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Under the state-created-danger doctrine, state employers are liable when they affirmatively and with deliberate indifference create or expose their employees to a dangerous working environment.

Shortly after the COVID-19 became a national emergency, the Governor of California issued an order suspending the intake of inmates into all state correctional facilities and, soon afterwards, the California Correctional Health Care Services adopted a policy opposing the transfer of inmates between prisons, reasoning that transfers would “carry a significant risk of spreading transmission of the disease between institutions”. In this context, a group of high-level officials in the California prison system transferred 122 high-risk inmates from the California Institution for Men (CIM), where there was an outbreak of the COVID-19, to San Quentin State Prison, where there were no known cases of the virus.

Most of the men who were transferred were not tested for COVID-19 and none of them was properly screened for symptoms before the transfer; furthermore, even though some of them exhibited symptoms, they were not put on quarantine at their arrival at the prison; instead, all the transferred inmates were housed in a unit with grated doors. The transfer resulted in a violent outbreak of COVID-19 at the San Quentin prison. Despite this state of affairs, the prison official continued to put in place inadequate protective practices and ignored the recommendations received by both the Public Health Officer and a court-appointed medical monitor of California prison.

As a result, many inmates and a guard died. The heirs of the latter filed suit against the prison officials claiming that they had violated their relative’s substantive due process rights by affirmatively, and with deliberate indifference, placing him in danger. Indeed, under the state-created-danger doctrine, state employers - who in principle have no constitutional duty to provide their employees with a safe working environment – are liable when they affirmatively and with deliberate indifference create or expose their employees to a dangerous working environment. Plaintiffs also alleged that defendants breached their right to familial association.

Defendants filed a motion to dismiss arguing that at the time of the events the pandemic had just started and on account of the novelty of the disease they could not be held liable for their responses to COVID-19.

By judgment of 7 August 2023, the Ninth Circuit Court dismissed the motion filed by the defendants and stated that they were not entitled to any immunity on account of the novelty of the virus. In the Court’s view, at the time of the events defendants knew or should have appreciated the risks faced by the plaintiffs’ relative since guidance on the risks associated with the pandemic and on the preventive measures to be adopted in order to prevent the risk of spreading the virus already existed. Therefore, the Court held that the suit could proceed.

Reference: Polanco v. Diaz, Ninth Circuit Court, 7 August 2023.

Full text of the decision available at cdn.ca9.uscourts.gov en