West et al v. Brewer et al, No. 2:2011cv01409 - Document 18 (D. Ariz. 2011)

Court Description: AMENDED ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RETRAINING ORDER OR PRELIMINARY INJUNCTION. ORDERED denying 3 MOTION for Temporary Restraining Order or Preliminary Injunction FURTHER ORDERED granting 2 MOTION for Leave to Proceed in forma pauperis. Signed by Judge Neil V Wake on 7/18/11. (MAP)

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West et al v. Brewer et al 1 Doc. 18 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 20 ) ) ) ) ) Plaintiffs, ) ) vs. ) ) ) Janice K. Brewer, Governor of Arizona; ) Charles L. Ryan, Director, Arizona ) Department of Corrections; Ernest ) Trujillo, Warden, Arizona Department ) of Corrections - Eyman; Carson ) McWilliams, Warden, Arizona ) Department of Corrections - Florence; ) Does 1-50, ) ) Defendants. ) ) ) Thomas Paul West, Gregory Dickens, Charles M. Hedlund, Robert Wayne Murray, Theodore Washington, and Todd Smith, No. CV-11-1409-PHX-NVW DEATH PENALTY CASE AMENDED ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION 21 This matter is before the Court for consideration of Plaintiff Thomas Paul West’s 22 emergency motion for a temporary restraining order or a preliminary injunction. (Doc. 3.) 23 Plaintiff West, an Arizona inmate under sentence of death, is scheduled to be executed on 24 Tuesday, July 19, 2011, at 11:00 a.m. On July 16, 2011, he filed the instant motion as well 25 as a complaint pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis. 26 (Docs. 1-3.) The complaint alleges that the manner and means by which the Arizona 27 Department of Corrections (ADC) intends to execute him will violate his Eighth Amendment Dockets.Justia.com 1 right to be free from cruel and unusual punishment. The Court has considered the complaint 2 and its exhibits, the emergency motion, and all responsive pleadings. For the reasons that 3 follow, the Court denies Plaintiff West’s motion for a temporary stay of execution. 4 BACKGROUND 5 The facts underlying Plaintiff West’s conviction and death sentence for the 1987 6 murder of Donald Bortle in his Tucson home are detailed in the Arizona Supreme Court’s 7 decision on direct appeal and will not be repeated here. See State v. West, 176 Ariz. 432, 8 436-37, 862 P.2d 192 196-97 (1993). Because Plaintiff West committed his crime before 9 November 23, 1992, under Arizona law he has the choice to be executed by either lethal 10 injection or lethal gas. See A.R.S. § 13-757(B). According to the complaint, Plaintiff West 11 declined to choose. Consequently, ADC must use lethal injection to execute him. Id. 12 In 2007, Plaintiffs filed a § 1983 complaint challenging numerous aspects of 13 Arizona’s then-in-effect lethal injection protocol.1 That protocol was based on Department 14 Order 710, dated November 1, 2007, and as modified by an exhibit submitted by the parties 15 as part of a joint report to the Court. See Dickens v. Brewer, No. CV-07-1770-PHX-NVW, 16 2009 WL 1904294, at *1 & n.2 (D. Ariz. Jul. 1, 2009) (unpublished order). On July 1, 2009, 17 this Court granted summary judgment in favor of Defendants, concluding that Arizona’s 18 protocol was “substantially similar” to that approved by the Supreme Court in Baze v. Rees, 19 553 U.S. 35 (2008), and thus did not subject inmates to a substantial risk of serious harm in 20 violation of the Eighth Amendment. Id. On February 9, 2011, the Ninth Circuit Court of 21 Appeals affirmed. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). The appellate court’s 22 mandate issued on April 18, 2011. 23 The version of the protocol at issue in Dickens required sequential administration of: 24 (1) sodium thiopental, an ultra fast-acting barbiturate that induces unconsciousness; (2) 25 pancuronium bromide, a paralytic neuromuscular blocking agent that prevents any voluntary 26 27 1 Plaintiff West was not a party to this initial protocol challenge. -2- 1 muscle contraction; and (3) potassium chloride, which causes skeletal muscle paralysis and 2 cardiac arrest. “It is uncontested that, failing a proper dose of sodium thiopental that would 3 render [a] prisoner unconscious, there is a substantial, constitutionally unacceptable risk of 4 suffocation from the administration of pancuronium bromide and pain from the injection of 5 potassium chloride.” Baze, 553 U.S. at 53. 