UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKNSAS
PINE BLUFF DNISION
TERRCK TERRLL NOONER
O. Box 600 Grady, AR 71644

FILED
s. DISTRICT COURT EASTERN DISTRICT ARKANSAS
M;W 0 1 2006
MES W. McCORMACK, CLERK
DEP CLERK

LARY NORRS , in his official capacity as
DIRECTOR
ARNSAS DEPARTMENT
OF CORRCTION
O. Box 8707 Pine Bluff, AR 71611

Civil Action No.

5.. () I; C'J () 116 II 11

t. Ule( ThiS case assigne to Di
and to Magistrate Judge

GA YLON LAY, in his official capacity as
WAREN
ARNSAS DEPARTMENT OF
CORRCTION
CUMMINS UNIT O. Box 500
Grady, AR 71644

WENDY KELLY, in her official capacity as
DEPUTY DIRECTOR FOR HEALTH AND CORRCTIONAL PROGRAS
ARNSAS DEPARTMENT
OF CORRCTION
O. Box 8707
Pine Bluff, AR 71611

JOHN BYUS, in his offcial capacity as ADMINISTRATOR
CORRECTIONAL MEDICAL SERVICES
ARNSAS DEPARTMENT
OF CORRECTION
O. Box 8707 Pine Bluff, AR 71611

, DOES 1- , UNKNOWN EXECUTIONERS
in their offcial capacities as Employees
and/or Agents of the Arkansas Deparent
of Correction.

COMPLAINT

I. Nature

of the Action

This is a civil rights action brought under 42 U. C. 1983 and the United States

Constitution for violations and threatened violations of the rights of the Plaintiff to be

free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution, to be free from arbitrar and capricious Departent of

Correction procedures and protocols in violation ofthe Fift and Fourteenth Amendments

of the United States Constitution, and to be free from deliberate indifference ofthe

Defendants toward Plaintiffs ' health and safety in violation of the Eighth and Fourteenth

Amendments of the United States Constitution.

Plaintiff, Terrck Terrell Nooner, is an Arkansas prison inmate who is under a sentence

of death. By statute, Arkansas employs lethal injection as its method of execution. The Defendants and the Arkansas Deparment of Correction (hereinafter "ADC") have
designed a procedure for carng out Arkansas' statutory method of execution that

purorts to induce death only after a condemned prisoner has been rendered unconscious and unable to experience pain. In reality, however, the policies and practices devised by

the Defendants and the ADC unecessarly risk conscious suffering and extreme pain

durng execution and deliberately ignore and are indifferent to the health and safety of

condemed prisoners, in violation of Plaintiffs civil rights guaranteed by 42 U. C.

1983 and the rights conferred by the Fift, Eighth and Fourteenth Amendments to the

United States Constitution. Plaintiff seeks equitable and injunctive relief. Ths lawsuit does not challenge the fact of the

Plaintiffs sentence of death, nor does it challenge the constitutionality of Arkansas ' statute

requiring execution by lethal injection. II. Jurisdiction and Venue
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. ~ ~ 1331 (federal question); 1343 (civil rights violations); 2201 (declaratory relief); and 2202
(furter relief).
Venue is proper under 28 U.S. C. ~ ~ 1391(b)(1) and 1391 (b)(2) because all Defendants reside withn this distrct and a substantial portion of the events giving rise to this claim have occured and wil occur within this distrct as par of the offcial business of the Departent of Correction.
III. The Parties Plaintiff Terrck Terrell Nooner is a United States Citizen and resident of the State of Arkansas. He is curently a prisoner under the supervision of the Arkansas Deparent of
Correction, ADC Number SK 926, awaiting the execution of a death sentence that was
imposed by the Pulaski County Circuit Court in 1993. Mr. Nooner is held in the Varer
Supermax Unit of the Arkansas Deparent of Correction in Grady, Arkansas. Mr.
Nooner does not have a scheduled execution date; when an execution date is scheduled according to ADC policy, Mr. Nooner wil be transferred to the Cummins Unit, also in Grady, Arkansas. The execution wil take place at the Cummins Unit.
Defendant Lar Norrs is the Director of the Arkansas Deparent of Correction.
Pursuant to state statute, Mr. Norrs determines the substances to be uniformly administered and the procedures to be used in any execution of an Arkansas prisoner and he and/or his assistants conduct each execution. Defendant Gaylon Lay is the Warden of the ADC Cumins Unit where the death

chamber is located and Plaintiffs execution wil be cared out. Warden Lay is the head
of the chain of command for control during each execution. Defendant Wendy Kelly is the Deputy Director for Health and Correctional Programs of the Arkansas Departent of Correction. Pursuant to established ADC procedure, the Deputy Director or her designee is responsible for obtaining the chemicals that are used to execute condemned prisoners and for establishing and maintaining intravenous access to the prisoner for the purose of administering the lethal injection. 10. Defendant John Byus is the Administrator of Correctional Medical Services for the Arkansas Deparment of Correction.
11. Defendants Unkown Executioners are the officers, agents, employees, and successors in offce, along with those acting in concert with them, of the Arkansas Deparent of
Correction who wil assist in carng out the executions of Plaintiff. Plaintiff does not
yet know the identities of the Unkown Executioners.
12. Defendants are acting under color of State law in establishing and designng the ADC execution policies and protocol and wil act under color of State law in selecting and administering to Plaintiff chemicals in amounts, in combinations, and by methods that wil unnecessarly risk conscious suffering and pain in the execution of a sentence of death and which are deliberately indifferent to the health, welfare, and safety of Plaintiff. VI. Statement of Facts
13. Lethal injection has been promoted as a peaceful, dignfied and humane way to induce death, akin to euthanzing a pet - a single injection, immediate unconsciousness, no
strggling or movement, with death occurrng withn seconds. The reality in Arkansas
however, is often quite different.

, "

14. Ronald Gene Simmons was executed by the State of Arkansas on June 25, 1990. The

administration ofthe lethal chemicals began at 9:02pm. Between 9:02 and 9:04pm

according to an eyewitness, Mr. Simmons appeared to nod off into unconsciousness.

However at 9:05pm he called out ' Oh! Oh!' and began to cough sporadically as though

he might be having difficulty breathing. During the next two minutes, he coughed

slightly, approximately 20 times, each cough heaving his stomach slightly and causing the gurney to shake a little."l Mr. Simmons became stil at 9:07pm, after which his face and arm turned first blue and then purple. An ADC employee twice appeared to adjust the
tube in Mr. Simmons' ar , and not until 9:19pm was Mr. Simmons pronounced dead by

the coroner.

15. Rickey Ray Rector was put to death in Arkansas on January 24, 1992. The execution
ars took one hour and 9 minutes to complete, during which time Mr. Rector s hands and

were punctured 10 separate times by ADC personnel searching for a suitable vein in

which to place the

ar. line and finally a deep incision, a "cut-down " was made in his

The curtains between the execution chamber and the witness room remained closed

during the 50 minutes it took to place the

line, but witness heard Mr. Rector s loud

moans as his skin was repeatedly pierced. Witnesses also heard the sound of skin

slapping skin as ADC personnel apparently tred to raise a vein, prompting one witness to

1 Bil Simmons Stoic Murderer Meets His Fate by Quiet Means ARNSAS DEMOCRAT June 26, 1990, at 9A. Bil Simmons was the Arkansas Bureau Chief for the Associated Press and, upon information and belief, no relation to Ronald Gene Simmons.
2 Sonja Clinesmith Moans Pierced Silence During Wait ARNSAS DEMOCRAT
GAZETTE, January 26, 1992, at 1B; Ron Fourner, 13 Outsiders View Death of Rector, Witnesses Listen, Wait Beyond Curtain ARKNSAS DEMOCRAT GAZETTE, Januar 26 , 1992, at 4B.

, "

say ' (tJhey re going to beat him to death. "'3 Even once the

line was secured and the

curtains opened, the ordeal for Mr. Rector was not over. The flow oflethal chemicals

began at 9:50pm, and for two minutes Mr. Rector looked to witnesses as though he was

nodding off to sleep. However, one observer noted that Mr. Rector said "' I'm getting

dizzy,''' two minutes after the execution began. Then at 9:55pm Rector s lips moved

rapidly - as ifhe was drawing shallow breaths. His lips stopped moving a minute later.

Mr. Rector stil was not pronounced dead; at 1 0:06pm a witness noted that a heart

monitor at the head of the guey appeared to be flat-lining, only to then see another
jump" and then "another flutter."6 Death was finally pronounced at 0:09pm.

16. On May 7, 1992, Steven Douglas Hil was executed. His execution began at 9:02pm.

His eyes closed one minute later, but shortly afterwards he had what witnesses described

as "a ' seizure ' arching his back with his cheeks popping OUt.,,7 The seizue ended at

9:04pm and Mr. Hil was pronounced dead at 9:10pm.

17. Chrstina Riggs, the first woman to be put to death in Arkansas in over 150 years, was

executed on May 2, 2000. The procedure was delayed for 18 minutes while ADC

3 Ron Fourer
, 13

Outsiders View Death of Rector, Witnesses Listen, Wait Beyond

Curtain ARNSAS DEMOCRAT GAZETTE, January 26, 1992, at 4B.

4 Joe Farmer Rector, 40, Executed for Offcer s Slaying, ARNSAS DEMOCRAT GAZETTE, January 25 , 1992, at 9A. If a suffcient dose of Thiopental is properly administered to
the prisoner, it wil cause him to lose consciousness and stop breathing within one minute.

S Ron Fourner
, 13

Outsiders View Death of Rector, Witnesses Listen, Wait Beyond

Curtain ARNSAS DEMOCRAT GAZETTE, Januar 26, 1992, at 4B.

6 Id.

7 Andy Gotlieb and Linda Satter,

Hil Dies by Injection for

DEMOCRAT GAZETTE, May 8 , 1992 , at 17 A.

84 Police Kiling,

ARKNSAS

personnel struggled in vain to insert the IV line into her elbows. When they could not do

, they asked Ms. Riggs if they could insert the catheters into her wrists, and she

consented. The execution then proceeded. However, a minute after the drugs had

purortedly begu to flow into her body, Ms. Riggs was stil vocalizing. Witnesses heard
her say "I love you, my babies.

18. More of the 26 individuals who have been executed by lethal injection by the State of

Arkansas may have suffered agonies during the execution procedure, while their suffering

was hidden from observers by the total paralysis induced by the ADC' s decision to use a

neuromuscular blocking agent, namely Pancurium Bromide, as one of the chemicals

administered during the procedure.

See Paragraphs 33- , 42- infra incorporated by

reference as if fully set fort herein.

19. Unless modified, the policies and practices followed by the ADC, which are the same

today as were used in the executions of Mr. Simmons, Mr. Rector, Mr. Hil and Ms.

Riggs, wil unnecessarly place Plaintiff at risk of suffering the same excruciating,

tortous death as was experienced by Mr. Simmons, Mr. Rector, Mr. Hil and Ms. Riggs.

Arkansas ' Lethal Injection Legislation

20. In 1983 , the Arkansas State Legislature enacted a statute prescribing that "(tJhe

punshment of death is to be administered by a continuous, intravenous injection of a

lethal quantity of an ultra-short-acting barbiturate in combination with a chemical

paralytic agent until the defendant's death is pronounced according to accepted standards

of medical practice." Ark. Code An. ~ 5- 617(a)(1). Ths legislation mandated

g Cathy Frye Riggs, Mother who Kiled her

Children, Put to Death by State

ARNSAS DEMOCRAT GAZETTE, May 3 2000, at IB.

, "

execution by this method for all defendants whose capital crimes were committed after

July 4, 1983.

21. The statute prescribes no specific drugs, dosages, drug combinations, maner of

intravenous line access, or certifications, training, or licensure for those who participate in

executions. All of the details for carrng out executions are left up to the Director of the

ADC. Ark. Code An. 9 5- 617(a)(2)("The Director of the Deparment of Correction

shall determine the substances to be uniformly administered and the procedures to be

used in any execution

How Executions Are Performed in Arkansas

22. On information and belief, executions by lethal injection in Arkansas are performed in the

following way:

23. The condemned prisoner is strapped to a guey in the execution chamber. His head is
completely immobilized by two pieces of plastic, which press against the sides of his face
ars like bookends, and a tight leather strap across his forehead. His are spread at angles

away from his body, and each hand is strapped to a board that protrdes from each side of
the guey. A leather breastplate is held in place by a strap across his chest, straps ruing
over each shoulder and a strap across his waist. Another strap rus across his thighs.

Finally, leather shackles are placed around his anles and then fastened to the guey,

immobilizing his lower legs.

24.

ADC employees insert two intravenous

lines into the condemned prisoner and

attach an electrocardiogram monitor. The execution protocol states only that the

Defendant Deputy Director of Health and Correctional Programs, or her designee shall

have catheters placed in each arm or other appropriate areas." This simple statement in

actuality refers to a significant medical procedure that can be fraught with problems

and complications. The typical site for obtaining intravenous access is the area ofthe

antecubital fossae, or elbow folds. However, such access is not always obtainable and

other, increasingly invasive procedures may be the only methods available. Despite this

fact the execution protocol fails to provide any further guidance as to how intravenous

access is to be secured. No procedures govern which

insertion point wil be selected

the circumstances under which an alternate

insertion point wil be selected, which

alternate site wil be selected or the qualifications of the person or persons who wil

perform surgical procedures such as insertion of subclavian lines or cut-downs.

25.

When the

lines are in place, the curtain across the window that divides the execution

chamber from the witness room is lifted. A section of the IV lines is visible, and can be

seen runnng from the condemned prisoner s body, draped across the floor ofthe chamber

and passing through a hole in a glass window that leads to a separate control room where

the two executioners wait. Extended

lines are required in order to stretch into the

control room. Last statements are made, and then the Warden orders the execution to

begi.

26. The two lay-executioners then begi attaching and plunging up to eight hand-held plastic

syrnges in a complicated sequence prescribed by the ADC protocol. First one drug, then

a saline flush, then two syrnges of the next drug, another saline flush, and then up to

three syrnges of a third drug. It is not known who, if anyone, directs the sequence of

drug administration for the executioners or how they divide the varous tasks between

them.

27. The drugs purortedly administered are: Thiopental (to cause unconsciousness); Pancuronium Bromide (to cause paralysis and to stop all movement including respiration); 10 and Potassium Chloride (to stop the hear).
28. The putative drugs dosages are:
2 g Thiopental; 10- 15cc Normal Saline; 50 mg Pancuronium Bromide; 50 mg Pancuronium Bromide; 10- 15cc Normal Saline; 50 meqs (miliequivalents) Potassium Chloride; 50 meqs Potassium Chloride; 50 meqs Potassium Chloride.
29. When the prisoner no longer exhibits any signs of life, the Warden summons the coroner into the death chamber to pronounce death.
30. Ths process recklessly subjects condemned prisoners to multiple signficant and utterly unnecessary risks that they wil be torted to death. The Risks of ADC' s Chosen Lethal Injection Process
31. The risks associated with the ADC' s chosen execution process include, but are not limited to, the following:
(a) First, in violation ofthe applicable medical standard of care regarding the use of painful drugs such as Potassium Chloride, the process fails to employ properly trained and skiled persons to carr out the necessar induction and maintenance of general
anesthesia.
Thopental is also known as Sodium Pentothal or Sodium Thiopental and wil be referred to as Thiopental in this Complaint. 10 Pancuronium Bromide is also known by a trade name, Pavulon.

(b) Second, the arrangement ofthe execution chamber, the condemned prisoner, the control room and all involved equipment is such that, even if properly trained persons were employed to induce and maintain an appropriate level of anesthesia, they would be physically unable to perform that function adequately. (c) Thrd, the process arbitrarly and unnecessarly uses drugs and drug dosages that create signficant risks that condemned prisoners wil suffer severe and completely
unnecessar pain during execution.
Because the Drugs Selected by the Director to Cause Death Are Painful Qualified Persons Must be Employed to Create and Maintain IV Access to Ensure Adequate Anesthesia. 32. The paricular drugs selected by the Director of the ADC to cause death in an execution by lethal injection cause severe physical pain when administered to the human body. When a concentrated dose of Potassium Chloride is injected intravenously it feels like a fire traveling through the vein to the heart. Death by Potassium Chloride poisoning is known to be so excruciating that the American Veternar Medical Association
A VM") prohibits the use of Potassium Chloride as the sole agent of euthanasia and, if
it is to be used at all, mandates that it only be used after the subject has reached a surgical plane of anesthesia. 33. Pancuronium Bromide is a neuromuscular blocking agent. When administered it paralyzes all voluntar muscles, including those necessar for breathing. Respiration is impossible. The drug in effect bures the recipient alive in a chemical tomb, where he is fully concious but unable to signal distress and unable to breathe, and eventually dies by asphyxiation. Death by asphyxiation involves intense, visceral pain and has, as a method of execution, been ruled unconstitutional as violative of the Eighth Amendment.

34. The risks associated with the use of neuromuscular blocking agents are well known in the

medical profession. The A VMA prohibits the use of neuromuscular blocking agents in combination with the barbiturate anesthetics on animals. Lethal injection can be humane

only if an anesthetic is administered which induces unconsciousness before

neuromuscular blockers stop respiration or Potassium Chloride is injected.

35.

Administration of

anesthesia requires proficiency at achieving and maintaining

access, because the potential sources of error are many. For example:

(a)

catheters must be inserted such that the tip is inside a vein and does not

penetrate through the vein wall into tissue. If a catheter is incorrectly placed, the

drugs flowing through the

lines can infitrate the tissue surounding the

catheter rather than correctly entering the vein, thus impeding the delivery of the

drug to the brain.

(b) Once inserted, the catheters are connected with extensive tubing to

fluid

bags. All mechancal components of the

system must operate correctly for the

drugs to be correctly delivered, but errors commonly occur:

tubing sometimes

leaks or becomes disconnected, or the drugs are introduced to the

system in the

wrong direction, preventing the drugs in the

line from reaching the patient in

the intended concentrations, or from reaching the patient at all.

(c) Upon information and belief, ADC employs unqualified persons to create access for executions. The protocol adopted by the Director states that the Deputy

Director for Health and Correctional Programs, or her designee, shall insert the intravenous infusion device into the prisoner; the protocol has no requirements

that such persons be trained to do so. Such persons are not competent

administer drugs intravenously and are not expert in the process of inserting and

maintaining

catheters. Once the execution commences, no one monitors the

catheters , leaving open the possibility that disconnected or clogged during the process.

catheters can become loose

(d) In the event that ADC employees cannot achieve

access via a peripheral

vein in a hand or ar, the ADC is wiling to create venous access through the

invasive and painful processes of inserting a percutaneous central line (tunneling

under the skin to reach the subclavian or central vein) or performing a surgical

cut-down (where a vein is exposed by incision). Because these technques of venous access require much more skill and training and are far more invasive than

peripheral vein access, they are normally performed only in highy equipped

emergency rooms or operating theaters.

(e) The ADC protocol fails to specify who has performed these procedures in the

past (and there has been at least one subclavian central line and at least one cut-
down performed) or who wil perform them in the futue, if necessar, and failed to guantee that those performing such procedures wil have the requisite training to protect condemed inates from unnecessar pain. Ths is especially risky given that it is not always possible to predict that there wil be difficulty obtaining

peripheral

access until attempts to establish such access are underway.

(f) Arkansas uses two lay-executioners to attach and plunge eight handheld syrnges, labeled only by number, in a complicated sequence in order to deliver

the deadly drugs. The use of untrained persons to label, attach and plunge

syrnges risks error in the sequence and rate of drug administration. Potential

line failures are also unguarded against because the executioners canot observe

the

site and monitor the condition of the

catheter for problems that may

develop such as infiltrations and blowouts and are not trained to interpret and

react appropriately to signs such as pressure feedback on the

lines.

36.

Training and experience in

drug administration are essential to ensuring that the

execution is a humane process free from gratuitous and unnecessar pain. The ADC'

personnel and executioners are not properly trained to administer intravenous drugs.

The Particular Chemical Cocktail Chosen by the Director Creates an Unnecessary Risk of Conscious Suffering During Execution

37. The Director of the ADC has arbitrarly selected thee drugs that, in the dosages

combinations, and procedures used, unnecessarily risk subjecting the prisoner to an

excruciatingly painful, tortous death.

38. The first drug, Thopental, is an ultra-short acting barbituate which acts to depress the

central nervous system to produce unconsciousness and anesthesia. Thiopental derives its

utility in surgical procedures from its rapid onset and rapid redistribution through the

body at surgical doses. Typically, Thiopental is used in the induction phase of anesthesia

to temporarily anesthetize patients for suffcient time to, for example, intubate the

trachea.

39. If it is necessar to maintain a patient in a surgical plane of anesthesia for longer than just

a few minutes, physicians tyically use drugs other than Thopental. If Thiopental is going to be used not only to induce, but also to maintain, a surgical plane of anesthesia, a

qualified person must be present to continually monitor the patient to ensure that the

Thiopental has been correctly administered and is maintaining the patient in a state of

unconsciousness. 40. The ADC protocol does not provide for any person, much less a properly trained
individual, to monitor the plane of anesthesia during execution. 41. The Director of the ADC has arbitrarly and needlessly selected a dose of Thiopental of
only 2 grams. Other jursdictions in the United States typically employ considerably larger doses of Thiopental than are used in Arkansas. For example, California administers 5 grams of Thiopental. The lower the dose of Thiopental used, the greater the risk that errors in preparation or administration of the drug wil result in inadequate anesthesia. For example, if a problem arses and half of a 5 gram dose does not reach its target, the prisoner stil receives 2. 5 grams, itself a large quantity. If, however, such an error occurs with the administration of a 2 gram dose, the prisoner receives only 1 gram a small enough quantity to risk consciousness in some condemned prisoners during the course of the execution. There is no legitimate reason for selecting a dose of Thiopental of only 2 grams. 42. The second drug, Pancuronium Bromide, is a neuromuscular blocking agent. Neuromuscular blocking agents are used clinically to induce skeletal muscle relaxation for purposes such as facilitating tracheal intubation or suppressing spontaneous respiration. 43. Neuromuscular blocking agents must be administered with great care and skil because they have no effect on consciousness or the ability to perceive pain. Moreover, the paralysis induced in the patient by the drug wil prevent anyone, even a person with advanced medical training, from ascertaining whether a patient is awake and capable of experiencing pain. Therefore, administration must be accompaned by adequate

anesthesia. 44. The effect of neuromuscular blocking agents in immobilizing patients and masking
external indications of their pain is well known. Patients who have been adminstered neuromuscular blocking agents with inadequate anesthesia have been conscious during
surgery and have reported terrfyng and tortous experiences where they were alert
experiencing pain, yet utterly immobilized and unable to signal their distress. 45. The consequences of erroneous administration of neuromuscular blocking agents is so
profound that at least eighteen states have baned by statute the use of such drugs in the
euthanasia of animals. The A VM never permits the use of neuromuscular blocking
agents in combination with barbituate anesthetics on anmals. In short, the ADC has settled on a protocol and procedure to kil the State s condemned prisoners that is considered too risky and dangerous for the euthanasia of pets. There is no need to risk the conscious suffocation of these prisoners as a result of the administration of neuromuscular blocking agents. Other drugs are available to satisfy Arkansas' statutory requirement for a "paralytic agent" that do not affect respiration. Using these alternate drugs would eliminate the risk that a condemned prisoner wil consciously asphyxiate.
46. The third drug, Potassium Chloride, contains essential blood ions and is tyically
administered medically in trace amounts as a necessar electrolyte. While a certain potassium level is important for normal cardiac electrcal activity, a rapid increase in blood concentration of potassium causes cardiac arrest. Injection of concentrated
potassium activates sensory nerve fibers, causing severe pain as the drug travels though
the venous system. There is universal medical agreement that, without anesthesia, an injection of a potassium chloride overdose would be excruciating.

47. The American Veterinary Medical Association is so confident that death by Potassium

Chloride wil cause unnecessar suffering that it prohibits its use as a euthanasia agent unless the practitioner administering the Potassium Chloride has the skil and training to

assure that the subject to be euthanized has reached a surgical plane of anesthesia.

48. The Arkansas statute does not require the administration of Potassium Chloride; the ADC

has arbitrarly and needlessly added the drug to the protocol and it has thereby increased the risk that executions wil be agonizingly painful.

The Defendants and the ADC Knew, Or Should Have Known, That Their Procedure Involves the Risk of, and has Resulted In, Conscious Suffering, Yet Have Failed to Correct the Execution Protocol to Minimie That Risk

49. The Defendants and the ADC knew, or should have known, that their execution process is

flawed in ways that risk causing conscious suffering but they have deliberately ignored

those risks and failed to make practicable modifications to the process. The Defendants

and the ADC have, or should have been, aware since the commencement of executions by

lethal injection that properly obtained and maintained

access is essential to a humane

procedure free from gratuitous, unnecessar pain, but they have nevertheless continued to

employ unqualified personnel to perorm this crucial par of the procedure.

50. The Defendants and the ADC knew, or should have known, since the commencement of

executions by lethal injection that, in light of the painful drugs that the Director has opted

to use, careful, skilled monitoring of the prisoner throughout the execution to ensure

continued maintenance of a surgical plane of anesthesia is necessar to ensure a humane

procedure free from gratuitous, unecessar pain. Nevertheless, the Defendants and the

ADC have neither provided for such monitoring by adequately trained personnel, nor

altered the design of the execution chamber and equipment to render adequate monitoring

physically possible.

51. The Defendants and the ADC knew, or should have known, since the commencement of executions by lethal injection that, drugs other than neuromuscular blocking agents or can

serve the statutory requirement of paralytic agents without risking that the prisoner wil
slowly, consciously asphyxiate and be unable to signal his distress, and that drugs other than the excruciating painful Potassium Chloride can be utilzed to induce cardiac arest. The Defendants and the ADC have nevertheless continued to employ these drugs

notwithstanding their simultaneous failure to ensure adequate anesthesia..

52. The Defendants and the ADC knew, or should have known, these facts because of the

documented instances of botched executions that they have performed, including those of

Rickey Ray Rector Ronald Gene Simmons, Steven Hil and Chrstina Riggs.

See

Paragraphs 14- 17, supra incorporated by reference as if fully set forth herein. They

knew, or should have know, of these facts because measured postmortem Thopental

blood concentrations, in some past cases, canot be reconciled with consistent

administration of Thopental and, in some cases, are inconsistent with antemortem

unconsciousness. The sum of the available execution data ( witness reports, postmortem Thopental levels, execution duration, weight, and other data) indicates that the ADC

protocol has resulted in a high frequency of failure to effectively anesthetize condemed

prisoners for the duration of their executions.
53. Botched executions involving unecessar conscious suffering are the inevitable result of

a protocol cobbled together in secret by people who are not qualified to conduct what is

essentially the surgical induction of anesthesia. The ADC protocol is flawed at nearly

every turn in that it: (1) uses unqualified personnel to insert

catheters; (2) uses

dangerous and unecessar drugs like neuromuscular blockers) in a reckless manner; (3 )
fails to take steps to assure that a surgical plane of anesthesia and an actual state of unconsciousness are achieved and continue for the duration of the execution before administering painful drugs; and (4) administers a dose of Thiopental that is
unnecessarly dangerously low.
54. The consequence of the ADC protocol is that many people are suffering when they are executed in Arkansas. They are suffering for more that the transitory period necessarly attendant to any death. People are suffering for prolonged periods as result of completely avoidable problems in protocol and procedure. It is possible to conduct execution by lethal injection in a maner that both complies with Arkansas ' statute and is humane , but the Defendants and the ADC have arbitrarly, capriciously, and unnecessarly devised a
protocol for carng out executions by lethal injection that fails to do so.
VII. Claims 55. By subjecting Plaintiff to an arbitrar, capricious and irrational method of execution that
creates an unecessar and signficant risk of inflicting agonizing and prolonged pain, and by designng and administering a process under which they wil inject Plaintiff with
chemicals in amounts, combinations, and in accordance with a protocol that unecessarly
risks conscious suffering and pain in the execution of a sentence of death, Defendants deprive Plaintiff of his rights under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution to be free from cruel and unusual punshment and to be free from arbitrar and capricious processes. 56. By subjecting Plaintiff to an arbitrar, capricious, and irrational method of execution that creates an unecessar and signficant risk of inflicting agonizing and prolonged pain

Defendants, with deliberate indifference to Plaintiffs serious medical needs, violate

Plaintiffs right to be free from cruel and unusual punishment and the unnecessar and

wanton inflction of pain in violation of the Fifth, Eighth and Fourteenth Amendments of

the United States Constitution.

VIII.

Prayer for Relief

57. Wherefore, Plaintiff prays as follows:

58. That ths Honorable Court issue a judgement declarng that the Defendants ' protocols

policies, practices, and acts and omissions as described herein violate Plaintiffs rights as

guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States;

59. That this Honorable Cour permanently enjoin Defendants, their offcers, agents

employees, and successors in office, along with those acting in concert with them, from

engagig in the unawful practices described herein;

60. That ths Honorable Cour retain jursdiction over this cause until the Cour' s order is
cared out; and

61. That this Honorable Court afford any and all other such relief as this Court deems just

proper, and equitable under the circumstances.

Respectfully Submitted

JENNIFFER HORAN
Federal Defend

By:

Little Rock, AR 72201 (501) 324 6113
Counsel for Plaintiff, Terrck Terrell Nooner

 
 Case 5:06-cv-0011 O-SWW-JFF Document 13 Filed 05/19/2006 Page 1 of 4

THIS IS A CAPITAL CASE
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

TERRICK TERRELL NOONER

PLAINTIFF

VS.

No. 5:06CVOOllO SWW/JFF

LARRY NORRIS, Director, Arkansas Department of Correction; GAYLON LAY, Warden, Arkansas Department of Correction; WENDY KELLY, Deputy Director for Health and Correctional Programs, Arkansas Department of Correction; JOHN BYUS, Administrator, Correctional Medical Services, Arkansas Department of Correction; and OTHER UNKNOWN EMPLOYEES, Arkansas Department of Correction

DEFENDANTS

MOTION TO DISMISS Come now the defendants, Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, and all other unnamed employees and agents of the Arkansas Department of Correction, by and through counsel, Mike Beebe, Attorney General, Joseph V. Svoboda, Assistant Attorney General, and Mark Hagemeier, Senior Assistant Attorney General, and for their Motion to Dismiss, state: (1) Plaintiff, Terrick Nooner, is an inmate in the Arkansas Department of Correction under a sentence of death by virtue of his 1996 conviction of capital murder in the Circuit Court of Pulaski County, Arkansas.

Case 5:06-cv-0011 O-SWW-JFF Document 13 Filed 05/19/2006 Page 2 of 4
(2) Nooner filed a direct appeal from his conviction and sentence to the Arkansas Supreme Court. Finding no error, the Arkansas Supreme Court affirmed in Nooner v. State, 322 Ark. 87,907 S.W.2d 677 (1995).
(3) Nooner filed for post-conviction relief in the trial court which, following four hearings, denied relief. Finding no error, the Arkansas Supreme Court affirmed the denial of post-conviction relief in Nooner v. State, 339 Ark. 253, 4 S. W.3d 497 (1999).
(4) Nooner filed a habeas corpus petition under 28 U.S.C. § 2254 in the United States District Court, Nooner v. Norris, case number 5:96CV00495. Judge Stephen Reasoner denied relief and the Eighth Circuit Court of Appeals affirmed in Nooner v. Norris, 402 F.3d 801 (8th Cir. 2005). Nooner's subsequent petition for rehearing and rehearing en bane was also denied by the Eighth Circuit. Nooner filed a petition for writ of certiorari which was denied on May 15, 2006 by the United States Supreme Court, in Nooner v. Norris, case number 05-9830.
(5) Nooner has filed a complaint under 42 U.S.C. § 1983, in which he contends that the defendants' protocols, policies, and practices for executions violate his rights to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments, that the defendant's procedures and policies are arbitrary and capricious under the Fifth and Fourteenth Amendments, and that defendants are deliberately indifferent to his health and safety under the Eighth and Fourteenth Amendments to the United States Constitution.
(6) The compliant should be dismissed because Nooner failed to comply with and exhaust his state administrative remedy under the Department of Correction's grievance policy therefore, is prohibited from filing a complaint under 42 U.S.c. § 1983 in
2

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accordance with the Prison Litigation Reform Act of 1995. 110 Stat. 1321-71,42 U.S.C. § 1997e(a).
(7) The complaint should be dismissed as it is filed outside the statute of limitation for filing under 42 U.S.C § 1983.
(8) The complaint should be dismissed because it violates the doctrine of laches. (9) The complaint should be dismissed as a successive application under 28 U.S.c. § 2244(b)(3)(a), which requires authorization from the appropriate court of appeals before a district court can entertain the application. (10) This motion is accompanied by a brief in support thereof pursuant to Local Rule 7.2 of the Rules of the United States District Court for the Eastern and Western Districts of Arkansas. (1 I) For the foregoing reasons, the complaint should be dismissed under Rule 12(b)(I) of the Federal Rules of Civil Procedure for lack ofjurisdiction over the subject matter by this Court, and under Rule 12(b)(6), for Nooner's failure to state a claim upon which relief can be granted. WHEREFORE, defendants pray that their Motion to Dismiss be granted and for all other proper relief to which they are entitled.
Respectfully submitted, OFFICE OF THE ATTORNEY GENERAL 323 Center Street, Suite 1100 Little Rock, Arkansas 72201 (501) 682-2007 FAX: (501) 682-8203
lsi Joseph V. Svoboda JOSEPH V. SVOBODA
3

Case 5:06-cv-0011 O-SWW-JFF Document 13 Filed 05/19/2006 Page 4 of 4

Arkansas Bar No. 74144 and
lsI Mark Hagemeier
MARK HAGEMEIER Arkansas Bar No. 94127
Attorneys for Defendants

CERTIFICATE OF SERVICE

I, Joseph V. Svoboda, hereby certify that on this ~ day of May, 2006, I electronically filed the foregoing with the Clerk of the Court using the CMIECF system,
which shall send notification of such filing to the following parties:

1enniffer Horan & Julie Brain Assistant Federal Public Defenders 1401 W. Capitol Ave., Suite 490 Little Rock, Arkansas 72201

lsi Joseph V. Svoboda
JOSEPH V. Svoboda

4

Case 5:06-cv-00110-SWW-JFF Document 14 Filed 05/19/2006 Page 1 of 8

THIS IS A CAPITAL CASE
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

TERRICK TERRELL NOONER

PLAINTIFF

VS.

No. 5:06CVOOllO SWW/JFF

LARRY NORRIS, Director, Arkansas Department of Correction; GAYLON LAY, Warden, Arkansas Department of Correction; WENDY KELLY, Deputy Director for Health and Correctional Programs, Arkansas Department of Correction; JOHN BYUS, Administrator, Correctional Medical Services, Arkansas Department of Correction; and OTHER UNKNOWN EMPLOYEES, Arkansas Department of Correction

. DEFENDANTS

BRIEF IN SUPPORT OF MOTION TO DISMISS A. Exhaustion
Terrick Nooner, filed his complaint under 42 U.S.C. § 1983, and he challenges the protocol used in Arkansas executions. Even if this is a cognizable claim under §1983, which defendants deny, I Nooner's complaint nevertheless must still be dismissed for the

I There is currently pending before the United States Supreme Court, in the case of Hill v. McDonough, USSC # 05-8794, the issue whether, under Nelson v. Campbell, 541 U.S.
637 (2004), a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 U.S.C. § 1983. The resolution of this issue will have an immediate and potentially conclusive effect on the pending
proceedings. Hill was orally argued on April 26, 2006, and, given the Supreme Court's
usual practice and procedure, a decision will likely be rendered no later than June 26, 2006, the final day of the Court's current term.

Case 5:06-cv-0011 O-SWW-JFF Document 14 Filed 05/19/2006 Page 2 of 8
simple reason that he has not exhausted his available state administrative remedies under the Arkansas Department of Correction's grievance procedure. In fact, he has not only failed to exhaust, he has also failed to even commence such proceedings.
The Prison Litigation Reform Act of 1995 (Act) imposes limits on the scope and duration of preliminary and permanent injunctive relief, including a requirement that, before issuing such relief, an inmate must exhaust available state administrative remedies
before bringing a § 1983 action challenging the conditions of his confinement. 101 Stat.
1321-74,42 U.S.C. § 1997e(a) (No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.). Although the Act provides for injunctive relief, it also includes a requirement that, before issuing such relief, "[a] court shall give substantial weight to any adverse impact on... the operation of a criminal justice system caused by the relief." 18 U.S.C. § 3626(a)(1); accord, § 3626(a)(2). In fact, the Act mandates that a district court "shall," on its own motion, dismiss "any action brought with respect to prison conditions under section 1983 of this title ... if the court is satisfied that the action is frivolous, malicious, or fails to state a claim upon which relief can be granted." § 1997e(c)(1). See also, Nelson v. Campbell, 541 U.S. 637 (2004).
Nooner is required to provide proof that he exhausted all administrative remedies before he can bring a § 1983 action. "Congress has mandated exhaustion," eliminating the courts' discretion to excuse exhaustion. Booth v. Churner, 532 U.S. 731 739, 741 (2001). See also Porter v. Nussle, 534 U.S. 516 (2002) (prisoners who claim denial of their federal rights while incarcerated must meet Section 1997e(a)'s exhaustion
2

Case 5:06-cv-00110-SWW-JFF Document 14 Filed 05/19/2006 Page 3 of 8
requirement before commencing a civil rights action.) Likewise, the Eighth Circuit, discussing Booth and Porter, has held that administrative remedies must be exhausted before an inmate files a § 1983 action. Johnson v. Jones, 340 FJd 624, 627-628 (8th Cir. 2003). "If exhaustion was not completed at the time of filing, dismissal is mandatory." Id. at 627. Further, the plaintiff is required to file "a proper grievance against all defendants." Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002) (emphasis added).
It is clear that the United States Supreme Court has determined that a prisoner must exhaust his claims before filing a § 1983 lawsuit. As the Supreme Court explained in Porter, supra, the rationale for the exhaustion requirement is to allow prison officials the time and opportunity to review and address complaints internally before the prisoner is allowed to initiate a federal § 1983 claim. Porter at 524-25. In addition, the Eighth Circuit has held that when there is a failure to exhaust as to any claim set out in the complaint, the entire action must be dismissed. Graves v. Norris, 218 F.3d 884 (8th Cir. 2000). "When mUltiple prison condition claims have been joined, as in this case, the plain language of § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims." Id. at 884. "The statute's [42 U.S.C. § 1997e(a)] requirements are clear: If administrative remedies are available, the prisoner must exhaust them." Chelette v. Harris, et aI., 229 F.3d 684, 688 (8th Cir. 2000). Because Nooner has failed to exhaust his remedies, his complaint must be dismissed.
B. Statute of Limitation Nooner was convicted and sentenced to die by lethal injection in 1996. His direct appeal and post-conviction proceedings in state court were all concluded in 1999, and whatever stays of executions were entered in connection with those proceedings
3

Case 5:06-cv-00110-SWW-JFF Document 14 Filed 05/19/2006 Page 4 of 8
automatically terminated then. Rule 10(c) of the Arkansas Rules of Appellate Procedure - Criminal provides for the dissolution of any stay upon affirmance on direct or postconviction review. No stay of execution was ever entered in connection with Nooner's federal habeas corpus proceedings, so Nooner has been the potential subject of execution since 1999. Lastly, the Arkansas Department of Correction has used lethal injection in all executions performed since 1983 by law. See Ark. Code Ann. § 5-4-617.
Congress did not prescribe a specific statute of limitation for actions brought under 42 U.S.C. § 1983. The controlling limitation period for such an action is, therefore, the most appropriate one provided by state law. Johnson v. Railway Express Agency, 421 U.S. 454, 462 (1975). In Arkansas, § 1983 claims are subject to the 3-year limitation found in Ark. Code Ann. § 16-56-105. See Weston v. Bachman, 282 F.2d 202 (8th Cir. 1982), cert. denied, 464 U.S. 824 (1983); Whittle v. Wiseman, 463 F.2d 1128 (8th Cir. 1982). Since Nooner has know from the date of his death sentence in 1996 that he would be executed by lethal injection, defendants contend this current action is time barred by § 1983 's 3-year statute of limitations.
Even if Arkansas' 5-year statute of limitations under Ark. Code Ann. § 16-56-115 applied to Nooner's current action, that limitations period, too, had run long before Nooner filed his current § 1983 action. See Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970) (action against Arkansas State Police officers for alleged deprivation of civil rights could be covered by either Arkansas' 3-year or 5-year statute oflimitation).
C. Laches As previously stated, lethal injection has been the method of execution in Arkansas since 1983. Since 1983, the protocol used for executions has basically remained unchanged. Nooner has been under a sentence of death by lethal injection since
4

Case 5:06-cv-00110-SWW-JFF Document 14 Filed 05/19/2006 Page 5 of 8
his conviction ten years ago, and a total of sixteen executions have been carried out during those ten years. Nevertheless, Nooner waited until he had exhausted his state challenges to his sentence, including his post-conviction challenges, and one complete round of federal habeas2 before challenging the State's execution protocol.
The doctrine of laches precludes a lawsuit when a plaintiff is responsible for a unreasonable and unexcused delay in asserting his claim, resulting in prejudice to the defendant. Baker v. Baker, 951 F.2d 922, 980 (8th Cir. 1991); Goodman v. McDonnell Douglass Corporation, 606 F.2d 800, 804 (8th Cir. 1979); cert. denied, 446 U.S. 913 (1980). Whether the doctrine of laches should apply in a particular cause of action is a matter within the sound discretion of the trial court. Goodman, 606 F.2d at 840. The equitable doctrine of laches should be used to reach "a just result." EEOC v. Liberty Loan Corp., 584 F.2d 853,856 (8th Cir. 1978), - (citing Albemarle Paper Company v. Moody, 422 U.S. 405,424-25 (1975». In examining the unreasonable and unexcused delay prong of the laches standard, the court considers "both the length of the delay and the plaintiffs reasons for the delay." Whitfield v. Anheuser-Busch, Inc., 820 F.2d 243, 253 (8th Cir. 1987).
Nooner's delay in challenging the State's protocol is both unreasonable and unexcused. He had the means and reason to make this challenge ten years ago. The delay has also prejudiced the defendants in responding to various allegations. Nooner has provided select quotes from newspaper articles from alleged eyewitnesses to past executions as a means to support an otherwise unsupported opinion that the present
2 Nooner's petition for certiorari was pending before the United States Supreme Court when the current complaint was filed but certiorari has since been denied.
5

Case 5:06-cv-00110-SWW-JFF Document 14 Filed 05/19/2006 Page 6 of 8
protocol might cause undo pain and suffering. Even if defendants could locate and produce eyewitnesses3 to and/or participants in past executions, the passage of time would make such testimony less than reliable, and therefore, less helpful to the court. "[T]he 'eleventh hour' tactic used by counsel in this matter is not consistent with a search for truth and justice." Bolder v. Delo, 985 F.2d 941 (8th Cir. 1993).
D. Successive Habeas Corpus Petition Nooner's complaint is a habeas corpus petition in every sense but name. This Court should dismiss the § 1983 complaint on the grounds that Nooner is attempting to circumvent the prohibition against successive habeas corpus petitions under Gomez v. United States District Court, 503 U.S. 653 (1992); Lomchar v. Thomas, 517 U.S. 314 (1996) (interpreting Gomez to mean that "habeas rules would apply even if a § 1983 [was] also a proper vehicle [for the] claim."). "Section 1983 must yield to the more specific federal habeas statute, with its attendant procedural and exhaustion requirements, where an inmate seeks injunctive relief challenging the fact of his conviction." Nelson, 541 U.S. at 643. Such claims fall within the "core" of habeas corpus and are, thus, not cognizable when brought pursuant to § 1983. ld.
Federal courts cannot allow prisoners to circumvent the limitation of28 U.S.C. § 2244(b) by attaching labels other than "successive application" to their pleadings. See Gonzalez v. Crosby, _ _ U.S. _ _, 125 S.Ct. 2641, 2647-48 (2005); Williams v. Hopkins, 135 F.3d 333, 336 (8th Cir. 1997) (relying on McCleskey v. Zant, 499 U.S. 467 (1991) in holding that, regardless of this label, a last minute request for equitable relief is
3 Willis Sergeant and M. D. Reed, the wardens who had direct supervision and responsibility for all but the two most recent executions in the past ten years, have both retired and are no longer employed by the Arkansas Department of Correction.
6

Case 5:06-cv-00110-SWW-JFF Document 14 Filed 05/19/2006 Page 7 of 8
the functional equivalent of a habeas application. Challenges that have as their express goal to delay execution of that sentence, are in fact challenges that seek to interfere with the sentence itself, and thus, are properly construed as a petition for habeas corpus). In re Sapp, 118 FJd 460, 462 (8th Cir. 1997); Williams V Hopkins, 130 F.3d at 336; Felker v. Turpin, 101 F.3d 95, 96 (11 th Cir. 1996). The law is clear on this point; a district court simply cannot entertain a second or successive habeas petition in the first instant - no matter how the petition may be styled. See Norris v. Nance, 429 F Jd 1194 (8th Cir. 2005) (order vacating a stay of execution and dismissing § 1983 application that constituted functional equivalent of a second or a successive habeas petition).
Respectfully submitted, OFFICE OF THE ATTORNEY GENERAL 323 Center Street, Suite 1100 Little Rock, Arkansas 72201 (501) 682-2007 FAX: (501) 682-8203
/sl Joseph V. Svoboda JOSEPH V. SVOBODA Arkansas BarNo. 74144 and /s/ Mark Hagemeier MARK HAGEMEIER Arkansas BarNo. 94127 Attorneys for Defendants
CERTIFICATE OF SERVICE
I, Joseph V. Svoboda, hereby certify that on this ~ day of May, 2006, I
electronically filed the foregoing with the Clerk of the Court using the CMIECF system, which shall send notification of such filing to the following parties: Jenniffer Horan &
7

Case 5:06-cv-0011 O-SWW-JFF Document 14 Filed 05/19/2006 Page 8 of 8

Julie Brain Assistant Federal Public Defenders 1401 W. Capitol Ave., Suite 490 Little Rock, Arkansas 72201

Is/ Joseph V. Svoboda
JOSEPH V. Svoboda

8

 
 Case 5.06-cv-00110-SWW Document 20 Filed 06/02/2006 Page Iof 20

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

TERRICK TERRELL NOONER,

Plaintiff

v.

Civil Action No. 5:06-cv-00110-SWW

LARRY NORRIS, et al.,

Defendants

RESPONSE IN OPPOSITION TO MOTION TO DISMISS

On May 1, 2006, Plaintiff, Terrick Terrell Nooner, initiated the instant action pursuant to 42 U.S.C. § 1983, challenging the constitutionality of the lethal injection protocol selected and used by Defendants for executions in the State of Arkansas. On May 19, 2006, Defendants filed their Motion to Dismiss, [Document 131, and Brief in Support thereof, [Document 141, wherein they urge this Court to dismiss the action under Fed. R. Civ. P. 12(h). None of the four grounds upon which Defendants urge dismissal has merit, and the Motion should accordingly he denied.
A motion to dismiss under Fed. R. Civ. P. 12(b) should he denied "unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle him to relief." Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). See also Mattes v. ABC Plastics Inc., 323 F.3d 695 (8th Cir. 2003). A complaint is to be construed liberally and in the light most favorable to the plaintiff, thereby rendering dismissal appropriate only "in the unusual case in which a plaintiff includes allegations that show

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 2 of 20
on the face of the complaint that there is some insuperable bar to relief." Schmeddirzg, 187 F.3d at 864, (citing Branzlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)). Accordingly, a party seeking to dismiss a complaint under Fed. R. Civ. P. 12(b) bcars a heavy burden, one that the Dcfcndants here have failed to meet.
I. DEFENDANTS HAVE FAILED TO MEET THEIR BURDEN OF PLEADING AND PROVING THE AFFlRMATIVE DEFENSE OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES A. Defendants Have Failed To Plead, Much Less Prove, Facts Sufficient To Establish A Failure To Exhaust
In their Motion and Brief in Support, Dcfendants first assert that Mr. Nooncr's Complaint should be dismissed based on an alleged failurc Lo comply with the
requirement of the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. 5
1997e(a), that a prisoner cxhaust available administrative remedies bcfore filing suit in federal court. (Motion at 2; Brief at 1-3.) Defendants urge the Court to grant the Motion on this ground because Mr. Nooner "is required to provide proof [sic] that he exhausted
all administrative remedies before he can bring a 5 1983 action," and has not done so
(Motion at 2.) To the contrary, failure to exhaust available administrative remedies under the
PLRA is an affirmative defense under Fed.R.Civ.P. 8(c), and Defendanls have the burden of pleading and proving it. Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001)(citing Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999)).' See also Nerness v. Johnson, 401
' Since thc Eighth Circuit followed the Seventh Circuit in its dccision in Foulk in
200 1, its position has been adoptcd by a majority of the circuit courts of appeal who havc

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 3 of 20
F.3d 874, 876 (8th Cir. 2005)(same). Bare and conclusory allcgations of lack of exhaustion are insufficient to mcet this burdcn. Wheeler v. Prince, 3 18 F.Supp.2d 767, 771 (E.D.Ark. 2004).
Defendants' submissions contain nothing but the broad, conclusory allegation that Mr. Nooner has failed to commence or completc proccedings under the Arkansas Department of Correction's grievance procedure. (Brief at 2.) It is important to note that the PLRA requires exhaustion of only thosc administrative remedies that are "available" to the plaintiff. See Porter v. Nussle, 534 U.S. 516, 524 (2002)("No such action shall be brought. . . until such administrative remedies as are available are cxhaustcd")(quoting 42 U.S.C. § 1997e(a)((emphasis added)). Defendants fail to plead any facts whatsoever to establish that there was an administrative remedy available to Mr. Nooner, either under the prison grievance procedure or otherwise, or to show the steps that Mr. Nooner was required, and supposedly failed, to take. See, e.g., Freenzaiz v. Snyder, 2001 W L 515258 (D.Del.)(denying motion for summary judgment on grounds of alleged non-exhaustion where defcndants failed to show that there was an actual administrative remedy available for plaintiff to exhaust).
This glaring omission is undoubtedly attributable to the fact that there indeed was
addressed the question. See Anderson v. XYZ Correctional Health Services Inc., 407
F.3d 674, 677 (4th Cir. 2005); Wyatt v. Terhune, 3 15 F.3d 1108, 1119 (9th Cir. 2003); Casanova v. DuBois, 289 F.3d 142, 147 (1st Cir. 2002); Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Only the Tenth and Sixth Circuits have held that the plaintiff is responsible for pleading exhaustion. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209 (10th Cir. 2003); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998)(per curiam).

Case 506-cv-00110-SWW Document 20 Filed 06/02/2006 Page 4 of 20
no administrative procedure available to Mr. Nooner to seek redress of the claims that form the basis for the instant action. See Section I. B, infra. Regardless of the reason for thc inadequacy of the pleading, however, the deficiency precludes this Court from granting the Motion to Dismiss on the ground of failure to exhaust administrative remedies under the PLRA.
B. There Was No Administrative Remedy Available to Mr. Nooner Because The ADC Inmate Grievance Procedure Lacks Authority To Provide Any Relief Or Take Any Action On His Claims a. Only the Director of the ADC Has the Authority to Change the Lethal Injection Protocol and H e I-Ias No Role in the ADC's Administrative Grievance Process
There was in fact no administrative remedy available for Mr. Nooner's claims because the only individual who has the authority to alter the lethal injection protocol, the Director of the Department o f Corrections, takes no part in the A D C Inmate Grievance Procedure. As noted above, the PLRA requires exhaustion of such administrative
remedies as are available to the prisoner. 42 U.S.C. 5 1997e(a) (1994 ed., Supp. V). The
United States Supreme Court addressed the meaning of the phrase "as are available" under the PLRA in Booth v. Churner, 532 U.S. 731, 736 (2001). Mr. Booth, a Pennsylvania prison inmate, filed a claim for relief under 42 U.S.C. $ 1983 seeking monetary damages for an incident involving excessive force by corrections officers. Id. at 734. The Pennsylvania prison's grievance procedure provided for review of claims of excessive force, but it had no policy for recovery of money damages. Id. Mr. Booth argued that, because the grievance procedure was incapable of providing the monetary

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 5 of 20
damages he sought, there was no administrative remedy available to exhaust. Id. at 735
Before interpreting the meaning of availability in this context, the Court carefully
framed the issue before it:
The meaning of the phrase "administrative remedies . . . available"
is the crux of the case, and up to a point the parties approach it with agreement. Neither of them denies that some redress for a wrong is presupposed by the statute's requirement of an "available" "remedy"; neither argues that exhaustion is required where the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint. The dispute here, then, comes down to whether or not a remedial scheme is "available" where, as in Pennsylvania, the administrative process has authority to take some action in response to a complaint, but not the remedies action an inmate demands to the exclusion of all other forms of redress.
Id. at 736. The Court recognized that a grievance system that affords the inmate no
possibility of relief leaves the administrative officers with "no authority to act on the
subject of the complaint, leaving the inmate with nothing to exhaust." Id. at n.4. See also
Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004)("To be 'available' under the PLRA,
a remedy must afford 'the possibility of some relief for the action complained of"')(citing
Booth, 532 U . S . at 738). Because the Pennsylvania prison's administrative process had
authority to take at least some action in response to Mr. Booth's complaint, the Court held
that a grievance procedure was, in fact, "available" to Mr. Booth for purposes of the
PLRA's exhaustion requirement. Id. at 739
Quite the opposite is true for Mr. Nooner. The essence of Mr. Nooner's claims is
that the particular method of execution by lethal injection that Defendants have adopted
and propose to employ subjects him to a substantial risk of suffering excruciating pain

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 6 of 20
and torture during his execution that is gratuitous and unnccessary in violation of the Constitution. Under Arkansas law, the only person who has thc authority to act on a complaint about the protocol and to order that changcs be made to it is Defcndant Larry
Norris, Director of the Arkansas Department of Correction. See Ark. Code Ann. 5 5-4-
617(a)(2)("The Director of the Department of Correction shall determine the substances to be uniformly administered and the procedures to be used in any execution"). The statute is unequivocal, and does not even permit the Director to delegate this function to a subordinate under his supervision.
However, the Director has no role in the ADC Inmate Grievance Procedure, which is administered entirely by other ADC staff who have no such authority. The procedure, which is set forth in ADC Administrative Directive 04-01, has three steps: informal resolution, grievance to wardcn and finally appeal to the deputylassistant director of ADC. According to the Administrative Directive, "[tlhe DeputyIAssistant Director will respond in writing to the inmate concerning the decision within 30 working days. This is
the final level for the appeal process." Id. at 9 IV.G.5. (emphasis added). The
Directive goes on to state explicitly: "The Director of the Department of Correction is not routinely involved in the Inmate Grievance Procedure. No appeals should be sent to the Director." Id. (emphasis added).
The Administrative Directive notes that the Director may choose to intervene in the grievance process at his discretion, id., but there is no procedure for seeking redress from the Director for any complaints of any nature. Because there is no individual

C a s e 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 7 of 20
involved in any stage of the grievance process who has the lawful authority to respond to or provide any relief for his challenge to the ADC's lethal injection protocol, Mr. Nooner had no administrative remedy to exhaust. Booth, 532 U.S. at 736 n.4. See also Brown v. Crawfovd, 408 F.3d 1072, 1030-31 (8th Cir. 2005)(Byc, J., dissenting from denial of motion for stay of execution)(noting that plaintiff had no administrative remedy available to exhaust because director of department of corrections, the only person empowered to change lethal injection protocol, played only limited appellate role in prison grievance process).
h. Mr. Nooncr's execution under the lethal injection protocol chosen by the Director is an anticipated event and therefore is non-grievable by the ADC's Administrative Grievance Process
If a plaintiff's complaint is deemcd "non-grievablc" and excluded from thc administrative grievance process on that basis, the plaintiff has no administrative remedy for the complaint and therefore nothing to exhaust under the PLRA. See, e.g., Fveenzan 1). Snyder, 2001 WL 5 15258 (D.Del.)(finding no administrative remedy available to plaintiff because his claims were non-grievable under the prison system); Mulliizs V . Snzitlz, 14 F.Supp.2d 1009, 1012 (E.D.Mich. 1998)(same); Torrence v. Pesaizti, 239 F.Supp.2d 230, 234 n.4 (D.Conn. 2003)(ordering further briefing and evidence on question of whether plaintiff's claim is a non-grievable issue under applicable Administrative Directive and thus had no remedies which may be exhausted); Mavtilz v. Crall, 2006 W L 515530 at *9 (W.D.Ky.)(noting that if issucs are designated non-grievablc, no grievance mechanism is available and there is no exhaustion barrier to filing suit). Mr. Nooner's objection to the

C a s e 5:06-cv-00110-SWW Document 20 Filed 0610212006 Page 8 of 20
Defendant's lethal injection protocol is just such a claim. The ADC Inmate Grievance Procedure provides inmates in its custody with a
procedure for the resolution of "complaints, needs, and other problems." Ark. Dep't of Corr. Admin. Directive 04-01 § I. (Feb. 1, 2004). The procedure is available to address a variety of prisoner complaints, but expressly excludes those issues designated as "nongrievable matters" from administrative review. Id. at § 1II.E. One o f the categories of claims that are considered non-grievable is "[alnticipatcd events (i.e. scheduled events or
activities which may occur in the future)." Id. at 3 III.E.6.
Mr. Nooner's claim, that his execution in accordance with the unconstitutional lethal injection protocol selected by the Director will likely subject him to gratuitous pain and suffering, is a quintessential example of an "anticipated event." Mr. Nooner has not suffered any harm yet; rather, he seeks to prevent that harm before it occurs because he will obviously have no remedy or redress once his execution is underway. Thus there can bc little qucstion that Mr. Nooner's claim falls squarely into the category of anticipated events, thereby rcndering his complaint a non-gricvablc matter under Ark Dep't of Corr. Admin. Directive 04-01 § III.E.6. The Department of Correction's grievance procedure is therefore unavailable to him for this reason, also, and so there is no requirement under the PLRA that he attempt to exhaust the procedure.
C . There Was No Administrative Remedy Available to Mr. Nooner Because He Is Prevented From Appropriate Use of the Grievance Process By His Debilitating Mental Illness
Even if the Inmate Grievance Procedure was generally available to A D C inmates

Case 5.06-cv-00110-SWW Document 20 Filed 0610212006 Page 9 of 20
to seck redress of claims regarding the lethal injection protocol, the Procedure is not available to Mr. Nooner becausc he is prevented from effcctivcly utilizing thc process by his severe mcntal illness and incompctence. One of the prominent symptoms of Mr. Nooner's mental illness is a fixed delusional system that prevents him from rccognizing the rcality of his own impending execution, much less comprehending that filing a prison grievance could be nccessary to avoid a tortuous and agonizing death. Mr. Nooner's incompetence would thus excuse him from exhausting any otherwise availablc
administrative mechanism .
The PLRA's phrase "such administrative rcmedies as are available" mcans those administrative remedies that are "immediately utilizable" by and "accessible" to the inmate. Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003); accord Miller v. Novris, 247 F3d 736, 740 (8th Cir. 2001)(applying the same dictionary definition of the term "available" to interpret the PLRA's language "as are availahle")(citations omitted). In
Days, a Texas prison inmate filed suit against prison officials under 42 U.S.C. 5 1983
prior to submitting a written complaint to the prison's gricvance officer. Days, 322 F.3d at 866. The court found that a wrist injury prevented Mr. Days from filing a timely gricvance request, and gricvance officers wcre inattcntivc to his oral requcsts for rclicf, thereby rendering any gricvance procedure inaccessiblc to him. Id. at 866-867. The Fifth Circuit recognized that "one's personal inability to acccss the grievance system could render thc system unavailable" for purposes of thc PLRA's exhaustion requircment. Id. at 867 (citing Ferrington v. Louisiaiza Dep 't of Correctioizs, 315 F.3d 529 (5th Cir. 2002)).

Case 5:06-cv-00110-SWW Document 2 0 Filed 06/02/2006 Page 1 0 of 20
Given his illjury and his subsequent attempts to access the grievance process, the court held that Mr. Days had exhausted the administrative remedies that were available to him. Id. at 868. See also Pavey v. Conley, No. 05-2004, slip op. at 15-17 (7th Cir. Fcb. 1, 2006)(where inmate's broken arm prevented him from completing grievance form and grievance officers were unwilling to provide assistance in the matter, administrative remedies were unavailable to the inmate and exhaustion was excused).
Here, Mr. Nooner suffers from an disability much more severe than a broken wrist. Mr. Nooner suffers from schizophrenia. Dr. Xavier Amador, Ph.D, an adjunct professor of Clinical Psychology at Columbia University with extensive experience with individuals with schizophrenia, has concluded that Mr. Nooner meets the criteria for a diagnosis of Schizophrenia, Disorganized Type. Mr. Nooner's most prominent symptoms are disordered thought and speech, and bizarre, fixed delusions. In 2002, at a hearing on Mr. Nooner's competency to waive his rights to federal habeas corpus review, Dr. Richart DeMeir, clinical psychologist at the Federal Bureau of Prisons Medical Center in Springfield, testificd that Mr. Nooner was mentally ill to the point of incompetency.2 According to Dr. DeMeir, Mr. Nooncr's disorder is characterized by severe thought disorder and fixed, long-standing delusions. H e manifested scvere disorganization of speech, which was rambling and illogical. His thoughts were irrational, rarely tied together in a way that could be understood. He was unable to provide any logical or
2Dr.DeMeir felt that he had insufficient information to enable him to diagnose the specific disorder with which Mr. Nooner suffers and therefore entered a provisional Axis I diagnosis of Psychosis NOS.

Case 5:06-cv-00110-SWW Document 20 Filed 0610212006 Page 11 of 20
rational explanation for his desire to waive his appeals, insisting that he does not want to die but wants to have his execution scheduled because he believes that this will lead to his exoneration by the clemency board. He exhibited numerous delusions that were so convoluted that Dr. DeMeir was unable to cxplain them. Dr. DeMeir explained that it is extremely difficult, if not impossible, to feign such disordered speech; he did not know of anyone, even psychologists, who could successfully do so.
Mr. Nooner's delusions prevent him from understanding that his execution is imminent. They prevent him from realizing that he will die according to the Arkansas Department of Correction's lethal injection protocol, which creates a substantial and unnecessary risk that he will be fully conscious and in agonizing pain for the duration of the execution process. Sadly, the delusions prevent him from knowing that the Constitution provides a remedy for such cruel and unusual punishment. Accordingly, Mr. Nooner is unable to utilize the prison's grievance procedure to seek redress of his claims, and no administrative remedy is availablc to him. C ' Miller, 247 F.3d at 740. (where the allegations contained in prisoner's complaint averred that prison officials prevented him from utilizing the grievance process, administrative remedies were unavailable for purposes of the PLRA). Therefore, the PLRA's exhaustion requirement is inapplicable to Mr. Nooner.
D. Mr. Nooner Has Substantially Complied With The PLRA's Exhaustion Requirement
In light of the inability of anyone other than the Director of the ADC to provide redress for Mr. Nooner's claim, and Mr. Nooner's own inability to pursue the established

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 12 of 20
Inmate Grievance Process, undersigned counsel undertook to inform the Director o f Mr. Nooner's claim and provide him with an opportunity to respond by contacting the Director on Mr. Nooner's behalf. These efforts have resulted in substantial compliance with the PLRA's administrative exhaustion requirement sufficient to satisfy the statutory provision. See Nyhuis v. Reno, 204 F.3d 65, 77-78 (3rd Cir. 2000)("we note our understanding that compliance with the administrative remedy scheme will be satisfactory i f it is substantial")(eiting Miller v. Tanner, 196 F.3d 1190, 1194 ( I 1 th Cis. 1999)); Freeman v. Snyder, 2001 W L 515258 at *8 (D.Del.)(findingthat plaintiff substantially complied with PLIIA's exhaustion requirement where he made repeated oral requests to be moved to a different cell prior to assault, receivcd conflicting information about the proper procedure, and was unable to timely file a grievance after the assault due to injury).
On April 21, 2006, undersigned counsel wrote to the Defendant Larry Norris, Director o f the Arkansas Department o f Correction, informing him o f Mr. Nooner's incompetence and his inability to use the inmate grievance procedure as a means o f protecting his legal interests. Counsel's letter advised the Director o f Ms. Nooner's claim that the current procedure for executions by lethal injection creates a substantial risk that Mr. Nooner will not be properly anesthetized for the duration o f his impending execution, thereby subjecting him to an arbitrary, capricious, and irrational method o f execution in violation o f the United States Constitution. A t the conclusion o f the letter, counsel requested that the Director modify the execution process to comply with accepted

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 13 of 20
standards of medical care and relevant provisions of the Arkansas state statute. Counsel also provided a phone numbcr and address and invitcd Mr. Norris to call with any questions or requests for further information. Mr. Norris accepted delivery of the letter from the Federal Express carrier on April 24, 2006.
In keeping with the Department of Correction's Administrative Directive, counsel should have received a response within three working days of receipt of the letter. Ark. Dep't of Corr. Admin. Directive 04-01 § IV.E.S.(declaring that inmates will receive a response to informal grievance rcquests within 3 working days or within 24 hours if the request qualifies as an emergency). However, after five working days had passed from Mr. Norris's receipt of the letter, undersigned counsel had still received no response. Counsel thcreafter filed the instant action on May I, 2006.
In this manner, undersigned counscl atteinpted to resolve the issues presented in this Con~plainwt ith the Dcfcndant Dircctor of thc Dcpartment o f Correction prior to
filing suit under 42. U.S.C. 5 1983. Undersigned counsel's effort satisficd thc concerns
that lead to thc enactment of the PLRA, for the Director, the only person with authority to act on the complaint, was "afforded ... time and opportunity to addrcss [thc] complaint[]
internally before ... the initiation of a federal case." Poiater 1). Nussle, 534 U.S. 516, 525
(2002). Additionally, on May 26,2006, following commencement of the instant action,
undersigned counscl finally received a response to her letter to Defendant Norris, in the form of a letter from Assistant Attorney General Joseph V. Svohoda, indicating that

Case 506-cv-00110-SWW Document 20 Filed 06/02/2006 Page 14 of 20
Defendant Director Norris received counsel's letter and asked the Attorney General to respond. The letter reads in relevant part:
While Mr. Norris is aware that several states' protocol has been, and some currently are, the subject of litigation, he believes the protocol used currently insures the necessary anesthetization for the duration of the execution procedure and satisfies Constitutional requirements. (Letter from Joseph Svoboda to Julie Brain, Dated May 25, 2006.) The quotcd passage indicates that Defendant Director Norris has considered the merits of Mr. Nooner's claim and rcsolvcd thc issue adversely to Mr. Nooner. The only conccivablc avcnue for redrcss of the claim has thcreforc been exhausted 11. BECAUSE MR. NOONER'S EXECUTION HAS ONLY RECENTLY
BECOME IMMINENT, NEITHER THE STATUTE OF LIMITATIONS NOR THE DOCTRINE OF LACHES BARS THIS ACTION Contrary to Defendants' assertions, (Brief at 3-4), Mr. Nooner's claim is not subject to a statute of limitation because his Complaint seeks only declarative and injunctive relief. It is well settled that where, as here, a plaintiff seeks only equitable remedies, the plaintiff's claim is subject only to the doctrine of laches and not to a statute of limitations. Goodman v. McDoimell Douglas, 606 F.2d 800, 805 (8th Cir. 1979)(citing Holmbevg v. Avnzbrechf, 327 U.S. 392, 396 (1946)). 1x1 order for the doctrine of laches to bar a plaintiff from seeking equitable relief, "the plaintiff must be guilty of unreasonable and inexcusable dclay that has resultcd in prejudice to thc defendant." Id. The cxistcncc and Icngth of any analogous statutes of limitation is but one elcment of the factors to be considered in determining whether any delay that may have occurred should be deemed

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 15 of 20
unreasonable. Id. In any event, it is clear under either a laches o r a statute of limitations analysis that Mr. Nooner diligently and timely prosecuted the instant action as soon as it became ripe for review.
In his Complaint, Mr. Nooner does not attack the constitutionality of execution by lethal injection in general, but rather objects to the specific procedure that thc Defendant Director of the Department of Correction currently uses to carry out executions by lethal injection. Mr. Nooner could not know with any degree of confidence exactly which procedure he would be subject to until his execution became imminent, at which time the likelihood that the Defendants would suddenly changc their procedure and render his challenge moot became d e minimis. Under a statutory scheme such as that in place in Arkansas, which places the entire authority for determining the details of the lethal iujection protocol in the Director of the Department of Correction as an administrative matter, the precise drugs, dosages, combinations and procedures are subject to change at
thc whim of the Director at any time. See Ark. Code Ann. 5 5-4-617(a)(2)("The Director
of the Department of Correction shall determine the substances to b e uniformly administered and the procedures to be used in any execution").
Not only is the protocol subject to change administratively, judicial action may potentially lead to dramatic changes in the procedures to which a condemned person is subject. See, e.g.,Morales v. Hiclcmarz, 415 F.Supp.2d 1037, 1047 (N.D. Cal. 2006) (conditionally denying preliminary injunction if State will agree to change lethal injection protocol to one that uses barbiturates only or one that includes monitoring by person

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 16 of 20
trained in general anesthesia); Bvown v. Beck, 445 F.3d 752, 753-54 (4th Cir. 2006)(Michael, J., dissenting)(describing district court's approval of change in North Carolina's lcthal injection protocol to include usc of bispcctral indcx monitor to monitor consciousness)
Indeed, Arkansas's statute provides for automatic substitution of electrocution as the manner of execution in the event that lethal injection is deemed unconstitutional per
sc, see Ark. Code Ann. S 5-4-617(b), and so not only the specific procedures but even the
overall means of causing death is potentially subject to change. See also Fierro v. Gomez, 77 F.3d 301, 309 (9th Cir. 1996)(holding that California's practice of conducting executions by lethal gas violates Constitution; method of execution thereafter changed to lethal injection, see Cal. Penal Code Ann. §3604(b)(West Supp. 1996)).
Under such circumstances, a challenge to a particular execution protocol cannot be deemed ripe for adjudication until the plaintiff's execution is imminent. Cooey v. Tufi, 2006 WL 1207982 (S.D.Ohio)('"[T]he statute of limitations on claims raising specific challenges to a method of execution, but otherwise conceding that the execution can be carried out in a constitutional manner if the specific challenges arc addressed, begins to run when the execution bccomcs imminent and the plaintiff knows or has reason to know
of the facts giving rise to his specific challenges.' ... This Court has rcasoncd that those
two conditions are met when the plaintiff has exhausted all of his state and fedcral avcnues of relief, i.e., when thc United Statcs Supreme Court denies certiorari in the plaintiff's habeas corpus proceedingsM)(quotingprevious order o f court)

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 17 of 20
Such a rule is consistent with established fcdcral law governing accrual of claims for relief. See, e.g., Slaaten v. Uttited States, 990 F.2d 1038 (8th Cir. 1993)("A claim 'accrues' when the plaintiff knows or reasonably should know both the existencc and cause of the injuryV)(citingUnited States v. Kubviclc, 444 U.S. 11 I , 121-23 (1979)). Indeed, a contrary rule would potentially lead to multiplc challenges to multiple methods and procedures over many years, none of which the plaintiff would ultimately be subjected to, in order to cnsure that the true claim is timely. Such unncccssary and pointless consumption of judicial rcsourccs is contrary to ends of justicc.
The imminence of Mr. Nooner's execution was realized April 26, 2006, whcn Mr. Nooner's pctition for writ of certiorari was scheduled for conference by thc United States Suprcme Court for May 11, 2006. Counsel for Mr. Nooner reasonably predicted that the writ of certiorari would be denied May 15,2006, and as a rcsult, counscl immediately began final preparation of the Complaint in the instant case. On May 1,2006, counsel filed the instant suit to prevent Mr. Nooner from being subject to the unconstitutional execution procedures currently in place at the Arkansas Department of Corrcction. Thc action was thus initiated even before certiorari was actually denied, which occurred as anticipated on May 15, 2006. Far from an 11th hour attempt to manipulate and abuse the system, thcn, the instant action is a good-faith effort to movc as promptly and expeditiously as possible to protect Mr. Nooner's constitutional rights
111. MR. NOONER'S CLAIM IS PROPERLY BROUGHT UNDER
42 U.S.C. 5 1983 AND IS NOT THE EQUIVALENT OF A
PETITION FOR WRIT OF HABEAS CORPUS

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 18 of 20
Mr. Nooner's Complaint does not challenge the legality of his conviction or
sentcncc, nor does it seek to prcvcnt thc statc from executing him in a lawful manncr
Mr. Nooncr's challenge to the mcthod of execution to which the Defendants' intcnd to
subject him is thus indistinguishable from the challenge that the Supreme Court deemed
to be proper under 42 U.S.C. 5 1983 in Nelson v. Campbell, 541 U.S. 637 (2004). In
Nelson, the Court distinguished between a challenge to the fact of a conviction or the
duration of a sentence, which properly sounds in habeas corpus, and a claim relating
solely to conditions of confinement, which is an appropriate basis for a $ 1983 action.
Id. at 643. Mr. Nelson's claim fell into the latter catcgory, thc Court found, bccause it
challenged the particular execution proccdurc chosen by the defendants, namely a "cut-
down." Id. at 644.) That particular method was unnecessary, for it was not mandated by the applicable state statute and, as Mr. Nelson conceded, other, constitutional mcthods
were available. Id. at 645. Because the Defendants could go forward with the execution
notwithstanding the plaintiff's claim simply by altering their method of causing death, the
suit did not necessarily imply the invalidity of the plaintiff's sentence and was thercfore
The Supreme Court was thus not required to decide the broader question of whether a challenge to a particular categoty of execution methods, such as lethal injection per se or
electrocution, similarly was available under 5 1983 and not required lo be brought in habeas. Id.
at 644. That question need not detain this Court either, given that Mr. Nooner's claim also challenges only the particular procedure chosen and does not allege that lethal injection per se is unconstitutional. However, if the Court were inclined to rule adversely to Mr. Nooner on this point it would be appropriate to first await the issuance of the Supreme Court's opinion in Hill v. Crosby, 126 S.Ct. 1189 (2006), due to be dccided prior to the conclusion of the Term on June 30, 2006, in which the Supreme Court is expectcd to decide the larger issue. See Taylov, 2006 W L
1098173 at * 3 (permitting challenge to lethal injection protocol to continue as 5 1983 action
unlcss forthcoming decision in Hill mandates different decision).

Case 5:06-cv-00110-SWW Document 20 Filed 06/02/2006 Page 19 of 20
proper undcr $ 1983. Id. at 644-647. Likewise, Mr. Nooner's claim that the particular combination of drugs, dosages
and conditions of administration prescribed or overlooked by the protocol chosen by
Defendants and set forth in Administrative Directive 96-06 is properly brought undcr 5
1983. The Arkansas state statute requires only that death be caused by "a continuous intravenous injection of a lethal quantity of an ultra-short-acting barbiturate in
combination with a chemical paralytic agent." Ark. Code Ann. 5 5-4-617(a)(l). All
decisions regarding the particular drugs that will bc chosen, the dosages in which they will be administered and the procedures and conditions under which they will be introduced into the prisoner's vein are expressly the responsibility of Defendant Norris. Ark. Code Ann. $ 5-4-617(a)(2)("The Director of the Department of Correction shall determine the substances to be uniformly administered and the procedures to be used in any execution").
Plaintiff has expressly alleged that alternative methods of causing death by lethal injection, which do not engender foresecable, utterly unnecessary risks of gratuitous pain and suffering, arc available. Accordingly, Defendants remain able to proceed with the execution by alternative, humane means. The instant action seeks only to prohibit the execution of Mr. Nooner in accordance with the current protocol, under which he is subject to exactly those unconstitutional risks. The action is thus propcrly brought under
5 1983.

C a s e 5:06-cv-00110-SWW Document 20 Filed 0610212006 Page 20 of 20
WHEREFORE, for the foregoing reasons, Plaintiff Terrick Terrell Noonel respectfully requests that this Court deny Defendants' Motion to Dismiss.
Respectfully submitted, JENNIFFER IlORAN FEDERAL DEFENDER
By: Is/ Julie Brain Julie Brain Assistant Federal Public Defender 1401 W. Capitol, Suite 490 Little Rock, Arkansas 72201 (501) 324-61 13 (501) 324-5630 fax
CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 2nd day of June, 2006, the foregoing Response in Opposition to Motion was filed using this Court's EFICMS electronic filing system and thereby automatically delivered electronically to Assistant Attorney General Mark Hagemeier, Catlett-Prien Tower Bldg., 323 Center Street, Suite 200, Little Rock, AR 72201-2610.
IS/ Julie Brain Julie Brain

 
 Case 5:06-cv-00110-SWW Document 21-1 Filed 06/12/2006 Page 1 of 31

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
TERRICK TERRELL NOONER
and
DON WILLIAM DAVIS,

Plaintiffs,

v.

Civil Action No. 5:06-cv-00110-SWW-JFF

LARRY NORRIS, et al.,

Defendants.

APPLICATION FOR PRELIMINARY INJUNCTION Plaintiff, Don William Davis, is under a sentence of death. Mr. Davis moved to intervene in the instant action on May 4, 2006, and the Court granted the Motion on May 26, 2006. In the interim, on May 11, 2006, the Governor of the State of Arkansas scheduled Mr. Davis’ execution to take place on July 5, 2006. Mr. Davis seeks preliminary injunctive relief to prevent Defendants from executing him by their proposed means of lethal injection pending the resolution of this action. Mr. Davis alleges that the Arkansas Department of Correction’s lethal injection protocol, as described in Administrative Directive 96-06, which is attached hereto as Exhibit 1, constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments because it creates a substantial and unnecessary risk that Mr. Davis will be fully conscious and in agonizing pain for the duration of the execution process This application for a preliminary injunction is made pursuant to Federal Rule of Civil Procedure 65, and Mr. Davis is entitled to the relief he seeks under Eighth Circuit precedent. Mr.

1

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Davis will sustain irreparable harm if injunctive relief is not granted preventing the Defendants from conducting his execution in accordance with Administrative Directive 96-06. Mr. Davis is likely to prevail on the merits of the underlying action and the balance of hardships weighs decidedly in his favor. This application is based on the Complaint, the following memorandum of points and authorities and the attached exhibits, including the declaration of Dr. Mark Heath which sets forth the specific deficiencies in the Defendants’ lethal injection protocol. I. INTRODUCTION
Don William Davis, a death row inmate, is scheduled to be executed by the Arkansas Department of Correction by means of lethal injection. A rapidly growing body of evidence, including medical evidence, eyewitness observation and veterinary studies, persuasively demonstrates that the particular lethal injection protocol chosen by Defendant Norris risks, and has repeatedly resulted in, inmates failing to receive adequate anesthesia and remaining conscious during the administration of the lethal drugs. Without adequate anesthesia, the inmate experiences first slow suffocation and then the extraordinarily painful activation of the sensory nerve fibers in the walls of the veins that is caused by potassium chloride. Given the significant danger under the current protocol that he will be subjected to this excruciating pain and torture, Mr. Davis seeks to prevent the Defendants from executing him in this manner.
Administrative Directive 96-06 calls for the use of three drugs in succession: first, Sodium Pentothal, an ultrashort-acting barbiturate that under ideal conditions will cause the inmate to lose consciousness; second, Pancuronium Bromide, a neuromuscular blocking agent that paralyzes the muscles and has no apparent purpose other than to make the execution appear peaceful to witnesses; and finally, Potassium Chloride, which induces cardiac arrest.
2

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Administrative Directive 96-06 also establishes the conditions under which these drugs are administered. It directs that specified dosages of the drugs be administered remotely, in the absence of trained personnel and with no monitoring of the inmate’s condition once the procedure is underway. The combination of using these particular drugs, in these dosages and under these conditions, creates a serious risk that the drugs, particularly the critically important Sodium Pentothal, will not be properly administered. Administration errors could result, and demonstrably have resulted, in inmates retaining consciousness and suffering severe pain and torture during their executions.
Thus, Mr. Davis’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. Nor does he claim that execution by lethal injection is unconstitutional per se, regardless of the manner in which it is accomplished. On the contrary, he alleges that the significant risk of a botched and inhumane execution is an entirely foreseeable consequence of the particular conditions unnecessarily imposed by, and the failings of, Administrative Directive 96-06. It is surely unconstitutional for the State to choose an execution protocol that creates a significant risk of inflicting gratuitous suffering and excruciating pain. Mr. Davis therefore requests that the Court enjoin the Defendants from executing him by means of lethal injection as it is currently administered under Administrative Directive 96-06. II. FACTUAL BACKGROUND
In 1992, Don William Davis was convicted in the Circuit Court of Benton County, Arkansas, of Capital Murder, Burglary and Theft of Property in connection with the October 12, 1990, shooting death of Jane Daniel at her home in Rogers. The jury thereafter sentenced Mr.
3

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Davis to death. The Arkansas Supreme Court affirmed the convictions and sentence on direct appeal in 1993, see Davis v. State, 863 S.W.2d 259 (Ark. 1995), and affirmed the denial of state post-conviction relief in 2001, see Davis v. State, 44 S.W.3d 726 (Ark. 2001).
Mr. Davis filed a petition for writ of habeas corpus in the United States District Court for the Western District of Arkansas on April 1, 2002. Chief Judge Jimm Larry Hendren denied the petition in full on January 28, 2004, and the Eighth Circuit Court of Appeals affirmed on September 14, 2005. See Davis v. Norris, 423 F.3d 868 (8th Cir. 2005). The Supreme Court denied Mr. Davis’ motion for permission to file a petition for certiorari out of time on April 17, 2006.
Plaintiff Terrick Terrell Nooner filed the Complaint in the instant action on May 1, 2006. Mr. Davis thereafter moved to intervene as a plaintiff on May 4, 2006. While that Motion was pending before this Court, on May 11, 2006, Governor Mike Huckabee announced that he had scheduled Mr. Davis’s execution for July 5, 2006. The Court granted leave for Mr. Davis to intervene on May 26, 2006.
Currently pending before this Court is Defendants’ Motion to Dismiss, filed on May 19, 2006. Plaintiffs filed their Response in Opposition to that Motion on June 2, 2006. III. ARGUMENT
In moving for a preliminary injunction, Mr. Davis seeks only to preserve the status quo while he litigates his constitutional claims. Mr. Nooner and Mr. Davis are both likely to succeed on the merits of this action, and Mr. Davis will suffer irreparable harm in the absence of temporary relief. It is also in the public interest to grant temporary relief because doing so will allow the important question of the constitutionality of Administrative Directive 96-06 to be fully
4

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and accurately resolved on the merits and will avoid an inhumane, unconstitutional execution. This action was timely brought and the balance of equities so favors Mr. Davis that both justice and controlling precedent require that the Court preserve the status quo until the merits of the matter can be determined.
A. THE LEGAL STANDARD In order to decide whether a preliminary injunction is appropriate, the Court must consider “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981)(en banc). The necessary showing of likelihood of success depends upon the balance of threatened harms; accordingly, “where the movant has raised a substantial question and the equities are otherwise strongly in his favor, the showing of success on the merits can be less.” Id. at 113. In the context of a capital case, where the movant is under a death sentence and the issuance of a preliminary injunction will have the effect of delaying a scheduled execution, the Court must also take into account any unnecessary delay on the part of the prisoner in bringing his claim. Nelson v. Campbell, 541 U.S. 637, 649-650 (2004); Hill v. McDonough, 547 U.S. (2006). The Eighth Circuit Court of Appeals performed this weighing of the equities in the functionally identical case of Taylor v. Crawford, 445 F.3d 1095, 1097 (8th Cir. 2006). See also Taylor v. Crawford, No. 06-1397 (8th Cir. February 1, 2006)(en banc)(Order granting stay of execution). Plaintiff Taylor filed an action pursuant to 42 U.S.C. § 1983 challenging Missouri’s lethal injection protocol on substantially the same grounds that Mr. Davis has challenged
5

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Arkansas’ procedure. See Taylor, 445 F.3d at 1096. As here, while the action was pending the state scheduled Mr. Taylor’s execution. Id. at 1097. The district court granted a preliminary injunction preventing the execution from proceeding before the merits of the action had been determined. Id. A panel of the Eighth Circuit initially reversed and ordered that an immediate, truncated hearing be conducted to allow the execution to proceed on schedule, id., but on the subsequent appeal the en banc court granted rehearing and stayed Mr. Taylor’s execution, id. at 1098.
Upon reconsideration the panel affirmatively acknowledged that the plaintiff’s interest in having an evidentiary hearing on the merits of his claims prior to his execution was “equally [as] strong” as the State’s interest in the prompt execution of its judgment. Id. at 1096. The court inquired of the parties how much time they would need to complete the discovery and evidentiary hearing that had previously begun, and ultimately granted the 60 days that plaintiff’s counsel requested. Id. at 1098. This decision, then, stands for the proposition that a plaintiff who timely files a properly-pled 8th and 14th Amendment challenge to a state’s lethal injection procedure under 42 U.S.C. § 1983 is entitled to an evidentiary hearing on the merits of his claims and, if the State schedules his execution in the interim, a preliminary injunction to prevent the State from proceeding with the execution before the hearing can be completed. See also Cooey v. Taft, 2006 WL 1207982 (S.D.Ohio); Jackson v. Taylor, 2006 WL 1237044 (D.Del.). As discussed in the Opposition to Motion to Dismiss, [Document 20], the suit brought by Mr. Nooner and Mr. Davis is both timely filed and properly-pled, and this Court should therefore issue the preliminary injunction.
6

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B. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS 1. Plaintiff’s Claim Is Cognizable Under 42 U.S.C. § 1983
The Complaint does not challenge the legality of Mr. Davis’ conviction or sentence, nor does it seek to prevent the state from executing him by lethal injection in a lawful manner. Any doubt that Mr. Davis’ claim is therefore properly brought under 42 U.S.C. § 1983 was removed this morning by the United States Supreme Court which announced its decision in Hill v. McDonough, 547 U.S. (2006). In accordance with its previous opinion in Nelson v. Campbell, 541 U.S. 637 (2004), the Court held that a claim challenging a method of execution as cruel and unusual punishment that “would not necessarily prevent the State from executing him by lethal injection,” is proper under § 1983 and need not be brought in habeas. Hill, Slip Op. at 5. As is clear from the Complaint, the instant lawsuit is just such an action. Mr. Davis and Mr. Nooner have specifically alleged that there are readily available alternative methods of execution by lethal injection that would both comport with state law and pass constitutional muster. They bring this action simply to ensure that they are put to death in a humane manner.
2. Arkansas’ Lethal Injection Protocol Violates the Eighth and Fourteenth Amendments Because it Carries a Tremendous Risk of Unnecessary Pain During Executions
The Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the imposition of cruel and unusual punishments. U.S. Const. Amend. VIII. The prohibition includes the “infliction of unnecessary pain in the execution of the death sentence.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1974); see also Gregg v. Georgia, 428 U.S. 153, 173 (1976)(holding that the Eighth Amendment prohibits the “unnecessary and wanton infliction of pain”).
7

