## Facts

- In the early morning of September 20, 2009, a fire broke out at a low-income apartment complex on James Street in Utica, New York.
- Four tenants—Bruce A. Bush, Douglas K. Crane, Glenard W. Drake, Jr., and Terry Singh—died from the fire.
- Plaintiffs alleged the City of Utica knew the building violated multiple provisions of the city building code, including inadequate smoke detectors, fire alarms, and sprinkler systems.
- Plaintiffs alleged the City had pursued and obtained a court order requiring the owner to correct the violations, but the City did not enforce the order.
- Plaintiffs alleged that, during the fire, the Fire Department Chief, Russell Brooks, instructed firefighters not to enter the building to attempt rescues.
- Plaintiffs also alleged firefighters stopped a bystander from entering to try to rescue occupants; the bystander lacked firefighting equipment and protective gear.
- Surviving family members and estate representatives sued the City of Utica, the Utica Fire Department, and Chief Brooks under 42 U.S.C. § 1983 and New York law, alleging violations of the Fourteenth Amendment’s Due Process and Equal Protection Clauses and asserting related municipal-liability and state-law theories.
- Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).

## Issues

1. Whether plaintiffs stated a substantive due process claim based on the City’s alleged failure to enforce building-code requirements and alleged failure to conduct rescue efforts, under either a “special relationship” or “state-created danger” theory.
2. Whether plaintiffs stated an Equal Protection Clause claim by alleging that the City and Chief Brooks intentionally provided inferior or withheld fire-rescue services because the tenants lived in low-income housing.
3. Whether the complaint adequately alleged municipal liability against the City under Monell based on an official policy, custom, or practice tied to the asserted equal-protection violation.
4. Whether Chief Brooks was entitled to qualified immunity at the pleading stage on the surviving federal claims.
5. Whether the Utica Fire Department was a suable entity separate from the City, and how the ruling affected the remaining state-law claims.

## Decision

- The court granted the motion to dismiss the substantive due process claims, holding the allegations did not establish a constitutional duty to protect under either the “special relationship” exception or the “state-created danger” doctrine.
- The court denied the motion to dismiss the § 1983 equal protection claims brought by the estates/representatives of Bush, Crane, and Drake, concluding the complaint adequately alleged intentional differential treatment in the provision of fire-protection and rescue services based on residence in low-income housing.
- The court allowed the equal protection claims to proceed against the City under Monell, based on allegations of a policy or practice of not risking firefighters’ lives for residents of low-income properties and allegations tying that policy to the events at the fire scene.
- The court allowed the equal protection claims to proceed against Chief Brooks in his official and individual capacities and denied qualified immunity at the motion-to-dismiss stage for those surviving claims.
- The court treated the Utica Fire Department as a non-suable arm of the City rather than a separate defendant and dismissed it as an independent party.
- The court dismissed many state-law claims (including negligence-based theories tied to code enforcement and fire-protection decisions) on grounds including the lack of a special duty and other municipal defenses, leaving the federal equal-protection claims as the main surviving claims.

## Legal Principles

- The Due Process Clause generally does not impose an affirmative obligation on government to protect individuals from private harm or dangerous conditions; failure to provide protection, without more, is not a constitutional violation.
- A “special relationship” imposing a due-process duty arises only when the state restrains an individual’s liberty in a custodial or similar manner; regulatory authority and code enforcement do not create such custody.
- A “state-created danger” claim requires affirmative governmental conduct that creates or increases the risk of harm; allegations that officials failed to act (including failing to enforce housing or safety rules) ordinarily do not satisfy this requirement.
- Equal protection may be violated when officials intentionally treat similarly situated persons differently for an impermissible reason, including intentional discriminatory denial of public safety services based on residence in a low-income area.
- Municipal liability under § 1983 requires facts supporting that the alleged constitutional violation was caused by an official policy, custom, or practice, or by actions attributable to a municipal policymaker (Monell).
- Qualified immunity does not warrant dismissal where, taking the complaint’s allegations as true, a reasonable official would have known the alleged conduct violated clearly established equal-protection rights.
- Under New York law, municipalities are generally not liable in tort for discretionary governmental functions (including fire-protection decisions) absent a special duty owed to the injured parties, and municipal agencies are often not separately suable from the municipality itself.

## Conclusion

The court dismissed plaintiffs’ substantive due process theories based on the City’s alleged non-enforcement of building-code violations and alleged failures to rescue, but it permitted the estates of Bush, Crane, and Drake to proceed on § 1983 equal protection claims alleging intentional discriminatory withholding of fire-protection and rescue services tied to low-income housing status, including Monell claims against the City, and it denied qualified immunity to the Fire Chief at the pleading stage while dismissing the fire department as a separate defendant and disposing of most state-law claims.


Bush v. City of Utica, 948 F. Supp. 2d 246 (2013)