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

JOHN ALBERT BOLTZ, Plaintiff,
vs. JUSTIN JONES, et al.,
Defendants.

) ) ) ) ) Case No. CIV-06-0587-F ) ) ) )

TEMPORARY RESTRAINING ORDER “Plaintiff’s Motion for Temporary Restraining Order and/or Permanent Injunction,” filed May 30, 2006, is before the court. (Doc. no. 2) Defendant has filed a written response objecting to the motion and a full hearing was held today on the motion. Although the motion refers to both a temporary restraining order and a permanent injunction, the only aspect of the motion now before the court is the request for a temporary restraining order. Specifically, plaintiff seeks a temporary restraining order prohibiting the State of Oklahoma from executing plaintiff using the challenged protocol for administering a lethal injection. Absent relief, plaintiff’s execution is scheduled for 6 p.m. today. Plaintiff moves for a temporary restraining order under Rule 65, Fed. R. Civ. P. The criteria for entry of a TRO with notice or a preliminary injunction are the same. See, Kansas Hospital Association v. Whiteman, 835 F. Supp. 1548, 1551 (D. Kan. 1993) (noting that to obtain a temporary restraining order or a preliminary injunction the movant has the burden of establishing four criteria). As restated in that case from Tenth Circuit authorities, the movant has the burden of establishing that 1)

the party seeking the order will suffer irreparable injury unless the injunction issues, 2) the threatened injury to the moving party outweighs whatever damage the proposed injunction may cause the opposing party, 3) the injunction, if issued, would not be adverse to the public interest, and 4) there is a substantial likelihood that the moving party will eventually prevail on the merits. Id. at 551-52.
If the moving party satisfies the first three elements, the standard for meeting the fourth requirement, likelihood of success on the merits, generally becomes more lenient. Id. at 552. In such a case, the movant need only show that the issues are so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation. Id. These standards are well established by numerous Tenth Circuit cases, including Star Fuel Marts, LLC v. Sam’s East, Inc., 362 F.3d 639, 653 (10th Cir. 2004). In Star Fuel Marts the Tenth Circuit stated, “The Tenth Circuit has adopted the Second Circuit’s liberal definition of probability of success. Accordingly, where the moving party has established that the three harm factors tip decidedly in its favor, the probability of success requirement is relaxed. In such cases, the movant need only show questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation.” Id. at 652-533, citations and quotations omitted.
Additionally, in Nelson v. Campbell, 541 U.S. 637 (2004), the Supreme Court stated that a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim similar to the claim brought in the instant case. Id. at 649-50. In Nelson, the Supreme Court further noted that the state has a significant interest in enforcing its criminal judgments and that there is a strong equitable presumption against the grant of a stay where a claim could have been
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brought at such a time as to allow consideration of the merits without requiring entry of a stay. Id. In reaching the determinations stated in this order, the court has applied the requirements of Nelson v. Campbell. Indeed, the requirements of Nelson v. Campbell temper the court’s consideration of the criteria described below.1
1. Irreparable Injury Plaintiff’s alleged injury is the “conscious suffering and pain by the condemned inmate” which plaintiff asserts he will suffer during his execution if the State of Oklahoma proceeds with its execution by lethal injection protocols. (Complaint, p. 2, ¶ 3.) Plaintiff alleges that Oklahoma’s lethal injection protocol “does not in fact result in a quick, painless death; but rather implementation of the protocol carries a very high risk that Plaintiff will be paralyzed during the process and suffer excruciating pain while being unable to communicate or move.” (Complaint, p. 6, ¶ 19.) Plaintiff further alleges “a significant risk of agonizing and prolonged pain during the execution process which will deprive plaintiff of his rights under the Fifth, Eight, and Fourteen Amendments to the United States Constitution to be free from cruel and unusual punishment.” (Complaint, pp. 6-7, ¶ 21.) The court finds and concludes that the alleged injury which would be suffered by plaintiff if temporary injunctive relief is denied, is a painful and grave physical injury which, once inflicted, it would be impossible for the State or the courts to repair or redeem. Few injuries could be considered to be more “irreparable” to a person than an injury occurring during that person’s execution. The court therefore finds and
1 It should be noted preliminarily that the court, being conscious of the Tenth Circuit’s May 30, 2006 Amended Order in No. 06-6174 in that court, concludes that the “speculative” element of plaintiff’s challenge, as discussed in the final portion of that order, has now been alleviated by the filing of this action, and the submission of substantial supporting evidentiary materials.
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concludes that the first requirement for temporary injunctive relief, irreparable injury, has been established. It further finds that this first criterion weighs heavily in favor of granting temporary injunctive relief.
2. Threatened Injury as Balanced With Damage Injunctive Relief may Cause the State
As just stated, plaintiff’s alleged injury is an extremely serious and painful physical injury which plaintiff claims he will suffer during his execution. Balanced against plaintiff’s alleged physical injury is the injury which would be incurred by the State as a result of temporary injunctive relief. The primary injury which the State will suffer in the event a TRO is entered is a delay in the execution of plaintiff’s sentence, and the considerable burdens and costs associated with that delay. On the other hand, if the court ultimately determines this action in favor of the plaintiff, then the State’s interest in the constitutional execution of its condemned criminals is served, which is an important state interest. For these reasons, the court finds and concludes that in these circumstances, the threatened injury to the plaintiff outweighs the damage which a TRO might cause to the State of Oklahoma, so that the second requirement for temporary injunctive relief is met.
3. The Injunction’s Impact on the Public Interest The public has an interest in the expeditious carrying out of a sentence of execution. The public also has an interest in issues such as those raised by the complaint being raised in a timely manner rather than on the eve of execution as is the case here so that the issues may be resolved in as orderly and as considered a manner possible. As recognized by the Tenth Circuit in its recent Amended Order denying a stay of execution in Mr. Boltz’s case, the state has an interest in the timely carrying out of its final criminal judgments and the public has an interest in a criminal justice
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system which works as prescribed by its elected representatives without manipulative disruptions caused by eleventh hour claims which could have been asserted earlier. (Circuit’s Amended Order, No. 06-6174, at p. 9.) Furthermore, if injunctive relief is granted, the family of the victim of Mr. Boltz’s crime will suffer the inevitable trauma of a last-minute delay of Mr. Boltz’s execution.
These public interests are substantial, so substantial that, as previously noted, the Supreme Court has stated that a district court must consider the extent to which the inmate has delayed unnecessarily in bringing the claim. Nelson v. Campbell, 541 U.S. at 649-50 (2004). The public also has an interest, however, in the constitutional execution of its condemned criminals. The public has an interest in the orderly judicial consideration of the types of issues raised in this action.
At the hearing held on this date, plaintiff’s counsel adequately explained, even if barely so, the delay in bringing this action. Plaintiff has not had the benefit of any provision (even though not constitutionally required) for compensated counsel to assert the claims he now asserts. Moreover, the judicial and scientific development of the factual and legal basis for the challenge now before the court is of only recent vintage. The defendants complain most emphatically of the delay since the Supreme Court’s denial of certiorari on March 27, 2006. Measured against that period of delay, the equities of the matter cannot be said to clearly preponderate against a grant of provisional relief. The court’s consideration of plaintiff’s motion is indeed affected by the Supreme Court’s emphatic admonition in Nelson v. Campbell. At this juncture, the court concludes that plaintiff has cleared that hurdle. The matter awaits orderly consideration on the merits.
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In the circumstances of this case, the court finds and concludes that the third requirement for temporary injunctive relief is met because a temporary injunction is not adverse to the public interest.
4. Likelihood that Plaintiff will Prevail on the Merits The court has found that plaintiff satisfies the first three requirements for temporary injunctive relief. It now finds that these first three elements “tip decidedly in favor of temporary injunctive relief.” Star Fuel Marts, LLC v. Sam’s East, Inc., 362 F.3d at 653 (10th Cir. 2004). Accordingly, the court applies a more lenient standard with regard to the fourth requirement. Id. To meet this fourth requirement, plaintiff need only show that the issues are so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation. Id. Issues involving the constitutionality of protocols for execution are serious and substantial issues. They are also difficult and doubtful issues, as evidenced by the difference of opinion expressed by other courts, both state and federal, in decisions which have recently considered such issues. See, e.g., the divided views of the Sixth Circuit as stated in Alley v. Little, 2006 WL 1313365 (6th Cir. 2006) and in the dissent to the rehearing en banc in that case, 2006 WL 1320433 (6th Cir. 2006). Having reviewed the Complaint, and being generally aware of the currently divided views of other courts regarding the merit of claims similar to those made by plaintiff in this action, the court finds and concludes that the allegations asserted in this action are a fair ground for litigation. Accordingly, the fourth requirement for temporary injunctive relief is met.
5. Status of Hill as Additional Ground for Injunctive Relief Finally, the court notes the status of Hill v. McDonough, No. 05-8794, as a factor supporting temporary injunctive relief. Hill concerns whether a civil rights
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action is cognizable as a § 1983 action or must be re-characterized as a successive habeas petition under § 2254. At least one other court has entered a preliminary injunction in a case raising claims similar to the claims in this action, enjoining a scheduled execution until the Supreme Court decides Hill and stating that a decision is expected before June 30, 2006. (Plaintiff’s first supplemental brief, Ex. 3, attaching Memorandum Order of May 9, 2006 entered in Jackson v. Stanley Taylor, et al., CIV06-0300, U.S. District of Delaware.)
Conclusion Despite the burdens which a delay in Mr. Boltz’s execution will cause, the criteria required for temporary injunctive relief are present in this case. A temporary restraining order prohibiting the defendants from proceeding with Mr. Boltz’s execution, and thereby preserving the status quo until such time as the court can rule on a motion for preliminary injunction, will serve the interests of justice. A temporary restraining order will allow the court to hear the issues in a more developed and orderly fashion, which is, at this juncture, an overriding concern. Therefore, even presuming a strong equitable presumption against a restraining order because this case is arguably a last-minute manipulation of the judicial process, the court finds and concludes that the motion for a temporary restraining order should be granted and that the defendants should be temporarily restrained from executing Mr. Boltz through June 28, 2006. To this extent, plaintiff’s motion for a temporary restraining order is GRANTED. The defendants are hereby restrained from executing John Albert Boltz until a date after June 28, 2006, the date on which plaintiff’s motion for a preliminary injunction will be heard at 9 a.m. In open court, the court established a briefing schedule. Counsel are reminded that their yet-to-be filed brief
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should address the issue of whether there is any basis, in any event, for further delay of the execution (as distinguished from relief addressed to the method of execution).
Dated this 1st day of June, 2006.
06-0587p005(pub).wpd
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 Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 1 of 40

UNITED STATES DISTRICT COURT FOR THE \l:IESTERN DISTRICT OF OKLAI-IOrvlA

JOHN ALBERT BOLTZ,

)

)

Plaintiff,

)

)

vs.

)

)

(1) JUSTIN JONES, in his capacity as )

Director of the Oklahoma Department )

of Corrections; (2) MARTY SIRMONS, )

in his capacity as Warden, Oklahoma State)

Penitentiary; (3) ERNEST GODLOVE, )

(4) DAVID C. HENNEKE, (5) TED

)

LOGAN, (6) W. MARK LUTTRULL, )

(7) ROBERT L. RAINEY, (8) ERNEST )

D. WARE, and (9) BEVERLY YOUNG, )

in their capacities as members of the

)

Oklahoma Board of Corrections, and

)

(10)-(60) DOES 1-50, UNKNOWN

)

EXECUTIONERS, in their capacities as )

Employees and/or Agents of the Oklahoma)

Department of Corrections.

)

)

Defendants.

)

Case No. _ _ _ _ _ __ COMPLAINT

COMPLAINT I. PRELIMINARY STATEMENT 1. Plaintiff John Albert Boltz is a prisoner under sentence of death imposed by the State of Oklahoma. He is currently housed at the Oklahoma State Penitentiary (Death Row) at McAlester, Oklahoma, and is scheduled to be

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 2 of 40
executed by lethal injection this Thursday, June 1, 2006. A Motion for Temporary Restraining Order accompanies this Complaint. 2. The State of Oklahoma utilizes lethal injection as its primary method of carrying out executions. The Defendants have created a specific method of lethal injection that purports to induce death after the condemned prisoner has been rendered unconscious and unable to experience pain. 3. Boltz contends that in fact the method of lethal injection employed by the State of Oklahoma carries a high risk of conscious suffering and pain by the condemned inmate and that the State of Oklahoma has deliberately ignored or is indifferent to the health and safety of condemned prisoners in violation of the Eighth and Fourteenth Amendments to the United States Constitution. 4. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened (imminent) violations of the rights of Plaintiff to be free from cruel and unusual punishment under the Eight and Fourteenth Amendments to the United States Constitution, to be free from the arbitrary and capricious protocols and procedures as established by the Defendants in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and to be free from the deliberate indifference of the Defendants toward the health and safety of the Plaintiff in violation of the Eighth and Fourteenth
Page 2 of 9

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 3 of 40
Amendments to the United States Constitution. Plaintiff seeks equitable and injunctive relief. 5. This Complaint does not challenge the fact of Plaintiff's sentence of death, nor does it challenge the constitutionality of Oklahoma's statute requiring execution by lethal injection.
II. PLAINTIFF 6. John Albert Boltz is a citizen of the United States and a resident of the State
of Oklahoma. He is currently incarcerated under the authority of the Defendants at the Oklahoma State Penitentiary (Death Row) at McAlester, Oklahoma. He is scheduled to be executed on Thursday, June 1, 2006.
III. DEFENDANTS 7. Defendant Justin Jones is the Director of the Oklahoma Department of
Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma
73111.
8. Defendant Marty Sirmons is the Warden of the Oklahoma State Penitentiary at McAlester, Oklahoma, mailing address P.O. Box 97, McAlester, Oklahoma 74502.
9. Defendants Robert L. Rainey, W. Mark Luttrull, Ernest Godlove, David C. Henneke, Ted Logan, Beverly Young, and Earnest D. Ware, are members
Page 3 of 9

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 4 of 40
of the Oklahoma Board of Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma 73111. 10. Defendants unknown executioners are the officers, agents, employees, and successors in office, along with those acting in concert with them, of the Oklahoma Department of Corrections who will assist in carrying out the execution of Plaintiff. Plaintiff does not know the identity of his executioner. 11. Defendants are acting under color of State law in establishing and designing the execution protocol and will act under color of state law in selecting and administering to Plaintiff chemicals in amounts, in combinations, and by methods that will unnecessarily risk conscious suffering and pain in the execution of sentence of death and/or which are deliberately indifferent to the health, welfare, and safety of Plaintiff.
IV. JURISDICTION AND VENUE 12. This complaint is instigated under 42 U.S.C. § 1983 to redress the
deprivation under color of state law of rights, privileges, and immunities secured by the Constitution of the United States. The rights sought to be redressed are guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction over this complaint pursuant to 28 U.S.C. § 1331 (federal question); § 1343 (civil
Page 4 of 9

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 5 of 40
rights violations); § 2201 (declaratory relief); and § 2202 (further relief). 13. Venue is proper in this Court under 28 U.S.C. § 1391 (b) because Justin Jones
carries out the official business of the Department of Corrections from the Department's administrative headquarters in Oklahoma City, Oklahoma. All Defendants reside in the State of Oklahoma.
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES 14. Plaintiff initiated the Grievance process to exhaust his administrative remedies
pursuant to 42 U.S.C. § 1997e on April 21, 2006, with a Request to Staff. 15. Plaintiff informed the Defendants that his execution is to take place on
Thursday, June 1, 2006, and requested that his Grievance be dealt with on an emergency basis. Plaintiff received a letter from Debbie L. Morton, Director's Designee, stating that the grievance of Plaintiff "is not of an emergency nature[.]" 16. Plaintiff sent his request via certified mail to Defendant Justin Jones May 17, 2006, and has heard nothing back from Mr. Jones. Plaintiff alleges that the actions of the Defendants in dealing with his Grievance in a timely manner under the circumstances have been undertaken in bad faith, that Defendants are the ones in complete control of the administrative procedures under which Plaintiff must avail himself, and that under these circumstances Plaintiff must
Page 5 of 9

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 6 of 40
be deemed to have exhausted his administrative remedies. See attachments. VI. FACTUAL ALLEGATIONS
17. Plaintiff re-alleges and incorporates paragraphs 1 through 17 as if fully set forth herein.
18. Plaintiff also alleges and incorporates paragraph numbers 14-71 of the Complaint filed in this Court by two similarly situated death row inmates who have initiated suit on this issue prior to Plaintiff in Glenn Anderson, et al. v. Edward L. Evans, et al., No. CIV-OS-082S-F. A copy of the Complaint is attached to this Complaint.
19. The facts alleged support the allegations in this complaint that the lethal injection protocol does not in fact result in a quick, painless death; but rather implementation of the protocol carries a very high risk that Plaintiff will be paralyzed during the process and suffer excruciating pain while being unable to communicate or move. VII. CLAIMS
20. Plaintiff re-alleges and incorporates paragraphs 1-20 as if fully set forth herein (including all incorporated paragraphs and attachments).
21. The Defendants plan to subject Plaintiff to a significant risk of agonizing and prolonged pain during the execution process which will deprive Plaintiff of
Page 6 of 9

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 7 of 40
his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution to be free from cruel and unusual punishment. 22. Defendants are aware of the problems associated with the lethal injection procedure and will thus exhibit deliberate indifference to the suffering of Plaintiff during his execution in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
VIII. PRAYER FOR RELIEF 23. Plaintiff re-alleges and incorporates paragraphs 1-23 as if fully set forth
herein. 24. Plaintiff requests this Court issue a judgment declaring that the Defendants
protocols, policies, practices, and acts and omissions as described herein violate Plaintiff's rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. 25. That this Court enjoin permanently the Defendants, their officers, agents, employees, and successors in office, along with those acting in concert with them, from engaging in the unlawful practices described herein. 26. That this Court issue a temporary restraining order and a permanent injunction prohibiting the Defendants from carrying out the execution of Plaintiff under the unconstitutional protocols outlined in this Complaint.
Page 7 of 9

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 8 of 40

27. That this Court retain jurisdiction over this case until the Court's orders are carried out.
28. And that this Court grant all other such relief as this Court deems just, proper, and equitable under the circumstances. DATED this 30th day of May, 2006.

