Case 5:06-ct-03018-H Document 1-1 Filed 02/27/2006 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. ____________________

WILLIE BROWN, JR., N.C. DOC #0052205,

Plaintiff,
v.
THEODIS BECK, Secretary, North Carolina Department of Correction, and MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina, and UNKNOWN EXECUTIONERS, Individually, and in their Official Capacities,

COMPLAINT

Defendants.

Plaintiff, Willie Brown, Jr., N.C. DOC #0052205, complaining of the Defendants, alleges

and says:

NATURE OF THE ACTION

1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened

violations of Plaintiff’s right to be free from cruel and unusual punishment under the Eighth and

Fourteenth Amendments of the United States Constitution. Plaintiff seeks preliminary and

permanent injunctive relief to prevent the Defendants from executing him by means of lethal

injection using the current North Carolina protocol. Plaintiff contends that the Defendants’

protocol for anesthesia as a precursor to execution by lethal injection unnecessarily risks

infliction of pain and suffering. Plaintiff further contends that the nature of the chemicals used

by Defendants to effectuate death creates a heightened need for proper induction and

maintenance of anesthesia. As a result of their failure to use medically approved procedures and

properly trained personnel, Defendants have created an unacceptable risk that Plaintiff will suffer

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excruciating pain during the course of his execution unless Defendants adopt safe and humane anesthesia protocols.
JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343 (civil rights violation), § 2201 (declaratory relief), and § 2202 (further relief). This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983. 3. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that Plaintiff is currently incarcerated at Central Prison in Raleigh, North Carolina, which is located in this District. All executions conducted by the North Carolina Department of Correction occur at Central Prison. The events giving rise to this Complaint have occurred and will occur in this District.
THE PARTIES 4. Plaintiff Willie Brown, Jr. is a United States citizen and a resident of the State of North Carolina. Plaintiff is a death-sentenced prisoner currently being held in the custody of Defendants and under the supervision and control of the North Carolina Department of Correction. Plaintiff is held at Central Prison, 1300 Western Boulevard, Raleigh, North Carolina, 27606. 5. Defendant Theodis Beck is the Secretary of the North Carolina Department of Correction. Defendant Marvin Polk is the Warden of Central Prison in Raleigh, North Carolina, the facility at which Defendants plan to execute Plaintiff. These Defendants are citizens and residents of the State of North Carolina. Defendants Unknown Executioners are employed or contracted by the North Carolina Department of Correction and make preparations for and carry out the execution of Plaintiff. Plaintiff does not yet know, and it is Plaintiff’s understanding that
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Defendants will not reveal, the identities of these persons. All of the Defendants are being sued in their individual and official capacities.
EFFECTIVE EXHAUSTION OF ADMINISTRATIVE REMEDIES 6. Plaintiff has effectively exhausted his administrative remedies. Plaintiff filed an emergency grievance with Central Prison officials on 13 February 2006. A copy is attached as Exhibit A. As of the date of filing of this Complaint, the Grievance Board has failed to act on Plaintiff’s grievance despite Plaintiff’s request that his grievance be treated as an emergency and despite his impending execution.
GENERAL ALLEGATIONS 7. At the 7 November 1983 Criminal Session of the Martin County Superior Court, Plaintiff was convicted of first-degree murder and robbery with a dangerous weapon and sentenced to death. 8. On 27 February 2006, the United States Supreme Court issued an Order denying Plaintiff’s Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit, completing Plaintiff’s federal habeas proceeding. Pursuant to N.C. Gen. Stat. § 15194(1), following the denial of Plaintiff’s Petition for Writ of Certiorari, Defendants may immediately schedule a date for carrying out Plaintiff’s execution. 9. Defendants intend to execute Plaintiff by poisoning him with a lethal combination of chemical substances. Under North Carolina statute, death sentences shall be carried out by the administration of “a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent.” N.C. Gen. Stat. §§ 15-187, 15-188. The North Carolina statutes do not prescribe the specific dosages, sequences, or manner of administering lethal chemicals to carry out executions; nor do the statutes prescribe any certification, training, or licensure
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required of those who participate in the execution process. Further, the statutes, as interpreted by the North Carolina Supreme Court, do not prescribe or limit the categories or combinations of drugs or chemicals that may be used to carry out executions by lethal injection. Each of these matters, and all other details of the execution process, are within the discretion of the Defendants.
10. Defendants’ execution protocol involves the pushing of two identical sets of five syringes into two intravenous lines leading to the inmate’s body. The sequence of injections is as follows: The first syringes contain a total of 3000 milligrams of sodium pentothal, an ultra short-acting barbiturate. The second syringes contain saline to flush the IV line clean. The third syringes contain a total of 40 milligrams of pancuronium bromide (Pavulon), which paralyzes all voluntary muscles. The fourth syringes contain a total of 160 millequivalents of potassium chloride, an extremely painful chemical which activates the nerve fibers lining the prisoner’s veins and interferes with the heart’s contractions, causing cardiac arrest. The fifth syringes contain saline to flush the IV lines clean.
11. Sodium pentothal, also referred to as thiopental sodium, is an ultra short-acting barbiturate that is usually administered only during the preliminary phase of anesthesia. There is a reasonable likelihood that sodium pentothal, if ineffectively delivered, will not provide an appropriate plane of anesthesia for the duration of the execution process. Without adequate sedation, Plaintiff will experience excruciating pain as a result of the conscious asphyxiation caused by pancuronium bromide and the painful burn and cardiac arrest caused by the injection of potassium chloride.
12. Pancuronium bromide or Pavulon paralyzes voluntary muscles, including the diaphragm, but it does not affect consciousness or the perception of pain. To the extent that the
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first chemical, sodium thiopental, is improperly administered and fails to establish and maintain a sufficient plane of anesthesia, the pancuronium bromide serves only to mask Plaintiff’s excruciating pain and suffering. Pancuronium bromide can result in a conscious individual appearing unconscious to observers. The use of pancuronium bromide masks the physical signs that would be relied upon by a properly trained observer to determine whether the prisoner had been sufficiently anesthetized.
13. Potassium chloride disrupts the normal electrical activity of the heart and stops it from pumping blood, thereby causing cardiac arrest. As it travels in the bloodstream from the site of injection towards the heart, potassium chloride activates all the nerve fibers inside the vein, causing a burning sensation as it courses through the body and ravages the internal organs. This causes excruciating pain that is agonizing for an inmate who is not properly anesthetized.
14. The American Veterinary Medical Association (AVMA) states that the use of neuromuscular paralyzing drugs, including pancuronium bromide, solely or in conjunction with other drugs, is unacceptable as a method of euthanasia. The AVMA further states that the use of potassium chloride in a euthanasia protocol requires a surgical plane of anesthesia, which is characterized by loss of consciousness, loss of reflex muscle response, and loss of response to noxious stimuli. The AVMA recommends the use of a longer-lasting barbiturate for animal euthanasia. Pentobarbital, a longer-lasting barbiturate, is used for animal euthanasia rather than ultra short-acting sodium pentothal.
15. Defendants’ selection of potassium chloride, which causes excruciating pain upon injection, to cause Plaintiff’s death requires that Defendants employ an appropriate anesthesia protocol prior to its administration. Defendants’ administration of pancuronium bromide interferes with a proper assessment of anesthetic depth and would result in the extreme terror and
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suffering of conscious suffocation, thereby necessitating a heightened level of care to ensure that the appropriate plane of anesthesia is maintained.
16. The anesthesia practices and procedures adopted by Defendants are inadequate to ensure that an appropriate plane of anesthesia is induced and maintained prior to execution, creating an unacceptable and unnecessary risk that Plaintiff will experience excruciating pain during the course of his execution. North Carolina statutes do not prescribe or limit the specific chemicals, dosages, procedures, or manner of administering and maintaining anesthesia prior to execution by lethal injection; nor do the statutes prescribe any certification, training, or licensure required of those who participate in the anesthesia process. Each of these matters is within the discretion of the Defendants.
17. Defendants have never conducted any type of independent investigation into the appropriate standards of practice for inducing and monitoring anesthesia as a precursor to execution by lethal injection. Defendants have undertaken no independent research or review to ensure that a prisoner will not suffer a conscious and painful death under the current anesthesia protocol.
18. Defendants’ anesthesia protocol lacks medically necessary safeguards, increasing the risk that Plaintiff will suffer unnecessary pain during the course of his execution. There is no standardized time to administer each of the three chemicals. The protocol identifies no procedures for ensuring that the anesthetic agent is properly flowing into the prisoner, and it identifies no procedures for ensuring that the prisoner is properly sedated prior to the administration of other chemicals, as would be required in any medical or veterinary procedure before the administration of a neuromuscular blocking agent, such as pancuronium bromide, or the administration of a painful potassium chloride overdose.
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19. Defendants’ protocol does not set forth any minimum qualifications or expertise required of the personnel who perform the tasks in the anesthesia and lethal injection processes. Defendants make no efforts to ensure that the individuals responsible for inducing and maintaining unconsciousness are credentialed, licensed, and proficient in the knowledge, skills, and procedures necessary to establish an appropriate plane of anesthesia throughout the lethal injection process.
20. Defendants’ anesthesia protocol contains no description of the training, credentials, certifications, experience, or proficiency required of personnel involved in the administration and monitoring of anesthesia prior to execution, notwithstanding the fact that it is a complex medical procedure requiring expertise in order to be performed correctly. For example, Defendants’ anesthesia protocol does not require the presence of any personnel who possess sufficient expertise to evaluate whether a prisoner is properly anesthetized before proceeding with the administration of painful chemicals in the execution process.
21. North Carolina law provides that only a licensed veterinarian may perform an act producing an irreversible change in an animal, such as euthanasia. Defendants’ anesthesia protocol includes no comparable requirement; in fact, it does not include any requirements for the credentials, certifications, experience, or proficiency of the personnel who administer anesthesia prior to execution.
22. The absence of medical personnel credentialed, licensed, and proficient in the field of anesthesiology greatly increases the risk that a prisoner will not receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide and then experiencing the painful internal burn of the potassium chloride.
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23. Defendants’ failure to require sufficient training, credentials, certification, experience, or proficiency of the personnel involved in the administration of anesthesia greatly increases the risk that a conscious prisoner will experience excruciating pain and suffering.
24. The physical layout of the execution chamber increases the risk that Plaintiff will not be properly anesthetized prior to execution. The presence of a curtain separating anesthesia personnel from the inmate and a sheet covering the inmate’s body block visual access to the site of the intravenous lines and impede the ability of personnel to closely and directly monitor the inmate. Defendants’ execution facility deviates significantly from medically-accepted practices and impairs the ability of anesthesia personnel to ensure the inmate in fact receives an adequate dosage of sodium pentothal and is rendered and remains unconscious.
25. Defendants’ protocol includes no guidelines upon which the personnel participating in executions can rely if they are required to exercise their discretion during the process. Defendants’ protocol fails to address any reasonably foreseeable complications with an appropriate medical response.
26. As a result of the Defendants’ failure to employ appropriate criterion for administering and monitoring anesthesia and failure to require that the individuals participating in anesthesia be appropriately credentialed, licensed, and proficient, Defendants have likely administered pancuronium bromide and potassium chloride to inmates who have not achieved an adequate plane of anesthesia.
27. Witnesses to a number of executions carried out in North Carolina by Defendants have reported seeing what appear to be horrific displays of pain and suffering. Reports of prisoners writhing and convulsing during execution are inconsistent with the proper administration of a full dosage of sodium pentothal.
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28. The lack of adequate standards for administration of the chemicals, the lack of qualifications of the personnel involved in the process, and the combination of the three particular drugs used in Defendants’ protocol create a grave and substantial risk that Plaintiff will be conscious throughout the execution process and, as a result, will experience an excruciatingly painful and protracted death.
CAUSE OF ACTION VIOLATION OF THE RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT PURSUANT TO THE EIGHTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983)
29. Plaintiff realleges and incorporates by reference the allegations contained in paragraphs 1 through 28.
30. Secretary Beck, Warden Polk, and Unknown Executioners are acting under color of North Carolina law in undertaking to execute Plaintiff by lethal injection using an insufficient, improperly designed and improperly administered protocol for inducing and maintaining anesthesia, such that Plaintiff will unnecessarily suffer an excruciating death in violation of his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments.
31. Although it is possible to conduct executions in a constitutionally compliant manner, Defendants have chosen not to do so. Defendants could choose to use alternative or additional chemicals that pose a lower risk of administration error yet do not cause extraordinarily grave consequences to the inmate if improperly administered; instead they have knowingly or recklessly chosen to use three chemicals that pose a high risk of administration error and risk of excruciating pain to Plaintiff. Moreover, Defendants have taken no precautions to ensure that the personnel who administer the lethal injection chemicals possess the training,
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credentials, certification, experience, and proficiency needed to administer those chemicals properly. Thus, while it is possible for Defendants to select additional or alternative chemicals and/or retain qualified personnel to administer its chosen chemicals to ensure the constitutionality of its lethal injection procedure, Defendants have acted with deliberate indifference and failed to do so. Defendants’ current protocol violates evolving standards of decency.
PRAYER FOR RELIEF WHEREFORE, Plaintiff Willie Brown, Jr. prays that: 1. This Court grant preliminary and permanent injunctive relief to enjoin Defendants from executing Plaintiff using an inadequate protocol for inducing and maintaining anesthesia; 2. This Court enter a declaratory judgment that Defendants’ inadequate anesthesia protocol violates the Eighth Amendment prohibition against cruel and unusual punishments; 3. This Court grant reasonably attorneys’ fees pursuant to 42 U.S.C. § 1988 and the laws of the United States, as well as costs of suit; and 4. The Court grant any further relief as it deems just and proper. Respectfully submitted this the 27th day of February 2006.
/s/ J. Donald Cowan, Jr. _____________________ J. Donald Cowan, Jr. N.C. State Bar No. 0968 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 21927 Greensboro, NC 27420 Telephone: (336) 378-5200 Telecopier: (336) 378-5400 Email: don.cowan@smithmoorelaw.com
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Case 5:06-ct-03018-H Document 1-1 Filed 02/27/2006 Page 11 of 11 /s/ Laura M. Loyek _________________________ Laura M. Loyek N.C. State Bar No. 28708 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 27525 Raleigh, NC 27611 Telephone: (919) 755-8700 Telecopier: (919) 755-8800 Email: laura.loyek@smithmoorelaw.com
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 Case 5:06-ct-03018-H Document 2 Filed 02/28/2006 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:06-CT-3018-H

WILLIE BROWN, JR., N.C. DOC #0052205,
Plaintiff,
v.
THEODIS BECK, Secretary, North Carolina Department of Correction, and MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina, and UNKNOWN EXECUTIONERS, Individually, and in their Official Capacities,

MOTION FOR PRELIMINARY INJUNCTION
Fed. R. Civ. P. 65(a) Local Civil Rules 7.1 and 10.1

Defendants.

Plaintiff Willie Brown, Jr., N.C. DOC #0052205, (hereinafter “Plaintiff”) through

counsel and pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, hereby moves this

Court for a preliminary injunction barring Defendants from executing Plaintiff using an

inadequate protocol for anesthesia during the course of Plaintiff’s execution by lethal injection.

GROUNDS FOR MOTION

Plaintiff’s Petition for Writ of Certiorari to the United States Court of Appeals for the

Fourth Circuit was denied on 27 February 2006, completing Plaintiff’s federal habeas proceeding

and requiring the Defendants to immediately schedule a date for carrying out Plaintiff’s

execution. As set forth in detail in the accompanying Memorandum in Support of Motion for

Preliminary Injunction, Plaintiff seeks to enjoin Defendants from carrying out his execution

using their intended inadequate anesthesia protocol, which unnecessarily risks infliction of pain

and suffering. Defendants’ protocol for anesthesia does not include adequate safeguards

regarding the manner in which anesthesia is to be induced and maintained; does not establish the

Case 5:06-ct-03018-H Document 2 Filed 02/28/2006 Page 2 of 4
appropriate minimum qualifications and medical expertise required of the personnel charged with inducing and maintaining an appropriate plane of anesthesia; does not provide for adequate monitoring of Plaintiff’s level of anesthesia; does not authorize appropriately trained medical professionals to intervene in the event that an appropriate plane of anesthesia is not achieved or maintained during the course of lethal injection; and does not establish medically appropriate criteria upon which the personnel charged with inducing and maintaining anesthesia are to rely.
Defendants inadequate protocol for inducing and maintaining anesthesia throughout the course of Plaintiff’s execution by lethal injection poses an unacceptable risk that Plaintiff will needlessly and consciously suffer excruciating pain in violation of his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments.
Plaintiff does not seek to invalidate, nor does this lawsuit imply the invalidity, of his conviction or death sentence. Plaintiff seeks only narrowly drawn relief from the unacceptable risk of conscious suffering during the lethal injection process as a result of Defendants’ wholly unnecessary use of an inadequate means of achieving and maintaining an appropriate plane of anesthesia.
A preliminary injunction is warranted because Plaintiff will suffer immediate and irreparable harm if Defendants are not prevented from conducting Plaintiff’s execution using their current protocol, which fails to ensure that an appropriate plane of anesthesia will be induced and maintained prior to execution. Plaintiff is also likely to succeed on the merits of his claim, and the public interest is served by granting preliminary equitable relief.
WHEREFORE, Plaintiff respectfully requests the Court to issue a preliminary injunction enjoining Defendants from executing Plaintiff using their intended inadequate protocol for
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inducing and maintaining anesthesia. In light of Plaintiff’s imminent execution, Plaintiff further requests that expedited consideration be given to this Motion.
Respectfully submitted this the 28th day of February 2006.
/s/ J. Donald Cowan, Jr. _____________________ J. Donald Cowan, Jr. N.C. State Bar No. 0968 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 21927 Greensboro, North Carolina 27420 Telephone: (336) 378-5200 Telecopier: (336) 378-5400 Email: don.cowan@smithmoorelaw.com
/s/ Laura M. Loyek _________________________ Laura M. Loyek N.C. State Bar No. 28708 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 27525 Raleigh, North Carolina 27611 Telephone: (919) 755-8700 Telecopier: (919) 755-8800 Email: laura.loyek@smithmoorelaw.com
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Case 5:06-ct-03018-H Document 2 Filed 02/28/2006 Page 4 of 4 CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing MOTION FOR PRELIMINARY INJUNCTION was served upon Defendants by hand-delivering a copy to the follow address:
Lavee Hamer, Esq. General Counsel North Carolina Department of Correction 214 W. Jones Street Raleigh, North Carolina 27699 This the 28th day of February, 2006.
/s/ J. Donald Cowan, Jr.____________________________ J. Donald Cowan, Jr. Attorney for Plaintiff
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Case 5:06-ct-03018-H Document 3-1 Filed 02/28/2006 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:06-CT-3018-H

WILLIE BROWN, JR., N.C. DOC #0052205, Plaintiff,
v.
THEODIS BECK, Secretary, North Carolina Department of Correction, and MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina, and UNKNOWN EXECUTIONERS, Individually, and in their Official Capacities,

MEMORANDUM IN SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
Fed. R. Civ. P. 65(a) Local Civil Rules 7.1(d) and 7.2

Defendants.

Plaintiff, Willie Brown, Jr., N.C. DOC #0052205, (hereinafter “Plaintiff”) through counsel

and pursuant to Local Civil Rules 7.1(d) and 7.2, hereby submits this Memorandum in Support of

Motion for Preliminary Injunction.

INTRODUCTION

Under North Carolina law, Plaintiff, a death row inmate at Central Prison, will be executed

by lethal injection. A growing body of evidence, including medical evidence, eyewitness

observations, and veterinary literature, persuasively demonstrates that the protocol adopted by the

North Carolina Department of Correction (“NCDOC”) creates a significant risk that Plaintiff will fail

to receive adequate anesthesia and will be conscious for the duration of his execution. Without

adequate anesthesia, Plaintiff will first experience slow suffocation followed by the “extraordinarily

painful” activation of sensory nerve fibers in the walls of his veins caused by the potassium chloride

used to bring about cardiac arrest. (Heath Aff. ¶ 15.) Given this significant danger, Plaintiff seeks to

prevent Defendants from executing him in a manner that is likely to subject him to this excruciating

pain.

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Plaintiff filed this civil action pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief based on allegations that Defendants’ anesthesia protocol violates his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments. Plaintiff specifically alleges that Defendants’ protocol for anesthesia does not include adequate safeguards regarding the manner in which anesthesia is to be induced and maintained; does not establish the appropriate minimum qualifications and medical expertise required of the personnel charged with inducing and maintaining an appropriate plane of anesthesia; does not provide for adequate monitoring of Plaintiff’s level of anesthesia; and does not authorize medical professionals credentialed, licensed, and proficient in the practice of anesthesia to intervene in the event that an appropriate plane of anesthesia is not achieved or maintained during the course of his execution by lethal injection.
Plaintiff does not seek to invalidate, nor does this lawsuit imply the invalidity of, his conviction or death sentence. Plaintiff seeks only narrowly drawn relief from the unacceptable risk of conscious suffering during the lethal injection process as a result of Defendants’ unnecessary use of an inadequate means of achieving and maintaining an appropriate plane of anesthesia.
Plaintiff respectfully requests that this Court, pending a final determination of the merits of Plaintiff’s claim, preliminarily enjoin Defendants from their gratuitous use of an inadequate protocol for anesthesia during the course of his execution by lethal injection.
BACKGROUND I. PROCEDURAL HISTORY
In 1983, Plaintiff was convicted of first-degree murder and robbery with a dangerous weapon and sentenced to death for the murder of Valerie Ann Roberson Dixon. On direct appeal, the Supreme Court of North Carolina affirmed Plaintiff’s convictions and sentence. State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985) (Exum, J., dissenting as to sentence). The United States Supreme
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Court denied Plaintiff’s petition for certiorari. Brown v. North Carolina, 476 U.S. 1165 (1986) (Brennan & Marshall, JJ., dissenting from the denial of certiorari).
Plaintiff filed a Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of North Carolina in 1998. The district court denied the petition in its entirety in August 2004, and this judgment was affirmed by the Fourth Circuit in July 2005. The United States Supreme Court denied certiorari on 27 February 2006. Pursuant to N.C. Gen. Stat. § 15-194(1), Defendants may immediately schedule a date for carrying out Plaintiff’s execution after receiving notice that “[t]he United States Supreme Court has filed an opinion upholding the sentence of death following completion of the initial State and federal postconviction proceedings.”
On 13 February 2006, Plaintiff filed an emergency grievance with Central Prison officials. (Compl., Ex. A.) As of the filing of this Memorandum, Plaintiff has received no response from officials at Central Prison or the NCDOC Grievance Board despite Plaintiff’s request that his grievance be treated as an emergency and despite his impending execution. Plaintiff has now fully availed himself of the administrative grievance process, and any delay in the issuance of a final decision results from inaction on the part of Defendants. Plaintiff has therefore effectively exhausted his administrative remedies. In the alternative, Plaintiff submits that pursuit of administrative review is futile under the circumstances of this case. Similar grievances have been submitted by inmates George Franklin Page, Kenneth Rouse, and Sammy Perkins in August 2004. The NCDOC issued an identical response to each of these emergency grievances, recommending that no action be taken.1 (See Page, Rouse, and Perkins Grievance Documents, attached as Exhibit A.)
1 Plaintiff understands that an emergency grievance challenging Defendants’ protocol for inducing and maintaining anesthesia during execution was submitted by inmate Kenneth Boyd in October 2005 and denied by the Defendants.
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II. LETHAL INJECTION PROTOCOL The current North Carolina lethal injection process involves the pushing of two identical sets
of five syringes into two intravenous lines leading to the inmate’s body. The sequence of injections is as follows:
The first syringes contain no less than 3000 milligrams of sodium pentothal, an ultra short acting barbiturate that quickly puts the inmate to sleep. The second syringes contain saline to flush the IV line clean. The third syringes contain no less than 40 milligrams of pancuronium bromide (Pavulon), which is a chemical paralytic agent. The fourth syringes contain no less than 160 millequivalents of potassium chloride, which at this high dosage interrupts nerve impulses to the heart, causing it to stop beating. The fifth syringes contain saline to flush the IV lines clean. North Carolina Department of Correction “Execution Method,” available at http://www.doc. state.nc.us/dop/deathpenalty/method.htm. Upon a signal from the Warden, both sets of syringes are injected simultaneously in order “one” through “five,” with each succeeding chemical solution being introduced within a few seconds after the injection of the immediately preceding chemical solution is completed. Under Defendants’ execution protocol, Plaintiffs will be rendered dead by the administration of potassium chloride, the third drug administered in the lethal injection sequence. (Heath Aff. ¶ 12.) Potassium chloride is a salt solution that when given in high concentrations causes cardiac arrest. (Id.) The other drugs that are administered during the procedure, sodium pentothal and pancuronium bromide, while intended to be administered in lethal doses, are not responsible for the death of the prisoner. (Id.) While the successful delivery into the circulation of sodium pentothal and pancuronium bromide in high doses would be lethal, the lethality of sodium pentothal and pancuronium is due to respiratory arrest, which takes several minutes and does not typically occur prior to the administration of potassium chloride. (Id.) In the execution sequence, before death can
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be caused by respiratory arrest from sodium pentothal and pancuronium bromide, death is caused by potassium chloride. (Id.)
Intravenous injection of concentrated potassium chloride solution causes excruciating pain. The vessel walls of veins are richly supplied with sensory nerve fibers that are highly activated by potassium ions. The intravenous administration of concentrated potassium in doses intended to cause death would be extraordinarily painful. (Heath Aff. ¶ 15.) Stated differently, potassium chloride is locally toxic and extremely painful on injection if undiluted. Toxicity on local injection would cause extreme pain in an awake patient. (Boysen Aff. ¶ 10.)
Defendants also intend to administer pancuronium bromide, or Pavulon, in the process of carrying out Plaintiff’s death sentence. This chemical has no anesthetic quality. (Heath Aff. ¶ 18; Concannon Aff. ¶ 13.) Rather, pancuronium bromide is a neuromuscular blocking agent, which means it interferes with neuromuscular transmission and, in effect, results in total muscle paralysis, an inability to move or breathe. (Boysen Aff. ¶ 9.) An awake subject would experience extreme terror, as the subject would be unable to move respiratory muscles and would asphyxiate and suffocate. (Id.; see also Concannon Aff. ¶ 13.) Should an inmate remain conscious when the pancuronium bromide is administered, the inmate would suffer slow suffocation as well as the excruciating pain of the potassium chloride, all while being completely paralyzed and unable to communicate. (Heath Aff. ¶¶ 14, 20.) The inmate would not be able to speak, grimace, or make any move to indicate the horror being experienced. Onlookers, especially those without any medical training, would be convinced they are witnessing a placid and peaceful demise, when just the opposite is occurring. (Boysen Aff. ¶ 9; Heath Aff. ¶ 21.) The use of a chemical paralytic agent such as pancuronium, with its attendant risk of the extreme distress of conscious paralysis, renders even more important the need to have the general anesthetic provided by medical personnel credentialed, licensed, and proficient in the field of anesthesia. (Heath Aff. ¶¶ 26, 35.)
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In order to induce unconsciousness prior to injection of potassium chloride and pancuronium bromide, Defendants’ anesthesia protocol calls for an injection of thiopental sodium, or sodium pentothal, which is an ultra short-acting barbiturate anesthetic. Sodium thiopental is injected for the purpose of achieving anesthetic induction and to render a patient unconscious. (Boysen Aff. ¶ 4.) The medically-accepted method for administering this drug is through a short tubing connected to an indwelling intravenous catheter, and the drug is flushed into the venous system by free running fluid, either a saline or glucose containing source. (Id.) The package insert that accompanies sodium thiopental used in lethal injections in North Carolina contains a directive that the drug be administered only by individuals experienced in the conduct of intravenous anesthesia. (Heath Aff. ¶ 36, Ex. 3.) This type of directive serves as a warning to physicians and other medical professionals that this drug should not be used by individuals who lack advanced training in the administration of anesthesia. (Id.)
The American Veterinary Medical Association (“AVMA”) has explicitly recognized the significant dangers associated with each of the chemicals selected by Defendants to carry out executions by lethal injection. According to AVMA guidelines, potassium chloride is unacceptable in veterinary euthanasia protocols that fail to provide for the presence of properly trained veterinary personnel to induce proper anesthesia and maintain an unconscious state throughout the euthanasia process. (Concannon Aff. ¶ 14.) The AVMA further states that the use of neuromuscular paralyzing drugs, to include pancuronium bromide, solely or in conjunction with other drugs is unacceptable as a means of euthanasia. (Concannon Aff. ¶ 13); see also 2000 Report of AVMA Panel on Euthanasia, available at http://www.avma.org/resources/euthanasia.pdf. The AVMA recommends the use of a longer-lasting barbiturate like pentobarbital for animal euthanasia, rather than ultra short-acting sodium pentothal. (Concannon Aff. ¶ 4.)
The selection of the above-described chemicals and the development of protocols for their administration for purposes of lethal injection are matters wholly within the Defendants’ discretion.
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Under North Carolina statute, death sentences are to be carried out by the administration of “a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent.” N.C. Gen. Stat. §§ 15-187, 15-188. The North Carolina statutes do not prescribe the specific dosages, sequences, or manner of administering lethal chemicals to carry out executions; nor do the statutes prescribe any certification, training, or licensure required of those who participate in the execution process. There is no statutory proscription on the particular means for achieving and maintaining an appropriate plane of anesthesia as a precursor to execution by lethal injection. Rather, it is squarely within Defendants’ discretion to establish a means of inducing and maintaining anesthesia by properly trained professionals in compliance with the constitutional prohibition against cruel and unusual punishment.
Furthermore, the statutes, as interpreted by the North Carolina Supreme Court, do not prescribe or limit the categories or combinations of drugs or chemicals that may be used to carry out executions by lethal injection. See State v. Hunt, 357 N.C. 454, 455, S.E.2d 502, 503 (2003) (holding that “[t]he addition of ‘only’ to N.C.G.S. § 15-187 does not reflect a legislative intent to limit the drugs or chemicals that can be used during a lethal injection execution, but rather limits the method of execution in North Carolina solely to lethal injection instead of asphyxiation by lethal gas or some other method”). Indeed, the State of North Carolina has explicitly acknowledged that it has discretion to utilize alternative or additional chemicals in carrying out executions by lethal injection, asserting that “the statutes reasonably cannot be interpreted as prohibiting the DOC from utilization of other necessary and appropriate lethal drugs or chemicals to make the execution more humane.” (See State’s Emergency Petition for Writs of Certiorari and Prohibition and Motion to Vacate Stay of Execution, State v. Hunt, No. 5A86-10, attached as Exhibit B.)
ARGUMENT Plaintiff seeks narrow preliminary equitable relief from Defendants’ gratuitous use of an inadequate protocol for anesthesia that unnecessarily places Plaintiff at serious risk of suffering
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excruciating pain in the course of his execution. Plaintiff willingly concedes that there exist means of inducing and maintaining an appropriate plane of anesthesia throughout the lethal injection process consistent with statutory and case law regarding execution by lethal injection in North Carolina. However, Defendants have willfully turned a blind eye to the inadequacies of their anesthesia protocol and the unacceptable and wholly unnecessary risk that Plaintiff will consciously suffer horrifying pain before his death by lethal injection is effectuated. I. THE LEGAL STANDARD
The Fourth Circuit has recognized a district court’s authority to enter a preliminary injunction in a Section 1983 lawsuit challenging the constitutionality of law enforcement practices. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991) (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 931-34 (1975)). To obtain a preliminary injunction, Plaintiff must satisfy the test set forth in Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 196 (4th Cir. 1977):
The decision of the district court must be based upon a flexible interplay of the four factors to be considered: (1) the likelihood of irreparable harm to the plaintiff without the temporary injunction; (2) the likelihood of harm to the defendant with the injunction; (3) plaintiff’s likelihood of success on the merits; and (4) the public interest. Telvest, Inc. v. Bradshaw, 618 F.2d 1029, 1032 (4th Cir. 1980) (summarizing the test established in Blackwelder, 550 F.2d at 196). The relative harms to the plaintiff and defendant are the most important considerations in this analysis. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991). If, after balancing these two factors, the balance tips in favor of the plaintiff, a preliminary injunction is appropriate if “the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.” Rum Creek, 926 F.2d at 359.
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The balance of hardships in this case strongly favors Plaintiff, as Plaintiff will clearly suffer irreparable harm in the absence of a preliminary injunction. Plaintiff is also likely to succeed on the merits of this case, and the public interest is served by granting preliminary equitable relief, which will allow the important question of the constitutionality of Defendants’ anesthesia protocols to be resolved on the merits. II. THE BALANCE OF HARDSHIPS FAVORS PLAINTIFF
A. Likelihood of Immediate Irreparable Harm To Plaintiff The immediacy of the harm Plaintiff faces is undeniable as Defendants are required to immediately schedule Plaintiff’s execution following the denial of his Petition for Writ of Habeas Corpus. N.C. Gen. Stat. § 15-194(1). The excruciating pain that Plaintiff will suffer during his execution clearly constitutes irreparable harm. See Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (holding that continued pain and suffering resulting from deliberate medical indifference is irreparable harm). Moreover, Plaintiff will have no meaningful retrospective remedy, as he will no longer be alive. Indeed, the Fourth Circuit has recognized that, because of the absence retrospective remedies, the showing required for a preliminary injunction is less strict in cases involving an alleged violation of rights under Section 1983. See Rum Creek, 926 F.2d 353, 362 (4th Cir. 1991) (“[B]ecause current Supreme Court cases suggest that the only remedy available to a plaintiff who alleges that a State . . . has violated rights under § 1983 is an injunction and declaration against the State, the showing necessary to meet the irreparable harm requirement for a preliminary injunction should be less strict than in other instances where future monetary remedies are available.”). Plaintiff’s evidence demonstrates that the properties of the chemicals used by Defendants to effectuate death – the conscious suffocation and masking effect produced by pancuronium bromide and the excruciating internal burn of potassium chloride – create a heightened need for proper administration of anesthesia. (See Heath Aff. ¶ 35; Concannon Aff. ¶ 12.) Yet, Defendants’ current protocol calls for administration of anesthesia without medically appropriate criteria for assessing
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level of consciousness, in the absence of medical personnel credentialed, licensed, and proficient in the practice of anesthesia, and without opportunities for direct monitoring of the inmate. These conditions create a serious risk that anesthesia will not be appropriately administered and the inmate will not be rendered fully unconscious by the time the other two drugs are administered.
Because Defendants’ anesthesia protocol fails to ensure the proper administration of sodium pentothal, the risk of consciousness cannot be mitigated by the fact that the 3000 milligram dosage may be excessive in comparison to the dose that would be used in a surgical setting. Under Defendants’ protocol, numerous opportunities for error can arise during the administration of sodium pentothal.2 Although the full 3000 milligrams of sodium pentothal would almost certainly be sufficient to induce unconsciousness if the dose is actually delivered into the inmate’s circulation, that fact is irrelevant in light of the substantial danger that the full dose of anesthetic simply will not reach the inmate.
The risk that inmates will be conscious during their executions is, in part, inherent in the use of sodium pentothal itself. This drug is an ultra short-acting barbiturate that, in medical situations, is used only for specific, expeditious tasks, and only by medical personnel who have considerable expertise in anesthesia. (Heath Aff. ¶¶ 28, 36.) In contrast, veterinarians typically administer pentobarbital, a longer-lasting barbiturate, for purposes of animal euthanasia. (Concannon Aff. ¶ 4.)
In light of the fact that sodium pentothal is an ultra short-acting anesthetic, it is particularly important that the inmate have an opportunity to alert execution personnel should he regain – or never lose – consciousness, and that execution personnel have the ability to ascertain whether the inmate is properly anesthetized. (Id. ¶ 35.) Yet, the use of pancuronium bromide in combination
2 Dr. Heath has identified the following thirteen opportunities for problems to occur in the administration of intravenous injections: (1) errors in preparation; (2) error in labeling of syringes; (3) error in selecting the correct syringe; (4) error in correctly injecting the drug into the intravenous line; (5) the IV tubing may leak; (6) incorrect insertion of the catheter; (7) migration of the catheter; (8) perforation or rupture or leakage of the vein; (9) excessive pressure on the syringe plunger; (10) securing the catheter; (11) failure to properly administer flush solutions between injections of drugs; (12) failure to properly loosen or remove the tourniquet from the arm or leg; and (13) impaired delivery due to restraining straps. (Heath Aff. ¶ 26(a)-(m).)
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with sodium pentothal interferes with the assessment of consciousness. For example, in a recent article, the Robeson County, North Carolina, prosecutor was quoted regarding the 2003 execution of Henry Lee Hunt, at which he observed no outward signs of pain, specifically no grimacing, jerking or convulsing. Paul Woolverton, Execution Objections on Rise, Fayetteville Observer, Feb. 26, 2006, available at http://www.fayettevillenc.com/article?id=227272. However, according to Dr. Heath, “this prosecutor would have observed very similar if not identical circumstances if Mr. Hunt had been administered only pancuronium bromide and potassium chloride without any sodium pentothal and had consciously suffered the agony of suffocation and the excruciating pain that follows injection of potassium chloride.” (Heath Aff. ¶ 21.) The paralytic effect of pancuronium bromide therefore creates a heightened need for anesthesia to be properly administered by medical professionals credentialed, licensed, and proficient in the practice of anesthesia.
1. Critical Deficiencies in Defendants’ Anesthesia Protocol Subject Plaintiff to an Unnecessary Risk of Suffering Excruciating Pain.
Despite all of the above-described risks generated by the chemicals Defendants have selected to effectuate Plaintiff’s execution by lethal injection, Defendants’ anesthesia protocol fails to account for and in many ways exacerbates the likelihood of conscious suffering.
a. Defendants Fail to Employ Medically Appropriate Criteria for Monitoring the Inmate’s Plane of Consciousness.
Defendants’ anesthesia protocol fails to set forth any medically appropriate criteria by which execution personnel are to verify that the inmate has been rendered unconscious by sodium pentothal before they administer the paralyzing pancuronium bromide and painful potassium chloride injections. There is no indication that Defendants’ protocol calls for any delay after the sodium pentothal is injected for the purpose of assuring that the inmate is sufficiently anesthetized to proceed to the next step. Instead, the injections are administered one immediately after the other without any effort to confirm that the full dosage has been delivered into circulation and the prisoner is, in fact, unconscious.
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However, even if a period of delay were observed under Defendants’ protocol, it would be insufficient to ensure appropriate level of consciousness because the protocol is devoid of medically appropriate criteria to be applied in determining whether an inmate has achieved an adequate plane of anesthesia. Warden Polk is the individual at Central Prison who is charged with responsibility for carrying out executions. (Polk Dep. at 11.) Warden Polk has been involved in twenty-four executions as part of his official duties. (Id. at 39.) Warden Polk has no medical training. (Id. at 69.) When the Warden was questioned during his deposition in Page v. Beck, No. 5:04-CT-4-BO, as to how he is satisfied that an inmate is anesthetized at the time the execution team administers the chemical paralytic pancuronium bromide, he testified that the inmate begins to snore deeply after administration of the sodium pentothal, satisfying him that the inmate is sufficiently anesthetized when the pancuronium bromide is injected. (Id. at 39-41, Exhibit A to Errata Sheet at 1.)
In fact, as explained by Nancy Bruton-Maree, a Certified Registered Nurse Anesthetist, the fact that an inmate snores is actually evidence that the inmate is not anesthetized to a sufficient degree for the administration of pancuronium bromide or potassium chloride. “If an inmate is snoring deeply, he could not have been administered a full 3000 mg. of pentothal. If he had successfully received that dosage, he would not be breathing at all.” (Maree Aff. ¶ 5.) In the course of her practice, Ms. Maree would administer a muscle relaxant or chemical paralytic only after the patient reaches a plane of anesthesia resulting in respiratory arrest. (Maree Aff. ¶ 7.) Only after the patient stops breathing and is mechanically ventilated would it be appropriate to administer such drugs. (Id.) According to Ms. Maree, the criteria for evaluating consciousness used by Warden Polk are entirely inappropriate because, “[i]f a person is snoring, they are still breathing, and if they are breathing, they have not suffered respiratory arrest.” (Id.) Thus, contrary to the Defendants’ assumptions, inmates executed under the North Carolina protocol may not be receiving the intended dosage of sodium pentothal.
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Additionally, Dr. Kevin Concannon, who is a veterinarian and one of 175 diplomates of the American College of Veterinary Anesthesia, reports that the use of potassium chloride in a euthanasia protocol “requires a surgical plane of anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of response to noxious stimuli.” (Concannon Aff. ¶ 14.) The North Carolina lethal injection protocol does not include any testing of the inmate for loss of reflex muscle response or loss of response to noxious stimuli.
b. Defendants Fail to Employ Individuals with Appropriate Training and Proficiency in the Induction and Monitoring of Anesthesia.
The induction of anesthesia is a difficult and sensitive process that can be properly done only by persons with advanced training in this medical specialty. (Health Aff. ¶¶ 32-34.) In a surgical setting, the risks associated with a failure to properly administer anesthesia include death, brain damage, and a complication known as “interoperative awareness.” (Id. ¶ 32.) Accordingly, the standards of medical practice in North Carolina and elsewhere require that general anesthesia is only “administered by physicians who have completed residency training in the specialty of Anesthesiology, and by CRNAs.” (Id. ¶ 33.) Anesthesiologists must complete a three-year residency in Anesthesiology. (Id.) Similarly, a CRNA must graduate from an accredited advanced practice nursing education program, which entails participation in hundreds of cases under a variety of circumstances. (Maree Aff. ¶ 2, Ex. 2.)
The North Carolina Medical Board takes the position that a physician in the specialty of anesthesiology, or a CRNA supervised by a physician, must administer anesthesia in a procedure that requires deep sedation or general anesthesia. (Heath Aff. ¶ 34.) In a statement accompanying the release of a practice advisory on intraoperative awareness, the president of the American Society of Anesthesiologists, Orin Guidry, M.D., said that “the most important monitor in the operating room is the anesthesiologist, who has 12 years of medical training and a wealth of experience to draw on when deciding what is appropriate for each individual patient.” Press Release, American Society of
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Anesthesiologists, Report on Awareness Under General Anesthesia Says Anesthesiologist Have Multiple Tools and Approaches for Minimizing Risks (Oct. 25, 2005), available at http://www.asahq.org/news/news102505.htm.
Defendants’ anesthesia protocol contains no description of the training, credentials, certifications, experience, or proficiency required of personnel involved in the administration and monitoring of anesthesia, notwithstanding the fact that it is a complex medical procedure requiring expertise in order to be performed correctly. Significantly, the protocol does not require the presence of any personnel who possess sufficient expertise to evaluate whether a prisoner is properly anesthetized before proceeding with the administration of pancuronium bromide and potassium chloride.
According to Defendants, “medically trained” individuals are responsible for inserting intravenous catheters, monitoring consciousness, and ensuring the flow of chemicals into the inmate. (Polk Dep. at 61-63.) Licensing documents produced in Page v. Beck, No. 5:04-CT-04-BO, indicate that the only individuals with professional health care training who have participated in executions since January 2004 are Registered Nurses and EMT-Paramedics. (Redacted NC Licensing Documents produced by Defendants, attached as Exhibit C; see also Polk Dep. at 63-64, Exhibit A to Errata Sheet at 2.) One EMT-Paramedic completed personnel paperwork indicating that he or she would receive on-the-job training. (See Exhibit C.) Another EMT-Paramedic indicated that he or she would receive instructions in the way the work was to be done but would not be given any training by the Department of Corrections. (Id.) One of the Registered Nurses who completed this paperwork indicated that he or she would not be given instructions in the way the work was to be done, would not be given training by the Department, and was not required to have a license to complete the work. (Id.)
Defendants’ decision to hire registered nurses or EMTs to oversee anesthesia procedures creates a serious risk of complications and improper administration. While the registered nurses and
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EMTs hired by the Warden for the execution team may have experience in starting intravenous lines, the Defendants do not hire physicians or CRNAs with the requisite degree of knowledge or training to induce and maintain anesthesia during the execution process.
The individuals responsible for administering the sequence of injections, including the sodium pentothal used to render the inmate unconscious prior to execution, possess no medical expertise or training in the field of anesthesia. (Polk Dep. at 103, Exhibit A to Errata Sheet at 3.) Instead, they are volunteers selected by the Warden from among his staff. (Id.) In order to prepare for an execution, these individuals participate in a minimum of two practice sessions, during which the “medically trained” personnel, presumably the Registered Nurses and EMT-Paramedics referenced above, explain “how to push the syringes and at what rate.” (Id. at 102, Exhibit A to Errata Sheet at 3.) The Defendants’ practice of having injections of sodium pentothal personnel administered by personnel who have no training or proficiency in the practice of anesthesia is directly contrary to accepted medical standards. Indeed, “the administration of anesthetic care is complex and risky, and can only be safely performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia services.” (Heath Aff. ¶ 32.)
Proper monitoring of the inmate requires that a person trained specifically in assessing anesthetic depth closely observe the inmate at all times after the sodium pentothal is administered. Only persons trained in anesthesia are able to properly assess whether the inmate has attained the degree of unconsciousness necessary to render him insensitive to pain. (Heath Aff. ¶¶ 33-35.) For this reason, the AVMA requires that persons euthanizing animals be “competent in assessing depth [of anesthesia] appropriate for administration of potassium chloride.” See 2000 Report of AVMA Panel on Euthanasia, available at http://www.avma.org/resources/euthanasia.pdf. Similarly, North Carolina statute mandates that only licensed veterinarians perform acts producing an irreversible change in the animal, such as euthanasia. See N.C. Gen. Stat. § 90-187.6. (See also Concannon Aff. ¶ 7.)
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According to Dr. Heath, “there is no justification for the apparent failure to provide to inmates undergoing lethal injection a practitioner with the same or higher level of training and credentialing as would be provided to any other prisoner who is about to undergo a procedure that is known in advance to be agonizing.” (Heath Aff. ¶ 42.) Because Defendants’ lethal injection protocol calls for the injection of two drugs, pancuronium bromide and potassium chloride, known to cause excruciating pain, there is a heightened need for anesthesia to be properly administered by trained and experienced practitioners. (Id. ¶ 35.) Defendants’ protocol simply does not acknowledge, much less address, the significant risk that the injection of sodium pentothal will fail to render the inmate unconscious. The absence of personnel with the requisite degree of knowledge or training in anesthesia greatly exacerbates this risk.
c. Defendants Have Failed to Design an Appropriate Facility in Which to Conduct Anesthesia.
Even if the execution personnel were properly trained, the physical layout of the execution chamber further interferes with the necessary task of monitoring the inmate and the anesthesia process as a whole to ensure that the inmate in fact receives an adequate dosage of thiopental sodium. During an execution, the inmate is separated from the executioners by a curtain that runs between them. See North Carolina Department of Correction “Execution Method,” available at http://www.doc.state.nc.us/dop/deathpenalty/method.htm. This configuration deviates from established medical practice and impedes the ability of personnel administering anesthesia to closely and directly monitor their subject.
Ms. Maree, who has toured the execution chamber, found that the setup of the chamber, and specifically the presence of a curtain between the inmate and execution personnel, would block visual access to the site of the intravenous line, thereby precluding anesthesia personnel from identifying and remedying potential problems. (Maree Aff. ¶ 9.) Specifically, the curtain prevents personnel from obtaining visual or other verification that the drugs are actually being administered to
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the inmate, or that the sodium pentothal has taken effect. Proper monitoring of the flow of fluid into the vein requires a clear view of the IV site and also tactile examination of the skin surrounding the IV site to verify skin firmness and temperature. (Heath Aff. ¶¶ 38.) Because the site of IV insertion cannot be directly observed, “there is no assurance that the drug actually reaches the central circulation as intended” and “no way of knowing how much of the intended 1500 mg injections are actually infused into the prisoner.” (Boysen Aff. ¶¶ 5, 6.) The presence of a sheet covering the inmate’s body further impairs the ability of personnel to monitor the IV site. (Heath Aff. ¶ 30(e).)
Direct monitoring is crucial to a practitioner’s ability to monitor the effect of the anesthetic on the patient and the level of consciousness. Dr. Concannon describes the many physical criteria that are assessed during the course of veterinary anesthesia:
Determining level of consciousness is as much an art as it is a skill, and requires training and experience. There is no one monitor in animals or people that assesses degree of consciousness. Consciousness can be assessed in animals by observing: (1) muscle relaxation, (2) location of the pupils in the orbit, (3) absence or presence of eye movements, (4) respiratory rate, (5) heart rate, (6) blood pressure, (7) response to mildly painful stimulation, and (8) movement. I put my hands on the patient to help me assess these variables, and I rely upon monitors to help provide data such as blood pressure or heart rate. I believe to a reasonable degree of medical certainty that a veterinarian cannot accurately determine a patient’s state of consciousness without seeing and feeling the patient. (Concannon Aff. ¶¶ 8-9.) The configuration of the execution facility and the use of physical barriers that prevent visual and tactile monitoring of the inmate increase the likelihood that Plaintiff will be not be properly anesthetized and will experience conscious suffering during the course of his execution. Although Defendants could mitigate this unnecessary risk of pain by having qualified personnel verify, visually and tactically, that the inmate is indeed anesthetized after the administration of sodium pentothal, they have taken no measures to lessen the dangers created by their protocol.
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d. Defendants Fail to Make Provisions for Responding to Foreseeable Issues that May Arise During the Execution Process.
Despite the fact that Defendants’ protocol does not provide for the presence of appropriately trained and experienced personnel capable of exercising competent medical judgment based on the situation at hand, the protocol includes no specific instructions indicating how execution personnel should react to problems during with drug administration; how to stop the execution should it become clear that the inmate is conscious; what to do if there is trouble finding an adequate vein; or how to compensate for equipment malfunctions. Similarly, Defendants’ protocol does not attempt to account for other foreseeable issues that may arise when an inmate requires special consideration for any reason. The protocol makes no provision for individualized dosage calculations based on the inmate’s size or health condition and does not consider mediations taken by the inmate that may interfere with the anesthetic. Such factors are likely to be present in the prison population and must be assessed in order to ensure proper dosing of a barbiturate anesthetic. (Boysen Aff. ¶ 7.)
2. The Risk Created by Defendants’ Inadequate Anesthesia Protocol Has Been Realized in North Carolina.
Horrifying displays of suffering reported by execution witnesses indicate that Defendants’ inadequate anesthesia protocol has caused some inmates executed in North Carolina to experience unnecessary pain during their executions. During the execution of Willie Fisher on 9 March 2001, attorney Cynthia Adcock observed the following:
Shortly after 9:00, Willie appeared to lose consciousness. Instead of the quiet death I expected, Willie began convulsing. The convulsing was so extreme that Willie’s cousin jumped up screaming. Willie appeared as if he was trying to catch his breath but he could not. I remember this because I was upset that he was suffering, and wanting to help him, I timed my breathing to his. (Adcock Aff. ¶¶ 10-12.) Ms. Adcock also witnessed the execution of Timmy Keel on 7 November 2003. (Id. ¶¶ 1, 15.) Ms. Adcock observed the following at Mr. Keel’s execution:
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Timmy continued to mouth things to us after the drugs were administered. He stopped a couple of times to catch his breath. His desperation to communicate to us increased. While mid-sentence, Timmy gasped. His eyes became fixed and his mouth gapping [sic]. Timmy’s body began twitching and moving about. I remember wishing he would go ahead and die so that his suffering would stop. This stage went on for approximately 10 minutes.

(Id. ¶¶ 17-19.)

Heather Wells, an attorney who represented Eddie Ernest Hartman, witnessed Mr. Hartman’s

execution on 3 October 2003. (Wells Aff. ¶¶ 1-2.) Throughout the execution, Ms. Wells saw that

“Eddie’s eyes were partly open while his body relentlessly convulsed and contorted.” (Id. ¶ 11.) She

observed that “Eddie Hartman’s dying process was clearly painful and his death prolonged.” (Id. ¶

17.) Specifically, Ms. Wells observed the following:

When the execution began, I saw Eddie’s eyes close briefly, and almost immediately I saw his eyes partially open. Eddie’s throat began thrusting outward and collapsing inward. His neck pulsed, protruded, and shook repeatedly. Eddie’s chest at first pulsated frequently, then intermittently, and at least twice I saw Eddie’s chest heave violently.

(Id. ¶¶ 6-9.)

Attorney Kim Stevens represented John Daniels and witnessed his execution on 14

November 2003. (Stevens Aff. ¶ 2.) Ms. Stevens gave the following description of the execution:

(Id. ¶¶ 4-5.)

The warden came in and announced that the execution would proceed. The warden then left and the execution started. We thought [Mr. Daniels] was just going to go to sleep. Mr. Daniels lay still for a moment after the warden’s announcement, and turned his face away from us. Then, all of a sudden, he started to convulse, violently. He sat up and gagged. We could hear him through the glass. A short time later, he sat up and gagged and choked again, and struggled with his arms under the sheet. He appeared to me to be in pain. He finally lay back down and was still. I left at that time because I thought he was suffering.

According to Dr. Heath, “[w]itness accounts of writhing and convulsing during execution are

not consistent with a sufficient dose of thiopental having been successfully delivered to the brain

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such that the condemned inmate does not feel pain.” (Heath Aff. ¶ 27.) A person who is properly anesthetized would not be expected to exhibit these physical symptoms. (Id.) Instead, the typical reaction to sodium pentothal is yawning, drawing one or two deep breaths or visibly exhaling so that the cheeks puff out, then becoming motionless. (Id.)
Evidence from other states that administer the same sequence of chemicals using similar anesthesia procedures provides further evidence that problems in the administration of anesthesia have resulted in prisoners remaining conscious during their executions. In California, execution logs3 reveal significant delays in the cessation of respiration following the administration of sodium pentothal. Morales v. Hickman, 2006 WL 335427, at *5-6 (N.D. Cal. Feb. 14, 2006).4 In evaluating these accounts, the court concluded that “evidence from eyewitnesses tending to show that many inmates continue to breathe long after they should have ceased to do so cannot simply be disregarded on its face . . . [This evidence] raises at least some doubt as to whether the protocol actually is functioning as intended.” Id.at *6; see also Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005) (stating that accounts of recent California executions are “extremely troubling” because they indicate “that there were problems associated with the administration of the chemicals that may have resulted in the prisoners being conscious during portions of the executions”).
B. Little, If Any, Likelihood of Harm to Defendants Defendants will incur minimal, if any, harm if they are enjoined from conducting Plaintiff’s execution using their intended inadequate protocol. Plaintiff seeks only to enjoin Defendants from doing what they have no right or need to do – employing an inadequate protocol for inducing and maintaining anesthesia with blatant disregard for the conscious suffering and excruciating pain
3 The execution logs reviewed by the court in Morales v. Hickman contained information regarding the time at which each of the three injections was administered and the time at which respirations ceased. To the best of Plaintiff’s knowledge, execution logs of this nature have never been produced for executions conducted in North Carolina. 4 Pursuant to Local Civil Rule 7.2(d), a copy of this unpublished decision is attached hereto as Exhibit D.
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Plaintiff will experience as a result. Plaintiff does not seek to prevent Defendants from carrying out his execution, or even from carrying out his execution by lethal injection, a fact that minimizes any risk of harm to Defendants. See Gomez v. U.S. Dist. Ct. for N. Dist. of Cal., 966 F.2d 460, 462 (9th Cir. 1992) (Noonan, J., dissenting from grant of writ of mandate) (“The state will get its man in the end. In contrast, if persons are put to death in a manner that is determined to be cruel, they suffer injury that can never be undone, and the Constitution suffers injury that can never be repaired.”).
Plaintiff expressly acknowledges the availability of alternative protocols for inducing and maintaining anesthesia that will significantly mitigate the risk that he will consciously suffer excruciating pain during the course of his execution. The lethal medications prescribed by physicians under Oregon’s Death with Dignity Act are long-acting barbiturate anesthetics including pentobarbital or secobarbitol. See Seventh Annual Report on Oregon’s Death with Dignity Act at Table 4, available at http://egov.oregon.gov/DHS/ph/pas/docs/table4.pdf. In addition, the AVMA’s Panel on Euthanasia prescribes an intravenous injection of pentobarbital, a long-acting barbiturate anesthetic. (Concannon Aff. ¶ 4.) In both protocols, the same substance, if properly administered, produces both unconsciousness and death, eliminating the risk that a patient will regain consciousness prior to death. (Id.) Pursuant to N.C. Gen. Stat. §§ 15-187 and 15-188, as interpreted by the North Carolina Supreme Court in State v. Hunt, 357 N.C. 454, 591 S.E.2d 502 (2003), it is within the Defendants’ discretion to add a long-acting barbiturate to their anesthesia protocol in order to make the execution more humane, just as they previously added potassium chloride. Plaintiff only asks that Defendants adopt a protocol for anesthesia that affords him the same assurance of dying without conscious suffering of excruciating pain that is given to household pets.
Moreover, there is no statutory provision setting forth the particular practices and procedures to be followed when inducing anesthesia, nor the minimum professional qualifications of the personnel charged with administering anesthesia as a precursor to lethal injection. Therefore, it is clearly within Defendants’ discretion to establish appropriate protocols for monitoring Plaintiff level
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of consciousness prior to injection of other chemical; to require the presence of medical personnel credentialed, licensed, and proficient in the practice of anesthesia to ensure that a proper depth of anesthesia is maintained throughout the lethal injection process; to eliminate unnecessary physical barriers to direct visual and tactile monitoring of Plaintiff; and to make provisions for responding to foreseeable issues that may arise during the execution.
In Morales v. Hickman, the court identified two ways in which the California Department of Corrections could modify its lethal injection protocol to correct the flaws identified by the inmate – flaws which are strikingly similar to those raised in Plaintiff’s Complaint. First, the defendants could “use only sodium thiopental or another barbiturate or combination of barbiturates in Plaintiff's execution.” 2006 WL 335427, at *8; see also Morales v. Hickman, No. 5:06-CV-00219-JF, Order on Def.’s Mot. to Proceed with Execution Under Alternative Condition to Order Denying Prelim. Inj. (N.D. Cal. Feb. 21, 2006) (clarifying protocols to be followed by the California Department of Corrections in carrying out this option) (attached as Exhibit D). Alternatively, the defendants could “[a]gree to independent verification, through direct observation and examination by a qualified individual or individuals, in a manner comparable to that normally used in medical settings where a combination of sedative and paralytic medications is administered, that Plaintiff in fact is unconscious before either pancuronium bromide or potassium chloride is injected.” 2006 WL 335427, at *8.
There is no obstacle, other than Defendants’ own refusal, to the adoption of these alternative procedures or other measures that would ensure proper induction and monitoring of anesthesia throughout the course of the lethal injection process. The inconvenience and limited expense of complying with the Eighth Amendment prohibition against cruel and unusual punishment simply does not approach the magnitude of irreparable harm Plaintiff will suffer if the Court does not issue a preliminary injunction.
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Finally, Plaintiff’s lack of undue delay in bringing this claim further tips the equitable balance in Plaintiff’s favor. See Nelson v. Campbell, 541 U.S. 637, 649-50 (2004). From the time of his conviction until the denial of his Petition for Writ of Habeas Corpus on 27 February 2006, Plaintiff has continuously pursued state and federal appeals and post-conviction proceedings in an effort to obtain a new trial or sentencing hearing. In fact, in 2003, the Fourth Circuit concluded that Plaintiff was entitled to a new sentencing hearing because of constitutional errors affecting his death sentence. Brown v. Lee, 319 F.3d 162 (4th Cir. 2003). Due to an intervening decision of the United States Supreme Court, his Petition was subsequently dismissed without re-sentencing. Any challenge to Defendants’ anesthesia protocol prior to the denial of his federal habeas petition would have been premature, given that a favorable habeas ruling would have mooted a claim under Section 1983 and rendered any ruling on this matter advisory. See Beardslee, 395 F.3d at 1069 n.5 (suggesting that a condemned inmate’s challenge to lethal injection protocols may not become ripe for judicial review until the inmate’s execution is imminent).
After the United States Supreme Court denied certiorari with respect to Plaintiff’s habeas petition, eliminating all legal barriers to the State’s ability to schedule Plaintiff’s execution, Plaintiff moved promptly to assert his claim, filing his Complaint the same day the Supreme Court’s order was issued and before an execution date was set. III. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS
Plaintiff satisfies the first two factors of the Blackwelder analysis and should be granted a preliminary injunction if he “has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.” Rum Creek, 926 F.2d at 359. The facts detailed above regarding the significant deficiencies and unnecessary risks created by Defendants’ anesthesia protocol raise serious questions going to the merits of Plaintiff’s claims and warranting the issuance of preliminary injunctive relief.
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A. Plaintiff’s Claim is Cognizable Under Section 1983 As previously stated, Plaintiff does not challenge the legality of his conviction or sentence, nor does he seek to prevent the State from executing him in a lawful manner. Plaintiff’s challenge relates to the anesthesia protocol used by Defendants as a medical precursor to execution. This claim therefore arises under 42 U.S.C. § 1983. See Nelson v. Campbell, 541 U.S. 637, 647 (2004) (focusing on whether the petitioner’s challenge “would necessarily prevent” the state from carrying out the execution); Reid v. Johnson, 105 Fed. Appx. 500, 503 (4th Cir. Aug. 2, 2004) (concluding, in light of Nelson v. Campbell, that the appellant’s challenge to “the particular lethal injection protocol the State plans to use” was cognizable under Section 1983).5 B. Defendants’ Anesthesia Protocol Violates the Eighth Amendment Although the United States Supreme Court has determined that the punishment of death itself does not violate the Eighth Amendment proscription against cruel and unusual punishment, it has held that the Eighth Amendment prohibits “the infliction of unnecessary pain in the execution of the death sentence.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947); see also Gregg v. Georgia, 428 U.S. 153, 173 (1976) (holding that the Eighth Amendment prohibits the “unnecessary and wanton infliction of pain”); Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal. 1994) (execution by lethal gas in California held unconstitutional where evidence indicated “death by this method is not instantaneous. Death is not extremely rapid or within a matter of seconds. Rather . . . inmates are likely to be conscious for anywhere from fifteen seconds to one minute from the time that the gas strikes their face” and “during this period of consciousness, the condemned inmate is like to suffer intense physical pain”), aff’d, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds by 519 U.S. 918 (1996). This is consistent with the long-standing principle that “[p]unishments are cruel when they involve . . . a lingering death.” In re Kemmler, 136 U.S. 436, 447 (1890).
5 Pursuant to Local Civil Rule 7.2(d), a copy of this unpublished decision is attached hereto as Exhibit D.
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Case 5:06-ct-03018-H Document 3-1 Filed 02/28/2006 Page 25 of 31
Indeed, punishment is particularly constitutionally offensive if it involves the foreseeable infliction of suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973) (citing Resweber and finding that, had failed execution been intentional and not unforeseen, punishment would have been, like torture, “so degrading and indecent as to amount to a refusal to accord the criminal human status”). Where the measure of pain inflicted in executing a condemned prisoner results from an unusual circumstance that involves “something more than the mere extinguishment of life,” the Eighth Amendment’s prohibition against cruel and unusual punishment is implicated. See id. at 265 (quoting Kemmler, 136 U.S. at 447).
Accordingly, Defendants’ selection of potassium chloride, which causes excruciating pain upon injection, to cause Plaintiff’s can only be constitutionally sound if Defendants employ an appropriate anesthesia protocol prior to its administration. Pursuant to the “deliberate indifference to serious medical needs” framework established in Estelle v. Gamble, 429 U.S. 97 (1976), and its progeny, Plaintiff’s challenge to Defendants’ anesthesia protocol should be analyzed just as an inmate’s challenge to an anesthesia protocol as a precursor to medical treatment would be analyzed. See Nelson v. Campbell, 541 U.S. 637, 644-45 (2004). Defendants intend to employ an inadequate anesthesia protocol that will subject Plaintiff to an objectively serious risk of suffering excruciating pain and that Defendants are acting with deliberate indifference to the inadequacies of the anesthesia protocol and resulting risk of harm to Plaintiff. Plaintiff has raised serious questions going to both the subjective and objective prongs of the deliberate indifference analysis, warranting entry of a preliminary injunction.
For all of the reasons previously discussed, Defendants’ anesthesia protocol creates an objectively serious risk that Plaintiff will fail to receive adequate anesthesia and will be conscious for the duration of his execution, causing him to suffer excruciating pain upon injection of pancuronium bromide and potassium chloride. The evidence available at this time also demonstrates that Plaintiff will be able to prove the subjective component of his Eighth Amendment claim by showing
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Case 5:06-ct-03018-H Document 3-1 Filed 02/28/2006 Page 26 of 31
deliberate indifference by Defendants. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). “[D]eliberate indifference entails something more than mere negligence . . . [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835. This claim requires that a prison official know of and disregard an objectively serious condition, medical need, or risk of harm. See id. at 837; De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003); Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).
Evidence that an official is aware of a risk of harm, but chooses to ignore it, is sufficient to establish deliberate indifference. Odom v. South Carolina Dep’t of Corr., 349 F.3d 765 (4th Cir. 2003). The Odom court reversed summary judgment for defendant in a Section 1983 case where the plaintiff produced evidence that prison officials were aware of the risk posed to him by other inmates but disregarded his request for help. The plaintiff had complained to prison officials that the other inmates were threatening him. The court found this to be evidence of deliberate indifference and allowed the plaintiff to proceed to trial. Id.; see also LaFaut v. Smith, 834 F.2d 389, 394 (4th Cir. 1987) (finding prison officials’ conduct in ignoring or postponing response to a known medical need “out of mere convenience or apathy” to be deliberate indifference).
Plaintiff’s suit is not premised on the possibility that some unforeseen error or unavoidable accident might cause him to be aware and in excruciating pain during his execution. On the contrary, he alleges that the significant risk of botched executions is an entirely foreseeable consequence of the conditions imposed by, and failings of, Defendants’ inadequate execution protocol. Defendants have instituted an anesthesia protocol that creates a significant risk of inflicting excruciating pain and have deliberately chosen to ignore that risk.
The fact that Defendants’ protocol calls for the administration of sodium pentothal, a barbiturate anesthetic, prior to the injection of pancuronium bromide and potassium chloride demonstrates an awareness that anesthesia is a necessary element of a humane execution protocol. Yet, despite this awareness, Defendants have adopted an anesthesia protocol that deviates
26

Case 5:06-ct-03018-H Document 3-1 Filed 02/28/2006 Page 27 of 31
significantly from accepted medical practices – particularly in the areas of monitoring, qualifications and training of personnel, and facilities used for administration of anesthesia. (Heath Aff. ¶¶ 24-27, 30-42, 45-48; Boysen Aff. ¶¶ 5-11; Maree Aff. ¶¶ 7-11.) By failing to design a protocol for inducing and monitoring anesthesia adequate to ensure that sodium pentothal will, in fact, be properly administered into circulation, Defendants have disregarded a foreseeable and known risk that inmates will remain conscious and suffer excruciating pain before their deaths.
Moreover, Defendants have failed to conduct any type of independent investigation into the appropriate medical standards of practice for administering and monitoring anesthesia and have refused to consider available alternative protocols, such as the use of long-acting barbiturate and the presence of medical personnel credentialed, licensed, and proficient in the practice of anesthesia, as discussed in Section II.B, supra pp. 21-22.
Even if Defendants’ experiences with their anesthesia protocol did not reveal grave risks of improper administration and resulting suffering, which seems particularly unlikely given the glaring absence of safeguards in Defendants’ protocol, the grievances and lawsuits filed by North Carolina inmates have brought to Defendants’ attention the very issues raised in Plaintiffs’ Complaint. (See Compl., Ex. A; Page, Rouse, and Perkins Grievance Documents, attached as Exhibit A.) See also Rowsey v. Beck, No. 5:04-CT-04-BO;6 Perkins v. Beck, No. 5:04-CT-643-BO. Defendants have been on notice of deficiencies in their anesthesia protocol at least since the filing of the Rowsey v. Beck litigation in January 2004. To date, Defendants have consistently refused to modify their protocol to remedy the inadequate monitoring practices, the absence of appropriately credentialed, licensed, and proficient anesthesia personnel, and the unnecessary physical barriers that give rise to a foreseeable risk of conscious suffering during execution by lethal injection.
6 Following the execution of Plaintiff Raymond Rowsey, the title of this action was changed to reflect Plaintiff George Page’s name and is now Page v. Beck, No. 5:04-CT-04-BO.
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Case 5:06-ct-03018-H Document 3-1 Filed 02/28/2006 Page 28 of 31
The choices made by other state correction departments and legislatures highlight the irresponsibility of the Defendants’ protocol. For instance, Connecticut’s protocol is developed in consultation with the Commissioner of Public Health. See Conn. Gen. Stat. § 54-100. Other states have mandated that the execution process must comply with accepted medical standards or be humane. See Idaho Code § 19-2716 (requiring executions to be conducted “in accordance with accepted medical standards” with “expert technical assistance” to ensure that death does not cause “unnecessary suffering”); Kan. Crim. Pro. Code Ann. § 22-4001 (requiring that drug combinations be “sufficient to cause death in a swift and humane manner”). Defendants could commit themselves to ensuring a humane process, but they have chosen not to do so, electing instead to deviate from accepted medical practices. Given the information available to Defendants, this course of action shows a conscious disregard for an objectively serious risk of harm to Plaintiff. IV. THE PUBLIC INTEREST FAVORS THE GRANTING OF A PRELIMINARY
INJUNCTION The final factor of the Blackwelder test also supports the entry of a preliminary injunction in this case. The public interest lies in avoiding the unnecessary infliction of conscious suffering of excruciating pain. Because Plaintiff alleges that the Defendants will violate his Eighth Amendment rights by executing him in accordance with their intended inadequate anesthesia protocol, it is paramount to the public interest that Plaintiff’s claims be resolved on the merits. “In considering an Eighth Amendment claim the court must be mindful that it embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” LaFaut v. Smith, 834 F.2d 389, 391 (4th Cir. 1987) (quoting Estelle v. Gamble, 429 U.S. 97 (1976)). Lethal injection became the predominant method of execution because it was previously perceived to be the most humane form of execution. To the extent the North Carolina General Assembly selected lethal injection on the assumption that it was painless, this selection demonstrates an intention to employ the most humane method of execution possible. However, there is now
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compelling evidence, in the form of eyewitness accounts and medical evidence and opinion, that anesthesia protocols used in connection with lethal injunction, like the one used in North Carolina, create a significant and unacceptable risk of inflicting unnecessary pain. Definitively resolving the important and pressing question of the constitutionality of Defendants’ anesthesia protocol serves the public interest.
There are no countervailing considerations suggesting that entry of a preliminary injunction would hurt the public interest. Plaintiff has not engaged in abusive delay, nor is this suit an attempt simply to put off his execution. Where an inmate presents a meritorious challenge of constitutional dimension and is not attempting to manipulate the judicial process, it cannot be in the public interest to allow Defendants to execute him using the very flawed procedures that he challenges.
CONCLUSION Plaintiff respectfully requests that the Court issue a preliminary injunction enjoining Defendants from using their inadequate protocol for inducing and maintaining anesthesia during the course of his execution because it unnecessarily places Plaintiff at serious risk of consciously suffering excruciating pain in violation of his Eighth Amendment right to be free from cruel and unusual punishment. In light of Plaintiff’s imminent execution, Plaintiff further requests that expedited consideration be given to his Motion for Preliminary Injunction. Respectfully submitted this the 28th day of February 2006.
/s/ J. Donald Cowan, Jr. _____________________ J. Donald Cowan, Jr. N.C. State Bar No. 0968 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 21927 Greensboro, NC 27420 Telephone: (336) 378-5200 Telecopier: (336) 378-5400 Email: don.cowan@smithmoorelaw.com
29

Case 5:06-ct-03018-H Document 3-1 Filed 02/28/2006 Page 30 of 31 /s/ Laura M. Loyek _________________________ Laura M. Loyek N.C. State Bar No. 28708 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 27525 Raleigh, NC 27611 Telephone: (919) 755-8700 Telecopier: (919) 755-8800 Email: laura.loyek@smithmoorelaw.com
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Case 5:06-ct-03018-H Document 3-1 Filed 02/28/2006 Page 31 of 31 CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION was served upon Defendants by hand-delivering a copy to the follow address:
Lavee Hamer General Counsel North Carolina Department of Correction 200 W. Jones Street Raleigh, NC 27699 This the 28th day of February, 2006.
/s/ J. Donald Cowan, Jr.____________________________ J. Donald Cowan, Jr. Attorney for Plaintiff
31

 
 Case 5:06-ct-03018-H Document 14-1 Filed 03/13/2006 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:06-CT-3018-H

WILLIE BROWN, JR., N.C. DOC #0052205,
Plaintiff,

v.

PLAINTIFF’S RESPONSE IN

OPPOSITION TO DEFENDANTS’

MOTION TO DISMISS

THEODIS BECK, Secretary, North Carolina Department of Correction, and MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina, and UNKNOWN EXECUTIONERS, Individually, and in their Official Capacities,

Local Civil Rule 7.1(e)(1)

Defendants.

Plaintiff Willie Brown, Jr., N.C. DOC #0052205, (hereinafter “Plaintiff”), through

counsel and pursuant to Local Civil Rule 7.1(e)(1), hereby submits this Response in Opposition

to Defendants’ Motion to Dismiss.

STATEMENT OF THE CASE

On 27 February 2006, Plaintiff filed this civil action pursuant to 42 U.S.C. § 1983,

challenging the protocol and procedures Defendants intend to employ to carry out Plaintiff’s

execution by lethal injection. Specifically, Plaintiff alleges that Defendants are determined to

use an inadequate protocol for anesthesia as a precursor to carrying out his death sentence, and as

a result, Plaintiff faces an unacceptable and unnecessary risk of suffering excruciating pain

during the course of his execution. Plaintiff makes no attack on his conviction or the validity of

his sentence to death by lethal injection. On 28 February 2006, Plaintiff filed a Motion for

Case 5:06-ct-03018-H Document 14-1 Filed 03/13/2006 Page 2 of 9
Preliminary Injunction requesting that the Court enjoin Defendants from using their inadequate protocol for inducing and maintaining anesthesia during the course of his execution.1
On 3 March 2006, this Court entered an Order directing the parties “to submit
information to the court to show whether or not Plaintiff had exhausted available administrative remedies at the time he filed the complaint.”2 On 7 March 2006, Defendants filed a Motion to
Dismiss, seeking dismissal of Plaintiff’s Complaint without prejudice for failure to exhaust
administrative remedies. However, on 7 March 2006, prior to or contemporaneously with the
filing of Defendants’ Motion to Dismiss, Plaintiff counsel received from the Inmate Grievance
Resolution Board a copy of the Grievance Examiner’s Findings and Disposition Order denying
Plaintiff’s grievance. (Proposed Am. Compl., Ex. C.) This response constitutes a final decision
with respect to Plaintiff’s administrative grievance.
Upon receiving the final decision of the Inmate Grievance Examiner, Plaintiff promptly
filed a Motion for Leave to File Amended Complaint to assert additional facts regarding his
exhaustion of administrative remedies. Defendants’ Response in Opposition to Plaintiff’s
Motion for Leave to File Amended Complaint was filed and served on 10 March 2006.
Contemporaneously with the filing of this Response, Plaintiff is filing a Reply in Support of Motion for Leave to File Amended Complaint,3 and that Motion is now ripe for ruling.
1 Pursuant to N.C. Gen. Stat. § 15-194(1), Defendants may immediately schedule a date for carrying out Plaintiff’s execution after receiving notice that “[t]he United States Supreme Court has filed an opinion upholding the sentence of death following completion of the initial State and federal postconviction proceedings.” Plaintiff’s Petition for Writ of Certiorari was denied by the United States Supreme Court on 27 February 2006, resolving his federal habeas proceeding and eliminating all legal barriers to Defendants’ ability to schedule Plaintiff’s execution. Plaintiff has therefore requested expedited consideration of his Motion for Preliminary Injunction. 2 Plaintiff’s Response to this Order was filed 8 March 2006 and is incorporated herein by reference pursuant to Fed. R. Civ. P. 10(c). 3 Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, Plaintiff incorporates by reference the arguments set forth in his Motion for Leave to File Amended Complaint and Reply in Support of Motion for Leave to File Amended Complaint.
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As reflected in his Proposed Amended Complaint, with the issuance of the final decision of the Inmate Grievance Resolution Board on 7 March 2006, Plaintiff has completely exhausted his administrative remedies as required under 42 U.S.C. § 1997e(a). The administrative review process was already completed at the time Defendants brought the instant Motion to Dismiss on 7 March 2006. For the reasons set forth below, this Court should deny Defendants’ Motion and allow Plaintiff to proceed with the causes of actions asserted in his Amended Complaint.
ARGUMENT I. THE REQUESTED AMENDMENT MOOTS DEFENDANTS’ MOTION TO
DISMISS. Should this Court grant Plaintiff’s Motion for Leave to File Amended Complaint, Defendants’ Motion to Dismiss would be rendered moot and should be denied on that basis. In seeking dismissal of Plaintiff’s Complaint without prejudice, Defendants rely on the allegations set forth paragraph 6 of Plaintiff’s Complaint. (Defs.’ Mem. Supp. Mot. Dismiss at 2.) These are the very allegations Plaintiff has sought to amend in his Motion for Leave to File Amended Complaint. As amended, Plaintiff’s Complaint reflects that Plaintiff had completed each stage of the administrative review process and had received a final decision with respect to his grievance at the time he filed the Amended Complaint. (Proposed Am. Compl. ¶ 6, Ex. A, Ex. B, Ex. C.) Thus, Plaintiff’s Proposed Amended Complaint is not subject to dismissal on the grounds set forth in Defendants’ Motion.
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely given when justice so requires.” The requested amendment to Plaintiff’s Complaint presents additional facts regarding exhaustion and eliminates any deficiencies with respect to Plaintiff’s exhaustion of administrative remedies. If this Court grants Plaintiff’s Motion for Leave to File Amended Complaint, it should deny Defendants’ Motion to Dismiss as moot.
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Case 5:06-ct-03018-H Document 14-1 Filed 03/13/2006 Page 4 of 9
II. DEFENDANTS’ MOTION SHOULD BE DENIED BECAUSE DEFENDANTS CANNOT PROVE FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rule of Civil Procedure should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Greenhouse v. MCG Capital Corp., 392 F.3d 650, 655 (4th Cir. 2004). Defendants’ Motion to Dismiss should be denied because Defendants cannot prove that Plaintiff has failed to state a claim upon which relief may be granted.
As Defendants acknowledge, in Anderson v. XYZ Corr. Health Servs., 407 F.3d 674 (4th Cir. 2005), the Fourth Circuit considered whether the Prison Litigation Reform Act of 1995 amendment to 42 U.S.C. § 1997e(a) (“PLRA”) allows a defendant to raise non-exhaustion as an affirmative defense or requires a plaintiff to plead his exhaustion of remedies. Adopting the position of the majority of federal circuit courts, the Fourth Circuit concluded that “the PLRA’s exhaustion-of-remedies requirement does not impose a heightened pleading obligation on an inmate. Instead, an inmate’s failure to exhaust administrative remedies is an affirmative defense to be pleaded and proven by the defendant.” Id. at 683 (emphasis added). Although in rare cases a district court may dismiss a complaint where the failure to exhaust is apparent from the face of the complaint, in general the Fourth Circuit “reject[ed] the contention that an inmate’s failure to allege exhaustion of remedies amounts to a failure to state a claim upon which relief can be granted.” Id. at 681, 683.
The Second Circuit recently concluded that failure to exhaust under the PLRA is an affirmative defense that can be waived by the defendant if not timely asserted. Handberry v. Thompson, 436 F.3d 52, 59-60 (2d Cir. 2006). See also Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005) (recognizing that the § 1997e(a) exhaustion requirement is not jurisdictional and
4

Case 5:06-ct-03018-H Document 14-1 Filed 03/13/2006 Page 5 of 9
may be waived if the defendant does not raise it); Smith v. Mensinger, 293 F.3d 641, 647 n.3 (3d Cir. 2002) (“[E]xhaustion is an affirmative defense which can be waived if not properly preserved by a defendant.”).
The allegations set forth in Plaintiff’s Proposed Amended Complaint conclusively establish that Plaintiff has exhausted all available administrative remedies. It is also clear that Defendants’ Motion to Dismiss for failure to exhaust was made contemporaneously with or after issuance of the Inmate Grievance Examiner’s Findings and Disposition Order denying Plaintiff’s grievance on 7 March 2006. (Proposed Am. Compl., Ex. C.) In fact, Plaintiff’s counsel was served with Defendants’ Motion to Dismiss several hours after receiving the final decision of the Inmate Grievance Review Board. Thus, at the time Defendants filed their Motion to Dismiss for failure to exhaust, Plaintiff had already exhausted his administrative remedies. Defendants cannot prove otherwise, as is their burden under the Fourth Circuit’s decision in Anderson.
Defendants have cited no decisions by any federal courts of appeal or published decisions of this Court that would support the granting of a motion to dismiss filed after exhaustion has occurred. In their Objection to Motion for Leave to File Amended Complaint, Defendants cite to Hargett v. Beck, 5:04-CT-132-FL (E.D.N.C. 2005), in which the Court granted a motion to dismiss without prejudice where the plaintiff completed the administrative review process several days after filing his complaint. However, the order in Hargett was issued prior to the Fourth Circuit’s decision in Anderson, clarifying that exhaustion is not a pleading requirement but rather an affirmative defense. Moreover, the order in Hargett does not reflect any amendment of the complaint following the completion of administrative review.
This Court has addressed the issue presented by Defendants’ Motion to Dismiss on at least two other occasions and concluded that dismissal was not warranted where the defendants
5

Case 5:06-ct-03018-H Document 14-1 Filed 03/13/2006 Page 6 of 9
could not prove, at the time of filing of the motion to dismiss, that the plaintiff had failed to exhaust administrative remedies. In Page v. Beck, No. 5:04-CT-04-BO (E.D.N.C. Nov. 30, 2005) (attached hereto as Exhibit A), the Court denied a motion to dismiss filed by the defendants after the plaintiffs had fully exhausted their administrative remedies. Additionally, in Boyd v. Beck, 404 F. Supp. 2d 879, 882-83 (E.D.N.C. 2006), the Court held that failure to exhaust must be pled and proved by the defendants, and because the defendants did not attach affidavits or provide other evidence regarding the status of administrative remedies, the record before the Court did not support the dismissal of plaintiff’s complaint.
In light of Plaintiff’s exhaustion of all available administrative remedies, dismissal of his Complaint without prejudice will not serve the purposes underlying the exhaustion requirement of the PLRA. Rather, dismissal will result in a waste of judicial resources, with nothing to be gained by forcing Plaintiff to simply refile his action following dismissal, alleging the very facts already before the Court in Plaintiff’s Proposed Amended Complaint. The Supreme Court has recognized that:
Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate’s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, internal review might ‘filter out some frivolous claims.’ And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy. Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (quoting Booth v. Churner, 532 U.S. 731, 737 (2001) and citing McCarthy v. Madigan, 503 U.S. 140, 146 (1992)).
6

Case 5:06-ct-03018-H Document 14-1 Filed 03/13/2006 Page 7 of 9
Dismissal of Plaintiff’ action at this point will do nothing to further these purposes. First, Defendants denied Plaintiff’s grievance without taking corrective action that would have obviated the need for litigation with respect to Plaintiff’s claims. Second, as demonstrated by the affidavits and other evidence submitted in support of Plaintiff’s Motion for Preliminary Injunction, Plaintiff’s claim cannot be regarded as “frivolous” and is deserving of consideration on the merits.4 Third, to the extent adjudication of Plaintiff’s claims may be facilitated by the administrative record, that record is before the Court, attached to the Plaintiff’s Proposed Amended Complaint.
There is no dispute that Plaintiff has fully exhausted his administrative remedies nor that the requested dismissal would be without prejudice such that Plaintiff could immediately refile an action identical to the Proposed Amended Complaint already before this Court. Because affirmative allegations regarding exhaustion have been presented to the Court and the interests underlying the PLRA’s exhaustion requirement have been satisfied, dismissal would only serve to needlessly delay the Court’s consideration of the merits of Plaintiff’s claims. Interests of justice and efficiency are therefore served by allowing Plaintiff to proceed with the causes of actions asserted in his Amended Complaint.
CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendants’ Motion to Dismiss.
4 Indeed, this Court specifically concluded that a similar challenge to Defendants’ protocol for inducing and maintaining anesthesia prior to execution by lethal injection was “neither frivolous nor malicious.” Rowsey v. Beck, No. 5:04-CT-04-BO (E.D.N.C. Jan. 20, 2004) (attached hereto as Exhibit B).
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Case 5:06-ct-03018-H Document 14-1 Filed 03/13/2006 Page 8 of 9
Respectfully submitted this the 13th day of March 2006.
/s/ J. Donald Cowan, Jr. J. Donald Cowan, Jr. N.C. State Bar No. 0968 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 21927 Greensboro, NC 27420 Telephone: (336) 378-5200 Telecopier: (336) 378-5400 Email: don.cowan@smithmoorelaw.com
/s/ Laura M. Loyek Laura M. Loyek N.C. State Bar No. 28708 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 27525 Raleigh, NC 27611 Telephone: (919) 755-8700 Telecopier: (919) 755-8800 Email: laura.loyek@smithmoorelaw.com
8

Case 5:06-ct-03018-H Document 14-1 Filed 03/13/2006 Page 9 of 9 CERTIFICATE OF SERVICE
This is to certify that on this date, I electronically filed the foregoing PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following:
Thomas J. Pitman, Special Deputy Attorney General (tpitman@ncdoj.com) James P. Smith, Special Counsel North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602-0629 This the 13th day of March, 2006.
/s/ Laura M. Loyek Laura M. Loyek Attorney for Plaintiff
9

 
 Case 5:06-ct-03018-H Document 28 Filed 04/03/2006 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO.5:06-CT-3018-H

WILLIE BROWN, JR., N.C. DOC #0052205,
Plaintiff,

REPLY IN SUPPORT OF

v.

