IN THE U~ITED STATES DISTRlCT COURT FOR THE DISTRlCT OF DELAWARE

ROBERT W. JACKSON, III,
Plaintiff,
-against-
STANLEY W. TAYLOR, JR., Commissioner, Delaware Department of Correction; THOMAS L. CARROLL, Warden, Delaware Correctional Center; PAUL HOWARD, Bureau Chief, Delaware Bureau of Prisons; and OTHER UNKNOWN STATE ACTORS RESPONSIBLE FOR AND PARTICIPATING IN THE CARRYING OUT OF PLAINTIFF'S EXECUTION, All in their Individual and Official Capacities,

Civil Action No.
o 6 - 30 0
Chief .Judge Sue L. Robinson
Emergency Action Execution Scheduled for Midnight on May 19, 2006

Defendants.

CIVIL RIGHTS COMPLAINT PURSUANT TO 42 U.S.C. § 1983
INTRODUCTIO:".' AND NATURE OF' ACTIo:".'
I. Absent this Court's intervention, Plaintiff will be subjected to an execution via an unconstitutionally administered lethal injection. The cuneni methods used by Defendants to carry out executions are all but certain to cause barbaric and unnecessary levels of pain and suffering, in violation of the Eighth and

Fourteenth Amendments to the United States Constitution. As alleged herein, the
maImer in which Defendants intend to execute Plainti=f would violate the standard
of care used to insure the comfort ofa dog being put down by a doctor of veterinarian
medicine. Just last week, an execution in Ohio, which used the same combination of
lethal injection drugs as is used in Delaware, demonstrated the type of
unconstitutional pain and suffering that can occur during a botched execution by
lethal injection:
"It don't work. It don't work," Joseph Lewis Clark shouted five times, raising his head and body, drawing taught the restraints that kept him on the executioner's table. 'They're not working."
For the first time since Ohio reinstituted the death penalty in
1999, gn exeQution by lethal injection of a convicted murderer went
aw!:Yin m<;l1~j§. In the end, however, the result was the same. Clark, 57, became the 21 st inmate to die at the state's hands and the second in 2006.
There was nothing routine, however, about what happened in the death chamber at the Southern Ohio Correctional Facility.
** *
It was Clark's struggle against death that stood out. Even in his final moments, Q..gQod hour: lli1d a halCafter hew'l,§5llJ?!2Qsed to be dead, Clark raised his head more than a dozen times as the three-drug fatal cocktail was pumped into a vein.
"This has never happened before," Andrea Dean, a department spokeswoman, told media witnesses during the execution while Clark's groans cOllld be heard behind a drawn curtain.
2

Kosr-jU, Paul E., "Execution of Joseph Lewis Clark fails to go smoothly," Copley News Service, May 2, 2006 (emphasis added).l
2. Plaintiff, Robert W. Jackson, III, is a death-sentenced prisoner scheduled to be executed by the State of Delaware on May 19, 2006. He blings this action through undersigned counsel pursuant to 42 U.s.C. § 1983. Plaintiff seeks preliminary and final injunctive relief and a declaratory judgment regarding Defendants' procedure for canying out his execution through lethal injection. That procedure is wholly inadequate to ensure that MI. Jackson's death will not be excruciatingly painful, torturous, and cruel, in violation ofMr. Jackson's rights under the Eighth and Fourteenth Amendments to the United States Constitution. The procedures by which Defendants intend to execute Plaintiff also violate various Delaware state laws, rules and regulations, and, accordingly, Plaintiffalso moves for relief based on pendant state claims.
3. On January 18th, 2006, the Superior Court ofthe State ofDelaware, :.Jew Castle County, held an office conference regarding Plaintiff's case. At that time, Plaintiffs court-appointed counsel (Thomas Foley, Esq.) erroneously informed the Judge that there would be no further litigation related to Plaintiff s convictions, death sentence or execution. See Jacksotl v. CJlIToll, No. 04-9012 (3d CiI. May 2, 2006),
·The author was a media witness to the execution of Joseph Lewis Clark.
3

slip op. at 2 (explaining that after the setting ofthe May 19 execution date "the office of the Federal COlwnunity Defender has entered an appearance" and "Jackson explains that the only reason why the execution date was setas early as May 19,2006 is that after we denied his request for a certificate of appealability, counsel- Thomas M. Foley, Esq. - erroneously represented in state court that Jackson would not pursue further litigation.").
4. Undersigned counsel are new to Mr. Jackson's case. Sce id. Pursuant to authorization received from the Administrative Office ofthe United States Courts, the Federal Community Defender Office for the Eastern District of Pennsylvania ("Community Defender") has been asked to render assistance to capital defense counsel in Delaware federal habeas corpus proceedings. Undersigned counsel (Michael Wiseman) met with this Court on March 13, 2006, along with Penny Marshall, Federal Public Defender for the District ofDelaware, Joseph Miller, First Assistant Federal Defender tor the Co:rnrnunity Defender, Kevin O'Connell, Assistant State Public Defender, and the Honorable Jan R. Jurden, Judge of the Superior Court of Delaware. At that time, this Court was advised of the Administrative Office's request that the Connnunity Defender lend such assistance to the Delaware Bar, and the Community Defender sought the approval of this Court for this endeavor. Subsequently, the Community Defender was authorized to render such assistance, and
4

its staffbegan work on a number ofDelaware capital post-conviction cases, including this one.
5. On March 31, 2006, Billy H. Noias, an Assistant Federal Defender employed by the Community Defender, entered his appearance as counsel for ML Jackson in the United States Supreme Court. Prior to that day, no attorney from the Community Defender had worked on Mr. Jackson's case.
6. This Complaint is being filed within six weeks of the Community Defender's involvement with Plaintiff Jackson. Community Defender counsel have acted with dispatch in bringing this litigation to this Court. Plaintiffs ability to bring this Complaint even more quickly has been hampered by Defendants' refusal to provide Plaintiffwith the information he has requested about the actual protocols the Delaware Department ofCorrection (hereinafter, "DOC") will follow to carry out Mr. Jackson's execution.
7. Delaware's execution statute, 11 Del. C. § 4209 (f), is notable for its vagueness. Speaking in the broadest terms, it says only that Plaintiffs death sentence shall "be inflicted by intravenous injection of a substance or substances' in a lethal quantity sufficient to cause death and until such person sentenced to death is dead," The statute prescribes no specific drugs, substances, dosages, drug combinations, or the manner ofintravenous line access to be used in the execution process; The statute
5

does not prescribe any certification, training, or licensure requirement for those participating in the execution process. It does not indicate the types of persOImel necessary for the constitutional carrying out of the execution. Contrary to reality, it decrees that "the administration of the required lethal substance or substances ... shall not be construedJo be the practice of medicine..." id., even though to be done without unconstitutionally inflicting enormous pain and suffering, it requires a high degree of medical knowledge and expertise. The statute vests in Defendant Taylor plenary authority to establish and then change, at will, the methods, drugs, personnel and every other aspect of the execution: "such execution procedure shall be detem1ined and supervised by the Commissioner of the Departu1ent of Correction" id., "Certain procedures are mandated by law while others are left to the discretion of the Department of Correction. ,,2
8. Defendants have refused all requests by Plaintiff and his counsel to secure information about the specific protocol to be used in executing him. Nevertheless, Plaintiffhas been able to discover limited information about the lethal injection protocol by studying the procedure used in past executions, autopsy reports of prisoners who have been executed, and the DOC protocol that was in effect in
2http://www.state.de.uslcorrectiinformation!deathrowJlistory. shtm! at page 3, last visited May 6, 2006.
6

1994.3
9. Based on information available to date, defendants will execute Plaintiff by poisoning him with a lethal combination of three chemical substances: sodium
pentothal, a short-acting barbiturate; pancuronium bromide, a paralytic agent; and
potassium chloride, an extremely painful chemical that causes cardiac arrest. 10. In carrying out Plaintiffs execution by lethal injection, Defendants will
follow an execution protocol that has not been provided to Plaintiff, despite formal request. The protocol the Defendants will follow in carrying out Plaintiff s execution
violates the Eighth Amendment's prohibition against cruel and unusual punishment
and Delaware statutes, rules, and regulations. The eombination ofthe three particular
chemicals used in the lethal injection, as well as the manner of their administration, create a grave and substantial risk that Plaintiff will be conscious throughout the
execution process and, as a result, will experience a constitutionally actionable level of excruciating pain and an unnecessarily protracted death, but will. be unable to
3In State v. Deputy. 644 A.2d 411 (Sup. Ct DeL 1994), two internal regulations from the DOC were made public. The First was DOC Policies and Procedures Number 750, titled, Execution Procedures. The second was a document titled "Injection Team," which included sections on "Pre-Execution Inventory and Equipment Check," "Obtaining Drugs," "IV Set-Up Procedure," "Injection Procedure,""When the Signal to Commence Is Given by the Warden," and "Contents of Syringes." The second document also contains a "Supply Check List," which sets forth the drugs that are administered to accomplish death.
7

communicate his pain and suffering to his executioners. 11. Sodium pentothal, in an ordinary clinical dose, is a very short-acting
barbiturate that is usually administered only during the preliminary phase of anesthesia. There is a reasonable likelihood that sodium pentothal, if ineffectively delivered, will not provide a sedative effect forthe duration ofthe execution process. Without adequate sedation, Plaintiff will experience excruciating pain as a result of the asphyxiation caused by pancuronium bromide and the painful internal burn and cardiac arrest caused by a potassium chloride overdose.
12. Pancuronium bromide, the second chemical administered in the lethal injection process, paralyzes voluntary muscles, including the diaphragm, but it does not affect consciousness or the perception of pain. Pancuronium bromide, administered by itself as a "lethal dose," would not result in a quick death. Rather, it would cause someone to suffocate to death slowly, while still conscious. However, because the DOC does not use pancuronium bromide to cause death, its use in the execution process is completely unnecessary. Because it will serve only to mask Plaintiff s pain and suffering, and prevent him from reporting that he is not properly anaesthetized, its use is the process violates the Eighth Amendment's proscription against cruel and unusual punishments.
13. Pancuronium bromide serves no lawful or penological purpose. It
8

cannot lawfully be used alone as the fatal agent, because causing death by suffocation would violate the ghth Amendment's prohibition against cruel and unusual punishment The use of pancuronium bromide thus greatly increases the risk that Plaintiffwill be conscious, but paralyzed throughout the process leading to his death, and that he will suffer extraordinary pain but be unable to report the same to his executioners.
14. Potassium chloride, the third chemical administered, causes cardiac arrest Without proper anesthesia, potassium chloride causes great pain and suffering, as it bums its way through the condemned's veins.
JURISDICTION M"D VEl\lJE
15. This action is brought pursuant to 42 U.S.C. § 1983 to protect Mr. Jackson's right not to be subjected to cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. To be clear, Plaintiff does not allege that lethal injection is per se unconstitutional, or that the Defendants may not execute Plaintiff by lethal injection. Rather, he challenges as unconstitutional and violative of state law the manner by which the Defendants will likely administer Plaintiffs lethal injection, absent this Court's intervention. Thus, this matter is properly before the Court pursuant to 42 U.S.c. § 1983 challenging the lethal injection process that Defendants will use to execute Plaintiff, because it is not
9

a challenge to his sentence of death, nor a challenge to lethal injection per se. 16. This Court therefore has subject matterjurisdiction pursuant to 28 U .S.C.
§ 1331 (federal question), § 1343 (civil rights violations), § 2201 (dec1aratoryrelief), and § 2202 (furtherrelief). Plaintiffalso invokes this Court'sjurisdiction to hear and decide all pendant state law claims.
17. Since Defendants are employees or contractors engaged by the State of Delaware who will act under color of state law, this Court has general personal jurisdiction in this matter.
18. Venue is proper pursuant to 28 U.s.C. § 1391 (b), because Plaintiff is currently incarcerated at the Delaware Correctional Center ("DCC") in Smyma, Delaware, located in this District. All executions conducted by Defendants, including Plaintiff's, occur at the DCC. The events giving rise to this Complaint have occurred, and/or will occur, in this District.
PARTIES
19. Plaintiff, Robert W. Jackson, III, is a United States citizen and a resident of the State of Delaware. He is currently a death-sentenced prisoner in the custody ofthe Delaware Department ofCorrection. He is held at DCC in Smyma, Delaware.
20. Defendant, Stanley W. Taylor, Jr., is the Commissioner ofthe Delaware Department of Correction. He is responsible for the day-to-day management of the
10

DOC and is charged by state statute with determining the specific execution protocol, and carrying out and supervismg Plaintiff's execution:
Afethod and imposition ofsentence ofdeath . ... Punishment of death shall, in all cases, be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such person sentenced to death is dead, and such execution procedure shall be determined and supervised by the Commissioner of the Department of Correction. 11 Del. C. § 4209(f). 21. Defendant TIlOmas 1. Carroll is the Warden of the Delaware Correctional Center, where Plaintiff is incarcerated and where the execution is due to take place. He i.s Plaintiff's custodian. Additionally, he is responsible for the dayto-day management of the DCC and for the supervision of Plaintiffs execution. 22. Defendant, Paul Howard, is the Bureau Chief for the Bureau of Prisons, which provides overall administrative support for Delaware's five state prisons, including the Delaware Correctional Center. His predecessor was responsible for researching and drafting what Plaintiffbelieves to be the current execution protocol. 23. Defendants, Other Unkno'i\'Tl State Actors Responsible for and Participating in the Carrying Out ofPlaintiffs Execution, are agents, employees or contractors engaged by Defendants and their agents to participate in Plaintiff's execution.
11

24. All Defendants are sued in both their individual and official capacities.
PRISO:\' LITIGATION REFORM ACT EXIL-\USTION
25. It is not at all clear that DOC's prison regulations actually provide, or require, any form of grievance of Plaintiffs complaints. Nonetheless, on May 1, 2006, Plaintiff filed an inmate Grievance Report, requesting that his lethal injection not be carried out in a manner that would likely cause him unconstitutional levels of pain and suffering. Plaintiffs grievance was denied on May 4,2006. Plaintiff was then informed by DOC, for the tirst time, that there was some type of appeal process. Plaintiff filed an appeal on May 5, 2006. These filings were all done pro se, as the DOC authorities would not permit representation by counseL
26. Notwithstanding his filing of a grievance, Plaintiff is not required to exhaust administrative remedies before bringing this Complaint because modification ofthe lethal injection protocol is not possible through the grievance process, and exhaustion is futile. Thus, Plaintiff's grievance was filed in an abundance of caution, with due recognition that exhaustion is futile. Indeed, ina number of public statements, Defendants have made clear that they do not intend to revise their lethal injection protocol to bring it within constitutional standards. On May 2, 2006, Department of Corrections spokeswoman Gail Minor told the press that "a pending court case in Califomia challenging the legality oflethal injections would not affect
12

Jackson's scheduled execution." Joe Rogals1.ry, Date set for execution; Ruling in California case won't have effect, DELAWilliE STATENEWS, May 2, 2006. Ms. Minor furfuer stated that Department policy forbade her from releasing the chemical makeup ofDelaware 's injection, but said discussions with DOC "[egal counsel" indicated Mr. jackson's execution could proceed as scheduled. ld.
27. Plaintiff's challenge to the lethal injection protocol that the DOC intends to use to execute him is ripe for adjudication.
FACTS
28. All prior allegations set forth above are realleged as if set forfu entirely herein.
29. The best available information about Delaware's current lethal injection protocol indicates that Defendants, acting under color of state law, will administer to Plaintiff a mix ofchemicals that will cause unnecessary pain and suffering during the administration ofms sentence ofdeath, thereby depriving Plaintiff of his rights to be free from cruel and unusual punishment under fue Eighth and Fourteenth Amendments, in violation of 42 U.S.c. § 1983, and various Delaware state laws, rules, and regulations.
30. The manner by which Plaintiff s execution will occur violates Plaintiff s rights under the cruel and unusual punishment clause of the Eighth Amendment
13

because the method creates the unreasonable and unacceptable risk ofu=ecessary physical and psychological pain; does not comport with contemporary norms and standards of decency; and offends Plaintiff's and society's dignity.
31. Defendants will carry out Plaintiff's execution by utilizing three dangerous chemicals, but the protocol Defendants will follow does not ensure that the perso=el entrusted with the lethal injection procedure possess the proper and necessary training, experience, or expertise to prepare and administer those chemicals. Defendants' protocol for the administration of the drugs also fails to take account of any indi vidualized factors about the condemned that might alter the amount of chemicals needed or the vvay the chemicals should be administered. Defendants' protocol fails to specify the timing of the administration of the three separate chemicals, which is an essential requirement for their proper administration.
32. Sodium pentothal, also known as thiopental, is the first drug administered. Sodium pentothal is an ultra-short-acting barbiturate that produces only shallow anesthesia. Medical professionals use it as an initial anesthetic in preparation for surgery, during the time that they set up a breathing tube in the patient, and then use different drugs to bring the patient to a "surgical plane" of anesthesia, the deeper level ofanesthesia that is maintained throughout a surgery. Thus, when used in a therapeutic medical procedure, sodium pentothal is intended
14

only as a preliminal)' anesthetic used for the patient's comfort prior to the inducing of full, surgical, anesthesia. It is used with specific recognition that it can be overcome if the patient is feeling pain in this initial period, so that the medical professionals involved in the surgery can be made aware ofany errors made in setting up the breathing tube and initiating the deeper anesthesia for the duration of the surgery. Plaintifftoo will wake up to the pain ofhis execution, but because ofthe use of the next drug administered, pancuronium bromide, he will not be able to alert his executioner that he is feeling pain.
33. Under Defendants' current procedure, sodium pentothal is the only anesthetic that will be administered during Plaintiffs execution.
34. Sodium pentothal is unstable in liquid fonn and must be mixed and applied in a way that requires the expertise associated with licensed medical professionals.
35. The second chemical the Defendants useis pancuronium bromide, which is a paralytic agent, not an anesthetic. The pancuronium bromide will cause Plaintiff to be paralyzed but conscious. Ifthe initial dose of sodium pentothal fails to properly anesthetize Plaintiff- whether the failure results from an error of administration, an insufficient dose, or some other problem - Plaintiff will be paralyzed and unable to breathe or move, but he will be conscious to suffer pain and death from burning veins
15

and heart failure caused by the administration of potassium chloride. The risk of sodium pentothal failing to initiate or maintain adequate anesthesia is neitherremote nor imaginary. When sodium pentothal is exposed to pancuronium bromide, it precipitates and beeomes inactive as an anesthetic. Anyone of a number ofmistakes, or even simple bad luck, can cause this to happen. In the absence of assurance that the executioners have the same training and skills as those who participate in therapeutic medical procedures, there is a substantiallikelihood that precipitation will happen.
36. Moreover, because Defendants will administer the potassium chloride in a lethal dose, the use of pancuronium bronride serves no purpose in the execution process. It will neither bring on PlaintitTs' death (that will be accomplished by the third dmg to be administered, potassium chloride), nor will it anesthetize him. Its only function is to prevent the witnesses, media, and the Dee staff from knowing whether the sodium pentothal has worn otT and whether the conderrmcd is suffering from suffocation or from the internal bum and cardiac arrest of the third chemical, potassium chIoride. In short, pancuronium bromide unnecessarily increases the risk that Plaintiffwill be conscious but paralyzed during the enormously painful injection. Because he will be paralyzed, he will be unable to communicate to the executioners that he is experiencing the cmel and unusual levels of pain.
16

37, Conversely, without the use of pancuroni urn bromide, Plaintiff would be able to indicate that he was still conscious prior to the administration ofpotassium chloride. That ability particularly crucial because Plaintiff will not be in the same room as his executioner(s). Because the executioner(s) will be removed from Petitioner and the death chamber itself, it will be impossible for the executioner(s) to determine whether Plaintiff is conscious once he is paralyzed by the pancuronium bromide.4 38, The third and final chemical, potassium chloride, causes the death ofthe condemned. Potassium chloride burns intensely as it passes through the veins towards the heart. Because the veins return blood to the heart after the blood has reached the extremities, the blood runs more slowly in the veins than it does in the arteries, prolonging the pain suffered by the condemned.
39. When the potassium chloride reaches the heart, it causes a heart attack. If the sodium pentothal has worn off, the condemned experiences the severe pain of cardiac arrest, but he is unable to express the pain, because the pancuronium bromide has paralyzed his face, arms, and entire body so that he cannot speak or move.
40. The American Veterinary Medical Association ("AVMA") has concluded that it is acceptable to euthanize an animal using the combination of an
4http://www.state.de.us/correctiinfonnationfdeathrow_history.shtml at page 2, last visited May 6, 2006, states that the executioner(s) are not in the death chamber during the process.
17

anesthetic and potassium chloride if the animal is under general anesthesia when the potassium chlorice is administered. 2000 Report of the AVMA Panel ofEuthenasia, 218]. Am. Veterinary Med. Ass'n 669, 680 (March 1,2001) ("AVMA Report"). The use of potassium chloride is "unacceptable and condemned," however, "when used in unanaesthetized animals." ld.
41. The AVMA further states that when potassium chloride is used for animal euthenasia, it is "of utmost importance" that the personnel performing the euthenasia "are trained and knowledgeable in anesthetic techniques, and are competent in assessing anesthetic depth appropriate for administration ofpotassium chloride intravenously. Administration ofpotassium chloride intravenously requires animals to be in a surgical plane ofanesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of response to noxious stimuli." AVMA Report at 681.
42. Under Delaware law, animals are euthanized by "administration of sodium pentobarbital" or, under some limited circumstanccs, by administration of chloroform. 3 Del. C. § 800 1.5 Delaware law requires that administration of pentobarbital "be by a licensed veterinarian or by a person certified as proficient in
5An animal may be subject to euthanasia "[wlith chloroform by a means approved in writing by a licensed veterinarian after inspecting the equipment and method." 3 Del. C. § 8001.
18

the injection of sodium pentobarbital by a licensed veterinarian after passing both a written and practical examination." 3 Del. C. § 8002 (b)(2).
43. Defendants have no analogous requirement that those involved in the execution process be similarly credentialed. In fact, Defendants do not require that the personnel who administer the lethal chemicals have any specialized training, thus greatly increasing the likelihood of Plaintiff suffering undue, unnecessary, and horrific pain and suffering. The available information about Delaware's lethal injection protocol indicates that it fails to comport with the minimum standards for the humane euthanization of animals.
44. According to the information made public by the DOC, a member ofthe DOC staff acts as the executioner.6 Prior to 1991, the DOC hired a non-staff person to carry out the execution, but "primarily due to budgetary constraints," the policy was altered in 1991 to the effect that a staffmember acts as executioner.7 Defendants do not publish and have refused all requests for information with respect to the training, credentials, certifications, experience, or proficiency required of any personnel involved in the administration of the lethal injection procedure,
'The DOC's website states, "The job ofthe staff exeeutioner is voluntary, and the person's identity is kept confidential." http://www.stare.de.us/correct/ informationldeathrow_history.shtrnl.
.bttp://www.srate.de.us/correct/information/deathrow history.shtml.
19

notwithstanding the fact that anesthesia is a complex medical procedure requiring a great deal of expertise in order to be performed correctly.
45. Autopsy reports from prisoners executed in Delaware in the past suggest that some likely remained conscious during the administration oflethal drugs, which could have occurred because of improper inseJllon of the intravenous line, an unrecognized blockage in the line, or various other reasons. Yet, Defendants have not published and have refused all requests for their intemal regulations or practices regarding requirements for the presence at an execution ofany personnel who possess sufficient expertise to insert an intravenous line properly, to determine ifthere is a blockage in the intravenous line, or to evaluate whether the conderrmed is properly sedated before proceeding with the painful parts of the execution process.
46. The potential absence of medically trained personnel greatly increases the risk that Plaintiff would not receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide, and thus would experience the painful internal bum of the potassium chloride.
47. Inducing unconsciousness by correctly administering sodium pentothal is indispensable to preventing the wanton infliction of pain when the potassium chloride is administered. Defendants, however, havc made no provision for the preparation of backup syringes of sodium pentothal
20

48. Defendants have failed to address the individual prisoner's medical condition and history. Several regularly prescribed drugs, including valium, which is often given to inmates prior to an execution, interfere with the ability of sodium pentothal to act properly as an anesthetic.
49. Defendants also have no provisions for addressing the many reasonably foreseeable complications with any appropriate medical responses.
50. Although it is possible to constitutionally conduct executions by lethal injection, Defendants have chosen not to do so. Defendants could choose to use different chemicals that pose a low to non-existent risk ofadministration error but do not cause extraordinarily grave consequences to a condemned prisoner ifnot properly administered. Instead, Defendants have chosen to use chemicals that pose a high ri sk ofadministration error. Moreover, they have not taken precautions to ensure that the personnel who administer the lethal injection chemicals possess the training, experience, and expertise needed to administer those chemicals properly. Defendants could choose not to administer the utterly unnecessary drug, pancuronium bromide, the only purpose of which is to make the witnesses more comfortable, however they will nonetheless use it Thus, while it is possible for Defendants to choose different lethal injection chemicals and/or to retain qualified personnel to administer its chosen chemicals in order to ensure the constitutionality of Plaintiffs execution, they have
21

not done so.
CL4JMS
51. All prior allegations are repeated as if set forth herein. 52. Defendants' protocol for carrying out Plaintiffs execution violates his rights under the Eighth and Fourteenth Amendments to the United States Constitution. 53. Defendants' failure to have an established protocol setting forth the proper dosage and administration of chemicals violates the Eighth and Fourteenth Amendments to the United States Constitution. 54. Defendants' use of pancuronimum bromide in the execution process serves no legitimate purpose and will cause Plaintiffunnecessary and unconstitutional levels of pain and suffering by preventing him from alerting the executioner(s) that he is feeling the excruciating pain of the execution, thereby violating the Eighth and Fourteenth Amendments to the United States Constitution. 55. Defendants' failure to utilize L.Tedentialed and trained personnel III proximity to Plaintiffduring the execution, to administer the lethal drugs and monitor the execution process will cause Plaintiff unnecessary and unconstitutional levels of pain and suffering and therefore violates the Eighth and Fourteenth Amendments to the United States Constitution.

REQUEST FOR RELIEF
Wherefore, Robeli W. Jackson, III, requests the following relief:
A. Temporary, preliminary, and permanent injunctive relief enjoining the
Defendants, their officers, agents, servants, employees, and all persons acting in
conceli with them from executing plaintiffby lethal injection using the DOC's lethal
injection protocol.
B. Temporary, preliminary, and permanent injunctive relief to enjoin the
execution of Plaintiff and to maintain the status quo until the DOC's lethal injection
protocol is brought into conformity with constitutional standards.8
8According to Dclaware law, Mf. Jackson is not subject to execution by hanging, because that method of execution only becomes relevant iflethal injection is found unconstitutional per se. 11 Del. C. § 4209(f) ("If the execution of the sentence of death as provided above is held unconstitutional by a court ofcompetent jurisdiction, then punishment of death shall, in all cases, be inflicted by hanging by the neck."). As stated above, Plaintiff does not challenge the constitutionality of lethal injection, but only the unconstitutional manner by which it will be accomplished unless this Court intervenes to require Defendants to perform the lethal injection in a constitutional manner.
In any event, even if this Court's ruling required that Plaintiffs execution default to death by hanging, hanging by the neck is itself an unconstitutional, cruel form ofpunishment that cannot be administered in accordance with the United States Constitution or the laws of the State of Delaware. The clearest indication that hanging is an unconstitutional fonn ofexecution is that pursuant to society's evolving standards or 'decency, virtually all jurisdictions have dispensed with iLSee ~ hgC!:llih!L.:L.J~rrg]ll1, 408 U.S. 238 (1972) (Brennan, J. concurring) ("Since the development ofthe supposedly more humane methods oflethal gas and electrocution, hanging ... ha[s] virtually ceased.") (internal quotation marks and citations omitted).
23

C. In the event that the DOC's lethal injection protocol is not enjoined in
its entirety as violating the Eighth and Fourteenth Amendments, temporary,
preliminary, and permanent injunctive relief to enjoin defendants, their officers,
agents, servants, employees, and all persons acting in concert with them from
administering pancuronium bromide during the execution process;
D. In the event that the DOC's lethal injection protocol is not enjoined in
its entirety as· violating the Eighth and Fourteenth Amendments, temporary,
preliminary, and permanent injunctive relief to enjoin defendants, their officers,
agents, servants, employees, and all persons acting in concert with them from
Review of even a single description of a hanging shows why society has all but eschewed it as a humane and constitutional method of execution:
Vlhen the trap springs he dangles at the end ofthe rope. There are times when the neck has not been broken and the prisoner strangles to death. His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may he broken, and the rope many times takes large portions of skin and flesh from the side of the face that the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on.
Gardner, Executions and Indignities ..- An Eighth Amendment Assessment ofMethods ofInflicting Capital Punishment, 39 Ohio St. L.J. 96, 121 (1978).
Because Plaintiff is not challenging Defendants authority to execute Plaintiff by lethal injection, the instant Complaint does not challenge the constitutionality of hanging. However, Plaintiff reserves his right to amend this Complaint should any order entered by this Court cause Defendants to believe that they are authorized by law to hang Plaintiff, or should preparations for a hanging conunence.
24

allovving personnel who lack sufficient training, credentials, certification, experience,

or proficiency to conduct the lethal injection procedure;

E. That the Court conduct appropriate and necessary evidentiary hearings

and discovery to pennit Plaintiff to prove his constitutional claims; and

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

Respectfully Submitted,
----'----;zi5-_
Maureen Kearny Rowley ChiefFederal Defender By: Billy H. Nolas Michael Wiseman Helen ~larino Megan McCracken Assistant Federal Defenders Federal Community Defender for the Eastern District of Pennsylvania Capital Habeas Corpus Unit Suite 545 West The Curtis Center Philadelphia, PA 19106 215-928-0520

Counsel for Plaintiff Robert W. Jackson, III

Dated:

Wilmington, Delaware May 8, 2006

25

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

_________________________________________

:

ROBERT W. JACKSON, III,

:

Civil Action No.

:

06-cv-300

:

Plaintiff,

:

Chief Judge Sue L. Robinson

:

vs.

:

Emergency Action

:

STANLEY W. TAYLOR, JR., Commissioner, :

Execution Scheduled for

Delaware Department of Correction; THOMAS :

Midnight

L. CARROLL, Warden, Delaware Correctional :

May 19, 2006

Center; PAUL HOWARD, Bureau Chief, Bureau :

of Prisons; and OTHER UNKNOWN STATE :

ACTORS RESPONSIBLE FOR AND

:

PARTICIPATING IN THE CARRYING OUT OF :

PLAINTIFF’S EXECUTION, All in their

:

Electronically Filed

Individual and Official Capacities,

:

:

Defendants.

:

__________________________________________:

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND CONSOLIDATED MEMORANDUM OF LAW

Maureen Kearny Rowley Chief Federal Defender By: Billy H. Nolas Michael Wiseman Helen Marino Megan McCracken Assistant Federal Defenders Federal Community Defender for the Eastern District of Pennsylvania Capital Habeas Corpus Unit Suite 545 West – The Curtis Center Philadelphia, PA 19106 215-928-0520 Counsel for Plaintiff Robert W. Jackson, III.

Dated: Wilmington, Delaware May 8, 2006

NOTICE OF MOTION FOR PRELIMINARY RELIEF Plaintiff Robert W. Jackson, III is currently under a sentence of death. His execution by lethal injection is scheduled to take place at midnight on May 19, 2006. Mr. Jackson has filed a civil rights Complaint alleging that the protocol to be used by the Defendants to carry out his execution by lethal injection constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments because it creates a substantial risk that Mr. Jackson will be fully conscious and in agonizing pain during the execution process.1 Because it is unlikely that his Complaint can be fully adjudicated prior to his execution, he moves for preliminary injunctive relief to prevent defendants from executing him in an unconstitutional manner. This application for a preliminary injunction is made pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65. Mr. Jackson will sustain irreparable harm if injunctive relief is not granted to prevent defendants from conducting Mr. Jackson’s execution in accordance with the DOC’s current protocol for lethal injection. Mr. Jackson 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 and points of authorities, and exhibits, including the declaration of Plaintiff’s primary expert, Dr. Mark Heath. Pursuant to Federal Rule of Civil Procedure 65(b), the Complaint has been provided to opposing counsel. Mr. Jackson requests that the Court issue an order to show cause and establish
1As alleged in the Complaint, Defendants have refused to provide undersigned counsel with any information regarding the specific protocol that will be used in Plaintiff’s execution. Accordingly, Plaintiff’s allegations are based on past executions, past protocols and a smattering of public information.
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a briefing schedule, so that a hearing on this motion for preliminary relief can be conducted prior to

the scheduled execution.

I.

INTRODUCTION.

Plaintiff, Robert W. Jackson III, a death row prisoner incarcerated at Delaware Correctional

Center, will soon be executed by lethal injection. A growing body of medical evidence, eyewitness

observations, and veterinary studies, persuasively demonstrate that the manner in which the

Defendants administer lethal injections creates a significant risk that the condemned person fails to

receive adequate anaesthesia and will therefore be conscious for the bulk of the duration of the

execution. Without adequate anesthesia, the condemned first would experience slow suffocation and

paralysis as a result of the administration of pancuronium bromide, then would experience the

extraordinarily painful activation of the sensory nerve fibers in the walls of his veins as a result of

the administration of potassium chloride. Given the significant risk of horrific pain and suffering

posed by the protocol that will likely be followed, Mr. Jackson seeks to prevent the Defendants from

executing him in a manner that is likely to subject him to this excruciating pain.

In the 18 executions by lethal injection the DOC has conducted, it has used three drugs,

presumably in succession: first, sodium pentothal, a fast-acting, short-lasting barbiturate that, under

ideal circumstances, will cause a condemned prisoner to lose consciousness; pancuronium bromide,

a neuromuscular blocking agent that paralyzes the muscles and has no apparent purpose other than

to make the execution appear peaceful and humane to witnesses; and, finally, potassium chloride,

which induces cardiac arrest. The best available information about these executions indicates that

the conditions under which executions are carried out have been consistent over the years. These

conditions – remote administration of the drugs, untrained and improperly credentialed personnel

