                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-17-2004

Benn v. Unvrsl Health Sys
Precedential or Non-Precedential: Precedential

Docket No. 01-3450




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PRECEDENTIAL                                  District Court Judge: Honorable Mary A.
                                                             McLaughlin
    UNITED STATES COURT OF                              (D.C. No. 99-cv-6526)
           APPEALS                                     ____________________
     FOR THE THIRD CIRCUIT
          ____________                          Submitted Under Third Circuit LAR
                                                             34.1(a)
              No. 01-3450                               December 4, 2003
             ____________
                                                Before: SLOVITER, ALITO, Circuit
           DONALD BENN,                        Judges, and OBERDORFER,* District
                                                           Court Judge
                         Appellant
                                                     (Opinion Filed: June 17, 2004)
                    v.
                                              ROSS BEGELMAN
   UNIVERSAL HEALTH SYSTEM,                   Begelman & Orlow
      INC.; HORSHAM CLINIC;                   411 Route 70 East
    RAMESH ELURI, DR.; EILEEN                 Suite 245
      WILCOX; MONTGOMERY                      Cherry Hill, New Jersey 08034
   COUNTY MH-MR EMERGENCY                     Counsel for Appellant
   SERVICE, d/b/a MONTGOMERY
  COUNTY EM ERGENCY SERVICE,                  KEVIN J. O’BRIEN
    INC.; VENU M UKERJEE, DR.,                Marks, O’Neill, O’Brien, & Courtney
 Individually, severally, jointly and/or in   1880 JFK Boulevard
             the alternative;                 Suite 1200
       STEPHEN ZERBY, M.D.;                   Philadelphia, PA. 19103
  MOHAM MAD QUASIM, DR., C/O
            MONTGOMERY                        KENNETH D. POWELL, JR.
  COUNTY EM ERGENCY SERVICE,                  Rawle & Henderson
        INC. 50 BEECH DRIVE                   334 West Front Street
          NORRISTOWN, PA                      2 nd Floor
19401 INDIVIDUALLY, SEVERALLY,                Media, PA. 19063
      JOINTLY AND/OR IN THE
            ALTERNATIVE                       CHARLES W. CRAVEN
         ___________________                  MARION H. GRIFFIN

 ON APPEAL FROM THE UNITED
   STATES DISTRICT COURT                         *
                                                   The Honorable Louis F. Oberdorfer,
 FOR THE EASTERN DISTRICT OF                  United States District Judge for the
       PENNSYLVANIA                           District of Columbia, sitting by
                                              designation.
Marshall, Dennehey, Warner, Coleman &               Each time Benn called Horsham, he spoke
Goggin                                              to Eileen Wilcox, an experienced crisis-
1845 Walnut Street                                  line counselor. Benn told Wilcox that he
16 th Floor                                         was looking for treatment for post-
Philadelphia, PA 19103                              traumatic stress disorder and was
                                                    interested in Horsham. Benn admits that
Counsels for Appellees                              during one conversation he told Wilcox
                                                    that he was driving over the Tacony-
         ____________________                       Palmyra Bridge. Wilcox claims that Benn
                                                    told her he had stopped his car and had
       OPINION OF THE COURT                         considered jumping off the bridge. Benn
        ____________________                        denies this.    W ilcox told Benn that
                                                    Horsham did not make regular outpatient
Alito, Circuit Judge:                               appointments but that they would assess
                                                    his need for care if he came in.
       This case concerns Donald Benn’s
short-term involuntary commitment to a                      Benn arrived at Horsham late that
psychiatric facility for an emergency               evening and was quickly interviewed by
examination. After his release, Benn                psychiatrist Dr. Ramesh Eluri.         The
brought federal and state claims against            interview lasted 40 minutes, and Dr. Eluri
those involved in his commitment. The               claims that, during the interview, Benn
District Court granted summary judgment             admitted to being depressed and suicidal.
in favor of all defendants. We affirm.              Benn asserts that he never told Dr. Eluri
                                                    that he was suicidal and that Dr. Eluri
                     I.                             misunderstood him because of Dr. Eluri’s
                                                    poor English. After the interview, Dr.
       Prior to the events at issue here,           Eluri told Wilcox that he was concerned
Donald Benn was under the care of                   for Benn’s safety and that a petition for
therapist Dr. Jack Hartke and psychiatrist          involuntary com mitm ent m ight be
Dr. Lynn Bornfriend, both of whom had               necessary because Benn refused to seek
treated him for depression and post-                treatment. Benn, however, did agree to
traumatic stress disorder. The treatment            sign a “Contract for Safety,” which stated:
included anti-depressant medication.
                                                           I, Donald Benn on August
          On August 15, 1998, Benn                         15, 1998 agreed to keep
t e l ep h o n e d t he H o rs h am C li n ic              myself safe and that if I feel
(“Horsham”) three times. Horsham, a                        any increase of suicidal
mental healthcare facility in Montgomery                   thoughts or feeling I will
County, Pennsylvania, is wholly owned by                   contact Horsham Clinic [or]
Universal Health System, Inc. (“UHS”).                     the police.”    Below the

