# Darden v. Suffolk County First Precinct

> District Court, E.D. New York · August 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10659204

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 16, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
TOBIAS DARDEN,

Plaintiff,
MEMORANDUM AND ORDER
-against- 2:21-CV-05132 (OEM) (ST)

THE COUNTY OF SUFFOLK, THE SUFFOLK
COUNTY POLICE DEPARTMENT, SERGEANT
JOHN DOE 1 in his official and individual capacity,
POLICE OFFICERS JOHN/JANE DOES #1-10 in
their official and individual capacities, GOOD
SAMARITAN UNIVERSITY HOSPITAL, ER
DOCTOR JOHN/JANE DOE 1 ER NURSES,
JOHN/JANE Does #1-5, RADIOLOGIC
TECHNOLOGIST JOHN/JANE DOE #1-2, in their
official and individual capacities,

Defendants.
----------------------------------------------------------------x
ORELIA E. MERCHANT, United States District Judge:
On September 14, 2021, Plaintiff Tobias Darden (“Plaintiff” or “Darden”) commenced this
action, filing a complaint pro se against four pseudonymous police officers. See Complaint at 2-
3. Plaintiff filed an amended complaint on July 10, 2023, bringing claims against County of
Suffolk (the “County”), the Suffolk County Police Department (the “SCPD”), Sergeant John Doe
1, Police Officers John/Jane Does #1-10, (collectively, the “SCPD John Does”), Good Samaritan
University Hospital (“Good Samaritan”), ER Doctor John/Jane Doe 1, ER Nurses John/Jane Does
#1-5, and Radiologic Technologist John/Jane Does #1-2 (collectively, the “Medical John Does,”
together with the County, the SCPD, the SCPD John Does, and Good Samaritan, “Defendants”).
Before the Court is Good Samaritan’s motion for judgment on the pleadings, filed on January 22,
2024, and Plaintiff’s second motion for leave to file an amended complaint, filed December 14,
2023. For the reasons that follow, Good Samaritan’s motion for judgment on the pleadings is
GRANTED and Plaintiff’s second motion for leave to file an amended complaint is DENIED
without prejudice.
BACKGROUND

Plaintiff is a resident of Suffolk County, New York who was pulled over by a SCPD officer
on July 11, 2020. Amended Complaint (“Am. Compl.”), ECF 19 at 4. Plaintiff alleges that, during
the stop, SCPD officers found “a small quantity of marijuana” in Plaintiff’s driver’s side door and
began to search Plaintiff and his car. Id. at 5-6. Plaintiff alleges that after SCPD officers found
nothing further, they “used their legs to bring [Plaintiff] to the ground,” “tased [Plaintiff]” twice,
and handcuffed him. Id. at 6-7. Plaintiff alleges that an SCPD officer then “pulled down
[Plaintiff’s sweat pants looked at [Plaintiff’s] genitals and then […] takes his fingers and swipes
his fingers up and down [Plaintiff’s] buttocks” three times. Id. at 7. Plaintiff alleges that an SCPD
officer then accused him of swallowing something, saying “YOU SWALLOWED IT, WHAT’S
THE MATTER WITH YOU MAN, YOU SWALLOWED IT, LOOK WHAT YOU DID.” Id. at

8.
SCPD officers next allegedly transported Plaintiff to Good Samaritan in West Islip, New
York, performing another search of Plaintiff’s genitals and buttocks “about 50ft away from the
driveway to the hospital.” Id. At Good Samaritan, Plaintiff was allegedly accompanied at all
times by two SCPD officers and “forced to undergo x-rays as requested by Defendants to see if
there were any drugs in his body.” Id. at 9. Plaintiff alleges that “[t]his x-ray confirmed that
Plaintiff did not have a foreign body secreted in his abdomen.” Id. An emergency room doctor
then allegedly gave Plaintiff an unknown liquid medication while Plaintiff “tried to explain to the
[doctor] that he had been beaten up and fondled by the defendants.” Id. Plaintiff alleges that he
was not allowed to finish this conversation and was not examined for his injuries. Id. at 10.
Plaintiff was then allegedly taken from Good Samaritan to the SCPD’s First Precinct,
placed under arrest for unlawful possession of marijuana, resisting arrest, and aggravated

unlicensed operation of a motor vehicle, and given a traffic violation of driving without a seatbelt.
Id. Plaintiff was then released. Id. Plaintiff alleges that “[a]ll Defendants [were] acting under
color of law,” id. at 11, and brings claims pursuant to 42 U.S.C. § 1983 (“§ 1983”) against all
Defendants and brings negligence claims against Good Samaritan and the Medical John Does.
DISCUSSION
I. Good Samaritan’s Motion for Judgment on the Pleadings
A. Legal Standard
“In deciding a Rule 12(c) motion [for judgment on the pleadings], we apply the same
standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in
the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. A

complaint will only be dismissed under Rule 12(c) if it appears beyond doubt that the [nonmoving
party] can prove no set of facts in support of his claim which would entitle him to relief.” Byrd v.
City of New York, 04- CV-1396-, 2005 WL 1349876, at *1 (2d Cir. June 8, 2005) (cleaned up).
“To survive a motion to dismiss [under rule 12(b)(6)], Plaintiff’s complaint must meet the Iqbal-
Twombly pleading standard and ‘must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
B. Plaintiff’s § 1983 Claims
Plaintiff brings a variety of claims against Good Samaritan pursuant to § 1983, which
provides that “every person who, under color of any statute, ordinance, regulation, custom or usage
of any state or territory or the District of Columbia, subjects or causes to be subjected, any citizen

of the United States to the deprivation of any rights, privileges, or immunity secured by the
Constitution and laws, shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983.
A plaintiff bringing a § 1983 claim “must show both that he has been [1] deprived of a right secured
by the ‘Constitution and laws’ of the United States and [2] that the defendant acted ‘under color
of any statute ... of any State.’” Lugar v. Edmondson Oil Co., 457 U.S. 922, 931 (1982) (cleaned
up).
“The traditional definition of acting under color of state law requires that the defendant in
a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42,
49 (1988). “State action may properly be found where the state exercises coercive power over, is

entwined in [the] management or control of, or provides significant encouragement, either overt
or covert, to, a private actor, or where the private actor operates as a willful participant in joint
activity with the State or its agents, is controlled by an agency of the State, has been delegated a
public function by the state, or is entwined with governmental policies.” Tancredi v. Metropolitan
Life Ins. Co., 316 F.3d 308, 313 (2d Cir. 2003), cert. denied, 539 U.S. 942, 123 (2003) (cleaned
up).
These methods of finding state action by nominally private persons have been categorized
into three main tests: compulsion, joint action, and public function. See Fabrikant v. French, 691
F.3d 193, 207 (2d Cir. 2012) (“For the purposes of section 1983, the actions of a nominally private
entity are attributable to the state ... (1) [when] the entity acts pursuant to the coercive power of
the state or is controlled by the state (‘the compulsion test’); (2) when the state provides significant
encouragement to the entity, the entity is a willful participant in joint activity with the state, or the
entity’s functions are entwined with state policies (‘the joint action test’ or ‘close nexus test’); or

(3) when the entity has been delegated a public function by the state (‘the public function test’).”).
Plaintiff “bears the burden of proof on the state action issue.” Hadges v. Yonkers Racing Corp.,
918 F.2d 1079, 1083 n.3 (2d Cir. 1990), cert. denied, 499 U.S. 960 (1991). “As a general rule,
private hospitals do not act under the color of law for § 1983 purposes.” Doe v. Rosenberg, 996
F.Supp. 343, 356 (S.D.N.Y. 1998).
Good Samaritan contends that it was not acting under color of law pursuant to any of these
three tests. Plaintiff concedes that “[a] private physician is not ordinarily a state actor under the
compulsion, joint action or public function test,” but nevertheless argues that in this instance Good
Samaritan was functioning as a state actor under all three tests. See Plaintiff’s Opposition to Good
Samaritan’s Motion for Judgment on the Pleadings (“Opp.”) at 9-17. The Court addresses each

test separately.
1. Compulsion Test
Plaintiff contends that Good Samaritan was a state actor pursuant to the compulsion test
because “[b]ut for doing the bidding of Defendant Officers, [Good Samaritan] did not have any
medical basis or reason to treat or examine [Plaintiff].” Id. at 11. Plaintiff contends that Good
Samaritan staff only examined Plaintiff because the “Defendant Officers provided such significant
encouragement” to Good Samaritan staff that they “felt compelled and agreed to violate
[Plaintiff].” Id.
Private decisions may be considered state action for § 1983 purposes where 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.” Blum v. Yaretsky, 457 U.S. 991,
1004 (1982).

