United States District Court for the District of Columbia
January 11, 2005.
ESTATE OF ANTHONY PHILLIPS, et al. Plaintiffs,
DISTRICT OF COLUMBIA, et al. Defendants.
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
On May 30, 1999, a fire claimed the lives of two firefighters
and seriously injured three others. Plaintiffs in the instant
case, two of the injured firefighters and the estates of the two
firefighters who perished in the fire, bring suit against the
District of Columbia, the former Fire Chief and Deputy Fire Chief
of the fire department for alleged constitutional violations and
intentional torts giving rise to injuries and loss of life. On
March 31, 2003, the Court denied the defendants' motion to
dismiss plaintiffs' claims brought pursuant to 42 U.S.C. § 1983
against individual defendants and the District of Columbia and
plaintiffs' claims of intentional torts against individual
defendants in their personal capacities.*fn1
The defendants thereafter filed interlocutory appeals in the
United States Court of Appeals for the District of Columbia
Circuit, challenging this Court's March 31 Order denying their
motion to dismiss on the issue of qualified immunity. Following
the defendants' notice of appeal but before the Circuit Court had
resolved the defendants' motions, that court issued two opinions
in cases unrelated to this case but bearing on the issue of
qualified immunity for government officials. Those cases are
International Action Center v. U.S., 365 F.3d 20 (D.C. Cir.),
decided April 16, 2004, and Fraternal Order of Police Dep't of
Corr. Labor Comm. v. Williams, 375 F.3d 1141 (D.C. Cir.),
decided July 20, 2004.
On April 16, 2004 and July 22, 2004, this Court, sua sponte,
ordered the parties to address the impact, if any, of the Int'l
Action and FOP decisions, respectively, on the instant case.
Both parties filed responses to Int'l Action and FOP pursuant
to those orders. Plaintiffs maintain that this Court's March 31,
2003 Order denying defendants' motion to dismiss their claims
against the individual defendants accords with the Int'l Action and FOP decisions. Defendants, on the other hand, argue that
the Court of Appeals' decisions are supervening events requiring
reconsideration of this Court's earlier decision and contend that
the plaintiffs' claims against the individual defendants must be
dismissed in light of those holdings. Based on these arguments,
this Court will construe the responses filed by the defendants as
a motion to reconsider and vacate its March 31, 2003 Order
denying defendants' motion to dismiss plaintiffs' claims against
the individual defendants and the collateral claims against the
District of Columbia.
On July 29, 2004, the Circuit Court ordered that the
interlocutory appeal in this case be held in abeyance pending
this Court's reconsideration of its qualified immunity decision.
See Phillips v. District of Columbia, et al., No. 03-7060 (D.C.
Cir. July 29, 2004).
Having reconsidered its previous Opinion and Order in light of
the Court of Appeal's decisions in International Action Center
and Fraternal Order of Police, the parties' Court-ordered
pleadings in response to those decisions, as well as the entire
record in this case, the Court sees no reason to modify its
original Order of March 31, 2003, denying defendants' motion to
dismiss the § 1983 and intentional tort claims against them on the grounds that they are immune.*fn2 Thus, defendants'
motion to vacate this Court's Order of March 31, 2003 is
The following is a recapitulation of the facts and the
plaintiffs' claims, based on the Court's previous Memorandum
A. The Cherry Road Fire
On May 30, 1999, a fire broke out in a townhouse at 3146 Cherry
Road, N.E., Washington, D.C. The fire took the lives of District
of Columbia Fire Department ("DCFD") firefighters Anthony Sean
Phillips, Sr. and Louis J. Matthews. Firefighter Joseph Morgan
suffered severe burns, and DCFD Lieutenant Charles Redding was
also burned in the fire.
Firefighter Phillips was assigned to DCFD Engine Co. 10, and
Matthews and Morgan were assigned to DCFD Engine Co. 26. Redding
was an officer assigned to Engine Co. 26. The firefighters were
responding to a multi-alarm fire on Cherry Road.
Firefighter Phillips entered the first floor of the residence with his officer, Lieutenant Cooper, as did Matthews,
Morgan and Redding. After entering the building, Cooper was
separated from Phillips. Cooper exited the building and
subsequently learned that Phillips had not. When Redding entered
the townhouse, he had been informed that the fire was on the
first floor of the house. As the firefighters were inside the
house, a truck arrived on the scene and began ventilating the
front of the townhouse. A second truck then arrived and prepared
to ventilate the basement.
