Warner et al v. Gross et al

Filing 349

ORDER granting 333 Defendants' Partial Motion to Dismiss. Counts I, III and VIII are DISMISSED under Rule 12(b)(6). Edward Evans, David Parker and Greg Williams, all of whom were previously named as defendants in their official capacities, are likewise DISMISSED under Rule 12(b)(6). All dismissals are with prejudice, and without leave to amend. Signed by Honorable Stephen P. Friot on 9/15/2020. (llg)

Case 5:14-cv-00665-F Document 349 Filed 09/15/20 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RICHARD GLOSSIP, et al.,
Plaintiffs,
-vsRANDY CHANDLER, et al.,
Defendants.

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Case No. CIV-14-0665-F

ORDER
This action challenges Oklahoma’s execution protocol under the United States
Constitution, the Oklahoma Constitution and other laws.

The third amended

complaint (hereafter “the complaint”) alleges that plaintiffs are persons who have
been sentenced to death by an Oklahoma court. Doc. no. 325, ¶ 2. Defendants are
alleged to be state actors, sued in their official capacities only, who are charged with
carrying out Oklahoma’s death sentences. Id. at ¶¶ 2, 11-18.
Currently before the court is defendants’ partial motion to dismiss three of the
ten counts alleged in the complaint. Doc. no. 333. The challenged counts are counts
I, III and VIII. Defendants also ask the court to dismiss three defendants who were
named in prior versions of the complaint but who are not named in the third amended
complaint. The motion is brought under Rule 12(b)(6), Fed. R. Civ. P. Plaintiffs
filed a response brief, objecting to dismissal of the counts in question. Doc. no. 343.
Plaintiffs do not object to the dismissal of the three previously-named defendants.
Defendants filed a reply brief. Doc. no. 345.
The motion will be granted for the reasons stated below.

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Standards
The inquiry under Rule 12(b)(6) is whether the complaint contains enough
facts to state a claim for relief that is plausible on its face. Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir., 2007), quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 547 (2007). To survive a motion to dismiss, a
plaintiff must nudge his claims across the line from conceivable to plausible. Id.
The mere metaphysical possibility that some plaintiff could prove some set of facts
in support of the pleaded claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims. Ridge at Red Hawk, 493 F.3d at 1177.
In conducting its review, the court assumes the truth of the plaintiff’s wellpleaded factual allegations and views them in the light most favorable to the plaintiff.
Id. Pleadings that are no more than legal conclusions are not entitled to the
assumption of truth; while legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations. Ashcroft v. Iqbal, 556
U.S.662, 664 (2009). When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief. Id. The court will disregard mere “labels and conclusions”
and “[t]hreadbare recitals of the elements of a cause of action” to determine if what
remains meets the standard of plausibility. Twombly, 550 U.S. at 555; Iqbal, 556
U.S. at 678. “Determining whether a complaint states a plausible claim for relief will
… be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
Count I
Count I alleges a violation of the Due Process Clause of the Fifth Amendment
to the United States Constitution. It alleges that defendants’ failure to disclose
sufficient information regarding Oklahoma’s execution protocol prevents plaintiffs
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from determining the legality of all aspects of the protocol, prohibits plaintiffs from
consulting medical experts regarding aspects of the protocol, and prohibits plaintiffs
from determining and seeking to remedy the ways in which the protocol presents an
avoidable risk of unconstitutional pain and suffering during executions. Doc. no.
325, ¶ 118. Count I also alleges that the discretion the protocol gives to the
Oklahoma Department of Corrections Director to change the implementation of
death sentences denies plaintiffs sufficient notice and an opportunity to challenge
the manner of their executions. Id. at ¶ 119. Count I alleges that in light of these
alleged circumstances, executing plaintiffs pursuant to Oklahoma’s protocol would
violate the Due Process Clause of the Fifth Amendment by depriving them of their
lives and liberty without sufficient notice and without an opportunity to be heard on
the execution procedures to be used. Id. at ¶ 120.
Defendants challenge count I on two grounds. First, defendants argue the Due
Process Clause of the Fifth Amendment does not apply to state actors. Second,
defendants argue that even if the court were to construe count I as a claim brought
under the Due Process Clause of the Fourteenth Amendment (which applies to state
actors), count I would fail on its merits.1

