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United States District Court, E.D. Pennsylvania

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 person has inflicted or attempted to inflict serious bodily harm on another that there is a reasonable probability that such conduct will be repeated,"*fn4 and/or (2) "within the past 30 days . . . the person has attempted suicide and that there is the reasonable probability of suicide unless adequate treatment is afforded under this act." MHPA § 301(b).

  Section 302, the provision relevant here, allows involuntary commitment of a person for emergency psychiatric examination for up to 120 hours, where "reasonable grounds [exist] to believe that [the person] is severely mentally disabled and in need of immediate treatment." MHPA § 302. Involuntary treatment pursuant to this section may be obtained with or without a warrant. In the former circumstance, "[u]pon written application by a physician or other responsible party setting 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 person to the facility specified in the warrant." MHPA § 302(a). A person held under this provision must "be examined by a physician within two hours of arrival in order to determine if the person is severely mentally disabled within the meaning of section 301 and in need of immediate treatment," and released if such a finding is not made. MHPA § 302(b). Involuntary civil commitment constitutes a serious liberty deprivation, and a person may bring a federal civil rights action where the deprivation is achieved by unconstitutional means. Addington v. Texas, 441 U.S. 418, 425 (1979). A person acting pursuant to the MHPA may not be held civilly liable "[i]n the absence of willful misconduct or gross negligence" under state law. MHPA § 7114.

 B. First Amendment Claims (Counts I and II)*fn5

  Count I of the complaint alleges that Plaintiff's involuntary confinement was undertaken in retaliation for his protest against the Corpus Christi play, in violation of the First Amendment. Count II alleges that Defendants denied Plaintiff assistance in staging the Protest Event and engaged in other conduct in violation of his free speech rights. First Amendment retaliation claims are governed by a three-step analysis, requiring a plaintiff to demonstrate "(1) that [the plaintiff] engaged in protected activity; (2) that the government responded with retaliation; and (3) that the protected activity was the cause of the retaliation." Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (citation omitted). Defendants do not contest that Plaintiff was engaged in protected activity during the period in question for purposes of this motion. Defs. Mem. at 6 n.4. With respect to the second prong, Defendants argue that Plaintiff cannot demonstrate that his protected conduct was a substantial factor motivating the decision to seek his involuntary commitment. Rather, Defendants contend that "it was only after Defendants notified Plaintiff that they would not accommodate his request to allow him to stage a several day production in the center of campus did Plaintiff begin to demonstrate the signs of losing control." Defs. Mem. at 7.

  The question of whether Defendants' actions were retaliatory in nature is question of fact that must be decided by a jury. As Plaintiff points out, Defendants rely on material facts in dispute in moving for summary judgment. First, the record includes evidence to support the inference that prior to November 2, 1999, Defendants had adopted an unfavorable view towards Plaintiff's protected conduct and public expression of his opposition to the Corpus Christi production on campus.*fn6 Second, Plaintiff testified that Bergman promised on two or three occasions in October of 1999, to supply a stage and other support for the Protest Event, and withdrew the offer at the final meeting. Though Bergman cited lack of funding as the basis for withdrawing the University's support, Plaintiff's offer to pay the expenses was not considered or accepted. Third, there exists evidence from which it could be reasonably inferred that Plaintiff was subjected to disparate treatment by Defendants. Plaintiff was not offered an alternative accommodation, or given an opportunity to modify his plans.*fn7 The evidence proffered by Plaintiff entitles him to a trial on the question of whether his exercise of his First Amendment rights was a substantial factor motivating Defendants' decision to deny the University's assistance in staging the Protest Event and their decision to subject Plaintiff to an involuntary psychiatric evaluation. Merkle v. Upper Dublin Sch. Dist, 211 F.3d 782, 795 (3d Cir. 2000) (citations omitted) ("Where a reasonable inference can be drawn that an employee's speech was at least one factor considered by an employer in deciding whether to take action against the employee, the question of whether the speech was a motivating factor in that determination is best left to the jury.").

 C. Fourth Amendment Claims

  1. Unreasonable Seizure/False Arrest (Counts III and VII)

  Defendants also move for summary judgment on Plaintiff's false arrest and unreasonable seizure claims (Counts IE and VII). "The Fourth Amendment applies to seizures in civil, as well as criminal, proceedings. The fundamental inquiry in such proceedings, however, remains whether the government's conduct is reasonable under the circumstances." Doby v. DeCrescenzo. 171 F.3d 858, 871 (3d Cir. 1999) (citing O'Connor v. Ortega, 480 U.S. 709, 714-15 (1987)) (add'l citation omitted). In determining whether an official's conduct was reasonable within the meaning of the Fourth Amendment, "we must decide whether the actions of the [officials] were `objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.'" Id. at 874 (quoting Graham v. Connor. 490 U.S. 386, 397 (1989)). Generally, an official must have probable cause to effect a seizure. Michigan v. Summers. 452 U.S. 692, 696 (1981). However, in the context of seizures effected to obtain emergency psychological care pursuant to the MHPA, the Third Circuit has applied the "special needs" exception to the warrant and probable cause requirements. Doby, 171 F.3d at 871.

