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STEVEN HOWARD OKEN, Plaintiff, v. FRANK C. SIZER, JR., Commissioner Maryland Division of Correction
WILLIAM WILLIAMS, Warden Maryland Correctional Adjustment Center Baltimore, Maryland GARY HORNBAKER, Warden Metropolitan Transition Center
and UNKNOWN EXECUTIONERS, Defendants.

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No. _P_J_M_0_4CV183 0

)

) DEATH WARRANT

) SIGNED

)

) EXECUTION

) IMMINENT

)

)

) EXECUTION

) SCHEDULED FOR

) THE WEEK OF JUNE

) 14

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)

)

COMPLAINT 1.
Nature of Action 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of the right of plaintiff to be free from cruel and usual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks equitable and injunctive relief.
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II. Plaintiff 2. Steven Howard Oken is a United States citizen and a resident of the State of Maryland. He is currently a death-sentenced inmate under the supervision ofthe Maryland Division of Correction, inmate number 212-612. He is held at the Maryland Correctional Adjustment Center and may soon be transferred to the Metropolitan Transition Center.
III. Defendants 3. Defendant Frank Sizer, Jr. is the Commissioner, Maryland Division of Correction. Defendant William Williams is the Warden ofthe Maryland Correctional Adjustment Center where death row inmates are housed. Gary Hornbaker is the Warden ofthe Metropolitan Transition Center where the execution will occur. Defendants, Unknown Executioners, are employed or contracted by the Maryland Department of Corrections to make preparations for, and carry out, the scheduled execution of Plaintiff. They include, but are not limited to correctional officers, nursing assistants, and "executioners." Plaintiffdoes not yet know their identities and it is Plaintiff's understanding that Defendants will not reveal the identities of these persons.
IV. Jurisdiction and Venue 4. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights violations), 220 1 (declaratory relief), 2202 (further relief). This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983. 5. Venue in this Court is proper under 28 U.S.C. § 1391.
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v.
Facts 6. Plaintiff Steven Howard Oken is scheduled to be put to death by lethal injection some day during the week ofJune 14-18,2004. Defendants are responsible for carrying out this execution. 7. The State of Maryland intends to execute Plaintiff by poisoning him with a lethal combination of three chemical substances: The designated Executioners will begin the rapid flow of lethal chemicals in the following order: a. Pentothal (Thiopental) b. Pavulon (Pancurium Bromide) c. Potassium Chloride In between each injection, the line will be flushed with normal saline solution. The defendants intend to follow this procedure even though Maryland law specifies the use of a "continuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards ofmedical practice." Md. Code. Ann. Corr. Serv. § 3-905. 8. Sodium pentothal (thiopental) is an ultrashort-acting barbiturate that beings to wear off almost immediately. 9. Pavulon (pancurium bromide) is a curare-derived agent which paralyzes all skeletal or voluntary muscles, but which has no effect whatsoever on awareness, cognition or sensation.
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10. Potassium chloride is an extraordinarily painful chemical which activates the nerve fibers lining the inmate's veins and which can interfere with the rhythmic contractions ofthe heart and cause cardiac arrest.
11. This particular combination of chemicals as administered by the Defendants will cause Plaintiff to consciously suffer an excruciatingly painful and protracted death.
12. Sodium pentothal is a short-acting barbiturate which is ordinarily used to render a surgical patient unconscious for mere minutes, only in the induction phase ofanesthesia, specifically so that the patient may re-awaken and breathe on their own power if any complications arise in inserting a breathing tube pre-surgery.
13. Because of its brief duration (usually about five to seven minutes), it is highly unlikely that sodium pentothal will provide a sedative effect throughout the entire execution process.
14. Due to the chemical combination used in the Maryland execution process, there is also a probability that the sedative effect of the sodium pentothal will be neutralized instantly by the second chemical, pavulon.
15. If Plaintiff is not adequately sedated, he will suffer an excruciatingly painful death by suffocation.
16. The second chemical involved in the lethal injection process, Pavulon, is a derivative of curare that acts as a neuromuscular blocking agent.
17. While Pavulon paralyzes skeletal muscles, including the diaphragm, it has no effect on consciousness or the perception of pain or suffering.
18. To the extent that the first chemical, sodium pentothal, is neutralized by the second, Pavulon, the paralytic chemical (Pavulon) will serve only to mask the excruciating pain ofPlaintiffs.
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19. The American Veterinary Medicine Association (AVMA) condemns the use of neuromuscular blocking agents such as Pavulon in the euthanasia of animals and a number of states have made the use ofPavulon on domestic animals illegal. Maryland is one ofthe majority ofStates to have banned its use. Md. Code Ann., Criminal Law, § 10-611 (2002);
20. The third chemical involved in the lethal injection process, potassium chloride is intended to cause cardiac arrest.
21. In practice, the administration ofpotassium chloride is extremely painful because, when administered intravenously, potassium chloride is inadequate to stop the heart and only arrests the pulmonary system. As a result, the prisoner simply suffocates due to lack of oxygen.
22. In addition, potassium chloride ravages the organs by causing an extremely painful burning sensation as it courses through the body.
23. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff in the lethal injection process is particularly grave in Maryland because members of the execution team believe that leakage from the IV during lethal injection is "normal." Both the 1994 and 2004 execution protocols reveal nothing to show that the team is prepared to deal with leaks like those that occurred during the execution of the late Tyrone X. Gilliam. During Mr. Gilliam's execution, witnesses observed a quantity of IV fluids puddling on the floor from the IV tubes. The team did nothing to ensure that an adequate dose of drugs reached Gilliam so that he did not suffocate while conscious, but paralyzed.
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24. This risk is also particularly grave in Maryland because the "Execution Procedures" designed by the Maryland Division Department of Correction:
a) specify different quantities of chemicals and numbers of syringes in the "checklist" attached to the "Execution Procedures" that must be filled out prior to and during each execution than in the "Execution Procedures" itself.
b) do not include safeguards regarding the manner in which the execution is to be carried out;
c) do not establish the minimum qualifications and expertise required of the personnel performing the critical tasks in the lethal injection procedure;
d) do not establish appropriate criteria and standards that these personnel must rely upon in exercising their discretion during the lethal injection procedures;
e) use "volunteers" to carry out the execution rather than trained individuals with proper credentials;
f) do not require the members ofthe execution team to have any specialized training in administering the chemicals utilized in lethal injections;
g) do not require the Warden, Assistant Warden, Assistant Commissioner Field Services, Correctional Maintenance Team, Execution Commander, and Execution Team to have any specialized training in administering the chemicals utilized in lethal injections;
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h) permit the Assistant Warden, who has no specialized credentials pertaining to carrying out an execution by lethal injection or the administration of the chemicals utilized in a lethal injection, to train and prepare all individuals who are to participate in the actual carrying out of the death sentence;
i) allow modifications to any and all of the procedures at any time, and without providing advance notice to any death-sentenced inmate; and,
j) allegedly were modified on May 26, 2004, after Plaintiff expressed concerns about Maryland's Execution Procedures. Because Plaintiffs execution is scheduled for less than three weeks after these alleged modifications, insufficient time exists for properly training the execution team and consulting medical experts to determine whether potential problems exist; thereby, increasing the likelihood that Plaintiffs execution will be anything but a painless death. VI. Claim I
25. Plaintiff incorporates paragraphs 1-25 by reference. 26. Frank Sizer, William Williams, Gary Hornbaker, and Unknown Executioners are acting under color of Maryland law in administering to Plaintiff chemicals that will cause unnecessary pain in the execution of a sentence ofdeath, thereby depriving Plaintiffhis rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, in violation of 42 U.S.c. § 1983.
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27. Frank Sizer, William Williams, Gary Hornbaker and Unknown Executioners have been aware since 1994 that they conduct lethal inj ection executions in violation ofthe delegation of authority conferred upon them by the Maryland General Assembly by failing to continuously administer an ultra short acting barbiturate. Likewise, Defendants have been aware since 1994, that the failure to continuously administer an ultra short acting barbiturate during a lethal injection execution poses an excessive risk that the inmate will be conscious or regain consciousness during the administration ofPavulon and Potassium Chloride.
28. Frank Sizer, William Williams, Gary Hornbaker and Unknown Executioners have been aware since 1998 that their execution procedures and training of Unknown Executioners is inadequate in establishing an IV line capable ofdelivering the quantity ofthiopental specified by the execution procedures, in detecting a leaking IV line during a lethal injection execution, and in devising and implementing procedures to be employed by Unknown Executioners when such a leak is detected during an execution and their unreasonable failure to provide such procedures and training creates a substantial risk Plaintiff will remain conscious during the subsequent administration of Pavulon and Potassium Chloride resulting in a death by suffocation and cardiac arrest that will be constitutionally unnecessarily cruel and unusual death.
29. Frank Sizer, William Williams, Gary Hornbaker and Unknown Executioners have been aware since 2002, that the American Veterinary Medical Association has banned the use ofPavulon in the euthanasia of animals and that the Maryland General Assembly has likewise prohibited the use of Pavulon in the euthanasia of animals and that the continued use of Pavulon creates a substantial risk that the Plaintiffs death by lethal injection will violates constitutional principles with respect to evolving standards of decency.
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30. Frank Sizer, William Williams, Gary Hornbaker and Unknown Executioners are acting with deliberate indifference to the Plaintiff s serious medical needs and their failures contained in paragraphs 28, 29 and 30 represent a mutually enforcing effect that produces the deprivation of Plaintiff s right to be free of unnecessarily cruel and unusual punishment.
31. The use of these three chemicals rather than the two prescribed by statute, under a successive rather than continuous administration of drugs, as well as the State's refusal to provide reliable information regarding a) its protocol, b) the training of the execution team, and c) how to deal with problems that may arise during the execution procedure, are wholly unnecessary to the carrying out Plaintiffs execution and increase the risk that Plaintiff will suffer an unnecessarily painful execution.
VII. Prayer for Relief 32. Plaintiffrequests that this Court grant a temporary restraining order and a preliminary injunction barring defendants from executing Plaintiff in the manner they currently intend. 33. Plaintiffrequests that this Court grant reasonable attorneys' fees pursuant to 42 U.S.C. § 1988 and the laws of the United States, as well as for costs of suit and any further relief that this Court deems just and proper.
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t Respectfully submitted,
P\retillall(h ~ 11....
FRED WARREN BENNETT MICHAEL E. LAWLOR
Ba i ore, Maryland 24 (41 539-4729
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DAVID M. BARRON} 1502 Main St. #209 Columbia, South Carolina 29201 (646) 279-6902
} Admitted in South Carolina.
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State of Maryland

VERIFICATION

County of Prince George
I, Fred Warren Bennett, attorney for Plaintiff in the above-entitled action, being duly sworn, state that to the best of my knowledge and belief, the facts sets for in this Complaint are true and correct to the best of my knowledge.

red Warren Bennett

L Subscribed and sworn to me this

~ day of June 2004.

MARllYNNE DOS REIS NOTARY PUBLIC STATE OF MARYLAND My Commission Expires March 15, 2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARY(A'NO' I

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STEVEN HOWARD OKEN, Plaintiff, v. FRANK C. SIZER, JR., Commissioner Maryland Division of Correction
WILLIAM WILLIAMS, Warden Maryland Correctional Adjustment Center Baltimore, Maryland GARY HORNBAKER, Warden Metropolitan Transition Center Baltimore, Maryland
and UNKNOWN EXECUTIONERS, Defendants.

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) PJM 04 CV 1 8 30
) No. _ _ _ __ ) ) DEATH WARRANT ) SIGNED ) ) EXECUTION ) IMMINENT ) ) ) EXECUTION ) SCHEDULED FOR ) THE WEEK OF JUNE ) 14 ) ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT
I. INTRODUCTION. This case is about Defendants' ability to extinguish human life in a manner consistent with the Eighth Amendment to the United States Constitution in the face ofcompelling evidence that they are incompetent to do so. It is about the Defendants' deliberate indifference to the Plaintiffs legitimate medical needs during lethal injection.

Mr. Oken seeks rehefunder42 U.S.c. §1983 from violations by state actors ofrights secured by the United States Constitution. Section 1983 provides, in pertinent part, for the protection of"any rights, privileges, or immunities secured by the Constitution and laws" against infringement by the states. When these rights are violated, §1983 creates an action for damages and injunctive relief for the benefit of "any citizen ofthe United States" against the state actor responsible for the violation. In accordance with the remedial nature of the statute, the coverage of 1983 must be "liberally and beneficently construed." Dennis v. Higgins, 498 U.S. 439, 443 (1991) (quoting, Monellv. New York City Dept. ofSocial Services, 436 U.S. 658, 684 (1978)). The United States Supreme Court has, therefore, "given full effect to [the statute's] broad language" by recognizing that §1983 provides a remedy "against all forms of official violation of federally protected rights." Id. at 444. More recently, the Supreme Court of the United States has recognized that a section 1983 action is an appropriate vehicle for seeking to enjoin a particular means of effectuating a sentence of death. Nelson v. Campbell, 2004 WL 1144374 (May 24,2004).
II. SUMMARY OF ARGUMENT Defendants intend to execute Mr. Oken during the week of June 14-18, 2004, in direct violation of federal and Maryland law and in a manner that likely will cause extreme pain and suffering. Executions by lethal injection in Maryland are governed by Md Code Ann., Correctional Services § 3-905, which requires the continuous administration of an ultra-short acting barbiturate in combination with a chemical paralytic agent. Maryland's "Execution Procedures" (administrative regulations for carrying out executions that will be followed in carrying out Plaintiffs execution) expressly do not utilize a continuous administration of a barbiturate. Moreover, the "Execution
2

Procedures" use three chemicals rather than two as permitted by the statute; one ofthese chemicals (potassium chloride) is not the type of chemical the statute permits.
Aside from the statutory violations, the current manner for carrying out lethal injections in Maryland violates the cruel and unusual punishment clause of the Eighth and Fourteenth Amendments to the United States Constitution. These provisions are violated when a punishment constitutes a lingering death as characterized by the unnecessary infliction ofpain beyond that which is necessary to inflict death, when such risk exceeds that permitted by the Eighth Amendment, or when the punishment no longer conforms with the evolving standards of decency. Maryland's "Execution Procedures" for lethal injection violates all each of these prongs.
The two chemicals authorized under Maryland's execution statute are likely to cause an extremely painful death for Mr. Oken. Sodium pentothal or thiopental (the barbiturate that acts as a sedative) begins to wear off almost immediately increasing the likelihood that Plaintiff will be conscious during his execution. The second chemical, pavulon, paralyzes the body and causes extreme pain in a conscious individual. For this reason, the American Veterinary Association along with 19 states including Maryland have recently banned its usage in the euthanasia of animals; a statistic proving that the usage of pavulon violates evolving standards of decency.
The risk that these two chemicals will cause conscious pain and suffering is increased in Maryland due to the documented botched execution of the late Tyrone X. Gilliam. During this execution, the last execution conducted in Maryland, unknown executioners fabricated a primary IV line which leaked immediately at the start of the execution and continued to drip lethal chemicals throughout the execution while unknown executioners stood by and did nothing. Defendants' deliberate indifference to Plaintiff's legitimate medical needs during the execution and/or the
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conditions of his confinement are amply reflected by the statement of an execution team member who believed leaks from the IV were "normal." This speaks volumes about the lack of adequate preparation and training of the "execution team" members and unknown executioners.
The problems with these chemicals utilized in Maryland lethal injections is that it causes unnecessary pain and suffering during an execution and will deny Mr. Oken the basic constitutional right to death with the "dignity of man." Thus, Mr. Oken is entitled to equitable relief in the form of a temporary injunction barring his execution until Defendants can bring their "Execution Procedures" into conformity with constitutional principles, and as explained in the next to last section ofthe argument, section 1983 is the appropriate vehicle to remedy these violations and issue the requested equitable relief.
Finally, Defendants refusal to disclose the "Execution Procedures," claims that the procedures have recently been changed without providing Mr. Oken with a copy of the procedures or at least a list of the changes that have been made, and the fact that these changes were made after Mr. Oken expressed concerns that Defendants' "Execution Procedures" violated the Eighth Amendment, not only is an attempt to manipulate the system, but the state courts failure to require their disclosure and other relevant documents which Defendants continue to withhold demonstrate the proceedings before the state courts were neither full or fair and accordingly do not operate as res judicata to this instant action. l
1 On June 12, 2004, Defendants provided Mr. Oken with a revised "Execution Operations Manual." It bears pointing out that this document is missing nine pages and provides different concentrations of chemicals depending on which part of the document a person reads.
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III. ARGUMENT
A. Overview of Relevant Legal Principles
1. Statutory Violations
"The delegation doctrine, prohibiting a legislative body from delegating its law making
function to any other branch of government or entity is a corollary of the separation of powers
doctrine which underlies both the Maryland and Federal Constitutions." Dep't Transp., et. aI, v.
Armacost, 311 Md. 64, 76-77, 532 A.2d 1056, 1062 (Md. 1987). Under this principle, regulations
promulgated by an administrative agency must be consistent with the letter and spirit of the law in
which the agency acts. Accordingly, it is "axiomatic that an administrative regulation must be
consistent with the letter and policy of the statute under which the administrative agency acts" for
a
legislatively delegated power to make rules and regulations is administrative in nature, and it is not and cannot be the power to make laws; it is only the power to adopt regulations to carry into effect the will of the legislature as expressed by the statute. Legislation may not be enacted by an administrative agency under the guise of its exercise 0 f t he power tom ake rules and regulations by issuing a rule 0 r regulation which is inconsistent or out of harmony with, or which alters, adds to, extends or enlarges, subverts, impairs, limits, or restricts the act being administered.
Insurance Com'rofStateofMd. v. Bankers, 326 Md. 617, 623-24, 606 A.2d 1072,1075 (Md.1992).2
2 Plaintiff herein does not submit this violation of Maryland law as substantive grounds for relief but rather, as concrete evidence of the Defendants' deliberate indifference to the Plaintiffs health and safety and right to be free of an unnecessarily cruel and unusual punishment. See Odom v. South Carolina Dept. o/Corrections, 349 F.3d 765, 770 (4th Cir. 2003); see also Wilson v. Seiter, 501 U.S. 294, 302 (1991) ("[W]e see no significant distinction between claims alleging inadequate medical care and those alleging inadequate conditions of confinement.") .
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2. Cruel and Unusual Punishment under the Eighth Amendment. An inquiry into whether an execution procedure violates the Eighth Amendment focuses on: 1) the physical pain inflicted during an execution; 2) the risk of pain during an execution; and 3) whether evolving standards of decency condemn the method of execution. First, a punishment is cruel when it involves "something more than the mere extinguishment of life," such as "torture or a lingering death." In re Kemmler, 136 U.S. 436, 447 (1890). This definition, however, "proscribes more than physically barbarous punishments." Estelle v. Gamble, 429 U.S. 97, 102 (1976). It "forbids the infliction of unnecessary pain in the execution ofthe death sentence." Louisiana ex rei. Francis v. Resweber, 329 U.S. 459, 463 (1947); accord Gregg v. Georgia, 428 U.S. 153, 173 (1976) (holding that the Eighth Amendment prohibits punishments that "involve the unnecessary and wanton infliction of pain"). Among the 'unnecessary and wanton' inflictions of pain are those that are "nothing more than the purposeless and needless imposition of pain and suffering," Francis, 329 U.S. at 463, and those that are "totally without penological justifications." Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg, 428 U.S. at 183; citing Gamble, 429 U.S. at 103). Thus, in determining whether a punishment constitutes unnecessary pain, a court must judge the cruelty of the method of execution in light of currently available alternatives. Furman v. Georgia, 408 U.S. 238, 430 (1970) (Powell, J., dissenting) ("[N]o court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives."). Second, lurking in the background of whether a punishment is cruel and unusual is the risk of error that the Eighth Amendment tolerates. In capital cases, as in other cases, the teaching ofthe Supreme Court's cases is that Eighth Amendment adjudication cannot proceed just by correcting
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ugly but isolated instances of deviation from generally acceptable standards of procedure. Rather, it must be concerned with assuring that general procedures themselves are adequately designed and maintained to avoid undue risks of inflicting inhumane punishments. Farmer v. Brennan, 511 US. 825, 846 (1994) (acknowledging that the focus ofthe inquiry is whether there exists an "objectively
intolerable risk of harm"); Helling v. McKinney, 509 us. 25, 33 (1993) (holding that the "Eighth
Amendment analysis "requires a court to assess whether society considers the risk that the prisoner complains ofto be so grave that it violates contemporary standards ofdecency"); Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994) (holding that an Eighth Amendment challenge to a method of execution must be considered in terms of the risk of pain).
Finally, the cruel and unusual punishment clause has an "expansive and vital character," Weems v. United States, 217 US. 349, 373 (1909), that has been interpreted "in a flexible and dynamic manner." Stanford v. Kentucky, 492 US. 361, 371 (1989). Consistent with this expansive and flexible reading, the cruel and unusual punishment clause" draw[s] its meaning from the evolving standards of decency that mark the progress ofa maturing society," Trop, 356 US. at 101; accord Penry v. Lynaugh, 492 US. 302,331 (1989), as evaluated "in light of contemporary human knowledge." Robinson v. California, 370 US. 660, 666 (1962). "Although the Constitution contemplates ... that the Court's judgment will be brought to bear ... , to the maximum extent possible, [these] 'evolving standards should be informed by objective factors,'" Atkins v. Virginia, 536 US. 304, 312 (quoting Penry, 492 US. at 331, Rummel v. Estelle, 445 US. 263, 274-75 (1980)),3 which include historical evidence, the consensus of the international community, and
3 See also Thompson v. Oklahoma, 487 US. 815 (1988) (invalidating the death penalty for fifteen-year olds, noting that all eighteen states to consider a minimum age for imposing the death penalty require a defendant to be at least sixteen years of age); Enmund v. Florida, 458
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legislative developments within the states. Atkins, 536 U.S. at 312-16; see also Thompson v. Oklahoma, 487 U.S. 815,830-31 (1988) (recognizing that international law is a legitimate factor for this Court to consider as an obj ective indicator ofcontemporary standards). According to the Court, "[t]he clearest and most reliable objective evidence ofcontemporary values is the legislation enacted by the countries legislatures." Id. at 312 (quoting Penry, 492 U.S. at 331). But, the number of states enacting legislation is not as important as the "consistency ofthe direction of change." Atkins, 536 U.S. at 315.
3. Standards for granting injunctive relief. Injunctive relief and declaratory judgment are equitable remedies that are granted in the discretion ofthe court. The factors that must be applied in determining whether to grant injunctive reliefare: 1) the likelihood ofirreparable harm to the Plaintiffifthe preliminary injunction is denied; 2) the likelihood of harm to the Defendant if the injunction is granted; 3) the likelihood that the Plaintiffwill succeed on the merits; and, 4) the public interest. Blackwelder Furniture Co. v. Seilig Manufacturing Co., Inc., 550 F.2d 189, 194-96 (4th Cir. 1977). These factors are not of equal weight; the first two factors are the most important. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 2001). "If the hardship balance tilts sharply in the plaintiffs favor, the required proof oflikelihood of success is substantially reduced." Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 817 (4th Cir. 1992). These four factors also govern the issuance of equitable relief in actions predicated on 42 U.S.C. section 1983. Mitchum v. Foster, 407 U.S. 225,
U.S. 782, 786-88 (1982) (invalidating the death penalty for felony murder, emphasizing that only eight of thirty-six jurisdictions authorized similar punishments); Coker v. Georgia, 433 U.S. 584, 592 (1977) (holding that it was cruel and unusual punishment to impose a death sentence for rape, where only three states permitted such a sentence).
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242-43 (1972); Eisenberg ex rei. Eisenberg v. Montgomery County Public Schools, 197 F.3d 123, 127 (4th Cir. 1999); Cinema Blue o/Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 51-52 (4th Cir. 1989); Jones v. Board o/Governors o/University o/North Carolina, 704 F.2d 713, 715 (4th Cir. 1983). B. The Department of Corrections has no Authority to Carry Out Plaintiff's Execution
under its "Execution Procedures" Because the Procedures Violate the "Methods of Execution" Adopted by the State Legislature The relevant Maryland statute proscribing the manner of execution in Maryland, Md. Code Ann., Corr. Serv., §3-905, provides that: The manner ofinflicting the punishment ofdeath shall be the continuous intravenous administration ofa lethal quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medical practice. Thus, the Legislature has required that (a) executions be carried out by the use of an (i) ultrashort-acting barbiturate or other similar drug in combination with (ii) a chemical paralytic agent; and (b) that the administration ofthe ultrashort-acting barbiturate be continuous. Notwithstanding these very specific codified rules, Defendants have enacted an execution protocol that they intend to use to kill Mr. Oken that: (a) uses a third chemical not prescribed by the statute, potassium chloride, and (b) does not call for the "continuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate or other similar drug." The Legislature in this case enacted a statute that is plain in language and specific in its requirement. Notwithstanding this specific prescription, Defendants have ignored the statute and have enacted protocols that add a third chemical to the execution process, potassium chloride, and also fail to require the continuous administration of the barbiturate. These execution protocols are "inconsistent or out of harmony with" and "alters, add to, extend or enlarge. .. the act being
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administered." Thus, the Department of Corrections has no authority to carry out Plaintiffs execution under the "Execution Procedures," and, by doing so, they would be allowed to create legislation; thereby, violating the separation ofpowers doctrine. See Insurance Cam'r ofState afMd. v. Bankers, 326 Md. 617,623-24,606 A.2d 1072, 1075 (Md. 1992). C. Lethal Injection as it is Currently Carried 0 ut in Maryland Violates the Eighth
Amendment Cruel and Unusual Punishment Clause. Maryland's current lethal inj ection process under the "Method of Execution" statute and the Department of Corrections' "Executions Procedures" violates the Eighth Amendment because it constitutes the unnecessary infliction of pain, creates an unacceptable risk of pain during the execution, and violates evolving standards of decency. 1. The combination of chemicals used to execute inmates in Maryland creates a
strong probability of unnecessary suffering and torture Defendants intends to execute Mr. Oken by poisoning him with a lethal combination ofthree chemical substances: Sodium Thiopental, or Sodium Pentothal (an ultrashort-acting barbiturate that begins to wear off almost immediately); Pancuronium Bromide, or Pavulon (a curare-derived agent which paralyzes all skeletal or voluntary muscles, but which has no effect whatsoever on awareness, cognition or sensation); and potassium chloride (an extraordinarily painful chemical which activates the nerve fibers lining the inmate's veins and which can interfere with the rhythmic contractions of the heart and cause cardiac arrest). The execution protocols enacted by the Division of Correction state as much:
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a. Pentothal (Thiopental) 2 grams (G)4
b. Pavulon (Pancurium Bromide) 50 milligrams (MG)
c. Potassium Chloridel150 milliequivalents (MEQ)
State of Maryland Department of Public Safety and Correctional Services Division of Correction,
Division of Correction ManualllO-2 Execution Procedures (Exhibit 9 (Vol. I), Appendix A).5
The chemicals used by Defendants are identical to those used by other states which use lethal
injection as a method of execution. See Exhibit 9 (Vol. I), Appendix A (Affidavit of Dr. Mark
Heath, M.D.) see also Deborah Denno, When Legislatures Delegate Death: The Troubling Paradox
Behind State Uses o/Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J.
106, n. 303 (2002) [hereinafter Denno, Lethal Injection]. While there are concerns about whether
any of these chemicals should be used in the execution process, it is clear that combining these
chemicals violates constitutional protections. Far from producing a rapid and sustained loss of
4 After Mr. Oken filed in the Maryland courts asserting that 2 grams of Thiopental was exceedingly low vis-a-vis the protocols of other states and the federal government, see Affidavit of Mark Heath at ~ 15, Defendants suddenly increased the level to 4.5 grams. See 2004 Execution Operations Manual Execution Checklist Contents of Syringes (May 26, 2004); see also, Hill v. Ozmint, characterizing 2 grams of thiopental as low compared to the rest of the states.
5 At other points, the "Execution Procedures" are internally inconsistent and specify different quantities ofpavulon and potassium chloride. The "Lethal Injection Procedures Check Sheet," appendix 13-A of the "Execution Procedures," refers to 100 mg ofpavulon in each of two syringes dissolved in 60 cc rather than 50 mg dissolved in 50 cc. It also refers to 100 meq of potassium chloride in each of two syringes dissolved in 60 cc rather than 50 meq in each of two syringes dissolved in 50 cc. The 2004 Execution Operations Manual likewise contains inconsistent and erroneous quantities. These protocols specify the administration of"10 mEq.[milliequivalents for each syringe]" this is erroneous. Instead of 10 mEq it should be 10mg (micrograms) ofPavulon. Likewise, the specified quantity of thiopental fluctuates. Compare Contents of Syringe [speciyfing 4.5 grams] "#1 Color Coded Red"; with id. "Total Injection" specifying 3.0 grams.
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consciousness and humane death, the particular combination ofchemicals utilized in Maryland often causes the inmate to consciously suffer an excruciatingly painful and protracted death; the sequence ofthe administration ofthe chemicals and failure to provide professional medical monitoring ofthe effects of the drugs, virtually assures that the objectionable character of the execution will go undetected.
a. Sodium pentothal Sodium thiopental, or sodium pentothal, which is commonly used during surgery as an introductory anesthetic, is an ultra short-acting barbiturate that renders the patient unconscious for only a few minutes. Thus, the patient may re-awaken and breathe on his or her own power if any complications arise in inserting a breathing tube pre-surgery. Sodium thiopental begins to wear off immediately and will "dissipate after five to seven minutes." State v. Webb, 750 A.2d 448,451-52 (Conn. 2000); accord, Drug Companies and Their Role in Aiding Executions, available at, www.ncadp.org/html/report.htm. quoting, Dr. Lawrence Egbert, Visiting Assistant Professor of Anesthesiology, John Hopkins Medical School (stating that sodium pentothal "begins to wear off almost immediately, rendering the person conscious within minutes"), attached as Exhibit 9 (Vol. I), Appendix C. Because of sodium pentothal's brief duration, Maryland's failure to provide a continuous administration ofsodium pentothal, the likelihood that the pentothal would not reach the inmate's bloodstream, and the low quantity administered, sodium pentothal may not provide a sedative effect throughout the entire execution process --which lasts more than seven minutes. According to Dr. Mark Heath, Assistant Professor 0 f Clinical A nesthesia at Columbia University, "the use of a continuous administration of the ultrashort-acting barbiturate is essential to ensure continued and sustained unconsciousness during the administration of pancurium and
12