/s/ James L. Hankins

James L. Hankins, Okla. Bar No. 15506

ATTORNEY AT LAW

119 N. Robinson Ave., Ste 320

Oklahoma City, OK 73102

Phone: 405.232.1988

Fax:

405.272.9859

E-mail: jh@coylelaw.com

Page 8 of 9

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 9 of 40

VERIFICATION
I, James L. Hankins, hereby declare:
1. I am a member of the Bar of the State of Oklahoma and am admitted to practice before all federal district courts of Oklahoma, the United States Court of Appeals for the Tenth Circuit, and the United States Supreme Court.
2. I have reviewed the foregoing Complaint. I have personal knowledge of the matters set forth in the Complaint, except as otherwise indicated, and could and would competently testify to them if called upon to do so. I verify that all of the alleged facts that are not otherwise supported by citation to the records or declarations attached to the Complaint are true and correct to my own knowledge, except as to any matters stated in it on information and belief, which I am informed and believe are true and correct.
I declare under penalty of perjury under the laws of the State of Oklahoma and the United States of America that the foregoing is true and correct.
Executed on May 30, 2006, in Oklahoma City, Oklahoma

lsi James L. Hankins

James L. Hankins, Okla. Bar No. 15506

ATTORNEY AT LAW

119 N. Robinson Ave., Ste 320

Oklahoma City, OK 73102

Phone: 405.232.1988

Fax:

405.272.9859

E-mail: jh@coylelaw.com

Page 9 of 9

GrievanCceaRsees5p:o0n6s-ecfvro-0m05R8e7v-ieFwingDAoucthuomrietynt 1 Filed 05/30/2006 Page 10 of 40

Offender Name: Jobn Boltz

DOG Number:..Jl"'4ul.,,9"'2"-'1_ _ _ __

Receipt Date: 05/12/2006 Grievance Category Gode: 3 Grievance Number: 06-159

O. Discrimination 2. Complaint against staff 4. Disciplinary Process 6. Medical 8. Records/sentence administration

1. Classification 3. Conditions of confinement 5. Legal

7. Property 9. Religion

;'"1 this amended response io your grievance: I find that upon further review 0 the issue raised in your grievance, I have determined you have presented only conclusory statements and rive presented no evidence to support your claim.

Relief denied.

Reviewing Authority--Facility Health Services Administrator
~~
Review Authority--Facility fUnit Head

Date Date

//---- -J--=- )6 - a l d all paperwork submitted to the;eviewing authority.
=-~~~~~~~~~~~----
Date

You y appeal to~or or chief medical officer or deSignee at the Department of~ions, P.O. 11400, Oklahoma City, OK.

73136-0400, within 10 calendar days of receipt of response.

-- -.----

I wish to appeal the reviewing authority's or the facility health services administrator's response to the grievance on the following ground(s) only (use back side of th',s page, if necessary):

___ Newly discovered/available evidence was not considered by the reviewing authority, relevant to the issue, necessary for a proper decision, and why the evidence was not previously available which if considered may alter the decision (you must clearly state the newly discoveredlavailable evidence);or
V Probable error committed by the reviewing authority in the decision such as would be grounds for reversal (you must clearly state the error committed by the reviewing authority, including citing the part of procedures or statutes not followed by the reviewing authority).

I understand that in accordance with OP-090124, I will be charged $2 to appeal a grievance to the Director or

chief medical officer (or designee), and that this form is also a request for disbursement of funds from my trust

fund draw account. If I do not have funds to cover this cost, the amount will be collected as soon as funds

bec~;e~

-.5r:I' . 06

Si n e of Grieva

Date

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 11 of 40

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Case 5:06-cv-00587-F Document 1

Grievance Res on",,, from Reviewi" Authori!

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Offender Name' John BILz

Filed 05/30/2006 Page 12 of 40
,

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DOC Number:Jl-'l4ulJ;!!f,,2-tl-::-:-:-::c:-__

Receipt Date: 04/27/2006 Grievance Category Code: 3 Grievance Number: 06-159

o. Discrimination 2. Complaint against staff 4. Disciplinary Process 6. Medical 8. Records/sentence administration

1. Classification 3. Conditions of confinement 5. Legal

7. Property 9. Religion

in response to your grievance: in response to your grievance: I find me reply to me attached request to staff to be correct and appropriate,

Relief denied,

Reviewing Authority--Facility Health Services Administrator
~~c- ik" Review Authority--Facility /Unit Head

Date Date

nd all paperwork submitted to the reviewing authority,

L--HO)'-:!.::t'/r-

b-- )... - 0 b

~Ad~~~~~~------~----

Date

You ay appeal to the director or chief medical officer or designee at the Department of Corrections, ~.O. 11400, Oklahoma City, OK. 73136-0400. within 10 calendar days of receipt of response.

I wish to appeal the reviewing authority's or the facility health services administrator's response to the grievance on the following ground(s) only (use ~ack side of this page.. if necessary):

___ Newly discovered/available evidence was not considered by the reviewing authority, relevant to the issue, necessary for a proper deciSion, and why the evidence was not previously available which if considered may alter the decision (you must clearly state the newly discovered/available evidence);or

V Probable error committed by the reviewing authority in the decision such as would be grounds for reversal (you must clearly state the error committed by the reviewing authority, including citing the part of procedures or statutes not followed by the reviewing authority).

I understand that in accordance with OP-090124, I will be charged $2 to appeal a grievance to the Director or

chief medical officer (or designee), and that this form is also a request for disbursement of funds from my trust

fund draw account. If I do not have funds to cover this cost, the amount wiil be collected as soon as funds

becom~

.3- :L - 0 -6

tuce of Grievant

D~a~t~e----~----~-----------------

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 13 of 40
5~)"-'O b

Case 5:06-cv-00587-F

Document 1
APR 2"7

zoosFiled

05/30/2006

Page 14 of 40

u"-v;s,, ,...)REQUEST TO STAFF

TO:

c. <J \"

FACILITY/UNIT 0 s. I?- \-\

I
I have __ have not_"_'_ already submitted a;Request to Staff' or grievance ~is same issue.

If yes, what date:

facility:

grieece #~ 0

I affirm that I do _ do not~ have a grievance pending on this issue.

~

~ ':.;!}1

:s~~~~ that I do _ do not_ have a lawsuit of any type pending or planned that ~~ in !yw~:y t01ris

This request

does

v does not relate to a pending misconduct4port. If~t dO,es, t1is

request may only be answered by the investiQator assiQned to the misconduct.;:: -' "l'l '.. ; \

',...., «l

'Ow

.~".

I

SUBJECT: State completely, but briefly, the problem on which you desire assis~"n~. TWS sta,fe:li1~nt

must be specific as to the complaint, dates, places, personnel involved, and how you were affectEJd.Ol\1e

issue or incident per "Request to Staff." Your failure to specifically state your problem may resultiP.tl1is

being returned unanswered.

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Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 15 of 40

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 16 of 40

.o.::~ INMATEfOFFENDER GR!EVANCE REPORT FORM \

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1J Have you previously submitted a grievance on this same issue? D If yes, what date

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facility

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. You must submit this completed original within 15 calendar

days of the incident orthe receipt of an answer to your "Request to Staff." The "Request to Staff' must

have been submitted within 7 calendar days of the incident. Do not include/attach anything to this

grievance except the original "Request to Staff' including the response. You may quote from or make

reference to statutes, operations, field, or administrative memoranda, department publications (time

sheets, inventory forms, assessments), etc:

1. The nature of your complaint. This statement must be specific as to the complaint, dates,

places, personnel involved, and how you were affected. One issue or incident per grievance.

0f-e ~ backside of this page only, if necessary.

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officer (or designee), and that this form is also a requestfor disbursement offunds from my trustfund drawaC,if)' If Ird~_ not have enough funds to cover this cost. the amount will be collected as soon as funds become available,

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Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 17 of 40

JUSTIN JONES DIRECTOR
May 9, 2006

STATE OF OKLAHOMA OKLAHOMA DEPARTMENT OF CORRECTIONS

BRAD HENRY GOVERNOR

John Boltz #141921 Oklahoma State Penitentiary Post Office Box 97 McAlester, OK 74502-0097
Re: 06-926;OSP06-159 Subj: 3; Conditions of Confinement
Dear Mr. Boltz:
Although your grievance has been detennined it is not of an emergency nature, your grievance has been reviewed. Based on the infoffi1ation provided to this office, I have forwarded your grievance to Warden Sinuons for further review and investigation. An amended response will be provided by the reviewing authority within fifteen (15) working days of receipt of this request.
If, after receiving and reviewing the amended response, you have grounds for appeal as specified in OP-090124 entitled Inmate/Offender Grievance Process, Section VII, A. Grounds for Appeal, you may do so within guidelines stipulated in policy.
Sincerely,
{JvC~t!v' (':j~' ;)ltllt~
Debbie L. Morton Director's Designee
lkb
cc: Marty Sinuons, Warden, Oklahoma State Penitentiary

3400 MARTIN LUTHER KING AVENUE. P.O. BOX 11400 • OKLAHOMA CITY, OK 73136-0400 • OFFICE: (405) 425·2500 • FAX: (405) 425·2064 WWW.doc.9tate.ok.us
G)reCYCled paper

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 18 of 40

SENDER: COMPLETE THIS SECTION
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B. Received by (Printed Name)

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Yes

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Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 19 of 40

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Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 20 of 40

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) GLENN D. ANDERSON; and (2)

§

CHARLES F. TAYLOR,

§

§

Plaintiffs,

§

§

v.

§

§

(1) EDWARD L. EVANS, in his capacity §

as Interim Director Oklahoma Department §

of Corrections; (2) MIKE MULLIN, in §

his capacity as Warden, Oklahoma State §

Penitentiary; and (3) ROBERT L.

§

RAINEY, (4) W. MARK LUTTRULL, §

(5) ERNEST GODLOVE, (6) DAVID C. §

HENNEKE, (7) TED LOGAN, (8)

§

BEVERLY YOUNG, and (9) EARNEST §

D. WARE, in their capacities as members §

of the Oklahoma Board of Corrections; and §

(10) - (60) DOES 1-50, UNKNOWN

§

EXECUTIONERS, in their capacities as §

Employees and/or Agents ofthe Oklahoma §

Department of Corrections,

§

§

Defendants.

§

Case No. CIV _ _ _ _ _ _ __ COMPLAINT

COMPLAINT I. PRELIMINARY STATEMENT 1. Plaintiffs Glenn Anderson and Charles Taylor are prisoners sentenced to death by the State of Oklahoma. By statute, Oklahoma employs lethal injection as its method of execution. The Defendants and the Oklahoma Department of Corrections [hereinafter "ODOC"] have designed a procedure for carrying out Oklahoma's statutory method of execution that purports to induce death only after a condemned prisoner has been rendered unconscious and

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 21 of 40
unable to experience pain. In reality, the policies and practices devised by the Defendants and the ODOC unnecessarily risk conscious suffering and pain during execution and deliberately ignore and are indifferent to the health and safety of condemned prisoners. 2. This action is brought pursuant to Title 42, section 1983, of the United States Code for violations and threatened violations of the rights of Plaintiffs to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution, to be free from arbitrary and capricious Department of Corrections procedures and protocols in violation of the Fifth and Fourteenth Amendments of the United States Constitution, and to be free from the deliberate indifference of the Defendants toward Plaintiffs' health and safety in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Plaintiffs seek equitable and injunctive relief. 3. This lawsuit does not challenge the fact of Plaintiffs' sentences of death, nor does it challenge the constitutionality of Oklahoma' s statute requiring execution by lethal injection.
II. PLAINTIFFS 4. Glenn Douglas Anderson is a United States citizen and resident of the State of Oklahoma.
He is currently a prisoner under the supervision of the Oklahoma Department of Corrections, ODOC Number 256332, who is sentenced to death by lethal injection. Mr. Anderson is held at H-Unit of the Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 745020097. Mr. Anderson does not have a scheduled execution date. 5. Charles F. Taylor is a United States citizen and resident of the State of Oklahoma. He is currently a prisoner under the supervision of the Oklahoma Department of Corrections, ODOC Number 211013, who is sentenced to death by lethal injection. Mr. Taylor is held at H-Unit of the Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 745020097. Mr. Taylor does not have a scheduled execution date.
2

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 22 of 40
III. DEFENDANTS 6. Defendant Edward L. Evans is the Interim Director of the Oklahoma Department of
Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma, 73111. 7. Defendant Mike Mullin is the Warden of Oklahoma State Penitentiary at P.O. Box 97,
McAlester, Oklahoma, 74502-0097. 8. Defendants Robert L. Rainey, W. Mark Luttrull, Ernest Godlove, David C. Henneke, Ted
Logan, Beverly Young, and Earnest D. Ware, are the members of the Oklahoma Board of Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma, 73 I 1I. 9. Defendants Unknown Executioners are the officers, agents, employees, and successors in office, along with those acting in concert with them, of the Oklahoma Department of Corrections who will assist in carrying out the executions of Plaintiffs. Plaintiffs do not yet know the identities of the Unknown Executioners. 10. Defendants are acting under color of State law in establishing and designing the ODOC execution policies and protocol and will act under color of State law in selecting and administering to Plaintiffs chemicals in amounts, in combinations, and by methods that will unnecessarily risk conscious suffering and pain in the execution of a sentence of death and/or which are deliberately indifferent to the health, welfare, and safety of Plaintiffs.
IV. JURISDICTION AND VENUE 11. This action arises under 42 U.S.c. § 1983 to redress the deprivation under color of state law
of rights, privileges, and immunities secured by the Constitution of the United States. The rights sought to be redressed are guaranteed by the Eighth, Fifth, and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction over this complaint pursuant to 28 U.S.C. § 1331 (federal question); § 1343 (civil rights violations); § 2201 (declaratory relief); and § 2202 (further relief).
3

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 23 of 40
12. Venue is proper in this Court under 28 U.S.c. § 1391 (b) because Edward L. Evans carries out the official business of the Depatiment of Con-ections from the Department's administrative headquarters located in Oklahoma City, Oklahoma, and a substantial portion of the events giving rise to this claim have occun-ed and will occur within this district as part of the official business of the Department of Con-ections. All Defendants reside within the State of Oklahoma and Interim Director Edward L. Evans, and Oklahoma Board of Con-ections members Ernest Godlove, David C. Henneke, and Earnest D. Ware reside in this district. V. EXHAUSTION OF ADMINISTRATIVE REMEDIES
13. Plaintiffs have exhausted their administrative remedies as required under the Prison Litigation Reform Act, 42 U.S.c. § I997e, by following the procedure set forth in the Oklahoma Department of Con-ections Inmate/Offender Grievance Process. The Oklahoma Department ofCon-ections has denied all relief requested by Plaintiffs and Plaintiffs aver and assert that all conditions precedent for bringing this suit have been met. Copies of Plaintiffs' requests for and denials of administrative relief are appended hereto as Attachments A and B. VI. FACTUAL ALLEGATIONS
14. Plaintiffs reallege and incorporate paragraphs I to 13 as if fully set out herein. 15. Lethal injection has been promoted as a peaceful way to induce death, like euthanizing a pet
- a single injection, quick unconsciousness, no struggling or movement, and death within seconds. With frightening regularity, however, that is not what happens in Oklahoma. 16. Scott Carpenter was executed by the State of Oklahoma on Thursday, May 8, 1997. At 10 minutes after midnight, as lethal drugs entered his body, witnesses report that Mr. Carpenter "moaned loudly. He exhaled and then his body convulsed. As the drugs began to take
4

