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September 30, 1991

DANA J. HENRY, Plaintiff,
JAMES E. RYAN, et al., Defendants

The opinion of the court was delivered by: BUA


 On December 4, 1988, plaintiff Dana Henry received a call from DuPage County Deputy Sheriff George Wick. *fn1" Deputy Sheriff Wick requested that Henry come to his office and answer questions in connection with an investigation into the death of Kristina Wesselman. Wick told Henry that Henry was not a suspect in the investigation. Henry agreed to go and answer questions. Seven days later, Henry received another call from Deputy Sheriff Wick. This time Wick requested that Henry come to his office and provide blood and saliva samples. Henry refused.

 Undeterred by Henry's answer, Deputy Sheriff Wick served Henry with a subpoena which directed Henry to provide blood and saliva samples. The subpoena was obtained by George Wick; Robert Kilander, First Assistant States's Attorney of DuPage County; and Joseph Birkett, Assistant State's Attorney of DuPage County. Henry did appear before the DuPage County Grand Jury, but he again refused to provide the samples.

 On January 23, 1989, the State's Attorney filed in the Circuit Court of DuPage County a Petition for Rule to Show Cause why Henry should not be held in contempt. The public defender appointed to represent Henry responded by filing a motion to quash the subpoena. On February 6, 1989, the circuit court denied Henry's motion to quash and ordered that he comply with the subpoena. When Henry continued in his refusal to comply, the state court held him in contempt and ordered that he be jailed until he provided the samples. After the circuit court refused to stay enforcement of its order, Henry was taken to the DuPage County Jail.

 Upon Henry's arrival at the Jail, he was interviewed by a DuPage County Deputy Sheriff. He was then seen by Goldena McGee, an employee of Correctional Medical Systems of Illinois, Inc. ("CMS"), a private company that provides medical services and health care evaluations to inmates detained at DuPage County Jail. McGee ordered that Henry be placed on suicide watch. Her orders were ratified by John O'Berhelman, a physician and an employee of CMS. Based on these orders, Deputy Sheriffs Kenneth Wiess, Stephen Nolan and Gary Lavery told Henry to strip. They took away his clothes and placed him in an observation cell.

 Eight hours after being put in the observation cell, Henry decided to provide the blood and saliva samples. Deputy Sheriffs Wayne Howlett and Louis Sedares took Henry to Glendale Heights Community Hospital where the samples were extracted. Even though Henry provided the samples, he was still detained, naked, in the observation cell until approximately 8:30 p.m. on February 6, 1989. He was then released.

 On the basis of these experiences, Henry has brought a 42 U.S.C. § 1983 suit against the County of DuPage; the State's Attorney of DuPage County, James Ryan; the DuPage County Sheriff, Richard Doria; those officials named in the preceding statement of facts; CMS; and two CMS employees. A number of defendants have filed motions to dismiss Henry's complaint. Each will be considered below.

 I. Motion to Dismiss - - Goldena McGee, John O'Berhelman, CMS

 The crux of the motion submitted by Goldena McGee, John O'Berhelman and CMS is that they are entitled to qualified immunity from Henry's request for damages. *fn2" There is no doubt that CMS and its employees are governmental actors for purposes of a 42 U.S.C. § 1983 suit. In West v. Atkins, 487 U.S. 42, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988), the Court held that a physician who provided medical services to prison inmates pursuant to a state contract acted under color of state law. Here, CMS entered into a contract with the DuPage County Jail to provide medical services and health care evaluations to those in custody. The company and its employees agreed to assume the government's obligation of providing adequate medical care. Thus, CMS and its employees can be considered state actors.

 A determination that CMS and its employees are state actors, though, does not automatically render them eligible for qualified immunity. The Supreme Court has yet to decide whether the shield of qualified immunity should be extended to private persons named in a § 1983 suit. In Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 942 n. 23, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982), the Court intimated that it might consider providing private individuals with an affirmative defense, possibly qualified immunity, but the Court has never actually extended that protection. Nor has the issue been decided by the Seventh Circuit. *fn3"

 Those appellate courts that have extended qualified immunity to private persons have done so based on the fact that the individuals were acting pursuant to a valid state law or a governmental contract. Where parties have acted pursuant to a presumptively valid garnishment or attachment statute, courts have been loath to penalize the parties for following what they assumed to be valid law. Folsom Inv. Co., Inc. v. Moore, 681 F.2d 1032, 1037 (5th Cir. 1982); Buller v. Buechler, 706 F.2d 844, 852 (8th Cir. 1983). That same reasoning has been applied to private parties acting under a governmental contract. In DeVargas v. Mason & Hangar-Silas Mason Co., Inc., a company providing services to a laboratory that operated under government contract refused to hire an individual because the company thought that government regulations prohibited the hiring. The Tenth Circuit found that the company was entitled to qualified immunity. However, the court limited its holding to circumstances where private party defendants acted in "accordance with the duties imposed by a contract with a governmental body, performed a governmental function, and [were] sued solely on the basis of those acts performed pursuant to contract." DeVargas, 844 F.2d 714, 722 (10th Cir. 1988), cert.denied, 112 L. Ed. 2d 860, 111 S. Ct. 799 (1991). The court explicitly reserved judgment "on the propriety of granting qualified immunity when a private contractor performing a governmental function, such as operating a prison, performs acts not required by contract, and is sued for those acts." Id. at 722 n. 11.

 At this stage in the proceedings, it is not possible to determine whether the limited circumstances supporting an extension of immunity are present in this case. Although the company and its employees seem to have been performing a function ordinarily within the government's province, it is not clear whether the actions taken by CMS and its employees were pursuant to a policy dictated by contractual terms and/or applicable state law. Therefore, the court declines to rule on this issue until it obtains facts ...

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