                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-23-1999

Doby v. DeCrescenzo
Precedential or Non-Precedential:

Docket 98-1124




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Recommended Citation
"Doby v. DeCrescenzo" (1999). 1999 Decisions. Paper 74.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/74


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Filed March 22, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-1124 and 98-1224

REBECCA S. DOBY; HERBERT K. DOBY,
       Appellants in No. 98-1124

v.

JAMES DECRESCENZO; BUCKS COUNTY DEPARTMENT
OF MENTAL HEALTH AND MENTAL RETARDATION;
PHILLIP M. FENSTER, COUNTY ADMINISTRATOR, BUCKS
COUNTY DEPARTMENT OF MENTAL HEALTH AND
MENTAL RETARDATION, in his official capacity; AMY
BRYANT, individually and in her official capacity as
Delegate for the County Administrator of the Bucks
County Department of Mental Health/Mental Retardation
Lenape Valley Foundation; DEBBIE NEIDHARDT,
individually and in her official capacity as Delegate for the
County Administrator of the Bucks County Department of
Mental Health and Mental Retardation; TOWNSHIP OF
WARRINGTON; WARRINGTON TOWNSHIP POLICE
DEPARTMENT; JOHN BONARGO, CHIEF OF POLICE,
WARRINGTON TOWNSHIP POLICE DEPARTMENT, in his
official capacity; JOHN DOE, POLICE OFFICER #1, Officer
who, with police officer #2, asked Mrs. Doby to step
outside apartment at approximately 7:00 p.m. and took
Mrs. Doby in handcuffs and shackles to the hospital,
individually and in his official capacity as police officer of
Warrington Township; JOHN DOE, POLICE OFFICER #2,
Officer who, with police officer #1, asked Mrs. Doby to
step outside apartment at approximately 7:00 p.m. and
took Mrs. Doby in handcuffs and shackles to the hospital,
individually and in his official capacity as police officer of
Warrington Township; JOHN DOE, POLICE OFFICER #3,
Officer who came to the Dobys' apartment at
approximately 7:00 p.m. on December 30, 1993, and
remained at their apartment after Mrs. Doby was taken to
the hospital, individually and in his official capacity as
police officer of Warrington Township; LENAPE VALLEY
FOUNDATION; JOHN C. RICHARDS, M.D.; DOYLESTOWN
HOSPITAL; JOSEPH KNOX, SERGEANT, of the Warrington
Township Police Department, in his official and individual
capacity; MICHAEL NEIPP, OFFICER, of the Warrington
Township Police Department, in his official and individual
capacity; KENNETH HAWTHORN, OFFICER, of the
Warrington Township Police Department, in his official
and individual capacity

REBECCA S. DOBY;

HERBERT K. DOBY,
       Appellants in No. 98-1224

v.

JAMES DECRESCENZO; BUCKS COUNTY DEPARTMENT
OF MENTAL HEALTH AND MENTAL RETARDATION;
PHILLIP M. FENSTER, COUNTY ADMINISTRATOR, BUCKS
COUNTY DEPARTMENT OF MENTAL HEALTH AND
MENTAL RETARDATION, in his official capacity; AMY
BRYANT, individually and in her official capacity as
Delegate for the County Administrator of the Bucks
County Department of Mental Health/Mental Retardation
Lenape Valley Foundation; DEBBIE NEIDHARDT,
individually and in her official capacity as Delegate for the
County Administrator of the Bucks County Department of
Mental Health and Mental Retardation; TOWNSHIP OF
WARRINGTON; WARRINGTON TOWNSHIP POLICE
DEPARTMENT; JOHN BONARGO, CHIEF OF POLICE,
WARRINGTON TOWNSHIP POLICE DEPARTMENT, in his
official capacity; JOHN DOE, POLICE OFFICER #1, Officer
who, with police officer #2, asked Mrs. Doby to step
outside apartment at approximately 7:00 p.m. and took
Mrs. Doby in handcuffs and shackles to the hospital,
individually and in his official capacity as police officer of
Warrington Township; JOHN DOE, POLICE OFFICER #2,
Officer who, with police officer #1, asked Mrs. Doby to
step outside apartment at approximately 7:00 p.m. and
took Mrs. Doby in handcuffs and shackles to the hospital,
individually and in his official capacity as police officer of
Warrington Township; JOHN DOE, POLICE OFFICER #3,

                                2
Officer who came to the Dobys' apartment at
approximately 7:00 p.m. on December 30, 1993, and
remained at their apartment after Mrs. Doby was taken to
the hospital, individually and in his official capacity as
police officer of Warrington Township; LENAPE VALLEY
FOUNDATION; JOHN C. RICHARDS, M.D.; DOYLESTOWN
HOSPITAL; JOSEPH KNOX, SERGEANT, of the Warrington
Township Police Department, in his official and individual
capacity; MICHAEL NEIPP, OFFICER, of the Warrington
Township Police Department, in his official and individual
capacity; KENNETH HAWTHORN, OFFICER, of the
Warrington Township Police Department, in his official
and individual capacity

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 94-03991)
District Judge: Honorable John P. Fullam

Argued February 16, 1999

BEFORE: GREENBERG, ROTH, and LOURIE,*
Circuit Judges

(Opinion filed: March 22, 1999)

       Timothy I. McCann (argued)
       Linda A. Carpenter
       McCann & Geschke
       1819 John F. Kennedy Boulevard
       Suite 330
       Philadelphia, PA 19103

        Attorneys for appellants
_________________________________________________________________

* Honorable Alan D. Lourie, Circuit Judge of the United States Court
of Appeals for the Federal Circuit, sitting by designation.

                                  3
Joseph Goldberg (argued)
Peggy B. Greenfeld
Tracy A. Walsh
Margolis Edelstein
Sixth and Walnut Streets
The Curtis Center, 4th Floor
Philadelphia, PA 19106

Attorneys for appellee James
Decrescenzo

Sean X. Kelly (argued)
Marks, O'Neill, Reilly, O'Brien
 & Courtney
216 Haddon Avenue
Suite 500
Westmont, NJ 08108

Attorneys for appellees Bucks
County Department of Mental
Health and Mental Retardation,
Phillip M. Fenster, County
Administrator, Bucks County
Department of Mental Health And
Mental Retardation, in his official
capacity and Debbie Neidhardt,
individually and in her official
capacity as Delegate for the
County Administrator of the Bucks
County Department of Mental
Health and Mental Retardation and
Township of Warrington

                        4
Barbara S. Magen (argued)
Donald N. Camhi
Amalia V. Romanowicz
Post & Schell
1800 JFK Boulevard
19th Floor
Philadelphia, PA 19103

Attorneys for appellees Amy
Bryant, individually and in her
official capacity as Delegate for the
County Administrator of the Bucks
County Department of Mental
Health/Mental Retardation Lenape
Valley Foundation and Lenape
Valley Foundation

L. Rostaing Tharaud (argued)
Marshall, Dennehey, Warner,
Coleman & Goggin
1845 Walnut Street
Philadelphia, PA 19103

Attorneys for appellees Warrington
Township Police Department, John
Bonargo, Chief of Police,
Warrington Township Police
Department, in his official capacity,
Joseph Knox, Sergeant, Warrington
Township Police Department, in his
official and individual capacity,
Michael Neipp, Officer, of the
Warrington Township Police
Department, in his official and
individual capacity, and Kenneth
Hawthorn, Officer, Warrington
Township Police Department, in his
official and individual capacity

                        5
       Alan S. Gold (argued)
       Monaghan & Gold
       7837 Old York Road
       Elkins Park, PA 19027

       Attorneys for appellee John C.
       Richards, M.D.

