Butrim et al v. Mayor and City Council of Baltimore

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
RACHEL BUTRIM, et al., 	*
*
Plaintiffs 	*
* 	Civ. No. MJM-25-796
v. 	*
*
MAYOR AND CITY COUNCIL 	*
OF BALTIMORE, 	*
*
Defendant. 	*
*
* 	* 	* 	* 	* 	* 	* 	* 	* 	*
MEMORANDUM OPINION
Plaintiffs brought this civil action against the Mayor and City Council of Baltimore (the
“City” or “Defendant”) alleging state-created danger in violation of the Due Process Clause, as
well as claims for negligence, survival, and wrongful death under Maryland law. This matter is
before the Court on the Defendant’s Motion to Dismiss. ECF No. 11. The motion is fully briefed,
and no hearing is necessary to resolve it. See Local Rule 105.6 (D. Md. 2025). For the reasons set
forth below, the Court shall grant Defendant’s Motion to Dismiss and dismiss this case without
prejudice.
I. 	BACKGROUND
A. Factual Background1
In the minutes before 6:00 a.m. on January 24, 2022, firefighters from the Third Battalion
of the Baltimore City Fire Department (“BFD”) responded to a fire at 205 South Stricker Street
1 The following facts are drawn from allegations in the Complaint (ECF No. 7).
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(the “Property”), a condemned rowhome in the Mount Clare neighborhood of Baltimore,
Maryland. ECF No. 7 (Compl.) ¶¶ 11, 75. Six firefighters were ordered to enter the structure, and
the house collapsed moments later. Id. ¶ 12. There were no markings or placards placed outside
the Property indicating that it was structurally compromised. Id. ¶ 11. After the collapse, a rescue
team removed two firefighters from the home; three of the others—Paul Butrim, Kelsey Sadler,
and 	Kenneth 	Lacayo—died; 	and 	the sixth 	firefighter—John 	McMaster—sustained 	serious
permanent injuries. Id. ¶ 12. (Paul Butrim, Kelsey Sadler, Kenneth Lacayo, and John McMaster
are referred to herein as “Plaintiff Firefighters.”)
Unbeknownst to Plaintiff Firefighters, the Property was structurally unsound at the time of
the fire. Id. ¶ 15. It had been vacant for fourteen years. Id. A fire at the Property in October 2015
caused a partial collapse of its interior, trapping and injuring three firefighters. Id. ¶ 34. In response
to this fire, the City condemned the Property because the fire’s damage left it “unsafe and
uninhabitable.” Id. Further, in March 2016, another fire left the Property exposed to the elements
by destroying its roof. Id. ¶ 35. Neighbors had repeatedly complained to the City about the safety
and structural integrity of the Property, but the City took no action to mitigate the risk. Id.
Due to the probability of injury or death in vacant and/or structurally compromised
buildings like the Property, federal agencies have enacted various safety requirements detailed in
the Complaint, such as the instruction that fire departments “implement a marking system to warn
unsuspecting firefighters not to enter [structurally compromised] properties,” and that information
about compromised properties be stored in a database and relayed to responding units during
dispatch. Id. ¶ 56. According to the U.S. Fire Administration (“USFA”), marking structurally
compromised condemned properties is the most effective tool to prevent firefighter deaths. Id.
Further, the National Institute for Occupational Safety and Health (“NIOSH”) has concluded that
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“almost every firefighter death caused by an unsafe vacant property collapse could have been
avoided with an adequate marking system.” Id.
In 2010, “to comply with federal regulators and industry standards,” as well as “in response
to the ‘serious known threats associated with unsafe vacant buildings,’” the City implemented a
program called Code X-Ray to ensure that firefighters would never be ordered into a structurally
unsafe condemned property. Id. ¶ 17 (no citation). Under Code X-Ray, the City marked structurally
compromised buildings with reflective placards or a painted red X, which warned firefighters not
to enter. Id. The City promised its firefighters, including Plaintiff Firefighters, that it would
maintain a database of all unsafe condemned structures under Code X-Ray, syncing that database
to the computer-aided fire dispatch system (“CAD”). Id. ¶ 18. The CAD system was supposed to
warn responding units and provide specific property details to guide risk assessment and
firefighting techniques. Id. It was meant to act as a failsafe if a structurally compromised building
was not physically marked by Code X-Ray. Id. A marking system like Code X-Ray was necessary
for the City to secure and maintain grants for municipal services, as new federal funding was
“increasingly conditioned on adequate safety and mitigation strategies for vacant and condemned
properties.” Id. ¶ 19. In addition to Code X-Ray, the BFD Manual of Procedure (“MOP”) 606-10
was another safety measure, stating, in relevant part:
The safety office has established a list of unsafe buildings. The list
will be used to inform responding units of unsafe conditions existing
at the location to which they are responding.
The safety office will enter the information into a database and will
forward unsafe property locations to fire communications to be
placed in CAD.
Id. at 4.
But the City discontinued the Code X-Ray program, failed to enforce MOP 606-10, and
“intentional[ly] cover[ed up] . . . the cessation of [the] Code X-Ray program” by “instruct[ing]
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those in charge to not send word out or put in writing such cessation.” Id. at 4–5, ¶¶ 11, 13, 22.
Plaintiffs claim that this concealment was “to prevent a mass exodus” from the BFD. Id. ¶ 23.
Further, former BFD Chiefs and elected City Officials “intentionally and deliberately chose not to
announce the discontinuation of Code X-Ray” because they did not want their names associated
with the discontinuation of a potentially life-saving program. Id. at 4–5. The Property’s fourteen-
year vacancy, the 2015 and 2016 fires, and the accompanying damage were required under MOP
606-10 to be disclosed to Plaintiff Firefighters, but were intentionally concealed. Id. ¶ 15. By
failing to input the relevant information about the Property into the CAD system as required by
MOP 606-10, the City led Plaintiff Firefighters to believe that the Property was not at serious risk
of collapse. Id. ¶¶ 11, 40. “Multiple former Chiefs and firefighters” requested reinstatement of
Code X-Ray and that firefighters be informed of the Property’s condemned status, but the City
declined to take these actions. Id. at 5. There were “warning” emails sent to City officials
concerning condemned vacant dwellings and the importance of data entry regarding these
properties, relaying “that it would be inevitable that firefighters would be hurt and/or killed,” but
these warnings were intentionally ignored. Id. at 6.
The City falsely portrayed that Code X-Ray was active. Id. ¶ 14. On January 5, 2012, the
City sent an email to BFD containing instructions to enforce the program, but there was no email
sent out about the program’s eventual discontinuation. Id. Plaintiff Firefighters, and other
firefighters, relied on the City’s repeated assurances, “and therefore understood, as a material term
of their municipal employment, that they would not be ordered into structurally unsafe condemned
buildings.” Id. ¶ 22. According to the Complaint, Plaintiff Firefighters would not have continued
working for the City if they knew that it had lied about Code X-Ray’s discontinuation “because
they valued their lives and families more than their municipal jobs.” Id.
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The City maintained this “policy of deception” for more than ten years before the incident
at issue here, and as a result of this policy, at least one other Baltimore firefighter was killed in
2014 and three others injured in 2015. Id. ¶¶ 21, 24. After the 2014 death, NIOSH found numerous
deficiencies in the City’s firefighting protocols regarding vacant structures and “explicitly told the
City to begin marking unsafe vacant properties to avoid another tragedy.” Id. ¶ 25. Between 2014
and 2018, the Occupational Safety and Health Administration, USFA, and the National Fire
Protection Association (“NFPA”) updated their standards and advised municipalities, including
the City, to place exterior signs on structurally compromised buildings. Id. ¶ 27. The City never
corrected its deficiencies and instead continued lying to firefighters about the existence of Code
X-Ray and, therefore, material terms of their employment. Id. ¶ 26. The Complaint alleges that the
City was deliberately indifferent when it intentionally disregarded the risk of unmarked,
structurally unsafe, condemned properties and intentionally exposed Plaintiff Firefighters to that
risk. Id. ¶ 32.
