United States District Court, Western District of Pennsylvania
MEMORANDUM OPINION AND ORDER 
SUSAN PARADISE BAXTER, United States Magistrate Judge.
Relevant Procedural History
This civil action was filed in this Court on July 24, 2012. Plaintiff, formerly an inmate incarcerated at SCI Albion, brought this civil rights action under 42 U.S.C. § 1983 challenging his conviction under Pennsylvania’s criminal statute outlawing “Possession with the Intent to Deliver 100-1000 grams of Cocaine.” ECF No. 5. The only named Defendant was “Commonwealth of Pennsylvania Attorney General of Pennsylvania (Linda Kelly).”
In response to the Original Complaint, Defendant moved to dismiss this action. ECF No. 11. Plaintiff filed an opposition brief in which he clarified his intent to challenge the constitutionality of the statute under which he was convicted, instead of the conviction itself. ECF No. 16, page 1. Plaintiff further explained that he made an error in the relief he sought in his complaint.
This Court dismissed the pending motion to dismiss and directed Plaintiff to file an Amended Complaint to more fully state his claim. ECF No. 17. The Amended Complaint was filed on April 30, 2013. ECF No. 18. Defendant again moved to dismiss this action. ECF No. 19. In opposition, Plaintiff filed a one-page brief explaining that he had not been able to research his legal arguments due to his placement at “Erie CCC.” ECF No. 24. Given the vague nature of the allegations of the Amended Complaint, it was impossible for this Court to determine whether Plaintiff had stated a claim upon which relief could be granted. Plaintiff was directed to file a Second Amended Complaintand the pending motion to dismiss was dismissed. ECF No. 26.
Thereafter, Plaintiff filed the Second Amended Complaint challenging the constitutionality of 18 Pa.C.S. § 7508, the statute detailing the mandatory minimum sentence for “Possession with the Intent to Deliver 100-1000 Grams of Cocaine.” ECF No. 27. As Defendants to this action, Plaintiff names the Commonwealth of Pennsylvania because “it is legally responsible for enforcing the statute” and the Attorney General of Pennsylvania because she “is legally responsible for the use of these statues and is allowed to intervene.” Id. at pages 1-2. As relief, Plaintiff seeks to have this Court “rule this statute unconstitutional has [sic] it caused the plaintiff and other irreparable harm and the state must be forced to change it. I only ask for the relief of the federal courts to rule this statute unconstitutional and force the state to make changes.” Id. at ¶ 22.
Defendants have filed a motion to dismiss. ECF No. 30. Despite being given the opportunity to do so, Plaintiff has failed to file a brief in opposition to the pending motion to dismiss.
Standards of Review
1) Pro se litigants
Pro se pleadings, “however inartfully pleaded, ” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969)(“[W]e should recognize that a habeas corpus petition prepared by a prisoner without the aid of counsel may be inartfully drawn and should therefore be read 'with a measure of tolerance.'”); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997), overruled on other grounds by Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate.
2) Motion to dismiss pursuant to Rule 12(b)(1)
A defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) may be treated as either a facial or factual challenge to the court’s subject matter jurisdiction. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) citing Mortensen v. First Fed. Sav. & Loan Ass’n., 549 F.3d 884, 891 (3d Cir. 1977). In reviewing a facial attack, which addresses a deficiency in the pleadings, the court must only consider the allegations on the face of the complaint, taken as true, and any documents referenced in the complaint, viewed in the light most favorable to the plaintiff. Id.; Turicentro, S.A. v. American Airlines, Inc., 303 F.3d 293, 300 (3d Cir. 2002). “The plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely consistent with such a right.” Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007) citing Bell Atlantic v. Twombly, 550 U.S. 544, 554 (2007).
But when a 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, the Court is “not confined to the allegations in the complaint and can look beyond the pleadings to decide factual matters relating to jurisdiction.” Cestonaro v. United States, 211 F.3d 749, 754 (3d Cir. 2000). In reviewing a factual attack, “the Court is free to weigh the evidence and satisfy itself whether it has power to hear the case.” Carpet Group Int’l. v. Oriental Rug Importers Ass’n., 227 F.3d 62, 69 (3d Cir. 2000) citing Mortensen, 549 F.2d at 891. The Third Circuit has explained:
Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction its very-power to hear the case there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits ...