Wood et al v. Ryan et al

Filing 117

ORDER that Defendants' motion to dismiss (Doc. 98 ) is granted with prejudice as to the following claims in Plaintiffs' Second Amended Complaint: Claim 1 (in part): First Amendment right to know efficacy of midazolam. Claim 2: Substantive due process claim against use of paralytic. Claims 3 and 4: First Amendment claims to information about the execution. Claim 5: First Amendment right of access to courts. Claim 8: Class of one equal protection violation. FURTHER ORDERED that Defenda nts' motion to dismiss (Doc. 98 ) is denied as to the following claims in Plaintiffs' Second Amended Complaint: Claim 1 (in part): Eighth Amendment claim as to midazolam and paralytic. Claim 6: Eighth Amendment claim for failure to follow protocol. Claim 7: Procedural due process claim for failure to follow protocol. FURTHER ORDERED that Plaintiff First Amendment Coalition of Arizona, Inc., is dismissed from this action with prejudice, as any amendment would be futile. FURTHER ORDER ED that Plaintiffs' unopposed request for judicial notice of the 1992 General Election Arizona Publicity Pamphlet (Doc. 100 ) is granted. FURTHER ORDERED: (1) that Defendants shall file an answer to Plaintiffs' Second Amended Complaint no later than Friday, 05/27/16. (2) that initial disclosures shall be served no later than Wednesday, 06/08/16. (3) that the parties shall file a joint proposed Discovery Plan pursuant to Federal Rule of Civil Procedure 26(f) no later than Friday, 06/24/16. (4) that a Scheduling Conference pursuant to Federal Rule of Civil Procedure 16 is set for Wednesday, 06/29/16, at 1:30 PM in Courtroom 504, Sandra Day O'Connor U.S. Courthouse, 401 West Washington Street, Phoenix, Arizona 85003. See order for complete details. Signed by Judge Neil V. Wake on 5/18/16. (NKS)

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Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 1 of 27 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 First Amendment Coalition of Arizona, Inc.; Charles Michael Hedlund; Graham S. Henry; David Gulbrandson; Robert Poyson; Todd Smith; Eldon Schurz; and Roger Scott, 11 14 15 16 17 ORDER Plaintiffs, 12 13 No. CV-14-01447-PHX-NVW v. Charles L. Ryan, Director of ADC; James O’Neil, Warden, ASPC – Eyman; Greg Fizer, Warden, ASPC – Florence; and Does 1-10, Unknown ADC Personnel, in their official capacities as Agents of ADC, Defendants. 18 19 20 This action challenges Arizona’s way of executing death row inmates. Before the 21 court is Defendants’ motion to dismiss Plaintiffs’ second amended complaint, argued on 22 April 7, 2016. (Doc. 98.) The motion will be granted in part and denied in part. 23 Plaintiffs are seven Arizona death row inmates and the First Amendment Coalition 24 of Arizona, Inc., a non-profit corporation made of news organizations dedicated to free 25 speech, accountable government, and public participation in civic affairs. (Doc. 97, ¶ 26 10.) The second amended complaint raises eight claims under 42 U.S.C. § 1983. (Doc. 27 97.) Plaintiffs challenge Arizona’s execution process and its “lack of transparency,” 28 including the use of a paralytic agent in the three-drug lethal injection protocol, on First Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 2 of 27 1 Amendment, Eighth Amendment, due process, and equal protection grounds. (Id. at 3.) 2 The defendants are the Director of the Arizona Department of Corrections and two 3 wardens. They will be referred to as “the Department” or “the State,” the entities 4 answerable for their actions. They move to dismiss the complaint pursuant to Rule 5 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which 6 relief can be granted. 7 8 I. A motion to dismiss is a challenge to the legal sufficiency of the plaintiff’s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 LEGAL STANDARD pleadings. Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint need include “only enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). On such a motion, all allegations of material fact are assumed to be true and construed in the light most favorable to the non-moving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, that does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The details of the complaint must permit the court to infer more than a 24 mere possibility of conduct for which the law gives a remedy. Id. If the plaintiff’s 25 pleadings fall short of this standard, dismissal is warranted. 26 27 28 II. BACKGROUND Arizona law requires execution by lethal injection for capital crimes committed -2- Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 3 of 27 1 after 2000, A.R.S. § 13-757(A), which “shall be administered under such procedures and 2 supervision as prescribed by law.” Ariz. Const. art. XXII § 22. In fact, nothing in the 3 Arizona Revised Statutes or the Arizona Code of Regulations states any other substantive 4 standards or procedural requirements for executions. The Department states its protocols 5 in a Departmental Order which, though generally written in mandatory language, allows 6 the Department to deviate anytime in any way it thinks necessary. 7 A. 8 The execution procedures of the Arizona Department of Corrections are set forth 9 in Department Order 710, which became effective on October 23, 2015. (Doc. 98, Ex. 10 A.) Department Order 710 allows four lethal injection protocols: two one-drug protocols 11 using pentobarbital or sodium pentothal (Protocols A and B) and two three-drug 12 protocols, one using midazolam as a sedative (Protocol C) and one using sodium 13 pentothal (Protocol D). Protocols C and D both use a paralytic as the second drug, to be 14 administered before the final drug, potassium chloride. At issue in this litigation is 15 Protocol C, which consists of (1) 500 mg of midazolam, (2) 100 mg of vecuronium 16 bromide, rocuronium bromide, or pancuronium bromide, and (3) 240 mEq of potassium 17 chloride. Arizona’s Current Execution Procedures 18 In three-drug lethal injection protocols such as Protocol C, the first drug is 19 intended to produce a state of unconsciousness such that the prisoner is insensate to pain 20 that would be caused by the later drugs. See Glossip v. Gross, 135 S. Ct. 2726, 2741 21 (2015). 22 movements and, by paralyzing the diaphragm, stops respiration.” Baze v. Rees, 553 U.S. 23 35, 44 (2008). The third drug “interferes with the electrical signals that stimulate the 24 contractions of the heart, inducing cardiac arrest.” Id. “It is uncontested that, failing a 25 proper dose of [the first drug] that would render the prisoner unconscious, there is a 26 substantial, constitutionally unacceptable risk of suffocation from the administration of 27 pancuronium bromide and pain from the injection of potassium chloride.” Id. at 53. The second drug “is a paralytic agent that inhibits all muscular-skeletal 28 -3- Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 4 of 27 1 Midazolam is a sedative in the benzodiazepine family of drugs. (Doc. 97, ¶ 135.) 2 Arizona, along with other states, included midazolam in its lethal injection protocol when 3 the barbiturates sodium thiopental and pentobarbital became unavailable. (Id., ¶¶ 32–38.) 4 5 B. Recent Changes to and Deviations from Arizona’s Execution Procedures 6 Although Department Order 710 establishes execution procedures, the first 7 paragraph retains discretion to deviate from the procedures whenever deemed necessary. 8 The clause states: 9 10 11 12 These procedures shall be followed as written unless deviation or adjustment is required, as determined by the Director of the Arizona Department of Corrections (Department). This Department Order outlines internal procedures and does not create any legally enforceable rights or obligations. 13 (Doc. 98, Ex. A at 002.) This clause was not included in the version of Department 14 Order 710 effective November 5, 2004, Dickens v. Brewer, 07-CV-01770-NVW, Doc. 15 108-1 at 26, but similar provisions have been included since at least 2008, id. at 2. 16 In recent history, the Department has deviated from its published execution 17 procedures in ways ranging from minor to fundamental. It has successfully defended 18 litigation in district court based on the Protocol as written but then deviated before the 19 execution. It has changed its Protocol at oral argument in the court of appeals, showing 20 the litigation in district court was hypothetical, to get a favorable ruling from which to 21 negotiate with the court of appeals about what it really will do. It has deviated in the 22 course of an execution without explanation. 23 In 2007, the State sought a warrant of execution for Jeffrey Landrigan. (Doc. 97, 24 ¶¶ 50–51.) While the application for the warrant was pending, several inmates filed a 25 complaint challenging the lethal injection procedures then in effect. Dickens v. Brewer, 26 07-CV-01770-NVW. During that litigation, the Department amended its protocol twice 27 after conducting discovery. (Doc. 97, ¶ 52.) The Department agreed to amend its 28 protocol to address the concerns plaintiffs raised. The court ultimately granted summary -4- Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 5 of 27 1 judgment for the Department, finding that when considering the Department’s averments 2 and promises in its briefing and oral argument, the protocol was substantially similar to 3 that upheld in Baze. (Id.) 4 The State again sought a warrant of execution for Landrigan. (Id., ¶ 53.) The 5 Department’s protocol still prescribed a three-drug combination with sodium thiopental 6 as the first chemical. (Id.) By this time, however, the vendors relucted and a nationwide 7 shortage of sodium thiopental developed. 8 provenance of the drug it intended to use except to confirm that it was not manufactured 9 by Hospira, the only FDA-approved domestic manufacturer. (Id., ¶¶ 54–55.) The district 10 court granted a temporary stay of execution to allow Landrigan to challenge the use of 11 non-FDA-approved sodium thiopental, Landrigan v. Brewer, 10-CV-2246-ROS, Doc. 21, 12 and the Ninth Circuit affirmed. (Doc. 97, ¶ 56.) The Supreme Court then vacated the 13 stay, and Landrigan was executed. 14 Department continued to inject additional doses of backup chemicals into his body until 15 the physician-executioner warned that further injections could rupture his vena cava. 16 (Id.) (Id.) The Department refused to disclose the After Landrigan was declared dead, the 17 Following Landrigan’s execution, the Ninth Circuit heard oral argument in 18 Dickens. 631 F.3d 1139 (9th Cir. 2011). The record included testimony that a medical 19 team member responsible for carrying out executions “knowingly ‘improvised’ the doses 20 of lethal injection drugs, adhered to no set protocol, and kept no records of procedures.” 21 Id. at 1147. 22 deficiencies in its protocol had been cured and that it was purely speculative to believe 23 that they would not follow their procedures in the future. (Doc. 97, ¶ 59.) During oral argument, however, the Department contended that any 24 Eric King’s execution took place in March 2011. (Id., ¶ 61.) After the three-drug 25 combination was administered, however, King was injected with an additional dose of 26 both potassium chloride and sodium thiopental. (Id.) No consciousness check was 27 performed before the additional dosages were administered. (Id., ¶ 131.) 28 Donald Beaty’s execution was set for May 25, 2011. (Id., ¶ 62.) Eighteen hours -5- Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 6 of 27 1 before it was to begin, the Department notified Beaty that it would substitute sodium 2 thiopental with pentobarbital. (Id.) The Arizona Supreme Court permitted the execution 3 to proceed, based on the State’s avowal that the only change was the drug substitution. 4 (Id.) Justice Hurwitz dissented, observing that Beaty’s application was occasioned “by 5 the State’s last-minute decision to substitute one barbiturate for another, and we have 6 been compelled to address this issue literally overnight.” (Id.) 7 The State executed Richard Bible in June 2011 and scheduled Thomas West’s 8 execution for July 19, 2011. (Id., ¶¶ 63–64.) Three days before West’s execution, 9 several inmates filed a lawsuit charging that the Department would not follow its written 10 protocol. West v. Brewer, 11-CV-1409-NVW. Specifically, the plaintiffs alleged that the 11 Department failed to conduct required trainings, failed to obtain drugs from a safe and 12 reputable source, and failed to administer drugs through peripheral instead of femoral 13 lines. (Doc. 97, ¶ 64.) The court denied the request to enjoin West’s execution. The 14 Ninth Circuit affirmed, relying specifically on counsel’s representations that the protocol 15 adopted during the Dickens litigation would be followed. (Id., ¶ 65.) West was executed, 16 but the litigation filed on his behalf (among others) proceeded. After discovery and trial, 17 the court denied relief. (Id., ¶ 66.) 18 One month later, the Department adopted a new lethal injection protocol, which 19 spurred another lawsuit by inmates scheduled for execution. Towery v. Brewer, 12-CV- 20 00245-NVW. 21 members, placement of IV lines, and inmates’ access to counsel on the morning of their 22 execution. (Doc. 97, ¶ 68.) The Court denied relief and the inmates appealed. (Id., 23 ¶ 69.) The Ninth Circuit scheduled oral argument for 4:00 p.m. on February 27, 2012. 24 (Id.) Five hours before oral argument, the Department notified the plaintiffs that it 25 intended to change the method of execution to one dose of pentobarbital because the 26 pancuronium bromide it intended to use had expired six weeks before. (Id., ¶ 70.) Questions were raised regarding the qualifications of execution team 27 During oral argument, the Department shifted course and made several 28 representations on how the protocol would be changed to ensure team members were -6- Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 7 of 27 1 qualified and that IV lines were properly placed. (Id., ¶ 71.) The Department also agreed 2 to allow inmates access to counsel on the morning of their executions. (Id.) The Ninth 3 Circuit affirmed the denial of relief based on the representations of counsel during oral 4 argument. (Id., ¶ 72.) Robert Towery was executed on March 8, 2012. (Id., ¶ 74.) A private autopsy 5 6 7 8 9 10 11 12 13 revealed that he was punctured at least eleven times in an attempt to locate a vein. (Id., ¶ 77.) Towery also communicated by code to his attorneys while he was speaking his last words. (Id., ¶ 75.) He indicated that the execution team made numerous attempts to set the IV lines and that he had been prevented from speaking with counsel. (Id.) On April 25, 2012, Thomas Kemp was executed. (Id., ¶ 78.) Despite the prominence of good veins, he was punctured at least three times, including once in the femoral area and at least twice over the left upper extremity. (Id.) A few days after Kemp’s execution, Samuel Lopez filed a motion for preliminary injunction to stay his May 1, 2012 execution. (Id., ¶ 79.) The district court denied relief. 