       Marion H. Griffin (argued)
       Marshall, Dennehey, Warner,
       Coleman & Goggin
       1845 Walnut Street
       Philadelphia, PA 19103

       Attorneys for appellee Doylestown
       Hospital

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Believing that his employee Rebecca Doby was suicidal,
James DeCrescenzo filed a petition with the Bucks County
Department of Mental Health to have her examined
involuntarily under section 7302 of the Pennsylvania
Mental Health Procedures Act. The appropriate county
official granted the petition and issued a warrant
instructing the local police to bring Doby to a nearby
hospital for a psychiatric evaluation; this evaluation led to
her involuntary five-day commitment. Claiming that her
federal rights to due process and freedom from
unreasonable searches and seizures had been violated,
Doby and her husband, Herbert Doby, brought suit under
42 U.S.C. S 1983 against the individuals involved in her
commitment, including DeCrescenzo, the county, certain of
its officials, the police officers who executed the warrant,
and an evaluating doctor. The district court dismissed
portions of the Dobys' case, entered judgment as a matter
of law for the defendants before or at the trial on other
claims, and subsequently denied the Dobys' post-trial

                               6
motions for a new trial and for other relief. The Dobys
appeal, arguing primarily that Bucks County relies upon an
unconstitutional policy in processing petitions for
involuntary examinations. After evaluation of the many
issues involved in this case we have concluded that the
county's policy in enforcing the Mental Health Procedures
Act is constitutional, and that there is no other reason to
reverse the orders or judgments on appeal. Consequently,
we will affirm.

II. JURISDICTION

The district court had jurisdiction over the Dobys' section
1983 claims under 28 U.S.C. SS 1331 and 1343 and
supplemental jurisdiction over their related state law claims
under 28 U.S.C. S 1367. Because the Dobys appeal from
final orders of the district court, we have jurisdiction under
28 U.S.C. S 1291.

III. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

The chain of events at the center of this appeal
commenced when Doby handed a letter to DeCrescenzo on
December 22, 1993. At the time, Doby had worked for
DeCrescenzo's court reporting agency for two years. She
alleges that during her employment her relationship with
DeCrescenzo had become intimate and included several
instances of sexual contact but not sexual intercourse.
DeCrescenzo denies that his relationship with Doby
extended beyond friendship.

The letter in question was lengthy, 11 pages in total, and
personal. It referred to abuse suffered by Doby during her
childhood and described sexual conduct in which Doby
wished to engage with DeCrescenzo. At the letter's
conclusion, Doby also wrote that she had accomplished
what she was intended to do in this lifetime and was
"leaving." Alarmed by the letter's contents, DeCrescenzo
consulted with his wife, his marriage counselor, and his
attorney. Dr. Linda Edelstein, his marriage counselor,
advised him that the letter's author was in psychiatric

                                7
distress, potentially suicidal, and needed the immediate
assistance of mental health professionals. On her advice,
DeCrescenzo spoke with personnel of the Philadelphia
mental health office who suggested that they could send a
mobile emergency crisis team to meet with Doby. Without
consulting Doby, DeCrescenzo arranged for the crisis team
to come to his office on December 30, 1993.

However, on December 30, Doby left the office before the
mobile emergency crisis team arrived. From her car phone,
she placed a call to a co-worker, Kathy McHugh, to advise
her that she would not attend McHugh's New Year's Eve
party. Doby was upset and crying, indicated that she was
driving in the rain, and would not tell McHugh where she
was going. McHugh reported this conversation to
DeCrescenzo who then called Doby to ask her to return to
the office. Doby refused and indicated that she did not want
to speak to him.

DeCrescenzo then called the Philadelphia mental health
office and the Warrington Township police. At the
suggestion of the mental health office, he also contacted
Herbert Doby and read to him several phrases from Doby's
letter. Concerned for his wife, Herbert Doby called her on
the car phone but their conversation convinced him that
nothing was wrong. Doby then phoned DeCrescenzo to
assure him that she was not in danger.

Unsure of what to do next, DeCrescenzo again phoned
the Warrington Township Police Department. At their
suggestion, DeCrescenzo asked his wife and Kathy McHugh
to search Doby's work area for other indications of her
mental state. This search revealed a suicide note Doby
authored, which begins "If you are receiving this letter it is
because I am gone, and I seek your help for Herb and my
girls." The search also uncovered written reminders to
make arrangements for organ donation and the custody of
Doby's daughter and step-daughter. The defendants claim
that DeCrescenzo brought these writings when he later
applied for a warrant to have Doby involuntarily examined
on an emergency basis.

After discovering the suicide note, DeCrescenzo went to
the Doylestown Hospital to petition to have Doby

                                8
involuntarily examined according to the guidelines of the
Pennsylvania Mental Health Procedures Act ("MHPA"), Pa.
Stat. Ann. tit. 50, S 7101 et seq. (West Supp. 1998). During
his drive to the hospital, he received another call from
Herbert Doby informing him that Doby was fine.

Section 7302 of the MHPA permits the issuance of a
warrant for an involuntary emergency examination. It
states:

       Upon written application by a physician or other
       responsible party setting forth facts constituting
       reasonable grounds to believe a person is severely
       mentally disabled and in need of immediate treatment,
       the county administrator may issue a warrant
       requiring a person authorized by him, or any peace
       officer, to take such a person to the facility specified in
       the warrant.

Pa. Stat. Ann. tit. 50, S7302(a)(1). According to the statute
a person may be "severely mentally disabled" if he or she
"poses a clear and present danger of harm to others or to
[himself/herself.]" Pa. Stat. Ann. tit. 50,S7301(a). In turn,
clear and present danger is shown if "within the past 30
days . . . the person has made threats to commit suicide
and has committed acts which are in furtherance of the
threat to commit suicide." Pa. Stat. Ann. tit. 50
S7301(b)(2)(ii). The statute also provides that a physician
must examine a person brought in under a section 7302
warrant within two hours of her arrival at the facility. Pa.
Stat. Ann. tit. 50, S 7302(b). If the physician performing the
involuntary examination determines that the individual is
severely mentally disabled and in need of immediate
treatment, the individual may be involuntarily committed to
begin treatment for a period not to exceed 120 hours. The
period of commitment, however, may be extended in certain
circumstances. Pa. Stat. Ann. tit. 50 S 7302(b).

Upon reaching the hospital, DeCrescenzo met with Amy
Bryant, a crisis worker for Lenape Valley Foundation
("LVF"), which processes petitions for involuntary
examinations for Bucks County. In his discussion with
Bryant, DeCrescenzo presented her with an undated copy
of the 11-page letter and stated that he had found a suicide

                               9
note that day on Doby's desk. Bryant's recorded the
information provided by DeCrescenzo on the section 7302
application:

       I believe that Rebecca Doby is in need of emergency
       psychiatric care. Today I found an extensive suicide
       note on her desk, as well as lists of chores including
       transferences of information to her husband about
       access to bank accounts, insurance policy bills, a
       shared storage shed, and her current status with my
       company. She also has written a reminder to call about
       organ donations. Rebecca asked me as well to lock
       away a file for her with a note attached instructing me
       to destroy it if anything should happen to her. She also
       has begun letters to friends and relatives, with
       envelopes already addressed, asking either for
       forgiveness for pain she caused or including pleas for
       their help with the raising of her children. The return
       address is to a P.O. Box which only lists the names of
       her husband and children. In the past few weeks
       Rebecca has been drastically less efficient at work and
       often retires to a cot to sleep during working hours.
       She has access to guns and has a license to carry one
       herself; she also talks a great deal about guns. I truly
       fear for her safety.

DeCrescenzo did not recount the events of the day
specifically, nor did he relate the Dobys' repeated claims
that day that Doby was not in danger. After recording
DeCrescenzo's application, Bryant consulted by telephone
with Debbie Neidhardt of the Bucks County Department of
Mental Health and Mental Retardation. During this
conversation, Bryant read the section 7302 application to
Neidhardt and, as required by section 7102 of the MHPA,
inquired whether involuntary emergency treatment was the
least restrictive alternative available.1 After a 14-minute
discussion, Neidhardt authorized the issuance of a section
7302 warrant for Doby's examination.2 Bryant then signed
_________________________________________________________________

1. Section 7102 of the MHPA provides: "Treatment on a voluntary basis
shall be preferred to involuntary treatment; and in every case, the least
restrictions consistent with adequate treatment shall be employed." Pa.
Stat. Ann. tit. 50, S7102.

2. Although the Dobys argued that neither Bryant nor Neidhardt could
have seen the suicide note because it was not part of the hospital's file

                               10
the warrant on Neidhardt's behalf, and DeCrescenzo
delivered it to the Warrington Township Police Department.

Three police officers, Joseph Knox, Michael Neipp and
Kenneth Hawthorn, arrived at the Dobys' apartment at
approximately 7:00 p.m. to execute the warrant. After Doby
answered their knock, they asked her to step outside. The
parties disagree on whether the officers then explained to
her why they were taking her into custody.

After Doby refused to accompany the officers and
attempted to reenter the apartment to speak to her
husband, the officers "grabbed" her. When she began to
kick at the apartment door, they handcuffed her, and after
she continued to resist forcefully, they shackled her and
carried her to the police car. One officer, Hawthorn, stayed
behind to speak with Herbert Doby. After he left the
apartment, he entered the police car and drove Doby to
Doylestown Hospital.

At the hospital, Dr. John Richards examined Doby.
During the examination, they discussed the 11-page letter
and Doby's feelings towards DeCrescenzo. Doby admitted to
Dr. Richards that she had been depressed most of her life
but claimed that she functioned very well. She also told
him that she had been seeing a psychiatrist who had
prescribed Prozac to treat her depression, but that she
recently had stopped taking the medication. When Dr.
Richards asked Doby whether she needed help, she
admitted that she did but refused voluntary treatment. The
examination ended when Doby asked to phone her
husband and her psychiatrist and Dr. Richards agreed. Dr.
Richards involuntarily committed Doby for a period not to
exceed 120 hours.

On the following day, another physician, who is not a
defendant in this suit, examined Doby, concluded that she
was mentally disabled, and thus decided not to release her.
_________________________________________________________________

on Doby, the district court noted that Neidhardt's deposition testimony
contradicted this assertion. Neidhardt testified that she remembered
hearing specific provisions of the two-page note during her conversation
with Bryant.

                                11
On January 3, 1994, Doby signed voluntary commitment
papers on the understanding that doing so would lead to
her release on the following day. Doby was in fact released
on January 4, 1994.

Claiming that the involuntary commitment violated their
rights under federal and state law, the Dobys filed this
action in June 1994 against DeCrescenzo, the Lenape
Valley Foundation and Amy Bryant, the Bucks County
Department of Mental Health and Mental Retardation,
Philip M. Fenster, the county administrator, and Debbie
Neidhardt, the Township of Warrington, the Warrington
Township Police Department, Chief John Bonargo, Sergeant
Joseph Knox, Officer Michael Neipp, and Officer Kenneth
Hawthorn, Dr. John C. Richards, and Doylestown Hospital.

B. Procedural History

In their complaint, the Dobys alleged a violation of their
civil rights under section 1983, false arrest and
imprisonment, assault and battery, conspiracy, gross
negligence, intentional infliction of emotional distress, and
loss of consortium against all the defendants and sought a
declaratory judgment that section 7302(a)(1) is
unconstitutional. Additionally, they pled an invasion of
privacy claim against DeCrescenzo, the county defendants,
the foundation defendants, and the police defendants.
Finally, the Dobys alleged defamation and wrongful use of
civil proceedings against DeCrescenzo.

In an order of June 27, 1995, the district court, by Judge
Rendell, dismissed the section 1983 claim against Dr.
Richards and the conspiracy claims against all the
defendants. Then, following extensive discovery, the parties
cross-moved for summary judgment, and the district court,
again by Judge Rendell, addressed their claims in a
memorandum opinion and order dated September 9, 1996.
The court dismissed claims against the foundation
defendants, the county defendants, Doylestown Hospital,
and Dr. Richards. The court also denied the Dobys' motion
for summary judgment, which requested a ruling that the
municipal defendants and individual defendants sued in
their official capacity were liable as a matter of law under
section 1983 because the Dobys had shown a custom or

                               12
policy of causing constitutional violations. However, it
allowed the Dobys to proceed with some of their claims
against DeCrescenzo and the police defendants.

Specifically, the court refused to dismiss the defamation,
invasion of privacy, false arrest or imprisonment, gross
negligence, and intentional infliction of emotional distress
claims against DeCrescenzo. The court also allowed the
Dobys to proceed against the police defendants on their
section 1983 claims based on excessive force and against
the individual police officers on claims of gross negligence
and intentional infliction of emotional distress. The Dobys
appeal from this September 9, 1996 order, insofar as it was
unfavorable to them.