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 24 of 40
effect, [Mr.] Carpenter made loud rasping sounds and continued to convulse his muscles [and] visibly tensed as he struggled to breathe as the color drained from his face."] Four minutes after the execution began, Mr. Carpenter "[t]urned a deep shade of blue.,,2 Mr. Carpenter "let out a guttural moan, gasped for breath and convulsed violently, stretching the belt that strapped his body to the table as his body arched upward,,,3 his body "shuddered with 18 violent convulsions, followed by eight lesser ones.,,4 Twelve minutes after the execution began, Mr. Carpenter was pronounced dead. 17. Robyn Parks was executed by the State of Oklahoma on Tuesday, March 10, 1992. At fortytwo minutes after midnight, the execution began. Mr. Parks said 'Tm still awake."s "Less than two minutes after Warden Dan Reynolds ordered the execution to begin, Parks' body began bucking under straps that held him to a gurney. He spewed out all the air in his lungs, spraying a cloud of spit.,,6 Witnesses said "[i]t was overwhelming, stunning, disturbing."? Eleven minutes after the execution began, Mr. Parks was pronounced dead. 18. Loyd LaFevers was executed by the State of Oklahoma on Tuesday, January 30, 2001. As the lethal drugs began to flow, Mr. LaFevers "laid his head back, and he began to go into convulsions, gasping for breath, his chest heaving."g He "started raising off the bed" and "[t]he rising of his chest and the burst of air happened together over and over, as if he were gasping.,,9 "[H]is eyes stayed open."]O "[H]e appeared to have a bruise and swelling in his
] Carlton M. Lane, 22-year-old executedJar EuJaia area murder, McALESTER NEWS-CAPITAL, May 8, 1997, at 1. 2Id. 3 Michael Smith, Execution oJKiller a Quiet One, THE TULSA WORLD, May 9,1997, at AIS. 4 Anthony Thornton, State Fulfills Killer's Wish For Execution, THE DAILY OKLAHOMAN, May 8, 1997, at 1. S Kandra Wells, Parks Body Take To OKC After Execution, McALESTER NEWS-CAPITAL, Mar. 10,1992, at 2. 6 Wayne Green, 11 Minutes That Took A Lifetime, TULSA WORLD, Mar. 2,1992, at Al3. 7 Id. B Howard Pankratz, Leadville Senator Witnesses Execution ojAunt's Killer, DENVER POST, Jan. 31, 2001, at BOI. 9 Dec!. Catherine M. Burton (Feb. 19,2004). ]0 Dec!. Patrick J. Ehlers (Mar. 1,2004).
5

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 25 of 40
left ann ... where he had an IV tube."ll After 6 minutes of convulsions, Mr. LaFevers was dead. 19. Unless modified, the policies and practices followed by the ODOC, which are on infonnation and belief substantially the same today as were used in the executions of Mr. Carpenter, Mr. Parks and Mr. Lafevers, will unnecessarily place Plaintiffs at risk of suffering the same excruciating torturous deaths as were experienced by Mr. Carpenter, Mr. Parks, and Mr. LaFevers. A. Oklahoma's Lethal Injection Legislation and How It Came into Being 20. After years of a court ordered moratorium on the death penalty, in 1976 the United States Supreme Court once again upheld capital sentencing procedures. 21. The problem with restarting executions in Oklahoma was that its electric chair, last used in 1966, had fallen into disrepair. The State looked for an alternative. 22. In what became the first proposal in the nation for execution by lethal injection, the Oklahoma Legislature enacted a statute prescribing that "[t]he punishment of death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashortacting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice." OKLA. STAT. tit. 22, § 1014 (A) (emphasis added). 23. The statute prescribes no specific drugs, dosages, drug combinations, manner of intravenous line access, or certifications, training, or licensure for those who participate in executions. All of the details for carrying out executions were left up to the Department of Corrections. B. How Executions Are Performed iu Oklahoma 24. On infonnation and belief, executions by lethal injection in Oklahoma are perfonned in
11 Dec!. Patrick J. Ehlers (Mar. I, 2004). 6

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 26 of 40
the following way: 25. The condemned prisoner is strapped to a gurney. 26. Phlebotomists insert two intravenous ("IV") lines to the condemned prisoner, one into
each arm. 27. When the curtains rise on the execution chamber, the IV lines can be seen leaving the
condemned prisoner, draped across the floor of the chamber and passing through a hole in the wall to the room where the executioners wait. Last statements are made, and then a prison official orders the execution to begin. 28. Three lay-executioners then begin plunging eleven hand-held syringes in a confusing and complicated sequence prescribed by the ODOC protocol. First one drug, then a saline flush, then the next drug, alternating the drugs between the left and right arms. It is not known who, if anyone, directs the sequence of drug administration for the executioners. 29. The drugs purportedly administered are: Thiopental (to cause unconsciousness);!2 Vecuronium Bromide (to cause paralysis and to stop all movement including respiration); and Potassium Chloride (to stop the heart). 30. The putative drugs dosages are:
• 1200 milligrams ["mgs"] Thiopental in the left arm IV line; • Saline in the left arm IV line; • 20 mgs Vecuronium Bromide in the right arm IV line; • Saline in the right arm IV line; • lOa meqs (milliequivalents) Potassium Chloride in the left arm IV line; and • Saline in the left arm IV line. 31. The process is then repeated by injecting a second round of drugs: • 100 meqs Potassium Chloride in the right arm IV line;
"Thiopental is also known as Sodium Pentothal or Sodium Thiopental and will be referred to as Thiopental in this Complaint.
7

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 27 of 40
• Saline in the right arm IV line. • 1200 mgs Thiopental in the left arm IV line; • Saline in the left arm IV line • 20 mgs Vecnronium Bromide in the right arm IV line; and • Saline in the right arm IV line. l3 32. The process is intended to deliver two doses of Thiopental through the left arm IV line, two doses of Potassium Chloride (one dose in each arm IV line), and two doses of Vecuronium Bromide in the right arm IV line. 33. When an electrocardiogram monitor signals the cessation of electrical activity in the heart, a physician manually checks the condemned prisoner and pronounces death. 34. This process recklessly subjects condemned prisoners to significant and utterly unnecessary risks that they will be tortured to death. C. The Risks of ODOC's Lethal Injection Process 35. There are a number of risks associated with the ODOC's execution process which include, but are not limited to, the following: (a) First, in violation of medically approved procedures, the process fails to employ properly trained persons to carry out what is, in effect, the surgical induction of anesthesia. (b) Second, it arbitrarily and unnecessarily uses drugs and drug dosages that create significant risks that condemned prisoners will suffer completely unnecessary pain during execution. (c) Third, it mandates a sequence of drug administration that delays administration of a portion of the intended anesthetic until after the condemned prisoner is, or should be, dead. (d) Fourth, it delivers drugs through two alternating IV lines, impairing control over the timing and sequence of drug delivery and increasing the risk of drug administration
JJ Affidavit of Warden Mike Mullin, Jan. 12,2004.
8

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 28 of 40
failure. a. Because the Drugs Used to Cause Death Are Painful, it Is Necessary That Qualified Persons Create and Maintain IV Access to Ensnre Adeqnate Anesthesia
36. The drugs used to cause death in an execution by lethal injection are painful. When a concentrated dose of Potassium Chloride is injected peripherally into the vein of an ann it feels like a fire traveling through the vein to the heart. Death by Potassium Chloride poisoning is known to be so excruciating that the American Veterinary Medical Association ("AVMA") prohibits use of Potassium Chloride as the sole agent of euthanasia and, if it is to be used at all, only used after the subject has reached a surgical plane of anesthesia.
37. When a neuromuscular blocking agent is administered, it paralyzes all voluntary muscles. Respiration is impossible. It locks the recipient in a chemical tomb, where he is conscious, but unable to signal distress and unable to breath, and eventually dies by asphyxiation. Death by asphyxiation involves intense, visceral pain and has, as a method of execution, been ruled unconstitutional as violative of the Eighth Amendment.
38. The risks of neuromuscular blocking agents are well known. The AVMA prohibits the use of neuromuscular blocking agents in combination with the barbiturate anesthetics. The State of Oklahoma prohibits the use of curariform neuromuscular blocking drugs in the euthanization of animals.
39. Lethal injection is only humane if an anesthetic is administered which induces unconsciousness before neuromuscular blockers stop respiration and Potassium Chloride stops the heart.
40. Administration ofIV anesthesia requires proficiency at achieving and maintaining IV access. But the sources of error are many: (a) IV catheters must be inserted into a vein and not through the vein into tissue. If a 9

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 29 of 40
catheter is incorrectly placed, the drugs flowing through the IV lines can infiltrate the tissue surrounding the catheter rather than correctly entering the vein. (b) In Oklaboma, because two alternating IV lines are used to administer drugs, two separate IV catheters must be inserted and both connections to the condemned prisoner's veins maintained throughout the execution process. (c) Once inserted, the catheters are connected with tubing to IV fluid bags. All mechanical components of the IV system must operate correctly for the drugs to be correctly delivered, but errors commonly occur: IV tubing sometimes leaks or becomes disconnected, or the drugs are introduced to the IV system in the wrong direction, preventing the drugs in the IV line from reaching the patient in the intended concentrations, or from reaching the patient at all. (d) Oklahoma employs unqualified persons to create IV access. The phlebotomists used by the ODOC to insert IV catheters in condemned prisoners are trained to collect blood; they are not competent to administer drugs intravenously and are not expert in the process of inserting and maintaining IV catheters, a fundamentally different and far more difficult task than drawing blood. (e) On information and belief, no one monitors the IV catheters throughout executions, leaving open the possibility that IV catheters can become disconnected throughout the process. (f) In the event that a phlebotomist cannot achieve venous access in a peripheral vein in a hand or arm the ODOC is prepared to create venous access through the invasive and painful processes of inserting a percutaneous central line (tunneling under the skin to reach the subclavian or central vein) or performing a surgical cut down (where a vein is exposed by incision or catheritized). Because these techniques of venous access require
10

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 30 of 40
much more skill and training and are far more invasive than peripheral vein access, they are normally performed in highly equipped emergency rooms or operating theatres. (g) The ODOC has failed to specifY who has performed these procedures in the past (and there has been at least one central line venous access performed) or who will perform them in the future, if necessary, and failed to guarantee that those performing such measures will have the requisite training to protect condemned inmates from the unnecessary pain caused by these procedures if they are not performed in the appropriate manner. (h) On information and belief, Oklahoma uses three lay-executioners to plunge eleven hand held syringes in a confusing and complicated sequence to deliver the deadly drugs. The use of untrained persons to plunge syringes risks error in the sequence and rate of drug administration, IV line failures because the executioners cannot observe the IV site and monitor the condition of the IV catheter for things like infiltrations and blowouts and are not trained to interpret things like pressure feedback on the IV lines. 41. Training and experience are essential to the success of the execution as a humane process. The ODOC's personnel and executioners are not properly trained in the art of administering intravenous drugs.
b. The Chemical Cocktail Chosen by the ODOC Creates an Unnecessary Risk of Flawed Executions Iuvolving Conscious Sufferiug
42. The ODOC has arbitrarily selected three drugs that unnecessarily risk conscious suffering in the dosages, combinations, and procedures which its executioners use.
43. The first drug, Thiopental, is an ultra-short acting barbiturate which acts to depress the central nervous system to produce unconsciousness and anesthesia. Thiopental derives its utility in surgical procedures from its rapid onset and rapid redistribution through the body at
II

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 31 of 40
low (surgical) doses. Typically, Thiopental is used in the induction phase of anesthesia to temporarily anesthetize patients for sufficient time to, for example, intubate the trachea. Thiopental is a drug which requires skill to administer and should only be administered by a person qualified in the use of intravenous anesthetics. 44. If it is necessary to maintain a patient in a surgical plane of anesthesia for longer than just a few minutes, drugs other than Thiopental are typically used. If Thiopental is going to be used not only to induce, but also to maintain, a surgical plane of anesthesia, a qualified person must be present to assure that the Thiopental has been correctly administered and is maintaining the patient in a state of unconsciousness. 45. On infonnation and belief, the ODOC protocol does not require any person to monitor the plane of anesthesia during execution. 46. The ODOC has arbitrarily and needlessly selected a dose of Thiopental that is lower than reliably guarantees a surgical plane of anesthesia for the duration of executions. The probability of inducing unconsciousness with Thiopental is dose dependent. Dosage is, in turn, weight dependent. For example, a 1200 mg dose to a 100-pound man is like a 600 mg dose to a 200-pound man. Other jurisdictions in the United States typically employ larger doses of Thiopental than are used in Oklahoma. For example, California administers 5000 mg of Thiopental. Phannacokinetic studies which model the uptake, distribution, and elimination of a 1200 mg dose of Thiopental on a range of body weights reveal that a 1200 mg dose of Thiopental is low enough to risk consciousness in some condemned prisoners during the course of the execution, even if the drug is fully and effectively delivered. 47. The second drug, Vecuronium Bromide, is a neuromuscular blocking agent and a curariform drug. Neuromuscular blocking agents are used clinically to induce skeletal muscle relaxation to facilitate tracheal intubation or to suppress spontaneous respiration.
12

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 32 of 40
48. Neuromuscular blocking agents must be administered with great care because they have no effect on consciousness or tbe ability to sense and perceive pain. Unless consciousness is assessed before the administration of the neuromuscular blocker. the paralysis induced in tbe patient will prevent anyone, even a person with advanced medical training, from ascertaining whether a patient is awake and capable of experiencing pain.
49. Neuromuscular blocking agents are typically accompanied by product warnings that require the drugs to be administered by experienced clinicians who are familiar with tbe drug's actions and the possible complications of its use and cautioning tbat the drugs have no known effect on consciousness, pain threshold, or cerebration. Therefore, administration must be accompanied by adequate anesthesia or sedation.
50. The effect of neuromuscular blocking agents in immobilizing patients and masking external indications of their pain is well known. Patients who have been administered neuromuscular blocking agents with inadequate anesthesia have been conscious during surgery and have reported terrifYing and torturous experiences where tbey were alert, experiencing pain, yet utterly immobilized and unable to signal their distress.
51. The consequences of erroneous administration of neuromuscular blocking agents is so profound that at least eighteen states, including Oklahoma, have banned by statute the use of such drugs in tbe euthanization of animals. The AVMA never permits the use of neuromuscular blocking agents in combination with barbiturate anestbetics. The ODOC has tbus settled on a protocol and procedure to kill the State's condemned prisoners that is considered too risky and dangerous for the euthanization of pets. There is no need to risk the conscious suffocation of these prisoners as a result of the administration of neuromuscular blocking agents. Other drugs are available to satisfY Oklahoma's statutory requirement for a "paralytic agent" that do not affect respiration. Using these alternate drugs would eliminate
13

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 33 of 40

the risk that a condemned prisoner will consciously asphyxiate. 52. The third drug, Potassium Chloride, contains essential blood ions and is typically
administered in trace amounts as a necessary electrolyte. While a certain potassium level is important for normal cardiac electrical activity, a rapid increase in blood concentration of potassium causes cardiac arrest. Injection of concentrated potassium activates sensory nerve fibers, causing severe pain as the drug travels through the venous system. There is universal medical agreement that, without anesthesia, an injection of a Potassium Chloride overdose causes excruciating pain. 53. The American Veterinary Medical Association is so confident that death by Potassium Chloride will cause unnecessary suffering that it prohibits its use as a euthanasia agent unless the practitioner administering the Potassium Chloride has the skill and training to assure that the subject to be euthanized has reached a surgical plane of anesthesia. 54. The Oklahoma statute does not require the administration of Potassium Chloride and the ODOC has arbitrarily and needlessly added Potassium Chloride (which is universally acknowledged to be painful) to the protocol when alternative drugs would serve the statutory function of a paralytic agent.

c.

The Order of Drug Administration Reveals the ODOC's Flawed

Understanding of the Execution Process

55. The ODOC protocol delays administration of a second dose of anesthetic agent to

condemned prisoners until after the prisoner has been paralyzed by a neuromuscular blocker

and twice administered massive overdoses of Potassium Chloride that should already have

killed within seconds of reaching the prisoner's heart. It should be self-evident that

anesthetics should be administered before the other drugs in the execution sequence because

it is unnecessary to administer them after death. However, the ODOC does not appear to

14

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 34 of 40
know that the second dose of anesthetic in its process comes too late to alleviate the pain and suffering of the condemned prisoner. The order of drug administration in Oklahoma is arbitrary and capricious, without justification, and unnecessarily risks conscious suffering.
d. The Two-Line IV Method Creates an Unnecessary Risk of Flawed Executions That Result in Conscious Suffering
56. Untrained personnel, the drugs selected, and the order of drug administration, each add to the risk of flawed executions in which prisoners consciously suffer pain. When these factors are combined with the two-line IV method of drug delivery employed by the ODOC, the risks rise exponentially. By using this two-line method of drug delivery, not used by any other state in the nation, the ODOC doubles the risks ofIV line failures. Such failures can include, but are not limited to: IV line blockages; infiltrations in which the intravenous injection will diffuse into the surrounding tissue rather than be delivered into the vein; and other similar eventualities that result in an ineffective delivery of one or more of the drugs.
57. There is a grave risk in the ODOC protocol that the right IV line will remain open (effectively delivering the neuromuscular blocker and Potassium Chloride) while the left line is blocked or drug delivery is impeded. These circumstances would create a scenario in which the drug intended to achieve unconsciousness is not effectively delivered and the prisoner will be conscious when he is suffocated by having his respiration stopped and killed by having his heart stopped. There is reason to believe that just such eventualities have occurred during Oklahoma executions. D. Oklahoma Executions Have Gone Wrong a. Observed IV Line Access Problems
58. The ODOC has failed to achieve successful IV access to condemned prisoners. In 2001, witnesses noticed swelling and bruising on Mr. LaFevers's left (Thiopental) arm consistent
15

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 35 of 40
with an IV infiltration which prevented effective delivery of the anesthetic intended to alleviate the inevitable pain accompanying the administration of a neuromuscular blocking agent and Potassium Chloride. 59. Autopsy reports show that, on at least seven occasions, executed prisoners have had multiple acute puncture marks in addition to the IV catheter sites, reflecting that the ODOC has required multiple attempts to achieve venous access. In at least one execution it was impossible to achieve peripheral venous access and a central line was required. 60. IV access irregularities support the conclusions that personnel carrying out executions are inadequately trained and qualified.
b. Failure to Administer All Drugs 61. Autopsy reports reveal at least two cases in which full (unused) syringes of the anesthetic
Thiopental have accompanied bodies to the medical examiner's office. On information and belief, these data indicate that the ODOC has, on several occasions, arbitrarily and unnecessarily failed to administer all of the required and intended dose of Thiopental risking inadequate anesthesia and conscious suffering.
c. Witnesses Reports of Condemned Prisoner Reactions Suggest Inadequate Anesthesia
62. There are many reports of prisoner reaction to the execution process that are inconsistent with the rapid and complete onset and maintenance of anesthesia. As previously discussed, the Carpenter, LaFevers, and Parks executions were accompanied by witness observations of prisoner response to the execution protocol that is inconsistent with effective administration of the execution protocol.
63. Witnesses to other executions also report prisoner comments like "I can taste it" and shaking and convulsions that are also inconsistent with the rapid and complete onset and
16

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 36 of 40
maintenance of anesthesia. d. Analytical Data Suggests Inadequate Anesthesia
64. Postmortem Thiopental blood concentrations, in some cases, cannot be reconciled with consistent administration of Thiopental and, in some cases, are inconsistent with antemortem unconsciousness. E. The Defendants and the ODOC Knew, Or Should Have Known, of Executions Involving the Risk of Conscious Suffering Yet Have Failed to Correct the Execution Process to Minimize That Risk
65. The Defendants and the ODOC knew, or should have known, that tbeir execution process is flawed in ways tbat entail risks of conscious suffering, but have deliberately ignored those risks and failed to make practicable modifications in the process. The ODOC policy statement number OP-090901, dated April 12, 1978 (date issued) and May I, 1978 (effective date) indicates that the Defendants and the ODOC have been aware since 1978 that adequate IV access is essential to a humane execution, but nevertheless have employed persons unqualified to achieve IV access as part of tbe execution process and has failed to employ qualified persons to monitor IV access and tbe plane of anesthesia throughout the execution process.
66. The Defendants and the ODOC knew, or should have known, since 1978 that drugs other than neuromuscular blocking agents or curariform derivatives can serve the statutory requirement of paralytic agents, but have nevertheless continued to employ drugs known to risk conscious suffering.
67. The Defendants and the ODOC knew, or should have known, of botched executions involving risks of conscious suffering, for example, the Carpenter execution, but have nevertheless continued to employ drugs, dosages, chemical combinations, and procedures that risk tbe needless infliction of conscious suffering. Ron Ward, who was Warden of the 17

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 37 of 40
Oklahoma State Penitentiary during the Scott Carpenter execution, said that "There was probably more body action with this one than I've seen"14 and acknowledged that the Carpenter execution took longer than normal. F. The Defendants and the ODOC Have Arbitrarily and Capriciously Modified
the Execution Processes Subjecting Condemned Prisoners to Risks of Conscious Suffering 68. The Defendants and the ODOC have, since 1990, arbitrarily and capriciously modified the execution processes to change, for example, the drugs used, the drug amounts, number of IV lines used to deliver drugs, and personnel involved, exposing condemned prisoners to risks of conscious suffering. 69. The sum of the available execution data (witness reports, postmortem Thiopental levels, execution duration, weight, and other data) indicate that the ODOC protocol has caused a high frequency of failure to effectively anesthetize condemned prisoners for the duration of executions. 70. Botched executions that risk conscious suffering are the direct and inevitable result of a protocol cobbled together in secret by people who are not qualified to conduct what is essentially the induction of anesthesia. The ODOC protocol is flawed at nearly every turn in that it: (1) orders executioners to take the bizarre step of anesthetizing those who are, or should be, already dead; (2) uses unqualified personnel like phlebotomists to insert IV catheters; (3) uses dangerous and unnecessary drugs (like neuromuscular blockers) in a reckless manner; (4) fails to take the simple step of assuring that a surgical plane of anesthesia and an actual state of unconsciousness have been achieved and will continue for the duration of the execution before administering painful drugs; (5) administers a dose of
14 Anthony Thornton, After Apologizing, Killer Dies With Calm Dignity, THE DAILY OKLAHOMAN, May 9, 1997, at 9.
18

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 38 of 40
Thiopental that is unnecessarily dangerously low; and (6) introduces drugs through two IV lines unnecessarily complicating the execution process and unnecessarily risking harm. 71. The consequence of the ODOC protocol is that people are suffering when they are executed in Oklahoma. They are suffering for more than the transitory period necessarily attendant to any death. People are suffering for prolonged periods as result of completely avoidable problems in protocol and procedure. It is possible to conduct execution by lethal injection in a manner that both complies with Oklahoma's statute and is humane, but the Defendants and the ODOC have arbitrarily, capriciously, and unnecessarily devised a protocol for carrying out executions by lethal injection that does not do so.
VII. CLAIMS 72. Plaintiffs reallege and incorporate paragraphs I to 71 as if fully set out herein. 73. By subjecting Plaintiffs to an arbitrary, capricious and irrational method of execution that
creates an unnecessary and significant risk of inflicting agonizing and prolonged pain, and by designing and administering a process under which they will inject Plaintiffs with chemicals in amounts, combinations, and by a protocol or protocols that unnecessarily risk conscious suffering and pain in the execution of a sentence of death, Defendants deprive Plaintiffs of their rights under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution to be free from cruel and unusual punishment and to be free from arbitrary and capricious processes. 74. By sUbjecting Plaintiffs to an arbitrary, capricious, and irrational method of execution that creates an unnecessary and significant risk of inflicting agonizing and prolonged pain, Defendants with deliberate indifference to Plaintiffs' serious medical needs violate Plaintiffs' rights to be free from cruel and unusual punishment and the unnecessary and wanton infliction of pain in violation of the Fifth, Eighth and Fourteenth Amendments of the United
19

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 39 of 40

States Constitution.

VIII. PRAYER FOR RELIEF

75. Plaintiffs reallege and incorporate paragraphs 1 to 74 as if fully set out herein.

76. Wherefore, Plaintiffs pray as follows:

77. That this Honorable Court issue a judgment declaring that the Defendants protocols, policies,

practices, and acts and omissions as described herein violate Plaintiffs' rights as guaranteed

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

78. That this Honorable Court permanently enjoin Defendants, their officers, agents, employees,

and succeSSor in office, along with those acting in concert with them, from engaging in the

unlawful practices described herein;

79. That this Honorable Court retain jurisdiction over this cause until the Court's order is carried

out; and

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

circumstances.

Respectfully submitted this 20th day of July, 2005, by and through,

sl Lisa S. McCalmont Lisa S. McCalmont Oklahoma Bar No. 17096 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK. 73102 (405) 609-5930 (405) 609-5952 lisa_mcca1mont@fd.org

20

Case 5:06-cv-00587-F Document 1 Filed 05/30/2006 Page 40 of 40
VERIFICATION T, Lisa S. McCalmont, hereby declare: 1. I am a member of the State Bars of Oklahoma and Texas and am admitted to practice before the all of the Federal District Courts of Oklahoma, the United States Court of Appeals for the Tenth Circuit, the United States Supreme Court. 2. I have reviewed the foregoing complaint. I have personal knowledge of the matters set forth in the complaint, except as otherwise indicated, and could and would competently testifY to them if called upon to do so. I verifY that all of the alleged facts that are not otherwise supported by citations to the records or declarations attached to the complaint are true and correct to my own knowledge, except as to any matters stated in it on information and belief, which I am informed and believe are true and correct. I declare under penalty of perjury under the laws of the State of Oklahoma and the United States of America that the foregoing is true and correct. Executed on July 13,2005, in Oklahoma City, Oklahoma.
sl Lisa S. McCalmont Lisa S. McCalmont Oklahoma Bar No. 17096 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK. 73102 (405) 609-5930 (405) 609-5952 lisa_mccalmont@fd.org
21

 
 Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 1 of 42

UNITED STATES DISTRICT COURT FOR THE \VESTERN DISTRICT OF OKLAHOlVIA

JOHN ALBERT BOLTZ,

)

)

Plaintiff,

)

)

vs.

)

)

(1) JUSTIN JONES, in his capacity as )

Director of the Oklahoma Department )

of Corrections; (2) MARTY SIRMONS, )

in his capacity as Warden, Oklahoma State)

Penitentiary; (3) ERNEST GODLOVE, )

(4) DAVID C. HENNEKE, (5) TED

)

LOGAN, (6) W. MARK LUTTRULL, )

(7) ROBERT L. RAINEY, (8) ERNEST )

D. WARE, and (9) BEVERLY YOUNG, )

in their capacities as members of the

)

Oklahoma Board of Corrections, and

)

(10)-(60) DOES 1-50, UNKNOWN

)

EXECUTIONERS, in their capacities as )

Employees and/or Agents of the Oklahoma)

Department of Corrections.

)

)

Defendants.

)

Case No. _ _ _ _ _ __

PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PERMANENT
INJUNCTION AND BRIEF IN SUPPORT
(Death Penalty with Execution Date of Thursday, June 1, 2006)
Plaintiff, John Albert Boltz, moves for a Temporary Restraining Order and/or
a Permanent Injunction against the Defendants to prevent them from carrying out

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 2 of 42
his execution by lethal injection in an unconstitutional manner. This Motion is made pursuant to Rule 65, Federal Rules of Civil Procedure. In support of this Motion, the Court is shown the following:
PROCEDURAL BACKGROUND
1. Appellant, John Albert Boltz, is an Oklahoma death row inmate facing an execution date of Thursday, June 1, 2006.
2. The undersigned counsel was appointed on February 8, 1999, by the United States District Court for the Western District of Oklahoma to represent Boltz pursuant to 21 U. S. C. § 848(q), and has represented Boltz continuously since that time.
3. The Oklahoma Court of Criminal Appeals, upon application of the Oklahoma Attorney General, set Boltz's execution date for Thursday, June 1,2006.
4. On April 17, 2006, Boltz filed a pleading in the United States District Court for the Western District of Oklahoma titled "PETITIONER'S APPLICATION FOR THE APPOINTMENT OF COUNSEL FOR STATE CLEMENCY AND OTHER PROCEEDINGS; AND FOR AUTHORIZATION FOR FUNDS FOR INVESTIGATIVE SUPPORT."
5. In this Application, Boltz sought specifically an order authorizing the expenditure of attorney's fees under § 848(q) for counsel to pursue federal
Page 2 of 10

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 3 of 42
civil rights litigation attacking the constitutionality of Oklahoma's method of execution (lethal injection) as violating the Eighth Amendment. 6. This Court, through the Hon. Vicki Miles-LaGrange, granted most of the relief requested by Boltz in the Application but held that attorney's fees for civil rights litigation to attack the method of execution is not authorized by § 848(q); and the court therefore denied Boltz's request for funding to draft and file such litigation on his behalf. See attached Exhibit "1." 7. The undersigned counsel has subsequently drafted and filed, contemporaneously with this Motion, a Complaint challenging the constitutionality of the lethal injection protocol which will be used against Plaintiff the day after tomorrow. 8. The Complaint drafted by the undersigned counsel on behalf of Plaintiff raises the same legal claims as the Complaint of the Plaintiffs in Anderson et al. v.
Evans et aI., No. ClV-OS-082S-F, currently pending in this Court. Plaintiff
incorporates the factual and legal claims raised in that Complaint as more fully set forth in attached Exhibit "2." 9. The Protocols used by the State are set forth on the Department of Corrections web site and is attached as Exhibit "3." According to the DOC's official web site, the "Execution Process" is as follows:
Page 3 of 10

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 4 of 42

10. Drugs used: Sodium Thiopental causes unconSCIOusness. Vecuronium

Bromide stops respiration. Potassium Chloride stops heart. "Two

intravenous lines are inserted, one in each arm. The drugs are injected by

hand held syringes sequentially into the intravenous lines, alternating between

the two lines. The sequence is in the order that the drugs are listed above.

Saline is also injected after each drug is injected. Three executioners are

utilized, with each one injecting one of the drugs." [d.

11. Boltz alleges that a significant risk of excessive pain and suffering awaits him

under the current execution protocols. Such pain and suffering will violate

Boltz's constitutional rights to be free from cruel and unusual punishment

under the Eighth and Fourteenth Amendments to the United States

Constitution; therefore Boltz requests that this Court enjoin the Defendants

from executing him until such time as proper and humane procedures are in

place to do so.

BRIEF IN SUPPORT

This Court has the authority to grant a Temporary Restraining Order and/or

a Permanent Injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure.

Boltz will be harmed irreparably, and permanently, in the event that such an

injunction is not granted.

Page 4 of 10

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 5 of 42
Injunctive relief is appropriate in light of recent developments in this area of the law, the injury that Boltz will sustain in the absence of Court intervention, and the likelihood of success on the merits.
A. Supreme Court Action.
In Nelson v. Campbell, 541 U.S. 637 (2004), the Supreme Court held that a
42 U.S.C. § 1983 civil rights action was an appropriate legal vehicle to challenge the State's use of a "cut-down" procedure requiring an incision into the arm of the condemned prisoner (or leg) in order to access his severely compromised veins; and that a prisoner in such a situation could properly use section 1983 to seek a temporary stay and permanent injunctive relief. The Court did not decide the "difficult question" of how to categorize method-of-execution claims generally. Id. at 645.
On January 25, 2006, the Supreme Court granted certiorari in a case that presented the question left open in Nelson and involved a death row inmate who had instituted a section 1983 case to challenge the method of lethal injection. Hill v. Crosby, No. 05-8794 (U.S., certiorari granted January 25,2006). The questions for which certiorari was granted are:
1. Whether a complaint brought under 42 U. S. C. § 1983 by a deathsentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the
Page 5 of 10

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 6 of 42

execution, is properly re-characterized as a habeas corpus petition

U U--....:I",- 1")0 llUC;l ~o

(i ,-,
.0.\......

'"Sr~.V:.'..1:,5. 1i"'"-t:)

2. Whether, under this Court's decision in Nelson, a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 U.S.c. § 1983?

The Supreme Court granted a stay of execution to Clarence E. Hill pending

resolution of these questions. Hill v. Crosby, _ U.S. _, 126 S.Ct. 1189 (January

25,2006). The Hill case was argued in the Supreme Court on April 26, 2006, and

is submitted for decision.

