West et al v. Brewer et al

Filing 23

ORDER - (1) Within 30 days of the date this Order is filed, Plaintiffs must either pay the $350.00 filing fee or each file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement. (2) Defendant' s Motion to Dismiss 11 is DENIED. (3) The parties shall confer as set forth herein and jointly file their Case Management Plan no later than July 29, 2011. (4) A scheduling conference will be held on Wednesday, August 3, 2011, at 9:00 a.m. in Courtroom 504, Sandra Day OConnor United States Courthouse. (See document for further details). Signed by Judge Neil V Wake on 7/20/11. (LAD)

Download PDF
1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 20 Thomas Paul West, Gregory Dickens, Charles M. Hedlund, Robert Wayne Murray, Theodore Washington, and Todd Smith, ) No. CV-11-01409-PHX-NVW ) ) ) ) Plaintiffs, ) ) vs. ) ORDER ) ) 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. ) ) 21 Plaintiffs are Arizona prisoners under sentence of death. On July 16, 2011, Plaintiffs 22 filed a civil rights complaint pursuant to 42 U.S.C. § 1983 seeking equitable, injunctive, and 23 declaratory relief. Plaintiff West also filed an emergency motion for a temporary restraining 24 order or a preliminary injunction to enjoin his execution. On July 17, 2011, Defendants filed 25 a response to the motion for injunctive relief and simultaneously requested dismissal of the 26 complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On July 19, 2011, Plaintiff 27 West was executed. 1 I. Payment of Filing Fee 2 When bringing an action, a prisoner must either pay the $350.00 filing fee in a lump 3 sum or, if granted the privilege of proceeding in forma pauperis, pay the fee incrementally 4 as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires 5 an affidavit of indigence and a certified copy of the inmate’s trust account statement for the 6 six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must 7 submit statements from each institution where he was confined during the six-month period. 8 Id. To assist prisoners in meeting these requirements, the Court requires use of a form 9 application. LRCiv 3.4(a). 10 If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an 11 initial partial filing fee of 20% of either the average monthly deposits or the average monthly 12 balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An initial 13 partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). The 14 balance of the fee will be collected in monthly payments of 20% of the preceding month’s 15 income credited to an inmate’s account, each time the amount in the account exceeds $10.00. 16 28 U.S.C. § 1915(b)(2). 17 In this case, Plaintiffs did not pay the $350.00 civil action filing fee, and only 18 Plaintiff West filed an Application to Proceed In Forma Pauperis. However, Plaintiff West 19 was executed prior to the Court issuing an order for the collection of the filing fee. 20 Accordingly, Plaintiffs will be permitted 30 days from the filing date of this Order to pay the 21 $350 filing fee or submit properly executed and certified Applications to Proceed In Forma 22 Pauperis. 23 II. Motion to Dismiss 24 To state a claim, Federal Rule of Civil Procedure 8(a)(2) requires “ a short and plain 25 statement of the claim showing that the pleader is entitled to relief,” in order to “give the 26 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 27 -2- 1 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 2 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not 3 need detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his 4 “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation 5 of the elements of a cause of action will not suffice. Id. (citing Papasan v. Allain, 478 U.S. 6 265, 286 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal 7 conclusion couched as a factual allegation”)). In other words, while Rule 8 does not demand 8 detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully- 9 harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “Threadbare 10 recitals of the elements of a cause of action, supported by mere conclusory statements, do not 11 suffice.” Id. 12 To survive a motion to dismiss, a complaint must contain sufficient factual matter, 13 accepted as true, to “state a claim to relief that is plausible on its face.” Id. Dismissal may 14 be based either on the lack of cognizable legal theories or the lack of pleading sufficient