14 (Id.) The Ninth Circuit affirmed but warned the Department that its constant deviation 15 from its established procedures could not continue. (Id.) 16 On March 26, 2014, the Department adopted a new protocol, which included the 17 combination of 50 mg of midazolam and 50 mg of hydromorphone. (Id., ¶ 90.) The next 18 prisoner to be executed under this protocol was Joseph Wood. (Id.) Wood and other 19 inmates scheduled for execution filed this action. The district court denied a motion to 20 stay Wood’s execution, but the Ninth Circuit conditionally stayed the execution until the 21 Department disclosed the name and provenance of the drugs to be used and the 22 qualifications of the medical personnel. (Id., ¶ 94.) The Supreme Court reversed and 23 vacated the conditional stay. (Id., ¶ 97.) 24 Wood’s execution commenced on July 23, 2014, at 1:52 p.m. (Doc. 26 at 1.) 25 Twelve minutes into his execution, after first appearing sedated, Wood “rose upwards 26 against his restraints and gulped for air.” (Doc. 97, ¶ 101.) At the 18- and 24-minute 27 marks, the Department administered second and third doses of the midazolam- 28 hydromorphone combination, without performing a consciousness check as provided -7- Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 8 of 27 1 under the written protocol. (Id., ¶¶ 102–03.) By approximately 100 minutes after the 2 execution began, the Department had injected Wood 12 times with each drug. (Id., ¶ 3 105.) Finally, after nearly two hours and a total of 15 injections, Wood was pronounced 4 dead. (Id., ¶ 100.) 5 On September 18, 2014, the inmates filed their first amended complaint, which the 6 First Amendment Coalition joined as an additional plaintiff. (Doc. 53.) The parties 7 stipulated to stay the action until the Department published their revised execution 8 procedures. (Docs. 67, 68.) The new procedures were published on October 23, 2015. 9 (Doc. 73.) On motion of the Department, the court lifted the stay on December 20, 2015, 10 as to Protocol C, the only one for which the Department has the drugs. (Doc. 85.) On 11 January 12, 2016, the Court lifted the stay in its entirety. (Doc 89.) The Department 12 agreed not to seek warrants of execution until the completion of this litigation as to the 13 form of execution the State seeks to use, and it was so ordered. (Id.) Plaintiffs filed their 14 second amended complaint on January 29, 2016. (Doc. 97.) This motion to dismiss 15 followed. 16 17 18 19 20 21 22 23 24 III. DISCUSSION The Supreme Court has emphasized that “because it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.’” Glossip, 135 S. Ct. at 2732–33 (quoting Baze, 553 U.S. at 47). The court views the claims and the motion to dismiss with this principle in mind. The pharmaceutical manufacturers’ withdrawal of the best drugs from use in executions does not end capital punishment. A. Eighth Amendment: Midazolam and Paralytic (Claim 1) 25 In Claim 1, the inmates allege that Protocol C, with its use of midazolam followed 26 by a paralytic, violates their Eighth Amendment rights. They allege that “midazolam . . . 27 cannot reliably ensure that Petitioner [sic] will remain in a state in which he will be 28 unable to experience pain caused by the potassium chloride.” (Doc. 97, ¶ 151.) They -8- Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 9 of 27 1 allege that midazolam “has no pain-relieving effects, and it is not used as a sole agent to 2 maintain unconsciousness in painful procedures.” (Id., ¶ 135.) They further allege that 3 midazolam has a ceiling effect, “a point at which additional doses of midazolam cease to 4 affect the central nervous system (the brain and spinal cord),” and that midazolam, “at 5 any dose, will not reliably keep a person insensate during the administration of painful 6 stimuli.” (Id.) In contrast to midazolam, “[s]odium thiopental and pentobarbital belong 7 to a class of drugs called barbiturates. The mechanism of action for barbiturates is 8 different than that for benzodiazepines. Unlike benzodiazepines, barbiturates can keep a 9 person insensate to painful stimuli and, in high doses, will cause death.” (Id., ¶ 136.) 10 The inmates allege, therefore, that use of the paralytic, which causes pain on its 11 own “through slow suffocation” (id., ¶ 5) and masks pain resulting from the potassium 12 chloride, violates their “rights under the Eighth and Fourteenth Amendments to be free 13 from severe pain, experimentation, and the gratuitous invasion of the body.” (Id., ¶ 151.) 14 The relevant law is set forth in Baze and Glossip. To succeed on an Eighth 15 Amendment method-of-execution claim, a prisoner must make two showings. First, he 16 must establish that the method presents a risk that is “sure or very likely to cause serious 17 illness and needless suffering, and give rise to sufficiently imminent dangers.” Baze, 553 18 U.S. at 50 (quotations omitted). “[T]here must be a substantial risk of serious harm, an 19 objectively intolerable risk of harm that prevents prison officials from pleading that they 20 were subjectively blameless for purposes of the Eighth Amendment.” Id. (quotations 21 omitted). 22 Second, the prisoner “must identify an alternative that is ‘feasible, readily 23 implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’” 24 Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 52). The prisoner must do more 25 than “show[] a slightly or marginally safer alternative.” Id. (quoting Baze, 553 U.S. at 26 51). 27 The inmates argue that midazolam fails to maintain unconsciousness and it is 28 “sure or very likely” that the paralytic will “cause serious illness and needless suffering.” -9- Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 10 of 27 1 If, on the other hand, midazolam does achieve sedation and prevent the experience of 2 pain, then use of the paralytic is, in their view, “gratuitous, violative of bodily integrity, 3 and ‘unusual.’” (Doc. 102 at 3.) 4 As a feasible alternative, the inmates cite removal of the paralytic from the 5 protocol, which will “eliminat[e] the substantial likelihood of awareness of suffocation- 6 through-paralysis.” (Id. at 4.) They also suggest that alternatives to midazolam, such as 7 pentobarbital, are readily available. (Id., n.4.) 8 The Department contends that the decisions in Glossip and Baze foreclose relief 9 on this ground. In Glossip, the Supreme Court considered a lethal injection protocol 10 identical to Protocol C. The Court found that the district court, which held a three-day 11 evidentiary hearing on the petitioners’ motion for a preliminary injunction, “did not 12 commit clear error when it found that midazolam is highly likely to render a person 13 unable to feel pain during an execution.” 135 S. Ct. at 2739. 14 In Baze, the Court addressed a three-drug protocol involving the use of sodium 15 thiopental as the first drug, followed by the paralytic and potassium chloride. The Court 16 rejected the petitioners’ argument that the second drug, pancuronium bromide, “serves no 17 therapeutic purpose while suppressing muscle movements that could reveal an inadequate 18 administration of the first drug.” 553 U.S. at 57. The Court found that that use of the 19 paralytic “does not offend the Eighth Amendment,” explaining that the paralytic serves 20 two purposes: (1) it “prevents involuntary physical movements during unconsciousness 21 that may accompany the injection of potassium chloride,” thereby serving the state’s 22 “interest in preserving the dignity of the procedure, especially where convulsions or 23 seizures could be misperceived as signs of consciousness or distress,” and (2) “stops 24 respiration, hastening death.” Id. at 57–58. 25 The inmates counter that the holdings in Glossip and Baze are not dispositive. 