Case 1:06-cv-01859-RLY-WTL Document 86 Filed 05/01/2007 Page 1 of 7
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

NORMAN TIMBERLAKE,
Plaintiff,
MICHAEL ALLEN LAMBERT, DAVID LEON WOODS,
Intervenor Plaintiffs, vs.
ED BUSS, Superintendent, Indiana State Prison,
Defendant.

) ) ) ) ) ) ) No. 1:06-cv-1859-RLY-WTL ) ) ) ) ) ) )

Entry Discussing Motion for Summary Judgment as to Defendant’s Defense of Failure to Exhaust Administrative Remedies
Plaintiff David Leon Woods is on death row at the Indiana State Prison in Michigan City. He joined this action as an intervenor plaintiff on April 10, 2007. He alleges in this civil rights action under 42 U.S.C. § 1983 that the combination of drugs to be used by the Superintendent, in the absence of trained personnel and with inadequate monitoring of Woods’ condition once the procedure is underway, creates a serious risk that the drugs will not be properly administered and that errors in these steps will likely cause Woods to suffer excruciating pain in violation of his rights under the Eighth Amendment to the United States Constitution. The defendant in this action is the Superintendent of the Indiana State Prison.

Case 1:06-cv-01859-RLY-WTL Document 86 Filed 05/01/2007 Page 2 of 7
The defendant has filed a motion for summary judgment on the ground, in
part, that Woods failed to exhaust his available administrative remedies, as required by 42 U.S.C. § 1997e(a).1
“Summary judgment is appropriate where the ‘pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.’" Westra v. Credit Control of Pinellas, 409
F.3d 825, 827 (7th Cir. 2005)(quoting Rule 56(c) of the Federal Rules of Civil
Procedure). A "material fact" is one that "might affect the outcome of the suit."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine only
if a reasonable jury could find for the non-moving party. Id.
The Superintendent argues that Woods failed to comply with the exhaustion
of administrative remedies requirement of the Prison Litigation Reform Act (“PLRA”).
The PLRA provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
1The court is obligated to address the failure to exhaust argument before reaching the merits of the claim. Perez v. Wis. Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999)("The statute [requiring administrative exhaustion] can function properly only if the judge resolves disputes about its application before turning to any other issue in the suit."). It does so through this Entry. The remaining argument in the Superintendent’s motion for summary judgment is that Woods’ claim is barred by the applicable 2-year statute of limitations. That portion of the motion for summary judgment remains under advisement.
2

Case 1:06-cv-01859-RLY-WTL Document 86 Filed 05/01/2007 Page 3 of 7
Construed in a manner reasonably most favorable to Woods as the nonmoving party, the evidence here shows that: (1) at all relevant times during Woods’ confinement, the State Prison has had a grievance procedure for inmates; (2) he was aware of the grievance process and has used it on many occasions for a variety of subjects; (3) he will be executed, as required by state law, through lethal injection; (4) the execution will be governed by certain written protocols; (5) the execution protocols are deemed “confidential” and would not have been released or disclosed to Woods, although the Superintendent would discuss the execution process with Woods if Woods sought to have such a discussion; (6) if Woods filed a grievance regarding the execution protocol prior to the filing of this suit or his joinder as an intervenor plaintiff, the person responsible for handling that grievance would have deviated from the grievance procedure because of the serious subject matter of the grievance; and (7) Woods did not file a grievance to the execution protocol prior to the filing of this suit or his joinder as an intervenor plaintiff.
The exhaustion requirement is intended to give jail and prison authorities an opportunity to address issues before they become federal lawsuits. See Porter v. Nussle, 534 U.S. at 524-25. The undisputed facts show that Woods did not file a grievance regarding the execution protocol prior to joining in this lawsuit. “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo,
3

Case 1:06-cv-01859-RLY-WTL Document 86 Filed 05/01/2007 Page 4 of 7
126 S. Ct. 2378, 2385 (2006) (footnote omitted); see also Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004) (“Failure to [follow state rules about the time and content of grievances] means failure to use (and thus to exhaust) available remedies.”).
The question here is whether the defendant has shown that the grievance procedure was “available” to Woods. The exhaustion requirement serves legitimate purposes, but it is not intended to give authorities the opportunity to create insurmountable obstacles to lawsuits that may be essential to protect constitutional and other legal rights. The Supreme Court in Woodford indicated that grievance systems would still need to provide a “meaningful opportunity for prisoners to raise meritorious grievances.” 126 S. Ct. at 2392; see also id. at 2403-04 (Stevens, J., dissenting) (noting problems such a standard poses). The Court in Woodford also noted that it had no occasion in that case to decide how best to address procedural requirements created “for the purpose of tripping up all but the most skillful prisoners.” Id. at 2392. An administrative remedy may become “unavailable,” in terms of § 1997e(a), if prison officials prevent a prisoner from complying with its requirements. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (holding that prisoner complied with exhaustion requirement by submitting grievance that was later lost).
The Seventh Circuit’s decision in Conyers v. Abitz, 416 F.3d 580 (7th Cir. 2005), is instructive here. The plaintiff in Conyers was a Muslim who was not permitted to participate in the Muslim fast of Ramadan. He sued for denial of his
4

Case 1:06-cv-01859-RLY-WTL Document 86 Filed 05/01/2007 Page 5 of 7
right to exercise his religion. Prison officials denied his request to participate because he had not signed up in time to request participation. The Seventh Circuit reversed summary judgment for defendants on the free exercise of religion claim. The evidence showed that prison officials had planned for Ramadan by posting a bulletin telling Muslim prisoners they would need to sign up for special meals no later than a specified date before Ramadan began. Id. at 582. The plaintiff in fact missed the deadline for signing up, but the evidence also showed that he did not know about the posted deadline because he was in disciplinary segregation and could not see it. Id. at 582-83. Based on these facts, the Seventh Circuit saw no basis for enforcing the unknown deadline against the plaintiff. Id. at 585-86.
This approach in Conyers is consistent with Dole and other Seventh Circuit decisions under the PLRA recognizing that jail and prison officials can act so as to make an administrative remedy “unavailable.” E.g., Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (officials’ failure to respond to grievances may render remedy unavailable: “we refuse to interpret the PLRA ‘so narrowly as to . . . permit [prison officials] to exploit the exhaustion requirement through indefinite delay in responding to grievances’”); Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (grievance procedure was unavailable where prison officials refused prisoner’s request for required grievance forms).
The PLRA’s exhaustion requirement is an affirmative defense as to which defendants bear the burden of proof. Dole, 438 F.3d at 809. Prison and jail officials may not take unfair advantage of the exhaustion requirement. The evidence in this
5

Case 1:06-cv-01859-RLY-WTL Document 86 Filed 05/01/2007 Page 6 of 7
case does not show that the defense has been satisfied because there is no evidence that Woods was aware, or even that he should have been aware, of the execution protocols.
Accordingly, the defendant has not met his burden of showing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. The defendant’s motion for summary judgment (Docket # 74) is therefore denied insofar as it rests on the argument that Woods failed to comply with the exhaustion of administrative remedies requirement of 42 U.S.C. § 1997e(a) prior to joining in this lawsuit.
IT IS SO ORDERED.

Date: May 1, 2007
Distribution:
Alan M. Freedman MIDWEST CENTER FOR JUSTICE LTD fbpc@aol.com
Carol Rose Heise MIDWEST CENTER FOR JUSTICE LTD fbpc@aol.com
Betsy M. Isenberg INDIANA STATE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov
Laurence E. Komp lekomp@swbell.net

_______________________________
RICHARD L. YOUNG, JUDGE United States District Court Southern District of Indiana

6

Case 1:06-cv-01859-RLY-WTL Document 86 Filed 05/01/2007 Page 7 of 7 Thomas D. Quigley INDIANA STATE ATTORNEY GENERAL thomas.quigley@atg.in.gov William Van Der Pol Jr. bvander3@insightbb.com Linda M. Wagoner lmwagoner@mchsi.com Richard A. Waples WAPLES & HANGER richwaples@aol.com Brent Westerfeld bwesterfeld@wkelaw.com Lorinda Meier Youngcourt EVANS & YOUNGCOURT lmyoungcourt@hughes.net
7

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE,

)

)

Plaintiff,

)

)

)

v.

)

)

J. DAVID DONAHUE, Commissioner )

Indiana Department of Correction,

)

)

ED BUSS, Superintendent

)

Indiana State Prison

)

Michigan City, Indiana,

)

)

and

)

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

1: 06-cv-1859-RLY -WTL
NO. _________________
EXECUTION IMMINENT
EXECUTION SCHEDULED FOR JANUARY 27, 2006 at 12:01 AM

COMPLAINT
I. Nature of Action 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of the right of plaintiff to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks equitable and injunctive relief.

1

II. Plaintiff 2. Norman Timberlake is a United States citizen and a resident of the State ofIndiana. He is currently a death-sentenced inmate under the supervision of the Indiana Department of Correction, DOC #873051. He is held at the Indiana State Prison.
III. Defendants 3. Defendant, J. David Donahue, is the Commissioner of the Indiana Department of Correction. Defendant Ed Buss is the Superintendent of the Indiana State Prison where death row imnates are housed. Defendants, Unknown Executioners, are employed or contracted by the Indiana State Prison to make preparations for, and carry out, the scheduled execution of Plaintiff. They include, but are not limited to correctional officers, nursing assistants, and "executioners". Plaintiff does not yet know their identities and it is Plaintiff's understanding that Defendants will not reveal the identities of these persons.
IV. Jurisdiction and Venue 4. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights violations), 2201 (declaratory relief), 2202 (further relief). This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and under 42
2

U.S.C. § 1983. 5. Venue in this Court is proper under 28 U.S.C. § 1391.
v.
Facts 6. Plaintiff, Nonnan Timberlake is scheduled to be put to death by lethal injection at 12:01
a.m. on January 19, 2006. See Exhibit "A" attached. Defendants are responsible for carrying out this execution. 7. Under Indiana law, death sentences shall be carried out by "intravenous injection of a lethal substance or substances... in a quantity sufficient to cause the death." Ind. Code §35-38-6-1(a). The statute prescribes no specific drugs, dosages, drug combinations, or the manner of intravenous line access to be used in the execution process; nor does the statute proscribe any certification, training, or licensure required ofthose who participate in the execution. All details of the execution are left to the Indiana Department of Correction to implement through "rules under Ind.Code § 4-22-2." Ind. Code §35-38-61(d). 8. Plaintiff reasonably believes the Department of Correction will execute him by poisoning him with a lethal combination of three chemical substances: Sodium Pentothal (Thiopental), a short-acting barbiturate; Pavulon (Pancuronium Bromide) curare-derived agent which paralyzes all skeletal or voluntary muscles, but which has no effect whatsoever on awareness, cognition or sensation; and Potassium Chloride, an extraordinarily painful chemical which activates the nerve fibers lining the inmate's veins and which can interfere with the rhythmic contractions of the heart and cause cardiac
3

arrest. See attached Exhibit "B" - LaPorte County Coroner Letter Re: Kevin Hough Execution on May 2,2003. 9. Defendants will follow procedures established in Department of Correction Directive ISP 02-04 (March 18,2003) in executing Plaintiff on January 19, 2006. See Exhibit "C" attached. Directive 02-04 and the predecessor directive (Indiana Department of Correction Operation Directive 95-7, August 15, 1995) were adopted without medical research or review to determine that a prisoner would not suffer a unnecessary and wanton pain. Medically qualified persons were not involved in its adoption. The procedures were patterned after those followed in other states including, but not limited to, Illinois, Texas, Washington, Oklahoma, and Louisiana. 10. Directive 02-04 does not specifY the lethal chemicals to be used nor does it specifY the quantity or concentration of any chemical used in the execution process. Directive 02-04 does not address the individual prisoner's medical condition and history. Other prescribed drugs, such as valium, may interfere with the ability of sodium pentothal to act properly as an anesthetic. In addition, "[sodium pentothal] should be titrated against patient requirements as governed by age, sex, and body weight." "Thiopental Sodium: Clinical Pharmacology", RxList Drug Database (Nov. 26, 2005) http://www.rxlist.com/cgi/-generic3/thiopental_ids.ht1l1.:. Persons who are anxious and hyperadrenergic and/or have a chronic history of substance abuse may require a higher dosage of sodium pentothal than the average premedicated surgical patient. Leonidas G. Koniaris et aI, "Inadequate Anesthesia in Lethal Injection for Execution", www.thelancet.com. voL 365 (Apri116, 2005) 1412. See Exhibit "D" "Lancet Article"
4

11. Directive 02-04 contains no standardized time for administration of each chemical and there are no guidelines for determining when each chemical is to be injected. There is no standardized procedure ensuring the anesthetic agent is properly flowing into the prisoner. And, there is no standardized procedures for ensuring that the prisoner is properly sedated before lethal chemicals are injected.
12. Directive 02-04 does not establish minimum qualifications or expertise required of personnel who perform the tasks in the lethal injection process, other than requiring a physician to perform a "cut-down" procedure if an adequate vein cannot be located. There is no procedure specified if adequate flow in the IV cannot be maintained. Directive 02-04 contains no definition of what an "adequate vein" nor does it specify any requirements regarding the flow in the IV.
13. The only personnel selection guideline contained in Directive 02-04 is a requirement that personnel be screened to "assess their emotional stability and their willingness/ability to handle the stress of assisting with the execution."
14. Directive 02-04 contains are no guidelines upon which execution personnel can rely if required to exercise discretion during any part ofthe execution process. Directive 02-04 provides that the injection procedure continues until the prisoner is "presumed dead."
15. Sodium pentothal is a short-acting barbiturate which is ordinarily used to render a surgical patient unconscious for mere minutes, only in the induction phase of anaesthesia, specifically so that the patient may re-awaken and breathe on their own power if any complications arise in inserting a breathing tube pre-surgery. Because of this brief duration, it is highly unlikely that sodium pentothal will provide a sedative effect through
5

the entire execution process. Due to the chemical combination used in the Indiana execution process, there is also a probability that the sedative effect of the sodium pentothal will be neutralized instantly by the second chemical, Pavulon (Pancuronium Bromide), 16. If Plaintiff is not adequately sedated, he will suffer an excruciating pain as a result of the conscious asphyxiation caused by the Pavulon and painful internal bum and cardiac arrest caused by the Potassium Chloride. 17. To the extent that the first chemical, Sodium Pentothal, is neutralized by the second, Pavulon, the paralytic chemical, will serve only to mask the excruciating pain of Plaintiffs. 18. The American Veterinary Medicine Association condemns the use of neuromuscular blocking agents such as Pavulon in the euthanasia of animals and a number of states have made the use of Pavulon on domestic animals illegal. 19. The third chemical involved in the lethal injection process, potassium chloride is intended to cause cardiac arrest. 20. In practice, the administration of Potassium Chloride is inadequate to stop the heart and only arrests the pulmonary system. As a result, the prisoner simply suffocates due to lack of oxygen. 21. In addition, Potassium Chloride ravages the organs by causing an extremely painful burning sensation as it courses through the body. 22. The risk of inflicting severe and unnecessary pain and suffering in the lethal injection process is particularly grave in the execution of Plaintiff.
6

23. On December 13, 2006 the State of Florida, using a lethal injection procedure like that used in Indiana under Directive 02-04, executed Angel Nieves Diaz. Mr. Diaz did not die until 34 minutes after the lethal chemicals were injected into his body. Mr. Diaz appeared to be conscious when Pancuronium Bromide and Potassium Chloride were injected into his body. A second series oflethal chemicals were injected in Mr. Diaz before he was pronounced dead. On December 15, 2006, Florida Governor Jeb Bush ordered a moratorium on further executions and appointed a commission to evaluate Florida's lethal injection protocol. Governor Bush determined that the moratorium and commission to evaluate the protocol were a "constitutional imperative" under the federal and state constitutions given the "significantly lengthier death process for Mr. Diaz." See Exhibit "E" attached Executive Order 06-260.
24. Several prisoners executed under Indiana's lethal injection protocol had thiopental blood levels at their death below 20 mglL: (1) Joseph Trueblood executed June 13,2003 thiopental level was 14 mglL; and, (2)Gregory Johnson executed May 26,2005 thiopental level was 19 mglL. These levels are below those necessary to render them unconscious. Trueblood and Johnson were likely conscious at the time the lethal drugs were administered and caused death. See Exhibit "F" and "G" attached Toxicology Reports on Trueblood and Johnson.
25. Kevin Hough, who was executed under Indiana lethal injection protocol, was administered 25 ml of sodium pentothal, 100 ml of pancuronium bromide, and 70 ml of potassium chloride to bring about his death on May 2, 2003. See Exhibit "A". However, there is no record of the concentration of the drugs used in Hough's execution.
7

26. During the execution of Marvin Bieghler on January 27,2006, The "Command Center" minutes report difficulty maintaining flow in the N's that had been inserted into Mr. Bieghler's veins. Unlike "past executions," flows were not maintained in both of Mr. Bieghler's anns. Despite this failure to follow the procedure on past executions and the lack of any written standards to guide the discretion ofpersonnel when this contingency arises, Mr. Bieghler's execution proceeded. The minutes report that Mr. Bieghler was in "a state of shock" at the time lethal chemicals were injected. The minutes include medical opinions of unknown origin about Mr. Bieghler's physical condition and the effect Bieghler's ingestion of Valium on the lethal injection process. Lethal chemicals were injected into Mr. Bieghler without any detennination being made whether he was adequately sedated. The minutes report that the Command Center was "unclear what the [I.v. team] were exactly doing" during the execution. See Exhibit "H" attached Command Center Minutes of Marvin Bieghler Execution.
27. Timberlake has a history of substance abuse, including intravenous drug usage. He had hepatitis, suffers from anxiety attacks, and is taking prescribed medications, including Valium and Pamalar. For years while in prison, Timberlake was prescribed Sinequan (Doxepin Hydrochloride) and other prescription drugs to induce sleep and treat anxiety. Timberlake weighs approximately 150. The concentration of Sodium Pentothal to produce a continued state where Timberlake is unconscious and insensate, will not be the same as other prisoners executed in the past. Adjustments need to be made to take these and other factors into consideration. These calculations can only be appropriately perfonned by a person educated and trained in the field of clinical anesthesiology.
8

28. As the Indiana protocol for execution does not include the assistance of a person trained in the field of clinical anesthesiology, an unconscious and insensate state in Timberlake at the time ofhis execution cannot be guaranteed. To have Timberlake, conscious and feeling asphyxia, a severe burning sensation, massive muscle cramping, and finally cardiac arrest is cruel and unusual punishment. VI. Claim
29. Plaintiff incorporates paragraphs 1-28 by reference. 30. J. David Donahue, Ed Buss and Unknown Executioners are acting under color ofIndiana
law in administering to Plaintiff chemicals that will cause unnecessary pain in the execution of a sentence of death, thereby depriving Plaintiff his rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, in violation of 42 U.S.C. § 1983. 31. Directive 02-04, which specifies Indiana's lethal injection protocol, violates Plaintiffs rights under the cruel and unusual punishment clause of the Eighth Amendment because the protocol creates the unreasonable and unacceptable risk of unnecessary physical and psychological pain, it does not comport with norms and standards of society, and it offends the dignity of the person and society. 32. The Indiana Department of Correction's execution through lethal injection utilizes three dangerous chemicals that are not specified in Directive 02-04. The protocol does not ensure that personnel using these chemicals have the proper and necessary training, experience, or expertise to administer these drugs. The protocol does not specify the
9

concentration of the drugs used, the timing of their administration, or any other accepted standard for their proper administration. 33. J. David Donahue, Ed Buss, and Unknown Executioners are aware that they conduct lethal injection executions in violation ofthe delegation of authority conferred upon them by the Indiana General Assembly by failing to adopt any standards and guidelines for the administration of the chemicals used in the execution process. Likewise, Defendants are aware that the failure to continuously administer a drug that will anesthetize the condemned prison while other lethal chemicals are being administered poses an excessive risk that the inmate will be conscious or regain consciousness during the administration of pavulon and potassium chloride. 34. J. David Donahue, Ed Buss and Unknown Executioners are aware that their execution procedures and training of Unknown Executioners are inadequate in establishing an IV line capable of delivering the quantity of the lethal chemicals in a manner that will not cause unnecessary physical and psychological pain. The lack of procedures and training creates a substantial risk Plaintiff will remain conscious during the subsequent administration ofPavulon and Potassium Chloride resulting in a death by suffocation and cardiac arrest that will cause a cruel and unusual death in violation of the Eighth Amendment. 35. J. David Donahue, Ed Buss and Unknown Executioners are aware, that the American Veterinary Medical Association has banned the use of Pavulon in the euthanasia of animals and that the continued use ofPavulon creates a substantial risk that the Plaintiffs death by lethal injection will violate constitutional principles with respect to evolving
10

standards of decency. 36. J. David Donahue, Ed Buss and Unknown Executioners are acting with deliberate
indifference to the Plaintiff's serious medical needs and their failures contained in paragraphs 30 thru 35 represent a mutually enforcing effect that produces the deprivation of Plaintiff's right to be free of unnecessarily cruel and unusual punishment. 37. The use ofthese three chemicals as well as the State's refusal to provide reliable infonnation regarding a) its protocol, b) the training ofthe execution team, and c) guidelines for guiding the discretion of execution personnel when problems arise during the execution procedure greatly increase the risk that Plaintiff will suffer an unnecessarily painful execution.
VII. Prayer for Relief 38. Plaintiff requests that this Court grant a temporary restraining order and a preliminary injunction barring defendants from executing Plaintiff in the manner they currently intend. 39. Plaintiff requests that this Court grant reasonable attorneys' fees pursuant to 42 U.S.c. § 1983 and the laws of the United States, as well as for costs of suit and any further relief that this Court deems just and proper.
Respectfully submitted,
!§.N~WE;;ERFELDp ----,.y-~
LORINDA MEIER YOUNGCOUR Attorneys for PlaintitITimberlake
11

Brent Westerfeld Attorney at Law 6202 North College Avenue Post Office Box 30379 Indianapolis, Indiana 46230-0379 (317) 257-5200 bwesterfeld@wkelaw.com

Lorinda Meier Youngcourt Attorney at Law PO Box 206 Huron, IN 47437-0206 (812) 849-9852 Imyoungcourt@earthlink.net

12

,'.'
, V'idya Kora, MD ' . ,. . Coroner

May 2. 2003

St. Anthony Hospital 301 W.Homer Sf. Michigan City, IN 46360

RE: Kevin Lee Hough . DOB: 08-17-1959' DOC#: ·872039

Dr. Roberts. On May ~nd, Kevin Lee Hough was executed by lethal injection at the Indiana
State Prison in Michigan City. The names and amounts ofdrugs that were administnited
,at approximately 12: 15 am are as follows:

..

Sodium Pentothal Pancuronium Bromide

25ml 100ml

, PotaSsium Chloride

70ml

.The body was pronounced dead at 12:25 am by Bob Shearer Sr. The body was removed by OttIHaverstock Funeral ofMichigan City. The body will be picked up by Coleman Willi~s Funeral also ofMichigan City. Ifthere are any questions please . ,contact at (.2,19)60.8.-9537 or (219)325-1593,'
Sincerely,
.•• ~.~
, Eric E.' Wood
ChiefDeputy C{)fOner Michigan City

,.: .

-

.. "

.

' .. '".

;' ,.

. ~ ....:::

. - " ;'; ".-" ..

CONFIDENTIAL

DEPARTMENT 'OF CORRECTION
OPERATION DIRECfIVE
INDIANA STATE PRISON
'~ : '
Revised March 18, 2003

ISP 02-04 - EXECUTION OF DEATH SENTENCE
This directive supersedes ISP 95-7

A. PURPOSE:

The purpose of this procedure is to establish appropriate guidelines to enable the Indiana State Prison to comply with state statutes governing the administration of the Death Penalty.

B.

LEGAL BASIS:

1. IC 35-38-6-1 EXECUTION OF DEATH SENTENCE: SPECIFIED TIME AND DATE: EXECUTIONER:
a. Section 1:
1) The punishment of death shall be inflicted by intravenous injection of a lethal substance or substances into the convicted person;
2) in a quantity sufficient to cause the death of the convicted person; and, 3) Until the convicted person is dead.
2. IC 35-38-6-5 PLACE OF EXECUTION OF DEATH SENTENCE:
a. Section 5:
The execution ~ust take place inside the walls of the State Prison, in a room
designed for that purpose. The Department of Correction shall provide the necessary room and appliances to carry out the exet;ution as prOVided in this chapter.
3. IC 35-38-6-6 PERSONS PERMITIED TO BE PRESENT AT THE EXECUTION OF DEAl
SENTENCE:
a. Section 6:
Only the following persons may be present at the execution:
1) The Warden/Superintendent and any of his assistants who are necessary assist him in the execution;
2) .... Up to two (2) physicians; 3) The Spiritual Advisor of the convicted person; 4) The Prison Chaplain; and, 5) The convicted person may invite up to, but no more than, ten (10)
relatives or friends to attend. The offender shall submit his list of witness names and their relationships

EXHIBIT C

CONFlIJENnAL
ISP 02-04 J.lEXECUTlON OF DEATH SENTENCE'" Revised March 18, 2003

PAGE 2 OF 8

(FamilYI Friendsl Spiritual Advisor) to the Warden/Superintendent for approval at least twenty (20) days prior to the ex.ecution date.

C. NEWS MEDIA:

1. Central Office Executive Staff shall designate a Central Office staff person to assist the State Prison inthe coordination of media communications. The designated Central Office staff person shall be present at the State Prison to assist with the media during the period preceding the execution. Additionally, the Warden/Superintendent shall designate a staff person to assist with coordinating media activities.

2. Authorized and properly identified representatives of the news media shall be permitted

, .-

access to an appropriately equipped designated area within the Administration Building.

Media personnel must remain in the designated area of the Administration Building until

the ex.ecution has been completed. The Warden/Superintendent or designee shall

assign a staff person to remain with the media personnel at all times while they are in

the facility.

3. Media personnel shall not be permitted to witness the execution or to be in the execution area. The only exception to this rule is if the offender requests, in writing, that a member or members of the media be present. The name of the individual(s) must then be included on the list of ten (10) persons who are invited by the offender to witness the execution.

4. Under no circumstances will cameras or recorders not under the control of the Prison be permitted in the execution area.

D. COMMUNlCATION SYSTEMS:

CONFIDENnAI
ISP 02-04 "'EXECUTION OF DEATH SENTENCE" Revised March 16,2003

PAGE 3 OF 8

E. SELECTION OF EXECUTION TEAM AND SUPPORT PERSONNEL:

1. Prior to an execution date, the

tor

2 ! shall appoint a

Screening Committee to assist with the execution process. This committee shall consist

7~t'o of, at a minimum,

:a

r, and a?! . . ,

• • • screen personnel who are to assist with the execution process.

&

2: An appropriate number of Department of Correction staff members, as we! I as an
appropriate number of alternates, shall be selected to assist with the execution.

3. The Screening Committee shall interview appropriate personnel and assess their emotional stability and their willingness/ability to handle the stress of assisting with the execution.

4. Following the individual screening process, the Screening Committee shall provide a lis

of candidates to the

The

shall approv(

the personnel who will assist with the execution.

5. An

nd the

shall select, subjec

to the approval of the

personnel who will perform support

roles in the execution process; including, but not limited to: Security, Communications,

and other appropriate support activities.

6. During the preparation for an execution, should a staff person desire to be relieved of

these responsibilities, or should observations of a staff person's behavior dictate that
he/she may be unsuitable for the task, he/she will be relieved of thes~ duties. In either

case, the

. or

the Crlticallncident Stress Management Tearn

I contact the ~ for to ~rrange a d~n

with the staff person(s).

7.

Being unable to utilize a Prison Health Services physician, the • . 1

tt . : !

or . . . . .halliocate and select a physician to be present at the Institution at the tim

of the execution. This physician's duties shall be to pronounce death after the executi<

has occurred and to perform a Cut-Down Procedure should the I.V. technicians be

unable to find a vein adequate to in.sert the Angiocath.

F. PRELIMINARY PROCEDURES:

1.

2. The facility shall be constantly monitored during the days immediately before the scheduled date of execution. Activities of the facility may be adjusted in order to maintain a proper leve! of security.
3: VisiLors of the condemned will visiL in conjunction with regular visiting hours, 8:00 a

CONfiDENTIAL
ISP 02"()4 uEXECUTlON OF DEATH SENTENCE" Revised March 18, 2003

PAGE40F8

through 2:30 p.m. Extended visiting hours (visitation) may be requested and approved

only by the

or - . . legal counsel shall be subject to the

same hours listed above.

. ,

Approved spiritual advisors may visit longer if extra time is requested and approved in

advance by the

or I 7:. All visits will conclude by 10:00

p.m.

4. Prior to the scheduled date of the execution, the

or

16

shall arrange for the execution room to be equipped, and for the necessary supplies to

be ordered.

5.

6.
7.
8. If the condemned offender wishes to receive a final' meal, he will be permitted to ordel his choice oUood (within reason, based on availability and legality>. forty-eight (48)
hours prior to execution. This meal will be eaten twenty-four (24) to thirty-six (36) hOl
before the execution. The condemned offender islo have nothing heavy to eat past 6:00 p.m. on the night of the execution. 9. If requested, an approved spiritual advisor or prison chaplain may be present with the offender on the day preceding the execution to provide pastoral care and sacramental functions. The name of the spiritual advisor must be submitted to the Administration approval a minimumof twenty (20) hours prior to the execution. G. EXECUTION P.ROCEDURES: 1. The execution of an offender shall generally occur between 12:00, midnight and no later than anilour before sunrise on a date fixed by the sentencing court. The execut must not occur until, at least, one-hundred (100) days after the conviction. 2.

CONFlOENffAL
ISP 02-04 oIIEXECUTION OF DEATH SENTENCE" Revised March 18, 2003
)

PAGE 5 OF 8

3. The

t and a

ortheir designee(s), shall

inspect the execution chamber and equipment approximately thirty (30) minutes prior to

the execution. The

t and/or d ' ; , shall remain in the

execution area following this inspection,

. .;
: ;

4. An appropriate number of Department of Correction staff, previously selected, along

with the

and the

(o~ shall be

present to assist with the execution,

5, The

or '

t shall designate staff to monitor the

communications systems put in place for the execution,

6.

7. The

or 41'• • •_ will record Ihe steps taken during the execution

process and log the times:

(The following times are approximate)

a. 10:30 P.M.: Extraction and l.V. Teams arrive at

Land report to the

• • • • • • • • • • •II.V, Team sets up LV, system.

b. 11:20 P.M.: L-l Team in place.

c. 11:35 P.M.: Physician in place.

d. . 12:00 A.M.: proceed.

checks to ensure that the execution is to

e. 12:03 A.M;: Extraction Team notified by'radio (E -1 from·R - 1: «Move In").

1) At the command ofthe

or_, the

Extraction Team will approach the holding cell and ask the condemned

offender to approach the cell door and be handcuffed.

2) After being handcuffed, the

will ask the offender

to step back and place his hands

on the wall in front of

him. (If the condemned offender rl\}fuses to coop·erate, Departmental

Extraction Policy will be used.)

.

3) The

will unlock the cell door to allow the

Extraction Team to enter. The offender will then be escorted from the

cell, placed on the gurney, and secured with metal and leather restraints.

The gurney will then be wheeled into the Execution Chamber. The

~xtraction Team will then return to the holding cell staging area, out of

view of any witnesses.

r.

12:10 A.M.: I.V, Team notified

"Move In").

, the I.v. Technicians will insert an Angiocath into each of the condemned offender's arms, attach the necessary

CONHDENnAI
ISP 02-04 ~EXECUTlON OF DEATH SENTENCE" Revised March 1S, 2003

PAGE60F8

tubing, and start an I.V. consisting of a saline solution.

g. 12:20 A.M.: LV. Team announces! "'LV. process completed". They then proceed to the holding cell area.

h. 12:25 A.M.: The

will then read the Execution

Order/Death Warrant to the condemned offender.

1) After the Execution Order/Death Warrant has been read, the

or_will then ask the condemned

offender if he has any last words, if he does they will be recorded by the

an

and the L-1 Team.

(NOTE: The condemned offender will be given ample opportunity to prepare a

written statement prior to an execution.)

2)

--. '

-

. ..

-

-"""

ecks LV. tubes and notifies th~
nsport the witnesses into the viewing area. •

3) The only staff in the Death Chamber with the condemned offender will h

the

o r _ and the~r

i.

12:31 A.M.: Witnesses in place - Notification of such/

j. 12:32 A.M.:

_ w i l l contact the facility

Command Center for

to proceed.

k. 12:33 A.M.: The _

or ~ will then order the lights

to be~wtng 6Ti"i\dSi'O be opened.

1. 12:35 A.M.: The

l-1 Team by

The l- 1 Tearn then proceeds! advising

after each syringe. Once the -Proceed'" command is given!

ection

procedure will continue until all of the chemicals have been injected into the

. condemned offender, and he is presumed dead; ,
a) Step 1 Completed _ _ _ _ _ _ __

b) Step 2 Completed _ _ _ _ _ _ __

c) Step 3 Completed _ _ _ _ _ _ __

d) Step 4 Completed _ _ _ _ _ _ _~

e) ,Step 5 Completed _ _ _ _ _ _ _~

ID. 12:55 A.M.: "'Process Completed"

u. 12:56 A.M.: Following the completion of the injection process, and a five (5) minute waiting period, the blinds to the witness area will be closed, the lights will be turned up, and the Physician will be notified_

CONFlIJENTIAL
lSP 02-04 "EXECUTION OF DEATH SENTENCE"

PAGE70F8

Revised March 16, 2003

I

o. 1:00 A.M.: If the offender's heart has not stopped, the lights will be dimmed,

the blinds will be reopened, and

or

~all order the injection

to be repeated. After

this procedure is completedt the blinds will again be closed, and
the Physician will again check for signs of life.

The Physician comes out and pronounces death, and then returns

p.

1:01 A.M.:

- to his room. The actual time of death will be when the Physician
pronounces death. The Physician shall then report hisfindings to

q. 1:02 A.M.!

J

r. 1:07 A.M.:

s. 1:12 A.M.:

_nrnc,rc the I.V. Team to disconnect the

t. 1:14 A.M.: Physician departs.

u. 1:15 A.M.: Extraction Team removes restraint eqUipment.

v. 1:20 A.M.: Coroner is escorted to the Execution Chamber to claim the body, along with the I.D~ & Release Officer for fingerprints. The hearse wilt be brought_to transport the body to the mortuary.

w. 1:25 A.M.: Extraction Team leaves. The

and th~ .

_ n s u t e that the area is cleared and secured.

CONflfJENTIAL
ISP 02-04 "'EXECUTION OF DEATH SENTENCE" Revised March 16,2003

PAGE 6 OF 8

I. POST EXECUTION PROCEDURES:
1.
2.
3. The Warden/Superintendent or designee shall return the Execution Warrant to the Clerk
of the Senlencing Court as soon as possible following the execution of the offender.
4.

J.

REVIEW:

The contents of this document will be reviewed and/or revised (if ne~ed) on an annual basis,
in accordance with Policy No. 00-04-101, "THE DEVELOPMENT, APPROVAL AND ,IMPLEMENTATION OF POLICY".

APPROVED: ~~~~~J.....----=--_ _ _ _ _ DATE: 3'as -'03

sUP,

DENT,

INDIANA STATE PRISON

REVIEWED/REVISED:

DATE:,_ _ _ __

..,

"

,

_______________________________ DATE:,___________

____________________________- - - DATE:_________

STATE OF FLORIDA
OFFICE OF THE GOVERNOR EXECUTIVE ORDER NUMBER 06-260
WHEREAS, the laws of Florida provide that, under certain circumstances, murder in the ftrst degree is punishable by death; and
WHEREAS, in 2000, the Florida Legislature determined that death by lethal injection is the prefened method for canying out a sentence of death, leaving to persons under sentence of death the option of choosing to have the death sentence administered by electrocution; and
WHEREAS, in implementing the death penalty, Florida has adopted procedures and protocols for lethal injection intended to ensure that the lethal injection is administered appropriately and in a manner that does not cause unnecessary pain and suffering; and
WHEREAS, courts, including the Florida Supreme Court in the case ofSims v. State, 754 So.2d 657 (Fla. 2000), and subsequent cases citing Sims, have upheld Florida's method oflethal injection as consistent with the Eighth Amendment of the United States Constitution and its prohibition against cruel and unusual punishment; and
WHEREAS, the cases that have upheld Florida's lethal injection protocols have done so ba.<;ed on evidence that the Department of Corrections was adequately implementing and following such protocols; and
WHEREAS, the ftndings in the autopsy report prepared by William F. Hamilton, M.D., Medical Examiner for the 8th Circuit, regarding Angel Diaz, who was executed on December 13, 2006, indicate that the lethal injection protocols may need to be reviewed to detemnne if any
EXHIBIT E

additional protocols should be added or whether any existing protocols should be modified in any way; and
WHEREAS, the significantly lengthier death process for Mr. Diaz compared to that of other imnates who previously have been executed by lethal injection in Florida, including, according to witness accounts, a longer peIiod of time during which Mr. Diaz lay conscious, should be considered; and
WHEREAS, as a matter of humanity, constitutional imperative, and common sense, if the State is going to execute persons convicted of capital crimes, it must do so in a manner that comports to its own protocols and the United States and Florida Constitutions;
NOW, THEREFORE, I, JEB BUSH, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section (1)(a) ofthe Florida Constitution, and all other applicable laws, do hereby promulgate the following Executive Order, to take immediate effect:
Section 1. I hereby create the Governor's Commission on Administration of Lethal Injection (the "Commission").
Section 2. The putpose of the Commission shall be to review the method in which the lethal injection protocols are administered by the Department of Conections and to make findings and recommendations as to how administration of the procedures and protocols can be revised so that Floridians, including those persons who are sentenced to death, can be assured that the State continues to take reasonable and appropriate measures to ensure that its administration of death by lethal injection comports to the United States and Florida Constitutions, as interpreted by cun'ent case law.
Section 3. The Commission shall be composed of 11 members, five of whom shall be appointed by the Governor, tlu'ee ofwhom shall be appointed by the Attorney General, one of
2

whom shall be appointed by the Senate President, one of whom shall be appointed by the Speaker, and one of whom shall be appointed by the Chief Justice of the Florida Supreme Court. To the extent possible, the members of the Conmlission shall reflect a cross-section of the scientific, medical, law enforcement and legal communities. At least one such member of the Commission shall be an attorney with extensive capital collateral experience or a present or former capital collateral regional counselor registry attorney. In order to provide the broadest experience available to the Commission, at least three members shall be persons who are not cunently involved in the criminal justice system in Florida. The ChaiIman shall be appointed by the Governor from anlOng the members of the Commission.
Section 4. Members of the Commission shall serve at the pleasure of the appointing authority and shall serve without compensation, except that they may be reimbursed for travel to Commission meetings at the rates permitted under Section 112.061, Florida Statutes (2006).
Section 5. The Commission shall meet as often as necessary, and in no event fewer than three times, and shall submit its preliminary report of fmdings and recommendations to the Governor no later than February 1, 2007, and its final report of findings and recommendations by March 1,2007. Upon issuance of its final report, the Commission shall be dissolved. Moreover, all meetings of the Commission shall be open to the public as set forth in Article I, Section 24(b) of the Florida Constitution and Chapter 286, Florida Statutes (2006).
Section 6. The Commission's purpose and mission shall be linllted to evaluating Florida's lethal injection procedures and protocols, including enforcement of those procedures and protocols, and shall not extend to re-evaluating the policy decisions of the Legislature in enacting a death penalty or the means chosen by the Legislatw'e for implementing the state's death penalty.
3

Section 7. The Executive Office of the Governor shall provide administrative supp0l1 to the Conmussion.
Section 8. Until the Commission has issued its fmdings and recommendations and the appropriate revisions to the Department ofConections' procedures and protocols have been adopted, or until further executive order, no further death warrants shall be signed.
Section 9. All state agencies under the direction of the Governor are hereby ordered, and all other state agencies are hereby requested, to provide such assistance to the Commission as may be requested by the COmnUssion in furtherance of this Executive Order.
IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of Florida to be affixed, at Tallahassee, the Capitol, this 15tl1 day of December, 2006.

ATTEST:

GOVERNOR

SECRETARY OF STATE

4

 
 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE, Plaintiff,
v. J. DAVID DONAHUE and ED BUSS,
Defendants.

) ) ) ) No. 1:06-cv-1859-RLY-WTL ) ) ) ) )

ANSWER AND STATEMENT OF DEFENSES Defendants Donahue and Buss, by Steve Carter, Attorney General of Indiana, by his deputy, Thomas D. Quigley, Deputy Attorney General, for their answer to the complaint and statement of defenses, state as follows:
ANSWER For their answer to the material allegations of fact recited in the complaint, the defendants state: 1. The defendants ADMIT the material allegations of paragraph 1 of the complaint. 2. The defendants ADMIT the material allegations of paragraph 2 of the complaint. 3. The defendants ADMIT the material allegations of the first two sentences of paragraph 3 of the complaint but are without sufficient information to form a belief as to the truth of the remaining factual allegations of that paragraph and accordingly DENY them. 4. The defendants ADMIT that this Court has jurisdiction over the subject matter of this action and the persons of the defendants. 5. The defendants ADMIT that venue is proper.

6. The defendants DENY the material allegations of paragraph 6 of the complaint. 7. The defendants ADMIT the material allegations of fact in paragraph 7 of the complaint except that they DENY that all details of executions must be reflected in rules adopted according to statute. 8. The defendants are without sufficient information to form a belief as to the truth of the factual allegations of paragraph 8 of the complaint and accordingly DENY them 9. The defendants ADMIT that correctional officials will follow procedures as averred in the first paragraph of paragraph 9 of the complaint, insofar as those procedures deal with the method of execution, but are without sufficient information to form a belief as to the truth of the remaining factual allegations of that paragraph and accordingly DENY them. 10. The defendants ADMIT the material allegations of the first sentence of paragraph 10 of the complaint but are without sufficient information to form a belief as to the truth of the remaining factual allegations of that paragraph and accordingly DENY them. 11. The defendants ADMIT the material allegations of the first clause of the first sentence of paragraph 11 of the complaint but DENY the truth of the second clause of that sentence, and are without sufficient information to form a belief as to the truth of the remaining factual allegations of that paragraph and accordingly DENY them. 12. The defendants ADMIT the truth of the material allegations of the paragraph 12 of the complaint. 13. The defendants DENY the material allegations of paragraph 13 of the complaint. 14. The defendants ADMIT the material allegations of the second sentence of paragraph 14 of the complaint but DENY the factual allegations of the first sentence of that paragraph.
2

15. The defendants are without sufficient information to form a belief as to the truth of the factual allegations of paragraph 15 of the complaint and accordingly DENY them.
16. The defendants are without sufficient information to form a belief as to the truth of the factual allegations of paragraph 16 of the complaint and accordingly DENY them.
17. The defendants are without sufficient information to form a belief as to the truth of the factual allegations of paragraph 17 of the complaint and accordingly DENY them.
18. The defendants are without sufficient information to form a belief as to the truth of the factual allegations of paragraph 18 of the complaint and accordingly DENY them.
19. The defendants ADMIT the truth of the material allegations of the paragraph 19 of the complaint.
20. The defendants are without sufficient information to form a belief as to the truth of the factual allegations of paragraph 20 of the complaint and accordingly DENY them.
21. The defendants DENY the truth of the material allegations of the paragraph 21 of the complaint.
22. The defendants ADMIT the truth of the material allegations of the paragraph 22 of the complaint.
23. The defendants ADMIT the material allegations of paragraph 23 of the complaint insofar as they describe a Florida moratorium, but are without sufficient information to form a belief as to the truth of the remaining factual allegations of that paragraph and accordingly DENY them.
24. The defendants DENY that offenders were conscious as alleged in paragraph 24 of the complaint but are without sufficient information to form a belief as to the truth of the remaining factual allegations of that paragraph and accordingly DENY them.
3

25. The defendants are without sufficient information to form a belief as to the truth of the factual allegations of paragraph 25 of the complaint and accordingly DENY them.
26. The defendants ADMIT that the minutes referred to in paragraph 26 of the complaint state what the plaintiff avers that they state, insofar as the minutes support the plaintiff’s allegations, but DENY the remaining factual allegations of that paragraph.
27. With respect to the material allegations of fact in paragraph 27 of the complaint, the defendants ADMIT that the plaintiff has stated that he had a history of substance abuse, including intravenous drug usage, and has reported anxiety attacks, but they are without sufficient information to form a belief as to the truth of those allegations and accordingly DENY them; the defendants ADMIT that the plaintiff has had hepatitis, is taking prescribed medications including Valium and Pamalar, and that he has been prescribed Sinequan and other prescription drugs to treat his claimed anxiety, but DENY that this was done to induce sleep; they ADMIT that he weighs approximately 150 pounds; they are without sufficient information to form a belief as to the truth of the allegation concerning the concentration of sodium pentathol and accordingly DENY it; and they DENY that it is necessary for a trained clinical anesthesiologist to determine whether the amount of sodium pentathol that will be used administered to the plaintiff will insure that he does not suffer unconstitutionally.
28. The defendants DENY the truth of the material allegations of the paragraph 28 of the complaint.
29. The defendants ADMIT the truth of the material allegations, if any, of the paragraph 29 of the complaint.
30. The defendants ADMIT that they are acting under color of state law, but DENY the truth of the remaining material allegations of the paragraph 30 of the complaint.
4

31. The defendants DENY the truth of the material allegations of the paragraph 31 of the complaint.
32. The defendants DENY the truth of the material allegations of the paragraph 32 of the complaint.
33. The defendants DENY the truth of the material allegations of the paragraph 33 of the complaint.
34. The defendants DENY the truth of the material allegations of the paragraph 34 of the complaint.
35. The defendants DENY the truth of the material allegations of the paragraph 35 of the complaint.
36. The defendants DENY the truth of the material allegations of the paragraph 36 of the complaint.
37. The defendants DENY the truth of the material allegations of the paragraph 37 of the complaint.
38. The defendants DENY all matters not specifically addressed supra. 39. The defendants DENY that the plaintiff is entitled to any of the relief requested or to any other relief from the defendants.
DEFENSES Without waiving any of the defenses set forth supra, or any other defenses available at law and in equity, the defendants, by counsel, assert the following defenses to the allegations of the plaintiff’s complaint: 40. The issues raised in this action are not ripe for adjudication.
5

41. The complaint fails to state a claim upon which the Court can grant relief. 42. The actions of the defendants will not violate any rights, privileges, or immunities secured under the Constitution or laws of the United States. 43. This instant action is dilatory and purely speculative, and the Court should protect the defendants from such an action. 44. The plaintiff’s request for relief is barred by the doctrine of laches. 45. The plaintiff is not entitled to a temporary restraining order or a preliminary injunction because he has not requested permanent equitable relief and there is, therefore, no significant possibility that he will succeed on the merits. 46. The equities are with the defendants, and not with the plaintiff, and the plaintiff is accordingly not entitled to equitable relief. 47. This action is time-barred. 48. The defendants reserve the right to amend their list of defenses. WHEREFORE, Defendants Donahue and Buss pray the Court to enter judgment in their favor and against the plaintiff in this cause.
Respectfully submitted, STEVE CARTER Attorney General of Indiana
By: s/Thomas D. Quigley
Thomas D. Quigley Deputy Attorney General email: thomas.quigley@atg.in.gov
6

CERTIFICATE OF SERVICE

I hereby certify that on January 5, 2007, a copy of the foregoing answer and statement of

defenses was filed electronically. Notice of this filing will be sent to the following persons by

operation of the Court’s electronic filing system. Parties may access this filing through the

Court’s system.