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involved in the procedure, and no monitoring of the prisoner’s condition throughout the execution process – create a substantial risk that the drugs, particularly sodium pentothal, will not be administered properly. Such an error could result – and has resulted – in prisoners remaining conscious during the painful portions of their executions. However, the likely protocol does not contain any procedures for preventing or reacting to the obvious risks. The protocol does not explain how execution personnel should detect and react to problems with administration of the chemicals; how to insure proper levels of anesthesia or explain how to suspend the execution, should it become clear that the condemned is still conscious.
Mr. Jackson alleges that the significant risk of a botched execution is a foreseeable consequence of the conditions imposed by the DOC’s internal protocol for carrying out executions by lethal injection. It is surely unconstitutional for the Defendants to institute an execution protocol that creates a significant risk of inflicting excruciating pain and then to consciously disregard that risk. Plaintiff therefore requests that the Court enjoin Defendants from executing him by means of lethal injection in a manner that all but insures he will suffer torturous and unnecessary pain and suffering. II. FACTUAL BACKGROUND.
Robert W. Jackson, III, was arrested on April 9th, 1992, and subsequently indicted in the New Castle County Superior Court for two counts of First Degree Murder (intentional murder and felony murder), Burglary Second Degree, Conspiracy Second Degree, Robbery First Degree, and three counts of Possession of a Deadly Weapon During the Commission of a Felony. Following a jury trial, Jackson was convicted of all indicted counts on March 30th, 1993, and, following a penalty hearing, sentenced to death by lethal injection. Presiding over the Superior Court Trial was the
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Honorable Vincent A. Bifferato. Following his first direct appeal to the Delaware Supreme Court, Jackson’s convictions were
affirmed; however, the Delaware Supreme Court vacated his death sentence, remanding the matter for a new penalty hearing. See Jackson v. Carroll, 643 A.2d 1360 (Del. 1994), cert. denied Delaware v. Jackson, 513 U.S. 1136 (1995).
The second penalty hearing was held in September 1995. Although the jury was not unanimous in recommending a death sentence, Judge Bifferato again imposed a sentence of death on October 26, 1995. Jackson’s counsel at his second penalty hearing were Kevin J. O’Connell, Esquire, and Thomas A. Foley, Esquire. Jackson’s death sentence was affirmed on appeal to the Delaware Supreme Court. See Jackson v. State, 684 A.2d 745 (Del. 1996).
Following a representation hearing on June 12, 1997, Judge Bifferato appointed Mr. Foley as post-conviction counsel for Jackson. Jackson’s State Petition for Post Conviction Relief was filed on August 21, 1997. On August 25, 1999, the Court issued a Memorandum Opinion, denying Jackson's Motion for Postconviction Relief. State v. Jackson, Del. Super., ID# 92003717DI, Bifferato, J. (Aug. 25, 1999). Subsequently, Jackson appealed to the Delaware Supreme Court, which affirmed the Trial Court’s denial of his Rule 61 Motion for Postconviction Relief. Jackson v. State, 770 A.2d 506 (Del. 2001).
In August 2001, Jackson filed a Petition for Writ of Habeas Corpus in the U. S. District Court, District of Delaware. An Amended Petition was filed on August 14, 2002. This Court denied Jackson's Petition for Writ of Habeas Corpus. Jackson v. State, 2004 WL 1192650 (D. Del. May 20, 2004) (No. Civ. 01-552-SLR).
Jackson filed a timely appeal in the Third Circuit Court of Appeals, which denied relief on
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Jackson's appeal on December 20th, 2005. That decision, and the earlier ruling of the District Court, will be the subject of Plaintiff’s Petition for Writ of Certiorari, which is being filed in the United States Supreme Court on this date (May 8, 2006).
On January 18, 2006, the Superior Court of the state of Delaware, New Castle County, held an office conference regarding Plaintiff’s case. At that time, Plaintiff’s then-counsel (Thomas Foley, Esq.) believed that there would be no further litigation, and counsel so informed the court. Counsel erred. As a result of that conference and the erroneous information from Mr. Foley, the Superior Court, on January 23, 2006, issued an Order setting May 19, 2006 as Mr. Jackson’s execution date. See Jackson v. Carroll, No. 04-9012 (3d Cir. May 2, 2006), slip op. at 2 (explaining that after the setting of the May 19 execution date “the office of the Federal Community Defender has entered an appearance” and “Jackson explains that the only reason why the execution date was set as early as May 19, 2006 is that after we denied his request for a certificate of appealability, counsel – Thomas M. Foley, Esq. – erroneously represented in state court that Jackson would not pursue further litigation.”).
Undersigned counsel are new to Mr. Jackson’s case. See id. Pursuant to authorization received from the Administrative Office of the United States Courts, the Federal Community Defender Office for the Eastern District of Pennsylvania (“Community Defender”) has been asked to render assistance to capital defense counsel in Delaware federal habeas corpus proceedings. Undersigned counsel (Michael Wiseman) met with this Court on March 13, 2006, along with Penny Marshall, Federal Public Defender for the District of Delaware, Joseph Miller, First Assistant Federal Defender for the Community Defender, Kevin O’Connell, Assistant State Public Defender, and the Honorable Jan R. Jurden, Judge of the Superior Court of Delaware. At that time, this Court
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was advised of the Administrative Office’s request that the Community Defender lend such assistance to the Delaware Bar, and the Community Defender sought the approval of this Court for this endeavor. Subsequently, the Community Defender was authorized to render such assistance, and its staff began work on a number of Delaware capital post-conviction cases, including this one.
On March 31, 2006, Billy H. Nolas, an Assistant Federal Defender employed by the Community Defender, entered his appearance as counsel for Mr. Jackson in the United States Supreme Court. Prior to that day, no attorney from the Community Defender had worked on Mr. Jackson’s case.
On May 1, 2006, Plaintiff filed an inmate Grievance Report, requesting that his lethal injection not be carried out in a manner that would likely cause him unconstitutional levels of pain and suffering. Plaintiff’s grievance was denied on May 4, 2006. Plaintiff was then informed by DOC, for the first time, that there was some type of appeal process. Plaintiff filed an appeal on May 5, 2006. These filings were all done pro se, as the DOC authorities would not permit representation by counsel.
Notwithstanding his filing of a grievance, Plaintiff is not required to exhaust administrative remedies before bringing this Complaint because modification of the lethal injection protocol is not possible through the grievance process, and exhaustion is futile. Thus, Plaintiff’s grievance was filed in an abundance of caution, with due recognition that exhaustion is futile. Indeed, in a number of public statements, Defendants have made clear that they do not intend to revise their lethal injection protocol to bring it within constitutional standards. On May 2, 2006, Department of Corrections spokeswoman Gail Minor told the press that “a pending court case in California challenging the legality of lethal injections would not affect Jackson’s scheduled execution.” Joe Rogalsky, Date
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set for execution; Ruling in California case won’t have effect, DELAWARE STATE NEWS, May 2, 2006. Ms. Minor further stated that Department policy forbade her from releasing the chemical makeup of Delaware’s injection, but said discussions with DOC “legal counsel” indicated Mr. Jackson’s execution could proceed as scheduled. Id. No administrative challenge to the lethal injection protocol is possible here. III. ARGUMENT
Mr. Jackson’s civil rights Complaint alleges that the protocol that is likely to be used in his execution will result in unneccessary pain and suffering in violation of his right to be free from cruel and unusual punishment. Mr. Jackson seeks a permanent injunction to prevent his execution by use of the unconstitutional protocol. As described herein, Mr. Jackson is likely to succeed on the merits of his request for a permanent injunction. As also described herein, absent the Court’s granting of the instant motion for a preliminary injunction, he will likely suffer irreparable harm because his constitutional claims may not be fully adjudicated prior to his execution date. It is also in the public interest to grant preliminary injunctive relief, because doing so will allow for the full adjudication of the important questions presented in the Complaint.
A. The Legal Standard Governing Preliminary Injunctive Relief. Plaintiff easily meets the well-known and established standards governing motions for preliminary injunctive relief. “The standard for evaluating a motion for preliminary injunction is a four-part inquiry, requiring the moving party to show: (1) a reasonable probability of success on the merits; (2) irreparable injury if preliminary relief is not granted; (3) granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) preliminary relief will be in the public interest.” United States v. Bell, 414 F.3d 474, 478 n.4 (3d Cir.2005).
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“The burden lies with the plaintiff to establish every element in its favor, or the grant of a preliminary injunction is inappropriate.” P.C. Yonkers, Inc. v. Celebrations the Party & Seasonal Superstore, LLC, 428 F.3d 504, 508 (3d Cir.2005). However, the necessary showing of likelihood of success diminishes in proportion to the “relative hardship to the party seeking the preliminary injunction.” Beardslee v. Woodford, 395 F.3d 1064, 1067-68 (9th Cir. 2005). Where the balance of hardships tips sharply in favor of the plaintiff, he need demonstrate only the existence of serious questions going to the merits. Id.
Plaintiff will not demonstrate that he meets each of the four criteria. B. Plaintiff Is Likely To Succeed On The Merits. The Complaint filed in this case alleges significant and horrific facts relevant to the manner of execution that will be used against Plaintiff. Plaintiff submits that he will prevail on the merit.
1. Plaintiff’s Claim Is Cognizable under Section 1983. First, Mr. Jackson’s Complaint is properly brought as a civil rights action. Section 1983 provides statutory authorization for federal claims against individuals acting under color of state law. To bring this claim under Section 1983, Plaintiff must allege, first, a violation of a right protected by the Constitution or federal law, and, second, that this right will be or is being violated by an individual acting under color of state law. 42 U.S.C. § 1983. He does not challenge the legality of his conviction or sentence, nor does he seek to prevent the State form executing him by lethal injection in a constitutional manner, i.e. in a manner that will prevent him from experiencing the unnecessary and wanton infliction of pain and suffering. Rather, Mr. Jackson’s challenge is a “method of execution” claim that is cognizable under 42 U.S.C. § 1983. See Nelson v. Campbell, 541 U.S. 637, 647 (2004) (focusing on whether the petitioner’s
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challenge “would necessarily prevent” the State from carrying out the execution). Here, Plaintiff seeks review of the method by which his execution by lethal injection will be
carried out. Plaintiff asserts that Defendants, while acting under color of state law, will violate his Eighth Amendment rights while carrying out the DOC’s lethal injection protocol, thereby subjecting him to pain and suffering that would not occur if the execution were carried out with due care.
2. Delaware’s Lethal Injection Protocol Violates the Eighth Amendment. 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 re. Francis v. Resweber, 329 U.S. 459, 463 (1947); see also Gregg v. Georgia, 428 U.S. 153, 173 (1976) (holding Eighth Amendment prohibits “unnecessary and wanton infliction of pain”). Because the question of “unnecessary pain” is inherently relativistic, the Eighth Amendment inquiry takes account of “evolving standards of decency” and “contemporary values concerning the infliction of a challenged sanction.” Gregg, 428 U.S. at 173. For example, a method of execution that was initially regarded as more humane than its alternatives could, over time, come to offend contemporary values as a result of scientific advancements and experiences with the method that demonstrate that it is not as humane as initially believed. See Fierro v. Gomez, 77 F.3d 301, 303 n.1 (9th Cir. 1996) (noting that last previous challenge to execution by lethal gas had been considered by state supreme court in 1953 and that scientific knowledge had advanced in intervening years); Cf Atkins v. Virginia, 536 U.S. 304, 314-16 (2002) (tracing development of state laws forbidding execution of mentally retarded offenders since 1989 and concluding, “The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.”); Roper
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v. Simmons, 543 U.S. 551, 564-65 (2005) (tracing development of state laws forbidding execution of minors since 1989 and finding the change “significant”).
In determining whether a particular method of execution offends contemporary standards of decency by inflicting unnecessary pain, courts examine the “objective evidence of the pain involved in the challenged method.” Campbell v. Wood, 18 F.3d 662, 682 (9th Cir. 1994). Such evidence can include expert testimony regarding the effect of the method on both humans and animals; the execution records of prisoners executed using the same method; and scientific studies and other evidence analyzing the effects on humans and animals. See Fierro, 77 F.3d at 307 (listing types of evidence considered by district court in analyzing effects of exposure to cyanide gas); Campbell, 18 F.3d at 683-87 (discussing expert testimony, scientific literature, and experiments on death by hanging considered by district court). Furthermore, evidence that other prisoners have suffered unnecessary pain, evidence of other prisoner’s voluntary and involuntary movement, expressions, and apparent consciousness during his execution, are all relevant to the determining whether Plaintiff will suffer. See Fierro, 77 F.3d at 307-08 (relying on eyewitness accounts of executions by lethal gas); Campbell, 18 F.3d at 685 (relying on physician’s observations during an execution by hanging).
Of course it is impossible to determine with certainty before the fact whether a particular person will suffer unnecessary pain during his execution. “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). For this reason, the question of whether the particular administration of a method of execution will inflict unnecessary pain on an individual is an inquiry as to whether the method of execution subjects the person to an
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unacceptable risk of unconstitutional pain or suffering. Fierro, 77 F.3d at 307 (“Campbell also made clear that the method of execution must be considered in terms of the risk of pain.”) (emphasis in original); Campbell, 18 F.3d at 687.
Because any medical procedure inherently carries a risk that a mistake or accident might cause unforeseeable pain, the Eighth Amendment does not require executioners to eliminate all possible risk of pain or accident from their execution protocols. See Campbell, 18 F.3d at 687. A risk of pain becomes unnecessary and constitutionally intolerable, however, when experience with an execution procedure demonstrates that there are foreseeable problems that could arise that would result in the condemned’s suffering intense pain, and the procedure fails to minimize or at least account for those risks. Conversely, when the risk of pain is significantly diminished by alterations to an execution procedure, the Eighth Amendment can be satisfied. As set forth in the Complaint, Defendants have unnecessarily increased the likelihood of a mishap and the unconstitutional infliction of pain by the drugs they use, the drugs they do not use, and as a result of the lack of credentials of those carrying out the execution.
Considering the risk of Plaintiff suffering unconstitutional pain and suffering, the Delaware lethal injection protocol that will be used by Defendants to execute Plaintiff, is clearly unconstitutional because it creates a significant, substantial and unnecessary risk that the Plaintiff will experience a prolonged and agonizing death. Although a properly carried out execution by lethal injection may not involve unnecessary pain and suffering, the Delaware protocol creates a procedure that is rife with potential problems and opportunities for untrained personnel to commit grave errors, all of which can lead to an excruciatingly painful death. Because the protocol fails to account for these potential problems, which are inherent in allowing untrained personnel to perform
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executions by remote control, executions performed in accordance with the protocol carry a
significant and unconstitutional risk of unnecessary pain.
a. The lethal injection protocol creates an actionable risk of unnecessary pain during executions by imposing conditions conducive to errors and by failing to compensate or prepare for these conditions.
The best available evidence indicates that Delaware’s lethal injection protocol provides that
executions shall be carried out by remote control – that is by means of an IV line(s) inserted into a
vein(s) and monitored and controlled from a room outside the execution chamber.2 The
executioner(s) causes two grams of sodium pentothal, an ultrashort-acting barbiturate anesthetic, to
be administered through the IV. Next, a syringe of normal saline is administered through the IV.
Then, 100 milligrams of pancuronium bromide, which completely paralyzes both the prisoner’s
voluntary muscles and his diaphragm, is administered. Again, a syringe of normal saline is
administered through the IV. Finally, the prisoner is given 100 milliequivalents of potassium
chloride, which eventually causes cardiac arrest. See Heath Decl. ¶ 11 (attached as an Exhibit to this
Motion). 3
2Plaintiff refers to the lethal injection protocol throughout this motion and brief, but Plaintiff points out that Defendants have not produced the current protocol for carrying out executions by lethal injection, despite Plaintiff’s formal requests. In referring to the procedure for lethal injection, Plaintiff relies of four sources: (1) the Delaware Department of Correction Policies and Procedures, Number 750, “Execution Procedures (Confidential),” made public record in the appendix in State v. Deputy, 644 A.2d 411 (Sup. Ct. Del. 1994); (2) an internal Department of Correction document entitled “Injection Team,” also made public in the Deputy case; (3) public information made available at the website of the Delaware Department of Correction, http://www.state.de.us/correct/default.shtml, and pages within the site; and (4) media accounts of past executions.
3Mark Heath M.D. is a nationally recognized expert on lethal injection. He is an anaesthesiologist, who has studied lethal injection methods and procedures around the country. He has consulted with various correctional systems and state legislatures to assist in bringing their
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Although the doses of sodium pentothal and pancuronium bromide each would, if given alone, eventually cause death by stopping breathing, neither drug has sufficient time to cause death before the potassium chloride is administered. Id., at ¶ 13. Thus, medical evidence suggests that Plaintiff will be alive at the time that the intended fatal chemical, potassium chloride, is injected. Id. at ¶¶ 13-16. Potassium chloride, when given in doses sufficient to cause death, is known to be excruciatingly painful, because it activates the nerves in the prisoner's veins before it causes the heart to stop, thus burning its way to the prisoner’s heart. Id. at ¶ 19. It is therefore imperative – to avoid torturous levels of pain – that prisoners be adequately anesthetized before the potassium chloride is administered. Id. ¶ 20.
Administering the lethal drugs in the manner dictated by the lethal injection protocol creates the risk that the sodium pentothal will not be administered properly and the prisoner will not be rendered fully unconscious by the time that the other two drugs are administered. Because the protocol fails to ensure the proper administration of sodium pentothal, the risk of consciousness cannot be mitigated by the fact that the dose of sodium pentothal may be excessive in comparison to the dose that would be used in a surgical setting. Although the full dose of sodium pentothal, if it reached the condemned, should be sufficient to induce unconsciousness id., at ¶ 17, that fact is irrelevant in light of the substantial danger that the full dose of sodium pentothal simply will not reach the prisoner. See id. at ¶¶ 35-48.
The risk that prisoners will be conscious during their executions is in part inherent in the use of sodium pentothal itself; the DOC has chosen to use an ultrashort-acting anesthetic that is
systems for lethal injection into Eighth Amendment compliance. His curriculum vitae is attached to his Declaration.
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extremely sensitive to errors in administration. In medical situations, sodium pentothal is used only for specific, expeditious tasks, and only by personnel who have considerable expertise in anesthesia. Heath Decl. ¶¶ 32, 49-52. Monitoring the effects of sodium pentothal, like those of other ultrashort-acting anesthetics, requires considerable expertise in anesthesia. Id. ¶¶ 32, 33. Moreover, because sodium pentothal is extremely unstable, it must be carefully and properly mixed so that it does not precipitate, a technical task that requires significant training in pharmaceutical calculations. Id. ¶¶ 36, 46. Thus, sodium pentothal's instability increases the likelihood of it being administered incorrectly, and its fast-acting properties heighten the risk that improper administration will result in ineffective anesthesia and consciousness, with resulting pain and suffering.
The danger of improper administration of sodium pentothal is exacerbated by the fact that the lethal injection protocol does not require medically trained personnel to supervise, or assist in the medical tasks necessary to prepare for the execution. These tasks include mixing the sodium pentothal solution, Heath Decl. ¶ 36; setting up the IV line and associated equipment, including the “Y” injection site, in order to ensure that fluids do not leak and are not misdirected, id. at ¶¶ 39-40; and finding a usable vein, properly inserting the IV line in the proper direction, and verifying that the drugs are flowing into the prisoner's vein rather than into surrounding tissue, id. at ¶¶ 41-45. All of these tasks require a high degree of specialized training. See id. at ¶ 65.
The risk of inadequate anesthesia is compounded by the fact that the protocol requires that no execution personnel be present in the execution chamber when any of the drugs are administered. The protocol thus prevents personnel from obtaining any visual or other verification that the drugs are actually being administered to the prisoner, or that the sodium pentothal anesthetic has taken and remains in effect. Proper monitoring of the flow of fluids into the vein requires a clear view of the
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IV site, and also tactile examination of the skin surrounding the IV site to verify skin firmness and temperature. Id. at ¶¶ 39, 40, 54.
Proper monitoring of the prisoner would also necessitate that a person trained specifically in assessing anesthetic depth closely observe the prisoner at all times after the sodium pentothal is administered. Only persons trained in anesthesia are able to assess properly whether the prisoner has attained the degree of unconsciousness necessary to render him insensitive to pain. Id. at ¶ ¶ 18, 33, 55, 65. For this reason, even the American Veterinary Medical Association (AVMA) requires that persons euthanizing animals be “competent in assessing depth [of anesthesia] appropriate for administration of potassium chloride.” 2000 Report of the AVMA Panel of Euthenasia, 218 J. Am. Veterinary Med. Ass’n 669, 681 (March 1, 2001) (“AVMA Report”). Similarly, Delaware law requires that administration of euthanasia for animals “be by a licensed veterinarian or by a person certified as proficient in the injection of sodium pentobarbital by a licensed veterinarian after passing both a written and practical examination.” 3 Del. C. § 8002 (b)(2). See Heath Decl. At ¶ ¶ 56-57. No such certification or licensing requirement exists with regard to Delaware executions.
Thus, the lethal injection protocol, by requiring that non-medical personnel remotely inject an unstable drug into prisoners without proper monitoring, creates conditions that are highly conducive to serious errors that could cause the sodium pentothal to be administered improperly. In the face of this danger, the protocol fails to take even the most rudimentary steps towards minimizing the obvious potential problems. Indeed, the protocol is stunning in its complete failure to acknowledge any risk or potential problem other than tampering with the lethal drugs in the days leading up to the execution.
Examples of the protocol’s failure to account for the very risks that it creates are numerous.
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Despite the fact that the injection team personnel are not doctors or nurses who are capable of exercising competent medical judgment based on the situation at hand, the protocol contains no specific instructions for inserting the angiocath into the vein; what size should be used; what to do if there is trouble finding an adequate vein; or how to compensate if any equipment malfunctions. Similarly, the protocol does not attempt to account for the foreseeable issues that may arise when a prisoner requires special consideration for any reason. There is no provision for individualized dosage calculation or medical care or prisoners on medications that may interfere with the anesthetic. Nor is there any indication of how personnel should go about exercising their discretion should these types of issues arise, or who bears responsibility for making medical decisions on the scene. Indeed, the protocol does not specify whether the injection team is in any way prepared to handle the contingencies that might occur during the course of an execution, or provide that training should encompass foreseeable contingencies.
The protocol does not anticipate and provide for the problems that could arise as a result of having no personnel in the execution chamber with the condemned. There is no procedure for testing or verifying the efficacy of the extended IV tubing, or even any instruction on precisely how to set up the tubing. Nor is there a procedure for entering the chamber during the execution should any of the equipment malfunction or the prisoner somehow indicate that something has gone awry.
Finally, and most disturbingly, the protocol apparently does not require execution personnel to verify in any manner, even through the windows of the execution chamber, that the prisoner has been rendered unconscious by the sodium pentothal. Thus, despite the foreseeable risks created by the protocol and described above, the protocol simply does not acknowledge, much less provide for, the possibility that the dose of sodium pentothal will fail to render the prisoner unconscious.
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b. The use of pancuronium bromide in combination with sodium pentothal creates a significant risk that the condemned will be conscious, but unable to communicate that he is conscious, during their executions.
In light of the fact that sodium pentothal is an ultra-short-acting anesthetic, and that Delaware’s lethal injection protocol creates the risk that the dose will not be properly administered, it is particularly important that the prisoner have the opportunity to alert execution personnel should he regain – or never lose – consciousness, and that the execution personnel have the ability to ascertain whether the prisoner is properly anesthetized. Yet the use of pancuronium bromide in combination with sodium pentothal effectively prevents any post-administration correction of problems with the sodium pentothal. It also serves no purpose within the lethal injection process, raising questions about its use.
Pancuronium bromide is a neuromuscular blocking agent that blocks nerve cells from interacting with muscle tissue, therefore paralyzing the prisoner’s muscles, including those of the chest and diaphragm. Heath Decl. ¶ 13. A patient given pancuronium bromide alone would slowly suffocate to death; thus, the unanesthetized experience of the effects of pancuronium bromide would in itself involve extraordinary suffering, as the condemned struggled to breathe. Id. at ¶ 22. Because the drug does not affect the brain or nerves themselves, however, an unanesthetized prisoner would remain completely conscious, but due to the paralysis would be completely unable to communicate either verbally or by movement the fact that he is conscious.
Pancuronium bromide also prevents observers from determining whether the condemned is conscious. Id. at ¶ ¶ 24, 25. Thus, even if the lethal injection protocol provided some mechanism by which personnel could monitor the prisoner’s consciousness, which it does not, the use of
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pancuronium bromide all but ensures that it will be impossible to determine visually whether the prisoner is still feeling pain. Should a prisoner retain consciousness after the sodium pentothal is administered, the prisoner would suffer slow suffocation as well as the excruciating pain of the potassium chloride, all while being completely paralyzed and unable to communicate. Id. at ¶ ¶ 13, 22, 27. This period would last at least a minute, until the condemned loses consciousness from suffocation or is killed by the potassium chloride. Id. at ¶ 13.
It is precisely this risk of the combination of ineffective anesthesia and paralysis that has led at least nineteen states to prohibit the use of a sedative in conjunction with a neuromuscular blocking agent like pancuronium bromide to euthanize animals. See Beardslee, 395 F.3d at 1073 & n.9 (listing relevant state laws and noting the evidence is “somewhat significant”). The AVMA, moreover, prohibits the use of neuromuscular blocking agents alone, stating that because the drugs cause “respiratory arrest before loss of consciousness, . . . the animal may perceive pain and distress after it is immobilized.” AVMA Report at 696 app. 4. The fact that so many states and the nation’s leading veterinary association have condemned as inhumane the use of anesthetics and neuromuscular blocking agents in tandem in the euthanasia of animals is – to say the least – persuasive evidence that this combination of drugs is not consistent with evolving standards of decency when administered to humans. The Eighth Amendment must prohibit the infliction of the same unnecessary pain that the laws of 19 states seek to avoid visiting upon household pets – the veterinary avoidance of this method of euthanasia is compelling indeed.
Despite the evidence that employing pancuronium bromide is not consistent with basic standards of care for animals, and the fact that the use of pancuronium bromide increases the risk that a prisoner will suffer unnecessary pain, Defendants will use it to execute Mr. Jackson.
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Pancuronium bromide serves no legitimate purpose in the execution procedure while greatly increasing the risk of an prisoner’s suffering undetected agony.
c. The deficiencies in Defendants’ lethal injection protocol are the result of conscious choices.
The multiple flaws in Defendants’ lethal injection protocol exist as the result of choices made by Defendants. Delaware’s capital sentencing statute, 11 Del. C. § 4209,4 gives Defendant Taylor almost total discretion over the means by which prisoners are executed: he is responsible for determining and supervising the execution procedure, including choosing the drugs used to accomplish the execution, developing the procedures by which the drugs are administered, and determining what training and qualifications, if any, are required for the execution team. Defendants have chosen to exercise this discretion in a manner that creates an unacceptable risk that prisoners will suffer excruciating pain before their deaths.
Defendants have chosen to use drugs that are extremely sensitive to error, in that sodium pentothal can wear off quickly if not administered correctly, and pancuronium bromide will mask the prisoner’s resulting consciousness. For precisely this reason, the AVMA has chosen to use pentobarbital, a longer-acting anesthetic, in animal euthanasia. AVMA Report at 680-81. Thus, it is clear that other means of causing death by injecting lethal chemicals are available, and that considerations of good medical practice and preventing pain and consciousness are not incompatible with the aim of causing death.
d. Conclusion.
4“Punishment of death shall, in all cases, be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such person sentenced to death is dead, and such execution procedure shall be determined and supervised by the Commissioner of the Department of Correction.” 11 De. C. § 4209.
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Delaware’s lethal injection protocol creates a significant risk that a prisoner will experience excruciating pain for several minutes. This risk is inherent in the design of the protocol, with its insistence on remote administration and its choice of drugs, and is aggravated by the lethal injection protocol’s failure to account for the problems that could arise as a result, and its failure to require adequate training, credentialing and licensing of those responsible for carrying it out.
The risk of unnecessary pain is clearly more substantial than the slight or negligible risk that may be characterized as an accident or anomaly. Available information from Delaware executions and those performed in other states with similar protocols, indicates the strong possibility that at least some of these prisoners were not properly anesthetized during their executions. While it is impossible to quantify precisely the risk of pain that an individual prisoner like Mr. Jackson faces when he enters the execution chamber, the nature of the risk renders it more substantial than might otherwise be the case. Because the potential problems are caused by the lethal injection protocol, every condemned prisoner faces the risk of unnecessary pain during his execution. The risk is not dependent on unforeseeable contingencies, such as an uncontrollable electrical problem, see Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947), but simply increases if a prisoner’s individual characteristics make him less receptive to anesthesia. Mr. Jackson deserves to have his challenge considered on a full record after discovery.
Balanced against these foreseeable risks is the plain fact that Defendants can remediate these problems with no adverse impact on any legitimate concerns, such as the efficacy of the execution, prison security or cost.
C. Mr. Jackson Will Suffer Irreparable Harm If Injunctive Relief Is Not Granted. If the Defendants are not enjoined from executing Mr. Jackson in accordance with its lethal
20

injection protocol, Mr. Jackson will suffer irreparable harm. The excruciating pain that Mr. Jackson will suffer during his execution clearly constitutes irreparable harm. See Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (holding that continued pain and suffering resulting from deliberate medical indifference is irreparable harm). Moreover, he will have no meaningful retrospective remedy or remedy at law, as he will no longer be alive. Indeed, the Defendant’s violation of Mr. Jackson’s Eighth Amendment rights in itself warrants a presumption of irreparable harm, as federal courts have found that “an alleged constitutional infringement will often alone constitute irreparable harm.” Association for Fairness in Business, Inc. v. New Jersey, 82 F.Supp.2d 353 (D. N.J. 2000) (internal quotation marks omitted).
D. The Balance of Hardships Favor Mr. Jackson. The balance of hardships tips sharply in Mr. Jackson’s favor. In requesting preliminary injunctive relief, Mr. Jackson seeks simply to vindicate his right to be free from cruel and unusual punishment in the time left before his execution. Without this preliminary relief, Mr. Jackson will be unable to vindicate these rights. Defendants, in contrast, will suffer little to no harm if Mr. Jackson’s execution is carried out in a humane manner. See Gomez v. U.S. Dist. Ct. for Northern Dist. of Cal., 966 F.2d 460, 462 (9th Cir. 1992) (Noonan, J., dissenting from grant of writ of mandate) (“The state will get its man in the end. In contrast, if persons are put to death in a manner that is determined to be cruel, they suffer injury that can never be undone, and the Constitution suffers an injury that can never be repaired.”).
21

E. Granting Injunctive Relief Is In The Public Interest. Mr. Jackson’s claim that Delaware’s lethal injection protocol causes unconstitutional wanton pain and suffering implicates the public interest. Because Mr. Jackson alleges that the State of Delaware will violate his Eighth Amendment rights by executing him in accordance with its lethal injection protocol, it is paramount to the public interest that Mr. Jackson’s claims be resolved on the merits. The issues are significant enough that the United States Supreme Court has taken certiorari to consider them, see Nelson v. Campbell, 541 U.S. 637 (2004) (holding plaintiff’s civil rights complaint pursuant to §1983 was appropriate vehicle for challenge to “cut-down” procedure, and plaintiff’s request for preliminary injunction did not transform § 1983 claim into a challenge to validity of his death sentence sounding in habeas), and the Court continues to consider them on certiorari review this term, see Hill v. Crosby, 126 S.Ct. 1189 (2006) (granting certiorari). Surely the issues are worthy of this Court’s consideration. Full and fair review is in the public interest. Lethal injection has become the predominant method of execution because it is widely believed by officials to be, and is perceived by the general public as, the most humane form of execution. See Atul Gawande, When Law and Ethics Collide – Why Physicians Participate in Executions, 354 NEJM 1221-1229 (2006) (“Lethal injection now appears to be the sole method of execution accepted by courts as humane enough to satisfy Eighth Amendment requirements — largely because it medicalizes the process. . . . Officials liked this method. Because it borrowed from established anesthesia techniques, it made execution like familiar medical procedures rather than the grisly, backlash-inducing spectacle it had become.”). In choosing lethal injection on the assumption that it is painless, the Delaware state legislature has concluded that employing the most humane method of execution possible is in the public interest. There is now compelling evidence,
22

as described herein and in the Complaint, that lethal injection protocols like the one used in Delaware create a significant and unacceptable risk of inflicting unnecessary pain. Definitively resolving the important and pressing question of the constitutionality of the lethal injection protocol is entirely in the public interest, and therefore granting temporary relief so that Mr. Jackson may remain alive while the parties conduct discovery into this issue also furthers the public interest.
There are no countervailing considerations suggesting that granting temporary relief would hurt the public interest. Mr. Jackson has not engaged in abusive delay, nor is this suit an attempt simply to put off his execution. Where an prisoner presents a meritorious claim of constitutional dimension, it cannot possibly be in the public interest to allow the State to execute him using the very method that he challenges. IV. CONCLUSION
Mr. Jackson is not attempting to prevent the State from executing him. He simply is demanding the constitutional protection to which he is entitled, by requesting that this Court ensure that he is not executed in an unconstitutional manner. To avoid the risk that Mr. Jackson’s execution will be performed in such a manner as to cause him to suffer minutes of torture immediately preceding his death, Mr. Jackson is entitled to relief under 42 U.S.C. § 1983.
23

Accordingly, Mr. Jackson requests that the Court grant to him a hearing on this motion for preliminary relief; discovery requested in the accompanying Motion; and a preliminary injunction preventing Defendants from executing him by means of lethal injection under the protocol currently in effect in the State of Delaware. Respectfully Submitted, /s/ Michael Wiseman Maureen Kearny Rowley Chief Federal Defender By: Billy H. Nolas Michael Wiseman Helen Marino Megan McCracken Assistant Federal Defenders Federal Community Defender for the Eastern District of Pennsylvania Capital Habeas Corpus Unit Suite 545 West – The Curtis Center Philadelphia, PA 19106 215-928-0520 Counsel for Plaintiff Robert W. Jackson, III. Dated: Wilmington, Delaware
May 8, 2006
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Certificate of Service
I, Michael Wiseman, hereby certify that on this 8th day of May, 2006 I served the within upon the following person by United States Mail, postage prepaid, by electronic filing and by email:
Loren C. Meyers Delaware Department of Justice 820 North French Street, 7th Floor
Wilmington, DE 19801 Loren.Meyers@state.de.us
/s/ Michael Wiseman _______________________________ Michael Wiseman

 
 Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 1 of 28 PageID #: 941

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ROBERT JACKSON, et aI., Plaintiffs,
v. CARL DANBERG, et aI.,
Defendants.

) ) ) )
) C. A. No. 06-300-SLR
) ) ) )

DEFENDANTS' OPENING BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

STATE OF DELAWARE DEPARTMENT OF JUSTICE
Elizabeth R. McFarlan, ID No. 3759 Marc P. Niedzielski, ID No. 2616 Gregory E. Smith, ID No. 3869 Deputy Attorneys General 820 North French Street, 7th Floor Wilmington, Delaware 19801 (302) 577-8500
DATED: December 19, 2008

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 2 of 28 PageID #: 942

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... ii .

NATURE AND STAGE OF PROCEEDINGS ........................................................ 1

SUMMARY OF THE ARGUMENT ....................................................................... 3

STATEMENT OF THE FACTS ..............................................................................4

ARGUMENT

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE DELAWARE'S LETHAL INJECTION PROTOCOL IS NOT SUBSTANTIVELY DIFFERENT FROM THE PROTOCOL FOUND TO BE CONSTITUTIONAL UNDER THE EIGHTH AMENDMENT IN BAZE V. REES ............................................................ 11

CONCLUSION ....................................................................................................... 23

i

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 3 of 28 PageID #: 943

TABLE OF AUTHORITIES

Cases

Page

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)........................................... 13

Baze v. Rees, 128 S.Ct. 1520 (2008) ............................................... .passim

Cabrera v. State, 840 A.2d 1256 (Del. 2004)...........................................................5

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...................................................... .13

Clemons v. Crawford, 2008 WL 2783233 (W.D. Mo.)................................... .18, 21

Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008)..................................................21

Farmerv. Brennan, 511 U.S. 825 (1994) ............................................................... 14

Jackson v. State, 643 A.2d 1360 (Del. 1994)...........................................................4

Gattis v. State, 637 A.2d 808 (Del. 1994)................................................................5

Gregg v. Georgia, 428 U.S. 153 (1976)...........................................,.............. .13, 14

Hampton v. Borough of Tinton Falls Police Dept., 98 F.3d 107 (3d Cir. 1996).......................................................................... 13

Helling v. McKinney, 509 U.S. 25 (1993) ............................................................. .14

Henyard v. State, 992 So.2d 120 (Fla. 2008)..........................................................21

In re Belisle, _So.2d _,2008 WL 4447593 (Ala. 2008) ....................................21

In re Kemmler, 136 U.S. 436 (1890) ...................................................................... 14

Manley v. State, 709 A.2d 643 (Del. 1998)..............................................................5

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ..................................................................................... 13

Nooner v. Norris, 2008 WL 3211290 (E.D. Ark.)............................................ 18, 21

Norcross v. State, 816 A.2d 757 (Del. 2003)...........................................................5

11

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 4 of 28 PageID #: 944
Page Ortiz v. State, 869 A.2d 285 (Del. 2005)..................................................................5 Outten v. State, 650 A.2d 1291 (Del. 1994).............................................................5 Ploofv. State, 856 A.2d 539 (Del. 2004)..................................................................5 Raby v. Johnson, 2008 WL 4763677 (S.D. Tex.)............................................. 18, 21 Reyes v. State, 819 A.2d 305 (Del. 2003).................................................................5 Starling v. State, 882 A.2d 747 (Del. 2004).............................................................5 State v. Cooke, 2007 WL 2129018 (Del. Super. Ct.)...............................................5 State v. Johnson, 2008 WL 4140596 (Del. Super. Ct.)............................................5 Stevenson v. State, 709 A.2d 619 (Del. 1998)..........................................................5 Swan v. State, 820 A.2d 342 (Del. 2003).................................................................5 Sykes v. State, 953 A.2d 261 (Del. 2008).................................................................6 Taylor v. State, 822 A.2d 1052 (Del. 2003).............................................................6 Wright v. State, 633 A.2d 329 (Del. 1993)...............................................................6 Zebroski v. State, 715 A.2d 75 (Del. 1998)..............................................................6 Statutes and Rules 42 U.S.C. § 1983................................................................................................. 1, 11 Fed. R. Civ. P. 56(c) ............................................................................................... 12
III

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 5 of 28 PageID #: 945
NATURE AND STAGE OF THE PROCEEDINGS On May 8, 2006, Robert Jackson filed a complaint under 42 U.S.c. § 1983, seeking declaratory and injunctive relief against various Delaware Department of Correction officials responsible for carrying out court-ordered executions. (D.I. 2). Jackson simultaneously moved for a preliminary injunction to stay his pending execution. (D.I. 6). On May 9, 2006, the Court entered an order granting Jackson's motion for preliminary injunction. (D.I. 9). On September 8, 2006, the Defendants filed an answer to the complaint. (D.I. 14). On October 6, 2006, the Court entered a Rule 16 scheduling order that, among other things, set December 1,2006 as the cut-off date for joinder of parties and amendment of the complaint. (D.I. 20). The Court scheduled trial for the week of September 4,2007. (D.I. 23). On December 1, 2006, Jackson filed a motion for class certification to include as plaintiffs every Delaware inmate under a sentence of death. (D.I. 26). On February 23, 2007, the Court granted Jackson's motion for class certification. (D.I. 33). On June 8, 2007, the Court entered an amended scheduling order, extending discovery through October 1, 2007, and re-scheduling trial to commence on October 9,2007. (D.I.43). On August 15, 2007, Plaintiffs filed a motion for leave to amend the complaint and a memorandum of law in support of his motion. In that motion, Plaintiffs sought to add claims under the state Administrative Procedures Act, 29 Del. C. ch. 101. (D.I. 55, 56). On August 26, 2007, Plaintiffs withdrew their motion to amend the complaint. (D.I. 60). On September 25, 2007, this Court entered an order postponing the
1

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 6 of 28 PageID #: 946
previously scheduled trial in light of the United States Supreme Court's grant of certiorari in Baze v. Rees. (D.1. 80). The United States Supreme Court decided Baze v. Rees, 128 S.Ct. 1520 (2008) on April 16, 2008. Following a May 14,2008 status conference, the Court ordered the parties to make various submissions before a pretrial conference set for June 23, 2008. (D.1. 85, 87). At the pretrial conference, an evidentiary hearing was scheduled for September 10. (D.1. 95).
On August 29, 2008, Defendants filed a revised lethal injection protocol. (D.1. 108). Thereafter, the September 10 evidentiary hearing was cancelled, and the case was referred to mediation. (D.I. 109). Mediation was conducted with the Magistrate Judge on October 26, 2008 without result. On October 30, the Court ordered Plaintiffs.to specifically identify what portions, if any, of Delaware's protocol were substantially different from that approved by the Supreme Court in Baze. (D.l. 116). Following submissions by Plaintiffs and Defendants, the Court set a schedule for the filing of dispositive motions and briefing. (D.l. 120).
This is Defendants' opening brief in support of their concurrently filed motion for summary judgment.
2

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 7 of 28 PageID #: 947 SUMMARY OF THE ARGUMENT
Defendants are entitled to judgment in their favor as a matter of law. The decision of the United States Supreme Court in Baze v. Rees establishes that the Delaware lethal injection protocol is constitutional under the Eighth Amendment because it is essentially the same as the Kentucky protocol in that it contains sufficient safeguards to reasonably ensure a humane execution of Plaintiff class representative Robert Jackson.
3

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 8 of 28 PageID #: 948
STATEMENT OF FACTS) During the afternoon of April 3, 1992, Robert Jackson and Anthony Lachette decided to burglarize a house in order to obtain money to buy marijuana. Lachette suggested they break into the home of Elizabeth Girardi. Lachette was familiar with the residence since he was acquainted with one of Mrs. Girardi's children. No one was home when the two broke into the house through the back door. Jackson wore a pair of gardening gloves he had brought with him. Once inside, the two gathered property that included jewelry, rare coins, compact discs, firecrackers, and a camera. After placing the stolen property in paper bags, Jackson and Lachette left the house the way they entered. As they headed toward the driveway, where Jackson had parked the car, they saw Mrs. Girardi, who had arrived home and was walking towards Jackson's car. Lachette decided to flee despite Jackson's attempt to persuade him to stay. Lachette dropped his bag and ran off, leaving Jackson behind. After Lachette ran off, Jackson grabbed an ax from a shed and confronted Mrs. Girardi in the driveway. A struggle ensued, during which Mrs. Girardi fell to the ground, whereupon Jackson struck her several times in the face with the ax. Jackson then loaded his car with the stolen property. Before leaving. Jackson noticed that Mrs. Girardi was still alive. He struck her several more times in the
) The first two paragraphs of facts are drawn directly from the Delaware Supreme Court's opinion in Plaintiff class-representative Robert Jackson's direct appeal of his convictions. Jackson v. State, 643 A.2d 1360, 1363 (Del. 1994).
4

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 9 of 28 PageID #: 949
face with the ax, killing her, and then fled the scene. Shortly thereafter, Jackson
found Lachette walking along the road and picked him up. Jackson told Lachette
that he had killed Mrs. Girardi. Lachette noticed blood on Jackson's gloves and
pant legs. Over the course of the next week, Jackson watched television news
reports and spoke with Lachette and James Burton, his roommate and longtime
friend, about the Girardi murder. During that time, Jackson told Burton that he
had killed Mrs. Girardi.
Jackson was convicted of first degree murder and related offenses, and was
sentenced to death on the murder convictions.2
2 The other members of the Plaintiff class have been sentenced to death for the following murder convictions: Luis G. Cabrera, Cabrera v. State, 840 A.2d 1256, 1260-61 (Del. 2004) (the beatings and murders of Brandon Saunders and Vaughn Rowe); James E. Cooke, State v. Cooke, 2007 WL 2129018, *4 (Del. Super. Ct.) (the burglary, robbery, rape, arson, and murder by strangulation of Lindsey Bonistall); Robert A. Gattis, Gattis v. State, 637 A.2d 808, 811 (Del. 1994) (the murder and burglary of former girlfriend Shirley Slay); Shannon Johnson, State v. Johnson, 2008 WL 4140596 (Del. Super. Ct.) (the murder of Cameron Hamlin, the boyfriend of the mother of Johnson's child; she was also shot by Johnson, but survived); Michael R. Manley, Manley v. State, 709 A.2d 643, 648 (Del. 1998) (the murder of witness Kristopher Heath); Adam W. Norcross, Norcross v. State, 816 A.2d 757, 761 (Del. 2003) (the home invasion, robbery, and murder of Kenneth Warren in front of his wife and child); Allison L. Norman (the murder of Jamell Watson, and attempted murders of several other people in a shooting spree); Juan J. Ortiz, Ortiz v. State, 869 A.2d 285, 289 (Del. 2005) (the murder, decapitation and arson of fonner girlfriend Deborah Clay); Gary W. Ploof, Ploof v. State, 856 A.2d 539,541 (Del. 2004) (the murder for insurance of his wife Heidi Ploof); Luis E. Reyes, Reyes v. State, 819 A.2d 305,308 (Del. 2003) (the beatings and murders of Brandon Saunders and Vaughn Rowe); Steven W. Shelton, Outten v. State, 650 A.2d 1291, 1293 (Del. 1994) (the robbery and murder of Wilson Mannon); Chauncey S. Starling, Starling v. State, 882 A.2d 747, 751 (Del. 2004) (the murders of Darnell Evans and five-year-old Damon Gist, Jr. in a barbershop); David D. Stevenson, Stevenson v. State, 709 A.2d 619, 624 (Del. 1998) (the murder of witness Kristopher Heath); Ralph E. Swan, Swan v. State, 820 A.2d
5

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 10 of 28 PageID #: 950
Since Delaware first carried out an execution by lethal injection in 1992, it has employed a three-drug procedure involving sodium pentathol (also known as thiopental), pancuronium bromide (also known as pavulon), and potassium chloride. This three-drug combination has been used in the executions by lethal injection of 13 condemned prisoners.
On August 29, 2008, the Delaware Department of Correction issued a revised policy, procedure, and protocol (involving the same three drugs) to be used to perform the court-ordered executions by lethal injection of Jackson and all other Delaware inmates sentenced to death. The written protocol requires that the execution begin with the injection of 3 grams of sodium pentathol (2.5% concentration). (D.1. 113, JTVCC Procedure 2.7, Attachment #1 at 4). Sodium pentathol is an anesthetic that renders the condemned unconscious. Baze, 128 S.Ct. at 1527. Following the administration of 3 grams of sodium pentathol, the IV line is flushed with 50 mL of saline solution. (D.1. 113 at 4). The protocol then requires that the IV team wait a period of 2 minutes and for a signal from the Warden before administering the next chemical. (D.!. 113 at 7). During that two-
342, 347 (Del. 2003) (the home invasion, robbery, and murder of Kenneth Warren in front of his wife and child); Ambrose L. Sykes, Sykes v. State, 953 A.2d 261, 264-65 (Del. 2008) (the rape and murder by strangulation of sixty-eight year old Virginia Trimnell); Milton E. Taylor, Taylor v. State, 822 A.2d 1052, 1054 (Del. 2003) (the murder by beating, cutting, and strangulation of his pregnant girlfriend Theresa Williams); Jermaine M. Wright, Wright v. State, 633 A.2d 329, 331 (Del. 1993) (the murder of store clerk Philip Seifert during the course of a robbery of the Hi-Way Inn liquor storelbar); Craig A. Zebroski, Zebroski v. State, 715 A.2d 75, 77 (Del. 1998) (the murder of store clerk Joseph Hammond during the course of a robbery of a Conoco gas station).
6

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 11 of 28 PageID #: 951
minute period, a consciousness check is performed. !d. After the passage of two minutes and the Warden's signal, the IV team next administers 50 mg of pancuronium bromide. (D.I. 113 at 4). Pancuronium bromide is a muscle relaxant. Finally, the IV team administers 240 mEq of potassium chloride. (D.I. 113 at 4). Potassium chloride produces heart failure. Baze, 128 S.Ct. at 1527.
Delaware's written execution protocol provides that the IV team, who prepare the syringes, establish the IV lines, and administer the injection, will be composed of at least two persons who are EMTs, paramedics, certified medical assistants, phlebotomists, or military corpsmen. (D.!. 113 at 1). The execution team, which includes the members of the IV team, is required to conduct at least three simulations of the execution day within ninety days of a scheduled execution. [d. The simulation is to include training on all activities from removal of the condemned from the holding cell through the pronouncement of death, including insertion of IV lines. [d. The protocol also requires that the Warden maintain records of participation in the training exercises. [d. Delaware's written protocol also requires documentation of the procurement, storage, accountability, and transfer of chemicals used to carry out an execution by lethal injection. (D.I. 113 at 2-3). Delaware's written protocol also requires that the IV team prepare two complete sets of syringes; the primary set is color-coded red, and the backup set is color-coded blue. (D.I. 113 at 3-4). Each syringe is individually labeled with the name of its contents and numbered. (D.I. 113 at 3). One member of the IV team completes the preparation and labeling of syringes while the other
7

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 12 of 28 PageID #: 952
observes and verifies. (D.I. 113 at 3-4). A third person, who is designated the Lethal Injection Recorder, documents the chemical preparation on a Chemical Preparation Time Sheet. (D.I. 113 at 4).. The IV lines themselves are appropriately labeled left and right. (D.I. 113 at 5).
Once the condenmed has been strapped to the gurney in the execution chamber, one member of the IV team places the catheters. (D.!. 113 at 5). Before placing any catheter, the IV team members review a previously prepared memo regarding the condenmed's venous access. [d. The IV team member in the execution chamber first verifies that the straps that restrain the condenmed to the gurney do not restrict blood flow. [d. That IV team member selects a site to place the catheter. [d. The protocol prohibits the use of a cut-down to attain venous access. [d.
Once the IV team member selects a site and places a catheter, that IV team member attaches the catheter to the right saline solution set. (D.I. 113 at 6). The other IV team member, who has remained in the injection room, then opens the clamp to permit the flow of saline solution. [d. Once the IV team is confident that the IV line is well-functioning, the IV team member in the injection room signals that there is a successful line. !d. At that time, the IV team member in the execution chamber places a transparent dressing over the catheter and secures the line in place with tape. [d. Only after the right IV line has been established is the process repeated for the left IV line. [d. The members of the IV team continuously monitor the catheter sites and IV lines through a one-way glass
8

