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May 21, 2004.

BOARD OF TRUSTEES OF TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; WILLIAM BERGMAN, individually, and in his official capacity as Vice President of Operations for Temple University; and CARL BITTENBENDER, individually, and in his official capacity as Managing Director of Campus Safety Services for Temple University, Defendants

The opinion of the court was delivered by: PETRESE B. TUCKER, District Judge


Presently before the Court is a motion for summary judgment (Docs. 82-83) filed by Defendants Board of Trustees of Temple University of the Commonwealth System of Higher Education ("Board" or "University")? William Bergman, and Carl Bittenbender. Plaintiff Michael Anthony Marcavage has filed a response in opposition (Docs. 90-91). Upon consideration of the parties respective filings, the motion is granted in part and denied in part.


  The instant action was filed in October, 2000, by Plaintiff Michael Anthony Marcavage, a former Temple University student who has since graduated. The complaint alleges that Defendants violated his First, Fourth and Fourteenth Amendment rights and engaged in other tortious conduct when they obtained his involuntary commitment at Temple Hospital for emergency psychiatric evaluation, allegedly in retaliation for his religious beliefs and efforts to stage a demonstration in support of his beliefs on campus. Twelve of the original 13 counts remain and Defendants seek dismissal of them all.*fn1 The following facts are viewed in the light most favorable to Plaintiff. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986).

  In the fall of 1999, Temple University's School of Communication and Theater planned and presented a play entitled "Corpus Christi," which portrayed Jesus Christ and his disciples as homosexuals engaged in sexual acts with one another. Plaintiff, a Christian, opposed the play and requested that the University bar its production on campus, a request which was denied. Plaintiff then sought to organized an alternative event ("Protest Event"), "to depict Jesus as He really was," with the Campus Crusade for Christ, a campus organization. Pl. Resp. at 4. Plaintiff approached Defendant William Bergman, the University's Vice President of Operations, about organizing the event in October of 1999. Defendant Carl Bittenbender, the Managing Director of Campus Safety Services, attended most if not all the meetings Plaintiff had with Bergman regarding the Protest Event. Plaintiff requested to hold the Protest Event at the Bell Tower area of Temple's main campus on November 8 and 9, 1999, the same days Corpus Christi was scheduled to be performed. In October, Plaintiff was told two or three times by Bergman that the University would provide a stage for his counter-event. Marcavage Dep. at 130-31. Kathy Logan, a minister who was assisting Plaintiff in organizing the alternative event and a member of Campus Crusade for Christ, was told by Plaintiff that Bergman had assured him a stage would be provided. Logan Dep. at 20. Throughout October, Plaintiff and Logan met several times to plan the counter-event, which was to include speakers, a Christian band, and performance of a play entitled "Final Destiny." During this time, Plaintiff also posted and distributed flyers around campus urging others to protest the Corpus Christi production. Plaintiff wrote letters expressing his objections to the University's president and other officials, and attended a meeting of the Board of Trustees in an effort to bring the issue to the Board's attention as well.

  On November 1, 1999, Plaintiff met with Bergman and Bittenbender for a third time. Plaintiff fully advised them of the itinerary he and Logan planned for the counter-event. Bergman expressed concern about the placement of chairs at the proposed demonstration site due to pedestrian traffic. Plaintiff informed Bergman that they could do without the chairs. Marcavage Dep. at 143; Logan Dep. at 27-28. During the meeting, Bergman brought in his secretary, Liset Cruz, to inquire about the size of the stage she had obtained for another student event. Marcavage Dep. at 148. After consulting with Cruz, Bergman assured Plaintiff that a stage would be made available on the requested dates.*fn2 Id. at 149.

  On November 2, 1999, Plaintiff attended another meeting with Bergman and Bittenbender regarding the arrangements for the Protest Event. Bergman testified that prior to this last meeting the Vice President of Student Affairs, Valaida S. Walker, was contacted. Walker does not recall who contacted her regarding Plaintiff's request, but explained "[i]t's kind of hazy, but I thought that the request did not fit our guidelines . . . [T]he request was not coming from an organization and that it was not timely and there would have been finances involved and there was no mechanism for financing the program." Walker Dep. at 16-17. After consulting with Walker, Bergman informed Plaintiff at the November 2 meeting that University would not provide him with a stage or any other assistance. Initially, Bergman would not tell Plaintiff why his request was denied and remained silent when asked. Marcavage Dep. at 186. Plaintiff persisted and was told that a stage would cost too much. Id. Plaintiff had come to the meeting with his checkbook and offered to pay all expenses. At the time, Plaintiff had $1,000 to $2,000 in his checking account and approximately $20,000 in mutual funds. Id. at 186-87. Bergman and Bittenbender did not respond to Plaintiff's offer to pay and would not put a figure on the cost, except to allow it would be "quite expensive." Id. at 188-89.

