1 KEKER & VAN NEST, LLP JON B. STREETER - #101970
2 WENDY J. THU - #163558
AlA Y S. KRSHNAN - #222476
3 KATHERI J. FLOREY - #241647
71 0 Sansome Street 4 San Francisco, CA 94111-1704
Telephone: (415) 391-5400
5 Facsimile: (415) 397-7188
E-mail: jstreeter~kv.com
6
ACLU FOUNATION OF NORTHERN CALIFORN 7 ALAN SCHLOSSER - #49957
MICHAL RISHER - #191627
8 i 663 Mission, Suite 460
San Francisco, CA 94103
9 Telephone: (415) 621-2493
Facsimile: (415) 255-1478
10 E-mail: aschlosser~ac1unc.org
11 Attorneys for Plaintiff PACIFIC NEWS SERVICE
12
13 UNTED STATES DISTRICT COURT
14 NORTHERN DISTRICT OF CALIFORNIA

15

16 II PA.CIFIC l-ffV1S SERVICE,

17

Plaintiff,

18

v.

19 JEAN WOODFORD, Acting Secretar of
the Californa Deparent of Corrections and
20 Rehabilitation; STEVEN ORNOSKI, Warden, California State Prison at San Quentin, San
21 Quentin, CA; and Does 1-50,

CaseNo.
COMPLAINT FOR DECLARTORY AND INJUNCTIVE RELIEF
(42 V.S.C. § 1983)

22

Defendants.

23

24

25

26

27

28

368536.05

COMPLAIT FOR DECLARATORY AND INJUCTIVE RELIEF CASE NO.

1

NATURE OF ACTION.

2

1.

This- action is brought pursuant to 42 U.S.C. § 1983 to vindicate the right of the

3 press and the public to attend, meanngfully observe, and gather and report on important

4 information at executions adminstered by the Californa Deparent of Corrections and

5 Rehabilitation and the Californa State Prison at San Quentin. This right is guaranteed by the
6 First and Foureenth Amendments ofthe United States Constitution and is primarly effectuated 7 by members of the press who are actually present at executions and who serve as surogates for

8 the press and the public at large. Plaintiff, a media organzation that reports on

Californa

9 executions, seeks temporar, preliminary, and permanent injunctive relief to prevent the

10 defendants from executing any death row inmates in a maner that conceals important

11 information to which the public is constitutionally entitled. Defendants' use of

pan cur onium

12 bromide, a paralytic agent that acts as a chemical curain over the lethal injection process, makes

13 it impossible for witnesses to determine whether death row inmates in California are being'

14 subjected to substantial and unecessar pain before dying. Pancuronium bromide also conceals

1. other aspects ofthe, dying process about which the public is entitled to know. This lawsuit is not

16 a bhuiket challenge to the death penalty or to all lethal injection executions. Rather, plaintiff

17 contends that Californa may not execute death row inmates in a maner that violates the First

18 Amendment rights of

the press and

of the public. The public requires information in order to

19 decide via democratic processes whether and how executions should be conducted. The First

20 Amendment claim, therefore, vindicates the public's right

to gather information related to that'

21 decision-making process.
22 JURISDICTION AND VENUE

23

2. This Cour has jursdiction pursuant to 28 U.S.C. § 1331 (federal question),

24 § 1343 (civil rights violations), § 2201 (declaratory relief), and § 2202 (fuer relief). This

25 action arses under the First and Foureenth Amendments to the United States Constitution and

26 under 42 U.S.C. § 1983.

27

3.

Venue is proper pursuant to 28 U.S.C. § 1391

(b) because the California State

28 Prison at San Quentin in San Quentin, Californa, is located in this District. All executions

368536.05

1
COMPLAIT FOR DECLARATORY AND INJUCTIVE RELIEF

1 conducted by the State of Californa ("State") occur at San Quentin. The events giving rise to 2 this complaint wil occur in this District.
3 THE PARTIES

4

4. Plaintiff Pacific News Service ("PNS") is a non-profit media organization,

5 founded in 1969, that reports on, among other things, the application of

the death penalty in

6 California. PNS syndicates daily stories through the AssocÍated Press wire to subscribing

7 mainstream and community newspapers across the United States. PNS stories include feature-

8 length commentary, news analysis, and investigative reporting. PNS also sponsors magazine

9 aricles, books, TV segments and films. Additionally, PNS owns and operates New America

10 Media, an association of hundreds of independent news organzations that cover, at least in part,

11 issues pertaining to ethnic or minority communties. New America Media publishes content

12 generated both internally and from its member organzations. Pacific News Service is interested

13 in disseminating information on what eyewitnesses to Californa executions observe durng the

14 lethal injection process, including but notlimited to whether executed inmates manfest indicia

15 of pain prior to death. PNS is a Californa non-profit corporation based in San Francisco, 16 Califorriia.

17

5. Defendant Jeane S. Woodford is the Acting Secretary ofthe Californa

18 Deparment of Corrections and Rehabilitation ("the Department").

19

6.

Defendant Steven Ornoski is the Warden of

the California State Prison at San

20 Quentin, where the plaintiff

is incarceráted and where the plaintiff's execution is scheduled to

21 occur.

22

7. Plaintiff does not know the true names of Does 1-50 but alleges that they have or

23 will paricipate in plaintiff's execution by virte of

their roles in designing, implementing, and/or

24 carng out the lethal injection process. When plaintiff discovers the Doe Defendants' tre

25 identities, it wil amend its complaint accordingly.

26

27

28

368536.05

COMPLAINT FOR DE

2
CLARA TORY AND INJUCTIVE RELIEF

1 CLAIM

2 VIOLATION OF RIGHT TO BE PRESENT AT, MEANINGFULLY WITNESS, GATHER INFORMATION AT, AND REPORT ON EXECUTIONS PURSUANT TO
3 THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION 4

(42 U.S.C. § 1983)
5
8. Under California law, death sentences shall be carred out by "administration of a
6
lethal gas or by an intravenous injection of a substance or substances in a lethal quàntity

7
suffcient to cause death, by standards established under the direction ofthe Deparent of

8
Corrections." Cal. Penal Code § 3604(a). The statute prescribes no specific drgs, dosages, drug
9
combinations, or the maner of intravenous line access to be used in the execution process; nor
10
does the statute prescribe any certification, training, or licensure required of those who

11

12

paricipate in the execution process. All of

the details ofthe execution process are to be

determined by the Deparment of Corrections and Rehabilitation.

13

9. Since it first adopted a lethal injection protocol in the mid-1990's, the Deparment

14

of Corrections and

Rehabilitation has refused to disclose to the public a complete version ofthe

15

protocol. Additionally, the Department conducts substantial portions oflethal injection

16 i

executions outside of public view and without public disclosure. Thus, although plaintiff is

17

familiar with those signficant aspects ofthe lethal injection protocol and the conduct oflethal

18
injection executions that have been disclosed, plaintiff lacks complete and precise knowledge of
19

(1) the protocol the Departent has adopted; (2) changes to the protocol over time; and (3) 20
whether and to what extent the Departent abides by its own protocol when conducting lethal
21
injection executions. 22

10. On information and belief, San Quentin Operational Procedure No. 770
23

("Procedure 770") is the lethal injection protocol adopted by the Departent and has evolved 24
since it was first adopted in the mid-1990's. Most recently, the Deparment revised Procedure
25

26

770 after its February 21,2006 decision to indefinitely postpone the execution of

Michael

Angelo Morales. The Deparment outlined the revision in skeleton form in a March 3, 2006

27

28

368536.05

3 COMPLAINT FOR DECLARATORY AND INJUCTIVE RELIEF

1 Case Management Conference Statement, fied in Morales v. Woodford, No. C 06 219 IF (N.D.

2 Cal. Jan. 18, 2006), a case curently pending in this Cour.

3

11. On information and belief, Procedure 770, in policy and practice, has remained

4 unchanged since its inception in one critical respect: It provides for execution by injection with a

5 lethal combination of

three chemical substances, in

the following order: first, sodium pentothal, a'

6 short-acting barbituate; second, pancuronium bromide, which paralyzes all voluntar muscles;

7 and third, potassium chloride, which causes cardiac arest.1

8

12.

The intended purose of

the first drg administered in Procedure 770, sòdium

9 pentothal (also known as sodium thiopental), is to render the inmate unconscious and therefore

10 unable to expenence pain. The intended purpose of the third drg, potassium chloride, is to

11 brigabòut the rapid death ofthe inmate by stopping his heart. The intended purose ofthe

12 second drg, pancuronium bromide (also known as Pavulon), is in dispute and is discussed in

13 more detail below. On information and belief, plaintiff alleges that defendants have never

14 provided a legitimate reason for administering pancuronium bromide and that this drug fuctions

15 only to conceal important aspects ofthe execution process from the press and the public.

16

13. Defenda.'1ts Jeanne \Voodford and Steven Omoski, a.'1d Doe Defendants are acting

17 under color of Californa law when promulgating or amending Procedure 770 and when caring

18 out executions.

19

14. A limited number of members of the press and the public are permitted to witness

20 executions. These eyewitnesses serve as surogates for those members of the press and the

21 public who are not able to attend executions personally. Thus, the First Amendment rights of

the

22 public and the press to attend and meaningfully observe executions are effectuated by these

23 surogates.

24

25 1 On information and belief, one potential deviation from this series of drgs took place on

26

February 21,2006, in connection with the execution of

Michael Angelo Morales. On

information and belief, on that day, the Deparment contemplated executing Mr. Morales using 27 only sodium pentothal so as to comply with a condition, imposed in Morales v. Woodford, No. C

06219 JF, for proceeding with the execution. On information and belief, this contemplated 28 revision was never implemented.

368536.05

4 COMPLAINT FOR DECLARATORY AND INJUCTIVE RELIEF

.

¡

1

15.

Death row inates have challenged

Procedure 770, arguing that this protocol,

2 violates constitutional and statutory provisions enacted to prevent cruelty, pain, and torte. As a

3 result, the issue of

whether Procedure 770 ilegally subjects death row inmates to an undue risk

4 of a painful death has received substantial media attention and is of great interest to the public.

5

16. A major controversy surounding Procedure 770 focuses on whether the inmate is

6 properly anaesthetized before dying. Specifically, a substantial question has been raised as to

7 whether Procedure 770 ensures adequate delivery of

sodium pentothal to the inmate's veins. In

8 past challenges to the protocol, inmates have alleged shortcomings in Procedure 770 a.'ld have

9 presented evidence suggesting that prior Californa executions performed under Procedure 770

10 actually subjected inmates to excruciating pain. Defendants ~oodford and Ornoski dispute the

11. allegation that Procedure 770 is flawed as well as the evidence that they or their predecessors

12 have improperly administered the protocol.

13

17. Members of the press and the public who witness executions at San Quentin are

14 unable to observe aspects ofthe execution process historically observed by eyewitnesses ànd

15 reported to the public at large, including, but not limited to, whether the three-drg cocktail .

16 subj ects iP..1Tates to ~"tconstitutionalleveis of pain due to inadequate 3.1'esthesia. TliIs is because

17 pancuronium bromide, the second drg in the lethal injection cocktail, paralyzes all voluntar

18 muscle movement in the inmate. Thus, whether or not the inmate is experiencing pain, his body

19 would remain still and would be incapable of manifesting any pain that is felt. These physical

20 manfestations of

pain include both physical reactions of

the body, such as voluntar or

21 involuntar coordinated muscle movement, and verbal indicia of pain. As a result, pancuronium

22 bromide acts as a chemical curain that conceals indicia of pain from the members ofthe press

23 and the public that are observing the executions.

24

18. Importantly, pancuronium bromide conceals important information from members

25 of

the press and the public whether pain is present or absent. If

the inmate does experience pain,

26 execution witnesseS'

wil not be able to observe the inmate's physicalindicia of

pain because of

27 the inmate's paralysis. If

the inmate is completely anaesthetized and.does not experience pain,

28 execution witnesses wil not be able to determine that either, because the lack of any physical

368536.05 COMPLAIT FOR DECLARTORY

5
AND INJUCTIV RELIEF

1 response will be attbuted to pancuronium bromide, not unconsciousness. Thus, pancuronium

2 bromide masks important information about the presence or absence of pain.

3

19. Additionally, pancuronium bromide masks both disputed and undisputed indicia

4 of pain or consciousness. In the lawsuits brought by death row inmates challenging Procedure
5 770 and in the larger social debate, there are often disputes as to whether certain physical
6 responses durng the lethal injection process by previously executed inmates actually indicate

7 that the inate was conscious and experienced pain while dying. Pancuronium bromide

8 conceals from members of

the public viewing executions both I'fPes of

physical responses-

9 those that could

and could not be reasonably disputed as indicia of pain. The press and

the

10 public are entitled to witness, interpret, and report on both tyes of physical responses.

11

20. Finally, entirely aside from the issue of pain, pancuronium bromide conceals

12 aspects of

the execution process that may be important to the public. For instance, while fighting

13 off the effects of the sedative, sodium pentothal, an inmate may attempt to express sentiments or

14 information unelated to pain, such as repentance or anger. The First Amendment right ofthe

15 public and the press encompasses many types of information in which society may be interested,
1 h. ~nt m",..",h7 thOS'" as"nl"1aterl "71th the 'S""'" nf'pa'" 'ThllS tli'" "nh1,1" "'"d th'" """'S8 "'..'" "'..t,t1"'r1 t'"
.1 v I .L.lV\..1 .IV.. -l.1J \..1.1 "" i.VV.l" U. ,." .1U.. 1..1.1 .I ~u."" '-.1 .1.1....1 .1.1" , L .I"" ,PUVJ..1V u..i \".1..\" l'.l "" u. "" lo.L.U..1LJ.,"U V

17 information unelated to pain that is being concealed by pancuronium bromide.

18

21. On information and belief, pancuronium bromide serves no legitimate fuctional

19 or penological purose in the lethal injection protocol. On information and belief, pancuronium

20 bromide does not affect consciousness, the perception of pain, or the hastening of death. Thus,

21 when administered as provided for in

Procedure 770, pancuronium bromide appears to serve no

22 purose other than concealing important information about the execution process from the public

23 and the press. On information and belief, defendants know that pancuronium bromide's only

24 fuction is to conceal information, but defendants continue to administer the drg despite this

25 knowledge.

26

22. On information and belief, defendants therefore intentionally administer

27 pancuronium bromide to conceal important information from the press and the public. This

28 would not be the first time that defendants and their predecessors incorporated into the lethal

368536.05

6 COMPLAINT FOR DECLARATORY AND INJUCTIVE RELIEF

,

1 injection process procedures intentionally aimed at concealing important information from those
2 viewing the execution. Specifically, in California First Amendment Coalition v. Woodford, 299

3 F.3d 868 (9th Cir. 2002)i the plaintiff

media organization challenged the.

San Quentin Prison and

4 Deparentpolicy of drawing a physical curain in front of

the. lethal injection chamber while

5 prison guards strapped down the inmate and inserted intravenous lines into his ars. On the

6 basis of an internal Department of Corrections memo, the district cour found and the Ninth
7 Circuit affirmed that "Procedure 770 was motivated, at least in part, by a concern that the 8 strapping of a condemned inate, the injection of intravenous lines or other aspects of a lethal 9 injection execution would be perceived as brutal by the public and thus was, to that extent,
10 prompted by considerations other than legitimate concerns for prison personnel safety."
11 California First Amendment Coalition, 299 F.3d at 880.
12 ALLEGATIONS IN SUPPORT OF DECLARTORY AN INJUNCTIV RELIEF

13

23. The inclusion of pancuronium bromide in Procedure 770 necessarly impacts

14 plaintiff's First and Foureenth Amendment rights. Whether or not the lethal injection procedure

15 subjects the inmate to pain, pancuronium bromide prevents the press and the public from

1.. -nIIn-h..t'a"i.'m. ..'.1.b10....t.h. ,.s...,..l.1._fn..r..r.a..t.,.n..n._p....,.l.1a(.'.n._rn-.mv.J'n\m.....b.rLnVm.l;i,.l.".,I'-aVls_n v"n"",v'''ieiva1.Is..It;'-n.Im.l "t'.h1."1,\"0'''p''iS.'"Su'.li"""d1.t\h, oP,u.,u"i..Ii;c
17 disputed indicia of pain and aspects of the execution process unelated to pain. The press and the

18 public are entitled to each of

these types of

information, all of

which are masked by pancuronium

19 bromide. Additionally, defendants administer pancuronium bromide with the intention of

20 concealing information from the press and the public. This

conduct violates plaintiff's First and

21 Foureenth Amendment rights to meaningfully witness and obtain information at executions.

22

24. Procedure 770 results in irreparable injur to plaintiffPNS because the

23 information suppressed and concealed by the

protocol can never be reacquired.

24

25. This complete and permanent loss of socially valuable information to the press

25 and to the public canot be redressed by legal remedies.

26

26. Defendants' prior intentional attempts to conceal information about the execution

27 process from the press and the public weigh in favor of injunctive relief.

28

368536.05

7 COMPLAINT FOR DECLARATORY AND INJUCTIVE RELIEF

1

27.

An actual controversy exists between plaintiff and defendants as to

2 Procedure 770 violates plaintiffs' First Amendment rights.

whether

3
4 PRAYER FOR RELIEF

5 WHEREFORE, plaintiff

Pacific News Service prays for:

6

1. A declaration of the First Amendment rights of plaintiff;

7

2.

Temporar, preliminary, and permanent injunctive relief

to enjoin the defendants,

8 their officers, agents, servants, employees, and all persons acting in concert with them from

9 employing an execution procedute that conceals important information to which plaintiff and the

10 public are constitutionally entitled;

11

3. Reasonable attorneys' fees pursuant to 42 U.S.C. § 1983 and the laws ofthe

12 United States;

13

.4. Costs of suit; and

14

5. Any such other relief as the Court deems just and proper.

15

16 II Dated: March 8, 2006 17
18

A.CLU FOUNA.TION OF
NORTHERN CALIFORN
KEKER & VAN NEST, LLP

19

20

NB. STREET R

21

Attorneys for Plaintiff

PACIFIC NEWS SERVICE 22

23

24

25

26

27

28

368536.05

8
COMPLAINT FOR DECLARATORY AN INJUCTIVE RELIEF

 
 Case 5:06-cv-01793-JF Document 2 Filed 03/08/2006 Page 1 of 4

1 KEKER & VAN NEST, LLP
JON B. STREETER - #101970
2 WENDY J. THU - #163558
AJA Y S. KRSHNAN - #222476
3 KATHERI J. FLOREY - # 241647
710 Sansome Street

4 San Francisco, CA 94111-1704
Telephone: (415) 391-5400
5 Facsimile: (415) 397-7188 E-mail: jstreeter~kvn.com

6

ACLU FOUNATION OF

NORTHERN CALIFORN

7 ALAN SCHLOSSER - # 49957

MICHAEL RISHER - #191627

8 1663 Mission, Suite 460
San Francisco, CA 94103

9 Telephone: (415) 621-2493

Facsimile: (415) 255,.1478

10 E-mail: aschlosser~ac1unc.org

11 Attorneys for Plaintiff PACIFIC NEWS SERVICE
12

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16 II

17

18 PACIFIC NEWS SERVICE,

Case No.

19

Plaintiff,

20

v.

21 JEAN WOODFORD, Acting Secretary of
the Californa Deparent of Corrections; 22 STEVEN W. ORNOSKI, Warden San Quentin
State Prison, San Quentin, CA, and Does 1-50,
23
Defendants. 24

NOTICE OF RELATED CASE; MOTION TO RELATE THIS CASE WITH MORALES Jí WOODFORD, CASE NOS. C
06 219 JF and C 06 926 JF RS

25

26

27

28

367872.01

NOTICE OF RELATED CASE; MOTION TO RELATE CASES CASE NO.

Case 5:06-cv-01793-JF Document 2 Filed 03/08/2006 Page 2 of 4

1 . Pursuant to Civil L.R. 3-12, Plaintiff

Pacific News Service ("PNS") gives notice that

2 Pacifc News Service v. Woodford, et al., Case No.

, is related to Morales v.

3 Woodford, et al., Case Nos. C 06 219 JF and C 06 926 JF RS. PNS hereby moves to relate

4 Pacifc News Service to Morales, a case curently before Judge FogeL. Plaintiff

Michael Angelo

5 Morales does not oppose this motion. See Decl. of Wendy Thur in Supp. of PI. PNS' Motions

6 to Relate Cases, Consolidate, and Shorten Time, ir 10.
7 Pacifc New Service is related to Morales because (1) both cases concern the same

8 "transaction or event," namely the execution of death row inmates under San Quentin
9 Operational Procedure 770 ("Procedure 770"), and (2) conducting the cases before different 10 judges would result in "an unduly burdensome duplication of labor and expense." Civil L.R. 3-
11 12(a).
12 Pacifc News Service raises a challenge to San Quentin Operational Procedure 770
13 ("Procedure 770"), the lethal injection protocol used in Californa executions, based on the First

14 Amendment right of

the press and the public to attend, meanngfully

witness, gather important

15 information at, and report on executions. Plaintiff

Pacific News Service alleges that the use of

16 i pancuropju."l bromide, the second drug ad.-linistered uiider Procedure 770, f.ictIons solely as a

17 "chemical curain" whose purpose is to conceal important information about the execution (such

18 as whether the inmate is or is not experiencing substantial pain) from the members ofthe press

19 and the public viewing the execution.

20 Pacifc News Service and Morales concern the same "transaction or event." Civil L.R. at

21 3-12(a)(1). Both cases raise facial challenges to San Quentin Operational Procedure 770

22 ("Procedure 770"), Californa's method for executing death row inmates. The execution of

Mr.

23 Morales pursuant to Procedure 770 will violate both the claimed Eighth Amendment Rights of

24 Mr. Morales and the claimed First Amendment Rights ofPacific News Service. The same

25 defendants are named in both cases. Additionally, both cases challenge California's

26 administration of

pan cur onium bromide durng the lethal injection procedure.

27 That the cases share a common factual basis is made evident by the Ninth Circuit's

28 evaluation of a similar First Amendment claim in Beardslee v. Woodford, 395 F.3d 1064 (9th

1
367872.01 NOTICE OF RELATED ,CASCEA; SMEOTINONO.TO RELATE CASES

Case 5:06-cv-01793-JF Document 2 Filed 03/08/2006 Page 3 of 4

1 Cir.2005). Beardslee v. Woodford, No. C 04 5381 JF, was a case to which Morales Was related.

2 In Beardslee, another case involving an inmate's Eighth Amendment challenge to Procedure

3 770, the Ninth Circuit focused on the state's lack of

justification for using pancuronium bromide

4 - an issue that is central to PNS' claim. 395 F.3d at 1075-76. Additionally, although that cour

5 did not decide the First Amendment claim because it was only raised in an amicus brief for the

6 first time on appeal, the court nonetheless notedthat the claim "may have merit." Id.at 1076

7 n.14.

8 Moreover, there wil be "an unduly burdensome duplication of labor and expense" if

9 these cases are conducted before different

judges. Civil L.R. at 3-12(a)(1). First, Judge Fogel

10 has already spent considerable time familiarzing himself

with Procedure 770, the chemical

11 pancuronium bromide, and the varousIndicia of

pain durng a lethal injection execution in

12 Morales, as well as in Cooper v. Rimmer, No. C 04436 JF, and Beardslee v.Woodford, No. C 04

13 5381 JF, where the same issues were raised. Conducting Pacifc News Service before a different

14' judge would therefore entail the duplicative expenditue of

judicial resources and labor. .

15 Second, because PNS seeks to consolidate Pacifc News Service with Morales for

16 i plLrposes of discovery and an evidentia.ry hea."¡ng, relating Pactlic .7Iews Service to Morales is a

17 necessary step to realizing the substantial efficiencies consolidation would bring. Specifically,

18 plaintiffs in Morales and Pacifc News Service are likely to seek similar discovery and present

19 similar evidence to the Cour. For example, both PNS and Mr. Morales are likely to seek

20

21

22

23

24

25

26

27

substantial

labor and expense will be avoided by deciding these disputes before a single judge

28 and in a single proceeding.

