The opinion of the court was delivered by: Wolfson, United States District Judge
Presently before the Court is a Motion brought by Defendants County of Ocean ("Ocean"); Ocean County Prosecutor's Office ("OCPO"); and Investigator Petracca ("Petracca"), to dismiss all claims brought by Plaintiff Austin Landi ("Plaintiff"). Initially, Plaintiff alleges, pursuant to 42 U.S.C. § 1983, that Defendants Ocean, OCPO, Petracca, Patrolman Daniel Fitzgerald ("Fitzgerald"), Borough of Seaside Park, Seaside Park Police Department, and Seaside Park Chief of Police William Beining, and unnamed Seaside Park Police officers (collectively "Defendants") violated his First, Fourth, Fifth, and Fourteenth Amendment Rights when Petracca, Fitzgerald, and unnamed officers allegedly assaulted Plaintiff and subsequently harassed him on numerous occasions. In addition, Plaintiff asserts state law claims against Defendants, including (1) false arrest and imprisonment; (2) assault and battery; (3) malicious prosecution; (4) abuse of process; (5) negligence; (6) gross negligence; (7) civil conspiracy to commit tort; and (8) negligent hiring, training, and supervision. For the reasons that follow, the Court grants OCPO and Ocean's Motion to Dismiss. Further, the Court grants Petracca's Motion to Dismiss Plaintiff's 1983 claims asserted against him in his official capacity. Finally, the Court denies Petracca's assertion of qualified immunity.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 23, 2004, Plaintiff was walking along Farragut Avenue in the Borough of Seaside Park. Pl.'s Compl. ¶17. At the time, Plaintiff was a sixteen year old high school student, standing five foot six inches and weighing 135 pounds. Id. ¶18. As Plaintiff walked by 35 Farragut Avenue, he noticed that its residents were having a party. Id. ¶19. Plaintiff stopped to observe the party from in front of the driveway. Id. As Plaintiff observed, a man dressed in a floral print-type shirt approached Plaintiff and told him that he should go back into to the house. Id. ¶20. Plaintiff later identified this man in his Complaint as Investigator Petracca. Id. Plaintiff explained that he was never at the party. Id. At this point, Plaintiff alleges that Petracca started shoving him towards the house. Id. Caught off guard, Plaintiff pushed Petracca out of his way and attempted to leave. Id. Plaintiff alleges that another man in street clothes, later identified as Fitzgerald, ran toward Plaintiff and knocked him to the ground. Id. ¶21. Once Plaintiff was on the ground, other officers, both in uniform and street clothes, began to kick Plaintiff. Id. While on the ground, Plaintiff screamed that he had done nothing wrong. Id. ¶22. After repeated blows to Plaintiff's body and head, Fitzgerald informed Plaintiff he was a police officer and placed Plaintiff under arrest. Id. ¶21. Plaintiff was then placed in handcuffs while still on the ground. Officers lifted Plaintiff up by his arms, again causing Plaintiff pain. Id. ¶23. Plaintiff claims that Petracca did not inform Plaintiff that he was an undercover investigator until after Plaintiff was arrested. Plaintiff's arrest resulted in Fitzgerald filing an allegedly false police report and complaint against Plaintiff. Id. ¶25.
On several occasions following Plaintiff's arrest, members of the Seaside Park Police Department began to harass Plaintiff. Plaintiff alleges that police officers "stopp[ed] his motor vehicle in an unwarranted fashion; stopp[ed] him walking along the street in Seaside Park with friends; and fil[ed] false and unwarranted motor vehicle charges." Pl.'s Compl. ¶26. In an effort to put an end to the officers' harassment, Plaintiff's father contacted both the Chief of Police and the Municipal Prosecutor of Seaside Park. Id. Plaintiff alleges that as a result of the officers' assault, he suffered facial lacerations to his forehead and temple area, bruising to his right shoulder, injuries to his right arm and other parts of his body causing him pain and discomfort. Id. ¶24. Moreover, the calculated harassment on the part of the Seaside Park Police Department left Plaintiff humiliated and emotionally distressed. Id. ¶27.
Plaintiff initiated this action in United States District Court for the District of New Jersey on November 5, 2007. Fitzgerald filed an Answer to Plaintiff's Complaint on February 14, 2008. On March 17, 2008, Defendants Seaside Park, Seaside Park Police Department, and Beining filed an Answer. Defendants Ocean, Petracca, and OCPO filed this Motion to Dismiss Plaintiff's Complaint on June 17, 2008. On August 4, 2008, Fitzgerald's counsel, Guy P. Ryan, Esq., wrote a letter to this Court asking that Petracca not be dismissed as a Defendant in the case at bar as Petracca's alleged involvement is intertwined with that of Fitzgerald's. For the following reasons, OCPO and Ocean's Motion to Dismiss is granted. Further, Plaintiff's claims asserted against Petracca in his official capacity are dismissed as well. However, the Court finds that Petracca is not entitled to qualified immunity for alleged actions taken in his individual capacity.
A. Standard of Review 12(b)(1)
Moving Defendants' assertion of Eleventh Amendment sovereign immunity is a challenge to this Court's subject matter jurisdiction. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d Cir. 1996) ("Eleventh Amendment is a jurisdiction bar which deprives federal courts of subject matter jurisdiction."); Slinger v. N.J., No. 07-5561, 2008 WL 4126181, at *2 (D.N.J. Sept. 4, 2008). When jurisdiction is challenged pursuant to Rule 12 (b)(1), the plaintiff bears the burden of persuading the court that subject matter jurisdiction exists. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). In considering a motion pursuant to 12(b)(1), the district court must distinguish between factual and facial challenges to subject matter jurisdiction. Where a defendant contends that the plaintiff's complaint did not properly plead jurisdiction, the court need not consider extrinsic documents, and must "consider the allegations of the complaint and documents referenced therein and attached in the light most favorable to the plaintiff."Gould, 220 F.3d at 176; Mortensen v. First Federal Sav. & Loan Ass' n, 549 F.2d 884, 891 (3d Cir. 1977). Thus, "[w]here an attack on jurisdiction implicates the merits of plaintiff's federal cause of action, the district court's role in judging the facts may be more limited." Martinez v. U.S. Post Office, 875 F. Supp. 1067, 1090 (D.N.J. 1995) (citing Mortensen, 549 F.2d at 891).
Should factual issues arise regarding subject matter jurisdiction, the court may consider exhibits outside the pleadings. Mortensen, 549 F.2d at 891. Indeed, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. No presumption of truthfulness attaches to the allegations of the complaint insofar as they concern subject matter jurisdiction. Mortensen, 549 F.2d at 891. "When resolving a factual challenge, the court may consult materials outside the pleadings, and the burden of proving jurisdiction rests with the plaintiff." Medical Society of N.J. v. Herr, 191 F. Supp. 2d 574, 578 (D.N.J. 2002) (citing Gould Electronics, Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000). An assertion of the Eleventh Amendment is a facial attack, and as such, the Court will only consider Plaintiff's Complaint and any documents attached thereto.
B. Eleventh Amendment Sovereign Immunity
Defendants OCPO, Petracca, and Ocean contend that the Eleventh Immunity bars Plaintiff's claims. The Eleventh Amendment provides that "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." The amendment precludes federal jurisdiction over a state absent the state's consent to suit. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). The immunity from suit extends to agencies, departments and officials of the state when the state is the real, substantial party in interest. Id. at 101-02; Alabama v. Pugh, 438 U.S. 781, 781 (1978).
Sovereign immunity applies "'even though the state is not named a party to the action as long as the state is the real party in interest.'" Carter v. City of Philadelphia, 181 F.3d 339, 347 (3d Cir. 1999) (quoting Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989). Thus, a plaintiff may not evade or circumvent a defendant's assertion of sovereign immunity by purposefully omitting the state as a formal party to a complaint. Chisolm v. McManimon, 275 F.3d 315, 322-23 (3d Cir. 2001). In Fitchik, the Third Circuit held that the state is a party-in-interest when "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting or to compel it to act." 873 F.2d at 659. In other words, sovereign immunity is appropriate if the named defendant is an "arm of the state." Davis v. Lakewood, No. 03-1025, 2005 WL 1863665, at *3 (D.N.J. Aug. 4, 2005) (citing Chisolm, 275 F.3d at 323).
The Fitchick court also set forth a three factor test that this Court must use to determine whether each defendant is indeed an "arm of the state" entitled to sovereign immunity: "(1) whether payment of a judgment resulting from the suit would come from the state treasury, (2) the status of the entity under state law, and (3) the entity's degree of autonomy." Fitchik, 873 F.2d at 659; see also College Sav. Bank v. Florida Prepaid Post-secondary Educ. Expense Bd., 948 F. Supp. 400, 4009 (D.N.J. 1996) (precluding suit where "'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration.'") (internal citation omitted). In applying this three-factor test, the Third Circuit noted that not all three factors are to be given equal weight; rather, the first inquiry, whether any judgment would be paid from ...