Brent Westerfeld, Esq. bwesterfeld@wkelaw.com

Lorinda Meier Youngcourt lmyoungcourt@earthlink.net

s/ Thomas D. Quigley
Thomas D. Quigley Deputy Attorney General

Office of Attorney General I.G.C.S., 5th Floor 302 West Washington Street Indianapolis, Indiana 46204-2770 Telephone: (317) 232-6326
7

hos: 360368

 
 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE, Plaintiff,
v. ED BUSS,
Defendant.

) ) ) ) No. 1:06-cv-1859-RLY-WTL ) ) ) ) )

DEFENDANT’S RESPONSE TO DISCOVERY Defendant Buss, by Steve Carter, Attorney General of Indiana, by his deputy, Thomas D. Quigley, Deputy Attorney General, although mindful of the Court’s local rule proscribing filing of discovery materials, submits the instant response to the plaintiff’s discovery due to the accelerated discovery schedule and the expected unavailability at this time of the plaintiff’s counsel. The defendant believes that, under the circumstances, the Court and the parties are best served by filing this response with the Court. Except with respect to the information submitted infra, the defendant OBJECTS to the plaintiff’s discovery, a copy of which is attached hereto, for the following reasons: During the telephonic conference conducted at noon on January 3, 2007, the plaintiff was asked to identify the discovery he would require. The plaintiff responded that he desired to know the rules regarding the manner in which the death penalty is carried out. He stated that he wanted to know which drugs will be administered and the basis for the decision. He stated that he wanted to know the qualifications of the persons who would be responsible for inserting the

intravenous tubes used to carry the substances, and to know the standards for determining which blood vessels would be used.
These matters were in keeping with the complaint, in which the plaintiff seems to raise two basic issues. The plaintiff seems to want to determine that the State of Indiana will use adequate quantities of the substances it will inject to insure that he does not suffer unnecessarily; and he wants to establish that those substances enter his bloodstream in a timely manner, which he tacitly contends depends upon a properly qualified person or persons using a blood vessel or vessels adequate to the task. When the Court asked the plaintiff to state his goals orally, however, the plaintiff failed to do so.
The Court then advised the defendant to be prepared to submit documents regarding the substances that would be used and the quantities of those materials. The Court suggested that the parties agree as to maintaining the confidentiality of information submitted by the defendant. At the defendant’s request, the Court ordered the plaintiff to put his discovery request in writing and to submit it within 48 hours. The Court afforded the defendant 48 hours thereafter to respond to the plaintiff’s request.
The plaintiff complied with the Court’s deadline by electronically transmitting a request for production by noon on Friday, January 5, 2007. That request consists of 24 requests for production that, together with qualifications and specifications, consume more than 8 pages of typed materials. A copy of the request is attached to this response.
The requested materials vastly exceed the scope of the discovery as discussed on January 3 and as contemplated by the defendant’s counsel, and they exceed the scope of discovery warranted by the limited issues reflected in the complaint. The 24 requests seek materials that em-
2

ployees of the Department of Correction would reasonably require 60 days, not 2 days, to assemble, compile, assess, review, and transmit.
In a sentence, the requested discovery is unreasonable, overbroad, and grossly unduly burdensome, and it seeks information that is neither relevant to this action nor reasonably calculated to lead to the discovery of admissible evidence. If the plaintiff insists upon discovery of that information, then he has waited too long to file the case at bar. Such a tactic smacks of an attempt at manipulation, and the Court should dismiss this action under the reasoning of Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S. Ct. 2117, 2126 (2004), which was cited with approval in Hill v. McDonough, 126 S. Ct. 2096, 2104 (2006), that “there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such time as to allow consideration of the merits without requiring entry of a stay.”
Despite the objectionable nature of the whole of the plaintiff’s request, the defendant now provides the following discovery:
1. The defendant tenders herewith a copy of Operation Directive ISP 02-04, which has been redacted to delete references to communication methods, identities of individuals involved in the execution process, offender movement, and internal security. These matters are all beyond the scope of the claims in this case. The nature of each redaction is indicated at the place that the redaction occurs. The defendant is willing to make an unredacted copy of this document available to the Court for its inspection in camera, but object to providing any other party with the same materials absent a court order specifically requiring them to do so.
2. The defendant also tenders herewith a copy of Operation Directive ISP 06-26, a draft of a revised death penalty protocol, redacted in the same way as stated supra. This directive was very recently submitted for approval by the administration of the Department of Correction, but
3

has not yet been approved. The defendant tenders this draft under the same terms as stated with
respect to ISP 02-04.
3. The defendant also submits the following information regarding the substances ex-
pected to be used for the lethal injection of the plaintiff: Five grams of sodium pentothal, to be
followed by 50 milligram of saline solution, followed by 100 milligrams of pancuronium bro-
mide, followed by 50 milligrams of saline solution, followed by 100 milligrams of potassium
chloride.
4. The defendant submits the following list of qualifications of the members of the team
responsible for placement of the catheters:
A. Subject has served on the execution team for 10 years and has participated in 11 executions. Subject has a background in Emergency Medical Services and Emergency Medical Technician.
B. Subject has served on the execution team for 5 years and has participated in 9 executions. Subject has been trained as an Emergency Medical Technician and served in the military.
C. Subject has served on the execution team for 10 years and has participated in 14 executions. Subject has been trained as an Emergency Medical Technician and served in the military.
D. Subject has served on the execution team for 9 years and has participated in 5 executions. Subject has been trained as an Emergency Medical Technician, and served in the military.
F. Subject has served on the execution team for 10 years and has participated in 14 executions. Subject has background in the private health care industry.
G. Subject has served on the execution team for 9 years and has participated in 13 executions. Subject has been trained as an Emergency Medical Technician, Red Cross First Responder, has a background in the private health care industry and served in the medical area while in the military.
H. Subject has served on the execution team for 10 years and has participated in 14 executions. Subject has a background in Home Hospice, and as an Emergency Medical Technician in the military.
4

I. Subject has served on the execution team for 10 years and has participated in 14 executions. Subject has been trained in medical services in the military and as an Emergency Medical Technician. 5. The quantities of substances to be used have been determined by surveying the methods and quantities used in other jurisdictions and have been discussed with medical personnel. These quantities are considered to be well above the maximum doses that would ever be required. The defendant is, however, amenable to increasing any or all of them in an effort to resolve this suit. 6. The method of finding a suitable blood vessel and maintaining a flow through that blood vessel are considered to be medical matters that will be addressed through standard medical methods and procedures.
Respectfully submitted, STEVE CARTER Attorney General of Indiana
By: s/Thomas D. Quigley
Thomas D. Quigley Deputy Attorney General email: thomas.quigley@atg.in.gov
5

CERTIFICATE OF SERVICE I hereby certify that on January 8, 2007, a copy of the foregoing response to discovery
was filed electronically. Notice of this filing will be sent to the following persons by operation
of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
Brent Westerfeld, Esq. bwesterfeld@wkelaw.com
I hereby certify that on January 8, 2007, a copy of the foregoing response to discovery was
mailed, by first-class U.S. Mail, postage prepaid and properly addressed to the following:
Lorinda Meier Youngcourt, Esq. EVANS & YOUNGCOURT P.O. Box 206 Huron, IN 47437-0206
s/ Thomas D. Quigley
Thomas D. Quigley Deputy Attorney General

Office of Attorney General I.G.C.S., 5th Floor 302 West Washington Street Indianapolis, Indiana 46204-2770 Telephone: (317) 232-6326
6

hos: 360709

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE, Plaintiff,
v.
ED BUSS, Superintendent Indiana State Prison,
Defendant.

No. 1:06-cv-1859-RLY-WTL
DEATH SENTENCED PETITIONER EXECUTION DATE 1/19/2007 @ 12:01am

APPLICATION FOR PRELIMINARY INJUNCTION Plaintiff, Norman Timberlake, is under a sentence of death. On December 15, 2006, the

Indiana Supreme Court ordered Mr. Timberlake’s execution to take place on January 19, 2007. Mr. Timberlake seeks preliminary injunctive relief to prevent Defendants from executing him by

their proposed means of lethal injection pending the resolution of this action. Mr. Timberlake

alleges that the Indiana Department of Correction’s lethal injection protocol, as described in both Operation Directive ISP 06-261, which is attached hereto as Exhibit 1, and Operation Directive

ISP 02-04, which is attached hereto as Exhibit 2, and Defendant’s Response to Discovery filed

1/8/2007, which is attached hereto as Exhibit 3, constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments because it creates a substantial and

unnecessary risk that Mr. Timberlake will be fully conscious and in agonizing pain for the

duration of the execution process.

1According to Defendant’s Response to Discovery filed 1/8/20207, Exhibit 3, Operation Directive ISP 02-04 is currently in place. Operation Directive ISP 06-26 is “a revised death penalty protocol” which has been “very recently submitted for approval by the administration of the Department of Correction but has not yet been approved.” Exhibit 3, paragraphs 2 & 3.
1

This application for a preliminary injunction is made pursuant to Federal Rule of Civil Procedure 65, and Mr. Timberlake is entitled to the relief he seeks under Eighth Circuit precedent. Mr. Timberlake will sustain irreparable harm if injunctive relief is not granted preventing the Defendant having the (1) execution team members listed in Exhibit 3, paragraph 4 insert catheters; (2) in accordance with either ISP 02-04 or ISP 06-26, (3) using the drugs and quantities listed in Exhibit 3, paragraph 3. Mr. Timberlake is likely to prevail on the merits of the underlying action and the balance of hardships weighs decidedly in his favor. This application is based on the Complaint, the following memorandum of points and authorities and the attached exhibits, including the declaration of Dr. Mark Heath which sets forth the specific deficiencies in the Defendants’ lethal injection protocol. I. INTRODUCTION
Norman Timberlake, a death row inmate, is scheduled to be executed by Indiana State Prison Superintendent, Ed Buss by means of lethal injection. A rapidly growing body of evidence, including medical evidence, eyewitness observation and veterinary studies, persuasively demonstrates that the particular lethal injection protocol chosen by Defendant Buss risks, and has repeatedly resulted in, inmates failing to receive adequate anesthesia and remaining conscious during the administration of lethal drugs. Without adequate anesthesia, the inmate experiences first slow suffocation and then the extraordinarily painful activation of the sensory nerve fibers in the walls of the veins that is caused by potassium chloride. Likewise, when individuals not appropriately trained in anesthesia are responsible for placement of the catheters for injection of the described drugs, unconscionable delays result in the execution preparation. Given the significant danger under the current protocol that Mr. Timberlake will
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be subjected to this excruciating mental and physical pain and torture, he seeks to prevent the Defendant from executing him in this manner.
According to Exhibit 3, paragraph 3, the Defendant will use three drugs in succession to cause Mr. Timberlake’s death: First, Sodium Pentothal, an ultra-short-acting barbiturate that under ideal conditions will cause the inmate to lose consciousness; second, Pancurorium Bromide, a neuromuscular blocking agent that paralyzes the muscles and has no apparent purpose other than to make the execution appear peaceful to witnesses; and finally, Potassium Chloride, which induces cardiac arrest. ISP Directive 06-26 and ISP Directive 02-04 establishes the conditions under which these drugs are administered. It directs that the drugs be administered remotely, in the absence of trained personnel and with no monitoring of the inmate’s condition once the procedure is underway. The combination of using these particular drugs, in the dosages described in Exhibit 3, under these conditions creates a serious risk that the drugs, particularly the critically important Sodium Pentothal, will not be properly administered. Administration errors could result, and demonstrably have resulted, in inmates retaining consciousness and suffering severe pain and torture during their executions.
Thus, Mr. Timberlake’s suit is not premised on the possibility that some unforeseen error or unavoidable accident might cause him to be aware and in excruciating pain during his execution. Nor does he claim that execution by lethal injection is unconstitutional per se, regardless of the manner in which it is accomplished. On the contrary, he alleges that the significant risk of a botched and inhumane execution is an entirely foreseeable consequence of the particular conditions unnecessarily imposed by, and the failings of, ISP Directives 06-26 and/or 02-04. It is surely unconstitutional for the State to choose an execution protocol that
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creates a significant risk of inflicting gratuitous suffering and excruciating pain. Mr. Timberlake therefore requests that the Court enjoin the Defendant from executing him by means of lethal injection as it is currently administered under ISP Directives 06-26 and/or 02-04. II. FACTUAL BACKGROUND
On August 11, 1995, Mr. Timberlake was convicted and sentenced to death in the Marion Superior Court II, Criminal Division, located at City County Building, 200 East Washington Street, Indianapolis, Indiana, 46204.
Mr. Timberlake appealed his conviction and sentence of death to the Indiana Supreme Court who affirmed his conviction and sentence by a published opinion on December 30, 1997. Timberlake v. State, 690 N.E.2d 243 (Ind. 1997). Mr. Timberlake’s petition for rehearing before the Indiana Supreme Court was denied April 30, 1998. A Petition for Writ of Certiorari with the United States Supreme Court was denied January 11, 1999. Timberlake v. Indiana, 525 U.S. 1073 (1999).
On December 7, 1998, Mr. Timberlake filed a petition for post-conviction relief in the trial court, Marion Superior Court II, Criminal Division, Indianapolis, Indiana. The petition was denied on December 27, 1999 after an evidentiary hearing. Mr. Timberlake appealed the denial of his state petition for post-conviction to the Indiana Supreme Court. On August 20, 2001, the Indiana Supreme Court affirmed the denial. Timberlake v. State, 753 N.E.2d 591 (Ind. 2001). The Indiana Supreme Court denied rehearing on December 6, 2001. Mr. Timberlake’s Petition for Writ of Certiorari with the United States Supreme Court was denied October 7, 2002. Timberlake v. Indiana, 537 U.S. 839 (2002).
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Mr. Timberlake filed a petition for writ of habeas corpus under 28 U.S.C. §2254 on November 8, 2002 in the United States District Court, Southern District of Indiana. This petition was denied March 24, 2004. Mr. Timberlake appealed the denial of his petition to the United States Court of Appeals for the Seventh Circuit. The Court of Appeals affirmed the district court’s denial of the petition on June 20, 2005. Timberlake v. Davis, 409 F.3d 819 (7th Cir. 2005). A Petition for Rehearing and Rehearing En Banc of Denial Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2254 was filed in the United States Court of Appeals for the Seventh Circuit. The petition was denied on August 1, 2005. Timberlake v. Davis, 418 F.3d 702 (7th Cir. 2005). Mr. Timberlake filed a Petition for Writ of Certiorari in the United States Supreme Court which was denied May 1, 2006. Timberlake v. Buss, 126 S.Ct. 430 (2006).
On June 28, 2006, Mr. Timberlake filed a petition for leave to file successive petition for post-conviction relief in the Indiana Supreme Court, Indianapolis, Indiana. No evidentiary hearing was conducted. On December 15, 2006, Mr. Timberlake’s petition was denied. The Indiana Supreme Court
On December 27, 2006, Mr. Timberlake filed a Petition for Writ of Habeas Corpus in the United States District Court, Southern District of Indiana to complete litigation of the original petition filed on November 8, 2002. That petition is still pending. III. ARGUMENT
In moving for a preliminary injunction, Mr. Timberlake seeks only to preserve the status quo while he litigates his constitutional claims. Mr. Timberlake will likely success on the merits of this action, and will suffer irreparable harm in the absence of temporary relief. It is also in the public interest to grant temporary relief because doing so will allow the important question of the
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constitutionality of ISP Directive 06-26 or 02-04 to be fully and accurately resolved on the merits and will avoid inhumane, unconstitutional execution. This action was timely brought and the balance of the equities so favors Mr. Timberlake that both justice and controlling precedent require that the Court preserve the status quo until the merits of the matter can be determined.
A. THE LEGAL STANDARD In order to decide whether a preliminary injunction is appropriate, the Court “must exercise its discretion to determine whether the balance of harms weighs in favor of the moving party or whether the unmoving party or public interest will be harmed sufficiently that the injunction should be denied.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). In the context of a capital case, where the movant is under a death sentence and the issuance of a preliminary injunction will have the effect of delaying a scheduled execution, the Court must also take into account any unnecessary delay on the part of the prisoner in bringing his claim. Nelson v. Campbell, 541 U.S 637, 649-650 (2004); Hill v. McDonough, 547 U.S. (2006). The Eighth Circuit Court of Appeals performed this weighing of the equities in Taylor v. Crawford, 445 F.3d 1095, 1097 (8th Cir. 2006). See also, Taylor v. Crawford, No. 06-1397 (8th Cir. February 1, 2006)(en banc)(Order granting stay of execution). Plaintiff Taylor filed an action pursuant to 42 U.S.C. § 1983 challenging Missouri’s lethal injection protocol on substantially the same grounds that Mr. Timberlake has challenged Indiana’s procedure. See, Taylor, 445 F.3d at 1096. While the action was pending the state scheduled Mr. Taylor’s execution. Id. at 1097. The district court granted a preliminary injunction preventing the execution from proceeding before the merits of the action had been determined. Id. A panel of
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the Eighth Circuit initially reversed and ordered that an immediate, truncated hearing be conducted to allow the execution to proceed on schedule, id., but on the subsequent appeal the en banc court granted rehearing and stayed Mr. Taylor’s execution, id. at 1098.
Upon reconsideration the panel affirmatively acknowledged that the plaintiff’s interest in having an evidentiary hearing on the merits of his claims prior to his execution was “equally [as] strong” as the State’s interest in the prompt execution of its judgment. Id. at 1096. The court inquired of the parties how much time they would need to complete the discovery and evidentiary hearing that had previously begun, and ultimately granted the 60 days that plaintiff’s counsel requested. Id. at 1098. This decision, then, stands for the proposition that a plaintiff who timely files a properly-pled 8th and 14th Amendment challenge to a state’s lethal injection procedure under 42 U.S.C. § 1983 is entitled to an evidentiary hearing on the merits of his claims and, if the State schedules his execution in the interim, a preliminary injunction to prevent the State from proceeding with the execution before the hearing can be completed. See also, Cooey v. Taft, 2006 WL 1207982 (S.D.Ohio); Jackson v. Taylor, 2006 WL 1237044 (D.Del.).
B. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS 1. Plaintiff’s Claim is Cognizable Under 42 U.S.C. §1983
The Complaint does not challenge the legality of Mr. Timberlake’s conviction or sentence, nor does it seek to prevent the state from executing him by lethal injection in a lawful manner. Mr. Timberlake’s claim is therefore properly brought under 42 U.S.C. § 1983. Hill v.McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). In accordance with its
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previous opinion in Nelson v. Campbell, 541 U.S. 637 (2004), the Court held that a claim challenging a method of execution as cruel and unusual punishment that “would not necessarily prevent the State from executing him by lethal injection,” is proper under § 1983 and need not be brought in habeas. Hill, 165 L.Ed.2d 44, 45. As is clear from the Complaint, the instant lawsuit is just such an action. Mr. Timberlake has specifically alleged that there are readily available alternative methods of execution by lethal injection that would both comport with state law and pass constitutional muster. They bring this action simply to ensure that they are put to death in a humane manner.
2. Indiana’s Lethal Injection Protocol Violates the Eighth and Fourteenth Amendments Because it Carries a Tremendous Risk of Unnecessary Pain During Executions
The Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the imposition of cruel and unusual punishments. U.S. Const. Amend. VIII. The prohibition includes the “infliction of unnecessary pain in the execution of the death sentence.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1974); see also, Gregg v. Georgia, 428 U.S. 153, 173 (1976)(holding that the Eighth Amendment prohibits the “unnecessary and wanton infliction of pain”).
Because it is impossible to determine with certainty before the fact whether a particular inmate will suffer unnecessary pain during his execution, the question of whether a particular execution procedure will inflict unnecessary pain is fundamentally an inquiry as to whether the inmate is “subject to an unnecessary risk of unconstitutional pain or suffering.” Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004)(emphasis added); Fierro v. Gomez, 77 F. 3d 301, 307 (9 Cir. 1996) (“Campbell also made clear that the method of execution must be considered th
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in terms of the risk of pain.” (emphasis in original)); Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994). “For any individual challenging a death sentence, evidence of botched executions can only be put in terms of probability.” J.D. Mortenson, Earning the Right to be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause, 88 Iowa L. Rev. 1099, 1118-20 (2003).
Of course, any medical or quasi-medical procedure inherently carries a risk that a mistake or accident might cause unforeseen pain. Thus, the Eighth Amendment does not require executioners to eliminate all possible risk of pain or accident from their execution protocols. See, Resweber, 329 U.S. at 464; Campbell, 18 F.3d at 687. A risk of pain becomes unnecessary, however - and unconstitutional - when experience with the execution procedure demonstrates that there are foreseeable problems that will result in the inmate suffering intense pain that alternative procedures do not engender.
The assessment of the risks associated with a particular procedure is not static. Over time, our knowledge of the workings of the human body increases, technology advances, new information comes to light and old information is more thoroughly understood and interpreted. Accordingly, methods of execution are developed, refined and abandoned. Execution by hanging, firing squad, gas chamber and electric chair, once standard, have all become virtually obsolete with the passage of time. If a State opts to utilize capital punishment, the 8th Amendment imposes an obligation upon it to keep up with and respond to new developments and information and to ensure that they are using the most humane, least painful procedure available.
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Evidence is now overwhelming that the particular lethal injection protocol chosen and currently in use by the ADC is far from the most humane available; rather, it engenders serious risks of causing excruciating pain and torture that other available methods simply do not. See, Cooey v. Taft, No. 2:04-cv-1156, 2006 WL 1207982 * 5 (S.D.Ohio April 28)(noting “mounting evidence calling Ohio’s lethal injection protocol, and the same or similar protocols employed by other states, increasingly into question”).
a. The Protocol Is Old And Was Ill-Conceived At The Outset Legislation directing a change in the method of execution from electrocution to lethal injection was passed in Indiana in 1983. As it does to this day, the statute left all decisions regarding the particular chemicals to be injected and the administration procedures to be employed to the discretion of the Department of Correction. See, Ind. Code§ 35-38-6-1 (1983). From discovery provided by the Defendant, it appear that the protocol was designed with no input or advice from medically trained personnel. The Texas protocol, upon which the Indiana procedure was apparently modeled was designed by lay corrections officials with no medical knowledge. Louisiana is another state that looked to Texas when it came time to figure out how to execute someone by lethal injection. When the chief legal counsel of the Louisiana Department of Corrections consulted with the warden of the Texas Department of Corrections responsible for executions about the “medical portion” of the Texas protocol, she was told:
[T]hat the only thing that mattered was that the guy ended up dead and that he wasn’t worried too much about the amount of medicine. He had certainly used the same types of medicine, but that he wasn’t totally concerned about the amounts or what it may or may not do. They ended up dead, and that’s all he was worried about. The rest of our conversation with him tracked that same
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thing. He was not terribly concerned about policy, procedure, or who did what, when, where. Just so the right result happened.’ So Long as They Die: Lethal Injections in the United States, 18 Human Rights Watch 1(G) at 1617 (2006)(Exhibit 5). The Defendant has used the protocol adopted in this ad hoc, unscientific manner for all executions by lethal injection conducted in Indiana, and still uses that same procedure.
b. The Protocol Arbitrarily Selects Painful Drugs And Fails To Ensure Adequate Anesthesia During Their Administration
The Defendant does not provide the authority by which he uses the drugs and drug dosages listed in Exhibit 3, paragraph 3. The first drug, Sodium Pentothal, is an anesthetic, intended to rapidly induce unconsciousness. The second active drug, Pancurorium Bromide, is a neuromuscular blocking agent that causes complete paralysis. Finally, Potassium Chloride is introduced to cause cardiac arrest.
Potassium Chloride is a salt that naturally occurs in trace amounts in the human body. In large quantities, however, such as the 100 milligrams listed in Exhibit 3 at ¶ 3, it not only causes the heart to stop beating but also causes excruciating pain as it travels through the circulatory system. The drug activates the sensory nerve fibers of the insides of the veins as it courses through the body from the injection site to the heart, causing a sensation that has been likened to fire scorching along the vessels. See, Exhibit 4 at ¶12 (Declaration of Dr. Mark Heath).
The neuromuscular blocking agent Pancurorium Bromide stops all movement, including that necessary to breathe. The drug has no effect, however, on consciousness or the ability to perceive pain. If a prisoner is conscious when this drug is administered, he will feel the visceral
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pain and distress of slow suffocation, much like as if he were drowning or being crushed to death. Id. at ¶15.
Having made the choice to administer two drugs that cause excruciating pain and agony, a choice that was not required by either statute or practical considerations, the Defendant can only fulfill its responsibility under the 8th Amendment to avoid gratuitous and unnecessary pain and torture only if it ensures that the prisoner is adequately anesthetized at the time that those drugs are administered. In order to ensure that the prisoner does not feel pain a surgical plane of anesthesia, or that level of anesthesia that prevents conscious perception of noxious stimuli of the magnitude of surgical procedures, must be achieved and maintained throughout the execution procedure. However, the drug that is used induce anesthesia, administered in accordance with the procedures listed in Exhibit 3 ¶ 3, is an exceedingly inferior choice for the task and fails to provide the necessary assurance of adequate anesthesia.
(1) Sodium Pentothal is an Ultra-Short-Acting Barbiturate Unsuitable for use as Sole Anesthetic Agent for Executions, Especially in the Dose the Defendant Plans to Use
Sodium Pentothal is an ultra-short-acting barbiturate that is used for certain specific purposes in surgical anesthesia. Its effect has a rapid onset and then a rapid recovery; the patient becomes unconscious very quickly after the drug is introduced, and the effects begin to wear off very soon thereafter. Sodium Pentothal is therefore ideal for the provision of anesthesia during intubation at the beginning of surgery, for example, because it induces deep anesthesia rapidly but if there are problems with the intubation the patient will regain consciousness and the ability to breathe independently very quickly. See, Exhibit 4 at ¶ 24-25 (Declaration of Dr. Heath).
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The reasons for the drug’s utility in certain surgical contexts, however, are also reasons why Sodium Pentothal is decidedly inappropriate for use as the sole anesthetic agent during a lethal injection procedure. Id. at ¶ 26-27. Although the Indiana protocol calls for a dose of the drug that is large enough to be lethal if properly administered, any problems with the delivery of the full dose engender the serious risk that the inmate will receive an insufficient amount of the drug to induce a deep enough plane of anesthesia, or to maintain that degree of anesthesia throughout the execution process. In short, if the inmate does not receive the full amount of Sodium Pentothal, and there are many reasons why that can and apparently does happen, the anesthetic effect may wear off too quickly and the inmate may be conscious and suffering during the remainder of the procedure.
The Defendant’s protocol unnecessarily enhances these risks by its arbitrary and unnecessary adoption of 5 grams as the does of Sodium Pentothal to be administered. The level of anesthesia, if any, achieved in each individual inmate depends on the amount that is successfully administered, although other factors such as the inmate’s weight and sensitivity/resistance to barbiturates are also important. Many foreseeable situations exist in which human or technical errors could result in the failure to successfully administer the intended dose. If error occurs that results in the prisoner receiving less than the 5 gram dose, the prisoner be inadequately anaesthetized and therefore conscious and suffering. Exhibit 4 at ¶ 27 (Declaration of Dr. Heath).
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Additionally, the Defendant’s protocol fails to even require that additional Sodium Pentothal be available in the execution chamber in the event that problems with delivery of the dose are detected and more of the anesthetic agent is determined to be necessary. Because of its instability, the drug is distributed in powder form and must be placed into solution before it may be injected. Id, at ¶ 27 (a). There is no directive that requires even that extra Sodium Pentothal powder be on hand, much less extra syringes of the drug already mixed into solution, and so in the event that execution personnel were to detect signs of inadequate anesthetic depth or possible consciousness once the execution process was under way, the protocol ensures that there is nothing they could do about it. As noted, the circumstances under which a failure to achieve and maintain adequate anesthesia may occur are many, varied and common.
(2) Obtaining IV Access for Execution Purposes Requires Training and Skill that the Defendant’s Execution Personnel Lack
Establishing peripheral intravenous access to an inmate to facilitate the administration of the lethal drugs called for by Exhibits 1 (ISP 06-24) 2 (ISP 02-04) is a complex and risky medical procedure that should only be performed by properly medically trained and qualified personnel. The process is fraught with the potential for error. Under the best of circumstances, it is vital that the IV set-up be assembled properly and securely. The set-up consists of multiple parts and pieces of tubing, which may leak or otherwise fail to permit the unobstructed flow of chemicals into the inmate’s circulatory system if not correctly attached. See Exhibit 4 at ¶ 27(e) (Declaration of Dr. Heath).
The tourniquet that is applied to facilitate access to the peripheral vein must be removed
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once IV access is achieved; failure to do so will obstruct the flow of the anesthetic agent into the inmate’s body. See, Id. at ¶ 27(k). Placement of the extensive restraining straps that the Defendant uses to tie the inmate down to the gurney may cause the same problem. See Exhibit 7 at ¶ 27(l)(Declaration of Dr. Heath).
It is critical that the catheter be inserted into the vein in a precisely correct fashion in order to ensure that the full dose of the anesthetic drug is delivered into the inmate’s circulatory system. If the catheter is inserted incorrectly, the drug will go into the tissue surrounding the vein rather than into the vein itself. See, Id. at ¶ 27(f). This condition, known as infiltration, is not uncommon. Id. Uncorrected, it will result in a failure of the anesthetic to reach the central nervous system and a failure to render the inmate unconscious. Id. Once properly inserted, the catheter must be adequately secured with tape or by other means, or else it may shift and result in infiltration. Id. at ¶ 27(j).
Even finding a suitable peripheral vein into which the catheter may be placed can be a medically complex and difficult endeavor. See, Exhibit 6 (News Rpt of Marvin Bieghler Execution), Exhibit 7 (News Rpt of Tommy Smith Execution). Due to a variety of conditions, including obesity, prior intravenous drug use, corticosteroid treatment and even just naturally small or deep veins, obtaining peripheral IV access may be difficult or even impossible. Id. at ¶ 36. The very nature of the execution process may exacerbate this problem, because the autonomic manifestations of the anxiety associated with impending death include constriction or narrowing of the veins. Id. at ¶ 41.
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In the event that peripheral IV access proves impossible to obtain, Indiana’s protocol calls for the use of dramatically more medically complex, risky and invasive procedure of a cutdown, which entails making a deep incision into the inmate’s skin in order to access a vein that is not accessible from the surface, or a central line, which requires insertion of the catheter into a large vein such as the subclavian vein in the chest or the femoral vein in the groin. See, Exhibit 8 (Cut-down photos).
Both procedures have been conducted in Indiana by the Defendant and his predecessors. See Exhibits 9 (Post mortem photos of Tommy Smith). Despite the complexity of and risks associated with these types of procedures neither Exhibit 1 or 2 set forth any procedures governing the use of these techniques. The protocol fails to specify how they are to be conducted or to set forth the qualifications required of the personnel who will actually perform them. Given the nature of the procedures it is unacceptable that they be performed by anyone except for medically trained personnel possessed of adequate skill and experience, but the protocol fails to require any particular knowledge or ability at all. Emergency medical training is insufficient for the performance of such medical procedures.
(3) Maintenance of Adequate Anesthesia Throughout the Execution Process Requires Training and Skill that the Defendant’s Execution Team Lacks
Even once peripheral IV access has been established and the catheters are properly inserted, there are still a large number of problems that may arise which can interfere with the proper delivery of anesthesia. It is critical, therefore, that the inmate be closely monitored by medically trained and experienced personnel throughout the execution process in order to detect problems as they occur and ensure that the inmate is maintained on a sufficiently deep plane of
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anesthesia. See, Exhibit 4 at ¶¶ 31-32 (Declaration of Dr. Heath). Even most qualified nurses

and paramedics are not trained in the use of ultra-short-acting barbiturates; these drugs are used

only by anesthesiologists and a very select group of nurse who have obtained significant

experience in intensive care units and as nurse anesthetists. Id. at ¶ 30. Training equivalent to

that of an anesthesiologist or a CRNA is minimally required in order to ensure that an execution

using the drugs and procedure set out humane. Id. However, Indiana’s protocol fails to provide

for any monitoring of the inmate during the execution process, much less monitoring by

individuals competent in the provision of general anesthesia.

Errors and problems are potentially rife beginning at the stage of preparation of the lethal

drugs. Sodium Thiopental is unstable in solution, and is therefore distributed by the

manufacturer in powder form. Before it may be injected intravenously, the powder must be

mixed with liquid, a process that requires knowledge of pharmaceuticals and familiarity with

terminology and abbreviations. Id. at ¶ 27(a).

The Defendant apparently provides no

guidance to execution personnel on the this issue.

Indiana’s protocol sets out that the “injection team prepares two (2) sets of seven (7)

syringes to be used during the execution.” Exhibit 1 (ISP 06-24). There is no indication that the

contents of the syringes be marked on the syringes, which means that if a drug is erroneously

placed in a syringe, the error is likely to go undetected and the drugs will be administered in the

wrong order. Such lack of labeling is far below the appropriate medical standard of care and

would never be permitted in the clinical context. Administration of the drugs in the wrong order

may also result from the fact that each syringe is a separate until that must be attached in series

to the IV set up by hand. The protocol fails to guard against the possibility that the executioner

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might select the incorrect syringe, or to provide for monitoring of the inmate to ensure that such an error is immediately detected if it occurs, or to prescribe the steps to be taken if such a situation is detected.
If the lethal drugs are administered in the wrong order a range of negative consequences may ensue. Several of the syringes are supposed to contain saline solution to be administered between drugs in order to flush the IV lines of all traces of the preceding agent. Of primary importance is the fact that, if mixed with Pancurorium Bromide outside of the body, Sodium Pentothal will precipitate, i.e. solids will form in the solution, impairing or preventing delivery of the full dose of anesthetic agent. Hence, if error in the selection of syringes results in the introduction of Pancurorium Bromide before the line has been flushed with saline solution, inadequate anesthesia may result.
Indiana’s lethal injection protocol requires that the executioners who inject the lethal drugs into the IV set up be located in a room that is apart from the execution chamber where the inmate is placed on the gurney, separated by a window with a hole in it for the IV lines to pass through. Because of the distance between the inmate and the executioners that this procedure necessitates, extended IV tubing is required. The introduction of extra length and components to the iv set-up not only increases the number of sites where leakage may occur, see, Exhibit 4 at ¶ 27(e)(Declaration of Dr. Heath), but also increases the risk that the tubing may coil or kink.
Even when properly placed initially, the tip of an IV catheter may migrate during the course of the execution so that it is outside of the vein at the time of the introduction of the anesthetic agent and infiltration occurs. See, Exhibit 4 at ¶ 27(g)(Declaration of Dr. Heath). Although the catheter appears to be securely and properly placed, too, the process of inserting it
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may weaken or damage the vein wall such that the vein ruptures when the administration of the lethal drugs begins. Id. at ¶ 27(h). This risk is increased by the fact that inexperienced, untrained personnel may exert excessive pressure on the syringe plungers, increasing the velocity of the administration of the drug and consequently the pressure that is placed on the vein walls. Id. Indeed, excessive pressure on the plunger can lead to tearing or rupture of the vein even in the absence of damage caused by the initial insertion of the catheter. Id.. at ¶ 27(I).
Because of each of these potential problems and more, constant, close monitoring of the inmate’s plane of anesthesia throughout the execution process by individuals who are properly trained and skilled in anesthesiology is indispensable. And yet, the Defendants’ protocol fails to provide for any monitoring at all once the execution is underway, much less monitoring by personnel who have the requisite knowledge and experience to detect and rectify any problems that may arise them.
(4) Even if Defendant’s Execution Team Were Qualified to Administer IV Anesthesia, the Use of Pancurorium Bromide and the Physical Arrangement of the Execution Chamber Preclude Effective Monitoring
Not only does Indiana’s lethal injection protocol fail to provide for monitoring of the inmate by persons qualified in assessing anesthetic depth, it calls for a physical arrangement of inmate and executioners that would unnecessarily hinder effective monitoring even if it were attempted. As noted, the protocol requires that the executioners who inject the lethal drugs into the iv set-up be located in a room that is apart from the execution chamber where the inmate is placed on the gurney, separated by a window with a hole in it for the iv lines to pass through. The persons who control the administration of the drugs, then, are the furthest away of any execution chamber personnel and their line of sight to the inmate is impeded. The distance
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entirely precludes the close monitoring of the diagnostic signs of anesthetic depth that are constantly checked during surgical procedures.
c. The Risk of Torture and Pain Created by Indiana’s Execution Protocol Has been Realized in Indiana and Elsewhere
There is now ample evidence that Indiana’s execution procedure has caused some inmates executed by the Defendant and his predecessors to experience unnecessary pain and suffering during their executions. Both execution records and witnesses’ accounts of these executions provide evidence that is indicative of continued consciousness following the purported administration of the sodium pentothal. A dose of Sodium Pentothal of 2mg or more, properly administered, will cause unconsciousness within one minute or less. Exhibit 4 at ¶ 42 (Declaration of Mark Heath). However, in several executions that have been performed in Arkansas, the inmate displayed signs of consciousness for considerably longer that the one minute maximum that is indicative of successful administration of the anesthetic.
C. The Serious Risks Engendered by Indiana’s Lethal Injection Protocol are Unnecessary and Unconstitutional
Exhibit 1 (ISP 06-24) and Exhibit 3 (Discovery Response) creates an unacceptable and unnecessary quantum of Administrative Directive 96-06 both creates an unacceptable and unnecessary quantum of risk that Mr. Timberlake will not be adequately anesthetized and therefore will suffer excruciating pain during his execution, and also fails utterly to account for these obvious contingencies and instruct personnel on how to react to or prevent them. In this respect, the lethal injection protocol is starkly different from the judicial hanging protocol that the Ninth Circuit Court of Appeals upheld in Campbell v. Wood, 18 F.3d 662, 683 (9th Cir. 1994). Analogous to the risk that an inmate will be conscious and in excruciating pain during the
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lethal injection process, the State of Washington's judicial hanging procedure carried the risk that an inmate would die of asphyxiation, which is slow and painful, or decapitation, which mutilates the inmate's body, rather than dying within seconds as intended. See id. at 683.
Unlike the Indiana’s lethal injection protocol, however, Washington's protocol carefully acknowledged the risks that it engendered and provided detailed procedures specifically designed to minimize them. Thus, as the court noted, Washington's protocol reflected medical opinions as to the manner in which different methods of hanging would kill inmates and which modes of causing death were the most humane. Id. In order to avoid death by asphyxiation or decapitation, the protocol included detailed instructions on numerous factors that could affect the manner of death, including the diameter of the rope; the method of tying the knot; treating the rope with wax and boiling it to reduce elasticity; and the length of the drop in relation to body weight and the manner in which that length should be calculated. Id. at 683-85. All of these instructions were the result of careful consideration of the available scientific and medical evidence. In light of the Washington protocol's ample provision for the risks of an inhumane death, the Ninth Circuit concluded that the risk of a botched execution was "slight," and had been "minimized as much as possible." Id.. at 687 & n.17.
In contrast to Washington's protocol, it is impossible to detect in the version of Exhibit 1 (ISP 06-24) any attempt on the Defendant’s part to account for the problems that can and do arise during an execution by lethal injection. This failure is particularly egregious in light of the fact that simply having a qualified person verify, visually and tactically, that the inmate is indeed anesthetized following the administration of the sodium pentothal, would go a long way towards
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mitigating the risk of unnecessary pain. See, Exhibit 4 at ¶ 32 (Declaration of Mark Heath M.D.) Moreover, the necessity for such monitoring may be obviated by the selection of alternative, equally effective anesthetic agents and by the use of one of the drugs capable of causing cardiac arrest that does not cause excruciating pain. Id. at 13. Yet it does not appear that the Defendant has even considered these or any other means of lessening the gratuitous dangers created by its protocol. This egregious failure renders the significant risk of error truly unnecessary and unconstitutional. Cf. Campbell, 18 F.3d at 687 & n.17.
D. MR. TIMBERLAKE WILL SUFFER IRREPARABLE HARM IF A PRELIMINARY INJUNCTION IS NOT GRANTED
If the Defendant is not enjoined from executing him in accordance with Exhibit 1(ISP 0624), Mr. Timberlake will likely suffer irreparable harm. Being forced to endure excruciating pain during the execution process clearly constitutes irreparable harm. See, Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)(holding that continued pain and suffering resulting from deliberate medical indifference is irreparable harm). As is clear from the foregoing, there is ample evidence that Defendants’ proposed method of execution carries a significant and unacceptable risk that Mr. Timberlake will indeed suffer that harm. The threat of harm is both “real and immediate,” and thus the situation is one that is “ripe for injunctive relief.” See, Goff v.Harper, 60 F.3d 518, 521 (8th Cir. 1995). Moreover, Mr. Timberlake will have no retrospective remedy for the constitutional violation, as he will no longer be alive.
E. THE BALANCE OF HARMS STRONGLY FAVORS MR. TIMBERLAKE In contrast, the harm to the State and the Defendant that will result from the entry of a preliminary injunction is slight. The State undoubtedly has a strong interest in the prompt execution of its judgments. The delay resulting from granting the temporary relief sought
22

herein, however, will have little adverse effect upon that interest. See Gomez v. US. Dist. Ct. for Northern Dist. of Ca/., 966 F.2d 460,462 (9th Cir. 1992) (Noonan, J., dissenting from grant of writ of mandate) (“The state will get its man in the end. In contrast, if persons are put to death in a manner that is determined to be cruel, they suffer injury that can never be undone, and the Constitution suffers an injury that can never be repaired.”). The balance of harms tips sharply in favor of entering a preliminary injunction.
F. GRANTING TEMPORARY RELIEF IIS IN THE PUBLIC INTEREST Whether the State is executing its prisoners in a way that subjects them to an excruciatingly painful, torturous death is clearly a matter of vital public interest. The standards of decency and humanity in a society such as ours are gravely offended by such practices, and so it is affirmatively in the public interest to address and resolve the merits of the Mr. Timberlake’s claim in order to identify and put an end to unnecessary procedures that pose a risk of causing gratuitous suffering. Indeed, the citizens of the State of Indiana, through their elected representatives, have expressly acknowledged the importance of conducting executions as humanely as possible by changing the method from electrocution to lethal injection as a result of the belief that the latter reduces unnecessary suffering. There is now compelling evidence that Indiana’s lethal injection protocol creates a significant and unacceptable risk of, and on multiple occasions has actually resulted in, the infliction of unnecessary pain. As noted above, the claim does not become ripe for resolution until an execution is imminent but, if a preliminary injunction is not granted, the execution will necessarily take place before the issues can be adjudicated. In light of the importance of the questions involved, it is clearly in the public interest that temporary relief be granted in the
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instant case to solve this dilemma and permit a definitive determination of the merits to be made. “[T]he public interest only is served by enforcing constitutional rights and by the prompt and accurate resolution of disputes concerning those constitutional rights. By comparison, the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate’s constitutional rights.” Cooey v. Taft, 2006 WL 1207982 at *6 (S.D.Ohio).
G. CONCLUSION The purpose of this lawsuit is not to prevent the State from executing Mr. Timberlake. It is to prevent it from executing him in a manner that subjects him to excruciating pain and torture that is gratuitous and unnecessary and in violation of the Constitution. To avoid the risk that his execution will be performed in such a manner, Mr. Timberlake is entitled to relief under 42 U.S.C. § 1983. In order to allow him an opportunity to prove that entitlement, and to obtain an adjudication of the merits of his claim Mr. Timberlake respectfully requests that the Court issue a preliminary injunction presenting the Defendant from executing him by means of lethal injection under the protocol currently in effect in the State of Indiana.
Respectfully submitted, /s/LM Youngcourt Brent Westerfeld Lorinda Meier Youngcourt Counsel for Norman Timberlake
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CERTIFICATE OF SERVICE

I certify that the foregoing document was filed electronically and served upon the Thomas D. Quigley, Stephen R. Creason, and Betsy M Isenberg through the Court’s CM/ECF system and by separate electronic mail transmission to thomas.quigley@atg.in.gov, betsy.isenberg@atg.in.gov, and stephen.creason@atg.in.gov on January 9, 2007.

/s/Brent Westerfeld Brent Westerfeld, Counsel for Timberlake

Brent Westerfeld 6202 N College Avenue Indianapolis, IN 46220 (317) 257-5200 office (317) 257-5200 fax bwestefeld@wkelaw.com

Lorinda Meier Youngcourt P.O. Box 206 Huron, IN 47437 (812) 849-9852 office (812) 849-1294 fax lmyoungcourt@hughes.net

25

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE Plaintiff,
v. ED BUSS,
Defendants.

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CAUSE NO. 1:06-cv-1859-RLY-WTL

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RESPONSE IN OPPOSITION TO PLAINTIFF’S APPLICATION FOR PRELIMINARY INJUNCTION Defendant Ed Buss, by Steve Carter, Attorney General of Indiana, by his deputy, Thomas D. Quigley, Deputy Attorney General, submits his Response in Opposition to Plaintiff’s Application for Preliminary Injunction. For the reasons set forth below, the defendant respectfully requests that this Court deny the plaintiff’s Application for Preliminary Injunction. The primary reason to deny that application is that it was not properly filed, as the defendant points out in his motion to strike that application, which is being filed separately from the instant response. But even if the application were properly before this Court, it should be denied.

INTRODUCTION Plaintiff has moved for a preliminary injunction to stay his execution currently scheduled for January 19, 2007. He claims the current lethal injection protocol in place within Indiana is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Plaintiff asserts there is a “substantial and unnecessary risk that [he] will be fully conscious and in agonizing pain for the duration of the execution process.” (Application for Preliminary Injunction, p.

