Wood et al v. Ryan et al

Filing 21

ORDER that Plaintiff Wood's Motion for Preliminary Injunction or Temporary Restraining Order (Doc. 11 ) is DENIED. See order for complete details. Signed by Judge Neil V. Wake on 7/10/14. (NKS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Joseph Rudolph Wood, III, Plaintiff, 11 12 13 14 No. CV-14-1447-PHX-NVW (JFM) ORDER vs. Charles L. Ryan, et al., Defendants. 15 16 17 Before the Court is the Motion for Preliminary Injunction or Temporary 18 19 20 21 Restraining Order filed by Plaintiff Joseph Rudolph Wood III. (Doc. 11.) Wood seeks an injunction requiring Defendants to disclose certain information about the drugs, drug protocol, and personnel that will be involved in his execution, which is set for July 23, 22 23 2014. (Id.) Briefing on the motion was completed on July 8, 2014. (Docs. 15, 16.) The 24 Court heard oral argument on July 9, 2014. 25 This order states the Court’s findings of fact and conclusions of law pursuant to 26 27 Federal Rule of Civil Procedure 52(a)(2). For the reasons that follow, Wood’s motion 28 will be denied. 1 1 BACKGROUND 2 3 4 5 The Court has considered the pleadings and exhibits. Based on these documents, the Court finds that the following facts are undisputed. On April 22, 2014, the State moved for a warrant of execution. That same day, 6 7 8 9 Jeffrey A. Zick, Chief Counsel of the Capital Litigation Section of the Office of the Arizona Attorney General, sent a letter to Wood’s counsel informing them that the Arizona Department of Corrections intends to use a two-drug protocol consisting of 10 11 midazolam and hydromorphone to execute Wood. (Doc. 119, Ex. A.) Zick also stated 12 that if “ADC is able to procure pentobarbital, ADC will provide notice of its intent to 13 use that drug.” (Id.) 14 15 A warrant of execution was issued on May 28, 2014. 16 The current execution protocol, found in Department Order 710, and effective 17 18 March 26, 2014, calls for the use of 50 mg of midazolam and 50 mg of hydromorphone. 19 It also provides for one-drug protocols using pentobarbital or sodium pentothal. (See 20 Doc. 11, Ex. I.) 21 22 Between April 30 and June 6, 2014, the parties exchanged a series of letters. On 23 April 30, Wood’s counsel sent Defendant Ryan a letter requesting information about the 24 provenance of the midazolam and hydromorphone and asking for an explanation of the 25 26 27 Department of Corrections’ continuing search for pentobarbital. (Id., Ex. B.) Counsel also sought information about the Drug Enforcement Administration qualifications of 28 2 1 the personnel who would participate in Plaintiff’s execution asked Ryan to explain how 2 3 the Department of Corrections determined the midazolam and hydromorphone dosages 4 in its protocol and asked why the amounts of midazolam and hydromorphone differ 5 from the amounts required in the State of Ohio’s lethal-injection protocol. (Id.) 6 7 8 9 On May 6, Ryan replied to the April 30 letter. (Id., Ex. F.) He declined to provide further information about the drugs, based on the Department of Corrections’ interpretation of Arizona’s executioner-confidentiality statute, A.R.S. § 13-757(C). (Id.) 10 11 However, he avowed that the drugs are “domestically obtained” and “FDA approved.” 12 (Id.) Ryan further noted that the Department of Corrections continued to look for 13 pentobarbital and would inform Plaintiff’s counsel if it obtained the drug. (Id.) Ryan 14 15 declined to provide specific information about the Drug Enforcement Administration 16 qualifications of the execution personnel, but stated that “the qualifications of the IV 17 18 team as set forth in Department Order 710.02-1.2.5 have not changed since the ADC 19 amended the protocol in September, 2012, to include assurances of the IV team’s 20 qualifications.” (Id.) He also indicated that the development of the Department of 21 22 23 24 Corrections’ two-drug protocol was based on affidavits and testimony in Case No. 2:11CV-1016, in the Southern District of Ohio. (Id.) On May 9, Woods counsel sent a follow-up letter seeking clarification and 25 26 27 requesting specific Ohio documents referenced in Ryan’s letter. (Id., Ex. C.) Counsel again asked for the qualifications of the medical professionals who would participate in 28 3 1 Wood’s execution, as well as evidence demonstrating that the Department of 2 3 Corrections had verified those qualifications. (Id.) 4 On May 15, Wood’s counsel sent another letter, again asking for the Drug 5 Enforcement Administration and medical qualifications, along