  Concurring with the First Circuit, the Third Circuit in Doby held that "the temporary involuntary commitment of those deemed dangerous to themselves or others [pursuant to the MHPA] qualifies as a `special need' permitting the state to act without a warrant." Id. Doby affirmed the constitutionality of the MHPA, noting the narrow scope of Section 302 (limiting involuntary commitments to emergency situations) and the procedural safeguards embedded in the statute. The court concluded:

Because the section 7302 procedures exist to respond to emergency cases,. . . [t]he statutory requirement that the individual appear "responsible" and the warning on the application form that false statements can subject a petitioner to criminal prosecution are sufficient safeguards in light of the circumstances to assure the reliability of information communicated to the delegate.
Id. at 872. The special needs exception is therefore applicable in this case and the determinative question is, therefore, whether on November 2, 1999, the facts as known to Bergman and Bittenbender provided a reasonable basis to support their determination that Plaintiff was in need of emergency psychiatric care. As discussed with respect to Plaintiff's First Amendment claim, the parties are in stark disagreement as to the material facts underlying this question, requiring that the factual dispute be presented to a jury. In addition, even if the Court were to limit its analysis to defense statements and representations, Defendants would not be entitled to qualified immunity or judgment on the merits on these counts.

  Bittenbender wrote in the narrative section of the 302 Application executed to facilitate Plaintiff's involuntarily commitment the following:

The student has been acting irrationally & agitated. He has been confrontational with faculty & staff . . . Today he [sic] been extremely agitated, sobbing he ran from a meeting and locked himself in a bathroom for 15 minutes. Police were called to gain access to the bathroom as I felt that he was going to hurt himself & may be suicidal. As a result of his confrontations with various people & the fear of harm others have felt, additional police coverage has been assigned to certain activities [around campus where Plaintiff was present].*fn8
However, during his deposition, Bittenbender conceded that he had no knowledge of Plaintiff threatening or causing harm to others. Bittenbender Dep. at 244. Bittenbender also conceded that he had no knowledge of Plaintiff attempting suicide prior to November 2, 1999.*fn9 Id. at 246. Rather, at the time of his deposition, Bittenbender stated that his decision to seek an emergency psychiatric consult for Plaintiff stemmed from his belief that Plaintiff may have attempted suicide during the restroom incident outside Bergman's office; Bergman concurred in this decision. Id. at 247; Bergman Dep. at 183. Defendants have not identified any physical evidence to suggest that Plaintiff attempted to harm himself while he was in the restroom.*fn10 Further, while Bittenbender indicated that he believed Plaintiff may have attempted to harm himself by taking medication, he conceded that he was "not sure if [Plaintiff], in fact, had" taken any medication. Bittenbender Dep. at 255. Nor could Bittenbender recall whether he asked Plaintiff if he had taken any medication while in the restroom. Id. at 273. In addition, neither Bittenbender nor Bergman conducted a search of Plaintiff, and Bittenbender testified that when Plaintiff was "patted down" by a campus police officer prior to his transport to the hospital, he did not recall the officer finding anything unusual in Plaintiff's possession. Id.

  These facts render this case distinguishable from Doby and Mervan v. Darrell. 1995 U.S. Dist. LEXIS 5594 (E.D. Pa. Apr. 26, 1995), two cases on which Defendants heavily rely. In Doby. a case before the Third Circuit following a jury trial, the plaintiff had a history of depression and was involuntarily committed after two suicide notes she wrote were found, notes which the plaintiff's own expert conceded were "frightening." Doby. 171 F.3d at 867. In Mervan. the plaintiff, who apparently had a drinking problem, "intentionally put antifreeze into his mouth in a self-admitted ploy to force his mother to furnish his car keys so that he could drive to the store to purchase beer." Mervan at *2. In the days prior to his involuntary commitment, the plaintiffs mother also reported that he was "agitated and had not been sleeping or eating." Id. at * 12. On summary judgment, the court found that even based on the plaintiffs version of events, the social workers and police officers who participated in his 302 commitment had a reasonable basis to believe that he "posed a serious risk of harm to himself and was in need of emergency treatment," and thus entitled to qualified immunity. Id. at * 12-13. However, the attending physician who authorized the plaintiff's detention beyond the initial two-hour period allowed under section 302(b) was not granted qualified immunity; the record was disputed on the question of whether the physician relied on the statements of the social workers and police officers, or whether he examined the plaintiff himself prior to authorizing the plaintiff's continued detainment as section 302(b) required. Id. at * 16-17.

  It was clearly established in 1999, that a civil commitment pursuant to the MHPA could not be sought absent a reasonable basis to believe that the person being subjected to the Act was "severely mentally disabled" within the meaning the Act. As noted, Bittenbender has conceded that he had no knowledge of Plaintiff ever attempting to harm others, or any knowledge of Plaintiff attempting to harm himself prior to November 2, 1999. In light of this evidence and the factual disputes in the record concerning whether Plaintiff had attempted to harm himself on November 2, the Court cannot conclude as a matter law that Defendants are entitled to qualified immunity. Accordingly, the motion for summary judgment on Count III is denied.

  2. Excessive Force (Count IV)

  Similarly, Defendants are not entitled to summary judgment on the excessive force count. The same reasonableness standard which applies to claims of unconstitutional seizures governs claims of excessive force. Doby. 171 F.3d at 874 (quoting Graham. 490 U.S. at 397). Plaintiff alleges that Defendants used excessive force against him when they forcibly blocked his attempts to leave Bergman's office by, inter alia, holding Plaintiff down in a chair by his shoulders, intentionally tripping Plaintiff as he attempted to stand and leave Bergman's office, lifting Plaintiff from the ground after he was tripped and "tossing" him back onto the sofa, and restraining Plaintiff as the campus police officers handcuffed him. As a result of this force, Plaintiff sustained bruises to his right shoulder and around his wrists, where he contends the handcuffs were excessively tight. Marcavage Dep. at 198-97.

  Defendants argue they are entitled to summary judgment since, "[a]t worst, Plaintiff was pushed around as he sought to resist being evaluated" and his injuries were de minimus. Defs. Mem. at 14. Plaintiff contends any force used against him was constitutionally violative since he "had done nothing wrong to warrant any use of force against him." Pl. Resp. at 23. The controlling question is whether there was a reasonable basis for Defendants to detain Plaintiff for a 302 evaluation, and whether the force used for that purpose was reasonable under the circumstances. There is no dispute that Plaintiff was manhandled and forcibly detained by Defendants in Bergman's office. Absent a reasonable basis for the detention, or a good faith basis to believe such a basis existed, the force used in this case would be unjustified. Curley v. Klem, 298 F.3d 271, 279 (3d Cir. 2002) (citation omitted) ("A claim for excessive force under the Fourth Amendment requires a plaintiff to show that a seizure occurred and that it was unreasonable."). As the factual basis for making this determination is in dispute, the question must be presented to a jury. The motion for summary judgment on this count is therefore denied. D. Substantive and Procedural Due Process Claims

  1. Procedural Due Process (Count V)

  Defendants are entitled to summary judgment on Plaintiff's procedural due process claim. Plaintiff's contends that because he was not afforded a pre-deprivation hearing, and because the post-deprivation process — his evaluation by two physicians at Temple Hospital as mandated under the MHPA — was (presumably) insufficient, he was denied due process of law. The Third Circuit has observed that the MHPA "procedure was created to allow the counties to handle emergency situations. Courts have stated repeatedly that due process is a flexible notion and that what kind of process is due depends on the individual and state interests at stake. . . . [Thus] it 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, 171 F.3d at 870 (citing Zinermon v. Burch, 494 U.S. 113 (1980); Memphis Light. Gas and Water Div. v. Craft, 436 U.S. 1 (1978)). Thus, Plaintiff's contention that the lack of a pre-deprivation hearing violated his right to due process is without merit. Similarly, Plaintiff's complaint that his procedural due process rights were violated because the only post-deprivation process he was afforded was the psychiatric examination conducted pursuant to Section 302(b) of the MHPA, must also fail. The MHPA mandates such an evaluation occur within two hours of an individual's involuntary commitment, and the statute provides civil remedies for those improperly detained under the statute. It is undisputed that the MHPA's requirements were followed in this regard, providing Plaintiff with all the process he was due for constitutional purposes. Doby, 171 F.3d at 870. 2. Substantive Due Process (Count VI)

  Defendants' motion to dismiss Count VI alleging violation of substantive due process, however, must be denied. It is Plaintiff's contention that Defendants mocked him and had him involuntarily committed for psychiatric evaluation in retaliation against him for his religious beliefs and exercise of his First Amendment rights, and there is evidence in the record to support this claim. In 1999, it was clearly established that an individual may not, consistent with the Constitution, be civilly committed for the mere exercise of his constitutional rights, notwithstanding Defendants' seeming suggestion otherwise. See Addington, 441 U.S. at 425 (citations omitted) ("This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.").

