Creech et al v. Reinke et al

Filing 36

MEMORANDUM DECISION AND ORDER granting 27 Motion to Seal; denying 32 Motion to Strike ; granting 10 Motion to Dismiss; denying 16 Motion to Stay; granting 17 Motion for Leave to File Excess Pages; granting 21 Motion for Leave to File Excess Pages; granting 23 Motion to Seal. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

THOMAS E. CREECH, JAMES H.
HAIRSTON, RICHARD LEAVITT, and
GENE STUART,

Case No. 1:12-cv-00173-EJL
MEMORANDUM DECISION
AND ORDER

Plaintiffs,
v.

BRENT REINKE, in his official capacity
as Direct, Idaho Department of
Correction; KEVIN KEMPF, in his
official capacity as Chief, Operations
Division, Idaho Department of
Correction; JEFF ZMUDA, in his
official capacity as Deputy Chief, Bureau
of Prisons, Idaho Department of
Correction; JOSH TEWALT, in his
official capacity as Deputy Chief, Bureau
of Prisons, Idaho Department of
Correction; and RANDY BLADES, in
his official capacity as Warden, Idaho
Maximum Security Institution;
Defendants.

INTRODUCTION
On April 4, 2012, four Idaho prisoners under death sentences filed a Complaint
challenging the Idaho Department of Correction’s execution protocol and procedures.
(Dkt. 1.) On May 15, Defendants responded with a Motion to Dismiss under Rule

MEMORANDUM DECISION AND ORDER - 1

12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 9.)
In Plaintiff Richard Leavitt’s state court criminal case, the State of Idaho sought
and received a death warrant from the state court for Leavitt, and an execution date of
June 12, 2012, has been set. As a result of the execution date, the Court accelerated
briefing on Leavitt’s claims only.
No execution dates have yet been scheduled for the other three Plaintiffs. Their
briefing schedule has been un-altered to allow them additional time to address the
pending Motion to Dismiss.
With his execution date set, Leavitt has now filed an Emergency Motion for
Preliminary Injunction or Stay of Execution, seeking an order from this Court staying the
execution so that he may proceed in the current federal lawsuit to alter the manner in
which his execution will occur, before his claims become moot as a result of his
execution. (Dkt. 16.) The Court has considered the parties’ arguments, and for the reasons
set forth herein, it issues the following Order.
BACKGROUND
Richard Leavitt was convicted of first degree murder, for the stabbing death of
Danette Elg in Blackfoot, Idaho. He was first sentenced to death in 1985 and, following a
remand from the Idaho Supreme Court, he was resentenced to death in 1990. State v.
Leavitt, 822 P.2d 523 (Idaho 1991). For the next twenty-two years, Leavitt sought relief
from his convictions and death sentence in state court and federal court, and although he
has been granted federal habeas relief twice, those rulings have been reversed by the
MEMORANDUM DECISION AND ORDER - 2

Ninth Circuit Court of Appeals. Leavitt v. Arave, 383 F.3d 809, 840 (9th Cir. 2004);
Leavitt v. Arave, 646 F.3d 605, 616 (9th Cir. 2011). The United States Supreme Court
recently denied Leavitt’s petition for writ of certiorari, effectively ending his collateral
appeals, and an execution date is now set for June 12, 2012.
Leavitt’s scheduled execution would be the second to occur in Idaho within a year.
In October of 2011, the Idaho Department of Correction (IDOC) adopted a revised threedrug lethal injection protocol in preparation for the execution of Paul Rhoades (the “2011
Protocol”). Rhoades challenged the 2011 Protocol in a civil action in this Court on Eighth
Amendment and other grounds, and the litigation was expedited once a death warrant was
issued by the state court. Rhoades v. Reinke, 2011 WL 5520446 (D. Idaho 2011)
(“Rhoades I”). After holding an evidentiary hearing, Magistrate Judge Ronald E. Bush
denied Rhoades’s motion for a stay of execution pending the completion of the litigation.
Id. at *22. Judge Bush concluded, in relevant part, that Rhoades had failed to show a
substantial likelihood of success on the merits of his Eighth Amendment claim; that is, he
had not established that he faced a substantial risk of serious pain from the
implementation of the 2011 Protocol. Id.
The Ninth Circuit affirmed that decision on appeal, see Rhoades v. Reinke, 671
F.3d 856, 863 (9th Cir. 2011) (Rhoades II), and Rhoades was executed on November 18,
2011. The case in the District Court was then dismissed as moot. (Dkt. 86 in Case No.
1:11-cv-00445-REB.)
The IDOC amended the execution protocol in January of 2012 (the “2012
MEMORANDUM DECISION AND ORDER - 3

Protocol”). Leavitt has now joined death-row prisoners Thomas Creech, James Hairston,
and Gene Stuart in challenging the 2012 Protocol. In their Complaint, brought primarily
under 42 U.S.C. § 1983, the Plaintiffs raise the following seven claims:
1.

The 2012 Protocol contains discretionary elements and uncertainties,
which deprives the Plaintiffs of reasonable notice and an opportunity
to object to the lethal injection procedures that will apply to them, in
violation of their rights to due process of law under the Fourteenth
Amendment;

2.

The 2012 Protocol exposes Plaintiffs to a substantial risk of serious
pain, violating their rights against cruel and unusual punishment
under the Eighth Amendment;

3.

The use of adulterated or illegally obtained drugs creates a
substantial risk of harm under the Eighth Amendment;

4.

The use of pentobarbital in the three-drug protocol exposes Plaintiffs
to a substantial risk of harm under the Eighth Amendment, though
the use of a single-drug would not;

5.

Idaho is required to adopted a one-drug execution protocol under the
Eighth Amendment;

6.

Executing any Plaintiff under a protocol that is more likely,
compared to alternatives, to result in severe pain infringes his rights
under the Eighth and Fourteenth Amendments; and

7.

State officials have or will violate the Controlled Substances Act, 21
U.S.C. § 801, et seq., and the Food Drug and Cosmetics Act, 21
U.S.C. § 301 et seq., because no appropriately licensed medical
practitioner will obtain or administer the controlled substances used
to execute Plaintiffs.

(Dkt. 1, pp. 11-37.)
Events that have unfolded rapidly since the filing of Plaintiffs’ Complaint in April
have narrowed the claims and issues before the Court, at least as they pertain to Plaintiff
MEMORANDUM DECISION AND ORDER - 4

Leavitt.
On May 15, Defendants filed a Motion to Dismiss, arguing, in part, that all of
Leavitt’s claims are subject to dismissal without prejudice for failure to exhaust his
administrative remedies, and that Claims 3, 4, 5, 6, and 7 for all Plaintiffs should be
dismissed with prejudice for failure to state a claim upon which relief can be granted.
(Dkt. 10.) Two days later, an Idaho state judge signed a death warrant for Leavitt, setting
the June 12 execution date. In response, this Court issued an expediting briefing schedule
for Leavitt to file a motion to stay the execution, if he intended to do so, and for briefing
on Defendants’ Motion to Dismiss his claims. (Dkt. 11.)
On May 23, Leavitt filed his Emergency Motion for Preliminary Injunction or Stay
of Execution. (Dkt. 16.) Many of the arguments in his Motion challenge the “unfettered
discretion” of the Idaho Department of Correction (“IDOC”) to change the protocol at
any time, which he contends violates his constitutional right to due process of law, and
challenge the use of a three-drug execution protocol as exposing him to a serious risk of
pain. (Dkt. 16-1, pp. 4-27.)
However, on May 25, the IDOC notified Leavitt and this Court that it would elect
to use one drug – an injection of pentobarbital – for Leavitt’s execution. (Dkt. 18.) In that
same Notice, IDOC indicated that it would not invoke its authority “to deviate from the
one-drug pentobarbital protocol outlined in [the 2012 Protocol] for the execution of
Richard Leavitt on June 12, 2012.” (Id. at 2.)
This Notice has significantly changed the posture of the case in short order. In
MEMORANDUM DECISION AND ORDER - 5

their Complaint, Plaintiffs had alleged that the Eighth Amendment required the IDOC to
use pentobarbital as part of a one-drug method of execution procedure. (Dkt. 1, pp. 29-31;
claims 4, 5, 6.) Now, because IDOC will use that drug in Leavitt’s execution, he will
receive much of the relief that he previously sought in the Complaint. Leavitt seems to
acknowledge this, conceding in his Opposition to Defendants’ Motion to Dismiss that
IDOC’s Notice renders Claims 1, 4, 5, and 6 moot, as long as IDOC adheres to its
representation that it will not invoke its authority to deviate from the 2012 Protocol. (Dkt.
19, pp. 2-3.)
The Court agrees with Leavitt’s assessment that IDOC’s Notice that it will use
pentobarbital as part of the one-drug method of execution, complying in all material
respects with the 2012 Protocol, and that it will not exercise its discretion to deviate
materially from that protocol during Leavitt’s execution, is binding on the Defendants.
See Towrey v. Brewer, 672 F.3d 650 (9th Cir. 2012) (accepting “representations and
undertakings as binding on the State”). IDOC’s Notice has therefore mooted Leavitt’s due
process arguments in support of Claim 1, and his allegations that the Eighth Amendment
requires the use of a one-drug pentobarbital execution, as set out in Claims 4, 5, and 6,
leaving only Claim 2, 3, and 7 still at issue as to Leavitt.
With the issues narrowed, the Court will first address Defendants’ argument that
Leavitt failed to exhaust his prison administrative remedies as to all of his claims in this
lawsuit.

MEMORANDUM DECISION AND ORDER - 6

DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES UNDER THE PLRA
1.

Standard of Law
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be

brought with respect to prison conditions under section 1983 of this title . . . until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “There is
no question that exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). This requirement is
intended to give “prison officials an opportunity to resolve disputes concerning the
exercise of their responsibilities before being haled into court.” Id. at 204.
Proper exhaustion is required, meaning that “a prisoner must complete the
administrative review process in accordance with the applicable procedural rules,
including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo,
548 U.S. 81, 88 (2006). “[I]t is the prison’s requirements, and not the PLRA, that define
the boundaries of proper exhaustion.” Jones, 549 U.S. at 218.
By its plain terms, however, the PLRA requires prisoners to exhaust only those
avenues of relief that are “available” to them. 42 U.S.C. § 1997e(a). When prison officials
prevent a prisoner from using the correct channels to route a complaint, an administrative
remedy that may be theoretically in place will not be available to the prisoner as a
practical matter, and the failure to adhere to technical requirements will be excused.
Nuñez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010); see also Dole v. Chandler, 438

MEMORANDUM DECISION AND ORDER - 7

F.3d 804, 809 (7th Cir. 2006). Confusing or contradictory information given to a prisoner
is also pertinent “because it informs [the] determination of whether relief was, as a
practical matter, ‘available.’” Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005).
A claim that a prisoner failed to exhaust administrative remedies is an affirmative
defense that should be brought as an unenumerated motion to dismiss under Rule 12(b) of
the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
2002). The district court may consider matters outside of the pleadings and can resolve
disputed issues of fact, if necessary. Id. Defendants bear the burden of raising and proving
the absence of exhaustion. Brown, 422 F.3d at 936-37.
2.

