James et al v. The City of Wilkes-Barre et al

Filing 129

MEMORANDUM and ORDER ADOPTING in part the R&Rs of Magistrate Judge Methvin- and granting in part and denying in part 63 67 68 79 Motions to Dismiss; SEE MEMORANDUM FOR SPECIFICS Signed by Honorable James M. Munley on 8/15/11 (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHERYL JAMES;
WARREN JAMES; and
NICOLE JAMES,
Plaintiffs

:
No. 3:10cv1534
:
:
(Judge Munley)
:
:
v.
:
:
THE CITY OF WILKES-BARRE;
:
WRIGHT TOWNSHIP;
:
WILKES-BARRE HOSPITAL
:
COMPANY, LLC, d/ba Wilkes-Barre
:
General Hospital;
:
THE WYOMING VALLEY HEALTH
:
CARE SYSTEM;
:
THE WILKES-BARRE CITY POLICE
:
DEPARTMENT;
:
THE WRIGHT TOWNSHIP POLICE
:
DEPARTMENT;
:
DR. RUSSELL ELMER JAMES;
:
DR. NOEL PACLEB ESTIOKO;
:
AMY LYNN CRAIG;
:
BETH ANN NOBLE;
:
LORA DENISE PAULUKONIS;
:
BRIAN THOMAS MORAN;
:
TANYA LYNN OSTOPICK;
:
RYAN RUSSELL SELTZER;
:
CAROLE FLEMING PIROW;
:
DENNIS MONK;
:
BRIAN STOUT;
:
MICHAEL MARSHALL;
:
CHARLIE CASEY;
:
KATHY PICKARSKI VIDUMSKI;
:
JASON FRANK KILLIAN; and
:
DR. MAUREEN M. LICTCHMAN
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM
Before the court are the reports and recommendations of Magistrate Judge
Mildred E. Methvin (Docs. 109-110), which propose granting in part and dismissing
in part the defendants’ motions to dismiss the complaint.
Background
This case arises from the events of September 28 and 29, 2009. (Complaint,
Exh. 1 to Notice of Removal (Doc. 1) (hereinafter “Complt.”) at ¶ 37). On
September 28, Plaintiff Nicole James, then fifteen years old, sent text messages to a
friend informing that friend that James intended to commit suicide by taking an
overdose of ibuprofen pills. (Id. at ¶ 38). At 10:46 p.m., the Defendant Wright
Township Police received a phone call informing them of the threatened suicide. (Id.
at ¶ 39).
At the time of this phone call, Plaintiff Warren James, father of Nicole, was
sleeping. (Id. at ¶ 39). He had taken heart medication, which made him extremely
tired and sleepy, shortly before the call came in. (Id. at ¶¶ 40, 12). Plaintiff Cheryl
James, Nicole’s mother, had also taken prescription medicine that evening. (Id. at ¶
42). Like her husband, the prescription medication made Cheryl James tired and
sleepy, and she was “unable to stay awake shortly after taking it.” (Id. at ¶ 11).

2

¶ 11). She also drank some alcohol on the night in question. (Id. at ¶ 43). All three
members of the James family were in the basement of their home with the television
on at the time of the incident in question. (Id. at ¶ 41).
Wright Township Police officers Dennis Monk, Brian Stout and Michael
Marshall arrived at the James home at 10:49 on September 28. (Id. at ¶¶ 44-45).
They informed Cheryl James of Nicole’s threats. (Id. at ¶ 44). The officers’ noisy
arrival awoke Warren James, and he spoke to the police with his wife. (Id. at ¶ 46).
Warren and Cheryl James confronted their daughter about the text she had sent her
friend. (Id. at ¶ 47). Nicole informed them that she had sent a text and had planned
to kill herself, but she reconsidered and did not plan to do herself any harm. (Id.).
Though Nicole James’s parents believed her denials, the Wright Township police
officers insisted that she be taken to the emergency room at Defendant Wilkes-Barre
General Hospital (“the Hospital”). (Id. at ¶ 48). Warren and Cheryl James
disagreed, wanting to handle the matter in their own home. (Id. at ¶ 49). The police
officers then informed Warren and Cheryl James that they would charge the couple
with “assisted manslaughter” if Nicole suffered an injury due to their actions. (Id. at ¶
50). They felt compelled by the officers to give permission to have Nicole taken to
the hospital. (Id. ¶ 51).
The police also informed the Jameses that they would need to accompany
Nicole to the hospital. (Id. at ¶ 52). Still feeling disoriented from their medication,
neither parent felt it safe for them to travel. (Id. at ¶ 53). They informed the police

3

officers of their fears. (Id.). Officers still insisted that at least one parent travel with
Nicole James to the hospital. (Id. at ¶ 54). Cheryl James judged herself more
capable, and agreed to accompany her to the hospital. (Id. at ¶ 55).
Nicole received screening for a therapeutic drug overdose at the hospital. (Id.
at ¶ 56). The screening showed a slight presence of acetaminophen, a presence
well within the therapeutic dose for a girl Nicole’s age. (Id.). Nicole James had not
overdosed on ibuprofen. (Id. at ¶ 57). The police report indicates that Nicole had
later admitted to taking approximately 30 ibuprofen pills.” (Id.). Cheryl James recalls
that medical personnel told her around 12:30 a.m. on September 29, 2009, that her
daughter had not overdosed on ibuprofen pills. (Id. at ¶ 58).
After receiving this information, a relieved Cheryl James informed medical
personnel that she intended to take her daughter home and arrange for her to
receive counseling the next day. (Id. at ¶ 59). No one informed Cheryl James that
she could not take her daughter home. (Id. at ¶ 60). Indeed, at 12:32 a.m.,
Defendant Kathy Vidumsky led Cheryl James to believe that her daughter would
soon be discharged. (Id.). Unbeknownst to Cheryl James, however, Defendant Dr.
Maureen Litchman appears to have put “a 302 hold” on Nicole at 12:30 a.m. (Id. at ¶
61). Plaintiffs allege that Nicole James’s medical records “appear to have been
tampered with,” and that other evidence may indicate that the 302 hold, which
prevented Nicole’s release, may have only been placed an hour after Cheryl James
sought her release. (Id. at ¶ 62). Staff members, without informing Cheryl James