The remaining claims were tried on liability to a jury
starting on January 21, 1998. At the close of the Dobys'
case, the district court, by Judge Fullam, granted the police
defendants a judgment as a matter of law. Thus, the jury
deliberated only on certain claims against DeCrescenzo and
ultimately returned a verdict on special interrogatories
finding him liable for simple negligence but finding in his
favor on all other counts. The jury, however, did not make
a damages award. DeCrescenzo immediately moved for a
judgment as a matter of law, and the court granted his
motion, ruling that the evidence did not support the simple
negligence verdict. The Dobys timely filed post-trial motions
requesting reconsideration of certain earlier orders,
amendment of the verdict, and a new trial, but the district
court denied the motions in a memorandum and order on
March 10, 1998. The Dobys appeal from this order as well.

IV. DISCUSSION

A. Did the District Court Err in Granting Summary
   Judgment to the Municipal Defendants on the Dobys'
   Official Capacity Claims?

Despite the Dobys' wide-ranging claims in their
complaint, their appeal focuses on six of the district court's
rulings. The first ruling that the Dobys contest is the grant
of summary judgment to LVF and the county on the official
capacity claims. The first three issues briefed by the Dobys

                               13
revolve around this ruling.3 Thus, the initial question before
us is whether the district court erred in concluding that
LVF and the county were not liable to the Dobys because
they had no established custom or policy that caused a
constitutional deprivation. Because this first issue requires
us to review the grant of summary judgment, our review is
plenary and we must draw all reasonable factual inferences
in favor of the Dobys, the non-moving party. See Sharrar v.
Felsing, 128 F.3d 810, 817 (3d Cir. 1997).

       1. The existence of a municipal custom or policy

The district court correctly ruled that the Dobys could
recover under section 1983 on their official capacity claims
against the county defendants only if they showed that the
defendants had maintained a policy or custom that caused
a deprivation of constitutional rights. See, e.g., Monell v.
Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct.
2018, 2037-38 (1978). The Dobys argue that the county
defendants did have a custom or policy and that this policy
was unconstitutional. Specifically, they argue (i) that
allowing any individual, rather than only mental health
_________________________________________________________________

3. The Dobys repeatedly rely on Pennsylvania courts' interpretations of
Pennsylvania's constitutional provisions in making their argument that
Doby's constitutional rights were violated. However, we must determine
the liability of the county defendants under section 1983 according to
federal law. See Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689,
2693 (1979). Moreover, the district court dismissed all the state law
claims against LVF and the county based on their immunity from such
claims under section 7114(a) of the MHPA, Pa. Stat. Ann. tit. 50, S 7114,
and the Dobys have not appealed this ruling. Thus, the only valid issue
for appeal raised by the first three sections of the Dobys' brief is
whether
the county and LVF had a custom or policy of enforcing the MHPA in a
manner that caused Doby to suffer a violation of her federal
constitutional rights to due process and freedom from unreasonable
seizures.

The Dobys may be arguing that the MHPA itself creates substantive
rights that cannot be withdrawn without violating federal constitutional
guarantees. The only such right that is briefed substantially, however, is
the right to have only physicians or other mental health professionals
petition for section 7302 warrants. As discussed below, we do not believe
that the MHPA creates this right because we disagree with the Dobys'
statutory interpretation.

                               14
professionals, to petition for an involuntary examination is
unconstitutional; (ii) that warrants for involuntary
examinations must be based on probable cause, which
requires reliable informants, independent investigation,
neutral and detached decision makers, and a warrant that
is signed and sealed.

The district court dismissed the official capacity claims
against LVF and the county because it concluded that the
Dobys' allegation of a single act of constitutional violation,
Doby's involuntary examination, could not constitute a
custom or policy. We are of the view that this ruling
misapplied Monell. In concluding that the Dobys had failed
to allege a custom or policy because they claimed only a
single violation, the district court stated that a custom or
policy is found only when a "municipality must have
known, or reasonably should have realized, from the nature
of its conduct or from actual past violation, that its
practices were causing or likely to cause violations of
constitutional rights, and permitted these practices to
occur." In constructing this definition, the court relied on
Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990). In
Bielevicz, however, the city had no express policy on the
pertinent issue and the plaintiff therefore was attempting to
prove that one official's misconduct was not an isolated
occurrence. See id. In contrast, it cannot be doubted that
the county and LVF maintained a custom or policy
concerning applications for involuntary examinations.

LVF's written "Involuntary Commitment Procedure"
expressly foresees accepting petitions from non-physicians
and obtaining approval for the warrant from the county by
telephone. Moreover, it instructs the crisis worker to
"document" the behavior witnessed by the petitioner
without making any mention of investigation. The
defendants have not disputed that this is in fact how the
county and LVF process petitions for involuntary
examinations. When a plaintiff is challenging the
constitutionality of a policy or custom itself, Bielevicz does
not require him or her to allege a sequence of constitutional
deprivations; the claim that the policy resulted in the
plaintiff suffering such a deprivation satisfies Monell. See
id. at 850-51. The district court therefore erred in

                               15
dismissing the Dobys' official capacity claims on the ground
that they had failed to allege a custom or policy.

The question remains, however, whether the defendants'
method of processing petitions truly can be considered a
county, rather than a state, policy because when a county
is merely enforcing state law, without adopting any
particular policy of its own, it cannot be held liable under
the Monell line of cases. See Surplus Store and Exch., Inc. v.
City of Delphi, 928 F.2d 788, 790-92 (7th Cir. 1991); cf.
Garner v. Memphis Police Dep't, 8 F.3d 358, 364-66 (6th
Cir. 1993) (stating that municipality would be held liable
under Monell where state law authorized police officers to
use deadly force to apprehend fleeing felons but
municipality adopted a policy explaining when such force
could be used). We seem not to have considered specifically
whether municipalities or counties can be liable for
enforcing state law, but in one decision we did approve a
suit against a county where county sheriffs had garnished
the plaintiffs' bank accounts based on a state statute. See
Finberg v. Sullivan, 634 F.2d 50, 53-55 (3d Cir. 1980). We
did not decide Finberg under Monell, however, because
there the plaintiffs were seeking only a declaratory
judgment that the state statute was unconstitutional. See
id. at 53.

