Case Information
*2 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, *3 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 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).
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,
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. 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,
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,
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,
Shipman,
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,
*8
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. W hile 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.,
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
*9
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.,
Appellants’ assertion that a federal court cannot exercise jurisdiction over
supplemental state claims once it determines it lacks subject matter jurisdiction, Ray v.
Eyster,
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.,
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.,
Similarly, in Pino v. Higgs,
*11 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.
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.
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,
We affirm the judgment of the District Court.
Notes
[2] The original Notice of Appeal filed on January 8, 2004 stated that appellant, Jean Carver, was appealing “from the May 02, 2003 entered order [sic] that granted summary judgment to St Lukes Hospital [sic].” After the appeal was filed, an Amended Notice of Appeal was filed on January 28, 2004 stating that Plaintiffs Jean Carver and Charles Kimble Booz were appealing from the May 2, 2003 order “and the January 26, 2004 Order denying Plaintiffs’ Locale [sic] Procedural Rule 41.1 motion to reinstate the case under [sic].” The May 2, 2003 Order of the District Court contained a statement that “Judgment is entered in favor of St. Luke’s Hospital, Joanne E. Hullings and Terri Bohrer and against the Plaintiffs.” Nevertheless, sufficient reasons were not given for entering judgment as to less than all the parties as required by Fed. R. Civ. P. 54(b), and it appears from the docket that a separate document entering judgment was never filed as required by Fed. R. Civ. P. 58(a)(1). Accordingly, we believe the May 2, 2003 Order of the District Court did not become final and appealable until the District Court entered its Order dismissing the entire action with prejudice on January 5, 2004.
[4] It appears that the Pino court actually indirectly performed the “state compulsion” 1 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