Hoffman v. Jindal et al
Filing
59
ORDER denying 40 Motion to Dismiss ; denying 42 Motion to Dismiss. Accordingly, the Court finds that Hoffman and Sepulvados claims should be permitted to proceed as to all the named Defendants with the exception of Governor Jindal and DPSC. Additionally, Hoffman and Sepulvado are not entitled to seek monetary damages absent a showing of prior physical injury. Signed by Judge James J. Brady on 4/16/2013. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JESSIE HOFFMAN, ET AL.
CIVIL ACTION
VERSUS
NO. 12-796-JJB
BOBBY JINDAL, ET AL.
RULING ON DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on two motions to dismiss filed by Defendants Governor
Bobby Jindal, Secretary James D. LeBlanc, Warden Burl Cain, Assistant Warden Angela
Norwood and the State of Louisiana through the Department of Public Safety and Corrections
(“DPSC”) (collectively “Defendants”). (Docs. 40 and 421). Plaintiff Jessie Hoffman (“Hoffman”)
has filed an opposition (Doc. 46), to which Defendants have filed a reply. (Doc. 53). Hoffman
has filed a sur-reply. (Doc. 55). Intervenor Christopher Sepulvado (“Sepulvado”) has filed an
opposition (Doc. 50), to which Defendants have filed a reply. (Doc. 58). Oral argument is not
necessary. For the reasons herein, the Court DENIES Defendants’ Motions to Dismiss. (Docs. 40
and 42).
I.
Hoffman and Sepulvado are both incarcerated under a sentence of death at the Louisiana
State Penitentiary, in Angola, Louisiana (“Angola”). On December 20, 2012, Hoffman filed this
action against Defendants pursuant to 42 U.S.C. § 1983, challenging the undisclosed method of
execution as cruel and unusual punishment. (Doc. 1). On January 23, 2013, Sepulvado filed a
motion to intervene (Doc. 11) and on January 31, 2013, Sepulvado requested a preliminary
injunction to stay his execution, which was scheduled for February 13, 2013. (Doc. 14). On
1
Doc. 40 is a motion to dismiss as to Hoffman and Doc. 42 is a motion to dismiss as to Sepulvado.
1
February 6, 2013, this Court granted his motion to intervene (Doc. 26), and on February 7, 2013,
this Court granted Sepulvado’s motion for a preliminary injunction and stayed his execution.
(Docs. 27 & 28). On February 15, 2013, Defendants appealed from this Court’s order to the
United States Court of Appeals for the Fifth Circuit. (Doc. 38). However, this pending appeal
does not divest this Court of jurisdiction. See United States v. Lynd, 321 F.2d 26, 28 (5th Cir.
1963).
II.
The following facts are taken from Hoffman’s complaint (Doc. 1)2 and are accepted as
true for the purposes of this motion. See Bass v. Stryker Corp., 669 F.3d 501, 507 (5th Cir.
2012). In 1991, Louisiana adopted lethal injection as its method of execution. Lethal injection is
defined as “the intravenous injection of substance or substances in a lethal quantity into the body
of person convicted until such person is dead.” La. R.S. § 15:569. The Secretary of the DPSC is
charged with executing “the offender in conformity with the death warrant issue in the case.” La.
R.S. § 15:568. The “remaining details are left to the discretion of the DOC in developing and
adopting an execution protocol.” (Doc. 1, ¶ 20).
The DOC’s lethal injection protocol contains “prison directives, checklists, and any other
documents that guide the prison in its administration of lethal injection,” and has been revised
multiple times since 1991. (Doc. 1, ¶ 25). The most recent protocol available is from 2010
(“2010 Protocol”), which provides for the administration of three drugs: first, sodium thiopental;
second, pancuronium bromide; and third, potassium chloride. Sodium thiopental is an anesthetic,
which is administered to “prevent the inmate from suffering torture and pain when the second
and third drugs are administered.” (Doc. 1, ¶ 28). If an individual is not properly anesthetized,
the administration of pancuronium bromide and potassium chloride causes excruciating pain and
2
The complaints are substantially similar and any factual distinctions between the complaints will be noted.
