Beaty v. Brewer, et al

Filing 9

ORDER denying 1 Motion for Temporary Restraining Order or Preliminary Injunction. Signed by Judge Neil V Wake on 5/25/11.(MAP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15
16
17
18

Donald Beaty,

)
)
Plaintiff,
)
)
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.
)
)
)

No. CIV 11-1037-PHX-NVW
DEATH PENALTY CASE

ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER
OR PRELIMINARY INJUNCTION

19

This matter is before the Court for consideration of Plaintiff Donald Edward Beaty’s

20

emergency motion for a temporary restraining order or a preliminary injunction. (Doc. 1.)

21

Plaintiff Beaty, an Arizona inmate under sentence of death, is scheduled to be executed

22

today, May 25, 2011, at 10:00 a.m. Yesterday, May 24, 2011, at 9:05 p.m., he filed in this

23

Court the instant motion.1 Respondents filed a response at 1:45 a.m. this morning, and

24
25
26
27
28

1

Plaintiff also filed a motion in the Arizona Supreme Court requesting that court
to vacate the warrant of execution or grant a stay. Subsequently, at approximately 10:45
p.m., the Arizona Supreme Court granted a temporary stay of execution and set Plaintiff’s
case for oral argument at 9:30 a.m. today. Pursuant to Rule 31.17(c)(3) of the Arizona Rules
of Criminal Procedure, a warrant of execution is valid for twenty-four hours beginning at an
hour designated by the director of the state department of corrections. In this case, that hour

1

several hours later Plaintiff filed a reply as well as a complaint pursuant to 42 U.S.C. § 1983

2

and an application to proceed in forma pauperis. (Docs. 3-7.) The complaint alleges that the

3

manner and means by which the Arizona Department of Corrections (ADC) intends to

4

execute him will violate his Eighth Amendment right to be free from cruel and unusual

5

punishment and his Fourteenth Amendment right to due process. The Court has considered

6

the pleadings and Plaintiff’s complaint. For the reasons that follow, the Court denies

7

Plaintiff’s motion for a temporary stay of execution.

8

BACKGROUND

9

The facts underlying Plaintiff’s 1985 conviction and death sentence for the murder of

10

13-year-old Christy Ann Fornoff are detailed in the Arizona Supreme Court’s decision on

11

direct appeal and will not be repeated here. See State v. Beaty, 158 Ariz. 232, 236, 762 P.2d

12

519, 524 (1988). Because Plaintiff committed his crime before November 23, 1992, under

13

Arizona law he has the choice to be executed by either lethal injection or lethal gas. See

14

A.R.S. § 13-757(B). According to his complaint, Plaintiff declined to choose. Consequently,

15

ADC must use lethal injection to execute him. Id.

16

In 2007, Plaintiff and several other Arizona condemned inmates filed a § 1983

17

complaint challenging numerous aspects of Arizona’s then-in-effect lethal injection protocol.

18

That protocol—which requires sequential administration of sodium thiopental, pancuronium

19

bromide, and potassium chloride for execution by lethal injection—was based on Department

20

Order 710, titled “Preparation and Administration of Chemicals,” dated November 1, 2007,

21

and as modified by an exhibit submitted by the parties as part of a joint report to the Court.

22
23
24
25
26
27
28

began at 10:00 a.m. this morning. Thus, if the Arizona Supreme Court ultimately denies
Plaintiff’s motion at some point today, this Court assumes Defendants would not be
prohibited from rescheduling Plaintiff’s execution prior to 10:00 a.m. tomorrow, May 26.
Accordingly, and in the interests of expediency, this Court proceeds to address Petitioner’s
motion for injunctive relief, despite the temporary stay currently in effect. The Court further
notes that the parallel motion before the Arizona Supreme Court may draw upon that court’s
plenary and supervisory power. The motion before this court may be granted only upon a
showing of the federal substantive and procedural requirements discussed in this order.
-2-

1

See Dickens v. Brewer, No. CIV-07-1770-PHX-NVW, 2009 WL 1904294 at *1 & n.2 (D.

2

Ariz. Jul. 1, 2009) (unpublished order). On July 1, 2009, this Court granted summary

3

judgment in favor of Defendants, concluding that Arizona’s three-drug protocol was

4

“substantially similar” to that approved by the Supreme Court in Baze v. Rees, 553 U.S. 35

5

(2008), and thus did not subject inmates to a substantial risk of serious harm in violation of

6

the Eighth Amendment. Id. On February 9, 2011, the Ninth Circuit Court of Appeals

7

affirmed. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). The appellate court’s mandate

8

issued on April 18, 2011.

9

At approximately 4:00 p.m. on Tuesday, May 24, 2011, less than 24 hours before

10

Plaintiff’s scheduled execution, ADC filed in Plaintiff’s case at the Arizona Supreme Court

11

a “Notice of Substitution of Drug.” (Doc. 2, Ex. G.) The notice states that ADC intends to

12

substitute pentobarbital for sodium thiopental in carrying out Plaintiff’s execution but that

13

Arizona’s lethal injection protocol will otherwise remain the same as used in prior

14

executions. (Id. at 1.) The notice further states that Arizona’s protocol authorizes ADC’s

15

Director to make such a change and that the drug was obtained domestically. (Id.) Finally

16

the notice, and a subsequently filed errata to the notice, indicates that on this same day (May

17

24), a United States Associate Deputy Attorney General contacted the Arizona Attorney

18

General’s Office requesting that the sodium thiopental ADC imported from a foreign source

19

not be used in Plaintiff’s May 25 execution because the Drug Enforcement Administration

20

believes ADC failed to fill out one of the forms necessary for importation of the drug. (Id.

21

at 2; Doc. 2, Ex. H.)

22

DISCUSSION

23

In his § 1983 complaint, Plaintiff alleges that ADC’s last-minute substitution of

24

pentobarbital violates his right to be free from cruel and unusual punishment under the

25

Eighth Amendment and his right to due process under the Fourteenth Amendment.

26

Plaintiff has moved for a temporary restraining order or a preliminary injunction to

27

enjoin his execution and to allow for litigation of these claims. The standard for issuing a

28

temporary restraining order is essentially the same as that for issuing a preliminary
-3-

1

injunction. To be entitled to injunctive relief, a movant must demonstrate (1) that he is likely

2

to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of

3

preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction

4

is in the public interest. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374, 376

5

(2008); National Meat Ass’n v. Brown, 599 F.3d 1093, 1097 (9th Cir. 2010); see also

6

Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir. 2005). The burden of persuasion is

7

on the movant, who must make “a clear showing.” Mazurek v. Armstrong, 520 U.S. 968, 972

8

(1997) (per curiam).

9

In the context of a capital case, the Supreme Court has emphasized that these

10

principles apply when a condemned prisoner asks a federal court to enjoin his impending

11

execution because “[f]iling an action that can proceed under § 1983 does not entitle the

12

complainant to an order staying an execution as a matter of course.” Hill v. McDonough, 547

13

U.S. 573, 583-84 (2006). Rather, “a stay of execution is an equitable remedy” and “equity

14

must be sensitive to the State’s strong interest in enforcing its criminal judgments without

15

undue interference from the federal courts.” Id. at 584. In addition, “[a] court may consider

16

the last-minute nature of an application to stay execution in deciding whether to grant

17

equitable relief.” Beardslee, 395 F.3d at 1068 (quoting Gomez v. United States District

18

Court, 503 U.S. 653, 654 (1991)). Thus, courts “must consider not only the likelihood of

19

success on the merits and the relative harms to the parties, but also the extent to which the

20

inmate has delayed unnecessarily in bringing the claim.” Id. (quoting Nelson v. Campbell,

21

541 U.S. 637, 649-50 (2004)).

22

I.

Likelihood of Success

23

In his motion for injunctive relief, Plaintiff asserts that a last-minute drug substitution

24

will make it impossible for ADC to comply with the training requirement of Arizona’s lethal

25

injection protocol. Without the “safeguard of training,” Plaintiff argues his right to be free

26

from cruel and unusual punishment under the Eighth Amendment will be violated because

27

there is a substantial risk the anesthetic drug will not be properly administered. Plaintiff

28

further asserts he has a right to reasonable notice of changes to Arizona’s lethal injection
-4-

1

protocol so that he can review and attempt to challenge them. Here, according to Plaintiff,

2

ADC’s failure to timely notify him of the drug substitution violates his right to due process

3

under the Fourteenth Amendment because he lacks sufficient time to review the protocol

4

change, as well as his medical records, to determine whether there are any constitutional

5

concerns with the new drug.

6

A.

7

The Eighth Amendment “prohibits punishments that involve the unnecessary and

8

wanton inflictions of pain, or that are inconsistent with evolving standards of decency that

9

mark the progress of a maturing society.” Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th Cir.

Alleged Eighth Amendment Violation

10

2004).

11

executions that “involve torture or a lingering death, or do not accord with the dignity of

12

man.” Beardslee, 395 F.3d at 1070. A violation of the Eighth Amendment can be

13

established by demonstrating there is a risk of harm that is “sure or very likely to cause

14

serious illness and needless suffering.” Helling v. McKinney, 509 U.S. 25, 33, 34 (1993).

15

In other words, there must be a “substantial risk of serious harm.” Farmer v. Brennan, 511

16

U.S. 825, 842 (1994).

That prohibition necessarily applies to the punishment of death, precluding

17

In Baze v. Rees, the Supreme Court held that Kentucky’s method of execution by

18

lethal injection was consistent with the Eighth Amendment. The decision encompassed

19

seven separate opinions involving three blocks of Justices. In Ventura v. State, 2 So.3d 194,

20

200 (Fla. 2009), the Florida Supreme Court observed that the Baze plurality:

21

26

adopted a version of the substantial-risk standard, while Justice Breyer,
concurring in the judgment, and Justices Ginsburg and Souter, dissenting,
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.

27

Id. at 199-200 (citations and footnotes omitted). In response to Justice Stevens’s suggestion

28

that the plurality opinion leaves the disposition of other cases uncertain, Chief Justice

22
23
24
25

-5-

1
2
3
4
5
6

Roberts wrote:
[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).

7

The ADC’s Department Order 710 “establishes procedures for planning and carrying

8

out the execution of a person convicted of a capital offense and sentenced to death.”

9

Department Order 710 provides:

10
11

These procedures shall be followed as written unless deviation or adjustment
is required, as determined by the Arizona Department of Corrections
(Department). This Department Order outlines internal procedures and does
not create any legally enforceable rights or obligations.

12
As currently written, the protocol requires sequential administration of: (1) sodium
13
thiopental, a ultra fast-acting barbiturate that induces unconsciousness; (2) pancuronium
14
bromide, a paralytic neuromuscular blocking agent that prevents any voluntary muscle
15
contraction; and (3) potassium chloride, which causes skeletal muscle paralysis and cardiac
16
arrest. “It is uncontested that, failing a proper dose of sodium thiopental that would render
17
[a] prisoner unconscious, there is a substantial, constitutionally unacceptable risk of
18
suffocation from the administration of pancuronium bromide and pain from the injection of
19
potassium chloride.” Baze, 553 U.S. at 53.
20
Arizona’s written protocol notwithstanding, ADC has notified Plaintiff, less than 24
21
hours prior to his scheduled execution, that it intends to substitute pentobarbital for sodium
22
thiopental in its lethal injection protocol. Plaintiff argues that this last-minute substitution
23
means the State cannot comply with the training requirements of its protocol and thus there
24
is a substantial risk of serious harm that the anesthetic drug will not be properly administered
25
if his execution proceeds as scheduled. The protocol’s training requirements mandate that
26
all execution medical team members understand and practice the lethal injection procedures,
27
including inserting the IV catheters, ensuring the IV line is functioning properly throughout
28
-6-

1

the procedure, mixing the chemicals, preparing the syringes, monitoring the inmate’s level

2

of consciousness, and supervising the administration of the chemicals.

3

In their response, Defendants assert that the task of administering pentobarbital in

4

place of sodium thiopental constitutes only a “minor variation” in the protocol that does not

5

require retraining of the execution medical team. Defendants further cite cases from

6

Oklahoma and Alabama that have rejected Eighth Amendment challenges to the substitution

7

of pentobarbital for sodium thiopental. See Powell v. Thomas, No. 11-12238, 2011 WL

8

1899564 (11th Cir.), cert. denied, No. 10-10589, 2011 WL 1894851 (U.S. May 19, 2011);

9

Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010), cert. denied, 131 S. Ct. 974 (2011). In

10

reply, Plaintiff cites the deposition of Defendants’ expert in Dickens v. Brewer, Dr. Mark

11

Dershwitz, who explained that preparation of pentobarbital would be more complicated than

12

that of sodium thiopental because it comes in tiny syringes and approximately 50 of these

13

would have to be mixed to constitute the five grams required by the protocol. (Deposition

14

of Mark Dershwitz, M.D., Dec. 9, 2008, 173:5-8, Dickens v. Brewer, No. CIV-07-1770-

15

PHX-NVW, Doc. 109-1 at 45.)

16

The Court is sympathetic to Plaintiff’s arguments and is troubled by the timing of both

17

the Department of Justice’s request that ADC’s sodium thiopental not be used in Plaintiff’s

18

execution and the ADC’s decision to substitute pentobarbital. However, to show a likelihood

19

of success on the merits of his Eighth Amendment claim, Plaintiff must demonstrate that the

20

substitution of pentobarbital creates a “demonstrated risk of severe pain.” Baze, 553 U.S. at

21

61. This he has not done.

22

First, Plaintiff has not alleged that use of pentobarbital in place of sodium thiopental

23

will cause him serious pain or fail to sufficiently anesthetize him. He does not dispute

24

Respondents’ assertion that pentobarbital is, like sodium thiopental, a fast-acting barbiturate.

25

Indeed, both the Tenth and Eleventh Circuits have found that use of pentobarbital does not

26

create a substantial risk of serious harm. See Powell, 2011 WL 1899564, at *2; Pavatt, 627

27

F.3d at 1340. In addition, pentobarbital has been used either singularly or as a substitute for

28
-7-

1

sodium thiopental in executions in Mississippi, Ohio, South Carolina, and Texas.2

2

Second, although Plaintiff correctly notes that ADC’s medical execution team did not

3

learn until yesterday of the drug substitution and thus likely did not practice preparing

4

syringes with pentobarbital, this fact alone in insufficient to make a “clear showing” of likely

5

success on the merits. This is because Arizona’s protocol has significant safeguards in place

6

to ensure that a prisoner is fully anesthetized prior to administration of pancuronium bromide

7

and potassium chloride.

8

As noted by this Court in Dickens, although electronic monitors may be used to

9

measure brain activity, physical examination such as stroking a patient’s eyelashes to look

10

for reflex and monitoring his breathing pattern is as good or better for assessing the depth of

11

anesthesia. 2009 WL 1904294, at *12. To this end, the Arizona protocol:

12
13
14
15
16
17
18
19
20

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

21
2

22
23
24
25
26
27
28

See Mississippi Executes Man with New Lethal Injection Cocktail, USA Today
(May 10, 2011 9:14 PM), http://www.usatoday.com/news/nation/2011-05-10-mississippiexecution-drug_n.htm; Jeffrey Motts becomes 1st S.C. Inmate Executed with New Lethal Mix,
Greenville
Online.com
(May
6,
2011
2:00
AM),
http://www.greenvilleonline.com/article/20110506/NEWS/305070001/Jeffrey-Motts-bec
omes-1st-S-C-inmate-executed-with-new-lethal-mix; Texas Executes First Inmate Using
Drug Used on Animals, Reuters (May 4, 2011 9:18 AM),
http://www.reuters.com/article/2011/05/04/us-texas-execution-idUSTRE74300F20110504;
Ohio Executes Inmate with New Death-Penalty Drug, Washington Times (Mar. 10, 2011
12:56 PM), http://www.washingtontimes.com/news/2011/mar/10/ohio-executesinmate-new-death-penalty-drug/.
-8-

1

5

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.

6

Id. at *21. If it appears that a prisoner is not fully anesthetized, the protocol prohibits the

7

administration of any further drugs. Given these safeguards, there is very little risk that

8

Plaintiff would suffer unnecessary pain in the event execution team members fail to properly

9

prepare the pentobarbital syringes. See Cook v. Brewer, 637 F.3d 1002, 1007-08 (9th Cir.

10

2011), cert. denied, No. 10-9824, 2011 WL 1258192 (U.S. May 16, 2011) (rejecting claim

11

of substantial risk of pain from administration of allegedly incorrect, diluted or adulterated

12

anesthetic in light of consciousness check prior to administration of other two drugs); see

13

also Dickens, 631 F.3d at 1141 (stating that Arizona protocol’s safeguards are adequate

14

under Baze standard).

2
3
4

15

Finally, in concluding that Plaintiff has failed to establish a likelihood of success on

16

the merits, the Court observes that any risk of mistake from the execution medical team’s

17

lack of practice using pentobarbital is speculative and fails to rise to the level required to

18

demonstrate a substantial risk of serious harm under Eighth Amendment jurisprudence. See

19

Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994) (“The risk of accident cannot and need

20

not be eliminated from the execution process in order to survive constitutional review.”).

21

Furthermore, “an isolated mishap alone does not give rise to an Eighth Amendment violation,

22

precisely because such an event, while regrettable, does not suggest cruelty or that the

23

procedure at issue gives rise to a ‘substantial risk of serious harm.’” Baze, 553 U.S. at 50

24

(plurality opinion) (quoting Farmer, 511 U.S. at 842).

25

B.

26

To establish a procedural due process violation, Plaintiff must show that (1) he had

27

a property or liberty interest that was interfered with by Defendants, and (2) Defendants

28

failed to use constitutionally sufficient procedures in depriving Plaintiff of that right.

Alleged Due Process Violation

-9-

1

Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989). “[A]n individual

2

claiming a protected interest must have a legitimate claim of entitlement to it. Protected

3

liberty interests ‘may arise from two sources – the Due Process Clause itself and the laws of

4

the States.’” Id. (citing Hewitt v. Helms, 459 U.S. 460, 466 (1983)).

5

Plaintiff has not alleged that Arizona law creates an enforceable liberty interest.

6

Indeed, as the Court explained in Dickens, Arizona’s lethal injection protocol is not

7

statutory—it is issued by ADC and sets out technical procedures for carrying out lethal

8

injection. Rules made by ADC are exempted from the general rule-making provisions of the

9

Administrative Procedures Act. See A.R.S. § 41-1005(A)(23).

10

In Dickens, this Court observed that “[t]here appears to be no dispute that each

11

Plaintiff is entitled to notice of any amendment to the Arizona Protocol if the amendment will

12

be in effect for the Plaintiff’s execution.” 2009 WL 1904294, at * 23 n.9. For this

13

proposition, the Court cited Oken v. Sizer, 321 F.Supp. 2d 658, 664 (D. Md. 2004), in which

14

that court stated: “Fundamental fairness, if not due process, requires that the execution

15

protocol that will regulate an inmate’s death be forwarded to him in prompt and timely

16

fashion.” In Oken, the court stayed the plaintiff’s execution and required the defendants to

17

produce the state’s recently-amended execution protocol, explaining that “[d]ue process

18

requires . . . an opportunity to receive notice of how one’s rights will be affected and

19

opportunity to respond and be heard.” Id. at 665.

20

In his motion for injunctive relief, Plaintiff relies on Oken in support of his assertion

21

that he has a right to reasonable notice of protocol changes so that he can ensure such

22

changes comport with constitutional requirements. However, this Court cannot rely on one

23

district court’s unsupported assertion that capital plaintiffs have such a due process right,

24

especially in view of the fact that the United States Supreme Court vacated the stay of

25

execution granted by the district court in Oken. See Sizer v. Oken, 542 U.S. 916 (2004).

26

Moreover, other than the district court order in Oken, Plaintiff cites no authority to

27

support his allegation that the Due Process Clause provides a right to review protocol

28

changes and attempt to challenge them. Other courts to address this issue have found no such
- 10 -

1

authority. See Clemons v. Crawford, 585 F.3d 1119, 1129 n.9 (8th Cir. 2009) (noting lack

2

of authority indicating due process right to probe into backgrounds of execution personnel);

3

Powell v. Thomas, No. 2:11-CV-376-WKW, 2011 WL 1843616 at *10 (M.D. Ala. May 16,

4

2011) (finding no authority for proposition that condemned inmate has due process right to

5

receive notice and an opportunity to be heard regarding substitution of pentobarbital).

6

Given the lack of authority to support Plaintiff’s procedural due process violation, the

7

Court finds that he has failed to establish a likelihood of success on the merits of that claim

8

to notice. Moreover, even assuming Plaintiff is entitled to some measure of notice of the

9

drug substitution, rights to notice are in service of protecting substantive rights. Plaintiff has

10

not shown any credible prospect that the notice 18 hours prior to his scheduled execution

11

may lead to cruel and unusual punishment. There is no prospect that pentobarbital in general

12

is an insufficient anesthetic, and Plaintiff does not contend it is. This case comes down to

13

an attempted constitutionalization of the planned regimen for practice by staff, with nothing

14

but guessing that staff lack the judgment and skill to administer the pentobarbital in this case.

15

The nearly failsafe protections in the protocol against proceeding without full anesthetization,

16

as summarized in this order, make both the short notice and the speculations about staff

17

training meaningless as to protecting Plaintiff from pain. The Court concludes that any

18

challenge to the use of pentobarbital would likely fail to establish a substantial risk of

19

unnecessary pain.

20

II.

Irreparable Harm

21

The Court also concludes that Plaintiff has not shown that he is likely to suffer

22

irreparable harm in the absence of a stay. Plaintiff asserts that he is at risk of suffering pain

23

if the pentobarbital does not adequately anesthetize him. However, as already discussed, the

24

mere fact that medical team members have not practiced using pentobarbital fails to establish

25

a substantial risk of harm. See Lambert v. Buss, 498 F.3d 446, 452 (7th Cir. 2007) (finding

26

no irreparable harm from “mere possibility” unforeseen complication will cause unnecessary

27

pain). Moreover, the risk of harm is substantially mitigated by the safeguards outlined above

28

that will ensure Plaintiff is fully anesthetized before the second and third drugs are
- 11 -

1

administered.

2

III.

Balance of Equities & Public Interest

3

Plaintiff murdered Christy Ann Fornoff over twenty-five years ago. In Hill v.

4

McDonough, the Supreme Court recognized the “important interest in the timely enforcement

5

of a sentence” and cautioned that federal courts “can and should protect States from dilatory

6

or speculative suits.” 547 U.S. at 584-85. Given the State’s “strong interest in enforcing its

7

criminal judgments without undue interference from the federal courts,” and because “the

8

victims of crime have an important interest in the timely enforcement of a sentence,” the

9

Court concludes that the balance of equities favors Defendants and that a stay of execution

10

to resolve Plaintiff’s speculative allegations is not in the public interest. Id. at 584.

11

CONCLUSION

12

Plaintiff has not demonstrated entitlement to injunctive relief.

13

Accordingly,

14

IT IS HEREBY ORDERED that Plaintiff’s Emergency Motion for Temporary

15
16

Restraining Order or Preliminary Injunction (Doc. 1) is DENIED.
DATED this 25th day of May, 2011.

17
18
19
20
21
22
23
24
25
26
27
28
- 12 -