Warner et al v. Gross et al

Filing 449

ORDER granting in part and denying in part 388 Defendants' Motion for Summary Judgment (as fully set out in this order). Signed by Honorable Stephen P. Friot on 8/11/2021. (llg)

Case 5:14-cv-00665-F Document 449 Filed 08/11/21 Page 1 of 43

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

Case No. CIV-14-0665-F

ORDER
Before the court is defendants’ motion for summary judgment, doc. no. 388.
By this order, the motion is granted in part and denied in part.
This action challenges Oklahoma’s execution protocol under the United States
Constitution, the Oklahoma Constitution and other laws. It is brought by inmates
who have been sentenced to death by the State of Oklahoma. Defendants are state
actors, sued in their official capacities only, who are charged with carrying out the
death sentences. The case has already been before the Supreme Court, but that was
at the preliminary injunction stage and involved an earlier version of Oklahoma’s
lethal injection protocol. On October 16, 2015, a few months after the Supreme
Court’s ruling on June 29, 2015 affirming denial of plaintiffs’ motion to
preliminarily enjoin executions, this action was administratively closed, by
agreement, for an indefinite period. The purpose of the closure was to permit the
state to investigate and amend its execution procedures. This action was reopened
on March 19, 2020. On July 6, 2020, a Third Amended Complaint was filed,
challenging the state’s new protocol.

Certain counts of the Third Amended

Complaint were dismissed by the court on a motion to dismiss. The remaining

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counts are challenged by the motion for summary judgment which is now before the
court.
A. Procedural History
Including doc. no. 392, which was stricken, and doc. no. 397, which is moot
because it replied to doc. no. 392, the motion for summary judgment resulted in the
following filings:
Date filed

Filed by

Name of Document

2-19-21

Doc.
No.
388

Defendants

3-19-21

392

Plaintiffs

3-26-21

397

Defendants

5-7-21

422

Defendants

5-14-21

425

Plaintiffs

5-27-21

433

Defendants

Defendants’ Motion for Summary Judgment and
Brief in Support
Opposition of plaintiffs (other than Wade Lay) to
Defendants’ Summary Judgment Motion (stricken,1
along with doc. nos. 393 and 394)
Reply in Support of Defendants’ Motion for
Summary Judgment (superseded by doc. no. 433)
Defendants’ Supplemental Brief in Support of Their
Motion for Summary Judgment
Opposition of Plaintiffs (other than Wade Lay) to
Defendants’ Summary Judgment Motion
Reply in Support of Defendants’ Motion for
Summary Judgment

B. Plaintiffs’ Claims
In their Third Amended Complaint, doc. no. 325, filed on July 6, 2020,
plaintiffs asserted the following claims:
Count I
Count II

Fifth2 Amendment Due Process claim based on asserted failure to disclose
sufficient information re: development of the protocol and execution procedures.
Dismissed per order at doc. no. 349.
Eighth Amendment claim asserting that constitutionally impermissible pain and
suffering will result from the use of the three-drug lethal injection protocol
(midazolam, vecuronium bromide and potassium chloride).

1

Doc. no. 392 was stricken as a result of plaintiffs’ failure to comply with LCvR56.1. The court
chose to strike that response rather than taking as true the defendants’ statement of uncontroverted
facts. See, Order, doc. no. 401.
2
As was noted at an earlier stage of this action, the Fifth Amendment does not apply to the
defendants in this case. Doc. no. 349, at 4 (Count I construed as asserted under the Fourteenth
Amendment).

2

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Count III
Count IV
Count V
Count VI
Count VII
Count VIII
Count IX
Count X

Eighth and Fifth3 Amendment claim asserting “deliberate indifference” to the
serious medical needs of the plaintiffs. Dismissed per order at doc. no. 349.
First, Fifth4 and Sixth Amendment claim asserting unconstitutional denial of
access to counsel and the courts.
18 U.S.C. § 3599 claim asserting intentional deprivation of right to counsel.
Ex Post Facto claim under U.S. and Oklahoma Constitutions, based on
substitution of midazolam.
Fourteenth Amendment Due Process claim based on use of midazolam instead of
barbiturate.
Religious freedom claim asserting violation of plaintiffs’ sincerely-held religious
beliefs resulting from necessity of proposing a feasible alternative method of
execution. Dismissed per order at doc. no. 349.
Eighth and Fourteenth Amendment claim asserting that plaintiffs will be subjected
to constitutionally impermissible human experimentation.
First and Fourteenth Amendment claim asserting denial of right of access to
governmental information.

C. Summary Judgment Standard
Under Rule 56, Fed. R. Civ. P., summary judgment shall be granted if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). A genuine issue of material fact exists when “there is sufficient evidence
favoring the non-moving party for a jury to return a verdict for that party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In determining whether a genuine
issue of a material fact exists, the evidence is to be taken in the light most favorable
to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).
All reasonable inferences to be drawn from the undisputed facts are to be determined
in a light most favorable to the non-movant. United States v. Agri Services, Inc., 81
F.3d 1002, 1005 (10th Cir. 1996). Once the moving party has met its burden, the
opposing party must come forward with specific evidence, not mere allegations or
denials, demonstrating that there is a genuine issue for trial. Posey v. Skyline Corp.,
702 F.2d 102, 105 (7th Cir. 1983).
3

See note 2. Plaintiffs elected not to persist with their Fifth Amendment Due Process claim. Doc.
no. 349, at 8.
4
See note 2.

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D. The Motion Will Be Granted in Part and Denied in Part as to Count II
The heart of plaintiffs’ case is Count II, their direct Eighth Amendment
challenge to the lethal injection protocol adopted by the State of Oklahoma on
February 20, 2020.5 The protocol includes three alternatives for execution by lethal
injection, as set forth in Chart A, Chart B and Chart D (Chart C is reserved). Chart
A contemplates completion of the execution with a single dose of pentobarbital.
Similarly, Chart B specifies a single dose of sodium pentothal. Those two drugs
have been used successfully in numerous executions, but “a practical obstacle soon
emerged, as anti-death-penalty advocates pressured pharmaceutical companies to
refuse to supply the drugs used to carry out death sentences.” Glossip v. Gross, 576
U.S. 863, 869-70 (2015) (this case at earlier stage). Consequently, Chart D of the
Oklahoma protocol provides for sequential use of three readily-available drugs,
midazolam, vecuronium bromide (a paralytic) and potassium chloride (to induce
cardiac arrest). The actual effect of midazolam is hotly contested in this action, as
it has been in other cases in other courts.
Plaintiffs’ principal claim is that midazolam cannot be relied upon to render
the prisoner undergoing execution by lethal injection insensate to pain, with the
result that execution using Chart D of the protocol will subject the prisoner to a
constitutionally unacceptable risk of severe pain and suffering as the lethal injection
process proceeds. Plaintiffs also challenge other features of the protocol, including,
prominently, the adequacy of the provision for a consciousness check to be
performed after the midazolam is injected but before the second two drugs are

5

All references to the February 20, 2020 protocol (entitled: Execution of Inmates Sentenced to
Death) are to that document as it appears in the record as Exhibit 1 to defendants’ motion, doc. no.
388-1. For brevity, the document (including attachments) will simply be referred to in this order
as “the protocol,” and references to pages will be to the relevant page of the document at doc. no.
388-1, without further citation to the subsection of the protocol or to the ECF docket entry.

4

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pushed. Defendants, for their part, maintain that lethal injection using the Chart D
combination of drugs, implemented with the benefit of other safeguards written into
the protocol, clears the Eighth Amendment bar. The court has concluded, on Count
II, that defendants are entitled to judgment as a matter of law under Rule 56 as to six
of the thirty-two plaintiffs but that summary judgment should be denied as to the
others.
___________________________________________
As Justice Gorsuch wrote two years ago, “the Eighth Amendment does not
guarantee a prisoner a painless death–something that, of course, isn’t guaranteed to
many people, including most victims of capital crimes.” Bucklew v. Precythe¸ 139
S.Ct. 1112, 1124 (2019). Also worthy of note is the fact that the Supreme Court
“has yet to hold that a State’s method of execution qualifies as cruel and unusual,”
id., and that the deference that is due a state’s choice of execution procedures means
that courts, in method-of-execution challenges, do not sit as “boards of inquiry
charged with determining ‘best practices’ for executions.” Bucklew, 1125, quoting
from Baze v. Rees, 553 U.S. 35 (2008). The case at bar has already been to the
Supreme Court and back, all on the issue of the constitutionality of a midazolam
lethal injection protocol, but that was at the preliminary injunction stage. The matter
is now before the court for final adjudication, by way of summary judgment or trial,
based on a new protocol.
1. The substantive standards applicable to Count II
The Eighth Amendment standards applicable in this case were articulated by
the Supreme Court in Baze, in this case (Glossip, 576 U.S. 863), and in Bucklew.
Those decisions will be discussed here only to the extent necessary (i) to explain
why summary judgment on the Eighth Amendment claim will be granted as to some
plaintiffs but denied as to others, and (ii) to define the issues remaining for trial.

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Defendants argue, in substance, that a successful lethal injection challenge
must satisfy both prongs of a two-prong test, as first articulated in Baze and
emphatically confirmed (over equally emphatic dissents) in Glossip. That is correct
as far as it goes, but, importantly, the two prongs are not wholly independent of each
other; there is some overlap. Specifically, if there is a fact issue precluding summary
judgment for defendants on one of the two prongs, that fact issue may well (and apart
from other obstacles to summary judgment) preclude summary judgment on the
other. This is because, as discussed below, the question of whether the prisoner has
made his case under the first prong (which hinges on whether the state’s method
presents a substantial risk of severe pain) is to be determined, at least in part, by
looking at how attractive the prisoner’s proffered alternative is when compared to
the state’s chosen method (the second prong). Thus, where the prisoner, as the
non-moving party, enjoys the benefit of all factual inferences reasonably supported
by the record, the prisoner is in an advantageous position–again, for summary
judgment purposes–if he can raise a triable fact issue as to a proffered method that
might be more than “slightly or marginally safer,” Glossip at 877, than the state’s
proposed method.6
First Prong. In Bucklew, the court, summarizing its decisions in Baze and
Glossip, held that the prisoner who challenges the state’s method of execution must
show that the state’s method presents “a substantial risk of severe pain.” Bucklew¸
at 1125. A method of execution that presents a “substantial risk” is one that “is sure
or very likely to cause serious illness and needless suffering.” Glossip, 877 (quoting
from Baze, emphasis in original).