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Because it is impossible to determine with certainty before the fact whether a particular inmate will suffer unnecessary pain during his execution, the question of whether a particular execution procedure will inflict unnecessary pain is fundamentally an inquiry as to whether the inmate is “subject to an unnecessary risk of unconstitutional pain or suffering.” Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004)(emphasis added); Fierro v. Gomez, 77 F. 3d 301, 307 (9th Cir. 1996) (“Campbell also made clear that the method of execution must be considered in terms of the risk of pain.” (emphasis in original)); Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994). “For any individual challenging a death sentence, evidence of botched executions can only be put in terms of probability.” J.D. Mortenson, Earning the Right to be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause, 88 Iowa L. Rev. 1099, 1118-20 (2003).
Of course, any medical or quasi-medical procedure inherently carries a risk that a mistake or accident might cause unforeseen pain. Thus, the Eighth Amendment does not require executioners to eliminate all possible risk of pain or accident from their execution protocols. See Resweber, 329 U.S. at 464; Campbell, 18 F.3d at 687. A risk of pain becomes unnecessary, however - and unconstitutional - when experience with the execution procedure demonstrates that there are foreseeable problems that will result in the inmate suffering intense pain that alternative procedures do not engender.
The assessment of the risks associated with a particular procedure is not static. Over time, our knowledge of the workings of the human body increases, technology advances, new information comes to light and old information is more thoroughly understood and interpreted. Accordingly, methods of execution are developed, refined and abandoned. Execution by
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hanging, firing squad, gas chamber and electric chair, once standard, have all become virtually obsolete with the passage of time. If a State opts to utilize capital punishment, the 8th Amendment imposes an obligation upon it to keep up with and respond to new developments and information and to ensure that they are using the most humane, least painful procedure available. Evidence is now overwhelming that the particular lethal injection protocol chosen and currently in use by the ADC is far from the most humane available; rather, it engenders serious risks of causing excruciating pain and torture that other available methods simply do not. See Cooey v. Taft, No. 2:04-cv-1156, 2006 WL 1207982 * 5 (S.D.Ohio April 28)(noting “mounting evidence calling Ohio’s lethal injection protocol, and the same or similar protocols employed by other states, increasingly into question”).
a. The Protocol Is Old And Was Ill-Conceived At The Outset Legislation directing a change in the method of execution from electrocution to lethal injection was passed in Arkansas in 1983. As it does to this day, the statute left all decisions regarding the particular chemicals to be injected and the administration procedures to be employed to the discretion of the Director of the Department of Correction. See Ark. Code Ann. § 5-4-617(a)(1983). The legislation originally proposed contained a provision directing the Director of the Department of Correction to consult with the State Medical and Pharmacy Boards before making the determination of which substances should be administered and what procedures should be followed. See Doug Smith, Pharmacy College’s Dean Resents Role in Execution Thrust Unasked on School, ARKANSAS GAZETTE, March 5, 1983, at 1A, 13A (Exhibit 2). However, lobbying by physicians unwilling to be involved in the execution business resulted in the College of Pharmacy at the University of Arkansas for Medical Sciences being substituted
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as the consulting Agency. Id. The legislation containing this provision passed, but the College of Pharmacy was
outraged. Dean Larry D. Milne was vocal in his opposition to involving his institution in the execution process, id., and virtually the entire faculty signed a petition objecting to the legislation, see May Not Sign Injection Bill, Clinton Says, ARKANSAS GAZETTE, March 12, 1983, at 2A (Exhibit 3). The bill was recalled, and ultimately an amended version was passed that contained no requirement that the Director consult with knowledgeable parties. Sponsor Recalls Lethal Injection Bill, ARKANSAS GAZETTE, March 15, 1983, at 3A (Exhibit 4); Clinton Signs Injection Bill, Six Additional Measures, ARKANSAS GAZETTE, March 26, 1983, at 8A (Exhibit 5). Senator John F. Bearden, Jr., the sponsor of the legislation, was unperturbed, telling media representatives that designing a lethal injection protocol is “‘pretty simple. All you have to do is pick up the phone and call Texas.’” Sponsor Recalls Lethal Injection Bill, ARKANSAS GAZETTE, March 15, 1983, at 3A (Exhibit 4). The protocol was thus designed with no input or advice from medically trained personnel in Arkansas.
Similarly, the Texas protocol upon which the Arkansas procedure was apparently modeled was designed by lay corrections officials with no medical knowledge. Louisiana is another state that looked to Texas when it came time to figure out how to execute someone by lethal injection. When the chief legal counsel of the Louisiana Department of Corrections consulted with the warden of the Texas Department of Corrections responsible for executions about the “medical portion” of the Texas protocol, she was told:
‘[T]hat the only thing that mattered was that the guy ended up dead and that he wasn’t worried too much about the amount of medicine. He had certainly used the same types of medicine, but that he wasn’t totally concerned about the
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amounts or what it may or may not do. They ended up dead, and that’s all he was worried about. The rest of our conversation with him tracked that same thing. He was not terribly concerned about policy, procedure, or who did what, when, where. Just so the right result happened.’ So Long as They Die: Lethal Injections in the United States, 18 Human Rights Watch 1(G) at 1617 (2006)(Exhibit 6). The Department of Correction has used the protocol adopted in this ad hoc, unscientific manner for all executions by lethal injection conducted in Arkansas, and still uses that same procedure. See Motion to Dismiss at 4 [Document 13](“Since 1983, the protocol used for executions has basically remained unchanged”).
b. The Protocol Arbitrarily Selects Painful Drugs And Fails To Ensure Adequate Anesthesia During Their Administration
As noted above, the Arkansas lethal injection statute, Ark. Code Ann. § 5-4-617, requires only that the chemicals administered to cause death include an ultra-short-acting barbiturate and a chemical paralytic agent. The choice of drugs and drug dosages is made by Defendant Norris. Ark. Code Ann. § 5-4-617(a)(2)(“The Director of the Department of Correction shall determine the substances to be uniformly administered and the procedures to be used in any execution”). The drugs and dosages chosen by Defendant Norris, in order of administration, are as follows:
1. 2 g Sodium Pentothal; 2. 10-15cc Normal Saline; 3. 50 mg Pancuronium Bromide; 4. 50 mg Pancuronium Bromide; 5. 10-15cc Normal Saline;
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6. 50 meqs (milliequivalents) Potassium Chloride; 7. 50 meqs Potassium Chloride; 8. 50 meqs Potassium Chloride. ADC Administrative Directive 96-06 (Exhibit 1). The first drug, Sodium Pentothal, is an anesthetic, intended to rapidly induce unconsciousness. The second active drug, Pancuronium Bromide, is a neuromuscular blocking agent that causes complete paralysis. Finally, Potassium Chloride is introduced to cause cardiac arrest. Potassium Chloride is a salt that naturally occurs in trace amounts in the human body. In large quantities, however, such as the 100 meqs called for by Administrative Directive 96-06, it not only causes the heart to stop beating but also causes excruciating pain as it travels through the circulatory system. The drug activates the sensory nerve fibers of the insides of the veins as it courses through the body from the injection site to the heart, causing a sensation that has been likened to fire scorching along the vessels. See Exhibit 7 at ¶12 (Declaration of Dr. Mark Heath). The neuromuscular blocking agent Pancuronium Bromide stops all movement, including that necessary to breathe. The drug has no effect, however, on consciousness or the ability to perceive pain. If a prisoner is conscious when this drug is administered, he will feel the visceral pain and distress of slow suffocation, much like as if he were drowning or being crushed to death. Id. at ¶15. Having made the choice to administer two drugs that cause excruciating pain and agony, a choice that was not required by either statute or practical considerations, the ADC can fulfill its responsibility under the 8th Amendment to avoid gratuitous and unnecessary pain and torture
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only if it ensures that the prisoner is adequately anesthetized at the time that those drugs are administered. In order to ensure that the prisoner does not feel pain a surgical plane of anesthesia, or that level of anesthesia that prevents conscious perception of noxious stimuli of the magnitude of surgical procedures, must be achieved and maintained throughout the execution procedure. However, the drug that the ADC has chosen to induce anesthesia, administered in accordance with the procedures under which the ADC has chosen to administer it, is an exceedingly inferior choice for the task and fails to provide the necessary assurance of adequate anesthesia.
i. Sodium Pentothal is an Ultra-Short-Acting Barbiturate Unsuitable for use as Sole Anesthetic Agent for Executions, Especially in the Dose Used by the ADC
Sodium Pentothal is an ultra-short-acting barbiturate that is used for certain specific purposes in surgical anesthesia. Its effect has a rapid onset and then a rapid recovery; the patient becomes unconscious very quickly after the drug is introduced, and the effects begin to wear off very soon thereafter. Sodium Pentothal is therefore ideal for the provision of anesthesia during intubation at the beginning of surgery, for example, because it induces deep anesthesia rapidly but if there are problems with the intubation the patient will regain consciousness and the ability to breathe independently very quickly. See Exhibit 7 at ¶ 24-25 (Declaration of Dr. Heath).
The reasons for the drug’s utility in certain surgical contexts, however, are also reasons why Sodium Pentothal is decidedly inappropriate for use as the sole anesthetic agent during a lethal injection procedure. Id. at ¶ 26-27. Although the Arkansas protocol calls for a dose of the drug that is large enough to be lethal if properly administered, any problems with the delivery of the full dose engender the serious risk that the inmate will receive an insufficient amount of the
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drug to induce a deep enough plane of anesthesia, or to maintain that degree of anesthesia throughout the execution process. In short, if the inmate does not receive the full amount of Sodium Pentothal, and there are many reasons why that can and apparently does happen, the anesthetic effect may wear off too quickly and the inmate may be conscious and suffering during the remainder of the procedure.
The ADC’s protocol unnecessarily enhances these risks by its arbitrary and unnecessary adoption of 2 grams as the does of Sodium Pentothol to be administered, as distinguished from the 3 grams or 5 grams that is typically given in other jurisdictions that conduct executions by lethal injection. See, e.g., Taylor v. Crawford, 445 F.3d 1095, 1097 (8th Cir. 2006)(noting that Missouri’s lethal injection protocol calls for 5 grams of sodium pentothal); Morales v. Hickman, 438 F.3d 926, 928 (9th Cir. 2006)((noting that California’s lethal injection protocol calls for 5 grams of sodium pentothal); Cooey v. Taft, 2006 WL 1207982 at * 4 (noting that Ohio’s lethal injection protocol calls for 2 grams of sodium pentothal, less than the 5 grams called for by California and the 3 grams used by North Carolina). Although concerns about the selection of this particular drug apply regardless of the size of the dose of sodium thiopental that is prescribed under the protocol, the ADC’s arbitrary decision to administer only 2 grams unduly decreases the margin of error and the increases the risk that inadequate anesthesia will be achieved.
The level of anesthesia, if any, achieved in each individual inmate depends on the amount that is successfully administered, although other factors such as the inmate’s weight and sensitivity/resistance to barbiturates are also important. Many foreseeable situations exist in which human or technical errors could result in the failure to successfully administer the intended dose. If error occurs that results in the prisoner receiving only half of a 5 gram dose, the prisoner
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will still receive 2.5 grams and adequate anesthesia will likely occur despite the error. If the same error occurs and the prisoner receives only half of a 2 gram dose, however, the risks of inadequate anesthesia and conscious suffering are significant. Exhibit 7 at ¶ 27 (Declaration of Dr. Heath)
Additionally, the ADC’s protocol fails to even require that additional Sodium Thiopental be available in the execution chamber in the event that problems with delivery of the dose are detected and more of the anesthetic agent is determined to be necessary. Because of its instability, the drug is distributed in powder form and must be placed into solution before it may be injected. Id. at ¶ 27 (a). Administrative Directive 96-06 fails to require even that extra Sodium Pentothol powder be on hand, much less extra syringes of the drug already mixed into solution, and so in the event that execution personnel were to detect signs of inadequate anesthetic depth or possible consciousness once the execution process was under way, the protocol ensures that there is nothing they could do about it. As noted, the circumstances under which a failure to achieve and maintain adequate anesthesia may occur are many, varied and common.
ii. Obtaining IV Access for Execution Purposes Requires Training and Skill that ADC Execution Personnel Lack
Establishing peripheral intravenous access to an inmate to facilitate the administration of the lethal drugs called for by Administrative Directive 96-06 is a complex and risky medical procedure that should only be performed by properly medically trained and qualified personnel. The process is fraught with the potential for error. Under the best of circumstances, it is vital that the iv set-up be assembled properly and securely. The set-up consists of multiple parts and
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pieces of tubing, which may leak or otherwise fail to permit the unobstructed flow of chemicals into the inmate’s circulatory system if not correctly attached. See Exhibit 7 at ¶ 27(e) (Declaration of Dr. Heath).
The tourniquet that is applied to facilitate access to the peripheral vein must be removed once iv access is achieved; failure to do so will obstruct the flow of the anesthetic agent into the inmate’s body. See Id. at ¶ 27(k). There is reason to believe that the executioners have failed to remove the tourniquet in at least one execution conducted by the ADC; the Medical Examiner’s report of the autopsy of Darrell Richley states that the tourniquet was still present on Mr. Richley’s arm when his body was received at the morgue following his execution. See Exhibit 8 (Medical Examiner’s Report of Autopsy - Darrell Richley). A similar problem may occur due to placement of the extensive restraining straps that the ADC uses to tie the inmate down to the gurney. See Exhibit 7 at ¶ 27(l)(Declaration of Dr. Heath).
It is critical that the catheter be inserted into the vein in precisely correct fashion in order to ensure that the full dose of the anesthetic drug is delivered into the inmate’s circulatory system. If the catheter is inserted incorrectly, the drug will go into the tissue surrounding the vein rather than into the vein itself. See id. at ¶ 27(f). This condition, known as infiltration, is not uncommon. Id. Uncorrected, it will result in a failure of the anesthetic to reach the central nervous system and a failure to render the inmate unconscious. Id. Once properly inserted, the catheter must be adequately secured with tape or by other means, or else it may shift and result in infiltration. Id. at ¶ 27(j).
Even finding a suitable peripheral vein into which the catheter may be placed can be a medically complex and difficult endeavor. See, e.g., Exhibit 9 (Post-Mortem Photograph of
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Riley Noel). Due to a variety of conditions, including obesity, prior intravenous drug use, corticosteroid treatment and even just naturally small or deep veins, obtaining peripheral iv access may be difficult or even impossible. Id. at ¶ 36. The very nature of the execution process may exacerbate this problem, because the autonomic manifestations of the anxiety associated with impending death include constriction or narrowing of the veins. Id. at ¶ 41.
In the event that peripheral iv access proves impossible to obtain, most States’ protocols call for the use of dramatically more medically complex, risky and invasive procedures such as a cut-down, which entails making a deep incision into the inmate’s skin in order to access a vein that is not accessible from the surface, or a central line, which requires insertion of the catheter into a large vein such as the subclavian vein in the chest or the femoral vein in the groin. Indeed, both of these procedures have been conducted in Arkansas by the ADC. See Exhibits 10, 11, 12 (Post-mortem Photographs of Ricky Ray Rector); Exhibit 13 (Autopsy Report of Ricky Ray Rector); Exhibits 14, 15, 16 (Post-mortem Photographs of Clay Smith); Exhibit 17 (Autopsy Report of Clay Smith).
Despite the complexity of and risks associated with these types of procedures, see Exhibit 7 at ¶¶ 36-41(Declaration of Dr. Heath), and their demonstrable necessity in at least two of the last 26 executions in Arkansas, Administrative Directive 96-06 fails to set forth any procedures whatsoever governing the use of these techniques. The protocol fails to specify who will decide if such measures are necessary, to prescribe how they are to be conducted or to set forth the qualifications required of the personnel who will actually perform them. Given the nature of the procedures it is unacceptable that they be performed by anyone except for medically trained personnel possessed of adequate skill and experience, but the protocol fails to require any
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particular knowledge or ability at all. iii. Maintenance of Adequate Anesthesia Throughout the Execution Process Requires Training and Skill that ADC Execution Personnel Lack
Even once peripheral iv access has been established and the catheters are properly inserted, there are still a large number of problems that may arise that may interfere with the proper delivery of anesthesia. It is critical, therefore, that the inmate be closely monitored by medically trained and experienced personnel throughout the execution process in order to detect problems as they occur and ensure that the inmate is maintained on a sufficiently deep plane of anesthesia. See Exhibit 7 at ¶¶ 31-32 (Declaration of Dr. Heath). Even most qualified nurses and paramedics are not trained in the use of ultrashort-acting barbiturates; these drugs are used only by anesthesiologists and a very select group of nurses who have obtained significant experience in intensive care units and as nurse anesthetists. Id. at ¶ 30. Training equivalent to that of an anesthesiologist or a CRNA is minimally required in order to ensure that an execution using the drugs and procedure selected by Defendant Norris is humane. Id. However, the ADC’s protocol fails to provide for any monitoring of the inmate during the execution process, much less monitoring by individuals competent in the provision of general anesthesia.
Errors and problems are potentially rife beginning at the stage of preparation of the lethal drugs. Sodium Thiopental is unstable in solution, and is therefore distributed by the manufacturer in powder form. Before it may be injected intravenously, the powder must be mixed with liquid, a process that requires knowledge of pharmaceuticals and familiarity with terminology and abbreviations. Id. at ¶ 27(a). Administrative Directive 96-06 provides no guidance to execution personnel on this issue, stating only that “the powder be dissolved in ‘the
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least amount of clear diluent possible to attain complete, clear suspension.’” Id. No instructions are given as to how much fluid that might be or how the person performing the mixing should determine how much to use or how success has been achieved. Id.
The ADC’s protocol requires that, once mixed, the drugs be placed in a series of numbered syringes. Id. at ¶ 27(b); Exhibit 19 (Photograph of Syringes). No other indication of the contents of the syringes is placed on them, which means that if a drug is erroneously placed in a syringe of the incorrect number, the error is likely to go undetected and the drugs will be administered in the wrong order. Id. Such labeling is far below the appropriate medical standard of care and would never be permitted in the clinical context. Administration of the drugs in the wrong order may also result from the fact that each syringe is a separate unit that must be attached in series to the iv setup by hand. Exhibits 20, 21, 22 (Photographs of Syringes and IV Tubing). The protocol wholly fails to guard against the possibility that the executioner might select the incorrect syringe, to provide for monitoring of the inmate to ensure that such an error is immediately detected if it occurs, or to prescribe the steps to be taken if such a situation is detected. See Exhibit 7 at ¶ 27(c)(Declaration of Dr. Heath)
If the lethal drugs are administered in the wrong order a range of negative consequences may ensue. Several of the numbered syringes are supposed to contain saline solution to be administered between drugs in order to flush the iv lines of all traces of the preceding agent. Of primary importance is the fact that, if mixed with Pancuronium Bromide outside of the body, Sodium Pentothol will precipitate, i.e. solids will form in the solution, impairing or preventing delivery of the full dose of anesthetic agent. Hence, if error in the selection of syringes results in the introduction of Pancuronium Bromide before the line has been flushed with saline solution,
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inadequate anesthesia may result. The ADC’s lethal injection protocol requires that the executioners who inject the lethal
drugs into the iv set up be located in a room that is apart from the execution chamber where the inmate is placed on the gurney, separated by a window with a hole in it for the iv lines to pass through. Exhibit 23 (Photograph of Execution Chamber). Because of the distance between the inmate and the executioners that this procedure necessitates, extended iv tubing is required. The introduction of extra length and components to the iv set-up not only increases the number of sites where leakage may occur, see Exhibit 7 at ¶ 27(e)(Declaration of Dr. Heath), but also increases the risk that the tubing may coil or kink.
Even when properly placed initially, the tip of an iv catheter may migrate during the course of the execution so that it is outside of the vein at the time of the introduction of the anesthetic agent and infiltration occurs. See Exhibit 7 at ¶ 27(g)(Declaration of Dr. Heath). Although the catheter appears to be securely and properly placed, too, the process of inserting it may weaken or damage the vein wall such that the vein ruptures when the administration of the lethal drugs begins. Id. at ¶ 27(h). This risk is increased by the fact that inexperienced, untrained personnel may exert excessive pressure on the syringe plungers, increasing the velocity of the administration of te drug and consequently the pressure that is placed on the vein walls. Id. Indeed, excessive pressure on the plunger can lead to tearing or rupture of the vein even in the absence of damage caused by the initial insertion of the catheter. Id. at ¶ 27(i).
Because of each of these potential problems and more, constant, close monitoring of the inmate’s plane of anesthesia throughout the execution process by individuals who are properly trained and skilled in anesthesiology is indispensable. And yet, the Defendants’ protocol fails to
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provide for any monitoring at all once the execution is underway, much less monitoring by personnel who have the requisite knowledge and experience to detect and rectify any problems that may arise them.
iv. Even if ADC Personnel Were Qualified to Administer IV Anesthesia, the Use of Pancuronium Bromide and the Physical Arrangement of the Execution Chamber Preclude Effective Monitoring
Not only does the ADC’s lethal injection protocol fail to provide for monitoring of the inmate by persons qualified in assessing anesthetic depth, it calls for a physical arrangement of inmate and executioners that would unnecessarily hinder effective monitoring even if it were attempted. As noted, the protocol requires that the executioners who inject the lethal drugs into the iv set-up be located in a room that is apart from the execution chamber where the inmate is placed on the gurney, separated by a window with a hole in it for the iv lines to pass through. Exhibit 23 (Photograph of Execution Chamber). The persons who control the administration of the drugs, then, are the furthest away of any execution chamber personnel and their line of sight to the inmate is impeded. See Exhibit 7 at ¶ 27(e)(Declaration of Dr. Heath). The distance entirely precludes the close monitoring of the diagnostic signs of anesthetic depth that are constantly checked during surgical procedures
d. The Risk of Torture and Pain Created by Administrative Directive 96-06 Has Been Realized in Executions in Arkansas and Elsewhere
There is now ample evidence that Administrative Directive 96-06 has caused some inmates executed in Arkansas to experience unnecessary pain and suffering during their executions. Both execution records and witnesses' accounts of these executions provide evidence that is indicative of continued consciousness following the purported administration of the
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sodium pentothal. A dose of Sodium Pentothal of 2mg or more, properly administered, will cause unconsciousness within one minute or less. Exhibit 7 at ¶ 42 (Declaration of Mark Heath). However, in several executions that have been performed in Arkansas, the inmate displayed signs of consciousness for considerably longer that the one minute maximum that is indicative of successful administration of the anesthetic.
Ronald Gene Simmons was executed by the State of Arkansas on June 25, 1990. Exhibits 24, 25, 26 (Post-mortem Photographs of Ronald Gene Simmons). The administration of the lethal chemicals began at 9:02pm. Exhibit 27 (Medical Examiner’s Consultation and Investigation Form - Ronald Gene Simmons). Between 9:02 and 9:04pm, according to an eyewitness, Mr. Simmons appeared to nod off into unconsciousness. However, “at 9:05pm he called out ‘Oh! Oh!’ and began to cough sporadically as though he might be having difficulty breathing. During the next two minutes, he coughed slightly, approximately 20 times, each cough heaving his stomach slightly and causing the gurney to shake a little.” Bill Simmons, Stoic Murderer Meets His Fate by Quiet Means, ARKANSAS DEMOCRAT, June 26, 1990, at 9A (Exhibit 28). Mr. Simmons became still at 9:07pm, after which his face and arm turned first blue and then purple. An ADC employee twice appeared to adjust the IV tube in Mr. Simmons’ arm, and not until 9:19pm was Mr. Simmons pronounced dead by the coroner. Id.; Exhibit 28.
According to Dr. Heath, the typical reaction to the administration of sodium pentothal is yawning, drawing one or two deep breaths, or visibly exhaling so that the cheeks puff out. Exhibit 7 at ¶ 44. (Declaration of Mark Heath M.D.) Obviously, audibly vocalizing is not consistent with unconsciousness. Also, irregular heaving of the chest is not consistent with the depression of the central nervous system caused by sodium pentothal. Id. Rather, chest heaving is indicative of labored respiratory activity, which in turn strongly suggests that Mr. Simmons was conscious, and indeed may have been laboring against the paralyzing effect of the pancuronium bromide. Id.
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Just under two years later, on January 24, 1992, Rickey Ray Rector was put to death in Arkansas. The execution took one hour and 9 minutes to complete, during which time Mr. Rector’s hands and arms were punctured no less than 10 separate times by ADC personnel searching for a suitable vein in which to place the IV line. Exhibits 10, 29, 30, 31 (Post-mortem Photographs of Ricky Ray Rector); Exhibit 13 (Autopsy Report of Ricky Ray Rector) The catheter was finally inserted into a vein in Mr. Rector’s hand, Exhibits 32, 33, 12, but not before a deep incision, a “cut-down,” was made in his arm, Exhibits 10, 11, 12. The curtains between the execution chamber and the witness room remained closed during the 50 minutes it took to place the IV line, but witnesses heard Mr. Rector’s loud moans as his skin was repeatedly pierced. Sonja Clinesmith, Moans Pierced Silence During Wait, ARKANSAS DEMOCRAT GAZETTE, January 26, 1992, at 1B (Exhibit 34); Ron Fournier, 13 Outsiders View Death of Rector, Witnesses Listen, Wait Beyond Curtain, ARKANSAS DEMOCRAT GAZETTE, January 26, 1992, at 4B (Exhibit 45); Exhibit 35 at ¶¶ 8, (Declaration of John Jewell). Witnesses also heard the sound of skin slapping skin as ADC personnel apparently tried to raise a vein, prompting one witness to say ‘[t]hey’re going to beat him to death.’” Ron Fournier, 13 Outsiders View Death of Rector, Witnesses Listen, Wait Beyond Curtain, ARKANSAS DEMOCRAT GAZETTE, January 26, 1992, at 4B (Exhibit 45.)
Even once the IV line was secured and the curtains opened, the ordeal for Mr. Rector was not over. The flow of lethal chemicals began at 9:50pm, Exhibit 36 (Medical Examiner’s Consultation and Investigation Form - Ricky Ray Rector), and for two minutes Mr. Rector looked to witnesses as though he was nodding off to sleep. However, one observer noted that Mr. Rector said “‘I’m getting dizzy,’” two minutes after the execution began. Joe Farmer, Rector, 40, Executed for Officer’s Slaying, ARKANSAS DEMOCRAT GAZETTE, January 25, 1992, at 9A. (Exhibit 37.) Then at 9:55pm, “Rector’s lips moved rapidly - as if he was drawing shallow breaths. His lips stopped moving a minute later.” Ron Fournier, 13 Outsiders View
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Death of Rector, Witnesses Listen, Wait Beyond Curtain, ARKANSAS DEMOCRAT GAZETTE, January 26, 1992, at 4B (Exhibit 45). This again suggests an attempt to fight against the effects of the pancuronium bromide. Mr. Rector still was not pronounced dead; at 10:06pm a witness noted that a heart monitor at the head of the gurney appeared to be flat-lining, only to then see another “jump” and then “another flutter.” Id. Death was finally pronounced at 10:09pm.
On May 7, 1992, 25 year old Steven Douglas Hill was executed. Exhibit 38 (Declaration of Charles L. Carpenter, Jr.); Exhibits 39, 40 (Post-mortem Photographs of Steven Hill). His execution began at 9:02pm. Exhibit 41 (Medical Examiner’s Consultation and Investigation Form - Steven Douglas Hill). His eyes closed one minute later, but shortly afterwards he had what witnesses described as “a ‘seizure,’ arching his back with his cheeks popping out.” Andy Gotlieb and Linda Satter, Hill Dies by Injection for ‘84 Police Killing, ARKANSAS DEMOCRAT GAZETTE, May 8, 1992, at 17A (Exhibit 42.) He was visibly “gasping for air,” and even though he was strapped down to the gurney “his chest was heaving against the wide belt that covered his chest.” Exhibit 38 at ¶ 8 (Declaration of Charles L. Carpenter, Jr.). The seizure ended at 9:04pm and Mr. Hill was pronounced dead at 9:10pm.
Christina Riggs, the first woman to be put to death in Arkansas in over 150 years, was executed on May 2, 2000. The procedure was delayed for 18 minutes while ADC personnel struggled in vain to insert the IV line into her elbows. Exhibit 46 (Medical Examiner’s Consultation and Investigation Form - Christina Riggs). When they could not do so, they asked Ms. Riggs if they could insert the catheters into her wrists, and she consented. Exhibits 47, 48 (Post-mortem Photographs of Christina Riggs). The execution then proceeded. However, a minute after the drugs had purportedly begun to flow into her body, Ms. Riggs was still vocalizing. Witnesses heard her say “I love you, my babies.” Cathy Frye, Riggs, Mother who Killed her 2 Children, Put to Death by State, ARKANSAS DEMOCRAT GAZETTE, May 3, 2000, at 1B (Exhibit 49).
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These accounts of Arkansas 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.” Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005). They are also part of a growing body of evidence that suggests that identical problems are recurring over and over again in jurisdictions throughout the country that utilize similar lethal injection protocols. See, e.g., Cooey v. Taft, 2006 WL 1207982 * 5 (“Plaintiff has demonstrated a stronger likelihood of success on the merits than the plaintiffs who preceded him, given the growing body of evidence calling Ohio’s lethal injection protocol increasingly into question. This Court cannot and will not turn a blind eye to the evidence presented in the cases of Brown v. Beck in North Carolina and Morales v. Hickman in California”).
Recently, the execution of Joseph Lewis Clark by the State of Ohio demonstrated graphically and horrifically how an execution that appeared completely normal and routine at the outset can rapidly go horribly wrong. See Adam Liptak, Trouble Finding Inmate’s Vein Slows Lethal Injection in Ohio, NEW YORK TIMES, May 3, 2006 (Exhibit 43.) After searching for 22 minutes, execution personnel finally found a vein that they thought was suitable for inserting the IV catheter. Id. However, three or four minutes after the flow of lethal drugs was started, Mr. Clark literally raised his head up off the gurney and informed his executioners that “[i]t’s not working.” Id. The vein had apparently collapsed; the execution team closed the curtain to the witness room and once again began searching for a usable site for the IV, a process that took another 30 minutes. Id. Mr. Clark was not pronounced dead until 11:26am, almost an hour and a half after the ordeal began. Id.
c. The Serious Risks Engendered by ADC’s Lethal Injection Protocol are Unnecessary and Unconstitutional
Administrative Directive 96-06 both creates an unacceptable and unnecessary quantum of
25

Case 5:06-cv-00110-SWW Document 21-1 Filed 06/12/2006 Page 26 of 31
risk that the inmate will not be adequately anesthetized and therefore will suffer excruciating pain during his execution, and also fails utterly to account for these obvious contingencies and instruct personnel on how to react to or prevent them. In this respect, the lethal injection protocol is starkly different from the judicial hanging protocol that the Ninth Circuit Court of Appeals upheld in Campbell v. Wood, 18 F.3d 662, 683 (9th Cir. 1994). Analogous to the risk that an inmate will be conscious and in excruciating pain during the lethal injection process, the State of Washington's judicial hanging procedure carried the risk that an inmate would die of asphyxiation, which is slow and painful, or decapitation, which mutilates the inmate's body, rather than dying within seconds as intended. See id. at 683.
Unlike the ADC's lethal injection protocol, however, Washington's protocol carefully acknowledged the risks that it engendered and provided detailed procedures specifically designed to minimize them. Thus, as the court noted, Washington's protocol reflected medical opinions as to the manner in which different methods of hanging would kill inmates and which modes of causing death were the most humane. Id. In order to avoid death by asphyxiation or decapitation, the protocol included detailed instructions on numerous factors that could affect the manner of death, including the diameter of the rope; the method of tying the knot; treating the rope with wax and boiling it to reduce elasticity; and the length of the drop in relation to body weight and the manner in which that length should be calculated. Id. at 683-85. All of these instructions were the result of careful consideration of the available scientific and medical evidence. In light of the Washington protocol's ample provision for the risks of an inhumane death, the Ninth Circuit concluded that the risk of a botched execution was "slight," and had been "minimized as much as possible." Id. at 687 & n.17.
In contrast to Washington's protocol, it is impossible to detect in the version of Administrative Directive 96-06 currently available any attempt on the ADC's part to account for the problems that can and do arise during an execution by lethal injection. This failure is
26

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particularly egregious in light of the fact that simply having a qualified person verify, visually and tactically, that the inmate is indeed anesthetized following the administration of the sodium pentothal, would go a long way towards mitigating the risk of unnecessary pain. See Exhibit 7 at ¶ 32 (Declaration of Mark Heath M.D.) Moreover, the necessity for such monitoring may be obviated by the selection of alternative, equally effective anesthetic agents and by the use of one of the drugs capable of causing cardiac arrest that does not cause excruciating pain. Id. at 13. Yet it does not appear that the ADC has even considered these or any other means of lessening the gratuitous dangers created by its protocol. This egregious failure renders the significant risk of error truly unnecessary and unconstitutional. Cf. Campbell, 18 F.3d at 687 & n.17.
C. MR. DAVIS WILL SUFFER IRREPARABLE HARM IF A PRELIMINARY INJUNCTION IS NOT GRANTED
If the State is not enjoined from executing him in accordance with Administrative Directive 96-06, Mr. Davis will likely suffer irreparable harm. Being forced to endure excruciating pain during the execution process 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). As is clear from the foregoing, there is ample evidence that Defendants’ proposed method of execution carries a significant and unacceptable risk that Mr. Davis will indeed suffer that harm. The threat of harm is both “real and immediate,” and thus the situation is one that is “ripe for injunctive relief.” See Goff v. Harper, 60 F.3d 518, 521 (8th Cir. 1995). Moreover, Mr. Davis will have no retrospective remedy for the constitutional violation, as he will no longer be alive.
D. THE BALANCE OF HARMS STRONGLY FAVORS MR. DAVIS In contrast, the harm to the State that will result from the entry of a preliminary injunction is slight. The State undoubtedly has a strong interest in the prompt execution of its judgments. The delay resulting from granting the temporary relief sought herein, however, will have little
27

Case 5:06-cv-00110-SWW Document 21-1 Filed 06/12/2006 Page 28 of 31
adverse effect upon that interest. See Gomez v. US. Dist. Ct. for Northern Dist. of Ca/., 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 an injury that can never be repaired.”). The balance of harms tips sharply in favor of entering a preliminary injunction.
E. GRANTING TEMPORARY RELIEF IS IN THE PUBLIC INTEREST Whether the State is executing its prisoners in a way that subjects them to an excruciatingly painful, torturous death is clearly a matter of vital public interest. The standards of decency and humanity in a society such as ours are gravely offended by such practices, and so it is affirmatively in the public interest to address and resolve the merits of the Plaintiffs’ claims in order to identify and put an end to unnecessary procedures that pose a risk of causing gratuitous suffering. Indeed, the citizens of the State of Arkansas, through their elected representatives, have expressly acknowledged the importance of conducting executions as humanely as possible by changing the method from electrocution to lethal injection as a result of the belief that the latter reduces unnecessary suffering. See Carol Matlack, House Votes Injection Bill, ARKANSAS GAZETTE, February 22, 1983, at 1A, 3A (noting that bill resulted from legislative staff study that found that lethal injection is the most humane method of execution) (Exhibit 18); John Brummett, Clark to Propose Bill on Selection of PSC, Fights Direct Election, ARKANSAS GAZETTE, January 6, 1983, at 10A (reporting that State Attorney General Steve Clark supported legislation that would make lethal injection the method of execution because he had read gruesome accounts of electrocutions and “[d]ying is dying, but I think you deserve to die with dignity”) (Exhibit 44). There is now compelling evidence that Arkansas’ lethal injection protocol creates a significant and unacceptable risk of, and on multiple occasions has actually resulted in, the
28

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infliction of unnecessary pain. As noted above, the claim does not become ripe for resolution until an execution is imminent but, if a preliminary injunction is not granted, the execution will necessarily take place before the issues can be adjudicated. In light of the importance of the questions involved, it is clearly in the public interest that temporary relief be granted in the instant case to solve this dilemma and permit a definitive determination of the merits to be made. “[T]he public interest only is served by enforcing constitutional rights and by the prompt and accurate resolution of disputes concerning those constitutional rights. By comparison, the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate’s constitutional rights.” Cooey v. Taft, 2006 WL 1207982 at *6 (S.D.Ohio)
F. MR. DAVIS ENGAGED IN NO UNDUE DELAY IN BRINGING THIS ACTION
Mr. Davis diligently prosecuted his constitutional claims as soon as they became ripe for review. The fact that the State of Arkansas chose to schedule his execution while the lawsuit and his Motion to Intervene were still pending, and before the Court has had the opportunity to adjudicate his claims on the merits, in no way detracts from the propriety of according him temporary relief in order to facilitate that adjudication. A challenge to a specific execution procedure becomes ripe for adjudication only when it is clear that the challenger will in fact be subjected to that particular procedure, i.e. “when the execution becomes imminent and the plaintiff knows or has reason to know of the facts giving rise to his specific challenges.” Cooey v. Taft, 2006 WL 1207982 at *3. These criteria are met when all state and federal legal challenges to the conviction and sentence have been exhausted and certiorari has been denied by the United States Supreme Court. Id.
Accordingly, Mr. Davis moved to join the instant action on May 4, 2006, just 17 days after the United States Supreme Court denied his application to file a certiorari petition, only 3
29

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days after Mr. Nooner filed the Complaint and even before his execution date was scheduled. Far from an 11th hour attempt to manipulate and abuse the system, then, the instant action is a good-faith effort to move as promptly and expeditiously as possible to protect Mr. Davis’s constitutional rights. Accordingly, the entry of the requested preliminary injunction is appropriate under Nelson v. Campbell, 541 U.S. 637 (2004), and Hill v. McDonough, 547 U.S.
(2006). IV. CONCLUSION
The purpose of this lawsuit is not to prevent the State from executing Mr. Davis. It is to prevent it from executing him in a manner that subjects him to excruciating pain and torture that is gratuitous and unnecessary and in violation of the Constitution. To avoid the risk that his execution will be performed in such a manner, Mr. Davis is entitled to relief under 42 U.S.C. § 1983. In order to allow him an opportunity to prove that entitlement, and to obtain an adjudication of the merits of his claims, Mr. Davis respectfully requests that the Court issue a preliminary injunction preventing Defendants from executing him by means of lethal injection under the protocol currently in effect in the State of Arkansas.
Respectfully Submitted,
By: /s/ Alvin Schay ALVIN SCHAY Ark. Bar No. 75176 902 West 2nd Street Little Rock, Arkansas 72201 (501) 376 7000 (501) 376 9612 aschay@msn.com Deborah Sallings Ark. Bar No. 80127 Cauley, Bowman, Carney & Williams, PLLC P.O. Box 25438
30

Case 5:06-cv-00110-SWW Document 21-1 Filed 06/12/2006 Page 31 of 31 Little Rock, Arkansas 72221-5438 (501) 312 8500 (501) 312 8505 debsal@arbs.net Counsel for Don William Davis
CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 12th day of June, 2006, the foregoing Application for Preliminary Injunction was filed using this Court’s EF/CMS electronic filing system and thereby automatically delivered electronically to Assistant Attorney General Mark Hagemeier, Catlett-Prien Tower Bldg., 323 Center Street, Suite 200, Little Rock, AR 722012610.
/s/ Alvin Schay ALVIN SCHAY
31

 
 Case 5:06-cv-00110-SWW Document 24 Filed 06/19/2006 P a g e 1 of 8

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

TERRICK TERRELL NOONER

PLAINTIFF

No. 5:06CV001 I0 SWW

LARRY NORRIS, Director, Arkansas Department of Correction; GAYLON LAY, Warden, Arkansas Department of Correction; WENDY KELLY, Deputy Director for Health and Correctional Programs; JOHN BYUS; Administrator, Correctional Medical Services, Arkansas Department of Correction; and OTHER UNKNOWN EMPLOYEES, Arkansas Department of Correction

DEFENDANTS

ORDER

Terrick Terrell Nooner ("Nooner"), a death row inmate, commenced this action pursuant

to 42 U.S.C. 5 1983, claiming that the chemical protocol and procedures used for carrying out

execution by lethal injection in Arkansas amount to cruel and unusual punishment and an

arbitrary, capricious, and irrational method of execution that violates the Fifth, Eighth, and

Fourteenth Amendments of the United States Constitution. Nooner seeks a declaration that the

State's lethal injection procedurc is unconstitutional an injunction enjoining Defendants from

carrying out the procedure in the future. On May 4,2006, Arkansas death row inmate Don

William Davis ("Davis"), who is scheduled to be executed on July 5,2006,' filed a motion to

intervene. The Court permitted Davis to intervene as a party-plaintiff pursuant to Fed. R. Civ.

P. 24(b)(2), with the understanding that he asserts the same claims and seeks the same relief as

'Nooner's execution date has not been set.

C a s e 5:06-cv-00110-SWW Document 2 4 Filed 0611912006 P a g e 2 of 8
set forth in the complaint. Before the Court is Defendants' motion to dismiss for failure to state a claim for which relief can be granted (docket entry #13) and Plaintiffs' responses in objcction (docket entries #20, #23). After careful consideration, and for the reasons that follow, the motion will be denied.
1.
In deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, all facts alleged in the complaint are assumed to be true. Doe v. Northwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8"' Cis. 1997). The complaint must be reviewed in the light most favorable to the plaintiff, McMorr-ow v. Little, 109 F.3d 432, 434 (8"' Cis. 1997), and should not be dismissed unless it is clear beyond doubt that the plaintiff can prove no set of facts thereunder which would entitle him or her to relief. I-iafley v. Lohman, 90 F.3d 264, 266 (8"' Cir. 1996). The Court may grant a motion to dismiss on the basis of a dispositive issue of law. Neitzke v. Williams,490 U.S. 3 19, 326 (1989).
A motion to dismiss is not a device for testing the truth of what is asserted or for determining whether the plaintiff has any evidence to back up what is in the complaint. ACLU Foundation v. Burr, 952 F.2d 457,467 (D.C. Cir. 1991). The issue is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims.
Id Thus, a motion to dismiss should be granted "as a practical matter . . . only in the unusual
case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Frey v. Czty ofHerculaneum, 44 F.3d 667, 671 (8"' Cis. 1995) (quoting Hishon v. King & Spulding, 467 U.S. 69, 73 (1984)).
11. Arkansas' lethal injection statute provides:

C a s e 5:06-cv-00110-SWW Document 24 Filed 06/19/2006 Page 3 of 8
The punishment of death is to be administered by a continuous intravenous injection of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent until the defendant's death is pronounced according to accepted standards of medical practice. Ark. Code Ann. 5-4-717(a)(l). The statute gives the Director of the Arkansas Department of Correction ("ADC") the responsibility to determine the substances to be uniformly administered
and the procedures to be used in any execution. See Ark. Code Ann. 5 5-4-617(a)(2).
According to allegations in the complaint, executions by lethal injection in Arkansas are carried out as follows. First, the condemned prisoner is placed on a gurney in the execution chamber, and his head and appendages are immobilized. Next, ADC employees insert IV lines into the prisoner and attach an electrocardiogram monitor. Two lay-executioners begin "attaching and plunging" up to eight syringes in a complicated sequence prescribed by ADC protocol. First one drug, then a saline flush, then two syringes of the next drug, another saline flush, and then up to three syringes of a third drug. The drugs administered are: l'hiopental, administered to cause unconsciousness; Pancuronium bromide, administered to cause paralysis and stop all movement including respiration; and Potassium chloride, to stop the heart. When the prisoner exhibits no sign of life, the warden summons the coroner to pronounce death.
Potassium chloride bums intensely as it travels through the veins to the heart. Plaintiffs claim, for reasons set forth in the complaint, the foregoing procedure creates a risk of gratuitous infliction of unnecessary pain. According to Plaintiffs, it is possible to conduct execution by lethal injection in a humane manner that complies with Arkansas' lethal injection statute.
111.
In support of their motion to dismiss, Defendants assert that PlaintiffNooner2has failed
2Defendants filed their motion to dismiss before Plaintiff Davis intervened in this case. Defendants have not amended their motion to make specific allegations with respect to Davis's

Case 5.06-cv-00110-SWW Document 24 Filed 06/19/2006 Page 4 of 8
to exhaust his administrative remedies, his complaint must be dismissed as a unauthorized, successive petition for habeas corpus, and his claims are barred under the applicable statute of limitations and pursuant to the equitable laches doctrine. The Court will consider each argument.
Exhaustion The Prison Litigation Reform Act ("PLRA") provides that, "[nlo action shall be brought
with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The PLRA's exhaustion requirement applies to all suits about prison life,' and it requires prisoners to exhaust administrative processes before commencing suit in federal court. See Porter v. Nussle, 122 S. Ct. 983, 988,992 (2002).
Defendants assert that Nooner is required to "provide proof that he exhausted all
administrative remedies before he can bring a 5 1983 action." The Court disagrees. The PL,RArs
exhaustion requirement is not a heightened pleading requirement-a prisoner's failure to exhaust is an affirmative defense that the defendant has the burden to plead and to prove. See Nerness v. Johnson, 401 F.3d 874, 876 (8"' Cir. 2005)(citing Foulkv.harrier, 262 F.3d 687, 697 (8th Cir. 2001)).
Administrative exhaustion is required even where a prison grievance process will not provide the type of relief sought by a prisoner. See Boofh v. Churner, 121 S. Ct. 1818, (2001).
claims. 3The Court assumes, without deciding, that Nooner's constitutional challenge to
Arkansas' chosen process for carrying out his death sentence as an "inmate suit about prison life."

Case 5:06-cv-00110-SWW Document 24 Filed 06/19/2006 Page 5 of 8
tlowever, a prisoner need only exhaust "such administrative remedies as are available" and exhaustion is not required when grievance officers have no authority to act on the subject of the complaint. See id. at 1823 n.4("Without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust."). Arkansas law gives the Director of the ADC sole responsibility and authority for determining the substances to be administered and the procedures to be used in any execution. See Ark. Code Ann. $ 5-4-617(a)(2).
Nooner asserts that the ADC's inmate grievance process offers no available remedy because the grievance tribunal, which does not include the Director of the ADC, has no authority to take action with regard to his complaint. Nooner states that before he commenced this l a w s ~ ~ i t his attorney wrote Larry Norris, Director of the ADC, and advised him of the claims presented in this lawsuit. Nooner states that, on behalf of Director Norris, the Arkansas Attorney General responded as follows: "While Mr. Norris is aware that several states' protocol has been, and some currently are, the subject of litigation, he believes the protocol used currently insures the necessary anesthetization for the duration of the execution procedure and satisfies Constitutional requirements." Docket entry #20(citing May 25, 2006 letter from Joseph Svoboda). Based on the evidence presently before the Court, the Court finds that Defendants have failed to show that Nooner has failed to exhaust his available administrative remedies.
Habeas Corpus On June 12, 2006, the Supreme Court issued a unanimous decision in Hill v.
McDonough,2006 WL, 1584710 (U.S. June 12, 2006) ruling that a Florida death row inmate,
Clarence I-Iill, may use 42 U.S.C. 5 1983 as a vehicle to challenge the constitutionality of
Florida's lethal injection protocol, which is similar to the three-drug injection protocol

Case 5.06-cv-00110-SWW Document 24 Filed 06/19/2006 Page 6 of 8
challenged in this lawsuit. Like Plaintiffs, Hill seeks to enjoin the State from executing him according to the three-drug protocol, and he claims that the Florida Department of Corrections could choose other means of lethal injection that would meet constitutional standards.
The Supreme Court reversed the Eleventh Circuit's determination that Hill's civil rights challenge to Florida's lethal injection protocol is the functional equivalent of an unauthorized, successive habeas petition. The Court noted that ifthe relief sought would foreclose Hill's execution, it might be proper to recharacterize his complaint as an action for habeas corpus. Id, at *7. Howcver, like Arkansas' lethal injection statute, Florida law prescribes lethal injection as the State's method of execution, but it does not specify a specific protocol for lethal injection
and leaves those details to the Florida Department of Corrections. See Fla. Stat. Q:
922.105(l)(stating that a death sentence "shall be executed under the direction of the Secretary of Corrections or the secretary's designee"). Because Florida law does not specify a particular lethal injection protocol, the Supreme Court concluded that Hill's lawsuit left the State free to use an alternative lethal injection procedure. Thus, granting Hill injunctive relief could not be seen as barring execution of his sentence. Hll, 2006 WI, 1584710 at "5. The same is true in this case, and
5 1983 is a proper vehicle for Plaintiffs' claims. Laches
Dismissal of a claim on the ground of laches, an affirmative defense, requires a showing of unreasonable and unjustified delay in bringing a claim, and material prejudice to the defendant as a result of the delay. See Advanced Cardiovascular Systems, Inc. v. Scimed Lij2 Systems, Inc. 988 F.2d 1 157, 1161 (8"' Cir. 1993). Defendants assert the defense in the context of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) confines a

C a s e 5:06-cv-00110-SWW Document 24 Filed 06/19/2006 P a g e 7 of 8
court's inquiry to allegations set forth in the complaint, unless matters outside the pleadings are presented to and not excluded by the court, in which case the motion is treated as one for summary judgment. See id. ("The strictures of Rule 12(b)(6), wherein dismissal of the claim is based solely on the complainant's pleading, are not readily applicable to a determination of laches."). In this case, the allegations in the complaint do not confirm the existence of an unreasonable, inexcusable delay on the part of Nooner or Davis in commencing suit, or resulting prejudice to Defendants. Furthermore, Defendants provide no additional evidence to support their defense. The Court has no means, at this time, to determine whether Plaintiffs' claims are barred by laches.
Statute of Limitations
The statute of limitations for 5 1983 actions is the forum state's statute of limitations for
personal injury actions, which in Arkansas is three years. See Morlon I). Cily oflittle Rock, 934 F.2d 180, 182 (8"' Cir. 1991). Although state law determines the limitations period for filing
5 1983 claims, federal law determines when a cause of action accrues. See While v. Gauri.son,70
F.3d 1276 (8"' Cir. 1995) (unpublished table opinion). Under fcdcral common law, a cause of action accrues when a plaintiff "discovers, or with due diligence should have discovered, the injury that is the basis of the litigation." Union Pacific R. Co. v.Beckham, 138 F.3d 325, 330 (8"' Cir. 1998).
Defendants propose that Nooner's cause of action accrued on the date his death sentence was imposed. Defendants state that Nooner was sentenced in 1996, but Nooner alleges, in the

Case 5:06-cv-00110-SWW Document 24 Filed 06/19/2006 Page 8 of 8
complaint, that his sentence was imposed in 1993. Regardless of the actual sentencing date, the Court finds that the date Nooner was sentenced does not necessarily mark the date he discovered or should have discovered the State's specific lethal injection protocol and whether it carries a risk of unnecessary pain. The complaint does not show, on its face, when Plaintiffs' cause of action accrued or whether their claims are time-barred under the applicable statutc of limitations Accordingly, dismissal on such grounds is not possible.
For the reasons stated, Defendants motion to dismiss (docket entry #13) is DENIED. IT IS SO ORDERED THIS 19"' DAY OF JUNE, 2006.
/s/Susan Webber Wright UNITED STATES DISTRICT JUDGE

 
 Case 5:06-cv-00110-SWW Document 29 Filed 06/26/2006 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

TERRICK TERRELL NOONER, and
DON WILLIAMS DAVIS

PLAINTIFF INTERVENOR PLAINTIFF

No. 5:06CV00110 SWW VS.

LARRY NORRIS, Director, Arkansas Department of Correction; GAYLON LAY, Warden, Arkansas Department of Correction; WENDY KELLY, Deputy Director for Health and Correctional Programs; JOHN BYUS; Administrator, Correctional Medical Services, Arkansas Department of Correction; and OTHER UNKNOWN EMPLOYEES, Arkansas Department of Correction

DEFENDANTS

ORDER

Terrick Terrell Nooner (“Nooner”) and Don Williams Davis (“Davis”), Arkansas death-

row inmates, bring this action pursuant to 42 U.S.C. § 1983 claiming that the protocol for

carrying out execution by lethal injection in Arkansas violates the Fifth, Eighth, and Fourteenth

Amendments of the United States Constitution. Plaintiffs seek a declaration that the protocol is

unconstitutional, and an injunction enjoining Defendants from carrying out future executions in

accordance with the protocol.