potassium chloride." As Dr. Dennis Geiser, the chairman of the Department of Large Animal Clinical Sciences at the College of Veterinary Medicine at the University of Tennessee, recently explained:
Sodium thiopental is not a proper anesthetic for use in lethal injection. Indeed, the American Veterinary Medical Association standards for euthanasia indicate that the ideal barbituric acid derivative for animal euthanasia should be potent, long acting, stable in solution, and inexpensive. Sodium pentobarbital (not sodium thiopental) best fits these criteria. Sodium thiopental is a potent barbituric acid derivative but very short acting with one therapeutic dose. Exhibit 9 (Vol. I), Appendix D (Affidavit ofDr. Dennis Geiser, in the case of Texas v. Jesus Flores, No. 877,994A). As noted, Defendants have ignored the General Assembly's instruction to administer Thiopental continuously which would significantly reduce the substantial harm which the Plaintiff now faces. Defendants' attempts at the eleventh hour to increase the Thiopental administration to 4.5 grams fails to remedy the excessive risk to Plaintiff s Eighth Amendment rights being violated, as discussed below. Maryland's "Execution Procedures" creates a high risk that the sodium thiopental will not reach the inmate's bloodstream, rendering the inmate conscious throughout the execution. Due to the chemical combination used in the Maryland execution process, there is also a probability that the sedative effect of the sodium pentothal is neutralized by the second chemical, pavulon. As Dr. Heath states:
13

Sodium Thiopental is not used to maintain a patient in a surgical plane of anesthesia for purposes of performing surgical procedures. It is unnecessary, and risky, to use a short-acting anesthesia in the execution procedure. If the solution 0 f sodium thiopental comes into contact with another chemical, such as pancurium bromide, the mixture of the two will cause the sodium thiopental immediately to crystallize. These factors are significant in the risk ofthe inmate not being properly anesthetized, especially since no-one checks that the inmate is unconscious before the second drug is administered.
Exhibit 9 (Vol. I), Appendix B (Affidavit of Dr. Heath).
These concerns with the usage of sodium thiopental are heightened by the lack of medical
personnel,6 the lack of proper monitoring of the inmate during the process, and the lack of inmate-
specific dosage of the barbiturate. According to Dr. Geiser:
[T]he dosage ofthiopental sodium must be measured with some degree ofprecision, and the administration of the proper amount of the dosage will depend on the concentration ofthe drug and the size and condition ofthe subject. Additionally, the drug must be administered properly so that the full amount ofthe dosage will directly enter the subject's blood stream at the proper rate. Ifthe dosage is not correct, or if the drug is not properly administered, then it will not adequately anaesthetize the subject, and the subject may experience the untoward effects a/the neuromuscular blocking agent. ...
Exhibit 9 (Vol. I), Appendix D, Affidavit of Dr. Dennis Geiser, in the case of Abu-Ali Abdur'
Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000) (emphasis supplied). Thus, "[e]ven a slight error in
dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness
ofhis or her own slow, lingering asphyxiation." Heckler v. Cheney, 718 F.2d 1174, 1191 (D.C. Cir.
1983).
6 The shelf life of sodium pentothal is extremely short meaning that an improper conversion of the solid form into the liquid form or letting the chemical sit for too long will prevent the chemical from having its normal effect of rendering the inmate unconscious. See Exhibit 9 (Vol. I), Appendix B (Affidavit of Dr. Heath).
14

"In order to determine the proper concentration of lethal injection chemicals, chemicals should be designated in two ways: 1) by weight ... and 2) by volume. The volume of diluent for chemicals should be I) at least large enough so that all the chemicals will be dissolved, and 2) sufficiently dilute so that it will not irritate the inmate's vein and cause the inmate pain" or clog the veins. Denno, Lethal Injection, at 119. Furthermore, because people differ in physiological composition "as well as their drug tolerance ... some prisoners may need a far higher dosage of sodium thiopental than others 'before losing consciousness and sensation. '" !d. at 108, citing, Affidavit of Brunner, infra; see also, Webb, 750 A.2d at 452 (noting that "the effect of thiopental sodium varies from person to person"). By administering the same quantity of sodium pentothal to all inmates subject to execution while not specifying the volume or concentration of the chemical, Maryland's usage of sodium pentothal during lethal injection creates a high probability that the inmate will not be rendered unconscious before the other drugs are administered.
Not only is there a high probability that sodium pentothal will not serve its only purpose during lethal injection, to render the inmate unconscious, but it also creates a high probability that the inmate will suffer a painful and excruciating death. Drug manufacturers warn that without careful medical supervision ofdosage and administration, sedatives including sodium pentothal can cause "paradoxical excitement" and can heighten sensitivity to pain. See Physicians Desk Reference, 56th Ed. (2002) at 485-87,877. Exhibit 9 (Vol. I), Appendix E. For this reason, manufacturers warn against administration by intravenous injection unless a patient is unconscious or out of control. !d. Moreover, sodium pentothal is likely to cause a person to choke or gag and aspirate stomach contents when administered within eight hours of consuming any food or beverage. See Denno, Lethal
15

Injection, at 123, citing, Affidavit of Edward A. Brunner, M.D., Ph.D., Exhibit B of Verified
Complaint in Chancery, Gacy v. Peters, No. 94 CH (Ill. April1994).
As demonstrated above, it is predictable that sodium pentothal will either fail to render the
inmate unconscious causing the inmate to suffer excruciating pain from the other chemicals
administered including the pain ofsuffocation or will cause unnecessary pain in and ofitself. In fact,
this has repeatedly been the case in both North and South Carolina (both states administer the same
quantity of sodium thiopental as Maryland), where, unlike Maryland, autopsies are conducted after
an execution, and where Dr. Dershwitz appeared as an expert for the government.
1. District of South Carolina's findings concerning Dr. Dershwitz.
A little more than two months ago the United States District Court for the District of South
Carolina, a jurisdiction not typically known for judicial activism, not only found that Dr. Heath's
sworn averments with respect to the manner oflethal injection as conducted in that state made out
a prima facie Eighth Amendment violation, but that Dr. Dershwitz's (the Defendants' expert)
averments failed to address those concerns:
First and foremost, the affidavits before the court raise issues concerning the procedures used in South Carolina and whether it is adequate to safeguard against the wanton infliction of pain. The affidavits indicate that the first drug administered in the execution process is two grams ofthiopental (Pentothal Sodium) diluted in a total volume of 80 ml. The apparent purpose of this drug is to render the subject unconscious, and defendants expert Dr. Mark Dershwitz, avers that this dosage is at least five time the dosage used to anesthesize a patient for surgery (Affidavit ~ 17), and would render him unconscious for two hours (Affidavit ~ 13). Further, he avers to varying degrees ofprobability whether a subj ect would be conscious after varying periods of time. (Affidavit ~~ 9,10,11,12). He attaches a chart to his affidavit entitled, "Blood Concentration After 2 Grams of Thiopental Sodium in the Average Man within 20 Minutes." However the chart and the probabilities are clearly for a blood concentration in the neighborhood of300 to 400 mcg/ML, that is, for a patient in surgery. If the affidavit is taken at face value and adjustments made for the varying calculations, then it is highly supportive of defendant's position.
16

However the affidavit from Dr. Mark Heath, plaintiffs expert, raises issues not mentioned or considered by Dr. Dershwitz or reflected in the South Carolina Execution Procedures (South Carolina Department of Corrections SK-22.03 dated May 1, 2002 attached to defendant's brief). These include the lack of safeguards to protect against errors, including, among othe[r] things, errors in the inj ection process, such as mistakes in the dilution and administration of the thiopental. Dr. Heath also notes that despite Dr. Dershwitz's assurances that the two grams dilution of thiopental is more then adequate, other states using lethal injection as a means of execution, including apparently the federal government have adopted a protocol for five grams of thiopental.
While the importance ofthe thiopental in preventing the wanton infliction of pain is recognized by all of the parties, plaintiffs concerns do not end there and include issues such as "cut-down" procedures to access an appropriate vein, the training and supervision of those carrying out the execution, and the lack of involvement by a supervising medical professional. Clearly these are serious issues going to the merits, so as to make them fair grounds for litigation and thus more deliberate investigation.
Hill v. Ozmint, CIA No. 2:04-04S9-BAJ (D.C.S.C. March 4, 2004) at 5 (footnotes omitted)
(Appendix 12 to Complaint).?
7 To the extent that Defendants may allege that they have changed the procedures or increased the dosage of sodium thiopental (after Mr. Oken raised concerns about the execution procedure), they have failed to address or adequately resolve the constitutional issues presently before this Court. Defendants' submissions with respect to sodium thiopental are purely theoretical. That is to say, the State of Maryland is not going to execute Mr. Oken inside Dr. Dershwitz's computer. Instead, Mr. Oken will be executed in the real world at the Death Chamber in Baltimore. Although superficially appealing, the flaw in the Defendants' argument, and Dr. Dershwitz's projections, is that neither of them makes any exception for realistic and potential problems. For example, Defendants assume that both the Department of Corrections' supply of thiopental has been stored in a manner which retains its potency, and that members of the execution team correctly mix and prepare the thiopental so that the syringe marked RED [thiopental] in the execution chamber in fact contains 4.5 grams of injectable thiopental. Defendants (and Dr. Dershwitz) also assume that the full 4.5 grams in the syringe enters the inmate's blood stream. Both Defendants and Dr. Dershwitz make these assumptions. Having failed to take real world factors into account prior to loading the thiopental into the syringes, no real world factors into account during the thiopental's administration. In other words, all of the Defendants' arguments regarding thiopental take place in a pristine theoretical vacuum.
The heart of the matter is reached in Dr. Dershwitz's Table D through which he generates dizzying statistical probabilities regarding Mr. Oken's likelihood of being unconscious at eighty
17

2. North Carolina toxicology results. By extrapolating Dr. Dershwitz's theoretical model and applying it to inmates executed in North Carolina for whom blood levels of thiopental are available, as measured by the North Carolina Office of the Chief Medical Examiner, it becomes quite clear that Dr. Dershwitz's theoretical model bears little or no relationship to the real world. For example, when North Carolina executed Desmond Keith Carter, the Medical Examiner ascertained that Mr. Carter's blood contained only "trace" amounts of thiopental. See Exhibit 17 (Vol. I), Appendix K (Toxicology Report of Desmond Keith Carter). Assigning 2.6 mg/L for "trace amounts" and plotting this value on Table D produces a probability of consciousness for Mr. Carter of 100%. See Exhibit 17 (Vol. I), Appendix L (Toxicology Report of Desmond Keith Carter's Postmortem Blood Concentration of Thiopental as Plotted on Dr. Dershwitz's Table D). In the same fashion, plotting the 2.6 mg/L of thiopental found in Mr. Arthur Martin Boyd's blood, Exhibit 17 (Vol. I), Appendix M (Toxicology Report of Arthur Martin Boyd), likewise, produces a 100% probability of consciousness. See Exhibit 17 (Vol. I), Appendix N (Toxicology Report of Arthur Martin Boyd's Postmortem Blood Concentration of Thiopental as Plotted on Dr. Dershwitz's Table D). Plotting Michael Earl Sexton's thiopental blood value of 3.7 mg/L, Exhibit 17 (Vol. I), Appendix 0 (Toxicology Report of Michael Earl Sexton), produces a 100% probability that he was conscious. See Exhibit 17 (Vol. I) Appendix P (Toxicology Report ofMichael Earl Sexton's Postmortem Blood
seconds, id. at ~ 8 (99.99999 %), at five minutes, id. a~ 9 (0.00006 %), and at ten minutes, id. at ~10 (0.003 %). At bottom, this modeling as defendants (and their expert) assumes that 4.5 grams of thiopental in the syringe equates with 4.5 grams of thiopental in the blood stream. Dr. Dershwitz's modeling does not accurately predict the quantity of thiopental in the blood stream. When real world thiopental blood levels are plotted on Dr. Dershwitz's Table D, those levels demonstrate a probability of consciousness as high as 100%.
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Concentration ofThiopental as Plotted on Dr. Dershwitz's Table D). Plotting Ronald Wayne Frye's thiopental blood value of 8.2 mg/L, Exhibit 17 (Vol. I) Appendix Q (Toxicology Report of Ronald Wayne Frye), produces a 40% probability that he was conscious. See Exhibit 17 (Vol. I) Appendix R (Toxicology Report of Ronald Wayne Frye's Postmortem Blood Concentration of Thiopental as Plotted on Dr. Dershwitz's Table D).
3. South Carolina toxicology results. Eerily similar results have also occurred in South Carolina. Based on Dr. Dershwitz's modeling, at the trial of this case, Petitioners' expert would be forced to concede that there was a 50% probability that Messrs. Larry Gilbert (thiopental blood level 7.1 mg/L ), Louis Truesdale (thiopental blood level 7.5 mg/L), and Richard Johnson (thiopental blood level 7.8 mg/L) were conscious when Petitioner Unknown Executioners injected them with Pancurium Bromide and Potassium Chloride, while there was a 90% probability that Ronald Howard (thiopental 1evel "detected"), Kevin Dean Young (thiopental blood level 3.4 mg/L), and Michael Passaro (thiopental blood level 6.1 mg/L), were conscious during their executions. In short, approximately, one quarter of all individuals subjected to lethal injection in South Carolina were conscious while they were chemically suffocating from Pancurium Bromide (banned in this state for the euthanasia ofanimals), and suffering the agony of a potassium chloride induced heart attack. Indeed, by plotting Mr. Howard's Sodium Thiopental blood levels onto Dr. Dershwitz's Exhibit D,s it becomes quite clear that Dr. Dershwitz's chart reveals a 100% probability that Mr.
8 As Dr. Dershwitz explains, Exhibit D was created from his pharmacodymamic analysis which shows the "probability that an average man will be conscious as a function of the blood concentration of thiopental. In other words, the concentrations of thiopental." Affidavit of Dr. Dershwitz at ~7.
19

Howard was conscious throughout his execution (Toxicology Report of Ronald Howard as Postmortem Blood Concentration of Thiopental as Plotted on Dr. Dershwitz's Exhibit D) (Exhibit 17 (Vol. I), Appendix T). Similarly, Mr. Young's thiopental level establishes a 100% probability that he too was conscious throughout his execution. (Toxicology Report of Kevin Dean Young Postmortem Blood Concentration of Thiopental as Plotted on Dr. Dershwitz's Exhibit D) (Exhibit 17 (Vol. I), Appendix V). Moreover, there is a 90% probability that Mr. Michael Passaro was conscious throughout his execution. (Toxicology Report of Michael Passaro Postmortem Blood Concentration ofThiopental as Plotted on Dr. Dershwitz' s Exhibit D) (Exhibit 17 (Vol. I), Appendix X)); see also, (Toxicology Report of Larry Gilbert Postmortem Blood Concentration of Thiopental as Plotted on Dr. Dershwitz's Exhibit D)(Exhibit 17 (Vol. I), Appendix Z)); Toxicology Report of Louis Truesdale Postmortem Blood Concentration of Thiopental as Plotted on Dr. Dershwitz's Exhibit D)(Exhibit 17 (Vol. I), Appendix BB).
4. Reliability ofthe North Carolina and South Carolina toxicology results. Defendants may assert, as has been done in other states, that post mortem blood levels from North and South Carolina are not reliable as the blood samples were "inconsistent and probably improper." Although Dr. Dershwitz has asserted that it is "imperative" that the blood be drawn from the heart, he will not go so far to say the samples from South Carolina were not obtained from the heart. His criticism with respect to the North Carolina samples is even more tepid. Affidavit ofDr. Dershwitz at ~ 22. Of course, such restrained criticism is not surprising as he well knows it is unclear whether these samples were in fact obtained from the heart. Moreover, when Dr. Dershwitz opines with respect to matters of pathology he has left his area of expertise which is the
20

"phannacodynmics and pharmacokinetics ofdrugs in the living," not the measurement ofdrugs post-

mortem.