                                                2
      contra ct, B enn w rote :                         suicidal, feels unsafe and
      “While there is no doubt                          dangerous to himself. He
      w h a t-so-e ver that m y                         needs inpatient treatment.
      mental/emotional health has
      been         G R E A T L Y                 App. 242.
      compromised I feel as
      certain as certain can be that                    The petition was reviewed by the
      a few more days won’t hurt                 county administrator, who authorized the
      (too much).”                               police to take Benn into custody. The
                                                 police went to Benn’s home, and he was
Wilcox asked Benn to remain at the clinic        transported by ambulance to Montgomery
while Dr. Eluri looked over the contract,        Co unty E m e r g e nc y Se rvic e I n c.
but Benn refused and left.                       (“MCES”), a private, not-for-profit
                                                 psychiatric hospital in Norristown,
       Upon seeing the contract, Dr.             Pennsylvania, that, by contract, handles all
Eluri’s concern about Benn’s safety grew,        involuntary and emergency psychiatric
and he filed an application under a              confinements in the county.
provision of Pennsylvania’s M ental Health
Procedures Act (MHPA), 50 Pa. Stat. Ann.                 Upon arrival at MCES, Benn was
§ 7302(a), requesting that Benn be               placed in an isolated waiting room. He
examined to determine his need for               was then seen by Dr. Stephen Zerby, an
treatment.    See App. 240-42.        The        MCES psychiatrist, who conducted an
application stated:                              hour-long interview and decided, based on
                                                 the interview and Dr. Eluri’s petition, that
      [Benn] said he had seriously               Benn should be admitted for an emergency
      thought about jumping from                 examination for the period permitted by
      Coney Bridge [sic], while he               the MHPA, 50 Pa. Stat. Ann. § 7302(d),
      was driving. In fact, he                   i.e., not more than 120 hours. App. 244.
      stopped the car. He admits                 The next day, August 16, Benn was
      feeling suicidal now and                   interviewed by Dr. Mohammad Quasim,
      feels unsafe and unstable.                 another MCES psychiatrist, who continued
      He also believes that his                  the treatment started by Dr. Zerby. The
      mental        health       is              following day, August 17, Benn was seen
      compromised and needs                      by Dr. Venu Mukerjee, yet another MCES
      hospitalization.   He also                 psychiatrist, who found him to have
      says h e had suicidal                      “limited insight and obvious[] difficulties
      thoughts consistently for the              with impulse control, where he might have
      past few weeks. He is                      verbalized suicidal intent while at
      vague about his attempts...                Horsham . . . . His insight is limited and
      In my assessment, Pt. is very              his judgment is definitely impaired.” App.

                                             3
21. On August 18, Dr. Mukerjee noted                procedural due process. The Court also
that “[Benn] is now contracting for safety          granted summary judgment on the state
and has never been suicidal since his               tort claims for all parties except Wilcox,
admission here.” He was then released.              because it found that these parties were
App. 22.                                            immune from such claims under Section
                                                    114 of the MHPA, 50 Pa. Stat. Ann.
       During his time at MCES, Benn                §7114. As for Wilcox, the Court found
was in contact with his common-law wife,            that there was no evidence against her to
his treating therapist, a lawyer, and a             support the state tort claims.      Benn
friend. Benn claims that his detention              appealed.
room had no toilet and that he was forced
to urinate on the walls.                                                    II.

