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Ulrich v. Corbett

United States District Court, M.D. Pennsylvania

July 28, 2014

RICHARD ULRICH, Plaintiff.
v.
TOM CORBETT, et. al, Defendants.

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, Magistrate Judge.

I. BACKGROUND.

On May 28, 2014, Plaintiff Richard Ulrich, currently an inmate at the State Correctional Institution at Benner Township ("SCI-Benner Township"), Bellefonte, Pennsylvania, filed, pro se , the instant civil rights action pursuant to 42 U.S.C. §§ 1983 and 1985(3).[1] (Doc. 1). Plaintiff also filed a Motion to Appoint Counsel on May 28, 2014. (Doc. 2). On June 6, 2014, Plaintiff filed a Motion for a temporary restraining order without a support brief. (Doc. 7). Plaintiff further filed an in forma pauperis Motion. (Doc. 9). Finally, Motions to Intervene as Plaintiffs under Rule 24 were filed in this case by SCI-Benner Township inmates Sam Rose, Maurice Elijah Ray, and Anthony Autwell since they aver they were "fed sodium pentothal in the prison food and commissary items" similar to Plaintiff Ulrich's allegations in his Complaint. (Docs. 6, 8 & 13). On July 14, 2014, we issued an Order (Doc. 15) denying Plaintiff's Doc. 2 Motion to Appoint Counsel and the Docs. 6, 8 &13 Motions to Intervene. In the same Order, we also deemed Plaintiff's Doc. 7 Motion for a temporary restraining order as withdrawn, since Plaintiff did not file a support brief as is required.

Plaintiff's rambling and disjointed Complaint consists of fourteen (14) single-spaced, typed pages with 123 paragraphs. Plaintiff indicates in his caption and "Plaintiffs" section that his Complaint is filed on behalf of "others similarly situated, " i.e. , as a class action. (Doc. 1, p. 1). It appears Plaintiff is essentially alleging that Defendants Corbett and Wetzel have violated 61 Pa.C.S. § 4304(a), Method of Execution. Additionally, Plaintiff claims a plethora of civil rights violations due to "the use of sodium pentothal in the prison foods and commissary items since 2011" and he alleges that he complained to Correctional Officers, medical personnel and the prison psychologist. (Doc. 1, p. 4).

Plaintiff also attaches a number of Exhibits to his Complaint (Doc. 1, pp. 15-53), including: letters from "Andrea P. from Mary Mother of Captives, " "with inferences in relations to his current criminal case and the use of sodium pentothal" (Doc. 1, pp. 15-16); cash slips regarding Plaintiff's sick calls ( Id. at 17-19); a Chuck E. Cheese advertisement where Plaintiff seemingly notes inferences such as, "mouse placed into daughter's hair, " "teddy bear, " "frog, " "ground hog with #7 on nose, " "State of PA, " "dove, " "forms of seals, " "pirate symbol, possibly Pittsburgh" ( Id. at p. 20); a declaration from another inmate who states that Defendant Eakin called Plaintiff a "nut" when the inmate asked about paperwork filed against Defenant Eakin ( Id. at 21); Plaintiff's withdrawal of his criminal complaint against Defendant Eakin ( Id. , p. 22); two declarations from Plaintiff ( Id. , pp. 23 & 25) regarding his averments that the prison has experimented with him and other inmates as to how the mind reacts to the use of sodium pentothal; and another declaration from an inmate who states "Officer Nash confirmed that thier (sic) is in fact sodium pentothal in the DOC's food and commisarry (sic) items." ( Id. , p. 24).

Plaintiff names as Defendants: (1) Tom Corbett, Governor of the Commonwealth of Pennsylvania; (2) John E. Wetzel, Secretary of the PA Department of Corrections ("DOC"); and (3) David Pickens, Superintendent of SCI-Benner Township. In his Supplement, Plaintiff adds as his fourth Defendant M.E. Eakin, Correctional Officer at SCI-Benner Township. (Doc. 1-1, p. 1). Plaintiff indicates that Defendants are being sued individually and in their official capacity. Plaintiff is correct in stating this Court has jurisdiction over his § 1983 and § 1985(3) civil rights case pursuant to 28 U.S.C. §§ 1331 and 1343(a).