36787201

2 NOTICE OF RELATED CASE; MOTION TO RELATE CASES
CASE NO.

Case 5:06-cv-01793-JF Document 2 Filed 03/08/2006 Page 4 of 4

1 For these reasons, PlaintiffPNS respectfully requests that the Cour enter an order

2 relating Pacifc News Service, Case No.

to Morales, Case Nos. C 06219 JF and

3 C 06 926 JF RS.

4 Dated: March 8, 2006 5 6

ACLU FOUNATION OF NORTHERN CALIFORN
KEKER& VAN NEST, LLP

7 8

~~ By: WE Y.T

9

Attorneys for Plaintiff

PACIFIC NEWS SERVICE

10

11

12

13

14

15

16 II

17

18

19

20

21

22

23

24

25

26

27

28

367872.01

3 NOTICE OF RELATED CASE; MOTION TO RELATE CASES
CASE NO.

Case 5:06-cv-01793-JF Document 4 Filed 03/08/2006 Page 1 of 5

1 KEKER & VAN NEST, LLP JON B. STREETER - #101970
2 WENDY J. THU - #163558
AJAY S. KRSHNAN - #222476
3 KATHERI FLOREY - # 241647
710 Sansome Street
4 San Francisco, CA 94111-1704
Telephone: (415) 391-5400
5 Facsimile: (415) 397-7188
E-mail: jstreeter(êkv.com 6
ACLU FOUNATION OF NORTHERN CALIFORN 7 ALAN SCHLOSSER - #49957
MICHAL RISHER - #191627
8 1663 Mission, Suite 460
San Francisco, CA 94103
9 Telephone: (415) 621-2493
Facsimile: (415) 255-1478
10 E-mail: aschlosser(êac1unc.org
11 Attorneys for Plaitiffs PACIFIC NEWS SERVICE
12

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORN

16
18 Plaintiff, 17 PACIFIC NEWS SERVICE,
19 v.

20 JEAN S. WOODFORD, Acting Warden,
Secretar ofthe Californa Departent of
21 Corrections; STEVEN W. ORNOSKI, Acting
Warden for the California State Prison at San
22 Quentin,

23

Defendants.

Case No.
MEMORADUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF PACIFIC NEWS SERVICE'S MOTION TO CONSOLIDATE PURSUANT TO Fed.R.Civ.P. 42(a)
Date: Time: Dept: Judge:

24

25

26

27

28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONSOLIDATE CASE NO.

Case 5:06-cv-01793-JF Document 4 Filed 03/08/2006 Page 2 of 5

1

I. INTRODUCTION

2 Pursuant to Federal Rule of

Civil Procedure 42(a), Plaintiff

Pacific News Service

3 ("PNS") hereby moves to consolidate the present action with an earlier filed action now pending

4 before Judge Fogel, Morales v. Woodford, Case Nos. C 06219 JF and C 06 926 IF RS, for

5 puroses of discovery and an evidentiar hearng. Plaintiff

Michael Angelo Morales does not

6 oppose this motion. See Decl. of

Wendy Thur in Supp. ofPl. PNS's Motions to Relate Cases,

7 Consolidate, and Shorten Time,ir 10.

8 Granting this motion would be consistent with the interests of efficiency and judicial
9 economy because both actions involve common factual issues. Additionally, the tWo cases wil 10 involve similar, although not identical discovery.
1 1 PNS is aware that a discovery schedule and evidentiary hearng date have been
12 established in the Morales case and is wiling to conform to this expedited schedule. PNS 13 therefore does not anticipate that consolidation will delay the Morales litigation.

14

II. BACKGROUND

15

On January 18, 2006, Michael Angelo Morales, a death row inmate at San Quentin State

16 Prison set to be executed on February 21,2006, filed a42 D.S.C. § 1983 lawsuit challenging

17 Californa's lethal injection protocol, San Quentin Operational Procedure 770 ("Procedure 770").

18 Morales raised an Eighth Amendment challenge to Procedure 770, alleging that the protocol

19 would subj ect him to an undue risk of suffering excruciating pain while being put to death.

20

Morales offered evidence and raised arguents critical of

Procedure 770's ability to ensure that

21 he would receive sufficient amounts of sodium pentothal, the drg responsible for rendering him

22 unconscious, and therefore unable to feel the otherwise excruciating levels of pain the other two

23

drgs in the lethal

injection protocol would cause him.

24

Among other things, Morales alleged that the prison personnel entrusted with

25 administering the lethal injection lacked the necessary training and experience to ensure that the

26 sodium pentothal would be properly administered. Additionally, Morales attacked Procedure

27

770's use of

pan cur onium bromide, the second drg administered to the inmate, which paralyzes

28 the inmate's voluntar muscle movement. Morales claimed that pancuronium bromide would

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CASE NO.

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1 prevent him from effectively communicating. with prison personnel if the sodium pentothal was

2 riot properly administered and he remained conscious for all or part ofthe execution process,
3 until death.

4 Like Morales' case, PNS's action also raises a federal constitutional challenge to
5 Procedure 770, and to pancuronium bromide's masking effects in particular.l Specifically,

6 plaintiffPNS alleges that pancuronium bromide, which fuctions neither to cause the inmate's

7 death nor to reduce the amount of pain he experiences, is nothing more than a "chemical curain"

8 that conceals important information about the execution process (such as evidence that the

9 inmate is conscious and experiencing pain) from members ofthe press and the public viewing

10 the execution. PNS therefore contends that Procedure 770's inclusion of

pan cur onium bromide

11 violates the First Amendment right of the press and the public to attend, meanngfully witness,

12 gather information at, and report on executions.

13

III. ARGUMENT

14 Rule 42(a) ofthe Federal Rules of

Civil Procedure provides in pertinent par:

15 When actions involving a common question of law or fact are pending before the cour, it may order a joint hearng or tral of any or all the matters in issue in the
16 actions; it may order all the actions consolidated; and it may make such orders
concernng proceeåings therein as may tend to avoid unecessary costs or delay.
17

18 "The distrct cour has broad discretion under this rule to consolidate cases pending in the

19 same distrct." Investors Research Co. v. United States Dist. Court

for Cent. Dist., 877 F.2d 777,

20 777 (9th Cir. 1989). In determinng whether to consolidate, the cour must weigh the savings of

21 time and effort that consolidation would produce against any inconvenience, delay, or expense

22 that it would cause. Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193, cert. denied, 460 U.S.

23 1102 (1983).
24 "(T)ypically, consolidation is favored." Perez-Funez v. District Directors, Immigration

25 and Naturalization Service, 611 F. Supp. 990, 994 (C.D. CaL. 1984) (citations omitted); see also

26 Weitort v. A. H. Bull & Co., 192 F. Supp. 165, 166-167 (B.D. Pa. 1961) (consolidation of actions

27 1 Morales, however, challenges aspects of Procedure 770 other than the use of pancuronium
28 bromide.

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2 MEMORANDUM OF POINS AND AUTHORITIES IN SUPPORT OF MOTION TO CONSOLIDATE
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Case 5:06-cv-01793-JF Document 4 Filed 03/08/2006 Page 4 of 5 1 should be encouraged). Consolidation is especially favored where the actions involve common

4 common questions of fact and law are involved in two actions, they should be consolidated). In

5 the present case, all the factors weigh in favor of consolidation.

6 A.
7

Consolidation Wil Result in Substantial Savings in Time and Resources for the

Parties and the Court

Because the Cases Share Common Factual Questions

Wil Entail Substantial Overlap in Discovery

and

8 Morales and PNS raise several common factual questions: (1) whether and in what ways
9 pancuronium bromide suppresses indicia of pain or consciousness manifested by an inmate
10 subjected to Procedure 770; (2) what indicia of pain or consciousness an inmate would manfest
11 ifpancuronium bromide were not administered; and (3) defendants' reasons for including

12 pancuronium bromide in Procedure 770. Because the indicia of

pain or consciousness that an

13 inmate might

manfest are relevant to PNS's claim, the PNS lawsuit wil necessarly address the

14 mechansms by which Procedure 770 might result in pain, a factual issue central to Morales'

15 Eighth Amendment claim.
16 That corrunon factual issues exist is bolstered by the Ninth Circuit's evaluation of a 17 similar First Amendment claim in Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005). 18 Beardslee v. Woodford, No. C 04 5381 IF, was a case to which Morales was related. In

19 Beardslee, another case involving an inmate's Eighth Amendment challenge to Procedure 770,

20 the Ninth Circuit focused on the state's lack of

justification for using pancuronium bromide - an

21 issue that is central to PNS's claim. 395 F.3d at 1075-76. Additionally, although that cour did

22 not decide the First Amendment claim because it was only raised in an amicus brief for the first

23 time on appeal, the court nonetheless noted that the claim "may have merit." Id. at 1076 n.14.

24 Common factual issues wil also lead to a substantial overlap in discovery. Both PNS

25 and Mr. Morales are likely to seek discovery regarding the nature and administration of

26 Procedure 770, depositions of prison officials who conceived of and administered Procedure 770,

27 and information regarding whether past lethal injection executions pursuant to Procedure 770

28

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1 subjected executed inmates to painful deaths. Duplication of discovery wil therefore be

2 avoided.

3 B. 4

Consolidation Wil Not Cause Unnecessary Delay of the Morales Action Because Pacifc News Service Is Willing to. Conform to this Court's Expedited Schedule

Rule 42( a) specifically provides that when consolidating actions, the Cour "may make

5

such orders concernng proceedings therein as may tend to avoid unecessar costs or delay."

6

Fed. R. Civ. P. 42(a). Based on conversations with counsel for Mr. Morales, PNS is aware of
7

the

discovery schedule and May 2, 2006 hearing date established by this Court for the Morales case.

8

See Declaration
9

of Wendy J. Thurm, ir 5~ PNSis wiling to conform to this case

schedule.

Consolidation would therefore not require the Cour to alter the pace oflitigation in the Morales

10
case, and PNS does not
11

move the Cour to do so.

iv. CONCLUSION
12
Because the varous claims in both actions involve common questions of fact and

13

substantial overlap in discovery, consolidation

of the two actions is appropriate. Accordingly,

14

Pacific News Service respectfully requests the Cour to grant their motion to consolidate for

15

purposes of discovery and an evidentiar hearng, pursuant to Federal Rule of Civil Procedure
16
i 4'"/a~
¿~ ). 17

18
Dated: March 8, 2006
19
20
21

ACLU FOUNATION OF NORTHERN CALIFORNIA
KEKER & V AN NEST, LLP

22

By:

23

WENDY J. T

24

Attorneys for Plain iff PACIFIC NEWS SERVICE

25

26

27

28

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 Case 5:06-cv-01793-JF Document 19 Filed 03/28/2006 Page 1 of 3

1

2

3

4

5

**E-filed 3/27/06**

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12 Michael Angelo MORALES,

Case Number C 06 219 JF RS Case Number C 06 926 JF RS

13

Plaintiff,

DEATH-PENALTY CASE

14

v.

ORDER DENYING MOTION TO

15 Jeanne S. WOODFORD, Acting Secretary of the California Department of Corrections and

CONSOLIDATE WITHOUT PREJUDICE

16 Rehabilitation; Steven W. Ornoski, Acting Warden of San Quentin State Prison; and Does 1-50,

17 Defendants.

18 PACIFIC NEWS SERVICE,

Case Number C 06 1793 JF RS

19

Plaintiff,

DEATH-PENALTY CASE

20 v.

ORDER DENYING MOTION TO

21 Jeanne S. WOODFORD, Acting Secretary of the

CONSOLIDATE WITHOUT PREJUDICE

22 California Department of Corrections and Rehabilitation; Steven W. Ornoski, Acting Warden

23 of San Quentin State Prison; and Does 1-50,

24

Defendants.

[Docket No. 4]

25

26

On January 13, 2006, Plaintiff Michael Angelo Morales filed an action, Morales v.

27 Woodford, No. C 06 219 JF RS, challenging California’s lethal-injection protocol as violating the

28 Eighth Amendment; on February 10, 2006, he filed a second action, Morales v. Woodford, No. C

Case Nos. C 06 219 JF RS, C 06 926 JF RS & C 06 1793 JF RS ORDER DENYING WITHOUT PREJUDICE MOTION TO CONSOLIDATE (DPSAGOK)

Case 5:06-cv-01793-JF Document 19 Filed 03/28/2006 Page 2 of 3

1 06 926 JF RS, which was substantially identical to the first action, for exhaustion purposes; the

2 Court consolidated the two cases on February 13, 2006.

3

Subsequently, on March 8, 2006, Plaintiff Pacific News Service (“PNS”) filed a First

4 Amendment challenge to Defendants’ use of pancuronium bromide as part of the lethal-injection

5 protocol, Pacific News Service v. Woodford, No. C 06 1793 JF RS; PNS alleges that

6 pancuronium bromide acts as a “chemical curtain” over the lethal-injection process, thus denying

7 the public its right to know what actually occurs during an execution. PNS moved to relate and

8 consolidate its action with those filed by Morales. All parties—that is, both Plaintiffs as well as

9 Defendants—agreed that the actions are related; accordingly, on March 9, 2006, the Court

10 granted PNS’s motion insofar as it sought to relate the actions. However, in order to address

11 substantial case-management raised by Defendants, the Court deferred ruling on consolidation

12 and scheduled a hearing for March 21, 2006; at the hearing, the Court requested supplemental

13 briefing. Having reviewed the papers filed by all parties and having considered the oral

14 arguments of counsel presented at the hearing, the Court will deny the motion to consolidate

15 without prejudice.

16

The parties agree that the determination of whether these actions should be consolidated

17 rests solely on practical considerations. Defendants contend that, in light of the expedited

18 schedule that the Court has adopted to resolve Morales, consolidation will complicate discovery

19 and other procedural matters, thereby making management of the present litigation unduly

20 difficult. Thus, despite the fact that not consolidating the actions may leave an unresolved First

21 Amendment challenge to California’s lethal-injection protocol pending even after the conclusion

22 of the proceedings in Morales, Defendants urge the Court to take a deliberate approach to

23 managing these cases, with PNS being addressed after Morales.

24

While the Court is committed to resolving all aspects of the present litigation

25 expeditiously, it will defer to the State’s expressed concerns. Even absent formal consolidation,

26 the Court has considerable discretion in the management of these cases and may coordinate

27

28 2

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Case 5:06-cv-01793-JF Document 19 Filed 03/28/2006 Page 3 of 3

1 various aspects of the cases if and when such coordination is appropriate.1 Accordingly, and

2 good cause therefor appearing, PNS’s motion to consolidate its action with Morales’s actions is

3 denied without prejudice. Any party may bring a renewed motion to consolidate the actions if

4 future developments warrant reconsideration of the appropriateness of consolidation.

5

IT IS SO ORDERED.

6

7 DATED: March 27, 2006 8

__________________________________ JEREMY FOGEL United States District Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
1At the hearing, counsel for Morales expressed the concern that an appeal of the Court’s
26 judgment in Morales might be pending while the PNS action was still unresolved. Because of the closely
related nature of these actions, as well as the Court’s inherent authority to determine the timing of its
27
decisions, the Court considers this scenario unlikely.
28 3

Case Nos. C 06 219 JF RS, C 06 926 JF RS & C 06 1793 JF RS ORDER DENYING WITHOUT PREJUDICE MOTION TO CONSOLIDATE (DPSAGOK)

 
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1 KEKER & VAN NEST, LLP JON B. STREETER - #101970
2 WENDY J. THURM - #163558 AJAY S. KRISHNAN - #222476
3 710 Sansome Street San Francisco, CA 94111-1704
4 Telephone: (415) 391-5400 Facsimile: (415) 397-7188
5 E-mail: jstreeter@kvn.com

6 ACLU FOUNDATION OF NORTHERN CALIFORNIA ALAN L. SCHLOSSER - #49957
7 MICHAEL RISHER - #191627 39 Drumm St.
8 San Francisco, CA 94111 Telephone: (415) 621-2493
9 Facsimile: (415) 255-1478 E-mail: aschlosser@aclunc.org
10 Attorneys for Plaintiff
11 PACIFIC NEWS SERVICE

12 UNITED STATES DISTRICT COURT
13 NORTHERN DISTRICT OF CALIFORNIA
14

15 PACIFIC NEWS SERVICE,
16 Plaintiff,
17 v.
18 JAMES E. TILTON, Secretary of the
19 California Department of Corrections and Rehabilitation; ROBERT L. AYERS, JR.,
20 Warden, California State Prison at San Quentin, San Quentin, CA; ARNOLD
21 SCHWARZENEGGER, Governor, State of California; and Does 1-50,
22 Defendants.
23

Case No. C 06 1793 JF RS
DEATH PENALTY CASE
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [42 U.S.C. § 1983]

24

25

26

27

28

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1

NATURE OF ACTION

2

1. This action is brought pursuant to 42 U.S.C. § 1983 to vindicate the right of the

3 press and the public to attend, meaningfully observe, and gather and report on important

4 information at California executions. These executions are administered by the California

5 Department of Corrections and Rehabilitation and the California State Prison at San Quentin.

6 These institutions, along with the California Governor’s Office, were responsible for developing

7 the lethal injection protocol. The right at issue is guaranteed by the First and Fourteenth

8 Amendments of the United States Constitution and is primarily effectuated by members of the

9 press who are actually present at executions and who serve as surrogates for the press and the

10 public at large. Plaintiff, a media organization that reports on California executions, seeks

11 temporary, preliminary, and permanent injunctive relief to prevent the defendants from executing

12 any death row inmates in a manner that conceals important information to which the public is

13 constitutionally entitled. Specifically, society is constitutionally entitled to see the physical

14 process by which the State puts an executed inmate to death and how the inmate dies. Society’s

15 constitutional right includes having access to the observable physical impact of the lethal

16 procedure on the inmate. Defendants’ use of pancuronium bromide, a paralytic agent that acts as

17 a chemical curtain over the lethal injection process, makes it impossible for witnesses to view

18 adequately the dying process. This lawsuit is not a challenge to the death penalty or to all lethal

19 injection executions. Rather, plaintiff contends that California may not execute death row

20 inmates in a manner that violates the First Amendment rights of the press and of the public. The

21 public requires information in order to make informed decisions, via democratic processes,

22 whether executions should be conducted at all, and if so, how. The First Amendment claim,

23 therefore, vindicates the public’s right of access to information related to that democratic

24 decision-making process.

25

JURISDICTION AND VENUE

26

2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question),

27 § 1343 (civil rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This

28

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1 action arises under the First and Fourteenth Amendments to the United States Constitution and

2 under 42 U.S.C. § 1983.

3

3. Venue is proper pursuant to 28 U.S.C. § 1391(b) because the California State

4 Prison at San Quentin in San Quentin, California, is located in this District. All executions

5 conducted by the State of California (“State”) occur at San Quentin. The events giving rise to

6 this complaint will occur in this District.

7

THE PARTIES

8

4. Plaintiff Pacific News Service (“PNS”) is a non-profit media organization,

9 founded in 1969, that reports on, among other things, the application of the death penalty in

10 California. PNS syndicates daily stories to subscribing mainstream and community newspapers

11 across the United States. PNS stories include feature-length commentary, news analysis, and

12 investigative reporting. PNS also sponsors magazine articles, books, TV segments and films.

13 Additionally, PNS owns and operates New America Media, an association of hundreds of

14 independent news organizations that cover, at least in part, issues pertaining to ethnic or minority

15 communities. New America Media publishes content generated both internally and from its

16 member organizations. Pacific News Service is interested in disseminating information on what

17 eyewitnesses to California executions observe during the lethal injection process. PNS is a

18 California non-profit corporation based in San Francisco, California.

19

5. Defendant James E. Tilton is the Secretary of the California Department of

20 Corrections and Rehabilitation (“the Department”). Tilton or those under his control developed

21 the most recent version of the execution protocol.

22

6. Defendant Robert L. Ayers, Jr. is the Warden of the California State Prison at San

23 Quentin (“San Quentin Prison”). California death row inmates are incarcerated and executed at

24 San Quentin Prison. Ayers or those under his control developed the most recent version of

25 California’s execution protocol.

26

7. Defendant Arnold Schwarzenegger is the Governor of the state of California. His

27 office (“the Governor’s Office”) developed, in conjunction with the other Defendants, the most

28 recent version of California’s execution protocol.

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1

8. Plaintiff does not know the true names of Does 1-50 but alleges that they have or

2 will participate in California executions by virtue of their roles in designing, implementing,

3 and/or carrying out the lethal injection process. When plaintiff discovers the Doe Defendants’

4 true identities, it will amend its complaint accordingly.

5

CLAIM

6 VIOLATION OF RIGHT OF ACCESS TO PUBLIC PROCEEDINGS PROTECTED BY

THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

7

CONSTITUTION

8

(42 U.S.C. § 1983)

9

9. Under California law, death sentences shall be carried out by “administration of a

10 lethal gas or by an intravenous injection of a substance or substances in a lethal quantity

11 sufficient to cause death, by standards established under the direction of the Department of

12 Corrections.” Cal. Penal Code § 3604(a). The statute prescribes no specific drugs, dosages, drug

13 combinations, or the manner of intravenous line access to be used in the execution process; nor

14 does the statute prescribe any certification, training, or licensure required of those who

15 participate in the execution process. All of the details of the execution process were determined

16 by the Department, its subsidiary, San Quentin Prison, and the Governor’s Office.

17

11. San Quentin Operational Procedure No. 770 (“Procedure 770”) is the lethal

18 injection protocol adopted by the Department and has evolved since it was first adopted in the

19 mid-1990’s. There have been two recent revisions of Procedure 770. First, the Department

20 revised Procedure 770 after its February 21, 2006 decision to postpone indefinitely the execution

21 of Michael Angelo Morales. This revision was issued on March 16, 2006. The most recent

22 revision of Procedure 770—and the version on which this complaint is based—was issued on

23 May 15, 2007. Neither revision enacted changes that are material to PNS’s First Amendment

24 claim.

25

12. Procedure 770, in policy and practice, has remained unchanged since its inception

26 in one critical respect: It provides for execution by injection with a lethal combination of three

27 chemical substances, in the following order: first, sodium pentothal, a short-acting barbiturate;

28

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1 second, pancuronium bromide, which paralyzes all voluntary muscles; and third, potassium

2 chloride, which causes cardiac arrest.

3

13. The intended purpose of the first drug administered in Procedure 770, sodium

4 pentothal (also known as sodium thiopental), is to render the inmate unconscious and therefore

5 unable to experience pain. The intended purpose of the third drug, potassium chloride, is to

6 bring about the rapid death of the inmate by stopping his heart. The intended purpose of the

7 second drug, pancuronium bromide (also known as Pavulon), is in dispute and is discussed in

8 more detail below. The parties agree, however, that one intended purpose and effect of

9 pancuronium bromide is to induce paralysis. Defendants have also publicly admitted that at least

10 one reason for using pancuronium bromide is to conceal “involuntary muscle movement” with

11 unpredictable consequences. Ultimately, Defendants have never provided a constitutionally

12 legitimate and justifiable reason for administering pancuronium bromide. The primary apparent

13 function of this drug is to conceal important aspects of the execution process from the press and

14 the public.

15

14. Defendants Tilton, Ayers, and Schwarzenegger, and the Doe Defendants are

16 acting under color of California law when promulgating or amending Procedure 770 and when

17 carrying out executions.

18

15. A limited number of members of the press and the public are permitted to witness

19 executions. These eyewitnesses serve as surrogates for those members of the press and the

20 public who are not able to attend executions personally. Thus, the First Amendment rights of the

21 public and the press to attend and meaningfully observe executions are effectuated by these

22 surrogates.

23

16. Death row inmates have challenged Procedure 770, arguing that this protocol

24 violates constitutional and statutory provisions enacted to prevent cruelty, pain, and torture. As a

25 result, the issue of whether Procedure 770 illegally subjects death row inmates to an undue risk

26 of a painful death has received substantial media attention in California and nationwide, and is of

27 great interest to the public.

28

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1

17. Members of the press and the public who witness executions at San Quentin are

2 unable to observe and report on significant aspects of the execution process historically observed

3 by eyewitnesses and reported to the public at large. This is because pancuronium bromide, the

4 second drug in the lethal injection cocktail, paralyzes all movement of the inmate’s voluntary

5 muscle fibers.

6

18. One example of information that the public historically had access to when

7 viewing executions is the process of dying. Historically, members of the public had the ability to

8 observe the manner in which the executed inmate’s body responded to those instrumentalities

9 that brought about his death. For instance, during executions by the firing squad, hanging, and

10 electrocution, witnesses were historically able to see the way in which the inmate’s body

11 responded to the lethal apparatus or instrumentality. As the Ninth Circuit put it, “The public and

12 press historically have been allowed to watch the condemned inmate enter the execution place,

13 be attached to the execution device and then die.” California First Amendment Coalition v.

14 Woodford, 299 F.3d 868, 876 (9th Cir. 2002). The use of pancuronium bromide during the lethal

15 injection process in the context of Procedure 770 prevents society from watching, in a

16 meaningful way, executed inmates die.

17

19. Another example of information that is concealed from the public as a result of

18 pancuronium bromide is information about the humaneness of the lethal injection process—

19 namely, whether the inmate experiences pain, and if so, how much. A major controversy

20 surrounding Procedure 770 focuses on whether the inmate is properly anaesthetized before

21 dying. Specifically, a substantial question has been raised as to whether Procedure 770—either

22 as written or as carried out—ensures adequate delivery of sodium pentothal to the inmate. In

23 past and current challenges to the protocol, inmates have alleged shortcomings in Procedure 770,

24 suggesting that prior California executions performed under Procedure 770 actually subjected

25 inmates to excruciating pain. But the inclusion of pancuronium bromide in the protocol renders

26 the inmate incapable of showing any pain: his body will remain motionless whether or not he

27 experiences pain. The pancuronium bromide will suppress important information, including

28 both physical reactions of the body, such as voluntary or involuntary coordinated muscle

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1 movement, and verbal indicia of pain. As a result, pancuronium bromide acts as a chemical

2 curtain that conceals indicia of pain from the members of the press and the public that are

3 observing the executions.