           In December 1999, Benn filed this               We turn first to Benn’s § 1983
action in the United States District Court          claim. Section 1983 provides in relevant
for the Eastern District of Pennsylvania            part:
against Wilcox, Dr. Eluri, Horsham, UHS,
MCES, Dr. Mukerjee, Dr. Zerby, and Dr.                    Every person who, under
Quasim. Benn asserted claims under 42                     color of an y statute,
U.S.C. § 1983 for alleged violations of his               o r d i n a n c e , r e g u l a t i o n,
procedural and substantive due process                    custom, or usage, of any
rights, as well as numerous tort claims                   State or Territory or the
under P ennsylvania law , to wit,                         District of C olum bia ,
n e g l i g en ce/malpractice, intentional                subjects, or causes to be
infliction of emotional distress, assault and             subjected, any citizen of the
batte ry, neglig ence , and f alse                        United States or other
imprisonment. In addition, Benn sought                    person within the
punitive damages against all defendants.                  jurisdiction thereof to the
                                                          deprivation of any rights,
       The parties filed cross-motions for                privileges, or immunities
summary judgment. In July 2001, the                       secured by the Constitution
District Court granted summary judgment                   and laws, shall be liable to
in favor of all defendants. The Court held                the party injured in an action
that Dr. Eluri, Wilcox, Horsham, and UHS                  at law, suit in equity, or
were not state actors and thus could not be               other proper proceeding for
sued under §1983. In addition, assuming                   redress.
for the sake of argument that MCES, Dr.
Mukerjee, Dr. Zerby, and Dr. Quasim were            To establish a claim under §1983, Benn
state actors, the Court held that they did          must show that the defendants 1) were
not violate Benn’s right to substantive or

                                                4
state actors 1 who 2) violated his rights         designated facility for an emergency
under the Constitution or federal law.            examination.    50 Pa. Stat. Ann. §
                                                             4
Flagg Bros., Inc. v. Brooks, 436 U.S. 149,        7302(a)(1). In addition, a physician or
155 (1978).

                    A.                            50 Pa. Stat. Ann § 7301(a).
                                                    4
                                                        50 P.S. § 7302(a) provides as follows:
       Benn contends that Horsham, UHS,
Dr. Eluri, and Wilcox2 (the “Horsham
                                                           (a)      A p p l i c a ti o n  for
defendants”) were state actors because
                                                           Examination.--Emergency
they were acting pursuant to the MHPA.
                                                           e x a m i n a t io n m a y b e
Under the MHPA, a physician or other
                                                           undertaken at a treatment
“responsible party” may file an application
                                                           facility            upon      the
that may lead to the issuance of a warrant
                                                           certification of a physician
authorizing a person who is “severely
                                                           stating the need for such
mentally disabled and in need of
                                                           examination; or upon a
immediate treatment” 3 to be taken to a
                                                           warrant issued by the county
                                                           administrator authorizing
      1                                                    s u c h exam ination ; o r
     “In cases under § 1983, ‘under color’
                                                           without a warrant upon
of law has consistently been treated as the
                                                           application by a physician or
same thing as the ‘state action’ required
                                                           other authorized person who
under the Fourteenth Amendment.”
                                                           has personally observed
Rendell-Baker v. Kohn, 457 U.S. 830,
                                                           conduct showing the need
838 (1982); see also Dluhos v. Strasberg,
                                                           for such examination.
321 F.3d 365, 374 (3d Cir. 2003).
  2
   For the purpose of summary judgment,                    (1) Warrant for Emergency
MCES, Dr. Mukerjee, Dr. Quasim, and Dr.                    Examination.--Upon written
Zerby conceded that they were “state                       application by a physician or
actors,” and therefore we do not decide                    other responsible party
that question.                                             setting forth facts
                                                           constituting reasonable
          3
        A person is “severely mentally                     grounds to believe a person
disabled” “when, as a result of mental                     is severely mentally disabled
illness, his capacity to exercise self-                    and in need of immediate
control, judgment and discretion in the                    treatment, the county
conduct of his affairs and social relations                administrator may issue a
or to care for his own personal needs is so                warrant requiring a person
lessened that he poses a clear and present                 authorized by him, or any
danger of harm to others or to himself.”                   peace officer, to take such

