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Thomas Paul West, et al. v. Janice K. Brewer

December 21, 2011

THOMAS PAUL WEST, ET AL.
PLAINTIFFS,
v.
JANICE K. BREWER, ET AL. DEFENDANTS.



FINDINGS OF FACT AND CONCLUSIONS OF LAW and ORDER

Plaintiffs have filed a complaint pursuant to 42 U.S.C. § 1983 alleging violations of their rights to be free from cruel and unusual punishment and to due process and equal protection of the law based on Arizona's implementation of its lethal injection protocol. Evidence was received and argument heard on December 5-7, 2011. The Court has also considered the parties' pre-hearing briefs and read the deposition transcripts submitted by the parties. The Court's findings of fact and conclusions of law follow. Almost all of the facts are stipulated or otherwise undisputed. Where these findings differ from the evidence of one side or the other, they are based on the evidence more persuasive to the Court.

I. Procedural Background

Plaintiffs are death row inmates under the supervision of the Arizona Department of Corrections ("ADC"). Plaintiff Todd Smith was sentenced to death for a crime committed after November 23, 1992, and therefore will be executed by lethal injection under A.R.S. § 13-757. Plaintiffs Gregory Dickens, Charles Hedlund, Robert Wayne Murray, and Theodore Washington were sentenced to death for crimes committed before November 23, 1992, and therefore may choose under A.R.S. § 13-757(b) whether to be executed by lethal injection or lethal gas. They have not yet chosen the method of execution. Plaintiff West was executed by lethal injection on July 19, 2011.

In 2007, Plaintiffs filed a § 1983 complaint challenging numerous aspects of Arizona's lethal injection protocol. That protocol was based on Department Order 710, dated November 1, 2007, and as modified by an exhibit submitted by the parties as part of a joint report to the Court. See Dickens v. Brewer, No. CV-07-1770-PHX-NVW, 2009 WL 1904294, at *1 & n.2 (D. Ariz. Jul. 1, 2009) (unpublished order). Department Order 710 stated, and continues to state, "These procedures shall be followed as written unless deviation or adjustment is required, as determined by the Director of the Arizona Department of Corrections."

The version of the protocol at issue in Dickens required sequential administration of: (1) sodium thiopental, an ultra fast-acting barbiturate that induces unconsciousness; (2) pancuronium bromide, a paralytic neuromuscular blocking agent that prevents any voluntary muscle contraction; and (3) potassium chloride, which causes skeletal muscle paralysis and cardiac arrest. On July 1, 2009, this Court granted summary judgment in favor of Defendants, concluding that Arizona's protocol was "substantially similar" to that approved by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), and thus did not subject inmates to a substantial risk of serious harm in violation of the Eighth Amendment. On February 9, 2011, the Court of Appeals for the Ninth Circuit affirmed.

Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). The appellate court's mandate issued 2 on April 18, 2011. 3 On June 10, 2011, ADC amended Department Order 710 to provide for the 4 administration of sodium pentothal (thiopental) or pentobarbital as the first of the three 5 sequentially-administered drugs in its lethal injection protocol. 6 On July 15, 2011, three days prior to Thomas West's scheduled execution, 7 Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that ADC's unwillingness 8 to follow its written lethal injection protocol and its substitution of pentobarbital for 9 sodium thiopental create a substantial risk they will suffer unnecessary pain during execution, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff West also filed an emergency motion for temporary restraining order and injunctive relief, seeking to enjoin Defendants from carrying out his execution.

On July 17, 2011, the Court declined to stay West's execution, finding no likelihood of success on the merits of Plaintiffs' complaint. See West v. Brewer, 2011 WL 2836754 (D. Ariz. Jul. 18, 2011) (unpublished order), aff'd, 652 F.3d 1060 (9th Cir.), cert. denied, 131 S. Ct. 3092 (2011). Following West's execution, the Court denied Defendants' motion for summary dismissal under Federal Rule of Civil Procedure 12(b)(6) and ordered expedited discovery.