We will now screen Plaintiff's Complaint in accordance with § 1915 of the PLRA. See Abdul-Akbar v. McKelvie , 239 F.3d 307, 314 (3d Cir. 2001); Banks v. County of Allegheny , 568 F.Supp.2d 579, 589 (W.D. Pa. 2008).

II. STANDARDS OF REVIEW.

A. PLRA

The Prison Litigation Reform Act of 1995, [2] (the "PLRA"), obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. §1915. Specifically, § 1915(e)(2), which was created by § 805(a)(5) of the Act, provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

B. 42 U.S.C. § 1983

In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor , 451 U.S. 527 (1981); Kost v. Kozakiewicz , 1 F.3d 176, 184 (3d Cir. 1993). Further, Section 1983 is not a source of substantive rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v. Doe , 536 U.S. 273, 284-85 (2002); s ee also Holocheck v. Luzerne County Head Start, Inc. , 385 F.Supp.2d 491, 498-499 (M. D. Pa. 2005); Slater v. Susquehanna County , 613 F.Supp.2d 653, 660 (M.D. Pa. 2009) (citations omitted); Stankowski v. Farley , 487 F.Supp.2d 543, 550 (M.D. Pa. 2007) ("only those who act under color of state law are liable to suit under section 1983."). "In order to satisfy the second prong [of a §1983 civil rights action], a Defendant does not have to be a state official, but can also be held liable as a state actor." Slater v. Susquehanna County , 613 F.Supp.2d at 660(citations omitted).

It is well-established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior . See, e.g., Rizzo v. Goode , 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials , 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra . It is also well-settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which Plaintiff's claims are based. Id. As the Court stated in Rode v. Dellarciprete , 845 F.2d 1195, 1207 (3d Cir. 1998):

A defendant in a civil rights action must have personal involvement in the alleged wrongs.... [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).

A civil rights complaint must state time, place, and responsible persons. Id. Courts have also held that an allegation seeking to impose liability on a defendant based on supervisory status, without more, will not subject the official to section 1983 liability. See Rode, 845 F.2d at 1208.

The Court uses the same standard to screen a complaint as it does for a 12(b)(6) motion to dismiss. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) .

C. Motion to Dismiss

In Reisinger v. Luzerne County , 712 F.Supp.2d 332, 343-344 (M.D. Pa. 2010), the Court stated:

The Third Circuit Court of Appeals recently set out the appropriate standard applicable to a motion to dismiss in light of the United States Supreme Court's decisions Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009). "[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to state a claim that relief is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. Moreover, it continued, "[d]etermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted). McTernan v. City of York, 577 F.3d 521, 530 (3d Cir.2009). The Circuit Court discussed the effects of Twombly and Iqbal in detail and provided a road map for district courts presented with a motion to dismiss for failure to state a claim in a case filed just a week before McTernan, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.2009).
[D]istrict courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. [ Iqbal, 129 S.Ct. at 1949.] Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 1950. In other words, a complaint must do more than allege a plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Philips [v. Co. of Allegheny], 515 F.3d [224, ] 234-35 [ (3d Cir.2008) ]. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949. This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id . Fowler, 578 F.3d at 210-11.
The Circuit Court's guidance makes clear that legal conclusions are not entitled to the same deference as well-pled facts. In other words, "the court is not bound to accept as true a legal conclusion couched as a factual allegation.'" Guirguis v. Movers Specialty Services, Inc., No. 09-1104, 2009 WL 3041992, at *2 (3d Cir. Sept. 24, 2009) ( quoting Twombly, 550 U.S. at 555) (not precedential).