2
suffering. However, sodium thiopental is no longer available in Louisiana. In a letter dated
October 28, 2010, general counsel for DOC indicated that that the DOC did not have sodium
thiopental in stock. In a local newspaper article dated April 10, 2011, representatives of the DOC
recognized the “need to revise the protocol due to the unavailability of sodium thiopental in
Louisiana.” (Doc. 1, ¶ 56).
Both Hoffman and Sepulvado have unsuccessfully tried to obtain the lethal injection
protocol from the Defendants.3 On July 18, 2012, Hoffman made a Louisiana Public Records Act
request for the current protocols pursuant to La. R.S. §§ 44:1 et seq. On July 30, 2012, DOC
denied the request, explaining that the requests “were exempted from disclosure because they
include internal security information,” and “because the protocol is not subject to the
Administrative Procedures Act, it is not subject to disclosure as a Public Record.” (Doc. 1, ¶ 44).
Similarly, on December 18, 2012, Sepulvado made the same request, and on January 8, 2013,
DOC denied the request for the same reasons it denied Hoffman’s request. (Doc. 47, ¶¶ 42-43).
Hoffman and Sepulvado both filed requests for an administrative remedy procedure
(“ARP”) with the Louisiana State Penitentiary. Both requested to be provided copies of the
current protocols. Hoffman’s ARP was rejected on December 6, 2012 because “the issue in your
ARP has not happened to you as of the date of your complaint.” (Doc. 1, ¶ 47). Similarly,
Sepulvado’s ARP was rejected on January 14, 2013. (Doc. 47, ¶ 45).
Because neither Hoffman nor Sepulvado have been able to obtain a copy of the lethal
injection protocol, they are unable to determine whether they will be subjected to
3
This is not the first suit in which Defendants have been asked to provide information about the status of Louisiana’s
lethal injection protocol since it became clear that sodium thiopental was no longer available. On April 25, 2012,
during oral arguments in a state action brought under the Louisiana Administrative Procedures Act, Code v.
Louisiana State Public Safety & Corrections, 2012 WL 5266135 (La. App. 1 Cir. 10/24/12), the court repeatedly
asked counsel for DOC to “provide an update on the status of a current lethal injection protocol, given the
unavailability of drugs, but counsel did not comply.” (Doc. 1, ¶ 60).
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“unconstitutional pain and torture upon [their] execution[s].” (Doc. 1, ¶ 52). Hoffman and
Sepulvado assert that DOC will substitute alternative drugs for sodium thiopental without
amending the protocols or “creating procedures appropriate to the properties of the new drugs[.]”
(Doc. 1, ¶ 66). The last known protocol, the 2010 Protocol, failed to “include adequate
safeguards to protect [condemned inmates] from cruel and unusual punishment.” (Doc. 1, ¶ 68).4
Hoffman and Sepuvaldo fear that their executions will not be carried out in “accordance with the
written instructions, or will be administered in such a way that fails to adequately safeguard
[their] rights.” (Doc. 1, ¶ 70). They also fear that “any purported revised and current protocol
will not be administered in a way that adequately protects [them] from cruel and unusual
punishment.” (Doc. 1, ¶ 93).
Hoffman and Sepulvado assert that Defendant Warden Cain is responsible “for ensuring
that there is a constitutional protocol” for executions and that he is responsible for “ensuring that
executions are carried out in a constitutional fashion.” (Doc. 1, ¶ 94). Defendant Warden
Norwood is responsible for assisting Warden Cain in his duties. Defendants DOC and Secretary
LeBlanc are responsible “for overseeing Warden Cain in his drafting of the protocols.” (Doc. 1, ¶
96). Finally, Defendant Governor Jindal is responsible “for overseeing the DOC in its
supervision of Warden Cain.” (Doc. 1, ¶ 97). Hoffman and Sepulvado claim that Defendants’
failure to provide notice of the protocol violates their Fifth and Fourteenth Amendment Rights to
Due Process, their Eighth and Fourteenth Amendments to be Free from Cruel and Unusual
Punishment, and their right to equal protection under the law.
