BLD

- 261 NOT PRECEDENTIAL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;

SUPERINTE NDENT 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

____________________________________ S ubmitted 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 C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

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 Pennsylvani a Department of Corrections, the Superinte ndent of Benner State Correctional Institution, where Ulrich is an i nmate, 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, t he 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
D efendant Eakin “torture [d] plaintiff’s mind , ” monitored him vi a “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 injunction s 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. 10.6.3

The District Court correctly determined that Ulrich lacks standing to challenge the method by which the Commonwe alth 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 no t 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
favorabl e 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) requi res 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 pla intiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is li able for the misconduct alleged. ” Ashcroft v. Iqbal , 5564

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 h is complaint described, in detail, the symptoms he attributed to consuming sodium
pe ntothal, his general allegations that the defendants “used” sodium pentothal lacks the requisite spec ificity to allow this Court to draw the reasonable inference that the
defendant s 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 elemen ts 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[i ng] [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 ea ting, knowing that sodium pentothal was in the food hindered (sic) to petition government for redress and freedom of speech quiet plaintiff about speaking5

out . . . and constituted cruel and unusual punishment and int erfering with freedom of speech” that c aused “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

assu mption 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.

1 The District Court did not err in denying Ulrich’s request for a preliminary inj unction. P reliminary 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 ret aliating against Ulrich using sodium pentothal , Ulrich has failed to demonstrate the like lihood 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 th e same preliminary injunction, that request is denied.