                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                             FILED
                            FOR THE NINTH CIRCUIT
                                                                              FEB 29 2016
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
WENDY J. PAULUK, Psy.D, individually              No. 14-15027
and as personal representative of the
proposed Estate of Daniel Pauluk; JAIME           D.C. No. 2:07-cv-01681-PMP-
L. PAULUK; CHRISSY J. PAULUK,                     VCF

              Plaintiffs - Appellees,
                                                  MEMORANDUM*
 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

Before: NOONAN, W. FLETCHER, and MURGUIA, Circuit Judges.

      Defendants–Appellants (“Defendants”) Glenn Savage and Edward Wojcik

bring this interlocutory appeal challenging the district court’s denial of qualified



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
immunity. We conclude that the Appellants are entitled to qualified immunity, and

we therefore reverse the district court.

      We have jurisdiction to decide whether, assuming that the Plaintiffs-

Appellees’ (“Plaintiffs”) version of the facts is true, the Defendants violated a

clearly established constitutional right. Behrens v Pelletier, 516 U.S. 299, 312–13

(1996); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059–60 (9th Cir. 2006).

The Defendants are entitled to qualified immunity only if the facts, taken in the

light most favorable to the plaintiffs, demonstrate (1) that the Appellants’ conduct

violated a constitutional right, and (2) that the constitutional right was “clearly

established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). We have discretion to

grant qualified immunity on either ground. Pearson v. Callahan, 555 U.S. 223,

236 (2009).

      Even assuming that the Defendants violated the Constitution by transferring

Pauluk to Shadow Lane in 2003 and subsequently refusing to move him out, we

conclude that a constitutional violation, if any, was not “clearly established.” The

facts of this case are very similar to Collins v. City of Harker Heights, 503 U.S.

115 (1992). Both Collins and this case involved constitutional allegations

stemming from a state employer’s decision to send a person into a work

environment polluted by a biotic danger, such as lack of oxygen (as in Collins) or


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toxic mold (as in this case). Collins, 503 U.S. at 117. In Collins, the Supreme

Court rejected the plaintiff’s claim that there was a constitutional violation under

such circumstances. Id. at 130. Given the similarity between the facts of this case

and Collins, it was reasonable for the Defendants to assume that their conduct did

not violate the Constitution.

      Plaintiffs may be correct that this case may be distinguished from Collins.

Here, Plaintiffs have alleged a constitutional claim under the state-created danger

doctrine, rather than arguing simply that Defendants violated Pauluk’s

constitutional right to a safe workplace. Collins does not necessarily foreclose

Plaintiffs’ claims, given that we have previously permitted a state-created danger

claim to proceed, notwithstanding the fact that the harm occurred in a workplace

environment. See L.W. v. Grubbs, 974 F.2d 119, 122 (9th Cir. 1992).

Nevertheless, even assuming that the state-created danger doctrine is properly

construed as an “exception” to Collins such that the plaintiffs’ have alleged a valid

constitutional violation, the factual circumstances of this case are simply too

similar to the facts of Collins for the Defendants to have been “on notice [that]

their conduct [wa]s unlawful.” Pearson, 555 U.S. at 244 (quoting Hope v. Pelzer,

536 U.S. 730, 739 (2002)).

      REVERSED and REMANDED.


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