6

It goes without saying, but is nonetheless worth mentioning, that, at trial, the prisoner, having the
burden of proof, does not have that advantage.

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The risk presented by the state’s method is not assessed in the abstract or on
an absolute scale. To the contrary, the court’s task “is a necessarily comparative
exercise.” Bucklew, 1126 (emphasis in original). Thus, the prisoner must show that
“the risk is substantial when compared to the known and available alternatives.”
Glossip, 878 (internal quotation omitted). This is where the second prong comes in.
Second Prong. It is clear from Bucklew (again summarizing Baze and
Glossip) that the alternative method of execution the prisoner is obliged to propose
must be “feasible and readily implemented,” and it must be one that “the State has
refused to adopt without a legitimate penological reason.” To be considered at all,
the prisoner’s proposal must be “sufficiently detailed to permit a finding that the
State could carry it out ‘relatively easily and reasonably quickly.’” Bucklew, at
1125, 1129. And the “mere fact that a method of execution might result in some
unintended side effects does not amount to an Eighth Amendment violation.”
Glossip, 882, n. 3. Although states, of necessity, are free to use previously untried
methods, it is quite unlikely that an untried method will pass muster as the prisoner’s
proposed alternative: “[C]hoosing not to be the first to experiment with a new
method of execution is a legitimate reason to reject it.” Bucklew, 1130.
The proposed alternative need not be one “presently authorized by” state law.
Bucklew¸1128. Thus, the prisoner “may point to a well-established protocol in
another State as a potentially viable option.” Id. But it is not enough to argue for “a
slightly or marginally safer alternative.” Glossip, 877 (quoting from Baze). The
“difference [in risk] must be clear and considerable.” Bucklew, 1130. That said, in
a passage that has a natural tendency to accentuate the importance of the first prong
(degree of risk and severity of pain), the Court, in Bucklew, observed that “we see
little likelihood that an inmate facing a serious risk of pain will be unable to identify
an available alternative—assuming, of course, that the inmate is more interested in
avoiding unnecessary pain than in delaying his execution.” Id. at 1128-29. (As is
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discussed below in Part 3, this passage also drives home the point that the “available
alternative” that the prisoner must “identify” is to be proffered by the prisoner for
use in carrying out his death sentence, and not for the purpose of setting up another
round of Eighth Amendment litigation.)
As has been seen, the court’s reckoning of whether the state’s proposed
method presents a constitutionally unacceptable risk of severe pain is, in large part,
the product of a comparison of the risk and pain inherent in the state’s method with
the risk and pain inherent in the defendant’s proffered alternative method of
execution. When the state moves for judgment as a matter of law, any of the
proffered alternatives (Glossip second prong) that cannot be eliminated as a matter
of law become players in the competition against the state’s chosen method. The
court then determines (bearing in mind this is under Rule 56) whether the state has
demonstrated as a matter of law that the prisoner cannot prevail on the first prong–
the key question being whether “the risk of pain associated with the State’s method
is ‘substantial when compared to a known and available alternative.’” Bucklew,
1125 (quoting from Glossip at 878).
2. Summary judgment denied – first prong
Some basic facts–such as what Oklahoma’s new execution protocol actually
says–are not in dispute. And, as is made plain elsewhere in this order, the facts that
compel summary judgment on all of plaintiffs’ remaining claims other than Count
II are not in dispute. But, as to Count II, plaintiffs’ direct Eighth Amendment
challenge to the new protocol, fact issues preclude summary judgment in favor of
the defendants as to those plaintiffs who have, as they must, designated at least one
alternative means of carrying out their own sentence of death. The factual disputes
arise mostly, if not entirely, from conflicts in the expert testimony and the inferences
to be drawn from that testimony. That aspect of the matter–the battle of the experts–
is addressed below. It suffices to say at this point that defendants’ motion is
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essentially an invitation to the court to try this case on the papers before it. For the
reasons set forth below, the court declines to do so.
A survey of defendants’ basic contentions and of plaintiffs’ responses thereto
will show why the court declines to enter summary judgment on Count II.
Defendants’ arguments for summary judgment on Count II are advanced on pp.
23-32 of defendants’ summary judgment brief, doc. no. 388. Those arguments and
plaintiffs’ responses will be summarized here.7
Defendants first argue, correctly, that the Supreme Court has already spoken
positively–in this case, no less–of the use of midazolam in a lethal injection protocol
and that, post-Glossip, other states have used a 500 milligram midazolam protocol
without incident.

As will be seen, this argument provides the backdrop for

defendants’ more specific contentions as to the efficacy of midazolam when used as
they propose to use it. The Supreme Court’s observation about the successful use of
midazolam for execution purposes should not (and will not) be taken lightly, but that
comment was made at the preliminary injunction stage of this case. The Court of
Appeals has made it clear (as is plain from the text of Rule 65) that a preliminary
injunction hearing is just that–preliminary–and that any resulting adjudications are
equally preliminary. Sec. & Exch. Comm'n v. Pearson, 426 F.2d 1339, 1344 (10th
Cir. 1970). As for the present state of the record with respect to midazolam,
plaintiffs cite and quote from the report of one of their experts8 to the effect that
7

To avoid encumbering this order with excessive (and needless) citations to the record, it suffices
to say that all of the defendants’ arguments relating to the Glossip first prong are to be found at
pp. 23-32 of their brief and all of plaintiffs’ arguments in response are at pp. 28-37 of their brief
in opposition, doc. no. 425. This order will cite specific pages in those sections of the briefs only
as necessary for clarity.
8

The papers before the court on summary judgment do not, in terms, challenge the qualifications
of any of the parties’ experts. The deadline for Daubert motions was February 26, 2021. Doc. no.
350. None were filed. (At an earlier stage of this case, the court urged counsel on both sides to

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midazolam “cannot reliably render the prisoner insensate to the terror of chemical
suffocation from the second drug (vecuronium bromide) or the pain of being burned
alive from the inside from the third drug (potassium chloride).” (Quoting from doc.
no. 388-4, at 31.) There is a fact issue as to whether midazolam performs as well,
for execution purposes, as defendants claim it does.
Next, defendants advance more specific arguments as to the effect of
midazolam. These arguments go to the actual effect of midazolam on the prisoner’s
ability to feel pain during the lethal injection process. On this point, the court notes,
preliminarily, that defendants use some loose terminology, leaving the court
uncertain as to what, exactly, they contend midazolam will actually accomplish
when used as specified in the protocol. Defendants first argue that a 500 milligram
dose of midazolam will induce “general anesthesia.”

Doc. no. 388, at 24.

Defendants next address the matter in terms of “deep sedation.” Id. at 26. Still later,
they talk about “midazolam’s ability to produce unconsciousness.” Id. at 27. But
when discussing the effect of injection of the second drug (vecuronium bromide),
they revert to the “deeply sedated” frame of reference for midazolam. Id. at 30.
In response, plaintiffs take a slightly different tack. They argue, with backing
from one of their experts, that the duration of midazolam’s effect is the problem,
because it is not enough for midazolam simply to induce anesthesia, the point being
that (per plaintiffs' theory of the case) the prisoner is subjected to the possibility of
a sequence of painful episodes as the execution unfolds (first, the sense of
suffocation resulting from immediate onset of pulmonary edema, next the sense of
chemical suffocation resulting from the injection of vecuronium bromide, and finally
the burning sensation resulting from the injection of the potassium chloride). Thus,
plaintiffs say, simply inducing anesthesia will not suffice. Anesthesia must be
carefully consider whether, under all the circumstances in this nonjury case, Daubert motions are
really necessary.)

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maintained, which one of their experts says midazolam will not do: “[E]ven if
anesthesia is successfully induced using only midazolam, a subject will not remain
in an insensate and anesthetic state after they are subjected to even mild pain
stimuli.” Report at doc. no. 388-5, p. 38, ¶ 93 (citing an article in a professional
publication). There is a fact issue as to whether midazolam will reliably render the
prisoner insensate to pain–however the required level of suppression of
consciousness might be expressed–for the length of time necessary to avoid a
constitutionally unacceptable risk that the prisoner will be subjected to a
constitutionally unacceptable level of pain.
Defendants next argue that the existence of midazolam’s purported “ceiling
effect” (broadly speaking, a tendency of the drug’s potency to level off even as the
dosage increases) has not been supported by scientific data supporting a contention
that the ceiling effect kicks in before the midazolam can serve its purpose.9 The
significance of this contention is that if the ceiling effect does keep midazolam from
reliably performing as intended during the lethal injection process, that raises a
serious question as to whether the protocol can pass constitutional muster (or, at a
minimum, significantly complicates the matter). The ceiling effect has been litigated
in a dozen or more courtrooms around the country, but it has not been litigated with
finality in this case. On that score, the plaintiffs have proffered the expert report of
a board-certified anesthesiologist attesting to the ceiling effect (with support from
several published sources in the field). To be sure, the up or down question of the
existence of the ceiling effect is the beginning, not the end, of the analysis, but the

9

Not necessary to address in this order is the question of whether the ceiling effect, if it exists, is
likely to come into play at a dosage of 500 milligrams or less, or otherwise at a level that would
call into question the efficacy of midazolam when used for the purpose of completing an execution
per the protocol.

