
19 does not change the novelty of the pandemic—or that Pauluk and
Grubbs do not clearly establish the law based on the facts alleged by
plaintiffs.
That Defendants may be entitled to qualified immunity on summary
judgment, Maj. at 22 n.9, is cold comfort. The “‘driving force’ behind
creation of the qualified immunity doctrine was a desire to ensure that
insubstantial claims against government officials [will] be resolved prior
to discovery.” Pearson, 555 U.S. at 231 (quoting Anderson v. Creighton,
483 U.S. 635, 640 n.2 (1987) (cleaned up)). Accordingly, the Supreme
Court has repeatedly stressed the “importance of resolving immunity
questions at the earliest possible stage in litigation.” Hunter v. Bryant,
502 U.S. 224, 227 (1991) (per curiam).
 POLANCO V. DIAZ 33

wearing a mask or bringing in his own personal protective
equipment. These are meaningful distinctions from Pauluk.
The majority concludes that the differences between
toxic mold and COVID-19 are a distinction without a
difference. Maj. at 21-22. I disagree. COVID-19 presented
prison officials with a rapidly emerging and evolving
challenge that is simply different in kind from the problems
facing employers receiving continuing complaints over
years about mold. This does not satisfy the high threshold
the court’s caselaw commands for law to be clearly
established. 3
The majority cites no other case law that would clearly
establish the law here. Instead, the majority combines what
it perceives to be the most compelling attributes of Grubbs
and Pauluk together to show that the law is clearly
established. 4 But this mishmash of those cases still
examines the law at too high of a level of generality. Denial
of qualified immunity requires a factual case on point, even
if not perfect, that places the Defendants on notice that their
conduct was unconstitutional beyond debate. al-Kidd, 563
U.S. at 741. It is therefore no answer to say that “COVID-
19 may have been unprecedented, but the legal theory that

3
The majority relies on our decision in Nelson v. City of Davis, 685 F.3d
867, 884 (9th Cir. 2012), for the proposition that “[a]n officer is not
entitled to qualified immunity on the ground that the law is not clearly
established every time a novel method is used to inflict injury.” Maj. at
22 n.8 (quoting Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir.
2001)). Even so, our case law must clearly establish the constitutional
violation. Here, no such law exists.
4
Even combined, Maj. at 20 n.8, Grubbs and Pauluk do not establish the
law. Indeed, Grubbs can hardly add much when Pauluk held that the
law was not clearly established in 2016. And Pauluk does not clearly
establish the law here with sufficient specificity.
34 POLANCO V. DIAZ

Plaintiffs assert is not.” Maj. at 22. That holding is far more
dangerous to our future precedent, as it disregards the clearly
established inquiry we must assess here. And a shared legal
theory does not clearly establish the law because it “does not
necessarily follow immediately from the conclusion that [the
rule] was firmly established.” Wesby, 138 S. Ct. at 590
(quoting Anderson, 483 U.S. at 641). This reflects the same
logical flaw as the discussion of Grubbs: some similarity is
not enough.
It is also telling that plaintiffs cite no other binding
authority that clearly establishes the law beyond Grubbs and
Pauluk. I would thus also find that plaintiffs have not met
their burden of proof to foreclose qualified immunity. See,
e.g., Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.
1991) (“The plaintiff bears the burden of proof that the right
allegedly violated was clearly established at the time of the
alleged misconduct.”); see also Shafer v. County of Santa
Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017). To show a
clearly established right, plaintiffs must demonstrate the
right was clear “in light of the specific context of the case,
not as a broad general proposition.” Keates v. Koile, 883
F.3d 1228, 1239 (9th Cir. 2018) (quoting Mullenix, 577 U.S.
at 12). In the specific context of this case, they have not done
so.
III
No clearly established law placed the Defendants on
notice that their alleged mismanagement of the COVID-19
pandemic at San Quentin prison was unconstitutional such
that every “reasonable official would [have understood] that
what he is doing violates that right.” al-Kidd, 563 U.S. at
742 (citation omitted). As such, Defendants are properly
 POLANCO V. DIAZ 35

entitled to qualified immunity. I would reverse and therefore
respectfully dissent.