Wendy Pauluk v. Glenn Savage

836 F.3d 1117, 41 I.E.R. Cas. (BNA) 1139, 2016 U.S. App. LEXIS 16511, 2016 WL 4698287
Court of Appeals for the Ninth Circuit·Decided September 8, 2016·No. 14-15027·Published·Cited by 68 cases

Opinions

Partial Concurrence and Partial Dissent by Judge MURGUIA

Dissent by Judge NOONAN

OPINION

W. FLETCHER, Circuit Judge:

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]*1119place. We hold that Collins does not bar Plaintiffs’ due process claim. Plaintiffs have stated a claim under the state-created danger doctrine, notwithstanding the fact that the danger at issue is a physical condition in the workplace. However, we reverse the district court’s denial of summary judgment as to Wojcik and Savage, on the ground that the due process right asserted by Plaintiffs was not clearly established at the time of the violation.

I. Background

A. Facts

Because this is an appeal from the denial of the individual Defendants’ motion for summary judgment, we view the facts in the light most favorable to Plaintiffs. Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059 (9th Cir.2006). Except as noted, we recount the facts as viewed in this light.

Daniel Pauluk worked for the CCHD in Nevada as an Environmental Health Specialist from. 1998 until illness forced him to take leave in 2005. During his tenure at the CCHD, Pauluk was transferred a number of times. He was initially assigned to the CCHD’s “Shadow Lane” facility. He later worked at two satellite offices before being transferred back to Shadow Lane in February 2003. Pauluk did not want to return to Shadow Lane due to concerns about the presence of mold. Shadow Lane, along with several other Clark County buddings, suffered from chronic roof and water leakage problems that resulted in the proliferation of toxic mold inside the facilities. Pauluk was transferred back to Shadow Lane, over his objection, because his supervisor had been reassigned to that facility.

Between 2003 and 2005, while he was working at Shadow Lane, Pauluk complained repeatedly about mold. For example, he requested testing of a ceiling panel above his desk “[d]ue to the history of mold” in the building, and he reported “mold spores” found near his desk. Pauluk repeatedly requested, both orally and in writing, that he be transferred from Shadow Lane because mold exposure was adversely affecting his health.

Defendants Edmund Wojcik and Glenn Savage worked at Shadow Lane during the time at issue. Both were Pauluk’s superiors in his chain-of-command. Pauluk reported to his immediate supervisor, Paul Klouse, who reported to Wojcik, who reported to Savage. When Pauluk made a transfer request or a report about mold, it was ordinarily made to Klouse and was then “channelled]” up to Wojcik and Savage. On one occasion, Pauluk personally asked Wojcik for a transfer, but Wojcik told Pauluk that he needed to follow the proper “channel” when making a transfer request. Although the parties dispute the manner in which Wojcik and Savage responded to Pauluk’s complaints about mold, they agree that all of Pauluk’s transfer requests were denied.

Plaintiffs maintain that Pauluk’s exposure to mold at Shadow Lane led to Pau-luk’s illness and eventual death. Pauluk was exposed to mold starting as early as 1998, but he did not start having health problems until he was transferred back to Shadow Lane in 2003. Shortly after this transfer, Pauluk began to experience a number of adverse health effects, including “mental confusion & slow thinking,” “chronic exhaustion,” “headaches,” “chronic diarrhea,” “airway obstruction in [his] lungs,” breathing problems, “chills,” a “stiff neck,” “cramps in back and abdomen,” vomiting, kidney cysts, and dehy- ’ dration. Deposition testimony from several doctors corroborated that Pauluk was ill and that the illness was caused by mold. One doctor testified that he treated Pauluk for a variety of ailments that the doctor concluded were the result of “toxic mold exposure.” Another doctor treated Pauluk [1120]*1120for “aspergillosis,” an infection caused by mold. A third doctor, who treated Pauluk toward the end of his life, testified that mold exposure in the workplace “was causally related to [Pauluk’s] illness.”

Pauluk’s poor health eventually forced him to leave his job. In October 2005, Pauluk took leave under the Family and Medical Leave Act based on his doctor’s Labor- Department certification stating that he was suffering from “[t]oxic mold exposure with airflow obstruction.” Pau-luk’s illness progressively worsened during the next two years. He died on July 17, 2007. Pauluk’s death certificate originally stated that his cause of death was “end stage debility” and “chronic obstructive pulmonary disease.” The' certificate was amended a month later to state that the cause of death was “mixed mold mycotoxi-cosis.”

B. Procedural History

After Pauluk’s death, his wife and daughters filed suit under 42 U.S.C. § 1983 against the CCHD, Wojcik, and Savage. They alleged that CCHD and the individual Defendants’ role in exposing Pauluk to a dangerous, mold-infested work environment caused his death. They brought claims under the Due Process Clause of the Fourteenth Amendment as well as under state law. After years of litigation in state and federal court, Wojcik and Savage moved for summary judgment. They contended that there was insufficient evidence to support Plaintiffs’ claims (1) that Shadow Lane was unconstitutionally unsafe, (2) that the defendants acted with deliberate indifference, and (3) that there was a causal relationship between conditions at Shadow Lane and Pauluk’s death. Wojcik and Savage also argued that they were entitled to qualified immunity.

The district court granted in part and denied in part Wojcik and Savage’s motion for summary judgment. The court granted summary judgment to them on a negligent supervision and training claim but denied summary judgment as to all other claims.

Defendants Wojcik and Savage filed this interlocutory appeal seeking review of the district court’s order denying qualified immunity. On July 2, 2014, a motions panel of this court denied without prejudice Plaintiffs’ motion to dismiss for lack of jurisdiction. See Nat’l Indus., Inc. v. Republic Nat’l Life Ins. Co., 677 F.2d 1258

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Wendy Pauluk v. Glenn Savage, 836 F.3d 1117, 41 I.E.R. Cas. (BNA) 1139, 2016 U.S. App. LEXIS 16511, 2016 WL 4698287 (9th Cir. 2016).

836 F.3d 1117 (Wendy Pauluk v. Glenn Savage) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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