NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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
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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