Contrary to Dr. Dershwitz's statements, sodium thiopental levels drawn from the heart are

misleading because it includes thiopental concentrations that have seeped in from the liver; thereby,

making the concentration higher than that which actually reached the brain - - which controls

consciousness. Nonetheless, the location where the blood is drawn fails to explain the discrepancies

that have been seen with some of the thiopental levels in South Carolina. Although many of the

thiopental levels show that the inmate is conscious during the execution, a few of the thiopental

levels are high. This discrepancy demonstrates that a problem is occurring during lethal injections

in that while some inmates are receiving a sufficient dosage ofthiopental to cause unconsciousness,

many are not. This problem is greatly exacerbated in Maryland because the last execution conducted

in the state involved a leaking IV line, which despite Defendants' claim that this is normal, clearly

proves that the full dosage of thiopental did not reach the inmate. Thus greatly increasing the risk,

beyond that ofany other state, that the thiopental will not cause unconsciousness or that a sufficient

amount of thiopental will not reach the inmate; a risk that is more than the Eighth Amendment will

tolerate.

b.

Pavulon9

The second chemical involved in the lethal injection process, pavulon is a derivative ofcurare

that acts as a neuromuscular blocking agent. In other words, pavulon paralyzes the body and

9 As evidenced by both the Defendants' disregard for the legislative grant of authority and the Maryland Court of Appeals' opinion, a finding that Pavulon's use violates the evolving standards of decency does not require new legislation but, rather, merely an order instructing the Defendants to cease its administration.
21

collapses the organs causing suffocation. If the sedative effect ofthe sodium pentothal is ineffective
or neutralized, as is probable in the Maryland execution process particularly since Maryland has a
history ofleaking IV lines during an execution and a beliefthat such leakage is normal, the pavulon
would serve only to mask the excruciating pain ofthe condemned inmate while he or she suffocates
to death.lO
In the lethal injection process, Pancuronium bromide makes the prisoner appear serene because ofits paralytic effect on the muscles. The facial muscles cannot move or contract to show pain and suffering, and become relaxed and thereby generate an impression of tranquility. Pancuronium therefore confers a >chemical veil= to the procedure. Because pancurionium bromide is an invisible chemical veil and not a physical veil like a blanket or hood that is easily identifiable, the use ofthis chemical in lethal injection deceives observers into believing they have witnessed a humane event. Pancuronium obscures the fact that there is a disguise over the process. Thus, visual monitoring by citizen witnesses, counsel for the inmate, medical and prison personnel is rendered meaningless, as these individuals are unable to make any determination as to whether the procedure is humane.
Exhibit 9 (Vol. I), Appendix B (Affidavit of Dr. Heath).
InAbdur'Rahman v. Bell, Dr. Geiser asserted that while Pavulon paralyzes skeletal muscles,
including the diaphragm, it has no effect on consciousness or the perception ofpain or suffering.
Administration ofPavulon is like being tied to a tree, having darts thrown at you, andjeeling the
pain without any ability to respond. Exhibit 9 (Vol. I), Appendix D (Affidavit ofDr. Dennis Geiser
in the case of Abu-Ali Abdur' Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), cert. granted on other
grounds, 122 S.Ct. 1463 (U.S. April 8, 2002) (No. 01-9094) (emphasis added)). This assertion is
corroborated by the experience ofeye surgery patient, Carol Weihrer. During Ms. Weihrer's surgery,
10 In this situation, the inmate would suffer an extremely painful and lengthy death by suffocation, which has been held unconstitutional by the Ninth Circuit. See Fierro v. Gomez, 77 F.3d 301,308 (9th Cir. 1996) (holding that execution by lethal gas violated the Eighth Amendment because the inmate is likely to be conscious for fifteen seconds to one minute, and, during this period, the inmate is likely to suffer the intense physical pain of suffocation).
22

the sedative she received was ineffectual meaning that Ms. Weihrer was conscious of the entire surgery. Due to the administration of a neuromuscular blocking agent like pancuronium bromide, however, she was unable to indicate her consciousness to doctors:
I therefore experienced what has come to be known as Anesthesia Awareness, in which I was able to think lucidly, hear, perceive and feel everything that was going on during the surgery, but I was unable to move. It burnt like the fires ofhell. It was the most terrifying, torturous experience you can imagine. The experience was worse than death. Exhibit 9 (Vol. I), Appendix F (Affidavit of Carol Weihrer at ~ 1 in the case of Texas v. Jesus Flores, No. 877,994A). Thus, the combination ofthese kinds of chemical resulted in the horrifying experience in which a person who appeared sedated to trained medical personnel closely monitoring the operation actually was fully sensitive to the horrifying agony ofhaving her eyeball removed, but was disabled from displaying her agony. "Intraoperative awareness" is a well-recognized complication of general anesthesia, and discussed at length in the professional literature. Also, significant professional medical research and training are directed at decreasing the incidence of these events. Pavulon, not only is likely to cause severe pain, but is arbitrarily used because it serves no legitimate purpose in an execution. Pavulon was originally intended to cause death, but with the advent ofpotassium chloride to serve this purpose, Pavulon is unnecessary in the execution process. The current usage ofPavulon only serves to guarantee that the condemned inmate will be forced into a state of"chemical entombment" while the inmate consciously experiences the potassium chloride ravaging his internal organs. Persons viewing the lethal injection procedure and the public will never realize that a cruel fraud is being perpetrated upon them; instead of witnessing an inmate quiet and
23

motionless while being "put to sleep," they witness the cover-up of a deliberate act of excruciating torture during which the inmate may be fully conscious.
In sum, the usage of pavulon in an execution violates the Eighth Amendment both because it serves no legitimate purpose and because it causes excruciating pain, which is concealed from observers.
c. Potassium Chloride The third chemical u sed, potassium chloride, also raises important Eighth Amendment concerns because it causes an extreme burning sensation. Therefore, if an inmate is not properly anaesthetized, the inmate will suffer an excruciatingly painful death while the burning of the potassium chloride ravages his organs. Denno, Lethal Injection, supra; Drug Companies and Their Role in Aiding Executions, supra. Exhibit 9 (Vol. I), Appendix G. 2. The danger that Lethal Injection will create unnecessary suffering and torture
is greatly increased by t he lack 0 f physician involvement in the execution process The risk of inflicting severe and unnecessary pain and suffering upon Mr. Oken during the lethal injection process is particularly grave in Maryland because the meager procedures and protocols designed by the Maryland Division of Correction fail to include safeguards regarding the manner in which the execution is to be carried out, fail to establish the minimum qualifications and expertise required ofthe personnel performing the critical tasks in the lethal injection procedure, and fail to establish appropriate criteria and standards that these personnel must rely upon in exercising their discretion during the lethal injection procedures. Furthermore, there are no available directions or standards for the necessary training, education, or expertise ofthe personnel who will be exercising this critical discretion and performing
24

these tasks and duties and the most recent disclosures by the Defendants does nothing to address the
Plaintiff's significant concerns and likelihood Defendants will not botch execution as well. The
Maryland execution protocols completely fail to articulate the criteria or standards that such
personnel must rely upon in exercising this discretion. The consequences of this failure will likely
result in the unnecessary and wanton infliction of severe pain and suffering.
Perhaps most importantly, there are no apparent answers to critical questions governing a
number of crucial tasks and procedures in the lethal injection procedure such as:
(a) the minimum qualifications and expertise required for the different personnel performing the tasks involved in the lethal injection procedure after the catheter is inserted;
(b) the manner in which the IV tubing, three-way valve, saline solution and other apparatus shall be modified or fixed in the event it is malfunctioning during the execution process, the minimum qualifications and expertise required ofthe person who shall have the discretion to decide to attempt such action, and the criteria that shall be used in exercising this discretion;
(c) the manner in which the IV catheters shall be inserted into the condemned prisoner, the professional training of the individual(s) who is given the responsibility and discretion to decide when efforts at inserting the IV catheters should be abandoned and the cut down procedure begun, and the criteria that shall be used in exercising this discretion; 11
11 See Denno, Lethal Injection, at 106, n. 303 (citing Thomas O. Finks, Lethal Injection: An Uneasy Alliance of Law and Medicine, 4 1. Legal Med. 383, 397 (1983) (explaining that "[l]ethal injections may not work effectively on diabetics, drug users, and people with heavily pigmented skins"); Harold L. Hirsh, Physicians as Executioners, Legal Aspects ofMed. Prac., Mar. 1984, at 1 (noting that "if a person is nervous or fearful, his veins become constricted"); On Lethal Injections and the Death Penally, 12 Hastings Center Rep. 2, 2 (Oct. 1982) (explaining that lethal injections are particularly difficult to administer "to people with heavily pigmented skins ... and to diabetics and drug users"); Jacob Weisberg, This is Your Death: Capital Punishment: What Really Happens, New Republic, July 1, 1991, at 23 (describing the 45 minutes required for technicians to find a serviceable vein in a former heroin addict); Another U.S. Execution Amid Criticism Abroad, N.Y. Times Apr. 24, 1992, at B7 (reporting that the difficulty in executing Billy Wayne White was due to his history as a heroin user).
25

(d) the manner in which the condition of the condemned prisoner will be monitored to confirm that proceeding to the next procedure would not inflict severe and unnecessary pain and suffering on the condemned prisoner;
(e) the minimum qualifications and expertise required of the person who is given the responsibility and discretion to order the staffto divert from the established protocols if necessary to avoid inflicting severe and unnecessary pain and suffering on the condemned prisoner, and the criteria that shall be used in exercising this discretion; and,
(f) the minimum qualifications and expertise required of the person who is given the responsibility and discretion to insure that appropriate procedures are followed in response to unanticipated problems 0 r events arising during the 1ethal injection procedure, and the criteria that shall be used in exercising this discretion.
Maryland, unfortunately, has not been immune to these types of botched lethal inj ections. As the affidavit of Jerome H. Nickerson, Esq., notes, Defendants botched the last lethal injection they conducted. During the execution ofTyrone X. Gilliam, fluid continuously dripped from the IV causing puddles of fluid. Affidavit of Jerome H. Nickerson Jr. Esq. Exhibit 9 (Vol. I), Appendix J. As Dr. Heath's affidavit notes, there can be little question that either the Defendants are incompetent to conduct lethal injections or simply do not care whether the drugs specified by the legislature ever reach the condemned inmates. As Dr. Heath notes, it is essential that all ofthe two grams of thiopental actually be delivered to the condemned inmate's blood stream.
There can be no question that when IV fluid is dripping on the floor of the death chamber, it is not reaching the inmate's blood stream and there is nothing to suggest that Defendants will not likewise botch the execution of Mr. Oken in a similar fashion. They have no protocol in place to prevent this from happening again and no procedures in place for what to do when Mr. Oken's primary IV line begins leaking.
26

3. Euthanasia practices that include the use of a sedative in conjunction with a neuromuscular blocking agent violate evolving standards of decency
The manner of execution employed by the State of Maryland is, of course, subject to the evolving standards of decency that mark the progress of a maturing society. See Trop v. Dulles, 356
u.s. 86 (1958); Stanford v. Kentucky, 492 U.S. 361 (1989). The lethal injection procedure must
conform to the contemporary norms and standards ofAmerican society. See Weems v. United States, 217 U.S. 349 (1910). Science has moved on since the late 1970s, and a greater knowledge is available of the drugs involved in lethal injection.
Recent research in, and subsequent legal changes regarding, pet euthanasia casts serious doubt as to whether the Maryland execution protocol passes constitutional muster. Specifically, the state intends to use paralyzing agents whose use on animals would violate veterinarians' ethical standards and Maryland law.
Since 1981, at least nineteen states, including Maryland, have passed laws that preclude the use of a sedative in conjunction with a neuromuscular blocking agent. Moreover, the leading professional association ofveterinarians has promulgated guidelines for euthanasia that preclude the practice. See Exhibit 9 (Vol. I), Appendix K (2000 Report of the American Veterinary Medical Association Panel on Euthanasia, 218 Journal ofthe American Veterinary Medical Association, 669, 681 (2001)). A euthanasia practice widely considered unfit for a dog is certainly unfit for humans as well, especially in light of the fact that the State may easily accomplish the same result with a more humane combination of chemicals. Given the consistency in the statutory regulations of euthanasia, the method currently practiced by the State ofMaryland is outside the bounds ofevolving standards of decency. Atkins v. Virginia, 536 U.S. 304, 315 (2002) ("It is not so much the number of these States that is significant, but the consistency of the direction of change.").
27

Many states, including Maryland in 2002, have passed legislation prohibiting inhumane methods of euthanizing animals, including the use of neuromuscular blocking agents such as pancurium bromide. See Florida, Fla. Stat. §§ 828.058 and 828.065 (enacted in 1984); Georgia, Ga. Code Ann. § 4-11-5.1 (enacted in 1990); Maine, Me.Rev.Stat. Ann. tit. 17, § 1044 (enacted in 1987); Maryland, Md.Code Ann., Criminal Law, § 10-611 (enacted in 2002); Massachusetts, Mass.Gen.Laws § 140:151A (enacted in 1985); New Jersey, N.J.S.A. 4:22-19.3 (enacted in 1987); New York, N.Y.Agric. & Mkts § 374 (enacted in 1987); Oklahoma, Okla. Stat., Tit. 4, § 501 (enacted in 1981); Tennessee, Tenn.Code Ann. § 44-17-303 (enacted in 2001); Texas, Tex. Health & Safety Code, § 821.052(a).
The American Veterinary Medical Association has now explicitly forbidden the combinatory use of a sedative with a neuromuscular blocking agent during euthanasia as well as stressed that
[i]t is ofutmost importance that personnel performing this technique are trained and knowledgeable in anesthetic techniques, and are competent in assessing anesthetic depth appropriate for administration of potassium chloride intravenously. Administration of potassium chloride intravenously requires animals to be in a surgical plane of anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of response to noxious stimuli. Exhibit 9 (Vol. I), Appendix K (2000 Report ofthe American Veterinary Medical Association Panel on Euthanasia, 218 Journal of the American Veterinary Medical Association, 669, 681 (2001)). These recent alterations of euthanasia protocol for pets underscore the inhumanity of the execution practice in Maryland. It can hardly be disputed that if certain euthanasia techniques are banned as overly cruel to animals, those same practices must violate our current standards ofdecency regarding the execution of humans.
28

D. Plaintiff is Entitled to Injunctive Relief Barring Defendants from carrying out his execution by utilizing a tri-chemical cocktail and deficient "Execution Procedures." As previously discussed, the following four factors are determinative as to whether to grant
an injunction: 1) the likelihood of irreparable harm to the Plaintiff if the preliminary injunction is denied; 2) the likelihood of harm to the Defendant ifthe injunction is granted; 3) the likelihood that the Plaintiff will succeed on the merits; and, 4) the public interest. Blackwelder Furniture Co. v. Seilig Manufacturing Co., Inc., 550 F.2d 189, 194-96 (4th Cir. 1977)
Each ofthese four conditions manifestly favors Plaintiff. First, as demonstrated earlier, the Plaintiff s constitutional claim is weighty, and therefore, there is a substantial likelihood that he will prevail on the merits. Thus, it "would be odd to deny a temporary injunction to an inmate who will suffer loss oflife under possibly cruel and unusual circumstances." Hill v. Ozmint, et al., NO. 2:040489-18AJ (D. S.C. March 4,2004) (Exhibit 9 (Vol. I), Appendix L). Second, the injunction will do no harm to the defendants because "there is no fear here of the state's judgment being avoided or denied; in fact, plaintiff does not seek such relief. All he seeks is a death in "accord with the dignity ofman, which is the basic concept underlying the Eighth Amendment.'" Id. (quoting, Gregg v. Georgia, 428 U.S. 153, 173 (1976). Third, ifthe injunction is not granted, the Plaintiffwill suffer irreparable injury, because he will be executed before the merits of his cogent claim is addressed. See Wainwright v. Booker, 473 U.S. 935 n. 1 (1985) (Powell, J., concurring) (recognizing that there is little doubt that a prisoner facing execution will suffer irreparable injury ifthe stay is not granted). Fourth, the public interest will be served, rather than disserved, by providing "reasonable assurance that [Plaintiffs execution] will be carried out humanely." Hill v. Ozmint, et al., NO. 2:04-048918AJ (D. S.c. March 4,2004) (Exhibit 9 (Vol. I), Appendix L).
29

E. Mr. Oken's suit challenging the particular means that Defendants intend to employ in effectuating his execution by lethal injection is cognizable under 42 U.S.c. section 1983. Mr. Oken's ability to maintain a section 1983 suit turns upon whether his claims "necessarily
imply the invalidity of [his] conviction[s] or sentence[s]" Heck v. Humphrey, 512 U.S. 475, 487 (1994). The "requirement to resort to state litigation and federal habeas before section 1983 is not, however, implicated by a prisoner's challenge that threatens no consequence for his conviction or the duration ofhis sentence." Muhammad v. Close, 124 S.Ct. 1303 (Feb. 25, 2004). In Muhammad, a prisoner filed a section 1983 suit against a prison official alleging that he head been charged with an institutional infraction which subjected him to mandatory pre-hearing lockup. Id. The Court held that "these administrative determinations do not as such raise any implication about the validity of the underlying conviction, and although they may affect the duration ofthe time to be served that is not necessarily so." Id. Accordingly, the Court held that the suit was properly filed under section 1983.
Like Muhammad, Mr. Oken's section 1983 suit cannot be "construed as seeking judgment at odds with his conviction [or sentence]." 123 S.Ct. at 1305. Mr. Oken does not challenge his death sentence or even the constitutionality oflethal inj ection per se. His complaint, memorandum oflaw, and motion for a temporary injunction are clear on this. He only seeks a temporary restraining order and a preliminary injunction barring Defendants from executing him in the manner they currently intend (the usage of chemicals that violate the Eighth Amendment Cruel and Unusual Punishment Clause, and procedures that increase the likelihood that Mr. Oken will suffer an excruciatingly painful death). Accordingly, under Muhammad, Mr. Oken's suit must be allowed to proceed under section 1983. See Nelson v. Campbell, 2004 WL 1144374 (US. May 24,2004).
30

Any potential doubt about the meaning ofMuhammad and its implications for Mr. Oken were clarified less than three weeks ago in Nelson v. Campbell, 2004 WL 1144374 (May 24, 2004), where the Court cited Muhammad for the proposition that its holding is "consistent with [its] approach to civil rights damages actions." Id. In Nelson, the Court addressed the issue of"whether section 1983 is an appropriate vehicle for petitioner's Eighth Amendment claim seeking a temporary stay and permanent injunctive relief' on the grounds that the particular means for effectuating petitioner's death sentence by lethal injection violated the Eighth Amendment Cruel and Unusual Punishment Clause. !d.
In addressing this Issue, the Court noted that "a constitutional challenge seeking to permanently enjoin the use oflethal injection may amount to a challenge to the fact of the sentence itself." Id. On the other hand, the Court held that "[a] suit seeking to enjoin a particular means of effectuating a sentence of death does not directly call into question the 'fact' or 'validity' of the sentence itself' because "by altering its method of execution, the State can go forward with the sentence." Id. Moreover, "merely labeling something as part of an execution procedure is insufficient to insulate it from a section 1983 attack." !d. In applying these principles to Nelson's challenge to a particular aspect of the lethal injection procedure, the Court held that his claim was properly filed under section 1983 because the allegation "that venous access is a necessary prerequisite does not imply that a particular means ofgaining such access is likewise necessary." Id.
Nelson, is not limited to "just a cut down." This contention is unmasked by reference to the questions present by Nelson. The first question asked:
31

Whether an action brought by a death-sentenced prisoner pursuant to 42 U.S.c. §1983, which does not attack a conviction or sentence, issimply because the person is under a sentence of death - to be treated as a habeas corpus case subject to the restriction on successive petition which categorically precludes review of any constitutional violation not related to innocence (as the Fourth, Fifth and Eleventh Circuits hold), or can be maintained as §1983 action (as the Sixth, Eighth and Ninth Circuits and several lower courts hold)?
The second question asked:
Whether a cut-down procedure which involves pain and mutilation, conducted prior to an execution by lethal injection, violates the Eighth Amendment to the United States Constitution?
See Nelson v. Campbell, Motion for Leave to File Brief and Brief of Amici Curiae in Support of
Petitioner, 2003 WL 22720983, at *3 (U.S. Nov. 10, 2003) (listing two questions presented in
Nelson's certiorari petition. Although the United States Supreme Court granted certiorari, the Court
expressly limited the issue for consideration to the first question presented. Nelson v. Campbell 124
S.Ct. 835 (2003). Therefore, any suggestion that Nelson is limited to a "cut-down" procedure is
inaccurate. Clearly, Nelson's reach is not circumscribed to merely a cut down procedure. Ifit was,
then the Court would have granted review on the second question and would thereby have prevented
any inmate, other then those exposed to lethal injection with poor venous access from bringing an
allegation of violation of the Eighth Amendment after completing one round of federal habeas
reVIew.
Nelson does not speak merely to a cut down rather, it establishes a federal district court
retains subject matter jurisdiction to hear § 1983 claims filed by a prisoner under a state sentence
provided that the claim does not imperil execution of the sentence, Nelson, 2004 WL 1144374, at
*5, and provided such a claim asserts that cruel and unusual punishment will be inflicted as a result
of a state actors "deliberate indifference" to conditions of which the state actors are aware. Id. at *
32