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materials in the record get the plaintiffs far enough down that road to avoid a
definitive determination on that issue at this stage.
Defendants also engage directly with plaintiffs on a range of issues relating to
plaintiffs’ contention that midazolam induces pulmonary edema and does so in a
way that causes the prisoner to experience what plaintiffs characterize as an
intolerable sensation of asphyxiation, equivalent to a botched hanging. Defendants’
overarching argument is that “[p]laintiffs have failed to prove that any ‘flash
pulmonary edema’ after injection of midazolam will cause unconstitutional levels of
pain.” Doc. no. 388, at 27. Elaborating on this point, defendants argue that
“[p]laintiffs cannot on the record evidence prove a sure or very likely risk of severe
pain [resulting from pulmonary edema].” Id. at 28. The problem is that, at this stage,
plaintiffs do not have to “prove” anything. Although courts sometimes, on summary
judgment, speak in terms of what the non-movant has proven or failed to “prove” or
“show” or “establish,” the lower bar at this stage is the question of whether plaintiffs
have demonstrated the existence of a genuine issue of material fact. E.g., Goodwin
v. General Motors Corporation, 275 F.3d 1005, 1011 at n.7 (10th Cir. 2002), cert.
denied, 537 U.S. 941 (2002). As for pulmonary edema, the parties are at odds,
backed by experts, on a range of issues, such as (i) its prevalence as a consequence
of administration of midazolam, (ii) how soon it sets in after the midazolam is
pushed, (iii) how long it lasts, (iv) whether it is likely to occur while the prisoner
remains conscious, (v) what the prisoner feels if pulmonary edema actually does
occur in any given instance, and (vi) whether pulmonary edema, if experienced by a

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sensate prisoner, would be more painful than hanging (which defendants appear to
posit as a benchmark for determination of constitutionally permissible pain).10
Moving to the second and third drugs specified in the protocol, defendants
argue that plaintiffs have “failed to prove” that injection of vecuronium bromide or
potassium chloride “will cause unconstitutional pain.” Doc. no. 388, at 30, 31. This
issue is distinct from the question of whether the midazolam injection causes the
immediate onset of pulmonary edema, with a resultant sense of suffocation, before
the second two drugs are pushed. On the question of the effect of the administration
of the second two drugs, and despite defendants’ inapt framing of the issue (plaintiffs
have “failed to prove”), it is tempting to rule for defendants as a matter of law under
Rule 56 (g). Defendants’ main argument as to the pain that may result from
administration of these drugs is that the prisoner will have been rendered
unconscious by the time these last two drugs are pushed. Plaintiffs’ response, as to
both drugs, is that they will cause a constitutionally intolerable level of pain in a
sensate person. But, under the protocol, authorization to administer the second two
drugs is expressly made conditional; they are be administered only if it is “confirmed
the inmate is unconscious.” Protocol, p. 44.
In the protocol that passed muster in Baze, the consciousness check required
after the administration of the first drug (in that case, sodium thiopental) and before
administration of the second two drugs (pancuronium bromide and potassium
chloride) was performed “by the warden and deputy warden through visual
inspection.” Baze, 553 U.S. at 45. In Baze, as here, it was uncontested that
administration of the second two drugs would present “a substantial, constitutionally

10

In In re Ohio Execution Protocol Litig., 946 F.3d 287, 290 (6th Cir. 2019), cert. denied sub nom.
Henness v. DeWine, 141 S. Ct. 7 (2020), the Sixth Circuit appears to have adopted (much to the
consternation of Justice Sotomayor, 141 S. Ct. at 9) the pain associated with hanging as a
benchmark. This court makes no determination, at this stage, as to the merits of that approach.

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unacceptable risk of suffocation” if the first drug failed to perform as intended. Id.
at 53. In Baze, as here, the consciousness check after administration of the first drug
was important to the Court. But the Court’s assessment of the Kentucky protocol
led it to the conclusion that the prisoners “have not shown that the risk of an
inadequate dose of the first drug is substantial.” Id. at 54. Analytically, the Court’s
focus, in Baze, on the risk presented by an inadequate dose of thiopental is equivalent
to the risk, under the Oklahoma protocol, that midazolam will not render the prisoner
insensate before the second two drugs are pushed, with the result that the prisoner is
subjected to a constitutionally unacceptable level of pain and suffering.
In Baze, the Court concluded that the Kentucky protocol (including, as
relevant here, the consciousness check accomplished via visual inspection by the
warden and deputy warden) mitigated that risk to the extent required by the Eighth
Amendment. It is tempting to conclude that Oklahoma’s protocol does the same.
But in the case at bar, the prisoners squarely attack the warden’s unfettered discretion
to deviate from the protocol, as well as–among other things–the adequacy of the
consciousness check specified in the protocol.

The consciousness check is

unmistakably a central consideration in the Supreme Court’s lethal injection
jurisprudence. Thus, even acknowledging the necessity of discretion to deviate from
the protocol in ways that would not materially increase the risk that has been the
focus of no less than three Supreme Court decisions in the last thirteen years, it is
passing strange that Oklahoma would write a protocol (knowing it would be looked
at under a microscope) which, read literally, gives the director discretion to water
down the consciousness check or wink at its results.11 On that score, the Supreme
11

In that same vein, the court notes that defendants assert, as an undisputed fact, that “IV Team
members must be either physicians, physician assistants, nurses, EMTs, paramedics, or militarily
trained medical personnel, and they must be certified or licensed in the United States.” Doc. no.

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Court recently reminded us, albeit in a different constitutional context, that a
provision for “entirely discretionary exceptions” to the operation of an otherwise
constitutional administrative scheme may be fatal to the constitutionality of that
scheme. Fulton v. City of Philadelphia, __ U.S. __, 141 S.Ct. 1868, 1878 (2021).
For these reasons, and because plaintiffs back up their attack on the protocol’s
safeguards with credible expert criticism,12 the court declines to rule, as a matter of
law, that plaintiffs’ case fails on the issue of whether, under the protocol taken as a
whole, the injection of the second two drugs presents a constitutionally unacceptable
risk of severe pain.13
388, at 1 (citing protocol p. 6). Since the consciousness check is to be performed by the IV Team
Leader, Protocol, p. 43, “using all necessary and medically-appropriate methods,” id., that very
reassuring specification of professional credentials would likely be a noteworthy upgrade from the
consciousness check performed “by the warden and deputy warden through visual inspection,”
which cleared the bar in in Baze, 553 U.S. at 45. The problem, again (as plaintiffs point out, doc.
no. 425, at 1), is that, under the protocol, the director retains unfettered discretion to eliminate the
requirement of professional medical credentials. Protocol, at 1. Although the evidence at trial
may (or may not) firm up the court’s confidence level as to the integrity with which the reserved
power to modify the protocol will work in practice, the reservation of unfettered power in the
director or his designee to modify the protocol, especially as to those provisions so strongly touted
by defendants, erodes the confidence the court ordinarily needs in order to adjudicate an issue
favorably to the movant as a matter of law.
12

See, doc. no. 388-5, at 56-77, which provides a detailed (and documented) critique of defendants’
protocol and related plans relating to the consciousness check. To be sure, the Supreme Court has
made it clear that this case cannot be about “best practices.” Bucklew, 1125. Thus, “an inmate
cannot succeed on an Eighth Amendment claim simply by showing one more step the State could
take as a failsafe for other, independently adequate measures. This approach would serve no
meaningful purpose and would frustrate the State's legitimate interest in carrying out a sentence of
death in a timely manner.” Baze, 60-61. The question at trial will be whether the defendants’
planned approach to ascertaining the prisoner’s state of consciousness is at least minimally
adequate to satisfy the Supreme Court’s requirements with respect to risk mitigation (e.g.,
avoidance of “a substantial risk of suffering,” id. at 60) in the comparative context the Court has
prescribed.
13

As a word to the wise, the parties would be well advised to be prepared, at trial, to present
evidence as to the actual track record of midazolam as used in executions over the last few years.
That evidence may go far to eliminate speculation as to whether midazolam does or does not
perform as intended when used as specified in the protocol. (Because, as will be discussed, six of

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Summary judgment will be denied on the issue of whether the protocol
satisfies the first prong of the Glossip test.
3. Summary judgment granted in part and denied in part – second prong
As to defendants’ attack on plaintiffs’ case under Glossip’s second prong,
three issues rise to the surface:
a. Are defendants entitled to judgment as a matter of law because of
plaintiffs’ purported reservation of the right to challenge the use of their
proffered alternative methods of execution?
b. Should defendants’ motion be granted as to those plaintiffs who have
declined to propose an alternative method? If so, should a Rule 54 (b) final
judgment be entered as to those plaintiffs?
c. As to the remaining plaintiffs, have defendants demonstrated as a matter
of law that none of the proffered alternatives are eligible to be in the
running for comparison with Oklahoma’s midazolam protocol?
______________________________________
a. Plaintiffs’ purported reservation of the right to challenge the use of their
proffered alternative methods of execution is of no legal effect but will
not result in summary judgment against them.
In the Third Amended Complaint (p. 47, ¶¶ 113, 114) and other documents,
plaintiffs have explicitly purported to reserve the right to challenge their proffered
alternative methods of execution. Defendants object to this, arguing in their motion
that, because of this reservation, Count II must fail as a matter of law. Doc. no. 388,
at 35.

In response, plaintiffs contend that “whether the alternative might be

considered constitutional when assessed against a proffered alternative to that
alternative . . . is a question for another day and not at issue here.” Doc. no. 425,
at 42 (emphasis added).

the plaintiffs in the case at bar have declined to proffer an alternative method of execution, there
may well be a track record under Chart D of the new Oklahoma protocol by the time this case is
called for trial as to the other twenty-six plaintiffs.)

