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First Amendment Coalition of Arizona, Inc v. Ryan

United States District Court, D. Arizona

May 18, 2016

First Amendment Coalition of Arizona, Inc.; Charles Michael Hedlund; Graham S. Henry; David Gulbrandson; Robert Poyson; Todd Smith; Eldon Schurz; and Roger Scott, Plaintiffs,
Charles L. Ryan, Director of ADC; James O’Neil, Warden, ASPC - Eyman; Greg Fizer, Warden, ASPC - Florence; and Does 1-10, Unknown ADC Personnel, in their official capacities as Agents of ADC, Defendants.


          Neil V. Wake United States District Judge

         This action challenges Arizona’s way of executing death row inmates. Before the court is Defendants’ motion to dismiss Plaintiffs’ second amended complaint, argued on April 7, 2016. (Doc. 98.) The motion will be granted in part and denied in part.

         Plaintiffs are seven Arizona death row inmates and the First Amendment Coalition of Arizona, Inc., a non-profit corporation made of news organizations dedicated to free speech, accountable government, and public participation in civic affairs. (Doc. 97, ¶ 10.) The second amended complaint raises eight claims under 42 U.S.C. § 1983. (Doc. 97.) Plaintiffs challenge Arizona’s execution process and its “lack of transparency, ” including the use of a paralytic agent in the three-drug lethal injection protocol, on First Amendment, Eighth Amendment, due process, and equal protection grounds. (Id. at 3.) The defendants are the Director of the Arizona Department of Corrections and two wardens. They will be referred to as “the Department” or “the State, ” the entities answerable for their actions. They move to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.


         A motion to dismiss is a challenge to the legal sufficiency of the plaintiff’s pleadings. Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint need include “only enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         On such a motion, all allegations of material fact are assumed to be true and construed in the light most favorable to the non-moving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, that does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The details of the complaint must permit the court to infer more than a mere possibility of conduct for which the law gives a remedy. Id. If the plaintiff’s pleadings fall short of this standard, dismissal is warranted.


         Arizona law requires execution by lethal injection for capital crimes committed after 2000, A.R.S. § 13-757(A), which “shall be administered under such procedures and supervision as prescribed by law.” Ariz. Const. art. XXII § 22. In fact, nothing in the Arizona Revised Statutes or the Arizona Code of Regulations states any other substantive standards or procedural requirements for executions. The Department states its protocols in a Departmental Order which, though generally written in mandatory language, allows the Department to deviate anytime in any way it thinks necessary.

         A. Arizona’s Current Execution Procedures

         The execution procedures of the Arizona Department of Corrections are set forth in Department Order 710, which became effective on October 23, 2015. (Doc. 98, Ex. A.) Department Order 710 allows four lethal injection protocols: two one-drug protocols using pentobarbital or sodium pentothal (Protocols A and B) and two three-drug protocols, one using midazolam as a sedative (Protocol C) and one using sodium pentothal (Protocol D). Protocols C and D both use a paralytic as the second drug, to be administered before the final drug, potassium chloride. At issue in this litigation is Protocol C, which consists of (1) 500 mg of midazolam, (2) 100 mg of vecuronium bromide, rocuronium bromide, or pancuronium bromide, and (3) 240 mEq of potassium chloride.

         In three-drug lethal injection protocols such as Protocol C, the first drug is intended to produce a state of unconsciousness such that the prisoner is insensate to pain that would be caused by the later drugs. See Glossip v. Gross, 135 S.Ct. 2726, 2741 (2015). The second drug “is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration.” Baze v. Rees, 553 U.S. 35, 44 (2008). The third drug “interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Id. “It is uncontested that, failing a proper dose of [the first drug] 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. at 53.

         Midazolam is a sedative in the benzodiazepine family of drugs. (Doc. 97, ¶ 135.) Arizona, along with other states, included midazolam in its lethal injection protocol when the barbiturates sodium thiopental and pentobarbital became unavailable. (Id., ¶¶ 32-38.)

         B. Recent Changes to and Deviations from Arizona’s Execution Procedures

         Although Department Order 710 establishes execution procedures, the first paragraph retains discretion to deviate from the procedures whenever deemed necessary.

         The clause states:

These procedures shall be followed as written unless deviation or adjustment is required, as determined by the Director of the Arizona Department of Corrections (Department). This Department Order outlines internal procedures and does not create any legally enforceable rights or obligations.

(Doc. 98, Ex. A at 002.) This clause was not included in the version of Department Order 710 effective November 5, 2004, Dickens v. Brewer, 07-CV-01770-NVW, Doc. 108-1 at 26, but similar provisions have been included since at least 2008, id. at 2.

         In recent history, the Department has deviated from its published execution procedures in ways ranging from minor to fundamental. It has successfully defended litigation in district court based on the Protocol as written but then deviated before the execution. It has changed its Protocol at oral argument in the court of appeals, showing the litigation in district court was hypothetical, to get a favorable ruling from which to negotiate with the court of appeals about what it really will do. It has deviated in the course of an execution without explanation.

