Chester et al v. Beard et al

Filing 186

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Pltf Hubert Michael's Motion for Stay of Execution, TRO, Prelim Inj 139 is DENIED. Signed by Chief Judge Yvette Kane on Nov. 6, 2012. SEE ORDER.(sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRANK ROBERT CHESTER, et al.,
Plaintiffs
v.
JOHN E. WETZEL, et al.,
Defendants

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Civil No. 1:08-cv-1261
(Chief Judge Kane)

MEMORANDUM
Before the Court is a motion for stay of execution, temporary restraining order, or
preliminary injunction filed by Plaintiff Hubert Michael, who is an inmate under sentence of
death. (Doc. No. 139.) Mr. Michael is scheduled to be executed by lethal injection on Thursday,
November 8, 2012. For the reasons that follow, the Court will deny the motion.
I.

PROCEDURAL BACKGROUND
The above-captioned action is a class action lawsuit filed pursuant to 42 U.S.C. § 1983,

challenging the constitutionality of Pennsylvania’s lethal injection protocol. The original
complaint in this case, filed in 2007, contained only one constitutional challenge: that the
protocol poses an unnecessary risk that Plaintiffs will suffer pain in violation of the proscription
against cruel and unusual punishment and the guarantees of due process of law under the Eighth
and Fourteenth Amendments of the United States Constitution. (Doc. No. 1 ¶ 40.) Counsel has
been appointed to represent the class, which consists of all persons who are presently under a
sentence of death in Pennsylvania or who at some point during the pendency of this action will
be under a sentence of death by lethal injection in Pennsylvania. Separate counsel has entered an
appearance on behalf of unnamed Plaintiff class member Hubert Michael, who has also moved to
intervene in this action.
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After some discovery had been conducted in this action, on October 7, 2010, Defendants
informed the Court that the Pennsylvania Department of Corrections (DOC) was developing a
new lethal injection protocol that it expected to issue within three to four weeks. (Doc. No. 67.)
Thus, at Defendants’ request and with the agreement of Plaintiffs, the Court stayed all deadlines
in this case pending DOC’s adoption of a new protocol. (Doc. No. 68.) On January 20, 2011,
after having informed the Court that DOC had provided counsel for Plaintiffs with a new lethal
injection protocol, Defendants again advised the Court that DOC was developing yet another
protocol, and moved the Court to extend the discovery deadlines in the case. (Doc. Nos. 72, 73.)
The Court granted the motion and ordered that additional discovery was to be completed within
90 days of Plaintiffs’ counsel receiving a copy of the new policy. (Doc. No. 73.)
On August 28, 2012, DOC informed Plaintiffs that it had revised its execution protocol
the previous day. (Doc. No. 81.) On September 5, 2012, Defendants’ counsel disclosed the new
execution protocol to class counsel. (Doc. No. 85.)
On September 11, 2012, Pennsylvania Governor Tom Corbett signed a warrant setting
Plaintiff Hubert Michael’s execution for November 8, 2012. (Doc. No. 131 ¶ 9.) Plaintiff
Michael entered an appearance in this action on October 10, 2012. (Doc. No. 118.) On October
16, 2012, Plaintiff Michael filed an intervenor complaint jointly with another Plaintiff, Terrance
Williams. (Doc. No. 131.) In their joint intervenor complaint, Plaintiffs Michael and Williams
bring four constitutional challenges to Pennsylvania’s lethal injection protocol, three of which
were not contained in the original complaint. On October 23, 2012, Plaintiff Michael filed a
motion for stay of execution, temporary restraining order, or preliminary injunction. (Doc. No.
139.)

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In his motion for stay of execution, Plaintiff Michael argues that the Court should enjoin
Defendants from using their procedures to execute him until his claims can be reviewed and
resolved on the merits. (Id.) Specifically, Plaintiff Michael argues that: (1) Defendants’
execution procedures, practices and policies create a risk that he will suffer pain in violation of
the Eighth and Fourteenth Amendments (Claim I); (2) Defendants’ written execution procedures
are unlawful and invalid under state law (Claim II); (3) the written protocol violates Mr.
Michael’s rights to due process under the Fifth and Fourteenth Amendments (Claim III); and (4)
the execution procedures’ failure to provide for counsel’s presence at the execution violates Mr.
Michael’s constitutional rights to access to counsel and the courts under the First, Sixth, Eighth,
and Fourteenth Amendments (Claim IV). (Id.) On October 31, 2012, Defendants filed a brief in
opposition to Plaintiff Michael’s motion. (Doc. No. 161.) On November 5, 2012, the Court held
an evidentiary hearing and oral argument related to the motion for a stay of execution.
II.

LETHAL INJECTION PROTOCOL
The DOC revised its lethal injection protocol on August 27, 2012, effective August 28,

2012. The lethal injection protocol consists of a document entitled 6.5.8, Capital Case
Procedures Manual, Section 4 – Execution Procedures. (Hrg. Nov. 5, 2012, Pl. Exh. 14.) The
version that Defendants submitted to the Court has been substantially redacted.
According to the protocol, executions take place at SCI-Rockview in Bellefonte,
Pennsylvania. The Secretary of the DOC designates the time of the lethal injection on the date
stated on the execution warrant signed by the Governor. The DOC designates a lethal injection
team (LIT) consisting of “a sufficient number of individuals qualified to administer the lethal
injection to ensure that a two-member team, at a minimum, will be available for each scheduled

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execution.” (Id. at 8.) The LIT members “must be trained health care professionals who have
completed intravenous therapy training and are experienced in performing venipuncture. In the
case of a collapsed vein(s), team members must be able to identify appropriate alternative IV
access points. At least one team member will have experience in placing an IV in the jugular
vein.” (Id. at 9.) The lethal injection protocol does not detail the training required of the LIT
members.
On the date of the execution, the LIT members will ensure that all necessary inventory is
in proper order. (Id. at 23.) A number of details are set forth in the protocol, ranging from the
temperature of the drugs and the colors of the syringes to the outfits that the LIT members wear
during the execution.
Once the inmate is transported to the lethal injection chamber and secured on the
injection table, the LIT members enter the injection chamber, and connect an
electroencephalograph (EEG) monitor to monitor the inmate’s consciousness level and an
electrocardiograph (ECG) to monitor the inmate’s heart, if those monitors are being used. (Id. at
29.) Next, members of the LIT will establish two IV catheters, one in each forearm or other
usable vein. The catheters are connected to an IV extension set that leads to a saline solution
infusion. The LIT members will then start and regulate the flow of saline at a rate sufficient to
keep the vein open. (Id.)
After the Secretary of the DOC or the Secretary’s designee determines that no stay of
execution has been ordered, the Capital Facility Manager or designee will give the final order for
the execution to proceed, and the LIT will begin administering a three-drug protocol. (Id. at 30.)
The first drug is an anesthetic, either pentobarbital or sodium thiopental. The DOC has