4

that she could not leave the Hospital with her daughter, contacted hospital security
when Cheryl James announced her intention to leave with Nicole. (Id. at ¶ 63).
At 12:37 a.m. on September 29, Cheryl James called a taxi company for ride
home for her and Nicole. (Id. at ¶ 64). A minute later, the Hospital contacted social
services, citing “unexplained psychological and social concerns.” (Id. at ¶ 65).
Cheryl James alleges that Hospital security personnel followed her and her daughter
outside the hospital as they approached the taxi. (Id. at ¶ 70). Security did not,
however, prevent the two from leaving or inform Cheryl James that she should not
leave the hospital. (Id.). James also alleges that Wilkes-Barre Police Officers were
waiting near the cab when she and her daughter arrived. (Id. at ¶ 71).
At 1:02 a.m. on September 29, the Wright Township Police Department
received a call from Patrolman Charlie Casey of the Wilkes-Barre City Police
Department. (Id. at ¶ 66). Casey informed the department that “‘Cheryl James and
her son got into an altercation and left’” the hospital. (Id.). Casey requested that the
Wright Township Police Department check the James residence and insure the
“‘welfare of any other children in the house.’” (Id.).
At 1:32 a.m. on September 29, someone made an entry into the General
Hospital records that contends that Cheryl James had been admitted on “a 302
arrest.” (Id. at ¶ 67). The entry also claimed that James had “‘hit her head on [a]
taxi cab.’” (Id.). James denies she ever hit her head. (Id. at ¶ 68). At the same
time, Hospital security contacted the Wilkes-Barre City Police Department. (Id. at ¶

5

69).
At 1:33 a.m. Hospital security officers prevented Cheryl and Nicole James
from leaving in the taxi. (Id. at ¶ 72). Cheryl was sitting in the taxi and refused to
leave. (Id.). Two minutes later, she agreed to get out. (Id. at ¶ 73). At that same
time, Hospital “‘supervisors were made aware of the situation.’” (Id. at ¶ 74). James
was not aware of why she could not leave with her daughter. (Id. at ¶ 75). Security
and police personnel informed her that Nicole was subject to a “302 hold.” (Id. ¶ 76).
At that point, tired, medicated and mildly intoxicated, “stressed to the point of
exhaustion,” and no longer concerned about Nicole James’s immediate safety,
Cheryl James told officers that she intended to go home. (Id. at ¶ 77). Hospital
security and Wilkes-Barre police informed her that she could not leave, but would not
explain why. (Id. at ¶ 78). James insisted that she had a right to leave, and officers
forcibly removed her from the taxi, grabbing her about the arms and shoulders. (Id.
¶¶ 79-80). The officers used force to return Cheryl James to the Hospital’s
emergency room; her daughter witnessed this violent action. (Id. at ¶¶ 81-82).
Officers told Cheryl James that she was the subject of a “302 arrest.” (Id. at ¶
83). Their report alleges they forcibly detained, transported and retained James
because she had “‘presented to police under the influence of alcohol and
prescription medicine . . . subject had an obvious altered level of consciousness.”
(Id. at ¶ 84). No physician admitted James to the Hospital nor did any physician
attended to her during this process. (Id. at ¶ 85). The Wilkes-Barre police officers

6

who brought Cheryl James to the emergency room told attending staff that James
had hit her head on a cab and needed evaluation. (Id. at ¶ 86). Pictures of James
reveal no bruising on her head, however. (Id. at ¶ 87). Instead, she had severe
bruising on her neck, shoulders and arms. (Id.). Medical records related to this
incident show no injuries to plaintiff’s head, though they do describe other injuries.
(Id. at ¶ 88).
After dragging James into the Hospital, Wilkes-Barre police officers and
Hospital Security bound her to a gurney that had been prepared by Hospital
personnel. (Id. at ¶ 89). Cheryl James demanded her release. (Id. at ¶ 90).
Instead, Hospital medical staff, acting either at the direction of the Wilkes-Barre
Police or Hospital security, treated plaintiff. (Id. at ¶ 91). Medical staff drew blood
forcibly from Cheryl James and injected her with sedatives. (Id. at ¶ 92). During this
entire incident, Cheryl James protested, demanding her release and begging staff
not to draw her blood or give her a sedative. (Id. at ¶ 93). Staff drew blood and
sedated James while the officers present laughed at her plight. (Id. at ¶ 94).
Plaintiffs allege that Hospital medical personnel knew by 1:38 a.m. that Cheryl
James “may not have belonged strapped to a gurney in the emergency room. (Id. at
¶ 95). Staff nevertheless continued this restraint. (Id.). They also ignored this
assessment in sedating James. (Id.). Hospital records reveal that the only
symptoms James displayed were anger at the treatment she had received and “a
smell of alcohol” about her. (Id. at ¶ 96). According to blood samples, James’s

