B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Officer Ramseyer also argues that Count VII fails to state a
claim for intentional infliction of emotional distress under
Illinois law because the alleged conduct is not sufficiently
extreme and outrageous to be actionable under Illinois law. This
In order to state a cause of action under Illinois law for
intentional infliction of emotional distress, a plaintiff must
allege that: (1) the defendant's conduct was extreme and
outrageous; (2) the defendant either intended that his conduct
should inflict severe emotional distress, or knew there was a
high probability that the conduct would cause severe emotional
distress; and (3) the defendant's conduct in fact caused severe
emotional distress. Anast v. Commonwealth Apartments,
956 F. Supp. 792, 802-03 (N.D.Ill. 1997). The threshold for extreme
and outrageous conduct is high. Anast, 956 F. Supp. at 803.
Conduct is extreme and outrageous only when reciting the facts to
an average community member would arouse her resentment against
the actor, and lead her to exclaim, "outrageous!" Anast, 956
F. Supp. at 803. Liability does not extend to mere insults,
indignities, threats, annoyances, petty oppressions or
trivialities that are part of the costs of complex society from
which the law provides no protection. Anast, 956 F. Supp. at
803. Liability has been found only where the conduct is so
outrageous in character, and so extreme in degree, as to go
beyond all bounds of decency. Anast, 956 F. Supp. at 803. The
law intervenes only when the distress inflicted is so severe no
reasonable person could be expected to endure it. Whitehead v.
AM Int'l, Inc., 860 F. Supp. 1280, 1291 (N.D.Ill. 1994). The
facts of each case are judged by an objective standard to
determine whether the alleged conduct was extreme and outrageous.
Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir.
1993). When the allegations of a plaintiff's complaint do not
meet the high threshold necessary to state a cause of action for
intentional infliction of emotional distress, dismissal is
proper. See Harriston, 992 F.2d at 703; Anast, 956 F. Supp. at
803; Whitehead, 860 F. Supp. at 1290-91; Khan v. American
Airlines, 266 Ill. App.3d 726, 203 Ill.Dec. 171, 639 N.E.2d 210,
215 (1994); Miller v. Equitable Life Assurance Society,
181 Ill. App.3d 954, 130 Ill.Dec. 558, 537 N.E.2d 887, 889-90 (1989).
In this case, Plaintiff's factual allegations are that she was
detained at the Medical Center from approximately 9:00 p.m. to
10:35 p.m., even though she was refusing treatment. In addition,
Plaintiff alleged that a blood test was taken against her will
and by "repeatedly grabb[ing] the Plaintiff's arm."
This court concludes that, even assuming that Plaintiff was
arrested and detained without probable cause, Plaintiff's
allegations do not reach the level of extreme and outrageous
conduct needed to establish a claim for intentional infliction of
emotional distress. In doing so, this court again recognizes that
the Supreme Court in Schmerber stated that blood tests are
"minor intrusions" and stated in Winston that, in society's
judgment, blood tests do not constitute an unduly extensive
imposition on an individual's personal privacy and bodily
integrity. In addition, a detention of approximately 1½ hours at
a Medical Center cannot be considered outrageous and extreme
under the circumstances here where Plaintiff was involved in an
automobile accident and agreed to be taken to the Medical Center.
Accordingly, this court finds that the conduct of Ramseyer, and
the other Defendants, was not so severe that a reasonable person
could not be expected to endure it, and did not go beyond all
possible bounds of decency. See Harriston, 992 F.2d at 703. As
a result, Count VII is dismissed.
III. MEDICAL CENTER DEFENDANTS' MOTION TO DISMISS
In their Motion to Dismiss, Defendants Peterson, Tedrick and
Covenant Medical Center argue: (1) that the § 1983 claims against
Peterson and Tedrick must be dismissed because they are private
individuals and not state actors; (2) that all of the counts
based upon Illinois law must be dismissed because the actions of
Peterson and Tedrick were authorized by Illinois statute (625
Ill. Comp. Stat. 5/11-501.2 (West 1996); (3) the
state law claims must be dismissed because Illinois provides by
statute for civil immunities for Defendants' conduct (625 Ill.
