NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 22-2632

__________

SUZANNE B. SMITH,

Appellant

v.

COMMONWEALTH OF PENNSYLVANIA;

MONTGOMERY COUNTY EMERGENCY SERVICES,

a Non-Profit State Actor for Montgomery County, PA;

CITY OF CHELTENHAM TOWNSHIP, PA; TINA PERGINE;

KAREN BROADNAX, as yet Unnamed Co-Conspirators 

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2:21-cv-05473)

District Judge: Honorable Karen S. Marston

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 13, 2023

Before: JORDAN, GREENAWAY, Jr., and NYGAARD, Circuit Judges

(Opinion filed: May 10, 2023)

___________

OPINION*

___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Suzanne B. Smith appeals pro se from an order of the United States District Court 

for the Eastern District of Pennsylvania granting the defendants’ motions to dismiss her 

complaint, which raised claims stemming from Smith’s involuntary examination under 

Pennsylvania’s Mental Health Procedures Act (MHPA). We will affirm.

Because the parties are familiar with the background of this case, we will revisit 

the facts only as they are relevant to our analysis. Smith, who lived in an apartment 

complex, was involved in a years-long dispute with her downstairs neighbor, Karen 

Broadnax and Broadnax’s family. After Smith had made numerous noise complaints 

about the Broadnaxes, Karen Broadnax filed an application under the MPHA for an 

emergency examination of Smith. See 50 P.S. § 7302.1 In that application, Broadnax 

alleged that:

Smith has been calling the police and stating we are sending electrical beams 

through the ceiling to harm her. Has been recording conversations in my home 

through a hole in the floor. Has been standing outside my door listening to us. Is 

telling police that we have a private detective watching her. Was filming me this 

morning, 6/26/21 as I left for work. Keeps trying to turn my doorknob. She does 

these things after I leave out of my home when my daughter is home alone with 

her kids. I work at Friends Hospital and she is having paranoid delusions and I 

feel that she may act on it.

(ECF 68-2, at 3-4 of 29.) A county delegate, Tina Pergine, signed a warrant authorizing 

an examination of Smith. At 9:00 p.m., three Cheltenham Township police officers and 

personnel from Montgomery County Emergency Services (MCES) entered Smith’s 

1 Such applications, and the resulting warrants, are often referred to by section of the Act 

from which they are derived, “302.” 
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apartment, stated that they had a warrant for her to be detained for a mental health 

evaluation, and escorted her to an ambulance. Smith was transported to the MCES

facility, where she met with a doctor who asked her questions and read to her Broadnax’s 

§ 7302 application statement. Smith denied the allegations and provided a character 

reference. After MCES staff spoke to that reference, Smith was released. She returned 

home at 2:30 a.m. 

Smith filed a complaint against the Commonwealth of Pennsylvania, Cheltenham 

Township, MCES, Pergine, and Broadnax. (ECF 1.) She raised claims under 42 U.S.C. 

§ 1983, as well as state and common law. The defendants filed motions to dismiss. (ECF 

55; 67; 70.) Smith opposed those motions. (ECF 76; 77; 78; 80.) She also moved to 

amend her complaint to include a defamation claim and to add Montgomery County as a 

defendant. (ECF 79.) The District Court granted the defendants’ motions to dismiss, 

holding that the Commonwealth was immune from suit; that the Township could not be 

liable because its officers were merely enforcing state law and were not required to 

perform an independent investigation before serving the warrant; that MCES is not a state 

actor for purposes of § 1983, did not falsely imprison Smith, and did not violate her 

common law right to refuse medical treatment; and that Pergine was immune under the 

MHPA. Smith v. Pennsylvania, 2022 WL 3139854 (E.D. Pa. Aug. 4, 2022). The District 

Court also denied Smith’s request to amend her complaint. Id. at *15. Smith timely 

appealed. (ECF 90.)

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise
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de novo review over the order granting the defendants’ motions to dismiss. Chavarriaga 

v. N.J. Dep’t of Corr., 806 F.3d 210, 218 (3d Cir. 2015). To avoid dismissal, “a 

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief 

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and 

internal quotation omitted). “A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Id. We review for abuse of discretion the denial of a 

motion that seeks leave to file an amended complaint. See Winer Fam. Tr. v. Queen, 503 

F.3d 319, 325 (3d Cir. 2007).

In her brief, Smith states that the District Court “did an excellent job writing the 

dismissal explanation[,]” but claims that “[s]ome things were missed or inconsistent in 

the explanation.” Appellant’s Br. 3. In particular, Smith challenges the District Court’s 

conclusion that Pergine, the county delegate who authorized the warrant, was immune 

under the MHPA. Appellant’s Br. 6-7. The MHPA provides that “[i]n 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.” 50 P.S. § 7114(a).

“Pennsylvania law defines gross negligence in the context of the MHPA as ‘facts 

indicating more egregiously deviant conduct than ordinary carelessness, inadvertence, 

laxity or indifference.... The behavior of the defendant must be flagrant, grossly 
5

deviating from the ordinary standard of care.’” Doby v. DeCrescenzo, 171 F.3d 858, 875 

(3d Cir. 1999) (quoting Albright v. Abington Mem’l Hosp., 696 A.2d 1159, 1164 (Pa.

