The opinion of the court was delivered by: Seibel, J.
Before the Court are (1) the Motion to Dismiss of Defendants County of Orange ("County"), the Orange County Department of Probation ("Probation Department"), Victoria Casey, Ann E. Putnam, and Vincent Morgiewicz (collectively, the "County Defendants"),*fn1 filed on January 5, 2009 (Doc. 7); and (2) the Motion to Dismiss of Defendant Kroll Laboratory Specialists, Inc. ("Kroll"), filed on January 30, 2009 (Doc. 15).
The following facts alleged in the First Amended Complaint are accepted as true for the purposes of the instant motions.
On November 26, 2008, Plaintiff Eric Landon brought an action pursuant to 42 U.S.C. § 1983 ("Section 1983") on behalf of himself and all others similarly situated, against Defendants County, Probation Department, Casey, Putnam, Morgiewicz, and Kroll. (Am. Compl. ¶¶ 5-9, 11.) At all times relevant to this action, Casey was the Director of the Probation Department; Putnam was a Probation Officer employed by the Probation Department; and Morgiewicz was a Probation Supervisor employed by the Probation Department. (Id. ¶¶ 7-9.) Kroll is a corporation which at all times relevant to this action held a New York State Department of Health Laboratory Permit for comprehensive Forensic Toxicology and, pursuant to contracts with the County, performed substance abuse testing services, which entailed analyzing oral fluid samples provided by probationers and reporting the presence or absence of illegal substances. (Id. ¶¶ 11, 14.)
On January 28, 2002, Plaintiff Eric Landon was convicted in the County Court, County of Orange, New York, of forgery in the second degree, a class D felony under the New York State Penal Law Section 170.10. (Id. ¶ 12.) He was sentenced to a five-year term of probation. (Id.) One of the conditions of his probation was that he submit to random and periodic drug testing upon the direction of his probation officer. (Id. ¶ 13.) On December 17, 2007, Putnam ordered Plaintiff to submit an oral fluid sample to determine whether he was in compliance with his probation. (Id. ¶ 15.) Plaintiff submitted an oral sample, which was taken using a device manufactured by Orasure Technologies, Inc. ("Orasure") and purchased by the Probation Department and/or the County from Kroll. (Id. ¶ 16.) Putnam did not require, and Plaintiff did not give, a simultaneous urine sample. (Id. ¶ 17.) On the same day the oral sample was taken, December 17, 2007, Plaintiff independently obtained a blood test to protect himself from a possible false positive result from the oral sample. This blood test came back negative for any illicit substances. (Id. ¶ 19.)
Plaintiff's oral sample was sent by the Probation Department to Kroll to determine whether or not it contained illicit substances. (Id. ¶ 18.) Upon an initial screening, Kroll determined that the amount of THC*fn2 in the oral sample exceeded Kroll's screen cutoff level of 1.0 ng/ml. (Id. ¶ 21.) On December 20, 2007, after having only screen-tested the oral sample, and without confirming it through any other testing (id. ¶ 24), Kroll informed the Probation Department that Plaintiff's oral sample tested positive for THC (id. ¶ 28). Plaintiff contends that this conduct contravened the New York State Department of Health Laboratory Standards, which governs holders of Forensic Testing Laboratory Permits and requires the oral sample to be subjected to further confirmatory testing before being reported as positive. (Id. ¶ 25.)
At the time the oral sample was screened by Kroll, Orasure's recommended screen test cutoff level for THC was 3.0 ng/ml, and the proposed screen test cutoff level of the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration ("SAMHSA") was 4.0 ng/ml. (Id. ¶¶ 22-23.) In 2004, SAMHSA proposed revisions to its mandatory guidelines for federal workplace drug testing, which stated that a urine specimen must be collected at the same time an oral fluid sample is taken. (Id. ¶ 26.) Plaintiff alleges these proposed revisions were the industry-wide standard for forensic drug testing and that Kroll had actual and/or constructive notice of them at the time he was tested in December 2007. (Id. ¶ 27.)