                                              5
other person who has observed a person            it is determined that the person is “severely
engaging in conduct that provides                 mentally disabled and in need of
reasonable grounds to believe that the            immediate treatment,” the treatment must
person is “severely mentally disabled and         begin immediately. 50 Pa. Stat. Ann. §
in need of treatment” may take the person         7302(b). If it is determined at any time
to an approved facility for such an               that the person is not in need of treatment,
examination. 50 Pa. Stat. Ann. § 7302(b).         the person must be discharged, and in any
At the facility, the individual who brought       event the person must be released within
the person thought to need treatment must         120 hours unless a certification for
make “a written statement setting forth the       extended involuntary emergency treatment
grounds for believing the person to be in         is filed under 50 Pa. Stat. Ann. § 7303. In
need of examination.” 50 Pa. Stat. Ann. §         this case, the District Court held that,
7302(a)(2). A person taken to a facility          because the Horsham defendants were
must be examined within two hours, and if         merely involved in the application for
                                                  Benn’s commitment, they were not state
                                                  actors.
       person to the facility
                                                         In Brentwood Acad. v. Tennessee
       specified in the warrant.
                                                  Secondary Sch. Athletic Ass’n, 531 U.S.
                                                  288, 296 (2001), the Supreme Court noted
       (2) Emergency Examination
                                                  that the criteria for determining whether
       Without a Warrant.--Upon
                                                  state action is present “lack rigid
       personal observation of the
                                                  simplicity,” but the Court identified factors
       c o nduct of a person
                                                  that bear on the question. The Court
       cons tituting reasonable
                                                  wrote:
       grounds to believe that he is
       severely mentally disabled
                                                         We have, for example, held
       and in need of immediate
                                                         that a challenged activity
       treatm ent, and (sic )
                                                         may be state action when it
       physician or peace officer,
                                                         results from the State's
       or anyone authorized by the
                                                         e xer c i s e o f "coe rciv e
       county administrator may
                                                         power," [Blum v. Yaretsky,
       take such person to an
                                                         457 U.S. 991, 1004 (1982)],
       approved facility for an
                                                         when the State provides
       emergency examination.
                                                         "significant encouragement,
       Upon arrival, he shall make
                                                         either overt or covert," ibid.,
       a written statement setting
                                                         or when a private actor
       forth the grounds for
                                                         operates as a "willful
       believing the person to be in
                                                         participant in joint activity
       need of such examination.
                                                         with the State or its agents,"
.

                                              6
       [Lugar v. Edmondson Oil                    application for an emergency examination,
       Co., 457 U.S. 922, 941                     we see nothing in the MPHA that compels
       (1982)] (Internal quotation                or even significantly encourages the filing
       marks omitted). We have                    of an application. See Rockwell v. Cape
       treated a nominally private                Cod Hosp., 26 F.3d 254, 258 (1 st Cir.
       entity as a state actor when               1994) (no compulsion where state law
       it is controlled by an                     merely permits physicians to petition for
       "agency of the State,"                     involuntary commitment but does not
       Pennsylvania v. Board of                   mandate that they do so); Harvey v.
       Directors of City Trusts of                Harvey, 949 F.2d 1127, 1131 (11 th Cir.
       Philadelphia, 353 U.S. 230.                1992) (no compulsion or encouragement
       231 (1957) (per curiam),                   where state statutes not enacted to
       when it has been delegated a               encourage commitment); Spencer v. Lee,
       public function by the State,              864 F.2d 1376,1379 (7 th Cir.1989) (same);
       cf., e.g., [West v. Atkins,                Janicsko v. Pellman, 774 F.Supp. 331,
       487 U.S. 42, 56 (1988)];                   338-39 (M.D.Pa.1991) (“this court cannot
       Edmonson v. Leesville                      hold that the standards set by the MHPA
       Concrete Co., 500 U.S. 614,                rise to the level of coercion”), aff'd, 970
       627-628 (1991), when it is                 F.2d 899 (3d Cir. 1992) (table).
       "entw ined            wit h
       governmental policies," or                        Second, the Horsham defendants
       when gover nm ent is                       did not operate as “willful participant[s] in
       "entwined in [its]                         joint activity with the State or its agents”
       management or control,"                    under Lugar, 457 U.S. at 941. In Lugar,
       Evans v. Newton, 382 U.S.                  creditors moved for a prejudgment writ of
       296, 299, 301 (1966).                      attachment, and the writ was issued by a
                                                  court clerk and executed by a sheriff. Id.
531 U.S. at 295.                                  at 924. The debtor whose property was
                                                  attached brought an action asserting two §
       In the present case, none of these         1983 claims against the creditors. Count
factors points toward the presence of state       one claimed that the prejudgment
action. First, the M HPA, on which Benn           attachment process permitted by state law
predicates his state action argument, did         was “procedurally defective under the
not coerce the Horsham defendants to file         Fourteenth Amendment.” Id. at 941.
the application that led to Benn’s                Count two alleged that the creditors had
commitment. Nor did the MHPA provide              invoked the attachment process in a way
“significant encouragement, either overt or       that was “‘malicious, wanton, willful,
covert.”     Blum, 457 U.S. at 1004.              opressive [sic]” and unlawful under state
Although the MHPA permits a physician             law. Id. at 940 (brackets in Supreme Court
or other “responsible party” to file an           opinion). The Supreme Court held that the

                                              7
first count stated a § 1983 claim because                 act according to the Act, and
“the procedural scheme” was “the product                  the high duty placed upon
of state action.” Id. By contrast, the Court              them.      Such intentional,
concluded that the second count did not                   reckless, and gross disregard
satisfy the state action requirement                      of the rules and standards
because “private misuse of a state statute                they were bound by, the
does not describe conduct that can be                     Defendants intentionally
attributed to the State.” Id. The Court                   committed a horrible act
stated: “[t]hat [the creditor] invoked the                upon Plaintiff.
statute without the grounds to do so could
in no way be attributed to a state rule or         Id. at 429.
decision.” Id. at 940.
                                                           The crux of Benn’s complaint about
       In this case, Benn’s constitutional         the conduct of the Horsham defendants
claims against the Horsham defendants              appears to be that they conducted a
parallel the claim found to be defective in        “seriously defective evaluative process,”
Lugar. As Benn’s Memorandum of Law                 Appellant’s Br. at 10, and that he did not
in Support of his M otion for Summary              meet the standard for emergency
Judgment makes clear, Benn’s theory was            commitment under the MHPA. See App.
that these defendants violated his                 429 (Memorandum in Support of
constitutional rights because they allegedly       Summary Judgment); id. at 263 (expert
did not comply with the MHPA. See App.             report).    Benn’s constitutional claim
428-429.       The portion of Benn’s               against Horsham defendants is thus
Memorandum addressing his constitutional           precisely the type of claim that Lugar
claims begins by stating:                          found to be inadequate to establish state
                                                   action.
       Defendants had [a] duty and
       obligation to follow the                           Third, this is clearly not a case in
       rules and standards of the                  which nominally private persons were
       Pennsylvania Mental Health                  controlled by an ag ency of the
       Procedures Act. Such act                    Commonwealth. Benn makes no such
       governed the circumstances                  allegations.
       and procedures surrounding
       the extreme action of                              Fourth, the conduct in question here
       involuntarily committing an                 – applying for Benn’s emergency
       individual.                                 commitment – is not a “public function”
                                                   that the MHPA delegated to private
Id. at 428. The Memorandum then adds:              persons.    In considering the “public
                                                   function” issue, we must ask whether the
       Defendants clearly failed to                challenged action relates to a function that