3 (citing Nelson's complaint), id. (citing Dr. Heath's affidavit in Nelson that given the execution procedures which were disclosed to Nelson there "is no comprehensible reason [to use those procedures] unless there exists and intent to render the procedure more painful and risky then it otherwise needs to be."), id. at *5 ("'We therefore conclude that deliberate indifference to serious medical needs ofprisoners constitutes the 'unnecessary and wanton infliction ofpain' proscribed by the Eighth Amendment."') (quoting Estelle v. Gamble, 429 U.S. 97,104 (1976))Y
Clearly, by recognizing §1983 as a proper vehicle to bring such claims, the Court could not have believed that only cut down cases are cognizable by § 1983. Rather, Justice O'Connor's opinion contemplates that other "method-of-execution claims" will be brought but that "it need not reach the difficult question of how to categorize method-of-execution claims generally." Nelson, 2004 WL 1144374, at *5. The State of Alabama clearly recognized as much:
Respondents argue that a decision to reverse the judgment of the Eleventh Circuit would open the floodgates to all manner ofmethod-of-execution challenges, as well as last minute stay requests. But, because we do not here resolve the question of how to treat method-of-execution claims generally, or holding is extremely limited. Nelson, supra at *8 These aspects of the Court's opinion do not support the conclusion that the universe ofmethodof-execution claims are limited exclusively to "cut down cases." Rather these aspects of Nelson
12 The Nelson Court's reliance on Gamble, which required deliberate indifference on the part of the Department of Corrections is likewise not circumscribed to the condition ofMr. Nelson's veins. Fifteen years later in Wilson v. Seiter, 501 U.S. 294, 303 (1991), the Court found that deliberate indifference governs both medical needs suits and conditions suits.
33

suggest the Court is well aware that there will be other manner ofmethod-of-executions suits in the
future and will reserve ruling on those cases for another day.13
In short, if Nelson extends only to lethal injection cut down cases the Court certainly would
have closed "the floodgates" by granting certiorari on merely the second question. This it did not
do. Instead it recognized a procedural mechanism § 1983 and a federal district court's subject matter
jurisdiction over those claims when brought by death sentenced prisoners. Such action by an
appellate court clearly "opens" the courthouse door to more then death sentenced inmates with bad
vems.
F. Fundamental notions of fairness and due process along with the Eighth Amendment prohibition of cruel and unusual punishment mandate a temporary stay of execution to allow Mr. Oken to review the Maryland Department of Corrections Executions Procedures, to which, despite diligent efforts to obtain this information, Defendants have repeatedly denied him access.
"Because death is a different kind of punishment from any other which may be imposed in
this country." Gardner v. Florida, 430 U.S. 349, 357 (1977), the Due Process Clause 0 f the
Fourteenth Amendment and the Eighth Amendment Cruel and Unusual Punishment Clause prevent
a defendant from being executed based on secret information (information that he was unaware of
and unable to obtain to no fault of his own), id., or information for which he was not given an
opportunity to rebut. Simmons v. South Carolina, 512 U.S. 154 (1994). Here, to no avail, Mr. Oken
13 Indeed, the Nelson Courts reference to electrocution as a possible future manner-ofdeath challenge which may one day reach that Court is fairly concrete evidence Nelson speaks to more then just "cut down" lethal injection cases. Nelson supra. at *5 ("We have not yet had the occasion to consider whether civil rights suits seeking to enjoin the use of a particular method of execution -e.g., lethal injection or electrocution-fall within the core of federal habeas corpus or, rather, whether they are properly viewed as challenges to the condition of a condemned inmate's death sentence.") Under the State's interpretation of Nelson an inmate could never bring a § 1983 action to enjoin his execution by electrocution. But see Brian v. Moore, 528 U.S. 1133 (2000) (granting certiorari on whether death by electrocution is cruel and unusual punishment).
34

has repeatedly sought copies of the Maryland Department of Corrections' "Execution Procedures" and any other document relevant to execution by lethal injection. Defendants have repeatedly refused to disclose the requested information claiming that it is secret confidential information.
On May 26,2004, less than three weeks before Mr. Oken's scheduled execution, and in the wake of complaints by Mr. Oken that the "Execution Procedures" violate the Eighth Amendment, Defendants claim to have amended the "Execution Procedures." They assert that these "new" procedures w ill be used to execute Mr. Oken, and that these procedures correct any potential problems raised by Mr. Oken. Although Mr. Oken has proven that the one change disclosed by Defendants (thiopental concentration increase) does not alleviate the high risk that he will suffer an excruciatingly painful death by lethal injection, due process mandates that Defendants disclose the new "Execution Procedures in its entirety. Due process and the Eighth Amendment also entitle Mr. Oken to a temporary injunction in order to review the "Execution Procedures" and to give his experts adequate time to review the document and make their findings as to whether any new protocols violate the Eighth Amendment.
In changing the "Execution Procedures" less than three weeks before Mr. Oken's scheduled execution and in the wake of allegations that the procedures would cause a lingering death, Defendants appear to have lost site ofthe fundamental principle retained by all Americans; the right to a death with the "dignity of man." That is all Mr. Oken asks for. At the least, he is entitled to adequate time to review the new procedures that Defendants adopted at the last minute in an attempt to manipUlate the system so that he can be guaranteed the dignified death that all people deserve.
35

G. Principles of Res Judicata Do Not Prevent This Court from Exercising Jurisdiction There is no estoppel where the losing party in the first decision did not have a full and fair
opportunity to litigate the claim or issue. Allen v. McCurry, 449 U.S. 90 (1980). In the instant case, the Maryland Court of Appeals ruled on the merits of the Eighth Amendment claim despite a lack of any discovery or no evidentiary resolution. Exhibit 9 (Vol. II). The lack of a full and fair proceeding is no only demonstrated by the summary nature of those proceedings, but by the last minute disclosure of the lethal injection protocols. Exhibit xx. The protocols were first requested under the Maryland Public Information Act in the first week of May and were not received until the afternoon of June 10, 2004 - just hours before the filing of this pleading and just three days before the start of the execution window. The documents which were disclosed tonight demonstrate the defendants have known all along they botched the execution of Tyron X. Gilliam and have done nothing in the six years since to address the substantial risk created by Defendants Unknown Executioners. Plaintiff was denied the ability to discover information from defendant, thus burdening plaintiffs ability to prepare his case. See, Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984). The inability to properly prepare for the state court case necessarily means that plaintiff could not have had a full and fair chance to litigate his case.
Here, "there is reason to doubt the quality, extensiveness, or fairness ofprocedures following in prior litigation". Montana v. United States, 440 U.S. 147, 164 n.11 (1979), accord, Townsend v. Sain, 372 U.S. 293, 316 (1963) (holding that where a hearing is "seriously inadequate for the ascertainment of the truth, it is the federal judge's duty to disregard the state findings and take evidence anew), Weidner v. Thieret, 932 F.2d 626,633 (7th Cir. 1991) (dicta) (A de novo habeas corpus hearing would be necessary "Where state trial judges fail to adequately develop the relevant
36

facts so that not even implicit findings can be gleaned from the record"), 0 'Neal v. Smith, 413 F.2d 269,270 (5th Cir. 1969) (holding that where the judge used "assumed" facts in a brief hearing instead of hearing evidence petitioner was due a habeas corpus hearing).
Accordingly, this Court should reject any assertion ofres judicata by the Defendants. IV. CONCLUSION.
The enforcement and punishment ofcriminal acts is undisputedly an important and legitimate public concern. These goals, however, must be achieved in a manner consistent with the state statutes, protections and procedures derived from the Constitution. The execution methods employed by the State of Maryland fail to pass constitutional muster. Not only are the "Execution Procedures" in direct violation of the Maryland "Method of Execution" statute, but also far from producing a rapid and sustained loss ofconsciousness and humane death, lethal injection likely will cause Mr. Oken to consciously suffer an excruciatingly painful and protracted death; a risk that is increased and likely to go undetected because of the failure to provide professional medical monitoring ofthe effects ofthe drugs, and the Maryland Department ofCorrections' shocking belief that a leaking IV line is "normal." Because of the constitutionally intolerable risk that Mr. Oken's execution will result in needless suffering and pain, Mr. Oken is entitled to a temporary restraining order and a preliminary injunction barring Defendants from utilizing the tri-chemical cocktail and deficient "Execution Procedures" that they plan to use in effectuating Mr. Oken's death. This relief and only this relief is necessary to ensure that what seems lost in the criminal justice system today is fulfilled; the notion of integrity and fairness that would allow Mr. Oken to maintain his fundamental right to a death with the "dignity of man."
37

Respectfully submitted,
gv-(' d Llarref::> wM1/ 1f'VL RED WARREN BENNETT I MICHAEL E. LAWLOR
William Street Bait more, Maryland 245 0 (410) 539-4729
[4.1 /~~~?
~~~~~
DA ID M. BARRON14 1502 Main St. #209 Columbia, South Carolina 29201 (646) 279-6902
14 Admitted in South Carolina.
38

CERTIFICATE OF SERVICE I hereby certify that on this 11 th day of June, 2004, the foregoing Memorandum of Law (without the attached exhibits) was emailed, faxed, delivered by hand, and/or mailed to Scott S. Oakley, Esquire, Assistant Attorney General, Office ofthe Attorney General; Department ofPublic Safety and Correctional Services, 6776 Reiserstown Road, Baltimore, Maryland 21215, S. Ann Brobst, Esquire, Assistant State's Attorney for Baltimore County, 401 Bosley Avenue, County Courts Building, 5th Floor, Towson, Maryland 21204, and to Ann N. Bosse, Esquire, Office of the Attorney General, Criminal Appeals Division, 200 Saint Paul Place, Baltimore, Maryland 21202.
39

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STEVEN H. OKEN, # 212-612

*

Plaintiff,

*

v.

* Civil Action No.: PJM-04-

FRANK C. SIZER, JR., et al.

*

Defendants.

*

* * * * * * * * * * * * *

DEFENDANTS' MEMORANDUM IN SUPPORT OF OPPOSITION TO REQUEST FOR STAY OF EXECUTION AND MOTION TO DISMISS OR,
IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

Defendants, Frank Sizer, Jr., Commissioner of the Maryland Division of Correction

(DOC), William Williams, Warden of the Maryland Correctional Adjustment Center

(MCAC), Gary Hornbaker, Warden ofthe Metropolitan Transition Center (MTC), by their

attorneys, J. Joseph Curran, Jr., Attorney General of Maryland, and David P. Kennedy, Ann

N. Bosse, and Scott S. Oakley, Assistant Attorneys General, in support of their Opposition

to Request for Stay of Execution and Motion to Dismiss or, in the Alternative, Motion for

Summary Judgment, file this Memorandum of Law and state as follows:

I. Introduction.

Plaintiff, Steven Oken, is an inmate currently in the custody ofthe Maryland Division

of Correction and incarcerated in Baltimore, Maryland. Oken is under a sentence of death

imposed in 1991 following his capital murder conviction in the Circuit Court for Baltimore

County. Oken is due to be executed by lethal injection during the week beginning June 14,

2004. On June 11, 2004, Oken filed this action under 42 U.S.C. §1983 alleging that his
execution by lethal injection would violate his 8th Amendment right to be free from cruel and unusual punishment. He seeks a temporary restraining order and preliminary injunction preventing his upcoming execution, and attorney's fees and costs.
Oken's last-minute legal pleas must be rejected, for many reasons. First and foremost, the present complaint, though styled a civil rights action under 42 U.S.C. § 1983, challenges the legality of Oken's impending execution. Under the Supreme Court's recent decision in Nelson v. Campbell, 541 U.S. _ , 2004 WL 1144374 (May 24, 2004)(No. 03-6821), this claim is in fact a claim for habeas corpus relief. Because Oken has previously petitioned for habeas corpus, this is a successive petition, over which this Court lacks jurisdiction. Second, even if this Court had jurisdiction over this claim as a § 1983 claim, Oken would not be entitled to a stay of execution to have the claim heard because he has purposely waited until the last minute to raise it. Third, the present claims are resjudicata, having been adjudicated against Oken in a parallel action he filed in state court. Finally, the defendants are entitled to summary judgment on the merits: Oken's execution by lethal injection will not constitute cruel and unusual punishment. II. Factual and Procedural Back2round.
Oken's case is well-documented. The facts of Oken's heinous crimes are concisely stated in the decision of the Maryland Court of Appeals affirming his convictions and
2

sentence. Oken v. State, 327 Md. 628, 635-36, 679, 612 A.2d258 (1992). The lengthy history
of Oken's relentless but unsuccessful attempts to overturn his conviction and sentence, on
both direct and collateral review, on every conceivable ground other than innocence, is
summarized in the most recent opinion of the Court of Appeals relating to Oken. Oken v.
State, 378 Md. 179, 183-84, 835 A.2d 1105 (2003), cert. denied, 124 S. Ct. 2084 (2004).
This Court's denial of Oken's petition for federal habeas corpus relief, Oken v. Nuth, 64 F.
Supp. 2d 488 (D. Md. 1999), was affirmed by the Fourth Circuit in Oken v. Corcoran, 220
F.3d 759 (4th Cir. 2000), cert. denied, 531 U.S. 1165 (2001). In addition to the above sources
of background on Oken's case, the history of Oken's case is summarized in Exhibit A.
Before filing this action, Oken filed a complaint in state court raising the same claims
and seeking the same relief sought here: Oken v. Sizer, No. 24-C-004242 (Cir. Ct. for
Baltimore City)(filed May 16,2004; transferred to Cir. Ct. for Baltimore County, May 25,
2004). All claims for relief in that case were denied by Judge John Grayson Turnbull on June
2,2004.1 On appeal from the decision ofthe Circuit Court for Baltimore City transferring the
1 Oken had filed a separate motion on May 14, 2004 in his criminal case in Baltimore County, No. 89-CR-3102, seeking relief on the limited grounds that DOC's planned method of execution did not comply with the language of the statute, Md. Corr. Servo Code Ann, § 3-905 (1999), a claim repeated in the action Oken later filed in the City. Judge Turnbull also denied that motion on June 2, 2004. The Court of Appeals also affirmed this ruling in its June 9th decision. See Ex. B. Despite the Court of Appeals' ruling, Oken continues to assert that the intended procedure violates the Maryland statute, though he disclaims any intention of relying on that as a substantive basis for relief. See Plaintiff s Memorandum, at 5 n.l. The Maryland Court of Appeals has ruled as a matter of state law that the intended procedure is not in violation of the statute. In any event, this Court lacks jurisdiction to review such a purely state-law question.
3

case to Baltimore County and Judge Turnbull's decision ofJune 2, 2004, the Maryland Court of Appeals heard oral argument on June 8,2004. On June 9, 2004, the Court denied Oken's request for a stay and rejected his claims on the merits, including his claim that his execution by lethal injection would constitute cruel or unusual punishment. Oken v. State, Misc. No. 31 and No. 143, September Term 2003 (June 9, 2004)(per curiam). The decision ofthe Court of Appeals is attached as Exhibit B. III. Standards for Injunctive Relief and Summary Judgment
A. Injunctive Relief Oken seeks preliminary injunctive reliefin the form ofa stay ofexecution. To obtain preliminary injunctive reliefunder F.R.Civ.P. 65, a party must demonstrate: 1) the likelihood he will be irreparably harmed if the preliminary injunction is denied; 2) the likelihood that the opposing party will not be harmed if the requested relief is granted; 3) the likelihood the moving party will succeed on the merits; and 4) that the public interest will be served if the injunction is granted. Blackwelder Furniture Co. v. Selig Manufacturing Co., 550 F.2d 189, 195-96 (4th Cir. 1977). Accord Ciena Corp. v. Jarrard, 203 F.3d 312,322-23 (4th Cir. 2000). The less the balance ofhardships favors the plaintiff, the greater must be the showing oflikelihood ofsuccess on the merits. Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 813 (4th Cir. 1991). To be irreparable, the harm must be "neither remote nor speculative, but actual and imminent." Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969,975 (2d Cir. 1989)(citation omitted). While the irreparable nature of the harm to one
4

seeking a stay of execution would ordinarily be obvious, Oken does not here claim to be contesting the right of the state eventually to execute him. He purports merely to challenge the presently planned manner of execution. Therefore, the true measure ofthe likelihood of irreparable harm to Oken is the chance that his execution by lethal injection as now planned will be unconstitutionally painful. As is shown in Argument E below, that chance is minimal.
On the other hand, the likelihood of harm to the defendants is substantial. The state has a significant interest in enforcing its criminal judgments. Nelson, 541 U.S. _ , 2004 WL 1144374 at *8. The public also has an interest in state criminal sanctions being administered by the persons authorized to do so because oftheir training and experience, not by the federal courts. See Taylor v. Freeman, 34 F.3d 266,268 (4th Cir. 1994)("It is well established that absent the most extraordinary circumstances, federal courts are not to immerse themselves in the management of state prisons or substitute their judgment for that of the trained penological authorities charged with the administration of such facilities.")
Since the enactment of the Prisoner Litigation Reform Act in 1995 (ifnot before, see Lewis v. Casey, 518 U.S. 343, 354 (1996)(vacating system-wide injunction relating to provision of legal materials and services in absence of actual deprivation of access except in isolated cases); Taylor v. Freeman, 34 F.3d at 269 (decrying breadth and detail of injunctive relief based on insufficient preliminary findings of violations and without giving prison officials first opportunity to craft remedy)), federal courts issuing injunctive relief in prisoner cases have been under the additional requirement that they "shall not grant or
5

approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of a Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.c. § 3626(a)(l) & (2). Under the PLRA, federal courts are prohibited from becoming involved in the actions of the state's correctional system absent compelling reasons. A court considering whether to grant injunctive reliefin a prisoner case must give substantial weight to any adverse impact on public safety or the operation of the criminal justice system. Id. at § 3626(a)(I) & (2).
Finally, the Supreme Court recently reiterated that the last-minute nature ofa request for a stay of execution is a factor to be considered in determining whether to grant that particular form of equitable relief. Because ofthe state's interest in carrying out its criminal judgments, there is a "strong equitable presumption against the grant ofa stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." Nelson, 541 U.S. _ , 2004 WL 1144374 at *8.
B. Summary Judgment Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter oflaw." See Fed. R. Civ. P. 56. "A defendant moving for summary judgment has the burden of showing the absence of any material fact and that he is entitled to judgment as a
6

matter oflaw.... Once a defendant makes a necessary showing, the plaintiffmust go forward and produce evidentiary facts to support his contention." Barwick v. Celotex Corp., 736 F.2d 946,958 (4th Cir. 1984). See also Rule 56(e). The standard under Rule 56(c) mirrors that for judgment as a matter oflaw under Fed. R. Civ. P. 50(a). "[T]here is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Although the non-movant is entitled to have all reasonable inferences drawn in his favor, Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970), Ross v. Communications Satellite Corp., 759 F.2d 355,364 (4th Cir. 1985), unverified allegations are insufficient to create a genuine dispute of material fact, Rivanna Trawlers, Unl'td v. Thomson Trawlers, Inc., 840 F.2d 236,240 (4th Cir. 1988), and "[a] mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely." Barwick, 736 F. 2d at 958-59, quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 640 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968). Speculative allegations are insufficient to challenge a summary judgment motion, because they are not based on personal knowledge. See Cooke v. Manufactured Homes, Inc., 998 F.2d 1256, 1260 (4th Cir. 1993). The non-moving party cannot create a genuine dispute of material fact "through mere speculation or the building ofone inference upon another." Id.; PPMAm., Inc. v. Marriott Corp., 875 F. Supp. 289,296 (D. Md. 1995)("A party cannot create an issue of fact for trial by the building of one inference upon another.")
7

"When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Only disputed issues of material fact will preclude the entry of summary judgment. "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The function of a motion for summary judgment is to avoid a useless trial in cases where it is unnecessary and would only cause delay and expense. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977). Summary judgment should be granted if it appears from an application of substantive law to the uncontroverted facts that the movant is entitled to judgment as a matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The court has an obligation to ensure that factually unsupported claims do not go to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987), citing Celotex Corp. v. Catrett, 477 U.S. at 323-24. Summary judgment is required by Rule 56 where a party cannot establish an evidentiary basis for an essential element of his claim, an element on which he will bear the burden of proof at trial. Drewitt v. Pratt, 999 F.2d 774,778 (4th Cir. 1993). Self-serving affidavits with no basis of fact in the record are insufficient to avoid summary judgment. Palmer v. Marion County, 327 F.3d 588 (1oth Cir. 2003). "[AJ defendant ... should not be required to undergo the considerable expense of preparing for and participating in a trial" unless the plaintiff has produced
8

"'evidence on which a jury might rely'" in support of the claims alleged. E.F. Hutton Corp. v. Equitable Bank, N.A., 678 F. Supp. 567, 573 (D. Md. 1988)(citations omitted). IV. Argument.
A. Oken's Complaint Fails to State a Claim for Relief Under 42 U.S.C. § 1983.
Oken's claim is a thinly veiled attempt to stop his execution, thereby preventing the state from carrying out its criminal judgment, not a challenge to any conditions of his confinement or other purported civil rights violations. Where an inmate seeks injunctive relief in federal court, challenging the fact ofhis conviction, the duration of his sentence, or the manner of execution, the claim falls within the core of habeas corpus and is not cognizable when brought pursuant to 42 U.S.c. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 479 (1973); In re Sapp, 118 F.3d 460, 462 (6th Cir.), cert. denied, 521 U.S. 1130 (1997). By contrast, claims in federal court that merely challenge conditions ofconfinement may be brought pursuant to § 1983. The Supreme Court made clear just last month in Nelson v. Campbell, that suits such as Oken's are the former, not the latter, because granting the relief Oken seeks would necessarily prevent his execution. Oken has argued that the Nelson decision somehow supports his claim. A review of the case shows that it does not.
Nelson was an Alabama death-row inmate. Three days before his scheduled execution by lethal injection, Nelson filed a civil rights action in federal district court against Alabama Department of Corrections personnel pursuant to § 1983, alleging that use of a cut-down
9

procedure2 to access his veins constituted cruel and unusual punishment and deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Nelson sought a permanent injunction against use of the cut-down procedure; a temporary stay of execution to allow the federal district court to consider the merits of his claim; an order requiring respondents to furnish a copy of the protocol setting forth the medical procedures to be used to gain venous access; and an order directing respondents to promulgate a venous access protocol that comported with contemporary standards of medical care. According to an affidavit from Dr. Mark Heath3 that accompanied Nelson's complaint, safer and lessinvasive contemporary means of venous access existed.
The federal district court dismissed Nelson's suit for lack ofjurisdiction, finding that Nelson's § 1983 claim and request for a stay were the functional equivalent of a second or successive petition for federal habeas corpus relief. Before filing a second or successive federal habeas petition in district court, Nelson, among other things, would have to obtain authorization from the United States Court ofAppeals for the Eleventh Circuit. The standard for obtaining such authorization is an onerous one. See 28 U.S.c. § 2244(b).
In a decision issued May 24,2004, which it characterized as "extremely limited," the Supreme Court simply held that Nelson had stated a cognizable claim under 42 U.S.C. §
2 As will be discussed below, Oken's case does not involve the need for a cutdown, or any other unusual medical procedure in preparation for his execution. Oken does not allege that his case will involve a cut-down.
3 Oken also uses Dr. Heath to support his claims in this court on different aspects of the lethal injection process.
10

1983. Nelson, 541 U.S. _,2004 WL 1144374, at *2,8. This holding, given the unique and different facts of Nelson, is of no benefit to Oken. Moreover, as argued below, the Court's opinion strongly condemns eleventh hour attempts by death-row inmates to manipulate the criminal justice system to delay execution.
The Court's limited holding that Nelson had stated a cognizable claim under 42 U.S.C. § 1983 by alleging that an unnecessary and painful cut-down procedure would be used to prepare him for execution is, of course ofno help to Oken, because his case does not involve a cut-down. Moreover, the Nelson holding cannot be divorced from the particular circumstances of the case, which make the decision even less helpful to Oken. At oral argument in Nelson, respondents conceded that § 1983 would be an appropriate vehicle for an inmate, who was not facing execution, to bring a "deliberate indifference" challenge to the constitutionality of a cut-down procedure ifused to gain venous access for purposes of providing medical treatment. The Supreme Court saw no reason on the face of Nelson's complaint to treat Nelson's Eighth Amendment claim differently solely because he was condemned to die. Furthermore, no Alabama statute or regulation required use of the cutdown procedure in connection with a lethal injection execution; Nelson had alleged alternatives to the cut-down procedure that would have allowed Alabama to proceed with Nelson's execution as scheduled; and, Alabama had maintained from the outset oflitigation that it would attempt other methods of venous access prior to engaging in the cut~down procedure. Thus, the Court was faced only with a challenge to the use of a painful and
11

unnecessary medical procedure, that just happened to be a precursor to a planned execution. Leaving aside the issue of the stay, which had been rendered moot by the expiration
of the warrant, the Supreme Court viewed Nelson's complaint as asking only to enjoin Alabama's allegedly unnecessary use of the painful cut-down procedure, not his execution by lethal injectionper se. A finding that the cut-down procedure was unconstitutional would not require changing Alabama's death penalty statute. By altering the method of execution in a way suggested by Nelson, which Alabama did not oppose, Alabama could go forward with its sentence. Given the nature of Nelson's claim, then, the Court was not faced with a situation, such as the present one, where success on the merits of the claim coupled with injunctive reliefwould call into question the present ability ofthe state to carry out the death sentence itself.
Because the execution warrant in Nelson's case had expired by the time of the Supreme Court's decision, there was nothing before the Court requiring different treatment ofNelson's otherwise cognizable § 1983 claim just because it was a death penalty case. For the benefit ofthe lower court, which might have to address the question on remand, the Court did spell out the standard for determining when a complaint in these unusual circumstances sounds in habeas, not § 1983. Analogizing to the favorable termination rule developed in civil rights cases that "fall at the margins of habeas," such as Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Basi/ok, 520 U.S. 641 (1997), the Court said the key question is whether a successful challenge to the execution procedure in question would necessarily
12

prevent the state from carrying out its sentence. Nelson, 541 U.S. _ , 2004 WL 1144374, at *7.
Oken's case is therefore not helped by the decision in Nelson. On the contrary, Nelson compels the conclusion that Oken's complaint is in fact a request for habeas corpus relief. Oken's execution by lethal injection will not involve a cut-down procedure, or any other allegedly painful and unnecessary preliminaryprocedure. His complaint does not seek merely to avoid some collateral aspect ofthe execution process. Oken seeks to stop his execution by lethal injection altogether. Granting relief on Oken's present complaint would necessarily stop his execution. Therefore, the complaint is in fact one that seeks habeas relief, not one that can be brought under § 1983.
B. Oken's Complaint Must Be Dismissed As A Successive Habeas Petition Treated as a federal habeas petition, Oken' s present complaint is a successive petition under 28 U.S.c. § 2244(b) that this Court lacks authority to consider. This Court's jurisdiction over Oken's successive habeas petition is governed by the terms of the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter the AEDPA), which applies to cases filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Mueller v. Angelone, 181 F.3d 557,565-73 (4th Cir.), cert. denied, 527 U.S. 1065 (1999). A second or successive federal habeas petition may not be filed in the district court unless the petitioner moves in the appropriate circuit court for an order authorizing the district court to consider the petition, and a three-judge panel of the circuit court approves
13

the filing of such a petition. 28 U.S.c. § 2244(b)(3); see Felker v. Turpin, 83 F.3d 1303, 1305-07 (lith Cir.), cert. dismissed, 518 U.S. 651, 654-65 (1996); In re Williams, 330 F.3d 277,278-84 (4th Cir. 2003); In reFowlkes, 326 F.3d 542,543-47 (4th Cir. 2003); Buchanan v. Gilmore, 139 F.3d 982,983-84 (4th Cir. 1998) (per curiam); Rule 22(d) ofthe Local Rules of the United States Court of Appeals for the Fourth Circuit (specifying procedure for seeking authorization to file a second or successive petition).4

4 Local Rule 22(d) provides:

Any individual seeking to file in the district court a second or

successive application for relief pursuant to 28 U.S.C. § 2254 or § 2255

shall first file a motion with the Court of Appeals for authorization as

required by 28 U.S.c. § 2244, on the form provided by the clerk for such

motions. The motion shall be entitled "In re

, Movant." The

motion must be accompanied by copies of the § 2254 or § 2255 application

which movant seeks authorization to file in the district court, as well as all

prior § 2254 or § 2255 applications challenging the same conviction and

sentence, all court opinions and orders disposing of those applications, and

all magistrate judge's reports and recommendations issued on those

applications. The movant shall serve a copy of the motion with attachments

on the respondent named in the proposed application and shall file an

original and three copies of the motion with attachments in the Court of

Appeals. Failure to provide the requisite information and attachments may

result in denial of the motion for authorization.

If the Court requires a response to the motion, it will direct that the response be received by the clerk for filing within no more than seven days. The Court will enter an order granting or denying authorization within 30 days of receipt of the motion by the clerk for filing, and the clerk will certify a copy of the order to the district court. If authorization is granted, a copy of the application will be attached to the certified order for filing in the district court. No motion or request for reconsideration, petition for rehearing, or any other paper seeking review of the granting or denial of authorization will be allowed.
14

Oken has previously sought and been denied federal habeas corpus relieffor the state conviction now at issue. See Oken v. Nuth, 64 F. Supp. 2d488 (D. Md. 1999), aff'd sub nom. Oken v. Corcoran, 220 F.3d 759 (4th Cir. 2000), cert. denied, 531 U.S. 1165 (2001). Because Oken has not sought and obtained leave from the United States Court of Appeals for the Fourth Circuit to file a second petition for habeas relief, the present complaint, which seeks such relief, should be dismissed as not allowed by law.
C. Oken Is Not Entitled To Injunctive Relief. Even if Oken's claim were legally cognizable in this Court, injunctive relief should be denied. Through his delay, Oken has squandered any equities that even conceivably might have supported his claim. Oken has demonstrated by his own dilatory conduct that he has no interest in adjudicating the legality ofMaryland's use oflethal injectionper se, his ostensible purpose. Long past the proverbial eleventh-hour, thirteen years after his conviction, after many other legal proceedings raising many other issues, Oken complains for the first time about the details of an execution method he has long known would be his fate. Obviously, this lastminute litigation is for the sole purpose of delaying his execution. The law must not countenance such manipulation. "[N]o matter what the challenge to the method of execution is called, it is an appeal to equity," and a court may consider the last-minute nature ofan application to stay execution in deciding whether to grant equitable relief. In re Sapp, 118 F.3d at 463. This principle was clearly stated by the Supreme Court in Gomez v. United States District Court, 503 U.S. 653,
15

654 (1992)(per curiam), and powerfully reinforced just last month in Nelson. See supra at 5-6, infra at 21-22.
The lower court in Gomez had entered a stay to permit condemned inmate Robert Harris to litigate a claim, framed as a civil rights claim pursuant to § 1983, that execution by lethal gas violated the Eighth Amendment. The Supreme Court vacated the lower court's stay. Recognizing that Harris filed under § 1983 because a habeas petition from him would be dismissed as an abuse of the writ5, the Court stated:
[w]hether his claim is framed as a habeas petition or as a § 1983 action, Harris seeks an equitable remedy. Equity must take into consideration the State's strong interest in proceeding with its judgment and Harris' obvious attempt at manipulation. This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.
Gomez, 503 U.S. at 653-54 (citations omitted). Like Harris, Oken could have brought his action challenging lethal injection at least
a decade ago. Lethal injection has been an authorized method ofexecution in Maryland since March 25, 1994. See 1994 Md. Laws, Ch. 5. Three Maryland inmates have been executed by that method. At the very least, Oken has been aware of Maryland's use of lethal injection since March 30, 1994 when his attorney, Fred Warren Bennett, was advised by letter that, pursuant to 1994 Md. Laws, Ch. 5, any execution of Oken's sentence of death "will be by
5 At the time of the Gomez case, a second or successive federal habeas petition was subject to denial, as an abuse of the writ, pursuant to principles announced in McClesky v. Zant, 499 U.S. 467 (1991).
16

lethal injection unless he elects on or before May 24, 1994 a lethal gas execution.,,6 Oken's many legal challenges to his convictions and sentence have proceeded to
completion through the state and federal post conviction systems. Yet it was not until a matter of weeks before his scheduled execution that Oken took issue with Maryland's use oflethal inj ection in any legal forum. There is no good reason for Oken' s failure to bring his challenge previously, here or in state court. He certainly must have been aware of the possibility of rasing such a claim.
Legal challenges to lethal injection are nothing new; they have been repeatedly raised and rejected for nearly two decades. See Hecklerv. Chaney, 470 U.S. 821, 823 (1985) (claim in civil suit that drugs used for execution by lethal injection not appropriately tested and likely to be administered by untrained personnel); Woolls v. McCotter, 798 F.2d 695,697-98 (5th Cir.) (claim that administration ofsodium thiopental by untrained personnel in improper dosage violates Eighth Amendment), cert. denied, 478 U.S. 1032 (1986); State v. Moen, 309 Or. 45, 98 786 P.2d 111, 143 (1990) (claim that chemicals used by state violate Eighth Amendment); Hill v. Lockhart, 791 F. Supp. 1388, 1394 (E.D. Ark. 1992) (possible difficulty locating a vein suitable for lethal injection claimed to be cruel and unusual punishment); State v. Deputy, 644 A.2d 411, 420 (Del. 1994) (claim that state's procedures for lethal
6 Indeed, by his silence in the wake of this notice, Oken should be deemed to have waived any objection he may have to execution by lethal injection. Orbe v. Johnson,_ S. E. 2d ,2004 WL 743795 (Va. Mar. 30, 2004) (No. 040598), at *2-3 (finding, on appeal from dismissal of action for declaratory judgment and preliminary injunction, that challenge to lethal injection was waived where petitioner allowed statutory default provision to determine the method of execution, i.e., by lethal injection rather than by electrocution). A copy of the March 30, 1994 letter quoted in the text is an exhibit to Exhibit 15 accompanying Oken's Complaint in this Court.
17