Without addressing the county/state policy distinction
specifically, the Dobys clearly have framed their arguments
to focus on the actions of the county. They do not argue
that section 7302 as written is itself unconstitutional;
rather they claim that LVF and the county have enforced it
in an unconstitutional manner by permitting warrants to be
issued by telephone based on uncorroborated information
supplied by individuals who are not mental health
professionals. The Dobys' suggestion that the enforcement
procedures should be considered a municipal or county,
rather than a state, policy has merit; because the statute
itself does not specify how the county delegate is to receive
information and issue warrants, LVF and the county
presumably have some discretion in deciding how to
implement the warrant application procedure. The Garner
court found the existence of such discretion determinative
in deciding that a municipality could be held liable for

                               16
enforcing the use of deadly force by its police officers.
Ultimately, however, we believe that we need not decide
whether a county or state policy is at issue because we
conclude that the enforcement policy adopted by LVF and
the county is constitutional.

       2. Does the county's policy violate the Fourteenth
       Amendment's Due Process Clause and the Fourth
       Amendment?

The Dobys do not contend that it is unconstitutional for
the Commonwealth of Pennsylvania to permit the
involuntary examination of those individuals who appear to
pose an immediate danger to themselves or others. Indeed,
they repeatedly commend the State for drafting a statute
that balances the need to provide treatment to the seriously
ill against the civil rights of those in need of such
treatment. The Dobys quarrel only with the enforcement of
the statute in two respects: (i) that LVF and the county
accept petitions for warrants from any individual, rather
than only from mental health professionals; (ii) that the
county delegate who decides whether to issue the warrant
does not interview the petitioner personally, performs no
investigation of the petitioner's claims, and permits the
crisis worker to sign the warrant on his or her behalf. The
district court relied on a well-analyzed and thoughtful
decision of the Court of Appeals for the First Circuit in
ruling that this enforcement policy is constitutional. See
McCabe v. Life-Line Ambulance Serv. Inc., 77 F.3d 540 (1st
Cir. 1996).

We deal first with a statutory interpretation contention
the Dobys raise. They devote a considerable portion of their
brief to arguing that statutory interpretation principles
require us to interpret the phrase "physician or other
responsible party" in section 7302(a)(1) to mean physician
or other mental health professional. The decisive factor
weighing against their interpretation is that it contradicts
the relevant state agency's construction. The application
form for requesting a warrant for a section 7302
examination does not limit the class of petitioners to mental
health professionals like physicians; it states: "Part I must
be completed by the person who believes the patient is in

                               17
need of treatment. If this person is not a physician, police
officer, the County Administrator or his delegate . . . ." This
form is created by the state agency in charge of overseeing
the implementation of the MHPA. Pennsylvania cases
provide that courts must defer to an administrative
agency's interpretation of a statute unless that
interpretation is clearly erroneous. See, e.g., Frey v. State
Farm Mut. Auto. Ins. Co., 632 A.2d 930, 933 (Pa. Super.
1993). Given the Legislature's use of the phrase "other
responsible party" rather than a phrase like "other health
care professional," the agency's interpretation of the statute
is not clearly erroneous and therefore merits our deference.

The Dobys' first constitutional argument is that
permitting individuals other than mental health
professionals to petition for a section 7302 warrant violates
the Due Process Clause of the Fourteenth Amendment.
They contend that permitting "anyone" to petition for such
a warrant, particularly when the petitioner's statements are
not investigated independently, will lead to arbitrary
deprivations of liberty as the petitioner may have improper
motives for seeking the involuntary examination. In
circumstances where anyone can petition for a warrant,
they argue, an individual must be granted the right to
notice and a hearing before an involuntary examination is
conducted.

It is important to note the narrowness of the Dobys'
arguments: they do not doubt that Pennsylvania has a
legitimate interest in providing for the involuntary
examination of dangerous individuals and that the federal
constitution does not prohibit it from legislating procedures
to enforce this interest. A contrary argument would be
difficult to support as the Supreme Court has held that a
state, in conformity with the Due Process Clause, may
confine mentally ill individuals if it shows by clear and
convincing evidence that the individuals are ill and
dangerous to themselves or others. See Foucha v.
Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 1786 (1992)
(citations omitted). The Dobys argue, however, that
permitting non-physicians to apply for such warrants
converts a constitutional process into an unconstitutional
one. This argument does not withstand scrutiny.

                               18
As is made clear by the title of section 7302 of the MHPA,
the procedure was created to allow the counties to handle
emergency situations. Courts have stated repeatedly that
due process is a flexible notion and that what kind of
process is due depends on the individual and state
interests at stake. See, e.g., Zinermon v. Bush, 494 U.S.
113, 127, 110 S.Ct. 975, 984 (1980). It may be reasonable,
therefore, for a state to omit a provision for notice and a
hearing in a statute created to deal with emergencies,
particularly where the deprivation at issue, in this case
detention for a maximum of several hours to permit an
examination, continues for only a short period of time. See
Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 19,
98 S.Ct. 1554, 1565 (1978) (stating that "[o]n occasion, this
Court has recognized that where the potential length or
severity of the deprivation does not indicate a likelihood of
serious loss and where the procedures underlying the
decision to act are sufficiently reliable to minimize the risk
of erroneous determination, government may act without
providing additional `advance procedural safeguards' ").

Indeed, the Dobys recognize the State's need to act
quickly in emergencies but nevertheless claim that notice
and a hearing must be provided in cases where the
petitioner is not a physician because the information
provided by non-physicians is unreliable. The Dobys have
not demonstrated, however, that non-physicians as a class
are inherently unreliable fact informants. Furthermore, the
Dobys misapprehend the role of a petitioner by suggesting
that a physician is more competent than a non-physician to
decide when conduct is "dangerous." Although their
contention may be true, under the structure of section
7302, the petitioners themselves are not making clinical
determinations about an individual's mental state; instead,
it is the county delegate, a trained mental health
professional, who has the duty to decide whether the
information provided by the petitioner constitutes grounds
for issuing a warrant. The Dobys offer no convincing reason
why non-physicians cannot be trusted to relay information
to a person competent to judge such information under the
appropriate clinical standards. Moreover, it is likely that a
person other than a physician or a mental health
professional will have the material information.

                               19
Additionally, section 7302 specifies that the county
should make decisions based on information provided by a
physician or "other responsible party." In the district court
the county presented testimony that each warrant
application is handled as it arises in order to guard against
individuals "who appear impaired in some way." The Dobys
have not proffered any evidence to suggest that LVF and
the county have a practice of issuing warrants when a
petitioner seems clearly imbalanced or otherwise impaired.