After the 2015 and 2016 fires at the Property, inspectors reported that the Property was
structurally compromised and needed to be demolished, but the City never acted on the reports
and, therefore, ignored actual notice that the Property was at serious risk of collapse. Id. ¶ 40. The
City never marked or demolished the Property and never input the relevant information into the
CAD system. Id. The Complaint further alleges that the City failed to act because, since at least
2017, it was withholding certain vacant properties in impoverished neighborhoods from public tax
sale due to an agreement with the Southwest Partnership (“the Partnership”), a nonprofit
community organization. Id. ¶ 68. The Partnership would purchase these properties through a
separate bulk tax sale or recommend developers to the City. Id. These properties were not marked
in accordance with Code X-Ray because being marked made the properties unattractive to
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potential investors. Id. ¶ 69. This scheme ensured revenue for the Partnership and the City, while
leaving vacant properties, like the Property, to further degenerate without warning to firefighters.
Id. ¶¶ 16, 71.
After the incident at issue here, NIOSH found that the City violated numerous USFA
standards and NFPA directives. Id. ¶ 29. The Board of Inquiry (“BOI”) Line of Duty Death Report
concluded, in relevant part, “There was no program or policy in effect that addressed notification
to [firefighters] of dwellings which were vacant and unsafe,” and “The absence of critical building
information and the lack of a visual cue on the building was detrimental to the outcome of this
fire.” Id. ¶ 37. Therefore, according to the Complaint, the BOI “confirmed that the City fabricated
the existence and/or the implementation of the Code X-Ray program, purposely misleading
firefighters . . . since at least 2010.” Id. ¶ 38.
B. Procedural Background
Plaintiffs are Rachel Butrim, individually as the surviving spouse and as personal
representative of the Estate of Paul Butrim; Paisley Butrim, individually as the surviving daughter
of Paul Butrim; Lacey Marino, as personal representative of the Estate of Kelsey Sadler; Brandon
Sadler, individually as the surviving spouse of Kelsey Sadler; Jerry Norman, individually as the
surviving father of Kelsey Sadler; Gloria Lacayo, individually as surviving mother and as personal
representative of the Estate Kenneth Lacayo; and John McMaster.2 These Plaintiffs previously
brought suit against the City asserting the same constitutional claim under 42 U.S.C. § 1983 and
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). This Court granted
Defendant’s motion to dismiss in the prior case and dismissed the action without prejudice. See
2 Additionally, this litigation is brought for the use of Ulonda Butrim. As a use-plaintiff, “the court
may declare and protect [her] rights,” but she “is not a party to the action in a legal sense.” Jefferson v.
Ametek, Inc., 86 F.R.D. 425, 428 (D. Md. 1980) (quoting 67A C.J.S. Parties § 15 at 667).
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Butrim v. Mayor of Balt. (“Butrim I”), Civ. No. MJM-24-1284, 2024 WL 5055196 (D. Md. Dec.
9, 2024).
On January 21, 2025, Plaintiffs brought a new civil action against Defendant in the Circuit
Court for Baltimore City. ECF No. 1 ¶ 1. In the instant case, Plaintiffs re-assert their § 1983 Monell
claim alleging the City subjected Plaintiff Firefighters to a state-created danger in violation of their
substantive due process rights, and they add claims for negligence, survival, and wrongful death
under Maryland law.
Defendant removed the instant case to this Court on March 11, 2025, ECF No. 1-2, and
filed a Motion to Dismiss the Complaint a week later, arguing that Plaintiffs fail to state any
plausible claim for relief, ECF No. 11. Plaintiffs responded in opposition to Defendant’s Motion,
ECF No. 16, and Defendant replied, ECF No. 18.
II. 	STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure constitutes
an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails
as a matter of law “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
Under Rule 8(a)(2), a complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This rule is to “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (cleaned up). “In alleging fraud or mistake,” however, Rule 9(b) requires
a party to “state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ.
P. 9(b). “[T]he ‘circumstances’ required to be pled with particularity under Rule 9(b) are ‘the time,
place, and contents of the false representations, as well as the identity of the person making the
misrepresentation and what he obtained thereby.’” McCauley v. Home Loan Inv. Bank, F.S.B., 710
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F.3d 551, 559 (4th Cir. 2013) (citation omitted). “The standard set forth by Rule 9(b) aims to
provide defendants with fair notice of claims against them and the factual ground upon which they
are based, forestall frivolous suits, prevent fraud actions in which all the facts are learned only
following discovery, and protect defendants’ goodwill and reputation.” Id. (citation omitted).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough factual
allegations “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A complaint need not include “detailed factual allegations” to satisfy
Rule 8(a)(2), but it must set forth “enough factual matter (taken as true) to suggest” a cognizable
cause of action, “even if . . . [the] actual proof of those facts is improbable, and . . . recovery is
very remote and unlikely.” Twombly, 550 U.S. at 555–56 (internal quotation marks omitted).
Furthermore, federal pleading rules “do not countenance dismissal of a complaint for imperfect
statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, 574 U.S.
10, 11 (2014) (per curiam). However, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action’s elements will not do.” Twombly, 550 U.S. at 555 (cleaned up). A
complaint must contain factual allegations sufficient “to raise a right to relief above the speculative
level.” Id. “[T]ender[ing] ‘naked assertion[s]’ devoid of ‘further factual enhancement’” does not
suffice. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (third alteration in Iqbal).
When considering a motion to dismiss, a court must take the factual allegations in the
complaint as true and draw all reasonable inferences in favor of the plaintiff. King v. Rubenstein,
825 F.3d 206, 212 (4th Cir. 2016). At the same time, “a court is not required to accept legal
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conclusions drawn from the facts.” Retfalvi v. United States, 930 F.3d 600, 605 (4th Cir. 2019)
(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “A court decides whether [the pleading]
standard is met by separating the legal conclusions from the factual allegations, assuming the truth
of only the factual allegations, and then determining whether those allegations allow the court to
reasonably infer” the defendant’s liability for the alleged wrong and the plaintiff’s entitlement to
the remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011), cert
denied, 566 U.S. 937 (2012).
III. 	DISCUSSION
Defendant moves to dismiss the Complaint in its entirety for Plaintiffs’ failure to state any
plausible claim for relief. Specifically, Defendant argues that Plaintiffs fail to state a plausible
claim for an unconstitutional state-created danger because they do not allege sufficient facts to
show that the City took affirmative actions with the intent to harm Plaintiff Firefighters or
fraudulently induced them into an employment relationship. ECF No. 11-1 at 5–21; ECF No. 18
at 2–11. Plaintiffs’ Monell claim under 42 U.S.C. § 1983, Defendant argues, cannot stand on its
own without a plausible constitutional violation committed by a government employee. ECF No.
11-1 at 21; ECF No. 18 at 11–13. Defendants contend that Plaintiffs’ state-law claims must be
dismissed because their exclusive remedy for damages from workplace negligence is through the
Maryland Workers’ Compensation Act (“WCA”). ECF No. 11-1 at 21–25; ECF No. 18 at 13–15.
