2004 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Benn v. Unvrsl Health Sys" (2004). 2004 Decisions. Paper 548.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/548
PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

____________

No. 01-3450

____________

DONALD BENN,

 Appellant

v.

UNIVERSAL HEALTH SYSTEM,

INC.; HORSHAM CLINIC;

RAMESH ELURI, DR.; EILEEN

WILCOX; MONTGOMERY

COUNTY MH-MR EMERGENCY

SERVICE, d/b/a MONTGOMERY

COUNTY EMERGENCY SERVICE,

INC.; VENU MUKERJEE, DR.,

Individually, severally, jointly and/or in

the alternative;

STEPHEN ZERBY, M.D.;

MOHAMMAD QUASIM, DR., C/O

MONTGOMERY

COUNTY EMERGENCY SERVICE,

INC. 50 BEECH DRIVE

NORRISTOWN, PA

19401 INDIVIDUALLY, SEVERALLY,

JOINTLY AND/OR IN THE

ALTERNATIVE

___________________

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

District Court Judge: Honorable Mary A.

McLaughlin

(D.C. No. 99-cv-6526)

____________________

Submitted Under Third Circuit LAR

34.1(a)

December 4, 2003

Before: SLOVITER, ALITO, Circuit

Judges, and OBERDORFER,* District

Court Judge

(Opinion Filed: June 17, 2004)

ROSS BEGELMAN

Begelman & Orlow

411 Route 70 East

Suite 245

Cherry Hill, New Jersey 08034

Counsel for Appellant

KEVIN J. O’BRIEN

Marks, O’Neill, O’Brien, & Courtney

1880 JFK Boulevard

Suite 1200

Philadelphia, PA. 19103

KENNETH D. POWELL, JR.

Rawle & Henderson

334 West Front Street

2

nd Floor

Media, PA. 19063

CHARLES W. CRAVEN

MARION H. GRIFFIN

 

*

 The Honorable Louis F. Oberdorfer,

United States District Judge for the

District of Columbia, sitting by

designation.
2

Marshall, Dennehey, Warner, Coleman &

Goggin

1845 Walnut Street

16th Floor

Philadelphia, PA 19103

Counsels for Appellees

____________________

OPINION OF THE COURT

____________________

Alito, Circuit Judge:

This case concerns Donald Benn’s

short-term involuntary commitment to a

psychiatric facility for an emergency

examination. After his release, Benn

brought federal and state claims against

those involved in his commitment. The

District Court granted summary judgment

in favor of all defendants. We affirm.

I.

Prior to the events at issue here,

Donald Benn was under the care of

therapist Dr. Jack Hartke and psychiatrist

Dr. Lynn Bornfriend, both of whom had

treated him for depression and posttraumatic stress disorder. The treatment

included anti-depressant medication.

On August 15, 1998, Benn

telephoned the Horsham Clinic

(“Horsham”) three times. Horsham, a

mental healthcare facility in Montgomery

County, Pennsylvania, is wholly owned by

Universal Health System, Inc. (“UHS”).

Each time Benn called Horsham, he spoke

to Eileen Wilcox, an experienced crisisline counselor. Benn told Wilcox that he

was looking for treatment for posttraumatic stress disorder and was

interested in Horsham. Benn admits that

during one conversation he told Wilcox

that he was driving over the TaconyPalmyra Bridge. Wilcox claims that Benn

told her he had stopped his car and had

considered jumping off the bridge. Benn

denies this. Wilcox told Benn that

Horsham did not make regular outpatient

appointments but that they would assess

his need for care if he came in.

Benn arrived at Horsham late that

evening and was quickly interviewed by

psychiatrist Dr. Ramesh Eluri. The

interview lasted 40 minutes, and Dr. Eluri

claims that, during the interview, Benn

admitted to being depressed and suicidal.

Benn asserts that he never told Dr. Eluri

that he was suicidal and that Dr. Eluri

misunderstood him because of Dr. Eluri’s

poor English. After the interview, Dr.

Eluri told Wilcox that he was concerned

for Benn’s safety and that a petition for

involuntary commitment might be

necessary because Benn refused to seek

treatment. Benn, however, did agree to

sign a “Contract for Safety,” which stated:

I, Donald Benn on August

15, 1998 agreed to keep

myself safe and that if I feel

any increase of suicidal

thoughts or feeling I will

contact Horsham Clinic [or]

the police.” Below the
3

contract, Benn w rote:

“While there is no doubt

wha t-so-ever that my

mental/emotional health has

b e e n GREATL Y

compromised I feel as

certain as certain can be that

a few more days won’t hurt

(too much).” 