  After denying Plaintiff's request for assistance, Bergman and Bittenbender became silent and would not respond to Plaintiff's questions. Id. at 189. Plaintiff testified, "[t]hat was the problem. They just remained silent. And I'm sitting there wondering what was happening here." Id. Plaintiff's "eyes welled up" and he excused himself to go to the restroom to wash his face, collect his thoughts, and to "[p]ray[] about what I could do next."*fn3 Id. at 189-90. Soon after Plaintiff entered the restroom, a single-person facility in the hall near Bergman's office, Bergman pounded on the door and told Plaintiff, "[C]ome out of there. We need to talk to you." Id. at 190. Plaintiff states that he was only in the restroom one to two minutes, just long enough to wash his face and begin to pray, before Bergman knocked. Id. at 191. Plaintiff further testified:
At first, I didn't hear the banging on the door . . . I recall I thought it was maybe next door or something, someone was banging something. Then I could tell it was me they actually wanted to come out of the bathroom. It was a one-person bathroom. So, I had to open the door. It was kind of confusing. I had told them — I excused myself to go to the restroom, and that was all that happened.
Id. at 192. Plaintiff exited the restroom within 30 seconds of Bergman's knocking. Id. Plaintiff then "proceeded to tell Bergman that there is nothing else we need to talk about" and attempted to leave. Id. at 194. Bergman insisted that Plaintiff return to his office; when Plaintiff refused, Bergman physically forced Plaintiff back into his office and pushed Plaintiff into a chair. When Plaintiff again attempted to leave, he was tripped by Bergman and forced back onto a couch and held down by Defendants. A Temple police officer was summoned and ordered to handcuff Plaintiff, and instructed to transport Plaintiff to Temple Hospital for a psychiatric evaluation. Plaintiff was led out of the University's administrative building, Conwell Hall, in handcuffs and escorted by two campus officers. Throughout this period, Plaintiff protested Defendants' actions and asked to contact his attorney. See, e.g., Walton Dep. at 52.

  At the hospital, Bittenbender completed an application to have a warrant issued to have Plaintiff admitted for an emergency psychiatric evaluation pursuant to Section 302 of the Pennsylvania Mental Health Procedures Act ("MHPA" or the "Act"), 50 Pa.C.S.A. §§ 7101 et seq. Bittenbender signed the application ("302 Application") attesting that Plaintiff had attempted suicide and was a "clear and present danger" to himself and others. Based on Bittenbender's statements, a warrant was issued and Plaintiff was held for over three hours. During this time, Plaintiff was examined by two physicians who found him to be "calm" and "very cooperative," and ordered his discharge.

  Following his release Plaintiff attempted to file assault charges against Bergman and Bittenbender with campus police, but his complaint was refused. Plaintiff then filed a complaint with the Philadelphia Police Department and subsequently initiated this lawsuit. Plaintiff alleges that the actions taken against him were in retaliation for his exercise of his First Amendment rights, and as a result of Defendants' conduct he was unable to stage the Protest Event, was defamed, and suffered harm to his reputation and emotional distress.


  Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)). An issue is "genuine" when the evidence is such that a reasonable jury could return judgment in the non-moving party's favor, and a disputed fact is "material" if its resolution could affect the outcome of the case under governing law. Anderson, 477 U.S. at 248. Where the non-moving party bears the burden at trial, the moving party may prevail on the motion by demonstrating that the "nonmoving party has failed to make a sufficient [evidentiary] showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "To raise a genuine issue of material fact, however, the opponent need not match, item for item, each piece of evidence proffered by the movant." Big Apple BMW. Inc. v. BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). However, to survive summary judgment, the non-moving party's evidentiary production must at least exceed the "mere scintilla threshold" to show a disputed material fact. Id. (internal quotations omitted). In considering a motion for summary judgment, all evidence is viewed in the light most favorable to the party opposing the motion. Anderson, 477 U.S. at 255. III. DISCUSSION

 A. Pennsylvania Mental Health Procedures Act ("MHPA")

  This lawsuit stems from Plaintiffs involuntary commitment by Defendants for an emergency psychiatric evaluation pursuant to Section 302 of the Pennsylvania Mental Health Procedures Act ("MHPA" or the "Act"), 50 Pa.C.S.A. §§ 7101 et seq. The purpose of the Act is "to assure the availability of adequate treatment to persons who are mentally ill, and . . . to establish procedures whereby this policy can be effected." MHPA § 102. The Act permits the involuntary commitment of persons who constitute a "clear and present danger" to themselves or others, within the meaning of the statute. Section 301 sets forth the statutory factors that must be present to subject an individual to the MHPA for purposes of emergency psychiatric evaluation, providing:
Whenever a person is severely mentally disabled and in need of immediate treatment, he may be made subject to involuntary emergency examination and treatment. A 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 present danger of harm to others or to himself.
MHPA § 301(a). A person constitutes a "clear and present danger" under the statute if, in relevant part: (1) "within the past 30 days the ...

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