Tamika Johnson v. City of Philadelphia

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 19-2938

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

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-18-cv-4655)
District Judge: Hon. Joel H. Slomsky

Argued May 26, 2020

Before: GREENAWAY, JR., PORTER, and MATEY, Circuit Judges

(Opinion filed: September 22, 2020)

Thomas A. Lynam, III
Leonard G. Villari [ARGUED]
Villari Lentz & Lynam
100 North 20th Street
Suite 302
Philadelphia, PA 19103
Counsel for Appellant
Kelly S. Diffily
Craig R. Gottlieb
Jane L. Istvan [ARGUED]
City of Philadelphia Law Department
17th Floor
1515 Arch Street
Philadelphia, PA 19102
Counsel for Appellees

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.

2
 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

3
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

1
The complaint also contained “special-relationship”
claims against the Operator and the City, and an
equal-protection claim against the City Fire Commissioner.
The District Court dismissed these claims, and Appellant
abandons them on appeal. In its dismissal order, the District
Court granted Appellant leave to amend her equal-protection
claim only. She declined to do so. At oral argument here,

4
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 (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

Appellant confirmed that she does not seek leave to amend any
of her other dismissed claims.
2
The District Court had federal-question jurisdiction
over the constitutional claims under 28 U.S.C. § 1331, and
supplemental jurisdiction over the state-law claims under 28
U.S.C. § 1367(a). We have jurisdiction under 28 U.S.C.
§ 1291. When considering a motion to dismiss under Rule
12(b)(6), a District Court asks “whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to
relief”—i.e., whether the plaintiff has alleged “enough facts to
state a claim to relief that is plausible on its face.” Kedra v.
Schroeter, 876 F.3d 424, 440–41 (3d Cir. 2017) (quoting
Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)
and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). We
exercise plenary review over the District Court’s resolution of
that question. Id. at 434.

5
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 (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. 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. 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. 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

6
prisoners and the “involuntarily committed.” Id. at 198–99. 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. But there
was not that kind of “special relationship” between the county
and the young boy. Id. at 197, 201. 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.

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”

3
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489
U.S. 189, 213 (1989) (Blackmun, J., dissenting). In his oft-
repeated dissenting opinion, Justice Blackmun urged a
“‘sympathetic’ reading” of the Constitution, “one which
comports with dictates of fundamental justice.” Id. As the
majority noted, victims like Joshua do deserve both sympathy
and action, and “[t]he people of Wisconsin may well prefer a
system of liability which would place upon the State and its
officials the responsibility for failure to act in situations such
as the present one.” Id. at 203. But the Constitution does not
permit the courts to “thrust” that remedy upon them by an
“expansion of the Due Process Clause of the Fourteenth
Amendment” outside its ordinary meaning. Id. That is because

7
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). 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.

“the Constitution is a written instrument” and “its meaning
does not alter. That which it meant when adopted, it means
now.” Brown v. Ent. Merch. Ass’n, 564 U.S. 786, 822 (2011)
(Thomas, J., dissenting) (citation and internal quotation marks
omitted). Rather, our Constitution reserves the virtue of
sympathy to the people.
4
Earlier cases “considered the possible viability” of the
theory. Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996)
(collecting cases).

8
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

5
Courts often treat the “state-created danger” doctrine
“as if it were a rule of common law.” Weiland v. Loomis, 938
F.3d 917, 920 (7th Cir. 2019). But it is not, and we must guard
against reasoning that, especially with the best intentions,
deviates from the Constitution’s careful balance of authority
recognized in DeShaney. See Daniels v. Williams, 474 U.S.
327, 332 (1986) (“We have previously rejected reasoning that
would make of the Fourteenth Amendment a font of tort law to
be superimposed upon whatever systems may already be
administered by the States.” (quoting Paul v. Davis, 424 U.S.
693, 701 (1976) (internal quotation marks omitted)).
6
See, e.g., Doe v. Jackson Local Sch. Dist. Bd. of Educ.,
954 F.3d 925, 932 (6th Cir. 2020); Martinez v. City of Clovis,
943 F.3d 1260, 1271 (9th Cir. 2019); Estate of Her v.
Hoeppner, 939 F.3d 872, 876 (7th Cir. 2019); Anderson ex rel.
Anderson v. City of Minneapolis, 934 F.3d 876, 881 (8th Cir.
2019); Matthews v. Bergdorf, 889 F.3d 1136, 1150 (10th Cir.
2018); Okin v. Village of Cornwall-On-Hudson Police Dep’t.,
577 F.3d 415, 428 (2d Cir. 2009). But see Keller v. Fleming,
952 F.3d 216, 227 (5th Cir. 2020) (“[T]he Fifth Circuit has

9
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”

never recognized th[e] ‘state-created-danger’ exception.”);
Turner v. Thomas, 930 F.3d 640, 646 (4th Cir. 2019) (“[W]e
have never issued a published opinion recognizing a successful
state-created danger claim.”); Irish v. Maine, 849 F.3d 521,
526 (1st Cir. 2017) (“While this circuit has discussed the
possible existence of the state-created danger theory, we have
never found it applicable to any specific set of facts.”). One
oddity of this reasoning is that it seems to create liability for
the kind of action DeShaney did not.
7
Nor is it certain to. See Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992) (“As a general matter, the
Court has always been reluctant to expand the concept of
substantive due process[.]”).
8
See Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs.,
597 F.3d 163, 188 (4th Cir. 2010) (Wilkinson, J., concurring)
(“Neither the majority nor the parties point to any instance
where Congress has laid down a rule to govern the conduct in
this case, and it is wrong for a federal court to rush in where
Congress has feared to tread.”)
9
See Johnson, 597 F.3d at 184 (Wilkinson, J.,
concurring) (“Law exists in part to guard against the
overreaching of public authority, and from that general purpose
the life-tenured federal courts are not exempt. When the many
cautionary maxims of restraint are toppled like dominos, the
chances of judicial miscalculation exponentially increase. . . .
Federal courts simply do not have a roving warrant to adopt
whatever policies they believe to be beneficial, all in the name

10
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. 2019).

But we remain bound to faithfully apply our precedent
explaining the scope of the doctrine. As currently formulated,
that requires a plaintiff to plead four elements: first,
foreseeable and fairly direct harm; second, action marked by
“a degree of culpability that shocks the conscience”; third, a
relationship with the state making the plaintiff a foreseeable
victim, rather than a member of the public in general; and
fourth, an affirmative use of state authority in a way that
created a danger, or made others more vulnerable than had the
state not acted at all. See Sauers v. Borough of Nesquehoning,

of substantive due process.”); Doe ex rel. Magee v. Covington
Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 874 (5th Cir. 2012)
(Higginson, J., concurring) (noting the “loose articulation” of
the state-created danger doctrine); cf. Collins, 503 U.S. at 125
(“[G]uideposts for responsible decisionmaking in this
unchartered area [of substantive due process] are scarce and
open-ended. The doctrine of judicial self-restraint requires us
to exercise the utmost care whenever we are asked to break
new ground in this field.”) (citation omitted); see also Kedra v.
Schroeter, 876 F.3d 424, 462 (3d Cir. 2017) (Fisher, J.,
concurring) (“[I]t is troubling how far we have expanded
substantive due process . . . .”); Morrow v. Balaski, 719 F.3d
160, 186 (3d Cir. 2013) (en banc) (Ambro, J., concurring in
part and dissenting in part) (“Federal courts cannot be the
forum for every complaint that a government actor could have
taken an alternate course that would have avoided harm to one
of our citizens.”).

11
905 F.3d 711, 717 (3d Cir. 2018). We apply that precedent to
the facts Appellant pleads here.

