FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MICHAEL HAMPTON;                         No. 22-15481
JACQUELINE HAMPTON,
          Plaintiffs-Appellees,            D.C. No.
                                       3:21-cv-03058-LB
 v.

STATE OF CALIFORNIA;                       OPINION
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; SAN QUENTIN
STATE PRISON; RALPH DIAZ;
RONALD DAVIS, Warden;
RONALD BROOMFIELD;
CLARENCE CRYER; ALISON
PACHYNSKI; SHANNON
GARRIGAN; LOUIE ESCOBELL;
MUHAMMAD FAROOQ; KIRK A
TORRES; ESTATE OF ROBERT S.
THARRATT,
           Defendants-Appellants.

      Appeal from the United States District Court
         for the Northern District of California
      Laurel D. Beeler, Magistrate Judge, Presiding

          Argued and Submitted May 10, 2023
               San Francisco, California
2                HAMPTON V. STATE OF CALIFORNIA


                      Filed October 3, 2023

Before: Michelle T. Friedland and Mark J. Bennett, Circuit
     Judges, and Richard D. Bennett,* District Judge.

                  Opinion by Judge Friedland


                          SUMMARY**


              Prisoner Civil Rights/COVID-19

    On interlocutory appeal, the panel (1) affirmed in part
and reversed in part the district court’s order denying
defendants’ motion to dismiss on the basis of immunity
under the Public Readiness and Emergency Preparedness
Act (“PREP Act”) and qualified immunity in an action
brought against California prison officials arising from the
death of a San Quentin inmate from COVID-19; and
(2) dismissed for lack of jurisdiction defendants’ claims
asserting immunity under state law.
    On May 30, 2020, defendants transferred 122 inmates
from the California Institution for Men, which had suffered
a severe COVID-19 outbreak, to San Quentin Prison, where
there were no known cases of the virus, resulting in an



*
 The Honorable Richard D. Bennett, United States Senior District Judge
for the District of Maryland, sitting by designation.
**
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                HAMPTON V. STATE OF CALIFORNIA                3


outbreak that killed one prison guard and over twenty-five
inmates, including plaintiff’s husband, Michael Hampton.
    Determining that the denial of PREP Act immunity was
an appealable collateral order, the panel held that defendants
were not, on the face of the complaint, entitled to immunity
under the PREP Act, which limits legal liability for the
administration of medical countermeasures (such as
diagnostics, treatments, and vaccines) during times of crisis.
The panel held that the PREP Act does not provide immunity
against claims arising from the failure to administer a
covered countermeasure. Here, plaintiff alleged that
defendants were aware prior to the inmates’ transfer that
their COVID-19 test results were so outdated as to be
essentially irrelevant. It therefore was plausible to infer that
the testing results did not contribute to the decision to
transfer the inmates—and, accordingly, did not contribute to
Hampton’s death. Once post-transfer testing occurred, the
damage had been done. Because the allegations did not
describe a causal relationship between the administration of
testing and Hampton’s death, plaintiff’s claims were not
precluded by the PREP Act.
    The panel held that defendants were not entitled to
qualified immunity on plaintiff’s Eighth Amendment claim,
which adequately alleged that defendants acted with
deliberate indifference to the health and safety of San
Quentin inmates, including Hampton. The right at issue—
to be free from exposure to a serious disease—was clearly
established since at least 1993, when the Supreme Court
decided Helling v. McKinney, 

 (1993), and under
this circuit’s precedent. All reasonable prison officials
would have been on notice in 2020 that they could be held
liable for exposing inmates to a serious disease, including a
serious communicable disease.
4              HAMPTON V. STATE OF CALIFORNIA


    Finally, the panel held that it lacked jurisdiction to
consider whether officials were entitled to immunity under
state law. Because the state law immunities on which
defendants relied were immunities from liability, not from
suit, defendants could not invoke the collateral order
doctrine to immediately appeal the district court’s rejection
of those state law defenses.
    In an accompanying memorandum disposition, the panel
reversed the district court’s denial of qualified immunity on
plaintiff’s due process claim for violation of her own right to
familial association with Hampton.



                         COUNSEL

Cassandra J. Shryock (argued) and Robert M. Perkins III,
Deputy Attorneys General; Jeffrey T. Fisher, Supervising
Deputy Attorney General; Monica N. Anderson, Senior
Assistant Attorney General; Rob Bonta, California Attorney
General; Office of the California Attorney General, San
Francisco, California; for Defendants-Appellants.
Michael J. Haddad (argued), Julia Sherwin, and Teresa
Allen, Haddad & Sherwin LLP, Oakland, California; Brian
Hawkinson, Liebert Cassidy Whitmore, San Francisco,
California; for Plaintiffs-Appellees.
Adam R. Pulver, Allison M. Zieve, and Scott L. Nelson,
Public Citizen Litigation Group, Washington, D.C., for
Amicus Curiae Public Citizen.
                   HAMPTON V. STATE OF CALIFORNIA                         5

OPINION

FRIEDLAND, Circuit Judge:
    Early in the COVID-19 pandemic, the California
Institution for Men (“CIM”) suffered a severe COVID-19
outbreak. In an attempt to protect CIM inmates, high-level
officials in the California prison system transferred 122
inmates from CIM to San Quentin State Prison, where there
were no known cases of the virus. The transfer sparked an
outbreak of COVID-19 at San Quentin that infected over
two-thousand inmates and ultimately killed over twenty-five
inmates and one prison guard.
    The wife of one of the deceased inmates sued, claiming
that the prison officials had violated her husband’s
constitutional and statutory rights. The officials moved to
dismiss, asserting that the claims were barred by various
federal and state immunities, including immunity under the
Public Readiness and Emergency Preparedness Act and
qualified immunity. The district court held that the officials
were not entitled to immunity at this stage of the
proceedings, and the officials filed this interlocutory appeal.
We affirm the district court’s conclusion that the officials are
not entitled to immunity under federal law for the claimed
violations of her husband’s rights,1 and we lack jurisdiction
to consider whether the officials are entitled to immunity
under state law.



