Towery et al v. Brewer et al, No. 2:2012cv00245 - Document 42 (D. Ariz. 2012)
Court Description: ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION re: 19 Plaintiffs' Emergency Motion for Temporary Restraining Order or Preliminary Injunction. Signed by Judge Neil V Wake on 2/23/12.(TLJ)
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Towery et al v. Brewer et al 1 Doc. 42 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 Robert Towery, et al., Plaintiffs, vs. 12 Janice K. Brewer, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-245-PHX-NVW DEATH PENALTY CASE ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION 15 Before the Court is a motion for preliminary injunction filed by Plaintiffs Robert 16 Towery and Robert Moormann, who are Arizona prisoners under sentence of death.1 (Doc. 17 19.) Moormann is scheduled to be executed on Wednesday, February 29, 2012, and Towery 18 is scheduled to be executed on Thursday, March 8, 2012. On February 6, 2012, Plaintiffs 19 filed a complaint pursuant to 42 U.S.C. § 1983, challenging the manner and means by which 20 the Arizona Department of Corrections (“ADC”) intends to execute condemned inmates by 21 lethal injection. (Doc. 1.) An amended complaint was filed on February 10, and the instant 22 motion was filed on February 14. (Docs. 8, 19.) The Court held a preliminary injunction 23 hearing on February 22 and has also considered the complaint, the motion, and all responsive 24 pleadings. This order states the Court’s findings of fact and conclusions of law. For the 25 reasons that follow, the Court denies the motion for stay of execution. 26 27 28 1 Other Arizona capital prisoners are plaintiffs to this action but none have an impending execution date. Therefore, throughout this order the term “Plaintiffs” will refer to Towery and Moormann, as they are the only plaintiffs seeking preliminary injunctive relief. Dockets.Justia.com 1 BACKGROUND 2 The facts underlying Plaintiffs’ convictions and capital sentences are detailed in the 3 Arizona Supreme Court’s appellate decisions and will not be repeated here. See State v. 4 Towery, 186 Ariz. 168, 174, 920 P.2d 290, 296 (1996); State v. Moormann, 154 Ariz. 578, 5 744 P.2d 679 (1987). Because Plaintiffs committed their crimes before November 23, 1992, 6 under Arizona law they have the choice to be executed by either lethal injection or lethal gas. 7 See Ariz. Rev. Stat. § 13-757(B). According to the complaint, Plaintiffs have declined to 8 choose. Consequently, ADC must use lethal injection to execute them. Id. 9 In 2007, a group of Arizona death row prisoners filed a § 1983 complaint challenging 10 numerous aspects of Arizona’s then-in-effect lethal injection protocol.2 That protocol was 11 based on Department Order 710, dated November 1, 2007, and as modified by an exhibit 12 submitted by the parties as part of a joint report to the Court. See Dickens v. Brewer, No. 13 CV-07-1770-PHX-NVW, 2009 WL 1904294, at *1 & n.2 (D. Ariz. Jul. 1, 2009) 14 (unpublished order). This Court granted summary judgment in favor of Defendants, 15 concluding that Arizona’s protocol was “substantially similar” to that approved by the 16 Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), and thus did not subject inmates to a 17 substantial risk of serious harm in violation of the Eighth Amendment. The Ninth Circuit 18 Court of Appeals affirmed. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). 19 The version of the protocol at issue in Dickens required sequential administration of: 20 (1) sodium thiopental (pentothal), an ultra fast-acting barbiturate that induces 21 unconsciousness; (2) pancuronium bromide, a paralytic neuromuscular blocking agent that 22 prevents any voluntary muscle contraction; and (3) potassium chloride, which causes skeletal 23 muscle paralysis and cardiac arrest. “It is uncontested that, failing a proper dose of sodium 24 thiopental that would render [a] prisoner unconscious, there is a substantial, constitutionally 25 unacceptable risk of suffocation from the administration of pancuronium bromide and pain 26 from the injection of potassium chloride.” Baze, 553 U.S. at 53. 27 28 2 None of the Plaintiffs in this matter were parties to that litigation. -2- 1 In October 2010, on the eve of his execution, Arizona prisoner Jeffrey Landrigan filed 2 a § 1983 complaint describing a nationwide shortage of sodium thiopental and alleging that 3 ADC had imported the drug from a non-FDA-approved foreign manufacturer. The district 4 court granted a temporary restraining order to permit further discovery regarding efficacy of 5 the drug. Landrigan v. Brewer, No. CV-10-2246-PHX-ROS, 2010 WL 4269559 (D. Ariz. 6 Oct. 25, 2010) (unpublished order). The Supreme Court reversed, noting that there was “no 7 evidence in the record to suggest that the drug obtained from a foreign source is unsafe” and 8 “no showing that the drug was unlawfully obtained.” Brewer v. Landrigan, 131 S. Ct. 445 9 (2010) (Mem.). 10 Subsequently, Arizona prisoner Daniel Cook filed a complaint similar to that of 11 Landrigan, alleging an unconstitutional risk of serious pain from use of non-FDA approved 12 sodium thiopental. The district court dismissed the complaint, finding that it failed to 13 sufficiently state a claim for relief. Cook v. Brewer, No. CV-10-2454-PHX-RCB, 2011 WL 14 251470 (D. Ariz. Jan. 26, 2011) (unpublished order). The Ninth Circuit affirmed and noted 15 that Arizona’s protocol contains safeguards that would prevent the administration of the 16 second and third drugs if the prisoner were not sufficiently anesthetized. Cook v. Brewer, 17 637 F.3d 1002, 1007-08 (9th Cir. 2011) (Cook I). Based on newly-discovered evidence 18 surrounding the foreign-manufactured sodium thiopental and ADC’s acquisition thereof, 19 Cook refiled a complaint on the eve of his execution. The district court summarily dismissed 20 the complaint, and the Ninth Circuit affirmed. Cook v. Brewer, No. CV-11-557-PHX-RCB, 21 2011 WL 1119641 (D. Ariz. Mar. 28, 2011) (unpublished order), aff’d, 649 F.3d 915 (9th 22 Cir.) (Cook II), cert. denied, 131 S. Ct. 2465 (2011). 23 On May 24, 2011, the night before the scheduled execution of Arizona prisoner 24 Donald Beaty, ADC notified Beaty and the Arizona Supreme Court that it intended to 25 substitute pentobarbital for sodium thiopental in carrying out Beaty’s execution but that the 26 remaining aspects of the lethal injection protocol would be followed. In this notice, ADC 27 also stated that the change was necessitated by information it had received that day from the 28 United States Department of Justice, indicating that ADC’s supply of sodium thiopental was -3- 1 imported without compliance with the Controlled Substances Act and could not be used. 2 Beaty filed a § 1983 complaint, asserting a due process violation from insufficient 3 notice and arguing that a last-minute drug substitution would make it impossible for ADC 4 to comply with the protocol’s training requirement, thus subjecting him to a substantial risk 5 of pain and suffering. This Court denied injunctive relief, concluding that the lack of 6 practice with pentobarbital was insufficient to demonstrate a risk of serious harm in light of 7 the protocol’s safeguards ensuring the prisoner’s anesthetization prior to administration of 8 pancuronium bromide and potassium chloride. Beaty v. Brewer, 791 F.Supp.2d 678, 684 (D. 9 Ariz. 2011). The Ninth Circuit affirmed. Beaty v. Brewer, 649 F.3d 1071 (9th Cir.), cert. 10 denied, 131 S. Ct. 2929 (2011). 11 On June 10, 2011, ADC amended Department Order 710 to provide for the 12 administration of sodium thiopental or pentobarbital as the first of the three sequentially- 13 administered drugs in its lethal injection protocol. 14 On July 15, 2011, Thomas West, along with the plaintiffs in Dickens, filed a § 1983 15 complaint challenging ADC’s implementation of its lethal injection protocol. Specifically, 16 the plaintiffs alleged that ADC’s failure to follow its written protocol and addition of 17 pentobarbital created a substantial risk of unnecessary pain and violated their rights to due 18 process and equal protection. West also sought emergency injunctive relief to enjoin his 19 impending execution, which was denied. See West v. Brewer, CV-11-1409-PHX-NVW, 20 2011 WL 2836754 (D. Ariz. Jul. 18, 2011) (unpublished order), aff’d, 652 F.3d 1060 (9th 21 Cir.), cert. denied, 131 S. Ct. 3092 (2011). Thereafter, this Court denied a motion for 22 summary dismissal and ordered expedited discovery. 