# Phillips v. County of Allegheny > Court of Appeals for the Third Circuit · February 5, 2008 · 515 F.3d 224 URL: https://www.frixlaw.com/law-library/cases/9614313 ## Case - **Full name:** Jeanne PHILLIPS, Administratrix of the Estate of Mark Phillips, Deceased, Appellant v. COUNTY OF ALLEGHENY; Northwest Regional Communications; Allegheny County 9-1-1, F/K/A Northwest Regional Communications; Daniel Nussbaum; Danielle Tush; Brian Craig; Leonard Deutsch; Ryan Ging; Susan Zurcher; Phillip Cestra - **Court:** Court of Appeals for the Third Circuit - **Decided:** February 5, 2008 - **Citations:** 515 F.3d 224; 2008 U.S. App. LEXIS 2513; 2008 WL 305025 - **Precedential status:** Published - **Opinion:** Concurrence by Roth - **Judges:** Fisher, Nygaard, Roth - **Cited by:** 8,511 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9614313 ## How later opinions describe it (automated extraction) - stating that the “Supreme Court’s .Twom-bly formulation of the pleading standard can be summed up thus: ‘stating ... a claim requires a complaint with enough factual matter (taken as-true) to suggest’ the required element. This ‘does not impose a probability requirement at the… - stating that the “Supreme Court’s Twombly formulation of the pleading standard .can be summed up thus: ‘stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest’ the required element. This ‘does not impose a probability requirement at the … - stating that the “Supreme Court’s Twombly formulation of the pleading standard can be summed up thus: ‘stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest’ the required element. This ‘does not impose a probability requirement at the p… - stating the “Supreme Court’s Twombly formulation of the pleading standard can be summed up thus: ‘stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest’ the required element. This ‘does not impose a probability requirement at the plea… - stating the “Supreme Court's Twombly formulation of the pleading standard can be summed up thus: ‘stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest’ the required element. This ‘does not impose a probability requirement at the pleadi… ## Opinion text ROTH, Circuit Judge, Concurring: I concur in the opinion of the majority. I write separately to note a potential issue that could be created by broad application of the “class of one doctrine.” In the context of a substantive due process claim, the Supreme Court has established that to recover a plaintiff must establish that the behavior of the government “shocks the conscience” of a reasonable observer. County of Sacramento v. Lewis, 523 U.S. 833 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998). That is, the government’s behavior must be not just arbitrary and capricious, but shocking. In contrast, a plaintiff proceeding under an equal protection “class of one” theory may recover if she can establish that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562 , 120 S.Ct. 1073 , 145 L.Ed.2d 1060 (2000). Phillips is proceeding here on such a theory. A broad reading of Olech could allow any plaintiff with an insufficiently shocking due process claim to resurrect her constitutional claim by repleading her case as representing a “class of one” victimized by the particular government action at issue. 8 I do not believe that the Supreme Court intended Olech to undermine Lewis in this fashion, and I would urge the District *247 Court to be mindful of this issue as it conducts further proceedings in this case. . On the facts of Lewis itself, the representatives of the deceased motorcycle passenger could argue that while the officer’s actions in beginning a high speed pursuit might not shock the conscience, the officer did treat that particular motorcyclist differently than other similarly situated motorcyclists and that there was no rational basis for such a decision. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9614313. Public record. Not legal advice.