B. Lower Court Action.

Lower federal courts have found merit in enjoining states from executing

inmates who are actively challenging the lethal injection protocol via a section 1983

action. See Taylor v. Crawford, No. 06-1397 (8th Cir., April 27, 2006); Jackson

v. Taylor, No. 06-300-SLR (Dist. Del., May 9, 2006); Brown v. Beck, No. 06-CT-

3018-H (E.D. N.C., April 7, 2006); and Cooey v. Hill, No. 04-cv-1156 (S.D.

Ohio, April 28, 2006). The Sixth Circuit considered this issue en banc and, in a 7-6

decision, denied the stay. Alley v. Little, No. 06-5650 (6th Cir., May 16, 2006).

Particularly compelling is the statement below presented by the six dissenting judges

in Alley:

The Supreme Court recently heard oral arguments in Hill v. McDonough, No. 05-894, and is expected to issue a decision before the
Page 6 of 10

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 7 of 42
end of the current Term in June. The Court's decision will impact Alley's case either by allo"dng him or not allowing him to challenge the method of his execution pursuant to 42 U.S.C. § 1983. If Alley is executed on Wednesday and the Supreme Court decides Hill in his favor next month, this Court will effectively have locked the barn door after the horse has already escaped. If we uphold the stay entered by the district court, as I would, and the Supreme Court decides Hill against Alley's interests, Tennessee may proceed with the execution in June. To me, this balancing of interests weighs heavily in favor of upholding the stay entered by the district court.
Alley, supra, at 2 (Martin, J., dissenting). The same reasoning applies with equal
force to Boltz and a stay is necessary.
C. Pending Litigation in Oklahoma.
The Federal Public Defender's Office for the Western District of Oklahoma
has filed a federal civil rights complaint on behalf of two Oklahoma death row
inmates that challenges directly the state's lethal injection procedures. Glenn D.
Anderson and Charles F. Taylorv. Evans, et aI., No. CIV-OS-82S-F (W.D. Okla.).
This litigation is still pending in this Court and the Hon. Stephen P. Friot has denied
the State's motion to dismiss, and entered a scheduling order on March 3,2006, that
sets deadlines for the amendment of pleadings, discovery, and other pre-trial
litigation objectives. There is a likelihood of success on the merits as evidenced by: 1) the various
stays that have been entered in the lower federal district courts; 2) the sharp, 7 to
Page 7 of 10

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 8 of 42

6, split on this question in the Sixth Circuit; 3) the fact that the Supreme Court in

Nelson held that a section 1983 action was applicable to at least some challenges to

the lethal injection method of execution; and 4) the fact that the Supreme Court

issued a stay of execution in the Hill case pending resolution of the legal claims.

There is no risk of injury to other parties to this litigation as Boltz is housed in

Oklahoma's most secure prison facility and the public interest in resolution of this

issue is profound.

In addition, the Oklahoma Court of Criminal Appeals recognized that the

actual method of lethal injection as a means of execution, i.e., the exact drugs and

distribution method, is not mandated by statute; rather, corrections officials simply

conduct the execution as they see fit. Murphy v. State, 2005 OK CR 25, ,57 n. 23,

124 P.3d 1198. The Court claimed to be "disconcerted" at the allegations of just

how fallible the current execution protocol appears to be; yet, the Court gave short

shrift to Murphy's complaint, stating "UPetitioner's allegations have merit, we have

every reason to believe the necessary changes will be implemented." Id.

Boltz has every reason to believe that the necessary changes will not be

implemented. The same three drugs are in use, as evidenced by the DOC web site

outlining the execution process, and the same unqualified personnel are going to

administer them.

Page 8 of 10

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 9 of 42

CONCLUSION There is a serious question whether Oklahoma's lethal injection method comports with the Eighth Amendment. Resolution of this issue in an orderly and measured fashion is desirable, and thus this Court must issue an injunction of the EXECUTION pending the natural course and resolution of this litigation. DATED this 30th day of May, 2006.
Respectfully submitted,

/s/ James L. Hankins. Okla. Bar No. 15506

ATTORNEY AT LAW

Robinson Renaissance Building

119 North Robinson, Suite 320

Oklahoma City, Oklahoma 73102

Telephone:

405.232.1988

Facsimile:

405.272.9859

E-mail:

jh@coylelaw.com

Page 9 of 10

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 10 of 42

CERTIFICATE OF SERVICE

I certify that on this 30th day of May, 2006, a true and correct copy of the above PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER ANDIOR PERMANENT INJUNCTION AND BRIEF IN SUPPORT was sent vial first-class mail, postage pre-paid thereon, as well as e-mailed in PDF format to:

Preston Saul Draper, OBA #19797

Assistant Attorney General

2300 N. Lincoln Blvd., Room 112

Oklahoma City, Oklahoma 73105

Phone: 405.521.3921

Fax:

405.521.6246

e-mail: thc.docket@oag.state.ok.us.

lsi James L. Hankins

Page 10 of 10

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 11 of 42

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

JOHN ALBERT BOLTZ, Petitioner,
v.
MARTY SIRMONS, Warden, Oklahoma State Penitentiary,
Respondent.

}

}

}

}

}

Case No. CIV-99-1 56-M

}

}

}

}

}

ORDER

Before the Court is Petitioner's Application Jor the Appointment oj Counsel Jor State

Clemency and Other Proceedings; and For AuthorizationJor FundsJor Investigative Support (Dkt.

No. 147), requesting reappointment ofPetitioner' s counsel for clemency and other proceedings prior

to execution and requesting funds for investigative services to assist with the preparation of the

clemency hearing. Petitioner further requests from this Court authorization "to pursue a civil rights

attack in the federal courts against Oklahoma's implementation of lethal injection as a method of

execution."

Counsel was initially appointed to represent Petitioner in this habeas action pursuant to 21

u.S.c. § 848(q}. Section 848(q)(4)(B) states:

In any post conviction proceeding under section 2254 or 2255 oJTitle 28, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8), and (9). (emphasis added) The statute further provides that "unless replaced by similarly qualified counsel ... each

attorney so appointed shall represent the defendant throughout every subsequent stage of available

judicial proceedings . . . ." 21 u.s.c. § 848(q)(8}. The Tenth Circuit has held "that counsel

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 12 of 42

appointed under § 848(q)(4)(B) to represent state death row inmates in 28 U.S.C. § 2254

proceedings are authorized by the statute to represent these clients in state clemency proceedings

and are entitled to compensation for clemency representation." Hain v. Mullin, 436 F.3d 1168, 1170

(loth Cir. 2006). The Tenth Circuit's decision, however, pertained only to the scope of the statute

as it related to state clemency proceedings. !d. at 1173 n. 6.

In Nelson v. Campbell, 541 U.S. 637 (2004), the Supreme Court held that a petitioner's

request for a temporary stay of execution, later recharacterized as a request for preliminary

injunction, did not transform his conditions of confinement claim under 42 U.S.C. § 1983

challenging the method of execution into a challenge to the validity of his death sentence under 28

U.S.C. § 2244(b)(2), and, therefore, did not warrant dismissal of his complaint as an unauthorized

second or successive habeas petition. The Supreme Court's determination in Nelson clearly

distinguishes between a federal habeas action - an action in which present counsel has been

appointed and funded to represent Petitioner in the present case - and an entirely separate § 1983

action challenging the method of a state's execution. As expressed in Hain, the plain language of

§ 848(q) pertains to death row inmates seeking relief under § 2254, "a path exclusive to state

prisoners". Hain at 1171 (underlining added).

ACCORDINGLY, the Court does hereby Order

that Petitioner's request for reappointment of attorney James L. Hankins as counsel for Petitioner

is DENIED as moot, as his appointment continues from his previous appointment on February 8,

1999, and continues through "every subsequent stage of available judicial proceedings, including

... proceedings for executive or other clemency as may be available to defendant." 21 U.S.C. § 848

(q)(8). Counsel's appointtnent on behalfofPetitioner shall continue within the purview of28 U.S.C.

§ 84S(q)(S).

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 13 of 42
It is further Ordered that Petitioner's request for "authorization to pursue a civil rights attack in the federal courts against Oklahoma's implementation of lethal injection as a method of execution" as it pertains to funding is DENIED as unauthorized by 28 U.S.C. §§ 848(q)(4)(B) and (q)(8). Petitioner's request for funds to acquire investigative assistance to prepare the clemency case on behalf of Petitioner is GRANTED, subject to the provisions of 28 U.S.c. §§ 848(q)(9) and (q)(lO)(B), and the approval of the Tenth Circuit, if necessary.
The Court hereby Orders the matter referred to Magistrate Judge Gary Purcell for a litigation budget conference in reference to Petitioner's clemency proceeding and consistent with this Order, to be held on Wednesday, May 3, 2006 at 10:00 a.m.
IT IS SO ORDERED this 28'h day of April, 2006.

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 14 of 42

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) GLENN D. ANDERSON; and (2)

§

CHARLES F. TAYLOR,

§

§

Plaintiffs,

§

§

v.

§

§

(1) EDWARD L. EVANS, in his capacity §

as Interim Director Oklahoma Department §

of Corrections; (2) MIKE MULLIN, in §

his capacity as Warden, Oklahoma State §

Penitentiary; and (3) ROBERT L.

§

RAINEY, (4) W. MARK LUTTRULL, §

(5) ERNEST GODLOVE, (6) DAVID C. §

HENNEKE, (7) TED LOGAN, (8)

§

BEVERLY YOUNG, and (9) EARNEST §

D. WARE, in their capacities as members §

of the Oklahoma Board of Corrections; and §

(10) - (60) DOES 1-50, UNKNOWN

§

EXECUTIONERS, in their capacities as §

Employees and/or Agents of the Oklahoma §

Department of Corrections,

§

§

Defendants.

§

Case No. CIV _ _ _ _ _ _ __ COMPLAINT

COMPLAINT I. PRELIMINARY STATEMENT 1. Plaintiffs Glenn Anderson and Charles Taylor are prisoners sentenced to death by the State of Oklahoma. By statute, Oklahoma employs lethal injection as its method of execution. The Defendants and the Oklahoma Department of Corrections [hereinafter "ODOC"] have designed a procedure for carrying out Oklahoma's statutory method of execution that purports to induce death only after a condemned prisoner has been rendered unconscious and
1

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unable to experience pain. In reality, the policies and practices devised by the Defendants and the ODOC unnecessarily risk conscious suffering and pain during execution and deliberately ignore and are indifferent to the health and safety of condemned prisoners. 2. This action is brought pursuant to Title 42, section 1983, of the United States Code for violations and threatened violations of the rights of Plaintiffs to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution, to be free from arbitrary and capricious Department of Corrections procedures and protocols in violation of the Fifth and Fourteenth Amendments of the United States Constitution, and to be free from the deliberate indifference of the Defendants toward Plaintiffs' health and safety in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Plaintiffs seek equitable and injunctive relief. 3. This lawsuit does not challenge the fact of Plaintiffs' sentences of death, nor does it challenge the constitutionality of Oklahoma's statute requiring execution by lethal injection.
II. PLAINTIFFS 4. Glenn Douglas Anderson is a United States citizen and resident of the State of Oklahoma.
He is currently a prisoner under the supervision of the Oklahoma Department of Corrections, ODOC Number 256332, who is sentenced to death by lethal injection. Mr. Anderson is held at H-Unit ofthe Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 745020097. Mr. Anderson does not have a scheduled execution date. 5. Charles F. Taylor is a United States citizen and resident of the State of Oklahoma. He is currently a prisoner under the supervision of the Oklahoma Department of Corrections, ODOC Number 211013, who is sentenced to death by lethal injection. Mr. Taylor is held at H-Unit of the Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 745020097. Mr. Taylor does not have a scheduled execution date.
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III. DEFENDANTS 6. Defendant Edward L. Evans is the Interim Director of the Oklahoma Department of
Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma, 73111. 7. Defendant Mike Mullin is the Warden of Oklahoma State Penitentiary at P.O. Box 97,
McAlester, Oklahoma, 74502-0097. 8. Defendants Robert L. Rainey, W. Mark Luttrull, Ernest Godlove, David C. Henneke, Ted
Logan, Beverly Young, and Earnest D. Ware, are the members of the Oklahoma Board of Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma, 73111. 9. Defendants Unknown Executioners are the officers, agents, employees, and successors in office, along with those acting in concert with them, of the Oklahoma Department of Corrections who will assist in carrying out the executions of Plaintiffs. Plaintiffs do not yet know the identities of the Unknown Executioners. 10. Defendants are acting under color of State law in establishing and designing the ODOC execution policies and protocol and will act under color of State law in selecting and administering to Plaintiffs chemicals in amounts, in combinations, and by methods that will unnecessarily risk conscious suffering and pain in the execution of a sentence of death and/or which are deliberately indifferent to the health, welfare, and safety of Plaintiffs.
IV. JURISDICTION AND VENUE 11. This action arises under 42 U.S.C. § 1983 to redress the deprivation under color of state law
of rights, privileges, and immunities secured by the Constitution of the United States. The rights sought to be redressed are guaranteed by the Eighth, Fifth, and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction over this complaint pursuant to 28 U.S.C. § 1331 (federal question); § 1343 (civil rights violations); § 2201 (declaratory relief); and § 2202 (further relief).
3

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12. Venue is proper in this Court under 28 U.S.C. § 1391 (b) because Edward L. Evans carries out the official business of the Department of Corrections from the Department's administrative headquarters located in Oklahoma City, Oklahoma, and a substantial portion of the events giving rise to this claim have occurred and will occur within this district as part of the official business of the Department of Corrections. All Defendants reside within the State of Oklahoma and Interim Director Edward L. Evans, and Oklahoma Board of Corrections members Ernest Godlove, David C. Henneke, and Earnest D. Ware reside in this district. V. EXHAUSTION OF ADMINISTRATIVE REMEDIES
13. Plaintiffs have exhausted their administrative remedies as required under the Prison Litigation Reform Act, 42 U.S.c. § 1997e, by following the procedure set forth in the Oklahoma Department of Corrections Inmate/Offender Grievance Process. The Oklahoma Department of Corrections has denied all relief requested by Plaintiffs and Plaintiffs aver and assert that all conditions precedent for bringing this suit have been met. Copies of Plaintiffs' requests for and denials of administrative relief are appended hereto as Attachments A and
B.
VI. FACTUAL ALLEGATIONS 14. Plaintiffs reallege and incorporate paragraphs 1 to 13 as if fully set out herein. 15. Lethal injection has been promoted as a peaceful way to induce death, like euthanizing a pet
- a single injection, quick unconsciousness, no struggling or movement, and death within seconds. With frightening regularity, however, that is not what happens in Oklahoma. 16. Scott Carpenter was executed by the State of Oklahoma on Thursday, May 8,1997. At 10
minutes after midnight, as lethal drugs entered his body, witnesses report that Mr. Carpenter
"moaned loudly. He exhaled and then his body convulsed. As the drugs began to take 4

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 18 of 42
effect, [Mr.] Carpenter made loud rasping sounds and continued to convulse his muscles [and] visibly tensed as he struggled to breathe as the color drained from his face.,,1 Four minutes after the execution began, Mr. Carpenter "[t]urned a deep shade of blue.,,2 Mr. Carpenter "let out a guttural moan, gasped for breath and convulsed violently, stretching the belt that strapped his body to the table as his body arched upward,,,3 his body "shuddered with 18 violent convulsions, followed by eight lesser ones.,,4 Twelve minutes after the execution began, Mr. Carpenter was pronounced dead. 17. Robyn Parks was executed by the State of Oklahoma on Tuesday, March 10, 1992. At fortytwo minutes after midnight, the execution began. Mr. Parks said "I'm still awake."s "Less than two minutes after Warden Dan Reynolds ordered the execution to begin, Parks' body began bucking under straps that held him to a gurney. He spewed out all the air in his lungs, spraying a cloud of spit.,,6 Witnesses said "[i]t was overwhelming, stunning, disturbing.,,7 Eleven minutes after the execution began, Mr. Parks was pronounced dead. 18. Loyd LaFevers was executed by the State of Oklahoma on Tuesday, January 30, 2001. As the lethal drugs began to flow, Mr. LaFevers "laid his head back, and he began to go into convulsions, gasping for breath, his chest heaving."g He "started raising off the bed" and "[t]he rising of his chest and the burst of air happened together over and over, as if he were gasping.,,9 "[H]is eyes stayed open.,,1Q "[H]e appeared to have a bruise and swelling in his
I Carlton M. Lane, 22-year-old executedJor EuJala area murder, McALESTER NEWS-CAPITAL, May 8, 1997, at l. 2Id. 3 Michael Smith, Execution oJKiller a Quiet One, DIE TULSA WORLD, May 9,1997, at AIS. 4 Anthony Thornton, State Fulfills Killer's Wish For Execution, THE DAILY OKLAHOMAN, May 8, 1997, at 1. 5 Kandra Wells, Parks Body Take To OKC After Execution, McALESTER NEWS-CAPITAL, Mar. 10, 1992, at 2. 6 Wayne Green, I I Minutes That TookA Lifetime, TULSA WORLD, Mar. 2, 1992, at Al3. 7Id. 8 Howard Pankratz, Leadville Senator Witnesses Execution ojAunt's Killer, DENVER POST, Jan. 31, 2001, at BO 1. 9 Dec!. Catherine M. Burton (Feb. 19,2004). 10 Dec!. Patrick J. Ehlers (Mar. 1,2004).
5

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 19 of 42
left arm ... where he had an IV tube."!! After 6 minutes of convulsions, Mr. Lafevers was dead. 19. Unless modified, the policies and practices followed by the ODOC, which are on information and belief substantially the same today as were used in the executions of Mr. Carpenter, Mr. Parks and Mr. LaFevers, will unnecessarily place Plaintiffs at risk of suffering the same excruciating torturous deaths as were experienced by Mr. Carpenter, Mr. Parks, and Mr. LaFevers. A. Oklahoma's Lethal Injection Legislation and How It Came into Being 20. After years of a court ordered moratorium on the death penalty, in 1976 the United States Supreme Court once again upheld capital sentencing procedures. 21. The problem with restarting executions in Oklahoma was that its electric chair, last used in 1966, had fallen into disrepair. The State looked for an alternative. 22. In what became the first proposal in the nation for execution by lethal injection, the Oklahoma Legislature enacted a statute prescribing that "[t]he punishment of death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashortacting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice." OKLA. STAT. tit. 22, § 1014 (A) (emphasis added). 23. The statute prescribes no specific drugs, dosages, drug combinations, manner of intravenous line access, or certifications, training, or licensure for those who participate in executions. All of the details for carrying out executions were left up to the Department of Corrections. B. How Executions Are Performed in Oklahoma 24. On information and belief, executions by lethal injection in Oklahoma are performed in
II Dec!. Patrick J. Ehlers (Mar. 1,2004).
6

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 20 of 42
the following way: 25. The condemned prisoner is strapped to a gurney. 26. Phlebotomists insert two intravenous ("IV") lines to the condemned prisoner, one into
each arm. 27. When the curtains rise on the execution chamber, the IV lines can be seen leaving the
condemned prisoner, draped across the floor of the chamber and passing through a hole in the wall to the room where the executioners wait. Last statements are made, and then a prison official orders the execution to begin. 28. Three lay-executioners then begin plunging eleven hand-held syringes in a confusing and complicated sequence prescribed by the ODOC protocol. First one drug, then a saline flush, then the next drug, alternating the drugs between the left and right arms. It is not known who, if anyone, directs the sequence of drug administration for the executioners. 29. The drugs purportedly administered are: Thiopental (to cause unconsciousness);12 Vecuronium Bromide (to cause paralysis and to stop all movement including respiration); and Potassium Chloride (to stop the heart). 30. The putative drugs dosages are:
• 1200 milligrams ["mgs"] Thiopental in the left arm IV line; • Saline in the left arm IV line; • 20 mgs Vecuronium Bromide in the right arm IV line; • Saline in the right arm IV line; • 100 meqs (milliequivalents) Potassium Chloride in the left ann IV line; and • Saline in the left arm IV line. 31. The process is then repeated by injecting a second round of drugs: • 100 meqs Potassium Chloride in the right arm IV line;
12Thiopental is also known as Sodium Pentothal or Sodium Thiopental and will be referred to as Thiopental in this Complaint.
7

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 21 of 42
• Saline in the right arm IV line. • 1200 mgs Thiopental in the left arm IV line; • Saline in the left arm IV line • 20 mgs Vecuronium Bromide in the right arm IV line; and • Saline in the right arm IV line. 13 32. The process is intended to deliver two doses of Thiopental through the left arm IV line, two doses of Potassium Chloride (one dose in each arm IV line), and two doses of Vecuronium Bromide in the right arm IV line. 33. When an electrocardiogram monitor signals the cessation of electrical activity in the heart, a physician manually checks the condemned prisoner and pronounces death. 34. This process recklessly subjects condemned prisoners to significant and utterly unnecessary risks that they will be tortured to death. C. The Risks of ODOC's Lethal Injection Process 35. There are a number of risks associated with the ODOC's execution process which include, but are not limited to, the following: (a) First, in violation of medically approved procedures, the process fails to employ properly trained persons to cany out what is, in effect, the surgical induction of anesthesia. (b) Second, it arbitrarily and unnecessarily uses drugs and drug dosages that create significant risks that condemned prisoners will suffer completely unnecessary pain during execution. (c) Third, it mandates a sequence of drug administration that delays administration of a portion of the intended anesthetic until after the condemned prisoner is, or should be, dead. (d) Fourth, it delivers drugs through two alternating IV lines, impairing control over the timing and sequence of drug delivery and increasing the risk of drug administration
13 Affidavit of Warden Mike Mullin, Jan. 12,2004.
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Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 22 of 42
failure. a. Because the Drugs Used to Cause Death Are Painful, it Is Necessary That Qualified Persons Create and Maintain IV Access to Ensure Adequate Anesthesia
36. The drugs used to cause death in an execution by lethal injection are painful. When a concentrated dose of Potassium Chloride is injected peripherally into the vein of an arm it feels like a fire traveling through the vein to the heart. Death by Potassium Chloride poisoning is known to be so excruciating that the American Veterinary Medical Association ("AVMA") prohibits use of Potassium Chloride as the sole agent of euthanasia and, if it is to be used at all, only used after the subject has reached a surgical plane of anesthesia.
37. When a neuromuscular blocking agent is administered, it paralyzes all voluntary muscles. Respiration is impossible. It locks the recipient in a chemical tomb, where he is conscious, but unable to signal distress and unable to breath, and eventually dies by asphyxiation. Death by asphyxiation involves intense, visceral pain and has, as a method of execution, been ruled unconstitutional as violative of the Eighth Amendment.
38. The risks of neuromuscular blocking agents are well known. The AVMA prohibits the use of neuromuscular blocking agents in combination with the barbiturate anesthetics. The State of Oklahoma prohibits the use of curarifonn neuromuscular blocking drugs in the euthanization of animals.
39. Lethal injection is only humane if an anesthetic is administered which induces unconsciousness before neuromuscular blockers stop respiration and Potassium Chloride stops the heart.
40. Administration oflV anesthesia requires proficiency at achieving and maintaining IV access. But the sources of error are many: (a) IV catheters must be inserted into a vein and not through the vein into tissue. If a 9

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 23 of 42
catheter is incorrectly placed, the drugs flowing through the IV lines can infiltrate the tissue surrounding the catheter rather than correctly entering the vein. (b) In Oklahoma, because two alternating IV lines are used to administer drugs, two separate IV catheters must be inserted and both connections to the condemned prisoner's veins maintained throughout the execution process. (c) Once inserted, the catheters are connected with tubing to IV fluid bags. All mechanical components of the IV system must operate correctly for the drugs to be correctly delivered, but errors commonly occur: IV tubing sometimes leaks or becomes disconnected, or the drugs are introduced to the IV system in the wrong direction, preventing the drugs in the IV line from reaching the patient in the intended concentrations, or from reaching the patient at all. (d) Oklahoma employs unqualified persons to create IV access. The phlebotomists used by the ODOC to insert IV catheters in condemned prisoners are trained to collect blood; they are not competent to administer drugs intravenously and are not expert in the process of inserting and maintaining IV catheters, a fundamentally different and far more difficult task than drawing blood. (e) On information and belief, no one monitors the IV catheters throughout executions, leaving open the possibility that IV catheters can become disconnected throughout the process. (f) In the event that a phlebotomist cannot achieve venous access in a peripheral vein in a hand or arm the ODOC is prepared to create venous access through the invasive and painful processes of inserting a percutaneous central line (tunneling under the skin to reach the subclavian or central vein) or performing a surgical cut down (where a vein is exposed by incision or catheritized). Because these techniques of venous access require
10

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 24 of 42
much more skill and training and are far more invasive than peripheral vein access, they are normally perfonned in highly equipped emergency rooms or operating theatres. (g) The ODOC has failed to specifY who has perfonned these procedures in the past (and there has been at least one central line venous access performed) or who will perform them in the future, if necessary, and failed to guarantee that those performing such measures will have the requisite training to protect condemned inmates from the unnecessary pain caused by these procedures if they are not performed in the appropriate manner. (h) On information and belief, Oklahoma uses three lay-executioners to plunge eleven hand held syringes in a confusing and complicated sequence to deliver the deadly drugs. The use of untrained persons to plunge syringes risks error in the sequence and rate of drug administration, IV line failures because the executioners cannot observe the IV site and monitor the condition of the IV catheter for things like infiltrations and blowouts and are not trained to interpret things like pressure feedback on the IV lines. 41. Training and experience are essential to the success of the execution as a humane process. The ODOC's personnel and executioners are not properly trained in the art of administering intravenous drugs.
b. Tbe Chemical Cocktail Chosen by the onoc Creates an Unnecessary
Risk of Flawed Executions Involving Conscious Suffering 42. The ODOC has arbitrarily selected three drugs that unnecessarily risk conscious suffering in
the dosages, combinations, and procedures which its executioners use. 43. The first drug, Thiopental, is an ultra-short acting barbiturate which acts to depress the
central nervous system to produce unconsciousness and anesthesia. Thiopental derives its utility in surgical procedures from its rapid onset and rapid redistribution through the body at
II

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 25 of 42
low (surgical) doses. Typically, Thiopental is used in the induction phase of anesthesia to temporarily anesthetize patients for sufficient time to, for example, intubate the trachea. Thiopental is a drug which requires skill to administer and should only be administered by a person qualified in the use of intravenous anesthetics. 44. If it is necessary to maintain a patient in a surgical plane of anesthesia for longer than just a few minutes, drugs other than Thiopental are typically used. If Thiopental is going to be used not only to induce, but also to maintain, a surgical plane of anesthesia, a qualified person must be present to assure that the Thiopental has been correctly administered and is maintaining the patient in a state of unconsciousness. 45. On information and belief, the ODOC protocol does not require any person to monitor the plane of anesthesia during execution. 46. The ODOC has arbitrarily and needlessly selected a dose of Thiopental that is lower than reliably guarantees a surgical plane of anesthesia for the duration of executions. The probability of inducing unconsciousness with Thiopental is dose dependent. Dosage is, in tum, weight dependent. For example, a 1200 mg dose to a 100-pound man is like a 600 mg dose to a 200-pound man. Other jurisdictions in the United States typically employ larger doses of Thiopental than are used in Oklahoma. For example, California administers 5000 mg of Thiopental. Pharmacokinetic studies which model the uptake, distribution, and elimination of a 1200 mg dose of Thiopental on a range of body weights reveal that a 1200 mg dose of Thiopental is low enough to risk consciousness in some condemned prisoners during the course of the execution, even if the drug is fully and effectively delivered. 47. The second drug, Vecuronium Bromide, is a neuromuscular blocking agent and a curariform drug. Neuromuscular blocking agents are used clinically to induce skeletal muscle relaxation to facilitate tracheal intubation or to suppress spontaneous respiration.
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48. Neuromuscular blocking agents must be administered with great care because they have no effect on consciousness or the ability to sense and perceive pain. Unless consciousness is assessed before the administration of the neuromuscular blocker, the paralysis induced in the patient will prevent anyone, even a person with advanced medical training, from ascertaining whether a patient is awake and capable of experiencing pain.
49. Neuromuscular blocking agents are typically accompanied by product warnings that require the drugs to be administered by experienced clinicians who are familiar with the drug's actions and the possible complications of its use and cautioning that the drugs have no known effect on consciousness, pain threshold, or cerebration. Therefore, administration must be accompanied by adequate anesthesia or sedation.
50. The effect of neuromuscular blocking agents in immobilizing patients and masking external indications of their pain is well known. Patients who have been administered neuromuscular blocking agents with inadequate anesthesia have been conscious during surgery and have reported terrifying and torturous experiences where they were alert, experiencing pain, yet utterly immobilized and unable to signal their distress.
51. The consequences of erroneous administration of neuromuscular blocking agents IS so profound that at least eighteen states, including Oklahoma, have banned by statute the use of such drugs in the euthanization of animals. The AVMA never permits the use of neuromuscular blocking agents in combination with barbiturate anesthetics. The ODOC has thus settled on a protocol and procedure to kill the State's condemned prisoners that is considered too risky and dangerous for the euthanization of pets. There is no need to risk the conscious suffocation of these prisoners as a result of the administration of neuromuscular blocking agents. Other drugs are available to satisfy Oklahoma's statutory requirement for a "paralytic agent" that do not affect respiration. Using these alternate drugs would eliminate
13

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 27 of 42
the risk that a condemned prisoner will consciously asphyxiate. 52. The third drug, Potassium Chloride, contains essential blood Ions and is typically
administered in trace amounts as a necessary electrolyte. While a certain potassium level is important for normal cardiac electrical activity, a rapid increase in blood concentration of potassium causes cardiac arrest. Injection of concentrated potassium activates sensory nerve fibers, causing severe pain as the drug travels through the venous system. There is universal medical agreement that, without anesthesia, an injection of a Potassium Chloride overdose causes excruciating pain. 53. The American Veterinary Medical Association is so confident that death by Potassium Chloride will cause unnecessary suffering that it prohibits its use as a euthanasia agent unless the practitioner administering the Potassium Chloride has the skill and training to assure that the subject to be euthanized has reached a surgical plane of anesthesia. 54. The Oklahoma statute does not require the administration of Potassium Chloride and the ODOC has arbitrarily and needlessly added Potassium Chloride (which is universally acknowledged to be painful) to the protocol when alternative drugs would serve the statutory function of a paralytic agent.
c. The Order of Drug Administration Reveals the ODOC's Flawed Understanding of the Execution Process
55. The ODOC protocol delays administration of a second dose of anesthetic agent to condemned prisoners until after the prisoner has been paralyzed by a neuromuscular blocker and twice administered massive overdoses of Potassium Chloride that should already have killed within seconds of reaching the prisoner's heart. It should be self-evident that anesthetics should be administered before the other drugs in the execution sequence because it is unnecessary to administer them after death. However, the ODOC does not appear to
14

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 28 of 42
know that the second dose of anesthetic in its process comes too late to alleviate the pain and suffering of the condemned prisoner. The order of drug administration in Oklahoma is arbitrary and capricious, without justification, and unnecessarily risks conscious suffering.
d. The Two-Line IV Method Creates an Unnecessary Risk of Flawed Executions That Result in Conscious Suffering
56. Untrained persOlmel, the drugs selected, and the order of drug administration, each add to the risk of flawed executions in which prisoners consciously suffer pain. When these factors are combined with the two-line IV method of drug delivery employed by the ODOC, the risks rise exponentially. By using this two-line method of drug delivery, not used by any other state in the nation, the ODOC doubles the risks ofIV line failures. Such failures can include, but are not limited to: IV line blockages; infiltrations in which the intravenous injection will diffuse into the surrounding tissue rather than be delivered into the vein; and other similar eventualities that result in an ineffective delivery of one or more of the drugs.
57. There is a grave risk in the ODOC protocol that the right IV line will remam open (effectively delivering the neuromuscular blocker and Potassium Chloride) while the left line is blocked Or drug delivery is impeded. These circumstances would create a scenario in which the drug intended to achieve unconsciousness is not effectively delivered and the prisoner will be conscious when he is suffocated by having his respiration stopped and killed by having his heart stopped. There is reason to believe that just such eventualities have occurred during Oklahoma executions. D. Oklahoma Executions Have Gone Wrong a. Observed IV Line Access Problems
58. The ODOC has failed to achieve successful IV access to condemned prisoners. In 2001, witnesses noticed swelling and bruising on Mr. LaFevers's left (Thiopental) arm consistent
15

