# McDonald v. Philadelphia Housing Authority

> District Court, E.D. Pennsylvania · August 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11122838

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 18, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VANESSA McDONALD, Individually and : CIVIL ACTION
as Co-Administrator of the Estate of :
Quinsha White, deceased, et al., : NO. 24-0057
Plaintiffs :
:
v. :
:
PHILADELPHIA HOUSING :
AUTHORITY, et al. :
Defendants :

NITZA I. QUIÑONES ALEJANDRO, J. AUGUST 18, 2025

MEMORANDUM OPINION

INTRODUCTION
This civil rights action arises out of the tragic deaths of twelve individuals, including
several children, following a horrific fire at a residential apartment building owned and managed
by the Philadelphia Housing Authority. The fire was started after an autistic five-year-old boy,
troubled by an insect infestation in the building, attempted to exterminate the infestation himself
by lighting on fire bugs crawling on his Christmas tree. There were no working smoke detectors
in the building at the time, a fact allegedly known to some of the named defendants who are
employees of the City of Philadelphia and/or the Philadelphia Housing Authority. Because of the
lack of working smoke detectors, the occupants of the building were not alerted to the fire until it
was too late.
Plaintiffs Vanessa McDonald, Jeffrey White, Estelle McDonald, Beverly Graham, and
James Williams, Jr. (collectively, the “Administrator Plaintiffs”) are the
Administrators/Administratrixes of the Estates of Quinsha White, Rosalee McDonald, Natasha
Wayne, Shaniece Wayne, Janiyah Roberts, Virginia Thomas, Quintien Tate-McDonald, and
Destiny McDonald (collectively, “Decedents,” and with Administrator Plaintiffs, “Plaintiffs”).
The Administrator Plaintiffs filed this action under 42 U.S.C. § 1983 against the City of
Philadelphia (the “City”), the City’s employee, Nadine Fulton (“Defendant Fulton”) (together with
the City, the “City Defendants”), the Philadelphia Housing Authority, and several of its
employees1 for violation of Plaintiffs’ substantive due process rights.

Before this Court is the City Defendants’ motion to dismiss filed pursuant to Federal Rule
of Civil Procedure 12(b)(6), in which the City Defendants seek the dismissal of the two claims
asserted against them (Counts III and IV) of the second amended complaint, (ECF 80), on the basis
that Plaintiffs have not alleged facts sufficient to meet their pleading burden on each claim. (ECF
85). Plaintiffs oppose the motion. (ECF 88).2 The issues raised in the motion have been fully
briefed and are ripe for disposition. For the reasons set forth, the City Defendants’ motion to
dismiss is granted as to Count IV and denied as to Count III.

BACKGROUND
When ruling on a motion to dismiss, this Court must accept as true all factual allegations
in the operative complaint and construe the facts alleged in the light most favorable to the plaintiff.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556
U.S. 662, 677 (2009)). The facts relevant to the underlying motion and alleged in the second
amended complaint are as follows:
The Philadelphia Housing Authority (the “PHA”) acquired the property
located at 869 North 23rd Street, Philadelphia, Pennsylvania (the “Property”) in
1967. At the time, the Property was a single-family dwelling. The PHA converted
the Property to a two-unit apartment comprised of Unit A (first floor) and Unit B
(second and third floors). Unit B has four bedrooms, a kitchen, living room, and is

1 Plaintiffs’ claims against the Philadelphia Housing Authority and its employees are not the subject
of this memorandum opinion.

2 This Court has also considered the City Defendants’ reply. (ECF 91).
approximately 1,600 square feet. Unit B’s living room and kitchen are on the
second floor, and its four bedrooms are on the third floor.

On May 17, 2011, Vanessa McDonald signed a lease with the PHA to rent
Unit B for herself and five of her children and grandchildren. By 2022, the
McDonald family had fourteen family members living the four-bedroom Unit B.
The PHA has restrictions regarding the number of occupants that may live in a
PHA-operated unit. Pursuant to these restrictions, a four-bedroom unit may have
no more than eight (8) occupants.