In their opposition, Plaintiffs argue that the intent-to-harm standard does not apply, that
deliberate indifference is the level of culpability sufficient to sustain their state-created danger
claim, and that they have alleged enough facts to plead fraud and deliberate indifference by the
City amounting to a systemic due process violation under Monell. ECF No. 16 at 3–22. Plaintiffs
argue that their state-law claims are not preempted by the WCA because they allege constitutional
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violations, the statute only bars suits by “covered employees” and their “dependents,” and the
statute’s exclusivity rule would unconstitutionally deny Plaintiffs a remedy. Id. at 22–30.
As it did in Butrim I, the Court shall grant Defendant’s Motion to Dismiss. While the facts
alleged in the Complaint are tragic and alarming, this Court is constrained by Fourth Circuit
precedent to find them insufficient to state a plausible claim under § 1983 for a state-created danger
violation of the Due Process Clause. Specifically, Plaintiffs fail to allege that the City took
affirmative acts to create or increase a danger to Plaintiff Firefighters with the intent or purpose of
harming them. And Plaintiffs do not allege sufficient facts to call for any lesser standard of
culpability than intent to harm. Finally, Plaintiffs’ state-law claims are plainly barred by the WCA
and Maryland courts’ interpretation of that statute. Because Plaintiffs fail to state any plausible
claim for relief against the City, their Complaint must be dismissed.
A. State-Created Danger
Count One of the Complaint asserts a claim against the City under 42 U.S.C. § 1983 and
Monell for state-created danger in violation of Plaintiff Firefighters’ substantive due process rights.
Plaintiffs seek the reassert the same Monell claim this Court dismissed in Butrim I for their failure
to plead an underlying constitutional violation.
1. 	Legal Background
In the Memorandum Opinion, I summarized the legal principles that apply to Count One
as follows:
Title 42, United States Code, Section 1983 provides a right
of action against any person who, acting under color of state law,
“subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and
laws” of the United States. 42 U.S.C. § 1983. Thus, to sustain an
action under § 1983, a plaintiff must demonstrate that: (1) he
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suffered a deprivation of “rights, privileges, or immunities secured
by the Constitution and laws” of the United States; and (2) the act
or omission causing the deprivation was committed by a person
acting under color of law. West v. Atkins, 487 U.S. 42, 45 n.3 (1988).
“[A] viable § 1983 Monell claim consists of two components: (1)
the municipality had an unconstitutional policy or custom; and (2)
the unconstitutional policy or custom caused a violation of the
plaintiff’s constitutional rights.” Green v. Obsu, Civ. No. ELH-19-
2068, 2020 WL 758141, at *10 (D. Md. Feb. 13, 2020) (citations
omitted).
The provision in the Fourteenth Amendment to the United
States Constitution that “‘[n]o State shall . . . deprive any person of
life, 	liberty, 	or 	property, 	without 	due 	process 	of 	law’ 	. 	. 	.
‘guarante[es] more than fair process[.]” Cnty. of Sacramento v.
Lewis, 523 U.S. 833, 840 (1998) (citations omitted). Substantive due
process “bar[s] certain government actions regardless of the fairness
of the procedures used to implement them[.]” Id. (citation omitted).
The U.S. Supreme Court has explained that the concept of due
process, at its core, is protection against arbitrary governmental
action. See id. at 845; Wolff v. McDonnell, 418 U.S. 539, 558 (1974).
In cases involving “abusive executive action[,]” the Court has
“repeatedly 	emphasized 	that 	only 	the most 	egregious official
conduct 	can 	be 	said 	to 	be 	‘arbitrary 	in 	the 	constitutional
sense[.]’” Lewis, 523 U.S. at 846 (quoting Collins v. Harker
Heights, 503 U.S. 115, 129 (1992)). To establish a substantive due
process violation based on executive action, the challenged conduct
must be “so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.” Dean ex rel. Harkness v.
McKinney, 976 F.3d 407, 413 (4th Cir. 2020) (citation omitted); see
also Waybright v. Frederick Cnty., Md., 528 F.3d 199, 205 (4th Cir.
2008) (“[T]he Supreme Court has, for half a century now, marked
out executive conduct wrong enough to register on a due process
scale as conduct that ‘shocks the conscience,’ and nothing less.”)
(quoting Lewis, 523 U.S. at 846). “To be conscience shocking, a
defendant’s behavior must lack any reasonable justification in the
service of a legitimate governmental objective.’” Washington v.
Hous. Auth. of the City of Columbia, 58 F.4th 170, 177 (4th Cir.
2023) (quoting Lewis, 523 U.S. at 846).
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Whether 	a 	government 	actor’s 	conduct 	“shocks 	the
conscience” turns on its degree of culpability. Waybright, 528 F.3d
at 205; see also Lewis, 523 U.S. at 847 (“While the measure of what
is conscience shocking is no calibrated yard stick, it does . . . ‘poin[t]
the way.’”) (citation omitted). “For a due process challenge to
executive action to succeed, the general rule is that the action must
have been ‘intended to injure in some way unjustifiable by any
government interest.’” Waybright, 528 F.3d at 205 (quoting Lewis,
523 U.S. at 849). At the other end of the “culpability spectrum” lies
“negligently inflicted harm,” which is “categorically beneath the
threshold of constitutional due process.” Id. (quoting Lewis, 523
U.S. at 848–49). “[C]ulpability falling within the middle range”
between intentionally and negligently inflicted harm “may have
constitutional implications, but only in special circumstances.” Id.
(quoting Lewis, 523 U.S. at 849). Courts evaluating due process
claims grounded in this middle range of the culpability spectrum
“should proceed with ‘self-restraint’ and ‘utmost care,’ . . . and
make ‘an exact analysis’ of the circumstances presented ‘before any
abuse of power is condemned as conscience shocking[.]’” Id.
(quoting Collins, 503 U.S. at 125, and Lewis, 523 U.S. at 850).
In Collins, the Supreme Court affirmed dismissal of a § 1983
due process claim based on “the city’s customar[y] fail[ure] to train
or warn its employees about known hazards in the workplace[,]”
which was alleged to have resulted in the death of a municipal
employee. 503 U.S. at 117. The Court rejected the proposition that
“the governmental employer’s duty to provide its employees with a
safe working environment is a substantive component of the Due
Process Clause.” Collins, 503 U.S. at 126. More specifically, the
Court rejected the notion “that the city’s alleged failure to train its
employees, or to warn them about known risks of harm, was an
omission 	that 	can 	properly 	be 	characterized 	as 	arbitrary, 	or
conscience shocking, in a constitutional sense.” Id. at 128. In its
analysis, the Court noted that the complaint did not charge the city
with a “willful” violation of the decedent employee’s rights and did
not allege that the city or its agents “deliberately harmed” him. Id.
at 125.
As a general matter, “the Due Process Clause does not
require the State to provide its citizens with particular protective
services,” and “the State cannot be held liable for injuries that could
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have been averted had it chosen to provide them.” Turner v. Thomas,
930 F.3d 640, 645 (4th Cir. 2019) (quoting DeShaney v. Winnebago
Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196–97 (1989)). There are
two exceptions to this rule: (1) “when the individual and the state
have a ‘special relationship,’ such as a custodial relationship, that
gives rise to an affirmative duty to protect[;]” and (2) when a state
actor takes “affirmative actions” that “create[] or enhance[] the
dangerous conditions[,]” resulting in injury. Id. (citing DeShaney,
489 U.S. at 199–201, and Pinder v. Johnson, 54 F.3d 1169, 1176
(4th Cir. 1995) (en banc)). The latter exception is known as the
“state-created danger” doctrine. Id.