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expressed that it intends to use pentobarbital with respect to Michael’s execution. First, one
syringe containing 2,500 mg of pentobarbital will be inserted into an IV administration set
connected to the left arm, and the syringe is to be injected into the tube. Next, a second syringe
containing 2,500 mg of pentobarbital is to be injected into an IV administration set connected to
the right, and injected. Thereafter, 50 ml of saline is to be administered to the left IV
administration set to flush the line. A checklist attached to the protocol indicates that a saline
flush will also be performed on the right arm IV line. (Id. at 51.)
After injecting the first drug and the saline solution, the LIT will ensure that the inmate is
unconscious. If an EEG monitor is being used, the LIT will observe the EEG monitor to
determine if the patient state index (PSI) is nine or less. (Id. at 31.) Next, a consciousness check
is performed,1 whereby the Capital Facility Manager or designee will call the inmate’s name in a
loud voice and observe the inmate for a reaction, a member of the LIT will assess the inmate by
touching the inmate, shaking the inmate’s shoulder, and brushing the inmate’s eyelashes. The
Capital Facility Manager or designee and the LIT will closely monitor the inmate and must agree
that the inmate is unconscious. (Id.) If either the LIT or the Capital Facility Manager or
designee believes that the inmate is not unconscious, the LIT will administer more anesthesia as
described above.
The LIT will then inject one dose of 50 mg of pancuronium bromide through the
injection tube connected to the left arm, and will flush the injection tube with 50 ml of saline
solution. (Id. at 32.) Next, the LIT will proceed with injecting the inmate with the third drug:

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A consciousness check will be performed two minutes after administration of the first
drug in the event that an EEG is not used. (Id.)
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two sequential doses of 50 meq of potassium chloride in the tube connected to the left arm. (Id.)
Potassium chloride is an electrolyte used to stop the inmate’s heart. After the potassium chloride
is administered, the LIT will observe the ECG monitor to ensure that cardiac electrical activity
has ceased for two minutes. If the inmate does not die after two doses of the potassium chloride
are administered, a third and fourth dose will be administered into the tube connected to the
inmate’s left arm. After the absence of cardiac electrical activity is observed for two minutes, or
after three minutes have passed if an ECG is not being used, the Coroner will enter the injection
chamber to pronounce the inmate dead.
Execution procedures are rehearsed at least three times per year, and additional rehearsals
are held whenever there is an imminent execution. (See Doc. No. 161 at 10; Hrg. Nov. 5, 2012,
Pl. Exh. 1 at 5.)
III.

STANDARD OF REVIEW
A district court may order a stay of execution in certain circumstances where a state’s

execution would not comport with the Constitution. See Nelson v. Campbell, 541 U.S. 647, 650
(2004); Hill v. McDonough, 547 U.S. 573, 583-85 (2006); Baze v. Rees, 553 U.S. 35, 61 (2008).
However, “[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, 547 U.S. at 583-84. Instead, a stay of
execution is an equitable remedy that requires consideration of the Commonwealth’s “strong
interest in enforcing its criminal judgments without undue interference from the federal courts.”
Id. at 384. The standard for granting a stay of execution is the same as the standard for granting
a preliminary injunction. Id.; see also Towery v. Brewer, 672 F.3d 650, 657-58 (9th Cir. 2012)
(“In the context of a capital case, the Supreme Court has emphasized that [the standards for

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granting a preliminary injunction] apply when a condemned prisoner asks a federal court to
enjoin his impending execution . . . .”) (citing Hill, 547 U.S. at 584).
A motion for a preliminary injunction is governed by Rule 65(a) of the Federal Rules of
Civil Procedure. An injunction is an “extraordinary remedy” that is never awarded as of right.
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A party seeking a preliminary
injunction must satisfy the traditional four-factor test: (1) a likelihood of success on the merits;
(2) he or she will suffer irreparable harm if the injunction is denied; (3) granting relief will not
result in even greater harm to the nonmoving party; and (4) the public interest favors such
relief.” Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (citing Child Evangelism
Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004)).
IV.

DISCUSSION
A.

Likelihood of Success on the Merits

The burden is on Plaintiff Michael, as the moving party, to demonstrate a likelihood of
success on the merits. Plaintiff Michael may satisfy this burden by demonstrating that there is a
“reasonable likelihood that [he] will ultimately win the relief [he] seek[s].” N. Pa. Legal Servs.,
Inc. v. Lackawanna Cnty., 513 F. Supp. 678, 681 (M.D. Pa. 1981). Failure to demonstrate a
likelihood of success on the merits necessarily results in the denial of a preliminary injunction.
In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982).
Plaintiff Michael has set forth four claims in his motion for stay of execution, including
three claims that were not raised in the original complaint in this action. For the reasons that
follow, the Court finds that he has not established a likelihood of success on the merits of any of
these claims.

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1.

Claim I: Cruel and Unusual Punishment

First, Plaintiff Michael argues that Defendants’ written execution procedures violate his
right to freedom from cruel and unusual punishment under the Eighth and Fourteenth
Amendments. (Doc. No. 141 at 8.) The Eighth Amendment to the United States Constitution,
which is applicable to the States through the Due Process Clause of the Fourteenth Amendment,
provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII; Baze v. Rees, 553 U.S. 35, 47 (2008).
In Baze, considering the constitutionality of Kentucky’s three-drug lethal injection protocol, the
United States Supreme Court began with the premise that capital punishment is constitutional,
and reasoned that “[i]t necessarily follows that there must be a means of carrying it out. Some
risk of pain is inherent in any method of execution – no matter how humane – if only from the
prospect of error following the required procedure.” Id. A plurality of the Supreme Court held
that in order to prevail on an Eighth Amendment claim challenging the constitutionality of an
execution procedure, an inmate must show that there is “a ‘substantial risk of serious harm,’ an
‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were
‘subjectively blameless for purposes of the Eighth Amendment.’” Id. at 50 (quoting Farmer v.
Brennan, 511 U.S. 825, 842, 846, and n.6 (1994)); Jackson v. Danberg (Jackson I), 594 F.3d 210,
222-23 (3d Cir. 2010) (adopting the Baze plurality as the narrowest grounds upon which five
Justices agreed) (citing Marks v. United States, 430 U.S. 188, 193 (1977)).
To prevail on a claim that the exposure to such risk runs afoul of the
Constitution, an inmate must demonstrate that “the conditions
presenting the risk must be ‘sure or very likely to cause serious
illness and needless suffering,’ and give rise to ‘sufficiently imminent
dangers.’” Id. at 1530-31 (quoting Helling v. McKinney, 509 U.S.
25, 33, 34-35, 113 S.Ct. 2475, 125 L. Ed. 2d 22 (1993)). An inmate
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falls short of that burden by showing only that “an execution method
may result in pain, either by accident or as an inescapable
consequence of death[.]” Id. at 1531.
Jackson I, 594 F.3d at 216.
The Third Circuit, in Jackson I, held that Delaware’s lethal injection protocol was
constitutional because it provided safeguards that exceeded those in the Kentucky protocol that
the Supreme Court in Baze “found constitutionally firm.” Id. at 230. The three-drug protocol
used by Delaware at the time of the Third Circuit’s decision in Jackson I called for the sequential
administration of sodium thiopental, pancuronium bromide, and potassium chloride. Months
later, the plaintiffs in that case challenged Delaware’s revised procedures, which called for the
use of pentobarbital rather than sodium thiopental. The Third Circuit affirmed the district
court’s denial of the plaintiffs’ motion to stay, holding that the district court did not abuse its
discretion in finding that pentobarbital is an effective anesthetic for use in the three-drug
protocol. Jackson v. Danberg (Jackson II), 656 F.3d 157, 166 (3d Cir. 2011).
Here, Plaintiff Michael argues that Defendants’ lethal injection procedure creates a
substantial risk of serious harm by failing to ensure that a prisoner is adequately anesthetized
before the administration of the second and third drugs, noting several differences between
Pennsylvania’s protocol and the constitutionally acceptable protocols utilized in Kentucky and
Delaware. Specifically, Plaintiff Michael avers that the procedures create a significant risk of
harm because: (1) the protocol requires the use of a two-arm administration of pentobarbital; (2)
the protocol requires use of drugs that are presently unavailable except from unreliable sources;
(3) the protocol contains inadequate safeguards against a last-minute stay of execution; (4) the
LIT members are not adequately trained or qualified to: (a) assess consciousness, (b) administer

9

general anesthesia, or (c) interpret EEG monitors; (5) the protocol places no time limits on the
LIT’s efforts to achieve venous access; and (6) the protocol commands significant deviations
from the statute that authorizes lethal injection. The Court will consider whether any of these
challenges implicate a constitutionally unacceptable risk that Mr. Michael will suffer serious
pain and needless suffering.
a.