23 Following a bench trial in December 2011, the Court entered judgment against the 24 West plaintiffs, finding no constitutional infirmities from ADC’s implementation of its lethal 25 injection protocol. West v. Brewer, No. CV-11-1409-PHX-NVW, 2011 WL 6724628 (D. 26 Ariz. Dec. 21, 2011) (unpublished order), appeal docketed, No. 12-15009 (9th Cir. Jan. 3, 27 2012). 28 deviations—default use of a femoral central intravenous (“IV”) line; failure to conduct In particular, the Court determined that none of the complained-of -4- 1 required background checks of the IV team members, document their qualifications, and 2 ensure IV-setting as part of their current professional duties; and failure to affix multiple 3 labels on syringes and accurately document disposal of unused drugs—created a substantial 4 risk the plaintiffs would be improperly anesthetized or otherwise suffer needless suffering 5 and severe pain. The Court noted that ADC Director Charles L. Ryan has “discretion to 6 deviate from the written protocol when safety, security, or medical issues in individual 7 circumstances require temporary deviation from the written protocol.” Id. at *11. However, 8 the Court further observed that the written protocol should reflect actual practice and should 9 be amended if “ADC no longer intends to follow the protocol as currently written.” Id. 10 On January 25, 2012, ADC again amended Department Order 710 (“the January 2012 11 Protocol”). The revised protocol permits execution using either a three-drug or one-drug 12 protocol and requires ADC’s director to choose between these two protocols at least seven 13 days prior to a scheduled execution. Ariz. Dep’t Corr., Dep’t Order 710, § 710.01, ¶ 1.1.2.4 14 & Attach. D, § C.1 (Jan. 25, 2012) (hereinafter “DO 710 (Jan. 2012)”). The protocol further 15 directs that the director, upon consultation with the IV team leader, shall determine the 16 catheter sites and that a central femoral venous line may not be utilized unless placed by a 17 medically-licensed physician with relevant experience. DO 710 (Jan. 2012), § 710.02, ¶ 18 1.2.5.4 & Attach. D, § E.1. 19 20 21 22 23 24 25 26 27 28 The January 2012 Protocol also changed the composition and experience requirements for the IV (Medical) team: The IV Team will consist of any two or more of the following: physician(s), physician assistant(s), nurse(s), emergency medical technician(s), paramedic(2), military corpsman, phlebotomist(s) or other appropriately trained personnel including those trained in the United States Military. All team members shall have at least one year of relevant experience in placing either peripheral or central femoral intravenous lines. DO 710 (Jan. 2012), § 710.02, ¶ 1.2.5.1 (emphasis added). The previous version used the phrase “or other medically trained personnel” instead of “other appropriately trained personnel” and required one year of “current and relevant professional experience in their assigned duties on the Medical Team” rather than just one year of “relevant experience.” -5- 1 Ariz. Dep’t Corr., Dep’t Order 710, Attach. D, § B.1 (Sept. 12, 2011) (hereinafter “DO 710 2 (Sept. 2011)”). In addition, the revised protocol requires IV team members to participate in 3 “at least one training session with multiple scenarios within one day prior to a scheduled 4 execution” rather than ten execution “rehearsals” annually as previously required. DO 710 5 (Jan. 2012), §§ 710.02, ¶ 1.1.2, 710.02, ¶ 1.2.5.5; DO 710 (Sept. 2011), Attach. D, § B.5. 6 Finally, the revised protocol permits only telephonic contact between an inmate and his 7 attorney after 9:00 p.m. the night before a scheduled execution, whereas previously counsel 8 were permitted unlimited non-contact visitation. DO 710 (Jan. 2012), § 710.11, ¶ 1.5; DO 9 710 (Sept. 2011), § 710.09, ¶ 1.5. DISCUSSION 10 11 In their complaint, Plaintiffs allege that ADC’s revised protocol impermissibly 12 eliminates safeguards, increases the ADC director’s discretion, and codifies arbitrary and 13 disparate treatment of capital prisoners, in violation of the Eighth and Fourteenth 14 Amendments. Plaintiffs further allege constitutional violations from ADC’s intent to execute 15 them using the three-drug protocol, including use of pancuronium bromide imported from 16 a foreign source, instead of the one-drug option. Finally, Plaintiffs allege that the January 17 2012 Protocol violates their due process right to notice concerning the specific drugs and 18 venous access to be used during execution and their right of access to counsel and the courts. 19 Plaintiffs have moved for a preliminary injunction to enjoin their execution to allow for 20 litigation of these claims. 21 A preliminary injunction is “an extraordinary and drastic remedy, one that should not 22 be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek 23 v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted). An injunction may 24 be granted only where the movant shows that “he is likely to succeed on the merits, that he 25 is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 26 equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural 27 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Beardslee v. Woodford, 395 F.3d 28 1064, 1067 (9th Cir. 2005). Under the “serious questions” version of the sliding-scale test, -6- 1 a preliminary injunction is appropriate when a plaintiff demonstrates that “serious questions 2 going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s 3 favor.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) 4 (citation omitted). This approach requires that the elements of the preliminary injunction test 5 be balanced, so that a stronger showing of one element may offset a weaker showing of 6 another. “‘[S]erious questions going to the merits’ and a balance of hardships that tips 7 sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the 8 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is 9 in the public interest.” Id. 10 In the context of a capital case, the Supreme Court has emphasized that these 11 principles apply when a condemned prisoner asks a federal court to enjoin his impending 12 execution because “[f]iling an action that can proceed under § 1983 does not entitle the 13 complainant to an order staying an execution as a matter of course.” Hill v. McDonough, 547 14 U.S. 573, 583-84 (2006). Rather, “a stay of execution is an equitable remedy” and “equity 15 must be sensitive to the State’s strong interest in enforcing its criminal judgments without 16 undue interference from the federal courts.” Id. at 584. 17 I. Likelihood of Success 18 A. 19 Plaintiffs allege in Claim Two of their complaint that the January 2012 Protocol is 20 facially invalid under the Eighth Amendment because it lacks safeguards necessary to reduce 21 a substantial risk of pain and suffering from implementation of the three-drug protocol. 22 Specifically, Plaintiffs allege that the following are required to sustain constitutionality of 23 Arizona’s protocol: (1) IV team members must have “current” professional experience 24 setting IV lines; (2) IV team members must be medically trained; (3) IV team members must 25 attend more than one training session on the day before an execution and must practice siting 26 IVs during training; (4) there must be a time limitation for finding and setting IV catheters; 27 and (5) the IV team must establish both a primary and a back-up IV line. (Doc. 8 at 21.) 28 Lack of Necessary Safeguards The Eighth Amendment “prohibits punishments that involve the unnecessary and -7- 1 wanton inflictions of pain, or that are inconsistent with evolving standards of decency that 2 mark the progress of a maturing society.” Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th Cir. 3 2004). 4 executions that “involve torture or a lingering death, or do not accord with the dignity of 5 man.” Beardslee v. Woodford, 395 F.3d at 1070 (internal citations omitted). A violation of 6 the Eighth Amendment can be established by demonstrating there is a “substantial risk of 7 serious harm” that is sure or very likely to cause pain and needless suffering. Dickens v. 8 Brewer, 631 F.3d at 1144-46 (adopting Baze plurality); see also Brewer v. Landrigan, 131 9 S. Ct. at 445. The risk must be an “‘objectively intolerable risk of harm’ that prevents prison 10 officials from pleading that they were ‘subjectively blameless for purposes of the Eighth 11 Amendment.’” Baze, 553 U.S. at 50 (citing Farmer v. Brennan, 511 U.S. 825, 842 (1994)). 