26 They note that Glossip did not consider a challenge to the paralytic, while Baze 27 considered the paralytic in the context of a different sedative—sodium thiopental, a 28 barbiturate, which the petitioners conceded would “eliminate any meaningful risk” of - 10 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 11 of 27 1 pain from injection of the subsequent drugs. Baze, 553 U.S. at 49. Noting the posture in 2 which the case reached the Supreme Court, the inmates also contend that Glossip “did not 3 enshrine one court’s findings after an emergency injunction hearing as scientific fact 4 beyond challenge, let alone endorse midazolam’s constitutionality in all cases.” (Doc. 5 102 at 3–4.) 6 The inmates’ arguments are well taken. Neither Baze nor Glossip is dispositive of 7 their Eighth Amendment claims. 8 midazolam is not reliable as a sedative, which means the paralytic will mask the inmate’s 9 pain. In Baze, by contrast, there was no dispute that the first drug, sodium thiopental, 10 would render the inmate insensate to pain caused by the paralytic and the potassium 11 chloride. 553 U.S. at 49. The inmates challenge Protocol C, alleging that 12 Glossip does not foreclose relief. Glossip held only that the district court did not 13 clearly err in denying a preliminary injunction based on the evidence before it. Here, the 14 inmates indicate they will present substantial new evidence challenging midazolam’s 15 efficacy as a sedative. (Doc. 102 at 4.) Glossip underscores that this is a fact-based 16 inquiry, and the inmates are entitled to present evidence in support of the allegations. See 17 Glossip, 135 S. Ct. at 2740 (explaining that “an inmate challenging a protocol bears the 18 burden to show, based on evidence presented to the court, that there is a substantial risk 19 of severe pain”) (emphasis added). 20 The inmates have stated an Eighth Amendment claim that is plausible on its face. 21 Assuming the alleged material facts as true and construing them in the light most 22 favorable to the inmates, Claim 1 adequately alleges that Protocol C, by calling for a 23 paralytic after an ineffective sedative, is very likely to cause serious illness and needless 24 suffering. Baze, 553 U.S. at 50. The inmates have also adequately alleged that removing 25 the paralytic from the three-drug protocol is a feasible, readily implemented alternative 26 that would significantly reduce a substantial risk of severe pain. Id. at 52. They also 27 allege that alternatives to midazolam, such as pentobarbital, are readily available. (Doc. 28 102 at 4 n.4.) - 11 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 12 of 27 1 B. 2 The inmates challenge the Department’s recurring and substantial deviations from 3 its execution protocols as both cruel and unusual punishment and denial of procedural 4 due process. 5 Failure to Follow the Department’s Protocols 1. Eighth Amendment (Claim 6) 6 The inmates allege that the Department’s “excessive discretion” and “proven 7 failure to adhere to any stable and reliable method of execution” violate the Eighth 8 Amendment. (Doc. 97, ¶ 179.) They argue that “Defendants’ past experimentation and 9 improvisation with unprecedented methods and dosages of drugs amount to cruel and 10 unusual punishment.” (Id. at 52.) 11 In support of this claim, the inmates cite the discretionary clause in Arizona’s 12 current execution protocol allowing for “deviation or adjustment” where “required, as 13 determined by the Director.” (Doc. 97, ¶ 130 (quoting Doc. 98, Ex. A at 002).) The 14 inmates also cite the Department’s deviations from the protocol and “broken promises” in 15 previous executions, most prominently Wood’s. (Id., ¶¶ 72, 131.) 16 17 18 19 20 21 22 23 24 25 26 In Arthur v. Thomas, 674 F.3d 1257, 1263 (11th Cir. 2012), the Eleventh Circuit held that “[s]ignificant deviations from a protocol that protects inmates from cruel and unusual punishment can violate the Eighth Amendment.” See also Cooey v. Kasich, 801 F. Supp. 2d 623, 653–54 (S.D. Ohio 2011) (explaining that core deviations in protocol burden inmate’s fundamental right to be free from cruel and unusual punishment). This is because “[s]ubjecting individuals to a risk of future harm—not simply actually inflicting pain—can qualify as cruel and unusual punishment.” Arthur, 674 F.3d at 1263 (quoting Baze, 553 U.S. at 49). In Arthur, the prisoner alleged that in a previous execution the execution team failed to perform the required consciousness check after injection of the first drug. 674 F.3d at 1263. The court deemed it “plausible” that a similar failure could occur in the prisoner’s own pending execution, in part “because the protocol is not certain and could be unexpectedly changed for his execution.” Id. 27 28 - 12 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 13 of 27 1 This cause of action is narrower than perhaps the inmates hope. It cannot be cruel 2 and unusual punishment for the Department to fail to plan ahead for every minor 3 contingency. 4 discretion even for minor, routine contingencies, that challenge fails. But the inmates’ 5 principal challenge is to the Department’s failure to commit to, and its deviation from, 6 central aspects of the execution process once adopted. Those unlimited major deviations 7 and claims of right to deviate threaten serious pain. If the inmates are challenging the Department’s ability to exercise 8 The inmates allege here that the required consciousness check was not performed 9 during Wood’s execution and that there have been numerous other deviations from the 10 written protocol during recent executions, including the multiple dosages administered to 11 Wood. (Doc. 97, ¶¶ 103, 131.) In the inmates’ view, such deviations affect “critical 12 aspects” of the execution process. (Id., ¶ 129.) They claim the Department will continue 13 to deviate from its protocol because the discretionary clause permits it. (Id., ¶¶ 129–30.) 14 This claim is plausible in light of the broad language of the discretionary clause 15 and the Department’s pattern and practice of making major changes at any time, even 16 after litigation is concluded in the district court. Sometimes the Department just fails to 17 comply with its announced protocols without changing them. The Department’s history 18 of last minute deviations from critical aspects of its announced execution process is the 19 gist of this Eighth Amendment claim. The fact that the Department has discretion over 20 execution procedures may not, by itself, create a risk of serious pain. The inmates’ 21 allegations are tied to the unique facts in Arizona. These allegations, presumed true at 22 this stage, support the inmates’ fear that the Department’s prior conduct was not just an 23 “isolated mishap,” Baze, 553 U.S. at 35, but rather creates a substantial risk of serious 24 harm in their own upcoming executions. 25 2. Procedural Due Process (Claim 7) 26 The inmates also claim that the Director’s unfettered discretion and pattern of 27 deviating from the execution protocol violate their procedural due process rights under 28 the Fourteenth Amendment. (Doc. 97, ¶¶ 182–83; Doc. 102 at 14–15.) This claim - 13 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 14 of 27 1 overlaps with their Eighth Amendment claim, but it ultimately aims to vindicate the 2 inmates’ ability to protect their Eighth Amendment rights. 3 A case can be made for a procedural due process right to know ahead of time the 4 critical aspects of the intended execution. The Eighth Amendment protects inmates from 5 execution methods that pose a substantial risk of serious pain if another available method 6 would significantly reduce the risk. For this protection to have effect, inmates must be 7 able to challenge critical aspects of their own execution. The “right to be heard before 8 being condemned to suffer grievous loss of any kind . . . is a principle basic to our 9 society.” Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, 10 J., concurring). The only meaningful time that an inmate can challenge the method of his 11 own execution is before he is executed. “There is no redo.” Lopez v. Brewer, 680 F.3d 12 1084, 1092 (Berzon, J., concurring in part and dissenting in part from denial of rehearing 13 en banc). 14 There is, however, no right, substantive or procedural, to have every question 15 about executions answered ahead of time. For example, in Jones v. Commissioner, 16 Georgia Department of Corrections, 811 F.3d 1288, 1293 (11th Cir.), cert. denied sub 17 nom. Jones v. Bryson, 136 S. Ct. 998 (2016), the plaintiff sought the identity of the 18 manufacturer of the drugs Georgia intended to use to execute him, contrary to Georgia’s 19 secrecy statute prohibiting such disclosure. Plaintiff contended this prohibition violated 20 his due process rights. Noting that no other circuit had recognized such a right to 21 manufacturer identity, the Eleventh Circuit denied relief. Id. 22 Similarly, in Trottie v. Livingston, 766 F.3d 450, 452 (5th Cir.), cert. denied, 135 23 S. Ct. 41 (2014), the State of Texas disclosed the type, amount, and expiration date of the 24 drug to be used, and the fact that independent laboratory testing confirmed the potency 25 and purity of the drug; it also confirmed that the execution would be carried out in 26 conformity with its prior thirty-three executions. Id. The court found that the inmate’s 27 speculation “that there are unknowns regarding the drug to be used which may add an 28 unacceptable risk of pain and suffering” was insufficient to warrant general discovery - 14 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 15 of 27 1 into the process. Id. 2 At issue here is not a general due process right to information about critical 3 aspects of the execution; the State has already volunteered that information. The question 4 is whether an inmate’s due process rights are violated when a state provides information 5 about an execution protocol but then carries out the execution in a manner that 6 fundamentally differs from that protocol. This practice has different fairness and due 7 process dimensions than the oft-rejected claim to general discovery based on speculative 8 concerns. 9 A pre-execution challenge to an execution method is meaningful only if the inmate 10 knows what he is challenging. An inmate cannot be expected to raise challenges to the 11 electric chair, for example, if he is told he will face a firing squad. Basic fairness should 12 not allow a state to evade Eighth Amendment scrutiny by misdirecting an inmate into 13 challenging an execution protocol that will not, in fact, be used. A death row inmate has 14 a due process interest in notice of critical changes to his method of execution in time to 15 raise applicable Eighth Amendment challenges. 16 The strength of the inmate’s due process interest depends on the magnitude of the 17 change at issue and the imminence of the execution. 18 execution process are more likely to have far-reaching or unintended consequences and, 19 thus, more likely to trigger new Eighth Amendment concerns. Similarly, last-minute 20 changes afford less opportunity for critical investigation and therefore present a greater 21 risk of introducing preventable harm. Fundamental changes to an 22 Against the inmate’s interest in predictability must be weighed the State’s interest 23 in flexibility. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (weighing individual’s 24 interest in additional procedures against government’s contrary interest). The strength of 25 the State’s interest depends on the circumstances. The State has a strong interest in being 26 able to change inherently variable aspects of the execution process, such as the placement 27 of an IV line, immediately before or during an execution. 28 contingencies may demand it. The State may also have a strong interest in being able to - 15 - Ordinary medical Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 16 of 27 1 change major aspects of the process, such as the type of drugs used, in advance of an 2 execution. Market forces or medical advances may warrant it. 3 In some cases, the State’s change to an inmate’s execution method may be so 4 significant, so near the date of execution, and so unsupported by state interests, that it 5 denies the inmate the process he is due in order to raise an Eighth Amendment challenge. 6 The inmates claim this is such a case. They allege that the Department has made 7 significant changes in the execution process at the last minute, with no meaningful 8 opportunity to be heard, resulting in a constitutionally intolerable risk of pain. They 9 anticipate a similar fate because the discretionary clause in the State’s current protocol 10 allows for similar deviations. This discretion is not limited to any particular aspects of, 11 or stages in, the execution process. 12 The inmates’ claim is plausible in light of the breadth of the discretionary clause 13 and the recent instability of important aspects of Arizona’s execution procedures. Indeed, 14 the Ninth Circuit foreshadowed this claim, putting the State on notice that “[u]nless 15 permanent changes are made in the manner in which Arizona amends its protocols, 16 Arizona’s ongoing conduct may require [the court] to monitor every execution on an ad 17 hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to 18 execute inmates sentenced to death.” Towery v. Brewer, 672 F.3d 650, 653 (9th Cir. 19 2012). Judge Reinhardt, in his dissent from the denial of rehearing en banc in Lopez v. 20 Brewer, noted, “Over and over again, judges of this court have told the state that its 21 cavalier defiance of due process must end.” 680 F.3d at 1095 (Reinhardt, J., dissenting). 22 Thus, against the backdrop of the Department’s failure to follow its own written 23 protocol, Jones, Trottie, and other cases offer no guidance. Contrary to the Department’s 24 contention, the allegations here are more than “mere speculation.” (Doc. 98 at 15.) As 25 observed during the Lopez and Towery litigation, the Department has failed in material 26 ways to follow its written protocol in many of the executions in the last nine years. This 27 history, coupled with the unlimited discretion retained by the Director, gives rise to a 28 plausible claim that the Department’s ad hoc application of its execution protocol violates - 16 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 17 of 27 1 the inmates’ right to procedural due process under the Fourteenth Amendment. 2 Defendants’ motion to dismiss Claim 7 is denied. 3 C. 4 Plaintiffs’ First Amendment arguments take several forms. First Amendment (Claims 1, 3, 4, and 5) In Claim 1, the 5 inmates and the Coalition allege that the Department’s use of a paralytic violates their 6 First Amendment rights “by preventing them from observing midazolam’s efficacy at 7 maintaining unconsciousness and the pain and suffering caused by the administration of 8 the paralytic itself and the third drug, potassium chloride, and, if warranted, to challenge 9 the constitutionality of that pain.” (Doc. 97, ¶ 153.) They also allege that use of the 10 paralytic prevents the press and public from “observing the reality” of the prisoner’s 11 experience of the injections of midazolam and potassium chloride, and serves as a 12 “content-based restriction on important expression.” (Id., ¶ 154.) 13 In Claim 3, the Coalition alleges that the Department unconstitutionally prevents 14 them from aurally and visually observing the full execution proceeding, including the 15 provenance and amounts of drugs used, the timing and method of their administration, 16 their effect upon the prisoner, the details about the drugs, the rationale for the selection of 17 the drugs and dosages, the chain of custody of the drugs, and the qualifications of the 18 people administering them. (Id., ¶¶ 162–63.) In Claim 4, the inmates allege that lack of 19 access to this information violates their right to be informed of the method of execution. 