United States District Court, E.D. Pennsylvania
tragic case arises from the death of three individuals. The
decedents are Alita Johnson (“Alita”), Haashim
Johnson (“Haashim”), and Horace McCoullem
“Decedents”). Plaintiff Tamika Johnson
(“Plaintiff”) is the administratrix of their
estates. On March 20, 2018, a fire ignited on the
second floor of a residential building that contained several
apartments. Alita, Haashim, and Horace lived in one apartment
on the third floor. Minutes after the fire began, Alita
citizen calls 911 to report a fire or request emergency
services, the 911 operator that answers the call usually
transfers it to a Philadelphia Fire Department Operator
(“PFD Operator”). The PFD Operator then
coordinates with a Philadelphia Fire Department dispatcher
(“PFD Dispatcher”) to send firefighters and
Emergency Medical Services (“EMS”) personnel to
the scene, if necessary.
expected, when Alita called 911, she spoke to a 911 operator.
She told the 911 operator that there was a fire at her home,
gave her the address, and mentioned that she was on the third
floor of the building. Following the procedure described
above, the 911 operator transferred her call to a PFD
Operator. When the call was transferred, the 911 Operator
conveyed to the PFD Operator an incorrect address for Alita.
As a result, the PFD Operator conveyed the incorrect address
to the PFD Dispatcher, who dispatched firefighters to the
wrong location. When she dispatched the firefighters, the PFD
Dispatcher told them that she received “reports”
concerning an area on the third floor. Regarding the
“reports, ” it is unclear what information she
reported to the firefighters.
her first 911 call ended, Alita called 911 again and was
transferred directly to the PFD Operator. She repeated that a
fire had ignited in her building and confirmed that she was
waiting for help in an area on the third floor. In response,
the PFD Operator instructed her to seclude herself, Horace
and Haashim in a room on the third floor, with the door
closed and the window open until firefighters arrived to
rescue them. Realizing at this point that she originally
communicated the incorrect address, the PFD Operator then
relayed Alita's correct address to the PFD Dispatcher,
who rerouted the firefighters to Alita's building. When
the PFD Dispatcher communicated the correct address to the
firefighters, she did not reiterate the “report”
she received about the third floor.
arrived at the building with no knowledge that Alita, Horace
and Haashim were waiting to be rescued on the third floor.
After extinguishing the fire on the second and third floors,
they left the premises. Alita, Horace, and Haashim remained
secluded in a room on the third floor of the building, where
they died from smoke inhalation. City of Philadelphia
(“City”) officials discovered their bodies three
sued the City of Philadelphia, the Philadelphia Fire
Department,  Adam Thiel, Philadelphia Fire Department
Operator Jane Doe, and Philadelphia Fire Department
Dispatcher Jane Doe (collectively, “Defendants”).
She seeks damages for the following claims:
• Violation of Civil Rights Under Fourteenth Amendment
for a State-Created Danger against the PFD Operator (Count
• Violation of Civil Rights Under Fourteenth Amendment
for a State-Created Danger against the PFD Dispatcher (Count
• Violation of Civil Rights Under Fourteenth Amendment
Based on Monell Liability against the City of
Philadelphia (Count III);
• Violation of Civil Rights Under Fourteenth Amendment
Based on a Special Relationship against Jane Doe (PFD)
Operator and the City of Philadelphia (Count IV);
• Violation of Civil Rights and Equal Protection Under
the Law against Philadelphia Fire Commissioner Adam Thiel
• Survival Actions against the City of Philadelphia
(Count VI); and
• Wrongful Death (Count VII) against the City of
(Doc. No. 1.)
the Court is Defendants' Motion to Dismiss the Complaint
in its entirety. (Doc. No. 9.) Plaintiff filed a Response in
Opposition (Doc. No. 10) and Defendants filed a Reply (Doc.
No. 11.) Plaintiff then filed a Sur-Reply (Doc. No. 12). For
reasons discussed infra, Defendants' Motion to
Dismiss will be granted in part and denied in part.
building that caught fire was a single-family, three-story
row home in Philadelphia, Pennsylvania. (Doc. No. 1 ¶
128.) Although the property was not zoned or licensed as a
multi-family dwelling or boarding house, the owners of the
building illegally rented each floor to one or more families,
with each tenant family occupying a separate floor.