Before the Court is Plaintiff Davis’s motion for a preliminary injunction (docket entry

#21) asking the Court to stay his July 5, 2006 execution and permit him to litigate his

constitutional claims. Defendants have responded (docket entry #28), and the matter is ready for

Case 5:06-cv-00110-SWW Document 29 Filed 06/26/2006 Page 2 of 7
decision. After careful consideration, and for the reason that follow, the Court concludes that the motion for a preliminary injunction should be granted.
I. In 1992, Davis was convicted of capital murder, burglary, and theft of property and sentenced to death. His conviction and sentence were affirmed on direct appeal,1 and his petition for post-conviction relief in state court was denied.2 On September 14, 2005, the Eighth Circuit affirmed denial of Davis’s petition for habeas relief,3 and on April 17, 2006, the United States Supreme Court denied Davis’s petition for a writ of certiorari.4 Plaintiff Nooner initiated this § 1983 action on May 1, 2006, and on May 4, 2006, Davis filed a motion to intervene as a party plaintiff. On May 11, 2006, Governor Mike Huckabee scheduled Davis’s execution for July 5, 2006. On May 26, 2006, the Court granted Davis’s motion to intervene, and on June 16, 2006, Davis filed the present motion for a preliminary injunction. Arkansas’ lethal injection statute provides that the “punishment of death is to be administered by a continuous intravenous injection of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent until the defendant's death is pronounced according to accepted standards of medical practice.” Ark. Code Ann. 5-4-17(a)(1). Arkansas law gives the Director of the Arkansas Department of Correction (“ADC”) the responsibility to determine the substances to be administered and the procedures to be used in
1Davis v. State, 314 Ark. 257 (1993), cert. denied, 511 U.S. 1026 (1994). 2Davis v. State, 354 Ark. 161 (2001). 3Davis v. Norris. 423 F.3d 868 (8th Cir. 2005). 4Davis v. Norris, 126 S. Ct. 1826 (2006).
2

Case 5:06-cv-00110-SWW Document 29 Filed 06/26/2006 Page 3 of 7
any execution. See Ark. Code Ann. § 5-4-617(a)(2). The Director’s protocol for execution by lethal injection, set forth in ADC Administrative Directive 96-06 (“AD 96-06"), calls for the administration of three chemicals in the following order: (1) a 2-gram injection of sodium pentothal (also known as thiopental), administered to cause unconsciousness; (2) 2, 50milligram injections of pancuronium bromide, administered to cause paralysis; and (3) up to 3, 50-milliequivalent injections of potassium chloride, to stop the heart.5 Each injection is followed by a saline flush. According to AD 96-06, the injections are administered by way of control devices located in a control room, separate from the execution chamber. The control devices are connected, by extension tubing, to IV catheters inserted into each arm of the condemned inmate. The catheters are inserted by an “IV team” and the injections are administered by executioners, whose identities are kept secret. AD 96-06 contains no provision requiring that the IV team or executioners have any type of medical training or certification.6
Davis alleges that the State’s protocol creates a substantial risk that the first injection (2 grams of sodium pentothal) will fail to render him unconscious to the point that he will not experience intense pain and agony after the administration of pancuronium bromide and potassium chloride.
Davis’s medical expert, Mark J. S. Heath, M.D., a board-certified anesthesiologist and the Assistant Professor of Clinical Anesthesiology at Columbia University in New York City, states that the ADC’s lethal injection procedure creates medically unacceptable risks of inflicting
5Docket entry #21, Ex. 1 (ADC Administrative Directive 96-06). 6The State asserts that the protocol requires the use of trained individuals for both the placement of the IV lines and the administration of chemicals. Docket entry #28, at 9. The Court has carefully reviewed ADC 96-06 and finds no such provision.
3

Case 5:06-cv-00110-SWW Document 29 Filed 06/26/2006 Page 4 of 7
excruciating pain and suffering. See docket entry #21, Ex. 1 (Heath Decl.), ¶ 51. In his declaration, Dr. Heath explains that pancuronium bromide stops all movement, including that necessary to breathe, but it has no effect on the ability to feel pain, and potassium chloride burns intensely as it travels through the veins to the heart. Thus, if a condemned inmate is conscious when the pancuronium bromide and potassium chloride are administered, he or she will feel the sensations of slow suffocation and excruciating pain.
Dr. Heath maintains that the ADC’s protocol creates an unacceptable risk that condemned inmates will be conscious for the duration of the execution procedure. He states that the protocol fails to comply with medical standards of care for inducing and maintaining anesthesia and the American Veterinary Medical Association’s standards for the euthanasia of animals. Dr. Heath finds that the protocol fails to address several foreseeable situations in which human or technical error could result in the failure to successfully administer the 2-gram dose of sodium pentothal. Further, Dr. Heath opines that the protocol creates a substantial risk of unnecessary pain which is easily remedied.
In addition to Dr. Heath’s declaration, Davis submits the declaration of a witness to the 1992 execution of Steven Hill. The witness states: “Approximately 3-5 minutes after the IV fluid began to flow, I noticed Steven struggling to breathe. He was strapped down, but his chest was heaving . . . . He appeared to be gasping for air. Within another minute, he turned a bright red color and then lay completely still.” Docket entry #21, Ex. 38. Davis also submits several newspaper articles containing eye-witness accounts of ADC executions which, according to Davis, indicate that inmates remained conscious and suffered pain during their executions. See docket entry #21, Exs. 28, 34, 37, 42, 45, 49.
4

Case 5:06-cv-00110-SWW Document 29 Filed 06/26/2006 Page 5 of 7
II. The factors to consider when deciding whether to grant or deny motions for preliminary injunctions include (1) the threat of irreparable harm to the movant; (2) the state of the balance between his harm and the injury that granting the injunction will inflict on other parties involved in the litigation; (3) the probability the movant will succeed on the merits; and (4) the public interest. See Dataphase Sys., Inc. v. CL Sys., 640 F.2d 109, 113 (8th Cir. 1981). Additionally, a court considering a stay of execution must apply “‘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 an entry of a stay.’” Hill v. McDonough, 2006 WL 1584710, at *8 (U.S. June 12, 2006)(quoting Nelson v. Campbell, 124 S. Ct. 2117, 2126 (2004)). The Court finds that Davis has shown that he is personally under a threat of irreparable harm. If Davis remains or becomes conscious during the execution, he will suffer intense pain that will never be rectified. The Court further finds that the balance of potential harms favors Davis. If a stay is granted and Davis’s allegations prove true, he and others will be spared subjection to an unconstitutional execution procedure, and the State’s interest in enforcing death penalties in compliance with constitutional standards will be served. If, on the other hand, a stay is granted and Davis’s allegations are without merit, the State can carry out Davis’s execution without the specter that the ADC’s protocol carries an unreasonable risk of inflicting unnecessary pain. The State argues that the equities favor the State because Davis unjustifiably delayed bringing his claims. However, Davis moved to intervene in this case before the State set his execution date and shortly after he exhausted all means for challenging his conviction. The
5

Case 5:06-cv-00110-SWW Document 29 Filed 06/26/2006 Page 6 of 7
Court disagrees that Davis delayed pursuing his claims.7
Next, the Court must consider the probability that Davis will succeed on the merits.
The Eighth Amendment prohibits punishments repugnant to “‘the evolving standards of decency
that mark the progress of a maturing society’” or those involving “‘unnecessary and wanton
infliction of pain.’” Estelle v. Gamble, 97 S. Ct. 285, 290, 290 (1976) (quoting Trop v. Dulles, 78
S. Ct. 590, 598 (1958)(first quote); Gregg v. Georgia, 96 S. Ct. 2909, 2925 (1976) (second
quote)).
The State contends that Davis has not shown that he might succeed on the merits because
Dr. Heath’s declaration offers no information about the probability that Davis might experience
unnecessary pain. However, Davis need not show a mathematical probability of success at trial
7The Eighth Circuit’s opinion in Taylor v. Crawford, 445 F.3d 1095 (8th Cir. 2006), indicates that the Court of Appeals would agree that Davis did not delay bringing his claims. In Taylor, Larry Crawford, sentenced to death in 1991, brought claims under § 1983, challenging Missouri’s three-chemical protocol for executions by lethal injection. Like Davis, Taylor initiated his lawsuit after he exhausted his state post-conviction remedies and after his petitions for habeas relief were denied in federal court. Also similar to this case, the State of Missouri set Taylor’s execution date after he commenced suit under § 1983. The district court stayed Taylor’s execution, but gave no reasons for the stay, other than the court’s inability to hold an evidentiary hearing before the scheduled execution date.
The Eighth Circuit reversed the stay after concluding that the State’s interest in prompt execution of its judgment was not outweighed by the district court’s scheduling difficulties. The Eighth Circuit ordered that the case be reassigned to a district judge who could hear the case immediately “[i]n recognition of Mr. Taylor’s equally strong interest in having an evidentiary hearing on his claims prior to his execution.” Taylor, 445 F.3d at 1098-99. The district court followed the Eighth Circuit’s instructions and determined that Taylor’s claims had no merit. Taylor appealed, arguing that the district court, in its haste to make a decision before Taylor’s execution date, prevented him from calling medical witnesses. On appeal, the Eighth Circuit stayed Taylor’s execution, concluding that it asked the district court to do too much in too little time. The Court of Appeals stated, “In view of the existing record, the importance of the issue to this plaintiff as well as others, and the likelihood of recurrence of these identical issues in future Missouri death penalty cases, we remand for . . . a continuation of the hearing . . . .” Taylor, 445 F.3d at 1099.
6

Case 5:06-cv-00110-SWW Document 29 Filed 06/26/2006 Page 7 of 7
before a stay can be granted. It is enough that Davis has raised serious questions that call for deliberate investigation. See Dataphase, 640 F.2d at 113 (“But where the balance of other factors tip decidedly toward movant a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation.”).
Finally, the Court finds that the public interest will be served if the Court holds an evidentiary hearing on Plaintiffs’ claims. Crime victims and the general public have an important interest in the timely enforcement of criminal sentences. However, failure to consider Davis’s allegations would ignore the equally important public interest in the humane and constitutional application of the State’s lethal injection statute.
III. For the reasons stated, Plaintiff Davis’s motion for a preliminary injunction (docket entry #21) is GRANTED. IT IS HEREBY ORDERED that the State of Arkansas is STAYED from implementing an order for the execution of Don William Davis until further notice from this Court. The Court will attempt to schedule an expedited hearing. The time of the hearing will depend on the Court’s schedule as well as the schedules of others involved. IT IS SO ORDERED THIS 26TH DAY OF JUNE, 2006.
/s/Susan Webber Wright UNITED STATES DISTRICT JUDGE
7

 
 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

TERRICK TERRELL NOONER

PLAINTIFF

No. 5:06CV00110 SWW/JFF

LARRY NORRIS, Director, Arkansas Department of Correction; GAYLON LAY, Warden, Arkansas Department of Correction; WENDY KELLY, Deputy Director for Health and Correctional Programs; JOHN BYUS; Administrator, Correctional Medical Services, Arkansas Department of Correction; and OTHER UNKNOWN EMPLOYEES, Arkansas Department of Correction

DEFENDANTS

ORDER Plaintiff Terrick Terrell Nooner (“Nooner”), a death row inmate, brings this action under 42 U.S.C. § 1983, claiming that Arkansas’ lethal injection procedure and protocol amounts to cruel and unusual punishment and an arbitrary, capricious, and irrational method of execution that violates the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. Nooner seeks a declaration that the State’s lethal injection procedure is unconstitutional an injunction enjoining Defendants from carrying out the procedure in the future. Before the Court is a motion to intervene by Arkansas death row inmate Don William Davis (“Davis”). Nooner has no objection to intervention, see docket entry #3, ¶9, and Defendants have responded in objection to intervention (docket entry #9). After careful consideration, and for the reasons that follow, Davis will be permitted to intervene pursuant to Fed. R. Civ. P. 24(b)(2).
1

Davis, who is scheduled to be executed on July 5, 2006, seeks to intervene as of right, pursuant to Fed. R. Civ. P. 24(a)(2) or, in the alternative, by permissive intervention under Fed. R. Civ. P. 24(b)(2). Pursuant to Fed. R. Civ. P. 24(c), a motion to intervene “shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.” No such pleading accompanies Davis’s motion. However, Davis states that if he is permitted to intervene in this case, rather than file a separate action, it will promote judicial economy. Based on this statement, the Court understands that Davis wishes to intervene as a party plaintiff and assert the same claims and seek the same relief as set forth in Plaintiff Nooner’s complaint.
A party seeking intervention of right under Rule 24(a)(2) must establish (1) a recognized interest in the subject matter of the litigation, (2) the interest might be impaired by the disposition of the case, and (3) the interest will not be adequately protected by the existing parties. See Fed. R. Civ. P. 24(a)(2); see also South Dakota ex rel Barnett v. U.S. Dept. of Interior, 317 F.3d 783, 785 (8th Cir. 2003).
In support of his application, Davis states that his interests will not be adequately represented by the existing parties because, unless he is permitted to intervene, his execution will go forward without regard to this proceeding. Defendants point out that Davis can protect his interest in the subject matter of this litigation by filing a separate lawsuit, which would warrant expedited treatment in light of his July 5 execution date. The Court agrees that, because Davis can protect his interest by way of a separate lawsuit, he is unable to establish that the disposition of this case will impair his interest. Accordingly, Davis is not entitled to intervention of right under Rule 24(a)(2).
2

Under Fed. Rule Civ. P. 24(b)(2), upon timely application,1 anyone may be permitted to intervene “when an applicant’s claim or defense and the main action have a question of law or fact in common.” Davis meets this criterion. Additionally, the Court finds that Davis’s intervention will neither unduly delay nor prejudice the adjudication of the rights of the original parties. Accordingly, the Court will permit Davis to intervene pursuant to Rule 24(b)(2).2
IT IS THEREFORE ORDERED that the motion to intervene (docket entry #3) is GRANTED. Don William Davis is granted leave to intervene as a plaintiff in this action.
IT IS SO ORDERED THIS 26TH DAY OF MAY, 2006. /s/Susan Webber Wright UNITED STATES DISTRICT JUDGE
.
1Nooner filed his complaint on May 1, 2006, and Davis filed his motion to intervene on May 4, 2006. The Court finds that the motion to intervene is timely.
2Defendants note that before the close of its current term on June 26, 2006, the United States Supreme Court will decide whether a Florida death row inmate’s claim brought under § 1983 challenging that state’s lethal injection procedure must be brought as a habeas corpus petition under § 2254. See Hill v. Crosby, 126 S. Ct. 1189, 1190 (2006). Defendants assert that if the Supreme Court answers yes to the foregoing question, this case “will have two defendants seeking habeas relief from their distinct sentences and convictions and subject, on the unique facts of their individual cases, to different procedural bars.” Docket entry #9, at 5. However, if the Supreme Court’s decision in Hill requires that Nooner and Davis pursue their claims by way of petitions for habeas corpus, any such petitions will proceed separately.
3

 
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 Case 5:06-cv-00110-SWW Document 52 Filed 01/03/07 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

TERRICK TERRELL NOONER, et al.,

Plaintiffs

v.

Civil Action No. 5:06-cv-00110-SWW

LARRY NORRIS, Director, Arkansas Department of Correction, et al.,

Defendants.

RESPONSE TO PRO SE MOTION Comes now undersigned counsel, Julie Brain of the Arkansas Federal Public Defender Office, appointed counsel for Plaintiff Terrick Terrell Nooner, and respectfully submits this Response to Mr. Nooner’s pro se pleading, [Doc. 47], pursuant to this Court’s Order of December 15, 2006, [Doc. 49]. Counsel respectfully urges the Court to decline to consider Mr. Nooner’s pro se pleading, in accordance with its usual policy of rejecting motions filed pro se by parties who are represented by counsel, as it has on previous occasions. On May 1, 2006, Plaintiff, Terrick Terrell Nooner, through undersigned counsel, initiated the instant action pursuant to 42 U.S.C. § 1983, challenging the constitutionality of the lethal injection protocol selected and used by Defendants for executions in the State of Arkansas. Since that time Mr. Nooner, who suffers from severe mental illness and has a lengthy history of filing voluminous, largely incomprehensible lawsuits and pleadings
1

Case 5:06-cv-00110-SWW Document 52 Filed 01/03/07 Page 2 of 6
in the local, state and federal courts of Arkansas and Missouri, has filed a variety of pro se pleadings under the case number of the instant action and that of the associated appeal in the Eighth Circuit Court of Appeals.
For example, on August 9, 2006, the Court received a document styled “Motion for Disclosure of Impeachment Evidence,” with a number of attachments in the form of documents relating to the Arkansas Department of Correction inmate grievance procedure. See Exhibit 1. The pleading purported to request that Defendants “[p]roduce suspension of all alias employed federal officer’s [sic] in ADC if no medical photograph is made of my damaged penis for exhibit to court ... [and] [p]roduce search and seizure by criminal court clerk of rape evidence on my penis.” Id. On two occasions the Court has formally instructed Mr. Nooner that he must pursue such claims in a separate lawsuit, [Doc.’s 38, 44], to no avail.
On August 21, 2006, the Eighth Circuit Court of Appeals received a pleading from Mr. Nooner entitled “Motion of Civil Action Complaint Against En Banc Justices of 8th Circuit” and “Motion for Production of Documents and Entry Upon Land for Inspection.” See Exhibit 2. The Clerk of Court instructed Mr. Nooner that, as a party represented by counsel, all filings must be made by his attorney. Id. The Clerk responded in similar fashion to a pleading received from Mr. Nooner on August 24, 2006, entitled “Motion for Injunction Pending Appeal.” See Exhibit 3. In that Motion, Mr. Nooner requested an “order suspending Attorney Generals Svoboda and Hagermeier under 28 USC § 528 for failure to disclose evidence of sexual misconduct. They didn’t file a motion for
2

Case 5:06-cv-00110-SWW Document 52 Filed 01/03/07 Page 3 of 6
protective order to avoid medical photograph of my damaged penis.” Id. Most recently, the Eighth Circuit Court of Appeals received a pleading from Mr.
Nooner on December 18, 2006, that is styled “Motion for Voluntary Dismissal” and is similar to the pleading received by this Court. See Exhibit 4. The Clerk of Court once again responded to Mr. Nooner, reminding him that he is represented by counsel and counsel must file all motions and pleadings in the appeal. Id.
Undersigned counsel is in regular telephonic and in-person contact with Mr. Nooner. Counsel last visited Mr. Nooner at the ADC Varner Unit on December 28, 2006, and had a very pleasant visit. To the limited extent that counsel is able to meaningfully communicate with Mr. Nooner regarding legal matters, counsel was able to ascertain that Mr. Nooner has no desire that the instant action be dismissed as to him per se. Rather, as is evident from many of Mr. Nooner’s actions and pleadings in this and many other cases that he has filed, his overriding goal is to seek redress for, and relief from, the physical harm that he perceives is being repeatedly inflicted on him by the staff of the ADC. As the courts routinely do not file these pro se motions, Mr. Nooner continues to seek court attention to what he perceives to be his ongoing mistreatment.
Mr. Nooner believes very strongly that he is being seriously and permanently injured by ADC staff in several ways. His chief complaint is that staff have damaged his penis, implanting a device with which they control his body, and that his repeated requests to have the damage photographed for purposes of litigation have been ignored. He also complains that staff are contaminating his food, and that a variety of people he is
3

Case 5:06-cv-00110-SWW Document 52 Filed 01/03/07 Page 4 of 6
familiar with from the free world, including people from the neighborhood of Little Rock that he used to live in, are impersonating ADC correctional officers, appearing around him in the prison and raping him.
Mr. Nooner’s purpose in filing his pro se pleadings in this case, including the motion to which the Court directed undersigned counsel to respond, is to try to convince some court, somewhere, to listen to and act upon the only claims that are real to him and that make sense within the context of his delusional thought disorder. The urgency with which Mr. Nooner seeks to have his claims heard, and the fervor with which he believes in their merit, is completely understandable in the context of the psychotic disorder that he suffers and the particular fixed delusions that are caused by it. Undersigned counsel is actively seeking the opportunity to identify and diagnose Mr. Nooner’s condition in the context of another action, a Petition for Writ of Habeas Corpus which challenges the ADC’s refusal to allow counsel’s mental health professionals access to Mr. Nooner to evaluate his condition. See Nooner v. Norris, No. 5:96-cv-00495GH (E.D. Ark), appeal docketed, No. 06-3487 (8th Cir.). Counsel is unable to convey to Mr. Nooner that this Court, in this case, is unable to address the matters that are of concern to him, or that his interests will best be served by continuing to raise those concerns in separate lawsuits.
The proceedings in the instant case are reminiscent of the way in which Mr. Nooner’s mental illness interfered with his ability to comprehend the scope of the prior habeas corpus action in which his appointed counsel challenged his conviction and sentence of death. See Nooner v. Norris, 402 F.3d 801 (8th Cir. 2005). Before the
4

Case 5:06-cv-00110-SWW Document 52 Filed 01/03/07 Page 5 of 6
district court, Mr. Nooner filed a pro se pleading apparently seeking to dismiss his habeas petition in its entirety and waive federal court review of his capital conviction and sentence. Id. at 804.
An inquiry into his competency to waive his appeals, however, revealed that Mr. Nooner did not wish to “volunteer” for execution after all. Id. at 806. He had no desire to be executed, nor did he comprehend that withdrawing his petition might hasten his death; to the contrary, he had a delusional belief that “withdrawing his habeas petition would trigger a series of events (the setting of an execution date and his appearance before a clemency board) that would result in a ‘hidden or removed lawsuit’ that would exonerate him.” Id. The Eighth Circuit accordingly found that Mr. Nooner’s actions could not be deemed knowing and voluntary, and proceeded to adjudicate the merits of his petition. Id.
A district court has no obligation to entertain pro se motions filed by a represented party. See, e.g., Abdullah v. United States, 240 F.3d 683, 686 (8th Cir. 2001); Taylor v. Dickel, 293 F.3d 427, 429 (8th Cir. 2002). In light of Mr. Nooner’s prolific history of filing pleadings pro se that are manifestations of his delusional beliefs and symptomatic of his severe mental illness, the Court should decline to entertain Mr. Nooner’s most recent pleading just as it has rejected his previous submissions.
5

Case 5:06-cv-00110-SWW Document 52 Filed 01/03/07 Page 6 of 6
Respectfully submitted, JENNIFFER HORAN FEDERAL DEFENDER
By: /s/ Julie Brain Julie Brain Assistant Federal Public Defender 1401 W. Capitol, Suite 490 Little Rock, Arkansas 72201 (501) 324-6114 (501) 324-5630 fax
CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 3rd day of January, 2007, the foregoing Response to Pro Se Motion was filed using this Court’s EF/CMS electronic filing system and thereby automatically delivered electronically to Assistant Attorneys General C. Joseph Cordi and Joseph V. Svoboda, Catlett-Prien Tower Bldg., 323 Center Street, Suite 200, Little Rock, AR 72201-2610.
/s/ Julie Brain Julie Brain
6

 
 Case 5:06-cv-00110-SWW Document 63 Filed 05/07/07 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

TERRICK TERRELL NOONER, and
DON WILLIAMS DAVIS

PLAINTIFF INTERVENOR PLAINTIFF

No. 5:06CV00110 SWW VS.

LARRY NORRIS, Director, Arkansas Department of Correction; GAYLON LAY, Warden, Arkansas Department of Correction; WENDY KELLY, Deputy Director for Health and Correctional Programs; JOHN BYUS; Administrator, Correctional Medical Services, Arkansas Department of Correction; and OTHER UNKNOWN EMPLOYEES, Arkansas Department of Correction

DEFENDANTS

ORDER

Before the Court are pro se motions filed by Plaintiff Terrick Terrell Nooner (“Nooner”)

for voluntary dismissal (docket entries #46, #55, #59), and responses by Federal Public Defender

Julie C. Brain and Defendants (docket entries #52, #61, #63). After careful consideration, the

Court finds that Nooner’s pro se motions should be denied.

Represented by Federal Public Defender Julie C. Brain, Arkansas death-row inmate

Terrick Terrell Nooner commenced this action pursuant to 42 U.S.C. § 1983, claiming that the

procedures and protocol used for carrying out execution by lethal injection in Arkansas are

unconstitutional. Death-row inmates Don William Davis and Jack Harold Jones, Jr. sought and

1

Case 5:06-cv-00110-SWW Document 63 Filed 05/07/07 Page 2 of 3
were granted leave to intervene as party-plaintiffs.1 Nooner has personally submitted several documents for filing that contain allegations
which have no bearing on the issues in this case. Nooner alleges, for example, that prison employees have injured his penis and contaminated his food. By orders entered August 8, 2005 and December 13, 2006, the Court advised Nooner that it would take no action with regard to his pro se submissions and that if he wished to pursue additional claims, he must do so in a separate proceeding (docket entry #39, #44).
On December 14, 2006, the Court received a document from Nooner entitled “Motion of Voluntary Dismissal” in which he states: “I demand voluntary dismissal of this civil action or you produce the DNA blood test so I can exploit my digestion is infected because defendant spiked food.” Docket entry #46. Nooner has filed two amendments to his motion. In his most recent amendment, filed April 5, 2007, Nooner complains that Plaintiff Davis was permitted to intervene in this case without his consent and that Plaintiffs Davis and Jones have interfered with his mental evaluations.
Defendants state they have no objection to Nooner’s motion. However, Federal Defender Brain asserts that that Nooner’s so-called motion for voluntary dismissal is simply another attempt by him to have the Court consider matters unrelated to this case. Attorney Brain reports that she is in regular contact with Nooner, and she has concluded that he has “no desire that the instant action be dismissed as to him per se.” Docket entry #52, at 3.
1On June 12, 2006, Plaintiff Davis filed a motion for a preliminary injunction seeking a stay of his execution, which had been scheduled for July 5, 2006. By order entered June 26, 2006, the Court granted Davis’s motion, and on June 30, 2006, Defendants appealed the Court’s decision. The appeal is currently pending.
2

Case 5:06-cv-00110-SWW Document 63 Filed 05/07/07 Page 3 of 3 The Court agrees that the content of Nooner’s filings indicate that his goal is to expand, rather than dismiss, his claims. Based on this finding, and Federal Defender Brain’s report that, after consultation with her client, she has determined that he has no desire to withdraw from this case, Nooner’s original motion for voluntary dismissal and his amended motions (docket entries #46, #55, #59) are hereby DENIED. IT IS SO ORDERED THIS 7TH DAY OF MAY, 2007.
/s/Susan Webber Wright UNITED STATES DISTRICT JUDGE
3

 
 Case 5:06-cv-00110-SWW Document 75 Filed 07/17/07 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

TERRICK TERRELL NOONER DON WILLIAM DAVIS JACK HAROLD JONES, JR.

PLAINTIFF INTERVENOR-PLAINTIFF INTERVENOR-PLAINTIFF

v.

No. 5:06-CV- 110 SWW

LARRY NORRIS, Director, Arkansas Department of Correction; GAYLON LAY, Warden, Arkansas Department of Correction; WENDY KELLY, Deputy Director for Health and Correctional Programs, Arkansas Department of Correction; JOHN BYUS, Administrator, Correctional Medical Services, Arkansas Department of Correction; and OTHER UNKNOWN EMPLOYEES, Arkansas Department of Correction

DEFENDANTS

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This is a civil rights lawsuit brought by three Arkansas prisoners who were

convicted of capital murder and sentenced to death. The prisoners challenge the

Arkansas protocol for lethal injection.

Plaintiffs’ Complaint is replete with unsupported assertions, but at bottom the

Complaint alleges that Arkansas’ three drug lethal injection protocol is unconstitutional

in violation of the Eighth Amendment’s ban on cruel and unusual punishment. Plaintiffs’

primary contention is that the protocol unreasonably risks subjecting the condemned

Case 5:06-cv-00110-SWW Document 75 Filed 07/17/07 Page 2 of 15
prisoner to unnecessary pain. In particular, Plaintiffs contend that: (1) execution by lethal injection is essentially a surgical procedure and should be conducted according to the same approach used in hospitals for surgery; (2) anesthesiologists or comparable persons must be employed to carry out the execution procedures; (3) the amount of the first drug prescribed by the protocol to be given to the condemned prisoner is insufficient adequately to anesthetize the prisoner; and (4) the second and third drugs used for lethal injection result in unconstitutional pain. Each of these contentions is factually incorrect and/or legally insufficient and has already been rejected by the United States Court of Appeals for the Eighth Circuit.
Arkansas’ lethal injection protocol uses the same three drugs prescribed by numerous other States that provide for execution by lethal injection. Challenges to the use of this three drug protocol have been rejected across the nation. In particular, Arkansas’ protocol is substantially identical to the protocol used by the State of Missouri. In June of 2007 the United States Court of Appeals for the Eighth Circuit upheld Missouri’s protocol in response to a challenge by Missouri prisoners raising claims nearly identical to the ones in the instant suit. The Court of Appeals specifically held that the protocol did not violate the Constitution by subjecting condemned prisoners to an unreasonable risk of unnecessary pain noting that: (1) the protocol is designed to ensure a quick, painless death and “no State can carry out an execution in the same manner that a hospital monitors an operation;” (2) “there is no need for the continuing careful, watchful eye of an anesthesiologist or one trained in anesthesiology, whose responsibility . . . is to ensure that the patient will wake up at the end of the procedure;” (3) the dose of the first drug in the protocol to render the inmate unconscious is more than sufficient to
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anesthetize the inmate (the Missouri protocol calls for an amount of the first drug that is approximately 17 times the amount normally given as anesthesia for surgery; the Arkansas protocol calls for amount of the drug that is approximately 10 times the amount normally given for surgery); and (4) the risk of pain associated with the use of the second and third drugs in the protocol is too remote to be constitutionally significant. Taylor v. Crawford, 487 F.3d 1072, 1084-85 (8th Cir. 2007).
Since the Supreme Court’s 2006 decision that prisoners could in some circumstances bring a Section 1983 suit to challenge the means of lethal injection, Hill v. McDonough, 126 S.Ct. 2096 (2006), courts across the country have heard and rejected challenges to the three drug protocol widely used by the states. See, e.g., Workman v. Bredesen, No. 07-5562, 2007 WL 1311330 (6th Cir. May 7, 2007), cert. denied, 127 S. Ct. 2160 (2007)(upholding three drug protocol); Hamilton v. Jones, 472 F.3d 814 (10th Cir.), cert. denied, 127 S. Ct. 1054 (2007)(same); Emmett v. Johnson, No. 3:07CV227, 2007 WL 1597783 (E.D.Va. Jun 01, 2007)(same). Most importantly, the Eighth Circuit’s decision upholding the Missouri protocol in Taylor in the face of the same challenges raised here is controlling precedent in this Circuit. Based on these precedents, and in light of the absence of any material dispute as to the applicable Arkansas protocol, Defendants are entitled to judgment as a matter of law and their Motion for Summary Judgment should be granted.
II. FACTS Arkansas administers the death penalty by lethal injection. Ark. Code Ann. § 5-4617(a)(1). Under Arkansas law, the Arkansas Department of Correction (“ADC”) is responsible for executing felons who have been sentenced to death in the courts of this
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State. Ark. Code Ann. § 5-4-617; see also Declaration of Larry Norris. Larry Norris has been the ADC’s Director since December 1993 and is responsible for the ADC’s overall operations. (Declaration of Larry Norris) As the ADC’s Director, Arkansas law requires Mr. Norris to determine the substances and procedures used during executions. Ark. Code Ann. § 5-4-617(a)(2).
On or about June 26, 2007, and July 12, 2007, Mr. Norris consulted with Mark Dershwitz, M.D., Ph.D. to determine what changes, if any, to Arkansas’ lethal injection protocol would further reduce what Mr. Norris considered to be the already minimal possibility that a condemned inmate would experience unnecessary pain during an execution in the future. (Declaration of Larry Norris) Based on those consultations with Dr. Dershwitz, Mr. Norris’ own previous observations of lethal injection executions, and discussions that he had had over the years with other correctional professionals concerning lethal injection executions, Mr. Norris amended the ADC’s lethal injection protocol on July 16, 2007. (Declaration of Larry Norris)
The protocol requires that the Deputy Director or designee “be healthcare trained, educated, and/or experienced in matters related to the establishment and monitoring of IVs, the mixing and administration of lethal chemicals, and assessing the presence or absence of consciousness.” (Declaration of Larry Norris, Ex. A, §I, ¶1)
The protocol requires the Deputy Director or designee to have an intravenous infusion device placed in each arm, or other standard anatomical venous point of entry, of the condemned inmate and a solution of D5NS available for an infusion medium. Those person(s) engaged in this activity will be referred to as the IV Team and shall be healthcare providers who are qualified by training or credentials such as an emergency medical technician, nurse, or physician to initiate IV lines.
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(Declaration of Larry Norris, Ex. A, §II, ¶1) If a patent intravenous infusion site cannot
be established, then the protocol requires the Deputy Director or designee
to evaluate other possible infusion sites. All effort will be made to establish two (2) unrelated intravenous infusion sites. If one (1) patent infusion site is established, and a second site proves to be a futile effort, the Deputy Director, or designee, may direct the IV Team to suspend further action. In the case that no patent infusion site is established after reasonable attempts as determined by the IV Team, the Deputy Director, or designee will direct the IV Team to suspend further action and thereafter summon trained, educated, and experienced person(s) necessary to establish a primary IV line as a peripheral line or as a central venous line.
(Declaration of Larry Norris, Ex. A, §II, ¶8) The protocol makes clear that “[e]very
effort will be extended to the condemned inmate to ensure that no unnecessary pain or
suffering is inflicted by the IV procedure. Standard practice of using a local anesthetic
will be accommodated as necessary.” (Declaration of Larry Norris, Ex. A, §II (emphasis
omitted)).
The protocol employs a series of syringes to inject three chemicals in the
following doses and order:
• Syringe #1: 1.5 grams of sodium pentothal;
• Syringe #2: 1.5 grams of sodium pentothal;
• Syringe #3: 50cc of normal saline;
• Syringe #4: 50mg of pancuronium bromide;
• Syringe #5: 50mg of pancuronium bromide;
• Syringe #6: 50cc of normal saline;
• Syringe #7: 120 mEq of potassium chloride;
• Syringe #8: 120 mEq of potassium chloride.
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(Declaration of Larry Norris, Ex. A, §III & IV, ¶1) After administration of Syringe #3, “the Deputy Director, or designee, will assess and monitor the condemned inmate’s lack of consciousness by using standard procedures as taught in basic life support or CPR courses, such as checking for movement, opened eyes, eyelash reflex, and response to verbal commands and physical stimuli.” (Declaration of Larry Norris, Ex. A, §III, ¶2.f) Only after the Deputy Director or designee determines that the condemned inmate is unconscious, and at least three (3) minutes have elapsed from starting Syringe #1, will the remaining chemicals be administered. (Declaration of Larry Norris, Ex. A, §III, ¶2.f) If the Deputy Director or designee determines that the condemned inmate is still conscious after administration of Syringe #3, then the protocol requires that the contents of back up syringes be injected in the secondary or alternative IV line as follows:
• Syringe #B1: 1.5 grams of sodium pentothal; • Syringe #B2: 1.5 grams of sodium pentothal; • Syringe #B3: 50cc of normal saline. (Declaration of Larry Norris, Ex. A, §III, ¶2.f) “Once the Deputy Director, or designee, determines that the condemned inmate is unconscious, and at least three (3) minutes have elapsed from starting Syringe #B1, all remaining chemicals will be administered to the unconscious inmate in numerical sequence into the secondary or alternative IV line; Syringe #4 through Syringe #8.” (Declaration of Larry Norris, Ex. A, §III, ¶2.f) “Throughout the lethal chemical infusion process, the Deputy Director, or designee, will closely monitor the infusion site for evidence of infiltrate, vein collapse, or other challenge to the patency of the infusion site.” (Declaration of Larry Norris, Ex. A, §III, ¶2.i) If the Deputy Director or designee suspects a problem, he “will direct
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reduction of lethal chemical flow rate or redirect chemical to secondary site.” (Declaration of Larry Norris, Ex. A, § III, ¶2.i(1)) “If a singular infusion site is suspected to be compromised, chemical flow rate will be reduced. If problem persists, the: (a) administration procedure will be ceased; (b) curtain to death chamber will be closed; (c) IV Team summoned, and infusion site problem corrected.” (Declaration of Larry Norris, Ex. A, § III, ¶2.i(2)) The protocol further requires that
If all efforts to re-establish patent infusion site fail, the Deputy Director, or designee, will direct the IV Team to suspend further action and trained, educated, and experienced person(s) necessary to establish a primary IV line as a peripheral line or as a central venous line will be summoned to facilitate an IV infusion site. (Declaration of Larry Norris, Ex. A, §III, ¶2.i(3)) “When the infusion compromise is corrected, the IV Team and the summoned person(s) will be excused, the curtain reopened, and the lethal injection procedure continued.” (Declaration of Larry Norris, Ex. A, §III, ¶2.i(4)) The protocol calls for the use of a cardiac monitor to be used to display heart function. (Declaration of Larry Norris, Ex. A, §III, ¶2.h) “When all lethal chemical syringes have been administered, and a flat-line is observed for a minimum of three (3) to five (5), three-second sweeps on the cardiac monitor, the Coroner shall be summoned for purpose of pronouncing death.” (Declaration of Larry Norris, Ex. A, §III, ¶2.h) A condemned inmate who is administered a 3,000 mg dose of thiopental sodium will be rendered unconscious, and not experience pain or suffering, for the time period necessary to complete the execution. (Declaration of Mark Dershwitz, M.D., Ph.D., ¶6 ) A 3,000 mg dose of thiopental sodium would render most people unconscious within 60 seconds from the time the injection of thiopental sodium begins. (Declaration of Mark
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Dershwitz, M.D., Ph.D., ¶10) By the time all 3,000 mg of thiopental sodium solution are injected more than 99.9999999% of the population would be unconscious. (Declaration of Mark Dershwitz, M.D., Ph.D., ¶10)
There is an exceedingly small risk that a condemned inmate to whom the lethal injection protocol in Arkansas is properly administered would experience any pain or suffering associated with the administration of lethal doses of pancuronium bromide and potassium chloride. (Declaration of Mark Dershwitz, M.D., Ph.D., ¶16) The application of the protocol for the administration of lethal injection results in the condemned inmate undergoing a rapid, painless, and humane death, and furthermore the inmate will not experience any unnecessary pain or suffering. (Declaration of Mark Dershwitz, M.D., Ph.D., ¶17) As a result, Arkansas’ lethal injection protocol does not present a substantial foreseeable risk of the wanton infliction of pain and the Defendants are entitled to judgment as a matter of law.
III. STANDARD OF REVIEW Summary judgment is to be “rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact requiring the trier of fact to resolve the dispute in favor of one party or the other. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). An issue of fact is material only if the fact could affect the outcome of the case under governing law. Anderson, 477 U.S. at 248. The non-moving party must establish
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that there is a genuine issue of material fact in order to survive a motion for summary judgment. Celotex, 477 U.S. at 322; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). To establish the existence of a genuine issue, the non-moving party must produce “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 587. The mere existence of some disputed factual issues will not defeat a summary judgment motion where the disputed issues are not genuine issues of material fact. Anderson, 477 U.S. at 247-48. A disputed issue is genuine if the evidence could lead a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248.
IV. ARKANSAS’ LETHAL INJECTION PROTOCOL DOES NOT PRESENT A SUBSTANTIAL FORESEEABLE RISK OF THE WANTON INFLICTION OF
PAIN AND IS CONSTITUTIONAL IN ALL RESPECTS. Arkansas has broad discretion to determine the procedures for conducting an execution. See Taylor, 487 F.3d at 1084 (quoting McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.), cert. denied, 514 U.S. 1104 (1995). By statute, Arkansas has authorized Defendant Larry Norris to exercise this wide discretion. Ark. Code Ann. § 5-4-617(a)(2). On July 16, 2007, Mr. Norris exercised it and adopted the lethal injection protocol that is currently in place in this State. “The whole point of [Arkansas’] protocol is to avoid the needless infliction of pain, not to cause it.” Taylor, 487 F3d at 1085 (quoting Workman v. Bredesen, 486 F.3d 896, 907 (6th Cir. 2007). In Taylor v. Crawford, a condemned Missouri inmate alleged that that State’s lethal injection protocol created a significant risk that he would experience the wanton infliction of pain because if the first chemical, thiopental, did not sufficiently anesthetize him, he would feel pain caused by the third chemical, potassium chloride, but would not
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be able to indicate that he was experiencing pain because of the paralyzing effects of the second chemical, pancuronium bromide. Id., 487 F.3d 1072, 1074 (8th Cir. 2007). The Plaintiffs make virtually identical claims in this lawsuit.
After an evidentiary hearing, the district court ruled that Missouri’s protocol, which at that time had not been reduced to writing, was unconstitutional. Id. at 1078. Pursuant to an order from that court, Missouri submitted a written protocol that is very much like the one that is in effect in Arkansas today. The court ruled that that protocol was unconstitutional because, among other things, it did not require a physician with training in anesthesia to mix the chemicals and did not require the monitoring of anesthetic depth. Id. at 1078. Missouri sought reconsideration, which was denied, and appealed. Id.
On June 4, 2007, the United States Court of Appeals for the Eighth Circuit reversed and held that Missouri’s written lethal injection protocol did not violate the Eighth Amendment. Id. at 1085. The court explained that a State’s lethal injection procedure does not violate that Amendment’s prohibition against cruel and unusual punishment unless it involves “a substantial foreseeable risk of the wanton infliction of pain.” Id. at 1082. The risk of an accident is not a factor in that determination. Id., 487 F.3d at 1080. Indeed, the court left no doubt that the “risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.” Id. (citation and internal quotation marks omitted). The Eighth Circuit further emphasized that the courts must focus on the procedure as written and ask whether it inherently involves a substantial risk of the wanton infliction of pain. Id. “The Constitution does not require the use of execution procedures that may be medically
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optimal in clinical contexts.” Id. at 1085 (citing Hamilton v. Jones, 472 F.3d 814, 816 (10th Cir.), cert. denied, 127 S.Ct. 1054 (Jan. 8, 2007)). What could be done to update or improve the protocol is not the appropriate inquiry. Id. (citing Abdur’ Rahman v. Bredesen, 181 S.W.3d 292, 309 (Tenn. 2005), cert. denied, 126 S. Ct. 2288 (2006). “Where the ‘procedures are reasonably calculated to ensure a swift, painless death,’ they are ‘immune from constitutional attack.’” Id. (quoting McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.), cert. denied, 514 U.S. 1104 (1995).
The Plaintiffs’ allegations that Arkansas’ lethal injection protocol creates an unnecessary risk that they will experience the wanton infliction of pain are unfounded for several reasons. First, the protocol requires the individuals who establish the IV lines to be “healthcare providers who are qualified by training or credentials such as an emergency medical technician, nurse, or physician to initiate IV lines.” (Declaration of Larry Norris, Ex. A, §II, ¶1) Moreover, the Deputy Director or designee “shall be healthcare trained, educated, and/or experienced in matters related to the establishment and monitoring of IVs[.]” (Declaration of Larry Norris, Ex. A, §I, ¶1) Thus, Arkansas’ protocol, like Missouri’s, requires that the IV lines be started by qualified individuals.
Second, Arkansas’ protocol requires the Deputy Director or designee to “closely monitor the infusion site for evidence of infiltrate, vein collapse, or other challenge to the patency of the infusion site” and to take appropriate action if a problem is suspected. (Declaration of Larry Norris, Ex. A, §III, ¶2.i) As stated in the preceding paragraph, this individual must be “healthcare trained, educated, and/or experienced in matters related to the establishment and monitoring of IVs[.]” (Declaration of Larry Norris, Ex. A, §I, ¶1)
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Arkansas’ protocol, like Missouri’s, requires that the IV lines be monitored by a qualified individual.
Third, like Missouri’s protocol, Arkansas’ ensures that condemned inmates are unconscious before the pancuronium bromide and potassium chloride are administered. Arkansas’ protocol calls for the injection of 3,000 mg of thiopental sodium before the other two chemicals are injected. This dose would render most people unconscious within 60 seconds from the time the injection of thiopental sodium began. By the time all 3,000 mg of thiopental sodium solution are injected more than 99.9999999% of the population would be unconscious. Even though a condemned inmate who is administered a 3,000 mg dose of thiopental sodium will be rendered unconscious, and not experience pain or suffering, for the time period necessary to complete the execution, the protocol contains the additional safeguard of requiring the Deputy Director or designee to assess and monitor the inmate’s lack of consciousness after administration of Syringe #3. The protocol requires that this person be healthcare trained, educated, and/or experienced in assessing the presence or absence of consciousness. The pancuronium bromide and potassium chloride will be injected only if the Deputy Director of designee determines that the condemned inmate is unconscious, and at least three minutes have elapsed from the beginning of the administration of Syringe #1.
If the Deputy Director or designee determines that the inmate is still conscious after the first three syringes have been administered, then the protocol requires that a back-up dose of sodium pentothal and an additional saline flush be administered. The remaining chemicals may not be injected until after the Deputy Director or designee determines that the condemned inmate is unconscious and at least three minutes have
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elapsed from the start of the administration of the back-up dose of sodium pentothal. Consequently, the risk that a condemned inmate to whom Arkansas’ lethal injection protocol is properly administered would experience any pain or suffering associated with the administration of lethal doses of pancuronium bromide and potassium chloride is exceedingly small. The application of the protocol for the administration of lethal injection results in the condemned inmate undergoing a rapid, painless, and humane death, and furthermore the inmate will not experience any unnecessary pain or suffering.
As written, Arkansas’ lethal injection protocol is substantively similar in all material respects to the Missouri protocol that the Eighth Circuit upheld in Taylor v. Crawford, 487 F. 3d at 1080 (explaining that if a lethal injection “protocol as written involves no inherent substantial risk of the wanton infliction of pain, any risk that the procedure will not work as designated in the protocol is merely a risk of accident, which is insignificant in our constitutional analysis.”) Both protocols call for injection of the same three chemicals in the same sequence. See id. at 1074. Both protocols require qualified personnel to start, maintain, and monitor the IV lines. See id. at 1083. Both protocols require qualified personnel to determine that the condemned inmate is unconscious before injection of the pancuronium bromide and potassium chloride. See id. at 1084. Both protocols demand that three minutes elapse from the beginning of the sodium pentothal’s administration before the pancuronium bromide is administered, and both protocols provide for back-up doses of sodium pentothal. See id. at 1084. Like Missouri’s protocol, Arkansas’ protocol does not present a substantial foreseeable risk of the wanton infliction of pain. In fact, Arkansas’ protocol, like Missouri’s, ensures that condemned inmates undergo rapid, painless, and humane deaths without experiencing
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any unnecessary pain or suffering. Arkansas’ lethal injection protocol completely

satisfies the Constitution, so the Court should grant summary judgment in favor of the

Defendants.

Respectfully submitted,

DUSTIN

McDANIEL Attorney General

BY: Ark.
323 Little (501)

/s/ C. Joseph Cordi, Jr. Bar No. 91225
Assistant Attorney General Center St., Suite 200 Rock, AR 72201 682-1317

ATTORNE

YS FOR DEFENDANTS

CERTIFICATE OF SERVICE

I, C. Joseph Cordi, Jr., certify that on July 17, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to:
Julie C. Brain Federal Public Defenders Office-LR The Victory Building 1401 West Capitol Avenue Suite 490 Little Rock, AR 72201

E. Alvin Schay Attorney at Law 902 West Second Street Little Rock, 72201

Dale E. Adams Montgomery, Adams & Wyatt, PLC 221 West Second Street Suite 408 Little Rock, AR 72201

Jeffrey M. Rosenzweig Attorney at Law 300 Spring Building

14

Case 5:06-cv-00110-SWW Document 75 Filed 07/17/07 Page 15 of 15 Suite 310 Little Rock, AR 72201-2421
I further certify that on July 17, 2007, I mailed a copy of the foregoing by the United States Postal Service, postage prepaid, to the following: Deborah Ruth Sallings Cauley, Bowman, Carney & Williams, LLP Post Office Box 25438 Little Rock, AR 72221-5438
/s/ C. Joseph Cordi, Jr.
15

 
 Case 5:06-cv-00110-SWW Document 65 Filed 07/09/07 Page 1 of 13

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________

No. 06-2748 ________________

*

Terrick Terrell Nooner,

*

*

Appellee,

*

*

Don William Davis,

*

*

Intervenor-Appellee

*

*

v.

*

*

Larry Norris, in his official capacity *

as Director, Arkansas Departm ent

*

of Correction; Gaylon Lay, in his

*

official capacity as Warden,

*

Arkansas Department of

*

Correction, Cummins Unit; Wendy *

Kelly, in her official capacity as

*

Deputy Director of Health and

*

Correctional Programs, Arkansas

*

Department of Correction; John

*

Byus, in his of ficial capacity as

*

Administrator, Correctional

*

Medical Services, Arkansas

*

Department of Correction; DOES,

*

1-50, unknown executioners, in

*

their official capacities as

*

employees and/or agents of the

*

Arkansas Department of

*

Correction,

*

*

Appellants.

*

Appeal from the United States District Court for the Eastern District of Arkansas.

