McGehee et al v. Hutchinson et al
ORDER granting in part and denying in part 26 defendants' motion to dismiss. Signed by Judge Kristine G. Baker on 4/15/2017. (thd)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
JASON MCGEHEE, et al.
Case No. 4:17-cv-00179 KGB
ASA HUTCHINSON, et al.
Plaintiffs Jason McGehee, Stacey Johnson, Marcel Williams, Kenneth Williams, Bruce
Ward, Ledell Lee, Jack Jones, Don Davis, and Terrick Nooner are inmates currently serving on
death row in Arkansas.
They bring this 42 U.S.C. § 1983 action against defendants Asa
Hutchinson, who is sued in his official capacity as Governor of Arkansas, and Wendy Kelley, who
is sued in her official capacity as Director of the Arkansas Department of Correction (“ADC”), to
challenge various aspects of their impending executions. 1 This Court has jurisdiction under 28
U.S.C. §§ 1331.
Before the Court is defendants’ motion to dismiss (Dkt. No. 26). Plaintiffs have responded
to defendants’ motion (Dkt. No. 31). Defendants move to dismiss many of plaintiffs’ claims based
on legal arguments that do not go to the actual merits of the claims, such as res judicata and
The Court denies these arguments for two reasons.
First, and most
importantly, the Court finds that this action is not barred by res judicata and collateral estoppel
under Arkansas law. Second, the relief plaintiffs seek here is equitable relief. It would be
1 Governor Hutchinson has not set an execution date for Mr. Nooner. Mr. McGehee is
scheduled to be executed on April 27, 2017; however, his execution was stayed in a separate action
before the United States District Court for the Eastern District of Arkansas. See Lee v. Hutchinson¸
No. 4:17-cv-00194 (E.D. Ark. Apr. 6, 2017) (order granting in part, denying in part, and holding
in abeyance in part plaintiffs’ motion for a preliminary injunction).
inequitable under the circumstances for this Court to dismiss this case without hearing evidence
on whether the state’s intended use of midazolam would violate the Eighth Amendment. The
circumstances are that, within the past week, a “circuit split” appears to have developed on this
very issue. See In re Ohio Execution Protocol, No. 17-3076, 2017 WL 1279282, at *11-15 (6th
Cir. Apr. 6, 2017); Arthur v. Comm’r, Alabama Dep’t of Corr., 840 F.3d 1268, at 1300 (11th Cir.
2016), cert. denied sub nom. Arthur v. Dunn, 137 S. Ct. 725 (2017). At issue is the method the
state of Arkansas will use to execute plaintiffs. As the Supreme Court simply put it, because
“execution is the most irremediable and unfathomable of penalties . . . death is different.” Ford v.
Wainwright, 477 U.S. 399, 411 (1986). This weighs in favor of hearing plaintiffs’ claims. It does
not mean that, on the merits, plaintiffs have “a significant possibility of success” on their claims.
Jones v. Hobbs, 604 F.3d 580, 581 (8th Cir. 2010) (internal quotation marks omitted) (quoting Hill
v. McDonough, 547 U.S. 573, 584 (2006)). For the claims that survive defendants’ motion to
dismiss, that legal analysis and determination are in this Court’s Preliminary Injunction Order.
For these and the following reasons, the Court grants in part and denies in part defendants’
motion to dismiss (Dkt. No. 26).
The following alleged facts are taken from plaintiffs’ complaint and its attachments (Dkt.
No. 2-2). The statements made in plaintiffs’ complaint are allegations, not proven facts. However,
at this stage of the proceedings, the Court must accept all allegations contained in the complaint
as true, and the Court must draw all reasonable inferences from the complaint in favor of the
plaintiffs, the nonmoving parties. See Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir.
2001) (“When ruling on a motion to dismiss, the district court must accept the allegations contained
in the complaint as true and all reasonable inferences from the complaint must be drawn in favor
of the nonmoving party.”). Therefore, for the purposes of this Order, the Court will present
plaintiffs’ allegations as if they are proven facts.
On February 24, 2017, Governor Hutchinson set execution dates for each of the plaintiffs,
excluding Mr. Nooner. Mr. Davis and Mr. Ward are currently scheduled to be executed on April
17, 2017; Mr. Johnson and Mr. Lee on April 20, 2017; Mr. Jones and Marcel Williams on April
24, 2017; and Mr. McGehee and Kenneth Williams on April 27, 2017. Since the 1976 Supreme
Court decision in Gregg v. Georgia, 428 U.S. 153 (1976), no state has carried out eight executions
in 11 days. 2 No state has attempted as many as eight executions in a month since 1997. It has
been 27 years since a state successfully executed two people on the same day. In 2014, the state
of Oklahoma attempted to execute two people on the same day, but state officials canceled the
second execution after complications arose in the first.
On at least one occasion, Governor Hutchinson stated that he “scheduled the executions so
as to exhaust the State’s supply of midazolam before it expires” (Dkt. No. 2-2, ¶ 22). Arkansas
Code Annotated § 5-4-617 provides that lethal injection is the appropriate method of execution
and that the ADC shall select one of two options for a lethal-injection protocol, depending on the
availability of the drugs: (1) a barbiturate; or (2) midazolam, followed by vecuronium bromide,
followed by potassium chloride. Director Kelley adopted a written and largely undisclosed lethalinjection protocol for executions using midazolam, which the ADC intends to follow for plaintiffs’
executions. “The entirety of Plaintiffs’ knowledge about the midazolam protocol is encompassed
in a public document known as ‘Attachment C[,]’” which is attached as an exhibit to the complaint
2 In their complaint, plaintiffs state that the executions are scheduled to take place over 10
days, but they are actually scheduled to be held over 11 days, with the first executions being
scheduled for April 17, 2017, and the last being scheduled for April 27, 2017.
(Dkt. No. 2-2, ¶ 10). On March 10, 2017, counsel for plaintiffs sent a letter with an attached
Freedom of Information Act request to Jim DePriest, ADC’s General Counsel, requesting
additional information and documents pertaining to the ADC’s execution protocol (Id., at 72-74).
On March 15, 2017, Mr. DePriest responded to plaintiffs’ counsel by letter and stated that there
were no additional records, beyond Attachment C (“Arkansas Midazolam Protocol”), that were
responsive to counsel’s request, and that if there were records, they would be exempt from
disclosure (Id., at 75-77).
The Arkansas Midazolam Protocol, which was last revised on August 6, 2015, provides
that plaintiffs will be executed by receiving successive injections of 500 milligrams (“mg”) of
midazolam, 100 mg of vecuronium bromide, and 240 milliequivalents (“mEq”) of potassium
chloride. The Arkansas Midazolam Protocol provides that, after the midazolam is injected, but
before the injection of vecuronium bromide, the ADC’s Deputy Director, or his or her designee,
must determine whether the inmate is unconscious by using “all necessary and medicallyappropriate methods” (Dkt. No. 2-2, Exhibit 1, at 70). If the Deputy Director, or his or her
designee, determines that the prisoner is unconscious, the vecuronium bromide and potassium
chloride are administered. If the inmate is not unconscious, the Arkansas Midazolam Protocol
provides that an additional 500 mg of midazolam will be administered. After the additional
midazolam is administered, the Deputy Director, or his or her designee, conducts a second
consciousness check. If the prisoner is unconscious, the second and third drugs are administered.
The Arkansas Midazolam Protocol provides that the drugs will be administered by an
intravenous infusion device (“IV”). The IV lines must be set up by members of the “IV team,”
who must have at least two years of professional experience in at least one of the following fields:
emergency medical technician-intermediate; emergency medical technician-paramedic; nurse;
physician assistant; or physician. If issues with the IV lines arise, “the Deputy Director, or
designee, will direct the IV Team to suspend further action and thereafter summon trained,
educated, and experienced person(s) necessary to establish a primary IV line as a peripheral line
or as a central venous line” (Id., at 67).
“Botched” Midazolam Executions And State Responses
Plaintiffs identify what they characterize as four “botched” executions that have taken
place since 2014.
On January 16, 2014, Dennis McGuire was executed by the state of Ohio using a
two-drug combination of 10 mg midazolam and 40 mg hydromorphone. The execution took 25
minutes to complete, and Mr. McGuire reportedly moved, gasped, and made choking and snorting
sounds during the procedure.
On April 29, 2014, Clayton Lockett was executed by the state of Oklahoma using
a three-drug combination of 100 mg of midazolam followed by a paralytic and potassium chloride.
State officials halted the execution after Mr. Lockett awoke during administration of the second
and third drugs, but he died 40 minutes after the procedure commenced. After Oklahoma
attempted to abort Mr. Lockett’s execution, it canceled the execution of another man who was
scheduled to be executed the same day. After these events, the Oklahoma Department of Public
Safety concluded that executions should be spaced at least seven days apart.
On July 23, 2014, Joseph Wood was executed by the state of Arizona using a two-
drug combination of 750 mg midazolam and 750 mg hydromorphone. Mr. Wood’s execution
lasted two hours before he died, and Mr. Wood reportedly gasped and snorted during the execution.
On December 8, 2016, Ronald Bert Smith was executed by the state of Alabama
using a three-drug combination of 500 mg of midazolam, followed by 600 mg of rocuronium
bromide, followed by 240 mEq of potassium chloride. Mr. Smith’s execution lasted approximately
34 minutes, and Mr. Smith reportedly struggled for breath as he heaved and coughed for
approximately 13 minutes. Mr. Smith’s attorney, Spencer Hahn, who was present at the execution,
[T]wo minutes after the midazolam began flowing, Smith began having “regular
asthmatic-sounding barking coughs every ten seconds or so.” “He also lifted his
head and looked around, moved his arms, clenched his left hand, and moved his
lips in what appeared to be an attempt to say something. [His] eyes never closed,
and he moved and coughed regularly throughout approximately the next fifteen
minutes.” Smith was awake after the first consciousness check, “as he was still
moving his head, hands and arms, coughing, and attempting to speak.” After the
second consciousness check, Smith’s “eyes remained open” (despite a guard’s
attempt to push his left eye closed), and Smith “moved his right arm.” “Shortly
thereafter, they must have administered the paralytic, as [Smith’s] breathing
became very shallow and he stopped moving. His eyes remained open, with the
left eye opening further as his breathing became imperceptible.”
(Dkt. No. 2-2, ¶ 15).
Some states have abandoned the use of midazolam in executions: Kentucky banned the
use of midazolam in lethal injection in 2014; Arizona recently agreed to never use midazolam as
an execution drug again; and Florida eliminated midazolam from its most recent execution
protocol (Id., ¶ 16).
Arkansas’s Supply of Drugs For Lethal Injection
Arkansas law provides that drugs used in lethal injection shall be:
(1) Approved by the United States Food and Drug Administration and made by a
manufacturer approved by the United States Food and Drug Administration;
(2) Obtained from a facility registered with the United States Food and Drug
(3) Obtained from a compounding pharmacy that has been accredited by a national
organization that accredits compounding pharmacies.
Ark. Code Ann. § 5-4-617(d).
Director Kelley obtained the ADC’s supply of midazolam sometime in the summer of
2015, and its expiration date is April of 2017. Director Kelley obtained the ADC’s supply of
vecuronium bromide in July of 2016, and its expiration date is March 1, 2018. Director Kelley
obtained the ADC’s supply of potassium chloride in March of 2017, and its expiration date is
Director Kelley tested the ADC’s supply of midazolam in November of 2015 and provided
plaintiffs with a redacted report showing the midazolam was sufficiently potent at that time.
Director Kelley tested the current supply of vecuronium bromide in July of 2016, but she has not
provided plaintiffs with any record of the results. Plaintiffs do not know if Director Kelley has
tested the ADC’s supply of potassium chloride.
Policies Governing The Execution
Mr. DePriest informed plaintiffs’ counsel that, if a plaintiff has more than one attorney, the
ADC would allow only one attorney to witness the execution. Plaintiff’s attorney will not have
access to a phone while witnessing the execution. Should the attorney leave to gain access to a
phone, then the attorney will not be permitted to return to the viewing room. Director Kelley
refused to provide plaintiffs with a current copy of the ADC’s execution policies, but plaintiffs
acquired an earlier version of the policy, dated May 22, 2008, which placed no restrictions on
attorney viewing or phone access during the execution. Under the current execution policy,
witnesses, including counsel, are not permitted to view the execution until the IV lines have been
affixed to the prisoner and the drugs are ready to flow. Execution team members have discretion
to pull a curtain during drug flow in the event of a problem, and counsel cannot view events in the
execution chamber when the curtain is pulled. Counsel cannot hear anything in the execution room
during the execution, as audio to the witness room is turned off after the inmate’s last words.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “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. (citing Twombly,
550 U.S. at 556). “While a complaint attacked by a [Federal] Rule [of Civil Procedure] 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration
in original) (citations omitted). “When ruling on a motion to dismiss, the district court must accept
the allegations contained in the complaint as true and all reasonable inferences from the complaint
must be drawn in favor of the nonmoving party.” Young, 244 F.3d at 627. In determining the
sufficiency of a complaint, courts review the complaint itself and any exhibits attached to the
complaint. Zink v. Lombardi, 783 F.3d 1089, 1099 (8th Cir.) (en banc), cert. denied, 135 S. Ct.
2941 (2015) (citing Meehan v. United Consumers Club Franchising Corp., 312 F.3d 909, 913 (8th
Plaintiffs bring seven claims against Governor Hutchinson and Director Kelley and seek
declaratory and injunctive relief. 3 Governor Hutchinson and Director Kelley move to dismiss all
of plaintiffs’ claims under the Eleventh Amendment (Dkt. No. 27, at 21).