6 In October 2010, Arizona prisoner Jeffrey Landrigan filed a § 1983 complaint on the 7 eve of his execution describing a nationwide shortage of sodium thiopental and alleging that 8 ADC had imported the drug from a non-FDA-approved foreign manufacturer. The district 9 court granted a temporary restraining order to permit further discovery regarding efficacy of 10 the drug. Landrigan v. Brewer, No. CV-10-2246-PHX-ROS, 2010 WL 4269559 (D. Ariz. 11 Oct. 25, 2010) (unpublished order). The Supreme Court reversed, noting that there was “no 12 evidence in the record to suggest that the drug obtained from a foreign source is unsafe.” 13 Brewer v. Landrigan, 131 S. Ct. 445 (2010). 14 Subsequently, Arizona prisoner Daniel Cook filed a complaint similar to that of 15 Landrigan, alleging an unconstitutional risk of serious pain from use of non-FDA approved 16 sodium thiopental. The district court dismissed the complaint, finding that it failed to 17 sufficiently state a claim for relief. Cook v. Brewer, No. CV-10-2454-PHX-RCB, 2011 WL 18 251470 (D. Ariz. Jan. 26, 2011) (unpublished order). The Ninth Circuit affirmed and noted 19 that Arizona’s protocol contains safeguards that would prevent the administration of the 20 second and third drugs if the prisoner were not sufficiently anesthetized. Cook v. Brewer, 21 637 F.3d 1002, 1007-08 (9th Cir. 2011) (Cook I). Based on newly-discovered evidence 22 surrounding the foreign-manufactured sodium thiopental and ADC’s acquisition thereof, 23 Cook refiled a complaint on the eve of his execution. The district court summarily dismissed 24 the complaint, and the Ninth Circuit affirmed. Cook v. Brewer, --- F.3d ----, No. 11-15743, 25 2011 WL 1213095 (9th Cir. Apr. 1, 2011) (Cook II), cert. denied, 131 S. Ct. 2465 (2011); 26 Cook v. Brewer, No. CV-11-557-PHX-RCB, 2011 WL 1119641 (D. Ariz. Mar. 28, 2011) 27 -3- 1 (unpublished order). 2 On May 24, 2011, the night before the scheduled execution of Arizona prisoner 3 Donald Beaty, ADC notified Beaty and the Arizona Supreme Court that it intended to 4 substitute pentobarbital for sodium thiopental in carrying out Beaty’s execution but that 5 Arizona’s lethal injection protocol would otherwise remain the same as used in prior 6 executions. (Doc. 1, Ex. J at 1.) ADC noted that Arizona’s protocol authorized ADC’s 7 Director to make such a change and that the drug was obtained domestically. (Id.) ADC also 8 indicated that on this same day (May 24) a United States Associate Deputy Attorney General 9 contacted the Arizona Attorney General’s Office requesting that the sodium thiopental ADC 10 imported from a foreign source not be used in Beaty’s execution because the Drug 11 Enforcement Administration believed ADC failed to fill out one of the forms necessary for 12 importation of the drug. (Id. at 2.) 13 Beaty filed a § 1983 complaint. He asserted a due process violation from insufficient 14 notice and argued that the last-minute drug substitution would make it impossible for ADC 15 to comply with the protocol’s training requirement, thus subjecting him to a substantial risk 16 of pain and suffering. This Court denied injunctive relief, concluding inter alia that the lack 17 of practice with pentobarbital was insufficient to demonstrate a risk of serious harm in light 18 of the protocol’s safeguards ensuring the prisoner’s anesthetization prior to administration 19 of pancuronium bromide and potassium chloride. Beaty v. Brewer, --- F.Supp.2d ----, No. 20 CV-11-1037-PHX-NVW, 2011 WL 2050124, at *5 (May 24, 2011). The Ninth Circuit 21 affirmed, and the Supreme Court denied certiorari. Beaty v. Brewer, --- F.3d ----, No. 11- 22 99007, 2011 WL 2040916, at *6 (9th Cir.), cert. denied, 131 S. Ct. 2929 (May 25, 2011). 23 On June 10, 2011, ADC formally amended Department Order 710 to provide for the 24 administration of sodium pentothal (thiopental) or pentobarbital as the first of the three 25 sequentially-administered drugs. (Doc. 1, Ex. C at Attach. F.) 26 At 5:30 p.m. on July 14, 2011, Plaintiffs, through the Office of the Federal Public 27 -4- 1 Defender, received documents from ADC disclosed in response to a complaint filed by the 2 Federal Public Defender in the Maricopa County Superior Court seeking enforcement of a 3 request for public records made on February 3, 2011. (Doc. 1, Ex. A-B.) According to 4 Plaintiffs, these documents “reveal Defendants’ awareness of problems with the British 5 distributor that provided them with Sodium Thiopental” and suggest that ADC may have 6 “deviated from mandatory practice requirements.” (Doc. 1 at 4.) 