1.) The Indiana lethal injection protocol allegedly will result in an inadequate amount of anesthesia wherein the plaintiff will be conscious during the administration of the additional drugs.
STANDARD FOR PRELIMINARY INJUNCTION “In order to obtain a preliminary injunction, the moving party must show that: (1) they are reasonably likely to succeed on the merits; (2) no adequate remedy at law exists; (3) they will suffer irreparable harm which, absent injunctive relief, outweighs the irreparable harm the respondent will suffer if the injunction is granted; and (4) the injunction will not harm the public interest.” Joelner v. Village of Washington Park, Illinois, 378 F.3d 613, 619 (7th Cir. 2004). If the moving party can meet this threshold burden, then the inquiry becomes a “sliding scale” analysis where the factors are weighed against one another. Id. See also AM General Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 804 (7th Cir. 2002). When a stay of execution is sought, the Court must be “sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill v. McDonough, 126 S. Ct. 2096, 2104 (2006). See Nelson v. Campbell, 541 U.S. 637, 649650 (2004). Moreover, a court must apply “a strong equitable presumption” against the entry of a stay of execution where the claim could have been brought to allow a review of the merits without the entry of a stay. Id.
ARGUMENT 1. The plaintiff has delayed unnecessarily.
In its ruling in the companion habeas case, Timberlake v. Buss, No. 1:06-cv-01841 (S.D. Ind. Jan. 9, 2007), this Court set out the procedural history of the case at bar and the habeas action. As noted there, the plaintiff was convicted and sentenced to death in 1995. The date of his execution was set on December 15, 2006. But the plaintiff waited to file the case at bar until Fri-
2

day, December 29, 2006, the day before a three-day weekend and 14 business days before the date of his scheduled execution (January 15, 2007, is a holiday).
The plaintiff has known since 1995 that his execution would be by lethal injection1. He bases his arguments on issues raised at least as early as February 2004 by Amnesty International, see http://web.amnesty.org/library/print/ENGAMR510242004. His application for a preliminary stay is all but identical to an application filed June 12, 2006, in Nooner v. Norris, No. 5:06-cv110-SWW-JFF (E.D. Ark.), and even appears to include a copy of a doctor’s declaration, which addresses the distinctly different aspects of Arkansas’ death penalty protocol and appears to have been filed in that case2.
In sum, the plaintiff could have brought this challenge more than ten years ago. The crux of his arguments were developed three years ago and could easily have been raised in the case at bar that long ago. Finally, the precise claims he makes here have existed, in virtually the same language he uses now, since June 12, 2006. But the plaintiff delayed until only 14 business days remained before his execution.
It is significant, in this regard, that the plaintiff professes, in his application at 3, that he does not attack lethal injection as a method of execution that is unconstitutional per se. Rather, his argument is that the particular mixture of drugs employed in Indiana (or, perhaps, the different mixture that is used in Arkansas) is unconstitutional and that there are no safeguards in place to avoid error. These arguments bring into focus the nature and result of the plaintiff’s election to delay bringing this suit.
1 The State of Indiana changed its method of execution from electrocution to lethal injection by legislation adopted in 1995, see P.L. 294-1995, although the plaintiff incorrectly states in his application that this occurred in 1983. 2 The defendant notes the materials at the top of the plaintiff’s exhibit, which bear the Arkansas court’s cause number and the date June 12, 2006.
3

If Indiana’s protocol is to be changed, it will take time. If the mixture or timing of the drugs is to be changed, it will take time to investigate alternatives. But the plaintiff has not allowed the Court or the defendant reasonable time to investigate these possibilities, possibilities that flow naturally and necessarily from the issues as he frames them. His unnecessary delay puts the Court to a choice between two alternatives: either to deny the motion for a preliminary injunction, or to delay the execution in order to generate time to consider alternative methods of execution that could, with reasonable notice, have been proposed, evaluated, and adopted in a considered manner without frustrating the State’s interest in seeing its laws carried out.
As the Supreme Court recognized in Hill, there is “a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” 126 S. Ct. at 2104 (quoting I)(internal quotation marks deleted). The Hill Court reminded the lower courts that they “can and should protect States from dilatory or speculative suits.” Id. The case at bar is patently both dilatory and speculative. The application should be denied. See Alley v. Little, No. 06-5650, 2006 WL 1313365 (6th Cir.)(reversing stay of execution by lethal injection because it was filed 36 days before execution date), cert. denied, 126 S. Ct. 2975 (2006).
2. The plaintiff is not reasonably likely to succeed on the merits. In any event, the plaintiff has not shown that he is reasonably likely to succeed on the
merits. His application is flatly deficient. The plaintiff’s primary evidentiary weight-bearer is what purports to be a declaration of a
doctor that apparently was filed in an Arkansas federal court seven months ago. It is doubtful
4

that the plaintiff possesses the original of that document, and he has not authenticated it in any other way. It is, therefore, inadequate to prove anything.
Equally telling is the fact that that document, even if properly before the Court, does not deal with Indiana’s death penalty procedures. The amounts of drugs it contemplates are half of the amounts used in Indiana, except that Arkansas uses only 40% of the sodium thiopental used in Indiana, and it is that drug upon which the doctor focuses. The doctor’s declaration does not consider the qualifications of the people who will be responsible for implementing the death penalty against the plaintiff or their many years’ experience3. As a result, even if it were properly authenticated, it would be probative of nothing relevant.
The purported declaration provides no showing that the plaintiff might succeed. The plaintiff has relied upon an assertion that the American Veterinary Medical Association bans the use of percuronium bromide in the euthanasia of animals. That statement is false. The AVMA’s report, which can be found at http://www.avma.org/issues/animal_welfare/euthanasia.pdf, begins with a one-page warning against making the very use of the report that the plaintiff undertakes in the case at bar. Remarkably, the veterinarian association expressly includes sodium thiopental and potassium chloride among its recommended methods (along with microwaving, “penetrating captive bolt,” and other methods). The AVMA’s literature does not support the plaintiff. The plaintiff also refers in his application to several exhibits. He has not filed those exhibits, however, and they do not support him either. That leaves only the plaintiff’s hypothesis that something might go wrong with the procedure. There is no evidence of the existence here of any of the possible sources of error he cata3 These data are in the plaintiff’s Exhibit 3 at 4-5.
5

logs, so the most that can be said about the plaintiff’s argument is that it points out a number of things that could go wrong. A possibility of error, however, is no reason to stay an execution, as is shown by the quote from Hill, supra. The supreme courts of Tennessee and Connecticut, in fact, have recently rejected the very speculative arguments advanced here. See, e.g., Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 308 (Tenn. 2005)(approving execution by injection of 5 g. sodium thiopental, 100 mg. percuronium bromide, and 200 mg. potassium chloride)
The plaintiff has not shown any likelihood of success on the merits.
CONCLUSION The plaintiff has not overcome the “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 he merits without requiring entry of a stay,” see Nelson, 541 U.S. at 650. Given his claim that his challenge is not to execution by lethal injection as a concept but, rather, to the method by which the sentence will be carried out in his case, he has waited so long that the defendants and the Court cannot make an informed decision as to how to shape a remedy that will address his concerns while respecting the strong interest of the State of Indiana in implementing its criminal law. A preliminary injunction, like a stay, is an equitable remedy. As a matter of equitable balancing, the plaintiff has delayed too long to be entitled to that remedy in the case at bar. This Court should deny the plaintiff’s application for a preliminary injunction and, for that matter, his prayer for a stay.
6

Respectfully submitted,
STEVE CARTER Attorney General of Indiana
By: s/Thomas D. Quigley
Thomas D. Quigley Deputy Attorney General email: thomas.quigley@atg.in.gov
CERTIFICATE OF SERVICE
I hereby certify that on January 10, 2007, a copy of the foregoing response to discovery
was filed electronically. Notice of this filing will be sent to the following persons by operation
of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
Brent Westerfeld, Esq.
bwesterfeld@wkelaw.com
I hereby certify that on January 10, 2007, a copy of the foregoing response to discovery was
mailed, by email pursuant to agreement, to the following:
Lorinda Meier Youngcourt, Esq. EVANS & YOUNGCOURT lmyoungcourt@earthlink.net
s/ Thomas D. Quigley
Thomas D. Quigley Deputy Attorney General

Office of Attorney General I.G.C.S., 5th Floor 302 West Washington Street Indianapolis, Indiana 46204-2770 Telephone: (317) 232-6326
7

hos: 361252

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE Plaintiff,
v. ED BUSS,
Defendants.

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)

)

CAUSE NO. 1:06-cv-1859-RLY-WTL

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MEMORANDUM IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
The Court is aware of the nature of this action and the status of the record. The defendant
will not lengthen this brief with unnecessary material.

The standards for entry of judgment on the pleadings After the pleadings are closed, a defendant may seek dismissal for failure to state a claim
by a motion for judgment on the pleadings. Fed. R. Civ. P. 12(c), (h). Where no evidence outside the pleadings is submitted a motion for judgment on the pleadings will be reviewed under the standard of a Rule 12(b)(6) motion. Paist v. Town and Country Corp., 744 F. Supp. 179 (N.D. Ill. 1990).

Argument The defendant’s argument is straightforward. The plaintiff, by filing this action 14
working days before his execution, has waited so long to bring this action, and has brought it in such a way, that he has deprived the defendant of a meaningful opportunity to develop a

satisfactory defense. Because of that, the Court cannot properly consider the merits of the action without requiring entry of a stay. That fact is, alone, enough to justify dismissal of the action. See, e.g., Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S. Ct. 2117, 2126 (2004) (“there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such time as to allow consideration of the merits without requiring entry of a stay”); cited with approval in Hill v. McDonough, 126 S. Ct. 2096, 2104 (2006),
The defendant has developed this argument in his Response in Opposition to Plaintiff’s Application for Preliminary Injunction and respectfully refers the Court to that response rather than lengthen the instant memorandum by repeating the arguments set forth there.
The argument presented there is strengthened by other considerations. Among them is the obvious fact that the plaintiff is unable to present his case in the expedited fashion required by the Court’s rulings, which in turn were necessitated by the late filing of the action. Examples are that the plaintiff did not properly file his motion for preliminary injunction within the time limit set by the Court, which then afforded him two more days to do so. The plaintiff was filing supporting exhibits at 5:42 the day following the day they were due, and after the defendants had responded to his motion.
The plaintiff has not “clarified, reduced or streamlined” his claims as the Court invited on January 4, 2007 (document 9), and still does not suggest how the execution procedure might be improved before January 19, 2007, to remedy his concerns. It is now 7:30 p.m. on January 10 and no “document styled along the lines of a case management plan” has been filed, as the Court requested orally on January 3 and ordered in writing on January 4. The plaintiff has tendered no suggestion for such a document to the defendant’s counsel.
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The Court has now set this matter for trial to be conducted in Indianapolis less than 40 hours prior to the scheduled execution, which will occur in Michigan City. The most qualified person available to testify regarding Indiana’s execution procedure, the defendant, has been occupied, and will continue to be occupied, making arrangements and otherwise dealing with the myriad final details accompanying any execution, as well as the many other matters for which the superintendent of a maximum-security prison is more routinely responsible. The timing of the hearing threatens to compromise his ability to carry out his duties at a proper level.
Much more significant is the fact that, given the short time available, it is impossible for the defendant to determine whether it is advisable to seek out one or more disinterested experts to testify at the trial. The defendant cannot reasonably prepare to depose any experts the plaintiff might call to testify and cannot seek evidence to rebut it. Without a balanced, adversarial presentation of evidence, this Court will not be able to take full advantage of the evidencegathering potential of a trial. The Court will not be able to consider the merits properly.
The Court is struggling mightily to cope with the short time frame, but it is evident that the plaintiff is unable to do so. The plaintiff created this circumstance by delaying filing too long. Because of that delay, he is not entitled to the protection of equity.
The State of Indiana, however, maintains its recognized “strong interest in enforcing its criminal judgments without undue interference from the federal courts,” Hill at 2104.
For these reasons, it is right, just, and proper for the Court to dismiss the action now, rather than prolong these proceedings. To do so will alert others facing the death penalty that the Court will entertain their suits only if brought seasonably. To do otherwise, however, will encourage others facing execution to engage in the same dilatory tactic the plaintiff used in the case at bar.
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Respectfully submitted,
STEVE CARTER Attorney General of Indiana
By: s/Thomas D. Quigley
Thomas D. Quigley Deputy Attorney General email: thomas.quigley@atg.in.gov

CERTIFICATE OF SERVICE
I hereby certify that on January 10, 2007, a copy of the foregoing motion for judgment on
the pleadings was filed electronically. Notice of this filing will be sent to the following person
by operation of the Court’s electronic filing system. Parties may access this filing through the
Court’s system.
Brent Westerfeld, Esq. bwesterfeld@wkelaw.com
I hereby certify that on January 10, 2007, a copy of the foregoing for judgment on the pleadings
was mailed, by email pursuant to agreement, to the following:
Lorinda Meier Youngcourt, Esq. EVANS & YOUNGCOURT LMYoungcourt@hughes.net
s/ Thomas D. Quigley
Thomas D. Quigley Deputy Attorney General

Office of Attorney General I.G.C.S., 5th Floor 302 West Washington Street Indianapolis, Indiana 46204-2770 Telephone: (317) 232-6326
4

hos: 361453

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE, Plaintiff,
v. ED BUSS, Superintendent Indiana State Prison Michigan City, Indiana,

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NO. 1:06-cv-1859-RLY-WTL

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PLAINTIFF’S REPLY TO DEFENDANT’S RESPONSE IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Plaintiff, by counsel, Brent W esterfeld and Lorinda Meier Youngcourt, respectfully reply to

Defendant’s Response in Opposition to Plaintiff’s Motion for Preliminary Injunction as follows:

Timeliness

Defendant’s assertion that equitable principles dictate that Tim berlake’s action should be

dismissed is built on the assumption that Timberlake is challenging lethal injection per se as the method

of execution. He is not. Timberlake, consistent with Nelson v. Campbell, 541 U.S. 637 (2004) and Hill

v. McConough, 126 S.Ct. 2096 (2006), is seeking to enjoin the manner Defendant apparently intends

to use in executing his death sentence.

Apparently, the protocol Defendant intends to use was determ ined January 12, 2007, after

Timberlake filed this action. All the inform ation which prompted this case came to light on or after

December 15, 2006. Timberlake cannot be held dilatory for challenging a protocol of which Defendant

is even unaware.

Additionally, Defendant fails to disclose what occurred before Timberlake filed this action.

1

Undersigned counsel contact Defendant’s counsel, Stephen Creason, on December 27 or 28, 2006 to determine whether any changes in Indiana’s execution protocol were in the works given the December 13, 2006 Florida execution of Angel Nieves Diaz. Mr. Creason said he would check and thereafter advised Timberlake’s counsel by telephone that no changes were in the works.
As set forth in the Complaint, Indiana’s protocols are similar to Florida’s. They use the same chemicals and similarly unqualified personnel in the execution process. Yet, Defendant was m aking no changes despite Tim berlake’s approaching execution. Given these facts and the inform ation available about the Diaz execution, Timberlake’s filing of this action cannot be considered dilatory.
Defendant has also taken a position at odds with one of his defenses. He asserts Timberlake’s claims are “not ripe for adjudication” in his Answer at p. 5, but here argues its too late. W hen will Timberlake’s claim be ripe? It seems that Defendant takes the position that Timberlake can only bring this action after the constitutional violation occurs. Nelson and Hill clearly hold that this is not the law.
Defendant also disingenuously argues that the St ate of Indiana must be permitted to proceed because the changes to the protocol take too long. Hecontends it “take[s] time” to change the Indiana’s protocol and that it takes a “reasonable time” to investigate alternatives.1 Response in Opposition to Plaintiff’s Preliminary Injunction p. 4. However, it is now clearly that change in protocol take a mere eight (8) days. Defendant proposed changing the portocol on January 4, 2007. Apparently, this protocol was approved on Friday January 12, 2007. Thus, whi le asserting Timberlake should be barred from proceeding because he has not given Defendant time to invest igate, Defendant has apparently
1 Defendant makes similar claims in refusing to do the simply act of disclosing documents requested in Plaintiff’s Request for Production. Apparently, Defendant can investigate, study, review, assess, and formally change the protocol for executing a prisoner in 8 days, but he claims it would take 60 days to “assemble, compile, assess, review, and transmit” the documents Timberlake requested in discovery. Plaintiff’s Response to Request for Production at 3.
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investigated and made changes in its protocol. The point fromwhich the timeliness of Timberlake action should be measured is not the passage
of lethal injection in 1995. Nor was it three yearsago or six months ago. Timberlake’s execution was not imminent until Decem ber 15, 2007. Tim berlake had not exhausted federa l habeas rem edies available to him. Moreover, Timberlake still had not exhausted federal habeas when he filed this action since that action began on two days before this one.
Timberlake’s claim became ripe on Decem ber 15, 2006. Before Decem ber 15, 2006, Timberlake’s counsel reasonably believed he wouldbe proceeding in state post-conviction proceedings and that he would be there today, not here. Desp ite this, counsel in good faith immediately filed this action once he confirmed Defendant intended to execute Tim berlake using a protocol similar to that which was used by Florida in executing Mr. Diaz. A protocol which Florida’s Governor determined needed to be reviewed based on “constitutional imperative.” Complaint at Exhibit E p. 2. Given the circumstances, Timberlake has not been dilatory. The equities weigh in favor of allowing this action to proceed.
Likelihood of Success Defendant’s contention that Plaintiff has not shown a reasonable likelihood of success is built on challenges to the form of the information Plaintiff presented, not its substance. That Dr. Heath’s Affidavit was subm itted in an Arkansas case does the change the substance of the inf ormation presented.. As to the assertion that Arkansas uses 40%of the thiopental that Indiana uses, Florida uses double the amount of thiopental (10 gram s) that Indiana intends to use. See, Fl orida Department of Corrections, “Execution by Let hal Injection Procedures,” Effective for executions after August 16, 2006, p. 3 . Given that Mr. Diaz lay conscious even after10 grams of thiopental was injected by his
3

executioners, it is reasonable to infer the amount of thiopental does not diminish the substance of Dr. Heath’s opinions. See, Complaint Exhibit E p. 2.
Defendant makes much of the qualification of the persons under Indiana’s protocol, but there has been no disclosure of their qualification in the areas of pharmacology and “medical methods and procedures.” Response to Request for Production p. 4-5. Significantly, Defendant has not disclosed “licensure or certification” for the members of the execution team in the field of emergency medical services. He has disclosed “backgrounds” as EMT’s, emergency medical services, Red Cross First Responder, and home hospice. That does not qualify them to make judgments about medical matters. See, Ind.Code §16-31-3-1 et seq.
What happened in Florida with the Diaz executionand the actions Florida’s Governor has taken contradicts Defendant assertion that Timberlake has presented only a “hypothesis that something might go wrong.” Response p. 5. More importantly, Defendant admits in hisAnswer Timberlake’s Complaint that “[t]he is risk of inflicting severe and unnecessary pain and suffering in the lethal injection process is particularly grave in the execution of Plaintiff.”Complaint p. 6; Answer p. 3. Timberlake has shown a likelihood of success.
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Conclusion This action was brought at timely and appropriate time. Defendant has hampered this Court’s ability to consider fairly and fully the merits of this action. Defendant only challenges the form of the information presented, not its substance. Hehas provided no information contradicting the Complaint and Motion for Preliminary Injunction.
Respectfully submitted, /s/ Brent Westerfeld Brent Westerfeld Lorinda Meier Youngcourt
CERTIFICATE OF SERVICE I hereby certify that a copy of theforegoing will be filed electronically. Notice of this filing will be sent to the Counsel for Defendants, Thom as Quigley and Betsey Isenberg and Stepehn Creason, Deputy Attorneys General, Indiana Governm ent Center South, 402 W est Washington Street, Indianapolis, Indiana, 46204. Parties m ay access this f iling through the Court’s system . Thomas Quigley thomas.quigley@atg.in.gov Betsy Isenberg betsy.isenberg@atg.in.gov, and Stephen Creason stephen.creason@atg.in.gov this 15th day of January, 2007.

Brent Westerfeld Attorney at Law 6202 North College Avenue Post Office Box 30379 Indianapolis, IN 46230-0379 (317) 257-5200 Facsimile (317) 257-5300 bwesterfeld@wkelaw.com

/s/ Brent Westerfeld
Brent Westerfeld
Lorinda Meier Youngcourt Attorney at Law Post Office Box 206 Huron, Indiana 47437-0206 (812) 849-9852
Facsimile (812) 849-0162 lmyoungcourt@hughes.net
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE, Plaintiff, vs.
ED BUSS, Defendant.

) ) Cause No. 1:06-cv-1859-RLY-WTL ) ) HON. RICHARD L. YOUNG ) ) MAG. WILLIAM T. LAWRENCE ) ) )

MOTION OF MICHEAL LAMBERT TO INTERVENE AS PLAINTIFF-INTERVENOR
Michael Lambert, by and through his undersigned counsel, hereby moves this
Honorable Court pursuant to Rules 24(a)(2) of the Federal Rules of Civil Procedure, for
leave to intervene in this action as of right. In the alternative, and pursuant to Rule
24(b)(2) of the Federal Rules of Civil Procedure, Lambert requests permissive
intervention. As a death sentenced individual, Lambert has a significant interest in the
subject matter of this case and the existing parties may not adequately represent that
interest. Further, the parties to these proceedings will not be prejudiced by this
intervention. The reasons in support of this motion are more fully set forth in the attached
Memorandum in Support which is fully incorporated herein.
Respectfully Submitted,
/s/ Laurence E. Komp LAURENCE E. KOMP – 0060142 Attorney at Law P.O. BOX 1785 Manchester, MO 63011 Phone (636) 207 – 7330 Fax (636) 207 – 7351

-and-
/s/ Alan M. Freedman ALAN M. FREEDMAN CAROL HEISE Midwest Center for Justice, Ltd. 831 Main Street Evanston, IL 60202 Phone: (847) 492-1563 Fax: (847) 492-1861
COUNSEL FOR LAMBERT
MEMORANDUM IN SUPPORT OF MOTION OF MICHAEL LAMBERT TO INTERVENE AS PLAINTIFF-INTERVENOR
Plaintiff Timberlake, an Indiana death row inmate, filed this action under 42
U.S.C. § 1983 for violations and threatened violations of his right to be free from cruel
and unusual punishment under the Eighth and Fourteenth Amendments of the United
States Constitution. Proposed intervenor Lambert is also an Indiana death row inmate
awaiting execution of his death sentence, although an execution date has not been set. His
Petition for Writ of Certiorari remains pending before the United States Supreme Court.
Lambert is a true party in interest because he is similarly situated and will assert the same
causes of action as the Plaintiff. Further, Lambert’s intervention will not substantially
impair the rights of the original parties to the pending action, in fact it will avoid
piecemeal litigation of an identically situated plaintiff.
A. The Intervenor Satisfies the Requirements for Intervention as of Right as Set Forth In Fed. R. Civ. P. 24(a)(2).
Rule 24 (a) of the Federal Rules of Civil Procedure provides in pertinent part as
follows:
Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property
2

or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Fed. R. Civ. P. 24(a)(2). The purpose of the provision is to avoid a rash of lawsuits on related questions “by involving as many apparently concerned persons as is compatible with efficiency and due process.” Coalition of Arizona/New Mexico Counties v. Department of the Interior, 100 F.3d 837, 841 (10th Cir. 1996)(citing decisions by three Courts of Appeals). Therefore, “(t)he need to settle claims among a disparate group of affected persons militates in favor of intervention.” Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990). In order to intervene as of right, Lambert must satisfy four requirements: (1) the application must be timely; (2) “the applicant must claim an interest relating to the property or transaction which is the subject of the action”; (3) “the applicant must be so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest”; and (4) “existing parties must not be adequate representatives of the applicant's interest.” Sokaogon Chippewa Community v. Babbitt, 214 F.3d 941, 945-46 (7th Cir. 2000). As noted in Sokaogon, the test is essentialy that “at some fundamental level the proposed intervenor must have a stake in the litigation.” Id. at 946. Lamberts satisfies each of the above criteria. This Court should keep in mind that “In evaluating the motion to intervene, the district court must accept as true the non-conclusory allegations of the motion and crosscomplaint.” Lake Investors Dev. Group, Inc. v Egidi Dev. Group, 715 F2d 1256, 1258 (7th Cir. 1983) citing to Central States, Southeast and Southwest Areas Health & Welfare Fund v. Old Security Life Insurance Co., 600 F.2d 671, 679 (7th Cir. 1979). Further, “a
3

motion to intervene as a matter of right, moreover, should not be dismissed unless it appears to a certainty that the intervenor is not entitled to relief under any set of facts which could be proved under the complaint.” Lake Investors, at 1258. However, Requirements for intervention should generally be more liberal than those for standing to bring suit. United States v Board of School Comm'rs, 466 F2d 573 (7th Cir. 1972). That is because this Court should be “[m]indful of the Supreme Court’s admonition [to] avoid rigid construction of Rule 24…” Jessup v. Luther, 227 F.3d 993, 998 (7th Cir. 2000) citing to Missouri-Kansas Pipeline Co. v. United States, 312 U.S. 502, 505-06 (1941).
1. Lambert has Timely Filed His Motion. The Supreme Court has held: “Timeliness is to be determined from all the circumstances.” NAACP v. New York, 413 U.S. 345, 366 (1973). Among the relevant factors is the stage of the litigation at which the intervention is sought. NAACP, at 366369; EEOC v. United Air Lines, Inc., 515 F.2d 946, 949 (7th Cir. 1975). Plaintiff Timberlake initiated his lawsuit on December 29, 2006. Minimal discovery has occurred, and the case appears to ready for a pretrial conference regarding how matters should proceed. Therefore, the proposed intervention will not impair the progress of proceedings or impact the interests of the original parties. See Heartwood, Inc., et al. v. United States Forest Service, 316 F.3d 694 (7th Cir. 2003) (Not timely when filed after settlement agreement); Reid L. v. Illinois State Board of Education, 289 F.3d 1009, 1017-1018 (7th Cir. 2002)(Ten years after suit and ten months after court approved settlement untimely). Lambert has acted with diligence – filing his motion to intervene two (2) months after the suit’s original filing; prior to any discovery processes being completed; prior to
4

any final pretrial conference; and well before any trial. In these circumstances, Lambert has timely moved to intervene.
2. Lambert has a “significant legal interest” in this case. The Seventh Circuit recognizes this element “has never been defined with particular precision.” Security Insurance Company of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1380 (7th Cir. 1995). The Supreme Court has embraced a broad definition of the requisite interest, see Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129 (1967), describing it as one which is “significantly protectable,” Donaldson v. United States, 400 U.S. 517, 531 (1971). Thus, this Court should apply a broad and general definition as to what constitutes an appropriate interest. See, e.g., Linton v. Commissioner of Health and Environment, 973 F.2d 1311, 1319 (6th Cir. 1992)(economic interest sufficient for intervention); Herdman v. Town of Angelica, 163 F.R.D. 180, 183 (W.D.N.Y. 1995)(purity and integrity of local air and water and in the residential and rural character of a town); Arizona/New Mexico, 100 F.3d at 841-44 (interest of a naturalist photographer in the protection of an owl species). Lambert’s shared and individual interests are far more urgent, direct, and addressable than what Rule 24(a) requires. See South v. Rowe, 759 F.3d 610, 612 (7th Cir. 1985) (Third party beneficiary -inmate using a library pursuant to a consent decreehas an interest.). Lambert’s interest in not being executed in violation of his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution is the same legal and equitable interest as the original Plaintiff. See Pure Oil Co. v. Ross et al., 170 F.2d 651, 653 (7th Cir. 1948) (intervention appropriate in property action to “prevent future litigation by taking away the necessity of
5

a multiplicity of suits.”) As in South and Pure Oil, Lambert’s interest is sufficient to permit intervention.
3. Lambert’s ability to protect his interests will be impaired if he is not permitted to intervene.
Unless this Court grants intervention, Lambert will be unable to protect his interests; his rights will be impaired. In this case, if Timberlake did not prevail, it would impair, if not completely destroy, Lambert’s ability to advance his arguments and put forth evidence in a separate action in this Court. The Seventh Circuit finds that “impairment” exists if the decision of a legal question would, as a practical matter, foreclose rights of the proposed intervenor in a subsequent proceeding; foreclosure is to be measured in terms of stare decisis. Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 204 (7th Cir. 1982). If there were not a commonality of issues and Timberlake were not raising all arguments (all of which Lambert seeks to join), then intervention would not be appropriate. See EEOC v. United Air Lines, 515 F.2d 946, 950 (7th Cir. 1975). However as in Meridian and unlike in EEOC, Petitioner can show impairment because there is an absolute commonality of issues and arguments.
Further, the time-sensitive nature of Lambert’s claims makes intervention necessary for the protection of his interests. If Timberlake prevails after Lambert is executed, Lambert’s rights will have been denied without recourse. See South v. Rowe, 759 F.3d at 612 (Third party beneficiary -inmate using a library pursuant to a consent decree- has establishes an impairment when proposed cessation of consent decree would deny him usage to library under desolved decree); see cf. Americans United for Separation of Church and State v. City of Grand Rapids, 922 F. 2d 303, 305-06 (6th Cir. 1990)(where intervenor sought to display a menorah on public property during
6

Chanukah, and the extra time involved in initiating a lawsuit could have pushed resolution of the question beyond the coming Chanukah season, intervention was granted).
Thus, Lambert will be unable to protect his interests and his rights will be impaired absent his intervention.
4. Timberlake cannot adequately protect the applicant’s interests, which are wholly dependent upon the timeline of applicant’s case.
The inadequate representation prong of the test requires only a minimal and hypothetical showing:
The requirement of the Rule is satisfied if the applicant shows that representation of his interest “may be” inadequate; and the burden of making that showing should be treated as minimal. Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n.10 (1972). Therefore, applicants “should be allowed to intervene unless it is clear that [Timberlake] will provide adequate representation.” 7C Wright, Miller, and Kane, Federal Practice and Procedure at 319 (2d ed. 1986). The nature of Lambert’s claims makes intervention necessary to protect his interests because Timberlake’s litigation does not contemplate Lambert’s independent schedule, which may end in his execution on a different date than Timberlake. Since it is clear that Timberlake cannot adequately represent Lambert, he has the right to represent himself.1
1 As an alternative, Lambert requests this Court to allow conditional intervention subject to a future showing that Timberlake is not adequately representing Lambert’s interests. Solid Waste Agency of N. Cook County v. U.S. Army corps of Eng’rs 101 F.3d 503, 508-09 (7th Cir. 1996).
7

B. Alternatively, The Intervenor Satisfies the Requirements for Permissive Intervention as Set Forth In Fed. R. Civ. P. 24(b)(2). As noted above, Lambert clearly has a direct and substantial interest in the
outcome of this matter. Lambert’s interests and Timberlake’s interests both share the same questions of law and fact. The Seventh Circuit recognized the correctness of permissive intervention when an intervenor presented “common questions of law and fact.” Crumble v. Blumthal, 549 F.2d 462, 468 (7th Cir. 1977). Not only does Lambert present “common” questions, but he presents identical questions of law and fact. Indeed, as noted by the Seventh Circuit in affirming permissive intervention, “[i]n this case, denial of intervention would in all likelihood have created additional litigation and the possibility of conflicting results.” Security Insurance Company of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995).
Because this case has not proceeded past its infancy, the proposed intervention will not prejudice or delay the rights of any of the original parties. Cf. Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 531 (7th Cir. 1988) (expressing concern that intervenors might interfere with settlement possibilities). In no manner will either party be prejudiced – in that the parties have not completed the discovery process, there has only been limited discovery, and there has been no final pretrial conference.
Lambert therefore requests that the Court grant permissive intervention under Civil Rule 24(b), should the Court decide not to grant intervention as of right.
CONCLUSION For the foregoing reasons, proposed Intervenor Michael Lambert respectfully requests that his motion be GRANTED and that he be permitted to intervene in the instant action.
8

Respectfully Submitted, /s/ Laurence E. Komp LAURENCE E. KOMP – 0060142 Attorney at Law P.O. BOX 1785 Manchester, MO 63011 Phone (636) 207 – 7330 Fax (636) 207 – 7351 -and/s/ Alan M. Freedman ALAN M. FREEDMAN CAROL HEISE Midwest Center for Justice, Ltd. 831 Main Street Evanston, IL 60202 Phone: (847) 492-1563 Fax: (847) 492-1861 COUNSEL FOR LAMBERT
9

CERTIFICATE OF SERVICE I hereby certify that on March 1, 2007, a copy of the foregoing MOTION OF MICHEAL LAMBERT TO INTERVENE AS PLAINTIFF-INTERVENOR was filed electronically. Notice of this filing will be sent to the following persons by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
Brent Westerfeld, Esq. bwesterfeld@wkelaw.com Lorinda Meier Youngcourt, Esq. EVANS & YOUNGCOURT LMYoungcourt@hughes.net Richard A. Waples, Esq. WAPLES & HANGER Richwaples@aol.com Thomas Quigley, Betsey Isenberg and Stephen Creason,
Deputy Attorneys General, thomas.quigley@atg.in.gov betsy.isenberg@atg.in.gov stephen.creason@atg.in.gov
/s/ Alan M. Freedman ALAN M. FREEDMAN COUNSEL FOR LAMBERT
10

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE, Plaintiff, vs.
ED BUSS, Defendant.

) ) Cause No. 1:06-cv-1859-RLY-WTL ) ) HON. RICHARD L. YOUNG ) ) MAG. WILLIAM T. LAWRENCE ) ) )

MOTION OF DAVID LEON WOODS TO INTERVENE AS PLAINTIFF-INTERVENOR
David Leon Woods, by and through his undersigned counsel, hereby moves this
Honorable Court pursuant to Rules 24(a)(2) of the Federal Rules of Civil Procedure, for
leave to intervene in this action as of right. In the alternative, and pursuant to Rule
24(b)(2) of the Federal Rules of Civil Procedure, Woods requests permissive
intervention. As a death sentenced individual, Woods has a significant interest in the
subject matter of this case and the existing parties may not adequately represent that
interest. Further, the parties to these proceedings will not be prejudiced by this
intervention. The reasons in support of this motion are more fully set forth in the attached
Memorandum in Support which is fully incorporated herein.
Respectfully Submitted,
/s/ William Van Der Pol, Jr. WILLIAM VAN DER POL, Jr. 2128-55 Attorney at Law 133 W. Washington Street P.O. Box 1799 Martinsville, IN 46151 Phone (765) 349-0362

Fax (765) 349 – 2199
COUNSEL FOR WOODS
MEMORANDUM IN SUPPORT OF MOTION OF DAVID WOODS TO INTERVENE AS PLAINTIFF-INTERVENOR
Plaintiff Timberlake, an Indiana death row inmate, filed this action under 42 U.S.C. § 1983 for violations and threatened violations of his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution. Proposed intervenor Woods is also an Indiana death row inmate awaiting execution of his death sentence, although an execution date has not been set. Woods filed a Petition for Leave to file Successor Petition for Post Conviction Relief on December 29, 2006. to date, the Indiana Supreme Court has neither granted or denied the Petition. Woods is a true party in interest because he is similarly situated and will assert the same causes of action as the Plaintiff. Further, Wood’s intervention will not substantially impair the rights of the original parties to the pending action, in fact it will avoid piecemeal litigation of an identically situated plaintiff.
A. The Intervenor Satisfies the Requirements for Intervention as of Right as Set Forth In Fed. R. Civ. P. 24(a)(2).
Rule 24 (a) of the Federal Rules of Civil Procedure provides in pertinent part as follows:
Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
2

Fed. R. Civ. P. 24(a)(2). The purpose of the provision is to avoid a rash of lawsuits on related questions “by involving as many apparently concerned persons as is compatible with efficiency and due process.” Coalition of Arizona/New Mexico Counties v. Department of the Interior, 100 F.3d 837, 841 (10th Cir. 1996)(citing decisions by three Courts of Appeals). Therefore, “(t)he need to settle claims among a disparate group of affected persons militates in favor of intervention.” Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990).
In order to intervene as of right, Wood must satisfy four requirements: (1) the application must be timely; (2) “the applicant must claim an interest relating to the property or transaction which is the subject of the action”; (3) “the applicant must be so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest”; and (4) “existing parties must not be adequate representatives of the applicant's interest.” Sokaogon Chippewa Community v. Babbitt, 214 F.3d 941, 945-46 (7th Cir. 2000). As noted in Sokaogon, the test is essentialy that “at some fundamental level the proposed intervenor must have a stake in the litigation.” Id. at 946. Woods satisfies each of the above criteria.
This Court should keep in mind that “In evaluating the motion to intervene, the district court must accept as true the non-conclusory allegations of the motion and crosscomplaint.” Lake Investors Dev. Group, Inc. v Egidi Dev. Group, 715 F2d 1256, 1258 (7th Cir. 1983) citing to Central States, Southeast and Southwest Areas Health & Welfare Fund v. Old Security Life Insurance Co., 600 F.2d 671, 679 (7th Cir. 1979). Further, “a motion to intervene as a matter of right, moreover, should not be dismissed unless it appears to a certainty that the intervenor is not entitled to relief under any set of facts
3

which could be proved under the complaint.” Lake Investors, at 1258. However, Requirements for intervention should generally be more liberal than those for standing to bring suit. United States v Board of School Comm'rs, 466 F2d 573 (7th Cir. 1972). That is because this Court should be “[m]indful of the Supreme Court’s admonition [to] avoid rigid construction of Rule 24…” Jessup v. Luther, 227 F.3d 993, 998 (7th Cir. 2000) citing to Missouri-Kansas Pipeline Co. v. United States, 312 U.S. 502, 505-06 (1941).
1. Woods has Timely Filed His Motion. The Supreme Court has held: “Timeliness is to be determined from all the circumstances.” NAACP v. New York, 413 U.S. 345, 366 (1973). Among the relevant factors is the stage of the litigation at which the intervention is sought. NAACP, at 366369; EEOC v. United Air Lines, Inc., 515 F.2d 946, 949 (7th Cir. 1975). Plaintiff Timberlake initiated his lawsuit on December 29, 2006. Minimal discovery has occurred, and the case appears to ready for a pretrial conference regarding how matters should proceed. Therefore, the proposed intervention will not impair the progress of proceedings or impact the interests of the original parties. See Heartwood, Inc., et al. v. United States Forest Service, 316 F.3d 694 (7th Cir. 2003) (Not timely when filed after settlement agreement); Reid L. v. Illinois State Board of Education, 289 F.3d 1009, 1017-1018 (7th Cir. 2002)(Ten years after suit and ten months after court approved settlement untimely). Woods has acted with diligence – filing his motion to intervene two (2) months after the suit’s original filing; prior to any discovery processes being completed; prior to any final pretrial conference; and well before any trial. In these circumstances, Lambert has timely moved to intervene.
4

2. Woods has a “significant legal interest” in this case. The Seventh Circuit recognizes this element “has never been defined with particular precision.” Security Insurance Company of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1380 (7th Cir. 1995). The Supreme Court has embraced a broad definition of the requisite interest, see Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129 (1967), describing it as one which is “significantly protectable,” Donaldson v. United States, 400 U.S. 517, 531 (1971). Thus, this Court should apply a broad and general definition as to what constitutes an appropriate interest. See, e.g., Linton v. Commissioner of Health and Environment, 973 F.2d 1311, 1319 (6th Cir. 1992)(economic interest sufficient for intervention); Herdman v. Town of Angelica, 163 F.R.D. 180, 183 (W.D.N.Y. 1995)(purity and integrity of local air and water and in the residential and rural character of a town); Arizona/New Mexico, 100 F.3d at 841-44 (interest of a naturalist photographer in the protection of an owl species). Woods’s shared and individual interests are far more urgent, direct, and addressable than what Rule 24(a) requires. See South v. Rowe, 759 F.3d 610, 612 (7th Cir. 1985) (Third party beneficiary -inmate using a library pursuant to a consent decreehas an interest.). Woods’s interest in not being executed in violation of his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution is the same legal and equitable interest as the original Plaintiff. See Pure Oil Co. v. Ross et al., 170 F.2d 651, 653 (7th Cir. 1948) (intervention appropriate in property action to “prevent future litigation by taking away the necessity of a multiplicity of suits.”) As in South and Pure Oil, Lambert’s interest is sufficient to permit intervention.
5

3. Woods’s ability to protect his interests will be impaired if he is not permitted to intervene.
Unless this Court grants intervention, Woods will be unable to protect his interests; his rights will be impaired. In this case, if Timberlake did not prevail, it would impair, if not completely destroy, Woods’s ability to advance his arguments and put forth evidence in a separate action in this Court. The Seventh Circuit finds that “impairment” exists if the decision of a legal question would, as a practical matter, foreclose rights of the proposed intervenor in a subsequent proceeding; foreclosure is to be measured in terms of stare decisis. Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 204 (7th Cir. 1982). If there were not a commonality of issues and Timberlake were not raising all arguments (all of which Woods seeks to join), then intervention would not be appropriate. See EEOC v. United Air Lines, 515 F.2d 946, 950 (7th Cir. 1975). However as in Meridian and unlike in EEOC, Petitioner can show impairment because there is an absolute commonality of issues and arguments.
Further, the time-sensitive nature of Woods’s claims makes intervention necessary for the protection of his interests. If Timberlake prevails after Woods is executed, Woods’s rights will have been denied without recourse. See South v. Rowe, 759 F.3d at 612 (Third party beneficiary -inmate using a library pursuant to a consent decreehas establishes an impairment when proposed cessation of consent decree would deny him usage to library under desolved decree); see cf. Americans United for Separation of Church and State v. City of Grand Rapids, 922 F. 2d 303, 305-06 (6th Cir. 1990)(where intervenor sought to display a menorah on public property during Chanukah, and the extra time involved in initiating a lawsuit could have pushed resolution of the question beyond the coming Chanukah season, intervention was granted).
6

Thus, Woods will be unable to protect his interests and his rights will be impaired absent his intervention.
4. Timberlake cannot adequately protect the applicant’s interests, which are wholly dependent upon the timeline of applicant’s case.
The inadequate representation prong of the test requires only a minimal and hypothetical showing:
The requirement of the Rule is satisfied if the applicant shows that representation of his interest “may be” inadequate; and the burden of making that showing should be treated as minimal. Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n.10 (1972). Therefore, applicants “should be allowed to intervene unless it is clear that [Timberlake] will provide adequate representation.” 7C Wright, Miller, and Kane, Federal Practice and Procedure at 319 (2d ed. 1986). The nature of Woods’s claims makes intervention necessary to protect his interests because Timberlake’s litigation does not contemplate Lambert’s independent schedule, which may end in his execution on a different date than Timberlake. Since it is clear that Timberlake cannot adequately represent Woods, he has the right to represent himself.1
1 As an alternative, Woods requests this Court to allow conditional intervention subject to a future showing that Timberlake is not adequately representing Woods’s interests. Solid Waste Agency of N. Cook County v. U.S. Army corps of Eng’rs 101 F.3d 503, 508-09 (7th Cir. 1996).
7

B. Alternatively, The Intervenor Satisfies the Requirements for Permissive Intervention as Set Forth In Fed. R. Civ. P. 24(b)(2). As noted above, Woods clearly has a direct and substantial interest in the outcome
of this matter. Woods’s interests and Timberlake’s interests both share the same questions of law and fact. The Seventh Circuit recognized the correctness of permissive intervention when an intervenor presented “common questions of law and fact.” Crumble v. Blumthal, 549 F.2d 462, 468 (7th Cir. 1977). Not only does Woods present “common” questions, but he presents identical questions of law and fact. Indeed, as noted by the Seventh Circuit in affirming permissive intervention, “[i]n this case, denial of intervention would in all likelihood have created additional litigation and the possibility of conflicting results.” Security Insurance Company of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995).
Because this case has not proceeded past its infancy, the proposed intervention will not prejudice or delay the rights of any of the original parties. Cf. Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 531 (7th Cir. 1988) (expressing concern that intervenors might interfere with settlement possibilities). In no manner will either party be prejudiced, in that the parties have not completed the discovery process, there has only been limited discovery, and there has been no final pretrial conference.
Woods therefore requests that the Court grant permissive intervention under Civil Rule 24(b), should the Court decide not to grant intervention as of right.
CONCLUSION For the foregoing reasons, proposed Intervenor David Leon Woods respectfully requests that his motion be GRANTED and that he be permitted to intervene in the instant action.
8

Respectfully Submitted, /s/ William Van Der Pol, Jr. William Van Der Pol, Jr. – 2128-55 Attorney at Law 133 W. Washington St. P.O. BOX 1799 Martinsville, IN 46151 Phone (765) 349 – 0362 Fax (765) 349 - 2199 COUNSEL FOR WOODS
9

CERTIFICATE OF SERVICE I hereby certify that on March 5, 2007, a copy of the foregoing MOTION OF DAVID LEON WOODS TO INTERVENE AS PLAINTIFF-INTERVENOR was filed electronically. Notice of this filing will be sent to the following persons by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
Brent Westerfeld, Esq. bwesterfeld@wkelaw.com Lorinda Meier Youngcourt, Esq. EVANS & YOUNGCOURT LMYoungcourt@hughes.net Richard A. Waples, Esq. WAPLES & HANGER Richwaples@aol.com Thomas Quigley, Betsey Isenberg and Stephen Creason,
Deputy Attorneys General, thomas.quigley@atg.in.gov betsy.isenberg@atg.in.gov stephen.creason@atg.in.gov Alan Freidman, Esq. Fbpc@aol.com Lawrence Komp, Esq. lekomp@swbell.net
/s/ William Van Der Pol, Jr. WILLIAM VAN DER POL, JR. COUNSEL FOR WOODS
10

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

NORMAN TIMBERLAKE,
Plaintiff, vs.
ED BUSS, Superintendent, Indiana State Prison,
Defendant.

)

)

)

)

No. 1:06-cv-1859-RLY-WTL

)

)

)

)

)

Entry Concerning Selected Matters
The court, having considered the above action and the matters which are pending, makes the following rulings:
1. The defendant’s motion for judgment on the pleadings isdenied. The reasons for this ruling are that (a) the eve-of-execuotin argument by the Stateis no longer valid, and (b) the State’s interest in carrying out the plaintiff’s execution is no longer threatened by the plaintiff’s action. These are the result of the stay of execution issued by the Indiana Supreme Court on the morning of the day set for trial in this case. That stay continues in effect and is indefinite in duration.
2. The plaintiff’s motion for a preliminary injunction isdenied. The reason for this ruling is that the decision of the Indiana Supreme Court on January 17, 2007, resulted in an indefinite stay of execution of the plaintiff.
3. The motions to intervene of Mi chael Lambert and David Leon Woods are granted. The motion to amend/correct the request to proceed in forma pauperis of intervenor plaintiff Woods is granted. The requests to proceed in forma pauperis of the intervening plaintiffs are likewisegranted. Nothing in these rulings, however, shall prevent the court from treating the claims of David Leon Woods or any of the plaintiffs separately or as needed in order to address and resolve those claims (or the defense(s) pertaining to those claims).
IT IS SO ORDERED.

Date: 04/10/2007

_______________________________
RICHARD L. YOUNG, JUDGE United States District Court Southern District of Indiana

Distribution:
Stephen R. Creason INDIANA STATE ATTORNEY GENERAL stephen.creason@atg.in.gov
Betsy M. Isenberg INDIANA STATE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov
Thomas D. Quigley INDIANA STATE ATTORNEY GENERAL thomas.quigley@atg.in.gov
Richard A. Waples WAPLES & HANGER richwaples@aol.com
Brent Westerfeld bwesterfeld@wkelaw.com
Lorinda Meier Youngcourt EVANS & YOUNGCOURT lmyoungcourt@hughes.net
William Van Der Pol Jr. bvander3@insightbb.com
Linda M. Wagoner lmwagoner@mchsi.com
Alan M Freedman fbpc@aol.com

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE

)

)

Plaintiff,

)

)

MICHAEL ALLEN LAMBERT,

)

DAVID LEON WOODS,

)

)

Intervenor Plaintiffs,

)

)

v.

)

)

J. DAVID DONAHUE, Commissioner )

Indiana Department of Corrections

)

)

ED BUSS, Superintendent,

)

Indiana State Prison,

)

)

and

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendant.

)

CAUSE NO. 1:06-cv-1859-RLY-WTL

STATEMENT OF CLAIM OF INTERVENING PLAINTIFF MICHAEL ALLEN LAMBERT

I.

Nature of Action

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

violations of the right of plaintiff-intervenor, MICHAEL ALLEN LAMBERT, to be free from

cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States

Constitution. Plaintiff seeks equitable and injunctive relief.

II.