Comp. Stat. 5/11-500.1); (4) the state law claims must be
dismissed because Plaintiff failed to file an affidavit as
required by 735 Ill. Comp. Stat. 5/2-622 (West 1996)); (5) the
claims for breach of fiduciary duty must be dismissed because no
fiduciary duty existed based upon the facts plead; and (6)
Plaintiff failed to state a cause of action for intentional
infliction of emotional distress.
A. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
For the reasons just discussed in considering Defendant
Ramseyer's Motion to Dismiss, this court concludes that Counts
XVI and XIX alleging claims of intentional infliction of
emotional distress against Peterson and Tedrick do not reach the
necessary threshold of outrageous and extreme conduct. As a
result, Counts XVI and XIX are dismissed.
B. SECTION 1983 CLAIMS — STATE ACTION
In Counts X, XI, XX, and XXI, Plaintiff alleges that Peterson
and Tedrick are liable for damages under § 1983 based upon
unlawful seizure and unlawful search. Section 1983 imposes
liability only where a person acts "under color" of a state
"statute, ordinance, regulation, custom, or usage."
42 U.S.C. § 1983; Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100,
2103, 138 L.Ed.2d 540 (1997). However, § 1983 can sometimes
impose liability upon a private individual. Richardson, 117
S.Ct. at 2103. In determining whether a private individual's
action constitutes state action, courts have looked to the level
of government involvement in the private individual's actions.
Anast, 956 F. Supp. at 797. A state can be held responsible for
a private decision only when it has exercised coercive power, or
has provided such significant encouragement, that the choice must
be deemed to be that of the state. Wade v. Byles, 83 F.3d 902,
905 (7th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 311,
136 L.Ed.2d 227 (1996); Anast, 956 F. Supp. at 797-98.
In this case, Plaintiff alleges that Ramseyer ordered Peterson
to draw blood from Plaintiff and that Tedrick then performed the
blood test. She also alleges that Ramseyer, Peterson and Tedrick
were acting in concert to detain Plaintiff. This court concludes
that Plaintiff has sufficiently alleged that Ramseyer exercised
coercive power so that the actions of Peterson and Tedrick may be
deemed those of the state. Accordingly, Counts X, XI, XX and XXI
cannot be dismissed on this basis.
These counts, however, like the § 1983 counts against Ramseyer,
cannot be maintained by Plaintiff if probable cause existed for
her arrest. Accordingly, proceedings regarding these counts will
also be stayed pending the outcome of Plaintiff's appeal to the
Illinois Appellate Court.
This court further notes that Plaintiff cannot maintain a §
1983 cause of action against Peterson and Tedrick based upon her
brief detention at the Medical Center prior to Ramseyer's
arrival. Prior to Ramseyer's arrival, there was no state action.
See, e.g., Copeland v. Northwestern Memorial Hosp., 964 F. Supp. 1225,
1238-40 (N.D.Ill. 1997) (hospital and its staff members'
actions not taken under color of state law and did not constitute
arrest, interrogation or jailing of plaintiff where complaint
alleged that plaintiff voluntarily went to the hospital's
emergency room, a nurse and doctor interrogated plaintiff
regarding his commission of a bank robbery and placed him in a
locked observation room, the nurse later returned with two
Chicago police officers who arrested him and the nurse told the
officers that the hospital was holding plaintiff for them).
C. REMAINING STATE LAW CLAIMS
Defendants Peterson, Tedrick and Covenant Medical Center also
argue that the state law claims against them must be dismissed
because their actions were authorized by an Illinois statute.