4
The lack of adequate safeguards include: (1) the executioners are not medical professionals and have not received
adequate training; (2) the equipment has not been tested or maintained; (3) the protocols are not sufficiently specific
and thus, there is a likelihood that the execution will be carried out differently each time and subject to variances; (4)
the executioners are not required to be familiar with the drugs; (5) there is no standardized timing for the
administration of the drugs; (6) there is no provision for a medical history review; and (7) there are no provisions
for practice sessions .
4
III.
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When
reviewing the complaint, a court must accept all well-pleaded factual allegations as true. C.C.
Port, Ltd. v. Davis-Penn Mortg. Co., 61 F.3d 288, 289 (5th Cir. 1995). In order to survive a
motion to dismiss, the complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Defendants
have filed two motions to dismiss, arguing that, as to both Hoffman and Sepulvado, (1) their
claims are prescribed; (2) they have failed to state a claim upon which relief can be granted,
mandating dismissal under Federal Rule of Civil Procedure 12(b)(6); (3) Defendants are entitled
to qualified immunity; (4) this Court lacks jurisdiction under Federal Rule of Civil Procedure
12(b)(1) due to defendants’ sovereign immunity; (5) Defendants cannot be sued in their
individual capacity; and finally, as to Hoffman only, (6) Hoffman has not suffered any damages
and lacks standing to assert monetary damages.
Prescription
Defendants argue that the claims are prescribed and must be dismissed. Because Section
1983 has no statute of limitations, courts must look to the forum state’s applicable limitations for
the claim. Wallace v. Kato, 549 U.S. 384, 387 (2007). The United States Court of Appeals for the
Fifth Circuit has held that a Section 1983 challenge to a state’s “method of execution” is subject
to the state’s statute of limitations for personal injury actions. Walker v. Epps, 550 F.3d 407, 415
(5th Cir. 2008). Here, the applicable prescriptive period is one year. La. Civil Code art. 3492.
“Method of execution” actions accrue on the later of two dates: (1) “the date direct review of an
individual case is complete,” or (2) “the date on which the challenged protocol was adopted.” Id.
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at 414. “Of course, in the event a state changes its execution protocol after a death-row inmate's
conviction has become final, the limitations period will necessarily accrue on the date that
protocol change becomes effective.” Id.
Defendants assert that the dates direct review of both Hoffman and Sepulvado’s
convictions and sentences were complete when the United States Supreme Court denied their
writs of certiorari (October 16, 2000 for Hoffman and October 15, 1996 for Sepulvado), and
thus, their claims are prescribed. Alternatively, Defendants argue that it has been more than one
year since the protocols were changed or adopted, suggesting three possible dates: (1) January 7,
2010, the date of the most recent publically available protocol; (2) October 28, 2010, the date of
a letter from the DOC’s general counsel indicating that the DOC did not have sodium thiopental
in stock; or (3) April 10, 2011, the date of a newspaper article in which DOC’s representatives
stated that the protocol needed to be revised due to the lack of sodium thiopental. Defendants
argue that the latest possible date was April 10, 2011, and thus, both Hoffman and Sepulvado’s
claims have prescribed.
Defendants also argue that their failure to produce the protocol does not toll the
prescriptive period, relying on Walker. In Walker, the Fifth Circuit explained that because the
plaintiffs knew that they would be executed via lethal injection “from the moment their
convictions became final . . . [they] could have filed their § 1983 action on the basis of this fact
alone, within the limitations period. They did not need the detailed information they allege the
State belatedly disclosed to file their action.” Walker, 550 F.3d at 417.