Prison Administrative Grievance Procedures
A prisoner held in custody of the Idaho Department of Correction (IDOC) must

attempt to resolve any “problem or action” related to his incarceration using the prison’s
internal grievance system. (Byrne Aff., Exhibit C, Standard Operating Procedure
316.02.01.001 (Version 2.1), Dk. 10-5.) IDOC has a relatively straightforward three-step
system, which requires the prisoner to submit an informal concern form describing the
problem, file a formal grievance, and submit an appeal of any adverse decision. (Byrne
Aff.,¶¶ 5-11.)
The prisoner begins this process by routing the concern form to the staff member
most capable of addressing the problem. (Id. at ¶ 6.) If the issue is not resolved, the
prisoner must complete a grievance form, attach a copy of the concern form, and file the
grievance within 30 days of the incident. (Id. at ¶ 7) The “grievance coordinator” at the
MEMORANDUM DECISION AND ORDER - 8

prison will route a properly-completed grievance to the appropriate staff member, who
must respond within 14 days. (Id. at ¶ 8.)
After the staff member responds, the coordinator forwards the grievance to the
“reviewing authority,” who, after reviewing the prisoner’s complaint and the staff
member’s response, issues a decision. (Id.) If the prisoner is dissatisfied with the
reviewing authority’s decision, he may then appeal within 5 days to the “appellate
authority.” (Id. at ¶ 9.) When the appellate authority issues a final decision, the grievance
is routed back to the inmate, thus concluding the administrative review process. (Id. at
¶¶10-11.)
3.

Discussion of Whether the Statute Requires Exhaustion for Lethal Injection
Claims
Leavitt does not dispute Defendants’ assertion that he did not exhaust the

administrative remedies for his method-of-execution claim through the prison grievance
procedure. There is no evidence in the record that Leavitt made any effort to do so.
Defendants have submitted evidence showing that Leavitt was aware of the prison
grievance system, knew how to use it, and, in fact, used it for conditions-of-confinement
issues such as not being able to live in the general population, not having access to hobby
craft supplies, and disagreements with the handling of his mail. (Byrne Aff., ¶ 17, Exhibit
H.)
Rather than contest the fact of nonexhaustion, Leavitt argues that, as a matter of
law, Defendants are not entitled to summary dismissal on the issue of exhaustion.

MEMORANDUM DECISION AND ORDER - 9

Defendants argue that the Supreme Court of the United States has determined that a §
1983 action challenging an execution procedure fits within the category of cases to which
exhaustion applies; in other words, under the statute, it is an action “with respect to prison
conditions.” Nelson v. Campbell, 541 U.S. 637, 650 (2004); 42 U.S.C. § 1997e(a). Leavitt
counters that the language in Nelson addressing exhaustion as to challenges to the method
of execution is dicta, and that, under the statute, a challenge to the method of execution is
not a challenge to the conditions of prison life.
The district courts that have addressed this issue in the death penalty context have
determined that the statute requiring exhaustion of administrative remedies does apply to
method-of-execution challenges. In Reid v. Johnson, 333 F.Supp. 2d 543 (E.D. Va. 2004),
the court determined that the plaintiff’s action was subject to dismissal for failure to
exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a), based on Nelson v.
Campbell, but it did not engage in an analysis of the issue. Id. at 552.
In Walton v. Johnson, 2006 WL 2076717 (E.D. Va. 2006), the court dismissed the
plaintiff’s § 1983 case based on failure to exhaust administrative remedies. There, the
district court cited Nelson v. Campbell, concluding as follows:
Walton cannot avoid the PLRA exhaustion requirement, and the court is
without discretion to dispense with it; therefore, the entire action must be
dismissed without prejudice pursuant to § 1997e(a) of the PLRA.
Id. at *6.
In Blankenship v. Owens, 2011 WL 610967 (N.D. Ga. 2011), the district court
relied on Nelson and Hill to determine that exhaustion was required and the plaintiff’s
MEMORANDUM DECISION AND ORDER - 10

claims subject to dismissal for failure to exhaust. In Bowling v. Hass, 2007 WL 403875
(E.D. Ky. 2007), the district court relied on Porter v. Nussle, 534 U.S. 516 (2002), to
determine that lethal injection challenges must be submitted to the prison through the
administrative grievance procedure in the first instance, notwithstanding the possibility
that, upon receipt of the grievance, the prison could determine, based upon its particular
grievance policy, that the particular claim was not grievable.
This Court agrees with Leavitt that the Nelson language is dicta; thus, a statutory
analysis is in order to answer the question at hand. In Porter v. Nussle, the United States
Supreme Court engaged in a detailed analysis of § 1997e(a) to determine whether that
statute required an inmate to exhaust excessive force claims against individual prison
officials. The Supreme Court reviewed (1) the statute’s text, (2) the statute’s context, and
(3) prior United States Supreme Court decisions relating to “[s]uits by prisoners,” as
§ 1997e(a) is titled. 534 U.S. at 525. This Court follows that model of analysis.
A.

The Statute’s Text

The United States Supreme Court has instructed that, “[i]n ascertaining the plain
meaning of [a] statute, the court must look to the particular statutory language at
issue. . . .” McCarthy v. Bronson, 500 U.S. 135, 139 (1991) (citing K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 291 (1988)).
The text of subsection (a) is unequivocal in scope as to prisoners bringing
conditions-of-confinement suits: “No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner
MEMORANDUM DECISION AND ORDER - 11

confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). However, Congress did
not define the term “prison conditions” in the statute.
B.

The Statute’s Context

The statutory context of § 1997e is also important. The Supreme Court has
observed: “‘In determining the meaning of the statute, we look not only to the particular
statutory language, but to the design of the statute as a whole and to its object and
policy.’” McCarthy, 500 U.S. at 139 (quoting Crandon v. United States, 494 U.S. 152,
158).
In Nussle, the Supreme Court noted that the term “prison conditions” should not be
read “in isolation,” but “in its proper context,” which includes the unqualified title “Suits
by prisoners.” 534 U.S. at 527. In response to an argument that Congress intended to
exempt a certain category of prisoner suits from reach of the exhaustion requirement, the
Supreme Court aptly observed: “[T]his unqualified heading scarcely aids the argument
that Congress meant to bi-sect the universe of prisoner suits.” Nussle, 534 U.S. at 527
(internal citations omitted); id. at 526-27 (finding support in McCarthy, 500 U.S. at 139
(“We found no suggestion in § 636(b)(1)(B) [including the phrase ‘challenging conditions
of confinement’] that Congress meant to divide prisoner petitions ‘into subcategories.’”)).
Here, the statutory history shows that exhaustion of administrative remedies in
prisoner civil suits has developed from no requirement, to a discretionary rule, and,
finally, to a mandatory rule. Before 1980, prisoners could file a civil rights action in
MEMORANDUM DECISION AND ORDER - 12

federal court without first pursuing administrative remedies. See Wilwording v. Swenson,
404 U.S. 249, 251 (1971) (per curiam). In 1980, Congress introduced a discretionary
exhaustion provision for civil rights suit brought by state prisoners. See Civil Rights of
Institutionalized Persons Act, 94 Stat. 352, as amended, 42 U.S.C. § 1997e (1994 ed.) In
1996, Congress “invigorated the exhaustion prescription,” Nussle, 534 U.S. at 424, by
enacting a mandatory exhaustion provision, as part of the Prison Litigation Reform Act
(PLRA). See 42 U.S.C. § 1997e(a) (1994 ed., Supp. V); Booth v. Churner, 532 U.S. 731,
739 (2001). “And unlike the previous provision, which encompassed only § 1983 suits,
exhaustion is now required for all “action [s] . . . brought with respect to prison
conditions,” whether under § 1983 or “any other Federal law.” Nussle, 534 U.S. at 524.
The purpose of the PLRA was to curtail “a sharp rise in prisoner litigation in the
federal courts.” Woodford v. Ngo, 548 U.S. at 84. The United States Supreme Court
called the “strengthened” exhaustion provision of the PLRA a “centerpiece of the PLRA’s
effort ‘to reduce the quantity . . . of prisoner suits.” Id. at 84-85 (citing Nussle, 534 at
524). Exhaustion serves a two-fold purpose: (1) to give an agency “an opportunity to
correct its own mistakes with respect to the programs it administers before it is haled into
federal court”; and (2) to resolve claims “much more quickly and economically in
proceedings before an agency than in litigation in federal court.” Woodford v. Ngo, 548
U.S. at 89.
C.