injection unconstitutional for failing to provide appropriate selection and training ofpersons administering lethal injection); State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602,610 (1995) (lethal injection allegedly unconstitutional because if carried out incorrectly it could be painful); State v. Webb, 252 Conn. 128, 136-37, 750 A.2d448, 453 (claim lethal injection creates a "high risk" inmate will experience "excruciating pain" because execution protocol does not ensure sufficient amount ofthiopental sodium will be administered to render inmate unconscious), cert. denied, 531 U.S. 835 (2000); Sims v. State, 754 So. 2d 657 (Fla.) (claim that lack of specific guidelines controlling the dosage, sequence, and delivery rates oflethal chemicals violates Eighth Amendment), cert. denied, 528 U.S. 1183 (2000); Cooper v. Rimmer, 358 F.3d 655,656-59 (9th Cir. 2004) (per curiam) (rejecting, among others, claim of alleged deficiencies in California's protocol, challenge to use of pancuronium bromide, contention that personnel not adequately trained).
Despite nearly two decades oflegal challenges to execution by lethal injection across the country, Oken failed to raise any challenge to Maryland's use oflethal injection in either state or federal court until May 14,2004.7 Oken cannot claim he did not know at least the basics of Maryland's lethal injection process. Attached to the pleading Oken filed in his criminal case in Baltimore County on May 14, 2004, was a copy of Maryland's lethal injection protocol in effect for prior executions. Oken does not explain how or when he
7 Oken's first filing on this issue was a "Motion for Appropriate Relief, to Vacate and Set Aside Warrant and for Immediate (Emergency) Hearing," filed in the Circuit Court for Baltimore County May 14,2004. In that motion, Oken complained that the execution protocol established by the Division of Correction violated § 3-905 of the Correctional Services Article of the Maryland Annotated Code. This contention, which Oken says he is not relying on here as a substantive basis for relief, was rejected by the Maryland Court of Appeals on June 9, 2004. See Ex. B.
18

obtained the document, but it seems reasonable to assume that it had been in his possession
for some time as he never claimed to have just learned ofit. Additionally, there is no mystery
as to the basic procedure for execution by lethal injection to be used in Maryland. In a letter
to the General Assembly in 1994 when Maryland's lethal injection statute was enacted, then-
DOC Commissioner Richard Lanham outlined the procedure that would be used to carry out
lethal injection executions under the proposed statute.8 Essentially the same procedure is used
throughout the country. See infra at 27. It has been widely known for years. For instance, on
January 30, 1998, Amnesty International published "Lethal Injection: The Medical
Technology of Execution." (Viewed online at www.amnesty.org/library/Indexi
engACT500011998 on June 2, 2004.) That document discusses the procedure in detai1.9
Moreover, any claimed lack of specific information about the exact details of the
8 Commissioner Lanham's letter is part of the legislative history of the statute. It is contained in the "bill file" for the legislation that became § 3-905, House Bill 498. These files are readily available for review at the Department of Legislative Reference in Annapolis. The letter is an exhibit to Exhibit 3 accompanying Oken's Complaint in this Court.
9 Oken argues that the State has withheld information from him about the lethal injection process, prejudicing his ability to litigate his claims. However, Oken's request under the Maryland Public Information Act (MPIA) was not transmitted to counsel for the Division of Correction until May 11,2004, see Complaint Ex. 1. By letter dated May 12, 2004, counsel for DOC expressed the expectation that Oken would receive a response from the Division "within the reasonable period required by the MPIA," See Oken Complaint, Ex. 6, Vol.lI, Appendix O. Oken also fails to mention that his request for discovery, directed to the Circuit Court for Baltimore City and requesting "leave to conduct the above-requested discovery," ld., Appendix P (copy of Motion for Production of Documents and Things), was not transmitted to counsel for the Division of Correction until May 17, 2004. Oken also refuses to acknowledge that the information provided in the affidavits previously provided to him, see id. Appendix G, Appendix J, and Appendix L, are more than adequate to litigate his complaints about lethal injection.
19

execution procedure is demonstrably not the reason for Oken's delay. Instead, Oken's
attorney all but admitted he was holding this issue in reserve. On December 29, 2003, a
reporter for The Sun wrote the following in an article about challenges to the drugs used in
the lethal injection process in a number of states:
Fred Bennett, the attorney for death row inmate Oken, said he would be interested in pursuing a similar argument if his appeals - he has asked the Maryland Court of Appeals to reverse its earlier decision rejecting Oken's arguments - are not successful.
"Weare looking carefully at the number of federal cases that are percolating dealing with the method and manner of execution and the drugs that are being used," he said. "But we don't have to deal with that yet."
(Emphasis added.) 10
The equities in this matter undeniably favor the defendants. Federal jurisprudence
reflects an "enduring respect for 'the State's interest in the finality of convictions that have
survived direct review within the state court system. '" Calderon v. Thompson, 523 U.S. 538,
555 (1998) (quoting Brecht v. Alabama, 507 U.S. 619, 635 (1993)). In addressing the
compelling state interest in finality, the United States Supreme Court observed:
Only with an assurance of real finality can the State execute its moral judgment in a case. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out. To unsettle these expectations is to inflict a profound injury to the "powerful and legitimate interest in punishing the guilty," Herrera v. Collins, 506 U.S. 390,421, 113 S.
10 Oken's counsel acknowledged at oral argument before the Maryland Court of Appeals on June 8th, in response to questioning from Judge Harrell, that Oken's 8th amendment challenges could have been brought at the time of the issuance of the penultimate warrant in the Spring of 2003 but that at the time he was concentrating his efforts on other legal arguments. A copy of the newspaper article referred to is an exhibit to Exhibit 15 accompanying Oken' s Complaint in this Court.
20

Ct. 853, 122 L. Ed. 2d 203 (O'Connor, 1., concurring), an interest shared by the State and the victims of crime alike.
Calderon, 523 U.S. at 556 (citation omitted). For more than a decade, Oken's rights have been the focus oflitigation in which the
fairness of his trial and validity of his convictions and sentence have been examined and reexamined. Oken's convictions and sentence have repeatedly been upheld in state and federal court. If Oken had genuine concern regarding the legality of his execution by lethal injection, he would have sought relief on this ground in 1994 when he became aware that he was subject to that method. Instead, although well aware ofthe existence ofa possible claim, he deliberately chose to wait until a short time before his execution to raise this claim in the hope of obtaining a last-minute stay of execution.
The impropriety of a stay of execution in a case such as this was recently restated by the Supreme Court in Nelson v. Campbell. As discussed above, the issue first posed in Nelson was whether a complaint brought under 42 U.S.C. § 1983 by a state prisoner seeking to challenge the procedure for carrying out his execution was more properly characterized as a claim for habeas corpus relief. Given the unique facts of the case, the Court found it unnecessary to decide that issue and merely held that Nelson's § 1983 complaint should not have been dismissed out of hand. The strongest message of the Court's decision in Nelson, however, is that no matter how a challenge to lethal injection is characterized, last-minute challenges to lethal injection and stay requests are highly disfavored:
[A]s our previous decision in Gomez v. United States Dist. Courtfor Northern Dist. ofCal. , 503 U.S. 653 (1992) (per curiam), makes clear, the mere factthat an inmate states a cognizable §1983 claim does not warrant the entry of a stay as a matter ofright. Gomez came to us on a motion by the State to vacate a stay
21

entered by an en banc panel of the Court of Appeals for the Ninth Circuit that would have allowed the District Court time to consider the merits of a condemned inmate's last-minute §1983 action challenging the constitutionality of California's use ofthe gas chamber. We left open the question whether the inmate's claim was cognizable under §1983, but vacated the stay nonetheless. The inmate, Robert Alton Harris, who had already filed four unsuccessful federal habeas applications, waited until the 11 th hour to file his challenge despite the fact that California's method of execution had been in place for years: "This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by lastminute attempts to manipUlate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief." Id., at 654.
A stay is an equitable remedy, and "[e]quity must take into consideration the State's strong interest in proceeding with its judgment and ... attempt[s] at manipulation." Ibid. Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, [(citations omitted)], there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.
541 U.S. at ,2004 WL 1144374, at *8.
Any doubt that the Supreme Court meant exactly what it said in Nelson when it
harkened back to its decision in Gomez is dispelled by other actions taken by the Court earlier
in the term. Despite the pendency of the Nelson case, the Court denied stays of execution, or
vacated stays issued by lower courts, in many eleventh hour challenges to lethal injection
executions that did not involve a cut-down procedure. See Orbe v. True, 124 S. Ct. 1740
(Mar. 31,2004) (denying Virginia inmate's application for stay ofexecution); Ozmintv. Hill,
124 S. Ct. 1627 (Mar. 19,2004) (granting, in a South Carolina case, application to vacate
22

preliminary injunction of execution); Robinson v. Crosby, 124 S. Ct. 1196 (Feb. 4, 2004) (stay of execution in Ohio case denied); Roe v. Taft, 124 S. Ct. 1196 (Feb. 4,2004) (stay of execution in Ohio case denied); Vickers v. Johnson, 124 S. Ct. 1196 (Jan. 28,2004) (stay of execution in Texas case denied); Zimmerman v. Johnson, 124 S. Ct. 1196 (Jan. 21, 2004) (stay of execution in Texas case denied); Bruce v. Johnson, 124 S. Ct. 1142 (Jan. 14,2004) (stay of execution in Texas case denied); Ward v. Darks, 124 S. Ct. 1142 (Jan. 13, 2004) (stay of execution in Oklahoma case vacated); Williams v. Taft, 124 S. Ct. 1142 (Jan. 13, 2004) (stay of execution in Ohio case denied); Beckv. Rowsey, 124 S. Ct. 980 (Jan. 8,2004) (stay ofexecution in North Carolina case vacated). See also Cooper v. Rimmer, 358 F.3d 655 (9th Cir. 2004)(affirming district court's denial of injunctive relief and discovery in connection with last-minute challenge to lethal injection that could have been brought years earlier).
There is no reason for this Court to treat Oken differently. Oken's case is indistinguishable from the many other cases nominally filed under § 1983 challenging lethal injection in which the Supreme Court has refused to grant, or has lifted, stays of execution. See Exhibit C: Defendants' Response and Memorandum in Opposition to Motion for Preliminary Injunction or Stay of Execution in Hill v. Ozmint, Civil Action No. 2:04-048918AJ (U.S. Dist. Ct. for the District of South Carolina), stay lifted, Ozmint v. Hill, 124 S. Ct. 1624 (Mar. 9, 2004). Oken's last-minute request for equitable relief must be denied.
D. This Claim Is Barred By Res Judicata As previously stated, Oken has already brought the claims raised here in an action filed in state court, Oken v. Sizer, Cir. Ct. for Baltimore County, Case No. 03-C-045732.
23

Judgment for the defendants was entered in that case by Judge John Grayson Turnbull on June 2, 2004. The Maryland Court of Appeals denied Oken's request for a stay, and ruled against him on the merits on June 9, 2004. (A copy of the decision of the Court of Appeals, Oken's complaint, the order of the Circuit Court for Baltimore City transferring the case to the County, and Judge Turnbull's ruling, are attached as Exhibits B, D, E and F.) Because the same issues have been litigated between the parties, this action is barred by res judicata.
The preclusive effect given by a federal court to a prior state court judgment is to be determined by the law ofthe state. E.g., Migra v. Warren City Sch. Dist. Rd. oiEd., 465 U.S. 75,81 (1984). Under Maryland law, a prior court decision between the same parties has full preclusive effect on claims that were brought, or could have been brought, in the earlier action. See Colandrea v. Wilde Lake Comm. Ass'n, 361 Md. 371, 392, 761 A.2d 899 (2000)("[A] judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action and is conclusive, not only as to all matters decided in the original suit, but also as to matters that could have been litigated in the original suit. ")(emphasis in original). Because Oken has litigated these same claims in a state court action, he is barred from bringing them again in this Court.
E. Defendants Are Entitled to Summary Judgment Even if Oken has stated a claim, the defendants would be entitled to summary judgment. Oken' s application for relief of any kind should be denied because his claim that his execution by lethal inj ection would be unconstitutional is without merit. Oken's incorrect assertion that he is likely to suffer a needlessly painful death rests only on speculation and erroneous assumptions, not on a disputed issue of material fact.
24

The Eighth Amendment prohibits punishments that involve "'unnecessary and wanton inflictions ofpain,'" Estelle v. Gamble, 429 U.S. 97, 104 (1976)(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion)), or that are inconsistent with '''evolving standards of decency that mark the progress of a maturing society, '" Estelle, 429 U.S. at 102 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Executing a person is not in and of itself cruel and unusual punishment within the meaning ofthe Eighth Amendment: "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies something inhumane and barbarous, something more than mere extinguishment oflife." In re Kemmler, 136 U.S. 436, 447 (1890).
The Eighth Amendment does require that the death penalty be performed in a manner that avoids unnecessary or wanton infliction ofpain. State o/La. ex rei. Francis v. Resweber, 329 U. S. 459, 463 (1947). Any punishment must be consistent with human dignity and comply with current civilized standards. Trop v. Dulles, 356 U.S. at 100-01. The method to be used in Oken's case meets this standard. Indeed, it is the method used by the overwhelming majority of states that have capital punishment.
Thirty-seven of the thirty-eight states with the death penalty use lethal injection as a method of execution. I I The number of states authorizing lethal injection as a method of
11 The 37 states that currently authorize lethal injection for execution are: Alabama, Ala. Code 1975 § 15-18-82; Arizona, Ariz. Rev. Stat. Ann. § 13-704; Arkansas, Ark. Code Ann. § 5-4-617; California, Cal. Penal Code § 3604; Colorado, Colo. Rev. Stat. Ann. § 16-11-401; Connecticut, Conn. Gen. Stat. § 54-100; Delaware, Del. Code Ann. tit. 11, § 4209(f); Florida, Fla. Stats. § 922.105; Georgia, Ga. Code Ann., § 17-10-38; Idaho, Idaho Code § 19-2716; Illinois, Ill. S1. ch. 725, § 5/119-5 (a)(l); Indiana, Ind. Code Ann. § 35-38-6-1; Kansas, Kan. Stat. Ann. § 22-4001; Kentucky, Ky. Rev. Stat. § 431.220;
25

execution has increased from twenty-two in 1992 to thirty-seven in 2002. In 1992, two-thirds
of the executions in the United States were by means of lethal injection. In 2002, 99% of
executions were by lethal injection. 12 Since the death penalty was reinstated in 1977, 80% of
all executions in the United States have been by means of lethal injection (654 of 820:
Bureau of Justice Statistics Bulletin, Capital Punishment 2002, Nov. 2003, NCJ201848).
State and federal courts have consistently rejected challenges to lethal injection. 13
Louisiana, La. Rev. Stat. Ann. § 15:569 B; Maryland, Md. Code Ann., Corr. § 3-905; Mississippi, Miss. Code Ann. § 99-19-51 (1972); Missouri, Mo. Rev. Stat. § 546.720; Montana, Mont. Code Ann. § 46-19-103; Nevada, Nev. Rev. Stat. § 176.355 1; New Hampshire, N.H. Rev. Stat. Ann. § 630:5 XIII.; New Jersey, N.J. Stat. Ann. § 2C:49-2; New Mexico, N.M. Stat. Ann. § 31-14-11; New York, N.Y. Correct. Law § 658; North Carolina, N.C. Gen. Stat. § 15-187; Ohio, Ohio Rev. Code Ann. § 2949.22(B)(1); Oklahoma, Okla. Stat. Ann. tit. 22 § 1014; Oregon, Or. Rev. Stat. Ann. § 137.473; Pennsylvania, Pa. Stat. Ann. tit. 61 § 3004; Maryland, S.c. Code § 24-3-530; South Dakota, S.D. Codified Laws § 23A-27A- 32; Tennessee, Tenn. Code Ann. § 40-23-114; Texas, Texas Code Crim. P. Ann. § 43.14; Utah, Utah Code Ann. § 77-18-5.5; Virginia, Va. Code § 53-1-233; Washington, Wash. Rev. Code Ann. § 10.95.180; and Wyoming, Wyo. Stat. Ann. § 7-13-904. In addition, the United States government and the United States military also currently authorize lethal injection for executions. See 28 C.F.R. § 26.3(4); Army Reg. 190-55.
12 Between January 1,2003 and November 7,2003, there were 60 executions by civil authorities in the United States and 59 were by lethal injection and one by electrocution (Virginia). The states performing lethal injections during this period were: Texas (21); Oklahoma (14); North Carolina (5); Alabama (3); Florida (3); Georgia (3); Ohio (3); Indiana (2); Missouri (2); Virginia (2); Arkansas (1); Federal Government (1). Bureau of Justice Statistics Bulletin, Capital Punishment 2002, Nov. 2003, NCJ201848.
13 Arizona: State v. Hinchey, 890 P.2d 602,610 (1995), cert. denied, 516 U.S. 993; California: People v. Snow, 30 Cal. 4th 43, 127 (2003); People v. Welch, 20 Cal. 4th 701, 770-73 (1999); People v. Fairbank, 16 Cal. 4th 1223, 1255-56 (1997); People v. Holt, 15 Cal. 4th 619, 702-03 (1997); People v. Bradford, 14 Cal. 4th 1005, 1058-59 (1997); Connecticut: State v. Webb, 680 A.2d 147 (Conn. 1996); State v. Webb, 252 Conn. 128, 138, 750 A.2d 448 (Conn. 2000), cert. denied, 531 U.S. 835; Delaware: Dawson v. State, 673 A.2d 1186 (Del. 1996), cert. denied, 519 U.S. 844; Florida: Sims v. State, 754 So.2d
26

These legislative and judicial determinations are evidence of society's approval of lethal
injection as an appropriate means ofexecution. State v. Webb, 252 Conn. at 145-46, 750 A.2d
at 457. "There is general agreement that lethal injection is at present the most humane type
ofexecution available and is far preferable to the sometimes barbaric means employed in the
past. Many states have now abandoned other forms of execution in favor oflethal injection."
Hill v. Lockhart, 791 F. Supp. at 1394. Indeed, medical experts have urged that death by
lethal injection is the most humane of any method of execution. See People v. Stewart, 121
Ill. 2d 93, 117 Ill. Dec. 187, 197,520 N.E.2d 348,358, cert. denied, 488 U.S. 900(1988).
Oken acknowledges that the chemicals used by the State ofMaryland are identical to
657 (Fla. 2000), cert. denied, 528 U.S. 1183; Idaho: Sivak v. State, 731 P.2d 192 (Idaho 1986); Illinois: People v. Stewart, 520 N.E.2d 348 (Ill. 1988), cert. denied, 488 U.S. 900; Indiana: Harrison v. State, 644 N.E.2d 1243 (Ind. 1995); Mississippi: Russell v. State, 849 So.2d 95, 144-45 (Miss. 2003); Carr v. State, 655 So.2d 824 (Miss. 1995), cert. denied, 516 U.S. 1076; Montana: State v. Gollehon, 864 P.2d 249 (Mont. 1993), cert. denied, 513 U.S. 827; Oklahoma: Romano v. State, 917 P.2d 12 (Ok. 1996); Oregon: State v. Moen, 309 Or. 45, 786 P.2d 111, 143 (Or. 1990); South Dakota: State v. Moeller, 548 N.W.2d 465,487-89 (S.D. 1996); Texas: Ex parte Granviel, 561 S.W. 503,514 (1978) (use of sodium thiopental); Tennessee: State v. Hines, 919 S.W.2d 573, 582 (Tenn. 1995), cert. denied, 519 U.S. 847; Virginia: Spencer v. Commonwealth, 238 Va. 563, 568-69,385 S.E.2d 850 (Va. 1989), cert. denied, 493 U.S. 1093; Wyoming: Hopkinson v. State, 798 P.2d 1186, 1187 (Wyo. 1990); District Court (Arizona): Lambright v. Lewis, 932 F.Supp. 1547 (D. Ariz. 1996), aff'd in part and remanded en banc sub nom., Lambright v. Stewart, 191 F.3d 1181 (9th Cir. 1999); LaGrand v. Lewis, 883 F.Supp. 469, 470-71 (D.Ariz. 1995), aff'd, 133 F.3d 1253 (9th Cir. 1998), cert. denied, 525 U.S. 1050; District Court (Arkansas): Oken v. Lockhart, 791 F.Supp. 1388, 1394 (E.D. Ark. 1992); Fifth Circuit: Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir. 1988), cert. denied, 492 U.S. 925; Ninth Circuit: Poland v. Stewart, 117 F.3d 1094, 1104-05 (9th Cir. 1997), cert. denied, 523 U.S. 1082; Rupe v. Wood, 93 F.3d 1434 (9th Cir. 1996), cert. denied, 519 U.S. 1142; Tenth Circuit: Andrews v. Shulsen, 802 F.2d 1256 (10th Cir. 1986), cert. denied, 485 U.S. 919; Federal prisoners: United States v. Chandler, 950 F.Supp. 1545 (N.D. Ala. 1996), aff'd 218 F.3d 1305, cert. denied, 531 U.S. 1204.
27

those used by other states which use lethal inj ection as a method ofexecution. See Plaintiff s
Memorandum at 11. However, Oken then argues that the use of the three drugs in
combination is unconstitutional. Id. Oken's argument is based on speculation disguised as
fact.
The affidavits of Dr. Mark Dershwitz, M.D., Ph. D., (submitted by the defendants in
the state case, copies ofwhich are attached as Exhibit G), refute Oken's dramatic claims with
scientifically supported facts. Dr. Dershwitz states:
8. It is my opinion, to a reasonable degree of medical certainty, that a 2.5% solution of thiopental sodium, the concentration specified above, administered at a rate of approximately 1 mL/sec, the low end of the range specified above, would render most people unconscious within sixty seconds from the start of administration. By the time all 120 mL of thiopental sodium solution are injected, at a rate of 1 mL/sec, 99.999999999% of a population weighing 286 pounds would be rendered unconscious.
9. It is my opinion, to a reasonable degree ofmedical certainty, that the administration of 120 mL of a 2.5% solution ofthiopental sodium, as specified above, would cause virtually every person to stop breathing within one minute of administration. While the subsequent administration of pancuronium bromide would have the effect of paralyzing the person and preventing him from breathing, virtually every person given 3000 mg ofthiopental sodium, as specified above, will have stopped breathing prior to the administration ofthe pancuronium bromide. Thus, even in the absence of the administration of pancuronium bromide and potassium chloride, the administration of 3000 mg of thiopental sodium alone would be lethal to virtually every person.
10. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a 0.001 % probability that a 130 kilogram (286 pound) person administered 3000 mg of thiopental sodium would be conscious and able to experience pain five minutes after administration.
11. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a 0.007% probability that a 130 kilogram (286 pound) person administered 3000 mg of thiopental sodium would be conscious and
28

able to experience pain ten minutes after administration.
12. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a 0.077% probability that a 130 kilogram (286 pound) person administered 3000 mg of thiopental sodium would be conscious and able to experience pain thirty minutes after administration.
13. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a 1.5% probability that a 130 kilogram (286 pound) person administered 3000 mg of thiopental sodium would be conscious and able to experience pain one hour after administration.
14. It is my opinion, to a reasonable degree ofmedical certainty, that the administration of 3000 mg of thiopental sodium would render most people unconscious for a period of two hours.
15. It is my opinion, to a reasonable degree of medical certainty, that there is an exceedingly small risk that a 130 kilogram (286 pound) person administered 3000 mg as specified above could or would experience any pain associated with the subsequent administration of pancuronium bromide and potassium chloride, as specified above.
Dr. Dershwitz goes on to say:
18. Paragraphs 11, 12 and 13 of Dr. Heath's affidavit discuss the more typical anesthetic use of thiopental sodium and suggest that its use in the manner specified above is inappropriate for the purpose of execution. To the contrary, it is my opinion, to a reasonable degree of medical certainty, that the use of thiopental sodium in the quantity and manner specified above, in combination with the other drugs as specified above, will promote a rapid and painless death. When thiopental sodium is commonly used for general anesthesia in surgery, it is normally administered in a dose of300 to 400 mg[.] The dose used in the lethal injection procedure specified above, 3000 mg, is more than 7 to 10 times the commonly used surgical dose. Moreover, it is my opinion, to a reasonable degree of medical certainty, that the "continuous" administration ofthiopental sodium for the duration ofthe execution procedure would not significantly decrease the already exceedingly low risk of the individual regaining consciousness from the initial administration of the thiopental sodium, and is not necessary to promote a rapid and painless death.
29

19. Paragraphs 12, 17, and 27(k) of Dr. Heath's affidavit discuss his concerns about the effect ofthe possible mixing, in the intravenous tubing, of the thiopental sodium and the pancuronium bromide. To the contrary, it is my opinion, to a reasonable degree of medical certainty, that if the intravenous tubing is flushed for 10 seconds following the administration of the sodium pentothal and prior to the administration of the pancuronium bromide, as specified above, there is no risk of such mixing. Furthermore, Dr. Heath is in error in his contention that the mixing of the standard solutions of thiopental sodium and pancuronium bromide will cause the thiopental sodium to precipitate and thus become inactive. In fact, when these two medications are mixed, it is the pancuronium bromide that precipitates and becomes inactive, while the thiopental sodium retains its full activity.
20. Many Paragraphs of Dr. Heath's affidavit, particularly Paragraph 24, refer to his opinion that the use of pancuronium bromide serves no legitimate purpose in an execution, instead constituting merely a "chemical veil" that "deceives observers into believing that they have witnessed a humane event." To the contrary, it is my opinion, to a reasonable degree of medical certainty, that the administration of pancuronium bromide in the manner specified above would act to stop breathing, if breathing has not already stopped as a result of the administration of thiopental sodium, and would act to prevent the outward manifestation of the seizure activity that commonly occurs when a person's heart stops beating. Such seizure activity could erroneously be interpreted by the lay observer as pain or discomfort.
21. At Paragraph 30 ofhis affidavit, Dr. Heath seems to suggest that not even emergency medical technicians and physician assistants have the requisite training and experience to properly implement the procedures necessary to promote a rapid, painless, and humane execution. To the contrary, it is my opinion, to a reasonable degree of medical certainty, that it is not essential to staff an execution conducted in accordance with the procedures specified above exclusively with credentialed medical personnel. It is my opinion that IV catheters can properly be placed by appropriately trained, experienced, and credentialed medical paraprofessionals, and that a licensed physician should be present throughout the lethal injection procedure.
Dr. Dershwitz's declarations give this court complete assurance as a matter of
competent, scientific fact, that the overwhelming likelihood is that Oken's execution will be
accomplished without unconstitutional pain and suffering. In response, Oken offers only
30

speculation as to what could possibly happen, through the claims of Dr. Heath and the belated and unsupported contention that there was a problem in the last execution carried out in Maryland that has not been remedied. See Complaint ~ 23. Oken certainly has not come forth with competent evidence that the problem he claims occurred (dripping from an IV line) resulted in an unconstitutional execution. More importantly, even if problems had occurred in the past, or might occur in the future, "[t]he risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review." Campbell v. Wood, 18 F.3d at 681.
In a case nearly identical to Oken's, Cooper v. Rimmer, 358 F.3d 655 (9th Cir. 2004), the Ninth Circuit recently affirmed the district court's denial ofa temporary restraining order, a preliminary injunction, and expedited discovery, all of which Cooper had sought in connection with his last-minute challenge to the state's lethal injection procedures. The court also found no merit in any of Cooper's substantive complaints about an allegedly deficient execution protocol, use of allegedly untrained personnel, or the administration of the same three drugs that will be used during Oken's execution. See id. at 657-59. The Ninth Circuit noted the widespread adoption oflethal injection and held that the possibility of error in the process is not enough to make a case of substantial risk of unconstitutional pain and suffering. This Court should follow the Ninth Circuit's decision in Cooper v Rimmer and reject Oken's unsupported claims.