                                               8
has been “traditionally the exclusive                the Horsham defendants. Thus, none of
prerogative of the State.” Jackson v.                the factors identified in Brentwood
Metropolitan Edison Co., 419 U.S. 345                supports a finding of state action in this
(1974). Here, we have no basis for                   case.
concluding that petitioning for involuntary
confinement is or ever was the exclusive                     Nor does this case satisfy the
prerogative of the state, either in                  “symbiotic relationship” test that derives
Pennsylvania or in the country in general.           from Burton v. Wilmington Parking
See Rockwell v. Cape Cod Hosp., 26 F.3d              Authority, 365 U.S. 715 (1961). After
at 259 (“The history of involuntary                  Brentwood, our Court, sitting en banc,
treatment of the m entally ill in                    held that the “symbiotic relationship” test
M a ssach usetts d e m o n s t r a te s t h at       continues to provide an additional, albeit
involuntary treatment has by no means                “narrow,” basis for finding that private
been the exclusive prerogative of the                action may fairly be attributed to the state.
State.”); Spencer v. Lee, 864 F.2d 1376,             Crissman v. Dover Downs Entertainment,
1380-81(7th Cir. 1989)(holding that civil            Inc., 289 F.3d 231, 242 (3d Cir. 2002).
commitment in Illinois was not a                     This theory, however, has no application
traditional and exclusive public function);          here. A “symbiotic relationship” demands
Bodor v. Horsham Clinic, Inc., 1995 WL               “a close association of mutual benefit”
424906 at *8 (E.D.Pa. July 19, 1995)                 between the state and the private entity or
(Pennsylvania).                                      person. Crissman, 289 F.3d at 240. In
                                                     Burton, such a relationship existed
       Fifth, this case does not involve             between a city that owned a parking
“entwinement” within the meaning of                  structure and a restaurant to which it
Brentwood. There, the Court held that an             leased space. In this case, there is no
interscholastic athletic association was             indication that the Horsham defendants
entwined with the state where the great              made any profit from the petition to
majority of the association’s member                 commit Benn, and there certainly is no
schools were public, representatives of the          evidence that the government received any
schools acting in their official capacities          tangible benefit from Horsham, save a
selected members of the association’s                possible increase in the general welfare.
governing bodies, state officials also sat on        “That a private entity performs a function
those bodies in an ex officio capacity, the          which serves the public does not make its
association was largely financed by gate             acts state action.” Rendell-Baker v. Kohn,
receipts from member-school tournaments,             457 U.S. 830. Thus, neither the factors
and association employees participated in            cited in Brentwood nor the symbiotic
the state retirement system. 531 U.S. at             relationship theory shows the presence of
298-300. In this case, Benn does not                 state action in this case.
allege that the Commonwealth was
“entwined” in any comparable sense with                     The decisions of other courts of

                                                 9
appeals and those of district courts in this        has no merit.
circuit also support the conclusion that
persons who petition for the involuntary                   First, even if these defendants
commitment of others are not state actors.          violated the MHPA, this would not
See Rockwell v. Cape Cod Hosp., 26 F.3d             establish a §1983 claim. “The plain
at 257-58; Harvey v. Harvey, 949 F.2d               language of section 1983, interpreted and
1127, 1131 (11th Cir.1992); Spencer, 864            underscored by the Supreme Court in
F.2d at 1380-81; Doby v. Decrescenzo,               Maine v. Thiboutot, 448 U.S. 1 (1980),
1996 WL 510095 (E.D.Pa. Sept. 9, 1996),             solely supports causes of action based
aff’d, 118 F.3d 1575 (3rd Cir. 1997)                upon violations, under the color of state
(table); Bodor v. Horsham Clinic, Inc.,             law, of federal statutory law or
supra (thoroughly analyzing the “state              constitutional rights. Section 1983 does
actor” question); Savacool v. Delaware              not provide a cause of action for violations
County Department of Mental Health,                 of state statutes.” Brown v. Grabowski,
1993 WL 21209, *6 (E.D.Pa. Jan.25,                  922 F.2d 1097, 1113 (3d Cir. 1990); see
1993); Janicsko v. Pellman, 774 F.Supp.             also Flagg Bros., Inc. v. Brooks, 436 U.S.
331, 339 (M.D.Pa.1991), aff'd, 970 F.2d             149, 155 (1978).
899 (3d Cir.1992).
                                                            Second, in an emergency situation,
       Our analysis leads to the same               a short-term commitment without a
result. We thus hold that the Horsham               hearing does not violate procedural due
defendants were not state actors.                   process. In a similar case dealing with the
                                                    MHPA, we observed that “[i]t may be
                    B.                              reasonable . . . for a state to omit a
                                                    provision for notice and a hearing in a
       Benn claims that MCES, Dr.                   statute created to deal with emergencies,
Mukerjee, Dr. Zerby, and Dr. Quasim, all            particularly where the deprivation at issue,
of whom conceded that they were state               in this case detention for a maximum of
actors for purposes of the motion for               several hours to permit an examination,
summary judgment, violated both his                 continues for only a short period of time.”
procedural and substantive due process              Doby v. DeCrescenzo, 171 F.3d 858, 870
rights. We disagree.                                (3d. Cir. 1999); see also Project Release v.
                                                    Prevost, 722 F.2d 960, 974 (2d Cir. 1983);
                     1.                             Covell v. Smith, 1996 WL 750033
                                                    (E.D.Pa. Dec. 30 1996); Luna v. Zandt,
        Benn argues that MCES and its               554 F.Supp. 68, 76 (S.D.Tex. 1982).
doctors violated procedural due process by
failing to comply with the MHPA and by                    Benn’s case clearly presented an
failing to grant him a hearing before he            emergency situation. Both his calls to the
was involuntarily confined. This argument           Horsham clinic and his note at the bottom