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This reservation is, as a legal matter, wholly untenable. The Supreme Court
has made it unmistakably clear that method-of-execution litigation is not an iterative
process. The Court was careful to note, in Bucklew, that “Glossip expressly held
that identifying an available alternative is ‘a requirement of all Eighth Amendment
method-of-execution claims’ alleging cruel pain.” Bucklew, 1126 (emphasis in
original).

Thus, it is unsurprising that, in Bucklew, the Court described the

prisoner’s failure to identify an alternative as a “dispositive shortcoming.” Bucklew,
1121. This was foreshadowed in Baze, where the Court quite understandably
expressed its distaste for an approach in which “each ruling [is] supplanted by
another round of litigation touting a new and improved methodology.” Baze¸ 51.
(And in Bucklew, aside from stating that the prisoner’s failure to identify an
alternative was a “dispositive shortcoming,” the Court noted that “[o]nly when the
district court warned that his continued refusal to abide this Court's precedents would
result in immediate dismissal did Mr. Bucklew finally point to [his proposed
alternative]. Bucklew, 1129.) See also, Brooks v. Warden, 810 F.3d 812, 822 (11th
Cir. 2016), cert. denied, 577 U.S. 1116 (2016) (prisoner not entitled to challenge the
constitutionality of his proposed alternative).

Consequently, plaintiffs’ lame

assertion that the constitutional permissibility of their proffered alternatives presents
“a question for another day,” is of no legal effect. The short of the matter is that the
Supreme Court, in requiring that the prisoner propose a “feasible and readily
implemented” alternative method of implementing the sentence of death (as laid
down in no less than three cases since 2008), was not doing so for the purpose of
giving license to additional rounds of litigation.
Plaintiffs’ reservation of the right to challenge their proposed alternatives puts
the court to a choice of either ignoring the reservation or entering judgment against
plaintiffs as a matter of law. The court chooses to ignore the purported reservation.
At least pending trial, the court will give plaintiffs the benefit of the literal import of
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their supplemental responses to defendants’ interrogatories. Those supplemental
responses intimate no reservation of a right to challenge a proffered alternative. That
said, if it should appear at trial that any of the plaintiffs actually do reserve the right
to challenge their proposed alternatives, that will be fatal.
b. The motion will be granted as to those plaintiffs who have declined to
propose an alternative method of carrying out their sentence of death.
The following table shows the array of responses (and some nonresponses) to
Interrogatory No. 15, which required (as enforced by the court) each plaintiff to
identify which of the pled alternative methods of execution he proposes for use in
his case:
Plaintiffs’ Proposed Alternative Methods of Execution14
Plaintiff

Andrew
Bush
Cannon
Coddington
Cole
Cuesta-Rodriguez
Eizember
Fairchild
Glossip
Goode
Grant, D.
Grant, J.*
Grissom
Hancock

FDAapproved
pentobarbital
or sodium
thiopental

Compounded
pentobarbital
or sodium
thiopental

Midazolam
plus pre-dose
of anesthetic

Firing squad

Declined

X
X
X
X
X
X
X
X
X
X

X
X
X
X
X
X

X
X
X
X

X
X
X
X

X

X
X
X

X
X

X
X

X

14

X
X

The third amended complaint was brought by the thirty-five plaintiffs, listed in the first
paragraph of that pleading. Doc. no. 325, ¶ 1. Of those thirty-five, three have been terminated as
plaintiffs in this action, leaving, as of the date of this order, the thirty-two plaintiffs identified in
the chart. Nicholas A. Davis died on April 7, 2021 and was termed on April 13, 2021. See, doc.
no. 406 (suggestion of death). On May 10, 2021, Patrick Murphy was dismissed for lack of subject
matter jurisdiction, and termed, after his conviction was vacated. See, Doc. no. 424 (order granting
defendants’ unopposed motion to dismiss claims of Patrick Murphy). Jimmy Dean Harris died on
June 29, 2021 and was termed on June 30, 2021. See, doc. no. 440 (suggestion of death).

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Hanson**
Harmon
Johnson
Jones
Lay***
Littlejohn
Malone
Martinez
Mitchell
Pavatt
Postelle
Rojem
Ryder
Sanchez
Simpson
Smith
Underwood
Wood

X
X
X

X
X
X
X

X
X
X
X

X

X

X

X
X

X
X
X
X
X

X
X
X
X
X
X

X
X
X
X
X
X

X
X
X
X

X
X
X
X

X

X

* Plaintiff John M. Grant was unwilling to respond to Interrogatory No. 15. See doc. no. 441.
** Plaintiff George Hanson signed two versions of a response to Interrogatory No. 15 (both dated the same
date). One version opted for execution with FDA-approved pentobarbital or sodium thiopental; the other
version expressly declined to identify an alternative. The court considers it appropriate–viewing the record
in the light most favorable to the nonmovant–to give plaintiff Hanson the benefit of the response that does
not result in summary judgment against him.
*** Plaintiff Wade Lay expressly declined to proffer an alternative. Doc. no. 447-1.

As shown in the table, six of the plaintiffs—Coddington, D. Grant, J. Grant,
Jones, Lay and Postelle—have declined to proffer an alternative for carrying out
their sentence of death.15 As is set forth above in Part D(3)(a), that refusal is fatal to
these plaintiffs’ Eighth Amendment claims which, as will be seen, are the only
claims which would, in any event, remain for trial. Accordingly, defendants are
entitled to summary judgment as to these six plaintiffs. That raises the question of
whether final judgment should be entered against these plaintiffs under Rule 54 (b).

15

Plaintiff Wade Lay elaborated on his express refusal to proffer an alternative (doc. no. 447-1) in
a twelve-page pro se pleading, doc. no. 448. In that pleading, Mr. Lay emphatically repeats his
refusal to designate an alternative. Id. at 10-11. He also states, incorrectly, that his operative
pleading in this case is “his amended complaint (Doc. No. 326).” Id. at 10. That amended
complaint was stricken on October 1, 2020, by the order at doc. no. 357 (mailed to Mr. Lay on the
same day).

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Under Rule 54 (b), Fed. R. Civ. P., “[w]hen an action presents more than one
claim for relief—whether as a claim, counterclaim, crossclaim, or third-party
claim—or when multiple parties are involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.”
“Certification under Rule 54(b) is a two-step process. Initially, the district
court must determine that the judgment is final. . . . . The judgment must be ‘final’
in the sense that it is an ultimate disposition of an individual claim entered in the
course of a multiple claims action. Second, the district court must determine that
there is no just cause for delay.” McKibben v. Chubb, 840 F.2d 1525, 1528 (10th
Cir. 1988) (citations and internal quotes omitted).

“No precise test has been

developed for determining whether just cause exists for delay, but generally courts
have weighed Rule 54(b)’s policy of preventing piecemeal appeals against the
hardship or injustice that might be inflicted on a litigant because of the delay.”
United Bank of Pueblo v. Hartford Acc. & Indem. Co., 529 F.2d 490, 492 (10th Cir.
1976).
The language of the rule, the collective import of the Tenth Circuit decisions,
and the guidance to be gleaned from Professor Wright and his colleagues16 suggest,
at least as relevant to the present procedural posture of this case, that the court’s Rule
54 (b) determination should be guided by the following considerations:
 Are multiple parties involved, including one or more parties whose claims have
been fully adjudicated?
Yes. We have thirty-two plaintiffs and multiple defendants. The claims of
these six plaintiffs will be fully and finally adjudicated by this order, in combination

16

10 Wright and Miller, Fed. Prac. & Proc. Civ. § § 2656, 2657 and 2659 (4th ed.).

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with the order entered on September 15, 2020, doc. no. 349, dismissing with
prejudice Counts I, III and VIII. Under the most commonly applied test, “whenever
more than one claimant requests relief or one or more plaintiffs seek relief against
more than one defendant, regardless of the factual similarity of the claims, a final
judgment may be rendered under Rule 54(b) on one or more but fewer than all of the
claims since each plaintiff's claim or rights as to each defendant could have been
enforced separately.” Wright & Miller, id., § 2657. Each of these six plaintiffs could
have enforced his rights separately. The court expressly determines that its judgment
against the six plaintiffs who have not proffered an alternative for carrying out their
sentence of death is a final judgment.
 Is there any just reason for delaying finality as to these six plaintiffs?
No. The court expressly so determines. There are two main considerations
in play here.
First, there is clear cleavage between the basis upon which this case now ends
(in this court) as to these six plaintiffs and the basis upon which this case will go to
judgment as to the other twenty-six plaintiffs. Regardless of what the final outcome
may be as to the plaintiffs who have proffered at least one alternative method of
execution, none of those plaintiffs will arrive at the Court of Appeals in anything
resembling the same posture as these six plaintiffs. Thus, on appeal from the Rule
54 (b) judgments entered today, the Tenth circuit will not find itself “hear[ing]
appeals that will require it to determine questions that remain before the trial court
with regard to other claims.” Wright & Miller, id., § 2659.
Second, as the Supreme Court has repeatedly and emphatically recognized,
after decades of appeals and collateral review as to these six plaintiffs, both “the
State and the victims of crime have an important interest in the timely enforcement
of a sentence.” Bucklew, 1133 (quoting from Hill v. McDonough¸ 547 U.S. 573,

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584 (2006)). “The people of [Oklahoma], the surviving victims of [these plaintiffs’]
crimes, and others like them deserve better.” Id. at 1134.
 Rule 54(b) certification as to six plaintiffs.
Having made the necessary determinations, the court concludes and certifies
that final judgment should be entered under Rule 54(b) against the six plaintiffs who
have not proffered an alternative method for carrying out their sentence of death.
These six plaintiffs are Coddington, D. Grant, J. Grant, Jones, Lay and Postelle. A
separate judgment will be entered for that purpose with respect to each of these
plaintiffs.17
c. As to the remaining plaintiffs, the defendants have not established, as a
matter of law, that the proffered alternative methods of execution should
be excluded as comparators with execution per Chart D of the protocol.18
To prevail as a matter of law as to all plaintiffs on the Glossip second prong,
it is necessary for defendants to exclude all four of the plaintiffs’ proffered
alternative methods of execution as viable comparators to execution per Chart D.
(As shown in the table in Part (b), above, some of the plaintiffs have selected fewer
than all four of the alternatives pled in the Third Amended Complaint. That is of no
moment for present purposes because, as will be seen, the court has concluded that
fact issues preclude elimination of any of the four proffered alternatives.)
The Supreme Court has made it clear that if a prisoner makes an adequate
showing on the first Glossip prong, the bar is fairly low (from the prisoner’s
perspective) on the second prong. As noted above, the Court, in Bucklew, observed

17

Entry of final judgment against Lay moots his motions at doc. nos. 408, 409, 429 and 430.