While the firefighters were inside the house, the Incident
Commander ("IC") twice radioed Redding to locate his position.
However, Redding did not receive this transmission. The IC had
not established a fixed command post and was relying on a weaker
portable radio device rather than the stronger radio mobile. The
firefighters inside the house were unaware of each other's
presence. Communications were impaired and visibility was poor.
Redding did not even have a hand light with which to illuminate
the inside of the townhouse.
The improper and untimely ventilation of the house resulted in
a sudden increase in temperature. Redding ran from the townhouse,
with his face and back burning. He relayed to the IC that
Matthews was still in the townhouse. Redding was unaware that
Morgan and Phillips were also in the townhouse at that time. The
IC did not order a rescue effort until approximately 90 seconds later, when firefighter Morgan exited the house
critically injured. Firefighter Phillips was found unconscious
and severely burned, and was removed from the townhouse
approximately seven minutes after the rescue effort began.
Matthews was found unconscious and severely burned approximately
eleven minutes after the rescue effort began. Phillips died of
his injuries approximately 23 minutes after his removal from the
townhouse, while Matthews died of his injuries on the following
National Institute for Occupational Health and Safety ("NIOSH")
investigators concluded that the DCFD did not follow standard
operating procedures ("SOPs"). Specifically, the investigators
found that there was a failure to properly ventilate the building
and to coordinate personnel activities; that there was a failure
to utilize the communication system effectively; and that there
was a continuing failure surrounding the maintenance of
self-contained breathing apparatuses as well as the need to
provide all firefighters with automated personal alert safety
The District of Columbia's Reconstruction Report mirrored the
findings of NIOSH and restated criticisms articulated in a report
published two years earlier. The earlier report focused on the
1997 death of firefighter John Carter in a fire at a grocery
store. The Cherry Road report recognized that deficiencies in training, staffing, equipment and administration,
noted in the Carter report, persisted and stated that "[f]urther
inaction on these recommendations cannot be tolerated." The
report concluded that "[t]he events that took place demonstrate
the serious consequences that result from failure to train,
equip, and staff appropriately."
Plaintiffs point to a number of deficiencies in the defendants'
implementation of standard operating procedures, which they
allege resulted in the death and injuries of the firefighters at
Cherry Road. Phillips' complaint, for example, alleges:
"(a) the failure to follow appropriate equipment
backup procedures (Engine No. 12, as fourth-due
engine company, proceeded to the front of the
structure and took position. By so doing, Engine No.
12 did not backup Engine No. 17, the second-due
engine company, in the rear of the structure);
"(b) the failure by an Officer-in-Charge (Defendant
Cooper) to maintain required contact with a member of
his crew, Firefighter Phillips, on the fireground;
"(c) the failure by Defendant Cooper to immediately
account for, report the fact of, and locate a missing
firefighter (Firefighter Phillips);
"(d) the failure by the D.C. Fire Department to have
sufficient personnel on the scene to perform
"(e) the failure to provide a size-up of the rear
conditions (a size-up of rear conditions was never
reported by Engine No. 17, the first arriving unit in
the rear); and
"(f) the failure to have an available backup unit in
service to replace Truck No. 13 which delayed
ventilation procedures." Phillips Compl. at ¶ 27.
Plaintiffs claim that "[s]uch policy and custom not to
implement recommendations to improve operation of the DCFD and
enforce SOP's was the product of a conscious and deliberate
decision and not simple or negligent oversight made under
emergency, spur of the moment conditions without either the
opportunity or time for deliberation." Pls.' Opp'n at 8.
B. Plaintiffs' Claims
Four cases have been consolidated for all purposes:
Lysa Lambert Phillips v. District of Columbia, Civ.
Action No. 00-1113
Cassandra Brown Shields v. District of Columbia,
Civ. Action No. 00-1157
Joseph Morgan v. District of Columbia, Civ. Action
Charles Redding v. District of Columbia, Civ.
Action No. 00-1225
1. Plaintiffs' Constitutional Claims
Plaintiffs' constitutional claims were originally asserted
against the District of Columbia as well as against defendants
Donald Edwards, Frederick C. Cooper, Jr., Thomas Tippett and
Damian A. Wilk in their personal capacities.*fn3 All
plaintiffs allege constitutional violations pursuant to 42 U.S.C. § 1983.
2. Plaintiffs' Non-constitutional Claims for Intentional
All plaintiffs assert non-constitutional claims for
"intentional tortious conduct" pursuant to local and common law
and seek compensatory damages. All plaintiffs bring such claims
against the District and against Edwards in his personal
capacity. In addition, Redding brings tort claims against
defendant Tippett in his personal and capacity.
3. Procedural history
Plaintiffs Phillips, Shields and Morgan filed an amended
complaint on February 25, 2002. Plaintiff Redding filed an
amended complaint on February 26, 2002. On March 15, 2002,
defendants District of Columbia, Edwards and Cooper filed a
motion to dismiss plaintiffs' complaint. Defendant Wilk filed a
motion to dismiss Redding's complaint on March 25, 2002.
Defendant District of Columbia filed a motion to dismiss
Redding's complaint on April 1, 2003. As the motions to dismiss raised common issues, the Court
addressed them jointly as a single motion to dismiss and on March
31, 2003, the Court issued an Opinion and Order resolving the
motion. The defendants' motion to dismiss the plaintiffs' § 1983
claims asserted on behalf of the deceased and injured
firefighters against the District and individual defendants was
denied because this Court found that the plaintiffs had
adequately alleged that the District and its employees created a
conscience-shocking danger that caused the firefighters' injuries
and death and that defendants were deliberately indifferent to
the high probability of such tragedy.
Defendant's motion to dismiss plaintiffs' intentional tort
claims for compensatory and punitive damages against the
individual defendants, sued in their personal capacities, was
A. Standard of Review for Motion to Dismiss
The Court will not grant a motion to dismiss for failure to
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6) "unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46,
78 S. Ct. 99 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271,
1276 (D.C. Cir. 1994). Accordingly, when ruling on a motion to
dismiss, the Court accepts as true all of the complaint's factual
allegations. See Does v. United States Dep't of Justice,
753 F.2d 1092, 1102 (D.C. Cir. 1985). Plaintiff is entitled to "the
benefit of all inferences that can be derived from the facts
alleged." Kowal, 16 F.3d at 1276
B. Analysis of the Plaintiffs' Constitutional Claims Against
Individual Defendants in Light of the Recent Court of Appeals
Decisions on Qualified Immunity for Government Officials
As previously stated, plaintiffs seek to hold defendant
Edwards, the former District of Columbia Fire Chief, and
defendant Tippett, the Deputy Fire Chief at the time of the
Cherry Road Fire, liable in their personal capacities for
violations of plaintiffs' constitutional rights. In its March 31,
2003 Memorandum Opinion, this Court stated
According to plaintiffs, whose statements the Court
must accept as true for purposes of the present
motion, the named defendants "either committed, or by
virtue of the policy of the D.C. Fire Department
allowed, or established an operational environment
that enabled, numerous violations of the mandatory
Standard Operating Procedures to occur at the Cherry
Road Fire . . ." Pls.' Compl. ¶ 27. Edwards,
specifically, was "responsible for training,
instruction, supervision, discipline, control, and
conduct of firefighters, including the compliance
with all policies, customs, instructions, and
Standard Operating Procedures." Compl. ¶ 26. In light
of the supervisory and decisionmaking capacities of
the named individuals, and the ongoing failure to
institute corrective training or to follow the DCFD's
own rules even after the scathing reviews contained
in a number of safety reports, the Court cannot at
this juncture find that plaintiffs "can prove no set of facts" that would support their
claims for relief. Conley, 355 U.S. at 45-46.
Because the Court must accept all of plaintiffs'
allegations as true, and because plaintiffs are
entitled to all reasonable inferences, the Court
cannot presently dismiss the plaintiffs' § 1983
claims against individual defendants.
See Phillips v. District of Columbia, 257 F. Supp. 2d 69, 80
Defendants now contend that two cases decided subsequent to
this Court's decision denying defendants' motion to dismiss the
claims against the individual defendants in their personal
capacities necessitate a reversal of this conclusion.
1. Int'l Action Center v. United States
A. The Court of Appeals Decision
The U.S. Court of Appeals for the District of Columbia Circuit
decided Int'l Action on April 16, 2004. The case was brought by
organizations and individuals challenging law enforcement
activities during the 2001 Inaugural Parade. 365 F.3d at 22.
Among other defendants, the plaintiffs sued the District of
Columbia Metropolitan Police Department (MPD) and six individual
MPD officers. Id. The plaintiffs claimed that while lawfully
and peacefully participating in activities along the parade
route, two officers struck them and sprayed a chemical agent into
their eyes and faces, without provocation or justification. Id.
at 22. The plaintiffs brought a claim pursuant to
42 U.S.C. § 1983 against the supervisors in their personal capacities, seeking money damages for the injuries
allegedly inflicted by the officers, on the grounds that the
supervisors failed to properly train and supervise their
subordinates, therefore making it likely that tortious conduct
would result. Id. at 21-22. One of plaintiffs' theories for the
supervisors' liability was "deliberate indifference, or . . .
nonfeasance." Id. at 22.
The district court denied the supervisors' qualified immunity
defense, holding that plaintiffs' complaint "sufficiently alleged
that `it was `highly likely' given the circumstances at the Navy
Memorial . . . that MPD officers would violate citizens'
constitutional rights,' triggering an obligation on the
supervisors to take steps to prevent those violations." Id. at
22-23 (quoting district court's opinion at 9 (quoting
Haynesworth v. Miller, 820 F.2d 1245, 1261 (D.C. Cir. 1987)).
The decision was reversed on appeal.
In its analysis, the Circuit Court noted that for an official
to be personally liable, "that official must have violated a
constitutional right, and that right must have been `clearly
established' `the contours of the right must be sufficiently
clear that a reasonable official would understand what he is
doing violates that right.'" Id. at 24 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987).
The Circuit Court found that the district court's decision to deny the supervisors' qualified immunity because it was
"highly likely" based on the circumstances at the Navy Memorial
that the MPD officers would violate citizens' constitutional
rights was too general to support the plaintiffs' theory of
liability. "The district court's analysis failed to link the
likelihood of particular constitutional violations to any past
transgressions, and failed to link these particular supervisors
to those past practices or any familiarity with them." Id. at
27. The court went on to note
This court in Haynesworth stated that some courts
`have also concluded that a duty to supervise may
arise, even absent a pattern of past transgressions.'
. . . In such a case, however, the duty could only
exist `where training has been so clearly deficient
that some deprivation of rights will inevitably
result absent additional instruction. Plaintiffs here
made no allegations that the individual appellants
bore any responsibility for the general training of
[the officers] at all, or were in any sense on notice
that such training had been so deficient that
constitutional violations would `inevitably result.'
Id. at 27 (citations omitted). Moreover, the court continued,
"[a] supervisor who merely fails to detect and prevent a
subordinate's misconduct, therefore, cannot be liable for that
misconduct. `The supervisor must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye for
fear of what they might see.' Id. at 28 (quoting Jones v. City
of Chicago, 856 F.2d 985
, 992 (7th Cir. 1988) (Posner, J.)).
Finally, the Circuit Court held that "absent an allegation that
the MPD supervisors had actual or constructive knowledge of past transgressions or that the supervisors were responsible for
or aware of `clearly deficient' training, the supervisors did not
violate any constitutional right through inaction or failure to
supervise." Id. at 13.
B. Application of Int'l Action to the instant case
Not surprisingly, the plaintiffs contend the Int'l Action
case does not change the outcome of this Court's March 31, 2003
decision denying the individual defendants qualified
Also not surprisingly, defendants contend that Int'l Action
requires reconsideration of this Court's prior decision.
Defendants maintain plaintiffs' complaint cannot meet the
requirements of the Int'l Action opinion for any of the
individual defendants, noting that Defendant Edwards was not at
the scene of the fire and there is no evidence that he
affirmatively participated or engaged in misconduct giving rise
to constitutional violations by his subordinates. Moreover,
defendants argue that because the claims against the individual
defendants cannot be maintained under Int'l Action, the Section
1983 claims against the District of Columbia which are
derivative from the actions of its officials should be dismissed as well.
After careful consideration, this Court concludes that the
decision in the Int'l Action case does not warrant dismissal of
the claims against the individual defendants in the present case
based on the defendants' claims of immunity. It is clear from the
opinion in Int'l Action that the generality of the claims in
that case did not meet the requisite test. Unlike the plaintiffs
in Int'l Action, however, plaintiffs in this case are not
alleging that the Fire Chief and Deputy Chief had a general
responsibility to detect and prevent constitutional violations.