Two-Arm Administration of Pentobarbital

Mr. Michael contends that the protocol’s “novel, untested administration technique for
pentobarbital” in which half of the total dose of the drug is administered in the left arm and half
of the total dose is administered in the right arm creates a serious risk that he will not be
unconscious prior to the administration of the second and third drugs. (Doc. No. 141 at 9.) The
execution protocol provides that “one syringe containing 2,500 mg pentobarbital . . . will be
inserted in the ‘Y’ injection tube of the left arm administration set and the injection shall
commence” and “a second syringe containing 2,500 mg pentobarbital . . . will be inserted into
the ‘Y’ injection tube of the right arm IV administration set and the contents injected.” (Doc.
No. 108-4 at 13.) According to the protocol, “50 ml Normal Saline . . . will [then] be inserted
into the ‘Y’ injection tube of the left arm IV administration set and the contents injected to flush
the line.” (Id.)
Mr. Michael avers that because this protocol does not require a saline flush of the
injection tube of the right arm IV administration set, there is a substantial risk that the LIT will
not notice any problems with this injection tube, potentially resulting in Mr. Michael receiving
less than 5,000 mg of pentobarbital. In support of Plaintiff Michael’s argument, Dr. David B.
Waisel – who the Court accepted as an expert in anesthesiology – opined that the absence of a

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saline flush on both arms increases the risks that the drug will not “fully reach the inmate,” and
that the barbiturate and muscle relaxant will mix and cause painful flocculation that can render
the IV inoperable. (Hrg. Nov. 5, 2012, Pl. Exh. 32 at 10.) In reaching this opinion, Dr. Waisel
appears to rely on an understanding that the protocol “does not require a flush of the right arm
line after administration of the pentobarbital.” (Id.) However, a document entitled Checklist of
Lethal Injection Procedures, which is attached to the lethal injection protocol, provides for the
performance of a 50 ml saline flush on both the left and right IV lines following administration
of pentobarbital in each IV line. (Hrg. Nov. 5, 2012, Pl. Exh. 14 at 51.)
Mr. Michael has not made a clear showing that the two-arm administration of anesthesia
creates a substantial risk of severe pain. First, contrary to Mr. Michael’s contentions, the
protocol’s administration of pentobarbital is not a novel or untested administration technique.
See Pavatt v. Jones, 627 F.3d 1336, 1339 (10th Cir. 2010) (“[T]he first step of the [Oklahoma
Department of Corrections’] lethal injection protocol mandates the intravenous administration to
the subject inmate of 5,000 milligrams of pentobarbital (2,500 milligrams in each arm).”).
Second, Mr. Michael’s contention that, because the protocol does not require a saline flush of the
right arm IV administration set, the LIT may mistakenly cause him to not be sufficiently
unconscious prior to the injections of the second and third drugs, is unavailing. First, the
protocol does in fact call for a saline flush on both arms. However, even if it did not, this would
not create an unconstitutional risk of pain in and of itself. The Supreme Court recognized in
Baze that “[s]ome risk of pain is inherent in any method of execution – no matter how humane –
if only from the prospect of error in following the required procedure” and, as a result, “the
Constitution does not demand the avoidance of all risk of pain in carrying out executions.” 553

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U.S. at 47.
Moreover, it is not clear from the record whether the entire 5,000 mg dose of
pentobarbital is necessary for an inmate to be sufficiently anesthetized or if some lesser amount
would be sufficient. An expert in the Pavatt case, which involved Oklahoma’s lethal injection
protocol, characterized a 5,000 mg dose of pentobarbital as “an enormous overdose” that would
be lethal. Pavatt, 627 F.3d at 1339. The record in this case is devoid of any expert testimony
regarding the necessary dose of pentobarbital to achieve the required level of unconsciousness.
Plaintiff Michael relies on nothing more than speculation to support his argument that the lethal
injection protocol’s use of a two-arm injection technique creates a serious risk of
maladministration. Mr. Michael cannot successfully challenge the lethal injection protocol
“merely by showing a slightly or marginally safer alternative.” Baze, 553 U.S. at 50.
Thus, the Court finds that Plaintiff has not made a showing that he is likely to succeed on
his claim that the two-arm administration of pentobarbital creates a significant risk that he will
not be adequately anesthetized.
b.

Use of Unregulated Drugs

Next, Plaintiff Michael asserts that the protocol requires the use of drugs, which are
presently unavailable except in an unreliable form. (Doc. No. 141 at 10-11.) If contaminated,
compromised, or substandard, Michael argues, the pentobarbital could cause severe pain upon
administration, or could fail to have the intended anesthetic effect.
The allegations of this claim formed the subject matter of a discovery dispute and a
motion for sanctions that Plaintiff Michael asks the Court to consider in ruling on the instant
motion for preliminary injunction or stay of execution. Citing a state law that Defendants assert

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required them to maintain the confidentiality of the drugs used in executions, Defendants
withheld information relating to their sources of pentobarbital in direct violation of two orders of
this Court. Only after the undersigned issued an order denying Defendants’ motion to reconsider
did Defendants supply Plaintiffs’ counsel with discovery relating to the sources of the drugs on
Saturday, November 3, 2012.
Defendants’ disclosure revealed that their source of pentobarbital is a compounding
pharmacy, and that the drugs were compounded for the DOC. (See Hrg. Nov. 5, 2012, Pl. Exh.
49 at 16.) Drug compounding is a process by which a pharmacy manufactures drug products
pursuant to an individual prescription from raw ingredients. According to Dr. Waisel’s
testimony at the November 5, 2012 hearing, drug compounding is a lightly regulated industry,
and is regulated differently in each state. Dr. Waisel testified that compounded drugs need not
be reviewed by the United States Food and Drug Administration, and that the use of
compounded drugs involves an increased risk that drugs will be impure or less potent than drugs
subject to manufacturing standards, oversight, and testing. In further support of his argument,
Plaintiff Michael submitted a peer-reviewed article outlining the essential differences between
FDA-approved drugs and compounded drugs and recommending prescribers to prescribe FDAapproved drugs when available. (Hrg. Nov. 5, 2012, Pl. Exh. 51.)
At oral argument, Plaintiff Michael’s counsel argued that due to Defendants’ eleventh
hour disclosure, Michael has not had the time to fully develop a claim that the use of
compounded drugs creates an unconstitutional risk that he will suffer unconstitutionally severe
pain. Thus, Plaintiff Michael, referencing his pending motion for sanctions, argued that the
Court should sanction Defendants by barring them from contesting his claim that compounding

