NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 30 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL MANEY; GARY CLIFT; THERON No. 24-2715 HALL; DAVID HART; SHERYL LYNN D.C. No. SUBLET; FELISHIA RAMIREZ; MICAH 6:20-cv-00570-SB

RHODES; GEORGE NULPH,

Plaintiffs - Appellees, MEMORANDUM*

v.

STATE OF OREGON; COLETTE S.

PETERS, AKA C. Peters; HEIDI STEWARD, Acting Director; MIKE

GOWER; MARK NOOTH; ROB

PERSSON; JOE BUGHER; GARRY

RUSSELL,

Defendants - Appellants.

Appeal from the United States District Court for the District of Oregon Stacie F. Beckerman, Magistrate Judge, Presiding

Argued and Submitted June 11, 2025 Portland, Oregon

Before: SCHROEDER, TALLMAN, and OWENS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. This interlocutory appeal arises from a class action brought by adults in

custody (AIC) at Oregon Department of Corrections (ODOC) institutions

(collectively Plaintiffs) against various high-level ODOC officials (collectively

Defendants) based on their response to the COVID-19 pandemic. Plaintiffs allege

that Defendants violated their Eighth Amendment rights by failing to protect them

from heightened exposure to COVID-19. They now seek money damages for

contracting COVID-19 in ODOC facilities during the first two years of the

pandemic.

The district court denied Defendants’ motion for summary judgment on

qualified immunity grounds because it found that there were genuine issues of

material fact about the constitutionality of ODOC’s COVID-19 response. Following

the district court’s decision, Defendants filed this interlocutory appeal, arguing that

they are entitled to qualified immunity as a matter of law. We construe the facts in

favor of the non-moving party in reviewing summary judgment rulings. T.W. Elec.

Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630–31 (9th Cir. 1987).

We review the denial of qualified immunity de novo. Rice v. Morehouse, 989 F.3d

1112, 1120 (9th Cir. 2021).

We typically do not have jurisdiction to review denials of summary judgment

as they are not final orders. Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938,

944 (9th Cir. 2017). However, under the collateral order exception to the finality

2 24-2715 doctrine, we may review summary judgment orders denying qualified immunity.

Plumhoff v. Rickard, 572 U.S. 765, 771–73 (2014). “[T]he scope of our review over

the appeal [in this context] is circumscribed,” and we only have jurisdiction to

review “whether or not certain given facts showed a violation of ‘clearly established

law.’” Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam)

(citations omitted). At this stage, we cannot review the district court’s determination

that there are genuine issues of material fact underlying the Eighth Amendment

analysis. Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009). Instead, we can only

consider whether Defendants “would be entitled to qualified immunity as a matter

of law, assuming all factual disputes are resolved, and all reasonable inferences are

drawn, in plaintiff’s favor.” Ballou v. McElvain, 29 F.4th 413, 421 (9th Cir. 2022)

(quoting Estate of Anderson v. Marsh, 985 F.3d 726, 731 (9th Cir. 2021)). Thus, we

have jurisdiction to hear this interlocutory appeal of the district court’s denial of

qualified immunity for Defendants, and we affirm.1

1 Defendants also argue that Plaintiffs lack standing to bring the Eighth Amendment damages claims that the underlying suit is based upon. However, we lack jurisdiction to consider these arguments at this stage. See Eng, 552 F.3d at 1068 n.2 (noting that “any ruling on [standing] issues will generally be independent of the qualified immunity inquiry itself and cannot be raised on interlocutory appeal,” and “we may address such matters only on appeals from final judgments”). Nor is the standing analysis “inextricably intertwined” with the qualified immunity analysis such that we may exercise our pendant appellate jurisdiction to reach the merits of the standing issues to “‘ensure meaningful review of’ the order properly before us on interlocutory appeal.” Melendres v. Arpaio, 695 F.3d 990, 996 (9th Cir. 2012)

3 24-2715 1. The district court did not err by denying Defendants’ motion for summary

judgment because, at this stage of the case, they are not entitled to qualified

immunity as a matter of law. “The doctrine of qualified immunity shields officials

from civil liability so long as their conduct ‘does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’”

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Pearson v. Callahan,

555 U.S. 223, 231 (2009)). “We must affirm the district court’s denial of qualified

immunity if, resolving all factual disputes and drawing all inferences in [Plaintiffs’]

favor, [Defendants’] conduct (1) violated a constitutional right that (2) was clearly

established at the time of the violation.” Ballou, 29 F.4th at 421.

