Carver v. Plyer

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-12-2004
Carver v. Plyer
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1076
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Recommended Citation
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NO. 04-1076
____________
JEAN CARVER; CHARLES KIMBLE BOOZ
Appellants
v.
THOMAS PLYER; EDWARD C. DEX; QUAKERTOWN BOROUGH;
ST. LUKE’S HOSPITAL; JOANNE E. HULLINGS; TERESA BOHRER
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 03-cv-00375)
District Judge: Honorable Clarence C. Newcomer
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 7, 2004
BEFORE: SLOVITER, VAN ANTWERPEN and COW EN, Circuit Judges
(Filed October 12, 2004 )
____________
OPINION
____________
VAN ANTWERPEN, Circuit Judge
Jean Carver (“Carver”) and Charles Kimble Booz (“Appellants”) brought suit
against Quakertown Borough, two Quakertown Borough policemen, St. Luke’s Hospital,
and two of its employees (“Appellees”) under 42 U.S.C. § 1983. Appellants alleged that
Appellees detained and treated Carver without her consent in violation of her due process
rights under the Fourteenth Amendment. The District Court entered summary judgment
in favor of the hospital and its employees.1 Appellants now assert that the District Court
abused its discretion in failing to give them notice that it was considering a motion for
summary judgment; erred in granting summary judgment as to certain state law claims
after dismissing Appellants’ federal claims; and erred in finding that the hospital and its
employees were not state actors for purposes of section 1983. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Since we write only for the parties we will state only the relevant facts. On
October 4, 2002, police officers Todd Plyer and Edward Dex brought Carver from her
home to St. Luke’s Hospital (“St. Luke’s”) after learning from her fiancé that she had
ingested a bottle of ibuprofen. Carver initially denied having overdosed and on that basis,
Dr. Joanne Hullings (“Hullings”) determined that she was not in need of treatment.
However, Carver later told Hullings that she had ingested a bottle of Klonopin, and, on
that basis, Hullings decided Carver needed her stomach pumped.
At some point, Carver attempted to flee the hospital on foot. Plyer and Dex, then
in the process of leaving, chased Carver down and brought her back to the hospital in
1
1 A settlement agreement was reached between Carver, Quakertown Borough, and the
2 two Quakertown policemen, Todd Plyer and Edward Dex, on January 5, 2004.
3 Consequently, the District Court dismissed the case with prejudice pursuant to Local Rule
4 41.1(b).
2
handcuffs. They then assisted a nurse, Teresa Bohrer, in putting Carver into four point
restraints, while Carver attempted to kick the officers and bite the hospital staff. Hullings
administered an injection of Haldol to calm Carver down and then had her stomach
pumped. Blood tests later revealed Carver had recently consumed significant quantities
of amphetamines, barbiturates, and alcohol. Carver subsequently signed a voluntary
consent form for inpatient treatment at the psychiatric ward.
On February 5, 2003, Carver pled guilty to three counts of simple assault against
the policemen and Bohrer, four counts of disorderly conduct, and one count of public
drunkenness. She was sentenced to prison for a term of four to twenty-three months.
On January 24, 2003, Carver filed suit against Plyer, Dex, Quakertown Borough,
St. Luke’s Hospital, Bohrer, and Hullings. The hospital and its employees moved to
dismiss, or, in the alternative, for summary judgment. The motion for summary judgment
was granted by the District Court on May 5, 2003. On January 5, 2004, the District Court
dismissed the suit with prejudice after Quakertown Borough, Plyer, and Dex reached a
settlement agreement with Carver. Subsequently, Carver filed a motion to enforce the
terms of the settlement agreement, which was denied by the District Court on January 26,
2004.
II. STANDARD OF REVIEW
Premature grants of summary judgment by a District Court are reviewed for abuse
of discretion. See Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir. 1989). Review of the
3
actual grant of summary judgment is plenary. See Robertson v. Allied Signal, Inc., 914
F.2d 360, 366 (3d Cir. 1990).
III. DISCUSSION
As a preliminary matter, we respond to Appellees’ uncontested arguments that
Carver cannot maintain an appeal against Quakertown Borough, Plyer, Dex, Hullings, and
Bohrer. We agree. With regard to Quakertown Borough, Plyer, and Dex, Appellants’
Notice of Appeal indicated an appeal of the District Court’s denial of their motion to
enforce the settlement agreement. 2 However, Appellants did not raise this, or any, issue
in their brief concerning these parties. It may be that the omission was due to the fact that
the terms of this settlement agreement have since been fulfilled. Regardless, when an
appellant fails to raise an issue in an appellate brief, even if it was listed in the Notice of
Appeal, it is deemed waived. See Ghana v. Holland, 226 F.3d 175, 180 (3d Cir. 2000).
2
1 The original Notice of Appeal filed on January 8, 2004 stated that appellant, Jean
2 Carver, was appealing “from the May 02, 2003 entered order [sic] that granted summary
3 judgment to St Lukes Hospital [sic].” After the appeal was filed, an Amended Notice of
4 Appeal was filed on January 28, 2004 stating that Plaintiffs Jean Carver and Charles
5 Kimble Booz were appealing from the May 2, 2003 order “and the January 26, 2004
6 Order denying Plaintiffs’ Locale [sic] Procedural Rule 41.1 motion to reinstate the case
7 under [sic].”
8 The May 2, 2003 Order of the District Court contained a statement that “Judgment
9 is entered in favor of St. Luke’s Hospital, Joanne E. Hullings and Terri Bohrer and
10 against the Plaintiffs.” Nevertheless, sufficient reasons were not given for entering
11 judgment as to less than all the parties as required by Fed. R. Civ. P. 54(b), and it appears
12 from the docket that a separate document entering judgment was never filed as required
13 by Fed. R. Civ. P. 58(a)(1). Accordingly, we believe the May 2, 2003 Order of the
14 District Court did not become final and appealable until the District Court entered its
15 Order dismissing the entire action with prejudice on January 5, 2004.
4
Accordingly, any issues concerning the action of the District Court denying the motion to
enforce the settlement agreement are deemed waived.
Similarly, any issues concerning the District Court’s order granting summary
judgment as to Hullings and Bohrer are not properly before us, as Appellants have failed
to list either party in their Notice of Appeal or Amended Notice of Appeal. While the
Federal Rules of Appellate Procedure do not specifically require that all appellees be
named in the Notice of Appeal,3 we have previously held that where an appellant fails to
name an appellee in a Notice of Appeal, the omission deprives this court of jurisdiction as
to that appeal. See Carter v. Rafferty, 826 F.2d 1299, 1304 (3d Cir. 1987).
We now consider whether the District Court abused its discretion when it
considered St. Luke’s motion for summary judgment without expressly notifying
Appellants that it would do so, and without providing them with an opportunity to
conduct further discovery or holding a hearing on the matter. Appellants correctly
maintain that it is reversible error for a District Court to convert a motion to dismiss to a
motion for summary judgment without notifying the parties and giving them an
opportunity to present material to the court. See Rose v. Bartle, 871 F.2d 331, 342 (3d
Cir. 1989). However, motions for summary judgment that are presented to the court as
motions in the alternative constitute sufficient notice to a non-moving party that the court
may convert a motion to dismiss into a motion for summary judgment. See Hilfirty v.
3
1 Rule 3(c)(1)(B), Fed. R. App. P., requires that a Notice of Appeal “designate the
2 judgment, order, or part thereof being appealed . . . .”
5
Shipman, 91 F.3d 573, 578-79 (3d Cir. 1996).
In the instant case, St. Luke’s filed a motion entitled, “Motion to Dismiss
Plaintiffs’ First Amended Complaint/Motion for Summary Judgment.” Thus, by virtue of
the title alone, Appellants were on notice that the District Court might entertain a motion
for summary judgment. Furthermore, Appellants’ own response to St. Luke’s motion,
which was entitled “Plaintiff’s [sic] Reply to Defendants . . . Motion to Dismiss the
Plaintiff’s [sic] First Amended Complaint/Motion for Summary Judgment,” and which
included a section discussing the appropriate standard of review for summary judgment
and fifteen pages of exhibits, removes any doubt whatsoever that Appellants were aware
that St. Luke’s had moved for summary judgment. Thus, we find that the District Court
did not abuse its discretion in converting St. Luke’s motion to dismiss to a motion for
summary judgment without expressly notifying Appellants.
