Donald Benn v. Universal Health System, Inc.

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 EM ERGENCY SERVICE,
INC.; VENU M UKERJEE, DR.,
Individually, severally, jointly and/or in
the alternative;
STEPHEN ZERBY, M.D.;
MOHAM MAD QUASIM, DR., C/O
MONTGOMERY
COUNTY EM ERGENCY 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
2nd 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.

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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 post-
traumatic stress disorder. The treatment
included anti-depressant medication.
On August 15, 1998, Benn
t e l ep h o n e d t he H o rs h am C li n ic
(“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 crisis-
line counselor. Benn told Wilcox that he
was looking for treatment for post-
traumatic stress disorder and was
interested in Horsham. Benn admits that
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
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 com mitm ent m ight 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

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contract, B enn w rote:
“While there is no doubt
wha t-so-e ver that m y
mental/emotional health has
b e e n G R E A T L 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 M ental 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 n t a l h e a l t 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 E m e r g e ncy Service I n c.
(“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.

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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 t t e r y , n e g l i g e n c e , a n d f a l s 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 r d i n a n c e , r e g u l a t i o n,
custom, or usage, of any
State or Territory or the
District of C olum bia ,
subjects, or causes to be
subjected, any citizen of the
United States or other
p e r s o n w i t h i n t h 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

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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).
2For 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 self-
control, 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).
450 P.S. § 7302(a) provides as follows:
( a ) A p p l i c a ti o n f o r
Examination.--Emergency
e x a m i n a t io n m a y b e
undertaken at a treatment
f a c i l i t y u p o n t h e
certification of a physician
stating the need for such
examination; or upon a
warrant issued by the county
administrator authorizing
s u c h exam ination ; o r
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
s e t t i n g f o r t h f a c t s
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

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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
exer c i s e o f "coe rciv e
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
cons tituting reasonable
grounds to believe that he is
severely mentally disabled
and in need of immediate
t r e a t m e n t , a n d ( s i c )
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.
.

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[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 n t w i n e d w i t h
governmental policies," or
w h e n g o v e r n m e n t i s
" e n t w i n e d i n [ i t s ]
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 M HPA, 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 (1st 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

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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 ag ency 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

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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 m entally ill in
M a ssach usetts d e m o n s t r a te s t h at
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

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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

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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
th a t Dr s. Zerb y and M uker je e
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
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
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

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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
m i s c o n d u c t o r g r o s s
n e g l i g en c e , a c o u n ty
administrator, a director of a
facility, a physician, a peace
o f ficer or any o t h er
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 a c e d u n d e r p a r t i a l
hospitalization, outpatient
care or leave of absence, or
that the restraint upon such
p e r s o n b e o t h e rw i s 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

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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
i s s u e s o f d e l i b e r a t e
indifference, arrogance,
condescension, and punitive
hostility from these doctors.
I find shocking the level of
disregard for standard
p r a c t ic e s i n v o l v e d in
ps yc h ia t r i c t r e a tm e n t ,
especially as they relate to
involuntary commitment
a n d f i n d t h at t h e se
Depositions show clear and
convincing evidence that
M r . B e n n w a s
inappropriately involuntarily
committed and held in the
p s y c h i a t r i c h o s p i t a l,
s u b j e c te d t o a b u s i v e
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

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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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