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 13 of 28 PageID #: 953
window and by means of a pan-tilt-zoom camera. Id. Plaintiffs' expert had an opportunity to use the camera on a tour of the execution chamber and injection room, and acknowledged that the camera was simple to use, that he could view all portions of a person placed on the gurney, and that its spatial resolution was "very, very impressive." (Deposition of Mark J.S. Heath, M.D., at App-20-2l).
The execution does not commence until the Warden so signals. (D.l. ll3 at 7). One member of the IV team pushes the syringes in the required order while the other observes and verifies. (D.!. ll3 at 8). The Lethal Injection Recorder writes down the time that each syringe begins to be pushed. (See D.l. ll3 at 12). After the syringes of sodium pentathol have been administered, and after the first saline flush has been administered, the IV team waits 2 minutes before administering the pancuronium bromide. (D.l. ll3 at 7). If during the use of the primary IV line, the IV team encounters resistance in the administration of the chemicals, they begin the process over with the backup IV line, starting over with the initial syringe of sodium pentathol using the blue-coded syringe set. (D.l. ll3 at 8). The Warden remains in the execution chamber with the condemned until the execution is complete.
Plaintiffs have alleged that the method of execution by lethal injection violates the Eighth and Fourteenth Amendments to the United States Constitution; that the State Defendants have failed to establish a protocol setting forth dosage and administration of chemicals; that the use of pancuronium bromide serves no legitimate purpose; and that the State Defendants fail to use credentialed and
9

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 14 of 28 PageID #: 954 trained personnel in proximity to the condemned during an execution. (D.I. 2 at 'J['I! 52-55). It is undisputed that 3 grams of sodium pentathol will result in unconsciousness within 60 seconds, and that once unconscious, the condemned would not be able to feel the effects of the pancuronium bromide or potassium chloride. (Deposition of Steven M. Katz, M.D., at App-18-19; Deposition of Mark J.S. Heath, M.D., at App-22, 23; Deposition of Mark Dershwitz, M.D., at App-24).
10

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 15 of 28 PageID #: 955
ARGUMENT DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS' § 1983 CLAIM BECAUSE THE DECISION OF THE SUPREME COURT IN BAZE V. REES ESTABLISHES THAT DELAWARE'S LETHAL INJECTION PROTOCOL IS CONSTITUTIONAL AS A MATTER OF LAW.
Introduction Plaintiffs have filed a complaint pursuant to 42 U.S.c. § 1983, alleging that Delaware's method of execution by lethal injection violates the Eighth and Fourteenth Amendments to the United States Constitution by causing "unnecessary levels of pain and suffering." (D.1. 2 at '1(1). Plaintiffs allege that the Defendants have failed to establish a protocol setting forth dosage and administration of chemicals; that the use of pancuronium bromide serves no legitimate purpose; and that Defendants fail to use credentialed and trained personnel in proximity to the condenmed during an execution. (D.!. 2 at 'J['J[ 5255). Plaintiffs assert that the method and manner of execution in Delaware creates "a grave and substantial risk" that the condenmed "will expenence a constitutionally actionable level of excruciating pain and an unnecessarily protracted death" while "unable to communicate his pain and suffering." (D.1. 2 at '1(10). Specifically, Plaintiffs object to the use of pancuronium bromide (one of the three chemicals used in Delaware's lethal injection procedure) as unnecessary and responsible for an increased risk of suffering. (D.1. 2 at 'J['J[12-l3). Further, Plaintiffs allege that the personnel responsible for the administration of the chemicals lack "the proper and necessary training, experience, or expertise to
11

Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 16 of 28 PageID #: 956
prepare and administer those chemicals." (D.!. 2 at 'J[31). Based on these allegations, Plaintiffs seek injunctive relief enjoining the execution of any member of the Plaintiff class "until the DOC's lethal injection protocol is brought into conformity with constitutional standards." (D.l. 2 at 24, 'lIB). If not enjoined in its entirety, Plaintiffs seek to prevent the use of pancuronium bromide and to prevent the conduct of the lethal injection procedure by personnel who they allege lack sufficient training, credentials, certification experience, or proficiency. (D.!. 2 at 26, 'll'llC-D).
However, for the reasons that follow, Defendants are entitled to summary judgment under Rule 56(c): the record is devoid of any genuine dispute of material fact that the Delaware lethal injection protocol is constitutional in that it is not substantively different from the Kentucky protocol approved in Baze and contains additional safeguards to ensure that the Plaintiff class is humanely executed.
Standard of Review Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter oflaw." Fed. R. Civ. P. 56(c). [T]he plain language of Rule 56(c) mandates the entry of summary jUdgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
12

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact is one that "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259 (1986). The moving party bears the initial burden of demonstrating the absence of material issues of fact. Celotex Corp., 477 U.S. at 323. However, the moving party need not support its motion with affidavits or other documents disproving the nonmoving party's claim, but need only "show - - that is point out to the district court - - that there is an absence of evidence to support the nonmoving party's case." Id. at 325. The nonmoving party must go beyond the pleadings and, through affidavits or other evidence, demonstrate the existence of a genuine issue of material fact. Id. at 314. The district court is required to construe the evidentiary record so as to give the nonmoving party reasonable factual inferences. Hampton v. Borough of Tinton Falls Police Dept., 98 F.3d 107, 112 (3d Cir. 1996). Summary judgment should be granted if the court finds, after consideration of all the evidence, that no reasonable trier of fact could find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
Merits of the Argument The Eighth Amendment to the United States Constitution provides that no "cruel and unusual punishments" shall be inflicted. Capital punishment, however, is constitutional. Baze v. Rees, 128 U.S. 1520, 1529 (2008) (plurality) (citing Gregg v. Georgia, 428 U.S. 153,177 (1976». "Punishments are cruel when they
13

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involve torture or a lingering death. . .. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." In re Kemmler, 136 U.S. 436, 447 (1890). But before a risk of harm can qualify as cruel and unusual punishment, "the conditions presenting the risk must be 'sure or very likely to cause serious illness and needless suffering,' and give rise to 'sufficiently imminent dangers.'" Baze, 128 S.Ct. at 1530-31 (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993) (emphasis added in Baze». To prevail on a claim that the risk of harm violates the Eighth Amendment, a plaintiff must demonstrate a "substantial" and "objectively intolerable risk" of harm. Baze, 128 S.Ct. at 1531 (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 (1994) (internal quotations omitted». Indeed, the condenmed prisoner must demonstrate that the procedure at issue is "cruelly inhumane." Baze, 128 S.Ct. at 1533 (quoting Gregg, 428 U.S. at 175 (internal quotations omitted». Here, Plaintiffs cannot meet this standard. (a) There is no genuine issue as to any material fact.
Plaintiffs do not suggest that Delaware's lethal injection protocol, if successful in the administration of 3 grams of sodium pentathol to the condenmed, is unto itself cruel and unusual. It is undisputed that the administration of 3 grams of sodium pentathol would render a person unconscious within one minute and unable to feel the effects of any later administered chemicals thereby foreclosing any suggestion that the procedure is inhumane. (See Deposition of Steven M. Katz, M.D., at App-18-l9; Deposition of Mark I.S. Heath, M.D., at App-22, 23; Deposition of Mark Dershwitz, M.D., at App-24). The Court, in Baze, noted that
14

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"[t]he proper administration of the first drug [sodium pentathol] ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs." 128 S.Ct. at 1527. Thus, Plaintiffs' complaint is that the risk of maladministration of the sodium pentathol is substantial and objectively intolerable. That is, Jackson must demonstrate that the risk that the condemned would not receive sufficient sedation is "sure or very likely." Not only is there no evidence to support this contention, but the Supreme Court in Baze held that Kentucky'S three-drug protocol (a protocol substantively identical to Delaware's protocol) did not create "a demonstrated risk of severe pain." 128 S.Ct. at 1537. Specifically, the Supreme Court found that the petitioners in Baze did not show "that the risk of an inadequate dose of the first drug is substantial." 128 S.Ct. at 1533.
In reaching the conclusion that Kentucky's lethal injection protocol is constitutionally sound, the Supreme Court looked to the specific provisions of the written protocol for evidence that the procedure would not create a substantial or imminent risk of severe pain. The Supreme Court particularly noted the simplicity of the preparation of the sodium pentathol was such that even a layperson could perform the task. 128 S.Ct. at 1533. Kentucky'S written protocol requires those persons administering the chemicals to have at least one year of professional experience as a phlebotomist, paramedic or similar position, and those persons must participate in multiple training sessions every year. 128 S.Ct. at 1533-34. Those qualified persons are responsible for the placement of the IV catheters, the
15

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establishment of two lines, and the preparation of two sets of the lethal injection chemicals. 128 S.Ct. at 1534. The Supreme Court found the presence of the warden and deputy warden in the execution chamber with the condemned allowed them to watch for signs of IV problems and the consciousness of the condemned. [d. The Court concluded that in light of the above referenced safeguards, "we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation." [d. And the Supreme Court explained, "A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard." 128 S.Ct. at 1538.
Delaware's lethal injection protocol is substantively identical to Kentucky's validated protocol. (See D.l. 117, Plaintiffs' Response to the Court's October 30, 2008 Order, at 1 ("Plaintiffs have not identified any substantive differences between the two protocols as written.") (emphasis in original». In fact, the Delaware protocol provides even more safeguards than the Kentucky protocol. Delaware uses the same three-drug protocol, including the same amount of the fast-acting barbiturate (3 grams of sodium pentathol). (D.!. 113 at 4). The Delaware protocol, unlike Kentucky's, provides that the mixing of all chemicals be performed by qualified, licensed and trained personnel. (D.l. 113 at 1, 3). Delaware's lethal injection protocol similarly requires qualified personne13 for the
3 Delaware's protocol, precisely like Kentucky'S, requires that the members of the IV team be Certified Medical Assistants, Phlebotomists, Emergency Medical
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insertion of the IV catheters and, unlike the Kentucky protocol, also requires qualified personnel for the actual administration of the chemicals. (D.1. 113 at 7). The personnel must participate in several on-site training exercises prior to a scheduled execution. (D.1. 113 at 1). Like Kentucky, Delaware requires that two sets of lines and chemicals in syringes be prepared for use at any execution. (D.1. 113 at 3). Not only are two sets of syringes prepared, the sets are color-coded and labeled to avoid any potential confusion. (D.1. 113 at 3-4). And, like Kentucky, the warden remains in the execution chamber throughout the execution proceedings, standing in close proximity to the condemned. (See D.1. 113 at 7). In Kentucky, the warden checks for consciousness after one minute, while in Delaware a full two-minute waiting period is provided after the administration of the sodium pentathol to ensure that the barbiturate has had more than ample time to act. Id. After the two-minute waiting period, a consciousness check is performed - the warden calling the inmate's name and an IV team member using tactile stimulation to assess consciousness. Id; see Baze, 128 S.Ct. at 1571 (Ginsburg, J., dissenting) (describing similar consciousness checks with approval as providing "a degree of assurance - missing from Kentucky's protocol- that the first drug has been properly administered."). In addition, Delaware has installed a pan-tilt-zoom camera to allow members of the IV team to monitor the catheters, IV lines and the facial movements of the condemned before and during the execution. (D.!. 113 at 6). Thus, Delaware's written lethal injection protocol is Technicians, Paramedics, or Military Corpsmen. (D.1. 113 at 1).
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substantively similar to, and actually provides more safeguards than, the Kentucky
protocol determined to be acceptable by the United States Supreme Court in Baze.
And as a result, Delaware's protocol is constitutional.4
(b) Delaware need not alter its humaue method of execution
Just as in Baze, Plaintiffs here suggest several changes to the lethal
4 Plaintiffs contend that Delaware's protocol remains unconstitutional because certain items are not included in the protocol (just as in Kentucky), and because Delaware allegedly has a history of "recorded problems." (D.1. 117 at 6). Plaintiffs carmot point to any execution in Delaware where the conderrmed experienced "serious illness and needless suffering." Baze, 128 S.Ct. at 1531 (internal quotations omitted). Notably, the Baze court approved Kentucky's protocol newly revised to increase the dosage from 2 to 3 grams of sodium thiopental, although no executions had actually taken place using the revised protocol. See id. at 1528 (Kentucky protocol was revised in 2004, while only execution by lethal injection had occurred in 1999). Moreover, as the court noted in Raby v. Johnson, 2008 WL 4763677, *4 (S.D. Tex.):
Raby requests additional discovery that he hopes will uncover specific instances in which an execution encountered complications, or in which the written protocol was not followed. Assuming that Raby could develop such facts through additional discovery, they would be insufficient to avoid summary judgment. ... [Tlhere is no basis to dispute that the Texas execution protocol is substantially similar to the Kentucky protocol upheld in Baze. Therefore, under the safe harbor established by Baze, Raby carmot demonstrate that the Texas procedure violates the Eight Amendment.
In Clemons v. Crawford, 2008 WL 2783233, *2 (W.D. Mo.), the plaintiffs also argued that Missouri had historically failed to adequately train personnel. The court noted that "the law does not allow the plaintiffs to select the most qualified medical personnel to serve on an execution team" or "allow plaintiffs input into who will be performing the executions." [d. And in Arkansas, the Department of Correction twice amended the lethal injection protocol since four allegedly "botched" executions took place under the original protocol. See Nooner v. Norris, 2008 WL 3211290, *3, *12 (E.D.Ark.). The district court nevertheless found that the newly added consciousness check and delay after the administration of the sodium thiopental, among other aspects of the current protocol, were sufficient to render the new protocol constitutional. [d. at *12-*15.
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injection protocol that they contend would reduce the risk of causing a condemned prisoner unnecessary pain and suffering. "[A] condemned prisoner cannot successfully challenge a State's method of execution merely by showing a slightly or marginally safer alternative." Baze, 128 S.Ct. at 153l. The Baze Court rejected most of the proposed alterations to the protocol, noting:
The risks of maladministration they have suggested - such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel - cannot remotely be characterized as "objectively intolerable." Kentucky's decision to adhere to its protocol despite those asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment. 128 S.Ct. at 1537-38. Here, Plaintiffs have suggested several features they believe would limit the risk of pain to the condemned. As all the experts in this case agreed, however, an average-sized person would be rendered unconscious from 3 grams of sodium pentathol within 60 seconds. (Deposition of Steven M. Katz, M.D., at App-18-19; Deposition of Mark J.S. Heath, M.D., at App-22, 23; Deposition of Mark Dershwitz, M.D., at App-24). Furthermore, the inmate would remain unconscious for approximately 280 minutes. (App-24). Following the administration of 3 grams of sodium pentathol, the probability of consciousness is approximately .000003 %. (App-24). Because the risk of maladministration of the sodium pentathol is so remote given the safeguards provided in the protocol, any alterations to procedures occurring subsequent to the administration of the sodium pentathol would have limited value in reducing the overall risk. Baze, 128 S.Ct. at
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1535 n.5. Plaintiffs have not proposed any alternative method of execution that would significantly reduce an unnecessary risk that the condemned prisoner would suffer.
To the contrary, Plaintiffs have expressly stated that "[e]thical considerations prevent class counsel from suggesting acceptable, i.e. constitutional methods for executing their clients." (Plaintiffs'Response to Defendants' 1st Set of Interrogatories, App-16). Plaintiffs nonetheless, in response to a written interrogatory, stated that
The [Delaware] execution process may be made to comport with the Eighth Amendment by coming into compliance with the American Veterinary Medical Association ("AVMA") standards for euthanasia of animals. Similarly, the execution process may be made to comport with the Eighth Amendment if a properly trained, licensed, and experienced anesthesiologist induces and monitors anesthesia and supervises the execution. (App-17). The Supreme Court clearly rejected the attempts to engraft animal euthanasia standards to the execution of humans. Baze, 128 S.Ct. at 1536 ("veterinary practice for animals is not an appropriate guide to humane practices for humans"). The Supreme Court also described the asserted need for the participation of an anesthesiologist as "nothing more than an argument against the entire procedure." Id. at 1536. Thus, the Supreme Court in upholding as constitutional Kentucky's lethal injection protocol has already rejected the two alternatives offered by Plaintiffs in the present litigation. (c) Post-Baze Since the United States Supreme Court decision in Baze v. Rees was issued
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in April 2008, several courts have considered various protocols in light of that decision. Several states have proceeded with executions. Through December IS, 2008, nine states have carried out 36 executions by lethal injection. Those nine states are: Georgia, Mississippi, Virginia, South Carolina, Texas, Oklahoma, Florida, Ohio, and Kentucky. No lethal injection protocol has been found to be unconstitutional under the Baze standard. To the contrary, courts have found summary judgment to be appropriate in states where the lethal injection protocol is substantially similar to the Kentucky protocol. See, e.g., Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008) (finding the Virginia lethal injection protocol to be substantially similar to the Kentucky protocol and affirming district court's grant of summary judgment); Raby v. Johnson, 2008 WL 4763677, *3 (S.D.Tex.) (holding that the Texas execution procedure lies within the "safe harbor created by Baze" and granting summary judgment); Nooner v. Norris, 2008 WL 3211290 (E.D.Ark.) (finding Arkansas' lethal injection protocol substantially similar to the protocols approved in Baze and granting summary judgment); Clemons v. Crawford, 2008 WL 2783233, *2 (W.D.Mo.) (finding revised Missouri protocol "constitutional on its face as judged by the standards established by the Supreme Court" and granting summary judgment). See also In re Belisle, _So.2d _ , 2008 WL 4447593 (Ala. 2008) (finding "Alabama's use of lethal injection as a method of execution does not violate the Eighth Amendment to the United States Constitution."); Henyard v. State, 992 So.2d 120, 130 (Fla. 2008) (finding that the Florida protocols "do not violate any of the possible standards"). Delaware's lethal
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Case 1:06-cv-00300-SLR Document 122 Filed 12/19/08 Page 26 of 28 PageID #: 966 injection protocol meets even the most stringent standard discussed in Baze, and consequently, summary judgment is appropriate. (d) Conclusion In sum, Delaware's written lethal injection protocol sets in place numerous safeguards that ensure the successful delivery of 3 grams of sodium pentathol, and in so doing, ensures that the condemned is unconscious before the pancuronium bromide and potassium chloride are administered. Plaintiffs' expert, Dr. Mark Heath, agreed that "if the thiopental is delivered into the circulation in a 3-gram dose and delivered throughout the circulation and it exerts the effects of 3-grams of thiopental on the brain, it will necessarily be humane." (App-23). Thus, there is no material dispute of fact, and summary judgment is appropriate for Defendants.
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CONCLUSION For the above reasons, Defendants are entitled to judgment in their favor and against the Plaintiff class.
Respectfully submitted, STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Elizabeth R. McFarlan Elizabeth R. McFarlan, ID No. 3759 Gregory E. Smith, ID No. 3869 Marc P. Niedzielski, ID No. 2616 Deputy Attorneys General 820 North French Street, 7th Floor Wilmington, Delaware 19801 (302) 577-8500
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CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2008, I electronically filed the attached
Defendants' Opening Brief in Support of their Motion for Summary Judgment with the
Clerk of Court using CM/ECF which will send notification of such filing to:
Michael Wiseman, Esq. Assistant Federal Defender Suite 545 West - The Curtis Center Philadelphia, PA 19106
/s/ Elizabeth R. McFarlan Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 3759 e1izabeth.mcfarlan@state.de.us

 
 Case 1:06-cv-00300-SLR Document 124 Filed 01/16/09 Page 1 of 36 PageID #: 996

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

______________________________

:

ROBERT W. JACKSON, III,

:

Civil Action No.

:

06-CV-300

Plaintiff,

:

: United States District Judge

-against-

:

Sue L. Robinson

:

CARL C. DANBERG, et al.,

:

Electronically Filed

:

Defendants.

:

______________________________

:

CLASS ACTION

PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dated: January 16, 2009

Michael Wiseman Helen A. Marino Maria K. Pulzetti Capital Habeas Corpus Unit Federal Community Defender Office for the Eastern District of Pennsylvania Suite 545 West – The Curtis Center Philadelphia, PA 19106 215-928-0520

Case 1:06-cv-00300-SLR Document 124 Filed 01/16/09 Page 2 of 36 PageID #: 997
TABLE OF CONTENTS TABLE OF CONTENTS .......................................................................................... i TABLE OF AUTHORITIES ................................................................................... ii STATEMENT OF THE NATURE AND STAGE OF PROCEEDINGS ............... 1 SUMMARY OF ARGUMENT ............................................................................... 2 STATEMENT OF FACTS ...................................................................................... 5
I. Errors in Prior Executions ................................................................... 5 A. Dosage Errors ........................................................................... 5 B. Failures to Follow Protocol ....................................................... 8
II. No Alternative to Peripheral Venous Access .................................... 13 ARGUMENT ......................................................................................................... 15
I. Defendants’s Misreading of Baze ...................................................... 15 II. Defendants’ Record of Errors ........................................................... 20
A. Dosage Errors ......................................................................... 20 B. Failures to Follow Protocol ..................................................... 21 III. The Incomplete Protocol ................................................................... 23 IV. Defendants’ Other Arguments ........................................................... 25 A. Plaintiffs Have Proposed an Alternative ................................. 25 B. Other Lethal Injection Cases are Different ............................. 27 V. Specific Facts Showing a Genuine Issue for Trial ............................ 31 CONCLUSION ...................................................................................................... 32
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TABLE OF AUTHORITIES FEDERAL CASES
Alderman v. Donald, (N.D.Ga. May 2, 2008) ...................................................... 18 Baze v. Rees, 128 S. Ct. 1520 (2008) ........................................................ 2, passim Clemons v. Crawford, 2008 WL 2783233 (W.D. Mo.) ........................................ 29 Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008) .......................................... 29, 30 Farmer v. Brennan, 511 U.S. 825 (1994) .............................................................. 16 Helling v. McKinney, 509 U.S. 25 (1993) ...................................................... 16, 17 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .. 15 Nelson v. Campbell, 541 U.S. 637 (2004) ............................................................ 13 Nooner v. Norris, 2008 WL 3211290 (E.D. Ark.) ................................................ 29 Raby v. Johnson, 2008 WL 4763677, (S.D. Tex.) ................................................. 27
RULES Fed. R. Civ. P. 56(c) ............................................................................................. 15
ii

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STATEMENT OF THE NATURE AND STAGE OF PROCEEDINGS On December 19, 2008, Defendants filed a Motion for Summary Judgment
(D.I. 121), an Opening Brief in Support of Their Motion for Summary Judgment (D.I. 122) (hereafter, Defendants’ Brief), and an Appendix (D.I. 123). Plaintiffs, through undersigned counsel, hereby respond.
Because Defendants cannot show there is no genuine issue as to any material fact, this Court should not enter judgment in Defendants’ favor.
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SUMMARY OF ARGUMENT Defendants argue lethal injection in Delaware is constitutional under the Eighth Amendment because the protocol is “essentially the same” as the Kentucky protocol examined by the Supreme Court in Baze v. Rees, 128 S.Ct. 1520 (2008). For a number of reasons, Defendants are wrong; any facial similarity between Delaware’s protocol and Kentucky’s does not entitle Defendants to summary judgment. 1. Substantial similarity between written protocols is not the Baze standard. The concept of substantial similarity is discussed in Baze in the context of the standard for a stay of execution to permit factual development for a plaintiff with an undeveloped factual record. In those narrow circumstances, which do not apply here, Baze held that a district court has discretion to deny a stay if the state’s protocol is substantially similar to Kentucky’s. 2. Focused as it is on the Delaware and Kentucky written protocols, Defendants’ motion ignores entirely the rich factual record developed in the discovery process. The record shows Defendants have never conducted an execution by lethal injection that met the requirements of th then-existing protocol. Deviations, which include inter alia failures to train the executioners, failures to administer drugs in called-for dosages, and a failure to administer adequate anesthesia, defeat summary judgment. These failures (a) undercut Defendants’ substantial similarity arguments
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– after all, if Defendants cannot consistently follow their protocol, it matters little if it is similar, or even identical to, Kentucky’s protocol; and (b) prove that, in Delaware, there exists a substantial risk that a prisoner sentenced to death will suffer excruciating pain at his execution, despite similarity between Delaware’s written protocol and Kentucky’s.
3. Defendants’s protocol is incomplete. It fails to set forth the procedures Defendants will follow in the event executioners are not able to establish peripheral venous access. In that case, which Defendants’ expert says is to be expected in some number of executions, Defendants are effectively “off-protocol” – without guidelines, and unable to show that they can and will insure that the execution comports with the Eighth Amendment.
4. Defendants blatantly misstate the record when they argue Plaintiffs have not proposed an alternative. After the Supreme Court clarified the standard in Baze, requiring a feasible alternative, Plaintiffs presented one to this Court and proffered expert testimony regarding it.
5. Finally, Defendants’ reliance on other courts that have granted summary judgment motions is misplaced. Defendants have failed to cite any case, and to Plaintiffs’ knowledge there are none, in which summary judgment was granted when the plaintiffs, through discovery, had been able to uncover a pattern of constant errors
3

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in the state’s implementation of its execution protocol. Summary judgment based on a “similar to Kentucky” argument has applied only when plaintiffs have not been able to prove errors and/or failures to follow the written protocol.
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STATEMENT OF FACTS I. Errors in Prior Executions
Each of the thirteen executions by lethal injection in Delaware has failed to comply with the written protocol in effect at the relevant time. Defendants’ failures to ensure that prisoners are administered correct dosages of the lethal drugs, and failures to ensure that IV team members have attended the required training sessions and read the relevant portions of the execution protocol, in combination paint an alarming picture of lethal injection in Delaware.
A. Dosage Errors Discovery shows recorded dosage errors in at least five of the prior thirteen Delaware executions by lethal injection; this is an error rate of thirty-eight percent (38%). In an additional three executions, as well as in one of the executions with a recorded dosage error, execution team members failed to record the dosage of one or more of the drugs. This failure to record happened in four of the thirteen prior executions, or thirty percent (30%). All told, in eight of the prior thirteen Delaware executions, or over sixty-one percent (61%), Defendants cannot prove the correct dosages of the three lethal drugs were administered to the prisoners. Execution records show that five prisoners in Delaware were given the wrong dose of one of the drugs, potassium chloride. Mr. Red Dog was given 240mEq of
5

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potassium chloride, Discovery, 1152,1 and Mr. Clark, Mr. Lawrie, Mr. Weeks, and Mr. Steckel were given 200mEq of potassium chloride. Discovery, 1711 (Clark); 1729, 1733 (Lawrie); 1775, 1778 (Weeks); 1849, 1870 (Steckel). At all relevant times, the Delaware protocol called for the administration of 100mEq of potassium chloride. Defendants’ expert, Dr. Mark Dershwitz, acknowledged in his trial testimony that these dosages were given in error. Dershwitz deposition 9/24/07, 4749.2
Moreover, in four other executions, it is unknown whether the IV team administered correct dosages, because dosages of one or more of the drugs were not recorded. No dosages at all were recorded for the execution of Mr. Sullivan. Discovery, 1759. In the executions of Mr. Shelton, Mr. Flamer, and Mr. Clark, no dosage of pancuronium bromide was recorded. Discovery, 1622 (Shelton); 1667
1Plaintiffs are not attaching excerpts from depositions or document production because of confidentiality concerns. The relevant deposition transcripts and Batestamped document production from Defendants to Plaintiffs were provided to this Court under seal on July 18, 2008. For ease of syntax, the Document Production from Defendants to Plaintiffs is referred to in citations as “Discovery,” followed by the Bate-stamp number.
2When trial was scheduled in 2007, Dr. Dershwitz was unavailable, and therefore his trial deposition was taken on Sept. 24, 2007. The very next day, the Supreme Court granted certiorari in Baze v. Rees, and this case was stayed on September 26, 2007. D.I. 80. The September 24 deposition was filed with the Court on July 18, 2008, along with other discovery.
6

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(Flamer); 1711 (Clark). In the most recent execution, that of Mr. Steckel, the first IV line infiltrated.3
Reportedly, the IV team noticed the infiltration during the injection of the first drug, sodium thiopental. Deposition of John Doe 2, 5/21/2007, 117-118; Deposition of John Doe 3, 5/25/2007, 109. When the team reportedly switched to the second line, they should have administered a second dose of thiopental, because it is doubtful that the full dose of thiopental was delivered through the problematic IV line. Defendants’ records indicate Mr. Steckel was not administered a second dose. Discovery, 1849 (Death Investigation Report - Final); 1870 (List of Drugs Administered to Brian Steckel). Thus, as far as records indicate, Mr. Steckel’s execution violated the standard articulated in Baze, because he was administered a paralytic drug and then an excruciating heart-stopping drug without a guarantee that he received an adequate does of the anesthetic drug.
Defendants have administered erroneous dosages in five of Delaware’s thirteen executions by lethal injection. In more than half of the executions, Defendants cannot prove they administered the requisite dosages of the lethal drugs. Defendants have
3When an IV line infiltrates, the catheter comes out of the vein and delivers the drug directly into the tissue instead of the bloodstream. Because the drug is not delivered into the circulation, “that person would not be expected to lose consciousness in a minute or two.” Dershwitz deposition, 9/24/07, 41.
7

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administered paralyzing and heart-stopping drugs after the IV line delivering anesthetic failed, without ensuring an adequate dosage of anesthetic.
B. Failures to Follow Protocol The record shows Defendants routinely fail to follow the “safeguards” in the lethal injection protocol. Time and time again, Defendants have allowed executions to go forward when members of the IV team have not attended any training sessions, and when IV team members have not completed the minimum training required by the then-existing protocols. Defendants have also allowed executions to go forward when members of the IV team have not read the portions of the protocol describing their tasks, again contrary to the written protocol. Execution team members testified in deposition that they did not attend the required practice sessions prior to performing executions. Defendants’ lethal injection protocols since 1992 have stated that execution team members shall attend practice sessions in the period immediately prior to an execution. See, e.g., Discovery, 15 (1992), 144 (1993), 221 (1995), 291 (1999), 368 (2000), 429 (2005), 2469 (8/31/07), 2529 (10/2/07); D.I. 113, 1 (8/29/08 protocol). In 1992, the procedure for preparations within seven days of execution read: “The execution team shall be notified establishing times and dates for at least two (2) practice sessions prior to the execution as determined by the Delaware Correctional Center (DCC)
8

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Warden.” Discovery, 15. It was the Warden’s responsibility to arrange these practice sessions. This wording remained essentially unchanged until 2007, when the section entitled “Training” was added. This new section requires the execution team to conduct a minimum of three simulations within one month of execution, including “training on all activities from removal of the ISDP [inmate sentenced to the death penalty] from holding cell through pronouncement of death excluding insertion of IV lines and introduction of chemicals or saline.” Id., 2529. The 2008 protocol now requires the insertion of two IVs into a volunteer. D.I. 113, 1. The protocol fails to specify whose obligation it is to arrange the simulations.
Execution team members have conducted executions in Delaware without attending any training sessions, or without attending the requisite number of training sessions. John Doe 1, who participated in two executions, and John Doe 3, who has participated in six executions, have never attended a practice session. John Doe 1, Deposition 7/6/07, 52-53; John Doe 3, Deposition 5/25/07, 77-78. The only training of John Doe 2, who has participated in eleven executions, was a (single) “dry run through” without starting an IV. John Doe 2, Deposition 5/21/07, 82-83. Jane Doe 1 testified she attended two practice sessions prior to the Pennell execution in 1992, but did not attend any practice sessions prior to the subsequent six executions in which she participated. She also described the practice sessions as “ludicrous” and
9

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“a farce,” explaining that they focused on security issues. She said she did not practice mixing drugs, inserting IV catheters, drawing syringes, or injecting drugs. Jane Doe 1, Deposition, 6/5/07, 52-56.
Injection team members also do not consistently check the equipment and materials prior to an execution, although the protocol requires two inventory checks. The protocols in place during all executions by lethal injection required members of the injection team to conduct an equipment check within one week of the execution date, and to re-inventory the supplies on the day of execution upon entering the injection room. The supply check list was to be completed, dated, and initialed by a member of the execution team. Discovery, 30 (March 1992 protocol), 159 (February 1993 protocol), 236 (September 1995 protocol), 310 (March 1999 protocol), 397 (October 2000 protocol), 444 (August 2005 protocol). Plaintiffs do not know whether this requirement remains in the present protocol; although it is not included in the portions of the present protocol that have been disclosed to Plaintiffs, D.I. 113, 1-14 (August 2008 Protocol), it may be included in redacted portions.
Despite this requirement, one execution team member has conducted executions without seeing any paperwork at all (John Doe 1, Deposition 7/6/07, 56); IV team members state it is not their responsibility to fill out any paperwork (John Doe 2, Deposition 5/21/07, 66; John Doe 3, Deposition 5/25/07, 43); and at least one
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is entirely unfamiliar with the contents of the supply checklist, and thus unfamiliar with the medical supplies available during a lethal injection (John Doe 2, Deposition 5/21/07, 92-93).4
Defendants also have conducted executions without showing the IV team the step-by-step directions in the lethal injection protocol. Some IV team members have seen only the dosages and/or the supply checklist. John Doe 1 was not shown any written protocol or other paper before administering lethal injections. John Doe 1, Deposition 7/6/07, 56. John Doe 3 was shown the one-page “Contents of Syringes” and the two-page Supply Checklist from the protocol, but not the sections of the protocol describing the role of the IV team, including: “Pre-Execution Inventory and Equipment Check,” “Obtaining Drugs,” “IV Set-up Procedure,” “Injection Procedure,” and “When the Signal to Commence Shall be Given by the Warden.” John Doe 3, Deposition 5/25/07, 94.
As the chart below shows, Defendants have not conducted a single execution that met the requirements of their own protocol at the time:
4John Doe 2 testified that he was not aware whether cut-down supplies were available, although the supply checklist included topical anesthetic, a “cut-down set,” two scalpels and two blades, see e.g., Supply Checklist (8/1/05 Protocol), Discovery at 451-52. (This was changed in the August 2007 protocol, which expressly bars cutdowns but leaves unaddressed the alternative means of achieving venous access to be used if peripheral venous access is not obtainable.)
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Execution Errors and Failures to Follow Protocol

Prisoner, Date of Execution

IV Team

Steven Brian PENNELL, 3/14/1992
James Allen “RED DOG,” 3/3/1993
Kenneth DESHIELDS, 8/31/1993
Andre DEPUTY, 6/23/1994
Nelson SHELTON, 3/17/1995
William FLAMER, 1/30/1996
James CLARK, 4/19/1996
David LAWRIE, 4/23/1999
Willie SULLIVAN, 9/24/1999
Dwayne WEEKS, 11/17/2000
David DAWSON, 4/26/2001
Cornelius FERGUSON (HAMEEN), 5/25/2001
Brian STECKEL, 11/4/2005

Jane Doe 1 John Doe 1
Jane Doe 1 John Doe 1
Jane Doe 1 John Doe 2
Jane Doe 1 John Doe 2
Jane Doe 1 John Doe 2
Jane Doe 1 John Doe 2 Jane Doe 2
Jane Doe 1 John Doe 2 Jane Doe 2
John Doe 2 John Doe 3
John Doe 2 John Doe 3
John Doe 2 John Doe 3
John Doe 2 John Doe 3
John Doe 2 John Doe 3
John Doe 2 John Doe 3

Dosage Error

Team Member w/ Inadequate Training

X

Team Member Not Shown Protocol
X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