12 In their motion for injunctive relief, Plaintiffs argue that during the Dickens litigation 13 ADC amended its protocol to add safeguards that made it substantially similar to the 14 Kentucky protocol upheld in Baze in order to win on summary judgment and that elimination 15 of these provisions puts the January 2012 Protocol outside the Baze safe harbor. In the recent 16 West litigation, however, this Court explained that during the Dickens litigation ADC had 17 “mooted some aspects of Plaintiffs’ facial challenge by promising to follow a written 18 protocol that was amended to closely conform to the protocol approved in Baze.” West, 2011 19 WL 6724628, at *11. The Court further noted that whether “any of the amendments were 20 constitutionally required was not adjudicated.” Id. Thus, there has been no determination 21 that the specific provisions of the protocol litigated in Dickens were constitutionally 22 mandated, and the issue here is not whether the Eighth Amendment is offended by the fact 23 ADC has again amended its lethal injection procedures. Rather, the question is whether there 24 exists a “risk of pain from maladministration” under the newly revised protocol. Baze, 553 25 U.S. at 41; see also Dickens, 631 F.3d at 1150 (“If Arizona amends the Protocol to modify 26 the current safeguards, Dickens—or another affected death row inmate—may be able to 27 challenge the constitutionality of the amended protocol.”). 28 That prohibition necessarily applies to the punishment of death, precluding In considering Plaintiffs’ Eighth Amendment challenge to the January 2012 Protocol, -8- 1 the Court is guided by the Supreme Court’s observation in Baze that “[s]ome risk of pain is 2 inherent in any method of execution—no matter how humane—if only from the prospect of 3 error in following the required procedure.” 553 U.S. at 47. A risk of future harm can qualify 4 as cruel and unusual punishment only if the conditions presenting the risk are sure or very 5 likely to cause serious illness and needless suffering, and give rise to sufficiently imminent 6 dangers. Id. at 49-50 (citations omitted). “Simply because an execution method may result 7 in pain, either by accident or as an inescapable consequence of death, does not establish the 8 sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” under the 9 Eighth Amendment. Id. at 50. 10 Plaintiffs argue that the January 2012 Protocol “allows minimally qualified or 11 incompetent personnel to conduct executions” because it no longer requires that the IV Team 12 members have medical training, have current experience setting IVs, or be personally 13 interviewed before being selected to participate in an execution. (Doc. 8 at 12, 21.) 14 Plaintiffs also take issue with Arizona’s failure to require the IV Team to conduct ten training 15 sessions per year, as previously mandated, and failure to include setting IV lines on 16 volunteers as part of the IV Team’s training, a provision also absent from the protocol upheld 17 in Dickens. 18 qualification requirements for members of the IV Team by eliminating altogether any 19 requirement that such persons be “qualified.” (Doc. 19 at 5.) Defendants disagree and assert 20 they modified the protocol to reflect the practice this Court found constitutional in West. In Plaintiffs’ view, the January 2012 Protocol significantly lowers the 21 In West, the Court had to determine whether deviations between the written protocol 22 and ADC’s practice in choosing members of the IV Team rose to an Eighth Amendment 23 violation. In doing so, the Court found that ADC’s deviation from the “current experience” 24 requirement—that Medical/IV Team members have one year of current experience in their 25 assigned execution-related duties—was reasonable in light of both the difficulty in locating 26 qualified individuals and the IV Team’s extensive past experience: 27 28 With respect to MTM-IV, approximately fifteen years had passed since he last placed a peripheral IV while in the military, but he had served as a corpsman for eight years, setting IVs on a weekly basis. He thus had -9- 1 2 3 extensive, albeit not recent, experience with peripheral IV lines. Division Director Patton interviewed MTM-IV prior to his selection, ADC administered a psychological fitness exam, and MTM-IV participated in numerous training exercises before each execution. There also is no evidence that any problems arose during the past five executions due to MTM-IV’s participation. 8 At the time MTL was first contacted by ADC about participating in the Comer execution, he was employed as an emergency room physician and regularly placed central IV lines. Shortly thereafter, he became a clinic physician but continued to work once a month in the emergency department for some months. Director Ryan first spoke with MTL by telephone and accompanied him to Florence for the practice sessions preceding Landrigan’s execution in October 2010. Based on his conversations with MTL, Ryan was satisfied that MTL was qualified, and MTL in fact had ample knowledge and experience needed to set a central line. 9 West, 2011 WL 6724628, at *13. Based on this Court’s determination that both MTM-IV 10 and MTL were qualified to serve on the IV Team despite the lack of current experience, 11 ADC amended its protocol to remove the “current” experience requirement. In doing so, 12 however, they made two other changes of significance here: permitting any “appropriately 13 trained personnel” (not just “medically trained”) to serve on the IV Team and eliminating the 14 necessity that an IV Team member’s one year of relevant experience be “professional” 15 experience. The question for this Court is whether the revised protocol, on its face, takes 16 Arizona outside of Baze’s safe harbor. The Court concludes that it does not. 4 5 6 7 17 In Baze, the Court found that Kentucky had “put in place several important safeguards 18 to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner.” 19 553 U.S. at 55. It noted that the “most significant” of these is the requirement that members 20 of the IV team have “at least one year of professional experience as a certified medical 21 assistant, phlebotomist, EMT, paramedic, or military corpsman.” Id. Although the Court 22 noted that Kentucky “currently uses a phlebotomist and an EMT, personnel who have daily 23 experience establishing IV catheters for inmates in Kentucky’s prison population,” the Court 24 did not affirmatively state that “current” experience was constitutionally mandated. Id.; see 25 also Nooner v. Norris, 594 F.3d 592, 605 & n.7 (8th Cir. 2010) (noting that “most 26 significant” Kentucky safeguard to Baze plurality was requirement IV team have at least one 27 year of professional experience, not that they insert catheters on a daily basis). The Court 28 also observed that members of Kentucky’s IV team participated in at least ten practice - 10 - 1 sessions per year, including the siting of IV catheters into volunteers, but again did not 2 affirmatively hold that this level of training was constitutionally mandated. Id. at 55. 3 Under Arizona’s revised protocol, only physicians, physician assistants, nurses, 4 emergency medical technicians, paramedics, military corpsmen, phlebotomists, “or other 5 appropriately trained personnel” with “at least one year of relevant experience in placing 6 either peripheral or central femoral intravenous lines” may serve on the IV Team. DO 710 7 (Jan. 2012), § 710.02, ¶ 1.2.5.1. The protocol further provides that IV Team members will 8 be selected by ADC’s director after “review of the proposed team member’s qualifications, 9 training, experience, and/or any professional license(s) and certification(s) they may hold” 10 and that ADC’s Inspector General’s Office shall conduct licensing and criminal history 11 reviews prior to assigning or retaining any IV Team member and upon issuance of a warrant 12 of execution. Id. at ¶ 1.2.5.2. In addition, the revised protocol requires IV Team members 13 to participate in at least one training session “with multiple scenarios” within one day of a 14 scheduled execution. Id. at ¶ 1.1.2. 15 At bottom, Plaintiffs’ claim rests on speculation that ADC will enlist unqualified 16 personnel to serve on the IV Team under the catch-all “other appropriately trained personnel” 17 category. In response to this Court’s questioning about the scope of the term “appropriately 18 trained,” counsel for Defendants acknowledged at the preliminary injunction hearing that the 19 training qualifications for such individuals would be no less than what is required of 20 individuals licensed to perform intravenous procedures. In addition to the “appropriately 21 trained” requirement, the director’s discretion in selecting IV Team members is 22 circumscribed by the requirement that IV Team members have at least one year of experience 23 placing either peripheral or central intravenous lines. With regard to the latter, the revised 24 protocol requires that only medically-licensed physicians with relevant experience insert 25 femoral central lines (and that a current licensing review be conducted prior to a scheduled 26 execution); Plaintiffs’ allegation that the protocol “allows unqualified individuals to insert 27 central, femoral lines” ignores this clear mandate. (Doc. 30 at 11.) 