7

blood alcohol content (“BAC”) at the time of her restraint was 0.073. (Id.).
Pennsylvania law requires a BAC of 0.08 before a person is considered impaired for
driving. (Id. at ¶ 97). The medical records also indicate that James was not a
danger to herself or others. (Id. ¶ 96). Hospital medical records indicate that Cheryl
James was restrained because she removed her clothes and attempt to run out of
the building without them. (Id. at ¶ 98). Plaintiff alleges that those records are in
error and contradictory, however. (Id.). A notation a minute after these allegations
of an attempt at a naked escape indicate that plaintiff was still in her street clothing,
and the hospital then compelled Cheryl James to remove her clothes. (Id.).
Cheryl James remained in restraints, forced to use a bedpan to relieve herself,
for more than four hours before staff removed the restraints. (Id. at ¶ 99). No doctor
saw her until 5:00 p.m. on September 29, 2009. (Id. at ¶ 100). Within two hours of
this doctor’s examination, Cheryl James underwent a psychiatric examination. (Id. at
¶ 101). That examination determined her to be in stable condition, and at 9:00 p.m.
on September 29, 2009 the hospital released her into the care of her husband,
Warren James. (Id.).
During this period, the phone at the James residence had been ringing
“incessantly.” (Id. at ¶ 102). The calls came from the Luzerne County Children and
Youth Services Department. (Id.). Those repeated calls eventually woke Warren
James up, and he immediately answered the phone. (Id. at ¶ 103). The callers
demanded that Warren immediately sign a release that committed his daughter

8

Nicole to a psychiatric counseling center. (Id. at ¶ 104). The callers threatened
Warren James with loss of custody if he did not agree to sign. (Id.). Stressed by
the situation and fearing the loss of his daughter, Warren James faxed his signature
to representatives of Luzerne County Children and Youth Services. (Id. at ¶ 105).
Weakened by his heart condition, the stress of the situation, and lack of sleep,
Warren James collapsed back onto his bed. (Id. at ¶ 106).
When James awoke later in the day he called General Hospital to learn the
location of his wife Cheryl. (Id. at ¶ 107). At first, the Hospital would not provide
Warren James with any information. (Id. at ¶ 108). Agitated, James threatened to
file a missing person’s report if the Hospital did not provide him with basic
information, such as whether or not his wife was at the hospital, and if she was safe.
(Id. at ¶ 109). The Hospital representative hesitated for a moment before informing
Warren James that his wife was “here and she’s safe.” (Id. at ¶ 110). The
representative then hung up. (Id.). He did not hear from his wife until 8:30 p.m. that
evening. (Id. at ¶ 111).
In the meantime, Warren James met with representatives of Children and
Youth Services at his home. (Id. ¶ 112). The department decided to close the case
against the James family after a review of the residence reveal nothing to cause
concern. (Id. at ¶ 113).
On July 12, 2010, plaintiffs filed a complaint in the Court of Common Pleas of
Luzerne County, Pennsylvania. The complaint contains nineteen counts. Most of

9

those counts are state-law tort claims related to Cheryl James alleged false arrest
and imprisonment, as well as negligence claims against various parties.
Defendants removed the case to federal court on July 23, 2010. They then
filed motions to dismiss. The parties briefed the issues. The court referred the
motions to the magistrate judge, who issued two reports and recommendations.
Various parties then filed objections to these reports and recommendations, bringing
the case to its present posture.1
Jurisdiction
Plaintiffs bring their claims pursuant to 42 U.S.C. § 1983. The court therefore
has jurisdiction pursuant to 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.”). The court has supplemental jurisdiction over plaintiffs’ state-law
claims pursuant to 28 U.S.C. § 1367.
Legal Standard
In disposing of objections to a magistrate judge’s report and recommendation,
the district court must make a de novo determination of those portions of the report
to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v.
Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify,

1

Two parties have been dismissed from the case by stipulation since the Magistrate
Judge issued her report and recommendations. The court will not address the motions as
they pertain to these parties. The parties who have been dismissed are Brian Stout (Doc.
115) and Dennis Monk (Doc. 120).
10

in whole or in part, the findings or recommendations made by the magistrate judge.
The district court judge may also receive further evidence or recommit the matter to
the magistrate judge with instructions. Id.
Defendants have filed motions to dismiss plaintiff’s complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). When a defendant files a motion pursuant
to Rule 12(b)(6), all well-pleaded allegations of the complaint must be viewed as true
and in the light most favorable to the non-movant to determine whether “under any
reasonable reading of the pleadings, the plaintiff may be entitled to relief.” Colburn
v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of
Bailey by Oare v. County of York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting
Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per curiam)). The court
may also consider “matters of public record, orders, exhibits attached to the
complaint and items appearing in the record of the case.” Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations
omitted). The court does not have to accept legal conclusions or unwarranted
factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc.,
450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d
902, 906 (3d Cir. 1997)).
The federal rules require only that plaintiff provide “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’” a standard
which “does not require ‘detailed factual allegations,’” but a plaintiff must make “‘a

11

showing, rather than a blanket assertion, of entitlement to relief’ that rises ‘above the
speculative level.’” McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The
“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 570). Such “facial plausibility” exists “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the conduct alleged.” Id.
Discussion
Various parties have filed objections to the reports and recommendations.
The court will address each in turn.
A. First Report and Recommendation
The magistrate judge issued two reports and recommendations. The court will
address the objections to each separately. Magistrate Judge Methvin’s first report
and recommendation addresses the motions to dismiss filed by Wright Township,
the Wright Township Police Department and Officer Michael Marshall (Doc. 63), the
City of Wilkes-Barre and the Wilkes-Barre Police Department (Doc. 67), Officer Brian
Stout (Doc. 90) and Officer Dennis Monk (Doc. 97).2
Plaintiffs raise several objections to the first report and recommendation. The

2

The parties have stipulated to the dismissal of Officers Stout and Monk from the
case, and their motions to dismiss have been granted as unopposed (Docs. 90, 97).
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court will address each in turn.3
i. False Arrest/Imprisonment Claim
Plaintiffs object to the magistrate judge’s finding that Plaintiff Cheryl James’s
false arrest and false imprisonment claim should be dismissed. The magistrate
judge found that plaintiffs had not alleged that Cheryl James had been seized, but
had simply been “persuaded” to go to the hospital with her daughter. She therefore
was not the subject of a false arrest. Likewise, Cheryl James has failed to allege
that she was not free to leave while riding in the ambulance to the hospital if she had
requested to do so. As such, the magistrate judge found, James could not make out
a false imprisonment claim.
The question here turns on whether Cheryl James has alleged that she was