18

For purposes of this discussion of whether defendants have made a case for rejection of
plaintiffs’ proposed alternatives as a matter of law, the court will disregard the fact that the
existence of fact issues as to the Glossip first prong (degree of risk and severity of pain under Chart
D of the protocol) makes it very hard to undertake and adjudicate as a matter of law the comparison
mandated by the Court in Glossip and Bucklew.

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that “we see little likelihood that an inmate facing a serious risk of pain will be
unable to identify an available alternative.” Id. at 1128-29. This, again, illustrates
the interrelationship between the two prongs.
1. Fact issues preclude rejection, on summary judgment, of
plaintiffs’ first and second alternatives.
Plaintiffs’ first alternative method of execution proposes use of a single dose
of FDA-approved pentobarbital or sodium thiopental (barbiturates),19 augmented by
a “pre-dose” of a large clinical dose of an anesthetic drug such as fentanyl. The
second alternative differs from the first only in that the pentobarbital or sodium
thiopental would be compounded rather than FDA-approved. In support of these
alternatives, plaintiffs point out that Charts A and B of the protocol already provide
road maps for use of pentobarbital and sodium thiopental in Oklahoma executions.
The difference, essentially, would be the addition of fentanyl.
In urging the court to reject these first two alternatives as a matter of law,
defendants argue that (i) the defendants are unable to procure the barbiturates, (ii)
the fentanyl-barbiturate proposal lacks sufficient detail, and (iii) in any event, it is
untried and untested in any state. Of these three arguments for rejection of the
fentanyl-barbiturate proposal as a matter of law, the one that comes closest to being
supported by undisputed facts is the third–that this is an untried and untested
combination. But the problem is that this proposal basically adopts the Oklahoma
protocol (Charts A and B) for using the barbiturates (a method that was successfully
used by Oklahoma when those barbiturates were available for execution), adding
only the pre-dose of fentanyl. It is difficult to conceive, at least with the clarity

19

Examples abound of prisoners arguing against the constitutionality of a method in one case while
other prisoners argue, in other courts, that the same method is a satisfactory alternative. Compare,
Sigmon v. Stirling, 2021 WL 2402279 (D.S.C. June 11, 2021), at *4 (proposing lethal injection of
a single dose of pentobarbital), with Barr v. Lee, 140 S.Ct. 2590 (2020), where single-dose
pentobarbital was challenged as violative of the Eighth Amendment).

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required under Rule 56, that starting out with a big dose of fentanyl in an otherwise
tried and tested protocol would really render the barbiturate options (Charts A and
B) “untried and untested” in the sense that that concept was discussed in Baze and
Bucklew. As for availability of the barbiturates, it appears that the defendants may
have the upper hand on that issue at trial, but plaintiffs have succeeded in raising a
fact issue as to whether, with reasonable effort, the defendants could procure one or
the other of the barbiturates.20 As for the suggested lack of detail of the fentanyl
plus barbiturates proposal, the court is unimpressed. This proposal, as noted,
essentially takes the Oklahoma protocol (Charts A and B) on its own terms and adds
the fentanyl.
2. Fact issues preclude rejection, on summary judgment, of
plaintiffs’ third alternative (pre-dose of fentanyl, 40 milligrams
of midazolam; remove the paralytic).
Plaintiffs’ third alternative method of execution proposes starting with
fentanyl, followed by 40 milligrams of midazolam, then the potassium chloride (to
induce cardiac arrest), without the paralytic (vecuronium bromide). Defendants
argue that this proposal should be rejected as a matter of law because (i) it is not
sufficiently specific, and (ii) it is an untried method.
As for specificity, defendants point out that plaintiffs’ proposal calls for
injection of 40 milligrams of midazolam, but their expert’s report does not address
that dosage. In fact, the only dosage of midazolam addressed in the relevant report
is 500 milligrams (which is unsurprising, since that is what Chart D requires), and
the section of the report that directly addresses this third alternative (doc. no. 388-4,
¶¶ 108-110) makes no reference to any particular dosage of midazolam. At least for

20

It should go without saying, but the court will say anyway, that there would appear to be no
significant obstacle to accommodating plaintiffs on their fentanyl plus barbiturates proposal with
no further ado if defendants should, at long last, find a supply of one or the other of the tried and
tested barbiturates.

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now, the call for exactly 40 milligrams of midazolam is sufficiently specific, and the
court takes the call for a pre-dose of fentanyl to be identical to the same component
of plaintiffs’ first and second proposals. Specificity is not the real problem.
The defendants’ argument that the opiate-plus-midazolam alternative is an
untried method is a bit more complicated than either side admits.

Such a

combination has been used. Plaintiffs point out two such instances. See, doc. no.
388-5, at ¶¶ 174-177. But there were problems with those executions. Id. The
record is thoroughly ambiguous as to why there were problems with those
executions. Viewing the record in the light most favorable to the plaintiffs, as is
required at this stage, it appears that an opiate plus midazolam combination might
work, and, at a minimum, that it is not “untried and untested,” at least if the court
were, for this purpose, to equate fentanyl with hydromorphone as the anesthetic
pre-dose proposed in plaintiffs’ third alternative.
Summary judgment is a very near miss as to this third alternative. The support
it gets in plaintiffs’ briefing (less than one page in a sixty-eight-page brief) and from
their experts is noticeably feeble. This proposal smacks of being half-baked at best.
But the court declines to reject it at this juncture.
3. Fact issues preclude rejection, on summary judgment, of
plaintiffs’ fourth alternative (firing squad).
Plaintiffs’ fourth, and last, proposed alternative is execution by firing squad,
which is the fourth in order of preference among the statutorily mandated methods
of execution in Oklahoma, 22 O.S. 2020 Supp. § 1014. Plaintiffs proffer an expert
report from an emergency physician who has treated numerous gunshot wounds and
has himself been shot. The report provides details from two established protocols
for execution by firing squad (from the U.S. Army and the State of Utah) and then
proceeds to elaborate on those protocols, which are quite similar in many respects.
The court, consequently, rejects out of hand defendants’ contention that the proposed
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firing squad alternative is not advanced with sufficient detail to survive summary
judgment. All that is necessary is that the firing squad proposal be “sufficiently
detailed to permit a finding that the State could carry it out ‘relatively easily and
reasonably quickly.’” Bucklew, 1129. That leaves the contention that execution by
firing squad would not significantly reduce a substantial risk of severe pain. On that
score, defendants argue–yet again–that “[p]laintiffs have failed to prove their case.”
Doc. no. 388, at 38. Aside from the fact that plaintiffs are required to prove nothing
at this stage, we have the fact that the merits of the firing squad proposal–degree of
risk and severity of pain–are the subject of pointed disagreement among three
experts, one for the plaintiffs and two for the defendants. Summary judgment will
be denied as to the firing squad proposal.
_____________________________________
In sum, to the extent that defendants’ motion is denied as to Count II, it is not
denied on narrow legal grounds but rather because fact issues preclude adjudication
under Rule 56. As to Count II, defendants’ motion would, on some issues, have the
court use the analysis and conclusions of defendants’ experts to pick apart the
opinions of plaintiffs’ experts. On other issues, defendants invite the court, more
simply, to weigh the persuasive value of an expert’s conclusion and find it wanting.
But, on summary judgment, the “approach of weighing the credibility of the
competing expert reports amounts to improper fact-finding. Indeed, competing
expert opinions present the classic battle of the experts and it is up to [the trier of
fact] to evaluate what weight and credibility each expert opinion deserves.” Phillips
v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005) (citations and internal quotations
omitted). That said, it is also true that neither the plaintiffs nor the defendants will
have to prevail on every one of the fact issues raised by Count II in order to prevail
in this case. But a trial of the fact issues is necessary. The trial will enable the court
to resolve those fact issues and judgment will be entered accordingly.
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E. The Motion Will Be Granted as to Count IV
Plaintiffs assert, under the First, Fifth and Sixth Amendments, a violation of
their right of access to counsel and the courts. Specifically, they allege that:
The Execution Protocol does not provide Plaintiffs with access to
counsel during an execution. Therefore, under the Execution Protocol,
Plaintiffs will not be able to communicate with their counsel prior to
and during the execution and will not be able to communicate with
counsel regarding any problems, including constitutional violations.
In addition, the Execution Protocol does not permit witnesses
(including Plaintiffs’ attorneys or medical consultants) to view the
setting of IVs and/or the syringes being pushed, so there is no way to
identify, object to, challenge, or correct, any issues with the IV-setting
or drug administration process, including constitutional violations.
Third Amended Complaint, doc. no. 325, ¶¶ 139, 140.
Plaintiffs elaborate on this claim in their opposition brief. The object of this
claim is to enable plaintiffs’ counsel “to communicate with the Plaintiffs, during the
process of preparing for and implementing the execution, starting with the setting of
IVs, and continuing through the pushing of the syringes to administer the drugs and
observing the prisoner’s reactions, through the time the prisoner is declared dead.”
Doc. no. 425, at 57. This is so that counsel may proctor the process, looking for
“potential or extant problems and issues that will result in an inhumane execution.”
Id. at 55. As can be seen, this claim focuses on counsel’s access to, and ability to
communicate with, the inmate.
Several provisions of the protocol are relevant to this claim:
 Except for calls from the inmate’s attorney of record, the inmate’s telephone
privileges are terminated at 9:00 p.m. on the day before the execution. Protocol,
p. 20.
 The inmate may meet with two attorneys of record on the day of the execution,
the meeting to conclude “two hours prior to the scheduled execution or earlier if
necessary to begin preparing the inmate for the execution.” Id., p. 21.
 After the inmate is moved to the execution room and placed on the execution
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table, the IV Team inserts the primary and back up IV catheters. Id., p. 25. (By
statute, the identities of the IV Team members, and all others “who participate in
or administer the execution process,” must be kept confidential. 22 Okla. Stat.
2011 supp. § 1015 (B).)
 The execution may be witnessed by five persons selected by the inmate. Id., p.
11.
 After IV access has been established by the IV team, and the Attorney General
and the Governor (or their designees) have confirmed the absence of legal
impediments to execution, “the agency director shall order the H Unit Section
chief to proceed with the execution.” Id., p. 27. The inmate is given the
opportunity to make his last statement. After that, the microphone is turned off.
Id.
 The protocol includes detailed provisions with respect to checking the
effectiveness of IV access (Id. pp. 26, 43), electrocardiographic monitoring of the
inmate (41), confirming the administration of the correct chemicals (43, 44),
monitoring the inmate’s “level of consciousness” (41), “physically confirm[ing]
the inmate is unconscious” (43, 44), halting the execution in the event of
problems with the IVs or with administration of the chemicals (42), and
confirming death (43).
The last item listed above–the safeguards written into the protocol–deserves
brief mention here. The safeguards in the protocol are, in some respects, more
demanding than those in the protocol which was before the court at the preliminary
injunction stage.

