by Douglas Ankney

On October 13, 2023, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court’s denial of qualified immunity (QI) to officials with the California Department of Corrections and Rehabilitation (CDCR) in two suits filed over a botched prisoner transfer during the COVID-19 pandemic that caused an outbreak of the disease at San Quentin State Prison, infecting thousands and killing 25 prisoners and staffers. In a third suit filed over a prisoner’s death from the disease, the Court also affirmed denial of QI ten days earlier on October 3, 2023. It reached the identical conclusion on August 7, 2023, in a suit filed after a San Quentin guard got sick and died.

As PLN reported, CDCR transferred 122 prisoners—some infected with COVID-19—from the California Institute for Men (CIM) to San Quentin in May 2020. Before the transfer, there were zero reported cases of the disease at San Quentin. But CIM had over 600 infected prisoners and nine deaths. Unbelievably, even callously, not one of the transferred prisoners was timely tested for COVID-19 before boarding the bus, though some displayed symptoms enroute. Worse, the former CIM prisoners were housed at San Quentin in ancient open-front cells that shared ventilation with the rest of the prison. They used the same showers as other prisoners and ate in the same chow hall. The predictable result: An explosive and deadly outbreak of the disease quickly infected over 2,500 San Quentin prisoners and 270 staff members, leaving 29 of them dead. [See: PLN, July 2021, p.34.]

It’s hard to overstate just how unnecessary these deaths were. Gov. Gavin Newsome (D) had declared a State of Emergency that suspended intake of new prisoners into all CDCR lockups. California Correctional Health Care Services (CCHCS) had adopted a policy opposing transfers between prisons because they “carried a significant risk of spreading transmission of the disease.” Prior to the transfer from CIM, the San Marin County Public Health Officer (PHO) had urged CDCR officials to sequester the prisoners upon arrival and issue masks and other personal protective equipment. But CDCR said the officer had no authority to mandate safety measures within the prison and ignored the advice. A group of Public Health Experts issued an “Urgent Memo,” warning that failure to test prisoners, sequester those infected and issue protective equipment at San Quentin could escalate into a “full blown local epidemic.” Two research laboratories offered testing—one free of charge. But CDCR officials ignored those warnings, too, also refusing the offer of free testing.

After the state Office of Inspector General laid the blame for the COVID-19 outbreak and deaths squarely at the feet of CDCR officials, San Quentin prisoner Steven Malear filed suit in state court alleging that “California and CDCR officials were responsible for the harm caused by their failure to take reasonable action to summon medical care for prisoners who were in need of it in violation of Gov. Code section 845.6.” The trial court sustained Defendants’ demurrer and dismissed the suit, but the Court of Appeal reversed that decision on March 13, 2023, as PLN reported. [See: PLN, Dec. 2023, p.14.]

Three Cases, Three Ninth Circuit Rulings

The recent decisions by the Ninth Circuit resolved claims by CDCR officials that they were shielded by QI and by the Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. § 247d-6d. That law “offered covered persons immunity from suit and liability for claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure,” the Ninth Circuit recalled. However, Defendants were not being sued for their “use of a covered countermeasure,” the Court pointed out, but for “their failure to use available countermeasures.”

Defendants also sought unsuccessfully to reassert their right to QI denied by the federal court for the Northern District of California in each of the three cases, arguing that Plaintiffs’ Eighth Amendment right in these circumstances was not clearly established. But as the Court explained in the consolidated case that included some prisoners who were sickened and the estates of some who died, the right to be protected from foreseeable serious harm was clearly established at the time. It noted every one of the warnings that CDCR officials ignored: Newsom’s emergency declaration, CCHCS’ policy opposing prisoner transfers, the PHO’s advice, the “Urgent Memo” from public health professionals—even the testing offers that were rebuffed—and said a jury could well find Defendants’ guilty of deliberate indifference. See: Harris v. Allison, 2023 U.S. App. LEXIS 27232 (9th Cir.).

The Court’s decision in that case referenced its holding 10 days earlier in a suit filed over the COVID-19 death of San Quentin prisoner Michael Hampton on September 25, 2020. And that decision, in turn, also referenced one reached the month before in a suit filed over the death on September 20, 2020, of San Quentin guard Gilbert Polanco. In each case, surviving family members alleged a violation of their loved one’s substantive due process rights by CDCR officials who “affirmatively, and with deliberate indifference, plac[ed] him in danger” with the transfers—in Polanco’s case, by requiring him to transport prisoners infected with COVID-19 to and from the hospital, as well as, incredibly, forbidding any of them from wearing masks.

The Court said that while the Fourteenth Amendment did not “impose an affirmative obligation on the State” to protect him, an exception exists under the state-created-danger doctrine, making state actors liable “for their roles in creating or exposing individuals to danger they otherwise would not have faced.” Here CDCR officials’ “affirmative conduct” placed Polanco in “an actual, particularized danger that [he] would not otherwise have faced,” so they may be found deliberately indifferent to that danger.

Accordingly, the Court affirmed the district court’s denial of Defendants’ motion to dismiss. Plaintiffs in both cases are represented by attorneys with Haddad & Sherwin LLP in Oakland. See: Hampton v. California, 83 F.4th 754 (9th Cir. 2023); and Polanco v. Diaz, 76 F.4th 918 (9th Cir. 2023). A request for rehearing en banc before the entire Ninth Circuit of Polanco’s case was rejected on November 16, 2023. See: Polanco v. Diaz, 2023 U.S. App. LEXIS 30571 (9th Cir.).  

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