FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA POLANCO; VINCENT 

POLANCO; SELENA POLANCO; 

GILBERT POLANCO, Deceased, 

Plaintiffs-Appellees, 

 v. 

RALPH DIAZ; ESTATE OF 

ROBERT S. THARRATT; RONALD 

DAVIS, Warden; RONALD 

BROOMFIELD; CLARENCE 

CRYER; ALISON PACHYNSKI, 

MD; SHANNON GARRIGAN, MD, 

Defendants-Appellants, 

 and 

STATE OF CALIFORNIA; 

CALIFORNIA DEPARTMENT OF 

CORRECTIONS AND 

REHABILITATION; SAN QUENTIN 

STATE PRISON; LOUIE 

ESCOBELL, RN; MUHAMMAD 

FAROOQ, MD; KIRK A TORRES, 

MD, 

Defendants.

No. 22-15496 

D.C. No. 3:21-

cv-06516-CRB 

OPINION
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-inplace 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 highrisk 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 nonmoving 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 statecreated-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-createddanger 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-createddanger 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 statecreated-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. alKidd, 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. § 247d6d(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 statecreated 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 COVID19 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 “COVID19 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.