The Supreme Court, in reviewing this court’s denial of a

preliminary injunction (and the Tenth Circuit’s decision affirming that denial),
observed that this court “did not commit clear error in concluding that these
safeguards help to minimize any risk that might occur in the event that midazolam
does not operate at intended.” Glossip, 886. That comment by the Court is
significant not so much for its faint praise (no clear error) as for the fact that the
Court acknowledged the practical reality that, once the multi-step lethal injection
process is under way, the implementation of safeguards, per a carefully-developed
protocol, is at least as important as anything a lawyer, standing there with a cell
phone, might be able to accomplish.
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In ruling from the bench at the preliminary injunction stage of this case, the
court addressed plaintiffs’ access to counsel claim as follows:
This conjures up an untenable scene in which the prisoner's
counsel is standing at the gurney, cell phone in hand, ready to dictate
the information necessary to fill in the blanks on an emergency ex parte
motion for stay if he or she takes issue with any part of the process as
it unfolds.
The reality is that as execution by lethal injection is actually
carried out, the prisoner's erstwhile right of access to the courts must,
of necessity, give way to the execution team's discharge of its duties as
long as those who are carrying out the process are operating within the
confines of a constitutionally sound lethal injection protocol. And I
hasten to add that it would appear from plaintiffs' contention as to the
very closeness of the scrutiny that they say is constitutionally required
that protection of the identities of the execution team members would
likely be impossible.
. . .
No court has found a constitutional right for the prisoner to have
counsel present to supervise the IV insertion process and I decline to be
the first judge to so hold.
Transcript of Ruling, December 22, 2014, at 77-78 (doc. no. 179, entered Dec. 23,
2014).
The court’s view of the matter has not changed. Practical and legal problems,
entwined, are fatal to Count IV.
Because any constitutional claim which might be asserted during an execution
would, by definition, be a last-minute (or later) plea for emergency relief to halt an
execution in progress, it is appropriate to note at the outset that the Supreme Court
has unmistakably set the tone for late-stage capital litigation. Specifically, “[t]he
federal courts can and should protect States from dilatory or speculative suits.” Hill
v. McDonough, 547 U.S. 573, 585 (2006) (lethal injection challenge). Lest anyone
miss the point, the Court returned to this theme in Bucklew: “Courts should police
carefully against attempts to use such [method of execution] challenges as tools to
interpose unjustified delay.” Bucklew, 1134.
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The Court’s admonitions do not, of course, mean that the Constitution can be
suspended at some predetermined hour before the execution begins, nor does it mean
that an attempt to halt an execution on the basis of allegations relating to events
during the execution is to be considered “dilatory” in the usual pejorative sense. But,
given the practical realities attendant to litigation and emergency adjudication of any
claim lodged while an execution is in progress, the Court’s caution about speculative
suits fits. And closely related to this admonition from the Court is the fact that
“[f]iling an action that can proceed under § 1983 does not entitle the complainant to
an order staying an execution as a matter of course.” Hill, at 583-84. Of the four
familiar factors governing the grant or denial of a stay, perhaps the most prominent
in this context is the question of “whether the stay applicant has made a strong
showing that he is likely to succeed on the merits.” Hilton v. Braunskill, 481 U.S.
770, 776 (1987). There is no “execution in progress” exception to this unyielding
requirement. Finally, it is worth noting that, in the context of a lethal injection
challenge, the Supreme Court has observed that “an isolated mishap alone does not
give rise to an Eighth Amendment violation.” Baze, 552 U.S. at 50.
Against this backdrop, the court’s analysis of plaintiffs’ access-to-counsel
claim begins with a Tenth Circuit decision, Est. of Clayton Lockett v. Fallin, 841
F.3d 1098 (10th Cir. 2016), cert. denied, 137 S.Ct. 2298 (2017). Ordinarily, an
on-point Tenth Circuit decision would be the beginning and end of the story for this
court, but Lockett turned on issues of qualified immunity, so the circuit court’s legal
analysis consisted of a search for “clearly established law,” a task which differs
somewhat from looking for what the law actually is, whether clearly established or
not.
As described by the district court (Heaton, J.), the Lockett estate’s claim was
that:

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Mr. Lockett had a right to communicate with his counsel as he lay on
the gurney in the execution chamber, so that he could potentially
commence litigation about whatever aspect of the execution process
arguably violated his rights. Plaintiff cites no authority which gets
remotely close to supporting that remarkable assertion, and the court
has considerable doubt whether any constitutional violation of that sort
even arguably exists.
Est. of Clayton Lockett v. Fallin, 2015 WL 3874883, at *9 (W.D. Okla. June 23,
2015).
The Tenth Circuit panel, which included then-Judge Neil Gorsuch, agreed
with the district court:
Lockett’s Estate attempts to assert a constitutional right to counsel
throughout an execution. It asks this court to recognize a constitutional
right to counsel “when an execution procedure is producing unexpected
and painful results.” [record citation omitted] Lockett’s Estate points
to no law that would support a right to counsel throughout an execution,
and we struggle to envision what such a right would look like in
practice. Thus, Appellees have violated no clearly established law.
Lockett, 841 F.3d at 1117.
The Supreme Court has not addressed the issue of a constitutional right to
counsel (or the courts) while an execution is in progress. The asserted right at issue
here is not the abstract right to have an attorney-client relationship as an execution
unfolds. Plaintiffs have made it plain that the right asserted here is a right to
communicate with counsel at all stages of the execution process, beginning with the
setting of the IVs, continuing through the pushing of the chemicals, and ending at
“the time the prisoner is declared dead.” Doc. no. 425, at 57. Addressing access to
counsel in this context, the Courts of Appeals for the Fifth and Eleventh Circuits
have reached conclusions consistent with that of the Tenth Circuit in Lockett. One
district court has gone the other way to a limited extent, in a decision, Coe v. Bell,
89 F.Supp. 2d 962 (M.D. Tenn. 2000), vacated as moot, 230 F.3d 1357 (6th Cir.
2000), with which this court disagrees.

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In Arthur v. Dunn, 2017 WL 1362861 (M.D. Ala. April 12, 2017), the issue
took the form of a dispute as to the constitutionality of Alabama’s prohibition on
possession of a cell phone by counsel during the execution. As will be seen, the
district court focused mainly on the practicalities of the prisoner’s claim; the circuit
court closely examined the legal aspects.
The district court in Arthur v. Dunn posited a “hypothetical telephonic
colloquy,” id. at *6, occurring during an execution:
Counsel: “His eye just opened.”
Judge: “What exactly does that mean?”
Counsel: “I don't know.”
Judge: “What are you asking me to do?”
Counsel: “Stop the execution.”
Judge: “What drugs have they given?”
Counsel: “I don't know.”
Judge: “What volume of unknown drugs have they given?”
Counsel: “I don't know.”
Judge: “At what rate over time were the unknown drugs in unknown
amounts given?”
Counsel: “I don't know.”
Judge: “What would be the effect on your client if I ordered the
execution stopped?”
Counsel: “I don't know.”
Judge: “Can you tell me with any degree of medical certainty that
stopping the execution at this point would not harm your client, cause
him pain and suffering, or leave him permanently comatose?”
Counsel: “No, honestly I can't.”
The same colloquy would ensue if the inmate tried to sit up and speak,
groaned and thrashed, called for help, or had any other physical reaction
that might occur during an execution.
Id. at *6.
After extensive discussion of the reasons for which it agreed with the Tenth
Circuit in Lockett and disagreed with the Tennessee district court in Coe, the district
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court, in Arthur, focused on an issue that was dispositive when the case got to the
Eleventh Circuit: “To state a valid claim, Arthur would have to establish an actual
injury. See Lewis [v. Casey], 518 U. S. at 349, 351–52. Arthur's request for his
counsel to take a cellular device into a prison while an execution is taking place is
based on speculation that something might go wrong during the procedure. This
theoretical basis for relief falls outside of the injury requirement stated in Lewis.”
Id. at *7. The Eleventh Circuit agreed: “To state a valid right-of-access claim,
Arthur must show both that denying his witness access to a phone actually prevents
him from accessing the courts and that he will specifically be prevented from
bringing a colorable or viable underlying Eighth Amendment claim.” Arthur v.
Comm'r, Alabama Dep't of Corr., 680 F. App'x 894, 909 (11th Cir. 2017).
For the Eleventh Circuit, the predominant issue in Arthur was that of standing.
There was no “‘actual injury’ sufficient to state a claim under Bounds [v. Smith, 430
U.S. 817 (1977)] and Lewis because, absent an underlying violation of a
fundamental right, no ‘injury in fact’–and thus no standing–has been shown.” Arthur
at 909. In other words, the right of access to counsel (and, a fortiorari, to the courts),
applies only to extant claims. But in the case at bar, plaintiffs assert a right, under
the First, Fifth and Sixth Amendments, to have their counsel proctor the execution
process, from beginning to end, with a view to initiating litigation if they see
something they deem constitutionally objectionable. That, as a matter of law, is not
sufficient. See also, to the same effect as Arthur, Whitaker v. Collier, 862 F.3d 490,
at 501 (5th Cir. 2017) (right to counsel during execution: possibility of a “botched
execution” is an “isolated mishap” that is not cognizable via a method-of-execution
claim, citing Baze]); Grayson v. Warden, 672 Fed. Appx. 956, 966-67 (11th Cir.
2016) (possibility that “something might go wrong” is not an “actual injury” entitling
prisoner to counsel with cell phone); McGehee v. Hutchinson, 463 F.Supp.3d 870,

