Jones v. Kelley et al
ORDER denying 8 MOTION for Preliminary Injunction. Signed by Judge Kristine G. Baker on 4/21/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
JACK HAROLD JONES
Case No. 5:17-cv-00111 KGB
WENDY KELLEY, et al.
Plaintiff Jack Harold Jones brings this “as applied” challenge under 42 U.S.C. § 1983 and
the Eighth Amendment of the United States Constitution to the state of Arkansas’s lethal injection
protocol. Mr. Jones and eight other inmates serving on death row in Arkansas brought a “facial”
challenge to Arkansas’s lethal injection protocol in a separate action before this Court. See
McGehee v. Hutchinson¸ No. 4:17-cv-00179 (E.D. Ark. filed March 27, 2017). Plaintiffs filed
McGehee on March 27, 2017. Mr. Jones, who is scheduled to be executed on April 24, 2017, filed
this action along with a motion for a preliminary injunction on April 17, 2017. Before the Court
is Mr. Jones’ motion for a preliminary injunction (Dkt. No. 8).
The Court held an evidentiary hearing on Mr. Jones’ motion for a preliminary injunction
on April 21, 2017. The parties agreed to incorporate the record and all exhibits received during
the Court’s evidentiary hearings conducted in McGehee. The Court heard additional testimony
and received additional exhibits related to Mr. Jones’ as applied challenge at the April 21, 2017,
hearing. Mr. Jones called as witnesses Dr. Joel Zivot, who testified at the Court’s hearing in
McGehee, as well as Director Wendy Kelley. Dr. Zivot reviewed all of Mr. Jones’ medical records
and conducted an in person examination of Mr. Jones on March 23, 2017. In reaching its
determination on Mr. Jones’ motion for a preliminary injunction, the Court considered all of the
testimony and evidence presented at the Court’s evidentiary hearings in McGehee, the attachments
to the parties’ pleadings and filings in this action, and the testimony and evidence offered at the
Court’s evidentiary hearing in this action.
When determining whether to grant a motion for preliminary injunction, this Court
considers: (1) the threat of irreparable harm to the movant; (2) the movant’s likelihood of success
on the merits; (3) the balance between the harm to the movant and the injury that granting an
injunction would cause other interested parties; and (4) the public interest. Kroupa v. Nielsen, 731
F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 114 (8th Cir.
1981)). In cases where condemned inmates seek “time to challenge the manner in which the State
plans to execute them[,]” plaintiffs must show “a significant possibility of success on the merits.”
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)). Preliminary injunctive relief is an extraordinary
remedy, and the party seeking such relief bears the burden of establishing the four Dataphase
factors. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The focus is on “whether the
balance of the equities so favors the movant that justice requires the court to intervene to preserve
the status quo until the merits are determined.” Id. Furthermore, before granting a request for stay
of an execution, a “district court must consider not only the likelihood of success on the merits and
the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily
in bringing the claim, which counsels against the entry of an equitable remedy.” Nooner v. Norris,
491 F.3d 804, 808 (8th Cir. 2007) (quoting Nelson v. Campbell, 541 U.S. 637, 649-50 (2004)
(internal quotation marks omitted)).
The Court denies Mr. Jones’ motion for a preliminary injunction (Dkt. No. 8). A court
considering a stay of execution must “apply ‘a strong equitable presumption against the grant of a
stay where a claim could have been brought at such a time as to allow consideration of the merits
without requiring entry of a stay.’” Hill, 547 U.S. at 584 (quoting Nelson, 541 U.S. at 650). That
same equitable standard applies to this as-applied challenge. See Johnson v. Lombardi, 809 F.3d
388, 389 (8th Cir. 2015) (reciting the Hill standard when denying a motion for stay of execution
based on an as-applied challenge to the method of execution).
Because that standard applies to as-applied challenges, and given the Eighth Circuit’s
decision in McGehee, which is binding on this Court, this Court feels compelled to observe that
Mr. Jones’ “use of ‘piecemeal litigation’ and dilatory tactics is sufficient reason by itself to deny
a stay.” McGehee v. Hutchinson, No. 17-1804, 2017 WL 1404693, at *2 (8th Cir. Apr. 17, 2017),
cert. denied (Apr. 21, 2017) (per curiam) (quoting Hill, 547 U.S. at 584-85). This Court
recognizes, however, that the Eighth Circuit may confine that determination to the facial challenge
in McGehee and except from it the as-applied challenge here, given the nature of the as applied
inquiry into an inmate’s specific medical condition when execution is imminent. See Bucklew v.
