REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, Magistrate Judge.
Before the Court is a motion to dismiss filed by the sole Defendant to this action on December 8, 2017. (Doc. 3). The Defendant, a federal employee, argues that the complaint should be dismissed because the Court lacks subject matter jurisdiction, as the Defendant is shielded by sovereign immunity, and because the Plaintiff has failed to state a claim for relief. (Doc. 4). The Plaintiff has not responded to the motion. For the reasons contained in this Report and Recommendation, the undersigned recommends that Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE and leave to amend be given in order to adduce the basis for the suit.
I. BACKGROUND AND PROCEDURAL HISTORY
This action arrives before the Court following removal from the Luzerne County Magisterial District Court. (Doc. 1); Snelling v. Harrison, No. MJ-11103-CV-0000567-2017 (Luzerne Cnty. M.D.C.). In the complaint filed in Luzerne County, dated November 6, 2017, pro se Plaintiff Sydney Snelling states:
On 10\11\17 Brain Harrison stated that I was sleeping and completely unresponsive and unaware of my surroundings. And that he had to physically wake me up when in fact I only had my eyes closed to get relief from soreness due to eye surgery 3 wks prior. When Brain opened the door I immediately opened my eyes we stared at each other for approx 5 sec. He said you cant be sleeping I said I know that. He did not walk over to wake me up because I wasn't sleep This incident was captured on camera but this footage was for some reason not saved to verify my statement of the facts[.]
(Doc. 1-2, at 2).
Judge Joseph D. Zola set a hearing for December 1, 2017. (Doc. 1-2, at 1). On November 30, 2017, the Defendant removed the action to this Court.
On December 8, 2017, Defendant, Brian Harrison, filed the instant motion to dismiss. (Doc. 3). In support, Harrison argues that this Court lacks subject matter jurisdiction because Harrison is a federal agent and acted in his official capacity, thus relief is barred by the doctrine of sovereign immunity. (Doc. 4, at 2-5). Harrison further argues that, jurisdictional basis aside, Snelling's claim should be dismissed on the merits because Snelling has failed to state a claim upon which relief can be granted. (Doc. 4, at 9). Snelling has not responded to the motion, despite the Court's sua sponte extension of time entered on February 6, 2018. (Doc. 5).
As such, the motion is deemed unopposed and ripe for review. See M.D. Pa. L.R. 7.6.
II. STANDARD OF REVIEW
A federal court is bound to consider its own jurisdiction preliminary to consideration of the merits. Gorton v. Air & Liquid Sys. Corp., 303 F.Supp.3d 278, 288-89 (M.D. Pa. 2018) (quoting Trent Realty Assocs. v. First Fed. Sav. & Loan Ass'n of Phila., 657 F.2d 29, 36 (3d Cir. 1981)). The burden of establishing jurisdiction lies with the party seeking to invoke the court's jurisdiction. Gorton, 303 F. Supp. 3d at 289 (citing Kehr Packages, Inc., v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). In deciding a Rule 12(b)(6) motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
III. DISCUSSION
The Court first considers the jurisdictional grounds for dismissal. The burden is placed on the party "seeking to invoke the court's jurisdiction" to establish the Court as the proper adjudicator of the dispute. Defendant argues that this Court does not have jurisdiction, though the Defendant is also the party who invoked the Court's jurisdiction by removing the action from state court.1
Courts considering a jurisdiction-based dismissal have two standards in evaluating whether jurisdiction is proper, with the applicable standard determined by the nature of the challenge to jurisdiction itself. "[J]urisdictional challenges take two forms: (1) parties may make a `factual' attack, arguing that one or more of the pleading's factual allegations are untrue, removing the action from the court's jurisdiction; or (2) they may assert a `facial' challenge, which assumes the veracity of the complaint's allegation but nonetheless argues that a claim is not within the court's jurisdiction." Corman v. Torres, 287 F.Supp.3d 558, 566 (M.D. Pa. 2018) (citing Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015)). If reviewing a factual attack, a court may consider evidence outside the pleadings. If a facial attack, a court "considers the allegations of the complaint and documents referenced therein and attached thereto in the light most favorable to the plaintiff." Gorton, 303 F. Supp. 3d at 289 (citing Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)).
The proper standard here is clear: the Defendant facially challenges jurisdiction. Thus, the Court may only consider the complaint and documents referenced or attached thereto.2 While a reviewing court is tasked with considering the merits separately, reviewing a facial challenge to jurisdiction forces a court to nonetheless address the facts in a manner not entirely separate from the merits themselves.
Repeating the facts provided above, the complaint lays out Snelling's claims in a single paragraph:
On 10\11\17 Brain Harrison stated that I was sleeping and completely unresponsive and unaware of my surroundings. And that he had to physically wake me up when in fact I only had my eyes closed to get relief from soreness due to eye surgery 3 wks prior. When Brain opened the door I immediately opened my eyes we stared at each other for approx 5 sec. He said you cant be sleeping I said I know that. He did not walk over to wake me up because I wasn't sleep This incident was captured on camera but this footage was for some reason not saved to verify my statement of the facts[.]
(Doc. 1-2, at 2).
Quite simply, the Court cannot evaluate whether jurisdiction is proper based on the facts alleged. While the Defendant argues that sovereign immunity renders the claim non-cognizable, the Plaintiff's complaint is so devoid of factual development and grounds for relief that the Court cannot confidently adduce that the cause of action relates to the performance of official duties that would invoke sovereign immunity.
However, for the same lack of factual averments, the Court is inclined to agree that Snelling has failed to state a claim upon which relief can be granted and his complaint should be dismissed under Rule 12(b)(6). The facts alleged, credited as true and given full weight, describes Harrison mistakenly believing that Snelling was sleeping and rousing Snelling. Even with the less stringent pleading standards governing complaints drafted by pro se litigants, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), Snelling offers no basis for relief. There is no description of location, contact, ramifications, or other conduct that would demonstrate entitlement to relief. Accordingly, the Defendant's motion to dismiss should be GRANTED and Snelling's complaint should be DISMISSED.
However, the Third Circuit instructs that district courts should permit a curative amendment if a complaint is vulnerable to dismissal for failure to state a claim, unless an amendment would inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Partially due to the barren nature of the allegations, the Court cannot conclusively state that amendment would be futile. Further, given the relatively early state of proceedings, affording the opportunity to amend would not be inequitable at this juncture even with Plaintiff's failure to respond at any point since removal. Accordingly, the Court recommends that leave to amend be GRANTED, and Plaintiff be Ordered to file an amended complaint within TWENTY-ONE (21) DAYS of the District Court's adoption of this Report and Recommendation. Lastly, should Plaintiff fail to comply, it is recommended that his complaint be DISMISSED WITH PREJUDICE and this action terminated.
IV. RECOMMENDATION
Based on the foregoing, it is respectfully recommended that the Defendant's motion to dismiss (Doc. 3) be GRANTED, and Plaintiff's complaint DISMISSED WITHOUT PREJUDICE. Considering the Plaintiff's pro se status, it is further recommended that leave to amend be given, and the Plaintiff Ordered to file an amended complaint within twenty-one (21) days; lest this action be terminated.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 12, 2018.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