4

20. Importantly, pancuronium bromide conceals important information from members

5 of the press and the public whether pain is present or absent. If the inmate does experience pain,

6 execution witnesses will not be able to observe the inmate’s physical indicia of pain because of

7 the inmate’s paralysis. If the inmate is completely anaesthetized and does not experience pain,

8 execution witnesses will not be able to determine whether the lack of any physical response is a

9 result of pancuronium bromide or of unconsciousness. Thus, pancuronium bromide masks

10 important information about the presence or absence of pain.

11

21. Additionally, pancuronium bromide masks both disputed and undisputed indicia

12 of pain or consciousness. In the lawsuits brought by death row inmates challenging Procedure

13 770 and in the larger social debate, there are often disputes as to whether or not an inmate’s

14 physical responses during the execution process indicate that the inmate was conscious and

15 experienced pain while dying. For instance, litigants and interested members of society regularly

16 debate whether prolonged lethal injection executions, where breathing persists several minutes

17 after the anesthetic is administered, constitute evidence of a botched execution. Pancuronium

18 bromide conceals from members of the public viewing executions both types of physical

19 responses—those that could and could not be reasonably disputed as indicia of pain. The press

20 and the public are entitled to witness, interpret, and report on both types of physical responses.

21 Thus, the First Amendment right protects access to information that may or may not be relevant

22 to a Court’s determination as to whether or not an inmate experiences pain.

23

22. Aside from the issue of pain, society also has an interest in observing portions of

24 the execution process that could be perceived as undignified or inhumane. As an example, the

25 guillotine, as a method of execution, may well be painless. Nonetheless, society has an interest

26 in observing the physical effect of a guillotine on the body of an executed inmate because many

27 members of society may find these effects to be undignified or inhumane.

28

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1

23. Finally, there is still other socially relevant information—unrelated to the process

2 of dying, indicia of pain, and humaneness or indignity—that may be important to the public. For

3 instance, while fighting off the effects of the sedative, sodium pentothal, an inmate may attempt

4 to express sentiments or information unrelated to pain, such as repentance, confession, anger, or

5 defiance. The First Amendment right of the public and the press encompasses these types of

6 information as well.

7

24. Either pancuronium bromide serves no legitimate functional or penological

8 purpose in the lethal injection protocol, or any incidental legitimate function that it does serve is

9 outweighed by its effect of concealing information that the First Amendment protects.

10 Pancuronium bromide does not meaningfully affect consciousness or the perception of pain.

11 And, when administered as provided for in Procedure 770, it does not hasten death. Thus,

12 pancuronium bromide appears to serve no purpose other than concealing important information

13 about the execution process from the public and the press. Defendants know that pancuronium

14 bromide’s only function is to conceal information, but defendants continue to administer the drug

15 despite this knowledge.

16

22. Defendants therefore intentionally administer pancuronium bromide to conceal

17 important information from the press and the public. This would not be the first time that

18 defendants and their predecessors incorporated into the lethal injection process procedures

19 intentionally aimed at concealing important information from those viewing the execution.

20 Specifically, in California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir.

21 2002), the plaintiff media organization challenged the San Quentin Prison and Department policy

22 of drawing a physical curtain in front of the lethal injection chamber while prison guards

23 strapped down the inmate and inserted intravenous lines into his arms. On the basis of an

24 internal Department of Corrections memo, the district court found and the Ninth Circuit affirmed

25 that “Procedure 770 was motivated, at least in part, by a concern that the strapping of a

26 condemned inmate, the injection of intravenous lines or other aspects of a lethal injection

27 execution would be perceived as brutal by the public and thus was, to that extent, prompted by

28

397523.01

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO. C 06 1793 JF RS

Case 5:06-cv-01793-JF Document 63 Filed 06/28/2007 Page 9 of 10

1 considerations other than legitimate concerns for prison personnel safety.” California First

2 Amendment Coalition, 299 F.3d at 880.

3

ALLEGATIONS IN SUPPORT OF DECLARATORY AND INJUNCTIVE RELIEF

4

23. The inclusion of pancuronium bromide in Procedure 770 necessarily impacts

5 Plaintiff’s First and Fourteenth Amendment rights. Pancuronium bromide prevents the press and

6 the public from obtaining various categories of information, including information about the

7 dying process, about pain, about the humaneness and dignity of the process, and about still other

8 information that society values. The press and the public are entitled to each of these types of

9 information, all of which are masked by pancuronium bromide. Additionally, Defendants

10 administer pancuronium bromide with the intention of concealing information from the press and

11 the public. This conduct violates plaintiff’s First and Fourteenth Amendment rights to

12 meaningfully witness and obtain information at executions.

13

24. Procedure 770 results in irreparable injury to plaintiff PNS because the

14 information suppressed and concealed by the protocol can never be reacquired.

15

25. This complete and permanent loss of socially valuable information to the press

16 and to the public cannot be redressed by legal remedies.

17

26. Defendants’ prior intentional attempts to conceal information about the execution

18 process from the press and the public weigh in favor of injunctive relief.

19

27. An actual controversy exists between plaintiff and defendants as to whether

20 Procedure 770 violates plaintiffs’ First Amendment rights.

21

22

PRAYER FOR RELIEF

23

WHEREFORE, plaintiff Pacific News Service prays for:

24

1. A declaration of the First Amendment rights of plaintiff;

25

2. Temporary, preliminary, and permanent injunctive relief to enjoin the defendants,

26 their officers, agents, servants, employees, and all persons acting in concert with them from

27 employing an execution procedure that conceals important information to which plaintiff and the

28 public are constitutionally entitled;

397523.01

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO. C 06 1793 JF RS

Case 5:06-cv-01793-JF Document 63 Filed 06/28/2007 Page 10 of 10

1

3. Reasonable attorneys’ fees pursuant to 42 U.S.C. § 1983 and the laws of the

2 United States;

3

4. Costs of suit; and

4

5. Any such other relief as the Court deems just and proper.

5

6 Dated: June 28, 2006 7 8

ACLU FOUNDATION OF NORTHERN CALIFORNIA
KEKER & VAN NEST, LLP

9

By: /s/ Wendy J. Thurm

10

WENDY J. THURM

Attorneys for Plaintiff

11

PACIFIC NEWS SERVICE

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

397523.01

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO. C 06 1793 JF RS

 
 Case3:06-cv-01793-RS Document66 Filed07/17/07 Page1 of 10

1 EDMUND G. BROWN JR. Attorney General of the State of California
2 DAVID S. CHANEY Chief Assistant Attorney General
3 FRANCEST.GRUNDER Senior Assistant Attorney General
4 THOMAS S. PATTERSON Supervising Deputy Attorney General
5 MICHAEL J. QUINN, State Bar No. 209542 Deputy Attorney General
6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004
7 Telephone: (415) 703-5726 Fax: (415) 703-5843
8 Email: Michae1.Quinn@doj.ca.gov

9 Attorneys for Defendants Tilton, Ayers, and Schwarzenegger
10

11 IN THE UNITED STATES DISTRICT COURT
12 FOR THE NORTHERN DISTRICT OF CALIFORNIA
13 SAN JOSE DIVISION
14

15 PACIFIC NEWS SERVICE,

C 06-1793 JF

16

Plaintiff,

17

v.

18 JAMES E. TILTON, Secretary of the California Department of Corrections and Rehabilitation;
19 ROBERT L. AYERS, JR., Warden, California State Prison at San Quentin, San Quentin, CA; ARNOLD
20 SCHWARZENEGGER, Governor, State of California; and Does 1-50,
21 Defendants.
22

23

24

25

26

27

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS THE FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER FRCP 12(b)(6) FOR FAILURE TO STATE A CLAIM OR, IN THE ALTERNATIVE, UNDER FRCP 12(b)(I) FOR LACK OF SUBJECT-MATTER JURISDICTION

Hearing: September 21, 2007

Time: 9:00 a.m.

Courtroom: 3

Judge:

The Honorable

Jeremy Fogel

28 / / /

Defs.' Memo. P&A. Supp. Mot. Dismiss
1

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Case3:06-cv-01793-RS Document66 Filed07/17/07 Page2 of 10

1

Defendants Tilton, Ayers, and Schwarzenegger (Defendants) submit their Memorandum of

2 Points and Authorities in Support of their Motion to Dismiss the first amended complaint under

3 FRCP 12(b)(6) for failure to state a claim or, in the alternative, under FRCP 12(b)(1) for lack of

4 subject matter jurisdiction.

5

I.

6

INTRODUCTION

7

In California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002)

8 (CFAC), the Ninth Circuit defined the press and the public's right to view executions under the

9 First Amendment. There, the court concluded that the press and the public have the right to view

10 executions from the moment the condemned is escorted into the execution chamber, including

11 those initial procedures that are inextricably intertwined with the process ofputting the

12 condemned inmate to death. CFAC, 299 F.3d at 877.

13

Plaintiffs first amended complaint, which alleges that pancuronium bromide functions as a

14 "chemical curtain" that conceals information from the press and the public, does not state a claim

15 upon which relief can be granted. The use of pancuronium bromide during a lethal injection

16 execution does not impede the right that was defined in CFA C, because that drug does not affect

17 Plaintiffs ability to watch the condemned inmate enter the execution chamber, be attached to the

18 execution device, and then die. CFAC, 299 F.3d at 876. Nothing in CFAC gives Plaintiff the

19 right to dictate the method that the State uses in order to perform a lethal-injection execution.

20 Accordingly, because the first amended complaint fails to set forth a legally cognizable claim

21 under the First Amendment, it should be dismissed.

22

In the alternative, even if this Court finds that the first amended complaint sets forth a

23 legally sufficient claim, it should still be dismissed on ripeness grounds. The ripeness doctrine

24 seeks to avoid the premature adjudication of cases when the issues posed are not fully formed.

25 Here, Plaintiffs complaint assumes that both the revised lethal injection protocol and the use of

26 pancuronium bromide are constitutional. However, because both the revised protocol and the

27 utilization ofpancuronium bromide have been challenged in the Morales action, it is unclear

28 whether Defendants will be able to use pancuronium bromide when it next performs a lethal-

Defs.' Memo. P&A. Supp. Mot. Dismiss
2

Pacific News Service v. Tilton, et al. C 06-1793 JF

Case3:06-cv-01793-RS Document66 Filed07/17/07 Page3 of 10

1 injection execution. Accordingly, because the claims set forth in Plaintiffs first amended

2 complaint are not sufficiently focused to permit judicial resolution, they are not ripe, and should

3 be dismissed without prejudice.

4

li

5

STATEMENT OF ISSUES

6 1. Whether Plaintiffs first amended complaint states a claim upon which relief can be granted.

7 2. Whether Plaintiffs first amended complaint is ripe for judicial resolution.

8

III.

9

STATEMENT OF FACTS

10

In its amended complaint for declaratory and injunctive relief, Plaintiff, a media

11 organization that reports on California executions, seeks temporary, preliminary, and permanent

12 injunctive relief to prevent Defendants from executing any death row inmates in a manner that

13 conceals important information to which the public is constitutionally entitled. (Amended

14 Complaint [Am. Compl.] at 1:10-13.)

15

Plaintiff contends that Defendants' use of pancuronium bromide, a paralytic agent that

16 allegedly acts as a "chemical curtain" over the lethal-injection process, makes it impossible for

17 witnesses to "view adequately" the dying process. (Am. CompI. at 1:16-18.) PNS alleges that

18 pancuronium bromide (1) prevents society from watching, in a meaningful way, executed

19 inmates die (Am. CompI. at 5:14-16); (2) suppresses information about whether the inmate

20 experiences pain, and if so, how much (Am. CompI. at 5:17-19); (3) conceals information from

21 members of the press and the public about whether pain is present or absent (Am. CompI. at 6:4-

22 5); and (4) masks both disputed and undisputed indicia of pain or consciousness (Am. CompI. at

23 6:11-12). PNS also alleges that the use of pancuronium bromide prevents the public and the

24 press from obtaining other "socially relevant information," including an inmate's attempt to

25 express "repentance, confession, anger or defiance" while fighting off the effects of the sodium

26 pentothal. (Am. CompI. at 7:1-6.)

27 / / /

28 / / /

Defs.' Memo. P&A. Supp. Mot. Dismiss
3

Pacific News Service v. Tilton, et al. C 06-1793 JF

Case3:06-cv-01793-RS Document66 Filed07/17/07 Page4 of 10

1

IV.

2

STANDARD OF REVIEW

3 A. The Standards for Rule 12(b)(6) and 12(b)(1) motions

4

A Rule 12(b)(6) motion tests the "legal sufficiency of the claim or claims stated in the

5 complaint." Beliveau v. Caras, 873 F. Supp. 1393, 1395 (C.D. Cal. 1995) (quoting Schwarzer,

6 Tashima and Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial,

7 §9:187 (1994». Although Federal Rule of Civil Procedure 8(a)(2) does not require a complaint

8 to contain specific facts, it does require the complaint to plead "enough facts to state a claim to

9 reliefthat is plausible on its face." Bell Atlantic Corp. v. Twombly, _ U.S. _, 127 S. Ct. 1955,

10 1974 (2007) (abrogating the "no set of facts" language of Conley v. Gibson, 355 U.S. 41, 45-46

11 (1957». In other words, Plaintiffis obligated to provide "more than labels and conclusions, and a

12 formulaic recitation of the elements of a cause of action." Id. at 1964-65. The complaint has to

13 have enough factual allegations "to raise a right to relief above the speculative level." Id. at 1965.

14

Federal Rule of Civil Procedure 12(b)(1) allows a defendant to seek dismissal of an action

15 for lack of subject matter jurisdiction. The plaintiff has the burden to allege in his complaint

16 "whatever is essential to federal jurisdiction." Smith v. McCullough, 270 U.S. 456, 459 (1926).

17 Ifthe plaintiff fails to do so and the defendant brings the deficiency to the court's attention, the

18 court "must dismiss the case, unless the defect be corrected by amendment." Id

19

V.

20

ARGUMENT

21 A. 22 23 24

THE FIRST AMENDED COMPLAINT SHOULD BE DISMISSED, BECAUSE IT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

1.

v. The Decision in California First Amendment Coalition Woodford

Establishes the First Amendment Right of the Press and the Public to View

an Execution.

25 In California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002)
26 (CFAC), the Ninth Circuit examined the extent to which the public and the press are entitled to
27 view an execution. There, the press plaintiffs challenged a procedure that prohibited witnesses
28

Defs.' Memo. P&A. Supp. Mot. Dismiss
4

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Case3:06-cv-01793-RS Document66 Filed07/17/07 Page5 of 10

1 from observing an execution until after the execution team had brought the condemned into the

2 chamber, inserted the intravenous lines, and left him alone to await the order to dispense the

3 chemicals. Id. at 870. The court found that the "public and press historically have been allowed

4 to watch the condemned inmate enter the execution place, be attached to the execution device,

5 and then die." Id. at 876. The court found that historical tradition strongly supported the

6 public's First Amendment right to view the condemned as the guards escorted him into the

7 chamber, strapped him to the gurney, and inserted the intravenous lines. fd. The court, therefore,

8 held that the public enjoyed a First Amendment right to view executions from the moment the

9 condemned is escorted into the execution chamber, including those "initial procedures" that are

10 inextricably intertwined with the process of putting the condemned inmate to death. Id. at 877.

11

Plaintiffs first amended complaint fails to set forth any violation ofthe First Amendment

12 or any other claim upon which relief can be granted, since the state's use of pancuronium does

13 not restrict Plaintiffs access to or ability to view an execution. Moreover, nothing in the CFAC

14 decision gives Plaintiff the power to dictate the particular drugs that the State can use in order to

15 perform an execution by lethal injection.

16

a. The Use of Pancuronium Bromide does not Violate Plaintiff's First

Amendment Right to Observe an Execution.

17

As mentioned, under CFAC, Plaintiff has the right to view executions "from the moment

18

the condemned enters the execution chamber through, to and including, the time the condemned

19

is declared dead." CFAC, 299 F.3d at 885-86. In its amended complaint, Plaintiff asserts that

20

"pancuronium bromide acts as a chemical curtain that conceals indicia of pain from the members

21

of the press and the public that are observing the executions." (Am. CompI. at 6:1-3.) Plaintiff

22

also contends that pancuronium bromide is administered with the intention of concealing

23

information from the press and the public. (Am. CompI. at 8:9-12.)

24

Even ifthis Court accepts as true all of Plaintiffs allegations regarding the use of

25

pancuronium bromide (which it must when analyzing a Rule 12(b)(6) motion), the amended

26

complaint fails to set forth a claim upon which relief can be granted. Defendants' use of

27

pancuronium bromide during a lethal injection execution does not impede Plaintiffs ability to

28

Defs.' Memo. P&A. Supp. Mot. Dismiss
5

Pacific News Service v. Tilton, et al. C 06-1793 JF

Case3:06-cv-01793-RS Document66 Filed07/17/07 Page6 of 10

1 exercise the First Amendment right to view executions that was delineated in CFAC. To the

2 contrary, Plaintiff, under the revised version ofO.P. 770, has the right to examine the execution

3 process from the moment the condemned is escorted into the lethal injection chamber, and has no

4 restrictions on what it may observe, publish, or choose to withhold. Nothing in Plaintiffs

5 amended complaint suggests that Plaintiff will be denied the opportunity to view every aspect of

6 the execution procedure authorized by the courts. Because the administration of pancuronium

7 bromide does not hinder Plaintiffs right of access to view a lethal injection execution, the

8 amended complaint does not state a claim that merits relief.

9

b. Nothing in the CFACDecision Permits the Press or the Public to

Define How an Execution Should be Conducted.

10

Although Plaintiff has the right to observe an execution from the moment the condemned

11

is led into the execution chamber, the CFAC decision does not provide the press or the public

12

with the right to dictate how the state performs an execution or manipulate what is being

13

observed. lfthe State were planning to execute a condemned inmate by electric chair, hanging or

14

firing squad, Plaintiff would have a right to attend and view the proceedings under CFAC.

15

However, in those situations, Plaintiff would not have a First Amendment right to challenge the

16

amount of electricity used to execute the condemned inmate, the number of bullets used by a

17

firing squad, or the type of rope employed in a hanging on the grounds that a different method

18

would enable Plaintiff to better view the "dying process" or to observe the physical impact of the

19

procedures on the inmate. (Am. CompI. at 1:14-18.) Plaintiff similarly lacks a First Amendment

20

right to object to the use of pancuronium bromide in the course of a lethal injection execution on

21

those grounds.

22

The U.S. Supreme Court has recognized that the Constitution does not accord the press

23

special access to information not shared by members of the public generally. Pell v. Procunier,

24

417 U.S. 817, 834 (1974). In objecting to the use of pancuronium bromide, Plaintiff demands

25

more than special access-it seeks the unprecedented right to alter the method used by the State in

26

order to perform a lethal injection execution. However, because Plaintiffs only interest under

27

the First Amendment is viewing the execution that is actually provided by the State, rather than

28

Defs.' Memo. P&A. Supp. Mot. Dismiss
6

Pacific News Service v. Tilton, et al. C 06-1793 JF

Case3:06-cv-01793-RS Document66 Filed07/17/07 Page7 of 10

1 viewing some other execution comporting more closely to its preferences, the first amended

2 complaint does not state a claim for relief. If CFA C were read as Plaintiff urges, every execution

3 would be subject to challenges on the theory that it "masks" or places a "curtain" over what

4 would occur if the execution were only conducted differently. Furthermore, every change in the

5 execution process would provide a basis for challenging the next execution. Accordingly,

6 because the First Amendment does not provide Plaintiff with the sweeping power to change the

7 State's execution methods, the first amended complaint should be dismissed.

8
B. IN THE ALTERNATIVE, THIS SUIT SHOULD STILL BE DISMISSED FOR

9

LACK OF SUBJECT MATTER JURISDICTION BECAUSE PLAINTIFF'S

CLAIM IS NOT RIPE.

10

1. Plaintiff has the Burden of Establishing that its Claim is Ripe.

11

Even if federal-question jurisdiction may be established by pleading a substantial

12

constitutional claim, the claim must still be ripe for review before a court will exercise

13

jurisdiction. Association ofAmerican Med. Colleges v. United States, 217 F.3d 770, 784, n.9

14

(9th Cir. 2000). Whether statutory or constitutional in origin, an unripe claim is not justiciable.

15

Id. A cause of action presumptively lies outside of a federal court's limited jurisdiction, and the

16

"burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v.

17

Guardian Life Ins. Co. ofAmerica, 511 U.S. 375, 377 (1994) (quoting McNutt v. General Motors

18

Acceptance Corp., 298 U.S. 178, 182-83 (1936)). Accordingly, in the instant action, Plaintiff has

19

the burden of establishing that its claim is ripe.

20

2. Because Plaintiff's Claim Is Not Ripe, It Must Be Dismissed Without Prejudice.

21

The ripeness doctrine determines the time, if any, at which a party may seek pre-

22

enforcement review of a statute or regulation. Triple G Landfills, Inc. v. Board ofCommrs., 977

23

F.2d 287,289 (7th Cir. 1992). It seeks to avoid the premature adjudication of cases when the

24

issues posed are not fully formed, or when the nature and extent of the statute's application are

25

uncertain. Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967). Inquiries into ripeness

26

generally address two factors: first, whether the relevant issues are sufficiently focused to permit

27

judicial resolution without further factual development; and, second, whether the parties would

28

Defs.' Memo. P&A. Supp. Mot. Dismiss
7

Pacific News Service v. Tilton, et al. C 06-1793 JF

Case3:06-cv-01793-RS Document66 Filed07/17/07 Page8 of 10

1 suffer any hardship by the postponement ofjudicial action. Id. at 149.

2

An analysis of the two ripeness "factors" in the instant action establishes that Plaintiffs

3 claim is not ripe for review, and should be dismissed without prejudice.

4

a. Plaintiff's Claims Are Not Fit For Judicial Decision, Since It Is

Unclear Whether the Revised Version of o.r, 770 Will Be

5

Implemented.

6

A federal court should normally refrain from resolving issues involving "contingent

7 future events that may not occur as anticipated, or indeed may not occur at all." Clinton v.

8 Acequia, Inc., 94 F.3d 568, 572 (9th Cir. 1996). The ripeness doctrine requires a live, focused

9 case ofreal consequence to the parties. Triple G Landfills, Inc., 977 F.2d at 291.

10

Plaintiffs claim is dependent on a "contingent future event that may not occur as

11 anticipated, or ... at all," namely, a conclusion by this Court that the revised version of O'P. 770

12 and Defendants' use ofpancuronium bromide as part ofthe lethal injection protocol may be

13 implemented because it is valid under the Eighth Amendment. In Morales v. Tilton, condemned

14 inmate Morales claims that the "protocol and actual practice by which lethal injection executions

15 are performed under Procedure No. 770 violates constitutional and statutory provisions enacted

16 to prevent cruelty, pain and torture." Morales v. Tilton, 06-219 JF (N.D. Ca1.), Third Am.

17 Comp1. at 3:27-4:2. Moreover, Morales claims that the use of pancuronium bromide to paralyze

18 condemned inmates greatly increases the risk that an inadequately sedated prisoner will be

19 subjected to a painful and protracted death, and will cause an unnecessarily painful death. Id. at

20 18:19-22.

21

Because virtually every portion of the revised version of a.p. 770, including the use of

22 pancuronium bromide, has been challenged in the Morales case, the issues raised by Plaintiff in

23 this case are not sufficiently focused to permit judicial resolution. Although Defendants believe

24 the revised version of O'P, 770 is constitutional, it has not yet been approved by this Court.
25 Indeed, there is a possibility that this Court could rule in Morales that the revised version of a.p.

26 770 or the protocol's inclusion of pancuronium bromide as one of the three drugs used to execute

27 an inmate violates the Eighth Amendment. Accordingly, because Plaintiffs case hangs on

28 "future contingencies that mayor may not occur," the case is not yet ripe for judicial revievv.

Defs.' Memo. P&A. Supp. Mot. Dismiss
8

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Case3:06-cv-01793-RS Document66 Filed07/17/07 Page9 of 10

1 Clinton, 94 F.3d at 572.

2

b. Plaintiff will not Suffer any Hardship if Judicial Action is Postponed

in this Case.

3 Plaintiff will not experience hardship if this Court withholds consideration of the claims

4 raised in the amended complaint. To the contrary, postponing action would actually be

5 advantageous to both the parties and the court. The parties would benefit because they would not

6

have to spend time and money propounding written discovery upon each other, taking

7 depositions, and filing motions until this Court has determined that the use of pancuronium

8 bromide in the lethal injection protocol is permitted under the Eighth Amendment. Moreover,

9

the Court would be able to avoid ruling on motions and other filings until it has found that the

10

Eighth Amendment does not bar the State from using pancuronium bromide in the lethal

11

injection process.