Nor did the District Court abuse its discretion in not providing Appellants with an
opportunity to conduct further discovery or in not holding a hearing. Appellants cite Rose
for the proposition that a District Court must provide an opportunity to conduct discovery
and hold a hearing when converting a motion to dismiss to a motion for summary
judgment. However, Appellants’ attempt to apply Rose here is misplaced. In Rose, the
court held that the District Court erred in converting the motion because the only notice
the non-moving party had was an ambiguous court order that referenced the court’s
intended consideration of a motion made pursuant to Fed. R. Civ. P. 12(b)(6). See Rose,
6
871 F.2d at 341.
In contrast to Rose, Appellants had clear notice that the District Court was
considering a motion for summary judgment because St. Luke’s motion was entitled as
such. Moreover, if Appellants truly needed additional time for discovery, they had ample
time in which they could have requested it. St. Luke’s motion to dismiss/motion for
summary judgment was filed on M arch 17, 2003, and the court did not rule on it until
May 5, 2003. Yet they failed to submit any such request to the District Court.
As to Appellants’ claim that they were entitled to a hearing with respect to the
motion for summary judgment, the Federal Rules of Civil Procedure do not support their
contention. While we have observed that Rule 56 appears to anticipate a hearing prior to
a ruling on a motion for summary judgment, Season-All Industries, Inc. v. Turkiye Sise
Ve Cam Fabrikalari, A.S., 425 F.2d 34, 39 (3d Cir. 1970), we stated quite explicitly in
Rose that Rule 56 includes only two prerequisites to a summary judgment ruling. See
Rose, 871 F.2d at 340. These prerequisites are that the parties have at least 10 days notice
before the court considers the motion and an opportunity to submit evidence in support or
against the motion. Id. While in some cases a hearing might be viewed as a requirement,
the number of such instances is small because, under Fed. R. Civ. P. 78, courts are
permitted to rule on motions without oral hearings. Id.We also find that the District Court did not err in entering summary judgment
against Appellants as to certain state law claims after dismissing Appellants’ federal
7
claims. Federal courts have discretion to exercise supplemental jurisdiction over pendant
state claims, and the elimination of the federal claims in a case does not deprive the courts
of this power. See New Rock Asset Partners, L.P. v. Preferred Entity Advancements,
Inc., 101 F.3d 1492, 1505 (3d Cir. 1996).
Appellants’ assertion that a federal court cannot exercise jurisdiction over
supplemental state claims once it determines it lacks subject matter jurisdiction, Ray v.
Eyster, 132 F.3d 152, 155 (3d Cir. 1997), is not applicable here because the District Court
did not decide that it lacked subject matter jurisdiction over the federal claims. Rather, it
dismissed them because it concluded, as we do in the discussion that follows, that the
hospital defendants were not state actors.
Turning now to the final issue raised in this appeal, we hold that St. Luke’s is not a
state actor for purposes of section 1983 under any of the possible tests used to determine
whether one’s conduct is attributable to the state. Appellants’ strongest argument here is
that St. Luke’s became a state actor under the “joint action” theory when it acted in
conjunction with police to restrain and treat Carver without her consent. In Adickes v.
S.H. Kress & Co., 398 U.S. 144, 151 (1970), the Supreme Court held that a private party
can be held liable under section 1983 for attempting to deprive an individual of his or her
constitutional rights if the private party “jointly engaged with state officials in the
prohibited action.” Adickes was then remanded so the lower court could determine if a
store had acted jointly with a policeman in having a white woman arrested for attempting
8
to have lunch with a group of black students. Id. at 148.
In spite of Adickes, the Fifth, Seventh, and Tenth Circuits have held that the use of
police officers to assist in “the exercise of self-help” does not create a sufficient
conspiracy with a private person to deprive an individual of their rights. Bass v.
