Case 5:06-cv-01193-F Document 1 Filed 10/27/2006 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

COREY DUANE HAMILTON,

)

)

Plaintiff,

)

)

v.

)

)

(1) JUSTIN JONES, in his capacity as

)

Director Oklahoma Department

)

of Corrections; (2) MARTY SIRMONS, in )

his capacity as Warden, Oklahoma State )

Penitentiary; (3) W. MARK LUTTRULL, )

(4) ROBERT L. RAINEY, (5) EARNEST D.)

WARE, (6) DAVID C. HENNEKE,

)

(7) TED LOGAN, (8) BEVERLY YOUNG )

and (9) ERNEST GODLOVE, in their

)

capacities as members of the Oklahoma )

Board of Corrections; and (10) UNKNOWN )

EXECUTIONERS, in their capacities as )

Employees and/or Agents of the

)

Oklahoma Department of Corrections,

)

)

Defendants.

)

Case No. JURY TRIAL DEMANDED

COMPLAINT

I. PRELIMINARY STATEMENT

1.

Plaintiff Corey Duane Hamilton is a prisoner sentenced to death by the State of

Oklahoma. By statute, Oklahoma employs lethal injection as its method of execution. The

Defendants and the Oklahoma Department of Corrections [hereinafter "ODOC"] have designed a

procedure for carrying out Oklahoma's statutory method of execution that purports to induce

death only after a condemned prisoner has been rendered unconscious and unable to experience

pam. In reality, the policies and practices devised by the Defendants and the ODOC

unnecessarily risk conscious suffering and pain during execution and deliberately ignore and are

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indifferent to infliction of pain and suffering.

2.

This action is brought pursuant to Title 42 U.S.C. § 1983, of the United States

Code for violations and threatened violations of the rights of Plaintiff to be free from cruel and

unusual punishment under the Eighth and Fourteenth Amendments of the United States

Constitution, to be free from arbitrary and capricious Department of Corrections procedures and

protocols in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

Plaintiff seeks equitable and injunctive relief.

3.

This lawsuit does not challenge the fact of the Plaintiffs sentence of death, nor

does it challenge the constitutionality of Oklahoma's statute requiring execution by lethal

injection.

II. PLAINTIFF

4.

Corey Duane Hamilton is a United States citizen and resident of the State of

Oklahoma. He is currently a prisoner under the supervision of the Oklahoma Department of

Corrections, ODOC Number 220423, sentenced to death by lethal injection. Mr. Hamilton is

held at H-Unit ofthe Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 74502-

0097. Mr. Hamilton does not have a scheduled execution date.

Mr. Hamilton's direct appeal was denied by the Oklahoma Court of Criminal

Appeals on February 28, 1997, Hamilton v. State, 937 P.2d 1001 (Okla. Crim. App. 1997),

rehearing denied, 522 U.S. 1059 (1998).

Mr. Hamilton filed an action pursuant to 28 U.S.C. §2254 in N.D. Okla. Case No.

99-CIV-995, on May 10, 2000. Denial of habeas corpus was affirmed sub. nom., Hamilton v.

Mullin, 436 F.3d 1181 (1oth Cir. 2006). A Petition for Writ of Certiorari was filed on (September

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9,2006) No. 04-5067.

III. DEFENDANTS

5.

Defendant Justin Jones is the Director of the Oklahoma Department of

Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma 73111.

6.

Defendant Marty Sirmons is the Warden of Oklahoma State Penitentiary at P.O.

Box 97, McAlester, Oklahoma, 74502-0097.

7.

Defendants Unknown Executioners are the officers, agents, employees, and

successors in office, along with those acting in concert with them, of the Oklahoma Department

of Corrections who will assist in carrying out the execution of Plaintiff. Plaintiff does not yet

know the identities of the Unknown Executioners.

8.

Defendants are acting under color of State law in designing the ODOC execution

protocol and will act under color of State law in selecting and administering to Plaintiff

chemicals in amounts, in combinations, and by methods that will recklessly risk conscious

suffering and pain in the execution of a sentence of death and/or which are deliberately

indifferent to the health, welfare, and safety of the Plaintiff.

IV. JURISDICTION AND VENUE

9.

This action arises under 42 U.S.C. § 1983 to redress the deprivation under color

of state law of rights, privileges, and immunities secured by the Constitution of the United States.

The rights sought to be redressed are guaranteed by the Eighth, Fifth, and Fourteenth

Amendments to the United States Constitution. This Court has jurisdiction over this complaint

pursuant to 28 U.S.C. § 1331 (federal question); § 1343 (civil rights violations); § 2201

(declaratory relief); and § 2202 (further relief).

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10.

Venue is proper in this Court under 28 U.S.C. § 1391 (b) and (c) because Justin

Jones carries out the official business of the Department of Corrections from the Department's

administrative headquarters located in Oklahoma City, Oklahoma, and a substantial portion of

the events giving rise to this claim have occurred and will occur within this district as part of the

official business of the Department of Corrections.

V. EXHAUSTION OF ADMINISTRATIVE REMEDIES

11.

The Plaintiff has attempted to exhaust his administrative remedies as required

under the Prison Litigation Reform Act, 42 U.S.C. § 1997e, by following the procedure set forth

in the Oklahoma Department of Corrections Inmate/Offender Grievance Process. The Oklahoma

Department of Corrections denied the relief requested by the Plaintiff. The Plaintiff avers and

asserts that all conditions precedent for bringing this suit have been met. Copies of the

handwritten log of Plaintiff's requests and denial of relief are attached hereto as Attachment 1. VI. FACTUAL ALLEGATIONSl

12.

Plaintiff realleges and incorporates paragraphs 1 to 11 as if fully set out herein.

13.

Lethal injection has been promoted as a peaceful way to induce death, like

euthanizing a pet - an injection, quick unconsciousness, no struggling or movement, and death

within seconds. With continuing regularity, however, that is not what happens in Oklahoma.

14.

Scott Carpenter was executed by the State of Oklahoma on Thursday, May 8,

1997. At 10 minutes after midnight, as lethal drugs entered his body, witnesses report that Mr.

Carpenter "moaned loudly. He exhaled and then his body convulsed. As the drugs began to take

effect, [Mr.] Carpenter made loud rasping sounds and continued to convulse his muscles [and]

1 These facts are adopted from recent pleadings in similar cases, and to the best belief of counsel 4

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visibly tensed as he struggled to breathe as the color drained from his face.,,2 Four minutes after

the execution began, Mr. Carpenter "[t]urned a deep shade of blue.,,3 Mr. Carpenter "let out a

guttural moan, gasped for breath and convulsed violently, stretching the belt that strapped his

body to the table as his body arched upward,,,4 his body "shuddered with 18 violent convulsions,

followed by eight lesser ones."s Twelve minutes after the execution began, Mr. Carpenter was

pronounced dead.

15.

Robyn Parks was executed by the State of Oklahoma on Tuesday, March 10,

1992. At forty-two minutes after midnight, the execution began. Mr. Parks said, "I'm still

awake."6 "Less than two minutes after Warden Dan Reynolds ordered the execution to begin,

Parks' body began bucking under straps that held him to a gurney. He spewed out all the air in

his lungs, spraying a cloud of spit."7 Witnesses said "[i]t was overwhelming, stunning,

disturbing."8 Eleven minutes after the execution began, Mr. Parks was pronounced dead.

16.

Loyd LaFevers was executed by the State of Oklahoma on Tuesday, January 30,

2001. As the lethal drugs began to flow, Mr. LaFevers "laid his head back, and he began to go

into convulsions, gasping for breath, his chest heaving."9 He "started raising off the bed" and

accurately state the facts surrounding recent Oklahoma executions. 2Carlton M. Lane, 22-year-old executedfor Eufaula area murder, McAlester News-Capital, May 8, 1997, at 1. 3 Id. 4 Michael Smith, Execution ofKiller a Quiet One, The Tulsa World, May 9, 1997, at A15. S Anthony Thornton, State Fulfills Killer's Wish for Execution, The Daily Oklahoman, May 8, 1997, at 1. 6 Kandra Wells, Parks Body Take To OKC After Execution, McALESTER NEWS-CAPITAL, Mar. 10, 1992, at 2. 7 Wayne Green, 11 Minutes That Took A Lifetime, TULSA WORLD, Mar. 2, 1992, at Al3. 8 Id. 9 Howard Pankratz, Leadville Senator Witnesses Execution ofAunt's Killer, DENVER POST, Jan. 31, 200 1, at BO 1.
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"[t]he rising of his chest and the burst of air happened together over and over, as if he were

gasping."10 "[H]is eyes stayed open."ll "[H]e appeared to have a bruise and swelling in his

left arm ... where he had an IV tube."12 After 6 minutes of convulsions, Mr. LaFevers was

dead.

17.

While the protocol has been changed since these executions, the present policies

and practices followed by the ODOC, will unnecessarily place the Plaintiff at risk of suffering

the same excruciating torturous death as were experienced by Mr. Carpenter, Mr. Parks, and Mr.

LaFevers.

A. Oklahoma's Lethal Injection Legislation and How It Came into Being

18.

After years of a court ordered moratorium on the death penalty, in 1976 the

United States Supreme Court once again upheld capital sentencing procedures.

19.

The problem with restarting executions in Oklahoma was that its electric chair,

last used in 1966, had fallen into disrepair. The State looked for an alternative.

20.

In what became the first proposal in the nation for execution by lethal injection,

the Oklahoma Legislature enacted a statute prescribing that "[t]he punishment of death must be

inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting

barbiturate in combination with a chemical paralytic agent until death is pronounced by a

licensed physician according to accepted standards of medical practice." OKLA. STAT. tit. 22, §

1014 (A) (emphasis added).

21.