Plaintiff

1

2. Michael Allen Lambert is a United States Citizen and a resident of the State of Indiana. He is currently a death-sentenced inmate under the supervision of the Indiana Department of Corrections, DOC #922001. He is held at the Indiana State Prison in Michigan City, Indiana.
III. Defendants 3. Defendant J. David Donahue, is the Commissioner of the Indiana Department of Corrections [hereafter “IDOC”]. Defendant, Ed Buss is the Superintendent of the Indiana State Prison where death row inmates are housed. Defendants, Unknown Executioners, are employed or contracted by the Indiana State Prison to make preparations for, and carry out, the execution of Plaintiff. They include, but are not limited to, correctional officers, physician, nurses, nursing assistances, and “executioners.” Plaintiff does not yet know their identities and it is Plaintiff’s understanding that Defendants will not reveal the identities of these persons.
IV. Jurisdiction and Venue 4. This Court has jurisdiction pursuant to 28 U.S.C. sec.’s 1331 (federal question), 1343 (civil rights violation), 2201 (declaratory relief), and 2202 (further relief). This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. sec. 1983. 5. Venue in this Court is proper under 28 U.S.C. sec. 1391.
V. Facts
2

6. Defendant on April 4, 2007, filed State’s Verified Motion to Set Execution Date, in Lambert v. State, No. 18S00-0412-SD-503, requesting that the Indiana Supreme Court set the date for Lambert’s execution. Defendants are responsible for carrying out plaintiff’s execution. 7. Under Indiana law, death sentences shall be carried out by “intravenous injection of a lethal substance or substances…in a quantity sufficient to cause the death.” Ind. Code sec. 35-386-1(a). The statute prescribes no specific drugs, dosages, drug combinations, or the manner of intravenous line access to be used in the execution process; nor does the statute proscribe any certification, training, or licensure required of those who participate in the execution. All details of the execution are left to the Indiana Department of Corrections to implement through “rules under Ind. Code sec. 4-22-2.” Ind. Code sec. 35-38-6-1(d). 8. Plaintiff reasonably believes the Department of Correction will execute him by poisoning him with a lethal combination of three chemical substances: Sodium Pentothal (Thiopental), a short-acting barbiturate; Pancuronium Bromide (Pavulon), a curarederived agent which paralyzes all skeletal or voluntary muscles, but which has no effect whatsoever on awareness, cognition or sensation; and Potassium Chloride, an extraordinarily painful chemical which activates the nerve fibers lining the inmate’s veins and which can interfere with the rhythmic contractions of the heart and cause cardiac arrest. See Timberlake Complaint, [Docket Entry #1] Exhibit “B” - LaPorte County Coroner Letter Re: Kevin Hough Execution on May 2, 2003, and Docket Entry #13, Defendant’s Response to Discovery, at paragraph 3. 9. On understanding and belief, Defendants will follow procedures established in Department of Correction Directive ISP 06-26 (January 4, 2007) in executing Plaintiff.
3

See Timberlake [Docket Entry #32] Submission of Protocol, filed by Defendant. (Attachments: # 1 Operation Directive ISP 06-26).
Directive 06-26 and the predecessor directive, Indiana Department of Correction Operation Directive 02-04, March 18, 2003, were adopted without medical research or review to determine that a prisoner would not suffer unnecessary and wanton pain. Medically qualified persons were not involved in its adoption. The procedures were patterned after those followed in other states including, but not limited to, Illinois, Texas, Washington, Oklahoma, and Louisiana. 10. Directive 06-26 does not specify the lethal chemicals to be used nor does it specify the quantity or concentration of any chemical used in the execution process. In addition, sodium pentothal should be titrated against patient requirements as governed by age, sex, and body weight.” “Thiopental Sodium: Clinical Pharmacology”, RxList Drug Database (Nov. 26, 2005) http://www.rxlist.com/cgi/-generic3/thiopental_ids.htm. Persons who are anxious, such as one who is about to be executed, may require a higher dosage of sodium pentothal than the average pre-medicated surgical patient. Leonidas G. Koniaris et al, “Inadequate Anesthesia in Lethal Injection for Execution”, www.thelancet.com, vol. 365 (April 16, 2005) 1412. 11. Directive 06-26 contains no standardized time for administration of each chemical nor are there any guidelines for determining when each chemical is to be injected. There is no standardized procedure ensuring the anesthetic agent is properly flowing into the prisoner. And, there is no standardized procedures for ensuring that the prisoner is properly sedated before lethal chemicals are injected.
4

12. Directive 06-26 does not establish minimum qualifications or the expertise required of personnel who perform the tasks in the lethal injection process, other than requiring a physician to perform a “cut-down” procedure if an adequate vein cannot be located. See Timberlake [Docket Entry #32] Submission of Protocol, filed by Defendant. (Attachments: # 2 Appendix O to Operation Directive ISP 06-26) [“Draft Procedure for Venus Cut Down].
There is no procedure specified if adequate flow in the IV cannot be maintained. Directive 06-26 contains no definition of what an “adequate vein” is nor does it specify any requirements regarding the flow in the IV. 13. The only personnel selection guideline contained in Directive 06-26 is a requirement that personnel be screened to “assess their emotional stability and their willingness/ability to handle the stress of assisting with the execution.” The protocol does not require that the injection team members be qualified in any particular way. The IV catheters are to be inserted by a team of persons whom IDOC has represented as having at some time had training or background as emergency medical technicians. See Timberlake [Docket Entry #17] Exhibit in Support re #14 Motion for Preliminary Injunction Exhibit 3 in support of motion for preliminary injunction, filed by Plaintiff. The IDOC has not presented any information which shows that these persons are currently licensed or credentialed as having been adequately trained and competent to mix and prepare the lethal chemicals, place IV lines, monitor the IV lines to insure they remain properly placed, and are flowing properly. The IDOC has not presented any information which shows that placement and monitoring of IV lines is currently part of any team members’ regular occupation or duties.
5

14. Directive 06-26 contains no guidelines—other than utilizing a physician to perform a “cut down” if the IV team cannot start an IV—upon which execution personnel can rely if required to exercise discretion during any part of the execution process. Directive 06-26 provides that the injection procedure continues until the prisoner is “presumed dead.” If the IV team is unsuccessful in placing a catheter in each of the condemned inmate’s arms, “cut-down” procedures will be initiated. The IDOC procedures for cut-downs include a 2.5 cm incision, closing the wound with stitching, and covering the site of the IV access with a sterile dressing. This sterile dressing covers the site of the IV insertion and effectively acts to obscure visualization of the site during execution and monitoring that the IV remains properly in place. Adequate visualization is critical for assessment of IV failures like infiltration and leakage. Timberlake, [Docket Entry No. 40] Plaintiff’s Second Supplemental Response to Defendant’s Interrogatories to Plaintiff and Amendment to Witness and Exhibit List, January 16, 2007 Affidavit of Mark J. S. Heath, M.D. [hereafter “Affidavit of Dr. Heath”]. A cut down is a complex medical if not surgical procedure requiring equipment and skill not accounted for in Indiana’s protocol on cut down procedures. Very serious complications, including severe pain, hemorrhage, and collapse of a lung potentially leading to suffocation can result from doing an improper cut-down. Cut down is an outdated, unconscionable method of achieving central venous access. Its use as a backup method of achieving IV access would defy contemporary medical standards and be a violation of any modern standard of decency. Since it has been virtually completely supplanted by the “percutaneous” technique, which is less invasive, less painful, less mutilating, faster, safer, and less expensive, its use would be a gratuitous infliction of
6

pain and mutilation to the condemned prisoner. Declaration of Dr. Heath at paragraphs 55-56. This is readily apparent from the extraordinary time it took for someone to perform a cut-down during Tommie’s execution,1 See Suzanne McBride, Problem with Vein Delays Execution, INDIANAPOLIS NEWS, July 18, 1996, at 1, and the postexecution photographs of Tommie Smith, DOC. No. 4330. See Timberlake, Docket Entry #24, Exhibit in Support re 14 Motion for Preliminary Injunction Exhibit 9 in support of Motion for Preliminary Injunction, filed by Plaintiff.
As to any other problems, complications or unforeseen events involving the mixing and preparation of chemicals, establishing and maintaining a properly placed and flowing IV line, the execution team has no IDOC guidelines to rely upon if required to exercise discretion during any part of the execution process. 15. Sodium pentothal is a short-acting barbiturate which is ordinarily used to render a surgical patient unconscious for mere minutes, only in the induction phase of anesthesia, specifically so that the patient may re-awaken and breathe on their own power if any complications arise in inserting a breathing tube pre-surgery. Because of this brief duration, it is highly unlikely that sodium pentothal will provide a sedative effect through the entire execution process. Due to the chemical combination used in the Indiana execution process, there is also a probability that the sedative effect of the sodium pentothal will be neutralized instantly by the second chemical, Pavulon (Pancuronium Bromide). 16. If Plaintiff is not adequately sedated, he will suffer excruciating pain as a result of 1 The execution team first tried to insert an IV into Tommie Smith’s arms. That failed, and the Warden ordered a physician to do a cut down. The physician instead attempted to insert an IV into Smith’s neck. He failed to accomplish this, and instead did the cut down on Smith’s ankle. See Testimony of Warden Al Parke, June 18, 1998 at 47-57.
7

the asphyxiation caused by the Pavulon while he remains conscious yet unable to move a
muscle, especially not breathing muscles, and suffers agonizing internal venous and
organ burning prior to and during thee cardiac arrest caused by the Potassium Chloride.
17. To the extent that the extremely short acting effects of the first chemical, Sodium
Pentothal, renders the plaintiff-intervenor conscious, and/or to the extent that Sodium
Pentothal is neutralized by the second chemical, Pavulon, this paralytic chemical
[Pavulon] will serve only to mask the agonizing pain and strangulation of Plaintiff-
intervenor. Regardless of the level of pain or the sensation of strangulation, Pavulon
makes it impossible to move a single muscle, thus falsely creating the appearance of
sleep, for in fact, the drug has no effect on the brain, on consciousness or on awareness.
18. The American Veterinary Medical Association condemns the use of pancuronium
bromide in euthanizing dogs and cats due to the risk that the animal might not be properly
sedated by the barbiturate sodium pentothal, and therefore would be conscious of the
severe pain of asphyxiation while being suffocated by this neuromuscular blocking agent. Indeed, its use is prohibited in animal euthanasia in nineteen states. 2 Although this is the
standard of care set by law in many states for the euthanasia of dogs and cats by sodium
2 The states that expressly forbid the use of neuromuscular blocking agents to euthanize animals are: Florida, Fla. Stat. §§ 828.058 and 828.065; Georgia, Ga. Code Ann. § 4-115.1; Maine, Me. Rev. Stat. Ann., tit. 17, § 1044; Maryland, Md. Code Ann., Criminal Law, § 10-611; Massachusetts, Mass. Gen. Laws ch. 140 § 151A; New Jersey, N.J. Stat. Ann. 4:22-19.3; New York, N.Y. Agric. & Mkts Law § 374; Oklahoma, Okla. Stat. tit. 4, § 501; and Tennessee, Tenn. Code Ann. § 44-17-303. The states that mandate the use of particular methods for animal euthanasia, most often the use of the sedative sodium pentobarbitol, and therefore implicitly ban the use of neuromuscular blocking agents are: Connecticut, Conn. Gen. Stat. § 22-344a; Delaware, Del. Code Ann. tit. 3, § 8001; Illinois, 510 Ill. Comp. Stat. 70/2.09; Kansas, Kan. Stat. Ann. § 47-1718(a); Kentucky, Ky. Rev. Stat. Ann. § 321.181(17) and Ky. Admin. Regs. 16:090 section 5(1); Louisiana, La. Rev. Stat. Ann. § 3:2465; Missouri, Mo. Rev. Stat. § 578.005(7); Rhode Island, R.I. Gen. Laws § 4-1-34; and South Carolina; S.C. Code Ann. § 47-3-420; Texas, Tex. Health & Safety Code Ann. § 821.052(a).
8

pentothal and potassium injection, the IDOC protocol does not eliminate pancuronium bromide, or in using it, provide for any credible verification that the inmate is and remains unconscious. Declaration of Dr. Heath, at paragraph 28. See also., Rev. Code of the Consolidated City and County of Indianapolis/Marion, Indiana, Ch. 531 (Animals), Article VI (Euthanasia of Animals), Sec. 531-601(a) (“The animal care and control division, other animal shelters, and/or public animal facilities which destroy animals in the city, shall use only such methods, materials and standards as approved by the American Veterinary Medical Association for said purpose. In no event shall an animal be euthanized inhumanely.”); Id. IDOC’s procedures do not even comply with the minimal guidelines set forth by the American Veterinary Medical Association for the euthanasia of animals. Declaration of Dr. Heath, at paragraph 40. . 19. There is no medical dispute that intravenous injection of the third lethal chemical, concentrated potassium chloride solution, required to be administered by the Indiana Department of Corrections, causes excruciating pain. The vessel walls of veins are richly supplied with sensory nerve fibers that are highly sensitive to potassium ions. There exist other available, equally effective chemicals which can be used to stop the heart and which are essentially painless medications for stopping the heart. [Declaration of Mark Heath, M.D., at 6. 20. The statute authorizing lethal injection in Indiana does not require the use of potassium chloride to cause cardiac arrest. 21. The risk of inflicting severe and unnecessary pain and suffering in the lethal injection process is particularly grave in the execution of Plaintiff-Intervenor, Lambert.
9

22. Untrained, unskilled, personnel lacking the necessary knowledge are required to be responsible for the storage, mixing, dosage calculation and preparation of the three drugs to be used to cause Lambert’s death. Errors in the storage, mixing and preparation of these drugs—especially Sodium Pentothal—will likely result in: inadequate anesthesia to Lambert, resulting in his remaining conscious during the administration of the subsequent lethal drugs. This, in turn, would cause Lambert to suffer excruciating the pain of actual suffocation when the next drug, is given, Pancuronium Bromide. That drug completely paralyzes all of the body’s muscles yet gives the body the false appearance of sleep, for in fact, the drug has no effect on the brain, on consciousness or on awareness. Lambert would be fully conscious and feel like he was in the throes of drowning while looking to witnesses like he was calmly sleeping, for he could not move a muscle, especially not his breathing muscles. See Declaration of Mark J.S. Heath, M.D., at paragraphs 11, 15, 19, 21 (f) & (g), 29-37. 23. Failure to label the syringes containing the three drugs would also risk the error of first injecting the paralytic agent or the cardiac arrest-causing drug before the anesthesia was injected, resulting in the concealing of excruciating pain amounting to torture of Lambert during the execution process. Declaration of Dr. Heath at paragraph 45. 24. Notably, there have been serious IV access difficulties in at least two of the fourteen executions, a 14% failure rate. Declaration of Dr. Heath at paragraph 14, See also Timberlake Complaint, [Docket Entry #1] Ex. H (Command Center minutes for Bieghler 13153 execution). In addition to lack of training, further complications arise from the lack of any medically acceptable procedure set out by IDOC to insure that the
10

IV remains in the vein or that the fluids are not “infiltrating” into surrounding tissue instead of flowing through the veins. 25. Un-credentialed, unqualified, untrained, unskilled, personnel lacking the necessary knowledge are required to be responsible for determining that the IV line is properly placed in the vein. No one, much less a qualified individual, is designated to determine throughout the execution process that the IV line is not leaking or infiltrating into the surrounding tissue, but rather is bringing the lethal drugs into the vein.3 Indeed, the IV tubing is apparently fed through a hole in the wall separating the execution chamber from the concealed executioners, thus requiring communication by radio between the execution chamber and the executioners on the other side of the wall. Bieghler minutes, June 18, 1998, Timberlake Complaint, [Docket Entry #1] Ex. H; June 18, 1998, Testimony of Indiana State Prison Warden Al Parke at 24, 27, 29.
Moreover, IDOC’s protocol exacerbates the foreseeable risk of improper anesthesia administration, as they fail to articulate procedures to deal with the slippage of the catheter, or it’s leaking into surrounding tissue. No trained personnel (there is no evidence at this time that any person on the IDOC’s injection team has any training in administering anesthesia, or if there is training, what that training might be) are required to monitor the IV lines and flow of anesthesia into the veins through the obvious means of visual and tactile observation and examination. 4 Examples of other drug
3See Department of Corrections “Operation Directive” 06-26 and Department of Corrections “Operation Directive” 02-04, which establish the conditions under which the three lethal drugs are to be administered, and direct that the drugs be administered remotely, in the absence of appropriately trained personnel and with no adequate monitoring of the inmate’s condition once the procedure is underway. 4 See Declaration of Mark J.S. Heath, M.D., January 16, 2007, at 13, paragraphs E & F; 16.
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administration problems that could occur (and have occurred) in executions that could prevent the proper administration of Sodium Pentothal include, but are not limited to the following:
A. Errors in selecting the correct syringe: IDOC protocol uses two sets of seven syringes, a total of 14 syringes, a number that could make it easy to make a mistake in selecting the correct syringe. See ISP 06-26 “Operation Directive,” at p. 7. Without knowing if—or how—IDOC labels and differentiates the syringes, it is impossible to know with assurance that syringe swap (one of the most common forms of medical error) would not occur in an Indiana execution. Declaration of Dr. Heath at paragraph 45 (c).
B. Error in correctly injecting the drug into the IV line. If the syringe holding the drug is turned the wrong direction, a retrograde injection of the drug into the IV fluid bag instead of into the inmate will occur. The probability of this occurring is greatly increased in the hands of untrained, inexperienced personnel. Id. at paragraph (d).
C. IV tubing leakage. An “IV setup” consists of multiple components assembled by hand and capable of leakage under the pressure of flowing fluids. The IDOC protocol does not place a monitor to observe for or correct this error. Id. at paragraph (e).
D. Migration of the catheter. Even a properly inserted IV catheter tip may move or migrate so that it is not within the vein at the time of fluid injection. This would result in infiltration and failure to deliver the drug to the inmate’s circulation, resulting in failure to render him unconscious. Declaration of Mark J.S. Heath, M.D., January 16, 2007. paragraph (g).
12

E. Excessive pressure on the syringe plunger. Excessive pressure on the syringe plunger during injection may cause tearing, rupture, and leakage of the vein. Should this occur, there would be failure to deliver the drug to the inmate’s circulation, resulting in failure to render him unconscious. Id. at paragraph (i)
F. Improperly securing the catheter. Catheters must be secured after insertion by tape, adhesive material or suture. Even if restrained by straps, movement by the inmate could dislodge the catheter and potentially go undetected under the sheet or under gauze. The drug would not enter the inmate’s circulation, and would not render him unconscious. Id. at paragraph (j), (k), (l).
G. Failure to properly loosen or remove the tourniquet. Failure to remove the tourniquet, used to assist in insertion of the IV catheter, from the arm or leg after placement of the IV catheter will delay or inhibit delivery of the drugs to the central nervous system. This may cause a failure of the sodium pentothal to render and maintain Lambert in a state of unconsciousness.
Lack of qualified personnel present in the chamber thwarts the execution personnel from taking standard measures to ensure that the anesthesia is flowing into the inmate, and that he is properly anesthetized prior to the administration of the paralytic agent, Pancuronium Bromide, and the heart-stopping drug, Potassium Chloride. Id. at paragraph 50-53. 26. No provisions exist in the IDOC protocol for a properly trained and credentialed individual to examine the inmate after the administration of Sodium Pentothal—and prior to and during the administration of Pancuronium Bromide and Potassium Chloride—to verify that the inmate is, and remains, completely unconscious.
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27. The above-stated problem is greatly aggravated by the use of the paralytic agent, Pancuronium Bromide, because of the appearance of sleep and calm that it may falsely present if the inmate is not, or does not remain, completely unconscious. Id. The simple fact is that pancuronium bromide serves no purpose in the execution protocol other than to shield the witnesses to the execution from the inmate’s twitching and writhing that would accompany death by potassium chloride even if adequate sedation were to be achieved. 28. In Indiana, and elsewhere in the United States, general anesthesia such as Sodium Pentothal, is administered by physicians who have completed residency training in the specialty of Anesthesiology, and by nurses who have undergone the requisite training to become Certified Registered Nurse Anesthetists (CRNAs). Declaration of Dr. Heath, at paragraph 49-50. Physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general anesthesia. These universal credentialed individuals are absent from the IDOC protocols, and their replacement with various prison personnel lacking in such credentials underlie the multiplicity of foreseeable events that put Lambert at an unreasonable risk of suffering an excruciatingly painful execution. The establishment of a surgical plane of anesthesia is a complex task which can only reliably be performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia. “If the individual providing anesthesia care is inadequately trained or experienced, the risk of complications is enormously increased...’the only way to assure [a surgical plane of anesthesia] would be to have an anesthesiologist prepare and administer the drugs, carefully observe the inmate and all pertinent monitors, and finally to integrate all this
14

information.’ “ Orin F. Guidry, M.D., Message from the President: Observations Regarding Lethal Injection (June 30, 2006). There is no evidence that any person on the IDOC injection team has any training in administering anesthesia. 29. In addition, several prisoners executed under Indiana’s lethal injection protocol had thiopental blood levels at their death below 20 mg/mL: (1) Joseph Trueblood executed June 13, 2003 thiopental level was 14 mg/mL; and, (2)Gregory Johnson executed May 26, 2005 thiopental level was 19 mg/mL. These levels are below those necessary to render them unconscious. Trueblood and Johnson were therefore likely conscious at the time the lethal drugs were administered and caused death. See Timberlake Complaint [Docket Entry #1], #6 Exhibit F South Bend Medical, # 7 Exhibit G Report to St. Anthony's Hospital. 30. Kevin Hough, who was executed under Indiana lethal injection protocol, was administered 25 ml of sodium pentothal, 100 ml of pancuronium bromide, and 70 ml of potassium chloride to bring about his death on May 2, 2003. See Timberlake Complaint, [Docket Entry #1] Exhibit “B” - LaPorte County Coroner Letter Re: Kevin Hough Execution on May 2, 2003. However, there is no record of the concentration of the drugs used in Hough’s execution. 31. During the execution of Marvin Bieghler on January 27, 2006, The “Command Center” minutes report difficulty maintaining flow in the IV’s that had been inserted into Mr. Bieghler’s veins. Unlike “past executions,” flows were not maintained in both of Mr. Bieghler’s arms. Despite this failure to follow the procedure on past executions and the lack of any written standards to guide the discretion of personnel when this contingency arises, Mr. Bieghler’s execution proceeded. The minutes report that Mr. Bieghler was in
15

“a state of shock” at the time lethal chemicals were injected. The minutes include medical opinions of unknown origin about Mr. Bieghler’s physical condition and the effect Bieghler’s ingestion of Valium on the lethal injection process. Lethal chemicals were injected into Mr. Bieghler without any determination being made whether he was adequately sedated. The minutes report that the Command Center was “unclear what the [I.V. team] were exactly doing” during the execution. See Timberlake Complaint, [Docket Entry #1] Ex. H, Command Center Minutes of Marvin Bieghler Execution.
VI CLAIM 32. Plaintiff incorporates paragraphs 1-31 by reference. 33. J. David Donahue, Ed Buss and Unknown Executioners are aware of the potential for an excruciating death created by the use of potassium chloride and the risk of conscious asphyxiation created by the use of pancuronium bromide, which makes it necessary to induce and maintain a deep plane of anesthesia. The circumstances and environment under which anesthesia is to be induced and maintained in an Indiana execution create, needlessly, a significant risk that Lambert will suffer in the extreme. The procedures and protocol selected by the IDOC as reflected in IDOC Directive 06-26, will subject Lambert to an increased an unnecessary risk of experiencing excruciating pain in the course of execution, in violation of the Eighth Amendment through the Fourteenth Amendment. 34. J. David Donahue, Ed Buss and Unknown Executioners are aware that the Indiana lethal injection procedures concerning storage, mixing, dosage calculation, preparation and labeling of the lethal injection drugs together with the execution personnel’s lack of proper and necessary training, experience or expertise create a substantial and
16

unnecessary risk that Lambert will be fully conscious and in agonizing pain for the duration of the execution process, in violation of the Eighth Amendment through the Fourteenth Amendment. 35. J. David Donahue, Ed Buss and Unknown Executioners are aware that the result of using the IDOC required chemical, pancuronium bromide, creates a substantial and unnecessary risk that Lambert will be conscious, or become conscious, during the execution process, which would be impossible to determine without medically acceptable monitoring once the paralytic agent is injected, and would in that event cause Lambert to suffer excruciating pain, in violation of the Eighth Amendment through the Fourteenth Amendment, while appearing to suffer no pain at all. 36. J. David Donahue, Ed Buss and Unknown Executioners are aware that the Indiana Department of Corrections protocol for execution does not include the assistance of a person trained in the field of clinical anesthesiology, and consequently an unconscious and insensate state in Lambert at the time of his execution cannot be guaranteed. To have Lambert, conscious and feeling, but unable to show outwardly, the strangulating effects of asphyxia from pancuronium bromide, and the extreme generalized burning sensation, massive muscle cramping, and finally cardiac arrest from potassium chloride—is cruel and unusual punishment, in violation of the Eighth Amendment through the Fourteenth Amendment. 37. J. David Donahue, Ed Buss and Unknown Executioners are aware that the IDOC protocol and procedures for execution exacerbate the foreseeable risks of improper administration of sodium pentothal, as they fail to articulate procedures to deal with slippage of the IV catheter, or its leaking into surrounding tissue, thus creating an a
17

substantial and unnecessary risk that Lambert will be subject to cruel and unusual punishment, in violation of the Eighth Amendment through the Fourteenth Amendment. 38. J. David Donahue, Ed Buss and Unknown Executioners are aware that the IDOC protocol and procedures together with the lack of adequately trained, appropriately experienced and credentialed personnel at execution exacerbate the foreseeable risk of numerous drug administration errors that could prevent the proper administration of sodium pentothal, including but not limited to errors in selecting the correct syringe among 14 syringes; errors in correctly injecting the drugs into the IV tubing, IV tubing leakage migration of the IV catheter, excessive pressure on the plunger, improper securing of the catheter, failure to properly loosen or remove the tourniquet, which individually or in combination create a substantial and unnecessary risk that Lambert will be fully conscious and in agonizing pain for the duration of the execution process, in violation of the Eighth Amendment through the Fourteenth Amendment. 39. J. David Donahue, Ed Buss and Unknown Executioners are aware that the IDOC’s procedures and protocol foster these above-stated problems and fail to provide adequate mechanisms for recognizing these problems, and do so needlessly and without legitimate reason, resulting in a substantial and unnecessary risk that Lambert will be fully conscious and in agonizing pain for the duration of the execution process, in violation of the Eighth Amendment through the Fourteenth Amendment. 40. J. David Donahue, Ed Buss and Unknown Executioners are aware that in Indiana, and elsewhere in the United States, general anesthesia is administered by physicians who have completed residency training in the specialty of Anesthesiology, and by nurses who have undergone the requisite training to become Certified Registered Nurse Anesthetists
18

(CRNAs). Physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general anesthesia. These universal credentialed individuals are absent from the IDOC protocols, there is no evidence that any person on the IDOC injection team has any training in administering anesthesia, and their replacement with various prison personnel lacking in such credentials underlie the multiplicity of foreseeable events that put Lambert at an unreasonable risk of suffering an excruciatingly painful execution, in violation of the Eighth Amendment through the Fourteenth Amendment. 41. J. David Donahue, Ed Buss and Unknown Executioners are aware that the IDOC execution protocol and procedures prevent effective monitoring of Lambert’s condition or whether he is anesthetized and unconscious. Lack of any qualified personnel present in the chamber during execution thwarts execution personnel from taking standard and necessary measures to reasonably ensure that the sodium pentothal is properly flowing into the Lambert and that he is properly anesthetized prior to and during the administration of pancuronium bromide and potassium chloride, and to ensure the continued administration of a drug that will assure a surgical depth of anesthesia creates a substantial, unreasonable and unnecessary risk that Lambert will be fully conscious and in agonizing pain for the duration of the execution process, in violation of the Eighth Amendment through the Fourteenth Amendment. 42. J. David Donahue, Ed Buss and Unknown Executioners are acting under color of Indiana law in administering to Plaintiff-Intervenor Lambert chemicals that will cause unnecessary pain in the execution of death, thereby depriving Lambert of his rights under
19

the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, in violation of 42 U.S.C. sec. 1983.
VII. PRAYER FOR RELIEF 43. Plaintiff-Intervenor, Michael Allen Lambert, requests that this Court grant a preliminary injunction barring defendants from executing him in the manner they currently intend or in a manner that violates his rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, in violation of 42 U.S.C. sec. 1983. 44. Plaintiff-Intervenor, Michael Allen Lambert, requests that this Court grant reasonable attorneys’ fees pursuant to 42 U.S.C. sec. 1988 and the laws of the United States, as well as for costs of suit and any further relief that this Court deems just and proper.

/s/Alan M. Freedman Alan M. Freedman
Alan M. Freedman Carol R. Heise Midwest Center for Justice 831 Main Street Evanston, IL 60202 Phone: 847/492-1563 Fax: 847/492-1861 Email: fbpc@aol.com
Laurence E. Komp P.O. Box 1785 Manchester, MO 63011 (636) 207-7330

Respectfully submitted, /s/Carol R. Heise Carol R. Heise
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(fax) (636) 207-7351 lekomp@swbell.net
21

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE

)

)

Plaintiff,

)

)

MICHAEL ALLEN LAMBERT,

)

DAVID LEON WOODS,

)

)

Intervenor Plaintiffs,

)

)

v.

)

)

J. DAVID DONAHUE, Commissioner )

Indiana Department of Corrections

)

)

ED BUSS, Superintendent,

)

Indiana State Prison,

)

)

and

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendant.

)

CAUSE NO. 1:06-cv-1859-RLY-WTL

CERTIFICATE OF SERVICE

I certify that the foregoing document was filed electronically and served upon Thomas D. Quigley, Stephen R. Creason, Betsy M. Isenberg, Linda M. Wagoner, William Van Der Pol, Jr., Brent Westerfeld, Lorinda Meier Youngcourt and Richard A. Waples through the Court’s CM/ECF system on April 17, 2007.

Alan M. Freedman Carol R. Heise Midwest Center for Justice 831 Main Street Evanston, IL 60202 Phone: 847/492-1563 Fax: 847/492-1861 Email: fbpc@aol.com

/s/Alan M. Freedman Alan M. Freedman

22

Laurence E. Komp P.O. Box 1785 Manchester, MO 63011 (636) 207-7330 (fax) (636) 207-7351 lekomp@swbell.net
23

 
 EXECUTION DATE INFORMATION: MAY 4TH, 2007, 12:01am

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE, Plaintiff,
MICHAEL ALLEN LAMBERT DAVID LEON WOODS
Intervenor Plaintiffs v.
J. DAVID DONAHUE, Commissioner Indiana Departme of Corrections

No. 1:06-cv-1859-RLY-WTL
DEATH SENTENCED PROSPECTIVE INTERVENER DAVID LEON WOODS EXECUTION DATE: MAY 4TH, 2007, 12:01 A.M.

ED BUSS, Superintendent Indiana State Prison,

and

UNKNOWN EXECUTIONERS

Defendant.

STATEMENT OF CLAIM OF INTERVENING PLAINTIFF DAVID LEON WOODS
I Nature of Action
1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations
of the right of plaintiff-intervenor, DAVID LEON WOODS, to be free from cruel and unusual
punishment under the Eighth and Fourteenth Amendments to the United States Constitution.
Plaintiff seeks equitable and injunctive relief.
II.

1

Plaintff 2. David Leon Woods is a United States Citizen and resident of the State of Indiana. He is currently facing an order that he be executed by Lethal Injection May 4, 2007 after 12:01 a.m. and before the hour of sunrise that date. The execution is to be carried out by the Indiana Department of Corrections, Indiana State Prison in Michigan City, Indiana.
III Defendants 3. Defendant J. David Donahue is the Commissioner of the Indiana Department of Corrections (DOC) or contracted by the Indiana State Prison to make preparations for, and to carry out, the execution of Plaintiff. They include, but are not limited to, correctional officers, physicians, nurses, nursing assistants and “executioners.” Plaintiff does not know their identities and it is Plaintiff’s understanding that Defendants will not reveal the identities of these persons.
IV. Jurisdiction and Venue 4. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question,) 1343 (civil rights violation), 2201 (declaratory relief) and 2202 (further relief). This action arises under the Eighth and fourteen th Amendments to the United States Constitution and under 42 U.S.C. § 1983. 5. Venue in this Court is proper under 28 U.S.C. § 1391.
V. Facts. 6. On March 28th, 1985, Woods was convicted and sentenced to death in the Boone Superior Court 1, located in Lebanon, Indiana.
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7. Following various processes of appeals, post-conviction and habeas activity, the Indiana Supreme Court, on March 26, 2007, ordered that David Leon Woods suffer death by lethal injection on March 4, 2007 at 12:01 a.m. and before the hour before sunrise that date. Defendants are responsible by carrying out Woods’ execution. 7. Under Indiana law, death sentences shall be carried out by “intravenous injection of a lethal substance or substances. . . in a quantity sufficient to cause death.” Ind. Code § 35-38-61(a). The statute prescribes no specific drugs, dosages, drug combinations, or the manner of intravenous line access to be used in the execution process; now does the statute proscribe any certification, training or licensure required of those who participate in the execution. All details of the execution are left tot eh Indiana Department of Corrections to implement through “rules under Ind. Code. § 4-22-2.” Ind. Code § 35-38-6-1(d). 8. Plainfiff reasonably believes the DOC will execute him by poisoning him with a lethal combination of three chemical substances: Sodium pentothal (Thiopental), a short-acting barbiturate; Pancuronium Bromide (Pavulon), a cureare-dervied agent which paralyzes all skeletal or voluntary muscles, but which has no effect on awareness, cognition or sensation; and Potassium Chloride, an extraordinarily painful chemical which activates the nerve fibers lining the inmate’s veins and which can interfere with the rhythmic contractions of the heart and cause cardiac arrest. See Timberlake Complaint (Doc #1) Exhbit B (LaPorte County Coroner Letter re: Kevin Hough Execution on May 2, 2003 and Doc #13, (Defendant’s Response to Discovery, at paragraph 3. 9. Woods believes and understands that the protocol for his execution has not been adopted.. DOC Directive ISP 06-26 (January 4, 2007)(Doc. #32, Attachment #1) is the most recent protocol, but no executions have been carried out pursuant to its dictates. Doc. 63, Part III
3

contains the changes expected to be made to that protocol. Directive 06-26and the predecessor directive, Indiana DOC Operation Directive 02-04,
March 18, 2003, were adopted without medical research or review to determine that a prisoner would not suffer unnecessary and wanton pain. Medically qualified persons were not involved in the adoption of either directive. The procedures were patterned after those followed in other states, including, but not limited to Illinois, Texas, Washington, Oklahoma and Louisiana. 10. Directive 06-26 does not specify the lethal chemicals to be used nor does it specify the quantity or concentration of any chemical used in the execution process. In addition, sodium pentothal should be titrated against patient requirements as governed by age, sex, and body weight.” “Thiopental Sodium: Clinical Pharmacology”, RxList Drug Database (Nov. 26, 2005) http://www.rxlist.com/cgi/-generic3/thiopental_ids.htm. Persons who are anxious, such as one who is about to be executed, may require a higher dosage of sodium pentothal than the average pre-medicated surgical patient. Leonidas G. Koniaris et al, “Inadequate Anesthesia in Lethal Injection for Execution”, www.thelancet.com, vol. 365 (April 16, 2005) 1412. 11. Directive 06-26 contains no standardized time for administration of each chemical nor are there any guidelines for determining when each chemical is to be injected. There is no standardized procedure ensuring the anesthetic agent is properly flowing into the prisoner. And, there is no standardized procedures for ensuring that the prisoner is properly sedated before lethal chemicals are injected. 12. Directive 06-26 does not establish minimum qualifications or the expertise required of personnel who perform the tasks in the lethal injection process, other than requiring a physician to perform a “cut-down” procedure if an adequate vein cannot be located. See Timberlake
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[Docket Entry #32] Submission of Protocol, filed by Defendant. (Attachments: # 2 Appendix O to Operation Directive ISP 06-26) [“Draft Procedure for Venus Cut Down].
There is no procedure specified if adequate flow in the IV cannot be maintained. Directive 06-26 contains no definition of what an “adequate vein” is nor does it specify any requirements regarding the flow in the IV. 13. The only personnel selection guideline contained in Directive 06-26 is a requirement that personnel be screened to “assess their emotional stability and their willingness/ability to handle the stress of assisting with the execution.” The protocol does not require that the injection team members be qualified in any particular way. The IV catheters are to be inserted by a team of persons whom IDOC has represented as having at some time had training or background as emergency medical technicians. See Timberlake [Docket Entry #17] Exhibit in Support re #14 Motion for Preliminary Injunction Exhibit 3 in support of motion for preliminary injunction, filed by Plaintiff. The DOC has not presented any information which shows that these persons are currently licensed or credentialed as having been adequately trained and competent to mix and prepare the lethal chemicals, place IV lines, monitor the IV lines to insure they remain properly placed, and are flowing properly. The DOC has not presented any information which shows that placement and monitoring of IV lines is currently part of any team members’ regular occupation or duties. 14. Directive 06-26 contains no guidelines—other than utilizing a physician to perform a “cut down” if the IV team cannot start an IV—upon which execution personnel can rely if required to exercise discretion during any part of the execution process. Directive 06-26 provides that the injection procedure continues until the prisoner is “presumed dead.” If the IV team is unsuccessful in placing a catheter in each of the condemned inmate’s arms, “cut-down”
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procedures will be initiated. The DOC procedures for cut-downs include a 2.5 cm incision, closing the wound with stitching, and covering the site of the IV access with a sterile dressing. This sterile dressing covers the site of the IV insertion and effectively acts to obscure visualization of the site during execution and monitoring that the IV remains properly in place. Adequate visualization is critical for assessment of IV failures like infiltration and leakage. Timberlake, [Docket Entry No. 40] Plaintiff’s Second Supplemental Response to Defendant’s Interrogatories to Plaintiff and Amendment to Witness and Exhibit List, January 16, 2007 Affidavit of Mark J. S. Heath, M.D. [hereafter “Affidavit of Dr. Heath”].
A cut down is a complex medical, if not surgical, procedure requiring equipment and skill not accounted for in Indiana’s protocol on cut down procedures. Very serious complications, including severe pain, hemorrhage, and collapse of a lung potentially leading to suffocation can result from doing an improper cut-down. Cut down is an outdated, unconscionable method of achieving central venous access. Its use as a backup method of achieving IV access would defy contemporary medical standards and be a violation of any modern standard of decency. Since it has been virtually completely supplanted by the “percutaneous” technique, which is less invasive, less painful, less mutilating, faster, safer, and less expensive, its use would be a gratuitous infliction of pain and mutilation to the condemned prisoner. Declaration of Dr. Heath at paragraphs 55-56. This is readily apparent from the extraordinary time it took for someone to perform a cut-down during Tommie Smith’s execution,1 See Suzanne McBride, Problem with Vein Delays Execution, INDIANAPOLIS
1 The execution team first tried to insert an IV into Tommie Smith’s arms. That failed, and the Warden ordered a physician to do a cut down. The physician instead attempted to insert an IV into Smith’s neck. He failed to accomplish this, and instead did the cut down on Smith’s ankle. See Testimony of Warden Al Parke, June 18, 1998 at 47-57.
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NEWS, July 18, 1996, at 1, and the post-execution photographs of Tommie Smith, DOC. No. 4330. See Timberlake, Docket Entry #24, Exhibit in Support re 14 Motion for Preliminary Injunction Exhibit 9 in support of Motion for Preliminary Injunction, filed by Plaintiff.
As to any other problems, complications or unforeseen events involving the mixing and preparation of chemicals, establishing and maintaining a properly placed and flowing IV line, the execution team has no IDOC guidelines to rely upon if required to exercise discretion during any part of the execution process. 15. Sodium pentothal is a short-acting barbiturate which is ordinarily used to render a surgical patient unconscious for mere minutes, only in the induction phase of anesthesia, specifically so that the patient may re-awaken and breathe on their own power if any complications arise in inserting a breathing tube pre-surgery. Because of this brief duration, it is highly unlikely that sodium pentothal will provide a sedative effect through the entire execution process. Due to the chemical combination used in the Indiana execution process, there is also a probability that the sedative effect of the sodium pentothal will be neutralized instantly by the second chemical, Pavulon (Pancuronium Bromide). 16. If Woods is not adequately sedated, he will suffer excruciating pain as a result of the asphyxiation caused by the Pavulon while he remains conscious yet unable to move a muscle, especially not breathing muscles, and suffers agonizing internal venous and organ burning prior to and during thee cardiac arrest caused by the Potassium Chloride. 17. To the extent that the extremely short acting effects of the first chemical, Sodium Pentothal, renders the plaintiff-intervenor conscious, and/or to the extent that Sodium Pentothal is neutralized by the second chemical, Pavulon, this paralytic chemical [Pavulon] will serve only to mask the agonizing pain and strangulation of Woods. Regardless of the level of pain or the
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sensation of strangulation, Pavulon makes it impossible to move a single muscle, thus falsely
creating the appearance of sleep, for in fact, the drug has no effect on the brain, on consciousness
or on awareness.
18. The American Veterinary Medical Association condemns the use of pancuronium
bromide in euthanizing dogs and cats due to the risk that the animal might not be properly
sedated by the barbiturate sodium pentothal, and therefore would be conscious of the severe pain
of asphyxiation while being suffocated by this neuromuscular blocking agent. Indeed, its use is
prohibited in animal euthanasia in nineteen states. 1 Although this is the standard of care set by
law in many states for the euthanasia of dogs and cats by sodium pentothal and potassium
injection, the DOC protocol does not eliminate pancuronium bromide, or in using it, provide for
any credible verification that the inmate is and remains unconscious. Declaration of Dr. Heath,
at paragraph 28. See also., Rev. Code of the Consolidated City and County of
Indianapolis/Marion, Indiana, Ch. 531 (Animals), Article VI (Euthanasia of Animals), Sec. 531-
601(a) (“The animal care and control division, other animal shelters, and/or public animal
facilities which destroy animals in the city, shall use only such methods, materials and standards
1 The states that expressly forbid the use of neuromuscular blocking agents to euthanize animals are: Florida, Fla. Stat. §§ 828.058 and 828.065; Georgia, Ga. Code Ann. § 4-115.1; Maine, Me. Rev. Stat. Ann., tit. 17, § 1044; Maryland, Md. Code Ann., Criminal Law, § 10-611; Massachusetts, Mass. Gen. Laws ch. 140 § 151A; New Jersey, N.J. Stat. Ann. 4:22-19.3; New York, N.Y. Agric. & Mkts Law § 374; Oklahoma, Okla. Stat. tit. 4, § 501; and Tennessee, Tenn. Code Ann. § 44-17-303. The states that mandate the use of particular methods for animal euthanasia, most often the use of the sedative sodium pentobarbitol, and therefore implicitly ban the use of neuromuscular blocking agents are: Connecticut, Conn. Gen. Stat. § 22-344a; Delaware, Del. Code Ann. tit. 3, § 8001; Illinois, 510 Ill. Comp. Stat. 70/2.09; Kansas, Kan. Stat. Ann. § 47-1718(a); Kentucky, Ky. Rev. Stat. Ann. § 321.181(17) and Ky. Admin. Regs. 16:090 section 5(1); Louisiana, La. Rev. Stat. Ann. § 3:2465; Missouri, Mo. Rev. Stat. § 578.005(7); Rhode Island, R.I. Gen. Laws § 4-1-34; and South Carolina; S.C. Code Ann. § 47-3-420; Texas, Tex. Health & Safety Code Ann. § 821.052(a).
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as approved by the American Veterinary Medical Association for said purpose. In no event shall an animal be euthanized inhumanely.”); Id. IDOC’s procedures do not even comply with the minimal guidelines set forth by the American Veterinary Medical Association for the euthanasia of animals. Declaration of Dr. Heath, at paragraph 40. . 19. There is no medical dispute that intravenous injection of the third lethal chemical, concentrated potassium chloride solution, required to be administered by the Indiana Department of Corrections, causes excruciating pain. The vessel walls of veins are richly supplied with sensory nerve fibers that are highly sensitive to potassium ions. There exist other available, equally effective chemicals which can be used to stop the heart and which are essentially painless medications for stopping the heart. [Declaration of Mark Heath, M.D., at 6. 20. The statute authorizing lethal injection in Indiana does not require the use of potassium chloride to cause cardiac arrest. 21. The risk of inflicting severe and unnecessary pain and suffering in the lethal injection process is particularly grave in the execution of Plaintiff-Intervenor Woods. 22. Untrained, unskilled, personnel lacking the necessary knowledge are required to be responsible for the storage, mixing, dosage calculation and preparation of the three drugs to be used to cause Woods death. Errors in the storage, mixing and preparation of these drugs—especially Sodium Pentothal—will likely result in: inadequate anesthesia to Woods, resulting in his remaining conscious during the administration of the subsequent lethal drugs. This, in turn, would cause Woods to suffer excruciating the pain of actual suffocation when the next drug, is given, Pancuronium Bromide. That drug completely paralyzes all of the body’s muscles yet gives the body the false appearance of sleep, for in fact, the drug has no effect on the brain, on consciousness or on awareness. Woods would be fully conscious and feel like he was
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in the throes of drowning while looking to witnesses like he was calmly sleeping, for he could
not move a muscle, especially not his breathing muscles. See Declaration of Mark J.S. Heath,
M.D., at paragraphs 11, 15, 19, 21 (f) & (g), 29-37.
23. Failure to label the syringes containing the three drugs would also risk the error of first
injecting the paralytic agent or the cardiac arrest-causing drug before the anesthesia was injected,
resulting in the concealing of excruciating pain amounting to torture of Woods during the
execution process. Declaration of Dr. Heath at paragraph 45. 24. Notably, there have been serious IV access difficulties in at least two1 of the fourteen
executions, a 14% failure rate. Declaration of Dr. Heath at paragraph 14, See also Timberlake
Complaint, [Docket Entry #1] Ex. H (Command Center minutes for Bieghler 13153 execution).
In addition to lack of training, further complications arise from the lack of any medically
acceptable procedure set out by IDOC to insure that the IV remains in the vein or that the fluids
are not “infiltrating” into surrounding tissue instead of flowing through the veins.
25. Un-credentialed, unqualified, untrained, unskilled, personnel lacking the necessary
knowledge are required to be responsible for determining that the IV line is properly placed in
the vein. No one, much less a qualified individual, is designated to determine throughout the
execution process that the IV line is not leaking or infiltrating into the surrounding tissue, but rather is bringing the lethal drugs into the vein.2 Indeed, the IV tubing is apparently fed through
1Woods’ review of documents provided suggests problems in Smith, Fleenor, Bivens, Lowry,and Bieghler; however, the sparse information provided fails to reflect number of attempts, remedy or alternative actions.
2See Department of Corrections “Operation Directive” 06-26 and Department of Corrections “Operation Directive” 02-04, which establish the conditions under which the three lethal drugs are to be administered, and direct that the drugs be administered remotely, in the absence of appropriately trained personnel and with no adequate monitoring of the inmate’s condition once the procedure is underway.
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a hole in the wall separating the execution chamber from the concealed executioners, thus requiring communication by radio between the execution chamber and the executioners on the other side of the wall. Bieghler minutes, June 18, 1998, Timberlake Complaint, [Docket Entry #1] Ex. H; June 18, 1998, Testimony of Indiana State Prison Warden Al Parke at 24, 27, 29.
Moreover, DOC’s protocol exacerbates the foreseeable risk of improper anesthesia administration, as they fail to articulate procedures to deal with the slippage of the catheter, or it’s leaking into surrounding tissue. No trained personnel (there is no evidence at this time that any person on the DOC’s injection team has any training in administering anesthesia, or if there is training, what that training might be) are required to monitor the IV lines and flow of anesthesia into the veins through the obvious means of visual and tactile observation and examination. 1 Examples of other drug administration problems that could occur (and have occurred) in executions that could prevent the proper administration of Sodium Pentothal include, but are not limited to the following:
A. Errors in selecting the correct syringe: DOC protocol uses two sets of seven syringes, a total of 14 syringes, a number that could make it easy to make a mistake in selecting the correct syringe. See ISP 06-26 “Operation Directive,” at p. 7. Without knowing if—or how—DOC labels and differentiates the syringes, it is impossible to know with assurance that syringe swap (one of the most common forms of medical error) would not occur in an Indiana execution. Declaration of Dr. Heath at paragraph 45 (c).
B. Error in correctly injecting the drug into the IV line. If the syringe holding the drug is turned the wrong direction, a retrograde injection of the drug into the IV fluid bag instead
1 See Declaration of Mark J.S. Heath, M.D., January 16, 2007, at 13, paragraphs E & F; 16.
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of into the inmate will occur. The probability of this occurring is greatly increased in the hands of untrained, inexperienced personnel. Id. at paragraph (d).
C. IV tubing leakage. An “IV setup” consists of multiple components assembled by hand and capable of leakage under the pressure of flowing fluids. The DOC protocol does not place a monitor to observe for or correct this error. Id. at paragraph (e).
D. Migration of the catheter. Even a properly inserted IV catheter tip may move or migrate so that it is not within the vein at the time of fluid injection. This would result in infiltration and failure to deliver the drug to the inmate’s circulation, resulting in failure to render him unconscious. Declaration of Mark J.S. Heath, M.D., January 16, 2007. paragraph (g).
E. Excessive pressure on the syringe plunger. Excessive pressure on the syringe plunger during injection may cause tearing, rupture, and leakage of the vein. Should this occur, there would be failure to deliver the drug to the inmate’s circulation, resulting in failure to render him unconscious. Id. at paragraph (i)
F. Improperly securing the catheter. Catheters must be secured after insertion by tape, adhesive material or suture. Even if restrained by straps, movement by the inmate could dislodge the catheter and potentially go undetected under the sheet or under gauze. The drug would not enter the inmate’s circulation, and would not render him unconscious. Id. at paragraph (j), (k), (l).
G. Failure to properly loosen or remove the tourniquet. Failure to remove the tourniquet, used to assist in insertion of the IV catheter, from the arm or leg after placement of the IV catheter will delay or inhibit delivery of the drugs to the central nervous system. This may cause a failure of the sodium pentothal to render and maintain Woods in a state of unconsciousness.
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Lack of qualified personnel present in the chamber thwarts the execution personnel from taking standard measures to ensure that the anesthesia is flowing into the inmate, and that he is properly anesthetized prior to the administration of the paralytic agent, Pancuronium Bromide, and the heart-stopping drug, Potassium Chloride. Id. at paragraph 50-53. 26. No provisions exist in the DOC protocol for a properly trained and credentialed individual to examine the inmate after the administration of Sodium Pentothal—and prior to and during the administration of Pancuronium Bromide and Potassium Chloride—to verify that the inmate is, and remains, completely unconscious. 27. The above-stated problem is greatly aggravated by the use of the paralytic agent, Pancuronium Bromide, because of the appearance of sleep and calm that it may falsely present if the inmate is not, or does not remain, completely unconscious. Id. The simple fact is that pancuronium bromide serves no purpose in the execution protocol other than to shield the witnesses to the execution from the inmate’s twitching and writhing that would accompany death by potassium chloride even if adequate sedation were to be achieved. 28. In Indiana, and elsewhere in the United States, general anesthesia such as Sodium Pentothal, is administered by physicians who have completed residency training in the specialty of Anesthesiology, and by nurses who have undergone the requisite training to become Certified Registered Nurse Anesthetists (CRNAs). Declaration of Dr. Heath, at paragraph 49-50. Physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general anesthesia. These universal credentialed individuals are absent from the DOC protocols, and their replacement with various prison personnel lacking in such credentials underlie the multiplicity of foreseeable events that put Woods at an unreasonable risk of suffering an excruciatingly painful execution. The
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establishment of a surgical plane of anesthesia is a complex task which can only reliably be performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia. “If the individual providing anesthesia care is inadequately trained or experienced, the risk of complications is enormously increased...’the only way to assure [a surgical plane of anesthesia] would be to have an anesthesiologist prepare and administer the drugs, carefully observe the inmate and all pertinent monitors, and finally to integrate all this information.’ “ Orin F. Guidry, M.D., Message from the President: Observations Regarding Lethal Injection (June 30, 2006). There is no evidence that any person on the DOC injection team has any training in administering anesthesia. 29. In addition, several prisoners executed under Indiana’s lethal injection protocol had thiopental blood levels at their death below 20 mg/mL: (1) Joseph Trueblood’s ( executed June 13, 2003) thiopental level was 14 mg/mL; and, (2) Gregory Johnson’s (executed May 26, 2005) thiopental level was 19 mg/mL. These levels are below those necessary to render them unconscious. Trueblood and Johnson were therefore likely conscious at the time the lethal drugs were administered and caused death. See Timberlake Complaint [Docket Entry #1], #6 Exhibit F South Bend Medical, # 7 Exhibit G Report to St. Anthony's Hospital. 30. Kevin Hough, who was executed under Indiana lethal injection protocol, was administered 25 ml of sodium pentothal, 100 ml of pancuronium bromide, and 70 ml of potassium chloride to bring about his death on May 2, 2003. See Timberlake Complaint, [Docket Entry #1] Exhibit “B” - LaPorte County Coroner Letter Re: Kevin Hough Execution on May 2, 2003. However, there is no record of the concentration of the drugs used in Hough’s execution. 31. During the execution of Marvin Bieghler on January 27, 2006, The “Command Center” minutes report difficulty maintaining flow in the IV’s that had been inserted into Mr. Bieghler’s
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veins. Unlike “past executions,” flows were not maintained in both of Mr. Bieghler’s arms. Despite this failure to follow the procedure on past executions and the lack of any written standards to guide the discretion of personnel when this contingency arises, Mr. Bieghler’s execution proceeded. The minutes report that Mr. Bieghler was in “a state of shock” at the time lethal chemicals were injected. The minutes include medical opinions of unknown origin about Mr. Bieghler’s physical condition and the effect Bieghler’s ingestion of Valium on the lethal injection process. Lethal chemicals were injected into Mr. Bieghler without any determination being made whether he was adequately sedated. The minutes report that the Command Center was “unclear what the [I.V. team] were exactly doing” during the execution. See Timberlake Complaint, [Docket Entry #1] Ex. H, Command Center Minutes of Marvin Bieghler Execution.
VI CLAIM 32. Plaintiff incorporates paragraphs 1-31 by reference. 33. J. David Donahue, Ed Buss and Unknown Executioners are aware of the potential for an excruciating death created by the use of potassium chloride and the risk of conscious asphyxiation created by the use of pancuronium bromide, which makes it necessary to induce and maintain a deep plane of anesthesia. The circumstances and environment under which anesthesia is to be induced and maintained in an Indiana execution create, needlessly, a significant risk that Lambert will suffer in the extreme. The procedures and protocol selected by the DOC as reflected in DOC Directive 06-26, will subject Woods to an increased an unnecessary risk of experiencing excruciating pain in the course of execution, in violation of the Eighth Amendment through the Fourteenth Amendment. 34. J. David Donahue, Ed Buss and Unknown Executioners are aware that the Indiana lethal injection procedures concerning storage, mixing, dosage calculation, preparation and labeling of 15