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 29 of 42
with an IV infiltration which prevented effective delivery of the anesthetic intended to alleviate the inevitable pain accompanying the administration of a nenromuscular blocking agent and Potassium Chloride. 59. Autopsy reports show that, on at least seven occasions, executed prisoners have had multiple acute puncture marks in addition to the IV catheter sites, reflecting that the ODOC has required mUltiple attempts to achieve venous access. In at least one execution it was impossible to achieve peripheral venous access and a central line was required. 60. IV access irregularities support the conclusions that personnel carrying out executions are inadequately trained and qualified.
b. Failure to Administer All Drugs 61. Autopsy reports reveal at least two cases in which full (unused) syringes of the anesthetic
Thiopental have accompanied bodies to the medical examiner's office. On information and belief, these data indicate that the ODOC has, on several occasions, arbitrarily and unnecessarily failed to administer all of the required and intended dose of Thiopental risking inadequate anesthesia and conscious suffering.
c. Witnesses Reports of Condemned Prisoner Reactions Suggest Inadequate Anesthesia
62. There are many reports of prisoner reaction to the execution process that are inconsistent with the rapid and complete onset and maintenance of anesthesia. As previously discussed, the Carpenter, LaFevers, and Parks executions were accompanied by witness observations of prisoner response to the execution protocol that is inconsistent with effective administration ofthe execution protocol.
63. Witnesses to other executions also report prisoner comments like "I can taste it" and shaking and convulsions that are also inconsistent with the rapid and complete onset and
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Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 30 of 42
maintenance of anesthesia. d. Analytical Data Suggests Inadequate Anesthesia
64. Postmortem Thiopental blood concentrations, in some cases, cannot be reconciled with consistent administration of Thiopental and, in some cases, are inconsistent with antemortem unconsclOusness. E. The Defendants and the ODOC Knew, Or Should Have Known, of Executions Involving the Risk of Conscious Suffering Yet Have Failed to Correct the Execution Process to Minimize That Risk
65. The Defendants and the ODOC knew, or should have known, that their execution process is flawed in ways that entail risks of conscious suffering, but have deliberately ignored those risks and failed to make practicable modifications in the process. The ODOC policy statement number OP-090901, dated April 12, 1978 (date issued) and May I, 1978 (effective date) indicates that the Defendants and the ODOC have been aware since 1978 that adequate IV access is essential to a humane execution, but nevertheless have employed persons unqualified to achieve IV access as part of the execution process and has failed to employ qualified persons to monitor IV access and the plane of anesthesia throughout the execution process.
66. The Defendants and the ODOC knew, or should have known, since 1978 that drugs other than neuromuscular blocking agents or curariform derivatives can serve the statutory requirement of paralytic agents, but have nevertheless continued to employ drugs known to risk conscious suffering.
67. The Defendants and the ODOC knew, or should have known, of botched executions involving risks of conscious suffering, for example, the Carpenter execution, but have nevertheless continued to employ drugs, dosages, chemical combinations, and procedures that risk the needless infliction of conscious suffering. Ron Ward, who was Warden of the 17

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 31 of 42
Oklahoma State Penitentiary during the Scott Carpenter execution, said that "There was probably more body action with this one than I've seen,,14 and acknowledged that the Carpenter execution took longer than normal. F. The Defendants and the ODOC Have Arbitrarily and Capriciously Modified
the Execution Processes Subjecting Condemned Prisoners to Risks of Conscious Suffering 68. The Defendants and the ODOC have, since 1990, arbitrarily and capriciously modified the execution processes to change, for example, the drugs used, the drug amounts, number ofIV lines used to deliver drugs, and personnel involved, exposing condemned prisoners to risks of conscious suffering. 69. The sum of the available execution data (witness reports, postmortem Thiopental levels, execution duration, weight, and other data) indicate that the ODOC protocol has caused a high frequency of failure to effectively anesthetize condemned prisoners for the duration of executions. 70. Botched executions that risk conscious suffering are the direct and inevitable result of a protocol cobbled together in secret by people who are not qualified to conduct what is essentially the induction of anesthesia. The ODOC protocol is flawed at nearly every tum in that it: (1) orders executioners to take the bizarre step of anesthetizing those who are, or should be, already dead; (2) uses unqualified personnel like phlebotomists to insert IV catheters; (3) uses dangerous and unnecessary drugs (like neuromuscular blockers) in a reckless manner; (4) fails to take the simple step of assuring that a surgical plane of anesthesia and an actual state of unconsciousness have been achieved and will continue for the duration of the execution before administering painful drugs; (5) administers a dose of
14 Anthony Thornton, After Apologizing, Killer Dies With Calm Dignity, THE DAILY OKLAHOMAN, May 9, 1997, at
9.
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Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 32 of 42
Thiopental that is unnecessarily dangerously low; and (6) introduces drugs through two IV lines unnecessarily complicating the execution process and unnecessarily risking hann. 71. TIle consequence of the ODOC protocol is that people are suffering when they are executed in Oklahoma. They are suffering for more than the transitory period necessarily attendant to any death. People are suffering for prolonged periods as result of completely avoidable problems in protocol and procedure. It is possible to conduct execution by lethal injection in a manner that both complies with Oklahoma's statute and is humane, but the Defendants and the ODOC have arbitrarily, capriciously, and unnecessarily devised a protocol for carrying out executions by lethal injection that does not do so.
VII. CLAIMS 72. Plaintiffs reallege and incorporate paragraphs 1 to 71 as if fully set out herein. 73. By subjecting Plaintiffs to an arbitrary, capricious and irrational method of execution that
creates an unnecessary and significant risk of inflicting agonizing and prolonged pain, and by designing and administering a process under which they will inject Plaintiffs with chemicals in amounts, combinations, and by a protocol or protocols that mmecessarily risk conscious suffering and pain in the execution of a sentence of death, Defendants deprive Plaintiffs of their rights under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution to be free from cruel and unusual punishment and to be free from arbitrary and capricious processes. 74. By subjecting Plaintiffs to an arbitrary, capricious, and irrational method of execution that creates an unnecessary and significant risk of inflicting agonizing and prolonged pain, Defendants with deliberate indifference to Plaintiffs' serious medical needs violate Plaintiffs' rights to be free from cruel and unusual punishment and the unnecessary and wanton infliction of pain in violation of the Fifth, Eighth and Fourteenth Amendments of the United
19

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 33 of 42

States Constitution.

VIII. PRAYER FOR RELIEF

75. Plaintiffs reallege and incorporate paragraphs I to 74 as if fully set out herein.

76. Wherefore, Plaintiffs pray as follows:

77. That this Honorable Court issue a judgment declaring that the Defendants protocols, policies,

practices, and acts and omissions as described herein violate Plaintiffs' rights as guaranteed

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

78. That this Honorable Court permanently enjoin Defendants, their officers, agents, employees,

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

unlawful practices described herein;

79. That this Honorable Court retain jurisdiction over this cause until the Court's order is carried

out; and

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

circumstances.

Respectfully submitted this 20th day of July, 2005, by and through,

sl Lisa S. McCalmont Lisa S. McCalmont Oklahoma Bar No. 17096 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK. 73102 (405) 609-5930 (405) 609-5952 lisa_mccalmont@fd.org

20

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 34 of 42
VERIFICATION I, Lisa S. McCalmont, hereby declare: I. I am a member of the State Bars of Oklahoma and Texas and am admitted to practice before the all of the Federal District Courts of Oklahoma, the United States Court of Appeals for the Tenth Circuit, the United States Supreme Court. 2. I have reviewed the foregoing complaint. I have personal knowledge of the matters set forth in the complaint, except as otherwise indicated, and could and would competently testify to them if called upon to do so. I verify that all of the alleged facts that are not otherwise supported by citations to the records or declarations attached to the complaint are true and correct to my own knowledge, except as to any matters stated in it on information and belief, which I am infonned and believe are true and correct. I declare under penalty of perjury under the laws of the State of Oklahoma and the United States of America that the foregoing is true and correct. Executed on July 13,2005, in Oklahoma City, Oklahoma.
sl Lisa S. McCalmont Lisa S. McCalmont Oklahoma Bar No. 17096 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK. 73102 (405) 609-5930 (405) 609-5952 lisa_mccalmont@fd.org
21

Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 35 of 42

~apnat r unlsnment

Pun.ishment

Monitor ttlis page for changes
Monitor changes
it's private by ChangeDetec!ion
Death Row Population Death Penalty Information Execution process Oklahoma Executions Death Penally Information Center Execution Statistics (Excel Spreadsheet)
Scheduled Executions as of 04/20/06: John Albert Boltz: June 1, 2006
Death P,enalty Information
http://www.doc.state.ok.us/DOCS/CapitalP.HTM

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Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 36 of 42

Capital Punishment
The current death penalty law was enacted in 1977 by the Oklahoma Legislature. The method to carry out the execution is by lethal injection. The original death penalty law in Oklahoma called for executions to be carried out by electrocution. In 1972 the U.S. Supreme Court ruled unconstitutional the death penalty as it was then administered. Oklahoma has executed a total of 160 men and 3 women between 1915 and 2006 at the Oklahoma State Penitentiary. Eighty-two were executed by electrocution, one by hanging (a federal prisoner) and 80 by lethal injection. The last execution by electrocution took place in 1966. The first execution by lethal injection in Oklahoma occurred on September 10,1990, when Charles Troy Coleman, convicted in 1979 of Murder 1st Degree in Musko~lee County was executed.
Execution Process
Method 01' Execution: Lethal Injection.
Drugs uSEOd: Sodium Thiopental causes unconsciousness. Vecuronium Bromide stops respiration. Potassium Chloride stops heart.
Two intravenous lines are inserted, one in each arm. The drugs are injected by hand held syringes sequentially into the intravenous lines, alternating between the two lines. The sequence is in the order that the drugs are listed above. Saline is also injected after each drug is injected. Three executioners are utilized, with each one injecting one oHhe· drugs.

Oklahoma Executions
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Name
BOOKMAN, Henry TOWERY, Cecil WILLIAMS, Willie YOUNG, Charley TAYLOR, Ch~ster

Received by DOC 06-01-15 09-05-16 03-16-16 01-25-17 02-16-17

Date Executed 12-10-15 11-06-16 04-13-17 04-13-17 04-13-17

Age Race

28

B

22

B

34

B

26

B

.44

B .-

Crime
Murder Murder Murder Murder Murder
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County
Mcintosh Mcintosh Muskogee
Tillman Creek

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Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 37 of 42

Capital Punishment

PRATHER, John BROWN, James BRAUGHT, T.R. BETTERTON, Monroe BLAKELY, Robert W. LEDBETTER, John A. THOMAS, Eli SABA, Steve WATKINS, Sam HARVEY, Aaron POPE, Jack BIRKES, Richard A. SCOTT, L(~Roy WASHINGTON, Johnnie O'NEAL, Willie WIGGER, Walter BUSTER, Theodore GUEST, Tom FORREST, James Edward HEMBREE, E.S. COLE, Paul D. NICHOLS, Bennie LOVETT, Henry HARRIS, A.M. KENNEY, Martin A. DAVIS, Charles Fillmore ALDER, LJ. COVINGTON, Ivory RIGHTSELL, Nathan LATTIMER, Charles (Jack) McDONALD, Proctor MARTIN, .Joe L.

07-21-17 05-03-18

25

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08-07-17 11-08-18

33

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10-05-17 05-23-19

27

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11-01-19 07-11-20

42

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11-30-20 02-25-21

39

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12-03-20 02-25-21

31

I

09-13-20 07-15-21

21

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02-16-22 03-17-22

50

W

02-14-22 05-05-22

39

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05-10-23 01-13-24

21

W

05-10-23 01-13-24

45

W

11-18-23 09-05-24

25

W

01-13-24 05-29-25

21

B

12-14-24 12-04-25

28

B

01-24-26 06-29-28

25

B

01-12-27 06-29-28

30

W

05-01-27 06-29-28

20

B

12-14-27 07-17-30

45

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10-12-28 07-17-30

21

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07-02-30

4-17-31

31

I

07-22-30 07-10-31

32

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05-17-30 08-21-31

36

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02-10-31 09-25-31

39

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03-03-31 06-17-32

48

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03-03-31 03-11-32

48

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09-26-31 08-09-32

41

B

10-04-31 08-19-32

49

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05-15-32 01-27-33

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04-28-32 02-24-33

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06-17-32 03-24-33

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03-28-32 05-05-33

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Creek Craig Muskogee Muskogee LeFlore Coal Atoka McCurtain McCurtain Craig Pittsburg Jackson Oklahoma Ottawa Muskogee Pottawatomie Stephens Stephens Seminole Pontotoc Canadian Oklahoma Oklahoma Blaine Blaine Choctaw Choctaw Comanche Creek Noble

http://www.doc.state.ok.usIDOCS/CapitaIP.HTM

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Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 38 of 42

Capital pUnishment
ELLIS, Albert
-
NICHOLS, luke OLIVER, George OLIVER, Claude DUMAS, Charley PATTON,Ted JOHNSON, William QUINN, Eilrl MORRIS, Tom CLARK, Frank OGLESBY, Ernest CARGO, Robert BARRETT, Chester RILEY, Bun ROWAN, Alfred GUYTON, Roy HARGUS, James R. GOOCH, ~,rthur SANDS, Charlie SILER, Leon MANNON, Ray CUNNINGHAM, Roger ABBY, Warren TUGGLE, J_D_ PORTER, Finley PRATHER, Hirem JOHNSON, Amon NORMAM_ CliffT_ BINGHAM, Alfred C. JOHNSON, Mose BROYLES, Hardin

10-04-32 05-05-33

25

W

Robbery w/Firearm

08-09-32 05-19-33

43

W

Murder

12-16-32 08-25-33

18

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Murder

12-16-32 08-25-33

28

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Murder

09-27-32 10-20-33

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Rape 1

09-29-32 10-20-33

25

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Murder

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28

B

Murder

03-25-33 11-24-33

29

W

Murder

04-01-33 11-24-33

39

B

Murder

03-05-34 10-19-34

59

8

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01-18-34 01-04-35

26

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Murder

07-04-34 05-24-35

20

W

Murder

09-22-34 09-20-35

36

W

Murder

10-10-34 09-20-35

28

W

Murder

12-20-34 09-20-35

29

B

Murder

01-24-35 03-20-36

24

B

Murder

12-08-34 04-24-36

24

W

Murder

08-07-35 06-19-36

26

W

Kidnapping

09-29-35 06-11-37

19

I

Murder

09-29-35 06-11-37

20

W

Murder

02-13-39 03-01-40

37

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Murder

11-15-39 11-15-40

34

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Murder

12-27-39 08-29-41

57

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Murder

06-15-40 02-09-42

21

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Murder

07-03-41 04-16-43

38

B

Murder

10-14-41 07-14-43

33

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Murder

04-26-44 03-23-45

29

B

Murder

04-12-44 11-09-45

29

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Rape 1

10-21-43 05-31-46

38

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Murder

07-03-45 11-01-46

32

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05-26-45 01-30-47

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Carter
Alfalfa Murray Murray
Coal Sequoyah Muskogee
Garfield Pittsburg McCurtain Oklahoma Oklahoma
Creek Pittsburg Jackson Oklahoma
Tulsa (Federal) Comanche Comanche Wagoner Oklahoma
Custer Garvin Pittsburg Pittsburg Lincoln Murray Tulsa Pittsburg Seminole
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http://wwvv.doc.state.ok.us/DOCS/CapitalP.HTM

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Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 39 of 42

Capital Punishment
GRAYSON, lewis GOULD,llen KLETTKE, Max E. HATHCOX, Jearell MOTT, Me,lburn J. DeWOLF, Carl Austin FAIRRIS, flurbie F. LOEL, Otto A, HENDRIC~:S, Robert WILLIAMS, Edward SPENCE, James YOUNG, Ray Allen DOGGETT, Shelby DARE, Richard FRENCH, James
COLEMAN, Charles Troy PARKS, Robyn Leroy ROBISON, Olan Randle GRASSO, Thomas J. STAFFORI), Roger Dale BRECHEEN, Robert A. BREWER,_ Benjamin HATCH, Steven Keith CARPENTIER, Scott D. LONG, Mkhael Edward. WOOD, Stephen Edward NGUYEN, Tuan DUVALL, John CASTRO, John W. SELLERS, Sean MOORE,~cotty Lee

12-13-45 05-25-48

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12-15-48 01-04-51

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03-30-50 07-27-51

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05-12-49 09-21-51

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10-05-49 11-17-53

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10-29-54 01-18-56

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11-02-55 01-11-57

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02-21-65 08-10-66

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FOLLOWING EXECUTIONS BY LETHAL INJECTION

10-15-79 09-10-90

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Oklahoma Oklahoma
Tulsa Tulsa Oklahoma Oklahoma Craig Tulsa Cotton Jackson Comanche Oklahoma Pittsburg
Muskogee Oklahoma Stephens
Tulsa McClain
Carter Tulsa Canadian Mcintosh Muskogee Greer Tulsa Stephens
Kay Oklahoma Oklahoma

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Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 40 of 42