III. ALLEGATIONS OF COMPLAINT.

As mentioned, Plaintiff claims that Defendants Corbett and Wetzel have violated 61 Pa.C.S. § 4304(a)(1), Method of Execution, which states: "The death penalty shall be inflicted by injecting the convict with a continuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with chemical paralytic agents approved by the department until death is pronounced by the coroner. The coroner shall issue the death certificate." 61 Pa.C.S. § 4304(a)(1) (emphasis added). With respect to Defendant Corbett, Plaintiff claims "he has signed numerous death warrants for the use of Pentobarbital, a SHORT-INTERMEDIATE ACTING BARBITURATE to be used in the method of execution." (Doc. 1, p. 2)(emphasis original). Plaintiff avers that Defendant Wetzel "has made numerous attempts and continues to make attempts at injecting the condemned with a short-intermediate acting barbiturate that has no authority given by statutes." ( Id. ). Thus, Plaintiff states that "[u]pon information and belief, the continuous attempts at using pentobarbital will violate the Plaintiffs Ulrich and Others similarly situated's (sic) constitutional rights amounting to illegal killing" and will "subject[] [Plaintiff] to a very painful and burning execution." ( Id. at ¶¶ 14 & 29). Apparently, Plaintiff believes that his civil rights will be violated by the manner in which he is executed. With respect to this allegation, Plaintiff specifically alleges violations of due process, equal protection of the laws, privileges and immunities, and the Eighth Amendment's prohibition against cruel and unusual punishment. ( Id. at ¶¶ 108 & 109). However, we note the important fact that Plaintiff has not received a death sentence in the Commonwealth of Pennsylvania. On June 24, 2014, the undersigned's Chambers called SCI-Benner Township, and we were informed that Plaintiff's aggregate sentence is 12-24 years of incarceration. Thus, Plaintiff alleges Defendants Corbett and Wetzel's disregard of Pennslyvania's execution statute will violate his civil rights, even though he has not been sentenced to death in the Commonwealth of Pennsylvania.

The majority of Plaintiff's Complaint, however, has to do with the assertion that "[w]e are being fed sodium pentothal through the prison food and commissary items. Our Central (sic) nervous system's (sic) are/have built a tolerance to the effects of these anesthesias (sic)." ( Id. at ¶ 45). Plaintiff essentially alleges that sodium pentothal is being put into prison food and commissary items to build-up a tolerance so that prisoners are aware of the pain of execution. ( Id. at ¶¶ 42 & 45). Plaintiff states the use of sodium pentothal was put into prison food and commissary items since 2011. ( Id. at ¶ 38). Plaintiff also avers that he complained to prison staff about the use of sodium pentothal in prison food and commissary items but to no avail.

Plaintiff mentions that on April 6, 2011, he "was transferred to S.C.I. Cresson via the following prisons S.C.I. Camp Hill, VA Doc, S.C.I. Graterford, S.C.I. Camp Hill and Blair County Prison." ( Id. at ¶ 47). Plaintiff later indicates he was transferred back to SCI-Benner Township on April 29, 2013. ( Id. at ¶ 68). Plaintiff signed his present Complaint on May 19, 2014. ( Id. at p. 14). Thus, it appears that many of Plaintiff's allegations between April 6, 2011 and April 29, 2013, are either time-barred and/or are raised in an improper venue. Plaintiff's Complaint is disjointed and confusing, such that we are unable to discern when or where his allegations took place. Due to lack of clarity, we will only consider Plaintiff's claims arising after April 29, 2013, when Plaintiff was transferred back to SCI-Benner Township. ( Id. at ¶ 68). Thus, we will not consider paragraphs 47-67 of Plaintiff's Complaint commencing with events when Plaintiff was transferred to SCI-Cresson on April 6, 2011, since they appear to be time-barred and/or raised in an improper venue.

When Plaintiff arrived at SCI-Benner Township on April 29, 2013, he was placed in a cell with inmate Dave Higby. ( Id. ). Plaintiff avers that "Inmate Higby continued to torture the plaintiff through inferences and different forms of communications with the use of sodium pentothal." ( Id. at ¶ 71). Further, Plaintiff states that while listening to the local radio station he would "become so enraged that he would began (sic) screaming at his radio as if he was speaking directly to the personalities behind the messages that he was perceiving to forms of psychotherapy and direct communications with a certain woman." ( Id. at ¶ 73). Thus, Plaintiff believed the radio was communicating with him in the form of subliminal messages. ( Id. ). Plaintiff contends this was due to the use of sodium pentothal being put into the prison food and commissary items. ( Id. at ¶ 77).

On June 29, 2013, Plaintiff alleges that he was evaluated by medical personnel due to his complaints to staff about the use of sodium pentothal on him and, he states that he was placed into a psychiatric observation cell ("POC"). ( Id. ). The same day, Plaintiff states that he filed a grievance regarding the use of sodium pentothal on him. ( Id. at ¶ 78). After filing the grievance, Plaintiff states that he was diagnosed as delusional and subsequently classified as stability "D" mental status. ( Id. at ¶ 79). Plaintiff states "[t]his was done to diminish my creditibility (sic) with the allegations of sodium pentothal and to show me that the men with psychological problems need help because of the effects of this drug (Sodium Pentothal)." ( Id. ).