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II. No Alternative to Peripheral Venous Access The written protocol does not include any alternative to peripheral venous
access. Here, the Defendants’ own expert, Dr. Dershwitz, testified that there should be a “Plan B” to establish venous access should peripheral IV insertion not be achievable. Dershwitz deposition 9/10/07, 136-38; Dershwitz deposition 9/24/07, 60.
Dr. Dershwitz testified that an execution protocol ought to include a contingency plan in the event that peripheral venous access is not attainable. He said that failure to obtain peripheral access has happened in executions around the country; therefore, procedures should be in place in the event that placement cannot be obtained.5 Such contingencies could include placement of an IV in the neck or groin (a “central line”), which Dr. Dershwitz testified would require “a greater degree of skill” than placement of a peripheral IV; if people with such skills are not part of the execution team,6 then the execution should be postponed to find and use people
5Indeed, Nelson v. Campbell, 541 U.S. 637, 640 (2004), notes that the authorities there could not obtain peripheral access because “due to years of drug abuse, petitioner has severely compromised peripheral veins, which are inaccessible by standard techniques for gaining intravenous access, such as a needle.” According to Dr. Dershwitz, IV drug use and obesity are among the reasons why it is difficult, if not impossible, to obtain peripheral IV access in some prisoners. Dershwitz deposition 9/24/07, 60.
6Neither paramedics nor EMTs in Delaware are licensed to place central lines. See, e.g., John Doe 2, Deposition 5/21/07, 96 (EMTs are not licensed to place central lines, but may do so under the supervision of a physician, if the physician takes
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with the necessary competence. Dershwitz deposition 9/10/07, 136-38; Dershwitz deposition 9/24/07, 58-61.
Delaware’s protocol, like Kentucky’s, proposes only to postpone the execution procedure if venous access cannot be obtained after one hour.7 Nothing in the written protocol describes how Defendants will proceed to remedy the problem at a subsequent scheduled execution date. Despite Defendants’ own expert’s testimony, Defendants appear to reserve, without any written procedures or guidelines, the unfettered right to determine, by some unspecified means and by some unspecified person, whether and what alternative method it will use in the event peripheral venous access is not achieved. And, because the written protocol does not address what alternative method will be used, it fails to guarantee that qualified, competent medical personnel be present to obtain alternative access. What is clear is that many of the professionals presently listed as suitable members of the lethal injection team are not licensed or competent to establish non-peripheral venous access.
responsibility for the procedure). 7“If the IV team cannot secure a primary and back-up site within one (1) hour,
the Governor’s Office shall be contacted by the Commissioner and a request shall be made that the execution be scheduled for a later date.” D.I. 113, 5-6.
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ARGUMENT Summary judgment should be granted only when the pleadings, depositions, answers to interrogatories, and admissions, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). All facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is not appropriate where, as here, the nonmoving party has set forth specific facts showing a genuine issue for trial. Moreover, Baze makes clear that a “substantially similar” protocol alone, without a record of problem-free implementation, does not satisfy the Eighth Amendment. I. Defendants’s Misreading of Baze In Baze v. Rees, 128 S.Ct. 1520 (2008), a three-Justice Plurality held that to prove that a state’s method of execution violates the Eighth Amendment, prisoners must demonstrate that the challenged protocol would subject them to a “substantial risk of serious harm.” Baze, 128 S.Ct. at 1532. The Plurality recognized that such a risk exists where an inadequately anesthetized prisoner is given pancuronium and potassium. Id. at 1533 (“failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the
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injection of potassium chloride.”).8 The Plurality further held that a method of
execution is unconstitutional where it imposes a substantial risk of serious harm, and
there is a feasible and readily available alternative that significantly reduces the risk.
Id. at 1532.
Baze relied upon a line of Eighth Amendment cases, including Helling v.
McKinney, 509 U.S. 25 (1993), and Farmer v. Brennan, 511 U.S. 825 (1994), that
expressly state an Eighth Amendment claim may succeed based upon a proven risk
of future harm. In Helling, a case concerning a prisoner’s exposure to second-hand
smoke, the Court held:
We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.
That the Eighth Amendment protects against future harm to inmates is not a novel proposition. . . . We thus reject petitioners’ central thesis that only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment.
8Defendants make much of phrases pulled out of context from Baze purportedly describing the standard for an Eighth Amendment violation. See Defendants’ Brief at 14 (“‘sure or very likely to cause serious illness and needless suffering;’” “‘objectively intolerable risk of harm’”). Defendants ignore the crucial fact that the Supreme Court held in Baze that a risk of maladministration of thiopental is constitutionally unacceptable.
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509 U.S. at 34. Defendants argue, “Baze establishes that the Delaware lethal injection
protocol is constitutional under the Eighth Amendment because it is essentially the same as the Kentucky protocol.” Defendants’ Brief at 3. This gross overstatement obscures the concerns that led to the Court’s use of this language. The “substantially similar” language from Baze demonstrated the Court’s particular concern that lethal injection litigation would be used to delay executions. Accordingly, Baze set forth a rigorous standard for obtaining stays of execution:
Justice STEVENS suggests that our opinion leaves the disposition of other cases uncertain, see post, at 1542 - 1543, but the standard we set forth here resolves more challenges than he acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard. 128 S.Ct. at 1537. In other words, a plaintiff whose state has a protocol “substantially similar” to Kentucky’s will not be able to stay his execution in order to conduct discovery and build a record of the practice of lethal injection in that state. Such a plaintiff must bring suit, and develop that record, without needing a stay. Plaintiffs in this case have now developed just that record.
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Defendants further ignore that the Supreme Court in Baze evaluated the risk of pain to the prisoner based upon a slim state court record. Kentucky had conducted only one execution by lethal injection, and no problems had been noted. 128 S.Ct. at 1528. The plaintiffs in that case claimed “a significant risk that the procedures will not be properly followed, in particular, that the sodium thiopental will not be properly administered to achieve its intended effect,” id. at 1530, but, in the absence of any record of errors in Kentucky,9 they could point only to theoretical concerns. Thus, the holding of Baze was based upon the written protocol and the limited evidence of implementation available in Kentucky.
Still, “[it] is clear that the Baze court did not limit its consideration of Kentucky’s procedures to its written protocol.” Alderman v. Donald, (N.D.Ga. May 2, 2008) (Slip Op., 21). The Baze Court “agree[d] with the state trial court and the State Supreme Court, however, that petitioners have not shown that the risk of an inadequate dose of the first drug is substantial.” 128 S.Ct. at 1533. Plainly, Kentucky’s implementation of the three-drug protocol was no less relevant to the likelihood of substantial harm to the plaintiffs than were the terms of the written protocol.
9Plaintiffs in Kentucky did not have the opportunity to depose execution team members, so they were limited to eye witness accounts and the written records available.
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In this case, unlike Baze, Plaintiffs are able to present this Court with a pattern of errors and maladministration of the lethal injection protocol. In Delaware, errors have not been “isolated mishap[s] alone,” 128 S.Ct. at 1531, but regular occurrences. They cannot be dismissed as the Supreme Court dismissed the hypothetical possibility of error in Baze. On the contrary, Delaware’s consistent failure to follow its own written protocol in carrying out executions by lethal injection provides a significant piece of probative evidence that the Court must weigh when determining whether Delaware’s method of execution carries a substantial risk of serious harm to the Plaintiffs. In short, this record of errors raises a material issue of fact, and summary judgment is not appropriate.
Further, Defendants have overlooked another significant distinction between Plaintiffs’ case and Baze. The constitutional significance of Kentucky’s failure to provide a meaningful “Plan B” was never at issue or considered in Baze, because the plaintiffs did not present a claim based upon problems that would arise if peripheral venous access was not obtained. As the case before this Court is a class action, the Court must consider that, among the present and future class members, there will be those for whom peripheral access will not be possible. Dr. Dershwitz, in fact, acknowledged the problem can come up, and has come up in other states. Dershwitz deposition 9/24/07, 60. Consequently, this Court, unlike the Supreme Court in Baze,
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must consider whether Delaware’s failure to provide a plan for administration of lethal chemicals when peripheral access is not possible is constitutionally acceptable. II. Defendants’ Record of Errors
Plaintiffs have developed an extensive factual record showing real risks of maladministration of Delaware’s lethal injection protocol. Defendants have thus far offered no explanation of their errors and the failures to follow the protocol, nor have they explained why this Court should be confident that their carelessness will change and they will now begin to comply fully with the protocol’s written directives.
A. Dosage Errors Defendants’ failure to ensure that condemned prisoners receive correct dosages of the lethal drugs and failure to follow this elementary requirement of the protocol creates a substantial risk of serious harm. Ensuring adequate dosages of the lethal drugs is required to meet the constitutional standard. The Supreme Court has held: It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. Baze at 1533. Defendants’ reliance on various descriptions of the “substantial risk” standard, Defendants’ Brief at 14, is a red herring. The Supreme Court has held that
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a substantial risk of maladministration of sodium thiopental meets the Eighth Amendment standard for harm.
Defendants have administered incorrect dosages in five of the thirteen executions. Defendants failed to record dosages in an additional three executions. Thus, in over sixty-one percent (61%) of the executions in Delaware, Defendants cannot show that they administered the correct dosages of the lethal drugs. Additionally, there is a serious question whether another prisoner, Brian Steckel, received a complete dose of sodium thiopental.
These multiple errors, in an alarming percentage of the executions conducted by Defendants, show a substantial, and constitutionally unacceptable, risk that condemned prisoners will not receive the correct doses of lethal drugs. At the very least, these facts are material to the constitutional inquiry, and bar granting judgment as a matter of law to the Defendants.
B. Failures to Follow Protocol Defendants’ consistent failure to follow their own lethal injection protocols undercuts any reliance this Court may place on safeguards in the written protocol. Plaintiffs can show Defendants do not follow these safeguards. There was no such evidence before the Supreme Court in Baze. In Baze, the Supreme Court relied upon the safeguards in Kentucky’s protocol
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in holding that the risk of serious harm did not meet the constitutional standard: Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner.
Baze at 1533. The safeguards relied upon are all within the written protocol. Id. at 1533-34. The safeguards include the Kentucky protocol’s experience requirements and the training required for IV team members: at least ten practice sessions per year.
Plaintiffs in Baze presented no evidence that the defendants had failed to follow those safeguards. Here, evidence that Defendants repeatedly and consistently have not followed the requirements of their own protocol undermines any reliance this Court might place on the “safeguards” in the Delaware protocol.
In addition, Plaintiffs have discovered disturbing evidence of Defendants’ misuse of their discretion in following their own protocol. For instance, Defendants chose a retired, no longer certified paramedic to participate in the execution of Brian Steckel in 2005. John Doe 3 deposition 5/25/07, 132-33. John Doe 3 frankly expressed a callous disregard for the risk of causing pain to a prisoner during lethal injection. He stated he would be “okay with” an execution causing pain and suffering to a prisoner, because “the prisoner did not appear to care about the pain and suffering of his victims.” Id. at 106. John Doe 2 testified that he executed a prisoner in a case where he knew the victims as a patients; Defendants were apprised of this fact before
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the execution, but did nothing to change personnel. John Doe 2 deposition, 5/21/07, 159-60, 164-65. These two incidents illustrate Defendants’ failure to select with care competent and appropriate execution personnel.
Defendants point out that Baze “approved” Kentucky’s newly revised protocol that had not yet been used in an execution. Defendant’s Brief at 18 n.4. This may be true, but it is either irrelevant, or helpful to Plaintiffs. In this case, Plaintiffs do not claim that the amended Delaware protocol is unconstitutional because some safeguards are untested. To the contrary, Plaintiffs can show that the tested safeguards in Delaware have failed multiple times. The Supreme Court in Baze did not have before it any evidence of error or failure to follow the Kentucky protocol. Had Plaintiffs similarly discovered that Delaware had diligently followed its protocol, then Defendants’ new and “untested” safeguards might be compelling evidence that Delaware’s present protocol could be relied upon to ensure constitutionally acceptable executions. But Delaware’s record of implementation does just the opposite; it is one of ignoring the safeguards in the protocol. In the face of those prior failures, this Court must not rely upon new written safeguards to allow lethal injection in Delaware to pass constitutional muster; they can be as easily ignored or overlooked as the old safeguards.
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III. The Incomplete Protocol Simply because defendants have replicated the Kentucky protocol on paper
does not mean that the Court should turn a blind eye to a serious problem that was not considered or addressed in Baze. The lack of an alternative to peripheral venous access is such a serious problem, particularly in light of Defendants’ record of errors.
Plaintiffs have proffered and repeat here that the lack of a stated alternative for proceeding with an execution should peripheral access not be achieved in one hour is constitutionally unacceptable. As Defendant’s own expert recognized, it is plainly and reasonably foreseeable that Defendants will encounter a member of the Plaintiff class for whom peripheral venous access is not possible or advisable. Delaware’s protocol makes no reasonable provision for that foreseeable situation. Presumably, that prisoner will have to endure an hour’s worth of attempts to gain venous access before the execution is postponed. Then, Delaware will, in effect, go “off protocol.” The present protocol makes no provision for the rescheduled execution and allows the Defendants simply to jerry-rig an alternative procedure. Nothing about that alternative is known. What, if any, aspects of the written protocol would apply? Would Defendants merely repeat the attempt to gain peripheral venous access? Would they attempt a central line or some other method of access? Who would determine what procedure should be used? Who would perform the
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unspecified procedure? Would that person be trained and qualified to perform that procedure? How much discretion would be vested in the executioner to alter or modify the method? Particularly in light of Defendants’ past errors in administration of its protocol, the Court cannot assume that the currently-unknown procedure that would be used, will pass constitutional muster. IV. Defendants’ Other Arguments
A. Plaintiffs Have Proposed an Alternative Contrary to Defendants’ assertion, Defendants’ Brief at 20, Plaintiffs have raised an alternative method of lethal injection that reduces the risk of an inhumane execution: a single drug protocol. In the initial Complaint, Plaintiffs did not propose an alternative method of execution by lethal injection, for the simple reason that the Supreme Court had never required plaintiffs to present alternatives when challenging a method of execution. In Baze, the Supreme Court changed the law, requiring plaintiffs to show a substantial risk of serious harm and to proffer an alternative that is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” 128 S.Ct. at 1532. In light of this new requirement, Plaintiffs have taken the position that an anesthetic-only or barbiturate-only protocol – a large overdose of a single anesthetic
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or barbiturate – would eliminate the risk of administering painful drugs to a prisoner who has not reached the necessary level of anesthesia, and reliably would cause death. See, e.g. D.I. 89 (Plaintiffs’ Pre-Trial Submission), 32-34. In addition, Defendants’ expert testified that a single-drug protocol, in comparison to a three-drug protocol, would reduce the overall risk of an inhumane execution, and testified that there is no medical “downside” to the use of a single-drug protocol. Dershwitz deposition 9/10/07, 51-53 (“The advantage of a one-drug protocol is once it’s given, if no other drug is being given, then there is less risk of suffering should a person awaken under the influence of pancuronium and potassium chloride.”);10 Dershwitz deposition 9/24/07, 29-31.11
10Q. So my question was things that might make an execution less risky for the condemned, not things that might make an execution easy to carry out for a state. So from the perspective of whether the execution would entail less or engender less risk for the condemned, does the one-drug protocol do that?
A. Yes. Q. Does it have less risk than multi-drug protocols for the condemned? A. Again, if we assume that multi-drug consists of pancuronium plus
potassium chloride, the answer is yes. Dershwitz deposition 9/10/07, 52-53.
11Q: Now, would you agree that removing the pancuronium and potassium chloride from the Delaware execution process would reduce
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Given Defendants’ record of maladministration, errors, and failures to follow their own protocols during any of the prior executions by lethal injection, Plaintiffs assert that the only way to ensure a human execution in Delaware is to require a one drug protocol. Because no paralytic agent or agonizing heart-stopping drug is administered, a one-drug protocol is far less likely to cause actionable pain and suffering even if the Defendants err in its administration.
B. Other Lethal Injection Cases are Different Defendants’ documented errors and failures uncovered in discovery distinguish this case from other states where defendants have been granted summary judgment on §1983 lethal injection claims after Baze. The facts before this Court are not “hypothetical possibilities of human error or failure to follow the protocol.” Raby v. Johnson, 2008 WL 4763677, *3 (S.D. Tex. Oct. 27, 2008) (granting summary
considerably the risk of an inhumane execution? A: I would agree that the overall risk of the person being either paralyzed
awake or experience potassium chloride in the awake state would be reduced. Q: And therefore would you agree that it would reduce the risk of an inhumane execution? A: Yes. Dershwitz deposition 9/24/07, 29.
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judgment where the Plaintiff’s Eighth Amendment claim rested on “hypotheticals”). Defendants’ errors and failures to follow the protocol are neither
“hypothetical” nor “possibilities.” They are documented, and they are sufficient in number as not to be an “isolated mishap alone.” Baze at 1530 (“[A]n isolated mishap alone does not give rise to an Eighth Amendment violation.”). There are documented dosage errors in thirty-eight percent (38%) of Delaware executions; in sixty-one percent (61%) of executions, Defendants cannot prove that accurate dosages were administered. Errors that occur in more than one-third of executions cannot be characterized as “isolated.”
Defendants’ failure to follow their own written protocol is similarly not an “isolated mishap.” Defendants have routinely allowed executions to go forward where members of the IV team had not completed the practice sessions required in the protocol, and had not reviewed the relevant portions of the written protocol. As described above, Defendants have never conducted an execution that adhered to the requirements of their own protocol.
In Raby, as Defendants concede, Defendants’ Brief, 18, the plaintiffs were denied “discovery that [plaintiff] hopes will uncover specific instances in which an execution encountered complications, or in which the written protocol was not followed.” Raby, *4. Of course, in this case Plaintiffs have uncovered both evidence
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of an execution encountering complications and evidence of many executions in which the written protocol was not followed.
To the extent the court in Raby stated that no matter what evidence the plaintiff were to present, it would be insufficient to defeat summary judgment, the court abused its discretion. However, that statement was not part of the holding, because no such evidence was before that court; the summary judgment opinion denied that discovery request. At any rate, Raby is not binding upon this Court.
Plaintiffs are unaware of any other lethal injection case that has proceeded to summary judgment with as extensive a record of maladministration and errors as this one. In none of the cases cited by Defendants, see Defendants’ Brief at 21, was there executioner and expert testimony or documents confirming errors in executions.12 Plaintiffs in the Arkansas case, Nooner v. Norris, 2008 WL 3211290, at *31-37 (E.D. Ark.), relied on newspapers and eyewitness accounts of past executions to show maladministration of the protocol. In three other cases, plaintiffs relied upon less
12Moreover, the lethal injection protocols in those states differ significantly from the protocol in Delaware. In Missouri, for instance, IV lines are inserted by a physician, nurse, or EMT; and there is an anesthesiologist on site. Clemons v. Crawford, 2008 WL 2783233, *1 (W.D. Mo.). Delaware, of course, requires neither the assistance of a physician or nurse, nor the presence of an anesthesiologist. In Virginia, two physicians are present; a physician trains the IV team and signs off on their qualifications; and the IV team remains in the execution chamber, three feet or less from the prisoner. Emmett v. Johnson, 532 F.3d 291, 294-96 (4th Cir. 2008). None of these safeguards is present in Delaware.
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evidence of maladministration and errors than the plaintiffs here. In Raby, the District Court granted summary judgment because plaintiffs raised only “hypothetical possibilities of human error or failure to follow the protocol.” In Clemons v. Crawford, 2008 WL 2783233 (W.D. Mo.), the District Court granted summary judgment where plaintiffs’ claim was based solely on the state’s failure to employ qualified and trained personnel, not on actual errors that occurred during executions. In the Virginia case, Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008), the Fourth Circuit characterized the plaintiff’s assertion of possible errors in executions as “speculation and building of inferences” insufficient to create a genuine issue of material fact. 532 F.3d at 304. In this case, Plaintiffs can show, through expert testimony, lay testimony, and the Defendants’ own records, the pervasive pattern of errors and maladministration that characterizes lethal injection in Delaware.
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V. Specific Facts Showing a Genuine Issue for Trial As described above, Plaintiffs can point to specific facts, pointing to a
substantial risk of serious harm, to defeat Defendants’ summary judgment motion. These facts include:
! In 38% of executions by lethal injection (five executions), an erroneous dosage of at least one drug was administered; in an additional four executions, the dosages administered were not recorded;
! In the most recent execution, the second two drugs – the ones that cause pain if a person is not under anesthesia – were administered after the IV line delivering the anesthetic failed, but no additional thiopental was administered;
! Defendants have never conducted an execution by lethal injection that conforms with the written protocol;
! Defendants have conducted executions with untrained or inadequately trained personnel, in violation of their own protocol;
! Defendants have conducted executions without showing the IV team the portions of the execution protocol related to their tasks, in violation of their own protocol;
! Defendants have no specified means of gaining intravenous access should peripheral IV access be unobtainable in a prisoner, a possibility described by their own expert as real.
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CONCLUSION For the above reasons, Defendants have not shown they meet the standard for summary judgment in their favor.

Respectfully Submitted,

/s/ Michael Wiseman ________________________ Michael Wiseman Helen A. Marino Maria K. Pulzetti Capital Habeas Corpus Unit Federal Community Defender Office for the Eastern District of Pennsylvania Suite 545 West – The Curtis Center Philadelphia, PA 19106 215-928-0520

Dated:

Philadelphia, PA January 16, 2009

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Certificate of Service I, Michael Wiseman, hereby certify that on this 16th day of January, 2009, I served the foregoing upon the following persons by e-mail and United States Mail:
Gregory E. Smith, Esq. Elizabeth McFarlan, Esq. Marc P. Niedzielski, Esq. Office of the Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801
/s/ Michael Wiseman _________________________ Michael Wiseman
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 Case 1:06-cv-00300-SLR Document 129 Filed 03/11/09 Page 1 of 20 PageID #: 1104

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ROBERT W. JACKSON, III, et aI., Plaintiffs,
v.
CARL C. DANBERG, et aI., Defendants.

) ) ) ) ) Civ. No. 06-300-SLR ) CLASS ACTION ) ) )

Michael Wiseman, Helen Marino and Maria Pulzetti, of the Federal Community Defender Office for the Eastern District of Pennsylvania, Capital Habeas Corpus Unit, Philadelphia, Pennsylvania. Attorneys for Plaintiffs.
Elizabeth R. McFarlan, Gregory E. Smith, Loren C. Meyers and Marc P. Niedzielski,
Deputy Attorneys General, Delaware Department of Justice, Wilmington, Delaware. Attorneys for Defendants.
MEMORANDUM OPINION

Dated: March II) 2009
Wilmington, Delaware

Case 1:06-cv-00300-SLR Document 129 Filed 03/11/09 Page 2 of 20 PageID #: 1105
RM.~
I. BACKGROUND
On May 8,2006, Robert W. Jackson, 1111 filed a 42 U.S.C. § 1983 action seeking
preliminary and final injunctive relief and a declaratory judgment regarding defendants'2
procedure for carrying out his execution through lethal injection.3 (0.1. 2, 6) Plaintiff
1Plaintiff is a death-sentenced prisoner in the custody of the Delaware Department of Correction ("DOC"). (0.1.2) His execution by lethal injection was scheduled to take place on May 19, 2006. (0.1.6)
2The complaint identifies defendants as: (1) Stanley W. Taylor, Jr., the former Commissioner of the DOC "responsible for the day-to-day management of the DOC and [ ] charged ... with determining the specific execution protocol."; (2) Thomas L. Carroll, the warden of the Delaware Correctional Center ("DCC") (now called the James T. Vaughn Correctional Center) "where plaintiff is incarcerated and where the execution is due to take place. He is plaintiff's custodian ... responsible for the day-to-day management of the DOC and for the supervision of plaintiff's execution."; (3) Paul Howard, the Bureau Chief for the Bureau of Prisons, "which provides overall administrative support for Delaware's five state prisons, including the DCC. '" [H]is predecessor was responsible for researching and drafting what plaintiff believes to be the [former] execution protocol."; and (4) "[O]ther unknown state actors, [who] are agents, employees or contractors engaged by defendants and their agents to participate in plaintiff's execution." Defendants are sued in their individual and official
capacities. (0.1.20 mI 20-24) During a February 8,2007 hearing, the parties discussed
working together to amend the caption to reflect personnel changes with respect to defendants and to eliminate the claims made against defendants in their personal capacity. (0.1. 31 at 22-24) To date, the court has made the only caption change: "The caption has been changed to reflect 'Carl C. Danberg' as Commissioner of the Delaware DOC, in place of 'Stanley W. Taylor, Jr.' The parties are directed to advise the court if any other of the individuals should be changed to reflect the current holders of the positions represented in the caption." (0.1. 32 at fn.1)
3At the time the complaint was filed, plaintiff did not have access to the specific execution protocol. (0.1. 21f1f 7,8) However, by studying the procedures used in past executions, autopsy reports and past protocols, plaintiff described Delaware's lethal injection protocol as "poisoning [plaintiff] with a lethal combination of three chemical substances: (1) sodium pentothal [also, known as sodium thiopental], a short-acting barbiturate; (2) pancuronium bromide, a paralytic agent; and (3) potassium chloride, an extremely painful chemical that causes cardiac arrest." (Id. at 1f 9)

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alleges that his execution4under the likely protocol to be used by defendants would subject him to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. The court has jurisdiction pursuant to
28 U.S.C. § 1331.
A telephonic status conference with the parties was held on May 9, 2006, wherein the court expressed concerns over whether it had jurisdiction to consider plaintiffs claims on the merits. (D.1. 9) Considering that the United States Supreme Court had recently granted certiorari to resolve that very issue, the case was stayed until a decision issued in Hill v. McDonough,5 05-8794, certiorari granted, 126 S. Ct. 1189 (Jan. 25, 2006). As part of that order, defendants were enjoined from carrying out plaintiff's execution until further order of the court. (D.I. 9)
On June 12, 2006, the Supreme Court ruled that plaintiff Hill's claim was
cognizable under 42 U.S.C. § 1983 and was not subject to dismissal as a second or
successive habeas corpus petition. Hill, 547 U.S. 573 (2006). With jurisdiction evident,
411 Del. C. § 4209(f) provides, in part, for execution of condemned prisoners by
lethal injection.
5The United States Supreme Court granted certiorari to resolve the following
questions: (1) whether a complaint brought under 42 U.S.C. § 1983 by a death-
sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly
recharacterized as a habeas corpus petition under 28 U.S.C. § 2254; and (2) whether,
under [the Supreme Court's] decision in Nelson v. Campbell, 541 U.S. 637 (2004), a challenge to a particular protocol the State plans to use during the execution process
constitutes a cognizable claim under 42 U.S.C. § 1983.
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the court conducted a second teleconference,6 lifted the stay and ordered defendants to respond to the complaint. The parties agreed to an informal exchange of discovery materials as part of an effort to resolve the claims without litigation.7 (D.1. 12,14 - 19)
On October 6,2006, a scheduling order was imposed pursuant to Fed. R. Civ. P. 16, setting discovery to conclude on June 30, 2007 and a bench trial to commence on September 10, 2007. (D.1. 20) The case was also referred to United States Magistrate Judge Mary Pat Thynge for the purpose of alternative dispute resolution. (D.I. 20, 21)
On December 1, 2006, plaintiff filed an opposed motion for class certification to include all current and future inmates sentenced to death by a state court in the State of Delaware. (D.1. 26,27,28,29) Following briefing and oral argument, the court granted
the motion to certify the class pursuant to Fed. R. Civ. P. 23(b)(1) & (2).8 (D.I. 30,31
33) A mediation teleconference was held on May 15, 2007. On May 24,2007,
defendants moved for a protective order. (D.1. 38) Plaintiffs opposed the protective order and moved to amend the discovery deadline. (D.1. 39) The court held a third
6Although the transcript of this teleconference was sealed, most of the transcripts of the other teleconferences are not sealed and are available to the public. (D.I. 13)
7As part of that order, a bench trial was scheduled to commence on September 10,2007. (D.I.22)
8Since the court is unaware of any class members opting out, the members of the class are: (1) Robert W. Jackson, III; (2) Luis G. Cabrera; (3) James E. Cooke, Jr.; (4) Robert A. Gattis; (5) Shannon M. Johnson; (6) Michael R. Manley; (7) Adam W. Norcross; (8) Lamont l. Norman; (9) Juan J. Ortiz; (10) Gary W. Ploof; (11) Luis E. Reyes; (12) Steven W. Shelton; (13) Chauncy S. Starling; (14) David D. Stevenson; (15) Ralph E. Swan; (16) Ambrose l. Sykes; (17) Milton E. Taylor; (18) Jermaine M. Wright and (19) Craig A. Zebroski. (D.I. 122 at fn.2)
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telephonic conference on June 8, 2007, wherein the parties discussed, inter alia,
problems involving discovery. (D.I. 46) As a result, the scheduling order was amended,
extending discovery through October 1, 2007 and re-scheduling the bench trial to
commence on October 9,2007. (D.1. 43)
For about the next two months, the parties exchanged discovery, noticed
depositions of fact and expert witnesses and toured the lethal injection facility (Building
26, Bate stamp no. 01871) at the DCC.9 (D. I. 47-58, 61-73; D.I. 102) On August 15,
2007, plaintiffs moved for leave to amend the complaint to add claims under Delaware's
Administrative Procedures Act; the motion was withdrawn on August 26, 2007. (D.I. 55,
56,60)
On September 26, 2007, the court conducted a fourth telephonic status
conference to discuss the effect of the decision of the United States Supreme Court in
granting the petition for certiorari in Baze v. Rees, _ S.Ct. _, 2007 WL 2075334
(Sept. 25, 2007).10 (D. I. 80) While plaintiffs wanted to proceed with discovery in order
91n September 2007, the court accompanied counsel and an expert retained by plaintiffs on one such tour of Building 26 at DCC. (D.1. 71)
10The petition for writ of certiorari presented broad questions for the Supreme Court: (1) does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create and unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain?; (2) do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used?; (3) does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering?; and (4) when it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is
4

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to keep the case moving while the Supreme Court decided the petition, defendants argued the entire case should be stayed and discovery halted until a decision issued. (0.1. 84) Because defendants resisted the court's suggestion to continue with discovery, the parties were warned that resolution of the case might be further delayed by resuming discovery after the Supreme Court's decision; the trial was also postponed. (0.1. 84 at 6-8)
On April 16, 2008, the Supreme Court held that the risk of improper administration of the initial drug did not render Kentucky's three-drug protocol cruel and unusual and found that Kentucky's failure to adopt proposed alternatives to the threedrug protocol did not constitute cruel and unusual punishment. Baze v. Rees, 128 S.Ct. 1520 (2008). On April 17, 2008, the court scheduled an in-person status conference and ordered the parties to be prepared to "address the specific procedures that have been employed by the DOC for death by lethal injection in light of the Supreme Court's opinion in Baze v. Rees .... " (D.1. 83) During this conference, the court noted that "the only issue before us is whether the State of Delaware has a protocol that is either the same as Kentucky's or substantially similar." (D.1. 88 at 2-3)
At the June 23,2008 pretrial conference, it was evident that Delaware had not embraced Kentucky's protocol. (0.1. 93 at 3-4) The court concluded that an evidentiary hearing would have to be conducted in order to determine, through expert testimony, whether the differences between the two protocols were significant. The evidentiary hearing was scheduled for September 10, 2008. (0.1. 95)
granted after the lethal injection chemicals are injected? Baze v. Rees, 2007 WL 2781088 (2007).
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Defendants filed a revised lethal injection protocol on August 29, 2008. (D.1. 108). Following a September 5,2008 telephone conference, the case was referred to mediation for the purpose of negotiating the final version of Delaware's lethal injection protocol. (D.I. 109, 128) The evidentiary hearing scheduled for September 10 was cancelled. Magistrate Judge Thynge conducted a mediation conference on October 26, without success. (D.1. 111, 114)
On October 30, 2008, the court ordered plaintiffs to specifically identify the portions of Delaware's protocol that are substantially different from that approved by the Supreme Court in 8aze. 11 (D.1. 116) Defendants filed a motion for summary judgment on December 19, 2008, which plaintiffs opposed. (D.1. 121-126) Oral argument was conducted on January 29,2009. (D.1. 127) II. STANDARD OF REVIEW
A court shall grant summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elee. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10 (1986). When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Facts that could
11Plaintiffs now concede that, as written, there are no substantive differences between the Kentucky and Delaware protocols. (D. I. 121)
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alter the outcome are material, and disputes are genuine if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct. Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir.1995) (internal citations omitted).
If the moving party has demonstrated an absence of material fact, the nonmoving party then must come forward with "specific facts showing that there is a genuine issue for tria!." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e». However, a party opposing summary judgment must present more than just bare assertions, conclusory allegations or suspicions' to show the existence of a genuine issue. Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986». To survive a motion for summary judgment, plaintiff cannot rely merely on the unsupported allegations of the complaint. and must present more than the mere existence of a scintilla of evidence in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242.252 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317. 322 (1986). III. THE OLD LETHAL INJECTION PROTOCOL
In 1992. Delaware carried out its first execution by lethal injection using a
7

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three-drug protocol ("the old protocol,,):12 (1) sodium pentothal, also known as sodium
thiopental; (2) pancuronium bromide, also known as pavulon; and (3) potassium
chloride. (0.1.122) This three-drug combination has been used in the lethal injection
executions of 13 prisoners,13 The team responsible for inserting the intravenous lines
("IV") into each inmate sentenced to the death penalty ("I SOP") and administering or
"pushing" the drugs through the IV has consisted of four members, John Doe 1, Jane
Doe 1, John Doe 2 and John Doe 3 ("the IV team"),14 (Depositions 7/6/07, 6/5/07,
5/21/07, 5/25/07). The IV team is distinguishable from the "execution team," as the
latter consists of DOC employees responsible for the security, safety and tie-down of
the ISDP. (Carroll Deposition, 3/27/07 at 16) The same medical doctor has been
present at each execution and responsible for "determin[ing] whether the patient is still
12There have been several revisions to the old protocol. (See e.g., Bate stamp no. 00001-00129 (3/11/92), Bate stamp no. 00130-00204 (2/26/93), Bate stamp no, 00205-00278 (9/29/95), Bate stamp no. 00279-00344 (3/1/99), Bate stamp no. 0034500407 (10/11/00), Bate stamp no. 00408-00467 (8/1/05); Bate stamp no. 2444-2528 (8/31/07)
13Steven B. Pennell (3/14/92), James Allen Red Dog (3/3193), Kenneth W. DeShields (8/31/93), Andre S. Deputy (6/23/94), Nelson W. Shelton (3/17/95), William H. Flamer (1/30/96), James B. Clark, Jr. (4/19/96), David J. Lawrie (4/23/99), Willie G. Sullivan (9/24/99), Dwayne L. Weeks (11/17/00), David F. Dawson (4/26/01), Abdullah Tanzil Hameen, formerly Cornelius Ferguson (5/25/01), and Brian D. Steckel (11/4/05). httpl:lldoc.delaware.gov/information/deathrow_executions February 11, 2009).
14John Doe 1 and Jane Doe 1 were the IV team for the Pennell and Red Dog executions. Jane Doe 1 was also part of the IV team for: DeShields, Deputy, Shelton, Flamer and Clark. John Doe 2 was part of the IV team for the following executions: DeShields, Deputy, Shelton, Flamer, Clark, Lawrie, Sullivan, Weeks, Dawson, Hameen and Steckel. John Doe 3 was part of the IV team for: Lawrie, Sullivan, Weeks, Dawson, Hameen and Steckel.
8

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living or if he's dead." (Physician Deposition, 5/23/07 at 79-80; Taylor Deposition, 5/24/07 at 48)
According to the old protocol, for each execution, the IV team would arrive at the prison and be escorted to the execution building for a briefing with a security officer andlor the warden or deputy warden. The IV team would check the medications and dosages needed against the supplies on hand. The IV team would also review a previously prepared evaluation of the potential IV sites on the ISDP. Next, the IV team would begin preparing the medications and saline solution and drawing them into syringes. Once the ISDP was secured and strapped onto a gurney, the IV team would start intravenous lines in the ISDP's left and right arms. After the ISDP made a final statement, the warden would signal for the IV team to commence administration of the medications into the IV lines. First, sodium thiopental would be administered, followed by a normal saline flush; next, pavulon, followed by a normal saline flush; and third, potassium chloride would be administered, followed by a normal saline flush. (John Doe 2 Deposition, 5/21/07 at 14-16,82-83; John Doe 3 Deposition, 5/25/07 at 18-10)
The record reflects noncompliance with the old protocol (whichever version was in effect at the time) in each of the thirteen executions. Some ISDP were administered incorrect dosages of the three drug combinations. Specifically, although the old protocol called for the administration of 100 mEq. of potassium chloride, several ISDP were given larger dosages: Clark was administered 200 mEq of potassium chloride (Bate stamp no. 1711); Red Dog was given 240 mEq of potassium chloride (Bate stamp no. 1152); Lawrie was given 200 mEq of potassium chloride (Bate stamp nos. 1729, 1733); Weeks was given 200 mEq of potassium chloride (Bate stamp nos. 1775, 1778);
9

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and Steckel was given 200 mEq of potassium chloride (Bate stamp nos. 1849, 1870). (See Jane Doe 1, Deposition 6/5/07 at 78)
Written records of the drugs or the amounts administered were not kept; instead. the IV team made "mental notes." (John Doe 2 Deposition, 5/21/07 at 121-123, 66; John Doe 3 Deposition, 5/25/07 at 43) A log was not kept in the IV room. (Danberg Deposition, 5/27/07 at 48-49) With the exception of training sessions conducted before the Pennell execution and the start of John Doe 2 on the IV team, regular training sessions were not conducted. (John Doe 1 Deposition 7/6/07 at 52-53; John Doe 3 Deposition, 5/25/07 at 77-78; Jane Doe 1 Deposition, 6/5/07, at 52-56 (session geared toward security not IV team responsibilities); Watson Deposition, 8/10/07 at 44; John Doe 2 Deposition, 5/21/07 at 82-83 (training did not include starting an IV line)
Some members of the IV team also failed to follow the old protocol with respect to: (1) checking the equipment and materials pre-execution; (2) reviewing step-by-step instructions in the protocol; and (3) conducting executions without seeing any paperwork at all. (John Doe 1 Deposition, 7/6/07 at 56; John Doe 2 Deposition, 5/21/07 at 92-93; Carro" Deposition, 3/27/07 at 98)
The most notable execution of record was that of Brian Steckel, which occurred on November 3, 2005. At 12:08 a.m., immediately after Steckel finished making his final statement, Warden Carroll signaled the IV team to commence the execution, i.e., inject "syringe 1" containing the first drug, sodium thiopental, into the IV line. 15 (Bate stamp no. 00771; Carroll Deposition, 3/27/07 at 82-84) The primary line ran well at
15Two catheters were placed in Steckel's arms, the "primary line" in his left arm and the "secondary line" in his right arm. (Carroll Deposition, 3/27/07 at 30)
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first but, for an unknown reason, became infiltrated. 16 (John Doe 2 Deposition, 5/21/07 at 117-118,139-14-,142; John Doe 3 Deposition, 5/25/07 at 109)
While the IV team tried to fix the problem. Steckel started talking, an indication that he was not yet anesthetized. (Carroll Deposition, 3/27107 at 81,84) Because the
IV team's efforts at troubleshooting the syringe 1 problem were unsuccessful, they
decided to abort the first IV line and, instead, inject "syringe 2" containing sodium thiopental into the second IV line located in Steckel's right arm. (John Doe 2 Deposition, 5/21/07 at 117-118,139) While syringe 2 was running through the IV, the IV team prepared a replacement syringe ("syringe 3") of sodium thiopental and injected syringe 3 into the IV after syringe 2 was administered. (John Doe Deposition, 5/21/07 at 120) Although the record is inconclusive on the total amount of sodium thiopental that Steckel ultimately received, the record reflects that at least two syringes (the required dose) were administered. (John Doe 2 Deposition, 5/21/07 at 124; Bates no. 1849,1870) Following the administration of syringes 2 and 3, the IV team administered pancuronium bromide and potassium chloride, as well as the corresponding saline 'flushes. (John Doe 2 Deposition, 5/21/07 at 141) Steckel's time of death was announced at 12:22 a.m., some 14 minutes having elapsed since the IV team began its work. (Bate stamp no. 1848; Danberg Deposition 5/27107 at 57, "Steckel's execution took a period of time that some of the witnesses considered to be an excessive length
161nfiltration can occur when the catheter nicks but does not enter the vein, causing the fluid to enter the skin or tissue. (John Doe 2 Deposition, 5/21/07 at 43) If an IV line is infiltrated, there is back pressure or resistance felt on the syringe and the plunger of the syringe. (John Doe 2 Deposition, 5/21/07 at 45 46)
11

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of time"; Burris Deposition, 3/28/07 at 69) Other executions were completed in a far shorter time period. 17
IV. THE NEW LETHAL INJECTION PROTOCOL
On August 29,2008, the DOC issued a revised execution policy, procedure and
protocol ("the new protocol") to be used to perform the court-ordered executions by
lethal injection of ISDP. (D.I. 113) The new protocol includes the same three-drug
combination with one significant difference. the amount of the first drug (sodium thiopental) was increased.18 Specifically, the execution19 begins with the injection of 3
17Dewayne Weeks: warden signaled for procedure to begin at 12:12 a.m. and warden announced time of death as 12:16 a.m., Bate stamp no. 00738; David Lawrie: warden signaled for procedure to begin at 12:14 a.m. and warden announced time of death as 12:17 a.m., Bate no. 00712; Andre Deputy: Warden signaled procedure to begin at 12:31 a.m. and physician pronounced death at 12:35 a.m., Bate stamp nos. 00532-00534.
18Defendant's expert, Mark Dershwitz, M.D., Ph.D., opined as to the significance of the increase:
[f]he dose of thiopental sodium used by Delaware would render most people unconscious within 60 seconds from the time of the start of the administration. By the time the entire 3,000 mg dose of thiopental sodium solution is injected, it is my further opinion, to a reasonable degree of medical certainty, that over
99.99999999 % of the population would be unconscious. Furthermore, this
dose of thiopental sodium will cause virtually all persons to stop breathing within a minute or two of drug administration.... Thus, even in the absence of the administration of pancuronium bromide and potassium chloride, the administration of 3,000 mg of thiopental sodium by itself would be lethal in almost everyone.
(Bates no. 2509; see Dershwitz Deposition, 9/24/07 at 9-10, 13-14)
19The new protocol explicitly sets forth: how the execution team is to be selected; required training and practice for the execution team; the procurement, storage, accountability and transfer of chemicals; the lethal injection chemical set-up and preparation; the manner for insertion of a catheter and connected IV lines; and chemical administration and IV monitoring. (0.1. 123 at App-1) As noted, the Delaware
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grams of sodium thiopental at 2.5 % concentration. (Id. at 4, 1{4) The syringes containing the sodium thiopental are labeled20 for "Sodium Thiopental #1 a" and
"Sodium Thiopental #1 b" for identification. (Id. at 7) The IV line is then flushed with 50
mL of saline solution from the IV bag into a syringe labeled "Saline #2." After the
delivery of the Saline #2, the IV team must wait two minutes to allow for a
"consciousness check." (Id.) The consciousness check shall be performed as follows:
a. The curtain between the execution chamber and the witness room shall be closed. b. Once the curtain is closed, the Warden will call the ISOP's name in a loud voice and observe the ISOP for a reaction. c. A member of the IV team will assess the consciousness of the ISOP by tactile stimulation of the ISOP. This tactile stimulation shall include touching the ISOP, shaking the ISOP's shoulder, and brushing the eyelashes of the ISOP. Ouring the consciousness check, the Warden and IV team shall closely monitor the ISOP to assess consciousness. The curtain between the execution chamber and the witness room shall be reopened. If it appears that the ISOP is unconscious, the Warden shall signal to proceed with the remaining syringes, starting with Pancuronium Bromide in sequence.
(Id. at 7) After the IV team administers 50 mg of pancuronium bromide, labeled
"Pancuronium Bromide #3," the IV line is flushed with "Saline #4". (ld. at 4) Syringes
labeled "Potassium Chloride #5a, #5b and #5c," containing a total dose of 240mEq. of
Potassium Chloride, are next administered. "Saline #6," containing 50 mL of saline
and Kentucky protocols contain no substantive differences; in fact, Oelaware's new protocol includes additional safeguards not found in the Kentucky protocol, e.g., a two minute consciousness test and the installation of a pan-tilt-zoom camera to allow IV team members to monitor the ISOP during the execution.
2°The primary set of syringes are to be color-coded red. (Id.)
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solution, is next drawn from the IV bag into a syringe. (/d.) This process is repeated to create a second, back-up set of syringes color-coded blue. V. ANALYSIS
The court begins its analysis by noting three fundamental facts. First, capital punishment is constitutional, and the Supreme Court "has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment." Baze v. Rees, 128 S. Ct. at 1530. Second, the Supreme Court has recognized that "[s]ome risk of pain is inherent in any method of execution - no matter how humane - if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions." Id. at 1529. Finally, the Supreme Court in Baze concluded that the risk of pain associated with administering Kentucky's three-drug protocol was constitutionally acceptable. Consequently, in order to demonstrate that Delaware's lethal injection protocol is "cruelly inhumane," plaintiffs shoulder a "heavy burden." Id. at 1533.
The question before the Supreme Court in Baze was whether Kentucky's lethal injection protocol was unconstitutional under the Eighth Amendment's ban on "cruel and unusual punishments," because of the risk that the protocol's terms might not be properly followed, resulting in significant pain. The petitioners in Baze proposed an alternative protocol (the "one-drug" protocol), despite their concession that said protocol has not been adopted by any State and has never been tried. The Supreme Court. upon review of the record, concluded that petitioners had failed to carry their burden of
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showing "that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute
cruel and unusual punishment." Id. at 1526.
Plaintiffs in the case at bar pursue the same relief (administration of a one-drug protocol) under the same theory (the risk of significant pain from maladministration of the three-drug protocol) as had the petitioners in Baze. It is undisputed in this case that Delaware has revised its lethal injection protocol to conform21 to that sanctioned by the Supreme Court in Baze. And, for purposes of this proceeding, the court acknowledges that Delaware's IV team22 has a history of committing errors23 in carrying out the old protocol. Based on this record, there are two issues that remain for the court's review. First, have plaintiffs demonstrated that future IV teams will likely fail to follow the new protocol, consistent with the historic failures of administration? If so, the second issue for review is whether plaintiffs have demonstrated that the kind of administrative errors of record, projected into the future, present such an "objectively intolerable risk of harm" as to constitute cruel and unusual punishment?
With respect to the first issue, plaintiffs have demonstrated that executions by lethal injection had been carried out in Delaware with a casualness in procedure that cannot be tolerated in the future. As recognized by the Supreme Court, however, as
21As noted by defendants, the new protocol includes more safeguards than that provided by the protocol reviewed in Baze.
22As noted, the IV team was responsible for inserting the IV lines into each ISDP and for administering the drugs through the IV. The execution team was responsible for security, safety and tie-down of the ISDP. See infra pp. 8-9.
23See infra pp. 9-12. 15

Case 1:06-cv-00300-SLR Document 129 Filed 03/11/09 Page 17 of 20 PageID #: 1120
societal norms have changed, so have the expectations relating to how executions should be carried out within the scope of the Eighth Amendment. In this regard, the Supreme Court in Baze raised the procedural bar by requiring various safeguards to accompany what is presently considered the most humane method of execution, that is, execution by lethal injection. It is evident from the Supreme Court's decision that Kentucky, like Delaware, revised its protocol as a result of litigation. Id. at 1528. Therefore, the fact that expectations have been raised (Le., societal norms have changed yet again) should not be counted against defendants.
Plaintiffs argue in response that an improved protocol is of no moment if it is not carried out correctly. They assert that Delaware's past performance in administering its lethal injection protocol has been so deficient that, on this basis alone, the court should assume that Delaware's future performance likewise will be deficient. To put the point differently, plaintiffs ask the court to assume that future conduct by different personnel under a new lethal injection protocol in a different legal environment will reflect past conduct by former personnel under a now rejected protocol. To embrace plaintiffs' logic, the court would have to find either that the new protocol is simply too complicated for a State to carry out - an argument rejected in Baze - or that Delaware's personnel will intentionally ignore the requirements of the new protocol in order to intentionally cause undue pain and suffering. The record does not support either of those propositions.24
24Although not dispositive, several States whose lethal injection protocol have been reviewed and approved under Baze had a similar history of errors in administration. Clemons v. Crawford, 2008 WL 2783233 (W.O. Mo. 2008); Nooner v. Norris, 2008 WL 3211290 (E.D. Ark. 2008); Raby v. Johnson, 2008 WL 4763677 (S.D.
16

Case 1:06-cv-00300-SLR Document 129 Filed 03/11/09 Page 18 of 20 PageID #: 1121
Even if the court were to assume that the record supported plaintiffs' arguments
in this regard, the question remains whether the risks of harm posed by such
hypothetical errors are of constitutional dimension. The Supreme Court acknowledged
in Baze that
subjecting individuals to a risk of future harm - not simply actually inflicting pain - can qualify as cruel and unusual punishment. To establish that such exposure violates the Eight Amendment, however, the conditions presenting the risk must be "sure or very likely to cause serious illness and needless suffering," and give rise to sufficiently imminent dangers." ... We have explained that to prevail on such a claim there must be a "substantial risk of serious harm," an "objectively intolerable risk of harm" that prevents prison officials from pleading that they were "subjectively blameless for purposes of the Eighth Amendment."
Id. at 1530-31 (emphasis in original) (citations omitted).
Of course, in the context at bar, the "harm" referred to above is not death, since
that is the goal of lethal injection. The "harm" is the risk of "needless" suffering or pain.
In this case, as in Baze, the focus of plaintiffs' concerns is the improper administration of the first drug, sodium thiopental, of the three-drug protocol.25 According to the
Supreme Court in Baze, 'ti]t is uncontested that, failing a proper dose of sodium
thiopental that would render the prisoner unconscious, there is a substantial,
constitutionally unacceptable risk of suffocation from the administration of pancuronium
bromide and pain from the injection of potassium chloride." Id. at 1533. The risks
Tex. 2008). 2srhe court notes that plaintiffs' other concern, the absence of any guidance in
the new protocol for the IV team if they are unsuccessful in finding peripheral access is no longer at issue. Counsel for defendants represented in open court that the absence of any such procedures simply means that the execution cannot proceed. (0.1. 127 at 40-41)
17

Case 1:06-cv-00300-SLR Document 129 Filed 03/11/09 Page 19 of 20 PageID #: 1122
identified by plaintiffs, then, is that too little sodium thiopental is administered and/or that not enough time elapses following the administration of this first drug to cause unconsciousness before the administration of the final two drugs.
Aside from administrative errors, the only evidence arguably relevant to plaintiffs' claims is that concerning the Steckel execution.26 Although the court concedes that the IV team did not document the steps of the execution, nevertheless, the record adequately demonstrates that the proper dose of sodium thiopental (at least 2 syringes' worth) was administered. The court is not prepared to find, on this record, that Steckel was likely exposed to needless suffering because the dose of sodium thiopental delivered to him took longer to take effect in his case than in other cases. Moreover, the court notes that the new protocol addresses the very concerns raised in this regard, by having a standard "consciousness check" before the delivery of the final two drugs. The court finds that plaintiffs have not shown that there is a substantial risk of an inadequate dose of sodium thiopental under the new protocol. Consequently, plaintiffs have not demonstrated that any maladministration of the new protocol is "very likely" to
pose an "objectively intolerable risk of harm."27 Id. at 1531.
VI. CONCLUSION Under the now settled standard of review and for the reasons stated, the court
concludes that plaintiffs have not carried their heavy burden to prove that the risks
26The court does not understand the risk of over-dosing to be of constitutional concern.
27The court notes in this regard that the phrase "unnecessary risk of pain" is one
coined by petitioners in Baze, not by the Supreme Court. See id. at 1529. This court
purposefully did not embrace the phrase in evaluating the issues at bar. 18

Case 1:06-cv-00300-SLR Document 129 Filed 03/11/09 Page 20 of 20 PageID #: 1123 associated with maladministering Delaware's new lethal injection protocol are not only "sure" or "very likely," but are "objectively intolerable risks of harm" as well. Therefore, the court finds that there are no genuine issues of fact and that defendants are entitled to judgment as a matter of law. Defendants' motion for summary judgment (0.1. 121) is granted. An order shall follow.
19

 
 Case 1:06-cv-00300-SLR Document 166 Filed 07/27/11 Page 1 of 9 PageID #: 2210

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ROBERT W. JACKSON, III, et aI., Plaintiffs,
v.
CARL C. DANBERG, et aI., Defendants.