Prior Supreme Court Decisions Relating to “Suits by Prisoners”

Because Congress did not define the term “prison conditions” in the statute, it is
MEMORANDUM DECISION AND ORDER - 13

essential to review United States Supreme Court precedent governing suits by prisoners.
The Supreme Court generally “presume[s] that Congress expects its statutes to be read in
conformity with th[e] Court’s precedents.” Nussle, 534 at 528 (citing United States v.
Wells, 519 U.S. 482, 495 (1997)).
The Nussle Court looked to two prior cases that had discussed “conditions of
confinement,” to draw support for its conclusion that “conditions of confinement” did, in
fact, include both isolated incidents of excessive force, as well as larger, institution-wide
problems of excessive force: Preiser v. Rodriquez, 411 U.S. 475 (1973), and McCarthy v.
Bronson, 500 U.S. 135, 139 (1991).
In Preiser v. Rodriguez, the Supreme Court considered whether state prisoners
could seek injunctive relief through a civil rights action to compel restoration of lost
good-time credits. The federal district court granted relief, ordering that the inmate be
released from prison on parole, because his conditional release date had already passed.
Id. at 479. A panel of the United States Court of Appeals reversed, but the en banc Court
of Appeals affirmed, whereupon the United State Supreme Court reversed.
The great debate in Preiser was whether such claims must be asserted in habeas
corpus (which required state court exhaustion) or in civil rights (which at that time did not
require any exhaustion of state remedies). The Preiser Court noted that prisoner cases in
federal court fit within one of these two categories, using the term a challenge “to the fact
or duration of confinement” to define habeas corpus cases, and using the term a

MEMORANDUM DECISION AND ORDER - 14

challenge “to the conditions of their confinement” to define civil rights-type actions.1 Id.
at 498-99.
In McCarty, the Supreme Court noted: “We found it telling that Congress, in
composing the Magistrates Act, chose language “that so clearly parallel[ed] our Preiser
opinion.” Id. at 142 (speaking to the “conditions of confinement” language in both
Preiser and 28 U.S. C. § 636(b)(1)(B)). The Nussle Court relied on this history to support
its conclusion that the “conditions of confinement” language selected by Congress for
§ 1997e(a) was purposely crafted to mirror the notion that, if a case is not one sounding in
habeas corpus, it was intended to fit within the large category of civil rights-type cases.
Based upon its statutory analysis, the Nussle Court held, “in line with the text and
purpose of the PLRA, our precedent in point [including Presier and McCarty], and the
weight of lower court authority, that § 1997e(a)’s exhaustion requirement applies to all
prisoners seeking redress for prison circumstances or occurrences.” 534 U.S. at 520. The
Nussle Court restated its holding at the end of its opinion as: “the PLRA’s exhaustion
requirement applies to all inmate suits about prison life, whether they involve general
1

In Preiser, the Court was careful to note:

This is not to say that habeas corpus may not also be available to challenge such prison
conditions. See Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969);
Wilwording v. Swenson, supra, at 251 of 404 U.S., 92 S.Ct. at 409. When a prisoner is
put under additional and unconstitutional restraints during his lawful custody, it is
arguable that habeas corpus will lie to remove the restraints making the custody illegal.
See Note, Developments in the Law-Habeas Corpus, 83 Harv.L.Rev. 1038, 1084 (1970).
411 U.S. at 499.

MEMORANDUM DECISION AND ORDER - 15

circumstances or particular episodes, and whether they allege excessive force or some
other wrong.” 534 U.S. at 532.
D.

Newer Supreme Court Precedent and Analysis of Particular Issue at
Hand

Turning to Leavitt’s arguments, this Court disagrees that the Porter v. Nussle
holding either limits the exhaustion requirement to conditions of confinement only about
“prison life,” or that it exempts method-of-execution claims. The Nussle Court had no
occasion to consider whether the statute did or did not did not encompass lethal injection
challenges.
However, the statutory analysis of Nussle is applicable here, to the point where the
facts of this case diverge from Nussle’s facts; chiefly, that Congress created a broad
statute encompassing all “suits by prisoner,” and that “conditions of confinement” suits,
as borrowed from Preiser, include all types of civil rights-type claims exclusive of suits
seeking relief that can be obtained only in habeas corpus. This interpretation includes
isolated incidents of excessive force by prison employees and lethal injection challenges.
Leavitt has not persuasively argued that the Nussle analysis and the reach of the
exhaustion provision do not encompass lethal injection challenges. Both types of
incidents challenge the method in which the prison carries out the punishment
pronounced by the State. In fact, in a general sense, the method in which the prison
carries out the inmate’s punishment is the central, if not the only, focus of “conditions of
confinement” cases brought under the Eighth Amendment’s Cruel and Unusual

MEMORANDUM DECISION AND ORDER - 16

Punishment Clause, be it capital or non-capital punishment.
That, in the context of a particular challenge, the United States Supreme Court in
Nussle characterized “prison conditions” cases as “conditions affecting prison life,” does
not limit the statute’s reach, especially given the fact that the Supreme Court has
emphasized that a method-of-execution case sounds either in habeas or in civil rights (but
not in any third category exempt from the exhaustion requirement), and that Congress
particularly drew up the heightened exhaustion requirement statute in an expansive
method to include all types of civil actions filed by prisoners.
This Court concludes that the prisoner cases with precedential value interpreting
“conditions of confinement” claims, both before and after § 1997e(a) was adopted, agree
that, where claims over conditions of confinement are brought, rather than claims over the
fact or duration of confinement, the appropriate vehicle is a § 1983 claim (or claim under
another appropriate civil statute), and, accordingly, all such claims require administrative
exhaustion.
The following cases support the Court’s conclusion. As noted above, McCarthy
and Presier determined that there are “two broad categories of prisoner petitions that can
be filed in federal court: (1) those challenging the fact or duration of confinement itself;
and (2) those challenging the conditions of confinement.” Nussle, 534 U.S. at 527.
In Nelson v. Campbell, a 2004 United States Supreme Court lethal injection
challenge, the “conditions of confinement” and habeas corpus dichotomy continued. The
Nelson Court decided it “need not reach here the difficult question of how to categorize
MEMORANDUM DECISION AND ORDER - 17

method-of-execution claims generally.” 541 U.S. at 644 (emphasis added). The Court
explained, that, to implicate a matter sounding in habeas corpus, the claim at issue would
“call into question the death penalty itself,” id. at 645, rather than “simply altering its
method of execution” and permitting “the State [to] go forward with the sentence.” Id. at
644. However, the Nelson court characterized the particular prisoner’s claim before it as
“his conditions of confinement claim,” rather than a “challenge to the validity of his death
sentence.” Id. at 647. Nevertheless, the Nelson Court clarified, “because we do not here
resolve the question of how to treat method-of-execution claims generally, our holding is
extremely limited.” Id. at 648.
The Nelson Court concluded its opinion with the observation that “the ability to
bring a § 1983 claim, rather than a habeas application, does not entirely free inmates from
substantive or procedural limitations.” Id. at 649. The Nelson Court then cited as
examples the exhaustion of administrative remedies requirement and the authority of the
court to sua sponte dismiss actions that are frivolous on their face as two procedural
limitations. (Id. at 650.) While dicta, this language reinforces the foundational principle
that lethal injection challenges are classifiable only as one of two types: prisoner civil
conditions of confinement suits or habeas corpus petitions.
In Hill v. McDonough, 547 U.S. 573 (2006), a lethal injection challenge, the
Supreme Court restated these two options available to a prisoner as “[c]hallenges to the
validity of confinement or to particulars affecting its duration,” which must be brought in
habeas corpus, and a “challenge to the circumstance of his confinement,” which may be
MEMORANDUM DECISION AND ORDER - 18

brought under § 1983.” Id. at 579 (emphasis added; compare first statement of holding in
Nussle, 534 U.S. at 520). Again in Hill, the Supreme Court again suggested that it was
only when success in a lethal injection challenge “would prevent the State from
implementing the sentence,” or, in other words, when the challenge was “seeking to
permanently enjoin the use of lethal injection” that the case “may amount to a challenge
to the fact of the sentence itself” that must be brought in habeas corpus. Id. at 579-80.2
There is no suggestion in Hill that lethal injection challenges brought under the Eighth
Amendment are not classifiable as “suits by prisoners,” but should be classified as some
other type of civil action that is not a “suit by [a] prisoner.” In other words, Hill reinforces
the conclusion that the only federal court causes of actions for challenging how one’s
sentence is being carried out by prison officials are (1) that a prisoner file a suit subject to
§ 1997e(a) administrative exhaustion principles, or (2) that he file a habeas corpus action
subject to state court exhaustion principles.
4.

Discussion of Whether Lethal Injection Claims Come within the Prison’s
Policy and Whether Leavitt Used the Policy
Now that the Court has determined that the exhaustion requirement applies to

lethal injection challenges not seeking habeas corpus-type relief, the Court must turn to
the IDOC’s particular policy to determine whether Leavitt should have proceeded through
the prison grievance system with his claims. As the Supreme Court explained in
Woodford v. Ngo, “it is the prison’s requirements, and not the PLRA, that define the

2

Exhaustion of administrative remedies was not an issue before the Hill Court.

MEMORANDUM DECISION AND ORDER - 19

boundaries of proper exhaustion.” Jones, 549 U.S. at 218.
Leavitt has chosen to use the vehicle of a § 1983 action to challenge the execution
procedures created and employed by the IDOC, specifically Standard Operating
Procedure (SOP) 135.02.01.001 (version 3.6) (SOP 135). (Affidavit of Krista Howard,
Exhibit C, Dkt. 10-3.) It is clear that SOP 135 was created in response to the delegation of
authority for carrying out death sentences from the State Legislature to the Idaho
Department of Correction, found in Idaho Code § 19-2716:
The punishment of death shall be inflicted by continuous,
intravenous administration of a lethal quantity of a substance or substances
approved by the director of the Idaho department of correction until death is
pronounced by a coroner or a deputy coroner. The director of the Idaho
department of correction shall determine the procedures to be used in any
execution. This act shall apply to all executions carried out on and after the
effective date of this enactment, irrespective of the date sentence was
imposed.
The IDOC grievance policy, Policy 316, set forth in the IDOC policy manual
provides as follows:
Unless otherwise specified, the offender grievance procedure may be
used to address complaints by offenders regarding all policies, conditions of
confinement, actions by employees and other offenders and incidents
occurring within the jurisdiction of the Idaho Department of Correction that
affect the offender personally.
(Affidavit of Sheryll Byrne, Exhibit A, Dkt 10-4, p. 16.) The SOP implementing the
IDOC grievance policy is found at 316.02.01.001 (version 2.1). (Byrne Aff., Exhibit C,
Dkt. 10-5.) The stated “purpose” is as follows:
The purpose of this standard operating procedure (SOP) is to
increase the safety and security of Idaho Department of Correction (IDOC)
MEMORANDUM DECISION AND ORDER - 20

correctional facilities by providing offenders a process to voice complaints
about policies, division directives, SOPs, field memorandums, conditions of
confinement, employee actions, actions of other offenders, medical, and
other incidents occurring within the jurisdiction of the Department.
An effective grievance process gives offenders the ability to voice
concerns, helps IDOC staff increase adherence to policy and procedure, and
aids in the discovery of unworkable, impractical, or inconsistent practices.
(Id., Dkt. 10-5, p.2.)
SOP 315.02.01.001 also sets forth the problems that cannot be grieved, which
include only the following: disciplinary offense reports, alternative sanctions, length of
sentence, Commission of Pardons and Parole and court decisions, previously-grieved
issues, and “problems beyond the control” of the IDOC. (Id., p. 4-5.)
Based upon Leavitt’s stated causes of action and the foregoing statutory and IDOC
SOP provisions, the Court finds and concludes that the state legislature has delegated
determination of execution procedures to the IDOC, that the execution procedures are set
forth in the IDOC SOP manual available to inmates, that the IDOC grievance policy is
broad enough to cover method-of-execution challenges, and that Leavitt’s claims are of
the nature that fit within the published SOP grievance procedure. No contrary argument
has been made in the record.
The Court notes that the record reflects that when a different plaintiff, James
Hairston, submitted a grievance regarding the lethal injection method (“Please bring the
rules governing executions into compliance with constitutional requirements.”) In 2008,
Grievance Coordinator Kim Reischman originally returned the grievance to him because

