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February 21, 1996


The opinion of the court was delivered by: MCLAUGHLIN


 Sharlene Coxson has filed this action under 42 U.S.C. § 1983 *fn1" against Defendants the Commonwealth of Pennsylvania (the "Commonwealth"), the Commonwealth Department of Public Welfare ("DPW"), and the Polk Center ("Polk"), alleging violations of her rights under the Fifth and Fourteenth Amendments to the United States Constitution. Defendants have moved to dismiss the case. Because this Court concludes that Plaintiff's claims are barred by the Eleventh Amendment, we will grant Defendants' motion and dismiss the case with prejudice.


 The gravamen of Plaintiff's complaint is that, as a result of state felony criminal charges filed against her, Plaintiff was suspended from her employment at Polk without pay and without due process of law. Plaintiff alleges that her April 7, 1993 suspension was carried out pursuant to Section III of the Governor's Code of Conduct for Commonwealth employees and Section 7174 of DPW's administrative manual regarding discipline of Commonwealth employees. On or about May 12, 1993, Plaintiff was terminated from her position with the Polk Center.

 Plaintiff alleges that, during the interim between her suspension and termination, Defendants failed to properly investigate the charges against her. She claims that, had a proper investigation been performed, Defendants would have known that she was not guilty of any of the crimes charged. In April of 1994, the charges against Plaintiff were dropped. In May of 1994, Plaintiff was reinstated to her position without any explanation and without reimbursement for her lost wages and/or other employment benefits.

 Defendants move for dismissal of this action on several bases. First, Defendants argue that this Court lacks subject matter jurisdiction because Plaintiff's claims are barred by the Eleventh Amendment. Second, Defendants claim that the complaint fails to state a cognizable claim inasmuch as the Commonwealth Defendants are not persons subject to liability under § 1983. Third, Defendants argue that Plaintiff's Fifth Amendment claims cannot provide a basis for relief because that amendment applies only to actions by the federal government. To the extent that any state law claims are presented, Defendants argue that such claims are barred by Eleventh Amendment immunity and sovereign immunity. Finally, Defendants argue that Plaintiff's claims are barred by the applicable statute of limitations and that, in any event, there is no constitutional right to an adequate investigation. Because we find the first argument dispositive, we need not address these other bases for dismissal.


 Dismissal for lack of subject matter jurisdiction is appropriate only if the right claimed is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1280-81 (3d Cir. 1993) (quoting Kulick v. Pocono Downs Racing Ass'n, Inc., 816 F.2d 895 (3rd Cir. 1987)). "The threshold to withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(1) is thus lower than that required to withstand a Rule 12(b)(6) motion." Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir. 1989). See also Bonnett Enterprises, Inc. v. United States, 889 F. Supp. 208, 209-10 (W.D. Pa. 1995). The plaintiff bears the burden of persuasion on a motion under Rule 12(b)(1). Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991).


 The Eleventh Amendment to the United States Constitution provides that:

The 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.

 It is well established that the Eleventh Amendment bars civil rights actions in federal court where the suit is brought by a private party against a state or agencies or departments created by the state which have no existence apart from the state. Alabama v. Pugh, 438 U.S. 781, 782, 57 L. Ed. 2d 1114, 98 S. Ct. 3057 (1978); Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981), cert. denied, 469 U.S. 886, ...

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