The statute prescribes no specific drugs, dosages, drug combinations, manner of

10 Decl. Catherine M. Burton (Feb. 19,2004). 11 Decl. Patrick J. Ehlers (Mar. 1,2004). 12 Decl. Patrick J. Ehlers (Mar. 1,2004).
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intravenous line access, or certifications, training, or licensure for those who participate in

executions. All of the details for carrying out executions were left up to the Department of

Corrections.

B. How Executions Are Performed in Oklahoma

22.

On information and belief, executions by lethal injection III Oklahoma are

performed in the following way: 13

23.

The condemned prisoner is strapped to a gurney.

24.

An EMT14 "or similarly trained person" inserts two intravenous ("IV") lines to the

condemned prisoner, one into each arm.

25.

When the curtains rise on the execution chamber, the IV lines can be seen leaving

the condemned prisoner, draped across the floor of the chamber and passing through a hole in the

wall to the room where the executioners wait. Last statements are made, and then a prison

official orders the execution to begin.

26.

Three lay-executioners then begin plunging eleven hand-held synnges III a

confusing and complicated sequence prescribed by the ODOC protocol. It is not known who, if

anyone, directs the sequence of drug administration for the executioners. The protocol states:

50 cc of Saline will be injected into both lines as a flush.

If the medical personnel are only able to obtain one patent IV, both doses of each drug will be administered in a serial fashion with a saline flush

following the two doses of each drug.

4. The Department of Corrections, State, and County officials, media

J3 The most recent protocol is attached hereto as Exhibit "B". 14 An EMTP is a paramedic licensed personnel trained to provide basic care and life support under the supervision of a physician and/or nurse.
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representatives, and all inmate witnesses will be escorted to the Viewing Room, to be seated one group at a time. 5. The Warden will ask the inmate if he/she wishes to make any last comments.

6. Any person acting in a manner as to impede the execution procedure may be subject to removal from the Execution Area.

7. After such comments as the inmate may make, the Warden will direct the designated persons to administer the lethal chemical agents which will continue by intravenous infusion until such time as the inmate is pronounced dead by the attending physician.

8. In the event a Stay of Execution is granted during the actual administration of the lethal chemical agents, all proceedings will cease immediately. At that time, the shades will be lowered and medical personnel will take action immediately to render emergency measures.

9. The Health Care Center Administrator and Deputy Warden will acquire a sufficient quantity of the previously named chemical agents, and will maintain the security of these chemical agents in accordance with the Chain of Custody document Attachment 2.

10. The drugs are to be prepared by a state-licensed pharmacist. The drugs are to be mixed by the pharmacist placed in the syringes by the pharmacist. The pharmacist shall label each syringe with the name of the drug and the name of the inmate. The pharmacist shall place an easily identifiable number on each syringe so that the syringes are numbered in the order they are to be administered as outlined in this policy. The drugs will be acquired from the pharmacist within 24 hours of the execution.

11. Following the execution, the Warden or designee will receipt the body to the Medical Examiner, and the death warrant will be forwarded to the court from which the judgment was rendered. The warrant will indicate the time, mode, and manner in which the death occurred. Copies of this report and execution log will be sent to Closed Records for filing. Mabel Bassett Correctional Center will receive a copy of the death warrant for female inmates executed.

12. The inmate's personal property and trust fund account will be released to the designated individual(s).

27.

The drugs purportedly administered are: Thiopental (to cause unconsciousness);

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15 Vecuronium Bromide (to cause paralysis and to stop all movement including respiration); and

Potassium Chloride (to stop the heart).

28.

The putative drugs dosages are:

•

1200 milligrams ["mgs"] Thiopental in both arms simultaneously;

•

50 cc's saline in both arms IV line as a flush;

•

20 mgs Vecuronium Bromide in both arms IV line, 2.5 minutes after

beginning administration of the sodium thiopental;

•

50 cc's saline in the each arm IV line as a flush;

•

100 meqs (milliequivalents) Potassium Chloride in the left arm IV line;

and

•

Saline in the left arm IV line.

29.

The process is then repeated by injecting a second round of drugs:

•

100 meqs Potassium Chloride in each of both arms IV lines;

•

50 cc's saline in both arms IV lines as a flush.

30.

The process is intended to deliver two doses of Thiopental through both arms

IV's, two doses of Potassium Chloride (one dose in each arm IV line), and two doses of

Vecuronium Bromide in both arms IV lines.

31.

When an electrocardiogram monitor signals the cessation of electrical activity in

the heart, a physician manually checks the condemned prisoner and pronounces death.

32.

This process recklessly subjects condemned prisoners to significant and utterly

unnecessary risks that they will be tortured to death.

15Thiopental is also known as Sodium Pentothal or Sodium Thiopental and will be referred to as 9

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c. The Risks of ODOC's Lethal Injection Process

33.

There are a number of risks associated with the ODOC's execution process which

include, but are not limited to, the following:

(a) First, in violation of medically approved procedures, the process fails to employ

properly trained persons to carry out what is, in effect, the surgical induction of

anesthesia.

(b) Second, it arbitrarily and unnecessarily uses drugs and drug dosages that create

significant risks that condemned prisoners will suffer completely unnecessary

pain during execution.

(c) Third, it mandates a sequence of drug administration that delays administration of

a portion of the intended anesthetic until after the condemned prisoner is, or

should be, dead.

(d) Fourth, it delivers drugs through two alternating IV lines, impairing control over

the timing and sequence of drug delivery and increasing the risk of drug

administration failure.

a. Because the Drugs Used to Cause Death Are Painful, it Is Necessary That Qualified Persons Create and Maintain IV Access to Ensure Adequate Anesthesia

34.

The drugs used to cause death in an execution by lethal injection are painful.

When a concentrated dose of Potassium Chloride is injected peripherally into the vein of an arm

it feels like a fire traveling through the vein to the heart. Death by Potassium Chloride poisoning

is known to be so excruciating that the American Veterinary Medical Association ("AVMA")

Thiopental in this Complaint.
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prohibits use of Potassium Chloride as the sole agent of euthanasia and, if it is to be used at all,

only used after the subject has reached a surgical plane of anesthesia.

35.

When a neuromuscular blocking agent is administered, it paralyzes all voluntary

muscles. Respiration is impossible. It locks the recipient in a chemical tomb where he is

conscious, but unable to signal distress and unable to breath, and eventually dies by

asphyxiation. Death by asphyxiation involves intense, visceral pain and has, as a method of

execution, been ruled unconstitutional as violative of the Eighth Amendment.

36.

The risks of neuromuscular blocking agents are well known. The AVMA

prohibits the use of neuromuscular blocking agents in combination with the barbiturate

anesthetics. The State of Oklahoma prohibits the use of curariform neuromuscular blocking

drugs in the euthanization of animals.

37.

Lethal injection is only humane if an anesthetic is administered which induces

unconsciousness before neuromuscular blockers stop respiration and Potassium Chloride stops

the heart.

38.

Administration of IV anesthesia requires proficiency at achieving and maintaining

IV access. But the sources of error are many:

(a) IV catheters must be inserted into a vein and not through the vein into tissue. If a

catheter is incorrectly placed, the drugs flowing through the IV lines can infiltrate

the tissue surrounding the catheter rather than correctly entering the vein.

(b) In Oklahoma, because two IV lines are used to administer drugs, two separate IV

catheters must be inserted and both connections to the condemned prisoner's

veins maintained throughout the execution process.

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(c) Once inserted, the catheters are connected with tubing to IV fluid bags. All

mechanical components of the IV system must operate correctly for the drugs to

be correctly delivered, but errors commonly occur: IV tubing sometimes leaks or

becomes disconnected, or the drugs are introduced to the IV system in the wrong

direction, preventing the drugs in the IV line from reaching the patient in the

intended concentrations, or from reaching the patient at all.

39.

Oklahoma employs unqualified persons to create IV access. The EMTP used by

the onoe to insert IV catheters in condemned prisoners; may not be competent to administer

drugs intravenously and are not expert in the process of inserting and maintaining IV catheters.

40.

On information and belief, no one monitors the IV catheters throughout

executions, leaving open the possibility that IV catheters can become disconnected throughout

the process.

41.

In the event that a an EMTP cannot achieve venous access in a peripheral vein in

a hand or arm the onoe is prepared to create venous access through the invasive and painful

processes of inserting a percutaneous central line (tunneling under the skin to reach the

subclavian or central vein) or performing a surgical cut down (where a vein is exposed by

incision or catheritized). Because these techniques of venous access require much more skill and

training and are far more invasive than peripheral vein access, they are normally performed in

highly equipped emergency rooms or operating theatres.

42.

The onoe has failed to specify specifically who has performed these procedures

in the past (and there has been at least one central line venous access performed) or who will

perform them in the future, if necessary, (although the new protocol indicates they will be

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performed by a physician) 16and failed to guarantee that those performing such measures will

have the requisite training to protect condemned inmates from the unnecessary pain caused by

these procedures if they are not performed in the appropriate manner.

43.

On information and belief, Oklahoma uses three lay-executioners to plunge

eleven hand held syringes in a confusing and complicated sequence to deliver the deadly drugs.

The use of untrained persons to plunge syringes risks error in the sequence and rate of drug

administration, N line failures because the executioners cannot observe the IV site and monitor

the condition of the IV catheter for things like infiltrations and blowouts and are not trained to

interpret things like pressure feedback on the IV lines.

44.

Training and experience is essential to the success of the execution as a humane

process. The ODOC's personnel and executioners are not properly trained in the art of

administering intravenous drugs.

b. The Chemical Cocktail Chosen by the ODOC Creates an Unnecessary Risk of Flawed Executions Involving Conscious Suffering

45.

The ODOC has arbitrarily selected three drugs that unnecessarily risk conscious

suffering in the dosages, combinations, and procedures which its executioners use.

46.

The first drug, Thiopental, is an ultra-short acting barbiturate which acts to

depress the central nervous system to produce unconsciousness and anesthesia. Thiopental

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

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

to temporarily anesthetize patients for sufficient time to, for example, intubate the trachea.