Plaintiff contends he still felt the effects of sodium pentothal, having symptoms such as "deep states of depression, continuous pressure in head (sic), boring like pains, large amounts of precipitation (sic) while trying to work out, more then (sic) the other men." ( Id. at ¶ 81). Plaintiff then told Dr. Xue "that [he] was speaking to voices in his head that were at different locations, being in a office here at S.C.I. Benner Township and the State College and possibly individuals at a local radio station being B94.5." ( Id. at ¶ 84). Dr. Xue ordered Plaintiff to have a CAT Scan. ( Id. ). Plaintiff believes Dr. Xue did this in order to "lable (sic) the plaintiff as having scizophrenia (sic) to diminish plaintiff's credibility even further with his assertion with sodium pentothal." ( Id. ).

The remainder of Plaintiff's Complaint concerns various symptoms he alleges were caused by the sodium pentothal, including: large amounts of pressure in his head; understanding subliminal messages through music, television, signs, and signals; hearing voices and seeing images in his head; and a drastic drop in weight loss. ( Id. at ¶¶ 85-101). Finally, "Plaintiff believes upon and information and belief, that [radio station] B94.5 was contracted to play certain music to use in illiciting (sic) mens past thoughts to perform a version of self-psychotherapy and intentionally torture plaintiff in how his mind would percieve (sic) certain music as if this woman was communicating with him by using different jondras (sic) of music to crucify plaintiff because of his past and willing to speak out on the corruption." ( Id. at ¶ 102).

Plaintiff also supplemented his Complaint to add M.E. Eakin, Correctional Officer at SCI-Benner Township, as a Defendant. Plaintiff avers that Defendant Eakin stated "you will lose" while Plaintiff was eating in order "to instill fear and paranoia, " such that he would not speak out about his criminal case or the use of sodium pentothal on inmates. Additionally, Plaintiff states that Defendant Eakins monitors him using devices and sensors, which is "a new form of brain mapping, through sensoring (sic) devices here in the institution." (Doc. 1-1 at ¶ 3). Plaintiff contends that Defendant Eakin "would torture plaintiff's mind and then reward him with vivid images (sexual in nature) of their bodies to release the anger inside of him." ( Id. at ¶ 4). Finally, Plaintiff claims "these individuals are studying plaintiff in relations to how the sodium pentothal effects (sic) his mind and intelligence for experiment purposes and a form of a forced relationship (Stockholming)." ( Id. at ¶ 5). Plaintiff claims Defendant Eakins has violated his right against cruel and unusual punishment under the Eighth Amendment and interference with his freedom of speech, in violation of the First Amendment to the United States Constitution.

As previously mentioned, Plaintiff has sued Defendants Corbett and Wetzel because their "conscious decision" not to follow the wording of 61 Pa.C.S. § 4304(a) and Plaintiff states that this constitutes "cruel and unusual punishment, due process violation, equal protection of laws and abuse of power enforcing an unknown authority under the 1st Amend., 5th Amend., 8th Amend. and 14th Amend. in the United States Constitution causing emotional distress, pain and suffering." (Doc. 1 at ¶ 108).

Plaintiff also sues Defendants Corbett, Wetzel, and Pickens because the use of sodium pentothal in the prison will increase his tolerance to anesthesia, "causing another botched execution with severe burning, muscle, convulsions, pains and cardiac arrest against the smooth transition guaranteed." ( Id. at ¶ 112). Plaintiff claims that this conduct violates his rights against cruel and unusual punishment. ( Id. ). Additionally, Plaintiff avers his Fourth Amendment protection against illegal search and seizure was violated because the use of sodium pentothal "seiz[ed] his mental capabilities while searching for a way to deter plaintiff from speaking out." ( Id. at ¶ 114).

As relief, Plaintiff requests a declaratory judgment that Defendants have violated his civil rights, a preliminary and permanent injunction ordering Defendants to stop the use of sodium pentothal in the prison food and commissary items, compensatory damages exceeding $500, 000 against each Defendant, punitive damages exceeding $500, 000 against each Defendant, a jury trial, and costs for the suit.[3] ( Id. at ¶¶ 117-122).

As discussed below, we find that Plaintiff has failed to state any cognizable constitutional claim and we will recommend ...


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