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This is a sad story about a 57 year old man Dan Pauluk, a long-time health inspector and environmental dan-paulukhealth specialist employee of the Southern Nevada Health District who died in 2009 from years of toxic black mold exposure while working at the Clark County Health District. The corners office concluded that he died from “mixed mold mycotoxicosis,” (mold poisoning from several types of toxic molds).

Pauluk discovered the mold growing above his desk in 2003, and made several requests to be transferred to a mold free office. He was finally moved 2 years later, but by then he was too sick and it was too late. After the job transfer, his doctors positively identified that his ailments were caused by mold and he was placed on permanent medical leave from his job.

Despite Pauluk’s claims, Clark County officials denied that mold was making him sick and down played the fact that mold was found growing in the office he worked.

He was not the only employee to become ill from the mold either.

It was later confirmed that the Health District’s human resources department acknowledged in a September 2005 interoffice memo that “Dan is the third current active employee with this specific diagnosis.” In addition to 3 confirmed employees with a mold illness, there have also bee 8 other co-workers in the same office whose desks were within 50 feet of Paluks who have died since the early 1990s of various forms of cancer and other ailments, and five others became so ill they have quit or retired.

Before his death, his story made news headlines in the Las Vegas Sun. Dan told the Sun

Dan Pauluk almost as much as his ailment is his ex-employer’s attitude. “I have not been shown one bit of empathy or kindness from them,” he said. “I did my job by protecting the public’s health, but the Health District did not protect mine,” said Pauluk, who was raised in Minnesota and is an Air Force veteran. “Now they are just hoping I will go away or die. They are using delay tactics.” You can read the rest of the story at this link.

In the end, the County and the incompetent and uncaring supervisors who refused to act in a timely manner were let off with absolutely no accountability or liability in Dan Paluks death. They were labeled ‘state actors” by the court and immune from liability despite the fact that their failure to remediate the mold and move Paluk from the office resulted in his death.

Here are the details below of the lawsuit and appeal.

U.S. Circuit Judge John Noonan said that the supervisors should be held accountable for transferring Daniel back to Shadow Lane despite his objections.

“Pauluk was… willfully exposed to a mold spore infestation, and all its attendant health risks, with every breath he took,” Noonan wrote in his four-page dissent. “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.”

, that was discovered, tested, and confirmed to be active at the agency’s offices.

U.S. Circuit Judge John Noonan said that the supervisors should be held accountable for transferring Daniel back to Shadow Lane despite his objections.

“Pauluk was… willfully exposed to a mold spore infestation, and all its attendant health risks, with every breath he took,” Noonan wrote in his four-page dissent. “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.”

Here are the details of the lawsuit:

The panel reversed the district court’s order, on summary judgment, denying qualified immunity to two employees of the Clark County Health District in an action brought pursuant to 42 U.S.C. § 1983 by the widow and daughters of Daniel Pauluk, an employee of the Health District, who died allegedly from toxic mold in his workplace.

The panel first held that in this interlocutory appeal it had jurisdiction to decide whether the evidence demonstrated a violation by the defendant employees, and whether such violation was in contravention of federal law that was clearlyestablished at the time.

The panel held that viewing the facts in the light most favorable to plaintiffs, they had shown a violation of the constitutional right, grounded in the Fourteenth Amendment’s Due Process Clause, to be free of state-created danger. The panel held that the Supreme Court’s decision in Collins v. City of Harker Heights, 503 U.S. 115 (1992), declining to find a general due process right to a safe workplace, did not bar plaintiffs’ due process claim brought under the state- created danger doctrine.

The panel nonetheless reversed the district court’s order denying qualified immunity because the panel determined that it was not clearly established, at the time of the unconstitutional actions, that the state-created danger doctrine applied to claims based on physical conditions in the workplace.

Concurring in part and dissenting in part, Judge Murguia agreed with the opinion’s analysis as to the scope of the 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 the defendant employees.

She respectfully disagreed with the opinion’s conclusion that plaintiffs presented a cognizable claim that defendants affirmatively acted with deliberate indifference to Pauluk’s substantive due process rights under the state-created danger doctrine.

Dissenting, Judge Noonan stated that the law governing the state-created danger doctrine was clearly established at the time and that any reasonable official in defendants’ shoes would have understood that they were violating it.

U.S. Circuit Judge William Fletcher outlined the case’s history in his 20-page opinion.

Judge Fletcher wrote, “The general rule is that a state actor is not liable for his omissions or failure to act,” Fletcher wrote. However, he added that, “The state-created danger doctrine is a recognized ‘exception’ to this general rule.”

The U.S. Supreme Court case of Collins v. City of Harker Heights presented a similar workplace-safety issue but did not address the state-law issue.

“[B]ecause 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,” he wrote.

U.S. Circuit Judge Mary Murguia did not agree that the Pauluks demonstrated that Savage and Wojcik acted affirmatively and with deliberate indifference.

She wrote, “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,'” she wrote. Daniel had worked at Shadow Lane before, and “If Pauluk’s risk of illness from mold exposure pre-dated 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.”

U.S. Circuit Judge John Noonan said that the supervisors should be held accountable for transferring Daniel back to Shadow Lane despite his objections.

“Pauluk was… willfully exposed to a mold spore infestation, and all its attendant health risks, with every breath he took,” Noonan wrote in his four-page dissent. “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.”

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