source: Caselaw Access Project

author: W. FLETCHER, Circuit Judge: MURGUIA, Circuit Judge, NOONAN, Circuit Judge,

license: Public Domain

text:
    Wendy J. PAULUK, Psy.D, individually and as personal representative of the proposed Estate of Daniel Pauluk; Jaime L. Pauluk; Chrissy J. Pauluk, Plaintiffs-Appellees, v. Glenn SAVAGE, an individual; Edward Wojcik, an individual, Defendants-Appellants.
    No. 14-15027
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 11, 2016 — San Francisco, California
    Filed September 8, 2016

      Peter M. Angulo (argued) and Walter R. Cannon, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, Nevada, for Defendants-Appellants.
    John J. Tofano (argued), Las Vegas, Nevada, for Plaintiffs-Appellees.
    Before: JOHN T. NOONAN, WILLIAM A. FLETCHER, and MARY H. MURGUIA, Circuit Judges.
   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 workplace. 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 for “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, 1262 (9th Cir.1982) (stating that a merits panel may consider appellate jurisdiction despite an earlier denial of a motion to dismiss).

II. Standard of Review

We review de novo a challenge to our appellate jurisdiction over an interlocutory appeal. Bingue v. Prunchak, 512 F.3d 1169, 1172 (9th Cir.2008). We also review de novo an interlocutory appeal from the denial of summary judgment based on qualified immunity. Kennedy, 439 F.3d at 1059.

III. Appellate Jurisdiction

Plaintiffs contend that we lack jurisdiction over this interlocutory appeal because the district court based its denial of summary judgment on purely factual grounds. The individual Defendants, on the other hand, contend that we have jurisdiction over the “purely legal” question of whether, “assuming the factually-supported version of events offered by [Plaintiffs] is correct,” the district court erred in denying qualified immunity. We agree with the individual Defendants.

In general, we have jurisdiction to hear appeals only from “final decisions.” 28 U.S.C. § 1291; Johnson v. Jones, 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). However, the Supreme Court has created an exception to the final judgment rule for certain interlocutory appeals when the district court has denied a motion for summary judgment based on qualified immunity. “[A] district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Not every interlocutory appeal from a denial of a motion for summary judgment based on qualified immunity is immediately appealable. The Supreme Court has distinguished between (1) an appeal raising the “purely legal” question of whether the facts alleged by the plaintiff demonstrate a violation of clearly established law, and (2) an appeal contesting the district court’s conclusion that a genuine issue of material fact exists. Johnson, 515 U.S. at 313, 319-20, 115 S.Ct. 2151; see also Cunningham v. City of Wenatchee, 345 F.3d 802, 807 (9th Cir.2003); Behrens v. Pelletier, 516 U.S. 299, 306, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). Since its decision in Johnson, the Supreme Court has repeatedly stated that a court of appeals has jurisdiction over an appeal from a denial of qualified immunity, even when the district court’s order concludes that there are disputed issues of material fact. Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2018-20, 188 L.Ed.2d 1056 (2014); Behrens, 516 U.S. at 312-13, 116 S.Ct. 834 (“Denial of summary judgment often includes a determination that there are controverted issues of material fact, and Johnson surely does not mean that every such denial of summary judgment is nonappealable.” (citation omitted)). Because we do not have jurisdiction over a district court’s determination that there are genuine issues of material fact, we cannot review Wojeik and Savage’s arguments that there was insufficient evidence to show that Shadow Lane was unsafe, that the defendants acted with deliberate indifference, or that there was a causal relationship between the conditions at Shadow Lane and Pauluk’s death. But we do have jurisdiction, construing the facts and drawing all inferences in favor of Plaintiffs, to decide whether the evidence demonstrates a violation by Wojeik and Savage, and whether such violation was in contravention of federal law that was clearly established at the time. See Behrens, 516 U.S. at 312-13, 116 S.Ct. 834; Kennedy, 439 F.3d at 1060.

IV. Qualified Immunity

We apply a two-part analysis in qualified immunity cases. Kennedy, 439 F.3d at 1060. “First, a court must determine whether — resolving all disputes of fact and credibility in favor of the party asserting the injury — the facts adduced at summary judgment show that the officer’s conduct violated a constitutional right.” Id. (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Second, “if the court determines that the conduct did violate a constitutional right, [the] second prong requires the court to determine whether, at the time of the violation, the constitutional right was ‘clearly established.’ ” Id. We conclude, viewing the facts in the light most favorable to Plaintiffs, that Plaintiffs have shown a violation of the constitutional right, grounded in the Fourteenth Amendment’s Due Process Clause, to be free of state-created danger. We nonetheless reverse the district court’s denial of summary judgment because it was not clearly, established, at the time'of Wojeik and Savage’s unconstitutional actions, that the state-created danger doctrine applied to claims based on physical conditions in the workplace.

A. Due Process

Plaintiffs rely on a line of cases holding that exposure by a state actor to a state-created danger violates due process. The individual Defendants rely on Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), in which the Supreme Court held that a state actor has no duty under the Due Process Clause to provide a safe workplace. We address each line of authority in turn, before turning to the interaction between the two.

1. State-Created Danger

The “general rule” is that a state actor is not liable under the Due Process Clause “for its omissions.” Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir.2000). There are two exceptions to this, general rule: “(1) when a ‘special relationship’ exists between the plaintiff and the state (the special-relationship exception); and (2) when the state affirmatively places the plaintiff in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger’ (the state-created danger exception).” Patel v. Kent Sch. Dist, 648 F.3d 965, 971-72 (9th Cir.2001) (citations omitted). We are concerned here with the state-created danger exception.

The exception is based in part on De-Shaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), in which the mother of a child who was beaten and permanently injured by his father brought suit against social workers and other local officials who had permitted the child to remain with his father despite receiving complaints about abuse. The Supreme Court held that the state had no freestanding constitutional obligation to protect the child from his abusive father. According to the Court, “the harms [the child] suffered occurred not while he was in the State’s custody, but while he was in the custody of his natural father” and the state “played no part in the[ ] creation” of the dangers the child faced. Id. at 201, 109 S.Ct. 998.

Relying on this language, our court and a majority of other circuits have held that a state actor can be held liable when that state actor did “play a part” in the creation of a danger. See Gormley v. Wood-El, 218 N.J. 72, 93 A.3d 344, 360 (2014) (“Most federal circuit courts now recognize the state-created-danger doctrine as a basis for a substantive-due-process violation.” (citing Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir.2006))); see also L.W. v. Grubbs (Grubbs I), 974 F.2d 119, 122 (9th Cir. 1992). Under the state-created danger doctrine, a state actor can be held liable for failing to protect a person’s interest in his personal security or bodily integrity when the state actor affirmatively and with deliberate indifference placed that person in danger. The doctrine holds state actors liable “for their roles in creating or exposing individuals to danger they otherwise would not have faced.” Kennedy, 439 F.3d at 1062.

Our circuit first recognized the state-created danger doctrine in Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989), in which a police officer pulled over a car in the early morning. After arresting the driver, the officer left the female passenger alone in a high crime area at 2:30 a.m. The passenger was subsequently attacked and raped. We held that the officer could be held liable under § 1983 for the attack and rape because, according to the plaintiffs evidence, the officer “affirmatively place[d] her in danger and then abandoned] her.” Id. at 596. Since Wood, we have repeatedly analyzed various constitutional allegations premised on the state-created danger doctrine. See, e.g., Campbell v. Wash. Dept. of Soc. Servs., 671 F.3d 837 (9th Cir.2011); Patel, 648 F.3d 965; Johnson v. City of Seattle, 474 F.3d 634 (9th Cir.2007); Kennedy, 439 F.3d at 1062; Lawrence v. United States, 340 F.3d 952 (9th Cir.2003); Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082 (9th Cir.2000); Huffman v. County of Los Angeles, 147 F.3d 1054 (9th Cir.1998); Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997); Grubbs I, 974 F.2d 119; Wood, 879 F.2d 583.

2. Collins

Wojeik and Savage contend that the Supreme Court’s decision in Collins precludes the application of the state-created danger doctrine in cases like this, where the danger is a physical condition in a government employee’s workplace. In Collins, an employee for a city sanitation department died of asphyxia after he entered a manhole to unclog a sewer line. His widow subsequently .brought a § 1983 action against the city, alleging “that her husband had ‘a constitutional right to be free from unreasonable risks of harm to his body, mind and emotions and a constitutional right to be protected from the City of Harker Heights’ custom and policy of deliberate indifference toward the safety of its employees.’ ” Collins, 503 U.S. at 126 n.9, 112 S.Ct. 1061. She further claimed that “[t]he city’s policy and custom of not training its employees and not warning them of the danger allegedly caused Collins’ death and thus deprived him of those rights.” Id. The Court summarized her claim as a “general allegation that the city deprived [Collins] of life and liberty by failing to provide a reasonably safe work environment.” Id. at 125-26, 112 S.Ct. 1061.

The Court held that the widow had not stated a cause of action. Reluctant to recognize new- due process claims that would overlap with tort claims under state law, the Court rejected “petitioner’s claim that the governmental employer’s duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause.” Id. at 126, 112 S.Ct. 1061. The Court held that “the Due Process Clause does not impose an independent federal obligation upon municipalities to provide certain minimal levels of safety and security in the workplace.” Id. at 130, 112 S.Ct. 1061. In short, Collins held “that the Constitution does not guarantee a right to a safe workplace.” Jensen v. City of Oxnard, 145 F.3d 1078, 1083 (9th Cir.1998).