1
  Plaintiff also asserted a due process claim for violation of her own right
to familial association with Hampton. In a memorandum disposition
accompanying this opinion, we reverse the district court’s decision to
deny qualified immunity on that claim.
6               HAMPTON V. STATE OF CALIFORNIA


                               I.
    We recently considered an appeal arising out of virtually
identical allegations, but in a case alleging a violation of the
deceased prison guard’s due process rights. See Polanco v.
Diaz, 

 (9th Cir. 2023). We redescribe the
allegations here, taking all of them as true at this stage of the
proceedings. See Padilla v. Yoo, 

 (9th Cir.
2012).
                               A.
    On March 4, 2020, California Governor Gavin Newsom
proclaimed a state of emergency due to COVID-19. The
declaration was quickly followed by other emergency
measures at the state and local levels, including shelter-in-
place orders and mask mandates. Later that month,
Governor Newsom issued an executive order suspending the
intake of inmates into all state correctional facilities. Around
the same time, California Correctional Health Care Services
adopted a policy opposing the transfer of inmates between
prisons, reasoning that transfers could “carr[y] [a] significant
risk of spreading transmission of the disease between
institutions.”
     Defendants—a group of high-level officials at CIM, San
Quentin, and the California Department of Corrections and
Rehabilitation (“CDCR”)—were aware of the risks that
COVID-19 posed in a prison setting. All had been briefed
on the dangers of COVID-19, the highly transmissible nature
of the disease, and the necessity of taking precautions (such
as social distancing, mask-wearing, and testing) to prevent
its spread. Defendants were also aware that containing an
outbreak at San Quentin would be particularly difficult due
to its tight quarters, antiquated design, and poor ventilation.
As of late May 2020, though, San Quentin appeared to be
               HAMPTON V. STATE OF CALIFORNIA             7


weathering the storm with no known cases of COVID-19.
Other prisons were not so fortunate. CIM suffered a severe
outbreak, which by late May had killed at least nine inmates
and infected over six hundred.
    In an attempt to prevent further harm to CIM inmates, on
May 30, Defendants transferred 122 CIM inmates with high-
risk medical conditions to San Quentin. The transfer did not
go well. Most of the men who were transferred had not been
tested for COVID-19 for over three weeks, and none of the
transferred inmates were properly screened for symptoms
before being “packed” onto buses to San Quentin “in
numbers far exceeding” the COVID-capacity limits that
CDCR had established for inmate safety. Although some
inmates began experiencing symptoms while on the buses,
the buses did not turn back. And instead of quarantining the
inmates upon their arrival at San Quentin, Defendants placed
them in a housing unit with grated doors (allowing air to
flow in and out of the cells) and had them use the same
showers and eat in the same mess hall as other inmates.
     Two days later, the Marin County Public Health Officer
learned of the transfer and scheduled an immediate
conference call with some Defendants. On the call, he
recommended that the transferred inmates be completely
sequestered from the original San Quentin population, that
all exposed inmates and staff be required to wear masks, and
that staff movement be restricted between different housing
units to prevent the spread of COVID-19. Despite being
timely informed of the Public Health Officer’s
recommendations, Defendants did not heed his advice.
Rather, they ordered that the Public Health Officer be
informed that he lacked the authority to mandate measures
in a state-run prison.
8                 HAMPTON V. STATE OF CALIFORNIA


   COVID-19 soon began to sweep through San Quentin.
Within days of the transfer, twenty-five of the transferred
inmates had tested positive. Over a three-week period, San
Quentin went from zero confirmed cases of COVID-19 to
nearly five hundred.
    In mid-June, a court-appointed medical monitor of
California prisons (the “Receiver”)2 requested that a group
of health experts investigate the outbreak at San Quentin.
The health experts wrote an “urgent memo” warning that the
COVID-19 outbreak at San Quentin could escalate into a
“full-blown local epidemic and health care crisis in the
prison and surrounding communities” if not contained. The
memo criticized many practices at San Quentin, noting, for
instance, that personal protective equipment and masks were
not provided to staff or inmates. Even when inmates and
staff had masks, many wore them improperly or failed to
wear them at all. The prison’s testing protocol, too, was
inadequate, suffering from what the memo considered
“completely unacceptable” delays. The memo also warned
that quarantining inmates with COVID-19 in cells usually
used for punishment could backfire by making inmates
reluctant to report their symptoms.
    Defendants were informed of the memo but did not adopt
its recommendations. For one, Defendants placed sick
inmates in solitary confinement, which discouraged inmates
from reporting their symptoms—just as the experts had

2
  “In response to a class action, the United States District Court for the
Northern District of California held in 2005 that the medical services in
California prisons failed to meet the constitutional minimum. It
accordingly appointed a receiver tasked with establishing a
constitutionally adequate medical system.” Polanco, 

 n.2
(citation omitted); see Plata v. Schwarzenegger, No. C01-1351, 

, at *1 (N.D. Cal. Oct. 3, 2005).
               HAMPTON V. STATE OF CALIFORNIA                9


warned would occur. Prison staff were not regularly tested
for COVID-19 or trained on COVID-19 safety protocols.
And when two research labs offered to provide COVID-19
testing at the prison, Defendants refused the offers, even
though one lab offered the testing for free.
    The outbreak continued to spread. By July, more than
1,300 inmates had tested positive. In August, the infection
count exceeded 2,000―approximately two-thirds of the San
Quentin inmate population. By early September, twenty-six
inmates and one correctional officer had died of COVID-19.
                              B.
    At the time of the transfer, Michael Hampton was a
sixty-two-year-old inmate at San Quentin. Hampton had
multiple health conditions, including obesity, hypertension,
and pre-diabetes, that put him at high risk of death if he were
to contract COVID-19.          In early June, he started
experiencing symptoms consistent with COVID-19,
including a persistent cough. His condition worsened, and
he was transferred to the hospital in late June.
    At the hospital, Hampton was diagnosed with “COVID-
19 pneumonia.” He was placed on a ventilator in early
August. In mid-September, he was moved to “comfort
care.” He died on September 25, 2020.
                              C.
    Hampton’s wife (“Plaintiff”) initiated this lawsuit in the
United States District Court for the Northern District of
California, asserting an Eighth Amendment claim under 

 as Hampton’s successor in interest, as well as
various federal and state statutory claims and a state law
negligence claim. Defendants moved to dismiss for failure
to state a claim, asserting that all of Plaintiff’s claims were
10             HAMPTON V. STATE OF CALIFORNIA


barred by Public Readiness and Emergency Preparedness
Act immunity. In the alternative, Defendants argued that
they were entitled to qualified immunity on Plaintiff’s
Eighth Amendment claim and that Plaintiff’s state law
claims were barred by various state law immunities. The
district court rejected all of Defendants’ claims to immunity.
Defendants timely appealed.
                              II.
    “We review de novo a district court’s decision to deny a
motion to dismiss under Rule 12(b)(6).” Dunn v. Castro,