1

In addition to count I, other counts also rely, in whole or in part, on the Due Process Clause of
either the Fifth or the Fourteenth Amendment. However, of these other counts, only count III is
challenged by defendants’ motion. For reference going forward, the other due process counts are
as follows.
Count III is challenged and is addressed next in this order. It alleges a deliberate indifference
claim based in part on fifth amendment due process. However, as noted several times in this
order, the Due Process Clause of the Fifth Amendment does not apply to state actors.
Count IV references the Fifth Amendment as part of plaintiffs’ claim that the protocol denies
access to counsel and to the courts. Doc. no. 325, ¶¶ 135, 141. Presumably, count IV’s
reference to the Fifth Amendment is a reference to the Due Process Clause of the Fifth
Amendment. However, the Fifth Amendment’s Due Process Clause does not apply to state
actors. (cont’d)

3

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There is no question that, as written, count I fails because it is brought under
the Due Process Clause of the Fifth Amendment, which applies to federal but not
state actors. See, Koessel v. Sublette County Sheriff’s Dept., 717 F.3d 736, 748, n.2
(10th Cir. 2013) (“The Due Process Clause of the Fifth Amendment applies only to
action by the federal government while the Due Process Clause of the Fourteen[th]
Amendment applies to actions by state governments. Here, Koessel alleges conduct
only done by state authorities, and thus there can be no Fifth Amendment claim.”).
Plaintiffs concede this point and ask the court to either construe count I as brought
under the Fourteenth Amendment or permit them to amend to fix their pleading
error. Given the court’s earnest hope that unnecessary rounds of pleadings and
motions can be avoided, it will treat plaintiffs’ counsel more generously than it
would be required to treat even the most unsophisticated pro se litigant. The court
will, accordingly, address the sufficiency of count I construed as a fourteenth
amendment due process claim.
Construed as a fourteenth amendment due process claim, defendants
challenge count I based on Whitaker v. Collier, 862 F.3d 490 (5th Cir. 2017).
Whitaker affirmed the district court’s dismissal of a fourteenth amendment due
process challenge to Texas’s execution protocol. The Whitaker counts that dealt
Count VII alleges that plaintiffs’ fourteenth amendment procedural due process rights are
violated by the protocol because Oklahoma law does not provide an adequate post-deprivation
remedy for the harm that will be caused by denial of the right to be executed using an ultrashortacting barbiturate. Id. at ¶154.
Count IX includes a fourteenth amendment substantive due process claim based on
experimentation on captive human subjects. Id. at ¶ 184.
Count X includes a fourteenth amendment due process claim which appears to duplicate the
fourteenth amendment claim plaintiffs say they intended to allege in count I. In count X,
plaintiffs allege that defendants’ concealment of and refusal to provide information about the
protocol deprives plaintiffs of their right to notice and an opportunity to be heard in violation
of the Due Process Clause of the Fourteenth Amendment. Id. at ¶ 193.

4

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with the inability to access information about the method of execution and the lack
of a notice requirement in the execution protocol, were similar to the allegations in
count I of this action.2 Id. at 500. Whitaker held that “The lack of a cognizable
liberty interest is fatal to the due process claim,” citing Sepulvado v. Jindal, 729 F.3d
413, 420 (5th Cir. 2013).3 Whitaker at 500. Whitaker argued there had been recent
developments in the law, including “in the lethal injection landscape nationally,”
which required the court to reconsider its position taken in Sepulvado. Id. The court
of appeals disagreed, and noted that Glossip v. Gross, 576 U.S. 863 (2015), (a
decision which was the result of an earlier trip to the Supreme Court in this action,
when a different protocol was in place in Oklahoma), did not address due process
questions regarding execution protocols. Id.
Plaintiffs argue that Whitaker is not precedential within this circuit. True
enough, but that fact does not keep this court from agreeing with it.
Plaintiffs also cite Ingraham v Wright, 430 U.S. 651 (1977), and Mullane v.
Central Hanover Bank & Trust Co., 339 US. 306 (1950). They cite Ingraham for
the proposition that liberty interests are implicated when the government plans to