CapItal Pumshment
NEWSTED, Norman COOKS, Cornel ROSS, Bobby JOHNSON, Malcolm WALKER, Gary Alan ROBERTS, Michael ROGERS, Kelly Lamont BOYD, Ronald Keith FOSTER, Charles Adrian ROBEDEAlUX, James BERGET, Roger J.
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08-03-84 07-08-99

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04-01-83 12-02-99

43

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11-03-83 12-09-99

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04-07-82 01-06-00

42

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12-05-84 01-13-00

46

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07-18-88 02-10-00

42

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01-21-92 03-23-00

32

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09-29-86 04-27-00

43

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12-12-83 05-25-00

51

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07-08-86 06-01-00

52

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03-18-87 06-08-00

39

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04-03-89 06-15-00

30

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08-25-93 07-20-00

39

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06-25-87 01-09-01

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Osage Comanche Roger Mills Oklahoma
Tulsa Oklahoma
Payne Oklahoma Muskogee Oklahoma Oklahoma Oklahoma
Carter LeFlore Oklahoma Oklahoma Canadian Oklahoma Oklahoma Oklahoma Oklahoma Comanche
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http://www.doc.state.ok.us/DOCS/CapitalP.HTM

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Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 41 of 42

CapItal t'lilllshment

Al-MASAWI, Sahib ROMANO, John Joseph WOODRUFF, David Wayne CANNON, Randall Eugene FREDERICK, SR., Earl Alexander McCRACKEN, Jerry Lynn NEILL, JaV Wesley CARTER, .JR., Ernest Marvin REVILLA, Daniel Juan FIELDS, Bobby Joe ROBINSON, Walanzo Deon HOOKER, John Michael HAIN, ScoU Allen HAWKINS., JR., Don Wilson JACKSON., Larry Kenneth KNIGHTOI~, Robert Wesley CHARM, Kenneth Chad GILBERT, lewis Eugene II DUCKETT, Robert Don TOLES, Bryan Anthony WILLINGHAM, Jackie Lee McELMURRY, Harold Loyd DARKS, Tyrone CLEARY, Norman Richard BROWN, David Jay LE. Hung Thanh BRYAN, Robert Leroy
IWORKMA!~, Windel Ray
ISLAUGHTER, Jimmie Ray
MILLER JJt, George James

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03·30-98 07-30-02

51

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10-22-91 12-10-02

35

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10-02-92 12-12-02

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02-25-91 12-17-02

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12-04-87 01-16-03

34

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04-12-94 02-13-03

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06-19-90 03-18-03

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11-09-88 03-25-03

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06-14-88 04-03-03

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http://www.doc.state.ok.usIDOCS/CapitalP.HTM

Oklahoma Oklahoma Oklahoma Oklahoma Oklahoma
Tulsa Comanche Oklahoma
Jackson Oklahoma
Oklahom~ Oklahom~
Creek Oklahoma Oklahoma
Noble Comanche Cleveland Oklahoma Comanche Comanche
Mcintosh Cleveland
Tulsa Grady Oklahoma Beckham Oklahoma Oklahoma Oklahoma Comanche

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Case 5:06-cv-00587-F Document 2 Filed 05/30/2006 Page 42 of 42

Capital Punishment

I'age 15 or 15

PENNINGTON, Michael L. TURRENTINE, Kenneth Eugene THORNBURG, Richard Allen

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5/30/2006

 
 F I LED
United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS

June 1, 2006

FOR THE TENTH CIRCUIT

Elisabeth A. Shumaker Clerk of Court

JOHN ALBERT BOLTZ,
Plaintiff - Appellee,
v.
(1) JUSTIN JONES, in his capacity as Director of the Oklahoma Department of Corrections; (2) MARTY SIRMONS, in his capacity as Warden, Oklahoma State Penitentiary; (3) ERNEST GODLOVE, (4) DAVID HENNEKE, (5) TED LOGAN, (6) W. MARK LUTTRULL, (7) ROBERT L. RAINEY, (8) ERNEST D. WARE, and (9) BEVERLY YOUNG, in their capacities as members of the Oklahoma Board of Corrections, and (10)-(60) DOES 1-50, UNKNOWN EXECUTIONERS, in their capacities as Employees andlor Agents of the Oklahoma Department of Corrections,
Defendants - Appellants.

No. 06-6184 (D.C. No. CIV-06-587-F)
(W.D. Okla.)

ORDER AND JUDGMENT' Before TACHA, O'BRIEN, and TYMKOVICH, Circuit Judges.

, This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

The matter of John Albert Boltz's impending execution by lethal injection is once again before the court, this time for appellate review of a district court order granting Boltz's motion for a temporary restraining order (TRO) staying his execution in conjunction with an action he filed this week under 42 U.S.C. § 1983 challenging the pharmaceutical means by which the execution will be accomplished. Though the order is denominated a TRO rather than an injunction, we have jurisdiction pursuant to 28 U.S.C. § 1292(a)( 1). See Duvall v. Keating, 162 F.3d 1058,1062 (10th Cir. 1998).
We review the district court's order under an abuse of discretion standard. See Bowersox v. Williams, 517 U.S. 345, 346 (1996); Hauser ex reI. Crawford v. Moore, 223 F.3d 1316, 1321 (lith Cir. 2000). We vacate the stay of execution for reasons previously expressed in relevant portions of our order of May 26, 2006, in Boltz v. Sirmons, Appeal No. 06-6174, denying Boltz's initial effort to stay his execution in conjunction with a dispute over whether appointed counsel would be compensated under 18 U.S.C. § 3599 (formerly 21 U.S.C. § 848(q)) for assistance he might provide in a § 1983 action. Specifically, in light of (a) the unlikelihood of success on the merits of the underlying action, both as to the use of § 1983 to raise a constitutional challenge to the lethal injection procedure and as to the constitutional challenge itself, (b) the State's interest in the timely
-2-

effectuation of its final criminal judgments, (c) the public's interest in the orderly administration of its criminal justice system free from belated efforts to derail it, and (d) Boltz's unnecessary delay in bringing this challenge, we conclude that a stay of his execution is clearly inappropriate.
The district court's ruling on the motion to stay execution is REVERSED and its temporary restraining order is VACATED. An active member of the court called for a poll pursuant to Fed. R. App. P. 35, and en banc review was granted. A majority of the en banc court joins in the panel's disposition of this appeal. Because Judges Lucero and Hartz would hold that the district court did not abuse its discretion they would affirm the district court's order. We advise the parties that the court will not reconsider a decision with respect to en banc review. See 10th Cir. R. 35.l(C). The mandate shall issue forthwith.
Entered for the Court Per Curiam
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87BD, CLOSED, _BG
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:06-cv-00587-F

Boltz v. Jones et al Assigned to: Honorable Stephen P. Friot Cause: 42:1983 Prisoner Civil Rights Plaintiff John Albert Boltz
V. Defendant Justin Jones Director
Defendant

Date Filed: 05/30/2006 Date Terminated: 06/02/2006 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by James L Hankins Ogle & Welch PC 117 Park Ave 3rd Fl Oklahoma City, OK 73102 405-232-9800 Fax: 405-232-1608 Email: jameshankins@ocdw.com ATTORNEY TO BE NOTICED
represented by Preston Saul Draper Attorney General's Ofc-OKC 313 NE 21st St Oklahoma City, OK 73105 405-521-3921 Fax: 405-522-4534 Email: fhc.docket@oag.state.ok.us ATTORNEY TO BE NOTICED
Richard N Mann Attorney General's Ofc-LINCOLN-OKC 4545 N Lincoln Blvd Suite 260 Oklahoma City, OK 73105-3498 405-521-4274 Fax: 405-528-1867 Email: richard_mann@oag.state.ok.us ATTORNEY TO BE NOTICED

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CM/ECF LIVE - U.S. District Court:okwd - Docket Report
Warden Marty Sirmons
Defendant Ernest Godlove Oklahoma Board of Corrections
Defendant David C Henneke Oklahoma Board of Corrections
Defendant Ted Logan Oklahoma Board of Corrections
Defendant W Mark Luttrull Oklahoma Board of Corrections
Defendant Robert L Rainey Oklahoma Board of Corrections
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represented by Preston Saul Draper (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Preston Saul Draper (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Preston Saul Draper (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Preston Saul Draper (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Preston Saul Draper (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Preston Saul Draper (See above for address) ATTORNEY TO BE NOTICED
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Defendant Earnest D Ware Oklahoma Board of Corrections
Defendant Beverly Young Oklahoma Board of Corrections
Defendant John Doe 1-50 Unknown Executioners as Employees and/or Agents of DOC Amicus Glenn Anderson

Amicus Charles F Taylor

Date Filed

#

Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Preston Saul Draper (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Preston Saul Draper (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
represented by Preston Saul Draper (See above for address) ATTORNEY TO BE NOTICED
represented by Lisa S McCalmont Federal Public Defender-OKC 215 Dean A McGee Ave Suite 109 Oklahoma City, OK 73102 405-609-5930 Fax: 405-609-5932 Email: lisa_mccalmont@fd.org ATTORNEY TO BE NOTICED
represented by Lisa S McCalmont (See above for address) ATTORNEY TO BE NOTICED
Docket Text

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05/30/2006 05/30/2006 05/30/2006 05/30/2006 05/30/2006 05/31/2006 05/31/2006 05/31/2006 05/31/2006
06/01/2006 06/01/2006 06/01/2006

1 COMPLAINT against Robert L Rainey, Earnest D Ware, Beverly Young, John Doe, Justin Jones, Marty Sirmons, Ernest Godlove, David C Henneke, Ted Logan, W Mark Luttrull, filed by John Albert Boltz. (Attachments: # 1 Civil Cover Sheet)(db, ) (Entered: 05/30/2006)
2 MOTION for Permanent Injunction, MOTION for Temporary Restraining Order by John Albert Boltz. (db, ) (Entered: 05/30/2006)
Docket Annotation: Case was inadvertantly opened with Judge Cauthron assigned. Case should have been assigned to Judge Leonard as the next judge in the draw. (kw, ) (Entered: 05/30/2006)
3 ENTER ORDER REASSIGNING CASE. Case reassigned to Judge Stephen P. Friot for all further proceedings. Judge Tim Leonard no longer assigned to case. Entered at the direction of Judge Tim Leonard on 5/30/06. (llg) (Entered: 05/30/2006)
4 ORDER Setting Hearing on 2 MOTION for Temporary Restraining Order and/or Permanent Injunction: Motion Hearing set for 6/1/2006 11:30 AM in Courtroom #304 before Honorable Stephen P. Friot. Signed by Judge Stephen P. Friot on 5/30/06. (llg) (Entered: 05/30/2006)
5 ENTRY of Appearance by Preston Saul Draper on behalf of all defendants (Draper, Preston) (Entered: 05/31/2006)
6 ENTRY of Appearance by Richard N Mann on behalf of Robert L Rainey, Earnest D Ware, Beverly Young, Justin Jones, Marty Sirmons, Ernest Godlove, David C Henneke, Ted Logan, W Mark Luttrull (Mann, Richard) (Entered: 05/31/2006)
7 MOTION to Supplement Application for TRO by John Albert Boltz. (Hankins, James) (Entered: 05/31/2006)
8 RESPONSE to Motion re 2 MOTION for Permanent Injunction MOTION for Temporary Restraining Order filed by Robert L Rainey, Earnest D Ware, Beverly Young, Justin Jones, Marty Sirmons, Ernest Godlove, David C Henneke, Ted Logan, W Mark Luttrull. (Attachments: # 1 Exhibit 1 - Motion for Stay# 2 Exhibit 2 - Order# 3 Exhibit 3 - Order)(Mann, Richard) (Entered: 05/31/2006)
9 SUPPLEMENT Materials for TRO by John Albert Boltz. (Attachments: # 1 Attachment Medical Examiner report# 2 Affidavit Mike Mullin Affidavit)(Hankins, James) (Entered: 06/01/2006)
10 NOTICE OF APPEAL by Robert L Rainey, Earnest D Ware, Beverly Young, John Doe, Justin Jones, Marty Sirmons, Ernest Godlove, David C Henneke, Ted Logan, W Mark Luttrull. (Draper, Preston) (Entered: 06/01/2006)
11 Minute Entry for proceedings held before Judge Stephen P. Friot: Motion Hearing held on 6/1/2006 re [2-1] MOTION for Temporary Restraining Order filed by John Albert Boltz. Upon oral mtn of plf's counsel, Glenn Anderson & Charles Taylor (plfs in CIV-05-825) are granted leave to appear in this action as amici. Lisa McCalmont appears on behalf of the amici. Dfts' Exs. 1 & 2 admitted. Amici's Ex. 1 admitted. [2-1] Plf's Mtn for TRO is GRANTED, for the reasons set forth in detail on the record. Dfts are temporarily restrained from executing plf pending

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06/01/2006
06/01/2006 06/01/2006 06/01/2006 06/01/2006 06/02/2006
06/02/2006 06/07/2006 06/07/2006

further order of the ct. [2-2] Plf's Mtn for Preliminary Injunction is set for hrg on 6/28/06 9:00 AM. A written order will follow. Plf is granted until 6/14/06 to submit add'l briefing. Dfts may submit responsive briefing by 6/26/06. Dfts give oral notice of intent to appeal. (Court Reporter Tracy Washbourne.) (llg) (Entered: 06/01/2006)
12 TEMPORARY RESTRAINING ORDER. Dfts are restrained from executing John Albert Boltz until a date after 6/28/06, the date on which plf's mtn for a preliminary injunction will be heard at 9:00 AM. In open court, the court established a briefing schedule. Counsel are reminded that their yet-to-be filed brief should address the issue of whether there is any basis, in any event, for further delay of the execution (as distinguished from relief addressed to the method of execution). Signed by Judge Stephen P. Friot on 6/1/06. (llg) (Entered: 06/01/2006)
13 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 10 Notice of Appeal (dl, ) (Entered: 06/01/2006)
14 EXHIBITS Admitted During June 1, 2006 Hearing on Motion for Temporary Restraining Order. (Attachments: # 1 Amici Exhibit No. 1# 2 Defendant's Exhibit No. 1# 3 Defendant's Exhibit No. 2)(lb) (Entered: 06/01/2006)
Set/Reset Deadlines as to 2 MOTION for Preliminary Injunction. Motion Hearing set for 6/28/2006 09:00 AM in Courtroom #305 before Honorable Stephen P. Friot. (llg) (Entered: 06/01/2006)
16 Receipt for Money Received from James L Hankins in the amount of $350.00, receipt number 116618. (lb) (Entered: 06/02/2006)
15 ADMINISTRATIVE CLOSING ORDER: It appearing that the issues in this case have become moot, this action is administratively terminated without prejudice to the rights of the parties to reopen for entry of any stipulation or order. If not reopened within 30 days, action is deemed dismissed. Neither this order nor the deemed dismissal referred to in the preceding sentence shall constitute an adjudication on the merits. The proceedings in this case have no res judicata or other preclusive effect vis-a-vis the amici. Signed by Judge Stephen P. Friot on 6/2/06. (llg) (Entered: 06/02/2006)
17 USCA Appeal Fee received in the amount of $ 455, receipt number 116651, re 10 Notice of Appeal filed by John Doe,, Ernest Godlove,, Justin Jones,, Marty Sirmons,, Beverly Young,, David C Henneke,, Robert L Rainey,, Ted Logan,, Earnest D Ware,, W Mark Luttrull, (dl, ) (Entered: 06/06/2006)
18 MANDATE From USCA - The district court's ruling on the motion to stay execution is REVERSED and its temporary restraining order is VACATED - 10 Notice of Appeal filed by John Doe,, Ernest Godlove,, Justin Jones,, Marty Sirmons,, Beverly Young,, David C Henneke,, Robert L Rainey,, Ted Logan,, Earnest D Ware,, W Mark Luttrull, (dl, ) (Entered: 06/07/2006)
19 MANDATE From USCA - Amended Order and Judgment 10 Notice of Appeal filed by John Doe,, Ernest Godlove,, Justin Jones,, Marty Sirmons,, Beverly Young,, David C Henneke,, Robert L Rainey,, Ted Logan,, Earnest D Ware,, W Mark Luttrull, (dl, ) (Entered: 06/07/2006)

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06/12/2006

TRANSCRIPT of Proceedings held on June 1, 2006 before Judge Friot. Court Reporter: Tracy Washbourne. re 10 Notice of Appeal filed by John Doe,, Ernest Godlove,, Justin Jones,, Marty Sirmons,, Beverly Young,, David C Henneke,, Robert L Rainey,, Ted Logan,, Earnest D Ware,, W Mark Luttrull, Transcript of: Motion for Temporary Restraining Order (dl, ) (Entered: 06/12/2006)

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