Rather, plaintiffs allege that two previous reports put the Fire
Department and the Fire Chief and Deputy Chief on notice of
specific circumstances and problems that, if not addressed,
were almost certain to result in injury or death. Moreover, at
least one report had focused on a fire two years prior to the one
at issue here that resulted in the death of a firefighter and
specifically focused on training and failure to follow
procedures. Therefore, accepting all of plaintiff's factual
allegations as true, the Phillips plaintiffs may be able to
"link the likelihood of particular constitutional violations to . . .
past transgressions, and . . . to link these particular
supervisors to those past practices or any familiarity with
them." Int'l Action, 365 F.3d at 27. Thus, plaintiffs' claims
against the individual defendants survive the defendants' motion
to dismiss and the defendants' motion to vacate is denied.
2. Fraternal Order of Police v. Williams
B. The Court of Appeals Decision
On July 20, 2004, the Court of Appeals for the District of
Columbia Circuit decided Fraternal Order of Police Department of
Corrections Labor Committee v. Williams, 375 F.3d 1141 (D.C.
Cir. 2004), in which the police union brought a § 1983 suit
against the District of Columbia, the District's Mayor and the
Director of the Department of Corrections ("DOC" or "Director").
The union claimed that the Mayor and the DOC acted with
deliberate indifference to the safety of correctional officers
when they laid off hundreds of officers and simultaneously
increased the number of inmates housed at the D.C. jail. Id. at
1142. The union based its claim on the "state endangerment
concept" recognized in Butera v. District of Columbia,
235 F.3d 637, 651 (D.C. Cir. 2001). FOP, 375 F.3d at 1142. The district
court dismissed the claims against the individual defendants and
the Circuit affirmed, concluding
The challenged acts of the Mayor and the DOC Director
implementing RIFs and relocating prisoners to
another detention facility in response to
congressional appropriations and mandates in no way
approach the `cognizable level of executive abuse of
power as that which shocks the conscience.' [County
of Sacramento v.] Lewis, 523 U.S.  at 846,
118 S.Ct.  at 1716 [(1998)]. The
conscience-shock inquiry is a `threshold question'
`in a due process challenge to executive action.'
Id. at 847 n. 8, 118 S.Ct. 1716 n. 8; see id. at 846, 118 S.Ct. at 1716 (`Only the most egregious
official conduct can be said to be `arbitrary in the
constitutional sense.' (quoting Collins [v. City of
Harker Heights], 503 U.S.  at 129, 112 S.Ct.
 at 1070 (1992))). It is a `stringent
requirement' that `exists to differentiate
substantive due process . . . from local tort law,
Butera, 235 F.3d at 651; see Uhlrig v. Harder,
64 F.3d 567, 572 (10th Cir. 1995) . . . and recognizes
the `presumption that the administration of
government programs' and `decisions concerning the
allocation of resources' are `based on a rational
decisionmaking process that takes account of
competing social, political, and economic forces.'
Collins, 503 U.S. at 128, 112 S.Ct. at 1069. It is
`conduct intended to injure in some way unjustifiable
by any government interest' and not such
large-scale personnel and program decisions as
relocation of inmates and reallocation of
correctional officers resulting therefrom, made by
officials at the highest level of the District
government in response to congressional directives
and appropriations that `is the sort of official
action most likely to rise to the conscience-shocking
level.' Lewis, 523 U.S. at 849, 118 S.Ct. at 1718
(citing Daniels v. Williams, 474 U.S. 327, 331,
106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986)).
Id. at 1145.
On appeal, the union argued that its complaint against the
individual defendants met the conscience-shocking test based on
its allegations "that the mayor and the DOC Director `had the
luxury to make unhurried judgments concerning the ratio of
[c]orrectional officers staffing to inmate population' and
instead acted with `deliberate indifference' to the safety and
security of the correctional officers." Id. The Circuit Court,
however, observed that the "lower threshold" of the
conscienceshocking test deliberate indifference rather than
intentional conduct applies only in "`circumstances where the
State has a heightened obligation toward the individual.'" Id. at 1145-46
(quoting Butera, 235 F.3d at 651 and citing Lewis,
523 U.S. at 850, 118 S.Ct. at 1718 and Daniels, 474 U.S. at 331,
106 S.Ct. at 664). For example, the court continued, taking a person
into custody is such a special circumstance where an official's
deliberate indifference might be truly shocking. The court
distinguished that circumstance (a person in custody) from one
the Circuit "previously rejected[,] a prison guard's substantive
due process claim based on the alleged danger resulting from
overcrowding and a shortage of guards." Id. at 1146 (citing
Washington v. District of Columbia, 802 F.2d 1478 (D.C. Cir.