         In 2007, the State sought a warrant of execution for Jeffrey Landrigan. (Doc. 97, ¶¶ 50-51.) While the application for the warrant was pending, several inmates filed a complaint challenging the lethal injection procedures then in effect. Dickens v. Brewer, 07-CV-01770-NVW. During that litigation, the Department amended its protocol twice after conducting discovery. (Doc. 97, ¶ 52.) The Department agreed to amend its protocol to address the concerns plaintiffs raised. The court ultimately granted summary judgment for the Department, finding that when considering the Department’s averments and promises in its briefing and oral argument, the protocol was substantially similar to that upheld in Baze. (Id.)

         The State again sought a warrant of execution for Landrigan. (Id., ¶ 53.) The Department’s protocol still prescribed a three-drug combination with sodium thiopental as the first chemical. (Id.) By this time, however, the vendors relucted and a nationwide shortage of sodium thiopental developed. The Department refused to disclose the provenance of the drug it intended to use except to confirm that it was not manufactured by Hospira, the only FDA-approved domestic manufacturer. (Id., ¶¶ 54-55.) The district court granted a temporary stay of execution to allow Landrigan to challenge the use of non-FDA-approved sodium thiopental, Landrigan v. Brewer, 10-CV-2246-ROS, Doc. 21, and the Ninth Circuit affirmed. (Doc. 97, ¶ 56.) The Supreme Court then vacated the stay, and Landrigan was executed. (Id.) After Landrigan was declared dead, the Department continued to inject additional doses of backup chemicals into his body until the physician-executioner warned that further injections could rupture his vena cava. (Id.)

         Following Landrigan’s execution, the Ninth Circuit heard oral argument in Dickens. 631 F.3d 1139 (9th Cir. 2011). The record included testimony that a medical team member responsible for carrying out executions “knowingly ‘improvised’ the doses of lethal injection drugs, adhered to no set protocol, and kept no records of procedures.” Id. at 1147. During oral argument, however, the Department contended that any deficiencies in its protocol had been cured and that it was purely speculative to believe that they would not follow their procedures in the future. (Doc. 97, ¶ 59.)

         Eric King’s execution took place in March 2011. (Id., ¶ 61.) After the three-drug combination was administered, however, King was injected with an additional dose of both potassium chloride and sodium thiopental. (Id.) No consciousness check was performed before the additional dosages were administered. (Id., ¶ 131.)

         Donald Beaty’s execution was set for May 25, 2011. (Id., ¶ 62.) Eighteen hours before it was to begin, the Department notified Beaty that it would substitute sodium thiopental with pentobarbital. (Id.) The Arizona Supreme Court permitted the execution to proceed, based on the State’s avowal that the only change was the drug substitution. (Id.) Justice Hurwitz dissented, observing that Beaty’s application was occasioned “by the State’s last-minute decision to substitute one barbiturate for another, and we have been compelled to address this issue literally overnight.” (Id.)

         The State executed Richard Bible in June 2011 and scheduled Thomas West’s execution for July 19, 2011. (Id., ¶¶ 63-64.) Three days before West’s execution, several inmates filed a lawsuit charging that the Department would not follow its written protocol. West v. Brewer, 11-CV-1409-NVW. Specifically, the plaintiffs alleged that the Department failed to conduct required trainings, failed to obtain drugs from a safe and reputable source, and failed to administer drugs through peripheral instead of femoral lines. (Doc. 97, ¶ 64.) The court denied the request to enjoin West’s execution. The Ninth Circuit affirmed, relying specifically on counsel’s representations that the protocol adopted during the Dickens litigation would be followed. (Id., ¶ 65.) West was executed, but the litigation filed on his behalf (among others) proceeded. After discovery and trial, the court denied relief. (Id., ¶ 66.)

         One month later, the Department adopted a new lethal injection protocol, which spurred another lawsuit by inmates scheduled for execution. Towery v. Brewer, 12-CV-00245-NVW. Questions were raised regarding the qualifications of execution team members, placement of IV lines, and inmates’ access to counsel on the morning of their execution. (Doc. 97, ¶ 68.) The Court denied relief and the inmates appealed. (Id., ¶ 69.) The Ninth Circuit scheduled oral argument for 4:00 p.m. on February 27, 2012. (Id.) Five hours before oral argument, the Department notified the plaintiffs that it intended to change the method of execution to one dose of pentobarbital because the pancuronium bromide it intended to use had expired six weeks before. (Id., ¶ 70.)

         During oral argument, the Department shifted course and made several representations on how the protocol would be changed to ensure team members were qualified and that IV lines were properly placed. (Id., ¶ 71.) The Department also agreed to allow inmates access to counsel on the morning of their executions. (Id.) The Ninth Circuit affirmed the denial of relief based on the representations of counsel during oral argument. (Id., ¶ 72.)