(Id. ¶ 129.) When it caught fire, the building
did not contain functioning smoke detectors or adequate fire
escapes. (Id. ¶ 131.) As noted above, Decedents
lived together in a unit on third floor. (Id. ¶
The First 911 Call
March 20, 2018, around 11:30 p.m., a fire ignited inside of a
second-floor unit of the building. (Id. ¶ 26.)
Its cause is unknown. At 11:38 p.m., Alita called 911 to
report the fire. (Id. ¶ 27.) The first person
she spoke to was a 911 Operator. After stating that she was
calling to report a fire, she told the 911 Operator her
address. (Id.) Following the protocol described
above, the 911 Operator transferred her call to the PFD
Operator. While transferring the call, the 911 Operator did
not convey to the PFD Operator the correct address that Alita
gave her. (Id. ¶ 29.) She relayed the incorrect
street number. (Id.) The PFD Operator provided this
erroneous address to the PFD Dispatcher, who sent
firefighters to the wrong location. (Id. ¶ 30.)
When the PFD Dispatcher sent firefighters to the incorrect
address, she told them that she was getting
“reports” concerning the third-floor rear of the
burning building. (Id. ¶ 31.)
the allegations in the Complaint do not explain what
“reports” the PFD Dispatcher received from the
PFD Operator that were subsequently conveyed to firefighters.
Although Alita told the 911 Operator that she was on the
third floor of the burning building with two other people,
(id. ¶ 25), it is unclear if this information
was conveyed to the PFD Operator and then to the PFD
Dispatcher when her call was transferred. (Id.
The Second 911 Call
first 911 call dropped. At 11:40 p.m., she called 911 a
second time and was transferred from the 911 Operator that
answered her second call directly to the PFD Operator.
(Id. ¶ 32.) Alita repeated that she was calling
about a fire emergency in her building. (Id. ¶
33.) In response, the PFD Operator instructed Alita to go to
a room in the back of the building, shut the door, open the
window, and place a towel at the bottom of the door.
(Id. ¶ 34.) The PFD Operator assured Alita that
rescuers would arrive shortly. (Id.) The PFD
Operator then relayed the correct address of the burning
building to the PFD Dispatcher, who rerouted the
firefighters. (Id. ¶ 35.) When the PFD Operator
told the PFD Dispatcher the correct address, she did not
state that she instructed three individuals to wait for help
in a room on the third floor. When the PFD Dispatcher
rerouted the firefighters, she did not repeat to them that
she had received reports concerning the third floor of the
11:42 p.m., during the same call, Alita confirmed to the PFD
Operator that she followed the earlier instructions and
closed herself inside a room on third floor with Horace and
Haashim. (Id. ¶ 36.) She specifically confirmed
that they were on the third floor “all the way in the
back” of the house. (Id. ¶ 37.) Alita
remained on the phone with the PFD Operator while multiple
firefighter units, who were equipped with ladder trucks,
arrived at the residence between 11:42 p.m. and 11:44 p.m.
(Id. ¶ 38.) Because they relied on the PFD
Operator's assurances that firefighters were coming to
rescue them, Decedents did not attempt to escape the burning
building in other ways available to them. (Id.
Operator stayed on the phone with Alita until 11:48 p.m.,
when the second 911 call disconnected. (Id. ¶
44.) Throughout the call, the PFD Operator constantly assured
Alita that firefighters were on their way. (Id.
firefighters arrived at the building, they reached the
property's second floor through the interior stairs and
second-floor windows. (Id. ¶ 42.) They
extinguished the fire on the second floor and then searched
for survivors there. (Id. ¶ 43.) After ensuring
that the second floor was clear of inhabitants, they moved to
the third floor by using the interior stairs and third-floor
windows. (Id. ¶¶ 45, 46.)
12:00 a.m., the interior steps between the second and third
floor collapsed. (Id. ¶ 48.) At this point,
there were four firefighters on the third floor who needed to
be rescued from the building by other firefighters.
(Id. ¶ 49.) At 12:04 a.m., firefighters placed
exterior ladders at the front and rear windows of the third
floor to rescue the firefighters that remained inside.
(Id. ¶ 50.)
12:14 a.m., firefighters on the third floor reported that the
fire had been “knocked down, ” meaning it was
completely extinguished. (Id. ¶ 53.) All
firefighters then withdrew from the building. (Id.
¶ 54.) They did not know that Alita, Horace and Haashim
were still on the third floor expecting to be rescued. At
12:19 a.m., firefighters reported to the PFD that the fire at
this location was under control. (Id. ¶ 56.)
The PFD considered this to be the end of the emergency.
days later, PFD personnel discovered the unburned bodies of
Decedents on the third floor. (Id. ¶ 59.) Each
Decedent's cause of death was smoke inhalation.
(Id. ¶ 60.) Therefore, they did not die from
actual physical contact with the fire, but rather from
excessive exposure to smoke while waiting for the
firefighters. (Id. ¶ 61.)
Decedents' bodies were discovered, Defendant Adam Thiel,
the City's Fire Commissioner (“Commissioner”
or “Thiel”) told the surviving family members
that firefighters had been unable to access the third-floor
unit of the building during the fire, and therefore could not
have saved the Decedents from their fatal exposure to smoke.
(Id. ¶¶ 9, 62.) Because some firefighters
had accessed the third floor during the fire to save other
firefighters that remained inside of the building, Plaintiff
alleges in the Complaint that Commissioner's Thiel's
statement to Decedents' family members was false.
stated previously, the Decedents were tenants of the
single-family, three-story house that caught fire.
(Id. ¶ 128.) The property was owned by Granite
Hill Properties, LLC (“Granite Hill”) and its
principal officer, Tyrone Duren (“Duren”).
(Id. ¶ 127.) Also noted above, the property was
being illegally rented as a boarding house and did not
contain functioning smoke detectors or fire escapes.
(Id. ¶¶ 129, 131.)
2014, the City's Department of Licenses and Inspections
(“L&I”) sued Granite Hill and Duren for its
illegal operation of the property. (Id. ¶ 130.)
After the lawsuit was filed, Duren and Granite Hill agreed to
vacate the property, and turned it over to the City.
(Id. ¶¶ 131, 132.) While the property was
in the City's control, the City did not barricade or lock
the building to prevent people from entering. (Id.
¶ 136.) Despite the fact that Granite Hill and Duren
agreed to released control of the property to the City, it
continued to rent it to tenants illegally. (Id.
¶ 138.) It is unclear how they regained control of the
STANDARD OF REVIEW
ruling on a Rule 12(b)(6) motion, the court must accept the
facts pled in the complaint as true and construe them in the
light most favorable to the plaintiff.” Adams v.
U.S. Airways Group, Inc., 978 F.Supp.2d 485, 489 (E.D.
Pa. 2013) (citing Semerenko v. Cendant Corp., 223
F.3d 165, 173 (3d Cir. 2000)). “The court may dismiss a
complaint or claim only if it is clear that no relief could
be granted under any set of facts that could be proved
consistent with the allegations.” Id.
“[T]he defendant has the burden of showing no claim has
been stated.” Kehr Packages v. Fidelcor, Inc.,
926 F.2d 1406, 1409 (3d Cir. 1991). “[T]he facts
alleged must be taken as true and a complaint may not be
dismissed merely because it appears unlikely that the
plaintiff can prove those facts or will ultimately prevail on
the merits.” Phillips v. County of Allegheny,
515 F.3d 224, 231 (3d Cir. 2008). The Rules of Civil
Procedure “do  not impose a probability requirement
at the pleading stage, but instead simply call  for enough
facts to raise a reasonable expectation that discovery will
reveal evidence of” the elements necessary to sustain
the plaintiff's claims. Id. (citing Ashcroft
v. Iqbal, 556 U.S. 662 (2009)).
motion to dismiss standard under Federal Rule of Civil
Procedure 12(b) for failure to state a claim is set forth in
Ashcroft v. Iqbal, 556 U.S. 662 (2009). After
Iqbal, has been made clear that “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to defeat a
Rule 12(b)(6) motion to dismiss. Id. at 678; see
also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
“To survive dismissal, ‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426
(3d Cir. 2018) (quoting Iqbal, 556 U.S. at 678).
Facial plausibility is “more than a sheer possibility
that a defendant has acted unlawfully.” Id.