Lombardi, 783 F.3d 1120, 1127 (8th Cir. 2015) (citing Siebert v. Allen, 506 F.3d 1047, 1050 (11th
As a result, the Court will proceed with its analysis. The Court also finds that, in the light
of the Eighth Circuit’s decision in McGehee, Mr. Jones failed to offer sufficient evidence to show
that there is a significant possibility that he will succeed on the merits of his method of execution
Diligence In Bringing This Action
On April 18, 2017, the Court entered a Show Cause Order, directing Mr. Jones to show
cause why this Court should not find, consistent with the Eighth Circuit’s decision in McGehee,
that this action must be dismissed (Dkt. No. 12). Mr. Jones filed a timely response to the Court’s
Show Cause Order (Dkt. No. 16). Mr. Jones argues that he was not dilatory in filing his as applied
claim on April 17, 2017, because:
His as-applied claim is analogous to a competency claim under Ford v. Wainwright,
477 U.S. 399 (1986), meaning he “was not dilatory in bringing the instant action because an asapplied challenge should ripen with an execution date” (Id., at 1-2); and
His medical condition is fluid and has gotten worse, meaning “assessment of the
risks of the lethal injection protocol should be assessed at the time his execution is imminent” (Id.,
Even assuming that Mr. Jones is correct that his claim did not become ripe until Governor
Hutchinson set his execution date on February 27, 2017, and that his physical condition should be
evaluated when execution is imminent, the Court finds that, consistent with and based upon the
Eighth Circuit’s decision in McGehee, Mr. Jones was not diligent in bringing this action. Mr.
Jones filed a facial challenge to the lethal injection protocol on March 27, 2017. Dr. Zivot
examined Mr. Jones on March 23, 2017, before the complaint in McGehee was filed (Dkt. No. 16,
at 19). In the light of the Eighth Circuit’s decision in McGehee and based upon that decision, the
Court finds that Mr. Jones could and should have brought his as applied claim earlier than April
17, 2017. He provides no good reason for why his as applied claim could not have been included
in McGehee or been filed at the same time as McGehee. The Court finds that Mr. Jones has split
his claims and has not been diligent in pursuing his as applied claims.
Significant Possibility Of Success
Even if Mr. Jones was diligent in bringing this action, as a result of the Eighth Circuit’s
decision in McGehee, the Court would deny his motion for a preliminary injunction. Challenges
to a state’s method of execution under the Eighth Amendment are analyzed under a two-prong test
established by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), and Glossip v. Gross, 135
S. Ct. 2726 (2015). Plaintiffs have the burden of proving that “the State’s lethal injection protocol
creates a demonstrated risk of severe pain” and “the risk is substantial when compared to the
known and available alternatives.” Glossip, 135 S. Ct. at 2737 (citing Baze, 553 U.S. at 61). Under
the first prong of Glossip, Mr. Jones must show that “the method presents a risk that is ‘sure or
very likely to cause serious illness and needless suffering, and give rise to ‘sufficiently imminent
dangers.’” Id. (citing Baze, 553 U.S. at 50). Under the second prong of Glossip, Mr. Jones must
offer an alternative method that is “‘feasible, readily implemented, and in fact significantly
reduce[s] a substantial risk of severe pain.’” Id. (quoting Baze, 553 U.S. at 52).
Mr. Jones has the burden of establishing both prongs of Glossip in this as applied challenge.
See Johnson v. Lombardi, 809 F.3d 388, 391 (8th Cir.), cert. denied, 136 S. Ct. 601, 193 L. Ed. 2d
480 (2015) (considering both prongs of Glossip in an as-applied action); but see Bucklew v.
Lombardi, 783 F.3d 1120, 1129 (8th Cir. 2015) (Bye, J., concurring in the result) (“[E]ven
assuming the Court is correct a death row inmate in a facial challenge must identify an alternative
method of execution, a death row inmate in an as-applied challenge is not required to do so.”).
The Court addresses the second prong of Glossip first. Bucklew, 783 F.3d at 1128 (“‘The District
Court will have the usual authority to control the order of proof, and if there is a failure of proof
on the first element that it chooses to consider, it would not be an abuse of discretion to give
judgment for [defendants] without taking further evidence.’”) (quoting Helling v. McKinney, 509
U.S. 25, 35 (1993)).