PLAINTIFF'S MOTION FOR

PRELIMINARY INJUNCTION

THEODIS BECK, Secretary, North Carolina Department of Correction, and MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina, and UNKNOWN EXECUTIONERS, Individually, and in their Official Capacities,

Local Civil Rule 7.1(f)(1)

Defendants.

Plaintiff Willie Brown, Jr., N.C. DOC #0052205, (hereinafter "Plaintiff'), through

counsel and pursuant to Local Civil Rule 7.1(f), hereby submits this memorandum in reply to

Defendants' Opposition to Plaintiff s Motion for Preliminary Injunction.

STATEMENT OF THE CASE

This matter is before the Court on Plaintiff s Amended Complaint filed 8 March 2006.

Plaintiff filed this action pursuant to 42 U.S.C. § 1983, challenging the protocol and procedures

Defendants intend to employ to carry out Plaintiffs execution by lethal injection. Specifically,

Plaintiff alleges that Defendants are determined to use an inadequate protocol for anesthesia as a

precursor to carrying out his death sentence, and as a result, Plaintiff faces an unacceptable and

unnecessary risk of suffering excruciating pain during the course of his execution in violation of

his right to be free from cruel and unusual punishment under the Eighth and Fourteenth

Case 5:06-ct-03018-H Document 28 Filed 04/03/2006 Page 2 of 35
Amendments of the United States Constitution. Plaintiff makes no attack on his conviction or the validity of his sentence to death by lethal injection.
On 28 February 2006, Plaintiff filed in this Court a Motion for Preliminary Injunction and accompanying Memorandum of Law. In this Motion, Plaintiff seeks narrowly drawn equitable relief to prevent Defendants from carrying out his execution using their intended inadequate protocol for inducing and maintaining anesthesia, pending resolution of the merits of his claims under Section 1983. On 20 March 2006, Defendants filed their Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction.
ARGUMENT I. PLAINTIFF'S EVIDENCE IN SUPPORT OF PRELIMINARY INJUNCTION
DEMONSTRATES A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS. In his Motion for Preliminary Injunction and accompanyIng Memorandum of Law, Plaintiff has presented substantial evidence in support of his request that Defendants be preliminarily enjoined from carrying out his execution using their intended, inadequate protocol for inducing, maintaining, and monitoring anesthesia, to allow fuller development of the record through discovery and trial on the merits of Plaintiffs claim. This evidence includes the affidavits of Plaintiffs expert anesthesiologists, Mark 1. S. Heath, M.D. and. Philip G. Boysen, M.D.; Ms. Nancy Bruton-Maree, CRNA; and Kevin Concannon, D.V.M. Plaintiffs experts have explained that Defendants' lethal injection protocol involves the injection of two drugs, pancuronium bromide and potassium chloride, known to cause excruciating pain. As a result, there is a heightened need for anesthesia to be properly induced and monitored by trained and experienced practitioners. Plaintiffs evidence further demonstrates that Defendants' current protocol calls for administration of anesthesia in the absence of medical personnel credentialed,
2

Case 5:06-ct-03018-H Document 28 Filed 04/03/2006 Page 3 of 35
licensed, and proficient in the practice of anesthesia, without medically appropriate criteria for assessing level of consciousness, and without opportunities for direct monitoring of the inmate. These conditions create a serious risk that anesthesia will not be appropriately administered and that Plaintiff will consciously suffer excruciating pain during the course of his execution in violation of his Eighth Amendment rights.
The evidence offered in support of Plaintiff s Motion for Preliminary Injunction, including that set forth below, demonstrates that Plaintiff will suffer immediate and irreparable harm if Defendants are permitted to proceed with his scheduled execution using their current inadequate protocol for anesthesia. There can be no question that the excruciating pain that Plaintiff will suffer during his execution constitutes irreparable harm. See Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). Moreover, because Plaintiffs Amended Complaint alleges a violation of constitutional rights under 42 U.S.C. § 1983, "the showing necessary to meet the irreparable harm requirement for a preliminary injunction should be less strict than in other instances where future monetary remedies are available." Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 362 (4th Cir. 1991). In contrast, entry of a preliminary injunction will result in only minimal harm to Defendants, because there is no fear of the State's judgment being avoided or denied; in fact, Plaintiff does not seek such relief On balance, the greater hardship would be suffered by Plaintiff, who will otherwise die on 21 April 2006 without the opportunity to engage in discovery or litigate his constitutional claims, rather than by Defendants, who remain able to execute Plaintiff in an constitutionally permissible fashion.
In their response opposing preliminary injunction, Defendants have relied upon the affidavits of Warden Polk and Dr. Dershwitz to counter Plaintiffs showing of irreparable harm and likelihood of success on the merits. However, much of the evidence offered by Defendants
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in these affidavits fails to rebut, or even respond to, the evidence offered by Plaintiff. For instance, Warden Polk claims in his affidavit that "all medical acts" involved in the lethal injection protocol are carried out by individuals with the skills required of emergency medical technicians, registered nurses, or medical doctors. (Polk Aff. , 10.) Neither this statement, nor any other part of his Affidavit addresses whether the personnel responsible for inducing, maintaining, and monitoring anesthesia are appropriately trained and qualified in the practice of anesthesia. Warden Polk does not rebut the evidence offered by Plaintiff demonstrating that the administration of anesthesia is complex and risky and requires advanced medical expertise beyond that of a registered nurse, EMT, or non-anesthesiologist physician. (Heath Aff. " 3233; Maree Aff., 2; Concannon Aff. , 7.)1
As another example, Dr. Dershwitz describes in some detail in his Affidavit the expected reaction of a patient upon receiving a 3000 mg dose of sodium pentothal. (Dershwitz Aff. " 715.) However, Plaintiff has previously acknowledged that 3000 mg is a sufficient dosage to
render an inmate unconscious if this dose is actually administered into circulation. (PI.'s Mem.
at 10.) Thus, Dr. Dershwitz's testimony fails to respond to the crux of Plaintiff's Amended Complaint, which is that deficiencies in Defendants' anesthesia protocol create an unnecessary and unacceptable risk that the sodium pentothal will not be properly administered, meaning that the full dosage of anesthetic will not reach the inmate prior to administration of the paralyzing pancuronium bromide and painful potassium chloride injections.
To the extent Defendants' evidence in opposition does respond to the showing made by Plaintiff, it is clear that the experts for Plaintiff and Defendant differ on a number of significant points, including the adequacy of the anesthesia protocol used by Defendants, the risks 1 The Affidavits of Dr. Mark 1. S. Heath, Dr. Kevin Concannon, and Nancy Bruton-Maree, are attached as Exhibits F, H, and I, respectively, to Plaintiffs Memorandum in Support of Motion for Preliminary Injunction.
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associated with those protocols, the standards of care applicable to administration of anesthesia in advance of a medical procedure known to be agonizing, and the availability of alternative procedures for inducing and monitoring anesthesia. Given the magnitude of the harm that will be suffered by Plaintiff, these disputes of material fact surrounding Defendants' anesthesia protocol "raise[ ] questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation." Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353,359 (4th Cir. 1991); see also Blackwelder Furn. Co. v. Seileg Mfg. Co., 550 F.2d 189, 194-95 (4th Cir. 1977) ("[W]here serious issues are before the court, it is a sound idea to maintain the status quo ante litem.")
Based on the evidence offered by Plaintiff in support of preliminary injunction, without the benefit of full fact discovery or any expert discovery, a trier of fact could resolve each of the disputed questions listed above in Plaintiffs favor and ultimately conclude that Defendants' protocol for anesthesia creates an unacceptable and unnecessary risk of conscious suffering in violation of Plaintiffs Eighth Amendment rights. Plaintiff has therefore met the less onerous burden of demonstrating likelihood of success on the merits so as to warrant a preliminary injunction pending the resolution of this litigation.
In further reply to Defendants' Opposition to Plaintiff s Motion for Preliminary Injunction, Plaintiff offers the following response to specific points raised in the affidavits of Warden Polk and Dr. Dershwitz:
A. Defendants' Protocol Fails to Ensure that the Personnel Responsible for Anesthesia are Appropriately Trained and Qualified.
In his Affidavit, Warden Polk describes the current North Carolina lethal injection process, including the personnel responsible for performing various functions in connection with the execution. He states that the persons injecting the chemicals are under observation of
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"qualified, licensed medical professionals.,,2 (Polk Aff. ~ 10.) However, Warden Polk does not represent that any of the personnel participating in executions are credentialed, licensed, and proficient in the field of anesthesiology. The record before this Court demonstrates that the individuals responsible for administering the injections, including the sodium pentothal used to induce anesthesia, possess no medical expertise whatsoever. (Polk Dep. at 103, Exhibit A to Errata Sheet at 3.) Moreover, the Warden's statement that persons performing "medical acts" are trained as registered nurses or EMTs only confirms the information contained in licensing documents submitted by Plaintiff in support of his Motion for Preliminary Injunction. (PI. 's Mem., Exhibit E.) Defendants' own evidence confirms that there is no requirement that the individuals who are responsible for the provision of general anesthesia possess any training in the field of anesthesiology. Warden Polk also acknowledges that the "NCDOC conducts no specialized, technical training for the medical professional members of the execution team." (Polk Aff. ~ 10.)
Plaintiff s expert evidence demonstrates that the individuals employed by Defendants lack the advanced training necessary to properly administer anesthesia and monitor consciousness. Dr. Heath has identified numerous foreseeable issues that may arising during the administration of anesthesia and has testified that anesthesia "can only be safely performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia services." (Heath Aff. ~~ 30, 32.) Moreover, only persons trained in anesthesia are able to properly assess whether the inmate has attained the degree of unconsciousness necessary to render him insensitive to pain. (Id. ~~ 33-35.) For this reason, in North Carolina and
2 Warden Polk's Affidavit also explains that "appropriately qualified personnel" are responsible for preparing the syringes containing each of the chemicals used during the execution and inserting intravenous catheters into the inmate's veins. (Polk Aff. ~~ 6(b), (c).) However, labeling these individuals as "appropriately qualified" provides no information regarding their medical training or experience in the field of anesthesia, which is the issue raised by Plaintiffs Amended Complaint.
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elsewhere, physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general anesthesia. (Id. ~ 33.)
Additionally, Warden Polk states that the personnel injecting the chemicals "are under observation of qualified, licensed medical professionals." (Polk Aff. ~ 10.) To the extent that this statement refers to the registered nurses and EMTs discussed above, oversight by persons lacking training and expertise in anesthesiology does not suffice to bring Defendants' protocol into compliance with accepted medical standards. To the extent that the Warden is referring to the physician located in the small observation room directly adjacent to the death chamber, (Polk Dep. at 113-14), Plaintiffs evidence demonstrates that such observation is not possible. According to Ms. Bmton-Maree, who toured the execution facilities, an individual located in the observation room "can see at best only the head of the inmate and cannot see the inmate's right arm or the lines and other equipment administering the IV fluids." (Maree Aff. ~ 10.) A curtain separating the inmate from the executioners within the execution chamber prevents anyone outside the chamber from observing the personnel administering injections. (See Polk Dep. at 81-82; Beck Dep. at 19-20; Diagram3 (attached hereto as Exhibit A).)
In his Affidavit, Dr. Dershwitz takes the position that qualified personnel with training in anesthesiology "are not required to participate in a judicial execution because the 3000-mg dose of thiopental sodium reliably produces unconsciousness for a period far in excess of that required to complete the administration of pancuronium and potassium chloride." (Dershwitz Aff. ~ 29.) He also opines that, "[s]ince such a large overdose of thiopental sodium is used in a judicial execution in North Carolina, there is no need to have an expert clinician monitoring the depth of anesthesia." (Id. ~ 19.) These conclusions are apparently based upon Dr. Dershwitz's
3 This diagram of the execution area, which is not to scale, was marked as Exhibit 7 to the depositions of Warden Polk and Secretary Beck in Page v. Beck, No. 5:04-CT-4-BO.
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"pharmacokinetic analysis," which predicts the effect administration of 3000 mg of sodium pentothal would have on an average man. (Dershwitz Aff. ~~ 8-15.) However, such predictions depend entirely upon Dr. Dershwitz's assumption that the dosage of sodium pentothal will be successfully administered into the inmate's circulation. According to Dr. Heath, "Dr. Dershwitz misses the point, which is not that the specified quantity of thiopental is inadequate, but rather that there has been a failure to take all reasonable and easily taken steps to reasonably ensure that the full intended dose of thiopental will in fact be delivered into the prisoner's circulation." (Second Heath Aff. ~ 5.)
Dr. Dershwitz's assumption that an adequate dose of anesthetic will be administered fails to respond to Plaintiffs evidence that deficiencies in the Defendants' anesthesia protocol including the absence of personnel with appropriate training in anesthesia, the lack of medically appropriate standards for administering anesthesia or assessing consciousness, and barriers to direct monitoring of the inmate - create an unnecessary and unacceptable danger that the full dosage will not be delivered into circulation, and therefore, the inmate will not be rendered fully unconscious prior to administration of the painful lethal chemicals. Indeed, while Dr. Dershwitz asserts that the participation of qualified personnel is unnecessary because such a large dose is administered, the absence of personnel credentialed, licensed, and proficient in the practice of anesthesia significantly increases the likelihood that the full dosage will not be properly administered. As Dr. Heath explains, "Dr. Dershwitz's Affidavit does not address the probability of error in the administration of thiopental sodium during the execution process, nor does he address the reality that such errors are more likely to occur in the hands of personnel who are not credentialed, licensed, and proficient in the underlying knowledge, skills, and
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procedures upon which establishment of an appropriate plane of anesthesia throughout the lethal injection process is founded." (Second Heath Aff. ~ 7.)
Though the intended outcome of a judicial execution is the death of the inmate, this does not diminish the importance of ensuring that the inmate is fully unconscious and unable to experience pain during the execution process. According to Dr. Concannon, in a veterinary setting, "[t]he fact that a euthanized animal will not ultimately emerge from anesthesia does not lessen the importance of minimizing physical pain and mental distress to the patient. This remains my primary objective when euthanizing an animal." (Second Concannon Aff. ~ 10.) Indeed, the Defendants' stated reason for administering sodium pentothal is to "quickly render[ ] the inmate unconscious." (Dershwitz Aff. ~ 5(a)(ii); see also Polk Aff. ~ 6(a)(ii).) Plaintiffs evidence demonstrates that the failure to require that anesthesia be administered and monitored by medical personnel who are credentialed, licensed, and proficient in the practice of anesthesia creates an unacceptable and wholly unnecessary risk that the inmate will not be adequately anesthetized. As Dr. Heath has explained, a surgeon would not begin a medical procedure without frrst confirming with the anesthesiologist that an adequate plane of anesthesia has been established. (Second Heath Aff. ~ 9.) "Likewise, before proceeding with the introduction of pancuronium bromide and potassium chloride in the lethal injection process, it is essential that properly credentialed and licensed personnel and proficient in anesthesia induce and assess an appropriate plane of anesthesia in the prisoner." (Id)
Furthermore, Dr. Dershwitz's "pharmacokinetic analysis" and the conclusions he draws from these calculations are potentially inconsistent with toxicology data obtained from the Office of the Chief Medical Examiner ("OCME") for the four most recent executions conducted in North Carolina. Records indicate that blood samples were drawn at the prison before the
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inmates' bodies were transported to the OCME, and that further samples were subsequently

drawn hours later at the OCME. It appears that the blood samples were then delivered to an

outside laboratory for toxicology testing to identify the amount of thiopental sodium in the

samples. For instance, one of the blood samples for Mr. Perrie Dyon Simpson, who was

executed on 20 January 2006, indicates that it was drawn eight minutes post-mortem. (See

Simpson Toxicology Report (attached hereto as Exhibit E).) Records further indicate that

samples were drawn from various locations on the body, including left and right side and

subclavian and femoral vessels.

In the graphs attached to Dr. Dershwitz's affidavit, he predicts that, for a man of average

size, the expected concentration of sodium pentothal in the blood after ten minutes would be

approximately forty mcg/mL. (Dershwitz Aff., Exhibits B, C.) After twenty minutes, the

expected concentration would be approximately thirty-three mcg/mL. The toxicology analysis

for the four most recent North Carolina executions revealed the following data:

Inmate Name Execution Date Source of Blood Sample

Steven Van McHone

11 Nov. 2005

Left Femoral Vessel (drawn at Central Prison)

Left Femoral Vessel (drawn at OCME)

Elias Syriani 18 Nov. 2005

Right Femoral Vessel (drawn at Central Prison)

Left Femoral Vessel (believed to have been drawn at OCME)

Left Subclavian Vessel (believed to have been drawn at OCME)

Kenneth Boyd 2 Dec. 2005

Femoral Vessel (drawn at Central Prison)

Subclavian Vessel (believed to have been drawn at OCME)

Perrie Dyon Simpson

20 Jan. 2006

Unknown (drawn at Central Prison)

Thiopental Level 21 mg/L 1.5 mg/L 12 mg/L 4.4 mg/L 11 mg/L 29 mg/L 11 mg/L 42 mg/L

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Right Subclavian Vessel (believed to have been drawn at aCME)
Left Subclavian Vessel (believed to have been drawn at aCME)

12 mg/L 8.7 mg/L

(McHone Toxicology Report (attached hereto as Exhibit B); Syriani Toxicology Report (attached hereto as Exhibit C); Boyd Toxicology Report (attached hereto as Exhibit D); Simpson Toxicology Report (attached hereto as Exhibit E).)
At this stage in the proceedings, without the opportunity to conduct factual discovery regarding the circumstances under which these blood samples were drawn, Plaintiff cannot definitively represent to this Court what conclusions, if any, can be drawn from these results regarding the quantity of sodium pentothal actually administered to these inmates and their level of consciousness at the time of execution. However, the wide variation among the results raises legitimate question as to whether the sodium pentothal is being properly administered under Defendants' protocol so that an adequate dosage reaches the inmate prior to execution. Moreover, it is troubling that only one of the four toxicology results from the samples drawn at Central Prison approaches Dr. Dershwitz's the level Dr. Dershwitz would expect after ten minutes, and only two approach the expected value after twenty minutes. (Dershwitz Aff., Exhibits B, C.) These results raise serious questions going to the merits of Plaintiffs claims and warrant further discovery and development during the course of this litigation.
B. Defendants' Protocol Lacks Adequate Standards for Administering Injections and Monitoring Consciousness.
Defendants have presented conflicting information regarding the criteria applied by execution personnel to assess consciousness prior to administering pancuronium bromide and potassium chloride injections, raising serious questions as to what, if any, standards are being used to ensure that an inmate is adequately anesthetized and unable to feel pain. Indeed, Warden

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Polk has offered a number of different explanations as to how he knows that an inmate is sufficiently anesthetized following injection of sodium pentothal so that pancuronium bromide may be administered.
During his deposition in Page v. Beck, No. 5:04-CT-4-BO, on 31 August 2005, Warden Polk specifically stated that the fact that an inmate begins to snore satisfies him that an adequate plane of anesthesia has been achieved:
Q: Now how isit that you ensure or that you know the inmate is at that level of unconsciousness at the time you administer the Pavulon?
A: At the time that we administer Pavulon, the inmate is snoring deeply. It is obvious that he's asleep and unaware.
Q: So is that how you tell in every case that he has arrived at the proper level of unconsciousness?
A: In 24 executions I have never seen one that did not snore. (Polk Dep. at 39.) This testimony would seem to indicate that snoring continues for sufficient period of time to be characterized as "deep" and, during the course of this snoring, executioners proceed with the injection of the paralytic agent, pancuronium bromide. In fact, when he reviewed and signed his deposition on 24 October 2004, Warden Polk corrected the transcript to reflect that, when an inmate "ceased being able to count and started snoring, that was certain evidence that he was unconscious and unaware." (Compare Polk Dep., p. 40 with Errata Sheet, Exhibit A at p. 1.)
Yet, in his affidavit dated 20 March 2006, Warden Polk states that "each succeeding chemical solution [is] introduced within a few seconds after the injection of the immediately preceding chemical is completed." (Polk Aff. ~ 6(d).) This description of the execution procedure suggests that the injections are given one immediately after the other, without any period of delay between injections and without any attempt by members of the execution team to
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assess the inmate's plane of anesthesia to ensure unconSCIousness before the paralyzing pancuronium bromide and painful potassium chloride inj ections are administered.
Finally, in response to statements by Plaintiffs experts regarding the inappropriateness of snoring as in indicator of consciousness, Warden Polk has offered a third explanation. He now insists that the snoring begins and ends within the short time it takes to administer the injection of sodium pentothal. (Id. ~ 9.) This statement differs significantly from the Warden's prior deposition testimony and suggests that the cessation of snoring indicates to the Warden that the inmate is sufficiently unconscious to permit the executioners to proceed with the injections of pancuronium bromide and potassium chloride.
The variation in the Warden's testimony raises significant questions as to whether the Defendants' protocol includes any criteria for assessing consciousness after administration of anesthesia. Moreover, even if some efforts are made to monitor consciousness before administration of painful chemicals, Plaintiff s evidence suggests that the criteria relied upon are medically inappropriate.
The Warden's statement that no period of delay is observed under Defendants' protocol is particularly troubling in light of Dr. Dershwitz's assertion "that the dose of thiopental sodium used by North Carolina would render most people unconscious within 60 seconds from the time of the start of administration." (Dershwitz Aff. ~ 10) (emphasis added). There is no indication that Defendants' protocol allows even one minute for the anesthetic to fully circulate through the body and take full effect before proceeding with the next injection. Defendants have offered no explanation for their failure to include in their protocol any period of delay to permit assessment of the inmate's the level of anesthesia and to ensure that the inmate is, in fact, unconscious.
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In the event that snoring is used as a criterion for assessing consciousness, as Warden Polk asserts, this reflects some recognition that monitoring the level of anesthesia is a necessary component of a humane execution. Nevertheless, Defendants have made no efforts to ensure that this monitoring is performed by appropriately qualified personnel and pursuant to medically appropriate criteria. Although Dr. Dershwitz asserts in his affidavit that "[p]atients frequently snore following loss of consciousness," Dr. Heath has stated that "administration of a large anesthetic dose of thiopental would be associated with at most a couple of cycles of respiratory activity, such as a hiccup, cough, gasp, snore, snort, yawn, or sigh. Persistent snoring is utterly incompatible with the successful delivery of many grams of thiopental into the circulation." (Second Heath Aff. ~ 16.) Ms. Maree agrees that, "when a dose of3000 mg of thiopental sodium is administered a patient should progress rapidly from loss of consciousness to apnea (stopped breathing). Persistent snoring is not consistent with this progression." (Second Maree Aff. ~ 9.) A finder of fact could thus conclude that Defendants' protocol either lacks standards for assessing consciousness and ensuring an appropriate plane of anesthesia or relies upon wholly inappropriate criteria in making this assessment.
Among the numerous deficiencies raised in the Motion for Preliminary Injunction and accompanying Memorandum, Plaintiff has offered evidence that the "site of insertion of the intravenous catheter is not under direct vision" and "the intravenous line connecting the syringe and drug source to the prisoner is longer than what would be used in clinical medicine." (Boysen Aff. ~ 5.)4 Defendants have argued that, "[while] this is generally a true statement," in some instances the use of longer intravenous lines would be appropriate in a clinical setting, as when general anesthetic is administered to patients undergoing MRI testing. (Dershwitz Aff. ~ 30.)
4 The affidavit of Dr. Philip G. Boysen is attached as Exhibit G to Plaintiffs Memorandum in Support of Motion for Preliminary Injunction.
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However, Dr. Heath explains that Dr. Dershwitz's invocation of the MRI environment IS "misleading and inapplicable" for two reasons:
First, the situation of the MRI is an exigent circumstance in which the strength of the magnet often requires the anesthesiologist to monitor the patient from an adjacent room. However, one would never gratuitously provide anesthesia from a removed location; the steps required by the MRI are only taken because there is no alternative. Second, as Dr. Dershwitz is aware, one virtually never induces anesthesia from the observation room in an MRI suite. Instead, anesthesiologists induce anesthesia while standing directly next to the patient using a short IV line, and only withdraw to the observation area once the desired level of anesthetic depth is demonstrably obtained. (Second Heath Aff. ~ 15.) Similarly, Ms. Maree has explained that, "[w]hen anesthesia is induced in a conscious MRI patient, it is standard medical practice for the anesthesia provider to induce anesthesia at the patient's side prior to beginning the MRI." (Second Maree Aff. ~ 4.) Defendants' failure to ensure proper administration of anesthesia in accordance with medically accepted standards of practice is particularly alarming given their insistence on including potassium chloride in their lethal injection protocol to effectuate death by "interrupt[ing] nerve impulses to the heart causing the heart to stop beating." (Polk Aff. ~ 6(a)(v).) There is no statutory requirement that potassium chloride be administered, N.C. Gen. Stat. §§ 15-187, 15-188, and the stated objective behind the addition of this chemical is "to make the execution by lethal injection more humane for the condemned death row inmate." (State's Emergency Petition for Writs of Certiorari and Prohibition and Motion to Vacate Stay of Execution, State v. Hunt, No. 5A86-10, at 7.Y Defendants do not dispute that administration of potassium chloride in the absence of adequate anesthesia would be horrifically painful, as this
5 A copy of the State's Petition in State v. Hunt, No. 5A86-10, is attached as Exhibit B to Plaintiffs Memorandum in Support of Motion for Preliminary Injunction.
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chemical activates sensory nerve fibers in the veins that are highly sensitive to potassium ions.

(Heath Aff. ~ 15.)

Plaintiff has offered the expert opinion of Dr. Heath that "Defendants' selection of

potassium chloride to cause cardiac arrest needlessly increases the risk that an inmate will

experience excruciating pain prior to execution. There exist, however, alternative chemicals

that do not activate the nerves in the vessel walls of the veins in the way that potassium

chloride does." (Id.) In response, Dr. Dershwitz has argued that "no available medication

will stop electrical activity in the heart as rapidly as does potassium chloride." (Dershwitz

Aff. ~ 20.) This statement suggests that Defendants believe it is appropriate to sacrifice

humaneness for speed in developing an anesthesia protocol. However, the Eighth Amendment

prohibits the unnecessary infliction of pain and does not permit Defendants to disregard a

conscious risk of suffering in order that the execution may proceed more quickly. See Gregg v.

Georgia, 428 U.S. 153, 173 (1976). Furthermore, according to Dr. Heath, "there are multiple

medications and substances that, when successfully administered in sufficient dose, will stop the

heart extremely rapidly. Even if it were true that these medications would take longer to stop

electrical activity than potassium chloride, the difference would not be material." (Second Heath

Aff. ~ 10.)
c.

Defendants Fail to Make Adequate Efforts to Identify and Address Foreseeable Problems During Execution.

Notwithstanding Dr. Dershwitz's contention that anesthesia may be blindly administered

and assumed to be effective, Defendants' Memorandum includes a discussion of "steps taken to

reduce the possibility of mishap during the execution." (Defs.' Resp. at 16.) However, the only

specific action mentioned by Defendants is the stationing of an officer in the witness room to

observe the inmate. (Polk Aff. ~ 18.) According to the Warden, this officer observes the inmate