                                               10
of his Contract for Safety suggested to the         it may fairly be said to shock the
doctors that Benn was highly unstable.              contemporary conscience.” County of
Furthermore, he was committed for a                 Sacramento v. Lewis, 523 U.S. 833, 847,
“short period of time” and was released             fn. 8 (1998). Whether an incident “shocks
upon Dr. M ukerjee’s evaluation that he             the conscience” is a matter of law for the
was no longer suicidal. While committed,            courts to decide, see Rochin v. California,
Benn was constantly evaluated by the                342 U.S. 165, 172 (1952), and we have
MCES physicia ns.           Under these             pr e viously he ld that involun ta ry
circumstances, we hold that the defendants          commitment under the MHPA does not in
did not violate Benn’s rights by not                itself violate substantive due process. See
granting him a hearing before he was                Doby v. DeCrescenzo, 171 F.3d at 871 n.
committed.                                          4 (“[T]he MHPA authorizes seizures that
                                                    are ‘reasonable’ under the Fourth
        Third, we see no evidentiary basis          Amendment [and so] the MHPA meets the
in the record for Benn’s claim that MCES            rationality test imposed by substantive due
maintains a policy that denied him his due          process analysis.”)
process rights. On the contrary, MCES
guidelines track the MHPA, which does                       In this case, none of the specific
not deny due process. See Monell v.                 conduct that Benn alleges shocks the
Department of Social Services, 436 U.S.             conscience. First, Benn’s complaints
658, 694 (1978). In sum, we hold that               about Drs. Zerby or Mukerjee are
Benn’s procedural due process rights were           insufficient. Benn claims that Drs. Zerby
not violated.                                       a n d M u k e r j e e e x h i b i te d “ t o t a l
                                                    incompetenc[e] . . . . [by failing] to
                     2.                             understand that plaintiff was showing no
                                                    suicidal ideation which merited his
       Benn appears to argue that his               involuntary confinement.”              B r. of
substantive due process rights were                 Appellants at 13. But whether or not Drs.
violated in three ways. First, he claims            Zerby and Mukerjee properly analyzed
th a t D r s . Zerb y and M uker je e               Benn’s condition, their conduct did not
incompetently failed to recognize that he           violate substantive due process. In view of
was not suicidal. Second, he asserts that           the events that led to Benn’s commitment
he was kept in a room without a toilet.             and the steps taken after his arrival at
Third, he claims that he was forcibly given         MCES, the doctors’ conduct was not
antipsychotic medication.                           conscience-shocking.

       “[I]n a due process challenge to                    Second, Benn’s allegation that he
executive action, the threshold question is         was temporarily kept in a room without a
whether the behavior of the governmental            toilet is insufficient without further
officer is so egregious, so outrageous, that        aggravating evidence to meet the high