Mr. Nooner, who does not have a scheduled execution date at this time, joins in some,
but not all of plaintiffs’ claims.
Amendment confirms the sovereign status of the States by shielding them from suits by individuals
absent their consent.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (citing Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)). However, “[t]o ensure the enforcement of federal
law . . . the Eleventh Amendment permits suits for prospective injunctive relief against state
officials acting in violation of federal law.” Id. (emphasis added) (citing Ex parte Young, 209 U.S.
123 (1908)). “A state official is amenable to suit to enjoin the enforcement of an unconstitutional
state statute only if the officer has ‘some connection with the enforcement of the act.’” Digital
Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 960 (8th Cir. 2015) (citing Ex Parte
Young, 209 U.S. at 157).
To determine whether an action against state officials in their official capacities avoids an
Eleventh Amendment bar to suit, “a court need only conduct a ‘straightforward inquiry into
whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.’” Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535
U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)
(O’Connor, J., concurring). In this case, plaintiffs seek declaratory relief that the state’s execution
schedule, execution protocol, and other execution policies violate federal law (Dkt. No. 2-2, at 6163). They also seek preliminary and permanent injunctive relief that would enjoin the state from
proceeding with their impending executions (Id.). Plaintiffs’ prayer for relief “clearly satisfies [the
Court’s] ‘straightforward inquiry.’” Verizon Maryland, Inc., 535 U.S. at 645.
Furthermore, Governor Hutchinson and Director Kelley, who are sued in their official
capacities, are amenable to suit in this action. Plaintiffs allege, and defendants do not dispute, that
Director Kelley is statutorily responsible for: (1) ordering the dispensation and administration of
the drug or drugs for the purpose of carrying out the lethal-injection procedure; (2) conducting an
execution for a sentence of death or designating some assistant or assistants to do so; and (3)
developing logistical procedures necessary to carry out the sentence of death (Dkt. No. 2-2, ¶ 6).
Plaintiffs allege, and defendants do not dispute, that Governor Hutchinson is statutorily responsible
for setting execution dates, and that he has the power to suspend the execution of a judgment of
death (Id., ¶ 7). Therefore, Director Kelley and Governor Hutchinson can be sued for prospective
injunctive and declaratory relief in this action, as they have “‘some connection with the
enforcement of the act.’” Digital Recognition Network, Inc., 803 F.3d at 960 (citing Ex Parte
Young, 209 U.S. at 157).
Governor Hutchinson and Director Kelley also move to dismiss each of plaintiffs’
individual claims for specific reasons. The Court will separately address each claim.
Claim One: Execution Schedule And The Right To Counsel Under 18
U.S.C. § 3599
Counsel for the plaintiffs were appointed pursuant to 18 U.S.C. § 3599, 4 which provides,
in relevant part:
Notwithstanding any other provision of law to the contrary, in every criminal action
in which a defendant is charged with a crime which may be punishable by death, a
defendant who is or becomes financially unable to obtain adequate representation
or investigative, expert, or other reasonably necessary services at any time either
(A) before judgment; or
(B) after the entry of a judgment imposing a sentence of death but before
the execution of that judgment;
shall be entitled to the appointment of one or more attorneys and the furnishing of
such other services in accordance with subsections (b) through (f).
18 U.S.C. § 3599(a)(1).
See Dkt. No. 1, ¶¶ 36-44.
Plaintiffs allege that § 3599 guarantees them the right to “effective representation of
counsel” and that the state’s compressed execution schedule denies plaintiffs this right (Dkt. No.
2, ¶ 32). 5 Plaintiffs argue that the compressed execution schedule creates an intolerably-high risk
of undermining the effectiveness of their representation, thereby “drain[ing] all meaning from §
3599 and the orders of appointment entered by the federal courts.” (Dkt. No. 4, at 10). Plaintiffs
assert that they are likely to succeed on their claim that the schedule “violates their right to endstage counsel under §3599,” thereby justifying this Court’s issuance of a preliminary injunction
(Dkt. No. 4, at 10).
With respect to the claim arising under § 3599, defendants posit four arguments in support
of their motion to dismiss (Dkt. No. 26). First, defendants argue that § 3599 does not authorize
actions brought under 42 U.S.C. § 1983. Second, defendants argue that § 3599 does not afford a
protected right to effective assistance of counsel. Third, defendants argue, in the alternative, that
any claim for such a putative right is not ripe. Fourth, also in the alternative, defendants argue that
plaintiffs are not in fact suffering from ineffective assistance of counsel (Dkt. No. 27, at 23-24).
The Court will address each contention in turn.
Whether § 3599 Authorizes Actions Under 42 U.S.C. § 1983
Where the construction of a statute is at issue, “our analysis begins, as always, with the
statutory text.” Argus Leader Media v. U.S. Dept. of Agric., 740 F.3d 1172, 1175 (8th Cir. 2014)
(quoting United States v. Gonzales, 520 U.S. 1, 4 (1997)). For purposes of the present action, the
most pertinent provision of the statute is subsection (e):
Unless replaced by similarly qualified counsel upon the attorney’s own motion or
upon motion of the defendant, each attorney so appointed shall represent the
defendant throughout every subsequent stage of available judicial proceedings,
including pretrial proceedings, trial, sentencing, motions for new trial, appeals,
Mr. Nooner does not join this claim (Dkt. No. 2-2, at 12).
applications for writ of certiorari to the Supreme Court of the United States, and all
available post-conviction process, together with applications for stays of executions
and other appropriate motions and procedures, and shall also represent the
defendant in such competency proceedings and proceedings for executive or other
clemency as may be available to the defendant.
18 U.S.C. § 3599(e) (emphasis added).
In Harbison v. Bell, the Supreme Court engaged in a thorough interpretation of § 3599.
556 U.S. 180 (2009). While the holding concerns the availability of counsel for state clemency
proceedings, this Court finds much of the statutory construction analysis in Harbison to be
applicable to resolution of the present action. “Under a straightforward reading of the statute,
subsection (a)(2) triggers the appointment of counsel for habeas petitioners, and subsection (e)
governs the scope of appointed counsel’s duties.” Harbison, 556 U.S. at 185. “Subsection (a)(2)
refers to state litigants, and it in turn provides that subsection (e) applies to such litigants.” Id. at
“Subsection (e) emphasizes continuity of counsel.” Id. at 193. “It is entirely plausible that
Congress did not want condemned men and women to be abandoned by their counsel at the last
moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.”
Id. at 194 (quoting Hain v. Mullin, 436 F.3d 1168, 1175 (10th Cir. 2006) (en banc) (internal
quotations omitted)). “In authorizing federally funded counsel to represent their state clients in
clemency proceedings, Congress ensured that no prisoner would be put to death without
meaningful access to the ‘fail-safe’ of our justice system.” Harbison, 556 U.S. at 194 (quoting
Herrera v. Collins, 506 U.S. 390, 415 (1993)).
The first issue to be addressed is defendants’ jurisdictional claim. Defendants appear to
contend that plaintiffs fail to state a claim because actions arising under § 1983 are not authorized
by § 3599. Defendants contend that counsel appointed under § 3599 are “only authorized to
represent prisoners in criminal, habeas, and clemency proceedings in federal court” (Dkt. No. 27,
at 24-26). Defendants emphasize the language of subsection (a)(1), which provides that a
defendant shall be entitled to appointment of an attorney in “every criminal action in which a
defendant is charged with a crime which may be punishable by death.” 18 U.S.C. § 3599(a)(1).
This Court notes that the statute expressly authorizes civil actions arising under 28 U.S.C. §§ 2254
or 2255. See 18 U.S.C. § 3599(a)(2). Also, as Harbison makes clear, § 3599 authorizes
representation in non-judicial proceedings such as state clemency proceedings. 556 U.S. at 194.
The Supreme Court has ratified the use of 42 U.S.C. § 1983, as compared to petitions for
habeas corpus under 28 U.S.C. §§ 2254 or 2255, as an appropriate proceeding to seek a stay of
execution based on the allegation that a method of lethal injection employed by a State would
violate the Eighth Amendment. See generally Hill v. McDonough, 547 U.S. 573 (2006). The
unanimous court in Hill discussed the scope of § 1983 in the context of a request for a stay of
Filing an action that can proceed under § 1983 does not entitle the complainant to
an order staying an execution as a matter of course. Both the state and the victims
of crime have an important interest in the timely enforcement of a sentence. Our
conclusions today do not diminish that interest, nor do they deprive federal courts
of the means to protect it. We state again as we did in Nelson, that a stay of
execution is an equitable remedy. It is not available as a matter of right, and equity
must be sensitive to the State’s strong interest in enforcing its criminal judgments
without undue interference from federal courts. Thus, like other stay applicants,
inmates seeking time to challenge the manner in which the State plans to execute
them must satisfy all of the requirements for a stay, including showing a significant
possibility of success on the merits.
Hill, 547 U.S. at 583-584 (2006) (citing Nelson v. Campbell, 541 U.S. 637, 649-650 (2004)
(internal citations omitted)).
Moreover, this action is not forbidden by Heck v. Humphrey, which held that § 1983 does
not permit a prisoner to bring a cause of action challenging the constitutionality of his conviction
in a suit for damages under § 1983. 512 U.S. 477, 488 (1994). In Nelson, the Supreme Court
determined that an action arising under § 1983 is an appropriate proceeding to challenge an
execution protocol. 541 U.S. 637 (2004). “Here, as in Nelson, the action if successful would not
necessarily prevent the State from executing him by lethal injection.” Hill, 547 U.S. at 580 (citing
Nelson, 541 U.S. at 647). Consequently, “granting relief would not imply the unlawfulness of the
lethal injection sentence.” Hill, 547 U.S. at 580. In Glossip v. Gross, the Court reaffirmed that “a
method-of-execution claim must be brought under § 1983 because such a claim does not attack
the validity of a death sentence.” 135 S.Ct. 2726, 2738 (2015) (citing Hill, 547 U.S. at 573).
In support of dismissal, defendants rely upon Stevens v. Redwing for the general
proposition that “a pro se litigant has no statutory or constitutional right to have counsel appointed
in a civil case.” 146 F.3d 538, 546 (8th Cir. 1998) (citing Wiggins v. Sargent, 753 F.2d 663, 668
(8th Cir. 1985)). Such reliance is misplaced. In each case upon which defendants rely, a pro se
litigant sought the discretionary appointment of counsel in a civil action. Neither case cited by
defendants concerned the death penalty context. The Court does not construe these precedents as
foreclosing the plaintiffs’ ability to claim a right to counsel and to bring a § 1983 action seeking a
stay of execution under 18 U.S.C. § 3599.
Defendants ask this Court to confine the holding in Harbison to the state clemency context.
Defendants cite the rationale employed by the concurrence, which would foreclose § 3599’s
authorization of “a challenge to prison conditions.” Harbison v. Bell, 556 U.S. 180, 195 (2009)
(Roberts, C.J., concurring). However, this rationale was not adopted by the majority in Harbison
and does not bind this Court, and the Court does not construe the statute so narrowly. Instead, the
Court determines that, in enacting § 3599, Congress intended to provide end-stage counsel to
prisoners sentenced to death. See Harbison, 556 U.S. at 194.
“It is a settled rule of statutory construction that ‘we must, if possible, construe a statute to
give every word some operative effect.’” DeBough v. Shulman, 799 F.3d 1210, 1214 (8th Cir.
2015) (quoting Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167 (2004)). “We decline
to render part of a statute entirely superfluous.” Debough, 799 F.3d at 1214 (citing Knight v.
Commissioner, 552 U.S. 181, 190 (2008)). In the present action, each plaintiff was appointed
counsel to represent individuals sentenced to death “throughout every subsequent stage of
available judicial proceedings.” 18 U.S.C. § 3599(e). This subsection provides a list of such
available judicial proceedings that expressly contains both “executive or other clemency,”
“applications for stays of execution,” and “other appropriate motions and procedures.” In the light
of the Supreme Court’s decisions in Hill and Nelson, the Court determines that the present action
constitutes an “application for stay of execution” within the meaning of § 3599. It is unclear to
this Court how defendants’ proposed construction of the § 3599 would allow for a petitioner to
apply for a stay of execution other than in the habeas context, which is provided for elsewhere in
§ 3599. See 18 U.S.C. § 3599(a)(2). Moreover, defendants’ proposed construction would afford
no method for a petitioner to apply for a stay of execution during the course of the execution itself,
when a petitioner’s ability to seek such relief could be exercised only through counsel.
The balance of persuasive authority supports this Court’s interpretation. In their response
in opposition to the motion to dismiss, plaintiffs cite decisions from other circuits that authorize
plaintiffs to bring a § 1983 claim seeking a stay of execution pursuant to § 3599(e) (Dkt. No. 31,
at 5-6). 6 In Hooper v. Jones, the Tenth Circuit decided that § 3599(e) permitted the compensation
of appointed attorneys who pursued a lethal injection challenge under § 1983:
6 The Court notes that while the Fifth Circuit case cited by plaintiffs discusses § 3599 in
the context of a stay of execution, it does not make reference to the applicability of 42 U.S.C. §
1983. See generally Battaglia v. Stephens, 824 F.3d 470 (5th Cir. 2016).
We see no meaningful distinction, for jurisdictional purposes, between the question
of whether counsel’s CJA appointment encompassed and hence permitted
compensation for the pursuit of a lethal injection challenge under § 1983, and the
controversy in Harbison as to whether counsel’s CJA appointment encompassed
the pursuit of relief in a state clemency proceeding.
Hooper v. Jones, 536 Fed.Appx. 796, 799 (10th Cir. 2013).
In Hooper, the Tenth Circuit determined that counsel “pursued an appropriate procedure
seeking a stay of execution—a course that tracks the specific language in § 3599(e) identifying
judicial proceedings to which a CJA appointment properly extends.” 536 Fed.Appx. at 800
(emphasis in original). The Eleventh Circuit has also determined, albeit in dicta, that a right to
bring a § 1983 claim seeking a stay of execution is included in the right to counsel under § 3599.
Banks v. Secretary, Florida Dept. of Corrections, 647 Fed.Appx. 910, 913 n.4 (11th Cir. 2016)
(“[W]here a § 1983 is brought with or implicitly seeks a stay of execution, § 3599(e)’s express
reference to ‘stays of execution’ displaces the CJA Guidelines’ generic reference to § 1983 actions
to the extent that the latter would preclude all §1983 claims.”)). This Court adopts the sound
rationales of the Tenth and Eleventh Circuit opinions cited above. 7
During the evidentiary hearing in this matter, and in support of their construction of § 3599,
counsel for defendants cited two decisions from the Eastern District of Missouri. The first is Link
v. Luebbers, where the court held that a § 1983 suit did not constitute “other appropriate motions
and procedures” under § 3599. 830 F.Supp.2d 729 (E.D. Mo. 2011). This case addressed whether
attorneys for an executed capital defendant were authorized to be paid fees pursuant to their
appointment under § 3599. The Court declines to apply Link to the present action. The court in
Providing additional support for this Court’s determination, though not as binding
authority, the Eighth Circuit Court of Appeals has previously granted a motion for appointment of
counsel in a method-of-execution challenge brought under § 1983. See Johnson v. Lombardi, No.
15-3420, Amended Order (8th Cir. June 24, 2016).
Link addressed only whether a similar § 1983 action constituted an “other appropriate motion or
procedure” under § 3599.
Link does not address whether such an action constituted an
“application for stay of execution.” The Court determines that the present action is an application
for stay of execution for purposes of § 3599(e). See Hill, 547 U.S. at 583; see also Nelson, 541
U.S. at 649-650. Likewise, Winfield v. Steele, the other decision cited at the hearing by defendants,
does not guide the Court’s interpretation of § 3599. 2015 WL 1879545 (E.D. Mo. 2015).
Winfield, the court invited the United States to file a brief as amicus curiae to determine whether
§ 3599 permitted compensation to appointed counsel who brought a method-of-execution
challenge under § 1983. Id. at *3. The court did not reach a conclusion deciding the applicability
of § 3599 to a method-of-execution claim arising under § 1983. Id.
In sum, the determination of the applicability of § 3599 to the present action turns on
whether this action constitutes an “application for stay of execution” as provided by subsection
(e). With the holdings of the Supreme Court and Circuit Courts of Appeals in mind, the Court
concludes that the present action does. The Court determines that § 3599(e) authorizes appointed
counsel to bring a claim arising under § 1983 as an application for stay of execution.
Consequently, for purposes of the motion to dismiss, whether the plaintiffs have stated an adequate
claim upon which relief may be granted depends on whether there is a substantive right to counsel
protected by § 3599.
Whether § 3599 Affords a Right to Effective Assistance of
“Our cases establish that the right to appointed counsel extends to the first appeal of right,
and no further.” Pennsylvania v. Finley, 481 U.S. 551, 554 (1987). Where a prisoner in a postconviction proceeding has no constitutional right to counsel, then that prisoner “could not be
deprived of the effective assistance of counsel.” Wainwright v. Torna, 455 U.S. 586, 588 (1982).
“[I]t is the source of the right to a lawyer’s assistance, combined with the nature of the proceeding
that controls the constitutional question. In this case, respondent’s access to a lawyer is the result
of the State’s decision, not the command of the United States Constitution.” Finley, at 555-56. In
the present action, the source of this alleged right to the effective assistance of counsel is a statute
enacted by Congress, not the United States Constitution. See 18 U.S.C. § 3599. Therefore, if there
is a right to effective assistance to counsel created by § 3599, such a right must be a statutory—
rather than constitutional—right. Section 3599 by its terms does not expressly grant a litigant the
right to the effective assistance of appointed counsel. Thus, a plain reading of the statute seems to
foreclose plaintiffs’ right to the relief they seek. The only alternative basis for a right to the
effective assistance of counsel would be an implied right of action contained within the statutory
“In limited circumstances, courts may determine that ‘a private remedy is implicit in a
statute not expressly providing one.’” Great Lakes Gas Transmission Limited Partnership v. Essar
Steel Minnesota LLC, 843 F.3d 325, 329 (8th Cir. 2016) (quoting Cort v. Ash, 422 U.S. 66, 78
(1975)). To determine whether § 3599 creates an implicit cause of action, “the central inquiry [is]
whether Congress intended to create, either expressly or by implication, a private cause of action.”
Touche Ross & Co. v. Redington, 442 U.S. 560, 575 (1979). The plaintiffs cite Martel v. Clair for
the proposition that “in spinning off § 3599, Congress enacted a set of reforms to improve the
quality of lawyering in capital litigation.” 565 U.S. 648, 659 (2012). In this decision, the Supreme
Court noted that § 3599 “guarantees that indigent defendants in federal capital cases will receive
the assistance of counsel, from pretrial proceedings through stay applications.” Id., at 657. “[A]
statute need not draw the same lines as the Constitution.” Id., at 661. Rather, the object of the
inquiry in Martel was whether § 3599 provided a statutory right in the context of substitution of
counsel, provided for in subsection (e). In contrast with the relief sought in the present action, this
right to substitution of counsel is made explicit by the terms of the statute. 8 Indeed, this case
demonstrates the ability of Congress to provide a statutory right of action by the express terms of
the text. This Court determines that the express right to substitute counsel contemplated by §
3599(e) by the Supreme Court in Martel disfavors a finding of an implied right of action to the
effective assistance of counsel in § 3599(e).
In their response in opposition to the motion to dismiss, plaintiffs contend that the statutory
right to counsel embodied in § 3599 means the right to conflict-free counsel (Dkt. No. 31, at 6-8).
In support of this contention, plaintiffs cite Christenson v. Roper, where the Supreme Court granted
a stay of execution pending disposition of the prisoner’s motion for appointment of substitute
counsel pursuant to § 3599(e). 135 S. Ct. 891 (2015). Expounding on the “interests of justice”
standard articulated in Martel, in Christenson the Supreme Court reversed a decision denying the
motion for substitution of counsel under § 3599(e), where counsel’s arguments “were directly and
concededly contrary to their client’s interest, and manifestly served their own professional and
reputational interests.” 135 S. Ct. at 895. Christenson and Martel both apply to motions to
substitute counsel sought “in the interests of justice.” Here, the plaintiffs have not moved for
substitution of counsel, so it is not clear that either holding applies to their claim. The Court does
not interpret either Christenson or Martel to hold that § 3599 provides a statutory right to the
effective assistance of counsel.
8 Section 3599(e) provides for the substitution of counsel “upon the attorney’s own motion
or upon motion of the defendant.” In Martel, the issue before the Court was which standard to
apply with respect to resolving the motion for substitution of counsel. The Court ultimately
determined that the district court did not abuse its discretion in denying the habeas petitioner’s
motion to substitute.
In construing § 3599(e) the Court in Martel also expressed its “prefer[ence] to copy
something familiar than concoct something novel.” 565 U.S. at 660. Such a preference “enables
courts to rely on experience and precedent, with a standard already known to work effectively.”
Id., at 661. Faced with a dearth of controlling precedent interpreting whether § 3599 guarantees a
right to effective assistance of counsel, this Court opts to look to analogous statutory or procedural
rights vested in state law for guidance on how to resolve this inquiry.
“There is no constitutional right to an attorney in state post-conviction proceedings.”
Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citing Finley, 481 U.S., at 554)). Applying
Finley in an analogous context, the Eighth Circuit determined that “a state’s decision to grant a
right to counsel in post-conviction proceedings does not give rise to a due process claim if counsel
performs deficiently.” Simpson v. Norris, 490 F.3d 1029, 1034 (8th Cir. 2007). At issue before
the Eighth Circuit in Simpson was Arkansas Rule of Criminal Procedure 37.5, which required the
state to appoint an attorney to represent a capital defendant in post-conviction proceedings. Id., at
1032. In briefing on this point, neither party explains why the Court should analyze the statutory
rights granted by § 3599 as meaningfully distinguishable from those afforded by analogous state
procedures. The Court does not see good cause to do so.
For the reasons stated above, this Court declines to infer such a right of action from the
statutory text of § 3599. Consequently, the Court holds that § 3599 does not afford a prisoner,
though entitled to appointment of counsel pursuant to its provisions, a statutory right to the
effective assistance of that counsel. There being no constitutional or statutory right to the effective
assistance of counsel pursuant to § 3599, the Court determines that Claim I does not adequately
state a claim upon which relief may be granted. Therefore, the Court grants defendants’ motion
to dismiss with respect to Claim I. Because the Court dismisses plaintiffs’ Claim I for these
reasons, the Court declines to reach the parties’ other arguments regarding this claim, including
whether the claim is ripe for adjudication and whether plaintiffs suffer from ineffective assistance
Claim Two: Execution Schedule And The Eighth Amendment
In their second claim for relief, plaintiffs argue that the “compressed schedule” of their
executions violates the Eighth Amendment’s prohibition of cruel and unusual punishment (Dkt.
No. 2-2, at 25).
Plaintiffs contend that the execution schedule set by Governor Hutchinson
violates the Eighth Amendment under the Supreme Court’s “evolving standards of decency” test
(Id., at 33). They also argue that the compressed scheduling of eight executions in 11 days “poses
an unnecessary and objectively intolerable risk of substantial harm that is sure or very likely to
occur[,]” and that, “[i]f Defendants proceed with this schedule, they are doing so in deliberate
indifference to Plaintiffs’ constitutional rights” (Id., at 26; 29). Governor Hutchinson and Director
Kelley move to dismiss this claim for three reasons. Each will be discussed in turn.
Governor Hutchinson and Director Kelley argue that the Court must dismiss this claim
because “[t]he Prisoners each lack standing to pursue their Eighth-Amendment claim that the
scheduling of other executions near in time to their own violates the Eighth Amendment’s evolving
standards of decency” (Dkt. No. 27, at 34-35) (emphasis in original). They contend that “[t]he
Eighth Amendment is concerned only with each individual Prisoner’s personal right to be free
from cruel and unusual punishment, which has nothing to do with any other executions or other
facts in the broader world that are not directly relevant to an individual Prisoner’s execution” (Id.,
at 35-36). According to Governor Hutchinson and Director Kelley, “[a] complaint that the State
Mr. Nooner does not join this claim (Dkt. No. 2-2, at 25).
should not be putting multiple people to death within days of each other is exactly the type of
generalized grievance that does not give rise to Article III standing” (Id., at 35).
Defendants’ challenge to standing appears to be limited to plaintiffs’ evolving standards of
decency argument; defendants do not appear to argue that plaintiffs lack standing to the extent that
plaintiffs contend that the compressed execution schedule presents an objectively intolerable risk
of serious harm that is sure or very likely to occur. Therefore, the Court will limit its standing
analysis to the plaintiffs’ evolving standards of decency claim.
“Article III, § 2, of the Constitution restricts the federal ‘judicial [p]ower’ to the resolution
of ‘Cases’ and ‘Controversies.’” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269,
273 (2008). Plaintiffs have the burden of establishing that they have standing. Id. To demonstrate
that they have “Article III” standing, plaintiffs must demonstrate:
(1) [A]n injury in fact (i.e., a “concrete and particularized” invasion of a “legally
protected interest”); (2) causation (i.e., a “‘fairly . . . trace[able]’” connection
between the alleged injury in fact and the alleged conduct of the defendant); and
(3) redressability (i.e., it is “‘likely’” and not “merely ‘speculative’” that the
plaintiff’s injury will be remedied by the relief plaintiff seeks in bringing suit).
Id. at 273-74 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
In addition to the three “irreducible constitutional minimum” requirements of Article III
standing, Lujan, 504 U.S. at 560, courts weigh other “prudential” considerations in determining
whether plaintiffs have standing. United States v. Windsor, 133 S. Ct. 2675, 2685 (2013)
(explaining the distinction between “the jurisdictional requirements of Article III and the
prudential limits on its exercise”).
The Court finds that plaintiffs have standing to bring their claim that the compressed
execution schedule violates their rights under the Eighth Amendment. 10 The second and third
elements of Article III standing are easily satisfied: the cause of the alleged injury is fairly traced
to Governor Hutchinson’s decision to schedule plaintiffs’ executions, and plaintiffs’ injury would
be remedied by an Order from this Court granting an injunction that prevents their executions from
occurring on the defendants’ proposed schedule.
The Court also finds that plaintiffs can
demonstrate a concrete and particularized invasion of a legally-protected interest. This is not a
generalized grievance because the alleged harm is particular to the eight plaintiffs scheduled for
execution, rather than harm “shared in substantially equal measure by all or a large class of
citizens.” Warth v. Seldin, 422 U.S. 490, 499 (1975). This also is not a case where plaintiffs are
resting their “claim[s] to relief on the legal rights or interests of third parties.” Id. While plaintiffs
share the same alleged injury, they bring this action to seek to redress the alleged imminent injury
that they each will suffer individually.
Plaintiffs have Article III standing to bring their evolving standards of decency claim based
on the compressed execution schedule. Governor Hutchinson and Director Kelley do not raise any
prudential standing considerations that would bar consideration of plaintiffs’ claims. Therefore,
the Court finds that plaintiffs, excluding Mr. Nooner and potentially Mr. McGehee, have standing
to bring this claim.