On August 3, 2011, Plaintiffs filed an amended complaint. Plaintiffs allege that ADC's unwillingness to follow its written lethal injection protocol and its use of pentobarbital in place of sodium thiopental create a substantial risk they will suffer unnecessary pain during execution, in violation of the Eighth Amendment.*fn1 Plaintiffs further allege that ADC's unwillingness to follow its written lethal injection protocol violates their right to equal protection under the Fourteenth Amendment and that ADC's failure to provide notice of changes to its lethal injection protocol violates their right to due process under the Fourteenth Amendment. Plaintiffs seek equitable, declaratory, and injunctive relief to prevent Defendants from carrying out their executions until such time as Defendants can demonstrate that properly trained staff and medical personnel can properly implement Arizona's lethal injection procedures in a manner that complies with the Eighth Amendment.

7 On November 10, 2011, the parties each filed proposed findings of fact and 8 conclusions of law. Following a pretrial conference, the Court entered the parties' joint 9 amended pretrial order identifying the contested and uncontested facts and issues of law. A three-day bench trial was held December 5-7, 2011.

II. Undisputed Legal Standards

To prevail on a § 1983 claim, a plaintiff must show that, while acting under color of state law, the defendants deprived or will deprive him of a right secured by the Federal Constitution or laws of the United States. See Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).

The Eighth Amendment to the United States Constitution, applicable to the States through the Due Process Clause of the Fourteenth Amendment, provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Baze v. Rees, 553 U.S. at 47. Subjecting individuals to a risk of future harm-not simply actually inflicting pain-can qualify as cruel and unusual punishment under the Eighth Amendment. Id. at 49-50. The Eighth Amendment will be violated where there is a "substantial risk of serious harm" that is sure or very likely to cause pain and needless suffering. Dickens v. Brewer, 631 F.3d at 1144-46 (adopting plurality in Baze, 553 U.S. 35); see also Brewer v. Landrigan, 131 S. Ct. 445 (2010) (Mem.). The risk must be an "'objectively intolerable risk of harm' that prevents prison officials from pleading that they were 'subjectively blameless for purposes of the Eighth Amendment.'" Baze, 553 U.S. at 50 (citing Farmer v. Brennan, 511 U.S. 825, 842 (1994)).

In the context of carrying out an execution by lethal injection, if the State refuses 2 to adopt a proffered feasible, readily implemented alternative that significantly reduces a 3 substantial risk of severe pain, without a legitimate penological justification, such refusal 4 can be viewed as "cruel and unusual" under the Eighth Amendment. Baze, 553 U.S. at 5 52. A court reviewing the constitutionality of a state's written lethal injection protocol 6 must look beyond the facial constitutionality of the protocol when presented with 7 evidence of improper administration. Dickens, 631 F.3d at 1146. "[F]ailing a proper 8 dose of sodium thiopental that would render the prisoner unconscious, there is a 9 substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride." Baze, 553 U.S. at 53.

The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. State action burdening a fundamental right is subjected to strict scrutiny and will be sustained only if it is narrowly tailored to serve a compelling state interest. Zablocki v. Redhail, 434 U.S. 374, 388 (1978).

The Due Process Clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. "The touchstone of due process is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558 (1974). The procedural due process guarantee protects against the denial of fundamental procedural fairness. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). The substantive due process guarantee "protects against government power arbitrarily and oppressively exercised." Id. at 846 (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)).

IV. Undisputed Facts 2 A. Dickens Litigation 3 Arizona's current lethal injection protocol has its genesis in Dickens v. Brewer. 4 During the Dickens litigation, the parties engaged in good-faith discussions to resolve 5 some of the issues raised by Plaintiffs. A subsequently filed joint report indicated that 6 Defendants had agreed to modify Arizona's lethal injection protocol in the following 7 ways: (1) lethal chemicals will be administered by default through an intravenous ("IV") 8 peripheral line, not a central line in the femoral vein; (2) IV lines will be placed only by 9 medically licensed individuals with at least one year current and regular practice placing such lines;*fn2 (3) ADC will conduct license and background checks of Medical Team members annually and upon issuance of an execution warrant; (4) ADC will maintain any documentation establishing the qualifications and training of the Medical Team members; (5) ADC will use a clinical concentration of thiopental of 2.5%; (6) ADC will eliminate use of a "false" line; and (7) ADC will not permit Dr. Alan Doerhoff and Medical Team Member #3 to participate in future executions. See Pl.'s Ex. 173 at 3 & Attach. A.*fn3