“[T]o establish § 1983 liability based on a state-created
danger theory, a plaintiff must show that the state actor created or
increased the risk of private danger, and did so directly through
affirmative acts, not merely through inaction or omission.” Doe v.
Rosa, 795 F.3d 429, 439 (4th Cir. 2015). “[T]he state-created danger
doctrine is narrowly drawn, and the bar for what constitutes an
‘affirmative act’ is high.” Turner, 930 F.3d at 645 (citing Pinder, 54
F.3d at 1175). A government actor does not “create” a danger in
“simply fail[ing] to provide adequate protection from it.” Pinder, 54
F.3d at 1175. See also Turner, 930 F.3d at 646 (highlighting the
difference 	between 	acts 	and 	omissions 	and 	warning 	against
recasting omissions as acts).
In Waybright v. Frederick Cnty., Md., the Fourth Circuit
affirmed summary judgment in favor of the municipal defendants
on the plaintiffs’ due process claim based upon a fire department
recruit’s accidental death following an intensive physical training
session. 528 F.3d at 208. As relevant here, the Fourth Circuit
rejected the plaintiffs’ contention that Waybright was in a “special
relationship” with his supervisor such that the government had “a
duty to act on [Waybright’s] behalf and its failures to act [were]
measured on a deliberate indifference standard[.]” Id. at 207. The
court recognized that “a ‘special relationship’ is all but synonymous
with a custodial relationship.” Id. (citing DeShaney, 489 U.S. at
199–200). “The idea of a custodial relationship is a circumscribed
one, grounded in the rationale DeShaney gives for it: ‘[W]hen the
State by the affirmative exercise of its power so restrains an
individual’s liberty that it renders him unable to care for himself,
and at the same time fails to provide for his basic human needs . . .
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it transgresses the substantive limits on state action. . . .’” Id.
(quoting DeShaney, 489 U.S. at 200). Therefore, for a relationship
to be considered custodial for due process purposes, there must be
some 	sort 	of 	confinement, 	such 	as 	incarceration 	or
institutionalization. Id. (citing Pinder, 54 F.3d at 1175). The special
relationship 	doctrine 	did 	not 	apply 	because 	the 	decedent 	in
Waybright was free to walk away from the training session and the
job. Id.
Furthermore, the Fourth Circuit ruled that the state-created
danger doctrine could not apply in light of the Supreme Court’s
holding in Collins that “due process does not impose a duty on
municipalities to provide their employees with a safe workplace or
warn them against risks of harm (though state tort law may).” Id.
Applying the state-created danger doctrine in cases like Waybright
would risk displacing state tort law with federal constitutional law
“whenever an accident happens during activities sponsored by the
state.” 	Id. 	at 	208. 	The 	court 	noted 	“immense” 	practical
consequences of finding a state-created danger in such cases:
“[Courts] might well inject federal authority into public school
playground incidents, football (or even ballet) practice sessions, and
class field trips, not to mention training sessions for government
jobs that require some degree of physical fitness.” Id.
The Fourth Circuit later applied Collins and Waybright in
Slaughter v. Mayor & City Council of Baltimore, 682 F.3d 317 (4th
Cir. 2012). In Slaughter, a fire department recruit, Racheal Wilson,
died during a “live burn” training exercise. 682 F.3d at 319. Her
survivors and estate brought an action against the Mayor and City
Council of Baltimore under § 1983 alleging that the fire department
violated Wilson’s substantive due process rights by staging the
exercise with deliberate indifference to her safety, “so as to shock
the conscience.” Id. Specifically, the plaintiffs alleged that Wilson’s
death could have been avoided with “adequate preparations,” but the
fire department willfully violated “nationally-recognized safety
standards” and “created unduly dangerous conditions in staging the
exercise.” Id. at 320.
The Fourth Circuit affirmed dismissal of the complaint for
failure to state a claim. Applying Collins and Waybright, the court
held that the complaint “f[ell] short of alleging a substantive due
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15
process violation” because it “d[id] not . . . allege that the Fire
Department staged the live burn training exercise with the purpose
of causing harm to Wilson or to any other recruit[.]” Id. at 319. The
court recognized that the allegations may have been consistent with
deliberate indifference, id. at 322, and may have supported a cause
of action under state law, id. at 319. “But in the voluntary
employment context,” the plaintiffs did not allege “arbitrary (in the
constitutional sense) or conscience-shocking conduct because they
did not assert that the Fire Department intended to harm Wilson, as
would be necessary to establish a substantive due process violation.”
Id. at 322 (citing Collins, 503 U.S. at 125–27 & n.10, and Lewis, 523
U.S. at 848–49). The Fourth Circuit ultimately held, in the context
of this case, that the fire department’s constitutional liability
“turn[ed] on whether it intended to harm the new recruits.” Id. at
323.
This intent-to-harm standard has been consistently applied
by district courts in the Fourth Circuit. See Est. of Cunningham v.
Mayor & City Council of Baltimore, 665 F. Supp. 3d 725, 736–37
(D. 	Md. 	2023) 	(dismissing 	state-created 	danger 	claim 	where
plaintiffs alleged that the defendants “deliberately chose not to
repair or properly maintain” work environment and “deliberately
chose not to train or inform” employees about safety policies, but
plaintiffs did not plausibly allege an intent to harm); Evans v.
Maryland Nat’l Cap. Parks & Plan. Comm’n, Civ. No. TDC-19-
2651, 2020 WL 6703718, at *13–14 (D. Md. Nov. 13, 2020)
(declining to dismiss substantive due process claim where plaintiffs
plausibly alleged an intent to harm through repeated use of racial
slurs, baseless and harassing investigations, unwarranted discipline,
and an unjustified medical suspension). Accord Smith v. City of
Greensboro, No. 1:19CV386, 2020 WL 1452114, at *15 (M.D.N.C.
Mar. 25, 2020) (“Outside of the custodial context, government
conduct normally does not shock the conscience (at least not in the
constitutional sense) unless it was ‘intended to injure in some way
unjustifiable by any government interest’—a higher standard of
fault than deliberate indifference.”); Murphy-Taylor v. Hofmann,
968 F. Supp. 2d 693, 734–36 (D. Md. 2013) (“‘[I]n the voluntary
employment context,’ the employee plaintiff must show that the
governmental employer defendant ‘intended to harm’ its employee
in order to ‘establish a substantive due process violation.’”) (quoting
Slaughter, 682 F.3d at 322) (emphasis in original)). In fact, given
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the Fourth Circuit’s consistently narrow reading of the state-created
danger doctrine, that court noted in Turner that it has “never issued
a published opinion recognizing a successful state-created danger
claim.” Turner, 930 F.3d at 646. This statement remains true today,
to this Court’s knowledge.
Butrim I, 2024 WL 5055196, at *4–6.
2. 	Analysis
The Court remains unpersuaded that Plaintiffs allege sufficient facts to remove this case
from the “voluntary employment context” governed by the Fourth Circuit’s holding in Slaughter.
682 F.3d at 322. Plaintiff Firefighters were employees of the City performing work within the
scope of their employment at the time of the incident at issue in this case. Thus, in order to state a
plausible state-created danger claim, Plaintiffs must allege not only that the City “created or
increased the risk of private danger” to Plaintiff Firefighters “directly through affirmative acts,
[and] not merely through inaction or omission[,]” Rosa, 795 F.3d at 439, but that the City took
these affirmative acts with the intent to harm—that is, “with the purpose of causing harm” to—
Plaintiff Firefighters, Slaughter, 682 F.3d at 319, 323.