3

In their brief in opposition to defendants’ motion, plaintiffs summarize defendants’
arguments as follows: “(1) that all state claims must be dismissed against the City of
Wilkes-Barre, the Wilkes-Barre City Police Department, and officer Charles Casey in his
official capacity because these entities are immune under the Pennsylvania Political
Subdivision Tort Claims Act (“PSTCA”), (2) that Plaintifs’ section 1983 claim for deprivation
of liberty without due process of law against these entities must fail because the Plaintiffs
have not pled that the acts or omissions of the police officers were a consequence of a
policy or custom of the City of Wilkes-Barre and (3) that Wilkes-Barre City Police
Department must be dismissed because it is merely an extension of the City of WilkesBarre and not a person subject to suit. Plaintiffs are inclined only to question the reasoning
of the second contention.” (Brief in Opposition to City of Wilkes-Barre Defendants’ Motion
to Dismiss (Doc. 83) at 8). At the conclusion of their brief, plaintiffs state that the court
“should deny the City Defendant’s Motion to Dismiss to the extent that it seeks dismissal
with prejudice of Count XIX against the City of Wilkes-Barre.” The court reads these
statements to say that plaintiffs do not oppose granting the motion on other grounds.
Therefore the plaintiffs’ state-law claims against these defendants will be dismissed and the
Wilkes-Barre Police Department will be dismissed from the case. The sole remaining claim
against any of these defendants, therefore, is a Section 1983 claim for deprivation of
liberty.
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seized by police when she went to the hospital with her daughter. The claim here is
a federal Fourth Amendment claim, as the parties have agreed that plaintiffs cannot
prevail on state–law tort claims against the municipality. As a general matter, “[t]o
prevail on [a] false arrest claim, plaintiffs would have to demonstrate at trial that the
police lacked probable cause to arrest” them. Groman v. Township of Manalapan,
47 F.3d 628, 634 (3d Cir. 1995). Thus, a plaintiff must show that an arrest occurred,
and that the arrest lacked probable cause. “Supreme Court decisions provide that a
seizure is a show of authority that restrains the liberty of a citizen, or a ‘governmental
termination of freedom of movement intentionally applied.’” Gallo v. City of
Philadelphia, 161 F.3d 217, 223 (3d Cir. 1998) (quoting County of Sacramento v.
Lewis, 523 U.S. 833, 844 (1998)); Berg v. County of Allegheny, 219 F.3d 261, 269
(3d Cir. 2000) (“A person is seized for Fourth Amendment purposes only if he is
detained by means intentionally applied to terminate his freedom of movement.”).
Similarly, “[a] false imprisonment claim under 42 U.S.C. § 1983 is based on the
Fourteenth Amendment protection against deprivations of liberty without due
process of law.” Groman, 47 F.3d at 636.
The court will sustain the plaintiffs’ objections and decline to adopt the report
and recommendation on this claim. Cheryl James alleges that “Wright Township
Police officers insisted that” she or her husband “travel with Nicole to the hospital.”
(Complt. at ¶ 54). She further alleges that she was “compelled by law to do so”
based on the statements of police officers. (Id. at ¶ 55). These allegations indicate

14

that police officers asserted their authority and compelled Cheryl James to
accompany her daughter to the hospital. She alleges that she had no choice in the
matter, and her freedom of movement was thereby intentionally terminated by the
actions of the police. Likewise, James alleges that she was confined at the direction
of the police in an ambulance and had no means of exiting that confinement. (Id. at
¶¶ 147-149). If she can prove these facts to a jury, should could prevail on her
claim. The plaintiffs may proceed on their Section 1983 false arrest and false
imprisonment claims.
ii. Municipal Liability
Plaintiffs likewise object to the magistrate judge’s recommendation that their
claims against the City of Wilkes Barre should be dismissed with prejudice because
they have failed to articulate a policy or custom that was the cause of the
constitutional violations they suffered. They argue that amendment of the complaint
should be allowed, as amendment would not be futile.
Under the standard articulated in Monell v. Dept. of Social Svcs of the City of
New York, 436 U.S. 659 (1978), “local governing bodies . . . can be sued directly
under §1983 . . . where, as here, the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.” Monell, 436 U.S. at 690.
Thus, “[a] public entity . . . may be held liable for the violation of a constitutional right
under 42 U.S.C. § 1983 only when the alleged unconstitutional action executes or

15

implements policy or a decision officially adopted or promulgated by those whose
acts may fairly be said to represent official policy.” Reitz v. County of Bucks, 125
F.3d 139, 144 (3d Cir. 1997). Liability exists when “‘there is a direct causal link
between a municipal policy or custom and the alleged constitutional deprivation.’”
Brown v. Muhlenberg Twp., 269 F.3d 205, 214 (3d Cir. 2001) (quoting City of Canton
v. Harris, 489 U.S. 378, 385 (1989)).
Defendants argue that plaintiffs have not pointed to any policy or custom that
was the cause of their injuries. As evidence that a policy or custom existed, plaintiffs
point to an incident report prepared in the case which “stat[ed] the officers’ reasons
for arresting and imprisoning Cheryl James.” (Plaintiffs’ Brief in Opposition to
Wilkes-Barre Defendants’ Motion to Dismiss (Doc. 83) at 9). The police department,
plaintiffs allege, “filed the report without any comment thereupon or any apology to
Cheryl James.” (Id.). This report is “evidence that a custom of involuntarily
examining and committing individuals who do not meet the requirements for
involuntary examination and commitment under the Mental Health Procedures Act.”
(Id.).
Plaintiffs allege that “Defendants Wilkes-Barre and Wilkes-Barre City Police,
through the Wilkes-Barre Police officers such as Charlie Casey, and with violence
upon the person of Cheryl James, forcibly arrested and imprisoned Cheryl James
while representing the horrors they exposed her to as being the lawful incidents of a
valid 302 arrest.” (Complt. at ¶ 273). Plaintiffs contend that defendants’ actions

