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February 6, 1985

ALFRED M. BARLETTA and CONCETTA M. BARLETTA, his wife, Plaintiffs,

The opinion of the court was delivered by: COHEN

 This tort and civil rights action is presently before the Court on a motion to dismiss made on behalf of one of the third party defendants, Detective John Sheeran, a member of the New Jersey State Police Department. Sheeran's motion is based entirely upon an assertion of Eleventh Amendment immunity. *fn1"

 This is another installment in a series of tort cases which has evolved on a busy casino floor, amid the fervor generated by one of the "comparatively innocuous" forms of gambling. See Champion v. Ames, 188 U.S. 321, 356, 23 S. Ct. 321, 47 L. Ed. 492 (1903). On October 24, 1982, at approximately 3:00 a.m., an argument arose between the primary plaintiff, Concetta M. Barletta, *fn2" and one of the defendants, Veronica Bartch, over the use of a slot machine at the Golden Nugget Casino (the Casino) in Atlantic City, New Jersey. For some yet unexplained reason, tempers flared and Mrs. Barletta, who may simply have been the prevailing pugilist in the resulting contest, was detained by the Casino's security guards. She was thereafter placed under arrest by defendant, Joseph Fair, an Atlantic City police officer, for simple assault. Apparently, neither Bartch nor Barletta was seriously injured during their hostile encounter. However, Mrs. Barletta claims that she sustained severe injuries and damages at the hands of the police.

 Without admitting the occurrence of a false arrest, the Casino alleges that plaintiff's detention and subsequent incarceration were actions taken at the behest of third party defendant, Detective Sheeran, a state police officer assigned to the Division of Gaming Enforcement (DGE). Pursuant to an agreement among the DGE, the New Jersey State Police, the Atlantic City Police Department and the Atlantic City Prosecutor's Office, all state criminal violations which occur within the confines of a casino are to be investigated by DGE personnel. The Atlantic City Police Department is obligated, by the terms of the same agreement, to assist DGE personnel in the processing of any person arrested in a casino. Thus, the agreement seems to support, at least at first blush, the contention that Detective Sheeran was in charge of plaintiff's arrest.

 In January of 1983, the Barlettas sued both Mrs. Bartch and the Casino for negligence, false arrest and abuse of process. The Barlettas' amended complaint named the City of Atlantic City, its police department and certain individual members of the police force as additional defendants. These additional defendants filed a third party complaint, seeking contribution, against the State of New Jersey, Attorney General Kimmelman, DGE Director Thomas O'Brien, John Doe, an unknown state investigator and, ultimately, Detective Sheeran.

 This case has been before the Court previously on five principal occasions. On September 16, 1983, we granted the Casino's motion to dismiss based on plaintiff's failure to allege subject matter jurisdiction. After this pleading deficiency was corrected, the Casino moved for summary judgment. On February 15, 1984, 580 F. Supp. 614, we granted this motion in regard to plaintiff's negligence and abuse of process claims but denied it regarding their false arrest claim. On April 27, 1984, these decisions were affirmed upon reconsideration. After the plaintiff had added a civil rights claim, under 42 U.S.C. § 1983, Kimmelman, O'Brien and the State of New Jersey moved to dismiss the third party complaint against them on the basis that it was barred by the Eleventh Amendment. On May 15, 1984, we granted their motion and also granted leave for the Casino to add Detective Sheeran as a third party defendant. Finally, on July 9, 1984, we denied motions for summary judgment made on behalf of the Barlettas and the defendants, City of Atlantic City and the Atlantic City Police Department. Thus, the stage was set for the present motion in which Detective Sheeran claims that he, too, is entitled to the sovereign immunity which underlies the Eleventh Amendment.


 Although "the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court," Edelman v. Jordan, 415 U.S. 651, 678, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974), it really does not bear on the question of personal or subject matter jurisdiction. See Petrol Shipping Corp. v. Kingdom of Greece, Ministry of Com., 360 F.2d 103, 107 (2d Cir. 1966); Wright & Miller, Federal Practice and Procedure: Civil § 1351, at 561. Instead, the Amendment presents a sui generis challenge to the jurisdiction of federal courts; suits against states are simply not within the realm of Article III. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, , 52 U.S.L.W. 4155, 4157, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). Accordingly, we are not guided on the present motion by either Fed. R. Civ. P. 12(b)(1) or 12(b)(2), which place initial burdens of proof on the party asserting jurisdiction.

  It is clear that a state official must prove his or her entitlement to official or qualified immunity, Skehan v. Bd. of Trustees of Bloomsburg State College, 538 F.2d 53, 62 (3d Cir.), cert. denied, 429 U.S. 979, 50 L. Ed. 2d 588, 97 S. Ct. 490 (1976), but it is uncertain whether the same is true when the official asserts the protection of the sovereign. See Knox v. Regents of Univ. of Wisconsin, 385 F. Supp. 886, 887 (E.D. Wis. 1975) (holding that a plaintiff bears the burden of proving a waiver of sovereign immunity). Fortunately, we may resolve the present controversy without reference to initial burdens of proof.

 On this preliminary motion, we are required to view the facts under the light most favorable to the nonmoving party. Scheuer v. Rhodes, 416 U.S. 232, 238, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). So construed, it appears that an award of damages against Detective Sheeran would not expend itself on New Jersey's public treasury or interfere with the state's public administration. Accordingly, we shall deny his present motion with prejudice. The discussion which follows explains why these factors are dispositive.

 Eleventh Amendment jurisprudence has been aptly and eloquently described by Judge Sloviter, speaking for the Third Circuit, as a "step through the looking glass [which] leads to a wonderland of judicially created and perpetuated fiction and paradox." Spicer v. Hilton, 618 F.2d 232, 235 (3d Cir. 1980). The esoteric nature of Eleventh Amendment cases is due in part to tensions which inhere in our federalism, principally the interplay between the supremacy of federal law and the sovereignty of states, and in part to the circumstances surrounding its enactment.

 The Amendment became effective in 1798 in reaction to Chisholm v. Georgia, 2 U.S. 419, 2 Dall. 419, 1 L. Ed. 440 (1793), a case in which the Supreme Court assumed original jurisdiction over a suit brought by a citizen of South Carolina against the State of Georgia. Although the Amendment's language merely overruled the result in that particular case, it has never been literally construed. As Justice Powell has recently emphasized, it soon became apparent that the Amendment's "greater significance lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, , 52 U.S.L.W. 4155, 4157, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984) (emphasis added.) Simply put, the Amendment did not establish the sovereign immunity of states; it made clear that the doctrine had survived the Constitution and its "new Federal Government." See Edelman, 415 U.S. at 660. Some well-established jurisdictional restrictions, which purportedly stem from the Amendment, actually have their origins in the contemplation of the Constitution's draftsmen. *fn3" For example, the Amendment is said to bar suits in admiralty, yet it only speaks of "law or equity." See Ex Parte Madrazzo, 32 U.S. (7 Peters) 627, 8 L. Ed. 808 (1833). When the Court considered whether a citizen could sue his or her own state, it looked beyond the limited and unambiguous language of the Amendment and prohibited such a suit because it "was not contemplated by the Constitution when establishing the judicial power of the United States." Hans v. Louisiana, 134 U.S. 1, 15, 33 L. Ed. 842, 10 S. Ct. 504 (1890). *fn4" In general, the Court has attempted to adhere to "the postulate that the States of the Union still possessing attributes of sovereignty, shall be immune from suits, without their consent, save when there has been 'a surrender of this immunity in the plan of the convention. ' Monaco v. Miss., 292 U.S. 313, 322-23, 54 S. Ct. 745, 78 L. Ed. 1282 (1934) (quoting the Federalist, No. 81). In short, from its inception the Eleventh Amendment has provided for a sovereign immunity which is, in some respects, considerably broader than a literal reading of the Amendment would suggest. *fn5"

 The impact of the Fourteenth Amendment on state sovereign immunity has been the subject of a line of cases from which we can derive a few, clear principles. Undoubtedly, Congress has plenary power to abrogate states' immunity in order to enforce the substantive guarantees of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976). However, Congressional intent in this regard must be very clear and in Quern v. Jordan, 440 U.S. 332, 340-42, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979), the Court found that Congress did not clearly intend to abrogate states' sovereign immunity when it enacted 42 U.S.C. § 1983. Additionally, New Jersey has not waived its Eleventh Amendment immunity. Thus, we are left with the task of reconciling the Fourteenth Amendment guarantees, which § 1983 was designed to make available, with New Jersey's sovereign immunity in an effort to reach the "appropriate division of responsibility between the ...

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