(quoting Iqbal, 556 U.S. at 678). Instead,
“[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting
Iqbal, 556 U.S. at 678).
complaint must do more than allege a plaintiff's
entitlement to relief, it must “show” such an
entitlement with its facts. Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing
Phillips v. County of Allegheny, 515 F.3d 224,
234-35 (3d Cir. 2008). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]'-‘that the pleader is
entitled to relief.'” Iqbal, 556 U.S. at
679 (alteration in original) (citation omitted). The
“plausibility” determination is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
Counts I through IV of the Complaint, Plaintiff sets forth
four claims that each stem from an alleged violation of the
Decedents' substantive due process rights under the
Fourteenth Amendment of the United States Constitution. These
claims invoke different theories of liability pursuant to 42
U.S.C. § 1983, which as discussed infra,
provides a remedy for a federal civil rights violation
committed by a person acting under the color of state law.
Count V, Plaintiff claims that the City of Philadelphia
violated Decedents' rights to equal protection under the
Fourteenth Amendment of the United States Constitution. And
in Counts VI and VII, Plaintiff brings two state law claims
against the City of Philadelphia. The Court will now address
Section 1983 Claims (Counts I through IV)
U.S.C. § 1983 (“Section 1983”) provides as
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
42 U.S.C. § 1983. This statute does not create
substantive rights, but instead provides a remedy for
violations of rights established elsewhere. City of
Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). In
order to state a claim under Section 1983, a plaintiff must
allege that a person acting under the color of state law
caused a deprivation of a right secured by the Constitution.
Parratt v. Taylor, 451 U.S. 527, 535
(1981); Mark v. Borough of Hatboro, 51 F.3d 1137,
1141 (3d Cir.1995).
Counts I, II, III, and IV, Plaintiff specifically averred
that the Commonwealth, acting through Defendants City of
Philadelphia, the PFD Operator and the PFD Dispatcher,
violated the Decedents' “substantive due process
rights” under the Due Process Clause of the Fourteenth
Amendment. (Doc. No. 1.) The Due Process Clause of the
Fourteenth Amendment provides that “[n]o State . . .
shall deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV
initial point of reference for analyzing Plaintiff's
Section 1983 claims is DeShaney v. Winnebago County
Department of Social Services, where the United States
Supreme Court reviewed Section 1983 claims under the Due
Process Clause of the Fourteenth Amendment, and established a
general rule that the Due Process Clause imposes no duty on a
state to provide members of the general public with adequate
protective services. DeShaney v. Winnebago County
Dep't of Social Servs., 489 U.S. 189, 195 (1989).
This Court will first explain the Supreme Court's
reasoning in DeShaney, and then two exceptions to
its holding that inform Plaintiff's Section 1983 claims.
The Supreme Court's Holding in DeShaney
involved a four-year old child, Joshua DeShaney, who was
beaten so severely by his father that he suffered permanent
and profound retardation. DeShaney, 489 U.S. at 193.
Authorities in the Winnebago County Department of Social
Services (“Winnebago”) were aware that Joshua was
being abused by his father. Id. at 192. At one
point, they temporarily removed Joshua from the custody of
his father after Joshua was admitted to a hospital with
multiple bruises and abrasions. Id. When Joshua was
returned to his home, his continued abuse was reported by a
Winnebago caseworker who did nothing to intervene.
Id. at 192-93. Eventually, Joshua's father
finally beat him so badly that he suffered permanent injury.
and his mother sued Winnebago under Section 1983, alleging
that it violated Joshua's substantive due process right
to liberty by failing to intervene. Id. at 193. The
Supreme In Count III (against the City of Philadelphia),
Plaintiff brings a claim under Monell v. Dep't of
Soc. Serv. of City of New York, also discussed
infra, which is another avenue for liability under
42 U.S.C. § 1983. 436 U.S. 658 694 (1978). Court held
that the failure of a state or local governmental entity or
its agents to provide an individual with adequate protective
services does not amount to a violation of the
individual's due process rights. It explained:
[N]othing 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. The
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. It forbids the State itself to deprive
individuals of life, liberty, or property without “due
process of law, ” but its language cannot fairly be
extended to impose an affirmative obligation on the State to
ensure that those interests do not come to harm through other
means. Nor does history support such an expansive reading of
the constitutional text . . . [T]he Due Process Clause of the
Fourteenth Amendment was intended to prevent government ...