The Department of Human Services (“DHS”) is an agency of the City of
Philadelphia that exists, in part, to provide child welfare and juvenile justice
services with a goal to provide and promote safety, permanency, and well-being for
children. In December 2021, DHS received a report regarding a child occupant of
Unit B missing a dental appointment. Following the report, DHS social worker,
Defendant Fulton, conducted home safety visits on December 10 and December 21,
2021. During her December 10, 2021 visit at Unit B, Defendant Fulton noticed that
the smoke detectors were inoperable and concluded that they were inoperable due
to dead batteries. Virginia McDonald stated that she would purchase new batteries
before Defendant Fulton’s next visit.

On December 21, 2021, Defendant Fulton conducted a second safety visit.
During that visit, Defendant Fulton noted that the smoke detectors were checked
again and, although batteries were present, the devices were still inoperable. She
then represented to the occupants of Unit B that she would obtain and return with
working smoke detectors. Between December 21, 2021, and the deadly fire on
January 5, 2022, Defendant Fulton never brought the promised smoke detectors to
Unit B.

On January 5, 2022, a fire broke out in Unit B. Fire and smoke spread
throughout Unit B which resulted in the deaths of DeKwan Robinson, Destiny
McDonald, Janiyah Roberts, J’Kwan Robinson, Natasha Wayne, Quintien Tate-
McDonald, Quinsha White, Rosalee McDonald, Shaniece Wayne, Taniesha
Robinson, Tiffany Robinson, and Virginia Thomas. At the time of the fire, there
were no operable smoke detectors in Unit B.
LEGAL STANDARD
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) governs motions to dismiss for failure
to state a claim. Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the court
“must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions.” Fowler, 578 F.3d at 210–11. The court must determine “whether the facts alleged
in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Id. at
211 (quoting Iqbal, 556 U.S. at 679). The complaint must do more than merely allege the
plaintiff’s entitlement to relief; it must “show such an entitlement with its facts.” Id. (internal
quotation marks and citation omitted). “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.
8(a)) (alterations in original).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege facts sufficient to
“nudge[] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

DISCUSSION
In the operative second amended complaint, Plaintiffs assert two civil rights claims against
the City Defendants pursuant to 42 U.S.C. § 1983: at Count IV — a state-created danger claim
against the City and Defendant Fulton premised on Defendant Fulton’s alleged failure to follow
through on her promise to replace the inoperable smoke detectors; and at Count III — a Monell
claim against the City premised on the City’s alleged failure to promulgate adequate policies and
procedures for ensuring the safety of children in homes under the auspices of DHS and the City’s

failure to train its employees with respect to the same. The City Defendants move to dismiss both
claims. The parties’ respective arguments with respect to these two claims are addressed below.

Plaintiffs’ State-Created Danger Claims
Against the City Defendants (Count IV)
At Count IV, Plaintiffs assert § 1983 civil rights claims against the City Defendants under
the state-created danger theory. The City Defendants argue that these claims should be dismissed
because Plaintiffs have not alleged facts sufficient to support, inter alia, the requisite affirmative
conduct. This Court agrees.
Section 1983 enables plaintiffs to bring civil actions against any person who, acting under
the color of state law, deprives another of rights, privileges, or immunities secured by the
Constitution and/or laws of the United States. 42 U.S.C. § 1983. The statute does not confer rights
on individuals; rather, it serves as a vehicle “for vindicating federal rights elsewhere conferred.”
Graham v. Connor, 490 U.S. 386, 393–94 (1989). For a defendant to be liable under § 1983, there

must be an underlying violation of the plaintiff’s constitutional rights, the defendant must be
personally involved in that violation, and that defendant must have acted “under color of state
law.” Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). A municipal body is considered a
“person” which can be liable under § 1983, but only for its own acts. Monell v. New York Dep’t
of Soc. Servs., 436 U.S. 658, 690 (1978).
Here, Plaintiffs assert that the City Defendants violated Plaintiffs’ Fourteenth Amendment
due process rights when Defendant Fulton took and/or failed to take certain action that ultimately
resulted in the fire that caused Decedents’ deaths. The Fourteenth Amendment provides that a
state shall not “deprive any person of life, liberty, or property without due process of law.” U.S.

Const. amend. XIV, § 1. While courts recognize that the Due Process Clause protects an
individual’s interest in his or her bodily integrity, the Constitution imposes no affirmative duty on
state actors to protect citizens from the acts of private individuals. DeShaney v. Winnebago County
Dep’t of Soc. Servs., 489 U.S. 189, 195-96 (1989); Mears v. Connolly, 24 F.4th 880, 883 (3d Cir.
2022) (“The government has no general legal duty to keep people safe.”); Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (“[T]he Due Process Clause does not impose an
affirmative obligation on the state to protect its citizens.”). This is because the purpose of the Due
Process Clause is “to protect the people from the State, not to ensure that the State protected them
from each other.” DeShaney, 489 U.S. at 196.

The United States Court of Appeals for the Third Circuit (the “Third Circuit”) found that
DeShaney “stands for the harsh proposition that even though state officials know that a person is
in imminent danger of harm from a third party, the fourteenth amendment imposes upon those
state officials no obligation to prevent that harm.” Horton v. Flenory, 889 F.2d 454, 457 (3d Cir.
1989). Notwithstanding, the Third Circuit has also held that a state may be liable for its failure to
protect citizens against injuries inflicted or caused by private actors when the state “affirmatively
places the person in a position of danger the person would not otherwise have faced.” Kamara v.
Att’y Gen., 420 F.3d 202, 216 (3d Cir. 2005).
To state a claim under the so-called state-created danger theory, Plaintiffs must plead facts
sufficient to plausibly show the following elements:

(1) the harm ultimately caused was foreseeable and fairly direct;

(2) a state actor acted with a degree of culpability that shocks the
conscience;

(3) a relationship between the state and the plaintiff existed such that
the plaintiff was a foreseeable victim of the defendant’s acts, or a
member of a discrete class of persons subjected to the potential harm
brought about by the state’s actions, as opposed to a member of the
public in general; and

(4) a state actor affirmatively used his or her authority in a way that
created a danger to the citizen or that rendered the citizen more
vulnerable to danger than had the state not acted at all.
Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (internal quotation marks and
citations omitted). A plaintiff must plead facts sufficient to support all four of these elements.
Phillips, 515 F.3d at 235.
Here, the City Defendants argue that the facts alleged in Plaintiffs’ second amended

complaint fail to satisfy the second and fourth elements. As set forth below, this Court finds that
Plaintiffs have failed to plead facts sufficient to support the requisite affirmative action required
to satisfy the fourth element. Therefore, it will limit its analysis to this element. See id. (explaining
plaintiff’s failure to sufficiently plead the fourth element “obviates the need to analyze the other
three elements”).
The fourth element requiring an affirmative conduct by defendants “is typically the most
contested . . . because of the inherent difficulty in drawing the line between an affirmative act and
a failure to act.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 242 (3d Cir. 2016). This element
requires a plaintiff to allege facts to establish that state actors “used their authority to create an
opportunity that otherwise would not have existed.” Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d

Cir. 1996). “It is misuse of state authority, rather than a failure to use it, that can violate the Due
Process Clause.” Bright, 443 F.3d at 282. In other words, “[l]iability under the state-created
danger theory is predicated upon the states’ affirmative acts which work to the plaintiffs’
detriments in terms of exposure to danger.” D.R. v. Middle Bucks Area Vocational Tech. Sch., 972
F.2d 1364, 1374 (3d Cir. 1992). To satisfy this fourth element, a plaintiff must also allege facts to
establish “a direct causal relationship between the affirmative act of [each individual defendant]
and [the plaintiff’s] harm.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 432 (3d Cir. 2006)
(explaining that “the fourth element is satisfied where the state’s action was the ‘but for cause’ of
the danger faced by the plaintiff”).
In Ye v. United States, the Third Circuit subdivided the affirmative conduct requirement
into three conditions. 484 F.3d 634, 639 (3d Cir. 2007). “The three necessary conditions to satisfy
the fourth element of a state-created danger claim are that: (1) a state actor exercised his or her
authority, (2) the state actor took an affirmative action, and (3) this act created a danger to the