2

The same counts also alleged a violation of plaintiffs’ liberty interest under the Eighth
Amendment. The court rejected the eighth amendment claim, quoting Whitaker v. Livingston,
732 F.3d 465, 467 (5th Cir. 2013), which stated that “[W]e know of no case, in the context of
executions, in which the Supreme Court has found a liberty interest to exist, based on the contours
of the Eighth Amendment, that goes beyond what that amendment itself protects.” Whitaker, 862
F.3d at 500.
3

In Sepulvado, the district court had determined that Sepulvado was likely to prevail on his claim
that the Due Process Clause of the Fourteenth Amendment entitled him to prompt and detailed
disclosure of Louisiana’s most recent execution protocol. The Fifth Circuit Court of Appeals
reversed, stating that “no appellate court has recognized the due-process claim on which the district
court a quo granted relief; we decline to be the first.” Sepulvado, 729 F.3d at 419.

5

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inflict appreciable physical pain.4 They cite Mullane for the proposition that the
fundamental requisite of due process is the opportunity to be heard, and that this
requirement has little worth unless one is informed that the matter is pending.5 The
general principles established by Ingraham and Mullane are duly noted. But neither
decision involves challenges to an execution protocol.
Plaintiffs also cite Oken v. Sizer, 321 F. Supp. 2d 658 (D. Md. 2004), a
decision which does address due process rights in the context of challenges to an
execution protocol. In Oken, the district court found that due process required Oken
to have an opportunity to receive notice about how his rights would be affected, as
well as an opportunity to respond and be heard regarding changes to Maryland’s
execution protocol. Id. at 665. The district court granted Oken a stay of execution,
ordering defendants to provide him with a complete copy of the state’s amended
execution protocol, and it set a briefing schedule. Id. at 668. The district court’s
stay order was entered on June 14, 2004. Two days later, on June 16, 2004, the
Supreme Court vacated the stay without discussion. Sizer v. Oken, 542 U.S. 916
(2004).

Given this history, Oken v. Sizer provides no support for plaintiffs’

argument that count I states a viable due process claim under the Fourteenth

4

Ingraham involved the due process rights of junior high school students who argued they had
been subjected to disciplinary corporal punishment in violation of their constitutional rights. The
Court wrote that “[A]t least where school authorities, acting under color of state law, deliberately
decide to punish a child for misconduct by restraining the child and inflicting appreciable physical
pain, we hold that Fourteenth Amendment liberty interests are implicated.” 430 U.S. at 674. In a
discussion of the Eighth Amendment, the Court noted that “The prisoner and the schoolchild stand
in wholly different circumstances, separated by the harsh facts of criminal conviction and
incarceration.” Id. at 669.
5

Mullane held that statutory notice by newspaper publication was an insufficient basis for
depriving known persons, whose whereabouts were also known, of substantial property rights and
was incompatible with the Fourteenth Amendment. 339 U.S. at 320.