16

“derived [Cheryl James] of her liberty without due process of law.” (Id. at ¶ 278).
Defendants subjected James to “an unreasonable search and seizure of [her] person
and imprisonment and torture.” (Id. at ¶ 281). Such conduct violated her
“constitutional rights under the Fourth and Fourteenth Amendments.” (Id. at ¶ 282).
The court agrees with the magistrate judge that plaintiffs have not stated a
claim for municipal liability with these allegations. Plaintiffs do not allege that any
policy or custom caused the deprivation of Cheryl James’s rights. Indeed, plaintiffs
themselves admit that the Wilkes-Barre police “acted through” Officer Casey in
subjecting Cheryl James to false arrest and improper search and seizure. The
plaintiffs pursue a respondeat superior theory of liability against the municipality.
Such claims are unavailable under Section 1983.
The court agrees with the plaintiffs, however, that the count should not be
dismissed with prejudice. See Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000)
(finding that “it is an abuse of discretion to deny leave to amend unless ‘plaintiff’s
delay in seeking amendment is undue, made in bad faith, prejudicial to the opposing
party, or [the amendment] fails to cure the jurisdictional defect.” (quoting Berkshire
Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 886 (3d Cir. 2000)). “Leave to
amend may be denied, however, if amendment would be futile.” Id. Plaintiffs could
allege facts that would demonstrate a policy or custom that caused the deprivation of
their rights. Amendment would not be futile. The court will therefore grant the
motion to dismiss the claims of municipal liability with leave to re-plead them.

17

iii. Punitive Damages
Plaintiffs also object to the magistrate judge’s finding that punitive damages
are unavailable in this case against municipalities and officials acting in their official
capacities and that there are no state-law claims which would permit punitive
damages. Plaintiffs contend that Counts II and III should not be dismissed, and
therefore punitive damages should remain in the case. Count II is a false arrest
claim brought against Wright Township, the Wright Township Police and Michael
Miller for false arrest. Count III is a false imprisonment claim brought against the
same defendants. Both these counts, plaintiffs insist, are brought pursuant to 42
U.S.C. § 1983.
The plaintiffs do not dispute that the state-law claims against these defendants
should be dismissed. They argue, however, that since federal counts remain in the
complaint, that punitive damages should be allowed pending discovery. Federal law
provides that “a municipality is immune form punitive damages under 42 U.S.C. §
1983.” Newport v. Fact Concerts, 453 U.S. 247, 271 (1981). Thus, punitive
damages cannot be obtained under these claims against the municipality and the
court will adopt the report and recommendation on this point. No punitive damages
may be obtained against the municipality or against any municipal officials acting in
their official capacities.
B. Second Report and Recommendation
Magistrate Judge Methvin’s second report and recommendation addresses

18

two other motions to dismiss. The first of these motions was brought by the
Wyoming Valley Health Care System, the Wilkes-Barre General Hospital, Repiratory
Therapist Tanya Ostopick and nurses Amy Craig, Beth Ann Noble, Brian Moran,
Ryan Seltzer, Carole Pirow, Kathy Vidumski and Jason Killian. (“Hospital
Defendants”). The second motion was brought by Doctors Russell James, Noel
Estioko, Maureen Licthman, and Physicians Assistant Laura Paulukonis (“Physician
Defendants”).
The second report and recommendation concluded that the motion to dismiss
should be denied in part and granted in part. The magistrate judge found that the
motion should be denied with respect to plaintiff’s claims brought pursuant to Section
1983 and the Pennsylvania Mental Health Procedures Act (“MHPA”), 50 P ENN. S TAT.
A NN. § 7302(a)(1). She also concluded that plaintiffs’ claims for negligent infliction of
emotional distress and intentional infliction of emotional distress should be dismissed
without prejudice to re-pleading the count. Plaintiffs’ claims for false imprisonment
and false arrest should not be dismissed, the magistrate judge found. Likewise, the
court concluded that plaintiffs’ assault and battery claims and negligence claims
should not be dismissed. Finally, the magistrate judge found that plaintiffs’ request
for punitive damages should not be dismissed.4

4

With the exception of plaintiffs’ claims brought pursuant to Section 1983 and the
MHPA, neither party filed objections. Therefore, in order to decide whether to adopt the
report and recommendation, the court must determine whether a review of the record
evidences plain error or manifest injustice. See, e.g., Sullivan v. Cuyler, 723 F.2d 1077,
1085 (3d Cir. 1983); FED . R. CIV . P. 72(b) 1983 Advisory Committee Notes (“When no
19

Both sets of defendants filed objections, which the court will address
successively.
1. Hospital Defendants
The Hospital Defendants have raised a number of objections to the report and
recommendation. The court will address each in turn.
i. Failure to Dismiss Section 1983 Claims
The WBGH Defendants contend that the magistrate judge erred in finding that
they could be liable under Section 1983. They insist that they are not state actors
and therefore are not covered by the statute. Instead, they are simply private,
individual health-care providers and other private entities. The corporate entities
among these defendants, the Wilkes-Barre Hospital Company and Wyoming Valley
Health Care System, also insists that they cannot be vicariously liable for any actions
of their employees.
In most Section 1983 cases, conduct by private actors is beyond the scope of
constitutional sanction, but “governmental authority may dominate an activity to such
an extent that its participants must be deemed to act with the authority of the
government and, as a result, be subject to constitutional constraints.” Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 620 (1991). Courts apply a two-part test to