MEMORANDUM DECISION AND ORDER - 21

(1) he did not attach a signed Offender Grievance Form, (2) his description of the
problem was not written in the proper section of the form, and (3) the problem is beyond
the IDOC’s control. (Byrne Aff., Exhibit I, Dkt. 10-7, p. 6.) When Hairston resubmitted
the grievance, it was processed, not rejected, and the response was:
As we stated in the response to your grievance & concern form, the
IDOC is currently reviewing its execution protocol to ensure Idaho &
Federal Constitutionality. An S.O.P. will be put in place prior to any
executions. You & your attorney will have access to the S.O.P. when
completed & approved.
(Id., Exhibit J, Dkt 10-7, p. 15.)
Return of the grievance to Hairston for the reason that the problem was beyond the
IDOC’s control appears to have been a mistake of the Grievance Coordinator, because the
prison official properly responded to the Offender Grievance Form with a substantive
response, “The IDOC is reviewing the execution protocol to ensure Idaho and Federal
Constitutionality” (Id., Dkt. 10-7, p. 13), and, after the Grievance was resubmitted by
Hairston, it was answered. (Id., pp. 11-12.) Regardless, nothing in the record shows that
Leavitt himself (the plaintiff at issue) attempted to file an Offender Concern Form or a
Grievance Form to challenge the method of his execution. Neither would it have been
helpful for Leavitt to argue that he relied on the mistake of the Grievance Coordinator in
Hairston’s case to draw conclusions about the grieve-ability of the method of execution,
because Hairston’s Offender Concern Form and his resubmitted Grievance Form, were
accepted and an answer provided on the merits of Hairston’s issue.

MEMORANDUM DECISION AND ORDER - 22

5.

Conclusion
The Court concludes that claims challenging the method of execution are “suits

filed by prisoners” about “prison conditions,” that require exhaustion of prison
administrative remedies prior to filing a complaint in the federal district court. Idaho
statute places the authority for carrying out executions with the IDOC, that the execution
policy is published in the IDOC SOP manual, and the prison grievance policy covers such
claims. Thus, an administrative remedy was available to Leavitt, but Leavitt did nothing
to try to exhaust his administrative remedies. Nothing in the Court’s own review of the
record suggests an adequate excuse or defense under the statute exists for failing to
exhaust administrative remedies. For all of these reasons, Leavitt’s claims are subject to
dismissal without prejudice.
Leavitt cites no precedent, and the Court finds none in its own research, to support
Leavitt’s argument that his “Fourteenth Amendment right to due process and Eighth
Amendment right against cruel and unusual punishment trump any preclusion of a stay of
execution which the PLRA may purport to create.” (Dkt. 26, pp. 13-14.) Even assuming
that the § 1997e(a) exhaustion requirement does not apply to lethal injection challenges,
as Leavitt argues, the Court concludes that he has not carried his burden to show that a
preliminary injunction should issue to permit him additional time to litigate the merits of
his case, the ultimate conclusion of which would not be to vacate his execution, but

MEMORANDUM DECISION AND ORDER - 23

simply to command that it occur in a different manner, as the Court will now explain.3
LEAVITT’S EMERGENCY MOTION FOR
PRELIMINARY INJUNCTION OR STAY OF EXECUTION
1.

Standard of Law
To be entitled to preliminary injunctive relief, the movant must show each of the

following: (1) a likelihood of success on the merits; (2) that irreparable harm is likely, not
just possible, if the injunction is not granted; (3) that the balance of equities tips in its
favor; and (4) that an injunction is in the public interest. Winter v. Natural Resources
Defense Council, 555 U.S. 7 (2008). In applying the Winter test, the United States Court
of Appeals for the Ninth Circuit has instructed that, if a party cannot show a likelihood of
success on the merits, but raises “serious questions going to the merits,” a preliminary
injunction may issue if the balance of equities tips “sharply” in the party’s favor, and the
other two elements (irreparable harm and public interest) are also satisfied. Alliance For
The Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (holding that this
aspect of the Ninth Circuit’s sliding scale test survived Winter).
This combination of tests applies when a condemned state prisoner asks a federal
court for an order staying an impending execution, an equitable remedy. See Lopez v.
Brewer, 2012 WL 1693926, at *2-3 (9th Cir. May 15, 2012); Towery v. Brewer, 672 F.3d
650, 657 (9th Cir. 2012). The United States Supreme Court has cautioned that “the mere

3

The Court need not address the 12(b)(6) portion of Defendants’ claims as to Plaintiff Leavitt,
because such claims will be rendered moot upon his execution; however, the Court will address that
portion of the Motion in the regular course of the other Plaintiffs’ case.
MEMORANDUM DECISION AND ORDER - 24

fact that an inmate states a cognizable §1983 claim does not warrant the entry of a stay as
a matter of right. Nelson v. Campbell, 541 U.S. at 649.
Rather, the Supreme Court explained:
A stay is an equitable remedy, and “[e]quity must take into
consideration the State's strong interest in proceeding with its judgment and
. . . attempt[s] at manipulation.” Ibid. Thus, before granting a stay, 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. Given the State’s significant
interest in enforcing its criminal judgments, see Blodgett, 502 U.S., at 239,
112 S.Ct. 674; McCleskey, 499 U.S., at 491, 111 S.Ct. 1454, there is 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.
Nelson, 541 U.S. at 649-50. In Hill v. McDonough, the Court reiterated that “inmates
seeking time to challenge the manner of their execution must satisfy all of the
requirements for a stay, including showing a significant possibility of success on the
merits.” 547 U.S. at 584.
2.

Leavitt has Failed to Show a Substantial Likelihood of Success on Claim 2
In his second claim for relief,4 Leavitt contends that the 2012 Protocol is

“materially different from those approved in Baze v. Kentucky [sic]” and fails to include
“alternative safeguards” against severe pain. (Dkt. 1, p. 14.) The Court finds that Leavitt
has not shown that he is likely to succeed on the merits of this claim or that there is a
serious question going to the merits for the following reasons: (1) the 2012 Protocol is not

4

In light of IDOC’s May 25, 2012 Notice (Dkt. 18), Leavitt admits the Claim 1 is moot as to

him.
MEMORANDUM DECISION AND ORDER - 25

significantly different from Baze as to training, experience, and procedural safeguards,
notwithstanding the fact that the State will use a one-drug rather than a three-drug method
of execution (which was used in Baze and Rhodes); (2) the 2012 Protocol, supplemented
by the 2012 Zmuda Affidavit, contains greater safeguards than required by the
Constitution, as noted in Baze; and (3) Leavitt admits in his Complaint that “the one-drug
protocol completely eliminates the substantial risk of severe pain that arises in three-drug
executions.”5 (Dkt. 1, p. 30.)
A.

Eighth Amendment Standards

The Eighth Amendment prohibits “punishments that involve the unnecessary and
wanton infliction of pain, or that are inconsistent with evolving standards of decency that
mark the progress of a maturing society.” Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th
Cir. 2004).
For a prisoner to establish an Eighth Amendment violation based on his future
exposure to pain during an execution, he must demonstrate that “the conditions presenting
the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and
give rise to ‘sufficiently imminent dangers.’” Baze v. Rees, 553 U.S. 35, 50 (2008)
(Roberts, C.J., plurality opinion) (emphasis in original and quoting Helling v. McKinney,
509 U.S. 25, 33, 34–35 (1993)). Put another way, “there must be a ‘substantial risk of
serious harm,’ an ‘objectively intolerable risk of harm,’ that prevents prison officials from

5

While, in his Complaint, Leavitt asserts that a one-drug protocol using pentobarbital would be
constitutional, in his briefing supporting his Motion for a Preliminary Injunction, he contests the manner
in which the pentobarbital would be administered, which is addressed herein below.
MEMORANDUM DECISION AND ORDER - 26

pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.”
Baze, 553 U.S. at 50 (quoting Farmer v. Brennan, 511 U.S. 825, 842 & n.9 (1994).6
B.

Baze – the Kentucky Protocol

Baze set out the controlling standard for this claim, and because Leavitt alleges
that the 2012 Idaho Protocol is substantially different from Baze, it is necessary to
examine the procedures at issue there and to compare them with Idaho’s current protocol.
The protocol in Baze called for the sequential administration of three drugs:
sodium thiopental, a fast-acting barbiturate intended to anesthetize the prisoner;
pancuronium bromide, a paralytic agent that stops breathing and muscle movement; and
potassium chloride, which interferes with cardiac rhythm and causes cardiac arrest. Baze,
553 U.S. at 44-45. If sodium thiopental is administered properly, the prisoner will be
unconscious and will not feel significant pain during the execution. Id. at 45, 49. If a
prisoner is not sufficiently anesthetized, however, the pancuronium bromide would render
him unable to move or speak, and he would likely experience an extreme suffocating and
burning sensation during the administration of the final two drugs. Id. at 49. The prisoners
in Baze argued that the protocol did not contain safeguards to ensure that they would be
fully anesthetized when the final two drugs were administered, violating the Eighth
Amendment. Id.

6

In Baze, seven justices agreed that the prisoners had not shown an Eighth Amendment violation
on the facts of the case, though a majority could not agree on a controlling rationale. The Ninth Circuit
has since followed the lead of every other circuit to consider the issue and has held that Chief Justice
Roberts’ opinion for a three-justice plurality sets out the controlling standard. Dickens v. Brewer, 631
F.3d 1139, 1444-46 (9th Cir. 2010).
MEMORANDUM DECISION AND ORDER - 27

The Supreme Court disagreed and held that the prisoners had not shown an Eighth
Amendment violation. 553 U.S. at 61. The plurality opinion authored by Chief Justice
Roberts concluded that the prisoners had not shown a substantial, objectively intolerable
risk that they would suffer serious harm. Id. at 56. In reaching that conclusion, the Court
found that the safeguards that Kentucky had put in place significantly minimized the risk.
Those safeguards included, among other things, that the members of the injection team
have at least one year of professional medical experience as a certified medical assistant,
phlebotomist, EMT, paramedic, or military corpsman; that the execution team participate
in at least 10 practice sessions per year; that the IV team establish both a primary and
backup line and to prepare two sets of lethal injection drugs before the execution; a limit
of one hour to establish intravenous access; and the presence of the warden and deputy
warden in the execution chamber for a visual inspection to determine that the prisoner is
unconscious after injection of the sodium thiopental. Id. at 51-56. Although some risk of
error might remain,“an isolated mishap alone does not give rise to an Eighth Amendment
violation, precisely because such an event, while regrettable, does not suggest cruelty, or
that the procedure at issue give rise to a ‘substantial risk of serious harm.’” 553 U.S. at 50
(quoting Farmer, 511 U.S. at 842).
Chief Justice Roberts concluded the plurality opinion by noting that a stay of
execution would not be warranted in “[a] State with a lethal injection protocol
substantially similar to the protocol we uphold today . . .” Id. at 61. Thus, Baze creates a
“safe harbor” for those lethal injection protocols that are substantially similar to
MEMORANDUM DECISION AND ORDER - 28

Kentucky’s lethal injection protocol. See also Dickens v. Brewer, 631 F.3d 1139, 1146
(9th Cir. 2011) (finding that Arizona’s protocol was in the safe harbor and that minor
deviations from the written protocol did not change that result).
C.

Idaho’s Execution Protocol from October 2011 to the Present

In October 2011, Idaho adopted a protocol that required the sequential
administration of the same three drugs at issue in Baze, and Inmate Paul Rhoades filed a
lawsuit challenging the 2011 Protocol. Rhoades v. Reinke, 2011 WL 5520446 (D. Idaho
2011) (“Rhoades I”). After holding an evidentiary hearing, Magistrate Judge Ronald E.
Bush determined that Rhoades had not shown a substantial risk that he would suffer
serious pain during his impending execution. Judge Bush denied Rhoades’s request for a
preliminary injunction to delay the execution, id. at *22, and the Ninth Circuit affirmed
that decision, Rhoades v. Reinke, 671 F.3d 856 (9th Cir. 2011) (“Rhoades II”).
Judge Bush and the Ninth Circuit made several findings and conclusions in the
course of the Rhoades proceedings that are relevant to resolving Leavitt’s current claim.
Judge Bush first noted that “Rhoades overstates the holding of Baze to the extent
he equates the identified ‘safeguards’ as mandatory requirements that must each be in
place in order for a State’s three-drug lethal injection protocol to pass constitutional
muster.” Rhoades I, at *7. He emphasized that the Baze Court did not impose minimum
procedures that states must incorporate into their execution protocols to comport with the
Eighth Amendment; instead, the Supreme Court found that the procedures in Kentucky’s
protocol were sufficient, but not required, to satisfy the Eighth Amendment. Id. As
MEMORANDUM DECISION AND ORDER - 29

Rhoades did, Leavitt makes the same error by assuming that Baze “constitutionalized”
some minimum set of execution procedures that every state must either follow or risk
having their execution protocols found to be unconstitutional.
Judge Bush further concluded that Idaho’s 2011 Protocol, as written and
supplemented by witness testimony, was substantially similar to the protocol in Baze and
was sheltered in Baze’s “safe harbor.” Rhoades I, at *16. Of particular importance, team
members who were assigned to carry out the execution were all “medical providers” with
at least 15 years of experience and had “venous access currency,” meaning that they were
proficient in insertion of IVs, which they did professionally “on a regular basis.” Id. at *89.
In addition, the 2011 Protocol required a minimum of 10 training sessions a year,
weekly sessions in the month before a scheduled execution, and two full rehearsals on
live volunteers in the 48 hours preceding the execution. Id. at *9-10. The protocol
contained “meaningful redundancy safeguards” that included a primary and backup IV
and three sets of chemicals. Id. at 11-12. It also required “meaningful consciousness
checks,” including a microphone in the execution chamber, an electrocardiograph (EKG),
continual monitoring of the offender’s level of consciousness and EKG readings, and a
consciousness check by the leader of the Medical Team before administration of the final
two drugs. Id. at *12-13.
Judge Bush also found that the 2011 Protocol even went beyond Baze to provide
an added layer of protection against the improper administration of the pain-causing
MEMORANDUM DECISION AND ORDER - 30

substances. The added safeguards included: on-site medical services, continual
monitoring of potential IV problems, a time delay between the administration of the
chemicals, inspection of the condition of the equipment, and a drug chain of custody. Id.
at *14-16.
Even with these checks, safeguards, and redundancies in place, Rhoades argued
that Idaho must choose a one-drug protocol – the injection of a single barbiturate – which
he argued would significantly reduce the risk of serious pain. Rhoades I, at *20.
Following Baze, Judge Bush rejected that claim, concluding that Idaho was free to choose
its method of execution as long as the method did not create a substantial risk of serious
harm. Id. at 20-21.
After carefully reviewing all of the evidence, Judge Bush found no substantial
likelihood of success on the merits of the Eighth Amendment claim. Rhoades I, at *4. On
appeal, the Ninth Circuit affirmed and concluded that the 2011 Protocol “is not only
substantially similar to the Kentucky protocol as described in Baze, but includes more
safeguards than the Kentucky protocol.” 671 F.3d at 861-62. The Ninth Circuit turned
aside Rhoades’s claim that IDOC officials would make errors in implementation that
created a substantial risk that he would suffer pain. Id. at 863. It also agreed with the
Judge Bush’s opinion that Idaho was not required to choose a single drug protocol. Id. at
862-63.
In January of 2012, IDOC modified its execution procedures in certain respects.
(SOP 135; Complaint Exhibit 1, Dkt 1-7, pp. 4-53.) These amendments (1) eliminate the
MEMORANDUM DECISION AND ORDER - 31

distinction between the Medical Team and the Injection Team, which is now consolidated
into one Medical Team, and each member of the Medical Team must have at least three
years of “medical experience,” (2) delegate administrative oversight to an Administrative
Team, (3) do not limit use of a central line catheter to a femoral vein, (4) authorize the
Medical Team leader to use a local anesthetic to numb the IV site, and (5) expand the
method of execution options to include a one-drug protocol, using either sodium
thiopental or pentobarbital, at the discretion of the Director. (Id.; May 30, 2012, Redacted
Affidavit of Jeff Zmuda (“2012 Zmuda Aff.”), Dkt. 22-1, ¶¶ 12-17.) All other material
components from 2011 Protocol remain in place.
As previously noted, the IDOC has notified Leavitt that it would elect to use on an
injection of pentobarbital for his execution and that it will not exercise its discretion to
depart from the 2012 Protocol. (Dkt. 18.) Accordingly, the method of execution that will
apply to Leavitt is a one-drug, pentobarbital lethal injection, to be administered in
accordance with all other requirements in IDOC’s 2012 Standard Operating Procedure
135.
D.

Leavitt has not Shown a Substantial Risk of Serious Harm From the
One-Drug Protocol

Leavitt’s arguments in his Complaint and Motion for Preliminary Injunction about
the risk of harm from implementation of the 2012 Protocol have either already been
answered in Rhoades, are resolved by the supplemental evidentiary record setting out the
events that have occurred since the Rhoades execution, or are now inapposite because of

MEMORANDUM DECISION AND ORDER - 32

the IDOC’s decision to use a single drug during his execution.
Leavitt first alleges that the 2012 Protocol does not require members of the
Medical Team to have experience in their daily professional practice – or any training,
practice, or knowledge – in starting and maintaining IVs. (Dkt. 1, p. 15.) He contends that
this lack of relevant experience increases the risk to him that the critical initial step of
setting an IV will go awry. (Id.) Even under the use of a single injection of pentobarbital
through an IV catheter, according to Leavitt, there is a risk that an improperly set IV
could cause “infiltration” of the chemical into surrounding tissue, resulting in a severe
burning sensation. (Dkt. 28, p. 5; Exhibit 1, p. 5; Dkt. 30, June 3, 2012, Affidavit of
David B. Waisel, M.D.)
The 2012 Protocol requires Medical Team members to have “three (3) years of
medical experience as an EMT, LPN, military corpsman, paramedic, phlebotomist,
physician assistant, physician, RN or other medically trained personnel including those
trained in the United States Military.” (SOP 135, p. 9; Dkt 1-7, p. 12.) This requirement
for three years of experience is superior to 2011 Protocol, which had no requirement that
Medical Team members have any set number of years of experience (only the Injection
Team members were required to have one year of experience). Rhoades I, at *8. Even in
that situation, however, Rhoades’s similar lack-of-training-and-experience claim failed
because Jeff Zmuda, the IDOC official in charge of implementing execution procedures,
testified that the least experienced member of the Medical Team for Rhoades’s execution
actually had fifteen years of relevant medical experience, and all members had current
MEMORANDUM DECISION AND ORDER - 33

professional practice and experience in the insertion of IVs on a regular basis. See
Rhoades II, 671 F.3d at 860, n.1, n.2.
Zmuda has now submitted an updated affidavit, in which he asserts that “the
Medical Team members selected for the June 12, 2012, execution are the exact same
Medical Team and Injection Team members that the IDOC used in the execution in
November 2011,” and that they “will serve in the same exact roles as they performed in
the November 2011 execution.” (2012 Zmuda Aff., ¶ 21.) The Medical Team Leader is a
registered nurse, with the most clinical and administrative experience of any Medical
Team member, and has worked, or currently works, in an emergency room and an
intensive care unit. (Id. at ¶ 26.). All members of the “Medical Team are certified in CPR,
have venous access currency, which means they [have] current professional practice in
the insertion of IVs on a regular basis.” (Id. at ¶ 30.) Contrary to Leavitt’s contention that
there is no showing that the Medical Team members are experienced in setting and
delivering drugs through an IV, Zmuda testifies that “all team members have experience
in Pharmco Dynamic Currency, which means the team members understand medical
orders, can read and understand medical labels, draw medications and deliver medications
through either an injection or IV.” (Id.) Leavitt has come forward with no evidence, only
speculation, that would call any of these claims into question.
Consequently, the 2012 Protocol, supplemented with Zmuda’s Affidavit, contains
the necessary assurances that the Medical Team members for Leavitt’s execution will
have regular experience establishing IV catheters. Because Leavitt’s challenge to the
MEMORANDUM DECISION AND ORDER - 34

experience of the Medical Team falls short, his claim that “redundant measures do not
constitute safeguards against several pain because they are performed by the same
inadequately credentialed and trained personnel” necessarily fails as well.7 (Dkt. 1, p. 22.)
As Rhoades did, Leavitt next contends that on-site training is inadequate. (Dkt. 1,
p. 20.) The 2012 Protocol – like the 2011 Protocol – requires ten practice sessions a year,
weekly practice sessions once a death warrant is issued, and two rehearsals in the 48
hours before the execution. (SOP 135, p. 10; Dkt. 1-7, p. 13.) Training and rehearsals
must include the placing of IV catheters and establishing an IV drip in a minimum of two
live volunteers before each execution. (Id.) In addition, all members of the Medical Team
must participate in a minimum of four training sessions before participating in an
execution. (Id.) Between 30 and 21 days before the execution, the Administrative Team
must “ensure that the Escort Team, Medical Team, and command staff are conducting
training in preparation for the execution. (SOP 135, p. 23; Dkt. 1-7, p. 26.)
In his updated Affidavit, Zmuda indicates that same Medical Team that is assigned
to the Leavitt execution was “involved in approximately 10 training and rehearsal
sessions prior to the execution in November 2011 and the actual execution in November