This Court ultimately granted summary judgment in favor of Defendants, finding that the revised protocol did not subject inmates to a substantial risk of serious harm. In doing so, the Court considered the protocol "as written," including the agreed-upon amendments set forth in the parties' joint report. On appeal, Plaintiffs argued there was a substantial risk ADC will implement the protocol in an unconstitutional manner. The Ninth Circuit disagreed, finding "no evidence that Arizona will fail to follow it in future 2 executions." Dickens, 631 F.3d at 1149. 3 B. Post-Dickens Litigation 4 At the time of the Dickens litigation, Arizona had yet to carry out any executions 5 using the protocol found to be constitutionally adequate in that case. During the past 14 6 months, ADC has executed five prisoners by lethal injection and preparations were made 7 for a sixth, who obtained a stay. In addition to the instant complaint, three other prisoners 8 initiated federal litigation challenging the legality of ADC's lethal injection procedures. 9 On the eve of his execution in October 2010, Jeffrey Landrigan filed a § 1983 complaint describing a nationwide shortage of sodium thiopental and alleging that ADC had illegally imported the drug from a non-FDA-approved foreign manufacturer. The district court granted a temporary restraining order to permit further discovery regarding efficacy of the drug. Landrigan v. Brewer, No. CV-10-2246-PHX-ROS, 2010 WL 4269559 (D. Ariz. Oct. 25, 2010) (unpublished order). The Supreme Court reversed, noting there was "no evidence in the record to suggest that the drug obtained from a foreign source is unsafe" and "no showing that the drug was unlawfully obtained." Brewer v. Landrigan, 131 S. Ct. at 445. During the Landrigan litigation, Defendants claimed they legally obtained the drugs to be used in Landrigan's execution.

Subsequently, Arizona prisoner Daniel Cook filed a complaint similar to that of Landrigan, alleging an unconstitutional risk of serious pain from use of non-FDA approved sodium thiopental. The district court dismissed the complaint, finding it failed to sufficiently state a claim for relief. Cook v. Brewer, No. CV-10-2454-PHX-RCB, 2011 WL 251470 (D. Ariz. Jan. 26, 2011) (unpublished order). The Ninth Circuit affirmed and noted that the protocol's safeguards would prevent administration of the second and third drugs if the prisoner were not sufficiently anesthetized. Cook v. Brewer, 637 F.3d 1002, 1007-08 (9th Cir. 2011). Based on newly discovered evidence surrounding ADC's acquisition of the foreign-manufactured sodium thiopental, Cook refiled a complaint on the eve of his scheduled execution. The district court summarily dismissed the complaint, 2 and the Ninth Circuit affirmed. Cook v. Brewer, No. CV-11-557-PHX-RCB, 2011 WL 3 1119641 (D. Ariz. Mar. 28, 2011) (unpublished order), aff'd, 649 F.3d 915 (9th Cir.), 4 cert. denied, 131 S. Ct. 2465 (2011). During the Cook litigation, ADC asserted that it had 5 approval from the Drug Enforcement Administration ("DEA") to import the drugs. 6 On May 24, 2011, the night before the scheduled execution of Arizona prisoner 7 Donald Beaty, ADC notified Beaty and the Arizona Supreme Court that it intended to 8 substitute pentobarbital for sodium thiopental in carrying out Beaty's execution but that 9 the remaining aspects of the lethal injection protocol would be followed. ADC also indicated that the change was necessitated by information it had received that day from the Department of Justice, which indicated ADC's supply of sodium thiopental was imported without compliance with the Controlled Substance Act and could not be used.

Beaty filed a § 1983 complaint, asserting a due process violation from insufficient notice and arguing that a last-minute drug substitution would make it impossible for ADC to comply with the protocol's training requirement, thus subjecting him to a substantial risk of pain and suffering. This Court denied injunctive relief, concluding that the lack of practice with pentobarbital was insufficient to demonstrate a risk of serious harm in light of the protocol's safeguards ensuring the prisoner's anesthetization prior to administration of pancuronium bromide and potassium chloride. Beaty v. Brewer, 791 F.Supp.2d 678, 684 (D. Ariz.), aff'd, 649 F.3d 1071 (9th Cir.), cert. denied, 131 S. Ct. 2929 (2011).

