The opinion of the court was delivered by: Pisano, District Judge.
Plaintiff Karen Wright brings this civil rights action against the Middlesex County Prosecutor's Office ("MCPO") and several of its investigators*fn1 (the "Investigators", together with MCPO, "Defendants") alleging that Defendants used excessive force in arresting plaintiff while executing a municipal bench warrant. Presently before the Court is Defendants' motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), on the grounds that Defendants are immune from suit under the Eleventh Amendment.*fn2 The Court decides the matter without oral argument pursuant ot Federal Rule of Civil Procedure 78. For the reasons below, Defendants' motion is granted.
On or about February 29, 2008, the Investigators went to Plaintiff's apartment to serve a bench warrant on Plaintiff's daughter, Shafeefah Robinson. Cushing Cert., Ex. B. Ms. Robinson was not at home at the time and Plaintiff did not know her daughters whereabouts. The investigators advised Plaintiff that they would return at a later time. Id.
On or about March 12, 2008, the Investigators returned to Plaintiff's apartment to again execute the warrant as to Plaintiff's daughter. Def. Rule 56.1 Statement ("Def. Statement") ¶ 4. At the time the Investigators arrived, Plaintiff was dressed in boxer shorts and a tank top, and she had bare feet. Id. ¶ 5. She asked the officers to leave so she could put on some clothes, but they ignored her request. Id. ¶¶ 6-7. Consequently, Plaintiff decided grab some clothes and make her way to the bathroom to get dressed, at which point she alleges she was grabbed and "slammed" to the floor, injuring her leg. Id. ¶¶ 9-10. Emergency medical services was called and Plaintiff was taken to Robert Wood Johnson Hospital for evaluation. Id. ¶ 15. The complaint alleges that Plaintiff suffered a broken leg.
In connection with the incident, Plaintiff was charged with third degree aggravated assault on a police officer and third degree resisting arrest. Ultimately, Plaintiff entered a guilty plea to a disorderly persons offense of resisting arrest. Id. ¶ 17.
Plaintiff filed the instant action on March 12, 2010 against MCPO and the Investigators. Plaintiff brings a claim under 42 U.S.C. § 1983 alleging Defendants used excessive force in effecting her arrest, thereby violating her rights under the Fourth Amendment. Although the Plaintiff's complaint is not entirely clear, it can also be read as attempting to assert state law claims for assault and battery and defamation. Plaintiff seeks to hold the MCPO vicariously liable for the actions of the Investigators. The claims against the Investigators are brought against them in their official capacity.
Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal of claims based on a lack of subject matter jurisdiction. Challenges to jurisdiction under 12(b)(1) may be either facial or factual. Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006); see also Med. Soc'y of New Jersey v. Herr, 191 F. Supp. 2d 574, 578 (D.N.J. 2002) ("A facial attack on jurisdiction is directed to the sufficiency of the pleading as a basis for subject matter jurisdiction," while a factual attack "calls into question the essential facts underlying a claim of subject matter jurisdiction."). Because a facial attack challenges the sufficiency of the pleadings, the trial court "must consider the allegations of the complaint as true." Id. In a factual attack, on the other hand, plaintiff's allegations are afforded no presumption of truthfulness, id., and the trial court may review evidence outside the pleadings, Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). The plaintiff bears the burden of establishing that jurisdiction exists. Petruska, 462 F.3d at 302 n.3.
B. Eleventh Amendment Immunity
Defendants have moved to dismiss Plaintiff's complaint arguing that the Eleventh Amendment to the United States Constitution bars Plaintiff's claims against the MCPO and the Investigators. The Eleventh Amendment is a jurisdictional bar that deprives federal courts of subject matter jurisdiction. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996). It 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." As developed, the Eleventh Amendment affords states (and state officials in appropriate circumstances) immunity from suits brought by citizens in federal court. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); MCI Telecom. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503--504 (3d Cir. 2001). There are only three "narrowly circumscribed" exceptions to Eleventh Amendment immunity: (1) abrogation by Act of Congress, (2) waiver by state consent to suit; and (3) suits against individual state officials for prospective relief to remedy an ongoing violation of federal law. M.A. ex rel. E.S. v. State-Operated School Dist. of City of Newark, 344 F.3d 335, 345 (3d. Cir. 2003) (citing MCI Telecommunication Corp. v. Bell Atlantic--Pennsylvania,271 F.3d 491, 503 (3d Cir. 2001)). There is no argument that any of these exceptions apply here.*fn3
It has been "long held that counties, municipalities, and political subdivisions of a state are not protected by the Eleventh Amendment," Febres v. Camden Bd. of Educ., 445 F.3d 227, 229 (3d Cir. 2006). However, sovereign immunity does extend to entities that qualify as an "arm of the state." See Regents of the Univ. of California v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); see also Haybarger v. Lawrence County Adult Probation and Parole, 551 F.3d 193, 198 (3d Cir. 2008) ("[A] suit may be barred by the Eleventh Amendment even though a State is not named a party to the action, so long as the State is deemed to be the real party in interest.") (citing Regents, 519 U.S. at 427). Defendants argue that MCPO is an arm of the state and, as such, Plaintiff's suit is prohibited by the Eleventh Amendment.
The Third Circuit set forth the criteria for determining whether an entity is an "arm of a state" for purposes of the Eleventh Amendment (or, said another way, whether a state is the real party in interest) in Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, ...