with information about 6 7 8 9 the development of the Department of Corrections’ two-drug protocol. (Id., Ex. D.) Counsel also requested documents pertaining to correspondence with various state departments of corrections and federal agencies. (Id.) 10 11 On June 6, Ryan sent Wood’s counsel a response. (Id., Ex. G.) Ryan provided 12 redacted copies of purchase orders, invoices, and order confirmations for the midazolam 13 and hydromorphone. (Id.) The documents display the drug names and expiration 14 15 dates—September and October 2015. (Id.) Information about the manufacturers and 16 suppliers of the midazolam and hydromorphone was redacted. (Id.) Ryan also avowed 17 18 that the Inspector General had verified the qualifications of the medical professionals on 19 the IV team; in the event that a central femoral line was used, it would be placed by a 20 person currently licensed or certified to do so. (Id.) Defendant Ryan declined to provide 21 22 copies of the Ohio documents, asserting that because the Federal Public Defender’s 23 Office was involved in the Ohio litigation, Wood’s counsel would have access to the 24 documents. (Id.) 25 26 27 On June 26, Wood and plaintiffs Graham S. Henry, David Gulbrandson, Todd Smith, Charles M. Hedlund, and Eldon Schurz filed a civil rights complaint alleging 28 4 1 three claims: a violation of their First Amendment right of access to the courts (Claim 2 3 One), a violation of their First Amendment right of access to governmental proceedings 4 (Claim Two), and a Supremacy Clause violation based on the Department of 5 Corrections’ alleged failure to follow the Food, Drug, and Cosmetics Act in adopting its 6 7 8 9 lethal-injection protocol. (Claim 3). (Doc. 1.) On June 28, 2014, Wood received final notice from the Department of Corrections stating that his execution would be carried out using the midazolam and 10 11 12 hydromorphone two-drug protocol. (Doc. 16, Ex. M.) On July 1, 2014, Wood filed his motion for a preliminary injunction. (Doc. 11.) 13 DISCUSSION 14 15 Wood seeks the following information: the source(s), manufacturer(s), National 16 Drug Codes (NDCs), and lot numbers of the drugs Defendants intend to use in his 17 18 execution; non-personally-identifying information detailing the medical, professional, 19 and controlled-substances qualifications and certifications of the personnel Defendants 20 intend to use in his execution; and information and documents detailing the manner in 21 22 which Defendants developed their lethal-injection drug protocol. (Doc. 11 at 1.) The 23 motion is based solely on Claim Two, alleging that Defendants’ refusal to provide the 24 information violates Plaintiff’s right of access to governmental proceedings. (See id. at 25 26 9; Doc. 16 at 2 & n.2.) 27 28 5 1 I. APPLICABLE LAW 2 3 A. Standard for Injunctive Relief 4 A preliminary injunction is “an extraordinary and drastic remedy, one that should 5 not be granted unless the movant, by a clear showing, carries the burden of persuasion.” 6 7 8 9 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted). An injunction may be granted only where the movant shows that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 10 11 relief, that the balance of equities tips in his favor, and that an injunction is in the public 12 interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also 13 Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir. 2005). Alternatively, under the 14 15 Ninth Circuit’s “serious questions” version of the sliding-scale test, a preliminary 16 injunction is appropriate when a plaintiff demonstrates that “serious questions going to 17 18 the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor.” 19 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (citation 20 omitted). This approach requires that the elements of the preliminary injunction test be 21 22 23 24 balanced, so that a stronger showing of one element may offset a weaker showing of another. In the context of a capital case, the Supreme Court has emphasized that these 25 26 27 principles apply when a condemned prisoner asks a federal court to enjoin his impending execution. “Filing an action that can proceed under § 1983 does not entitle 28 6 1 the complainant to an order staying an execution as a matter of course.” Hill v. 2 3 McDonough, 547 U.S. 573, 583–84 (2006). Rather, “a stay of execution is an equitable 4 remedy” and “equity must be sensitive to the State’s strong interest in enforcing its 5 criminal judgments without undue interference from