3. Reconciling Collins and the State-Created Danger Doctrine in Workplace Safety Cases

The threshold question before us is whether Plaintiffs’ claim under the state-created danger doctrine is foreclosed by Collins. We conclude that it is not.

This conclusion is supported by the Collins decision itself. The plaintiff in Collins did not allege a due process claim under the state-created danger doctrine. Rather, she alleged a general due process claim to a safe workplace, alleging broadly “that the Federal Constitution imposes a duty on the city to provide its employees with minimal levels of safety and security in the workplace.” Collins, 503 U.S. at 126, 112 S.Ct. 1061. In rejecting the plaintiffs claim, the Court did not address the state-created danger doctrine. Indeed, its reasoning suggests that its decision might have been different had the plaintiff alleged a specific state-created danger due process claim. The Court explained that the plaintiff did “not claim that the city or any of its agents deliberately harmed her husband” and did “not even allege that [her husband’s] supervisor instructed him to go into the sewer when the supervisor knew or should have known that there was a significant risk that he would be injured.” Id. at 125,112 S.Ct. 1061.

Recognizing Plaintiffs’ authority to bring a state-created danger claim in this workplace safety case also accords with the general rule under due process doctrine. The general rule is that a state actor is not hable for his omissions or failure to act. See Collins, 503 U.S. at 126, 112 S.Ct. 1061; see also DeShaney, 489 U.S. at 196, 109 S.Ct. 998 (“[T]he Due Process Clauses generally confer no affirmative right to governmental aid.”); Campbell, 671 F.3d at 842 (“It is well established that although the Constitution protects a citizen’s liberty interest in her own bodily security, the state’s failure to protect that interest does not violate the Fourteenth Amendment.” (internal citation omitted)). The state-created danger doctrine is a recognized “exception” to this general rule. Patel, 648 F.3d at 972. In holding that the government had no affirmative obligation to provide a safe workplace, Collins appears to be an application of this general rule. It follows that the exceptions to the general rule, such as the state-created danger doctrine, should also apply to workplace safety cases.

Support for this conclusion comes from Grubbs I, in which we sustained a plaintiffs state-created danger claim even though it arose in the workplace. In Grubbs I, a case decided six months after Collins, a registered nurse working in an Oregon prison was raped by an inmate. The nurse brought a § 1983 action against her supervisors, and we held that she had stated a due process claim under the state-created danger doctrine. Defendants had assigned the particular inmate to work with the nurse even though they knew that (1) the inmate had a history of violence against women and was likely to assault a woman, (2) the nurse was likely to be alone with the inmate during her rounds, and (3) the nurse had not been informed at her hiring that she would be left alone with violent offenders. Grubbs I, 974 F.2d at 121. We distinguished Collins, writing that “[u]nlike Collins, [the nurse] alleges that the Defendants took affirmative steps to place her at significant risk.” Id. at' 122. We rejected the defendants’ contention that the nurse’s “status as a state employee should bar her claim.” Id.

Other courts agree that Collins does not foreclose application of the state-created danger exception in workplace safety cases. See Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 537 (6th Cir.2008) (noting that an employee can prevail against his or her employer, notwithstanding Collins, in state-created danger cases); Kaucher v. County of Bucks, 455 F.3d 418, 424-25, 431 (3d Cir.2006) (treating plaintiffs’ state created danger doctrine claim as separate and distinct from Collins); Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 55 n.9 (1st Cir.2006) (assuming the state-created danger doctrine could be a theory of liability notwithstanding Collins, but rejecting plaintiffs’ claim on the merits); Gormley, 93 A.3d at 362-63 (concluding that the defendants were not entitled to qualified immunity, rejecting the defendants’ reliance on Collins, and holding that the state-created danger doctrine applied). But see Slaughter v. Mayor & City Council of Baltimore, 682 F.3d 317, 321-23 (4th Cir.2012) (holding that Collins barred a plaintiffs claim against a fire department, even though plaintiff raised a state-created danger claim).

4. Applying the State-Created Danger Exception to the Facts of This Case

To prevail on a state-created danger due process claim, a plaintiff must show more than merely a failure to create or maintain a safe work environment. First, a plaintiff must show that the state engaged in “affirmative conduct” that placed him or her in danger. Patel, 648 F.3d at 974. This “affirmative conduct” requirement has several components. A plaintiff must show not only that the defendant acted “affirmatively,” but also that the affirmative conduct placed him in a “worse position than that in which he would have been had [the state] not acted at all.” Johnson, 474 F.3d at 641 (quoting DeShaney, 489 U.S. at 201, 109 S.Ct. 998); accord Kennedy, 439 F.3d at 1063. The affirmative act must have exposed the plaintiff to “an actual, particularized danger,”’ Kennedy, 439 F.3d at 1063, and the resulting harm must have been foreseeable, see Lawrence, 340 F.3d at 957. Second, the state actor must have acted with “deliberate indifference” to a “known or obvious danger.” Patel, 648 F.3d at 974 (quoting L.W. v. Grubbs (Grubbs II), 92 F.3d 894, 900 (9th Cir. 1996)). “Deliberate indifference” requires a “culpable mental state” more than “gross negligence.” Id.; see Grubbs II, 92 F.3d at 898.

Plaintiffs’ evidence, if true, satisfies both elements of a state-created danger claim. First, Pauluk’s 2003 transfer back to Shadow Lane was “affirmative” conduct. Pauluk clearly did not want to return to Shadow Lane and was transferred “involuntarily.” There is sufficient evidence in the record that either or both Wojcik and Savage were sufficiently involved in the decision to transfer that a reasonable jury could conclude they should bear some responsibility for that transfer. Further, the 2003 transfer back to Shadow Lane placed Pauluk in a “worse position” than before. Only after the transfer did Pauluk begin to suffer from mold-related health problems. The harm that Pauluk suffered was foreseeable, as Pauluk had opposed the transfer specifically on the ground that he feared he would become ill due to toxic mold exposure.

Second, construing the facts in the light most favorable to Plaintiffs, Wojcik and Savage .acted with deliberate indifference in exposing Pauluk to a known and obvious danger. Plaintiffs presented evidence that Wojcik and Savage were both aware of the CCHD’s long and tortured history of pervasive mold problems in multiple buildings, including the Shadow Lane facility. Plaintiffs’ evidence also suggests that Wojcik and Savage were on notice of the potential health problems associated with mold exposure, as Pauluk protested his transfer on mold-related grounds and at least one other employee working at Shadow Lane had previously suffered harmful health effects from mold exposure. Further, Plaintiffs presented evidence that Wojcik and Savage actively tried to conceal the amount of, and danger posed by, the mold. This evidence would support a reasonable.jury’s finding that Wojcik and Savage acted with deliberate indifference toward the danger posed by toxic mold in Shadow Lane to Pauluk’s health.

B. Clearly Established Law

Although we conclude that Plaintiffs presented sufficient evidence to show a due process violation under the state-created dánger doctrine,'qualified immunity shields Wojcik and Savage from a § 1983 damages suit unless Pauluk’s due process right was “clearly established at the time of the violation.” Espinosa v. City & County of San Francisco, 598 F.3d 528, 532 (9th Cir.2010). We conclude that the right was not clearly' established, and that Wojcik and Savage are therefore entitled to qualified immunity.

Plaintiffs argue that Pauluk’s constitutional rights were clearly established by our decisions in Wood and Grubbs I. We easily conclude that Wood does not clearly establish the due- process right that Plaintiffs assert. As mentioned above, in Wood we held that a police officer could be liable for a rape that occurred after he abandoned the plaintiff in a high crime area in the middle of the night. The core question in this appeal is whether Collins bars the application of the state-created danger doctrine in cases where the danger is a physical condition in the workplace. Because Wood did not involve a dangerous workplace, it does not speak to this question.

Grubbs I presents a closer analogy to this case. However, as recounted above, the danger in Grubbs I was a human actor who posed a known threat. In contrast, Pauluk was not harmed by a human agent, but rather by a physical condition in the building where he worked. This case is factually very similar to Collins, where, as here, the danger was a physical danger in the workplace. For the reasons given above, we conclude that Plaintiffs have stated a claim despite the fact that Pau-luk’s injury was caused by physical conditions in the workplace. But, because the Supreme Court in Collins declined to find a due process violation in a case with very similar facts, we cannot say that Wojcik and Savage were “on notice” that their conduct was unlawful under clearly established law. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

C. Remaining Monell Claim

The CCHD, a county agency, was not party to this interlocutory appeal and remains a defendant. A county agency is not entitled to qualified immunity and may be held liable for constitutional violations by its employees under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and related cases. We express no view on the possible Monell liability of the CCHD under the state-created danger doctrine, leaving that question to the district court in the first instance.

Conclusion

We hold that the state-created danger doctrine is a viable theory of due process liability under § 1983, even in workplace environments. However, in light of the factual similarity between this case and Collins, we hold that the district court erred in denying qualified immunity to Wojcik and Savage. We reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

MURGUIA, Circuit Judge,

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- 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 its citizens against invasion by private actors,” id. at 195, 109 S.Ct. 998. In the same breath, however, the Court also recognized that there may be circumstances in which the government must provide protection because it “played [a] part in the[ ] creation” of a dangerous situation or did something “to render [an individual] more vulnerable to” a pre-exist-ing danger. Id. at 201, 109 S.Ct. 998. It is when “the state has affirmatively placed the plaintiff’ in harm’s way that a reciprocal duty to protect may attach. Ketchum v. Alameda County, 811 F.2d 1243, 1247 (9th Cir.1987) (emphasis added).