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raises serious and substantial risks of pain in the execution. In response, counsel for Defendants
argued that Defendants’ noncompliance with discovery orders was not in bad faith but was the
result of demanding time constraints and a serious concern that the Court’s order would require
them to violate state law, not an insignificant event. While the Court will write separately to
address the pending motion for sanctions, the Court finds that Defendants’ conduct does not
warrant the requested sanction. Thus, the Court will not bar Defendants from opposing Plaintiff
Michael’s claim related to compounded drugs.
While the Court recognizes Plaintiff Michael’s concerns about the use of compounding
drugs, his challenge related to the quality of the pentobarbital amounts to little more than an
argument about the best practices in execution. In fact, Defendants produced a laboratory report
indicating that the pentobarbital that they intend to use in Mr. Michael’s execution has a potency
of 96.6%. (Hrg. Nov. 5, 2012, Pl. Exh. 52.) Plaintiff Michael argues that this report does not
address the concerns that compounding raises, including what substances the compounding
pharmacy or compounding manufacturer may have mixed with the drug. Nonetheless, the Court
is satisfied that the report casts significant doubt on Plaintiff Michael’s argument that the
compounded drugs may be less pure than FDA-regulated drugs.
Additionally, the Third Circuit evaluated a similar claim in Jackson II, 656 F.3d at 162166. In Jackson II, the plaintiffs moved for a stay of execution, arguing that Delaware’s use of
pentobarbital violated the Eighth Amendment because the drug was not approved by the FDA
for use as an anesthetic. Id. at 162. The Third Circuit affirmed the United States District Court
for the District of Delaware’s denial of a stay of execution, noting that several other courts have
held that the use of pentobarbital in lieu of sodium thiopental is constitutional. Id. at 164-166.

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The district court considered, inter alia, evidence that a 5,000 mg dose of pentobarbital would be
lethal to a normal person, and considered Delaware’s use of a consciousness check prior to
administration of the second and third drugs. See id. at 163. Given the similarity of
Pennsylvania’s protocol – which calls for the use of 5,000 mg of pentobarbital, and calls for a
consciousness check after administration of the pentobarbital – to Delaware’s protocol with
respect to the use of pentobarbital, coupled with the lack of evidence supporting Plaintiff’s
position, the Court declines to find that the use of unregulated pentobarbital creates a
constitutionally unacceptable risk of harm. While use of an FDA-approved drug may be ideal,
federal courts are not “boards of inquiry charged with determining ‘best practices’ for
executions.” Baze, 553 U.S. at 51.
Plaintiff Michael has not satisfied his burden of proving that the use of compounded
drugs violates the Constitution; thus, the Court finds that he has not shown that he is likely to
succeed on this claim.
c.

Safeguards Against Last-Minute Stay

Next, Plaintiff Michael argues that the execution protocol is unconstitutional because it
does not provide a stabilization or rescue procedure in the event that a stay is issued after the
execution has commenced. (Doc. No. 141 at 11-12.) Mr. Michael notes that the Kentucky
protocol at issue in Baze set forth a procedure for resuscitation. Delaware’s lethal injection
protocol also sets forth a procedure for stabilization in the event that a last-minute stay of
execution is ordered. (Doc. No. 108-12 at 10.)
While other states provide for a procedure to resuscitate inmates in the event that a lastminute stay of execution is ordered after drugs have been administered to the inmate, Plaintiff

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Michael has provided no support for the proposition that such a procedure is required under the
Eighth Amendment. The death penalty is, by definition, irreversible. Pennsylvania’s lethal
injection protocol contains safeguards to ensure that no stay of execution has been ordered prior
to administration of the lethal injection drugs. Namely, the Pennsylvania lethal injection
protocol requires the secretary of the DOC to ensure that no stay of execution has been ordered
prior to giving the final order for the execution to proceed. (Doc. No. 108-4 at 13.) “There must
come a time, even when so irreversible a penalty as that of death has been imposed upon a
particular defendant, when the legal issues in the case have been sufficiently litigated and
relitigated that the law must be allowed to run its course.” Evans v. Bennett, 440 U.S. 1301,
1303 (1979). In Pennsylvania, the DOC has determined that the death penalty becomes
irreversible after the Secretary of the DOC determines that no stay of execution has been
ordered. The fact that other states provide a mechanism for resuscitation or stabilization of an
inmate in the event that a stay of execution is ordered after the lethal drugs have been
administered does not mean that all lethal injection protocols without such a procedure are
unconstitutional.
Thus, the Court finds that Plaintiff Michael has not demonstrated a likelihood of success
on his claim that the absence of a resuscitation procedure in Pennsylvania’s lethal injection
protocol violates the Constitution.
d.

LIT Members’ Training

Next, Plaintiff Michael sets forth three complaints about the LIT and the training of the
LIT members. Specifically, Michael argues that members of the LIT are not adequately trained
or qualified to assess consciousness, administer general anesthesia, or use the EEG monitor.

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(Doc. No. 141 at 12-16.) At oral argument, Plaintiff Michael also addressed an additional
concern regarding the labels and color coding used on the lethal injection drugs. These concerns
all relate to whether the inmate is sufficiently anesthetized to avoid a “constitutionally
unacceptable risk” of pain. Baze, 553 U.S. at 53. In Baze, Chief Justice Roberts explained that
“failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a
substantial, constitutionally unacceptable risk of suffocation from the administration of
pancuronium bromide and pain from the injection of potassium chloride.” Id. As in Baze,
Plaintiff Michael’s Eighth Amendment claim “hinges on the improper administration of the first
drug,” which is pentobarbital in this case. Id.
i.

Assessing Consciousness

Plaintiff Michael’s first complaint with respect to the LIT members’ training is that the
LIT members do not adequately understand the need for unconsciousness, and that they are not
adequately trained to assess consciousness. The first part of Mr. Michael’s argument is
unpersuasive; it is not necessary that the LIT members understand the importance of
unconsciousness in the procedure. The LIT members are not given discretion as to when to
carry out the different steps of the lethal injection protocol. Instead, the protocol details each
step of the lethal injection process, and directs the LIT members when to move on to the next
step. The protocol requires the LIT to inject the inmate with an anesthetic, either 5,000 mg of
pentobarbital or 3,000 mg of sodium thiopental, prior to injecting the second and third drugs.
(Hrg. Nov. 5, 2012, Pl. Exh. 14 at 30.) The protocol also requires the LIT to ensure
unconsciousness through a tactile stimulation and, if available, the use of an EEG monitor. (Id.
at 30-31.) Regardless of whether the LIT members themselves understand the importance of