The constitutional right Plaintiffs allege Defendants violated was “[t]he

Eighth Amendment’s prohibition against ‘cruel and unusual punishments’” which

“imposes duties on prison officials to provide ‘humane conditions of confinement.’”

Hampton v. California, 83 F.4th 754, 765 (9th Cir. 2023), cert. denied sub nom. Diaz

v. Polanco, 144 S. Ct. 2520 (2024) (quoting Farmer v. Brennan, 511 U.S. 825, 832

(1994)). The Eighth “Amendment’s protections extend to ‘condition[s] of

confinement that [are] sure or very likely to cause serious illness and needless

suffering’ in the future” like exposure to “infectious maladies.” Id. at 766

(quoting Meredith v. Oregon, 321 F.3d 807, 813 (9th Cir. 2003), as amended 326 F.3d 1030 (9th Cir. 2003)).

4 24-2715 (alterations in original) (quoting Helling v. McKinney, 509 U.S. 25, 33 (1993)). To

establish their Eighth Amendment conditions of confinement claim, Plaintiffs must

demonstrate (1) an “objectively, ‘sufficiently serious’” deprivation, and (2) that

Defendants acted “subjectively, with ‘deliberate indifference’” to this deprivation.

Id. (citation omitted).

We have previously held that involuntarily exposing inmates to COVID-19

satisfies the Eighth Amendment’s objective prong. See id. Defendants argue that

the right Plaintiffs assert is not a conditions of confinement claim, but rather the right

to “an overall ‘reasonable’ pandemic response in the aggregate,” which is not

protected by the Eighth Amendment. However, we reject this argument as Plaintiffs

are class members who are each alleging that they were involuntarily exposed to

COVID-19 in their correctional facilities at the height of the pandemic. Thus, they

are asserting the same conditions of confinement claim that we have already found

satisfies the Eighth Amendment’s objective prong. See id.

The subjective component of a conditions of confinement claim based on

exposure to a hazard “requires a plaintiff to allege that officials ‘kn[ew] of and

disregard[ed] an excessive risk to inmate health or safety.’” Id. at 767 (alteration in

original) (quoting Farmer, 511 U.S. at 837). The district court found that there were

genuine issues of material fact regarding whether Defendants consciously

disregarded the substantial risk of harm COVID-19 posed to Plaintiffs. Specifically,

5 24-2715 it found that genuine issues of material fact remained as to whether Defendants (1)

implemented and enforced a masking policy and whether that policy was consistent

with then-current public health guidance; (2) adopted housing policies to minimize

mixing of AICs from different housing units; (3) implemented a policy of testing

symptomatic AICs and symptomatic close contacts of confirmed COVID-19 cases;

(4) adopted a policy of testing asymptomatic close contacts; (5) enforced a

quarantine policy; or (6) considered using empty facilities or spaces to improve

social distancing.

We are bound by the district court’s determination that, as a matter of law,

genuine issues of material fact exist to preclude a declaration of liability now. See

Eng, 552 F.3d at 1067. And construing the genuine issues of material fact identified

by the district court in Plaintiffs’ favor would satisfy the subjective prong of their

Eighth Amendment claim, as it would show that Defendants acted with deliberate

indifference. Thus, at this stage, we cannot decide as a matter of law that Defendants

did not violate Plaintiffs’ Eighth Amendment rights.

2. The right Plaintiffs assert was also clearly established at the time of

Defendants’ conduct. “[A]n inmate’s right to be free from exposure to a serious

disease . . . has been clearly established since at least 1993, when the Supreme Court

decided Helling v. McKinney, 509 U.S. 25 (1993).” Hampton, 83 F.4th at 769–70

(collecting cases). Thus, we have previously held that that “all reasonable prison

6 24-2715 officials would have been on notice in 2020 that they could be held liable for

exposing inmates to a serious disease, including a serious communicable disease,”

like COVID-19. Id. at 770.

Defendants cannot prove that they are entitled to qualified immunity as a

matter of law at this stage. The district court identified genuine issues of material

fact underlying whether Defendants acted with deliberate indifference. If a

reasonable jury resolves these questions in Plaintiffs’ favor, then it could find that

Defendants violated Plaintiffs’ clearly established Eighth Amendment rights. But

that requires the fact finder to determine what we cannot at this stage of the litigation.

AFFIRMED.

7 24-2715