3. The Dispatcher Did Not Affirmatively Use Her
Authority

The state-created danger theory requires Appellant to
allege that the Dispatcher “affirmatively used . . . her authority
in a way that created a danger to the [decedents] or that
rendered [them] more vulnerable to a danger than had [the
Dispatcher] not acted at all”—i.e., to allege an affirmative act.
L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 242 (3d Cir. 2016)
(quoting Bright v. Westmoreland, 443 F.3d 276, 281 (3d Cir.
2006)). True, we have noted the “inherent difficulty in drawing
a line between an affirmative act and a failure to act,” and
sometimes frame the inquiry as asking whether a defendant’s
“exercise of authority resulted in a departure from th[e] status
quo.” Id. at 242–43. But we have repeatedly held that an
alleged failure to do something, standing alone, cannot be the
basis for a state-created danger claim. See, e.g., Burella v. City
of Phila., 501 F.3d 134, 146–47 (3d Cir. 2007) (police officers’
failure to intervene in domestic-violence situation did not
satisfy element four).

Here, there are no allegations of affirmative conduct by
the Dispatcher that caused the Johnson Family’s harms.
Rather, Appellant claims only that the Dispatcher failed to
communicate the Johnson Family’s location to the
firefighters. 10 But this is a classic allegation of omission, a

10
(App. at 56 (“[The] Dispatcher violated the
decedents’ substantive due process rights by failing

12
failure to do something—in short, a claim of inaction and not
action. That is not enough under our prior decisions, and so we
will affirm the dismissal of that claim.

4. The Operator’s Alleged Actions Did Not Shock
the Conscience

Appellant alleges that the Operator violated the Johnson
Family’s constitutional rights by “directing them to close
themselves inside the burning building’s 3rd floor rear room,
assuring them that [f]irefighters were coming to their rescue,
but then failing inexplicably to inform the [f]irefighters of
[their] existence, location, or need of rescue.” (App. at 54.) The
District Court held that those allegations do not “shock the
conscience,” as that phrase is defined in our precedent. We
agree.

Start with the standard, recognizing that it offers little
light. See, e.g., Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.
1973) (noting the shock-the-conscience test “is not one that can
be applied by a computer, [but] it at least points the way”),
quoted in Cty. of Sacramento v. Lewis, 523 U.S. 833, 847
(1998). We have explained that “[t]he exact level of culpability
required to shock the conscience . . . depends on the
circumstances of each case, and the threshold for liability
varies with the state actor’s opportunity to deliberate before
taking action.” Kedra v. Schroeter, 876 F.3d 424, 437 (3d Cir.
2017). In “‘hyperpressurized environments requiring a snap
judgment,’ an official must actually intend to cause harm in

inexplicably to inform the Firefighters of decedents’ existence,
location, or need of rescue on the 3rd floor of the burning
building.”).)

13
order to be liable.” Id. (alteration omitted) (quoting Vargas v.
City of Phila., 783 F.3d 962, 973 (3d Cir. 2015)). “In situations
in which the state actor is required to act ‘in a matter of hours
or minutes,’ . . . the state actor [must] ‘disregard a great risk of
serious harm.’” Id. (quoting Sanford v. Stiles, 456 F.3d 298,
310 (3d Cir. 2006) (per curiam)). “And where the actor has
time to make an ‘unhurried judgment[],’ a plaintiff need only
allege facts supporting an inference that the official acted with
a mental state of ‘deliberate indifference.’” Id. (alteration
omitted) (quoting Sanford, 456 F.3d at 309).

The District Court believed that the Operator faced
“emergency circumstances,” so the intent-to-cause-harm
standard applied. (App. at 24.) On appeal, Appellant argues for
a lower standard. But the claim fails even under the deliberate-
indifference test. Consider the Operator’s instructions and
assurances. Sheltering in place rather than risking a perilous
descent through a raging fire mirrors standard practices. As for
the promises of timely help, Appellant notes that the Johnson
Family “forwent attempting to escape the burning building
by . . . another rear window that opened onto a flat, walkable
roof.” (App. at 51.) But she does not allege that the Operator
knew about this means of escape.

