Wendy Pauluk v. Glenn Savage

Partial Concurrence and Partial Dissent by Judge MURGUIA

Dissent by Judge NOONAN

OPINION

This appeal stems from the death of Daniel Pauluk, an employee of the Clark County Health District (“CCHD”) in Nevada. Pauluk’s widow and daughters sued the CCHD and two of its employees, Edward Wojeik and Glenn Savage, alleging that their exposure of Pauluk to a workplace environment infested with toxic mold caused his death, in violation of the Due Process Clause of the Fourteenth Amendment. The district court denied summary judgment to Wojeik and Savage (collectively, “individual Defendants”). They bring an interlocutory appeal, contending that they are entitled to qualified immunity.

This case lies at the intersection of two lines of authority — on the one hand, the state-created danger doctrine under which constitutional due process claims may be brought; on the other, the Supreme Court’s decision in Collins v. City of Harker Heights, 503 U.S. 115 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992), declining to find a general due process right to a safe work *1119 place. We hold that Collins does not bar Plaintiffs’ due process claim. Plaintiffs have stated a claim under the state-created…

concurring in part and dissenting in part:

I fully agree with the opinion’s analysis as to the scope of this court’s jurisdiction to review the district court’s denial of summary judgment on qualified immunity grounds, and with its conclusion that the district court erred in denying qualified immunity to Wojcik and Savage. However, even accepting as true the plaintiffs’ version of events, see Behrens v. Pelletier, 516 U.S. 299, 313 , 116 S.Ct. 834 , 133 L.Ed.2d 773 (1996), I respectfully disagree that the plaintiffs have presented a cognizable claim that Wojcik and Savage affirmatively acted with deliberate indifference to Pau-luk’s substantive due process rights under the state-created danger doctrine.

I.

The state-created danger exception is a logical corollary to the well-settled rule that the government has no general duty under the Constitution to protect people from privately-inflicted harm. In DeSha- *1127 ney v. Winnebago County Department of Social Services, 489 U.S. 189 , 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989), the Supreme Court declared that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of…

dissenting:

Today, the majority holds that the state-created danger doctrine — a theory of constitutional harm whose contours have been “clearly established” by at least nine published opinions of this court over the course of two decades — is no longer sufficiently “clear” in light of a single case which addresses an unrelated legal theory. I respectfully dissent.

I.

In this circuit, the state-created danger doctrine begins with Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989). In Wood , a police officer arrested an intoxicated driver, impounded the vehicle, and refused the passenger’s request for a ride, léaving her stranded late at night in a high crime area. Id. at 586 . On her walk home, she accepted á ride from a stranger, who ultimately took her to a secluded area and raped her. Id. On these facts, this court held that the plaintiff raised a triable issue as to whether the officer’s conduct “affirmatively placed the plaintiff in a position of danger.” Id. at 589-90 . The court reasoned that while the officer did not assault Wood himself, he acted “in callous disregard for [her] safety” by exposing her to a known and “inherent danger.” Id. Wood and the cases that follow…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WENDY J. PAULUK, Psy.D, No. 14-15027 individually and as personal representative of D.C. No. the proposed Estate of 2:07-cv-01681-PMP-VCF Daniel Pauluk; JAIME L.

PAULUK; CHRISSY J.

PAULUK, OPINION

Plaintiffs-Appellees,

v.

GLENN SAVAGE, an individual; EDWARD WOJCIK, an individual, Defendants-Appellants.

Appeal from the United States District Court for the District of Nevada Philip M. Pro, Senior District Judge, Presiding

Argued and Submitted February 11, 2016 San Francisco, California

Filed September 8, 2016

Before: John T. Noonan, William A. Fletcher, and Mary H. Murguia, Circuit Judges. Opinion by Judge W. Fletcher; Partial Concurrence and Partial Dissent by Judge Murguia Dissent by Judge Noonan

SUMMARY*

Civil Rights

The panel reversed the district court’s order, on summary judgment, denying qualified immunity to two employees of the Clark County Health District in an action brought pursuant to 42 U.S.C. § 1983 by the widow and daughters of Daniel Pauluk, an employee of the Health District, who died allegedly from…