20 (Id., ¶¶ 165–67.) 21 In Claim 5, the inmates allege that the Department’s failure to adhere to the 22 written protocol and failure to provide information concerning the drugs violates their 23 right to access to the courts and to petition the government for redress of grievances. (Id., 24 ¶¶ 169–176.) 25 1. California First Amendment Coalition 26 “Neither the First Amendment nor the Fourteenth Amendment mandates a right of 27 access to government information or sources of information within the government’s 28 control.” Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (plurality opinion). The - 17 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 18 of 27 1 Supreme Court “has never intimated a First Amendment guarantee of a right of access to 2 all sources of information within government control.” Id. at 9; see McBurney v. Young, 3 133 S. Ct. 1709, 1718 (2013) (“This Court has repeatedly made clear that there is no 4 constitutional right to obtain all the information provided by FOIA laws.”). 5 There is, however, a First Amendment right of public access to governmental 6 proceedings. See California First Amendment Coalition v. Woodford, 299 F.3d 868, 873 7 (9th Cir. 2002) (“It is well-settled that the First Amendment guarantees the public—and 8 the press—a qualified right of access to governmental proceedings.”); Press–Enterprise 9 Co. v. Superior Court, 478 U.S. 1, 8–14 (1986). Whether the public has a First 10 Amendment right of access to particular governmental proceedings is informed by two 11 considerations: (1) “whether the place and process have historically been open to the 12 press and general public” and (2) “whether public access plays a significant positive role 13 in the functioning of the particular process in question.” Press-Enterprise, 478 U.S. at 8– 14 9. 15 In California First Amendment Coalition v. Woodford, the Ninth Circuit 16 considered a regulation that prohibited witnesses from viewing the execution until after 17 the inmate had entered the chamber, the IV had been inserted, and the execution team 18 members had left the chamber. 299 F.3d at 871. The court found the regulation was an 19 “exaggerated, unreasonable response to prison officials’ legitimate concerns about the 20 safety of prison staff and thereby unconstitutionally restricts the public’s First 21 Amendment right to view executions from the moment the condemned is escorted into 22 the execution chamber.” Id. at 870–71. The court explained that the regulation “prevents 23 the public from having any first-hand knowledge of the events that take place behind the 24 curtain.” Id. at 883. For example, witnesses could “not observe the condemned inmate’s 25 demeanor as he enters the execution chamber, has intravenous lines inserted into his body 26 and realizes that the saline solution has begun to flow” or “the manner of the guards as 27 they restrain the prisoner.” Id. “Because witnesses cannot see first-hand the manner in 28 which the intravenous lines are injected, they will not be privy to any complications that - 18 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 19 of 27 1 may arise during this initial, invasive procedure.” Id. 2 The Ninth Circuit applied Press-Enterprise to executions and held the press and 3 the public have a First Amendment right to view execution proceedings from the moment 4 the condemned enters the execution chamber to the time he is pronounced dead. Id. at 5 885–86. The court first found that “historical tradition strongly supports the public’s 6 First Amendment right to view the condemned as the guards escort him into the chamber, 7 strap him to the gurney and insert the intravenous lines.” Id. at 876. 8 9 10 11 12 13 14 15 16 With respect to the functional role of public access to executions, the court reasoned: To determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable information about the “initial procedures,” which are invasive, possibly painful and may give rise to serious complications. This information is best gathered first-hand or from the media, which serves as the public’s surrogate. . . . Accordingly, the same functional concerns that drove the Court to recognize the public’s right of access to criminal trial proceedings compel us to hold that the public has a First Amendment right to view the condemned as he enters the execution chamber, is forcibly restrained and fitted with the apparatus of death. 17 Id. at 876–77 (citations omitted); see Associated Press v. Otter, 682 F.3d 821, 822–26 18 (9th Cir. 2012) (holding that media corporations were likely to prevail on the merits of 19 their claim that Idaho violated the First Amendment by denying their right to witness all 20 stages of executions, including the prisoner’s entry into the execution chamber and 21 insertion of IV lines). 22 2. Right to Know the Efficacy of Midazolam (Claim 1) 23 The plaintiff inmates and the Coalition argue that their First Amendment rights are 24 violated because the paralytic acts as a “chemical screen” that hides the effects of the 25 lethal injection drugs. (Doc. 102 at 6.) In support of this claim, they rely exclusively on 26 California First Amendment Coalition. 27 established only a public right to view the execution, including the injection of the drugs. As described below, however, that case 28 - 19 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 20 of 27 1 2 3 4 5 6 3. Right to Know Other Details of the Execution (Claims 3 and 4) The plaintiff inmates and the Coalition allege the Department violates their First Amendment right of access to governmental proceedings by concealment of facts such as the source, quality, and amounts of drugs used in executions, and the timing, method, and effect of the administration of the drugs. These allegations are insufficient to state a plausible First Amendment claim. 7 Department Order 710 satisfies California First Amendment Coalition by allowing 8 the public “to view the condemned as he enters the execution chamber, is forcibly 9 restrained and fitted with the apparatus of death.” 299 F.3d at 876. Witnesses are able to 10 observe the prisoner entering the execution chamber. (See Doc. 97, ¶ 126.) The protocol 11 provides, “At the designated time, the overhead microphone will be turned on and the 12 inmate will be brought into the execution room . . . . [C]losed-circuit monitors will allow 13 witnesses in the designated witness room to observe this process.” (Doc. 98, Ex. A at 14 030.) “[C]losed-circuit monitors will allow witnesses in the designated witness room to 15 observe the IV Team’s vein assessment and placement of IV catheters in the inmate.” 16 (Id. at 031.) Accordingly, witnesses can see the prisoner’s demeanor, the manner of the 17 guards, and the way in which the IVs are inserted. 18 Coalition, 299 F.3d at 883. California First Amendment 19 Plaintiffs allege that the execution chamber curtain is closed during this process, 20 and opened only after the IVs are inserted, at which point the monitors and microphone 21 are turned off. (Doc. 97, ¶ 140.) Even if true, these facts do not render the procedures 22 deficient under California First Amendment Coalition, because witnesses are able to view 23 the entire execution, either through closed circuit monitors or when the execution 24 chamber curtain is opened. 