Opinion
Civil Action No. 01-3639.
September 29, 2004
MEMORANDUM/ORDER
Currently before the court is defendant Pennsylvania Board of Probation and Parole's Motion to Dismiss it as a party in this action for lack of jurisdiction.
Plaintiff Doe concedes that defendant's motion should be granted as to the Pennsylvania Board of Probation and Parole because it is a state organ entitled to sovereign immunity. A claim may be dismissed pursuant to Rule 12(b)(6) where a defendant demonstrates that under the facts alleged it is entitled to immunity, even though immunity is typically raised as an affirmative defense. Frazier v. Southeastern Pa. Transp. Auth., 868 F. Supp. 757, 760 (E.D. Pa. 1994). The Eleventh Amendment in terms provides each state with immunity from suits brought in a federal court by citizens of other states; further, the amendment has been construed as, by implication, barring federal jurisdiction over suits brought against a state by its own citizens. Hans v. Louisiana, 134 U.S.1 (1890). The Pennsylvania Board of Probation and Parole is an agency of the Commonwealth of Pennsylvania. A suit may be brought against a state by one of its citizens only if: (1) Congress has, in implementation of its authority to enforce one of the post-Civil War amendments, expressly abrogated the state's sovereign immunity or (2) the state has waived its immunity. Neither congressional abrogation nor waiver has occurred in this case. Because sovereign immunity is a jurisdictional defense, all claims against the Board will be dismissed.
It is hereby ORDERED that defendant Pennsylvania Board of Probation and Parole's Motion to Dismiss for lack of jurisdiction is GRANTED and all claims against the Board are DISMISSED.