But inherent in our characterization of the state-created danger doctrine as an “exception” to the ordinary rule, see Patel v. Kent Sch. Dist., 648 F.3d 965, 972 (9th Cir.2001), is the principle that the government does not violate the Constitution “whenever someone cloaked with state authority causes harm,” County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The substantive component of the Due Process Clause only prevents the state from engaging in conduct “intended to injure in some way unjustifiable by any government interest.’’ Id, at 849, 118 S.Ct. 1708. “[0]nly the most' egregious official conduct” crosses the constitutional line so as .to constitute a deprivation of due process. Id. at 846, 118 S.Ct. 1708. To this end, we have made clear that gross negligence on the part of the government actor is not enough. Patel, 648 F.3d at 974; L.W. v. Grubbs (“Grubbs II), 92 F.3d 894, 900 (9th Cir.1996); see also Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (“[Liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”). As the opinion observes, an individual can recover on a § 1983 claim under the state-created danger doctrine only by showing that the state officials in question acted with “deliberate indifference” to a “known or obvious danger” that they had an affirmative role in subjecting the plaintiff to. Patel, 648 F.3d at 974; Grubbs II, 92 F.3d at 900.

As my concurring colleague notes, Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), on which defendants primarily rely, does hot itself speak to the scope of the state-created danger doctrine. Nevertheless, it is easy to situate its holding within the aforementioned framework. In Collins, the Supreme Court applied the general rule that state actors are liable only for actions that violate constitutional rights, not omissions, and concluded that the Due Process Clause does not impose a freestanding duty upon a municipality to provide its employees with certain minimal working conditions. 503 U.S. at 125-30, 112 S.Ct. 1061; cf. Deshaney, 489 U.S. at 195, 109 S.Ct. 998 (“The [Due Process] Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.”). At the same time, however, nothing in Collins abrogated the Constitution’s guarantee of freedom from unreasonable state-created dangers. In other words, public employees — like any citizen — can recover under the state-created danger doctrine for workplace injuries that are severe enough to offend due process — provided, of course, that the employee shows that a state official affirmatively created the unsafe working environment and acted with the requisite deliberate indifference in subjecting the employee to that workspace. See, e.g., L.W. v. Grubbs (“Grubbs 974 F.2d 119, 122 (9th Cir.1992) (finding nurse’s status as prison employee did not bar her § 1983 claim after she was raped by a violent sex offender after being assigned to work alone in the medical clinic with him).

With these principles in mind, I turn to the issue on which I diverge from the opinion: whether two municipal supervisors violated a federal constitutional obligation after an employee died from a generalized exposure to toxic mold.

II.

As noted above, the state-created danger doctrine requires affirmative action by state officers; the state’s failure to protect an individual from an unsafe environment does not give rise to liability under the state-created danger doctrine. Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir.2006). We have clarified that “affirmative conduct” means that the state’s actions must have placed the plaintiff in a “worse position than that in which he would have been had it not acted at all.” Johnson v. City of Seattle, 474 F.3d 634, 641 (9th Cir.2007) (quoting DeShaney, 489 U.S. at 201, 109 S.Ct. 998); see also Kennedy, 439 F.3d at 1062 (“[W]e examine whether-the [official] left the person in a situation that was more dangerous than the one in which they found him.” (citation omitted)). In the context of this case, I believe that there are two reasons why the plaintiffs’ allegations fail to satisfy this standard — one factual, one jurisprudential.

A.

First, the universe of evidence from the summary judgment record that a reasonable jury could attribute to Wojcik and Savage is scant. Accepting the plaintiffs’ version of events as true, as we must at this interlocutory stage, Pauluk was a veteran employee of the CCHD who died after being exposed to toxic mold at Shadow Lane, where he was reassigned over his objections in 2003. It is undisputed that Shadow Lane suffered from structural deficiencies in the building that let in rainwater.

During his tenure there, Pauluk repeatedly complained about mold to the intermediate supervisors in his chain of command, which included the defendants Wojcik and Savage, both of whom also worked at Shadow Lane. Specifically, Pau-luk requested to transfer out of Shadow Lane or to move desks within the building. Whenever Pauluk would make such a request, it would be sent to his immediate boss and then “funnel[ed]” 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 “channels]” when making a transfer request. All of Pauluk’s transfer requests were ultimately denied. Savage was told that transferring Pauluk would result in “chaos to the overall business of the Health District” and that Pauluk’s position involved a “main office function”— the main CCHD office being the Shadow Lane facility. Nevertheless, in 2003, in response to Pauluk’s concerns, ceiling tiles were removed and tested for mold. Savage also assisted Pauluk in 2004 with taking photographs of suspected mold growth and forwarding it to the administration, and Wojcik sent an e-mail to his chain of command seeking to have the materials gathered by Savage and Pauluk tested. As a result of their efforts, maintenance staff removed and replaced four stained ceiling' tiles and one fluorescent lens near Pau-luk’s work station. In the end, however, Pauluk left Shadow Lane in October 2005 due to medical problems associated with “[tjoxic mold exposure.” Unfortunately, Pauluk’s health continued to deteriorate and he died in 2007.

The family’s primary contention is that Wojcik and Savage failed to protect Pauluk from exposure to mold by not transferring him away from Shadow Lane. But keeping Pauluk at a facility that was infested with mold is not “affirmative action.” See Kennedy,. 439 F.3d at 1062 (“In examining whether an officer affirmatively places an individual in danger ... we examine whether the officer[ ] left the person in a situation that was more dangerous than the one in which they found him.”). The family also argues that Wojcik and Savage acted affirmatively by denying Pauluk’s requests to transfer. However, these actions fail the “no worse position” test too: regardless of whether defendants denied Pauluk’s requests or simply ignored them, Pauluk would have remained in the same position' — purportedly being exposed to toxic mold at Shadow Lane. See Johnson, 474 F.3d at 641 (concluding that city’s decision to switch from a more effective crowd-control procedure to a less effective plan was not “affirmative action,” precluding liability to plaintiffs who were injured during a riot at a Mardi Gras celebration).

The opinion nevertheless concludes that Wojcik and Savage’s decision to transfer Pauluk back to the Savage Lane facility in 2003 constitutes the requisite affirmative action. But in opposition to the defendants’ motion for summary judgment, plaintiffs insisted that CCHD exposed Pauluk to mold on two other occasions prior to 2003 — in 1998 and 2000. See Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, Pauluk v. Savage, No. 07-CV-1681 at *10 (D. Nev. Oct. 7, 2013), ECF No. 131 (“[T]he record evidence shows CCHD affirmatively placed Dan Pauluk in harms way on no less than three (3) occasions — in 1998, 2000 and 2003— then the Defendants have failed to meet their burden on summary judgment in that the Defendants affirmatively and with deliberate-indifference engaged in conscience-shocking conduct.”). If Pauluk’s risk of illness from mold exposure predated his 2003 reassignment to Shadow Lane, then Wojcik and Savage could not have placed Pauluk in any worse of a position than if he had never been transferred. Therefore, even reading the record in the light most favorable to the plaintiffs, plaintiffs’ claim fails as a matter of law because, after the 2003 transfer, Pauluk was in “no worse position” than before. See Johnson, 474 F.3d at 641.

B.

I further disagree that moving Pauluk back to Savage Lane amounts to “affirmative action” in the constitutional sense. The previous circumstances in which this court has grappled with the state-created danger doctrine do not remotely resemble the facts of this case. Every instance in which we have permitted a state-created danger theory to proceed has involved an act by a government official that created an obvious, immediate, and “particularized danger” to a specific person known to that official. See Kennedy, 439 F.3d at 1067 (explaining that “affirmative action” requires the state actor to “create[ ] an actual, particularized danger [the injured party] would not otherwise have faced”). We have also extended the doctrine only to encompass claims in which the official’s act caused the harm, as opposed to merely increasing a risk to the plaintiff.

In this circuit, the state-created danger doctrine begins with Wood v. Ostrander, in which the court held that police officers who had stranded a woman in a high crime area at 2:30 in the morning could be liable under § 1983 after the woman was sexually assaulted. 879 F.2d at 588-90. Similarly, in Penilla v. City of Huntington Park, we denied qualified immunity to officers who had responded to a 911 call, found Penilla to be in grave need of medical care, and yet canceled the request for paramedics, broke the lock and door jamb on the front door of Penilla’s residence, moved him inside the house, locked the door, and left him to die. 115 F.3d 707, 708 (9th Cir. 1997). And, in Munger v. City of Glasgow, we found evidence of affirmative action by the state where police officers ejected an intoxicated patron from a bar wearing only a t-shirt and jeans in sub-freezing temperatures; the patron died from hypothermia. 227 F.3d 1082,1087 (9th Cir.2000).