12

Plaintiff will not suffer financial, legal, or any other hardship if the adjudication of their

13

claim is postponed until after a decision has been issued in Morales. Moreover, adjudicating

14
Plaintiffs claim while a.p. 770 and the use of pancuronium bromide is being litigated in the

15 Morales action would be a poor use of both the parties' and this Court's resources. Accordingly,

16 Plaintiff should not be allowed to pursue its claims until after a decision in Morales has been

17

issued by this Court.

18
VI.

19

CONCLUSION

20

The press and the public have the right to view executions from the moment the

21

condemned enters the chamber until he is declared dead. Because the use of pancuronium

22

bromide does not impede Plaintiff's ability to view a lethal injection execution, Plaintiff's first

23

amended complaint does not state a claim upon which relief can be granted. Accordingly, the

24

first amended complaint should be dismissed.

25

/II

26

/II

27

/II

28

Defs.' Memo. P&A. Supp. Mot. Dismiss
9

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Case3:06-cv-01793-RS Document66 Filed07/17/07 Page10 of 10

1

In the alternative, the Court should dismiss this case for lack of subject matter jurisdiction

2 because the complaint will not be ripe for judicial resolution until a ruling has been issued in the'

3 Morales case.

4

5

Dated: July 17, 2007

6

Respectfully submitted,

7

EDMUND G. BROWN JR.

Attorney General of the State of California

8

DAVID S. CHANEY

Chief Assistant Attorney General 9
FRANCEST.GRUNDER

10

Senior Assistant Attorney General

THOMAS S. PATTERSON

11

Supervising Deputy Attorney General

12

13

14

15

Deputy Attorney General

Attorneys for Defendants

16

Tilton, Ayers, and Schwarzenegger

17

18 20092892.wpd
SF2006402675
19

20

21

22

23

24

25

26

27

28

Defs.' Memo. P&A. Supp. Mot. Dismiss

. 10

Pacific News Service v. Tilton, et al. C 06-1793 JF

 
 ase 5:06-cv-01793-JF Document 36-1 Filed 06/20/2006 Page 1 of 19

KEKER & VAN NEST, LLP JON B. STREETER - #101970 2 WENDY 1. THURM - #163558 AJAY S. KRISHNAN - #222476 3 KATHERINE FLOREY - # 241647
710 Sansome Street 4 San Francisco, CA 94111-1704
Telephone: (415) 391-5400 5 Facsimile: (415) 397-7188
E-mail: jstreeter@kvn.com 6
ACLU FOUNDATION OF NORTHERN CALIFORNIA 7 ALAN SCHLOSSER - #49957
MICHAEL RISHER - #191627 8 1663 Mission, Suite 460
San Francisco, CA 94103 9 Telephone: (415) 621-2493
Facsimile: (415) 255-1478 10 E-mail: aschlosser@aclunc.org

11 Attorneys for Plaintiff PACIFIC NEWS SERVICE
12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

SAN JOSE DIVISION

16

17 PACIFIC NEWS SERVICE,

Case No. C 06 1793 JF RS

18

19

v.

Plaintiff,

PLAINTIFF PACIFIC NEWS SERVICE'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS COMPLAINT

20 JAMES E. TILTON, Acting Secretary of the California Department of Corrections and
21 Rehabilitation; ROBERT L. AYERS, Acting Warden for the California State Prison at San
22 Quentin,

Dept: Date: Time: Judge:

Courtroom 3, 5th Floor July 19, 2006 1:30 p.m. Hon. Jeremy Fogel

23

Defendants.

24

25

26

27

28

37544702

PLAINTIFF PACIFIC NEWS SERVICE'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS CASE NO. C 06 1793 JF RS

ase 5:06-cv-01793-JF Document 36-1 Filed 06/20/2006 Page 2 of 19

TABLE OF CONTENTS

2

3 I.

INTRODUCTION ............................................................................................................... 1

4 II. 5 III.

FACTS ................................................................................................................................. 3 ARGUMENT ...................................................................................................................... .4

6

A. PNS has standing to pursue its First Amendment claim ......................................... .4

7

1. When analyzing this Rule 12(b)(1) motion, the allegations in

the Complaint are taken as true................................................................... .4

8

2. The Ninth Circuit's CFAC I opinion mandates a finding that

9

PNS has standing.........................................................................................5

10

3. Defendants confuse the concept of standing with the merits-

level inquiry of whether PNS states a valid First Amendment

II

clailll ............................................................................................................. 6

12

B. The PNS Complaint states a claim for which relief may be granted ....................... 7

13

1. PNS states a meritorious claim for violation of its First

Amendment right of access.......................................................................... 7

14

a.

CFAC II has already decided as a matter of law that the

15

qualified First Amendment access right attaches to

executions ........................................................................................ 9

16

b.

Defendants' alleged intentional use ofpancuronium

17

bromide to conceal important infom1ation from the

public cannot survive the First Amendment balancing

18

test. ................................................................................................. 10

19

2.

Cohen v. Cowles Media has no applicability to this case.......................... 13

20 IV. CONCLUSION .................................................................................................................. 15

21

22

23

24

25

26

27

28
11

PLAINTIFF PACIFIC NEWS SERVICE'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS CASE NO. C 06 1793 JF RS

ase 5:06-cv-01793-JF Document 36-1 Filed 06/20/2006 Page 3 of 19

TABLE OF AUTHORITIES

2

Page(s)

3

Cases

4

Andersoll v. United States, 245 F. Supp. 2d 1217 (M.D. Fla. 2002) ...................................................................................... 5

5 Brvan v. Moore, '120 S. Ct. 1003 (2000) ................................................................................................................ 9

6 Cable News Network, Illc. v. Am. Broad. Cos.,

7

518F.Supp.1238(N.D.Ga.198I) ............................................................................................ 8

Cal!lornia First Amendment Coalition v. Woodford,

8 299 F.3d 868 (9th Cir. 2002) ("CFAC It'), modifying in part, 150 F.3d 976 (9th Cir. 1998) ("CFAC t') ............................................ passim

9 Cohen v. Cowles Media Co.,

10

501 U.S. 663 (1991) ............................................................................................................ 13,14

Fierro v. Gomez,

II

865 F. Supp. 1387 (N.D. Cal. 1994) ........................................................................................... 9

12

Flynt v. Rum:-.feld, 355 F.3d 697 (D.C. Cir. 2004) ................................................................................................ 6,7

13 Frasure v. United States,

256 F. Supp. 2d 1180 (D. Nev. 2003) ......................................................................................... 5

14 Friends o.lEarth, Inc. v. Laidlaw Envtl. Servs., Inc.,

IS

528 U.S. 167 (2000) .................................................................................................................... 5

Globe Newspaper Co. v. Superior Court,

16 457 U.S. 596 (1982) .................................................................................................................... 8

17

Gould Elecs., Inc. v. United States, 220 F.3d 169 (3d Cir. 2000) ....................................................................................................... 4

18 Hearns v. Terhune,

413 F.3d 1036 (9th Cir. 2005) .................................................................................................... 7

19 Hydrick v. Hunter,

20

No. 03-56712, 2006 WL 1493100 (9th Cir. June 1,2006) ....................................................... 12

JOlles v. Butterworth,

21

695 So. 2d 679 (Fla. 1997) ......................................................................................................... 9

22

KQED, Inc. v. Vasquez, 18 Media L. Rep. 2323 (N.D. Cal. 1991) ................................................................................... 8

23 McLachlan v. Bell,

261 F.3d 908 (9th Cir. 2001) ...................................................................................................... 4

24 Mortensen v. First Federal Sav. & Loan Ass 'n,

25

549 F.2d 884 (3d Cir. 1977) ....................................................................................................... 4

Oregon Newspaper Publishers Assn. v. Oregon,

26 988 P.2d 359 (Or. 1999) ............................................................................................................. 8

27

Oregonian Publ 'g Co. v. United States District Court, 920 F.2d 1462 (9th Cir. 1990) .................................................................................................... 8

28

HI

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TABLE OF AUTHORITIES

(cont'd)

2

Page(s)

3 Pell v. Procullier,

417 U.S. 817 (1974) .................................................................................................................. II

4 Press-Enterprise Co. v. Superior Court,

5

464 U.S. 50 1 (1984) .................................................................................................................... 7

Press-Enterprise Co. v. Superior Court,

6 478 U.S. 1 (1986) ........................................................................................................................ 8

7

Procunier v. Martinez, 416 U.S. 396 (1974) .................................................................................................................. II

Richmond New,\papers v. Virginia, 448 U.S. 555 (1980) ................................................................................................................ 1,7

Rllpe v. Wood,

10

93 F.3d 1434 (9th Cir. 1996) ...................................................................................................... 9

Sims v. Florida,

11 2000 WL 193226 (Fla. 2000) ..................................................................................................... 9

12

Soc 'y ofProf'I Journalists v. Sec y ofLabor,
616 F. Supp. 569 (D. Utah 1985) ................................................................................................ 8

13 Trentacosta v. Frontier Pac. Aircraft Indus., Inc.,

813 F.2d 1553 (9th Cir. 1987) .................................................................................................... 5

14 TlIrner Broad. Sys., Inc. v. Fed. Commc'lIs Comm 'n,

15

512 U.S. 622 (1994).................................................................................................................. 13

Turner v. Safley,
16 482 U.S. 78 (1987) ........................................................................................................ 10,1 L 13

17

United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942 (7th Cir. 2003) ...................................................................................................... 5

18 Vt. Agency ofNatural Res. v. United States ex reI. Stevens,

529 U.S. 765 (2000) .................................................................................................................... 5

19 Walker v. Sumner,

20

917 F.2d 382 (9th Cir. 1990) .............................................................................................. 11,12

Westmoreland v. Columbia Broad. Sys., Inc.,

21

752 F.2d 16 (2d Cir. 1984) ......................................................................................................... 8

22

WIT itmire v. Arizona, 298 F.3d 1134 (9th Cir. 2002) ............................................................................................ 11,12

23 Wilbur v. Locke, 423 F.3d 1101 (9th Cir. 2005) .................................................................................................... 5
24

25

26

27

28
1111

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I. INTRODUCTION

2

Defendants' motion to dismiss must be denied under the controlling authority of

3 California First Amelldment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002) ("CFAC 11'),

4 I/lodifving in part, 150 F.3d 976 (9th Cir. 1998) ("CFAC 1') (collectively, "CFAC"). The

5 principles enunciated by the Ninth Circuit in CFAC are directly applicable to the factual

6 allegations of this Complaint and are dispositive of this motion.

7

In CFAC, plaintiff media organizations challenged San Quentin prison's practice of

8 closing a curtain in front ofthe execution chamber during certain portions of the prison's lethal

9 injection executions. The curtain prevented members of the media and the press from viewing

10 critical aspects of the execution process. San Quentin officials claimed they needed the curtain

II to protect the anonymity of the prison staff, and therefore, to ensure the execution could proceed

12 smoothly. The lawsuit sought to vindicate the media's First Amendment right of access to

13 important public proceedings, a right that was first recognized in Richmond Newspapers v.

14 Virginia, 448 U.S. 555 (1980). That right is central to our system of self-government because

15 "valuable public debate-as well as other civic behavior-must be informed." 1d. at 587

16 (Brennan, J., concurring).

17

The Ninth Circuit's ruling upheld the media plaintiffs' claim ofa First Amendment right

18 of access. It held that they had standing because the curtain inhibited their reporting on the

19 execution. The court also held that the First Amendment right of access attaches to executions,

20 because executions are historically open and because the information that can be gleaned from

21 observing executions-particularly whether the inmate experiences pain-is crucial to informing

22 the public debate on the death penalty. And it held that the socially valuable information to be

23 gleaned from opening the curtain outweighed the prison's asserted interest in anonymity,

24 particularly because the execution team could take less restrictive action to achieve their stated

25 goal, by wearing masks.

26

The claim raised here is nearly identical to the claim in CFA C. Plaintiff Pacific News

27 Service is a media organization that reports on executions. Instead of a physical curtain, PNS

28 complains of a chemical curtain. PNS alleges that San Quentin's practice of paralyzing inmates

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while it is executing them suppresses the same socially important information that was at issue in

2 CFA C: whether or not the inmate is experiencing pain during the execution. San Quentin

3 officials create this chemical curtain by administering to the inmate pancuronium bromide, a

4 paralytic agent, which does not contribute to or hasten the inmate's death. Because it paralyzes

S the inmate, pancuronium bromide prevents witnesses from discerning whether or not the inmate

6 is experiencing pain. Prison officials simply inject a curtain into the inmate.

7

The legal analysis is the same as it was in CFAC. PNS has standing because it reports on

8 executions, and San Quentin's practice of paralyzing inmates during the execution inhibits that

9 reporting. And CFAC has already held that the First Amendment right of access attaches to

10 executions. Finally, here, as in CFAC, the First Amendment interest in observing important

II information outweighs the government interest in suppressing that information. Indeed, this is

12 an even clearer case than CFAC. Although San Quentin officials asserted an ostensibly rational

13 interest in execution team anonymity in CFA C, they have no reason to paralyze inmates while

14 executing them, other than the illegitimate purpose of creating the appearance that executions are

15 more peaceful and painless than they actually may be.

16

In their motion to dismiss, Defendants manufacture a distinction between the media

17 "observing" ·an execution and the media "controlling" an execution. Their strategy is clear: they

18 need some way to distinguish the physical curtain in CFAC from the chemical curtain at issue

19 here. But the distinction they've come up with is incoherent. Every successful assertion of a

20 constitutional right "controls" what the government does in some way. For instance, the CFAC

21 plaintiffs "controlled" executions by forcing California to remove its curtain. Moreover,

22 Defendants'distinction ignores that PNS is not even seeking to control an execution. Paralyzing

23 inmates has nothing to do with executing them: the paralytic drug serves no purpose in the

24 execution process. In fact, Defendants are perfectly able to execute inmates without paralyzing

2S them, just as they are able to execute inmates without closing a curtain.

26

Defendants try to cast this distinction between "observing" and "controlling" both as a

27 standing argument and as an argument rooted in the First Amendment right of access case law.

28 No standing case or First Amendment right of access case makes this distinction.

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Thus, Defendants' motion to dismiss must be denied.

2

II. FACTS

3

As explained below, for both the Rule 12(b)(I) and Rule 12(b)(6) aspects of the motion

4 to dismiss, the factual allegations of the Complaint must be taken as true. Defendants have not

5 submitted any declarations or other evidence in support of their motion to dismiss. Thus, the

6 following facts are the only ones before the Court:

7

Plaintiff PNS is a media organization that reports on California executions. Compl., ~ 4.

8 PNS is interested in disseminating information on what eyewitnesses to California executions

9 observe during the lethal injection process. ld. Defendants James Tilton and Robert Ayers are

10 the respective heads of the California Department of Corrections and Rehabilitation ("CDCR")
II and the San Quentin prison, which is within CDCR. ld., ~~ 5 & 6. These institutions administer
12 every California execution. 1d.,'1 8.

13

Executions by lethal injection are performed pursuant to San Quentin Operational

14 Procedure No. 770 ("Procedure 770"). Id., ~ 10. Members of the press and the public view these

15 executions. ld., ~. Procedure 770 involves the injection of three drugs, in order: sodium

16 pentothal, pancuronium bromide, and potassium chloride. ld., ~ 11. Sodium pentothal is

17 intended to anesthetize the inmate so that he is unable to feel pain. ld., ~ 12. Pancuronium

18 bromide paralyzes all ofthe inmate's voluntary muscles. ld., ~ 1l. It therefore prevents the

19 inmate from. moving, speaking, or communicating in any manner. ld., ~ 17. Potassium chloride

20 stops the inmate's heart. ld., ~ 11.

21

There is a serious question as to whether Defendants are properly administering sodium

22 pentothal during lethal injection executions. ld., ~ 16. If they are improperly administering

23 sodium pentothal, the inmate would experience intolerable and unnecessary pain when the other

24 two drugs are administered. ld. However, because Defendants administer pancuronium

25 bromide, the press and public witnesses observing the execution will never know whether the
26 inmate is experiencing this intolerable and unnecessary pain while dying. ld., '117. There is

27 potentially other socially valuable information, unrelated to pain, that pancuronium bromide is
28 also suppressing. Jd.,'1 19-20.

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Pancuronium bromide is therefore a chemical curtain. Id., ~ 1. It prevents execution

2 witnesses from seeing what is really happening during an execution. Id., ~~ 17-20. Pancuronium

3 bromide serves no legitimate functional or penological purpose during an execution, such as

4 anesthetizing the inmate or hastening his death. !d., ~ 21. Defendants know this, but nonetheless

5 continue to use pancuronium bromide. Id. Therefore, Defendants intentionally use pancuronium

6 bromide to conceal socially important information from the press and the pUblic. Id., ~ 22.

7

8

III. ARGUMENT

9 A. PNS has standing to pursue its First Amendment claim.

10

PNS has standing for the same reason that the CFAC plaintiffs had standing: a media

11 organization that reports on governmental proceedings has standing to challenge restrictions that

12 impede their ability to report on those proceedings. Defendants cite no contrary authority.

13 Indeed, close scrutiny of Defendants' standing argument reveals that they are not really making a

14 standing argument at all. Rather, their challenge is to the merits of PNS' s claim.

15

1. When analyzing this Rule 12(b)(1) motion, the allegations in the Complaint

are taken as true.

16

When analyzing standing, the Court must take the allegations in PNS's Complaint as

17

true. This is because Defendants have neither challenged the factual allegations in the PNS

18

Complaint nor submitted any declarations in support of their 12(b)(1) motion. Consequently,

19

there will be no evidentiary hearing. See McLachlan v. Bell, 261 F.3d 908, 909 & n.2 (9th CiT.

20

2001) (holding that factual allegations in the complaint are accepted as true if the court is not

21

called upon to hold an evidentiary hearing); see also Gould Elecs., Inc. v. United States, 220 F.3d

22

169, 176-77 (3d CiT. 2000) (citing Mortensen v. First Federal Sav. & Loan Ass 'n, 549 F.2d 884,

23

891 (3d CiT. 1977) ("At the outset, we must emphasize a crucial distinction, often overlooked,

24

between 12(b)( I) motions that attack the complaint on its face and 12(b)( 1) motions that attack

25

the existence of subject matter jurisdiction in fact, quite apart from any pleadings. The facial

26

attack does offer similar [Rule 12(b)(6)] safeguards to the plaintiff: the court must consider the

27

allegations ofthe complaint as true.")).

28

37544702

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Thus, Defendants' argument that "Plaintiff's allegations are not presumed to be true" is

2 simply wrong. Indeed, all four cases cited by Defendants recognize the distinction that PNS

3 raises between those Rule 12(b)( 1) motions where the defendant challenges the factual

4 allegations of the complaint by submitting competent evidence and those Rule l2(b)( 1) motions

5 where the complaint's factual allegations go unchallenged. See Mot. to Dismiss CompI. at 3;

6 Frasure v. United States, 256 F. Supp. 2d 1180, 1184 (D. Nev. 2003); Anderson v. United States,

7 245 F. Supp. 2d 1217,2020 (M.D. Fla. 2002); United Phosphorus, Ltd. v. Angus Chem. Co., 322

8 F.3d 942, 946 (7th Cir. 2003); Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553,

9 1558-59 (9th Cir. 1987).

10

PNS may rest on its Complaint and need not submit evidence to establish standing.

11

2. The Ninth Circuit's CFAC I opinion mandates a finding that PNS has

standing.

12

To establish Article III standing, PNS must demonstrate that: (1) it will suffer an "injury-

13

in-fact"; (2) "the injury is fairly traceable to the challenged action"; and (3) "it is likely, as

14

opposed to merely speculative, that the injmy will be redressed by a favorable decision." Wilbur

15

v. Locke, 423 F .3d 1101, 1107 (9th Cir. 2005) (citing Friends ofEarth, Inc. v. Laidlaw Ellvtl.

16

Servs., Inc., 528 U.S. 167, 180-81 (2000)). As a shorthand, these requirements are labeled

17

"injury in fact," "causation," and "redressability." Vt. Agency ofNatural Res. v. United States ex

18

reI. Stevens, 529 U.S. 765,771 (2000).

19

In CFAC 1, the Ninth Circuit held that media organizations that report on executions have

20

standing to challenge alleged violations of the First Amendment right to witness executions.

21

This holding was never revisited in CFAC II. CFAC I reasoned:

22

[Plaintiffs] have covered or observed executions in the past and are likely to do so

23

in the future. The restrictive procedures of which [Plaintiffs] complain[] could

hinder its members' ability to do their work and would cause an injury in fact to

24

them. In particular, [Plaintiff] could be stifled in reporting to the public about

how executions were being carried out.

25

CFAC 1, I SO F.3d at 980-81. This analysis regarding injury-in-fact and causation applies equally

26

to PNS's claim in this case. PNS has "covered or observed executions in the past and is likely to

,r 27 do so in the future." ld.; see Complaint, 4 (alleging that PNS "reports on, among other things,

28

375447.02

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the application of the death penalty in California"). Defendants do not contest this. In addition,

2 "the restrictive procedures of which [PNS] complains"-namely the use ofpancuronium

3 bromide-could hinder its members' ability to "report[] to the public about how executions were

4 being carried out." CFAC 1,150 F.3d at 980-81; see Complaint ~~ 18-20 (describing intormation

5 important to the public that is concealed by pancuronium bromide). Defendants do not contest

6 this point either. Thus, PNS satisfies the injury-in-fact and causation requirements.

7

Although CFAC I did not expressly address the third standing requirement, redressability,

8 it was not seriously in dispute there or here. In CFAC I, enjoining the state from drawing the

9 curtain would reveal to execution witnesses reportable information concerning the "initial

10 procedures," thereby redressing the CFACplaintiffs' concerns. Similarly, the injunction sought

I I here would prohibit San Quentin officials from suppressing important information about the

12 execution process.

13

Thus, CFAC I, which Defendants never cite, answers the standing question in PNS'

14 favor.

15

3. Defendants confuse the concept of standing with the merits-level inquiry of

whether PNS states a valid First Amendment claim.

16

Ultimately, Defendants do not raise any actual standing arguments because they have

17

fundamentally confused the concept of standing with the merits ofPNS's First Amendment

18

challenge. It goes without saying that the question of standing is separate from and independent

19

of the question of whether a plaintiff states a valid claim on the merits. For instance, in CFAC I

20

itself, the Ninth Circuit held that the plaintiffs had standing, despite holding that the plaintiffs

21

would not necessarily prevail on the merits. 150 F.3d at 980 n.8; see also Flynt v. Rum:,feld, 355

22

F.3d 697, 699 & 702-03 (D.C. Cir. 2004) (holding that although reporters have standing to

23

challenge a military regulation that prevents them from "accompany[ing] ground troops on

24

combat missions" in Afghanistan, the regulation does not violate the First Amendment).

2S

Detendants' motion evidences their confusion between the concept of standing and the

26

merits-level inquiry. Defendants correctly recite the three Article III standing requirements in

27

Section A of their standing argument. See Mot. to Dismiss Compl. at 2-3. But, Section B of

28

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their standing argument-where they purport to apply the law of standing to this case-only

2 makes merits-level arguments. Indeed, Section B's heading reads: "Because Plaintiff Has No

3 Legally Protected Interest In The Means By Which An Execution Is Conducted The Court Lacks

4 Jurisdiction To Hear The Case." Id. at 3. In essence, Defendants argue that because PNS has no

5 First Amendment right, PNS lacks standing. Moreover, of the nine cases cited in Section B of

6 Defendants' standing argument, eight contain no discussion of standing at all. They simply

7 pertain to the merits of the constitutional rights at issue in those cases. Id. at 3-5. The ninth case,

8 Flvilt v. RUlmfeld, actually held that the plaintiffs there did have standing. 355 F.3d at 702.

9 Even still, the only portion of Flynt that Defendants cite to pertains to F(vnt's holding on the

10 merits. See Mot. to Dismiss Compi. at 5; Flynt, 355 F.3d at 703.

11

Thus, Defendants do not make a standing argument at all. Rather, they only attack the

12 Complaint on the merits, to which PNS now turns.
13 B. The PNS Complaint states a claim for which relief may be granted.

14

There is no dispute that when analyzing the merits of PNS' First Amendment claim, the

15 Court must accept the factual allegations in the Complaint as true. Hearns v. Terhune, 413 F.3d

16 1036, 1040 (9th Cir. 2005). Thus, the Court must take as true PNS' allegations that

17 "pancuronium bromide serves no legitimate functional or penological purpose in the lethal

18 injection protocol," and that Defendants "intentionally administer pancuronium bromide to

19 conceal important information from the press and the public." Id., ~~ 21, 22. It is with these

20 serious allegation in mind that the Court should approach the relevant First Amendment case

21 law.

22

1. PNS states a meritorious claim for violation of its First Amendment right of

access.