the federal courts.” Id. at 584; see 6 7 8 9 Beardslee, 395 F.3d at 1068. B. First Amendment Right of Access to Governmental Proceedings “Neither the First Amendment nor the Fourteenth Amendment mandates a right 10 11 of access to government information or sources of information within the government’s 12 control.” Houchins v. KQED, 438 U.S. 1, 15 (1978) (plurality opinion). The Supreme 13 Court “has never intimated a First Amendment guarantee of a right of access to all 14 15 sources of information within government control.” Id. at 9; see McBurney v. Young, 16 133 S. Ct. 1709, 1718 (2013) (“This Court has repeatedly made clear that there is no 17 18 constitutional right to obtain all the information provided by FOIA laws.”). 19 There is, however, a First Amendment right of public access to governmental 20 proceedings. In California First Amendment Coalition v. Woodford, 299 F.3d 868, 873– 21 22 74 (9th Cir. 2002), the Ninth Circuit explained that “[i]t is well-settled that the First 23 Amendment guarantees the public—and the press—a qualified right of access to 24 governmental proceedings.” See Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 8– 25 26 27 14 (1986) (“Press- Enterprise II”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603–11 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 579 (1980). 28 7 1 The right of access is premised on “the common understanding that ‘a major purpose of 2 3 [the First] Amendment was to protect the free discussion of governmental affairs.’” 4 Globe Newspaper, 457 U.S. at 604 (quoting Mills v. Alabama, 384 U.S. 214, 218 5 (1966)). 6 7 8 9 Whether the public has a First Amendment right of access to particular governmental proceedings is informed by two “complimentary considerations”: (1) “whether the place and process have historically been open to the press and general 10 11 public” and (2) “whether public access plays a significant positive role in the 12 functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8–9. 13 In California First Amendment Coalition, the Ninth Circuit noted that under its 14 15 precedent the right of access extends to a “broad range of criminal proceedings” and 16 “documents filed therein.” 299 F.3d at 874 (citation omitted). Based on these principles, 17 18 the court concluded that the press and the public have a First Amendment right to view 19 execution proceedings from the moment the condemned enters the execution chamber 20 to the time he is pronounced dead. Id. at 885–86. The court reasoned as follows: 21 22 23 24 25 26 27 28 Independent public scrutiny—made possible by the public and media witnesses to an execution—plays a significant role in the proper functioning of capital punishment. An informed public debate is critical in determining whether execution by lethal injection comports with “the evolving standards of decency which mark the progress of a maturing society.” 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 8 1 the public’s surrogate. Further, “public access . . . fosters an appearance of fairness, thereby heightening public respect for the judicial process.” Finally, public observation of executions fosters the same sense of catharsis that public observation of criminal trials fosters. . . . 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. 2 3 4 5 6 7 8 9 Id. at 876 (citations omitted). II. ANALYSIS 10 11 Wood contends that he is likely to succeed on the merits of Claim Two, alleging 12 a violation of his right of access to governmental proceedings under the First 13 Amendment. The Court disagrees. 14 15 Plaintiff relies principally on Schad v. Brewer, No. CV-13-2001-PHX-ROS, 16 2013 WL 5551668 (D.Ariz. Oct. 7, 2013), and California First Amendment Coalition. 17 18 (Doc. 11 at 10–12.) California First Amendment Coalition did not address a right of 19 access to documentary information about lethal injection drugs, the development of 20 lethal injection protocols, or the qualification of the execution team. In Schad, however, 21 22 the court relied on California First Amendment Coalition to grant relief on the 23 plaintiff’s claim of First Amendment right of access to government proceedings. The 24 court required Defendants to disclose the manufacturer, NDCs, lot numbers, and 25 26 27 expiration dates of the lethal injection drugs. The court found that the plaintiff had a right to the drug information because historically executions have been open events and 28 9 1 public access to the drug information plays a significant positive role in the functioning 2 3 of capital punishment. The court stated that “the public must have reliable information 4 about the lethal injection drugs themselves in order to judge the propriety of the 5 particular means used to carry out an execution.” Id., at *5. 