In Kennedy v. City of Ridgefield, we likewise affirmed the denial of qualified immunity to a police officer who had informed the plaintiffs neighbor — an individual with known violent tendencies and against whom the plaintiff had made allegations of child abuse — that he was being investigated for molesting the plaintiffs daughter. 439 F.3d at 1057, 1067. The officer had promised to warn the plaintiff before approaching her neighbor, and assured her that police would patrol her neighborhood. Id. at 1058. The neighbor later broke into the plaintiffs house and shot her and her husband while they were sleeping. Id. at 1058. The Kennedy court explained that the officer had “affirmatively created an actual, particularized danger [the family] would not otherwise have faced” by confronting the suspect without notifying the Kennedy family as promised. Id. at 1063.

Kennedy relied substantially on our’s holding in Grúbbs I, in which we found that a nurse in a medium-security correctional institution had stated a claim under the Fourteenth Amendment after an inmate with known violent propensities raped and terrorized her. Grubbs I, 974 F.2d at 120-22. State officials had assigned the inmate to work in the medical clinic with the plaintiff and had failed to inform her that she would be left alone with violent sex offénders. Id. at 120. The Grubbs I court concluded that the plaintiff had adequately alleged that the defendants’ acts had “independently created the opportunity for and facilitated [the inmate’s] assault on her” and allowed her claim to proceed to trial. Id. at 122. The court emphasized that, in assigning the inmate to work with the plaintiff while also misrepresenting the risks attending to the plaintiffs work, the defendants had created the danger by preventing the plaintiff from defending herself or averting an attack. Id. at 122.

The common elements in all of these cases that justified our imposing liability were the acuteness of the danger to the plaintiff, the temporal proximity between the official’s act and the injury, and the clear traceability of the injury to the official’s conduct. The facts here are markedly different: the plaintiffs have alleged that Wojcik and Savage violated Pauluk’s constitutional rights by moving him into a municipal building where he was exposed to toxic mold over the course of several years — along with countless other employees, including the defendants. Wojcik and Savage’s decision to reassign Pauluk more closely resembles the cases in which this court has declined to find a cognizable due process violation due to the unforeseeable nature of the' plaintiffs’ injuries and the fact that the danger facing the plaintiff existed independent of state action. See, e.g., Patel, 648 F.3d at 976 (holding no rational fact finder could conclude that a teacher acted with deliberate indifference to her student’s well-being because the teacher “did not know there was any immediate danger in allowing [the plaintiff] to briefly use the next-door bathroom alone”); Huffman v. County of Los Angeles, 147 F.3d 1054, 1061 (9th Cir.1998) (finding no liability where an individual was shot during a barroom brawl' by an off-duty deputy on the grounds that the injury was an unforeseeable consequence of a county policy requiring off-duty officers to carry a firearm); see also Lawrence v. United States, 340 F.3d 952, 957 (9th Cir.2003) (“[I]n each of the cases in which we have applied the danger-creation exception, ultimate injury to the plaintiff was foreseeable.”). The link between the challenged conduct and Pauluk’s untimely death is simply too attenuated to support Wojcik and Savage’s liability.

III.

In addition to showing affirmative conduct, the family must also show that the defendants acted with “deliberate indifference” to Pauluk’s health and safety. We have repeatedly affirmed that the standard for deliberate indifference is demanding; it requires a showing that the “defendant recognizes the unreasonable risk and actually intends to expose the plaintiff to such risks without regard to the consequences to the plaintiff.” Grubbs II, 92 F.3d at 899’ (citation omitted); see also Patel, 648 F.3d at 974 (“Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” (internal quotation marks omitted)). The defendant is liable if he “knows that something is going to happen but ignores the risk.” Grubbs II, 92 F.3d at 900 (first emphasis added).

The opinion concludes that the deliberate indifference requirement is satisfied because Wojcik and Savage were aware that the CCHD had a history of pervasive mold problems throughout multiple buildings, and that Shadow Lane suffered from water damage. There is some evidence that one other employee working in Shadow Lane suffered from the ill-effects of mold exposure before Pauluk was transferred back to the facility.

■I disagree that these facts, alone, demonstrate Wojcik and Savage’s deliberate indifference to any danger Pauluk was exposed to at Shadow Lane. In Penilla, by contrast, the officers knew Penilla was in grave condition and required prompt medical attention, yet they did the opposite of what a reasonable person would expect them to do. In fact, the. officers made the situation worse by calling off medical assistance already en route. Penilla, 115 F.3d at 708. Kennedy and Grubbs both concerned circumstances in which the government official actively concealed a known risk of harm, from the plaintiff. Here, at most, Wojcik and Savage knew that a workplace free of mold was preferable to one with piold, but do not appear to have been aware that moving Pauluk to a contaminated building would cause him to become deathly ill. See Patel, 648 F.3d at 975-76 (refusing to find liability where extent of the risks were unknown to the defendant). Further, the family admits that Savage “assisted] Pauluk” in his attempts to report the mold problems by “removing ceiling tiles, looking above the ceiling tiles and taking photographs in the area where Pauluk’s desk was loeat[ed].” This indicates that Savage was sensitive to Pauluk’s complaints and wanted them to be resolved. Wojcik demonstrated similar sympathy towards seeing Pauluk’s concerns addressed. Without the requisite mental state, there can be no constitutional violation premised on state-created danger.

IV.

As in all state-created danger cases, the facts before us are undeniably tragic. But the Fourteenth Amendment is not a panacea for all wrongs. The Supreme Court “has always been reluctant to expand the concept of substantive due process,” and the Fourteenth Amendment “does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.” Collins, 503 U.S. at 125, 128, 112 S.Ct. 1061; see also Lewis, 523 U.S. at 848, 118 S.Ct. 1708 (“[T]he Fourteenth Amendment is not a ‘font of tort law to be superimposed upon whatever systems may already be administered by the States.’ ”). To the extent Pauluk has a remedy, I believe it is properly found under Nevada state law. See Patel, 648 F.3d at 976 (“Whatever liability [the defendant] may face, that liability must come from state tort law, not the Fourteenth Amendment.”). Because I cannot join my esteemed colleagues in their sweeping holding that the facts alleged establish a Fourteenth Amendment violation by Wojcik and Savage, I respectfully dissent from that portion of the opinion.

NOONAN, Circuit Judge,

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 have emphasized that in order for liability to attach under the state-created danger doctrine, the state actor must knowingly create “an actual, particularized danger.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1063 (9th Cir. 2006). However, the facts of these cases make clear that the state’s actions need not be the only but-for cause of the ultimate harm, and that its foreseeability need not be certain to be actionable.

Indeed, in Wood, it was far from certain that the plaintiff would be accosted on her way home; furthermore, her decision to accept a ride from a stranger in a high-crime area was an intervening act that was an independent cause of the harm she sustained. Yet this court had no trouble concluding that the causal nexus between the officer’s conduct and the harm endured was sufficiently close to warrant holding the state liable, characterizing it as “a matter of common sense.” Wood, 879 F.2d at 590.

In Kennedy, an officer was called upon to investigate an allegation made by Jay and Kimberly Kennedy that their thirteen year-old neighbor, Michael Burns, had molested their daughter. 439 F.3d 1055, 1057 (9th Cir.2006). Kimberly informed the officer that she believed Burns was violent and lived in an unstable household. Id. at 1057-58. In response, the officer assured her that she would be given notice prior to any police contact with Burns. Id. at 1058. A few weeks later, the officer drove to Burns’ house and informed him of the molestation allegations made by the Ken-nedys, and immediately after, drove to the Kennedy house to update them on the situation. When Kimberly expressed her displeasure with the officer for failing to provide her with advance notice of his contact with Burns as he had promised, the officer assured her that the police would patrol the area and “keep an eye” on Burns. Id. The police never conducted the promised patrol. The next morning, Burns broke into the Kennedys’ home and shot them in their sleep, killing Jay and severely wounding Kimberly. Id. at 1057.

While Burns “had a predilection for violence,” id. at 1064, it was by no means certainly foreseeable that even a violent thirteen year-old could commit such a heinous act. However, in affirming the denial of qualified immunity to the officer, this court clarified that “for a danger to exist, the exact injury inflicted by a third party [need not] have been foreseeable”; rather, liability attaches where the state actor places a plaintiff “in a situation more dangerous than the one she already faced.” Id. at 1064 n.5; see also Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir.2000).

In the case at bar, the facts as alleged state that defendants had full knowledge of the mold problem at Shadow Lane in 2003 when, over Pauluk’s objections, it transferred him there. Pauluk was therefore willfully exposed to a mold spore infestation, and all its attendant health risks, with every breath he took. It would be a cruel irony to hold that a harm that strikes at the very heart of a state agency’s core competency is not sufficiently “particularized” or “foreseeable” to it for purposes of the state-created danger doctrine. Indeed, the harms suffered in Wood and Kennedy were arguably more attenuated than what Pauluk faced. In those cases, the officers’ conduct only created an increased probability of harm to the plaintiffs; conversely, it was certain that Pauluk would suffer at least some harm due to the inevitable inhalation of mold.

No basis exists to distinguish this case from Wood, Kennedy, or any other published opinion of this court upholding the applicability of the state-created danger doctrine. I would affirm the district court’s denial of summary judgment. I therefore concur with the majority’s conclusion that, viewing the facts in the light most favorable to plaintiffs, they have shown a violation of the Fourteenth Amendment under the state created danger doctrine.

II.

