Johnson v. City of Phila.

• Decision Date: 22 September 2020
• Docket Number: No. 19-2938,19-2938
• Parties: Tamika JOHNSON, Individually and as Administratrix of the Estates of Alita Johnson, Horace McCouellem, and Haashim Johnson, Appellant v. CITY OF PHILADELPHIA; Philadelphia Fire Department; Adam Thiel, Philadelphia Fire Department; Jane DOE, Philadelphia Fire Department Operator; Jane Doe, Philadelphia Fire Department Dispatcher
• Court: U.S. Court of Appeals — Third Circuit

975 F.3d 394

Tamika JOHNSON, Individually and as Administratrix of the Estates of Alita Johnson, Horace McCouellem, and Haashim Johnson, Appellant

v.CITY OF PHILADELPHIA; Philadelphia Fire Department; Adam Thiel, Philadelphia Fire Department; Jane DOE, Philadelphia Fire Department Operator; Jane Doe, Philadelphia Fire Department Dispatcher

No. 19-2938

United States Court of Appeals, Third Circuit.

Argued May 26, 2020

Opinion filed: September 22, 2020

OPINION

MATEY, Circuit Judge.

Alita Johnson, her son Haashim Johnson, and her stepfather Horace McCouellem died in a fire that engulfed their Philadelphia apartment. In the glare of hindsight, their deaths seem senseless. With the building already burning, Ms. Johnson called 911. A fire department operator instructed her to remain inside, promising help was on the way. But a cascade of errors followed: firefighters initially drove to the wrong location and then, once at the scene, never learned that Ms. Johnson and her family were waiting. So the firefighters extinguished the blaze without a search, leaving all three trapped in their home where they perished from smoke inhalation. Days would pass before firefighters returned and discovered their bodies.

Seeking answers and redress, the administratrix of the decedents’ estates sued the city and two fire department employees. Her claims rest largely on the theory that the defendants caused the deaths by making mistake after mistake. Few will deny the seriousness of those errors. Fewer still will deny that the grieving survivors deserve the peace that truth might bring. But not every injury has a legal remedy, and courts, particularly federal courts, may provide relief in limited circumstances. As those conditions do not exist here, we must affirm the District Court's decision to dismiss.

I. BACKGROUND

We sketch the story behind this action by drawing from the allegations in the complaint. As we review a decision granting a motion to dismiss, we assume those allegations are true and draw all reasonable inferences from them in the plaintiff's favor. See Haberle v. Troxell , 885 F.3d 170, 174 n.1 (3d Cir. 2018).

A. The Johnson Family's Death

Ms. Johnson, her son, and her stepfather (here, for convenience, "the Johnson Family") rented an apartment in a Philadelphia rowhome. Long before the fire, problems plagued the building. In 2014, the city's Department of Licenses and Inspections sued the building's owners, Granite Hill Properties LLC and Tyrone Duren, for illegally operating a boarding home. The owners agreed to vacate the property but later resumed renting to multiple tenants, including the Johnson Family.

Late one evening in 2018, a fire ignited on the building's second floor. Alita Johnson did what anyone would do and called 911. Once connected, the phone operator directed city firefighters to the address of the burning building. The incorrect address, it turns out, sending emergency responders the wrong way. In the meantime, 911 transferred Ms. Johnson to an operator with the Philadelphia Fire Department's emergency call center ("Operator").

Ms. Johnson told the Operator that she and her family were inside the burning building, in a room on the rear third floor. The Operator gave clear guidance in response: shut the door, place a towel across its bottom, and open a window. Ms. Johnson did as instructed. The Operator also encouraged Ms. Johnson to remain calm, explaining that rescuers were on the way. After a few minutes, for reasons unknown, the call disconnected. That was the last communication with the Johnson Family.

During the call, the Operator discovered the address error and relayed the correct address to a fire department dispatcher ("Dispatcher"), who rerouted the rescuers. But while the location of the fire was now correct, the scope of the emergency was not, since neither the Operator nor the Dispatcher told the firefighters that the Johnson Family was waiting inside the building. So the firefighters left after extinguishing the fire without ever looking for them. Days later, after relatives reported them missing, a full search of the building found their bodies, dead from smoke inhalation.

B. The Federal Civil Action

Tamika Johnson, the administratrix of the Johnson Family's estates (and the "Appellant"), then sued the Operator, the Dispatcher, the City of Philadelphia ("City"), and the City Fire Commissioner.¹ The defendants moved to dismiss the complaint and, after oral argument, the District Court granted their motion. This timely appeal followed.

