Hooper v. Jones et al
Filing
31
ORDER denying 17 Plaintiff's Corrected Third Amended Motion for Preliminary Injunction; denying 19 Plaintiff's Motion to Set Hearing on Motion for Preliminary Injunction; and dismissing as moot 5 , 6 , 7 and 16 plaintiff's prior filings requesting injunctive relief, as plaintiff's corrected third amended motion for preliminary injunction supercedes these motions (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 8/3/2012. (ks)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MICHAEL EDWARD HOOPER,
Plaintiff,
vs.
JUSTIN JONES, Director, Oklahoma
Department of Corrections; RANDALL
G. WORKMAN, Warden, Oklahoma
State Penitentiary, and, DOES,
UNKNOWN EXECUTIONERS, in their
capacities as employees or agents of the
Oklahoma Department of Corrections,
Defendants.
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Case No. CIV-12-758-M
ORDER
Before the Court is Plaintiff’s Corrected Third Amended Motion for Preliminary
Injunction (“Motion”)(Dkt. No. 17).1 Alleging a deprivation of his Fifth, Eighth, and
Fourteenth Amendment rights, Plaintiff seeks a preliminary injunction barring the
Defendants from executing him on August 14, 2012, under the current Oklahoma Department
of Corrections (“ODOC”) protocol for lethal injection executions. The bases underlying his
Amended Complaint (Dkt. No. 15) and proffered in support of his Motion are: (1) that the
protocol does not require the State to have a backup dose of pentobarbital in the event the
1
This Motion supercedes Plaintiff’s prior filings requesting injunctive relief. Accordingly,
docket numbers 5, 6, 7, and 16 are of no consequence and are hereby dismissed as moot.
first dose fails to render him unconscious; (2) the unknown (to him) shelf life and expiration
date of the twenty new doses of pentobarbital recently acquired by the State; (3) the unknown
(to him) approved use of the twenty new doses of pentobarbital - whether for human or
veterinary use; and (4) whether the State’s three-drug protocol complies with the Eighth
Amendment in light of other states’ adoption of a one-drug protocol for lethal injection.
Preliminary Injunction Standards
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 in the
absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an
injunction is in the public interest. Winter v. Natural Resources Defense Council, 555 U.S.
7, 20 (2008).
We state again, as we did in Nelson, that a stay of execution is an
equitable remedy. It is not available as a matter of right, and equity must be
sensitive to the State’s strong interest in enforcing its criminal judgments
without undue interference from the federal courts. 541 U.S., at 649-650, 124
S.Ct. 2117. See In re Blodgett, 502 U.S. 236, 239-240, 112 S.Ct. 674, 116
L.Ed.2d 669 (1992) (per curiam); Delo v. Stokes, 495 U.S. 320, 323, 110 S.Ct.
1880, 109 L.Ed.2d 325 (1990) (KENNEDY, J., concurring). Thus, like other
stay applicants, inmates seeking time to challenge the manner in which the
State plans to execute them must satisfy all of the requirements for a stay,
including a showing of a significant possibility of success on the merits. See
Barefoot v. Estelle, 463 U.S. 880, 895-896, 103 S.Ct. 3383, 77 L.Ed.2d 1090
(1983). See also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865,
138 L.Ed.2d 162 (1997) (per curiam)(preliminary injunction not granted unless
the movant, by a clear showing, carries the burden of persuasion).
A court considering a stay must also apply “a strong equitable
presumption against the grant of a stay where a claim could have been brought
at such a time as to allow consideration of the merits without requiring entry
of a stay.” Nelson, supra, at 650, 124 S.Ct. 2117. See also Gomez v. United
2
States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 654, 112 S.Ct.
1652, 118 L.Ed.2d 293 (1992) (per curiam) (noting that the “last-minute nature
of an application” or an applicant’s “attempt at manipulation” of the judicial
process may be grounds for denial of a stay).
Hill v. McDonough, 547 U.S. 573, 584 (2006).
Findings of Fact
The Court takes judicial notice of the following previously determined findings of
fact:
1.
The first step of the ODOC’s lethal injection protocol mandates the
intravenous administration to the subject inmate of 5,000 milligrams of
pentobarbital (2,500 milligrams in each arm). Pavatt v. Jones, 627 F.3d
1336, 1339 (10th Cir. 2010).
2.
The ODOC’s protocol requires the attending physician to “ensure that
the [inmate] is sufficiently unconscious [as a result of the pentobarbital]
prior to the administration of the [second drug and paralytic agent,]
vecuronium bromide . . . .” Id.
3.
The administration of a sufficient dose of pentobarbital will render an
individual unconscious and the administration of a sufficient dose of
pentobarbital will be lethal. Id.
4.
Dr. Mark Dershwitz, an anesthesiologist with a Ph.D. in
pharmacology,“persuasively characterized a 5,000 milligram dose of
pentobarbital as ‘an enormous overdose’” that “would cause a flat line
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of the EEG, which is the deepest measurable effect of a central nervous
system depressant,” and “would be lethal as a result of two
physiological responses”: the cessation of respiration and the drop in
blood pressure “to an unsurvivable level.” Id.