 (9th Cir. 2010). When engaging in
such review, we “accept[] as true all well-pleaded
allegations” and “construe[] them in the light most favorable
to the non-moving party.” Hernandez v. City of San Jose,

 (9th Cir. 2018) (quoting Padilla v. Yoo,

 (9th Cir. 2012)).
                             III.
    Defendants assert that all of Plaintiff’s claims are barred
by the Public Readiness and Emergency Preparedness
(“PREP”) Act, 42 U.S.C. § 247d-6d, which “provides
immunity from federal and state law claims relating to the
administration of certain medical countermeasures during a
declared public health emergency.” Polanco v. Diaz, 

 (9th Cir. 2023) (quoting Cannon v.
Watermark Ret. Cmtys., Inc., 

, 138 (D.C. Cir.
2022)). Defendants argue that Plaintiff’s claims relate to the
administration of COVID-19 tests and that we should
therefore reverse the district court’s conclusion that the
PREP Act does not confer immunity.
               HAMPTON V. STATE OF CALIFORNIA              11


                             A.
    Before we can turn to the merits of Defendants’
argument, we must determine whether, under the collateral
order doctrine, we can consider an immediate appeal of the
denial of immunity under the PREP Act, or whether such an
appeal must await final judgment. “Federal circuit courts
have jurisdiction over appeals from ‘final decisions’ of
district courts.” SolarCity Corp. v. Salt River Project Agric.
Improvement & Power Dist., 

 (9th Cir.
2017) (quoting Mohawk Indus., Inc. v. Carpenter, 

 (2009)). “Although ‘final decisions’ typically are
ones that trigger the entry of judgment, they also include a
small set of prejudgment orders that are ‘collateral to’ the
merits of an action and ‘too important’ to be denied
immediate review.” Mohawk Indus., Inc., 

(quoting Cohen v. Beneficial Indus. Loan Corp., 

 (1949)). “That small category includes only
decisions” that (1) “are conclusive,” (2) “resolve important
questions separate from the merits,” and (3) “are effectively
unreviewable on appeal from the final judgment in the
underlying action.” 

 at 106 (quoting Swint v. Chambers
Cnty. Comm’n, 

 (1995)). Denials of Eleventh
Amendment immunity, absolute immunity, qualified
immunity, foreign sovereign immunity, and tribal sovereign
immunity all satisfy these criteria and thus are immediately
appealable. See SolarCity Corp., 

.
    A denial of PREP Act immunity also satisfies the
collateral order doctrine’s requirements. First, denial of
PREP Act immunity is conclusive because the PREP Act
confers complete immunity from suit. See 42 U.S.C. § 247d-
6d(a)(1) (“[A] covered person shall be immune from suit and
liability[.]” (emphasis added)). An order denying PREP Act
immunity thus “purport[s] to be [a] conclusive
12              HAMPTON V. STATE OF CALIFORNIA


determination[]” that Defendants “have no right not to be
sued.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 

 (1993). Second, a denial of PREP
Act immunity resolves an important question separate from
the merits. Whether PREP Act immunity applies turns on
whether the claim for which immunity is asserted relates to
the defendant’s use of certain medical countermeasures, a
determination that “generally will have no bearing on the
merits of the underlying action.” 

 And we defer to
Congress’s judgment that such a determination is “too
important to be denied review.” Will v. Hallock, 

 (2006) (quoting Cohen, 

); see also
Digit. Equip. Corp. v. Desktop Direct, Inc., 

 (1994) (“When a policy is embodied in a constitutional
or statutory provision entitling a party to immunity from suit
(a rare form of protection), there is little room for the
judiciary to gainsay its ‘importance.’”). Third and finally, as
an immunity from suit, the benefit of PREP Act immunity
“is effectively lost” if a party is erroneously required to “face
the . . . burdens of litigation.” Mitchell v. Forsyth, 

 (1985).
    Because a denial of PREP Act immunity is an appealable
collateral order, we have jurisdiction to consider the merits
of Defendants’ argument that Plaintiff’s claims fall within
the Act’s scope.
                               B.
   Defendants are not entitled to immunity under the PREP
Act on the face of the Complaint.
                               1.
    “Congress passed the [PREP] Act in 2005 to encourage
during times of crisis the ‘development and deployment of
              HAMPTON V. STATE OF CALIFORNIA            13


medical countermeasures’ (such as diagnostics, treatments,
and vaccines) by limiting legal liability relating to their
administration.” Polanco, 

 (quoting Cannon,
45 F.4th at 139). The statute offers “covered person[s]”
immunity “from suit and liability” for claims “caused by,
arising out of, relating to, or resulting from the
administration to or the use by an individual of a covered
countermeasure.”      42 U.S.C. § 247d-6d(a)(1).      That
immunity “applies to any claim for loss that has a causal
relationship with the administration to or use by an
individual of a covered countermeasure.”           § 247d-
6d(a)(2)(B).
    The Act’s immunity lies dormant until the Secretary of
Health and Human Services “makes a determination that a
disease . . . constitutes a public health emergency” and
“make[s] a declaration, through publication in the Federal
Register,” that the Act’s immunity “is in effect.” § 247d-
6d(b)(1). On March 17, 2020, the Secretary did just that,
declaring that COVID-19 “constitutes a public health
emergency” and that “immunity as prescribed in the PREP
Act” was “in effect” for the “manufacture, testing,
development, distribution, administration, and use of”
covered countermeasures. Declaration Under the Public
Readiness and Emergency Preparedness Act for Medical
Countermeasures Against COVID-19, 

,
15201 (Mar. 17, 2020). The Secretary went on to define
“covered countermeasures” about as broadly as the Act
permits, encompassing “any antiviral, any other drug, any
biologic, any diagnostic, any other device, or any vaccine,
used to treat, diagnose, cure, prevent, or mitigate COVID-
19.” Id. at 15202; see § 247d-6d(i)(1).
14             HAMPTON V. STATE OF CALIFORNIA