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ensuring unconsciousness, the lethal injection protocol sets forth discrete steps to ensure that an
inmate is unconscious prior to administration of the second and third drugs.
The proper inquiry is whether the LIT members are able to adequately carry out the
procedures required by the lethal injection protocol, and whether the procedures themselves are
sufficient. Plaintiff Michael’s complaints do not relate to the qualifications and training required
by the protocol, which requires that all LIT members be trained health care professionals who
have completed intravenous therapy training and are experienced in performing venipuncture.
(See id. at 9.) Rather, Plaintiff Michael argues that the LIT members do not fully understand the
need for inmates to be unconscious prior to injection of the second and third drugs. However,
deposition testimony of the LIT members indicates that they do, in fact, understand the
importance of ensuring consciousness through the use of both an EEG machine and a tactile
consciousness check.
LIT member A testified that the LIT members all received training on how to use an EEG
monitor and practiced using the monitor in training sessions. (Hrg. Nov. 5, 2012, Pl. Exh. 7 at
17-18.) LIT member A also testified that the patient state index must be 9 or below for the
inmate to be sufficiently anesthetized. (Id. at 20-21.) Member A further testified about the
procedure for ensuring consciousness, explaining that the tactile consciousness check is a
safeguard that is used in addition to the EEG monitor to ensure that the inmate is unconscious.
(Id. at 62.) Similarly, LIT members B and C testified about the training that they received
related to the use of an EEG machine and their understanding of the consciousness check. (Hrg.
Nov. 5, 2012, Pl. Exh. 8 at 26, 42-45; Hrg. Nov. 5, 2012, Pl. Exh. 9 at 18-23, 39-41.) Upon
reviewing the testimony of the LIT members and other evidence of record, the Court finds that

18

Plaintiff Michael has not proven a likelihood of success on the merits with respect to his claim
that the LIT members are inadequately trained because they do not understand the importance of
ensuring consciousness.
Plaintiff Michael also asserts that the consciousness check described in the protocol is
inadequate to ensure unconsciousness, arguing that the tactile stimulations required by the
consciousness check are ineffective because the LIT members are not trained or qualified to
assess the inmate’s reactions to the stimulations. According to Pennsylvania’s lethal injection
protocol, after the LIT members inject the inmate with an anesthetic and flush the IV lines with a
saline solution, the LIT must ensure that the inmate is unconscious prior to moving on to the next
steps. If an EEG monitor is being used, the LIT will observe the EEG monitor to determine if
the PSI is nine or less prior to moving on to a tactile consciousness check. If an EEG monitor is
not being used, the LIT will wait two minutes before moving on to the consciousness check.
Next, the Capital Facility Manager or designee will call the inmate’s name in a loud voice and
observe the inmate for a reaction, a member of the LIT will assess the inmate by touching the
inmate, shaking the inmate’s shoulder, and brushing the inmate’s eyelashes. The Capital Facility
Manager or designee and the LIT will closely monitor the inmate and must agree that the inmate
is unconscious.
The use of such a procedure was endorsed by Justices Ginsburg and Souter in Justice
Ginsburg’s dissent in Baze, 553 U.S. at 118 (Ginsburg, J., dissenting). Justice Ginsburg noted
that Kentucky’s protocol did not require anyone to call the inmate’s name, shake the inmate,
brush his eyelashes, or apply noxious stimulus to gauge his response. Id. Justice Ginsburg,
citing a number of states that implement similar safeguards, further explained that such a

19

consciousness check could be easily implemented and could reduce the risk of dreadful pain. Id.
at 119. The plurality in Baze rejected the necessity of a systematic mechanism for monitoring
the anesthetic depth of the prisoner. Id. at 58-59 (Roberts, C.J.). Chief Justice Roberts explained
that a proper dose of the anesthetic obviates the concern that a prisoner will not be sufficiently
sedated, explaining that the “risks of failing to adopt additional monitoring procedures are . . .
even more ‘remote’ and attenuated than the risks posed by the alleged inadequacies of
Kentucky’s procedures designed to ensure the delivery of” the anesthetic, which was thiopental
in that case. Id. at 59. However, the plurality opinion also recognized that such tests may be
effective in determining whether the anesthetic has entered into the inmate’s bloodstream. Id. at
60. The performance of the consciousness check is, thus, an additional safeguard that is not
constitutionally required.
Delaware’s lethal injection protocol, which involves the use of a 5,000 mg dose of
pentobarbital as an anesthetic, implements a consciousness check similar to the one described in
Pennsylvania’s protocol. The district court reviewing Delaware’s lethal injection protocol relied
upon, inter alia, the use of this procedure in finding that the plaintiffs had failed to meet their
burden of showing that the administration of pentobarbital creates a demonstrated risk of severe
pain. Jackson v. Danberg, Civ. No. 06-300-SLR, 2011 WL 3205453, at *3 (D. Del. July 27,
2011). The Third Circuit affirmed the district court’s denial of a stay of execution in that case.
Jackson II, 656 F.3d at 163-66. Other courts have noted the importance of a consciousness
check in reducing the risk of unconstitutional pain in a three-drug protocol involving
pentobarbital. E.g., Pavatt, 627 F.3d at 1340; DeYoung v. Owens, 646 F.3d 1319, 1327 (11th
Cir. 2011).

20

Pennsylvania’s lethal injection protocol involves a dose of pentobarbital that other courts
have found to be more than sufficient to ensure unconsciousness. Further, Pennsylvania’s lethal
injection protocol requires members of the LIT to be trained health care professionals who have
completed intravenous therapy training and to be experienced in performing venipuncture. This
training in establishing IV lines significantly reduces any risk that the inmate with be
insufficiently anesthetized. The use of a consciousness check is an additional safeguard to
reduce the risk that an inmate will not be properly anesthetized. Deposition testimony of the
three LIT members, moreover, confirms that they have been trained in using an EEG machine,
and understand the necessary procedures for ensuring consciousness. Plaintiff Michael
presented no evidence to support a finding that the LIT members are inadequately trained to
assess unconsciousness.
Thus, the Court cannot find that Plaintiff Michael has proved that he is likely to succeed
on the merits of his claim relating to the consciousness check.
ii.

Administering General Anesthesia

Next, Plaintiff Michael argues that the LIT members are insufficiently trained or
qualified to administer general anesthesia. (Doc. No. 141 at 15.) In support of his argument,
Mr. Michael asserts that registered nurses may only administer general anesthesia if they are
certified to do so and are acting under the supervision of a physician. Pennsylvania’s lethal
injection protocol does not require LIT members to be registered nurses, and Plaintiff Michael
asserts that none of the LIT members are certified as registered nurses. Plaintiff Michael also
asserts that none of the LIT members are experienced in administering general anesthesia.
The Court need not determine whether the LIT members are authorized by state law to

21

administer general anesthesia in a normal clinical setting in order to rule on Plaintiff Michael’s
Eighth Amendment claim. Pennsylvania law requires the death penalty to be inflicted in certain
circumstances by injection of lethal drugs. 61 Pa.. Cons. Stat. § 4304. It is thus necessary that
someone be assigned the task of injecting the lethal drugs; “the power of a State to pass laws
means little if the State cannot enforce them.” McCleskey v. Zant, 499 U.S. 467, 491 (1991).
Plaintiff Michael’s claim related to the LIT members’ training in administering general
anesthesia was brought pursuant to the Eighth and Fourteenth Amendments’ prohibition of cruel
and unusual punishment. Thus, inquiry into the propriety of the LIT members’ actions under
state law is not essential to the Court’s analysis of this claim.
However, whether the LIT members are sufficiently experienced to administer anesthesia
is relevant to the Court’s inquiry into whether the lethal injection protocol passes constitutional
muster. Pennsylvania’s lethal injection protocol requires its members to be trained health care
professionals who have completed intravenous therapy training and to be experienced in
performing venipuncture. (Doc. No. 108-3 at 1.) The Court in Baze noted that Kentucky used a
phlebotomist and an EMT, “personnel who have daily experience establishing IV catheters for
inmates in Kentucky’s prison population.” 553 U.S. at 55. The IV team in Kentucky also
conducted at least 10 practice sessions per year, involving siting IV catheters into volunteers. Id.
The Supreme Court noted that “[t]he qualifications of the IV team . . . substantially reduce the
risk of IV infiltration.” Id. at 55-56. Thus, the Supreme Court placed great import on the IV
team members’ ability to establish IVs, rather than their experience administering anesthesia
specifically.
Here, Plaintiff Michael has produced no evidence that the LIT members are insufficiently