28 In West, the Court observed that the Eighth Amendment does not require the - 11 - 1 participation of licensed medical professionals in lethal injection executions. West, 2011 WL 2 6724628, at *13. In his Baze concurrence, Justice Alito observed that numerous medical 3 professional associations, including the American Medical Association, the American Nurses 4 Association, and the National Association of Emergency Medical Technicians, have ethical 5 proscriptions against participation in executions. Baze, 553 U.S. at 64-66 (Alito, J., 6 concurring). This then creates a dilemma for departments of corrections who are charged 7 with enlisting qualified personnel to place IVs for execution by lethal injection. Although 8 Arizona law protects the identity of those involved in executions and directs that no licensing 9 board may suspend or revoke a member’s license due to participation in an execution, see 10 Ariz. Rev. Stat. § 13-757, there is still a risk of ostracization if someone’s identity were 11 inadvertently revealed as well as the possibility of having to participate in depositions and 12 testify in court, as occurred in the West litigation. 13 Arizona has revised its protocol to eliminate the requirement that IV Team members 14 set IVs as part of their current employment and to broaden the scope of personnel who may 15 be selected to include those who are “appropriately trained” even if not a physician, 16 physician’s assistant, nurse, emergency medical technician, paramedic, military corpsman, 17 or phlebotomist. This may be less restrictive than standards adopted by other states. 18 However, the protocol on its face requires that IV Team members be appropriately trained 19 to place IVs and have at least one year of experience setting IVs. The Court finds that this 20 is sufficient, when combined with the numerous other safeguards addressed below, to 21 ameliorate the risk a prisoner will not be sufficiently anesthetized. Moreover, this Court 22 presumes ADC’s director will properly discharge his official duties when selecting IV team 23 members, Bracy v. Gramley, 520 U.S. 899, 909 (1997), and nothing in ADC’s execution 24 history suggests otherwise. In sum, the mere possibility an unqualified person may be 25 selected to serve on the IV Team does not demonstrate a risk of substantial harm. See Baze, 26 553 U.S. at 50 (“Simply because an execution method may result in pain, either by accident 27 or as an inescapable consequence of death, does not establish the sort of ‘objectively 28 intolerable risk of harm’ that qualifies as cruel and unusual.”). The Court also notes that - 12 - 1 Director Ryan has informed Plaintiffs here that for their impending executions ADC “has a 2 qualified IV Team in place. The Inspector General has completed all necessary background 3 checks on all of the IV Team members, and all of these team members meet the qualifications 4 specified in the protocol.” (Doc. 16-1 at 31.) 5 Plaintiffs also complain that IV Team members are not required to have experience 6 mixing or preparing drugs, monitoring the level of consciousness, or establishing time of 7 death.3 (Doc. 19 at 5.) However, such experience was neither required in ADC’s prior 8 protocol nor mandated by Baze. Indeed, the Baze Court expressly declined to find fault with 9 Kentucky’s employment of “untrained personnel” to mix the drugs and rejected the argument 10 that medically-trained professionals were necessary to assess consciousness. 553 U.S. at 54- 11 56, 59-60. 12 Admittedly, there are variances between Arizona’s revised protocol and that approved 13 in Baze regarding qualifications and training of IV Team members. However, the Court is 14 not persuaded that these differences are “constitutionally significant” in light of Baze’s 15 “broad” safe harbor. Raby v. Livingston, 600 F.3d 552, 560 (5th Cir. 2010) (rejecting 16 suggestion that Eighth Amendment satisfied only if “lethal injection practices actually 17 implemented in Kentucky and [the challenged state] were identical in all respects.”). Indeed, 18 selection of an experienced IV Team is only one of a panoply of safeguards against 19 maladministration of the first drug. Arizona’s protocol includes numerous other measures 20 to ensure that an adequate dose of barbiturate is administered, and each of these were in the 21 protocol version upheld in Dickens. 22 23 24 25 26 27 28 3 Plaintiffs also reassert a point raised in West that the Medical Team Leader who conducted consciousness checks in the past five executions said during his deposition that he would be unable to determine if a prisoner was conscious but paralyzed, or actually unconscious. (Doc. 30 at 4.) However, as the Court explained in West, the team leader “conducts the consciousness check only after administration of the anesthetic, not the paralytic. Thus, Plaintiffs’ argument rests on the speculative assumption that the pancuronium bromide will be mistakenly administered before the sodium thiopental or pentobarbital.” West, 2011 WL 6724628, at *18. - 13 - 1 First, the protocol requires use of a back-up catheter. In Baze, the Court noted that 2 “an additional dose can be given through the backup line before the last two drugs are 3 injected” in the event an insufficient dose of barbiturate is initially administered through the 4 primary line. 553 U.S. at 55. Plaintiffs contend the January 2012 Protocol is “unclear and 5 contradictory on the question of whether a back-up catheter is required.” (Doc. 8 at 15.) 6 They point to a reference in the protocol to “catheter(s) site(s),” suggesting that a single 7 catheter will be used, and to an instruction that the IV Team is responsible “for inserting 8 either peripheral IV catheters or a central femoral line,” suggesting “that there would either 9 be two peripheral catheters or one central line.” (Id.) However, the protocol states in no 10 uncertain terms that “[t]he IV Team members shall insert a primary IV catheter and a backup 11 IV catheter.” DO 710 (Jan. 2012), Attach. D, § E.1. This is not an ambiguous directive. 12 Second, the protocol mandates that a flow of heparin/saline “be started in each line 13 and administered at a slow rate to keep the line open.” Id. at § E.2. Running saline through 14 the IV lines after they are placed ensures that there are no blockages and that they are 15 operating properly before any lethal drugs are administered. This greatly reduces the risk of 16 maladministration from any initial difficulties establishing the IV lines. See Raby, 600 F.3d 17 at 558 (finding no risk of pain from problems with IV insertion because protocol requires IV 18 to flow properly for several minutes before lethal drugs are administered); Taylor v. 19 Crawford, 487 F.3d 1072, 1085 (8th Cir. 2007) (ensuring an IV is working and not 20 obstructed is one of the built-in checks that “renders any risk of pain far too remote to be 21 constitutionally significant”). 22 Third, the warden stays in the execution room and has an unobstructed view of the 23 catheter sites. DO 710 (Jan. 2012), Attach. D, at §§ E.4-E.5. This, the Court explained in 24 Baze, allows the warden to “watch for signs of IV problems, including infiltration.” 