Case 5:06-cv-00110-SWW Document 65 Filed 07/09/07 Page 2 of 13
________________
Submitted: March 15, 2007 Filed: July 9, 2007
________________
Before COLLOTON, HANSEN, and GRUENDER, Circuit Judges. ________________
HANSEN, Circuit Judge.
The district court granted Don WilliamDavis a preliminary injunction staying his execution to perm it him to litigate the constitutionality of Arkansas' s lethal injection protocol in a suit brought pursuant o 42 U.S.C. § 1983. In this interlocutory appeal, see 28 U.S.C. § 1292(a)(1), theAppellants (collectively, "the State") contend that the district court abused its discretion in granting the preliminary injunction.1 We agree, and accordingly we reverse the judgm ent of the d istrict court, dissolve the preliminary injunction it imposed, and vacate the stay of execution it entered.
I.
In 1993, the Supreme Court of Arkansas affirmed Mr. Davis's conviction for capital murder and his sentence of deat h by lethal injection, Davis v. State , 863 S.W.2d 259 (Ark. 1993), cert. denied, 511 U.S. 1026 (1994), and in 2001, affirmed the denial of his petition for postconviction relief, Davis v. State, 44 S.W.3d 726 (Ark. 2001). In 2005, we affirmed the denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, seeDavis v. Norris, 423 F.3d 868 (8th Cir. 2005), and the Supreme Court rejected his untimely petition for certiorari on April 17, 2006.
1Terrick Nooner is nam ed as an appellee in the caption of this interlocutory appeal, but the preliminary injunction and the stay entered by the district court affect only Mr. Davis, and accordingly, our opinion does not address Mr. Nooner.
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On May 4, 2006, Mr. Davis filed a m otion to intervene as a party plaintiff in this § 1983 action, which Terrick Nooner originally filed on May 1, 2006. The lawsuit challenges Arkansas's three-chemical lethal injection protocol, asserting that the State's protocol creates a significant risk of inflicting severe pain in the administration of the death sentence, and that the State's use of this protocol demonstrates deliberate indiff erence to the plaintiffs' serious medical needs. Specifically, the complaint alleges that the State's protocol presents a risk of error in administering the drugs that could result in inadequate anesthetization, creating a substantial risk that the first in jection (two grams of sodium thiopental) will fail to render him unconscious, leaving himparalyzed by the second chemical (pancuronium bromide), and suffering severe pain by the subsequent administration of the third chemical (potassium chloride). Additiona lly, the com plaint references four prior executions alleged to have been "botched."
The district court granted Mr. Davi s's motion to intervene on May 26, 2006. Before that ruling was filed, however, the governor had set an execution date of July 5, 2006, for Mr. Davis. Mr. Davis then sought a preliminary injunction to stay his impending execution by means of the current protocol. The State resisted, arguing that the claim was not likely to succeed on the merits and that the public interest and principles of equity, including unjustified delay in bringni g the claim, weighed heavily against the grant of an injunction. The di strict court rejected these arguments and granted the preliminary injunction on June 26, 2006, staying Mr. Davis's execution. The State filed this appeal.2
2On June 30, 2006, the State filed its notice of appeal and moved this court to summarily vacate the district court's order granting a preliminary injunction staying the execution. Before we could rule on the matter, the State also applied to the Supreme Court to vacate the stay before the originally set execution date, but the Court declined to vacate the stay in an order dated July5, 2006. On July 13, 2006, we entered an administrative order denying the motion to vacate pending before this court, and this appeal proceeded.
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II.
"We generally review a district court's decision to stay execution for an abuse of discretion." Roberts v. Norris, 415 F.3d 816, 819 (8th Cri. 2005) (citing Bowersox v. Williams, 517 U.S. 345, 346 (1996)). "A district court abuses its discretion when it applies an incorrect legalstandard." Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir. 2003). After carefully considering the record and the standards used by the district court, we conclude that the district co urt abused its discretion in granting the preliminary injunction and stay of execution. See Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 967 (8th Cir. 2005) ("An abuse of discretion occurs when the district court bases its decision on an erroneous application of the law or a clearly erroneous finding of fact.").
A stay of execution is anequitable remedy, and an inmate challenging a state's lethal injection protocol through a § 1983 action is not entitled to a stay of execution as a matter of course. Hill v. McDonough, 126 S. Ct. 2096, 2104 (2006); Nelson v. Campbell, 541 U.S. 637, 649 (2004). The Supreme Court reemphasized in Hill that "inmates seeking time to challenge the ma nner in which the State plans to execute them must satisfy all of the requirem ents for a stay, including a showing of a significant possibility of success on themerits." 126 S. Ct. at 2104; seealso Barefoot v. Estelle, 463 U.S. 880, 895 (1983) (requiring a "significant possibility" of success and "a likelihood that irreparable harm will result" absent a stay). The Court also noted in Hill that "equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts." 126 S. Ct. at 2104. Fina lly, in this c ontext, a court "must also apply 'a strong equita ble 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.'" Id. (quoting Nelson, 541 U.S. at 650). In other words, "before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extento which the inmate has delayed unnecessarily
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in bringing the claim ," which counsels ag ainst the entry of an equitable rem edy. Nelson, 541 U.S. at 649-50.
The district court rejected the State'sassertion of unnecessary delay, finding no delay at all and therefore not applying the presum ption against the grant of a stay, which arises when the claim could have been brought in time to consider the merits without requiring a stay. The district court found it was sufficient that Mr. Davis had moved to join this suit "before the State set his execution date and sh ortly after he exhausted all means for cha llenging his conviction." (Appe llants' Add. at 5.) We conclude that this is not the correct standard for determining delay in this context.
Once a state inmate's sentence of death has become final on direct review in the state's courts,3 there is no im pediment to filing a § 1983 action challenging the constitutionality of a state's lethal injection protocol as long as lethal injection is the established method of execution, the protocol is known, and no state administrative remedies are available. See Gomez v. U. S. Dist. Court for the N. Dist. of Calif., 503 U.S. 653, 653-54 (1992) (criticizing a n inmate for bringing a § 1983 m ethod of execution claim (challenging lethal gas) shortly before his execution date when the claim was not raised earlier but "could have been brought more than a decade ago"); see also Jones v. Allen , 485 F.3d 635, 640 (11th Cir.) (finding that there was no reason for waiting until 2006 to challenge lethal injection where the inm ate's conviction became final on direct review in 1988, and the legislature adopted lethal injection in 2002 while the inmate's habeas petition was pending), cert. denied, 127 S. Ct. 2160 (2007); Cooey v. Strickland , 479 F.3d 412, 421-22 (6th Cir. 2007) (finding that because a § 1983 challenge to a lethal injection protocol must accrue at
3We note that direct review includes cer tiorari review by the United States Supreme Court. See Lawrence v. Florida, 127 S. Ct. 1079, 1083 (2007) (explaining that "'direct review' has long included review by this Court"); Barefoot, 463 U.S. at 887 (the process of direct review includesthe right to petition the Supreme Court for a writ of certiorari when a federal question is involved).
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some point before the time when the lethal injection protocol is actually imposed, "it stands to reason that the next most appropriate accrual date [is] upon conclusion of direct review in the state court or the expriation of time for seeking such review," and noting that the accrual date must be adjusted if lethal injection was not adopted until some later date); Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006) (noting the Fifth Circuit holds that a method of execution challenge "'may be filed any time after the plaintiff's conviction has become final on direct review'") (quoting Neville v. Johnson, 440 F.3d 221 (5th C ir. 2006)). But see Nelson, 541 U.S. at 650 (noting that other limitations may apply to an inmate' s ability to bring a § 1983 claim , such as limitations imposed by the Prison Litigati on Reform Act of 1995, "requir[ing] that inmates exhaust available state adm inistrative remedies before bringing a § 1983 action challenging the conditions of their confinement"). For purposes of this case, the State acknowledged during oral argument that an Arkansas inmate can challenge the lethal injection protocol immediately after direct review.
"[A] death sentence cannot begin to be craried out by the State while substantial legal issues [concerning the conviction or sentence] remain outstanding." Barefoot, 463 U.S. at 888. Upon completion of collateral review, however, the State is free to set an execution date, and there is a strong likelihood that any challenge to the lethal injection protocol brought thereafter will be interrupted by the establishm ent of an execution date. See Calderon v. Thom pson, 523 U.S. 538, 556 (1998) ("A State' s interests in finality are compelling when a federal court of appeals issues a mandate denying federal habeas relief."); Jones, 485 F.3d at 639-40 & n.2 (noting that "[a]s a matter of common sense, completion of collateral review eliminates the last possible obstacle to execution," making it likely that an execution date will "be set promptly upon completion of collateral review"). At that point, there can be no doubt that execution is imminent, and this imminency weighs against the grant of a stay where the inmate has delayed unjustif iably in bringing a challenge to the lethal injection protocol. See Cooey, 479 F.3d at 419 (stating that waiting until "the point of imminency plus exhaustion of federal collateral remedies adds a significant period of
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delay . . . and disrupts the fni al yet vital balance betweenstate and federal relations"). The Supreme Court has clearly set forth "a strong equitable presumption against the grant of a stay where a clai m could have been brought at such a tim e as to allow consideration of the merits without requiring entry of a stay." Nelson, 541 U.S. at 650; see Jones, 485 F.3d at 639-40 n.2 ("Waiting tofile suit until the Supreme Court has denied certiorari review of an inmate's federal habeas petition . . . is simply too late to avoid the inevitable need for a stay of execution.").
The proper inquiry, therefore, "is whether [Mr. Davis] could have brought his claim 'at such a time as to allow consideration of the merits without requiring entry of a stay.'" Jones, 485 F.3d at 641 (quoting Nelson , 541 U.S. at 650.) The district court did not give proper consideration to this inquiry. Our review of the record reveals that direct review of Mr. Davi s's conviction and sentence was completed in 1994, well over a decade before he challenged the lethal injection protocol. Lethal injection has been the primary method of execution in Arkansas since 1983, and the written protocol document challenged here has been in existence since 1996, with no allegation that the protocol has been altered at any time. See White v. Johnson, 429 F.3d 572, 574 (5th C ir. 2005) (c oncluding that a § 1983 c hallenge to the lethal injection procedure brought after waiting six years on death row was dilatory when the same procedure had been in place the entire time). The complaint refers to four prior allegedly "botched" executions to demonstrate the State's knowledge of failures in the protocol, but three of these had already occurred before the conclusion of Mr. Davis's direct review in 1994. The otheroccurred in May of 2000, approximately six years before Mr. Davis attempted to bring this claim. Mr. Davis at no time attempted to raise this claim during the tim e his state postconviction or federal habeas proceedings were pending, and he offe rs no justification for waiting until 2006 to challenge the protocol. See Neville, 440 F.3d at 223 (finding it im proper to grant equitable relief where no excuse was offered for the delay). Mr. Davis's delay gives rise to the equitable presum ption against a stay in this case, and he has offered no basis for overcomi ng that strong presum ption. See Gomez, 503 U.S. at 653-54
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(vacating a stay of execution due to "abus ive delay" for which there was "no good reason," and refusing to consider a challengeto a method of execution which, at least according to the dissent, had considerable merit); Smith, 440 F.3d at 263 (affirming the dismissal of a § 1983 complaint challenging lethal injection and denying a motion for stay where the inmate failed to provide a reasonable justification for not filing the claim until nine years after his direct appeal had been final); White, 429 F.3d at 574 (not deciding whether inmate had stated a claim because "'even if he does, he is not entitled to the equitable relief he seeks' due to his dilatory filing" (quoting Harris v. Johnson, 376 F.3d 414, 417 (5th Cir. 2004)).
Mr. Davis argues that his case is controlled by this court's recent opinion in Taylor v. Crawford, 445 F.3d 1095 (8th Cir. 2006), because Taylor was allowed to proceed with the merits of his claim where he brought suit after completing habeas review and before an execution date had been set. Mr.Davis, however, overlooks the fact that the issue of unjustified delay by the inmate was not raised or litigated in Taylor. While we noted in Taylor that the inmate had filed suit over six m onths before the death warrant was issued, id. at 1096-97, this reference served only to emphasize the district court's failure to move the case to a hearing. A prompt hearing on the merits in that case could have resolved the issue before an execution date was set, eliminating the need for a stay. Anydelay on Mr. Taylor's part was never raised. Consequently, the Taylor opinion does not inform our decision as to Mr. Davis' s unjustified delay in bringing his claim.
Nor do we believe that the Supreme Court's recent decision in Panetti v. Quarterman, No. 06-6407, 2007 WL 1836653 (June 28, 2007), is applicable to Mr. Davis's case. Panetti deals with mental competence to be executed, a condition of the mind which may not manifest itself until solate a time that a stay becomes necessary in order to evaluate properlythe asserted mental deficiency. That cannot be said about an execution protocol which, as we ha ve pointed out, has been long known and unchanged in its imp lementation for years, thereby permitting an evaluation of its
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constitutionality without the necessity of the issuance, in effect, of an eleventh hour stay.
III. Because the district court failed to applythe correct legal standard, we reverse the district court's grant of a prelimin ary injunction, and we vacate the stay of execution it issued in this case.
______________________________
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Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

July

09, 2007

Ms. Kelly Hill ATTORNEY GENERAL'S OFFICE 323 Center Street 200 Catlett-Prien Building Little Rock, AR 72201-2610

RE: 06-2748 Terrick T. Nooner v. Larry Norris, et al

Dear Counsel:

The court has issued an opinion in this case. Judgment has been entered in accordance with the opinion. The opinion will be released to the public at 10:00a.m. today. Please hold the opinion in confidence until that time.

Please review Federal Rules of Appellate Procedure and the Eighth Circuit Rules on postsubmission procedure to ensure that any contemplated filing is timely and in compliance with the rules. Note particularly that petitions for rehearing and petitions for rehearing en banc must be received in the clerk's office within 14 days of the date of the entry of judgment. Counsel-filed petitions must be filed electronically in CM/ECF. Paper copies are not required. No grace period for mailing is allowed, and the date of the postmark is irrelevant for pro-se-filed petitons. Any petition for rehearing or petition for rehearing en banc which is not received within the 14 day period for filing permitted by FRAP 40 may be denied as untimely.

Clerk

Michael E. Gans of Court

paw

Enclosure(s)

cc: Ms. Julie Brain Mr. Don William Davis Mr. Jim McCormack Mr. Terrick Terrell Nooner Ms. Deborah Ruth Sallings Mr. E. Alvin Schay Mr. Joseph Vincent Svoboda

District Court/Agency Case Number(s): 5:06-cv-00110-SWW

Case 5:06-cv-00110-SWW Document 65 Filed 07/09/07 Page 11 of 13

8cc-cmecf-nda@ck8.uscourts. gov
07/09/2007 09:43 AM

To ared_appeals@ared.uscourts.gov cc bcc Subject Activity in Case 06-2748 Terrick T. Nooner v. Larry Norris, et
al "Signed Opinion Filed"

***NOTE TO PUBLIC ACCESS USERS*** You may view the filed documents once without charge. To avoid later charges, download a copy of each document during this first viewing.

Notice of Docket Activity

The following transaction was filed on 07/09/2007

Case Name:

Terrick T. Nooner v. Larry Norris, et al

Case Number:

06-2748

Document(s):

Document(s)

Docket Text: OPINION FILED - THE COURT: STEVEN M. COLLOTON ; DAVID R. HANSEN ; RAYMOND W. GRUENDER. David R. Hansen, Authoring Judge (PUBLISHED) [3327390] [06-2748]
The following document(s) are associated with this transaction: Document Description:Signed Opinion Filed Original Filename:062748p.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=07/09/2007] [FileNumber=3327390-0] [6a950a86593c6ad3ce3e67ae3b84f7a4c11cb5569c60fd2e5c0a603600957b2c544773e1b4dc31cf ea73a73bcc11d179e956c89afc2846ba0cbe185863fa055f]] Document Description:form(s) sent Original Filename: /opt/ACECF/live/forms/pwakefield_062748_3327390_LettersToPublishing_284.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=07/09/2007] [FileNumber=3327390-1] [9c0845d5c8330239cb5ceb93ad6b019c3fe9d62457d47c342a64557bf22ab29b7a5c9f7af8cd3d6b 364a76078620e8829cef860a2663815dfc929f0bf75d6708]] Document Description:form(s) sent Original Filename: /opt/ACECF/live/forms/pwakefield_062748_3327390_CounselOpinionLetters_285.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=07/09/2007] [FileNumber=3327390-2] [5c0a5c56088567d67e798fcd0d1804fd98edd55835efc0a01fd1d9c309021769f6cf6dd725334013 6e036996a07fd4008e991d22bfc7ac5ca9a794b9c5062bf9]]

Case 5:06-cv-00110-SWW Document 65 Filed 07/09/07 Page 12 of 13
06-2748 Notice will be electronically mailed to:
Brain, Julie: julie_brain@fd.org, juliebrain1@yahoo.com, cindy_westlake@fd.org, maggie_hill@fd.org, jenniffer_horan@fd.org, scott_braden@fd.org, josh_lee@fd.org, leejoshr@yahoo.com, kim_driggers@fd.org Hill, Kelly: kelly.hill@arkansasag.gov, janice.meharg@arkansasag.gov, theresa.griffin@arkansasag.gov McCormack, Jim: ared_appeals@ared.uscourts.gov Sallings, Deborah Ruth: dsallings@cauleybowman.com, dengelby@cauleybowman.com Schay, E. Alvin: ASCHAY@msn.com Svoboda, Joseph Vincent: Joe.Svoboda@arkansasag.gov, Janice.Meharg@arkansasag.gov, Theresa.Griffin@arkansasag.gov Lois Law: FED08@loislaw.com MO Lawyers Weekly: smaniscalco@mo.lawyersweekly.com West Publishing: us08@westdcs.west.thomson.com
06-2748 Notice will be mailed to:
Brain, Julie FEDERAL PUBLIC DEFENDER'S OFFICE 1401 W. Capitol Suite 490 Little Rock, AR 72201-3325
Davis, Don William ARKANSAS DEPARTMENT OF CORRECTION Maximum Security Unit 2501 State Farm Road Tucker, AR 72168-8713
Hill, Kelly ATTORNEY GENERAL'S OFFICE 323 Center Street 200 Catlett-Prien Building Little Rock, AR 72201-2610
McCormack, Jim U.S. DISTRICT COURT Eastern District of Arkansas 600 W. Capitol Avenue Room 402 Little Rock, AR 72201-0000

Case 5:06-cv-00110-SWW Document 65 Filed 07/09/07 Page 13 of 13
Nooner, Terrick Terrell ARKANSAS DEPARTMENT OF CORRECTION Varner SuperMax Unit P.O. Box 400 Grady, AR 71644-0400
Sallings, Deborah Ruth CAULEY & BOWMAN P.O. Box 25438 Little Rock, AR 72212-0000
Schay, E. Alvin 14 Skyway Drive Little Rock, AR 72207
Svoboda, Joseph Vincent ATTORNEY GENERAL'S OFFICE 323 Center Street 1100 Catlett-Prien Building Little Rock, AR 72201-0000
The following information is for the use of court personnel:
DOCKET ENTRY ID: 3327390 RELIEF(S) DOCKETED:
for publication DOCKET PART(S) ADDED: 3537093, 3537094, 3537095

 
 Case 5:06-cv-00110-SWW Document 80 Filed 07/30/07 Page 1 of 30

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
TERRICK TERRELL NOONER, et al.,

Plaintiffs,

v.

Civil Action No. 5:06-cv-00110-SWW

LARRY NORRIS, et al.,

Defendants.

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’MOTION FOR SUMMARY JUDGMENT Come now Plaintiffs, Terrick Terrell Nooner, Don William Davis and Jack Harold Jones, by and through counsel, and respectfully submit their Response in Opposition to Defendants’ Motion for Summary Judgment. I. INTRODUCTION “[S]ummary judgments should be cautiously invoked so that no person will be improperly deprived a trial of disputed factual issues.” Arkansas Right to Life v. Butler, 983 F. Supp. 1209, 1215 (W.D. Ark. 1997), aff’d 146 F.3d 558 (8th Cir.1998). It is “an extreme remedy which should be sparingly employed.” Giordano v. Lee, 434 F.2d 1227, 1230 (8th Cir. 1970). “Summary judgment is a lethal weapon, and courts must . . . beware of overkill in its use.” Brunswick Corp. v. Vineberg, 370 F.2d 605, 612 (5th Cir. 1967). A “series of Supreme Court decisions” indicate that “summary judgment may not be appropriate in complicated and important litigation.” 10B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY K. KANE, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2732 (3d. ed. 2007). See, e.g., Kennedy v. Silas Mason Co., 334 U.S. 249, 256 (1948) (warning against using

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summary judgment “for deciding issues of farflung import”). In particular, [c]ases premised on alleged violations ofthe constitutional or civil rights ofplaintiffs frequently are unsuitable for sum mary judgment. As is true with other cases involving important public issues, courts may refuse to grant summary judgment in these actions because it is felt that a fuller record is necessary in order to be able to decide properly the issues involved. Further,the very nature of the claims involved often presents factual issues that require summary judgment to be denied.
10B WRIGHT & MILLER, supra, at § 2732.2. See, e.g., Arkansas Right to Life, 983 F. Supp. at 1215 (denying summary judgment in part because, “in cases premised on alleged violations of a person’s constitutional rights, summary judgment may be inappropriate”).
Whether or not a moving party meets its summary judgment burden, a court may always deny summary judgment in its discretion. See McClain v. Meier, 612 F.2d 349, 356 (8th Cir. 1979) (“[A] district court in passing on a Rule 56 motion performs what amounts to what may be called a negative discretionary function. The court has no discretion to Grant a motion for summary judgment, but even if the court is convinced that the moving party is entitled to such a judgment the exercise of sound judicial discretion may dictate that the motion should be Denied, and the case fully developed.”); see generally Jack H. Friedenthal & Joshua E. Gardner, Judicial Discretion to Deny Summary Judgment in the Era of Managerial Judging, 31 HOFSTRA L. REV. 91, 104 (2002) (“The majority of federal courts have held that judges have discretion to deny a motion for summary judgment, even if the parties' submissions would justify granting the motion. The First, Fourth, Fifth, Eighth, and Federal Circuits have each adopted this view.”)
The general principles outlined above counsel denial of Defendants’ Motion for Summary Judgment in this case. More specifically, the Defendants’ Motion should be denied on two independent grounds. First, it is premature in that it is based upon facts that only came into existence 11 days ago and Plaintiffs have had no opportunity for discovery. Second, even on the
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record as it currently stands, there are numerous genuine issues of material fact which preclude the entry of summary judgment. II. PROCEDURAL HISTORY
Plaintiffs are Arkansas prisoners under sentence of death. On May 1, 2006, Plaintiff Terrick Terrell Nooner, by and through undersigned counsel, filed suit under 28 U.S.C. § 1983, complaining that Defendants’ proposed means of executing him constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments because it creates a substantial and unnecessary risk that Mr. Nooner will be fully conscious and suffer torturous pain for the duration of the execution process. [Doc. 1]. Mr. Nooner’s Complaint seeks a declaratory judgment that the Defendants’ lethal injection protocol is unconstitutional and also seeks to permanently enjoin them from carrying out their unconstitutional protocol. Id. at ¶¶ 57–61.
On May 4, 2006, Plaintiff Don William Davis moved to intervene in this action. This Court granted his Motion on May 26, 2006. Defendants moved to dismiss the action, and that Motion was denied by this Court on June 19, 2006. [Doc. 24.] Meanwhile, Mr. Davis sought, (Appl. Prelim. Inj.) [Doc. 21], and then on June 26 was granted, a preliminary injunction staying his imminent execution, (Order) [Doc. 29]. In its Order granting the stay of Mr. Davis’s execution, this Court held that the evidence and arguments presented by Mr. Davis satisfied the requisites for a stay. Specifically, this Court found (1) that there was a threat of irreparable harm to Mr. Davis, (2) that the balance of the equities favored Mr. Davis, (3) that there was a probability that the Plaintiffs would succeed on the merits, and (4) that the public interest would be served by staying Mr. Davis’s execution to permit deliberate litigation of his claims. Id. at
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5–7. In addition, this Court held (5) that the State’s proffered defense of inexcusable delay lacked merit. Id.
Defendants immediately moved to vacate the stay in the Eighth Circuit Court of Appeals. This was denied on July 13, 2006. See Nooner v. Norris, No. 06-2748 (8th Cir. July 13, 2006) (unpublished order). On July 20, 2006, Defendants informed the Eighth Circuit that they intended to take an appeal from this Court’s stay of execution notwithstanding the Eighth Circuit’s denial of their Motion to Vacate. Defendants filed their opening brief in the Eighth Circuit on September 25, 2006; Mr. Davis responded on January 2, 2007; and Defendants replied on January 17, 2007. Oral argument was held before the Eighth Circuit on March 15, 2007.
On July 9, 2007, a panel of the Eighth Circuit reversed Mr. Davis’s stay of execution. (Op. at 9) [Doc. 65]. Notably, the Court of Appeals did not question this Court’s holding that Mr. Davis had satisfied the ordinary requisites for a preliminary injunction and stay, i.e., irreparable harm, favorable equities, likelihood of success, and service of the public interest. Rather, the Eighth Circuit held—based upon the demonstrably flawed assumptions that Defendants’ 1996 written lethal injection protocol was still in effect, and that Mr. Davis had long had notice of that protocol—only that the state’s “unreasonable delay” defense to a stay of execution was valid as against Mr. Davis. While this case pended in the Eighth Circuit, the third Plaintiff, Jack Jones was granted leave to intervene. [Doc. 42.]
The day after this case returned from the Eighth Circuit to this Court, on July 10, 2007, Plaintiffs moved for expedited discovery so that this case could be resolved on the merits prior to Plaintiffs’ execution. Plaintiffs served the Defendants with requests for production and with interrogatories on July 12 and July 13, respectively. Defendants purported to “agree that this
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case should be expeditiously resolved,” [Doc. 65], but nonetheless opposed Plaintiffs’ request for expedited discovery. [Doc. 76.] On July 17, 2007, Defendants moved for summary judgment [Doc. 73], proffering “Attachment C - Lethal Injection Procedure” [Doc. 74, Ex.2] as the basis for their Motion. “Attachment C - Lethal Injection Procedure” is a new written lethal injection protocol that Defendants created on the day prior to filing for summary judgment. Notwithstanding the obvious exigencies in this case, Defendants have to date not produced any documents or answered any interrogatories in response to Plaintiffs’ discovery requests, which Defendants have now had for eighteen days. III. ARGUMENT
A. SUMMARY JUDGMENT SHOULD BE DENIED AS PREMATURE UNDER FED. R. CIV. P. 56(F) BECAUSE PLAINTIFFS REQUIRE ADDITIONAL TIME FOR INVESTIGATION AND RESEARCH INTO DEFENDANTS’ BRAND NEW WRITTEN LETHAL INJECTION PROCEDURE.
Defendants cannot be permitted simultaneously to change suddenly many material facts involved in this complex litigation and to end the case summarily. Summary judgment should not be granted where it may be the result of unfair surprise. See Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005); Clorox v. Proctor & Gamble, 228 F.3d 24, 31 (1st Cir. 2000); Macklin v. Butler, 553 F.2d 525, 529 (7th Cir. 1977). In considering a motion for summary judgment, courts have a duty to “ensure . . . that neither side in a dispute [has] unfairly surprise[d] the other with evidence that the other has not had time to consider.” Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir. 1993).
Granting summary judgment on the basis of evidence created and disclosed by the Defendants simultaneously with their Motion for Summary Judgment would constitute unfair
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surprise. The Defendants surprise attack in this regard represents a valid reason justifying any failure of proof under Rule 56(f). To prevent the Defendants from gaining an unfair advantage by moving for summary judgment and springing a rewritten protocol upon Plaintiffs at the same time, Plaintiffs must be permitted more time to conduct investigation and research in light of “Attachment C - Lethal Injection Procedure.” Cf. Walters v. City of Ocean Springs, 626 F.2d 1317, 1321 (5th Cir. 1980) (“Rule 56(f) may apply . . . where the opposing party has not been able to locate a witness, or having located him has been unable to secure an affidavit from him and has not had time to take his deposition . . . .”)
As attested in the attached Affidavit of Julie Brain, Ex. 1, Plaintiffs need to conduct further research and investigation into “Attachment C - Lethal Injection Procedure,” including consulting with multiple additional experts. Plaintiffs believe that such research and investigation will lead to additional genuine issues of material fact with respect to whether Defendants’ execution procedure engenders unnecessary risks of inflicting pain and suffering.
While Plaintiffs firmly believe that further investigation and research would reveal the forgoing, they simply have not had time to obtain admissible evidence in this regard because they did not have access to “Attachment C - Lethal Injection Procedure” until eleven days ago. In sum, the Defendants’ surprise creation and disclosure of a newly rewritten lethal injection protocol excuses any failure of proof that this Court may discern under Rule 56(f) and precludes the entry of summary judgment.
B. SUMMARY JUDGMENT SHOULD BE DENIED AS PREMATURE UNDER FED. R. CIV. P. 56(f) BECAUSE DISCOVERY HAS YET TO BE CONDUCTED
Defendants’ Motion is premature and should be denied because the discovery process has
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not even begun in this matter and consequently Plaintiffs have not had a reasonable opportunity to present all available facts in support of their Opposition. “As a general rule, summary judgment is proper ‘only after the nonmovant has had adequate time for discovery.’” Iverson v. Johnson Gas Appliance Co., 172 F.3d 524, 530, (8th Cir. 1999) (quoting In re TMJ Litigation, 113 F.3d 1484, 1490 (8th Cir. 1997)). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (summary judgment appropriate when, “after adequate time for discovery,” party fails to establish existence of essential element of party’s case as to which he bears burden of proof); Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986) (plaintiff must present affirmative evidence to defeat proper motion for summary judgment “as long as the plaintiff has had a full opportunity to conduct discovery”).
Indeed, the very text of Rule 56 presumes that a party will have had access to discovery before being forced to respond to a motion for summary judgment. Rule 56(c) states that the court should consider, inter alia, the “depositions, answers to interrogatories, and admissions on file” in assessing whether summary judgment is appropriate. See also Boyd v. Wexler, 275 F.3d 642, 647 (7th Cir. 2001) (criterion for summary judgment assumes that there will have been “evidence gathered in discovery”).
Fed. R. Civ. P. 56(f) expressly provides for the denial of summary judgment motions if the nonmoving party has not had an opportunity to make full discovery. Celotex, 477 U.S. at 326.1 The purpose of this Rule is to guard against the improvident dismissal of valid claims
1 Rule 56(f) provides: Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be
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pursuant to premature summary judgment motions, and thus it “‘should be applied with a spirit of liberality.’” United States v. Casino Magic Corp., 293 F.3d 419, 426 (8th Cir. 2002) (en banc) (quoting 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 3d. § 2740 (1998)). Where the facts that the non-moving party needs in order to oppose the motion are in the sole possession of the movant, summary judgment is particularly inappropriate prior to the non-movant’s opportunity to obtain discovery of those facts. Costello, Porter, Hill, Heisterkamp & Bushnell v. Providers Fidelity Life Ins., 958 F.2d 836, 838-89 (8th Cir. 1992) (“it is not fair to tie the only hand a party has to defend itself”). Indeed, it has been said that, in such circumstances, summary judgment should be denied “almost as a matter of course.” Costlow v. United States, 552 F.2d 560, 564 (3d Cir. 1977).
The facts that Plaintiffs need in order to fully respond to Defendants’ Motion for Summary Judgment are solely in the possession of the Defendants and Defendants have vigorously resisted all informal requests for disclosure of the information. See,e.g., Ex. 2 (2005 Response to FOIA). As detailed in the accompanying Affidavit of Julie Brain, Ex. 1, the facts that Plaintiffs seek to discover concern Defendants’ conduct of 26 lethal injection executions over the past 17 years, facts concerning the development of Defendants’s procedures for conducting such executions, and the qualifications and background of the persons responsible responsible for those executions. Plaintiffs believe that such information will create additional genuine issues of material fact with respect to whether Defendants’ execution procedure
obtained or depositions to be taken or discovery to be had or may make such other order as is just.
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engenders unnecessary risks of inflicting pain and suffering. Defendants have developed their procedures and conducted these executions largely in
secret, shielded from public access, and have taken the position that the information that Plaintiffs seek is exempt from disclosure under the State’s Freedom of Information Act. Id. Accordingly, Defendants’ request for summary judgment based upon their own version of the facts surrounding their conduct of executions, made without affording Plaintiffs an opportunity to formally discover evidence that may cast doubt on that version, is plainly premature and should be denied.
In a related filing, [Doc. 76] (Defendants’ Response to Nooner’s Motion for Expedited Discovery), Defendants criticize Plaintiffs for failing to propound discovery requests during the time in which the matter was before the Eighth Circuit Court of Appeals on Defendants’ appeal of this Court’s Order granting a stay of execution to allow consideration of the merits of the action. Plaintiffs note that they were not permitted to commence the discovery process until the parties conferred pursuant to Fed. R. Civ. P. 26(f), see Fed. R. Civ. P. 26(d), that by Local Rule the Rule 26(f) conference is scheduled by the issuance of an Initial Scheduling Order, Local Rule 16.1, and no such order ever issued in this case.
In any event, regardless of one’s view in hindsight of how Plaintiffs should have proceeded, on July 17, 2007, Defendants issued a brand new written lethal injection procedure. See Doc. 74-3 (“Attachment C - Lethal Injection Procedure Rev. 7-16-2007). Only on that date, then, could Plaintiffs begin to discover the facts relevant to the procedure in accordance with which Defendants currently intend to put them to death. Indeed, if Plaintiffs had conducted discovery procedures prior to the issuance of the current document, a whole new round of
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procedures would have been required following the change of written protocol. In no sense, then, can Plaintiffs be said to have had an adequate opportunity to discover all of the facts essential to their opposition to summary judgment.
Plaintiffs have complied with the technical requirements of Rule 56(f). As noted, accompanying this Response is the Affidavit of Julie Brain, counsel for Plaintiff Terrick Terrell Nooner. Ex. 1. The Affidavit details the information Plaintiffs need to respond adequately to Defendants’ Motion for Summary Judgment, explains why that information is likely to produce a genuine issue of material fact to preclude summary judgment, and provides adequate reasons why such information cannot be presented at this time. See FED. R. CIV. P. 56(f). For the forgoing reasons, Defendants’ Motion for Summary Judgement should be denied as premature.
B. EVEN ON THE EXISTING RECORD THERE ARE NUMEROUS GENUINE ISSUES OF MATERIAL FACT THAT DISENTITLE DEFENDANTS TO JUDGMENT AS A MATTER OF LAW. 1. There Are Numerous Genuine Issues of Material Fact
Even on the record as it stands, prior to any discovery being conducted, this case is replete with genuine issues of material fact that preclude the entry of summary judgment. Under Federal Rule of Civil Procedure 56(c), a moving party may prevail on a motion for summary judgment only if it “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A fact is “material” if it “might affect the outcome” of a case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute about that fact is “genuine,” and summary judgment “will not lie,” where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At this stage, the issue need not be resolved in the party’s favor; “all that is required is that sufficient evidence supporting the
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claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” Id. at 248–49.
In considering motions for summary judgment, courts must view the evidence in the light most favorable to the nonmoving party. Carrington v. City of DeMoines, Iowa, 481 F.3d 1046, 1050 (8th Cir. 2007). In other words, summary judgment should not be granted if there is “the slightest doubt” about the truth of moving party’s version of any material fact. Clausen & Sons v. Theo. Hamm Brewing, 395 F.2d 388, 389 (8th Cir. 1968); Armco Steel v. Realty Inv., 273 F.2d 483, 484 (8th Cir. 1960) (“A genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest doubt as to the facts.”); see Williams v. Thomson Corp., 383 F.3d 789, 791 (8th Cir. 2004) (holding that “the district court correctly applied the summary judgment standard by resolving all doubt in [the nonmoving plaintiff’s] favor”). All inferences from the facts must also be drawn in favor of the nonmovant. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Telleconnect v. Ensrud, 55 F.3d 357, 359 (8th Cir. 1995) (holding that the nonmoving party gets “the benefit of every doubt and every favorable inference”).
In this case, it is plain that a reasonable jury could return a verdict for Plaintiffs based on the expert opinions of Mark J.S. Heath, M.D., alone. Accordingly, there is a genuine issue of material fact and summary judgment must be denied. The fundamental question of fact at issue in this lawsuit is whether the Defendants’ lethal injection procedure subjects Plaintiffs to a substantial risk of unnecessary pain and suffering during the execution process. If, as Plaintiffs contend, the procedure does present such an unnecessary risk, the procedure violates the Eighth Amendment to the United States Constitution and Plaintiffs are entitled to the relief they seek.
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See Taylor v. Crawford, 487 F.3d 1072, 1079 (8th Cir. 2007) (Taylor III) (holding that an execution procedure is unconstitutional where it “involves an unnecessary risk of causing the wanton infliction of pain”); Morales v. Tilton, 465 F. Supp. 2d 972, 974 (N.D. Cal. 2006) (lethal injection procedure violated the Constitution because there was “an undue and unnecessary risk that an inmate w[ould] suffer pain”); Florida v. Lightbourne, No. 42-1981-CF-170, 8 (Fla. 5th Cir. Ct. July 22, 2005) (bench op.) (lethal injection procedure was unconstitutional where there was some likelihood of unnecessary pain); Baze v. Rees, No. 04-CI-01094, 11 (Ky. Franklin Co. Cir. Ct. July 8, 2005) (portion of lethal injection protocol was unconstitutional where there was a “substantial risk of wanton and unnecessary infliction of pain, torture or lingering death”).
Plaintiffs’ highly qualified expert witness, Dr. Heath, unequivocally states in his Declaration his opinion, held to a reasonable degree of medical certainty, that the Defendants’ chosen procedure for lethal injection executions indeed subjects Plaintiffs to a substantial and wholly unnecessary risk of enduring excruciating pain and suffering. See Plaintiffs’ Rule 56.1 Stmt. ¶ 18. Defendants, of course, dispute the validity of Dr. Heath’s conclusions. See Doc. 75 at 13-14 (averring that Arkansas’ procedure “ensures that condemned inmates undergo rapid, painless, and humane deaths without experiencing any unnecessary pain or suffering). They also present the Declaration of their own expert witness, Dr. Dershwitz, in support of their position. [Doc. 74-4.] Nevertheless, “the plaintiff, to survive the defendant’s motion, need only present evidence from which a jury might return a verdict in his favor. If he does so, there is a genuine issue of fact that requires a trial.” Anderson, 477 U.S. at 257. Plaintiffs’ presentation of the Declaration of Dr. Heath, without more, indubitably satisfies this standard.
Indeed, a case involving conflicting opinions of expert witnesses on the ultimate issue is
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a quintessential example of a matter that is inappropriate for summary judgment. See Pachl v. Seagren, 453 F.3d 1064, 1072 (8th Cir. 2006) (district court erred in granting summary judgment in the face of conflicting expert opinions). See also Triple Tee Golf v. Nike, 485 F.3d 253, 264 (5th Cir. 2007) (expert report created genuine issue of material fact); Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005) (holding that “competing expert opinions” present a “classic” case of when a trial of fact is required); Harris v. Provident Life, 310 F.3d 73, 79 (2d Cir. 2002) (district court erred in granting summary judgment where there were “conflicting expert reports presented”); Chevron USA v. Cayetano, 224 F.3d 1030 (9th Cir. 2000) (expert affidavit created genuine issue of material fact); Michaels v. Avitech, 202 F.3d 746, 752 (5th Cir. 2000) (battle of the experts precludes summary judgment). Accordingly, there is a genuine issue of material fact concerning whether the procedures by which Defendants intend to execute the Plaintiffs involves a substantial risk of unnecessary pain, and so summary judgment must be denied.
Within this ultimate factual dispute, there are innumerable subsidiary genuine issues of material fact bound up in this case. As set forth in detail in the accompanying Plaintiffs’ Rule 56.1 Statement of Material Facts as to Which a Genuine Issue Exists to be Tried, (“Plaintiffs’ Rule 56.1 Stmt.”), at issue in this case is not simply the bare terms of Defendants’ new written document, “Attachment C - Lethal Injection Procedure,” but all aspects of the procedure by which they intend to execute Plaintiffs. The issue of whether that procedure engenders an unconstitutional risk of inflicting unnecessary pain and suffering cannot be resolved simply by determining what it is Defendants say they are going to do, the fact finder must also ascertain the likelihood that Defendants will actually be able to successfully perform executions humanely. See Morales v. Tilton, 465 F. Supp. 2d 972, 974 (N.D. Cal. 2006) (framing the question as
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concerning how a protocol is “actually administered in practice”). This requires consideration of all available evidence, such as the conduct of past executions, the qualifications, competency and fitness of the personnel responsible for those executions, the changes to the procedure that have been made in response to past problems and aspects of the procedure that have not been committed to writing such as the physical layout of the execution chamber. See id.
Plaintiffs contend that Defendants have demonstrated on multiple occasions in the past that they are unable or unwilling to reliably perform executions humanely and without inflicting unnecessary pain and suffering. For example, 3-5 minutes after administration of the lethal chemicals began during the execution of Steven Hill in 1992, when Mr. Hill should have already been unconscious, witnesses observed Mr. Hill struggling to breathe. See Plaintiffs’ Rule 56.1 Stmt. ¶ 6. His chest was visibly heaving against the restraints that had been placed on his body and he appeared to be gasping for air. Id.
The death of Ronald Gene Simmons on June 25, 1990 is a dramatic example of an execution that went horribly wrong. For the first two minutes after the drugs began to be administered, Mr. Simmons appeared to witnesses to nod off into unconsciousness as expected. Id. But then, however, three minutes into the process, Mr. Simmons cried out: “Oh! Oh!” Id. He then began to cough sporadically, as though he was having difficulty breathing. Id. Over the next two minutes he coughed about 20 times, each cough causing his stomach to heave and the gurney to shake. Id. Mr. Simmons finally stopped moving 5 minutes after the injection of the lethal chemicals began. Id. He was apparently still not dead, however. Witnesses observed Defendant John Byus adjust the IV catheter in Mr. Simmons arm, fiddle with the tube hanging from the IV bag and then again touch the IV tube in Mr. Simmons’ arm. Id. It was not until
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9:18 pm, 16 minutes after the lethal drugs first began to flow, that the Coroner entered the chamber to pronounce Mr. Simmons dead. Id.
The execution of Rickey Ray Rector, on January 24, 1992, took a total of one hour and nine minutes to complete. Id. Not only was the IV access horribly and painfully botched, resulting in 10 separate puncture wounds and then a deep incision being cut into Mr. Rector’s arm while Mr. Rector moaned in pain throughout, id., but even after an IV infusion was established, things still did not go as they were supposed to. As with Ronald Gene Simmons, for the first two minutes after administration of the lethal drugs began, Mr. Rector appeared to go to sleep. Id. Thereafter, however, Mr. Rector spoke, stating that he was getting dizzy. 5 minutes into the execution, witnesses observed Mr. Rector’s lips begin moving rapidly, as if he was drawing shallow breaths. Id. His lips continued moving that way for a minute. Id. Mr. Rector’s heart did not stop beating until 19 minutes after the execution began. Id.
To be sure, the Constitution does not require that the risk of unforeseen accident be eliminated from the execution process. Taylor, 2007 WL 1583874 *7 (quoting Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994)). But when particular problems are entirely predictable based upon past occurrences, and those responsible fail to take readily available steps to modify their procedure in a way that would rectify and prevent those problems, that failure rises to the level of a constitutional violation. Plaintiffs contend that Defendants have utterly failed to learn the lessons of experience and promulgate a procedure that is adequate to prevent recurrence of the horribly botched executions that they have performed in the past.
Plaintiffs contend that Defendants have failed to ensure that any of the various members of the execution team have minimally sufficient qualifications, training and experience to be able
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to perform their jobs competently and humanely. See Plaintiffs’ Rule 56.1 Stmt. ¶¶ 6-8, 10. See Morales, 465 F. Supp. 2d at 979 (finding the implementation of California’s protocol unconstitutional in part due to a lack of meaningful training and supervision). “Attachment C Lethal Injection Procedure” requires no minimum qualifications of any team member, and Defendants have proven themselves unable or unwilling to recruit qualified, competent individuals in the past. Plaintiffs contend that Defendants continue to permit Defendant John Byus to lead the execution team as the designee of the Deputy Director, in spite of the fact that at least three of the executions over which he has presided have been botched. See Plaintiffs’ Rule 56.1 Stmt. ¶ 6. There is no provision in “Attachment C - Lethal Injection Procedure” for systematic review of team members’ continued fitness to participate in executions, or for screening potential team members for fitness at the time of their initial recruitment. See id. at ¶ 18.
Plaintiffs contend that Defendants have failed to institute a procedure for gaining IV access that is adequate to prevent a repeat of the horrific execution of Rickey Ray Rector. “Attachment C - Lethal Injection Procedure” places no limit upon the number of skin punctures that may be performed in the attempt to obtain subcutaneous IV access, paving the way for another inmate to endure the 10 separate wounds that were inflicted upon Mr. Rector. See Plaintiffs’ Rule 56.1 Stmt. ¶¶ 6–8. Defendants have failed in this regard despite the fact that standard EMS protocols typically call for 2 or 3 attempts only. Even more disturbingly, “Attachment C - Lethal Injection Procedure” fails to prohibit the use of a cut-down procedure in the event that subcutanous IV access proves difficult. This is the procedure that was utilized on Mr. Rector after he had been punctured 10 separate times, and resulted in the deep incision into
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the flesh of his arm. See Plaintiffs’ Rule 56.1 Stmt. ¶¶ 6–8. There could never be any medical justification for using this method of securing IV access during an execution. See id.
“Attachment C - Lethal Injection Procedure” makes clear that Defendants contemplate using inserting central lines in cases in which peripheral IV access is not established. Indeed, Defendants have performed at least one such procedure in the past. See id. ¶ 8. The document does not, however, ensure that the person(s) who will perform this complex, risky, surgical procedure are minimally qualified and competent to do so, or that they have the necessary equipment on hand to not only perform the procedure but also to appropriately respond to common complications if they arise. See id.
Plaintiffs contend that the physical layout and conditions of the execution chamber, and the method of labeling the syringes of lethal chemicals, coupled with the use of untrained lay executioners to push the drugs into the inmate’s system, is tantamount to a recipe for disaster and grossly and needlessly increases the risk that the inmate will not receive the benefit of a full dose of anesthetic prior to the administration of the excruciating painful drugs. Plaintiffs’ Rule 56.1 Stmt. ¶ 10, 12. Plaintiffs further contend that Defendants’ failure to incorporate any meaningful monitoring of the inmate’s anesthetic depth prior to administering those painful drugs falls so far below the applicable standard of care as to be reckless. Plaintiffs’ Rule 56.1 Stmt. ¶ 11. Defendants’ failure to discern the difference between the required surgical plane of anesthesia and mere unconsciousness, together with their belief that anesthetic depth can be successfully monitored using techniques taught in CPR classes, evince their fundamental lack of understanding of what is at stake here. Id.
The provisions of “Attachment C - Lethal Injection Procedure” that pertain to situations
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in which problems with the patency of the IV infusion site are suspected once the execution is underway are so inadequate and misguided that they invite the occurrence of the problems that plagued perhaps the most horrifying known lethal injection execution ever conducted, that of Angel Diaz by the State of Florida in 2006. The document fails to ensure meaningful monitoring of the IV insertion sites adequate to detect problems that may be developing, not only because of the lack of qualification of the individual charged with performing the monitoring, but also because of its failure to require constant surveillance or to ensure that the sites are in clear sight at all times. Plaintiffs’ Rule 56.1 Stmt. ¶ 12.
Worse yet, “Attachment C - Lethal Injection Procedure” directs the execution team to respond to problems that are identified first by reducing the flow rate of the lethal chemicals, and thereafter by switching to the secondary site. The first of these actions is an utterly inadequate contingency plan, and the second is incredibly dangerous and potentially disastrous. See id. If a problem with the first infusion site prevents proper administration of the full dose of Sodium Pentothal, and the Pancuronium Bromide and Potassium Chloride are thereafter administered through a second, patent IV infusion site, the inmate will be insufficiently anesthetized and will suffer the agony of suffocation and the burning pain of the Potassium Chloride, while all the while paralyzed and unable to move or communicate distress. See id.
Plaintiffs further contend that Defendants’ failure to institute a rigorous standardized training procedure for all execution personnel and strict performance criteria for each team member significantly and unnecessarily increases the risk of botched, inhumane executions. Even if personnel selected for the execution team were possessed of adequate professional medical qualifications, which Plaintiffs dispute, extensive training for the particular procedure of
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killing a condemned inmate by lethal injection, not a part of any medical, nursing or EMT school curriculum, is still required. See id. ¶ 18. See also Morales, 465 F. Supp. 2d at 979. No such training is contemplated by "Attachment C - Lethal Injection Procedure."
Plaintiffs also contend that Defendants’ failure to institute a screening process to evaluate all potential execution team members’ skill, competence, professionalism, mental stability, honesty and integrity significantly and unnecessarily increases the risk of botched, inhumane executions. No such screening is contemplated by "Attachment C - Lethal Injection Procedure." Nor have Defendants’ instituted a review process to evaluate and reevaluate all potential execution team members’ fitness to continue to participate in executions.
Plaintiffs contend that Defendants’ failure to institute a reliable record-keeping procedure to allow verification of the amounts of anesthesia used in each execution and to ensure that the anesthetic agent Sodium Thiopental is properly dispensed, controlled and monitored significantly and unnecessarily increases the risk of botched, inhumane executions. See Plaintiffs’ Rule 56.1 Stmt. ¶ 18. No such record-keeping is contemplated by "Attachment C Lethal Injection Procedure."
Rather than taking available steps to amend their lethal injection procedure in ways that will reduce the risk of inhumane executions, Plaintiffs contend that Defendants have changed their procedure in ways that actually make it more likely that excruciating pain and suffering will be inflicted. Defendants have admitted that, prior to the issuance of "Attachment C - Lethal Injection Procedure" on July 16, 2007, their lethal injection procedure required that the Deputy Director or designee meet with the condemned inmate approximately 7 days prior to the scheduled execution to determine whether the inmate’s physical condition might present
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problems for the establishment of IV access. See Doc. 28 ¶ 6. "Attachment C - Lethal Injection Procedure" requires no such meeting.
Prior to the issuance of "Attachment C - Lethal Injection Procedure," Defendants’ lethal injection procedure required that the Deputy Director or designee mix the lethal chemicals and prepare the syringes “under the direct supervision of a licensed, practicing pharmacist.” See Doc. 28 ¶ 8. "Attachment C - Lethal Injection Procedure" requires only that the Deputy Director or designee supervise the mixing and syringe preparation; the document requires no minimum qualifications or training whatsoever of the person(s) performing the actual mixing and syringe preparation and removes entirely the involvement of a licensed, practicing pharmacist.
Prior to the issuance of "Attachment C - Lethal Injection Procedure," Defendants’ lethal injection procedure required that the Deputy Director or designee retain control and custody of the lethal injection drug box from the moment it is sealed until he delivers it personally to the executioners in the execution chamber. See Doc. 28 ¶ 9. In contrast, "Attachment C - Lethal Injection Procedure" requires only that the Deputy Director or designee transfer the box to the institutional vault in the Cummins Unit, and thereafter the drugs are to be delivered by person(s) unknown at an unspecified time to the execution chamber. There is no requirement that the box be delivered by these person(s) to the executioners; it would be perfectly consistent with the terms of the document for the person(s) to leave the box unsupervised in the chamber.
Prior to the issuance of "Attachment C - Lethal Injection Procedure," Defendants’ lethal injection procedure required that the members of the IV Team be “either a [sic] Emergency Medical Technician, a Licensed Practical Nurse, a Registered Nurse or a Medical Doctor.” See
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Doc. 28 ¶ 10. As of June 22, 2006, the IV Team member was an EMT certified at the highest level, that of paramedic, who had been practicing in excess of 27 years. In contrast, "Attachment C - Lethal Injection Procedure" requires only that the individual(s) be “healthcare providers,” a term that is not otherwise defined, and suggests but does not require even the qualifications of even a basic EMT or a nurse.
Prior to the issuance of "Attachment C - Lethal Injection Procedure," Defendants’ lethal injection procedure required that the Deputy Director or designee be in constant direct wireless communication with the executioners in the control room. See Doc. 28 ¶ 15. "Attachment C Lethal Injection Procedure" requires no such wireless communication, and in fact makes no provision for communication of information between any of the execution team members.
Prior to the issuance of "Attachment C - Lethal Injection Procedure," Defendants’ lethal injection procedure required that the execution personnel who would insert a central line if one was deemed necessary be a “surgical team headed by a licensed surgeon.” See Doc. 28 ¶ 16. As of June 22, 2006, the surgical team leader was a Diplomat withe the American College of Surgeons and had been a licensed, practicing surgeon for over 15 years. Id. In contrast, "Attachment C - Lethal Injection Procedure" requires only that the individual(s) be “trained, educated, and experienced.” No minimum qualifications or expertise whatsoever are required.
Prior to the issuance of "Attachment C - Lethal Injection Procedure," Defendants’ lethal injection procedure no longer permitted the use of a cut-down procedure to obtain intravenous access.” See Doc. 28 ¶ 23 n.5. "Attachment C - Lethal Injection Procedure, " however, not only does not prohibit the use of a cut-down, it permits “trained, educated, and experienced” individuals, with no minimum qualifications or expertise whatsoever, to perform such a
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procedure. All in all, Plaintiffs contend, Defendant’s procedure for putting humans to death fails to
even satisfy the veterinary standard of care for the euthanasia of animals. Both the decisions to use Potassium Chloride and Pancuronium Bromide, and the administration of those dangerous, painful drugs without the provision of meaningful monitoring of anesthetic depth, violate veterinary standards and, indeed, would result in criminal liability in some states if used on animals. See, e.g., Fla. Stat. § 828.058; Ga. Code Ann. § 4-11-16; Me. Rev. Stat. Ann., tit. 17, § 1046; Md. Code Ann., Criminal Law, § 10-611; N.Y. Agric. & Mkts Law § 374; Tenn. Code Ann. § 44-17-303; 510 Ill. Comp. Stat. 70/16 (second violation is a felony); Mo. Rev. Stat. § 578.012; S.C. Code Ann. § 47-3-440; Tex. Health & Safety Code Ann. § 821.056.
Plaintiffs contend that, separately and cumulatively, these deficiencies and failings in Defendants’ lethal injection procedure create an unacceptable risk that Plaintiffs will suffer excruciating and wholly unnecessary pain and suffering during their executions. Each therefore constitutes a genuine issue of material fact that requires that Defendants’ Motion for Summary Judgment be denied.
2. The Decision of the Eighth Circuit Court of Appeals in Taylor Does Not Control the Outcome of This Case
Defendants contend that the Eighth Circuit’s decision in Taylor entitles them to summary judgment. Their reliance on Taylor is misplaced, for the facts of the instant case differ from those at issue in Taylor in several crucial respects.2 Defendants’ summary judgment papers first
2 Plaintiffs note additionally that Mr. Taylor has petitioned the Eighth Circuit Court of Appeals for rehearing by the en banc court, and the court has taken the unusual step of requiring a response to the petition by Defendant Crawford et al. Taylor v. Crawford, No. 06-3651 (8th Cir.) It is thus not yet clear whether the panel opinion in Taylor actually represents the law of
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of all neglect to mention that the Taylor litigation was resolved on the merits only after extensive discovery, a full-dress bench trial, and findings of fact, all of which were ordered by the Eighth Circuit Court of Appeals. See Taylor v. Crawford, 445 F.3d 1095, 1099 (8th Cir. 2006) (Taylor I) (remanding so that the parties could engage in “further discovery” and so a full evidentiary hearing could be held). Furthermore, when the state changed its protocol after Taylor I, the Eighth Circuit Court of Appeals remanded for yet further fact development. See Taylor v. Crawford, 457 F.3d 902, 904 (8th Cir. 2006) (Taylor II).
After these proceedings had concluded, and Missouri’s lethal injection procedure had been fully aired out, the Court of Appeals determined that Mr. Taylor had failed to meet his burden of proving that a constitutional violation had occurred. Specifically, the court stated that: “We have very carefully examined the entire record, and we find no evidence to indicate that any of the last six inmates executed suffered any unnecessary pain that would rise to an Eighth Amendment violation.” Taylor III, 487 F.3d at 1085. See also id. at 1075 (“In each of the past six executions, however, death occurred in five minutes or less from the time the first chemical was administered, and there was not a scintilla of evidence that any prisoner ever suffered any pain other than what was necessary to acquire access to the prisoner’s circulatory system through the insertion of the needed intravenous lines”). The court took pains to emphasize that its decision was based upon the record as a whole. Taylor III, 487 F.3d at 1075–77 (recounting the trial testimony at length); id. at 1083 (basing its judgment not only on the state’s written protocol but also on the rest of “the record in this case”). Only in light of this record, in the absence of evidence that any prior executions had been botched, did the Eighth
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Circuit uphold the constitutionality of Missouri’s lethal injection protocol on its face. The record in Taylor thus stands in stark contrast to the record in the instant case, which,
Plaintiffs contend, shows that at least three executions conducted by the Defendants in the past have resulted in excruciating pain and suffering being inflicted upon the condemned inmates. See Morales v. Hickman, 415 F.Supp.2d 1037, 1043-45 (N.Cal. 2006) (noting that record included evidence of problems with prior executions such as “evidence from eyewitnesses tending to show that many inmates continue to breathe long after they should have ceased to do so” which was “evidence of a kind that was not presented in . . . earlier cases”). While the Eighth Circuit found no evidence that the Taylor Defendants had demonstrated their incompetence by failing to reliably conduct executions humanely, here we have evidence that Ronald Gene Simmons was crying out in pain and gasping for breath long after he should have been unconscious. (Simmons Dec.) Here we have evidence that Rickey Ray Rector was punctured 10 separate times before a gash was cut in his arm, and that thereafter he was conscious and vocalizing when he should have been under general anesthesia. See Plaintiffs’ Rule 56.1 Stmt. ¶¶ 6, 18. We also have evidence that Steven Hill was struggling for breath and moving as if he was having a seizure during his execution. See id.
In the face of such strong evidence of the adverse consequences of their prior incompetence, Defendants’ failure to institute and reliably implement a lethal injection procedure that ensures that their future executions are properly conducted creates not a risk of “accident,” Taylor III, 487 F.3d at 1080, but a predictable likelihood that past will be prologue. See Morales v. Tilton, 465 F.Supp.2d 972, 979 (N.D. Cal. 2006) (“the record in this case . . . is replete with evidence that in actual practice [California’s lethal injection protocol] does not
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function as intended. The evidence shows that the protocol and Defendant’s implementation of
it suffer from a number of critical deficiencies”). The analysis that must be conducted in the
instant case to determine whether Defendants’ procedure engenders an unnecessary risk of pain and suffering is thus quite different than the analysis employed by the circuit in Taylor.3
Plaintiffs’ contentions that Defendants have seriously botched several executions in the past, and
have multiply failed to institute or implement a lethal injection procedure that adequately guards
against the recurrence of similar incidents in the future, are genuine issues of material fact that
can only be resolved at a trial following full discovery.
Notably, even a side by side comparison of Defendants’ “Attachment C - Lethal Injection
Procedure” with the written protocol adopted by Missouri in Taylor demonstrates that summary judgment is inappropriate here.4 Defendants’ document suffers from a number of serious
deficiencies that the Missouri protocol avoids, and so the comparison is anything but favorable
to Defendants. The Missouri protocol calls for the administration of 5 grams of Sodium
Thiopental; “Attachment C - Lethal Injection Procedure” calls for only 3 grams. Although
3 A contrary approach would lead to absurd results. If the inquiry were limited to parsing the bare terms of the written protocol no matter how strong the evidence of demonstrated problems with implementation, a State’s lethal injection procedure could be ruled constitutional even if, for example, the executioners openly admitted to routinely omitting the use of the prescribed anesthetic drug altogether. Cf. Morales v. Tilton, 465 F. Supp.2d 972, 979 (N.D. Cal. 2006) (“As it has from its inception, the resolution of this case thus turns on a single factual question: whether [California’s lethal injection protocol], as implemented, provides constitutionally adequate assurance that condemned inmates will be unconscious when they are injected with pancuronium bromide and potassium chloride) (emphasis added).
4 Plaintiffs in no way mean to suggest that if Defendants altered their written document to track word for word the protocol adopted by Missouri, summary judgment would be appropriate. To the contrary, in light of Defendants’ demonstrated history of failures of implementation, substantial genuine issues of fact would remain regarding their ability to implement any newly minted written procedure.
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Plaintiffs do not dispute that a properly administered 3 gram dose of Sodium Thiopental would result in a surgical plane of anesthesia, the lower the dose that Defendants use, the greater the likelihood that, if problems arise and only a fraction of the dose actually reaches the inmate’s brain, the inmate will be conscious and suffering during the execution procedure. (Heath Dec 2006.)
The Eight Circuit noted with approval in Taylor III that Dr. Doe I, the doctor in charge of mixing the chemicals and inserting the IVs in past executions who had been revealed to have dyslexia and to have unilaterally lowered the dose of anesthetic on occasion, would not be participating in future executions. Taylor III, 487 F.3d at 1075, 1082. In this case, Plaintiffs contend that Defendant John Byus is the leader of the execution team and has been for all past lethal injection executions, including those known to have been badly botched. Defendant Byus was participating in executions as recently as 2004, when he presided over the execution of Charles Singleton, see Plaintiffs’ Rule 56.1 Stmt. ¶ 6, and there is no reason to believe that Defendants do not intend for him to continue to do so in the future.
In Missouri, the protocol requires that he lethal chemicals be mixed by a person qualified as a physician, a nurse or a pharmacist. Taylor III, 487 F.3d at 1082. “Attachment C - Lethal Injection Procedure,” in contrast, requires no minimum level of qualifications of the person who will perform the mixing. See Plaintiffs’ Rule 56.1 Stmt. ¶ 10. The mixing is supposed to occur under the supervision of the Deputy Director or designee, but that person in turn is not required to have any minimum level of qualifications either. See id. This is not an insignificant difference; the concentrations of Sodium Thiopental used for executions are different from any of those utilized in clinical settings and thus mixing the drug requires the exercise of
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pharmaceutical knowledge and not simply following the instructions on the package. See id. The individual responsible for obtaining IV access under the Missouri protocol is
required to be either a physician, a nurse, or an EMT, specifically an EMT - Intermediate or an EMT - Paramedic. Taylor III, 487 F.3d at 1082. Under “Attachment C - Lethal Injection Procedure,” the IV Team member(s) are not required to have any minimum qualifications at all; they need only be “healthcare providers,” a term which is otherwise undefined. See Plaintiffs’ Rule 56.1 Stmt. ¶ 7. The document cites physician, nurse or EMT by way of examples of individuals who would satisfy the requirement for a healthcare provider, but stops short of requiring any of these qualifications. The document further does not refer to the level of qualification of any EMT who might be employed, leaving open the possibility that the role may be filled by an EMT-Basic, who is unqualified under Arkansas State law to perform any procedure that is invasive of the body such as an IV insertion. See id. ¶ 7.
The Missouri protocol instructs the medical person, who as noted must be either a physician, a nurse, an EMT - Intermediate or an EMT - Paramedic, to assess the inmate’s consciousness using “standard clinical techniques.” Taylor III, 487 F.3d at 1084. This assessment is performed by the unqualified Deputy Director or designee under “Attachment C Lethal Injection Procedure” and is limited to “procedures as taught in basic life support or CPR courses.” See Plaintiffs’ Rule 56.1 Stmt. ¶ 11.
The Missouri protocol includes a special section outlining requirements for documenting the use and non-use of the lethal chemicals, to ensure that the dosages that are intended to be administered during each execution are in fact used for that purpose. Taylor III, 487 F.3d at 1082-83. Recordation of “the chemicals given, the order in which they are given, and the
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quantities of chemicals used and discarded” is expressly required, and “[a]ny deviations from the written protocol must be promptly reported to the department director.” Id. at 1083. This is important; if there are no checks and balances in place to ensure that the chemicals are properly handled, drugs such as Sodium Thiopental - “an addictive controlled substance,” Morales v. Tilton, 465 F. Supp. 2d 972, 979 n.9 (N.D. Cal. 2006), - may be diverted for illicit use and fail to reach the condemned inmate. “Attachment C - Lethal Injection Procedure” contains no provisions whatsoever requiring documentation of the use of the lethal chemicals. See Plaintiffs’ Rule 56.1 Stmt. ¶ 18.
Finally, the Missouri protocol specifically guards against the potentially catastrophic consequences of using one IV line to administer the anesthetic and another to push the Pancuronium Bromide and Potassium Chloride. The protocol states that: “When the secondary line is used for thiopental, it is also used for the remaining chemicals.” Taylor v. Crawford, No. 2:05-cv-04173-FJG (W.D. Mo.) [Doc. 198-2 at E.4.] This provision thus guards against the disastrous possibility, left wide open in contrast by “Attachment C - Lethal Injection Procedure,” that the anesthetic Sodium Thiopental will be administered through the primary IV insertion site, infiltration will occur at that site and the full dose will fail to reach the inmate’s brain, and then the Pancuronium Bromide and Potassium Chloride will be administered through the secondary, fully functional IV. See Plaintiffs’ Rule 56.1 Stmt. ¶ 12. If that happens, the inmate will be inadequately anesthetized and will experience excruciating pain and agony throughout the administration of the second and third chemicals. See id. III. CONCLUSION
For the foregoing reasons, the Court should find that this case involves multiple genuine
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issues of material fact that preclude the entry of summary judgment and should deny
Defendants’ Motion.
Respectfully submitted,
JENNIFFER HORAN FEDERAL DEFENDER
By: /s/ Julie Brain Julie Brain Assistant Federal Public Defender 1401 W. Capitol, Suite 490 Little Rock, Arkansas 72201 (501) 324-6114 (501) 324-5630 fax
Counsel for Terrick T. Nooner
Alvin Schay Attorney at Law 14 Skyway Drive Little Rock, Arkansas 72207. (501) 376 7000
Deborah Sallings Cauley, Bowman, Carney & Williams, LLP P.O. Box 25438 Little Rock, Arkansas 72201
Counsel for Don W. Davis
Jeffrey M. Rosenzweig Attorney at Law 300 Spring Building Suite 310 Little Rock, Arkansas 72201 (501) 372 5247
Dale E. Adams Montgomery, Adams & Wyatt, PLC 221 West Second Street Suite 408
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Case 5:06-cv-00110-SWW Document 80 Filed 07/30/07 Page 30 of 30 Little Rock, Arkansas 72201 (501) 375 8770 Counsel for Jack H. Jones
CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 30th day of July, 2007, the foregoing Statement was filed using this Court’s EF/CMS electronic filing system and thereby automatically delivered electronically to Assistant Attorney General C. Joseph Cordi, Jr., CatlettPrien Tower Bldg., 323 Center Street, Suite 200, Little Rock, AR 72201-2610.
/s/ Julie Brain Julie Brain
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 Case 5:06-cv-00110-SWW Document 142 Filed 08/05/08 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