         Robert Towery was executed on March 8, 2012. (Id., ¶ 74.) A private autopsy revealed that he was punctured at least eleven times in an attempt to locate a vein. (Id., ¶ 77.) Towery also communicated by code to his attorneys while he was speaking his last words. (Id., ¶ 75.) He indicated that the execution team made numerous attempts to set the IV lines and that he had been prevented from speaking with counsel. (Id.)

         On April 25, 2012, Thomas Kemp was executed. (Id., ¶ 78.) Despite the prominence of good veins, he was punctured at least three times, including once in the femoral area and at least twice over the left upper extremity. (Id.)

         A few days after Kemp’s execution, Samuel Lopez filed a motion for preliminary injunction to stay his May 1, 2012 execution. (Id., ¶ 79.) The district court denied relief. (Id.) The Ninth Circuit affirmed but warned the Department that its constant deviation from its established procedures could not continue. (Id.)

         On March 26, 2014, the Department adopted a new protocol, which included the combination of 50 mg of midazolam and 50 mg of hydromorphone. (Id., ¶ 90.) The next prisoner to be executed under this protocol was Joseph Wood. (Id.) Wood and other inmates scheduled for execution filed this action. The district court denied a motion to stay Wood’s execution, but the Ninth Circuit conditionally stayed the execution until the Department disclosed the name and provenance of the drugs to be used and the qualifications of the medical personnel. (Id., ¶ 94.) The Supreme Court reversed and vacated the conditional stay. (Id., ¶ 97.)

         Wood’s execution commenced on July 23, 2014, at 1:52 p.m. (Doc. 26 at 1.) Twelve minutes into his execution, after first appearing sedated, Wood “rose upwards against his restraints and gulped for air.” (Doc. 97, ¶ 101.) At the 18- and 24-minute marks, the Department administered second and third doses of the midazolam-hydromorphone combination, without performing a consciousness check as provided under the written protocol. (Id., ¶¶ 102-03.) By approximately 100 minutes after the execution began, the Department had injected Wood 12 times with each drug. (Id., ¶ 105.) Finally, after nearly two hours and a total of 15 injections, Wood was pronounced dead. (Id., ¶ 100.)

         On September 18, 2014, the inmates filed their first amended complaint, which the First Amendment Coalition joined as an additional plaintiff. (Doc. 53.) The parties stipulated to stay the action until the Department published their revised execution procedures. (Docs. 67, 68.) The new procedures were published on October 23, 2015. (Doc. 73.) On motion of the Department, the court lifted the stay on December 20, 2015, as to Protocol C, the only one for which the Department has the drugs. (Doc. 85.) On January 12, 2016, the Court lifted the stay in its entirety. (Doc 89.) The Department agreed not to seek warrants of execution until the completion of this litigation as to the form of execution the State seeks to use, and it was so ordered. (Id.) Plaintiffs filed their second amended complaint on January 29, 2016. (Doc. 97.) This motion to dismiss followed.


         The Supreme Court has emphasized that “because it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.’” Glossip, 135 S.Ct. at 2732-33 (quoting Baze, 553 U.S. at 47). The court views the claims and the motion to dismiss with this principle in mind. The pharmaceutical manufacturers’ withdrawal of the best drugs from use in executions does not end capital punishment.

         A. Eighth Amendment: Midazolam and Paralytic (Claim 1)

         In Claim 1, the inmates allege that Protocol C, with its use of midazolam followed by a paralytic, violates their Eighth Amendment rights. They allege that “midazolam . . . cannot reliably ensure that Petitioner [sic] will remain in a state in which he will be unable to experience pain caused by the potassium chloride.” (Doc. 97, ¶ 151.) They allege that midazolam “has no pain-relieving effects, and it is not used as a sole agent to maintain unconsciousness in painful procedures.” (Id., ¶ 135.) They further allege that midazolam has a ceiling effect, “a point at which additional doses of midazolam cease to affect the central nervous system (the brain and spinal cord), ” and that midazolam, “at any dose, will not reliably keep a person insensate during the administration of painful stimuli.” (Id.) In contrast to midazolam, “[s]odium thiopental and pentobarbital belong to a class of drugs called barbiturates. The mechanism of action for barbiturates is different than that for benzodiazepines. Unlike benzodiazepines, barbiturates can keep a person insensate to painful stimuli and, in high doses, will cause death.” (Id., ¶ 136.)

         The inmates allege, therefore, that use of the paralytic, which causes pain on its own “through slow suffocation” (id., ¶ 5) and masks pain resulting from the potassium chloride, violates their “rights under the Eighth and Fourteenth Amendments to be free from severe pain, experimentation, and the gratuitous invasion of the body.” (Id., ¶ 151.)

         The relevant law is set forth in Baze and Glossip. To succeed on an Eighth Amendment method-of-execution claim, a prisoner must make two showings. First, he must establish that the method presents a risk that is “sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.” Baze, 553 U.S. at 50 (quotations omitted). “[T]here must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents ...

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