16 It is unknown how a physician can perform this execution without violating his ethical duties. 13

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Thiopental is a drug which requires skill to administer and should only be administered by a

person qualified in the use of intravenous anesthetics.

47.

If it is necessary to maintain a patient in a surgical plane of anesthesia for longer

than just a few minutes, drugs other than Thiopental are typically used. If Thiopental is going to

be used not only to induce, but also to maintain, a surgical plane of anesthesia, a qualified person

must be present to assure that the Thiopental has been correctly administered and is maintaining

the patient in a state of unconsciousness.

48.

On information and belief, the ODOC protocol does not require any person to

monitor the plane of anesthesia during execution.

49.

The ODOC has arbitrarily and needlessly selected a dose of Thiopental that is

lower than reliably guarantees a surgical plane of anesthesia for the duration of executions. The

probability of inducing unconsciousness with Thiopental is dose dependent. Dosage is, in tum,

is weight dependent. For example, a 1200 mg dose to a 100-pound man is like a 600 mg dose to

a 200-pound man. Other jurisdictions in the United States typically employ larger doses of

Thiopental than are used in Oklahoma. For example, California administers 5000 mg of

Thiopental. Pharmacokinetic studies which model the uptake, distribution, and elimination of a

1200 mg dose of Thiopental on a range of body weights reveal that a 1200 mg dose of

Thiopental is low enough to risk consciousness in some condemned prisoners during the course

of the execution, even if the drug is fully and effectively delivered. 200 mg. per arm through IV

may not remedy this problem.

50.

The second drug, Vecuronium Bromide, is a neuromuscular blocking agent and a

curariform drug. Neuromuscular blocking agents are used clinically to induce skeletal muscle

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relaxation to facilitate tracheal intubation or to suppress spontaneous respiration.

51.

Neuromuscular blocking agents must be administered with great care because

they have no effect on consciousness or the ability to sense and perceive pain. Unless

consciousness is assessed before the administration of the neuromuscular blocker, the paralysis

induced in the patient will prevent anyone, even a person with advanced medical training, from

ascertaining whether a patient is awake and capable of experiencing pain.

52.

Neuromuscular blocking agents are typically accompanied by product warnings

that require the drugs to be administered by experienced clinicians who are familiar with the

drug's actions and the possible complications of its use and cautioning that the drugs have no

known effect on consciousness, pain threshold, or cerebration. Therefore, administration must

be accompanied by adequate anesthesia or sedation.

53.

The effect of neuromuscular blocking agents III immobilizing patients and

masking external indications of their pain is well known. Patients who have been administered

neuromuscular blocking agents with inadequate anesthesia have been conscious during surgery

and have reported terrifying and torturous experiences where they were alert, experiencing pain,

yet utterly immobilized and unable to signal their distress.

54.

The consequences of erroneous administration of neuromuscular blocking agents

is so profound that at least eighteen states, including Oklahoma, have banned by statute the use

of such drugs in the euthanization of animals. The AVMA never permits the use of

neuromuscular blocking agents in combination with barbiturate anesthetics. The ODOC has thus

settled on a protocol and procedure to kill the State's condemned prisoners that is considered too

risky and dangerous for the euthanization of pets. There is no need to risk the conscious

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suffocation of these prisoners as a result of the administration of neuromuscular blocking agents.

Other drugs are available to satisfy Oklahoma's statutory requirement for a "paralytic agent" that

do not affect respiration. Using these alternate drugs would eliminate the risk that a condemned

prisoner will consciously asphyxiate.

55.

The third drug, Potassium Chloride, contains essential blood ions and is typically

administered in trace amounts as a necessary electrolyte. While a certain potassium level is

important for normal cardiac electrical activity, a rapid increase in blood concentration of

potassium causes cardiac arrest. Injection of concentrated potassium activates sensory nerve

fibers, causing severe pain as the drug travels through the venous system. There is universal

medical agreement that, without anesthesia, an injection of a Potassium Chloride overdose

causes excruciating pain.

56.

The American Veterinary Medical Association is so confident that death by

Potassium Chloride will cause unnecessary suffering that it prohibits its use as a euthanasia agent

unless the practitioner administering the Potassium Chloride has the skill and training to assure

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

57.

The Oklahoma statute does not require the administration of Potassium Chloride

and the ODOC has arbitrarily and needlessly added Potassium Chloride (which is universally

acknowledged to be painful) to the protocol when alternative drugs would serve the statutory

function of a paralytic agent.

c. The Two-Line IV Method Creates an Unnecessary Risk of Flawed Executions That Result in Conscious Suffering

58.

Untrained personnel, the drugs selected, and the order of drug administration,

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each add to the risk of flawed executions in which prisoners consciously suffer pain. When these

factors are combined with the two-line IV method of drug delivery employed by the ODOC, the

risks rise exponentially. By using this two-line method of drug delivery, not used by any other

state in the nation, the ODOC doubles the risks of IV line failures. Such failures can include, but

are not limited to: IV line blockages; infiltrations in which the intravenous injection will diffuse

into the surrounding tissue rather than be delivered into the vein; and other similar eventualities

that result in an ineffective delivery of one or more of the drugs.

59.

There is a grave risk in the ODOC protocol that the right IV line will remain open

(effectively delivering the neuromuscular blocker and Potassium Chloride) while the left line is

blocked or drug delivery is impeded. These circumstances would create a scenario in which the

drug intended to achieve unconsciousness is not effectively delivered and the prisoner will be

conscious when he is suffocated by having his respiration stopped and killed by having his heart

stopped. There is reason to believe that just such eventualities have occurred during Oklahoma

executions.

D. Oklahoma Executions Have Gone Wrong

a. Observed IV Line Access Problems

60.

The ODOC has failed to achieve successful IV access to condemned prisoners. In

2001, witnesses noticed swelling and bruising on Mr. LaFevers's left (Thiopental) arm consistent

with an IV infiltration which prevented effective delivery of the anesthetic intended to alleviate

the inevitable pain accompanying the administration of a neuromuscular blocking agent and

Potassium Chloride. The Warden has told the investigator for the Oklahoma Medical Examiner

he "knew what went wrong" with Mr. LaFevers's execution.

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61.

Autopsy reports show that, on at least seven occasions, executed prisoners have

had multiple acute puncture marks in addition to the IV catheter sites, reflecting that the ODOC

has required multiple attempts to achieve venous access. In at least one execution it was

impossible to achieve peripheral venous access and a central line was required.

62.

IV access irregularities support the conclusions that personnel carrymg out

executions are inadequately trained and qualified.

b. Failure to Administer All Drugs

63.

Autopsy reports reveal at least two cases in which full (unused) syringes of the

anesthetic Thiopental have accompanied bodies to the medical examiner's office. On

information and belief, these data indicate that the ODOC has, on several occasions, arbitrarily

and unnecessarily failed to administer all of the required and intended dose of Thiopental risking

inadequate anesthesia and conscious suffering.

c. Witnesses Reports of Condemned Prisoner Reactions Suggest Inadequate Anesthesia

64.

There are many reports of prisoner reaction to the execution process that are

inconsistent with the rapid and complete onset and maintenance of anesthesia. As previously

discussed, the Carpenter, LaFevers, and Parks executions were accompanied by witness

observations of prisoner response to the execution protocol that is inconsistent with effective

administration of the execution protocol.

65.

Witnesses to other executions also report prisoner comments like "I can taste it"

and shaking and convulsions that are also inconsistent with the rapid and complete onset and

maintenance of anesthesia.

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d. Analytical Data Suggests Inadequate Anesthesia

66.

Postmortem Thiopental blood concentrations, in some cases, cannot be reconciled

with consistent administration of Thiopental and, in some cases, are inconsistent with

antemortem unconsciousness.

E. The Defendants and the ODOC Knew, Or Should Have Known, of Executions Involving the Risk of Conscious Suffering Yet Have Failed to Correct the Execution Process to Minimize That Risk

67.

The Defendants and the ODOC knew, or should have known, that their execution

process is flawed in ways that entail risks of conscious suffering, but have deliberately ignored

those risks and failed to make practicable modifications in the process. The ODOC policy

statement number OP-090901, dated April 12, 1978 (date issued) and May 1, 1978 (effective

date) indicates that the Defendants and the ODOC have been aware since 1978 that adequate N

access is essential to a humane execution, but nevertheless have employed persons unqualified to

achieve IV access as part of the execution process and has failed to employ qualified persons to

monitor N access and the plane of anesthesia throughout the execution process.

68.

The Defendants and the ODOC knew, or should have known, since 1978 that

drugs other than neuromuscular blocking agents or curariform derivatives can serve the statutory

requirement of paralytic agents, but have nevertheless continued to employ drugs known to risk

conscious suffering.

69.

The Defendants and the ODOC knew, or should have known, of botched

executions involving risks of conscious suffering, for example, the Carpenter execution, but have

nevertheless continued to employ drugs, dosages, chemical combinations, and procedures that

risk the needless infliction of conscious suffering. Ron Ward, who was Warden of the Oklahoma

19

Case 5:06-cv-01193-F Document 1 Filed 10/27/2006 Page 20 of 24

State Penitentiary during the Scott Carpenter execution, said that "There was probably more

body action with this one than I've seen"17 and acknowledged that the Carpenter execution took

longer than normal. The Warden during Mr. LaFevers's execution told the investigator for the

Oklahoma Medical Examiner he "knew" what went wrong.

F. The Defendants and the aDaC Have Arbitrarily and Capriciously Modified the Execution Processes Subjecting Condemned Prisoners to Risks of Conscious Suffering

70.

The Defendants and the ODOC have, smce 1990, arbitrarily and capriciously

modified the execution processes to change, for example, the drugs used, the drug amounts,

number of IV lines used to deliver drugs, and personnel involved, exposing condemned prisoners

to risks of conscious suffering.

71.

The sum of the available execution data (witness reports, postmortem Thiopental

levels, execution duration, weight, and other data) indicate that the ODOC protocol has caused a

high frequency of failure to effectively anesthetize condemned prisoners for the duration of

executions.

72.

Botched executions that risk conscious suffering are the direct and inevitable

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

essentially the induction of anesthesia. The ODOC protocol is flawed at nearly every tum in that

it: (1) uses unqualified personnel like EMTP's to insert IV catheters; (3) uses dangerous and

unnecessary drugs (like neuromuscular blockers) in a reckless manner; (4) fails to take the

simple step of assuring that a surgical plane of anesthesia and an actual state of unconsciousness

have been achieved and will continue for the duration of the execution before administering

17 Anthony Thornton, After Apologizing, Killer Dies With Calm Dignity, THE DAILY 20

Case 5:06-cv-01193-F Document 1 Filed 10/27/2006 Page 21 of 24

painful drugs; (5) administers a dose of Thiopental that is unnecessarily dangerously low; and (6)

introduces drugs through two IV lines unnecessarily complicating the execution process and

unnecessarily risking harm.

73.

The consequence of the ODOC protocol is that people are suffering when they are

executed in Oklahoma. They are suffering for more than the transitory period necessarily

attendant to any death. People are suffering for prolonged periods as result of completely

avoidable problems in protocol and procedure. It is possible to conduct execution by lethal

injection in a manner that both complies with Oklahoma's statute and is humane, but the

Defendants and the ODOC have arbitrarily, capriciously, and unnecessarily devised a protocol

for carrying out executions by lethal injection that does not do so.

VII. CLAIM

74.

Plaintiff realleges and incorporates paragraphs 1 to 74 as if fully set out herein.

75.

By subjecting Plaintiff to an arbitrary, capricious and irrational method of

execution that creates an unnecessary and significant risk of inflicting agonizing and prolonged

pain, and by designing and administering a process under which they will inject Plaintiff with

chemicals in amounts, combinations, and by a protocol or protocols that unnecessarily risk

conscious suffering and pain in the execution of a sentence of death, Defendants deprive Plaintiff

of his rights under the Fifth, Eighth and Fourteenth Amendments of the United States

Constitution to be free from cruel and unusual punishment and to be free from arbitrary and

capncIOus processes.

OKLAHOMAN, May 9, 1997, at 9. 21

Case 5:06-cv-01193-F Document 1 Filed 10/27/2006 Page 22 of 24

VIII. PRAYER FOR RELIEF

76.

Plaintiff realleges and incorporates paragraphs 1 to 77 as if fully set out herein.

Wherefore, Plaintiff prays as follows:

77.

That this Honorable Court Issue a judgment declaring that the Defendants

protocols, policies, practices, and acts and omissions as described herein violate Plaintiff s rights

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

States;

78.

That this Honorable Court permanently enjoin Defendants, their officers, agents,

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

in the unlawful practices described herein;

79.

That this Honorable Court retain jurisdiction over this cause until the Court's

order is carried out; and

80.

Any and all other such relief as this Court deems just, proper, and equitable under

the circumstances including staying Plaintiffs execution, if scheduled, until these issues set out

here are resolved.

Respectfully submitted this 26th day of October, 2006, by and through,

sf Robert R. Nigh, Jr. Robert R. Nigh, Jr., OBA #11686 Brewster & DeAngelis, P.L.L.C. 2617 East 21 st Street Tulsa, Oklahoma 74114 (918) 742-2021 - Telephone (918) 742-2197 - Facsimile

22

Case 5:06-cv-01193-F Document 1 Filed 10/27/2006 Page 23 of 24

VERIFICATION

I, Corey D. Hamilton, hereby declare:

1.

I am the petitioner in the above styled case United States Court of Appeals for the

Ninth, Tenth, Eleventh, and Federal Circuit Court of Appeals, and the United States Supreme

Court.

2.

I have reviewed the foregoing complaint. I have personal knowledge of same

matters set forth in the complaint, except as otherwise indicated, and could and would

competently testify to them if called upon to do so. I verify that all of the alleged facts that are

not otherwise supported by citations to the records or declarations attached to the complaint are

true and correct to my own knowledge, except as to any matters stated in it on information and

belief, which I am informed and believe are true and correct.

I declare under penalty of perjury under the laws of the State of Oklahoma and the United States of America that the foregoing is true and correct.

Executed on this 26th day of October, 2006, in Tulsa, Oklahoma.

Corey ane Hamilton

(j 3· /7-6C'l
t'V'ly-;'~m""" t "':>S I ()I'.I CA:jO i (1.<;. ':;.

Case 5:06-cv-01193-F Document 1 Filed 10/27/2006 Page 24 of 24
AFFIDAVIT
Robert Nigh, Jr., being first duly sworn and states as follows:
I am the attorney representing Corey Duane Hamilton in connection with his application for relief under Title 42 U.S.C. § 1983. AO 240 provides a notice to prisoners who are seeking to proceed IFP and they're required to submit an affidavit of all assets. The form indicates, in addition, a Petitioner must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures and balances during the last six months in the institutional account.
Mr. Hamilton requested to receive this information from the institution approximately one month ago but has received no response. Counsel for Petitioner made an additional request for this information from the appropriate institutional officer, and was told that the information would not be available until October 27, 2006. Counsel will submit a supplement to the application to proceed without prepayment of fees and affidavit with the information from the institution as soon as it is received.
Further affiant sayeth not.
obert R. Nigh, Jr. Attorney for Plaintiff Corey Duane Ha
Subscribed and sworn to before me, the undersigned, a Notary Public in and for said County and State on this 26th day of October, 2006.
crt+~bliC~
My Commission Expires:
q fl~/01

 
 Case 5:06-cv-01193-F Document 25 Filed 12/04/2006 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

COREY DUANE HAMILTON,

)

)

Plaintiff,

)

)

vs.

)

)

JUSTIN JONES, in his capacity as Director )

Oklahoma Department of Corrections; )

MARTY SIRMONS, in his capacity as )

Warden, Oklahoma State Penitentiary; )

W. MARK LUTTRULL, ROBERT L. )

RAINEY, EARNEST D. WARE, DAVID )

C. HENNEKE, TED LOGAN, BEVERLY )

YOUNG and ERNEST GODLOVE, in their )

capacities as members of the Oklahoma )

Board of Corrections; and UNKNOWN )

EXECUTIONERS, in their capacities as )

Employees and/or Agents of the Oklahoma )

Department of Corrections,

)

)

Defendants.

)

Case No. 06-CV-1193-F

ANSWER

Defendants, Justin Jones, in his capacity as Director Oklahoma Department of Corrections,

Marty Sirmons, in his capacity as Warden of Oklahoma State Penitentiary, Robert L. Rainey, W.

Mark Luttrell, Ernest Godlove, David C. Henneke, Ted Logan, Beverly Young, and Earnest D. Ware,

in their capacities as members of the Oklahoma Board of Corrections, (collectively “Defendants”)

submit their Answer to Plaintiffs’ Complaint on file herein and allege and state:

1. Defendants deny the allegations contained in numerical paragraph 1 of Plaintiff’s

Complaint.

2. Defendants admit Plaintiff is bringing an action under 42 U.S.C. § 1983, but deny any

cause of action has arisen under that authority as otherwise alleged in numerical paragraph 2 of

Plaintiff’s Complaint.

Case 5:06-cv-01193-F Document 25 Filed 12/04/2006 Page 2 of 9
3. Defendants deny the allegations contained in numerical paragraph 3 of Plaintiff’s Complaint.
4. Defendants admit the allegations contained in numerical paragraph 4 of Plaintiff’s Complaint.
5. Defendants admit the allegations contained in numerical paragraph 5 of Plaintiff’s Complaint.
6. Defendants admit the allegations contained in numerical paragraph 6 of Plaintiff’s Complaint.
7. There are no allegations against these Defendants contained in numerical paragraph 7 of Plaintiff’s Complaint.
8. Denied as to allegations of recklessness and deliberate indifference. 9. This paragraph contains jurisdictional statements only. 10. Admitted. 11. Denied as to exhaustion of remedies. 12. Denied. 13. Denied. 14. Denied. (Defendants also deny the substance of Plaintiff’s footnote # 1, and all other allegations that are based on newspaper articles.) 15. Denied. 16. Denied. 17. Denied. 18. Denied. 19. Denied.
2

Case 5:06-cv-01193-F Document 25 Filed 12/04/2006 Page 3 of 9
20. Denied. 21. Denied. 22. Denied. 23. Admitted. 24. Admitted. 25. Denied. 26. Denied as to “confusing and complicated” and the remainder of the paragraph is denied as it appears as written to be taken out of context, by beginning with paragraph # 4. Also, denied as to “it is not known who, if anyone, directs the sequence of drug administration for the executioners” 27. Denied. 28. Denied. 29. Denied. 30. Admitted, although allegations are in the wrong order. 31. Admitted. 32. Denied. 33. Denied. 34. Denied. 35. Denied. 36. Defendants lack sufficient information or knowledge to admit or deny the allegations contained in numerical paragraph 36 of Plaintiff’s Complaint. 37. Denied. 38. Denied.
3

Case 5:06-cv-01193-F Document 25 Filed 12/04/2006 Page 4 of 9
39. Denied. 40. Denied. 41. Denied. 42. Denied. 43. Denied. 44. Denied. 45. Denied. 46. Denied. 47. Admitted. 48. Denied. 49. Denied. 50. Defendants lack sufficient information or knowledge to admit or deny the allegations contained in numerical paragraph 50 of Plaintiff’s Complaint. 51. Defendants lack sufficient information or knowledge to admit or deny the allegations contained in numerical paragraph 51 of Plaintiff’s Complaint. 52. Defendants lack sufficient information or knowledge to admit or deny the allegations contained in numerical paragraph 52 of Plaintiff’s Complaint. 53. Defendants lack sufficient information or knowledge to admit or deny the allegations contained in numerical paragraph 53 of Plaintiff’s Complaint. 54. Defendants deny the allegations contained in numerical paragraph 54 of Plaintiff’s Complaint. 55. This paragraph does not contain any allegations against these Defendants. 56. This paragraph does not contain any allegations against these Defendants.
4

Case 5:06-cv-01193-F Document 25 Filed 12/04/2006 Page 5 of 9
57. Defendants deny the allegations contained in numerical paragraph 57 of Plaintiff’s Complaint.
58. Defendants deny the allegations contained in numerical paragraph 58 of Plaintiff’s Complaint.
59. Defendants deny the allegations contained in numerical paragraph 59 of Plaintiff’s Complaint.
60. Defendants deny the allegations contained in numerical paragraph 60 of Plaintiff’s Complaint.
61. Defendants deny the allegations contained in numerical paragraph 61 of Plaintiff’s Complaint.
62. Defendants deny the allegations contained in numerical paragraph 62 of Plaintiff’s Complaint.
63. Defendants deny the allegations contained in numerical paragraph 63 of Plaintiff’s’ Complaint.
64. Defendants deny the allegations contained in numerical paragraph 64 of Plaintiff’s Complaint.
65. Defendants deny the allegations contained in numerical paragraph 65 of Plaintiff’s Complaint.
66. Defendants deny the allegations contained in numerical paragraph 66 of Plaintiff’s Complaint.
67. Defendants deny the allegations contained in numerical paragraph 67 of Plaintiff’s Complaint.
5

Case 5:06-cv-01193-F Document 25 Filed 12/04/2006 Page 6 of 9
68. Defendants deny the allegations contained in numerical paragraph 68 of Plaintiff’s Complaint.
69. Defendants deny the allegations contained in numerical paragraph 69 of Plaintiff’s Complaint.
70. Defendants deny the allegations contained in numerical paragraph 70 of Plaintiff’s Complaint.
71. Defendants deny the allegations contained in numerical paragraph 71 of Plaintiff’s Complaint.
72. Denied. 73. Defendants deny the allegations contained in numerical paragraph 73 of Plaintiff’s Complaint. 74. Defendants deny the allegations contained in numerical paragraph 74 of Plaintiff’s Complaint. 75. Denied. 76. Denied. 77. Defendants deny that Plaintiff is entitled to the relief sought therein. 78. Defendants deny Plaintiff is entitled to the relief sought in numerical paragraph 78 of Plaintiff’s Complaint. 79. Defendants deny Plaintiff is entitled to the relief sought in numerical paragraph 79 of Plaintiff’s Complaint. 80. Defendants deny Plaintiff is entitled to the relief sought in numerical paragraph 80 of Plaintiff’s Complaint.
6

Case 5:06-cv-01193-F Document 25 Filed 12/04/2006 Page 7 of 9
AFFIRMATIVE DEFENSES Defendants, Justin Jones, in his capacity as Director Oklahoma Department of Corrections, Marty Sirmons, in his capacity as Warden of Oklahoma State Penitentiary, Robert L. Rainey, W. Mark Luttrell, Ernest Godlove, David C. Henneke, Ted Logan, Beverly Young, and Earnest D. Ware, in their capacities as members of the Oklahoma Board of Corrections, (collectively “Defendants”) for their affirmative defenses to Plaintiffs’ Complaint on file herein, allege and state: 1. The Complaint fails to state a claim upon which relief may be granted. 2. The Complaint fails to state a claim for any constitutional violation. 3. The Complaint fails to state a claim for a violation of the Eighth Amendment. 4. The Complaint fails to state a claim for a violation of the Fifth Amendment. 5. The Complaint fails to state a claim under 42 U.S.C. § 1983. 6. The Complaint fails to state a claim for injunctive relief. 7. The Complaint fails to state a claim for declaratory relief. 8. Counsel for Plaintiff violates notice pleading under the FRCP. 9. The claims set forth by Plaintiffs lack ripeness. 10. Plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act 11. Allegations of negligence are insufficient to establish liability under the Eighth Amendment. 12. Plaintiff cannot demonstrate Defendants have exhibited the required culpable state of mind of deliberate indifference. 13. Allegations which constitute a difference of medical opinion are insufficient to establish liability under 42 U.S.C. § 1983.
7

Case 5:06-cv-01193-F Document 25 Filed 12/04/2006 Page 8 of 9
14. Defendants Rainey, Luttrell, Henneke, Godlove, Logaon, Young, and Ware do not personally participate in any facet of the execution process or adoption of lethal injection procedures.
15. Defendants’ policies, practices and procedures relevant hereto are constitutional and meet the minimum medical requirements under prevailing caselaw.
16. Defendants respectfully reserve the right to assert additional affirmative defenses as they become known or relevant through discovery.
Having answered Plaintiff’s Complaint fully, Defendants, Justin Jones, in his capacity as Director Oklahoma Department of Corrections, Marty Sirmons, in his capacity as Warden of Oklahoma State Penitentiary, Robert L. Rainey, W. Mark Luttrell, Ernest Godlove, David C. Henneke, Ted Logan, Beverly Young, and Earnest D. Ware, in their capacities as members of the Oklahoma Board of Corrections, respectfully request the Court to dismiss the same in its entirety. Defendants demand a trial by jury.
Respectfully submitted,
s/ Richard N. Mann RICHARD N. MANN, OBA #11040 Assistant Attorney General Office of Attorney General State of Oklahoma Litigation Section 313 N.E. 21st Street Oklahoma City, Oklahoma 73105 Tele: (405) 521-4274 Fax: (405) 521-4518 Richard_Mann@oag.state.ok.us Attorney for Defendants
8

Case 5:06-cv-01193-F Document 25 Filed 12/04/2006 Page 9 of 9 CERTIFICATE OF SERVICE
I hereby certify that on December 4, 2006, I electronically transmitted the attached document to the Clerk of the Court using the ECF system for filing and transmittal of a Notice of Electronic Filing to the following ECF registrant:
Robert R. Nigh, Jr. Brewster & DeAngelis, P.L.L.C. 2617 East 21st Street Tulsa, Oklahoma 74114 Attorney for Plaintiff
s/ Richard N. Mann Richard N. Mann
9

 
 Case 5:06-cv-01193-F Document 44 Filed 12/28/2006 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

COREY DUANE HAMILTON, Plaintiff,
vs. JUSTIN JONES, et al.,
Defendants.

) ) ) ) ) Case No. CIV-06-1193-F ) ) ) )

ORDER DENYING PRELIMINARY INJUNCTION
Before the court is plaintiff’s Motion for Preliminary Injunction, filed on December 14, 2006 (doc. no. 29). For the reasons stated at length on the record at the conclusion of the hearing which was held on this date, the Motion for Preliminary Injunction is in all things denied. As authorized by Rule 52(a), the court has made its findings of fact and conclusions of law as stated on the record in open court at the conclusion of the hearing.
DATED this 28th day of December, 2006.

06-1193p011.wpd

 
 Case 5:06-cv-01193-F Document 52 Filed 01/08/2007 Page 1 of 1

(ORDER LIST: 549 U.S.)

MONDAY, JANUARY 8, 2007

CERTIORARI DENIED

06-8661 (06A666)

HAMILTON, COREY D. V. JONES, DIR., OK DOC, ET AL.
The application for stay of execution of sentence of death presented to Justice Breyer and by him referred to the Court is denied. The petition for a writ of certiorari is denied.
Justice Stevens and Justice Souter would grant the application for stay of execution.

 
 Case 5:06-cv-01193-F Document 53 Filed 01/10/2007 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

COREY DUANE HAMILTON,

)

)

Plaintiff,

)

)

-vs-

)

)

JUSTIN JONES, Director, Oklahoma )

Department of Corrections, et al.,

)

)

Defendants.

)

Case No. CIV-06-1193-F

ADMINISTRATIVE CLOSING ORDER
It appearing that the issues in this case have become moot, it is ordered that the Clerk administratively terminate this action in his records without prejudice to the rights of the parties to reopen the proceedings for good cause shown, for the entry of any stipulation or order, or for any other proper purpose.
If no party has moved to reopen this case within 30 days of this date, the action shall be deemed to be dismissed. Neither this order nor the deemed dismissal referred to in the preceding sentence shall constitute an adjudication on the merits.
Entered this 10th day of January, 2007.

06-1193p013.doc

 
 Case 5:06-cv-01193-F Document 55 Filed 01/29/2007 Page 1 of 9 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

COREY DUANE HAMILTON,
Plaintiff - Appellant,
v.
JUSTIN JONES, Director, Oklahoma Department of Corrections; MARTY SIRMONS, Warden, Oklahoma State Penitentiary; W. MARK LUTTRULL, ROBERT RAINEY, EARNEST D. WARE, DAVID C. HENNEKE, TED LOGAN, BEVERLY YOUNG, and ERNEST GODLOVE, Oklahoma Board of Corrections; JOHN DOE, Unknown Executioners,
Defendants - Appellees.

No. 06-6381 (D.C. No. 06-CV-1193-F)
(W.D. Oklahoma)

JUDGMENT Filed January 4,2007

Before TACHA, Chief Judge, O'BRIEN and TYMKOVICH, Circuit Judges.

This case originated in the Wester District of Oklahoma and was argued by counsel.

The judgment of that court is affirmed.

Entered for the Court ELISABETH A. SHUMAKER, Clerk

Elisabeth A. Shumaker

Cierk, U.S. Court of

.-- ___ L - .. f..ifo~pecl' 'i'enth Circuit

tiy

~~L./ ~(ty../-_.=-_ _ __

:! .!~''-- r'

~ 1', :. ~.