The Circuit Court's opinion in FOP contrasts the situation
where the state takes a person into custody and then shows
deliberate indifference to that person's safety with the
situation where a state employs a person in an
inherently-dangerous occupation, noting that the latter is
voluntary. Id. at 1146. The opinion discusses this distinction
at length, and notes that in Collins v. City of Harker Heights,
503 U.S. 115, 128-29 (1992), the Supreme Court rejected a widow's
claim that the Due Process Clause required a city to "`provide
its employees with certain minimal levels of safety and security'
`when it made, and [the worker] voluntarily accepted, an offer of
employment.'" FOP at 1147 (citing Collins,
503 U.S. at 127-28, 112 S.Ct. at 1069-70).
Plaintiffs in the instant case contend the FOP decision is
consistent with this Court's ruling of March 31, 2003. Plaintiffs
point to a number of differences between their case and the FOP
case. First, in the FOP case there were external requirements
imposed by Congress that impacted the governmental decisions to
cut personnel and add inmates, whereas in Phillips those
external factors are not at issue. Second, in FOP there were no
injured litigants, whereas here there were deaths and injuries to
plaintiffs. Third, the FOP decision addressed voluntary
employment and known endangerment, whereas the Phillips
plaintiffs assert the firefighters did not know of the specific
dangerous deficiencies in fire department operations and training
that led to their injuries. Also, plaintiffs contend, under D.C.
law the firefighters were not free to resign their positions
without permission from the Mayor and one month's notice.
Plaintiffs submit that their Fifth Amendment rights to life and
personal security or protection from egregious executive action
were violated when the Fire Department failed to enact procedures
and provide training necessary to make the firefighters' duties
as safe as possible in light of the inherent hazards, despite
numerous warnings and reports that a failure to do so could
result in injury or death. Plaintiffs argue that ignoring these
warnings amounted to a policy of deliberate indifference to firefighter safety. Finally, plaintiffs maintain
the FOP case involved external pressures (from Congress) and a
balancing of demands for resources and argue that by contrast no
government interest can or has been identified in Phillips that
would justify a custom and policy of deliberate indifference to
Defendants read the FOP decision differently; they argue this
Court went too far in making new law when it upheld the
Phillips plaintiffs' § 1983 claims. Defendants contend the
FOP opinion articulates the extremely high threshold that must
be overcome in order to meet the conscience-shocking test and
note that the Supreme Court has only found it satisfied once (in
a case that involved forcible extraction of stomach contents) and
that the D.C. Circuit has also found it satisfied once (in a case
that involved a prisoner's allegations of "unprovoked, brutal
beatings" by correctional officers). Defendants maintain that
nothing in the instant case comes close to satisfying this
Defendants also allege that plaintiffs' § 1983 claim is based
on "essentially the violation of internal D.C. Fire Department
Standard Operating Procedures." Defendants submit the law of this
Circuit is clear that inconsistency with state or even federal
law is not sufficient to establish a constitutional violation,
that plaintiffs' claim would transform a local-law claim into a federal claim, and moreover that the SOPs do not
even have the status of DC law.
Finally, defendants discuss the Collins case at length
which is also discussed in detail in the FOP opinion and note
that despite facts very similar to those in Phillips (including
a claim that the city had violated the decedent employee's
constitutional right to life by following a custom and policy of
not training employees, not providing safety equipment and safety
warnings, failing to take notice after a prior incident that
allegedly should have given the city notice of the risks, and
violating a state statute), the Supreme Court in Collins was
"not persuaded that the city's alleged failure to train its
employees . . . was an omission that can properly be
characterized as arbitrary, or conscience-shocking, in a
constitutional sense." Collins, 503 U.S. at 128. Defendants
Collins, as elucidated by the Court of Appeals in
FOP, mandates the conclusion here that, even if a
failure to ensure compliance with the Fire
Department's SOPs caused plaintiffs' deaths and
injuries, no constitutional rights were violated.
