Morales v. Tilton

Filing 406

ORDER by Judge Jeremy Fogel denying (405) Plaintiff Brown's Second Request for Leave to File a Motion for Reconsideration in case 5:06-cv-00219-JF (sp, COURT STAFF) (Filed on 9/25/2010)

Morales v. Tilton

Doc. 406

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Michael Angelo MORALES and Albert Greenwood Brown, Plaintiffs, v. Matthew CATE, Secretary of the California Department of Corrections and Rehabilitation, et al., Defendants. The execution of Plaintiff Albert Greenwood Brown is set for September 29, 2010. The Case Number 5-6-cv-219-JF-HRL Case Number 5-6-cv-926-JF-HRL DEATH-PENALTY CASE ORDER DENYING PLAINTIFF BROWN'S SECOND REQUEST FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

20 Court denied conditionally Brown's motion for a stay of execution, (Doc. No. 401), and denied 21 Brown leave to file a motion for reconsideration, (Doc. No. 403). Defendants subsequently filed 22 a statement amplifying their earlier submission with respect to how they would proceed with an 23 execution using only sodium thiopental and excluding pancuronium bromide and potassium 24 chloride. (Doc. No. 404). In response, Brown again has requested leave to file a motion for 25 reconsideration. (Doc. No. 405.) It is that request that currently is before the Court. 26 In their statement, Defendants indicate that they have only seven and a half grams of

27 sodium thiopental available. (Doc. No. 404 at 3­4.) Brown points out that in the two states that 28 have single-drug lethal-injection protocols, Ohio and Washington, five grams are used and five
Case Nos. 5-6-cv-219-JF-HRL, 5-6-cv-926-JF-HRL, & 5-6-1793-JF-HRL ORDER DENYING PL. BROWN'S SECOND REQUEST FOR LEAVE TO FILE MOT. FOR RECONSIDERATION (DPSAGOK) Dockets.Justia.com

1 more grams are available in reserve. (Id. exs. A & B.) Brown effectively suggests that it is 2 unconstitutional for Defendants to execute him using only sodium thiopental unless they have ten 3 grams of that drug available. 4 However, the Court has found previously that five grams of sodium thiopental, if properly

5 delivered, are sufficient to ensure death. See, e.g., Morales v. Hickman, 415 F. Supp. 2d 1037, 6 1043­44 (N.D. Cal. 2006.) If Defendants execute Brown pursuant to their submission of 7 September 22, 2010, as amplified by their statement filed today, Brown will be exposed to no risk 8 of severe pain from the injection of pancuronium bromide and potassium chloride, and the risk of 9 his being placed in a chemically induced vegetative state as asserted in his instant request is so 10 speculative as not to implicate the Eighth Amendment. 11 The remainder of Brown's concerns, e.g., that the adjustments to the lethal-injection

12 protocol necessary to carry out a single-drug execution are "improvised," (Doc. No. 405 at 5), are 13 primarily technical in nature. This Court's jurisdiction is limited to the question of whether 14 Defendants' actions are in accordance with the Constitution; under existing law as articulated by 15 the United States Supreme Court, Brown must show a demonstrated risk of an Eighth 16 Amendment violation, which he has not done in this context. 17 Accordingly, and good cause appearing therefor, Brown's second request for leave to file

18 a motion for reconsideration of the order conditionally denying a stay of execution is denied. The 19 deadline for the election Brown is entitled to make pursuant to that order denying is hereby 20 extended to 12:00 noon on Sunday, September 26, 2010, in order that Brown and his legal team 21 may give the instant order due consideration. 22 23 24 DATED: September 25, 2010 25 26 27 28 2
Case Nos. 5-6-cv-219-JF-HRL, 5-6-cv-926-JF-HRL, & 5-6-1793-JF-HRL ORDER DENYING PL. BROWN'S SECOND REQUEST FOR LEAVE TO FILE MOT. FOR RECONSIDERATION (DPSAGOK)

IT IS SO ORDERED.

______/s/____________________________ JEREMY FOGEL United States District Judge