Evolving Standards Of Decency
Governor Hutchinson and Director Kelley argue that, even if plaintiffs have standing, they
“fail to state a claim that the execution schedule violates evolving standards of decency under
10 Mr. McGehee’s claim may become moot if defendants do not appeal Judge Marshall’s
Order granting Mr. McGehee a stay of execution or if Judge Marshall’s decision is affirmed on
the Eighth Amendment” (Dkt. No. 27, at 39). Plaintiffs contend that executing eight men in 11
days violates the Eighth Amendment because it is “contrary to evolving standards of human
decency” (Dkt. No. 2-2, ¶ 76). In support of this claim, plaintiffs allege that “no state (apart from
Oklahoma’s failed attempt in 2014, which in itself is a cautionary tale) has conducted multiple
executions in one day in seventeen years. And no state in modem history has attempted to execute
so many men in such a short time period” (Id., ¶ 92). They note that the Missouri Supreme Court
recently adopted a rule providing that the state’s “department of corrections shall not be required
to execute more than one warrant of execution per month” (Id., ¶ 91) (citing Mo. S. Ct. R. 30.30(f)).
Plaintiffs conclude that “[o]ur country does not participate in mass executions. Execution
schedules such as the one Defendants contemplate do not respect the innate human dignity of the
Defendants contend that plaintiffs’ evolving standards of decency claim:
[R]uns headlong into an insurmountable obstacle—the “evolving standards of
decency that mark the progress of a maturing society” protected by the Eighth
Amendment under Estelle v. Gamble, 429 U.S. 97, 102 (1976) is personal and
unique to the individual capital defendant to be executed and has nothing to do with
surrounding circumstances such as whether other capital defendants are scheduled
to be executed or not. . . . [S]urrounding and fully extraneous circumstances such
as whether other capital defendants are scheduled to be executed are completely
irrelevant to the inquiry.
(Dkt. No. 27, at 36-37). Defendants also offer information from the searchable execution database
on the website for the Death Penalty Information Center, which they argue undermines plaintiffs’
“bare assertion that states have rarely held multiple executions on the same day or on consecutive
days or in the same week” (Id., at 37). They urge the Court to take judicial notice of this
information so that it may be considered at the motion to dismiss stage (Id.).
The Court finds that defendants’ interpretation of the Supreme Court’s evolving standards
of decency cases is too narrow. On multiple occasions, the Court has considered our nation’s
evolving standards of decency to hold that the death penalty cannot be imposed upon classes of
offenders. See Roper v. Simmons, 543 U.S. 551, 568–69 (2005) (holding that the death penalty
may not be imposed on juvenile offenders); Ford, 477 U.S. at 410 (“The Eighth Amendment
prohibits the State from inflicting the penalty of death upon a prisoner who is insane.”). Therefore,
while the Court has serious doubts about this claim, which the Court will address in its Order on
plaintiffs’ motion for a preliminary injunction, the Court denies defendants’ motion to dismiss this
Method Of Execution
Governor Hutchinson and Director Kelley argue that, to the extent that plaintiffs claim that
the compressed schedule of their executions is an impermissible method of execution, plaintiffs
fail to state a claim (Dkt. No. 27, at 43). Two Supreme Court decisions control the Court’s analysis
of this claim. In Baze v. Rees, 553 U.S. 35 (2008), the controlling opinion states that, to challenge
successfully a state’s lethal injection protocol under the Eighth Amendment, a condemned prisoner
must: (1) “establish that the State’s lethal injection protocol creates a demonstrated risk of severe
pain[;]” and (2) “show that the risk is substantial when compared to the known and available
alternatives.” Baze, 553 U.S. at 61. In Glossip v. Gross, 135 S. Ct. 2726, reh’g denied, 136 S. Ct.
20 (2015), the Court reaffirmed that “[t]he controlling opinion in Baze outlined what a prisoner
must establish to succeed on an Eighth Amendment method-of-execution claim.” Glossip, 135 S.
Ct. at 2737.
Defendants argue that plaintiffs’ complaint fails to contain sufficient factual allegations to
state a method of execution claim based solely on the compressed execution schedule.
Specifically, defendants assert that the plaintiffs fail to plead sufficient facts to state the first prong
of Baze/Glossip: that the compressed execution schedule “creates an objectively intolerable risk
of substantial harm that is sure or very likely to occur” (Dkt. No. 27, at 39-40). Citing three cases
from the Eighth Circuit Court of Appeals, defendants argue that “[b]inding precedent forecloses
the Prisoners’ speculative Eighth-Amendment challenge against the execution schedule” (Id., at
40) (citing Zink v. Lombardi, 783 F.3d 1089, 1100-03 (8th Cir. 2015); Clemons v. Crawford, 585
F.3d 1119, 1125-27 (8th Cir. 2009); Taylor v. Crawford, 487 F.3d 1072, 1080 (8th Cir. 2007)).
In Zink v. Lombardi, the Eighth Circuit found that plaintiffs’ second-amended complaint,
which challenged Missouri’s use of compounded pentobarbital in its lethal injection protocol,
failed to state an Eighth Amendment claim because the prisoners “failed to include factual
allegations . . . which permit the reasonable inference that Missouri's lethal-injection protocol is
‘sure or very likely’ to create a substantial risk of severe pain.” Zink, 783 F.3d at 1102 (emphasis
in original). In their second amended complaint, the prisoners in Zink identified four potential
risks that they claimed “could result from the State’s use of compounded pentobarbital.” Id., at
1099. First, they alleged that the compounded pentobarbital could be sub-potent, which “could
fail to cause the death of the prisoner, leaving him unconscious with a lower rate of respiration,
causing irreversible brain damage[;]” or super-potent, which “could result in suffocation and
difficulty breathing before losing consciousness.” Id., at 1099-100. Second, they alleged that
compounded pentobarbital “could easily be contaminated with allergens, toxins, bacteria, or
fungus” and “that the injection of pentobarbital so contaminated could cause a painful allergic
reaction in the blood.” Id. at 1100. Third, they alleged “that foreign particles could contaminate
the compounded pentobarbital, creating the risk that a prisoner could experience serious pain upon
injection or could suffer from a pulmonary embolism.” Id. Fourth, they alleged that “the drug
may not maintain the proper pH, potentially resulting in numerous complications, most notably
severe burning upon injection or a pulmonary embolism.” Id. The prisoners also alleged that
“improper storage of the pentobarbital and use beyond its expiration date could exacerbate the
potential for these harms.” Id. The Eighth Circuit found that these allegations failed to state an
Eighth Amendment method of execution claim under the first prong of Baze because the plaintiffs
relied “entirely on hypothetical and speculative harms that, if they were to occur, would only result
from isolated mishaps.” Id., at 1102.
Defendants maintain that this Court should apply the Eight Circuit’s heightened pleading
standard in Zink to plaintiffs’ complaint. 11 As the Court will explain in more detail later in this
Order, even if the Eighth Circuit adopted a heightened pleading requirement for a method of
execution claim in Zink, this Court concludes that such a requirement is inconsistent with Glossip,
which the Supreme Court issued a few months later. Further, regardless of the pleading standard
applied—Zink or Glossip—the Court finds that plaintiffs’ factual allegations pertaining to the risks
posed by defendants’ compressed execution schedule, standing alone, are too speculative to
survive a motion to dismiss.
In their complaint, plaintiffs allege that “[a]ny execution imposes an extraordinary amount
of stress on corrections officers and others involved in the elaborate process” and that “[t]he stress
is multiplied when multiple executions are scheduled for the same day, or when executions are
scheduled without a reasonable period for rest, recovery, and assessment” (Dkt. No. 2-2, ¶¶ 7879). Relying on a declaration from a former corrections official, which is attached to their
complaint, plaintiffs claim that “the stress placed on corrections officers during a ten-day string of
In Zink, the majority opinion disputed that it was adopting a heightened pleading
standard. 783 F.3d at 1104 (“We disagree with Judge Shepherd and the dissenting judges that
requiring a plaintiff to plead the elements of an Eighth Amendment claim as defined in Baze is a
“heightened pleading requirement” that exceeds the requirements of Rule 8 as explained in Iqbal
executions will heighten physical and mental fatigue, will prevent any meaningful post-execution
review of death-chamber procedures, and will accordingly increase the risk that the condemned
inmate will suffer during the execution” (Id., ¶ 80). Plaintiffs allege that the risk of a mistake is
great because “[e]xecution teams are generally made up largely of staff from the department of
corrections[,] . . . not hired executioners” and that execution team members “will be called upon
to take part in the killing of an otherwise healthy human being, under intense scrutiny and pressure,
in a process that they have little to no prior experience with, using a drug that has not been used
before for executions in this State” (Id., ¶¶ 81, 83).
Plaintiffs argue that the “[p]hysical, emotional, and mental fatigue of those involved in this
execution schedule substantially increases the risk that a critical detail will be overlooked, that a
mistake will be made, and that Plaintiffs will unconstitutionally suffer the consequences” (Id., ¶
85). Plaintiffs also cite to the fact that:
After the botched execution of Clayton Lockett in Oklahoma, an investigation of
Oklahoma’s execution practices (which were substantially similar to what
Arkansas has planned) found that intravenous lines in Lockett’s case had been
mishandled in part because of the “extra stress” from the state’s scheduling of two
executions on the same day. . . . The report resulting from the Lockett investigation
recommended that executions not be scheduled within seven calendar days of each
other in deference to manpower and facility concerns.
(Id., ¶ 90). Plaintiffs note that the “Missouri Supreme Court recently adopted a rule” providing
“that ‘[t]he department of corrections shall not be required to execute more than one warrant of
execution per month’” (Id., ¶ 91) (quoting Mo. S. Ct. R. 30.30(f)).
The Court finds that these alleged facts, taken as true, do not show that plaintiffs are
“entitled to relief.” Fed. R. Civ. P. 8 (a)(2). Plaintiffs state in their complaint that “[a]ny execution
imposes an extraordinary amount of stress on corrections officers and others involved in the
elaborate process” (Dkt. No. 2-2, ¶ 78). While it is certainly conceivable that executing eight
inmates in 11 days would increase the stress that corrections officials are under, which would
increase the risk that the officials would make a mistake, there is no way to determine what level
of stress makes the risk of mistake “objectively intolerable.” Glossip, 135 S. Ct. at 2737. The
Court grants defendants’ motion to dismiss plaintiffs’ second claim, to the extent plaintiffs argue
that the compressed execution schedule alone presents a risk that is sure or very likely to cause
serious illness and needless suffering.
Claim Three: Midazolam And The Eighth Amendment
In their third claim for relief, plaintiffs argue that the “[u]se of midazolam as the first drug
in Arkansas’s three-drug protocol” violates the Eighth Amendment’s prohibition of cruel and
unusual punishment (Dkt. No. 2-2, ¶ 102). Governor Hutchinson and Director Kelley argue that
“[t]his claim is absolutely barred by res judicata and collateral estoppel and, in any event, fails to
state a cognizable Eighth-Amendment claim” (Dkt. No. 27, at 43). This Court rejects defendants’
arguments for the following reasons.
Governor Hutchinson and Director Kelley argue that plaintiffs’ midazolam claim is barred
by the doctrine of res judicata, as plaintiffs had a full and fair opportunity to litigate their claims
in their latest action in state court (Dkt. No. 27, at 43-53). See Kelley v. Johnson, 496 S.W.3d 346
(Ark. 2016), reh’g denied (July 21, 2016), cert. denied, No. 16-6496, 2017 WL 670646 (U.S. Feb.
21, 2017). In response, plaintiffs contend that res judicata does not apply because there has been
no final judgment in the state case (Dkt. No. 31, at 15). Plaintiffs argue that, even if there was a
final judgment, res judicata does not apply because adjudication was on the basis of subject-matter
jurisdiction and not on the merits, so as to trigger application of the doctrine under Arkansas law
(Id.). Plaintiffs argue that any purported final judgment was based on the Arkansas Supreme
Court’s determination that the Arkansas suit was not based on proper jurisdiction because it was
barred by sovereign immunity (Id.). Finally, plaintiffs argue that, even if there was a final
judgment, “it was not one that provided plaintiffs a full and fair opportunity to litigate their
midazolam claim in state court” (Id.).
“Under the Full Faith and Credit Act, 28 U.S.C. § 1738, federal courts ‘must give to a
state-court judgment the same preclusive effect as would be given that judgment under the law of
the State in which the judgment was rendered.’” Finstad v. Beresford Bancorporation, Inc., 831
F.3d 1009, 1013 (8th Cir. 2016) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.
75, 81 (1984)). As defendants argue that a previous decision from the Arkansas Supreme Court
bars this action, the Court will analyze this issue under Arkansas law. Zutz v. Nelson, 601 F.3d
842, 847 (8th Cir. 2010).
Under Arkansas law, plaintiffs’ claims are barred by res judicata if: “(1) the first suit
resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3)
the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of
action; and (5) both suits involve the same parties or their privies.” Baptist Health v. Murphy, 373
S.W.3d 269, 278 (Ark. 2010). “Where a case is based on the same events as the subject matter of
a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues
and seeks additional remedies.” Hardy v. Hardy, 380 S.W.3d 354, 358 (Ark. 2011) (citing Beebe
v. Fountain Lake School Dist., 231 S.W.3d 628 (Ark. 2006)).