the lethal injection drugs together with the execution personnel’s lack of proper and necessary training, experience or expertise create a substantial and unnecessary risk that Woods will be fully conscious and in agonizing pain for the duration of the execution process, in violation of the Eighth Amendment through the Fourteenth Amendment. 35. J. David Donahue, Ed Buss and Unknown Executioners are aware that the result of using the DOC required chemical, pancuronium bromide, creates a substantial and unnecessary risk that Lambert will be conscious, or become conscious, during the execution process, which would be impossible to determine without medically acceptable monitoring once the paralytic agent is injected, and would in that event cause Woods to suffer excruciating pain, in violation of the Eighth Amendment through the Fourteenth Amendment, while appearing to suffer no pain at all. 36. J. David Donahue, Ed Buss and Unknown Executioners are aware that the Indiana Department of Corrections protocol for execution does not include the assistance of a person trained in the field of clinical anesthesiology, and consequently an unconscious and insensate state in Woods at the time of his execution cannot be guaranteed. To have Woods, conscious and feeling, but unable to show outwardly, the strangulating effects of asphyxia from pancuronium bromide, and the extreme generalized burning sensation, massive muscle cramping, and finally cardiac arrest from potassium chloride—is cruel and unusual punishment, in violation of the Eighth Amendment through the Fourteenth Amendment. 37. J. David Donahue, Ed Buss and Unknown Executioners are aware that the IDOC protocol and procedures for execution exacerbate the foreseeable risks of improper administration of sodium pentothal, as they fail to articulate procedures to deal with slippage of the IV catheter, or its leaking into surrounding tissue, thus creating an a substantial and unnecessary risk that
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Woods will be subject to cruel and unusual punishment, in violation of the Eighth Amendment through the Fourteenth Amendment. 38. J. David Donahue, Ed Buss and Unknown Executioners are aware that the IDOC protocol and procedures together with the lack of adequately trained, appropriately experienced and credentialed personnel at execution exacerbate the foreseeable risk of numerous drug administration errors that could prevent the proper administration of sodium pentothal, including but not limited to errors in selecting the correct syringe among 14 syringes; errors in correctly injecting the drugs into the IV tubing, IV tubing leakage migration of the IV catheter, excessive pressure on the plunger, improper securing of the catheter, failure to properly loosen or remove the tourniquet, which individually or in combination create a substantial and unnecessary risk that Woods will be fully conscious and in agonizing pain for the duration of the execution process, in violation of the Eighth Amendment through the Fourteenth Amendment. 39. J. David Donahue, Ed Buss and Unknown Executioners are aware that the DOC’s procedures and protocol foster these above-stated problems and fail to provide adequate mechanisms for recognizing these problems, and do so needlessly and without legitimate reason, resulting in a substantial and unnecessary risk that Woods will be fully conscious and in agonizing pain for the duration of the execution process, in violation of the Eighth Amendment through the Fourteenth Amendment. 40. J. David Donahue, Ed Buss and Unknown Executioners are aware that in Indiana, and elsewhere in the United States, general anesthesia is administered by physicians who have completed residency training in the specialty of Anesthesiology, and by nurses who have undergone the requisite training to become Certified Registered Nurse Anesthetists (CRNAs). Physicians and nurses who have not completed the requisite training to become anesthesiologists
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or CRNAs are not permitted to provide general anesthesia. These universal credentialed individuals are absent from the DOC protocols, there is no evidence that any person on the DOC injection team has any training in administering anesthesia, and their replacement with various prison personnel lacking in such credentials underlie the multiplicity of foreseeable events that put Woods at an unreasonable risk of suffering an excruciatingly painful execution, in violation of the Eighth Amendment through the Fourteenth Amendment. 41. J. David Donahue, Ed Buss and Unknown Executioners are aware that the DOC execution protocol and procedures prevent effective monitoring of Woods’s condition or whether he is anesthetized and unconscious. Lack of any qualified personnel present in the chamber during execution thwarts execution personnel from taking standard and necessary measures to reasonably ensure that the sodium pentothal is properly flowing into the Woods and that he is properly anesthetized prior to and during the administration of pancuronium bromide and potassium chloride, and to ensure the continued administration of a drug that will assure a surgical depth of anesthesia creates a substantial, unreasonable and unnecessary risk that Woods will be fully conscious and in agonizing pain for the duration of the execution process, in violation of the Eighth Amendment through the Fourteenth Amendment. 42. J. David Donahue, Ed Buss and Unknown Executioners are acting under color of Indiana law in administering to Plaintiff-Intervenor Woods chemicals that will cause unnecessary pain in the execution of death, thereby depriving Woods of his rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, in violation of 42 U.S.C. sec. 1983. 43. J. David Donahue, Ed Buss and Unknown Executioners, acting under color of Indiana law, do not maintain records adequate to determine that unnecessary, wanton and extreme suffering has not been experienced by those executed to date. The materials provided by the
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DOC subject to a restrictive stipulation, reveal virtually no information regarding the actual process of execution. The materials pertaining to Smith do not reveal the problems testified to by Al Parke. The documents provided concerning executions of the 14 men who have been executed since 1995 are uniform in that only times of events are recorded; no description of problems, resolutions and/or medical observations are included. Bieghler’s minutes (page 2278) note (at page 2279) “no problem finding vein, but couldn’t maintain flow. Flows to both arms are not necessary... Got flow in one arm and asked to go with that.” Page 2280 contained the notation that Bieghler was in a “state of shock” The report then noted:
It should also be noted that Mr. Bieghler is an admitted drug dealer and user and that this may have been a reason for the poor flow in his veins. There was no problems with using one vein. .....Since we were not viewing and only listening to the efforts of the I.V. team it became a little unclear what they were exactly doing.” Woods believes the approach taken by defendants displays more concern for the ultimate result of death than whether the execution comports with constitutional considerations. 44. The Indiana Death Penalty Assessment Team recently recommended a moratorium on executions based upon an examination 12 issues identified by the American Bar Association as central to the analysis of the fairness and accuracy of a state’s capital punishment system. While the issue of lethal injection, per se is not a part of that report, the deficiencies in the Indiana system are substantial and directly affect Woods’ eligibility for the death penalty when applied to his case. Correction of those inequities would render lethal injection, as administered by Indiana, for Woods decidedly cruel and inhumane. 45. The State of Indiana recently declared that the execution team for Woods has been “certified” by Kentucky. As of this writing, no further information has been provided by the
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State. Woods does not know who conducted the certification courses, or if there were any courses. Woods does not know what the training was, if there was training; what the certification certifies the individuals to do, who (by classification rather than name) was certified; whether the certification was the same for every team member, etc. Woods does not know who nominated or recognized the certifier as such and what standards were used to do so. Under the court’s current time constraints, Woods will likely be executed without knowledge concerning what certification was obtained and how it comports with the concerns expressed elsewhere in the statement of claims.. 46. The counsel for co-plaintiffs in this case legitimately believe the case can be presented fully “this summer.” A delay of four or five months to properly consider the issue of the constitutionality of lethal injection as administered by the State of Indiana is minuscule compared to the irreparable harm Woods will suffer if his execution is carried out without the ability of his counsel to conduct adequate discovery and/or to properly litigate the underlying claims.
VII. RELIEF REQUESTED 43. Plaintiff-Intervenor, David Leon Lambert, requests that this Court grant a preliminary injunction barring defendants from executing him in the manner they currently intend or in a manner that violates his rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, in violation of 42 U.S.C. § 1983. 44. Plaintiff-Intervenor, David Leon Woods requests that this Court grant reasonable attorneys’ fees pursuant to 42 U.S.C. §. 1988 and the laws of the United States, as well as for costs of suit and any further relief that this Court deems just and proper.
20

Respectfully submitted, /s/ Linda M. Wagoner_____ 155 S. Public Square Angola, In 46703 /s/ William Van Der Pol, Jr. P.O. Box 1799 Martinsville, In 46151
21

CERTIFICATE OF SERVICE I certify that the foregoing document was filed electronically and served upon the Attorney General DeputiesThomas D. Quigley, and Betsy M Isenberg through the Court’s CM/ECF system, and upon all counsel of record this 17th day of April, 2007.
/s/ Linda M. Wagoner.
Linda M. Wagoner Attorney for Prospective Intervener, David Leon Woods 155 S. Public Square Angola, IN 46703 (260) 624-3343 lmwagoner@mchsi.com William Van Der Pol, Jr. Attorney for Prospective Intervener, David Leon Woods P. O. Box 1799 Martinsville, IN 46151 (765) 349-0362 bvander3@insightbb.com
22

 
 EXECUTION DATE INFORMATION: MAY 4TH, 2007, 12:01am

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE, Plaintiff,
v.

No. 1:06-cv-1859-RLY-WTL

ED BUSS, Superintendent Indiana State Prison,
Defendant.

DEATH SENTENCED PROSPECTIVE
INTERVENER DAVID LEON WOODS EXECUTION DATE: MAY 4TH, 2007,
12:01 A.M.

APPLICATION FOR PRELIMINARY INJUNCTION
1.
Prospective intervener, David Leon Woods, is under a sentence of death. On March 26 th,
2007, the Indiana Supreme Court ordered Woods’ execution to take place on May 4th, 2007. Woods
seeks preliminary injunctive relief to prevent Defendants from executing him by their proposed
means of lethal inj ection pending the resolution of this action. W oods alleges that the Indiana
Department of Correction’s lethal injection protocol, as described in both Operation Directive ISP 06-261, which is attached as Exhibit 1, and Opera tion Directive ISP 02-04, which is a ttached as
Exhibit 2, and whatever Operation Directive ISPmay approve concerning specifically the execution
of Woods, constitutes cruel and unusual punishm ent in violation of the Eighth and Fourteenth

1
According to Defendant’s Response to Discovery filed January 8 th, 2007, Exhibit 3, Operation Directive ISP 02-04 is currently in place. Opertaion Directive ISP 06-26 is “a revised death penalty protocol” which has been “very recently subm itted for approval by the adm inistration of the Department of Correction but has not yet been approved.” Exhibit 3, paragraphs 2 & 3.
1

Amendments because it creates a substantial and unnecessary risk that W oods will be fully conscious and in agonizing pain for the duration of the execution process.
2.
This application for a prelim inary injunction is m ade pursuant to Federal Rul e of Civil Procedure 65, and W oods is entitled to the relief he seeks under Eighth Am endment precedent. Woods will sustain irreparable harm if injunctive relief is not granted preventing the Defendant having the (1) execution team members listed in Exhibit 3, paragraph 4 insert cathe ters; (2) in accordance with either ISP 02-04 or ISP 06-26, or the “new-improved” protocol yet to be adopted by ISP (3) using the drugs and quantities listed in Exhibit 3, paragraph 3, or the quantities orally relayed to the Court as reflected in Part III of the Order entered April 16, 1007 regarding an April 13, 1007 pre-trial conference, Docum ent 63. W oods is likely to prevail on t he merits of the underlying action and the balance of hardships weighs decidedly in his favor. This application is based on the original Com plaint filed Timberlake, by the following memorandum of points and authorities and the attached exhibits, including the declaration of Dr. Mark Heath which sets forth the specific deficiencies in the Defendants’ lethal injection protocol. I. INTRODUCTION
3.
David Leon Woods, a death row inmate, is scheduled to be executed by Indiana State Prison Superintendent, Ed Bus s by me ans of lethal in jection. A rapidly growing body of evidence, including medical evidence, eyewitness obs ervation and veterinary studies, persuasively demonstrates that the particular lethal injection protocol chosen by Defendant Buss risks, and has repeatedly resulted in, inm ates failing to receive adequate anesthesia and rem aining conscious during the administration of lethal drugs. Without adequate anesthesia, the inmate experiences first slow suffocation and then the extraordinarily painful activation of the sensory nerve fibers in the
2

walls of the veins that is caused by pot assium chloride. Likewise, when individuals not appropriately trained in anesthesia are responsiblefor placement of the catheters for injection of the described drugs, unconscionable delays result in the execution preparation. Given the significant danger under the current protocol that W oods will be subjected to this excruciating m ental and physical pain and torture, he seeks to prevent the Defendant from executing him in this manner.
4.
According to Exhibit 3, paragraph 3, the D efendant will use three drugs in succession to cause Woods’ death: First, Sodi um Pentothal, an ultra-short-acting barbiturate that under ideal conditions will cause the inm ate to lose consciousness; second, Pa ncurorium Bromide, a neuromuscular blocking agent that paralyzes the muscles and has no apparent purpose other than to make the execution appear peaceful to witnesses; and finally,Potassium Chloride, which induces cardiac arrest. ISP Directive 06-26 and ISP Directive 02-04 establish the conditions under which these drugs are administered. It directs that the drugs be administered remotely, in the absence of trained personnel and with no monitoring of the inmate’s condition once the procedure is underway. The combination of using these particular drugs, in the dosages described in Exhibit 3 and/or the dosages referenced in Doc. 63, Part III.(1)(a), under these conditions creates a serious risk that the drugs, particularly the critically im portant Sodium Pentothal, will not be properly adm inistered. Administration errors could result, and dem onstrably have resulted, in inm ates retaining consciousness and suffering severe pain and torture during their executions.
5.
Thus, Woods’ suit is not prem ised on the possi bility that som e unforeseen error or unavoidable accident might cause him to be aware and in excruciating pain during his execution. Nor does he claim that execution by lethal injection is unconstitutional per se, regardless of the manner in which it is accomplished. On the contrary, healleges that the significant risk of a botched
3

and inhumane execution is an entirely foreseeable consequence of the particular conditions unnecessarily imposed by, and the failings of, ISP Directives 06-26 and/or 02-04. It is surely unconstitutional for the State to choose an executi on protocol that creates a significant risk of inflicting gratuitous suffering and excruciating pani . Woods therefore requests that the Court enjoin the Defendant from executing him by means of lethal injection as it is currently administered under ISP Directives 06-26 and/or 02-04. II. FACTUAL BACKGROUND
6.
On March 28th, 1985, Woods was convicted and sentenced to death in the Boone Superior Court 1, located in Lebanon, Indiana.
7.
Woods appealed his conviction and sentence of death to the Indiana Supreme Court who affirmed his conviction and s entence by a published opinion on Novem ber 28th, 1989. Woods v. State, 547 N.E.2d 772 (Ind. 1989). Mr. Ti mberlake’s petition for rehearing before the Indiana Supreme Court was denied A ugust 30, 1990. W oods v. State, 557 N.E.2d. 1325 (Ind. 1990). A Petition for Writ of Certiorari with the United States Supreme Court was denied June 28th, 1991. Woods v. Indiana, 501 U.S. 1259 (1991).
8.
On August 30th, 1995, Woods filed his amended petition for post-conviction relief in the trial court, Boone Superior Court I, Lebanon, Indai na. The petition was denied on April 15th, 1996 after an evidentiary hearing. Woods appealed the denial of his state petition for post-conviction to the Indiana Supreme Court. On November 27th, 1998, the Indiana Supreme Court affirmed the denial. Woods v. State, 701 N.E.2d 1298 (Ind. 1998). W oods’ Petition for Writ of Certiorari with the United States Supreme Court was denied October 4th, 1998. Woods v. Indiana, 528 U.S. 861 (1999).
4

9.
Woods filed a petition for writ of habeas corpus under 28 U.S.C. §2254 on Decem ber 2nd, 1999 in the United States District Court, Southern District of Indiana. This petition was denied February 2nd, 2004. Woods v. Anderson, 302 F.Supp.2d. 915 (S.D. Ind., 2004). Woods appealed the denial of his petition to the United States Court of Appeals for the Seventh Circuit. The Court of Appeals affirmed the district court’s denial of the petition on November 30th, 2005. Woods v. McBride, 430 F.3d 813 (7th Cir. 2005). A Petition for Rheearing and Rehearing En Banc of Denial Petition for Writ of Habeas Corpus Pursuant to 28U.S.C. §2254 was filed in the United States Court of Appeals for the Seventh Circuit. Woods filed a Petition for Writ of Certiorari in the United States Supreme Court which was denied October 10th, 2006. Woods v. McBride, 127 S.Ct. 391 (2006).
10.
On December 29th, 2006, Woods filed a petition for leave to file successive petition for postconviction relief in the Indiana Supreme Court, Indianapolis, Indiana. No evidentiary hearing was conducted. On March 26th, 2007, Woods’ petition was denied. On April 2nd, 2007, Woods filed a Petition for Writ of Habeas Corpus in the United StatesDistrict Court, Southern District ofIndiana. Woods v. Buss, 1:07-cv- 00411- DFH-TAB. That petition is still pending.
11.
Woods sought a Stay of Execution in the Indiana Supreme Court, alleging that his execution under the existing protocol em ployed by Defe ndant would violate t he Eighth Amendment prohibition against cruel and unusual punishment. [Exhibit 5, Motion for Stay, April 2nd, 2007]. On April 5th, 2007, the Indiana Supreme Court denied Woods’ request for a stay. [Exhibit 6, Order]. Woods has therefore exhausted all remedies in state court prior to presenting this Motion.
12.
Woods has sought permission to join as intervener into the present suit on March 5th, 2007. Woods has been granted permission to join as intervener; however, the Court has elected to treat
5

Woods in an expedited fashion because of the im minent execution date. In response to W oods’ Motion for Stay in the Indiana Supreme Court, Defendant argued that the Court should not grant a stay and defer a grant to the federal courts. [Exhbi it 7 State’s Verified Response to Motion for Stay of Execution]. In denying Woods’ Motion for Stay, the Indiana Supreme Court denied noting that this exact claim in currently pending in federal court in the instant case.
III. ARGUMENT
13.
In moving for a preliminary injunction, Woods seeks only to preserve the status quo while he litigates his constitutional claims. Woods will likely succeed on the merits of this action, and will suffer irreparable harm in the absence of temporary relief. It is also in the public interest to grant temporary relief because doing so will allow the important question of the constitutionality of ISP Directive 06-26 or 02-04 to be fully and accurately resolved on the merits and will avoid inhumane, unconstitutional execution. This action was timely brought and the balance of the equities so favors Woods that both justice and controlling precedent requrie that the Court preserve the status quo until the merits of the matter can be determined.
14.
Woods further identifies the following problems with the rush to litigage this m atter as a preliminary injunction request:
15.
1. The Indiana State Prison has yet to adopt the pr otocol it intends to utilize on W oods, making it difficult for him to accurately make complaints about that protocol; specifically making it impossible to attempt to exhaust any administrative remedies.
16.
2. The Indiana Death Penalty Assessment Team recently recommended a moratorium on executions based upon an exam ination 12 issues identified by the Am erican Bar Association as
6

central to the analysis of the fairness and accuracy of a state’s capital punishment system. While the issue of lethal injection, per se is not a part of that report, the deficiencies in the Indiana system are substantial and directly affect Woods’ eligibility for the death penalty when applied to his case. Correction of those inequities would render lethalinjection, as administered by Indiana, for Woods decidely cruel and inhumane
17.
3. The State of Indiana declared that the execution team for Woods has been “certified” by Kentucky. As of this writing, no further inform ation has been provided by the State. W e do not know who conducted the certification courses, if theer were any courses. We do not know what the training consisted of, what the certification certif ies the individuals to do, who (by classification rather than name) was certified; whether the certification was the same for everyone, etc. Under the court’s current time constraints, Woods will likely be executed without knowledge of those items.
18.
4. The co-counsel in this case legitim ately believe the case can be presented fully “this summer.” The delay of four or five months is minuscule compared to the irreparable harm Woods will suffer if his execution is carried out without the ability of his counsel to conduct adequate discovery and/or to properly litigate the underlying claims.
THE LEGAL STANDARD
19.
In order to decide whether a preliminary injunction is appropriate, the Court “must exercise its discretion to determine whether the balance of harm s weighs in favor of the m oving party or whether the unmoving party or public interest will beharmed sufficiently that the injunction should be denied.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). In the context of a capital case, w here the m ovant is under a death sentence and the issuance of a prelim inary injunction will have the effect of delaying a sc heduled execution, the Court m ust also take into
7

account any unnecessary delay on the part of the pisroner in bringing his claim. Nelson v. Campbell, 541 U.S 637, 649-650 (2004); Hill v. McDonough, 547 U.S. (2006).
20.
The Eighth Circuit Court of Appeals performed this weighing of the equities in Taylor v. Crawford, 445 F.3d 1095, 1097 (8th Cir. 2006). See also, Taylor v. Crawfor,dNo. 06-1397 (8th Cir. February 1, 2006)(en banc)(Order granting stay of execution). Plaintiff Taylor filed an action pursuant to 42 U.S.C. § 1983 challenging Missouri’s lethal injection protocol on substantially the same grounds that W oods has challenged Indiana’s procedure. See , Taylor, 445 F.3d at 1096. While the action was pending, the state scheduled Mr. Taylor’s execution. Id. at 1097. The district court granted a preliminary injunction preventing the execution from proceeding before the merits of the action had been determined. Id. A panel of the Eighth Circuit initially reversed and ordered that an immediate, truncated hearing be conducted to allow the execution to proceed on schedule, Id., but on the subsequent a ppeal the en banc c ourt granted rehearing and stayed Mr. Taylor’s execution, Id. at 1098.
21.
Upon reconsideration the panel affirmatively acknowledged that the plaintiff’s interest in having an evidentiary hearing on the merits of his claims prior to his execution was “equally [as] strong” as the State’s interest in the prom pt execution of its judgm ent. Id. at 1096. The court inquired of the parties how much time they would need to complete the discovery and evidentiary hearing that had previously begun, and ultim ately granted the 60 days that plaintiff’s counsel requested. Id. at 1098. This decision, then, stands for theproposition that a plaintiff who timely files a properly-pled 8th and 14th Amendment challenge to a state’s lethal injection procedure under 42 U.S.C. § 1983 is entitled to an evidentiary he aring on the merits of his claim s and, if the State schedules his execution in the interim, a preliminary injunction to prevent the State fromproceeding
8

with the execution before the hearing can be completed. See also, Cooey v. Taft, 2006 WL 1207982 (S.D.Ohio); Jackson v. Taylor, 2006 WL 1237044 (D.Del.).
C.A PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS 1.1 Plaintiff’s Claim is Cognizable Under 42 U.S.C. §1983
22.
The Complaint does not challenge the legality of Woods’ conviction or sentence, nor does it seek to prevent the state fromexecuting him by lethal injection in a lawful manner. Woods’ claim is therefore properly brought under 42 U.S.C. § 1983. Hill v. McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). In accordance with itsprevious opinion in Nelson v. Campbell, 541 U.S. 637 (2004), the Court held that a claimchallenging a method of execution as cruel and unusual punishment that “would not necessarily prevent the State from executing him by lethal injection,” is proper under § 1983 and need notbe brought in habeas. Hil,l 165 L.Ed.2d 44, 45. As is clear from the Complaint, the instant lawsuit is just such an action. Woods has specifically alleged that there are readily available alternative methods of execution by lethal injection that would both comport with state law and pass constitutional muster. He brings this action simply to ensure that he is put to death in a humane manner.
1.2 Indiana’s Lethal Injection Protocol Violates the Eighth and Fourteenth Amendments Because it Carries a Tremendous Risk of Unnecessary Pain During Executions
23.
The Eighth Am endment, applicable to the St ates through the Fourteenth Am endment, prohibits the im position of cruel and unusual punishments. U.S. Cons t. Amend. VIII. The prohibition includes the “inflicti on of unnecessary pa in in the execution of the death sentence.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1974); see also, Gregg v. Georgia, 428 U.S. 153, 173 (1976) (holding that the Eighth Amendment prohibits the “unnecessary and wanton infliction of pain”). Because it is impossible to determine with certainty before the fact whether a
9

particular inmate will suffer unnecessary pain during his execution, the question of whether a particular execution procedure will inf lict unnecessary pain is f undamentally an inquiry as to whether the inmate is “subject to an unnecessaryrisk of unconstitutional pain or suffering.” Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004) (emphasis added); Fierro v. Gomez, 77 F. 3d 301, 307 (9 Cir. 1996) (“Campbell also made clear that the method of execution must be considered in terms of the risk of pain.” (emphasis in original)); Campbell v. Wood, 18 F.3d 662, 687 (9 th Cir. 1994). “For any individual challenging a death sentence, evidence of botched execution can only be put in ter ms of probability.” J.D. Mortenson, Earning the Right to be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Claus, e88 IowaL. Rev. 1099, 1118-20 (2003).
24.
Of course, any medical or quasi-medical procedure inherently carries a risk that a mistake or accident m ight cause unforeseen pain. Thus, the Eighth Am endment does not require executioners to eliminate all possible risk of pain or accident from their execution protocols. See, Resweber, 329 U.S. at 464; Cam pbell, 18 F.3d at 687. A risk of pain becom es unnecessary, however - and unconstitutional - when experience with the execution procedure demonstrates that there are foreseeable problems that will result in the inmate suffering intense pain that alternative procedures do not engender.
25.
The assessment of the risks associated with a particular procedure is not static. Over time, our knowledge of the workings of t he human body increases, technology advances, and new information comes to light and old inform ation is more thoroughly understood and inte rpreted. Accordingly, methods of execution are developed, refined and abandoned. Execution by hanging, firing squad, gas chamber and electric chair, once standard, have all become virtually obsolete with
10

the passage of time. If a State opts to utilize capital punishment, the 8th Amendment imposes an obligation upon it to keep up with and respond to new developments and information and to ensure that they are using the m ost humane, least painful procedur e available. Evidence is now overwhelming that the particular lethal injection protocol chosen and currently in use by the ADC is far from the most humane available; rather, it engenders serious risks of causing excruciating pain and torture that other available methods simply do not. See, Cooey v. Taft, No. 2:04-cv-1156, 2006 WL 1207982 * 5 (S.D.Ohio April 28) (noting “mounting evidence calling Ohio’s lethal injection protocol, and the same or similar protocols employed by other states, increasingly into question”).
b.a The Protocol Is Old And Was Ill-Conceived At The Outset
26.
Legislation directing a change in the m ethod of execution from electrocution to lethal injection was passed in Indiana in 1983. As it does tothis day, the statute left all decisions regarding the particular chemicals to be injected and the a dministration procedures to be em ployed to the discretion of the Depa rtment of Correction. See , Ind. Code§ 35-38-6-1 (1983). From discovery provided by the Defendant, it appears that the protocol was designed with no input or advice from medically trained personnel. The ongoing changes withthe protocol also appear to be designed with no input or advice from medically trained personnel, but instead rely upon prison officials in other states, whose focus is to carry out the execution.
27.
The Texas protocol, upon which t he Indiana procedure was apparently m odeled, was designed by lay cor rections officials with no m edical knowledge. Louisiana is another state that looked to Texas when it came time to figure out how to execute someone by lethal injection. When the chief legal counsel of the Louisiana Department of Corrections consulted with the warden of the
11

Texas Department of Corrections responsible for executions about the “m edical portion” of the

Texas protocol, she was told:

[T]hat the only thing that mattered was that the guy ended up dead and that he wa sn’t worried too m uch about the am ount of medicine. He had certainly used the same types of medicine, but that he wasn’t totally concerned aboutthe amounts or what it may or may not do. They ended up dead, and tha’ts all he was worried about. The rest of our conversation with himtracked that same thing. He was not terribly concerned about policy, procedure, or who did what, when, where. Just so the right result happened.’

28.
So Long as They Die: Lethal Injections in the United States, 18 Human Rights Watch 1(G)

at 16-17 (2006) (Exhibit 5). The Defendant has used the protocol adopted in this ad hoc

,

unscientific manner for all executions by lethal injection conducted in Indiana, and stil l uses that

same procedure.

b.b The Protocol Arbitrarily Sel ects Painful Drugs And Fails To Ensure Adequate Anesthesia During Their Administration

29.
The Defendant does not provide the authorityby which he uses the drugs and drug dosages

listed in Exhibit 3, paragraph 3 or as may be used in Doc. 63, Part III1a. The first drug, Sodium

Pentothal, is an anesthetic, intended to rapidly induce unconsciousness. The second active drug,

Pancurorium Bromide, is a neuromuscular blocking agent that causes complete paralysis. Finally,

Potassium Chloride is introduced to cause cardiac arrest.

30.
Potassium Chloride is a salt that naturally occurs in trace am ounts in the human body. In

large quantities, however, such as the 100 milligrams listed in Exhibit 3 at 3, it not only causes the

heart to stop beating but also causes excruciating pain as it travels through the circulatory system.

The drug activates the sensory nerve fibers of the insides of the veins as it courses through the body

12

from the injection site to the heart, causing a sensation that has been likened to fire scorching along the vessels. See, Exhibit 4 at ¶12 (Declaration of Dr. Mark Heath).
31.
The neuromuscular blocking agent Pancurorium Bromide stops all movement, including that necessary to breathe. The drug has no effect, however, on consciousness or the ability to perceive pain. If a prisoner is conscious when this drug is adm inistered, he will feel the visceral pain and distress of slow suffocation, much like as if he were drowning or being crushed to death. I.dat ¶15.
32.
Having made the choice to administer two drugs that cause excruciating pain and agony, a choice that was not required by either statute or practical considerations, the Defendant can only fulfill its responsibility under the 8th Amendment to avoid gratuitous and unnecessary pain and torture only if it ensures that the prisoner is adequately anesthetized at the time that those drugs are administered. In order to ensure that the prisonerdoes not feel pain a surgical plane of anesthesia, or that level of anesthesia that prevents conscious perception of noxious stimuli of the magnitude of surgical procedures, m ust be achieved and m aintained throughout the execution procedure. However, the drug that is used induce anesthesia, administered in accordance with the procedures listed in Exhibit 3 _ 3, is an exceedingly inferior choice for the task and fails to provide the necessary assurance of adequate anesthesia.
(2)1 Sodium Pentothal is an Ultra-Short-Acting Barbiturate Unsuitable for use as Sole Anesthetic Agent for Executions, Especially in the Dose the Defendant Plans to Use
33.
Sodium Pentothal is an ultra-short-acting barbiturate that is used for certain specific purposes in surgical anesthesia. Its effect has a rapid ons et and then a rapid recovery; the patient becom es unconscious very quickly after the drug is introduced, and the effects begin to wear off very soon thereafter. Sodium Pentothal is therefore ideal for the provision of anesthesia during intubation at
13

the beginning of surgery, for example, because it induces deep anesthesia rapidly but if there are problems with the intubation the patient will re gain consciousness and the ability to breathe independently very quickly. See, Exhibit 4 at ¶ 24-25 (Declaration of Dr. Heath).
34.
The reasons for the drug’s utility in certain surgical contexts, however, are also reasons why Sodium Pentothal is decidedly inappropriate for use as the sole anesthetic agent during a lethal injection procedure. Id. at ¶ 26-27. Although the Indiana protocol calls for a dose of the drug that is large enough to be lethal if properly administered, any problems with the delivery of the full dose engender the serious risk that the inmate will receive an insufficient amount of the drug to induce a deep enough plane of anesthesia, or to maintain that degree of anesthesia throughout the execution process. In short, if the inmate does not receive the full amount of Sodium Pentothal, and there are many reasons why tha t can and apparently does ha ppen, the anesthetic effect m ay wear off too quickly and the inmate may be conscious and suffering during the remainder of the procedure.
35.
The Defendant’s protocol unnecessarily enhances these risks by its arbitrary and unnecessary adoption of 5 grams as the does of Sodium Pentothal to be administered. The level of anesthesia, if any, achieved in each individual inmate depends on the amount that is successfully administered, although other factors such as the inmate’s weight and sensitivity/resistance to barbiturates are also important. Many foreseeable situations exist in which human or technical errors could result in the failure to successfully administer the intended dose. If error occurs that results in the prisoner receiving less than the 5 gram dose, the prisoner be inadequately anaesthetized and therefore conscious and suffering. Exhibit 4 at 27 (Declaration of Dr. Heath).
14

36.
Additionally, the Defendant’s protocol fails to even require that additional SodiumPentothal be available in the execution cham ber in the ev ent that problems with delivery of the dose are detected and more of the anesthetic agent is determined to be necessary. Because of its instability, the drug is distributed in powder form and must be placed into solution before it may be injected. Id, at ¶ 27 (a). There is no directive that requires even that extra Sodium Pentothal powder be on hand, much less extra syringes of the drug already mixed into solution, and so in the event that execution personnel were to detect signs of inadequate anesthetic depth or possible consciousness once the execution process was under way, the protocolensures that there is nothing they could do about it. As noted, t he circumstances under which a failure to achieve and m aintain adequate anesthesia may occur are many, varied and common.
(2)2 Obtaining IV Access for Execution Purposes Requires Training and Skill that the Defendant’s Execution Personnel Lack
37.
Establishing peripheral intravenous access to an inmate to facilitate the administration of the lethal drugs called for by Exhibits 1 (ISP 06-24) 2 (ISP 02-04) is a compl ex and risky medical procedure that should only be performed by properly medically trained and qualified personnel. The process is fraught with the potential for error. Underthe best of circumstances, it is vital that the IV set-up be assembled properly and securely. The set-up consists of multiple parts and pieces of tubing, which may leak or otherwi se fail to permit the unobstructed flow of chem icals into the inmate’s circulatory system if not correctly attached. See Exhibit 4 at ¶ 27(e) (Declaration of Dr. Heath).
38.
The tourniquet that is applied to facilitate accses to the peripheral vein must be removed once IV access is achieved; failure to do so will obstruct tehflow of the anesthetic agent into the inmate’s
15

body. See, Id. at ¶ 27(k). Placement of the extensive restraining straps that the Defendant uses to tie the inmate down to the gurney may cause the same problem. See Exhibit 7 at ¶ 27(l) (Declaration of Dr. Heath).
39.
It is critical that the catheter be inserted into the vein in a precisely correct fashion in order to ensure that the full dose of the anesthetic drug is delivered into the inmate’s circulatory system. If the catheter is inserted incorrectly, the drug will go into the tissue surroundni g the vein rather than into the vein itself. See, Id. at ¶ 27(f). This condition, knownas infiltration, is not uncommon. Id. Uncorrected, it will result in a failure of the anesth etic to reach the central nervous system and a failure to render the inm ate unconscious. Id. Once properly inserted, the catheter m ust be adequately secured with tape or by other means, or else it may shift and result in infiltration. Id. at ¶ 27(j).
40.
Even finding a suitable peripher al vein into which the catheter m ay be placed can be a medically complex and difficult endeavor. See, Exhibit 6 (News Rpt of Marvin Bieghler Execution), Exhibit 7 (News Rpt of Tommy Smith Execution). Due to a variety of conditions, including obesity, prior intravenous drug use, corticosteroid treatm ent and even just naturally sm all or deep veins, obtaining peripheral IV access may be difficult or even impossible. Id. at ¶ 36. The very nature of the execution process may exacerbate this problem, because the autonomic manifestations of the anxiety associated with impending death include constriction or narrowing of the veins. Id. at ¶ 41.
41.
In the event that peripheral IV access proves impossible to obtain, Indiana’s protocol calls for the use of dramatically more medically complex, risky and invasive procedure of a cut-down, which entails making a deep incision into the inm ate’s skin in order to access a vein that is not accessible from the surface, or a central line, which requires insertion of the catheter into a large
16

vein such as the subclavian vein in the chest or the femoral vein in the groin. See, Exhibit 8 (Cutdown photos).
42.
Both procedures have been conducted in nIdiana by the Defendant and his predecessors.See Exhibits 9 (Post mortem photos of Tommy Smith). Despite the complexity of and risks associated with these types of procedures neither Exhibit 1 nor 2 set forth any procedures governing the use of these techniques. The protocol fails to specify how they are to be conducted or to set forth the qualifications required of the personnel who will act ually perform them. Given the nature of the procedures it is unacceptable that they be perform ed by anyone except for m edically trained personnel possessed of adequate skill and experience, but the protocol fails to require any particular knowledge or ability at all. Emergency medical training is insufficient for the performance of such medical procedures.
(2)3 Maintenance of Adequate Anesthesia Throughout t he Execution Process Requires Training and Skill that the Defendant’s Execution Team Lacks
43.
Even once peripheral IV access has been establihs ed and the catheters are properly inserted, there are still a large number of problems that may arise which can interfere with the proper delivery of anesthesia. It is critical, therefore, that theinmate be closely monitored by medically trained and experienced personnel throughout the execution process in order to detect problems as they occur and ensure that the inmate is maintained on a sufficiently deep plane of anesthesia. See, Exhibit 4 at ¶¶ 31-32 (Declaration of Dr. Heath). Even most qualified nurses and paramedics are not trained in the use ofultra-short-acting barbiturates; these drugs are used only by anesthesiologists and a very select group of nurse who have obtained significant experience in intensive care units and as nurse anesthetists. Id. at ¶ 30. Training equivalent to that of an anesthesiologist or a CRNA is minimally required in order to ensure that an execution using the drugs and procedure set out hum ane. Id.
17

However, Indiana’s protocol fails to provide for any monitoring of the inmate during the execution process, much less monitoring by individuals competent in the provision of general anesthesia.
44.
Errors and problems are potentially rife beginning at the stage of preparation of the lethal drugs. Sodium Thiopental is unstable in solution, and is therefore distributed by the manufacturer in powder form. Before it may be injected intravenously, the powder must be mixed with liquid, a process that requires knowledge of pharm aceuticals and fam iliarity with term inology and
abbreviations. Id. at ¶ 27(a). The Defendant apparently provides no guidancteo execution personnel
on this issue.
45.
Indiana’s protocol sets out that the “injectionetam prepares two (2) sets of seven (7) syringes to be used during the execution.” Exhibit 1 (ISP 062- 4). There is no indication that the contents of the syringes be m arked on the syr inges, which means that if a drug is erroneously placed in a syringe, the error is likely to go undetected and the drugs will be administered in the wrong order. Such lack of labeling i s far below the appropria te medical standard of care and would never be permitted in the clinical context. Administration of the drugs in the wrong order m ay also result from the fact that each syringe is a separate until that must be attached in series to the IV set up by hand. The protocol fails to guard against the possibility that t he executioner m ight select the incorrect syringe, or to provide for m onitoring of the inm ate to ensure that such an error is immediately detected if it occurs, or to prescribe thesteps to be taken ifsuch a situation is detected.
46.
If the lethal drugs are administered in the wrong order a range of negative consequence may ensue. Several of the syringes are supposed to contain saline solution to be administered between drugs in order to flush the IV lines of all traces of the preceding agent. Of primary importance is
18

the fact that, if m ixed with Pancurorium Br omide outside of the body, Sodium Pentothal will precipitate, i.e. solids will form in the solution, impairing or preventing delivery of the full dose of anesthetic agent. Hence, if e rror in the selection of syringes results in the introduction of Pancurorium Bromide before the line has been flushed with saline solution, inadequate anesthesia may result.
47.
Indiana’s lethal injection protocol requires that the executioners who inject the lethal drugs into the IV set up be located in a room that is apart from the execution chamber where the inmate is placed on the gurney, separated by a window with a hole in it for the IV lines to pass through. Because of the distance between the inmate and the executioners that this procedure necessitates, extended IV tubing is required. The introduction of extra length and components to the iv set-up not only increases the num ber of sites where leakage m ay occur, see , Exhibit 4 at ¶ 27(e) (Declaration of Dr. Heath), but also increases the risk that the tubing may coil or kink.
48.
Even when properly placed initially, the tip ofan IV catheter may migrate during the course of the execution so that it is outsideof the vein at the time of the introduction of the anesthetic agent and infiltration occurs. See, Exhibit 4 at ¶ 27(g) (Declarationof Dr. Heath). Although the catheter appears to be securely and properly placed, too, the process of inserting it may weaken or damage the vein wall such that the vein ruptures when the administration of the lethal drugs begins. Id. at ¶ 27(h). This risk is increased by the fact th at inexperienced, untrained pe rsonnel may exert excessive pressure on the syringe plungers, increasni g the velocity of the administration of the drug and consequently the pressure that is placed on the vein walls.Id. Indeed, excessive pressure on the plunger can lead to tearing or rupture of the veineven in the absence of damage caused by the initial insertion of the catheter. Id., at ¶ 27(I).
19

49.
Because of each of these potential problem s and more, constant, close m onitoring of the
inmate’s plane of anesthesia throughout the ex ecution process by individuals who a re properly
trained and skilled in anesthesiology is indispensa ble. And yet, the Defe ndants’ protocol fails to
provide for any m onitoring at all once the execution is underway, muc h less m onitoring by
personnel who have the requisite knowledge and experience to detect and rectify any problems that
may arise.
(2)4 Even if Defendant’s Execution Team Were Qualified to Administer IV Anesthesia, the Use of Pancurorium Bromide and the Physical Arrangement of the Execution Chamber Preclude Effective Monitoring
50.
Not only does Indiana’s lethal injection protocolfail to provide for monitoring of the inmate
by persons qualified in assessing anesthetic depth, it calls for a physical arrangement of inmate and
executioners that would unnecessarily hinder effective m onitoring even if it were attem pted. As
noted, the protocol requires that the executioners who inject the lethal drugs into the iv set-up be
located in a roomthat is apart fromthe execution chamber where the inmate is placed on the gurney,
separated by a window with a hole in it for the iv lines to pass through. The persons who control
the administration of the drugs, then, are the furht est away of any execution chamber personnel and
their line of sight to the inmate is impeded. The distance entirely precludes the close monitoring of
the diagnostic signs of anesthetic depth that are constantly checked during surgical procedures.
51.
The announcement by the Attorney General contained in Doc. 6,3Part III 1b that “the wheels
of the gurney on which the condemne d is to be placed have been rem oved. At the tim e of this
writing, Woods has no further information regarding this claim. He does not know what the theory
behind the claim is, whether any prior executions suffered problems relating to the wheels of the
gurney, what other portions ofthe protocol will have to be altered in order to accomodate the change 20

and what the implications are for the potential thathe will subjected to unnessary and needless pain. In previously filed protocols (Docs 1, 2 and 3), the condemned was to be placed on the gurney and secured in a place other than t he execution chamber, then wheeled into the cham ber. We do not know how he will be placed on the gurney, what measures will be used to secure him, or how his remains will be removed.
WOODS WILL SUFFER IRREPARABLE HARM IF A PRELIMINARY INJUNCTION IS NOT GRANTED
52.
If the Defendant is not enjoined from executing him in accordance with Exhibit 1(ISP 0624), Woods will likely suffer irreparable harm. Being forced to endure excruciating pain during the execution process clearly constitutes irreparable harm. See, Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)(holding that continued pain and suffering resulting from deliberate medical indifference is irreparable harm). As is clear from the foregoing, there is ample evidence that Defendants’ proposed method of execution carries a significant and unacceptable risk that Woods will indeed suffer that harm. The threat of harm is both “real and immediate,” and thus the situation is one that is “ripe for injunctive relief.” See, Goff v.Harper, 60 F.3d 518, 521 (8th Cir. 1995). Moreover, Mr. Woods will have no retrospective remedy for the constitutional violation, as he will no longer be alive.
THE BALANCE OF HARMS STRONGLY FAVORS WOODS 53.
In contrast, the harm to the State and the Defendant that will result from the entry of a preliminary injunction is slight. The State undoubtedly has a strong interest in the prompt execution of its judgments. The delay resulting from granting the temporary relief sought herein, however, will have little adverse effect upon that interest. See Gomez v. US. Dist. Ct. for Northern Dist. of Ca., 966 F.2d 460,462 (9th Cir. 1992) (Noonan, J., dissenting from grant of
21

writ of mandate) (“The state will get its man in the end. In contrast, if persons are put to death in a manner that is determined to be cruel, they suffer injury that can never be undone, and the Constitution suffers an injury that can never be repaired.”). The balance of harms tips sharply in favor of entering a preliminary injunction.
GRANTING TEMPORARY RELIEF IS IN THE PUBLIC INTEREST
54.
Whether the State is executing its prisoners in a way that subjects them to an excruciatingly painful, torturous death is clearly a matter of vital public interest. The standards of decency and humanity in a society such as ours are gravely offended by such practices, and so it is affirmatively in the public interest to address and resolve the merits of the Woods’ claim in order to identify and put an end to unnecessary procedures that pose a risk of causing gratuitous suffering. Indeed, the citizens of the State of Indiana, through their elected representatives, have expressly acknowledged the importance of conducting executions as humanely as possible by changing the method from electrocution to lethal injection as a result of the belief that the latter reduces unnecessary suffering.
55.
There is now compelling evidence that Indiana’s lethal injection protocol creates a significant and unacceptable risk of, and on multiple occasions has actually resulted in, the infliction of unnecessary pain. As noted above, the claim does not become ripe for resolution until an execution is imminent but, if a preliminary injunction is not granted, the execution will necessarily take place before the issues can be adjudicated. In light of the importance of the questions involved, it is clearly in the public interest that temporary relief be granted in the instant case to solve this dilemma and permit a definitive determination of the merits to be made. “[T]he public interest only is served by enforcing constitutional rights and by the prompt and
22

accurate resolution of disputes concerning those constitutional rights. By comparison, the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate’s constitutional rights.” Cooey v. Taft, 2006 WL 1207982 at *6 (S.D.Ohio).
56.
Counsel for lead plaintiff, Norman Timberlake, counsel for Plaintiff Intervenor Lambert and counsel for defendant all represented to the Court, during a telephonic pre-trial conference, that the case could be tried, if necessary, during the summer of 07. That brief of a delay, given the irreparable harm Woods if one is not rendered, is not unreasonable.
CONCLUSION
57.
The purpose of this lawsuit is not to prevent the State from executing Woods. It is to prevent it from executing him in a manner that subjects him to excruciating pain and torture that is gratuitous and unnecessary and in violation of the Constitution. To avoid the risk that his execution will be performed in such a manner, Woods is entitled to relief under 42 U.S.C. § 1983. In order to allow him an opportunity to prove that entitlement, and to obtain an adjudication of the merits of his claim Woods respectfully requests that the Court issue a preliminary injunction presenting the Defendant from executing him by means of lethal injection under the protocol currently in effect in the State of Indiana.
Respectfully submitted, /s/ Linda M. Wagoner_____ 155 S. Public Square Angola, In 46703 /s/ William Van Der Pol, Jr. P.O. Box 1799 Martinsville, In 46151
23

CERTIFICATE OF SERVICE

The undersigned counsel certifies that a copy of the foregoing has been served electronically the following this 18th day of April , 2007:

Brent Westerfeld

Lorinda Meier Youngcourt

Richard Waples

Alan Freedman

Carol Heise

S/Linda M. Wagoner

Laurence Komp

Linda M. Wagoner

William Van Der Pol, Jr.