citizen or rendered the citizen more vulnerable to danger than if the state had not acted at all.” Id.
The first condition’s authority language is simply a reiteration of the state actor requirement for
all § 1983 claims. Id. at 640. The affirmative act requirement of the second and third conditions
necessitates an act that “amount[s] to a ‘restraint of personal liberty’ that is ‘similar’ to
incarceration or institutionalization.” Mears, 24 F.4th at 886 (quoting Ye, 484 F.3d at 640-41).
In Ye, the Third Circuit applied these principles to determine whether a publicly employed
medical doctor’s assurances that “there is nothing to worry about” and that the plaintiff need not
seek medical assistance were affirmative acts. 484 F.3d at 640. While a state actor’s assurances
can expose a plaintiff to more harm by causing him to rely on those assurances, the Third Circuit
found that such reliance is not a cognizable restraint of liberty under the Due Process Clause and,
therefore, “cannot be used as an end run around DeShaney’s core holding.” Id. at 642 (quoting

Rivera v. Rhode Island, 402 F.3d 27, 30 (1st Cir. 2005)). As such, the Third Circuit concluded
that a doctor’s assurances could not constitute a deprivation of liberty and held that “a mere
assurance cannot form the basis of a state-created danger claim.” Id. at 640, 642; see also Mears,
24 F.4th at 884 (“[A]ssurances and failures to warn are not affirmative acts.”); Bright, 443 F.3d at
284 (rejecting argument that government assurances to help—even when relied upon—were
sufficient to constitute an affirmative act and explaining that under DeShaney “no affirmative duty
to protect arises from the State’s expressions of intent to help an individual at risk.”).
In Morrow v. Balaski, the Third Circuit provided further guidance for distinguishing
“affirmative acts” from non-actionable “omissions” in the state-created danger context. 719 F.3d
160 (3d Cir. 2013). There, the plaintiffs alleged that school authorities permitted a criminally
adjudicated delinquent to return to school after serving a suspension for assaulting two fellow

students. Id. at 164. Upon her return, school authorities allowed the delinquent student to board
a bus on which one of the two students she had previously assaulted was riding. Id. The plaintiffs
argued that the school created a danger by affirmatively permitting the delinquent student to return
to school rather than expelling her. Id. at 179. Rejecting the plaintiffs’ argument, the Third Circuit
held that plaintiffs could not satisfy the fourth prong of the state-created danger exception by
simply recasting the omissions upon which the claims were based as affirmative acts. Id.
“[M]erely restating the Defendants’ inaction as an affirmative failure to act does not alter the
passive nature of the alleged conduct.” Id.
Here, in the operative second amended complaint, Plaintiffs allege the following purported
affirmative conduct by the City Defendants (through the acts of Defendant Fulton) with respect to

the inoperable smoke detectors:
158. Defendant Fulton conducted home safety visits on December 10, 2021,
and December 21, 2021.

159. During her December 10, 2021 safety visit at Unit B, Defendant Fulton
noticed that the smoke detectors were inoperable and concluded that
they were inoperable due to dead batteries. Her note from that visit
states that the smoke detectors were without batteries. Virginia
McDonald stated she would purchase new batteries before Defendant
Fulton’s next visit.