II. DISCUSSION

Appellant claims that the Operator and the Dispatcher violated the Johnson Family's constitutional rights under what is known as the "state-created danger" theory, and that the City violated those rights under the theory outlined in Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). She also claims that the City acted negligently under Pennsylvania law. The District Court held that Appellant failed to state any claim upon which relief could be granted. Finding no error, we will affirm.²

A. State-Created Danger Claims

The District Court held that, as alleged, neither the Dispatcher nor the Operator was liable for the Johnson Family's harm. Because the Dispatcher did not act affirmatively, and because the Operator's behavior did not shock the conscience, we agree.

1. Origin of the State-Created Danger Theory of Liability

The state-created danger doctrine traces to a few words in the Supreme Court's opinion in DeShaney v. Winnebago County Department of Social Services , 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Like the case here, the facts were disturbing. County officials allegedly learned of a father's penchant for beating his son Joshua. Id. at 192–93, 109 S.Ct. 998. Rather than protect the defenseless child, the officials elected against intervening, and the dad's final attack caused "brain damage so severe that [the boy was] expected to spend the rest of his life confined to an institution." Id. at 193, 109 S.Ct. 998. Joshua and his mother then sued, alleging, novelly, that the officials’ failure to intervene violated the boy's constitutional rights. Id.

The Supreme Court rejected the claim. Such rights appear nowhere in the text of the Constitution, of course, and "the Due Process Clause[ ] generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." Id. at 196, 109 S.Ct. 998. Rather, only "in certain limited circumstances" does "the Constitution impose[ ] upon the State affirmative duties of care and protection with respect to particular individuals," such as prisoners and the "involuntarily committed." Id. at 198–99, 109 S.Ct. 998. In those cases, the State has taken an "affirmative act of restraining the individual's freedom to act on his own behalf," and that could be a " ‘deprivation of liberty’ triggering the protections of the Due Process Clause." Id. at 200, 109 S.Ct. 998. But there was not that kind of "special relationship" between the county and the young boy. Id. at 197, 201, 109 S.Ct. 998. Further, while the county "may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." Id. at 201, 109 S.Ct. 998.

From those simple words—"played no part in their creation" and "render him any more vulnerable"—sprang a considerable expansion of the law. While seemingly not part of DeShaney ’s holding, lower courts seized on those words to create a new remedy that would, it was thought, aid the next "[p]oor Joshua."³ Thus was born the "state-created danger" theory of liability, which we adopted in Kneipp v. Tedder , 95 F.3d 1199, 1205 (3d Cir. 1996).⁴ There, a severely intoxicated husband and wife were walking home from a bar. Id. at 1201. Police officers stopped the couple, separated them, and allowed the man to continue on his way. Id. at 1201–02. The officers later "sent [the woman] home alone," but she never made it; she was "found unconscious at the bottom of an embankment" the next day. Id. at 1202–03. The woman's parents then sued, asserting that the officers had violated their daughter's substantive due process rights. Id. at 1203. But there was no "special relationship" between the state and the decedent falling within DeShaney ’s narrow holding. Id. at 1205.

Charting a new course, we elevated the commentary in DeShaney and discovered that the Court had "left open the possibility that a constitutional violation might ... occur[ ]" when a state "play[s a] part in ... creat[ing]" a danger or when it "render[s a person] more vulnerable to" that danger. Id. at 1205 (quoting DeShaney , 489 U.S. at 201, 109 S.Ct. 998 ). Since the police separated the couple, "then sen[t the woman] home unescorted in a seriously intoxicated state in cold weather," the state, through its actors, "made [her] more vulnerable to harm." Id. at 1209. The danger, we explained, was not the plaintiff's intoxicated journey from tavern to domicile. Id. Rather, it was the "state-created danger" of removing her male companion, who presumably would have sheltered her from peril, that violated the guarantee of due process framed in the Fourteenth Amendment.⁵ Id. at 1211.

2. The State-Created Danger Theory Today

Several other Circuit Courts have also recognized the state-created danger theory of liability.⁶ But the Supreme Court has not.⁷ And the doctrine has not escaped criticism, since it does not stem from the text of the Constitution or any other positive law,⁸ and consequently vests open-ended lawmaking power in the judiciary.⁹ Moreover, the "state-created danger" doctrine offers little help to public employees seeking to better discharge their duties, and does not tell them "what to do, or avoid, in any situation." Weiland v. Loomis , 938 F.3d 917, 919 (7th Cir....