5.
Dr. Dershwitz “very persuasively explained” that “pentobarbital is
highly likely to cause death in five minutes or within a short time
thereafter.” Id.
6.
Dr. Dershwitz “credibly testified . . . that the 5,000–milligram dosage
will give rise . . . to a virtually nil likelihood that the inmate will feel the
effects of the subsequently administered vecuronium bromide and
potassium chloride.” Id. (emphasis added).
7.
Dr. Dershwitz “persuasively responded to Dr. [David] Waisel’s
testimony that clinicians do not know what dosage of pentobarbital
would be required to achieve anesthesia by pointing out that the use of
pentobarbital to induce a barbiturate coma, which at least in Dr.
Dershwitz’s practice is a common use of pentobarbital, takes the patient
to a state of unconsciousness beyond a normal clinical level of
anesthesia.” Id.
8.
Under the standards set forth in Baze v. Rees, 553 U.S. 35, 50-51
(2008), . . . any risk associated with the intravenous injection of 5,000
milligrams of pentobarbital falls far short of the level of risk that must
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be shown as a prerequisite to establishing an Eighth Amendment claim.
Memorandum and Order, Pavatt v. Jones, CIV-10-141-F, pp. 1-2, Nov.
22, 2010; Transcript of Preliminary Injunction hearing held on Nov. 19,
2010, Pavatt v. Jones, CIV-10-141-F, Dkt. No. 107, p. 156.
9.
The intravenous injection of 5,000 milligrams of pentobarbital will, at
a minimum, induce a barbiturate coma, and the far more likely outcome
is the suppression of respiratory and central nervous system activity to
the point that death will result within a short time after injection of the
chemical. The likelihood of any other outcome of the intravenous
injection of 5,000 milligrams of pentobarbital is effectively nil. The
likelihood that the inmate will be sentient for more than a very short
time following the intravenous injection of 5,000 milligrams of
pentobarbital (and, consequently, that he will experience any pain or
suffering as a result of the injection of vecuronium bromide and
potassium chloride at the intervals specified in the Oklahoma protocol)
is also effectively nil. Memorandum and Order, Pavatt v. Jones, CIV10-141-F, pp. 1-2, Nov. 22, 2010 (emphasis added).
Likelihood of Success on the Merits
In Baze v. Rees, 553 U.S. 35 (2008), the Supreme Court acknowledged “that
subjecting individuals to a risk of future harm – not simply actually inflicting pain – can
qualify as cruel and unusual punishment.” Id. at 49. The Court emphasized, “[t]o establish
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that such exposure violates the Eighth Amendment, . . . 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.’” Id. at 49–50 (quoting Helling v. McKinney, 509 U.S. 25,
33, 34–35 (1993)).
In discussing Baze’s application to an inmate’s challenge to Oklahoma’s lethal
injection protocol, the Tenth Circuit approved the District Court’s holding that “[s]imply
because an execution method may result in pain, either by accident or as an inescapable
consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that
qualifies as cruel and unusual” and “[a] stay of execution may not be granted on [such]
grounds . . . unless the condemned prisoner establishes that the State’s lethal injection
protocol creates a demonstrated risk of severe pain . . . [and] that the risk is substantial when
compared to the known and available alternatives.” Pavatt v. Jones, 627 F.3d 1336, 1338-39
(10th Cir. 2010).2
Plaintiff has not demonstrated that he is likely to succeed on the merits of his claims
or that there are serious questions going to the merits of his claims. He has not made a clear
showing that a substantial risk of severe pain exists compared to known and available
alternatives. As to his claim that Oklahoma’s three-drug protocol for lethal injection is
unconstitutional in light of other states’ adoption of a one-drug protocol, Plaintiff asserts in
2
At the time of the Tenth Circuit’s opinion in Pavatt, the Court was aware that Ohio and
Washington had replaced their three-drug protocol with a one-drug protocol based on pentobarbital.
Id. at 1338, n. 1.
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his Reply that he is not challenging Defendants’ intention to adhere to their lethal injection
protocol, but rather that an “inadvertent mishap through no one’s fault, or a human mistake
in administration” could cause him to receive an injurious dose of pentobarbital that might
either not leave him sufficiently unconscious or might render him severely damaged if the
execution had to be halted.3 “Given what our cases have said about the nature of the risk of
harm that is actionable under the Eighth Amendment, a condemned prisoner cannot
successfully challenge a state’s method of execution merely by showing a slightly or
marginally safer alternative.” Baze, 553 U.S. at 50.
Instead, the proffered alternatives must effectively address a “ substantial risk
of serious harm.” Farmer, supra, at 842, 114 S.Ct. 1970. To qualify, the
alternative procedure must be feasible, readily implemented, and in fact
significantly reduce a substantial risk of severe pain. If a State refuses to adopt
such an alternative in the face of these documented advantages, without a
legitimate penological justification for adhering to its current method of
execution, then a State’s refusal to change its method can be viewed as “cruel
and unusual” under the Eighth Amendment.