7 DISCUSSION 8 In their § 1983 complaint, Plaintiffs allege that ADC’s unwillingness to follow its 9 written lethal injection protocol and its use of pentobarbital in place of sodium thiopental 10 create a substantial risk that they will suffer unnecessary pain during execution, in violation 11 of the Eighth Amendment. (Doc. 1 at 14-18.) Plaintiff West has moved for a temporary 12 restraining order or a preliminary injunction to enjoin his execution and to allow for litigation 13 of these claims. (Doc. 3.) 14 The standard for issuing a temporary restraining order is essentially the same as that 15 for issuing a preliminary injunction. To be entitled to injunctive relief, a movant must 16 demonstrate that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable 17 harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) 18 an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 19 365, 374, 376 (2008); National Meat Ass’n v. Brown, 599 F.3d 1093, 1097 (9th Cir. 2010); 20 see also Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir. 2005). The burden of 21 persuasion is on the movant, who must make “a clear showing.” Mazurek v. Armstrong, 520 22 U.S. 968, 972 (1997) (per curiam). 23 In the context of a capital case, the Supreme Court has emphasized that these 24 principles apply when a condemned prisoner asks a federal court to enjoin his impending 25 execution because “[f]iling an action that can proceed under § 1983 does not entitle the 26 complainant to an order staying an execution as a matter of course.” Hill v. McDonough, 547 27 -5- 1 U.S. 573, 583-84 (2006). Rather, “a stay of execution is an equitable remedy” and “equity 2 must be sensitive to the State’s strong interest in enforcing its criminal judgments without 3 undue interference from the federal courts.” Id. at 584. In addition, “[a] court may consider 4 the last-minute nature of an application to stay execution in deciding whether to grant 5 equitable relief.” Beardslee, 395 F.3d at 1068 (quoting Gomez v. United States District 6 Court, 503 U.S. 653, 654 (1991)). Thus, courts “must consider not only the likelihood of 7 success on the merits and the relative harms to the parties, but also the extent to which the 8 inmate has delayed unnecessarily in bringing the claim.” Id. (quoting Nelson v. Campbell, 9 541 U.S. 637, 649-50 (2004)). 10 I. Likelihood of Success 11 A. 12 The Eighth Amendment “prohibits punishments that involve the unnecessary and 13 wanton inflictions of pain, or that are inconsistent with evolving standards of decency that 14 mark the progress of a maturing society.” Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th Cir. 15 2004). 16 executions that “involve torture or a lingering death, or do not accord with the dignity of 17 man.” Beardslee, 395 F.3d at 1070. A violation of the Eighth Amendment can be 18 established by demonstrating there is a risk of harm that is “sure or very likely to cause 19 serious illness and needless suffering.” Helling v. McKinney, 509 U.S. 25, 33, 34 (1993). 20 In other words, there must be a “substantial risk of serious harm.” Farmer v. Brennan, 511 21 U.S. 825, 842 (1994). Relevant Legal Standard That prohibition necessarily applies to the punishment of death, precluding 22 In Baze v. Rees, the Supreme Court held that Kentucky’s method of execution by 23 lethal injection was consistent with the Eighth Amendment. The decision encompassed 24 seven separate opinions involving three blocks of Justices. In Ventura v. State, 2 So.3d 194, 25 200 (Fla. 2009), the Florida Supreme Court observed that the Baze plurality: 26 adopted a version of the substantial-risk standard, while Justice Breyer, concurring in the judgment, and Justices Ginsburg and Souter, dissenting, 27 -6- 1 5 adopted a version of the unnecessary-risk standard. In contrast, Justices Thomas and Scalia renounced any risk-based standard in favor of a rule of law that would uphold any method of execution which does not involve the purposeful infliction of “pain and suffering beyond that necessary to cause death.” Justice Stevens did not provide a separate standard but, instead, expressed general disagreement with (1) the death penalty based upon his long experience with these cases and the purported erosion of the penalty’s theoretical underpinnings (deterrence, incapacitation, and retribution), and (2) the allegedly unnecessary use of the paralytic drug pancuronium bromide. 