                                               11
standard needed to state a substantive due                 m i s c onduct or gro ss
process violation. As the District Court                   n e g l i g en c e , a c o u n ty
pointed out, Benn failed to produce any                    administrator, a director of a
evidence that the defendants were aware                    facility, a physician, a peace
that he needed to use a bathroom or that                   o f f ic e r or a ny o t h er
“MCES had a custom or policy of refusing                   authorized person who
to allow patients to use the bathroom.”                    participates in a decision
App. 31.                                                   that a person be examined or
                                                           treated under this act, or that
       Third, the administration of                        a person be discharged, or
antipsychotic drugs is not shocking to the                 placed under partia l
conscience under the circumstances                         hospitalization, outpatient
present here.       We have held that                      care or leave of absence, or
authorities may administer antipsychotic                   that the restraint upon such
drugs over a patient’s objection “where the                pers o n b e o t h e rwis e
decision is a product of the authorities’                  reduced, or a county
professional judgment.”          White v.                  administrator or other
Napoleon, 897 F.2d 103, 112 (3d Cir.                       authorized person who
1990). See also Rennie v. Klein, 720 F.2d                  denies an application for
266, 269 (3d Cir. 1983). In this case,                     voluntary treatment or for
however, as the District Court noted, Benn                 involunta r y e me r ge ncy
has not alleged that he objected to the                    examination and treatment,
administration of the medication. App. 32.                 shall not be civilly or
Under these circumstances, Dr. Zerby’s                     criminally liable for such
conduct did not shock the conscience.                      decision or for any of its
                                                           consequences.
                    III.
                                                    50 Pa. Stat. Ann. § 7114(a). As the
       Benn next contends that the District         District Court properly found, Wilcox, a
Court erred in granting summary judgment            crisis-line counselor who had no effect on
in favor of the defendants on his state tort        the decision to commit Benn, is not
claims. We disagree.                                covered under the strict language of the
                                                    immunity provision. It is clear, however,
                    A.                              that the remaining defendants qualify for
                                                    immunity if they did not engage in “willful
       The MHPA gives broad immunity                misconduct or gross negligence.” See
to physicians and others who participate in         Doby v. DeCrescenzo, 171 F.3d 858, 875
the involuntary commitment process:                 (3d Cir. 1999).

       In the absence of willful                           Under Pennsylvania law, “gross

                                               12
negligence” is “more egregiously deviant                     ps yc h i a t r i c t r e a tm e n t ,
conduct than ordinary carelessness,                          especially as they relate to
inadvertence, laxity or indifference.”                       involuntary commitment
Rather, gross negligence requires conduct                    a n d f i n d t h at t h e se
that is “flagrant, grossly deviating from the                Depositions show clear and
ordinary standard of care.” Alrbight v.                      convincing evidence that
Abington Memorial Hospital, 696 A.2d                         M r .          B e nn        w a s
1159, 1164 (Pa. 1997).               “Willful                inappropriately involuntarily
misconduct” occurs when “the danger to                       committed and held in the
the plaintiff, though realized, is so                        p s yc h i a t r i c h o s p i t a l,
recklessly disregarded that, even though                     s u b j e c te d t o a b u s i v e
there be no actual intent, there is at least a               mistreatment, and a victim
willingness to inflict injury, a conscious                   of medical malpractice and
indifference to the perpetration of the                      negligence.
wrong.” Krivijanski v. Union R. Co., 515
A.2d 933, 937 (Pa. Super. Ct. 1986).                         We agree with the District Court
                                                      that the assertions in this report do not
         Here, none of the defendants                 comport with the facts and that,
committed either gross negligence or                  considering the record as a whole, no
willful misconduct. The only evidence                 reasonable jury could find that the doctors
that Benn puts forward to show such                   acted with gross negligence or willful
behavior consists of the two expert reports           misconduct. The doctors all participated
of his treating psychiatrist, Dr. Bornfriend.         in meetings, took careful notes, and
In her second report, Dr. Bornfriend                  prescribed a careful routine and course of
alleges:                                              treatment for Benn. He was released as
                                                      soon as they found him to be safe. Their
       There appears to be                            behavior did not meet the legal definition
       evidence, however, that                        of either gross negligence or willful
       some of the mistreatment                       misconduct. Since none of the doctors
       Mr. Benn endured appeared                      committed any such conduct, we will also
       secondary to even more                         affirm the dismissal of the related claims
       malignant causes [than                         against MCES. See Farago v. Sacred
       simple negligence], raising                    Heart Hospital, 562 A.2d 300, 303 (Pa.
       i s s u e s o f d e l ib e r a te              1989).
       indifference, arrogance,
       condescension, and punitive                                            B.
       hostility from these doctors.
       I find shocking the level of                          Finally, we hold that the District
       disregard for standard                         Court properly dismissed the state tort
       p r a c t ic e s i n v o l v e d in            claims against Eileen Wilcox. There is no

                                                 13
evidence whatsoever that would even
begin to support any of those claims
against Wilcox.

                   IV.

       For the reasons explained above,
we affirm the order of the District Court.




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