Hoffman and Sepulvado argue that the DOC’s supply of sodium thiopental either
expired or was depleted at some unknown date, rendering the 2010 Protocol obsolete. At the
time of filing the complaint, it was Hoffman’s belief that there was no operative protocol and
6
even if there were an operative protocol, this was not disclosed to the plaintiff. Hoffman and
Sepulvado argue that the Defendants’ reliance on Walker is misplaced because in Walker, the
challenged protocol was adopted in 1998 and had not been changed by 2007, when the
petitioners filed their actions. Id. at 416 (noting that since Mississippi had adopted its protocol,
“it has been no secret that Mississippi uses a three-drug combination[.]” Walker, 550 F.3d at 417.
Here, Louisiana’s lethal injection protocol has been kept secret since it became clear that sodium
thiopental was no longer available. It was not until February 5, 2013 that Defendants, in open
court, announced that it would use a single dose of pentobarbital to execute condemned inmates.
Finally, Hoffman and Sepulvado assert “prescription is not a proper ground for a motion
to dismiss under Rule 12(b)(6) where it is contingent upon undeveloped facts.” (Doc. 46 at 50.)
For instance, Hoffman and Sepulvado argue that it is still unclear as to what the execution
protocol entails, if there is a protocol in place at all, and what effect switching from sodium
thiopental to pentobarbital has had on the protocol. Hoffman and Sepulvado point to the
Eleventh Circuit’s recent opinion in Arthur v. Thomas, in which Alabama had changed its
protocol to replace sodium thiopental with pentobarbital. Arthur v. Thomas, 674 F.3d 1257 (11th
Cir. 2012). In Arthur, the district court dismissed the plaintiff’s claims as time-barred. Id. at
1259. The plaintiff “first became subject to lethal injection . . . in July 2002 [and] initiated this
action in June, 2011, two months after Alabama announced that it would be substituting
pentobarbital for sodium thiopental in its three-drug lethal injection procedure.” Id. at 1260, n. 2.
Plaintiff had to show that he filed his Section 1983 action “within two years of a significant
change in Alabama’s method of administering lethal injections.” Id. at 1260. The Eleventh
Circuit found that “[w]hether a significant change has occurred in a state’s method of execution
is a fact-dependent inquiry,” and there was “no finding about the manner in which Alabama
7
administers its lethal injections, no evaluation of whether Alabama's representations are accurate,
and no opportunity whatsoever to contradict the State's assertions with Arthur's own evidence.”
Id. at 1260-61. “[T]he lack of factual development in this record is only exacerbated by
Alabama's policy of maintaining secrecy surrounding every aspect of its three-drug execution
method.” Id. at 1261. The Eleventh Circuit concluded that it was erroneous for the district court
dismiss the plaintiff’s claims “without any opportunity for factual development[.]” Id. at 1262.
Hoffman and Sepulvado argue that like Arthur, it would be erroneous to dismiss their claims in
the absence of further factual development.
In response, Defendants argue changing the drug combination in lethal injections is not a
“substantial or significant change in the lethal injection protocol,” and does not restart the
prescriptive period. Powell v. Thomas, 643 F.3d 1300, 1304 (11th Cir. 2011). Additionally,
Defendants assert that the complaints attack other portions of the 2010 Protocol, such as
adequate safeguards and the training of the execution team, which would not be changed by the
substitution of sodium thiopental for pentobarbital. Thus, Defendants contend that these issues
were known or should have been known to Hoffman and Sepulvado long before they filed suit,
and their claims are still prescribed. Defendants point to Valle v. Singer, in which the Eleventh
Circuit explained that Florida’s 2006 “switch to pentobarbital does not awaken this long stale
claim” and “the substitution of pentobarbital did not reset the statute of limitations.” Valle v.
Singer, 655 F.3d 1223, 1236 (11th Cir. 2011) (internal quotations omitted).
