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Johnson v. City of Philadelphia

United States District Court, E.D. Pennsylvania

July 31, 2019

CITY OF PHLADELPHIA, et al., Defendants.


          SLOMSKY, J.


         This tragic case arises from the death of three individuals. The decedents are Alita Johnson (“Alita”), Haashim Johnson (“Haashim”), and Horace McCoullem (“Horace”) (collectively, “Decedents”). Plaintiff Tamika Johnson (“Plaintiff”) is the administratrix of their estates.[1] 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 called 911.

         When a 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.

         As 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.

         After 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.

         Firefighters 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 days later.

         Plaintiff sued the City of Philadelphia, the Philadelphia Fire Department, [2] 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 I);
• Violation of Civil Rights Under Fourteenth Amendment for a State-Created Danger against the PFD Dispatcher (Count II);
• 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 (Count V);
• Survival Actions against the City of Philadelphia (Count VI); and
• Wrongful Death (Count VII) against the City of Philadelphia.

(Doc. No. 1.)

         Before 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.


         The 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. ¶ 5.)

         A. The First 911 Call

         On 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.)

         Importantly, 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. ¶ 31.)

         B. The Second 911 Call

         Alita's 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 building. (Id.)

         At 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.[3] (Id. ¶ 40.)

         The PFD 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. ¶ 41.)

         C. Firefighters Arrival

         When 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.)

         Around 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.)

         At 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.

         Three 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.)

         After 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.

         D. The Building

         As 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.)

         In 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 property.[4]


         “When 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)).

         The 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).

         A 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 sense.” Id.


         In 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.

         In 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 each claim.

         A. Section 1983 Claims (Counts I through IV)

         42 U.S.C. § 1983 (“Section 1983”) provides as follows:

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 redress.

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).

         In 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.)[5] 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 § 2.

         The 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.

         1. The Supreme Court's Holding in DeShaney

         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. Id.

         Joshua 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 ...

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