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from the other side of the viewing window during the execution, "paying particular attention to the sheet covering the condemned prisoner's body and noting the development, if any, of any areas of discoloration or wetness" that would indicate displacement or leaking of the intravenous line. (Id.)
According to Plaintiff s experts, watching for wetness on the sheet is not a medically acceptable way to determine whether there has been a failure of the intravenous lines that so as to prevent the full dosage of sodium pentothal not reaching the inmate's body. Based on her inspection of the witness room outside the death chamber, Ms. Maree states that "it is not clear that the senior correctional officer would have a full view of the prisoner's left arm. In any event Warden Polk admits that the senior correctional officer cannot see the IV sites on the prisoner because a sheet covers them." (Second Maree Aff. ~ 6.) Defendants' attempt to identify problems in drug administration by observing the sheet is also misguided and inappropriate because infiltration of solution would not necessarily produce any visible change in the appearance of the sheet. According to Ms. Maree:
Infiltration of solution into tissue is not a dramatic eruption. In my experience, infiltrated IVs rarely leak out of the skin. More often, all that is present with infiltration is swelling of the tissue. Even if the IV did leak above the skin, the IV solution may run down toward the gurney and may not make the sheet covering the prisoner wet. (Second Maree Aff. ~ 6.) Furthermore, there IS no indication that the person charged with monitoring the intravenous lines has any medical training or expertise of any kind. Rather, Warden Polk describes this person as "a senior correctional officer." Dr. Heath has previously explained that "[a]ccepted medical practice ... would dictate that trained personnel monitor the IV lines and the flow of anesthesia into the veins through visual and tactile observation and
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examination." (Heath Aff. ,-r 38 (emphasis added).) Only an anesthesiologist or CRNA possesses the advanced training skills, experience, and credentials to perform this or any other aspect of the provision of anesthesia. (Id.,-r,-r 32-35.)
Dr. Dershwitz opines in his Affidavit that any problems in administration of sodium pentothal would be readily apparent because the inmate would be expected to cry out and complain about the pain being experienced. (Dershwitz Aff. ,-r,-r 27, 40.) This opinion is directly contradicted by Plaintiff's evidence. According to Dr. Heath, "Dr. Dershwitz neglects the accepted reality that the administration of pancuronium bromide greatly hinders the assessment of anesthetic depth and confers a risk factor for intraoperative awareness." (Second Heath Aff. ,-r 12.) Dr. Dershwitz's opinion that an inmate who is capable of speaking out can be expected to do so if not properly anesthetized "neglects the real possibility that [the inmate] will be unable to do so if weakened by pancuronium bromide." (Second Heath Aff. ,-r 13.)
Disregarding the fact that pancuronium bromide would mask all physical indications of the excruciating pain being experienced by a conscious inmate, Dr. Dershwitz attempts to justify the use of this chemical because it serves to "prevent or decrease the intensity of ... involuntary muscle movements" because such movements "could be misperceived by lay witnesses." (Dershwitz Aff. ,-r 22). Dr. Dershwitz's argument creates a situation in which concerns regarding the appearance of the execution are elevated over the humaneness of the protocol. (Second Heath Aff. ,-r 13.) This position is directly at odds with the position of the Ethics Committee of the American Society of Critical Care Physicians regarding the use of paralytic agents to prevent witnesses from seeing movement at the time of death. (Id.)
By placing an officer at the window to observe the intravenous lines, Defendants acknowledge that it is foreseeable that problems may arise during the administration of
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anesthesia. However, they have offered no evidence to indicate how a problem, even assuming it is identified, would be addressed under Defendants' protocol. Warden Polk states that the officer would be able to communicate any problems by means of a direct telephone. (Polk Aff. ~ 18.) Even if such communication could take place within sufficient time to prevent the experience of excruciating pain by the inmate, there is no evidence that any individual with the requisite training and expertise in anesthesiology is located within the execution facility and in a position to respond in to immediately respond to an emergency. In sum, "[t]he senior correctional officer's observation of the sheet covering the prisoner is not in keeping with the standard of care for intravenously inducing anesthesia." (Second Maree Aff. ~ 6.)
D. Defendants' Observations Regarding Prior Executions and Protocols Utilized in Other States Do Not Diminish the Likelihood that Plaintiff Will Needless Suffer Excruciating Pain Under Defendants' Intended Protocol.
Warden Polk insists that, in the twenty-nine executions in which he has been involved, he has never observed or been informed that an inmate has cried out, complained, or otherwise indicated that he was suffering pain during the course of his execution. (Polk Aff. ~ 17; see also Dershwitz Aff. ~~ 27, 28.) This is not at all surprising in light of the fact that Defendants' protocol calls for the injection of 40 mg of pancuronium bromide, a paralytic agent. Plaintiffs have specifically alleged and presented expert evidence demonstrating that the administration of pancuronium bromide would mask any signs of physical suffering being experienced by the inmate. (Boysen Aff. ~ 9; Heath Aff. ~ 21.) Indeed, it appears that the sole purpose for administrating this drug is to ensure that the execution appears peaceful and serene to observers. (See Heath Aff. ~ 12 ("Pancuronium bromide is not an anesthetic or sedative drug, and it does not affect consciousness."); see also Boysen Aff. ~ 9 ("There is no medical reason to infuse this drug").)
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Dr. Heath has specifically explained that the fact that an inmate does not cry out or otherwise demonstrate physical signs of pain cannot be relied upon by observers as evidence of a peaceful and painless execution.
[I]n a recent article the Robeson County, North Caro lina, prosecutor was quoted noting that there was nothing to indicate any pain, specifically no grimacing, jerking or convulsing, during the execution of Henry Lee Hunt in 2003. However, this prosecutor would have observed very similar if not identical circumstances if Mr. Hunt had been administered only pancuronium bromide and potassium chloride without any sodium pentothal and had consciously suffered the agony of suffocation and the excruciating pain that follows injection of potassium chloride. (Heath Aff. ~ 21 (citing Paul Woolverton, Execution Objections on Rise, Fayetteville Observer, Feb. 26, 2006, available at http://www.fayettevillenc.com/article?id=227272).) The Warden also maintains that he "is aware of no credible evidence that would cause [him] to believe that execution by lethal injection, as done in North Carolina, would cause the condemned prisoner to suffer pain during the execution." (Polk Aff. ~ 22.) This statement completely ignores the affidavits submitted by Plaintiff describing horrifying displays of suffering during past executions. These affidavits, submitted by officers of the court who observed the executions of their clients, include reports of inmates "convulsing," "twitching and moving about," "relentlessly convuls[ing] and contort[ing]," and "gagg[ing] and chok[ing]." (Adcock Aff. ~~ 10, 14, 19; Wells Aff. ~ 11; Stevens Aff. ~ 5.)6 Although it is possible that the Warden has a different interpretation of the events described by these attorneys, these affidavits plainly constitute some "credible information" to suggest that inmates have suffered pain during their executions. Dr. Dershwitz has opined that any "writhing and convulsing" observed during prior executions can be explained away as
6 The affidavits of Cynthia F. Adcock, Heather Wells, and Kim Stevens are attached as Exhibits J, K, and L, respectively, to Plaintiffs Memorandum in Support of Motion for Preliminary Injunction.
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Case 5:06-ct-03018-H Document 28 Filed 04/03/2006 Page 21 of 35
"involuntary muscle contractions." (Dershwitz Aff. , 27.) However, according to Dr. Heath, "another very possible interpretation is that the prisoners were in distress or agony." (Second Heath Aff. , 13); see also Morales v. Hickman, 2006 WL 335427, at *6 (N.D. Cal. Feb. 14, 2006f (evaluating a similar explanation offered by Dr. Dershwitz and concluding that "[w]hile Dr. Dershwitz's explanation may be correct, evidence from eyewitnesses tending to show that many inmates continue to breathe long after they should have ceased to do so cannot simply be disregarded on its face."). At the very least, the affidavits offered by Plaintiff demonstrate that, contrary to what has been suggested in Warden Polk's Affidavit, the twenty-nine executions he has observed have not all been peaceful and serene events in which the condemned prisoner has quickly and quietly fallen asleep. (Polk Aff. " 9, 22.)
Warden Polk and Dr. Dershwitz also base their conclusions regarding the effectiveness of Defendants' anesthesia protocol on the fact that the North Carolina execution protocol is "similar" to that used in approximately thirty-six other states, the federal government, and the United States Armed Forces. (Polk Aff. "6, 22; Dershwitz" 5, 17.) While it may be the case that all of these jurisdictions use a combination of the same three chemicals (sodium pentothal, pancuronium bromide, and potassium chloride), Defendants have offered no information regarding the procedures for inducing, maintaining, and monitoring anesthesia to support their companson. The gravamen of Plaintiffs Amended Complaint is that the protocols and procedures used by Defendants, including the qualifications of the personnel responsible for administering anesthesia, the criteria relied upon to assess the inmate's level of consciousness, and the ability of personnel to directly monitor the inmate, create an unacceptable risk that Plaintiff will needlessly suffer excruciating pain during his execution. The properties of the
7 Pursuant to Local Civil Rule 7.2(d), a copy of this decision was attached as Exhibit D to Plaintiffs Memorandum in Support of Motion for Preliminary Injunction.
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specific chemicals used by Defendants to effectuate death are relevant only insofar as they create an increased risk of conscious suffering necessitating a heightened degree of care in inducing and monitoring anesthesia. (Heath Aff. ~ 35; Concannon Aff. ~ 12.)
The Warden testified during his deposition that he does not know the procedures used by United States Government to carry out executions by lethal injection:
Q: Do you know how the United States government provides with lethal injection execution?
A: I understand that their protocol for the drugs is the one that we currently modified to. Now, how exactly they administer that, no, I don't.
(Polk Dep. at 38.) There is no information in Defendants' affidavits, depositions, or memoranda before this Court to suggest that North Carolina's protocol bears any similarity to that in other jurisdictions beyond the use of the tri-chemical combination. If fact, records indicate that protocols for administration and monitoring may vary dramatically. For example, in Tennessee, a camera is mounted immediately over the gurney allowed the executioner to "zoom in" and see catheters during the execution process. Abdur'Rahman v. Bredesen, 181 S.W.3d 292,301 (Tenn. 2005). In California, all personnel are located outside the execution chamber and remotely inject the sequence of chemicals. Morales v. Hickman, No. 5:06-CV-00219-JF, (N.D. Cal. Feb. 21, 2006) (explaining that, according to defendants "having a person in the execution chamber is contrary to departmental policy"). Obviously, each of these arrangements would necessitate equipment and protocols different from those currently used by Defendants.
Moreover, in California, detailed logs are maintained during each execution documenting, inter alia, the time of administration of each chemical, the time the inmate ceases breathing, and the time of death. See Morales v. Hickman, 2006 WL 335427, at *5-6 (N.D. Cal. Feb. 14, 2006) (summarizing data contained in execution logs from recent executions). Warden
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Polk has previously testified at deposition that no such records are kept for executions in North Carolina:
Q: Now, going back to we've asked you about records and logs that are kept of executions, and I want to revisit that for just a minute. Do I understand you to say that so far as you know, no records are kept of what happens during an execution?
A: What happens during an execution, no. Q: No records? A: No. (Polk Dep. at 114.) Defendants' failure to comply with accepted medical practices by maintaining records regarding the administration of anesthesia or other phases of the execution is not the common practice in all jurisdictions. Because Defendants have offered no information regarding procedures used in other states so as to permit comparison by this Court, their claims of uniformity are not supported by record and do not rebut Plaintiffs evidence regarding the unacceptable likelihood of conscious suffering posed by Defendants' anesthesia protocol. E. Defendants' Protocol Would Not Be Acceptable for Euthanizing Household Animals. Unlike physicians, veterinarians have had the opportunity to develop a significant body of knowledge and expertise regarding humane methods of performing euthanasia. Veterinary guidelines demonstrate the existence of significant dangers inherent in Defendants' protocol. The American Veterinary Medical Association (AVMA) has previously indicated that the use of pancuronium is not acceptable for use in veterinary euthanasia. See 2000 Report of AVMA Panel on Euthanasia, available at http://www.avma.org/resources/ euthanasia.pdf. According to Plaintiff s veterinary expert, Dr. Concannon, "using thiopental sodium in combination with pancuronium bromide increases concerns that a veterinary patient
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Case 5:06-ct-03018-H Document 28 Filed 04/03/2006 Page 24 of 35
could awaken during the euthanasia process but be unable to display the physical symptoms relied upon by trained veterinary personnel to identify the need for further anesthesia." (Concannon Aff. ~ 15.)
In their Response, Defendants make much of the fact that an introductory statement has been added to the AVMA guidelines and, remarkably, suggest that Dr. Concannon's opinions should be disregarded because of this statement. (Defs.' Mem. at 26-27 n.6.) However, the addition of this introductory statement does not alter Dr. Concannon's opinions regarding the appropriateness neuromuscular agents, such as pancuronium bromide, in euthanasia protocols. (Second Concannon Aff. ~ 4.) Specifically, the AVMA Report "does not list any neuromuscular blocking agent used any drug protocol deemed acceptable or conditionally acceptable" and Dr. Concannon is "unaware of any veterinarian or veterinary group that advocates the use of neuromuscular blocking agents during the euthanasia procedure." (Id. at 5.)
The AVMA disclaimer statement does not in any way amend or clarify the Report's cautions regarding the need for adequate anesthesia prior to administration of potassium chloride. According to the Report, "[i]t is of utmost importance that personnel performing this technique are trained and knowledgeable in anesthetic techniques, and are competent for assessing anesthetic depth appropriate for administration of potassium chloride intravenously." AVMA Panel Report, available at http://www.avma.org/resources/euthanasia.pdf; (see also Second Concannon Aff. ~ 7.) Dr. Dershwitz's suggestion that the anesthesia need not be administered or monitored by medical professionals credentialed, licensed, and proficient in the practice of anesthesia (Dershwitz Aff. ~~ 19, 29) is completely contrary to standards of veterinary practice. As Dr. Heath explains:
Dr. Dershwitz' s statements directly contradict basic veterinary practice, which requires that when intravenous potassium is used to
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Case 5:06-ct-03018-H Document 28 Filed 04/03/2006 Page 25 of 35
euthanize animals the practitioner be experienced in the assessment of anesthetic depth and take steps to ensure that a surgical plane of anesthesia is established prior to the administration of potassium chloride. Indeed, animal research policies in Dr. Dershwitz's own institution fo llow the AVMA guidelines for euthanasia. In essence, Dr. Dershwitz is opining here that prisoners in North Carolina should not receive the same protections afforded to experimental animals in Massachusetts. (Second Heath Aff. ~ 8.) Most importantly, the new introductory statement to the AVMA has no bearing whatsoever on Dr. Concannon's opinion that humane euthanasia requires the participation of appropriately qualified and experienced personnel who are able to engage in direct monitoring of the patient. (Second Concannon Aff. ~~ 7-10.) Dr. Concannon continues to believe "to a reasonable degree of medical certainty that the execution protocol currently used in North Carolina would not be an acceptable method for euthanasia of animals." (Id. at 12.) II. BASED ON THE EVIDENCE BEFORE THE COURT, PLAINTIFF HAS PRESENTED A MERITORIOUS CLAIM FOR DELIBERATE INDIFFERENCE TO A SERIOUS MEDICAL NEED. Plaintiff has presented evidence from which a trier of fact could reasonably find that Defendants intend to employ an inadequate anesthesia protocol that will subject Plaintiff to an objectively serious risk of suffering excruciating pain, and that they are acting with deliberate indifference to the inadequacies of the anesthesia protocol and resulting risk of harm to Plaintiff. Because Plaintiff has raised serious questions going to the merits of both the objective and subjective prongs of the deliberate indifference analysis, entry of preliminary injunctive relief is appropriate in this case.
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Case 5:06-ct-03018-H Document 28 Filed 04/03/2006 Page 26 of 35
A. The Evidence Establishes that Defendants' Protocol Fails to Ensure that Anesthesia be Properly Administered, Creating an Objectively Serious Risk of Suffering.
All of the evidence outlined in Plaintiffs memoranda and affidavits demonstrates the existence of critical deficiencies in Defendants' anesthesia protocol such that this protocol cannot be relied upon to induce and maintain an adequate plane of anesthesia, thereby rendering execution under this protocol unconstitutionally cruel. In particular, Plaintiff has offered evidence, wholly unrebutted, tending to show that the nature of the chemicals used by Defendants to effectuate death creates a heightened need for proper anesthesia. Plaintiff has further shown that Defendants' anesthesia protocol is insufficient to meet this need because: (1) Defendants have failed to require personnel credentialed, licensed, and proficient in the practice of anesthesia to ensure proper administration and to monitor depth of anesthesia; (2) their protocol includes no criteria or, at best, inappropriate criteria for monitoring consciousness; (3) their protocol involves unnecessary barriers to direct monitoring of anesthesia; and (4) Defendants fail to appropriately account for foreseeable issues that may arise during the course of the execution.
In their Memorandum, Defendants submit.that, notwithstanding the evidence summarized above, Plaintiff cannot establish the objective component of his Eighth Amendment claim because lethal injection is the predominant method of execution in the United States. (Defs.' Mem. at 37-40.) This argument fails to appreciate that understanding and application of the Eighth Amendment must be informed by "evolving standards of decency that mark the progress of a maturing society." Trap v. Dulles, 356 U.S. 86, 101 (1958); see also Stanford v. Kentucky, 492 U.S. 361, 369 (1975) (explaining that the Supreme Court has interpreted the Eighth Amendment "in a flexible and dynamic manner.").
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Significantly, the Defendants cite two cases in support of the proposition that lethal injection is generally agreed to be a humane and acceptable method of execution. (Defs.' Mem. at 39.) These cases, Hill v. Lockhart, 791 F. Supp. 1388 (E.D. Ark. 1992), and People v. Stewart, 520 N.E.2d 348 (Ill. 1988), were decided fourteen and eighteen years prior to the filing of Plaintiff s Amended Complaint. During this time, a compelling body of medical, scientific, and legal evidence has been developed that raises serious questions about the humaneness of lethal injection as it is currently performed in the absence of appropriately trained and qualified personnel and without adherence to medically accepted standards of care. See, e.g., Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005) (finding accounts of recent California executions to be "extremely troubling" because they indicate "that there were problems associated with the administration of the chemicals that may have resulted in the prisoners being conscious during portions of the executions"); Atul Gawande, When Law and Ethics Collide - Why Physician Participate in Executions, 354 New Eng. J. Med.1221, 1228-29 (Mar. 23, 2006), available at http://content.nejm.org/cgi/reprint/354/1211221.pdf ("There can be little doubt that lethal injection can be painless and peaceful, but as courts have recognized, this requires significant medical assistance and judgment - for placement of intravenous catheters, monitoring of consciousness, and adjustments in medication timing and dosage.").
These developments make clear that Defendants' anesthesia protocol cannot be deemed constitutional simply because lethal injection has been widely adopted or in use for a number of years. Indeed, North Carolina used electrocution as the means of execution from 1910 to 1938. North Carolina Department of Correction "History of Capital Punishment," available at http://www.doc.state.nc.us/dop/deathpenalty/DPhistory.htm. The State then switched to lethal gas for a period of nearly sixty years before adopting lethal injection as the sole method of
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execution in 1998. Id.; see also N.C. Gen. Stat. §§ 15-187, 15-188. Thus, despite prior general acceptance of both electrocution and lethal gas, each of these methods was ultimately determined to be inhumane, as reflected by legislative trends in North Carolina and elsewhere.
Based on the evidence currently available to Defendants and to the Court, serious questions have been raised regarding the objectively serious risk of harm to Plaintiff posed by Defendants current inadequate anesthesia protocol. Defendants' reliance upon the prior general acceptance of lethal injection as a humane method of execution cannot defeat the showing made by Plaintiff regarding unacceptable and unnecessary risk that he will not be properly anesthetized and will consciously suffer excruciating pain during the course of his execution.
B. The Evidence Establishes That Defendants Are Acting With Deliberate Indifference to the Inadequacies of the Anesthesia Protocol and the Resulting Risk that Plaintiff Will Suffer Excruciating Pain.
With respect to the subjective prong of the deliberate indifference, Plaintiff has also demonstrated a sufficient likelihood of success on the merits to justify entry of a preliminary injunction. Specifically, the record includes evidence from which a trier of fact could conclude that Defendants have disregarded obvious deficiencies in their anesthesia protocol and the resulting, foreseeable risk that Plaintiff will remain conscious and suffer excruciating pain before his death.
The fact that Defendants' protocol calls for the administration of sodium pentothal for the stated purpose of "quickly put[ting] the inmate to sleep," (Polk Aff. ,-r 6(a)(ii)), shows that Defendants recognize that anesthesia is a necessary element of a humane execution protocol. Despite this awareness, Defendants have failed to adopt an anesthesia protocol that ensures that anesthesia will be properly administered, deviating significantly from accepted medical practices for inducing, maintaining, and monitoring anesthesia. Similarly, the testimony of Warden Polk makes clear that Defendants understand the need to monitor anesthesia in order to determine
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whether an inmate is fully anesthetized prior to the administration of pancuronium bromide, which masks indicia of consciousness, or potassium chloride, which is excruciatingly painful upon injection. The Warden has stated that he relies on the fact that an inmate either begins to snore or ceases snoring following administration of sodium pentothal to indicate that an appropriate plane of anesthesia has been achieved. (Polk Dep. at 38-41; Polk Aff. , 9.) Again, despite this recognition of the need for monitoring to ensure unconsciousness, Defendants have failed to establish appropriate criteria by which to assess consciousness, employ appropriately credentialed, licensed and proficient personnel, or to address significant barriers to direct monitoring of the inmate created by the current protocol.
In addition, Defendants have failed to conduct any independent investigation in the appropriate medical standards of practice for administering and monitoring anesthesia. In an effort to justify this failure, Defendants maintain that they are not required to accept the opinions offered by Plaintiff's experts instead of those of Dr. Dershwitz. (Defs.' Mem. at 40.) However, before deciding that they will adhere only to the opinions offered by Dr. Dershwitz, Defendants
J
should be expected to ensure that the opinions of Dr. Dershwitz are consistent with accepted medical standards. There is no evidence that Defendants have ever undertaken to investigate Plaintiff's concerns that existing anesthesia protocols fail to ensure that the inmate receives the full dosage of sodium pentothal and is properly anesthetized prior to administration of pancuronium bromide and potassium chloride. In contrast, the warden in Tennessee convened a committee to develop that state's protocol, gathered information from a number of other states, and met with officials from the United States Bureau of Prisons and prisons in Texas and Indiana. Abu-Ali Abdur'Rahman v. Bredesen, 181 S.W.3d 292,300 (Tenn. 2005).
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Defendants also consciously disregard the objective risk of harm to Plaintiff by relying on the supposed uniformity of their lethal injection protocol with the protocols used by other states, the federal government, and the United States Armed Forces. (Polk Aff. ~~ 6, 22; Dershwitz ~~ 5, 17.) Such reliance is misplaced because Defendants have not demonstrated any familiarity with the specific procedures used to administer and monitor anesthesia in other jurisdictions. Moreover, Defendants have failed to adopt safeguards enacted in other jurisdictions to address foreseeable problems, such as those raised in Plaintiff s Amended Complaint. See, e.g., Conn. Gen. Stat. § 54-100; Idaho Code § 19-2716; Kan. Crim. Pro. Code Ann. § 22-4001.
Perhaps most tellingly, the fact that the Warden insists that he has seen "no credible information that would cause [him] to believe that execution by lethal injection, as done in North Carolina, would cause a condemned prisoner to suffer pain during the execution" implies precisely the type of willful ignorance that gives rise to a finding of deliberate indifference. In the face of attorney affidavits, expert medical opinion, standards of practice for veterinary euthanasia, recent rulings in other jurisdictions, and grievances filed by a number of North Carolina inmates, Defendants plainly have before them credible evidence that should prompt them to investigate and ensure that their protocol for the administration of anesthesia can be depended upon to reliably induce an adequate plane of anesthesia such that the inmate will be executed with a minimum of pain and suffering. Defendants cannot simply choose to ignore this evidence when it presents a significant risk of harm to Plaintiff. Odom v. South Carolina Dept. a/Carr., 349 F.3d 765,771 (4th Cir. 2003); LaFaut v. Smith, 834 F.2d 389,394 (4th Cir. 1987).
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Case 5:06-ct-03018-H Document 28 Filed 04/03/2006 Page 31 of 35
III. DEFENDANTS' RELIANCE ON DECISIONS FROM OTHER JURISDICTIONS IS MISPLACED AND DOES NOT DEFEAT PLAINTIFF'S SHOWING OF LIKELIHOOD OF SUCCESS ON THE MERITS. Plaintiff has developed and offered to this Court a substantial evidentiary record,
particularly given the pre-discovery stage of this litigation, which includes expert opinion, deposition testimony, licensing records, toxicology data, and other materials, in support of his Motion for Preliminary Injunction. In responding to Plaintiff's showing of likelihood of success on the merits of his constitutional claim, Defendants rely heavily on decisions in other jurisdictions, which they claim demonstrate "virtual unanimity in rejecting challenges to the chemical combination." (Defs.' Mem. at 24.)
As an initial matter, a review of Plaintiff's Amended Complaint reveals that it is not a challenge to the composition of the chemical cocktail used by Defendants' to effectuate death. Rather, Plaintiff has alleged and offered evidence that Defendants' procedures and protocols do not require the participation of personnel credentialed, licensed, and proficient in the practice of anesthesia or adherence to medically appropriate standards for inducing and maintaining anesthesia, thereby creating an unacceptable risk that Plaintiff will consciously suffer during his execution. Thus, while Defendants spend many pages discussing the case of Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004), this case is entirely inapposite because the Court limited the scope of discovery and the introduction of evidence "only to those issues pertaining to the particular chemical combination to be used in this case and their probable affect (sic) on Reid." Id. at 548.
Upon review of the plethora of cases cited by Defendants, Plaintiff has found no case in which a court considered a fully developed challenge addressing whether an anesthesia protocol was adequately designed to ensure that an appropriate plane of anesthesia is induced and maintained. Other cases were in a different procedural posture, where the court was not
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revIewIng a full evidentiary record; involved challenges solely to the use of the chemical
cocktail; involved factually distinct procedures and protocols; or challenged the constitutionality
of lethal injection itself as a means of execution. 8
Finally, Defendants suggest that the only opinions granting relief have been "district
court decisions overturned on appeal and an occasional dissent or concurrence in the appellate
courts." (Defs.' Mem. at 24 n.4.) This statement ignores the recent decision in Morales v.
Hickman, 2006 WL 335427 (N.D. Cal. Feb. 14, 2006), in which the court determined that a
California inmate presented sufficient evidence regarding the risk of conscious suffering during
his execution to warrant modification of the state's lethal injection protocol before allowing the
scheduled execution to go forward. While Morales invo lved a challenge to the particular
See, e.g., Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 301 (Tenn. 2005) (rejecting the plaintiffs claim after reviewing evidence that the executioner could see the inmate through an adjacent window; that a camera immediately over the gurney allowed the executioner to "zoom in" and see the catheters; and that the execution team practiced monthly); State v. Webb, 750 A.2d 448,456 (Conn. 2000) (rejecting the plaintiff s claim after determining that "[t]he person selected as the executioner shall be trained to the satisfaction of a licensed physician to ensure that he/she is qualified to establish the intravenous line and administer the drugs in a professional manner" and "receiving testimony from a physician that executioners could be adequately trained"); Hill v. Lockhart, 791 F. Supp. 1388 (B.D. Ark. 1992) (court did not review evidence relating to composition of chemical cocktail and heightened need for reliable induction of anesthesia); Illinois v. Stewart, 520 N.E.2d 348, 358 (Ill. 1988) (defendant submitted no evidence to support his contention that lethal injection results in protracted death or unnecessary pain); Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005) (defendant denied eve-of-execution injunctive relief where record failed to reflect any evidence that administration of sodium pentothal would be improper); Poland v. Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997) (habeas petition including lethal injection challenge properly denied where sole evidence put forward by petitioner was affidavit regarding "botched" executions in states other than Arizona, where defendant was to be executed); LaGrand v. Stewart, 133 F.2d 1253, 1264-65 (9th Cir. 1998) (limited evidence included report from one physician filled with speculation); Hinchey v. Arizona, 890 P.2d 602, 610 (Ariz. 1995) (broad challenge to lethal injection as method of execution raised on direct appeal; no apparent evidence proffered to trial court in support of challenge); Dawson v. Delaware, 673 A.2d 1186, 1196 (Del. 1996) (merits of claim not addressed because Defendant failed to address claim on direct appeal and court held it to be defaulted); United States v. Chandler, 450 F. Supp. 1545 (N.D. Ala. 1996) (failure to show that DOJ regulations prescribe unconstitutionally cruel method of injection; no discussion that any evidence proffered in support of that contention); Russell v. State, 849 So.2d 95 (Miss. 2003) (defendant cited no authority and presented no evidence in support of challenge to method of execution); State v. Moen, 786 P.2d 111, 143 (Ore. 1990) (court declined to find that lethal injection is, on its face, unconstitutional; no narrower challenge to protocol or evidence adduced in support); Hopkinson v. State, 798 P.2d 1186 (Wyo. 1990) (facial challenge to constitutionality of death by lethal injection rejected, no development of evidence of flawed protocol).
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procedures and protocols used in California, the court's analysis involved a weighing of
considerations similar to that presented in the instant case. Specifically, the court emphasized
the importance of the state's "strong interest in proceeding with its judgment" and that ''under
the doctrines of comity and separation of powers, the particulars of California's lethal-injection
protocol are and should remain the province of the State's executive branch." Id. at *7.
Nevertheless, the evidence before the court raised sufficiently serious questions regarding the
risk of conscious suffering that the court refused permit plaintiffs execution to proceed using the
intended procedures and personnel. The court concluded that the plaintiff s evidence:
raises at least some doubt as to whether the protocol actually is functioning as intended, and because of the paralytic effect of pancuronium bromide, evidence that an inmate was conscious at some point after that drug was injected would be imperceptible to anyone other than a person with training and experience in anesthesia . . . Other evidence in the present record raises additional concerns as to the manner in which the drugs used in the lethal-injection protocol are administered
Id. at *6.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court grant his Motion
for Preliminary Injunction and enjoin Defendants from using their inadequate protocol for
inducing and maintaining anesthesia during the course of his execution
Respectfully submitted this the 3rd day of April 2006.
/s/1. Donald Cowan, Jr. J. Donald Cowan, Jr. N.C. State Bar No. 0968 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 21927 Greensboro, NC 27420 Telephone: (336) 378-5200 Telecopier: (336) 378-5400 Email: don.cowan@smithmoorelaw.com
33

Case 5:06-ct-03018-H Document 28 Filed 04/03/2006 Page 34 of 35 lsi Laura M. Loyek Laura M. Loyek N.C. State Bar No. 28708 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 27525 Raleigh, NC 27611 Telephone: (919) 755-8700 Te1ecopier: (919) 755-8800 Email: 1aura.1oyek@smithmoore1aw.com
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Case 5:06-ct-03018-H Document 28 Filed 04/03/2006 Page 35 of 35
CERTIFICATE OF SERVICE This is to certify that on this date, I electronically filed the foregoing REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system, which will send notification of such filing to counsel of record, and also served a copy of the same by hand-delivering a copy to the following the address:
Thomas J. Pitman, Special Deputy Attorney General (tpitman@ncdoj.com) James P. Smith, Special Counsel North Carolina Department of Justice 114 West Edenton Street Raleigh, North Carolina 27602 This the 3rd day of April, 2006.
lsi Laura M. Loyek
Laura M. Loyek Attorney for Plaintiff
35

 
 Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 1 of 15
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

WILLIE BROWN, JR., N.C. DOC #0052205, )

Plaintiff,

1

1

v.

1

1

THEODIS BECK, Secretary, North Carolina

)

Department of Corrections, Raleigh, North

)

Carolina, MARVIN L. POLK, Warden, Central )

Prison, Raleigh, North Carolina, and UNKNOWN )

EXECUTIONERS, Individually, and in their

)

Official Capacities,

)

Defendants.

1

ORDER

Before the Court today is the condemned Willie Brown, Jr.'s motion for a preliminary injunction barring Defendants from executing him pursuant to North Carolina's current lethal injection protocol. Brown contends that the protocol fails to ensure that inmates are properly anesthetized prior to execution, causing excruciating pain in violation of the Eighth Amendment's prohibition on the use of "cruel and unusual" punishment, applicable to states through the Fourteenth Amendment. A preliminary injunction is necessary, Plaintiff contends, to allow the parties and this Court time to fully review the protocol and to arrive at a reasoned determination of its constitutionality or lack thereof.
STATEMENT OF THE CASE Willie Brown, Jr. is a state inmate convicted of first-degree murder and sentenced to death. See State v. Brown,3 15 N.C. 40,337 S.E.2d 808 (1985). For more than two decades, Brown has appealed his conviction and death sentence to North Carolina's appellate courts and

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 2 of 15
to every level of the federal court system. None of these appeals has resulted in alteration of his
conviction or sentence.' He is currently scheduled to be executed by lethal injection on April 21,
2006.
Brown no longer challenges his conviction or the validity of his death sentence. Instead,
in this action filed pursuant to 42 U.S.C. $ 1983, Brown challenges North Carolina's lethal
injection protocol and the procedures Defendants intend to employ in effecting his execution on
April 2 1,2006. Specifically, Brown contends that the protocol and procedures Defendants
intend to use are constitutionally deficient in the following ways:
1. Defendants' protocol fails to ensure that the personnel responsible for anesthesia are appropriately trained and qualified;
2. Defendants' protocol lacks adequate standards for administering injections and monitoring consciousness; and
3. Defendants fail to make adequate efforts to identify and address contingencies that may arise during execution.
Counsel for both parties have, in recent weeks, engaged in extensive briefing of this
matter. The arguments made on both sides have been well reasoned and expertly presented. This
Court held a status conference in this matter on March 27,2006. Subsequently, on April 6,2006,
the Court heard arguments from learned counsel for Mr. Brown and Defendants. This matter is
now ripe and must be decided expeditiously, as the date of Mr. Brown's execution is imminent.
'In 2003, the Fourth Circuit Court of Appeals reversed this Court's finding of procedural default as to Plaintiffs habeas claim concerning an instruction requiring juror unanimity as to mitigating circumstances. See Brown v. Lee, 319 F.3d 162 (4th Cir. 2003). On remand, the Court determined that the instruction given was indistinguishable from the one found unconstitutional in McKoy v. North Carolina, 494 U.S. 433 (1990) but that Plaintiff was not entitled to habeas relief because McKoy did not apply retroactively to cases, like Plaintiffs, that became final prior to the McKoy decision. See Brown v. Polk, No. 5:98-HC-774-H (E.D.N.C. Aug. 25,2004) (relying on Beard v. Banks, 542 U.S. 406 (2004)).

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 3 of 15
North Carolina's Execution Protocol The State of North Carolina executes death row inmates by lethal injection. N.C. Gen.
Stat. $5 15-187, -188. Pursuant to the execution protocol adopted by Defendants, lethal injection
is performed by the administration of three chemical substances: (1) sodium thiopental or sodium pentothal, a short-acting barbituate; (2) pancuronium bromide or Pavulon, a neuromuscular blocking agent that causes total muscle paralysis; and (3) potassium chloride, which causes cardiac arrest. Each of these chemicals is injected separately into two intravenous lines leading to the inmate's body. The first set of syringes contains a total of 3000 mg. of sodium pentothal. The second syringes contain saline to flush the IV line clean. The third set of syringes contains a total of 40 mg of pancuronium bromide. The fourth set of syringes contains a total of 160 mEq of potassium chloride. The fifth set of syringes contain saline to again flush the IV line clean.
Plaintiff does not dispute that, if administered properly, 3000 mg of sodium pentothal will render an individual unconscious and unable to perceive pain. Plaintiff, however, claims that the execution protocol is inadequate to ensure that an appropriate plane of anesthesia is induced and maintained prior to execution. The neuromuscular blocking agent paralyzes voluntary muscles but does not affect consciousness or the perception of pain. As a consequence, Plaintiff contends, an individual will appear unconscious while, in fact, he may be "experienc[ing] excruciating pain as a result of the conscious asphyxiation caused by pancuronium bromide and the painful burn and cardiac arrest caused by the injection of potassium chloride." (Am. Compl.
77 11, 12.) Plaintiff further challenges the protocol on the grounds that it fails to require the
presence of medical personnel trained in anesthesia and that it lacks other medically necessary safeguards to ensure that an individual is properly sedated prior to the administration of the

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 4 of 15
pancuronium bromide and potassium chloride or to provide guidance to the executioners in the
event of problems. (Am. Compl. 17 18-20.)
As an alternative to the execution protocol, Plaintiff suggests that Defendants instead use a long-acting barbituate, such as pentobarbital or secobarbitol. According to Plaintiff these substances cause both unconsciousness and death if properly admini~tered.~Plaintiff further suggests that Defendants establish appropriate protocols to monitor the "level of consciousness prior to injection of [the] other chemical[s];" "to require the presence of medical personnel credentialed, licensed, and proficient in the practice of anesthesia;" "to eliminate unnecessary physical barriers to direct visual and tactile monitoring;" and "to make provisions for responding to foreseeable issues that may arise during the execution." (Mem. Supp. Prelim. Inj. at 2 1-22.)
PRELIMINARY INJUNCTION STANDARD In determining whether Brown is entitled to a preliminary injunction, the Court is guided
by the hardship balancing test set forth in Blackwelder Furniture Co. v. Seilig Mfg.Co., 550 F.2d
189 (4th Cir. 1977). This test requires the Court to consider four factors: (1) the likelihood of irreparable harm to the plaintiff if injunctive relief
is denied; (2) the likelihood of harm to the defendants if injunctive relief is granted; (3) the likelihood that the plaintiff will succeed on the merits; and (4) the public interest.
Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353 (4th Cir. 1991) (citing Blackwelder). It "correctly emphasizes that, where serious issues are before the court, it is a sound idea to
*Plaintiff notes that protocols utilizing such long-acting barbituates have been adopted by the American Veterinary Medical Association and by physicians under Oregon's Death with Dignity Act.

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 5 of 15
maintain the status quo ante litem, provided it can be done without imposing too excessive an interim burden upon the defendant." Blackwelder, 550 F.2d at 194-95. Thus, the most important factors are the likelihood of irreparable harm to the plaintiff and the likelihood of harm to the defendants. Rum Creek, 926 F.2d at 359. "If, after balancing those two factors, the balance 'tips decidedly' in favor of the plaintiff, a preliminary injunction will be granted if 'the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation." Id. (citations omitted) (quoting Blackwelder, 550 F.2d at 195).
"The inability to obtain damages from the State in a 5 1983 action reduces the showing
necessary to establish irreparable harm." Id. at 360. Because injunctive and declaratory relief are the only remedies available, "the showing necessary to meet the irreparable harm requirement for a preliminary injunction should be less strict than in other instances where future monetary remedies are available." Id. at 362. Where, however, a stay of execution is sought, the court must also consider whether the inmate has unnecessarily delayed bringing the claim. "Given the State's significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." Nelson v. Campbell, 541 U.S. 637,649-50 (2004) (citations omitted).
DISCUSSION This is not the first time that an individual has challenged a state's execution protocol for the reasons cited by Plaintiff. Since the Supreme Court's decision in Nelson, inmates facing execution have raised similar claims throughout the country, contending they are at significant

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 6 of 15
risk of needlessly and consciously suffering excruciating ~ a i n ?See, e.g., Morales v. Hickman,
415 F. Supp. 2d 1037 (N.D. Cal. 2006); Smith v. Johnson, No. Civ.A. H-06-450,2006 WL
am, 644424 (S.D. Tex. Feb. 13,2006), 440 F.3d 262 (5th Cir. 2006); Evans v. Saar, 412 F.
Supp. 2d 5 19 (D. Md. 2006); Rutherford v. Crosby, No. 4:06-CV-50/MCR, 2006 WL 228883
(N.D. Fla. Jan. 28,2006), asf'd, 438 F.3d 1087 (2006); Anderson v. Evans, No. CIV-05-0825-F,
2006 WL 83093 (W.D. Okla. Jan. 11,2006); Ross v. Rell, 392 F. Supp. 2d 224 (D. Conn. 2005);
Beardslee v. Woodford, No. C 04-5381 JF, 2005 WL 40073 (N.D. Cal. Jan. 7,2005), afd, 395
F.3d 1064 (9th Cir. 2005); Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004); Harris v.
Johnson, 323 F. Supp. 2d 797 (S.D. Tex. 2004), vacated, 376 F.3d 414 (5th Cir. 2004); Oken v.
Sizer, 321 F. Supp. 2d 658 (D. Md. 2004); Cooper v. Rimmer, No. C 04 436 JF, 2004 WL
231325 (N.D. Cal. Feb. 6,2004); Bieghler v. Indiana, 839 N.E.2d 691 (Ind. 2005);
Abdur 'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005). In this Court alone, there have been
six 5 1983 actions challenging North Carolina's execution p r o t ~ c o l .O~f the various federal and
state cases, the Court is aware of only four cases since Nelson in which injunctive relief has been
granted based on challenges to a state's execution protocol. In each of those cases, the stay was
'In fact, the principal experts involved in this case, Dr. Mark J. S. Heath and Dr. Mark Dershwitz, are the same experts relied upon by the parties in a number of these cases. See, e.g., Morales v. Hickman, 4 15 F. Supp. 2d 1037 (N.D. Cal. 2006); Evans v. Saar, 412 F. Supp. 2d 519 (D. Md. 2006); Abdur 'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005) (Heath only) ; Beardslee v. Woodford, No. C 04-5381 JF, 2005 WL 40073 (N.D. Cal. Jan. 7,2005), affd, 395 F.3d 1064 (9th Cir. 2005); Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004).
4Theother five actions filed in this Court are Page v. Beck, No. 5:04-CT-4-BO (formerly designated as Rowsey v. Beck), which was filed by four inmates challenging the execution protocol formerly used by the State of North Carolina; Conner v. Beck, No. 5:06-CT-3032-D; Perkins v. Beck, No. 5:04-CT-643-BO; Boyd v. Beck, No. 5:05-CT-774-D; and Moody v. Beck, No. 5:06-CT-3020-D. Perkins, Boyd and Moody have previously been dismissed. Page and Conner are still pending before the Court.

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 7 of 15
ultimately vacated on appeal. See Bieghler v. Donahue, 2006 WL, 229027 (7th Cir.), vacated, 126 S. Ct. 1190 (2006); Harris v. Johnson, 323 F. Supp. 2d 797 (S.D. Tex.), vacated, 376 F.3d 414 (5th Cir. 2004); Oken v. Sizer, 321 F. Supp. 2d 658 (D. Md.), vacated, 542 U.S. 916 (2004); Perkins v. Beck, No. 5:04-CT-643-BO (Oct. 1,2004), vacated, 543 U.S. 920 (2004). In Moody, this Court recently denied the plaintiffs request for injunctive relief because he had delayed
filing his 5 1983 complaint until thirteen days before his scheduled execution. Based on the
record before it, the Court further concluded that "the relative harm to the parties also weigh[ed] against granting injunctive relief." Moody v. Beck, No. 5:06-CT-3020-D (Mar. 14,2006) at 7.
The Northern District of California recently considered claims similar to those raised by Plaintiff and denied injunctive relief on condition that the State of California would agree to modify its execution protocol to address certain concerns raised by the plaintiff. Acknowledging that "no court has found either lethal injection in general or a specific lethal-injection protocol in particular to be unconstitutional," the court noted that the record before it was much more extensive and included "evidence of a kind that was not presented" in the other cases. Morales, 2006 WL 335427, *5. The Morales Court expressed specific concern with information contained in logs from a number of executions suggesting that inmates may have continued breathing more than a minute after the administration of sodium thiopental. The court noted that this evidence appeared contrary to Dr. Dershwitz's opinion, which had been relied upon in other cases, that the amount of sodium thiopental used would cause an inmate to stop breathing and lose consciousness within a minute after administration began. While acknowledging Dr. Dershwitz's explanation that these "respirations" may have simply been "chest wall movements" and not respirations, the court concluded that the evidence before it raised some doubt whether

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 8 of 15
California's execution protocol was functioning as intended. Based on these concerns, the court determined that preservation of "both the State's interest in proceeding with [Morales'] execution and [Morales'] constitutional right not to be subject to an undue risk of extreme pain" would be best served by denying Morales' motion for injunctive relief provided that the State agreed either to use only barbituates in executing Morales or to have an individual trained and experienced in the field of general anesthesia to ensure that Morales was rendered unconscious prior to the administration of pancuronium bromide or potassium chloride. Morales, 2006 WL 335427, at *8.
While the Court does not fashion its order based solely on Morales, the Court does find the Morales decision persuasive. As in Morales, Plaintiff here has presented evidence of a kind that is different from that presented in the cases previously considered by this and other courts. Among this evidence is toxicology data from four recent North Carolina executions showing post-mortem levels of sodium pentothal ranging from 1.5 mg/L to 42 mg/L? At the very least, this evidence appears contrary to Dr. Dershwitz's opinion that a man of average size injected with 3000 mg of sodium pentothal would have an expected concentration of 40 mg/L ten minutes later and a concentration of 33 mg/L twenty minutes later. In response, Defendants have filed an affidavit of Dr. Dershwitz in which it is stated that the discrepancies between the post-mortem toxicology results and his predictions may be explained by a number of factors, including the following: (i) that his predictions are based on arterial blood concentrations, whereas the post-
5Toxicology results of blood samples taken from the left femoral vessel of Steven Van McHone, who was executed November 11,2005, indicate sodium pentothal levels of 1.5 mg/L and 21 mg/L. Similar tests revealed sodium pentothal levels of 4.4 mg/L, 11 mg/L and 12 mg/L in Elias Syriani, who was executed November 18,2005; 11 mg/L and 29 mg/L in Kenneth Boyd, executed December 2,2005; and 8.7 mg/L, 12 mg/L and 42 mg/L in Perrie Dyon Simpson, following his execution on January 20,2006.