) ) ) ) ) Civ. No. 06-300-SLR ) CLASS ACTION ) ) )

MEMORANDUM ORDER At Wilmington this 27th day of July, 2011, having reviewed the pending motions to stay and to reopen and the papers submitted in connection therewith, and having heard oral argument on same; IT IS ORDERED that plaintiffs' motion to stay the execution of named plaintiff Robert W. Jackson, III (D.1. 156) is denied, for the reasons that follow: 1. Background. In 2009, the court granted defendants' motion for summary judgment, finding that Delaware had revised its lethal injection protocol ("the protocol") to conform with that sanctioned by the United States Supreme Court in Baze v. Rees, 553 U.S. 35 (2008). Specifically, plaintiffs had not demonstrated that there was a substantial risk of an inadequate dose of sodium thiopental being administered under the protocol, sodium thiopental (an anesthetic) being the first of three drugs administered under the protocol. Jackson v. Oanberg, 601 F. Supp.2d 589, 598-99 (D. Del. 2009). Plaintiffs had argued in this regard that, without an adequate dose of an

Case 1:06-cv-00300-SLR Document 166 Filed 07/27/11 Page 2 of 9 PageID #: 2211
anesthetic being administered as the first drug, the administration of the final two drugs was sure or very likely to cause needless suffering.
2. Since the entry of judgment against plaintiffs, sodium thiopental is no longer produced in the United States and there is no legal way for States to obtain it from overseas. (D.1. 142 at 2) On May 5, 2011, the State of Delaware changed the protocol to add a new drug, pentobarbital, as an alternative to sodium thiopental for use as the first drug in the protocol. The purpose of the first drug is to induce a state of unconsciousness in the condemned prisoner. Baze, 553 U.S. at 44.
3. Plaintiffs have moved to reopen the judgment entered in 2009 pursuant to Fed.R.Civ.P. 60(b)(6) and Rule 60(d). Plaintiffs contend that the substitution of pentobarbital for sodium thiopental is a factual change which undermines the foundations of the prior ruling, thus constituting exceptional circumstances (under Rule 60(b )(6)) and/or circumstances that call for independent action in order to prevent a grave miscarriage of justice (under Rule (60(d».
4. Oral argument was conducted this same date. (D.1. 164) Plaintiff Jackson's execution is scheduled to occur on Friday, July 29,2011.
5. Motion to stay_ The Supreme Court has held that a death row inmate may challenge the constitutionality of execution methods pursuant to a 42 U.S.C. § 1983 action; however, a stay "is not available as a matter of right," even where execution is
imminent. Hill v. McDonough, 547 U.S. 573, 584 (2006). A "stay of execution is an
equitable remedy" and "equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from federal courts." Id.
2

Case 1:06-cv-00300-SLR Document 166 Filed 07/27/11 Page 3 of 9 PageID #: 2212
Moreover, the "victims of crime have an important interest in the timely enforcement of a sentence." Id.
6. A "death row inmate is afforded no preferential treatment by his filing a motion to stay, and all requirements for a stay must be satisfied." Powell v. Thomas, _ F. Supp.2d _,2011 WL 1843616 at *2 (M.D. Ala. May 16,2011). Accordingly, to warrant the imposition of a stay, it is the death row inmate's burden to demonstrate: (a) a substantial likelihood of success on the merits; (b) irreparable harm; (c) the balance of harms weighs in his favor; and (d) the entry of relief would serve the public interest.
De Young v. Owens, _ F.3d _, 2011 WL 2899704 at *3 (1 fh Cir. 2011). According to
the Supreme Court in Baze, a stay of execution may not be granted under the circumstances at bar "unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives." Baze, 553 U.S. at 61.
7. Likelihood of success. Plaintiffs argue in this regard that pentobarbital is not used clinically as an anesthetic and, therefore, there is no clinical experience to inform its use in the execution setting. According to plaintiffs, the effects of pentobarbital are "unknown and unpredictable," specifically as to the "unknown manner and timing by which pentobarbital will render a subject insensible to serious pain." (0.1. 163 at 3) Because pentobarbital and sodium thiopental (which is used clinically as an anesthetic) have different mechanism of actions, a mere substitution of drugs in the protocol is constitutionally inadequate.
3 


Case 1:06-cv-00300-SLR Document 166 Filed 07/27/11 Page 4 of 9 PageID #: 2213
8. As evidence to support the above arguments, plaintiffs have proffered the expert opinion of Dr. David B. Waisel. Dr. Waisel opines that "[t]he primary problem [with lethal injection protocols] is inadequate anesthesia most commonly from inadequate physical and technical ability of the execution team members to assess anesthetic depth prior to injecting [the final two drugs,] pancuronium bromide and potassium chloride." (0.1. 154, ex. 2 at 5) According to Dr. Waisel, the above problem is compounded with the use of pentobarbital because there are "significant unknowns from a lack of clinical history related to using pentobarbital to induce anesthesia." (ld. at 4)1 Dr. Waisel buttresses the above opinions with the observations of several eyewitnesses to two executions, that of Eddie Duval Powell in Alabama and of Roy Willard Blankenship in Georgia. According to these eyewitness accounts, both Powell and Blankenship displayed violent body motions as the lethal injection commenced; Blankenship's eyes were open during the entirety of the lethal injection process. According to Dr. Waisel, "likely reasons for these events include that the pentobarbital did not work as the state claimed it would work or that the pentobarbital was not successfully delivered ...." (/d. at 6) Dr. Waisel concludes that, "to date, pentobarbital has been used in 16 reported executions utilizing the three-drug sequence. The fact that executions of 16 inmates have generated 2 reports of botched executions underscores the fact that we do not have sufficient data for the safety, efficacy or
1Dr. Thomas K. Henthorn, a practicing anesthesiologist, averred in this regard that because, in a clinical setting, pentobarbital is administered after a person has already been rendered unconscious, "pentobarbital has not been sufficiently tested to render an entirely conscious human adult unconscious." (0.1. 161, ex. 7)
4

Case 1:06-cv-00300-SLR Document 166 Filed 07/27/11 Page 5 of 9 PageID #: 2214
reliability of pentobarbital as used to induce anesthesia for lethal injection." (/d.; see also 0.1. 161, ex. 6)
9. In opposition, defendants proffer the following for the court's consideration. To date, the Supreme Court "has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment." Baze, 553 U.S. at 53. More specifically to the dispute at bar, no court has held that the administration of pentobarbital violates the Eighth Amendment. Indeed, in denying a stay of execution in DeYoung v. Owens, 2011 WL 2899704, the Eleventh Circuit addressed the very evidence proffered by plaintiffs at bar. Significantly, the Eleventh Circuit found that, even assuming Dr. Waisel correctly interpreted the varying eyewitness accounts of the Blankenship execution to show that Blankenship's movement occurred during the administration of the pentobarbital, Dr. Waisel still could not provide "a medical explanation for why pentobarbital might have caused Blankenship pain" or for how long. Id. at *5. According to the Court, "[i]t is clear that Blankenship's execution did not proceed to the second drug until after he was fully unconscious," consistent with Georgia's protocol. Id. at *6. The Eleventh Circuit concluded in this regard that DeYoung "ha[d] wholly failed to show that pentobarbital, once fully administered and allowed to act, is ineffective as an anesthetic;" therefore, "Georgia's 'use of pentobarbital does not create a substantial risk of serious harm to inmates.'" Id. at *5-6.
10. The Tenth Circuit in Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010), concluded that the district court had not abused its discretion in denying an inmate's
5 


Case 1:06-cv-00300-SLR Document 166 Filed 07/27/11 Page 6 of 9 PageID #: 2215
motion to stay based upon the testimony of Dr. Mark Dershwitz, whose deposition has
been made part of the record at bar. (0.1. 154, ex. 4) According to the Tenth Circuit,
[a]lthough [plaintiff's] expert witness, Dr. Waisel, expressed concern that there was insufficient data to allow the ODC [Oklahoma Department of Corrections] to determine the proper amount of pentobarbital to use as part of its protocol, it was by no means clear error for the district court to find that Dr. Deshwitz, who has substantially more clinical experience with the use of pentobarbital than Dr. Waisel, persuasively rejected those concerns as unfounded. The district court likewise committed no clear error in finding that the amount of pentobarbital selected for use by the ODC as part of its protocol was sufficient to induce unconsciousness in an inmate and, indeed, would likely be lethal in most, if not all, instances.
Id. at 1340.
11. Delaware's protocol calls for the administration of five grams of
pentobarbital; a consciousness check after two minutes have elapsed; and the
administration of a second dose of pentobarbital if the inmate was still conscious after
two minutes. (0.1. 164 at 41) The final two drugs are not administered if the inmate is
not unconscious. Dr. Dershwitz has opined that five grams of pentobarbital is a lethal
dose.
12. The court concludes that plaintiffs have not carried their burden to prove that
they are likely to succeed on the merits of their Eighth Amendment claim. At best, Dr. Waisel has raised concerns about the mechanism of action of pentobarbital.2 The
undisputed facts of record demonstrate, however, that pentobarbital has passed
constitutional muster in all reviewing courts to date and will be administered in lethal
21t is interesting to note that Dr. Waisel is comfortable opining that the cause of the body movements witnessed in the Powell and Blankenship executions was pentobarbital and that those body movements prove that the inmates were suffering pain, despite the fact that the effects of pentobarbital are "unknown and unpredictable," according to Dr. Waisel.
6

Case 1:06-cv-00300-SLR Document 166 Filed 07/27/11 Page 7 of 9 PageID #: 2216
doses in Delaware. According to Delaware's protocol, the final two drugs of the threedrug protocol will not be administered until the inmate is found to be unconscious. There has been no affirmative evidence presented3 that the administration of pentobarbital as the first drug in Delaware's three-drug protocol creates a demonstrated
risk of severe pain, as required by the Supreme Court. Baze, 553 U.S. at 61. 13. Irreparable harm. Irreparable harm, in the context of the death penalty,
cannot mean the fact of death, as such an interpretation would make analysis of this factor meaningless. Rather, the irreparable harm that must be addressed is the manner of death, consistent with the Eighth Amendment's proscription against cruel and unusual punishment. In this regard, because plaintiffs have not carried their burden to prove that the administration of pentobarbital is sure or very likely to cause needless suffering, they cannot demonstrate irreparable harm.
14. Balance of harms. Defendants must carry out the mandates of the State Courts to execute plaintiff Jackson and have engaged their administrative process to do so, at some expense. Plaintiffs, of course, have a strong interest in ensuring that executions in Delaware are carried out consistent with the mandate of the Constitution, as interpreted by the Supreme Court, to avoid the risk of their suffering needlessly. In this regard, however, the Supreme Court has recognized that "[s]ome risk of pain is inherent in any method of execution - no matter how humane - if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does
3The court finds that discovery of the kind routinely undertaken in civil litigation is unlikely to further illuminate the issue at bar, that is, whether and when the administration of pentobarbital induces a state of unconsciousness.
7

Case 1:06-cv-00300-SLR Document 166 Filed 07/27/11 Page 8 of 9 PageID #: 2217
not demand the avoidance of all risk of pain in carrying out execution." Baze, 553 U.S. at 46. Given the record at bar, this factor does not weigh in either parties' favor.
15. Public interest. There is an acknowledged strong public interest in bringing local criminal cases to closure, without undue interference from the federal courts. Plaintiff Jackson was convicted nearly 20 years ago, a fact that speaks for itself. The public also has a strong interest in having the State carry out its executions with seriousness and respect, consistent with the Eighth Amendment. Because there is no evidence that the State of Delaware is not approaching the execution of plaintiff Jackson with seriousness and respect, this factor weighs in favor of defendants.
IT IS FURTHER ORDERED that plaintiffs' motion to reopen (D.1. 142) is denied, for the reasons that follow:
16. Standard of review. To obtain relief for a claim under Rule 60(b)(6), a movant must show "extraordinary circumstances" justifying the reopening of a final judgment. Ackerman v. United States, 340 U.S. 193, 203 (1950). The party seeking relief bears the burden of showing that absent such relief, an "extreme" and "unexpected" hardship will result. United States v. Swift & Co., 286 U.S. 106, 119 (1932). Rule 60(d) allows a court to "entertain an independent action to relieve a party from a judgment." Fed.R.Civ.P. 60(d)(1). An independent action is "available only to
prevent a grave miscarriage of justice." United States v. Beggerly, 524 U.S. 38,47
(1998). A "grave miscarriage of justice" is a "stringent" and "demanding" standard. Gott/eib v. S. C., 310 Fed. Appx. 424, 425 (2d Cir. 2009).
8 


Case 1:06-cv-00300-SLR Document 166 Filed 07/27/11 Page 9 of 9 PageID #: 2218
17. Analysis. Whether the court looks to the standard of review under Rule 60(b)(6) (plaintiffs must demonstrate "extraordinary circumstances") or Rule 60(d) (plaintiffs must demonstrate a need to prevent a "grave miscarriage of justice"), the record at bar is insufficient to reopen the judgment entered by this court in 2009. As discussed above, there has been no affirmative evidence presented that the administration of pentobarbital in Delaware's lethal injection protocol poses a substantial and objectively intolerable risk of harm. Therefore, the substitution of pentobarbital for sodium thiopental does not constitute a factual change which undermines the foundation of my prior ruling under Rule 60. Moreover, the evidence that plaintiffs want to develop through discovery is virtually the same evidence that has been developed through evidentiary hearings in other jurisdictions. As noted, it is unlikely that discovery will illuminate the complicated issue at bar; it, therefore, is unlikely that plaintiffs' concerns and questions will lead to any significant affirmative evidence sufficient to justify reopening judgment.
9

 
 Jackson v. Danberg, 240 F.R.D. 145 (2007)

240 F.R.D. 145 United States District Court,
D. Delaware. Robert W. JACKSON, III, Plaintiff,
v. Carl C. DANBERG, Thomas L. Carroll, Paul
Howard, Other Unknown State Actors Responsible for and Participating in the Carrying Out of Plaintiff’s Execution, all in their individual
and official capacities,1 Defendants.

1

The caption has been changed to reflect “Carl C.

Danberg” as Commissioner of the Delaware

Department of Correction, in place of “Stanley W.

Taylor, Jr.” The parties are directed to advise the court

if any other of the individuals should be changed to

reflect the current holders of the positions represented

in the caption.

No. CIV.06 300 SLR. | Feb. 22, 2007.
Attorneys and Law Firms
*146 Maureen Kearney Rowley, Chief Federal Defender. Michael Wiseman, Helen Marino and Megan McCracken, Assistant Federal Defenders, Federal Community Defender for the Eastern District of Pennsylvania, Capital Habeas Corpus Unit, Philadelphia PA, for Plaintiff.
Loren C. Meyers, Deputy Attorney General and Gregory E. Smith, Deputy Attorney General, State of Delaware Department of Justice, Wilmington, DE, for Defendants.

MEMORANDUM OPINION ROBINSON, Chief Judge.

I. INTRODUCTION Plaintiff Robert Jackson instituted this 42 U.S.C. § 1983 action challenging aspects of defendants’ methods for carrying out lethal injection as violative of the Eighth Amendment of the United States Constitution.2 (D.I. 2) Before the court is plaintiff’s motion for an order certifying a state-wide class pursuant to Fed.R.Civ.P. 23(a),(b)(1) & (2), consisting of all current and future prisoners in the custody of the Delaware Department of Correction who are, or will be, sentenced to death.3 (D.I. 26) Plaintiff’s counsel moves to be appointed as class counsel.4 Although defendants oppose the motion, they acknowledge that the requirements for class certification have all been satisfied except for “numerosity”. (D.I. 28)

Oral argument to address the practical implications posed by plaintiff’s motion was conducted on February 8, 2007. (D.I. 30)

2

Contemporaneously, plaintiff moved for a preliminary

injunction to stay his scheduled execution. (D.I. 6) On

May 9, 2006, the court entered an order enjoining

defendants from carrying out plaintiff’s execution until

further order. (D.I. 9)

3

There are 16 inmates presently under a sentence of

death. (D.I. 28, fn. 1)

4

Plaintiff also submitted a proposed “Notice to the

Class” to be distributed individually to current class

members and to be posted prominently in the facility in

which the putative class is incarcerated. (D.I. 26, ex. 1)

*147 II. STANDARD OF REVIEW [1] [2] A district court has broad discretion to grant or deny class certification. Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir.1985). The court does not inquire into the merits of the lawsuit when determining whether it may be maintained as a class action. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). However, the court must conduct a limited preliminary inquiry, examining beyond the pleadings, to determine whether common evidence could suffice to make out a prima facie case for the class. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 167 (3d Cir.2001).
[3] The party seeking class certification bears the burden of establishing that certification is warranted under the circumstances. In re ML-Lee Acquisition Fund II, L.P. Sec. Litig., 848 F.Supp. 527, 557 (D.Del.1994). Rule 23 of the Federal Rules of Civil Procedure sets forth the requirements for certification of a class. Four requirements must be satisfied in order for a class to be certified under Rule 23(a). Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). These requirements are: (1) the class is so numerous that joinder of all members is impracticable (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and (4) the representative parties will fairly and adequately protect the interests of the class. In re: Warfarin Sodium Antitrust Litigation, 212 F.R.D. 231, 246 (D.Del.2002). Plaintiff
1

Jackson v. Danberg, 240 F.R.D. 145 (2007)
bears the burden to “establish that all four requisites of Rule 23(a) and at least one part of Rule 23(b) are met.” Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994).
III. DISCUSSION
A. Numerosity [4] [5] The factors to consider with respect to the numerosity requirement are (1) the size of the class, (2) the expediency of joinder, and (3) the practicality of multiple lawsuits. ML-Lee, 848 F.Supp. at 558. Plaintiff’s putative class would potentially have 16 members. The number of class members is fluid, argues plaintiff, because new members are added (due to new death sentences) and deleted (by death) on a regular basis. (D.I. 27) For example, over the last 12 months, two inmates were added to death row while two other inmates were granted relief that removed them from death row, representing a 25% change in the composition of the class. (Id. at 3)
Defendants counter that 16 potential members is an insufficient number of class members to satisfy the numerosity requirement and individual joinder of the other 15 death row inmates to plaintiff’s action is not impracticable. (D.I. 28) Because all putative class members have counsel appointed for representation in their respective post-conviction challenges, defendants assert that these attorneys can assist in filing individual suits similar to plaintiff’s or could intervene in the action at bar.
[6] It is clear that there is no rigid minimum number of class members necessary to warrant certification. In re Daimlerchrysler AG Securities Litigation, 216 F.R.D. 291, 295 (D.Del.2003); Manning v. Princeton Consumer Discount Company, Inc., 390 F.Supp. 320, 324 (E.D.Pa.1975). And the numerosity requirement has been relaxed in cases like this where injunctive and declaratory relief is sought by the class. Grant v. Sullivan, 131 F.R.D. 436, 446 (E.D.Pa.1990) citing Weiss v. York Hospital, 745 F.2d 786, 808 (3d Cir.1984). Accordingly, the court concludes that the putative class of 16 members is sufficient, especially considering that, as long as the death penalty is a viable sanction, the class possesses the potential to increase at random. To that end, although the identity of the members of the putative class may change, the defining characteristics and the parameters of the class will remain the same.
While defendants have opposed this motion primarily based on their assertion that joinder is possible and, alternatively, that each death row inmate can proceed with individual actions on the same claims, the court is not convinced that proceeding in either fashion *148 will result in consistent adjudications or will be the most

prudent course to conserve scarce judicial resources. Specifically, defendants have not presented any practical reason for the court to deny certification nor have they addressed how to deal with the morass of problems associated with adding and removing parties from on-going litigation at various stages of litigation, nor how to ensure that judicial determinations are consistently and evenly applied. It is likewise dubious that counsel appointed to represent the respective death row inmates for post-conviction relief could be appointed for representation in the civil rights actions. In contrast, plaintiff’s counsel are willing to assume representation of the class without seeking fees or costs.5

5

According to plaintiff, his counsel are “experienced

counsel employed by the Capital Habeas Corpus Unit

of the Federal Community Defender for the Eastern

District of Pennsylvania...[t]hey possess special

expertise in capital jurisprudence and with regard to the

Eighth Amendment and civil rights issues that will arise

in this case.” (D.I. 27 at 11) Defendants do not

challenge counsel’s qualifications. (D.I. 28)

B. Remaining Requirements of Rule 23(a) Since defendants concede that plaintiff has satisfied the remaining requirements of Rule 23(a), it is unnecessary to discuss these factors at length. Plaintiff has demonstrated the commonality requirement; the issues before the court are whether aspects of Delaware’s method for carrying out lethal injection violate the Eighth Amendment. These issues will be resolved by a common set of facts. Baby Neal, 43 F.3d at 56.
The typicality requirement is satisfied because the injunctive relief sought to stop unconstitutional practices related to lethal injection will benefit the entire class and will not adversely affect the right of any absent class member. In re Prudential Ins. Co., 148 F.3d 283, 311 (3d Cir.1998) (“The typicality requirement is designed to align the interests of the class and the class representatives so that the latter will work to benefit the entire class through the pursuit of their own goals.”); Baby Neal, 43 F.3d at 58 (“Actions requesting declaratory and injunctive relief to remedy conduct directed at the class clearly fit the mold”).
The representative parties will adequately protect the interests of the class because moving counsel are qualified, experienced in this area of the law, and ably equipped to pursue this class action. Moreover, plaintiff is an adequate representative of the proposed class because he shares the same issues of ensuring a constitutionally sufficient execution and his interests do not conflict with members of the putative class. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3d Cir.1975).
2

Jackson v. Danberg, 240 F.R.D. 145 (2007)

C. Requirements of Rule 23(b)(1) and (2) The proposed class passes muster under Rule 23(b)(1) because allowing individual actions would create a risk of inconsistent decisions based on the same facts and law, which could be dispositive of plaintiff’s individual rights.6 Moreover, the putative class satisfies Rule 23(b)(2) because the court’s decisions on the lethal injection issues should apply to all sentenced to death.

6

Defendants “take no position whether maintaining

individual actions would create a risk of inconsistent

adjudications of the putative class’ claims or would be

dispositive of a potential plaintiff’s rights.” (D.I. 28 at

5) Defendants do not dispute that Rule 23(b)(2) is

satisfied because the State of Delaware’s lethal

injection practices apply to any inmate subject to the

death penalty.

D. Notice to the Class Plaintiff’s proposed Notice to the Class is appropriate and necessary to formally advise the potential class members of their rights in this litigation. There has been no showing that posting this information in an area accessible to death row inmates will pose any problem or concern.
E. Appoint Counsel Michael Wiseman, Helen Marino and Megan McCracken, of the Capital Habeas Corpus Unit, Federal Community Defender Office for the Eastern District of Pennsylvania, are appointed counsel for the class.
IV. CONCLUSION An order consistent with this memorandum opinion shall issue.

*149 ORDER
At Wilmington this 22d day of February, 2007, for the reasons stated in the memorandum opinion issued this same date;
IT IS ORDERED that:
1. Plaintiff’s motion (D.I. 26) is granted. This case is certified as a class action pursuant to Fed.R.Civ.P. 23(b)(1) & (2).
2. The following are appointed as class counsel with the understanding and agreement that counsel will not petition for fees or costs:
Michael Wiseman, Helen Marino, Megan McCracken
Capital Habeas Corpus Unit
Federal Community Defender Office for the Eastern
District of Pennsylvania
Suite 545 West-The Curtis Center
Philadelphia, PA 19106
215-928-0520
3. Plaintiff’s Proposed Notice to Class (D.I. 26, ex. 1) is approved. Class counsel shall provide one copy to each member of the class and a copy or copies will be posted prominently in the area(s) in which the class is incarcerated.
	  

3

 
 Jackson v. Taylor
United States District Court for the District of Delaware May 9, 2006, Decided Civ. No. 06-300-SLR

Reporter: 2006 U.S. Dist. LEXIS 27658; 2006 WL 1237044 ROBERT W. JACKSON, III., Plaintiff, v. STANLEY W. TAYLOR, JR., THOMAS L. CARROLL, BUREAU CHIEF PAUL HOWARD, OTHER UNKNOWN STATE ACTORS RESPONSIBLE FOR AND PARTICIPATING IN THE CARRYING OUT OF PLAINTIFF'S EXECUTION, Defendants.
Subsequent History: Class certification granted by Jackson v. Danberg, 240 F.R.D. 145, 2007 U.S. Dist. LEXIS 12376 (D. Del., 2007) Vacated by, Remanded by Jackson v. Danberg, 2011 U.S. App. LEXIS 18677 (3d Cir., July 18, 2011)
Prior History: [*1] State v. Jackson, 2006 Del. Super. LEXIS 195 (Del. Super. Ct., May 3, 2006)
Counsel: For Robert W. Jackson, III, Plaintiff: Michael Wiseman, Federal Community Defender for the Eastern District of PA, Capital Habeas Unit, Federal Court Division, Defender Association of Philadelphia, Philadelphia, PA US.
For Stanley W. Taylor, Jr., Commissioner, Delaware Department of Correction, Thomas L. Carroll, Warden, Delaware Correctional Center, Bureau Chief Paul Howard, Delaware Bureau of Prisons, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, All in their Individual and Official Capacities, Defendants: Gregory E. Smith, Department of Justice, Wilmington, DE; Loren C. Meyers, Department of Justice, State of Delaware, Wilmington, DE.

IT IS ORDERED that, for the reasons that follow, the motion for preliminary injunction (D.I. 6) is granted:
1. Plaintiff Robert W. Jackson, III is scheduled to be executed [*2] on May 19, 2006. On May 8, 2006, he filed the above captioned action, pursuant to 42 U.S.C. § 1983, alleging that his execution under the likely protocol to be used by defendants would subject him to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. (D.I. 2) Plaintiff also moved for discovery and for a preliminary injunction to enjoin the scheduled execution. (D.I. 5, 6)
2. During a May 8, 2006 telephone conference, the court expressed concerns over whether it had jurisdiction to consider plaintiff's claims on the merits in light of the case being considered by the United States Supreme Court in Hill v. McDonough, 05-8794, certiorari granted, 126 S.Ct. 1189, 163 L. Ed. 2d 1144 (Jan. 25, 2006). 1
3. After conferring with counsel again on May 9, 2006, it was agreed that the Supreme Court's decision in Hill will have a dispositive effect on plaintiff's claims and that staying this litigation is the most prudent course of action.
4. It is anticipated that the Supreme Court will issue a decision in Hill before June 30, 2006. Therefore, [*3] the case is stayed until July 24, 2006, when the court shall conduct a telephonic status conference with the parties at 3:00 p.m. Plaintiff's counsel shall initiate the call.

Judges: Sue L. Robinson, United States District Judge. Opinion by: Sue L. Robinson
Opinion MEMORANDUM ORDER

IT IS FURTHER ORDERED that defendants, and their agents, employees and contractors, are hereby enjoined from carrying [*4] out plaintiff's execution until further order of this court, as plaintiff has demonstrated, without opposition, that a preliminary injunction to maintain the status quo is warranted. United States v. Bell, 414 F.3d 474, 478 n.4 (3d Cir. 2005).

At Wilmington this 9th day of May, 2006, having reviewed Sue L. Robinson

plaintiff's complaint and motion for preliminary injunction, and having conferred with counsel;

United States District Judge

1 The questions before the Supreme Court are: (1) Whether a complaint brought under 42 U.S.C. § 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254; and (2) Whether, under [the Supreme Court's] decision in Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 158 L. Ed. 2d 924 (2004), a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 U.S.C. § 1983.

 
 Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 1 of 19
CLOSED, PaperDocuments, DEATHPENALTY, MEDIATION
U.S. District Court District of Delaware (Wilmington) CIVIL DOCKET FOR CASE #: 1:06−cv−00300−SLR

Jackson v. Danberg et al Assigned to: Judge Sue L. Robinson Related Cases: 1:01−cv−00552−SLR
1:07−cv−00188−SLR Case in other court: Third Circuit, 09−01925
Third Circuit, 09−02052 USCA Third Circuit, 11−09002 Cause: 42:1983 Prisoner Civil Rights Plaintiff

Date Filed: 05/08/2006 Date Terminated: 07/27/2011 Jury Demand: None Nature of Suit: 535 Death Penalty − Habeas Corpus Jurisdiction: Federal Question

Robert W. Jackson, III

represented by Helen Marino Federal Community Defender Office Eastern District of PA Capital Habeas Unit Curtis Center Building, 545 West 601 Walnut Street Philadelphia, PA 19106 215−928−0520 Email: helen_marino@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria K. Pulzetti Federal Community Defender Office Eastern District of PA Capital Habeas Unit Curtis Center Building, 545 West 601 Walnut Street Philadelphia, PA 19106 215−928−0520 Fax: 215−928−0826 Email: maria_pulzetti@fd.org ATTORNEY TO BE NOTICED

Megan McCracken Federal Community Defender Office Eastern District of PA Capital Habeas Unit Curtis Center Building, 545 West 601 Walnut Street Philadelphia, PA 19106 215−928−0520 Email: megan_mccracken@fd.org TERMINATED: 05/13/2008 ATTORNEY TO BE NOTICED

Michael Wiseman Federal Community Defender Office Eastern District of PA Capital Habeas Unit Curtis Center Building, 545 West 601 Walnut Street Philadelphia, PA 19106 (215) 928−0520 ATTORNEY TO BE NOTICED

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 2 of 19

V. Defendant Stanley W. Taylor, Jr. Commissioner, Delaware Department of Correction TERMINATED: 02/23/2007
Defendant Thomas L. Carroll Warden, Delaware Correctional Center
Defendant Bureau Chief Paul Howard Delaware Bureau of Prisons

represented by Gregory E. Smith Department of Justice 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577−8400 Email: greg.smith@state.de.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Loren C. Meyers Department of Justice State of Delaware 820 N. French Street, 8th Floor Carvel Office Building Wilmington, DE 19801 (302) 577−8500 TERMINATED: 06/30/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Roberts McFarlan Department of Justice 820 N. French St. Wilmington, DE 19801 (302) 577−8400 Email: elizabeth.mcfarlan@state.de.us ATTORNEY TO BE NOTICED
represented by Gregory E. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Loren C. Meyers (See above for address) TERMINATED: 06/30/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Roberts McFarlan (See above for address) ATTORNEY TO BE NOTICED
Paul R. Wallace Department of Justice State of Delaware 820 N. French Street, 8th Floor Carvel Office Building Wilmington, DE 19801 (302) 577−8864 Fax: (302) 577−5865 Email: paul.wallace@state.de.us ATTORNEY TO BE NOTICED
represented by Gregory E. Smith (See above for address) LEAD ATTORNEY

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 3 of 19

ATTORNEY TO BE NOTICED

Loren C. Meyers (See above for address) TERMINATED: 06/30/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Roberts McFarlan (See above for address) ATTORNEY TO BE NOTICED

Paul R. Wallace (See above for address) ATTORNEY TO BE NOTICED

Defendant
Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution All in their Individual and Official Capacities

represented by Gregory E. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Loren C. Meyers (See above for address) TERMINATED: 06/30/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Roberts McFarlan (See above for address) ATTORNEY TO BE NOTICED

Paul R. Wallace (See above for address) ATTORNEY TO BE NOTICED

Defendant Carl C. Danberg

represented by Gregory E. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Loren C. Meyers (See above for address) TERMINATED: 06/30/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Roberts McFarlan (See above for address) ATTORNEY TO BE NOTICED

Paul R. Wallace (See above for address) ATTORNEY TO BE NOTICED

Notice Only John S. Malik

represented by John S. Malik John S. Malik, Esq. 100 East 14th. St. Wilmington, DE 19801 (302) 427−2247 Fax: (302)427−2414

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Email: jmalik@malik−law.com ATTORNEY TO BE NOTICED

Notice Only Thomas A. Foley

represented by Thomas A. Foley Thomas A. Foley, Esquire 1905 Delaware Avenue Wilmington, DE 19806 (302) 658−3077 Email: taf@taf−law.com ATTORNEY TO BE NOTICED

Date Filed 05/08/2006 05/08/2006
05/08/2006 05/08/2006 05/08/2006 05/08/2006 05/08/2006 05/09/2006 05/09/2006 05/09/2006
05/09/2006 05/09/2006

# Docket Text
1 MOTION for Leave to Proceed in forma pauperis − filed by Robert W. Jackson, III. (dab, ) (Entered: 05/08/2006)
2 COMPLAINT filed pursuant to 42:1983 against Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll − filed by Robert W. Jackson, III. (Attachments: # 1 Civil Cover Sheet)(dab, ) (Entered: 05/08/2006)
3 Notice of Availability of a U.S. Magistrate Judge to Exercise Jurisdiction (Attachments: # 1 Acknowledgement of Consent Form) (dab, ) (Entered: 05/08/2006)
4 MOTION for Discovery − filed by Robert W. Jackson, III. (Attachments: # 1 Text of Proposed Order)(Wiseman, Michael) (Entered: 05/08/2006)
5 OPENING BRIEF in Support re 4 MOTION for Discovery filed by Robert W. Jackson, III.Answering Brief/Response due date per Local Rules is 5/22/2006. (Wiseman, Michael) (Entered: 05/08/2006)
6 MOTION for Preliminary Injunction − filed by Robert W. Jackson, III. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Part 1 of 3# 3 Exhibit Part 2 of 3# 4 Exhibit Part 3 of 3)(Wiseman, Michael) (Entered: 05/08/2006)
Minute Entry for proceedings held before Judge Sue L. Robinson : Telephone Conference held on 5/8/2006. Set next teleconf. for 4:00 p.m. on 5/9/06. (Court Reporter V. Gunning.) (rld, ) (Entered: 05/09/2006)
7 NOTICE of by Robert W. Jackson, III Notice of Filing of Proposed Order (Attachments: # 1 Text of Proposed Order)(Wiseman, Michael) Additional attachment(s) added on 5/9/2006 (fmt, ). (Entered: 05/09/2006)
CORRECTING ENTRY: the initial proposed order attachment to D.I. 7 was incorrect; now attached to D.I. 7 is a PDF file correcting the Judge's name on the proposed order (fmt, ) Modified on 5/9/2006 (fmt, ). (Entered: 05/09/2006)
8 ORDER granting Motion to Proceed IFP. Filing Fee of $350.00 Assessed. Plaintiff requested to submit trust fund account statement. Notice of Compliance deadline set for 6/12/2006. Signed by Judge Sue L. Robinson on 5/9/06. (fmt, ) Modified on 5/9/2006 (fmt, ). (Entered: 05/09/2006)
CORRECTING ENTRY: the text of the entry for D.I. 8 has been corrected; 'copy to pltf. with Mag. Consent Form' has been taken out of the text of the docket entry (fmt, ) (Entered: 05/09/2006)
9 MEMORANDUM ORDER granting 6 MOTION for Preliminary Injunction filed by Robert W. Jackson, III. The case is STAYED until 7/24/06, when the court shall conduct a telephonic status conference with the parties at 3:00 p.m. It is further ordered that defendants, and their agents, employees and contractors, are here ENJOINED from carrying out plaintiff's execution until further order of this court. Signed by Judge Sue L. Robinson on 5/9/06. (fmt, ) (Entered: 05/09/2006)

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05/09/2006 05/10/2006 06/12/2006 06/12/2006 07/05/2006 07/24/2006
07/24/2006 08/11/2006 09/08/2006 10/03/2006 10/03/2006
10/03/2006 10/04/2006
10/04/2006 10/06/2006

Minute Entry for proceedings held before Judge Sue L. Robinson : Telephone Conference held on 5/9/2006. (Court Reporter V. Gunning.) (rld, ) (Entered: 05/10/2006)
Set Deadlines/Hearings: Telephone Conference set for 7/24/2006 03:00 PM before Honorable Sue L. Robinson. (rld, ) (Entered: 05/10/2006)
Filing fee paid: $ 350.00, receipt number 143771; per 5/9/06 order. (mwm, ) (Entered: 06/12/2006)
10 Letter to Judge Robinson from Robert Jackson, III regarding filing fee; requesting that the court address all further issues to attorneys (fmt, ) (Entered: 06/13/2006)
11 TRANSCRIPT of Telephone Conference held on 5/9/06 before Judge Robinson. Court Reporter: V. Gunning. (Transcript on file in Clerk's Office) (fmt, ) (Entered: 07/10/2006)
12 ORDER Set/Reset Answer Deadlines: Paul Howard answer due 9/24/2006; Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution answer due 9/24/2006; Stanley W. Taylor, Jr answer due 9/24/2006; Thomas L. Carroll answer due 9/24/2006. Scheduling TeleConference set for 10/4/2006 04:30 PM before Honorable Sue L. Robinson. Signed by Judge Sue L. Robinson on 7/24/06. (Attachments: # 1 Sample Discovery Order)(rld, ) (Entered: 07/24/2006)
Minute Entry for proceedings held before Judge Sue L. Robinson : Telephone Conference held on 7/24/2006. (Court Reporter Hawkins.) (rld, ) (Entered: 07/24/2006)
13 SEALED TRANSCRIPT of Telephone Conference held on 7/24/06 before Judge Robinson. Court Reporter: Hawkins Reporting Service. (Transcript on file in Clerk's Office) (fmt, ) (Entered: 08/11/2006)
14 ANSWER to Complaint by Paul Howard, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) (Entered: 09/08/2006)
15 PROPOSED ORDER Scheduling by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) (Entered: 10/03/2006)
16 NOTICE OF SERVICE of Document Production re 4 MOTION for Discovery by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. Related document: 4 MOTION for Discovery filed by Robert W. Jackson, III. (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) (Entered: 10/03/2006)
17 PROPOSED ORDER Autopsy Records re 16 Notice of Service, by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) (Entered: 10/03/2006)
18 RESPONSE to Plaintiff's Motion for Discovery by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance Service)(Smith, Gregory) Modified on 10/4/2006 (fmt, ). (Entered: 10/04/2006)
Minute Entry for proceedings held before Judge Sue L. Robinson : Telephone Conference held on 10/4/2006. (Court Reporter V. Gunning.) (rld, ) (Entered: 10/05/2006)
19 ORDER granting pltf.'s discovery request re copies of autopsy reports for each execution accomplished by lethal injection from its inception to date, subject to limitations on secondary disclosures. Signed by Judge Sue L. Robinson on 10/4/06. (rld, ) (Entered: 10/06/2006)

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10/06/2006
10/11/2006 10/11/2006 10/20/2006 10/23/2006 10/25/2006 11/03/2006 11/03/2006 11/27/2006 12/01/2006 12/01/2006 12/29/2006
01/05/2007 01/24/2007 02/08/2007