7

Leavitt also argues that the 2012 Protocol allows for a central line catheter in a femoral vein if
peripheral access cannot be achieved, which could be accomplished through an invasive “cut-down”
surgical procedure that none of the Medical Team members are qualified to conduct. Although a
physician will be on-site to render emergency aid, if needed, he will not participate in the execution. In
any event, Zmuda asserts that the 2012 Protocol “does not provide for a ‘cut-down’ procedure requiring
an incision” and that the Medical Team member who would insert the central line has training to complete
that procedure. (2012 Zmuda Aff., ¶ 36.) The Court will hold IDOC, as binding, to its interpretation of its
own Protocol that a cut-down procedure is not authorized by the Protocol and that it will not occur on
Leavitt.
MEMORANDUM DECISION AND ORDER - 35

2011.” (2012 Zmuda Aff., ¶ 32.) He also states that the “Medical Team and command
staff have engaged in annual trainings since February 2012 ” and, after the death warrant
was served on Leavitt, “training has been conducted weekly” using the one-drug protocol.
(Id. at ¶ 31.) By the date of his Affidavit, Zmuda notes that “there have been eight
training sessions involving live sticks.” (Id. at 33.) The training and practice requirements
in the 2012 Protocol, together with the evidence from Zmuda as to the extent of the
training that has and will continue to occur before Leavitt’s execution, are sufficient to
guard against a substantial risk of error.
Leavitt challenges the consciousness checks as not sufficiently meaningful. (Dkt.
1, p. 22.) This argument is now moot in light of the fact that IDOC has chosen to use an
overdose of a single barbiturate. The 2012 Protocol does not call for a consciousness
check under this method because the final two pain-causing chemicals will not be
administered. (SOP 135, p. 10; Dkt. 1-7, p. 48.)
In Rhoades, the plaintiff claimed that even if the written protocol contained
sufficient safeguards to comply with Baze and the Eighth Amendment on its face, there
still existed a substantial risk that IDOC would make errors in the implementation of the
protocol that would expose him to serious pain. Rhoades I, at *16. This type of “asapplied” claim is available, but a prisoner making it “faces an uphill battle” when a
written protocol is facially constitutional. Dickens v. Brewer, 631 F.3d 1139, 1146 (9th
Cir. 2011). To make such a claim, the possibility of error must be substantial. The Ninth
Circuit has previously noted that an assessment of the likelihood of harm should not
MEMORANDUM DECISION AND ORDER - 36

include any pain and suffering that is attributable to the remote possibility of human error,
accident, or negligence. See Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994) (“The
risk of accident cannot and need not be eliminated from the execution process in order to
survive constitutional review.”).
In finding no merit to Rhoades’s argument, Judge Bush determined that anecdotal
information about mistakes or mishaps in other jurisdictions using a three-drug protocol
under unknown conditions was not particularly probative of how Idaho officials would
implement their own protocol. Rhoades I, at *17. Leavitt reasserts these same arguments,
but Judge Bush’s observation, backed up by the Ninth Circuit, see Rhoades II, F.3d at
862, is still true today.
While Judge Bush expressed his concern that IDOC had delayed enacting
execution procedures and “was playing catch-up” in the Fall of 2011, he was persuaded
that it had “since made up for much of the lost time” by assembling a proficient team and
engaging in numerous practice sessions. Id. at *19. In reaching his conclusion, Judge
Bush was convinced that Zmuda was “a credible witness who has been acting in good
faith to minimize the potential risk of error,” and that Zmuda “appears to the Court to be
carrying out his responsibilities with a full understanding of the gravity of his duties.” Id.
at *17.
Leavitt has come forward with no evidence that gives this Court pause or a reason
to second-guess Judge Bush’s assessment. Zmuda asserts that IDOC did not deviate
materially from the protocol in Rhoades’s execution, and there is nothing before the Court
MEMORANDUM DECISION AND ORDER - 37

to suggest otherwise. (2012 Zmuda Aff., ¶ 10.) The Medical Team now has the
experience of one execution that proceeded without a reported serious incident, and it has
been training since at least February 2012 for Leavitt’s execution. Even though the
Medical Team now will be using the one-drug method rather than the three-drug method,
Leavitt provides no facts showing that implementation of the protocol will be
substantially different from, or carry substantially more risk than, the manner in which the
Rhoades execution was carried out.8 Leavitt has the burden to show that he is entitled to
preliminary injunctive relief, and he has not come forward with any credible or persuasive
evidence that IDOC has engaged in practices that inject serious uncertainty and risk into
the process.
While Leavitt complains of the IDOC’s habit of providing an affidavit close to the
execution date that sets forth additional details about the particular upcoming execution to
show how the published protocol will be implemented (as in the Rhoades execution),
rather than including all of that information in the protocol itself, the Court concludes that
Leavitt’s criticism does not aid his endeavor to show that there is a substantial risk of
severe pain inherent in the manner in which his execution is planned. In affirming Judge

8

Among Leavitt’s allegations supporting his assertion that his execution should be carried out by
a one-drug protocol – which the State has now agreed to use – include the following: (1) “There is
scientific consensus that rapid IV delivery of a large dose of thiopental or pentobarbital will cause death
in a short amount of time”; (2) “A one-drug protocol using pentobarbital (or thiopental) is a known
alternative that has been used in 14 executions since 2008 in Ohio and Washington”; (3) “Of those 14
one-drug executions, 11 used thiopental and 3 used pentobarbital”; (4) “A one-drug protocol completely
eliminates the substantial risk of severe pain that arises in three-drug executions”; (5) “There are no
reports of one-drug protocol executions apparently creating severe pain for the offender.” (Id., Dkt. 1, p.
30.)

MEMORANDUM DECISION AND ORDER - 38

Bush’s denial of a preliminary injunction in Rhoades, the Ninth Circuit observed that
Zmuda’s “testimony is relevant to show the actual protocol that will be implemented,
which in turn bears on the likelihood that Rhodes will suffer severe pain.” Rhoades II,
671 F.3d at 860.
Leavitt tries to apply the criticisms levied by the Ninth Circuit about the manner in
which the Arizona Department of Corrections (ADC) frequently deviates from its
published execution protocol at the last minute, see Lopez v. Brewer, 2012 WL 1693926
(9th Cir. May 15, 2012) to the IDOC’s provision of implementation details by affidavit.
However, the analogy is not a good fit, because, here, the IDOC is giving some advance
notice of how it will be implementing its protocol, so that inmates under a death warrant
can challenge the planned implementation in court, rather than the ADC deviating from
its protocol on the basis of its discretion to do so. Here, in contrast, IDOC has assured
Leavitt and this Court that it will not exercise that discretion as to his execution, and the
IDOC is bound by that representation. See Towery v. Brewer, 672 F.3d 650, 658 (9th Cir.
2012). It is important to note, that, even though the ADC’s last-minute changes were
frowned upon, a majority of a panel of the Ninth Circuit nevertheless affirmed the denial
of preliminary injunctive relief in Lopez, because Lopez did not demonstrate that the
ADC Director “exercised his discretion in a manner that increases a prisoner’s risk of
being subject to an objectively intolerable risk of pain . . . or in a constitutionally
prohibited manner.” Lopez, 2012 WL 1693926 at *6.
The Court therefore concludes that Leavitt has failed to carry his burden to show a
MEMORANDUM DECISION AND ORDER - 39

serious question going to the merits, or a likelihood of success on the merits, as to his
claim that the 2012 Protocol lacks constitutionally adequate safeguards. The Protocol is
sufficient on its face to ensure meaningful protection from a serious risk of harm, the
Medical Team that has been assigned is capable and experienced, and the uncontroverted
evidence before the Court shows that the IDOC has followed the protocol and does not
intend to depart from it in a material way. IDOC’s switch to a single barbiturate also
addresses many of the concerns that Rhoades expressed in the previous litigation and
should allay the same concerns that Leavitt expresses here. Even if something were to go
wrong during the execution process, the risk of pain to him is minimized because the
most severe pain-causing agents will not be used.
Accordingly, Leavitt has not demonstrated that, if he were given more time to
litigate Claim 2, he would be able to establish that the implementation of the 2012
Protocol, which the State is bound to implement according to its May 25, 2012 Notice
(Dkt. 18), exposes him to a substantial risk of serious harm.
3.