DAGs Betsy Isenberg and Thomas Quigley

Linda M. Wagoner Attorney for Prospective Intervener, David Leon Woods 155 S. Public Square Angola, IN 46703 (260) 624-3343 lmwagoner@mchsi.com
William Van Der Pol, Jr. Attorney for Prospective Intervener, David Leon Woods P. O. Box 1799 Martinsville, IN 46151 (765) 349-0362 bvander3@insightbb.com

24

 
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 Wnittb ~tatt5 QCourt of ~ppta15
For the Seventh Circuit
Chicago, Illinois 60604
NOTICE OF ISSUANCE OF MANDATE

DATE: TO:

May 25 1 2007
Laura A. Briggs United States District Court Southern District of Indiana Room 105 46 E. Ohio Street United States Courthouse Indianapolis , IN 46204

FILED
MAY 2 9 2007
U.S. CLERK'S OFFICE INDIANAPOLIS, INDIANA

FROM: Clerk of the Court

RE:

07-2001

Woods, David L. v. Buss, Edwin G.

06 C 1859, Richard L. Young, Judge

Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A certified copy of the opinion/order of the court and judgment, if any, and any direction as to costs shall constitute the mandate.

[X] [ ]
ENCLOSED:
[ [ [ [ [ [ [

No record filed

Original record on appeal consisting of:

TO BE RETURNED AT LATER DATE:

Volumes of pleadings

[ ]

Volumes of loose pleadings

[ ]

Volumes of transcripts

[ ]

Volumes of exhibits

[ ]

Volumes of depos ions

[ ]

In Camera material

[ ]

Other__________________________________ [ ]

Record being retained for use in Appeal No.

Copies of this notice sent to:

Counsel of record

[ ]

United States Marshal

[ ]

United States Probation Office

NOTE TO COUNSEL:

If any physical and large documentary exhibits have been filed in

the above entitled cause, they are to be withdrawn ten days from the

date of this notice. Exhibits not withdrawn during this period will

be disposed of.

Please acknowledge receipt of these documents on the enclosed copy of this notice.

Received above mandate and record, if any, from the Clerk, U.S.

Court of Appeals for the Seventh Circu~.

)>7. /J .~

Date:

~

~

(1071-120397)

Deput!)e~elerk,l:fJ.§.. D~r:~@4 Court

Wntteb ~tate5 ((ourt of ~ppea15
For the Seventh Circuit Chicago, Illinois 60604
JUDGMENT- WITHOUT ORAL ARGUMENT

Date: May 3 I
BEFORE:
No. 07-2001

2007 Honorable WILLIAM J. BAUER, Circuit Judge Honorable MICHAEL S. KANNE, Circuit Judge Honorable TERENCE T. EVANS, Circuit Judge

FILED
MAY 29 Z007
U.S. CLERK'S OFFICE INDIANAPOLIS, INDIANA

NORMAN TIMBERLAKE, aintiff
v.

EDWIN G. BUSS, Superintendent, Defendant Appellee

APPEAL OF: DAVID L. WOODS, Intervenor Plaintiff

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. 06 C 1859, Richard L. Young, Judge
The district court's decision denying Woods' motion for preliminary injunction is AFFIRMED. Woods' application for a Stay of Execution is DENIED. The above is in accordance with the decision of this court entered on this date.
(1060-110393)

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

'lJr C;t"'.h "#)'

~--------------------------------~ 'r!~b

Wntttb ~tatt£S (!Court of ~pptal£S

For the Seventh Circuit Chicago, Illinois 60604
Submitted May 3, 2007 Decided May 3, 2007

Ct:.RTU·· U:.D COP)

Before

Hon. WILLIAM J. BAUER, Circuit Hon. MICHAEL S. KANNE, Circuit Judge

FILED

Hon. TERENCE T. EVANS, Circuit Judge

MAY 29 Z007

No. 07·2001
DAVID L. WOODS, Intervener Plaintiff-Appellant,
v.
ED BUSS, Superintendent, Defendant·Appellee.

U.S. CLERK'S OFFICE Appeal from the United I~~APOLIS. INDIANA District Court for the Southern District of Indiana, Indianapolis Division.
No. 06 C 1859
Richard L. Young, Judge.

ORDER
David Woods is scheduled to be executed by lethal injection on May 4,2007 at 12:01 A.M. by the State ofIndiana. He challenges Indiana's method oflethal injection. The district court denied Woods' motion for a preliminary injunction and denied him a stay of execution. We affirm the district court's decision denying Woods' motion for preliminary injunction. We deny his request for a stay of execution.
I. HISTORY
On April 7, 1984, David Woods stabbed to death a 77 year-old man in order to steal $130 in cash and a television that Woods later resold for $20. Woods v. McBride, 430 F.3d 813,815-16 (7th Cir. 2005). Woods was convicted of murder and

No. 07-2001

Page 2

robbery and was sentenced to death. Id. at 816. His case proceeded through direct and post-conviction review in the Indiana state courts and habeas review through the federal courts. Woods v. McBride, 430 F.3d 813 (7th Cir. 2005), cert. denied, 127 S. Ct. 391 (2006). Yesterday, we denied Woods' request for a Certificate of Appealability for a second habeas petition and refused his request for a Stay of Execution. Woods v. Buss, 07-1951 (7th Cir. May 2,2007).

On March 5, 2007, Woods sought leave to intervene in a preexisting lawsuit challenging Indiana's lethal injection method. Timberlake v. Buss, 06-CV-1859 (S.D. Ind). Woods was granted leave to intervene on April 10, 2007, filed a statement of claims on April 17, 2007 and filed a motion for a preliminary injunction and stay of execution on April 18, 2007. On May 1, 2007, the district court denied Woods' motion for preliminary injunction and request for a stay of execution.

II. ANALYSIS

"We review the denial of a preliminary injunction for an abuse of discretion." Autotech Tech. Ltd. Partnership v. Automationdirect.com, 471 F.3d 745,748 (7th Cir. 2006) (citing Goodman v. Ill. Dep't of Fin. & Prorl Regulation, 430 F.3d 432, 437 (7th Cir. 2005». In reviewing the district court's decision, "we examine legal conclusions de novo [and] finding of facts for clear error." Joelner v. Village of Washington Park, Illinois, 378 F.3d 613, 619-20 (7th Cir. 2004). "To prevail on a motion for a preliminary injunction, the moving party must demonstrate (1) a likelihood of success on the merits; (2) a lack of an adequate remedy at law; and (3) an irreparable harm will result if the injunction is not granted. FoodComm Intern V. Berry, 328 F.3d 300,303 (7th Cir. 2003) (citations omitted). If the moving party meets the first three requirements, then the district court balances the relative harms that could be caused to either party. Incredible Tech., Inc. v. Virtual Tech., Inc., 400 F.3d 1007, 1011 (7th Cir. 2005».

The district court rejected Woods' claims on two grounds. First, it held that Woods had failed to demonstrate that Indiana's lethal injection method violates the Eighth Amendment prohibition on cruel and unusual punishment. Second, the district court held that the last minute nature of Woods' claims strongly counseled against granting him relief.

The Supreme Court has recognized that the prisoner may challenge the means of his execution pursuant to 42 U.S.C. § 1983 to determine whether the method complies with constitutional requirements. Nelson V. Campbell, 541 U.S. 637, 644 (2004). "The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Hope v. Pelzer, 536 U.S. 730, 737 (2002) (quotations and citations omitted). To succeed on an Eighth Amendment claim, the plaintiff must demonstrate both that there is an objectively

No. 07-2001

Page 3

serious deprivation and the deprivation was done with deliberate indifference. Farmer v. Brennan, 511 U.S. 825,834 (1994).

In its May 1, 2007 decision, the district court determined that the individuals responsible for Woods' execution are sufficiently trained and experienced and are governed by appropriate procedures to insure that there is not a "significant" or "unnecessary risk that Woods will suffer unnecessary pain during the execution process." Dist. Ct. May 1, 2007 Op. at pg. 3. The district court also concluded that "Woods' allegations concerning deficiencies in the execution protocol are simply off base." Id. at pg. 9. Finally, the district court determined that Woods could not demonstrate either a deprivation of his constitutional right to be free from "unnecessary and wanton infliction of pain," nor deliberate indifference by the defendants. Id. at pgs. 9-10.

We hold that the district court did not abuse its discretion in deciding that the execution of Woods pursuant to Indiana's lethal injection method does not violate Woods' constitutional rights. The district court properly considered the applicable law governing the Eighth Amendment and properly applied it to Indiana's lethal injection method. We adopt the reasoning of the district court's decision of May 1, 2007 as our own.

We are also particularly mindful of the fact that Woods is pursuing this additional "eleventh hour" attempt to delay his execution. "A court may consider the last-minute nature of an application to stay execution in deciding whether to grant relief.... [T]here is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." Nelson v. Campbell, 541 U.S. 637, 649 (2004).

III. CONCLUSION

The district court's decision denying Woods' motion for preliminary injunction is AFFIRMED. Woods' application for a Stay of Execution is DENIED.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORMAN TIMBERLAKE, et al., Plaintiff, vs.
EDWARD BUSS, Defendant.

) ) Cause No. 1:06-cv-1859-RLY-WTL ) ) HON. RICHARD L. YOUNG ) ) MAG. WILLIAM T. LAWRENCE ) ) )

INTEVENOR LAMBERT’S MOTION FOR INJUNCTIVE RELIEF

This Court previously granted Lambert the opportunity to intervene. Lambert was

the first party to move to intervene. Defendant Buss executed the other properly

intervened party in early May 2007. Lambert moves for a preliminary injunction to

prevent his execution. Lambert respectfully moves for injunctive relief pursuant to Rule

65(a) of the Federal Rules of Civil Procedure. Alternatively and at the very least,

Lambert requests this Court, in the event this Court declines to grant a preliminary

injunction under Rule 65(a), pursuant to its authority under the All Writs Act, 28 U.S.C. § 1651(a),1 and the Anti Injunction Act, 28 U.S.C. § 2283, issue an order in aid and

preservation of its jurisdiction in this § 1983 action prohibiting the defendant and the

State of Indiana, and their and its agents, from proceeding with Lambert’s execution by

lethal injection that was sought by defendant, and was scheduled by the Indiana Supreme

Court, in clear disregard of this Court’s pre-existing and prior jurisdiction over Lambert

and his constitutional challenges to the very lethal injection protocol the State plans to

use executing Lambert.

1 The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a); In re Campbell, 264 F.3d 730, 731 (7th Cir. 2001).

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A. Lambert is Entitled to a Preliminary Injunction under Rule 65(a) of the Federal Rules of Civil Procedure.
Lambert is entitled to a preliminary injunction that prevents the defendants from executing him using the protocol described in Lambert’s intervenor complaint before the merits of his pending civil rights complaint are fully adjudicated. In order to obtain a preliminary injunction, Lambert must show some likelihood of success on the merits and that if an injunction is not granted, it will suffer irreparable injury for which it lacks an adequate legal remedy. See, e.g., Foodcomm Int'l v. Barry, 328 F.3d 300, 303 (7th Cir. 2003). If Lambert establishes the prerequisites identified above, this Court then balances the harm risked by the moving party against that which the nonmoving party will suffer if the injunction is granted. Foodcomm, 328 F.3d at 303.
Lambert hereby incorporates by reference the now deceased Intervenor Wood’s arguments regarding why injunctive relief is appropriate in this case. The expert medical testimony presented at the hearing more than rebuts the testimony of the non-medically licensed testimony of Defendant Warden. As noted by the Court in Cooey, et al,. v. Taft, et al., Case No. 2:04-cv-1156 (S.D. Ohio May 31, 2007) (May 31, 2007) (Slip Op. p. 5) (Attachment 1), there is an ever “growing body of evidence calling the lethal injection protocol [] into question.”
The Written Execution Protocol Of Indiana Department Of Corrections—Unlike That Of Missouri—Lacks Essential Safeguards Against A Substantial And Foreseeable
Risk Of Gratuitous And Unnecessary Pain In Violation Of The Eighth Amendment On June 4, 2007, the United States Court of Appeals for the Eight Circuit found
that the revised execution protocol for the State of Missouri comported with the requirements of the Eighth Amendment. Taylor v. Crawford, ___F.3d ___, 2007 WL 1583874 (8th Cir. (Mo.)).
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Several crucial aspects of the Missouri execution protocol — outlined in Taylor — stand in stark contrast to the protocol of the State of Indiana, and cast Indiana’s Execution Protocol outside the parameters of the Eighth Amendment. The following elements of Missouri’s written protocol were noted with particularity by the court in Taylor as reasons why the revised protocol comported with the Eighth Amendment:
1. A physician, nurse or pharmacist prepares the chemicals, which are injected by non-medical department employees. Id. at *9.
2. In addition, only a physician, nurse or emergency medical technician holding either an “EMT-intermediate or EMT-paramedic” certification is allowed to insert the intravenous lines, and the protocol further “requires that this individual be qualified with appropriate training, education, and experience to perform the IV placement procedure…” Id. The Court stated “it is imperative for the State to employ personnel who are properly trained and competent to carry out each medical step of the procedure.” Id. at *11.
3. In further addition, the physician, nurse or emergency medical technician must insert the intravenous lines, “establishing both a primary and a secondary IV (which must be a peripheral line [“the standard IV placement on the top of the hand” Id. at *4]) Id. at *9.
4. The protocol requires medical personnel “to attach and monitor an electrocardiograph during the execution procedure. Id. at *10
5. Medical personnel must supervise the injection of the contents of the syringes by department employees. Id.
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6. Before the second and third chemicals (pancuronium bromide and potassium chloride) are injected, medical personnel must examine the condemned person physically, using standard clinical techniques to confirm that he is unconscious. Id. Indiana’s Execution Protocol Is Lacking In Critical Eighth Amendment Protections Against Substantial, Foreseeable Risks of Gratuitous and Unnecessary Pain
The Indiana Execution Protocol contains not one of the above-listed requirements. First, unlike Missouri’s protocol, no physician, nurse or pharmacist is required to mix the lethal chemical in Indiana’s Execution Protocol. Non-credentialed, non-medical staff does this without supervision by appropriate medical personnel, but are “taught” by the physician. Second, the Indiana protocol calls for a physician whose only duties “shall be to pronounce death after the execution has occurred and to perform a cut-down procedure should the I.V. technician be unable to find a vein adequate to insert the Angiocath.” Timberlake, Lambert, Woods v. Buss, No. 1:06cv1859, Document 32-2, “Indiana Department of Correction Operation Directive ISP 06-26, March 6, 2007” [hereafter “Indiana Execution Protocol”] at 6. The physician appears to otherwise remain uninvolved; but seems to sometimes be involved in a shadowy, quasi-medical manner intentionally deprived of even the most rudimentary medical equipment. No qualifications exist for the staff members who carry out the critical steps in the execution process. A vague mention in the Indiana Execution Protocol of “training” monthly in “cell extraction/restraint, protocols in starting I.V.’s” and lighting evaluation hardly compares with the defined medical qualifications that passed constitutional muster in Missouri: there, a physician, nurse or emergency medical technician holding either an “EMT-intermediate or EMT-paramedic” certification inserts the intravenous lines, and in
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addition to these credentials, this individual must also be qualified with appropriate
training, education, and experience to perform the IV placement procedure. No such
requirements exist in Indiana. Indeed, Ed Buss, Superintendent of the Indiana State
Prison in Michigan City, Indiana, in his testimony in the Preliminary Injunction Hearing
in Norman Timberlake, Michael Lambert, David Woods v. Ed Buss, No. 1:06cv1859, on
April 26, 2007, testified that none of the members of the IV team have taken training or
courses in I.V. anesthesia. See Transcript of April 26, 2007 Preliminary Injunction
Hearing [“Transcript”] at 86. Superintendent Buss indicated that IV Team members
merely took a few hours course and, incredibly, he stated that they practiced starting IV’s
on him. The Superintendent testified:
Q. Now your execution team practices on you every month? A. Me and other staff. By practicing, the IV team does. Q. And what they do is they stick a needle in your arm or somewhere on your body? A. Yes. Q. And do they inject any substance into your body? A. No. Q. Do they extract any blood from you? A. No. Q. So they’re just sticking a needle into your arm? A. I’m going to explain that the best way I can. They give me what they call a flash so they know they can start an IV. But no, they don’t go through and inject me with fluids or anything. Or anybody else for that matter. Q. They don’t inject or withdraw? A. No, they don’t withdraw. Q. So you’re getting your vein stuck approximately nine times a month? A. Yeah. Actually I bruise easily too.
Transcript of Preliminary Injunction at 111-12.
Third, while Missouri requires that a physician, nurse or certified emergency
medical technician insert the IV lines, Indiana is content with prison staffs that lack these
qualifications. Moreover, the Indiana Execution Protocol—unlike Missouri’s—does not
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limit IV insertion to a peripheral line, but instead requires that if a peripheral line cannot be inserted, a cut-down must be performed. The Indiana DOC “Procedure for Venous Cut Down” describes in clinical terms an outmoded surgical procedure involving cutting through the skin, using “blunt dissection” to free a vein from its accompanying anatomical structures, and ultimately inserting an intravenous cannula to which an IV line is attached. See Indiana Department of Correction Operation Directive ISP 06-26, March 6, 2007, Appendix A, “Confidential Procedure for Venous Cut Down.”
Petitioner’s expert, Mark Heath, M.D., a Board Certified Anesthesiologist and Assistant Professor of Clinical Anesthesiology at Columbia University, stated in his March 6, 2007, Declaration that:
[A] surgical cut-down on a condemned inmate in the event their injection team is unable to achieve peripheral venous access without first trying the less painful and less invasive method of percutaneous access represents a profound departure from “standard medical methods” that the IDOC purports to apply to venous access. It also constitutes a departure from the standard of care used in executions in other jurisdictions as I am not aware of any other state in the country which now uses a cut down procedure to achieve venous access. Timberlake V. Donahue et al, No. 1:06cv01859 (S.D. Ind.), Document No. 40, Declaration of Mark Heath, M.D., at 4. [Petitioner at bar, Michael Lambert, is an Intervenor in the Timberlake case]. Strangely, the Indiana Execution Protocol merely requires the IV team to “Make four (4) attempts per arm to insert an Angiocath….” Then “if unsuccessful, the I.V. Team…will notify the [physician] to initiate cut-down procedures.” This means that after these four attempts, per arm, cut down begins. No consideration is given to alternate sites or alternate procedures short of a painful and arguably barbaric cut-down: Cut down procedures are an outdated method of achieving venous access for the administration of anesthetic drugs. The cut-down procedure has been virtually
6

completely supplanted by the “percutaneous” technique for achieving central venous access. The percutaneous technique is less invasive, less painful, less mutilating, faster, safer, and less expensive than the cut-down technique….That Indiana intends to use a cut down procedure on Mr. Timberlake if it can not successfully place peripheral IVs after 4 attempts is unconscionable. To use a cut-down as the backup method of achieving IV access would defy contemporary medical standards and would be a violation of any modern standard of decency. The ready availability of a superior alternative technique for achieving central IV access, should it be necessary, means that the IDOC’s adherence to the outdated cut-down method would represent the gratuitous infliction of pain and mutilation to the condemned prisoner. Declaration of Dr. Heath, Id. at 18. This mandated contingency procedure violates the Eighth Amendment prohibition against cruel and unusual punishment. Fourth, Indiana requires no medical equipment to be attached to the condemned person or to be used to monitor the condemned person during the execution process. This is in sharp contrast to the practical use of an electrocardiograph, which Missouri’s protocol requires medical personnel “to attach and monitor” during the execution process. Obviously, the absence of an electrocardiograph deprives Indiana executioners of objective medical information during the execution, and creates a substantial, foreseeable risk of unnecessary pain. Fifth, the Indiana Execution Protocol fails to require that medical personnel supervise the injection of the lethal contents of the syringes by department employees. Rather, the “Injection Team” simply proceeds as follows: “The Injection Team then proceeds, advising the {deleted) by (deleted), after each syringe.” Indiana Department of Correction Operation Directive ISP 06-26, March 6, 2007 at 11. This protocol procedure is at considerable and grave variance with Missouri’s protocol, where the injection process is supervised by medical personnel to avoid errors that pose a substantial,
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foreseeable risk of gratuitous and unnecessary pain. The source of this pain is explained
in great detail in the Declaration of Mark Heath, M.D:
Based on my research into methods of lethal injection used by various states and the federal government, and based on my training and experience as a medical doctor specializing in anesthesiology, it is my opinion stated to a reasonable degree of medical certainty that, given the apparent absence of a central role for a properly trained professional in IDOC’s execution procedure, the characteristics of the drugs or chemicals used, the failure to understand how the drugs in question act in the body, the failure to properly account for foreseeable risks, the design of a drug delivery system that exacerbates rather than ameliorates the risks of error, the IDOC’s lethal injection procedure creates medically unacceptable risks of inflicting excruciating pain and suffering on inmates during the lethal injection procedure.
Declaration of Dr. Heath at 18-19. See also Declaration of Dr. Heath generally,
especially p. 6-7 (Potassium Chloride Causes Extreme Pain), p. 7-10 (Administration of
Neuromuscular Blocking Agents…Causes an Extreme Risk of Suffering). These sections
of Dr. Heath’s Declaration explain in detail the risks of inflicting excruciating pain and
suffering that accompany the use of these drugs by untrained, non-medical personnel, as
Indiana Operation Directive ISP 06-26, March 6, 2007 contemplates.
Sixth, there is no requirement in Indiana, unlike Missouri, that requires that
medical personnel examine the condemned man physically using standard clinical
techniques to confirm that he is unconscious after the injection of the first drug,
thiopental [the drug intended to render the condemned man unconscious] but before the
injection of the potentially excruciatingly painful second and third lethal drugs,
pancuronium bromide and potassium bromide. Instead, Indiana’s Execution Protocol
recites that the physician [others deleted] and the [non-medical and non-medically
trained] injection team will merely monitor the offender “to ensure the surgical depth or
surgical plane is deep enough so that the offender feels no pain and is unconscious.” The
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Indiana Execution Protocol does not require physical monitoring, requires no equipment of any kind, and importantly does not call for the use of any standard clinical techniques, thus posing a substantial and foreseeable risk of gratuitous pain in the execution process..
In addition, the duties of the physician outlined at page 12 of the Indiana ISP 0626 operative directive for execution is completely contradictory to the previouslydescribed (at pages 6) role of the physician at this juncture. Page 6 of the operative directive indicates: “This physician’s duties shall be to pronounce death after the execution has occurred and to perform a cutdown procedure should the I.V. technician be unable to find a vein adequate to insert the Angiocath.” It is uncertain whether this physician in fact has a duty, under this ambiguous protocol, to monitor the level of consciousness of the prisoner, especially in the unexplained absence of any medical equipment that could make it medically possible for a doctor to assess levels of consciousness with any degree of medical competency. In fact, Superintendent Buss acknowledged that an anesthesiologist would need a lot of equipment to monitor for anesthetic awareness, “But that’s a life preservation technique, a medical treatment technique for a process that isn’t what the goal of our process is. Transcript at 219. And he also testified that once the witnesses have come into the observation room, the physician would not come out of the observation room unless “there was a problem with the IV.”2 (Transcript at 224) The physician obviously would not be available to act, as Missouri requires of medical staff, to “examine the prisoner physically, using standard clinical techniques to confirm that he is unconscious.”
2 In addition, Superintendent Buss testified that the physician goes into another room from the execution chamber, and does not come out once the blinds are open between the chamber and the witness viewing room. He noted that once the IV is started and the blinds are open and witnesses escorted in, absent an obvious problem, the doctor does not leave the other room he is in to recheck the IV site. Transcript at 212.
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Ed Buss, also testified in the Preliminary Injunction Hearing that his “medical
advisor” suggested that he use ammonia to determine that the prisoner is unconscious,
and that he intended to use ammonia in future executions as his way of deciding that the
condemned person is unconscious. Transcript at 219.
Dr. Heath, after hearing the Superintendent’s testimony about ammonia, stated:
I have never heard of any anesthesiologist ever using ammonia tablets to assess anesthetic depth or level of consciousness…It’s also an ill-advised method in this context where if a person has a small amount of thiopental, the amount that might keep him asleep for 30 seconds, if you’re testing with ammonia then, they wouldn’t be breathing then. And the ammonia tablets work because when one breathes these noxious fumes into one’s nasal passages where it burns and makes one cough and it’s painful. And so if you’re not breathing, then I think its efficacy would be very limited and questionable.
If a person gets the wrong dose of thiopental because the IV is infiltrating, or what have you, they might be not be breathing for 30 seconds, you test their response to ammonia, no response, you go ahead and give pancuronium bromide, in the meanwhile they wake up. That’s why continuous monitoring of anesthetic depth is essential until the prisoner is actually dead.
Testimony of Dr. Heath, Transcript at 241.
Equities Lean More In Favor Of Lambert Than Woods
In addition, Equities lean more in favor of Lambert than Woods. He was the first
party to intervene. Woods simply shadowed his movements. Lambert intervened while
cert was still pending and before a properly filed request for a successor was filed with
the Indiana Supreme Court. On May 21, 2007, such a request was denied by a 4-1 vote
(see Lambert v. State, -- N.E.2d --, 2007 IND LEXIS 358 (Ind. 2007), after this Court
had set a firm week long trial date for the lethal injection proceeding. Doc. 99 (May
18, 2007 Scheduling Order Setting Trial for 9/17/07).
This Court has proceeded with the assumption Lambert would be present,
requiring the filing of the Case Management Plan and setting the matter for a week long
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trial beginning September 17, 2007. If the trial is going to take a week, clearly the limited evidence presented at Woods’ preliminary injunction hearing is not sufficient.
Because Lambert raises substantial questions concerning the constitutionality of Indiana’s execution procedures for lethal injection, it is appropriate to maintain the status quo until the Court has a chance to consider his claim that the execution protocol lacks sufficient safeguards to ensure that he is not subject to either cruel or unusual punishment as prohibited under the Eighth Amendment during the execution process. “A death sentence cannot begin to be carried out by the State while substantial legal issues remain outstanding.” Barefoot v. Estelle, 463 U.S. 880, 888 (1983). This Court’s setting the matter for a week long trial demonstrates that a substantial legal issue exists as to whether Indiana’s lethal injection procedures constitute cruel and unusual punishment or create an intolerable risk of pain and suffering. This Court has not resolved the merits of Lambert’s claims. “Approving the execution of [Lambert] before his [claim] is decided on the merits would clearly be improper, Barefoot, 463 U.S. at 890, particularly because any judgment in favor of Lambert after his execution would be ineffectual. Thus, Lambert “is entitled to a[n] [injunction] to permit due consideration on the merits.” Barefoot, 463 U.S. at 889.
It is significant to note that because Lambert is farther along (and started sooner than Woods) that he will be deprived of his access to the Courts by Defendant Buss’ actions. Additionally, the denial of injunctive relief will violate Lambert’s first amendment and due process right of access to the courts. If this Court does not grant Lambert injunctive relief, he will be denied his First Amendment and due process right of access to the courts. Lambert filed this suit while his petition for a writ of certiorari was
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pending before the United States Supreme Court and prior to the scheduling of his execution. At the time of filing, no impediments existed to the speedy resolution of the merits of Lambert’s claim. Unless this Court grants a temporary injunction, Lambert’s execution date bars his due process and First Amendment rights of access to the courts on his lethal injection claim.
Due process requires that prisoners be afforded access to the courts in order to challenge unlawful convictions and seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid.
Procunier v. Martinez, 416 U.S. 396, 419 (1974). The First Amendment likewise confers to inmates a right of access to the courts.
Mere formal access to the courts does not comport with the First Amendment. Rather, inmate access to the courts must be adequate, effective, and meaningful. Bounds v. Smith, 430 U.S. 817, 822 (1977). That access to the courts cannot be accomplished when this Court has less than one month to give careful scrutiny to Lambert’s lethal injection claim. By scheduling Lambert’s execution despite knowledge of this suit, the Defendants attempt to truncate and negate these proceedings. Not granting a stay of execution would deny Lambert his First Amendment and due process right of access to the courts.
To preserve death row inmates’ right of access to the courts in general, and Lambert’s right of access to the courts in this particular case, this Court must grant injunctive relief that will remain in effect until it can reach the merits of Lambert’s claim.
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Defendant’s attempt to prevent this court from reaching the merits of plaintiffs’ claims should not be tolerated and constitutes grounds to issue a temporary injunction pending a ruling on the merits of plaintiffs’ claims.
Defendants moved to set Lambert’s execution date and had it set while this litigation was pending and he had fully intervened. But, “a death sentence cannot begin to be carried out by the State while substantial legal issues remain outstanding.” Barefoot, 463 U.S. at 888. Therefore, it is only by granting injunctive relief that the effective presentation and resolution of Lambert’s colorable claims can be ensured. See In re Hearn, 376 F.3d 447 (5th Cir. 2004)(Staying execution to allow investigation of mental retardation claim). Any other form of relief could result in the untenable situation where this Court finds in favor of Plaintiffs on the merits, but cannot grant any relief to Lambert because he was executed. Thus, this Court must grant a temporary injunction barring Lambert’s execution until this Court can resolve the merits. See Barefoot, 463 U.S. at 889. Otherwise, as noted by District Court Judge Karen Caldwell of the Eastern District of Kentucky:
The Court, of course, will not hesitate to exercise its authority to impose injunctive relief in aid of its jurisdiction to decide this case on the merits, and will not abide any effort to circumvent that jurisdiction. But the orderly discovery process contemplated by the Federal Rules of Civil Procedure is adequately adapted to all civil cases, including those related to the death penalty. The Court will therefore adhere to that structure in this case. Moore v. Rees, et al., Case 3:06-cv-00022-KKC (E.D. Ky. June 13, 2006) (ECF Doc. 34) (Attachment 2). Lambert also requests this Court to consider the recent stay grant (May 31, 2007) for an intervenor in Cooey, et al,. v. Taft, et al., Case No. 2:04-cv-1156 (S.D. Ohio May
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31, 2007) (May 31, 2007) (Attachment 1). Judge Gregory L. Frost granted a stay of execution to an intervenor in virtually the same procedural posture as Lambert. In Cooey, the intervenor intervened in February 2007 and the state set his execution date after he intervened. The equities more favor Lambert – he sought to intervene in a case months old, while in Cooey , the case has been pending since 2004. Further, unlike in Cooey, this Court has set the matter for a full trial and Indiana should not be allowed to knowingly take the steps to eliminate plaintiffs in a pending action set for trial in federal court.
B. At the Very Least, This Court Should Stay Lambert’s Execution Pursuant to its Clear Authority to Do So Under the All Writs Act and the Anti-Injunction Act.
In Defendant’s moving for an execution date after Lambert had intervened and the Indiana Supreme Court’s setting of an execution date despite having first been informed that Lambert was now a plaintiff in this federal action, both the Defendant and the Indiana Supreme Court have interfered with this Court’s jurisdiction over this litigation, has frustrated these proceedings, and has disrupted the orderly resolution of this action. The Indiana Supreme Court’s order afforded no respect to this Court’s prior order recognizing that Lambert could properly intervene and that matters will proceed to trial.
Thus, the order sought by Lambert under the All Writs Act, is necessary to preserve this Court’s jurisdiction over a matter properly before it and to preserve the integrity of these proceedings, there is no requirement for the Court to evaluate the four factors applicable to traditional injunctions. See, e.g. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir. 2004)(“The requirements for a preliminary injunction do not apply to injunctions under the All Writs Act because a court’s traditional power to protect its jurisdiction, codified by the Act, is grounded in entirely separate concerns.”);
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see also United States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (affirming grant of injunction under the All Writs Act without regard to traditional four factors); De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 219 (1945) (stating, in reviewing a lower court’s ruling concerning an injunction under the All Writs Act, that it is necessary to ascertain “what is the usage, and what are the principles of equity applicable in [this] case,” without mentioning the traditional four injunction requirements);
The All Writs Act authorizes “[t]he Supreme Court and all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a); . Courts have read the language of this statute broadly. The statute has been found to authorize the issuance of writs to protect “not only ongoing proceedings, but potential future proceedings, as well as already issued orders and judgments.” Klay, 376 F.3d at 1099; see also Adams v. United States, 317 U.S. 269, 273 (1942). Indeed, unless specifically constrained by an act of Congress, the Act authorizes a court to issue writs any time “the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.” Adams, 317 U.S. at 273.
The Anti-Injunction Act serves as a check on the broad authority recognized by the All Writs Act, 28 U.S.C. § 2283. It recognizes and embraces a federal court’s ability to issue injunctive relief “where necessary in aid of its jurisdiction….”28 U.S.C. § 2283. “The All Writs Act and the Anti-Injunction Act are closely related, and where an injunction is justified under one of the exceptions to the latter a court is generally empowered to grant the injunction under the former.” Burr & Forman v. Blair, 470 F.3d 1019, 1027-1028 (11th Cir. 2006)(citation omitted); Winkler v. Eli Lilly & Co., 101 F.3d
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1196, 1202-03 (7th Cir. 1996)(same). Thus, in assessing the propriety of an injunction entered to stop a state court proceeding, the relevant inquiry is whether the injunction qualifies for the exceptions to the Anti-Injunction Act.
Among the circumstances in which federal courts may apply the All Writs Act and the Anti-Injunction Act to enjoin a state court proceeding, or some aspect of a state court proceeding, is when an injunction is necessary: (1) to preserve the federal court’s jurisdiction, (2) “to protect the integrity or enforceability of existing judgments or orders,” and/or (3) to avoid disruption with the orderly resolution of litigation pending before the federal court. See, e.g., Atlantic C.L.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 295 (1970)(“Both exceptions to the general prohibition of [the Anti-Injunction Act] imply that some federal injunctive relief may be necessary to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide that case.”); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1025 (9th Cir. 1998); Brother Records, Inc. v. Jardine, 432 F.3d 939, 944-45 (9th Cir. 2005)(the purpose of the “in aid of jurisdiction” exception is “to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide that case.”).
This Court should follow and cite with approval the Seventh Circuit’s actions in Winkler v. Eli Lilly & Co., 101 F.3d 1196 (7th Cir. 1996). In Winkler, the Seventh Circuit approved of an injunction issued by a district court to protect a discovery order. The Seventh Circuit noted “the Anti-Injunction Act does not bar courts with jurisdiction over complex multidistrict litigation from issuing injunctions to protect the integrity of
16

their rulings, including pre-trial rulings like discovery orders, as long as the injunctions are narrowly crafted to prevent specific abuses which threaten the court's ability to manage the litigation effectively and responsibly.” Winkler, at 1203. Similarly, this Court should act to protect the integrity of its pre-trial rulings; the defendant by urging an execution warrant after Lambert had entered these proceedings and obtaining that warrant after the setting of the trial date by this Court should not be able to influence or manage the litigation by deciding which plaintiffs make the trial date.
Thus, under the All Writs Act as constrained by the Anti-Injunction Act, the federal court may issue such orders as are necessary to enjoin state actors (such as the defendants in this case), who are proceeding under the authority of state court orders, from taking action “which, left unchecked, would have…the practical effect of diminishing the [federal] court’s power to bring the [federal] litigation to a natural conclusion.” Klay, 376 F.3d at 1102; see also Winkler, 101 F.3d at 1203 (used to “prevent specific abuses which threaten the court's ability to manage the litigation effectively and responsibly.”)
At the very least, and even if it denies Lambert’s motion for a preliminary injunction under Rule 65(a), this Court should issue a limited injunction under the All Writs Act and the Anti-Injunction Act. Such injunction should prohibit the defendant and the State of Indiana, and their and its agents, from proceeding with Lambert’s execution until such time as the proceedings relating to the lethal injection challenge have been concluded. C. Conclusion.
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Important issues of federal constitutional law are involved in this case. Lambert
intervened in a timely manner, before he was already under a death warrant. For all of the
above reasons, and in the interests of justice, Lambert respectfully requests that his
motion be granted and that this Court grant Lambert a preliminary injunction prohibiting
the defendant from executing him until this action is finally resolved. The equities
demonstrate that this Court should enter injunctive relief to prevent Lambert’s execution.
Further, because this Court is unable to resolve the merits of Lambert’s claims prior to his
execution, because the matter has been set for a lengthy trial set for September 17, 2007,
a denial of a temporary injunction will result in a violation of Lambert’s due process and
First Amendment right of access to the courts. At the very least, and certainly in the
event a preliminary injunction is denied, the Court should issue a limited injunction under
the All Writs Act and the Anti-Injunction Act prohibiting the defendant and Indiana, and
their and its agents, from proceeding with Lambert’s execution until such time as the trial
is completed and the merits are fully considered.
Respectfully Submitted,
/s/ Laurence E. Komp LAURENCE E. KOMP Attorney at Law P.O. BOX 1785 Manchester, MO 63011 Phone (636) 207 – 7330 Fax (636) 207 – 7351
-and-
ALAN M. FREEDMAN CAROL HEISE Midwest Center for Justice, Ltd. 831 Main Street Evanston, IL 60202 Phone: (847) 492-1563
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Fax: (847) 492-1861
COUNSEL FOR LAMBERT
CERTIFICATE OF SERVICE
I hereby certify that on June 6, 2007, a copy of the foregoing INTEVENOR LAMBERT’S MOTION FOR INJUNCTIVE RELIEF STAYING HIS EXECUTION was filed electronically. Notice of this filing will be sent to the following persons by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
Brent Westerfeld, Esq. bwesterfeld@wkelaw.com
Lorinda Meier Youngcourt, Esq. EVANS & YOUNGCOURT LMYoungcourt@hughes.net
Richard A. Waples, Esq. WAPLES & HANGER Richwaples@aol.com Thomas Quigley, Betsey Isenberg and Stephen Creason,
Deputy Attorneys General, thomas.quigley@atg.in.gov betsy.isenberg@atg.in.gov stephen.creason@atg.in.gov William Van Der Pol Jr. bvander3@insightbb.com
Linda M. Wagoner lmwagoner@mchsi.com
/s/ Laurence E. Komp LAURENCE E. KOMP COUNSEL FOR LAMBERT
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

NORMAN TIMBERLAKE,
Plaintiff,
MICHAEL ALLEN LAMBERT,
Intervenor Plaintiff, vs.
ED BUSS, Superintendent, Indiana State Prison,
Defendant.

) ) ) ) ) ) No. 1:06-cv-1859-RLY-WTL ) ) ) ) ) ) )

Entry Discussing Michael Lambert’s Motion for Preliminary Injunction
Michael Lambert (“Lambert”) is on Indiana’s death row because of his 1990 murder of a Muncie police officer. Indiana law pr escribes that executions shall be carried out by lethal injection. IND. CODE § 35-38-6-1(a). Lambert’s execut ion is set for June 15, 2007, only three days hence. He has joined Norma n Timberlake, also on death row, in challenging the existing lethal injection prot ocol of the Indiana Department of Correction (“DOC”). David Leon Woods ("Woods"), recent ly executed pursuant to the challenged protocol, had also joined in the challenge, and the court is now presented with a sequel, perhaps sooner t han the parties anticipated, to the motion for preliminary injunction of intervenor plaintiff Woods. As used herei n, “defendant” or “Superintendent” refers to Indiana State Prison Superintendent Ed Buss. Through its Entryof June 8, 2007, the court notified the parties that in resolving Lambert’ s motion for preliminary injunction the court would consider, and the parties could do likewise, the evidence and argument presented in conjunction with the motion for preliminar y injunction filed by Woods. This Ent ry constitutes the court’s findings of fact andconclusions of law as to Lambert’s motion.Fed. R. Civ. P. 52(a).
For the reasons explained in this Entry, Lambert’s motion for preliminary injunction must be denied.

