Towery et al v. Brewer et al

Filing 42

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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Towery, et al.,
Plaintiffs,
vs.

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Janice K. Brewer, et al.,

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Defendants.

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No. CV-12-245-PHX-NVW
DEATH PENALTY CASE
ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION

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Before the Court is a motion for preliminary injunction filed by Plaintiffs Robert

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Towery and Robert Moormann, who are Arizona prisoners under sentence of death.1 (Doc.

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19.) Moormann is scheduled to be executed on Wednesday, February 29, 2012, and Towery

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is scheduled to be executed on Thursday, March 8, 2012. On February 6, 2012, Plaintiffs

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filed a complaint pursuant to 42 U.S.C. § 1983, challenging the manner and means by which

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the Arizona Department of Corrections (“ADC”) intends to execute condemned inmates by

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lethal injection. (Doc. 1.) An amended complaint was filed on February 10, and the instant

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motion was filed on February 14. (Docs. 8, 19.) The Court held a preliminary injunction

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hearing on February 22 and has also considered the complaint, the motion, and all responsive

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pleadings. This order states the Court’s findings of fact and conclusions of law. For the

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reasons that follow, the Court denies the motion for stay of execution.

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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.

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BACKGROUND

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The facts underlying Plaintiffs’ convictions and capital sentences are detailed in the

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Arizona Supreme Court’s appellate decisions and will not be repeated here. See State v.

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Towery, 186 Ariz. 168, 174, 920 P.2d 290, 296 (1996); State v. Moormann, 154 Ariz. 578,

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744 P.2d 679 (1987). Because Plaintiffs committed their crimes before November 23, 1992,

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under Arizona law they have the choice to be executed by either lethal injection or lethal gas.

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See Ariz. Rev. Stat. § 13-757(B). According to the complaint, Plaintiffs have declined to

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choose. Consequently, ADC must use lethal injection to execute them. Id.

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In 2007, a group of Arizona death row prisoners filed a § 1983 complaint challenging

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numerous aspects of Arizona’s then-in-effect lethal injection protocol.2 That protocol was

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based on Department Order 710, dated November 1, 2007, and as modified by an exhibit

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submitted by the parties as part of a joint report to the Court. See Dickens v. Brewer, No.

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CV-07-1770-PHX-NVW, 2009 WL 1904294, at *1 & n.2 (D. Ariz. Jul. 1, 2009)

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(unpublished order). This Court granted summary judgment in favor of Defendants,

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concluding that Arizona’s protocol was “substantially similar” to that approved by the

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Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), and thus did not subject inmates to a

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substantial risk of serious harm in violation of the Eighth Amendment. The Ninth Circuit

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Court of Appeals affirmed. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011).

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The version of the protocol at issue in Dickens required sequential administration of:

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(1) sodium thiopental (pentothal), an ultra fast-acting barbiturate that induces

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unconsciousness; (2) pancuronium bromide, a paralytic neuromuscular blocking agent that

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prevents any voluntary muscle contraction; and (3) potassium chloride, which causes skeletal

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muscle paralysis and cardiac arrest. “It is uncontested that, failing a proper dose of sodium

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thiopental that would render [a] prisoner unconscious, there is a substantial, constitutionally

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unacceptable risk of suffocation from the administration of pancuronium bromide and pain

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from the injection of potassium chloride.” Baze, 553 U.S. at 53.

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None of the Plaintiffs in this matter were parties to that litigation.
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In October 2010, on the eve of his execution, Arizona prisoner Jeffrey Landrigan filed

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a § 1983 complaint describing a nationwide shortage of sodium thiopental and alleging that

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ADC had imported the drug from a non-FDA-approved foreign manufacturer. The district

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court granted a temporary restraining order to permit further discovery regarding efficacy of

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the drug. Landrigan v. Brewer, No. CV-10-2246-PHX-ROS, 2010 WL 4269559 (D. Ariz.