The Operator’s failure to communicate the decedents’
location and need of rescue is also insufficient. 11 “[T]he Due

11
Were this failure the sole basis of Appellant’s claim
against the Operator, we would affirm the dismissal of this
claim for the same reason as the claim against the Dispatcher—
i.e., for failure to allege an affirmative act. Appellant, however,
alleges that the Operator violated the decedents’ constitutional

14
Process Clause is simply not implicated by a negligent act of
an official causing unintended loss of or injury to life, liberty,
or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986);
cf. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)
(“[C]laims of negligence or medical malpractice, without some
more culpable state of mind, do not constitute ‘deliberate
indifference.’ . . . We have found ‘deliberate indifference’ . . .
where [a] prison official . . . knows of a prisoner’s need for
medical treatment but intentionally refuses to provide it.”
(emphasis added)). Appellant does not allege that the Operator
intentionally declined to relay the decedents’ location to the
[f]irefighters. Instead, she argues the Operator “fail[ed]
inexplicably to inform the firefighters of the decedents’

rights “by a combination” of the instructions, assurances, and
the failure to communicate. (App. at 54.) Because we hold that
Appellant’s claim against the Operator does not satisfy element
two of the state-created danger theory, we need not determine
whether a combination of affirmative acts and omissions
satisfies element four. Cf. Rivas v. City of Passaic, 365 F.3d
181, 197 (3d Cir. 2004) (where EMTs falsely told police that
man assaulted them, element four satisfied by, for example,
EMTs’ later failure to advise police about the man’s medical
condition and decision to “abandon control over the
situation”). But see Walter v. Pike Cty., 544 F.3d 182, 195–96
(3d Cir. 2008) (under state-created danger theory, a
defendant’s affirmative act does not impose a later duty to act
if the initial act did not shock the conscience); id. at 196
(“[T]hese findings would not amount to a constitutional
violation—they would not establish that the defendants
committed a culpable act, only that they acted in 2001 and
then, months later, shocked the conscience through inaction.”).
And we need not address elements one and three.

15
existence, location, or need of rescue.” (App. at 54 (emphasis
added).) But the only reasonable inference is that the Operator
neglected to relay that information through error, omission, or
oversight. Nothing in the complaint or, indeed, ordinary
experience supports the inference that the Operator
deliberately chose to discard her concern for the Johnson
Family’s lives. For that reason, Appellant’s claim against the
Operator does not satisfy element two of the state-created
danger theory. 12 So we will affirm the dismissal of that claim.

B. Monell Claim

What of the City of Philadelphia’s role in this tragedy?
Appellant argues that the alleged calamity of errors that
followed Alita Johnson’s desperate call traces to the City’s
failure to provide “guidelines, policies, or training to its [fire
department] operator[s] or dispatcher[s] regarding the
communication of vital information to the caller requiring
emergency assistance, or to the [f]irefighters responding to the

12
Appellant did not allege that the Dispatcher
intentionally declined to relay the decedents’ location to the
firefighters, either. (See App. at 56 (alleging that the
Dispatcher “fail[ed] inexplicably to inform the [f]irefighters of
the decedents’ existence, location, or need of rescue”).) When
dismissing the claim against the Dispatcher, the District Court
also concluded that, as alleged, the Dispatcher’s behavior did
not shock the conscience. For the reasons discussed above, that
conclusion was sound, and is another basis for dismissing the
claim against the Dispatcher. We decline to determine whether
this claim satisfies elements one and three of the state-created
danger theory.

16
scene.” (App. at 59.) That failure, Appellant argues, violates
the Johnson Family’s constitutional rights.

We begin by noting what is not argued: that
Philadelphia is always responsible for the conduct of its
employees. Rather, as is well established, a municipality is not
liable for the unconstitutional acts of its employees just
because of their employment, under a respondeat superior
theory. Monell, 436 U.S. at 691. But it may be liable if a
plaintiff “demonstrate[s] that the violation of rights was caused
by the municipality’s policy or custom.” Thomas v.
Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014). If the
alleged policy or custom at issue is a failure to train or
supervise (as it is here), the plaintiff must show that this failure
“amounts to ‘deliberate indifference’ to the rights of persons
with whom [the municipality’s] employees will come into
contact.” Id. (quoting Carter v. City of Phila., 181 F.3d 339,
357 (3d Cir. 1999)). “Ordinarily,” this requires a plaintiff to
identify a “‘pattern of similar constitutional violations by
untrained employees’” that “puts municipal decisionmakers on
notice that a new program is necessary . . . .” Id. at 223 (quoting
Connick v. Thompson, 563 U.S. 51, 62 (2011)). Otherwise, the
plaintiff needs to show that failure to provide the identified
training would “likely . . . result in the violation of
constitutional rights”—i.e., to show that “the need for more or
different training [was] so obvious.” City of Canton v. Harris,
489 U.S. 378, 390 (1989).