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 9 of 15
mortem samples may not have been arterial blood samples; (ii) that sodium pentothal is subject to postmortem redistribution, causing a decrease in the blood concentration with time lapse; (iii) that due to the administration of the potassium chloride, blood circulation may have stopped prior to equilibration of the sodium pentothal concentrations between the arterial and venous circulatory systems; and (iv) there would be a systematic decrease in the reported concentrations due to delays in obtaining and shipping the samples and improper storage of the samples. While Dr. Dershwitz's explanation may be correct, the Court cannot ignore the serious questions raised by this data. This is especially true considering that the blood samples of which Dr. Dershwitz complains were collected, shipped, stored and analyzed at Defendants' direction by agents of the State for the express purpose of determining whether inmates executed under Defendants' protocol are receiving sufficient anesthesia prior to the administration of the pancuronium bromide and potassium chloride.
Plaintiff also relies on affidavits from attorneys who report having witnessed individuals writhing, convulsing, and gagging when executed. For example, Heather Wells, an attorney for Eddie Ernest Hartman, reports that Eddie appeared to suffer for at least five minutes after the lethal injection. She states that "Eddie's throat began thrusting outward and collapsing inward. His neck pulsed, protruded, and shook repeatedly. Eddie's chest at first pulsated frequently, then
intermittently, and at least twice I saw Eddie's chest heave violently. . . . Throughout the
execution, Eddie's eyes were partly open while his body relentlessly convulsed and contorted."
(Mem. Supp. Prelim. Inj., Ex. K, 17 7-9, 12 (paragraph numbers omitted).) Kim Stevens and
Cynthia Adcock report similar observations during the executions of John Daniels, Willie Fisher, and Timmy Keel. (Mem. Supp. Prelim. Inj., Exs. J, L.) Ms. Adcock states that she witnessed

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 10 of 15
three executions by lethal injection in the State of North Carolina. The first was Zane Hill. Ms. Adcock states that in the hours preceding his death Mr. Hill was heavily medicated and behaved similar to someone who was intoxicated. When he was executed, he appeared unconscious, and he never opened his eyes or grimaced. She states that was not the case, however, with the executions of Willie Fisher and Timmy Keel. According to Ms. Adcock, Mr. Fisher's execution commenced at 9:00 p.m. and concluded at 9:21 p.m. Ms. Adcock states that Mr. Fisher appeared to lose consciousness around 9:00 p.m., but subsequently began convulsing. She states that he looked as though he was trying to catch his breath but could not and that his eyes were open as his chest heaved repeatedly. She further reports watching Timmy Keel's body "twitching and moving about" for approximately ten minutes. Kim Stevens describes a similar scene with the execution of John Daniels:
Mr. Daniels lay still for a moment after the Warden's announcement [that the execution would proceed], and turned his face away from us. Then, all of a sudden he started to convulse, violently. He sat up and gagged. We could hear him through the glass. A short time later, he sat up and gagged and choked again, and struggled with his anns under the sheet. He appeared to me to be in pain. He finally lay back down and was still.
(Mem. Supp. Prelim. Inj., Ex. L, 7 5.) According to Dr. Heath, "[wlitness accounts of writhing
and convulsing during execution are not consistent with a sufficient dose of [sodium pentothal] having been successfully delivered to the brain such that the condemned inmate does not feel
pain." (Mem. Supp. Prelim. Inj., Ex. F, 7 31.) While these particular executions took place prior
to Defendants' adoption of the current execution protocol, the amount of sodium pentothal administered during these executions was the same as under the current protocol (3000 mg), it was simply administered in a different sequence. Thus, evidence of the problems associated with these executions while, perhaps, not clearly indicative of the current protocol, does raise some

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 11 of 15
concerns about the effect of North Carolina's protocol.
As to the balance of hardship, Brown contends:
The excruciating pain that Plaintiff will suffer during his execution clearly constitutes irreparable harm. Moreover, Plaintiff will have no meaningful retrospective remedy, as he will no longer be alive. Indeed, the Fourth Circuit has recognized that, because of the absence [of] retrospective remedies, the showing required for a preliminary injunction is less strict in cases involving an alleged violation of rights under Section 1983. See Rum Creek, 926 F.2d 353,362 (4th Cir. 1991).
Defendants will incur minimal, if any, harm if they are enjoined from conducting Plaintiffs execution using their intended inadequate protocol. Plaintiff seeks only to enjoin Defendants from doing what they have no right or need to do - employing an inadequate protocol for inducing and maintaining anesthesia with blatant disregard for the conscious suffering and excruciating pain Plaintiff will experience as a result. Plaintiff does not seek to prevent Defendants from carrying out his execution, or even from carrying out his execution by lethal injection, a fact that minimizes any risk of harm to Defendants.
There is no obstacle, other than Defendants' own refusal, to the adoption of
[I alternative procedures or other measures that would ensure proper induction and monitoring of anesthesia throughout the course of the lethal injection process. . . .
Finally, Plaintiffs lack of undue delay in bringing this claim further tips the equitable balance in Plaintiffs favor. From the time of his conviction until the denial of his Petition for Writ of Habeas Corpus on 27 February 2006, Plaintiff has continuously pursued state and federal appeals and post-conviction proceedings in an effort to obtain a new trial or sentencing hearing. In fact, in 2003, the Fourth Circuit concluded that Plaintiff was entitled to a new sentencing hearing because of constitutional errors affecting his death sentence. Due to an intervening decision of the United States Supreme Court, his Petition was subsequently dismissed without re-sentencing. Any challenge to Defendants' anesthesia protocol prior to the denial of his federal habeas petition would have been premature, given that a favorable habeas ruling would have mooted a claim under Section 1983 and rendered any ruling on this matter advisory.
After the United States Supreme Court denied certiorari with respect to Plaintiffs habeas petition, eliminating all legal barriers to the State's ability to

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 12 of 15
schedule Plaintiffs execution, Plaintiff moved promptly to assert his claim, filing his Complaint the same day the Supreme Court's order was issued and before an execution date was set.
(Mem. Supp. Prelim. Inj. at 9,20-23 (parenthetical omitted) (citations omitted).)
Defendants, on the other hand, assert that Brown cannot show he will suffer irreparable
harm. According to Defendants:
Plaintiff will not suffer physically because he will be rendered fully unconscious by the administration of thiopental sodium before the injection of pancuronium
bromide and will remain so until he is declared dead. . . .
On the other hand, the State of North Carolina suffers irreparable harm
because of its inability to enforce its criminal judgments. . . . The citizens of
North Carolina have a strong interest in seeing the judgment rendered in Plaintiffs criminal case carried out. More than twenty years have passed since a North Carolina jury found Plaintiff guilty of capital murder beyond a reasonable doubt and further decided the aggravating circumstance of the crimes [sic] outweighed the circumstances mitigating the punishment. The verdicts and judgments have been upheld by the North Carolina Supreme Court and sustained by the federal courts. Although the statute prescribing lethal injection as the sole
form of capital punishment in North Carolina . . . had been in effect since 1988,
Plaintiff did not challenge the State's method of execution until shortly before the time when the State set the date for his execution. Such a deliberate dilatory tactic by a criminal defendant is a ground for denying equitable relief. Such tactics irreparably harm the State and are contrary to the public interest.
(Mem. Opp. Prelim. Inj. at 35-42 (citations omitted).)
On balance, the Court concludes that the likelihood of irreparable harm to Brown far
exceeds the likelihood of harm to Defendants. Serious questions have been raised by the
evidence concerning the effect of the current execution protocol. If the alleged deficiencies do,
in fact, result in inadequate anesthesia prior to execution, there is no dispute that Brown will
suffer excruciating pain as a result of the administration of pancuronium bromide and potassium
chloride. Moreover, if the State of North Carolina is permitted to execute Brown as scheduled,

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 13 of 15
on April 2 1,2006, Brown will be deprived of any opportunity to pursue this action or to seek redress in the event he suffers a torturous death. The Court recognizes the State's significant interest in finality and the enforcement of its criminal judgments. However, the Court determines that it would be inappropriate to allow Defendants to proceed with Mr. Brown's execution under the current protocol considering the substantial questions raised. Although Plaintiff may have been able to file this action prior to the time he did, this case is not like Moody, where the plaintiff waited until fifteen days prior to his scheduled execution before filing his tj 1983 action. In this case, Plaintiff filed his action the same day the Supreme Court denied certiorari in his case and prior to the time his execution was scheduled. Considering the Fourth Circuit's decision remanding the case for consideration of Plaintiffs McKoy claim and the subsequent stay entered by this Court, the Court concludes that Plaintiffs delay in filing is not so great that Plaintiff should be deprived of his only opportunity to pursue the "serious, substantial, difficult and doubtful" questions raised in this action. That said, it has been more than twenty years since Plaintiff was convicted and sentenced to death. As noted by the Morales Court:
Even if the Court were to hold an evidentiary hearing and Plaintiff were to prevail, Plaintiff would remain under a sentence of death. Neither the death penalty nor lethal injection as a means of execution would be abolished. At best, Plaintiff would be entitled to injunctive relief requiring the State to modify its lethalinjection protocol to correct the flaws Plaintiff has alleged. Presumably, at some point, Plaintiff would be executed. Morales, 2006 WL 335427, *7. This Court has the authority and the responsibility to ensure that the State, if it chooses to go forward with executing Brown, does so in a manner that comports with the Eighth Amendment. See Morales v. Hickman, 438 F.3d 926 (9th Cir. 2006). The Court finds that Plaintiff has raised substantial questions as to whether North Carolina's execution protocol

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 14 of 15
creates an undue risk of excessive pain. However, the Court finds, as did the Morales Court, that the questions raised "may be addressed effectively by means other than a stay of execution, and that these alternative means would place a substantially lesser burden on the State's strong interest in proceeding with its judgment." Morales, 2006 WL 335427, *7. Specifically, the Court finds that the questions raised could be resolved by the presence of medical personnel who are qualified to ensure that Plaintiff is unconscious at the time of his execution.
CONCLUSION The Court concludes that Plaintiffs primary concern is ensuring that Plaintiff will not experience pain during the injection of pancuronium bromide and potassium chloride into his bloodstream during his execution. As the reviewer of the constitutional sufficiency of the process employed by Defendants in this matter, this is the Court's main concern as well. Therefore, based on the foregoing discussion, and after considering the blood test summaries and affidavits submitted by counsel who have viewed past executions in North Carolina, the Court concludes this issue must be addressed before Willie Brown's execution may go forward. Accordingly, the Court hereby conditionally DENIES Plaintiffs motion for preliminary injunction, and Plaintiffs execution may proceed as scheduled on April 2 1,2006, on the condition that there are present and accessible to Plaintiff throughout the execution personnel with sufficient medical training to ensure that Plaintiff is in all respects unconscious prior to and at the time of the administration of any pancuronium bromide or potassium chloride. Should Plaintiff exhibit effects of consciousness at any time during the execution, such personnel shall immediately provide appropriate medical care so as to insure Plaintiff is immediately returned to an unconscious state.

Case 5:06-ct-03018-H Document 32 Filed 04/07/2006 Page 15 of 15
On or before April 12,2006, at 12:OO noon, Defendants shall file with this Court and serve upon Plaintiff a notice setting forth the plans and qualifications of such personnel. Plaintiff may file any objections to the plans andlor qualifications of such personnel on or before 5:00 p.m. on April 14,2006. In the event Defendants fail to provide such information or choose not to proceed with Plaintiffs execution in this manner, a preliminary injunction including a stay of execution will issue immediately, without the necessity of further proceedings. A schedule for discovery and future hearings shall be entered forthwith thereafter. In no event shall a stay of execution remain in effect for more than 180 days without an order of this Court finding extraordinary circumstances warranting extension of the stay.
This the 7th day of April 2006.

MALCOLM 5.
SENIOR

DISTRICT JUDGE

 
 Case 5:06-ct-03018-H Document 34-1 Filed 04/14/2006 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:06-CT-3018-H

WILLIE BROWN, JR., N.C. DOC #0052205,
Plaintiff,
v.
THEODIS BECK, Secretary, North Carolina Department of Correction, and MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina, and UNKNOWN EXECUTIONERS, Individually, and in their Official Capacities,

OBJECTION TO DEFENDANTS' NOTICE AND RESPONSE TO 7
APRIL 2006 ORDER

Defendants.

Plaintiff Willie Brown, Jr., N.C. DOC #0052205, (hereinafter "Plaintiff'), through

counsel, hereby submits this objection to the Defendants' Notice and Response to 7 April 2006

Order.

STATEMENT OF THE CASE

This matter is before the Court on Plaintiffs Amended Complaint filed 8 March 2006.

Plaintiff filed this action pursuant to 42 U.S.C. § 1983, challenging the protocol and procedures

Defendants intend to employ to carry out Plaintiffs execution by lethal injection. Following

extensive briefing by the parties, a status conference on 27 March 2006 and a hearing on 6 April

2006, the Court issued an Order on 7 April 2006 conditionally denying Plaintiffs Motion for

Preliminary Injunction.

This Order concluded that Plaintiff had offered evidence raising "serious questions"

concerning the adequacy of Defendants' intended protocol for administering, monitoring, and

Case 5:06-ct-03018-H Document 34-1 Filed 04/14/2006 Page 2 of 22
maintaining anesthesia during the course of Plaintiff's execution by lethal injection. (Order at 12.) The Court further concluded that Plaintiff's execution could:
proceed as scheduled on April 21, 2006, on the condition that there are present and accessible to Plaintiff throughout the execution personnel with sufficient training to ensure that Plaintiff is in all respects unconscious prior to and at the time of the administration of any pancuronium bromide or potassium chloride. Should Plaintiff exhibit effects of consciousness at any time during the execution, such personnel shall immediately provide appropriate medical care so as to insure Plaintiff is immediately returned to an unconscious state. (Id. at 14.) On 12 April2006, Defendants filled with the Court and served upon Plaintiff their Notice and Response to 7 April 2006 Order, indicating that Defendants have now revised their execution protocol to incorporate the use of a bispectral index monitor ("BIS monitor"). In accordance with the deadlines set forth in the Court's 7 April 2006 Order, Plaintiff submits the following objection to the revised protocol proposed by Defendants.
ARGUMENT Plaintiff objects to the revised protocol proposed by Defendants on the grounds that it: (1) fails to comply with the terms of this Court's Order and (2) fails to address the serious questions raised by Plaintiff's evidence and recognized by the Court regarding the effect of Defendants' anesthesia protocol. I. DEFENDANTS' PROPOSED PROTOCOL IS NOT RESPONSIVE TO OR COMPLIANT WITH THE TERMS OF THIS COURT'S ORDER. After careful consideration of the evidence and arguments of the parties, this Court concluded that the questions raised by Plaintiff regarding the Defendants' protocol for inducing, maintaining, and monitoring anesthesia "could be resolved by the presence of medical personnel who are qualified to ensure that Plaintiff is unconscious at the time of his execution." (Order at
2

Case 5:06-ct-03018-H Document 34-1 Filed 04/14/2006 Page 3 of 22
14.) To this end, the Order directed the Defendants to provide for the presence of "personnel with sufficient medical training" and to "file with this Court and serve upon Plaintiff a notice setting forth the plans and qualifications of such personnel." (Id. at 14-15.) The conditions imposed by this Court provided a well-reasoned and medically appropriate means of ensuring that Plaintiffs execution will be conducted humanely and in accordance with the requirement of the Eighth Amendment.
However, in responding to the Court's Order, Defendants have offered no information to establish the sufficiency of the medical training for the available medical personnel, and they have set forth no plans that would pem1it such personnel to "immediately provide appropriate medical care" in the event that Plaintiff exhibits signs of consciousness at any time during the execution. Defendants have elected not to accept the Court's conditions and have instead selected an entirely different means of monitoring anesthesia, the BIS monitor. The addition of this machine also does not respond to or satisfy the directive of this Court. Contrary to the Court's Order, the Defendants' proposed protocol does not require the presence of any additional personnel with sufficient medical training to ensure that Plaintiff is unconscious. The only personnel contemplated by Defendants' new protocol are those who would have participated prior to the Court's 7 April 2006 Order. The only addition to Defendants' protocol intended to address concerns regarding Plaintiffs level of consciousness is a BIS machine, which will be applied by a registered nurse and interpreted by a registered nurse and physician located in an observation room outside the execution chamber. This is plainly insufficient.
Moreover, even if the Court were to find that this monitoring protocol could be sufficient, which is denied, Defendants' Notice and Response still provides no information whatsoever regarding the qualifications of the specific registered nurse and physician who will supposedly
3

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ensure unconsciousness during the course of Plaintiffs execution. The evidence previously offered by Plaintiff in support of his Motion for Preliminary Injunction demonstrates that the administration and monitoring of anesthesia "is complex and risky, and can only be safely performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia services." (First Heath Aff. ~ 32.) Defendants have failed to provide any information to indicate that any of the personnel participating in Plaintiffs execution will be credentialed, licensed, and proficient in the practice .of anesthesiology. Furthermore, though Defendants now propose to rely upon a BIS monitor to assess Plaintiffs level of consciousness, they have failed to state whether the personnel operating the BIS monitor have had any training or prior clinical experience with this device.
Defendants' proposed protocol f:1ils to respond to the Court's directive that sufficiently trained medical personnel "are present and accessible to Plaintiff." According to Defendants, "[a] licensed registered nurse and the licensed physician are positioned in the observation room beside the Cardiac Monitor Defibrillator.... The BIS monitor will be located such that it can be observed and its values read by both medical professionals." (Defs.' Notice at 3.) A nurse and physician located in a separate room cannot be deemed "accessible" to Plaintiff and therefore fail to comply with the conditions set forth in the Order. The fact that the only medical personnel identified in Defendants' Notice and Response are located in a separate observation room also indicates that Defendants have failed to satisfy the Court's condition that trained medical personnel "immediately provide appropriate medical care to Plaintiff' in the event that he exhibits effects of consciousness. (Order at 14 (emphasis added).) Communication between separate rooms will necessarily involve some degree of delay that could be avoided if medical personnel were directly accessible to Plaintiff in the manner contemplated by this Court's Order.

4

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Case 5:06-ct-03018-H Document 34-1 Filed 04/14/2006 Page 5 of 22

Defendants have also failed to identify protocols to be followed in the event that there are problems in the administration of anesthesia requiring communication between personnel in the observation room and personnel within the execution chamber, such as who should initiate the communication and who is responsible for responding. The absence of such protocols unnecessarily impairs the immediacy of response to foreseeable problems during the execution.
The proposed protocol submitted by Defendants further fails to comply with the requirement that "such personnel," refening to personnel with sufficient medical training, shall "provide appropriate medical care so as to insure Plaintiff is immediately returned to an unconscious state." (Id.) Under Defendants' proposed plan, the only personnel who will respond in the event that the BIS reading fails to fall below accepted levels are the "the execution team employed by Defendants," who will "continue to administer sodium pentothal." (Defs.' Notice at 4.) As previously established, the personnel who are responsible for administering the injections of sodium pentothal are they are volunteers selected by the Warden from among his staff, and these individuals have no medilcal training or expertise. (Polk Dep. at 103, Exhibit A to Errata Sheet at 3.) Thus, as now proposed, if anesthesia is improperly administered by the execution team such that the reading on 1the BIS machine fails to fall below an appropriate level, the only response called for under the Defendants' protocol is for the non-medical personnel to continue administering anesthetic, presumably using the same improper techniques and repeating the same errors that lead to the initial failed administration. Accordingly, Defendants' protocol fails to ensure that Plaintiff will be rendered or immediately returned to an unconscious state, as required by the Court's Order.
The Court has directed that Defendants monitor and respond in the event that "Plaintiff exhibits effects of consciousness at any time during the execution." (Order at 14 (emphasis

5

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Case 5:06-ct-03018-H Document 34-1 Filed 04/14/2006 Page 6 of 22
added).) Review of Defendants' proposed protocol indicates that the BIS monitor display will be read by personnel "after the initial dose of 3000 mg of sodium pentothal" and that "the execution team employed by Defendants will not administer any quality of pancuronium bromide to Plaintiff until such time at the BIS monitor reading falls below '60. "' (Defs.' Notice at 4.) As described by Defendants, this protocol includes no provision for further readings of the machine after administration of the pancuronium bromide and potassium chloride and gives no indication how, or in fact whether, execution personnel would respond if the BIS monitor displayed a reading above "60" during the later stages of the execution. The protocol thus completely ignores the Court's condition that Defendants develop plans "to insure Plaintiff is immediately returned to an unconscious state" if he exhibits signs of consciousness at the time of administration of subsequent chemicals.
In sum, the Court's Order offered appropriate conditions that would have allowed the execution to proceed, thereby respecting the State's interest in proceeding with its judgment, while at the same time responding to the serious concerns raised by Plaintiffs evidence. Defendants ignored the Court's conditions. They have not complied with the terms of the Order. Moreover, as will be discussed in greater detail below, they have failed to address the substantial concerns raised by Plaintiff that he faces an unacceptable and unnecessary risk of conscious suffering during his execution in violation of the Eighth Amendment due to Defendants' failure to (1) ensure that the personnel responsible for administering anesthesia are appropriately trained and qualified; (2) adopt medically appropriate standards for administering and monitoring anesthesia; (3) provide opportunities for direct monitoring of the inmate; and (4) make provision for foreseeable contingencies that may arise during execution.
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The Court's 7 April 2006 Order, which was based upon its review of the evidence and consideration of the parties' arguments, did not invite Defendants to circumvent the conditions imposed by the Court by designing an alternative method that Defendants felt would address the serious questions raised by Plaintiff. Yet, this is exactly what Defendants have done. While it is true that under different circumstances, Defendants could attempt, through discovery and litigation, to demonstrate that their incorporation of the BIS monitor eliminates the deficiencies raised by Plaintiffs Amended Complaint and Motion for Preliminary Injunction, this demonstration is not appropriate under the circumstances of this case. As is described in detail below, Plaintiff does not believe that Defendants' proposed protocol is constitutionally sufficient, and more importantly, this Court's Order does not contemplate that Defendants should be allowed to proceed with Plaintiffs execution, now less than one week away, using an entirely new protocol, not previously considered by the Court or the Plaintiff at any time during the briefing and argument of this matter.
Thus, because Defendants have failed to comply with the terms of this Court's Order by giving notice of their plans to proceed with Plaintiffs execution in the manner outlined by the Court, a preliminary injunction including a stay of execution should immediately issue without the necessity of further proceedings.
II. DEFENDANTS' PROPOSED USE OF THE BIS MONITOR DOES NOT ALLEVIATE THE SUBSTANTIAL CONCERNS RAISED BY PLAINTIFF'S EVIDENCE. In support of his Motion for Preliminary Injunction, Plaintiff presented evidence that
Defendants' protocol created a serious risk that anesthesia would not be appropriately administered and that Plaintiff would consciously suffer excruciating pain during the course of his execution in violation of his Eighth Amendment rights. After considering this evidence, the
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Court concluded that Plaintiff "raised substantial questions as to whether North Carolina's
execution protocol creates an undue risk of excessive pain." (Order at 13-14.) Instead of
complying with the terms of the Court's Order, Defendants now propose to "incorporate the use
of the BIS monitor ... to insure the unconsciousness of the Plaintiff." (Defs.' Notice at 4.)
However, the available evidence, including guidelines issued by the American Association of
Anesthesiology ("ASA") and American Association of Nurse Anesthetists ("AANA"), the
considerations for use distributed by the manufacturer of the device, and the opinions of
Plaintiffs expert anesthesiologists and certified registered nurse anesthetist, demonstrates that, as
proposed by Defendants, use of the BIS machine does not comply with medically accepted
standards of care and fails to ensure that anesthesia will be properly administered such that
Plaintiff will be rendered fully unconscious prior to injection of the painful lethal chemicals.
A. The BIS Monitor Is In1tended to be Used as an Adjunct to Other Patient Monitoring and Cannot Substitute for Direct Monitoring and Exercise of Clinical Judgment of a F'roperly Qualified Medical Professional.
According to Plaintiffs expert anesthesiologist Mark J. S. Heath, M.D.:
[I]t is virtually universally accepted and understood by all anesthesiologists that the BIS monitor and other brain function monitors cannot be used as the sole method for assessing anesthetic depth. Instead, BIS monitors are only to be used as part of a suite of monitors and devices to help assemble an overall assessment of anesthetic depth. This assessment of anesthetic depth can only be properly and accurately and reliably undertaken by an individual with considerable specialized clinical training, and in the United States it is generally performed by highly specialized nurses and physicians - certified registered nurse anesthetists ("CRNAs") and anesthesiologists. (Third Heath Aff. ~~ 8-9.) Defendants' proposed use of the BIS monitor-in isolation, without
direct monitoring or the exercise of skill or judgment by personnel with appropriate training in
anesthesia-is utterly inconsistent with this understanding of the function of the device.
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Defendants' use also directly contradicts the manufacturer's guidelines for use of the BIS monitor and the positions of the national organizations devoted to raising and maintaining standards of practice in the field of anesthesiology.
The following statement appears on the website of Aspect Medical Systems, Inc. ("Aspect"), the maker of the BIS monitoiing technology: "Clinical judgment should always be used when interpreting the BIS in conjjunction with other available clinical signs. Reliance on the BIS alone for intraoperative aiJtesthetic management is not recommended." Aspect Medical Systems, Considerations for Using BIS, available at http://www.aspectmedical.com/ resources/proc_cards/or/components_anesthesia.htm. This statement appears prominently in the operating manuals that accompany the BIS monitors sold by Aspect. See A-2000 BIS Monitoring System Operating Manual, available at http://www.aspectmedical.com/assets/ Documents/pdf/070-0015-040121A2kmanrev302.pdf; BIS Vista Monitoring System Operating Manual at 111, available at http://inservice.aspectmedical.com/vistalmanual/manual.pdf. Similarly, the "Clinician's Guide to Bispectral Index" published by Aspect Medical Systems includes the following statement regarding product use:
It is important to note that reliance on BIS monitoring alone for intraoperative anesthetic management is not recommended. Clinical judgment is crucial when interpreting BIS data. Patient assessment should include evaluation and correlation of BIS data with hemodynamic and other monitoring data as well as observation of clinical signs. The BIS value should be thought of as an additional piece of information that must be interpreted in the context of all other information available for patient assessment. "Monitoring Level of Consciousness During Anesthesia and Sedation: A Clinician's Guide to the Bispectral Index" at 4-12, available at http://www.aspectmedical.com/assets/documents/pdf/ complete_bis_handbook.pdf. The Guide further states: In the operating room, dramatic changes in blood pressure and heart rate are not infreqmmt and require the anesthesia provider to
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make rapid diagnostic assessments and timely interventions. BIS monitoring provides new data that can facilitate decision-making and management techniques in many of these situations. BIS monitoring is not a substitute for keen clinical judgment. However, using BIS information as part of their assessment, clinicians can make more informed decisions about the dosing and balance of anesthetic agents and other adjuvant therapies such as analgesics, epidural anesthesia and cardioactive agents, especially in patients at increased risk.
!d. at 1-3 (emphasis added).
Scott M. Kelley, M.D., a board-certified anesthesiologist and the Vice President and
Medical Director of Aspect, confirms that Defendants' proposed use of the BIS monitor is
medically inappropriate and contrary to the intended use of the product. Regarding the
Defendants' purchase of the BIS monitor, Dr. Kelley states:
Earlier this week, representatives of the Defendants purchased [a] BIS monitor, an Aspect A-2000 EEG Monitor with BIS, by calling Aspect's 1-800 telephone sales number. In response to standard inquiries from Aspect's telephone sales team, those representatives of the Defendants indicated that they were purchasing the Aspect BIS monitor for use in operating rooms, mobile operating rooms and intensive care units and never indicated in any way that they intended to use it in connection with the execution of the Plaintiff.
(Kelley Aff. ~ 9.) The Operating Manual that was shipped by Aspect to Defendants "clearly
indicates that: 'the BIS monitor is intended for use on ... patients within a hospital or medical
facility providing patient care,"' conditions that will not be observed under Defendants' intended
use of the product. (!d. ~ 10.) Moreover, according to Dr. Kelley, the BIS monitor has never
been approved by the FDA for the use contemplated by Defendants:
While the Defendant Polk notes in his Second Affidavit, ~ 3, that "the BIS monitor has been approved by the Food and Drug Administration ("FDA") for multiple purposes," he does not indicate that the intended uses submitted to the FDA by Aspect and the "cleared indications" by the FDA have always related solely to the provision of therapeutic care to patients by trained doctors and nurses.
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(Id. ,, 11, 12.) Dr. Kelley has expressed concerns that that the personnel who will read the BIS monitor
under Defendants' protocol will be physically separated from the Plaintiff and "may be relying excessively - or even solely - on the BIS monitor readings rather than clinical observations" and may not have received appropriate training in the use of the BIS monitor. (Id. ,, 19, 20.) In sum, "Aspect's concern is that its product may be employed by the Defendants in a manner that is entirely contrary to its intended use, its cleared indications for use and its Operating Manual. Aspect is further concerned that the BIS monitor may be operated by persons lacking appropriate training." (Id. , 21.) Under these circumstances, had Dr. Kelley known the Defendants' true purpose for purchasing the BIS monitor, he would have acted to prevent the sale. (!d. , 22.)
In October 2005, the ASA approved a "Practice Advisory for Intraoperative Awareness and Brain Function Monitoring" recently adopted by the ASA, which specifically evaluates the use of brain functioning monitoring technology, such as BIS monitors, and offers guidance regarding the use of these devices. This document includes numerous statement that refute Defendants' assertion that a BIS monitor can be used in isolation, without other monitoring or interpretation by personnel with appropriate training in anesthesia, to ensure the Plaintiff will achieve an adequate plane of anesthesia prior to the injection of pancuronium bromide and potassium chloride. While all individuals participating in the ASA Task Force "agree that clinical techniques (e.g., checking for purposeful or reflex movement) are valuable and should be used to assess intraoperative consciousness," participants did not agree that "a brain activity monitor is valuable and should be used to assess intraoperative depth of anesthesia for all patients." Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, Anesthesiology, Vol. 104, No.4, 847, 851, 854 (Apr. 2006) (attached as Exhibit 1 to Third Heath Aff.).
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Based upon its review of available literature and opinions, the ASA Task Force reached
the following conclusion regarding the assessment of consciousness: "Intraoperative monitoring
of depth of anesthesia, for the purpose of minimizing the occurrence of awareness, should rely
on multiple modalities, including clinical techniques (e.g., checking for clinical signs such as
purposeful or reflex movement) and conventional monitoring systems (e.g., electrocardiogram,
blood pressure, HR, end-tidal anesthetic analyzer, capnography). Id. at 854. With respect to use
ofbrain function monitoring devices, like the BIS monitor, the Advisory states:
The general clinical applicability of these monitors in the prevention of intraoperative awareness has not been established. Although a single randomized clinical trial reported a decrease in the frequency of awareness in high-risk patients, there is insufficient evidence to justify a standard, guideline, or absolute requirement that these devices be used to reduce the occurrence of intraoperative awareness in high-risk patients undergoing general anesthesia. In addition, there is insufficient evidence to justify a standard, guideline, or absolute requirement that these devices be used to reduce the occurrence of intraoperative awareness for any other group of patients undergoing general anesthesia.... It is the consensus of the Task Force that brain function monitoring is not routinely indicated for patients undergoing general anesthesia .... Id. at 855 (emphasis added). 1
These conclusions are echoed by the AANA, which issued a model policy for CRNAs
regarding the "Prevention and Monitoring ofUnintended Awareness Under General Anesthesia."
This model policy requires "[t]he Department of Anesthesiology [to] provide and document
training of individual anesthesia providers on the consciousness monitoring system prior to
1 Press releases issued by the ASA in connection with the adoption and publishing of the Practice Advisory stress the importance of direct monitoring of patients by appropriately trained anesthesia professionals. See Press Release, American Society of Anesthesiologists, Pre-surgery Communication Comforts and Empowers Patients (Mar. 31, 2006), available at http://www.asahq.org/news/asanews040306.htrn ("The advisory states that patients should be monitored with clinical techniques and conventional monitors such as electrocardiograms, vital signs and gas analyzers. Newer devices called 'brain function monitors' may also be used at the discretion of the individual anesthesiologist."); Press Release, American Society of Anesthesiologists, Report on Awareness Under General Anesthesia Says Anesthesiologist Have Multiple Tools and Approaches for Minimizing Risks (Oct. 25, 2005), available at http://www.asahq.org/news/news102505.htm ("[T]he most important monitor in the operating room is the anesthesiologist, who has 12 years of medical training and a wealth of experience to draw on when deciding what is appropriate for each individual patient.").
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clinical use" and that "[s]ound clinical judgment should always be used when interpreting the
'
consciousness monitor in conjunction with other available clinical signs." American Association ofNurse Anesthetists, Model Policy for "Prevention and Management of Unintended Awareness Under General Anesthesia" (Apr. 13, 2005), available at, http://www.aana.com/ News.aspx?ucNavMenu_TSMenuTargetJ[)=62&ucNavMenu_TSMenuTargetType=4&ucNavM enu_TSMenuiD=6&id=712; (see also Third Maree Aff. '1[6). Moreover, in a patient education brochure jointly issued by the ASA and AANA, these organizations emphasize that "no monitoring device can replace the judgment and skill of an anesthesia professional who has years of training and clinical experience." Patient Awareness Under General Anesthesia- What Is It?, available at http://www.asahq.org/patientEducation/Awarenessbrochure.pdf.
Consistent with all of the startdards and recommendations cited above, Plaintiffs anesthesiology experts uniformly opine that Defendants' proposed use of the BIS monitor as the sole indicator of Plaintiffs level of conseiousness is contrary to accepted medical standards. Dr. Heath has stated that use of the BIS monitor during executions by lethal injection "would only be acceptable if there were also a properly qualified medical professional in place to integrate the readout of the BIS monitor with other methods of assessing anesthetic depth." (Third Heath Aff. '1[7.) As further explained by Dr. Heath:
The skill, experience, and judgment that goes into the assessment of anesthetic depth can not be imparted in any other way than by undergoing this extensive hands-on training. In addition to all of the science that must be mastered, there is an "art" to the assessment of anesthetic depth, and this acquired skill, talent, and experience can not be replaced by machines, let alone by a single device such as a BIS monitor. (!d. at '1[9.) Dr. Philip G. Boysen agrees that "[t]he BIS monitor is not a stand alone monitor, but only one part of the many sources of clinical information that can be relied upon by
anesthesiologists or CRNAs when delivering anesthetic drugs." (Second Boysen Aff. 'If 4.)
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Thus, "[a]ccepted standards of care in North Carolina do not permit the BIS monitor to be used as a substitute for direct monitoring by medical professionals with adequate training and expertise in the practice of anesthesia." (Id. ~ 5.) Nancy Bruton-Maree, CRNA, reaches the same conclusion regarding Defendants' proposed use of the BIS monitor:
To my knowledge, there is no one piece of technology that is used alone to monitor physical parameters for assessment of anesthetic depth. Assessment of anesthetic depth requires properly qualified and trained medical personnel to use multiple monitoring techniques. Properly qualified medical personnel would not rely solely on a BIS monitor. (Third Maree Aff. ~ 7.) Indeed, the medical literature and manufacturer recommendations reviewed by Plaintiffs counsel have revealed no documents or opinions that would support Defendants' proposed use of the BIS monitor as the sole indictor of Plaintiffs level of consciousness, other than the Third Affidavit of Mark Dershwitz, M.D., Ph.D. However, though Dr. Dershwitz now advocates the use of a BIS monitor in the Defendants' execution protocol, he has previously expressed concerns about the effectiveness of this device when used to assess consciousness during an execution by lethal injection. In connection with Baze v. Rees, Franklin Circuit Court, No. 04CI-01 094, Dr. Dershwitz testified as follows regarding the use of a BIS monitor in this context: Now, you asked me about the possibility of employing a BIS monitor during an execution to confirm that the inmate would be unconscious. And I see one theoretic problem with that, . . . knowing what I know about how potassium chloride acts, since the BIS monitor is measuring very, very tiny voltages on the forehead that are coming from the brain, when the potassium chloride causes widespread stimulation of skeletal muscles, I expect that those voltages that will be produced will overwhelm the EEG voltage that the monitor is trying to measure ...
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(Transcript,2 Baze v. Rees, Franklin Circuit Court, No. 04-CI-01094 (Ky. Cir. Ct. May 2, 2005) (attached hereto as Exhibit A) at A-7.) When questioned in more detail regarding the effect of potassium chloride on the BIS monitor, Dr. Dershwitz stated, "So what I think is going to happen if a BIS monitor were used for an execution, is once the potassium chloride caused skeletal muscle to be stimulated, the digital read out from the BIS monitor, I believe, will go blank." (Id. at A-7, A-8.)
In a rebuttal expert report filed in February of this year, Dr. Dershwitz reiterated these conclusions and cautioned against the use of a BIS monitor to measure level of consciousness during executions by lethal injection: "The administration of a large does of potassium chloride will cause widespread depolarization (biologically-generated electrical signals) throughout the body. I predict that the BIS monitor would be unable to assess the level of consciousness following potassium chloride administration." (Dershwitz Rebuttal Report, Walker v. Johnson, No. 1:05cv934, at 4-5 (E.D. Va. Feb. 3, 2006) (attached hereto as Exhibit B).) Significantly, Dr. Dershwitz also opines that "[i]t would be possible to test my hypothesis in an anesthetized animal. Prior to such an experiment being performed, however, it would not be prudent to recommend the use ofthe BIS monitor tluring lethal injections." (Id. at 5 (emphasis added).)
Defendants have offered no evidence that there have been any testing of the BIS monitor, as recommended by their own expert, to establish the effectiveness and reliability of the device in measuring an inmate's level of consciousness during execution by lethal injection. Defendants nevertheless propose to use the BIS monitor in the precise manner Dr. Dershwitz found to be inappropriate on two prior occasions. Furthermore, given this Court's explicit condition that
2 The official court record of the proceeding in Baze v. Rees is maintained in the form of video-recordings consisting of several videocassette tapes. For the convenience of the Court, Plaintiff has attached as Exhibit A portions of a written record transcribed from the video-recordings. Exhibit A also includes a Transcriber's Certification attesting to the accuracy of the written transcript. Should the Court wish to view the original videorecording of Dr. Dershwitz's testimony, it will be promptly furnished by Plaintiff
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Defendants "ensure that Plaintiff is in all respects unconscious prior to and at the time of the

administration of any pancuronium or potassium chloride" (Order at 14), the testimony of Dr.

Dershwitz expert establishes that the BIS monitor cannot be relied upon to assess consciousness

throughout the execution process.

B. Because the Reliability of the BIS Monitor Has Not Been Established Defendants' Proposed P1rotocol Fails to Obviate the Serious Questions Raised by Plaintiff.
In a Practice Advisory published earlier this month, the ASA specifically concluded that

"[t]he general clinical applicability of [brain function monitors such as the BIS monitor] has not

been established." Practice Advisory for Intraoperative Awareness and Brain Function

Monitoring, Anesthesiology, Vol. 104, No. 4, 847, 855 (Apr. 2006) (attached as Exhibit 1 to

Third Heath Aff.). More specifically, the ASA Task Force reported:

Id. at 852.

[C]ase reports suggest that routine intraoperative events (e.g., administration of depolarizing muscle relaxants, activation of electromagnetic equipment or devices, patient warming or planned hypothermia) may interfere with BIS functioning. Two case reports were found that reported patients experiencing intraoperative awareness despite monitored values indicating an adequate depth of anesthesia. Finally, still other case reports suggested that certain patient conditions may affect BIS values.

Like the ASA, Dr. Heath concludes that "the clinical roles of BIS monitors, and other

brain function monitors, are not yet fully established or defined, and . . . the issue remains a

matter of considerable debate and discussion within the profession of anesthesiology." (Third

Heath Aff. ~ 6.) Dr. Heath also describes potential inaccuracies in the readings displayed by the

BIS monitor that make it inappropriate for use in the manner proposed by Defendants:

In some cases a BIS monitor can indicate a deep plane or level of anesthesia when in fact the patient is demonstrably fully awake, aware, and conscious. Indeed, BIS readout values that are far below 60, the value proposed by the D.O.C. as being suitable for

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administering the agony-inducing drugs pancuronium and potassium, can be observed in individuals who have received no anesthetic agent and who are fully conscious. See Messner, M., et al., "The Bispectral Index Declines During Neuromuscular Block in Fully Awake Patients," Anesthesia & Analgesia, 2003; 97:48891, attached as Exhibit 5. This is just one of the reasons why it is so important that the BIS monitor not be used as a "stand-alone" device to assess anesthetic: depth, but instead must be used only in conjunction with a broader suite of monitors, instruments, and observation techniques. Assessing anesthetic depth by looking solely at a BIS monitor would be as dangerous and absurd as driving a bus by looking only at the speedometer.
(Third Heath Aff. ~ 24; see also Second Boysen Aff. ~ 7 ("I am aware of reported instances of
patients regaining consciousness or awareness while using the BIS monitor as one modality to
monitor the 'plane of anesthesia.' Therefore, this device cannot guarantee that a patient is in fact
unconscious following administration of anesthesia.").)
The opinions of Plaintiffs experts are confirmed by a recent study measuring the
reliability of BIS monitors. Researchers applied two BIS electrode strips to the forehead of the
same patients and compared the results for consistency. Niedhart, Dagmar J., et al.,
"Intraoperativ~ Reproducibility of the BISxp® Monitor," Anesthesiology, Vol. 104, No. 2, 242
(Feb. 2006) (attached as Exhibit 2 to Third Heath Affidavit). Considering only those reading
"that differed uninterruptedly for at least 30 s[econds]," the study found that "10.7% of the time,
the BISxp® devices suggested different anesthetic planes from each other, which would suggest
different anesthetic management." Id. at 247-48. These results lead the authors to the following
conclusion:
In summary, the results of this study suggest that the BISxp® does not consistently display intrapatient reproducibility. These results are at variance with the manufacturer's claim that the BIS® monitor provides a reproducible and "reliable single number that represents each patient's level of consciousness." The results of this study reinforce the sentiment expressed on the Aspect Medical Web site: "Clinical judgment should always be used when interpreting the BIS in conjunction with other available clinical
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Id. at 248. C.

signs. Reliance on the BIS alone for intraoperative anesthetic management is not recommended."
The Revised Protocol Proposed by Defendants Fails to Provide Any Information Demonstrating that the Personnel Responsible for Operating the BIS Monitor Possess Ad1equate Training and Experience.

Even if the BIS monitor, when used in isolation as the sole measure of anesthetic depth,

could reliably assess an inmate's level of consciousness during execution - a claim that is

contradicted by medical guidelines, the manufacturer's specifications for use, and even the prior

testimony of Defendants' own expert - Defendants' proposed protocol would still be

inadequate because it fails to specify whether the specific personnel operating the BIS monitor

have had any training or prior clinical experience with this device. Indeed, Dr. Dershwitz's

suggestion that any registered nurse would have the requisite skill and training to apply and

interpret the BIS monitor is refuted by each of Plaintiffs experts, including Ms. Maree, a CRNA

with extensive experience in the teaching of nursing professionals.

