The opinion of the court was delivered by: Wigenton, District Judge.
Before the Court is Defendant Lori Hanton's ("Defendant" or "Hanton") second Motion to Dismiss Plaintiff's Second Amended Complaint ("SAC") pursuant to FED. R. CIV. P. 12(b)(1), (b)(6) and (c) (the "Motion"). The Motion seeks to dismiss Plaintiff's Bivens*fn1 claims and Co-defendants' cross claims for contribution and indemnification against Defendant. This Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391(b). The Motion is decided without oral argument pursuant to FED. R. CIV. P. 78.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background of this case is extensively discussed in this Court's November 10, 2009 opinion denying Defendant Hanton's first Motion to Dismiss the SAC and need not be restated here. See Young v. Speziale, et al., No. 07-3129 (D.N.J. Nov. 10, 2009). In that opinion, this Court held that Plaintiff had "adequately alleged that Defendant was deliberately indifferent to his medical needs" and thus had sufficiently pled a § 1983 violation. Id. at 13. This Court further held that Defendant was not entitled to qualified immunity. Id. at 14.
Subsequently, Defendant contemporaneously filed both an answer to the SAC and the instant Motion. Defendant's Motion seeks to dismiss Plaintiff's Bivens claims for violations of his constitutional rights under the Fifth, Eighth and Fourteenth Amendments and Co-defendants' cross claims for contribution and indemnification under the Joint Tortfeasors Contribution Law, N.J. STAT. ANN. § 2A:53A-1, et seq. Defendant asserts that 42 U.S.C. § 233(a) and 28 U.S.C. § 2679(b)(1) entitle her to immunity from suit, and thus both Plaintiff's Bivens claims and Co-defendants' cross claims must be dismissed.
MOTION TO DISMISS STANDARD
Because the instant Motion was filed concurrently with Defendant's Answer, the Motion will be considered under Rule 12(c). In construing the standard of review for a Rule 12(c) motion, our courts have noted that "a motion to dismiss for failure to state a claim under Rule 12(c) is identical to one filed under Rule 12(b)(6), except Rule 12(c) allows for the motion to be filed after the filing of an answer, while Rule 12(b)(6) allows for the motion to be made in lieu of an answer." Wellness Publ'g v. Barefoot, No. 02-3773, 2008 WL 108889, at *6 (D.N.J. Jan. 9, 2008); see also FED. R. CIV. P. 12(h)(2)(B). Thus, in either instance, a court is to "analyze the motion[s] under the same standard." Reinbold v. U.S. Post Office, 250 F. App'x 465, 466 n.1 (3d Cir. 2007) (citing Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991)). We will therefore evaluate Defendant's Motion using the standard of review established under Rule 12(b)(6).
In considering a Motion to Dismiss under Rule 12(b)(6), the Court must "'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holding Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). As the Supreme Court has explained:
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." 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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"
Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 556--57, 570) (internal citations omitted). Determining whether the allegations in a complaint are "plausible" is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. If the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint" should be dismissed for failing to "show that the pleader is entitled to relief" as required by Rule 8(a)(2). Id.
i. Plaintiff's Bivens Claims.
In her second attempt to dismiss Plaintiff's complaint, Defendant Hanton argues that 42 U.S.C. § 233(a) entitles her to immunity from all claims for injuries resulting from actions performed within the scope of her employment as a member of the United States Public Health Service (USPHS). (Def.'s Br. 3.) This Court agrees. Section 233(a) provides:
The remedy against the United States provided by [the Federal Tort Claims Act] . . . for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same ...