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Oct. 25, 2010) (unpublished order). The Supreme Court reversed, noting that there was “no

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evidence in the record to suggest that the drug obtained from a foreign source is unsafe” and

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“no showing that the drug was unlawfully obtained.” Brewer v. Landrigan, 131 S. Ct. 445

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(2010) (Mem.).

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Subsequently, Arizona prisoner Daniel Cook filed a complaint similar to that of

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Landrigan, alleging an unconstitutional risk of serious pain from use of non-FDA approved

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sodium thiopental. The district court dismissed the complaint, finding that it failed to

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sufficiently state a claim for relief. Cook v. Brewer, No. CV-10-2454-PHX-RCB, 2011 WL

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251470 (D. Ariz. Jan. 26, 2011) (unpublished order). The Ninth Circuit affirmed and noted

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that Arizona’s protocol contains safeguards that would prevent the administration of the

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second and third drugs if the prisoner were not sufficiently anesthetized. Cook v. Brewer,

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637 F.3d 1002, 1007-08 (9th Cir. 2011) (Cook I). Based on newly-discovered evidence

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surrounding the foreign-manufactured sodium thiopental and ADC’s acquisition thereof,

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Cook refiled a complaint on the eve of his execution. The district court summarily dismissed

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the complaint, and the Ninth Circuit affirmed. Cook v. Brewer, No. CV-11-557-PHX-RCB,

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2011 WL 1119641 (D. Ariz. Mar. 28, 2011) (unpublished order), aff’d, 649 F.3d 915 (9th

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Cir.) (Cook II), cert. denied, 131 S. Ct. 2465 (2011).

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On May 24, 2011, the night before the scheduled execution of Arizona prisoner

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Donald Beaty, ADC notified Beaty and the Arizona Supreme Court that it intended to

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

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remaining aspects of the lethal injection protocol would be followed. In this notice, ADC

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also stated that the change was necessitated by information it had received that day from the

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United States Department of Justice, indicating that ADC’s supply of sodium thiopental was
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imported without compliance with the Controlled Substances Act and could not be used.

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Beaty filed a § 1983 complaint, asserting a due process violation from insufficient

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notice and arguing that a last-minute drug substitution would make it impossible for ADC

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to comply with the protocol’s training requirement, thus subjecting him to a substantial risk

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of pain and suffering. This Court denied injunctive relief, concluding that the lack of

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practice with pentobarbital was insufficient to demonstrate a risk of serious harm in light of

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the protocol’s safeguards ensuring the prisoner’s anesthetization prior to administration of

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pancuronium bromide and potassium chloride. Beaty v. Brewer, 791 F.Supp.2d 678, 684 (D.

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Ariz. 2011). The Ninth Circuit affirmed. Beaty v. Brewer, 649 F.3d 1071 (9th Cir.), cert.

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denied, 131 S. Ct. 2929 (2011).

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On June 10, 2011, ADC amended Department Order 710 to provide for the

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administration of sodium thiopental or pentobarbital as the first of the three sequentially-

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administered drugs in its lethal injection protocol.

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On July 15, 2011, Thomas West, along with the plaintiffs in Dickens, filed a § 1983

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complaint challenging ADC’s implementation of its lethal injection protocol. Specifically,

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the plaintiffs alleged that ADC’s failure to follow its written protocol and addition of

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pentobarbital created a substantial risk of unnecessary pain and violated their rights to due

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process and equal protection. West also sought emergency injunctive relief to enjoin his

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impending execution, which was denied. See West v. Brewer, CV-11-1409-PHX-NVW,

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2011 WL 2836754 (D. Ariz. Jul. 18, 2011) (unpublished order), aff’d, 652 F.3d 1060 (9th

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Cir.), cert. denied, 131 S. Ct. 3092 (2011). Thereafter, this Court denied a motion for

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summary dismissal and ordered expedited discovery.

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Following a bench trial in December 2011, the Court entered judgment against the

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West plaintiffs, finding no constitutional infirmities from ADC’s implementation of its lethal

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injection protocol. West v. Brewer, No. CV-11-1409-PHX-NVW, 2011 WL 6724628 (D.

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Ariz. Dec. 21, 2011) (unpublished order), appeal docketed, No. 12-15009 (9th Cir. Jan. 3,

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2012).

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deviations—default use of a femoral central intravenous (“IV”) line; failure to conduct

In particular, the Court determined that none of the complained-of

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required background checks of the IV team members, document their qualifications, and

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ensure IV-setting as part of their current professional duties; and failure to affix multiple

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labels on syringes and accurately document disposal of unused drugs—created a substantial

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risk the plaintiffs would be improperly anesthetized or otherwise suffer needless suffering

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and severe pain. The Court noted that ADC Director Charles L. Ryan has “discretion to

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deviate from the written protocol when safety, security, or medical issues in individual

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circumstances require temporary deviation from the written protocol.” Id. at *11. However,

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the Court further observed that the written protocol should reflect actual practice and should

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be amended if “ADC no longer intends to follow the protocol as currently written.” Id.

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On January 25, 2012, ADC again amended Department Order 710 (“the January 2012

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Protocol”). The revised protocol permits execution using either a three-drug or one-drug

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protocol and requires ADC’s director to choose between these two protocols at least seven

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days prior to a scheduled execution. Ariz. Dep’t Corr., Dep’t Order 710, § 710.01, ¶ 1.1.2.4

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& Attach. D, § C.1 (Jan. 25, 2012) (hereinafter “DO 710 (Jan. 2012)”). The protocol further

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directs that the director, upon consultation with the IV team leader, shall determine the

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catheter sites and that a central femoral venous line may not be utilized unless placed by a

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medically-licensed physician with relevant experience. DO 710 (Jan. 2012), § 710.02, ¶

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1.2.5.4 & Attach. D, § E.1.

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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.”
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Ariz. Dep’t Corr., Dep’t Order 710, Attach. D, § B.1 (Sept. 12, 2011) (hereinafter “DO 710

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(Sept. 2011)”). In addition, the revised protocol requires IV team members to participate in

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“at least one training session with multiple scenarios within one day prior to a scheduled

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execution” rather than ten execution “rehearsals” annually as previously required. DO 710

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(Jan. 2012), §§ 710.02, ¶ 1.1.2, 710.02, ¶ 1.2.5.5; DO 710 (Sept. 2011), Attach. D, § B.5.

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Finally, the revised protocol permits only telephonic contact between an inmate and his

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attorney after 9:00 p.m. the night before a scheduled execution, whereas previously counsel

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were permitted unlimited non-contact visitation. DO 710 (Jan. 2012), § 710.11, ¶ 1.5; DO

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710 (Sept. 2011), § 710.09, ¶ 1.5.
DISCUSSION

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In their complaint, Plaintiffs allege that ADC’s revised protocol impermissibly

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eliminates safeguards, increases the ADC director’s discretion, and codifies arbitrary and

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disparate treatment of capital prisoners, in violation of the Eighth and Fourteenth

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Amendments. Plaintiffs further allege constitutional violations from ADC’s intent to execute

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them using the three-drug protocol, including use of pancuronium bromide imported from

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a foreign source, instead of the one-drug option. Finally, Plaintiffs allege that the January

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2012 Protocol violates their due process right to notice concerning the specific drugs and

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venous access to be used during execution and their right of access to counsel and the courts.

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Plaintiffs have moved for a preliminary injunction to enjoin their execution to allow for

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litigation of these claims.

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A preliminary injunction is “an extraordinary and drastic remedy, one that should not

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be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek

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v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted). An injunction may

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be granted only where the movant shows that “he is likely to succeed on the merits, that he

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is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

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equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural

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Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Beardslee v. Woodford, 395 F.3d

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1064, 1067 (9th Cir. 2005). Under the “serious questions” version of the sliding-scale test,
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a preliminary injunction is appropriate when a plaintiff demonstrates that “serious questions

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going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s

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favor.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)

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(citation omitted). This approach requires that the elements of the preliminary injunction test

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be balanced, so that a stronger showing of one element may offset a weaker showing of

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another. “‘[S]erious questions going to the merits’ and a balance of hardships that tips

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sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the

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plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is

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in the public interest.” Id.

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

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

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

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

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

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

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undue interference from the federal courts.” Id. at 584.

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I.

Likelihood of Success

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A.

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Plaintiffs allege in Claim Two of their complaint that the January 2012 Protocol is

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facially invalid under the Eighth Amendment because it lacks safeguards necessary to reduce

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a substantial risk of pain and suffering from implementation of the three-drug protocol.

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Specifically, Plaintiffs allege that the following are required to sustain constitutionality of

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Arizona’s protocol: (1) IV team members must have “current” professional experience

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setting IV lines; (2) IV team members must be medically trained; (3) IV team members must

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attend more than one training session on the day before an execution and must practice siting

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IVs during training; (4) there must be a time limitation for finding and setting IV catheters;

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and (5) the IV team must establish both a primary and a back-up IV line. (Doc. 8 at 21.)

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Lack of Necessary Safeguards

The Eighth Amendment “prohibits punishments that involve the unnecessary and
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wanton inflictions of pain, or that are inconsistent with evolving standards of decency that

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

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2004).

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

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man.” Beardslee v. Woodford, 395 F.3d at 1070 (internal citations omitted). A violation of

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the Eighth Amendment can be established by demonstrating there is a “substantial risk of

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serious harm” that is sure or very likely to cause pain and needless suffering. Dickens v.

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Brewer, 631 F.3d at 1144-46 (adopting Baze plurality); see also Brewer v. Landrigan, 131

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S. Ct. at 445. The risk must be an “‘objectively intolerable risk of harm’ that prevents prison

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officials from pleading that they were ‘subjectively blameless for purposes of the Eighth

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Amendment.’” Baze, 553 U.S. at 50 (citing Farmer v. Brennan, 511 U.S. 825, 842 (1994)).

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In their motion for injunctive relief, Plaintiffs argue that during the Dickens litigation

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ADC amended its protocol to add safeguards that made it substantially similar to the

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Kentucky protocol upheld in Baze in order to win on summary judgment and that elimination

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of these provisions puts the January 2012 Protocol outside the Baze safe harbor. In the recent

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West litigation, however, this Court explained that during the Dickens litigation ADC had

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“mooted some aspects of Plaintiffs’ facial challenge by promising to follow a written

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protocol that was amended to closely conform to the protocol approved in Baze.” West, 2011

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WL 6724628, at *11. The Court further noted that whether “any of the amendments were

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constitutionally required was not adjudicated.” Id. Thus, there has been no determination

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that the specific provisions of the protocol litigated in Dickens were constitutionally

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mandated, and the issue here is not whether the Eighth Amendment is offended by the fact

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ADC has again amended its lethal injection procedures. Rather, the question is whether there

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exists a “risk of pain from maladministration” under the newly revised protocol. Baze, 553

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U.S. at 41; see also Dickens, 631 F.3d at 1150 (“If Arizona amends the Protocol to modify

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the current safeguards, Dickens—or another affected death row inmate—may be able to

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challenge the constitutionality of the amended protocol.”).

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That prohibition necessarily applies to the punishment of death, precluding

In considering Plaintiffs’ Eighth Amendment challenge to the January 2012 Protocol,
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the Court is guided by the Supreme Court’s observation in Baze that “[s]ome risk of pain is

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inherent in any method of execution—no matter how humane—if only from the prospect of

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error in following the required procedure.” 553 U.S. at 47. A risk of future harm can qualify

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as cruel and unusual punishment only if the conditions presenting the risk are sure or very

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likely to cause serious illness and needless suffering, and give rise to sufficiently imminent

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dangers. Id. at 49-50 (citations omitted). “Simply because an execution method may result

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in pain, either by accident or as an inescapable consequence of death, does not establish the

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sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” under the

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Eighth Amendment. Id. at 50.