facts 15 to support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 16 (9th Cir. 1990). “The court is not required to accept legal conclusions cast in the form of 17 factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” 18 Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Nor must the court 19 accept unreasonable inferences or unwarranted deductions of fact. Western Mining Council 20 v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 21 In their complaint, Plaintiffs allege that the failure of the Arizona Department of 22 Corrections (ADC) to follow its written lethal injection protocol and ADC’s use of 23 pentobarbital in place of sodium thiopental create a substantial risk that they will suffer 24 unnecessary pain during execution, in violation of the Eighth Amendment. The Court found 25 no likelihood of success on the merits of this complaint when it denied Plaintiff West’s 26 motion for temporary injunctive relief. However, the question for a motion to dismiss is 27 -3- 1 whether Plaintiffs have alleged sufficient facts that, if true, state a plausible claim for relief. 2 A. Background 3 In 2007, Plaintiffs filed a § 1983 complaint challenging numerous aspects of 4 Arizona’s then-in-effect lethal injection protocol. That protocol was based on Department 5 Order 710, dated November 1, 2007, and as modified by an exhibit submitted by the parties 6 as part of a joint report to the Court. See Dickens v. Brewer, No. CV-07-1770-PHX-NVW, 7 2009 WL 1904294, at *1 & n.2 (D. Ariz. Jul. 1, 2009) (unpublished order). On July 1, 2009, 8 this Court granted summary judgment in favor of Defendants, concluding that Arizona’s 9 protocol was “substantially similar” to that approved by the Supreme Court in Baze v. Rees, 10 553 U.S. 35 (2008), and thus did not subject inmates to a substantial risk of serious harm in 11 violation of the Eighth Amendment. Id. On February 9, 2011, the Ninth Circuit Court of 12 Appeals affirmed. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). 13 The version of the protocol at issue in Dickens required sequential administration of: 14 (1) sodium thiopental, an ultra fast-acting barbiturate that induces unconsciousness; (2) 15 pancuronium bromide, a paralytic neuromuscular blocking agent that prevents any voluntary 16 muscle contraction; and (3) potassium chloride, which causes skeletal muscle paralysis and 17 cardiac arrest. On June 10, 2011, ADC formally amended Department Order 710 to provide 18 for the administration of sodium pentothal (thiopental) or pentobarbital as the first of the 19 three sequentially-administered drugs. (Doc. 1, Ex. C at Attach. F.) 20 B. Count One 21 Plaintiffs allege that ADC has substantially deviated from its lethal injection protocol 22 and thus there is a substantial risk that the anesthetic drug will not be properly administered, 23 causing serious harm. (Doc. 1 at 15.) Plaintiffs cite to five deviations: (1) failure to 24 adequately train the execution team using pentobarbital; (2) failure to legally obtain drugs 25 from a safe and reputable source; (3) use of the femoral vein as the default access site; (4) 26 failure to leave IV insertion sites uncovered during executions; and (5) the substitution of 27 -4- 1 pentobarbital for sodium thiopental. (Id. at 7-9, 13.) 2 In Dickens, the court upheld the constitutionality of Arizona’s lethal injection protocol 3 in part based on the lack of evidence suggesting ADC would not follow the protocol. The 4 court noted that “it is critical for Arizona to follow the procedures set forth in the Protocol 5 when conducting an execution” and that evidence of failure to adhere to past execution 6 procedures could cast doubt on Arizona’s ability or willingness to do so in the future. 7 Dickens, 631 F.3d at 1149. Assuming Plaintiffs’ allegations as true, the Court concludes that 8 he has set forth sufficient facts to survive a motion to dismiss. C. 9 Count Two 10 Plaintiffs allege that although pentobarbital is a barbiturate like sodium thiopental, 11 unlike sodium thiopental it is untested for use as an anesthetic and lacks a standard 12 recognized dosage for inducing anesthetic coma. (Doc. 1 at 5, 10-11.) Plaintiffs also assert 13 that the manufacturer of pentobarbital has warned that the drug is not intended as an 14 anesthetic. (Id. at 10, 15-16.) Therefore, according to Plaintiffs, there is a substantial risk 15 that pentobarbital, even if successfully injected, may not prevent needless pain and suffering. 