Appellant does not allege a history of similar problems
at the fire department. Nor is it obvious that fire department
personnel would intentionally withhold important information
from the firefighters. Accidents occur, of course. But the
Monell inquiry asks whether a municipality was deliberately

17
indifferent to the risk of a constitutional violation. See Thomas,
749 F.3d at 222 (“[L]iability under section 1983 requires a
showing that the failure [to train] amounts to ‘deliberate
indifference’ to the rights of persons with whom [the
municipality’s] employees will come into contact.” (emphasis
added) (quoting Carter, 181 F.3d at 357)). And as already
noted, negligent behavior does not violate the Constitution
under the state-created danger theory. That is why we see no
error in the District Court’s conclusion that Appellant has not
plausibly alleged that the City was deliberately indifferent to
anyone’s substantive due process rights. We will therefore
affirm the dismissal of her Monell claim.13

13
The District Court believed that Appellant’s inability
to state a claim against an individual City employee meant that
she could not state a Monell claim against the City. In Fagan
v. City of Vineland, we held that “an underlying constitutional
tort can still exist even if no individual [employee] violated the
Constitution.” 22 F.3d 1283, 1292 (3d Cir. 1994). But we later
“carefully confined Fagan to its facts: a substantive due
process claim resulting from a police pursuit.” Grazier ex rel.
White v. City of Phila., 328 F.3d 120, 124 n.5 (3d Cir. 2003);
see also Vargas v. City of Phila., 783 F.3d 962, 974–75 (3d
Cir. 2015) (“Because the officers did not violate any of her
constitutional rights, . . . there was no violation for which the
City of Philadelphia could be held responsible.”); City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)
(holding that Monell does not “authorize[] the award of
damages against a municipal corporation based on the actions
of one of its officers when in fact the jury has concluded that
the officer inflicted no constitutional harm”). At least two of
our post-Grazier opinions have continued to assert that a

18
C. Negligence Claims

Finally, Appellant alleges that the City simply ignored
the history of problems at the Johnson Family’s residence, by
failing to fix the building’s fire hazards and failing to stop the
building owners’ practices. The District Court held that the
City was immune from these negligence claims because it had
insufficient control over the building. Under the relevant
Commonwealth law, we agree.

In Pennsylvania, municipalities are “generally . . .
immune from tort liability.” Brewington ex rel. Brewington v.
City of Phila., 199 A.3d 348, 350 (Pa. 2018); see 42 Pa. Cons.
Stat. § 8541. But immunity does not extend to injuries caused
by negligence in “[t]he care, custody or control of real property
in the [municipality’s] possession[.]” 42 Pa. Cons. Stat.
§ 8542(b)(3). This real-property exception is “narrowly
construed,” Brewington, 199 A.3d at 356, with liability arising
only when the agency has “total control over the premises,”
Sweeney v. Merrymead Farm, Inc., 799 A.2d 972, 977 (Pa.

municipality may be “independently liable for a substantive
due process violation” even if no municipal employee is liable.
See Sanford v. Stiles, 456 F.3d 298, 314 (3d Cir. 2006) (per
curiam); Brown v. Pa. Dep’t of Health Emergency Med. Servs.
Training Inst., 318 F.3d 473, 482 (3d Cir. 2003). But both
opinions note that, for Monell liability to attach, “there must
still be a violation of the plaintiff’s constitutional rights.”
Sanford, 456 F.3d at 314; Brown, 318 F.3d at 482. As
Appellant’s Monell claim fails in any event, we need not wade
into this discussion. See Brown, 318 F.3d at 475 n.1 (“We may
affirm the District Court on any basis which has support in the
record.”).