The Arkansas Supreme Court’s decision in Kelley v. Johnson does not preclude this action
because there has been no final judgment entered in that case. Defendants point to no final
judgment and instead rely on their claim that the mandate operated as a final judgment for res
judicata purposes. In Kelley v. Johnson, defendants took an interlocutory appeal under Arkansas
Rule of Appellate Procedure 2(a)(10), as the Arkansas Supreme Court makes clear. Kelley, 496
S.W.3d at 354. Prior to that interlocutory appeal, the Pulaski County Circuit Court previously
dismissed plaintiffs’ claims that the method-of-execution act violated the separation-of-powers
and ex post facto clauses of the Arkansas Constitution. Plaintiffs were not permitted to appeal
these claims under state procedural rules. See Ark. State Claims Comm’n v. Duit Constr. Co., 445
S.W.3d 496, 504 (Ark. 2014).
Under Arkansas law, a final judgment is required unless there is some basis for an
interlocutory appeal. See Convent Corp. v. City of N. Little Rock, 492 S.W.3d 498 (Ark. 2016).
In the absence of a final judgment, plaintiffs had no basis upon which to ground their right to
appeal, and there can be no application of res judicata without a final judgment. Crockett &
Brown, P.A. v. Wilson, 864 S.W.2d 244, 246 (Ark. 1993) (“Finality for purposes of appeal is
closely related to finality for purposes of res judicata.”). Because there has been no final judgment
entered in the state case, the state court case may continue in an action parallel to this action. See
Baptist Health, 373 S.W.3d at 278 (“It is well settled that federal district courts and state courts
are separate jurisdictions, and identical cases between the same parties can proceed
The Arkansas Supreme Court’s decision in Kelley v. Johnson also does not preclude this
action under the doctrine of res judicata because Kelley v. Johnson was not “based on proper
jurisdiction.” Under Arkansas law, the court acquires no jurisdiction when the suit is one against
the state, and there is no waiver of sovereign immunity. Crossno v. Felts, 2014 Ark. 262, at 2-3;
McCain v. Crossett Lumber Co., 174 S.W.2d 114, 120 (Ark. 1943) (“Neither the trial court nor
this court acquire jurisdiction in a case where the pleadings show that the suit is in effect one
against the State.”) (emphasis added); Pitcock v. State, 121 S.W. 742 (Ark. 1909). The issue of
sovereign immunity is one of subject-matter jurisdiction that the appellate court is required to
address on its own. DFA v. Staton, 942 S.W.2d 804, 805 (Ark. 1996) (“Subject-matter jurisdiction
based on sovereign immunity is an issue that is always open, and it is the duty of an appellate court
to raise the issue of its own volition.”). The Arkansas Supreme Court has determined that res
judicata does not apply when a prior claim was dismissed for lack of subject-matter jurisdiction
because the doctrine “presupposes that the court in which the claim was litigated properly had
jurisdiction over those proceedings.” See First Commercial Bank, N.A. v. Walker, 969 S.W.2d
146, 150 (Ark. 1998) (“For res judicata to apply, the claim must have been adjudicated on the
merits; this requirement presupposes that the court in which the claim was litigated properly had
jurisdiction over those proceedings. Here, the chancery court rendered a judgment for the Bank
on the merits, but we reversed that decision for lack of subject-matter jurisdiction. Therefore, the
circuit court was not required by the doctrine of res judicata to adopt on remand any of the
Chancellor’s holdings.”) (internal citations omitted).
In Kelley v. Johnson, the Arkansas Supreme Court found that Director Kelley and the ADC
were entitled to sovereign immunity from plaintiffs’ claims. 496 S.W.3d at 360. 12 The sovereign
immunity “defense arises from article 5, section 20 of the Arkansas Constitution, which provides:
The Arkansas Supreme Court, in an opinion issued by a divided court, based the holding
in Kelley v. Johnson exclusively on sovereign immunity. As the Arkansas Supreme Court
explained, the sole basis for their jurisdiction over Director Kelley and the ADC’s interlocutory
appeal was “Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure[,]” which permits “an
appeal from an interlocutory ‘order denying a motion to dismiss or for summary judgment based
on the defense of sovereign immunity.’” Kelley, 496 S.W. 3d at 354. Further, the Arkansas
Supreme Court observed, “ADC argues that the appeal is proper because sovereign immunity was
the sole basis on which it moved for dismissal and for summary judgment and that the circuit court
has ruled on all the issues raised in their motions.” Id.
‘The State of Arkansas shall never be made a defendant in any of her courts.’” Id., at 354. Under
Arkansas law, “sovereign immunity is jurisdictional immunity from suit, and jurisdiction must be
determined entirely from the pleadings.” Id. (emphasis added). Plaintiffs can surmount a claim
of sovereign immunity by establishing that a state agency is acting illegally or unconstitutionally.
Id. The Arkansas Supreme Court found that Director Kelley and the ADC were entitled to
sovereign immunity because plaintiffs’ action was against the state, and plaintiffs failed to plead
sufficient facts in their complaint to establish that Director Kelley and the ADC’s proposed method
of execution was unconstitutional. Id., at 360. Accordingly, the Arkansas Supreme Court
concluded that the defendants were entitled to sovereign immunity, meaning the trial court—and
the Arkansas Supreme Court—lacked jurisdiction to hear plaintiffs’ complaint. Duit Constr. Co.,
Inc. v. Arkansas State Claims Comm’n, 476 S.W.3d 791, 795 (Ark. 2015), reh’g denied (Jan. 14,
2016), cert. denied sub nom. Duit Const. Co. v. Arkansas State Claims Comm’n, 137 S. Ct. 42
(2016) (“When the pleadings show that the action is, in effect, one against the State, the circuit
court acquires no jurisdiction.”); see also Ark. Const. art. V, § 20 (“The State of Arkansas shall
never be made defendant in any of her courts.”) (emphasis added); McCain, 174 S.W.2d at 120
(noting that the Arkansas Supreme Court does not “acquire jurisdiction in a case where the
pleadings show that the suit is in effect one against the State”). Accordingly, Kelley v. Johnson
was not based on proper jurisdiction under Arkansas law, meaning it does not have a preclusive
effect on this action because it does not satisfy all of the requirements for res judicata under
See Baptist Health, 373 S.W.3d at 278 (setting forth the requirements).
Defendants are correct that, when confronted with plaintiffs’ attempt to file a “second
amended complaint” after the appeal, the Pulaski County Circuit Court determined that the
Supreme Court’s decision in Kelley v. Johnson was a dismissal on the merits that fully and
completely resolved the Prisoners’ state-court case. See Johnson, et al. v. Kelley, et al., Case No.
60CV-15-2921 (CO6DO5, March 28, 2017). This Court finds that, contrary to the Pulaski County
Circuit Court’s reading of Kelley v. Johnson and defendants’ arguments here, the majority in
Kelley v. Johnson based that decision on pleading standards of Arkansas law, not proof. Although
the ADC argued to the Arkansas Supreme Court—and argues now—that plaintiffs failed to “plead
and prove” their Eighth Amendment claims, the majority’s holdings in Kelley v. Johnson make no
determinations regarding proof related to the method of execution and Eighth Amendment claims.
The holdings are limited to determinations made at the pleading stage. See Kelley, 496 S.W.3d at
359 (“In their amended complaint, the Prisoners pled only that the drugs they offered as
alternatives were ‘commercially available.’ . . . Consequently, the Prisoners failed to even allege
that the proposed drug protocols are ‘feasible’ and ‘readily implemented’ by ADC. Accordingly,
the circuit court erred in concluding that the Prisoners pled sufficient facts as to the proposed
alternative drugs.”); id. at 359-60 (“We reach the same result with respect to the Prisoners’
alternative method of a firing squad. . . . However, these allegations are entirely conclusory in
nature. Conclusory statements are not sufficient under the Arkansas Rules of Civil Procedure,
which identify Arkansas as a fact-pleading state. . . . In this case, the Prisoners failed to substantiate
their conclusory allegations contained in their amended complaint. . . . As a consequence, ADC
was entitled to dismissal on this proposed alternative.”) (internal citations omitted); id. at 360
(regarding the challenge to the Arkansas Midazolam Protocol under the Arkansas Constitution
“[o]n this issue, the circuit court ruled that the Prisoners need to satisfy the requirement of offering
a feasible and readily implemented alternative to the Arkansas Midazolam Protocol. We agree
with ADC’s contention that this claim must be analyzed under the two-part test we have herein
adopted for method-of-execution challenges. . . . This claim also fails because, as we have
discussed, the Prisoners failed to establish the second prong of the Glossip test.”). This is
consistent with the Arkansas Supreme Court’s observation that “jurisdiction must be determined
entirely from the pleadings.” Id. at 354.
Further, in dismissing the action, the majority in Kelley v. Johnson used the language
“[r]eversed and dismissed. . . .” Id. at 366. The court’s order was silent as to whether the complaint
was dismissed with or without prejudice.
The use of that language is consistent with a
determination under Arkansas Rule of Civil Procedure 12 regarding pleadings: when a complaint
is dismissed under Rule 12(b)(6) for failure to state facts upon which relief can be granted, the
dismissal should be without prejudice. Ratliff v. Moss, 678 S.W.2d 369 (Ark. 1984). If the
Arkansas Supreme Court had wanted its dismissal to operate with prejudice under Arkansas Rule
of Civil Procedure 56, the Arkansas Supreme Court presumably would have included such
Arkansas Rule Of Civil Procedure 41(b)
Further, because this Court concludes that the Arkansas Supreme Court’s decision in
Kelley v. Johnson was not “based on proper jurisdiction” as a result of a determination of sovereign
immunity, this Court is not convinced the Arkansas Supreme Court would apply Arkansas Rule of
Civil Procedure 41(b) to a subsequent suit brought on these claims. Defendants argue this should
bar plaintiffs’ current suit. This Court acknowledges that the Pulaski County Circuit Court, in
what can only be described as dicta, expressed the view that, because the Arkansas Supreme
Court’s decision in Kelley v. Johnson was the third time plaintiffs’ claims challenging Act 1096
of 2015 were dismissed, the Arkansas Supreme Court’s dismissal operated as a dismissal with
prejudice under Arkansas state law. 13 The Pulaski County Circuit Court theorized that, given the
ruling in Ballard Group, Inc. v. BP Lubricants USA, Inc., 436 S.W.3d 445 (Ark. 2014), “a
dismissal granted for failure to state facts upon which relief can be granted under Rule 12(b)(6)
constitutes an involuntary dismissal under Rule 41(b)).” Id. at 456-57 (quoting Ark. R. Civ. P.
41(b)); see also Brown v. Tucker, 954 S.W.2d 262 (Ark. 1997).
The Pulaski County Circuit Court neither discussed nor analyzed the significance of the
dismissal based on sovereign immunity and how that might impact the application of Arkansas
Rule of Civil Procedure 41(b). This Court can find no reported case that addresses this exact issue
under Arkansas law. However, it is clear that Rule 41 is subject to broad equitable exceptions. In
Jonesboro Healthcare Center, LLC, v. Eaton-Moery Environmental Servs., Inc., 385 S.W.3d 797
(Ark. 2011), the Arkansas Supreme Court determined that a dismissal due to lack of subject matter
jurisdiction did not constitute a voluntary nonsuit triggering the two-dismissal rule in Arkansas
Rule of Civil Procedure 41(b). In that case, the plaintiff initially filed suit in district court. Id. at
801. Six days after discovering the issue, plaintiff’s counsel informed the district court. Id. The
district court had no option of transferring the case to the appropriate jurisdiction; it was required
to dismiss the suit. The Arkansas Supreme Court concluded that, despite that, the dismissal at the
plaintiff’s request for lack of subject matter jurisdiction was “not the type of voluntary dismissal
The Pulaski County Circuit Court’s pronouncements regarding Arkansas Rule of Civil
Procedure 41(b) are dicta. The Arkansas Supreme Court determined that defendants were entitled
to sovereign immunity in that original action, which is jurisdictional immunity from suit. As a
result, the Circuit Court’s pronouncements were not central or necessary to that court’s
determination that it lacked jurisdiction to hear allegations challenging the method of execution
and midazolam under the Eighth Amendment raised in a second amended complaint. Likewise,
the application of Arkansas Rule of Civil Procedure 41(b) would not be a basis on which to appeal
or challenge the Arkansas Supreme Court’s decision in a direct appeal of Kelley v. Johnson. Any
argument that a subsequent action on these same claims is barred under Arkansas Rule of Civil
Procedure 41(b) would necessarily be addressed and properly before the court in which the
subsequent action is filed, not in the original action.
contemplated by Rule 41(a), nor the type of involuntary dismissal that is contemplated by Rule
41(b).” Id. at 804.
In reaching this conclusion, the Arkansas Supreme Court determined that, “[a]t first glance,
a literal interpretation of the words ‘whether voluntarily or involuntarily’ giving them their
ordinary and common meaning would lead to the conclusion that a dismissal for want of subjectmatter jurisdiction would be an involuntary dismissal. However, such a literal application and
interpretation leads to an absurd result that is not only contrary to the purpose and intent of the
rule, but also contrary to well-established law.” Id. As for well-established law, the court reasoned
that “[a] court that acts without subject-matter jurisdiction or in excess of its jurisdiction produces
a result that is void and cannot be enforced. Certainly then, a dismissal from a court that lacks
subject-matter jurisdiction cannot operate under Rule 41(b) as an ‘adjudication on the merits.’”
Id. (internal citations omitted). As for the intent of Rule 41(b), the court determined that the rule
“was intended to allow the trial courts to clean up their dockets and get stale cases off the active
docket.” Id. (quoting Cory v. Mark Twain Life Ins. Corp., 688 S.W.2d 934, 935 (1985)).