Plaintiff asserts that Defendant Kroll's written report to the Probation Department was issued "unlawfully, negligently, and as part of a policy of deliberate indifference to [P]laintiff's Fourteenth Amendment right to due process of law" for the following reasons: (1) Kroll's screen test cutoff level of 1 ng/ml was lower than Orasure's recommended level of 3 ng/ml; (2) Kroll's cutoff level was lower than SAMHSA's proposed level of 4 ng/ml; (3) no simultaneous urine sample was taken; (4)Kroll's testing did not comply with relevant New York State standards requiring confirmation testing before reporting a positive result;and (5) Kroll had knowledge of the potential for false positives when using an oral sample alone, and failed to disclose this information to the Probation Department. (Id. ¶ 29.) Plaintiff alleges that Kroll's conduct was performed systematically and in accordance with its ongoing procedures, policies, and practices. (Id. ¶ 30.) Further, Plaintiff contends that Kroll's actions were carried out jointly and in concert with Defendants Casey, County of Orange, and the Probation Department. (Id. ¶ 49.)
After receiving Kroll's written report regarding the oral sample, the Probation Department filed a violation of probation ("VOP") petition with the Orange County Court. The petition, which was signed by Putnam and Morgiewicz, sought to revoke Plaintiff's probationary sentence and have him re-sentenced to a period of incarceration. (Id. ¶ 31.) The petition charged Plaintiff with violating two conditions of his probationary sentence by using marijuana and by falsely reporting to his officer that he had not used drugs. (Id. ¶ 32.)
On January 2, 2008, one day before Plaintiff's probationary period was to expire, he was arraigned before the Orange County Court on the VOP petition. (Id. ¶ 34.) At this time, he provided the court and the Probation Department with the results of his independently obtained blood test. He also submitted to a urine test on this date, which came back negative for THC. (Id. ¶¶ 34-35.) Despite this evidence, the Probation Department chose to continue the VOP proceedings. (Id. ¶ 36.) Plaintiff subsequently appeared before the Orange County Court four more times in 2008: on January 22, February 15, March 12, and March 20. (Id. ¶¶ 37-40.) On March 20, 2008, despite the County Defendants' insistence that the VOP proceedings continue, the Orange Country District Attorney elected not to go forward with the revocation hearing and the Probation Department withdrew the VOP petition. (Id. ¶ 40.) Thus, Plaintiff alleges that the proceedings terminated in his favor on the merits. (Id.)
Plaintiff contends that Putnam and Morgiewicz lacked probable cause to file the VOP petition and, therefore, owed Plaintiff a duty not to file it. (Id. ¶ 33.) Plaintiff further alleges that the conduct of Putnam, Morgiewicz, and Casey was "arbitrary, capricious, and irrational and was carried out with malice and as part of a policy or practice of deliberate indifference to [his] welfare, property and liberty interests and Fourteenth Amendment right to due process of law." (Id. ¶ 45.) According to Plaintiff, the acts of Putnam and Morgiewicz were the result of inadequate training by Casey, the County, and the Probation Department. (Id. ¶ 46.) Finally, Plaintiff asserts that, as a result of Defendants' conduct, he suffered a "loss of freedom" because he had to serve an extended probationary term, as well as emotional and psychological harm, humiliation, and monetary loss.*fn3 (Id. ¶ 42.)
The County Defendants filed a Motion to Dismiss on January 5, 2009, arguing that Plaintiff failed to allege the elements of a malicious prosecution claim pursuant to Section 1983; the County Defendants are entitled to immunity; and Plaintiff does not sufficiently allege that the County failed to train or was acting pursuant to a custom, policy or practice. (Doc. 7.) Defendant Kroll filed a Motion to Dismiss on January 30, 2009, on the basis that Kroll is not a state actor and Plaintiff failed to allege a deprivation of his constitutional rights. (Doc. 15.) Plaintiff filed an Opposition to Defendants' Motions to Dismiss on January 16, 2009. (Doc. 10.)
"To survive a motion to dismiss, a 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations and quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era,... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Ashcroft, 129 S.Ct. at 1950.
In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. at 1950. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere ...