Towery et al v. Brewer et al

Filing 81

ORDER: Plaintiffs' 69 Emergency Motion for Discovery and Preservation of Evidence is DENIED. See order for complete details. Signed by Judge Neil V Wake on 5/30/12. (NKS)

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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.,

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Plaintiffs,

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vs.
Janice K. Brewer, et al.,
Defendants.

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No. CV-12-00245-PHX-NVW
DEATH PENALTY CASE
ORDER DENYING MOTION FOR
DISCOVERY AND PRESERVATION
OF EVIDENCE

Less than 24 hours before the scheduled May 16 execution of Samuel Lopez,

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Plaintiffs (excluding Lopez) filed a motion asking this Court to order the Arizona

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Department of Corrections (“ADC”) to allow Plaintiffs’ attorneys to witness the

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intravenous (“IV”) procedure during Lopez’s execution. (Doc. 69.) Subsequently, the

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Arizona Supreme Court vacated Lopez’s May 16 warrant and issued a new warrant of

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execution for June 27. The Court has considered the motion, Defendants’ response,

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Plaintiffs’ reply, and the brief of amicus curiae First Amendment Coalition of Arizona,

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Inc. The motion will be denied for the reasons that follow.

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DISCUSSION
As a preliminary matter, it must be noted the instant motion is not timely.

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Plaintiffs initiated this action on February 6, 2012, and filed a second amended complaint

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on April 19, following the executions of Robert Moormann and Robert Towery.

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Nonetheless, the motion was not filed until the day before Lopez’s scheduled May 16

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execution, despite Plaintiffs citing difficulties with IV placement during Towery’s

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execution as additional grounds of support in their amended complaint. The fortuity of

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Lopez’s execution being postponed until June 27 has provided the Court some additional

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time to consider the issues raised herein, but not much. Responsive briefing just

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concluded on May 29. Accordingly, this order has been expedited.

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Rule 26 of the Federal Rules of Civil Procedure provides that “[f]or good cause,

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the court may order discovery of any matter relevant to the subject matter involved in the

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action.” Fed. R. Civ. P. 26(b)(1). However, discovery requests may be limited when the

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material sought “can be obtained from some other source” or “the burden or expense of

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the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(i), (iii).

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“Broad discretion is vested in the trial court to permit or deny discovery.” Hallett v.

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Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citing Goehring v. Brophy, 94 F.3d 1294,

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1305 (9th Cir. 1996)).

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Plaintiffs assert that they could potentially discover evidence or information that

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will help litigate their claims if they are permitted to witness the insertion of IV lines

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during Lopez’s execution. The motion is based on “serious concerns” regarding

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Towery’s execution, most notably that the IV Team spent almost a full hour placing

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working primary and secondary IV lines and that Towery allegedly requested to speak

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with counsel during the IV procedure. Defendants counter that Plaintiffs have access to

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discovery to pursue their claims that does not necessitate the presence of counsel during

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an execution. Plaintiffs disagree, asserting that ADC’s execution logs are insufficient to

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demonstrate whether the prisoner suffered pain and that this information is necessary to

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resolve the claims raised in this lawsuit.

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In its order denying Lopez’s motion for preliminary injunction, the Court rejected

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Lopez’s claim that his right of access to counsel and the courts would be violated if

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counsel did not witness the IV-placement procedure. In doing so, the Court observed that

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repeated attempts to place an IV line do not raise a per se claim of cruel and unusual

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punishment. The Ninth Circuit affirmed. Lopez v. Brewer, No. 12-16084, 2012 WL

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1693926, at *8 (May 15, 2012) (finding no abuse of discretion in denying request to have
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counsel observe IV-placement procedure). Plaintiffs assert that this finding has no

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bearing on the present issue because they are not arguing that repeated attempts are per se

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unconstitutional. (Doc. 80 at 5 n.6.) However, Plaintiffs further assert that “there is some

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point at which a protracted or sloppy IV insertion exceeds constitutional safeguards” and

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therefore they are entitled to the requested discovery. (Id. at 5.)

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To establish a violation of the Eighth Amendment’s prohibition against cruel and

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unusual punishment, a prisoner must demonstrate there is a “substantial risk of serious

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

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Rees, 553 U.S. 35, 50 (2008). “Simply because an execution method may result in pain,

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

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of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Id. As

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explained in the order denying injunctive relief to Lopez, repeated punctures in IV-

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placement attempts are not uncommon, either during executions or therapeutic medicine,

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and do not result in the type of pain prohibited by the Eighth Amendment. Thus, even

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were Lopez to experience some level of pain during placement of the primary and

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secondary IV lines, this would be insufficient to establish a risk of cruel and unusual

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punishment to Plaintiffs.

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Amicus curiae argue that Plaintiffs’ discovery motion must be granted to vindicate

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the First Amendment right of the public and press to view executions from the moment

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the condemned is escorted into the execution chamber. However, the rules of discovery

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do not substitute for substantive rights, and Plaintiffs have not asserted a violation of the

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First Amendment in their complaint.

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IT IS THEREFORE ORDERED that Plaintiffs’ Emergency Motion for
Discovery and Preservation of Evidence (Doc. 69) is DENIED.
DATED this 30th day of May, 2012.

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