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Precedential or Non-Precedential: Precedential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
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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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