553 U.S. 25 at 56. “[I]dentifying signs of infiltration would be ‘very obvious,’ even to the average 26 person, because of the swelling that would result.” Id. 27 Most significantly, Arizona has enacted several consciousness checks the Court in 28 Baze declined to find necessary to reduce the risk a prisoner will not be sufficiently sedated. - 14 - 1 Dickens, 631 F.3d at 1146. Specifically, the protocol requires use of an electrocardiograph 2 and directs the IV Team to “continually monitor the inmate’s level of consciousness and 3 electrocardiograph readings, maintaining constant observation of the inmate utilizing direct 4 observation, audio equipment, camera and monitor as well as any other medically approved 5 method(s) deemed necessary by the IV Team Leader.” DO 710 (Jan. 2012), Attach. D, § 6 D.9. The protocol further directs the IV Team Leader to “physically confirm the inmate is 7 unconscious by using all necessary medically appropriate methods” and to reconfirm the IV 8 line remains affixed and functioning properly after administration of the barbiturate drug. 9 Id. at § F.5. In contrast, the Court in Baze found that visual inspection of the IV site by the 10 warden and deputy warden is sufficient to determine whether the first drug has entered an 11 inmate’s bloodstream and declined to require that states adopt “sophisticated procedures,” 12 such as use of an Bispectral Index monitor, blood pressure cuff, EKG, or other “tests for 13 checking consciousness–calling the inmate’s name, brushing his eyelashes, or presenting him 14 with strong, noxious odors,” to determine anesthetic depth. Baze, 553 U.S. at 59-60. 15 Finally, Plaintiffs argue that a time limitation for setting IV lines is a necessary 16 safeguard to prevent the risk they “will suffer a lingering death.” (Doc. 8 at 21.) “But an 17 inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the 18 State could take as a failsafe for other, independently adequate measures.” Baze, 553 U.S. 19 at 60-61. Rather, the alternative procedure being proposed “must be feasible, readily 20 implemented, and in fact significantly reduce a substantial risk of severe pain.” Id. at 52 21 (emphasis added). Plaintiffs’ Eighth Amendment claim is based on the risk of excruciating 22 pain that would result if the second and third drugs of the three-drug protocol were 23 administered absent the sedative effect produced by proper administration of the first drug, 24 not on any minor pain involved in multiple attempts to locate an adequate vein. If the IV 25 Team is unable to set a working IV line, Arizona’s protocol precludes the administration of 26 any lethal chemicals. Consequently, a time limit to set IVs is not the type of alternative 27 procedure that “in fact significantly reduce[s] a substantial risk of severe pain” and is 28 therefore not constitutionally mandated. Id. at 52. - 15 - 1 For the above reasons, the Court concludes that Plaintiffs have not carried their burden 2 of proving they are likely to succeed on the merits of their Eighth Amendment facial 3 challenge to ADC’s revised protocol. 4 B. Disparate Treatment 5 Plaintiffs allege in Claim One of their complaint that the January 2012 Protocol is 6 facially invalid under the Fourteenth Amendment’s Equal Protection Clause because it vests 7 unconditional discretion in ADC’s director to choose whether to employ the three-drug or 8 one-drug protocol, to select execution team members, to eliminate use of a backup catheter, 9 and to choose the anesthetic drug to be administered. Plaintiffs argue that Defendants have 10 no compelling state interest in, or rational basis for, treating condemned prisoners differently. 11 They further argue that the lack of guidelines or standards for determining when and under 12 what circumstances such distinctions may be warranted will result in equal protection 13 violations. 14 As a preliminary matter, the Plaintiffs misread the January 2012 Protocol with regard 15 to use of a backup catheter. Unlike the provisions vesting discretion concerning the chemical 16 protocol and drugs to be employed and selection of execution team members, the protocol 17 does not affirmatively require the director to choose whether a backup catheter will be 18 utilized. Instead, the protocol directs that the “IV Team members shall insert a primary IV 19 catheter and a backup IV catheter.” DO 710 (Jan. 2012), Attach. D, § E.1. As already noted, 20 this directive is unambiguous. 21 The Equal Protection Clause of the Fourteenth Amendment commands that no State 22 shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. 23 Const. amend. XIV, § 1. A state practice that discriminates against a suspect class of 24 individuals or interferes with a fundamental right is subject to strict scrutiny. Massachusetts 25 Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976). Plaintiffs allege that codifying disparate 26 treatment across executions without a principled basis for determining when deviations are 27 warranted impairs their fundamental right to be free from cruel and unusual punishment. 28 However, as just discussed, Plaintiffs have not demonstrated that the January 2012 Protocol - 16 - 1 subjects them to a substantial risk of serious harm in violation of the Eighth Amendment’s 2 prohibition against cruel and unusual punishment. 3 demonstrated that the revised protocol interferes with a fundamental right, and strict scrutiny 4 review is inapplicable. Accordingly, Plaintiffs have not 5 Plaintiffs also allege that they are, individually, a “class of one.” The Supreme Court 6 has “recognized successful equal protection claims brought by a ‘class of one,’ where the 7 plaintiff alleges that she has been intentionally treated differently from others similarly 8 situated and that there is no rational basis for the difference in treatment.” Vill. of 9 Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). However, the Court later 10 narrowed the scope of such claims, recognizing that not all state actions resulting in disparate 11 treatment raise equal protection concerns. See Engquist v. Oregon Dep’t of Agric., 553 U.S. 12 591, 601 (2008). 13 In Engquist, the Court held that the class-of-one theory of equal protection has no 14 application in the public employment context because it is a “poor fit” in a situation 15 involving discretionary decisionmaking. Id. at 605. The Court reasoned that such a theory 16 is workable only where there is some “clear standard against which departures, even for a 17 single plaintiff, could be readily assessed.” Id. at 602. In other words, where an official has 18 discretion to make a decision “based on a vast array of subjective, individualized 19 assessments,” “the rule that people should be ‘treated alike, under like circumstances and 20 conditions’ is not violated . . . because treating like individuals differently is an accepted 21 consequence of the discretion granted.” Id. at 603 (citations omitted). The Court concluded: 22 To treat employees differently is not to classify them in a way that raises equal protection concerns. Rather, it is simply to exercise the broad discretion that typically characterizes the employer-employee relationship. A challenge that one has been treated individually in this context, instead of like everyone else, is a challenge to the underlying nature of the government action. 23 24 25 Engquist, 553 U.S. at 605. 26 Although Engquist addressed state action specifically within the public employment 27 context, numerous courts have extended its rationale to other contexts in which a plaintiff 28 challenges discretionary state action under a class-of-one theory. For example, in Flowers - 17 - 1 v. City of Minneapolis, the Eighth Circuit applied Engquist’s rationale to police investigative 2 decisions, concluding that a “police officer’s decisions regarding whom to investigate and 3 how to investigate are matters that necessarily involve discretion.” 558 F.3d 794, 799 (8th 4 Cir. 2009) (emphasis added). And in Dawson v. Norwood, the district court concluded that 5 the class-of-one equal protection theory has no place “in the context of prison officials 6 making discretionary decisions concerning inmates.” No. 1:06-cv-914, 2010 WL 2232355, 7 at *2 (W.D. Mich. June 1, 2010) (unpublished order); see also Upthegrove v. Holm, No. 09- 8 cv-206, 2009 WL 1296969, at *1 (W.D. Wis. May 7, 2009) (unpublished order) (observing 9 that class-of-one equal protections claims “not cognizable in such an individualized and 10 discretionary setting as the prison setting” and dismissing claim based on prison official’s 11 decision about clothing inmate could wear at a particular time). 12 Like many states, Arizona leaves the precise protocol for carrying out executions by 13 lethal injection to the discretion of the state’s department of corrections. Ariz. Const. art. 14 XXII § 22 (“The lethal injection or lethal gas shall be administered under such procedures 15 and supervision as prescribed by law.”); Ariz. Rev. Stat. § 13-757(A) (“The penalty of death 16 shall be inflicted by an intravenous injection of a substance or substances in a lethal quantity 17 sufficient to cause death, under the supervision of the state department of corrections.”). In 18 addition, rules created by ADC are exempt from the general rule-making provisions of 19 Arizona’s Administrative Procedures Act. Ariz. Rev. Stat. § 41-1005(A)(23). Thus, ADC 20 has broad discretion in devising the manner and means for carrying out executions by lethal 21 injection, constrained generally by the Eighth Amendment’s prohibition against the infliction 22 of cruel and unusual punishment. Cf. Lightbourne v. McCollum, 969 So.2d 326 (Fla. 2007) 23 (“[T]his Court’s role is not to micromanage the executive branch in fulfilling its own duties 24 relating to executions. We will not second-guess the DOC’s personnel decisions, so long as 25 the lethal injection protocol reasonably states, as it does here, relevant qualifications for those 26 individuals who are chosen.”). 