6 Id. at 199-200 (citations and footnotes omitted). In response to Justice Stevens’s suggestion 7 that the plurality opinion leaves the disposition of other cases uncertain, Chief Justice 8 Roberts wrote: 2 3 4 9 10 11 12 13 [T]he standard we set forth here resolves more challenges than [Justice Stevens] acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol similar to the protocol we uphold today would not create a risk that meets this standard. Baze, 553 U.S. at 61 (emphasis added). 14 B. Claim One—Protocol Deviations 15 Plaintiffs allege that ADC has substantially deviated from its lethal injection protocol 16 and thus there is a substantial risk that the anesthetic drug will not be properly administered, 17 causing serious harm. (Doc. 1 at 15.) Plaintiffs cite to five deviations: (1) failure to 18 adequately train the execution team using pentobarbital; (2) failure to legally obtain drugs 19 from a safe and reputable source; (3) use of the femoral vein as the default access site; (4) 20 failure to leave IV insertion sites uncovered during executions; and (5) the substitution of 21 pentobarbital for sodium thiopental. (Id. at 7-9, 13.) The Court concludes that none are so 22 consequential that Plaintiff West has established a likelihood of success on his claim that he 23 will not be properly anesthetized prior to administration of pancuronium bromide and 24 potassium chloride. 25 Plaintiffs assert that ADC was unable to carry out its minimum training 26 requirements—ten practices using pentobarbital—prior to executing Donald Beaty on May 27 -7- 1 25, 2011. According to an ADC training log, fifteen practice sessions took place between 2 January 1 and May 24, 2011. (Doc. 1, Ex. L.) However, the log does not indicate which 3 anesthetic drug, if any, was used during these practices. Even assuming pentobarbital was 4 not utilized, this would not appear to be a deviation from the protocol as the protocol does 5 not specifically require that execution rehearsals include mixing or using the drugs.2 (See 6 Doc. 1, Ex. C, Attach. F at § B.5.) And even if the protocol contained such a requirement, 7 in light of the exigent circumstances caused by the Department of Justice’s last-minute 8 request not to use sodium thiopental, any failure to practice with pentobarbital does not 9 demonstrate, as urged by Plaintiffs, a “willful disregard” of the protocol. (Doc. 1 at 13.) 10 Lastly, as discussed below with regard to Claim Two, any risk of harm from failing to 11 practice mixing the chemicals is ameliorated by the protocol’s consciousness checks. 12 For the same reasons, the Court is unpersuaded by Plaintiffs’ allegation that ADC did 13 not follow its training requirements with respect to the use of pancuronium bromide during 14 rehearsals. Plaintiffs cite a September 2010 email to ADC’s Deputy Director from an 15 unknown sender as evidence ADC likely substituted saline during practices due to a shortage 16 of pancuronium bromide. (Doc. 1, Ex. I.) The email “recommend[s]” substituting saline or 17 another product given ADC’s short supply of pancuronium bromide. (Id.) However, within 18 days of this email, ADC ordered and received a shipment of pancuronium from Los Angeles. 19 (See Doc. 1, Ex. J, Attach. B.) Plaintiffs’ speculative assertion that saline may have been 20 substituted in practices is insufficient to establish a likelihood of success on the merits, 21 especially give the protocol’s silence on the use of actual drugs during execution rehearsals. 22 Petitioner next complains that ADC illegally obtained sodium thiopental and the other 23 2 24 25 26 27 Any suggestion to the contrary in this Court’s Beaty decision, 2011 WL 2050124, at *4, was based on a broad reading of a protocol provision that does not actually support that specificity. The protocol provision states: “The Division Director for Offender Operations and the Medical Team leader shall ensure that all team members thoroughly understand all provisions contained herein as written and by practice.” (Doc. 1, Ex. C, Attach. F at § B.6.) -8- 1 two drugs from a foreign supplier about which ADC had concerns. (Doc. 1 at 7-8.) In 2 support, they proffer an email to the Deputy Director cautioning that the foreign supplier’s 3 “website leaves something to be desired” and wondering whether the supplier was “reputable 4 and where exactly the medication would be coming from.” (Doc. 1, Ex. K.) First, the 5 acquisition of sodium thiopental is irrelevant in light of ADC’s intent to anesthesize Plaintiff 6 West with pentobarbital. Second, ADC obtained pancuronium bromide and potassium 7 chloride from a domestic supplier as well as a foreign one and indicated in the Beaty case 8 that it intended to carry out executions using drugs obtained domestically. (See Doc. 1, Ex. 9 J at 1 & Attach. B-C.) Third, Plaintiff has not explained how the legality of importing drugs 10 affects the constitutionality of their use. See Cook II, 2011 WL 1213095, at *3; Cook I, 637 11 F.3d at 1007 n.3. 12 Plaintiffs argue that ADC has failed to follow protocol by using the femoral vein as 13 the access site for the intravenous line in several recent executions. However, the protocol 14 expressly states femoral access is permissible if the Medical Team Leader determines that 15 it is not possible to place a reliable peripheral line. (Doc. 1, Ex. C, Attach. F at § G.8.) 16 Similarly, Plaintiff alleges that ADC violated its protocol by failing to insert a backup IV 17 catheter in two executions (Doc. 13 at 3 n.1), but the protocol provides that a backup is 18 unnecessary if the Medical Team Leader determines it is not possible to place two lines. 19 (Doc. 1, Ex. C, Attach. F at § G.1.) 20 Plaintiffs further allege that ADC covered the intravenous insertion sites during recent 21 executions, in contravention of the protocol. (Doc. 1 at 9; see Doc. 1, Ex. C, Attach. F at § 22 G.5.) Even if true, the Court concludes that this minor deviation is insufficient to establish 23 a likelihood of success on Plaintiffs’ Eighth Amendment claim. In upholding this Court’s 24 ruling in Dickens, the Ninth Circuit observed that the plaintiffs faced an uphill battle in trying 25 to demonstrate a substantial risk of improper anesthetization from a failure to follow 26 protocol. Dickens, 631 F.3d at 1146. “[T]he evidence must show more than single accident 27 -9- 1 or mistake or failure to follow the Protocol.” Id. at 1147. Here, even assuming ADC has 2 failed in the past several executions to follow protocol with respect to leaving visible the 3 intravenous insertion site, Plaintiffs do not explain how such deviation creates a significant 4 risk of unnecessary pain or suffering. Moreover, if the intravenous site during these 5 executions was accessed through a femoral vein in the prisoner’s groin area, it might not 6 have been logistically possible to leave the site completely uncovered. 7 Finally, Petitioner points to ADC’s last-minute substitution of pentobarbital in the 8 Beaty case as evidence that ADC is unable to follow its protocol as written. (Doc. 1 at 13.) 9 As already explained, however, exigent circumstances led to this change. As such, it was not 10 an arbitrary protocol deviation but a practical one ultimately made necessary by the 11 increasing difficulty of obtaining the chemicals needed to carry out lawfully-imposed 12 sentences of death. Although Plaintiffs focus on ADC’s deviation from the protocol’s literal 13 requirements, the relevant issue is whether such deviation creates a substantial risk of serious 14 harm. The Court concludes that Plaintiff West has failed to make a “clear showing” that it 15 does. See Baze, 553 U.S. at 50 (“[A]n isolated mishap alone does not give rise to an Eighth 16 Amendment violation, precisely because such an event, while regrettable, does not suggest 17 cruelty, or that the procedure at issue gives rise to a substantial risk of serious harm.”). 18 C. 19 Plaintiffs allege that although pentobarbital is a barbiturate like sodium thiopental, 20 unlike sodium thiopental it is untested for use as an anesthetic and lacks a standard 21 recognized dosage for inducing anesthetic coma. (Doc. 1 at 5, 10-11.) Plaintiffs also assert 22 that the manufacturer of pentobarbital has warned that the drug is not intended as an 23 anesthetic. (Id. at 10, 15-16.) Therefore, according to Plaintiffs, there is a substantial risk 24 that pentobarbital, even if successfully injected, may not prevent needless pain and suffering. 