C. Arizona's Protocol

ADC Department Order 710 establishes the procedures for planning and carrying out the execution of a person sentenced to death in Arizona. Department Order 710 states that it "shall be followed as written unless deviation or adjustment is required, as determined by the Director of the Arizona Department of Corrections." The order further states, "This Department Order outlines internal procedures and does not create any legally enforceable rights or obligations." Under section 710.02, subsection 1.1, the Division Director is responsible for the planning and overall direction of all pre-execution, execution, and post-execution activities. Robert Patton has been ADC's Division Director of Offender Operations ("Division Director") during the past five executions.
Attachment F to Department Order 710 governs the preparation and administration of chemicals when carrying out an execution as well as the composition and duties of the Medical Team.*fn4 Any Medical Team member must be a physician, physician's assistant, nurse, emergency medical technician ("EMT"), paramedic, military corpsman, phlebotomist, or other medically trained personnel including those trained in the United States Military. All Medical Team members also must have at least one year of current and relevant professional experience in their assigned duties on the Medical Team. Section 710.04, subsection 1.9.5.1 of Department Order 710 states that the Medical Team shall consist of volunteers whose primary duties include administering IVs as part of their employment. Two Medical Team members ("IV team") will be assigned the responsibility of inserting IV catheters.

Selection of the Medical Team members must include a review of the proposed team member's professional qualifications, training, experience, professional licenses and certifications, criminal history, and personal interview. Licensing and criminal history reviews must be conducted prior to contracting, annually, and upon the issuance of an execution warrant. In addition, IV team members and non-medically licensed team members must participate in a minimum of ten execution rehearsals per year and at least two rehearsals prior to participating in an actual execution. Any documentation 1 establishing qualifications and training of Medical Team members shall be maintained by 2 the Department Director or designee. 3 IV team members are to site and insert a primary IV catheter and a backup IV 4 catheter in two separate locations in the prisoner's peripheral veins utilizing appropriate 5 medical procedures. The insertion sites in order of preference are: arms, hands, ankles, 6 and feet, as determined to be medically appropriate by the Medical Team Leader. If in 7 the opinion of the Medical Team Leader it is not possible to reliably place a peripheral 8 line, a Medical Team member may utilize a percutaneous central line in the inmate's 9 femoral vein in the thigh. Upon issuance of a warrant, the inmate shall be physically inspected to predetermine appropriate venous access locations. During an execution, the IV catheter in use shall not be covered and shall remain visible throughout the procedure.

D. Medical Team

Two Medical Team members participated in the executions of Jeffrey Landrigan, Eric King, Donald Beaty, Richard Bible, and Thomas West: Medical Team Member IV ("MTM-IV") and Medical Team Leader ("MTL"). ADC Director Charles Ryan has admitted that he conducted the last five executions with full knowledge that at least one of the Medical Team members did not hold a medical license and did not administer IVs in his current employment.
MTM-IV is currently employed with ADC and has been a correctional officer since 1996. His primary duties do not include administering IVs or preparing drugs as part of his regular employment. MTM-IV served as a corpsman from 1988 until 1996 and was also an EMT while in the military. MTM-IV has no specific recollection of his corpsman or EMT training but does recall learning how to set an IV line. ADC maintained no documentation concerning MTM-IV's qualifications and did not conduct a professional license or criminal history check before selecting him to participate on the Medical Team or before each execution. MTM-IV was charged with DUI in 2008 and paid a fine for reckless driving. He was also arrested for consuming liquor in public in 2000 and for writing a bad check in 1984 or 1985.

Before Landrigan's execution, MTM-IV received a telephone call from his warden and ADC Director Ryan asking whether he knew how to start an IV and whether he would have a problem doing it for an execution. MTM-IV was not asked any other questions.Division Director Patton believed MTM-IV was ...


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