Richard Ulrich v. Governor of Pennsylvania, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, JORDAN and KRAUSE, Circuit Judges. Total Pages: 5. BLD-261. Denying Ulrich's request for counsel. To the extent Ulrich asks this Court to issue the same preliminary injunction, that request is denied.

Case: 14-3796

Document: 003112018139

Page: 1

BLD-261

Date Filed: 07/15/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-3796
___________
RICHARD ULRICH,
Appellant
v.

GOVERNOR OF PENNSYLVANIA;
SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
SUPERINTENDENT BENNER SCI
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-14-cv-01025)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 2, 2015
Before: AMBRO, JORDAN and KRAUSE, Circuit Judges
(Opinion filed: July 15, 2015)
_________
OPINION*
_________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 14-3796

Document: 003112018139

Page: 2

Date Filed: 07/15/2015

Richard Ulrich appeals the District Court’s order dismissing his civil rights
lawsuit. We will affirm.
Ulrich filed suit against the Governor of Pennsylvania, the Secretary of the
Pennsylvania Department of Corrections, the Superintendent of Benner State
Correctional Institution, where Ulrich is an inmate, and M.E. Eakin—a correctional
officer at the prison. Construed liberally, see Haines v. Kishner, 404 U.S. 519, 520
(1972), the complaint alleged that, in carrying out executions, the Commonwealth of
Pennsylvania was using Pentobarbital in lethal injections in violation 61 Pa. Cons. Stat. §
4304; prison food and commissary items were laced with sodium pentothal; and that
Defendant Eakin “torture[d] plaintiff’s mind,” monitored him via “devices and sensors”
and discouraged him from speaking out about the use of sodium pentothal. The
complaint requested declaratory relief, compensatory and punitive damages, and
preliminary injunctions enjoining the defendants from, inter alia, putting sodium
pentothal in the prison’s food and commissary items and communicating with Ulrich.
The District Court dismissed Ulrich’s complaint pursuant to the Court’s screening
obligations under 28 U.S.C. § 1915A. Ulrich appealed.
We have jurisdiction over his appeal pursuant to 28 U.S.C. § 1291 and exercise
plenary review over the District Court’s dismissal order. See Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000). We may affirm on any grounds supported by the record.
See Hughes v. Long, 242 F.3d 121, 121 n.1 (3d Cir. 2001). We may summarily affirm if
the appeal presents no substantial questions. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
2

Case: 14-3796

Document: 003112018139

Page: 3

Date Filed: 07/15/2015

The District Court correctly determined that Ulrich lacks standing to challenge the
method by which the Commonwealth of Pennsylvania implements the death penalty.
Although Ulrich alleged that the use of Pentobarbital in lethal injections will “subject him
to a very painful and burning execution,” he is serving a twelve to twenty-four year
prison sentence; he has not been sentenced to the death penalty. To establish Article III
standing, a plaintiff must allege that he suffers an injury that is “concrete, particularized,
and actual or imminent; fairly traceable to the challenged action; and redressable by a
favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010).
The injury must be “certainly impending”; allegations of possible future injury are
insufficient. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013). Accordingly,
Ulrich lacks standing to bring this challenge.
In addition, Ulrich’s complaint failed to satisfy Federal Rule of Civil Procedure
8(a)(2) regarding his claim that defendants “used” sodium pentothal in the prison’s food
and commissary items. Rule 8(a)(2) requires a complaint to set forth a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Although “detailed
factual allegations” are not required, there must be “enough to raise a right to relief above
the speculative level . . . on the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56
(2007). The Supreme Court went on to explain that “[a] claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
3

Case: 14-3796

Document: 003112018139

Page: 4

Date Filed: 07/15/2015

U.S. 662, 678 (2009). The Court observed that “[d]etermining whether a complaint states
a plausible claim to relief will . . . be a content-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id. at 679.
Here, Ulrich presented no more than the threadbare allegation that the “use of
sodium pentothal on [him]” violated various constitutional rights. Although his
complaint described, in detail, the symptoms he attributed to consuming sodium
pentothal, his general allegations that the defendants “used” sodium pentothal lacks the
requisite specificity to allow this Court to draw the reasonable inference that the
defendants are liable for the misconduct alleged. See Iqbal, 556 U.S. at 678. Moreover,
Ulrich’s conclusory allegations are not entitled to assumptions of truth. See Twombly,
550 U.S. at 557 (“[A] conclusory allegation of agreement at some unidentified point does
not supply facts adequate to show illegality.”).
Likewise, with respect to his claims against M.E. Eakin, Ulrich presented no more
than “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.” See Iqbal, 556 U.S. at 678. Ulrich alleged that Defendant Eakin
violated his constitutional rights by “sit[ting] and watch[ing] [him] through monitoring
devices and sensors” and “tortur[ing] [his] mind and then reward[ing] him with vivid
images (sexual in nature) of their bodies (sic) to release the anger inside of him.” The
complaint also stated: “Eakin’s statement, ‘you will lose,’ was to instill fear and paranoia
into [Ulrich] while eating, knowing that sodium pentothal was in the food hindered (sic)
to petition government for redress and freedom of speech quiet plaintiff about speaking
4

Case: 14-3796

Document: 003112018139

Page: 5

Date Filed: 07/15/2015

out . . . and constituted cruel and unusual punishment and interfering with freedom of
speech” that caused “emotional distress, pain and suffering, and the long term effects due
to the use of sodium pentothal for torturing, science purposes and psychotherapy.” These
conclusory allegations are insufficient to state a claim and are not entitled to any
assumption of truth. See Twombly, 550 U.S. at 557. Accordingly, we will affirm the
District Court’s dismissal of Ulrich’s complaint, and we agree with the District Court’s
determination that any amendment would be futile. 1 Because Ulrich’s appeal lacks any
arguable merit, we deny his request for counsel.

The District Court did not err in denying Ulrich’s request for a preliminary injunction.
Preliminary injunctive relief is “an extraordinary remedy” and “should be granted only in
limited circumstances.” With regard to Ulrich’s request to enjoin the defendants from
using Pentobarbital in lethal injections, and from threatening or retaliating against Ulrich
using sodium pentothal, Ulrich has failed to demonstrate the likelihood of success on the
merits. This failure alone establishes that he is not entitled to a preliminary injunction.
To the extent Ulrich asks this Court to issue the same preliminary injunction, that request
is denied.
1

5