* * *

161. On December 21, 2021, Defendant Fulton conducted a second safety
visit. During that visit, Social Worker Fulton noted that the smoke
detectors were checked again and, although batteries were present, the
devices were still operable:
2. Safety Assessment, Decision and Plan (what actions occurred and why) :
The children appeared to be safe and well cared for during this visit. The home remained appropriate. SW will complete the PHMC application
with Mother during the next visit for bedding. The children continue to sleep on the couches/floor. The smoke detectors were checked again. The
batteries were present, but the device were still inoperable. The batteries were removed and inserted again without evidence of them working. It
is uncertain if it were the batteries or the device itself that wasn't working. SW reported that she would bring new devices during the next visit.

te OK OK
163. On December 21, 2021, Defendant Fulton affirmatively represented to
the occupants of Unit B that she would obtain and return with working
smoke detectors.
te OK OK
264. The City Defendants, acting under color of state law, through the
conduct alleged above, affirmatively exercised their authority in a
manner that created a danger to Plaintiffs’ Decedents and/or used its
authority in a way that rendered Plaintiffs’ Decedents more vulnerable
to danger than had Defendant Fulton not acted at all. Such conduct
included:
a. confirming that the smoke detectors were inoperable;
b. promising to return with operable smoke detectors to replace the
inoperable smoke detectors; and
c. requiring and allowing Plaintiff and Plaintiffs’ Decedents to
reasonably rely upon the representation that Social Worker Fulton
would return with operable smoke detectors.
(Sec. Am. Compl., ECF 80, at 49 158-159, 161, 163, and 264).
Like many of the plaintiffs in the long line of Third Circuit cases rejecting state-created
danger claims, Plaintiffs here attempt to characterize their claims as being based on the City
Defendants’ “affirmative[] exercise[] [of] authority.” A fair reading of the second amended
complaint, however, demonstrates otherwise. At the heart of each of the above allegations is the
mere assurance or “promise” of Defendant Fulton that she would return to the apartment with
operable smoke detectors and Plaintiffs’ alleged reliance on that assurance to their detriment. The
Third Circuit has repeatedly made clear, however, that mere assurances or promises to help, even
in the face of known dangers, are insufficient to sustain a state-created danger claim. See, e.g.,
10

Mears, 24 F.4th at 884 (“[A]ssurances and failure to warn are not affirmative acts.”); Ye, 484 F.3d
at 640 (“We hold that a mere assurance cannot form the basis of a state-created danger claim.”);
Bright, 443 F.3d at 284 (3d Cir. 2006) (holding under DeShaney that “no ‘affirmative duty to
protect arises . . . from the State’s . . . expressions of intent to help’ an individual at risk”); see also

DeShaney, 489 U.S. at 200 (“The affirmative duty to protect arises not from the State’s knowledge
of the individual’s predicament or from its expressions of intent to help him, but from the limitation
which it has imposed on his freedom to act on his own behalf.”). Here, there are no allegations of
affirmative conduct by the City Defendants that caused Plaintiffs’ harm. Rather, Plaintiffs have
alleged only that Defendant Fulton failed to follow through on her “promise” to replace the
inoperable smoke detectors. These allegations are the quintessential allegations of omission, i.e.,
a failure to act. Under the existing law of this Circuit, such “omissions are insufficient to trigger
substantive due process liability.” Kaucher, 455 F.3d at 435.3 Absent allegations of actionable
affirmative conduct by Defendant Fulton, Plaintiffs have not asserted viable claims under the state-
created danger exception.

This outcome is further supported by the Third Circuit’s decision in Mears. In Mears, the
plaintiff was assaulted by her son while visiting him at a state-run psychiatric hospital. 24 F.4th at
882. Before that visit, the plaintiff was assured by a state psychiatrist that it was safe to visit the
son, even though the son had severely beat another patient just days before the psychiatrist made
that assurance. Id. at 882-883. During the visit, the plaintiff was initially accompanied by a nurse,
but the nurse left the visitation room mid-visit, at which time the son attacked the plaintiff and beat