Defendants argue that Hoffman and Sepulvado knew as early as October 28, 2010 that
Louisiana did not have sodium thiopental in stock, and could have filed their actions then.
Defendants assert that condemned prisoners do not need to wait until they have all the facts to
file a section 1983 action. See Walker, 550 F.3d at 417; see also Cooey v. Strickland, 479 F.3d
8
412, 422 (6th Cir. 2007) (finding that “[a]ctual knowledge [of the protocol] is not the appropriate
measure; the test is whether he knew or should have known based upon reasonable inquiry, and
could have filed suit and obtained relief.” Id.).
Finally, Defendants point to the Eleventh Circuit’s reasoning in Powell, in which the
Eleventh Circuit explained
Powell could have challenged the ADOC's ‘secrecy’ surrounding
the method of execution beginning July 31, 2002, as the facts
supporting this cause of action should have been apparent to any
person with a reasonably prudent regard for his rights. Indeed, as
Powell acknowledges in his opening brief, “Alabama does not
mandate by statute or regulation what drugs are to be used in
conducting a lethal injection, and the ADOC may change the drugs
used in the protocol at any time for any reason without notice or
oversight[,] ... [and the drug used] is subject to change at any
time.” Thus, Powell fails to show how his claim about the secrecy
surrounding the ADOC's recent change in lethal injection protocol
was revived by the ADOC's 2011 switch in drugs.
Powell, 643 F.3d at 1305 (internal quotations and citations omitted). Defendants assert that as in
Powell, Louisiana does not list what drugs are to be used in its lethal injection, which is subject
to change at the discretion of the DPSC. Defendants argue that Hoffman and Sepulvado have
known that they would be executed via lethal injection, and there is no reason that they could not
have filed their suit when they first became aware that Louisiana did not have sodium thiopental.
The Court is not convinced by the Defendants’ arguments. There are factual distinctions
between the cases cited by the Defendants and the case at bar. In Powell, the plaintiff filed suit
after the Alabama Department of Corrections “publicly announced that it was changing the first
drug in its lethal injection protocol from sodium thiopental to pentobarbital.” Powell, 643 at
1302. Similarly, in Valle, the plaintiff knew that Florida had switched from sodium thiopental to
pentobarbital, and then filed suit. Valle, 655 F.3d at 1226.
9
Here, Hoffman and Sepulvado did not know that Louisiana was switching to
pentobarbital when they filed suit. All Hoffman and Sepulvado knew was that Louisiana did not
have sodium thiopental in stock based on an October 2010 letter from DOC’s general counsel
and a newspaper article from April of 2011. However, as the Fifth Circuit made clear, a “method
of execution” action accrues on the later of two dates: (1) “the date direct review of an
individual case is complete,” or (2) “the date on which the challenged protocol was adopted.”
Walker, 550 F.3d at 414. “Of course, in the event a state changes its execution protocol after a
death-row inmate's conviction has become final, the limitations period will necessarily accrue on
the date that protocol change becomes effective.” Id. Defendants have not revealed when the
protocol was changed and Defendants cannot rely on a newspaper article in which DOC
representatives stated the need to change the protocol. Recognizing that a protocol needs to be
changed is not the same as changing the protocol. Thus, because of the Defendants’ refusal to
provide this information, Hoffman and Sepulvado’s claims have not prescribed.5
Failure to State a Claim upon which Relief can be Granted Against Governor Jindal, Secretary
LeBlanc, Warden Norwood, and the State of Louisiana through the DPSC
Defendants argue that under Section 1983, only “the direct acts or omissions of
government officials . . . will give rise to individual liability.’ Alton v. Texas A&M Univ., 168
F.3d 196, 200 (5th Cir. 1999). Defendants assert that Hoffman and Sepulvado have not asserted
any claims of direct actions or omissions as to Governor Jindal, the DPSC, Secretary LeBlanc,
and Warden Norwood. Rather, Defendants contend that any claims against these defendants are
“based upon conclusory allegations of respondeat superior.” Additionally, Defendants argue that
5
While the Court recognizes the Defendants’ position with respect to the challenged procedures in the 2010
Protocol, such as inadequate training of the executioners, this does not change the outcome because the Defendants
have indicated that the 2010 Protocol will need to be changed. Hoffman and Sepulvado have no way of knowing
whether the challenged procedures in the 2010 Protocol will be the same in the new protocol, if there is a new
protocol. Thus, the Court still finds that Hoffman and Sepulvado’s claims have not prescribed.