YeL by: ;£tj! G-
Deputy Clerk

Case 5:06-cv-01193-F

Document 55

Filed 01/29/2007 Page 2 of 9
F I LED
United States Court of Appeals Tenth Circuit

PUBLISH

January 4, 2007

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

COREY DUANE HAMILTON,
Plainti ff-Appellant,
v.
JUSTIN JONES, Director, Oklahoma Department of Corrections; MARTY SIRMONS, Warden, Oklahoma State Penitentiary; W. MARK LUTTRULL, ROBERT L. RAINEY, EARNEST D. WARE, DAVID C. HENNEKE, TED LOGAN, BEVERLY YOUNG, and ERNEST GODLOVE, Oklahoma Board of Corrections; JOHN DOES, Unknown Executioners,
Defendants-Appellees.

No. 06-6381

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 06-CV-1193-F)
Robert R. Nigh, Jr. of Brewster & DeAngelis, P.L.L.C., Tulsa, Oklahoma, for Plaintiff-Appellant.
Jennifer J. Dickson, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Defendants-Appellees.
Before TACHA, Chief Judge, O'BRIEN, and TYMKOVICH, Circuit Judges.

Case 5:06-cv-01193-F Document 55 Filed 01/29/2007 Page 3 of 9
PER CURIAM.
The State of Oklahoma has scheduled plaintiff Corey Duane Hamilton for execution by lethal injection on January 9, 2007. Hamilton's first-degree murder conviction and death sentence were affirmed on direct appeal, Hamilton v. State, 937 P.2d 1001 (Okla. Crim. App. 1997), cert. denied, 522 U.S. 1059 (1998), and have withstood federal constitutional challenge in federal habeas proceedings, Hamilton v. Mullin, 436 F.3d 1181 (lOth Cir.), cert. denied, 127 S. Ct. 560 (2006). On October 27,2006, he commenced this action under 42 U.S.C. § 1983 to challenge the lethal injection protocol to be used for his execution. After an evidentiary hearing on December 28, 2006, the district court denied Hamilton's request for a preliminary injunction to forestall his execution under the protocol. Hamilton then filed this appeal and, in association therewith, moved for a stay of his execution. We exercise jurisdiction under 28 U.S.C. § 1292(a)(1), affirm the denial of injunctive relief, and deny the motion for stay. I
We review the district court's order for an abuse of discretion. Bowersox v. Williams, 517 U.S. 345, 346 (1996) (reviewing order involving stay of execution); Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1299 (10th Cir. 2006) (reviewing
Pursuant to Fed. R. App. P. 35, the panel circulated this opinion to the active judges of the court for sua sponte consideration of whether en banc review was necessary. No active judge called for a poll.
-2-

Case 5:06-cv-01193-F Document 55 Filed 01/29/2007 Page 4 of 9
denial of preliminary injunction). "[L]ike other stay applicants, inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." Hill v. McDonough, 126 S. Ct. 2096,2104 (2006). The inmate must, in addition, satisfy a temporal concern of unique significance in this context: "A court considering a stay [of execution] must also apply 'a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry ofa stay.'" Jd. (quoting Nelson v. Campbell, 541 U.S. 637,650 (2004)). Here, the district court denied relief based both on Hamilton's delay in bringing his constitutional challenge to the lethal-injection protocol and on his failure to demonstrate a likelihood of success on the merits of that challenge. We cannot say the district court abused its discretion in either respect.
Hamilton unreasonably delayed in two ways. First, despite knowing that he faced death by lethal injection and being aware of legal challenges to various lethal-injection protocols, he waited years to pursue any state administrative remedy in this regard. 2 Second, after exhausting that remedy in May 2006, he waited five more months to file this action. This court has taken a strict stance on
2 Counsel conceded at argument that there is no legal impediment under state law to pursuit of lethal-injection challenges prior to the setting of an execution date. See, e.g., Malicoat v. State, 137 P.3d 1234, 1235 (Okla. Crim. App. 2006).
-3-

Case 5:06-cv-01193-F Document 55 Filed 01/29/2007 Page 5 of 9
inmate delay in this context and has, in fact, invoked the presumption recognized in Nelson and Hill in similar circumstances where only the first type of delay noted here was evident, see Patton v. Jones, 193 F. App'x 785,788-89 (lOth Cir.) (unpub.), cert. denied, 127 S. Ct. 28 (2006). While we are not bound by the unpublished panel decision in Patton, we see no reason to diverge from its substance here. Hamilton contends that his delay was reasonable in that he did not feel capable of pursuing this matter until he secured present counsel to initiate it, but the district court did not abuse its discretion in concluding that this explanation was inadequate. Nothing prevented Hamilton from timely initiating an action pro se and asking the court to appoint counsel to assist him, and review of the administrative grievance he submitted suggests no reason to doubt his ability to accomplish this.
Turning to the merits, the Constitution does not require the use of execution procedures that may be medically optimal in other contexts. Rather, the controlling standard is that such procedures "not involve the unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 (l976). Oklahoma's lethal-injection protocol provides in pertinent part that (l) bilateral intravenous fluid drips ("IVs") will be established in the veins of the inmate's arms by "an EMT-P or person with similar qualifications and expertise in IV
-4-

Case 5:06-cv-01193-F Document 55 Filed 01/29/2007 Page 6 of 9
,
insertion,,,3 (2) the EMT-P "will ensure the patency [of the IV] until the time of execution by slow infusion of normal saline or dextrose," (3) the drugs are then introduced bilaterally, starting with 1200 mg doses of sodium thiopental, an ultra-fast-acting barbituate, to anesthetize the inmate and render him unconscious, followed two and one-half minutes later by 20 mg doses of vecuronium bromide to induce paralysis, and then 100 mg doses of potassium chloride to stop the heart and cause death; and (4) if only one IV can be established and confirmed as patent, both doses of each drug are administered serially through that IV. R. doc. 1, Ex. 2 at 3-4. In Patton, this court concluded based on expert testimony that has been incorporated in the record for this case "that [the plaintiff] has failed to establish a significant possibility of success on the merits of his Eighth Amendment claims" and, consequently, that he could not "overcome the presumption created by [his] late filing of his § 1983 action." Patton, 193 F. App'x at 790 (quotation omitted). Again, we see no reason to diverge from the result in that case here.
The district court concluded that the expert testimony presented simply could not demonstrate a risk of harm of constitutional magnitude; in particular, that testimony did not effectively challenge the protocol elements outlined above.
3 In the event IV access cannot be established in the veins of the arms, a physician is present who will gain access through a central line, i.e., an artery elsewhere in the body such as the leg.
-5-

Case 5:06-cv-01193-F Document 55 Filed 01/29/2007 Page 7 of 9
,
The primary criticism voiced by the experts concerned the absence of any provision for monitoring the inmate for signs that the sodium thiopental is in fact reaching him and effecting anesthetization. In light of the precautions already built into the protocol, the district court concluded that the risk of failure that this kind of monitoring would address was simply far too remote to rise to a constitutional level so as to require that it be done in connection with executions. Thus, while monitoring of anesthetization level is the optimal practice appropriate for a surgical operating room (where, significantly, lower doses of anesthetic are used in order to minimize post-surgical "emergence" complications that have no counterpart in the execution setting), the risk inherent in the lethal-injection procedure under review is already so attenuated that we cannot say there is a significant likelihood that a challenge to the protocol under the minimal requirements imposed by the Eighth Amendment on executions could succeed on our record.
The additional evidence adduced by Hamilton at the December 28 hearing does not undermine that conclusion. The focus of the new evidence was a recent execution in Florida that, by credible accounts, was botched because the needles used for the IVs had been pushed completely through the inmate's veins. See generally Fla. Exec. Order No. 06-260 (halting further executions and creating commission to study state lethal-injection protocol following execution of Angel Nieves Diaz on December 13, 2006). The district court properly discounted the
-6-

Case 5:06-cv-01193-F Document 55 Filed 01/29/2007 Page 8 of 9
,
present materiality of that unfortunate incident, noting that the Florida protocol made no provision for the qualifications of the person(s) responsible for establishing and confirming the patency of the IV, while the Oklahoma protocol places this responsibility in the hands of an EMT-P, a professional expressly recognized as fully qualified for this purpose by the experts in this case. In short, the risk exposed by the Florida tragedy is a risk that Oklahoma, unlike Florida, has specifically addressed in its protocol.
In sum, Hamilton has not overcome the strong presumption applicable here against interference with the State's recognized interest in timely carrying out the final judgment rendered in his criminal prosecution, nor has he shown a substantial likelihood of prevailing on the merits of his constitutional challenge to the lethal-injection procedure to be followed in his execution. Accordingly, the district court did not abuse its discretion in denying injunctive relief, and we find no basis for staying Hamilton's execution.
Hamilton's request for oral argument is GRANTED, the district court's order denying Hamilton's motion for a preliminary injunction is AFFIRMED, and Hamilton's motion for stay of execution is DENIED. The motion to file certain portions of the record under seal is GRANTED. Hamilton's motion for leave to proceed in forma pauperis is GRANTED.
-7-

Case 5:0U6-ncivt-e0d1S19ta3t-eFs CoDuorctuomf eAnptp5e5als foFrilethde0T1/e2n9t/h20C0i7rcuiPt age 9 of 9
OFFICE OF THE CLERK

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80257

Elisabeth A. Shumaker Clerk of Court

(303)844-3157

Douglas E. Cressler Chief Deputy Clerk

January 26, 2007

Mr. Robert D. Dennis Clerk United States District Court for the W. District of Oklahoma
200 NW Fourth Street Room 1210 United States Courthouse Oklahoma City, OK 73102

Re:

06-6381, Hamilton v. Jones, et al.

Dist/Ag docket: 06-CV-1193-F,

Dear Mr. Dennis:
Enclosed are a certified coPY of the judgment and a copy of the opinion filed in this case wh1ch are issued as the mandate of this court. See Fed. R. App. P. 41(a). Please file it in records of your court or agency.

Please contact this office if you have questions.