timely objection is filed, the court need only satisfy itself that there is no clear error on the
face of the record to accept the recommendation”); 28 U.S.C. § 636(b)(1). After careful
review, the court finds no clear error and will adopt those portions of the report and
recommendation to which no objections were filed.
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determine whether a private actor can be subject to such constraints: first, courts ask
“whether the claimed constitutional deprivation resulted from the exercise of a right
or privilege having its source in state authority.” Id. Next, they inquire “whether the
private party charged with the deprivation could be described in all fairness as a
state actor.” Id.
The magistrate judge concluded that plaintiffs alleged they were subject to
involuntary mental health examinations performed under Pennsylvania law, and that
performing such examinations could arguably be considered state action. Courts
have split over whether physicians and hospitals acting in accord with state law to
detain and treat patients engage in state action. Because of this conflicting
authority, the magistrate judge concluded that plaintiffs have stated a claim. The
defendants object to this finding.
The court must address whether the defendants here can be seen as state
actors. First, the plaintiffs, in claiming that they were detained involuntarily for
medical treatment absent any procedures, have alleged a violation of a liberty
interest without due process and stated a constitutional claim. Addington v. Texas,
441 U.S. 418, 425 (1979) (“This Court repeatedly has recognized that civil
commitment for any purpose constitutes a significant deprivation of liberty that
requires due process protection.”). The plaintiffs have therefore satisfied the first
part of the test by alleging their constitutional rights were violated.
The only remaining question is whether defendants acted under color of state

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law in detaining plaintiffs. To determine whether a “private party could in all fairness
be regarded as a federal actor,” courts may apply any one of three tests: “(I) the
‘public function’ test, (ii) the ‘close nexus’ test and (iii) the ‘symbiotic relationship’
test.” Brown v. Philip Morris, Inc., 250 F.3d 789, 801 (3d Cir. 2001). “Regardless of
what test is ultimately applied, the object of the inquiry is to determine whether a
private entity has exercised powers traditionally reserved exclusively to the
government.” Id. A party engages in a “public function” when “the government is
effectively using the private entity in question to avoid a constitutional obligation or to
engage in activities reserved to the government.” Id. at 801-802. This test is a
“rigorous” inquiry, and “the ‘traditionally public function must be the ‘exclusive
prerogative of the [government].’” Id. at 802 (quoting Blum v. Yaretsky, 457 U.S. 991,
1004-5 (1982)). A “close nexus” exists when “the State ‘has exercised coercive
power or has provided such significant encouragement, either overt or covert, that
the choice must in law be deemed to be that of the State.’” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 52 (1999) (quoting Blum, 457 U.S. at 1004). The “‘symbiotic
relationship test’ . . . asks whether the government has ‘insinuated itself into a
position of interdependence’ with the defendant.” Brown, 250 F.3d at 803 (quoting
Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961)).
The statute at issue here is Section 302 of the MHPA, which provides for the
examination of persons suspected of being “severely mentally disabled and in need
of immediate treatment.” 50 P ENN. S TAT. A NN. § 7302(a)(1). A patient presented for

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examination pursuant to this statute “shall be examined by a physician within two
hours of arrival . . . to determine if the person is severely mentally disabled within the
meaning of section 301 and in need of immediate treatment.” 50 P ENN. S TAT. A NN. §
7302(b). “Treatment shall begin immediately” if the patient is deemed severely
mentally disabled. Id. Courts in this circuit and district have examined whether the
procedures mandated in the MHPA transform physicians into state actors. In Benn
v. Universal Health Sys., 371 F.3d 165 (3d Cir. 2004), the Court of Appeals for the
Third Circuit examined whether physicians who requested that a patient be
examined for involuntary admission were state actors. After undertaking the various
tests outlined above, the court concluded that “persons who petition for the
involuntary commitment of others are not state actors.” Id. at 173; see also Carver v.
Plyer, 115 Fed. Appx. 532, 538-9 (3d Cir. 2004) (even though “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 . . . [the doctors were therefore] not compelled by the MHPA to
commit and treat [plaintiff] and cannot therefore be considered a state actor in this
case.”); Janicsko v. Pellman, 774 F. Supp. 331, 339 (M.D. Pa. 1991) (“this court
cannot say that the involuntary commitment of the mentally ill by private physicians
and hospitals is, under the MHPA, a function compelled by or sufficiently connected
to state directives to attribute those actions to the state.”).

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Because authority in this circuit makes clear that a physician or other private
actor who follows the involuntary commitment procedures outlined in Section 302 of
the MHPA cannot be a state actor, the court will sustain the defendants’ objections
to this portion of the report and recommendation. The court will decline to adopt the
report and recommendation on this issue and grant the defendants’ motion to
dismiss this claim. In addition, the corporate entities’ motion on this point will also be
granted, since Section 1983 liability cannot obtain against a private actor.
ii. Failure to Grant Immunity under the Pennsylvania Mental
Health Procedures Act
Defendants also claim that they are immune from any claims premised on the
placement of 302 Holds on the plaintiffs under Pennsylvania law. Plaintiffs have not
alleged gross negligence, and the court must therefore dismiss plaintiffs’ claims.
“The MHPA gives broad immunity to physicians and others who participate in
the involuntary commitment process.” Benn, 371 F.3d at 175. The statute provides
that “‘in the absence of willful misconduct or gross negligence a [person who]
participates in a decision that a person be examined or treated under this act . . .
shall not be civilly or criminally liable for such decision or for any of its
consequences.’” Id. (quoting 50 P A. S TAT. A NN. § 7114(a)). In Pennsylvania, gross
negligence is “‘a form of negligence where the facts support substantially more than
ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the
defendant must be flagrant, grossly deviating from the ordinary standard of care.’”
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Walsh v. Borczon, 881 A.2d 1, 7 (Pa. Super. Ct. 2005) (quoting Albright v. Abington
Memorial Hosp., 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.’” Benn 371 F.3d at 175-6
(quoting Krivijanski v. Union R. Co., 515 A.2d 933, 937 (Pa. Super. Ct. 1986)).
The magistrate judge concluded that immunity for the defendants under the
MHPA is at this point premature. Plaintiffs have alleged that defendants did not
follow the procedures required by the MHPA, particularly in providing Cheryl James
with an assessment within two hours of the request for one, and that some of those
sued in tort were not persons authorized by the statute to enjoy this immunity.
Plaintiffs allege that by 1:38 A.M. on the day in question “General Hospital medical
personnel recognized that there were problems with Cheryl James’ risk assessment
and that Cheryl James may not have belonged strapped to a gurney in the
emergency room” but they continued to detain her. (Complt. at ¶ 95). James’s
hospital records do not indicate any mental health problems, but only that she was
angry at mistreatment and smelled of alcohol. (Id. at ¶ 96). Plaintiffs also allege that
James’s medical records are inconsistent, justifying restraint because James had
allegedly removed her clothing and tried to run off, even though a notation made one
minute later indicates she was clothed. (Id. at ¶ 98). James remained strapped to a
gurney for four hours, forced to use a bed pan to relieve herself, before a doctor

