Johnson v. Kelley et al
ORDER dismissing this action with prejudice. All pending motions are denied as moot. Signed by Judge Kristine G. Baker on 4/18/2017. (thd)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
STACEY EUGENE JOHNSON
Case No. 5:17-cv-00112 KGB
WENDY KELLEY, et al.
Plaintiff Stacey Eugene Johnson 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. Johnson 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. A complete procedural history of the events leading to the filing of
the complaint in McGehee is included in the Court’s Order on plaintiffs’ motion for a preliminary
injunction, and the Court adopts that history for the purposes of this Order.
Hutchinson¸ No. 4:17-cv-00179 (E.D. Ark. filed Apr. 15, 2017) (order granting motion for
After permitting limited expedited discovery and conducting a four-day evidentiary
hearing, the Court granted plaintiffs’ motion for a preliminary injunction and stayed plaintiffs’
executions. On April 17, 2017, the Eighth Circuit Court of Appeals, sitting en banc, concluded
that this Court abused its discretion in staying the executions and granted the state of Arkansas’s
motion to vacate the stays. See McGehee v. Hutchinson, No. 12-1804, slip op. at *2 (8th Cir. Apr.
17, 2017) (per curiam). In its decision, the Eighth Circuit found that “the prisoners’ use of
‘piecemeal litigation’ and dilatory tactics is sufficient reason by itself to deny a stay.” Id., at *3
(quoting Hill v. McDonough, 547 U.S. 573, 584-85 (2006)).
Mr. Johnson, who is scheduled to be executed on April 20, 2017, filed this action on April
17, 2017. In this action, Mr. Johnson claims that, due to his “unique and specific medical
conditions[,] . . . there is a substantial and unjustifiable risk that Arkansas’s lethal-injection
protocol will affect Mr. Johnson differently than an average healthy inmate and will cause severe
pain and serious harm to him” (Dkt. No. 2, at 1). In his complaint, Mr. Johnson states that he
“suffers from multiple health conditions, including hypertension, angina and probable lung and
heart disease” (Id., at 2). Mr. Johnson attaches a declaration of his expert witness, Joel Zivot,
M.D., dated April 14, 2017 (Id., at 16-21). Dr. Zivot performed a physical examination of Mr.
Johnson on March 23, 2017 (Id., at 18). Dr. Zivot testified as a plaintiffs’ expert in McGehee.
On April 18, 2017, the Court entered a Show Cause Order, directing Mr. Johnson 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. 11). Mr. Johnson filed a timely response to the Court’s
Show Cause Order (Dkt. No. 15).
Consistent with and based upon the Eighth Circuit’s decision in McGehee, the Court finds
that Mr. Johnson was not diligent in bringing this action and rejects Mr. Johnson’s arguments to
the contrary. In his response to the Court’s Show Cause Order, Mr. Johnson 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); 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. Johnson 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. Johnson was not diligent in bringing this
action. Mr. Johnson filed a facial challenge to the lethal injection protocol on March 27, 2017.
Dr. Zivot examined Mr. Johnson on March 23, 2017, before the complaint in McGehee was filed
(Dkt. No. 15, at 18). In the light of the Eighth Circuit’s decision in McGehee and based upon that
decision, the Court finds that Mr. Johnson 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. Consistent with and
based on the Eighth Circuit’s decision in McGehee, the Court finds that Mr. Johnson has split his
claims and has not been diligent in pursuing his as applied claims.
The Court determines that a hearing on this issue is unwarranted. 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 v. Campbell, 541 U.S. 637, 650
(2004)). 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). Consistent
with and based on the Eighth Circuit’s decision in McGehee the Court finds that this “strong
equitable presumption” weighs against granting Mr. Johnson declaratory and injunctive relief in
this action. Consistent with and based on the Eighth Circuit’s decision in McGehee, the Court
finds that Mr. Johnson’s use of “piecemeal litigation” and dilatory tactics is a sufficient reason to
deny a stay. See McGehee, No. 12-1804, slip op. at *2. The Court dismisses this action with
prejudice. All pending motions are denied as moot.
So ordered this 18th day of April, 2017.
Kristine G. Baker
United States District Judge
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