6

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Amendment. And see, Sepulvado, 729 F.3d at 418 (noting the Supreme Court
“swiftly and summarily” vacated the stay in Oken).
All of that said, the court is aware that it let a fourteenth amendment claim
which was similar to count I survive at an earlier stage. On December 12, 2014, the
court denied a motion to dismiss a fourteenth amendment due process claim which
was alleged in an earlier iteration of the complaint. Doc. no. 155, pp. 5-86 (order of
December 12, 2014). At that time, the court faced an extremely compressed timetable. Plaintiffs Warner, Glossip, Grant and Cole were scheduled for execution on
dates beginning on January 15, 2015 and ending on March 5, 2015. Doc. no. 71. It
therefore made sense to permit the parties to address the legal and factual issues,
with as much finality as the circumstances would permit, at a single hearing—
namely, at the preliminary injunction hearing which was held in late December,
2014.7 No similar time constraints apply now. Moreover, given the shotgun nature
of the current version of the complaint (which includes ten counts, many of which
cite more than one amendment or law in support), and given the Supreme Court’s
recent and unequivocal signals in execution protocol cases (see discussion of count
III, below), it is prudent to go ahead and dismiss challenged claims that are not
plausible as a matter of law.
In summary, count I lacks support in the law. It fails under the Due Process
Clause of the Fifth Amendment, which reaches only federal actors. And it fails,
construed as a claim brought under the Due Process Clause of the Fourteenth
Amendment. There are no reasons to postpone dismissal. Count I will be dismissed.

6

This order cites documents by their original (not ecf) page numbers.

7

The preliminary injunction hearing was on December 17-19 and 22. The court issued its order
denying relief on December 22, 2014. Doc. nos. 170, 172, 173.

7

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Count III
Count III alleges that Oklahoma’s execution protocol constitutes deliberate
indifference to the serious medical needs of the plaintiffs, in violation of the Eighth
and Fifth Amendments of the United States Constitution. Defendants challenge
count III in its entirety. Plaintiffs defend count III with no mention of the Fifth
Amendment, citing only the Eighth Amendment.8
The Supreme Court’s recent decisions establish the eighth amendment
standards which must be met by an inmate who challenges an execution protocol.
Barr v. Lee, ___ U.S. ___, 2020 WL 3964985 (July 14, 2020), involved an eighth
amendment challenge by federal death-row inmates to a federal, single-drug lethal
injection protocol. The Court vacated the preliminary injunction so that plaintiffs’
executions could proceed as planned. It did so because plaintiffs had not made the
showing required to justify last-minute intervention by a federal court, based on the
standard set out in Bucklew v. Precythe, ___ U.S. ___, 139 S. Ct. 1112 (2019). Barr
at *2. Bucklew, in turn, cites Glossip v. Gross, 576 U.S. 863 (2015), and Baze v.
Rees, 553 U.S. 35 (2008), for the applicable standard. Bucklew, 139 S. Ct. at 1125.
Bucklew states that “where…the question in dispute is whether the State’s chosen
method of execution cruelly superadds pain to the death sentence, a prisoner must
show a feasible and readily implemented alternative method of execution that would
significantly reduce a substantial risk of severe pain and that the State has refused to
adopt [that alternative method] without legitimate penological reason.” Id. As

8

As previously noted, count III relies, in part, on the Due Process Clause of the Fifth Amendment.
Doc. no. 325, ¶¶129 (referring to substantive due process), 133 (Fifth Amendment). Defendants’
brief points out that the Due Process Clause of the Fifth Amendment does not apply to state actors.
Doc. no. 333, p.3, n.1. Plaintiffs do not argue otherwise, nor do they ask for leave to amend count
III to bring it under the Fourteenth Amendment. Plaintiffs choose, instead, to defend count III
under the Eighth Amendment. In these circumstances, the court finds that plaintiffs have conceded
dismissal of count III to the extent this count rests upon the Due Process Clause of either the Fifth
or the Fourteenth Amendment.