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examined her mental state. (Id. at ¶ 99-100).
The court will overrule the objections and adopt the report and
recommendation on this point. If plaintiffs can produce evidence to support the claim
that Cheryl James was left strapped to a gurney for four hours before being
examined, they can show that the medical defendants grossly deviated from the
standard of care, since the law requires a patient be seen within two hours.
Moreover, the court reads plaintiffs’ allegations to be that defendants acted to
restrain plaintiff and force her to undergo psychiatric evaluation, even though they
knew that she was not suffering from any condition requiring such restraint. If
plaintiff can prove these facts, plaintiff could demonstrate that defendants were
“consciously indifferent to the perpetration of a wrong.” Benn, 371 F.3d at 175-76.
iii. Failure to Dismiss Punitive Damages Claims
The WBGH Defendants also argue that magistrate judge erred in finding that
they could be liable for punitive damages. The conduct alleged against the
individual providers was not outrageous and does qualify for punitive damages, and
a health care provider cannot be vicariously liable in punitive damages for the
actions of its agents.
In Pennsylvania, “‘[p]unitive damages may be awarded for conduct that is
outrageous, because of the defendant’s evil motive or his reckless indifference to the
rights of others.’” Hutchinson ex rel. Hutchinson v. Luddy, 870 A. 2d 766, 770 (Pa.
2005) (quoting Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984)). Since “punitive

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damages are penal in nature,” they are available “only in cases where the
defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless
conduct.” Id. In determining whether to award punitive damages, “one must look to
‘the act itself together with all the circumstances including the motive of the
wrongdoers and the relations between the parties.’” Feld, 485 A.2d at 748. In
Pennsylvania, “[p]unitive damages shall not be awarded against a health care
provider who is only vicariously liable for the actions of its agent that caused the
injury unless it can be shown by a preponderance of the evidence that the party
knew of and allowed the conduct by its agent that resulted in the award of punitive
damages.” 40 P ENN. S TAT. A NN. § 1303.505(c).
The court finds that, as summarized above, plaintiffs have made allegations
of outrageous conduct sufficient to survive a motion to dismiss. The court will adopt
the report and recommendation on this point. Plaintiffs allege that the physician
defendants recklessly and outrageously allowed plaintiff to be subject to
unnecessary and unwanted medical treatment, despite her protests. Such
allegations are sufficient to allow for discovery that examines the motives and results
of the defendants’ alleged mistreatment. Likewise, the court will adopt the report
and recommendation as it relates to liability in punitive damages for the health-care
providers. As there are allegations of outrageous conduct, the court finds that
discovery is necessary to determine whether evidence exists to support claim that
the health-care providers knew of and allowed the alleged outrageous conduct to

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occur.
iv. Other Tort Claims
The magistrate judge also found that plaintiffs’ claims against these
defendants for negligent infliction of emotional distress, intentional infliction of
emotional distress and false arrest should be dismissed. The magistrate judge
concluded that plaintiffs’ claims for false arrest should be granted with prejudice. As
explained above, the parties do not object to these findings, and the court’s task is
merely to examine them for plain error or manifest injustice. Finding none, the court
will adopt the report and recommendation on this point.
2. Physician Defendants
The physician defendants likewise raise several objections to the report and
recommendation. The court will address each in turn.
i. Allegations Against Dr. Litchman Pursuant to Section 1983
Defendant Maureen Litchman, M.D., argues that the court should find the
magistrate judge erred in concluding that Litchman’s motion to dismiss as it pertains
to plaintiffs’ Section 1983 claims against her should be denied. Litchman claims that
Plaintiff Cheryl James did not allege that Litchman violated her constitutional rights
by illegally detaining her or otherwise mistreating her. Instead, the allegations
against the defendant amount only to negligence, which cannot give rise to a Fourth
Amendment claim or a due process claim.
The court will sustain the defendant’s objections on this matter. As explained
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above, a physician following the involuntary commitment procedures in the MPHA is
not a state actor and therefore cannot be liable under section 1983. The court will
grant Defendant Litchman’s motion on this claim.
ii. Claims Against Other Physicians
All of the physician defendants claim that the magistrate judge erred in not
dismissing the federal claims against them brought pursuant to 42 U.S.C. § 1983.
The physicians claim that they were not state actors in this instance and therefore
cannot be liable under the statute.
For the reasons stated above, the court will decline to adopt the report and
recommendation on this point and grant the physician defendant’s motion to dismiss
the Section 1983 claims against them.
iii. Allegations Brought Pursuant to the MHPA
The defendant physicians, including Defendant Litchman, argue that the
magistrate judge erred in not recommending dismissal of the negligence counts
against them brought pursuant to the Pennsylvania Mental Health Procedures Act
(“MHPA”). They contend that they are immune from liability under the MHPA, which
provides immunity from negligence claims to doctors treating mentally ill patients
under certain conditions. A physician can be liable under this statute only for
intentional acts or gross negligence, and plaintiffs have alleged mere negligence.
For the reasons stated above in reference to the hospital defendants, the court
will overrule the physician defendants’ objections and adopt the report and