25 California First Amendment Coalition did not address a right of access to 26 information about lethal injection drugs, the development of lethal injection protocols, 27 the qualification of the execution team, the effects of the paralytic, or any of the other 28 information Plaintiffs seek. No precedent extends California First Amendment Coalition - 20 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 21 of 27 1 to information preceding the inmate’s entrance into the execution chamber. Indeed, no 2 other Circuit has followed California First Amendment Coalition even as far as it does 3 go. 4 This court previously denied a preliminary injunction based on Plaintiff Wood’s 5 claim of a First Amendment right of access to information about the lethal injection drugs 6 and execution team personnel. (Doc. 21.) The Ninth Circuit reversed, enjoining Wood’s 7 execution, but the United States Supreme Court vacated the injunction without dissent. 8 Wood v. Ryan, 759 F.3d 1076, 1088 (9th Cir.), vacated, 135 S. Ct. 21 (2014). 9 Other circuits and lower courts have rejected the First Amendment claim made 10 here. In Wellons v. Comm’r, Georgia Dept. of Corrections, 754 F.3d 1260 (11th Cir. 11 2014), the Eleventh Circuit considered an inmate’s claim that the state’s failure to 12 provide information about his execution violated his First Amendment right of access to 13 governmental proceedings. The court denied the claim, explaining: 14 15 16 17 18 19 20 Neither the Fifth, Fourteenth, or First Amendments afford Wellons the broad right “to know where, how, and by whom the lethal injection drugs will be manufactured,” as well as “the qualifications of the person or persons who will manufacture the drugs, and who will place the catheters.” . . . Wellons has not established a substantial likelihood of success on the merits of his claim that the dearth of information regarding the nature of the pentobarbital that will be used in his execution and the expertise of those who will carry it out violates the First Amendment or his right to due process. Id. at 1267 (quotation omitted) 21 In Zink v. Lombardi, 783 F.3d 1089, 1112 (8th Cir. 2015), the Eighth Circuit 22 rejected the prisoners’ claim of a First Amendment right to information concerning the 23 source of compounded pentobarbital. The court first noted that it had never “ruled that an 24 execution constitutes the kind of criminal proceeding to which the public enjoys a 25 qualified right of access under the First Amendment.” Id. The court then explained that 26 even if Press-Enterprise did apply to executions, as the Ninth Circuit held in California 27 First Amendment Coalition, the prisoners still failed to state a First Amendment claim: 28 - 21 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 22 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 In sum, the prisoners fail to state a claim of a qualified right of public access to information regarding the source of the compounded pentobarbital to be used in their executions because they do not plausibly allege a history of openness to the general public. The complaint likewise provides no basis to conclude that public access to detailed information about execution protocols plays a significant positive role in the functioning of the process in question, given that the practical effect of public disclosure would likely be frustration of the State’s ability to carry out lawful sentences. Id. at 1113. The California First Amendment Coalition measure of First Amendment right is “whether the public has a First Amendment right to view executions.” 299 F.3d at 873 (emphasis added). “The public and press historically have been allowed to watch the condemned inmate enter the execution place, be attached to the execution device and then die.” Id. at 876. There is no allegation here that the press and general public have historically had greater visual or aural access to executions than that provided by Department Order 710, or access to information concerning the provenance of the drugs 15 or the qualifications of the execution team members. See Zink, 783 F.3d at 1112 (citing 16 Wood, 759 F.3d at 1093–95 (Bybee, J., dissenting)); Oklahoma Observer v. Patton, 73 17 F.Supp.3d 1318, 1328 (W.D. Okla. 2014). 18 The public’s First Amendment right to view court proceedings does not reach back 19 to sitting in on the police’s, the prosecutor’s, or the judge’s preparation for the 20 proceeding. 21 execution to come. If an inmate has rights to such information, they come out of the 22 Eighth Amendment, perhaps as aided by procedural due process in an appropriate case, 23 not the First Amendment. The press has no such right, not without the Court making new 24 law that extends beyond historical practice and legal authority. 25 26 Nor does it reach behind an execution to learn everything about the 4. Failure to Follow Protocols and Inmate’s Right of Access to the Courts (Claim 5) 27 The inmates allege that the Department, by concealing information about the 28 execution drugs, violates their right of access to the courts and their ability to challenge - 22 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 23 of 27 1 the constitutionality of their executions. Courts have consistently rejected these claims of 2 right of access to the courts. See Wellons, 754 F.3d at 1264, 1267; Phillips v. DeWine, 92 3 F. Supp. 3d 702, 715 (S.D. Ohio 2015) (dismissing right to petition and right of access 4 claims); Schad v. Brewer, No. CV-13-2001-PHX-ROS, 2013 WL 5551668, at *9 (D. 5 Ariz. Oct. 7, 2013) (rejecting argument that “Defendants’ concealment of the drug 6 information violates their right to due process and meaningful access to the courts by 7 preventing them from discovering whether they have a colorable claim that their 8 executions will be carried out in violation of the Eighth Amendment”). “The right of 9 access to the courts does not include a right to discover causes of action or to litigate 10 effectively once in court.” Schad, 2013 WL 5551668, at *9 (citing Lewis v. Casey, 518 11 U.S. 343, 354 (1996)). 12 Plaintiffs’ First Amendment claims lack a cognizable legal theory and do not 13 allege facts sufficient under a cognizable legal theory. Balistreri, 901 F.2d at 699. The 14 Department’s motion to dismiss these claims is granted. 15 D. Substantive Due Process: Paralytic as Arbitrary and Not Medically Appropriate (Claim 2) 16 17 18 19 20 21 22 23 24 The inmates allege that the Department’s use of a paralytic invades their liberty interest in bodily integrity under the Due Process Clause of the Fourteenth Amendment. (Doc. 97, ¶¶ 157–60.) They assert that the “paralytic is at best entirely superfluous, and at worst, masks immense pain”; that a three-drug protocol using the paralytic “will be invasive, offensive, disfiguring, and/or torturous”; and that “Defendants have no rational basis” for using such a protocol. (Id., ¶¶ 159, 160.) They argue that because the paralytic “serves no legitimate purpose,” its use is “arbitrary” and “shocks the conscience.” (Doc. 102 at 8.) 25 First, as already noted, the Supreme Court in Baze found that the paralytic, which 26 was used in the three-drug execution protocol of at least 30 states, 553 U.S. at 44, serves 27 two legitimate purposes, maintaining the dignity of the procedure and hastening death. 28 Id. at 57–58. Administration of a paralytic as the second drug after an effective agent of - 23 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 24 of 27 1 unconsciousness in a three-drug lethal injection protocol is not so arbitrary that it shocks 2 the conscience. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (“[O]nly the 3 most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’”) 4 (quoting Collins v. Harker Heights, 503 U.S. 115, 129 (1992)). 