3 As noted by the Third Circuit in Bright, it has “never found a state-created danger claim to be
meritorious without an allegation and subsequent showing that state authority was affirmatively exercised.”
443 F.3d at 282 (emphasis added). Further, “state actors cannot ‘use their authority’ to create such an
opportunity by failing to act.” Id. at n.6; see also Kaucher, 455 F.3d at 433, n.11 (collecting cases in which
Third Circuit held that defendant’s “failures to act cannot form the basis of a valid § 1983 claim”).
her severely. Id. at 883. The plaintiff sued both the psychiatrist and the nurse under a state-created
danger theory. Id. at 883. The district court dismissed both claims. Id. On appeal, the Third
Circuit affirmed the dismissal of the claim against the psychiatrist, holding that his mere assurance
that the plaintiff could safely visit the son was not an affirmative act similar to incarceration or

institutionalization, as it “did not rob [the plaintiff] of her power to choose whether to visit. She
was free to say no.” Id. at 884. As to the nurse, however, the Third Circuit concluded that such
an act had been sufficiently alleged because the nurse “exited the room, withdrawing her
supervision mid-visit” and the plaintiff “could not leave [the visitation room] on her own.” Id. at
885. Rather, the plaintiff’s “movements within the facility were controlled by [the hospital’s]
personnel and she was not permitted to go outside the visiting room.” Id. This alleged action,
unlike the mere assurances of the psychiatrist, “robbed [the plaintiff] of the chance to decide
whether to have an unsupervised visit or take extra precautions. And that is a plausible deprivation
of liberty.” Id.
Unlike the nurse in Mears — who left the plaintiff alone in a visitation room that she could

not leave on her own without the assistance of the nurse or other hospital personnel — here,
Defendant Fulton did not restrict the apartment’s residents (the Decedents) from acting in any way,
including by replacing their own smoke detectors. In other words, Defendant Fulton’s conduct
did not “amount to a ‘restraint of personal liberty’ that is ‘similar’ to incarceration or
institutionalization.” Id. at 886 (quoting Ye, 484 F.3d at 640-41). This Court opines that Defendant
Fulton’s promise/assurance that she would return and replace the apartment’s smoke detectors is
akin, not to the nurse in Mears, but to the psychiatrist in Mears — who assured the plaintiff that
she could safely visit her son at the hospital. Like the psychiatrist’s assurance, to which the
plaintiff in Mears remained free to “say no,” 24 F.4th at 884, Defendant Fulton’s promise to replace
the inoperable smoke detectors in no way restricted Decedents’ liberty to take precautions to
protect themselves. As such, the Third Circuit’s decision in Mears undercuts Plaintiffs’ state-
created danger claims.
This Court’s decision is also supported by the Third Circuit’s decision in L.R. In L.R., a

kindergartener was sexually assaulted by an adult to whom an elementary school teacher released
the kindergartener without verifying that adult’s identity. Id. at 239. In holding the release of the
child to be an affirmative act for purposes of a state-created danger claim, the Third Circuit
explained:
The setting here is a typical kindergarten classroom. Children in
this setting are closely supervised by their teacher. Their freedom
of movement is restricted. Indeed, they are not likely to use the
bathroom without permission, much less wander unattended from
the classroom. In the classroom, the teacher acts as the gatekeeper
for very young children who are unable to make reasoned decisions
about when and with whom to leave the classroom. Viewed in this
light, [the child] was safe in her classroom unless and until her
teacher . . . permitted her to leave.

Id. at 243 (emphasis added). Here, unlike the child in L.R., Decedents’ “freedom of movement”
was not restricted in any way by Defendant Fulton’s conduct. Rather, Decedents were always free
to leave the apartment and/or replace the smoke detectors. As such, the Third Circuit’s decision
in L.R. provides Plaintiffs no support.
The Third Circuit’s focus on the status quo in L.R. further supports this Court’s decision.
Recognizing the “inherent difficulty in drawing a line between an affirmative act and a failure to
act,” the L.R. Court adopted the following approach for evaluating the affirmative conduct
element:
Rather than approach this inquiry as a choice between an act and an
omission, we find it useful to first evaluate the setting or the “status
quo” of the environment before the alleged act or omission occurred,
and then to ask whether the state actor’s exercise of authority
resulted in a departure from that status quo. This approach, which
is not a new rule or concept but rather a way to think about how to
determine whether this element has been satisfied, helps to clarify
whether the state actor’s conduct “created a danger” or “rendered
the citizen more vulnerable to danger than had the state not acted at
all.”