Lethal injection is used by nearly every state that imposes capital punishment. Its constitutionality as a method of execution has been upheld time and again. There can be no doubt that lethal injection is not cruel and unusual punishment per se. As for Oken's
31

particular case, Defendants have demonstrated through the affidavits of Dr. Dershwitz that the possibility of Oken enduring unconstitutional pain and suffering during his execution is remote. Accordingly, the defendants are entitled to summary judgment on the merits. IV. Conclusion.
For the foregoing reasons, the defendants respectfully request that this Court deny Oken's requests for a stay ofexecution and dismiss the complaint, or, in the alternative grant summary judgment in their favor.
Respectfully submitted, J. JOSEPH CURRAN, JR. A~G~~eral of Maryland
~ /U4~~~~-­
DAVID P. KENNEDY (07957) ANN N. BOSSE (07867) SCOTT S. OAKLEY (06308) Assistant Attorneys General St. Paul Plaza - 19th Floor 200 St. Paul Place Baltimore, Maryland 21202 (410) 576-6424 Fax: (410) 576-6880 Attorneys for Defendants
res.4,wpd
32

 
 1 ;-1 ,.~ .....
IN THE UNITED STATES DISTRICT co~IiJf;·,ii~::;: ~"r:-:::'ii:';~;Y!~_::IIJ

FOR THE DISTRICT OF MARYLAND

STEVEN H. OKEN, # 212-612

*

.",. P \: 21 'II ; ~::l, ~! "1
[

l.

Plaintiff,

*

I

! '

I ,

v. FRANK C. SIZER, JR., et al.

*

Civil Action No: PJM-04- If,50 .

*

Defendants.

*

* * * * * * * * * * * * *

DEFENDANTS' OPPOSITION TO REQUEST FOR STAY OF EXECUTION, AND MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

Defendants, Frank Sizer, Jr., Commissioner of the Maryland Division of Correction

(DOC), William Williams, Warden of the Maryland Correctional Adjustment Center

(MCAC), Gary Hornbaker, Warden of the Metropolitan Transition Center (MTC), by their

attorneys, J. Joseph Curran, Jr., Attorney General of Maryland, and David P. Kennedy, Ann

N. Bosse, and Scott S. Oakley, Assistant Attorneys General, hereby oppose the plaintiffs

request for a stay of execution and move, pursuant to Fed.R.Civ.P. 12(b), to dismiss the

complaint filed herein or, in the alternative, pursuant to Fed.R.Civ.P. 56, for summary

judgment. The grounds of this Opposition and Motion are:

l.The complaint fails to state a claim under 42 U.S.c. § 1983 upon which the relief

prayed can be granted;

2. This Court lacks jurisdiction over the claim ifconstrued as a claim under 28 U.S.C.

§ 2254;

3. The Plaintiffis not entitled to any equitable reliefin the form ofa stay ofexecution; 4. The claim is barred by res judicata; and, 5. There is no genuine dispute as to any material fact and Defendants are entitled to judgment in their favor as a matter of law. WHEREFORE, the Defendants pray that this Court deny a stay of execution and dismiss the complaint against them or, in the alternative, award them summary judgment in this case. In support of this Motion, Defendants submit the accompanying Memorandum of Law and Exhibits.
Respectfully submitted, 1. JOSEPH CURRAN, JR. Attorney General of Maryland
DAVID KENNEDY (07957) ANN N. BOSSE (07867) SCOTT S. OAKLEY (06308) Assistant Attorneys General St. Paul Plaza - 19th Floor 200 St. Paul Place Baltimore, Maryland 21202 (410) 576-6424 Fax: (410) 576-6880 Attorneys for Defendants
2

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 11th day of June, 2004, a copy of the foregoing
Opposition to Request for Stay of Execution and Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment and Memorandum in Support thereof, was transmitted to Mr.
Bennett by email at fred7000@aol.com and to Michael E. Lawlor by email at
lawlor@bennettlawlor.com, and will be hand-delivered on June 14,2004, to:
Fred Warren Bennett Bennett & Lawlor, LLP 6301 Ivy Lane Suite 419 Greenbelt, MD 20770-6345

res.4.wpd

Assistant Attorney General

3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STEVEN HOWARD OKEN,

*

*

Plaintiff

*

*

v.

*

*

FRANK C. SIZER, JR., Commissioner, *

Maryland Division of Correction, et al., *

*

Defendants

*

Civil No. PJM 04-1830

OPINION
I. Introduction In 1987, Steven Howard Oken murdered Dawn Marie Garvin in merciless fashion, shattering the lives of her family and friends forever. The suffering that this young woman underwent, that her family and friends have undergone since, is unimaginable. Since his conviction of this crime and his sentence of death in 1991, in an effort to undo his conviction, Oken has pursued appeals, post-conviction proceedings, at least one federal habeas corpus proceeding (handled by this member of the Court), and yet further appeals, including to the U.S. Supreme Court. His guilt and conviction are now definitively established and he has exhausted all avenues of possible modification.

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Oken comes before this Court in a different type of proceeding, a civil action in which he
alleges a violation of his constitutional rights by reason of the manner in which his execution by lethal
injection, scheduled to take place this week, will occur. Abandoning a number of other issues raised in his
Complaint to this Court, Oken poses a single issue:
Whether Maryland’s Execution Protocol, allegedly designed to prevent the barbiturate from leaking all over the death chamber floor, as occurred during the last lethal injection administered in the State, establishes an Eighth Amendment violation in that an unreasonable risk exists that Oken’s executioners lack the requisite proficiency in establishing and maintaining an IV line capable of introducing all the barbiturate necessary to successfully produce his unconsciousness and that his executioners are deliberately indifferent to this critical requirement.
There is a subset of this issue, however, which pertains to the Execution Protocol that the
State of Maryland intends to follow in carrying out his death sentence. Oken claims that the State
unreasonably delayed in providing him just 3 days ago with a copy of its current Execution Protocol, which
was amended as recently as May 26, 2004 (indeed, that Defendants have failed to furnish a copy of the
full Protocol, some 16 pages having been omitted), and that he has therefore had insufficient time to review
it with his counsel and medical expert.
Defendants, all corrections officials of the State of Maryland, 1 deny the validity of Oken’s
constitutional claim on the merits and raise several procedural defenses, among them:
1
Defendant Frank Sizer, Jr. is the Commissioner, Maryland Division of Correction. Defendant William Williams is the Warden of the Maryland Correctional Adjustment Center where death row inmates are housed. Gary Hornbaker is the Warden of the Metropolitan Transition Center where the execution will occur. Defendants, Unknown Executioners, are said to be employed or contracted by the Maryland Division of Correction to make preparations for, and carry out, the scheduled execution of Oken. They include, but are not limited to correctional officers, nursing assistants, and “executioners.”
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•

That this is not a proper § 1983 claim, but rather a successive habeas corpus

claim, which is precluded without special leave of court;

•

That the proceeding is barred by reason of the doctrine of res judicata;

•

That with regard to the Execution Protocol, Oken’s request for its production was

untimely;

•

That the State’s recent production of the Amended Execution Protocol was not

prejudicial to Oken because it made no substantive changes in the earlier protocol

as to which Oken had ample notice.

The Court heard oral argument this afternoon and advised the parties that it would make

no ruling on the merits of the claim, but would confine its consideration to the Motion for Stay.

Accordingly, at this juncture only these issues need to be decided:

1) Is Oken’s claim properly a § 1983 claim as opposed to a disguised successive

habeas corpus petition?

2) Is the claim barred by res judicata?

3) Was Oken’s request for the Execution Protocol untimely?

4) Was Oken prejudiced by the State’s recent delivery of the Execution Protocol

amended as of May 26, 2004?

II.

Procedural History

On January 29, 2003, the Circuit Court for Baltimore County denied Oken’s motion to

correct an illegal sentence in which he argued that Maryland’s death penalty statute is unconstitutional

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because it imposes an improper burden of proof. Oken v. State, 378 Md. 179 (2003). Oken appealed and on November 17, 2003, the Court of Appeals of Maryland denied relief. On December 15, the Court of Appeals denied Oken’s Motion for Reconsideration. On April 26, 2004, the U.S. Supreme Court denied his Petition for Writ of Certiorari. Oken v. Maryland, 124 S. Ct. 2084 (2004). That same day, Judge John Grason Turnbull, II of the Circuit Court for Baltimore County signed a warrant for Oken’s execution, directing that execution by lethal injection take place during a five-day period beginning today, June 14, 2004.
By letter to an Assistant Attorney General of Maryland, dated May 10, Oken’s counsel sought production, inter alia, under the Maryland Public Information Act (MPIA), Md. Code Ann., State Gov’t., § 10-611 et seq., of the Execution Protocol that would be followed in his case. On May 12, the State responded, advising Oken’s counsel that they would receive a response “within the reasonable period required by the Act.”
On May 14, Oken filed a motion for appropriate relief in the Circuit Court for Baltimore County in which he asked the court to vacate the Warrant of Execution, alleging that the lethal injection process to be used in his case did not comport with the language of Section 3-905 of the Correctional Services Article of the Maryland Code. 2 Three days later, Oken filed a civil action in the Circuit Court
2
The Correctional Services Article, § 3-905(a), provides: “(a) ... The manner of inflicting the punishment of death shall be the continuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medical practice.”
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for Baltimore City seeking temporary and permanent injunctive relief that would bar the State of Maryland from carrying out the execution as scheduled and a declaratory judgment that the Division of Correction’s method of carrying out a lethal injection execution was unconstitutional and violative of Maryland statutory law.
Following a hearing on May 25, Judge Marcella A. Holland of the Circuit Court for Baltimore City ordered that Oken’s civil action in the Circuit Court for Baltimore City be transferred to the Circuit Court for Baltimore County. On June 2, Judge Turnbull denied Oken’s Motion for Appropriate Relief in his original Baltimore County case, and in the case transferred from Baltimore City, granted Defendants’ Motion for Summary Judgment, necessarily denying Oken’s request for stay of execution pending discovery. On June 7, Oken’s appeal from that order was argued in the Maryland Court of Appeals. By per curiam order dated June 9, the Court of Appeals affirmed Judge Turnbull’s decision in all respects. On Friday, June 11, Oken’s counsel for the first time received a copy of the Execution Protocol that had been amended on May 26. Today, Monday, June 14, the present action in Federal Court was filed.
Oken argued that the State of Maryland’s method of performing lethal injections was incompatible with § 3-905(a). According to Oken, while the statute requires the continuous use of an ultrashort-acting barbiturate or similar drug, Maryland in fact begins with the administration of a fixed amount of sodium pentothal (the barbiturate) followed by fixed amount of pavulon. The administration of the barbiturate is not, therefore, continuous. At the same time, a third drug, potassium chloride, is used, as opposed to the two drugs implied in the statute. These arguments were rejected by the Maryland Court of Appeals and are not before this Court.
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III. § 1983 vs. Habeas Corpus Proceeding The Court will not labor over this issue. It views the Supreme Court’s recent decision in Nelson v. Campbell, 124 S. Ct. 2117 (May 24, 2004) as dispositive. In Nelson, an Alabama inmate facing death by lethal injection brought a § 1983 action, claiming that the “cut-down” procedure that would be used to access his veins was cruel and unusual within the terms of the Eighth Amendment. 3 The state opposed the suit, principally on the grounds that it challenged the fact of the inmate’s sentence, hence it could only be brought as a habeas corpus claim, which, without leave of court, would be barred as successive. The Supreme Court disagreed, noting that Nelson had been careful not to challenge lethal injection as a method of execution in general, but only “as applied” to him, i.e. through use of the cut-down procedure. The Court acknowledged (and the State of Alabama conceded) that, had the cut-down procedure been used in a non-death setting involving a prisoner, the Eighth Amendment would clearly have applied. “We see no reason on the face of the complaint,” said the Court, “to treat petitioner’s claim differently solely because he has been condemned to die.” 124 S. Ct. at 2123. In effect, the Court viewed the challenge to the cut-down procedure as a challenge to a condition of confinement, well within the province of a §1983 action, as opposed to a challenge to the fact or duration of his sentence, which could only be raised by habeas.
3
A “cut-down” procedure involves making an incision in an individual’s arm or leg for the purpose of gaining venous access, usually in an individual with compromised peripheral veins. In Nelson, the State of Alabama’s “cut-down” procedure required prison personnel to make a 2-inch incision in Nelson’s arm or leg one hour before the scheduled execution while under local anesthesia. 124 S.Ct at 2121.
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This Court views a challenge to the manner of administration of an IV in a death setting as little different from its administration in a non-death setting. Both instances involve inserting an IV into the individual, infusing chemicals, monitoring vital signs, and making appropriate adjustments as circumstances may require. The procedures relate to each other in much the same fashion as a cut-down procedure in a non-death setting relates to such a procedure in a death setting.
Accordingly, the Court understands Oken’s challenge to be to a condition of his confinement, not to the fact of his conviction. As such, it qualifies as a § 1983 action.
IV. Res Judicata Defendants argue that res judicata bars this action since Oken asserted the deficiencies of the Execution Protocol in the State court action he filed in May, which resulted in summary judgment in favor of Defendants on that and all other issues. Defendants invite the Court’s attention to familiar legal authority. Thus, they say, the preclusive effect given by a federal court to a prior state court judgment is to be determined by the law of the state. E.g., Migra v. Warren City Sch. Dist. Bd. of Ed., 465 U.S. 75, 81 (1984). Under Maryland law, a prior court decision between the same parties has full preclusive effect with respect to claims that were brought, or could have been brought, in the earlier action. See Colandrea v. Wilde Lake Comm. Ass’n, 361 Md. 371, 392, 761 A.2d 899, 910 (2000) (“[A] judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action and is conclusive, not only as to all matters decided in the original suit, but also as to matters that could have been litigated in the original
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suit.”) (emphasis is original). Because Oken has litigated these same claims in a state court action, he is barred from bringing them again in this Court.
Oken responds with citation to equally familiar legal authority. Res judicata bars a litigant from bringing a claim in a § 1983 action only where the state court has given the parties a full and fair opportunity to litigate federal claims and the state proceedings satisfy procedural due process requirements. Migra, 465 U.S. at 82 n.5; Allen v. McCurry, 449 U.S. 90 (1980); Kremer v. Chemical Contr. Corp., 456 U.S. 461, 485 (1982). The Supreme Court, he says, has clearly stated that “[re]determination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” Montana v. United States, 440 U.S. 147, 164 n.11 (1979). Here there are substantial reasons to doubt the quality, extensiveness, or fairness of procedures used in the state court. Oken argues that the state court proceedings were procedurally unfair for at least two reasons. First, the state denied him adequate discovery to litigate his claims in state court and such a denial of discovery prior to the state court proceedings is precisely the kind of procedural defect that will defeat the defense of res judicata. For example, in West v. Ruff, 961 F.2d 1064, 1066 (2d Cir. 1992), the court cited the lack of sufficient discovery as one of the reasons why the plaintiff lacked a full and fair opportunity to litigate his claim in state court. See also, Jorden v. Nat’l Guard Bureau, 877 F.2d 245, 250 n.21 (3d Cir. 1989) (declining to give preclusive effect to prior proceeding where defendant not afforded adequate discovery). Here, Oken did not receive the information he sought about the Maryland execution protocol until long after the state court proceedings had been completed. Second, the state court proceedings were
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far from extensive. The Circuit Court, after hearings lasting a matter of minutes, summarily granted summary judgment in a one line order even though there were material facts in dispute.
Having been denied discovery and an opportunity to develop an appropriate record, Oken contends that he was denied the full and fair hearing requisite to a finding of the res judicata bar.
While the Court does not agree that the res judicata bar is inapplicable merely because a litigant may have suffered summary judgment in the prior proceeding, even without the benefit of discovery, see Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 713 (2d Cir. 1977) (mere fact that prior decision on the merits was reached by summary judgment does not preclude a later finding of res judicata); Gilbert v. Bach, 697 F. Supp. 202, 203 (D. Md. 1988) (same), a second point is more telling. The Amended Execution Protocol that Defendants formulated as of May 26, 2004, was neither available to the Baltimore Circuit Court when it denied Oken’s Motion for Stay on June 2, nor indeed – even though it existed as of June 7 when the parties argued for a stay in the Maryland Court of Appeals – was it apparently made available in that court. In consequence, Oken never had the opportunity to challenge the Execution Protocol – old or new – except insofar as he was obliged to rely on the affidavit of a prison official as to what the Protocol provided. Access to the Protocol, however, as the Court explains infra, was Oken’s entitlement as a matter of fundamental fairness, if not due process. Because, for whatever reasons, Defendants withheld the Amended Execution Protocol during Oken’s attempt to persuade the state’s courts to stay his execution, they denied him the right to even the minimal hearing that might have permitted him to defeat their motion for summary judgment. Defendants will not now be heard to say that Oken is precluded from presenting a possible claim based on the late-delivered Amended Execution Protocol in this Court.
-9-

V. Timeliness of Oken’s Request for Execution Protocol/
Prejudice From Lateness of State’s Production Defendants rely heavily on the argument that Oken could have raised his challenge to any aspect of the State’s lethal injection procedure years ago, perhaps as early as 1994 when Maryland converted from lethal gas to lethal injection as its method of execution. Even a year ago or several months ago, say Defendants, would have been timely, but not 29 days prior to Oken’s scheduled week of execution. Oken offers a number of explanations in response, some more convincing than others,4 but one point, in the Court’s view, trumps all others. Because the State’s Execution Protocol was amended as recently as May 26, 2004, it would have made little difference whether Oken’s request had come any time before that date. As of that date, a different Protocol was put in place and, whatever changes it might contain, Oken was entitled to review it with his counsel and medical expert and attempt to challenge it. It can hardly be said that the filing of suit in this Court today, June 14, 2004, the Monday following the Friday that Oken’s attorneys first received the Amended Execution Protocol, was untimely. Still, Defendants insist, the Amended Execution Protocol made no substantive changes in the old and since Oken knew (or should have known) what the old Protocol said, he was not prejudiced
4
The Court, for example, finds the fact that the Supreme Court announced its holding in Nelson on May 24, 2004, a convincing justification for delay on Oken’s part. Until that date, it was very much up in the air whether a challenge to a method of execution, even as applied, could be brought in a § 1983 action as opposed to a much more difficult successive habeas petition. The Supreme Court’s decision in Nelson made clear that a § 1983 action, at least under some circumstances, properly lies. 124 S. Ct. at 2122.
-10-

thereby and should not be permitted to use this Eleventh Hour “hook” (defense counsel’s word) to avoid his fate.
Defendants ask too much of Oken and of the Court. They ask that it be taken on faith, first, what the old Protocol consisted of, based solely on the affidavit of a prison official as to what it contained. They then ask that the word of that official and of counsel at oral argument be taken to establish that whatever changes were made in the amendments were merely procedural and not substantive. Both propositions are inadmissible and without any legal basis that the Court can conceive of.
Fundamental fairness, if not due process, requires that the execution protocol that will regulate an inmate’s death be forwarded to him in prompt and timely fashion. While the Court has located no cases specifically establishing a right of production, it is clear that in innumerable death penalty cases the execution protocols have been examined by courts for their compliance with constitutional requirements. See, e.g., Nelson, 1245 S. Ct. 2117; In re Williams, 359 F.3d 811 (6th Cir. 2004); Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1996), cert. denied, 523 U.S. 1082; Campbell v. Wood, 18 F.3d 663 (9th Cir. 1994), cert. denied, 511 U.S. 1118; Cooper v. Rimmer, 2004 WL 231325 (N.D. Cal. 2004), aff’d, 358 F.3d 655; Cal. First Amendment Coalition v. Woodford, 2000 WL 33173913 (N.D. Cal. 2000), aff’d, 299 F.3d 868; Jones v. McAndrew, 996 F. Supp. 1439 (N.D. Fl. 1998); LaGrand v. Lewis, 883 F. Supp. 469 (D. Ariz. 1995), cert. denied, 525 U.S. 971. Obviously, the fact of court review of the protocols presupposes their production.
-11-

Due process requires nothing less – an opportunity to receive notice of how one’s rights
will be affected and opportunity to respond and be heard. Cf. Mullane v. Central Hanover Bank, 339 U.S.
306, 314 (1950). 5
Oken is entitled to show – or at least to attempt to show – how his rights have been
affected by the changes in the Execution Protocol. If the recent changes were indeed procedural, it may
well be that Oken cannot succeed. Cf. Poland v. Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997);
McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir. 1995). On the other hand, if the changes affect a
substantial right, he may have a valid claim. Cf. Collins v. Youngblood, 497 U.S. 37, 40-41 (1990).
5
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457; Grannis v. Ordean, 234 U.S. 385; Priest v. Board of Trustees of Town of Las Vegas, 232 U.S. 604; Roller v. Holly, 176 U.S. 398. The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and Cf. Goodrich v. Ferris, 214 U.S. 71 (1909).
* * * But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonable certain to inform those affected...” Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314 (1950)(parallel citations omitted).
In particular, inmates facing the death penalty are entitled to notice when there has been a post-conviction change in mode of execution. See, e.g., Stewart v. LaGrand, 526 U.S. 115, 119 (1999); Poland v. Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir.1998); Sims v. Florida, 754 So.2d 657, 665 (Fla. 2000); DeShields v. State, 534 A.2d 630, 639 n. 7 (Del. 1987); Wetzel v. Wiggins, 85 So.2d 469, 471 (Miss. 1956); State v. Fitzpatrick, 684 P.2d 1112, 1113 (Mont. 1984).
-12-

In any event, Oken was and is entitled to review the full Protocol itself. He is not limited to taking Defendants’ word that his rights will not be violated by what they propose to do.
The Court finds Oken’s request of the Execution Protocol was timely. It finds further that he was prejudiced by Defendants’ late, last-minute production of the document.
VI. The Court turns to a consideration of the factors relevant to a grant vel non of a stay of execution in this case. Its conclusion should come as no surprise. The Supreme Court in Nelson set out the factors relevant to the grant of a stay in these circumstances: Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State’s significant interest in enforcing its criminal judgments, see Blodgett, 502 U.S., at 239, 112 S. Ct. 674; McCleskey, 499 U.S., at 491, 111 S. Ct. 1454, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay. 124 S. Ct. at 2126. The parties agree that, insofar as the law in the Fourth Circuit is concerned, these factors are not of equal weight. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 2001). “If the hardship balance tilts sharply in the plaintiff’s favor, the required proof of likelihood of success is substantially reduced.” Direx Israel Ltd. v. Breakthrough Med. Corp., 952 F.2d 353, 359 (4th Cir. 1992).
-13-

The Court considers the factors in this case: As to the balance of hardship, Oken contends: First, if the injunction is not granted, he will suffer irreparable injury because he will be executed before the merits of his cogent claim is addressed. See Wainwright v. Booker, 473 U.S. 935, 935 n.1 (1985) (Powell, J., concurring) (recognizing that there is little doubt that a prisoner facing execution will suffer irreparable injury if the stay is not granted). Second, says Oken, the injunction will do no harm to Defendants because there is no fear of the state’s judgment being avoided or denied; in fact, plaintiff does not seek such relief. All he seeks is a death in “accord with the dignity of man, which is the basic concept underlying the Eighth Amendment.” Gregg v. Georgia, 428 U.S. 153, 173 (1976) (internal citations omitted). Defendants characterize the relative hardships this way: While the irreparable harm to one seeking a stay of execution is ordinarily obvious, Oken is not contesting the right of the State eventually to execute him. He only challenges the presently planned manner of execution. Therefore, the true measure of the likelihood of irreparable harm to Oken is the chance that his execution by lethal injection as now planned will be unconstitutionally painful. That chance is minimal. On the other hand, the likelihood of harm to Defendants is substantial. The State has a significant interest in enforcing its criminal judgments. Nelson, 124 S. Ct. at 2126. The public also has an interest in state criminal sanctions being administered by the persons authorized to do so because of their training and experience, not by the federal courts. See Taylor v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994) (“It is well established that absent the most extraordinary circumstances, federal courts are not to
-14-

immerse themselves in the management of state prisons or substitute their judgment for that of the trained penological authorities charged with the administration of such facilities.”)
Moreover, since the enactment of the Prisoner Litigation Reform Act in 1995 (if not before, see Lewis v. Casey, 518 U.S. 343, 354 (1996) (vacating system-wide injunction relating to provision of legal materials and services in absence of actual deprivation of access except in isolated cases); Taylor, 34 F.3d at 269 (decrying breadth and detail of injunctive relief based on insufficient preliminary findings of violations and without giving prison officials first opportunity to craft remedy)), federal courts issuing injunctive relief in prisoner cases have been under the additional requirement that they “shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of a Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)&(2) (2000). Under the PLRA, federal courts are prohibited from becoming involved in the actions of the state’s correctional system absent compelling reasons. A court considering whether to grant injunctive relief in a prisoner case must give substantial weight to any adverse impact on public safety or the operation of the criminal justice system. Id.
Finally, say Defendants, the Supreme Court in Nelson reiterated that the last-minute nature of a request for a stay of execution is a factor to be considered in determining whether to grant that particular form of equitable relief. Because of the state’s interest in carrying out its criminal judgments, there is a “strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Nelson, 124 S. Ct. at 2126.
-15-

The Court concludes that, on balance, the greater hardship would be suffered by Oken who will otherwise die this week, rather than by Defendants, who remain able to execute him in appropriate fashion in proper time.