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recommendation on this point.
iv. Punitive Damages Claims
The medical defendants likewise contend that, since all of the claims against
them should be dismissed, punitive damages are unavailable. The court erred in
finding that plaintiffs could obtain punitive damages against them, and thus claims
for such damages should be dismissed. For the reasons explained above in
reference to the hospital defendants, the court finds that plaintiffs have made
sufficient allegations of outrageous conduct to survive a motion to dismiss on this
claim. The court will overrule the defendants’ objections and adopt the report and
recommendation on this point.
v. Other Tort Claims
As explained above, no objections were filed to the magistrate judge’s report
and recommendation on some of plaintiffs’ tort claims. For the same reasons, the
court will adopt the report and recommendation on this point.
Conclusion
For the reasons stated above, the court will sustain the parties’ objections to
the reports and recommendations in part and overrule them in part. The court will
adopt the reports and recommendations in part and decline to adopt them in part.
Remaining in the case will be the plaintiffs’ Section 1983 claims for false arrest and
imprisonment against officer Michael Marshall and the plaintiffs’ MHPA claims
against the hospital and physician defendants. The court will also dismiss plaintiffs’
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claims against the municipal defendants brought pursuant to Section 1983 without
prejudice to plaintiffs re-pleading the claim and sufficiently alleging a municipal policy
or custom that caused their injuries. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHERYL JAMES;
WARREN JAMES; and
NICOLE JAMES,
Plaintiffs

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v.
THE CITY OF WILKES-BARRE;
WRIGHT TOWNSHIP;
WILKES-BARRE HOSPITAL
COMPANY, LLC, d/ba Wilkes-Barre
General Hospital;
THE WYOMING VALLEY HEALTH
CARE SYSTEM;
THE WILKES-BARRE CITY POLICE
DEPARTMENT;
THE WRIGHT TOWNSHIP POLICE
DEPARTMENT;
DR. RUSSELL ELMER JAMES;
DR. NOEL PACLEB ESTIOKO;
AMY LYNN CRAIG;
BETH ANN NOBLE;
LORA DENISE PAULUKONIS;
BRIAN THOMAS MORAN;
TANYA LYNN OSTOPICK;
RYAN RUSSELL SELTZER;
CAROLE FLEMING PIROW;
DENNIS MONK;
BRIAN STOUT;
MICHAEL MARSHALL;
CHARLIE CASEY;
KATHY PICKARSKI VIDUMSKI;
JASON FRANK KILLIAN; and
DR. MAUREEN M. LICTCHMAN
Defendants
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No. 3:10cv1534
(Judge Munley)

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 15th day of August 2011, the plaintiffs’ objections (Doc.
112) and the defendants’ (Docs. 116, 118) objections to the reports and
recommendations (Docs. 109-110) of Magistrate Judge Mildred E. Methvin are
hereby SUSTAINED IN PART and OVERRULED IN PART. The reports and
recommendations are hereby ADOPTED IN PART, as follows:
1. The motion to dismiss of the Wright Township, Wright Township Police
Department, and Michael Marshall (Doc. 63) is hereby GRANTED in part and
DENIED in part, as follows:
a. The motion is DENIED with respect to plaintiffs’ Fourth Amendment
claims for false arrest and false imprisonment brought pursuant to 28
U.S.C. § 1983;
b. The motion is GRANTED without prejudice with respect to plaintiffs’
claims for municipal liability brought pursuant to 28 U.S.C. § 1983; and
c. The motion is GRANTED with prejudice in all other respects;
2. The motion to dismiss of the City of Wilkes-Barre and the Wilkes-Barre
Police Department (Doc. 67) is hereby GRANTED IN PART and DENIED IN
PART, as follows:
a. The motion is DENIED with respect to plaintiffs’ Fourth Amendment
claims for false arrest and false imprisonment brought pursuant to 28
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U.S.C. § 1983;
b. The motion is GRANTED without prejudice with respect to plaintiffs’
claims for municipal liability brought pursuant to 28 U.S.C. § 1983; and
c. The motion is GRANTED in all other respects;
3. The motion to dismiss of the Wyoming Valley Health Care System, WilkesBarre Hospital Company, Amy Craig, Beth Ann Noble, Brian Moran, Tanya
Ostopick, Russell Seltzer, Carole Pirow, Kathy Vidumski and Jason Killian
(Doc. 68), is hereby GRANTED IN PART and DENIED IN PART, as follows:
a. The motion is GRANTED with respect to plaintiffs’ claim brought
pursuant to 42 U.S.C. § 1983 against these defendants;
b. The motion is GRANTED with respect to plaintiffs’ claim brought for
violations of the Pennsylvania Mental Health Procedures Act;
c. The motion is GRANTED without prejudice with respect to plaintiffs’
claims for negligent infliction of emotional distress and intentional
infliction of emotional distress;
d. The motion is GRANTED with prejudice with respect to plaintiffs’
false imprisonment claims; and
e. The motion is DENIED in all other respects; and
4. The motion to dismiss of Russell James, Noel Estioko, Lora Paulukonis,
and Maureen Litchman (Doc. 79) is hereby GRANTED IN PART and DENIED
IN PART, as follows:
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a. The motion is GRANTED with respect to plaintiff’s claim brought
pursuant to 42 U.S.C. § 1983 against these defendants;
b. The motion is GRANTED with respect to plaintiff’s claim brought for
violations of the Pennsylvania Mental Health Procedures Act;
c. The motion is GRANTED without prejudice with respect to plaintiffs’
claims for negligent infliction of emotional distress and intentional
infliction of emotional distress;
d. The motion is GRANTED with prejudice with respect to plaintiffs’
false imprisonment claims; and
e. The motion is DENIED in all other respects.

BY THE COURT:

s/ James M. Munley
JUDGE JAMES M. MUNLEY
UNITED STATES DISTRICT COURT

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