                              2.
    Plaintiff does not dispute that Defendants are “covered
person[s]” under the Act. And all agree that COVID tests
are “covered countermeasures.” Whether Defendants are
immune under the PREP Act thus turns on whether
Plaintiff’s claims are for loss “caused by, arising out of,
relating to, or resulting from the administration to or the use
by an individual of a covered countermeasure.” § 247d-
6d(a)(1).
    Defendants first argue that Plaintiff’s claims meet that
standard because Plaintiff alleges that Hampton’s death was
caused (at least in part) by Defendants’ failure to administer
COVID tests to CIM inmates in the days prior to the
inmates’ transfer to San Quentin. But the PREP Act
provides immunity only from claims that relate to “the
administration to or the use by an individual of” a covered
countermeasure—not such a measure’s non-administration
or non-use. Id. This reading is reinforced by other sections
of the Act, which continually refer to that underlying
“administration” or “use” of a countermeasure. For
example, under the Act, immunity applies “only if” a few
conditions are met: The countermeasure must have been
“administered or used during the effective period of the
declaration,” and the use must have been “for the
category . . . of diseases . . . specified in the [Secretary’s]
declaration.” § 247d-6d(a)(3)(A), (B). Those conditions
cannot be satisfied if no countermeasure was administered
or used.
    Defendants invoke an advisory opinion prepared by the
Department of Health and Human Services, which they
argue provides support for the position that the Act covers
claims arising out of a failure to administer a covered
               HAMPTON V. STATE OF CALIFORNIA               15


countermeasure. See Dep’t of Health & Human Servs.,
Advisory Opinion 21-01 on the Public Readiness and
Emergency Preparedness Act Scope of Preemption
Provision (Jan. 8, 2021), https://perma.cc/5K3Y-A9JQ. But
the advisory opinion is irrelevant to this case. The advisory
opinion relies on the following hypothetical:

       [C]onsider a situation where there is only one
       dose of a COVID-19 vaccine, and a person in
       a vulnerable population and a person in a less
       vulnerable population both request it from a
       healthcare professional. In that situation, the
       healthcare professional administers the one
       dose to the person who is more vulnerable to
       COVID-19. In that circumstance, the failure
       to administer the COVID-19 vaccine to the
       person in a less-vulnerable population
       “relat[es] to . . . the administration to” the
       person in a vulnerable population.

Id. at 3 (footnote omitted) (second alteration in original).
This hypothetical illustrates the fact that, for a
countermeasure with limited availability, administering the
countermeasure to one person could mean withholding it
from another. But that is not what Plaintiff alleges happened
here. The Complaint nowhere suggests (and Defendants do
not argue) that tests were in short supply and that Defendants
saved the limited tests for others. Rather, the Complaint
suggests the opposite: Prior to the transfer, Defendants
rejected a lab’s offer to provide free COVID-19 testing at
San Quentin.
    Defendants argue in the alternative that Plaintiff’s claims
do, in fact, “relate to” the use or administration of a covered
16                HAMPTON V. STATE OF CALIFORNIA


countermeasure—namely, the decision to test the transferred
inmates twice, once roughly three weeks prior to the transfer,
and again after the transfer. We cannot accept that argument
at the pleading stage either.
    Although the PREP Act’s immunity encompasses claims
for loss “relating to” the administration of a countermeasure,
the Supreme Court has “singled out” the term “relate to” as
“particularly sensitive to context.” Dubin v. United States,

, 1565-66 (2023). The Court has explained
that “[i]f ‘relate to’ were taken to extend to the furthest
stretch of its indeterminacy, then for all practical purposes
there would be no limits, as really, universally, relations stop
nowhere.” Id. at 1566 (cleaned up) (quoting N.Y. State Conf.
of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 

 (1995)). “That the phrase refers to a
relationship or nexus of some kind is clear . . . . Yet the kind
of relationship required, its nature and strength, will be
informed by context.” 

    Considered in its context in the PREP Act, “relating to”
takes on a more targeted meaning. See McDonnell v. United
States, 

 (2016) (“[A] word is known by
the company it keeps.” (quoting Jarecki v. G.D. Searle &
Co., 

 (1961))). The surrounding verbal
phrases—“caused by,” “arising out of,” and “resulting
from,” § 247d-6d(a)(1)—all connote some type of causal
relationship. At the very least, then, for PREP Act immunity
to apply, the underlying use or administration of a covered
countermeasure must have played some role in bringing
about or contributing to the plaintiff’s injury.3 It is not

3
 Under the canon against surplusage, we do our best, “if possible, to give
effect to each word and clause in a statute.” United States v. Lopez, 998
                 HAMPTON V. STATE OF CALIFORNIA                     17


enough that some countermeasure’s use could be described
as relating to the events underpinning the claim in some
broad sense.
    As described in the Complaint, the testing that took place
did not play a role in bringing about or contributing to
Hampton’s death. Beginning with the testing that occurred
prior to the transfer, Plaintiff alleges that Defendants were
aware that the test results they had were so outdated as to be
essentially irrelevant. If Defendants were willing to transfer
inmates with such outdated results, it is plausible to infer that
the existence of those results did not contribute to the
decision to transfer the inmates—and, accordingly, did not
contribute to Hampton’s death. And by the time the
transferred inmates were tested upon their arrival at San
Quentin, the damage had been done. Plaintiff alleges that
when the post-transfer results came back, many of the
transferred inmates who tested positive had already been
housed in the same unit as the other transferred inmates and
had been using the same showers and mess hall as non-
transferred inmates for at least six days. Because the
allegations do not describe a causal relationship between the




F.3d 431, 440 (9th Cir. 2021). But that canon “assists only where a
competing interpretation gives effect to every clause and word of a
statute.” Marx v. Gen. Revenue Corp., 

 (2013)
(quoting Microsoft Corp. v. i4i Ltd. P’ship, 

 (2011)).
No such competing interpretation could be adopted here; there is hardly
any daylight, for example, between the phrases “caused by” and
“resulting from.” § 247d-6d(a)(1). “In light of this redundancy, we are
not overly concerned” that interpreting “relates to” as requiring some
type of causal relationship “may be redundant as well.” Marx, 

.
18                HAMPTON V. STATE OF CALIFORNIA


administration of either of the tests and Hampton’s death,
Plaintiff’s claims are not precluded by the PREP Act.4
                                   IV.
   We next consider whether Defendants are entitled to
qualified immunity on Plaintiff’s Eighth Amendment claim.5
We hold that they are not.
    “The doctrine of qualified immunity shields officials
from civil liability so long as their conduct ‘does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Mullenix v. Luna,

 (2015) (per curiam) (quoting Pearson v.
Callahan, 

 (2009)). To be entitled to
qualified immunity at the motion to dismiss stage, an officer
must show that the allegations in the complaint do not make
out a violation of a constitutional right or that any such right
was not clearly established at the time of the alleged
misconduct. See Pearson, 

. “[D]ismissal
is not appropriate unless we can determine, based on the
complaint itself, that qualified immunity applies.” Polanco