10
one-drug protocols have been ruled constitutional by other circuits, and thus, Sepulvado has
failed to state a claim upon which relief can be granted.
The Court first addresses Defendants’ argument as to Sepulvado and the notion that a
one-drug protocol is constitutional. While other circuits may have found that one-drug protocols
are constitutional, this is not the issue addressed in the complaint. The complaint is not
challenging the constitutionality of a one-drug protocol. Rather, the complaint is challenging the
constitutionality of executing a condemned prisoner without telling him the means and manner
by which he will be executed. To introduce an argument about one-drug protocols goes beyond
the scope of the complaint and will not be considered.
Turning to whether Hoffman and Sepulvado have stated a claim against the Defendants,
Hoffman and Sepulvado argue that their claims are not based on a theory of vicarious liability,
but based instead on statutorily conferred duties and powers. The Governor is authorized to
appoint a Secretary of the DPSC and the Secretary “shall perform his functions under the general
control and supervision of the governor.” La. R.S. 36:403. The Secretary is responsible for
“execut[ing] the offender in conformity with the death warrant issued in the case.” La. R.S.
15:568. The Warden of Angola is charged with summoning physicians and a “competent person .
. . to administer the lethal injection.” La. R.S. 15:570. The Secretary is also responsible for
arranging for the witnesses to attend the execution. Finally, Hoffman and Sepulvado assert that
Warden Norwood is responsible for the Administrative Remedy system on death row at Angola,
and thus is obligated to respond to Hoffman and Sepulvado’s ARP requests.
In response, Defendants first assert that a state and its agencies are not “persons” under
Section 1983, and thus, Hoffman and Sepulvado cannot maintain a Section 1983 action against
DPSC. Defendants are correct. See McGuire v. Lafourche Parish Work-Release Facility, 2009
11
WL 4891914, at *3 (E.D. La. 2009) (finding that the Louisiana DPSC “is a state agency and, as
such, is not a ‘person’ subject to suit under [Section 1983].” Id.). Defendants further argue that
Hoffman and Sepulvado have failed to show a specific act or omission by the individual
Defendants, leaving supervisory liability as the only possible theory of recovery, which, as
previously stated, is not permissible under Section 1983.
The Court finds that Hoffman and Sepulvado cannot maintain actions as to Governor
Jindal and the DPSC, but can maintain 1983 actions as to Warden Norwood, Warden Cain, and
the Secretary. Governor Jindal’s only responsibility as alleged is appointing the Secretary and
supervising his actions. However, the Secretary is charged with executing condemned prisoners
and the Warden(s) are charged with overseeing the execution. Thus, the Court finds that
Hoffman and Sepulvado can maintain 1983 actions as to these Defendants.
Qualified Immunity
Defendants next argue that they are entitled to qualified immunity under the two step
method established in Saucier v. Katz, 533 U.S. 194, 201 (2001). In Saucier, the Supreme Court
found that the initial question is whether, taking the facts in the light most favorable to the party
asserting injury, the conduct violated a constitutional right. Id. If the conduct did not violate any
constitutional right, “there is no necessity for further inquiries.” Id. If the conduct did violate a
constitutional right, the next step “is to ask whether the right was clearly established.” Id.