Section 11-501.2 of the Illinois Vehicle Code provides, in
Notwithstanding any ability to refuse under this
Code to submit to these tests or any ability to
revoke the implied consent to these tests, if a law
has probable cause to believe that a motor vehicle
driven by or in actual physical control of a person
under the influence of alcohol, any other drug, or
combination of both has caused the death or personal
injury to another, that person shall submit, upon the
request of a law enforcement officer, to a chemical
test or tests of his or her blood, breath or urine
for the purpose of determining the alcohol content
thereof or the presence of any other drug or
combination of both. 625 Ill. Comp. Stat.
5/11-501.2(c)(2) (West 1996).
Defendants attached the affidavit of Michael Cloyd to their
Motion to Dismiss. In his affidavit, Cloyd states that, on March
15, 1997, he was a passenger in a vehicle involved in a motor
vehicle accident with a vehicle driven by Plaintiff. He also
states that he was injured in the accident and was taken to
Covenant Medical Center by ambulance for treatment of a bleeding
This court notes that a district court, in ruling on a motion
to dismiss pursuant to Rule 12(b)(6), generally cannot consider
material outside the pleadings unless it converts the motion to
dismiss into a motion for summary judgment and offers the other
party an opportunity to respond. Fed R. Civ. P. 12(b); Edward
Gray Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa.,
94 F.3d 363, 366 (7th Cir. 1996). However, in this case,
Plaintiff does not dispute that the accident caused personal
injury to Cloyd and this fact is consistent with the allegations
in Plaintiff's complaint. Because the parties agree on this fact,
it is permissible for this court to consider this fact as
stipulated in ruling on the Motion to Dismiss. See Duferco Steel
Inc. v. M/V Kalisti, 121 F.3d 321, 324 n. 3 (7th Cir. 1997); see
also People v. Ruppel, No. 4-97-0509 (December 31, 1997)
(unpublished order), leave to appeal denied, People v. Ruppel,
177 Ill.2d 582, 232 Ill.Dec. 456, 698 N.E.2d 547 (1998) (parties
stipulated an accident involving bodily injury occurred).
Plaintiff does not dispute that section 11-501.2(c)(2) of the
Illinois Motor Vehicle Code applies based upon the facts of this
case. However, she argues that the statute does not authorize a
law enforcement officer to order a blood test under these
circumstances. She contends that the statute contemplates a
"request" by a law enforcement officer which a person "shall"
submit to. However, she asserts that the person still does, in
fact, have the ability to refuse the test subject to the fact
that evidence of the refusal is admissible in a civil or criminal
proceeding. See 625 Ill. Comp. Stat. 5/11-501.2(c)(1) (West
1996). The Illinois Appellate Court rejected this strained
interpretation of section 11-501.2(c)(2) when Plaintiff made the
argument in appealing the summary suspension of her driver's
license. Ruppel, No. 4-97-0509, slip op. at 5. This court also
concludes that the plain language of section 11-501.2(c)(2)
authorizes a law enforcement officer to order a blood test when
the suspect refuses to submit to a blood test. This
interpretation is also consistent with the well established case
law cited previously by this court. Accordingly, this court finds
that section 11-501.2(c)(2) authorized Ramseyer to order the
blood test, providing he had probable cause to believe Plaintiff
was under the influence of alcohol, even if Plaintiff did not
consent. See Connor v. Foster, 833 F. Supp. 727, 732 (N.D.Ill.
More importantly, section 11-500.1 of the Illinois Vehicle Code
(a) A person authorized under this Article to
withdraw blood or collect urine cannot be civilly
liable for damages when the person, in good faith,
withdraws blood or collects urine for evidentiary
purposes under this Code, upon the request of a law
enforcement officer, unless the act is performed in a
willful and wanton manner.
(b) As used in this Section, "willful and wanton
manner" means a course of action that shows an actual
or deliberate intention to cause harm or which, if
not intentional, shows an utter indifference to or
conscious disregard for the health or safety of
another. 625 Ill. Comp. Stat. 5/11-500.1 (West 1996).
This section was recently enacted by the Illinois legislature and
was effective December 31, 1996.