The court further explained:
The primary purpose of the two-dismissal rule is to prevent unreasonable use of the
plaintiff’s unilateral rights to dismiss an action prior to the filing of the defendant’s
responsive pleading, and it is an exception to the general principle that a voluntary
dismissal of an action does not bar a new suit based upon the same claim. The twodismissal rule was unique at the time it was first adopted, and its intention was to
prevent delays and harassment by plaintiffs securing numerous dismissals without
prejudice. But where the purpose behind the two-dismissal exception would not
appear to be served by its literal application, and where that application’s effect
would be to close the courthouse doors to an otherwise proper litigant, a court
should be most careful not to construe or apply the exception too broadly.
Id. at 802-03 (quoting Smith v. Washington, 10 S.W.3d 877, 880 (Ark. 2000) (internal citations
omitted)). Because lack of subject-matter jurisdiction could be raised by either party or the court
itself, the court determined it was not within plaintiff’s unilateral right to dismiss; that there had
not been delays and harassment by plaintiffs securing numerous dismissals without prejudice; and
that the case was not stale, among other reasons cited for not applying Rule 41(b). Id. at 803-04.
On the facts presented here, sovereign immunity is not solely within the control of
plaintiffs; it must be raised by defendants and can be waived. Further, under Arkansas law, like
subject-matter jurisdiction, Arkansas courts are obligated to address sovereign immunity on their
own. Staton, 942 S.W.2d at 805 (“Subject-matter jurisdiction based on sovereign immunity is an
issue that is always open, and it is the duty of an appellate court to raise the issue of its own
volition.”). When confronted with a claim of sovereign immunity, if the court finds it applicable,
the court must dismiss the claim, as it is jurisdictional immunity from suit rendering the court with
no further authority to take action over that claim. For these reasons, among others, the Arkansas
Supreme Court might apply the rationale of Jonesboro Healthcare to this dismissal based on
sovereign immunity or conclude that Jonesboro Healthcare is controlling precedent, concluding
that to close the courthouse doors to an otherwise proper litigant through operation of Arkansas
Rule of Civil Procedure 41(b) under these circumstances would be improper.
Despite defendants’ suggestions to the contrary, this Court attaches no significance to the
fact that the Arkansas Supreme Court recently issued an “order clarifying that the stay of
executions imposed in Ark. Supreme Court No. CV-15-829 dissolved upon the issuance of the
mandate in Kelley v. Johnson, Ark. Supreme Court No. CV-15-992. . . .” (Dkt. No. 27, at 49).
The Arkansas Supreme Court acknowledged that the stays of execution were implemented
“pending the resolution of the underlying litigation.” Kelley v. Johnson, 496 S.W.3d at 352 (citing
Kelley v. Griffen, 472 S.W.3d 135)). The dismissal based on sovereign immunity led the Arkansas
Supreme Court to lift the stays.
In the alternative, defendants argue that collateral estoppel, which is similar to the doctrine
of res judicata, should apply to certain of plaintiffs’ claims, including their midazolam claims.
Under these circumstances, Arkansas law governs the question of collateral estoppel. National
Farmers Union Standard Ins. Co. v. Morgan, 966 F.2d 1250, 1253 (8th Cir. 1992). Under
Arkansas law, the four elements of collateral estoppel, or issue preclusion, are that: (1) the issue
is the same as that involved in a prior litigation; (2) the issue was actually litigated; (3) the issue
was determined by a valid and final judgment; and (4) the determination was essential to the
judgment. East Texas Motor Freight Lines v. Freeman, 713 S.W.2d 456, 459 (1986).
This Court declines to dismiss plaintiffs’ Eighth Amendment challenge to the Arkansas
Midazolam Protocol based on collateral estoppel arising from Kelley v. Johnson. Collateral
estoppel is a legal doctrine that “bar[s] the relitigation of factual or legal issues that were
determined in a prior. . . court action” and “applies to bar relitigation in federal court of issues
previously determined in state court.” In re Scarborough, 171 F.3d 638, 641 (8th Cir. 1999). In
Kelley v. Johnson, the Arkansas Supreme Court found that Director Kelley and the ADC were
entitled to sovereign immunity from plaintiffs’ claims, as this was the sole basis for the Arkansas
Supreme Court’s jurisdiction over that interlocutory appeal. 496 S.W.3d at 360. Given the wellsettled federal law in this area, sovereign immunity is not an issue to be actually litigated before
this Court. Plaintiffs bring their claims under 42 U.S.C. § 1983 against Governor Hutchinson and
Director Kelley seeking declaratory and injunctive relief. “To ensure the enforcement of federal
law . . . the Eleventh Amendment permits suits for prospective injunctive relief against state
officials acting in violation of federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437
(2004) (emphasis added) (citing Ex parte Young, 209 U.S. 123 (1908)).
Further, as the Arkansas Supreme Court made clear under Arkansas law, “sovereign
immunity is jurisdictional immunity from suit, and jurisdiction must be determined entirely from
the pleadings.” 496 S.W.3d at 360 (emphasis added). That means the Arkansas Supreme Court
analyzed Arkansas Rule of Civil Procedure 12(b)(6). Arkansas has adopted a clear standard to
require fact pleading, which is deemed to be a higher standard by which the sufficiency of the
allegations in a complaint is tested. See Arkansas Rules of Civil Procedure 8 and 12; Malone v.
Trans–States Lines, Inc., 926 S.W.2d 659, 661 (Ark. 1996); Hollingsworth v. First Nat’l Bank &
Trust Co., 846 S.W.2d 176, 178 (Ark. 1993).
In contrast, the Federal Rules of Civil Procedure require only notice pleading, a lower
threshold than fact pleading. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the
defendant fair notice of what the. . . claim is and the grounds upon which it rests.” Bell Atl. Corp.,
550 U.S. at 545. While a complaint attacked by a Federal Rule of Civil Procedure 12(b)(6) motion
to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a
formulaic recitation of a cause of action’s elements will not do. Factual allegations must be enough
to raise a right to relief above the speculative level on the assumption that all of the complaint's
allegations are true.” Bell Atl. Corp., 550 U.S. at 545. To the extent defendants contend the Eighth
Circuit adopted a heightened pleading standard in Zink akin to fact pleading, for reasons the Court
will explain in more detail later in this Order, the Court rejects this suggestion. Even if the Eighth
Circuit adopted a heightened pleading standard for a method of execution claim in Zink, this Court
concludes that such a requirement is inconsistent with Glossip, which the Supreme Court issued a
few months later.
No court has addressed the merits of plaintiffs’ claim that midazolam is likely to cause
constitutional suffering. The Pulaski County Circuit Court determined that genuine issues of
material fact remained to be tried on this issue. The Arkansas Supreme Court declined to address
the issue, instead resolving only that plaintiffs failed to meet Arkansas’s heightened fact pleading
standard on the second prong of the Glossip test. Kelley, 496 S.W.2d at 360 (stating in reference
to plaintiffs’ assertion that using midazolam entails objectively unreasonable risks of substantial
and unnecessary pain and suffering, “[t]his claim also fails because, as we have discussed, the
Prisoners failed to establish the second prong of the Glossip test.”). Plaintiffs also contend that
collateral estoppel does not apply because new evidence has emerged regarding alternatives that
could not have been raised before, citing information regarding Missouri’s purchase of
compounded pentobarbital (Dkt. No. 2-2, Exhibit 18), and that the Arkansas legislature has since
refused to consider another execution method that plaintiffs maintain would reduce the suffering
caused by midazolam (Dkt. No. 2-2, Exhibit 24).
For the reasons explained, this Court concludes that the issues to be determined in this
litigation are not the same as those involved in the prior litigation. In addition, this Court concludes
that the prior litigation did not result in a final judgment that would preclude plaintiffs under the
doctrine of collateral estoppel from refiling suit alleging these same claims in Arkansas state court.
Moreover, when evaluating the application of these procedural doctrines, this Court cannot
ignore the subject matter of this action or the very recent developments in this area of the law.
“Death is different.” Woodson v. North Carolina, 428 U.S. 280, 305 (1976). Developments in the
law in this area within the last week have led to what may be a“circuit split,” meaning that the
United States Courts of Appeals for different circuits disagree with one another over the meaning
and application of standards announced in Baze and Glossip. The meaning and application of
those standards directly impacts plaintiffs’ claims here. See In re Ohio Execution Protocol, 2017
WL 1279282, at *11-15; Arthur, 840 F.3d at 1300.
Failure To State A Claim
Governor Hutchinson and Director Kelley argue that, even if plaintiffs midazolam claim
is not barred by res judicata or collateral estoppel, it should “be dismissed because the Complaint
fails to allege sufficient facts to state a plausible Eighth-Amendment claim as required to overcome
the State’s Eleventh Amendment immunity” (Dkt. No. 27, at 56). As in their Eighth Amendment
claim based solely on the compressed execution schedule, plaintiffs must “establish that the
State’s lethal injection protocol creates a demonstrated risk of severe pain” and “must show that
the risk is substantial when compared to the known and available alternatives.” Glossip, 135 S.
Ct. at 2737 (quoting Baze, 553 U.S. at 61). Governor Hutchinson and Director Kelley argue that
plaintiffs fail to plead sufficient facts to state both prongs of Baze/Glossip, but focus the majority
of their arguments on the second prong. 14
Demonstrated Risk Of Severe Pain
In their complaint, plaintiffs allege that the Arkansas Midazolam Protocol creates a
demonstrated risk of severe pain because midazolam “cannot render Plaintiffs insensate to the pain
and suffering caused by the vecuronium bromide and the potassium chloride” (Dkt. No. 2-2, ¶
108). The three drugs used under the Arkansas Midazolam Protocol serve different purposes. The
second drug, “vecuronium bromide, paralyzes the recipient’s diaphragm and prevents breathing”
14 Defendants also argue that this Court should dismiss plaintiffs’ midazolam claim
because “Midazolam protocols have been upheld by numerous courts, including the United States
Supreme Court and the Arkansas Supreme Court” (Dkt. No. 27, at 65). These earlier decisions are
not controlling. See In re Ohio Execution Protocol Litig., 2017 WL 1279282, at *6 (6th Cir. Apr.
6, 2017) (“The Supreme Court did not say that use of midazolam is per se constitutional such that
no district court may ever conduct fact-finding and find otherwise.”).
(Id., ¶ 104). Relying on materials provided by their expert witnesses, which are attached to their
complaint, plaintiffs allege that, if “[a]dministered by itself, it leaves the recipient unable to
communicate and feeling as if he has been buried alive” (Id.). The third drug, “potassium chloride,
stops the heart.” (Id., ¶ 105). Plaintiffs further allege that, if potassium chloride were administered
by itself, “it would cause the recipient to experience an excruciating burning pain.” (Id.).
Midazolam, the first drug, is administered to prevent or substantially limit the prisoners’
suffering from the effects of the second and third drugs.
Plaintiffs allege that there is a
demonstrated risk that midazolam will fail to serve that purpose, leaving plaintiffs exposed to “the
harrowing effects of the second and third drugs” (Id., ¶ 108). Plaintiffs allege that:
Unlike barbiturates, which are typically used in lethal injections and which can
render general anesthesia, midazolam has no independent depressive effect.
Rather, it binds with a neurotransmitter called “GABA” to produce sedation.
Because GABA is present in limited quantities in the brain, midazolam’s sedative
properties are also limited. Scientists refer to this as the drug’s “ceiling effect.”
(Id., at 107). Plaintiffs contend that “[m]idazolam’s ceiling effect prevents it from producing
general anesthesia. . . . 500 mg midazolam will sedate Plaintiffs, but it will not anesthetize them
to pain” (Id., ¶ 108).
The Court finds that plaintiffs pled sufficient facts to state a plausible claim under the first
prong of Baze/Glossip. Plaintiffs provide specific alleged facts in their complaint and attached
exhibits that, taken as true, would establish that it is “sure or very likely” that midazolam will fail
to prevent plaintiffs from being exposed to the effects of vecuronium bromide and potassium
chloride. Glossip, 135 S. Ct. at 2736. These alleged facts are not speculative—they are grounded
in specific reasons about the chemical properties of midazolam provided by plaintiffs’ experts,
which are bolstered by the complications that arose in the four “botched” midazolam executions
identified by plaintiffs. Plaintiffs have also stated sufficient facts that, when taken as true, show
that the effects of vecuronium bromide and potassium chloride constitute “severe pain.” Id., at
Substantial Risk Compared To Known And Available
Governor Hutchinson and Director Kelley argue that, while plaintiffs identify a number of
proposed alternative methods of execution in their complaint, they “failed to allege facts
demonstrating that those alternative methods are known, feasible, readily implemented, and
available to ADC and that they would significantly reduce a substantial risk of severe pain” (Dkt.
No. 27, at 58). Plaintiffs identify six proposed alternatives in their complaint: (1) replacing
midazolam with FDA-approved, manufactured pentobarbital; (2) a two drug cocktail of
midazolam and potassium chloride; (3) execution by firing squad; (4) replacing midazolam with
compounded pentobarbital; (5) sevoflurane as the sole lethal agent; and (6) nitrogen hypoxia (Dkt.
No. 2-2, at 36-38). Plaintiffs also argue that the state of Arkansas’s unwillingness to even consider
more humane execution methods dispenses with the need for plaintiffs to plead and prove
alternative execution methods to show an Eighth Amendment violation (Id., at 38).
The Court finds that plaintiffs have pled sufficient facts to state a plausible claim under the
second prong of Baze/Glossip. As a preliminary matter, the Court is compelled to address the
Eighth Circuit’s standard for pleading a method of execution claim under the Eighth Amendment.