Despite Plaintiff’s assertions to the contrary in his opposition papers, Plaintiff’s amended
complaint is devoid of any indicia that the SCPD exerted “coercive power” over Good Samaritan
staff or engaged in “such significant encouragement […] that the choice must be in law deemed to
be that of the State.” Id. To the contrary, Plaintiff’s complaint describes SCPD officers conveying
to Good Samaritan staff that they suspected Plaintiff had ingested drugs during the traffic stop and
“requested” that Plaintiff undergo an x-ray. Am. Compl. at 9. Plaintiff does not make any
allegations that SCPD officers threatened, badgered, or in any other way compelled Good
Samaritan staff to provide Plaintiff with an x-ray. Under these circumstances, with ample reason
for Good Samaritan staff to perform a diagnostic x-ray to ensure Plaintiff was not at risk of a
medical crisis from ingested narcotics, Plaintiff has not carried his burden in pleading state

compulsion.
2. Joint Action/Close Nexus Test
Under the joint action test, a private actor may engage in state action for § 1983 purposes
when “when the state provides significant encouragement to the entity, the entity is a willful
participant in joint activity with the state, or the entity’s functions are entwined with state policies.”
Fabrikant, 691 F.3d at 207. “To establish joint action, a plaintiff must show that the private citizen
and the state official shared a common unlawful goal; the true state actor and the jointly acting
private party must agree to deprive the plaintiff of rights guaranteed by federal law.” Bang v.
Utopia Rest., 923 F. Supp. 46, 49 (S.D.N.Y. 1996).
“Put another way, ‘[a] nexus of ‘state action’ exists between a private entity and the state
when the state ... is entwined in the management or control of the private actor, or provides the
private actor with significant encouragement, either overt or covert ... or is entwined with
governmental policies.’” Colabella v. Am. Inst. of Certified Pub. Accts., 10-CV-2291 (KAM)

(ALC), 2011 WL 4532132, at *12 (E.D.N.Y. Sept. 28, 2011) (quoting Flagg v. Yonkers Savs. and
Loan Ass’n, FA, 396 F.3d 178, 187 (2d Cir.2005)). “However, generalized or conclusory
allegations of conspiracies are insufficient to sustain a section 1983 claim, and complaints that
lack further specificity or ‘specific instances of misconduct’ are subject to dismissal.” Vazquez v.
Combs, 04-CV-4189 (GEL), 2004 WL 2404224, at *3 (S.D.N.Y. Oct. 22, 2004).
Plaintiff contends that Good Samaritan staff and SCPD officers “shared a common
unlawful goal of performing an extremely invasive body cavity search against Mr. Darden’s will
and consent,” and alleges that Good Samaritan and the SCPD were engaged in a symbiotic
relationship such that the SCPD had “so far insinuated itself into a position of interdependence
with the acting party that it must be recognized as a joint participant in the challenged activity.”

Opp. at 13-14 (quoting Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)).
These allegations are not borne out in Plaintiff’s complaint. As an initial matter, Plaintiff
does not allege in his complaint that Good Samaritan had any involvement with any body cavity
searches of Plaintiff, which he alleges took place entirely outside of the hospital. See Am. Compl.
at 7-8. Moreover, nothing in Plaintiff’s complaint suggests that the SCPD and Good Samaritan
shared a common goal: the mere allegation that Good Samaritan staff x-rayed Plaintiff after SCPD
officers told them Plaintiff may have ingested narcotics is not any more indicative of a common
plan to violate Plaintiff’s rights than it is indicative of hospital staff attempting to address a
potential medical emergency. Nor does Plaintiff in any way allege that the “unknown liquid
medication” given to Plaintiff was administered on the behest of the SCPD. Id. at 9. Based on the
allegations in Plaintiff’s amended complaint, Plaintiff has not carried his burden in alleging joint
action such that Good Samaritan may be considered a state actor.
3. Public Function Test