8

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observed in Bucklew, the Court’s decisions in Glossip and Baze “left no doubt that
this standard governs ‘all Eighth Amendment method-of-execution claims.’ ” Id.,
quoting Glossip at 867.
These decisions set the standard by which an eighth amendment challenge to
a method of execution must be evaluated—a standard which says nothing about
deliberate indifference. In addition, this court agrees with the following statement
in Jackson v Danberg, 594 F.3d 210, 223 at n.16 (3d Cir. 2010).
While Baze captured some of the language in Helling9 and
Farmer,10 importantly, it did not import the ‘deliberate
indifference’ language used in those cases. The fact that
Baze took such pains to extract certain language from
Helling and Farmer suggests that the other standards
announced in those cases do not govern Eighth
Amendment method-of-execution challenges.
That
distinction makes sense, as the Supreme Court’s Eighth
Amendment conditions-of-confinement cases and
method-of-execution cases have separate lineages in the
Court’s jurisprudence.
Finally with respect to count III, the court notes that plaintiffs, in their defense
of this deliberate indifference count, rely on a long list of alleged problems with
Oklahoma’s execution protocol.11 In the view of this court, the Eighth Amendment

9

Helling v. McKinney, 509 U.S. 25 (1993).

10

Farmer v. Brennan, 511 U.S. 825 (1994).

11

As argued by the plaintiffs, alleged issues with the protocol include but are not limited to: issues
with consciousness checks; issues with compounded drugs regarding standards of purity and
potency, and the failure to explain how drugs intended for use have been or will be compounded;
issues with training including omission of details that would provide for more consistent and
effective training; issues with IV access and maintenance; issues with documentation and drug
verification, such as the failure to require adequate documentation that the actual steps taken are
correctly recorded, the failure to require that drug purchases be recorded in writing, and giving
prisoners only ten days’ notice of the drug selection; issues with transparency, oversight and
review; and issues with the defendant’s right to counsel throughout the procedure. Doc. no. 343,
pp. 8-10.

9

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does not permit the plaintiffs, nor does it require the court, to fly-speck a state’s
execution protocol to determine whether it covers everything it could conceivably
cover.
Plaintiffs have conceded the portion of count III that depends upon the Fifth
Amendment’s Due Process Clause, and deliberate indifference in violation of the
Eighth Amendment is not a plausible legal theory by which to challenge Oklahoma’s
execution protocol. Count III will be dismissed.
Count VIII
Count VIII is brought under the First and Ninth12 Amendments to the United
States Constitution, and also under certain federal statutes.13 The gist of count VIII
is that plaintiffs’ religious beliefs against suicide, which are protected by the First
Amendment, are impinged upon by the Court’s requirement that plaintiffs plead (and
ultimately prove) a feasible and readily implemented alternative method of
execution that would significantly reduce a substantial risk of severe pain, which the
state has refused to adopt without a legitimate penological reason. This legal theory
is foreclosed by the standards set forth in Glossip and Bucklew, and count VIII will
therefore be dismissed.
Former Defendants Evans, Parker and Williams
Lastly, defendants ask the court to dismiss three persons who were formerly
named as defendants in this action. The defendants in question are: Edward Evans
in his official capacity as Associate Director of Field Operations, David Parker in

12

The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.”

13

The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb-1 et seq., and the
Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §2000cc et
seq.

10

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his official capacity as Division Manager of East Institutions and as Commander of
the Command Team, and Greg Williams in his official capacity as Division
Manager of West Institutions.14 These defendants are no longer named in the
complaint, nor does the complaint include any allegations specific to them. In these
circumstances, the complaint necessarily fails to state a claim against these persons.
In addition, plaintiffs confirm that Evans, Parker and Williams are no longer parties.
Doc. no. 343, p. 13, n.4. Plaintiffs raise no objections and propose no conditions
(such as dismissal without prejudice) to the dismissal of these former defendants.
With there being no objection, these defendants will be dismissed.
Conclusion
After careful consideration, defendants’ motion to dismiss is GRANTED.
Counts I, III and VIII are DISMISSED under Rule 12(b)(6). Edward Evans, David
Parker and Greg Williams, all of whom were previously named as defendants in their
official capacities, are likewise DISMISSED under Rule 12(b)(6). All dismissals
are with prejudice, and without leave to amend.
IT IS SO ORDERED this 15th day of September, 2020.

14-0665p077.docx

14

See, second amended complaint, doc. no. 215, ¶¶ 17-19.

11