United States District Court, D. Delaware
FIREFIGHTER BRAD SPEAKMAN, RET.; SENIOR FIREFIGHTER TERRANCE TATE, RET.; LIEUTENANT JOHN CAWTHRAY; KELLI ANN STARR-LEACH as Administratrix of the Estate of LIEUTENANT CHRISTOPHER M. LEACH and as guardian ad litem of A.L. and M.L.; BRENDAN LEACH; LAURA FICKES, individually and as Executrix of the Estate of SENIOR FIREFIGHTER JERRY W. FICKES, JR.; BENJAMIN FICKES; JOSHUA FICKES; SIMONE CUMMINGS as Administratrix of the Estate of SENIOR FIREFIGHTER ARDYTHE D. HOPE; ARYELLE HOPE; ALEXIS LEE; and ARDAVIA LEE, Plaintiffs,
DENNIS P. WILLIAMS, individually; JAMES M. BAKER, individually; ANTHONY S. GOODE, individually; WILLIAM PATRICK, JR., individually; and THE CITY OF WILMINGTON, a municipal corporation, Defendants.
C. Crumplar, Raeann C. Warner, Jacobs & Crumplar, P.A.;
Stephen J. Neuberger, Thomas S. Neuberger, The Neuberger
Firm, P.A. - attorneys for Plaintiffs.
Malcolm Cochran, IV, Chad M. Shandler, Nicole K. Pedi,
Richards, Layton & Finger, P.A.- attorneys for Defendant
Willie J. Patrick, Jr.
NOREIKA, U.S. DISTRICT JUDGE.
before the Court are the objections of Plaintiffs (D.I. 64)
(“Plaintiffs' Objections”) and Defendant
Willie J. Patrick, Jr. (“Patrick”) (D.I. 71)
(“Patrick's Objections”) to Chief Magistrate
Judge Thynge's Report and Recommendation (D.I. 57,
“the Report”) relating to Patrick's Motion to
Dismiss (D.I. 41). The Report recommends granting
Patrick's motion to dismiss based on the statute of
limitations, 10 Del. C. § 8119, and dismissing the
Complaint against him with prejudice. (D.I. 57 at 37). The
Court has reviewed the Report, Plaintiffs' Objections and
Patrick's response thereto (D.I. 77)
(“Patrick's Response”), Patrick's
Objections and Plaintiffs' responses thereto (D.I. 79-82)
(“Plaintiffs' Responses”),  and has
considered de novo the relevant portions of
Patrick's motion to dismiss (D.I. 41, 42, 48) and
Plaintiffs' corresponding answering brief (D.I. 46) as
well as papers submitted with each. Fed.R.Civ.P. 72(b)(3).
The Court has also afforded reasoned consideration to any
unobjected-to portions of the Report. EEOC v. City of
Long Branch, 866 F.3d 93, 99-100 (3d Cir. 2017). For the
reasons set forth in this opinion, the objections of
Plaintiffs and Patrick are each SUSTAINED-in-PART and
OVERRULED-in-PART, the Report is ADOPTED as MODIFIED below as
to Patrick, and Patrick's motion to dismiss is GRANTED.
The Complaint as to Patrick is dismissed without prejudice.
Report sets forth a detailed description of the factual and
procedural background of this matter. (D.I. 57 at 2-12). The
parties have not objected to any of those sections of the
Report and the Court's reasoned consideration finds no
clear error. The Court therefore adopts those sections and
incorporates them here.
noted in the Report, this matter concerns the death of three
Wilmington Fire Department (“WFD”) firefighters
and substantial injury of three other firefighters as a
result of a house fire that occurred on September 24, 2016 in
Wilmington, DE. Plaintiffs allege that the injuries sustained
were proximately caused by the policies and actions of,
inter alia, Patrick, regarding “rolling
bypass, ” which Plaintiffs contend violated their
substantive rights guaranteed by the Fourteenth Amendment of
the United States Constitution. Patrick filed a motion to
dismiss for failure to state a claim under any of
Plaintiffs' three counts: (A) State-Created Danger; (B)
Shocks the Conscience; and (C) Maintenance of Policies,
Practices, and Customs. (D.I. 42 at 8-15). Patrick also
asserted that he is shielded from the suit by (D) qualified
immunity, (E) the applicable statute of limitations, and (F)
the political question doctrine. (D.I. 42 at 15-18). Finally,
Patrick alleged (G) that the family member plaintiffs lack
standing. (D.I. 42 at 18-19). Plaintiffs filed an answering
brief in opposition and the Magistrate Judge issued the
Report on August 28, 2019 (D.I. 57). The Report makes a
number of findings related to Patrick, but the conclusion
ultimately recommends dismissing the case in its entirety
based only on statute of limitations grounds. (D.I. 57 at
September 11, 2019, both Plaintiffs and Patrick filed
objections to the Report, (D.I. 64, 71). On September 25,
2019, each responded to the other's objections. (D.I. 77,
Motion to Dismiss for Failure to State a
ruling on a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must accept all
well-pleaded factual allegations as true and view them in the
light most favorable to the plaintiff. See Mayer v.
