After a prison guard at San Quentin died from COVID-19, his wife and children sued the State of California, its Department of Corrections and Rehabilitation (CDCR), and others for transferring inmates with the disease to the prison where their husband and father worked. They argued that the transfer “ultimately killed” their family member. They sued and won in the trial court, but then the defendants filed a motion to dismiss, which was rejected by the District Court. The Ninth Circuit affirmed the dismissal because of the “state-created-danger doctrine.”

This case of Sergeant Gilbert Polanco, filed by Patricia Polanco et. al. against the State of California, began shortly after Governor Gavin Newsom declared a state of emergency in March 2020. That same month, Newsom issued an executive order that suspended all State correctional facilities from taking in new inmates. CDCR soon adopted a policy that opposed the transfer of inmates from one prison to another because it believed that moving them would “carry a significant risk of spreading transmission of the disease between institutions.”

The 2-1 Ninth Circuit opinion on August 7 affirmed the decision of Presiding District Judge Charles R. Breyer of the Northern District of California. It acknowledged that high-level State correction officials were aware of the risks that COVID posed in prisons. Nonetheless, they approved the transfer of 122 inmates from the California Institute for Men (CIM) to San Quentin on May 30. CIM had suffered a “severe outbreak” of COVID earlier that month that “had killed at least nine inmates and infected over six hundred.” The transfer took place despite prison officials’ acknowledgment that moving inmates from CIM to San Quentin “would be particularly difficult due to its tight quarters, antiquated design, and poor ventilation.” Justice Ryan D. Nelson dissented, saying that the state had qualified immunity.

The opinion, written by Circuit Judge Michelle T. Friedland said, “The transfer did not go well.” Most of the transferred inmates, all of whom had “high-risk medical conditions,” were not tested for COVID for three weeks prior to their relocation. Neither were they “properly screened for symptoms before being packed into buses…in numbers far exceeding the COVID-capacity limits that CDCR had mandated for inmate safety.” Even though some of the transferees showed symptoms, none were quarantined after they arrived. In fact, they were housed in a facility with grated doors that allowed air to flow between cells.

Marin County Public Health Department officials learned about the transfer two days after the new inmates arrived. They immediately suggested that they be “sequestered” and that everyone wear masks. Friedland writes, “Defendants did not heed this advice.” Instead, they told the Health Department employee that he “lacked the authority to mandate measures in a state-run prison.” Shortly thereafter, “COVID began to sweep through San Quentin” as the COVID count soared from zero to 500.

In mid-June, a court-appointed medical monitor investigated the tragic outbreak. He concluded there would be a “full-blown local epidemic and health care crisis in the prison and surrounding communities” if the outbreak were not contained, but his recommendations were ignored. By September, 26 inmates and one guard, Sergeant Gilbert Polanco, had died. He was 55 and had worked at San Quentin for 20 years. He was at “high-risk” for COVID, as he suffered from obesity, diabetes and hypertension, among other health problems. Despite this, one of his duties was driving sick inmates to local hospitals. He got COVID in late June and died in August.

Polanco’s wife and children sued the State, the CDCR and others for violating Polanco’s constitutional due process rights and placing him in danger “with deliberate indifference.” Defendants moved to dismiss, arguing they have qualified immunity on all constitutional claims. The district court denied qualified immunity, defendants appealed, and the Ninth Circuit heard the appeal.

Friedland’s opinion began with an explanation of the “state-created-danger doctrine,” which says the state may be liable for its role in creating or exposing individuals to danger they otherwise would not have faced.” She noted that the doctrine requires “affirmative conduct” by the State, which was present in Plaintiffs’ case because Polanco’s work assignments exposed him to a foreseeable, “actual, particularized danger” that occurred after the inmate transfer. In addition, the danger was “sufficiently severe to cause constitutional concerns,” Friedland wrote. Defendants countered by saying that Polanco could have “refused to work in a prison.”

The opinion then turned to the requirement that the state’s actions demonstrated “deliberate indifference” because it recognized “an unreasonable risk and actually intended to expose the plaintiff to such risk.” Friedland concluded the prison officials knew of the dangers of transfers, went ahead with them anyway and did little to mitigate the risk. She called it “a textbook case of deliberate indifference.”

In addition, several precedents support affirming the district court’s decision in favor of plaintiffs, because prison officials were “on notice” that they could be liable under the state-created-danger doctrine. None of defendants’ qualified immunity defenses were persuasive because of, among other things, “the scope or clarity of the underlying constitutional right, which is all that qualified immunity considers.” She also discounted defendant’s’ public policy arguments, which they claimed would harm prisoners’ health care in the future. She explained that the qualified immunity doctrine already considers public policy.

Regardless of the crimes that sent them to prison, the inmates, their families, and certainly prison personnel deserved more care and risk prevention and mitigation than they got at San Quentin.