Plaintiffs argue that they have sufficiently alleged affirmative conduct by the City that
created or increased the risk of harm Plaintiff Firefighters. ECF No. 16 at 16. Specifically, the
Complaint includes allegations that the City “deliberately” and “intentionally” discontinued the
Code X-Ray program, Compl. ¶¶ 14, 22; failed to implement MOP 606-10, id. at 4–5; concealed
“the cessation of [the] Code X-Ray program” by instructing those in charge to “not put in writing”
that the City had “abandoned” it, id. ¶¶ 11, 13, 22; disseminated an email containing enforcement
instructions for the program to all rank-and-file firefighters on January 5, 2012, continuing a false
portrayal that the program was active after it had been quietly discontinued, id. ¶ 14; “instituted a
policy not to demolish, mark, or track” condemned properties “at imminent risk of collapse,” id. ¶
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9; “withheld information” about the history and condition of the Property from the CAD system,
Compl. at 3; and sent Plaintiff Firefighters into the Property on January 24, 2022, knowing that it
had previously collapsed, remained structurally unsound, and would have been visibly marked as
such if the Code X-Ray program had not been terminated, id. ¶¶ 15, 34–35, 40.
In cases alleging a state-created danger, the Court must be wary of attempts by plaintiffs
to recast a government actor’s omissions as “affirmative acts” through artful pleading. See Rosa,
795 F.3d at 441 (quoting Pinder, 54 F.3d at 1176 n.*) (“[A]lthough ‘inaction can often be artfully
recharacterized as “action,” courts should resist the temptation to inject this alternate framework
into omission cases.”). Furthermore, “in the state-created danger context,” the concept of
“affirmative acts” is “quite limited in scope” and “should not extend ‘beyond the context of
immediate interactions between the [state actor] and the plaintiff.’” Id. (quoting Pinder, 54 F.3d at
1176 n.*). It is clear that a City or BFD official sending Plaintiff Firefighters inside the Property
to combat the fire on January 24, 2022, with knowledge of the Property’s history and status would
constitute an affirmative act directed toward Plaintiff Firefighters. But several of the other
“affirmative acts” ascribed to the City in the Complaint are actually omissions or acts that do not
involve any “immediate interactions” between a City or BFD official and Plaintiff Firefighters that
created or increased any danger to the firefighters. Id. The Complaint leaves entirely unclear, for
example, whether any of the Plaintiff Firefighters received the January 2012 email falsely
portraying that the Code X-Ray program remained in force.3
But even if all the foregoing acts attributed to the City constituted “affirmative acts” for
purposes of a state-created danger claim, Plaintiffs do not allege any facts to support a reasonable
3 In an affidavit attached to the Complaint, plaintiff John McMaster states that he joined BFD in
September 2015, more than four years after the email was sent, ECF 7-1, and the Complaint does not state
when the other Plaintiff Firefighters joined BFD.
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inference that any City or BFD official, at any point, acted “with the purpose of” harming Plaintiff
Firefighters. Slaughter, 682 F.3d at 319. Plaintiffs allege in broad terms that the City acted “with
the intent to injure” or “harm” Plaintiff Firefighters, Compl. at 3, but they offer no facts to support
these 	conclusory 	and 	formulaic 	allegations. 	Such 	“naked 	assertions” 	lacking 	“factual
enhancement” are plainly inadequate to sustain Plaintiffs’ claim. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557).4
As the Court explained in Butrim I:
The only plausible purpose for sending Plaintiff Firefighters into the
Property supported by the facts in the Complaint was to fight the fire
that engulfed the building. The only facts offered that speak to the
City’s motivations in failing to mark the Property as structurally
compromised concern the City’s agreement with the Southwest
Partnership, a nonprofit community organization. . . . .Plaintiffs
allege . . . that this agreement caused the City to avoid marking
certain compromised properties because the markings would make
them unattractive to potential investors. . . . Accepting these
allegations as true—and accepting that they may describe wrongful
or even egregious conduct by Defendant—the Court does not find
that the allegations support a reasonable inference that Defendant
acted with the purpose of causing harm to Plaintiff Firefighters. See
Slaughter, 682 F.3d at 323 (finding no constitutional liability for a
state-created danger where facts in the complaint did not support the
conclusion that the fire department “intended to harm” employees);
Cunningham, 665 F. Supp. 3d at 737 (dismissing state-created
danger claim where plaintiffs’ allegations describe “negligent, or
even egregious, conduct by the City Defendants” but “do not show
that the City Defendants intended to harm [decedent]”). Therefore,
4 Plaintiffs’ reference to “the natural and logical consequences” of the City’s deliberate acts, Compl.
at 4, cannot sustain their bare assertion of the City’s intent to injure Plaintiff Firefighters and falls short of
alleging that the City acted with the purpose of causing harm. See Slaughter, 682 F.3d at 319 (complaint
“f[ell] short of alleging a substantive due process violation” because it “d[id] not . . . allege that the Fire
Department staged the live burn training exercise with the purpose of causing harm to Wilson or to any
other recruit”); Cunningham, 665 F. Supp. 3d at 737 n.3 (rejecting plaintiffs’ argument that “the City
Defendants’ intent to harm Ms. Cunningham can be measured by the natural and probable consequences of
their actions”).
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19
the Complaint fails to state a plausible claim under § 1983 for a
state-created danger in violation of the Due Process Clause.
2024 WL 5055196, at *8.
Notably, in their opposition, Plaintiffs do not argue that they adequately alleged any City
or BFD official’s intent to harm Plaintiff Firefighters; they argue instead that Slaughter’s intent-
to-harm standard does not apply to this case and, in any event, Slaughter was wrongly decided.
See ECF No. 16 at 9–15. The latter point is a non-starter. The majority decision in Slaughter
remains good law in this Circuit and is binding on this Court. In that case, the Fourth Circuit
applied Supreme Court precedent in specifically rejecting the argument Plaintiffs press here: that
deliberate indifference by a governmental entity toward its employees can amount to arbitrary or
conscious-shocking conduct in violation of substantive due process. See Slaughter, 682 F.3d at
321–22 (citing Collins, 503 U.S. at 128).
Plaintiffs argue that a standard less than intent to harm applies to this case on account of
the City’s allegedly deceptive conduct, which, Plaintiffs contend, fraudulently induced Plaintiff
Firefighters into an employment relationship5 and effectively removes this case from the
“voluntary employment context” governed by Slaughter, 682 F.3d at 322. ECF No. 16 at 1–4, 10–
13. Specifically, Plaintiffs allege that the City intentionally misrepresented that Code X-Ray was
still in effect after the program’s discontinuation, which misled Plaintiff Firefighters about a
5 The elements of fraudulent inducement are as follows:
(1) a material representation of a party was false; (2) falsity was known to
that 	party or the misrepresentation was 	made with such reckless
indifference to the truth as to impute knowledge to him; (3) the
misrepresentation was made with the purpose to defraud (scienter); (4) the
person justifiably relied on the misrepresentation; and (5) the person
suffered damage directly resulting from the misrepresentation.
Airport Square Holdings, LLC v. GCCFC 2007-GG9 Colomary Facilities, LLC, Civ. No. JFM-16-02883,
2017 WL 639230, at *6 (D. Md. Feb. 16, 2017) (citing Lawley v. Northam, Civ. No. ELH-10-1074, 2011
WL 6013279, at *9 (D. Md. Dec. 1, 2011)).
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material term of their employment and rendered their “exposure to enhanced life-threatening risks
unwitting rather than voluntary.” Id. at 4. Plaintiffs claim the City’s misrepresentation as to the
status of the Code X-Ray program makes this case “unique” and unlike Slaughter in that it
undermines the voluntariness of Plaintiff Firefighters’ employment. Id. at 10.