`The Due Process Clause' does not `guarantee
municipal employees a workplace that is free of
unreasonable risks of harm.' Collins is consistent
with this Court's holding in Washington, and as the
Court of Appeals made clear in FOP, Collins does
not undermine or limit the vitality of Washington.
Collins, Washington, and now FOP thus hold that a
very large category of employee claims of inadequate
supervision, training and the like are not arbitrary
in the constitutional sense, even when a policy or
practice exposes such employees to the risk of death
or serious bodily injury.
Def. Resp. at 7. After careful consideration of the facts in the present case in
the context of the FOP decision, this Court concludes that it
does not "appear? beyond doubt that the plaintiff[s] can prove
no set of facts in support of [their] claim which would entitled
[them] to relief." Conley, 355 U.S. at 45-46. In this Court's
view, the distinguishing facts in the instant case compel a
different result in the conscience-shocking analysis than do the
facts in FOP.
An important basis for the court's decision in FOP seems to
be that the Mayor and DOC Director's decision to reduce the
number of corrections officers even while increasing the number
of inmates housed at the D.C. Jail was a rational policy choice
made amid competing resource demands and in the context of
outside pressures namely closure of the Lorton Correctional
Complex, Congressional appropriation cuts, and a surplus of
corrections officers following the closure of Lorton. Id. at
This Court is ever-cognizant of the need for deference to
governmental policy decisions decisions that require a weighing
and balancing of numerous, often competing, factors and interests
amid inevitable constraints and the slippery slope that would
result if § 1983 actions against government officials were
allowed to proceed every time a policy choice negatively impacted
an individual or group of individuals. In this case, however, plaintiffs' allegations do not amount to a case wherein the Fire
Chief and Deputy Chief simply made a policy decision in light of
budgetary, manpower or other outside pressures that it was not
feasible for the Fire Department to enact mandatory operating
procedures, adequately train firefighters, or heed clear warnings
that continued inaction would almost certainly lead to death or
serious injury. Rather, plaintiffs allege that the City and these
individual defendants did nothing because they simply did not
care. If true and again, at this stage of the proceedings this
Court must assume the allegations as plead this deliberate
indifference continues to shock this Court's conscience and
nothing in the FOP decision persuades this Court that its
previous conclusion is flawed.
Another aspect of the FOP decision presents a more difficult
obstacle for plaintiffs in this case: that is the Circuit Court's
suggestion that it will look for a "heightened obligation" toward
the individual if the shock-the-conscience test is to be met by
showing deliberate indifference (as opposed to some affirmative
state action). Id. at 1145-46. The court indicates that this
heightened obligation may be met when the state takes an
individual into custody, but the court does not provide other
examples of the heightened obligation. Id. Moreover, the
Circuit Court in FOP notes the difference between individuals
and employees and points out that the voluntary nature of
employment mitigates the municipality's constitutional obligations to the
employee, especially when the risks involved in the job are known
or foreseeable. Id. at 1146 (citing Washington,
802 F.2d at 1480-82).
Obviously, the firefighters in this case were not in custody at
the time of the District's alleged indifference. Nevertheless,
especially in light of plaintiffs' assertion that the
firefighters were not free under D.C. law to resign their
positions without the mayor's permission and one-month's notice,
see Pl. Mem. Analysis at 2 (citing D.C. Code 5-407(a)), the
firefighter's employment comes closer to the heightened
obligation standard than would the more common at-will, voluntary
Upon reconsideration of this Court's original decision denying
defendants' motion to dismiss the plaintiffs' claims against the
individual defendants, this Court again concludes that the
plaintiffs' claims against the individual defendants in their
personal capacities survive the defendants' motion to dismiss.
Defendants' motion to vacate, therefore, is denied.
The individual defendants' motion to vacate this Court's order
denying their motion to dismiss plaintiffs' claims against the
individual defendants in their personal capacities is DENIED. Plaintiffs have adequately alleged that those individuals created
a conscience-shocking danger that caused plaintiffs' injuries and
death and the individual defendants were deliberately indifferent
to the high probability of such tragedy. The defendants' motion
to vacate and to dismiss the derivative claims against the
District of Columbia is also DENIED.
An appropriate Order accompanies this Memorandum Opinion.