19
Commw. Ct. 2002); see id. (“[L]imited control or mere
occupation for a limited period of time is insufficient to impose
liability.”).

Appellant argues that the City, by exercising its
regulatory power, “essentially divested the building owners of
their legal possession of the property and assumed
responsibility for its legal control and occupancy.” (Reply Br.
at 20 (emphasis omitted).) But she pleads no facts supporting
this theory. She does not allege, for example, that the City
physically occupied the building or let others do so. Her
complaint, in fact, suggests the opposite. (See App. at 65
(alleging that the City “failed to prevent” the owners from
re-occupying the building (emphasis added)).)

Because Appellant has not plausibly alleged that the
City had “total control” over the decedents’ building, she
cannot rely on the real-property exception to overcome the
City’s immunity. We will therefore affirm the dismissal of her
negligence claims.

III. CONCLUSION

The deaths of Alita Johnson, Haashim Johnson, and
Horace McCouellem should give all pause. Three lives were
lost inside a building long-known to flout safety requirements,
amid a bungled rescue effort. One hopes their deaths focus the
will and resolve of those able to act. But the City and its
employees may be held liable under the state-created danger
theory, and under Pennsylvania tort law, only in narrowly
defined circumstances. Because those circumstances are not
met here, we will affirm the District Court’s dismissal of
Appellant’s complaint.

20
 Tamika Johnson v. City of Philadelphia, et al., No. 19-2938

MATEY, Circuit Judge, concurring.
I write separately to join Judge Porter’s view that our
full Court should revisit the state-created danger doctrine. As
our majority opinion states, the doctrine does not “stem from
the text of the Constitution or any other positive law.” Maj. Op.
II.A.2. The doctrine “offers little help to public employees
seeking to better discharge their duties,” id., but subjects them
to lawsuits for alleged constitutional violations. As Judge
Porter notes, the doctrine exemplifies a “troubling” expansion
of substantive due process. Kedra v. Schroeter, 876 F.3d 424,
462 (3d Cir. 2017) (Fisher, J., concurring). Many state-created
danger cases are tragic and unsettling and this matter is no
exception. But the Due Process Clause of the Fourteenth
Amendment “does not transform every tort committed by a
state actor into a constitutional violation.” DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 202
(1989). Because “[t]he place to make new legislation . . . lies
in Congress,” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1753
(2020), I join Judge Porter’s call for our full Court to revisit the
state-created danger doctrine.

1
PORTER, Circuit Judge, concurring.

I join the majority’s opinion in full. But I write
separately to explain my view that our full Court should revisit
the state-created danger doctrine.

First, “it is troubling how far we have expanded
substantive due process” in this area. Kedra v. Schroeter, 876
F.3d 424, 462 (3d Cir. 2017) (Fisher, J., concurring). As Judge
Fisher noted in his concurrence in Kedra, we have gone much
further than the Supreme Court by “fashioning” our own state-
created danger doctrine and further still by “stating that there
could be liability in non-custodial situations for gross
negligence.” Id. (citations omitted). As the majority opinion
observes, the state-created danger doctrine “has not escaped
criticism, since it does not stem from the text of the
Constitution or any other positive law.” Maj. Op. at 11. I agree
that, “[g]iven that our substantive due process doctrine has
gradually lowered the bar for bringing a [state-created danger]
claim, it may be time for this full Court to reexamine the
doctrine.” Kedra, 876 F.3d at 462 (Fisher, J., concurring).

Assuming the continuing viability of the state-created
danger doctrine in our Circuit, the full Court should
nevertheless revisit our test for analyzing whether a state
actor’s behavior “shocks the conscience.” In Kedra, Judge
Krause skillfully synthesized our precedent into a three-part
framework. First, “[i]n hyperpressurized environments
requiring a snap judgment, an official must actually intend to
cause harm in order to be liable.” Id. (quoting Vargas v. City
of Phila., 783 F.3d 962, 973 (3d Cir. 2015)) (internal quotation
marks omitted).