Sincerely,

0: Elisabeth A. Shumaker

CleJ/z.rk~ Court

Appeals

!,

/)

.zteKLIL-l#1~~f...u~

By:

Deputy Clerk

c1k:va

cc: Robert Nigh Jr. Gregory Thomas Metcalfe
Richard N. Mann Jennifer J. Dickson

 
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87BC, CLOSED, _BG
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:06-cv-01193-F

Hamilton v. Jones et al Assigned to: Honorable Stephen P. Friot Case in other court: 06-06381 Cause: 42:1983 Prisoner Civil Rights Plaintiff Corey Duane Hamilton
V. Defendant Justin Jones Director Oklahoma Department of Corrections
Defendant

Date Filed: 10/27/2006 Date Terminated: 01/10/2007 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Robert Nigh, Jr Brewster & DeAngelis 2617 E 21st St Tulsa, OK 74114 918-742-2021 Fax: 918-742-2197 Email: RNigh@brewsterlaw.com ATTORNEY TO BE NOTICED
represented by Gregory T Metcalfe Attorney General's Ofc-LINCOLN-OKC 4545 N Lincoln Blvd Suite 260 Oklahoma City, OK 73105-3498 405-521-4274 Fax: 405-528-1867 Email: greg_metcalfe@oag.state.ok.us ATTORNEY TO BE NOTICED
Richard N Mann Attorney General's Ofc-LINCOLN-OKC 4545 N Lincoln Blvd Suite 260 Oklahoma City, OK 73105-3498 405-521-4274 Fax: 405-528-1867 Email: richard_mann@oag.state.ok.us ATTORNEY TO BE NOTICED

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Warden Marty Sirmons
Defendant W Mark Luttrull Oklahoma Board of Corrections
Defendant Robert L Rainey Oklahoma Board of Corrections
Defendant Earnest D Ware Oklahoma Board of Corrections
Defendant David C Henneke Oklahoma Board of Correctins
Defendant Ted Logan Oklahoma Board of Corrections
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represented by Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
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Defendant Beverly Young Oklahoma Board of Corrections
Defendant Ernest Godlove Oklahoma Board of Corrections
Defendant John Doe Unknown Executioners

Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/27/2006
10/27/2006 10/27/2006 10/27/2006 10/27/2006 10/27/2006

#

Docket Text

1 COMPLAINT against Ted Logan, Beverly Young, Ernest Godlove, John Doe, Justin Jones, Marty Sirmons, W Mark Luttrull, Robert L Rainey, Earnest D Ware and David C Henneke, filed by Corey Duane Hamilton. (Attachments: # 1 Exhibit 1-Grievance Response# 2 Exhibit 2-Procedures# 3 Civil Cover Sheet)(nm, ) (Entered: 10/27/2006)
2 MOTION for Leave to Proceed in forma pauperis by Corey Duane Hamilton. (nm, ) (Entered: 10/27/2006)
3 ENTRY of Appearance by Robert Nigh, Jr on behalf of Corey Duane Hamilton (Nigh, Robert) (Entered: 10/27/2006)
4 MOTION to Consolidate Cases by Corey Duane Hamilton. (Nigh, Robert) (Entered: 10/27/2006)
5 MOTION for Order by Corey Duane Hamilton. (Nigh, Robert) (Entered: 10/27/2006)
6 ENTER ORDER REASSIGNING CASE. Case reassigned to Judge Stephen P. Friot for all further proceedings. Judge Ralph G. Thompson no longer assigned to

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10/27/2006
11/06/2006 11/06/2006 11/07/2006
11/07/2006 11/07/2006
11/08/2006 11/08/2006 11/08/2006 11/08/2006

case. Signed by MBailey at the direction of Judge Ralph G. Thompson on 10/27/2006. (mb, ) (Entered: 10/27/2006)
Docket Annotation: At docket entry no. 5, counsel for plaintiff has filed what has been docketed as a "Motion for Order." However, the attached pdf file is plaintiff's proposed order relating to docket entry no. 4. Proposed orders are not to be filed with the court. They are to be submitted via email in conformance with this court's ECF Policies & Procedures Manual. Docket entry no. 5 is STRICKEN. Counsel for plaintiff is directed to submit his proposed order in conformance with the ECF Policies & Procedures Manual. (llg) (Entered: 10/27/2006)
7 PRAECIPE for 9 by Corey Duane Hamilton. (Nigh, Robert) (Entered: 11/06/2006)
8 SUPPLEMENTAL MOTION for Leave to Appeal in forma pauperis by Corey Duane Hamilton. (Nigh, Robert) (Entered: 11/06/2006)
Docket Annotation: At docket entry no. 8, plaintiff has filed a "Supplement to Application to Proceed In Forma Pauperis." However, the document has been incorrectedly docketed as a "Supplemental Motion for Leave to Appeal In Forma Pauperis." The court hereby deems docket entry no. 8 to be a "Supplement" to the Motion for Leave Proceed In Forma Pauperis filed at docket entry no. 2, and terms docket entry no. 8 as a motion. (llg) (Entered: 11/07/2006)
9 SUPPLEMENTAL MOTION for Leave to Proceed in forma pauperis by Corey Duane Hamilton. (Nigh, Robert) (Entered: 11/07/2006)
Docket Annotation: At docket entry no. 9, plaintiff has filed a "Second Supplement to Application to Proceed In Forma Pauperis." However, the document has been incorrectedly docketed as a "Supplemental Motion for Leave to Proceed In Forma Pauperis." The court hereby deems docket entry no. 9 to be a "Supplement" to the Motion for Leave Proceed In Forma Pauperis filed at docket entry no. 2, and terms docket entry no. 9 as a motion. (llg) (Entered: 11/07/2006)
10 ORDER granting 2 Motion for Leave to Proceed in forma pauperis, AS MORE FULLY SET OUT. Signed by Judge Stephen P. Friot on 11/8/06. (llg) Modified on 11/8/2006 (llg). (Entered: 11/08/2006)
11 AMENDED ORDER granting 2 MOTION for Leave to Proceed in forma pauperis filed by Corey Duane Hamilton, AS MORE FULLY SET OUT. Signed by Judge Stephen P. Friot on 11/8/06. (llg) (Entered: 11/08/2006)
Summons Issued as to Ted Logan, Beverly Young, Ernest Godlove, Justin Jones, Marty Sirmons, W Mark Luttrull, Robert L Rainey, Earnest D Ware, David C Henneke. Summons returned to Robert Nigh, Jr. via mail. (kw, ) (Entered: 11/08/2006)
12 ENTER ORDER striking 4 plf's Motion for Consolidation of Cases, without prejudice to re-urging after all dfts which plf intends to serve have been served. Entered at the direction of Judge Stephen P. Friot on 11/8/06. (llg) (Entered: 11/08/2006)

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11/15/2006 11/15/2006 11/15/2006 11/17/2006 11/17/2006 11/17/2006 11/20/2006 11/20/2006 11/20/2006 11/27/2006 11/27/2006 11/29/2006 12/04/2006
12/04/2006
12/05/2006
12/14/2006
12/14/2006

13 SUMMONS Returned Executed by Corey Duane Hamilton. Beverly Young served on 11/13/2006. (Nigh, Robert) (Entered: 11/15/2006)
14 SUMMONS Returned Executed by Corey Duane Hamilton. Earnest D Ware served on 11/13/2006. (Nigh, Robert) (Entered: 11/15/2006)
15 SUMMONS Returned Executed by Corey Duane Hamilton. Justin Jones served on 11/13/2006. (Nigh, Robert) (Entered: 11/15/2006)
16 SUMMONS Returned Executed by Corey Duane Hamilton. Ernest Godlove served on 11/15/2006. (Nigh, Robert) (Entered: 11/17/2006)
17 SUMMONS Returned Executed by Corey Duane Hamilton. W Mark Luttrull served on 11/15/2006. (Nigh, Robert) (Entered: 11/17/2006)
18 SUMMONS Returned Executed by Corey Duane Hamilton. Marty Sirmons served on 11/14/2006. (Nigh, Robert) (Entered: 11/17/2006)
19 SUMMONS Returned Executed by Corey Duane Hamilton. David C Henneke served on 11/15/2006. (Nigh, Robert) (Entered: 11/20/2006)
20 PRAECIPE for 1 by Corey Duane Hamilton. (Nigh, Robert) (Entered: 11/20/2006)
ALIAS Summons Issued as to Robert L Rainey. (lb) (Entered: 11/20/2006)
21 Receipt for Money Received from Brewster & De Angelis PLLC in the amount of $350.00, Receipt #119375. (lb) (Entered: 11/27/2006)
22 SUMMONS Returned Executed by Corey Duane Hamilton. Robert L Rainey served on 11/22/2006. (Nigh, Robert) (Entered: 11/27/2006)
23 SUMMONS Returned Executed by Corey Duane Hamilton. Ted Logan served on 11/27/2006. (Nigh, Robert) (Entered: 11/29/2006)
24 ENTRY of Appearance by Richard N Mann on behalf of Ted Logan, Beverly Young, Ernest Godlove, Justin Jones, Marty Sirmons, W Mark Luttrull, Robert L Rainey, Earnest D Ware, David C Henneke (Mann, Richard) (Entered: 12/04/2006)
25 ANSWER to Complaint with Jury Demand by Ted Logan, Beverly Young, Ernest Godlove, Justin Jones, Marty Sirmons, W Mark Luttrull, Robert L Rainey, Earnest D Ware, David C Henneke.(Mann, Richard) (Entered: 12/04/2006)
26 ENTER ORDER. Status Report due by 1/2/2007. Scheduling Conference set for 1/4/2007 10:45 AM in Chambers before Honorable Stephen P. Friot. Entered at the direction of Judge Stephen P. Friot on 12/5/06. (llg) (Entered: 12/05/2006)
27 MOTION to Expedite Discovery and Production of Documents by Corey Duane Hamilton. (Attachments: # 1 Exhibit Plaintiff's Request for Production of Documents to Defendants, Justin Jones and Marty Sirmons)(Nigh, Robert) (Entered: 12/14/2006)
28 NOTICE to Take Deposition of Justin Jones and Marty Sirmons by Corey Duane Hamilton. (Nigh, Robert) (Entered: 12/14/2006)