Id. at 52.
Plaintiff has not provided documented advantages to the one-dose protocol. He has
simply asserted that other states are now using one drug for their lethal injections.
Specifically to him, Plaintiff has not clearly shown Oklahoma’s three-drug protocol presents
a risk that is sure or very likely to cause serious illness and needless suffering and give rise
3
“Some risk of pain is inherent in any method of execution – no matter how humane – if
only from the prospect of error in following the required procedure. It is clear, then, that the
Constitution does not demand the avoidance of all risk of pain in carrying out executions.” Baze,
553 U.S. at 47.
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to sufficiently imminent dangers. The Tenth Circuit has previously determined the District
Court did not commit error when it found that any risk associated with the use of
pentobarbital in Oklahoma’s lethal injection protocol fell short of the level of risk that must
be shown as a prerequisite to establish an Eight Amendment claim. Pavatt at 1339; see also
Wackerly v. Jones, 398 Fed. Appx. 360, 362-63 (10th Cir. Oct. 12, 2010)
(unpublished)(noting that the Court had previously upheld Oklahoma’s three-drug protocol
as constitutional and finding that the 5,000 miligram dose [of sodium thiopental] had a built
in redundancy of the amount of the drug obviating the need for a back-up dose or an alternate
procedure). Plaintiff has not presented any information sufficient for this Court to disregard
prior findings and prior precedent and conclude that Plaintiff has made a clear showing of
a likelihood of success on the merits of his claim.
This Court further finds that Plaintiff has not demonstrated a likelihood of success on
the merits regarding his claim that a “back-up dose” of pentobarbital must be available at the
time of his execution. Plaintiff has merely speculated as to what he believes could be a
possible danger of not having an additional dose of pentobarbital. Contrary to what he
claims is possible, it has been determined and accepted that 5,000 milligrams of pentobarbital
is “an enormous overdose” that would render an individual unconscious and would result in
the cessation of respiration and the drop in blood pressure “to an unsurvivable level.”
Further, such a dose will give rise to a virtually nil likelihood that the inmate will feel the
effects of the subsequently administered vecuronium bromide and potassium chloride.
Based on the foregoing, Plaintiff’s claims regarding the expiration date of the twenty
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new doses of pentobarbital recently acquired by the State and his claims regarding those
doses’ approved use are inapplicable to his upcoming execution. Warden Randall Workman
has attested through sworn affidavit (Affidavit of Randall G. Workman, July 27, 2012,
Exhibit 1 to Defendants’ Response and Objection to Plaintiff’s Third Amended Motion for
Preliminary Injunction), and Plaintiff’s counsel has accepted (Plaintiff’s Reply to
Defendants’ Response and Objection to Plaintiff’s Third Amended Motion for Preliminary
Injunction, p. 2), that the drugs to be utilized in the execution of Plaintiff were obtained by
the ODOC by lawful and proper means, that he knows of no facts to cause him to question
the source, method of obtaining, or quality of the drugs to be utilized, and that the drugs to
be utilized have been and will be maintained under manufacturer specified environmental
conditions to ensure and maintain their integrity. (Workman affidavit, ¶¶ 5-7). Additionally,
as the State will be using its previously obtained dose of pentobarbital and will not be
utilizing a back-up dose, the twenty new doses obtained by the State will not be used in
Plaintiff’s execution. Possible questions regarding those doses’ approved use are not,
therefore, applicable or relevant to the procedure and the protocol pertaining to Plaintiff’s
execution.
As Plaintiff has failed to clearly show a substantial likelihood of success on the merits,
the Court need not address the remaining elements necessary for the issuance of a
preliminary injunction. Nova Health Systems v. Edmondson, 460 F.3d 1295, 1299 (10th Cir.
2006). Even if it was necessary, however, Plaintiff’s request for a preliminary injunction
would fail. Plaintiff can not demonstrate the sufficiently imminent danger of a severe
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likelihood of irreparable harm, as Courts have determined his chances are “nil” that he will
suffer injury under the State’s current protocol. Nor under his specific set of circumstances
can he demonstrate that the balance of equities tips in his favor between his preference of
execution under a one-dose protocol and the State’s and public’s interest in the timely
enforcement of Plaintiff’s sentence. The State’s and public’s interests outweigh any injury
Plaintiff might allege.4
ACCORDINGLY, Plaintiff’s Corrected Third Amended Motion for Preliminary
Injunction (Dkt. No. 17) is DENIED. Additionally, based on the foregoing, Plaintiff’s
Motion to Set Hearing on Motion for Preliminary Injunction (Dkt. No. 19) is also DENIED.
Further, as stated in footnote 1, supra, Plaintiff’s pleadings at Dkt. Nos. 5, 6, 7, and 16 are
DISMISSED AS MOOT.
IT IS SO ORDERED this 3rd day of August, 2012.
4
As the Court has determined that a preliminary injunction should not issue, it need not
address Defendants’ assertion that Petitioner’s claims are barred for failure to exhaust his
administrative remedies.
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