25 (Id. at 11, 15.) Plaintiffs further allege, based on problems reported during executions in 26 Alabama and Georgia as well as the affidavit of Dr. David Waisel, that the consciousness Claim Two—Use of Pentobarbital 27 - 10 - 1 checks in Arizona’s protocol are insufficient to ensure unconsciousness prior to 2 administration of pancuronium bromide and potassium chloride. (Id. at 12-13, 16-17.) 3 To show a likelihood of success on the merits of his Eighth Amendment claim, 4 Plaintiff must demonstrate that the use of pentobarbital as an anesthetic creates a 5 “demonstrated risk of severe pain.” Baze, 553 U.S. at 61. Both the Tenth and Eleventh 6 Circuits have expressly addressed this issue and found that use of pentobarbital does not 7 create a substantial risk of serious harm. See Powell v. Thomas, No. 11-12238, 2011 WL 8 1899564, at *2(11th Cir. May 19, 2011) (unpublished order), cert. denied, 131 S. Ct. 2487 9 (2011); Pavatt v. Jones, 627 F.3d 1336, 1340 (10th Cir. 2010), cert. denied, 131 S. Ct. 974 10 (2011). Noteably, the plaintiff in Pavatt conducted discovery, submitted an expert report, 11 and participated in an evidentiary hearing. In addition, pentobarbital has been used either 12 singularly or as a substitute for sodium thiopental in executions in several other states. 13 Dr. Waisel opines that because pentobarbital has rarely been used in an operating 14 room to anesthesize patients, “significant unknowns” about its use as an anesthesia “puts the 15 inmate at risk of needless pain and suffering.” (Doc. 1, Ex. D at 5.) This is nothing more 16 than speculation and was rejected by the court in Pavatt, who found “no clear error in finding 17 that the amount of pentobarbital selected for use by the [Oklahoma Department of 18 Corrections] as part of its protocol was sufficient to induce unconsciousness in an inmate.” 19 627 F.3d at 1340. Similarly, Dr. Waisel asserts that pentobarbital failed to properly 20 anesthetize two of the 16 inmates executed using pentobarbital, but again this is pure 21 speculation as Plaintiffs have produced no evidence demonstrating that any problems in those 22 cases were caused by the drug itself rather than misadministration. 23 Moreover, Arizona’s protocol has significant safeguards in place to ensure that a 24 prisoner is fully anesthetized prior to administration of pancuronium bromide and potassium 25 chloride. As noted by this Court in Dickens, although electronic monitors may be used to 26 measure brain activity, physical examination such as stroking a patient’s eyelashes to look 27 - 11 - 1 for reflex and monitoring his breathing pattern is as good or better for assessing the depth of 2 anesthesia. 2009 WL 1904294, at *12. To this end, the Arizona protocol: 3 4 5 6 7 8 9 10 11 12 13 14 15 requires that a microphone “be affixed to the inmate’s shirt to enable the Medical Team and Special Operations Team Leader to verbally communicate directly with the inmate and hear any utterances or noises made by the inmate throughout the procedure.” It requires that the inmate “be positioned to enable the Medical Team and Special Operations Team Leader to directly observe the inmate and to monitor the inmate’s face with the aid of a high resolution color NTSC CCD camera with 10x Optical zoom lens with pan tilt capability and a 19-inch resolution color monitor.” It requires the Medical Team to “continually monitor the inmate’s level of consciousness and electrocardiograph readings, maintaining constant observation of the inmate utilizing direct observation, audio equipment, camera and monitor as well as any other medically approved method(s) deemed necessary by the Medical Team.” It requires the warden to “physically remain in the room with the inmate throughout the administration of the chemicals in a position sufficient to clearly observe the inmate and the primary and backup IV sites for any potential problems.” Further, after administration of the sodium thiopental and heparin/saline flush, the Medical Team must “confirm the inmate is unconscious by sight and sound, utilizing the audio equipment, camera and monitor,” and a Medical Team member must “enter into the room where the inmate is located to physically confirm the inmate is unconscious, and that the catheter and lines are affixed and functioning properly, using methods deemed medically necessary.” Although the Arizona Protocol does not define “methods deemed medically necessary,” it is likely that Medical Team members, who must be medically trained, would be able to assess consciousness by telling the patient to respond and, upon receiving no response, be able to look for a simple reflex response to a tactile stimulus. 