Wilcox asked Benn to remain at the clinic

while Dr. Eluri looked over the contract,

but Benn refused and left.

Upon seeing the contract, Dr.

Eluri’s concern about Benn’s safety grew,

and he filed an application under a

provision of Pennsylvania’s Mental Health

Procedures Act (MHPA), 50 Pa. Stat. Ann.

§ 7302(a), requesting that Benn be

examined to determine his need for

treatment. See App. 240-42. The

application stated:

[Benn] said he had seriously

thought about jumping from

Coney Bridge [sic], while he

was driving. In fact, he

stopped the car. He admits

feeling suicidal now and

feels unsafe and unstable.

He also believes that his

m e ntal healt h i s

compromised and needs

hospitalization. He also

says he had suicidal

thoughts consistently for the

past few weeks. He is

vague about his attempts...

In my assessment, Pt. is very

suicidal, feels unsafe and

dangerous to himself. He

needs inpatient treatment.

App. 242.

The petition was reviewed by the

county administrator, who authorized the

police to take Benn into custody. The

police went to Benn’s home, and he was

transported by ambulance to Montgomery

Co unty Emergency Service Inc.

(“MCES”), a private, not-for-profit

psychiatric hospital in Norristown,

Pennsylvania, that, by contract, handles all

involuntary and emergency psychiatric

confinements in the county. 

Upon arrival at MCES, Benn was

placed in an isolated waiting room. He

was then seen by Dr. Stephen Zerby, an

MCES psychiatrist, who conducted an

hour-long interview and decided, based on

the interview and Dr. Eluri’s petition, that

Benn should be admitted for an emergency

examination for the period permitted by

the MHPA, 50 Pa. Stat. Ann. § 7302(d),

i.e., not more than 120 hours. App. 244.

The next day, August 16, Benn was

interviewed by Dr. Mohammad Quasim,

another MCES psychiatrist, who continued

the treatment started by Dr. Zerby. The

following day, August 17, Benn was seen

by Dr. Venu Mukerjee, yet another MCES

psychiatrist, who found him to have

“limited insight and obvious[] difficulties

with impulse control, where he might have

verbalized suicidal intent while at

Horsham . . . . His insight is limited and

his judgment is definitely impaired.” App.
4

21. On August 18, Dr. Mukerjee noted

that “[Benn] is now contracting for safety

and has never been suicidal since his

admission here.” He was then released.

App. 22.

During his time at MCES, Benn

was in contact with his common-law wife,

his treating therapist, a lawyer, and a

friend. Benn claims that his detention

room had no toilet and that he was forced

to urinate on the walls.

In December 1999, Benn filed this

action in the United States District Court

for the Eastern District of Pennsylvania

against Wilcox, Dr. Eluri, Horsham, UHS,

MCES, Dr. Mukerjee, Dr. Zerby, and Dr.

Quasim. Benn asserted claims under 42

U.S.C. § 1983 for alleged violations of his

procedural and substantive due process

rights, as well as numerous tort claims

under Pennsylvania law, to wit,

negligence/malpractice, intentional

infliction of emotional distress, assault and

b a tte ry, neglig ence , and f als e

imprisonment. In addition, Benn sought

punitive damages against all defendants.

The parties filed cross-motions for

summary judgment. In July 2001, the

District Court granted summary judgment

in favor of all defendants. The Court held

that Dr. Eluri, Wilcox, Horsham, and UHS

were not state actors and thus could not be

sued under §1983. In addition, assuming

for the sake of argument that MCES, Dr.

Mukerjee, Dr. Zerby, and Dr. Quasim were

state actors, the Court held that they did

not violate Benn’s right to substantive or

procedural due process. The Court also

granted summary judgment on the state

tort claims for all parties except Wilcox,

because it found that these parties were

immune from such claims under Section

114 of the MHPA, 50 Pa. Stat. Ann.

§7114. As for Wilcox, the Court found

that there was no evidence against her to

support the state tort claims. Benn

appealed.

II.