Belichick, 605 F.3d 223, 229 (3d Cir. 2010); see
also Phillips v. Cnty. of Allegheny, 515 F.3d 224,
232-33 (3d Cir. 2008). “To survive a motion to dismiss,
[however, ] a civil plaintiff must allege facts that
‘raise a right to relief above the speculative level on
the assumption that the allegations in the complaint are true
(even if doubtful in fact).'” Victaulic Co. v.
Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Dismissal under Rule 12(b)(6) is appropriate if a
complaint does not contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570)); see also Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). A
claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The Court is
not obligated to accept as true “bald assertions”
or “unsupported conclusions and unwarranted
inferences.” Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997) Schuylkill Energy Res.,
Inc. v. Pennsylvania Power & Light Co., 113 F.3d
405, 417 (3d Cir. 1997). Instead, “[t]he complaint must
state enough facts to raise a reasonable expectation that
discovery will reveal evidence of [each] necessary
element” of a plaintiff's claim. Wilkerson v.
New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d
Cir. 2008) (internal quotation marks omitted).
Review of Reports and Recommendations on Dispositive
power invested in a federal magistrate judge varies depending
on whether the issue is dispositive or non-dispositive.
“Unlike a nondispositive motion (such as a discovery
motion), a motion is dispositive if a decision on the motion
would effectively determine a claim or defense of a
party.” City of Long Branch, 866 F.3d at 98-99
(citations omitted). Under this standard, a motion to dismiss
under Rule 12(b)(6) is clearly dispositive.
reports and recommendations issued regarding dispositive
motions, Rule 72(b)(3) of the Federal Rules of Civil
Procedure instructs that “a party may serve and file
specific written objections to the proposed findings and
recommendations” “[w]ithin 14 days” and
“[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been
properly objected to.” See also 28 U.S.C.
§ 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195
(3d Cir. 2011). When no timely objection is filed, “the
court need only satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72(b) advisory committee
notes to 1983 amendment. “[B]ecause a district court
must take some action for a report and recommendation to
become a final order and because ‘[t]he authority and
the responsibility to make an informed, final determination .
. . remains with the judge, ” however, district courts
are still obligated to apply “reasoned
consideration” in such situations. City of Long
Branch, 866 F.3d at 99-100 (citing Mathews v.
Weber, 423 U.S. 261, 271 (1976); Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987)).
initial matter, the Court must determine whether the
parties' objections were both timely and
“specific.” Fed.R.Civ.P. 72(b)(2). Both sets of
objections were timely, as they were filed within the
requisite fourteen-day period. So, too, were the parties'
responses to their respective objections. Patrick's
Objections and Response are also specific - each of the
submissions specifically identifies the bases of the dispute
and references relevant counts and language from the Report
and Plaintiffs' Objections. Plaintiffs' Objections
and Responses, however, are not. Plaintiffs' Objections
do not focus on the counts of the Complaint, but rather offer
general complaints that the Report
“mischaracterized” the nature of the case, which
purportedly “infected” the analysis “on
many [unspecified] issues.” (D.I. 64 at 4). The only
count of the Complaint mentioned in Plaintiffs'
Objections is Count I. (D.I. 64 at 3, 4, 9). Plaintiffs'
Response to Patrick's Objections is more specific, at
least until it attempts to incorporate unspecified arguments
from Plaintiffs' responses regarding other defendants.
See supra note 2. As a matter of judicial efficiency
and so all matters related to Patrick and this motion to
dismiss may be addressed, however, the Court has considered
all issues in Plaintiffs' Responses that are specifically
targeted to Patrick, as well as Plaintiffs' objection in
footnote 9 of D.I. 65, which mentions Patrick by name and
identifies the issue being raised.