23

This case involves the application of the First Amendment right to attend and witness

24

important public proceedings in the context of an execution. That right was established in

25

Richmond Newspapers, 448 U.S. 555. This presumptive right of access to government

26

proceedings now attaches to virtually every phase of the criminal and civil justice process, 1 to

27

28
37544702

1 See. e.g., Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ("Press-Enterprise f')
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executive proceedings, 2 and to executions inside prisons. 3 The primary purpose of this First

2 Amendment access right is "[t]o ensure that [the] constitutionally protected 'discussion of

3 government affairs' is an informed one." Globe Newspaper Co. v. Superior Court, 457 U.S. 596,

4 605 (1982).

5

Courts employ a two-step analysis to determine whether a restriction on access to a

6 particular government proceeding violates the First Amendment. Press-Enterprise Co. v.

7 Superior Court, 478 U.S. 1,9-10 (1986) ("Press-Enterprise 11'). First, the First Amendment

8 right of access must attach to the proceeding. Id. Second, if the First Amendment access right

9 does attach, the restriction must survive a First Amendment balancing test: the legitimate

10 governmental interests it serves must outweigh the loss of First Amendment values. Id. Thus,

II even where the First Amendment right of access attaches to a proceeding, it is qualified, not

12 absolute. Id.

13

To state a claim under the First Amendment for violation of the right of access, the

14 Complaint's allegations must establish (1) that the First Amendment right of access attaches to

IS executions, and (2) that the state's practice of paralyzing death row inmates fai Is the appropriate

16 First Amendment balancing test. The Complaint satisfies both prongs of this test. The first

17 prong is directly controlled and established by CFAC II, a decision that binds this Court. The

18 second prong is clearly satisfied, given the allegations that pancuronium bromide serves no

19 legitimate purpose during an execution and that the state intentionally paralyzes inmates in order

20 to conceal socially important information from the public and press.

21

22

23 (voir dire proceedings); Press-Enterprise II, 478 U.S. 1 (preliminary hearings in criminal prosecution); Oregonian Publ'g Co. v. United States District Court, 920 F.2d 1462 (9th Cir.
24 1990) (plea agreements); Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16 (2d Cir. 1984) (civil trials).
25 2 See, e.g., Soc y ofProf'I Journalists v. Sec yofLabor, 616 F. Supp. 569 (D. Utah 1985)
26 (forn1al agency hearings); Cable News Network, Inc. v. Am. Broad. Cos., 518 F. Supp. 1238 (N.D. Ga. 1981) (White House events).
27 3 CFAC II, 299 F.3d at 877; KQED, Inc. v. Vasquez, 18 Media L. Rep. 2323 (N.D. Cal. 1991). See also Oregon Newspaper Pablishers Assn. v. Oregon, 988 P.2d 359 (Or. 1999) (vindicating
28 analogous public right to meaningfully witness executions based on state statute).

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a. CFA C II has already decided as a matter of law that the qualified

First Amendment access right attaches to executions.

2

CFA C IJ held that the press and the public have a right to meaningfully observe

3

executions "from the moment the condemned enters the execution camber through, to and

4

including, the time the condemned is declared dead." CFAC 11,299 F.3d at 885-86 (citations

5

omitted). Defendants concede this. Mot. to Dismiss Compl. at 3. This holding, on its face,

6

satisfies the first step of the two-step analysis performed in First Amendment right-of-access

7

cases.

8

Importantly, CFAC II's reasons for extending the First Amendment right of access to

9

executions are partiCUlarly relevant in the context ofPNS's claim. CFAC II's holding rested on

10

three considerations:

1 1

1. the developing body of case law recognizing the First Amendment right of access

12

to most aspects of the criminal justice system, including trials, pre- and post-trial

proceedings, and prisons;

13

2. the historical tradition of public access to executions, from Twelfth century

14

England to the modern American practice; and

15

3. the functional importance of public access to executions, namely its contribution

to public dialogue on the humaneness of the death penalty and the appearance of

16

fairness that public access fosters.

17 CFAC IJ, 299 F.3d at 874-77.

18

The primary type of information to which PNS seeks access is the indicia of pain that an

19 inmate manifests during the killing process (not merely indicia of pain during the "initial

20 procedures," which were at issue in CFAC). This is precisely the type of information in which

21 there is historical and functional interest. As the District Court stated in CFAC:

22

Courts evaluating the constitutionality of methods of execution rely in part on

eyewitness testimony. See, e.g., Jones v. Butterworth, 695 So. 2d 679 (Fla. 1997);

23

Sims v. Florida, 2000 WL 193226 at *7-8 (Fla. 2000); Fierro v. Gomez, 865 F.

Supp. 1387 (N.D. Cal. 1994). This eyewitness testimony is crucial to the review

24

of execution protocols which the courts frequently undertake. While courts rarely

invalidate a state's execution procedure, ongoing challenges and threats of

25

challenge motivate states to modify their procedures. For example, lethal gas and

electrocution have been vigorously challenged in recent years. In response to

26

these challenges, most states have either moved to the use of lethal injection or

make it available as an alternative to gas, electrocution or hanging. See, e.g.,

27

Bryan v. Moore, 120 S. Ct. 1003 (2000) (certiorari to determine constitutionality

of electrocution dismissed as improvident after state modified statute to permit

28

execution by lethal injection); Rupe v. Wood, 93 F.3d 1434 (9th Cir. 1996)

375447.02

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(constitutionality of hanging a 400-pound man rendered moot after state modified

statute to permit lethal injection).

2 CFAC, 2000 WL 33173913 at *9 (N.D. Cal. 2000), aff'd, 299 F.3d 868 (9th Cir. 2002).

3 This Court should heed both the holding and reasoning in CFAC when evaluating

4 Defendants' motion to dismiss. Defendants consistently mischaracterize PNS's Complaint as an

5 effort by a news organization to satisfy its predictable preference for more information, as if PNS

6 merely seeks information of trivial importance. Defendants claim that PNS seeks greater access

7 to executions because "such access might lead to more thorough or better reporting" (Mot. to

8 Dismiss CompI. at 5, Ins 4-5), because PNS seeks an "execution comporting more closely with

9 its preferences" (Mot. to Dismiss CompI. at 6, Ins 7-8), or because PNS's ability to report "would

10 be enhanced by access to particular information or locations" (Mot. to Dismiss CompI. at 6, Ins

11 7-8). This is simply not true. Through this lawsuit, PNS seeks access to precisely the type of

12 illlportCln t information that motivated the CFA C court to recognize the right of access to

13 executions in the first place: information about pain that the inmate may experience as a result of

14 the execution process. Thus, the importance of the type of information PNS seeks is a key

IS

consideration.

16

b. Defendants' alleged intentional use of pancuronium bromide to

17

conceal important information from the public cannot survive the

First Amendment balancing test.

18 Given that the First Amendment access right attaches to executions, the only remaining

19 question is whether the particular challenged restriction survives First Amendment scrutiny. The

20 restriction at issue here is San Quentin's use of pancuronium bromide to paralyze the inmate's

21 body so as to conceal from the public possible manifestations of pain or other important

22

information.

23 In the prison context, courts typically use the four-factor balancing test of Turner v.

24 Sa/lev, 482 U.S. 78 (1987), to evaluate whether an asserted constitutional right outweighs the

25 legitimate penological interests of the prison. See CFAC II, 299 F.3d at 877-794 ; Walker v.

26

27 4 The CFAC II court had serious doubts about employing the deferential Turner standard because
28 the challenged restriction-the drawing of the curtain-actually infringed the rights of nonprisoners. 299 F.3d at 878-79. Nonetheless, CFAC II persisted with the Turner test because

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SUlIlner, 917 F.2d 382, 385-86 (9th Cir. 1990); Whitmire v. Arizona, 298 F.3d 1134, 1136 (9th

2 Cir. 2002). Courts use the Turner test because it is deferential to prison officials, who face

3 "complex and intractable" problems of prison administration that are not easily resolved by

4 judicial decree. CFAC II, 299 F.3d at 877-78 (quoting Procunier v. Martinez, 416 U.S. 396,

5 404-05 (1974 )). The Turner test itselflays out those "legitimate policies and goals of the

6 conections system" that fall within the special province or expertise of prison officials:

7 "detenence of future crime, protection of society by quarantining criminal offenders,

8 rehabilitation of those offenders and preservation of internal security." Id. at 878 (citing Pell v.

9 Procullier, 417 U.S. 817, 822-23 (1974)).

10

With those "legitimate penological objectives" defined, the Turner test states: "in

11 reviewing a challenge to a prison regulation that burdens fundamental rights, [courts1are

12 directed to ask whether the regulation is reasonably related to legitimate penological objectives,

13 or whether it represents an exaggerated response to those concerns." Id. (internal quotations

14 omitted) (quoting Turner, 482 U.S. at 87). More specifically:

15

In determining whether a restriction on the exercise of rights is reasonable or

exaggerated in light of those penological interests, four factors are relevant: (1)

1 6

whether there is a valid, rational connection between the prison regulation and the

legitimate governmental interest put forward to justify it; (2) whether there are

17

alternative means of exercising the right that remain open to prison inmates; (3)

what impact accommodation of the asserted constitutional rights will have on

18

guards and other inmates, and on the allocation of prison resources generally and

(4) whether there exist ready alternatives that fully accommodate the prisoner's

19

rights at de minimis cost to valid penological interests.

20 Id. (internal quotations omitted) (quoting Turner, 482 U.S. at 89-91).

21

Two important observations should be made about the first prong of the Turner v. Safley

22 test. First, if the government has an illegitimate purpose of concealing information from the

23 public, it automatically fails the balancing test. CFAC II, 299 F.3d at 880. Second, if there is no

24
25 CFAC I had done so, and the subsequent panel found itself bound by CFAC 1. Id. at 879. Because Defendants cannot prevail even under the Turner standard, it is immaterial to the
26 outcome of this motion whether a less deferential balancing test should apply. Additionally, CFAC II actually applied a stricter version of the Turner test, requiring slightly
27 greater scrutiny of government conduct. 299 F.3d at 879-80 (requiring a "closer fit"). Again, because this heightened standard is immaterial to the outcome of the balancing test in this
28 motion, PNS omits further discussion of it here.

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"legitimate governmental interest" that justifies the restriction on fundamental rights, there is no

2 need for further analysis because there is nothing against which to weigh the infringement of the

] plaintiff's rights. Id. at 883 ("the first factor is arguably dispositive."); see also Walker, 917 F.2d

4 at 385 ("The first of these factors constitutes a sine qua non.").

5

Defendants' practice of paralyzing inmates during executions clearly fails this test, for

6 two independent reasons. First, PNS has alleged that Defendants intentionally paralyze inmates

7 to conceal information from the public. Second, PNS has alleged that there is no legitimate

8 government interest in using pancuronium bromide. Thus, for purposes ofthis motion, there is

I) no interest to weigh against the loss of PNS' s First Amendment access rights. This case is

10 therefore even easier than the numerous cases where courts refused to dismiss the complaint at

I I the pleadings stage, even where the government was able to assert a plausible penological

12 interest to justify its conduct. See, e.g., Hydrick v. Hunter, No. 03-56712, 2006 WL 1493100, at

13 *9-*10 (9th Cir. June 1,2006) (pending publication in the Federal Reporter); Whitmire, 298 F.3d

14 1134 (scrutinizing the prison's asserted justification for the challenged policy); Walker, 917 F.2d

15 at 385-86. In these cases, the Ninth Circuit refused to weigh the government's asserted

16 penological interests against the asserted right at the pleadings stage to justify dismissing the

17 complaint. Here, Defendants do not even attempt to assert an interest in paralyzing inmates

18 while executing them. See Mot. to Dismiss CompI. at 4-5 ("Putting to one side whether Plaintiff

19 correctly understands the effects of pancuronium and the reasons it is used by the state, the

20 'right' Plaintiff claims for itself is not provided by the First Amendment."). Thus, any balancing

21 that is performed to decide this motion must be resolved in PNS' s favor.

22

Yet, Defendants somehow appear to have missed that a First Amendment balancing test

23 exists. Defendants argue that "the First Amendment does not guarantee unfettered access to

24 places, events, or information." See id. at 7; see also id. at 4-5. They then cite numerous cases

25 where the plaintiff raising a First Amendment right of access lost. ld. at 7. The only principle

26 that can be gleaned from this analysis is that the plaintiff always loses, and the government

27 always wins. Of course, PNS recognizes that the First Amendment right of access is not

28 "unfettered." This is why there is a balancing test. Nowhere in their 9-page brief, however, do

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Defendants even mention a balancing test. Nor do Defendants cite the numerous Supreme Court

2 cases in which the plaintiff raising a First Amendment right of access claim prevailed. See, e.g.,

3 supra footnotes 1-3.

4

This failure to recognize that a balancing test exists explains the central fallacy in

5 Defendants' brief. Defendants appear to believe that there is a bright-line distinction between

6 "ohserv[illg]" an execution and "defin[ing] how the execution should be conducted." See Mot. to

7 Dismiss Compi. at 4. But this notion fundamentally contradicts the idea of a balancing test.

8 Whenever a plaintiff prevails under Turner, the court is necessarily, in some sense, telling the

9 government what to do. Turner applies whenever a prison official is alleged to have violated a

10 fundamental right, not just in the execution context. Thus, the balancing test was used in CFAC

II to "define how the execution should be conducted" (i.e., without a curtain), and in Turner itself

12 to "define how" the prison operated. Turner, 482 U.S. at 94-99 (holding invalid a prison mle

13 requiring prior approval before inmates could marry). The Turner test already takes into

14 consideration the deference owed to prisons, but nonetheless countenances courts striking down

IS prison rules when they unjustifiably violate fundamental rights. Thus, the bright-line distinction

16 Defendants seek to draw between "observ[ing]" an execution and "defin[ing] how the execution

I7 should be conducted" simply does not exist.

18

2. Cohen v. Cowles Media has no applicability to this case.

19

Instead of addressing Turner, Defendants argue instead that the PNS Complaint should

20 be dismissed under the doctrine that neutral rules of general applicability "do not offend the First

21 Amendment simply because their enforcement against the press has incidental effects on its

22 ability to gather and report the news." Mot. to Dismiss Compi. at 8 (quoting Cohen v. Cowles

23 Media Co., 501 U.S. 663, 669 (1991)). But this case is a far cry from Cohen and its line of cases.

24 See also Turner Broad. Sys., Inc. v. Fed. Commc'ns Comm'n, 512 U.S. 622, 640-41 (1994).

25

In Cohen, a confidential source sued reporters who broke their prom ise of confidential ity.

26 The reporters invoked the First Amendment as a defense. They argued that they could not be 27 held liable on a promissory estoppel theory under Minnesota law, because that would effectively
punish them for reporting important news. The Supreme Court rejected the reporters' argument.

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The Court held that there was no basis for heightened First Amendment scrutiny because the

2 state law of promissory estoppel, which "simply requires those making promises to keep them,"

3 was (I) neutral toward First Amendment conduct and (2) generally applicable to all citizens, not

4 just members of the press. Cohen, 501 U.S. at 669-72.

5

But paralyzing inmates during an execution is not neutral toward First Amendment

6 conduct-~that is, it necessarily inhibits the ability of the press to gather information of public

7 importance. In the very same way that the physical curtain in CFAC was not neutral towards the

8 free flow of information to the public, this chemical curtain has the natural and direct effect of

9 cutting off access to information. More so than a curtain, paralysis serves no legitimate purpose

10 during an execution. Additionally, PNS has alleged that Defendants intentionally paralyze

II inmates to conceal infom1ation. Thus, there is no way in which Defendants' use of pancuronium

12 bromide can be seen as neutral to First Amendment conduct.

13

Perhaps more importantly, paralysis of inmates is not a generally applicable rule.

14 Procedure 770 does not call for the paralysis of all inmates at San Quentin; only the ones who are

15 being executed receive pancuronium bromide. San Quentin's practice of paralyzing inmates

16 during executions is not like Minnesota's generally applicable rule of promissory estoppel,

17 which is only occasionally applied to First Amendment conduct. Rather, pancuronium bromide

18 inhibits public access to information every time it is used during an execution. This is not a case

19 ofthe press or the public seeking a special exemption from a "rule" that is otherwise applied

20 across-the-board; PNS challenges the "rule" in every instance it is applied.

21

The doctrine concerning neutral rules of general applicability has no relevance to PNS's

22 Complaint.

23 II

24 II

25 II

26 II

27 II

28 II

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IV. CONCLUSION

2

For the foregoing reasons, Defendants' motion to dismiss should be denied.

3 4 Dated: June 20, 2006 5 6

ACLU FOUNDAnON OF NORTHERN CALIFORNIA
KEKER & VAN NEST, LLP

7

8

By: lsi Wendy J. Thurm

WENDY 1. THURM

9

Attorneys for Plaintiff

PACIFIC NEWS SERVICE

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1 KEKER & VAN NEST, LLP JON B. STREETER - #101970
2 WENDY J. THURM - #163558 AJAY S. KRISHNAN - #222476
3 710 Sansome Street San Francisco, CA 94111-1704
4 Telephone: (415) 391-5400 Facsimile: (415) 397-7188
5 E-mail: akrishnan@kvn.com

6 ACLU FOUNDATION OF NORTHERN CALIFORNIA ALAN L. SCHLOSSER - #49957
7 MICHAEL RISHER - #191627 39 Drumm St.
8 San Francisco, CA 94111 Telephone: (415) 621-2493
9 Facsimile: (415) 255-1478 E-mail: aschlosser@aclunc.org
10 Attorneys for Plaintiff
11 PACIFIC NEWS SERVICE

12 UNITED STATES DISTRICT COURT
13 NORTHERN DISTRICT OF CALIFORNIA
14

15 PACIFIC NEWS SERVICE,
16 Plaintiff,
17 v.
18 MATTHEW CATE, Secretary of the
19 California Department of Corrections and Rehabilitation; VINCENT CULLEN, Acting
20 Warden, California State Prison at San Quentin; ARNOLD SCHWARZENEGGER,
21 Governor, State of California; and Does 1-50,

Case No. C 06 1793 JF HRL
DEATH PENALTY CASE
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [42 U.S.C. § 1983]

22

Defendants.

23

24

25

26

27

28

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1

NATURE OF ACTION

2

1. This action is brought to vindicate the right of the press and the public to attend,

3 meaningfully observe, and gather and report on important information at California executions.

4 These executions are administered by the California Department of Corrections and

5 Rehabilitation and the California State Prison at San Quentin. On information and belief, these

6 institutions, along with the California Governor’s Office and perhaps others, were responsible for

7 developing the regulations that govern the method for carrying out executions by lethal injection.

8 The right at issue is guaranteed by the First and Fourteenth Amendments of the United States

9 Constitution and is primarily effectuated by members of the press who are actually present at

10 executions and who serve as surrogates for the press and the public at large. Plaintiff, a media

11 organization that reports on California executions, seeks temporary, preliminary, and permanent

12 injunctive relief to prevent the defendants from executing any death row inmates in a manner

13 that conceals important information to which the public is constitutionally entitled. Specifically,

14 society is constitutionally entitled to publicly observe the physical process and procedures by

15 which the State puts an executed inmate to death and how the inmate dies. Society’s

16 constitutional right includes having access to the observable physical impact of the lethal

17 procedure. Defendants’ use of pancuronium bromide, a paralytic agent that acts as a chemical

18 curtain over the lethal injection process, makes it impossible for witnesses to observe adequately

19 the dying process. This lawsuit is not a challenge to the death penalty or to all lethal-injection

20 executions. Rather, plaintiff contends that California must not execute death row inmates in a

21 manner that violates the First Amendment rights of the press and of the public. The public

22 requires information in order to make informed decisions, via democratic processes, whether

23 executions should be conducted at all, and if so, how. The First Amendment claim, therefore,

24 vindicates the public’s right of access to information related to that democratic decision-making

25 process.

26

JURISDICTION AND VENUE

27

2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question),

28 § 1343 (civil rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This

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1 action arises under the First and Fourteenth Amendments to the United States Constitution and

2 under 42 U.S.C. § 1983.

3

3. Venue is proper pursuant to 28 U.S.C. § 1391(b) because the California State

4 Prison at San Quentin in San Quentin, California, is located in this District. All executions

5 conducted by the State of California (“State”) occur at San Quentin. The events giving rise to

6 this complaint will occur in this District.

7

THE PARTIES

8

4. Plaintiff Pacific News Service (“PNS”) is a non-profit media organization,

9 founded in 1969, that reports on, among other things, the application of the death penalty in

10 California. PNS syndicates daily stories to subscribing mainstream and community newspapers

11 across the United States. PNS stories include feature-length commentary, news analysis, and

12 investigative reporting. PNS also sponsors magazine articles, books, TV segments and films.

13 Additionally, PNS owns and operates New America Media, an association of hundreds of

14 independent news organizations that cover, at least in part, issues pertaining to ethnic or minority

15 communities. New America Media publishes content generated both internally and from its

16 member organizations. Pacific News Service is interested in disseminating information on what

17 eyewitnesses to California executions observe during an execution by lethal injection. PNS is a

18 California non-profit corporation based in San Francisco, California.

19

5. Defendant Matthew Cate is the Secretary of the California Department of

20 Corrections and Rehabilitation (“the Department”). Cate, or those under the control of the

21 Secretary of the Department, developed the regulations setting forth California’s execution

22 protocol, and are responsible for implementing it.

23

6. Defendant Vincent Cullen is the Acting Warden of the California State Prison at

24 San Quentin (“San Quentin Prison”). California death row inmates are incarcerated and

25 executed at San Quentin Prison. Cullen, or those under the control of the Warden of San

26 Question Prison, developed the regulations setting forth California’s execution protocol, and are

27 responsible for implementing it.

28

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1

7. Defendant Arnold Schwarzenegger is the Governor of the state of California. On

2 information and belief, his office (“the Governor’s Office”) developed, in conjunction with the

3 other Defendants, the regulations setting forth California’s execution protocol, and direct the

4 Department and San Quentin Prison in its implementation.

5

8. Plaintiff does not know the true names of Does 1-50 but alleges that they have or

6 will participate in California executions by virtue of their roles in designing, implementing,

7 and/or carrying out executions by lethal injection. When plaintiff discovers the Doe Defendants’

8 true identities, it will amend its complaint accordingly.

9

CLAIM

10 VIOLATION OF RIGHT OF ACCESS TO PUBLIC PROCEEDINGS PROTECTED BY

THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

11

CONSTITUTION

12

(42 U.S.C. § 1983)

13

9. Under California law, death sentences shall be carried out by “administration of a

14 lethal gas or by an intravenous injection of a substance or substances in a lethal quantity

15 sufficient to cause death, by standards established under the direction of the Department of

16 Corrections.” Cal. Penal Code § 3604(a). The statute prescribes no specific drugs, dosages, drug

17 combinations, or manner of intravenous line access to be used in the execution process; nor does

18 the statute prescribe any certification, training, or licensure required of those who participate in

19 the execution process. The details of the execution process by lethal injection were determined

20 by the Department, its subsidiary, San Quentin Prison, the Governor’s Office and perhaps others.

21

10. Title 15 of the California Code of Regulations §§ 3349 – 3349.4.6 (the “Lethal

22 Injection Regulations”) set forth the lethal injection protocol adopted by the Department, after a

23 notice and comment process that is currently the subject of a separate legal dispute in California

24 state court. The Lethal Injection Regulations are the latest version of California’s lethal injection

25 procedure—formerly known as San Quentin Operational Procedure No. 770 (“Procedure

26 770”)—which has evolved since it was first adopted in the mid-1990’s. There have been three

27 recent revisions of California’s lethal injection protocol. First, the Department revised

28 Procedure 770 on March 16, 2006, following its February 21, 2006 decision to postpone

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1 indefinitely the execution of Michael Angelo Morales. The original version of PNS’s complaint

2 in this lawsuit challenged the March 16, 2006 version of Procedure 770. Second, Procedure 770

3 was revised again on May 15, 2007, following this Court’s issuance of its December 15, 2006

4 Notice of Intended Decision in Morales v. Cate, Case Nos. C-06-219-JF-HRL & C-06-926-JF-

5 HRL. The Notice of Intended Decision, in evaluating Mr. Morales’ Eighth Amendment claim,

6 identified numerous substantive defects with the lethal injection protocol and invited Defendants

7 to address those defects. PNS’s First Amended Complaint in this lawsuit challenged the May 15,

8 2007 version of Procedure 770. Third, Procedure 770 was superseded by the Lethal Injection

9 Regulations, following a decision by the Marin Superior Court in Morales v. CDCR, Case No.

10 CIV 061436 (Cal. Sup. Ct.), invalidating Procedure 770 for non-compliance with California’s

11 Administrative Procedures Act. The state now claims that it has complied with California’s

12 Administrative Procedures Act and that the Lethal Injection Regulations became final on

13 August 29, 2010. PNS’s current complaint, this Second Amended Complaint, challenges the

14 Lethal Injection Regulations.

15

11. California’s lethal injection protocol, in policy and practice, has remained

16 unchanged since its inception in one critical respect: It provides for execution by injection with a

17 lethal combination of three chemical substances, in the following order: first, sodium pentothal, a

18 short-acting barbiturate; second, pancuronium bromide, which paralyzes all voluntary muscles;

19 and third, potassium chloride, which causes cardiac arrest.