Leavitt has Failed to Show a Substantial Likelihood of Success on Claim 3
Leavitt’s third claim is that there is a substantial risk of serious harm if the IDOC

uses adulterated or illegally-obtained drugs in the execution. (Dkt.1, p. 26). He argues that
there is a “reasonable inference,” drawn from email correspondence between Defendant
Blades and a manufacturer of pentobarbital in India, that there was no source for the
manufactured drug in the United States. (Dkt. 19, p. 5). Leavitt also asserts there is a
reasonable inference that pentobarbital manufactured in India falls below the quality
MEMORANDUM DECISION AND ORDER - 40

control and purity standards of a drug that is manufactured in the United States. (Id.)
Leavitt’s counsel requested that IDOC counsel provide Leavitt with information relating
to whether the pentobarbital to be used in any June execution was manufactured by the
sole U.S. manufacturer, whether it was obtained directly from a U.S. distributor before
July 1, 2011, and whether the drug will expire before the date of the execution. (Id., at 6).
IDOC counsel refused to provide Leavitt with the information, and, here, questions
whether Leavitt’s counsel should have revealed to the court discussions between counsel
in pursuit of settlement of these issues, calling into question a violation of Rule of
Evidence 408. (Dkt. 20, p. 6, n.1.)
Nevertheless, Leavitt relies on the email correspondence, the possible lower
quality and purity standards of drugs manufactured outside the country, the potential that
an expired drug may be used, and IDOC counsel’s failure to adequately address Leavitt’s
inquiries as support for Claim 3. Leavitt argues that these bases are to enough to show
that it is plausible that IDOC may use an expired, poor-quality drug from a foreign source
in the execution, creating a substantial risk that Leavitt may suffer severe pain while
being executed. (Dkt.19, p. 6).
However, in this preliminary injunction context in which he bears the burden of
proof, Leavitt has not brought forward sufficient facts to show that, even if an expired,
foreign-manufactured dosage of pentobarbital is used, he is at substantial risk of suffering
severe pain during execution. Likewise, he has produced no facts showing that a foreignmanufactured dosage of pentobarbital would be of such poor quality that it would amount
MEMORANDUM DECISION AND ORDER - 41

to a substantial risk of suffering severe pain during execution.
Other similar claims have failed when presented in lethal injection challenges. In
Cook v. Brewer, the Ninth Circuit determined that a complaint cannot merely speculate
and make general claims about every drug produced outside of the country. 637 F.3d
1002, 1006 (9th Cir. 2011). In his appeal from the court’s granting of Defendant’s motion
to dismiss, Cook argued that using a foreign manufactured drug that was not approved by
the FDA created a “substantial and unnecessary risk of unconstitutional pain.” Id. at 1003.
His support for this claim included allegations that the drug was obtained in violation of
federal law, that a foreign-manufactured drug may not be effective and could be
contaminated or compromised, and that drugs from foreign countries do not have the
same quality and safety assurance as those regulated by the FDA. Id.
In its holding, the Ninth Circuit stated that “plaintiffs must make specific
allegations about the manufacturing process, formulation, potency, quality, or labeling of
the drug at issue” in the particular case. Id. Because Cook’s claims were merely
speculations about the possibilities of unsafe foreign-manufactured drugs, and not factual
claims about the specific drug being used for his own execution, the court found that he
did not have enough to survive the motion to dismiss. Id. at 1008. Because these general
claims fell short of the motion to dismiss standard, speculation certainly must fall short of
a higher preliminary injunction standard.
Likewise, in Brewer v. Landrigan, the Supreme Court held that a court cannot be
left to speculate whether the drug will cause severe pain and suffering. 131 S.Ct. 445
MEMORANDUM DECISION AND ORDER - 42

(2010). Before reaching the Supreme Court, Brewer’s Motion for a Temporary
Restraining Order was granted by the United States District Court for the District of
Arizona. Landrigan v. Brewer, 2010 WL 4269559, No. CV-10-02246-PHX-ROS (D.
Ariz. 2010), vacated, 131 S.Ct. 445. The district court found that the plaintiff was likely
to succeed on the merits, partly because the defendants failed to provide important
information about the origins and efficacy of the drug. Id. at *9-10. Without the
information, the court was “unable to determine whether the drug was produced by a
foreign company that follows standard operating procedures for the drug’s manufacture
or that has no history of contamination in manufacturing the product.” Id. Consequently,
the court accepted the plaintiff’s showing that “such drugs are likely to contain harmful
contaminants,” and therefore found the plaintiff was likely to succeed in showing there
was a substantial risk in administering the drug. Id. The Ninth Circuit affirmed in
Landrigan v. Brewer, 625 F.3d 1144 (9th Cir. 2010).
However, the United States Supreme Court reversed, vacating the district court’s
decision, because it found that “speculation cannot substitute for evidence that the drug is
sure or very likely to cause serious illness and needless suffering.” Brewer, 131 S.Ct. at
445 (internal quotations marks omitted). Absent a showing that a drug is illegally
obtained or proof to support such a claim, the claim will not be likely to succeed on the
merits. Id. The Court emphasized that district courts cannot be left to make
determinations based on speculation and conclusory allegations that are unsupported by
facts specific to the drug being used in the execution at issue in each case.
MEMORANDUM DECISION AND ORDER - 43

Here, the Court has before it mere speculation, preventing a stay of the execution.
In his complaint, Leavitt contends that a reasonable inference can be drawn that there is
no source for the manufactured sodium thiopental in the United States, and, in his
Opposition to Motion to Dismiss, he makes the same claim about pentobarbital. Leavitt
makes no specific claims as to each drug; he merely states the same general claims as to
both. Like the plaintiff in Cook, Leavitt asserts that these foreign-manufactured drugs fall
below the quality control and purity standards of those manufactured in the United States.
Cook’s allegations that the foreign-manufactured drug for his execution may not be
effective because foreign countries do not have the same quality and safety assurances as
those manufactured in the U.S. failed to meet the plausibility standard to survive the
defendant’s motion to dismiss. Leavitt makes the same general claims with no additional
support to show the pentobarbital to be used for his execution is ineffective,
contaminated, or compromised, thus posing a risk of substantial harm. Because no further
allegations were made as to the specific drug, Leavitt’s allegations parallel those of Cook,
and therefore fall short of a plausibility.
Leavitt makes further claims that he did not have the needed information to make
specific claims because IDOC counsel failed to provide such. Like the defendants in
Landrigan who failed to provide information about the origins and efficacy of the drug,
defense counsel in this case declined to give information relating to the origin of the drug,
which manufacturer it was obtained from, and the expiration date of the drug to be used
for the execution. While the district court in Landrigan considered this a reason to find
MEMORANDUM DECISION AND ORDER - 44

the plaintiff was likely to succeed on the merits, the Supreme Court held that, regardless
of the withheld information, the court could not speculate about whether the drug would
cause pain and suffering. Just as the Supreme Court in Landrigan required specific
evidence to support the plaintiff's claims, this Court must also do so.
While Leavitt does not have the specific information he desires at this early stage
of the litigation, he did not provide scientific research, medical studies, expert opinions,
or other factual information to support his claims. Thus, the Court is left to speculate,
based on general claims and conclusory allegations. Another element of his claim that is
missing is any fact showing a causal link between a foreign-manufactured or expired drug
and any serious harm that might result in the course of the execution. Thus, Leavitt
cannot show that the drug is sure or very likely to cause serious illness and needless
suffering or that he is likely to succeed on the merits of this claim.
4.

Leavitt has Failed to Show a Substantial Likelihood of Success on Claim 7
Leavitt’s seventh claim is that pentobarbital is classified as a Schedule II

controlled substance under 21 Code of Federal Regulations § 1308.12(e)(3), and that
Defendants have or will violate the Controlled Substances Act (CSA), 21 U.S.C. § 801, et
seq., and the Food Drug and Cosmetics Act (FDCA), 21 U.S.C. § 301, et seq., because no
appropriately-licensed medical practitioner will obtain or administer the pentobarbital
used to execute Leavitt. (Dkt. 1, pp. 32-37.) Leavitt seeks “equitable relief in the form of
a declaratory judgment clarifying that the safeguards contained in the CSA and FDCA
apply to his execution by lethal injection,” as well as a “declaratory judgment that if
MEMORANDUM DECISION AND ORDER - 45

Defendants act in compliance with the 2012 Protocol and Idaho Code § 19-2716, they
will violate the CSA and FDCA because the means the protocol prescribes for Defendants
to obtain and administer the lethal injection chemicals violate those statutes.” (Dkt. 1, p.
34.)
While Claim 7 raises interesting issues addressable in the regular course of a
litigation, the focus today is whether Leavitt is entitled to a stay of his execution under the
planned one-drug method, involving pentobarbital (Dkt. 18, 24), so that he can more fully
litigate these claims at a later date. The gateway to addressing these interesting issues at a
later date is a showing a likelihood of success on the merits. The Court has identified
three distinct issues preventing a finding that Leavitt has a likelihood of success on the
merits of his claim: (1) lack of standing to bring such a claim; (2) failure to show that
declaratory relief is available; and (3) failure to show that a declaratory relief action
would result in actual relief rather than result in an advisory opinion.
A.

Standing

Leavitt has not shown that he has standing to bring a claim under the CSA and
FDCA. The CSA is a comprehensive regulatory framework governing the manufacture,
importation, distribution and use of controlled substances. 21 U.S.C. § 812. It includes
penalties for violations of its provisions and authorizes the United States Attorney
General to initiate a civil action “for appropriate declaratory or injunctive relief.” 21
U.S.C. § 842(f)(1). Similarly, the FDCA provides the Food and Drug Administration with
the authority to ensure the safety of products within the scope of the act, including drug
MEMORANDUM DECISION AND ORDER - 46

products. 21 U.S.C. § 355(a). The FDCA provides that all “proceedings for the
enforcement or to restrain violations of this chapter shall be by and in the name of the
United States”; in addition, a State may bring a proceeding in its own name. 21 U.S.C.
§ 337(a),(b).
Courts that have addressed similar claims brought by death-sentenced prisoners
seeking declaratory relief under the CSA and FDCA appear to have uniformly concluded
that these Acts do not provide for a private right of enforcement by the prisoner. See, e.g.,
Jones v. Hobbs, 2010 WL 2985502, at *4-5 (E.D. Ark. 2010); Bowling v. Haas, 2010 WL
3825467, at *4-5 (E.D. Ky. 2010); see also Durr v. Strickland, 2010 WL 1610592, at *3
(S.D. Ohio 2010) (finding no private right of action and no cognizable injury to the
plaintiffs by alleged violations of the CSA and FDCA); Ringo v. Lombardi, 2011 WL
3584476 (W.D. Mo. 2011) (finding an absence of an injury in fact to confer standing to
go forward with challenges under the CSA and FDCA).
Illustrative of these holdings is Jones v. Hobbs, 745 F.Supp.2d 886 (E.D. Ark.
2010), in which the District Court for the Eastern District of Arkansas rejected a
prisoner’s claims identical to those brought here. After analyzing several cases, it
concluded:
[t]o entertain, under the auspices of the Declaratory Judgment Act,
a cause of action brought by private parties seeking a declaration
that the FDCA or the CSA has been violated would, in effect, evade
the intent of Congress not to create private rights of action under
those statutes and would circumvent the discretion entrusted to the
executive branch in deciding how and when to enforce those
statutes.
MEMORANDUM DECISION AND ORDER - 47

Jones, 745 F.Supp.2d at 893 (citations omitted). This Court agrees with the Jones Court
that the executive branch has the exclusive authority to enforce violations of the CSA or
the FDCA and that death-sentenced prisoners such as Leavitt have no private cause of
action to enforce these Acts.
B.