Defendants argue that their conduct does not violate a constitutional right because of the
possibility of future violations. Defendants point to the Fifth Circuit’s recent decision in Thorson
v. Epps, where a condemned Mississippi inmate Mississippi’s lethal injection protocol as
violating his Eighth Amendment right to be free from cruel and unusual punishment. Thorson v.
Epps, 701 F.3d 444 (5th Cir. 2012). The Fifth Circuit rejected Thorson’s argument that the
12
protocol “could result in cruel and unusual punishment[,]” because “mere speculation cannot rise
to the level of an objectively intolerable risk.” Thorson v. Epps, 701 F.3d 444, 449 (5th Cir.
2012). In short, challenges to protocols based on the risk of what could go wrong are insufficient.
However, Defendants miss the point. In Thorson, the plaintiff already had the protocol.
Hoffman and Sepulvado do not have a copy of the protocol, and thus, their argument is not based
on the potential of what could go wrong. Rather, Hoffman and Sepulvado cannot even begin to
challenge the protocol without knowing what it is. As this Court has already said, “[f]undamental
fairness, requires that the inmate be given meaningful and adequate notice of how his rights have
been affected by the changes in the execution protocol.” (Doc. 28, at 3). Thus, the Court finds
that at this juncture, the Defendants are not entitled to qualified immunity.
Eleventh Amendment
Defendants further argue that this action is barred by the Eleventh Amendment and this
Court lacks jurisdiction to hear this dispute. However, this argument has no merit under Ex parte
Young, 209 U.S. 123 (1908) and its progeny. As the Fifth Circuit explained, under Ex parte
Young, “the Eleventh Amendment does not bar a suit against a state official who is alleged to be
acting in violation of federal law. The Ex parte Young doctrine is premised on the concept that a
state cannot authorize its officials to violate the Constitution and laws of the United States.” Cox
v. City of Dallas, Tex., 256 F.3d 281, 307 (5th Cir. 2001). In the context of challenges to lethal
injection protocols, challenges based on the Eleventh Amendment have also been rejected. See
Thorson v. Epps, 2009 WL 1766806, at *1(N.D. Miss. 2009) (finding that “suits for prospective
injunctive relief against a state official who is alleged to be acting in violation of federal law are
not barred by the Eleventh Amendment.”). Thus, the Court is not persuaded by this argument.
Equitable Relief and Standing for Monetary Damages
13
Finally, Defendants argue that Hoffman and Sepulvado cannot seek equitable relief
against Jindal, LeBlanc, Cain, or Norwood in their individual capacities. Hoffman and Sepulvado
did not address this in their opposition, which Defendants argue is a concession. The Court finds
that because neither party adequately addressed this issue, it will decline ruling on this matter.
Defendants also argue that Hoffman and Sepulvado cannot seek monetary damages
because this remedy is unavailable to them pursuant to the Prison Litigation Reform Act, 42
U.S.C. § 1997(e)(e), which states that “No Federal civil action may be brought by a prisoner . . .
for mental or emotional injury suffered while in custody without a prior showing of physical
injury.”
The Court finds that Hoffman and Sepulvado have alleged that they have experienced
emotional distress but have not alleged any physical injury. The Fifth Circuit has determined that
if a plaintiff “fails to show a physical injury, § 1997e(e) bars recovery for mental and emotional
damages.” Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (citing Harper v. Showers, 174
F.3d 716, 719 (5th Cir. 1999)). Thus, because Hoffman and Sepulvado have not alleged any
physical injury, they are unable to recover for mental and emotional damages, and this claim
shall be stricken from the complaints.
IV.
Accordingly, the Court finds that Hoffman and Sepulvado’s claims should be permitted
to proceed as to all the named Defendants with the exception of Governor Jindal and DPSC.
Additionally, Hoffman and Sepulvado are not entitled to seek monetary damages absent a
showing of prior physical injury.
Defendant’s Motions to Dismiss are DENIED. (Doc. 40 and 42).
14
Signed in Baton Rouge, Louisiana on April 16th, 2013.
JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
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