TERRICK TERRELL NOONER, and
DON WILLIAMS DAVIS and
JACK HAROLD, JONES, JR.

PLAINTIFF INTERVENOR PLAINTIFF INTERVENOR PLAINTIFF

No. 5:06CV00110 SWW VS.
LARRY NORRIS, Director, Arkansas Department of Correction, et al.

DEFENDANTS

FRANK WILLIAMS, JR.

consolidated with

PLAINTIFF

No. 5:07CV00173 SWW VS.
LARRY NORRIS, Director, Arkansas Department of Correction, et al.

DEFENDANTS

ORDER

Four Arkansas death row inmates bring this action under 42 U.S.C. § 1983, challenging the constitutionality of the State’s protocol for execution by lethal injection. Before the Court is (1) Defendants’ second motion for summary judgment (docket entries #128, #129, #130),
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Plaintiffs’ response in opposition (docket entries #135, #137, #138, #139), and Defendants’ reply (docket entry #140). Also before the Court is Defendants’ motion to lift the stay of execution of Plaintiff Davis’s death sentence (docket entry #131), Davis’s response in opposition (docket entry #136), and Defendants’ reply (docket entry #141). After careful consideration, and for the reasons that follow, summary judgment will be entered in Defendants’ favor, and Davis’s stay of execution will be dissolved.
I. On May 1, 2006, Plaintiff Terrick Terrell Nooner (“Nooner”) commenced this action, claiming that the State’s lethal injection protocol presents an unnecessary risk of conscious suffering and extreme pain, amounting to cruel and unusual punishment prohibited under the Eighth Amendment. The Court permitted Don William Davis (“Davis”) to intervene as party plaintiff, and thereafter Governor Mike Huckabee scheduled Davis’s execution. The Court granted Davis a stay of execution in order to permit him to litigate his challenge to the lethal injection protocol. Defendants appealed the stay, and while that appeal was pending, the Court permitted Jack Harold Jones to intervene as a party plaintiff. Additionally, the Court consolidated with this case a separate action filed by Frank Williams, Jr., also challenging Arkansas’ lethal injection protocol. On July 9, 2007, the Eighth Circuit vacated Davis’s stay of execution, concluding that this Court applied the incorrect standard for determining whether Davis had unnecessarily delayed bringing his claim. Governor Mike Beebe scheduled execution dates for Nooner and Jones, and both inmates moved for a stay of execution in this case. Nooner also moved for a stay of execution in a separate habeas proceeding.
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On September 10, 2007, United States Chief District Judge J. Leon Holmes granted Nooner a stay of execution for the purpose of allowing him to pursue a claim joined in the aforementioned habeas proceeding. On September 11, 2007, this Court denied Nooner’s and Jones’s motions for stays filed in this case, finding that in light of the Eighth Circuit’s opinion in Taylor v. Crawford, 487 F.3d 1072 (8th Cir.2007), Plaintiffs have little chance of success on the merits. The Court also found that Nooner and Jones unnecessarily delayed bringing their claims.
Jones and Nooner appealed from the order denying their motions for stays in this case,1 and Jones petitioned the Eighth Circuit for a stay of execution. In support of his motion, Jones cited the United States Supreme Court’s grant of certiorari in Baze v. Rees, 217 S.W.3d 207 (Ky. 2006), cert. granted, – U.S.—, 2007 WL 2850507 (U.S. Oct. 3, 2007), a case involving an Eighth Amendment challenge to Kentucky’s lethal injection protocol. Jones also argued that, even under existing law, this Court abused its discretion in denying his motion for a stay. See Appellant’s Motion for Stay of Execution , Jones v. Norris, No. 07-3165 (8th Cir. Sept. 30, 2007).
On October 11, 2007, the Eighth Circuit entered a one-sentence order granting Jones’s motion for a stay of execution. The State filed an application with the Supreme Court to vacate the stay, and the Supreme Court entered a one-sentence order denying the application.
While Jones’s application for a stay of execution was pending before the Eighth Circuit, Governor Beebe set Davis’s execution for November 8, 2007. On October 22, 2007, Davis filed a motion for a stay of execution in this case. Finding no rational basis for granting a stay of
1On July 23, 2008, the Eighth Circuit consolidated Plaintiffs’ separate appeals. See Order Granting in Part Motion to Consolidate, No. 07-3165 (8th Cir. July 23, 2008).
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execution for Jones and denying the same for Davis, the Court granted Davis’s motion for a stay. On November 9, 2007, the Court stayed all proceedings in this case pending the Supreme
Court’s decision in Baze, and on November 14, 2007, the Eighth Circuit stayed Jones’s and Nooner’s appeal pending the Supreme Court’s decision in Baze and ruling on a petition for certiorari in Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007).
On April 16, 2008, the Supreme Court issued its decision in Baze, upholding Kentucky’s lethal injection protocol, see Baze v. Rees, — U.S. —, 128 S.Ct. 1520 (2008 ), and on April 21, 2008, the Supreme Court denied certiorari in Taylor v. Crawford. See Taylor v. Crawford, 487 F.3d 1072 (8th Cir.2007), cert. denied, 128 S. Ct. 2047 (2008). On May 21, 2008, the Court reopened this case, and on May 22, 2008, the Eighth Circuit vacated the stay of proceedings in Nooner’s and Jones’s appeal of this Court’s decision to deny their motions for stays.
II. Since 1983, Arkansas’ lethal injection statute has provided that the “punishment of death is to be administered by a continuous intravenous injection of a lethal quantity of an ultra-shortacting barbiturate in combination with a chemical paralytic agent until the defendant's death is pronounced according to accepted standards of medical practice.” Ark. Code Ann. m§ 5-4617(a)(1). Arkansas law gives the Director of Arkansas Department of Correction (“ADC”), Larry Norris (“Norris”), the responsibility to determine the substances to be administered and the procedures to be used in any execution. See Ark. Code Ann. § 5-4-617(a)(2). Arkansas’ lethal-injection protocol calls for the administration of three chemicals, each followed by a saline flush, in the following amounts and order: (1) 3 grams of sodium thiopental, administered to cause unconsciousness; (2) 100 milligrams of pancuronium bromide,
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administered to cause paralysis; and (3) 240 milliequivalent of potassium chloride, administered to stop the heart. Injections are administered by way of injection devices located in a control room that is separated from the execution chamber by a wall that contains an observation window. The injection devices are connected, by extension tubing, to intravenous (“IV”) catheters inserted into each arm, or other anatomical venous points of entry, of the condemned inmate. The catheters are inserted by an IV team, and the injections are administered by executioners.
Since the initiation of this lawsuit, Norris has twice amended the ADC’s lethal injection protocol in an effort to reduce what he considers a minimal possibility that a condemned inmate would experience unnecessary pain during an execution and to reduce existing practices to writing. See docket entry #74, Attach. #1 (July 16, 2007 Norris Dec.), docket entry #129, Attach. #1 (May 27, 2008 Norris Dec.).
The current protocol, like the original, makes the ADC Deputy Director for Health and Correctional Programs (“Deputy Director”), or his designee, responsible for carrying out or supervising several aspects of the procedure. The protocol states: “Unless otherwise stated, the Deputy Director, or the designee, shall be healthcare trained, educated, and/or experienced in matters related to the establishment and monitoring of IVs, the mixing and administration of lethal chemicals, and assessing the presence or absence of consciousness.” (ADC Administrative Directive 08-28, Attach. C, Sec. I.1.) The protocol provides that members of the IV team must be certified or licensed individuals--emergency medical technicians (“EMT’s”), nurses, physician assistants, or physicians--with at least two years of professional experience.
Regarding the preparation of lethal chemicals, the protocol provides that the Deputy
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Director, or the designee, “shall verify as to type and concentration, and thereafter supervise the mixing or reconstituting of the [lethal-injection] chemicals in such a manner as will meet lethal injection requirements[2] and in accordance with manufacturer’s instructions.” (ADC Administrative Directive 08-28, Attach. C, Sec. I.2.) The mixed chemicals are then transferred to syringes labeled with numbers that correspond to the order in which they are administered. The syringes are placed in box, which is secured and conveyed to the Cummins Unit. The protocol provides that the Deputy Director, or designee, “shall maintain personal, physical custody of the lethal injection drug box and physically convey the box to the Cummins Unit for secure storage in the institutional vault until such time as it is delivered to the execution chamber for use.” (ADC Administrative Directive 08-28, Attach. C, Sec. I.3.)

2Section IV of the amended protocol identifies the contents of the lethal injection drug box, denoting the administration sequence and chemical makeup of each chemical used in the procedure as follows:

SYRINGE LABELED/ MARKED

CONTENTS

#1/#2
#3/#6 #4/#5
#7/#8
Back up syringes:

Sodium Pentothal, 3.0 grams (two (2) syringes of 1.5 grams in 60 cc) Normal Saline, 50 cc each Pancuronium Bromide, 100 mg (two (2) syringes of 50 mg in 50 cc) Potassium Chloride, 240 mEq (two (2) syringes of 120 mEq in 60 cc)

#B1/B2 #B3

Sodium Pentothal, 3.0 grams (two (2) syringes of 1.5 grams in 60 cc) Normal Saline, 50 cc

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On the evening of the execution, the executioners, under the supervision of the Deputy Director or his designee, enter the injection room prior to the execution and inventory the lethal injection drug box to ensure that all lethal chemicals are accounted for and that infusion devices are ready.
Prior to the time set for execution, the condemned inmate is removed from a holding cell, strapped to a gurney, and transported to the execution chamber. The Deputy Director or his designee affixes cardiac monitor leads to the condemned inmate, and the gurney is positioned in manner that allows the Deputy Director or his designee and the executioners to directly observe the condemned inmate’s face and IV infusion sites.
Section II of the protocol covers the IV set-up procedure and provides that the Deputy Director, or his designee, shall have the IV team place an IV infusion device (catheter) in each arm, or other standard anatomical venous point of entry, of the condemned inmate. After insertion of IV lines, an IV setup is inserted into the outlet of a bag of infusion medium containing dextrose 5 percent normal saline solution (D5NS). Two set-ups are prepared in this manner. Next, tubing for both set-ups is connected to the receiving port of 2, 3-way injection devices located in the control room. Tubing is then connected to discharge ports on the injection devices and connected to the IV insertion cites, and the tubing is cleared of air and made ready for use.
Once infusion of D5NS has been assured, the IV devices are secured. The IV sets run at a slow rate and are ready for the insertion of syringes containing the lethal chemicals. The amended protocol requires that the Deputy Director, or his designee, “shall ensure that the cardiac monitor is ‘on’ and functioning properly and maintain observation of IV infusion(s) to
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ensure that the rate of flow is uninterrupted.” (ADC Administrative Directive 08-28, Attach. C,
Sec. II.7.) The amended protocol mandates: “NO FURTHER ACTION shall be taken until the
prearranged signal to start the injection of lethal chemicals is given by the Warden.” (ADC
Administrative Directive 08-28, Attach. C, Sec. II.7.)
In the event that a patent IV infusion site cannot be established, the amended protocol
requires the following action:
[T]he IV Team shall be directed by the Deputy Director, or designe e, to evaluate other possible infusion sites. All effort will be made to establish two (2) unrelated intravenous infusion sites. If one (1) patent infusion site is established, and a second site proves to be a futile effort, the Deputy Director, or designee, may direct the IV Team to suspend further action. In the casethat no patent infusion site is established after reasonable attempts as determined by the IV Team, the Deputy Director, or designee will direct the IV Team to suspend further action and thereafter summon trained, educated, and experienced person(s) necessary to establish a primary IV line as a peripheral line or as a central venous line. (ADC Administrative Directive 08-28, Attach. C, Sec. II.8.) The amended protocol provides:
EVERY EFFORT WILL BE EXTENDED TO THE CONDEMNED INMATE TO ENSURE THAT NO UNNECESSA RY PAIN OR SUFFERING IS INFLICTED BY THE IV PROCEDURE. STANDARD PRACTICE OF USING A LOCAL ANESTHETIC WILL BE ACCOMMODATED AS NECESSARY.
Section III of the protocol covers the injection procedure and provides that the 3-way
injection device facilitates the movement of fluid from the D5NS bag and allows introduction of
lethal chemical. A valve directs which fluid enters the IV set up. When the signal to commence
is given by the Warden, the executioners administer the lethal chemicals under the direction of
the Deputy Director, or his designee, as follows:
a. Syringe #1 (containing sodium thiopental) shall be inserted into the designated receiving port of the 3-way control device.
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b. The flow of IV solution will be interrupted by moving the 3-way valve assembly towards the IV solution receiving port. c. The contents of Syringe #1 shall commence with a steady even flow of the lethal chemical. Only a minimum amount of force will be applied to the syringe plunger. d. When the contents of Syringe #1 have been injected, the three-way valve assembly will be moved so as to shut off the infusion of lethal chemical and resume infusion of IV solution. e. Syringe #1 will be replaced by Syringe #2 and the procedure described in subparagraphs a-d for Syringe #1 will be repeated. This process will be repeated for all subsequent syringes. Following the administration of the first three syringes (2 injections of 1.5 grams of sodium thiopental, followed by a saline flush) the Deputy Director or his designee “will assess and monitor the condemned inmate’s lack of consciousness by using standard procedures as taught in basic life support or CPR courses, such as checking for movement, opened eyes, eyelash reflex, and response to verbal commands and physical stimuli.” (ADC Administrative Directive 08-28, Attach. C, Sec. III.2.f.). Once the Deputy Director or his designee determines that the condemned inmate is unconscious, and at least three minutes have elapsed from starting Syringe #1, all remaining chemicals will be administered to the unconscious inmate in numerical sequence, Syringe #4 through Syringe #8. The protocol provides that if the Deputy Director determines that the condemned inmate remains conscious following the administration of Syringe #3, the back-up syringes of sodium thiopental and a repeat normal saline wash shall be administered into the secondary or alternative IV line. Thereafter, once the Deputy Director, or his designee, determines that the condemned inmate is unconscious, and at least three minutes have elapsed from starting Syringe #B1, all remaining chemicals will be administered to the unconscious inmate in numerical
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sequence into the secondary or alternative IV line; Syringe #4 through Syringe #8. The protocol requires that a cardiac monitor be used to display heart function. When all
lethal chemical syringes have been administered, and a flat-line is observed for a minimum of three to five, three-second sweeps on the cardiac monitor, the Coroner shall be summoned for purpose of pronouncing death.
Throughout the infusion process, the Deputy Director or his designee “will closely monitor the infusion site for evidence of infiltrate, vein collapse, or other challenge to the patency of the infusion site.” (ADC Administrative Directive 08-28, Attach. C, Sec. III.2.i.) If a problem is suspected, the Deputy Director, or his designee, will direct reduction of lethal chemical flow rate or redirect chemical to secondary site.
The amended protocol requires the following actions when an infusion site is suspected to be compromised: First, the chemical flow rate will be reduced. If problem persists, the administration procedure will be ceased; the curtain to death chamber will be closed; the IV Team will be summoned, and infusion site problem corrected. If all efforts to re-establish patent infusion site fail, the Deputy Director or his designee will direct the IV Team to suspend further action and a “trained, educated, and experienced person [or persons]” necessary to establish a primary IV line as a peripheral line or as a central venous line will be summoned to facilitate an IV infusion site. (ADC Administrative Directive 08-28, Attach. C, Sec. III.2.i.) When the infusion compromise is corrected, the IV Team and the summoned person(s) will be excused, the curtain reopened, and the lethal injection procedure continued.
III. The parties agree that unless thiopental is properly administered, a condemned inmate
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will suffer pain upon administration of potassium chloride, and will be unable to demonstrate his suffering because of the paralyzing effect of pancuronium bromide. Plaintiffs do not dispute that proper administration of 3 grams of sodium thiopental will ensure that they feel no pain after the administration of pancuronium bromide and potassium bromide. However, they contend that Arkansas’ protocol subjects them to cruel and unusual punishment because inadequate procedures, poor facilities, and unqualified personnel create a substantial risk that injections of sodium thiopental will not be successfully delivered, and they will feel the agonizing effects of the final two chemicals. Plaintiffs also assert that the protocol subjects them to painful venous access procedures.
Defendants assert that pursuant to the standard set forth in Baze v. Rees and the Eighth Circuit’s opinion in Taylor v. Crawford, Arkansas’ lethal injection protocol passes examination under the Eighth Amendment, and they are entitled to summary judgment.3 In Taylor v. Crawford, 487 F.3d 1072 (8th Cir.2007), cert. denied, 128 S.Ct. 2047 (2008), the Eighth Circuit

3Summary judgment is appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). As a prerequisite to summary judgment, a moving party must

demonstrate “an absence of evidence to support the non-moving party’s case.” Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for

summary judgment, the non-moving party must “do more than simply show there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986).

The non-moving party may not rest on mere allegations or denials of his pleading but

must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Id. at

587 (quoting Fed. R. Civ. P. 56(e)).

“[A] genuine issue of material fact exists if: (1)

there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the

dispute is genuine, that is, a reasonable jury could return a verdict for either party.” RSBI

Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).

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upheld Missouri’s lethal injection protocol. The Court emphasized that the proper focus when evaluating an execution protocol under the Eighth Amendment is not the risk of accident, but “whether the written protocol inherently imposes a constitutionally significant risk of pain.” Taylor, 487 F.3d at 1080. The Court stated: “If [a] protocol as written involves no inherent substantial risk of the wanton infliction of pain, any risk that the procedure will not work as designated in the protocol is merely a risk of accident, which is insignificant in our constitutional analysis.” Id. (citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947)).
Missouri’s protocol uses the same three-chemical sequence as prescribed by Arkansas’ protocol, but Missouri requires a 5-gram dose of sodium thiopental. Although the ADC’s protocol calls for only 3 grams of sodium thiopental, Plaintiffs’ expert, Mark J. S. Heath, an anesthesiologist, acknowledges that 2 grams of sodium thiopental, if properly administered, would be more than sufficient to cause unconsciousness. (6/11/2006 Heath Dec. ¶ 26.)
Missouri’s protocol requires that a physician, nurse, or pharmacist prepare the lethal chemicals, which are injected by non-medical employees. Arkansas’ protocol requires that the person supervising the preparation of lethal chemicals, the Deputy Director or his designee, be trained, educated, or experienced in matters related to mixing of lethal chemicals and that he or she ensures that the manufacturer’s instructions are followed. See Baze, 128 S. Ct. at 1533(approving similar guidelines regarding the mixing and reconstitution of lethal chemicals).
The Missouri and Arkansas protocols both require that IV insertions be accomplished by medical personnel–a physician, nurse, or EMT. Both protocols require confirmation, following administration of thiopental, of the condemned inmate’s lack of consciousness. Both protocols call for administration pancuronium bromide and potassium chloride only after it is determined
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that the inmate is unconscious, and only after the expiration of three minutes from the time administration of sodium thiopental begins. Arkansas’ protocol further requires that throughout the infusion process, the Deputy Director or his designee shall closely monitor the infusion site for evidence of problems. Both protocols provide for back-up syringes of sodium thiopental, to be administered though the secondary or alternative IV line if needed. Both protocols provide that if a peripheral IV site cannot be established, a peripheral or central venous primary IV line will be establish by a person with the training, education, and experience necessary for the procedure.
The Eighth Circuit concluded that the only inherent risk in Missouri’s written procedure came from the risk of inadequate anesthetization. However, the Court concluded that Missouri’s protocol, which this Court finds to be substantially similar to Arkansas’, “renders any risk of pain far too remote to be constitutionally significant.” Taylor, 487 F.3d at 1085.
In Baze v. Rees, 128 S.Ct. 1520 (2008 ), the Supreme Court upheld Kentucky’s lethal injection protocol against an Eighth Amendment challenge. Kentucky’s protocol, like Arkansas’, involves the injection of 3 grams of sodium thiopental, followed by injections of pancuronium bromide and potassium chloride. The protocol mandates that members of the IV team, who site and insert the IV lines, be certified medical assistants, phlebotomists, EMT’s, paramedics, or military corpsmen with at least one year of professional experience. The protocol further requires that the execution team, including the IV team, participate in 10 practice sessions per year, which includes a walk through of the execution procedure and siting IV catheters into volunteers.
Under Kentucky’s protocol, the IV team has up to one hour to establish both primary and
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secondary peripheral intravenous sites in the arm, hand, leg, or foot of the inmate. Kentucky’s execution facilities, similar to Arkansas’, consist of an execution chamber and a control room, separated by a one-way window. Id. at 1528. The lethal drugs are administered remotely from the control room through IV tubing. Id. If the warden and deputy warden, who are positioned in the execution chamber with the prisoner, determine through visual inspection that the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopental, a new 3-gram dose of thiopental is administered before injecting the pancuronium bromide and potassium chloride. Id. Additionally, the warden and deputy warden watch for signs of infiltration or problems with the IV catheters or tubing. Id. at 1534.
In a plurality opinion announcing the judgment of the Court, Chief Justice Roberts began by recognizing that capital punishment is constitutional, and “[i]t necessarily follows that there must be a means of carrying it out.” Baze, 128 S. Ct. at 1529. He noted that “[s]ome risk of pain is inherent in any method of execution-no matter how humane-if only from the prospect of error in following the required procedure,” and “the Constitution does not demand the avoidance of all risk of pain in carrying out executions.” Id.
According to the standard set forth in the plurality opinion, to constitute cruel and unusual punishment prohibited under the Eighth Amendment, an execution method must present a “substantial” or “objectively intolerable” risk of serious harm. Baze, 128 S. Ct. at 1531. The plurality acknowledged that failing a proper dose of sodium thiopental, a condemned inmate would experience suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. Baze, 128 S.Ct. at 1533. However, a risk of future harm qualifies as cruel and unusual punishment only if the conditions presenting the risk are “‘sure or
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very likely to cause needless suffering and give rise to sufficiently imminent dangers.’” Baze,
128 S. Ct. at 1530-31 (citing Helling v. McKinney, 509 U.S. 25, 33, 34-35, 113 S. Ct.
2475(1993)). In light of built-in safeguards included in Kentucky’s written protocol, particularly
the requirement that members of the IV team have at least one year of professional experience,
the plurality concluded that any risk of pain and suffering during administration of the final
chemicals was not so substantial or imminent as to amount to an Eighth Amendment violation.
Baze, 28 S.Ct. at 1534.
Speaking to whether the plurality’s standard would resolve cases involving challenges to
three-drug protocols used in other states, Chief Justice Roberts stated:
A stay of execution may not be granted on the grounds asserted here [4] unless the condemned prisoner establishes that the State’s lethal injection protoc ol creates a demonstrated risk of severe pain. He m ust show that the pain is substantial whe n compared to the known alternatives. A state with a lethal injection protocol substantially similar to the protocol w e uphold today w ould not create a risk that meets this standard.
Baze, 128 S. Ct. at 1537.
Defendants assert that Plaintiffs are unable to demonstrate that they are under a
4Like Plaintiffs, the condemned inmates who challenged Kentucky’s protocol in Baze admitted that proper administration of sodium thiopental eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium bromide and potassium chloride, but they claimed that a significant risk existed that the sodium thiopental would not be properly administered and they would experience intense pain and suffering after administration of pancuronium bromide and potassium chloride. The solution proposed by the petitioners in Baze was elimination of pancuronium bromide and potassium chloride, and additional monitoring by trained personnel to ensure successful delivery of sodium thiopental. The Baze plurality observed that if an Eighth Amendment violation could be established based merely by showing a marginally safer alternative, it “would threaten to transform courts into boards of inquiry charged with determining ‘best practices’ for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology.” Baze, 128 S. Ct. at 1531.
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substantial or objectively intolerable risk of harm because Arkansas’ lethal injection protocol is substantially similar to the Missouri protocol upheld in Taylor and “even stronger” than Kentucky’s protocol upheld in Baze. Plaintiffs argue that Arkansas’ lethal injection protocol differs from the protocols upheld in Taylor and Baze because it (1) fails to prohibit a cut-down procedure; (2) permits the insertion of a central venous line by individuals who are not qualified to perform the procedure; (3) fails to prohibit intracardiac infusion; (4) causes gratuitous and unnecessary pain and suffering as demonstrated by past executions in Arkansas; (5) fails to provide for an adequately qualified IV team; (6) fails to provide for adequate facilities; (7) fails to provide for adequate monitoring of IV infusion sites; and (8) contains a potentially disastrous back-up plan. The Court will consider each argument separately.
1. Cut-Down Procedure A newspaper article covering the execution of Rickey Ray Rector in 1992 states that Rector, who was 298 pounds and had compromised veins, moaned as he underwent numerous attempts to establish a peripheral IV line. Before a catheter was successfully placed in a vein on the top of Rector’s right hand, the IV team attempted to gain access to a vein by performing a cut-down procedure on Rector’s right arm. Rector’s post-mortem photographs show nine needle marks on his arms and hands and a two-inch wide incision on the inside of his right arm. See docket entry #137, Exs. ##15-22. Plaintiffs assert that Arkansas’ protocol constitutes cruel and unusual punishment because it does not specifically preclude the possibility of using the “brutal, medically unacceptable” cut-down procedure endured by Rector. In Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117 (2004), the Supreme Court permitted a death row inmate to bring a § 1983 action
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challenging the use of a cut-down procedure that would be applied to him because of his particular physical condition–severely compromised veins. Dr. Heath, the plaintiff’s expert witness in Nelson, attested that the cut-down procedure is painful and dangerous and that in light of less invasive means of venous access, namely percutaneous central line placement, there is no valid reason to employ the cut-down procedure. See Nelson, 541 U.S. at 646, 124 S. Ct. at 2124. Dr. Heath described a cut-down procedure as making a deep incision through the skin, connective tissue, and underlying layers of fat and muscle until the region surrounding a large vein is reached. See Nelson v. Campbell, 286 F. Supp. 2d 1321, 1323 (M.D. Ala. 2003), rev’d, 541 U.S. 637, 124 S.Ct. 2117 (2004)
Plaintiffs provide no evidence that they will be subject to a cut-down procedure as described by Dr. Heath in Nelson. Previously, Arkansas’ protocol contained a specific provision permitting a cut-down procedure to gain venous access. See docket entry #139, Ex. #30 (ADC Administrative Directive 05-43, Attach. C, Sec. II.8). The current protocol contains no such provision, there is no evidence that the ADC has employed a cut-down procedure since Rector’s execution in 1992, and Plaintiffs do not contend that their physical conditions will present difficulties in obtaining venous access. Furthermore, the ADC’s chief deputy director, Ray Hobbs, testifies that in the event that an incision is necessary in order to gain venous access, it will be made by a licensed physician and will not go through muscle tissue. Docket entry #140, Attach.
The Court finds no evidence that Arkansas’ current protocol subjects them to the type of cut-down procedure at issue in Nelson, and apparently performed on Rector in 1992. The Court further finds that if the IV team is unable to establish a peripheral IV site percutaneously, it
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would not amount to cruel and unusual punishment for a physician to make an incision necessary to gain access to a vein. See Baze, 128 S. Ct. at 1530-31 (citing Helling v. McKinney, 509 U.S. 25, 33, 34-35, 113 S. Ct. 2475, explaining that to constitute cruel and unusual punishment the conditions presenting a risk must be sure or very likely to cause needless suffering and give rise to sufficiently imminent dangers).
2. Qualifications of Persons Performing Central Line Placement Plaintiffs assert that this Court must decide “whether the Constitution permits Defendants to employ a person or persons of undetermined credentials, experience, and competence to insert central lines during executions.” Docket entry #135, at 10. Missouri’s protocol, upheld in Taylor v. Crawford, provides: “Medical personnel may insert the primary IV line as a peripheral line or as a central venous line (e.g. femoral, jugular, or subclavian) provided they have appropriate training, education, and experience for that procedure.” Defs.’ Resp. to Court Order of Sept. 12, 2006, Ex. A, Taylor v. Crawford, (W.D. Mo. 2006)(No. 05-4173-CV-C-FJG). Arkansas’ protocol similarly requires that IV team members be licensed or certified healthcare providers, such as physicians, nurses, or emergency medical technicians, with at least two years of professional experience. The protocol further provides that if a problem develops with an infusion site and efforts to re-establish a patent infusion site fail, “trained, educated, and experienced persons necessary to establish a primary IV line as a peripheral line or as a central venous line will be summoned to facilitate an IV infusion site.” (ADC Lethal Injection Protocol, revised 05/22/08, Sec. III.i.3.). Plaintiffs contend that the foregoing language is “vacuous verbiage that in no way protects the condemned inmate from being subjected to butchery at the hands of incompetent
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personnel.” (07/30/07 Heath Dec., ¶24.) In response to Plaintiffs’ charge, Defendants submit the following affidavit testimony of ADC official Ray Hobbs:
Days prior to the scheduled execution, the condem ned inmate is exam ined and evaluated for possible IV infusion sites. If it appears during that examination that it will be dif ficult to establish an IV line on the day of the execution, then the condemned inmate is asked to allow a central venous line to be established prior to the execution. If the condemned inmate consents, then a licensed physician who is credentialed to establish a central venous line performs that procedure in a clinical setting before the scheduled execution. Suchadvance procedures have not required the use of an incision in the past. Docket entry #140, Attach. Hobbs further t estifies that the ADC “interprets, understands, and intends” that if it is necessary to establish a central venous line during an execution, the procedure will be conducted by a licensed physician who possesses the necessary credentialsI.d. The Court finds that Arkansas’ protocol adequately requires that qualified medical personnel carry out central line placement in the event that the procedure is necessary. 3. Intracardiac Infusion Plaintiffs state that Defendants have contemplated using an intracardiac infusion procedure during lethal injection executions, which they assert is an extraordinarily dangerous procedure involving the insertion of a large needle directly into heart muscle. By affidavit, Chief Deputy Director Hobbs testifies: “an intracardiac infusion will not be performed during any further lethal injection execution carried out by the ADC.” Docket entry #140, Attach. The current protocol contains no provision calling for intracardiac infusion, and based on Hobbs’ affidavit, the Court finds that the ADC will not use the procedure in carrying out a death sentence. Accordingly, the Court finds no genuine issues of material fact on this issue. 4. Past Executions
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In Baze, the Supreme Court noted that only one Kentucky prisoner had been executed since the Commonwealth adopted the lethal injection procedure, and no problems were reported in connection with that execution. See Baze, 128 S. Ct. at 528. Arkansas, however, has conducted 27 executions by lethal injection, and Plaintiffs contend that four of those executions were “botched” and “likely . . . excruciatingly and unconstitutionally torturous for the prisoner involved.” (Plfs.’ Resp. at 3.)
Dr. Heath acknowledges that 2 grams of sodium thiopental (1 gram less than the dose mandated by the ADC’s protocol) if properly administered into the bloodstream, “would be more than sufficient to cause unconsciousness and, eventually, death, if no resuscitation efforts were made . . . .” (6/11/2006 Heath Dec. ¶ 26.) However, Dr. Health states that his research indicates that executions have occurred where the full dose of sodium thiopental listed in the protocol was not fully and properly administered.
According to Dr. Heath, witness accounts and execution records regarding the executions of Arkansas death row inmates Ronald Gene Simmons, Rickey Ray Rector, Steven Hill, and Christina Riggs “are indicative of problems with the administration of lethal drugs and raise concerns that adequate anesthesia may not be being reliably provided.” (6/11/2006 Heath Dec. ¶ 48.) Dr. Heath repeats the following information from a newspaper article5 containing a reporter’s personal account of the 1990 execution of Ronald Gene Simmons, the first person to be executed in Arkansas by lethal injection:
The administration of lethal chemicals began at 9:02 p.m. Between 9:02 and 9:04
5Statements contained in newspaper articles used to prove the truth of the matter asserted are inadmissable hearsay, most likely double hearsay. However, an expert may rely upon otherwise inadmissible evidence in forming his opinion if the facts and data upon which he relies are of a type reasonably relied upon by experts in his field. See Fed. R. Evid. 703.
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p.m. according to eyewitnesses, Mr. Sim mons appeared t o nod off into unconsciousness. However, at 9:05 p.m . he called out “Oh! Oh!” and began to cough as though he m ight be having difficulty breathing. During the next two minutes, he coughed approximately 20 times. With each cough his stomach heaved slightly and the gurney to which he was strapped shook. Mr. Simmons became still at 9:07 p.m., after which his face and armturned first blue and then purple. An ADC employee twice appeared to adjust the IV tube in Mr. Simmons’ arm, and not until 9:19 p.m. was Mr. Simmons pronounced dead by the coroner.
(6/11/2006 Heath Dec. ¶ 43.) Docket entry #82, Ex. #5, ¶ 43.
Dr. Heath opines that Simmons’s initial vocalizations and coughing were
inconsistent with “the induction of a surgical plane of anesthesia by sodium thiopental.”
(6/11/2006 Heath Dec. ¶ 44.) He states that the typical reaction to the administration of
sodium thiopental is yawning and drawing one or two deep breaths. (Id.)
Regarding the execution of Rickey Ray Rector in 1992, Dr. Heath summarizes the
following “first-person account from the Associated Press” set forth in a newspaper
article:
The medical team secured the tubes to Rector about 9:40 p.m. and the dark curtain opened 10 minutes later. Rector was strapped to a gurney, a white sheet covered him from his feet to his lower lip.
The murderer moved his lips, but he could not be heard through the gla ss. Prison officials later said Rector’s last words were: “I got baptize d and saved.” Lockhart gave the order to begin the lethal dripabout 9:50 p.m., 50 minutes behind schedule.
Rector blinked his eyes slowly. He ol oked like a man nodding off to sleep for about two minutes when he closed his eyes for good.
* * * *
About 9:55 p.m., Rector’s lips moved rapidly–as if he was drawing shallow breaths. His lips stopped moving a minute later. He didn’t move again.
At 10:06 [a witness] looked at what appearedto be a heart monitor at the head of the gurney. “It looks like it’s flat-lining,” he sa id. “Oh, there was a jum p. There’s another flutter.”
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Two minutes later, he said, “there’s not anything moving in that monitor at all. It’s straight across.” Docket entry #137, Ex. #11. John Jewell, an attorney who represented Rector and witnessed his execution, testifies by declaration that Rector’s executioners had difficulty establishing an IV site, and he heard Rector telling the executioners where they could get access to a vein. Docket entry #82, Ex. 23, ¶8. Jewell states: “Even once the IV was in place, the rest of the procedure still took another ten minutes or more. . . . It was a horrible experience.” Id., ¶9. Dr. Heath repeats information contained in a declaration by attorney Charles L Carpenter, who represented Steven Douglas Hill and witnessed Hill’s lethal injection execution in 1992. Carpenter states his observations as follows: Approximately 3-5 m inutes after the IV fluid began to flow, I noticed Stephen struggling to breathe. He was strapped down, but his chest was heaving against the wide belt that covered his chest. He appeared to be gasping for air. Within another minute, he turned a bright red color and thenlay completely still. It was another 2-3 minutes before he was pronounced dead. Docket entry #82, Ex. #6, ¶8. Plaintiffs also submit a copy of a newspaper article about Hill’s execution with a headline that reads: “This time, execution goes smoothly.” Docket entry #82, Ex. #7. As for the 2000 execution of Christina Riggs, Dr. Heath states that the procedure was delayed for 18 minutes while ADC personnel “struggled” to insert the IV line into her elbows. (06/11/07 Heath Dec., ¶ 47.) He states that “a minute after the drugs had purportedly begun to flow into her body, Mr. Riggs was still vocalizing. Witnesses heard her say, “I love you my babies.” (06/11/07 Heath Dec., ¶ 47.). According to Dr. Heath, the preceding record of past executions in Arkansas “provide
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evidence that is indicative of continued consciousness following the purported administration of sodium pentothal.” (06/11/07 Heath Dec., ¶ 42.) Even assuming that Simmons, Rector, Hill, and Riggs were conscious for more than one minute after the administration of sodium thiopental began, the record contains no evidence to support Plaintiffs’ theory that Arkansas’ current protocol subjects them to a substantial risk that they will be conscious during the administration of pancuronium bromide and potassium chloride.
The record contains no evidence regarding the rate at which lethal chemicals were injected during past executions or when the last two chemicals were administered. Furthermore, unlike the protocols in place when the so-called “botched” executions took place, the ADC’s current protocol specifically requires that the last two chemicals are administered only after the Deputy Director determines that the inmate is unconscious and three minutes have passed from the time that administration of sodium thiopental begins. Compare docket entry #21, Ex. #1 (ADC Administrative Directive dated 05/23/1996, Attach. C) and docket entry #138, Ex. #30 (ADC Administrative Directive dated 11/23/05, Attach. C) with docket entry #129, Ex. A (ADC Lethal Injection Protocol, Revised May 22, 2008).
The Court finds that the evidence presented regarding lethal injection executions that occurred in the past fails to demonstrate that Arkansas’ current protocol exposes Plaintiffs to an objectively intolerable risk of pain. See Baze, 128 S. Ct. at 1537(citing Farmer v. Brennan, 511 U.S. 825, 826 and n.9, 114 S. Ct. 1970)(stating that what the Eighth Amendment prohibits is wanton exposure to objectively intolerable risk, not simply the possibility of pain).
5. IV Team Qualifications Plaintiffs assert that “members of the IV Team in Arkansas are not required to have qualifications and experience that even approach those of the IV team members in Kentucky.”
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Docket entry #135, at 20.6 Like Kentucky’s protocol, Arkansas’ requires that IV team members be certified or licensed EMT’s, nurses, physician assistants, or physicians. Furthermore, Kentucky’s protocol requires that IV team members have one year of professional experience, and Arkansas requires at least two years of professional experience. Despite these similarities, Plaintiffs assert that Arkansas’ protocol falls short because it contains no specific requirement that IV team members have experience placing and monitoring IV catheters.
In Taylor, the Eighth Circuit held that Missouri’s protocol adequately requires that trained medical personnel carry out each medial step of the lethal injection procedure. See Taylor, 487 F.3d at 1084. Similar to Arkansas’ protocol, Missouri’s requires that only a physician, nurse, or emergency medical technician insert intravenous lines, and it contains no specific training guidelines for members of the execution team. The Court finds that the absence of language requiring specific training and practice for members of the IV team does not render Arkansas’ execution procedure cruel and unusual. See Taylor, 487 F.3d at 1084(“Absent some specific disqualifying characteristic of the chosen medical personnel, we would be hard pressed to say that a physician, a trained nurse, or a licensed pharmacist is not qualified to mix the chemicals.”)
6. Facilities
6Plaintiffs also complain that the IV team is led and supervised by a less-than-qualified Deputy Director. Arkansas’ protocol charges the Deputy Director or his designee with several tasks, including monitoring the inmate’s lack of consciousness. However, the Deputy Director is not a member of the IV team. Additionally, the protocol requires that the “the Deputy Director, or the designee, shall be healthcare trained, educated, and/or experienced in matters related to the establishment and monitoring of IVs, the mixing and administration of lethal chemicals, and assessing the presence and assessing the presence or absence of consciousness.” (ADC Lethal Injection Procedure, Revised 05/22/08, Sec. I(1).)
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Plaintiffs contend that Arkansas’ execution chamber is “poorly designed and inadequately lit, and the physical apparatus used by the executioners to administer the lethal drugs is so likely to result in the drugs being administered in the wrong order and other errors as to render its use reckless.” Docket entry #135, at 22. Plaintiffs’ specific criticisms of the facilities are that the placement of the execution gurney will not enable executioners to see problems that develop in the IV infusion sites or any signs that the prisoner is inadequately anesthetized; the execution chamber is too small; the lighting in the injection room is dim, which hinders the executioner’s view of syringes; and the syringes are inadequately labeled.7
Plaintiffs provide no evidence that Arkansas’ execution facilities subject them to a substantial or objectively intolerable risk of serious harm. See Baze, 128 S. Ct. at 1537(stating that risks suggested by petitioners, such as improper mixing of chemicals, cannot remotely be characterized as “objectively intolerable”.) The Eighth Amendment does not require medically optimal facilities, and the Court finds that Arkansas’ protocol contains adequate safeguards that make up for the physical separation of the condemned inmate and the executioners and other alleged imperfections.
7. Monitoring of IV Infusion Sites Plaintiffs maintain that the current ADC protocol “allows for no monitoring of the IV sites during the execution because those sites, along with the rest of the inmate’s body with the exception of his head, are completely covered with a sheet for the duration of the process.” Docket entry #135, at 25. According to Plaintiffs, the protocol “fails to guarantee that the
7The written protocol provides that the syringes are labeled #1 through #8, denoting the order in which the syringes are administered. The protocol specifically requires that the mixed chemicals be transferred to the appropriate syringe as set forth in Section IV of the protocol.
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Deputy Director or designee will do anything more than occasionally lift the corner of the sheet to look at the IV sites, if that.” Id.
Contrary to Plaintiffs’ assertion, the protocol specifically instructs: “Throughout the lethal chemical infusion process, the Deputy Director, or designee, will closely monitor the infusion site for evidence of infiltrate, vein collapse, or other challenge to the patency of the infusion site.” (ADC Lethal Injection Procedure, Revised 05/22/08, Sec. III.2.i.).
In support of the charge that the Deputy Director will shirk his duty to closely monitor the infusion site, Plaintiffs submit a post-mortem photograph of Steven Hill, showing his lifeless body covered by a sheet. The Court finds that the photograph provides no evidence that Defendants will deviate from the monitoring procedures mandated by the written protocol. The Court finds that Arkansas’ requirement that the Deputy Director closely monitor the infusion site sufficiently addresses the risk of IV problems that might develop during the lethal injection procedure.8
8. Back-Up Plan Plaintiffs assert that the protocol presents a substantial risk that a terrible series of events will occur because it does not require a second dose of sodium thiopental “when the decision is made to redirect the flow to the backup IV site mid-execution.” Docket entry #135, at 27. Plaintiffs envision the following chain of events: If the prisoner receives enough of the drug to render him temporarily unconscious, the execution will appear to be going smoothly when Defendant Byus performs his rudimentary consciousness checks, although in fac t the dose that the inm ate has
8The Kentucky protocol approved in Baze provides that the warden and deputy warden will watch for signs of IV problems, including infiltration. See Baze, 128 S. Ct. 1534. Chief Justice Roberts noted that three experts had testified that identifying signs of infiltration would be very obvious even to the average person. Id..
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received is insufficient to achieve a surgical plane of anesthesia and to ensure that it is maintained through the duration of the execution. If the problem that has been developing with the IV site is thereaf ter discovered and the flow of the remaining two chemicals is diverted to the back up site, the prisoner will receive full doses of pancuronium bromide and potassium chloride following only a partial, inadequate dose of anesthesia. Docket entry #136, at 27. The record does not support a finding that the foregoing scenario is even possible. First, the written protocol provides that if the Deputy Director or his designee determines that the inmate remains conscious after the administration of sodium thiopental, the back-up syringes of sodium thiopental “shall be administered into the secondary or alternative IV line.” (ADC Lethal Injection Procedure, Revised 05/22/08, Sec. II.8.) Second, the protocol provides that if a problem is suspected with the primary IV site, the Deputy Director will direct reduction of the chemical flow rate or redirect “lethal chemical to the secondary or alternative site.” (ADC Lethal Injection Procedure, Revised 05/22/08, Sec. III.2.i(1)(emphasis added)). Chief Deputy Director Hobbs testifies: “The ADC interprets, understands, and intends for the term ‘lethal chemical’ to include the backup doses of the first lethal chemical [sodium thiopental], as well as the extra saline flush. Therefore, Section III.2.i(1) requires the back up syringes of sodium [thiopental] and saline flush to be administered before the administration of any remaining pancuronium bromide and potassium chloride.” Docket entry #140, Attach. In light of Hobbs’ testimony, the Court finds no support for Plaintiffs’ claim that “the protocol does not direct the administration of a second dose of anesthetic when the decision is made to redirect the flow to the backup IV site mid-execution.” In conclusion, the Court finds that Arkansas’ lethal injection protocol is substantially similar to the protocols approved in Taylor and Baze. The Court further finds that Plaintiffs
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have failed to come forward with evidence that Arkansas’ protocol for execution by lethal injection subjects them to a constitutionally significant risk of pain. Accordingly, Defendants are entitled to summary judgment.
IV. Given the Court’s decision that Defendants are entitled to summary judgment, Davis has no reasonable likelihood of success on the merits of his claim.9 Additionally, as previously stated, the Eighth Circuit has ruled that Davis unjustifiably delayed bringing his claim under § 1983, and that alone disqualifies him for a stay of execution. Accordingly, the Court will grant Defendants’ motion to lift the stay of execution of Davis’s death sentence. IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment (docket entry #128) is GRANTED. IT IS FURTHER ORDERED that Defendants’ motion to dissolve Don William Davis’s stay of execution (docket entry #131) is GRANTED. The stay of execution granted by the Eighth Circuit as to Plaintiff Jones and the stay of execution granted by Chief Judge Holmes as to Plaintiff Nooner are still in place.
9The factors to consider when deciding whether to grant or deny a motion for a preliminary injunction include: (1) the threat of irreparable harm to the movant; (2) the state of the balance between the movant’s harm and the injury that granting the injunction will inflict on other parties involved in the litigation; (3) the probability the movant will succeed on the merits; and (4) the public interest. See Dataphase Sys., Inc. v. CL Sys., 640 F.2d 109, 113 (8th Cir. 1981). Additionally, a court considering a stay of execution must apply “‘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 an entry of a stay.’” Hill v. McDonough, 126 S. Ct. at 2104(quoting Nelson v. Campbell, 124 S. Ct. 2117, 2126 (2004)).
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Case 5:06-cv-00110-SWW Document 142 Filed 08/05/08 Page 29 of 29 IT IS SO ORDERED THIS 5TH DAY OF AUGUST, 2008.
/s/Susan Webber Wright UNITED STATES DISTRICT JUDGE
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 Appellate Case: 08-2978 Page: 1 Date Filed: 11/08/2010 Entry ID: 3722755 Case 5:06-cv-00110-SWW Document 161 Filed 11/10/10 Page 1 of 3