4
  Defendants suggest that we should consider the pre- and post-transfer
tests as a single plan when deciding whether Plaintiff’s claims fall within
the scope of the PREP Act. But even if evaluating the testing collectively
could somehow help Defendants, the Complaint does not clarify when
the decision to test post transfer was made. From the face of the
Complaint, we therefore cannot infer that Defendants intended from the
start to test the inmates once before the transfer and once after—they
may have instead decided to administer post-transfer tests only once staff
noticed that some inmates exhibited symptoms consistent with COVID-
19.
5
  As noted above, we have jurisdiction under the collateral order doctrine
to review a district court’s rejection of a qualified immunity defense at
the motion to dismiss stage. See Ashcroft v. Iqbal, 

(2009).
                 HAMPTON V. STATE OF CALIFORNIA                    19


v. Diaz, 

 (9th Cir. 2023) (quoting O’Brien
v. Welty, 

 (9th Cir. 2016)).
                                 A.
  We first hold that Plaintiff has alleged a violation of
Hampton’s Eighth Amendment rights.
    The Eighth Amendment’s prohibition against “cruel and
unusual punishments” imposes duties on prison officials to
provide “humane conditions of confinement.” Farmer v.
Brennan, 

 (1994).6 This duty stems from
the relationship between the State and those in its custody.
As the Supreme Court has explained:

        [W]hen the State takes a person into its
        custody and holds him there against his will,
        the Constitution imposes upon it a
        corresponding duty to assume some
        responsibility for his safety and general well
        being. . . . The rationale for this principle is
        simple enough: when the State by the
        affirmative exercise of its power so restrains
        an individual’s liberty that it renders him
        unable to care for himself, and at the same
        time fails to provide for his basic human
        needs—e.g., food, clothing, shelter, medical
        care, and reasonable safety—it transgresses




6
  The cruel-and-unusual-punishments clause is incorporated against the
states by the Due Process Clause of the Fourteenth Amendment. See
McDonald v. City of Chicago, 

, 764 n.12 (2010) (citing
Robinson v. California, 

 (1962)).
20             HAMPTON V. STATE OF CALIFORNIA


       the substantive limits on state action set by
       the Eighth Amendment.

Helling v. McKinney, 

 (1993) (alterations in
original) (quoting DeShaney v. Winnebago Cnty. Dep’t of
Soc. Servs., 

 (1989)). Under the
Eighth Amendment, then, “prison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical
care, and must ‘take reasonable measures to guarantee the
safety of the inmates.’” Farmer, 

 (quoting
Hudson v. Palmer, 

 (1984)). The
Amendment’s protections extend to “condition[s] of
confinement that [are] sure or very likely to cause serious
illness and needless suffering” in the future. Helling, 

. For instance, the Supreme Court has held that
involuntarily exposing an inmate to secondhand tobacco
smoke by requiring him to bunk with a cellmate who smokes
continuously can form the basis of an Eighth Amendment
claim. See 

. So too can exposing inmates to
“infectious maladies” such as hepatitis. See 

 at 33 (citing
Hutto v. Finney, 

 (1978)).
    In such circumstances, it is a “prison official’s
‘deliberate indifference’ to a substantial risk of serious harm
to an inmate” that violates the Eighth Amendment. Farmer,
511 U.S. at 828. This type of Eighth Amendment claim has
an objective component and a subjective component. An
inmate must allege that the deprivation was, objectively,
“sufficiently serious.” Id. at 834 (quoting Wilson v. Seiter,

 (1991)). The inmate must also allege that
the defendant official acted, subjectively, with “deliberate
indifference” to inmate health or safety. 

 (quoting Wilson,

).
               HAMPTON V. STATE OF CALIFORNIA             21


                             1.
    The objective component of this claim requires a
plaintiff to plausibly allege that it is “contrary to current
standards of decency for anyone to be . . . exposed against
his will” to the relevant hazard. Helling, 

. In
other words, the resulting risk must not be one that “society
chooses to tolerate.” 

.
    In Hines v. Youseff, 

 (9th Cir. 2019), we
rejected an Eighth Amendment claim based on a risk that we
held society had chosen to tolerate: Valley Fever. 

. We noted that millions of people were voluntarily
living and working in the Central Valley of California, even
though doing so put them at a heightened risk of contracting
Valley Fever from the presence of certain fungal spores
there. 

 We also noted that there was “no evidence in the
record that ‘society’s attitude had evolved to the point that
involuntary exposure’” to Valley Fever “violated current
standards of decency.” 

 at 1232 (quoting Helling, 

).
    The differences between society’s responses to Valley
Fever and to COVID-19 in the relevant time periods are
plain. The Complaint describes the drastic steps that state
and local governments took to prevent anyone from being
involuntarily exposed to COVID-19, including shelter-in-
place orders and mask mandates whose violations were
punishable as misdemeanors. It also alleges that Marin
County (where San Quentin is located) explained that the
purpose of its shelter-in-place order was “to slow virus
transmission as much as possible.” Plaintiff has thus
sufficiently alleged that a “societal consensus” had emerged
by May 2020 that the risk of contracting COVID-19 was
22                 HAMPTON V. STATE OF CALIFORNIA


“intolerably grave” such that involuntarily exposing inmates
to the disease violated then-current standards of decency. Id.
                                    2.
    The subjective component of this Eighth Amendment
claim requires a plaintiff to allege that officials “kn[ew] of
and disregard[ed] an excessive risk to inmate health or
safety.” Farmer, 

. That is, the officials must
have been “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists” and must
have actually “draw[n] the inference.” 

 Even so, “an
Eighth Amendment claimant need not show that a prison
official acted or failed to act believing that harm actually
would befall an inmate; it is enough that the official acted or
failed to act despite his knowledge of a substantial risk of
serious harm.” 

.
    In Polanco, we considered whether many of the same
officials who are defendants here were deliberately
indifferent toward the health and safety of a San Quentin
employee. See 

. We held that the
allegations in Polanco described a “textbook case of
deliberate indifference: Defendants were repeatedly
admonished by experts that their COVID-19 policies were
inadequate, yet they chose to disregard those warnings.” 