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931-32 (E.D. Ark. 2020) (access during entire process, including setting IVs)21,
appeal pending, 8th Cir. No. 21-1965); Bible v. Davis, 2018 WL 3068804 (S.D. Tex.
June 21, 2018) (no right to have attorney present, with or without a cell phone, while
IV is inserted), aff’d (on statute of limitations), 739 Fed. Appx. 766 (5th Cir. 2018);
Towery v. Brewer, 2012 WL 592749, *18 (D. Ariz. Feb. 23, 2012) (no “actual
injury”), aff’d 672 F.3d 650 (9th Cir. 2012) (not reaching merits of access to counsel
claim), cert. denied, 565 U.S. 1243 (2012).
Finally, the court will note that, even in Coe, the district court went no further
than to hold that the prisoner had a right of access to counsel up to an hour before
the execution and that counsel could have access to a telephone while witnessing the
execution, Coe, 89 F.Supp.2d at 966, all of which, it should be noted, caused that
court to observe that it was “skeptical about a prisoner’s realistic ability to assert and
get redress for a violation of his right to be free from cruel and unusual punishment
during the execution itself.” Id.
The court concludes that defendants are entitled to judgment as a matter of
law on Count IV.
F. The Motion Will Be Granted as to Count V
Under 18 U.S.C. § 3599, an indigent defendant in a capital case is entitled to
appointed counsel at public expense. 18 U.S.C. § 3599 (a)(1). That right includes
representation in “all available post-conviction process, together with applications
for stays of execution and other appropriate motions and procedures.” 18 U.S.C.
§ 3599 (e). In Count V, plaintiffs assert that by “denying Plaintiffs meaningful
access to counsel and to the courts during the preparation for, and carrying out of,
21

Although clearly holding that plaintiffs had no right to have “their attorneys to see and hear the
full execution, including the insertion of the intravenous lines and information about when each
drug in the Arkansas Midazolam Protocol is pushed,” id. at 932-33, the court did grant relief on
an access-to-cell phone claim. Id. at 931. But this result appears, as much as anything else, to
have been reached by way of enforcement of an agreed viewing policy. Id.

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their executions, Defendants intentionally will violate Plaintiffs’ rights under 18
U.S.C. § 3599.” Doc. no. 325, at 56.
Defendants argue that plaintiffs’ claims of denial of access to counsel and the
courts fail under § 3599 for essentially the same reasons for which the constitutional
access to counsel (and courts) claim must fail. Doc. no. 388, at 39-41. The court
agrees. Plaintiffs cite no authority (and the court has found none) suggesting that,
aside from the question of who pays for counsel’s services, the right to counsel at
the time of execution of a sentence of death is more extensive under § 3599 than it
is under the controlling constitutional provisions (as discussed in Part E, above). The
court accordingly concludes that defendants are entitled to judgment as a matter of
law on Count V.
G. The Motion Will Be Granted as to Count VI
Count VI alleges violations of the Ex Post Facto Clause of the United States
Constitution (Article I, Section 10, clause 1) and Article V, section 54 of the
Oklahoma Constitution. These arguments are different but related.22
A change in the execution method does not increase a condemned inmate's
punishment and thus does not implicate the Ex Post Facto Clause. See, e.g., Malloy
v. South Carolina, 237 U.S. 180, 185 (1915) (law which changed method of
execution from hanging to electrocution “did not change the penalty—death—for
murder, but only the mode of producing this” and did not otherwise increase the
punishment); Zink v. Lombardi, 783 F.3d 1089, 1108 (8th Cir. 2015) (prisoners
failed to state an ex post facto claim because the punishment—death—has remained
the same, and only the mode of producing death has changed); Poland v. Stewart,
117 F.3d 1094, 1105 (9th Cir. 1997) (“[t]he change in method does not make the

22

Count VI does not challenge the protocol under the Ex Post Facto Clause of the Oklahoma
Constitution (Article 2, section 15).

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sentence [of death] more burdensome and so does not violate the Ex Post Facto
Clause”); United States v. Tipton, 90 F.3d 861, 903 (4th Cir. 1996) (fact that
regulation providing for death by lethal injection was promulgated after condemned
inmate had been sentenced did not violate Ex Post Facto Clause); United States v.
Chandler, 996 F.2d 1073, 1096 (11th Cir. 1993) (reasoning that a new capital statute
specifying a method of execution would only provide for the method by which the
punishment would be carried out and would not alter a death sentence, thus it would
not violate Ex Post Facto Clause); Matter of Federal Bureau of Prisons’ Execution
Protocol Cases, 2021 WL 127602, *3 (D.D.C. Jan. 13, 2021) (rejecting ex post facto
claim at preliminary injunction stage; “The court finds no reason to depart from
precedent squarely addressing the question at hand. The substitution of the drugs
used in lethal injection does not alter Higgs’ sentence of death—it changes only the
way his sentence will be implemented.”).23
Moving on to the state constitutional provision in question—Article V, section
54 of the Oklahoma Constitution—that section provides as follows: “The repeal of
a statute shall not revive a statute previously repealed by such statute, nor shall such
repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue
of such repealed statute.” (Emphasis added.) Plaintiffs allege that, other than Mica
Martinez, they were sentenced to death under an earlier version of the first sentence

23

As part of their ex post facto argument, plaintiffs contend that permitting a more painful
execution, could, taken to its logical conclusion, permit death by a lethal dose of any substance,
such as gasoline, battery acid, etc. The court disagrees. The fact that plaintiffs’ ex post facto
argument has been rejected implies nothing at all–either as a matter of law or logic–about how
these types of purely hypothetical injections would fare under the Eighth Amendment if a court
were called upon to make such a determination.

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of 22 O.S. Supp. 2020 § 1014(A), which was in effect until November 1, 2011.24
Count VI alleges the protocol (which is consistent with the amended version of the
first sentence of § 1014(A) but not the earlier version), violates Article V, section
54. Plaintiffs argue the amended version of the statute creates a significant risk of
increased punishment as compared to the pre-November 1, 2011 version of the
statute. The court rejects this argument. Article V, section 54 is not violated by the
protocol or by the complained-of amendment to § 1014(A), neither of which impact
the way in which the penalty (death) will be carried out. In the language of Article
V, section 54, neither the protocol nor the amendment “affect any accrued right, or
penalty incurred….”
The court concludes that defendants are entitled to judgment as a matter of
law on Count VI.
H. The Motion Will Be Granted as to Count VII
Count VII alleges a Fourteenth Amendment procedural due process claim. In
this count, plaintiffs allege they have a protected life and liberty interest in being
executed with the use of “an ultrashort-acting barbiturate” as required by the first
sentence in the version of § 1014(A) in effect before November 1, 2011. Plaintiffs
argue that “[a]llowing Defendants to execute Plaintiffs using a method that state law
did not permit when Plaintiffs were sentenced and which would disadvantage

24

Prior to the amendment which became effective on November 1, 2011, the first sentence of
§ 1014(A) provided: “The punishment of death must be inflicted by continuous, intravenous
administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a
chemical paralytic agent until death is pronounced….” Effective November 1, 2011, the first
sentence of § 1014(A) was amended to provide as follows: “The punishment of death shall be
carried out by the administration of a lethal quantity of a drug or drugs until death is
pronounced….” (Oklahoma’s highest courts have held that for purposes of Article V, section 54,
there is no material difference between a statutory repeal and an amendment, because an
amendment, to a certain degree, operates as a repeal of prior law. Witherow v. State, 400 P.3d
902, 904, n. 2 (Okla. Crim. App. 2017), citing One Chicago Coin’s Play Boy Marble Board v.
State ex rel. Adams, 212 P.3d 129, 133 (Okla. 1949).)