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12/14/2006 12/14/2006 12/15/2006 12/15/2006 12/15/2006 12/18/2006
12/19/2006 12/20/2006

29 MOTION for Preliminary Injunction with Brief in Support by Corey Duane Hamilton. (Nigh, Robert) (Entered: 12/14/2006)
30 ORDER re 27 Plaintiff's MOTION to Expedite Discovery and Production of Documents: Any objection by dfts due by 12/15/2006 03:30 PM. If no objection filed, mtn will be deemed automatically granted. If objection is filed, this matter will be heard 12/18/2006 08:30 AM in Courtroom #305 before Honorable Stephen P. Friot. Signed by Judge Stephen P. Friot on 12/14/06. (llg) (Entered: 12/14/2006)
31 ORDER Setting Hearing on 29 MOTION for Preliminary Injunction with Brief in Support: Motion Hearing set for 12/27/2006 09:30 AM in Courtroom #305 before Honorable Stephen P. Friot. Signed by Judge Stephen P. Friot on 12/15/06. (llg) (Entered: 12/15/2006)
32 SUPPLEMENT re 29 MOTION for Preliminary Injunction with Brief in Support by Corey Duane Hamilton. (Attachments: # 1 Exhibit Tulsa World Article 12/15/06 re: Diaz execution# 2 Exhibit USA Today 12/14/06 re: Diaz execution# 3 Exhibit Declaration of David Lubarsky, M.D.# 4 Exhibit Lancet Medical Journal April 2005 re: lethal injection executions)(Nigh, Robert) (Entered: 12/15/2006)
33 RESPONSE to Motion re 27 MOTION to Expedite Discovery and Production of Documents filed by Beverly Young, Ernest Godlove, Justin Jones, Marty Sirmons, W Mark Luttrull, Robert L Rainey, Earnest D Ware, David C Henneke. (Mann, Richard) (Entered: 12/15/2006)
34 Minute Order. Proceedings held before Judge Stephen P. Friot. Motion Hearing held on 12/18/2006. 27 MOTION to Expedite Discovery and Production of Documents filed by Corey Duane Hamilton is GRANTED, as set forth. Plf's mtn for examination & photographing of execution chamber is GRANTED. Counsel for plf shall be allowed to examine & photograph the execution chamber by 12/22/06. Production of docs & photographing of execution chamber shall take place pursuant to a protective order, which shall be reduced to writing & shall prohibit the use of the docs for any purpose other than the merits of this case. Production of docs shall take place by 12/22/06. If it is not possible to produce all docs by 12/22/06, the remaining discovery matters will be addressed at an on-the-record conf w/ct at 4:00 PM on 12/22/06. Hrg re 29 Plaintiff's MOTION for Preliminary Injunction is reset for 12/28/2006 09:30 AM in Courtroom #305 before Honorable Stephen P. Friot. (Court Reporter Tracy Washbourne.) (llg) (Entered: 12/18/2006)
35 ENTRY of Appearance by Gregory T Metcalfe on behalf of Ted Logan, Beverly Young, Ernest Godlove, Justin Jones, Marty Sirmons, W Mark Luttrull, Robert L Rainey, Earnest D Ware, David C Henneke (Metcalfe, Gregory) (Entered: 12/19/2006)
36 Minute Entry for proceedings held before Judge Stephen P. Friot: Telephone Conference re discovery question held on 12/20/2006. Rob Nigh appears by phone on behalf of plf; Greg Metcalfe appears by phone on behalf of dfts. Re proposed protective order, counsel for plf requests that he be allowed to show certain discovery to plf, namely the field memorandum describing the protocol for execution and photos of the execution chamber. Ct hears arguments of counsel.

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12/21/2006 12/22/2006 12/27/2006 12/27/2006 12/27/2006
12/27/2006 12/28/2006
12/28/2006 12/29/2006 12/29/2006

Pursuant to Rule 26(b)(2), ct DENIES the request of plf's counsel. The protective order will provide that such materials will not be shared with or shown to plf. Ct advises counsel that, if it is necessary to have a discovery conf on 12/22/06, said discovery conf can be moved to a time earlier than 4:00 PM. (llg) (Entered: 12/20/2006)
37 JOINT MOTION for Protective Order by Ted Logan, Beverly Young, Ernest Godlove, Justin Jones, Marty Sirmons, W Mark Luttrull, Robert L Rainey, Earnest D Ware, David C Henneke. (Metcalfe, Gregory) (Entered: 12/21/2006)
38 PROTECTIVE ORDER. Signed by Judge Stephen P. Friot on 12/22/06. (llg) (Entered: 12/22/2006)
39 SUPPLEMENT re 29 MOTION for Preliminary Injunction with Brief in Support (Second) by Corey Duane Hamilton. (Attachments: # 1 Exhibit Affidavit by Neal Dupree# 2 Exhibit Florida Execution by Lethal Injection Procedures# 3 Exhibit Associated Press Article dated 12/15/06# 4 Exhibit Florida Executive Order 06-260# 5 Exhibit Morales v. Tilton case)(Nigh, Robert) (Entered: 12/27/2006)
40 ENTER ORDER striking 1/4/07 status/scheduling conference, striking 1/2/07 deadline for filing of joint status report. Entered at the direction of Judge Stephen P. Friot on 12/27/06. (llg) (Entered: 12/27/2006)
41 RESPONSE in Opposition re 29 MOTION for Preliminary Injunction with Brief in Support filed by Ted Logan, Beverly Young, Ernest Godlove, Justin Jones, Marty Sirmons, W Mark Luttrull, Robert L Rainey, Earnest D Ware, David C Henneke. (Attachments: # 1 Exhibit 1 Boltz Case Law# 2 Exhibit 2 Patton Case Law# 3 Exhibit 3 Patton Transcript Prelim. Injunction# 4 Exhibit 4 Hamilton Transcript# 5 Exhibit 5 Request to Staff April 10, 2006# 6 Exhibit 6 Grievance Report May 12, 2006# 7 Exhibit 7 Morton Letter# 8 Exhibit 8 OSP 040301-01)(Metcalfe, Gregory) (Entered: 12/27/2006)
42 MOTION to Strike or, Alternatively Limit Evidence to be Offered by Plaintiff by Ted Logan, Beverly Young, Ernest Godlove, Justin Jones, Marty Sirmons, W Mark Luttrull, Robert L Rainey, Earnest D Ware, David C Henneke. (Mann, Richard) (Entered: 12/27/2006)
43 Minute Entry for proceedings held before Judge Stephen P. Friot: Preliminary Injunction Hearing held on 12/28/2006. 42 Dfts' MOTION to Strike or, Alternatively Limit Evidence to be Offered by Plaintiff is DENIED. Ct hears evidence & arguments of counsel. Plf's Exs. 1-61 admitted. Dfts' Exs. 3-5 admitted. 29 Plf's MOTION for Preliminary Injunction is DENIED. Ct orders exhibits withdrawn, to be retained by counsel. (Court Reporter Tracy Washbourne.) (llg) (Entered: 12/28/2006)
44 ORDER DENYING 29 MOTION for Preliminary Injunction filed by Corey Duane Hamilton. Signed by Judge Stephen P. Friot on 12/28/06. (llg) (Entered: 12/28/2006)
45 NOTICE OF APPEAL as to 44 Order by Corey Duane Hamilton. (Nigh, Robert) (Entered: 12/29/2006)
46 MOTION for Order Application for Payment for Transcript by United States by Corey Duane Hamilton. (Nigh, Robert) (Entered: 12/29/2006)

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12/29/2006 12/29/2006 12/29/2006 01/02/2007 01/03/2007 01/08/2007 01/08/2007 01/10/2007
01/22/2007 01/29/2007

47 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 45 Notice of Appeal (dl, ) (Entered: 12/29/2006)
48 TRANSCRIPT Order Form by Corey Duane Hamilton re 45 Notice of Appeal that transcripts are necessary. See order form for dates and proceedings. Estimated completion date January 1, 2007. (dl, ) (Entered: 12/29/2006)
49 ORDER granting 46 Plaintiff's Application for Payment for Transcript by United States. Signed by Judge Stephen P. Friot on 12/29/06. (llg) (Entered: 12/29/2006)
50 DESIGNATION of Record on Appeal by Corey Duane Hamilton re 45 Notice of Appeal (Attachments: # 1 Attachment Civil Docket Sheet)(Nigh, Robert) (Entered: 01/02/2007)
TRANSCRIPT of Proceedings held on December 28, 2006 before Judge Friot. Court Reporter: Tracy Washbourne. re 45 Notice of Appeal filed by Corey Duane Hamilton Transcript of: Hearing (dl, ) (Entered: 01/03/2007)
51 USCA Case Number 06-6381 for 45 Notice of Appeal filed by Corey Duane Hamilton. (dl, ) (Entered: 01/08/2007)
52 PETITION FOR WRIT OF CERTIORARI was DENIED by Order of the Supreme Court on January 8, 2007 (dl, ) (Entered: 01/09/2007)
53 ADMINISTRATIVE CLOSING ORDER: This action is administratively terminated without prejudice to the rights of the parties to reopen for entry of any stipulation or order. If not reopened within 30 days to obtain final determination, action is deemed dismissed with prejudice. Signed by Judge Stephen P. Friot on 1/10/07. (llg) (Entered: 01/10/2007)
54 CJA 24: Authorization to Pay T Washbourne Voucher # 070119000043. Signed by Judge Stephen P. Friot on 1/9/07. (dm) (Entered: 01/22/2007)
55 MANDATE From USCA - The judgment of the district court is AFFIRMED 45 Notice of Appeal filed by Corey Duane Hamilton (dl, ) (Entered: 01/29/2007)

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