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Plaintiffs argue that the January 2012 Protocol “allows minimally qualified or

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incompetent personnel to conduct executions” because it no longer requires that the IV Team

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members have medical training, have current experience setting IVs, or be personally

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interviewed before being selected to participate in an execution. (Doc. 8 at 12, 21.)

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Plaintiffs also take issue with Arizona’s failure to require the IV Team to conduct ten training

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sessions per year, as previously mandated, and failure to include setting IV lines on

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volunteers as part of the IV Team’s training, a provision also absent from the protocol upheld

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in Dickens.

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qualification requirements for members of the IV Team by eliminating altogether any

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requirement that such persons be “qualified.” (Doc. 19 at 5.) Defendants disagree and assert

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they modified the protocol to reflect the practice this Court found constitutional in West.

In Plaintiffs’ view, the January 2012 Protocol significantly lowers the

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In West, the Court had to determine whether deviations between the written protocol

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and ADC’s practice in choosing members of the IV Team rose to an Eighth Amendment

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violation. In doing so, the Court found that ADC’s deviation from the “current experience”

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requirement—that Medical/IV Team members have one year of current experience in their

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assigned execution-related duties—was reasonable in light of both the difficulty in locating

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qualified individuals and the IV Team’s extensive past experience:

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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
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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.

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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.

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West, 2011 WL 6724628, at *13. Based on this Court’s determination that both MTM-IV

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and MTL were qualified to serve on the IV Team despite the lack of current experience,

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ADC amended its protocol to remove the “current” experience requirement. In doing so,

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however, they made two other changes of significance here: permitting any “appropriately

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trained personnel” (not just “medically trained”) to serve on the IV Team and eliminating the

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necessity that an IV Team member’s one year of relevant experience be “professional”

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experience. The question for this Court is whether the revised protocol, on its face, takes

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Arizona outside of Baze’s safe harbor. The Court concludes that it does not.

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In Baze, the Court found that Kentucky had “put in place several important safeguards

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to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner.”

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553 U.S. at 55. It noted that the “most significant” of these is the requirement that members

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of the IV team have “at least one year of professional experience as a certified medical

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assistant, phlebotomist, EMT, paramedic, or military corpsman.” Id. Although the Court

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noted that Kentucky “currently uses a phlebotomist and an EMT, personnel who have daily

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experience establishing IV catheters for inmates in Kentucky’s prison population,” the Court

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did not affirmatively state that “current” experience was constitutionally mandated. Id.; see

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also Nooner v. Norris, 594 F.3d 592, 605 & n.7 (8th Cir. 2010) (noting that “most

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significant” Kentucky safeguard to Baze plurality was requirement IV team have at least one

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year of professional experience, not that they insert catheters on a daily basis). The Court

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also observed that members of Kentucky’s IV team participated in at least ten practice
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sessions per year, including the siting of IV catheters into volunteers, but again did not

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affirmatively hold that this level of training was constitutionally mandated. Id. at 55.

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Under Arizona’s revised protocol, only physicians, physician assistants, nurses,

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emergency medical technicians, paramedics, military corpsmen, phlebotomists, “or other

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appropriately trained personnel” with “at least one year of relevant experience in placing

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either peripheral or central femoral intravenous lines” may serve on the IV Team. DO 710

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(Jan. 2012), § 710.02, ¶ 1.2.5.1. The protocol further provides that IV Team members will

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be selected by ADC’s director after “review of the proposed team member’s qualifications,

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training, experience, and/or any professional license(s) and certification(s) they may hold”

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and that ADC’s Inspector General’s Office shall conduct licensing and criminal history

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reviews prior to assigning or retaining any IV Team member and upon issuance of a warrant

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of execution. Id. at ¶ 1.2.5.2. In addition, the revised protocol requires IV Team members

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to participate in at least one training session “with multiple scenarios” within one day of a

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scheduled execution. Id. at ¶ 1.1.2.