27 In their complaint, Plaintiffs acknowledge that all details and methods involved in the 28 execution process “are to be determined at the sole discretion of ADC,” including the drugs, - 18 - 1 dosages, drug combinations, and manner of intravenous line access to be used in the 2 execution process. (Doc. 8 at 6.) And as Plaintiffs further note, Arizona law does not set 3 forth any requirements for certification, training, or licensing of those individuals who 4 participate in the execution process. (Id.) Accordingly, ADC has exercised its discretion to 5 draft over 30 pages of detailed execution procedures. Although the vast majority of 6 Department Order 710 contains clear directives, some aspects are left to the discretion of 7 ADC’s director for determination on a case-by-case basis, including selection of the 8 execution team members and whether the prisoner will be executed using a three- or one- 9 drug protocol. 10 Plaintiffs assert generally that clear standards “must exist” for determining when and 11 under what circumstances ADC’s director will choose the chemical protocol to administer 12 or determine who is qualified to serve on the IV Team. (Doc. 8 at 19.) The only legal 13 authority cited for this proposition is a series of decisions by a district court in Ohio. See In 14 re Ohio Execution Protocol Litig., ___ F.Supp.2d ___, 2012 WL 84548 (S.D. Ohio Jan. 11, 15 2012), motion to vacate stay denied by, ___ F.3d ___, 2012 WL 118322 (6th Cir. Jan. 13, 16 2012), and ___ S. Ct. ___, 2012 WL 385467 (U.S. Feb. 8, 2012); Cooey v. Kasich, 801 17 F.Supp.2d 623 (S.D. Ohio 2011). However, the court’s rulings there hinged upon “persistent 18 failure or refusal of the State to follow its own written execution protocol,” In re Ohio 19 Execution Protocol Litig., ___ F.3d at ___, 2012 WL 118322, at *1, rather than on the 20 protocol’s lack of standards to guide discretionary decisionmaking; thus, they are inapposite. 21 The only appellate court to squarely address the issue raised here found “no support for [the] 22 ‘novel proposition’ that the Equal Protection Clause requires a written execution protocol 23 sufficiently detailed to ensure that every execution is performed in a precisely identical 24 manner.” DeYoung v. Owens, 646 F.3d 1319, 1327 (11th Cir.), cert. denied, 132 S. Ct. 46 25 (2011). 26 The fact that ADC has chosen to delegate some execution-related decisions to the sole 27 discretion of ADC’s director is itself a discretionary decision. Although the choices made 28 by the director may result in some variances during the execution process for different - 19 - 1 prisoners (e.g., composition of the execution team), such differences are “an accepted 2 consequence of the discretion granted” to ADC under state law. Engquist, 553 U.S. at 603. 3 Thus, the class-of-one doctrine does not extend to either the discretionary decisionmaking 4 employed when ADC revises its lethal injection protocol or to discretionary decisions made 5 by the director pursuant to that protocol.4 To prohibit states from revising execution 6 protocols or vesting discretionary decisionmaking within such protocols would “substantially 7 intrude on the role of state legislatures in implementing their execution procedures.” Baze, 8 553 U.S. at 51 (citing Bell v. Wolfish, 441 U.S. 520, 562 (1979) (“The wide range of 9 ‘judgment calls’ that meet constitutional and statutory requirements are confided to officials 10 outside of the Judicial Branch of Government.”)). 11 Moreover, recognition of a class-of-one theory in the execution protocol context 12 would subject nearly every protocol revision and discretionary decision to equal protection 13 review in federal court, regardless of whether the resulting change or decision impacted a 14 capital prisoner’s rights under the Eighth Amendment. See Jennings v. City of Stillwater, 383 15 F.3d 1199, 1210-11 (10th Cir. 2004) (observing that, “unless carefully circumscribed, the 16 concept of a class-of-one equal protection claim could effectively provide a federal cause of 17 action for review of almost every executive and administrative decision made by state 18 actors”); see also Engquist, 553 U.S. at 608-09 (“The Equal Protection Clause does not 19 require [the] displacement of managerial discretion by judicial supervision.”) (internal 20 citation omitted). 21 For these reasons, the Court concludes that, absent the most extraordinary 22 circumstances not present here, class-of-one claims do not lie in the execution protocol 23 24 25 26 27 28 4 This is not to say that discretionary decisionmaking by ADC may never offend the Equal Protection Clause. Equal protection would undoubtedly be implicated if prison officials made class-based decisions in the execution protocol context (i.e., treating distinct groups of individuals categorically different), or made decisions in the execution protocol context that intrude on the right to be free from cruel and unusual punishment. However, under either of those scenarios, the class-of-one theory of equal protection would be unnecessary to pursue such a claim. - 20 - 1 context. However, even if the class-of-one equal protection theory applies, Plaintiffs have 2 not demonstrated that the discretion afforded the ADC director by the January 2012 Protocol 3 is irrational. 4 “[R]ational-basis review in equal protection analysis is not a license for courts to 5 judge the wisdom, fairness, or logic of legislative choices.” Heller v. Doe by Doe, 509 U.S. 6 312, 319 (1993) (internal quotation omitted). Accordingly, a classification that does not 7 involve fundamental rights or proceed along suspect lines “is accorded a strong presumption 8 of validity” and “cannot run afoul of the Equal Protection Clause if there is a rational 9 relationship between the disparity of treatment and some legitimate governmental purpose.” 10 Id. at 319-20. A classification must be upheld “if there is any reasonably conceivable state 11 of facts that could provide a rational basis for the classification.” Id. at 320 (internal 12 quotation omitted). 13 Here, Plaintiffs assert in only a conclusory manner that there is no rational basis for 14 vesting discretion in ADC’s director to choose between a three-drug and one-drug protocol, 15 to select the execution team members, and to choose between sodium thiopental or 16 pentobarbital. ADC has a legal obligation to carry out lawfully-imposed capital sentences 17 and a legitimate interest in ensuring that executions are carried out in a reliable, humane, and 18 professional manner. This Court can discern no irrationality in the vesting of discretion in 19 ADC’s director to select the chemical protocol and execution team members for an individual 20 execution. 21 As demonstrated in previous litigation, drug supply issues arise, and ADC may not 22 always have a sufficient quantity of barbiturate (sodium thiopental or pentobarbital), 23 pancuronium bromide, or potassium chloride on hand. Plaintiffs assert drug availability is 24 an illogical rationale given the fact both protocols require the same amount of barbiturate. 25 (Doc. 30 at 10.) However, ADC has not executed anyone using only an overdose of 26 barbiturate, and the Ninth Circuit recently reiterated that a state “is free to choose to use the 27 three-drug protocol” over the one-drug protocol so long as “it does so in a way that is not 28 likely to cause substantial risk of serious pain.” Rhoades v. Reinke, ___ F.3d ___, 2011 WL - 21 - 1 5574900, at *5 (9th Cir. Nov. 16, 2011). ADC has executed over twenty-five inmates using 2 the three-drug protocol, which was designed in part to prevent “involuntary physical 3 movements during unconsciousness” and to hasten death. Baze, 553 U.S. at 57. As the 4 Court noted in Baze, a state “has an interest in preserving the dignity of the procedure, 5 especially where convulsions or seizures could be misperceived as signs of consciousness 6 or distress.” Id.; see also Workman v. Bredesen, 486 F.3d 896, 909 (6th Cir. 2007) 7 (“[P]ancuronium bromide . . . speeds the death process, prevents involuntary muscular 8 movement that may interfere with the proper functioning of the IV equipment, and 9 contributes to the dignity of the death process.”) (internal citation omitted). It is thus not 10 irrational for the director to prefer the three-drug protocol and to determine prior to a 11 scheduled execution which chemicals will be administered, based on their availability. 