20

12. The intended purpose of the first drug administered in the Lethal Injection

21 Regulations, sodium pentothal (also known as sodium thiopental), is to render the inmate

22 unconscious and therefore unable to experience pain. The intended purpose of the third drug,

23 potassium chloride, is to bring about the rapid death of the inmate by stopping his heart. The

24 intended purpose of the second drug, pancuronium bromide (also known as Pavulon), is in

25 dispute and is discussed in more detail below. The parties agree, however, that one intended

26 purpose and effect of pancuronium bromide is to induce paralysis. Defendants have also

27 publicly admitted that at least one reason for using pancuronium bromide is to conceal

28 “involuntary muscle movement” with unpredictable consequences. Ultimately, Defendants have

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1 never provided a constitutionally legitimate and justifiable reason for administering pancuronium

2 bromide. The primary apparent function of this drug is to conceal important aspects of the

3 execution process from the press and the public.

4

13. Defendants Cate, Cullen, and Schwarzenegger, and the Doe Defendants are acting

5 under color of California law when promulgating or amending the Lethal Injection Regulations

6 and when carrying out executions.

7

14. A limited number of members of the press and the public are permitted to witness

8 executions in California. These eyewitnesses serve as surrogates for those members of the press

9 and the public who are not able to attend executions personally. Thus, the First Amendment

10 rights of the public and the press to attend and meaningfully observe executions are effectuated

11 by these surrogates.

12

15. Death row inmates have challenged the Lethal Injection Regulations and its

13 predecessor, Procedure 770, arguing that this protocol violates constitutional and statutory

14 provisions enacted to prevent cruelty, pain, and torture. As a result, the issue of whether

15 California’s lethal injection protocol illegally subjects death row inmates to an undue risk of a

16 painful death has received substantial media attention in California and nationwide, and is of

17 great interest to the public. When the Department was drafting the current regulations it received

18 more than 20,000 comments from members of the public, which also shows the intensity of the

19 public’s interest in executions by lethal injection.

20

16. Members of the press and the public who witness executions at San Quentin are

21 unable to observe and report on significant aspects of the execution process historically observed

22 by eyewitnesses and reported to the public at large. This is because pancuronium bromide, the

23 second drug in the lethal injection cocktail, paralyzes all movement of the inmate’s voluntary

24 muscle fibers.

25

17. One example of information that the public historically had access to when

26 viewing executions is the process of dying. Historically, members of the public had the ability to

27 observe the manner in which the executed inmate’s body responded to those instrumentalities

28 that brought about his death. For instance, during executions by the firing squad, hanging, and

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1 electrocution, witnesses were historically able to see the way in which the inmate’s body

2 responded to the lethal apparatus or instrumentality. As the Ninth Circuit put it, “The public and

3 press historically have been allowed to watch the condemned inmate enter the execution place,

4 be attached to the execution device and then die.” California First Amendment Coalition v.

5 Woodford, 299 F.3d 868, 876 (9th Cir. 2002). The use of pancuronium bromide during the lethal

6 injection process—as mandated by the Lethal Injection Regulations—prevents society from

7 watching, in a meaningful way, executed inmates die.

8

18. Another example of information that is concealed from the public as a result of

9 pancuronium bromide is information about the humaneness of the lethal injection process—

10 namely, whether the inmate experiences pain, and if so, how much. A major controversy

11 surrounding the California’s lethal injection protocol focuses on whether the inmate is properly

12 anaesthetized before dying. Specifically, a substantial question has been raised as to whether

13 that protocol ensures adequate delivery of sodium pentothal to the inmate. In past and current

14 challenges to the Lethal Injection Regulations and Procedure 770, inmates have alleged

15 shortcomings in the protocol, suggesting that prior California executions performed under

16 Procedure 770 actually subjected inmates to excruciating pain. But the inclusion of pancuronium

17 bromide in the protocol renders the inmate incapable of showing any pain: his body will remain

18 motionless whether or not he experiences pain. The pancuronium bromide will suppress

19 important information, including both physical reactions of the body, such as voluntary or

20 involuntary coordinated muscle movement, and verbal indicia of pain. As a result, pancuronium

21 bromide acts as a chemical curtain that conceals indicia of pain from the members of the press

22 and the public that are observing the executions.

23

19. Importantly, pancuronium bromide conceals important information from members

24 of the press and the public whether pain is present or absent. If the inmate does experience pain,

25 execution witnesses will not be able to observe the inmate’s physical indicia of pain because of

26 the inmate’s paralysis. If the inmate is completely anaesthetized and does not experience pain,

27 execution witnesses will not be able to determine whether the lack of any physical response is a

28 result of pancuronium bromide or of unconsciousness. Thus, pancuronium bromide masks

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1 important information about the presence or absence of pain.

2

20. Additionally, pancuronium bromide masks both disputed and undisputed indicia

3 of pain or consciousness. In the lawsuits brought by death row inmates challenging Procedure

4 770 and in the larger social debate, there are often disputes as to whether or not an inmate’s

5 physical responses during the execution process indicate that the inmate was conscious and

6 experienced pain while dying. For instance, litigants and interested members of society regularly

7 debate whether prolonged lethal injection executions, where breathing persists several minutes

8 after the anesthetic is administered, constitute evidence of a botched execution. Pancuronium

9 bromide conceals from members of the public viewing executions both types of physical

10 responses—those that could and could not be reasonably disputed as indicia of pain. The press

11 and the public are entitled to witness, interpret, and report on both types of physical responses.

12 Thus, the First Amendment right protects access to information that may or may not be relevant

13 to a Court’s determination as to whether or not an inmate experiences pain.

14

21. The Lethal Injection Regulations also prevent the witnesses from using auditory

15 information to evaluate the execution process. In past executions that used a curtain to hide

16 portions of an execution—such as the 1992 execution of Rickey Ray Rector in Arkansas—media

17 witnesses who were prevented from seeing the execution were nonetheless able to report that

18 they had heard the prisoner moaning in pain, apparently as the executioners attempted to insert

19 IV lines. Pancuronium bromide would prevent a prisoner from verbally expressing any pain that

20 occurred after it was administered. In addition, the Lethal Injection Regulations incorporate a

21 new information-management provision: the new execution chamber contains a microphone that

22 allows witnesses to hear what is occurring in the chamber, but this microphone is to be switched-

23 off immediately before the chemicals are administered. 15 C.C.R. § 3349.4.5(f)(5). On

24 information and belief, this will prevent witnesses from hearing whether the prisoner expresses

25 pain and also any statements by execution-team members that indicate whether the execution is

26 proceeding according to plan.

27

22. Aside from the issue of pain, society also has an interest in observing portions of

28 the execution process that could be perceived as undignified or inhumane. As an example, the

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1 guillotine, as a method of execution, may well be painless. Nonetheless, society has an interest

2 in observing the physical effect of a guillotine on the body of an executed inmate because many

3 members of society may find these effects to be undignified or inhumane.

4

23. Finally, there is still other socially relevant information—unrelated to the process

5 of dying, indicia of pain, and humaneness or indignity—that may be important to the public. For

6 instance, while fighting off the effects of the sedative, sodium pentothal, an inmate may attempt

7 to express sentiments or information unrelated to pain, such as repentance, confession, anger, or

8 defiance. The First Amendment right of the public and the press encompasses these types of

9 information as well.

10

24. Either pancuronium bromide serves no legitimate functional or penological

11 purpose in the lethal injection protocol, or any incidental legitimate function that it does serve is

12 outweighed by its effect of concealing information that the First Amendment protects.

13 Pancuronium bromide does not meaningfully affect consciousness or the perception of pain.

14 And, when administered as provided for in the Lethal Injection Regulations, it does not hasten

15 death. Thus, pancuronium bromide appears to serve no purpose other than concealing important

16 information about the execution process from the public and the press. Defendants know that

17 pancuronium bromide’s only function is to conceal information, but they continue to administer

18 the drug despite this knowledge.

19

25. Defendants therefore intentionally administer pancuronium bromide to conceal

20 important information from the press and the public. This would not be the first time that

21 defendants and their predecessors incorporated into the lethal injection process procedures

22 intentionally aimed at concealing important information from those viewing the execution.

23 Specifically, in California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir.

24 2002), the plaintiff media organization challenged the San Quentin Prison and Department policy

25 of drawing a physical curtain in front of the lethal injection chamber while prison guards

26 strapped down the inmate and inserted intravenous lines into his arms. On the basis of an

27 internal Department of Corrections memo, the district court found and the Ninth Circuit affirmed

28 that “Procedure 770 was motivated, at least in part, by a concern that the strapping of a

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1 condemned inmate, the injection of intravenous lines or other aspects of a lethal injection

2 execution would be perceived as brutal by the public and thus was, to that extent, prompted by

3 considerations other than legitimate concerns for prison personnel safety.” California First

4 Amendment Coalition, 299 F.3d at 880.

5

ALLEGATIONS IN SUPPORT OF DECLARATORY AND INJUNCTIVE RELIEF

6

26. The inclusion of pancuronium bromide in the Lethal Injection Regulations

7 necessarily impacts Plaintiff’s First and Fourteenth Amendment rights. Pancuronium bromide

8 prevents the press and the public from obtaining various categories of information, including

9 information about the dying process, about pain, about the humaneness and dignity of the

10 process, and about still other information that society values. The press and the public are

11 entitled to each of these types of information, all of which are masked by the Legal Injection

12 Regulations. Additionally, Defendants administer pancuronium bromide with the intention of

13 concealing information from the press and the public. This conduct violates plaintiff’s First and

14 Fourteenth Amendment rights to meaningfully witness and obtain information at executions.

15

27. The Lethal Injection Regulations result in irreparable injury to plaintiff PNS

16 because the information suppressed and concealed by the protocol can never be reacquired.

17

28. This complete and permanent loss of socially valuable information to the press

18 and to the public cannot be redressed by legal remedies.

19

29. Defendants’ prior intentional attempts to conceal information about the execution

20 process from the press and the public weigh in favor of injunctive relief.

21

30. An actual controversy exists between plaintiff and defendants as to whether the

22 Lethal Injection Regulations violate plaintiffs’ First Amendment rights.

23

24

PRAYER FOR RELIEF

25

WHEREFORE, plaintiff Pacific News Service prays for:

26

1. A declaration of the First Amendment rights of plaintiff;

27

2. Temporary, preliminary, and permanent injunctive relief to enjoin the defendants,

28 their officers, agents, servants, employees, and all persons acting in concert with them from

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1 employing an execution procedure that conceals important information to which plaintiff and the

2 public are constitutionally entitled;

3

3. Reasonable attorneys’ fees pursuant to 42 U.S.C. § 1983 and the laws of the

4 United States;

5

4. Costs of suit; and

6

5. Any such other relief as the Court deems just and proper.

7 Dated: October 6, 2010 8 9

ACLU FOUNDATION OF NORTHERN CALIFORNIA
KEKER & VAN NEST, LLP

10

By: /s/ Wendy J. Thurm

11

WENDY J. THURM

Attorneys for Plaintiff

12

PACIFIC NEWS SERVICE

13

14

15

16

17

18

19

20

21

22

23

24

25

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514664.01

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SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO. C 06 1793 JF HRL

 
 Case3:06-cv-01793-RS Document81 Filed10/25/10 Page1 of 8

1 EDMUND G. BROWN JR. Attorney General of California
2 THOMAS S. PATTERSON Supervising Deputy Attorney General
3 MICHAEL J. QUINN Deputy Attorney General
4 State Bar No. 209542 455 Golden Gate Avenue, Suite 11000
5 San Francisco, CA 94102-7004 Telephone: (415) 703-5726
6 Fax: (415) 703-5843 E-mail: Michael.Quinn@doj.ca.gov
7 Attorneys for Defendants Schwarzenegger, Cate, and Cullen
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE NORTHERN DISTRICT OF CALIFORNIA
10 SAN JOSE DIVISION
11

12

13 PACIFIC NEWS SERVICE,

C 06-1793 JF

14

15

v.

16 MATTHEW CATE, et al.,
17

18

19

20

21

Plaintiff, Defendants.

DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS THE SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER FRCP 12(b)(6) FOR FAILURE TO STATE A CLAIM

Date:

December 2, 2010

Time:

1:30 p.m.

Dept:

Ct. Rm. 3, 5th Fl.

Judge

The Honorable Jeremy Fogel

Trial Date None

Action Filed: March 21, 2006

22

23

24

25

26

27

28

Defs.’ Memo. P & A Supp. Mot. Dismiss (C 06-1793 JF)

Case3:06-cv-01793-RS Document81 Filed10/25/10 Page2 of 8

1

Defendants Governor Arnold Schwarzenegger, Secretary Matthew Cate, and Warden

2 Vincent Cullen (Defendants) submit their Memorandum of Points and Authorities in Support of

3 their Motion to Dismiss the second amended complaint under FRCP 12(b)(6) for failure to state a

4 claim.

5

INTRODUCTION

6

In California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002)

7 (CFAC), the Ninth Circuit defined the press and the public’s right to view executions under the

8 First Amendment. There, the court concluded that the press and the public have the right to view

9 executions from the moment the condemned is escorted into the execution chamber, including

10 those initial procedures that are inextricably intertwined with the process of putting the

11 condemned inmate to death. CFAC, 299 F.3d at 877.

12

Plaintiff’s second amended complaint, which alleges that pancuronium bromide functions

13 as a “chemical curtain” that conceals information from the press and the public, does not state a

14 claim for relief. The use of pancuronium bromide during a lethal-injection execution does not

15 impede the right that was defined in CFAC because that drug does not affect Plaintiff’s ability to

16 watch the condemned inmate enter the execution chamber, be attached to the execution device,

17 and then die. Id. at 876. Plaintiff, in arguing that the use of pancuronium bromide violates its

18 right of access to public proceedings under the First Amendment, is essentially seeking to observe

19 a different execution proceeding than the State affords by prescribing the drug combination that

20 will be used. However, nothing in CFAC gives Plaintiff the right to dictate the method that the

21 State uses to perform a lethal-injection execution. Accordingly, because the second amended

22 complaint fails to set forth a legally cognizable claim under the First Amendment, it should be

23 dismissed.

24

The second amended complaint should also be dismissed because the Supreme Court’s

25 recent decision in Baze v. Rees, 553 U.S. 35 (2008), demonstrates that there is a “constitutionally

26 legitimate and justifiable reason for administering pancuronium bromide.” (2d Am. Compl. 5:1-

27 2.) In upholding Kentucky’s three-drug lethal-injection protocol, the Court stated that the state’s

28 use of pancuronium bromide did not offend the Eighth Amendment. Id. at 57-58. It also noted 1
Defs.’ Memo. P & A Supp. Mot. Dismiss (C 06-1793 JF)

Case3:06-cv-01793-RS Document81 Filed10/25/10 Page3 of 8

1 that pancuronium bromide serves two purposes during an execution. First, it preserves the

2 dignity of the procedure by preventing involuntary physical movements during unconsciousness

3 that could accompany the injection of the third drug, potassium chloride. Id. at 57. Second, it

4 stops respiration, hastening death. Id. Given that Defendants have legitimate reasons for

5 administering pancuronium bromide, the second amended complaint should be dismissed.

6

STATEMENT OF THE ISSUE

7

Whether Plaintiff’s second amended complaint, which alleges that the use of pancuronium

8 bromide during a lethal-injection execution functions as a “chemical curtain” that conceals

9 information from the press and the public, states a claim upon which relief can be granted.

10

STATEMENT OF FACTS

11

In its second amended complaint for declaratory and injunctive relief, Plaintiff, a media

12 organization that reports on California executions, seeks temporary, preliminary, and permanent

13 injunctive relief to prevent Defendants from executing any death row inmates in a manner that

14 allegedly conceals important information to which the public is constitutionally entitled. (Sec.

15 Am. Compl. at 1:10-13.)

16

In this case, Plaintiff does not dispute that Defendants permit the press to view execution

17 proceedings. Rather, Plaintiff essentially complains that it is unable to observe a lethal-injection

18 execution conducted without pancuronium bromide. Plaintiff contends that Defendants’ use of

19 pancuronium bromide, a paralytic agent that allegedly acts as a “chemical curtain” over the lethal-

20 injection process, makes it impossible for witnesses to “view adequately” the dying process. (Sec.

21 Am. Compl. at 1:17-19.) PNS alleges that pancuronium bromide (1) prevents society from

22 watching, in a meaningful way, executed inmates die (Sec. Am. Compl. at 6:5-7); (2) suppresses

23 information about whether the inmate experiences pain, and if so, how much (Sec. Am. Compl. at

24 6:8-10); (3) conceals information from members of the press and the public about whether pain is

25 present or absent (Sec. Am. Compl. at 6:23-24); and (4) masks both disputed and undisputed

26 indicia of pain or consciousness (Sec. Am. Compl. at 7:2-3). PNS also alleges that the use of

27 pancuronium bromide prevents the public and the press from obtaining other “socially relevant

28 2
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Case3:06-cv-01793-RS Document81 Filed10/25/10 Page4 of 8

1 information,” including an inmate’s attempt to express “repentance, confession, anger or

2 defiance” while fighting off the effects of the sodium pentothal. (Sec. Am. Compl. at 8:5-8.)

3

STANDARD OF REVIEW

4 I. THE STANDARD FOR RULE 12(B)(6) MOTIONS.

5

A Rule 12(b)(6) motion tests the “legal sufficiency of the claim or claims stated in the

6 complaint.” Beliveau v. Caras, 873 F. Supp. 1393, 1395 (C.D. Cal. 1995) (quoting Schwarzer,

7 Tashima and Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial,

8 §9:187 (1994)). Although Federal Rule of Civil Procedure 8(a)(2) does not require a complaint to

9 contain specific facts, it does require the complaint to plead “enough facts to state a claim to relief

10 that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)

11 (abrogating the “no set of facts” language of Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In

12 other words, Plaintiff is obligated to provide “more than labels and conclusions, and a formulaic

13 recitation of the elements of a cause of action.” Id. at 555. The complaint has to have enough

14 factual allegations “to raise a right to relief above the speculative level.” Id.

15 16 I. 17 18 19

ARGUMENT THE SECOND AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE IT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. A. The Decision in California First Amendment Coalition v. Woodford, Which
Established a First Amendment Right of the Press and the Public to View an Execution, Does Not Support Plaintiff’s Claim.

20

In California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002)

21 (CFAC), the Ninth Circuit examined the extent to which the public and the press are entitled to

22 view an execution. There, the press plaintiffs challenged a procedure that prohibited witnesses

23 from observing an execution until after the execution team had brought the condemned into the

24 chamber, inserted the intravenous lines, and left him alone to await the order to dispense the

25 chemicals. Id. at 870.

26

CFAC recognized that there was both an historical tradition—beginning with entirely

27 public executions and continuing with the practice of inviting official witnesses—and a functional

28 importance of public access to executions. Id. at 877. According to the court, the “public and 3
Defs.’ Memo. P & A Supp. Mot. Dismiss (C 06-1793 JF)

Case3:06-cv-01793-RS Document81 Filed10/25/10 Page5 of 8

1 press historically have been allowed to watch the condemned inmate enter the execution place, be

2 attached to the execution device, and then die.” Id. at 876. Historical practice strongly supported

3 the public’s First Amendment right to view the condemned as the guards escorted him into the

4 chamber, strapped him to the gurney, and inserted the intravenous lines. Id.

5

The court also noted that independent public scrutiny—made possible by the public and

6 media witnesses to an execution—played a significant role in the proper functioning of capital

7 punishment. Id. In determining whether lethal-injection executions are “fairly and humanely

8 administered, or whether they ever can be, citizens must have reliable information about the

9 ‘initial procedures,’ which are invasive, possibly painful and may give rise to serious

10 complications.” Id. The decision added that the information is best gathered first-hand or from

11 the media, which serves as the public’s surrogate. Id. Therefore, the court held that the public

12 enjoyed a First Amendment right to view executions from the moment the condemned is escorted

13 into the execution chamber, including those “initial procedures” that are inextricably intertwined

14 with the process of putting the condemned inmate to death. Id. at 877.

15

Neither the historical tradition of access to executions nor the functional importance of

16 providing public access to executions supports Plaintiff’s claim. To the contrary, Plaintiff’s

17 second amended complaint fails to set forth any violation of the First Amendment or any other

18 claim upon which relief can be granted, since the state’s use of pancuronium bromide does not

19 restrict Plaintiff’s access to or ability to view an execution. Moreover, nothing in the CFAC

20 decision gives Plaintiff the power to dictate the particular drugs that the State can use in order to

21 perform an execution by lethal injection.

22

1. The Use of Pancuronium Bromide Does Not Violate Plaintiff’s First

Amendment Right to Observe an Execution. 23

24

As mentioned, under CFAC, Plaintiff has the right to view executions “from the moment

25 the condemned enters the execution chamber through, to and including, the time the condemned

26 is declared dead.” 299 F.3d at 885-86. In its second amended complaint, Plaintiff asserts that

27 “pancuronium bromide acts as a chemical curtain that conceals indicia of pain from the members

28 of the press and the public that are observing the executions.” (2d Am. Compl. 6:20-22.) 4
Defs.’ Memo. P & A Supp. Mot. Dismiss (C 06-1793 JF)

Case3:06-cv-01793-RS Document81 Filed10/25/10 Page6 of 8

1 Plaintiff also contends that pancuronium bromide is administered with the intention of concealing

2 information from the press and the public. (Id. at 9:12-14.)

3

Even if this Court accepts as true all of Plaintiff’s allegations regarding the use of

4 pancuronium bromide (which it must when analyzing a Rule 12(b)(6) motion), the amended

5 complaint fails to set forth a claim upon which relief can be granted. Defendants’ use of

6 pancuronium bromide during a lethal-injection execution does not impede Plaintiff’s ability to

7 exercise the First Amendment right to view executions that was delineated in CFAC. To the

8 contrary, Plaintiff, under the lethal-injection regulations, has the right to examine the execution

9 process from the moment the condemned is escorted into the lethal-injection chamber, and has no

10 restrictions on what it may observe, publish, or choose to withhold. Cal. Code Regs. tit. 15, §

11 3349.4.4(a)(6) (2010). Nothing in Plaintiff’s amended complaint suggests that Plaintiff will be

12 denied the opportunity to view every aspect of the execution procedure authorized by the courts.

13 Because the administration of pancuronium bromide does not hinder Plaintiff’s right of access to

14 view a lethal injection execution, the amended complaint does not state a claim that merits relief.

15

2. Nothing in the CFAC Decision Permits the Press or the Public to

Define How an Execution Should Be Conducted. 16

17

Although Plaintiff has the right to observe an execution from the moment the condemned is

18 led into the execution chamber, the CFAC decision does not provide the press or the public with

19 the right to dictate how the state performs an execution or manipulate what is being observed. If

20 the State were planning to execute a condemned inmate by electric chair, hanging, or firing squad,

21 Plaintiff would have a right to attend and view the proceedings under CFAC. However, in those

22 situations, Plaintiff would not have a First Amendment right to challenge the amount of electricity

23 used to execute the condemned inmate, the number of bullets used by a firing squad, or the type

24 of rope employed in a hanging on the grounds that a different method would enable Plaintiff to

25 better view the “dying process” or to observe the physical impact of the procedures on the inmate.

26 (Sec. Am. Compl. at 1:17-19.) Plaintiff similarly lacks a First Amendment right to object to the

27 use of pancuronium bromide in the course of a lethal injection execution on those grounds.

28 5
Defs.’ Memo. P & A Supp. Mot. Dismiss (C 06-1793 JF)

Case3:06-cv-01793-RS Document81 Filed10/25/10 Page7 of 8

1

The U.S. Supreme Court has recognized that the Constitution does not accord the press

2 special access to information not shared by members of the public generally. Pell v. Procunier,

3 417 U.S. 817, 834 (1974). In objecting to the use of pancuronium bromide, Plaintiff demands

4 more than special access–it seeks the unprecedented right to alter the method used by the State to

5 perform a lethal-injection execution. However, because Plaintiff’s only interest under the First

6 Amendment is viewing the execution that is actually provided by the State, rather than viewing

7 some other execution comporting more closely to its preferences, the second amended complaint

8 does not state a claim for relief. If CFAC were read as Plaintiff urges, every execution would be

9 subject to challenges on the theory that it “masks” or places a “curtain” over what would occur if

10 the execution were only conducted differently. Furthermore, every change in the execution

11 process would provide a basis for challenging the next execution. Accordingly, because the First

12 Amendment does not provide Plaintiff with the sweeping power to change the State’s execution

13 methods, the second amended complaint should be dismissed.

14

B. The Supreme Court’s Decision in Baze v. Rees Demonstrates That There Is

a Constitutionally Legitimate Reason for Administering Pancuronium

15

Bromide.