20 SCHEDULING ORDER: Case referred to the Magistrate Judge for the purpose of exploring ADR. Joinder of Parties due by 12/1/2006. Amended Pleadings due by 12/1/2006. Discovery due by 6/30/2007. Motions in Limine due by 6/6/2007. Responses to Motions in Limine due by 6/13/2007. Pretrial Conference set for 6/20/2007 04:30 PM in Courtroom 6B before Honorable Sue L. Robinson. Bench Trial set for 7/23/2007 09:30 AM in Courtroom 6B before Honorable Sue L. Robinson. Signed by Judge Sue L. Robinson on 10/4/06. (rld, ) (Entered: 10/06/2006)
CASE REFERRED to Mediation. (cab, ) (Entered: 10/11/2006)
21 Order Setting Teleconference: Telephone Conference set for 11/27/2006 09:30 AM before Honorable Mary Pat Thynge to discuss ADR. Signed by Judge Mary Pat Thynge on 10/11/2006. (cab, ) (Entered: 10/11/2006)
ReSet Deadlines/Hearings: Bench Trial reset for 9/10/2007 09:30 AM in Courtroom 6B before Honorable Sue L. Robinson. (rld, ) (Entered: 10/20/2006)
22 ORDER ReSetting Scheduling Order Deadlines: Bench Trial reset for 9/10/2007 09:30 AM in Courtroom 6B before Honorable Sue L. Robinson. Signed by Judge Sue L. Robinson on 10/23/06. (rld, ) (Entered: 10/23/2006)
23 ORDER ReSetting Scheduling Order Deadlines Bench Trial reset for 9/4/2007 09:30 AM in Courtroom 6B before Honorable Sue L. Robinson. Signed by Judge Sue L. Robinson on 10/25/06. (rld, ) (Entered: 10/25/2006)
24 NOTICE OF SERVICE of Document Production by Paul Howard, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) Modified on 11/3/2006 (fmt, ). (Entered: 11/03/2006)
CORRECTING ENTRY: An incorrect code was used to docket D.I. 24. "Notice of Service" under "Discovery Documents" should have been used. The docket text of D.I. 24 has been corrected to reflect that it is a NOTICE OF SERVICE of Document Production. (fmt, ) (Entered: 11/03/2006)
25 ORDER Setting Mediation Conferences:Mediation Conference set for 6/15/2007 at 10:00 AM in Courtroom 6C before Honorable Mary Pat Thynge. Signed by Judge Mary Pat Thynge on 11/27/2006. (cak) (Entered: 11/27/2006)
26 MOTION to Certify Class Plaintiff's Motion for Class Certification − filed by Robert W. Jackson, III. (Attachments: # 1 Exhibit Proposed Notice to the Class# 2 Text of Proposed Order Proposed Order)(Wiseman, Michael) (Entered: 12/01/2006)
27 OPENING BRIEF in Support re 26 MOTION to Certify Class Plaintiff's Motion for Class Certification Plaintiff's Memorandum in Support of Motion for Class Certification filed by Robert W. Jackson, III.Answering Brief/Response due date per Local Rules is 12/18/2006. (Wiseman, Michael) (Entered: 12/01/2006)
28 MEMORANDUM in Opposition re 26 MOTION to Certify Class Plaintiff's Motion for Class Certification, 27 Opening Brief in Support, filed by Paul Howard, Stanley W. Taylor, Jr, Thomas L. Carroll.Reply Brief due date per Local Rules is 1/11/2007. (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) (Entered: 12/29/2006)
29 REPLY BRIEF re 26 MOTION to Certify Class Plaintiff's Motion for Class Certification Plaintiff's Reply Memorandum in Support of Motion for Class Certification filed by Robert W. Jackson, III. (Wiseman, Michael) (Entered: 01/05/2007)
30 ORDER Setting Hearing on Motion 26 MOTION to Certify Class Plaintiff's Motion for Class Certification : Motion Hearing set for 2/8/2007 10:00 AM in Courtroom 6B before Honorable Sue L. Robinson. Signed by Judge Sue L. Robinson on 1/24/07. (rld) (Entered: 01/24/2007)
Minute Entry for proceedings held before Judge Sue L. Robinson : Oral Argument held on 2/8/2007 re motion to certify class. (Court Reporter V. Gunning.) (rld) (Entered: 02/08/2007)

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02/21/2007 02/23/2007 02/23/2007
03/22/2007
03/22/2007 05/07/2007 05/07/2007
05/15/2007 05/16/2007
05/24/2007 05/30/2007 06/01/2007

31 TRANSCRIPT of Oral Argument held on 2/8/07 before Judge Robinson. Court Reporter: V. Gunning. (Transcript on file in Clerk's Office) (fmt) (Entered: 02/21/2007)
32 MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 2/22/07. (rld) (Entered: 02/23/2007)
33 ORDER granting 26 Motion to Certify Class; the following are appointed class counsel with the understanding and agreement that counsel will not petition for fees or costs: Michael Wiseman, Helen Marino, and Megan McCracken; class counsel shall provide one copy to each member of the class and a copy(ies) will be posted prominently in the area(s) in which the class is incarcerated. Signed by Judge Sue L. Robinson on 2/22/07. (rld) (Entered: 02/23/2007)
CORRECTING ENTRY: The ANSWER to Interrogatories from Warden Thomas Carroll by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll has been deleted from the docket. See Local Rule 5.4. Discovery documents should not be filed with the court. A "Notice of Service" should be filed with the court. (fmt) (Entered: 03/22/2007)
34 NOTICE OF SERVICE of Response to Plaintiff's First Set of Interrogatories by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll.(Smith, Gregory) (Entered: 03/22/2007)
35 NOTICE OF SERVICE of Document Production by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) (Entered: 05/07/2007)
CORRECTING ENTRY: RESPONSE to Discovery Request by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) has been deleted from the docket. See Local Rule 5.4: Discovery documents should not be filed with the court. A "Notice of Service" should be filed with the court. (fmt) (Entered: 05/07/2007)
36 Order Setting Teleconference: Telephone Conference set for 5/31/2007 at 9:00 AM before Honorable Mary Pat Thynge to discuss the status of the case and the mediation scheduled for June 15, 2007. Plaintiff's counsel shall initiate the teleconference call. Signed by Judge Mary Pat Thynge on 5/15/2007. (cak) (Entered: 05/15/2007)
37 NOTICE OF SERVICE of Document Production re 35 Notice of Service, by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. Related document: 35 Notice of Service, filed by Stanley W. Taylor, Jr., Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard. (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) (Entered: 05/16/2007)
38 MOTION for Protective Order − filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (McFarlan, Elizabeth) (Entered: 05/24/2007)
39 MOTION to Continue Plaintffs' Motion to Amend Discovery Schedule and for a New Trial Date − filed by Robert W. Jackson, III. (Attachments: # 1 Certificate of Partial Concurrence# 2 Text of Proposed Order Proposed Order)(Wiseman, Michael) (Entered: 05/30/2007)
40 RESPONSE to Motion re 39 MOTION to Continue Plaintffs' Motion to Amend Discovery Schedule and for a New Trial Date filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Text of Proposed Order # 2 Certificate of Compliance service)(Smith, Gregory)

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06/04/2007 06/04/2007 06/06/2007 06/07/2007 06/07/2007
06/08/2007
06/08/2007 06/08/2007 06/08/2007 06/15/2007 07/09/2007 07/09/2007 07/12/2007
07/16/2007

(Entered: 06/01/2007)
41 REPLY BRIEF Plaintiffs' Reply to Defendant's Response to Plaintiff's Motion to Amend the Discovery Schedule and for a New Trial Date D.I. 39 filed by Robert W. Jackson, III. (Wiseman, Michael) Modified on 6/4/2007 (fmt, ). (Entered: 06/04/2007)
CORRECTING ENTRY: D.I. 41 (Reply Brief) was not linked to the motion when docketed. D.I. 41 is now linked to D.I. 39. (fmt) (Entered: 06/04/2007)
Set Deadlines/Hearings: Telephone Conference set for 6/8/2007 10:00 AM before Honorable Sue L. Robinson. (rld) (Entered: 06/06/2007)
42 RESPONSE to Motion re 38 MOTION for Protective Order Plaintiffs' Answer in Opposition to Protective Order and Cross Motion filed by Robert W. Jackson, III. (Attachments: # 1 Text of Proposed Order)(Wiseman, Michael) (Entered: 06/07/2007)
CROSS MOTION to Compel Defendants to Conduct Appropriate Background Checks Regarding Persons Anonymously Identified as Members of Delaware's Past and Present Lethal Injection Teams and to Disclose to Plaintiff all Non−Identifying Results of Those Checks (See D.I. 42 for this cross motion) − filed by Robert W. Jackson, III. (fmt) (Entered: 06/07/2007)
43 ORDER Motions terminated: MOTION to Compel is withdrawn without prejudice to renew filed by Robert W. Jackson, III, GRANTING 39 MOTION to Continue Plaintffs' Motion to Amend Discovery Schedule and for a New Trial Date filed by Robert W. Jackson, III, GRANTING 38 MOTION for Protective Order filed by Stanley W. Taylor, Jr., Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard. ReSetting Scheduling Order Deadlines: Pretrial Conference set for 10/1/2007 04:30 PM in Courtroom 6B before Honorable Sue L. Robinson.All discovery (fact and expert) due by 10/1/2007.Bench Trial set for 10/9/2007 09:30 AM in Courtroom 6B before Honorable Sue L. Robinson. Signed by Judge Sue L. Robinson on 6/8/07. (rld) (Entered: 06/08/2007)
44 NOTICE OF SERVICE of Defendants' First Set of Interrogatories by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll.(Smith, Gregory) (Entered: 06/08/2007)
45 NOTICE OF SERVICE of Defendants' First Request for Production of Documents by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll.(Smith, Gregory) (Entered: 06/08/2007)
Minute Entry for proceedings held before Judge Sue L. Robinson : Telephone Conference held on 6/8/2007. (Court Reporter V. Gunning.) (rld) (Entered: 06/11/2007)
46 TRANSCRIPT of Telephone Conference held on 6/8/07 before Judge Robinson. Court Reporter: V. Gunning. (Transcript on file in Clerk's Office) (fmt) (Entered: 06/18/2007)
47 NOTICE of Discovery by Robert W. Jackson, III Notice of Response to Interrogatories (Wiseman, Michael) (Entered: 07/09/2007)
48 NOTICE of Discovery by Robert W. Jackson, III Notice of Production of Documents (Wiseman, Michael) (Entered: 07/09/2007)
49 MOTION to Take Deposition of Robert W. Jackson on August 8, 2007 − filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Text of Proposed Order # 2 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 07/12/2007)
SO ORDERED, re 49 MOTION to Take Deposition of Robert W. Jackson on August 8, 2007 filed by Stanley W. Taylor, Jr., Other Unknown State Actors

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07/20/2007 07/20/2007 07/20/2007 07/20/2007 07/20/2007 08/15/2007 08/15/2007 08/16/2007
08/16/2007 08/23/2007

Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard. Signed by Judge Sue L. Robinson on 7/16/07. (rld) (Entered: 07/16/2007)
50 NOTICE to Take Deposition of Robert Jackson on August 8, 2007 by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 07/20/2007)
51 NOTICE to Take Deposition of Dr. Steven Katz on August 9, 2007 by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 07/20/2007)
52 NOTICE to Take Deposition of John Senders on August 27, 2007 by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 07/20/2007)
53 NOTICE to Take Deposition of Dr. Deborah Mash on September 7, 2007 by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 07/20/2007)
54 NOTICE to Take Deposition of Dr. Mark Heath on September 22, 2007 by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 07/20/2007)
55 MOTION to Amend/Correct Plaintiffs' Motion to Amend Complaint − filed by Robert W. Jackson, III. (Attachments: # 1 Amended Complaint Proposed Amendment# 2 Text of Proposed Order)(Wiseman, Michael) (Entered: 08/15/2007)
56 OPENING BRIEF in Support re 55 MOTION to Amend/Correct Plaintiffs' Motion to Amend Complaint filed by Robert W. Jackson, III.Answering Brief/Response due date per Local Rules is 9/4/2007. (Wiseman, Michael) (Entered: 08/15/2007)
57 NOTICE OF SERVICE of Document Production re 16 Notice of Service, 37 Notice of Service,, 35 Notice of Service, 24 Response to Discovery by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. Related document: 16 Notice of Service, filed by Stanley W. Taylor, Jr., Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard, 37 Notice of Service,, filed by Stanley W. Taylor, Jr., Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard, 35 Notice of Service, filed by Stanley W. Taylor, Jr., Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard, 24 Response to Discovery filed by Stanley W. Taylor, Jr., Thomas L. Carroll, Paul Howard. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 08/16/2007)
58 NOTICE to Take Deposition of Dr. Dershwitz on Sept. 10, 2007 by Robert W. Jackson, III.(Wiseman, Michael) (Entered: 08/16/2007)
59 ANSWERING BRIEF in Opposition re 55 MOTION to Amend/Correct Plaintiffs' Motion to Amend Complaint filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll.Reply Brief due date per Local Rules is 9/4/2007. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 08/23/2007)

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 10 of 19

08/26/2007
08/28/2007 08/28/2007
08/31/2007
09/03/2007 09/03/2007 09/03/2007 09/03/2007 09/03/2007 09/03/2007 09/03/2007 09/03/2007 09/03/2007 09/03/2007 09/04/2007
09/06/2007 09/12/2007 09/14/2007

60 MOTION to Withdraw 56 Opening Brief in Support, 55 MOTION to Amend/Correct Plaintiffs' Motion to Amend Complaint Plaintiffs' Notice of Withdrawl with Prejudice of Motion to Amend Complaint and Brief in Support − filed by Robert W. Jackson, III. (Wiseman, Michael) (Entered: 08/26/2007)
Remark: Per D.I. 60 (Notice of Withdrawal of Motion to Amend Complaint with prejudice) D.I. 55 has been withdrawn. (rld) (Entered: 08/28/2007)
61 NOTICE to Take Deposition of Dr. Mark Dershwitz on September 24, 2007 by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 08/28/2007)
62 NOTICE OF SERVICE of Document Production re 57 Notice of Service,,,, by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. Related document: 57 Notice of Service,,,, filed by Stanley W. Taylor, Jr., Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 08/31/2007)
63 Notice of Deposition of Burris by Robert W. Jackson, III.(Wiseman, Michael) Modified on 9/4/2007 (fmt, ). (Entered: 09/03/2007)
64 Notice of Deposition of Carroll by Robert W. Jackson, III.(Wiseman, Michael) Modified on 9/4/2007 (fmt, ). (Entered: 09/03/2007)
65 Notice of Deposition of Danberg by Robert W. Jackson, III.(Wiseman, Michael) Modified on 9/4/2007 (fmt, ). (Entered: 09/03/2007)
66 Notice of Deposition of John Doe II by Robert W. Jackson, III.(Wiseman, Michael) Modified on 9/4/2007 (fmt, ). (Entered: 09/03/2007)
67 Notice of Deposition of John Doe III by Robert W. Jackson, III.(Wiseman, Michael) Modified on 9/4/2007 (fmt, ). (Entered: 09/03/2007)
68 Notice of Deposition of Kearney by Robert W. Jackson, III.(Wiseman, Michael) Modified on 9/4/2007 (fmt, ). (Entered: 09/03/2007)
69 Notice of Deposition of Other Unkown Individuals Who Participated in Creation of New Injection Procedure by Robert W. Jackson, III.(Wiseman, Michael) Modified on 9/4/2007 (fmt, ). (Entered: 09/03/2007)
70 NOTICE OF SERVICE of Notice of Service of Fourth Discovery Request by Robert W. Jackson, III.(Wiseman, Michael) (Entered: 09/03/2007)
71 Notice of Tour by Robert W. Jackson, III.(Wiseman, Michael) Modified on 9/4/2007 (fmt, ). (Entered: 09/03/2007)
72 Notice of Deposition of Pierce by Robert W. Jackson, III.(Wiseman, Michael) Modified on 9/4/2007 (fmt, ). (Entered: 09/03/2007)
CORRECTING ENTRY: D.I. Nos. 63−69, 71 and 72 have been corrected. Counsel should have used "Notice to Take Deposition" found other "Discovery Documents" to docket D.I. Nos. 63−69 and 72 and "Notice of (Other)" found other "Notices" to docket D.I. 71. (fmt) (Entered: 09/04/2007)
Set Deadlines/Hearings: Telephone Conference set for 9/12/2007 04:30 PM before Honorable Sue L. Robinson. (rld) (Entered: 09/06/2007)
Minute Entry for proceedings held before Judge Sue L. Robinson : Telephone Conference held on 9/12/2007. (Court Reporter V. Gunning.) (rlp) (Entered: 09/13/2007)
73 NOTICE to Take Deposition of Dr. Mark Heath on September 22, 2007 by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 09/14/2007)

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 11 of 19

09/18/2007 09/19/2007 09/20/2007 09/20/2007
09/20/2007 09/21/2007 09/21/2007 09/24/2007 09/25/2007 09/26/2007 09/26/2007 09/26/2007 10/05/2007
03/28/2008
04/17/2008

Minute Entry for proceedings held before Judge Sue L. Robinson : Telephone Conference held on 9/18/2007 re dispute during a deposition. (Court Reporter on site at deposition.) (rlp) (Entered: 09/18/2007)
74 Letter to Honorable Sue L. Robinson from Wiseman regarding Letter Brief on Discovery. (Attachments: # 1 Exhibit Transcript of Carroll Deposition 9−18−07)(Wiseman, Michael) (Entered: 09/19/2007)
75 NOTICE of Notice of Supplemental Authority Relating to Letter Brief by Robert W. Jackson, III re 74 Letter Supplemental Authority (Attachments: # 1 Exhibit Opinion in Harbison v. Little)(Wiseman, Michael) (Entered: 09/20/2007)
76 MEMORANDUM in Opposition to D.I. 74 to Plainitffs' Letter Brief filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll.Reply Brief due date per Local Rules is 10/1/2007. (Smith, Gregory) Modified on 9/20/2007 (fmt, ). Modified on 9/20/2007 (fmt, ). (Entered: 09/20/2007)
77 Letter to Hon. Sue L. Robinson from Wiseman regarding Reply to Defendants' Memorandum Response − re 76 Memorandum in Opposition, 74 Letter. (Wiseman, Michael) (Entered: 09/20/2007)
78 ORDER court adopts the standard of review articulated by the USCA for the 8th Circuit re lethal injection protocol. SEE Order for further details. Signed by Judge Sue L. Robinson on 9/21/07. (rlp) (Entered: 09/21/2007)
79 NOTICE OF SERVICE of Defendants' Response to Plaintiffs' Third Discovery Request by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll.(Smith, Gregory) (Entered: 09/21/2007)
Set Deadlines/Hearings: Telephone Conference set for 9/25/2007 11:00 AM before Honorable Sue L. Robinson. (rlp) (Entered: 09/24/2007)
Minute Entry for proceedings held before Judge Sue L. Robinson : Telephone Conference held on 9/25/2007. (Court Reporter V. Gunning.) (rlp) (Entered: 09/25/2007)
Set Deadlines/Hearings: Telephone Conference set for 9/26/2007 02:00 PM before Honorable Sue L. Robinson. (rlp) (Entered: 09/26/2007)
Minute Entry for proceedings held before Judge Sue L. Robinson : Telephone Conference held on 9/26/2007. (Court Reporter V. Gunning.) (rlp) (Entered: 09/26/2007)
80 ORDER postponing the trial and pretrial in this action based on the U.S. Supreme Court having granted the petition for a writ of certiorari in a related matter. Signed by Judge Sue L. Robinson on 9/26/07. (rlp) (Entered: 09/26/2007)
81 NOTICE OF SERVICE of Response to Request for Production of Documents re 62 Notice of Service,, by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. Related document: 62 Notice of Service,, filed by Stanley W. Taylor, Jr., Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard.(Smith, Gregory) (Entered: 10/05/2007)
82 NOTICE OF SERVICE of Defendant's Response to Plainitff's Fourth Discovery Request by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Certificate of Compliance −−service)(Smith, Gregory) (Entered: 03/28/2008)
83 ORDER Setting Hearings( In Chambers Conference set for 5/14/2008 10:30 AM before Judge Sue L. Robinson.). See order for further details. Signed by Judge Sue L. Robinson on 4/17/08. (fmt) (Entered: 04/17/2008)

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 12 of 19

04/21/2008 04/30/2008
05/13/2008 05/14/2008 05/14/2008 05/19/2008 05/22/2008
06/06/2008 06/06/2008
06/11/2008 06/23/2008 06/24/2008 06/25/2008

84 TRANSCRIPT of Telephone Conference held on 9/26/2007 before Judge Robinson. Court Reporter: V. Gunning. (Transcript on file in Clerk's Office) (nfn) (Entered: 04/21/2008)
85 ORDER − The location of the status conference scheduled for Wednesday, May 14, 2008 at 10:30 A.M. has been changed to commence in courtroom 6B, on the sixth floor of the J. Caleb Boggs Federal Building, 844 N. King Street, Wilmington, Delware. ORDER,terminating Deadlines and Hearings:, ORDER, Setting Deadlines/Hearings ( Status Conference set for 5/14/2008 10:30 AM in Courtroom 6B before Judge Sue L. Robinson.). Signed by Judge Sue L. Robinson on 4/30/2008. (nmf) (Entered: 04/30/2008)
86 NOTICE OF SUBSTITUTION OF COUNSEL re Robert W. Jackson, III: Entry of appearance of attorney Michael Wiseman. Attorney Megan McCracken terminated. (Wiseman, Michael) (Entered: 05/13/2008)
Minute Entry for proceedings held before Judge Sue L. Robinson − Status Conference held on 5/14/2008. Pretrial conference scheduled for 6/23/08 at 2:30 P.M. Parties shall submit written submissions regarding: 1) issues; 2) witnesses and 3) availability of witnesses. (Court Reporter V. Gunning.) (nmf) (Entered: 05/14/2008)
Set/Reset Hearings: Pretrial Conference set for 6/23/2008 02:30 PM in Courtroom 6B before Judge Sue L. Robinson. (nmf) (Entered: 05/14/2008)
87 ORDER, A pretrial conference is scheduled for Monday, June 23, 2008 at 2:30 p.m. On or before June 6, 2008, the parties shall file written submissions detailing: (1) the issues to be considered; (2) the witnesses/experts to be presented; and (3) the availability of said witnesses/experts. Signed by Judge Sue L. Robinson on 5/19/2008. (nmf) (Entered: 05/19/2008)
88 Transcript of Hearing held on May 14, 2008 before Judge Robinson. Court Reporter/Transcriber Valerie Gunning,Telephone number 302−573−6194. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/12/2008. Redacted Transcript Deadline set for 6/23/2008. Release of Transcript Restriction set for 8/20/2008. (vjg) (Entered: 05/22/2008)
89 PRETRIAL MEMORANDUM by Robert W. Jackson, III. (Attachments: # 1 Exhibit Redacted Kentucky Protocol)(Wiseman, Michael) (Entered: 06/06/2008)
90 PRETRIAL MEMORANDUM by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Exhibit Delaware Execution Protocol − Attachment #1, # 2 Exhibit Kentucky Lethal Injection Protocol (Redacted), # 3 Exhibit Comparison of Kentucky and Delaware Lethal Injection Protocols, # 4 Exhibit Excerpts from Plaintiffs' Response to Interrogatories, # 5 Exhibit Excerpt from Deposition of Steven M. Katz, M.D., # 6 Exhibit Excerpts from Deposition of Mark J. S. Heath, M.D., # 7 Exhibit Excerpts from Trial Deposition of Mark Dershwitz, M.D.)(McFarlan, Elizabeth) (Entered: 06/06/2008)
91 REPLY BRIEF Plaintiffs' Brief Reply to Defendants' Statement of Issues filed by Robert W. Jackson, III. (Attachments: # 1 Exhibit Slip Opinion, Ohio v. Rivera)(Wiseman, Michael) (Entered: 06/11/2008)
Minute Entry for proceedings held before Judge Sue L. Robinson − Pretrial Conference held on 6/23/2008. (Court Reporter V. Gunning.) (nmf) (Entered: 06/23/2008)
92 Letter to The Honorable Sue L. Robinson from Elizabeth R. McFarlan regarding Materials Requested by the Court − re Pretrial Conference − Final. (McFarlan, Elizabeth) (Entered: 06/24/2008)
93 Transcript of pretrial conference held on June 23, 2008 before Judge Robinson. Court Reporter/Transcriber Valerie Gunning,Telephone number (302) 573−6194. Transcript may be viewed at the court public terminal or purchased through the

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 13 of 19

06/26/2008 06/27/2008 07/09/2008 07/09/2008 07/18/2008
07/18/2008 07/18/2008
07/18/2008 07/18/2008 07/18/2008 07/18/2008 07/18/2008 07/21/2008 07/21/2008
07/21/2008

Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/16/2008. Redacted Transcript Deadline set for 7/28/2008. Release of Transcript Restriction set for 9/23/2008. (vjg) (Entered: 06/25/2008)
94 Letter to Hon. Sue L. Robinson from Plaintiffs' Counsel regarding September 10 Trial. (Attachments: # 1 Exhibit Excerpt from Prior Protocols)(Wiseman, Michael) (Entered: 06/26/2008)
95 ORDER, Setting Hearings( Evidentiary Hearing set for 9/10/2008 09:00 AM in Courtroom 6B before Judge Sue L. Robinson.) Each side will be allotted 2 hours. See order for further details. Signed by Judge Sue L. Robinson on 6/27/2008. (nmf) (Entered: 06/27/2008)
96 MOTION Clarification of Court's Order re 95 Order, Set Hearings Plaintiffs' Motion to Clarify − filed by Robert W. Jackson, III. (Wiseman, Michael) (Entered: 07/09/2008)
97 NOTICE of Notice Pursuant to Local Rule 7.1.1 by Robert W. Jackson, III re 96 MOTION Clarification of Court's Order re 95 Order, Set Hearings Plaintiffs' Motion to Clarify (Wiseman, Michael) (Entered: 07/09/2008)
98 NOTICE of filing the following document(s) in paper format: Documents Produced in Discovery (FILED UNDER SEAL). Notice filed by Gregory E. Smith on behalf of Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) Modified on 7/21/2008 (lid). (Entered: 07/18/2008)
99 NOTICE of filing the following document(s) in paper format: Unredacted Delaware Execution Protocol (FILED UNDER SEAL). Notice filed by Gregory E. Smith on behalf of all defendants (Attachments: # 1 Certificate of Compliance service)(Smith, Gregory) Modified on 7/21/2008 (lid). (Entered: 07/18/2008)
100 STATEMENT re 95 Order, Set Hearings by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Attachments: # 1 Exhibit law review article, # 2 Exhibit declaration and CV, # 3 Certificate of Compliance service)(Smith, Gregory) (Entered: 07/18/2008)
101 NOTICE of Plainitffs' Identification of Witnesses and Proffer of Anticipated Testimony by Robert W. Jackson, III re 95 Order, Set Hearings (Wiseman, Michael) (Entered: 07/18/2008)
102 NOTICE OF SERVICE of Discovery by Robert W. Jackson, III.(Wiseman, Michael) (Entered: 07/18/2008)
103 (SEALED) IN CAMERA REVIEW Unredacted Protocol− re 95 Order, re 99 Notice of Filing. (lid) (Entered: 07/21/2008)
104 (SEALED) Discovery Documents(1 box)− re 95 Order, re 98 Notice of Filing.(lid) (Entered: 07/21/2008)
132 (SEALED) Discovery Documents (2 boxes) re 95 Order (lid) (Entered: 03/12/2009)
CORRECTING ENTRY: Docket Clerk modified text of D.I. numbers 98 and 99 to indicate that items were FILED UNDER SEAL. (lid) (Entered: 07/21/2008)
105 ORDER denying 96 Motion for Clarification. It is further ORDERED that the documents filed by defendants pursuant to the courts June 27, 2008 order shall remain under seal until further order of the court. (PLEASE REFER TO ORDER FOR FURTHER DETAILS.). Signed by Judge Sue L. Robinson on 07/21/2008. (lid) (Entered: 07/21/2008)
Set/Reset Deadlines: Defendants shall notify the the Court whether or not they have objections to items mentioned in the Order issued on 07/21/2008 being made public.Notice of Compliance deadline set for 7/31/2008. (lid) (Entered: 07/22/2008)

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 14 of 19

07/25/2008 07/31/2008
08/29/2008
08/29/2008 09/05/2008 09/08/2008 09/10/2008
09/11/2008 09/16/2008 09/29/2008 09/29/2008 10/28/2008 10/30/2008 10/30/2008

106 Letter to The Honorable Sue L. Robinson from Defendants regarding availability of discovery documents − re Set/Reset Deadlines. (Smith, Gregory) (Entered: 07/25/2008)
107 ORDER, On or before August 31, 2008, defendants shall file with the court, under seal, the revised version of Delaware's lethal injection execution protocol, consistent with the above representation. ORDER Setting Hearings( Telephone Conference set for 9/5/2008 08:30 AM before Judge Sue L. Robinson.). Signed by Judge Sue L. Robinson on 7/31/2008. (nmf) (Entered: 07/31/2008)
CORRECTING ENTRY: Docket Clerk has deleted D.I. 108, which was previously filed as a notice of filing paper documents, due to the items being filed incorrectly. Pursuant to the Order issued in this case on 07/31/2008 D.I. 107, counsel was instructed to file the items under SEAL. Counsel is advised to refer to the Courts website for instructions on how to properly file these items under Seal. (lid) (Entered: 08/29/2008)
108 SEALED RESPONSE to Order re 107 Order, Set Hearings,, filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (Smith, Gregory) (Entered: 08/29/2008)
Minute Entry for proceedings held before Judge Sue L. Robinson − Telephone Conference held on 9/5/2008. (Court Reporter V. Gunning.) (nmf) (Entered: 09/12/2008)
Cancelled Hearings: Hearing scheduled for 09/10/2008 at 9:00 a.m. is hereby cancelled. (lid) (Entered: 09/08/2008)
109 ORDER − REFERRING CASE to Mediation for the purpose of negotiating the final version of lethal injection protocol. ORDER− Setting Deadlines: Plaintiffs revisions to proposed protocol due by 09/19/2008; Defendants Response to suggested revisions due by 10/03/2008. ORDER−terminating Hearings: Evidentiary hearing scheduled for 09/10/2008 is hereby cancelled. (PLEASE REFER TO ORDER FOR FURTHER DETAILS.) Signed by Judge Sue L. Robinson on 09/10/2008. (lid) (Entered: 09/10/2008)
110 Order Setting Teleconference: Telephone Conference set for 9/16/2008 at 2:30 PM before Judge Mary Pat Thynge to discuss the status of the case and further mediation. Signed by Judge Mary Pat Thynge on 9/11/2008. (cak) (Entered: 09/11/2008)
111 ORDER Setting Mediation Conferences: Mediation Conference set for 10/27/2008 at 10:00 AM in Courtroom 2B before Judge Mary Pat Thynge. Signed by Judge Mary Pat Thynge on 9/16/2008. (cak) (Entered: 09/16/2008)
112 REDACTED VERSION of 108 Response to Order JTVCC Procedure 2.7, Attachment #10 by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (McFarlan, Elizabeth) (Entered: 09/29/2008)
113 REDACTED VERSION of 108 Response to Order JVCC Procedure 2.7, Attachment #1 by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (McFarlan, Elizabeth) (Entered: 09/29/2008)
114 Letter to The Hon. Sue L. Robinson from Elizabeth R. McFarlan, Esq. regarding Report on Mediation Proceedings − re 109 Order, Order Referring Case to Mediation, Set Deadlines, Terminate Deadlines and Hearings,,,,. (McFarlan, Elizabeth) (Entered: 10/28/2008)
115 Letter to Honorable Sue L. Robinson from Michael Wiseman, Helen Marino, Maria Pulzetti regarding Mediation. (Pulzetti, Maria) (Entered: 10/30/2008)
116 ORDER, On or before November 12, 2008, plaintiffs shall specifically identify what portions, if any, of Delaware's protocol are substantively different from that approved by the Supreme Court in Baze. On or before November 26, 2008, defendants may respond.Signed by Judge Sue L. Robinson on 10/30/2008. (nmf)

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 15 of 19

11/12/2008 11/18/2008 11/19/2008 11/19/2008 11/24/2008
12/19/2008 12/19/2008
12/19/2008 01/16/2009 01/23/2009 01/23/2009 01/29/2009 01/30/2009
02/17/2009

(Entered: 10/30/2008)
117 RESPONSE to Order re 116 Order, filed by Robert W. Jackson, III. (Pulzetti, Maria) (Entered: 11/12/2008)
118 RESPONSE to Order re 116 Order, filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (McFarlan, Elizabeth) Modified on 11/19/2008 (lid). (Entered: 11/18/2008)
CORRECTING ENTRY: Pursuant to request of counsel, D.I. 118 has been modified to include corrected version of Certificate of Service. (lid) (Entered: 11/19/2008)
119 RESPONSE to Order re 116 Order, filed by Robert W. Jackson, III. (Pulzetti, Maria) (Entered: 11/19/2008)
120 ORDER, Setting Scheduling Order Deadlines ( Defendants' Dispositive Motions due by 12/19/2008., Plaintiffs' Answering Brief due 1/16/2009., Defendants' Reply Brief due 1/23/2009., Oral Argument set for 1/29/2009 10:00 AM in Courtroom 6B before Judge Sue L. Robinson.) SEE ORDER FOR FURTHER DETAILS. Signed by Judge Sue L. Robinson on 11/24/2008. (nmf) (Entered: 11/24/2008)
121 MOTION for Summary Judgment − filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (McFarlan, Elizabeth) (Entered: 12/19/2008)
122 OPENING BRIEF in Support re 121 MOTION for Summary Judgment filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll.Answering Brief/Response due date per Local Rules is 1/12/2009. (McFarlan, Elizabeth) (Entered: 12/19/2008)
123 APPENDIX re 122 Opening Brief in Support, of Motion for Summary Judgment by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (McFarlan, Elizabeth) (Entered: 12/19/2008)
124 ANSWERING BRIEF in Opposition re 121 MOTION for Summary Judgment filed by Robert W. Jackson, III.Reply Brief due date per Local Rules is 1/29/2009. (Wiseman, Michael) (Entered: 01/16/2009)
125 REPLY BRIEF re 121 MOTION for Summary Judgment filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (McFarlan, Elizabeth) (Entered: 01/23/2009)
126 APPENDIX re 125 Reply Brief by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr, Thomas L. Carroll. (McFarlan, Elizabeth) (Entered: 01/23/2009)
Minute Entry for proceedings held before Judge Sue L. Robinson − Oral Argument held on 1/29/2009 re 121 MOTION for Summary Judgment. (Court Reporter V. Gunning.) (nmf) (Entered: 01/29/2009)
127 Official Transcript of held on January 29, 2009 before Judge Robinson. Court Reporter/Transcriber Valerie Gunning,Telephone number (302) 573−6194. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/20/2009. Redacted Transcript Deadline set for 3/2/2009. Release of Transcript Restriction set for 4/30/2009. (vjg) (Entered: 01/30/2009)
128 SEALED Transcript of Telephone Conference held on 9/5/2008 before Judge Sue L. Robinson. (Transcript on file in Clerk's Office) (lid) (Entered: 02/17/2009)

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 16 of 19

03/11/2009 03/11/2009 03/12/2009 03/30/2009 04/09/2009
04/14/2009 04/17/2009
04/17/2009
04/21/2009 07/07/2009 10/15/2009 10/15/2009 10/15/2009 03/31/2010
10/13/2010

129 MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 3/11/2009. (nmf) (Entered: 03/11/2009)
130 ORDER granting 121 Motion for Summary Judgment. The Clerk of the Court is directed to enter judgment in favor of defendants and against plaintiffs. It is further ordered that the stay entered on May 6, 2006, shall remain in effect pending appeal. Signed by Judge Sue L. Robinson on 3/11/2009. (nmf) (Entered: 03/11/2009)
131 JUDGMENT in favor of defendants and against plaintiffs.(CASE CLOSED) Signed by Judge Sue L. Robinson on 3/12/2009. (nmf) (Entered: 03/12/2009)
133 NOTICE OF APPEAL of 131 Judgment, 130 Order on Motion for Summary Judgment,. Appeal filed by Robert W. Jackson, III. (Wiseman, Michael) (Entered: 03/30/2009)
134 NOTICE OF CROSS APPEAL to the Third Circuit of 130 Order on Motion for Summary Judgment,. Cross Appeal filed by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Carl C. Danberg, Thomas L. Carroll. (McFarlan, Elizabeth) (Entered: 04/09/2009)
USCA Appeal Fees received: $ 455, receipt number 156976 re 134 Notice of Cross Appeal (Third Circuit), Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard, Carl C. Danberg. TPO (Third Circuit) Issued. (fms) (Entered: 04/14/2009)
135 NOTICE of Docketing Record on Appeal from USCA for the Third Circuit re 134 Notice of Cross Appeal (Third Circuit), Notice of Cross Appeal (Third Circuit) filed by Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard, Carl C. Danberg. USCA Case Number 09−2052. USCA Case Manager: Tina Koperna (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF) (tk, ) (Entered: 04/17/2009)
136 NOTICE of Docketing Record on Appeal from USCA for the Third Circuit re 133 Notice of Appeal (Third Circuit) filed by Robert W. Jackson, III. USCA Case Number 09−1925. USCA Case Manager: Tina Koperna (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF) (tk, ) (Entered: 04/17/2009)
137 TRANSCRIPT REQUEST by Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Carl C. Danberg, Thomas L. Carroll TRANSCRIPT NOT NEEDED (McFarlan, Elizabeth) (Entered: 04/21/2009)
138 ORDER of USCA granting IFP. (tk, ) (Entered: 07/07/2009)
139 Letter to Clerk from Helen A. Marino, Assistant Federal Defender, enclosing check for $455.00, offered on behalf of Robert Jackson, III, to satisfy the filing fee for the Notice of Appeal filed by Mr. Jackson and the plaintiff class. (fms) (Entered: 10/15/2009)
USCA Appeal Fees received: $ 455, receipt number 1091 re 133 Notice of Appeal (Third Circuit) filed by Robert W. Jackson, III. (fms) (Entered: 10/15/2009)
Remark: Copy of Receipt # 1091 mailed to Prison Business Office, James T. Vaughn Corr. Center. (fms) (Entered: 10/15/2009)
140 MANDATE of USCA as to 133 Notice of Appeal (Third Circuit) filed by Robert W. Jackson, III, 134 Notice of Cross Appeal (Third Circuit), Notice of Cross Appeal (Third Circuit) filed by Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Thomas L. Carroll, Paul Howard, Carl C. Danberg. USCA Decision: Affirmed. (Attachments: # 1 Mandate Letter, # 2 Opinion)(tk, ) (Entered: 03/31/2010)
141 Information on Post Decision Matters from the U.S. Court of Appeals: petition for writ of ceriorari denied 10/12/2010 (lid) (Entered: 10/13/2010)

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 17 of 19

06/27/2011
06/27/2011 06/29/2011 07/08/2011
07/08/2011 07/11/2011
07/12/2011
07/12/2011 07/12/2011 07/13/2011 07/15/2011 07/15/2011

142 MOTION to Alter Judgment Plaintiffs' Motion for Relief from Judgment Pursuant to Fed.R.Civ.P. 60b − filed by Robert W. Jackson, III. (Attachments: # 1 Exhibit Index to Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit)(Wiseman, Michael) (Entered: 06/27/2011)
143 MOTION to Appoint Counsel Motion to Apponint Co−Counsel for Class − filed by Robert W. Jackson, III. (Attachments: # 1 Text of Proposed Order)(Wiseman, Michael) (Entered: 06/27/2011)
144 STATUS REPORT by Robert W. Jackson, III. (Wiseman, Michael) (Entered: 06/29/2011)
145 RESPONSE to Motion re 142 MOTION to Alter Judgment Plaintiffs' Motion for Relief from Judgment Pursuant to Fed.R.Civ.P. 60b filed by Thomas L. Carroll, Carl C. Danberg, Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr. (Attachments: # 1 Exhibit Exhibit A − Transcript of Deposition of Mark Dershwitz, M.D., Ph.D. (Nov. 8, 2010) in Pavatt v. Jones, W.D. Okla., C.A. No. CIV−10−141−F, # 2 Exhibit Exhibit B − Balnkenship v. Owens, No. 2011 CV 202236, Order Denying Emergency Motion for Equitable Relief (Ga. Super. Ct. June 22, 2011), # 3 Certificate of Compliance Certificate of Service)(McFarlan, Elizabeth) (Entered: 07/08/2011)
146 RESPONSE to Motion re 143 MOTION to Appoint Counsel Motion to Apponint Co−Counsel for Class filed by Thomas L. Carroll, Carl C. Danberg, Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr. (McFarlan, Elizabeth) (Entered: 07/08/2011)
147 ORDER denying 143 MOTION to Appoint Counsel Motion to Appoint Co−Counsel for Class. ORDER, Setting Hearings( An Oral Argument (re: 142 MOTION to Alter Judgment Plaintiffs' Motion for Relief from Judgment Pursuant to Fed.R.Civ.P. 60b) is set for 7/27/2011 at 10:00 AM in Courtroom 4B before Judge Sue L. Robinson.) IT IS FURTHER ORDERED that plaintiff Jackson's execution shall be stayed until further order of the court. Signed by Judge Sue L. Robinson on 7/11/2011. (nmf) (Entered: 07/11/2011)
148 AMENDED ORDER re 147 denying 143 MOTION to Appoint Counsel Motion to Appoint Co−Counsel for Class. ORDER, Setting Hearings( An Oral Argument (re: 142 MOTION to Alter Judgment Plaintiffs' Motion for Relief from Judgment Pursuant to Fed.R.Civ.P. 60b) is set for 7/27/2011 at 10:00 AM in Courtroom 4B before Judge Sue L. Robinson.) IT IS FURTHER ORDERED that plaintiff Jackson's execution shall be stayed until further order of the court. *In this regard, the court will not issue a decision before the scheduled execution date of July 29, 2011. Signed by Judge Sue L. Robinson on 7/12/2011. (nmf) (Entered: 07/12/2011)
149 MOTION to Lift Stay re 147 Order, Set Hearings,,,, 148 Order,, − filed by Thomas L. Carroll, Carl C. Danberg, Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr. (McFarlan, Elizabeth) (Entered: 07/12/2011)
150 MOTION for Scheduling Order − filed by Robert W. Jackson, III. (Pulzetti, Maria) (Entered: 07/12/2011)
151 RESPONSE to Motion re 150 MOTION for Scheduling Order filed by Thomas L. Carroll, Carl C. Danberg, Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr. (McFarlan, Elizabeth) (Entered: 07/13/2011)
152 NOTICE of Notice of Service of Discovery by Robert W. Jackson, III (Wiseman, Michael) (Entered: 07/15/2011)
153 NOTICE of Service of Notices of Deposition by Robert W. Jackson, III (Wiseman, Michael) (Entered: 07/15/2011)

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 18 of 19

07/15/2011
07/15/2011 07/15/2011 07/18/2011 07/18/2011 07/18/2011 07/20/2011 07/21/2011 07/22/2011 07/25/2011 07/25/2011
07/26/2011 07/27/2011 07/27/2011 07/27/2011
07/27/2011