6 For the reasons discussed next, the Court reaches a different result in this case. 7 8 9 Since the ruling in Schad, two courts have addressed similar claims of First Amendment right of access to pre-execution state records and information. Both courts 10 11 cited California First Amendment Coalition but denied the First Amendment claims. In 12 Owens v. Hill, --- S.E.2d ----, 2014 WL 2025129 (Ga. 2014), the Supreme Court of 13 Georgia rejected the inmate’s claim of a First Amendment right of access to information 14 15 concerning the identity of the drug manufacturer. The court cited the test formulated in 16 Press-Enterprise II and applied in California First Amendment Coalition and concluded 17 18 that “[e]ven adopting the extravagant view that the acquisition of execution drugs is a 19 government process subject to this test, we still conclude that Hill’s claims fail to satisfy 20 either of these elements”—i.e., whether access had been granted historically and 21 22 23 24 whether public access would play a positive role in the functioning of the process. Id., at *10. In Wellons v. Commissioner, Georgia Dept. of Corrections, --- F.3d ----, 2014 25 26 27 WL 2748316, at *6 (11th Cir. 2014), a decision issued June 17, 2014, the Eleventh Circuit rejected an inmate’s claim that the State’s failure to provide information about 28 10 1 the drugs to be used in his execution violated his First Amendment right of access to 2 3 governmental proceedings. The district court denied the inmate’s motion for injunctive 4 relief. It “agreed with Defendants that while there may be First Amendment 5 implications involved in the openness of government operations, the cases Wellons 6 7 8 9 relies upon [including California First Amendment Coalition] turn on the public’s, rather than the individual’s, need to be informed so as to foster debate.” Id. The Court of Appeals agreed, explaining: 10 11 12 13 14 15 16 17 18 19 20 We agree with the judgment of the district court. 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. This ground is also a sufficient basis to conclude that the district court did not abuse its discretion in concluding that Wellons is not entitled to injunctive relief on these claims. Id., at *6 (quotation omitted). 21 Having reviewed the cases cited by both parties, particularly California First 22 Amendment Coalition, the Court concludes that the First Amendment does not provide a 23 24 25 26 right to access to the specific information Wood seeks. The question addressed in California First Amendment Coalition was “whether the public has a First Amendment right to view executions.” 299 F.3d at 873 (emphasis added). In answering that question, 27 28 the court noted that “[t]he public and press historically have been allowed to watch the 11 1 condemned inmate enter the execution place, be attached to the execution device and 2 3 then die.” Id. at 876. By contrast, Wood has cited no authority for the proposition that 4 the press and general public have historically been granted access to information 5 identifying of the manufacturer of lethal-injection drugs. To the extent that the 6 7 8 9 Department of Corrections has disclosed such information to civil rights plaintiffs in the past, it has been pursuant to court order, as in Schad, or during discovery, as in West v. Brewer, No. 2:11-CV-1409-NVW. 10 11 Plaintiff also argues that information identifying the manufacturer of the lethal 12 injection drugs is necessary to the public debate about the death penalty. The Court is 13 not persuaded. Given the information that has already been disclosed, including the type 14 15 of drug, the dosage to be used, and the expiration dates, as well as the fact that the drugs 16 are domestically-obtained and FDA-approved, access to the additional information 17 18 sought by Plaintiff would not “play[] a significant positive role in the functioning” of 19 the death penalty. California First Amendment Coalition, 299 F.3d at 875 (quoting 20 Press-Enterprise II, 478 U.S. at 8). The available information is sufficient for an 21 22 “informed public debate.” Id. at 876. 23 Finally, in contrast to the record considered by the court in Schad, there are not 24 significant questions about the reliability of the information disclosed by the Arizona 25 26 Department of Corrections. 