Pursuant to the public function test, a plaintiff may allege a private entity engaged in state
action “when the entity has been delegated a public function by the state.” Fabrikant, 691 F.3d at
207. The Supreme Court has held that, in assessing the public function test, “the relevant question
is not simply whether a private group is serving a ‘public function’ […] [T]he question is whether
the function performed has been ‘traditionally the exclusive prerogative of the State.’” Rendell-
Baker v. Kohn, 457 U.S. 830, 842 (1983).
Plaintiff briefly addresses this point in his opposition, contending that “[i]n this case, the
court must review whether the Hospital’s body cavity search was a function that is traditionally
under the exclusive authority of the police officers. The Hospital was not acting under their
medical authority since they had no reason to receive Mr. Darden to the hospital for his own safety

without a medical cause of examination.” Opp. at 17.
Again, however, Good Samaritan staff indeed did have a reason to provide Plaintiff with
an x-ray for his own safety: it had been suggested that Plaintiff may have ingested an unknown
quantity of narcotics immediately prior to his admission. Providing diagnostic medical care to
Plaintiff under these circumstances is not a function that has been traditionally the exclusive
prerogative of the State. See, e.g., Schlein v. Milford Hosp., Inc., 561 F.2d 427, 429 (2d Cir. 1977)
(“Although the activities of [private hospital] are clearly ‘affected with a public interest’ the
functions performed by it have not been ‘traditionally associated with sovereignty,’ and have long
been relegated to the private domain, rather than treated as ‘traditionally the exclusive
prerogative of the State.’”); Kavazanjian v. Rice, 03-CV-1923 (FB), 2008 WL 5340988, at *12
(E.D.N.Y. Dec. 22, 2008) (“Providing isolated emergency treatment to a prisoner on equal terms
with the general public […] does not constitute state action.”). Therefore, Plaintiff has failed to
carry his burden in adequately alleging that Good Samaritan was performing a public function for

§ 1983 purposes.
Because Plaintiff has failed to adequately allege that Good Samaritan was engaged in state
action pursuant to the compulsion test, the joint action test, or the public function test, Plaintiff’s
§ 1983 claims against Good Samaritan are hereby dismissed.
B. State Law Claim
Plaintiff’s remaining claim against Good Samaritan, Plaintiff’s eleventh cause of action, is
labeled in the amended complaint as “negligence.” Am. Compl. at 28. In this claim, Plaintiff
contends that “as Plaintiff was placed under the medical care of” Good Samaritan, Good Samaritan
“owed Plaintiff a duty of reasonable care, including reasonable medical care.” Plaintiff contends
that Good Samaritan breached this duty in “not treat[ing him] for any medical condition, despite

his attempt to advise hospital staff of his need to have such treatment” and in “testing and
invasively using x-ray machines to look into Mr. Darden’s body.” Id. at 28. In his opposition,
Plaintiff contends that he has brought “Negligence, Medical Mal-Practice and Federal Claims
against [Good Samaritan].” Opp. at 22.
For the purposes of determining the appropriate statute of limitations for Plaintiff’s claim,
this Court must determine whether the substance of his claim sounds in medical malpractice or in
regular negligence. See, e.g., Scott v. Uljanov, 74 N.Y.2d 673, 674–75 (1989) (“In that medical
malpractice is simply a form of negligence, no rigid analytical line separates the two, although for
policy reasons the Legislature has chosen to affix different Statutes of Limitations to medical
negligence (or malpractice) and negligence generally. Conduct may be deemed malpractice, rather
than negligence, when it ‘constitutes medical treatment or bears a substantial relationship to the
rendition of medical treatment by a licensed physician.’ On this record, we agree with the
Appellate Division dissenters that, for purposes of determining the applicable Statute of