16 (Id. at 11, 15.) Plaintiffs further allege, based on problems reported during executions in 17 Alabama and Georgia as well as the affidavit of Dr. David Waisel, that the consciousness 18 checks in Arizona’s protocol are insufficient to ensure unconsciousness prior to 19 administration of pancuronium bromide and potassium chloride. (Id. at 12-13, 16-17.) 20 It is uncontested that failing to proper anesthetize a prisoner before administering 21 pancuronium bromide and potassium chloride will result in a substantial, constitutionally 22 unacceptable risk of suffocation. Baze v. Rees, 553 U.S. 35, 53 (2008). Accepting Plaintiffs’ 23 allegations as true, which it must, the Court determines that Plaintiffs have stated a plausible 24 Eighth Amendment claim. 25 II. 26 Scheduling To expedite consideration of Plaintiffs’ claims and provide sufficient time for 27 -5- 1 discovery and briefing, the Court will hold a scheduling conference on Wednesday, August 2 3, 2011. The parties are directed to meet and confer before the Scheduling Conference, as 3 required by Federal Rule of Civil Procedure 26(f). At this Rule 26(f) Meeting, the parties 4 shall develop a joint Case Management Plan, which contains the following information in 5 separately numbered paragraphs: 6 1. A discussion of necessary discovery; 7 2. Proposed specific dates for each of the following (with deadlines falling on a 8 Friday unless impracticable): 9 a. A deadline for the completion of fact discovery1 and disclosure pursuant to Rule 26(a)(3); 10 b. 11 Dates for complete disclosures of expert testimony under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure;2 12 13 c. A deadline for completion of all expert depositions; 14 d. A deadline for filing dispositive motions; and 15 3. A discussion of proceeding to trial in lieu of dispositive motions. 16 The parties shall jointly file the Case Management Plan with the Clerk (e-file the Plan 17 using the Other Documents category and use the drop down event Report re: Rule 26(f) 18 19 20 21 22 23 24 25 26 27 1 The discovery deadline is the date by which all discovery must be completed. Discovery requests must be served and depositions noticed sufficiently in advance of this date to ensure reasonable completion by this deadline, including time to resolve discovery disputes. Absent extraordinary circumstances, the Court will not entertain discovery disputes after this deadline. 2 No expert witness not timely disclosed will be permitted to testify unless the party offering such witness demonstrates: (a) that the necessity of such expert witness could not have been reasonably anticipated at the time of the deadline for disclosing such expert witness; (b) the Court and opposing counsel or unrepresented party were promptly notified upon discovery of such expert witness; and (c) that such expert witness was promptly proffered for deposition. See Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). -6- 1 Planning Meeting) no later than July 29, 2011 (absent extraordinary circumstances, no 2 extensions of time will be granted). It is the responsibility of Plaintiffs to initiate the Rule 3 26(f) Meeting and preparation of the joint Plan. Defendants shall promptly and cooperatively 4 participate in the Rule 26(f) Meeting and assist in preparation of the proposed plan. 5 In preparing the joint Plan, the parties should take into account that the Court intends 6 to resolve this matter no later than December 16 and has tentatively set a bench trial for 7 October 11. At the scheduling conference, the Court intends to discuss efficacy of 8 proceeding to trial, including trial briefing, in lieu of dispositive motions. 9 Based on the foregoing, 10 IT IS HEREBY ORDERED: 11 (1) Within 30 days of the date this Order is filed, Plaintiffs must either pay the 12 $350.00 filing fee or each file a complete Application to Proceed In Forma Pauperis and a 13 certified six-month trust account statement. 14 (2) Defendant’s Motion to Dismiss (Doc. 11) is DENIED. 15 (3) The parties shall confer as set forth herein and jointly file their Case 16 17 18 19 Management Plan no later than July 29, 2011. (4) A scheduling conference will be held on Wednesday, August 3, 2011, at 9:00 a.m. in Courtroom 504, Sandra Day O’Connor United States Courthouse. DATED this 20th day of July, 2011. 20 21 22 23 24 25 26 27 -7-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?