Further, the application procedure itself has a built-in
safeguard to prevent ill-motivated individuals from seeking
the involuntary examination of others: the face of the
application includes a clear statement providing that
anyone who supplies false information to the county may
be prosecuted criminally. In conformity with that policy,
Bryant informed DeCrescenzo that providing false
information on the application would constitute a
misdemeanor. Again, the Dobys have failed to explain why
it is unconstitutional to permit responsible individuals to
report about the actions of others when a mental health
professional is entrusted with judging the import of such
reports. Thus, the Dobys' claim that permitting non-
physicians to apply for warrants transforms a procedure
that is sound under the Due Process Clause to one that is
unsound is unpersuasive.4
_________________________________________________________________

4. The Dobys also appear to claim substantive due process violations. "A
substantive due process violation is established if the government's
actions were not rationally related to a legitimate government interest or
were in fact motivated by bias, bad faith or improper motive." Sameric
Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d
Cir.
1998) (citations omitted). Our conclusion below that the MHPA
authorizes seizures that are "reasonable" under the Fourth Amendment
establishes that the MHPA meets the rationality test imposed by
substantive due process analysis. Furthermore, there is no basis in the
record to conclude that the LVF or county defendants' actions were not
rationally related to a legitimate government interest or were motivated
by bias, bad faith, or improper motive. Indeed, the jury answered special
interrogatories finding in favor of DeCrescenzo himself on the Dobys'
claims of defamation, invasion of privacy, false arrest and detention,
gross negligence/willful misconduct, and intentional infliction of
emotional distress. In the circumstances it is quite clear that
DeCrescenzo was pursuing a legitimate interest in this matter.

                               20
The Dobys' second constitutional arguments, which they
base on the Fourth Amendment, are equally unconvincing,
and thus the district court correctly dismissed them based
on the "special need" exception to the probable cause and
warrant requirements. The Dobys claim that warrants for
involuntary examinations must be based on probable
cause, and therefore contend that the county must conform
to the requirements imposed by criminal law before it
authorizes the police to take custody of a mentally ill
individual for an involuntary examination.5

The Fourth Amendment applies to seizures in civil, as
well as criminal, proceedings. See O'Connor v. Ortega, 480
U.S. 709, 714-15, 107 S.Ct. 1492, 1496 (1987). The
fundamental inquiry in such proceedings, however, remains
whether the government's conduct is reasonable under the
circumstances. See Cady v. Dombrowski, 413 U.S. 433,
439-40, 93 S.Ct. 2523, 2527 (1973).

Although it was discussing a search rather than a
seizure, the Supreme Court has held that states may act
without obtaining a warrant and without probable cause in
situations where "special needs, beyond the normal need
for law enforcement, make the warrant and probable-cause
requirement impracticable." Griffin v. Wisconsin, 483 U.S.
868, 873, 107 S.Ct. 3164, 3168 (1987) (citations omitted).
Construing Griffin, the Court of Appeals for the First Circuit
held that the temporary involuntary commitment of those
deemed dangerous to themselves or others qualifies as a
"special need" permitting the state to act without a warrant.
See McCabe, 77 F.3d at 549. We agree.

Requiring the county to seek a warrant from a magistrate
in a situation where the county delegate has determined
that there are reasonable grounds to believe in an
_________________________________________________________________

5. The Dobys have not explained how their Fourth Amendment challenge
implicates a municipal or county, rather than a state, policy. The MHPA
clearly permits seizures of mentally ill individuals without requiring
county officials to apply to a magistrate for a warrant that would be
issued only upon probable cause. Instead, the statute creates an
alternative warrant scheme. We continue to assume, however, for
purposes of this opinion, that the county and LVF's actions in enforcing
this statute could be deemed a county policy.

                                21
individual's "clear and present" dangerousness would entail
delays with potentially life-threatening consequences. As
discussed above, by its terms, section 7302 applies only in
emergencies. Such emergency cases present a situation
where seeking a warrant is systemically impracticable.

Moreover, as the Supreme Court suggested in Griffin, a
magistrate's authorization is less desirable in cases where
non-judicial expertise is involved, such as determining the
amount of supervision necessary for a probationer. See
Griffin, 483 U.S. at 876, 879 n.6, 107 S.Ct. at 3170, 3172
n.6. The same reasoning applies where a county delegate
trained in a mental health field, rather than a magistrate
judge trained in the law, renders the decision of whether an
individual requires an emergency involuntary examination.
Although the Dobys suggest that such a determination is
unreliable when made by a county delegate on the
telephone without a face-to-face interview with the
petitioner, this argument again ignores the emergency
nature of section 7302 warrants. Furthermore, this
argument ignores the fact that magistrate judges often
issue warrants based on information supplied by police
officers who themselves are relying on absent informants.

Although we find that the "special need" exception
applies to the county's conduct under the MHPA, we
nevertheless must examine whether the procedures
followed by the county are reasonable under the
circumstances. Fourth Amendment doctrine provides that
"the shorter the detention, the less compelling is the
evidence of the necessity for it that the authorities need to
produce." Villanova v. Abrams, 972 F.2d 792, 796 (7th Cir.
1992) (citations omitted). Because the Dobys contest the
issuance of the section 7302 warrant, it is important to
focus on the deprivation of liberty caused by the execution
of the warrant itself. The MHPA requires that a physician
examine a detained individual within two hours of his or
her arrival at a hospital; therefore, that individual's liberty
will be curtailed for at most several hours unless a
physician independently concludes that the individual is
mentally disabled and in need of involuntary treatment. See
Pa. Stat. Ann. tit. 50, S 7302(b). Given the brief detention
authorized, the warrant procedures provide important

                               22
safeguards to protect individuals' rights. First, the warrant
is authorized by a neutral and detached official, the county
delegate. See Pa. Stat. Ann. tit. 50, S 7302(a)(1); see
McCabe, 77 F.3d at 552 (interpreting Supreme Court
precedent to require neutral and detached decision-maker
to authorize search or seizure in special needs exceptions to
the warrant and probable cause requirement). Second, the
county issues a warrant only when information presented
by a "responsible party" convinces a trained county
delegate that reasonable grounds exist to belief that an
individual poses a clear and present danger to him/herself
or others. Id.; Pa. Stat. Ann. tit. 50,S 7301(a).

Because the section 7302 procedures exist to respond to
emergency cases, it is reasonable for the county delegate to
consult with the crisis workers over the telephone and to
issue such warrants without independent investigation. The
statutory requirement that the individual appear
"responsible" and the warning on the application form that
false statements can subject a petitioner to criminal
prosecution are sufficient safeguards in light of the
circumstances to assure the reliability of information
communicated to the delegate. We therefore reject the
Dobys' Fourth Amendment challenge.6

B. Did the District Court Err in Granting a Judgment as
       a Matter of Law to DeCrescenzo on the Negligence
       Issue?

The jury returned a verdict in DeCrescenzo's favor on all
claims, including gross negligence/willful misconduct,
except simple negligence. The district court, however,
granted a judgment as a matter of law on the negligence
_________________________________________________________________

6. Once again, the Dobys rely on Pennsylvania law in their section 1983
argument, suggesting that the Pennsylvania Supreme Court has rejected
the "special need" exception for state statutes authorizing a seizure. See
Commonwealth v. Kohl, 615 A.2d 308 (Pa. 1992). Even if the court's
ruling in Kohl could be relevant to the federal analysis under section
1983, the Dobys misinterpret Kohl. This decision does not purport to
renounce categorically the "special need" exception; instead it simply
states that, under federal law, the exception does not apply in cases
where "the governmental interest to be advanced is the normal need for
law enforcement." Kohl, 615 A.2d at 314.