We turn first to Benn’s § 1983

claim. Section 1983 provides in relevant

part:

Every person who, under

color of an y statute,

o rdinance, regu la tion,

custom, or usage, of any

State or Territory or the

District of Columbia,

subjects, or causes to be

subjected, any citizen of the

United States or other

person with in th e

jurisdiction thereof to the

deprivation of any rights,

privileges, or immunities

secured by the Constitution

and laws, shall be liable to

the party injured in an action

at law, suit in equity, or

other proper proceeding for

redress.

To establish a claim under §1983, Benn

must show that the defendants 1) were
5

state actors1 who 2) violated his rights

under the Constitution or federal law.

Flagg Bros., Inc. v. Brooks, 436 U.S. 149,

155 (1978).

A.

Benn contends that Horsham, UHS,

Dr. Eluri, and Wilcox2 (the “Horsham

defendants”) were state actors because

they were acting pursuant to the MHPA.

Under the MHPA, a physician or other

“responsible party” may file an application

that may lead to the issuance of a warrant

authorizing a person who is “severely

mentally disabled and in need of

immediate treatment”3 to be taken to a

designated facility for an emergency

examination. 50 Pa. Stat. Ann. §

7302(a)(1).4 In addition, a physician or

 

1

“In cases under § 1983, ‘under color’

of law has consistently been treated as the

same thing as the ‘state action’ required

under the Fourteenth Amendment.”

Rendell-Baker v. Kohn, 457 U.S. 830,

838 (1982); see also Dluhos v. Strasberg,

321 F.3d 365, 374 (3d Cir. 2003).

 

2

For the purpose of summary judgment,

MCES, Dr. Mukerjee, Dr. Quasim, and Dr.

Zerby conceded that they were “state

actors,” and therefore we do not decide

that question.

 

3A person is “severely mentally

disabled” “when, as a result of mental

illness, his capacity to exercise selfcontrol, judgment and discretion in the

conduct of his affairs and social relations

or to care for his own personal needs is so

lessened that he poses a clear and present

danger of harm to others or to himself.”

50 Pa. Stat. Ann § 7301(a).

 

4

50 P.S. § 7302(a) provides as follows:

(a) Application fo r

Examination.--Emergency

e xaminatio n may b e

undertaken at a treatment

facility upon th e

certification of a physician

stating the need for such

examination; or upon a

warrant issued by the county

administrator authorizing

such exam ination ; or

without a warrant upon

application by a physician or

other authorized person who

has personally observed

conduct showing the need

for such examination.

(1) Warrant for Emergency

Examination.--Upon written

application by a physician or

other responsible party

sett ing 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
6

other person who has observed a person

engaging in conduct that provides

reasonable grounds to believe that the

person is “severely mentally disabled and

in need of treatment” may take the person

to an approved facility for such an

examination. 50 Pa. Stat. Ann. § 7302(b).

At the facility, the individual who brought

the person thought to need treatment must

make “a written statement setting forth the

grounds for believing the person to be in

need of examination.” 50 Pa. Stat. Ann. §

7302(a)(2). A person taken to a facility

must be examined within two hours, and if

it is determined that the person is “severely

mentally disabled and in need of

immediate treatment,” the treatment must

begin immediately. 50 Pa. Stat. Ann. §

7302(b). If it is determined at any time

that the person is not in need of treatment,

the person must be discharged, and in any

event the person must be released within

120 hours unless a certification for

extended involuntary emergency treatment

is filed under 50 Pa. Stat. Ann. § 7303. In

this case, the District Court held that,

because the Horsham defendants were

merely involved in the application for

Benn’s commitment, they were not state

actors. 

In Brentwood Acad. v. Tennessee

Secondary Sch. Athletic Ass’n, 531 U.S.

288, 296 (2001), the Supreme Court noted

that the criteria for determining whether

state action is present “lack rigid

simplicity,” but the Court identified factors

that bear on the question. The Court

wrote:

We have, for example, held

that a challenged activity

may be state action when it

results from the State's

exercise of "coe rcive

power," [Blum v. Yaretsky,

457 U.S. 991, 1004 (1982)],

when the State provides

"significant encouragement,

either overt or covert," ibid.,

or when a private actor

operates as a "willful

participant in joint activity

with the State or its agents,"

person to the facility

specified in the warrant.