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Plaintiffs and create a significant risk of increased punishment would, by definition,
violate their due process rights under the United States Constitution.” Doc. no. 425,
p. 53, n. 14.
At the motion to dismiss stage, the court held that Count I, construed as a
claim brought under the Due Process Clause of the Fourteenth Amendment, failed
on its merits. Doc. no. 349, pp. 3-7. At that time, the court addressed Whitaker v.
Livingston, 732 F.3d 465 (5th Cir. 2013), indicating its agreement with Whitaker’s
statement that: “The lack of a cognizable liberty interest is fatal to the due process
claim.” Whitaker, 500, citing Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir. 2013).
As Whitaker stated, “Even if the Fourteenth Amendment sometimes protects liberty
interests not explicitly enumerated in the Constitution, we 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, 467.
Count VII, like Count I (as construed), rests on the Fourteenth Amendment.
Whereas Count I alleges defendants’ failure to disclose sufficient information
regarding the protocol violates plaintiffs’ due process rights, Count VII alleges
plaintiffs have a protected interest in being executed in the manner specified in the
earlier version of § 1014(A), that is, with the use of “an ultrashort-acting
barbiturate.” Count VII, like Count I, fails as a matter of law; both counts rest on
the incorrect premise that the Fourteenth Amendment provides a cognizable due
process interest in the manner of execution. The court concludes that defendants are
entitled to judgment as a matter of law on Count VII.
I. The Motion Will Be Granted as to Count IX
Count IX is a human experimentation claim. It is brought under the Eighth
and Fourteenth Amendments. Count IX alleges the execution drugs called for by
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the protocol have not been tested on non-human animals. Count IX alleges the use
of

these

drugs

on

unconsenting

human

subjects

constitutes

high-risk

experimentation with lethal drugs, violating a prisoner’s Eighth Amendment right to
be free from cruel and unusual punishment, and violating a prisoner’s substantive
due process right to liberty as protected by the Fourteenth Amendment.
To the extent Count IX is brought under the Eighth Amendment, it is the
equivalent of the human experimentation claim which was previously alleged in
Count 7 of the original complaint. This court denied relief on that claim at the
preliminary injunction stage. The court of appeals affirmed that ruling, rejecting
plaintiffs’ argument that this court erred when it applied the risk-analysis test of Baze
instead of an “evolving standards of decency” analysis. Warner v. Gross, 776 F.3d
721, 736 (10th Cir. 2015).
For the same reasons that Count 7 of the original complaint failed when it was
before the court at an earlier stage, Count IX, to the extent it is based on the Eighth
Amendment, fails today. The Eighth Amendment does not require that, absent
consent, a prisoner may only be executed in a manner that has been tested on nonhuman animals. Count IX also fails to the extent it is premised on the Fourteenth
Amendment.

The Fourteenth Amendment does not provide plaintiffs with a

substantive due process right to be executed in a manner which has been tested on
non-human animals. See, Whitaker, 500 (“The lack of a cognizable liberty interest
is fatal to the due process claim”). The court concludes that defendants are entitled
to judgment as a matter of law on Count IX.
J. The Motion Will Be Granted as to Count X
Count X relates to plaintiffs’ right of access to governmental information
under the First and Fourteenth Amendments.

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To the extent Count X is brought under the Fourteenth Amendment, it is
similar to Count I, previously dismissed. Count I, construed as alleged under the
Fourteenth Amendment, alleges that plaintiffs have not been provided with
sufficient governmental information regarding the development and drafting of the
protocol or the procedures that will be used to carry it out. Similarly, Count X also
addresses plaintiffs’ alleged right to governmental information. However, Count X
focuses on a subset of that information, specifically, information regarding the
source of the drugs to be used. As already noted several times in this order, this
court dismissed Count I because it agrees with Whitaker that the protocol, which
goes to the manner of causing death rather than the penalty of death, does not
implicate rights protected by due process. This principle also controls the result with
respect to plaintiffs’ narrower set of claims, alleged in Count X, asserting that failure
to provide plaintiffs with information about the source of the execution drugs
deprives plaintiffs of notice and an opportunity to be heard in violation of the Due
Process Clause of the Fourteenth Amendment.
Other courts have found that neither the Fourteenth Amendment nor the First
Amendment grant a prisoner the right to know where, how or by whom lethal
injection drugs will be manufactured. For example, Wellons v. Comm’r, Georgia
Dep’t of Corrections, 754 F.3d 1260, 1267 (11th Cir. 2014), which considered similar
issues at the preliminary injunction stage, states as follows.
We agree with the judgment of the district court. Neither the Fifth,
Fourteenth, or First Amendments afford Wellons the broad right “to
know where, how, and by whom the lethal injection drugs will be
manufactured,” as well as “the qualifications of the person or persons
who will manufacture the drugs, and who will place the
catheters.” See Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135
L.Ed.2d 606 (1996) (“[S]tatements [in Bounds] appear to suggest that
the State must enable the prisoner to discover grievances, and to litigate
effectively once in court....These elaborations upon the right of access
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to the courts have no antecedent in our pre Bounds cases, and we now
disclaim them.”) (citing Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct.
1491, 52 L.Ed.2d 72 (1977)); Sepulvado v. Jindal, 729 F.3d 413, 420
(5th Cir. 2013) (“There is no violation of the Due Process Clause from
the uncertainty that Louisiana has imposed on Sepulvado by
withholding the details of its execution protocol.”); Williams v.
Hobbs, 658 F.3d 842, 852 (8th Cir. 2011) (holding that the prisoners,
who argued that the Arkansas Method of Execution Act violated the
due process clause because its secrecy denied them “an opportunity to
litigate” their claim that the execution protocol violated the Eighth
Amendment, failed to state a plausible due process access-to-the-courts
claim). Wellons has not established a substantial likelihood of success
on the merits of his claim that the dearth of information regarding the
nature of the pentobarbital that will be used in his execution and the
expertise of those who will carry it out violates the First Amendment or
his right to due process.
Wellons, 754 F.3d at 1267 (emphasis added).
The Eighth Circuit Court of Appeals has concluded that the First Amendment
does not support a claim for failure to disclose the name and source of drugs to be
used in an execution. Zink v. Lombardi, 783 F.3d 1089, 1112 (8th Cir. 2015). In
addition to citing Wellons, Zink notes that after a divided panel of the Ninth Circuit
enjoined the execution of an Arizona inmate until the state provided him with the
name and provenance of drugs to be used in his execution, “The Supreme Court
promptly vacated the injunction without dissent.” Zink, 1112, referencing Wood v.
Ryan, 759 F.3d 1076, 1088 (9th Cir. 2014), vacated, Ryan v. Wood, 573 U.S. 976
(2014). Zink affirmed the district court’s dismissal of this and other claims. Zink,
1114.
Neither the Fourteenth nor the First Amendment requires the state to provide
information to plaintiffs regarding the source of the execution drugs or the nature of

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the company which manufactures those drugs.25

The court concludes that

defendants are entitled to judgment as a matter of law on Count X.
K. Conclusion as to Motion for Summary Judgment26
For the reasons stated in this order, defendants’ motion for summary judgment is
GRANTED IN PART and DENIED IN PART, as follows.
Count II. The gist of Count II, which is alleged under the Eighth Amendment,
is that lethal injection under Chart D will subject the prisoner to a constitutionally
unacceptable risk of a constitutionally unacceptable level of pain and suffering.
Defendants’ motion for summary judgment is GRANTED IN PART and DENIED
IN PART with respect to this count. The motion is GRANTED with respect to the
claims alleged in Count II by plaintiffs Coddington, D. Grant, J. Grant, Jones, Lay
and Postelle. To the extent defendants move for summary judgment on the claims
alleged in Count II by the other twenty-six plaintiffs, the motion is DENIED.

25

Title 22 O.S. 2011 § 1015(B) has not been cited by any party. Nevertheless, the court notes it.
Section 1015(B) provides that “The identity of all persons who participate in or administer the
execution process and persons who supply the drugs, medical supplies or medical equipment for
the execution shall be confidential and shall not be subject to discovery in any civil or criminal
proceedings.” To the extent this statute addresses those who supply execution drugs, the
Oklahoma Supreme Court has construed it to make only the identity of the persons who supply the
drugs confidential. Lockett v. Evans, 330 P.3d 488, 491 (Okla. 2014). The complaint does not
allege that plaintiffs have a right to know the identity of the persons who supply the drugs,
rendering § 1015(B) only marginally relevant.
26

Embedded in plaintiff Wade Lay’s pro se pleading filed on August 9, 2021, is a motion to
“suspend the proceeding,” in which he also seeks discovery and an evidentiary hearing. Doc. no.
448, at 11-12. That motion is STRICKEN as moot, in light of the rulings set forth in this order.
If that motion were not moot, it would be denied because (i) the proceedings Mr. Lay contemplates
(described at doc. no. 448, p. 12) have no connection with the issues before the court in this case,
and (ii) granting the relief sought would, with no semblance of a showing of good cause, Husky
Ventures, Inc. v. B55 Invs., Ltd., 911 F.3d 1000, 1019 (10th Cir. 2018), upend the schedule in this
case.

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Counts IV, V, VI, VII, IX and X. Summary judgment is GRANTED in favor of
defendants and against plaintiffs on Counts IV, V, VI, VII, IX and X.
Plaintiffs Against Whom Summary Judgment is Entered. Summary judgment on
Counts II, IV, V, VI, VII, IX and X is GRANTED in favor of defendants and against
plaintiffs Coddington, D. Grant, J. Grant, Jones, Lay and Postelle. As Counts I, III
and VIII were dismissed with prejudice at an earlier stage, no claims alleged by these
six plaintiffs remain for trial. The court has certified that final judgment should be
entered under Rule 54(b), Fed. R. Civ. P., against these six plaintiffs. Separate
judgments will be entered for that purpose.
Counts Remaining to be Determined at Trial.

These rulings, along with the

court’s rulings at the motion to dismiss stage, mean that the only claims which
remain for trial are those alleged in Count II by the twenty-six plaintiffs other than
Coddington, D. Grant, J. Grant, Jones, Lay and Postelle.
L. Scheduling, Trial Setting and Related Matters
By separate order, which will provide guidance as to the course of proceedings
through the trial of this case, this matter will be set for a scheduling conference.
IT IS SO ORDERED this 11th day of August, 2021.

14-0665p104.docx

43