                               23
claim primarily because it concluded that there was simply
no evidence to support the verdict. It also found, however,
that the Dobys had not shown proximate cause between
the alleged negligence and Doby's injury. Subsequently on
the Dobys' post-trial motions it ruled that DeCrescenzo was
immune from a claim of simple negligence under section
7114 of the MHPA.

We will affirm the district court's ruling on this because
we agree with Judge Fullam's conclusion that DeCrescenzo
qualifies for immunity under section 7114. This section
provides in relevant part that:

       In the absence of willful misconduct or gross
       negligence, a county administrator, a director of a
       facility, a physician, a peace officer or any other
       authorized person who participates in a decision that a
       person be examined or treated under this act . . . shall
       not be civilly or criminally liable for such decision or
       for any of its consequences.

Pa. Stat. Ann. tit. 50, S 7114(a). Because DeCrescenzo was
the responsible person who initiated the involuntary
examination proceedings under section 7302, we hold that
he qualifies as an "authorized person who participate[d] in
a decision that a person be examined." See id.

Judge Rendell concluded otherwise in her summary
judgment order because she interpreted McNamara v.
Schleifer Ambulance Serv., Inc., 556 A.2d 448 (Pa. Super.
1989) to limit "participa[nts] in a decision" to those with
mental health training. We recognize that McNamara
contains language suggesting that section 7114 only
applies to mental health professionals. See McNamara, 556
A.2d at 449-50 (stating that "the legislature contemplated
the decision-making process under S 7114 as one which
would take place within the context of treatment, care,
diagnosis or rehabilitation. It is equally clear that the
individuals who would participate in those decisions would
be trained in the field of mental health."). But the issue in
McNamara was whether ambulance drivers transporting a
mental health patient qualified for immunity under the
MHPA. See id. at 449. Thus, the implicit question
addressed in that case was what kind of medical personnel

                                24
would qualify for immunity. The Pennsylvania Superior
Court reasonably concluded that only individuals with
mental health training, and thus those that actually had
participated in the assessment of the patient's mental state,
qualified for immunity.

In contrast, the issue posed by this appeal is whether the
individual who applies for a section 7302 warrant can be
deemed to be a participant in the decision-making process
to involuntarily examine the patient. We believe the answer
to this question must be "yes" because section 7114
explicitly includes peace officers within its immunity
provision. See Pa. Stat. Ann. tit. 50, S 7114. Given the
statutory scheme, it is difficult to imagine what role peace
officers could play in a decision to examine or treat an
individual other than to report information of dangerous
conduct observed by them. Because this is precisely what
DeCrescenzo did in this case, we find that he, like a peace
officer, qualifies for immunity under section 7114 unless he
engaged in willful misconduct or gross negligence. The
district court, therefore, correctly granted judgment as a
matter of law to DeCrescenzo on the simple negligence claim.7

C. Did the District Court Err in Entering a Judgment as
       a Matter of Law for the Police Defendants on the
       Claims of Excessive Force?

In considering the judgment as a matter of law for the
police defendants our review is plenary. See Lightning Lube,
Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). In
conducting our review, we apply the same standard relied
upon by the district court. See id. This standard requires
us to consider the evidence in the light most favorable to
the nonmoving party and to deny a defendant's motion for
a judgment as a matter of law if there is evidence
reasonably supporting recovery by the plaintiffs.

At the close of the Dobys' case, the district court granted
_________________________________________________________________

7. We also agree with the district court that the evidence could not
support a verdict on a negligence theory in favor of the Dobys against
DeCrescenzo. The district court also concluded that the Dobys' pleadings
did not include a claim for simple negligence so that the verdict for that
reason as well could not stand. We do not reach that issue.

                               25
a judgment as a matter of law to the police defendants on
the excessive force claims because it ruled that no rational
jury could find in the Dobys' favor on these claims. The
court explained: "[b]y the plaintiff's own testimony, she was
not mistreated. Under plaintiff's own testimony, she did
kick and scream. So that I don't think any rational jury
could say it was unreasonable for them to subdue her and
then to get her to the hospital."

In analyzing claims of excessive force under the Fourth
Amendment, we must decide whether the actions of the
police were "objectively reasonable in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation." Graham v. Connor, 490
U.S. 386, 397, 109 S.Ct. 1865, 1872 (1989) (internal
quotation marks omitted). See also In re City of Philadelphia
Litig., 49 F.3d 945, 962-63 (3d Cir. 1995). Significant
factors in evaluating the force used by the police are
whether the person being taken into custody is resisting or
attempting to resist by flight. See Graham, 490 U.S. at 396,
109 S.Ct. at 1871-72.

As the police officers argue, when they came to take Doby
into custody they had to be prepared to handle an
individual that the county delegate had determined posed a
clear danger to herself or others. Further, the officers were
aware that there were guns in the Dobys' home. Given
these circumstances, Doby's own testimony establishes that
the officers' actions were reasonable.

Upon arrival at the Dobys' residence, the officers knocked
on the door and requested that Doby step outside of the
apartment. When the officers refused to tell her why she
was being taken into custody, Doby made clear that she
would not accompany them willingly and "became angry."
She then attempted to return to the apartment, thus
resisting, causing the officers to "grab" her. When she
began to kick at the door and scream, the officers
handcuffed her. When she continued to kick and scream,
the officers shackled her. Once Doby arrived at the
hospital, a female officer performed a pat-down search and
Doby was placed in a wheelchair. Her handcuffs and
shackles were removed once she promised to cooperate.

                                26
Doby's own testimony established that the police officers
applied force in response to her attempts to resist,
including kicking, screaming and flight. Moreover, they
tailored each action taken to the type of resistance
encountered: handcuffing to prevent flight, shackling to
prevent kicking. We therefore conclude that the officers'
actions were objectively reasonable as a matter of law and
will affirm the district court's order on the excessive force
claims.8

D. Did the District Court Err in Denying the Dobys'
       Request for a Declaratory Judgment?

The district court, by Judge Fullam, rejected the Dobys'
motion for a judgment declaring the MHPA to be
unconstitutional under the Fourteenth Amendment's Due
Process Clause and the Fourth Amendment. It ruled that
the Dobys had abandoned this claim by failing to renew it
before the trial and that, as a result, the court had not
provided the Attorney General of Pennsylvania with the
notice required under Fed. R. Civ. P. 24(c). We need not
reach the issue of proper notice in order to affirm the
district court's decision. As explained above, the statute is
constitutional under the Due Process Clause and the
Fourth Amendment even if non-physicians are allowed to
petition for section 7302 warrants. Thus, the district court's
refusal to rule on the declaratory judgment motion, even if
it had been error, was harmless.