(2) Emergency Examination

Without a Warrant.--Upon

personal observation of the

conduct of a person

constituting reasonable

grounds to believe that he is

severely mentally disabled

and in need of immediate

treatm ent, a nd (sic )

physician or peace officer,

or anyone authorized by the

county administrator may

take such person to an

approved facility for an

emergency examination.

Upon arrival, he shall make

a written statement setting

forth the grounds for

believing the person to be in

need of such examination.

.
7

[Lugar v. Edmondson Oil

Co., 457 U.S. 922, 941

(1982)] (Internal quotation

marks omitted). We have

treated a nominally private

entity as a state actor when

it is controlled by an

"agency of the State,"

Pennsylvania v. Board of

Directors of City Trusts of

Philadelphia, 353 U.S. 230.

231 (1957) (per curiam),

when it has been delegated a

public function by the State,

cf., e.g., [West v. Atkins,

487 U.S. 42, 56 (1988)];

Edmonson v. Leesville

Concrete Co., 500 U.S. 614,

627-628 (1991), when it is

" e ntw i n e d wit h

governmental policies," or

when g over n m ent is

"ent wine d in [its ]

management or control,"

Evans v. Newton, 382 U.S.

296, 299, 301 (1966). 

531 U.S. at 295. 

In the present case, none of these

factors points toward the presence of state

action. First, the MHPA, on which Benn

predicates his state action argument, did

not coerce the Horsham defendants to file

the application that led to Benn’s

commitment. Nor did the MHPA provide

“significant encouragement, either overt or

covert.” Blum, 457 U.S. at 1004.

Although the MHPA permits a physician

or other “responsible party” to file an

application for an emergency examination,

we see nothing in the MPHA that compels

or even significantly encourages the filing

of an application. See Rockwell v. Cape

Cod Hosp., 26 F.3d 254, 258 (1

st Cir.

1994) (no compulsion where state law

merely permits physicians to petition for

involuntary commitment but does not

mandate that they do so); Harvey v.

Harvey, 949 F.2d 1127, 1131 (11th Cir.

1992) (no compulsion or encouragement

where state statutes not enacted to

encourage commitment); Spencer v. Lee,

864 F.2d 1376,1379 (7th Cir.1989) (same);

Janicsko v. Pellman, 774 F.Supp. 331,

338-39 (M.D.Pa.1991) (“this court cannot

hold that the standards set by the MHPA

rise to the level of coercion”), aff'd, 970

F.2d 899 (3d Cir. 1992) (table).

Second, the Horsham defendants

did not operate as “willful participant[s] in

joint activity with the State or its agents”

under Lugar, 457 U.S. at 941. In Lugar,

creditors moved for a prejudgment writ of

attachment, and the writ was issued by a

court clerk and executed by a sheriff. Id.

at 924. The debtor whose property was

attached brought an action asserting two §

1983 claims against the creditors. Count

one claimed that the prejudgment

attachment process permitted by state law

was “procedurally defective under the

Fourteenth Amendment.” Id. at 941.

Count two alleged that the creditors had

invoked the attachment process in a way

that was “‘malicious, wanton, willful,

opressive [sic]” and unlawful under state

law. Id. at 940 (brackets in Supreme Court

opinion). The Supreme Court held that the
8

first count stated a § 1983 claim because

“the procedural scheme” was “the product

of state action.” Id. By contrast, the Court

concluded that the second count did not

satisfy the state action requirement

because “private misuse of a state statute

does not describe conduct that can be

attributed to the State.” Id. The Court

stated: “[t]hat [the creditor] invoked the

statute without the grounds to do so could

in no way be attributed to a state rule or

decision.” Id. at 940. 

In this case, Benn’s constitutional

claims against the Horsham defendants

parallel the claim found to be defective in

Lugar. As Benn’s Memorandum of Law

in Support of his Motion for Summary

Judgment makes clear, Benn’s theory was

that these defendants violated his

constitutional rights because they allegedly

did not comply with the MHPA. See App.

428-429. The portion of Benn’s

Memorandum addressing his constitutional

claims begins by stating:

Defendants had [a] duty and

obligation to follow the

rules and standards of the

Pennsylvania Mental Health

Procedures Act. Such act

governed the circumstances

and procedures surrounding

the extreme action of

involuntarily committing an

individual.

Id. at 428. The Memorandum then adds:

Defendants clearly failed to

act according to the Act, and

the high duty placed upon

them. Such intentional,

reckless, and gross disregard

of the rules and standards

they were bound by, the

Defendants intentionally

committed a horrible act

upon Plaintiff.