According to Ms. Maree, "[i]n order for one to make proper use of a BIS monitor as part

of monitoring anesthesia, one must be educated, trained, credentialed, and experienced in

anesthetic care and properly trained and experienced in the use of the BIS monitor." (Third

Maree Aff. ,-[ 9.) Based upon her review of the Defendants' Notice and Affidavits, she does "not

see any information to suggest that the execution team members are appropriately qualified to

monitor anesthesia in general, or to use the BIS monitor in particular." (!d.) Dr. Heath concurs,

stating that:

[T]he clinical utility of the BIS monitor for anesthesiologists derives in significant part from spending many hours personally observing the readouts of the BIS monitor in conjunction with the continuous real-time flow of multiple modalities of observation and diagnostic information and information from other monitoring devices . . . A person who has not gone through this process of

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learning, through experience, to use the BIS monitor as part of their clinical anesthesiology practice should under no circumstances attempt to use a BIS monitor on their own. (Third Heath Aff. ,-r 10 (emphasis added).) By failing to provide any information regarding the training and/or experience of personnel in the use of the BIS monitor or m the practice of anesthesiology generally, Defendants have failed to comply with this Court's condition that "personnel with sufficient medical training" be present and aceessible to ensure that Plaintiff "is in all respects unconscious" prior to the administration of the paralyzing pancuronium bromide and excruciating potassium chloride injections. D. The Addition of the BIS Monitor Does Not Address the Defendants' Failure to Make Provision for Foreseeable Problems that May Arise During Execution. As discussed in Section I above, in the event that anesthesia is improperly administered such that the BIS monitor fails to drop below Defendants' threshold number, it appears that the only response permitted under the protocol is the re-administration of sodium pentothal by execution personnel who possess no medical training whatsoever. Thus, Defendants' response does not call for, or even allow, the provision of "appropriate medial care so as to insure that Plaintiff is immediately returned to an unconscious state." (Order at 14.) This problem is only exacerbated by the fact that Defendants' proposed protocol places the medical personnel observing the BIS monitor outside the execution chamber, delaying any conceivable response to problems that may occur during the administration of anesthesia. According to Dr. Heath: It is also very important to note that the DOC intends to place the BIS monitor outside of the execution chamber and run the lead for the monitor into the chamber. Contrary to inferential arguments by Dr. Dershwitz, the induction of general anesthesia should never be undertaken from a separate or remote location that lacks optimal
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visual surveillance of the procedural field. Instead, in order to meaningfully monitor and control anesthetic depth the anesthesia care provider needs to be immediately adjacent to the patient, within arm's length from the patient's upper body and head when inducing anesthesia. I strongly believe that it is reckless and negligent to contemplate the induction of general anesthesia, and the monitoring of anesthetic depth during the execution process, from a separate location-with or without a BIS monitor. (Third Heath Aff. ~ 22.) By failing to include any opportunities for direct monitoring of Plaintiff and immediate access by appropriately trained medical personnel, Defendants' protocol needlessly increases the risk that Plaintiff will not be fully anesthetized and will experience excruciating pain during the course of his execution. Similarly, Ms. Maree notes in her Affidavit that "nothing in the Notice or Affidavits address my concerns regarding the maintenance of the integrity of the IV sites throughout the administration of the drugs." (Third Maree Aff. ~ 11.) Though a BIS reading above "60" following injection of 3000 mg of sodium pentothal would necessarily indicate that the drug has not been successfully delivered into the inmate's circulation, Defendants' protocol fails to include any measures to identify or remedy the source of the administration problem. As Ms. Maree explains, "[a]n infiltration is not always obvious. No steps have been taken to monitor IV sites of infiltration or identify what will be done in the event that infiltration occurs." (!d.) Furthermore, though Defendants now intend to use the BIS monitor as the sole means of assessing Plaintiffs level of consciousness during the course of his execution, they have offered no plan for assessing consciousness in the event that the BIS monitor malfunctions or otherwise fails to provide a accurate reading. This Court recognized that, "[i]f the alleged deficiencies do, in fact, result in inadequate anesthesia prior to execution, there is no dispute that Brown will suffer excruciating pain as a result of the administration of pancuronium bromide and potassium chloride." (Order at 12.)
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Such an execution would be inhumane and in violation of the Eighth Amendment. Nevertheless,
Defendants' proposed protocol continues to call for the administration of anesthesia without medically accepted safeguards to ensure unconsciousness in direct violation of this Court's 7 April 2006 Order. This protocol is unacceptable.
~:ONCLUSION
For the foregoing reasons, Defendants' Notice and Response to 7 April2006 Order fails to comply with the terms or the intent of this Court's Order. Plaintiff respectfully requests that a preliminary injunction, including a stay of execution, issue immediately.
Respectfully submitted this the 14th day of April2006. Is/ J. Donald Cowan Jr. J. Donald Cowan, Jr. N.C. State Bar No. 0968 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 21927 Greensboro, NC 27420 Telephone: (336) 378-5200 Telecopier: (336) 378-5400 Email: don.cowan@smithmoorelaw.com Is/ Laura M. Loyek Laura M. Loyek N.C. State Bar No. 28708 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 27525 Raleigh, NC 27611 Telephone: (919) 755-8700 Telecopier: (919) 755-8800 Email: laura.loyek@smithmoorelaw.com
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Case 5:06-ct-03018-H Document 34-1 Filed 04/14/2006 Page 22 of 22
CERTIFICATE OF SERVICE This is to certify that on this date, I electronically filed the foregoing REPLY IN SUPPORT OF PLAINTIFF'S MOTJ[ON FOR PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system, which will send notification of such filing to counsel of record:
Thomas J. Pitman, Special Deputy Attorney General (tpitman@ncdoj.com) James P. Smith, Special Counsel Gpsmith@ncdoj.com) North Carolina Department of Justice 114 West Edenton Street Raleigh, North Carolina 27602 This the 14th day of April, 2006.
Is/ Laura M. Loyek Laura M. Loyek Attorney for Plaintiff
22

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

WILLIE BROWN, JR.,

)

N.C. DOC # 0 0 5 2 2 0 5 ,

)

)

Plaintiff,

)

)

v.

)

)

)

THEODIS BECK, Secretary,

)

North Carolina Department of

)

Corrections, Raleigh, North

)

Carolina, MARVIN L. POLK, Warden, )

Central Prison, Raleigh, North

)

Carolina, and UNKNOWN EXECUTIONERS, )

Individually, and in their Official )

Capacities,

)

\

Defendants.

)

ORDER

Plaintiff, a state prisoner under a sentence of death, was executed by the State of North Carolina on April 2 1 , 2 0 0 6 . All matters pending before the Court have been rendered moot by Plaintiff's execution. Accordingly, this action is DISMISSED.

At Greenville, NC

Senior United States District Judge

 
 PUBLISHED

Filed: April 20, 2006

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

WILLIE BROWN, JR.,



Plaintiff-Appellant,

v.

 THEODIS BECK, Secretary, North
Carolina Department of Corrections; MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina; UNKNOWN EXECUTIONERS,
 Defendants-Appellees.

No. 06-9 (5:06-ct-03018-H)

O R D E R
By order dated April 17, 2006, the district court denied the motion of Willie Brown, Jr. for a preliminary injunction enjoining the defendants from carrying out his execution which is scheduled for Friday, April 21, 2006. Brown has filed a notice of appeal to this Court from that order, a motion for preliminary injunction and a brief in support. Appellees filed a brief opposing appellant’s motion for preliminary injunction.
The Court affirms the district court’s denial of a preliminary injunction and directs the clerk to issue the mandate forthwith.
Entered at the direction of Judge Luttig with the concurrence of Judge Traxler. Judge Michael wrote the attached dissent.
For the Court
/s/ Patricia S. Connor Clerk

2

BROWN v. BECK

MICHAEL, Circuit Judge, dissenting:

I respectfully dissent from the majority’s affirmance of the district court’s denial of a preliminary injunction to temporarily block the execution of Willie Brown, Jr. Brown is a North Carolina death row inmate scheduled to be executed by lethal injection on April 21, 2006, at 2:00 a.m. He filed a § 1983 action seeking to enjoin the warden and others ("the State") from executing him by lethal injection under the procedures the State intended to employ. Specifically, Brown contends that the State will use an inadequate protocol for anesthesia as a precursor to carrying out his death sentence, and that as a result he faces an unacceptable and unnecessary risk of suffering excruciating pain during his execution in violation of the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (recognizing, in the context of executions, that the Eighth Amendment prohibits punishment "involv[ing] the unnecessary and wanton infliction of pain"); In re Kemmler, 136 U.S. 436, 447 (1890) (recognizing that the Eighth Amendment prohibits "torture or a lingering death"). The district court, in its final order, denied Brown’s motion for a preliminary injunction enjoining his execution on the ground that the State’s revised protocol ensures that Brown will be rendered unconscious during the execution and will not feel pain. Because this finding is not supported by the clear weight of the evidence, I would reverse.

In its April 7, 2006, order the district court determined that there were "substantial questions as to whether North Carolina’s execution protocol creates an undue risk of excessive pain." (Order, 13-14, Apr. 7, 2006.) Specifically, the court found that inadequate administration of anesthesia prior to execution would undisputedly make Brown "suffer excruciating pain as a result of the administration of pancuronium bromide and potassium chloride." (Id. at 12.) The court further determined that any difficulties could be addressed if

there are present and accessible to [Brown] throughout the execution personnel with sufficient medical training to ensure that [Brown] is in all respects unconscious prior to and at the time of the administration of any pancuronium bromide or potassium chloride. Should [Brown] exhibit effects of consciousness at any time during the execution, such personnel shall immediately provide appropriate medi-

BROWN v. BECK

3

cal care so as to insure [Brown] is immediately returned to an unconscious state.

(Id. at 14.)

On April 12, 2006, the State responded by proposing a revised protocol that uses a bispectral index (BIS) monitor, a device that, according to the State, can monitor Brown’s level of consciousness during the execution procedure. Over Brown’s objections, the district court determined that the revised protocol will ensure that Brown is rendered unconscious prior to and throughout the period during which lethal drugs are injected into his bloodstream, so that he will not perceive pain during his execution. The court stated,

[The State] will not administer lethal drugs until after total unconsciousness of the plaintiff has been verified through use of the BIS monitor. Thus, [Brown’s] concerns about human error are greatly mitigated by the use of this independent check on [his] level of consciousness before the potentially pain-inducing injections . . . begin. Whatever concerns might be raised about this "machine" or about the propriety of using it in executions, it is apparent to this court that the BIS monitor has been used reliably for a decade and is used in many anesthesia procedures across the country to determine an individual’s level of consciousness.

(Final Order, 6, Apr. 17, 2006). Because these findings are not supported by the clear weight of the evidence in the record, the district court abused its discretion in denying Brown’s motion for a preliminary injunction. See Bryte v. Am. Household, Inc., 429 F.3d 469, 475 (4th Cir. 2005) ("A district court abuses its discretion if its conclusion . . . rests upon a clearly erroneous factual finding."); Jiminez v. Mary Washington Coll., 57 F.3d 369, 379 (4th Cir. 1995) (recognizing that a district court conclusion that is "contrary to the clear weight of the evidence considered in light of the entire record" is clearly erroneous).

First, the district court’s finding that the BIS monitor alone will accurately verify Brown’s level of consciousness is contrary to the clear weight of the evidence considered in light of the entire record.

4

BROWN v. BECK

Brown presents an impressive array of evidence that although a BIS monitor may be helpful in assessing the effectiveness of anesthesia, it is not suitable as the State intends to use it — as the sole indicator of Brown’s level of consciousness. "It is virtually universally accepted and understood by all anesthesiologists that the BIS monitor and other brain function monitors cannot be used as the sole method for assessing anesthetic depth," but must be used alongside other markers of consciousness (such as purposeful reflex movement, blood pressure, and heart rate). (Third Aff. of Dr. Mark Heath ¶¶ 8-9.) In addition to offering testimony to this effect from three leading medical experts, Brown offers persuasive evidence from independent, authoritative sources. For instance, Aspect Medical Systems, the manufacturer of the BIS monitor purchased by the State, warns that "[c]linical judgment should always be used when interpreting the BIS in conjunction with other available clinical signs. Reliance on the BIS alone for intraoperative anesthetic management is not recommended." Aspect Medical Systems, Considerations for Using BIS, at http://www.aspectmedical.com/resources/proc_cards/or/components_ anesthesia.htm. Likewise, the American Society of Anesthesiologists (ASA) and the American Association of Nurse Anesthetists have promulgated standards that counsel against the use of brain functioning technology, such as BIS monitors, in isolation without other monitoring methods or interpretation by personnel with appropriate training in anesthesia. Most notably, the ASA has observed:

The general clinical applicability of [BIS monitors] in the prevention of intraoperative awareness has not been established. Although a single randomized clinical trial reported a decrease in the frequency of awareness in high-risk patients, there is insufficient evidence to justify a standard, guideline, or absolute requirement that these devices be used to reduce the occurrence of intraoperative awareness in high-risk patients [or any other group of patients] undergoing general anesthesia.

American Society of Anesthesiologists, Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 855 (2006) (attached as Ex. 1 to Third Heath Aff.). Likewise, a recent study on the reliability of BIS monitors in the medical journal Anesthesiology concludes that "[a]nesthesia providers

BROWN v. BECK

5

should not rely exclusively on the BIS reading when assessing depth of anesthesia." See Dagmar J. Niedhart et al., Intrapatient Reproducibility of the BISxp® Monitor, 104 Anesthesiology 242, 242 (2006) (attached as Ex. 2 to Third Heath Aff.)

The State offers scant evidence to rebut Brown’s compelling proffer. The State relies solely on the conclusory assertion of its expert, Dr. Mark Dershwitz, that in his opinion, "beyond a reasonable degree of medical certainty, . . . the utilization of the BIS monitor as part of the execution protocol . . . will prevent the possibility of [Brown] being awake during the administration of pancuronium or potassium chloride." (emphasis added) (Third Aff. of Dr. Mark Dershwitz ¶ 11.) Even if Dr. Dershwitz opined that Brown would not be conscious (rather than simply not awake), the basis for his opinion is questionable: the State offers no evidence to counter Brown’s persuasive argument that the BIS monitor cannot be used in isolation to determine an individual’s level of consciousness. Furthermore, Dr. Dershwitz’s opinion on this point is particularly suspect because just two months ago he opined in another case that, absent further testing, "it would not be prudent to recommend the use of the BIS monitor during lethal injections." Dershwitz Rebuttal Report, Walker v. Johnson, No. 1:05cv934, at 4-5 (E.D. Va. Feb. 3, 2006) (attached as Ex. B to Brown’s Objection to Def.’s Notice and Response to 7 April 2006 Order). In finding that the BIS monitor will adequately verify Brown’s unconsciousness during his execution, the district court disregarded substantial evidence, unrebutted by the State, that casts serious doubt on the reliability of the BIS monitor as the sole means of assessing consciousness.

In addition, there is no support in the record for the district court’s finding that if Brown remains conscious (or regains consciousness) during the execution, medical professionals will be able to bring about the injection of additional sodium pentothal until Brown is rendered fully unconscious. Under the revised protocol, only if the BIS monitor displays a value below 60 will the State proceed to administer the pancuronium bromide (the second drug in the lethal injection protocol which causes paralysis) and the potassium chloride (the third drug in the lethal injection protocol which causes the heart to stop beating). (Second Aff. of Marvin Polk ¶¶ 2-4.) In the event the BIS value reading remains at 60 or above, "additional sodium pentothal

6

BROWN v. BECK

[will] be given until the value reading on the BIS monitor does fall below 60." (Id. ¶ 4.) Although the protocol provides that "[t]he BIS monitor will be located such that it can be observed and its values read by [the licensed registered nurse and the licensed physician who observe the Cardiac Monitor Defibrillator]," it makes no provision for these medical professionals to actually do anything in the event the reading does not fall below 60. (Def.’s Notice and Response to 7 April 2006 Order, 3.) Thus, if Brown’s BIS reading exceeds 60 or he otherwise is conscious during the execution, the State will take the same inadequate steps to secure Brown’s unconsciousness that it would have taken under the original protocol. Even if the revised protocol could be construed as requiring the medical professionals to take some action to ensure Brown’s unconsciousness, undisputed evidence in the record establishes that, based on the execution chamber’s physical set-up, neither the warden nor any other member of the execution team can observe or respond to a malfunction in the lethal injection process. (First Aff. of Nancy Bruton-Maree ¶ 10.) Moreover, even if a medical professional could respond, there is no evidence in the record to support the district court’s finding that the professional would possess the skills necessary to ensure Brown’s unconsciousness.

Also problematic is the lack of evidence to show that the BIS monitor will accurately measure consciousness after pancuronium bromide and potassium chloride are administered. Dr. Heath opines that the administration of pancuronium bromide can lead to an inaccurate indication of anesthetic depth on a BIS monitor. He bases this opinion on a study finding that BIS readouts far below 60, the value proposed by the State as indicating an inmate’s unconsciousness, can be observed in fully conscious individuals who have been administered paralysis-inducing drugs similar to pancuronium bromide. M. Messner et al., The Bispectral Index Declines During Neuromuscular Block in Fully Awake Patients, 97 Anesthesia & Analgesia 488 (2003) (attached as Ex. 5 to Third Heath Aff.) In addition, Dr. Dershwitz, the State’s expert, has recently hypothesized that a BIS monitor cannot assess the level of consciousness once potassium chloride is administered. See Dershwitz Rebuttal Report, Walker v. Johnson, No. 1:05cv934, at 4-5 (E.D. Va. Feb. 3, 2006) (attached as Ex. B to Brown’s Objection to Def.’s Notice and Response to 7 April 2006 Order). Indeed, the revised protocol does not indicate whether the BIS

BROWN v. BECK

7

monitor will be used after administration of the second drug, pancuronium bromide, and nothing else in the record indicates that Brown’s consciousness will be monitored after this point in the execution. The district court’s finding that the revised protocol will ensure that Brown is rendered unconscious "throughout the period during which lethal drugs are injected into his bloodstream" is therefore clearly erroneous. (See Final Order, 2, Apr. 17, 2006.)

Before the State revised its execution protocol, the district court concluded that the preliminary injunction hardship-balancing test favored Brown: that "the likelihood of irreparable harm to Brown far exceeds the likelihood of harm to Defendants." (Order, 12, Apr. 7, 2006.) If Brown does, in fact, regain consciousness at any point during his execution, "there is no dispute that [he] will suffer excruciating pain as result of the administration of pancuronium bromide and potassium chloride" and that he, having suffered a tortuous death, will have no meaningful retrospective relief. (Id. at 11-12.) The district court conditionally denied Brown’s motion for preliminary injunction with the requirement that the State add safeguards to ensure that Brown is in fact unconscious during his execution. In an effort to comply with the district court’s order, and thereby shift the balance of hardships, the State incorporated use of the BIS monitor. The clear weight of evidence, however, reveals that the State’s use of the BIS monitor will not adequately ensure that Brown will remain unconscious throughout his execution. The balance of hardships therefore remains weighted in Brown’s favor. Accordingly, I would reverse the district court’s denial of Brown’s motion for a preliminary injunction and direct that court to enter the preliminary injunction and conduct further proceedings, which would allow to State to further revise its protocol.

 
 No. 06-9
IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

WILLIE BROWN, #0052205,

JR., N.C. DOC Plaintiff-Appellant,

FILLED

APR 1 S 2006

U.S. Court Fourth

of AppeLq$ Circuit

THEODIS BECK, Secretary, North Carolina Department of Correction, and MARVIN POLK, Warden, Central Frison, Raleigh, North Carolina, and UNKNOWN EXECUTIONERS, Individually, and in their Official Capacities,
Defendants-Appellees.

BRIEF OF APPELLANT
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

EXECUTION SCHEDULED: 21 APRIL 2006, 2:00 A.M.

J. Donald Cowan, Jr. SMITH MOORE LLP 300 N. Greene Street, Suite 1400 Greensboro, North Carolina 27401 (336) 378-5200
Counsel for Appellant

Laura M. Loyek SMITH MOORE LLP 2800 Two Hannover Square Raleigh, North Carolina 27601 (919) 755-8700
Counsel for Appellant

No. 06-9
IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

WILLIE 13ROWN, JR., N.C. DOC #0052205,
Plaintiff-Appellant,
V.

THEODI_; BECK, Secretary, North Caxolina Department of Correction, and MARVIN POLK, Warden, Central Pxison, Raleigh, North Carolina, and UNKNOWN EXECUTIONERS, Individually, and in their Official Capacities,

Defendants-Appellees. STATEMENT

OF JURISDICTION

This is an appeal by a North Carolina death row prisoner, Willie Brown, Jr., from the Final Order entered by the United States District Court for the Eastern District of North Carolina on 17 April 2006 denying Mr. Brown's Motion for Preliminary Injunction. The district court

had jurisciction over this matter, filed pursuant to 28 U.S.C. § 1983, under 28 U.S.C. §§ 1331, 1343, 2201, and 2202. The Notice of Appeal was filed 17 April 2006. This Court has

jurisdictic,n under 28 U.S.C. § 1292(a)(1). STATEMENT OF ISSUES PRESENTED

FOR REVIEW

1.

Whether factual determinations made by the district court in its Final Order were

clearly er:oneous because these findings were not supported by substantial evidence, disregarded substantival evidence that would have necessitated a contrary conclusion, and were contrary to the

clear weight of the evidence considered in light of the entire record.

2. Whethertheconclusionof thedistrictcourtwasanabuseof discretionbecauseit

restsuponclearlyerroneoufsindingsof materiaflact.
STATEMENT OF THE CASE

I.

Pertinent Procedural History

Mr. Brown filed this action pursuant to 42 U.S.C. § 1983, challenging the protocol and

procedures Defendants intend to employ to carry out his execution by lethal injection, scheduled

for 21 April 2006. Specifically, Mr. Brown alleges that Defendants are determined to use an

inadequat_ protocol for anesthesia as a precursor to carrying out his death sentence, and as a

result, he faces an unacceptable and unnecessary risk of suffering excruciating pain during the

course of his execution in violation of his right to be free from cruel and unusual punishment

under the Eighth and Fourteenth Amendments of the United States Constitution. Mr. Brown makes no attack on his conviction or the validity of his sentence to death by lethal injection.

On 28 February. 2006, Mr. Brown filed a Motion for Preliminary Injunction, seeking

narrowly drawn equitable relief to prevent Defendants from carrying out his execution using

their intended inadequate protocol for inducing and maintaining anesthesia, pending resolution of the merits of his claims under Section 1983. Following the close of briefing, the district court

held a hearing on 6 April 2006 to hear the arguments of counsel. Thereafter, on 7 April 2006,

the court entered an order denying Mr. Brown's Motion for Preliminary Injunction, "on the

condition that there are present and accessible to Plaintiff throughout the execution personnel

with suffi,:ient medical training to ensure that Plaintiff is in all respects unconscious prior to and

at the time of" administration of the painful lethal chemicals used to effectuate his death. (7 April

2006 Order at 14.) Defendants were further required to file a notice setting forth information

regardingtheplansandqualificationsof personnewl howouldparticipatein theexecutionin the

mannerarticulatedby theorderby noonon 12April 2005.(ld at 15.) Defendanttsimely filed their NoticeandResponsteo 7 April 2006Order. This Notice
describedthe actionstaken by Defendantsto purchasea bispectralindex monitor ("BIS monitor")andto includetheuseof this devicein a revisedexecutionprotocol.(Defs.'Noticeat

2, 4.) Oa 14 April 2006,Mr. Brownfiled and servedhis objectionto DefendantsN' otice, raising,amongotherthings,thefactthatDefendantsin' tendeduseof theBIS monitorasthesole methodo_"measuringMr. Brown'sconsciousnesdsuringtheexecutionwasdirectlycontraryto the man_ffacturer'sindications fur use, the guidelines of the American Society of

Anesthesiologistasn, deventheprioropinionsof Defendantso'wnexpertwitness.Thus, used in

the manner proposed by Defendants, the BIS monitor cannot be relied upon to ensure that

anesthesiz_ was properly administered, maintained, and monitored under Defendants' protocol such that Mr. Brown will be rendered fully unconscious and will not suffer excruciating pain

during the course of his execution.

OIL 17 April 2006, the district court entered its Final Order denying Plaintiff's Motion for

Prelimina;:y Injunction. From this order, Mr. Brown now appeals.

I!.

N.'tture of the Case

In its 7 April 2006 order, the district court evaluated Mr. Brown's Motion for Preliminary

Injunction under the familiar four-prong standard articulated in Blackwelder v. Furniture Co. v.

Seileg M,(_. Co., 550 F.2d 189 (4th Cir. 1977). With respect to the first factor, the irreparable

harm to tLe plaintiff if the injunction is denied, the court concluded:
If the alleged deficiencies do, in fact, result in inadequate anesthesia prior to execution, there is no dispute that Brown will suffer excruciating pain as a result of the administration of pancuronium bromide and potassium chloride. Moreover, if the

Stateof NorthCarolinais permittedtoexecuteBrownasscheduled on April 21, 2006,Brownwill bedeprivedof any opportunityto pursuethisactionto seekredressin theeventhesuffersa torturous death. (7 April 2006Orderat 12-13.) Recognizingthat"[t]he inability to obtaindamagesfrom the Statein a § 1983actionreducesthe showingnecessartyo cstablishirreparableharm," Rum
Creek Coal Sales. Inc. v. Caperton, 926 F.2d 353,360 (4th Cir. 1991), the district court found that "the likelihood of harm to Brown far exceeds the likelihood of harm to Defendants." (7
April 2006 Order at 12.) MI. Brown's evidence regarding likelihood of irreparable harm, combined with his
showing of likelihood of success on the merits, which included "evidence of a kind that is different from that presented in the cases previously considered by this and other courts," prompted the Court to impose certain conditions "to ensure that the State, if it chooses to go forward with executing Brown, does so in a manner that comports with the Eighth Amendment." (Id. at 8, 13.) As articulated in the 7 April 2006 Order, the district court concluded that the substantial questions raised by Mr. Brown regarding the unnecessary and unacceptable risk of exccssive pain under Defendants' existing protocol "could be resolved by the presence of medical personnel who are qualified to ensure that Plaintiff is unconscious at the time of his execution.:' (ld at 14.) Plaintiff's expert anesthesiologist has agreed that the requirement of suitably trained medical personnel "represents a very positive and reasonable step that, if implemented in a meauingful way, greatly reduces the risk of an inhumane execution." (Third Heath Aff. ¶ 12.)
In -an efrbrt to respond to the grave risk of irreparable harm recognized by the district court and Io comply with that court's directive, the Defendants revised their execution protocol. At the time of filing of Mr. Brown's Amended Complaint, the lethal injection process in North

Carolina.nvolvedthepushingfive setsof identicasl yringesintotwo intravenoulsinesleadingto the inmale'sbody. The first setof two syringescontainsa total of 3000milligramsof (1500 milligramseach)sodiumpentothala, nultra-shorat ctingbarbituratethatquicklyputstheinmate to sleep.Thesecondsetof two syringescontainssalineto flushtheIV line clean.Thethirdset contains_,total of 40 milligrams(20 milligramseach)of pancuroniumbromide(Pavulon),a chemicalparalyticagentthatresultsin total muscleparalysisT. he fourthsetcontainsa total of 160millequivalentsof potassiumchloride,a saltsolutionthatcausescardiacarrest.Thefifth set contains.,;alineto flush the IV lines clean. See North Carolina Department of Correction

"'Executio:a Method," available at http://www.doc.state.nc.us/dop/deathpenalty/method.htm.

Ul:on a signal from the Warden, both sets of syringes are injected simultaneously in order

"one" thrc.ugh "five," with each succeeding chemical solution introduced within a few seconds

after the injection of the immediately preceding chemical solution is completed. Under Defendants' protocol, registered nurses and EMTs are responsible for preparing the syringes and

inserting i:atravenous catheters into the inmate's veins ([First] Polk Aff. ¶¶ 6(b), (c)); however, each of the actual injections, including the sodium pentothal used to induce anesthesia, is

administered by an individual with no medical training who is selected from the Warden's staff.

(Polk Dep. at 103, Ex. A to Errata Sheet at 3.) These members of the execution team are

separated from the inmate by a curtain running through the execution chamber. (See Diagram

(attached as Ex. A to Pl.'s Reply Supp. Prelim. Injunction).) As summarized by the district court in its Final Order, Defendants protocol has now been

revised in the tbllowing respects:

1.

Defendants have purchased a bispectral index (BIS) monitor,

which is commonly used to analyze electroencephalogram

(EEG)

waves, or brain waves, to monitor the level of consciousness in

patients undergoing a variety of surgical procedures;

2. Undertherevisedprotocol,defendantws ill utilizethe BIS monitor
to measure the level of plaintiff's consciousness throughout the execution process;

3.

Defendants will be prepared to administer additional qualities of

sodium pentothal if plaintiff is not unconscious based on readings

of the BIS monitor after the initial 3000 rag. of sodium pentothal

has been injected into the body.

(17 April 2006 Order at 4.) More particularly, the Defendants propose to place the BIS monitor

in an observation room adjacent to the execution chamber where its display can be read by a

licensed cegistered nursc and licensed physician following the initial injection of sodium pentothal. (Defs.' Notice at 2, 4.)
Without altering its prior findings regarding the serious concerns raised by Plaintiff's

evidence regarding the risk of needless and conscious suffering due to improper administration and moniloring of anesthesia, the district court determined that the Defendants' response was satisfactory and denied Mr. Brown's Motion for Preliminary Injunction. The 17 April 2006 Order reit_:rates that the district court, like Mr. Brown, is concerned "the improper techniques or other erroJs would lead to failed administration of sodium pentothal rendering plaintiff paralyzed

but able t_ perceive pain at later stages of the execution." (17 April 2006 Order at 6.) Thus,

"without the safeguards required undcr the [7 April 2006 Order], the questions raised by plaintiff

would be so 'serious, substantial, difficult and doubtful' as to require 'more deliberate

investigati,?n.'"

(ld. at 3 (quoting Rum Creek, 926 F.2d at 359).) ARGUMENT

Following its review of the revised protocol, the district court concluded that "plaintiff's concerns _tbout human error are greatly mitigated by the use of this independent check on plaintiff's revel of consciousness before the potentially pain-inducing injections of pancuronium

bromide and potassium chloride begin." (Order at 6.) The district court further concluded that:

The State's use of the BIS monitor, the execution team's resulting awareness of the level of consciousness of the plaintiff, and the administration, if necessary, of additional quantities of sodium pentothal to ensure that plaintiff is unconscious prior to the administration of lethal drugs, together satisfy this court that defendants have substantially complied with the terms of the court's April 7, 2005 order, and that the balance of hardships under Blackwelder now favors the State and counsels against issuance of a preliminary injunction and stay in this case.

(ld.) Thus, the district court's conclusion that the balance of hardships has shifted in

Defendants' favor is predicated entirely on the revisions to the protocol set forth in Defendants'

12 April 2006 Notice. Although the district court's findings of fact with regard to the newly revised protocol are

not set out separately in its 17 April 2006 Order, the district court appears to rely in large part on

its findin_r,s with respect to the following three factual issues:

(1) Ability to Verify and Respond to Appellant's Level of Consciousness. (Order at 5.)

(2) Training of the Execution Team. (Order at 5.)

(3)

Reliability of the BIS Monitor.

(Order at 6.)

A_; outlined in greater detail below, these findings are clearly erroneous and should be set

aside because they are ill-supported by the evidentiary record before the district court. Fed. R.

Civ. P. 57'.(a) (requiring findings of fact in support of decisions refusing preliminary injunction

and providing that such findings are set aside if "clearly erroneous.")

"A factual finding is

clearly er.:oneous when the 'reviewing court on the entire evidence is left with the definite and firm con_'iction that a mistake has been committed.'" Provident Life & Accident Ins. Co. v.

Cohen, 423 F.3d 413,418 (4th Cir. 2005) (quoting United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948)). Specifically, when reviewing a district court's findings for clear error this Court has held:
we tend to focus on four avenues in which the district court may go awry in arriving at its factual findings: (1) the district court labored under an improper view or misconception of the appropriate legal standard; (2) the district court's factual determinations are not supported by substantial evidence; (3) the district court disregarded substantial evidence that would militate a conclusion contrary to that reached; and (4) the district court's conclusion is contrary to the clear weight of the evidence considered in light of the entire record.
Jiminez v Ma O, Washington College, 57 F.3d 369, 379 (4th Cir. 1995). Here, the district court's
findings _:oncerning the appellee's proposed protocol should be set aside because they are not
supported by supported by substantial evidence, the district court disregarded Mr. Brown's substantial evidence concerning the inadequacies of the proposed protocol, and the clear weight
of the evidence, considered in light of the entire record, is contrary to the district court's findings
and requires that a preliminary injunction issue.
Indeed, it appears that the district court ignored the evidentiary record when it reweighed
the balance of hardships. The district court's conclusion that the proposed revision now tips the
balance o:? hardships against the issuance of equitable relief is not supported by the findings of tact, nor c:ould the district court have made such findings on the record before it. As such, the
district court's refusal to grant preliminary injunction is an abuse of its discretion. B_3,te v. Am.
Househohl, 429 F.3d 469, 475 (4th Cir. 2005) ("A district court abuses its discretion if its
conclusion is guided by erroneous legal principles, or if it rests upon a clearly erroneous factual finding.")', Blackwelder Furniture Co. v. Seilig Mfg Co., 550 F.2d 189, 193 (4th Cir. 1977)
("When the grant or denial of interim injunctive relief is reviewed, it is simplistic to say or
imply, as _ve sometimes do, that it will be set aside only if an abuse of discretion can be shown.

For thereis, of course,the possibilitythat the court below haseitherfailed to exerciseits

discretionin somerespector elseexercisedit counterto establishedequitableprinciples. A

judge'sdscretionis not boundlessandmustbeexercisedwithin the applicablerulesof lawor

equity.")_icitationosmitted).

1.

The District Court Abused Its Discretion By Denying Preliminary Injunctive Relief

BrLsed on Clearly Erroneous Findings of Fact Concerning the Ability to Verify and

Respond to Mr. Brown's Level of Consciousness.

With respect to the BIS monitor's impact on the Defendants' ability to verify and respond

Mr. Brow)l's level of consciousness, the district court found:

Under the revised protocol, whether the medical professionals monitor the BIS monitor fi'om the execution chamber or an
adjoining room (one designed especially for carrying out and monitoring the execution process, no less) will have no impact on the likelihood that the plaintiff will feel pain. Wherever the medical professionals are located, they will be able to verify that plaintiff is unconscious after administration of sodium pentothal or, if he remains conscious at that time, they will be able to bring about the injection of additional sodium pentothal until plaintiff is rendered fully unconscious.

(Order at :i.) This finding of fact is clearly erroneous in view of the substantial evidence before

the distric: court with respect to the use of the B1S monitor to verify unconsciousness and the

efficacy o_"Defendants' proposed response in the event that the BIS monitor does not reflect an

adequate h,wel of unconsciousness.

A.

Verification of Unconsciousness.

Th,z district court's finding that the Defendants' proposed protocol will allow verification of the Mr. Brown's level of unconsciousness is contrary to the clear weight of the evidence

establishing that while a BIS monitor can be a helpful adjunct to the assessment of anesthesia it
is not medically accepted practice to use the BIS monitor as'intended by the Defendants' - as the
!:
sole indicztor of the level of consciousness. According to Mark J. S. Heath, M.D., a board-

certified anesthesiologisatnd AssistantProfessorof Clinical Anesthesiologyat Columbia University/:
[lit is virtually universally acceptedand understoodby all anesthesiologisthsat the BIS monitor and other brain function monitors cannot be used as the sole method for assessing anestheticdepth.InsteadB, ISmonitorsareonlyto beusedaspart of a suite of monitorsanddevicesto help assemblean overall assessmeonft anesthetidcepth. (ThirdHeathAff. ¶l8.) AlthoughDr.Heathfrequentlyb, ut notalways,usesa BIS monitorwhen providinganesthesitao hissurgicalpatientsheexplainsthat: [He] would not, however,rely exclusivelyon a BIS monitorto assuremeof apatient'sanestheticdepth.It isjust one tool. among
man),, that [he] use[s] and integrate[s] when providing patient carc.
(ld ¶l 5 (emphasis added).) Lit:ewise, Philip G. Boysen, M.D., FACP, FCCP, FCCM, a board certified
anesthesiologist, Professor of Medicine and Anesthesiology, Executive Associate Dean for
Graduate Ivledical Education at the University of North Carolina School of Medicine at Chapel
Hill, and f_rmer Chair of the Department of Anesthesiology explains: The BIS monitor is not a stand-alone monitor, but only one part of the many sources of clinical information that can be relied upon by anesthesiologists or CRNAs when delivering anesthetic drugs.
(Second Boysen Affidavit ¶ 4 (emphasis added).) Dr. Boysen makes clear that "the BIS monitor should always be uscd in conjunction with direct visual and tactile monitoring of the patient and
conventio_tal monitoring techniques (such as blood pressure, heart rate, and respiratory rate)."
(ld at ¶ 5.1_ Similarly, Nancy Bruton-Maree, CRNA, a Certified Registered Nurse Anesthetist and a
Registered Nurse licensed to practice in North Carolina who is the Program Director of the
l0

RaleighSchoolof NurseAnesthesianda VisitingAssistanPt rofessoar tthe Schoolof Nursing
attheUniversityof NorthCarolinaatGreensboroe,xplained:
To nayknowledget,hereis noonepieceof technologythatis used aloneto monitorphysicalparameterfsor assessmeonft anesthetic depth.
(ThirdMareeAff. ¶ 7.)
Theseexpert opinions are further supportedby the statementsof Aspect Medical
Systems,Inc. ("Aspect"), the manufactureor f the BIS Monitor purchasedby Defendants.
(KelleyAft. ¶ 9.) On itswebsiteA, spectclearlystates:
Clinical judgmentshouldalwaysbe usedwhen interpretingthe BIS in conjunctionwith otheravailableclinicalsigns. Relianceon the BIS alone for intraopcrativeanestheticmanagemenist not recommended.

Aspect Medical Systems, Considerations for Using BIS, available at

http://www.aspectmedicat.com/resources/proc_cards/or/components_anesthesia.htm.

This

statement also appears prominently in the operating manuals that accompany the BIS monitors

sold by A,'.pect. See A-2000 BIS Monitoring System Operating Manual, available at

http://ww_v.aspectmedical.com/assets/

Documents/pdf/070-0015-040121A2kmanrev302.pdf;

BIS Vista Monitoring System Operating

Manual at iii, available at http://inservice.aspectmedical.com/vista/manual/manual.pdf.

Si_ailarly, the "Clinician's Guide to Bispectral Index" published by Aspect Medical

Systems ircludes the following statement regarding product use:

It is important to note that reliance on BIS monitoring alone for

intraoperative

anesthetic management

is not recommended.

Clinical judgment is crucial when interpreting BIS data. Patient assessment should include evaluation and correlation of BIS data

with hemodynamic and other monitoring data as well as

observation of clinical signs. The BIS value should be thought of

11

asanadditionapl ieceof informationthatmustbeinterpretedin the contextof all otherinformationavailableforpatientassessment.
"MonitoringLevelof ConsciousnesDsuringAnesthesiandSedationA: Clinician'sGuideto the
Bispectrz.Ilndex" at 4-12, available at http://www.aspectmedical.com/assets/documents/pdf/

complete bis handbook.pdf. Likewise, "Practice Advisory. for Intraoperative

Awareness and Brain Function

Monitoring" Anesthesiolog3,, Vol. 104, No. 4, 847 (Apr. 2006) (attached as Exhibit 1 to Third

Heath Aff.), recently adopted by thc American Society of Anesthesiologists

specifically

evaluates the use of brain functioning monitoring technology, such as BIS monitors, and offers

guidance regarding the use of these devices directly contrary to the Defendants' intention to use the BIS monitor in isolation, without other monitoring modalities or interpretation by personnel

with appJopriate training in anesthesia. Practice Advisory for lntraoperative Awareness and Brain Function Monitoring, Anesthesiolog3,, Vol. 104, No. 4, 847,851,854 (Apr. 2006) (attached

as Exhibi! I to Third Heath Aff.). While all individuals participating in the ASA Task Force

"agree that clinical techniques (e.g., checking for purposeful or reflex movement) are valuable and should be used to assess intraoperative consciousness," participants did not agree that "a

brain activity monitor is valuable and should be used to assess intraoperative depth of anesthesia

for all patients." (ld. at 851,854).

Based upon its review of available literature and opinions, the ASA Task Force reached the following conclusion regarding the

assessment of consciousness: "Intraoperative monitoring of depth

of anesthesia, for the purpose of minimizing the occurrence of

awareness, should rely on multiple modalities, including clinical

techniques (e.g., checking for clinical signs such as purposeful or

reflex movement) and conventional monitoring systems (e.g.,

electrocardiogram,

blood pressure, HR, end-tidal anesthetic

analyzer, capnography).

ld at 854.