As explained in Butrim I, however, Federal Rule of Civil Procedure 9(b) requires plaintiffs
alleging fraud to state “with particularity the circumstances” constituting the fraud. “Rule 9(b)
applies . . . to all averments of fraud, whether they are part of a claim of fraud or not.” Lone Star
Ladies Inv. Club v. Schlotzsky’s Inc., 238 F.3d 363, 368 (5th Cir. 2001). Here, Plaintiffs allege
fraudulent inducement in support of their state-created danger claim. Therefore, the pleading
standard of Rule 9(b) applies to that allegation.
“The standard set forth by Rule 9(b) aims to provide defendants with fair notice of claims
against them and the factual ground upon which they are based, forestall frivolous suits, prevent
fraud actions in which all the facts are learned only following discovery, and protect defendants’
goodwill and reputation.” McCauley, 710 F.3d at 559 (citation omitted); see also Woodrow v.
Vericrest Fin., Inc., Civ. No. AW-09-1612, 2009 WL 4348594, at *5 (D. Md. Nov. 30, 2009).
“[I]f particular averments of fraud are insufficiently pled under Rule
9(b), a district court should ‘disregard’ those averments, or ‘strip’
them from the claim. The court should then examine the allegations
that remain to determine whether they state a claim.” Vess v. Ciba-
Geigy Corp. USA, 317 F.3d 1097, 1104–05 (9th Cir. 2003); see also
Appvion, Inc. Ret. Sav. & Emp. Stock Ownership Plan by & through
Lyon v. Buth, 99 F.4th 928, 945 (7th Cir. 2024) (“[I]f a court thinks
a plaintiff has failed to plead fraud, it must ‘disregard averments of
fraud not meeting Rule 9(b)’s standard and then ask whether a claim
has been stated.’”) (quoting Lone Star Ladies Inv. Club, 238 F.3d at
368[)].
Butrim I, 2024 WL 5055196, at *8.
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21
Accordingly, Plaintiffs’ allegations that the City misrepresented the status of the Code X-
Ray program and engaged in other forms of deception toward Plaintiff Firefighters require
pleading with particularity “the time, place, and contents of the false representations.” McCauley,
710 F.3d at 559. See also Strum v. Exxon Co., U.S.A., a Div. of Exxon Corp., 15 F.3d 327, 331 (4th
Cir. 1994) (affirming dismissal of fraudulent inducement claim for failure to plead with
particularity); Campbell v. Indymac Bank, FSB, Civ. No. CCB-09-3182, 2010 WL 419387, at *3
(D. Md. Jan. 29, 2010) (citing Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783–
84 (4th Cir.1999)) (“[A]s intentional misrepresentation is a claim based in fraud, it is subject to
the heightened pleading requirements of Federal Rule of Civil Procedure 9(b).”).
The closest Plaintiffs come to alleging the City’s fraud with particularity is by reference to
the affidavit of plaintiff John McMaster, dated January 21, 2025, which is attached as an exhibit
to the Complaint. ECF No. 7-1; see also Compl. at 4. In that affidavit, McMaster affirms that he
was employed with BFD as a firefighter between 2015 and 2022 and, during that period of
employment, “[t]he City maintained at all relevant times that the Code X-Ray program was in full
effect.” ECF No. 7-1. McMaster further affirms the following:
[T]he City repeatedly assured [firefighters] that it created a program
called Code X-Ray, under which the City would conspicuously
mark any structurally compromised buildings in the Mount Clare
neighborhood to ensure that we would not enter inside unknowingly
and be exposed to the near-certain risk of injury or death from a
collapse. The City further assured [firefighters] that it would catalog
and store these properties in the CAD system as a failsafe to ensure
that even if a property was not marked, [firefighters] would know
not to enter.
Id. ¶ 4. The statements in McMaster’s January 2025 affidavit fall short of the particularity required
by Rule 9(b). The affidavit leaves unclear the circumstances in which the City’s allegedly false
assurances were conveyed to McMaster or any other firefighter, such as the place or approximate
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point in time in which the statements were made and the person who made them.6, 7 See McCauley,
710 F.3d at 559.
Plaintiffs’ reliance upon the decision of the U.S. District Court for the District of Columbia
in Briscoe v. Potter, 355 F. Supp. 2d 30 (D.D.C. 2004), is unavailing. In Briscoe, postal employees
brought an action against specific United States Postal Service (“USPS”) officials pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The
plaintiff postal workers alleged procedural and substantive due process violations, including a
6 I note that Plaintiffs attach a second affidavit from McMaster to their opposition (dated May 12,
2025) that includes some of these details, ECF 16-3, along with affidavits from two other former BFD
employees that provide detail about the City’s alleged misrepresentations, ECF 16-1 & 16-2. The Court
declines to consider these affidavits in assessing the sufficiency of the Complaint on a Rule 12(b)(6) motion
to dismiss. It is well established that a court may consider materials attached to a complaint or incorporated
into a complaint by reference, like McMaster’s first affidavit. See Goines v. Valley Cmty. Servs. Bd., 822
F.3d 159, 165–66 (4th Cir. 2016). But is equally clear that a plaintiff cannot seek to amend his pleading
through materials submitted in opposition to a motion to dismiss. See S. Walk at Broadlands Homeowner’s
Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184–85 (4th Cir. 2013) (citation omitted);
Lindsey-Grobes v. United Airlines, Inc., Civ. No. GJH-14-00857, 2014 WL 5298030, at *5 (D. Md. Oct.
14, 2014) (citing cases). Because McMaster’s second affidavit and the several other affidavits attached to
Plaintiffs’ opposition are neither attached to, nor referenced in, the Complaint, I decline to consider them.
However, Plaintiffs shall have an opportunity to file a motion for leave to amend their pleading, which will
give them an opportunity attach any additional materials they deem necessary to state their claims.
7 Plaintiffs argue that they need not identify individual government actors involved in the alleged
fraudulent conduct because the City is a “corporate defendant.” ECF No. 16 at 18 (citing Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 790–92 (4th Cir. 1999); see also Mayor of Balt. v. Unisys
Corp., Civ. No. 12-614-JKB, 2012 WL 3561850, at *6 (D. Md. Aug. 16, 2012) (citing cases) (“Courts in
this Circuit have previously found . . . that where a misrepresentation is attributed to a corporate defendant,
the Plaintiff does not necessarily have to identify the individual agent who made the alleged false
statement.”). But, here, Plaintiffs’ Monell claim against the City as a “municipal corporation” relies upon
constitutional violations by individual municipal officials or employees. See Giancola v. State of W.Va.
Dep’t of Pub. Safety, 830 F.2d 547, 550 (4th Cir. 1987) (citing Monell, 436 U.S. at 690–92) (“[T]o establish
liability on behalf of the entity, it must be shown that the actions of the officers were unconstitutional and
were taken pursuant to a custom or policy of the entity.”); Grayson v. Peed, 195 F.3d 692, 697 (4th Cir.
1999), abrogated on other grounds by Short v. Hartman, 87 F.4th 593 (4th Cir. 2023) (citing City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986)) (“As there are no underlying constitutional violations by any
individual, there can be no municipal liability.”); Anderson v. Caldwell Cnty. Sheriff’s Off., 524 F. App’x
854, 862 (4th Cir. 2013) (citing Heller and Giancola) (“No actionable claim against supervisors or local
governments can exist without a constitutional violation committed by an employee.”). If a constitutional
violation by a municipal official was effected through fraud and deception, I find that the pleading
requirements of Rule 9(b) require Plaintiffs to identify the individual officials who made the allegedly false
representations, whether by name or by description. Plaintiffs fail to do that in their Complaint.