16

In Baze v. Rees, 553 U.S. 35, 63 (2008), the United States Supreme Court upheld

17 Kentucky’s three-drug lethal-injection protocol against allegations that it violated the Eighth

18 Amendment’s guarantee against cruel and unusual punishment. The Court’s opinion noted that

19 Kentucky’s use of pancuronium bromide did not violate the Eighth Amendment. Id. at 57-58. To

20 the contrary, administering pancuronium bromide during a lethal-injection execution served two

21 valid purposes. Id. at 57. First, it ensured the dignity of the procedure by preventing involuntary

22 physical movements during unconsciousness that could accompany the injection of potassium

23 chloride. Id. Second, it stopped respiration, hastening death. Id.

24

Plaintiff’s claims that pancuronium bromide “does not meaningfully affect consciousness or

25 the perception of pain,” does not hasten death, and “appears to serve no purpose other than

26 concealing important information about the execution process from the public and the press” are

27 meritless. (2d Am. Compl. 8:13-16.) The Baze decision establishes that pancuronium bromide

28 serves a valid purpose in lethal-injection executions and does not violate the Eighth Amendment. 6
Defs.’ Memo. P & A Supp. Mot. Dismiss (C 06-1793 JF)

Case3:06-cv-01793-RS Document81 Filed10/25/10 Page8 of 8

1 Therefore, because the second amended complaint fails to set forth a legally cognizable claim, it

2 should be dismissed.

3

CONCLUSION

4

The press and the public have the right to view executions from the moment the

5 condemned enters the chamber until he is declared dead. Because the use of pancuronium

6 bromide, which the Baze Court found to be constitutional, does not impede Plaintiff’s ability to

7 view a lethal-injection execution, the second amended complaint does not state a claim upon

8 which relief can be granted. Accordingly, the complaint should be dismissed.

9 Dated: October 25, 2010
10
11
12
13

Respectfully Submitted, EDMUND G. BROWN JR. Attorney General of California THOMAS S. PATTERSON Supervising Deputy Attorney General

14
15
16
17 SF2006402675 18 20361285.docx

s/ Michael J. Quinn MICHAEL J. QUINN Deputy Attorney General Attorneys for Defendants Schwarzenegger, Cate, and Cullen

19

20

21

22

23

24

25

26

27

28 7
Defs.’ Memo. P & A Supp. Mot. Dismiss (C 06-1793 JF)

 
 Case 3:06-cv-01793-RS Document 129 Filed 08/10/12 Page 1 of 1

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN FRANCISCO DIVISION

4 Michael Angelo MORALES et al.,
5 Plaintiffs,
6 v.
7 Matthew CATE, Secretary of the California
8 Department of Corrections and Rehabilitation, et al.,
9 Defendants.
10 PACIFIC NEWS SERVICE,

11 Plaintiff,

12 v.

13 Matthew CATE, Secretary of the California

14

Department of Corrections and Rehabilitation, et al.,

15

Defendants.

16

Case Number 3-6-cv-219-RS-HRL Case Number 3-6-cv-926-RS-HRL DEATH-PENALTY CASE SCHEDULING ORDER
Case Number 3-6-cv-1793-RS-HRL DEATH-PENALTY CASE SCHEDULING ORDER

17

Pursuant to the parties’ stipulation, (Morales I, Doc. No. 552; Pac. News Serv., Doc. No.

18 128), the Court hereby vacates the current stipulated schedule, (Morales I, Doc. No. 531;

19 Morales II, Doc. No. 74; Pac. News Serv., Doc. No. 124), and adopts the parties’ proposed

20 schedule, (Morales I, Doc. No. 552 at 2; Pac. News Serv., Doc. No. 128 at 2). The parties shall

21 submit a new proposed schedule within thirty days after (1) viable lethal-injection regulations

22 are in place or (2) the Marin Superior Court’s decision invalidating the regulations, Sims v. Cal.

23 Dep’t of Corr. & Rehab., No. CIV 1004019 (Cal. Super. Ct. Marin Cnty. Feb. 21, 2012), is

24 overturned on appellate review, whichever occurs first.

25

It is so ordered.

26 27 DATED: August 10, 2012 28

__________________________________ RICHARD SEEBORG United States District Judge

Case Nos. 3-6-cv-219-RS-HRL, 3-6-cv-926-RS-HRL, & 3-6-cv-1793-RS-HRL SCHEDULING ORDER (DPSAGOK)

 
 Case3:06-cv-01793-RS Document125 Filed04/05/12 Page1 of 2

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11

12 Michael Angelo MORALES et al.,

13

Plaintiffs,

14

v.

15 Matthew CATE, Secretary of the California Department of Corrections and Rehabilitation,
16 et al.,

Case Number 3-6-cv-219-RS-HRL Case Number 3-6-cv-926-RS-HRL
DEATH-PENALTY CASE
ORDER DENYING PLAINTIFFS’ MOTION TO VACATE
[Doc. No. 533]

17

Defendants.

18 PACIFIC NEWS SERVICE,

19

Plaintiff,

20

v.

21 Matthew CATE, Secretary of the California Department of Corrections and Rehabilitation,
22 et al.,

23

Defendants.

Case Number 3-6-cv-1793-RS-HRL
DEATH-PENALTY CASE
ORDER DENYING PLAINTIFFS’ MOTION TO VACATE
[motion not on this action’s docket]

24

25

On November 3, 2011, the Court entered a scheduling order in the present actions, which

26 involve challenges to the constitutionality of the State of California’s protocol for executions by

27 lethal injection; the schedule includes a discovery cut-off date of August 15, 2012. (Morales I,

28 Doc. No. 531; Morales II, Doc. No. 74; Pac. News Serv., Doc. No. 124.) Subsequently, in

Case Nos. 3-6-cv-219-RS-HRL, 3-6-cv-926-RS-HRL, & 3-6-cv-1793-RS-HRL ORDER DENYING PLAINTIFFS’ MOTION TO VACATE (DPSAGOK)

Case3:06-cv-01793-RS Document125 Filed04/05/12 Page2 of 2

1 related state-court litigation, the Marin Superior Court, on state-law grounds, enjoined

2 executions pursuant to that protocol; the state court entered judgment in that case on February

3 23, 2012. Sims v. Cal. Dep’t of Corr. & Rehab., No. CIV 1004019 (Cal. Super. Ct. Marin Cnty.

4 filed Aug. 2, 2010).

5

Plaintiffs move the Court to vacate the current scheduling order, and to direct the parties

6 to submit a new proposed schedule “when viable lethal injection regulations are in place.”

7 (Morales I, Doc. No. 533 at 2.) Defendants take no position on the motion. (Id.)

8

It is unclear whether the Sims litigation has concluded and how precisely that case will

9 affect the present actions.1 Plaintiffs’ motion therefore appears to be premature. In addition, the

10 Court is concerned that the absence of a schedule may result in undue and unnecessary delay in

11 the resolution of the instant actions. Accordingly, the Court denies Plaintiffs’ motion.

12

At the same time, the Court does not intend for the parties to engage in discovery that

13 may become moot and therefore wasteful. Accordingly, the Court is presently staying discovery

14 in these actions. The parties shall file a joint statement containing a proposed schedule or

15 schedules by July 16, 2012.

16

It is so ordered.

17

18

19 DATED: April 5, 2012 20

__________________________________ RICHARD SEEBORG United States District Judge

21

22

23

24

25

1 It is similarly unclear how another related action, this one in Federal District Court in the

26 District of Columbia, may affect the present actions. California’s lethal-injection protocol requires the
use of sodium thiopental, yet it appears that that court has ordered that the California Department of

27 Corrections and Rehabilitation must turn over its supply of sodium thiopental to the FDA. Beaty v. FDA,
No. 1-11-cv-289-RJL, slip op. at 2 (D.D.C. Mar. 27, 2012) (Order, Doc. No. 24); see id. (Mem. Op., Doc.

28 No. 23).

2
Case Nos. 3-6-cv-219-RS-HRL, 3-6-cv-926-RS-HRL, & 3-6-cv-1793-RS-HRL ORDER DENYING PLAINTIFFS’ MOTION TO VACATE (DPSAGOK)

 
 Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 1 of 13
ADRMOP,CAPITAL,CLOSED,E−Filing,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:06−cv−01793−RS

Pacific News Service v. Tilton Assigned to: Hon. Richard Seeborg Referred to: DPLC KC Relate Case Case: 3:06−cv−00219−RS Cause: 42:1983 Civil Rights Act
Plaintiff
Pacific News Service

Date Filed: 03/08/2006 Date Terminated: 12/11/2017 Jury Demand: None Nature of Suit: 535 Death Penalty − Habeas Corpus Jurisdiction: Federal Question
represented by Alan Lawrence Schlosser ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: aschlosser@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jon Burgess Streeter Keker & Van Nest LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: jstreeter@kvn.com TERMINATED: 12/18/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Jill Thurm Keker & Van Nest LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: wendythurm@gmail.com (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay Krishnan Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: akrishnan@keker.com ATTORNEY TO BE NOTICED
Katherine Florey Keker & Van Nest LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: kflorey@kvn.com ATTORNEY TO BE NOTICED

Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 2 of 13
Michael Temple Risher ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: mrisher@aclunc.org ATTORNEY TO BE NOTICED

V. Defendant Jeanne Woodford Acting Secretary of the California Department of Corrections and Rehabilitation
Defendant Warden Steven Ornoski California State Prision at San Quentin
Defendant Warden Robert L. Ayers, Jr.

represented by Michael James Quinn California State Attorney General's Office Correctional Law Section 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415−703−5726 Fax: 415−703−5843 Email: Michael.Quinn@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dane R. Gillette State Attorney General's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415/703−5866 Fax: 415/703−5877 Email: dane.gillette@doj.ca.gov TERMINATED: 10/02/2006 ATTORNEY TO BE NOTICED
Ronald Stephen Matthias Office of Attorney General, State of Cal 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415−510−3823 Email: ronald.matthias@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Michael James Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dane R. Gillette (See above for address) TERMINATED: 10/02/2006 ATTORNEY TO BE NOTICED
represented by Michael James Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dane R. Gillette

Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 3 of 13

(See above for address) TERMINATED: 10/02/2006 ATTORNEY TO BE NOTICED

Thomas Stuart Patterson California Attorney General's Offic 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415−703−5727 Fax: (415) 703−5843 Email: thomas.patterson@doj.ca.gov ATTORNEY TO BE NOTICED

Defendant James E. Tilton

represented by Michael James Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dane R. Gillette (See above for address) TERMINATED: 10/02/2006 ATTORNEY TO BE NOTICED

Thomas Stuart Patterson (See above for address) ATTORNEY TO BE NOTICED

Defendant Governor Arnold Schwarzenegger

represented by Michael James Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Mathew L. Cate

represented by Michael James Quinn (See above for address) ATTORNEY TO BE NOTICED

Defendant Vincent Cullen

represented by Michael James Quinn (See above for address) ATTORNEY TO BE NOTICED

Amicus Michael A. Morales

represented by John R Grele Law Office of John R. Grele 1000 Brannan St. suite 400 San Francisco, CA 94103 (415) 655−8776 Fax: (415) 484−7003 Email: jgrele@earthlink.net ATTORNEY TO BE NOTICED

V. Miscellaneous Habeas Capital Notification

Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 4 of 13

Date Filed 03/08/2006 03/08/2006 03/08/2006 03/08/2006 03/08/2006 03/08/2006 03/08/2006 03/08/2006 03/08/2006
03/08/2006 03/08/2006 03/08/2006 03/09/2006 03/09/2006
03/09/2006

# Docket Text
1 COMPLAINT (no process) against Jeanne Woodford, Steven Ornoski ( Filing fee $ 250, receipt number 5514125.). Filed byPacific News Service. (cv, COURT STAFF) (Filed on 3/8/2006) Additional attachment(s) added on 5/1/2006 (gm, COURT STAFF). (Entered: 03/08/2006)
2 MOTION to Related Cases C06−219 JF and C 926 JF filed by Pacific News Service. (cv, COURT STAFF) (Filed on 3/8/2006) Additional attachment(s) added on 5/1/2006 (gm, COURT STAFF). (Entered: 03/08/2006)
28 Proposed Order re 2 MOTION to Related Case by Pacific News Service. (cv, COURT STAFF) (Filed on 3/8/2006) Additional attachment(s) added on 5/1/2006 (gm, COURT STAFF). (Entered: 03/08/2006)
3 MOTION to Shorten Time, for hearing on MOTION to Consolidate Cases and motion to relate cases filed by Pacific News Service. (cv, COURT STAFF) (Filed on 3/8/2006) Additional attachment(s) added on 5/1/2006 (gm, COURT STAFF). (Entered: 03/08/2006)
4 MEMORANDUM in Support of motion to consolidate filed byPacific News Service. (cv, COURT STAFF) (Filed on 3/8/2006) Additional attachment(s) added on 5/1/2006 (gm, COURT STAFF). (Entered: 03/08/2006)
5 Declaration of Wendy J. Thurm in Support of 3 MOTION to Shorten Time MOTION to Consolidate Cases, 2 MOTION to Related Case filed byPacific News Service. (Related document(s) 3 , 2 ) (cv, COURT STAFF) (Filed on 3/8/2006) Additional attachment(s) added on 5/1/2006 (gm, COURT STAFF). (Entered: 03/08/2006)
29 Proposed Order granting motion to consolidate cases for purposes of discovery and evidentiary hearing by Pacific News Service. (cv, COURT STAFF) (Filed on 3/8/2006) Additional attachment(s) added on 5/1/2006 (gm, COURT STAFF). (Entered: 03/08/2006)
30 Proposed Order re 2 MOTION to Related Case and motion to consolidate cases by Pacific News Service. (cv, COURT STAFF) (Filed on 3/8/2006) Additional attachment(s) added on 5/1/2006 (gm, COURT STAFF). (Entered: 03/08/2006)
6 CERTIFICATE OF SERVICE by Pacific News Service re 3 MOTION to Shorten Time MOTION to Consolidate Cases, 4 Memorandum in Support, 5 Declaration in Support, 1 Complaint, 2 MOTION to Related Case (cv, COURT STAFF) (Filed on 3/8/2006) Additional attachment(s) added on 5/1/2006 (gm, COURT STAFF). (Entered: 03/08/2006)
7 ADR SCHEDULING ORDER: Case Management Statement due by 10/30/2006. Case Management Conference set for 11/6/2006 10:00 AM.. Signed by Judge James Ware on 3/8/96. (Attachments: # 1 standing order)(cv, COURT STAFF) (Filed on 3/8/2006) (Entered: 03/08/2006)
CASE DESIGNATED for Electronic Filing. (cv, COURT STAFF) (Filed on 3/8/2006) (Entered: 03/08/2006)
Remark −clerk forwarded file to chambers to determine if cases are related. (cv, COURT STAFF) (Filed on 3/8/2006) (Entered: 03/08/2006)
Summons Issued as to Jeanne Woodford, Steven Ornoski. (cv, COURT STAFF) (Filed on 3/9/2006) (Entered: 03/09/2006)
8 *** FILED IN ERROR. PLEASE SEE DOCKET # 9 . *** Memorandum in Opposition Opposition To Consolidate Cases For Purposes Of Discovery And Evidentiary Hearing filed byJeanne Woodford. (Matthias, Ronald) (Filed on 3/9/2006) Modified on 3/10/2006 (ewn, COURT STAFF). (Entered: 03/09/2006)
9 Memorandum in Opposition Opposition To Consolidate Cases For Purposes Of Discovery And Evidentiary Hearing filed byJeanne Woodford. (Matthias, Ronald) (Filed on 3/9/2006) (Entered: 03/09/2006)

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03/09/2006 03/09/2006 03/09/2006
03/14/2006 03/16/2006 03/20/2006 03/20/2006 03/21/2006 03/22/2006
03/23/2006 03/24/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/31/2006 04/02/2006 04/03/2006

10 *** FILED IN ERROR *** Order Relating Cases and Setting Hearing on Motion to Consolidate posted by the court (Not signed by Judge Jeremy Fogel) SEE ORDER 11 (jfsec, COURT STAFF) (Filed on 3/9/2006) (Entered: 03/09/2006)
11 ORDER RELATING CASES AND SETTING HEARING ON MOTION TO CONSOLIDATE. Signed by Judge Jeremy Fogel on 3/9/06. (jfsec, COURT STAFF) (Filed on 3/9/2006) (Entered: 03/09/2006)
Set Deadlines/Hearings: Plaintiff may file a reply to Defendants opposition to consolidation filed by 3/16/2006. Motion to consolidate Hearing set for 3/21/2006 01:30 PM in Courtroom 3, 5th Floor, San Jose. Counsel may appear in person or by telephone. (cv, COURT STAFF) (Filed on 3/9/2006) (Entered: 03/10/2006)
Judge Howard R. Lloyd and James Ware no longer assigned to case., Case reassigned to Judge Jeremy Fogel and Richard Seeborg. (lrb, COURT STAFF) (Filed on 3/14/2006) (Entered: 03/14/2006)
12 Reply Memorandum in Support of Motion to Consolidate filed byPacific News Service. (Thurm, Wendy) (Filed on 3/16/2006) (Entered: 03/16/2006)
13 SUMMONS Returned Executed by Pacific News Service. Jeanne Woodford served on 3/9/2006, answer due 3/29/2006. (Thurm, Wendy) (Filed on 3/20/2006) (Entered: 03/20/2006)
14 SUMMONS Returned Executed by Pacific News Service. Steven Ornoski served on 3/9/2006, answer due 3/29/2006. (Thurm, Wendy) (Filed on 3/20/2006) (Entered: 03/20/2006)
15 NOTICE of Appearance by Dane R. Gillette (Gillette, Dane) (Filed on 3/21/2006) (Entered: 03/21/2006)
16 Minute Entry: Motion to Consolidate hearing held on 3/21/2006 before Judge Jeremy Fogel (Date Filed: 3/22/2006). The motion is taken under submission. Case Management Conference held on 3/21/2006 before Judge Jeremy Fogel (Date Filed: 3/22/2006). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 3/22/2006) (Entered: 03/22/2006)
17 Letter from John Grele and Wendy J. Thurm. (Thurm, Wendy) (Filed on 3/23/2006) (Entered: 03/23/2006)
18 Reply Memorandum letter re condolidation motion filed byJeanne Woodford, Steven Ornoski. (Gillette, Dane) (Filed on 3/24/2006) (Entered: 03/24/2006)
19 ORDER DENYING MOTION TO CONSOLIDATE WITHOUT PREJUDICE. Signed by Judge Jeremy Fogel on 3/27/06. (jfsec, COURT STAFF) (Filed on 3/28/2006) (Entered: 03/28/2006)
20 MOTION for Extension of Time to File Answer filed by Jeanne Woodford, Steven Ornoski. (Gillette, Dane) (Filed on 3/28/2006) (Entered: 03/28/2006)
21 MOTION for Extension of Time to File Answer re 20 MOTION for Extension of Time to File Answer proposed order filed by Jeanne Woodford, Steven Ornoski. (Gillette, Dane) (Filed on 3/28/2006) (Entered: 03/28/2006)
22 TRANSCRIPT of Proceedings held on 3/21/2006 before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 3/28/2006) (mhpsec, COURT STAFF). (Entered: 03/29/2006)
23 Memorandum in Opposition re 20 MOTION for Extension of Time to File Answer AND Request for a Case Management Conference filed byPacific News Service. (Thurm, Wendy) (Filed on 3/31/2006) (Entered: 03/31/2006)
24 Reply to Opposition re 20 MOTION for Extension of Time to File Answer defendants' reply to opposition to motion for enlargement of time filed byJeanne Woodford, Steven Ornoski. (Gillette, Dane) (Filed on 4/2/2006) (Entered: 04/02/2006)
25 MOTION for Extension of Time to File Response/Reply DEFENDANT'S REPLY TO OPPOSITION TO MOTION TO ENLARGE TIME filed by Jeanne Woodford. (Gillette, Dane) (Filed on 4/3/2006) (Entered: 04/03/2006)

Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 6 of 13

04/03/2006 04/04/2006 05/05/2006 05/25/2006 05/25/2006 05/26/2006 05/31/2006 06/20/2006 06/27/2006 07/19/2006 07/24/2006 07/28/2006 08/09/2006
08/09/2006
08/09/2006
08/09/2006

26 ORDER GRANTING DEFENDANTS' MOTION TO ENLARGE TIME TO FILE RESPONSIVE PLEADING by Judge Jeremy Fogel 25 (jfsec, COURT STAFF) (Filed on 4/3/2006) (Entered: 04/03/2006)
27 PROTECTIVE ORDER. Signed by Judge Jeremy Fogel on 4/4/06. (jfsec, COURT STAFF) (Filed on 4/4/2006) (Entered: 04/04/2006)
31 NOTICE of Change of Address by Alan L. Schlosser (Schlosser, Alan) (Filed on 5/5/2006) (Entered: 05/05/2006)
32 Proposed Order Stipulation and [Proposed] Order Continuing Date of Hearing for Defendants' Rule 12(b)(6) Motion by Pacific News Service. (Krishnan, Ajay) (Filed on 5/25/2006) (Entered: 05/25/2006)
33 MOTION to Dismiss for Lack of Jurisdiction motion to dismiss complaint filed by Jeanne Woodford, Steven Ornoski. Motion Hearing set for 7/19/2006 01:30 PM in Courtroom #4, 5th Floor, San Jose. (Gillette, Dane) (Filed on 5/25/2006) (Entered: 05/25/2006)
34 ORDER CONTINUING MOTION HEARING DATE. Signed by Judge Jeremy Fogel on 5/26/06. (jfsec, COURT STAFF) (Filed on 5/26/2006) (Entered: 05/26/2006)
35 MOTION to Dismiss COMPLAINT filed by Robert L. Ayers, Jr, James E. Tilton. Motion Hearing set for 7/19/2006 01:30 PM in Courtroom 3, 5th Floor, San Jose. (Gillette, Dane) (Filed on 5/31/2006) (Entered: 05/31/2006)
36 Memorandum in Opposition re 33 MOTION to Dismiss for Lack of Jurisdiction motion to dismiss complaint, 35 MOTION to Dismiss COMPLAINT filed byPacific News Service. (Krishnan, Ajay) (Filed on 6/20/2006) (Entered: 06/20/2006)
37 Reply to Opposition Defendants reply to opposition to motion for summary judgment filed byRobert L. Ayers, Jr, James E. Tilton. (Gillette, Dane) (Filed on 6/27/2006) (Entered: 06/27/2006)
38 Minute Entry: Motion to Dismiss hearing held on 7/19/2006 before Judge Jeremy Fogel. The motion is taken under submission. (Date Filed: 7/19/2006). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 7/19/2006) (Entered: 07/20/2006)
39 ORDER DEFERRING DETERMINATION OF DEFENDANTS' MOTION TO DISMISS COMPLAINT. Signed by Judge Jeremy Fogel on 7/20/06. (jfsec, COURT STAFF) (Filed on 7/24/2006) (Entered: 07/24/2006)
40 TRANSCRIPT of Proceedings held on 7/19/2006 before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 7/28/2006) (mhpsec, COURT STAFF). (Entered: 07/31/2006)
41 NOTICE by Pacific News Service Plaintiff Pacific News Service's Notice of Motion and Motion to Compel (1) Further Investigation, (2) Supplemental Interrogatory Responses, (3) Production of Documents, and (4) Production of an Affidavit Describing Document Search Efforts (Krishnan, Ajay) (Filed on 8/9/2006) (Entered: 08/09/2006)
42 MEMORANDUM in Support Memorandum of Points and Authorities in Support of Plaintiff Pacific News Service's Motion to Compel (1) Further Investigation, (2) Supplemental Interrogatory Responses, (3) Production of Documents, and (4) Production of an Affidavit Describing Document Search Efforts filed byPacific News Service. (Krishnan, Ajay) (Filed on 8/9/2006) (Entered: 08/09/2006)
43 Declaration of Ajay S. Krishnan Declaration of Ajay S. Krishnan In Support of Plaintiff Pacific News Service's Motion to Compel (1) Further Investigation, (2) Supplemental Interrogatory Responses, (3) Production of Documents, and (4) Production of an Affidavit Describing Document Search Efforts filed byPacific News Service. (Attachments: # 1 Exhibit A−M)(Krishnan, Ajay) (Filed on 8/9/2006) (Entered: 08/09/2006)
44 Proposed Order [Proposed] Order Compelling (1) Further Investigation, (2) Supplemental Interrogatory Responses, (3) Production of Documents, and (4) Production of an Affidavit Describing Document Search Efforts by Pacific News

Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 7 of 13

08/11/2006 08/14/2006 08/14/2006 08/17/2006 08/17/2006
08/17/2006 08/18/2006 08/22/2006 08/22/2006 08/30/2006
09/29/2006 09/29/2006
10/02/2006 04/09/2007 05/21/2007 06/01/2007
06/08/2007