2013 WL 5551668, at *2. For example, there are not 27 28 12 1 concerns that the lethal injection drugs are expired or obtained from a foreign source. 2 3 Shad, 2013 WL 5551668, at *2. 4 The holding in California First Amendment Coalition does not extend a First 5 Amendment right to information identifying the drug manufacturer in this case. That 6 7 8 9 case specifically addressed a public right to view the execution process. That principle does not expand to encompass a First Amendment right to compel the government to disclose information about execution drugs beyond that already provided here. 10 11 The same analysis applies to the other categories of information Wood seeks. 12 The Department of Corrections has stated that the qualifications of its execution team 13 personnel have not changed since prior litigation, Towery v. Brewer, No. 2:12-CV-245- 14 15 NVW, and that it developed its two-drug protocol based on declarations and testimony 16 in the Ohio litigation. (Doc. 11, Ex. F.) Declining to provide additional information does 17 18 not violate the First Amendment. 19 In addition, the undisclosed information does not have the practical import 20 necessary to warrant a preliminary injunction even if there were a theoretical basis for 21 22 it. At oral argument, Wood could not articulate any particular significance to the 23 identity of the drug manufacturer beyond an abstract right to the information and its 24 purported usefulness to public debate. (See Doc. 19 at 9–11.) The usefulness of the 25 26 27 identity of the manufacturer to public debate on the death penalty is attenuated. The real effect of requiring disclosure, however, is to extend the pressure on qualified 28 13 1 suppliers not to supply the drugs, as has happened in the past. See Landrigan v. Brewer, 2 3 625 F.3d 1132, 1143 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing 4 en banc). That purpose carries no weight in favor of compelled disclosure by the 5 equitable remedy of a preliminary injunction. Indeed, the weight it carries is against 6 7 8 disclosure. The state has a legitimate interest in getting the drugs from legal sources, which would be impeded by disclosure of the source. (Id.) 9 Next, the specific qualifications of the execution personnel is of little 10 11 significance because the protocol states the levels of qualification needed and there is no 12 challenge to the Defendants’ assertion that those qualifications have been met. Also, 13 the detail of information Wood requests might in fact become “identifying” 14 15 information. That result is only a possibility on this sparse record. But the possibility 16 alone weighs against disclosure when nothing specific weighs in favor. 17 Finally, the manner in which the Department of Corrections developed its 18 19 protocol is less important than the protocol itself. The protocol must withstand 20 constitutional scrutiny if challenged, however it was arrived at. Wood does not 21 22 challenge the substance of the protocol on this motion. The absence of specific, 23 articulated value of the information to Wood cuts against suspension of the state court 24 processes to get it. 25 26 27 / / / / / / 28 14 1 CONCLUSION 2 3 For the reasons set forth above, Plaintiff’s claim of First Amendment right of 4 access to governmental proceedings is not likely to succeed on the merits, not for the 5 ends to which it is asserted here. Winter, 555 U.S. at 20. Nor are there serious questions 6 7 8 9 going to the merits of the claim. Cottrell, 632 F.3d at 1135. Under Winter or the Ninth Circuit’s sliding-scale test, “if a plaintiff fails to show that he has some chance on the merits, that ends the matter.” Developmental Services 10 11 Network v. Douglas, 666 F.3d 540, 544 (9th Cir. 2011) (citing Global Horizons, Inc. v. 12 U.S. Dep’t of Labor, 510 F.3d 1054, 1058 (9th Cir. 2007)); see Doe v. Reed, 586 F.3d 13 671, 681 n.14 (9th Cir. 2009) (“Because we conclude that Plaintiffs have failed to 14 15 satisfy the first Winter factor—likelihood of success on the merits—we need not 16 examine the three remaining Winter factors.”). 17 18 19 20 Therefore, Wood has not “by a clear showing, carried the burden of persuasion” on his motion for a preliminary injunction. Mazurek, 520 U.S. at 972. IT IS THEREFORE ORDERED that Plaintiff Wood’s Motion for Preliminary 21 22 23 Injunction or Temporary Restraining Order (Doc. 11) is DENIED. Dated this 10th day of July, 2014. 24 25 26 27 28 15

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