In May of 2020, a severe COVID-19 outbreak occurred at the California Institute for Men (CIM) in Chino that killed at least nine inmates and infected over six hundred. To prevent further cases, 122 inmates with high-risk medical conditions were transferred from CIM to the California Department of Corrections and Rehabilitation at San Quentin (CDCR or San Quentin). Most of the inmates to be transferred: had not been tested for COVID-19 for over three weeks; were not screened for symptoms; and were put onto buses together to travel for over six hours to San Quentin. Upon arrival, they were not quarantined, and instead placed into the general population housing unit with grated doors, and allowed to shower and eat with the other CDCR inmates. Within days, 25 of the transferred inmates had tested positive for COVID-19. In just three weeks, San Quentin went from zero confirmed cases to nearly 500, and that number increased to over 2,100 cases within just two months.
During this time, a group of high-level CDCR officials were repeatedly informed of the risks of the transfer and ignored advice to minimize the risks. Days after the transfer was initiated, the Marin County Public Health Officer warned them to sequester the transferred inmates from the general population and to require masks for all exposed inmates and staff.
In mid-June, a court-appointed, medical monitor of California prisons requested a group of health experts to investigate the outbreak. The CDCR officials were sent a document titled, “Urgent Memo” which warned that the outbreak at CDCR could escalate, and criticized the officials’ handling of the outbreak. For example, personal protective equipment (PPE) and masks were not provided to inmates nor staff, despite being readily available. COVID-19 testing was also “unacceptably” delayed, yet the officials denied two research labs that had offered to provide such testing, one at no-cost.
Ultimately, by the end of summer, 26 inmates and one guard, Sgt. Gilbert Polanco, had died from the COVID-19 outbreak at San Quentin. Sgt. Polanco had numerous health conditions that put him at a high risk if he were to contract COVID-19. Despite this, one of his primary job duties was to drive sick inmates to the hospital. Officials’ refused to provide him or the inmates with PPE or masks during these trips.
Sgt. Polanco’s family sued the CDCR officials alleging they violated his substantive due process rights and with deliberate indifference placed him in state-created danger. The lower court rejected the CDCR officials’ request to dismiss the case on the grounds of qualified immunity. The CDCR officials appealed.
The California Court of Appeal affirmed, holding that the Sgt. Polanco’s family sufficiently alleged a violation of Sgt. Polanco’s due process right to be free from a state-created-danger. The state-created-danger doctrine holds state officials liable when they affirmatively, and with deliberate indifference, create or expose employees to a dangerous working environment. Here, the Court found the transfer of 122 inmates from CIM to San Quentin, and placing them into the general population, met the affirmative conduct standard. The Court also found the harm was clearly foreseeable, as CIM was experiencing an active COVID-19 outbreak, yet it failed to properly test or screen any of the transferred inmates. The allegations also satisfied the “deliberate indifference” requirement, because the CDCR officials were keenly aware of the dangers of transferring the inmates, did nothing to mitigate those potential dangers, and repeatedly ignored the express warnings and recommendations from public health experts.
The Court also denied the CDCR officials’ claims that they were entitled to qualified immunity. The Court found that the officials were on notice that they may be liable under the state-created-danger doctrine in this scenario. Thus, while the COVID-19 pandemic was novel, the applicable legal theory, the court reasoned, was well established and the CDCR officials could be held liable for their conduct. The Court allowed Sgt. Polanco’s family to proceed with their lawsuit.
Polanco v. Diaz, 2023 U.S. App. LEXIS 20307.