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

MEMORANDUM

TO:

Mr. Jim McCormack

FROM:

Michael E. Gans, Clerk of Court

DATE:

November 10, 2010

RE:

08-2978 Terrick Nooner, et al v. Larry Norris, et al

District Court/Agency Case Number(s): 5:06-cv-00110-SWW 5:07-cv-00173-SWW

_____________________________________________________________________________

Enclosed is a letter received from the United States Supreme Court stating that an order has been filed denying certiorari in the above case.

SRD

Appellate Case: 08-2978 Page: 1 Date Filed: 11/08/2010 Entry ID: 3722755 Case 5:06-cv-00110-SWW Document 161 Filed 11/10/10 Page 2 of 3

Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

November 8, 2010

William K. Suter Clerk of the Court (202) 479-3011

Clerk United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton Courthouse 111 S. 10th Street, Rm. 24329 St. Louis, MO 63102

Re: Terrick Terrell Nooner, et al. v. Ray Hobbs, Director, Arkansas Department of Correction No. 10-6263 (Your No. 08-2978)

Dear Clerk: The Court today entered the following order in the above-entitled case: The petition for a writ of certiorari is denied.

Sincerely, William K. Suter, Clerk

08-2978 Terrick Nooner, et al v. Larry Norris, et al "Supreme Court Order"

Page 1 of 1

Case 5:06-cv-00110-SWW Document 161 Filed 11/10/10 Page 3 of 3

08-2978 Terrick Nooner, et al v. Larry Norris, et al "Supreme Court Order" 8cc-cmecf-nda to:
11/10/2010 09:49 AM Show Details
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.
Eighth Circuit Court of Appeals
Notice of Docket Activity
The following transaction was entered on 11/10/2010 at 9:48:41 AM CST and filed on 11/08/2010 Case Name: Terrick Nooner, et al v. Larry Norris, et al Case Number: 08-2978 Document(s): Document(s)
Docket Text: SUPREME COURT order filed denying cert petition. Order filed on 11/08/2010 in case No.09-10120. [3722755] [08-2978] (SRD)
The following document(s) are associated with this transaction: Document Description: sc order Original Filename: Circ8_08-2978.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=11/08/2010] [FileNumber=3722755-0] [a7df319268911ee0248842f6532cc955a0697c6117ffbe763fc4deef2e9643bf9645d75c540975f76898648060e80ce62448037ed9436f2846f562bd003b6e2e]]
Document Description: DC Memo Cert Denied Original Filename: /opt/ACECF/live/forms/sduenow_082978_3722755_DCMemoCertDenied_363.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=11/08/2010] [FileNumber=3722755-1] [c89d21e5b4fba7cc99b2aa442cf41b61bf52a9143804d3a2dcd9e1ad7d8f5646294fcb316541710c56c35f440a9827c0966e75d19ab5b100f8ef14eb79dcc8f5]] Recipients:
z Mr. McCormack, Jim, Clerk of Court

Notice will be electronically mailed to: Mr. McCormack, Jim, Clerk of Court: ared_appeals@ared.uscourts.gov
The following information is for the use of court personnel:
DOCKET ENTRY ID: 3722755 RELIEF(S) DOCKETED: DOCKET PART(S) ADDED: 4255883, 4255884

file://C:\Documents and Settings\dacoll\Local Settings\Temp\notes333CFD\~web1624.htm 11/10/2010

 
 Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 1 of 14
CLOSED, LEAD
U.S. District Court Eastern District of Arkansas (Pine Bluff) CIVIL DOCKET FOR CASE #: 5:06−cv−00110−SWW

Nooner v. Norris et al Assigned to: Judge Susan Webber Wright Member case: (View Member Case) Case in other court: USCA8, 06−02748
USCA8, 07−03165 USCA8, 07−03167 USCA8, 08−02978 Cause: 42:1983 Prisoner Civil Rights Plaintiff
Terrick Terrell Nooner

Date Filed: 05/01/2006 Date Terminated: 08/05/2008 Jury Demand: None Nature of Suit: 555 Prison Condition: Civil Rights Jurisdiction: Federal Question
represented by Julie C. Brain Federal Public Defenders Office − Wilmington 800 King Street Suite 200 Wilmington, DE 19801 302−573−6010 ext 252 Email: julie_brain@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Consol Plaintiff Frank Williams, Jr

represented by Julie C. Brain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Don William Davis ADC #SK−920
Intervenor Plaintiff Jack Harold Jones, Jr

represented by Deborah Ruth Sallings Arkansas Public Defender Commission − Little Rock 101 East Capitol Avenue Suite 201 Little Rock, AR 72201 501−682−9070 Email: deborahsallings@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
E. Alvin Schay Attorney At Law 8200 Linda Lane Little Rock, AR 72227 501−319−7938 Email: aschay@msn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 2 of 14
Dale E. Adams Montgomery, Adams &Wyatt, PLC 308 East 8th Street Little Rock, AR 72202 501−371−9816 Fax: 501−375−7943 Email: dadams@mawplc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey M. Rosenzweig Attorney at Law 300 Spring Building Suite 310 Little Rock, AR 72201−2421 501−372−5247 Email: jrosenzweig@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Larry Norris in his official capacity as Director, Arkansas Department of Correction

represented by Joseph V. Svoboda Attorney at Law Post Office Box 554 Carlisle, AR 72024 870−552−3436 Fax: 870−552−3677 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Arnold Hagemeier UAMS Office of General Counsel 4301 West Markham Street Slot #860 Little Rock, AR 72205−7199 501−686−7608 Fax: 501−686−7736 Email: MHagemeier@uams.edu TERMINATED: 01/04/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
C. Joseph Cordi , Jr. Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 (501) 682−1317 Email: joe.cordi@arkansasag.gov ATTORNEY TO BE NOTICED
Kelly K. Hill Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 (501) 682−8068 Email: kelly.hill@arkansasag.gov ATTORNEY TO BE NOTICED

Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 3 of 14

Defendant Gaylon Lay in his official capacity as Warden, Arkansas Department of Correction, Cummins Unit
Defendant Wendy Kelly in her official capacity as Deputy Director for Health and Correctional Programs, Arkansas Department of Correction
Defendant John Byus in his official capacity as Administrator, Correctional Medical Services, Arkansas Department of Correction

represented by C. Joseph Cordi , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph V. Svoboda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Arnold Hagemeier (See above for address) TERMINATED: 01/04/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Hill (See above for address) ATTORNEY TO BE NOTICED
represented by C. Joseph Cordi , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph V. Svoboda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Arnold Hagemeier (See above for address) TERMINATED: 01/04/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Hill (See above for address) ATTORNEY TO BE NOTICED
represented by C. Joseph Cordi , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph V. Svoboda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Arnold Hagemeier (See above for address) TERMINATED: 01/04/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Hill (See above for address) ATTORNEY TO BE NOTICED

Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 4 of 14

Defendant
Does 1−50, unknown executioners, in their official capacities as employees and/or agents of the Arkansas Department of Correction

represented by C. Joseph Cordi , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph V. Svoboda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Arnold Hagemeier (See above for address) TERMINATED: 01/04/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Hill (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/01/2006 05/01/2006 05/04/2006 05/05/2006
05/05/2006 05/05/2006 05/05/2006 05/05/2006 05/05/2006 05/08/2006
05/08/2006 05/15/2006 05/15/2006
05/15/2006

# Docket Text
1 COMPLAINT against all defendants filed by Terrick Terrell Nooner; summonses issued and returned to counsel(jap) (Entered: 05/02/2006)
2 APPLICATION for Leave to Appear purs to Local Rule 83.5(d) by Julie Brain (jap) (Entered: 05/02/2006)
3 MOTION to Intervene by Don William Davis. (vjt) (Entered: 05/05/2006)
4 SUMMONS Returned Executed. John Byus served on 5/3/2006, answer due 5/23/2006. (bkp, ) (MODIFICATION: Docket text modified on 5/8/2006 to correct the name of the party served.) (thd) (Entered: 05/08/2006)
5 SUMMONS Returned Executed. Larry Norris served on 5/3/2006, answer due 5/23/2006. (bkp, ) (Entered: 05/08/2006)
6 SUMMONS Returned Executed. Gaylon Lay served on 5/4/2006, answer due 5/24/2006. (bkp, ) (Entered: 05/08/2006)
7 SUMMONS Returned Executed. Wendy Kelly served on 5/3/2006, answer due 5/23/2006. (bkp, ) (Entered: 05/08/2006)
Set/Reset Deadlines: John Byus answer due 5/23/2006. (bfw) (Entered: 05/08/2006)
***Answer Deadline set for Terrick Nooner terminated. (bfw) (Entered: 05/08/2006)
NOTICE OF DOCKET CORRECTION re: 4 Summons Returned Executed. CORRECTION: Docket text modified to reflect the correct party served as Defendant John Byus. (thd) (Entered: 05/08/2006)
8 CERTIFICATE OF MAILING by the Clerk re Notice of Docket Correction. (thd) (Entered: 05/08/2006)
9 RESPONSE to Motion re 3 MOTION to Intervene filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does. (Svoboda, Joseph) (Entered: 05/15/2006)
10 Notice of Appearance by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does. (Hagemeier, Mark) (Modified entry on 5/16/2006 to correct text − incorrectly filed as a motion) (bfw). (Entered: 05/15/2006)
***Attorney Mark Arnold Hagemeier for Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, and all other unnamed employees and agents of the Arkansas

Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 5 of 14

05/15/2006 05/16/2006 05/17/2006 05/17/2006 05/19/2006 05/19/2006 05/26/2006 05/26/2006 05/30/2006 05/30/2006 05/31/2006 05/31/2006 06/02/2006 06/12/2006
06/12/2006

Department of Correction added. (bfw) (Entered: 05/16/2006)
***Motions terminated: 10 MOTION for Leave to Appear Notice of Appearance filed by John Byus, Gaylon Lay, Larry Norris, Does, Wendy Kelly. (Entry was incorrectly filed as a Motion instead of Notice of Appearance) (bfw) (Entered: 05/16/2006)
NOTICE OF DOCKET CORRECTION: 10 MOTION for Leave to Appear Notice of Appearance − (modified entry incorrectly filed as a motion to correct text to Notice of Appearance) (bfw) (Entered: 05/16/2006)
11 ORDER directing plaintiff to, within 30 days of the entry date of this order, submit either an application requesting leave to proceed ifp or the $350 filing fee in full; and granting 2 Motion for Leave to Appear of Julie Brain. Signed by Judge John F. Forster Jr. on 5/17/06. (bkp, ) (Entered: 05/17/2006)
12 CERTIFICATE OF MAILING by the Clerk re 11 Order on Motion for Leave to Appear, (bkp, ) (Entered: 05/17/2006)
13 MOTION to Dismiss by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does. (Svoboda, Joseph) (Entered: 05/19/2006)
14 BRIEF IN SUPPORT filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does re 1 Complaint Brief in Support of Motion to Dismiss. (Svoboda, Joseph) (Entered: 05/19/2006)
15 ORDER re 3 Motion to Intervene, Don William Davis is hereby granted leave to intervene as a plaintiff in this action . Signed by Judge Susan Webber Wright on 5/26/06. (vjt) (Entered: 05/26/2006)
16 CERTIFICATE OF MAILING by the Clerk re 15 Order on Motion to Intervene (vjt) (Entered: 05/26/2006)
17 ORDER that the referral to the Magistrate Judge in this matter should be terminated. Signed by Judge Susan Webber Wright on 5/30/06. (vjt) (Entered: 05/31/2006)
Judge John F. Forster, Jr no longer assigned to case per Order 17 . (vjt) (Entered: 05/31/2006)
18 CERTIFICATE OF MAILING by the Clerk re 17 Order (vjt) (Entered: 05/31/2006)
19 MOTION for Leave to Proceed in forma pauperis by Terrick Terrell Nooner. (Brain, Julie) (Entered: 05/31/2006)
20 RESPONSE in Opposition re 13 MOTION to Dismiss filed by Terrick Terrell Nooner. (Brain, Julie) (Entered: 06/02/2006)
21 MOTION for Preliminary Injunction by Don William Davis. (Attachments: # 1 Exhibit 1−ADC Admn Directive 96−06# 2 Exhibit 2−Newspaper article 3−5−83 "Pharmacy Dean resents role"# 3 Exhibit 3−Newspaper Article 3−12−83 "May Not Sign Injection Bill"# 4 Exhibit 4−Newspaper article 5−15−83 "Sponsor Recalls Lethal Injection Bill"# 5 Exhibit Newspaper Article 3−26−83 Clinton Signs Injection Bill# 6 Exhibit 6A# 7 Exhibit 6−B# 8 Exhibit 6−C# 9 Exhibit 6−D# 10 Exhibit 7# 11 Exhibit 8# 12 Exhibit 9# 13 Exhibit 10# 14 Exhibit 11# 15 Exhibit 12# 16 Exhibit 13# 17 Exhibit 14# 18 Exhibit 15# 19 Exhibit 16# 20 Exhibit 17# 21 Exhibit 18# 22 Exhibit 19# 23 Exhibit 20# 24 Exhibit 21# 25 Exhibit 22# 26 Exhibit 23# 27 Exhibit 24# 28 Exhibit 25# 29 Exhibit 26# 30 Errata 27# 31 Exhibit 28# 32 Exhibit 29# 33 Exhibit 30# 34 Exhibit 31# 35 Exhibit 32# 36 Exhibit 33# 37 Exhibit 34# 38 Exhibit 35# 39 Exhibit 36# 40 Exhibit 37# 41 Exhibit 38# 42 Exhibit 39# 43 Exhibit 40# 44 Exhibit 41# 45 Exhibit 42# 46 Exhibit 43# 47 Exhibit 44# 48 Exhibit 45# 49 Exhibit 46# 50 Exhibit 47# 51 Exhibit 48# 52 Exhibit 49# 53 Exhibit INDEX)(Schay, E.) (Entered: 06/12/2006)
22 MOTION for Leave to Proceed in forma pauperis filed by Don William Davis. (pag, )(copy mailed) (Entered: 06/13/2006)

Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 6 of 14

06/14/2006 06/19/2006 06/19/2006 06/19/2006
06/20/2006
06/22/2006 06/26/2006
06/26/2006 06/27/2006 06/27/2006 06/30/2006 06/30/2006 06/30/2006 06/30/2006 06/30/2006 07/05/2006 08/08/2006 08/08/2006 11/22/2006

23 RESPONSE in Opposition re 13 MOTION to Dismiss filed by Terrick Terrell Nooner. (Brain, Julie) (Entered: 06/14/2006)
24 ORDER denying 13 Defts' Motion to Dismiss . Signed by Judge Susan Webber Wright on 6/19/06. (vjt) (Entered: 06/19/2006)
25 CERTIFICATE OF MAILING by the Clerk re 24 Order on Motion to Dismiss (vjt) (Entered: 06/19/2006)
26 ORDER Directing Monthly Payments be made from Prison Accounts of Terrick Nooner and Don William Davis until the $350 filing fee is paid in full; granting motions for leave to proceed ifp 19 22 ; the Court assesses an initial partial filing fee of $11.87 for Nooner and $75.74 for Davis. Signed by Judge Susan Webber Wright on 6/19/06. (vjt) (Entered: 06/20/2006)
27 CERTIFICATE OF MAILING by the Clerk re 26 Order Directing Prisoner Payment, Terminate Motions (copy of Order forwarded to Warden−Varner Supermax, ADC Compliance Office and ADC Trust Fund Office) (vjt) (Entered: 06/20/2006)
28 RESPONSE to Motion re 21 MOTION for Preliminary Injunction filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does. (Attachments: # 1 Defendant's Exhibit A)(Svoboda, Joseph) (Entered: 06/22/2006)
29 ORDER granting 21 Davis's motion for preliminary injunction; IT IS HEREBY ORDERED that the State of Arkansas is STAYED from implementing an order for the execution of Don William Davis until further notice from this Court; the Court will attempt to set an expedited hearing, depending on the schedules of the involved parties. Signed by Judge Susan Webber Wright on 6/26/06. (vjt) (Entered: 06/26/2006)
30 CERTIFICATE OF MAILING by the Clerk re 29 Order on Motion for Preliminary Injunction (vjt) (Entered: 06/26/2006)
31 NOTICE OF AMENDMENT AND CORRECTION TO ORDER 29 ENTERED June 26, 2006, the footnote contains an error. (vjt) (Entered: 06/27/2006)
32 CERTIFICATE OF MAILING by the Clerk re 31 Notice of Amendment and Correction (vjt) (Entered: 06/27/2006)
33 NOTICE OF APPEAL as to 29 Order on Motion for Preliminary Injunction, by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does. Filing fee $ 455, receipt number 001369. (dac, ) (Entered: 06/30/2006)
34 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 33 Notice of Appeal, 29 Order on Motion for Preliminary Injunction. (dac, ) (Entered: 06/30/2006)
*** COA BATCH RECEIPT of Notice of Appeal and related supporting documents sent on: Fri Jun 30 13:27:46 CDT 2006 (dac, ) (Entered: 06/30/2006)
35 CERTIFICATE OF MAILING by the Clerk re 33 Notice of Appeal, 34 Notification of Appeal and NOA Supplement (dac, ) (Entered: 06/30/2006)
36 USCA Docketing Letter as to 33 Notice of Appeal filed by John Byus, Gaylon Lay, Larry Norris, Does, Wendy Kelly. USCA Case Number 06−2748 (dac, ) (Entered: 06/30/2006)
37 ANSWER to Complaint by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does.(Svoboda, Joseph) (Entered: 07/05/2006)
38 ORDER advising pltf Nooner that if he wishes to pursue claims in addition to those at issue in this action, he must file a separate lawsuit. Signed by Judge Susan Webber Wright on 8/8/06. (vjt) (Entered: 08/08/2006)
39 CERTIFICATE OF MAILING by the Clerk re 38 Order (vjt) (Entered: 08/08/2006)
***Party Jack Harold Jones, Jr rep by Dale E. Adams &Jeffrey M. Rosenzweig added. (smb) (Entered: 11/22/2006)

Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 7 of 14

11/22/2006 11/29/2006 12/01/2006 12/01/2006 12/01/2006 12/13/2006 12/13/2006 12/14/2006
12/15/2006
12/15/2006 12/15/2006 12/18/2006 01/02/2007 01/03/2007 01/04/2007 01/04/2007
01/04/2007 03/27/2007 03/27/2007
04/05/2007

40 MOTION to Intervene by Jack Harold Jones, Jr. (smb) (Entered: 11/22/2006)
41 RESPONSE to Motion re 40 MOTION to Intervene filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does. (Svoboda, Joseph) (Entered: 11/29/2006)
***Party Jack Harold Jones, Jr rep by Dale E. Adams, Jeffrey M. Rosenzweig added. Party Jack Harold Jones, Jr terminated. (dac, ) (Entered: 12/01/2006)
42 ORDER granting 40 Motion to Intervene of Jack Harold Jones, Jr. Signed by Judge Susan Webber Wright on 12/1/06. (dac, ) (Entered: 12/01/2006)
43 CERTIFICATE OF MAILING by the Clerk re 42 Order on Motion to Intervene (dac, ) (Entered: 12/01/2006)
44 ORDER, Clerk is directed to return to Plaintiff Nooner without docketing his "Motion of Amended Civil Action". Signed by Judge Susan Webber Wright on 12/13/06. (dac, ) (Entered: 12/13/2006)
45 CERTIFICATE OF MAILING by the Clerk re 44 Order (dac, ) (Entered: 12/13/2006)
46 MOTION (pro se) of Voluntary Dismissal by Terrick Terrell Nooner. (dac, ) (Modified entry on 12/15/2006 to attach correct document − motion &notice combined as one document at the direction of chambers) (bfw). (Entered: 12/15/2006)
47 NOTICE OF DOCKET CORRECTION: 46 MOTION to Dismiss − (modified entry to attach correct document; motion &notice combined at the direction of chambers) (copy of document attached hereto for service on counsel) (bfw) (Entered: 12/15/2006)
48 CERTIFICATE OF MAILING by the Clerk re 47 Notice of Docket Correction, 46 MOTION to Dismiss (dac, ) (Entered: 12/15/2006)
49 ORDER Julie Brian, FPD is directed to respond within 15 days from the entry date of this order to Nooner's 46 Motion to Dismiss . Signed by Judge Susan Webber Wright on 12/15/06 (dac, ) (Entered: 12/18/2006)
50 CERTIFICATE OF MAILING by the Clerk re 49 Order on Motion to Dismiss (dac, ) (Entered: 12/18/2006)
51 MOTION to Substitute Attorney C. Joseph Cordi, Jr., in place of Mark Hagemeier by all Defendants by Larry Norris. (Cordi, C.) (Entered: 01/02/2007)
52 RESPONSE to Motion re 46 MOTION to Dismiss filed by Terrick Terrell Nooner. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Brain, Julie) (Entered: 01/03/2007)
***Set/Clear Flags (pag, ) (Entered: 01/04/2007)
53 ORDER granting 51 Motion to Substitute Attorney. Added attorney C. Joseph Cordi, Jr for Gaylon Lay and Wendy Kelly. Attorney Mark Arnold Hagemeier terminated . Signed by Judge Susan Webber Wright on 1/4/07. (dac, ) (Entered: 01/04/2007)
54 CERTIFICATE OF MAILING by the Clerk re 53 Order on Motion to Substitute Attorney (dac, ) (Entered: 01/04/2007)
55 AMENDED MOTION to Voluntary Dismiss by Terrick Terrell Nooner (copy mailed) (dac) (Entered: 03/27/2007)
57 ORDER, defendant's counsel is directed to file a response to Nooner's 46 motion for voluntary dismissal and Nooner's 55 amended motion for voluntary dismissal within 15 days from the entry date of this order. Signed by Judge Susan Webber Wright on 3/27/07. (dac) (Entered: 03/27/2007)
59 AMENDMENT TO MOTION to Dismiss by Terrick Terrell Nooner (dac) (Entered: 04/05/2007)

Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 8 of 14

04/11/2007 04/18/2007 05/07/2007 07/09/2007
07/09/2007
07/10/2007 07/11/2007 07/11/2007 07/12/2007 07/16/2007
07/17/2007 07/17/2007
07/17/2007 07/17/2007
07/17/2007
07/23/2007 07/23/2007

61 RESPONSE to Motion re 46 MOTION to Dismiss, 55 MOTION to Dismiss, 59 MOTION to Dismiss filed by Larry Norris. (Cordi, C.) (Entered: 04/11/2007)
62 REPLY to Response to Motion re 59 MOTION to Dismiss Pro Se Filings filed by Terrick Terrell Nooner. (Brain, Julie) (Entered: 04/18/2007)
63 ORDER denying 46 Motion to Dismiss 55 Motion to Dismiss 59 Motion to Dismiss. Signed by Judge Susan Webber Wright on 5/7/07. (dac) (Entered: 05/07/2007)
65 OPINION of USCA, because the district court failed to apply the correct legal standard, we reverse the district court's grant of a preliminary injunction, and we vacate the stay of execution it issued in this case, as to 33 Notice of Appeal filed by Does, Larry Norris, Wendy Kelly, Gaylon Lay, John Byus. (dac) (Entered: 07/09/2007)
66 USCA JUDGMENT as to 33 Notice of Appeal filed by Does, Larry Norris, Wendy Kelly, Gaylon Lay, John Byus. Judgment of the district court is reversed and the stay of execution is vacated in accordance with the opinion of this court (dac) (Entered: 07/09/2007)
67 MOTION for Discovery Expedited by Terrick Terrell Nooner (Brain, Julie) (Entered: 07/10/2007)
68 MOTION to Shorten Time for Response to Motion for Expedited Discovery by Terrick Terrell Nooner (Brain, Julie) (Entered: 07/11/2007)
69 RESPONSE to Motion re 68 MOTION to Shorten Time for Response to Motion for Expedited Discovery filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus. (Cordi, C.) (Entered: 07/11/2007)
70 Amended MOTION for Discovery Expedited by Terrick Terrell Nooner (Brain, Julie) (Entered: 07/12/2007)
71 ORDER granting in part 68 Motion to Shorten Time for Defendants' to Respond to Motion for Expedited Discovery. Defendants have up to and including 7/17/07 to file a response.Signed by Judge Susan Webber Wright on 7/16/07. (dac) (Entered: 07/16/2007)
73 MOTION for Summary Judgment by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus (Cordi, C.) (Entered: 07/17/2007)
74 STATEMENT OF FACTS (Local Rule 56.1) re 73 Motion for Summary Judgment filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus. (Attachments: # 1 Declaration of Larry Norris# 2 Exhibit A to Declaration of Larry Norris# 3 Declaration of Dr. Mark Dershwitz)(Cordi, C.) (Entered: 07/17/2007)
75 BRIEF IN SUPPORT filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus re 73 Motion for Summary Judgment (Cordi, C.) (Entered: 07/17/2007)
76 RESPONSE to Motion re 67 MOTION for Discovery Expedited, 70 Amended MOTION for Discovery Expedited filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus. (Attachments: # 1 Exhibit A, Nooner's Request for Production of Documents# 2 Exhibit B, Nooner's Interrogatories to Defendants)(Cordi, C.) (Entered: 07/17/2007)
77 DECLARATION (Substituted) of Larry Norris bearing his signature by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus. re 74 Statement of Facts (Local Rule 56.1), Statement of Facts (Local Rule 56.1) filed by Larry Norris, Wendy Kelly, Gaylon Lay, John Byus (Cordi, C.) (Entered: 07/17/2007)
78 MOTION to Consolidate Cases by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus (Attachments: # 1 Notice of Related Case Filed in Williams v. Norris, 5:07cv173 WRW/HDY)(Cordi, C.) (Entered: 07/23/2007)
79 BRIEF IN SUPPORT filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus re 78 Motion to Consolidate Cases (Cordi, C.) (Entered: 07/23/2007)

Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 9 of 14

07/30/2007 07/30/2007 07/31/2007 08/01/2007 08/03/2007 08/03/2007 08/06/2007 08/08/2007 08/09/2007
08/22/2007 08/22/2007 08/28/2007 09/04/2007 09/11/2007 09/13/2007 09/18/2007 09/19/2007 09/19/2007

80 RESPONSE in Opposition re 73 MOTION for Summary Judgment filed by Terrick Terrell Nooner. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Brain, Julie) (Entered: 07/30/2007)
81 STATEMENT OF FACTS (Local Rule 56.1) re 80 Response in Opposition to Motion For Summary Judgment filed by Terrick Terrell Nooner. (Attachments: # 1 Exhibit Index)(Brain, Julie) (Entered: 07/30/2007)
82 EXHIBITS 1 − 50 to 81 Statement of Facts (Local Rule 56.1) filed by plaintiffs. (available in 2 spiral binders, PAPER FORMAT ONLY) (dac) (Entered: 07/31/2007)
83 REPLY to Response to Motion re 67 MOTION for Discovery Expedited filed by Terrick Terrell Nooner. (Brain, Julie) (Entered: 08/01/2007)
84 RESPONSE in Opposition re 78 MOTION to Consolidate Cases By Frank Williams filed by Terrick Terrell Nooner. (Brain, Julie) (Entered: 08/03/2007)
85 REPLY to Response to Motion re 73 MOTION for Summary Judgment filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus. (Cordi, C.) (Entered: 08/03/2007)
86 NOTICE of Appearance by Kelly K. Hill on behalf of all defendants (Hill, Kelly) (Entered: 08/06/2007)
87 MOTION for Preliminary Injunction or Stay of Execution by Terrick Terrell Nooner (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Brain, Julie) (Entered: 08/08/2007)
88 ORDER DENYING 67 70 Motion for Discovery; GRANTING 78 Motion to Consolidate Cases. The Clerk of the Court is directed to consolidate Williams v. Norris, 5:07cv00173 WRW with this case, Nooner v. Norris, 5:06cv00110 SWW. The parties are advised that all future motions, pleadings, orders and other filings in the consolidated cases will be filed in the LEAD CASE, 5:06CV00110. Signed by Judge Susan Webber Wright on 8/9/07. (dac) (Entered: 08/09/2007)
89 MOTION for Order to Cease Collecting Filing Fee and to Remit Fee Already Collected by Frank Williams by Terrick Terrell Nooner (Brain, Julie) (Entered: 08/22/2007)
90 RESPONSE in Opposition re 87 MOTION for Preliminary Injunction or Stay of Execution filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus. (Cordi, C.) (Entered: 08/22/2007)
91 REPLY to Response to Motion re 87 MOTION for Preliminary Injunction or Stay of Execution filed by Terrick Terrell Nooner. (Brain, Julie) (Entered: 08/28/2007)
92 MOTION to Stay Execution or for Preliminary Injunction by Jack Harold Jones, Jr (Rosenzweig, Jeffrey) (Entered: 09/04/2007)
93 ORDER denying 87 Motion for Preliminary Injunction; denying 92 Motion to Stay. Signed by Judge Susan Webber Wright on 9/11/07. (dac) (Entered: 09/12/2007)
94 ORDER of USCA the petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied as to 33 Notice of Appeal filed by Does, Larry Norris, Wendy Kelly, Gaylon Lay, John Byus (dac) (Entered: 09/13/2007)
95 NOTICE OF APPEAL as to 93 Order on Motion for Preliminary Injunction, Order on Motion to Stay by Jack Harold Jones, Jr. (Rosenzweig, Jeffrey) (Entered: 09/18/2007)
96 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 95 Notice of Appeal, 93 Order on Motion for Preliminary Injunction, Order on Motion to Stay. (dac) (Entered: 09/19/2007)
97 NOTICE OF APPEAL as to 93 Order on Motion for Preliminary Injunction, Order on Motion to Stay by Terrick Terrell Nooner. (Brain, Julie) (Entered: 09/19/2007)

Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 10 of 14

09/19/2007 09/19/2007 09/19/2007 09/19/2007 09/20/2007 09/20/2007 09/20/2007 09/20/2007 09/20/2007 09/25/2007 09/25/2007
10/08/2007 10/09/2007
10/09/2007 10/11/2007 10/16/2007 10/22/2007 10/29/2007 10/30/2007

*** COA BATCH RECEIPT of Notice of Appeal and related supporting documents sent on: Wed Sep 19 12:17:42 CDT 2007 (COA3, ) (Entered: 09/19/2007)
98 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 97 Notice of Appeal, 93 Order on Motion for Preliminary Injunction, Order on Motion to Stay. (dac) (Entered: 09/19/2007)
99 ORDER of USCA appellant's motion to stay the mandate is denied as to 33 Notice of Appeal filed by Does, Larry Norris, Wendy Kelly, Gaylon Lay, John Byus (dac) (Entered: 09/19/2007)
*** COA BATCH RECEIPT of Notice of Appeal and related supporting documents sent on: Wed Sep 19 13:43:56 CDT 2007 (COA3, ) (Entered: 09/19/2007)
100 MANDATE of USCA in accordance with the opinion and judgment of 7/9/07 as to 33 Notice of Appeal filed by Does, Larry Norris, Wendy Kelly, Gaylon Lay, John Byus (dac) (Entered: 09/20/2007)
101 MOTION For Nunc Pro Tunc Appointment of Counsel by Don William Davis (dac) (Entered: 09/20/2007)
102 USCA Docketing Letter as to 95 Notice of Appeal filed by Jack Harold Jones, Jr. USCA Case Number 07−3165 (dac) (Entered: 09/20/2007)
103 ORDER of USCA case is remanded to the district court for calculation and collection of appellate filing fees pursuant to Henderson v. Norris as to 95 Notice of Appeal filed by Jack Harold Jones, Jr (dac) (Entered: 09/20/2007)
104 USCA Docketing Letter as to 97 Notice of Appeal filed by Terrick Terrell Nooner. USCA Case Number 07−3167 (dac) (Entered: 09/20/2007)
105 USCA Docketing Letter as to 97 Notice of Appeal filed by Terrick Terrell Nooner. USCA Case Number 07−3167 (dac) (Entered: 09/25/2007)
106 ORDER plaintiff Jones has until 10/18/07 to submit the $455 appellate filing fee in full or submit a completed application to proceed on appeal in forma pauperis with calculation sheet. The Clerk is directed to send plaintiff an in forma pauperis application and calculation sheet, re 103 USCA Order Signed by Judge Susan Webber Wright on 9/25/07. (dac) (Entered: 09/25/2007)
108 FINANCIAL AFFIDAVIT by Jack Harold Jones, Jr (Adams, Dale) (Entered: 10/08/2007)
109 ORDER Directing Monthly Payments be made from Prison Account of Jack Harold Jones until the $455 appellate docketing and filing fees have been paid, re. 108 . Signed by Judge Susan Webber Wright on 10/9/07. (dac) (Entered: 10/09/2007)
*** COA BATCH RECEIPT of 109 Order and related supporting documents sent on: Tue Oct 9 14:44:01 CDT 2007 (Collins, Doris) (Entered: 10/09/2007)
111 ORDER of USCA as to 95 Notice of Appeal filed by Jack Harold Jones, Jr. finding that Appellant Jack Harold Jones's motion for stay of execution is granted. (thd) (Entered: 10/12/2007)
112 ORDER U S Supreme Court, the application to vacate the stay of execution of sentence of death entered by the U. S. Court of Appeals for the Eighth Circuit on 10/11/07 is DENIED (dac) (Entered: 10/17/2007)
113 MOTION to Stay Execution by Don William Davis (Schay, E.) (Entered: 10/22/2007)
114 RESPONSE in Opposition re 113 MOTION to Stay Execution of Intervenor−Plaintiff Don Davis filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus. (Cordi, C.) (Entered: 10/29/2007)
115 ORDER granting 101 Motion to Appoint Counsel E. Alvin Schay for Don William Davis nunc pro tunc to 5/26/06. Signed by Judge Susan Webber Wright on

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10/30/2007 10/30/2007 11/08/2007
11/09/2007
12/05/2007 12/12/2007 12/20/2007 01/18/2008 02/26/2008 05/15/2008 05/21/2008
06/04/2008 06/04/2008 06/04/2008
06/04/2008 06/04/2008

10/30/07. (dac) (Entered: 10/31/2007)
116 ORDER granting 113 Motion to Stay as to Intervenor Don William Davis. Signed by Judge Susan Webber Wright on 10/30/07. (dac) (Entered: 10/31/2007)
120 CJA 30: Appointment of Attorney E. Alvin Schay for Don William Davis in Death Penalty Proceedings. Signed by Judge Susan Webber Wright on 10/30/07. (dac) (Entered: 11/13/2007)
117 ORDER granting 89 Motion for Order to be relieved of paying two filing fees. The ADC or his designee or any future custodian is directed that only a single filing fee of $350 is required for the consolidated cases Nooner v. Norris, No. 5:06cv00110 and Williams v. Norris No. 5:07cv00173. Any payments that have been collected from Williams's inmate trust account and forwarded to the Clerk toward payment of the filing fee in Williams v. Norris, No. 5:07cv00173 should be credited toward the single, $350 filing fee obligation in the consolidated cases. Signed by Judge Susan Webber Wright on 11/8/07. (dac) (Entered: 11/08/2007)
119 ORDER STAYING CASE, pending the Supreme Court's decision in Baze v. Rees. The Clerk is directed to administratively terminate this case. It is Further Ordered that Plaintiffs shall have 30 days following a final decision by the Supreme Court in Baze in which to file a motion to reopen this case. Denying Without Prejudice 73 MOTION for Summary Judgment filed by Larry Norris, Gaylon Lay, John Byus. Signed by Judge Susan Webber Wright on 11/9/07. (dac) (Entered: 11/09/2007)
121 Letter from Jack Jones (copy mailed) (dac) (Entered: 12/05/2007)
Docket Note: The filing fee of $350.00 has been received and satisfied in full by the Plaintiff. (thd) (Entered: 12/12/2007)
122 Letter from USCA8 Clerk, petition for a writ of certiorari was filed in the U. S. Supreme Court on 12/11/07 and placed on the docket 12/14/07 as No. 07−8195 (dac) (Entered: 12/20/2007)
123 ORDER denying without prejudice 10 defendants' motion to dismisss or, alternatively, for summary judgment, case no. 5:07cv00173). Signed by Judge Susan Webber Wright on 1/18/08. (dac) (Entered: 01/18/2008)
124 Letter from USCA Clerk, petition for a writ of certiorari is denied by the U S Supreme Court, case no 07−8195 (dac) (Entered: 02/26/2008)
125 MOTION to Reopen Case and for Issuance of Initial Scheduling Order by Terrick Terrell Nooner (Brain, Julie) (Entered: 05/15/2008)
126 ORDER REOPENING CASE, granting in part Pltfs' 125 MOTION to Reopen Case and for Issuance of Initial Scheduling Order; finding that a response from Defts is necessary before a decision can be made re Pltfs' request for a scheduling order. Signed by Judge Susan Webber Wright on 5/21/08. (vjt) (Entered: 05/21/2008)
127 RESPONSE to Motion re 125 MOTION to Reopen Case and for Issuance of Initial Scheduling Order filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does. (Cordi, C.) (Entered: 06/04/2008)
128 Second MOTION for Summary Judgment by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does (Cordi, C.) (Entered: 06/04/2008)
129 STATEMENT OF FACTS (Local Rule 56.1) re 128 Motion for Summary Judgment filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does. (Attachments: # 1 Affidavit Larry Norris with Exhibit A, # 2 July 2007 Declaration of Dr. Dershwitz, # 3 May 2008 Dec of Dr Dershwitz)(Cordi, C.) (Entered: 06/04/2008)
130 BRIEF IN SUPPORT filed by Gaylon Lay, Wendy Kelly, John Byus, Does re 128 Motion for Summary Judgment (Cordi, C.) (Entered: 06/04/2008)
131 MOTION to Lift Stay of Execution re Don William Davis by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does (Cordi, C.) (Entered: 06/04/2008)

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06/13/2008 06/13/2008 06/27/2008 07/16/2008 07/16/2008 07/16/2008
07/16/2008