.7
   Polanco controls here. Plaintiff’s allegations regarding
Defendants’ mental states mirror nearly word-for-word the


7
  Polanco involved a claim under the state-created-danger doctrine,
which is rooted in the Fourteenth Amendment. See 

.
Such a claim requires the plaintiff to allege that the defendants acted with
subjective deliberate indifference, see 

 at 928 & n.7—the same mental
state required here.
               HAMPTON V. STATE OF CALIFORNIA               23


allegations in Polanco. And although we recognize two
differences between this case and Polanco, neither changes
our conclusion that the allegations describe deliberate
indifference.
    The first difference is about whose safety Defendants
allegedly disregarded: Here, it is a San Quentin inmate,
whereas in Polanco it was a San Quentin employee. This
difference is immaterial. The fact that Defendants “did not
take precautions to avoid transferring COVID-positive
inmates to San Quentin or to decrease the likelihood that
COVID-19 would spread” once the inmates arrived, 

, shows a conscious disregard to the health and safety of
San Quentin employees and inmates alike.
    The second difference is that, although the complaints in
both cases allege that prison officials failed to provide masks
and other personal protective equipment to prison inmates
and staff, only the Polanco complaint additionally alleges
that masks and protective equipment were “easily
obtainable.” 

. The absence of that allegation here
does not undermine Plaintiff’s claim of deliberate
indifference. If masks and personal protective equipment
were not available, Defendants would have understood that
it was particularly important to avoid transferring COVID-
positive inmates to San Quentin, where the architecture
would make difficult isolating inmates to prevent COVID’s
spread. The absence of masks also would have made even
clearer the importance of properly testing and screening
inmates prior to any transfer. On the other hand, if masks
and protective equipment were available, the choice not to
use them would reflect disregard for prisoner safety.
Accordingly, whether masks were available or not, Plaintiff
has plausibly alleged that Defendants acted with knowing
disregard for the health and safety of San Quentin inmates.
24                HAMPTON V. STATE OF CALIFORNIA


    Defendants contend that we should nonetheless conclude
that they were not deliberately indifferent because a report
prepared by California’s Office of the Inspector General
(“OIG Report” or “Report”) shows that they took reasonable
steps to mitigate the risks from the transfer. See Farmer, 

 (“[P]rison officials who act reasonably cannot be
found liable under the Cruel and Unusual Punishments
Clause.”); Office of the Inspector General, COVID-19
Review Series Part 3 (Feb. 2021) [hereinafter OIG Report],
https://perma.cc/5W6G-27N3. We disagree.8
    The OIG Report was prepared at the request of the
California Assembly and analyzes the “decision to transfer
medically vulnerable incarcerated persons” from CIM to San
Quentin. OIG Report at i. Although Defendants argue that
the Report supports their position that they were not
deliberately indifferent, the Report in fact strengthens
Plaintiff’s case.
    The Report’s description of the transfer is very similar to
the allegations in the Complaint. See id. at 1-5. But the
Report contains additional details that bolster Plaintiff’s
assertion that prison executives9 were aware of, yet

8
  Defendants argue that the OIG Report was incorporated into the
Complaint by reference. Plaintiff does not object to our consideration of
the Report. Because we hold that Plaintiff prevails whether or not we
consider the Report, we need not decide whether it was incorporated into
the Complaint by reference.
9
 The OIG Report does not refer to prison executives by name, instead
using generic titles such as “California Institution for Men Medical
Executive” and “[California Correctional Health Care Services]
Director.” OIG Report at 2. We therefore cannot be sure that the
executives referenced in the Report are among the named Defendants.
Still, the Report bolsters Plaintiff’s claim by showing that at least some
prison executives were aware of the risks associated with the transfer.
               HAMPTON V. STATE OF CALIFORNIA              25


consciously disregarded, the risks associated with the
transfer. For instance, as documented in the Report, a CIM
employee emailed a CDCR Manager three days before the
transfer expressing concerns about the speed with which the
transfer was taking place: “It’s difficult to get things right
when there is a rush. We have a lot to consider with this
whole COVID issue. I’m surprised HQ wants to move our
inmates right now. But we have to make sure we are not
infecting another institution.” Id. at 19. The email went on
to draw from an experience in which CIM had moved 120
inmates from one part of the prison to another, noting that
“many of those guys came up positive two weeks later,”
“contaminat[ing]” a new section of the prison. Id. And in
response to the decision to place inmates on buses in
numbers exceeding CDCR’s COVID-capacity limits, a
supervising nurse asked a prison executive: “What about
Patient safety? What about COVID precautions?” Id. at 20.
     Other emails documented in the OIG Report demonstrate
that prison staff were aware that soon-to-be-transferred
inmates’ test results were dangerously out of date. Just days
before the transfer, a supervising nurse at CIM emailed a
CIM medical executive alerting the executive to the fact that
some of the inmates set to be transferred had not been tested
for COVID-19 for nearly a month. The nurse asked if the
inmates would be “re-swabb[ed]” before the transfer. Id. at
21. Eleven minutes later, the medical executive responded
with an email that said only: “No reswab[b]ing.” Id.
Another nurse emailed an executive cautioning that “the risk
of transferring patients tested almost one month ago is high
for poss[ible] covid spread” and that they should “slow down
a little and do it right.” Id.
    Such details in the OIG Report reinforce Plaintiff’s
allegations by showing how prison executives brushed away
26              HAMPTON V. STATE OF CALIFORNIA


repeated warnings that they were proceeding in an unsafe
manner. Whether or not we consider the Report, Plaintiff
has adequately alleged that Defendants acted with deliberate
indifference toward the health and safety of San Quentin
inmates, including Hampton.
                               B.
    The Eighth Amendment right at issue here was also
“clearly established at the time of the violation.” Stewart v.
Aranas, 

 (9th Cir. 2022).
    For the unlawfulness of an officer’s conduct to be
“clearly established,” it must be true that, “at the time of the
officer’s conduct, the law was sufficiently clear that every
reasonable official would understand that what he is doing is
unlawful.” District of Columbia v. Wesby, 

 (2018) (quotation marks omitted). The Supreme Court
has emphasized that determining whether the law was
clearly established “must be undertaken in light of the
specific context of the case, not as a broad general
proposition.” Saucier v. Katz, 

, 201 (2001),
abrogated on other grounds by Pearson v. Callahan, 

 (2009). For this reason, “it is not sufficient that
Farmer clearly states the general rule that prison officials
cannot deliberately disregard a substantial risk of serious
harm to an inmate.” Est. of Ford v. Ramirez-Palmer, 

 (9th Cir. 2002). To be clearly
established, the relevant right must have been defined more
narrowly.
    Still, applying this doctrine here, Plaintiff is not required
to point to a prior case holding that prison officials can
violate the Eighth Amendment by transferring inmates from
one prison to another during a global pandemic. Binding
caselaw “need not catalogue every way in which” prison
               HAMPTON V. STATE OF CALIFORNIA              27


conditions can be constitutionally inadequate “for us to
conclude that a reasonable official would understand that his
actions violated” an inmate’s rights. Castro v. County of Los
Angeles, 

 (9th Cir. 2016) (en banc).
Rather, “a right is clearly established when the ‘contours of
the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.’”