On at least two occasions, the Eighth Circuit Court of Appeals has found that condemned
prisoners failed to state a method of execution claim because their complaints did not include
“plausible allegation[s] of a feasible and more humane alternative method of execution, or a
purposeful design by the State to inflict unnecessary pain.” In re Lombardi, 741 F.3d 888, 896
(8th Cir. 2014); see also Zink, 783 F.3d at 1106. In the first case, In re Lombardi, the Eighth
Circuit concluded that the plaintiffs failed to state a claim because their complaint included no
allegations pertaining to an alternative method of execution. In re Lombardi, 741 F.3d at 895. In
Zink, the Eighth Circuit took its earlier decision a step further, finding that plaintiff’s “allegation
in the second amended complaint that ‘other methods of lethal injection the Department could
choose would be constitutional’ does not contain sufficient factual matter to state a claim to relief
that is plausible on its face.” Zink, 783 F. 3d at 1106-07. The Eighth Circuit stated that “[t]he
second amended complaint includes no factual matter that even hints at how the State—drawing
on feasible and readily implemented alternatives—could modify its lethal-injection protocol to
reduce significantly the alleged substantial risk of severe pain.” Id., at 1103. The court concluded
that such a “‘naked assertion’ that other methods would be constitutional, devoid of further factual
enhancement, fails to state a claim under the Eighth Amendment.” Id. In reaching its conclusion,
the majority rejected a criticism made in the dissent that the court was imposing a “heightened
pleading requirement” for method of execution claims. Id., at 1104; see also Zink, 783 F.3d at
1119 (Bye, J., dissenting) (“The majority opinion establishes heightened pleading requirements
for death-row inmates challenging a state’s method of execution under the Eighth Amendment.”).
Both In re Lombardi and Zink were decided after the United States Supreme Court issued
its decision in Baze but before the Supreme Court’s decision in Glossip. The procedural history
of Glossip and statements made by the Supreme Court in Glossip provide the most current lens
through which this Court must examine pleading requirements for a method of execution claim.
While at the district court level, the defendants in Glossip filed a motion to dismiss
plaintiffs’ method of execution claims for failure to state a claim. See Defendants’ Motion To
Dismiss Plaintiffs’ Amended Complaint and Brief in Support, Warner v. Gross, No. 5:14-cv-665F (W.D. Okla. Nov. 14, 2014), ECF No. 97. In their amended complaint, plaintiffs alleged that:
Sodium thiopental is an ultrashort-acting barbiturate. The patent for its creation has
expired and the patent provides the scientific information to permit its reproduction.
It would be feasible to use sodium thiopental in a single-drug formulation to execute
Plaintiffs. With sound procedures and properly trained personnel, use of sodium
thiopental to execute Plaintiffs would be lawful, and would significantly reduce the
substantial risk of severe pain posed by other drugs and drug combinations
identified set forth in the September 30, 2014 Field Memorandum.
Amended Complaint, Warner v. Gross, No. 5:14-cv-665-F (W.D. Okla. Oct. 31, 2014), ECF No.
75, ¶¶ 30-31. Relying on In re Lombardi, the defendants argued that these alleged facts were
insufficient to state a claim under the second prong of Baze. Defendants’ Motion To Dismiss
Plaintiffs’ Amended Complaint and Brief in Support, Warner v. Gross, No. 5:14-cv-665-F (W.D.
Okla. Nov. 14, 2014), ECF No. 97, at 15 (“[A]s in In re Lombardi, Plaintiffs have not alleged any
feasible, humane alternative, nor have they alleged any plausible claim that the State will purposely
inflict unnecessary pain.”).
The district court denied defendants’ motion to dismiss. Regarding defendants’ argument
that plaintiffs failed to plead an alternative method of execution, the district court found that:
In contrast to the allegations in Lombardi, in the instant case plaintiffs allege that
there is an alternative method of execution to compounded pentobarbital,
specifically, manufactured sodium thiopental. Defendants contend this drug is not
a feasible alternative because it is not available. That contention, however, goes
beyond the pleadings and presents an evidentiary issue the court cannot reach at
Warner v. Gross, No. 5:14-cv-665-F (W.D. Okla. Dec. 12, 2014) (order denying defendants’
motion to dismiss). The district court later denied plaintiffs’ motion for a preliminary injunction,
finding that plaintiffs failed to prove that the proposed alternative methods of execution were
readily available. Glossip, 135 S. Ct. at 2738.
In Glossip, the Supreme Court noted that, “[i]n their amended complaint, petitioners
proffered that the State could use sodium thiopental as part of a single-drug protocol.” Id. The
Court made no mention as to the sufficiency of the factual allegations in plaintiffs’ amended
complaint. Instead, the Supreme Court affirmed the district court’s factual finding that plaintiffs
failed to prove that sodium thiopental was an available alternative. Id. In reaching this conclusion,
the Supreme Court used the clear error standard, thereby “defining ‘availability’ as a factual
finding.” In re Ohio Execution Protocol Litig., 2017 WL 1279282, at *9. The Supreme Court
also reiterated that there is not a “heightened pleading requirement” for method of executions
claims. Glossip, 135 S. Ct. at 2738-39.
This Court finds that, while “the Eighth Amendment requires a prisoner to plead and prove
a known and available alternative[,]” Id., at 2729, plaintiffs challenging a method of execution
need not plead facts in the level of detail defendants argue here, purporting to rely on the Eighth
Circuit’s opinion in Zink. The Court reaches this determination as a result of the clarification
offered by the United States Supreme Court in Glossip, and after tracing the procedural history of
that case. The Court notes that its understanding of Glossip is shared by at least one other district
court. See Price v. Dunn, No. CA 14-0472-KD-C, 2015 WL 6962854, at *8 (S.D. Ala. Oct. 20,
2015), report and recommendation adopted, No. CV 14-0472-KD-C, 2015 WL 6964660 (S.D.
Ala. Nov. 10, 2015) (denying defendants’ motion to dismiss plaintiffs’ amended complaint for
failure to plead sufficient facts of an available alternative method of execution). The Court finds
that the defendants’ arguments pertaining to the availability of alternative methods of execution
should be resolved after considering the evidence presented at the Court’s evidentiary hearing.
Therefore, the Court denies defendants’ motion to dismiss this claim at the pleading stage.
The Court also finds that, even if defendants are correct and the Eighth Circuit in Zink
instituted a higher pleading standard that controls, plaintiffs pled sufficient facts to state a plausible
method of execution claim. To succeed on their method of execution claim, plaintiffs must
“identify a known and available alternative method of execution that entails a lesser risk of pain”
than the Arkansas Midazolam Protocol. Glossip, 135 S. Ct. at 2731 (quoting Baze, 553 U.S. at
61). The Supreme Court “has provided very little guidance as to the definition of ‘availability’ of
execution methods.” In re Ohio Execution Protocol Litig., 2017 WL 1279282, at *9. The Eighth
Circuit has not elaborated on the meaning of availability, other than by finding that a “threadbare
assertion that lethal gas is legally available in Missouri is not the same as showing that the method
is a feasible or readily implementable alternative method of execution.” Johnson v. Lombardi,
809 F.3d 388, 391 (8th Cir.), cert. denied, 136 S. Ct. 601, 193 L. Ed. 2d 480 (2015). Other Circuit
Courts of Appeal are split as to what qualifies as an alternative method. Compare Arthur, 840
F.3d at 1300 (concluding that plaintiffs must prove, among other requirements, that “the State
actually has access to the alternative”), with In re Ohio Execution Protocol Litig., 2017 WL
1279282, at *9 (affirming the district court’s finding that compounded pentobarbital was an
available alternative method of execution despite the fact that “Ohio does not currently have
pentobarbital on hand and cannot purchase pentobarbital to use in executions directly from drug
Among other alternative methods, plaintiffs here allege that manufactured pentobarbital
“would adequately anesthetize Plaintiffs to the pain the second and third drugs otherwise would
cause[,]” meaning it would significantly reduce a substantial risk of severe pain (Dkt. No. 2-2, ¶
110). Plaintiffs argue that it is available to the state because “Arkansas has passed laws to shield
drug suppliers from public view, Ark. Code Ann. § 5-4-617(i)(2), thus facilitating its ability to
acquire drugs, as exhibited by its recent purchases of vecuronium bromide and potassium
chloride” (Id.) (emphasis added). The Court finds that plaintiffs’ allegations concerning the
availability of manufactured pentobarbital are sufficiently specific to survive defendants’ motion
Plaintiffs also allege that replacing midazolam with compounded pentobarbital “would
significantly reduce the risk of Plaintiffs’ suffering” (Id., ¶ 37). The Sixth Circuit Court of Appeals
recently affirmed a district court’s finding that plaintiffs were able to establish that compounded
pentobarbital is available for the purposes of the second prong of Glossip. See In re Ohio
Execution Protocol Litig., 2017 WL 1279282, at *8. The Court finds that hearing evidence on the
availability and suitability of compounded pentobarbital is appropriate in this action. For these
reasons, the Court denies defendants’ motion to dismiss plaintiffs’ midazolam claim.
Claim 4: Lethal Injection Protocol And The Eighth Amendment
In their fourth claim for relief, plaintiffs argue that, separate and apart from its intention to
use midazolam, the ADC’s execution “protocol carries unacceptable risks of severe pain in
violation of the Eighth Amendment” (Dkt. No. 2-2, ¶ 120). Governor Hutchinson and Director
Kelley move to dismiss this claim as untimely, barred by res judicata and collateral estoppel, and
for failure to state a claim.
Assuming without deciding that plaintiffs’ claims here are timely and not barred by res
judicata or collateral estoppel, the Court finds that plaintiffs fail to state a claim based on the
provisions in the execution protocol that do not involve the use of midazolam. The Eighth Circuit
has held that an earlier version of Arkansas’s lethal injection protocol does not violate the Eighth
Amendment. Jones v. Hobbs, 604 F.3d 580, 582 (8th Cir. 2010); Nooner v. Norris, 594 F.3d 592
(8th Cir. 2010). Responding to defendants’ motion to dismiss, plaintiffs argue that the protocol at
issue in Jones and Nooner has changed: “that protocol used sodium thiopental, not midazolam”
(Dkt. No. 31, at 24). Plaintiffs contend that “[a]opting midazolam as the first drug in the protocol
is a sea change—one that imbues the entire protocol with new risks of substantial harm to the
The Court agrees with plaintiffs that the other policies included in the lethal injection
protocol are relevant to determine whether the state’s use of midazolam violates the Eighth
Amendment, which is why the Court denies defendants’ motion to dismiss plaintiffs’ fifth claim.
However, based on the Eighth Circuit’s decisions in Jones and Nooner, the Court grants
defendants’ motion to dismiss plaintiffs’ fourth claim.
Claim 5: Execution Schedule, Midazolam, And Protocol And The
In their fifth claim for relief, plaintiffs argue that, “[i]f neither the schedule, nor the use of
midazolam, nor the lack of adequate protocol constitutes an independent constitutional violation,
they substantiate a constitutional violation in combination” (Dkt. No. 2-2, ¶ 160). Governor
Hutchinson and Director Kelley move to dismiss this claim because it is “is utterly speculative”
(Dkt. No. 27, at 75). They also argue that, if plaintiffs’ “midazolam claim is correct . . . then any
potential for personnel error adds nothing of constitutional significance because even if everything
went exactly as planned, there would still be a constitutional violation” (Id.).
This Court has found that plaintiffs stated sufficient factual allegations to state a claim that
the Arkansas Midazolam Protocol violates the Eighth Amendment. The Court rejects defendants’
argument that the alleged risks of the use of midazolam, the compressed scheduling, and the
ADC’s execution protocol are unrelated. In Baze and Glossip, the Supreme Court stressed that
district courts should consider the safeguards a state employs in determining whether the state’s
lethal injection protocol violates the Eighth Amendment. See Glossip, 135 S. Ct. at 2742; Baze,
553 U.S. at 55. In Glossip, the Supreme Court specifically found that “[t]he District Court did not
commit clear error in concluding that [certain] safeguards help to minimize any risk that might
occur in the event that midazolam does not operate as intended.” Glossip, 135 S. Ct. at 2742
(emphasis added). If the state’s safeguards are inadequate, as the plaintiffs allege, than that fact is
relevant to plaintiffs’ midazolam claim. The Court denies defendants’ motion to dismiss this
Claims 6 And 7: Viewing Policy Claims
The Court addresses Claims VI and VII together, because they involve common issues of
law and fact. These two claims relate to whether Director Kelley’s policies deprive plaintiffs of
their First Amendment right of access to the courts and their right to counsel under 18 U.S.C. §
3599. At the outset, given the unique circumstances presented by the execution context, the Court
determines that any putative right to access the courts necessarily depends on the right of counsel
to petition the court on plaintiffs’ behalf. Therefore, resolution of Claims VI and VII must be
Plaintiffs allege that Director Kelley’s viewing policies deprive them of their right to
petition courts to allege actual, non-frivolous constitutional deprivations occasioned by the method
of their execution (Dkt. No. 2-2, ¶¶ 166-173). Plaintiffs allege that, in the execution context, there
is a heightened possibility that counsel for plaintiffs may need to access the courts during the
executions themselves (Id., ¶ 168). Plaintiffs allege that Director Kelley’s viewing policies would
force plaintiffs’ counsel either to view the execution or have telephonic access to the courts but
would make accomplishing both impossible (Id., ¶ 169).
These conditions, plaintiffs allege, cause an unconstitutional deprivation of their right of
access to the courts. Plaintiffs note that, given the potential exigencies inherent to the execution
process, other states’ departments of correction policies both permit multiple attorneys to witness
executions and provide for methods by which counsel may contact the courts during the course of
executions (Dkt. No. 2-2, Ex. 5). 15 With respect to the claim arising under § 3599, plaintiffs allege
that a prospective motion for stay of execution, to be raised during the course of an execution in
order to remedy an ongoing Eighth Amendment deprivation, amounts to an “appropriate motion
and procedure” and “application for stay of execution” pursuant to the terms of § 3599(e) (Dkt.