16 Id., at *21. If it appears that a prisoner is not fully anesthetized, the protocol prohibits the 17 administration of any further drugs. 18 Dr. Waisel opines that Arizona’s consciousness checks are insufficient because the 19 protocol does not specify the training, skills, and certification of the Medical Team Leader 20 conducting the check. (Doc. 1, Ex. D at 7.) However, the Ninth Circuit has specifically 21 determined that the consciousness checks required by the protocol are adequate to ensure that 22 a prisoner is anesthetized prior to administration of the second and third drugs. See Cook I, 23 637 F.3d at 1007-08. Dr. Waisel’s affidavit does not undermine the Circuit’s ruling or 24 suggest that anesthetization using pentobarbital instead of sodium thiopental requires a 25 different level of skill in assessing consciousness. 26 Finally, the Court does not find the manufacturer’s “warning” against pentobarbital 27 - 12 - 1 use in executions to be persuasive. 2 Department of Corrections it could not “assure the associated safety and efficacy” of using 3 pentobarbital for off-label use, it also made clear that it was “adamantly opposed” to the use 4 of pentobarbital “or any product for that matter, for the purpose of capital punishment” 5 because such use “contradicts everything we are in business to do—provide therapies that 6 improve people’s lives.” (Doc. 1, Ex. N.) This is insufficient evidence to establish a 7 substantial risk of harm. 8 9 10 Although the company relayed to the Georgia For all of these reasons, the Court concludes that Plaintiff West has failed to show a likelihood of success on the merits of his Eighth Amendment claim. II. Irreparable Harm 11 The Court also concludes that Plaintiff West has not shown that he is likely to suffer 12 irreparable harm in the absence of a stay. Plaintiff West asserts that he is at risk of suffering 13 pain if the pentobarbital does not adequately anesthetize him. However, any risks from using 14 pentobarbital in lieu of sodium thiopental is substantially mitigated by the safeguards 15 outlined above that will ensure Plaintiff West is fully anesthetized before the second and 16 third drugs are administered. 17 III. Balance of Equities & Public Interest 18 Plaintiff West murdered Donald Bortle twenty-four years ago. In Hill v. McDonough, 19 the Supreme Court recognized the “important interest in the timely enforcement of a 20 sentence” and cautioned that federal courts “can and should protect States from dilatory or 21 speculative suits.” 547 U.S. at 584-85. Given the State’s “strong interest in enforcing its 22 criminal judgments without undue interference from the federal courts,” and because “the 23 victims of crime have an important interest in the timely enforcement of a sentence,” the 24 Court concludes that the balance of equities favors Defendants and that a stay of execution 25 to resolve Plaintiff West’s speculative allegations is not in the public interest. Id. at 584. 26 The Court also observes that although there was some delay by Defendants in fully 27 - 13 - 1 complying with the Federal Public Defender’s public records request, the two newly-released 2 emails referenced by Plaintiffs in their complaint provide only tangential support for their 3 claims. The main thrust of the complaint—inefficacy of pentobarbital for use as an 4 anesthetic and ADC protocol deviations—could have been asserted at least by the end of 5 May when Beaty was executed using pentobarbital or shortly after the allegedly problematic 6 execution in Georgia on June 23. The Court finds that Plaintiff West unnecessarily delayed 7 filing suit until July 16, just three days before his scheduled execution. Therefore, equity 8 also favors denial of his request for a stay. See Nelson v. Campbell, 541 U.S. at 649-50. 9 CONCLUSION 10 Plaintiff West has not demonstrated entitlement to injunctive relief. 11 Accordingly, 12 IT IS HEREBY ORDERED that Plaintiff West’s Emergency Motion for Temporary 13 14 Restraining Order or Preliminary Injunction (Doc. 3) is DENIED. IT IS FURTHER ORDERED that Plaintiff West’s Application to Proceed In Forma 15 Pauperis (Doc. 2) is GRANTED. 16 Dated: July 18, 2011. 17 18 19 20 21 22 23 24 25 26 27 - 14 -

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