Alternative Method Of Execution
The Court finds that Mr. Jones failed to establish that there is a significant possibility that
he could show that there is an alternative method of execution that is “‘feasible, readily
implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’” Glossip, 135
S. Ct. at 2737 (quoting Baze, 553 U.S. at 52). In McGehee, the Eighth Circuit established that for
an alternative method of execution to be available under Glossip, “the State must have access to
the alternative and be able to carry out the alternative method relatively easily and reasonably
quickly.” McGehee v. Hutchinson, 2017 WL 1404693, at *3 (citing Arthur v. Comm'r, Ala. Dep't
of Corr., 840 F.3d 1268, 1300 (11th Cir. 2016), cert. denied, 137 S. Ct. 725 (2017)). The Eighth
Circuit determined that plaintiffs failed to meet their burden at the preliminary injunction stage
because the availability of their proposed alternatives was “too uncertain to satisfy the rigorous
standard under the Eighth Amendment.” Id.
In this case, Mr. Jones does not identify any alternative methods of execution in addition
to those suggested in McGehee (Dkt. No. 2, at 10-13). He did not offer additional evidence
pertaining to his proposed alternative methods during this evidentiary hearing. Mr. Jones offers
additional safeguards, which he contends “the State could easily establish to prevent violating his
Eighth Amendment right to be free from cruel and unusual punishment” (Dkt. No. 9, at 10-11).
However, Mr. Jones does not establish how these additional safeguards would “in fact significantly
reduce a substantial risk of severe pain.” Baze, 553 U.S. 35 at 52. Therefore, in the light of the
Eighth Circuit’s findings in McGehee, which are binding on this Court, Mr. Jones has not met his
burden, at this stage, of establishing the second prong of Glossip.
In McGehee, the Eighth Circuit found that this Court’s “factual findings would not support
a conclusion that the prisoners have a likelihood of success in showing that the execution protocol
is sure or very likely to cause severe pain.” McGehee, 2017 WL 1404693, at *2. Going further,
the Eighth Circuit found that “[t]he equivocal evidence recited by the district court falls short of
demonstrating a significant possibility that the prisoners will show that the Arkansas protocol is
‘sure or very likely’ to cause severe pain and needless suffering.” Id., at *3. The Court finds that
Mr. Jones fails to offer sufficient evidence in addition to the evidence already presented to establish
a significant possibility that he could successfully show that Arkansas’s execution protocol, as
applied to him, is sure or very likely to cause severe pain.
Dr. Zivot testified that, in his opinion, midazolam would likely “not work” on Mr. Jones
because Mr. Jones takes prescribed gabapentin and methadone and suffers from diabetes and sleep
apnea. Gabapentin is an anticonvulsant used to treat seizures and to treat nerve pain in adults.
Methadone is a long acting narcotic used as a pain reliever. According to Dr. Zivot, individuals
who take chronic gabapentin and methadone, especially at the significant doses that Mr. Jones
takes, will experience decreased sensitivity to drugs like midazolam. As a result, Dr. Zivot opined
that the consciousness check called for by the Arkansas Midazolam Protocol will fail, and Mr.
Jones will die as a consequence of the vecuronium bromide by suffocating when he is aware that
he is suffocating, which would be extremely painful and terrifying. Further, Dr. Zivot has concern
regarding Mr. Jones’s status as a diabetic. His blood sugar fluctuates wildly, and a failure to
monitor his blood sugar around the time of the execution may lead to very low blood sugar
resulting in brain injury, according to Dr. Zivot. He has had an amputation due to his very poor
circulation and diabetes. Mr. Jones also was diagnosed with sleep apena by Dr. Zivot during his
physical examination. Dr. Zivot testified that, as a result of sleep apena, if given midazolam, it is
very likely that Mr. Jones would react differently from other condemned inmates. Dr. Zivot stated
that this condition, in combination with Mr. Jones’s other conditions, will result in midazolam not
working on Mr. Jones and leading to an extremely painful and terrifying death by suffocation when
Mr. Jones is aware and not unconscious.
Based on the Eighth Circuit’s decision in McGehee, the Court finds that Dr. Zivot’s
testimony, in addition to the evidence already considered by this Court in McGehee, “falls short
of demonstrating a significant possibility that [Mr. Jones] will show that the Arkansas protocol is
‘sure or very likely’ to cause severe pain and needless suffering.” Id.
Mr. Jones’ motion for a preliminary injunction is denied (Dkt. No. 8).
So ordered this 21st day of April, 2017.
Kristine G. Baker
United States District Judge
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