22

qualified to establish IV lines. The lethal injection protocol requires that the members be
experienced in doing so. In fact, LIT member A testified that she starts IVs every day as part of
her job (Hrg. Nov. 5, 2012, Pl. Exh. 1 at 3), LIT member B testified that she inserts IVs into
patients “about a hundred [times] a day” (Hrg. Nov. 5, 2012, Pl. Exh. 2 at 3), and LIT member C
testified that she also inserts “about a hundred IVs a day” (Hrg. Nov. 5, 2012, Pl. Exh. 3 at 4).
As the Court explained above, the lethal injection protocol leaves very little discretion to the LIT
members throughout the lethal injection process. The LIT members are not required to make
decisions regarding how much of a particular drug to give an inmate, or when to do so. With
respect to administering anesthesia, the lethal injection protocol simply requires the LIT
members to establish an IV line, ensure that no stay of execution has been ordered, and
administer a predetermined amount of sodium thiopental or pentobarbital from color-coded and
labeled syringes. No evidence on the record would support a finding that the LIT members are
insufficiently trained to carry out these tasks.
Thus, the Court finds that Plaintiff Michael has not satisfied his burden of proving that he
is likely to succeed on his claim that the LIT members’ training and qualifications regarding the
administration of general anesthesia creates an unconstitutional risk of pain.
iii.

Use of an EEG Monitor

Next, Plaintiff Michael argues that the LIT members are insufficiently trained or
qualified to interpret an EEG machine. (Doc. No. 141 at 15-16.) He asserts that the LIT
conducts a consciousness check only after the EEG monitor displays a PSI of nine or less, and
that the this threshold reliance on the EEG to determine whether the inmate has reached a safe
level of anesthesia before administration of the second and third drugs creates a substantial risk

23

of serious harm. Plaintiff’s expert, Dr. Waisel, offered his opinion that the inexperience of the
LIT members limits the monitor’s usefulness and may falsely reassure the LIT. (Hrg. Nov. 5,
2012, Pl. Exh. 32 at 4.) Specifically, Dr. Waisel noted that the LIT members only received
practice using the EEG monitor on a fully conscious person. (Id.) As with many of Plaintiff
Michael’s other claims, these arguments amount to little more than an argument that more
training would be helpful or would improve the reliability of the protocol.
As described above, the lethal injection protocol requires that a consciousness check be
conducted either after two minutes have passed following administration of the anesthetic if an
EEG monitor is not being used, or after the EEG monitor displays a PSI of nine or less, as
indicated by displaying the colors purple or blue. At their respective depositions, the LIT
members described their training related to the use of an EEG machine, including placing the
electrodes of the EEG monitor on a person, reading the monitor, and familiarizing themselves
with the machine. (See Hrg. Nov. 5, 2012, Pl. Exh. 7 at 17-18, 20-21, 25; Hrg. Nov. 5, 2012, Pl.
Exh. 8 at 26; Hrg. Nov. 5, 2012, Pl. Exh. 9 at 18-23.) The Court notes that the burden is on
Plaintiff Michael to establish a likelihood of success, not on Defendants to prove that the LIT
members are adequately trained. Nothing in the LIT members’ deposition testimony casts
sufficient doubt on their training and qualifications with respect to using an EEG monitor to
create a constitutional problem. Further, nothing on the record suggests that any training beyond
that described by the LIT members is necessary for the proper use of an EEG machine.
Moreover, the use of an EEG machine is an additional safeguard that will be used only if an EEG
machine is available. Regardless of whether an EEG machine is used or not, the LIT members
will conduct a consciousness check.

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Further, there appears to be no legal support for the proposition that the Constitution
requires those carrying out executions to be specifically trained or qualified in the use of an EEG
machine. Neither the Kentucky protocol, upheld by the Supreme Court in Baze, nor the
Delaware protocol, upheld by the Third Circuit in Jackson II, required the use of an EEG
machine; in fact, the use of such a machine was not discussed in either of those decisions. Baze,
553 U.S. 35; Jackson II, 656 F.3d 157.
Given the lack of legal or factual support for Plaintiff Michael’s claim, the Court finds
that he has failed to establish a likelihood of success on his claim that the LIT members’ training
and qualifications regarding the use of EEG machines creates an unconstitutional risk of pain.
iv.

Color Coding and Labeling

At the November 5, 2012 hearing, Plaintiff Michael’s counsel also elicited testimony and
presented argument relating to the LIT members’ training with respect to the colors and labeling
of the drugs to be used during an execution. Neither Plaintiff Michael nor Defendants have
submitted any briefing on this issue, but Dr. Waisel’s expert report contains an opinion about the
colors and labels on the lethal injection drugs. Dr. Waisel explained that the color coding used
to label the drugs is inconsistent with the standard drug labeling in the field of anesthesiology.
(Hrg. Nov. 5, 2012, Pl. Exh. 32 at 9.) Dr. Waisel opined that the LIT members may be confused
due to this inconsistency. Plaintiff Michael has presented no evidentiary support for a finding
that the labeling of the drugs creates a significant risk of harming him, beyond the speculation of
Dr. Waisel. Dr. Waisel was accepted by the Court as an expert in the field of anesthesia, but he
is not an expert in human factors, cognitive abilities, or any other field that would qualify him to
offer an opinion on the adequacy of labels or of the LIT members’ ability to interpret the drug

25

labels.
Absent any evidence supporting Plaintiff Michael’s claim, the Court is satisfied that the
LIT members are sufficiently trained and qualified to read the labels on the lethal injection
drugs. Thus, Plaintiff Michael is not likely to succeed on a claim relating to the labeling of the
lethal injection drugs.
e.

Time Limit to Achieve Venous Access

Next, Plaintiff Michael asserts that the lethal injection protocol’s failure to place a time
limit on the LIT’s efforts to achieve venous access creates an unconstitutional risk of pain. (Doc.
No. 141 at 16-17.) Indeed, as Plaintiff Michael notes, the execution protocol at issue in Baze
placed a one-hour limit for the lethal injection team to attempt to insert catheters in the prisoner.
While such a limitation is an additional safeguard that would reduce the risk of pain, the
Supreme Court in Baze explained that “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.” 553 U.S. at 60-61. The Pennsylvania lethal injection protocol requires
members of the LIT to be experienced in venipuncture. Plaintiff has presented no evidence that
there is a significant risk that it will take the LIT members an unreasonably long amount of time
to establish venous access. Moreover, even if there is a remote risk that it will take the LIT
members longer than an hour to establish an IV line, to be actionable under the Eighth
Amendment there must be an objectively intolerable risk, “not simply the possibility of pain.”
Id. at 61-62.
Plaintiff Michael has not demonstrated a likelihood that he will succeed in proving an
objectively intolerable risk that he will suffer unconstitutional pain due to the lethal injection

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protocols failure to require venous access to be achieved within one hour.
f.