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At bottom, Plaintiffs’ claim rests on speculation that ADC will enlist unqualified

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personnel to serve on the IV Team under the catch-all “other appropriately trained personnel”

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category. In response to this Court’s questioning about the scope of the term “appropriately

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trained,” counsel for Defendants acknowledged at the preliminary injunction hearing that the

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training qualifications for such individuals would be no less than what is required of

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individuals licensed to perform intravenous procedures. In addition to the “appropriately

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trained” requirement, the director’s discretion in selecting IV Team members is

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circumscribed by the requirement that IV Team members have at least one year of experience

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placing either peripheral or central intravenous lines. With regard to the latter, the revised

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protocol requires that only medically-licensed physicians with relevant experience insert

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femoral central lines (and that a current licensing review be conducted prior to a scheduled

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execution); Plaintiffs’ allegation that the protocol “allows unqualified individuals to insert

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central, femoral lines” ignores this clear mandate. (Doc. 30 at 11.)

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In West, the Court observed that the Eighth Amendment does not require the
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participation of licensed medical professionals in lethal injection executions. West, 2011 WL

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6724628, at *13. In his Baze concurrence, Justice Alito observed that numerous medical

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professional associations, including the American Medical Association, the American Nurses

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Association, and the National Association of Emergency Medical Technicians, have ethical

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proscriptions against participation in executions. Baze, 553 U.S. at 64-66 (Alito, J.,

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concurring). This then creates a dilemma for departments of corrections who are charged

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with enlisting qualified personnel to place IVs for execution by lethal injection. Although

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Arizona law protects the identity of those involved in executions and directs that no licensing

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board may suspend or revoke a member’s license due to participation in an execution, see

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Ariz. Rev. Stat. § 13-757, there is still a risk of ostracization if someone’s identity were

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inadvertently revealed as well as the possibility of having to participate in depositions and

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testify in court, as occurred in the West litigation.

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Arizona has revised its protocol to eliminate the requirement that IV Team members

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set IVs as part of their current employment and to broaden the scope of personnel who may

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be selected to include those who are “appropriately trained” even if not a physician,

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physician’s assistant, nurse, emergency medical technician, paramedic, military corpsman,

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or phlebotomist. This may be less restrictive than standards adopted by other states.

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However, the protocol on its face requires that IV Team members be appropriately trained

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to place IVs and have at least one year of experience setting IVs. The Court finds that this

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is sufficient, when combined with the numerous other safeguards addressed below, to

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ameliorate the risk a prisoner will not be sufficiently anesthetized. Moreover, this Court

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presumes ADC’s director will properly discharge his official duties when selecting IV team

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members, Bracy v. Gramley, 520 U.S. 899, 909 (1997), and nothing in ADC’s execution

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history suggests otherwise. In sum, the mere possibility an unqualified person may be

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selected to serve on the IV Team does not demonstrate a risk of substantial harm. See Baze,

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553 U.S. at 50 (“Simply because an execution method may result in pain, either by accident

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or as an inescapable consequence of death, does not establish the sort of ‘objectively

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intolerable risk of harm’ that qualifies as cruel and unusual.”). The Court also notes that
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Director Ryan has informed Plaintiffs here that for their impending executions ADC “has a

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qualified IV Team in place. The Inspector General has completed all necessary background

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checks on all of the IV Team members, and all of these team members meet the qualifications

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specified in the protocol.” (Doc. 16-1 at 31.)

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Plaintiffs also complain that IV Team members are not required to have experience

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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

For the foregoing reasons, the Court concludes that Plaintiffs have failed to establish
a substantial likelihood of success on Claim One.

18

C.

19

According to the complaint, Director Ryan has notified Plaintiffs that ADC intends

20

to execute them using the three-drug protocol and that the second drug, pancuronium

21

bromide, was obtained from a foreign source. In Claim Three, Plaintiffs allege that use of

22

foreign-obtained pancuronium bromide will subject them to a risk of pain and suffering

23

because foreign-sourced drugs do not have FDA approval. Plaintiffs further allege their

24

equal protection rights are violated by Director Ryan’s “arbitrary decision to select a protocol

25

and a drug that increases the risk of harm without any compelling or legitimate interest.”