In Collins v. City of Harker Heights, Tex., the plaintiffs deceased spouse, an employee of a municipal sanitation department, died from asphyxiating on noxious fumes after entering a manhole to fix a sewer line. 503 U.S. 115, 117, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Collins brought suit under 42 U.S.C. § 1983, alleging that the City violated the substantive Due Process Clause of the Fourteenth Amendment by failing to maintain a minimal level of workplace safety. The Supreme Court rejected this argument, holding that the Fourteenth Amendment does not encompass a generalized duty to “provide [government] employees with minimal levels of safety and security in the workplace.” Id. at 126, 112 S.Ct. 1061.

While Collins and Pauluk both died from •inhaling poisonous air in the workplace, the similarity between their cases ends there. Indeed, Collins does not ever discuss the state-created danger doctrine— the theory upon which Pauluk’s entire case hinges. To hold that Collins defines the contours of a doctrine that it does not even mention would expand its holding far beyond what the Court could have reasonably intended.

The Collins Court emphasized that the plaintiff “does not claim that the city or any of its agents deliberately harmed her husband. In fact, she does not even allege that his supervisor instructed him to go into the sewer when the supervisor knew or should have- known that there was a significant risk that he would be injured.” Id. at 125, 112 S.Ct. 1061. Pauluk’s case therefore presents the precise facts that the Collins Court deemed were inapplicable to its analysis and holding. Accordingly, Collins does not counsel against affirming the district court here. Indeed, the majority appears to concede that Collins is distinguishable, but concludes that even assuming Pauluk has stated a 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 was unlawful under clearly established law.” Majority Op. at 1126.

The law governing the state-created danger doctrine is “clearly established” by the controlling precedent discussed above such that “any reasonable official in [defendants’] shoes would have understood that [they were] violating it.” City & Cty. of S.F. v. Sheehan, — U.S. ——, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015) (citations omitted). Indeed, in light of these cases, the constitutional question has been “placed .. .beyond debate.” Id. A case which presents some factual similarities but lacks any legal nexus to the state-created danger doctrine cannot revive that debate, nor can it serve to convolute what this court has defined with pellucid clarity. Collins does not control here. Accordingly, I dissent.

      . I note at the outset that the constitutional issue on which I dissent is not dispositive to this appeal, and I would not have reached it at all — -particularly in light of the fact that the liability of the entity who appears the most responsible for the decedent’s injuries — the Clark County Health District ("CCHD”) — remains outstanding. As a municipal entity, the CCHD has no immunily under § 1983 and is not a party to this appeal. See Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). CCHD’s potential liability under Monell is therefore not an' issue that is presently before us on interlocutory review from the district court's denial of qualified immunity to the individually named defendants.

      . The plaintiff in Collins had brought suit after her husband, a city employee within the sanitation department, died of asphyxia in a manhole where he was fixing a sewer line. 503 U.S. at 117, 112 S.Ct. 1061. The employee's widow alleged that the city had violated the decedent’s liberty interest by failing to train its employees about the dangers of working in sewer lines and manholes or provide adequate safety equipment at job sites. Id. The Collins Court firmly rejected the plaintiffs theory of liability, concluding that nothing in the Constitution imposes a duty on municipal entities to provide a reasonably safe work environment for its employees. Id. at 126, 112 S.Ct. 1061. Nor did the city’s purported failure to train or warn its employees amount to an omission that the Supreme Court believed could be properly characterized as arbitrary or conscience-shocking in the substantive-due-process sense. Id. at 128, 112 S.Ct. 1061. In no uncertain terms, the Supreme Court held that “[t]he Due Process Clause ... does [not] guarantee municipal employees a workplace that is free of unreasonable risks of harm ."Id. at 129, 112 S.Ct. 1061.

      . The court never had to evaluate the qualified immunity question in Grubbs, which came to the court on an appeal from a motion to dismiss. Following a trial, however, the jury found that the supervisor who was responsible for creating the danger to the plaintiff had acted only with gross negligence, but-not with the deliberate indifference necessary to sustain liability. Grubbs II, 92 F.3d at 895.

      . The opinion’s assertion that Wojcik and Savage actively tried to conceal the existence. of mold is not supported by the record.


author: WARDLAW, Circuit Judge:

text:
    Jason Eugene DEOCAMPO; Jesus Sebastian Grant; Jaquezs Tyree Berry, Plaintiffs-Appellees, v. Jason POTTS, individually, and in his capacity as a Vallejo Police Officer; Eric Jensen, individually, and in his capacity as a Vallejo Police Officer, Defendants-Appellants, and Jeremy Patzer, individually, and in his capacity as a Vallejo Police Officer, Defendant.
    No. 14-16192
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 10, 2016— San Francisco, California
    Filed September 8, 2016

      Austin Byrne Conley (argued), Gibbons and Conley, Walnut Creek, California; Noah G. Blechman and James V. Fitzger-aid, III, McNamara, Dodge, Ney, Beatty, Slattery, Pfalzer, Borges & Brothers LLP, Walnut Creek, California; Claudia M. Quintana, Deputy City Attorney, City of Vallejo, Vallejo, California; for Defendants-Appellants.
    Ayana Cuevas Curry (argued) and John L. Burris, Law Offices of John L. Burris, Oakland, California, for Plaintiffs-Appel-lees.
    Krista MacNevin Jee, James R. Touchstone, and Martin J. Mayer, Law Offices of Jones & Mayer, Fullerton, California, for Amici Curiae California State Sheriffs’ Association, California State Police Chiefs’ Association, and California Peace Officers’ Association.
    Before: JOHN T. NOONAN, KIM McLANE WARDLAW, and RICHARD A. PAEZ, Circuit Judges.
   OPINION

WARDLAW, Circuit Judge:

Does a municipality’s bankruptcy plan of adjustiftent automatically discharge a judgment against individual officers for excessive force by operation of a California statute generally requiring public entities to defend and indemnify their employees for actions within the scope of their employment?

Like many a city in the wake of the 2007-08 financial crisis, the city of Vallejo, California found itself burdened by mounting debts as its tax base shrank. In 2008, Vallejo responded by petitioning for Chapter 9 bankruptcy, a form of relief available only to municipalities. Some two years after the bankruptcy court confirmed Vallejo’s debt-adjustment plan, a federal jury found that two police officers employed by Vallejo used constitutionally excessive force when they arrested Jason Eugene Deocampo. In accordance with the verdict, the district' court- entered a judgment for money damages against the officers in their personal capacities, and awarded Deocampo his attorney’s fees.

Under California law, Vallejo is generally obligated to indemnify its employees for claims against them arising from their employment. We hold that where, as' here, the plan confirmed by the bankruptcy court did not expressly encompass claims or judgments against the city’s employees, the indemnification statutes do not subject such claims or judgments to adjustment by operation of law nor by the fact of the public employment itself. We affirm the district court’s denial of the officers’ Rule 60 motion for relief from judgment, and agree with the district court that neither the judgment nor attorney’s fee award was discharged by Vallejo’s bankruptcy proceedings.

I.

A. Vallejo police use excessive force against Deocampo.

On March 28, 2003, at approximately 8:00 p.m., Deocampo, Jesus Sebastian Grant, and Jaquezs Tyree Berry (collectively, “Plaintiffs”) suffered a violent encounter with police officers employed by Vallejo. According to Plaintiffs, this encounter began when, Officers Jason Potts and Jeremy Patzer stopped Berry on the street. With no justification, they kicked and slammed him to the ground, causing him to hit his head on a wooden fence. Deocampo and Grant approached the officers, asked why they were attacking Berry, and informed them that their actions were wrong. Officer Potts told them to go away, and Deocampo complied by walking away from him. Officer Potts followed Deocampo, and shoved him. Officer Potts and a third officer, Eric Jensen (“the Officers”) beat Deocampo with their batons, and refused to stop even when he raised his hands in the air and said he would leave. The Officers also pepper-sprayed and beat Grant. Plaintiffs were falsely arrested and charged with resisting, delaying, and obstructing the police.

On March 30, 2006, Plaintiffs filed this action against Vallejo, Vallejo’s chief of police, the Officers, and Patzer. Plaintiffs asserted excessive-force and other constitutional claims against the Officers and Patzer under 42 U.S.C. § 1983; Monell claims against Vallejo and its chief of police, see Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); and various state-law causes of action. On July 24, 2007, the parties stipulated to the dismissal with prejudice of Plaintiffs’ Monell claims and of Vallejo and its chief of police as defendants.

B. Vallejo petitions for bankruptcy.

Subsequently, on May 23, 2008, Vallejo filed for Chapter 9 bankruptcy. This was, at the time, one of the largest municipal bankruptcies in history, and California’s largest since Orange County filed for bankruptcy in 1994. See Alison Vekshin & Michael B. Marois, Bankrupt Vallejo, California, Approves Restructuring, Bloom-berg (Dec. 1, 2010).

According to the City of Vallejo, a number of converging forces rendered the city insolvent and necessitated its bankruptcy filing. Vallejo derived most of its revenues from property taxes, sales taxes, assessments, and fees. See In re City of Vallejo, No. 08-26813-A-9, 2008 WL 4180008, at *2 (Bankr. E.D. Cal. Sept. 5, 2008), aff'd, 408 B.R. 280 (9th Cir. BAP 2009). “Recent adverse economic conditions” caused Valle-jo’s revenues to decrease. Id. These conditions included not only those predictably associated with the financial crisis, but such contingencies as the closure of a Wal-Mart that had been a large source of sales tax revenue; the loss of shared revenue from a Six Flags/Marine World after Val-lejo’s ownership interest in the amusement park was bought out; and the unexpected retirement of several police officers and firefighters, who became entitled to millions of dollars in unbudgeted retiree payouts. Id. at *2, *5.

Vallejo implemented austerity measures, including cutting funds to its senior center, library, parks, symphony, and convention and visitors bureau; using vehicles and equipment well beyond their expected lives; and reducing employee rolls by 87 full-time positions. Id. at *3. Nevertheless, Vallejo’s “ability to provide minimal levels of service to its residents and provide for their basic health and safety” was seriously threatened. Id. at *5. Pension obligations and benefits due under collective bargaining agreements with several unions could not easily be adjusted. Id. at *3. California laws made it difficult for Vallejo to raise taxes or borrow funds. As the Bankruptcy Appellate Panel noted, “Proposition 13 capped property tax rates to 1% of full cash value. Proposition 218 limited Vallejo’s ability to raise any other taxes without a majority vote. Article XVI, section 18 of the California Constitution also restricted its ability to borrow: funds.” In re City of Vallejo, 408 B.R. at 286 & n.7. Over the objections of several creditors, the Bankruptcy Court for the Eastern District of California found Vallejo eligible to file a Chapter 9 petition, and the Bankruptcy Appellate Panel affirmed. Id. at 299.

Vallejo was not alone among cities severely affected by the 2007-08 financial crisis. 2008 and the years since have witnessed a small but impactful resurgence in municipal bankruptcy filings. While most have been commenced by special-purpose districts, such as hospital, utility, or sanitation authorities, several cities have filed for Chapter 9 protection, including San Ber-nardino, California; Stockton, California; Hillview, Kentucky; and Detroit, Michigan. See Bankrupt Cities, Municipalities List and Map, Governing (last updated Aug. 21, 2015).

Scholars have criticized the very concept of municipal bankruptcy as it is codified by Chapter 9 for a variety of reasons, including that it harms creditors and makes future lending unattractive, and that it hamstrings more flexible state-law solutions. See Omer Kimhi, Chapter 9 of the Bankruptcy Code: A Solution in Search of a Problem, 27 Yale J. Reg. 351, 384-85 (2010) (advancing the former argument); Michael W. McConnell & Randal C. Picker, When Cities Go Broke: A Conceptual Introduction to Municipal Bankruptcy, 60 U. Chi. L. Rev. 425, 494-95 (1993) (advancing the latter). Yet experts have warned that the surge in municipal bankruptcies that began during the financial crisis may not be over. See, e.g., William C. Dudley, President & Chief Exec. Officer, Fed. Reserve Bank of N.Y., Opening Remarks for the Chapter 9 and Alternatives for Distressed Municipalities and States Workshop (Apr. 14, 2015), (opining that, while high-profile bankruptcy filings like Detroit’s “have captured a considerable amount of attention ... they may foreshadow more widespread problems than what might be implied by current bond ratings”).

Our cáse law construing Chapter 9 is scant, and this appeal confronts us with a novel legal issue, of the kind that often surfaces when changing social and economic conditions awaken dormant statutes. But Chapter 9 has awakened, and we do not presume further disputes over its interpretive and practical complexities will remain long at rest.

C. Vallejo’s bankruptcy filing results in a stay of Deocampo’s lawsuit.

On May 30, 2008, one week after Vallejo’s initial bankruptcy filing, Defendants filed a notice stating that this action was automatically stayed pursuant to 11 U.S.C. § 362. The district court — perhaps recognizing the oddity that Vallejo’s bankruptcy could automatically stay an action in which Vallejo was no longer a party, and neither the plaintiffs nor the defendants were debtors — ordered the “non-bankrupt parties [to] show cause why this action should not be stayed in its entirety....” In response, the parties stipulated in writing that Vallejo’s bankruptcy filing triggered an automatic stay “pursuant to 11 U.S.C. Section 362,” though they did not elaborate as to why. On August 5, 2008, the district court entered the parties’ jointly submitted stipulation and proposed order, and stayed the proceedings. The case would remain stayed for more than four years.

About a week after his case was stayed, Deocampo filed a proof of claim in Vallejo’s pending bankruptcy proceedings. This stated that the amount of his claim was $300,000, and the basis for the claim was “Personal Injury.” The Officers did not file any proofs of claim in the bankruptcy proceeding, for anticipated indemnity, defense costs, or otherwise; nor did Vallejo’s bankruptcy court filings list the Officers or any other employees as potential creditors on the basis of defense or indemnification obligations.

D. Vallejo’s plan of adjustment is confirmed by the bankruptcy court.

Subsequently, Vallejo filed a Second Amended Plan for the Adjustment of Debts (“Plan”) with the bankruptcy court. Vallejo anticipated that, under that Plan, litigation claimants would recover approximately 20 to 30 percent of the value of any claims below $500,000. On August 4, 2011, the bankruptcy court entered an order confirming the Plan, which became binding on all creditors on November 1, 2011.

E. Deocampo’s lawsuit against the officers is reinstated following Vallejo’s bankruptcy plan confirmation.

The district court lifted the stay on Plaintiffs’ case on August 24, 2012. Following a 13-day trial, the jury returned a special verdict in favor of Deocampo. The jury found that the Officers had unreasonably seized Deocampo by using excessive force against him during the course of the arrest. It awarded Deocampo $50,000 in compensatory damages. On August 23, 2013, the district court entered judgment in accordance with the jury verdict. The court subsequently awarded Deocampo costs and attorney’s fees under 42 U.S.C. § 1988.

The Officers then moved for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). They contended the judgment and fee award (collectively, the “Judgment”) were effectively claims against Vallejo that were subject to adjustment under the Plan. The district court denied the Rule 60(b) motion, reasoning that, because Deocampo sought and obtained relief against the Officers in only their personal, rather than official, capacities, the Judgment was not discharged by Vallejo’s bankruptcy. The Officers timely appealed.

II.

We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the district court’s decision to deny a Rule 60(b) motion, and review de novo any questions of law underlying the decision to deny the motion. Lai v. California, 610 F.3d 518, 523 (9th Cir. 2010).

III.

A. Chapter 9 bankruptcy.

The Constitution empowers Congress to establish “imiform Laws on the subject of Bankruptcies throughout the United States.” U.S. Const, art. I, § 8, cl. 4. Congress first entered the field of municipal bankruptcy in the 1930s, when, confronted by the Great Depression, it enactéd the precursor to Chapter 9. See Puerto Rico v. Franklin Cal. Tax-Free Trust, — U.S. -, 136 S.Ct. 1938, 1944, 195 L.Ed.2d 298 (2016). In the late 1970s, also a time of economic hardship for local governments, Congress enacted the most recent major overhaul to Chapter 9. See generally Kim-hi, supra, at 366-69. The House Report observed that “the term ‘bankruptcy’ in its strict sense is really a misnomer for a [Cjhapter 9 case.” H.R. Rep. No. 95-595, at 263 (1977). Thus, although the “general policy underlying” Chapter 9 is to give the municipal debtor “a breathing spell from debt collection efforts in order that it can work out a repayment plan with its creditors,” the municipal debtor, unlike others, “cannot liquidate its assets to satisfy its creditors totally ánd finally.” Id. Further, “there are no involuntary [Cjhapter 9 cases,” id. at 394, and Chapter 9 proceedings may be commenced only by a municipality that “desires to effect a plan to adjust [its] debts” and files a voluntary petition to do so, with authorization from the state. 11 U.S.C. §§ 109(c)(4), 301, 921. It is not necessary that all or even a majority of creditors consent to a municipal plan of adjustment. 11 U.S.C. § 109(c)(5). For a plan to be confirmed, the bankruptcy court must find, inter alia, that “the plan is in the best interests of creditors and is feasible.” 11 U.S.C. § 943(b)(7).

When a Chapter 9 debtor’s plan has been confirmed by the bankruptcy court, and certain other procedural requirements have been fulfilled, see 11 U.S.C. § 943(b), the debtor is generally discharged from debts that have not been “excepted from discharge by the plan or order confirming the plan.” 11 U.S.C. § 944(b), (c)(1). The discharge:

(1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section ... 944 ... of this title, whether or not discharge of such debt is waived; [and]
(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived.

11 U.S.C. §§ 524(a)(1) — (2), 901.

B. The Plan did not adjust or discharge the Judgment against the Officers.

1. California’s statutory indemnification framework.

The Officers do not contend that Vallejo’s bankruptcy discharge wiped out the Judgment against them entirely. Rath- • er, it is their position that the claim for which Deocampo filed proof in Vallejo’s bankruptcy proceedings was subject to the Plan’s adjustment schedule, reducing the claim’s value to 20 to 30 percent of the Judgment. The Officers contend that, to the extent the Judgment purports to create an obligation distinct from that adjusted claim, the confirmation of the Plan discharged and rendered this obligation void. See 11 U.S.C. §§ 524(a)(l)-(2), 944(b)-(c).

Of course, it was Vallejo, not the Officers, that declared bankruptcy and adjusted its debts, and the Judgment was entered against the Officers solely in their personal capacities. The Officers argue, however, that the Judgment was brought within the ambit of the Plan by the California Government Code, which broadly requires public entities like Vallejo to indemnify their employees in litigation arising from the employees’ performance of official duties. The Officers rely principally upon Section 825 of the Government Code, which in relevant part provides:

[I]f an employee or former employee of a public entity requests the public entity to defend him or her against any claim or action against him or her for an injury arising out of an act or omission occurring within the scope of his or her employment as an employee of the public entity and the request is made in writing not less than 10 days before the day of trial, and the employee or former employee reasonably cooperates in good faith in the defense of the claim or action, the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity has agreed.