Background
The action was filed by Timberlake on December 29, 2006. Lambert sought leave to intervene through a m otion filed on March 1, 2007. This motion, along with a similar motion filed by Woods, was granted on April10, 2007. Woods and Lambert then filed their respective statement of claims on April 17, 2007. This was followed, in Woods’ case, with the filing of his application for a preliminary injunction on April 18, 2007. Proceedings were conducted on Woods’ application for a preliminary injunction. This included an evidentiary hearing, conducted on April 26, 2007. All parties were present by counsel, and the Superintendent was present in person as wellas at the hearing, although only Woods and the Superintendent parti cipated in the hearing. 1 Woods’ application for a preliminary injunction was denied. Timberlake v. Buss, 2007 WL 1280659 (S.D.Ind. May 1, 2007)(Woods I). That denial was affirmed on appeal inWoods v. Buss, 2007 WL 1302119 (7th Cir. May 3, 2007)( Woods II). He was executed on Ma y 4, 2007, and W oods was dismissed as a party in this case on J une 8, 2007, because the action as to him had become moot.
On May 18, 2007, this action was set for trial on September 22, 2007. Three days later, the Indiana Supreme Court set a J une 15, 2007, date for Lambert’s ex ecution. Lambert’s motion for preliminary injunction was filed on June 6, 2007, and has been fully briefed since June 8, 2007. He also sought to recall the mandates issued in his federal habeas challenges. That effort was rejected in Lambert v. Buss, Nos. 03-1015 & 05-2610 (7th Cir. June 12, 2007).
Lambert’s claim is that under Indiana’s execution protocol: (1) no physician, nurse or pharmacist is required tomix the lethal chemicals and ht at unqualified prison staff do this without supervision by appropriate medical per sonnel; (2) the physician’s only duty is to pronounce death and to perform a cut-down procedure if necessary; (3) unqualified prison staff insert the IV lines andthe protocol requires the performance of a cut-down procedure if a peripheral line cannot be inserted; (4) no medical equipment is attached to monitor the offender during the execution process; (5) no medical personnel are required to supervise the injection of the lethal contents; and (6) no medical personnel are required to physically examine the offender using standard clinical techniques to confirm that he is unconscious following injection of the first drug. Lambert claims that these steps will likely cause him to suffer excruciating pain w hen the second or third dr ug is administered. These circumstances, according to Lambert, violatehis rights under the Eighth Amendment to the United States Constitution. The relief Lambert seeks in joining this action is an injunction prohibiting the Superintendent from executing Lambert by the proposed means of lethal injection.
Superintendent Buss has answered Lambert’s claim and has responded to the motion for preliminary injunction.
1Lambert’s counsel presented a point of clarific ation for the court’s consideration at one point.
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Details of the execution are left to the DOC to implement. NI D. CODE § 35-38-6-1(d). The protocol which will b e used in the impending execution is established in Operation Directive ISP 06-26 (March 6, 2007) (hereafter “Directive 06-26”) and in select Indiana statutes. Superintendent Buss was principally responsible for the composition of Directive 06-26, though he consulted various sources in doing so.
There are three chemical stages t o the lethal injection procedure. See Cooey v. Strickland, 479 F.3d 412, 414 (6th Cir. 2007). "The sodium thiopental is designed to anesthetize the prisoner and r ender him unc onscious. Next, the pancuronium bromide paralyzes all of the prisoner's voluntary mu scles but does not affect his sensation, consciousness, or ability to feel pain. Fina lly, the potassium c hloride induces cardiac arrest."
Directive 06-26 is to be implemented through aseries of procedures set forth in the Directive itself. As might be expected, the successful implementation of Directive 06-26 depends on several individuals with distinct responsibilities. Those individuals are sufficiently trained and experienced, and the procedures to guide them in carrying out their responsibilities are sufficiently detailed, so as to not create a significant and unnecessary risk that Lambert will suffer unnecessary pain dunrig the execution process. Directive 06-26 itself and the Superintendent'sapproach to this task show ht at the planning and preparation for Lambert’s execution have been undertaken with great care. By way of illustration:
! The mixture and injection of the chemicalsis carefully arranged by members of the IV team. The chemicals are mixed approximately 40 minutes before they are to be used. All members of the IV team, and some members of the injection team, have now been trained in IV therapy and are now certified to start, maintain and sustain intravenous lines. The injection site is monitored, as is the tubing. A physician is in the immediate vicinity of the execution chamber if needed for either consulta tion, inspection or repair of any aspect of the intravenous line.
! The sequence of the chemical injectionsis directed by the Superintendent, who with trained members of his staff determine when injection of the next chemical is appropriate. If a line becomes infiltr ated, or if there is leakage or stoppage, for example, that situation would be rectified before continuing with either completion of the chemical presently being injected or injection of the next chemical.
! Two complete sets of syringes are prepar ed. One set is used as a backup in the event the first attempt fails. The syringes are numbered and color coded.
! After being escorted to the execution chamber, the offender is placed onto a stationary surgical gurney with his arms ex posed. His arms are fastened to t he gurney at the wrist, and his legs are fastened to the gurney, each with leat her restraints. Bilateral IV fluid drips are established in the veins of the inmate's arms. One line is selected as the line in which the chemicals are placed. The IV line is started with a saline solution.The catheter is held to the arm with tape. The purpose of the first chemical, sodiumpentothal, is to act as ananesthetic. The effectiveness of the sodium pentothal is confirmed before the second chemical is injected. This is done through confirmation t hat the offender has lost consciousness, shows no
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reflex or muscle response and has no res ponse to noxious stimuli (ammonia tablets).
! When the injection process is complete, the physician enters the room to check the offender for signs of life. The actualtime of death is when the physician pronounces death.
As noted in Woods I, there have been 14 ex ecutions by lethal injections at the Indi ana State Prison since 1995, and Superintendent Buss is an experienced prison administrator. He has performed various roles in9 of those 14 executions atthe Indiana State Prison. He has supervised the most recent 3 executions in the State of Indiana as Superintendent, a position he has held since August 2005. These numbers have each increased by one (1) in recent weeks, of course, because of the Woods’ execution itself.
Discussion
Lambert’s claim is brought pursuant to 42 U.S.C. § 1983. InNelson v. Campbell, 541 U.S. 637, 644 (2004), the Supr eme Court held that a condemned prisoner may raise an Eighth Amendment “cruel and unusu al punishment” challenge to a specific ancillary medical procedure that is not a mandatory part of t he execution protocol pursuant to 42 U.S.C. § 1983. In Hill v. McDonough, 126 S. Ct. 2096, 2102 (2006),the Court held that the condemned can challenge the dr ug cocktail under § 1983 so long as he accepts the inevitability of execution.
In the particular context presented by Lambert’s claim, the p ivotal question concerning the merits of this claim is not what is optimally desirable, as, for example, in a surgical setting, but rather what is minimally required to avoid a violation of the Eighth Amendment. See generally Gregg v. Georgia, 428 U.S. 153, 173 (1976) (holding t hat punishments are cruel when they “involve the unnecessary and wanton infliction of pain”).
The United States Supreme Court has never held that execution by lethal injection constitutes cruel and unusual punishment. See, e.g., Stewart v. LaGrand, 526 U.S. 115, 119 (1999). “Indeed, a number of jurisdictions have rejected such claims.”Belisle v. State, 2007 WL 625025, *49 (Ala.Crim.App. 2007)(cit ing cases). Nonetheless, the Eighth Amendment requires that executions, whether by lethal injection or otherwise, be carried out in a manner which does not constitute cruel and unusual punishment.
Hill and Nelson emphasize two critical factors in evaluating whether a stay of execution should issue: (1) whether the inmate has delayed unnecessarily in bringing the claim; and (2) whether the inmate shows a sgi nificant probability of success on the merits. See Hill, 126 S. Ct. 2096;Nelson, 541 U.S. 649-50. Each questionis explored in the setting of Lambert’s application for a preliminary injunction.
"To prevail on a motion for a pr eliminary injunction, the moving party must demonstrate (1) a likelihood ofsuccess on the merits; (2) alack of an adequate remedy at law; and (3) an irreparable harm will result if the injunction is not granted." FoodComm Intern v. Berry, 328 F.3d 300, 303 (7th Cir . 2003) (citations omitted). If the moving party meets the first three requirements, then the district court balances the relative harms that
4

could be caused to either party.Incredible Tech., Inc. v. Virtual Tech., Inc.,400 F.3d 1007, 1011 (7th Cir. 2005). InWoods II, the Court of Appeal noted that this Court inWoods I had:
rejected Woods' claims on two grounds. First, it held that Woods had failed to demonstrate that Indiana's lethal injection method violates the Eighth Amendment prohibition on cruel and unusual punishment. Second, the district court held that the last minute nature of Woods' claims strongly counseled against granting him relief.
Woods v. Buss, 2007 WL 1302119, at *1. This corresponded to a finding that Woods had failed to make an adequate showing as to the first factor for the issuance of a preliminary injunction, as well as the fourth “balanci ng” factor. Lambert’s m otion, as will be seen, suffers from these same infirmities.
Likelihood Of Success on the Merits. “[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, 126 S. Ct. at 2104. The conclusions of law relative to an Eighth Amendment violation vis-a-vis the DOC’s execution protocol in Directive 06-26 set forth in Woods I are adopted by reference as if set forth herein in their entirety. Lambert has not shown a reasonable likelihood of success on the merits of his underlying claim. Two factors support this conclusion.First, both as writtenand as it will be applied, Directive 06-26, does not create a significant and unnecessary risk that Lambert will suffer unnec essary pain during the execution process. Second, the defendant has negated the existence of t he equally necessary subjective element of an Eighth Amendment violation-the requirement of deliberate indifference. The court has found that Directive 06-26 does not create a significantand unnecessary risk that Lambert will suffer unnecessary pain during the execution proce ss. Not only has Lambert failed to offer evidence of deliberate indifference here, butSuperintendent Buss has afirmatively negated the existence of this elementof an Eighth Amendmentviolation. “There is no liability under the Cruel and Unusual Punishments Clause if a prison official has responded reasonably to a risk of harm.” Doe v. Welborn, 110 F.3d 520, 523 (7th Cir. 1997) (citing Farmer). “Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 845.
Lack of an Adequate Remedy at Law. The Supreme Court reiterated in Hill, 126 S. Ct. at 2104, that “a stay of execution is an equitable remedy.” Lambert has no adequate remedy at law. This factor weighs in his favor.
Likelihood Of Irreparable Harm To Plaintiff. Lambert has not shown the existence of irreparable harm through the mere possib ility that some unforseen complication will result in a lingering death causing Lambert to suffer unnecessary pain. He cannot rely on this possibility as the grounds for substantial risk of harm. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947); Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005); Reid v. Johnson, 333 F.Supp.2d 543, 551 (E.D.Va. 2004).
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Balances of the Relative Harms. “Because Lambert seeks injunctive relief, he has the burden of proving by a clearshowing that a balancing of the equities falls in his favor.” See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Lambert claims that the equities lie in his favor in granting hismotion for a preliminary injunction because the Indiana Supreme Court set Lambert’s execution after Lambert intervened and after this matter was set for trial. Lambert filed his motion to intervene in this action on March 1, 2007.
As highlighted in Woods I, the Supreme Court has set out the factors relevant to granting a stay in the context of an impending execution:
A stay is an equitable remedy, and equity must take into consideration the State's strong interest in pr oceeding with its judgment and . . . attempts at manipulation. Thus, before granting a stay, a districtcourt must consider not only the likelihood of success on t he merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, there is a strong equitable per sumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.
Nelson, 541 U.S. at 649-50 (citati ons and quotations omitted) . The Supreme Court has stressed the need to be wary of obvious d ilatory tactics and to guar d against “abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process.” Gomez v. United States Dist. Ct., 503 U.S. 653, 654 (1992)(“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”). With its issuance of Hill, the Supreme Court emphasized that “the federal courts can and should protect states from dilatory . . . suits.”See Hill, 126 S. Ct. at 2104. The Court also highlighted the equitable powesrof the federal courts “to dismiss suits [that are] speculative or filed too late in the day.” Id.; see also Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006).
This is a case where, indisputably, the equities tilt against Lambert as to the timing of his joinder in this case, just as they did against Woods. Consequently, the two critical factors emphasized in Hill and Nelson, whether the inmate has delayed unnecessarily in bringing the claim and whether the inmate shows a significant probability of success on the merits in determining whether to issue a stay, have not been satisfied by Lambert. Lethal injection challenges became common in this country in 2000 and have remained so.See, e.g., Cooper v. Rimmer, 358 F.3d 655 (9th Cir. 2004) (rejecting an Eighth Amendment challenge to lethal-i njection protocol); Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) (same); State v. Webb, 750 A.2d 448 (Conn. 2000) (same); Sims v. State, 754 So.2d 657 (Fla. 2000) (same). Lambert hasbeen on Indiana’s death row since at least early 1997. He was scheduled to be executed on June 22, 2005,but was not executed because a stay of execution was entered on June 17, 2005, by the Seventh Circuit Court of Appeals in No. 05-2610. The parties have not mentioned this fact, but it is this fact which placed Lambert at death’s doorstep two years ago, 21 months before he sought to intervene in this case. By failing to act until March 2007,Lambert ran the risk that an execution date would be set while his challenge to the method of execution lawsuit was pending. See Jones v. Allen, 2007 WL 1140416, at *10 (M.D.Ala. April 17, 2007), aff’d., 485 F.3d 635 (11th Cir. 2007). That risk has come to pass.
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The Supreme Court recognized inHill that “[b]oth the Stateand the victims of crime have an important interest in ht e timely enforcement of a senet nce,” 126 S. Ct. at 2104, and nothing in Hill diminishes or disparages thisinterest. The Court reiterated inHill what it said in Nelson, 541 U.S. at 649-50, ht at a stay of execution is anequitable remedy, not available as a matter of right, and that how federal c ourts considering granting a stay must be “sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill, 126 S. Ct. at 2104. “That interest is heightened when lengthy state and federal proceedings reviewing the conviction have run their course.” Baker v. Saar, 402 F.Supp.2d 606, 608 (D.Md. 2005). That has occurred for Lambert and equity does not stand in the way, either becaus e of his challenge to the lethal injec tion protocol or on any other discernible basis.
When considering the foregoing circumstances, and when considering “the extent to which [Lambert] has delayed unnecessarily in bringing the claim,” Nelson, 541 U.S. at 649-650, and giving appropriate regard to the “strong equitable presumption against the grant of a stay where a claim could have been brought at s uch a time as to allow consideration of the merits without requiring entry of a stay,” id., at 650, knowing that the merits of Lambert’s claim in intervention could not be reached without the entry of a stay, Lambert’s motion for preliminary injunction must be denied on the basis of his delay in bringing (or joining) a challenge to the execution protocol.
Woods I has not been meaningfully distinguished byLambert from his circumstances at present. The Missouri protocol which Lambert champions does not set the constitutional standard, any more than did the testimony of Dr. Heath at the Woods’ evidentiary hearing on April 26, 2007. A case from this c ourt which traveled a similar pat h is Bieghler v. Donahue, No. 06-1300 (S.D.Ind. January 26, 2006) , wherein Chief Judge McKinney considered the § 1983 challenge to the met hod of execution brought by an inmate on Indiana's death row. After finding that this was the proper remedial vehicle, after reciting the standard of its review pursuant to 28 U.S.C. § 1915A(b), and after reviewing t he standard established in Nelson, Judge McKinney denied Bieghler's request for injunctive relief and dismissed the action, explaining: “Bieghler has delayed unnecessarily in seeking relief. The equities now lie with the ability of the State of Indiana to execute the sentence Bieghler received and which has withstood decades of review.” Id., slip op. at p. 3. An immediate appeal was taken. A panel of the Seventh Circuit, with one judge dissenting, stayed Bieghler's execution. 163 Fed.Appx . 419 (7th Cir. January 26, 2006). The case moved forward, and the Supreme Court vaca ted the Seventh Circuit's Order. 126 S. Ct. 1190 (2006). Bieghler's execution then went forward. Although the literal timing of Bieghler's case and that of Lambert are different relative to their anticipated executions, analytically the timing is the same; no relief could be granted without preventing the State from carrying out the executions as scheduled.See also White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005)(affirming distrci t court's dismissal of aprisoner's section 1983 challenge to his execution because he delayed filing the challenge until his execution was imminent despite being on death row for more than six years).
Lambert seeks to avoid his June 15, 2007, execution by invoking the All Writs Act, 28 U.S.C. § 1651(a), which provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and prin ciples of law.” This effort is entirely misplaced, because the All WritsAct is a provision which effecut ates the court’s jurisdiction,
7

not a separate grant of jurisdiction.Green v. Warden, U.S. Penitentiary,699 F.2d 364 (7th Cir. 1983)(“The intent of the Act isto effectuate established jurisdiction, not to enlarge it.”). There is no reas on why the All Writs Act can or should be used to thwart the proper application of the factors associated with the issuance or denialof a preliminary injunction. The same is true, of course, of the Anti-injunction Act, which Lambert also cites.
Conclusion
"A court considering a stay [ of execution] must . . . apply 'a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the me rits without requiring entr y of a s tay.'" Hill v. McDonough, 126 S. Ct. 2096, 2104 (2006)(quotingNelson v. Campbell, 541 U.S. 637, 650 (2004)). Lambert has failed to overcome t hat strong equit able presumption here. In addition, because the evidence shows that im plementing Directive 06-26 is not likely to "involve the unnecessary and wanton infliction of pain" or to “involve torture or a lingering death," Lambert has failed to demonstrate by a preponderance of the evidence that any violation of his federally secured rights is likely to occur in the course of his execution as presently scheduled. This means that he hasnot shown a reasonable likelihood of success on the merits of the underlying claim. He has alsofailed to establish anyof the other factors required for the issuance of a preliminary injunction. Based on the facts and law set forth in this Entry, therefore, Lambert’s motion for preliminary injunction must be and is now DENIED.
IT IS SO ORDERED.

Date: June 12, 2007

_______________________________
RICHARD L. YOUNG, JUDGE United States District Court Southern District of Indiana

Distribution:
Alan M. Freedman MIDWEST CENTER FOR JUSTICE LTD fbpc@aol.com
Carol Rose Heise MIDWEST CENTER FOR JUSTICE LTD fbpc@aol.com
Betsy M. Isenberg INDIANA STATE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov
Laurence E. Komp lekomp@swbell.net
Thomas D. Quigley INDIANA STATE ATTORNEY GENERAL thomas.quigley@atg.in.gov
Richard A. Waples WAPLES & HANGER richwaples@aol.com
Brent Westerfeld bwesterfeld@wkelaw.com
Lorinda Meier Youngcourt EVANS & YOUNGCOURT lmyoungcourt@hughes.net

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

NORMAN TIMBERLAKE,
Plaintiff, vs.
ED BUSS, Superintendent, Indiana State Prison,
Defendant.

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No. 1:06-cv-1859-RLY-WTL

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Entry Discussing Motion for Summary Judgment
Plaintiff Norman Timberlake, who is on deaht row at the IndianaState Prison (“ISP”), challenges the Indiana execution protocol. The Superintendentof the ISP seeks resolution of Timberlake’s challenge through the Entry of summary judgment.
The challenged protocol has been described in the following terms:
The lethal injection procedure . . . , called Operational Directive ISP 06-26, requires the introduction by intravenous catheter of 5 grams of sodium pentothal (an anesthetic to render the prisoner unconscious), followed by 50 mg of sterile saline, followed by 100mg of pancuronium bromide (a paralytic agent), followed by 50 mg of sterile saline, followed by 200 mEq of potassium chloride. The final drug stops the heart. This protocol is the same one used by Indiana to execute Mr. Woods last month.
Lambert v. Buss, ___ F.3d ___, 2007 WL 2265143 (7th Cir. August 9, 2007).
This court has twice found that Indiana’s execution protocol does not violate the objective prong of the Eighth Amendment’s proscription against the imposition of cruel and unusual punishments, and these findings have twice been affirmed on appeal.Id.; Woods v. Buss, ___ F. 3d ___, 2007 WL 1302119 (7th Cir. May 3, 2007)(to be issued as a published opinion per Order of July 27, 2007).

“If the nonmoving party fails toestablish the existence ofan element essential to his case, one on which he would bearthe burden of proof at trial, summary judgment must be granted to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997). Becaus e Timberlake fails to show a genuine issue for trial as to whet her Indiana’s execution protoc ol creates a significant or unnecessary risk that he will suffer unnecessary pain during the execution process, the Superintendent’s motion for summary judgment must be granted.1
Judgment consistent with this Entry shall now issue. The trial setting of September 17, 2007, is vacated.
IT IS SO ORDERED.

Date: 08/16/2007

_______________________________
RICHARD L. YOUNG, JUDGE United States District Court Southern District of Indiana

1Timberlake points out that the prior Eig hth Amendment challenges to the execution protocol were brought and resolved in the contex t of motions for preliminary injunctions of intervenor plaintiffs Woods and Lambert rather than a motion for summary judgment, but in this case this is a distin ction without a difference, and the findings and conclusions reached on the motions for a preliminary injunction are likew ise incorporated here. Furthermore, Timberlake argues that such findings and conclusions are often based on “incomplete evidence and under hurried circumstances.” Such was not the case heer. This court held an extensivehearing on April 26, 2007, on intervenor plaintiff Woods’ motion for preliminary injunction, with counsel for all parties present. Following the hearing, this court iss ued its findings of fact and conclusions of la w pertaining in relevant part to Indiana’s lethal injection protocol. In adopting the reasoning of this court as it s own, the Seventh Circuit explained: “The dist rict court properly considered t he applicable law governing the Eighth Amendment and propelyr applied it toIndiana's lethal injection method.” Woods v. Buss, 2007 WL 1302119 (7th Cir. 2007).

 
 Case 1:06-cv-01859-RLY-WTL Document 127 Filed 08/17/2007 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

NORMAN TIMBERLAKE,
Plaintiff, vs.
ED BUSS, Superintendent, Indiana State Prison,
Defendant.

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No. 1:06-cv-1859-RLY-WTL

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)

AMENDED JUDGMENT
The court, having previously made its rulingsresolving all claims against all parties,
IT IS THEREFORE ADJUDGED that:
1. The claims of David Leon Woods and Mcihael Lambert are dismissed for lack of jurisdiction as moot;
2. The defendant’s motion for summary j udgment as to the c laim of Norman Timberlake is granted and Norman Timberlak e shall take nothing by his amended complaint against his cusot dian, Superintendent Edward Buss; and
3. The claims of Norman Timberlake for injunctive relief dismissed at the outset of the action against defendants other than his custodian are dismissed as redundant and unnecessary.

Date: 08/17/2007
Laura Briggs, Clerk United States District Court
_______________________________ By: Deputy Clerk Deputy Clerk, U.S. District Court

_______________________________
RICHARD L. YOUNG, JUDGE United States District Court Southern District of Indiana

Case 1:06-cv-01859-RLY-WTL Document 127 Filed 08/17/2007 Page 2 of 2
Distribution:
Alan M. Freedman MIDWEST CENTER FOR JUSTICE LTD fbpc@aol.com
Carol Rose Heise MIDWEST CENTER FOR JUSTICE LTD fbpc@aol.com
Betsy M. Isenberg INDIANA STATE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov
Laurence E. Komp lekomp@swbell.net
Thomas D. Quigley INDIANA STATE ATTORNEY GENERAL thomas.quigley@atg.in.gov
William Van Der Pol Jr. bvander3@insightbb.com
Linda M. Wagoner lmwagoner@mchsi.com
Richard A. Waples WAPLES & HANGER richwaples@aol.com
Brent Westerfeld bwesterfeld@wkelaw.com
Lorinda Meier Youngcourt EVANS & YOUNGCOURT lmyoungcourt@hughes.net

 
 Timberlake v. Buss, Not Reported in F.Supp.2d (2007)
2007 WL 1280664 Only the Westlaw citation is currently available.
United States District Court, S.D. Indiana.
Norman TIMBERLAKE, Plaintiff, Michael Allen Lambert, David Leon Woods, Intervenor Plaintiffs,
v. Ed BUSS, Superintendent, Indiana State Prison, Defendant.
No. 1:06-cv-1859-RLY-WTL. | May 1, 2007.
Attorneys and Law Firms
Brent Westerfeld, Richard A. Waples, Waples & Hanger, Indianapolis, IN, Lorinda Meier Youngcourt, Evans & Youngcourt, Huron, IN, for Plaintiff.
Alan M. Freedman, Carol Rose Heise, Midwest Center for Justice Ltd., Evanston, IL, Laurence E. Komp, Manchester, MO, William Van Der Pol, Jr., Martinsville, IN, for Intervenor Plaintiffs.
Betsy M. Isenberg, Thomas D. Quigley, Indiana State Attorney General, Indianapolis, IN, for Defendant.
Opinion
Entry Discussing David Leon Woods’ Motion for Preliminary Injunction
RICHARD L. YOUNG, United States District Judge.
*1 This cause came before the court on April 26, 2007, for a hearing on the motion for preliminary injunction of intervenor plaintiff, David Leon Woods. Mr. Woods was present through his counsel of record and the defendant was present through his counsel of record. In addition, intervenor plaintiff Lambert and plaintiff Timberlake were present through their counsel of record.
This Entry contains the court’s findings of fact and conclusions of law. Fed.R.Civ.P. 52(a).
I. Background
As used herein, “plaintiff” or “Woods” refers to David Leon Woods, and “defendant” or “Superintendent” refers to Indiana State Prison Superintendent Ed Buss.
The action was originally filed by Norman Timberlake, who is also on Indiana’s death row at the Indiana State Prison. Woods and Michael Lambert (“Lambert”) sought leave to intervene through motions filed on March 5, 2007. These motions were granted on April 10, 2007. Woods and Lambert then filed their respective statement of claims on April 17, 2007. This was followed, in Woods’ case, with the filing of his application for a preliminary injunction on April 18, 2007.
Woods’ claim is that the combination of drugs to be used by the Superintendent, in the absence of trained personnel and with inadequate monitoring of Woods’ condition once the procedure is underway, creates a serious risk that the drugs will not be properly administered and that errors in these steps will likely cause Woods to suffer excruciating pain of actual suffocation when the second of the three drugs is given and/or the extreme generalized burning sensation, massive muscle cramping, and cardiac arrest from the third of those chemicals. These circumstances, according to Woods, violate his rights under the Eighth Amendment to the United States Constitution. The relief Woods seeks in joining this action is an injunction prohibiting the
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Timberlake v. Buss, Not Reported in F.Supp.2d (2007)
Superintendent from executing Woods by the proposed means of lethal injection. He does not challenge either his conviction or his sentence and does not seek to prevent the State of Indiana from executing him by lethal injection in a lawful manner. The relief Woods seeks through his application for a preliminary injunction is to preserve the status quo until the merits of his claim (and the claims of his co-plaintiffs) can be established.
Superintendent Buss has answered Woods’ claim and has responded to the application for a preliminary injunction. In addition, Superintendent Buss filed a motion for summary judgment based in part on the argument that Woods failed to exhaust available administrative remedies prior to joining this lawsuit. That motion has been denied through a separate written ruling issued concurrent with this Entry.
The issues which arise from Woods’ application for a preliminary injunction and the Superintendent’s response to it are: 1) whether Woods’ challenge has been timely brought or whether Woods has delayed unnecessarily in seeking relief; and 2) whether Woods shows a significant probability of success on the merits.
II. Findings of Fact
*2 1. Woods has been sentenced to death by an Indiana court. His challenges to his conviction and sentence have been unsuccessful. He is presently confined at the Indiana State Prison in Michigan City. When Woods sought to intervene in this action he had been on death row at the Indiana State Prison for at least 17 years.
2. Woods’ execution has been set to be carried out before dawn on Friday, May 4, 2007. The Order setting that execution date was issued by the Indiana Supreme Court on March 26, 2007.
3. Under Indiana law, death sentences shall be carried out by “intravenous injection of a lethal substance or substances ... in a quantity sufficient to cause the death.” IND.CODE § 35-38-6-1(a). Details of the execution are left to the Indiana Department of Correction to implement. IND.CODE § 35-38-6-1(d).
4. The protocol which will be used in the impending execution is established in Operation Directive ISP 06-26 (March 6, 2007) (hereafter “Directive 06-26”) and in select Indiana statutes. Superintendent Buss was principally responsible for the composition of Directive 06-26, though he consulted various sources in doing so. It is noted in one decision that “a typical lethal injection protocol consists of administering a succession of three drugs to effect the inmate’s death. The first one, sodium pentothal, acts as an anesthetic, while the second, pancuronium bromide, paralyzes the body and prevents the inmate from moving or otherwise showing pain or discomfort. The final chemical, potassium chloride, is what stops the heart and actually causes death.” Hill v. McDonough, 2006 WL 2556938 (N.D.Fla. September 1, 2006) (citing a study published in The Lancet, “Inadequate Anaesthesia in Lethal Injection for Execution,” Vol. 365, The Lancet 1412-14 (April 16, 2005)). The chemicals to be used in the execution of David Woods follow this typical lethal injection protocol. See Bieghler v. State, 839 N.E.2d 691, 695 (Ind.2005): “Three drugs are injected in sequence: sodium pentothal, a fast-acting anesthetic intended to render the prisoner unconscious; pancuronium bromide, which stops a person’s breathing; and potassium chloride, which stops a person’s heart.”
5. There have been 14 executions by lethal injections at the Indiana State Prison since 1995. Superintendent Buss is an experienced prison administrator, having performed various roles in 9 of those 14 executions at the Indiana State Prison. He has supervised the most recent 3 executions in the State of Indiana as Superintendent, a position he has held since August 2005.
6. Directive 06-26 is to be implemented through a series of procedures set forth in the Directive itself. As might be expected, the successful implementation of Directive 06-26 depends on several individuals with distinct responsibilities. Those individuals are sufficiently trained and experienced, and the procedures to guide them in carrying out their responsibilities are sufficiently detailed, so as to not create a significant and unnecessary risk that Woods will suffer unnecessary pain during the execution process. Directive 06-26 itself and the Superintendent’s approach to this task show that the planning and preparation for Woods’ execution have been undertaken with great care. By way of illustration:
*3 a. Woods has undergone a physician’s assessment in recent weeks to determine whether there will be difficulty in locating a suitable site for the intravenous injection. That assessment yielded a prediction that a suitable vein will be found with little or no difficulty.
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Timberlake v. Buss, Not Reported in F.Supp.2d (2007)
b. The mixture and injection of the chemicals is carefully arranged by members of the IV team. The chemicals are mixed approximately 40 minutes before they are to be used. All members of the IV team, and some members of the injection team, have now been trained in IV therapy and are now certified to start, maintain and sustain intravenous lines. The injection site is monitored, as is the tubing. A physician is in the immediate vicinity of the execution chamber if needed for either consultation, inspection or repair of any aspect of the intravenous line.
c. The sequence of the chemical injections is directed by the Superintendent, who with trained members of his staff determine when injection of the next chemical is appropriate. If a line becomes infiltrated, or if there is leakage or stoppage, for example, that situation would be rectified before continuing with either completion of the chemical presently being injected or injection of the next chemical.
d. Two complete sets of syringes are prepared. One set is used as a backup in the event the first attempt fails. The syringes are numbered and color coded.
e. After being escorted to the execution chamber, the offender is placed onto a stationary surgical gurney with his arms exposed. His arms are fastened to the gurney at the wrist, and his legs are fastened to the gurney, each with leather restraints. Bilateral IV fluid drips are established in the veins of the inmate’s arms. One line is selected as the line in which the chemicals are placed. The IV line is started with a saline solution. The catheter is held to the arm with tape. The purpose of the first chemical, sodium pentothal, is to act as an anesthetic. The effectiveness of the sodium pentothal is confirmed before the second chemical is injected. This is done through confirmation that the offender has lost consciousness, shows no reflex or muscle response and has no response to noxious stimuli (ammonia tablets).
f. When the injection process is complete, the physician enters the room to check the offender for signs of life. The actual time of death is when the physician pronounces death.
7. The injunctive relief sought by Woods could not be granted without preventing the State of Indiana from carrying out the execution of Woods on May 4, 2007. That could only be accomplished in the present case through the entry of a stay of that execution. See Resendiz v. Livingston, 2006 WL 1787989 (S.D.Tex. June 26, 2006)(explaining the last-minute challenge to the Texas lethal-injection process as a request for a stay of execution). Indeed, the relief Woods seeks in his application for a preliminary injunction is “a preliminary injunction presenting [sic: preventing] the Defendant from executing him by means of lethal injection protocol under the protocol currently in effect in the State of Indiana.”
*4 8. Any findings of fact which should be treated as conclusions of law are to be treated as such, and any conclusions of law that should be treated as findings of fact should also be treated as such.
III. Conclusions of Law
Based on the foregoing findings of fact, the court makes the following conclusions of law:
1. Woods’ claim is brought pursuant to 42 U.S.C. § 1983. This court has subject matter jurisdiction over the claim pursuant to 28 U.S.C. § 1331, which provides that “[t]he District Courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” He seeks only injunctive relief in this action. His claim is asserted against the Superintendent in his official capacity only. Greenawalt v. Indiana Dept. of Corrections, 397 F.3d 587, 589 (7th Cir.2005) (citing Luder v. Endicott, 253 F.3d 1020, 1024-25 (7th Cir.2001)).
2. To state a claim under § 1983, a plaintiff must allege: 1) that he was deprived of a right secured by the Constitution or laws of the United States; and 2) that the deprivation was caused by a person acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56 (1978).
3. In Nelson v. Campbell, 541 U.S. 637, 644 (2004), the Supreme Court held that a condemned prisoner may raise an Eighth Amendment “cruel and unusual punishment” challenge to a specific ancillary medical procedure that is not a mandatory part of the execution protocol pursuant to 42 U.S.C. § 1983. In Hill v. McDonough, 126 S.Ct. 2096, 2102 (2006), the Court held that the condemned can challenge the drug cocktail under § 1983 so long as he accepts the inevitability of execution. The Superintendent does not challenge the use of § 1983 as the proper statutory vehicle to present Woods’ challenge, nor after Hill and Nelson does it appear open to question. “A suit seeking to enjoin a particular means of effectuating a sentence of
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Timberlake v. Buss, Not Reported in F.Supp.2d (2007)
death does not directly call into question the ‘fact’ or ‘validity’ of the sentence itself-by simply altering its method of execution, the State can go forward with the sentence.” Nelson, 541 U.S. at 644.
4. Section 1983 is not itself a source of substantive rights; instead it is a means for vindicating federal rights elsewhere conferred.” Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.1997) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). Accordingly, “the first step in any [§ 1983] claim is to identify the specific constitutional right infringed.” Albright v.. Oliver, 510 U.S. 266, 271 (1994).
5. In the present case, it is the Eighth Amendment’s proscription against the imposition of cruel and unusual punishment which provides the applicable constitutional protection. Helling v. McKinney, 509 U.S. 25, 31 (1993) (“It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”). To state a conditions of confinement claim, a plaintiff must satisfy two prongs:
*5 [f]irst, the deprivation alleged must be, objectively, “sufficiently serious,” ...; a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities” ... second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” ... To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.”... In prison-conditions cases that state of mind is one of “deliberate indifference” to inmate health or safety.
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). In the particular context presented by Woods’ claim, the pivotal question concerning the merits of this claim is not what is optimally desirable, as, for example, in a surgical setting, but rather what is minimally required to avoid a violation of the Eighth Amendment. See generally Gregg v. Georgia, 428 U.S. 153, 173 (1976) (holding that punishments are cruel when they “involve the unnecessary and wanton infliction of pain”).
6. Hill and Nelson emphasize two critical factors in evaluating whether a stay of execution should issue: (1) whether the inmate has delayed unnecessarily in bringing the claim; and (2) whether the inmate shows a significant probability of success on the merits. See Hill, 126 S.Ct. 2096; Nelson, 541 U.S. 649-50. Each question is explored in the setting of Woods’ application for a preliminary injunction.
7. Because Woods seeks injunctive relief, he has the burden of proving by a clear showing that a balancing of the equities falls in his favor. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
In assessing whether a preliminary injunction is warranted, a court must consider whether the party seeking the injunction has demonstrated that: 1) it has a reasonable likelihood of success on the merits of the underlying claim; 2) no adequate remedy at law exists; 3) it will suffer irreparable harm if the preliminary injunction is denied; 4) the irreparable harm the party will suffer without injunctive relief is greater than the harm the opposing party will suffer if the preliminary injunction is granted; and 5) the preliminary injunction will not harm the public interest.
Kiel v. City of Kenosha, 236 F.3d 814, 815-16 (7th Cir.2000) (citing Platinum Home Mortgage Corp. v. Platinum Fin. Group, Inc., 149 F.3d 722, 726 (7th Cir.1998)).
8. “[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). There is in this context, moreover, a temporal concern of unique significance. In Nelson, the Supreme Court set out the factors relevant to granting a stay in the context of an impending execution:
*6 A stay is an equitable remedy, and equity must take into consideration the State’s strong interest in proceeding with its judgment and ... attempts at manipulation. Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State’s significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.
Nelson, 541 U.S. at 649-50 (citations and quotations omitted). The Supreme Court has stressed the need to be wary of
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Timberlake v. Buss, Not Reported in F.Supp.2d (2007)
obvious dilatory tactics and to guard against “abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process.” Gomez v. United States Dist. Ct., 503 U.S. 653, 654 (1992)(“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”). With its issuance of Hill, the Supreme Court reiterated a state’s “important interest in the timely enforcement of a sentence” and emphasized that “the federal courts can and should protect states from dilatory ... suits.” See Hill, 126 S.Ct. at 2104. The Court also highlighted the equitable powers of the federal courts “to dismiss suits [that are] speculative or filed too late in the day.” Id.; see also Smith v. Johnson, 440 F.3d 262, 263 (5th Cir.2006).
9. This is a case where, indisputably, the equities tilt against Woods as to the timing of his joinder in this case.
a. As noted, Woods was on Indiana’s death row for more than 17 years before joining in this lawsuit. The lawsuit itself was filed in December 2006, three months before Woods filed his motion to intervene. No judicial or legislative event in Indiana caused Woods’ challenge to the lethal injection protocol to become ripe in the past five months.
b. “[A] challenge to a method of execution may be filed at any time after the plaintiff’s conviction has become final on direct review.” Neville v. Johnson, 440 F.3d 221, 222-23 (5th Cir.) (citing White v. Johnson, 429 F.3d 572, 574 (5th Cir.), cert. denied, 126 S.Ct. 601 (2005)), cert. denied, 126 S.Ct. 1192 (2006). Woods’ conviction became final on direct review on June 28, 1991.
c. The court took 35 days to act on Woods’ motion for leave to intervene. Woods took nearly twice as long, 66 days, after Mr. Timberlake filed this lawsuit before filing his motion for leave to intervene. Woods argues that his action is not dilatory because his request to intervene was filed before an execution date was set and that once he was allowed to intervene, Woods, “complete[d] the necessary discovery for the preliminary injunction, proceeded to an expedited hearing, and has complete[d] the evidentiary record.” This argument was clearly rejected in Harris v. Johnson, 376 F.3d 414, 417 (5th Cir.2004). In responding to the same contention raised here, the court stated:
*7 That argument is nothing more than a restatement of the very thing the plaintiff is not entitled to do under Gomez, 503 U.S. at 654, 112 S.Ct. 1652-namely, to wait until his execution is imminent before suing to enjoin the state’s method of carrying it out. The denial of certiorari may well have cast the issue in a new and urgent light for Harris, but it also entitled the state to set a date for, and proceed with, his execution.
Id. (vacating a temporary restraining order and dismissing the § 1983 complaint). Although it was the denial of certiorari which Harris argued was the path-clearing event in Harris, whereas it was the expectation of an execution date being set which Woods assigns to that role in this case, the point is the same: a challenge to the state’s method of execution could have been brought years ago and only now, on the eve of his execution, has Woods sought injunctive relief.
d. The Supreme Court recognized in Hill that “[b]oth the State and the victims of crime have an important interest in the timely enforcement of a sentence,” 126 S.Ct. at 2104, and nothing in Hill diminishes or disparages this interest. The Court reiterated in Hill what it said in Nelson, 541 U.S. at 649-50, that a stay of execution is an equitable remedy, not available as a matter of right, and that how federal courts considering granting a stay must be “sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill, 126 S.Ct. at 2104. “That interest is heightened when lengthy state and federal proceedings reviewing the conviction have run their course.” Baker v. Saar, 402 F.Supp.2d 606, 608 (D.Md.2005).
e. When considering the foregoing circumstances, and when considering “the extent to which [Woods] has delayed unnecessarily in bringing the claim,” Nelson, 541 U.S. at 649-650, and giving appropriate regard to the “strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay,” id., at 650, knowing that the merits of Woods’ claim in intervention could not be reached without the entry of a stay, Woods’ application for a preliminary injunction must be denied on the basis of his delay in bringing (or joining) a challenge to the execution protocol.
10. Even if the court could determine that Woods had asserted his claim in this action in a timely manner (relative to consideration of his application for a preliminary injunction), Woods would not be entitled to preliminary injunctive relief on the grounds that there is not a reasonable likelihood of success on the merits of the underlying claim. This conclusion rests on two conclusions. First, as explained, Directive 06-26, both as written and as it will be applied, does not create a significant and unnecessary risk that Woods will suffer unnecessary pain during the execution process. Second, the defendant has negated the existence of the equally necessary subjective element of an Eighth Amendment violation-the requirement of deliberate indifference.
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Timberlake v. Buss, Not Reported in F.Supp.2d (2007)
*8 11. To expand further on the first element of a viable Eighth Amendment claim, several factors are pertinent:
a. First, several of Woods’ allegations concerning deficiencies in the execution protocol are simply entirely off base, wholly contradicted by the guidelines in Directive 06-26. For example, the allegations in paragraphs 11, 12 and 26 of Woods’ statement of claim cannot actually be said to be at issue here because they are contradicted by the language of Directive 06-26.
b. Second, the court has noted that the objective prong of an Eighth Amendment violation requires a showing of the unnecessary and wanton infliction of pain. The critical question in this case is not what is optimally desirable, as, for example, in a surgical setting, but rather what is minimally required to avoid a violation of the Eighth Amendment. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.1997) (“[a plaintiff] is not entitled to demand specific care. [He] is not entitled to the best possible care. [He] is entitled to reasonable measures to meet a substantial risk of serious harm to [him].”).
c. Third, as an inescapable matter of fact, an execution causes some pain and suffering for an inmate. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947). “Punishments are cruel when they involve torture or a lingering death.” In re Kemmler, 136 U.S. 436, 447 (1890). The court has found that Directive 06-26 does not create a significant and unnecessary risk that Woods will suffer unnecessary pain during the execution process. Woods offers two ripostes to this view. The first is that the standard of care advocated by his expert, Dr. Heath, should either be adopted as the Eighth Amendment standard or adopted in place of the Eighth Amendment standard. Neither position is tenable. The second is that some problem could occur during the Woods execution because certain mishaps have occurred elsewhere during executions by lethal injection and because scenarios can be postulated for which Executive Directive 06-26 gives no specific guidance. Woods cannot, however, build a persuasive case for injunctive relief on events which occurred elsewhere in the absence of a showing that Executive Directive 06-26 shares the flawed procedures in those situations. What he is left with, therefore, is speculation that something will go amiss during his execution. He cannot rely on this possibility as the grounds for creating a substantial risk of harm.
d. The objective prong of the Eighth Amendment’s proscription against the imposition of cruel and unusual punishments is violated in this context only if the execution will involve the unnecessary and wanton infliction of pain, and this can be shown through the existence of protocols or procedures that create an “unnecessary risk” that such pain will be inflicted. Cooper v. Rimmer, 379 F .3d 1029, 1033 (9th Cir.2004). Woods has not made this showing.
12. An Eighth Amendment violation cannot be established without a showing of the subjective prong that the Superintendent will exhibit deliberate indifference in carrying out Executive Directive 06-26. “State officials are deliberately indifferent if they ‘know[ ] of and disregard[ ] an excessive risk to inmate health or safety; the official[s] must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [they] must also draw the inference.’ “ Dunigan v. Winnebago County, 165 F.3d 587, 590-91 (7th Cir.1999) (quoting Farmer, 511 U.S. at 837). Not only has Woods failed to offer evidence of deliberate indifference here, but Superintendent Buss has affirmatively negated the existence of this element of an Eighth Amendment violation. “There is no liability under the Cruel and Unusual Punishments Clause if a prison official has responded reasonably to a risk of harm.” Doe v. Welborn, 110 F.3d 520, 523 (7th Cir.1997) (citing Farmer). “Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 845.
*9 13. Additionally, Woods has not shown the existence of irreparable harm through the mere possibility that some unforseen complication will result in a lingering death causing Woods to suffer unnecessary pain. He cannot rely on this possibility as the grounds for substantial risk of harm. Louisiana ex rel. Francis, 329 U.S. at 464; Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir.2005); Reid v. Johnson, 333 F.Supp.2d 543, 551 (E.D.Va.2004).
14. The last factor the court considers is whether the granting of the stay sought by Woods would serve the public interest. The court cannot find this to be the case because, at least, Woods has shown no likelihood of prevailing on the merits of his claims, and there is significant public interest in the carrying out of lawfully imposed criminal judgments.
15. In summary, a review of the preliminary injunction analysis in this case could readily track the decision of Chief Judge Spencer in Lenz v. Johnson, 443 F.Supp.2d 785 (E.D.Va.2006):
• “First, Lenz cannot establish the likelihood that he would sustain irreparable injury if the preliminary injunction request were denied. As courts have noted, the potential injury must be actual and imminent, and not theoretical or speculative.”
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Timberlake v. Buss, Not Reported in F.Supp.2d (2007)
• “Second, the harm to Defendants if the preliminary injunction were granted is easy to grasp. The Supreme Court in Hill acknowledged the interest states have in enforcing their criminal judgments, and the Court was emphatic in stating that “[t]he federal courts can and should protect [s]tates from dilatory or speculative suits.” [Hill,] 126 S.Ct. [at 2104]. Allowing illegitimate obstructions to the orderly administration of justice would certainly harm Defendants as they try to fulfill their public duties. Moreover, states have a recognized interest in ensuring the timely execution of death sentences. See Calderon v. Thompson, 523 U.S. 538, 556-57, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).”
• “Third, ... Lenz is not likely to prevail on the merits of his Complaint.”
• “Fourth, with respect to the public interest, society’s interest in retribution for criminal activity would erode rapidly if patently dilatory suits were permitted to derail the administration of justice time and time again. Lenz has been facing a sentence of death for almost six years. He has exhausted all state and federal avenues for challenging his sentence and the underlying conviction, yet, curiously, Lenz has raised these lethal injection arguments for the very first time in the instant § 1983 Complaint, filed shortly before his scheduled execution date. This area of law is not new, and Virginia’s lethal injection protocol has not been an ever-changing mystery-certainly not in recent years. The motivation behind Lenz’s last-minute Complaint is obviously to unjustifiably delay the inevitable. The Court finds that the equities weigh heavily in favor of denying Lenz’s request for injunctive relief.”
*10 The court in Lenz then cited Walton v. Johnson, No. 2:06cv258 (E.D.Va.), wherein it had granted a stay of execution, only to find that the Fourth Circuit vacated the stay of execution on the same day on which the stay was imposed. This court can also refer to a case which traveled a similar path and which carries even more weight. In Bieghler v. Donahue, No. 06-1300 (S.D.Ind. January 26, 2006), Chief Judge McKinney considered the § 1983 challenge to the method of execution brought by an inmate on Indiana’s death row. After finding that this was the proper remedial vehicle, after reciting the standard of its review pursuant to 28 U.S.C. § 1915A(b), and after reviewing the standard established in Nelson, Judge McKinney denied Bieghler’s request for injunctive relief and dismissed the action, explaining: “Bieghler has delayed unnecessarily in seeking relief. The equities now lie with the ability of the State of Indiana to execute the sentence Bieghler received and which has withstood decades of review.” Id., slip op. at p. 3. An immediate appeal was taken. A panel of the Seventh Circuit, with one judge dissenting, stayed Bieghler’s execution. 163 Fed.Appx. 419 (7th Cir. January 26, 2006). The case moved forward, and the Supreme Court vacated the Seventh Circuit’s Order. 126 S.Ct. 1190 (U.S. January 27, 2006). Bieghler’s execution then went forward. Although the literal timing of Bieghler’s case and that of Woods are different relative to their anticipated executions, analytically the timing is the same; no relief could be granted without preventing the State from carrying out the executions as scheduled. See also White v. Johnson, 429 F.3d 572, 574 (5th Cir.2005)(affirming district court’s dismissal of a prisoner’s section 1983 challenge to his execution because he delayed filing the challenge until his execution was imminent despite being on death row for more than six years).
IV. Conclusion
“A court considering a stay [of execution] must ... apply ‘a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.’ “ Hill v. McDonough, 126 S.Ct. 2096, 2104 (2006)(quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)). Woods has failed to overcome that strong equitable presumption here. In addition, because the evidence shows that implementing Directive 06-26 is not likely to “involve the unnecessary and wanton infliction of pain” or to “involve torture or a lingering death,” Woods has failed to demonstrate by a preponderance of the evidence that any violation of his federally secured rights is likely to occur in the course of his execution as presently scheduled. This means that he has not shown a reasonable likelihood of success on the merits of the underlying claim. He has also failed to establish any of the other factors required for the issuance of a preliminary injunction. Based on the facts and law set forth in this Entry, therefore, Woods’ application for a preliminary injunction, which is the functional equivalent in the present circumstances of a stay of execution, must be and is now DENIED.
*11 IT IS SO ORDERED.
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 Timberlake v. Donahue, Not Reported in F.Supp.2d (2007)
2007 WL 141950 Only the Westlaw citation is currently available.
United States District Court, S.D. Indiana.
Norman TIMBERLAKE, Plaintiff, v.
J. David DONAHUE, Commissioner, Defendant.
No. 1:06-CV-1859-RLY-WTL. | Jan. 16, 2007.
Attorneys and Law Firms
Brent Westerfeld, Indianapolis, IN, Lorinda Meier Youngcourt, Evans & Youngcourt, Huron, IN, for Plaintiff.
Opinion
Memorandum Concerning Issues and Proceedings at Trial
RICHARD L. YOUNG, United States District Court Judge.
*1 The court issues this Memorandum to review the issues at trial and provide an outline of the analysis the court expects to undertake.
The motions which are pending at the time this Memorandum is issued are (1) the plaintiff’s motion for preliminary injunction, and (2) the defendant’s motion for judgment on the pleadings. As used herein, “plaintiff” refers to Norman Timberlake, and “defendant” or “Superintendent” refers to Indiana State Prison Superintendent Ed Buss.
The case remains set for trial in Indianapolis commencing at 9:30 a.m. on Wednesday, January 17, 2007. The trial setting was issued in conjunction with setting the motion for preliminary injunction for hearing at that time and consolidating trial on the merits with the hearing on the motion for preliminary injunction.
Timberlake’s claim in this case is that the combination of drugs to be used by the Superintendent, in the absence of trained personnel and with no monitoring of Timberlake’s condition once the procedure is underway, creates a serious risk that the drugs will not be properly administered and that “[a]dministrative errors could result, and demonstrably have resulted, in inmates retaining consciousness and suffering severe pain and torture during their execution.” He seeks only injunctive relief in this action. His claim is asserted against the Superintendent in his official capacity only. Greenawalt v. Indiana Dept. of Corrections, 397 F .3d 587, 589 (7th Cir.2005)(citing Luder v. Endicott, 253 F.3d 1020, 1024-25 (7th Cir.2001)). The relief Timberlake seeks through this lawsuit is an injunction prohibiting the Superintendent from executing Timberlake by the proposed means of lethal injection. He does not challenge either his conviction or his sentence and does not seek to prevent the State of Indiana from executing him by lethal injection in a lawful manner.
The issues which arise from this claim are: 1) whether the present challenge has been timely brought or whether Timberlake has delayed unnecessarily in seeking relief, and 2) whether Timberlake shows a significant probability of success on the merits. The Superintendent’s motion for judgment on the pleadings is directed to the first of the foregoing issues.
Timberlake’s conviction and path through various courts from trial through habeas is chronicled in this court’s decision addressing his most recent petition for writ of habeas corpus. Timberlake v. Buss, No. 1:06-cv-1841 (S.D.Ind. January 4, 2007). Reciting that path again is unnecessary, except for noting that his execution has been set to be carried out before dawn on Friday, January 19, 2007.
The threshold inquiry here is to review the proper remedial scheme for the relief Timberlake seeks. “Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a
1