5 Next, in support of this substantive due process claim, the inmates rely on 6 Washington v. Harper, 494 U.S. 210 (1990), and Johnson v. Meltzer, 134 F.3d 1393, 7 1397 (9th Cir. 1998). Harper held that there is “a significant liberty interest in avoiding 8 the unwanted administration of antipsychotic drugs under the Due Process Clause of the 9 Fourteenth Amendment.” 494 U.S. at 221–22. Johnson explained that Harper and 10 Riggins v. Nevada, 504 U.S. 127 (1992), another “‘substantive due process’ case[] 11 involving the nonconsensual administration of medication,” stand for the proposition that 12 “due process requires that if a doctor gives a drug to an inmate without his consent, the 13 drug must be medically appropriate.” 134 F.3d at 1397. 14 These cases are inapposite. In Chavez v. Florida SP Warden, 742 F.3d 1267, 1269 15 n.2 (11th Cir. 2014), the Eleventh Circuit rejected the prisoner’s argument that the 16 forcible administration of the paralytic vecuronium bromide violated his due process 17 rights because it served no medical purpose in the execution process. Affirming the 18 district court, the court of appeals explained that “the liberty interest in avoiding 19 involuntary medical treatment . . . does not apply in the context of capital punishment 20 ‘because by its nature, the execution process is not a medical procedure, and by design, it 21 is not medically appropriate for the condemned,’ and ‘[u]sing drugs for the purpose of 22 carrying out the death penalty does not constitute medical treatment.’” Id. (quoting 23 Chavez v. Palmer, No. 3:14-cv-110-J-39JBT, 2014 WL 521067, at *22 (M.D. Fla. Feb. 24 10, 2014)); see Howell v. State, 133 So.3d 511, 523 (Fla. 2014) (rejecting due process 25 challenge to forced administration of paralytic). 26 The inmates cite no authority extending Harper and Riggins beyond the context of 27 forced medical treatment. “A condemned inmate does not have a liberty interest in 28 avoiding the use of execution drugs.” Chavez v. Palmer, 2014 WL 521067, at *22. - 24 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 25 of 27 1 Claim 2 is not supported by a cognizable legal theory, Balistreri, 901 F.2d at 699, and 2 will be dismissed. 3 E. Class of One Equal Protection Violation (Claim 8) 4 5 In Claim 8, the inmates allege that the Department’s “pattern of deviating from 6 their Procedures and exercising their discretion in inhumane ways increases the risk of 7 being subjected to an unusual or lingering death, in violation of the Fourteenth 8 Amendment’s Equal Protection Clause.” 9 “disparate treatment burdens a fundamental right.” (Id., ¶ 189.) The inmates also allege 10 11 (Doc. 97 at 53.) They allege that this that each of them is a “class of one.” (Id., ¶ 186.) As the threshold matter, there is no “fundamental right” to burden here except the 12 Eighth Amendment right to be free of cruel and unusual punishment. 13 The Eighth Amendment is adequate to measure and remedy their true rights. 14 The Supreme Court has “recognized successful equal protection claims brought by 15 a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated 16 differently from others similarly situated and that there is no rational basis for the 17 difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per 18 curiam). “[T]he plaintiff in a ‘class of one’ case does not allege that the defendants 19 discriminate against a group with whom she shares characteristics, but rather that the 20 defendants simply harbor animus against her in particular and therefore treated her 21 arbitrarily.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). In 22 Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 601 (2008), the Court narrowed the 23 scope of “class of one” claims, recognizing that not all state actions resulting in disparate 24 treatment raise equal protection concerns. 25 The inmates misapprehend the class-of-one doctrine under the Equal Protection 26 Clause. In Towery and Lopez, the Ninth Circuit specifically rejected equal protection 27 claims in Arizona execution cases. In Towery, the court found that the class-of-one 28 doctrine does not apply to forms of state action which by their nature involve - 25 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 26 of 27 1 discretionary decision-making. 672 F.3d at 660. The court explained that “the existence 2 of discretion, standing alone, cannot be an Equal Protection violation. At the very least, 3 there must be some respect in which the discretion is being exercised so that the 4 complaining individual is being treated less favorably than others generally are.” Id. at 5 661. “Treating one similarly situated prisoner differently from another with regard to 6 punishment does not inherently impact the right to be free of cruel and unusual 7 punishment.” Id. at 660; see Lopez, 680 F.3d at 1076. The court noted that an equal 8 protection violation could be demonstrated only if the plaintiffs “were able to show an 9 actual pattern of treating prisoners differently in ways that did affect the risk of pain to 10 which they would be subjected, and therefore the risk of being subjected to cruel and 11 unusual punishment.” Towery, 672 F.3d at 660. 12 The inmates here do not allege a “pattern of generally exercising the discretion in 13 a particular manner while treating one individual differently and detrimentally.” Id. at 14 660–61. Instead, they allege the Department has engaged in a pattern, not of treating one 15 inmate differently from others generally, but of treating all inmates differently from all 16 others, or close to it. Under the inmates’ theory, no one is treated appropriately. This is 17 not a cognizable violation of the Equal Protection Clause. 18 19 The inmates have not stated a plausible equal protection claim. Claim 8 is dismissed. 20 21 IT IS THEREFORE ORDERED that Defendants’ motion to dismiss (Doc. 98) 22 is granted with prejudice as to the following claims in Plaintiffs’ Second Amended 23 Complaint: 24 Claim 1 (in part): First Amendment right to know efficacy of midazolam. 25 Claim 2: Substantive due process claim against use of paralytic. 26 Claims 3 and 4: First Amendment claims to information about the execution. 27 Claim 5: First Amendment right of access to courts. 28 Claim 8: Class of one equal protection violation. - 26 - Case 2:14-cv-01447-NVW Document 117 Filed 05/18/16 Page 27 of 27 1 2 IT IS FURTHER ORDERED that Defendants’ motion to dismiss (Doc. 98) is denied as to the following claims in Plaintiffs’ Second Amended Complaint: 3 Claim 1 (in part): Eighth Amendment claim as to midazolam and paralytic. 4 Claim 6: Eighth Amendment claim for failure to follow protocol. 5 Claim 7: Procedural due process claim for failure to follow protocol. 6 IT IS FURTHER ORDERED that Plaintiff First Amendment Coalition of 7 Arizona, Inc., is dismissed from this action with prejudice, as any amendment would be 8 futile. 9 10 IT IS FURTHER ORDERED that Plaintiffs’ unopposed request for judicial notice of the 1992 General Election Arizona Publicity Pamphlet (Doc. 100) is granted. 11 IT IS FURTHER ORDERED: 12 (1) that Defendants shall file an answer to Plaintiffs’ Second Amended Complaint 13 no later than Friday, May 27, 2016. 14 (2) that initial disclosures shall be served no later than Wednesday, June 8, 2016. 15 (3) that the parties shall file a joint proposed Discovery Plan pursuant to Federal 16 Rule of Civil Procedure 26(f) no later than Friday, June 24, 2016. 17 (4) that a Scheduling Conference pursuant to Federal Rule of Civil Procedure 16 18 is set for Wednesday, June 29, 2016, at 1:30 p.m. in Courtroom 504, Sandra Day 19 O’Connor U.S. Courthouse, 401 West Washington Street, Phoenix, Arizona 85003. 20 Dated this 18th day of May, 2016. 21 22 23 24 Neil V. Wake United States District Judge 25 26 27 28 - 27 -

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