Deviations from Statute

Plaintiff Michael also asserts that the lethal injection protocol commands significant
deviations from the statute that authorizes and delineates the manner of execution. (Doc. No.
141 at 17.) In support of his claim, Plaintiff Michael cites authority providing that significant
deviations from an execution protocol can violate the Eighth Amendment. See, e.g., Arthur v.
Thomas, 674 F.3d 1257, 1263 (11th Cir. 2012). However, while deviations from an execution
protocol that protects inmates from cruel and unusual punishment can create an unconstitutional
risk of pain, it does not necessarily follow that a protocol that deviates from a statute violates the
Eighth Amendment. The relevant inquiry is whether there is a substantial risk of severe pain.
Plaintiff Michael has failed to establish that the protocol creates a substantial risk of severe pain
in violation of the Eighth Amendment simply because it deviates from the statute that authorizes
the death penalty in Pennsylvania.
Upon consideration of all of Plaintiff Michael’s Eighth Amendment challenges to
Pennsylvania’s lethal injection protocol, the Court finds that he has not demonstrated a
likelihood of success on the merits on this claim. While Mr. Michael has noted some areas
where the protocol may be strengthened, “federal courts are not boards of inquiry charged with
determining best practices for execution.” Jackson II, 656 F.3d at 165 (quoting Baze, 553 U.S.
at 51 (internal quotation marks omitted)).
2.

Remaining Claims

Plaintiff Michael also brought three claims that were not raised in the class complaint in
this case: Claim II, a state law claim alleging that the protocol is invalid; Claim III, a due process

27

claim; and Claim IV, an access to counsel and the courts claim. Defendants do not respond to
the merits of Plaintiff Michael’s state law, due process, or access to counsel and the courts
claims, instead arguing: (1) that Plaintiff Michael cannot introduce new claims into this case as
an intervenor; (2) he has not satisfied the threshold exhaustion requirements for these claims; and
(3) these state-law claims are not cognizable in this Section 1983 case. (Doc. No. 161 at 25-26.)
The Court agrees that Plaintiff Michael may not introduce these new claims into this litigation as
an intervenor.
a.

Intervention

Rule 24(b) of the Federal Rules of Civil Procedure allows for “anyone” to permissively
intervene, “[o]n timely motion” if “given a conditional right to intervene by a federal statute” or
“has a claim or defense that shares with the main action a common question of law or fact.” Fed.
R. Civ. P. 24(b)(1)(A)-(B). Determining whether a motion for permissive intervention should be
granted is within the discretion of the district court. See PA Prison Soc’y v. Cortes, 622 F.3d
215, 232 (3d Cir. 2010); Hoots v. Pennsylvania, 672 F.2d 1133, 1135 (3d Cir. 1982). “In
exercising its discretion, the court must consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
For the reasons explained separately in the Court’s order on Plaintiff Michael and
Plaintiff Williams’s pending motion to intervene, the Court finds that the motion is not timely,
and that these additional claims do not satisfy the commonality requirement of Rule 24. First,
although discovery was still ongoing at the time that the instant motion was filed, this action was
instituted five years ago and the class was certified approximately two-and-a-half years ago.
(Doc. Nos. 1, 61.) Plaintiff Michael, or the class of Plaintiffs, had ample opportunity to seek

28

leave to add claims to this action during the protracted history of this case. Moreover, the
warrant scheduling Mr. Michael’s execution was issued on September 11, 2012, but the instant
motion was not filed until October 15, 2012, approximately three weeks before the date on which
Mr. Michael is scheduled to be executed. To require Defendants to address the newly raised and
legally complex claims included in the intervenor complaint literally at the eleventh hour would
unfairly distract them from their ability to litigate the underlying Eighth Amendment claims that
have defined this action since 2007 and would detract from the Court’s orderly and timely
consideration of matters that have been pending for five years.
Further, although it is clear that the subject of Michael’s new claims relate to the
administration of the death penalty – the same broad subject matter at issue in the underlying
litigation – the newly raised claims lack “common questions of law and fact” with the underlying
claims in this action. The original complaint in this case raises an Eighth Amendment challenge
to the lethal injection protocol based on an alleged risk of unnecessary pain and suffering. (Doc.
No. 1.) In the intervenor complaint, Mr. Williams and Mr. Michael attempt to raise three
additional distinct claims. First, they bring a state law claim relating to the statutory authority of
the DOC and the manner in which the lethal injection protocol was adopted under state
regulatory law governing notice and publication and agency authority to act by policy
statements. Additionally, Plaintiffs Michael and Williams frame a due process claim based on
these allegations, as well as a claim related to their right to access counsel and the courts. The
gravity of these claims is no substitute for commonality. Permissive intervention is permitted
only “when no additional issues are presented to the case, when the intervenor’s claims are
virtually identical to class claims, and when intervention would strengthen the adequacy of class

29

representation.” Eckert v. Equitable Life Assurance Soc’y of U.S., 227 F.R.D. 60, 64 (E.D.N.Y.
2005) (internal citations and quotation marks omitted).
The Court has assumed that these eleventh hour claims are advanced in good faith and
that Plaintiffs Michael and Williams have not delayed their presentation for tactical advantage.
Nevertheless, allowing Mr. Williams and Mr. Michael to intervene to litigate these additional
claims would unfairly expand the scope of the litigation, risking undue delay in this matter where
time is of the essence. Permitting the addition of these new claims would essentially allow
Plaintiffs Michael and Williams to initiate an entirely new lawsuit, a result not intended by Rule
24(b). See Washington Elec. Co-op., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 97
(2d Cir. 1990) (“[Rule 24(b)] is not intended to allow for the creation of whole new suits by
intervenors.”). Accordingly, the Court, in its discretion, will decline to allow Plaintiffs Michael
and Williams to add these additional claims as intervenors, as this would substantially expand
the scope of the main action and unduly complicate and confuse the underlying claims.
Thus, Plaintiff Michael is not likely to succeed on the merits of these claims. He has not
demonstrated a “reasonable likelihood that [he] will ultimately win the relief [he] seek[s],”
because the Court will not permit him to add these claims to this lawsuit. See N. Pa. Legal
Servs., 513 F. Supp. at 681.
b.

Exhaustion of Federal Claims

Moreover, even if the Court were to allow Plaintiff Michael to add these additional
claims, he is not likely to succeed on his additional federal claims because he has not exhausted
his administrative rights with respect to the new federal claims. Pursuant to the exhaustion
requirements of the Prison Litigation Reform Act (PLRA), 43 U.S.C. § 1997e(a), “[n]o action

30

shall be brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” Plaintiff Michael asserts that his due
process and access to counsel and the courts claims do not relate to the conditions of his
confinement, and that no meaningful administrative remedies exist for him to pursue his claims.
Both of these arguments have been rejected by the courts. First, the Third Circuit has
held that there is no futility exception to the mandates of Section 1997e. Nyhuis v. Reno, 204
F.3d 65, 67, 78 (3d Cir. 2000) (“[T]he PLRA amended § 1997e(a) in such a way as to make
exhaustion of all administrative remedies mandatory – whether or not they provide the
inmate-plaintiff with the relief he says he desires in his federal action.”). Second, the PLRA’s
“exhaustion requirement applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege excessive force or some
other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The Supreme Court has stated that
the PLRA applies to Section 1983 claims challenging a prisoner’s method of execution. Nelson
v. Campbell, 541 U.S. 637, 650 (2004). The Supreme Court’s decision in Nelson, along with its
later decision in Hill v. McDonough, 547 U.S. 573, 579 (2006), instruct that challenges to the
death penalty should be treated as either habeas corpus petitions, if they challenge the validity of
the sentence, or as conditions of confinement suits, if they challenge only the method of the
execution. As Plaintiff Michael’s additional claims challenge only the method of his execution
pursuant to the Pennsylvania lethal injection protocol, his claims must be treated as conditions of
confinement claims, subject to the exhaustion requirements of Section 1997e. Because Plaintiff
Michael does not dispute that he did not pursue administrative relief with respect to his due

31

process claim or access to counsel and the courts claim, he is not likely to succeed on the merits
of these claims.
c.