Id. at 429. 

The crux of Benn’s complaint about

the conduct of the Horsham defendants

appears to be that they conducted a

“seriously defective evaluative process,”

Appellant’s Br. at 10, and that he did not

meet the standard for emergency

commitment under the MHPA. See App.

429 (Memorandum in Support of

Summary Judgment); id. at 263 (expert

report). Benn’s constitutional claim

against Horsham defendants is thus

precisely the type of claim that Lugar

found to be inadequate to establish state

action. 

Third, this is clearly not a case in

which nominally private persons were

controlled by an agency of the

Commonwealth. Benn makes no such

allegations. 

Fourth, the conduct in question here

– applying for Benn’s emergency

commitment – is not a “public function”

that the MHPA delegated to private

persons. In considering the “public

function” issue, we must ask whether the

challenged action relates to a function that
9

has been “traditionally the exclusive

prerogative of the State.” Jackson v.

Metropolitan Edison Co., 419 U.S. 345

(1974). Here, we have no basis for

concluding that petitioning for involuntary

confinement is or ever was the exclusive

prerogative of the state, either in

Pennsylvania or in the country in general.

See Rockwell v. Cape Cod Hosp., 26 F.3d

at 259 (“The history of involuntary

treatment of the mentally ill in

M a ssach usetts demonstrates that

involuntary treatment has by no means

been the exclusive prerogative of the

State.”); Spencer v. Lee, 864 F.2d 1376,

1380-81(7th Cir. 1989)(holding that civil

commitment in Illinois was not a

traditional and exclusive public function);

Bodor v. Horsham Clinic, Inc., 1995 WL

424906 at *8 (E.D.Pa. July 19, 1995)

(Pennsylvania).

Fifth, this case does not involve

“entwinement” within the meaning of

Brentwood. There, the Court held that an

interscholastic athletic association was

entwined with the state where the great

majority of the association’s member

schools were public, representatives of the

schools acting in their official capacities

selected members of the association’s

governing bodies, state officials also sat on

those bodies in an ex officio capacity, the

association was largely financed by gate

receipts from member-school tournaments,

and association employees participated in

the state retirement system. 531 U.S. at

298-300. In this case, Benn does not

allege that the Commonwealth was

“entwined” in any comparable sense with

the Horsham defendants. Thus, none of

the factors identified in Brentwood

supports a finding of state action in this

case. 

Nor does this case satisfy the

“symbiotic relationship” test that derives

from Burton v. Wilmington Parking

Authority, 365 U.S. 715 (1961). After

Brentwood, our Court, sitting en banc,

held that the “symbiotic relationship” test

continues to provide an additional, albeit

“narrow,” basis for finding that private

action may fairly be attributed to the state.

Crissman v. Dover Downs Entertainment,

Inc., 289 F.3d 231, 242 (3d Cir. 2002).

This theory, however, has no application

here. A “symbiotic relationship” demands

“a close association of mutual benefit”

between the state and the private entity or

person. Crissman, 289 F.3d at 240. In

Burton, such a relationship existed

between a city that owned a parking

structure and a restaurant to which it

leased space. In this case, there is no

indication that the Horsham defendants

made any profit from the petition to

commit Benn, and there certainly is no

evidence that the government received any

tangible benefit from Horsham, save a

possible increase in the general welfare.

“That a private entity performs a function

which serves the public does not make its

acts state action.” Rendell-Baker v. Kohn,

457 U.S. 830. Thus, neither the factors

cited in Brentwood nor the symbiotic

relationship theory shows the presence of

state action in this case.

The decisions of other courts of
10

appeals and those of district courts in this

circuit also support the conclusion that

persons who petition for the involuntary

commitment of others are not state actors.

See Rockwell v. Cape Cod Hosp., 26 F.3d

at 257-58; Harvey v. Harvey, 949 F.2d

1127, 1131 (11th Cir.1992); Spencer, 864

F.2d at 1380-81; Doby v. Decrescenzo,

1996 WL 510095 (E.D.Pa. Sept. 9, 1996),

aff’d, 118 F.3d 1575 (3rd Cir. 1997)

(table); Bodor v. Horsham Clinic, Inc.,

supra (thoroughly analyzing the “state

actor” question); Savacool v. Delaware

County Department of Mental Health,

1993 WL 21209, *6 (E.D.Pa. Jan.25,

1993); Janicsko v. Pellman, 774 F.Supp.