Cal. Gov’t Code § 825(a).

Section 825 requires the public entity to indemnify its employee for compensatory damages awarded under 42 U.S.C. § 1983 and attorney’s fees the employee is ordered to pay under 42 U.S.C. § 1988. See Williams v. Horvath, 16 Cal.3d 834, 129 Cal.Rptr. 453, 548 P.2d 1125, 1132-34 (1976) (en banc). Other California Government Code provisions require the public entity to provide for its employee’s defense against an indemnifiable action upon the employee’s request, and authorize the employee to compel his or her employer to make any required defense or indemnification payments, or to reimburse the employee for any such payments the employee has already made. See Cal. Gov’t Code §§ 825.2, 970.2, 995, 996.4. Indeed, less than three weeks before the trial, the Vallejo City Attorney wrote to the Officers, stating that the City had undertaken their defense and would indemnify them for any damages.

The Officers advance two related arguments why Vallejo’s statutory indemnification obligations subjected the Judgment to adjustment under the Plan. First, they argue that, by operation of law, the Judgment is Vallejo’s liability rather than their own. Second, the Officers argue that, even if the Judgment is deemed one against them personally rather than Vallejo, there is “such identity” between Vallejo and themselves that adjustment of the- Judgment “fall[s] within the language or intent of the Plan.” We address these arguments in turn.

2. The Judgment against the Officers was not a personal liability of Valle-jo.

The Officers argue that the California indemnification provisions rendered the Judgment a personal liability of Vallejo. We disagree.

It is a basic precept of Section 1983 litigation that a judgment against a government official in his personal capacity leads to the imposition of liability “against the individual defendant, rather than against the entity that employs him.” Kentucky v. Graham, 473 U.S. 159, 167-68, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Thus, “an award of damages against an official in his personal capacity can be executed only against the official’s personal assets.” Id. at 166, 105 S.Ct. 3099.

We have held that, for purposes of the Eleventh Amendment, the indemnification obligation imposed by California Government Code Section 825 does not render a personal-capacity suit against a state employee one against the state, and so sovereign immunity does not extend to the employee. Demery v. Kupperman, 735 F.2d 1139, 1147 (9th Cir. 1984); see also Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 395 (9th Cir. 1997); cf. Ronwin v. Shapiro, 657 F.2d 1071, 1074-75 (9th Cir. 1981). Rather, the statute creates a “purely intramural arrangement between a state and its officers,” because if a plaintiff “prevails on the merits, the court will not be ordering the state to do anything; it will only be ordering the official to pay damages. If the state official desires indemnification under the state statute, he must bring suit in a state court.” Demery, 735 F.2d at 1147-48.

We find the Demery line of cases persuasive with respect to the matter at hand. It is true that these cases addressed disputes over the scope of sovereign immunity rather than bankruptcy discharge. However, the Officers’ contention that the reach of these cases must be cabined to sovereign immunity is belied by the thoughtful and generally applicable approach with which these cases analyze the attribution of liability between public entities and their officers. This approach is equally applicable here. The Judgment embodies the jury’s determination, by a preponderance of the evidence, that the Officers, acting in ’their personal capacities, seriously injured Deocampo while acting under the color of state law, as well as a concomitant Section 1988 fee award that Congress has seen fit to authorize for injuries of this nature. Deocampo is entitled to enforce the Judgment against the Officers personally, but he has no right to enforce it directly against Vallejo or its property. Graham, 473 U.S. at 166, 105 S.Ct. 3099. Vallejo may be obligated by statute to indemnify the Officers for the amount of the Judgment, but this “purely intramural arrangement” does not alter the fact that the Judgment itself is binding on the Officers and the Officers alone. Demery, 735 F.2d at 1147-48.

Therefore, we hold that California’s indemnification statutes do not render a judgment or concomitant fee award against an indemnifiable municipal employee a liability of the municipal employer for purposes of adjusting or discharging the debts of a Chapter 9 debtor. The Judgment is the Officers’ personal liability, not Vallejo’s.

3. The Plan does not effect a third-party adjustment or discharge of the Officers’ judgment debts.

Alternatively, the Officers argue that, even if the Judgment is not Vallejo’s debt by operation of law, the indemnity statutes create such identity between Vallejo’s interests and their own that the Judgment is actually against the debtor and is thus subject to the Plan.

Other Circuits have held that a debtor’s Chapter 11 bankruptcy plan may operate to discharge the debts of certain non-debt- or third parties, provided the bankruptcy court has “accepted and confirmed [this discharge] as an integral part of reorganization.” In re A.H. Robins Co., 880 F.2d 694, 702 (4th Cir. 1989) (quoting Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1050 (5th Cir. 1987)). We have rejected this construction of the Bankruptcy Code. While the bankruptcy court has broad powers to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title,” 11 U.S.C. § 105(a), it cannot confirm a plan that does not comply with applicable Code provisions. 11 U.S.C. § 1129(a)(1). In general, 11 U.S.C. § 524(e) provides that “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” Thus, we have “repeatedly held, without exception,” that, in a Chapter 11 proceeding, “§ 524(e) precludes bankruptcy courts from discharging the liabilities of non-debtors.” In re Lowenschuss, 67 F.3d 1394, 1401 (9th Cir. 1995) (citations omitted).

However, as the Officers point out, Chapter 9, unlike Chapter 11, does not incorporate Section 524(e)! 11 U.S.C. § 901. As such, the rationale relied upon by Lowenschuss does not apply in Chapter 9 proceedings. We have not previously addressed the question of whether, in a proceeding to which Section 524(e) does not apply, Section 105 authorizes a bankruptcy court to confirm a plan that effects the adjustment or discharge of the debts of non-debtor third parties. We need not, and do not, answer this question here. Because the Plan does not, by its terms, purport to effect the third-party discharge advocated by the Officers, we do not opine on the power of the bankruptcy court to confirm a hypothetical plan that does so.

The Plan makes no express reference to indemnification or the discharge of claims against' Vallejo employees. In asserting that the Plan nevertheless contemplated the discharge of such claims, the Officers rely upon open-ended, boilerplate language. The Plan provides that, following its effective date, all “Claims” are fully discharged, “whether against the City or any of its properties, assets or interests in property.” The Plan defines “Claim” to mean “a claim against the City or the property of the City within the meaning of section 101(5) of the Bankruptcy Code.” The Officers argue that, broadly construed, this language encompasses the Judgment, and a broad construction is necessary to further the Bankruptcy Code’s policy of providing debtors with a fresh start.

The Officers confuse the breadth of the Bankruptcy Code’s definition of “claim” with the breadth of the discharge or adjustment effected by a particular plan, including one that recites the statutory definition. An ambiguity in a bankruptcy plan drafted by a debtor is construed against the debtor. In re Brawders, 503 F.3d 856, 867 (9th Cir. 2007); Miller v. United States, 363 F.3d 999, 1005-06 (9th Cir. 2004). Relatedly, “any ambiguity may also reflect that the court that originally confirmed the plan did not make any final determination of the matter at issue.” In re Brawders, 503 F.3d at 867. The Circuits that have permitted Chapter 11 plans to release non-debtors have required that the release be express, see In re Applewood Chair Co., 203 F.3d 914, 919 (5th Cir. 2000) (per curiam), and that it be supported by “specific factual findings,” see Behrmann v. Nat'l Heritage Found., 663 F.3d 704, 712-13 (4th Cir. 2011). While we reserve judgment on the validity of an express third-party release in a Chapter 9 proceeding within our jurisdiction, we observe that at least two large municipalities that have filed for bankruptcy, Detroit and San Ber-nardino, have included in their proposed plans the express discharge of claims against indemnifiable employees. See In re City of Detroit, 524 B.R. 147, 265 (Bankr. E.D. Mich. 2014); Third Am. Plan for the Adjustment of Debts of the City of San Bernardino, Cal., at 55-59, In re City of San Bernardino (Bankr. C.D. Cal. filed July 29, 2016) (No. 6:12-bk-28006-MJ), Dkt. 1880. Thus, when Vallejo filed the Plan, it was not beyond fathom that it should propose a putative third-party release. Vallejo simply failed to include such a proposal.

The Plan does not expressly release any debtor but Vallejo. The bankruptcy court’s Plan confirmation order, and the minute order it incorporates, make no reference to indemnity or third-party discharge. These orders cannot reasonably be construed to set forth a judicial finding that third-party discharge or adjustment was an “integral part of reorganization.” In re A.H. Robins Co., 880 F.2d at 702 (citation omitted). For these reasons, the Judgment remains undischarged, unadjusted, and untouched by Vallejo’s bankruptcy.

4. The consequences of affirming the denial of Rule 60(b) relief.

On appeal, the Officers and various law enforcement association amici make a third, policy-oriented argument that denying the Officers relief from judgment would have dire consequences. They are concerned that a ruling in favor of Deo-campo will inject uncertainty into the scope of indemnity coverage, demoralize officers, and dissuade them from zealously performing their duties, or deter them from even becoming police officers. These concerns are misplaced. The Officers will not be required to pay the Judgment out of their own pockets. Our conclusion that the Judgment is against the Officers personally, and not Vallejo, does not relieve Vallejo of its obligation to indemnify the Officers under California law. Although the Officers did not file proofs of claim in the bankruptcy proceedings, and Vallejo did not list them as creditors, it was not necessary for them to have done so to preserve their right to statutory indemnification.