Id. at 243 (citations omitted). If the contested action was only “a maintenance of the status quo,”
the action is insufficient to create liability. Id. at 243-44.
Here, the status quo of the apartment and/or the inoperable smoke detectors did not change
as a result of Defendant Fulton’s conduct. At the time of Defendant Fulton’s inspection of the
apartment and her promise to replace the inoperable smoke detectors, the smoke detectors were
inoperable. The smoke detectors remained inoperable after her inspection and promise to replace
the smoke detectors. Because Defendant Fulton’s alleged conduct merely maintained the status
quo, the conduct is insufficient under L.R. to create liability. Id.
In sum, Plaintiffs’ attempt to frame Defendant Fulton’s alleged conduct as an affirmative
act by merely placing the word “affirmatively” before what clearly amounts to an assurance,
omission, and/or failure to act does “not alter the passive nature of the alleged conduct.” Morrow,
719 F.3d at 179. Under the well-settled case law, such “omissions are insufficient to trigger
substantive due process liability.” Kaucher, 455 F.3d at 435. Absent allegations of actionable
affirmative conduct by Defendant Fulton, Plaintiffs have not asserted viable claims under the state-
created danger exception. Accordingly, the City Defendant’s motion to dismiss Count IV is
granted.
Plaintiffs’ Monell Claim Against the City (Count III)
At Count III of the second amended complaint, Plaintiffs assert a Monell claim against the
City premised on, inter alia, the City’s alleged failure to promulgate adequate policies and
procedures for ensuring the safety of children in homes under the auspices of DHS and the City’s
failure to train its employees with respect to the same. In response, the City argues solely that this
claim fails because Plaintiffs’ state-created danger claims fail and relies on the Third Circuit’s
decisions in Johnson v. City of Phila., 975 F.3d 394 (3d Cir. 2020) and Brown v. Commonwealth
of Pa., Dep’t of Health Emergency Med. Servs. Training Inst., 318 F.3d 473 (3d Cir. 2003). (See

Defs. Mtn., ECF 85, at pp. 16-19). The City’s argument and reliance on these cases, however, is
misplaced.
In Johnson, the Third Circuit expressly acknowledged that “a municipality may be
‘independently liable for a substantive due process violation’ even if no municipal employee is
liable.” 975 F.3d at 403 n.13 (citations omitted). As such, the City’s bare argument that Plaintiffs’
Monell claims fail simply because Plaintiffs’ state-created danger claim fails, without more, lacks
merit. Moreover, the City gives short shrift to Plaintiffs’ Monell claims by characterizing them as
being premised merely on the same omissions and/or assurances as Plaintiffs’ above-dismissed
state-created danger claims. To the contrary, and as described above, Plaintiffs’ Monell claims, as
pled, are premised on the City’s alleged failure to promulgate adequate policies and procedures

for ensuring the safety of children in homes under the auspices of DHS and the City’s failure to
train its employees with respect to the same. The claims are different and have different
requirements. As such, the City’s sole reliance on this Court’s dismissal of the state-created danger
claims as the basis for its requested dismissal of the Monell claims is misplaced. Accordingly, the
City’s motion to dismiss Count III is denied.
CONCLUSION
For the reasons set forth, the City Defendants’ motion to dismiss is granted with respect to
Plaintiffs’ state-created danger claims asserted at Count IV and denied with respect to Plaintiffs’
Monell claims asserted at Count III. An Order consistent with this Memorandum Opinion follows.
NITZA I. QUIÑONES ALEJANDRO, J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11122838. Public record. Not legal advice.