12 Similarly, the selection of execution team members is clearly subject to fluctuation, based 13 on the availability of such individuals to participate at a specific time. This is especially true 14 here given the fact an execution date is set by the Arizona Supreme Court only 35 to 60 days 15 after the court decides to issue a warrant. See Ariz. R. Crim. P. 31.17(c)(3). 16 17 18 19 20 21 22 23 24 25 26 27 For the foregoing reasons, the Court concludes that Plaintiffs have failed to establish a substantial likelihood of success on Claim One. C. Administration of Three-Drug Protocol with Imported Pancuronium Bromide According to the complaint, Director Ryan has notified Plaintiffs that ADC intends to execute them using the three-drug protocol and that the second drug, pancuronium bromide, was obtained from a foreign source. In Claim Three, Plaintiffs allege that use of foreign-obtained pancuronium bromide will subject them to a risk of pain and suffering because foreign-sourced drugs do not have FDA approval. Plaintiffs further allege their equal protection rights are violated by Director Ryan’s “arbitrary decision to select a protocol and a drug that increases the risk of harm without any compelling or legitimate interest.” (Doc. 8 at 23.) Plaintiffs’ Eighth Amendment allegations are speculative and conclusory. In Cook I, 28 - 22 - 1 the Ninth Circuit affirmed summary dismissal of a complaint that alleged “foreign 2 manufactured non-FDA approved drugs ‘may not be effective,’ ‘could be contaminated or 3 compromised,’ and ‘may be very different from FDA approved drugs with respect to 4 formulation, potency, quality, and labeling.’” 637 F.3d at 1006. The court concluded that 5 these allegations were “speculative and overly generalized claims applicable to every drug 6 produced outside the United States” and that the plaintiff had failed to allege any facts 7 showing that the foreign-manufactured drug was contaminated, compromised, or otherwise 8 substandard. Id. 9 As in Cook I, Plaintiffs have failed to allege any specific facts suggesting that ADC’s 10 supply of pancuronium bromide is counterfeit or in any way deficient.5 This is insufficient 11 to state a claim for relief under the Eighth Amendment, let alone demonstrate a likelihood 12 of success on the merits. Moreover, Arizona’s protocol has adequate safeguards to ensure 13 that pancuronium bromide is not administered until after the prisoner is fully anesthetized. 14 See Cook I, 637 F.3d at 1007-08, citing Dickens, 631 F.3d at 1143 (describing consciousness 15 checks). In addition, the five-gram dose of barbiturate administered as the first drug in 16 Arizona’s three-drug protocol is itself a lethal dose. See Jackson v. Danberg, 656 F.2d 157, 17 163 (3rd Cir. 2011) (observing that five grams of pentobarbital is lethal dose); Nooner, 594 18 F.3d at 607 (observing that two grams of sodium thiopental is “massive, and potentially 19 lethal, dose”). Thus, even if ADC’s supply of pancuronium bromide is in some way 20 compromised, there is little risk Plaintiffs would experience serious pain from its 21 administration. 22 The Court also finds that Petitioner has not demonstrated a substantial likelihood of 23 24 25 26 27 28 5 In their motion for injunctive relief, Plaintiffs reference the Court’s order in West stating that ADC had agreed not to use any imported drugs in an execution. (Doc. 19 at 7-8.) However, the “drugs” reference in that order was to ADC’s supply of sodium thiopental, which Director Ryan explained in his deposition was not being used at the request of the Drug Enforcement Agency. Ryan did not make a similar assertion as to imported pancuronium bromide or potassium chloride, and the DEA did not request that ADC abstain from using either of those chemicals. (See Doc. 34-1 at 8.) - 23 - 1 success on the merits of his equal protection claim. As already discussed, the class-of-one 2 theory of equal protection does not apply to discretionary decisionmaking within the 3 execution protocol context. However, even if it does, for the reasons set forth above, 4 Plaintiffs have failed to demonstrate any actual injury or irrationality from Director Ryan’s 5 decision to administer the three-drug protocol. 6 D. Lack of Notice 7 Plaintiffs allege in Claim Four that the January 2012 Protocol fails to provide 8 sufficient notice of the drug or drugs that will be used during an execution and fails to 9 provide any notice as to where ADC intends to site the IV lines to be used in an execution, 10 in violation of their rights to notice and an opportunity to be heard under the Due Process 11 Clause of the Fourteenth Amendment. 12 To establish a procedural due process violation, Plaintiffs must show that (1) they had 13 a property or liberty interest that was interfered with by Defendants, and (2) Defendants 14 failed to use constitutionally sufficient procedures in depriving Plaintiffs of that right. 15 Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989). “[A]n individual 16 claiming a protected interest must have a legitimate claim of entitlement to it. Protected 17 liberty interests ‘may arise from two sources—the Due Process Clause itself and the laws of 18 the States.’” Id. (citing Hewitt v. Helms, 459 U.S. 460, 466 (1983)). 19 Plaintiffs have not alleged that Arizona law creates an enforceable liberty interest. As 20 already noted, Arizona’s lethal injection protocol is not statutory—it is issued by ADC and 21 sets out technical procedures for carrying out executions. Rather, Plaintiffs rely on a district 22 court ruling in Oken v. Sizer, 321 F.Supp. 2d 658, 664 (D. Md.), stay vacated, 542 U.S. 916 23 (2004) (Mem.), in which the court stated: “Fundamental fairness, if not due process, requires 24 that the execution protocol that will regulate an inmate’s death be forwarded to him in 25 prompt and timely fashion.” However, there is no dispute that Plaintiffs have access to 26 ADC’s revised protocol. The issue is whether Plaintiffs have a due process right to more 27 than seven days’ notice of intended administration of the one- or three-drug protocol or in 28 any notice concerning intravenous access sites. The Court concludes they do not. - 24 - 1 In Beaty, the Ninth Circuit affirmed this Court’s determination that the plaintiff had 2 failed to show a likelihood of success on the merits of an alleged due process violation from 3 the substitution of pentobarbital for sodium thiopental less than twenty-four hours before his 4 scheduled execution. Beaty, 649 F.3d at 1072. In an opinion concurring in the denial of 5 rehearing en banc, Judge Tallman observed: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Though “the right to procedural due process is ‘absolute,’” it is not unmeasured.” Carey v. Piphus, 435 U.S. 247, 259, 266 (1978). “[I]n deciding what process constitutionally is due in various contexts, the Court repeatedly has emphasized that ‘procedural due process rules are shaped by the risk of error inherent in the truth-finding process . . . .’” Id. at 259 (quoting Mathews v. Eldrige, 424 U.S. 319, 344 (1976). Had Beaty raised a claim of significant merit, the “risk of error” would have risen and so, too, would the degree of process necessary to satisfy any constitutional concern. However, Beaty did not raise such a claim. Id. at 1074; see also Powell v. Thomas, No. 2:11-CV-376-WKW, 2011 WL 1843616, at *10 (M.D. Ala. May 16, 2011) (finding no authority for proposition that condemned inmate has due process right to notice and opportunity to be heard regarding substitution of pentobarbital), aff’d, 641 F.3d 1255 (11th Cir.), cert. denied, 131 S. Ct. 2487 (2011). If notice of a drug substitution less than twenty-four hours before an execution failed to state a sufficiently meritorious due process claim warranting injunctive relief in Beaty, this Court concludes that Plaintiffs have failed to show any likelihood of success on the due process claims raised here. First, Plaintiffs have not shown any credible risk that notice of the lethal chemical protocol only seven days prior to an execution may lead to cruel and unusual punishment. Plaintiffs do not dispute that a one-drug protocol is constitutional, acknowledging that “use of a barbiturate-only protocol would eliminate the risk of substantial pain that would occur if pancuronium bromide and potassium chloride were administered to an improperly anesthetized prisoner.” (Doc. 8 at 8.) In addition, the Court has separately determined that there is no likelihood of success on Plaintiffs’ claim that “significant departures” in the January 2012 Protocol create a substantial risk of serious harm from administration of the three-drug protocol. Although an inmate will not know which protocol will be applied until 28 - 25 - 1 at least a week before a scheduled execution, the details of both the one-drug and three-drug 2 protocols are set forth in Department Order 710 and may be challenged at any time. Indeed, 3 Claim Two of the instant complaint alleges Arizona’s revised three-drug protocol is facially 4 invalid even though not all of the plaintiffs in this action are under warrant of execution and 5 have not been notified by ADC which protocol will be used in their executions. 