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January 11, 2005.

DISTRICT OF COLUMBIA, et al. Defendants.

The opinion of the court was delivered by: EMMET SULLIVAN, District Judge


I. Introduction

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 DENIED.

  II. Background

  The following is a recapitulation of the facts and the plaintiffs' claims, based on the Court's previous Memorandum Opinion.

  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 day.

  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 systems.

  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 effectively;
"(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 ...

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