331, 339 (M.D.Pa.1991), aff'd, 970 F.2d

899 (3d Cir.1992).

Our analysis leads to the same

result. We thus hold that the Horsham

defendants were not state actors. 

B.

Benn claims that MCES, Dr.

Mukerjee, Dr. Zerby, and Dr. Quasim, all

of whom conceded that they were state

actors for purposes of the motion for

summary judgment, violated both his

procedural and substantive due process

rights. We disagree.

1.

Benn argues that MCES and its

doctors violated procedural due process by

failing to comply with the MHPA and by

failing to grant him a hearing before he

was involuntarily confined. This argument

has no merit.

First, even if these defendants

violated the MHPA, this would not

establish a §1983 claim. “The plain

language of section 1983, interpreted and

underscored by the Supreme Court in

Maine v. Thiboutot, 448 U.S. 1 (1980),

solely supports causes of action based

upon violations, under the color of state

law, of federal statutory law or

constitutional rights. Section 1983 does

not provide a cause of action for violations

of state statutes.” Brown v. Grabowski,

922 F.2d 1097, 1113 (3d Cir. 1990); see

also Flagg Bros., Inc. v. Brooks, 436 U.S.

149, 155 (1978).

Second, in an emergency situation,

a short-term commitment without a

hearing does not violate procedural due

process. In a similar case dealing with the

MHPA, we observed that “[i]t may be

reasonable . . . 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.”

Doby v. DeCrescenzo, 171 F.3d 858, 870

(3d. Cir. 1999); see also Project Release v.

Prevost, 722 F.2d 960, 974 (2d Cir. 1983);

Covell v. Smith, 1996 WL 750033

(E.D.Pa. Dec. 30 1996); Luna v. Zandt,

554 F.Supp. 68, 76 (S.D.Tex. 1982). 

Benn’s case clearly presented an

emergency situation. Both his calls to the

Horsham clinic and his note at the bottom
11

of his Contract for Safety suggested to the

doctors that Benn was highly unstable.

Furthermore, he was committed for a

“short period of time” and was released

upon Dr. Mukerjee’s evaluation that he

was no longer suicidal. While committed,

Benn was constantly evaluated by the

MCES physicians. Under these

circumstances, we hold that the defendants

did not violate Benn’s rights by not

granting him a hearing before he was

committed.

Third, we see no evidentiary basis

in the record for Benn’s claim that MCES

maintains a policy that denied him his due

process rights. On the contrary, MCES

guidelines track the MHPA, which does

not deny due process. See Monell v.

Department of Social Services, 436 U.S.

658, 694 (1978). In sum, we hold that

Benn’s procedural due process rights were

not violated.

2.

Benn appears to argue that his

substantive due process rights were

violated in three ways. First, he claims

that Drs. Zerb y and M ukerjee

incompetently failed to recognize that he

was not suicidal. Second, he asserts that

he was kept in a room without a toilet.

Third, he claims that he was forcibly given

antipsychotic medication. 

“[I]n a due process challenge to

executive action, the threshold question is

whether the behavior of the governmental

officer is so egregious, so outrageous, that

it may fairly be said to shock the

contemporary conscience.” County of

Sacramento v. Lewis, 523 U.S. 833, 847,

fn. 8 (1998). Whether an incident “shocks

the conscience” is a matter of law for the

courts to decide, see Rochin v. California,

342 U.S. 165, 172 (1952), and we have

previously held that involuntary

commitment under the MHPA does not in

itself violate substantive due process. See

Doby v. DeCrescenzo, 171 F.3d at 871 n.

4 (“[T]he MHPA authorizes seizures that

are ‘reasonable’ under the Fourth

Amendment [and so] the MHPA meets the

rationality test imposed by substantive due

process analysis.”)

In this case, none of the specific

conduct that Benn alleges shocks the

conscience. First, Benn’s complaints

about Drs. Zerby or Mukerjee are

insufficient. Benn claims that Drs. Zerby

and Mukerjee exhibited “ tota l

incompetenc[e] . . . . [by failing] to

understand that plaintiff was showing no

suicidal ideation which merited his

involuntary confinement.” Br. of

Appellants at 13. But whether or not Drs.