12

Echoing the ASA's conclusions,the American Associationof Nurse Anesthetists ("AANA") issueda model policy for CRNAsregardingthe "Preventionand Monitoringof UnintendedAwarenessUnder GeneralAnesthesiaw" hich establishetshat "[s]ound clinical judgmenlshouldalwaysbe usedwhen interpretingthe consciousnesmsonitorin conjunction

with other available clinical signs.'" American Association of Nurse Anesthetists, Model Policy

for "Prevention and Management of Unintended Awareness Under General Anesthesia" (Apr. 13, 200':.), available at, http://www.aana.com/News.aspx?ucNavMenu_TSMenuTargetlD=62

&ucNavMenu_TSMenuTargetType=4&ucNavMenu_TSMenulD=6&id=712

(emphasis added).

Further evidence that the BIS monitor should not be the sole method for assessing

anesthetic depth is found in the fact that the BIS monitor is not required by the medically

accepted standard of care for monitoring consciousness with the administration of anesthesia.

(Second 13oysen Aft. at ¶ 3; Third Heath Aft. at ¶ 6; Third Maree Aff. at ¶ 8.) Specifically, Dr.

Heath explains that:

a significant controversy exists within the anesthesiology community regarding the utility and efficacy of brain function

monitoring and that use of a BIS monitor is not the standard of

care for anesthesiology practice.

While there arc many

anesthesiologists who use BIS monitors in their clinical practice, there are also many anesthesiologists who do not use BIS monitors and do not believe that these monitors have an important place in

clinical care. Many of my colleagues in the Department of

Anesthesiology at Columbia University Medical Center use BIS

monitors and many do not. Some of the operating rooms at

Columbia are equipped with BIS monitors, or other brain function

monitors, and some operating rooms are not.

(Third Heath Aft. ¶ 6. See also, Third Maree Aft. ¶ 8.)

Likewise, with respect to use of brain function monitoring devices, like the BIS monitor, the ASA's Practice Advisory. tbr Intraoperative Awareness and Brain Function Monitoring

states:

13

Ttle general clinical applicability

of these monitors in the

prevention of intraoperative

awareness has not been established.

Although a single randomized clinical trial reported a decrease in

the frequency

of awareness

in high-risk

patients, there is

insufficient evidence to justify a standard, guideline, or absolute

requirement that these devices be used to reduce the occurrence of

intraoperative

awareness in high-risk patients undergoing general

anesthesia. In addition, there is insufficient evidence to justify a

standard, guideline, or absolute requirement that these devices be

used to reduce the occurrence of intraoperative

awareness for any

other group of patients undergoing general anesthesia .... It is the consensus of the Task Force that brain function monitoring is not

routinely indicated for patients undergoing general anesthesia ....

Anesthesi,_logy,

Vol. 104, No. 4, at 855 (emphasis added). I

Tt.e clear weight of the evidence, when considering the entire record before the district court, est_Lblishes that Defendants' proposed protocol calls for the use of the BIS monitor as the

only indicator of Mr. Brown's level of consciousness

in contravention

of medically accepted

standards for its use. Accordingly, the district court clearly erred in finding that the protocol will

enable Defendants' to verify Mr. Brown's level of consciousness. The district court apparently ignored Aspect's own statement concerning Defendants'

proposed use of Aspect's BIS monitor. Specifically, Scott D. Kelley, M.D., Vice President and

Medical E,irector of Aspect Medical Systems, Inc., and a board certified anesthesiologist

who

practices at Brigham and Women's Hospital, a Harvard Medical School Affiliate, explains that

"[b]oth Aspect and standard anesthesia treatises recommend that medical professionals

integrate

Press releases issued by the ASA in connection with the adoption and publishing of the Practice Advisory stress

the importan:e of direct monitoring of patients by appropriately trained anesthesia professionals. See Press Release, American St_cie .ty of Anesthesiologists, Pre-surgery Communication Comforts and Empowers Patients (Mar. 31,

2006), available at hnp://www.asahq.org/news/asanews040306.htm

("The advisory states that patients should be

monitored with clinical techniques and conventional monitors such as electrocardiograms, vital signs and gas

analyzers. Newer devices called 'brain function monitors' may also be used at the discretion of the individual anesthesiologist."); Press Release, American Society of Anesthesiologists, Report on Awareness Under General

Anesthesia Savs Anesthesiologist Have Multiple Tools and Approaches for Minimizing Risks (Oct. 25, 2005),

available at hitp://www.asahq.org/news/news102505.htm

("[T]he most important monitor in the operating room is

the anesthesiologist, who has 12 years of medical training and a wealth of experience to draw on when deciding

what is apprcpriate for each individual patient.").

14

the BIS monitoring with their own direct observation of the patient (along with traditional monitoring - i.e. blood pressure, heart rate, respiratory rate, etc.)" (Kelley Aft. ¶ 18.) However, as Dr. Kelley notes, "[t]he Defendants' Notice and Response and the supporting Affidavits indicate Ihat the 'licensed registered nurse' and the ' licensed physician' will be at a remote location fi'om the Plaintiff and may be relying excessively - or even solely - on the BIS monitor readings rather than clinical observations. ''2 (ld. ¶ 19.)
lnzlecd, Ms. Maree, based on her tour of the execution chamber, observation room, and

witness room, identified barriers to employing the multiple modalities that are medically

necessary for assessing anesthesia. (First Maree Aff. _[_18,10.) Specifically, she states:

In my professional opinion, the setup of the execution chamber renders it impossible for the personnel administering the anesthesia to the inmate to identify and remedy possible problems with its

administration.

Specifically, the presence of the curtain between

the inmate and the execution personnel blocks visual access to the

site of the IV. One possible complication that arises when

attempting to administer a large volume of intravenous fluids in a short amount of time is that a vein may rupture. This results in the

fluid remaining in the tissue rather than circulating through the bloodstream. Without visual access to the 1V sites, the execution

personnel would not know if this complication occurred.

(ld ¶ 8.) .Likewise, Ms. Marce describes the barriers to direct monitoring of consciousness from

the observation room where Defendants propose to place the BIS monitor as well as from the

witness room as follows:

Finally, after touring the execution chamber, it is my opinion that neither Warden Polk, nor any other member of the execution team, can observe an abnormality or malfunction in, the lethal injection process and halt the execution. While I do not know where Warden Polk is physically located during the execution, I do know that he cannot be everywhere that he would need to be in order to identify a problem. If he is located in th+ chamber behind the curtains with the executioners, he cannot see;the IV site and cannot
!J 2 It bears not,"that had Dr. Kelley known the Defendants' true purpose for purchasing the BIS monitor, he would have acted to prevent the sale. (Kelley Aff. ¶ 22.)

15

identifyproblemsthere. If he is in the observationroom,he can seeat bestonlytheheadof theinmate,andcannotseetheinmate's
right arm or the lines andotherequipmenat dministeringthe IV fluids. If he is in the witnessroom,he is not closeenoughfor a meaningfuvl iewof theinmate'sarm,nordoeshehavethemedical trainingto identifya problemwith theIV site. Nor canheseethe otherequipment.Indeedt,hereis no onepersonwhocanseethe IV site,theinmate,andtheIV linesandotherequipmenta, swould
benecessartyo safelyinduceandmonitoran appropriateplaneof
anesthesia.

(ld. ¶ 10.) There is no evidence that Defendants' proposed protocol will address these visual

barriers to proper assessment of Mr. Brown's level of consciousness.

B.

Rcsponse to Consciousness.

In addition to the district court's erroneous finding that the Defendants' addition ofa BIS

monitor will verify Mr. Brown's level of consciousness, the district court's finding concerning

the effica_:y of Defendants' proposed response in the event that the BIS monitor does not reflect

an adequate level of unconsciousness is contrary to the clear weight of the evidence before the

district court. As now proposed, if anesthesia is improperly administered by the execution team

such that the reading on the BIS monitor fails to fall below an appropriate level, the only

response called for under the Defendants' protocol is for the non-medical personnel

administering the sodium pentothal to administer more. However, this single response fails to

address arty of the concerns raised by Ms. Maree, outlined above, concerning the manner in which the anesthetic is administered. (See also, First Heath Aft. ¶ 30.) Ms. Maree observed that:

nothing in the Notice or the Affidavits address my. concerns
regarding the maintenance of the integrity of the IV sites throughout the administration of the drugs.. An infiltration is not always obvious. No steps have been taken to monitor IV sites for infiltration or to identify what will be done in the event that infiltration occurs.

16

(Third MareeAft. ¶[ 11.) Quite to the contrary,the only evidencebeforethe district court concerningDefendantsp' roposedresponseto a BIS monitorreadingindicatinganinappropriate level of consciousnesiss for the samenon-medicalpersonnelto continueadministering anestheti.:p,resumablyusingthe sameimpropertechniqueasndrepeatingthesameerrorsthat leadto theinitial failedadministration.
F:nally,thedistrictcourt'sfindingthatDefendantsp'rotocolcontemplateusseof theBIS monitori:o verify Mr. Brown's level of consciousnesast the time that potassiumchlorideis administeredis not supportedby the evidence. (17 April 2006Orderat 6.) As setout by WardenPolk,the proposedprotocolonly indicatesthatthe BIS monitorwill be readafterthe administrationof theinitial 3000nagdoseof sodiumpentothaal ndbeforetheadministratioonf pancuroniumbromide. (SecondPolk Aft. '][6.4.) As describedby WardenPolk,this protocol includesno provisionfor further readingsof the BIS monitor after administrationof the pancuroniumbromideandbeforethepotassiumchloride. Further,it givesno indicationhow,or in factwhethere, xecutionpersonnewl ouldrespondif theBISmonitordisplayeda readingabove "60" duri:agthelaterstagesof theexecution.
Thereforet,hedistrictcourt'sfinding that theDefendantsr'evisedprotocolprovidedfor constituti,mallysufficientverificationof Mr. Brown'slevelof unconsciousneasnsdresponsteo a potentialstateof eonsciousncsis clearly erroneousas it is not supportedby substantial evidenced, isregardedsubstantiael videncethat would militatea conclusionto the contrary, and/oris actuallycontraryto the clearweightof the evidenceconsideredin light of theentire recordin thisaction. Accordinglyt,his findingshouldbesetasideandthisCourtshouldfind the districtcourtabuseditsdiscretionin denyingtheequitablereliefsoughtby Mr. Brown.
17

I1. The District Court Abused Its Discretion By Denying Preliminary Injunctive Relief
Based on Clearly Erroneous Findings of Fact Concerning the Training of the Execution Team.

With respect to the training of the individuals charged under the Defendants' new

protocol with reading and responding to the data provided by the BIS monitor, the district court tbund:

The court is also satisfied that the licensed registered nurse and licensed physician used by defendants in plaintiff's execution will be satisfactorily trained and fully capable of reading the BIS monitor and responding appropriately to the data they receive.

(17 April 2006 Order at 5.) This finding is not supported by substantial evidence in the record,

disregard:; substantial evidence that militates a contrary conclusion, and is contrary to the clear

weight of the evidence in the record. The district court clearly erred in making this finding of

fact and its reliance on this finding in denying Mr. Brown preliminary injunctive relief was an abuse of the district court's discretion.

A.

Training and Experience Required to Induce and Maintain an Adequate Plane of

Anesthesia.

Tl:,ere is anaple evidence in the record that extensive and specialized training is required in North Carolina, and in the United States generally, to induce and monitor an appropriate

plane of anesthesia:

[T]he provision of anesthetic care is performed only by personnel with advanced training in the medical subsp'ecialty of

Anesthesiology.

This is because the administration of anesthetic i

care is complex and risky, and can only be safely performed by

individuals who have completed the extensive requisite training

to permit them to provide anesthesia services.

([First] H,;ath Aft. ¶l 32.) Moreover, the record provides that the assessment of aesthetic depth and the

correspon,:ling maintenance of that state is both medical science and "art." (Third Heath Aft.

18

¶ 9.) "This specialized skill is acquired through both extensive education and hands-on

experience:

"lG]encral anesthesia is administered by physicians who have completed

r_:sidency training in the specialty of Anesthesiology,

and by CRNAs.

Physicians and nurses who have not completed the requisite training to

b,:come anesthesiologists

or CRNAs are not permitted to provide general

anesthesia. It is critical to understand that the great majority of physicians

and nurses and other health care professionals do not possess the requisite

training, skills, experience, and credentials to provide general anesthesia ....

Conversely, a physician who is not an anesthesiologist or a nurse who is not a

CRNA should not be permitted to provide general anesthesia within the prison

(or anywhere else in North Carolina)."

([First] Heath Aft. ¶l 33.) With respect to procedures like lethal injection, which require deep

sedation or general anesthesia, the North Carolina Medical Board has stated that "[a]nesthesia

should be administered by an anesthesiologist or a CRNA supervised by a physician. The

physician who performs the surgical or special procedure should not administer the anesthesia.

The anesthesia provider should not be otherwise involved in the surgical or special procedure."

(ld. ¶ 34.)

B.

The District Court's Finding of Training and Experience.

The district court expressly stated that it was satisfied that the registered nurse and

physician used by Defendants "will be satisfactorily trained" to read the BIS monitor and capable

of "respotding appropriately to the data they receive." (17 April 2006 Order at 5 (emphasis

added).). Xespectfully, there is no evidence of the training that the registered nurse or physician

will receive with regard to the BIS monitor. Moreover, by couching its finding in the future

tense, the district court acknowledged that the record contained no information regarding the

present tra: ning of such personnel in the use of the BIS monitor. The Notice Defendants filed with the district court simply states that the execution

protocol has been revised to include the use of the BIS monitor to "measure the Plaintiff's level

19

of consciousness.("Defs.' Noticeat 2.) This revisioncalls for the attachmenot f the B1S monitorlo the Mr. Brown, andthe operationand interpretationof the monitorby a licensed registerednurseand licensedphysicianfrom an observationroom adjacento the execution chamber,fDefs.' Noticeat 2; SecondPolkAft. ¶ 6.) However,theonly evidencesuggesting that merelicensureasa registerednurseor physicianenablestheseindividualsto operateand interpretlhe BIS monitoris a statemenbty Dr. DershwitzthattheBIS monitorcanbeoperated andthe valuesobtainedr,ecordeda, ndinterpretedby a registerednurse.(Third DershwitzAff. ¶ 8.) Dr. S)ershwitz does not explain the factual basis for this statement.
Te the contrary, a CRNA with extensive experience in the teaching of nurses has stated that proper use of a BIS monitor requires education, training, and experience in anesthetic care as well as proper training and experience in the use of the BIS monitor. (Third Maree Aff. ¶ 9.) Suuilarly, two practicing clinical anesthesiologists have explained that additional, specialized training is required for propcr use of the BIS monitor while inducing anesthesia: "'The use of the BIS monitor requires an understanding of its role in making clinical decisions and integration of the data plovided with all other available sources of clinical information" by an anesthesiologist or CRNA. (Second Boysen Aff. ¶ 4.) "IT]he clinical utility of the BIS monitor for anesthesiologists derives, in significant part, from spending many hours personally observing the readouts of the BIS monitor in conjunction with the continuous real-time flow of multiple modalities of observation and diagnostic information and information from othcr monitoring devices." IThird Heath Aft'. ¶ 10.)
The evidence in the record before the district court included guidelines also issued by the ASA and AANA and the considerations for use distributed by the manufacturer of the device. Each of th(:se authorities state that additional and specific training is required for the clinical use
20

of the BIISmonitor. ScottM. Kelley,M.D., a board-certifiedanesthesiologisatndthe Vice Presidenat ndMedicalDirectorof AspectMedicalSystemsI,nc. ("Aspect"),the makerof the BIS monitoringtechnologys, tatedthat the BIS monitor"is intendedfor useunderthe direct supervisionof a licensedhealthcarepractitioneror by personnetlrainedin its properuse." (Kelley Aff. *[[12.) Dr. Kelley alsoexpresseAdspect'sspecificconcernthatthe Defendants' proposeduseof the BIS monitormay resultin its operation"by personslackingappropriate training." (ld ¶121.)
Further,in October2005,the ASA approveda "PracticeAdvisory for Intraopcrative Awarenessand Brain FunctionMonitoring," which specificallyevaluatedthe useof brain functionmonitoringtechnologys,uchasBIS monitorsa, ndofferedguidanceregardingtheuseof thesedevices.Thisdocumenitncludednumeroustatementtshat refuteDefendantsp' roposatlo usethe BIS monitorwithoutinterpretationby personnewl ith appropriatetrainingin anesthesia.
See Practice Advisory for lntraoperative Awareness and Brain Function Monitoring, Anesthesielog3.,, Vol. 104, No. 4, 847, 851, 854 (Apr. 2006) (attached as Ex. I to Third Heath Aft.). Th,:se conclusions are echoed by the AANA, which issued a model policy for CRNAs regarding _:he "Prevention and Monitoring of Unintended Awareness Under General Anesthesia." This modc:l policy requires "[t]he Department of Anesthesiology [to] provide and document training of individual anesthesia providers on the consciousness monitoring system prior to clinical use" and emphasizes that "[s]ound clinical judgment should always be used when interpreting the consciousness monitor in conjunction with other available clinical signs." American Association of Nurse Anesthetists, Model Policy for "Prevention and Management of Unintended Awareness Under General Anesthesia" (Apr. 13, 2005), available at.
21

http://www.aana.com/News.aspx?ucNavMenu_TSMenuTargetlD=62&ucNavMenu_TSMenu

TargetType=4&ucNavMenu_TSMenulD=6&id=712;

(see also Third Maree Aff. ¶ 6.)

Equally important, however, is the fact that the record is completely devoid of any

evidence that the registered nurse or physician are capable of "responding appropriately" to the

data generated by the BIS monitor. Presumably, this statement by the district court was referring

to the possibility that the Mr. Brown may require further anesthesia. As discussed above in

Section II.A, there is ample evidence from experts in the field of anesthesia, that only persons

with that specialized training, well beyond that of licensed physicians and registered nurses, are

qualified :o induce or maintain a plane of anesthesia. There is no evidence in the record that the

registered nurse or licensed physician employed by Defendants have the requisite training or

experience. • to induce and maintain a plane of anesthesia sufficient to ensure the humaneness of Mr. Brown's execution. As stated by Dr. Heath, "[a] physician, registered nurse, or any person,

who lacks; extensive hands-on clinical immersive formal training in the art and science of

assessing and maintaining anesthetic depth cannot possibly meet any reasonable standard of care,

regardless of whether or not a BIS monitor is available." (Third Heath Aft. ¶ 13.) Th,._refore, it is clear that the district court's finding that the registered nurse and

physician used by Defendants "'will be satisfactorily trained" to read the BIS monitor and capable

of "responding appropriately to the data they receive" is not supported by substantial evidence,

disregards substantial evidence that militates a contrary conclusion and is contrary to the clear

weight oflhe evidence in the record.

C.

District Court's Finding, of Ethical Conflict.

To the extent the district court based its determination on a finding that Mr. Brown was

attempting "to force a conflict of medical ethics by taking the issue of the positioning of medical

22

professionalisn andaroundthe executionchambera, nddressingit in constitutionacl lothes;" (17 April 2006Orderat4-5), sucha findingwasclearlyerroneouass it is contraryto therecord in thecase.Theonlyevidencein therecordbeforethedistrictcourtregardinganysuchconflict, to the extentit exists,doesnot suggesitt presentsanyproblemfor the Defendants.Theonly statemenat ddressingthis issueprovidesthat "WardenPolk would not encountesr ignificant difficulty in recruitingandcontractingfor anadequateltyrainedphysicianto providethegeneral anestheticthat necessarilymust precedethe administrationof sodium thiopentaland pancuroniumbromide." ([First] HeathAft. ¶ 43.) Therewasabsolutelyno evidencethatthe protocol.,.ought by the Mr. Brown would present any ethical "conflict" which would result in
Defendan:s being unable to recruit or contract personnel with the requisite training. Moreover, the Defendants have never suggested or argued that they have been, or would
be, unable to locate a medical professional with adequate training to personally induce, monitor, and maintain the requisite plane of anesthesia as is both necessary and required to protect Mr. Brown's (:onstitutional rights. Further, the Defendants' ability to employ a licensed physician and regist,;red nurse to observe the BIS monitor actually suggests that no such ethical "conflict" exists. This physician and nurse are subject to the same ethical constraints as a medical professional with credentialed, licensed, and proficient in the field of anesthesiology. Moreover, long befole the filing of Mr. Brown's Amended Complaint, a physician has been present in the observation room to read the heart monitor and possibly to pronounce death. (Polk Dep. pp. 113-14; Defs.' Notice at 3.) As such, it is not certain what "conflict of medical ethics" was referred tc, by the district court; however, to the extent it was relied upon, such reliance was clearly err,)neous.
i
II
23

D. District Court's Finding Regarding More Specific Information.
"lhe district court found that there was "no reasonable basis for plaintiff to demand more specific :nformation than" the Defendants' plan to use a licensed registered nurse and a licensed physician, particularly in light of the need "to maintain the confidentiality of the identities of medical personnel who participate in executions." (17 April 2006 Order at 5.) However, nearly in the same breath, the Court stated that it was satisfied that the registered nurse and physician "'will be ,',atisfactorily trained" to operate and interpret the BIS monitor. (Id.)
It is difficult to imagine that the physician and registered nurse "will be satisfactorily trained" when no such training was a part of the revised protocol submitted by the Defendants. However. the district court's verb tense seems to concede, as multiple experts have opined, that such specific training is required to operate and interpret the BIS monitor. And yet, the district court found a demand to disclose more specific information about the training by, or qualification of, the physician and registered nurse unreasonable.
If the district court's basis for denying access to this information rests on the need to maintain the confidentiality of the identities of the medical personnel taking part in the execution, it is important to note that Mr. Brown has never sought, or argued it was reasonable, to reveal :he names or personal identification information of these medical professionals. (Am. Compl. ¶ 5 ("[I]t is Plaintiff's understanding that Defendants' will not reveal the identities of these per,.;ons.").) Mr. Brown has only sought, and continues to only seek, the objective qualificat:.ons and training of the medical professionals taking part in his execution to ensure that he will not consciously suffer excruciating pain in violation of his Eight Amendment rights. Therefore, to the extent the district court relied upon the finding that Mr. Brown's request for more specific information regarding the training and qualifications of the medical professionals
24

participa_:ining hisexecutionwasunreasonablteh,attoowasclearlyerroneouasndnot supported by there,zordin thisaction. Ill. The District Court AbusedIts DiscretionByDenyingPreliminary Injunctive Relief
Based on Clearly Erroneous Findings of Fact Concerning the Reliability of the BIS l_lonitor. The district court found as fact that:
Whatever concerns might be raised about this 'machine,' or about the propriety of using it in executions, it is apparent to this court that the BIS monitor has been used reliability for a decade and is used in many anesthesia procedures across the country to determine an individual's lcvel of consciousness.
(17 April 2006 Order at 6.) This finding is clearly erroneous in light of overwhelming evidence in the record, completely disregarded by the district court, demonstrating that the BIS monitor, used in the manner intended by Defendants, cannot be relied upon to definitely determine a
patient's level of consciousness. As previously discussed, the evidence before the district court uniformly stresses the need for appropriately trained medical personnel to exercise clinical judgment in interpreting the BIS monitor in conjunction with other observation and diagnostic modalities. (See e.g., Third Heath Aft. ¶¶ 7-9; Second Boysen Aft. ¶¶ 4-5; Third Maree Aft. ¶ 7; Kelley Aft. ¶ 15.) Such cautions are based upon an appreciation of the limitations of the BIS monitor and are intended to enhance the reliability of the assessment. The determination of the
district coJrt that the BIS monitor can be expected to function reliably without such safeguards
finds no support in the record and is thus clearly erroneous. With its statement deriding "whatever concerns might be raised" about the monitor and
the propriety of using it in the manner proposed, the district court glosses over and disregards substantial evidence, unrebutted by Defendants, calling into question the reliability of the B1S
I
monitor as the sole means of assessing consciousness. In fact, a recent study specifically found
it
25

that"[a]r_esthespiarovidersshouldnotrely exclusivelyon theBISmonitorwhenassessindgepth of anesthesia."Niedhart,DagmarJ., et al., "IntraoperativeReproducibilityof the BISxp® Monitor,"Anesthesiology, Vol. 104, No. 2, 242 (Feb. 2006) (attached as Ex. 2 to Third Heath

Aft.). Researchers applied two BIS electrode strips to the forehead of the same patient and

compared the results for consistency.

Considering only those readings "that differed

uninterruptedly for at least 30 s[econds]," the study found that "10.7% of the time, the BISxp®

devices ,,.uggested different anesthetic planes from each other, which would suggest different

anestheti,; management." ld. at 247-48. With respect to the reliability of the BIS monitor as a

monitor of anesthetic depth, the authors concluded:

In summary, the results of this study suggest that the BISxp® does

not consistently display intrapatient reproducibility. These results are at variance with the manufacturer's claim that the BIS®

monitor provides a reproducible and "reliable single number that

represents each patient's level of consciousness."

The results of

this study reinforce the sentiment expressed on the Aspect Medical

Web site: "Clinical judgment should always be used when

interpreting the BIS in conjunction with other available clinical

signs. Reliance on the BIS alone for intraoperative anesthetic

management is not recommended."

ld at 24_;; (see also Third Heath Aft. _118).

The district court also failed to address Mr. Brown's evidence that that nature of the

chemicals used in Defendants' lethal injection protocol impair the reliability of the BIS monitor

as a means of assessing Mr. Brown's level of consciousness throughout his execution. As

explained by Dr. Heath, the BIS monitor "'is like all medical instruments in that it is subject to artifactual interference." (Third Heath Aft. ¶ 24.) One study relied upon by Dr. Heath found

that when subjects were administered a neuromuscular blocking agent, the same category of

chemical as the pancuronium bromide included in Defendants' execution protocol, the value

displayed by the BIS monitor decreased to levels as low as 33, d_spite the fact that no anesthetic

26

drugswereadministeredandthe subjectsremainefdidly conscious throughout the experiment.
Messner: M., et al., "The Bispectral Index Declines During Neuromuscular Block in Fully

Awake F'atients," Anesthesia & Analgesia, 2003; 97:488-91 (attached as Ex. 5 to Third Heath

Aff.). These results support Dr. Heath's conclusion that "[i]n some cases a BIS monitor can

indicate _ deep plane or level of anesthesia when in fact the patient is demonstrably fully awake,

aware, and conscious." (Third Heath Aft. ¶ 24; see also Second Boysen Aft. ¶ 7 ("I am aware of

reported instances of patients regaining consciousness or awareness while using the BIS monitor

as one modality to monitor the "plane of anesthesia."); Third Maree Aft. ¶ 10 ("The BIS monitor

does not always give a rcliable reading.").) There was no evidence before the district court to

counter this showing of unreliability. Furthermore, the district court's 17 April 2006 Order fails to even acknowledge the

evidence :;ubmitted by Mr. Brown that Defendants' own expert, the only person who appears to advocate 1he use of the BIS monitor in the manner proposed, has expressed concerns about the

efficacy a_ad reliability of the monitor in this context. As recently as February of this year, Dr.

Dershwitz cautioned against the use of a BIS monitor to measure level of consciousness during

executions by lethal injection: "The administration of a large does of potassium chloride will

cause wide.spread depolarization (biologically-generated

electrical signals) throughout the body.

I predict that the BIS monitor would be unable to assess the level of consciousness following

potassium chloride administration."

(Dershwitz Rebuttal Report, Walker v. Johnson, No.

1:05cv934. at 4-5 (E.D. Va. Feb. 3, 2006) (attached as Ex. B to Pl.'s Objection).) Significantly,

Dr. Dershwitz also opined that "[i]t would be possible to test my hypothesis in an anesthetized

animal. Prior to such an experinaent being performed, however, it would not be prudent to

recommen_l the use of the BIS monitor during lethal injections." (ld. at 5 (emphasis added).)

27

Thesestatementscall into questionDefendantsc' laim thata BIS monitor,usedas the sole measureof consciousness in protocol, can reliably "prevent the possibility of the inmate

being awake during the administration of the pancuronium or potassium chloride." (Third Dershwitz Aft'. ¶ 11.) In making this assertion, Dr. Dershwitz does not indicate that there has been any testing of the machine, as he specifically recommended, to establish its efficacy and reliability under the conditions Defendants propose. The inconsistent opinions of Defendants' only expert witness only underscore that the clear weight of the evidence before the district court established that the addition of a BIS monitor as the only measure of consciousness, divorced

from any direct monitoring or clinician judgment by a medical professional, does not mitigate Mr. Brown's substantial concerns that anesthesia will not be properly administered under

Defendanls' protocol, resulting in needless suffering during the execution. The record contains no evidence to dispute Mr. Brown's evidence "that currently there

exists no single device that provides a fully reliable and accurate 'readout' of the level of consciousness or anesthetic plane." (Third Heath Aft. ¶ 24.) Instead, it is virtually universally

acknowle6ged that neither the BIS monitor, nor any other device, can substitute for the skill, judgment, and experience of appropriately trained medical personnel. (ld. at ¶¶ 8, 9, 15.) See also Press Release, American Society of Ancsthesiologists, Report on Awareness Under General Anesthesia Says Anesthesiologists Have Multiple Tools and Approaches for Minimizing Risks

(Oct. 25, 2005), available at http://www.asahq.org/news/news102505.htm

("[T]he most

important :alonitor in the operating room is the anesthesiologist, who has 12 years of medical

training and a wealth of experience to draw on when deciding what is appropriate for cach individual patient."). The opinions of Mr. Brown's experts are also consistent with and informed

by standards of care in North Carolina. Specifically, Dr. Heath're'fers to a news article stating: !I

28

"When t,31daboutthe state'sproposalD, r. RichardPollardof Charlotte,presidenot f the N.C. Societyc,fAnesthesiologislta,ughedout loud... Thesemonitorscannotguarantetehata patient is asleep."AndreaWeigl,News &Observer, "'Prisons offer machine as monitor; Officials hope a

judge's order concerning lethal injection will be satisfied" (Apr. 13, 2006) (attached as Ex. 3 to

Third Heath Aft.). Finally, the district court's determination that "the BIS monitor has been used reliably for

a decade" ignores the undisputed evidcnce that the manufacturer of this monitor expressly

disclaims the level of certainty suggested by the court. The Operating Manual that is shipped by

the manu:?acturer with each BIS monitor includes an explicit warning about the "potential false

readings, which: 'may be caused by poor skin contact .... muscle activity or rigidity, head and

body motion, sustained eye movements, improper sensor placement and unusual or excessive

electrical interference.'"

(Kelley Aff. ¶ 14.) For this reason, Aspect repeatedly stresses that

Clinical judgment should always be used when interpreting the BIS in conjunction with other

available clinical signs. Reliance on the BIS alone for intraoperative anesthetic management

is not recommended."

(ld. at 15; "Considerations

for Using BIS," available at

http://wwxv.aspectmedical.com/resourccs/proc_cards/or/componentsanesthesia.htm;

"BIS Vista

Monitoring System Operating Manual" at iii, available at http://inservice.aspectmedical.

corn/vista/alanual/manual.pd

f.)

In :;urn, record viewed in its entirety, provides no support for the finding made by district

court rega::ding reliability of the BIS monitor under conditions proposed by Defendants. In

arriving at this determination, the district court disregard the substantial, and indeed

uncontrove rted, evidence that weighed in favor of a contrary conclusion.

29

CONCLUSION
In conclusion, the district court abused its discretion by denying preliminary injunctive relief based on clearly erroneous findings of fact concerning the ability to verify and respond to
appellant's level of consciousness, the training of the execution team, and the reliability of the BIS moldtor. The district court's findings concerning the Defendant's proposed protocol should be set aside because they demonstrate complete disregard for Mr. Brown's substantial evidence
concerning the inadequacies of the proposcd protocol. The clear wcight of this evidence, when considered in light of the entire record, is contrary to the district court's refusal to grant equitable relief and requires the issuance of a preliminary injunction. The district court's conclusion that the proposed revision now tips the balance of hardships against the issuance of equitable relief is not supported by the findings of fact, nor could the district court make such findings of facts on the record before it. The district court's refusal to grant preliminary injunction is an abuse of its discretion.
Therefore, Mr. Brown requests that the Court reverse the district court's decision and remand with instructions to issue a preliminary injunction enjoining Defendants from using their
inadeqmtte proposed anesthesia protocol in the course of Mr. Brown's execution. Eespectfully submitted this the 18th day of April 2006.
/s/J. Donald Cowawn, Jr. J. Donald Cowan, J_. N.C. State Bar No. 0968
i
Attorney for Plaintiff SMITH MOORE LLP Post Office Box 21927 Greensboro, NC 27420 Telephone: (336) 378-5200 Telecopier: (336) 378-5400 Email: don.cowan@smithmoorelaw.com
30

/s/Laura M. Loyek Laura M. Loyek N.C. State Bar No. 28708 Attorney for Plaintiff SMITH MOORE LLP Post Office Box 27525 Raleigh, NC 27611 Telephone: (919) 755-8700 Telecopier: (919) 755-8800 Email: laura.loyek@smithmoorelaw.com
31

CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing BRIEF OF APPELLANT was served upon Defendants by electronic transmission to the following counsel:

Thomas J. Pitman, Special Deputy Attomey General James P. Smith, Special Counsel (jpsmith@ncdoj.com) North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602-0629

(tpitman@ncdoj.com)

T.ais the 18th day of April, 2006.

Laura M. Loyek Attorney for Plaintiff

32

 
 RECORD NO. 06-9

UNITED

In The

STATES

COURT

OF APPEALS

Fop" The Fourth Circuit

WILLIE BROWN, JR.,

FILED

Plaintiff-Appellant,

APR 1 8 2006

V.

THEODIS BECK, Secretary,

North Carolina Department

of Correction,

and

MARVIN POLK, Warden, Central Prison,

Raleigh, North Carolina,

U.S. Cour{ of App¢_=ls Fuurth Circuit

Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA AT RALEIGH

BRIEF OF THE APPELLEES

OPPOSING

APPELLANT'S

MOTION FOR PRELIMINARY

INJUNCTION

Thomas J. Pitman North Carolina Department
of Justice Post Offic,_ Box 629 Raleigh, NC 27602-0629 Telephone: (919) 716-6529 Facsimile: (919) 716-6560
Counsel for Appellees

James Peeler Smith North Carolina Department
&Justice Post Office Box 629 Raleigh, NC 27602-0629 Telephone: (919) 716-6543 Facsimile: (919) 716-6561
Counsel for Appellees

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

Al:pellant Willie Brown, Jr. initiated this action in the United States District Court for the Eastern District of North Carolina pursuant to 42 U.S.C. §1983, asserting federal question jurisdictioa under 28 U.S.C. §§ 1331, 1343, 2201,and2202. Jurisdiction for this appeal is pursuant to 28 U.S.C. § 1292(a)(1), which authorizes this Court to review the denial of a motion for preliminary injunction by a district court of the United States. This Court has recognized its jurisdictio_a to "review the grant or denial of a preliminary injunction for abuse of discretion, recognizing that 'preliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.'" Microstrategyh_c. v. Motorola, hlc.. 245 F.3d 335,339 (4 'hCir. 2001 ), quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 816 (4th Cir. 1992)(internal quotation marks omitted).
STATEMENT OF THE ISSUES

I.

This Appeal Should Be Dismissed Because Appellant Failed to Exhaust His Available

Ad,.-ninistrative Remedies Prior to Filing His Complaint, and His Amended Complaint

Related Back to the Date of Filing of His Complaint.

If.

This Court Should Deny Appellant's Motion for Preliminary Injunction Because it Is Not

Likely That Appellant Will Succeed on the Merits of His Claim or That He Will Suffer

Harm. On the Other Hand, the Equities Weigh Heavily in Appellees' Favor Because

Un. ustified Delay in the Administration of a Capital Sentence Is Harmful to the Public,

Whose interest Is in the Fair, but Expeditious, Rendering of Justice.

STATEMENT OF THE CASE

Appellant Willie Brown, Jr. ("Appellant") is scheduled for execution on 21 April 2006. On 27 February 2006, Appellant initiated this action by filing a Complaint ("Complaint") in the United States Dis:rict Court for the Eastern District of North Carolina ("District Court") seeking a

permanent injunction barring Appellees Theodis Beck, Secretary of North Carolina Department of

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Correctiona. ndMarvinPolk,Wardenof Central Prison, ("Appellees") from executing him using
an "inadequate protocol for inducing and maintaining anesthesia," a declaratory judgment that

Appellees' "inadequate anesthesia protocol" would violate the Eighth Amendment prohibition against cruel and unusual punishment, and an award of reasonable attorney fees and costs. On 8 March 2006, following the denial of Appellant's grievance by the Inmate Grievance Resolution

Board on 7 March 2006, Appellant filed his Amended Complaint ("Amended Complaint").

Appellant' ; Amended Complaint modified paragraph 6 in which he acknowledged that he had not fully exhausted his available administrative remedies prior to filing his Complaint. No other changes

were evid_:nt in his Amended Complaint. On 17 April 2006, the District Court, the Honorable

Malcolm J. Howard, following a hearing on 6 April 2006 and additional submissions by the parties, entered an Order ("Order") denying Appellant's Motion for Preliminary for Preliminary Injunction.

Appellant filed a timely notice of appeal. ARGUMENT

1.

Appellant's Appeal Should Be Dismissed Because Appellant Failed to Exhaust

Hi,: Available Administrative Remedies Prior to Filing His Complaint, and His

Amended Complaint Related Back to the Date of Filing of His Complaint.

Appellant's Motion for Emergency Stay of Execution should be dismissed because Appellant

has not complied with the requirements of the Prison Litigation Reform Act by exhausting his

available _tdministrative remedies prior to filing his Complaint and his filing of an Amended

Complaint does not cure this defect. Appellant's Amended Complaint relates back to the date of his 27 February 2006 Complaint,

prior to his fully exhausting his available administrative remedies on 7 March 2006. "An

anaendment of a pleading relates back to the date of the original pleading when.., the claim...

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assertedin theamendedpleadingaroseout of theconductt,ransactiono,r occurrencseetforthor attemptedtobesetforthin theoriginalpleading."Fed.RuleCir. Proc.15(c)(2)(2005)R. elation backdeper_dosntheexistencoef acommon"coreof operativefacts"unitingtheoriginalandnewly assertedclaims. Clipper Exxpress v. Roc&w Mountain Motor Tar!ff Bureau, Inc., 690 F.2d 1240,
1246, 1259, n. 29 (9 'h Cir. 1982). The conduct, transaction, or occurrence defining Appellant's

claims for relief in his Complaint were identical to those defining his claims for relief in his Amended Complaint save for his failure to fully exhaust, rather than effectively exhaust, his available administra_:ive remedies.

The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997c(a) to

require a prisoner to exhaust available administrative remedies before filing a conditions-ofconfinement suit. Booth v. Churcher, 532 U.S. 731, 733-34 (2001). Section 1997e(a) makes

exhaustion of claims mandatory for all inmate suits about prison conditions, Porter v. Nussel, 534 U.S. 516, .' 14, 532. (2002). The PLRA applies with equal force to execution challenges as to any

other prisoner § 1983 actions challenging conditions of confinement. Nelson v. Campbell, 541 U.S. 637,650 (2004). There is no "futility" exception. Masse), v. Wheeler, 221 F.3d 1030, 1034 (Tth Cir.

2004). In 4nderson v. XYZ Correctional Health Services, 407 F.3d 674 (4 'hCir. 2005), this Court

said the following:

The, re is no doubt that the PLRA's exhaustion requirement is mandatory. See Porter [v.

Nu::sle, 534 U.S. 516,] 524 ("Once within the discretion of the district court, exhaustion in

cases covered by § 1997e(a) is now mandatory. All available remedies must now be

exhausted; those remedies need not meet federal standards, nor must they be plain, speedy,

and. effective. Even when the prisoner seeks relief not available in grievance proceedings,

notably money damages, exhaustion is a prerequisite to suit." (citations and internal

quotation marks omitted)).