154 REPLY BRIEF in Support of Motion for Relief Pursuant to Fed.R.Civ.P. 60 D.I. 142 filed by Robert W. Jackson, III. (Attachments: # 1 Exhibit Index to Exhibits, # 2 Exhibit Waisel Report, # 3 Exhibit Waisel CV, # 4 Exhibit Dershwitz Deposition, # 5 Exhibit Freeman Affidavit, # 6 Exhibit Schulz Affidavit, # 7 Exhibit News Report, # 8 Exhibit Lundbeck Statement)(Wiseman, Michael) Modified on 7/18/2011 (fms). (Entered: 07/15/2011)
155 RESPONSE to Motion re 149 MOTION to Lift Stay re 147 Order, Set Hearings,,,, 148 Order,, MOTION to Lift Stay re 147 Order, Set Hearings,,,, 148 Order,, filed by Robert W. Jackson, III. (Wiseman, Michael) (Entered: 07/15/2011)
156 MOTION to Stay Execution − filed by Robert W. Jackson, III. (Attachments: # 1 Text of Proposed Order)(Wiseman, Michael) (Entered: 07/15/2011)
157 NOTICE OF INTERLOCUTORY APPEAL of 147 Order, Set Hearings,,,, 148 Order,,. Appeal filed by Carl C. Danberg. (Wallace, Paul) (Entered: 07/18/2011)
CORRECTING ENTRY: D.I. 154 (Reply Brief) has been linked to D.I. 142 (Motion) as it was not linked to the motion it supports when docketed. (fms) (Entered: 07/18/2011)
USCA Appeal Fees received: $ 455, receipt number #11375 re 157 Notice of Interlocutory Appeal (Third Circuit) filed by Carl C. Danberg. (lid) (Entered: 07/18/2011)
158 NOTICE of Third Circuit Filing by Robert W. Jackson, III (Attachments: # 1 Exhibit Plaintiffs Response to Defendants Motion to Dissolve Stay, Filed in Court of Appeals)(Wiseman, Michael) (Entered: 07/20/2011)
159 MANDATE of USCA as to 157 Notice of Interlocutory Appeal (Third Circuit) filed by Carl C. Danberg. USCA Decision: vacating and remanding. SEE DOCUMENT FOR FULL TEXT. (Attachments: # 1 letter)(sc, ) (Entered: 07/21/2011)
160 RESPONSE to Motion re 156 MOTION to Stay Execution filed by Thomas L. Carroll, Carl C. Danberg, Paul Howard, Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution, Stanley W. Taylor, Jr. (Attachments: # 1 Exhibit, # 2 Exhibit)(Wallace, Paul) (Entered: 07/22/2011)
Reset Hearings: The Oral Argument is re−set for 7/27/2011 at 09:00 AM in Courtroom 4B before Judge Sue L. Robinson. (nmf) (Entered: 07/25/2011)
161 REPLY BRIEF re 156 MOTION to Stay Execution filed by Robert W. Jackson, III. (Attachments: # 1 Exhibit Index to Exhibits, # 2 Exhibit Blankenship Transcript, # 3 Exhibit Blankenship Witness List, # 4 Exhibit Associated Press, # 5 Exhibit Blankenship, # 6 Exhibit Ledbetter, # 7 Exhibit Waisel, # 8 Exhibit Henthorn, # 9 Exhibit Lundbeck, # 10 Exhibit Brophy, # 11 Exhibit FOIA Request, # 12 Exhibit FOIA Response)(Wiseman, Michael) (Entered: 07/25/2011)
162 NOTICE of Supplemental Authority by Robert W. Jackson, III (Attachments: # 1 Exhibit Order in Valle v. State)(Wiseman, Michael) (Entered: 07/26/2011)
Minute Entry for proceedings held before Judge Sue L. Robinson − Oral Argument held on 7/27/2011. (Court Reporter V. Gunning.) (nmf) (Entered: 07/27/2011)
163 Proposed Findings of Fact by Robert W. Jackson, III. (Wiseman, Michael) (Entered: 07/27/2011)
164 Official Transcript of hearing held on July 27, 2011 before Judge Robinson. Court Reporter/Transcriber Valerie Gunning,Telephone number (302) 573−6194. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/17/2011. Redacted Transcript Deadline set for 8/29/2011. Release of Transcript Restriction set for 10/25/2011. (vjg) (Entered: 07/27/2011)
165 NOTICE of Related proceeding by Robert W. Jackson, III (Attachments: # 1 Exhibit Delaware Supreme Court Order)(Pulzetti, Maria) (Entered: 07/27/2011)

Case: 1:06-cv-00300-SLR As of: 02/15/2012 10:46 PM EST 19 of 19

07/27/2011
07/27/2011 07/27/2011
07/28/2011 11/17/2011

166 MEMORANDUM ORDER denying 156 MOTION to Stay Execution filed by Robert W. Jackson, III; denying 142 MOTION to Alter Judgment Plaintiffs' Motion for Relief from Judgment Pursuant to Fed.R.Civ.P. 60b filed by Robert W. Jackson, III. Signed by Judge Sue L. Robinson on 7/27/2011. (nmf) (Entered: 07/27/2011)
167 NOTICE OF APPEAL of 166 Memorandum and Order,, Terminated Case,,,. Appeal filed by Robert W. Jackson, III. (Wiseman, Michael) (Entered: 07/27/2011)
168 NOTICE of Docketing Record on Appeal from USCA for the Third Circuit re 167 Notice of Appeal (Third Circuit) filed by Robert W. Jackson, III. USCA Case Number 11−9002. USCA Case Manager: Dana Moore (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF) (dm, ) (Entered: 07/28/2011)
169 USCA Order Terminating Appeal as to 167 Notice of Appeal (Third Circuit) filed by Robert W. Jackson, III. USCA Decision: USDC Judgment Affirmed. (dm, ) (Entered: 07/28/2011)
170 MANDATE of USCA as to 167 Notice of Appeal (Third Circuit) filed by Robert W. Jackson, III. USCA Decision: USDC Decision Affirmed. (Attachments: # 1 Letter to D.C. Clerk, # 2 Opinion)(dm, ) (Entered: 11/17/2011)

 
 PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 09-1925 and 09-2052
ROBERT W. JACKSON, III
v.
CARL C. DANBERG, Commissioner, Delaware Department of Correction; THOMAS L. CARROLL, Warden,
Delaware Correctional Center; BUREAU CHIEF PAUL HOWARD,
Delaware Bureau of Prisons; OTHER UNKNOWN STATE ACTORS RESPONSIBLE FOR AND PARTICIPATING IN THE CARRYING OUT OF PLAINTIFF’S EXECUTION, All in their Individual and Official Capacities
Robert W. Jackson, III, individually and on behalf of the Certified Class,
Appellant
On Appeal from the United States District Court for the District of Delaware

(D.C. No. 06-cv-00300) District Judge: Honorable Sue L. Robinson
Argued December 16, 2009 Before: FISHER, HARDIMAN and VAN ANTWERPEN, Circuit Judges.
(Filed: February 1, 2010)
Helen A. Marino Maria K. Pulzetti Michael Wiseman (Argued) Defender Association of Philadelphia Federal Capital Habeas Corpus Unit The Curtis Center, Suite 545 West Independence Square West Philadelphia, PA 19106
Attorneys for Appellants
Elizabeth R. McFarlan Loren C. Meyers Marc P. Niedzielski (Argued) Gregory E. Smith Department of Justice 820 North French Street Carvel Office Building, 7th Floor Wilmington, DE 19801
Attorneys for Appellees
2

OPINION OF THE COURT
FISHER, Circuit Judge.
This appeal, brought by a class of inmates sentenced to death by the State of Delaware, presents two main questions for our review. First, we must decide how to interpret the Supreme Court’s highly splintered opinion in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008), which upheld Kentucky’s lethal injection protocol against a challenge under the Eighth Amendment of the Constitution. The second question, whose resolution is largely dependent on the outcome of the first, is whether the lethal injection method employed by Delaware violates the Eighth Amendment. We conclude that, under Baze, an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and that, based on the record before us, Delaware’s protocol presents no such risk. Accordingly, we will affirm the District Court’s grant of summary judgment for Delaware and dissolve the District Court’s stay.
3

I.
A. Facts1
Delaware, like the great majority of the more than thirty states that currently allow capital punishment, see Baze, 128 S. Ct. at 1527 n.1, requires that executions be carried out by lethal injection. DEL. CODE ANN. tit. 11, § 4209(f) (2006 Supp.).2 The statute requiring execution by lethal injection does not mandate the use of any particular drug or drugs, but does specify that “[p]unishment of death shall . . . be inflicted by intravenous [(“IV”)] injection of a substance or substances in a lethal quantity sufficient to cause death and until such person sentenced to death is dead[.]” Id. The statute requires the Commissioner of the Delaware Department of Correction to devise procedures governing executions and to supervise executions. See id.
1Because this is an appeal from the grant of summary judgment, we view the evidence in a light most favorable to the class of death row inmates challenging Delaware’s execution protocol, the nonmoving party. See Fagan v. City of Vineland, 22 F.3d 1296, 1299 (3d Cir. 1994) (en banc).
2Delaware law provides that if its lethal injection protocol is held unconstitutional, executions must be carried out by hanging. DEL. CODE ANN. tit. 11, § 4209(f). Previously, Delaware permitted inmates to select whether they wished to be executed by lethal injection or hanging.
4

Pursuant to the authority granted by the Delaware statute, the Commissioner has devised a protocol for use during executions. The protocol has been amended several times over many years. Delaware carried out its first execution by lethal injection in 1992 under one such protocol. That protocol, like the current version, calls for the sequential IV injection of three chemicals into an inmate’s bloodstream. The first chemical is sodium thiopental, which renders the inmate unconscious by inducing a coma. The second chemical is pancuronium bromide, a muscle relaxant that essentially paralyzes the inmate. Finally, the inmate’s heart is stopped by an injection of potassium chloride.
Since 1992, Delaware has carried out a total of thirteen executions by lethal injection under its variably amended protocols. The execution teams involved in those executions have not always followed those protocols to the letter. In some instances, for example, the execution teams failed to administer the correct chemical dosage into the inmate’s bloodstream. In other instances, the execution teams did not attend the requisite number of training sessions or verify that the equipment used during the executions was fully operational. Furthermore, Delaware officials have not consistently followed up with execution teams to determine whether a particular execution proceeded in accordance with the protocol or whether improvements in the protocol or its implementation were in order.
On August 29, 2008, Delaware instituted a new lethal injection protocol. Under the new protocol, the Commissioner and the Warden of the Delaware Correctional Center are
5

designated as members of the execution team. The Warden selects the remaining team members from Department of Correction personnel based on a number of criteria, including length of service, ability to maintain confidentiality, maturity, willingness to participate, work performance, professionalism, staff recommendations, and review of personnel files. At least two members of the execution team are designated as members of the IV team, which may also include various specialists with at least one year of professional experience.3 Members of the execution team are required to read the relevant portion of the protocol pertaining to their particular function and to rehearse the protocol at least three times within ninety days of a scheduled execution.
Under Delaware law, an inmate’s execution is scheduled by a state trial court and must take place between the hours of 12:01 a.m. and 3:00 a.m. See DEL. CODE ANN. tit. 11, § 4209(f). No more than ten witnesses are permitted to attend an execution, including one adult member of the immediate family of the victim. See id.
Once an inmate’s execution is scheduled, the new protocol calls for an individual designated by the Warden, approximately three hours before the execution, to transport the chemicals from a locked refrigerator to an “injection room,” where the IV team prepares the syringes. Members of a “tie-
3Those specialists include a certified medical assistant, a phlebotomist, an emergency medical technician, a paramedic, and a military corpsman.
6

down” team strap the inmate to a gurney in the execution chamber. After the tie-down team has exited the chamber, the IV team enters the chamber and verifies that the inmate’s blood flow is not overly restricted by the gurney straps. The IV team then inserts a primary IV line and a backup IV line. If both the primary and backup lines cannot be established within one hour, the Commissioner must contact the Governor of Delaware and request that the execution be postponed. If the lines are established, the Warden signals to the IV team to administer the three-drug sequence. After the delivery of the sodium thiopental and a saline solution, the IV team must wait two minutes and check the inmate’s consciousness. During this time, the curtain to the execution chamber is kept closed. The Warden calls the inmate’s name out loud to observe any reaction from the inmate. At the same time, a member of the IV team assesses the inmate’s consciousness by touching the inmate, shaking his shoulder, and brushing his eyelashes. If the inmate appears to be unconscious, the curtain is reopened and the Warden signals for the pancuronium bromide to be administered, followed by the potassium chloride. After two minutes have passed, if the inmate does not appear to be unconscious, the Warden must direct the IV team to discontinue use of the primary IV line and to resort to the backup IV line, beginning with a new injection of sodium thiopental. Following the injection of all three chemicals, the IV team signals the Warden that the process is complete. One of the IV team members then begins a stopwatch. If, after ten minutes, a heart monitor connected to the inmate does not indicate a flat line and a doctor is unable to pronounce the inmate dead, the Warden must order a new round of delivery of the three chemicals. The protocol calls for the process to continue until the inmate is declared dead.
7

To date, no inmate has been executed under Delaware’s current lethal injection protocol.
B. Procedural History
In May 2006, Robert W. Jackson, III4 initiated this lawsuit by filing a complaint in the United States District Court for the District of Delaware against various known and unknown Delaware officials (collectively referred to in this opinion as “Delaware”).5 Jackson asserted a claim under 42 U.S.C. § 1983,6 alleging that Delaware’s then-effective lethal
4Jackson was convicted and sentenced to death for the 1992 murder of Elizabeth Girardi. See Jackson v. State, 684 A.2d 745 (Del. 1996); Jackson v. State, 643 A.2d 1360 (Del. 1994).
5The complaint named the following defendants: Stanley W. Taylor, Jr., Commissioner, Delaware Department of Correction; Thomas L. Carroll, Warden, Delaware Correctional Center; Paul Howard, Bureau Chief, Delaware Bureau of Prisons; and other unknown Delaware officials. In February 2007, the District Court substituted Taylor with his successor, Carl C. Danberg.
642 U.S.C. § 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
8

injection protocol violated his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the Constitution. He sought temporary and permanent injunctive relief to prevent his execution by lethal injection until Delaware’s protocol was brought into conformity with constitutional standards. Within days of filing his complaint, Jackson moved for a preliminary injunction to prevent his execution, which was then scheduled for May 19, 2006. The District Court granted that motion and stayed Jackson’s execution. Thereafter, on Jackson’s motion the District Court certified Jackson’s proposed class of Delaware death row inmates (collectively referred to in this opinion as the “Plaintiffs”) and appointed class counsel.
In September 2007, the District Court postponed a thenimpending trial date in light of the Supreme Court’s grant of the petition for a writ of certiorari in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008). In August 2008, after Baze was decided, Delaware notified the District Court that it had revised its lethal injection protocol. In December 2008, Delaware moved for summary judgment, essentially arguing that its new protocol was substantially similar to the one Baze found constitutional. The District Court held a hearing on the motion and, in March 2009,
subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured[.]
9

granted it in full. Jackson v. Danberg, 601 F. Supp. 2d 589 (D. Del. 2009). In its ruling, the District Court saw its inquiry as twofold: first, whether the Plaintiffs could show that Delaware would likely fail to comply with its new protocol given its historical noncompliance with its old protocol; and second, assuming an affirmative answer to the first inquiry, whether the Plaintiffs could show that Delaware’s history of noncompliance presented an objectively intolerable risk of harm in the future. As to the first inquiry, the District Court declined what it perceived as the Plaintiffs’ invitation to “assume that future conduct by different personnel under a new lethal injection protocol in a different legal environment will reflect past conduct by former personnel under a now rejected protocol.” Id. at 598. In the Court’s view, the Plaintiffs’ theory would require a finding that “the new protocol is simply too complicated for a State to carry out . . . or that Delaware’s personnel will intentionally ignore the requirements of the new protocol in order to intentionally cause undue pain and suffering.” Id. The District Court concluded that Baze foreclosed the former proposition and that the record did not support either proposition. The Court further found that, even assuming the Plaintiffs’ evidence regarding future harm had record support, such harm did not raise constitutional concerns. The Court explained that the only evidence the Plaintiffs had proffered in this regard related to the November 2005 execution of Brian Steckel. Steckel’s execution had been prolonged by the slow delivery of sodium thiopental into his bloodstream, the District Court wrote, but that fact alone did not provide a sufficient basis for concluding that there was a “substantial risk of an inadequate dose of sodium thiopental under the new protocol.” Id. at 599. Given this evidentiary deficiency, the Court held that the
10

Plaintiffs had failed to show that “any maladministration of the new protocol [was] very likely to pose an objectively intolerable risk of harm.’” Id. (quoting Baze, 128 S. Ct. at 1531) (internal quotation marks and footnote omitted). Accordingly, the District Court found that there were no genuine questions of material fact in dispute and granted summary judgment for Delaware. The Court, apparently acting sua sponte, simultaneously ordered its May 2006 stay of Jackson’s execution to remain in effect pending appeal.7
The Plaintiffs have timely appealed the District Court’s grant of summary judgment for Delaware. Delaware has timely appealed the District Court’s stay pending appeal.8
7Of course, no party had filed a notice of appeal at the time of the District Court’s ruling. The District Court evidently presumed – correctly, as it turned out – that an appeal was forthcoming.
8Following the docketing of the parties’ respective appeals, the Plaintiffs moved to remand for the District Court to reconsider its summary judgment ruling or, in the alternative, for additional fact-finding and supplemental briefing to be submitted to this Court. Delaware moved to strike that request. This Court granted the Plaintiffs’ motion insofar as it sought permission to file supplemental briefs and denied Delaware’s motion to strike as moot. Both parties have filed supplemental briefs.
11

II.
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the purely legal question of how a Supreme Court decision is to be interpreted. See Kadelski v. Sullivan, 30 F.3d 399, 400 (3d Cir. 1994). We exercise plenary review over the District Court’s grant of summary judgment. See Alexander v. Nat’l Fire Ins. of Hartford, 454 F.3d 214, 219 n.4 (3d Cir. 2006); KingVision Pay-Per-View, Corp. v. 898 Belmont, Inc., 366 F.3d 217, 220 (3d Cir. 2004). To that end, we are “required to apply the same test the district court should have utilized initially.” Oritani Sav. & Loan Ass’n v. Fidelity & Deposit Co. of Md., 989 F.2d 635, 637 (3d Cir. 1993) (quotation marks and citation omitted). Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether such relief is warranted, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. We review a district court’s decision to grant a stay pending appeal for abuse of discretion. See, e.g., Republic of Phil. v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 1991).
12

III.
A. The Meaning of Baze
The Eighth Amendment, which applies to the states by virtue of the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII; see Baze, 128 S. Ct. at 1529. In Baze, the petitioners challenged Kentucky’s lethal injection protocol under the Eighth Amendment. Conceding that Kentucky’s protocol would pass constitutional scrutiny if implemented as intended, they based their challenge on the risk that they would suffer significant pain if the protocol were not fully observed. Kentucky’s protocol, like Delaware’s current protocol, calls for the sequential injection of sodium thiopental, pancuronium bromide, and potassium chloride. A state trial court held a several-day bench trial, during which it heard from approximately twenty witnesses, and concluded that there was minimal risk that the protocol would be maladministered. The Kentucky Supreme Court affirmed.
The United States Supreme Court granted certiorari and likewise affirmed. Chief Justice Roberts authored the plurality opinion, which Justice Kennedy and Justice Alito joined. Beginning from the premise – which neither party disputed – that capital punishment is constitutional, the plurality rejected the petitioners’ argument that Kentucky should adopt a onedrug, instead of a three-drug, protocol and their accompanying invitation to adopt an “unnecessary risk” standard in adjudicating Eighth Amendment claims. Id. at 1532. Instead, the plurality held that to prevail on such a claim an inmate must
13

show that there is “a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’” Id. at 1531 (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 & n.9 (1994)). Recognizing that “[s]ome risk of pain is inherent in any method of execution – no matter how humane – if only from the prospect of error in following the required procedure[,]” the plurality explained that “subjecting individuals to a risk of future harm . . . can qualify as cruel and unusual punishment.” Id. at 1529-30. To prevail on a claim that the exposure to such risk runs afoul of the Constitution, an inmate must demonstrate that “the conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” Id. at 1530-31 (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)). An inmate falls short of that burden by showing only that “an execution method may result in pain, either by accident or as an inescapable consequence of death[.]” Id. at 1531.
The plurality was unpersuaded by the petitioners’ contention that Kentucky should adopt a one-drug protocol because of the risk that the first drug in the three-drug protocol might be maladministered. See id. at 1533. While acknowledging that, “failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride[,]” id., the plurality nevertheless wrote that “a condemned prisoner cannot successfully challenge a State’s method of execution merely by
14

showing a slightly or marginally safer alternative.” Id. at 1531. The plurality explained that “[p]ermitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining ‘best practices’ for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology” and “would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures – a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death.” Id. (citation omitted). The plurality did not categorically preclude an inmate from proving an Eighth Amendment violation in light of a safer alternative, but it did impose a heavy burden on an inmate seeking to make such a showing. Specifically, in the words of the plurality, the inmate’s
proffered alternatives must effectively address a “substantial risk of serious harm.” To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment.
Id. at 1532 (internal citation and footnote omitted).
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Applying these principles to the facts before it, the plurality found that the petitioners had failed to establish that there was a substantial risk of maladministration of Kentucky’s protocol. The plurality saw no clear error in the trial court’s determination that mixing the drugs was relatively uncomplicated and pointed to the protocol’s various safeguards ensuring an adequate delivery of sodium thiopental. Specifically, the Court highlighted the protocol’s requirements that IV team members have at least one year of professional experience; that execution team members participate in at least ten yearly practice sessions; and that the warden and deputy warden be present in the execution chamber to watch for signs of IV problems. See id. at 1533-34. In light of these safeguards, the plurality concluded that “the risks identified by petitioners are [not] so substantial or imminent as to amount to an Eighth Amendment violation.” Id. at 1534.
Finally, the plurality responded to the suggestion of Justice Stevens, who concurred in the judgment, that the plurality opinion would “leave[] the disposition of other cases uncertain,” by explaining as follows:
A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the
16

protocol we uphold today would not create a risk that meets this standard.
Id. at 1537 (emphasis added).9
In his concurrence in the judgment, Justice Stevens, in addition to raising the abovementioned concern that the plurality found ungrounded, questioned the utility of pancuronium bromide in three-drug protocols, given the risk that “the inmate will suffer excruciating pain before death occurs[,]” id. at 1543 (Stevens, J., concurring in the judgment), and suggested that states consider eliminating it from their protocols. Id. at 1546 (Stevens, J., concurring in the judgment). Justice Stevens stated his understanding that the death penalty is constitutional as a general matter in light of the Court’s precedents and determined that the petitioners had failed to meet their burden of showing
9While he joined in the plurality opinion, Justice Alito also concurred separately “to explain . . . how the holding should be implemented.” Baze, 128 S. Ct. at 1538 (Alito, J., concurring). He wrote that because ethical considerations prohibit the participation of certain medical professionals in executions, “a suggested modification of a lethal injection protocol cannot be regarded as ‘feasible’ or ‘readily’ available if the modification would require participation – either in carrying out the execution or in training those who carry out the execution – by persons whose professional ethics rules or traditions impede their participation.” Id. at 1540 (Alito, J., concurring). In this case, the Plaintiffs have suggested no such modification to Delaware’s protocol.
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that Kentucky’s protocol was unconstitutional under those precedents, whether interpreted by the plurality or the dissent. Id. at 1552 (Stevens., J., concurring in the judgment). However, he also “relied on [his] own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” Id. at 1551 (Stevens, J., concurring in the judgment) (internal quotation marks omitted).10
Justice Thomas, with whom Justice Scalia joined, concurred in the judgment, and thought Baze “an easy case.” Id. at 1563 (Thomas, J., concurring in the judgment). In his view, the plurality’s standard was both unsupported by Eighth Amendment jurisprudence and amorphous, rendering it difficult for lower courts to apply. See id. at 1556, 1561-62 (Thomas, J., concurring in the judgment). According to Justice Thomas, the relevant inquiry in an Eighth Amendment challenge is whether the challenged method of execution is designed to inflict pain. See id. at 1563 (Thomas, J., concurring in the judgment). “Because Kentucky’s lethal injection protocol is designed to eliminate pain rather than to inflict it,” Justice Thomas wrote,
10Justice Scalia, who joined in Justice Thomas’ concurrence in the judgment, wrote separately, in a concurrence in the judgment in which Justice Thomas joined, to respond to Justice Stevens’ personal repudiation of capital punishment. See Baze, 128 S. Ct. at 1552-56 (Scalia, J., concurring in the judgment).
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the “petitioners’ challenge must fail.” Id. (Thomas, J., concurring in the judgment).
Justice Breyer concurred in the judgment as well. He agreed with Justice Ginsburg’s dissenting opinion that a court should evaluate several factors to determine the constitutionality of a state’s execution protocol, but thought that “the legal merits of the kind of claim presented must inevitably turn not so much upon the wording of an intermediate standard of review as upon facts and evidence.” Id. (Breyer, J., concurring in the judgment). Based on both “the record in this case [and] . . . the literature on the subject,” Justice Breyer could not find “sufficient evidence that Kentucky’s execution method poses the significant and unnecessary risk of inflicting severe pain that petitioners assert.” Id. 1563-64 (Breyer, J., concurring in the judgment) (internal quotation marks and record citation omitted).
Finally, Justice Ginsburg, with whom Justice Souter joined, dissented. In Justice Ginsburg’s view, “[t]he constitutionality of Kentucky’s protocol . . . turn[ed] on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental.” Id. at 1567 (Ginsburg, J., dissenting). She agreed with the plurality that “the degree of risk, magnitude of pain, and availability of alternatives must be considered,” but concluded that these factors “are interrelated [such that] a strong showing on one reduces the importance of the others.” Id. at 1568 (Ginsburg, J., dissenting). The “critical question,” according to Justice Ginsburg, “is whether a feasible alternative exists.” Id. at 1569 (Ginsburg, J., dissenting). Contrasting the relatively deficient safeguards in Kentucky’s
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protocol with the greater safeguards included in other states’ protocols, Justice Ginsburg would have remanded “with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentucky’s protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.” Id. at 1572 (Ginsburg, J., dissenting).
To summarize, the plurality announced a standard governing challenges to lethal injection protocols in line with select strains of the Court’s conditions-of-confinement Eighth Amendment jurisprudence. Justices Stevens and Justice Breyer found simply that the petitioners had failed to meet their burden on the facts of this particular case, but for different reasons. And Justice Thomas, joined by Justice Scalia, concluded that the Eighth Amendment only prohibits deliberate efforts to inflict pain. Finally, Justice Ginsburg, joined by Justice Souter, adopted an “untoward, readily avoidable risk” test for assessing method-of-execution challenges. Id. at 1567 (Ginsburg, J., dissenting).
Ordinarily, we apply the standard or standards endorsed by a majority of Justices when interpreting Supreme Court precedent. See Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 693 (3d Cir. 1991) (“In a run-of-the-mill case where a majority of the Justices endorse a single legal standard, lower courts simply follow that standard.” (internal citation omitted)), modified on other grounds, 505 U.S. 833 (1992). As our discussion above demonstrates, Baze is not an ordinary case. Unlike most Supreme Court decisions, Baze is highly fractured.
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As a result, we must identify the Court’s holding by employing the framework set out in Marks v. United States, 430 U.S. 188
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(1977).11 See, e.g., Am. Civil Liberties Union of N.J. v.
11Some courts have assumed, with little or no explicit analysis, that the plurality opinion in Baze announced the holding of the Court and thus that the plurality’s interpretation of the Eighth Amendment is binding on lower courts. See, e.g., Harbison v. Little, 571 F.3d 531, 535 (6th Cir. 2009) (“Chief Justice Roberts’s plurality opinion is controlling.”); Clemons v. Crawford, 585 F.3d 1119, 1125-26 (8th Cir. 2009) (analyzing the plurality opinion as the Court’s holding); Emmett v. Johnson, 532 F.3d 291, 298-99 (4th Cir. 2008) (same); but see Cooey v. Strickland, 610 F. Supp. 2d 853, 919 (S.D. Ohio 2009) (“Absent a controlling rationale set forth by a majority of the high court, what can be gleaned from the diverse array of opinions in Baze is debatable.”); Ventura v. State, 2 So. 3d 194, 200 (Fla. 2009) (per curiam) (“[T]here are no reliable means of determining the ‘narrowest grounds’ presented in Baze because three blocks of Justices provided three separate standards for determining the constitutionality of a mode of execution.”). The parties in this case apparently agree that the Baze plurality controls, and have not briefed the issue. We certainly understand the allure of such an approach, as it ensures that one readily identifiable set of standards governs the outcome here. Significantly, however, that approach ignores the fact that “[a] plurality opinion does not . . . essentially differ in character from either a concurring opinion or a dissenting opinion. Those joining in a plurality opinion may speak with authority accorded wise men, but their voices do not carry the authority of the Supreme Court as an institution.” Rappa v. New Castle County, 18 F.3d 1043, 1058 n.21 (3d Cir. 1994) (quotation omitted). Furthermore, we are
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Schundler, 168 F.3d 92, 103 (3d Cir. 1999).
In Marks v. United States, the Supreme Court instructed that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds[.]” 430 U.S. at 193 (internal quotation marks and citation omitted); see also Planned Parenthood, 947 F.2d at 694 n.7 (“When six or more Justices join in the judgment and they issue three or more opinions, . . . the idea is to locate the opinion of the Justice or Justices who concurred on the narrowest grounds necessary to secure a majority.”). Marks’ “principal objective . . . is to promote predictability in the law by ensuring lower court adherence to Supreme Court precedent.” Planned Parenthood, 947 F.2d at 693. “This objective requires that, whenever possible, there be a single legal standard for the lower courts to apply in similar cases and that this standard, when properly applied, produce results with which a majority of the Justices in the case articulating the standard would agree.” Id. (emphasis added). That objective notwithstanding, Marks applies “only where one opinion can be meaningfully regarded
convinced that a more developed analysis of Baze is warranted under Marks and our precedents. See, e.g., Horn v. Thoratec Corp., 376 F.3d 163, 175-76 (3d Cir. 2004) (analyzing the holding of a splintered opinion); Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161, 169-72 (3d Cir. 1999) (same); Unity Real Estate Co. v. Hudson, 178 F.3d 649, 656-59 (3d Cir. 1999) (same).
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as ‘narrower’ than another and can represent a common denominator of the Court’s reasoning.” Berwind Corp. v. Comm’r of Soc. Sec., 307 F.3d 222, 234 (3d Cir. 2002) (internal quotation marks and citation omitted). “Therefore, ‘in cases where approaches differ, no particular standard is binding on an inferior court because none has received the support of a majority of the Supreme Court.’” Id. (quoting Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161, 170 (3d Cir. 1999)).
Both the Supreme Court and this Court have recognized the difficulty of applying Marks under certain circumstances. See Grutter v. Bollinger, 539 U.S. 306, 325 (2003); Nichols v. United States, 511 U.S. 738, 745 (1994) (“This test is more easily stated than applied[.]”); Horn v. Thoratec Corp., 376 F.3d 163, 175 (3d Cir. 2004) (“Splintered opinions by the Supreme Court often result in some confusion as to which opinion or rationale is binding on the lower federal courts.”); Unity Real Estate Co. v. Hudson, 178 F.3d 649, 658 (3d Cir. 1999) (“The splintered nature of the Court makes it difficult to distill a guiding principle[.]”); Rappa v. New Castle County, 18 F.3d 1043, 1057 (3d Cir. 1994) (“[I]t is not always possible to discover a single standard that legitimately constitutes the narrowest ground for the decision.”). Indeed, in Nichols the Supreme Court found it “not useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it.” 511 U.S. at 745-46.
To understand how Marks works here, we find it useful to consider the genesis of the framework Marks constructed.
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Marks came to the Supreme Court following the petitioners’ convictions under a statute prohibiting the transportation of obscene materials in interstate commerce. The petitioners had argued in the district court that the jury instructions regarding what constitutes obscenity should be derived from the Court’s decision in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413 (1966) (“Memoirs”). The district court disagreed and instructed the jury in line with the Court’s decision in Miller v. California, 413 U.S. 15 (1973), which was decided after the conduct giving rise to the petitioners’ prosecutions but before trial began.12 Although the main question presented in Marks was whether the standards in Miller could be applied retroactively in a criminal prosecution under the Ex Post Facto Clause of the Constitution, the Court first had to decide whether any of the rules announced in Memoirs, given the Justices’ distinct approaches in that case, supplanted the rule earlier formulated in Roth v. United States, 354 U.S. 476 (1957).
In Roth, a majority of the Justices had established the following test for distinguishing obscenity from protected speech: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Id. at 489. That test differed from the several tests articulated some years later by a highly fractured Memoirs Court. There, the Court vacated a
12The petitioners wanted Memoirs’ standards to govern in their prosecutions because those standards were more favorable to the defense than those announced in Miller.
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conviction under a state obscenity law on First Amendment grounds. The three-Justice plurality found that “[a] book cannot be proscribed unless it is found to be utterly without redeeming social value.” Memoirs, 383 U.S. at 419 (emphasis omitted). Justice Douglas concurred in the judgment, reiterating the position he had taken in Roth that “the First Amendment leaves no power in government over expression of ideas.” Id. at 433 (Douglas, J., concurring in the judgment) (emphasis omitted). Justice Black concurred in the judgment for much the same reason: in his view, no expressive activity could be criminalized under the First Amendment. See id. at 421 (Black, J., concurring in the judgment).13 Finally, Justice Stewart likewise concurred in the judgment, though on the ground that, in his view, only “hardcore pornography” could be criminalized. See id. (Stewart, J., concurring in the judgment).14
The Marks Court reasoned that because Justice Black and Justice Douglas had concurred in the judgment based on their “position that the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity[,]” the plurality’s view “constituted the holding of the Court and provided the governing standards.” Marks, 430 U.S. at 193-94.
13Justice Black wrote nothing new in Memoirs. Instead, he referred to his dissenting opinion in Mishkin v. New York, 383 U.S. 502 (1966).
14Like Justice Black, Justice Stewart referred to his dissenting opinion in another case, Ginzburg v. United States, 383 U.S. 463 (1966).
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That was so, the Court reasoned, because any material that could not be criminalized under the plurality’s test perforce could not be criminalized under the absolutist approach of Justice Black and Justice Douglas. Id. In other words, the plurality’s test represented the “narrowest grounds” of the concurring opinions. Thus, the Court concluded that Roth’s test had been replaced by the test of the Memoirs plurality because a majority of the Memoirs Court had declined to follow Roth. Id.
Marks’ “narrowest grounds” language in turn sprang from Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the Court reviewed its decision a few years earlier in Furman v. Georgia, 408 U.S. 238 (1972), where the Justices had declared Georgia’s death penalty statute unconstitutional, though for different reasons. Two Justices had based their decision on their view that the death penalty is always unconstitutional, while three others had held that the statute was unconstitutional based on the administration of the death penalty in Georgia at that time. Confronted with this circumstance, the Gregg Court concluded that “[s]ince five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Gregg, 428 U.S. at 169 n.15. The “narrowest grounds” in that case meant the opinions of the three Justices who did not subscribe to an absolute proscription of capital punishment.
For purposes of this appeal, the salient takeaway from Marks and Gregg, and the cases they examined, is that the Marks framework applies where one opinion is clearly “narrower” than another, that is, where one opinion would
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always lead to the same result that a broader opinion would reach. The controlling opinion in Memoirs, for instance, was the plurality opinion because that opinion would find material constitutionally protected in every instance in which Justices Black and Douglas would so find. Similarly, the noncontrolling concurring opinions in Furman would strike down death penalty statutes as unconstitutional in all cases, while the controlling concurring opinions would do so in only a subset of those cases. The scenarios presented in Marks and Furman strongly resemble the one we confront here. The plurality standard in Baze would find some lethal injection protocols unconstitutional and others constitutional, while Justice Thomas and Justice Scalia would find any lethal injection protocol constitutional unless it were deliberately designed to inflict pain. Put another way, the plurality is controlling when combined with Justice Thomas’ concurrence in the judgment because any lethal injection protocol constitutionally acceptable to the plurality would invariably pass Justice Thomas’ per se rule.15
15Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994), does not compel a contrary conclusion. There, we declined to extract a binding rule from Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), because “the plurality and the concurrence took such markedly different approaches to [deciding whether a city ordinance violated the First Amendment] that there is no common denominator between them.” Rappa, 18 F.3d at 1058. Metromedia produced five separate opinions and involved factual and legal circumstances quite distinguishable from those we face here.
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The plurality opinion is clearly “narrower” than Justice Thomas’s concurrence in the judgment. Accordingly, we hold that the plurality opinion in Baze controls Eighth Amendment method-of-execution challenges.
B. The Grant of Summary Judgment
To survive summary judgment under Baze, the Plaintiffs must point to record evidence from which a reasonable fact finder could infer that Delaware’s protocol does not meet the standards governing the constitutionality of an execution
In a footnote in Rappa, we pointed out that while “it would be possible to predict the outcome in almost every case simply by counting the votes of the Justices[,]” which would “have the advantage of creating some predictability[,] . . . such a system would be unprincipled” because it would not be “rooted in any consistent constitutional values.” Id. at 1060 n.24. Importantly, these statements were mere dicta, and thus lack binding force. See N. Jersey Media Group v. Ashcroft, 308 F.3d 198, 201 (3d Cir. 2002). Indeed, “we give such statements respect consistent with their persuasive value and can, of course, accord dicta as much weight as we deem appropriate.” Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 274 (3d Cir. 2007) (internal citations and quotation marks omitted). While we do not retreat from Rappa’s general admonition concerning the potential problems with simple vote-counting, we do not find it applicable to the circumstances Baze presents.
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protocol as articulated by Chief Justice Roberts in the plurality opinion.16
16The Plaintiffs argue that the District Court erred by applying Baze’s “substantially similar” standard to this case. That is, in their view the District Court impermissibly found Delaware’s protocol constitutional simply because it was substantially similar to Kentucky’s. We disagree that the District Court did no more than apply that standard. But to the extent it did, we do not believe that such an approach is necessarily impermissible. We believe that in addition to establishing the substantial risk standard, Baze also stands for the proposition that Kentucky’s protocol, on its face, did not present a substantial risk of serious harm. Therefore, any protocol substantially similar to Kentucky’s protocol, without more, would survive under the plurality standard. That conclusion finds ample support in the case law. See, e.g., Harbison, 571 F.3d at 536 (Tennessee); Clemons, 585 F.3d at 1126-27 (Missouri); Wellons v. Hall, 554 F.3d 923, 942 (11th Cir. 2009) (Georgia), abrogated on other grounds, Cone v. Bell, 129 S. Ct. 1769 (2009), as recognized in Owen v. Sec’y for Dep’t of Corrs., 568 F.3d 894, 915 n.23 (11th Cir. 2009); Emmett, 532 F.3d at 300 (Virginia); Bennett v. State, 990 So.2d 155, 160-61 (Miss. 2008).
The Plaintiffs also argue that whether a method of execution presents the degree of risk described by Baze turns not only on objective fact, but on whether state officials are deliberately indifferent to that risk. They point out that Baze drew heavily from the Supreme Court’s prior cases involving
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conditions of confinement and Eighth Amendment concerns. To be sure, Baze’s “sure or very likely” and “sufficiently imminent” language was taken from the Court’s decision in Helling v. McKinney, 509 U.S. 25, 33-34 (1993), where the Court held that an inmate could assert an Eighth Amendment claim based on the health risk posed by exposure to second-hand smoke, and explained that “a claim that the conditions of a prisoner’s confinement violate the Eighth Amendment requires an inquiry into the prison officials’ state of mind.” Id. at 32 (citation omitted). Similarly, Baze’s “objectively intolerable risk of harm” language comes from Farmer v. Brennan, 511 U.S. 825, 846 (1994), where the Court built on Helling by holding that “a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
While Baze captured some of the language in Helling and Farmer, importantly, it did not import the “deliberate indifference” language used in those cases. The fact that Baze took such pains to extract certain language from Helling and Farmer suggests that the other standards announced in those cases do not govern Eighth Amendment method-of-execution challenges. That distinction makes sense, as the Supreme Court’s Eighth Amendment conditions-of-confinement cases and method-of-execution cases have separate lineages in the
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Court’s jurisprudence. Cf. Taylor v. Crawford, 487 F.3d 1072, 1080-81 (8th Cir. 2007) (noting the difference between a “conditions-of-confinement claim challenging prison conditions in general,” where a state-of-mind inquiry is obligatory, and cases involving “state-sanctioned punishment”). Furthermore, even a cursory comparison of the different circumstances giving rise to these two types of Eight Amendment challenges bears out why subjective conditions-of-confinement standards do not govern method-of-execution challenges. In Farmer, the Court explained that “[w]hether a prison official had the requisite knowledge of substantial risk is a question of fact subject to demonstration in the usual ways, including . . . [by providing] evidence . . . that the defendant-officials were at the time [the] suit was filed, and are at the time of summary judgment, knowingly and unreasonably disregarding an objectively intolerable risk of harm, and that they will continue to do so[.]” 511 U.S. at 842, 846 (internal quotation marks and citation omitted). The problem with applying such evidentiary standards in method-of-execution cases is that, in cases where a lethal injection protocol is facially constitutional, there can never be a “current” violation in the way there may be, for example, in cases where an inmate is suffering the harmful effects of second-hand smoke or finds himself at risk of physical harm at the hands of dangerous fellow inmates. In short, we see no support for the Plaintiffs’ position that Baze requires the wholesale engraftment of the evidentiary standards articulated in the Supreme Court’s conditions-of-confinement cases onto method-of-execution cases.
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The parties do not dispute that Delaware’s protocol is in all material respects identical to the protocol the Supreme Court found constitutional in Baze. Indeed, when the District Court asked the Plaintiffs to identify any differences between the two protocols, the Plaintiffs acknowledged that they had “not identified any substantive differences between the two protocols as written.” (App. 329 (emphasis in original).) As they did
In any event, to the extent the Plaintiffs maintain that they were denied purportedly vital discovery into Delaware officials’ state of mind, the record suggests otherwise. If the Plaintiffs wanted to show Delaware officials’ deliberate indifference to the risks associated with the state’s lethal injection protocol, the Plaintiffs had only to ask those officials if they were aware of those risks. Nothing in the record intimates that the District Court cut off that line of questioning. To the contrary, the record reflects that the District Court gave the parties relatively wide latitude in crafting their discovery inquiries. Thus, even assuming Helling’s and Farmer’s subjective standards apply to method-of-execution cases, the Plaintiffs have given us no principled explanation for their failure to request the very information to which they now assert an entitlement. In other words, the Plaintiffs cannot now complain about discovery that they did not request in the District Court proceedings and that the District Court, as far as the record reveals, did not preclude them from requesting.
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before the District Court, the Plaintiffs argue on appeal that the focus of judicial inquiry should be not on the two protocols’ written similarities but on extra-protocol elements that, in their view, establish the substantial risk that was found wanting in Baze. Those elements may be fairly divided into three classes: (1) Delaware’s historical noncompliance with its former protocol; (2) the current protocol’s lack of a backup plan; and (3) the existence of an allegedly better, one-drug protocol that has been implemented and used in Ohio. None of the evidence the Plaintiffs have adduced helps them meet their burden under Baze. We address each evidentiary proffer in turn.
1. Evidence of Historical Noncompliance
Evidence of Delaware’s noncompliance with its former protocol exists because of an important distinction between that protocol and the Kentucky protocol at issue in Baze. In Baze, Kentucky had executed but one inmate since its adoption of lethal injection. See 128 S. Ct. at 1528. Delaware, in contrast, has executed thirteen inmates since 1992, albeit under a nowdefunct protocol. In the Plaintiffs’ view, Delaware’s allegedly substandard performance in implementing that protocol creates a genuine question of material fact as to whether Delaware, going forward, will repeat the mistakes of the past.
The Plaintiffs spotlight, for instance, Delaware’s failure on several occasions to administer the correct dosage of potassium chloride. While it is uncontested that an inmate would very likely suffer immeasurable pain if given an injection of potassium chloride without being rendered unconscious by a proper dosage of sodium thiopental, the record is bereft of
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evidence that any of the thirteen inmates Delaware has executed using the three-drug protocol was still conscious when injected with potassium chloride.17 The importance of that evidentiary deficiency cannot be understated, since the constitutionality of Kentucky’s protocol rested on the effective anesthetization of an inmate, as both the plurality and the dissent in Baze recognized. See 128 S. Ct. at 1533 (plurality opinion) (“Th[is] claim hinges on the improper administration of the first drug, sodium thiopental.”); id. at 1567 (Ginsburg, J., dissenting) (“The constitutionality of Kentucky’s protocol . . . turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental.”). There is no evidence to support the proposition, advanced by the Plaintiffs here, that administering to a properly anesthetized inmate a lesser or greater dosage of potassium chloride than called for in a lethal injection protocol presents a substantial risk of serious harm. Indeed, it is undisputed that, if an inmate is properly anesthetized, no such risk can materialize. As a consequence, the Plaintiffs cannot meet their summary judgment burden by relying on examples of Delaware’s maladministration of potassium chloride to an unconscious inmate.
17As discussed in greater detail below, the delivery of sodium thiopental to one of the inmates whom Delaware has executed took longer than planned. Importantly, however, there is no suggestion in the record that the execution team proceeded with the administration of pancuronium bromide or potassium chloride before ensuring that the inmate was unconscious.
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The Plaintiffs also place great weight on Delaware’s execution of Brian Steckel in November 2005. During his execution, Steckel’s primary IV line became infiltrated during the administration of sodium thiopental. Steckel clearly was still conscious when the IV team noticed the problem. After unsuccessful attempts to repair the primary line, the IV team rerouted the sodium thiopental to Steckel’s backup line, thereby prolonging his execution. The Plaintiffs assert that the District Court erroneously credited deposition testimony reflecting that Steckel received the appropriate dosage of sodium thiopental while discounting other evidence indicating that he had not received the appropriate dosage of that drug. According to the Plaintiffs, if “Steckel did not receive an adequate dose of anesthesia, his execution was inhumane, which bears heavily on the likelihood of future maladministration.” (Appellants’ Op. Br. 41-42.)
As discussed above, the proper administration of sodium thiopental is an indispensable link in the lethal injection chain for Eighth Amendment purposes, as it ensures that an inmate will not suffer under the effects of the second two drugs. See Baze, 128 S. Ct. at 1527 (“The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs.” (record citations omitted)). Even assuming that Steckel suffered great pain during his botched execution, however, does not preclude summary judgment for Delaware, as Baze left no room for doubt that a single instance of mistake does not suffice to demonstrate a substantial risk of serious harm. See id. at 1531 (“[A]n isolated mishap alone does not give rise to an Eighth Amendment violation, precisely
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because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a ‘substantial risk of serious harm.’” (citation omitted)); see also, e.g., Cooey v. Strickland, No. 09-4474, 2009 U.S. App. LEXIS 26695, at *31 (6th Cir. Dec. 7, 2009) (“Speculations, or even proof, of medical negligence in the past or in the future are not sufficient to render a facially constitutionally sound protocol unconstitutional.”), reh’g and reh’g en banc denied, 2009 U.S. App. LEXIS 26744 (6th Cir. Dec. 7, 2009), cert. denied and application for stay of execution denied sub nom. Biros v. Strickland, 175 L. Ed. 2d 580 (2009); Clemons v. Crawford, 585 F.3d 1119, 1127 (8th Cir. 2009) (“We reject the prisoners’ attempt to distinguish their case from Baze on the basis of alleged past incompetence on the part of Missouri’s medical personnel.”); Emmett v. Johnson, 532 F.3d 291, 307 (4th Cir. 2008) (“[H]aving reviewed the evidence regarding these [prior] ‘errors’ in the execution process, we believe that these isolated incidents are insufficient to demonstrate a substantial risk of future harm to Emmett necessary to establish an Eighth Amendment violation.”); Schwab v. State, 995 So. 2d 922, 92628 (Fla. 2008) (per curiam) (rejecting an Eighth Amendment challenge to Florida’s lethal injection procedure based in part on examples of past mistakes). Similarly, Baze also made clear that “the Constitution does not demand the avoidance of all risk of pain in carrying out executions” because “[s]ome risk of pain is inherent in any method of execution . . . if only from the prospect of error in following the required procedure.” 128 S. Ct. at 1529 (emphasis added). Clearly, any blunder committed during Steckel’s execution does not suffice to show a substantial risk of serious harm in future executions. Cf. Taylor v. Crawford, 487 F.3d 1072, 1080 (8th Cir. 2007) (“If [a] protocol
37