6 Second, Plaintiffs have not shown any credible risk that lack of notice regarding 7 intravenous siting may lead to cruel and unusual punishment. In Baze, the Court held that 8 “a condemned prisoner cannot successfully challenge a State’s method of execution merely 9 by showing a slightly or marginally safer alternative.” 553 U.S. at 51. “To qualify, the 10 alternative procedure must be feasible, readily implemented, and in fact significantly reduce 11 a substantial risk of severe pain.” Id. at 52. Plaintiffs do not allege any facts to support the 12 inference that the risk of pain and suffering during a lethal injection execution changes 13 substantially based on the siting of the intravenous access, and this Court has expressly 14 rejected the claim that use of a femoral central line causes constitutionally unacceptable pain 15 and suffering. See West, 2011 WL 6724628, at *17-18. Therefore, the Court finds no right 16 to notice and an opportunity to be heard as to intended placement of IV lines before an 17 execution. Cf. Clemons v. Crawford, 585 F.3d 1119, 1129 n.9 (8th Cir. 2009) (noting lack 18 of authority indicating due process right to probe into backgrounds of execution personnel). 19 Given the lack of authority and facts to support Plaintiffs’ alleged procedural due 20 process violations, the Court finds they have failed to establish a likelihood of success on the 21 merits of these claims. 22 E. Access to Counsel and Courts 23 The January 2012 Protocol precludes in-person legal visitation after 9:00 p.m. the day 24 prior to a scheduled execution, instead permitting only telephonic contact with attorneys of 25 record. Plaintiffs allege such calls will take place in a holding cell where ADC officers will 26 be present and thus there will be no opportunity for “privileged communication.” This 27 restriction, Plaintiffs assert in Claim Five, violates their rights to meaningful access to 28 counsel and the courts under the First, Fifth, Eighth, and Fourteenth Amendments. - 26 - 1 Prisoners have a constitutional right of access to the courts that is “adequate, effective, 2 and meaningful.” Bounds v. Smith, 430 U.S. 817, 822 (1977). However, this right 3 “guarantees no particular methodology but rather the conferral of a capability—the capability 4 of bringing contemplated challenges to sentences or conditions of confinement before the 5 courts.” Lewis v. Casey, 518 U.S. 343, 354 (1996). Consequently, an inmate who brings a 6 § 1983 claim based on his right of access to the courts must be able to show that the 7 infringing act somehow defeated his ability to pursue a legal claim. That is, a prisoner must 8 show he suffered an “actual injury” as a result of the defendant’s actions. Id. at 348-49. An 9 “actual injury” is “actual prejudice with respect to contemplated or existing litigation, such 10 as the inability to meet a filing deadline or to present a claim.” Id. at 348. The right of 11 access does not create “an abstract, freestanding right,” but exists to vindicate other rights. 12 Id. at 351. 13 Plaintiffs do not identify any specific legal claims that will be inhibited by the lack 14 of in-person access to counsel in the hours prior to a scheduled execution. Rather, they 15 speculate they will be unable to petition the courts for relief “if circumstances arise 16 immediately prior” to their executions indicating either incompetency for execution or cruel 17 and unusual punishment. However, Plaintiffs have not articulated how their ability to seek 18 redress in the courts is affected by the presence of ADC personnel near Plaintiffs’ holding 19 cell. Plaintiffs further speculate they will be unable to communicate privately because of a 20 possibility ADC personnel will overhear Plaintiffs’ side of a phone conversation. But this 21 speculation is highly improbable and insufficient to state a claim. Even eavesdropping by 22 ADC officers would not establish an inability to pursue a legal claim in the courts. 23 The cases cited by Plaintiffs are distinguishable. In Ching v. Lewis, the Ninth Circuit 24 held that a prisoner’s right of access to the courts includes contact visitation with his counsel. 25 895 F.2d 608, 610 (9th Cir. 1990) (per curiam). However, the court subsequently held in 26 Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir. 1993), that Arizona’s regulation prohibiting 27 high-risk inmates from having contact visits with their attorneys was a reasonable response 28 to the legitimate concern with preventing escape, assault, hostage-taking, and smuggling - 27 - 1 contraband. And in Cooey v. Strickland, the plaintiffs had no access to telephonic 2 communication with counsel, confidential or otherwise. See No. 2:04-cv-1156, 2011 WL 3 320166, at *7-10 (S.D. Ohio Jan. 28, 2011) (unpublished order). Here, ADC’s protocol 4 provides for unlimited telephonic contact. 5 Defendants assert that after 9:00 p.m. the evening before a scheduled execution, the 6 prisoner is prepared to be moved from a cell at the Eyman prison complex to the housing unit 7 at the Florence prison complex where the execution takes place. (Doc. 28 at 11.) According 8 to Defendants, staff members participating in various execution-related roles are present at 9 the Florence location and their identity is confidential. See Ariz. Rev. Stat. § 13-757(C) 10 (“The identity of executioners and other persons who participate or perform ancillary 11 functions in an execution and any information contained in records that would identify those 12 persons is confidential and is not subject to disclosure . . . .”). Although ADC has 13 historically permitted in-person visitation by counsel, this aspect of the protocol was changed 14 because “of increased concerns regarding the need to protect” the identities of persons 15 participating in the execution process. (Doc. 28 at 11.) This concern does not reflect on any 16 particular lawyer. Because ADC has a legitimate interest in maintaining confidentiality of 17 execution participants, the Court concludes that Plaintiffs have failed to show a substantial 18 likelihood of success on the merits of Claim Five. 19 II. Irreparable Harm, Balance of Equities, and Public Interest 20 Although there is a likelihood of irreparable harm in every § 1983 action challenging 21 a proposed method of execution, that factor alone is insufficient to warrant injunctive relief 22 where there is no significant possibility of success on the merits. In Hill v. McDonough, the 23 Court recognized the “important interest in the timely enforcement of a sentence” and 24 cautioned that federal courts “can and should protect States from dilatory or speculative 25 suits.” 547 U.S. at 584-85. Given the State’s “strong interest in enforcing its criminal 26 judgments without undue interference from the federal courts,” and because “the victims of 27 crime have an important interest in the timely enforcement of a sentence,” the Court 28 concludes that the balance of equities favors Defendants and that a stay of execution to - 28 - 1 resolve Plaintiffs’ speculative allegations is not in the public interest. Id. at 584. CONCLUSION 2 3 Plaintiffs have not demonstrated entitlement to injunctive relief. 4 Accordingly, 5 IT IS HEREBY ORDERED that Plaintiffs’ Emergency Motion for Temporary 6 7 Restraining Order or Preliminary Injunction (Doc. 19) is DENIED. DATED this 23rd day of February, 2012. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 29 -
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