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claim that “misleading and/or false information” conveyed by the defendant USPS officials
deprived the plaintiffs of their “substantive due process liberty interest in a safe work environment
free from needless danger.” 355 F. Supp. 2d at 37 (citation omitted). The plaintiffs further alleged
that the defendants “engaged in a campaign of misinformation designed to keep . . . employees at
work” despite being put on notice that the facility where the plaintiffs worked “was contaminated
with anthrax.” Id. at 31, 46 (citation omitted). Though the court ultimately dismissed plaintiffs’
substantive due process claim under the qualified immunity doctrine, it “f[ound] that [p]laintiffs
ha[d] sufficiently alleged that [d]efendants’ conduct amounted to deliberate indifference, which
violated their substantive due-process rights under the [s]tate [e]ndangerment theory.” Id. at 46.
However, in stark contrast with the Complaint in the instant case, the complaint in Briscoe
went into detail about specific misrepresentations made by specific USPS officials to the plaintiff
employees and to the general public on specific dates. Id. at 33–36.8 In addition, unlike Plaintiffs
here, the Briscoe plaintiffs alleged that they were “threaten[ed], intimidat[ed], and/or coerc[ed]”
to continue working under unsafe conditions, id. at 46, and their complaint outlined the defendants’
threats and intimidation in detail, see id. at 33–36. Moreover, the Briscoe court found that the
plaintiffs were “not seeking . . . redress based on defendants’ failure to protect them from a hazard
that was ‘inherent’ in their occupation,” noting that “potential exposure to anthrax is not a danger
that one would reasonably anticipate when accepting employment at a post office.” Id. at 46–47.
In contrast, the danger at issue here—the collapse of a vacant building during a fire—was a hazard
at least arguably inherent to Plaintiff Firefighters’ occupation and could be reasonably anticipated
8 Plaintiffs point out that Federal Rule of Civil Procedure 9 was not raised or mentioned in Briscoe
and argue that “in a § 1983 action, a municipal employee plaintiff satisfies Rule 8(a) by alleging an
intentional misrepresentation that forms the basis for the constitutional violation.” ECF No. 16 at 11. I
disagree. There is a likelihood that the pleading requirements of Rule 9(b) were not addressed in Briscoe
because the complaint in that case clearly satisfied them.
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when they accepted and maintained employment with BFD. See Martinez v. Fed. Home Loan
Mortg. Corp., 943 F. Supp. 280, 284 (S.D.N.Y. 1996) (“[T]he weakening and the collapse of a
burning structure are particular risks which firefighters assume as part of their profession.”).
Finally, unlike this Court, the Briscoe court was not bound by Fourth Circuit precedent, and the
Fourth Circuit’s decision in Slaughter had not issued at the time of the Briscoe decision.
Plaintiffs also liken the instant case to Washington v. Housing Authority of the City of
Columbia, a Fourth Circuit case wherein the personal representative of the estate of a deceased
tenant sued a municipal housing authority under § 1983 for violating the tenant’s substantive due
process rights by failing to regularly inspect or install carbon monoxide detectors in its property.
58 F.4th at 175–76. The Fourth Circuit held that the deliberate indifference standard is correctly
applied when officials have had “time to ‘reflect on [their] actions’” such that “actual deliberation
is practical.” Id. at 178 (quoting Dean, 976 F.3d at 415). In Washington, the plaintiff sufficiently
alleged that the defendant acted with deliberate indifference, “thereby violating [the deceased
tenant’s] substantive-due-process rights.” Id. at 182. Critically, however, the tenant’s relationship
with the housing authority was not the “voluntary employment relationship” controlled by the
Fourth Circuit’s holding in Slaughter, 682 F.3d at 322. See also Waybright, 528 F.3d at 206 (citing
Collins, 503 U.S. 115) (concluding that the Supreme Court in Collins “necessarily rejected the
time to deliberate theory” when declining to apply the deliberate indifference standard in the
context of government employment). Slaughter is the controlling authority here—not Washington.
In sum, I find that the Complaint does not contain enough facts to support any plausible
claim against the City for state-created danger in violation of the Due Process Clause. “Ultimately,
the applicable standard of culpability for a substantive-due-process claim—either ‘intent to harm’
or ‘deliberate indifference’—depends on ‘an exact analysis of [the] context and circumstances’ of
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the case.” Washington, 58 F.4th at 178 (quoting Dean, 976 F.3d at 414). And the state-created
danger doctrine is a “narrowly drawn” doctrine, Turner, 930 F.3d at 645, particularly in the
employment context, see Slaughter, 682 F.3d at 322. Plaintiffs do not allege that Plaintiff
Firefighters were coerced into employment with the City, that they were threatened into
maintaining employment as firefighters, or that they were subjected to confinement by the City.
See Slaughter, 682 F.3d at 322 (quoting Waybright, 528 F.3d at 207) (noting that, in Waybright,
plaintiff fire department recruit “was not in government custody, but could ‘walk away’ from . . .
the job”). Plaintiffs allege that the City lied to Plaintiff Firefighters and fraudulently induced them
into an employment relationship, but they fail to state the circumstances of the City’s deceptive
statements and fraudulent inducement with the particularity required by Rule 9(b). “[W]ithout the
factual enhancement necessary to sustain the allegation that Defendant lied to Plaintiff Firefighters,
the Court cannot determine whether this case presents ‘special circumstances’ to support a finding
that Defendant’s intermediate level of culpability has ‘constitutional implications[.]’” Butrim I,
2024 WL 5055196, at *8 n.3 (quoting Waybright, 528 F.3d at 205). Setting aside Plaintiffs’
unsupported 	claim that Plaintiff Firefighters were fraudulently induced 	into employment,
“Slaughter’s intent-to-harm standard clearly applies to Plaintiffs’ state-created danger claim.” Id.
at *8. And because, as explained supra, Plaintiffs fail to allege facts to support a reasonable
inference that the City intended to injure Plaintiff Firefighters or acted “with the purpose of causing
harm” to them, Slaughter, 682 F.3d at 319, 323, they fail to state a plausible claim for state-created
danger in violation of the Due Process Clause. Without a plausible constitutional violation by any
City official or employee, Plaintiffs’ Monell claim cannot survive Defendant’s Motion to Dismiss.
See Giancola, 830 F.2d at 550 (4th Cir. 1987) (citing Monell, 436 U.S. at 690–92) (“[T]o establish
liability on behalf of the entity, it must be shown that the actions of the officers were
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26
unconstitutional and were taken pursuant to a custom or policy of the entity.”); Anderson, 524 F.
App’x at 862 (citing Heller and Giancola); Johnson v. Balt. Police Dep’t, 500 F. Supp. 3d 454,
459–60 (D. Md. 2020) (quoting Young v. City of Mount Ranier, 238 F.3d 567, 579 (4th Cir. 2001))
(“[A] Monell claim cannot lie ‘where there is no underlying constitutional violation by the
employee.’”).
B. State-Law Claims
Counts Two through Four of the Complaint assert claims against the City under state law.
Count Two is a negligence claim against the City by McMaster, and Counts Three and Four are
survival and wrongful death claims by the Estates of Butrim, Sadler, and Lacayo. Defendant argues
that these claims are barred by Maryland’s workers’ compensation statute, the WCA.