  Pennsylvania courts have similarly recognized this established law. In re Hancock. 719 A.2d 1053, 1056 (Pa. Super. 1998) (citation omitted) ("[d]eciding to commit a person involuntarily for any duration represents a serious deprivation of an individual's liberty.") (emphasis added). Plaintiff suffered a serious deprivation when he was involuntarily committed, and if a jury finds that Plaintiff's exercise of his religious and free speech rights was a factor which substantially motivated the decision to commit him, it could also find that Defendants' conduct in this case — forcibly detaining a student for psychiatric evaluation as a retaliatory measure — shocks the conscious. SamericCorp. of Delaware. Inc. v. City of Philadelphia. 142 F.3d 582, 590 (3d Cir. 1998) ("[A] substantive due process violation is established if the government's action w[as] not rationally related to a legitimate government interest or w[as] in fact motivated by bias, bad faith or improper motive."), quoted in Doby, 171 F.3d at 871 n.4. E. Monell Claims*fn11

  Defendants seek dismissal of Plaintiff's Monell claims on grounds that there exists no evidence that the University maintains a policy or custom which subjects its students to "undergo unnecessary involuntary psychiatric evaluations." Defs. Mem. at 44. Plaintiff relies principally on Bittenbender's testimony that "several commitments pursuant to § 302 of the MHPA are sought by his officers each month during the academic year," to establish a factual dispute as to whether Temple, as a matter of policy or custom, abuses its authority under Section 302.*fn12 Pl. Resp. at 41. This evidence is insufficient to hold the University liable on this basis. The testimony on which Plaintiff relies merely establishes that the University has, on several occasions, acted pursuant to the statute, but not that it has an established policy or custom of unconstitutional abuse. See Monell v. New York City Dept. of Social Services. 436 U.S. 658 (1978) (holding municipalities may not "be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort"). Plaintiff must come forth with evidence demonstrating unlawful use of the statute beyond his own alleged circumstance to sustain a Monell claim of this nature against the University.

  For this reason, Plaintiff's failure-to-train claim brought against Temple must fail as well. While both Bergman and Bittenbender admitted that they had never received training on the proper standards and procedures for effecting MHPA commitments, a failure-to-train claim can only succeed if it is shown that "the inadequacy . . . [or] failure to train amounts to deliberate indifference to the rights of the persons with whom the [officials] come into contact." City of Canton v. Harris. 489 U.S. 378, 388 (1989). The theory of Plaintiffs case is that Defendants acted in bad faith and in retaliation against him for his religious beliefs and exercise of his free speech rights. Plaintiff has not come forth with evidence to show that the failure to train "actually caused" Defendants to, allegedly, deliberately disregard his constitutional rights. Id. at 391 (holding a plaintiff "must . . . prove that the deficiency in training actually caused the . . . [deliberate] indifference to [constitutional rights]"). Accordingly, the University is granted summary judgment on both Monell claims.

 F. State Law Claims (Counts VIII-XII)

  Defendants move for summary judgment as to Plaintiff's state law claims on grounds that they are entitled to immunity under the MHPA. Section 7114 exempts individuals "who participate[] in a decision that a person be examined or treated under [the MHPA]" and do not engage in "willful misconduct or gross negligence" from civil and criminal prosecution under state law.*fn13 The Third Circuit addressed the standard governing willful misconduct and gross negligence determinations in Doby:

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.". . . . [and] willful misconduct exist[ing] 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."
Doby, 171 F.3d at 875 (quoting Albright v. Abington Memorial Hospital. 696 A.2d 1159, 1164 (Pa. 1997); Kriviianski v. Union R. Co., 515 A.2d 933, 937 (Pa. Super. 1986)). To be entitled to immunity on summary judgment, the factual record must demonstrate that the defendant did not act in willful violation of the statute or with gross negligence. In this case, Plaintiff alleges that the actions taken by Defendants against him were retaliatory, and the parties dispute whether or not the statutory factors necessary to seek a 302 commitment existed when Plaintiff was involuntarily committed for psychiatric evaluation. These differences need not be recounted here, as they have previously been discussed in this opinion. Given the factual disputes in the record,*fn14 the Court cannot conclude as a matter of law that Bergman and Bittenbender were not grossly negligent or did not engage in willful misconduct. Accordingly, the motion for immunity from suit on the state law claims is denied.*fn15


  In accordance with the foregoing, Defendants' motion for summary judgment is granted with respect to Count V and the Monell claims, and denied as to all other remaining counts. An appropriate Order follows.

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