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
2

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.
3

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 
4

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, 
5

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. 
6

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 
7

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 oftrepeated 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 
8

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). 
9

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 
10

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 
11

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.”).
12

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 
13

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.”).)
14

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 deliberateindifference 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 
15

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.
16

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. 
17

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 
18

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 
19

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.”).
20

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.
1

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.
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 statecreated 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 
2

“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).
3

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 Cornwallon-Hudson Police Dep’t., 577 F.3d 415, 431–32 (2d Cir. 

2009).