Supplemental Jurisdiction

Regarding the additional state law claim, even if the Court permitted Plaintiff Michael to
litigate this claim as an intervenor, the Court would decline to exercise supplemental jurisdiction
over the claim. Federal district courts have original jurisdiction only over certain claims,
including, inter alia, claims arising under the United States Constitution or federal law, and
certain claims between parties from different states. See 28 U.S.C. §§ 1331, 1332. Additionally,
district courts have supplemental jurisdiction over state law claims that are “so related to claims
in the action within such original jurisdiction that they form part of the same case or
controversy.” 28 U.S.C. § 1367. However, a district court “may decline to exercise
supplemental jurisdiction over a claim” if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
28 U.S.C. § 1367(c). Because the Court finds that Claim II of Plaintiff Michael’s motion and
intervenor complaint raises novel or complex issues of state law, the Court would decline to
exercise supplemental jurisdiction over the state law claim.
Plaintiff Michael’s state law claim would require the Court to engage in a complex
analysis of Pennsylvania’s Prison Litigation Reform Act, 42 Pa. Cons. Stat. § 6602(e);
Pennsylvania’s administrative laws, including the Commonwealth Documents Law, 45 P.S. §§

32

1101 et seq., the Regulatory Review Act, 71 P.S. §§ 745.1 et seq., and the Commonwealth
Attorneys Act, 71 P.S. § 732-402(5); Pennsylvania’s laws related to nurses’ and paramedics’
legal authority, 49 Pa. Code. §§ 21.12(a), 21.17(1)-(4), 28 Pa. Code. § 1005.11(b)&(d); in
addition to Pennsylvania’s lethal injection authorizing statute, 61 Pa. Cons. Stat. § 4304. Some
of the questions raised in the state law claim are issues of first impression, which the
Pennsylvania courts are in a better position to consider.
Thus, even if the Court permitted Plaintiff Michael to add this additional state law claim
to this action as an intervenor, the Court would decline to exercise supplemental jurisdiction over
the claim. Accordingly, Plaintiff Michael is not likely to succeed on the merits of his state law
claim in this Court.
B.

Irreparable Injury

Given Plaintiff Michael’s failure to establish a likelihood of success on the merits, the
other preliminary injunction factors also do not weigh in favor of granting a stay. The validity of
Plaintiff Michael’s death sentence has been litigated, and in some instances continues to be
litigated, in other forums. Those issues are not before the undersigned in this particular matter.
Given Plaintiff Michael’s failure to establish a likelihood of success on the merits, he is not
likely to suffer the irreparable harm that would occur if he were executed in violation of the
Constitution and subjected to punishment that is “cruel and unusual.” The Court finds the risk of
such harm to be remote. See Powell v. Thomas, 784 F. Supp. 2d 1270, 1283-84 (M.D. Ala.
2011) aff’d, 641 F.3d 1255 (11th Cir. 2011) cert. denied, 131 S. Ct. 2487 (2011) (finding that
plaintiff had not met his burden in proving irreparable harm where the risk of suffering
unconstitutional pain was not actual and imminent).

33

C.

Harm to Non-Moving Party and Public Interest

Finally, if a stay were granted absent a finding that Plaintiff Michael is likely to succeed
on the merits of his claim, it would harm Defendants and would not be in the public interest.
The Supreme Court has recognized that a state has a “strong interest in enforcing its criminal
judgments without undue interference from the federal courts.” Hill, 547 U.S. at 384. Where
Plaintiff Michael has not established a likelihood of success on the merits of his claim related to
the lethal injection protocol, a stay of his execution would have practical harms to the DOC,
which has taken significant steps to prepare for Plaintiff Michael’s execution on the scheduled
date, rather than a later date.
Moreover, it is not in the public interest to stay an execution absent a showing that
Plaintiff Michael is likely to succeed on the merits of his constitutional challenge to
Pennsylvania’s method of execution. As Chief Justice Roberts explained in Baze:
Reasonable people of good faith disagree on the morality and
efficacy of capital punishment, and for many who oppose it, no
method of execution would ever be acceptable. But as Justice
Frankfurter stressed in Resweber, “[o]ne must be on guard against
finding in personal disapproval a reflection of more or less prevailing
condemnation.” 329 U.S., at 471, 67 S.Ct. 374 (concurring opinion).
This Court has ruled that capital punishment is not prohibited under
our Constitution, and that the States may enact laws specifying that
sanction. “[T]he power of a State to pass laws means little if the State
cannot enforce them.” McCleskey v. Zant, 499 U.S. 467, 491, 111
S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Baze, 553 U.S. at 61. Cognizant of these concerns, the Court recognizes that it is not in the
interest of the public for a federal court to interfere with the Commonwealth’s method of
execution where capital punishment has been held to be constitutional and where Plaintiff
Michael has not established a likelihood of success on the merits of his Eighth Amendment

34

claim. Moreover, the Court recognizes the “powerful and legitimate interest in punishing the
guilty, an interest shared by the [Commonwealth] and the victims of crime alike.” Calderon v.
Thompson, 523 U.S. 538, 556, (1998). Thus, the potential harm to Defendants and the public
interest weigh against a stay of execution in this case.
V.

CONCLUSION
A federal district court can order a stay of execution where a state’s execution would not

comport with the Constitution. In order to grant such relief, the Court must find a likelihood of
success on the merits and irreparable injury in the absence of a stay. The Supreme Court of the
United States and the United States Court of Appeals for the Third Circuit have offered
significant guidance on claims challenging methods of execution. In order to succeed on the
merits of his Eighth Amendment claim, Plaintiff Michael would need to prove a substantial risk
that he would suffer serious pain and needless suffering. Plaintiff Michael has failed to meet this
burden. He has also failed to establish that he is likely to succeed on the additional claims that
he attempted to bring into this litigation as an intervenor, mere weeks before his scheduled
execution. Absent a finding that he is likely to succeed on the merits of his claims, the Court
cannot grant the relief that Plaintiff Michael requests. Accordingly, the Court will deny his
motion for preliminary injunction or stay of execution.
An order consistent with this memorandum follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRANK ROBERT CHESTER, et al.,
Plaintiffs
v.
JOHN E. WETZEL, et al.,
Defendants

:
:
:
:
:
:
:

Civil No. 1:08-cv-1261
(Chief Judge Kane)

ORDER
ACCORDINGLY, on this 6th day of November 2012, IT IS HEREBY ORDERED
THAT Plaintiff Hubert Michael’s motion for stay of execution, temporary restraining order, or
preliminary injunction (Doc. No. 139) is DENIED.

S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania

36