The WCA “protect[s] workers and their families from hardships inflicted by accidental
work-related injuries and occupational diseases.” Matter of Collins, 228 A.3d 760, 767 (Md. 2020)
(citation omitted); see also Md. Code Ann., Lab. & Empl. §§ 9-101 et seq. Under the Act, “an
employer is generally required to pay workers’ compensation benefits to an employee who suffers
an accidental personal injury in the course of employment, regardless of whether the employer is
at fault for the injury.” Buitron v. Tractor Supply Co., 723 F. Supp. 3d 428, 432 (D. Md. 2024)
(quoting Ledford v. Jenway Contracting, Inc., 305 A.3d 498, 503 (Md. App. 2023), aff’d, 338 A.3d
563, 583 (Md. 2025)). The WCA also requires employers to compensate dependents of employees
covered by the Act where those employees’ deaths were the result of an accidental personal injury
sustained “in the course of employment.” Morris v. Bd. of Educ. of Prince George’s Cnty., 663
A.2d 578, 580 (Md. 1995) (quoting Md. Code Ann., Lab. & Empl. §§ 9-101(b)(1), 9-501(a)).
Importantly, “[c]ompensation awarded on this fault-free basis under the statutory plan
substitutes for an employee’s common law right to bring a fault-based tort suit against an employer
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for damages resulting from the employee’s injury or disablement on the job.” Matter of Collins,
228 A.3d at 767–68 (quoting DeBusk v. Johns Hopkins Hosp., 677 A.2d 73, 75 (Md. 1996)); see
also Md. Code Ann., Lab. & Empl. § 9-509(a) (“Except as otherwise provided in this title, the
liability of an employer under this title is exclusive.”); id. § 9-509(b) (“Except as otherwise
provided in this title, the compensation provided under this title to a covered employee or the
dependents of a covered employee is in place of any right of action against any person.”). This rule
of exclusivity serves to “protect employers from the unpredictable nature and expense of litigation,
and the public from the overwhelming tax burden of ‘caring for the helpless human wreckage
found [along] the trail of modern industry.’” Polomski v. Mayor of Balt., 684 A.2d 1338, 1341
(Md. 1996) (citations omitted). “Compensation under the WCA is an employee’s [or dependent’s]
exclusive remedy unless the injury is shown to be the result of ‘the deliberate intent of the employer
to injure or kill the covered employee.’” Tynes v. Shoney’s Inc., 867 F. Supp. 330, 332 (D. Md.
1994) (emphasis added) (quoting Md. Code Ann., Lab. & Empl. § 9-509(d)). In other words, a
plaintiff’s “complaint must be based upon allegations of an intentional or deliberate act by the
employer with a desire to bring about the consequences of the act.” Johnson v. Mountaire Farms
of Delmarva, Inc., 503 A.2d 708, 712 (Md. 1986). If such is shown, the employee or their
dependents may “file [a] claim under the WCA or bring a common law tort action for damages.”
Id.
Plaintiffs’ negligence and survival claims under Maryland law are plainly proscribed by
the WCA. As explained in Part III.A supra, the Complaint falls short of alleging any “deliberate
intent of the employer to injure or kill” Plaintiff Firefighters. Md. Code Ann., Lab. & Empl. § 9-
509(d). Therefore, compensation through the WCA provides Plaintiff Firefighters and their
dependents an exclusive remedy “in place of any right of action against” the employer, Md. Code
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Ann., Lab. & Empl. § 9-509(b), and the employer’s liability under the WCA is “exclusive[,]” id.
§ 9-509(a).
Plaintiffs cite no authority to support their argument that the WCA only bars suits by
“covered employees” and their dependents, and does not bar wrongful death suits by non-
dependents. The Supreme Court of Maryland has rejected this argument, holding as recently as
last year that “the exclusivity provision protects compliant employers from outside liability for a
covered employee’s injury or death, regardless of the identity of the party bringing suit.” Ledford
v. Jenway Contracting, Inc., 338 A.3d 563, 583 (Md. 2025); see also Ledford, 305 A.3d at 508
(finding that “the [General Assembly] did not intend to limit the Act’s exclusivity provision to
covered employees and their dependents,” and that “the Act was exclusive to dependents and non-
dependents alike.”). Accordingly, in Ledford, the exclusivity rule “foreclose[d] a wrongful death
action from a non-dependent child of a deceased covered employee.” 338 A.3d at 583.
In the same case, the court also rejected Plaintiffs’ argument that allowing the WCA’s
exclusivity provision to bar wrongful death claims of non-dependent adults violates Article 19 of
the Maryland Declaration of Rights. The plaintiff in Ledford likewise argued that allowing the
Act’s exclusivity provision to bar her wrongful death claim “would deny an entire class of persons
access to the courts, and [a] remedy for [an] injury, as guaranteed by [Article 19.]” Id. at 570
(internal quotation marks omitted). Article 19 provides “[t]hat every [person], for any injury done
to [them] in [their] person or property, ought to have remedy by the course of the Law of the Land,
and ought to have justice and right, freely without sale, fully without any denial, and speedily
without delay, according to the Law of the Land.” Md. Const. Declaration of Rts., art. 19. The
Supreme Court of Maryland “has interpreted Article 19 as protecting ‘two interrelated rights: (1)
a right to a remedy for an injury to one’s person or property; [and] (2) a right of access to the
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courts.’” Ledford, 338 A.3d at 583–84 (quoting Piselli v. 75th St. Med., 808 A.2d 508, 518 (Md.
2002)). Though “Article 19 ‘generally prohibits unreasonable restrictions upon . . . traditional
remedies or . . . access to the courts,’” the Maryland General Assembly is still allowed, “pursuant
to its authority to change the common law or statutory provisions, to enact reasonable restrictions
upon traditional remedies or access to the courts.” Id. at 584 (quoting Piselli, 808 A.2d at 518).
After surveying the history of the WCA and noting that “non-dependent children in
Maryland have never enjoyed the right to sue their parent’s employer for damages arising from a
workplace accident resulting in death,” the Ledford court held that the plaintiff’s desired remedy
was “not a traditional remedy” in Maryland and therefore “[wa]s not protected by Article 19.” Id.
at 586 (citing Piselli, 808 A.2d at 519). Plaintiffs acknowledge that at the time of the adoption of
the WCA, “parents of adult children did not have the right to sue for wrongful death,” and, in 1999,
the right was only extended to non-dependent adult children. ECF No. 16 at 27–28. As such, the
remedy sought by non-dependent Plaintiffs Butrim, Lacayo, and Norman is not a “traditional
remedy” protected by Article 19. Given that this remedy was not available to parents and children
before the adoption of the Act, it is implausible that such a remedy would have been available to
siblings. Plaintiffs do not cite any Maryland case to support the proposition that a wrongful death
action against their child’s or sibling’s employer for their relatives’ work-related deaths is a
“traditional remedy” in Maryland or is otherwise protected by Article 19. “Moreover, it would be
unreasonable to subject compliant employers to suit from non-dependent relatives of deceased
covered employees when the employers have otherwise been assured that their liability is limited
to the confines of the Act.” 	Id. at 587. Because the exclusivity clause was designed to prevent
“double recovery,” allowing non-dependent Plaintiffs to pursue their wrongful death claims
“would render [compliant employers’] immunity effectively meaningless . . . , which, in addition
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to being unreasonable, . . . would undermine the fundamental framework of the Act.” Id. at 578–
79, 587.
Accordingly, Plaintiffs’ claims under Maryland law must be dismissed.
IV. 	CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss will be GRANTED. The
Complaint shall be dismissed without prejudice.
A separate Order will follow.
2/20/26 	/S/
Date 	Matthew J. Maddox
United States District Judge
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