The question we must answer is whether this

exl: austion-of-remedies requirement is a pleading requirement as well, such that a complaint

is subject to dismissal if it fails to include an allegation that the inmate has exhausted his

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administrativeremedies.
/d. at 677 (emphasis added.) This Court held exhaustion is not a pleading requirement, but dismissal is mandatery when the defendant has pleaded and proved failure to exhaust. /d. at 683. Appellant acknowledges that he filed his internal grievance, the initial step toward exhausting his available administrative remedies, but filed this action prior to final administrative action being taken on his grievance by the inmate Grievance Resolution Board. (Amended Compl. '[16.) The District Court denied Appellees' motion to dismiss, holding that with the filing o fAppellant's Amended Complaint on 8 Marcia 2006, following the decision of the Inmate Grievance Resolution Board on 7 March 2006, he had exhausted his administrative remedies.
The decision of the District Court is contrary to the plain language of Rule 15(c)(2) of the Federal Rt.les of Civil Procedure. The general rule of law for the concept of relating back was set down by t_e United States Supreme Court in Baltimore & Ohio Southwestern Railroad Co. v. Carroll, 280 U.S. 491,495-496 (1930), which held that an amended complaint which introduced a new and distinct cause of action did not relate back to the date of the filing of the original complaint so as to avc_id a statute of limitations bar. See Nelson v. Adams USA, bzc., 529 U.S. 460,466 (2000) (Rule 15 i!: clear in its provisions in conveying the circumstances under which a pleading can be amended and directing how litigation will move forward following an amendment.)
Appellant does not deny that he is aware of the Administrative Remedy Procedure ("Procedure") published by the Division of Prisons of the North Carolina Department of Correction?
All inmates are informed of the Proccdure as a matter of routine during initial screening into the Division of Prisons. Also, every inmate has assigned a case manager who can answer questions and assist him or her in following correct procedures should the inmate wish to file a grievance.
-4-

Appelleesattachedacopyof theProceduraesanexhibittotheirmemorandumin supporot fmotion to dismiss.(Memo,pp.8-16.) SectionG.0307(f)of theProcedurseummarizetshefourstepsand associatemd aximumtimelimitsin thestandardgrievanceprocessA. totalof 85daysareprovided for an inmateto receivea decisionalterhis or hergrievanceis formallyacceptedfollowing the standardl:rocess.(ld., p. I 1.)
Appellantrequestedemergencyprocessingof his grievancewithoutstatinga reasonor providinganyjustificationforexpeditedprocessingS. ectionG.0308setsforththe fourbasesfor affordinganinmatetheprivilegeof emergencpyrocessingA. ppellandt oesnotmeetanycriteriafor emergenchFandlingb, utwasaffordedsucha privilegepursuanttosectionG.0308(a)(.ld.,pp. I I-
]2.) Or: 13 February 2006, Appellant submitted his single paged, hand-written grievance pursuant
to the Internal Grievance Procedure of the North Carolina Department of Correction ("NCDOC"). In his statement of grievance, Appellant said "The people who give these injections do not have appropriate qualification, training and experience. The anesthesia procedures used by the prison before execution are not adequate to ensure that I will be unconscious and unable to feel pain when the other drugs are injected." Appellant proposed as the only remedy he believed would resolve his grievance :'that the prison find a different way to carry out my execution by lethal injection that will ensure that I am completely unable to feel pain .... "
Appellant requested emcrgcncy handling of the grievance. Appellant's grievance was received cn 13 February 2006, and screened as accepted on 14 February 2006.
Thc Step One - Unit Response was completed on 22 February 2006 recommending no further action be laken on the grievance. On 23 February 2006, Appellant elected to appeal to Step Two -
-5-

Area/Complex/InstitutioRnesponseT.heStepTworesponsuepheldtheUnit ResponsferomStep Oneon28 February2006. On 1March2006,Appellantelectedtoappeatlo StepThree- Inmate GrievanceResolutionBoard(hereinafte"rBoard"). TheBoardassignedaGrievanceExaminetro investigateAppellant'sconcerns.The BoardconsideredAppellant'sargumentsr,eviewedthe relevantstatutesc,aselaw andprotocolof the Appelleesr,eviewedtheresultsof theGrievance Examiner':;investigationa, ndconcludedthat "thestaff hasadequatelyaddressetdhis inmate's grievanceconcerns... [Y]hisgrievanceis considererdesolvedby DOCstaff." Thegrievancewas dismissedfi,nallyexhaustinAg ppellant'savailableadministrativreemedieosn 7March2006,eight daysafterhe filed his Complaint.
The:failureof the District Courtto enforcethe mandatoryexhaustionrequiremenctould ultimatelyresultin thefurtherwasteof thetimeandresourceosf thefederacl ourtsandoftheparties shoulda fiILadl ecisionin thisactionbereverseodnappeabl ecausoefAppellant'sfailuretoexhaust administraliveremedies. II. This Court Should Deny Appellant's Motion for Preliminary Injunction
Becausethe District Court Correctly Decided It Is Not Likely That Appellant
Will Succeed on the Merits of His Claim or That He Will Suffer Harm. On the Other Hand, the Equities Weigh Heavily in Appellees' Favor Because Unjustified Delay in the Administration of a Capital Sentence Is Harmful to the Public, Whose Interest Is in the Fair, but Expeditious, Rendering of Justice.
The District Court correctly stated the issue before it as follows: "Will the State's execution
protocol ensure that plaintiff is rendered unconscious prior to and throughout the period during which leth_.l drugs are injected into his bloodstream, such that he will be prevented from perceiving
pain during his execution?" (Order, p. 2.) The District Court correctly answered that issue in the affirmative, and denied Appellant's motion for prelinainary injunction. (Order, p. 7.)
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Anactiontoenjoinacapitajludgmendt ulyrendereadndaffirmedbyStateandFederaclourts is notordinarycivil litigationbetweenprivateparties.Indeeda, suittopreventanexecutionis not aroutinecauseof actionpursuantto42U.S.C§. 1983.TheUnitedStatesSupremCe ourtinNelson
v. Campbell. 541 U.S. 637 (2004), noted "the State's significant interest in enforcing its criminal judgments." id. at 650, and emphasized the Prison Litigation Reform Act directs that"'[a] court shall give substantial weight to any adverse impact on . . . the operation of a criminal justice system caused by .:he relief.' 18 U.S.C. § 3626(a)(1) [18 USCS § 3626(a)(1)]; accord, § 3626(a)(2),'" id.
This Court first enunciated in Blaclnvelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 193-96 (4" Cir. 1977) the four-part test for deciding whether to grant or deny a motion for preliminar.f injunction. The familiar elements of the test are
(1) the likelihood of irreparable harm to the [Appellant] if the preliminary injunction is denied, (2) the likelihood of harm to the [Appellees] if the requested relief is granted, (3) the likelihood that the [Appellant] will succeed on the merits, and (4) the public interest. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353,359 (4th Cir. 1991) (citing Blackwelder). Given the State's significant interest in enforcing its capital judgment against Appellant, the District Court correctly focused its attention on the likelihood of irreparable harm to Appellant, not, as Appellmlt urged, on the speculative nature of the alleged harm - the minuscule possibility that if Appellant were not rendered unconsciousness by the administration of sodium pentothal he would suffer a palnful death. That a perfectly pain-free process cannot be conceived and, consequently, there must :xist an exiguous possibility of harm was conceded by Appellees. The issue is, however, not the posyibili O, Appellant might suffer harm as he urged, but the likelihood, i.e., the probabiliO, Appellant will suffer harm. Appellant offered no expert testimony at all on the probability that he
-7-

mightbeconsciouastthetimetheinjectionofpancuroniumbromidebeginsr;atherhisevidencewas entirelydi.:eetedatthepossibilitythatsomemishapin theadministratioonf thesodiumpentothal mightoccurandresultin hisexperiencinpgain.Thetestimonyof Dr.DershwitzandWardenPolk showthat_:helikelihoodof Appellantexperiencinagnypainduringtheexecutionis remotetononexistent.
Appellantofferedthe testimonyof lay witnesseswho badobservedexecutionsof five prisonersE. achof thesewitnessesC,ynthiaF.AdcoekH, eatheWr ells,andKim Stevensh,adserved ascounsetlo oneor moreof theprisonerswhoseexecutionshewitnessed) Eachtestifiedabout

2 The witnesses variously testify to having seen a prisoner "convulsing," trying to communicate but having to stop to catch ills breath, (Adcock Aft. ¶¶ 17, 19), the prisoner's body being "'relentlessly convulsed and contorted," (W ells Aft. ¶ 11), and the prisoner's convulsing, sitting up, and gagging. (Stevens Aft. ¶ 5). Warden Polk did not observe any body movements of the prisoners being executed (Polk Aft. ¶ 16), nor did The (Raleigh) News and Observer reports include similar observations from the five media witness present at each execution.

The following are references to newspaper accounts of executions noted by Appellant's witnesses and of all executions si:ace September, 2004. Except as noted below, in none of the accounts do the articles refer to the appearance of the prisont:r during the execution, lfsuch body movements as described by Appellant's witnesses were apparent, its is likely they would have been described in the newspaper articles.

Pre..2004 Revision Executions described by Appenant's witnesses:

Zan _.Hill, executed August 12, 1998, http://archives.newsbank.eom,

News

Willie Ervin Fisher, executed March 9, 2001, http://arehives.newsbank.com,

Arc]lives.

and Observer Archives. News and Observer

Joseph Timothy Keel, executed November 7, 2003, http://archives.newsbank.com, Archives.

News and Observer

Edward Ernest Hartman, Obs :rver Archives.

executed October 3, 2003, http://archives.newsbank.com,

News and

Joht_ Dennis Daniels, executed Obs,.'rver Archives.

November

14, 2003,

http://archives.newsbank.com,

News and

Post-2004 Revision Executions:

Sammy Crystal Perkins, executed October 8, 2004, http://archivcs.ncwsbank.com,

News and Observer

Archives. ["Compared to previous executions l've witnessed, Mr. Perkins went into a deep sleep very

quickly. [There Frank Chandler, Archives.

was] no convulsing." executed November

David Crabtree, WRAL News.) 12, 2004, http://archives.newsbank.com,

News and Observer

William Dillard Powell, executed M arch 1I, 2005, http://archives.newsbank.com, Archives.

News and Observer

Ear_ Richmond, executed M ay 6, 2005, http:l/arehives.newsbank.eom,

News and Observer Archives.

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executiont:h; attookplacebefore the revision of the execution protocol in September 2004. None
of Appellmt's witnesses testifies to having observed an execution later than November 2003. Therefore: it is presumed that Appellant had no evidence of prisoner body movements in executions after the 2004 protocol revision.
Or the basis of the extremely remote chance that Appellant may not be fully unconscious before the injcction of pancuronium bromide or potassium chloride, he urges the Court to impose a perhaps impossible requirement - that the State have a physician anesthesiologist or nurse anesthetisl present during the execution process to declare that a condemned prisoner is unconscious after the administration of the sodium pentothal and remains so until pronounced dead. The presence of such a raedical specialist is unnecessary.
The protocol is a simple one, requiring for the most part only trained and experienced correctional personnel to administer. The catheters through which the drugs will be administered are inserted by registered nurses ("RNs") or Emergency Medical Technicians ("EMTs"). insertion of a intrav,;nous catheter is a routine procedure, one which RNs and EMTs learn to perform in the ordinary course of their training, and routinely perform in the scope and course of their professional practice. If' because of some problem peculiar to the condemned prisoner being executed (such as a prior history of heavy, intravenous drug use), venous access proves beyond the capability of these

Ste_en McHone, executed November Areilives.

I I, 2005, http://arehives.newsbank.com,

Elias Syriani, executed November Archives.

18, 2005, bttp:Harehives.newsbank.com,

Kenneth Boyd, executed Archives.

December

2, 2005, http://archives.newsbank.com,

Perrie Dyon Simpson, executed January 20, 2006, http://archives.newsbank.com, Archives.

Paoick Lane Moody, executed March 17, 2006, http://archives.newsbank.com, Archives.

-9-

News and Observer News and Observer News and Observer
News and Observer News and Observer

medicalprofessionalss,uchprocedureasmayberequiredto gainaccesswill beperformedby an appropriatemedicalprofessionawl ith the necessarsykills andtraining. ([1s'] Polk Aft. ¶ 14.) HoweverA, ppellanthasneitherallegednorshownthatvenousaccesswouldbca problemin his case.(Seelist] Burton-MareeAft.)
All parties agree that 3000 mg. of sodium pentothal properly administered will cause total unconsciousness. ([ 1s,] Dershwitz Aft. ¶ 10; [ 1"] Heath Aft'. ¶ 13 ). Appellant does not contend that the amount of sodium pentothal should be increased. Dr. Dershwitz testifies that "the dose of thiopental sodium used by North Carolina would render most people unconscious within 60 seconds from the time of the start of administration. By the time all 3000 mg ofthiopental sodium solution are injecte,i... 99.99999999% of the population would be unconscious." ([l s'] Dershwitz Aft. ¶ I0.)
Appellees, in their Notice and Response to 7 April 2006 Order ("Response"), "have: (1) purchased a bispectral index monitor ("BIS monitor"), a diagnostic device approved by the Food and Drug Adnainistration ("FDA") that is used extensively in clinical settings to insure the unconsciousness of surgical patients; (2) revised the execution protocol to utilize the BIS monitor to measure the [Appellant's] level of consciousness throughout the execution procedure; (3) revised the execution protocol s to provide for the administration of additional quantities of sodium pentothal
3 On 12 April 2006, Warden Polk revised the execution protocol for Appellees as follows: Death is caused by the administration of lethal quantities of sodium pentothal, pancuronium
bromide and potassium chloride. The condemned prisoner's level of consciousness will be monitored during the execution procedure utilizing a bispectral index (BIS) monitor.
The lethal injection process involves the successive, simultaneous slow pushing into two IV lines, each leading into two separate body locations, of the chemical mixtures contained in two identical sets of five (5) individual syringes that are prepared in advance, and each syringe of each set contains only one (1) of the
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beyondtheinitialdoseof notlessthan3000mg,if the[Appellant]b, asedonthereadingosf theBIS monitor,hasnotbeenrenderedunconsciousa;nd(4) revisedtheexecutionprotocolto insurethat [Appellanl]is in factunconsciousa,smeasurebdy theBISmonitor,priorto theadministratioonf anypancuroniumbromide.(Responsep,.2.) These further safeguards diminish to infinitesimal the
probabilit_ of Appellant's being conscious after the effective administration of 3000 mg of sodium
pentothal. Thu District Court correctly recognized the distinction between a judicial execution and the
practice of medicine promoted by Appellant and his expert witnesses in finding that: It is now clear that [Appellant] will not be satisfied with anything less than an experienced, licensed, board certified anesthesiologist standing at his bedside in plain view of attending witnesses.

drugs.

The first syringe in each set contains not less than 1500 rag, for a total dose of not less than 3000 mg, of sodium pentothal, which upon information and belief is an ultra short acting barbiturate that quickly puts the inmate to sleep.

The second syringe in each set contains a saline solution and not less than 30 mL is injected into each IV line to flush it after administration of the sodium pentothal.

The third syringe in each set, which will not be given until after the value reading on BIS

monitor falls below 60, contains not less than 20 mg ofpancurunium

bromide, for a total

dose of not less than 40 rag, which upon information and belief is a chemical paralytic agent.

The fourth syringe in each set contains not less than 80 mEq of potassium chloride, for a total does of not less than 160 mEq, which upon information and belief, at this dosage level, interrupts nerve impulses to the heart causing the heart to stop beating, if it has not already.

6.

The fifth syringe in each set contains a saline solution and not less than 30 mL is injected into

each IV line to flush it after the administration of pancurunium bromide and the potassium

chloride.

7,

In the event the value reading on the BIS monitor does not fall below 60 following the 3000

mg dose of sodium pentothal, additional sodium pentothal be given until the value reading on the BIS monitor does fall below 60.

(2d Polk Aff. ¶ 6.)

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[Appellant]attemptsto forcea conflictof medicael thicsby taking theissueofthepositioningofmedicapl rofessionailnsandaroundthe executionchambera,nddressingit in constitutionacllothes. (Order,pp.4-5.) Therequirementht ataphysiciananesthesiologoisrtnurseanesthetisbtepresent injectsforL;seeabalen,dlikelyinsurmountabldei,fficulties,primarilyin obtainingtheserviceosfsuch specialize,m:ledicalprofessionalsT.hereis greact ontroversayboutwhethemr edicapl rofessionals ethically_houldplayanyrolein anexecution.EventhoughNorthCarolinalawpermitsthemto participatein executions4,it is mostlikelythatfew,if any,medicapl rofessionawlsouldbewilling todoso. First,medicalethicsmayinhibitthewillingnessof medicapl rofessionatlso participatein execution:;:WhilethisCourtwill recognizethefinedistinctionin thechoiceof languagebetween "should"ratherthan"shall" asusedin boththeAmericanMedicalAssociationpolicyandNorth CarolinaMedicalSocietyresolutionf,ewlaypersonws ill acknowledgseuchinterpretatioinn light of thc exlremeenlotionsgeneratedby the issue. Few,if any,medicalprofessionalws ouldrisk

4 "Fhe relevant statutes provide in pertinent part:

The warden of Central Prison may obtain and employ the drugs necessary to carry out the provisions of this Article, regardless of contrary provisions in Chapter 90 of the General Statutes.

N.C. Gen. State 15-187 (2006), and

Tl_e superintendent [Warden] of the State penitentiary shall also cause to be provided, in conformity with this Article and approved by the Governor and Council of State, the necessary appliances for the infliction of the punishment of death and qualified personnel to set up and prepare the injection, administer the preinjections, insert the IV catheter, and to perform other tasks required for this pr:_cedure in accordance with the requirements of this Article.

N.C. Gen. :3tate 15-188 (2006). 5 1992 American Medial Association Policy E-206 states:

A physician..,

should not be a participant in a legally authorized execution.

Similarly, the Resolution of the North Carolina Medical Society amended 11/16/03 states:

A physician..,

should nat be a participant in a state execution.
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opprobrium of their peers by participating. Few would risk being subjected to charges of unethical conduct filed with the professional organizations that license and regulate doctors and nurses. Lawsuits against medical personnel brought by thosc seeking the end of the death penalty would be inevitable. _ In light of these challenges, Appellees devised an execution protocol that does not require anc:sthesiologists or nurse anesthetists, yet still permits the State to execute Appellant as painlessly, humanely and quickly as possible and enforce its lawfid judgment.
Some activities associated with a judicial execution are consistent with the practice of medicine, ;pecifically with the practice of anesthesiology. However, the District Court clearly recognized that the desired and expected results of each process were irreconcilable. The practice of anesthe:;iology seeks to sedate a patient to unconsciousness for the length of time a medical procedure is being performed and return the patient to consciousness for recovery. A judicial execution tather seeks to carry out the capital sentence of the court in an efficient, painless, humane, and speedy manner.
Th(: Legislature of North Carolina also recognized that judicial executions were not the practice of medicine when it enacted the provision allowing medical personnel to be employed to perform executions "regardless of contrary provisions in Chapter 90 of the General Statutes." N.C. Gen. Stat. § 15-187 (2005). Chaptcr 90, entitled Medicine and Allied Professions, governs the practice of:nedicine and similar professional practices, establishes the various professional licensing

6 The District Court was strongly influenced by the actions of the District Court in California, which ordered

the State to have anesthesiologists

both present during the execution to monitor the prisoner's plane of consciousness

and participate in the execution in their professional capacity as medical specialists. The District Court noted that the

anesthesiolo&ists employed by the State of California walked off the job when they learned they would be called on as

medical practitioners to respond if the prisoner appeared to be conscious after the administration of the thiopental

sodium. Morales v. Woodford, Case No. C 06-0219 (JF)(RS) ('N.D. Ca.) This proved to be an adequate signal of the

problems inh,:rent in redefining a judicial execution as a medical procedure and requiring anesthesiologists or anesthetist

to participate in an execution in their professional status as medical practitioners.

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boardsa, n,:el mpowertshesocietiesthatregulatetheseprofessionsO. neoftheprofessionaslocieties
created in Chapter 90, the North Carolina Medical Society, defines and sets the appropriate standards for the practice of medicine.
The statute prescribing lethal injection as the sole form of capital punishment in North Carolina, N.C. Gen. Stat. § 15A-188, has been in effect since 1988. Appellant elected not to challenge the State's method of execution until a few days before the State set the date for his execution. Such a deliberate dilatory tactic by a criminal defendant is a ground for denying equitable relief. Nelson, 541 U.S. at 649; Harris v. Johnson, 376 F.3d 414,417 (5 'h Cir. 2004). Such tactics irreparably harm the State and are contrary to the public interest. Appellees, therefore, request this Court to dc;ny Appellant's motion for preliminary injunction.
Appellant continues to assert righteously his claim pursuant to 42 U.S.C. § 1983, purportedly abhorring any suggestion that his claim merely is a collateral attack on his sentence of death. However, !ae attempts to avoid well-established rules of law relating to allegations of the deliberate indifference to a serious medical need by stressing that his execution is imminent. Appellant, who must bear lhe burden of proof, has failed to show that Appellees acted or intend to act with deliberate indifferenc.e to his serious medical needs. Williams v. Benjamin, 77 F.3d 756, 761 (4 'h Cir. 1996). He has failed to prove that his alleged medical need was both apparent and serious, and that Appellees' alleged denial of that need was both deliberate and without a penological objective. Gravson v. Peed, 195 F.3d 692,695 (4 'h Cir. 1999). Likewise, he has failed to show that Appellees' alleged denials were the result of either actual intent to cause harm or the reckless disregard of the risk of haraa. Miltier v. Boem, 896 F.2d 848, 851 (4 tb Cir. 1990). Finally, he fails to show that Appellees knew of the substantial risk to his health or safety and consciously disregarded that risk.
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Farmer v. Brennan,511 U.S. 825, 836-37 (1994). With a ruling in Appellant's favor, this Court
would ow:rrule the entire body of well-established law relating to the deliberate indifference of a
serious m_._dical need. Appellees, therefore, request this Court to dismiss Appellant's appeal.
CONCLUSION
For the foregoing reasons, Appellees request this Honorable Court to dismiss Appellant's
appeal and deny Appellant's motion for preliminary injunction, allowing his execution currently
scheduled for 21 April 2006 and to proceed.
Respectfully submitted, this the 18th day of April 2006.
ROY COOPER Attorney General
/s/Thomas J. Pitman Thomas J. Pitman Special Deputy Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, NC 27602-0629 North Carolina State Bar Number: 9625 Telephone: (919) 716-6529 Facsimile: (919) 716-6760 E-Mail: tpitman_.ncdoi.com Attorney for Appellees Beck and Polk

/s/James Peeler Smith

James Peeler Smith

Special Counsel North Carolina State Bar Number: 5193

North Carolina Department of Justice

Telephone: Facsimile: E-Mail:

(919) 716-6543 (919) 716-6761

Attorney for Appellees Beck and Polk

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on 18 April 2006, I electronically filed the forcgoing Brief of Appellees Opposing Appellant's Motion for Preliminary Injunction concurrently with the

Clerk of Court for the Fourth Circuit Court of Appeals and upon counsel for Appcllant by electronic transmission addressed to:

J. Donald Cowan, Jr. SMITH MOORE LLP Po:;t Office Box 21927
Greensboro, NC 27420 E-mail: don.cowan(_smithmoolelaw.coln

Laura M. Loyek SMITH MOORE LLP Post Office Box 27525 Raleigh, NC 27611 E-mail: laura.loyck_smithmoorelaw.conl

Respectfully submitted,

/s/Thomas J. Pitman Thomas J. Pitman Special Deputy Attorney

General

I:WIoorS'd3ATA\WP61WJPkLethal

Injection Folders_rown\Working'_,4t_ir':'Appeal

Brief.Final.wpd

 
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CLOSED
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division)
CIVIL DOCKET FOR CASE #: 5:06-ct-03018-H

Brown v. Beck et al Assigned to: Judge Malcolm J. Howard Cause: 28:1983 Civil Rights Plaintiff Willie Brown, Jr.
V. Defendant Theodis Beck

Date Filed: 02/27/2006 Date Terminated: 05/17/2006 Jury Demand: None Nature of Suit: 535 Death Penalty - Habeas Corpus Jurisdiction: Federal Question
represented by J. Donald Cowan, Jr. Smith Moore 2800 Two Hannover Square Raleigh, NC 27601 919-755-8829 Fax: 919-755-8800 Email: don.cowan@smithmoorelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Murray Loyek Smith Moore, LLP 2800 Two Hanover Square Raleigh, NC 27601 919-755-8700 Fax: 755-8800 Email: laura.loyek@smithmoorelaw.com ATTORNEY TO BE NOTICED
represented by James Peeler Smith NC Dept. of Justice P. O. Box 629 Raleigh, NC 27603 919-716-6833 Fax: 919-716-6761 Email: jpsmith@ncdoj.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas James Pitman

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Defendant Marvin Polk
Defendant Unknown Executioners

N. C. Dept. of Justice P. O. Box 629 Raleigh, NC 27602-0629 919-716-6529 Fax: 716-6761 Email: Tpitman@ncdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Peeler Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas James Pitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/27/2006 02/27/2006 02/28/2006 02/28/2006
02/28/2006

#

Docket Text

1 COMPLAINT against Theodis Beck, Marvin Polk, Unknown Executioners ( Filing fee $ 250 receipt number 104 21559.), filed by Willie Brown, Jr. (Attachments: # 1 Exhibit A to Complaint# 2 Civil Cover Sheet)(Cowan, J.) (Entered: 02/27/2006)
6 Summons Issued as to Theodis Beck, Marvin Polk. (Deputy Clerk, GM) (Entered: 03/07/2006)
2 MOTION for Preliminary Injunction by Willie Brown, Jr. (Cowan, J.) (Entered: 02/28/2006)
3 Memorandum in Support re 2 MOTION for Preliminary Injunction filed by Willie Brown, Jr. (Attachments: # 1 Exhibit A - Page/Rouse/Perkins Grievance Documents# 2 Exhibit B - State's Emergency Petition, State v. Hunt# 3 Exhibit C - Redacted NC Licensing Documents# 4 Exhibit D - Unpublished Cases# 5 Exhibit E - Excerpts from Depo. of Marvin Polk# 6 Exhibit F - Affidavit of Dr. Mark J. S. Heath# 7 Exhibit G - Affidavit of Philip G. Boysen# 8 Exhibit H Affidavit of Dr. Kevin Concannon# 9 Exhibit I - Affidavit of Nancy Bruton-Maree# 10 Exhibit J - Affidavit of Cynthia F. Adcock# 11 Exhibit K Affidavit of Heather Wells# 12 Exhibit L - Affidavit of Kim Stevens)(Cowan, J.) (Entered: 02/28/2006)
9 SUMMONS Returned Executed Theodis Beck served on 2/27/2006, answer due 3/19/2006; Marvin Polk served on 2/27/2006, answer due 3/19/2006. (Deputy

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03/01/2006 03/03/2006
03/07/2006 03/07/2006 03/08/2006 03/08/2006
03/09/2006
03/10/2006 03/13/2006 03/13/2006 03/15/2006
03/15/2006 03/20/2006

Clerk, GM) (Entered: 03/08/2006)
4 NOTICE of Appearance by Laura Murray Loyek on behalf of Willie Brown, Jr (Loyek, Laura) (Entered: 03/01/2006)
5 Order to Particularize Complaint to submit information to the court to show whether or not plaintiff had exhausted available administrative remedies at the time he filed the complaint and Response due by 3/13/2006.. Signed by Judge Malcolm J. Howard on 3/3/2006. (Deputy Clerk, GM) (Entered: 03/03/2006)
10 MOTION to Dismiss by Theodis Beck, Marvin Polk. (Deputy Clerk, GM) (Entered: 03/09/2006)
11 Memorandum in Support re 10 MOTION to Dismiss by Theodis Beck, Marvin Polk. (Attachments: # 1 Exhibit)(Deputy Clerk, GM) (Entered: 03/09/2006)
7 MOTION for Leave to File Amended Complaint by Willie Brown, Jr. (Attachments: # 1 Exhibit A - Amended Complaint with exhibits)(Loyek, Laura) (Entered: 03/08/2006)
8 RESPONSE to Order re 5 Order to Particularize Complaint, filed by Willie Brown, Jr. (Attachments: # 1 Exhibit A - Emergency Grievance# 2 Exhibit B Grievance Response (Step 1 and Step 2)# 3 Exhibit C - Page, Rouse & Perkins Grievance Responses# 4 Exhibit D - Grievance Examiner's Final Decision)(Loyek, Laura) (Entered: 03/08/2006)
12 ORDER directing any responses re 7 MOTION for Leave to File Amended Complaint filed by Willie Brown, Jr. to be filed on or before 3/14/2006. Signed by Judge Malcolm J. Howard on 3/9/2006. (Deputy Clerk, GM) (Entered: 03/09/2006)
13 RESPONSE in Opposition re 7 MOTION for Leave to File Amended Complaint filed by Theodis Beck, Marvin Polk. (Attachments: # 1 Exhibit Hargett Order)(Pitman, Thomas) (Entered: 03/10/2006)
14 RESPONSE in Opposition re 10 MOTION to Dismiss filed by Willie Brown, Jr. (Attachments: # 1 Exhibit A - Page v. Beck Order Nov. 30, 2004# 2 Exhibit B Rowsey v. Beck Order Jan. 20, 2004)(Loyek, Laura) (Entered: 03/13/2006)
15 REPLY to Response to Motion re 7 MOTION for Leave to File Amended Complaint filed by Willie Brown, Jr. (Loyek, Laura) (Entered: 03/13/2006)
16 ORDER dismissing as moot 7 Motion for Leave to amend, amended complaint is deemed filed as of the date of the filing of plaintiff's motion and denying 10 Motion to Dismiss . Signed by Judge Malcolm J. Howard on 3/15/2006. (Deputy Clerk, GM) (Entered: 03/15/2006)
17 ORDER Scheduling Conference set for 3/27/2006 01:00 PM before Judge Malcolm J. Howard in Greenville. Signed by Judge Malcolm J. Howard on 3/15/2006. (Deputy Clerk, GM) (Entered: 03/15/2006)
18 First MOTION for Leave to File Excess Pages Memo Opposing Preliminary Injunction by Theodis Beck, Marvin Polk. (Attachments: # 1 Text of Proposed Order Exceed Page Limit)(Pitman, Thomas) (Entered: 03/20/2006)

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03/20/2006 03/20/2006 03/21/2006 03/22/2006 03/22/2006 03/23/2006 03/23/2006 03/27/2006 03/27/2006 04/03/2006
04/05/2006 04/06/2006

19 Second MOTION to Dismiss Amended Complaint by Theodis Beck, Marvin Polk. Responses due by 3/20/2006 (Pitman, Thomas) (Entered: 03/20/2006)
20 Memorandum in Opposition Motion for Preliminary Injunction filed by Theodis Beck, Marvin Polk. (Attachments: # 1 Exhibit Exhibit List# 2 Affidavit Polk Affidavit# 3 Affidavit Beck Affidavit# 4 Exhibit Baze Case Report)(Pitman, Thomas) (Entered: 03/20/2006)
21 AFFIDAVIT re 20 Memorandum in Opposition Ex 3 (Dershwitz Aff) -Transmission Failure With Initial Filing by Theodis Beck, Marvin Polk, Theodis Beck, Marvin Polk filed by Theodis Beck, Marvin Polk, Theodis Beck, Marvin Polk. (Pitman, Thomas) (Entered: 03/21/2006)
22 NOTICE by Willie Brown, Jr of Filing (Attachments: # 1 Order Setting Date of Execution)(Loyek, Laura) (Entered: 03/22/2006)
24 ORDER granting 18 Motion for Leave to File Excess Pages . Signed by Judge Malcolm J. Howard on 3/22/2006. (Deputy Clerk, GM) (Entered: 03/23/2006)
23 MOTION for Leave to File Excess Pages by Willie Brown, Jr. (Attachments: # 1 Text of Proposed Order Granting Motion to Exceed Page Limit)(Loyek, Laura) (Entered: 03/23/2006)
25 ORDER granting 23 Motion for Leave to File Excess Pages . Signed by Judge Malcolm J. Howard on 3/23/2006. (Deputy Clerk, GM) (Entered: 03/23/2006)
26 ORDER hearing on motion for injunctive relief set for 4/6/2006 09:00 AM in Greenville before Judge Malcolm J. Howard.. Signed by Judge Malcolm J. Howard on 3/27/2006. (Deputy Clerk, GM) (Entered: 03/28/2006)
27 ORDER denying 19 Motion to Dismiss and motion for reconsideration . Signed by Judge Malcolm J. Howard on 3/27/2006. (Deputy Clerk, GM) (Entered: 03/28/2006)
28 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction filed by Willie Brown, Jr. (Attachments: # 1 Exhibit A - Diagram of Execution Area# 2 Exhibit B - McHone Toxicology Report# 3 Exhibit C - Syriani Toxicology Report# 4 Exhibit D - Boyd Toxicology Report# 5 Exhibit E - Simpson Toxicology Report# 6 Exhibit F - Excerpts from Deposition of Marvin Polk# 7 Exhibit G - Excerpts from Deposition of Theodis Beck# 8 Exhibit H - Second Affidavit of Dr. Mark J. S. Heath# 9 Exhibit I - Second Affidavit of Nancy Bruton-Maree, CRNA# 10 Exhibit J - Second Affidavit of Dr. Kevin Concannon)(Loyek, Laura) (Entered: 04/03/2006)
29 AFFIDAVIT in Opposition re 18 First MOTION for Leave to File Excess Pages Memo Opposing Preliminary Injunction filed by Theodis Beck, Marvin Polk. (Attachments: # 1 Notice of Filing (Dershwitz Second Affidavit)# 2)(Pitman, Thomas) (Entered: 04/05/2006)
30 Minute Entry for proceedings held before Judge Malcolm J. Howard: Motion Hearing held on 4/6/2006 re 2 MOTION for Preliminary Injunction filed by Willie Brown, Jr. Present for pla-Donald Cowan, Laura Loyek, deft-Thomas Pittman, James Smith. Court hears arguments from counsel. Defts offer exhibit 1. Court takes matter under advisement-written order to follow. Total hrg time: 3 hrs. (S.

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04/06/2006 04/07/2006 04/07/2006
04/11/2006 04/12/2006 04/14/2006

Foell, clk) (Court Reporter Harry Hagopian) (Deputy Clerk, SDF) (Entered: 04/06/2006)
NOTICE OF DEFICIENCY re: 29 Affidavit in Opposition to MotionDocument filed as an affidavit. If filing as a Notice of Filing, the Notice of Filing selection should be used.Affidavit was not signed or notarized. (Deputy Clerk, GM) (Entered: 04/06/2006)
31 AFFIDAVIT in Opposition re 2 MOTION for Preliminary Injunction Substitute Dershwitz Second Affidavit filed by Theodis Beck, Marvin Polk. (Pitman, Thomas) (Entered: 04/07/2006)
32 ORDER denying 2 Motion for Preliminary Injunction. Accordingly, the Court hereby conditionally DENIES plaintiff's motion for preliminary injunction and plaintiff's execution may proceed as scheduled on April 21, 2006 on the condition that there are present and accessible to plaintiff throughout the execution personnel with sufficient medical training to ensure the plaintiff is in all respects unconscious prior to and at the time of the administration of any pancuronium bromide or potassium chloride. ccys served by fax and by mail 4/7/2006.Signed by Judge Malcolm J. Howard on 4/7/2006. (Deputy Clerk, DH) (Entered: 04/07/2006)
TRANSCRIPT of Proceedings held on April 6, 2006 before Judge Malcolm J. Howard. Court Reporter: Harold M. Hagopian. (Deputy Clerk, GM) (Entered: 04/17/2006)
33 RESPONSE to Order re 32 Order on Motion for Preliminary Injunction,, filed by Theodis Beck, Marvin Polk. (Attachments: # 1 Affidavit Dershwitz Third Affidavit# 2 Affidavit Polk Second Affidavit)(Pitman, Thomas) (Entered: 04/12/2006)
34 RESPONSE re 33 Response filed by Willie Brown, Jr. (Attachments: # 1 Exhibit Kentucky Transcript# 2 Exhibit Rebuttal of Dershwitz# 3 Errata Heath Third Affidavit# 4 Exhibit Heath Third Affidavit, part 2# 5 Exhibit Heath Third Affidavit, part 3# 6 Exhibit Heath Third Affidavit part 4# 7 Exhibit Heath Third Affidavit part 5# 8 Exhibit Heath Third Affidavit part 6# 9 Exhibit Heath Third Affidavit, part 7# 10 Exhibit Heath Third Affidavit part 8# 11 Exhibit Heath Third Affidavit part 9# 12 Errata Heath Third Affidavit part 10# 13 Exhibit Heath Third Affidavit part 11# 14 Exhibit Heath Third Affidavit part 12# 15 Exhibit Heath Third Affidavit part 13# 16 Exhibit Heath Third Affidavit part 14# 17 Exhibit Heath Third Affidavit part 15# 18 Exhibit Heath Third Affidavit part 16# 19 Exhibit Heath Third Affidavit part 17# 20 Exhibit Heath Third Affidavit part 18# 21 Exhibit Heath Third Affidavit part 19# 22 Exhibit Heath Third Affidavit part 20# 23 Exhibit Heath Third Affidavit part 21# 24 Exhibit Heath Third Affidavit part 22# 25 Exhibit Heath Third Affidavit part 23# 26 Exhibit Heath Third Affidavit part 24# 27 Errata Heath Third Affidavit part 25# 28 Exhibit Heath Third Affidavit part 26# 29 Exhibit Heath Third Affidavit part 27# 30 Exhibit Heath Third Affidavit part 28# 31 Exhibit Heath Third Affidavit part 29# 32 Exhibit Heath Third Affidavit part 30# 33 Exhibit Heath Third Affidavit part 31# 34 Errata Heath Third Affidavit part 32# 35 Exhibit Heath Third Affidavit part 33# 36 Exhibit Boysen Second Affidavit# 37 Exhibit Maree Third Affidavit# 38 Exhibit Kelley Affidavit)(Loyek, Laura) (Entered: 04/14/2006)

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04/17/2006
04/17/2006 04/18/2006 04/19/2006 04/19/2006 04/20/2006
04/20/2006 04/21/2006 04/25/2006
04/25/2006 04/25/2006 04/27/2006
05/16/2006 05/17/2006

35 FINAL ORDER denying re 2 MOTION for Preliminary Injunction filed by Willie Brown, Jr. Signed by Judge Malcolm J. Howard on 4/17/2006. (Deputy Clerk, AI) (Entered: 04/17/2006)
36 NOTICE OF APPEAL by Willie Brown, Jr. Filing fee $ 455. (Loyek, Laura) (Entered: 04/17/2006)
37 NOTICE of filing on 4/19/06 of motion and application to intervene by James Chapman French (Deputy Clerk, AI) (Entered: 04/18/2006)
38 NOTICE of future filings to take place on 4/20/06 by James Chapman French. (Deputy Clerk, AI) (Entered: 04/20/2006)
USCA Appeal Fees received $ 455 receipt number 105 25757 re 36 Notice of Appeal filed by Willie Brown, Jr. (Deputy Clerk, GM) (Entered: 04/20/2006)
39 MOTION to Intervene by James Chapman French. (no signature) (Attachments: # 1 Unsigned Memo in Support# 2 Verified Complaint)(Deputy Clerk, GM) (Entered: 04/21/2006)
USCA Case Number 06-9 B. Walton for 36 Notice of Appeal filed by Willie Brown, Jr.. (Deputy Clerk, GM) (Entered: 04/21/2006)
40 ORDER denying 39 Motion to Intervene . Signed by Judge Malcolm J. Howard on 4/21/2006. (Deputy Clerk, GM) (Entered: 04/21/2006)
41 PUBLISHED ORDER of USCA as to 36 Notice of Appeal filed by Willie Brown, Jr.denying motion for prelimary injunction (Deputy Clerk, GM) (Entered: 04/26/2006)
42 USCA JUDGMENT as to 36 Notice of Appeal filed by Willie Brown, Jr. (Deputy Clerk, GM) (Entered: 04/26/2006)
43 MANDATE of USCA as to 36 Notice of Appeal filed by Willie Brown, Jr. (Deputy Clerk, GM) (Entered: 04/26/2006)
44 ORDER of USCA as to 36 Notice of Appeal filed by Willie Brown, Jr. - denying motion to recall mandate, motion for stay of execution and dismissing petition for rehearing en banc (Deputy Clerk, GM) (Entered: 04/28/2006)
45 ORDER DISMISSING this action. Signed by Judge Malcolm J. Howard on 5/15/2006. (Deputy Clerk, GM) (Entered: 05/17/2006)
46 CLERK'S JUDGMENT - that this action is hereby dismissed. Signed by Brooks, Acting Clerk on 5/17/2006. (Deputy Clerk, GM) (Entered: 05/17/2006)

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