The opinion of the court was delivered by: Kugler, United States District Judge:
This case arises from Plaintiff's alleged assault by a federal officer. Plaintiff asserts claims for violation of his due process and Fourth Amendment rights as well as tort claims pursuant to the Federal Tort Claims Act. Defendant Jason Player moves to dismiss all claims against him. For the reasons discussed below, the Court dismisses all claims against Defendant Player except Plaintiff's Fourth Amendment claim against Defendant Player in his individual capacity.
On July 21, 2009, Plaintiff drove to the Clarion Hotel in Cherry Hill, New Jersey with a "companion." (Am. Compl. ¶ 18). When Plaintiff got into his vehicle to leave the hotel, he was approached by unidentified "individuals wearing street clothes and brandishing handguns." (Id. ¶ 19). Plaintiff drove away from the "assailants." (Id. ¶ 20). Officer James Glatz, a police officer with the Cherry Hill police department, immediately stopped Plaintiff. Officer Glatz was driving an unmarked police car. Officer Glatz ordered Plaintiff to get out of his vehicle and lay on the ground. Plaintiff complied with Officer Glatz's instructions. Officer Glatz handcuffed Plaintiff while he was lying on his stomach with his hands behind his back. Plaintiff did not resist.
Minutes after Officer Glatz handcuffed Plaintiff, Drug Enforcement Agency ("DEA") Officer Jason Player arrived at the scene in an unmarked vehicle. Plaintiff alleges that Officer Player exited his vehicle and charged toward Plaintiff yelling: "You're going to run from me Mother Fucker." (Am. Compl. ¶ 26). According to Plaintiff, Officer Player repeatedly kicked Plaintiff in the face while Plaintiff was lying on his stomach with his hands in cuffs behind his back. The alleged beating rendered Plaintiff unconscious.
Eventually, paramedics arrived and transported Plaintiff to Kennedy Hospital in Cherry Hill, New Jersey, where doctors diagnosed him with severe facial fractures. Because of the severity of Plaintiff's injuries, doctors transferred him to Cooper Hospital's Trauma Unit. Plaintiff spent seven days in Cooper Hospital. During that time, doctors operated on Plaintiff to repair his facial fractures by inserting permanent corrective hardware. Plaintiff claims that he has not recovered from the beating, and that he needs additional surgeries to repair his face.
Plaintiff filed the Complaint pro se in August 2010.*fn2
(Doc. No. 1). He subsequently retained counsel and filed an
Amended Complaint in October 2010. The Amended Complaint names as
Defendants the City of Cherry Hill (the "City"), the Cherry Hill
Police Department (the "Department"), Officer Glatz, and Officer
Player.*fn3 (Doc. No. 8). Plaintiff sues Officer Glatz
and Officer Player in their individual and official capacities. The
Amended Complaint asserts the following claims: (1) "Fourth Amendment
-- Unlawful Search and Seizure, Excessive Force" (against all
Defendants); (2) "Fourteenth Amendment -- Substantive Due Process"
(against all Defendants); (3) "Fourteenth Amendment -- Procedural Due
Process" (against all Defendants);
(4) "Monell Claim" (against the City and the Department); (5)
"Assault and Battery" (against Officer Player and John Does I-III);
and (6) "Intentional Infliction of Severe Emotional Distress" (against
Officer Player and John Does I-III).
Officer Player answered the Amended Complaint (Doc. No. 25) and moved to dismiss all claims against him pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).*fn4
Regarding Plaintiff's common law tort claims, Officer Player submits a certification from the Chief of the Civil Division in the United States Attorney's Office for the District of New Jersey stating that Officer Player was acting within the scope of his employment. Officer Player argues that pursuant to 28 U.S.C. § 2679(d)(1) the certification has the affect of dismissing all common law tort claims against him and substituting the United States as the proper Defendant regarding Plaintiff's tort claims. According to counsel for the United States, the Court should dismiss Plaintiff's common law tort claims against the United States because Plaintiff failed to exhaust administrative remedies as required by the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. ("FTCA").
Officer Player also argues that to the extent that Plaintiff asserts claims against him under § 1983, those claims should be dismissed because he was a federal agent acting under federal law and § 1983 applies only to officials acting under "color or state law." Officer Player further argues that even if the Court were to construe Plaintiff's § 1983 claims as a Bivens claim,*fn5
Plaintiff's due-process claims should be dismissed for failure to state a claim. Officer Player argues that Plaintiff's claims for constitutional violations against Officer Player in his official capacity should be dismissed because the United States did not waive sovereign immunity for constitutional claims under Bivens. Plaintiff opposed Officer Player's motion to dismiss, and the motion is now ripe for review.
Rule 12(b)(1) permits a court to dismiss a case for lack of subject-matter jurisdiction. Motions under Rule 12(b)(1) may be "facial" or "factual" challenges to the court's jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A factual challenge "may occur at any stage of the proceedings, from the time the answer has been served until after the trial has been completed." Id. at 891-92. During a factual challenge, "no presumptive truthfulness attaches to [the] plaintiff's allegations" and the court may consider and weigh evidence outside of the pleadings. Id. at 891. The plaintiff bears "the burden of proof that jurisdiction . . . exist[s]." Id. When the moving party supports its ...