The opinion of the court was delivered by: Slomsky, J.
Plaintiff commenced this action on March 27, 2009. In his Complaint, Plaintiff alleges Defendant Reilly, a corporal with the Pennsylvania State Police ("PSP"), shot him in the neck as he was falling down during a traffic stop on April 2, 2007. (Pl. Compl. ¶ 15.) Plaintiff is seeking damages from Reilly, both in his individual and official capacities, and from the PSP. In Count I of the Complaint, Plaintiff alleges Defendants deprived him of rights secured under the Fourth and Fourteenth Amendments to the United States Constitution, which he asserts under 42 U.S.C. § 1983. In Counts II--IV of the Complaint, Plaintiff alleges that he suffered injury as a result of Defendants' violations of Pennsylvania tort law. Specifically, Count II alleges intentional infliction of emotional distress, Count III alleges negligent infliction of emotional distress, and Count IV alleges assault and battery.
On April 30, 2009, Defendants filed a Motion to Dismiss all counts of the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1 In their Motion to Dismiss, Defendants argue that Plaintiff's § 1983 claims against the PSP and Defendant Reilly acting in his official capacity are barred by the Eleventh Amendment. Mem. of Law in Sup. of Def. Mot. to Dismiss at 4--6. Defendants also argue that Plaintiff's state law tort claims are barred under the doctrine of sovereign immunity. (Mem. of Law in Sup. Def. Mot. to Dismiss at 7--16.) Defendants have not moved to dismiss Plaintiff's § 1983 against Defendant Reilly acting in his individual capacity.*fn2
In response to Defendants' Motion to Dismiss, Plaintiff agreed to withdraw his § 1983 claims against the PSP and Reilly, acting in his official capacity (Count I). (Resp. to Def. Mot. to Dismiss.) Plaintiff contends, however, that sovereign immunity does not bar his state law tort claims against the PSP and Reilly. (Mem. in Opp. to Def. Mot. to Dismiss, at 4--5.) Presently before the Court is Defendants' Motion to Dismiss Plaintiff's state law tort claims on the ground that they are barred under the doctrine of sovereign immunity. This motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(6).
In the Complaint, Plaintiff alleges that he was pulled over by Defendant Reilly on April 2, 2007. (Pl. Compl. ¶ 7.) Plaintiff alleges that when he was pulled over, Reilly instructed Plaintiff to place his hands on top of his head so that Reilly could secure them. (Pl. Compl. ¶¶ 8--9.) After Plaintiff complied with this instruction, Reilly asked Plaintiff to exit his vehicle feet first and to stand next to it.*fn3 (Pl. Compl. ¶ 9.) Plaintiff attempted to comply, but was unsuccessful. Plaintiff lost his balance and removed his hands from his head to prevent himself from falling. (Pl. Compl. ¶ 10.) Plaintiff's second attempt to exit the vehicle was successful, but after doing so he lost his balance and leaned on Reilly for support. (Pl. Compl. ¶ 11) At that moment, Plaintiff's pants were falling down, which required him to remove his hands from his head in order to pull them back up. (Pl. Compl. ¶ 12.) Upon seeing Plaintiff remove his hands from his head a second time, Reilly pushed Plaintiff against his car and "took plaintiff to the ground," and "[u]pon falling to the ground, Corporal Reilly came down on top of [Plaintiff] James Bowman and immediately drew his weapon, extended it toward plaintiff's neck and fired." (Pl. Compl. ¶¶ 14, 15.)
III. MOTION TO DISMISS STANDARD
Defendants have moved to dismiss Plaintiff's state law tort claims (Counts II--IV) for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under a reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (reasoning that this statement of Rule 12(b)(6) standard remains acceptable following U.S. Supreme Court's decision in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) (internal quotations omitted)). To withstand a motion to dismiss under Rule 12(b)(6), "factual allegations must be enough to raise a right to relief above the speculative level." Phillips, 515 F.3d at 234. When a complaint contains well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, No. 07-1015, 2009 U.S. LEXIS 3472, at *31 (U.S. 2009) (reaffirming rationale set forth in Twombley). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 29. "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id.
A. Pennsylvania's Sovereign Immunity Doctrine
Defendants PSP and Reilly argue that Plaintiff's state law tort claims should be dismissed because they are barred under the doctrine of sovereign immunity.
Pennsylvania's sovereign immunity statute provides as follows: Pursuant to section 11 of Article I of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. 1 PA. CONS. STAT. ANN. § 2310. The immunity guaranteed by § 2310 extends to all "Commonwealth parties," which includes "Commonwealth agenc[ies] and any employee thereof, but only with respect to an act within the scope of his office or employment." 42 PA. CONS. STAT. § 8501. Thus, the Commonwealth, its agencies, and all Commonwealth employees acting within the scope of their employment are generally immune from suit.
There are, however, two exceptions to sovereign immunity for Commonwealth employees. First, the General Assembly has waived sovereign immunity, and thus consented to suit, in nine narrow circumstances. 42 PA. CONS. STAT. § 8522 (b). These exceptions apply to acts involving: (1) the operation of any motor vehicle in the possession or control of a Commonwealth party; (2) acts of health care employees of Commonwealth agency medical facilities or institutions; (3) the care, custody or control of personal property in the possession or control of Commonwealth parties; (4) a dangerous condition of Commonwealth agency real estate and sidewalks; (5) a dangerous condition of highways created by potholes, sinkholes, or other similar conditions; (6) the care, custody and control of animals in the possession or control of a Commonwealth party; (7) the sale of liquor at Pennsylvania liquor stores; (8) acts of members of the Pennsylvania military forces; and (9) the administration, manufacture, and use of a toxoid or vaccine not ...