 (alteration in original) (quoting Serrano v. Francis, 

 (9th Cir. 2003)).
    Castro serves as a useful guide for articulating the right
at issue here at the proper level of generality. There, an
inmate asserted an Eighth Amendment claim after being
severely beaten by his cellmate. Sitting en banc, we
described the “contours” of the relevant Eighth Amendment
right in that case as the inmate’s “right to be free from
violence at the hands of other inmates.” 

 Articulated at
that same level of generality, the right at issue here is an
inmate’s right to be free from exposure to a serious disease.
That right has been clearly established since at least 1993,
when the Supreme Court decided Helling v. McKinney, 

 (1993).
    In Helling, an inmate alleged that he was assigned a
cellmate who smoked five packs of cigarettes a day,
exposing the inmate to dangerous chemicals and the risk of
future health problems. 

. The Supreme Court held
that the inmate had stated an Eighth Amendment claim by
alleging that prison officials had, “with deliberate
indifference, exposed [the inmate] to levels of” secondhand
tobacco smoke “that pose[d] an unreasonable risk of serious
damage to his future health.” 

. In reaching that
holding, the Court analogized to other fact patterns that it
treated as obvious violations of the Eighth Amendment.
“[A] prison inmate also could successfully complain about
28               HAMPTON V. STATE OF CALIFORNIA


demonstrably unsafe drinking water without waiting for an
attack of dysentery,” the Court reasoned. 

. So too
would it be an Eighth Amendment violation for “prison
officials [to be] deliberately indifferent to the exposure of
inmates to a serious, communicable disease.” Id.10 Helling
sent a clear message to prison officials: The Eighth
Amendment requires them to reasonably protect inmates
from exposure to serious diseases.
    Our circuit’s precedent reinforces the conclusion that
this right was clearly established in the spring of 2020, when
the events at issue here occurred. In Hoptowit v. Spellman,

 (9th Cir. 1985), we held that a “lack of
adequate ventilation and air flow undermin[ing] the health
of inmates and the sanitation of” a prison violated the Eighth
Amendment. 

; see also Keenan v. Hall, 

 (9th Cir. 1996) (citing Hoptowit for the principle
that “[i]nadequate ‘ventilation and air flow’ violates the
Eighth Amendment if it ‘undermines the health of inmates
and the sanitation of the penitentiary’”). In Wallis v.
Baldwin, 

 (9th Cir. 1995), we held that an
inmate stated an Eighth Amendment claim after being
assigned prison work that exposed him to asbestos without
being provided sufficient protective gear. 

. And
in Parsons v. Ryan, 

 (9th Cir. 2014), we held
that a prison’s failure to “provide prisoners with . . .
protection from infectious diseases” (among other



10
   Helling also cited with approval a Fifth Circuit decision that had
recognized an Eighth Amendment violation based in part on the fact that
a prison permitted “inmates with serious contagious diseases . . . to
mingle with the general prison population.” Gates v. Collier, 

 (5th Cir. 1974); see Helling, 

 (citing Gates).
                HAMPTON V. STATE OF CALIFORNIA               29


deficiencies) was “firmly established in our constitutional
law.” Id. at 664, 676 (citing Helling, 

).
    In light of these cases, all reasonable prison officials
would have been on notice in 2020 that they could be held
liable for exposing inmates to a serious disease, including a
serious communicable disease. Although “COVID-19 may
have been unprecedented, . . . the legal theory that Plaintiff[]
assert[s] is not.” Polanco, 

.
                              C.
    Defendants advance two further arguments in support of
their position that they are entitled to qualified immunity at
this stage of the proceedings, neither of which is persuasive.
                              1.
    Defendants first argue that they faced an impossible
choice: keep high-risk CIM inmates at a prison experiencing
an active COVID-19 outbreak or transfer the inmates out of
that prison. Either way, they argue, they would have placed
some set of inmates in danger and risked liability for doing
so. Defendants contend that it would be inconsistent with
the spirit of the qualified immunity doctrine to deny them
immunity in a situation in which they had no good options.
    Defendants’ argument fails because it rests on a premise
contrary to the Complaint’s allegations. Plaintiff does not
challenge Defendants’ decision to transfer inmates out of
CIM. Rather, Plaintiff challenges decisions that Defendants
made in carrying out the transfer that increased the risk to
San Quentin inmates without decreasing the risk to the
transferred inmates.         Those decisions include:
(1) transferring inmates to San Quentin, as opposed to a
prison with architecture more conducive to quarantining a
large group of inmates; (2) transferring inmates without
30                HAMPTON V. STATE OF CALIFORNIA


proper testing or screening; (3) exceeding CDCR’s COVID-
capacity limits on the buses; and (4) failing to enact post-
transfer safety protocols such as mandatory masking. In
other words, as alleged, a good option did exist; the
Complaint suggests that, had Defendants tried, they could
have moved the CIM inmates without exposing other
inmates to an unreasonable risk. See Polanco, 

.
                                  2.
    Defendants next contend that they were just following
orders: The court-appointed Receiver’s involvement in the
decisions surrounding the transfer, they say, absolves them
of any responsibility for the transfer’s consequences.
    For this argument, Defendants rely on the OIG Report.11
But that Report does not show that the Receiver was
responsible for the relevant decisions. The OIG Report does
suggest that the Receiver was involved in some relevant
decision-making. See OIG Report at 9 (noting that “[t]he
decision to transfer incarcerated persons between prisons
was driven by a collaboration between executives from
[California Correctional Health Care Services] and from
[CDCR],” and thereby implying that the Receiver—who
oversees California Correctional Health Care Services—
likely played some role); id. at 30 (reproducing emails that
suggest that prison officials felt pressure from the Receiver
to move quickly to protect high-risk CIM inmates). But the

11
  Defendants also point to testimony that the Receiver gave before the
California State Senate, which they argue was incorporated into the
Complaint by reference. Because Defendants’ assertion of immunity
would fail with or without consideration of that testimony, see Polanco,

, we need not decide whether the testimony was
incorporated into the Complaint by reference.
                HAMPTON V. STATE OF CALIFORNIA               31


Report does not indicate that the Receiver was involved in—
let alone that he directed or approved—the decision to
transfer the inmates to San Quentin as opposed to
somewhere else. Nor does the Report suggest that the
Receiver was aware of the outdated test results, the decision
to house the transferred inmates in open-air cells, or the other
post-transfer decisions that allegedly contributed to the
outbreak at San Quentin.
    In discovery, the parties will have the opportunity to
explore the scope of the Receiver’s involvement in the
transfer.    If discovery reveals that Defendants were
complying with orders from the Receiver in all relevant
actions underlying Plaintiff’s claims, then Defendants may
be entitled to qualified immunity. See Hines, 

 (holding that “state officials could have reasonably
believed that their actions were constitutional so long as they
complied with the orders” from a federal receiver and
overseeing court). But at this early stage in the proceedings,
we cannot reach that conclusion.
                              V.
    Finally, Defendants argue that the district court should
have dismissed Plaintiff’s state law claims because
Defendants are entitled to certain immunities under
California law. Once again, we must first determine whether
we can consider this argument immediately under the
collateral order doctrine, or whether it must await an appeal
from a final judgment.
    “For claims of immunity under state law, ‘the
availability of an [interlocutory] appeal depends on whether,
under state law, the immunity functions as an immunity from
suit or only as a defense to liability.’” Tuuamalemalo v.
Greene, 

 (9th Cir. 2019) (quoting Liberal
32                 HAMPTON V. STATE OF CALIFORNIA


v. Estrada, 

 (9th Cir. 2011)). Although
the former may be immediately appealable, the latter is not.
See 

    Defendants argue that Plaintiff’s state law claims are
barred by six immunities under California law.12 Four of the
immunities apply to government employees and are codified
in the Government Claims Act. See 

-
998.3. The other two apply to correctional and emergency-
service professionals and are codified in the California
Emergency Services Act. See 

-
8669.7. We previously held that one of the immunities in the
Government Claims Act, 

, was an
immunity from suit. See Liberal, 

.
    A recent decision by the California Supreme Court
makes us revisit that holding. In Quigley v. Garden Valley
Fire Protection District, 

 (2019), the
California Supreme Court considered a question similar to
the one we now confront: whether an immunity provision in
the Government Claims Act “serves as a limitation on the
fundamental jurisdiction of the courts” or rather “operates as
an affirmative defense to liability.” 

. To answer
that question, the court recounted the history of California
immunity doctrine. “At common law,” the court explained,
“the doctrine of sovereign immunity had two strands: a
procedural immunity from suit without the government’s
consent and a substantive immunity from liability for the
conduct of government.” 

. The procedural
immunity from suit was largely eliminated by the legislature
in 1885. See 

 But, the court explained, the substantive
immunity—immunity from liability—lived on in the state’s
common law. 

. In the 1960s, California

12
     See 

, 820.8, 845.2, 855.4, 8658, 8659.
                   HAMPTON V. STATE OF CALIFORNIA                         33


abolished that common law immunity in favor of a statutory
approach that eventually became the Government Claims
Act. Id. at 803, 812. Reasoning from history, the California
Supreme Court concluded that the Government Claims Act’s
immunity provisions were “addressed to questions of
substantive liability.” Id. at 813. The analysis in Quigley
dictates that the Government Claims Act immunities on
which Defendants rely are defenses to liability, not
immunities from suit.13 Our prior holding that section 820.2
is an immunity from suit has thus been “undercut” by “an
intervening decision from a state court of last resort . . . ‘in
such a way that the cases are clearly irreconcilable,’” making
that holding effectively overruled by the California Supreme
Court. Scafidi v. Las Vegas Metro. Police Dep’t, 

, 963 (9th Cir. 2020) (quoting Miller v. Gammie, 

 (9th Cir. 2003) (en banc)).14


13
  That conclusion is supported by the statutes themselves, which provide
that public employees are not “liable” for some class of injuries. See 

 (“[A] public employee is not liable for an injury
resulting from his act or omission where the act or omission was the
result of the exercise of the discretion vested in him.”); § 820.8 (“[A]
public employee is not liable for an injury caused by the act or omission
of another person.”); § 845.2 (“[N]either a public entity nor a public
employee is liable for failure to provide a prison, jail or penal or
correctional facility . . . sufficient equipment, personnel or facilities.”);
§ 855.4 (“Neither a public entity nor a public employee is liable for an
injury resulting from the decision to perform or not to perform any act to
promote the public health of the community by preventing disease.”).
14
  Both parties note that, prior to its decision in Quigley, the California
Supreme Court once referred to the immunity conferred by section 820.2
as “immunity from suit.” Caldwell v. Montoya, 

(1996) (“[Section 820.2] generally affords a public employee personal
immunity from suit when the act or omission for which recovery is sought
34                 HAMPTON V. STATE OF CALIFORNIA


    The immunities defined in the California Emergency
Services Act function the same way as those in the
Government Claims Act. Those provisions are also phrased
as immunities from liability, just as the Government Claims
Act immunities are.15 It would be odd for California to
assign similarly worded immunities different effects, and we
see no reason to interpret the statutes as doing so.
    Because the state law immunities on which Defendants
rely here are immunities from liability, not from suit,
Defendants cannot invoke the collateral order doctrine to
immediately appeal the district court’s rejection of those
state law defenses. See Tuuamalemalo, 

. We
thus lack jurisdiction to review that part of Defendants’
appeal.



resulted from ‘the exercise of the discretion vested in him.’” (emphasis
added) (quoting 

)). But Caldwell concerned only
“a narrow” issue about the scope of section 820.2, not whether the
provision serves as an immunity from suit or from liability. See id. at
975-76. And elsewhere in the opinion, the court described the
immunities in the Government Claims Act as immunities “from
liability.” See id. at 980 (“[The Government Claims Act] establishes the
basic rules that public entities are immune from liability except as
provided by statute.” (emphasis omitted)). We therefore think that
Caldwell’s passing reference to section 820.2 as an “immunity from suit”
was merely imprecise wording in a case where the court had no reason
to distinguish between an immunity from suit and a defense to liability.
15
   Compare 

 (“Such person shall not be held
liable, civilly or criminally, for acts performed pursuant to this section.”),
and § 8659(a) (“Any physician or surgeon . . . who renders services
during . . . a state of emergency . . . at the express or implied request of
any responsible state or local official or agency shall have no liability for
any injury sustained by any person by reason of those services.”), with
supra note 13.
                    HAMPTON V. STATE OF CALIFORNIA   35


                                 VI.
  For the foregoing reasons, we AFFIRM in part,
REVERSE in part,16 and DISMISS in part.




16
     See supra note 1.