No. 2-2, at ¶¶ 176-178). Therefore, if only one attorney is permitted to witness the execution,
without the capability of communicating with a court, plaintiffs allege that it would be impossible
to satisfy counsel’s duties under § 3599 (Id., ¶¶ 179-181).
Plaintiffs allege that, in the past, Director Kelley’s predecessors have permitted multiple
attorneys to witness executions (Dkt. No. 2-2, ¶ 25). Plaintiffs allege that, Director Kelley’s
policies permit only one attorney per inmate to witness an execution (Id., 27, Ex. 9). Plaintiffs
allege that, due to Director Kelley’s policies, the lone witnessing attorney would have no access
to a telephone during the execution (Id., ¶ 28, Ex. 10). Plaintiffs allege that Director Kelley’s
predecessor provided procedures in the past that placed no restrictions on attorney viewing or
phone access during the execution, and that there is no indication as to when these policies changed
(Id., ¶ 29). Plaintiffs allege that Director Kelley’s policies prevent all witnesses, including counsel
for plaintiffs, from viewing and hearing the complete execution process (Id., ¶ 30).
Plaintiffs allege that Director Kelley’s policies “prevent the one attorney who is allowed to
view the execution from effectively representing his clients by depriving him of any access to a
phone (and thus to courts or co-counsel)” (Dkt. No. 2-2, ¶ 179). Plaintiffs allege that Director
Kelley’s policies “prevent [p]laintiffs’ attorneys from raising such a problem with the courts.” (Id.,
15 Plaintiffs cite the case of Joseph Wood in Arizona as an example of the potential
necessity of immediate judicial review during the execution process. During Mr. Wood’s nearly
two-hour execution, his attorneys were forced to leave the witness room to seek a stay of execution
during a telephonic hearing with a federal judge, which eventually was convened. Mr. Wood died
during the course of the 30-minute hearing.
¶ 180). Plaintiffs further allege that “plaintiffs’ right to counsel requires that their attorneys have
a complete visual and audio access to the execution from the time [p]laintiffs enter the chamber to
the time they are pronounced dead. (Id.). Finally, plaintiffs allege that “arbitrarily limiting
[p]laintiffs to one attorney in the witnessing room . . . infringe[s] upon the right to counsel
guaranteed by 18 U.S.C. § 3599” (Id., ¶ 181).
Whether The Claims Are Time-Barred
As a threshold matter, defendants assert that plaintiffs’ Claims VI and VII “are time-barred
because the ADC’s witness and technology policies have not changed since at least 2008.” (Dkt.
No. 27, at 76). Plaintiffs dispute this.
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983. Section 1983 does not provide a
statute of limitations; therefore, courts “borrow the statute of limitations from state law.”
Mountain Home Flight Serv., Inc. v. Baxter Cty., Ark., 758 F.3d 1038, 1044 (8th Cir. 2014) (citing
Birmingham v. Omaha Sch. Dist., 220 F.3d 850, 855 (8th Cir. 2000)). As this action arises out of
the state of Arkansas, “the applicable statute of limitations is three years.” Id.; see also Grand
Valley Ridge, LLC v. Metro. Nat. Bank, 388 S.W.3d 24, 35 (Ark. 2012) (“[P]ursuant to Arkansas
Code Annotated section 16–56–105 (Repl. 2005), a three-year statute of limitations applies to tort
At issue is when the three-year statute of limitations period began to run for plaintiffs’
claims. While federal courts borrow the statute of limitations period from state law, “the accrual
date of a § 1983 cause of action is a question of federal law that is not resolved by reference to
state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (emphasis in original). The Eighth Circuit
has not addressed this issue. Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015) (“Now
that the claim is being addressed on the merits, past delays bring to the forefront the question of
the applicable statute of limitations governing method-of-execution Eighth Amendment claims, a
question this court has not addressed.”).
However, the Eighth Circuit has implied that it would be inclined to follow the reasoning
of the Fifth, Sixth, and Eleventh Circuits. Id. at 1129 (citing Wellons v. Comm’r, Ga. Dep’t of
Corr., 754 F.3d 1260, 1263–64 (11th Cir. 2014); Walker v. Epps, 550 F.3d 407 (5th Cir. 2008);
Cooey v. Strickland, 479 F.3d 412, 416–24 (6th Cir. 2007)). These circuits have found that a
“claim challenging the state’s method of execution ‘accrues on the later of the date on which’
direct review is completed by denial of certiorari, ‘or the date on which the capital litigant becomes
subject to a new or substantially changed execution protocol.’” Gissendaner v. Comm’r, Georgia
Dep’t of Corr., 779 F.3d 1275, 1280 (11th Cir.), cert. denied sub nom. Gissendaner v. Bryson, 135
S. Ct. 1580, 191 L. Ed. 2d 661 (2015) (quoting McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir.
2008)); see also Walker, 550 F.3d at 414 (“The district court concluded that such causes of action
necessarily accrue on the later of two dates: the date direct review of an individual case is complete
or the date on which the challenged protocol was adopted. We agree with the district court.”);
Wilson v. Rees, 620 F.3d 699, 700 (6th Cir. 2010) (same).
The Court denies defendants’ motion to dismiss with respect to these claims based on the
statute of limitations. There are sufficient facts alleged in plaintiffs’ complaint, which if taken as
true as the Court must at this stage, overcome defendants’ argument that Claims VI and VII are
Bar by a statute of limitation is typically an affirmative defense, which the
defendant must plead and prove. A defendant does not render a complaint defective
by pleading an affirmative defense, and therefore the possible existence of a statute
of limitations defense is not ordinarily a ground for Rule 12(b)(6) dismissal unless
the complaint itself establishes the defense.
Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir. 2008) (internal citations omitted). Assuming
without deciding that the Eighth Circuit would adopt the Fifth, Sixth, and Eleventh Circuit’s
understanding of accrual for method of execution claims, the plaintiffs have alleged enough at this
stage of the proceeding to survive defendants’ motion to dismiss. The Court will not dismiss this
claim based on defendants’ argument that these claims are untimely. Therefore, the Court will
turn to the substantive allegations raised by Claims VI and VII.
Right Of Access To The Courts
“Prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S.
817, 821 (1977). Courts have imposed on prison administrators “required remedial measures to
insure that inmate access to the courts is adequate, effective, and meaningful.” Id. at 822. “Our
decisions have consistently required States to shoulder affirmative obligations to assure all
prisoners meaningful access to the courts.” Id. at 824. “The fundamental constitutional right of
access to the courts requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance
from persons trained in the law.” 16 Bounds, 430 U.S. at 828 (emphasis added).
With its opinion in Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court clarified the
ambit of its holding in Bounds. “The right that Bounds acknowledged was the (already wellestablished) right of access to the courts.” Lewis, 518 U.S. at 350 (parentheses and emphasis in
original). The majority traced the “roots” of the right of access to the courts articulated in Bounds,
a history worth repeating in full:
16 In a footnote, the Supreme Court defined its main concern as “protecting the ability of
an inmate to prepare a petition or complaint.” Bounds, 430 U.S. at 828, n.17 (quoting Wolff v.
McDonnell, 418 U.S 539, 576 (1974)).
We had protected that right by prohibiting state prison officials from actively
interfering with inmates’ attempts to prepare legal documents, e.g., Johnson v.
Avery, 393 U.S. 483, 484, 489-490 (1969), or file them, e.g., Ex parte Hull, 312
U.S. 546, 547-549 (1941), and by requiring state courts to waive filing fees, e.g.,
Burns v. Ohio, 360 U.S. 252, 258 (1959), or transcript fees, e.g., Griffin v. Illinois,
351 U.S. 12, 19 (1959), for indigent inmates.
Lewis, 518 U.S. at 350. Having recited this jurisprudential arc, Justice Scalia, writing for the
majority, summarized the right of access to the courts: prisoners must be afforded “a reasonably
adequate opportunity to present claimed violations of fundamental constitutional rights to the
courts.” Id. at 351 (quoting Bounds, 430 U.S., at 825) (internal quotations omitted).
Therefore, the question before this Court is whether the ADC’s execution policies afford
plaintiffs a reasonably adequate opportunity to present claimed constitutional violations during
their executions. While this appears to be an issue of first impression in the Eighth Circuit, other
district courts have addressed analogous challenges to similar execution policies. “There is
unquestionably a right to access the courts involved in the context of executions that inherently
injects the issue of access to counsel into this discussion.” Cooey v. Strickland, 2011 WL 320166
*7 (S.D. Ohio 2011). “[C]ourts have recognized that the traditional access to the courts analysis
requiring actual injury is unworkable in the prisoner execution context.” Hoffman v. Jindal, 2014
WL 130981 *6 (M.D. La. 2014) (citing Cooey, 2011 WL 320166 at *11). In this situation, the
traditional actual injury analysis “makes no sense when many of the claims could not even be
recognized until during the execution process.” Cooey, 2011 WL 320166 at *11. Instead, in this
“unusual context,” the circumstances of an execution “present an inherent risk of actual injury to
the timely and meaningful presentation of non-frivolous claims to a court.” Id. at *11 (explaining
that the circumstances surrounding an execution “present an inherent risk of actual injury to the
timely and meaningful presentation of non-frivolous claims to a court.”)
This Court has considered but declines to adopt the contrary reasoning of the Eleventh
Circuit in Grayson v. Warden. 2016 WL 7118393 (11th Cir. 2016). In that case the Eleventh
Circuit held that the prisoner failed “to establish an actual injury” for purposes of standing.
Grayson, 2016 WL 7118393 at *8. “The possibility that something might go wrong during his
execution . . . does not qualify an actual injury.” Id. (citing Lewis v. Casey, 518 U.S. 343, 351352 (1996)). This Court concludes that the Grayson court misconstrued the alleged constitutional
deprivation at issue. Unlike in Grayson, this Court does not find that plaintiffs have failed to allege
an “actual injury” for standing purposes. Here, plaintiffs do not allege that the imminent injury is
the mere prospect of an Eighth Amendment violation occasioned during the execution. Rather,
plaintiffs allege that the imminent injury is the lack of meaningful access to a court from which
they might seek redress from a prospective Eighth Amendment violation occasioned during the
In a case cited but not followed in Grayson, a district court in the Sixth Circuit held that an
inmate had a right to have counsel view his execution with access to a telephone. Grayson, 2016
WL 7118393 at *8 (citing Coe v. Bell, 89 F.Supp.2d 962, 967 (M.D. Tenn. 2000), vacated by Coe
v. Bell, 230 F.3d 1357 (6th Cir. 2000) (vacated as moot because the prisoner had been executed).
Though the district court decision was vacated due to mootness, its admonition regarding the right
of access to the courts is worth repeating:
Plaintiff has an Eighth Amendment right not to be subjected to cruel and unusual
punishment, and substantial case law supports the contention that this right attaches
until his successful execution. Plaintiff’s right to meaningful access to the courts
to assert that right requires that counsel have some access to the prisoner during the
last hour before the execution and be permitted to witness his execution and have
access to a telephone until execution has been successfully carried out.
Coe, 89 F.Supp.2d at 966 (internal quotations and citations omitted).
Consequently, the district court held that “the plaintiff has the right under the First, Eighth,
and Fourteenth Amendments to have some access to his counsel during the last hour before the
execution and to have his counsel witness the execution.” Id. at 967. “[C]ounsel must have access
to a telephone with an unimpeded outside line at the time that he or she witnesses the execution.”
The Court has also considered the case of Towery v. Brewer, 2012 WL 592749 (D. Ariz.
2012), but does not consider its reasoning applicable in this case. Towery concerned the right to
counsel in the context of communications between prisoners and their counsel. Id., at *18). In
that case, the prisoners alleged that the presence of prison authorities near their holding cell would
hamper their ability for ‘privileged communication’ with their counsel. Id. at *18. Here, plaintiffs’
concern does not arise from alleged deficiencies in the communications between plaintiffs and
their counsel; rather, plaintiffs’ concern is that their counsel witnessing the executions will be
unable to access the courts to seek redress. Therefore, the Court finds the reasoning contained in
the other district court opinions to be more instructive.
“It is for the courts to remedy past or imminent official interference with individual
inmates’ presentation of claims to the courts.” Lewis, 518 U.S. at 350. “‘Meaningful access to the
courts is the touchstone,’” Id., at 351 (quoting Bounds, 430 U.S. at 823). Plaintiffs have alleged
that ADC policies prohibit multiple counsel from witnessing the execution and fail to guarantee
counsel’s reasonable telephonic access to the courts. Without both, plaintiffs allege that ADC
interferes with their right to petition this Court from relief, “should it appear the execution is being
carried out in a way that violates the Eighth Amendment” (Dkt. No. 2-2, 167). Assuming the
factual allegations contained within plaintiffs’ complaint to be true, as the Court must at this stage,
plaintiffs have sufficiently alleged a claim of “imminent official interference” with their right to
petition this Court for relief from imminent actual injury. Lewis, 518 U.S. at 350.
In sum, adopting the reasoning of the district court opinions in Cooey, Hoffman, and Coe,
this Court determines that, as alleged in plaintiffs’ complaint, Director Kelley’s execution protocol
interferes with the plaintiffs’ right of access to the courts. For purposes of the motion to dismiss,
the Court determines that plaintiffs have stated a claim upon which relief may the granted.
Consequently, the Court denies defendants’ motion to dismiss with respect to Claims VI and VII
(Dkt. No. 26).
For the reasons stated, the Court grants in part and denies in part defendants’ motion to
dismiss (Dkt. No. 26).
Dated this 15th day of April, 2017.
Kristine G. Baker
United States District Judge
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