E. Did the District Court Abuse Its Discretion in
       Prohibiting Dobys' Expert Susan Bierker From
       Testifying?

We review the district court's rulings on the admissibility
of expert testimony for abuse of discretion. See United
_________________________________________________________________

8. The Dobys' claim that section 4422 of the Pennsylvania mental health
statutes rendered the officers' actions illegal is meritless. See Pa.
Stat.
Ann. tit. 50, S 4422 (West 1969). Section 4422 provides that
"[m]echanical restraints shall not be used or applied to a mentally
disabled person, except: (1) When necessary to prevent such person from
harming himself or others when being transported as provided in
sections 405 or 421 . . . ." As discussed above, the restraints used by
the
police officers were necessary to prevent Doby from harming the officers
or herself as a result of her resistance.

                               27
States v. Bennett, 161 F.3d 171, 182 (3d Cir. 1998);
Waldorf v. Shuta, 142 F.3d 601, 626-27 (3d Cir. 1998). The
trial judge has broad discretion to admit or exclude expert
testimony, based upon whether it is helpful to the trier of
fact. See Bennett, 161 F.3d at 182.

The district court, by Judge Fullam, excluded the
testimony of Susan Bierker, a licensed clinical social worker
who was prepared to opine that Doby had suffered post-
traumatic stress disorder solely as a result of herfive-day
involuntary commitment. The court concluded that Bierker
was not qualified to render this opinion and that her
opinion was based on a "seriously inaccurate"
understanding of the facts. The Dobys claim that this was
error.

As the Dobys concede, Bierker's testimony was offered to
prove the damages suffered by Doby. Because the jury
returned a verdict in favor of DeCrescenzo on all claims
other than simple negligence, and because the court
correctly granted a judgment as a matter of law to
DeCrescenzo on the simple negligence claim, there were no
damages for the jury to calculate. Thus, any error by the
district court in excluding Bierker's testimony is harmless.

F. Did the District Court Err in Granting Summary
       Judgment to Dr. Richards?

The district court, by Judge Rendell, found that, because
Dr. Richards qualified for immunity under section 7114 of
the MHPA, he could be liable to the Dobys only if his
conduct amounted to gross negligence or willful
misconduct. The court ruled, as a matter of law, that the
Dobys had not provided evidence sufficient to "establish
flagrant behavior which grossly deviates from the standard
of care required."

The claim against Dr. Richards, of course, essentially
related to his decision to commit Doby involuntarily rather
than to the issuance of the warrant. The Dobys do not
contest the district court's decision that, as a treating
physician, Dr. Richards would be liable to them only for
gross negligence/willful misconduct. Pennsylvania law
defines gross negligence in the context of the MHPA as
"facts indicating more egregiously deviant conduct than

                                28
ordinary carelessness, inadvertence, laxity or indifference.
. . . The behavior of the defendant must be flagrant, grossly
deviating from the ordinary standard of care." Albright v.
Abington Memorial Hospital, 696 A.2d 1159, 1164 (Pa.
1997) (citation omitted). Further, willful misconduct exists
when "the danger to the plaintiff, though realized, is so
recklessly disregarded that, even though there be no actual
intent, there is at least a willingness to inflict injury, a
conscious indifference to the perpetration of the wrong."
Krivijanski v. Union R.R. Co., 515 A.2d 933, 937 (Pa. Super.
1986) (internal quotation marks omitted).

The Dobys produced two expert reports, one from Dr.
Paul S. Applebaum and the other from Dr. Eileen A.
Bazelon, to support their contention that Dr. Richards had
acted in a grossly negligent manner. Dr. Bazelon's report
states: "Dr. Richards [did not act] in accordance with the
customary or usual standard of care." She opines that by
not questioning DeCrescenzo's motive or further
questioning Herbert Doby and Doby's regular psychiatrist,
Dr. Richards "deviated from the reasonable standard of
care" and evidenced "complete disregard" for Doby's rights.
Her report also acknowledges, however, that the content of
Doby's writings was "frightening."

This first report does not create a genuine factual dispute
about Dr. Richards' gross negligence/willful misconduct.
Dr. Bazelon merely states that Dr. Richards deviated from
the standard of care, which might amount to ordinary
negligence, but she does not use terms to suggest that this
deviation was gross or flagrant.

The second report, by Dr. Applebaum, details five
deficiencies with Dr. Richards' examination and resulting
diagnosis of Doby's depression, including failure to inquire
about the most common symptoms of depression, failure to
evaluate adequately her suicidality, failure to access
collateral sources of data such as Doby's regular
psychiatrist and Herbert Doby, a "grossly inadequate"
mental status evaluation, and failure to explore less
restrictive alternatives to involuntary commitment. The
language of this report does suggest that Dr. Richards
acted with gross negligence; Dr. Applebaum presents Dr.
Richards as a highly incompetent psychiatrist, unfamiliar

                               29
with the basic medical definition of depression or its
common symptoms and indifferent to the information he
did gather. However, Dr. Applebaum's failure to discuss in
any way the contents of the 11-page letter and the suicide
note suggests a lack of familiarity with the basic facts of the
case. See Shaw by Strain v. Strackhouse, 920 F.2d 1135,
1142 (3d Cir. 1990) (stating that expert opinion in the
circumstance of that case should have been based on facts
in the record). This apparent ignorance of Doby's writings,
which represented crucial evidence of her mental state,
undermines Dr. Applebaum's conclusions regarding Dr.
Richards' actions.

Considering the undisputed facts of this case, which
showed that Doby had a history of depression and admitted
to contemplating suicide, and that Dr. Richards had in his
possession an extensive 11-page letter that even the Dobys'
expert Dr. Bazelon concedes was "frightening," we agree
with the district court's ruling "that the deficiencies noted
by Drs. Applebaum and Bazelon could not amount to
anything more than simple negligence by Dr. Richards." We
also point out that courts should be cautious in allowing
juries to deliberate on the liability of physicians making
involuntary committments lest physicians decline to order
committments when needed, thus possibly leading to
unfortunate consequences. Cf. McArdle v. Tronetti, 961 F.2d
1083, 1085-86 (3d Cir. 1992) (prison doctor allegedly giving
false testimony and false diagnosis in commitment
proceedings entitled to absolute immunity in action under
42 U.S.C. S 1983 in furtherance of policy to protect person
functioning as part of judicial process from harassment and
intimidation).

V. CONCLUSION

We will affirm both the district court's September 9, 1996
order granting summary judgment to the defendants on a
portion of the Dobys' claims and its March 10, 1998 order
denying the Dobys' motion requesting a new trial,
reconsideration of previous orders, and amendment of the
judgment.

                                30
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               31