Service. (Krishnan, Ajay) (Filed on 8/9/2006) (Entered: 08/09/2006)
45 ORDER REGARDING HEARING ON PLAINTIFF'S MOTION TO COMPEL re 41 filed by Pacific News Service. Signed by Judge Richard Seeborg on 8/11/06. (rssec, COURT STAFF) (Filed on 8/11/2006) (Entered: 08/11/2006)
46 MOTION to Stay ex parte motion to stay discovery filed by Robert L. Ayers, Jr, James E. Tilton. (Gillette, Dane) (Filed on 8/14/2006) (Entered: 08/14/2006)
47 Declaration of Dane R. Gillette in Support of 46 MOTION to Stay ex parte motion to stay discovery filed byRobert L. Ayers, Jr, James E. Tilton. (Related document(s) 46 ) (Gillette, Dane) (Filed on 8/14/2006) (Entered: 08/14/2006)
48 Memorandum in Opposition re 46 MOTION to Stay ex parte motion to stay discovery pending resolution of motion to dismiss filed byPacific News Service. (Krishnan, Ajay) (Filed on 8/17/2006) (Entered: 08/17/2006)
49 DECLARATION of Ajay S. Krishnan in Opposition to 48 Memorandum in Opposition (Declaration in Opposition to Defendants' Ex Parte Motion to Stay Discovery Pending Resolution of Motion to Dismiss) filed byPacific News Service. (Attachments: # 1 Exhibit A − E)(Related document(s) 48 ) (Krishnan, Ajay) (Filed on 8/17/2006) (Entered: 08/17/2006)
50 Memorandum in Opposition to Motion for Stay of Discovery filed byMichael A. Morales. (Grele, John) (Filed on 8/17/2006) (Entered: 08/17/2006)
51 ORDER DENYING DEFENDANTS' MOTION TO STAY DISCOVERY by Judge Jeremy Fogel 46 (jfsec, COURT STAFF) (Filed on 8/18/2006) (Entered: 08/18/2006)
52 Memorandum in Opposition to motion to compel discovery filed byRobert L. Ayers, Jr, James E. Tilton. (Gillette, Dane) (Filed on 8/22/2006) (Entered: 08/22/2006)
53 Declaration in support of opposition to motion to compel discovery filed byRobert L. Ayers, Jr, James E. Tilton. (Gillette, Dane) (Filed on 8/22/2006) (Entered: 08/22/2006)
54 Reply Memorandum In Support of Plaintiff's Motion to Compel (1) Further Investigation, (2) Supplemental Interrog. Responses, (3) Production of Docs, and (4) Production of an Affidavit Describing Document Search Efforts filed byPacific News Service. (Krishnan, Ajay) (Filed on 8/30/2006) (Entered: 08/30/2006)
55 Letter Brief re 41 Notice (Other), Notice (Other) Letter to Hon. Richard Seeborg in support of motion to compel filed byPacific News Service. (Related document(s) 41 ) (Krishnan, Ajay) (Filed on 9/29/2006) (Entered: 09/29/2006)
56 Declaration of Ajay S. Krishnan in Support of 41 Notice (Other), Notice (Other) Supplemental Declaration in Support of Plaintiff's Motion to Compel filed byPacific News Service. (Related document(s) 41 ) (Krishnan, Ajay) (Filed on 9/29/2006) (Entered: 09/29/2006)
57 NOTICE by Robert L. Ayers, Jr, James E. Tilton Notice of Reassignment of Counsel (Patterson, Thomas) (Filed on 10/2/2006) (Entered: 10/02/2006)
58 NOTICE of Change In Counsel by Michael James Quinn NOTICE OF REASSIGNMENT OF COUNSEL (Quinn, Michael) (Filed on 4/9/2007) (Entered: 04/09/2007)
59 ORDER SETTING AGENDA FOR STATUS CONFERENCE . Signed by Judge Jeremy Fogel on 5/21/07. (jfsec, COURT STAFF) (Filed on 5/21/2007) (Entered: 05/21/2007)
60 Minute Entry: Status Conference held on 6/1/07. The Court grants plaintiffs leave to file amended complaints within 30 days. (Date Filed: 6/1/2007). Case is set for hearing and visit to San Quentin prison on 10/1/2007 and 10/2/2007 09:00 AM. (Court Reporter Jana Ridenour.) (dlm, COURT STAFF) (Date Filed: 6/1/2007) (Entered: 06/05/2007)
61 TRANSCRIPT of Proceedings held on 6/1/2007 before Judge Jeremy Fogel. Court Reporter: Jana Ridenour. (dhm, COURT STAFF) (Filed on 6/8/2007) (Entered: 06/09/2007)

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06/11/2007 06/28/2007 07/11/2007 07/13/2007 07/17/2007
07/17/2007
07/17/2007
07/20/2007 09/27/2007 10/01/2007 10/01/2007 10/31/2007
01/11/2010 08/30/2010

62 ORDER FOLLOWING STATUS CONFERENCE. Signed by Judge Jeremy Fogel on 6/6/07. (jfsec, COURT STAFF) (Filed on 6/11/2007) (Entered: 06/11/2007)
63 AMENDED COMPLAINT FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against all defendants. Filed byPacific News Service. (Krishnan, Ajay) (Filed on 6/28/2007) (Entered: 06/28/2007)
Summons Issued as to Arnold Schwarzenegger. on 7/11/2007 (Entered: 07/11/2007)
64 SUMMONS Returned Executed by Pacific News Service. Arnold Schwarzenegger served on 7/11/2007, answer due 7/31/2007. (Krishnan, Ajay) (Filed on 7/13/2007) (Entered: 07/13/2007)
65 MOTION to Dismiss Defendants' Notice of Motion And Motion To Dismiss The First Amended Complaint For Declaratory And Injunctive Relief Under FRCP 12(b)(6) For Failure To State A Claim Or, In The Alternative Under FRCP 12(b)(1) For Lack Of Subject−Matter Jurisdiction filed by Robert L. Ayers, Jr, James E. Tilton, Arnold Schwarzenegger. Motion Hearing set for 9/21/2007 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Quinn, Michael) (Filed on 7/17/2007) (Entered: 07/17/2007)
66 MEMORANDUM in Support Defendants' Memorandum Of Points And Authorities In Support Of Their 65 Motion To Dismiss The First Amended Complaint For Declaratory And Injunctive Relief Under FRCP 12(b)(6) For Failure To State A Claim Or, In The Alternative Under FRCP 12(b)(1) For Lack Of Subject−Matter Jurisdiction filed byRobert L. Ayers, Jr, James E. Tilton, Arnold Schwarzenegger. (Quinn, Michael) (Filed on 7/17/2007) Modified on 7/18/2007 (gm, COURT STAFF). (Entered: 07/17/2007)
67 Proposed Order Granting Defendants' 65 Motion To Dismiss The First Amended Complaint For Declaratory And Injunctive Relief Under FRCP 12(b)(6) For Failure To State A Claim Or, In The Alternative Under FRCP 12(b)(1) For Lack Of Subject−Matter Jurisdiction by Robert L. Ayers, Jr, James E. Tilton, Arnold Schwarzenegger. (Quinn, Michael) (Filed on 7/17/2007) Modified on 7/18/2007 (gm, COURT STAFF). (Entered: 07/17/2007)
68 ORDER RESCHEDULING HEARING ON DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT Motion Hearing set for 10/26/2007 02:00 PM. Signed by Judge Jeremy Fogel on 7/19/07. (jfsec, COURT STAFF) (Filed on 7/20/2007) (Entered: 07/20/2007)
69 ORDER FOLLOWING GRANT OF CERTIORARI IN BAZE V. REES. Signed by Judge Jeremy Fogel on 9/26/07. (jfsec, COURT STAFF) (Filed on 9/27/2007) (Entered: 09/27/2007)
70 Letter from Wendy J. Thurm to The Honorable Jeremy D. Fogel. (Thurm, Wendy) (Filed on 10/1/2007) (Entered: 10/01/2007)
71 Letter from Michael J. Quinn , Deputy Attorney General. (Quinn, Michael) (Filed on 10/1/2007) (Entered: 10/01/2007)
72 Minute Entry: Motion Hearing held on 10/30/2007 before Judge Richard Seeborg (Date Filed: 10/31/2007) re (358 in 5:06−cv−00219−JF) MOTION for Protective Order [NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER] filed by James E. Tilton, Arnold Schwarzengger, Robert L. Ayers, Jr., (342 in 5:06−cv−00219−JF) Third MOTION to Compel Discovery filed by Michael A. Morales. (Court Reporter Irene Rodriguez.) (mpb, COURT STAFF) (Date Filed: 10/31/2007) (Entered: 10/31/2007)
73 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Howard R. Lloyd for all further discovery matters. Magistrate Judge Richard Seeborg no longer assigned to the case.Signed by The Executive Committee on 01/11/10. (tsh, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
74 Statement of Pacific News Services Position In Response To Courts August 6, 2010 Order by Pacific News Service. (Krishnan, Ajay) (Filed on 8/30/2010) (Entered: 08/30/2010)

Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 9 of 13

09/02/2010 09/28/2010 09/28/2010 10/06/2010 10/07/2010 10/25/2010 10/25/2010 10/25/2010
10/26/2010 11/04/2010 11/04/2010 11/04/2010 11/04/2010 11/04/2010

75 ORDER SETTING JOINT STATUS CONFERENCE. A Status Conference is set for 9/21/2010 at 3:00 PM in Courtroom 3, 5th Floor, San Jose. Signed by Judge Jeremy Fogel on 9/2/2010. (jflc2, COURT STAFF) (Filed on 9/2/2010) (Entered: 09/02/2010)
76 Statement in Response to Court's Order Directing Briefing Following Remand by Pacific News Service. (Thurm, Wendy) (Filed on 9/28/2010) (Entered: 09/28/2010)
77 Declaration of Ajay S. Krishnan in Support of 76 Statement in Response to Court's Order Directing Briefing Following Remand filed byPacific News Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 76 ) (Krishnan, Ajay) (Filed on 9/28/2010) (Entered: 09/28/2010)
78 *** FILED IN ERROR. PLEASE SEE DOCKET # 79 . *** AMENDED COMPLAINT (Second) against Pacific News Service. Filed byPacific News Service. (Thurm, Wendy) (Filed on 10/6/2010) Modified on 10/7/2010 (ewn, COURT STAFF). (Entered: 10/06/2010)
79 AMENDED DOCUMENT by Pacific News Service. SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF. (Thurm, Wendy) (Filed on 10/7/2010) (Entered: 10/07/2010)
80 MOTION to Dismiss THE SECOND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER FRCP 12(b)(6) for failure to state a claim filed by Arnold Schwarzenegger, Mathew L. Cate, Vincent Cullen. Motion Hearing set for 12/2/2010 01:30 PM in Courtroom 3, 5th Floor, San Jose. (Quinn, Michael) (Filed on 10/25/2010) (Entered: 10/25/2010)
81 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR 80 MOTION TO DISMISS THE SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUCTIVE RELIEF filed by Mathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. (Quinn, Michael) (Filed on 10/25/2010) Modified on 11/15/2010 (gm, COURT STAFF). (Entered: 10/25/2010)
82 Proposed Order re 80 MOTION to Dismiss THE SECOND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER FRCP 12(b)(6) for failure to state a claim MOTION to Dismiss THE SECOND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER FRCP 12(b)(6) for failure to state a claim by Mathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. (Quinn, Michael) (Filed on 10/25/2010) (Entered: 10/25/2010)
83 ORDER SCHEDULING BRIEFING OF DEFENDANTS' MOTIONS TO DISMISS. Motion Hearing set for 12/2/2010 01:30 PM in Courtroom 3, 5th Floor, San Jose. Signed by Judge Jeremy Fogel on 10/26/2010. (jflc2, COURT STAFF) (Filed on 10/26/2010) (Entered: 10/26/2010)
84 MOTION to Shorten Time SUPPORTING DECLARATION OF MICHAEL J. QUINN filed by Mathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. Motion Hearing set for 11/16/2010 04:30 PM in Courtroom 3, 5th Floor, San Jose. (Quinn, Michael) (Filed on 11/4/2010) (Entered: 11/04/2010)
85 Proposed Order re 84 MOTION to Shorten Time SUPPORTING DECLARATION OF MICHAEL J. QUINN by Mathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. (Quinn, Michael) (Filed on 11/4/2010) (Entered: 11/04/2010)
86 ERROR: Wrong document attached please see docket entry number 90 for correct pdf document. MOTION to Stay filed by Mathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. Motion Hearing set for 11/16/2010 04:30 PM in Courtroom 3, 5th Floor, San Jose. (Quinn, Michael) (Filed on 11/4/2010) Modified on 11/8/2010 (srm, COURT STAFF). (Entered: 11/04/2010)
87 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR 90 MOTION TO STAY DISCOVERY filed by Mathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. (Quinn, Michael) (Filed on 11/4/2010) Modified on 11/10/2010 (gm, COURT STAFF). (Entered: 11/04/2010)
88 Declaration of MICHAEL J. QUINN in Support of 90 MOTION to Stay DISCOVERY filed byMathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. (Attachments: # 1

Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 10 of 13

11/04/2010 11/05/2010 11/08/2010 11/08/2010
11/08/2010 11/09/2010 11/09/2010 11/10/2010 11/12/2010 11/16/2010
11/17/2010 12/02/2010

Exhibit 1)(Related document(s) 90 ) (Quinn, Michael) (Filed on 11/4/2010) Modified on 11/10/2010 (gm, COURT STAFF). (Entered: 11/04/2010)
89 Proposed Order re 90 MOTION to Stay DISCOVERY by Mathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. (Quinn, Michael) (Filed on 11/4/2010) Modified on 11/10/2010 (gm, COURT STAFF). (Entered: 11/04/2010)
90 MOTION to Stay DISCOVERY filed by Mathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. Motion Hearing set for 11/16/2010 04:30 PM in Courtroom 3, 5th Floor, San Jose. (Quinn, Michael) (Filed on 11/5/2010) (Entered: 11/05/2010)
91 ORDER SHORTENING TIME. Motion Hearing set for 11/16/2010 at 4:30 PM in Courtroom 3, 5th Floor, San Jose. Signed by Judge Jeremy Fogel on 11/4/2010. (jflc2, COURT STAFF) (Filed on 11/8/2010) (Entered: 11/08/2010)
92 Memorandum in Opposition re 81 MOTION to Dismiss MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS THE SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUCTIVE RELIEF, 80 MOTION to Dismiss THE SECOND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER FRCP 12(b)(6) for failure to state a claim MOTION to Dismiss THE SECOND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER FRCP 12(b)(6) for failure to state a claim filed byPacific News Service. (Krishnan, Ajay) (Filed on 11/8/2010) (Entered: 11/08/2010)
93 Declaration of Ajay S. Krishnan in Support of 92 Memorandum in Opposition,, filed byPacific News Service. (Attachments: # 1 Exhibit A)(Related document(s) 92 ) (Krishnan, Ajay) (Filed on 11/8/2010) (Entered: 11/08/2010)
94 DECLARATION of Ajay S. Krishnan in Opposition to 90 MOTION to Stay DISCOVERY filed byPacific News Service. (Related document(s) 90 ) (Krishnan, Ajay) (Filed on 11/9/2010) (Entered: 11/09/2010)
95 Memorandum in Opposition re 90 MOTION to Stay DISCOVERY filed byPacific News Service. (Krishnan, Ajay) (Filed on 11/9/2010) (Entered: 11/09/2010)
96 Reply to 95 Opposition DEFENDANTS' REPLY IN SUPPORT OF MOTION OT STAY DISCOVERY filed byMathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. (Quinn, Michael) (Filed on 11/10/2010) Modified on 11/12/2010 (gm, COURT STAFF). (Entered: 11/10/2010)
97 DEFENDENTS' REPLY IN SUPPORT OF 80 MOTION TO DISMISS filed byMathew L. Cate, Vincent Cullen, Arnold Schwarzenegger. (Quinn, Michael) (Filed on 11/12/2010) Modified on 11/15/2010 (gm, COURT STAFF). (Entered: 11/12/2010)
99 Minute Entry: Motion Hearing held on 11/16/2010 before Judge Jeremy Fogel (Date Filed: 11/16/2010) re (436 in 5:06−cv−00219−JF, 436 in 5:06−cv−00219−JF) MOTION to Stay DISCOVERY MOTION for Protective Order STAYING DISCOVERY filed by Vincent Cullen, Arnold Schwarzengger, Cate Matthew, (90 in 5:06−cv−01793−JF) MOTION to Stay DISCOVERY filed by Vincent Cullen, Mathew L. Cate, Arnold Schwarzenegger, (452 in 5:06−cv−00219−JF) Fourth MOTION to Compel Discovery filed by Albert Greenwood Brown, Michael A. Morales. The motions are taken under submission. (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 11/16/2010) (Entered: 11/17/2010)
98 ORDER GRANTING DEFENDANTS' MOTION TO STAY DISCOVERY AND DENYIG WITHOUT PREJUDICE PLAINTIFFS' FOURTH MOTION TO COMPEL DISCOVERY. Signed by Judge Jeremy Fogel on 11/17/2010. (jflc2, COURT STAFF) (Filed on 11/17/2010) (Entered: 11/17/2010)
100 Minute Entry: Motion Hearing held on 12/2/2010 before Jeremy Fogel (Date Filed: 12/2/2010) re (80 in 5:06−cv−01793−JF) MOTION to Dismiss, (430 in 5:06−cv−00219−JF) MOTION to Dismiss. The motions are taken under submission. Status Conference set for 12/17/2010 10:30 AM in Courtroom 3, 5th Floor, San Jose. (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 12/2/2010) (Entered: 12/07/2010)

Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 11 of 13

12/09/2010
12/16/2010 12/17/2010 12/22/2010 01/04/2011 02/08/2011
02/08/2011 02/09/2011 02/10/2011 02/10/2011 02/10/2011 02/11/2011 02/18/2011 02/18/2011

101 Transcript of Proceedings held on 12/02/2010, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/9/2011. (Fisher, Summer) (Filed on 12/9/2010) (Entered: 12/09/2010)
102 Statement Of Plaintiff Pacific News Service In Advance Of December 17, 2010 Status Conference by Pacific News Service. (Attachments: # 1 Exhibit A)(Krishnan, Ajay) (Filed on 12/16/2010) (Entered: 12/16/2010)
103 Minute Entry: Status Conference held on 12/17/2010 (Date Filed: 12/17/2010). Status Conference set for 2/11/2011 10:30 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 12/17/2010) (Entered: 12/21/2010)
104 SCHEDULING ORDER: Status Conference set for 2/11/2011 11:00 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. Signed by Judge Jeremy Fogel on 12/22/10. (sp, COURT STAFF) (Filed on 12/22/2010) (Entered: 12/23/2010)
105 ORDER SCHEDULING PORTION OF EVIDENTIARY HEARING AT SAN QUENTIN STATE PRISON. Signed by Judge Jeremy Fogel on 1/4/2011. (jflc2, COURT STAFF) (Filed on 1/4/2011) (Entered: 01/04/2011)
106 ***E−FILED IN ERROR***SEE DOCKET# 107 Transcript of Proceedings held on 02/08/2011, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/9/2011. (Fisher, Summer) (Filed on 2/8/2011) Modified on 2/9/2011 (cfeS, COURT STAFF). (Entered: 02/08/2011)
109 Minute Entry: Off−Site Hearing held at San Quentin Prison on 2/8/2011 before Judge Jeremy Fogel (Date Filed: 2/8/2011). (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 2/8/2011) (Entered: 02/10/2011)
107 Transcript of Proceedings held on 02/08/2011, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. (Fisher, Summer) (Filed on 2/9/2011) Modified on 2/14/2011 (jflc2, COURT STAFF). (Entered: 02/09/2011)
108 CLERKS NOTICE The Status Conference set for 2/11/2011 at 10:30 AM has been RESET for 2/11/2011 at 9:45 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. (jflc2, COURT STAFF) (Filed on 2/10/2011) (Entered: 02/10/2011)
110 Statement in Advance of February 11, 2011 Status Conference by Pacific News Service. (Krishnan, Ajay) (Filed on 2/10/2011) (Entered: 02/10/2011)
111 Declaration of Ajay S. Krishnan in Support of 110 Statement in Advance of February 11, 2011 Status Conference filed byPacific News Service. (Related document(s) 110 ) (Krishnan, Ajay) (Filed on 2/10/2011) (Entered: 02/10/2011)
112 Minute Entry: Status Conference held on 2/11/2011 (Date Filed: 2/11/2011). (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 2/11/2011) (Entered: 02/17/2011)
113 Letter Brief in Response to Court Order of February 11, 2011 filed byPacific News Service. (Krishnan, Ajay) (Filed on 2/18/2011) (Entered: 02/18/2011)
114 Declaration of Ajay S. Krishnan in Support of 113 Letter Brief in Response to Court Order of February 11, 2011 filed byPacific News Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit

Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 12 of 13

03/11/2011 04/06/2011 04/29/2011 04/29/2011
04/29/2011 05/16/2011 06/28/2011 07/29/2011 09/01/2011 11/03/2011 04/05/2012 05/29/2012
05/29/2012

G)(Related document(s) 113 ) (Krishnan, Ajay) (Filed on 2/18/2011) (Entered: 02/18/2011)
115 ORDER RE DISCOVERY AND DEFENDANTS' MOTION TO STRIKE. Signed by Judge Jeremy Fogel on 3/11/2011. (jflc2, COURT STAFF) (Filed on 3/11/2011) (Entered: 03/11/2011)
116 ORDER SETTING STATUS CONFERENCE. Status Conference set for 4/29/2011 at 2:00 PM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. Signed by Judge Jeremy Fogel on 4/6/2011. (jflc2, COURT STAFF) (Filed on 4/6/2011) (Entered: 04/06/2011)
117 ORDER DIRECTING PUBLIC RELEASE OF TRANSCRIPT OF STATUS CONFERENCE HELD APRIL 29, 2011. Signed by Judge Jeremy Fogel on 4/29/2011. (jflc2, COURT STAFF) (Filed on 4/29/2011) (Entered: 04/29/2011)
118 Transcript of Proceedings held on 04/29/2011, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 7/28/2011. (Fisher, Summer) (Filed on 4/29/2011) (Entered: 04/29/2011)
119 Minute Entry: Status Conference held on 4/29/2011. (Date Filed: 4/29/2011). (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 4/29/2011) (Entered: 05/04/2011)
120 ORDER APPROVING JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY. Signed by Judge Jeremy Fogel on 5/13/2011. (jflc2, COURT STAFF) (Filed on 5/16/2011) (Entered: 05/16/2011)
121 STIPULATION TO EXTEND DEADLINES SET IN THE COURTS MAY 13, 2011 ORDER RE JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY by Mathew L. Cate. (Quinn, Michael) (Filed on 6/28/2011) (Entered: 06/28/2011)
122 NOTICE of Change of Address by Ajay Krishnan (Krishnan, Ajay) (Filed on 7/29/2011) (Entered: 07/29/2011)
123 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Richard Seeborg for all further proceedings. Judge Hon. Jeremy Fogel no longer assigned to the case. Signed by Executive Committee on 09/01/11. (mab, COURT STAFF) (Filed on 9/1/2011) (Entered: 09/01/2011)
124 STIPULATION AND ORDER SCHEDULE FOR COMPLETING DISCOVERY. Signed by Judge Richard Seeborg on 11/3/11. (cl, COURT STAFF) (Filed on 11/3/2011) (Entered: 11/03/2011)
125 ORDER DENYING PLAINTIFFS' MOTION TO VACATE. Signed by Judge Richard Seeborg on 4/5/12. (cl, COURT STAFF) (Filed on 4/5/2012) (Entered: 04/05/2012)
126 Transcript of Proceedings held on 11/16/2010, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/27/2012. (Fisher, Summer) (Filed on 5/29/2012) (Entered: 05/29/2012)
127 Transcript of Proceedings held on 12/17/2010, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After

Case: 3:06-cv-1793 As of: 04/04/2019 12:19 PM PDT 13 of 13

07/16/2012 08/10/2012 12/18/2014
12/07/2017

that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/27/2012. (Fisher, Summer) (Filed on 5/29/2012) (Entered: 05/29/2012)
128 Statement Joint Statement Containing a Proposed Schedule or Schedules by Mathew L. Cate. (Quinn, Michael) (Filed on 7/16/2012) (Entered: 07/16/2012)
129 SCHEDULING ORDER. Signed by Judge Richard Seeborg on 8/10/12. (cl, COURT STAFF) (Filed on 8/10/2012) (Entered: 08/10/2012)
130 NOTICE of Change In Counsel by Ajay Krishnan (Notice of Withdrawal of Jon Streeter as Counsel for Plaintiff Pacific News Service) (Krishnan, Ajay) (Filed on 12/18/2014) (Entered: 12/18/2014)
131 NOTICE of Voluntary Dismissal by Pacific News Service (Krishnan, Ajay) (Filed on 12/7/2017) (Entered: 12/07/2017)