1997)). Smith suggested that Pergine was grossly negligent because she failed to 

investigate the claims in the warrant application. But Pergrine was permitted to issue the 

warrant based on the allegations in the application, without verifying their validity. Id. at 

872 (stating that “[b]ecause the section 7302 procedures exist to respond to emergency 

cases, it is reasonable for the county delegate ... to issue such warrants without 

independent investigation”). And although Smith asserts that “[g]iving [Pennsylvania] 

mental health workers blanket immunity ... is definitely a bad idea,” Appellant’s Br. 6, 

“our task is to apply the Constitution and the precedents of the Supreme Court, regardless 

of whether the result is one we agree with as a matter of first principles or policy.” Heller 

v. District of Columbia, 670 F.3d 1244, 1296 (D.C. Cir. 2011) (Kavanaugh, J., 

dissenting). 

In addition, Smith alleges that the District Court improperly denied her claim that 

the MCES violated her common law right to refuse medical treatment. Appellant’s Br. 9. 

Pennsylvania courts have recognized that individuals generally have a right to refuse 

medical treatment. See, e.g., In re Duran, 769 A.2d 497, 503 (Pa. Super. Ct. 2001). But 

that right may be outweighed by commonly recognized state interests, including 

protection of third parties. In re Fiori, 673 A.2d 905, 910 (Pa. 1996). Although the 

protection of third parties primarily focuses on the patient’s dependents, id., the state 

clearly also has an interest in shielding others who may be threatened or harmed by the 
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patient’s conduct. See Duran, 769 A.2d at 504 (stating that “the state has a substantial 

interest in protecting its citizens from each other”); Fosmire v. Nicoleau, 551 N.E.2d 77, 

81 (N.Y. 1990) (“When the individual’s conduct threatens injury to others, the State’s 

interest is manifest and the State can generally be expected to intervene.”). Here, Pergine 

issued a warrant after necessarily determining that Karen Broadnax, a “responsible 

party,” set “forth facts constituting reasonable grounds to believe” that Smith was 

“severely mentally disabled and in need of immediate treatment.” 50 P.S. 7302(a)(1). 

Those grounds, as described in Broadnax’s warrant application, included Smith calling

the police and stating that Broadnax and her family were sending electrical beams 

through the ceiling to harm Smith, recording and filming the Broadnax family, listening

to the Broadnax family by standing outside their apartment, recording the family through 

a hole in the floor, repeatedly trying to enter the Broadnax apartment, and telling the 

police that the Broadnax family hired a private detective to watch her. Broadnax feared 

that Smith would act on her “paranoid delusions.” Under these circumstances, we 

conclude that the Commonwealth’s interest in protecting Broadnax and her family 

outweighed any right that Smith had to refuse the mental health evaluation.2 

Finally, Smith argues that she should have been permitted to amend her complaint. 

Appellant’s Br. 5-6. We conclude, however, that it would have been futile for Smith to 

2 We note that the MCES honored Smith’s refusal to authorize access to her medical 

records and her rejection of an offer of voluntary mental health treatment. (ECF 1, at 18-

19.)
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amend her complaint in the manner specified in her brief.3 For instance, Smith alleges 

that she should have been permitted to change the complaint to specify that MCES, the 

Township, and Pergine were “acting under color of state law.” Contrary to Smith’s 

belief, however, that simple change would not have affected “whether certain charges 

may be dismissed ....” Appellant’s Br. 5. Smith also emphasizes that her amended 

complaint addressed an issue concerning whether she made proper service on the 

Commonwealth. Id. But, as the District Court properly explained, it did not need to 

analyze the propriety of service because it concluded that the Commonwealth was 

immune from suit. Smith v. Pennsylvania, 2022 WL 3139854, at *6 n.8. Furthermore, 

Smith’s attempt to withdraw her claim for damages against the Commonwealth was 

unnecessary because, regardless of the relief sought, a civil suit may not be brought in 

federal court against a state unless the state waives its immunity from suit, which it did 

not do here. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). 

3 Smith does not challenge the District Court’s denial of her request to amend the 

complaint to add Montgomery County as a defendant and to bring a defamation claim 

against MCES, Pergine, and Broadnax. See M.S. ex rel. Hall v. Susquehanna Twp. Sch. 

Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020) (noting that arguments not raised in an 

opening brief on appeal are forfeited). We also deem forfeited Smith’s broad challenge 

to the constitutionality of the MHPA, for which she provides only a conclusory statement

and no citation to relevant authority. Id. Smith does argue that § 7302 is 

unconstitutionally vague because it allows a person to be taken to a mental health facility 

for further evaluation based on “ad-hoc allegations of violations of codes of conduct that 

are unwritten and not codified ....” Appellant’s Br. 7. We conclude, however, that 

Smith’s complaint, even liberally construed, did not meaningfully develop a vagueness 

challenge to the MPHA, and we will not examine her vagueness challenge for the first 

time on appeal. See Brown v. Phillip Morris Inc., 250 F.3d 789, 799 (3d Cir. 2001).
8

Accordingly, because the proposed changes to the complaint that Smith identified in her 

brief would not have affected the denial of her claims, leave to amend was not warranted. 

For the foregoing reasons, we will affirm the judgment of the District Court.