Availability of Declaratory Relief

Leavitt has not persuaded the Court that, in the absence of a private cause of action
in the CSA and FDCA, he can bring a cause of action for declaratory relief based on these
statutes. The majority of courts have rejected the argument that, notwithstanding the
failure of Congress to create a private remedy via these statutes, a plaintiff can still bring
a claim for declaratory relief regarding the statutes. In Jones v. Hobbs, the district court
reasoned:
[The plaintiffs] seek to bypass the congressionally mandated enforcement
schemes for the FDCA and the CSA; in effect, they seek private
enforcement of those statutes by means of a declaratory judgment. Congress
committed complete discretion to the executive branch to decide when and
how to enforce those statutes and authorized no private right of action for
the enforcement of those statutes. The Declaratory Judgment Act does not
authorize a bypass of that enforcement scheme.
745 F.Supp. 2d at 893-94.
Likewise, in Durr v. Strickland, the district court found unpersuasive the argument
that a complaint for a declaratory relief is not the same as a private action “to enforce” the
CSA or FDCA to be a “semantic slight of hand.” 2010 WL 1610592, at *3. The United
States Court of Appeals for the Sixth Circuit agreed that there was no private cause of

MEMORANDUM DECISION AND ORDER - 48

action under either statute and that declaratory relief was not a proper mechanism for
seeking injunctive relief from execution. Durr v. Strickland, 602 F.3d 788, 789 (6th Cir.
2010).
The courts are not free to fashion judicial remedies arising from statutes where
Congress has declined to include such remedies in the statutes. Congress is well-aware of
how to draft statutes that include a private cause of action; it chose not to do so in the
CSA and FDCA. Thus, the Court rejects the reasoning of Ringo v. Lombardi, 706 F.Supp.
2d 952 (W.D. Mo. 2010), where the court found that plaintiffs facing death by lethal
injection may bring an action pursuant to the Declaratory Judgment Act seeking a
declaration that the state’s lethal injection protocol violates the FDCA and the CSA even
though those statutes create no private cause of action.
C.

Nature of Declaratory Relief

Plaintiff has failed to show that declaratory relief would be appropriate under the
circumstances of his case. “A declaratory judgment, like other forms of equitable relief,
should be granted only as a matter of judicial discretion, exercised in the public interest.”
Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948). “Declaratory
relief should be denied when it will neither serve a useful purpose in clarifying and
settling the legal relations in issue nor terminate the proceedings and afford relief from
the uncertainty and controversy faced by the parties.” United States v. Washington, 759
F.2d 1353, 1357 (9th Cir. 1985).
In Brown v. Vail, 237 P.3d 263 (Wash. 2010), the Washington Supreme Court
MEMORANDUM DECISION AND ORDER - 49

declined to issue a declaratory judgment based on the alleged violations of federal statutes
regulating controlled substances, finding that, because a declaratory judgment has no
direct, coercive effect,” the plaintiffs did not establish that any declaratory judgment
“would produce a final and conclusive determination,” calling into question whether a
justiciable controversy existed. Id. at 333-34. Rather, because “the decision to enforce
provisions of a controlled substances act is left to the discretion of the agencies
overseeing the statute, the court observed: “Such a judgment would look very much like
an advisory opinion,”which should issue only in rare circumstances. Id. at 334.9
Accordingly, because Leavitt has not shown that he has a likelihood of prevailing
on the merits of Claim 7, it is not appropriate to stay the execution under the current
protocol in favor of a prolonged litigation to determine whether a declaratory judgment
should issue that would not be binding on the state prison officials who carry out the
executions.
5.

Leavitt Has Not Shown Irreparable Harm
Because Plaintiff’s sentence of death is not at issue, to show that irreparable harm

9

See also Heckler v. Chaney, 470 U.S. 821 (1985), where the FDA Commissioner stated that the
FDA would decline to pursue a statutory cause of action against the states for use of drugs in lethal
injection executions:
Generally, enforcement proceedings in this area are initiated only when there is a
serious danger to the public health or a blatant scheme to defraud. We cannot conclude
that those dangers are present under State lethal injection law[s], which are duly
authorized statutory enactments in furtherance of proper State functions. . . .”
Id. at 824-25.

MEMORANDUM DECISION AND ORDER - 50

would occur if a preliminary injunction is not granted, Plaintiff must demonstrate that
there is a substantial risk that he will suffer serious pain during his execution (Claims 2
and 3), or that he has meritorious claims under the CSA and the FDCA that would result
in requiring the IDOC to use a different method of execution than the one-drug protocol,
using the particular pentobarbital supply the IDOC has on hand and plans to use in the
June 12, 2012 execution (Claim 7). Therefore, a stay of execution is not warranted.
6.

Leavitt Has Not Shown the Balance of the Equities Tips in His Favor or There
is a Public Interest in Granting the Preliminary Injunction
Finally, while Plaintiff undoubtedly has a strong interest in being executed in a

constitutional manner, see Beaty v. Brewer, 649 F.3d 1071, 1072 (9th Cir. 2011), the
Court does not find a significant risk that his upcoming execution will violate the
Constitution or other federal law. On the other side of the balance, Idaho has a compelling
interest in enforcing its lawful judgment for the murder of Danielle Elg, which has now
been pending for over two decades. The United States Supreme Court has sent a clear,
concise message that, absent actual evidence showing something more than speculative
harm, the law does not permit a federal district court to enjoin a scheduled state
execution. See Brewer v. Landrigan, 131 S.Ct. 445 (2010).
The Court concludes that the equities favor Defendants in this matter and that a
stay would not be in the public interest.
7.

An Evidentiary Hearing is Unnecessary
The purpose of a preliminary injunction is to preserve the status quo if the balance

MEMORANDUM DECISION AND ORDER - 51

of equities so heavily favors the moving party that justice requires the court to intervene
to secure the positions until the merits of the action are ultimately determined. University
of Texas v. Camenisch, 451 U.S. 390, 395 (1981). A court “is not obligated to hold a
hearing [on a motion for a preliminary injunction] when the movant has not presented a
colorable factual basis to support the claim on the merits or the contention of irreparable
harm.” Bradley v. Pittsburgh Board of Education, 910 F.2d 1172, 1176 (3rd Cir. 1990).
A colorable factual basis is found where the movant’s “allegations, if proved, would
establish the right to relief.” Silva v. Woodford, 279 F.3d 825, 833 (9th Cir. 2002).
In Lopez v. Brewer, the district court considered all the evidence that was
presented in the record and denied a request for preliminary injunction without holding an
evidentiary hearing. No. 12-16084, 2012WL 1693926, at *1 (9th Cir. May 15, 2012). The
Ninth Circuit affirmed the district court’s decision to not hold an evidentiary hearing
because “an evidentiary hearing was not required or warranted,” and any new evidence
obtained by the plaintiff would not alter its decision in affirming the denial of Lopez’s
motion for a preliminary injunction. Id. at *8. Lopez did not present a substantial
likelihood of success on the merits of his claim, and therefore was not entitled to
injunctive relief, or an evidentiary hearing. Id. at *2.
Without a showing of a substantial likelihood of success on the merits, the motion
cannot proceed and a hearing is not required. The district court in Cook v. Brewer
proceeded without a hearing because the plaintiff asserted “only in a conclusory fashion
that there is a significant risk [foreign-manufactured] drugs were not produced in an
MEMORANDUM DECISION AND ORDER - 52

environment requiring them to be effective,” and this was “insufficient to unlock the
doors of discovery.” 2011 WL 251470, at *3 (D. Ariz. Jan. 26, 2011) aff’d, 637 F.3d 1002
(9th Cir. 2011). The Ninth Circuit agreed with the district court's decision, stating that
Cook's allegations offer no factual support for his assertions contained therein. Cook v.
Brewer, 637 F.3d 1002, 1007 n.3 (9th Cir. 2011). Because there was no factual basis to
support the claim, there was no obligation to hold a hearing.
Here, Leavitt offers no more than Lopez or Cook offered. Like Cook, Leavitt
offers only assertions in a conclusory fashion, which is insufficient to lead to discovery.
As in Lopez, a hearing would be required here only if the plaintiff had alleged specific
factual support that would show there was a substantial risk of serious pain in his
execution. Because Leavitt offers no facts that, if proven, would show an entitlement to
relief, an evidentiary hearing is not required.
8.

Conclusion
Plaintiff has not demonstrated that he is entitled to preliminary injunctive relief,

and his Motion will be denied.

MEMORANDUM DECISION AND ORDER - 53

ORDER
IT IS ORDERED:
1.

Defendants’ Motion to Dismiss (Dkt. 10), based on failure to exhaust
administrative remedies as to Plaintiff Richard Leavitt’s claims, is
GRANTED as to Leavitt. Plaintiff Richard Leavitt’s claims are dismissed
without prejudice.

2.

Plaintiff Richard Leavitt’s Motion for a Preliminary Injunction (Dkt. 16),
seeking a stay of execution, is DENIED.

3.

Plaintiff’s Amended Motion to Exceed the Page Limits (Dkt. 17) is
GRANTED.

4.

Defendants’ Motion to Seal Affidavit of Jeff Zmuda in Support of
Defendants’ Response and Objection to Plaintiff Leavitt’s Emergency
Motion for Preliminary Injunction or Stay of Execution (Dkt. 23) is
GRANTED. Docket No. 24 shall remain sealed. Plaintiff and his counsel
shall be allowed to receive the Affidavit of Jeff Zmuda (Dkt. 24), but shall
keep the Affidavit confidential and not disclose it or its contents to any third
parties.

5.

Defendants’ Motion to Exceed the Page Limits (Dkt. 23) is GRANTED.

6.

Plaintiffs’ Motion to Temporarily Seal Plaintiff’s Reply (Dkt. 27) is
GRANTED. Docket No. 28 shall remain sealed.

MEMORANDUM DECISION AND ORDER - 54

7.

Defendants’ Motion to Strike Plaintiff Leavitt’s Expert Affidavit (Dkt. 32)
is DENIED.
DATED: June 4, 2012

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 55