Timberlake v. Donahue, Not Reported in F.Supp.2d (2007)
complaint under ... 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004). As was the case in Hill v. McDonough, 126 S.Ct. 2096, 2101, 2103 (2006), this § 1983 action is controlled by the holding in Nelson v. Campbell, 541 U.S. 637, 644 (2004). Here, as in Nelson and in Hill, Timberlake’s action if successful would not necessarily prevent the State from executing him by lethal injection. The complaint does not challenge the lethal injection sentence as a general matter but seeks instead only to enjoin the Superintendent from executing Timberlake by the proposed means of lethal injection. This confirms that Timberlake’s challenge is properly brought pursuant to 42 U.S.C. § 1983, rather than an action for habeas corpus relief, and the Superintendent does not argue otherwise.1
*2 Hill and Nelson emphasize two critical factors in evaluating whether a stay of execution should issue: (1) whether the inmate has delayed unnecessarily in bringing the claim; and (2) whether the inmate shows a significant probability of success on the merits. See Hill, 126 S.Ct. 2096; Nelson, 124 S.Ct. at 2126.
In Nelson, the Supreme Court set out the factors relevant to granting a stay in the context of an impending execution:
A stay is an equitable remedy, and equity must take into consideration the State’s strong interest in proceeding with its judgment and ... attempts at manipulation. Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State’s significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.
Nelson, 541 U.S. at 649-50 (citations and quotations omitted). The Supreme Court has stressed the need to be wary of obvious dilatory tactics and to guard against “abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process.” Gomez v. United States Dist. Ct. 503 U.S. 653, 654 (1992)(“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”). With its issuance of Hill, the Supreme Court reiterated a state’s “important interest in the timely enforcement of a sentence” and emphasized that “the federal courts can and should protect states from dilatory ... suits.” See Hill, 126 S.Ct. at 2104. The Court also highlighted the equitable powers of the federal courts “to dismiss suits [that are] speculative or filed too late in the day.” Id.; see also Smith v. Johnson, 440 F.3d 262, 263 (5th Cir.2006).
As to the merits of his request for injunctive relief, Timberlake has the burden of proving by a clear showing that a balancing of the equities falls in his favor. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
Ebay, Inc. v. Mercexchange, LLC, 106 S.Ct. 1837, 1839 (2006). “The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court....” Id. When applying this standard, Timberlake’s claim must be separated into two categories: first, his challenge to the protocol in general; second, the application of the protocol to him.
*3 Under Indiana law, death sentences shall be carried out by “intravenous injection of a lethal substance or substances ... in a quantity sufficient to cause the death.” IND. CODE § 35-38-6-1(a). “[A] typical lethal injection protocol consists of administering a succession of three drugs to effect the inmate’s death. The first one, sodium pentothal, acts as an anesthetic, while the second, pancuronium bromide, paralyzes the body and prevents the inmate from moving or otherwise showing pain or discomfort. The final chemical, potassium chloride, is what stops the heart and actually causes death.” Hill v. McDonough, 2006 WL 2556938 (N.D.Fla. September 1, 2006) (citing a study published in The Lancet, “Inadequate Anaesthesia in Lethal Injection for Execution,” Vol. 365, The Lancet 1412-14 (April 16, 2005)).
The protocol which will be used in the impending execution is established in Operation Directive ISP 06-26 (hereafter “Directive 06-26”) and in select Indiana statutes. Timberlake has claimed that Directive 06-26 could cause him severe pain and thereby violate the Eighth Amendment’s prohibition of cruel and unusual punishments. The pivotal question concerning the merits of this claim is not what is optimally desirable, as, for example, in a surgical setting, but rather what is minimally required to avoid a violation of the Eighth Amendment. See generally Gregg v. Georgia, 428 U.S. 153, 173 (1976) (holding
2

Timberlake v. Donahue, Not Reported in F.Supp.2d (2007)
that punishments are cruel when they “involve the unnecessary and wanton infliction of pain”); In re Kemmler, 136 U.S. 436, 447 (1890) (holding that “[p]unishments are cruel when they involve torture or a lingering death”).
As a result of the conference conducted with the parties on the afternoon of January 16, 2007, the following matters were addressed, resolved, and directed:
1. The defendant’s motion for reconsideration filed on January 12, 2007, is granted to the extent that any witness testifying as a member of the execution team will testify in such a manner as to preserve their anonymity and that counsel for the plaintiff will endeavor to eliminate or reduce the desired need for any such testimony through an interview to be conducted between counsel and the Superintendent later in the afternoon of January 16, 2007. The scope of the interview shall be as discussed at the conference and counsel for the defendant may, of course, participate in and be privy to that interview. This also addresses the plaintiff’s concern with incomplete discovery.
2. Counsel for the plaintiff shall report on January 16, 2007, following the interview just outlined, what execution team members remain needed, from the plaintiff’s perspective, at trial. Any such member(s) will be made available by the Superintendent to testify at trial, but will be identified solely in the manner already noted in the course of discovery. The testimony of such individuals is likely to commence at approximately 11:15 a.m., Indianapolis time.
*4 3. An audio-only feed of the trial shall be made accessible to the plaintiff at the Indiana State Prison if reasonable arrangements for that can be made.
4. The court has arranged for a complete transcript of the trial to be available by the close of the day on the day of trial. The parties are to continue to cooperate regarding the exchange of witness and exhibit lists and in any other fashion which will permit the trial to proceed in an efficient fashion.
5. The plaintiff will call as his first group of witnesses attorneys of inmates who have been executed by the State of Indiana in the recent past. One such attorney, Mark Earnest, will be permitted to testify telephonically from New Mexico.
6. The Superintendent’s testimony is expected to begin at approximately 10:30 a.m., Indianapolis time, followed by the testimony of any member of the execution team called by the plaintiff, and followed in turn by the testimony of Barry Nothstine, an employee at the Indiana State Prison.
7. The court will take a noon recess and will re-convene when Dr. Heath is available. The Honorable Teresa Harper will then testify and conclude the plaintiff’s case.
8. The defendant will then call Dr. Amos, medical director of the Indiana Department of Correction, and in the absence of any rebuttal evidence the parties will rest.
9. The parties will be permitted½ hour per side for final arguments, which are expected to begin at approximately 3:00 p.m., Indianapolis time.
10. No videoconference link other than with the Indiana State Prison is anticipated or feasible at this point.
IT IS SO ORDERED.

Footnotes

1

“A suit seeking to enjoin a particular means of effectuating a sentence of death does not directly call into question the ‘fact’ or

‘validity’ of the sentence itself-by simply altering its method of execution, the State can go forward with the sentence.” Nelson v..

Campbell, 541 U.S. 637, 644 (2004).

3

 
 Timberlake v. Buss, Not Reported in F.Supp.2d (2007)
2007 WL 1121333 Only the Westlaw citation is currently available.
United States District Court, S.D. Indiana.
Norman TIMBERLAKE, Plaintiff, Michael Allen Lambert, David Leon Woods, Intervenor Plaintiffs,
v. Ed BUSS, Superintendent, Indiana State Prison, Defendant.
No. 1:06-cv-1859-RLY-WTL. | April 16, 2007.
Attorneys and Law Firms Richard A. Waples, Waples & Hanger, Brent Westerfeld, Indianapolis, IN, Lorinda Meier Youngcourt, Evans & Youngcourt, Huron, IN, for Plaintiff. Alan M. Freedman, Carol Rose Heise, Evanston, IL, Laurence E. Komp, Manchester, MO, William Vanderpol, Jr., Martinsville, IN, for Intervenor Plaintiffs. Betsy M. Isenberg, Thomas D. Quigley, Indiana State Attorney General, Indianapolis, IN, for Defendants. Opinion
Entry Concerning April 13, 2007, Conference
RICHARD L. YOUNG, United States District Judge. *1 The court held a telephonic status conference on April 13, 2007. The reason for this conference was the motion for expedited discovery filed by Intervenor Plaintiff Woods late in the afternoon of April 12, 2007, the broad scope of the materials requested, the unusually short time for compliance which was sought by Woods in his motion, the important and imminent deadlines faced by Woods for certain filings in this case, the subject matter of the requested material, and the record of discovery difficulties which were encountered by the parties prior to the intervention of Woods and Michael Lambert. As established at the conference of April 12, 2007, Woods’ position in this lawsuit is different in a significant respect from that of his co-plaintiffs Norman Timberlake and Michael Lambert. The court determined during the morning of April 13, 2007, a brief conference may be of assistance in addressing the discovery concerns presented by Woods in his motion for expedited discovery. These concerns were understood as relating to the timing and process for discovery sought by Woods, rather than the scope of the discovery requests themselves. Accordingly, only counsel for Woods and for the defendant were notified of and participated in the conference. The parties appeared by the counsel indicated:
Intervenor Woods Linda Wagoner Defendant Superintendent Buss Thomas Quigley On the basis of what was discussed and agreed, as well as on rulings made during the conference, the court issues this Entry pursuant to Rule 16(e) of the Federal Rules of Civil Procedure.
I. Woods’ motion for expedited discovery is granted in part and denied in part, consistent with the following:
1

Timberlake v. Buss, Not Reported in F.Supp.2d (2007)
1. The motion is granted, and it has been understood from the recent discussions in the case (including those at the conference of April 12, 2007), that all plaintiffs’ counsel will be notified as soon as any further revision of the execution protocol is adopted by the Indiana Department of Correction. Mr. Quigley advised, however, that he is no longer in the “chain” of personnel reviewing, recommending or expected to act on any such revisions currently being considered. This means that he will not play a role in decision-making regarding the protocol revision; it does not mean that he will be uninformed when that occurs, and the expectation is precisely the opposite.
2. The motion is granted with respect to the access of Woods’ counsel to material known as “the Bundle.” As used herein, the Bundle refers to the discovery produced by the Indiana Department of Correction in Tom Pruitt v. State of Indiana, Cause No. 15C01-0109-CF-00054, which is described in greater detail on pp. 1-2 of plaintiff Timberlake’s filing in this case on March 21, 2007 (dkt.# 55). Access to the Bundle was conditioned by the defendant on Woods’ counsel’s willingness to sign an agreement limiting the use to which the documents and information within the documents could be put. That limitation does not include a prohibition against discussing the Bundle with co-counsel in this case who have signed similar agreements. That limitation is subject to expansion if (a) the parties agree on proposed expanded use of the documents or informant, or (b) the court authorizes such use based on application and prior notice to the defendant and an opportunity to be heard on the matter. Woods’ counsel indicated that she was agreeable to these conditions. Arrangements were made for her to receive a copy of the Bundle early during the week of April 16, 2007, but court staff was later informed that a second set of the Bundle was located and that counsel for the plaintiff was provided with that second set late in the afternoon.
*2 3. The motion to expedite is in all other respects denied, with counsel for Woods directed to review the Bundle and discovery materials already filed in this case in order to determine whether the information she seeks is within those materials.
II.
In further reference to the Bundle, counsel for the other plaintiffs (Lambert and Timberlake) are also to have access to the Bundle on the same terms as described in paragraph 2 of Part I of this Entry. Counsel for those plaintiffs should, if they wish to have a copy of the Bundle provided to them, contact counsel for the defendant. If not all plaintiffs’ counsel receive the Bundle as described or as contemplated in this Entry, the extent to which those counsel receiving the Bundle may discuss the Bundle with those not receiving the Bundle will have to be determined.
III.
During the course of the conference, counsel for the defendant noted certain matters which the court makes known to all parties and their counsel.
1. The execution protocol to be used at the Indiana State Prison is understood by counsel for the defendant as having been modified from past practices in the following respects:
a. The amount of sodium pentothal to be used has been increased from 2½ to 5 grams.
b. The wheels of the gurney on which the condemned is to be placed have been removed.
2. The execution injection team has been certified in a program conducted in the State of Kentucky in the performance of their role for an execution.
3. The Superintendent of the Indiana State Prison will permit himself to be interviewed by any counsel for the plaintiffs wishing to do so in a simultaneous session for the purpose of collecting information regarding the procedures which have been used at executions in the past and those expected to be used at future executions. This offer does not replace any formal discovery but is in addition to more formal discovery to permit counsel to proceed more efficiently. The subject arose in conjunction with counsel for defendant Woods, so the Woods’ execution date is a necessary factor to be considered in whether and when this opportunity is used.
2

Timberlake v. Buss, Not Reported in F.Supp.2d (2007) IT IS SO ORDERED.
3

 
 Case: 1:06-cv-1859 As of: 11/29/2019 03:59 PM EST 1 of 9
MANDATE,CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:06−cv−01859−RLY−WTL

TIMBERLAKE v. DONAHUE et al Assigned to: Judge Richard L. Young Referred to: Judge William T. Lawrence Case in other court: 7th Circuit, 07−02001
7th Circuit, 07−02378 7th Circuit, 07−03228 Cause: 42:1983 Prisoner Civil Rights Plaintiff
NORMAN TIMBERLAKE

Date Filed: 12/29/2006 Date Terminated: 08/16/2007 Jury Demand: None Nature of Suit: 555 Prisoner Petitions − Prison Condition Jurisdiction: Federal Question
represented by Brent Westerfeld 141 East Washington Street Suite 200 Indianapolis, IN 46204 (317) 257−5200 Fax: (317) 920−9726 Email: blwesterfeld@gmail.com ATTORNEY TO BE NOTICED
Lorinda Meier Youngcourt EVANS & YOUNGCOURT P O Bix 206 Huron, IN 47437−0206 (812)849−9852 Fax: (812) 849−1294 Email: lmyoungcourt@hughes.net ATTORNEY TO BE NOTICED
Richard A. Waples WAPLES & HANGER 410 N. Audubon Road Indianapolis, IN 46219 (317)357−0903 Fax: (317)357−0275 Email: rwaples@wapleshanger.com ATTORNEY TO BE NOTICED

V.
Defendant
J. DAVID DONAHUE Commissioner Indiana Department of Correction

represented by Betsy M. DeNardi INDIANA ATTORNEY GENERAL 302 West Washington Street Indiana Government Center South, Fifth Floor Indianapolis, IN 46204 (317) 232−6231 Fax: (317) 232−7979 Email: Betsy.Isenberg@atg.in.gov ATTORNEY TO BE NOTICED
Thomas D. Quigley INDIANA ATTORNEY GENERAL 302 West Washington Street Indiana Government Center South, Fifth Floor Indianapolis, IN 46204

Case: 1:06-cv-1859 As of: 11/29/2019 03:59 PM EST 2 of 9

(317) 233−3645 Fax: (317) 233−4948 Email: tquigley@idoc.in.gov ATTORNEY TO BE NOTICED

Defendant
ED BUSS Superintendent Indiana State Prison Michigan City, Indiana

represented by Betsy M. DeNardi (See above for address) ATTORNEY TO BE NOTICED

Thomas D. Quigley (See above for address) ATTORNEY TO BE NOTICED

Defendant UNKNOWN EXECUTIONERS

Date Filed 12/29/2006
12/29/2006 12/29/2006 12/29/2006 12/29/2006 12/29/2006 01/03/2007 01/03/2007 01/04/2007 01/04/2007 01/05/2007 01/08/2007 01/08/2007
01/09/2007

# Docket Text
1 COMPLAINT against J. DAVID DONAHUE, ED BUSS, UNKNOWN EXECUTIONERS, filed by plaintiff NORMAN TIMBERLAKE. (Attachments: # 1 Exhibit A Order Setting Date# 2 Exhibit B Letter dated May 2,2003# 3 Exhibit C DOC Operation Directive# 4 Exhibit D Article# 5 Exhibit E Executive Order 06−260# 6 Exhibit F South Bend Medical# 7 Exhibit G Report to St. Anthony's Hospital# 8 Exhibit H Command Center Minutes)(AAM) (Entered: 12/29/2006)
2 CIVIL COVER SHEET, filed by Plaintiff NORMAN TIMBERLAKE. (AAM) (Entered: 12/29/2006)
3 MOTION for Leave to Proceed in forma pauperis, filed by Plaintiff NORMAN TIMBERLAKE. (AAM) (Entered: 12/29/2006)
4 WAIVER OF SERVICE Returned Executed, filed by NORMAN TIMBERLAKE. J. DAVID DONAHUE waiver sent on 12/29/2006. (AAM) (Entered: 12/29/2006)
5 WAIVER OF SERVICE Returned Executed, filed by NORMAN TIMBERLAKE. (AAM) (Entered: 12/29/2006)
6 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (AAM) (Entered: 12/29/2006)
7 NOTICE of Appearance by Thomas D. Quigley on behalf of Defendants J. DAVID DONAHUE, ED BUSS. (Quigley, Thomas) (Entered: 01/03/2007)
8 NOTICE of Appearance by Stephen R. Creason on behalf of Defendants J. DAVID DONAHUE, ED BUSS. (Creason, Stephen) (Entered: 01/03/2007)
9 ENTRY concerning conference of 1/3/07. Signed by Judge Richard L. Young on 1/4/07. (CLL) (Entered: 01/04/2007)
10 NOTICE of Appearance by Betsy M. Isenberg on behalf of Defendants J. DAVID DONAHUE, ED BUSS. (Isenberg, Betsy) (Entered: 01/04/2007)
11 ANSWER to Complaint and Statement of Defenses, filed by J. DAVID DONAHUE, ED BUSS.(Quigley, Thomas) (Entered: 01/05/2007)
12 ENTRY concerning selected matter (See Entry). Signed by Judge Richard L. Young on 1/8/07. (CLL) (Entered: 01/08/2007)
13 RESPONSE to Discovery Request from Norman Timberlake, filed by Defendant ED BUSS. (Attachments: # 1 Exhibit Plaintiff's First Request for Production of Documents# 2 Exhibit Operation Directive ISP 02−04# 3 Exhibit Operation Directive ISP 06−26)(Quigley, Thomas) (Entered: 01/08/2007)
14 MOTION for Preliminary Injunction, filed by Plaintiff NORMAN TIMBERLAKE., (Westerfeld, Brent) (Entered: 01/09/2007)

Case: 1:06-cv-1859 As of: 11/29/2019 03:59 PM EST 3 of 9

01/09/2007 01/09/2007 01/09/2007 01/09/2007 01/10/2007 01/10/2007 01/10/2007
01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/11/2007 01/11/2007 01/11/2007 01/12/2007
01/12/2007

15 EXHIBIT in Support re 14 MOTION for Preliminary Injunction Exhibt 1 in support of motion for preliminary injunction, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/09/2007)
16 EXHIBIT in Support re 14 MOTION for Preliminary Injunction Exhibit 2 in support of motion for preliminary injunction, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/09/2007)
17 EXHIBIT in Support re 14 MOTION for Preliminary Injunction Exhibit 3 in support of motion for preliminary injunction, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/09/2007)
18 EXHIBIT in Support re 14 MOTION for Preliminary Injunction Exhibit 4 in support of motion for preliminary injunction, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/09/2007)
19 MOTION to Strike 14 MOTION for Preliminary Injunction, filed by Defendant ED BUSS., (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 01/10/2007)
20 RESPONSE in Opposition re 14 MOTION for Preliminary Injunction, filed by Defendant ED BUSS. (Quigley, Thomas) (Entered: 01/10/2007)
21 SCHEDULING ORDER:Bench Trial set for 1/17/2007 09:30 AM in room #349 before Judge Richard L. Young. If plaintiff wishes to be produced as a witness at trial, his cousnel shall promptly notify a pro se clerk at 317−229−3950. Signed by Judge Richard L. Young on 1/10/07. (CLL) (Entered: 01/10/2007)
22 ORDER denying 19 Motion to Strike. Signed by Judge Richard L. Young on 1/10/07. (CLL) (Entered: 01/10/2007)
23 EXHIBIT in Support re 14 MOTION for Preliminary Injunction Exhibit 8 in support of Motion for Preliminary Injunction, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/10/2007)
24 EXHIBIT in Support re 14 MOTION for Preliminary Injunction Exhibit 9 in support of Motion for Preliminary Injunction, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/10/2007)
25 MOTION for Judgment on the Pleadings, filed by Defendant ED BUSS., (Quigley, Thomas) (Entered: 01/10/2007)
26 BRIEF/MEMORANDUM in Support re 25 MOTION for Judgment on the Pleadings, filed by Defendant ED BUSS. (Quigley, Thomas) (Entered: 01/10/2007)
27 MOTION to Expedite Discovery, filed by Defendant ED BUSS., (Attachments: # 1 Exhibit Interrogatories to the plaintiff# 2 Text of Proposed Order)(Quigley, Thomas) (Entered: 01/10/2007)
28 Submission supplmenting Motion to proceed in forma pauperis, filed by Plaintiff NORMAN TIMBERLAKE. (Attachments: # 1 Supplement Petitioner's inmate trust account history)(Westerfeld, Brent) (Entered: 01/11/2007)
29 First MOTION to Amend/Correct 14 MOTION for Preliminary Injunction Counsel's Motion to Adopt Pleading filed under ECF registration and passwrd, filed by Plaintiff NORMAN TIMBERLAKE., (Westerfeld, Brent) (Entered: 01/11/2007)
30 RESPONSE to Discovery Request from Plaintiff Timberlake, filed by Defendant ED BUSS. (Attachments: # 1 Exhibit draft procedure)(Quigley, Thomas) (Entered: 01/11/2007)
31 ORDER granting 3 Motion for Leave to Proceed in forma pauperis; granting 29 Motion Amend/Correct Motion for Preliminary Injunction; taking under advisement 25 Motion for Judgment on the Pleadings; granting 27 Motion to Expedite Discovery. Signed by Judge Richard L. Young on 1/12/07. (CLL) Modified docket no. 29 instead of docket no. 14 1/12/2007 (CLL). (Entered: 01/12/2007)
32 Submission of Protocol, filed by Defendant ED BUSS. (Attachments: # 1 Operation Directive ISP 06−26# 2 Appendix O to Operation Directive ISP 06−26)(Isenberg, Betsy) (Entered: 01/12/2007)

Case: 1:06-cv-1859 As of: 11/29/2019 03:59 PM EST 4 of 9

01/12/2007
01/15/2007
01/15/2007 01/16/2007 01/16/2007 01/16/2007 01/16/2007 01/16/2007 01/16/2007 02/09/2007 03/01/2007 03/01/2007 03/01/2007
03/01/2007 03/01/2007 03/05/2007 03/05/2007 03/05/2007 03/06/2007 03/08/2007 03/19/2007 03/20/2007 03/21/2007

33 MOTION for Reconsideration re 31 Order on Motion for Leave to Proceed in forma pauperis,, Order on Motion for Preliminary Injunction,, Order on Motion for Judgment on the Pleadings,,,, filed by Defendant ED BUSS., (Attachments: # 1 Text of Proposed Order)(Quigley, Thomas) (Entered: 01/12/2007)
34 REPLY in Support of Motion re 14 MOTION for Preliminary Injunction Reply to Defendant's Reponse in Opposition to Motion for Preliminary Injunction, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/15/2007)
35 Witness List and Exhibit List, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/15/2007)
36 Witness List and Exhibit List, filed by Defendant ED BUSS. (Isenberg, Betsy) (Entered: 01/16/2007)
37 NOTICE of Appearance by Richard A. Waples on behalf of Plaintiff NORMAN TIMBERLAKE. (Waples, Richard) (Entered: 01/16/2007)
38 ORDER granting in part and denying in part 33 Motion for Reconsideration. Signed by Judge Richard L. Young on 1/16/07. (CLL) (Entered: 01/16/2007)
39 Witness List Amendment to Witness List, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/16/2007)
40 Exhibit List Second Amended Witness and Exhibit List, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/16/2007)
41 Witness List Plaintiff's Report on Witness Availability, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 01/16/2007)
42 NORMAN TIMBERLAKE has made a Partial Payment of $ 4.00. Receipt is #0102. (CLL) (Entered: 02/15/2007)
43 MOTION to Intervene as Plaintiff−Intervenor., (Freedman, Alan) (Entered: 03/01/2007)
44 NOTICE of Appearance by Alan M. Freedman on behalf of Intervenor Plaintiff MICHAEL ALLEN LAMBERT. (Freedman, Alan) (Entered: 03/01/2007)
45 APPLICATION to Proceed without Prepayment of Fees and Affidavit, filed by Intervenor Plaintiff MICHAEL ALLEN LAMBERT. (Attachments: # 1 Certificat of Service for Pauper's Petition)(Freedman, Alan) (Entered: 03/01/2007)
46 NOTICE of Appearance by Carol Rose Heise on behalf of Intervenor Plaintiff MICHAEL ALLEN LAMBERT. (Heise, Carol) (Entered: 03/01/2007)
47 NOTICE of Appearance by Laurence E. Komp on behalf of Intervenor Plaintiff MICHAEL ALLEN LAMBERT. (Komp, Laurence) (Entered: 03/01/2007)
48 First MOTION to Intervene., (Van Der Pol, William) (Entered: 03/05/2007)
49 NOTICE of Appearance by William Van Der Pol, Jr on behalf of Intervenor Plaintiff David Leon Woods. (Van Der Pol, William) (Entered: 03/05/2007)
50 MOTION for Leave to Proceed in forma pauperis, filed by Intervenor Plaintiff David Leon Woods. (Van Der Pol, William) (Entered: 03/05/2007)
51 MOTION to Amend/Correct Leave to proceed in forma pauperis, filed by Intervenor Plaintiff David Leon Woods., (Van Der Pol, William) (Entered: 03/06/2007)
52 NOTICE of Withdrawal of Appearance by Stephen R. Creason on behalf of J. DAVID DONAHUE, ED BUSS (Creason, Stephen) (Entered: 03/08/2007)
53 RESPONSE in Opposition re 43 MOTION to Intervene as Plaintiff−Intervenor, filed by Defendant ED BUSS. (Quigley, Thomas) (Entered: 03/19/2007)
54 RESPONSE in Opposition re 48 First MOTION to Intervene of David Leon Woods, filed by Defendant ED BUSS. (Quigley, Thomas) (Entered: 03/20/2007)
55 RESPONSE to Motion re 43 MOTION to Intervene as Plaintiff−Intervenor, 48 First MOTION to Intervene, filed by Plaintiff NORMAN TIMBERLAKE. (Attachments: #

Case: 1:06-cv-1859 As of: 11/29/2019 03:59 PM EST 5 of 9

03/27/2007 04/10/2007
04/11/2007 04/11/2007 04/11/2007
04/12/2007 04/13/2007 04/16/2007 04/17/2007 04/17/2007 04/17/2007 04/18/2007 04/20/2007 04/23/2007 04/23/2007 04/24/2007 04/24/2007 04/24/2007

1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Westerfeld, Brent) (Entered: 03/21/2007)
56 CASE MANAGEMENT PLAN TENDERED, filed by Plaintiff NORMAN TIMBERLAKE. (Attachments: # 1 Text of Proposed Order Case Managment Plan Summary)(Westerfeld, Brent) (Entered: 03/27/2007)
57 ORDER granting 43 Motion to Intervene; granting 48 Motion to Intervene; granting 50 Motion for Leave to Proceed in forma pauperis; granting 51 Motion to Amend/Correct; denying 14 Motion for Preliminary Injunction; denying 25 Motion for Judgment on the Pleadings. Signed by Judge Richard L. Young on 4/10/07. (CLL) (Entered: 04/10/2007)
58 NOTICE of Appearance by Linda M. Wagoner on behalf of Intervenor Plaintiff DAVID LEON WOODS. (Wagoner, Linda) (Entered: 04/11/2007)
59 SCHEDULING ORDER:Status Conference set for 4/12/2007 11:30 AM in Telephonic before Judge Richard L. Young. Counsel shall call the Court at 317−229−3964. Signed by Judge Richard L. Young on 4/11/07. (CLL) (Entered: 04/11/2007)
60 ENTRY does not approve the tendered cmp. The parties have 21 days to file an amended cmp. Intervenor plaintiffs, Lambert and Woods, have through 4/17/07 to file a statement of claim. The defendant shall have through 4/25/07 to answer plaintiffs' Statements. Signed by Judge Richard L. Young on 4/11/07. (CLL) (Entered: 04/11/2007)
61 MOTION for Discovery Expedited, filed by Intervenor Plaintiff DAVID LEON WOODS., (Attachments: # 1 Exhibit 1# 2 Text of Proposed Order)(Wagoner, Linda) (Entered: 04/12/2007)
62 Minute Order. Proceedings held before Judge Richard L. Young :Telephone Conference held on 4/13/2007.(CLL) (Entered: 04/13/2007)
63 ORDER granting in part and denying in part 61 Motion for Expedited Discovery. Signed by Judge Richard L. Young on 4/16/07. (CLL) (Entered: 04/16/2007)
64 Intervenor COMPLAINT Statement of Claim, filed by MICHAEL ALLEN LAMBERT.(Freedman, Alan) (Entered: 04/17/2007)
65 MOTION For Order to Answer Interrogatories, filed by Intervenor Plaintiff DAVID LEON WOODS., (Attachments: # 1 Exhibit 1# 2 Text of Proposed Order)(Wagoner, Linda) (Entered: 04/17/2007)
66 Intervenor COMPLAINT, filed by DAVID LEON WOODS.(Wagoner, Linda) (Entered: 04/17/2007)
67 MOTION for Preliminary Injunction, filed by Intervenor Plaintiff DAVID LEON WOODS., (Attachments: # 1 Text of Proposed Order)(Wagoner, Linda) (Entered: 04/18/2007)
68 SCHEDULING ORDER:Preliminary Injunction Hearing set for 4/26/2007 09:30 AM in room #349 before Judge Richard L. Young. Signed by Judge Richard L. Young on 4/20/07. (CLL) (Entered: 04/20/2007)
69 ENTRY, SCHEDULING ORDER: Status Conference set for 4/25/2007 11:30 AM in Telephonic before Judge Richard L. Young. Signed by Judge Richard L. Young on 4/23/07. (CLL) (Entered: 04/23/2007)
70 ANSWER to Intervenor Complaint of Michael Allen Lambert and Statement of Defenses, ANSWER to Intervenor Complaint of David Leon Woods and Statement of Defenses, filed by ED BUSS.(Isenberg, Betsy) (Entered: 04/23/2007)
71 NOTICE, filed by Plaintiff NORMAN TIMBERLAKE, re 35 Witness List. Notice Withdrawing Name from Witness List. (Westerfeld, Brent) (Entered: 04/24/2007)
72 Witness List, filed by Intervenor Plaintiff DAVID LEON WOODS. (Wagoner, Linda) (Entered: 04/24/2007)
73 Witness List and Exhibit List, filed by Defendant ED BUSS. (Isenberg, Betsy) (Entered: 04/24/2007)

Case: 1:06-cv-1859 As of: 11/29/2019 03:59 PM EST 6 of 9

04/24/2007 04/24/2007
04/24/2007 04/25/2007 04/25/2007 04/25/2007 04/25/2007 04/25/2007 04/27/2007 04/30/2007
04/30/2007 05/01/2007 05/01/2007 05/01/2007 05/01/2007 05/01/2007 05/01/2007 05/02/2007 05/02/2007 05/02/2007

74 MOTION for Summary Judgment (procedural issues), filed by Defendant ED BUSS., (Quigley, Thomas) (Entered: 04/24/2007)
75 BRIEF/MEMORANDUM in Support re 74 MOTION for Summary Judgment (procedural issues), filed by Defendant ED BUSS. (Attachments: # 1 Affidavit Declaraton of Ed Buss# 2 Affidavit Declaration of Barry Nothstine# 3 Affidavit Declaration of Howard Morton)(Quigley, Thomas) (Entered: 04/24/2007)
76 Exhibit List, filed by Intervenor Plaintiff DAVID LEON WOODS. (Wagoner, Linda) (Entered: 04/24/2007)
77 MOTION to Produce Documents, filed by Intervenor Plaintiff DAVID LEON WOODS., (Attachments: # 1 Exhibit 1# 2 Text of Proposed Order)(Wagoner, Linda) (Entered: 04/25/2007)
78 RESPONSE to Discovery Request from David Woods, filed by Defendant ED BUSS.(Quigley, Thomas) (Entered: 04/25/2007)
79 Witness List, filed by Intervenor Plaintiff DAVID LEON WOODS. (Wagoner, Linda) (Entered: 04/25/2007)
80 RESPONSE in Opposition re 67 MOTION for Preliminary Injunction, filed by Defendant ED BUSS. (Quigley, Thomas) (Entered: 04/25/2007)
81 ORDER denying 65 Motion for order to answer interrogatories; denying 77 Motion to Produce documents. Signed by Judge Richard L. Young on 4/25/07. (CLL) (Entered: 04/25/2007)
82 MINUTE ENTRY on 4/26/07 hearing on the application of intervenor plaintiff Woods' for a preliminary injunction. (See Entry) Signed by Judge Richard L. Young on 04/26/2007. (TMA) (Entered: 04/27/2007)
83 RESPONSE in Opposition re 74 MOTION for Summary Judgment (procedural issues), 67 MOTION for Preliminary Injunction, filed by Intervenor Plaintiff DAVID LEON WOODS. (Attachments: # 1 Exhibit # 2 Exhibit)(Van Der Pol, William) (Entered: 04/30/2007)
84 TRANSCRIPT of Proceedings held on April 26, 2007 before Judge Richard L. Young. Court Reporter: Pat Cline. (CLL) (Entered: 04/30/2007)
85 REPLY in Support of Motion re 74 MOTION for Summary Judgment (procedural issues), filed by Defendant ED BUSS. (Quigley, Thomas) (Entered: 05/01/2007)
86 ORDER denying 74 Motion for Summary Judgment. Signed by Judge Richard L. Young on 5/1/07. (CLL) (Entered: 05/01/2007)
87 Surreply re 67 MOTION for Preliminary Injunction Response to Defendant's Reply, filed by Intervenor Plaintiff DAVID LEON WOODS. (Van Der Pol, William) (Entered: 05/01/2007)
88 MOTION for Leave to File Response to Defendant's Reply, filed by Intervenor Plaintiff DAVID LEON WOODS., (Van Der Pol, William) (Entered: 05/01/2007)
89 ORDER denying as moot 88 Motion for Leave to File Response to Defendant's Reply. Signed by Judge Richard L. Young on 5/1/07. (CLL) (Entered: 05/01/2007)
90 ORDER denying 67 Motion for Preliminary Injunction. Signed by Judge Richard L. Young on 5/1/07. (CLL) (Entered: 05/01/2007)
91 NOTICE OF APPEAL as to 86 Order on Motion for Summary Judgment, 90 Order on Motion for Preliminary Injunction, filed by Intervenor Plaintiff DAVID LEON WOODS. (Van Der Pol, William) (Entered: 05/02/2007)
92 MOTION for Leave to Appeal in forma pauperis, filed by Intervenor Plaintiff DAVID LEON WOODS. (Van Der Pol, William) (Entered: 05/02/2007)
93 MOTION to Stay re 86 Order on Motion for Summary Judgment, 90 Order on Motion for Preliminary Injunction, filed by Intervenor Plaintiff DAVID LEON WOODS., (Van Der Pol, William) (Entered: 05/02/2007)

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05/02/2007 05/02/2007 05/02/2007 05/02/2007 05/02/2007 05/18/2007 05/21/2007 05/25/2007 05/29/2007 05/29/2007 05/31/2007 06/06/2007 06/07/2007 06/08/2007
06/08/2007
06/08/2007

94 DOCKETING STATEMENT by DAVID LEON WOODS re 91 Notice of Appeal (Van Der Pol, William) (Entered: 05/02/2007)
95 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 91 Notice of Appeal. In addition, Parties' Short Record, Instructions, and Designation of Record information attached. (TMA) (Entered: 05/02/2007)
96 ORDER GRANTING 92 Motion for Leave to Appeal in forma pauperis; denying 93 Motion to Stay. (See Entry) Signed by Judge Richard L. Young on 05/02/2007. (TMA) Modified on 5/2/2007 (TMA). (Entered: 05/02/2007)
97 Transmitted Entire Record on Appeal to US Court of Appeals re 91 Notice of Appeal, via email as pdf documents. (TMA) (Entered: 05/02/2007)
98 USCA Case Number 07−2001 for 91 Notice of Appeal filed by DAVID LEON WOODS. (TMA) (Entered: 05/02/2007)
99 SCHEDULING ORDER:Bench Trial set for 9/17/2007 09:30 AM in room #349 before Judge Richard L. Young. The Court allots 4 days to try this case. Signed by Judge Richard L. Young on 5/18/07. (CLL) (Entered: 05/18/2007)
100 ENTRY directing further proceedings. Signed by Judge Richard L. Young on 5/21/07. (CLL) (Entered: 05/21/2007)
101 CASE MANAGEMENT PLAN TENDERED, filed by Plaintiff NORMAN TIMBERLAKE. (Attachments: # 1 Appendix Magistrate summary)(Westerfeld, Brent) (Entered: 05/25/2007)
102 MOTION to Withdraw as Attorney, filed by Intervenor Plaintiff DAVID LEON WOODS. (Attachments: # 1 Text of Proposed Order)(Wagoner, Linda) (Entered: 05/29/2007)
103 MANDATE of USCA as to 91 Notice of Appeal filed by DAVID LEON WOODS − The district court's decision denying Woods' motion for preliminary injunction is AFFIRMED. Woods' application for a Stay of Execution is DENIED, in accordance with the decision of the USCA entered on 5/3/07. (TMA) (Entered: 05/31/2007)
104 ENTRY−−The directions in Part II of the May 21, 2007, Entry directing intervenor plaintiff Lambert to respond to the pending motion for summary judgment is vacated. Signed by Judge Richard L. Young on 5/31/07. (CLL) (Entered: 05/31/2007)
105 MOTION for Preliminary Injunction, filed by Intervenor Plaintiff MICHAEL ALLEN LAMBERT., (Attachments: # 1 Exhibit Cooey Stay Order# 2 Exhibit Moore Order# 3 Text of Proposed Order)(Komp, Laurence) (Entered: 06/06/2007)
106 ENTRY − A scrivener's error exists in the Entry issued on 5/31/07. The error is corrected pursuant to Rule 60(a) of the Federal Rules of Civil Procedure as follows: The word "are" is substituted for the word "is" in the first sentence of the Entry. Signed by Judge Richard L. Young on 06/07/2007. (TMA) (Entered: 06/07/2007)
107 ENTRY CONCERNING SELECTED MATTERS − DISMISSAL − The motion to withdraw filed by one of Intervenor plaintiff Woods' attorneys on 5/29/07, reveals that Woods was executed, as had been scheduled, on 5/04/07. Because Woods sought only injunctive relief through his intervention in this action and because that is no longer available to him in this action, his claim is moot and he is dismissed as a party. 102 Attorney Wagoner's MOTION to Withdraw as Attorney for DAVID LEON WOODS is DENIED AS MOOT. Signed by Judge Richard L. Young on 06/08/2007. (TMA) (Entered: 06/08/2007)
108 ENTRY AND NOTICE − In resolving intervenor plaintiff Lambert's motion for preliminary injunction the court will consider, and the parties may do likewise, the evidence and argument presented in conjunction with the motion for preliminary injunction filed by intervenor plaintiff David Leon Woods. Signed by Judge Richard L. Young on 06/08/2007. (TMA) (Entered: 06/08/2007)
109 RESPONSE in Opposition re 105 MOTION for Preliminary Injunction, filed by Defendant ED BUSS. (Quigley, Thomas) (Entered: 06/08/2007)

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06/08/2007 06/12/2007 06/13/2007 06/13/2007 06/13/2007 06/14/2007 06/14/2007 07/09/2007
07/12/2007
07/12/2007 07/30/2007
07/30/2007 07/31/2007 08/09/2007
08/10/2007 08/16/2007 08/16/2007

110 REPLY in Support of Motion re 105 MOTION for Preliminary Injunction, filed by Intervenor Plaintiff MICHAEL ALLEN LAMBERT. (Komp, Laurence) (Entered: 06/08/2007)
111 ENTRY denying 105 Lambert's Motion for Preliminary Injunction. (See Entry) Signed by Judge Richard L. Young on 06/12/2007. (TMA) (Entered: 06/12/2007)
112 NOTICE OF APPEAL as to 111 Order on Motion for Preliminary Injunction, filed by Intervenor Plaintiff MICHAEL ALLEN LAMBERT. (Komp, Laurence) (Entered: 06/13/2007)
113 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 112 Notice of Appeal. In addition, Parties' Short Record, Instructions, and Designation of Record information attached. (TMA) (Entered: 06/13/2007)
114 USCA Case Number 07−2378 for 112 Notice of Appeal filed by MICHAEL ALLEN LAMBERT. (CBU) (Entered: 06/13/2007)
115 MOTION for Summary Judgment upon Claim of Norman Timberlake, filed by Defendant ED BUSS., (Quigley, Thomas) (Entered: 06/14/2007)
116 BRIEF/MEMORANDUM in Support re 115 MOTION for Summary Judgment upon Claim of Norman Timberlake, filed by Defendant ED BUSS. (Quigley, Thomas) (Entered: 06/14/2007)
117 MANDATE of USCA as to 112 Notice of Appeal filed by MICHAEL ALLEN LAMBERT − The court adopts Judge Young's decision as its own. And with that, Lambert's motion for a stay of execution must be DENIED, in accordance with the decision of the USCA entered on 6/14/07. (Long record had been transmitted electronically.) (TMA) (Entered: 07/10/2007)
118 ENTRY DISMISSES Lambert's claim as moot and DISMISSES him as a party. The representation of Lambert by his attorneys in this action is now terminated. The CMP tendered on 5/25/07 is APPROVED with modifications. Plaintiff shall respond to the pending motion for summary judgment on or before 7/30/07. Signed by Judge Richard L. Young on 7/12/07. (CLL) (Entered: 07/12/2007)
DISMISSAL − MICHAEL ALLEN LAMBERT terminated. Signed by Judge Richard L. Young on 7/12/07. (CLL) (Entered: 07/12/2007)
119 RESPONSE in Opposition re 115 MOTION for Summary Judgment upon Claim of Norman Timberlake, filed by Plaintiff NORMAN TIMBERLAKE. (Attachments: # 1 Exhibit Exhibit 1 Declaration of Dr. Mark Heath# 2 Exhibit Exhibit 2 Declaration of Steven Schutte)(Westerfeld, Brent) (Entered: 07/30/2007)
120 First MOTION for extension of time to complete discovery, filed by Plaintiff NORMAN TIMBERLAKE., (Attachments: # 1 Text of Proposed Order Order granting extension to complete discovery)(Westerfeld, Brent) (Entered: 07/30/2007)
121 REPLY in Support of Motion re 115 MOTION for Summary Judgment upon Claim of Norman Timberlake, filed by Defendant ED BUSS. (Quigley, Thomas) (Entered: 07/31/2007)
122 ORDER granting in part and denying in part 120 Motion for extension of time to 9/5/07 to respond to discovery; the motion is denied as to the parties authorized to conduct additional discovery. Signed by Judge Richard L. Young on 8/9/07. (CLL) (Entered: 08/09/2007)
123 Witness List and Exhibit List (preliminary), filed by Defendant ED BUSS. (Quigley, Thomas) (Entered: 08/10/2007)
124 ORDER granting 115 Motion for Summary Judgment. The trial setting for September 17, 2007 is hereby VACATED. Signed by Judge Richard L. Young on 8/16/07. (CLL) (Entered: 08/16/2007)
125 CLOSED JUDGMENT in favor of defendant against plaintiff. Plaintiff take nothing by his complaint. Signed by Judge Richard L. Young on 8/16/07. (CLL) (Entered: 08/16/2007)

Case: 1:06-cv-1859 As of: 11/29/2019 03:59 PM EST 9 of 9

08/17/2007 08/17/2007 09/17/2007 09/18/2007 09/19/2007 09/26/2007 01/02/2008
01/09/2008

126 ORDER directs issuance of amended judgment. Signed by Judge Richard L. Young on 8/17/07. (CLL) (Entered: 08/17/2007)
127 AMENDED JUDGMENT in favor of Defendants against Plaintiffs. Signed by Judge Richard L. Young on 8/17/07. (CLL) Additional attachment(s) added on 8/20/2007 (CLL). (Entered: 08/17/2007)
128 NOTICE OF APPEAL as to 126 Order, 124 Order on Motion for Summary Judgment, 127 Judgment, 125 Closed Judgment, filed by Plaintiff NORMAN TIMBERLAKE. (Westerfeld, Brent) (Entered: 09/17/2007)
129 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 128 Notice of Appeal. In addition, Parties' Short Record, Instructions, and Designation of Record information attached. (TMA) (Entered: 09/18/2007)
130 USCA Case Number 07−3228 for 128 Notice of Appeal filed by NORMAN TIMBERLAKE. (Attachments: # 1 Fee Notice and Order)(TMA) (Entered: 09/19/2007)
131 DESIGNATION of Record on Appeal by NORMAN TIMBERLAKE re 128 Notice of Appeal (Attachments: # 1 Docket Sheet)(Westerfeld, Brent) (Entered: 09/26/2007)
132 MANDATE of USCA as to 128 Notice of Appeal filed by NORMAN TIMBERLAKE − Appeal #07−3228 − The judgment of the District Court is VACATED and the case is REMANDED with instructions to dismiss for lack of a case or controversy, in accordance with the decision of the USCA entered on 12/05/07. (Record w/USDC.) (TMA) (Entered: 01/04/2008)
133 ENTRY dismisses action in conformity with appellate mandate. Signed by Judge Richard L. Young on 1/9/2008.(CLL) (Entered: 01/09/2008)

Case #: 1:06−cv−01859−RLY−WTL