Parkwood Hosp., 180 F.3d 234 (5th Cir. 1999), citing Spencer v. Lee, 864 F.2d 1376,
1381 (7th Cir. 1989). In Bass, the court held there was no such conspiracy when police
officers were used to detain an individual at a mental hospital after he voluntarily went
there and allegedly told a doctor he wanted to poison his co-workers at a potluck meal.
Id. at 239.
Similarly, in Pino v. Higgs, 75 F.3d 1461, 1466-67 (10th Cir. 1996), the court held
that a doctor who authorized commitment of a patient he suspected would harm herself
was not a state actor even though the patient was brought in involuntarily by police and
the doctor authorized police to transport her to an institution. The court said that the
doctor could not be held liable under section 1983 because a “state is not responsible for
decisions that ‘ultimately turn on medical judgments made by private parties according to
professional standards not established by the state.’” Id., citing Blum v. Yaretsky, 457
U.S. 991, 1008 (1982). 4
4
1 It appears that the Pino court actually indirectly performed the “state compulsion”
2 analysis, under which a private person can be considered a state actor if a statute compels
3 him or her to do something. The statement regarding medical judgments quoted above
4 concerned a New Mexico statute and whether it compelled a doctor to commit a patient or
5 whether it merely authorized a doctor to do so. Id. Still, Pino is relevant here because it
6 too concerned a situation in which a doctor relied on the assistance of police officers to
9
Following the reasoning of the courts in Bass and Pino, the central question here is
whether St. Luke’s conspired with police to detain and force treatment on Carver. But
even taking the facts as asserted by Appellants, albeit unsubstantiated,5 once Hullings
initially decided not to treat or detain her, the police left the hospital and were not present
when Hullings decided to treat Carver. Thus, St. Luke’s cannot be said to have acted
jointly with police to treat and detain her. Nor can it be said that St. Luke’s acted jointly
with the state when police officers assisted hospital staff in restraining Carver once
Hullings decided to treat her because the decision to treat was made prior to police
spotting and then thwarting Carver’s escape. Even if police were present when Hullings
decided to treat Carver, there is simply no evidence to substantiate the allegation that the
police somehow conspired with hospital staff to detain and treat her.
We also reject Appellants’ argument that St. Luke’s became a state actor under the
“state compulsion” theory. Under this theory, Appellants contend St. Luke’s was a state
actor because it was compelled to treat Carver by the Pennsylvania Mental Health
Procedures Act (“MHPA”), 50 P.S. § 7301 et seq. Specifically, Appellants aver that the
MHPA compels a certain course of action by hospital staff because it “delegates police
7 treat a patient.
5
1 Appellants’ Statement of Facts indicates that Officer Dex was not present when
2 Hullings ultimately decided to treat Carver. However, Officer Dex’s police report, which
3 accompanied Appellants’ response to Appellees’ motion to dismiss/motion for summary
4 judgment indicated that he was present at that time. As Appellants submitted no other
5 evidence, such as an affidavit from Carver, which would have supported their version of
6 the facts, we accept the report for the purposes of this appeal.
10
powers to perform such mental health services as intakes, involuntary commitments, and
provide forced treatment to persons who are perceived as a clear danger to themselves,
others, or property.” Appellant’s Br. at 18. We disagree.
In Janicsko v. Pellman, 774 F.Supp. 331, 337-38 (M.D. Pa. 1991), aff’d. 970 F.2d
899 (3d Cir. 1992), which we recently cited with approval in Benn v. Universal Health
Systems, Inc., 371 F.3d 165, 171 (3d Cir. 2004), the court held that although the MHPA
contains language which states that a mental health professional “shall” treat an
individual if it is determined that emergency treatment is necessary, the actual
determination of whether treatment is necessary is sufficiently discretionary so as not to
compel any particular action. Id. We adopted this reasoning and accordingly hold that St.
Luke’s was not compelled by the MHPA to commit and treat Carver and cannot therefore
be considered a state actor in this case.
We affirm the judgment of the District Court.
11