as written involves no inherent substantial risk of the wanton infliction of pain, any risk that the procedure will not work as designated in the protocol is merely a risk of accident, which is insignificant in our constitutional analysis.” (emphasis added and citation omitted)); Workman v. Bredesen, 486 F.3d 896, 908 (6th Cir. 2007) (“At some level, every execution procedure ever used contains risk that the individual’s death will not be entirely pain free.” (citations omitted)); Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005) (“Obviously, there are risks involved in virtually every method of execution. However, the Supreme Court has rejected Eighth Amendment challenges based on an unforeseeable accident[.]” (internal quotation marks and citations omitted)).
The other evidence of Delaware’s noncompliance with its protocol is likewise unavailing. The Plaintiffs point to Delaware’s failure to maintain written records of the executions; to verify that the equipment used during the executions was in good working order; to undergo the training exercises mandated by the protocol; and to ensure that members of the IV team were shown the portion of the protocol relevant to their responsibilities. (App. 156-60, 169-71, 179.) The Plaintiffs have made no effort, however, to demonstrate how any of these deficiencies, standing either alone or together, poses a substantial risk of serious harm. The Plaintiffs in essence ask us to infer that inmates have experienced pain during previous executions based on Delaware’s admittedly often casual approach to the implementation of certain aspects of its former protocol. That invitation must be declined, as we cannot, in this posture, make inferences based on pure supposition. See Acumed LLC v. Advanced Surgical Servs., 561 F.3d 199, 228
38

(3d Cir. 2009) (“[S]peculation and conjecture may not defeat a motion for summary judgment.” (citation omitted)). Of course, we do not reject the likelihood that an improperly-trained execution team would be more inclined to make a mistake than a well-trained team. It is just as plausible that faulty equipment could upset an otherwise smoothly-run execution. None of these possibilities, however, even obliquely suggest the existence of conditions that are “sure or very likely to cause serious illness and needless suffering” or “give rise to sufficiently imminent dangers.” Baze, 128 S. Ct. at 1531 (internal quotation marks, emphasis and citation omitted).
At their core, the various instances of Delaware’s noncompliance with its former protocol that the Plaintiffs have presented to us in an effort to meet their summary judgment burden are but a string of isolated examples of maladministration. Significantly, Baze explicitly dismissed similar efforts by the petitioners in that case: “The risks of maladministration [the petitioners] have suggested – such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel – cannot remotely be characterized as ‘objectively intolerable.’” 128 S. Ct. at 1537 (emphasis added). The Plaintiffs’ proffer in this vein is materially indistinguishable from that of the Baze petitioners, and thus does not help them meet their burden.
2. Lack of a Backup Plan
The Plaintiffs also maintain that Delaware’s protocol violates the Eighth Amendment because it lacks what the Plaintiffs refer to as a “Plan B.” (Appellants’ Op. Br. 48.)
39

Specifically, they point to the deposition of Delaware’s expert anesthesiologist, who testified that peripheral IV access would be unobtainable in certain cases. That expert further testified that Delaware’s protocol should include a contingency plan in the event the backup IV line cannot be established after an attempt at establishing the primary IV line fails. This argument cannot surmount the wall erected by Baze for at least two reasons. First, there is no evidence that the Kentucky protocol examined in Baze had a contingency plan in place in the event its written protocol could not be put into effect. The absence of such a plan did not prevent seven Members of the Court from giving that protocol a passing grade on the constitutional test. Indeed, the Plaintiffs acknowledge as much in their brief. (See Appellants’ Reply Br. 12 (“[T]he Supreme Court approved Kentucky’s protocol, which does not have such a plan.”).) Second, Baze dictates that the Plaintiffs show not only a substantial risk of serious harm, but also that “the conditions presenting the risk are sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.” 128 S. Ct. at 1530-31 (internal quotation marks and citation omitted). The Plaintiffs’ evidence on this point is practically nonexistent. They assert that they were denied the ability to inquire about what Delaware will do if the backup IV line cannot be established. But there is no indication in the record that the District Court imposed such a limitation. Instead, the District Court barred the Plaintiffs from asking Delaware officials about their motives in adopting a new protocol and their intent to follow it. Clearly, by speculating about what those officials might do in what the record intimates to be the very unlikely hypothetical scenario in which the backup IV line cannot be established, the Plaintiffs have failed
40

to show the degree of imminence Baze requires. Cf. Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 179 n.16 (3d Cir. 2009) (“[S]peculation alone, without more, is insufficient to survive summary judgment.”); Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 333 (3d Cir. 2005) (“Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.” (quotation marks and citation omitted)). Accordingly, like the Baze Court, we conclude that the absence of a backup plan in Delaware’s protocol does not bear on our constitutional calculation.
3. Existence of a One-Drug Protocol
In their supplemental filings, the Plaintiffs ascribe great weight to Ohio’s recent substitution of a three-drug protocol with a one-drug protocol. Ohio made the switch in November 2009 after experiencing what the Sixth Circuit has called “serious and troubling difficulties in executing at least three inmates [under the old protocol.]” Reynolds v. Strickland, 583 F.3d 956, 957 (6th Cir. 2009). The Plaintiffs’ interest in lethal injection developments in Ohio is premised on their apparent belief that evidence of Ohio’s missteps in the implementation of its former protocol, and the consequences of those missteps for that state’s inmates, proves that Delaware inmates will suffer a similar fate. But the Plaintiffs again ignore Baze’s teaching that risks of maladministration and mere mistakes do not suffice to prevail on an Eighth Amendment challenge. We are no more persuaded by the Plaintiffs’ related argument that Delaware’s deliberate indifference is evidenced by its “on-going failure to come to terms with this foreseeable event [i.e., a slip-up akin to
41

the ones committed in Ohio under its former three-drug protocol.]” (Appellants’ Supp. Br. 10.) That argument again presumes that the “deliberate indifference” standards employed in conditions-of-confinement cases also govern method-ofexecution cases, a presumption we have already determined to be misguided. The Plaintiffs also appear to be operating under the flawed impression that a state may be compelled to change its lethal injection protocol simply because another state has elected to do so. No relevant legal authority supports that impression, which, in our view, runs wholly counter to wellsettled notions of federalism and state sovereignty.18 Cf. Baze,
18In their supplemental filings, the Plaintiffs also assert, as they did in their initial brief, that a genuine factual dispute exists by virtue of the Delaware protocol’s lack of a “Plan B.” This time, however, they highlight a similar lack in Ohio’s old protocol, which they claim resulted in more than two hours of failed efforts to establish an IV line during the would-be execution of an Ohio inmate. In their view, Delaware could at any time go “off-protocol” in the event of a failure to establish an IV line during an execution. That view is singularly unconvincing. Delaware has a protocol firmly in place. There is nothing in the record to support the proposition, and no logical reason to assume, that Delaware will do anything other than what its protocol requires and what it has represented on the record it would do in the event of a failed administration of sodium thiopental. There is perhaps always an ethereal risk that a rogue execution team could deviate from a written protocol and depart on a whimsical frolic, a possibility the Plaintiffs appear to take as a given. There is no historical basis for such
42

128 S. Ct. at 1531 (rejecting an approach that would “transform courts into boards of inquiry charged with determining ‘best practices’ for executions”); id. at 1527 n.1 (describing the several states’ individual approaches to capital punishment).
In essence, the Plaintiffs claim that Delaware’s protocol violates the Eighth Amendment because of the existence of a purportedly better alternative: a one-drug protocol that would eliminate the potential hazards sometimes occasioned by the maladministration of sodium thiopental. The critical weakness in that position is that it is remarkably similar, if not identical, to the one advanced by the Baze petitioners and specifically rejected by the Baze Court. See 128 S. Ct. at 1531 (noting that “[s]uch an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures”). Baze explained that an inmate seeking to establish an Eighth Amendment violation based on the existence of an alternative must prove that the alternative is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” Id. at 1532. The Plaintiffs have not carried that burden because they have submitted no evidence on this point. Instead,
an eventuality, however, as nothing in the record suggests that Delaware officials have ever gone “off-protocol” during any of the thirteen executions already carried out in that state. In any event, such an occurrence is both grossly speculative and highly improbable and thus does not imply the existence of conditions that are “sure or very likely” to cause pain.
43

they have merely directed our attention to another state that has adopted the protocol the Plaintiffs wish to see implemented in Delaware. Under Baze, that line of attack simply does not carry the day. See id. at 1537 (“[A]n inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures.”); see also, e.g., Cooey, 2009 U.S. App. LEXIS 26695, at *41 (rejecting an inmate’s “proposed amendment to Ohio’s protocol [a]s eminently the kind of cost-benefit judgment that courts are ill-suited to perform and that Baze discouraged” (citing Baze, 128 S. Ct. at 1531)).
In sum, on this record we are compelled to conclude that the Plaintiffs have failed to show that Delaware’s lethal injection protocol violates the Eight Amendment under Baze. Accordingly, we will affirm the District Court’s grant of summary judgment for Delaware.
C. The District Court’s Stay
Delaware argues that the District Court erred when it kept in place the stay of Jackson’s execution that it entered shortly after these proceedings began. In essence, the District Court granted a stay pending appeal, and appears to have done so sua sponte, as there is no clue in the record that any party asked for such relief. Because we will affirm the District Court’s grant of summary judgment for Delaware, we will dissolve the District Court’s stay and therefore have no occasion to reach the merits of Delaware’s cross-appeal.
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We cannot leave this issue, however, without saying a word about the District Court’s decision not to provide any reasons for granting a stay pending appeal. In its order granting summary judgment for Delaware, the District Court stated only that “the stay entered on May 6, 2006, shall remain in effect pending appeal.” (App. 59.) Under the circumstances presented here, we are not hard-pressed to divine potential reasons for the District Court’s decision to prolong the stay. The District Court might have thought there was a reasonable likelihood that the Plaintiffs would prevail on appeal. In light of that perceived likelihood, the District Court might have considered the possibility of irreparable harm to Jackson were he executed under an unconstitutional protocol. Both of these reasons might well be valid. But we are reluctant to rely purely on our own speculation, no matter how logically appealing or supported by a piecemeal gathering of elements in the record, in reviewing a district court’s grant of a stay pending appeal, or any other relief for that matter.
Explicit, on-the-record reasons for granting any relief, including a stay pending appeal, not only facilitate, but are often crucial to, effective appellate review. See Protective Comm. for Indep. Stockholders of TMT Trailer Ferry v. Anderson, 390 U.S. 414, 434 (1968) (“It is essential . . . that a reviewing court have some basis for distinguishing between well-reasoned conclusions arrived at after a comprehensive consideration of all relevant factors, and mere boiler-plate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law.”). Indeed, the omission of such reasons makes our role as a reviewing court needlessly arduous, and sometimes even practically impossible. See Sowell v. Butcher
45

& Singer, Inc., 926 F.2d 289, 295 (3d Cir. 1991) (noting “the difficulties posed by a district court’s ruling without explanation”); see, e.g., Educ. Testing Servs. v. Katzman, 793 F.2d 533, 546 (3d Cir. 1986) (finding “meaningful appellate review of the [district court’s] conclusions impossible without . . . specific findings of fact”). Accordingly, we encourage district courts in this circuit to state their reasons for granting stays pending appeal so that we can clearly understand the factual and legal predicates giving rise to such relief.
IV. CONCLUSION
The safeguards drafted into Delaware’s new lethal injection protocol exceed those contained in the Kentucky protocol that seven Justices in Baze found constitutionally firm, and the Plaintiffs have failed to adduce evidence that the new protocol otherwise offends the Eighth Amendment. Accordingly, we will affirm the District Court’s grant of summary judgment for Delaware and dissolve the District Court’s stay. Our holding, of course, should in no way be construed as license for Delaware to stay the worrisome course it appears to have taken at times under its former protocol. As Baze aptly noted, “[r]easonable people of good faith disagree on the morality and efficacy of capital punishment[.]” 128 S. Ct. at 1537. But whatever one’s personal feelings about the death penalty, no reasonable person disputes that the execution of a human being, no matter how heinous his or her crime, is a most solemn and weighty matter. The record before us reflects an occasional blitheness on Delaware’s part that, while perhaps not unconstitutional, gives us great pause. We remind Delaware not only of its constitutional obligation to ensure that the
46

implementation of its new protocol does not run afoul of the Eighth Amendment’s proscription of cruel and unusual punishment, but also of its moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands.
47

 
 PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______
No. 11-9002 ______
ROBERT W. JACKSON, III
v.
CARL C. DANBERG, Commissioner, Delaware Department of Correction;
THOMAS L. CARROLL, Warden Delaware Correctional Center;
PAUL HOWARD, Bureau Chief Delaware Bureau of Prisons; OTHER UNKNOWN STATE ACTORS RESPONSIBLE FOR AND PARTICIPATING IN THE CARRYING OUT OF PLAINTIFF'S EXECUTION
Robert W. Jackson, III, individually and on behalf of the Certified Class,
Appellant ______
On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-06-cv-00300)
District Judge: Honorable Sue L. Robinson

______
Argued July 28, 2011 Before: AMBRO, FISHER and HARDIMAN, Circuit Judges.
(Filed: September 7, 2011 )
Helen A. Marino, Esq. Maria K. Pulzetti, Esq. Michael Wiseman, Esq. (Argued) Defender Association of Philadelphia Federal Capital Habeas Corpus Unit The Curtis Center, Suite 545 West Independence Square West Philadelphia, PA 19106
Counsel for Appellant
Elizabeth R. McFarlan, Esq. Marc P. Niedzielski, Esq. Gregory E. Smith, Esq. Paul R. Wallace, Esq (Argued) Morgan Zurn, Esq. State of Delaware Department of Justice 820 North French Street Carvel Office Building, 6th Floor Wilmington, DE 19801
Counsel for Appellees
2

______
OPINION OF THE COURT ______
FISHER, Circuit Judge.
A class of inm ates sentenced t o death by the State of Delaware and nam ed plaintiff Robert W. Jackson, III (collectively referred to in this opinion as “Plaintiffs”), appeal from the District Court’s denial of their m otion to reopen and their motion for a stay of Jackson’s execution. After careful review, we conclude that the Di strict Court did not abuse its discretion, and, accordingly, we affirm.
I.
A. Facts
This is our second encounter with a 42 U.S. C. § 1983 challenge related to Delaware’s lethal injection pr otocol. Much of the background factual information in this case is the same as we recounted in Jackson v. Danberg , 594 F.3d 210 (3d Cir. 2010) (“ Jackson I”), and so we only will briefly outline that background material before setting forth in more detail those facts essential to the resolution of this appeal.
Delaware law provides that:
[p]unishment of death shall, in all cases, be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to
3

cause death and until such person sentenced to death is dead, and such exec ution procedure shall be determined a nd supervised by the Commissioner of the Department of Correction.
DEL. CODE ANN. tit. 11, § 4209(f) (2006 Supp.). The statute does not m andate the us e of any particular drug or series of drugs.
On August 29, 2008, the Dela ware Department of Correction (“DDOC”) institute d a new lethal injection protocol (“2008 Protocol”). The prot ocol calls for the sequential intravenous (“IV”) injection of three chemicals into an inmate’s bloodstream. The first chemical is sodium thiopental, which renders an inmate unconscious. The second chemical is pancuronium bromide, a muscle relaxant that acts as a paralytic agent. The third and final chem ical is potassium chloride, w hich induces cardiac arrest and causes the inmate’s death. The 2008 Protocol also calls for the IV team, consisting of two people who m ay have at least one year of pr ofessional experience,1 to examine the inmate to ensure he is unconscious bef ore the pancuronium bromide is administered. The conscious ness check requires the warden to call the inm ate’s name out loud to obse rve any reaction from the inmate. At the same ti me, a member of the IV team assesses the inmate’s consciou sness by touc hing the inm ate, shaking his shoulder, and br ushing his eyelashes. If the
1 Those specialists include a certified medical assistant, a phlebotomist, an em ergency medical technician, a paramedic, and a military corpsman.
4

inmate is not unconscious, the protocol requires the execution team to repeat the administra tion of the first chemical and subsequent consciousness checks until the inmate is deemed unconscious.
Delaware amended its protocol on May 5, 2011. The amended protocol, which is be fore us today, include s only one significant difference. Due t o a nationwide short age of sodium thiopental, Delaware, along with a number of other states, revised its protoc ol to allow for the use of an alternative barbiturate, pentobarbi tal, as the first chemical to be administered.
B. Procedural History
Jackson, a Delaware state inmate convicted of first degree murder and sentenced to death by t he State of Delaware, commenced this action on May 8, 2006. He filed a section 1983 action 2 alleging that the State of Delaware’s
2 42 U.S.C. § 1983 provides, in pertinent part:
Every person w ho, under col or of any statute, ordinance, regulation, custom, or usage, of a ny State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person withi n the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, sh all be liable to the party injured[.]
5

then-existing method of lethal injection created an unconstitutional risk of pain an d suffering, cognizable under the Eighth and Fourteenth Amendments of the United States Constitution.3 The District Court certified a class under Fed. R. Civ. P. 23(b) consisting of all Delaware death row inmates and appointed class counsel. See Jackson v. Danberg , 240 F.R.D. 145 (D. Del. 2007).
During the course of litigati on in the District Court, Defendants amended their lethal injection pr otocol twice. Ultimately, the 2008 Protocol wa s enacted in an effort to incorporate the safeguards described by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), wh ich upheld Kentucky’s lethal injection protocol against a challenge under the Eight h Amendment. Upon adopti on of the 2008 Protocol and at the direction of the District Court, Defendants m oved for summary judgment. They argued that the 2008 Protocol fully complied with the mandate of Baze and that the lethal injection protocol, including the use of sodium thiopental, did not constitute cruel and unusual punishment. The District Court acknowledged that the DDOC had failed to foll ow its own procedures in certain execu tions but held that Plaintiffs
3 Jackson named the follo wing defendants in his complaint: Stanley W. Taylo r, Jr., Commissioner, Delaware Department of C orrection; Thomas L. Carroll, Warden, Delaware Correctional Center; Paul Howard, Bureau Chief, Delaware Bureau of Prisons ; and ot her unknown Del aware officials (collectively, “Defendants”). In February 2007, the District Court substituted Taylor with his successor, Carl C. Danberg.
6

had not show n a “substantial risk of a n inadequate dose of sodium thiopental.” Jackson v. Danberg, 601 F. Supp. 2d 589, 599 (D. Del. 2009). The District Court granted summary judgment to Defendants and stayed executions pending appeal. Id.
Plaintiffs appealed, and De fendants cross-appealed the stay of executions. We affi rmed the grant of summary judgment, applying Baze to our analysis. Jackson I, 594 F.3d 210. We held that to prevail on a claim that a risk of future harm runs afoul of the C onstitution, an inmate must demonstrate that “the conditions presenting the risk must be ‘sure or v ery likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” Id. at 216 (quoting Baze, 553 U.S. at 50). We noted tha t “the proper administration of s odium thiopental is an indispensable link in the leth al injection c hain for Eighth Amendment purposes, as it ensu res that an inmate will not suffer under the effects of the second tw o drugs.” Id. at 225. In other words, although “[r] easonable people of good faith disagree on the m orality and efficacy of capital punishment,” Delaware’s 2008 Protocol is not unconstitutional under existing Supreme Court precedent. Id. at 230 (quoting Baze, 553 U.S. at 61). The Suprem e Court denied certiorari on October 12, 2010. Jackson v. Danberg , 131 S. C t. 458 (2010).
Shortly after Delaware changed i ts protocol to include pentobarbital as an alternative to sodium thiopental in May 2011, Plaintiffs filed a motion to reopen under Fed. R. Civ. P. 60(b)(6) and (d) and a motion to stay Ja ckson’s execution with the District Court. Plai ntiffs argued that the substitution
7

of pentobarbital for sodium thiopental is a factual change that undermines the foundations of the prior ruling, constituting an exceptional circumstance under Rule 60(b)( 6) and a circumstance calling for an inde pendent action to prevent a miscarriage of justice under R ule 60(d). They relied on an expert report written by David B. Waisel, M.D., in s upport of their motion. Defendants, in turn, relied on an expert report by Dr. Mark Dershwitz, an anes thesiologist with a Ph.D. in pharmacology. The D istrict Court denied both of Plai ntiffs’ motions. It found that a st ay was not w arranted because Plaintiffs had “not car ried their burden to prove that they are likely to succeed on the mer its of their Eight h Amendment claim.” Jackson v. Danberg , 2011 W L 3205453, at *3 (D . Del. July 27, 2011). The District Court also denied Plaintiffs’ motion to reopen under bot h Rules 60(b)(6) and 60( d), concluding that “the record at bar is insufficient to reopen the judgment entered by [it] in 2009.” Id. at *4. Plaintiffs timely appealed the judgment of the District Court and filed an independent motion for a stay.
We denied the motion to st ay on July 28, 2011, and affirmed the judgment of the District Court with an opinion to follow.4 F ollowing our decision, the S upreme Court de nied
4 The panel issued its or der around 7:00 p.m. on July 28, 2011, approximately five hours before the schedule d time of execution.
8

certiorari, and Robert Jackson was executed just after midnight on July 29, 2011, by lethal injection.5
II.
The District Court had ju risdiction under 28 U. S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) to consi der the appeal by Plaintiffs from the District Court’s deni al of injunctive relief and under 28 U.S.C. § 1291 to consider the appeal by Plaintiffs from the District Court’s denial of relie f under Fe d. R. Civ. P. 60( b) and (d). We review a district court’s de nial of a st ay for abuse of discretion, which may be found where its conclusion includes the commission of a serious error of law or a mistake in considering the facts. Bradley v. Pittsburgh Bd. of Educ. , 910 F.2d 1172, 1175 (3d Cir. 1990). We also review a district court’s denial of a Rule 60(b) and (d) m otion to reopen for abuse of discretion. Morris v. Horn, 187 F.3d 333, 341 (3d Cir. 1999).
III.
A. Stay
“[A] stay of execution is an equitable remedy” that “is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal
5 We write on this issue as this appeal was filed on behalf of a class, and it impacts appellants other than Jackson.
9

courts.” Hill v. McDonough, 547 U.S. 573, 584 (2006). The standard for issuance of a stay is like that for issuance of a preliminary injunction, and requ ires consideration of four factors:
(1) whether the stay applicant has made a strong showing that he is li kely to succeed on the merits; (2) whether th e applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill , 481 U.S. 770, 776 ( 1987); Republic of Phil. v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 1991). I n assessing t hese factors, we underscor e that “inmates seeking time to cha llenge the manner in which the State plans to execute them must sat isfy all o f the requirements for a stay, includin g a showing of a significant possibility of success on the merits.” Hill, 547 U.S. at 584.
Plaintiffs argue that be cause pentobarbital is not approved by the F ood and Drug Administration (“FDA”) for use as an anesthetic, its pe rformance in the three-drug protocol, namely its m anner and tim ing of i nducing unconsciousness, is unknown and unpredictable and therefore violative of the Eighth Amendm ent. In support of their argument that pentobarbital re nders the lethal injection protocol unconstitutional, Plai ntiffs proffer the following evidence: (1) th e opinion of Dr. D avid Waisel, an anesthesiologist at Harvard La w School, w ho, among other things, has reviewed eyewitne ss accounts and has concluded
10

that Alabama prisoner Eddie Powell and Geor gia prisoner Roy Blankenship were inade quately anesthetized by pentobarbital and suf fered greatly from their executions; (2) the fact that pentobarbital is not approved by the FDA for use as an anesthetic; and (3) the fact that pentobarbital is less lipid-soluble than sodi um thiopental and the refore does not cross the blood-brain barrier as quickly.
Plaintiffs’ challenge to the DDOC’s substitution of pentobarbital for sodium thiopental is gover ned by t he Supreme Court’s splintered decision in Baze. In Baze, the Supreme Court recognized “that subjecting indivi duals to a risk of future harm − not simply actually inflicting pain − can qualify as cruel and unusual punis hment.” 553 U.S. at 49. However, to constitute a violati on of the Eighth Amendment, “the conditions presentin g the risk must be ‘ sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” Id. at 50 (quoting Helling, 509 U.S. at 34-35). “ Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm ’ that qualifies as cruel and unusual.” Id. Rather, a stay of execution m ay only be granted where “the condem ned prisoner establishes that the State’s lethal injection pr otocol creates a dem onstrated risk of severe pain . . . [and] th at the risk is substantial when compared to the known and available alternatives.” Id. at 61.
The District Court, appl ying the Baze principles, concluded that Plaintiffs fa iled to dem onstrate that the substitution of pentobarbital resulted in a constitutionally unacceptable risk of pain and suffering. It noted that
11

Delaware’s protocol calls for the administration of five grams of pentobarbital, which on its own is a lethal dose according to Dr. Dershwitz. Moreover, the Delaware protocol calls for a consciousness check after two minutes have lapsed, followed by t he administration of a second dose of pentobarbital if the inmate is still conscious after two minutes. Based upon these fa ctual findings and procedural safeguards, the District Court concl uded that Plaintiffs had not presented “affirmative evidence . . . that the administration of pentobarbital as the first drug in Delaware’s three-drug protocol creates a de monstrated risk of severe pain, as required by the Suprem e Court.” Jackson, 2011 WL 3205453, at *3. In ot her words, the District Court concluded that Plaintiffs failed to demonstrate a likelihood of s uccess on the merits and accordingly denied the stay.
After conducting our own searching revi ew of t he record, we conclude that the Di strict Court did not abuse its discretion in denyi ng Plaintiffs’ m otion for a stay. The District Court’s factual fi ndings are supported by the testimony of Defendants’ expert, Dr. Dershwitz. The purpose of the anesthetic in Delaware’s lethal injection protocol is to render the inm ate unconscious before administration of the
12

second and third drugs, and ther e is no affirm ative evidence that pentobarbital fails to do this.6
6 Jackson urges us to consi der Georgia’s execution of Roy Blankenship and Alabama’s execution of Eddie P owell as affirmative eviden ce that pentobarbital fails to properly anesthetize inmates. Dr. Wais el, who formulated his opinion based on witnesses’ accounts of the execution a nd some movement by the inm ates during the initial three minutes at the start o f the execution proc ess, expressed concer n that Blankenship and P owell were in sufficiently anesthetized. Witnesses described t hese executions in contradictory ways. For example:
To some, Blankenship was just looking up and watching what was occurring, looked at his left arm (which had an IV saline drip) and then 30 to 60 seconds later looked toward his right arm where the adm inistration of the pentobarbital was starting. To othe rs, Blankenship appeared to grimace, or have a startled face, or jerked his arm twice, or had his mouth open and tried to mouth something.
DeYoung, 2011 WL 28997 04, at *5. Under Ge orgia’s protocol, the execution could not proceed until a consciousness check was perform ed. The District Court was not persuaded by this equivocal evidence of consciousness in the face of strict procedural safeguards, and we see no abuse of discretion in its conclusion.
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Indeed each court to consider this issue has uniform ly held that the use of pentobarbital in lieu of s odium thiopental is constitutional.7 See, e.g., DeYoung v. Owe ns, --- F.3d ---, 2011 WL 2899704, at *3 ( 11th Cir. July 20, 2011); Powell v. Thomas, 641 F.3d 1255, 1257 (11t h Cir. 2011) (per curiam); Pavatt v. Jones , 627 F.3d 1336 (10t h Cir. 2010). For example, the United States C ourt of Appe als for the Tenth Circuit approved a protocol virtually identical to Delaware’s after allowing an Oklahoma death-sentenced inmate to conduct discovery, submit an e xpert report, and hold an evidentiary hearing. Pavatt, 627 F.3d at 1338- 40. In Pavatt, the district court considered evidence that: (1) the first step of Oklahoma’s lethal injectio n protocol mandates the intravenous administration of five grams of pe ntobarbital; (2) the protocol requires the attending physician to ensure that the inmate is sufficiently unconscious prior to the administration of the paralytic agent; (3) the administration of a sufficient dose of pentobarb ital will render an individual unconscious; (4) the defenda nt’s expert witness, Dr. Dershwitz, testified that the five-gram dosage will ensure that the inmate does not feel the effe cts of the paralytic agent; and (5) Dr. Dershwitz responded to Dr. Waisel’s testim ony by pointing out that t he use of pentobarbital to induce a barbiturate coma takes th e patient to a state of unconsciousness beyond a normal clinical level of anesthesia.
7 While these cases are not controlling, it is noteworthy that the expert reports before the District Court here were written by the same experts utilized in the other courts of appeals cases.
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Id. at 1339. At the conclusion of the hearing, the district court denied the m otion for a stay, concluding t hat the prisoner failed to establish a s ubstantial likelihood of success on the merits of his Eighth Amendment challenge.

On appeal, the Tenth Circuit held that the district court

did not abuse its discretion in denying a stay. Specifically,

the Tenth Circuit observe d that Dr. Dershwitz had

“substantially more clinical experience with the us e of

pentobarbital than Dr. Waisel.” Id. at 1340. The cour t also

noted the importance of the consciousness check to its

analysis, and held that the in mate “failed to establish a

substantial likelihood of succe ss on t he merits of his Eight h

Amendment challenge to the . . . revised pr otocol.” Id.; see

also DeYoung, 2011 WL 2899704, at *6 (“DeYoung has

wholly failed to show that

pentobarbital, once fully

administered and allowed to act, is in effective as an anesthetic.”);8 Powell, 641 F.3d at 1257-58 (appr oving the

substitution of pentobarbital fo r sodium thiopental). We

agree with the Tenth Circui t’s approach and li kewise

conclude that Plaintiffs cannot establish that pentobarbital is

8 Plaintiffs’ assertion that th e Eleventh Circuit’s denial of DeYoung’s claims was ba sed entirely on Georgia’s twoyear statute of limitations is only partially correct. DeYoung, 2011 WL 2899704, at *3. Th e court engaged in a thorough analysis of the m erits of DeY oung’s claims and hel d in the alternative that “even if [DeY oung’s claims] were timely , they fail as a matter of law . . . because [he] has not established a substantial likelihood of success on the merits of his claims.” Id.

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“sure or very likely to cause s erious illness and needless suffering.” Baze, 553 U.S. at 50 (quoting Helling, 509 U.S. at 34-35).
Finally, Plaintiffs argue that the District Court misapplied the legal rubric of Baze by failing to engage in an additional inquiry with respect to their execution challenge: a comparative risk analysis. According to Plaintiffs, the District Court was required t o consider the comparative risks of “known and available alternatives” to Delaware’s pentobarbital three-drug pr otocol. Specifically, they argue the District Court should ha ve considered the comparative risk of ( 1) a know n anesthetic dr ug with a pr oven track record, for use as the first drug in the three-drug pr otocol, or (2) a single-drug execution protocol.9
Plaintiffs’ argument misstates the law. “[A] condemned prisoner cannot succ essfully challenge a State’s method of execution m erely by showi ng a slightly or marginally safer alternative.” Baze, 553 U.S. at 51. Rather,

9 With respect to the second opt ion, Dr. D ershwitz

testified that a five-gram dose of a barbiturate such as sodium

thiopental or pent obarbital would cause de ath in all people,

and that death would occur as quickly as five minutes from

the injection. Ohio has used a one-dr ug protocol since

November 2009, and Washi ngton adopted a one-dr ug

protocol on March 2, 2010, bu t permits condemned inmates

to select the method. See Death Penalty In formation Ctr.,

Authorized

Methods,

http://www.deathpenaltyinfo.org/methods-execution.

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an inmate must first show th at a state’s current protocol creates a “demonstrated ri sk of severe pa in.” Id. at 61. Moreover, Delaware is not “com pelled to change its lethal injection protocol simply because another state has elected to do so.” Jackson I, 594 F.3d at 228. We recognize that the one-drug protocol is gaining support as an alternative to the three-drug lethal injection protocol, and we commend those states steadily striving to deve lop more humane alternatives to existing methods of execution. However, federal courts are not “boards of i nquiry charged with determining ‘best practices’ for executions.” Baze, 553 U.S. at 51.
“Pentobarbital is a barbitu rate commonly used t o euthanize terminally ill patients who seek death with dignity in states such as Oreg on and Washington.” Beaty v. Brewer, --- F.3d. ---, 2011 WL 2040916, at *4 (9th Cir. 2011) (denying rehearing en banc be cause inmate had no likelihood of success on Ei ghth Amendment claim based on pentobarbital). It has been used successfully for executions in at least four other states, and there is no evi dence that it fails
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to render an inmate unconscious.10 Id. The District Court did not abuse its discretion in finding that the use of pentobarbital did not create “a demonstrated risk of severe pain, as required by the Supreme Court.” Jackson, 2011 WL 3205453, at *3. Thus, we affirm the District Court’s denial of the stay.11
B. 60(b)(6) and 60(d)
10 Plaintiffs also assert that Defendants’ use of pentobarbital is violative of the Eighth Amendment because it evinces Defendants’ deliberate indifference to the pote ntial pain and suffering he will undergo. We have previously held that Baze did not im port the “delibe rate indifference” standard to lethal injection challenges. See Jackson I , 594 F.3d at 223 n.16. Instead, the Baze Court held that “there must be a ‘substantial risk of serious harm ,’ an ‘object ively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subj ectively blameless for purposes of the Eighth Amendment.’” Baze, 553 U .S. at 50 (quoti ng Farmer v. Brennan , 511 U. S. 825, 842, 846, & n.9 (1994)). Even if t his language did gr aft the deliberate indifference standard onto lethal injection challenges, because we conclude that there was no “subst antial risk of serious harm,” we also conclude that there could have bee n no deliberate indifference to that alleged risk.
11 Because we conclude th at Plaintiffs have not demonstrated a likelihood of success on the merits, we need not address the othe r factors required f or a stay of an execution.
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Rule 60(b)(6) relief from judgment is onl y granted i n extraordinary circumstances. See Martinez-McBean v. Govt. of Virgin Islands, 562 F.2d 908, 911-12 (3d Cir. 1977).12 It is available where the party seek ing relief demonstrates that “extreme” and “unexpected” hardsh ip will result absent such relief. United States v. Swift & Co. , 286 U.S. 106, 119 (1932). Similarly, Rule 60(d) permits a court to entertain an independent action to relieve a party from a judgment in order to “prevent a grave miscarriage of justice.” United States v. Beggerly, 524 U.S. 38, 47 (1998).
Plaintiffs claim that the ad dition of pentobarbital as an available alternative to sodi um thiopental is such a circumstance. In making this argument, Plaintiffs urge that the use of sodi um thiopental was central to our decision in Jackson I, and that the substituti on of an alternative barbiturate undermines the very foundation of our decision.
In Jackson I, we held that De laware’s three-drug protocol did not violate the Eighth Amendment, and stated that “the proper a dministration of sodium thiopental is an indispensable link in the leth al injection c hain for Eighth Amendment purposes, as it ensu res that an inmate will not suffer under the effects of the second two drugs.” 594 F.3d at 225. However, the import of both Baze and Jackson I is that use of an effective anesthetic as the first drug in a three-drug
12 Fed. R. Civ. P. 60(b)(6) provides, in pertinent part: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . any . . . reason that justifies relief.”
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protocol is required t o satisfy the Eighth Amendment. In other words, “[t]he proper adm inistration of the first dr ug [must] ensure[] that the prisoner does not experience any pain associated with the pa ralysis and cardiac arrest caused by the second and third drugs.” Baze, 553 U.S. at 44.
We cannot say that the District Court’s finding that pentobarbital is an effective an esthetic for purposes of the three-drug lethal injection is clearly erroneous, particularly based on i ts demonstrated uses and the testimony of Dr. Dershwitz. Accordingly, we conclude that the District Court did not abuse its discretion in denyi ng Plaintiffs’ motion to reopen, and we agree that “t he substitution of pentobarbital for sodium thiopental does not constitute a factual change which undermines th e foundation of [the] prior rul ing,” necessitating independent action under either Rule 60(b)(6) or 60(d). Jackson, 2011 WL 3205453, at *4.13
IV.
13 We also conclude that the District Cour t did not abuse its discretion in declin ing to grant an evidentiary hearing on the m atter. Having presided over the entire case and being intimately familiar with the record to date as well as the submissions regarding pentobarbital, the District Court was well-situated to rule on the motion to reopen and the motion for the stay, and addit ional discovery w ould not further illuminate the issue at bar. See United States v. Hines, 628 F.3d 101, 104 (3d Cir. 2010) (setting forth the standard of review).
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For all of these reasons, we conclude that Plaintiffs have not demonstrated a substantial likelihood of s uccess on the merits of their claims, and that the District Court di d not abuse its discretion in denying a stay of Jack son’s execution and Plaintiffs’ motion to reop en. Accordingly, we will affirm.
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