132 MOTION for Extension of Time to File Response/Reply as to 131 MOTION to Lift Stay of Execution re Don William Davis by Don William Davis (Schay, E.) (Entered: 06/13/2008)
133 MOTION for Extension of Time to File Response/Reply as to 128 Second MOTION for Summary Judgment, 129 Statement of Facts (Local Rule 56.1), Statement of Facts (Local Rule 56.1), 130 Brief in Support by Terrick Terrell Nooner (Brain, Julie) (Entered: 06/13/2008)
134 ORDER granting Pltfs' Motions 131 132 for Extension of Time; Pltfs have until 7/16/08 to file responses to Defts' 131 motion to lift the stay of execution and Defts' 128 second motion for summary judgment. Signed by Judge Susan Webber Wright on 6/27/08. (vjt) (Entered: 06/30/2008)
135 RESPONSE in Opposition re 128 Second MOTION for Summary Judgment filed by Terrick Terrell Nooner. (Brain, Julie) (Entered: 07/16/2008)
136 RESPONSE in Opposition re 131 MOTION to Lift Stay of Execution re Don William Davis filed by Don William Davis. (Schay, E.) (Entered: 07/16/2008)
137 STATEMENT OF FACTS (Local Rule 56.1) re 135 Response in Opposition to Motion for Summary Judgment filed by Terrick Terrell Nooner. (Attachments: # 1 Exhibit Index, # 2 Exhibit 1−ADC Administrative Directive 08−28, # 3 Exhibit 2−7/30/07 Declaration of Mark J.S. Heath, M.D., # 4 Exhibit 3−Arkansas Department of Correction 2006 Annual Report, # 5 Exhibit 4−Declaration of Bill Simmons, # 6 Exhibit 5−Charles Singleton Execution Newspaper Article, # 7 Exhibit 6−Curriculum Vitae and Biography of John Byus, # 8 Exhibit 7−6/11/06 Declaration of Mark J.S. Heath, M.D., # 9 Exhibit 8−Declaration of Charles L. Carpenter, # 10 Exhibit 9−Steven Hill Execution Newspaper Article, # 11 Exhibit 10−Ronald Gene Simmons Execution Newspaper Article, # 12 Document 11−Rickey Ray Rector Execution Newspaper Article, # 13 Exhibit 12−Rickey Ray Rector Execution Newspaper Article 2, # 14 Exhibit 13−Excerpt of Deposition of Dr. Mark Dershwitz, # 15 Exhibit 14−Rickey Ray Rector Post Mortem Photograph 1, # 16 Exhibit 15−Rickey Ray Rector Post Mortem Photograph 2, # 17 Exhibit 16−Rickey Ray Rector Post Mortem Photograph 3, # 18 Exhibit 17−Rickey Ray Rector Post Mortem Photograph 4, # 19 Exhibit 18−Rickey Ray Rector Post Mortem Photograph 5, # 20 Exhibit 19−Rickey Ray Rector Post Mortem Photograph 6, # 21 Exhibit 20−rickey Ray Rector Post Mortem Photograph 7, # 22 Exhibit 21−Rickey Ray Rector Post Mortem Photograph 8, # 23 Exhibit 22−Rickey Ray Rector Post Mortem Photograph 9, # 24 Exhibit 23−Rickey Ray Rector Autopsy Report, # 25 Exhibit 24−Rickey Ray Rector Execution Newspaper Article 3, # 26 Exhibit 25−Declaration of John Jewell)(Brain, Julie) (Entered: 07/16/2008)
138 NOTICE by Terrick Terrell Nooner, re 137 Statement of Facts (Local Rule 56.1), of Additional Exhibits (Attachments: # 1 Exhibit 26−Clay Smith Post Mortem Photograph 1, # 2 Exhibit 27−Clay Smith Post Mortem Photograph 2, # 3 Exhibit 28−Clay Smith Post Mortem Photograph 3, # 4 Exhibit 29−Clay Smith Post Mortem Photograph 4, # 5 Exhibit 30−ADC Administrative Directive 05−43, # 6 Exhibit 31−7/16/08 Declaration of Mark J.S. Heath, M.D., # 7 Exhibit 32−Photograph of Execution Chamber 1, # 8 Exhibit 33−Photograph of Injection Room 1, # 9 Exhibit 34−Photograph of Injection Room 2, # 10 Exhibit 35−Photograph of Injection Room 3, # 11 Exhibit 36−Photograph of Injection Room 4, # 12 Exhibit 37−Photograph of Injection Room 5, # 13 Exhibit 38−Photograph of Execution Chamber 2, # 14 Exhibit 39−Photograph of Execution Chamber 3, # 15 Exhibit 40−Steven Hill Post Mortem Photograph 1, # 16 Exhibit 41−Steven Hill Post Mortem Photograph 2, # 17 Exhibit 42−Steven Hill Post Mortem Photograph 3, # 18 Exhibit 43−Affidavit of Neal Dupree, # 19 Exhibit 44−Testimony of Neal Dupree, # 20 Exhibit 45−Testimony of Randall Polk, # 21 Exhibit 46−Testimony of Timothy Westveer, # 22 Exhibit 47−Testimony of Williams Frank Hampilton, M.D., # 23 Exhibit 48−The Governor's Commission on Administration of Lethal Injection, Final Report, # 24 Exhibit 49−Testimony of Primary Executioner, # 25 Exhibit 50−Medical Examiner Consultation Form − Christina Riggs, # 26 Exhibit 51−Christina Riggs Post Mortem Photograph 1, # 27 Exhibit 52−Christina Riggs Post Mortem Photograph 2, # 28 Exhibit 53−Christina Riggs Execution Newspaper Article, # 29 Exhibit 54−Ronald Gene Simmons Post

Case: 5:06-cv-00110-SWW As of:01/12/2012 10:35 AM CST 13 of 14

07/21/2008 07/31/2008
07/31/2008 08/05/2008
08/05/2008 08/29/2008 08/29/2008 08/29/2008 08/29/2008 09/03/2008 09/08/2008 09/19/2008 09/19/2008 09/25/2008 02/08/2010 02/08/2010

Mortem Photograph 1, # 30 Exhibit 55−Ronald Gene Simmons Post Mortem Photograph 2, # 31 Exhibit 56−Ronald Gene Simmons Post Mortem Photograph 3, # 32 Exhibit 57−Medical Examiner Consultation Form − Ronald Gene Simmons, # 33 Exhibit 58−Kentucky Lethal Injection Protocol, # 34 Exhibit 59−Findings of Fact and Conclusions of Law, Baze v. Rees, # 35 Exhibit 60−Clay Smith Autopsy Report, # 36 Exhibit 61−Medical Examiner Consultation Form − Rickey Ray Rector, # 37 Exhibit 62−Medical Examiner Consultation Form − Steven Hill)(Brain, Julie) Modified on 7/17/2008 to remove duplicate text (jct). (Entered: 07/16/2008)
139 RESPONSE in Opposition re 128 Second MOTION for Summary Judgment Supplemental filed by Terrick Terrell Nooner. (Attachments: # 1 Exhibit 63 − Associated Press Article July 18, 2008)(Brain, Julie) (Entered: 07/21/2008)
140 REPLY to Response to Motion re 128 Second MOTION for Summary Judgment filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does. (Attachments: # 1 Affidavit Ray Hobbs, including Exhibit thereto)(Cordi, C.) (Entered: 07/31/2008)
141 REPLY to Response to Motion re 131 MOTION to Lift Stay of Execution re Don William Davis filed by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does. (Cordi, C.) (Entered: 07/31/2008)
142 ORDER granting 128 Motion for Summary Judgment; granting 131 Motion to Lift Stay as to Don William Davis. The stay of execution granted by the Eighth Circuit as to Plaintiff Jones and the stay of execution granted by Chief Judge Holmes as to Plaintiff Nooner are still in place. Signed by Judge Susan Webber Wright on 8/5/08. (dac) (Entered: 08/06/2008)
143 JUDGMENT case is DISMISSED WITH PREJUDICE, re 142 Order on Motion for Summary Judgment, Order on Motion to Lift Stay. Signed by Judge Susan Webber Wright on 8/5/08. (dac) (Entered: 08/06/2008)
144 USCA AMENDED JUDGMENT as to 97 Notice of Appeal filed by Terrick Terrell Nooner is dismissed on motion filed by appellees (dac) (Entered: 08/29/2008)
145 USCA AMENDED JUDGMENT as to 95 Notice of Appeal filed by Jack Harold Jones, Jr is dismissed, the stay of execution entered October 11, 2007 is dissolved. (dac) (Entered: 08/29/2008)
146 NOTICE OF APPEAL as to 143 Judgment by Terrick Terrell Nooner. (Brain, Julie) (Entered: 08/29/2008)
147 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 142 Order on Motion for Summary Judgment, Order on Motion to Lift Stay 143 Judgment 146 Notice of Appeal. (dac) (Entered: 08/29/2008)
148 USCA Docketing Letter and Briefing Schedule as to 146 Notice of Appeal filed by Terrick Terrell Nooner. USCA Case Number 08−2978 (dac) (Entered: 09/03/2008)
149 CORRECTED NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 142 Order on Motion for Summary Judgment, Order on Motion to Lift Stay 143 Judgment, 146 Notice of Appeal. (dac) (Entered: 09/08/2008)
150 MANDATE of USCA in accordance with the judgment of 8/29/08 as to 95 Notice of Appeal filed by Jack Harold Jones, Jr (dac) (Entered: 09/19/2008)
151 MANDATE of USCA in accordance with the judgment of 8/29/08 as to 97 Notice of Appeal filed by Terrick Terrell Nooner (dac) (Entered: 09/19/2008)
152 DESIGNATION of Record on Appeal by Larry Norris, Gaylon Lay, Wendy Kelly, John Byus, Does re 146 Notice of Appeal (Cordi, C.) (Entered: 09/25/2008)
153 OPINION of USCA as to 146 Notice of Appeal filed by Terrick Terrell Nooner (dac) (Entered: 02/10/2010)
154 USCA JUDGMENT as to 146 Notice of Appeal filed by Terrick Terrell Nooner. Judgment of the district court in this cause is affirmed in accordance with the

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04/06/2010 04/06/2010 04/09/2010 04/22/2010 05/10/2010 09/28/2010 11/10/2010

opinion of this Court.(dac) (Entered: 04/06/2010)
155 MANDATE of USCA In accordance with the opinion and judgment of 02/08/2010, as to 146 Notice of Appeal filed by Terrick Terrell Nooner (dac) (entry modified on 4/6/2010 to attach: # 1 Correct Main Document) (bfw). (Entered: 04/06/2010)
156 NOTICE OF DOCKET CORRECTION re 155 USCA Mandate: (entry modified to attach correct document) (copy attached hereto for service on counsel) (bfw) (Entered: 04/06/2010)
157 ORDER of USCA, Don William Davis request for stay of execution is dismissed for lack of jurisdiction. (dac) (Entered: 04/12/2010)
158 Letter from USCA Clerk, petition for a writ of certiorari filed in the U S Supreme Court as No. 09−10120 (dac) (Entered: 04/22/2010)
159 NOTICE from U S Supreme Court petition for writ of certiorari and the application for stay of execution of sentence of death re Don W Davis are dismissed (dac) (Entered: 05/10/2010)
160 Letter from USCA8, petition for a writ of certiorari filed in U S Supreme as No 10−6263 (dac) (Entered: 09/28/2010)
161 Letter from USCA Clerk, petition for a writ of certiorai denied by U S Supreme Court (dac) (Entered: 11/10/2010)

 
 United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_______________

No. 08-2978 _______________

Terrick Terrell Nooner,

*

*

Appellant,

*

*

Don William Davis;

*

Jack Harold Jones, Jr.,

*

*

Intervenor Plaintiffs-Appellants, *

*

v.

*

*

Larry Norris, in his official capacity *

as Director, Arkansas Department of *

Correction; Gaylon Lay, in his official *

capacity as Warden, Arkansas

*

Department of Correction, Cummins *

Unit; Wendy Kelly, in her official

*

capacity as Deputy Director for Health *

and Correctional Programs, Arkansas *

Department of Correction; John Byus, *

in his official capacity as Administrator, *

Correctional Medical Services,

*

Arkansas Department of Correction; *

Does, 1-50, unknown executioners, *

in their official capacities as employees *

and/or agents of the Arkansas

*

Department of Correction,

*

*

Appellees,

*

------------------------------

Appeal from the United States District Court for the Eastern District of Arkansas.

Frank Williams, Jr.,

*

*

Appellant,

*

*

v.

*

*

Larry Norris, in his official capacity *

as Director, Arkansas Department of *

Correction; Gaylon Lay, in his official *

capacity as Warden, Arkansas

*

Department of Correction, Cummins *

Unit; Wendy Kelly, in her official

*

capacity as Deputy Director for Health *

and Correctional Programs, Arkansas *

Department of Correction; John Byus, *

in his official capacity as Administrator, *

Correctional Medical Services,

*

Arkansas Department of Correction; *

Does, 1-50, unknown executioners, *

in their official capacities as employees *

and/or agents of the Arkansas

*

Department of Correction,

*

*

Appellees.

*

___________

Submitted: September 24, 2009 Filed: February 8, 2010 ___________

Before MELLOY, GRUENDER and BENTON, Circuit Judges. ___________

GRUENDER, Circuit Judge.

Terrick Terrell Nooner, Don William Davis, Jack Harold Jones and Frank Williams, Jr. (collectively, “the Inmates”) were each convicted of capital murder in
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Arkansas. Their convictions have been affirmed, their petitions for post-conviction relief have been denied, and they await execution by the State of Arkansas. In this 42 U.S.C. § 1983 lawsuit against Larry Norris, Director of the Arkansas Department of Correction, and other corrections employees (collectively, “the ADC”), the Inmates challenge the constitutionality of Arkansas’s protocol for execution by lethal injection. The district court1 granted the ADC’s motion for summary judgment, and the Inmates now appeal. For the following reasons, we affirm.
I. BACKGROUND
Nooner filed his lawsuit on May 1, 2006. Davis a nd Jones filed m otions to intervene as party plaintiffs, which the district court granted on May 26, 2006, and December 1, 2006, respectively. On August 9, 2007, the district court ordered the case consolidated with a similar lawsuit filed by Williams on July 11, 2007.
On June 26, 2006, the district court granted Davis a prelim inary injunction, staying his execution. The ADC appealed , and on July 9, 2007, we vacated the preliminary injunction and stay of execution. Nooner v. Norris, 491 F.3d 804, 806 (8th Cir. 2007). The next day, the Inmates sought discovery for the first time by filing a motion for expedited discovery. The district court denied the Inmates’ motion for expedited discovery on August 9, 2007, butthe ADC nevertheless produced more than 300 pages of docum ents in response. The ADC moved for sum mary judgment, arguing that the Inmates had failed to establish a genuine issue of material fact about the constitutionality of Arkansas’s lethal injection protocol. The Inm ates sought shelter under Federal Rule of Civil Procedure 56(f), claiming that they lacked access to the facts necessary to oppose the ADC’s motion for summary judgment and that they needed further discovery.
1The Honorable Susan Webber Wright, Un ited States District Judge for the Eastern District of Arkansas.
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Before the district court ruled on the ADC’s motion for summary judgment, the Supreme Court granted certiorari in Baze v. Rees , 552 U.S. 945 (2007), a case challenging the constitutionalityof Kentucky’s lethal injection protocol. Accordingly, the district court denied the ADC’s motion for summary judgment without prejudice and stayed and administratively terminatedthe Inmates’ lawsuit pending the outcome in Baze.
The Supreme Court issued its decision in Baze on April 16, 2008, upholding Kentucky’s lethal injection protocol. 553 U.S. 35, 128 S. Ct. 1520 (2008). The Inmates successfully moved to reopen their case on M ay 15, 2008. The A DC amended its lethal injection protocol on May 22, 2008, and m oved for sum mary judgment on June 4, 2008. The Inmates opposed this motion but did not renew their request for a continuance to obtain further discovery under Rule 56(f). On August 5, 2008, the district court granted the ADC’s motion for summary judgment.
Under Arkansas law, the Director of theADC is responsible for determining the policies and procedures followed by the ADC to execute pirsoners by lethal injection. Ark. Code Ann. § 5-4-617(a)(4). The parties refer to the set of execution instructions he has developed—and revised—as the Arkansas lethal injection protocol.
Ray Hobbs, Chief Deputy Director of the ADC, submitted an affidavit (“the Hobbs affidavit”) dated July 28, 2008, stating that he was authorized to m ake statements about the protocol on behalf of the ADC. The Inm ates have not argued that Hobbs acted ultra vires in subm itting this affidavit, and the ADC specifically stated at oral argument that it considers th e statements in the Hobbs affidavit to be binding on the ADC. Because the ADC may am end the protocol at the Director’s discretion, see Ark. Code Ann. § 5-4-617, we accept the Hobbs affidavit as a written addendum to the May 22, 2008 protocol.
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Under the protocol, the ADC’s Deputy Di rector for Health and Corr ectional Programs is primarily responsible for supervising executions. The Deputy Director must be “healthcare trained, educated, and/ or experienced in m atters related to the establishment and m onitoring of IVs, the mixing and adm inistration of lethal chemicals, and assessing the presence or absence of consciousness.” The protocol allows a designee to perform the functions of the Deputy Director, but the designee must meet the sam e qualifications. If needed, the Deputy Director provides an orientation for the executioners before each execution. She also selects the IV team, which is responsible for establishing intravenous infusion sites in condem ned prisoners. Each member of the IV team must have at least two years of professional experience as an emergency m edical technician, nurse, physician assistant or physician.
Arkansas administers the same combin ation of lethal chemicals to execute prisoners that at least thirty other statesuse: sodium pentothal, pancuronium bromide and potassium chloride. See Baze, 128 S. Ct. at 1527 (plurality opinion). 2 Before each execution, the Deputy Director is responsible for ensuring that the lethal chemicals are mixed properly and transferred to conspicuously numbered syringes that are secured in a carrying case.3
2All references to Baze, unless otherwise indicated, are to the plurality opinion written by Chief Justice Roberts.
3The protocol identifies the label and contents of each syringe as follows:
SYRINGE LABELED/ MARKED CONTENTS
#1/#2 Sodium Pentothal, 3.0 grams (two (2) syringes of 1.5 grams in 60 cc)
#3/#6 Normal Saline, 50 cc each 4#/#5 P a n c u r o n i u m B r o m i d e , 1 0 0 m g ( t w o ( 2 )
syringes of 50 mg in 50 cc)
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Arkansas executes condem ned prisoners in an execution cham ber that is adjoined by a witness roomand a control room. There is a large window between the execution chamber and the witness room that can be covered by a curtain. From the control room, the executioners can see into the execution chamber through a one-way mirror. The protocol directs the Deputy Driector to bring the condemned prisoner into the execution chamber strapped to a gurney, which is positioned directly in front of the one-way mirror so that the Deputy Director and the executioners can observe the IV infusion sites and t he prisoner’s face throughout the execution. The Deputy Director affixes cardiac monitor leads to the prisoner and then summons the IV team.
The IV team establishes two independent IV infusion sites, preferably one in each of the prisoner’s arms. If two sites cannotbe established, the protocol directs the Deputy Director to dism iss the IV team and “sum mon trained, educated, and experienced person(s) necessary to establish a primary IV line as a peripheral line or as a central venous line.” After the infu sion sites are established, the IV team connects the IV lines to the control r oom with extension tubing, allowing the executioners to administer the lethal ch emicals from the con trol room. When the warden authorizes the executioners to begininjecting the lethal chemicals, the curtain between the execution chamber and the witness room is opened.
The executioners first inject two syringes containing three gram s of sodium pentothal, a barbiturate, into the primary IV line. The protocol requires the Deputy Director to wait at least three minutes af ter the executioners be gin the injection of sodium pentothal before directing the executioners to administer the contents of the
#7/#8 Potassium Chloride, 240 mEq (two (2) syringes of 120 mEq in 60 cc)
Backup Syringes #B1/B2 Sodium Pentothal, 3.0 grams (two (2) syringes of 1.5 grams in 60 cc) #B3 Normal Saline, 50 cc
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remaining syringes. During this time, the protocol instructs the Deputy Director to use standard m edical techniques, “such as checking for m ovement, opened eyes, eyelash reflex, and response to verbal commands and physical stimuli,” to verify that the prisoner has been rendered com pletely unconscious. After three m inutes have elapsed and the Deputy Director verifies that the prisoner is completely unconscious, the protocol instructs the executioners to inject a syringe of normal saline to flush the IV line, followed by two syrni ges containing 100 mg of pancuronium bromide, which paralyzes the prisoner’s muscles and stops respiration. Atfer injecting another syringe of saline, the executioners administer two syringes containing 240 mEq of potassium chloride, which induces cardiac arrest.
The protocol requires the Deputy Director to monitor the primary IV infusion site continuously and to reduce the flow of lethal chemicals or redirect them to the alternate infusion site if she suspects a problem. The curtain between the witness room and the execution cham ber is closed if an infusion problem develops but otherwise remains open during the adm inistration of lethal chem icals. After the cardiac monitors display a flat-line, a coroner is sum moned to pronounce death. Prison officials then close the curtain to the witness room and escort the witnesses from the building.
The Inmates argue that the district courtabused its discretion in finding that the case is ripe for sum mary judgment. They also argue that the district court erred in granting summary judgment to the ADC becausethe record establishes genuine issues of material fact about whether Arkansas’slethal injection protocol is unconstitutional.
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II. DISCUSSION
The Eighth Am endment, applicable to the states through the Fourteenth Amendment, prohibits cruel and unusual execution procedures. See Baze, 128 S. Ct. at 1530. Challenges to the constitutionality ofa state’s lethal injection procedures are cognizable under 42 U.S.C. § 1983. Hill v. McDonough, 547 U.S. 573, 576 (2006).
“We begin with the principle . . . th at capital punishment is constitutional.” Baze, 128 S. Ct. at 1529 (citingGregg v. Georgia, 428 U.S. 153, 177 (1976) (plurality opinion)). “It necessarily follows that there must be a means of carrying it out.” Id. “[T]he Constitution does not demand the avoidance of all risk of pain in carrying out executions.” Id. To establish a violation of the Eighth Amendment, an execution procedure must be “‘sure or very likely tocause . . . needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” Id. at 1531 (quoting Helling v. McKinney, 509 U.S. 25, 33-34 (1993)). “[T]o prevail on sucha claim there must be a ‘substantial risk of serious harm,’ . . . that prevents pr ison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Am endment.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 and n.9 (1994) ). “The m ere fact ‘an execution method may result in pain, either by accident or as an inescapable consequence of death,’ does not am ount to an Eighth Am endment violation.” Clemons v. Crawford, 585 F.3d 1119, 1125 (8th Cir. 2009) (quotingBaze, 128 S. Ct. at 1531). The Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishm ent.” Baze, 128 S. Ct. at 1530.
In Taylor v. Crawford, we reviewed a facial challenge to the constitutionality of Missouri’s lethal injection protocol. 487 F.3d 1072, 1085 (8th Cir. 2007), cert. denied, 553 U.S. ---, 128 S. Ct. 2047 (2008). Wdeetermined that the constitutionality of Missouri’s protocol “depends upon whether the protocol as written would inflict unnecessary pain, aside from any considerati on of specific intent on the part of a
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particular state official.” Id. at 1081. Accordingly, we focused on the written protocol to determine whether it “presents a substantial risk of inflicting unnecessary pain,” id. at 1080, and we held that Missouri’s proot col did not violate the Eighth Amendment, id. at 1085.

After our decision in Taylor, the Suprem e Court upheld Kentucky’s lethal

injection protocol in Baze. 128 S. Ct. at 1526. The Court’s opinion was fractured,

and no opinion com manded a m ajority of th e Justices. However, a three-Justice

plurality concluded, in an opinion written by Chief Justice Roberts, that a lethal

injection protocol m ust create a “substantial risk of serious harm

” to be

unconstitutional. Id. at 1531 (quoting Farmer, 511 U.S. at 842). FollowingBaze, no

federal appellate court has invalidated a lethal injection protocol under the Eighth

Amendment. Cooey v. Strickland , 589 F.3d 210, 221 (6th Cir. 2009) (collecting

cases).

In Clemons v. Crawfo rd, we relied on Baze to hold that eight condem ned prisoners in Missouri could not “support anEighth Amendment claim” because they had not “alleged a sufficiently substantia l risk of serious harm ” in challenging Missouri’s implementation of its protocol. 585 F.3d at 1127-28; see also Harbison v. Little, 571 F.3d 531, 535 (6th Cir. 2009) (“ChifeJustice Roberts’s plurality opinion [in Baze] is controlling.”), petition for cert. filed, --- U.S.L.W. --- (U.S. Nov. 23, 2009) (No. 09-7777); Emmett v. Johnson , 532 F.3d 291, 298 n.4 (4th Cir. 2008) (concluding that the plurality opinion “represents the co ntrolling opinion of the Court”). In this case, we are called on todecide whether the Arkansas lethal injection protocol violates the Eighth Am endment’s prohibition against cruel and unusual punishment by subjecting the Inmates to a substantial risk of serious harm.

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A. Ripeness of Summary Judgment Motion
As a preliminary matter, however, the Inmates argue that their case is not ripe for summary judgment. We review the distrcit court’s determination that a case is ripe for summary judgment for abuse of discretion. Nolan v. Thompson, 521 F.3d 983, 986 (8th Cir. 2008).
“Discovery does not have to be completed before a court can grant summary judgment, but summary judgment is properonly after the nonmovant has had adequate time for discovery.” In re TMJ Implant Prods. Liab. Litig., 113 F.3d 1484, 1489-90 (8th Cir. 1997) (internal citations omitted). The record shows that the Inm ates had adequate time to conduct discovery. This lawsuit was initially filed on May 1, 2006, but the Inmates did not request discovery for more than fourteen months, when they sought expedited discovery. The Inmates attribute this fourteen-month delay to the district court’s failure to enter a scheduling order, which they assert is normally the starting point for discovery in Arkansas. As the district court correctly noted, however, the “lack of a scheduling order did not prevent counsel fromconferring and developing a discovery plan as requiredunder Federal Rule of Civil Procedure 26(f); nor did it prevent Nooner from requesting th at the Court enter a scheduling order.” Nooner v. Norris, No. 5:06-cv-001100, 2007 WL 2301221, at *3 (E.D. Ark. Aug. 9, 2007) (unpublished) (footnote omitted) (citing Nickens v. White, 622 F.2d 967, 971 (8th Cir. 1980)).
In any event, the Inmates sought shelter under Federal Rule of Civil Procedure 56(f) on July 30, 2007, claiming that withoutdiscovery they lackedthe facts necessary to oppose the ADC’s initial motion for summary judgment. Subsequently, the ADC voluntarily produced m ore than 300 pages of documents to the Inm ates. On November 9, 2007, the district court stay ed and adm inistratively terminated the lawsuit pending the Suprem e Court’s decision in Baze. Af ter the district court reopened this case on May 21, 2008, the ADC filed a second m otion for summary
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judgment. In opposing the ADC’s motion, the Inmates did not renew their request for a continuance to obtain furt her discovery under Rule 56(f). 4 Under these circumstances, the district court did not abuse its discretion in finding that the case is ripe for summary judgment. See In re TMJ Implant Prods. Liab. Litig., 113 F.3d at 1490 (“If a party opposing a summary judgment motion does not seek shelter under Rule 56(f) or otherwise ask for a continuance, a court generally does not abuse its discretion in granting sum mary judgment based on the record before it.” (citing Wallace v. Dorsey Trailers Se., Inc., 849 F.2d 341, 344 (8th Cir. 1988))); Ballard v. Heineman, 548 F.3d 1132, 1136 (8th Cir. 2008) (“The district court does not abuse its discretion by denying further discove ry ‘where the nonm oving party is not deprived of a fair chance to respond to the summary judgment motion.’” (quoting Nord v. Kelly, 520 F.3d 848, 852 (8th Cir. 2008))).
B. Summary Judgment
Turning to the m erits, “[w]e review a district court’s grant of summary judgment de novo, using the same standards applied by the district court.” Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 728 (8th Cir. 2002) (citing Iowa Coal Mining Co. v. Monroe County , 257 F.3d 846, 852 (8th Cir. 2001)). “Sum mary judgment is proper where the evidence, when viewed in thelight most favorable to the nonmoving party, indicates that no genuine issue of material fact exists and that the moving party is entitled to judgm ent as a m atter of law.” Davison v. City of Minneapolis, 490 F.3d 648, 654 (8th Cir. 2007) (quotingHughes v. Stottlemyre, 454 F.3d 791, 796 (8th Cir. 2006)). We must affirm the district court’s grant of summary judgment unless a reasonable fact finder, viewing the evidence in the light m ost favorable to the Inmates, could return a verdict in their favor. See Prosser v. Ross, 70
4The district court granted the Inm ates a thirty-day extension to file their response in opposition to the ADC’s motion for summary judgment, but they did not argue that they needed the time to conduct discovery or that they lacked access to the facts needed to oppose the ADC’s motion.
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F.3d 1005, 1009 (8th Cir. 1995). The Inmates contend that summary judgment was improper with respect to eight issues. We examine each in turn.
1. The Risk of Remaining Conscious
The combination of lethal chemicals that Arkansas and at least thirty other states use to execute prisoners has been designed to cause as little pain as possible. See Baze, 128 S. Ct. at 1527 n.1 (noting that “inmoving to lethal injection, the States were motivated by a desire to find a mo re humane alternative to then-existing methods”). “The proper administration of [sodium pentothal] ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the [pancuronium bromide] and [potassium chloride].” Id. at 1527. In this case, the Inmates have not challenged the opinion of the ADC’s expert witness, Dr. Mark Dershwitz, that within sixty seconds of the injection of all three gram s of sodium pentothal “more than 99.9999999% of the population would be unconscious.” However, it is also undisputed that if th e other chemicals were administered to a prisoner while still conscious, he would fee“lan excruciating burning sensation as [the potassium chloride] travels through his veins to induce a heart attack, and yet he would be unable to indicate that he is experiencing pain due to the paralyzing effects of the second chemical, pancuronium bromide.” See Taylor, 487 F.3d at 1074.
The Arkansas protocol contains several safeguards to ensure that the sodium pentothal is adm inistered properly and that the pris oner has been rendered fully unconscious before the pancuronium bromide and potassium chloride are injected. The protocol requires the Deputy Director towait three minutes after the injection of sodium pentothal before directing the executioners to adm inister the rem aining chemicals. During this time, the Deputy Di rector must verify that the prisoner is unconscious by using “standard procedures for assessing consciousness as required by medical paraprofessionals, such as checking for movement, opened eyes, eyelash reflex, and response to verbal com mands and physical stim uli.” If the prisoner
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remains conscious after the injection of thesodium pentothal, the protocol requires the Deputy Director to direct the executioners to inject the back-up doses of sodium pentothal into the secondary IV line. Fi nally, the protocol requires the Deputy Director to continuously monitor the IV infusion sites throughout the execution and to suspend the flow of lethal chemicals if she suspects a problem.
The Inmates argue that evidence about four previous executions in Arkansas establishes a genuine issue of material fact regarding whether the protocol creates a substantial risk of serious harm. In particular, they assert that the ADC “botched” the executions of Ronald Gene Sim mons on June 25, 1990; of Rickey Ray Rector on January 24, 1992; of Steven Douglas Hillon May 7, 1992; and of Christina Riggs on May 2, 2000. In the light most favorable to the Inmates, the record shows that each of these condemned prisoners exhibited signs of consciousness within three minutes of the injection of sodiumpentothal. Thus, according tothe Inmates, these executions create a genuine issue of material fact about whether the current protocol sufficiently ensures that they will be fully unconsci ous before the pancuronium bromide and potassium chloride are administered.
We emphasized in Taylor that when reviewing theconstitutionality of a state’s lethal injection protocol we review the current protocol as written. See 487 F.3d at 1080 (“The focus of our inquiry is whetherthe written protocol inherently imposes a constitutionally significant risk of pain.”). Moreover, we held that if the written protocol is not unconstitutional on its face, “any risk t hat the [lethal injection] procedure will not work as designated in th e protocol is merely a r isk of accident, which is insignificant in our constitutional analysis.” Id. The plurality in Baze similarly stated that “an isolated m ishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty.’” 128 S. Ct. at 1531 (citing Farmer, 511 U.S. at 842).
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The Inmates point to the plurality’s suggestion in Baze that a “s eries of abortive” execution attempts “would present a different case,” id., to claim that their evidence of problems during previous executions creates a genuine issue of material fact about the constitutionality of the Arkansas protocol. These four executions were not carried out under the current protocol,however. As discussed above, the current protocol contains num erous safeguards designed to prevent the ADC from administering pancuronium bromide and potassium chloride to a prisoner who is not fully unconscious. Thus, even if the ADCengaged in a “series of abortive” execution attempts under previous protocols, the r ecord does not establish a genuine issue of material fact about whether the Inmates will remain conscious during the injection of the pancuronium bromide and potassium chloride under the current protocol.
The Inmates correctly point out that the record does not contain the lethal injection protocols in place at the time Simmons, Rector, Hill and Riggs were executed. According to the Inmates, this creates a genuine issue of material fact about whether the ADC has engaged in a “seriesof abortive” execution attempts despite the safeguards required by the current protocol because it is possible the previous protocols contained the same safeguards. Although the record does not identify or describe the protocols in place at the tim e of the four previous executions, it does contain lethal injection protocols datedMay 23, 1996, and November 23, 2005. These protocols lacked m any of the safeguards required by the current protocol. For instance, the 1996 protocol did not require ADC officials to monitor the IV infusion sites, and it did not contai n a contingency plan for addressing infusion problem s. Neither the 1996 nor the 2005 protocol required ADC officials to pause between the administration of sodium pentothal and pancuronium bromide to determine whether the prisoner is unconscious, nor did they require the preparation or administration of back-up syringes of sodium pentothal. The current protocol is much more thorough than these earlier protocols and, as di scussed above, contains procedures that sufficiently protect prisoners from remaining conscious during the injection of the pancuronium bromide and potassium chloride. Cf. Harbison, 571 F.3d at 536-37
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(upholding the Tennessee lethal injection protocol despite the state’s decision to reject a review com mittee’s recommendation to adopt procedures for assessing consciousness after the administration of sodium pentothal).
The Inmates urge us to ignore the safeguards in the current protocol and find that there is a genuine issue of material fact about whether the protocols that governed the executions carried out in 1990, 1992 and 2000 contained safeguards that were not part of the 1996 and 2005 protocosl. We reject this argument. The possibility that the ADC removed significant safeguards in 1996 and 2005, only to reinstate them in the May 22, 2008 protocol, is so unlikely that it am ounts to little m ore than pure speculation. See Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009) (“[S]ummary judgment will not be reversed on the basis of speculation, conjecture, or fantasy.” (citing Potman v. Unity Health Sys., Inc., 348 F.3d 732, 733-34 (8th Cir. 2003))). Under the current protocol, “any ri sk that [Arkansas’ s lethal injection] procedure will not work as designated . . . is merely a risk of accident, which is insignificant in our constitutional analysis.” Taylor, 487 F.3d at 1080.
We hold that the Inmates’ evidence of previous executions does not establish that the Arkansas protocol creates a substantial risk of serious harm that the Inmates will remain conscious after the administration of the sodium pentothal.
2. Intracardiac Infusion
The Inmates argue that the record establishes a genuine issue of material fact about whether the ADC plans to use “intracardiac infusion” in future executions. In this context, intracardiac infusion refers to a potentially painful procedure whereby lethal chemicals are injected directly into a chamber of the heart with a large needle. The November 23, 2005 version of the protocol authorized this procedure as a last resort, but the May 22, 2008 version does not mention it. Nevertheless, the Inmates claim that the ADC plans to use this procedure under the current protocol based on a
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July 18, 2008 newspaper article in which ADC spokeswoman Dina Tyler is reported to have said that the ADC could start a line directly to a condemned prisoner’s heart if necessary. The ADC argues that this article is hearsay and cannot be relied on to oppose summary judgment.
We have held that “only evidence that would be adm issible at trial m ay be relied upon to counter a moti on for summary judgment.” Sokol & Assocs., Inc. v. Techsonic Indus., Inc., 495 F.3d 605, 611 n.4 (8th Cir. 2007) (citingShaver v. Indep. Stave Co., 350 F.3d 716, 723 (8th Cir. 2003)). The Inm ates argue that Tyler’s statement is admissible under Federal Rule of Evidence 801(d)(2) as a non-hearsay admission of a party opponent. This argument fails to distinguish Tyler’s statement from the newspaper article containing the st atement. Newspaper articles are “rank hearsay.” See Miller v. Tony & Susan Alamo Found. , 924 F.2d 143, 147 (8th Cir. 1991). Even if Tyler’s statem ent is viewed as a non-hearsay adm ission of a party opponent, the newspaper article reporting the statement is offered to prove the truth of the matter asserted and is not covered by any hearsay exception. Therefore, the article’s description of Tyler’s statem ent about intracardiac infusion “cannot be admitted for its truth.” See United States v. Santisteban, 501 F.3d 873, 878-79 (8th Cir. 2007).
Even assuming the newspaper article is admissible evidence, the Inmates would still fail to establish a genuine issue of material fact about whether the ADC plans to use intracardiac infusion in future executions. The Hobbs affidavit flatly states that “intracardiac infusion will not be perform ed during any future lethal-injection execution carried out by the ADC.” The a ffidavit is dated July 28, 2008, ten days after the newspaper account of Ty ler’s statement. Because we treat the Hobbs affidavit as a binding written addendumto theprotocol, we conclude that it supersedes Tyler’s statement.
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3. Central line placement
If the IV team cannot establish IV access thr ough traditional methods, the protocol authorizes the Deputy Direct or to summon “trained, educated, and experienced person(s)” to establish a central venous line byinserting a catheter in the femoral, jugular or subclavian vein. TheInmates argue that this “vague, standardless provision . . . places no meaningful restrictions whatsoever upon who may perform this dangerous procedure” and that the protocol therefore authorizes unqualified personnel to establish such lines. We rejecthe Inmates’ argument. “[I]t is imperative for the State to employ personnel who are properly trained to competently carry out each medical step of the [let hal injection] procedure.” Clemons, 585 F.3d at 1128 (quoting Taylor, 487 F.3d at 1084). The protocol’s requirements satisfy this standard. Moreover, the Hobbs affidavit clarifies thatany attempt to place a central venous line will be performed by “a licensed physician who is credentialed to establish” such lines.5 The Inm ates have not established a genuine issue of m aterial fact about whether they face a substantial risk of serious harm from the placement of central venous lines by unqualified ADC personnel.
4. Cut-down procedure
The Inmates argue that the protocol authorizes ADC personnel to use a “cutdown” procedure if they are unable to obtain intravenous access by other m ethods. They define a cut-down as “an incision into the prisoner’s flesh deep enough to expose the vein for direct insertion of the needle and catheter.” The Inm ates characterize the procedure as “brutal, agonizing” and “barbaric.” They point to the 1992 execution of Rickey Ray Rector as evidence that future prisoners will be “subject to the procedure that led to [h is] torturous death.” In that instance, ADC
5We need not consider whether a cen tral venous line may constitutionally be established by someone other than a licensed physician.
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personnel were unable to establish infu sion sites through traditional m ethods and eventually made a two-inch incision i n Rector’s arm. Rector reportedly groaned periodically during the ADC’s attempts to establish intravenous access. The Inmates argue that this evidence suggests that theyface a substantial risk of serious harmfrom a cut-down procedure.
Although the current protocol does no t expressly authorize a cut-down procedure, the ADC acknowledges that it m ight be necessary to m ake incisions on some prisoners to establish IV access. Howveer, the Hobbs affidavit clarifies that any such incision would be m ade by a licen sed physician who is properly qualified to carry out the procedure. Moreover, the protocol states that all attempts to obtain IV access must avoid unnecessary pain by us ing local anesthetic as necessary. 6 The Inmates have not argued, nor does the record establish, that an incision made under these conditions rises to the level of seriousharm. Accordingly, weconclude that the Inmates have failed to establish a genuine issue of material fact about whether they face a substantial risk of serious harm from a cut-down procedure. Cf. Cooey, 589 F.3d at 228 (noting that the Sixth Circuitupheld Tennessee’s lethal injection protocol even though it expressly authorizes a physician to use a cut-down procedure to gain IV access as a contingency plan).
6The protocol provides:
EVERY EFFORT WILL BE EXTENDED TO THE CONDEMNED INMATE TO ENSURE THAT NO UNNECESSARY PAIN OR SUFFERING IS INFLICTED BY TH E IV PROCEDURE. STANDARD PRACTICE OF USING A LOCAL ANESTHETIC WILL BE ACCOMMODATED AS NECESSARY.
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5. IV Team Qualifications
The Inmates argue that the ADC does notrequire its IV team members to have qualifications and experience comparableto those required by the Kentucky protocol upheld in Baze. The Baze plurality stated that Ken tucky has instituted “im portant safeguards” to ensure that the lethal ch emicals used in its executions are properly administered. 128 S. Ct. at 1533. Specifically, Kentucky’s protocol requires each member of its IV team to h ave at least one year of professional experience as a phlebotomist, emergency medical technician, paramedic, certified medical assistant or military corpsman. Id. The plurality noted that the current members of Kentucky’s IV team insert IV catheters on a daily basis and that the Kentucky protocol requires the IV team to engage in at least ten practice sessions each year. Id. at 1533-34. But the plurality made clear that the “most significant” of Kentucky’s safeguards was the requirement that each member of the IV team have at least one year of professional experience. Id. at 1533.7
The Arkansas protocol goes even further than the Kentucky protocol by requiring IV team members to have at least two years of professional experience as
7The Inmates assert that theBaze plurality found that the daily experience of the IV team members was equally significant. This argument mischaracterizesBaze. The opinion states:
Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopental is delivered to the condem ned prisoner. The most significa nt of these is the written protocol’s requirement that members of the IV team must have at least one year of professional experience as a certified m edical assistant, phlebotomist, EMT, paramedic, or military corpsmen.
Baze, 128 S. Ct. at 1533 (emphasis added).
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an emergency medical technician, nurse, physician assistant or physician. The record does not show how often the current members of the IV team establish IV lines, but the two-year professional experience requirement ensures that IV team members are qualified and competent to insert IV catheters. Moreover, the Inmates are wrong to suggest that “no training of the IV Team members whatsoever is conducted” in Arkansas. The protocol does not include a specific schedule for practice execution sessions, but that does not mean such practice sessions do not take place. Indeed, the protocol outlines a procedure for conducting practice execution sessions and requires the IV team to “initiate intravenous infusion devices” during each practice session. We conclude that the required qualifications for IV teammembers in Arkansas under the current protocol are substantially si milar to the requirem ents of the Kentucky protocol upheld in Baze. See 128 S. Ct. at 1537 (observing that a state “with a lethal injection protocol substantially sim ilar to” Kentucky’s protocol would be constitutional).
The Inmates also argue thatthe Deputy Director is not qualified to supervise the IV team. They argue that the protocol’s requirement that the Deputy Director be “healthcare trained, educated, and/or experienced” is vague. This argument ignores other relevant language in the sam e sentence, which in full states that the Deputy Director must be “healthcare trained, educated, and/or experiencedin matters related to the establishment and monitoring of IVs .” (Emphasis added.) The Inm ates also argue that the Deputy Director m ust hold the same “credentials, qualifications and competencies” as the members of the IV team. We reject this argument. The Deputy Director supervises the IV team and m onitors the infusion sites, but she d oes not personally establish any of the IV lines a nd is not a member of the IV team. The qualifications required by the protocol ensurethat the Deputy Director is sufficiently competent to perform her supervisory role.8
8We reject the Inmates’ assertion that John Byus, the Administrator of Medical and Dental Services for the ADC, is unqualified to supervise the IVteam. The record reveals that Byus is an experienced healthcare professional with more than thirty years
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Because the Inmates have not presentedsufficient evidence to create a genuine issue of material fact about whether they face a substantial risk of serious harm as a result of any deficiencies in the training or experience of the ADC’s IV team or its Deputy Director, summary judgment was proper on this issue.
6. Infusion Site Monitoring
The Inmates contend that the Arkansas protocol subjects them to a substantial risk of serious harm by failing to provide for adequate monitoring of the IV infusion sites. The sole piece of evidence they provide in support of this argument is a postmortem photograph of Steven Hill, which shows his entire body—except his head and hands—covered with a sheet. The Inm ates argue that this photograph creates a genuine issue of m aterial fact about whether the protocol prevents adequate monitoring of the IV infusion sites by authorizing the ADC to cover condem ned prisoners with sheets during their executions.
The Baze plurality noted that in Kentucky “the presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems.” 128 S. Ct. at 1534(emphasis added). The Kentucky protocol does not specifically require anyone to monitor the infusion sites, however. See Appellants’ App. at 528-44; see also Harbison, 571 F.3d at 538 (concluding that visually monitoring IV lines “by video camera and through a one-way window” does not violate the Constitution).
The Arkansas protocol expressly requi res the Deputy Director to “directly observe the . . . IV infusion site(s)” and to “closely monitor” these sites “throughout
of experience as an emergency room technician, licensed practical nurse, Assistant Infirmary Administrator, Supervisor of Medical Services, and Adm inistrator of Medical and Dental Services.
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the lethal chemical infusion process.” This requirement necessarily precludes ADC personnel from fully covering condem ned prisoners with sheets before they are pronounced dead. Moreover, the post-mortem photograph of Hill is not probative of whether the IV infusion sites were visibl e during his execution. Thus, the Inm ates have failed to establish a genuine issue of m aterial fact about the adequacy of infusion-site monitoring under the protocol. See Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (“A mere scintilla of evidence is insufficient to avoid summary judgment.” (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986))).9
7. Contingency Plan
If the Deputy Director suspects there is a problem with an infusion site, the protocol requires her to “directreduction of lethal chemicalflow rate or redirect lethal chemical to the secondary or alternativ e site.” The Inmates argue that this contingency plan creates a substantial ri sk of ser ious harm because the Deputy Director might order the executioners to adm inister the syringes of pancuronium bromide and potassium chloride to the secondary IV site without injecting additional doses of sodiumpentothal and normal saline. In other words, the Inmates contend that the protocol authorizes the Deputy Director to administer pancuronium bromide and potassium chloride to a prisoner who is not fully unconscious. This argument erroneously assumes that pancuronium bromide and potassium chloride are the only two “lethal chemicals” administered under the protocol. The Inm ates’ own expert asserted that “[t]wo grams of sodium thiopental is a massive, and potentially lethal,
9We also note that Charles Carpenter , Hill’s form er attorney, subm itted a declaration in which he described seeing the IV insertionpoint at Hill’s elbow as well as a wide belt covering Hill’s chest duringthe execution. Carpenter’s observation is also consistent with ninepost-mortem photographs of prisoners (including one of Hill) in the record. In each of these photographs , the prisoner is strapped to the gurney uncovered and the infusion sites are visible.
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dose”;10 the Arkansas protocol calls for the injection of three gram s of sodium pentothal. Cf. Cooey v. Strickland, 589 F.3d at 216, 219 (upholding the Ohio lethal injection protocol, which relies exclusively on a five-gram dose of sodium pentothal to execute prisoners). Indeed, the protocol clearly lists sodium pentothal among the “lethal chemicals” used during executions . The ADC’s decision to characterize sodium pentothal as a lethal chem ical indicates that it intends all of the chemicals listed in the protocol to be redirected to the secondary IV site.
The Inmates’ argument again ignores the protocol’s requirem ent that the Deputy Director ensure the prisoner is fully unconscious before directing the executioners to administer the pancuronium bromide and potassium chloride. The protocol also requires her to adm inister the back-up doses of sodium pentothal if necessary to render the prisoner com pletely unconscious. These requirem ents necessarily prohibit injecting pancuronium bromide and potassium chloride into the secondary IV line before the prisoner is fully unconscious. Moreover, the Hobbs affidavit clarifies that the ADCinterprets the protocol to require “the back-up syringes of sodium pentothal and saline flush to be administered before the administration of any remaining pancuronium bromide and potassium chloride,” if the need arises for the Deputy Director to redirect the flow oflethal chemicals during an execution. We conclude that the Inmates have failed to create a genuine issue of material fact about whether the protocol’s contingency plan subjects them to a substantial risk of serious harm. Cf. Emmett, 532 F.3d at 306 (upholding Virginia’s lethal injection protocol despite the lack of an explicit requirement to administer a back-up dose of sodium pentothal if it is necessary to inject additional doses of pancuronium bromide or potassium chloride).
10Sodium pentothal is also known as thiopental. Baze, 128 S. Ct. at 1527.
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8. The Adequacy of the Execution Facility
The Inmates argue that the ADC’s ex ecution facility subjects them to a substantial risk of serious harm because the execution cham ber is poorly lit, the control room is too small, the syringes are inadequately labeled, and the executioners are not positioned to properly observe the IV infusion sites. The Inm ates rely on eleven photographs in the record to suppor t this argument, none of which create a genuine issue of m aterial fact about the adequacy of the exec ution facility. The photographs show that the syringes are clearly labeled with large num bers and arranged in the carrying case in numerical order. The photographs reveal little, if anything, about the size of the control room, the viewpoint of the executioners, or the adequacy of the lighting. Based on these photographs aol ne, no reasonable fact finder could conclude that the ADC’s execution facility subjects the Inmates to a substantial risk of serious harm, and summary judgment was therefore appropriate. See Dush v. Appleton Elec. Co. , 124 F.3d 957, 963 (8th Cir. 1997) (“To avoid the entry of [summary] judgment, it is incumbent upon the nonmoving party to support its case with ‘more than a scintilla of evidence.’” (quotingF.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir. 1997))).
C. Summary
We hold that the district court did not abuse its discretion in finding that the Inmates’ case is ripe for sum mary judgment. Based on our review of Arkansas’s lethal injection protocol, we conclude that it is designed “to avoid the needless infliction of pain, not to cause it.” See Taylor, 487 F.3d at 1085 (quoting Workman, 486 F.3d at 907). Moreover, it is substan tially similar to—and perhaps even m ore thorough than—the Kentucky protocolupheld by the Supreme Court in Baze, see 128 S. Ct. at 1537, and the Missouri protocol we upheld in Taylor, see 487 F.3d at 1085. The Inmates have failed to establish a genuine issue of material fact about whether the Arkansas protocol subjects them to a substantial risk of serious harm. On this record,
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we hold that the protocol does not violate the Eighth Amendment and that the district court appropriately granted the ADC’s motion for summary judgment. III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court. ______________________________
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