Critically, under California law, the event giving rise to the Officers’ claim for indemnification is Vallejo’s provision óf a defense for the Officers, not the alleged injury inflicted by the Officers or the plaintiffs’ filing of a lawsuit. See Rivas v. City of Kerman, 10 Cal.App.4th 1110, 13 Cal. Rptr.2d 147, 150 (1992), as modified (Nov. 23, 1992) (construing Cal. Gov’t Code § 825). Here, Vallejo undertook the Officers’ defense on July 18, 2013, after the confirmation of the Plan. Because this triggering event occurred after the discharge, Vallejo’s indemnification obligation is a post-petition debt that is not subject to adjustment, discharge, or the bankruptcy injunction. See O’Loghlin v. Cty. of Orange, 229 F.3d 871, 874 (9th Cir. 2000). The Plan also committed Vallejo to “continue to operate pursuant to the City Charter, the Constitution of the State of California and other applicable laws,” and thereby excepted from discharge any § 825 claims. See 11 U.S.C. § 944(c)(1). Our decision thus does not unsettle the commitment of California municipalities to indemnify their employees, nor should it chill legitimate law enforcement activity.

All of the practical consequences of our decision fall upon Vallejo rather than the Officers. The Officers acknowledge as much in their briefing, which is replete with concerns about “the complete subversion of the goals of bankruptcy reorganization,” and unsecured judgment creditors cutting ahead of others more senior in priority in a plan of adjustment. While we do not speculate why the Officers are so solicitous of these matters despite lacking any skin in the bankruptcy game, we note that, though Vallejo has not been a party to this action since 2007, Vallejo furnished the Officers’ defense, and Vallejo’s City Attorney, among others, continues to represent them on appeal. Like the misplaced concern with the demoralization of law enforcement, these additional, structural concerns lack force. We need not weigh policy considerations here to glean the plain meaning of the bankruptcy and state statutes dictating the outcome of this appeal. We-note, however, that, were it appropriate to consider policy, the policies of satisfying the goals of bankruptcy and ensuring that our law enforcement officers can effectively perform their jobs are not the sole policies in play. Deoeampo’s position is supported by the significant public policies of (1) holding accountable state actors who misuse their positions of power to violate the constitutional and human rights of their fellow citizens; and (2) fully redressing the harms they have caused to their victims.

IV.

Even if Chapter 9 clears a path for some municipal debtor to discharge or adjust the judgment debts of its indemnified employees in bankruptcy, Vallejo is not that debt- or, and the Plan is not that path. The Officers are not entitled to relief from judgment, and the district court properly denied their Rule 60(b) motion.

AFFIRMED.

      . The criminal charges against Plaintiffs were ultimately dismissed. California’s two-year statute of limitations for personal injury actions was tolled while the criminal charges against Plaintiffs were pending. See Cal. Civ. Proc. Code § 335.1; Cal. Gov’t Code § 945.3.

        . Available at http://www.bloomberg.com/ news/articles/2010-12-01/vallejo-approves-plan-to-exit-california-s-biggest-bankruptcy-since-1994.

      . Available at http://www.governing.com/gov-data/municipal-cities-counties-bankruptcies- and-defaults.html.

      . Available at https://www.newyorkfed.org/ newsevents/speeches/2015/dudl 5 0414.html. Cf. also Claire Shubik, Laura Horowitz & Thomas Ginsberg, Tough Decisions and Limited Options: How Philadelphia and Other Cities are Balancing Budgets in a Time of Recession, Pew 2 fig. 1 (2009) (surveying 13 major cities and finding that 12 had annual deficits, 8 of which exceeded 10 percent of the city’s general fund).

      . Deocampo’s proof of claim in the Vallejo proceedings was unnecessary and without legal effect, because his lawsuit was against the Officers in their personal — not official — capacities, and any judgment against them would be a determination of their liability, not Vallejo’s. We do not fault Deocampo’s counsel for filing the proof of claim, however, given the uncertainty in this area of law at that time, and we reject the Officers’ arguments to the contrary. If Deocampo’s counsel had not filed a proof of claim in Vallejo’s bankruptcy proceedings on the ground that any judgment against the Officers was not Vallejo’s debt, and had counsel’s legal judgment not to do so been wrong, counsel would have risked forfeiting Deocampo's ability to collect on the judgment. See 11 U.S.C. §§ 524(a), 944; Fed. R. Bankr. P. 3003(c)(2) (in a Chapter 9 proceeding, ”[a]ny creditor ... whose claim or interest is not scheduled or scheduled as disputed, contingent, or unliquidated shall file a proof of claim or interest within the time prescribed ... any creditor who fails to do so shall not be treated as a creditor with respect to such claim for the purposes of voting and distribution”). The choice to file a proof of claim, on the other hand, did not create any risk of harm — at worst, it would be a nullity. We therefore decline to infer from counsel's precautionary filing in this unsettled area of the law any concession or judicial admission that a judgment against'the Officers would be a personal liability of Vallejo.

      . Deocampo did not prevail on his other claims; Grant and Berry failed to prevail on any claim; and Officer Patzer was found not liable as to any claim.

      . The district court then awarded Deocampo supplemental attorney’s fees for the time spent opposing the Rule 60(b) motion and litigating the original motion for fees. The Officers contend that this award, like the Judgment, is subject to adjustment under the Plan. However, because the Officers did not amend their prior notice of appeal or separately appeal the supplemental fee award, we lack jurisdiction to review it. See Hunt v. City of Los Angeles, 638 F.3d 703, 719 (9th Cir. 2011); Fed. R. App. P. 4(a)(1)(A).

      . The Bankruptcy Code defines "municipality” to mean a "political subdivision or public agency ,or instrumentality of. a State.” 11 U.S.C. § 101(40).

      . See also 11 U.S.C. § 904 (providing that, unless the municipal debtor consents or its plan so provides, the court cannot "interfere with” a municipal debtor’s political or governmental powers, property or revenues, or use or enjoyment of income-producing property).

      . Nor is the debtor discharged from debts owed to entities that had neither notice nor actual knowledge of the case before confirmation of the plan. 11 U.S.C. § 944(c)(2). However, the exceptions to dischargeability set forth by 11 U.S.C. § 523(a), including the exception that renders non-dischargeable debt arising from "willful and malicious injury,” id. § 523(a)(6), do not apply in a Chapter 9 bankruptcy. See V.W. ex rel. Barber v. City of

        Vallejo, No. CIV. S-12-1629, 2013 WL 3992403, at *2-3 (E.D. Cal. Aug. 2, 2013) (opining that this is a "somewhat surprising, indeed, alarming result”).

      . California Government Code Section 825(b) sets forth additional requirements for the indemnification of punitive or exemplary damages awarded against a public employee. These requirements do not apply in this case because the jury awarded only compensatory damages.

      . Section 101(5) provides:
      The term “claim” means—
      (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
      (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, un-matured, disputed, undisputed, secured, or unsecured.

      .The Officers rely upon several cases in which courts ruled that an indemnity obligation triggers the automatic stay provisions of 11 U.S.C. §§ 362(a) & 922. However, the discharge provisions are narrower than the automatic stay provisions, the broad reach of which furthers their purpose to freeze the status quo at the time a petition is filed, ensure that all claims against the debtor will be brought in a single forum, and protect creditors by providing for the orderly administration of claims. See Hillis Motors, Inc. v. Haw. Auto. Dealers' Ass'n, 997 F.2d 581, 585 (9th Cir. 1993). Among other differences, the stay provisions "do[] not contain such limiting concepts as personal liability of the debt- or.’ ” In re Munoz, 287 B.R. 546, 554 n.8 (9th Cir. BAP 2002) (quoting 11 U.S.C. § 524(a)(2)). The district court correctly determined that the automatic stay cases do not control the outcome of the Officers’ Rule 60(b) motion.

      . Detroit’s proposal of this third-party discharge did not result in its automatic confirmation, underscoring the critical role bankruptcy courts play in adjudicating whether a plan shall be confirmed. See In re City of Detroit, 524 B.R. at 265-67 (sustaining Section 1983 judgment creditors’ objection to a Chapter 9 plan that expressly released indemnified officers because “[t]he record is devoid of any evidence suggesting that the additional protection of a third-parly release for these officers is necessary to the City's efficient and effective functioning, to its revitalization, or to the success of its plan”).

      . Available at http://www.sbcity.org/home_ . nav/chapter_9_bankruptcy/default.asp But cf. Katy Stech, San Bernardino Bankruptcy Plan Would Shield Police from Claims, Wall St. J. (Apr. 18, 2016), http://www.wsj.com/articles/ san-bernardino-bankruptcy-plan-would-shield-police-from-claims-1461017965 (describing objection to this feature of San Ber-nardino’s previous proposed plan filed by plaintiffs in police excessive-force lawsuits).

      . In the July 18, 2013 letter, the Vallejo City Attorney wrote to the Officers, "The City of Vallejo has undertaken your defense and will represent your interests in this lawsuit. In addition, should any damages award be rendered against you, the City of Vallejo will indemnify you for such damages. The City of Vallejo believes that you were acting in the course and scope of your employment during the incident, and accordingly would pay for the damages which stem from your actions during the arrest.”