26

(Doc. 8 at 23.)

27

Administration of Three-Drug Protocol with Imported Pancuronium
Bromide

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

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).

10

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.

11

Id. at 1074; see also Powell v. Thomas, No. 2:11-CV-376-WKW, 2011 WL 1843616, at *10

12

(M.D. Ala. May 16, 2011) (finding no authority for proposition that condemned inmate has

13

due process right to notice and opportunity to be heard regarding substitution of

14

pentobarbital), aff’d, 641 F.3d 1255 (11th Cir.), cert. denied, 131 S. Ct. 2487 (2011). If

15

notice of a drug substitution less than twenty-four hours before an execution failed to state

16

a sufficiently meritorious due process claim warranting injunctive relief in Beaty, this Court

17

concludes that Plaintiffs have failed to show any likelihood of success on the due process

18

claims raised here.

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First, Plaintiffs have not shown any credible risk that notice of the lethal chemical

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protocol only seven days prior to an execution may lead to cruel and unusual punishment.

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Plaintiffs do not dispute that a one-drug protocol is constitutional, acknowledging that “use

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of a barbiturate-only protocol would eliminate the risk of substantial pain that would occur

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if pancuronium bromide and potassium chloride were administered to an improperly

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anesthetized prisoner.” (Doc. 8 at 8.) In addition, the Court has separately determined that

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there is no likelihood of success on Plaintiffs’ claim that “significant departures” in the

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January 2012 Protocol create a substantial risk of serious harm from administration of the

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three-drug protocol. Although an inmate will not know which protocol will be applied until

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at least a week before a scheduled execution, the details of both the one-drug and three-drug

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protocols are set forth in Department Order 710 and may be challenged at any time. Indeed,

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Claim Two of the instant complaint alleges Arizona’s revised three-drug protocol is facially

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invalid even though not all of the plaintiffs in this action are under warrant of execution and

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have not been notified by ADC which protocol will be used in their executions.

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Second, Plaintiffs have not shown any credible risk that lack of notice regarding

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intravenous siting may lead to cruel and unusual punishment. In Baze, the Court held that

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“a condemned prisoner cannot successfully challenge a State’s method of execution merely

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by showing a slightly or marginally safer alternative.” 553 U.S. at 51. “To qualify, the

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alternative procedure must be feasible, readily implemented, and in fact significantly reduce

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a substantial risk of severe pain.” Id. at 52. Plaintiffs do not allege any facts to support the

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inference that the risk of pain and suffering during a lethal injection execution changes

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substantially based on the siting of the intravenous access, and this Court has expressly

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rejected the claim that use of a femoral central line causes constitutionally unacceptable pain

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and suffering. See West, 2011 WL 6724628, at *17-18. Therefore, the Court finds no right

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to notice and an opportunity to be heard as to intended placement of IV lines before an

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

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

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Given the lack of authority and facts to support Plaintiffs’ alleged procedural due

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process violations, the Court finds they have failed to establish a likelihood of success on the

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merits of these claims.

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E.

Access to Counsel and Courts

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The January 2012 Protocol precludes in-person legal visitation after 9:00 p.m. the day

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prior to a scheduled execution, instead permitting only telephonic contact with attorneys of

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record. Plaintiffs allege such calls will take place in a holding cell where ADC officers will

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be present and thus there will be no opportunity for “privileged communication.” This

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restriction, Plaintiffs assert in Claim Five, violates their rights to meaningful access to

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counsel and the courts under the First, Fifth, Eighth, and Fourteenth Amendments.
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Prisoners have a constitutional right of access to the courts that is “adequate, effective,

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and meaningful.” Bounds v. Smith, 430 U.S. 817, 822 (1977). However, this right

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“guarantees no particular methodology but rather the conferral of a capability—the capability