Second, “[i]n situations in which the state actor is
required to act in a matter of hours or minutes, we require that
the state actor disregard a great risk of serious harm.” Id.
(emphasis added) (quoting Sanford v. Stiles, 456 F.3d 298, 310
(3d Cir. 2006) (per curiam)) (internal quotation marks
omitted). And third, when “the [state] actor has time to make
an unhurried judgment, a plaintiff need only allege facts
supporting an inference that the official acted with a mental
state of deliberate indifference.” Id. (quoting Sanford, 456 F.3d
at 309) (internal quotation marks omitted). We have described
“deliberate indifference” as a “conscious disregard of a
substantial risk of serious harm,” id. (emphasis added)
(quoting Vargas, 783 F.3d at 973–74) (internal quotation
marks omitted), and also as “a willingness to ignore a
foreseeable danger or risk.” Id. (emphasis added) (quoting
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 910 (3d Cir.
1997)) (internal quotation marks omitted).

Our precedent asks district courts to differentiate among
the three tiers of culpability and apply them to a set of facts. 1
That is no simple task. But it is further complicated by the
mystifying differences we have drawn between the second and
third tiers of culpability. In my view, there is no practical
difference between a “disregard of a great risk of serious harm”
(the second tier) and a “conscious disregard of a substantial
risk of serious harm” (the third tier). Compare Great, The
Concise Oxford Dictionary
https://www.oed.com/view/Entry/81104 (last visited
September 1, 2020) (“Of considerable importance,
significance, or distinction; important, weighty; distinguished,
prominent; famous, renowned; impressive.”), with Substantial,
The Concise Oxford Dictionary
https://www.oed.com/view/Entry/193050 (last visited
September 1, 2020) (“[O]f real significance, weighty; reliable;
important, worthwhile.”). But a “great” or “substantial” risk is
obviously weightier than a merely “foreseeable” risk—
regardless of whether that “foreseeable” risk is willfully
ignored. Our explication of the second and third tiers is
inconsistent and nearly incoherent. That is not surprising,
however, because “guideposts for responsible decisionmaking
in this unchartered area are scarce and open-ended.” Collins v.
City of Harker Heights, 503 U.S. 115, 125 (1992).

Assuming we continue to recognize the state-created
danger doctrine at all, I suggest combining the second and third
tiers into one and making the inquiry more straightforward: For

1
When discerning whether deliberately indifferent conduct
shocks the conscience, the Supreme Court has said that the
question is fact dependent because “deliberate indifference that
shocks in one environment may not be so patently egregious in
another.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 850
(1998).
2
a state actor to be liable in a “hyperpressurized environment
requiring a snap judgment,” he must actually intend to cause
harm. But in any other context, the state actor must act with
deliberate indifference that shocks the conscience. This
articulation of the standard hews more closely to Supreme
Court precedent, 2 is more consistent with the tests established
by our sister circuits that have adopted the state-created danger
doctrine, 3 and does not ask state actors like the operator and
dispatcher in this case to ponder the gradations among a
“substantial risk,” a “great risk,” and a “foreseeable danger”
before reacting to an urgent 911 call.

I respectfully offer these brief observations about our
state-created danger doctrine and hope that in an appropriate
case we will revisit the doctrine as a full Court.

2
See Lewis, 523 U.S. at 836, 847 n.8 (holding that liability
will attach when a state actor’s conduct is “so egregious, so
outrageous, that it may fairly be said to shock the
contemporary conscience”).
3
See, e.g., Doe v. Jackson Local Sch. Dist. Bd. of Educ., 954
F.3d 925, 932–33 (6th Cir. 2020); Estate of Her v. Hoeppner,
939 F.3d 872, 876 (7th Cir. 2019); Okin v. Vill. of Cornwall-
on-Hudson Police Dep’t., 577 F.3d 415, 431–32 (2d Cir.
2009).
3