Zerby and Mukerjee properly analyzed

Benn’s condition, their conduct did not

violate substantive due process. In view of

the events that led to Benn’s commitment

and the steps taken after his arrival at

MCES, the doctors’ conduct was not

conscience-shocking. 

Second, Benn’s allegation that he

was temporarily kept in a room without a

toilet is insufficient without further

aggravating evidence to meet the high
12

standard needed to state a substantive due

process violation. As the District Court

pointed out, Benn failed to produce any

evidence that the defendants were aware

that he needed to use a bathroom or that

“MCES had a custom or policy of refusing

to allow patients to use the bathroom.”

App. 31.

Third, the administration of

antipsychotic drugs is not shocking to the

conscience under the circumstances

present here. We have held that

authorities may administer antipsychotic

drugs over a patient’s objection “where the

decision is a product of the authorities’

professional judgment.” White v.

Napoleon, 897 F.2d 103, 112 (3d Cir.

1990). See also Rennie v. Klein, 720 F.2d

266, 269 (3d Cir. 1983). In this case,

however, as the District Court noted, Benn

has not alleged that he objected to the

administration of the medication. App. 32.

Under these circumstances, Dr. Zerby’s

conduct did not shock the conscience.

III.

Benn next contends that the District

Court erred in granting summary judgment

in favor of the defendants on his state tort

claims. We disagree.

A.

The MHPA gives broad immunity

to physicians and others who participate in

the involuntary commitment process:

In the absence of willful

misconduct or gro ss

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, or that

a person be discharged, or

p l aced unde r partia l

hospitalization, outpatient

care or leave of absence, or

that the restraint upon such

person be otherwis e

reduced, or a county

administrator or other

authorized person who

denies an application for

voluntary treatment or for

involuntary emergency

examination and treatment,

shall not be civilly or

criminally liable for such

decision or for any of its

consequences.

50 Pa. Stat. Ann. § 7114(a). As the

District Court properly found, Wilcox, a

crisis-line counselor who had no effect on

the decision to commit Benn, is not

covered under the strict language of the

immunity provision. It is clear, however,

that the remaining defendants qualify for

immunity if they did not engage in “willful

misconduct or gross negligence.” See

Doby v. DeCrescenzo, 171 F.3d 858, 875

(3d Cir. 1999).

Under Pennsylvania law, “gross
13

negligence” is “more egregiously deviant

conduct than ordinary carelessness,

inadvertence, laxity or indifference.”

Rather, gross negligence requires conduct

that is “flagrant, grossly deviating from the

ordinary standard of care.” Alrbight v.

Abington Memorial Hospital, 696 A.2d

1159, 1164 (Pa. 1997). “Willful

misconduct” occurs 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. Co., 515

A.2d 933, 937 (Pa. Super. Ct. 1986). 

Here, none of the defendants

committed either gross negligence or

willful misconduct. The only evidence

that Benn puts forward to show such

behavior consists of the two expert reports

of his treating psychiatrist, Dr. Bornfriend.

In her second report, Dr. Bornfriend

alleges:

There appears to be

evidence, however, that

some of the mistreatment

Mr. Benn endured appeared

secondary to even more

malignant causes [than

simple negligence], raising

issues of deliberate

indifference, arrogance,

condescension, and punitive

hostility from these doctors.

I find shocking the level of

disregard for standard

practices involved in

ps yc hiatric treatment,

especially as they relate to

involuntary commitment

an d find that these

Depositions show clear and

convincing evidence that

Mr. Ben n wa s

inappropriately involuntarily

committed and held in the

psy chiatric hos pital,

subjecte d to abusive

mistreatment, and a victim

of medical malpractice and

negligence.

We agree with the District Court

that the assertions in this report do not

comport with the facts and that,

considering the record as a whole, no

reasonable jury could find that the doctors

acted with gross negligence or willful

misconduct. The doctors all participated

in meetings, took careful notes, and

prescribed a careful routine and course of

treatment for Benn. He was released as

soon as they found him to be safe. Their

behavior did not meet the legal definition

of either gross negligence or willful

misconduct. Since none of the doctors

committed any such conduct, we will also

affirm the dismissal of the related claims

against MCES. See Farago v. Sacred

Heart Hospital, 562 A.2d 300, 303 (Pa.

1989).

B.

Finally, we hold that the District

Court properly dismissed the state tort

claims against Eileen Wilcox. There is no
14

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.