Limitations, defendant hospital’s alleged wrongdoing must be characterized as medical
malpractice rather than negligence.”) (cleaned up).
Though Plaintiff contends in his opposition that he has distinct claims for regular
negligence and medical malpractice, the substance of his eleventh cause of action belies this
assertion. Plaintiff’s eleventh cause of action results entirely from “the rendition of medical
treatment by a licensed physician” and therefore is, in substance, a medical malpractice claim
rather than a regular negligence claim. Id.
In New York, medical malpractice claims must be commenced within two years and six
months of the act, omission, or failure complained of. See N.Y.C.P.L.R. § 214-a (“An action for
medical, dental or podiatric malpractice must be commenced within two years and six months of

the act, omission or failure complained of.”). In its motion, Good Samaritan correctly notes that
because Good Samaritan’s treatment of Plaintiff took place on July 11, 2020, the statute of
limitations for Plaintiff’s medical malpractice suit expired on January 11, 2023. Am. Compl. at 4.
Plaintiff’s amended complaint, wherein he first raised his medical malpractice claim against Good
Samaritan, was filed on July 10, 2023. See generally Am. Compl. Accordingly, Plaintiff’s
eleventh cause of action must be dismissed as time barred.
Because Plaintiff’s § 1983 claims against Good Samaritan fail to adequately allege state
action, and because Plaintiff’s remaining claim against Good Samaritan is time barred, Good
Samaritan’s motion for judgment on the pleadings is granted.
II. Plaintiff’s Motion for Leave to Amend
Plaintiff seeks leave to amend his complaint “to amend the caption and substitute the
unknown defendants.” Memorandum of Law in Support of Plaintiff’s Motion for Leave to Amend
(“Amendment MOL”), ECF 34 at 3. The County filed a memorandum of law in opposition,

“oppos[ing] only that branch of the motion that seeks to amend the complaint to name the “John
Doe” and “Jane Doe” defendants […] pursuant to Fed. R. Civ. P. 15.” County of Suffolk’s
Memorandum of Law in Opposition (“Suffolk Opp.”), ECF 41 at 1.
The County argues that leave to amend would be futile, as Plaintiff’s claims against the
substituted parties would be time-barred under the 3-year statute of limitations for Section 1983
claims. Id. at 2. Plaintiff argues that the amendment would not be futile pursuant to N.Y. C.P.L.R.
§ 1024, which allows plaintiffs to substitute a real name for a John Doe after the statute of
limitations has expired so long as plaintiffs “exercise due diligence, prior to the running of the
statute of limitations, to identify the defendant by name” and where their original complaints
“describe the John Doe party in such form as will fairly apprise the party that [he] is the intended

defendant.” Hogan v. Fischer, 738 F.3d 509, 519 (2d Cir. 2013).
The County contends that Plaintiff has not adequately alleged due diligence, contending
that Plaintiff “does not claim to have taken any identifiable steps to obtain the names prior to the
County voluntarily providing them.” Suffolk Opp. at 2. The County’s characterization of
Plaintiff’s allegations is not entirely fair: in addition to conclusory allegations that Plaintiff
“diligently sought to identify the John Doe defendants,” Plaintiff makes a sole specific factual
allegation that “upon information and belief” he “wrote multiple letters but his attempts were
futile.” Amendment MOL at 15-16. Nevertheless, this sole factual allegation, made “upon
information and belief,” without specifying to whom the letters were sent, on what dates, or what
the request made in the letters was, is insufficient to demonstrate that Plaintiff acted with due
diligence. Courts in this Circuit require more specific factual allegations and evidence from
plaintiffs before finding the due diligence prong of N.Y. C.P.L.R. § 1024 has been met. See Joseph
v. Bute, 16-CV-2004 (PKC)(LB), 2019 WL 181302, at *5 (E.D.N.Y. Jan. 9, 2019) (collecting

cases) (“Indeed, Courts have found due diligence where plaintiffs, prior to filing their complaints
in federal court, submitted discovery requests to the Attorney General’s Office; made multiple
inquiries to the relevant government department; or ‘contacted an official to provide information
about [the d]efendant’s full identity.’”).
Because Plaintiff fails to adequately allege that he acted with due diligence in seeking to
identify the John Doe and Jane Doe defendants prior to the expiry of the statute of limitations,
Plaintiff’s motion for leave to amend is denied without prejudice. Though Plaintiff’s instant
motion for leave to amend is denied, Plaintiff is permitted to file a new motion for leave to amend
with more specific factual allegations and evidentiary support.
CONCLUSION

For the reasons set forth above, Good Samaritan’s motion for judgment on the pleadings is
granted and Plaintiff’s motion for leave to amend is denied without prejudice.

SO ORDERED.
____/s/_________________________
ORELIA E. MERCHANT
United States District Judge

Dated: Brooklyn, New York
August 16, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659204. Public record. Not legal advice.