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of bringing contemplated challenges to sentences or conditions of confinement before the

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courts.” Lewis v. Casey, 518 U.S. 343, 354 (1996). Consequently, an inmate who brings a

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§ 1983 claim based on his right of access to the courts must be able to show that the

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infringing act somehow defeated his ability to pursue a legal claim. That is, a prisoner must

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show he suffered an “actual injury” as a result of the defendant’s actions. Id. at 348-49. An

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“actual injury” is “actual prejudice with respect to contemplated or existing litigation, such

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as the inability to meet a filing deadline or to present a claim.” Id. at 348. The right of

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access does not create “an abstract, freestanding right,” but exists to vindicate other rights.

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Id. at 351.

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Plaintiffs do not identify any specific legal claims that will be inhibited by the lack

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of in-person access to counsel in the hours prior to a scheduled execution. Rather, they

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speculate they will be unable to petition the courts for relief “if circumstances arise

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immediately prior” to their executions indicating either incompetency for execution or cruel

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and unusual punishment. However, Plaintiffs have not articulated how their ability to seek

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redress in the courts is affected by the presence of ADC personnel near Plaintiffs’ holding

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cell. Plaintiffs further speculate they will be unable to communicate privately because of a

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possibility ADC personnel will overhear Plaintiffs’ side of a phone conversation. But this

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speculation is highly improbable and insufficient to state a claim. Even eavesdropping by

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ADC officers would not establish an inability to pursue a legal claim in the courts.

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The cases cited by Plaintiffs are distinguishable. In Ching v. Lewis, the Ninth Circuit

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held that a prisoner’s right of access to the courts includes contact visitation with his counsel.

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895 F.2d 608, 610 (9th Cir. 1990) (per curiam). However, the court subsequently held in

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Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir. 1993), that Arizona’s regulation prohibiting

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high-risk inmates from having contact visits with their attorneys was a reasonable response

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to the legitimate concern with preventing escape, assault, hostage-taking, and smuggling
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contraband.

And in Cooey v. Strickland, the plaintiffs had no access to telephonic

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communication with counsel, confidential or otherwise. See No. 2:04-cv-1156, 2011 WL

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320166, at *7-10 (S.D. Ohio Jan. 28, 2011) (unpublished order). Here, ADC’s protocol

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provides for unlimited telephonic contact.

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Defendants assert that after 9:00 p.m. the evening before a scheduled execution, the

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prisoner is prepared to be moved from a cell at the Eyman prison complex to the housing unit

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at the Florence prison complex where the execution takes place. (Doc. 28 at 11.) According

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to Defendants, staff members participating in various execution-related roles are present at

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the Florence location and their identity is confidential. See Ariz. Rev. Stat. § 13-757(C)

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(“The identity of executioners and other persons who participate or perform ancillary

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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

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historically permitted in-person visitation by counsel, this aspect of the protocol was changed

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because “of increased concerns regarding the need to protect” the identities of persons

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participating in the execution process. (Doc. 28 at 11.) This concern does not reflect on any

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particular lawyer. Because ADC has a legitimate interest in maintaining confidentiality of

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execution participants, the Court concludes that Plaintiffs have failed to show a substantial

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likelihood of success on the merits of Claim Five.

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II.

Irreparable Harm, Balance of Equities, and Public Interest

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Although there is a likelihood of irreparable harm in every § 1983 action challenging

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a proposed method of execution, that factor alone is insufficient to warrant injunctive relief

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where there is no significant possibility of success on the merits. In Hill v. McDonough, the

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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

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

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

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concludes that the balance of equities favors Defendants and that a stay of execution to
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resolve Plaintiffs’ speculative allegations is not in the public interest. Id. at 584.
CONCLUSION

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Plaintiffs have not demonstrated entitlement to injunctive relief.

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs’ Emergency Motion for Temporary

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Restraining Order or Preliminary Injunction (Doc. 19) is DENIED.
DATED this 23rd day of February, 2012.

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