Count I - State-Created Danger
Complaint fails to allege facts sufficient to assert a claim
against Patrick for Count I. Count I of the Complaint does not
address individual defendants,  but rather addresses
“Defendants” as a group. (D.I. 1 ¶¶
481-498). The Report, thus, similarly addresses the
defendants as a group, finding that Plaintiffs' Complaint
fails to satisfy three of the four elements of a
state-created danger claim - those requiring: (1) the harm be
“foreseeable and fairly direct”; (2) the
existence of a “special relationship”; and (3)
use of “authority to create an opportunity for
danger” - but satisfies the fourth: (4) alleging
conduct that “shocks the conscience” under a
deliberate indifference standard. (D.I. 57 at 15-21). As
noted above, in its conclusions, the Report does not
recommend dismissal of Count I, specifically, as to Patrick
because it recommends dismissal of all counts against him
based on the statute of limitations. (D.I. 57 at 37).
does not object to the Report's conclusions regarding the
elements of Count I, and “concurs with [its] findings
and recommendation” that the count be dismissed
“against all Defendants for failure to state a claim
pursuant to Fed.R.Civ.P. 12(b)(6).” (D.I. 71 at 2).
Nevertheless, he submitted objections to Count I to argue
that Plaintiffs' Complaint fails to allege that he,
specifically, was a “fairly direct” cause of the
harm they endured and to “request an order from the
Court clarifying that he is entitled to dismissal on
Plaintiffs' state created danger claim on the grounds
that Plaintiffs failed to allege facts sufficient to support
his personal involvement in the allegations that form the
bases of Count I of the Complaint.” (D.I. 71 at 2-3).
Plaintiffs, on the other hand, protest the Report's
analysis of the “special relationship” prong .
(D.I. 64 at 4).Thus, the Court considers Patrick to object
to the Report's conclusion, or lack thereof, regarding
whether Plaintiffs have sufficiently stated a claim against
him for Count I based on its findings regarding the
“fairly direct” element as well as his lack of
personal involvement, and considers Plaintiffs to object to
the Report's finding regarding the “special
Foreseeable and Fairly Direct
Report finds that Plaintiffs do not satisfy the
“foreseeable and fairly direct” requirement of a
state-created danger claim because, although the
“foreseeability” aspect was sufficiently pleaded,
the Complaint “fail[s] to allege sufficient facts to
meet the [fairly direct] requirement.” (D.I. 57 at
party objects to the Report's conclusion that the
“foreseeability” requirement is met
“because the State-actors had actual knowledge and
awareness of risk associated with rolling bypass.”
(D.I. 57 at 17). Finding no clear error after reasoned
consideration, the Court adopts this portion of the Report.
regard to the “fairly direct” requirement, the
Report finds that the facts alleged by Plaintiffs are
insufficient as to all defendants because “[t]he
rolling bypass policy and/or inadequate staffing were not the
direct catalyst for the harm. This fire was the result of
arson committed by a third party.” (D.I. 57 at 18).
Patrick argues that “in addition to these findings with
respect to all Defendants, the Complaint's allegations
are also deficient to maintain Count I against [him]
specifically because there are no well-pleaded allegations
that [his] ‘enactment' of rolling bypass in 2009,
or its implementation through the end of his term in January
2013, were the ‘fairly direct' cause of the deaths
and injuries that occurred in the Canby Park fire.”
(D.I. 71 at 2).
fulfill the ‘fairly direct' requirement of the
state-created danger claim, the plaintiff must plausibly
allege that state officials' actions ‘precipitated
or were the catalyst for' the harm for which the
plaintiff brings suit.” Henry v. City of Erie,
728 F.3d 275, 285 (3d Cir. 2013) (quoting Morse, 132
F.3d at 910). “‘Precipitate,' in turn, means
‘to cause to happen or come to a crisis suddenly,
unexpectedly, or too soon.” Id. (quoting
Webster's Third New International Dictionary
1784 (1993); citing The Random House Dictionary of the
English Language 1521 (2d ed. 1987) (defining
“precipitate” as “to hasten the occurrence
of; bring about prematurely, hastily, or suddenly”);
id. at 325 (defining “catalyst” as
“a person or thing that precipitates an event or
change”)). “Thus, it is insufficient to plead
that state officials' actions took place somewhere along
the causal chain that ultimately led to the plaintiff's
harm.” City of Erie, 728 F.3d at 285. In other
words, in order for Plaintiffs' pleading to be
sufficient, there cannot be “too many links in the
causal chain after [Patrick] acted and before tragedy
struck.” Id. at 285-86.
left his position as Fire Chief in January 2013, more than
three and one-half years before the September 24, 2016 fire.
(D.I. 57 at 2). During that period, as Plaintiffs'
Complaint details, various intervening events occurred. For
• A new mayor, Dennis P. Williams
(“Williams”), was elected and a new fire chief,
Anthony S. Goode (“Goode”) was
• Williams and Goode enacted a similar, but “new
policy of ‘conditional company closures'”;
• Williams and Goode further understaffed the WFD by
delaying the filling of vacancies and transferring numerous
firefighters from fire ...