The issue of likelihood of success on the merits, therefore, is reduced insofar as what Oken is required to show in order to obtain a stay, so long as he presents a substantial and serious issue. 6 The issue of Oken’s likelihood on success on the merits, indeed whether a substantial and serious issue is present, is difficult to assess at this time. The Court is not prepared to say that Oken is likely to prevail in establishing that the manner in which the State of Maryland would administer a lethal injection to him constitutes a cruel and unusual punishment or even, as he might argue hereafter, that the issue he raises is sufficiently serious and substantial as to merit a further stay. But Defendants themselves contributed to this state of affairs by their last minute amendment of the Execution Protocol and by their even later delivery of a copy of that Protocol (moreover, incomplete Protocol) to Oken’s counsel.
The Court understands that, while it must consider whether certain methods of execution, as applied, raise possible constitutional questions, some issues raised may be so frivolous that it is possible, consistent with Nelson, for the Court to dismiss these claims without allowing any discovery or even a response from the State. 124 S. Ct. at 2126. This is not one of those cases. Here the issue is a condemned man’s right to have reasonable access to the Execution Protocol that will be applied in his case,
6
As for the public interest, the Court concludes that consideration of this factor is evenly balanced between the parties. The State has strong interest in seeing the fulfillment of its legal judgments. Individuals, on the other hand, are entitled to “die with dignity,” at least consistent with the requirements of the Eighth Amendment. At a minimum, they are entitled to be able to make that argument.
-16-

to review it with his counsel and his medical expert, and to determine whether there are appropriate challenges to make to it based on Eighth Amendment grounds. 7
The Court concludes that Oken is entitled to a complete copy of the State’s Amended Execution Protocol, that the Protocol could and should have been made available to him on the earliest possible date, i.e. on May 26, 2004, or certainly no more than a day or two thereafter. The State’s delay in providing the Protocol to Oken, moreover, which coincided with the decision of the Maryland Court of Appeals’ denial of Oken’s Motion for Stay, is troubling. The Court is left to wonder whether, if the Maryland Court of Appeals had received a copy of the Amended Protocol (it is not even clear whether the Maryland Court of Appeals was even advised that the Protocol was in the process of amendment), its decision regarding the stay might have been different. Only after that court ruled was the Amended Protocol sent to Oken’s counsel and then – whereas, earlier pleadings had apparently been delivered by courier – it apparently was sent by ordinary mail.
The Court is deeply solicitous of the family and friends of Dawn Marie Garvin and acknowledges their desire, after so many years, to see closure in this case. Nevertheless it is the Court’s
7
Given the late delivery of the Amended Protocol to defense counsel, Oken’s counsel had extremely limited time to review the Amended Protocol with Oken’s expert, Dr. Heath. However, at oral argument held today, counsel for Oken gave some idea of what Dr. Heath might be able to say in response to the Amended Protocol, having discussed the matter with him by telephone that morning. See Appendix A (partial transcript of Attorney Jerome Nickerson’s argument to the Court, 6/14/04). One indication that the Amended Protocol might bear directly on Oken’s claim that administration of the IV is problematic, constitutionally or otherwise, is Defendant’s recent concession that, during the last execution by lethal injection in this State, that of Tyrone Gilliam in 1998, the IV in fact was maladministered and dripped.
-17-

duty, strongly reinforced in light of current world events, to see that the guarantees of the U.S. Constitution are respected, even in the case of someone who may be despised by the entire polity.
For the foregoing reasons, the Court will enter a STAY of the Warrant of Execution pending further Order of the Court.
VII. The following Order, in the Court’s view, is consistent with the requirements of the PLRA, in that it extends no further than to correct the violation of a federal right, namely, the right of a death penalty inmate to have timely access to the Protocol that will determine the manner of his death. It will not have any impact on public safety or the operation of the criminal justice system. The State of Maryland is directed to provide to Oken’s counsel, within 48 hours, a complete set of the Amended Execution Protocol, which may be delivered on a confidential basis for Oken’s counsel’s eyes only (to be discussed with Oken, but not left with him). Thereafter, Oken’s counsel shall have 10 days in which to file an appropriate pleading and affidavits challenging any aspect of the said Amended Execution Protocol on Eighth Amendment grounds. Defendants shall have 10 days thereafter to file an opposition, including rebuttal affidavits. Oken shall then have 5 days to file a reply memorandum. The matter shall be set for further argument on July 19, 2004, at 10:00 a.m. A separate Order will be ENTERED.

June 14, 2004

/s/ PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

-18-

APPENDIX A
Partial Transcript of Attorney Jerome Nickerson’s Argument to the Court, 6/14/04
THE COURT: Go ahead. I want to know, while we’re on this, though, I’d like to know what your perception is about these new protocols versus the old, and why you think you’re prejudiced by what the new protocol says as opposed to what your earlier affidavit says.
MR. NICKERSON: Yes, sir. Part of it and let me just address that part of it for Your Honor. Part of it, Judge, is I don’t know who these guys are. I don’t know who unknown executions are. I don’t know their base level of training. I don’t know if it was a guy showing up and saying, You’re not on the execution team. And the guy who had his job before said, This is how we do it. This is how we’ve always done it or whether or not this person has some knowledge. Was he an EMT? How many times did he tray and stick somebody? Does he have proficiency in this kind of thing? How many times does he takes extension sets and put them together? How many times does he put a pressure bag over a IV –
THE COURT: Is that not in the protocol? Is that in the protocol?
MR. NICKERSON: That’s in the new protocol. Not in the old protocol, in the new protocol.
Training is a huge issue, a huge issue. I just want something more than, Don’t worry about it, they’re trained. I want something more than, Don’t worry about it, they’re trained, because all I get are these conclusory assertions. What I want to know is, I mean, this is where the unnecessary risks takes place. There’s no reason for them to use the extension sets. There’s no reason for them to use the pressure bag. There’s no reason in the world, Judge, no reason in the world why they can’t infuse that line under pressure and see if they have a leak. It’s just not.
Some of the protocols are the same. Others have changed. The quantities have changed, the state told you, Well, there’s no real confusion on that one. In the new protocols, Judge, there is confusion. It’s the lethal ingestion checklist, contents of syringe. This is from the new one. Although the execution manual says it was developed on May 26, this document actually says it was revised on June 8th, 2004.
They say 4.5 grams Sodium Pentothal, color marked red. And then at the very bottom, total injection, they say, they say 3 grams Sodium Pentothal, Sodium Pentothal.
-19-

There’s also an error with respect to Pavulon on this page. They are claiming that they are injecting 10 milequivalence of Pavulon. There’s no way they’re injecting 10 milequivalence of Pavulon. They’re injecting 12 micrograms of Pavulon. This is the most important document that the State of Maryland will generate because it has to do with the taking of human life. They’re changing it at the last minute. They’re inconsistent on quantities. They don’t have the right stuff down and they don’t have the procedures to do this. And let me just jump, Your Honor, to some of the stuff, if I may. If I heard the Assistant Attorney General correctly, he said, Well, they detected that they had a bad line going on Mr. Gilliam’s arm and they switched to the other arm. Judge, that means they had two bad lines on Mr. Gilliam. That’s what it means. Mr. Oken has never asserted he’s entitled to absolute certainty. We just need more than these guys are doing. Judge, these employees with the Maryland Department of Corrections, they are good men and women attempting to serve their state and their orders. We’re not saying they’re bad. We do need to look at things that have happened. We can’t, we can’t – we have a prior known condition. I have the number one expert in the country telling me, their new protocols have more problems. We just need to sit down and talk just like Nelson. I mean, they worked it out. They haven’t been able to – they haven’t been willing to talk to us and they don’t want to share protocols with us and I don’t understand. Because we want them to do good government. We want this execution to be humane. I watched men die in Maryland, in South Carolina and in Florida. I know when it’s time for my client to die. I don’t stand in front of a Court and waste its time.
-20-

 
 UNITED STATES DISTRICT COURT FOR THE DISTWfl ~f~~~~l!i~~D
(SOUTHERN DIVISION) ~~\S1 F.\C r Gt i\t,I~.yLt~"n

STEVEN HOWARD OKEN, Plaintiff, v. FRANK C. SIZER, JR., Commissioner Maryland Division of Correction
WILLIAM WILLIAMS, Warden Maryland Correctional Adjustment Center Baltimore, Maryland GARY HORNBAKER, Warden Metropolitan Transition Center Broad River Correctional Institution, Columbia, South Carolina
and UNKNOWN EXECUTIONERS, Defendants.

1U04 JUN 11 A q: 0'S

)

,-; tiT

) . i,T C:, LT ::: UJ

d'J

r: UT'(

') \ ..

) ) ) ) ) No. _ _ _ __

) ) DEATH WARRANT ) SIGNED ) ) EXECUTION ) IMMINENT ) ) ) EXECUTION ) SCHEDULED FOR ) THE WEEK OF JUNE ) 14 ) ) ) ) )

AMENDED COMPLAINT Facts.
1. Petitioner incorporates all paragraphs contained within the "Complaint" by reference and amends his claim to add as follows:
2. Plaintiff, Steven Howard Oken was and is a drug user.

1

3. Defendants rely on a statement by a certified nursing assistant to claim that venous access will be unnecessary during Plaintiffs execution by lethal injection.
4. Plaintiff currently does not know the level of expertise of the certified nursing assistant who observed Mr. Oken, or does Plaintiff possess any assurances concerning her proficiency to determine venous access.
5. Certified nursing assistants in Maryland typically do not make determinations with respect to the ability to make venous access.
6. Certified nursing assistants in Maryland typically do not establish IV lines. 7. Defendants execution manual utilizes procedures that substantially increase the need for a cut down procedures including:
a. an insufficient number of angiocaths; and, b. an unnecessary restriction on the area of the arm where an IV line may be established. 8. Defendants protocols have no provision for attempting to obtain venous access by hands, arms, or feet. 9. All of the deficiencies and statements made above substantially increase the likelihood that a cut down will be necessary to carry out Plaintiffs execution. 10. Defendants have no protocol for carrying out a cut down. 11. Defendants have no protocol with respect to percutaneous insertion of an IV line.
Claim 12. Plaintiff incorporates paragraphs 1-11 by reference.
2

13. Frank Sizer, William Williams, Gary Hornbaker, and Unknown Executioners in utilizing a cut down procedure during executions by lethal injection.
14. Defendants' deficient protocol increases the likelihood that a cut down procedure will be necessary.
15. Defendants' use of a cut down procedure in light of readily available and viable alternatives violates the Eighth Amendment Cruel and Unusual Punishment Clause.
16. The deficiencies within Defendants Execution Procedures as it pertains to cut down procedures creates a risk of unnecessary infliction of pain that is more than the Eighth Amendment tolerates during an execution.
Prayer for Relief 17. Plaintiff requests that this Court grant a temporary restraining order and a preliminary injunction barring Defendants from executing Plaintiff in the manner they currently intend. 18. Plaintiff incorporates by reference and requests all relief stated in the "Complaint."
3

June 17,2004.

espe tfu{})j Sjlmitted,
tIM -
D WARREN BENNETT MICHAEL E. LAWLOR Bennett & Lawlor, LLP 6301 Ivy Lane, Suite 419 Greenbelt, Maryland 20770- 337 (30 220-1570
illiam Street Ba ·more, Maryland 24510
( ~~:9:>
Df\VID M. BARRONi 1502 Main St. #209 Columbia, South Carolina 29201 (646) 279-6902

i Admitted pro hac vice. 4

State of Maryland

VERIFICATION

County of Prince George

I, Fred Warren Bennett, attorney for Plaintiff in the above-entitled action, being duly sworn,

state that to the best of my knowledge and belief, the facts sets for in this Complaint are true and

knOWledge~~L--_JM_. correct to the best ofmy

-'--_ _ _ _ _ _ _ _ __

Fred Warren Bennett

Subscribed and sworn to me this II!!::.y of June 2004.

MARILYNNE DOS REIS NOTARY PUBLIC STATE OF MARYLAND My Commission Expires March 15, 2005

5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STEVEN HOWARD OKEN,

*

*

Plaintiff

*

*

v.

*

*

FRANK C. SIZER, JR., Commissioner, *

Maryland Division of Correction, et al., *

*

Defendants

*

Civil No. PJM 04-1830

FINAL ORDER OF JUDGMENT
Upon consideration of Plaintiff Steven Howard Oken’s Amended Complaint, Defendants’ verbal opposition thereto, and the argument of counsel conducted by telephone conference in the presence of a court reporter, including the offer of proof/proffer of Plaintiff’s and Defendants’ counsel as to what an evidentiary hearing might reveal, it is this 17th day of June, 2004,
ADJUDGED, ORDERED, AND DECREED: 1) On this record the Court is unable to conclude that Plaintiff has established that
any of the execution procedures complained of by him amount to cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution; 2) The relief sought under the Amended Complaint is therefore DENIED; 3) The case is DISMISSED; 4) Plaintiff’s Motion for Stay is DENIED.

/s/ PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

 
 , F/!._EO

couRT DISfJ TSF.?I[IJ"!IS",r':[,'~!"[,'I"

I >r, U··-) T
"l,' ':\

IN THE UNITED STATES DISTRICT

;-:!\RYLAND

FOR THE DISTRICT OF MARWglf\~ 11 A II: 38

STEVEN HOWARD OKEN,

LtL.T._ (. ,

'\

-1 \ ..

Plaintiff v.

Civil No. PJM 04-1830

FRANK C. SIZER, JR., Commissioner Maryland Division of Corrections, et ai.,

Defendants

1"!-M Pdt fL. An.'1

REQUEST FOR DECLARATORY JUDGMENT, PER1vfANENT INJUNCTION AND CITATION OF CORRECT STANDARD OF PROOF

~

The plaintiff, Steven Howard Oken, through counsel, moves this Court to enter a Declaratory Judgment holding that based on the proof adduced herein, the Maryland Execution Protocol, as applied to Mr. Oken in this case, establishes an Eighth Amendment violation in that an unreasonable risk of a botched execution of the plaintiff exists (a lingering death andlor an unnecessary risk of the infliction of pain). Plaintiff also seeks a speedy and immediate hearing pursuant to Rule 57 of the Federal Rules of Civil Procedure as soon as possible on June 17th, 2004.
Plaintiff respectfully submits that the correct standard of proof in this lawsuit is proof by a preponderance of the evidence and that at the conclusion of all evidence plaintiff will have successfully met his burden of proof. See, Rosenbloom v Metromedia, Inc., 403 US. 29, 50

-1-

(1971); Usher v. United States, 146 F.2d 369, 371 (4th Cir. 1944); Wing v. Britton, 748 F.2d 494, 497 (8th Cir. 1984).

Fred Warren Bennett Michael E. Lawlor Bennett & Lawlor, LLP 6301 Ivy Lane, Suite 419
Ji. N Greenbelt, Maryland 20770
(3~1) 2~=-
erome H. Nickerson,Esq. 1104 Williams Street Baltimore, Md. 24510
n:~~~.~
David M. Barron 1502 Main Street, #209 Columbia, S.C. 29201 (646) 279-6902 (Admitted pro hac vice)

CERTIFICATE OF SERVICE

~ay This is to certify that on thill

of June, 2004, a copy of the foregoing Request

for Declaratory Judgment and Standard of Proof was sent by E-Mail and FAX or by ordinary

mail and/or hand delivered to David Kennedy, Esq., Ann N. Bosse, Esq., Office of the Attorney

General, Criminal Appeal Division, 200 Saint Paul Place, Baltimore, Md. 21202 and Scott S.

Oakley, Esq., Department of Public Safety and Correctional Services, 6776 Reisterstown Road,

Baltimore, Maryland, 21215.

~.

Fred Warren Bennett

-2-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STEVEN HOWARD OKEN,

*

*

Plaintiff

*

*

v.

*

*

FRANK C. SIZER, JR., Commissioner, *

Maryland Division of Correction, et al., *

*

Defendants

*

Civil No. PJM 04-1830

ORDER
Upon consideration of Plaintiff Steven Howard Oken’s Request for Declaratory Judgment, Temporary Injunction, and Citation of Correct Standard of Proof [Paper No. 21], it is this 17th day of June, 2004,
ORDERED: (1) Plaintiff’s Request for Declaratory Judgment, Temporary Injunction, and Citation of Correct Standard of Proof [Paper No. 21] is DENIED.

/s/ PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

 
 District of Maryland (CM/ECF Live 3.0) - Docket Report

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?467239580666342-L_3...

U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:04-cv-01830-PJM

CLOSED

Oken v. Sizer et al Assigned to: Judge Peter J. Messitte Cause: 42:1983 Civil Rights Act Plaintiff Steven Howard Oken
V. Defendant

Date Filed: 06/14/2004 Date Terminated: 06/17/2004 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Fred Warren Bennett Bennett and Blair LLP 6301 Ivy Ln Ste 418 Greenbelt, MD 20770 13012201570 Fax: 13012201577 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David M Barron Law Office of David M Barron 1502 Main St Ste 209 Columbia, SC 29201 16462796902 ATTORNEY TO BE NOTICED
Jerome Howard Nickerson, Jr Law Office of Jerome H Nickerson 1104 William St Baltimore, MD 24510 14105394729 ATTORNEY TO BE NOTICED
Michael Edward Lawlor Lawlor and Englert LLC 6305 Ivy Ln Ste 704 Greenbelt, MD 20770 13014743404 Fax: 13014743406 Email: mlawlor@verizon.net ATTORNEY TO BE NOTICED

1 of 5

9/5/2007 9:26 AM

District of Maryland (CM/ECF Live 3.0) - Docket Report
Frank C. Sizer, Jr. Commissioner, Maryland Division of Correction
Defendant William Williams Warden, Maryland Correctional Adjustment Center
Defendant Gary Hornbaker Warden, Metropolitan Transition Center

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?467239580666342-L_3...
represented by David P Kennedy Office of the Attorney General of Maryland 200 Saint Paul Pl 19th Fl Baltimore, MD 21202-2021 14105766424 Fax: 14105766880 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann N Bosse 4101 Sal Dr Mount Airy, MD 21771 14105497342 Email: anndpkennedy@adelphia.net ATTORNEY TO BE NOTICED
Scott S Oakley Office of the Attorney General of Maryland Dept of Public Safety and Correctional Services Plaza Office Cntr 6776 Reisterstown Rd Ste 313 Baltimore, MD 21215-2341 14105853070 Fax: 14107645366 Email: soakley@dpscs.state.md.us ATTORNEY TO BE NOTICED
represented by David P Kennedy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann N Bosse (See above for address) ATTORNEY TO BE NOTICED
Scott S Oakley (See above for address) ATTORNEY TO BE NOTICED
represented by David P Kennedy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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District of Maryland (CM/ECF Live 3.0) - Docket Report

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?467239580666342-L_3...

Defendant Unknown Executioners

Ann N Bosse (See above for address) ATTORNEY TO BE NOTICED
Scott S Oakley (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/14/2004
06/14/2004 06/14/2004 06/14/2004 06/14/2004 06/14/2004

#

Docket Text

1 COMPLAINT against Gary Hornbaker, Frank C. Sizer Jr., Unknown Executioners, William Williams filed by Steven Howard OkenAttachments: (1) Memorandum in Support of Complaint (2) Civil Cover Sheet (3) Exhibit List Volume 1 (4) Exhibit 1 Volume 1 (5) Exhibit 2 Volume 1 (6) Exhibit 3 Volume 1 (7) Exhibit 4 Volume 1 (8) Exhibit 5 Volume 1 (9) Exhibit 6 Volume 1 (10) Exhibit 7 Volume 1 (11) Exhibit 8 Volume 1 (12) Exhibit 9 Volume 1 Notice of Lengthy Exhibit (13) Errata 10 Volume 1 (14) Exhibit 11 Volume 1 (15) Exhibit 12 Volume 1 Notice of Lengthy Exhibit (16) Exhibit 13 Volume 1 (17) Exhibit 14 Volume 1 (18) Exhibit 15 Volume 1 Notice of Lengthy Exhibit (19) Exhibit 16 Volume 1 Notice of Lengthy Exhibit (20) Exhibit 17 Volume 1 Notice of Lengthy Exhibit (21) Exhibit 18 Volume 1 (22) Exhibit 19 Volume 1 (23) Exhibit 20 Volume 1)(lad3, Deputy Clerk) (Entered: 06/14/2004)
2 EXHIBITS (Volume 2) to Complaint by Steven Howard Oken(Attachments: (1) Exhibit 1 Volume 2 (2) Exhibit 2 Volume 2 (3) Exhibit 3 Volume 2 (4) Exhibit 4 Volume 2 (5) Exhibit 5 Volume 2 (6) Exhibit 6 Volume 2 (7) Exhibit 7 Volume 2 (8) Exhibit 8 Volume 2 (9) Exhibit 9 Volume 2 Notice of Lengthy Exhibit)(lad3, Deputy Clerk) (Entered: 06/14/2004)
3 MOTION for Leave to Proceed in Forma Pauperis by Steven Howard Oken (Attachments: (1) Affidavit in Support of Motion for Leave to Proceed In Forma Pauperis)(lad3, Deputy Clerk) (Entered: 06/14/2004)
4 Defendants' Opposition to Request for Stay of Execution, and MOTION to Dismiss or, in the Alternative, MOTION for Summary Judgment by Gary Hornbaker, Frank C. Sizer Jr., William Williams (Attachments: (1) Memorandum (2) Exhibit A (3) Exhibit B (4) Exhibit C (5) Exhibit D (6) Exhibit E (7) Exhibit F (8) Exhibit G)(lad3, Deputy Clerk) (Entered: 06/14/2004)
5 RESPONSE to Defendant's Opposition to Request for Stay of Execution, and 4 MOTION to Dismiss or, in the Alternative MOTION for Summary Judgment filed by Steven Howard Oken (lad3, Deputy Clerk) (Entered: 06/14/2004)
6 MOTION to Compel Defendants to Immediately Produce Documents and for Production of all Documents Pertaining to the Execution of Plaintiffby Steven Howard Oken(lad3, Deputy Clerk) (Entered: 06/14/2004)

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06/14/2004 06/14/2004 06/14/2004 06/14/2004 06/14/2004 06/14/2004 06/15/2004 06/15/2004 06/15/2004 06/16/2004
06/16/2004
06/16/2004 06/16/2004 06/16/2004 06/16/2004 06/16/2004

7 MOTION for David M. Barron to Appear Pro Hac Vice by Steven Howard Oken. (lad3, Deputy Clerk) (Entered: 06/14/2004)
ORDER granting 7 Motion for David M. Barron to Appear Pro Hac Vice. Signed by Clerk of Court on 6/14/04. (lad3, Deputy Clerk) (Entered: 06/14/2004)
Hearing held on Motion by Plaintiff Steven Oken for Stay of Execution. (esp, Deputy Clerk) (Reporter: Marshall) Modified on 1/12/2006 (esp, Deputy Clerk). (Entered: 06/14/2004)
Argument of counsel. (esp, Deputy Clerk) (Entered: 06/14/2004)
Ruling taken under advisement. (esp, Deputy Clerk) (Entered: 06/14/2004)
11 EXHIBIT List by Steven Howard Oken. (esp, Deputy Clerk) Additional attachment(s) added on 6/15/2004 (lad3, Deputy Clerk). (Entered: 06/15/2004)
8 OPINION. Signed by Judge Peter J. Messitte on 6/14/2004. (lad3, Deputy Clerk) (Entered: 06/15/2004)
9 ORDER "STAYING" the Warrant of Execution of the Circuit Court for Baltimore County pending further Order of this Court. Signed by Judge Peter J. Messitte on 6/14/2004. (lad3, Deputy Clerk) (Entered: 06/15/2004)
10 NOTICE OF APPEAL by Gary Hornbaker, Frank C. Sizer Jr., William Williams. Filing fee $ 255. Appeal Record due by 7/15/2004. (Kennedy, David) (Entered: 06/15/2004)
12 ORDER of USCA "DENYING" The Commissioner of the Maryland Division of Correction and other state officials Motion to vacate the USDC Order staying the execution of Steven H. Oken; as to 10 Notice of Appeal filed by Gary Hornbaker, William Williams, Frank C. Sizer (mlb, Deputy Clerk) Additional attachment(s) added on 6/16/2004 (mlb, Deputy Clerk). (Entered: 06/16/2004)
13 REVISED ORDER of USCA DENYING" The Commissioner of the Maryland Division of Correction and other state officials Motion to vacate the USDC Order staying the execution of Steven H. Oken; as to 10 Notice of Appeal filed by Gary Hornbaker, William Williams, Frank C. Sizer (Attachments: # 1 Letter To Counsel from USCA)(mlb, Deputy Clerk) (Entered: 06/16/2004)
14 TRANSCRIPT of Proceedings held before Messitte, J. on 6/14/04 (ajh, Deputy Clerk) (Entered: 06/17/2004)
15 ORDER Sealing Exhibit 9(A) of Volume 1 (Paper No. 1). Signed by Judge Peter J. Messitte on 6/16/04. (lad3, Deputy Clerk) (Entered: 06/17/2004)
16 ORDER Sealing Exhibit 9 of Volume 2 (Paper No. 2). Signed by Judge Peter J. Messitte on 6/16/2004. (lad3, Deputy Clerk) (Entered: 06/17/2004)
17 ORDER (copy) by Supreme Court of the United States "GRANTING" the Application to Vacate the Stay of Execution (lad3, Deputy Clerk) (Entered: 06/17/2004)
18 ORDER (copy) by the Supreme Court of the United States "DENYING" the Application for Stay of Execution of Sentence of Death and "DENYING the Petition for Writ of Certiorari(lad3, Deputy Clerk) (Entered: 06/17/2004)

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06/17/2004 06/17/2004 06/17/2004 06/17/2004 06/17/2004 06/17/2004 06/17/2004 06/17/2004 06/17/2004 06/17/2004

19 AMENDED COMPLAINT against Gary Hornbaker, Frank C. Sizer Jr., Unknown Executioners, William Williams , filed by Steven Howard Oken.(lad3, Deputy Clerk) (Entered: 06/17/2004)
Motion Hearing held in Chambers re: 19 Amended Complaint before Messitte, J. (Court Reporter: Tracy Dunlap ) (lad3, Deputy Clerk) (Entered: 06/17/2004)
20 Final ORDER of Judgment "Denying" the relief sought under the Amended Complaint, "Dismissing" the case, and "Denying" the Motion to Stay. Signed by Judge Peter J. Messitte on 6/17/2004. (lad3, Deputy Clerk) (Entered: 06/17/2004)
21 Request for Declaratory Judgment, Temporary Injunction and Citation of Correct Standard of Proof by Steven Howard Oken (lad3, Deputy Clerk) (Entered: 06/17/2004)
22 ORDER denying 21 Motion for Declaratory Judgment, denying 21 Motion for Preliminary Injunction. Signed by Judge Peter J. Messitte on 6/17/2004. (lad3, Deputy Clerk) (Entered: 06/17/2004)
23 NOTICE OF APPEAL as to 22 Order on Motion for Declaratory Judgment, Order on Motion for Preliminary Injunction by Steven Howard Oken. (lad3, Deputy Clerk) (Entered: 06/17/2004)
24 ORDER "Sealing" the transcript of the telephone conference held 6/17/04. Signed by Judge Peter J. Messitte on 6/17/2004. (lad3, Deputy Clerk) (Entered: 06/17/2004)
25 TRANSCRIPT of Proceedings held on June 17, 2004 before Judge Messitte. Court Reporter: Tracy Dunlap. (Filed under Seal) (lad3, Deputy Clerk) (Entered: 06/17/2004)
26 ORDER of USCA "DENYING" Motion for Temporary Injunction to Preserve Appellate Jurisdiction as to 23 Notice of Appeal filed by Steven Howard Oken (lad3, Deputy Clerk) (Entered: 06/23/2004)
27 ORDER (copy) by the Supreme Court of the United States "DENYING" the Application for Stay of Execution and "DENYING" the Petition for a Writ of Certiorari on 6/17/2004. (lad3, Deputy Clerk) (Entered: 06/23/2004)

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 ...

FI~D

ENTERED

_ _ _ LODGED_RtC~'\lm

JUN 1 6 2004

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 04-17

AT GAEENHELT

Cl.iRK U.s. DISTRICT COURT

IV

DIITRICT OF WARVI.AND DEPUT'

L'.)"

1.-.1· .~/

,f ~!')

-- d ,_,

!

STEVEN H. OKEN,
Plaintiff - Appellee,
versus
FRANK C. SI ZER, JR., Commissioner, Maryland Division of Correction; WILLIAM WILLIAMS, Warden, Maryland Correctional Adjustment Center; GARY HORNBAKER, Warden, Metropolitan Transition Center,
Defendants - Appellants,
UNKNOWN EXECUTIONERS,
Defendants.

oRDE R

The Commissioner of the Maryland Division of Correction

and other state officials have moved to vacate the district court's

order staying the execution of Steven H. Oken. A panel majority,

Judge Michael and Judge Traxler, vote to deny the motion. Judge

~ !

Wilkinson would vacate the stay of execution.

denied.

The motion to vacate the stay of execution is therefore For the Court

/s/ Patricia S. Connor CLERK

2

 
 JUN,17,2004 9:15AM

NO, 583 p, 3

(ORDER LIST: 542 U.S.)

WEDNESDAY, JUNE 16, 2004

ORDER IN PENDING CASE

03AI023

SIZER, COMM'R, MD DOC, ET AL. V. OKEN, STEVEN H.
The application to vacate the stay of execution of sentence of death entered by the United States District Court for the District of Maryland on June 14, 2004, presented to the Chief Justice and by him referred to the Court, is granted.
Justice Stevens, Justice Ginsburg, and Justice Breyer would deny the application to vacate the stay of execution.

06/17/2004 THU 08: 29 [TXlRX NO 6241] 141 003

 
 JUN,17,2004 9:15AM

NO, 583 p, 2

(ORDER LIST: 542 U.S.)

WEDNESDAY, JUNE 16, 2004

CERTIORARI DENIED

03-10808 (03A1011)

OKEN, STEVEN H. V. MARYLAND
The application for stay of execution of sentence of death presented to the Chief Justice and by him referred to the Court is denied. The petition for a writ of certiorari ;s denied.

06/17/2004 THU 08: 29 [TXlRX NO 6241] ~ 002

 
 STEVEN H. OKEN Plaintiff

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

FILED June 11, 2004

No. 04-18 CA-O4-18;30-PJM

- Appellant

v.
FRANK C. SIZER, JR., Commissioner, Maryland Division of Correction; WILLIAM WILLIAMS, Warden, Maryland Correctional Adjustment Center; GARY HORNBAKER, Warden, Metropolitan Transition Center
Defendants - Appellees

and
UNKNOWN EXECUTIONERS Defendant

oaDBa

Appellant has filed a motion for temporary injunction

to preserve

appellate jurisdiction,

appellees filed a response in opposition to

the motion, and appellant filed a reply to the response.

The Court denies appellant's

motion for termporary injunction

to

preserve appellate jurisdiction. Entered at the direction of Judge Michael with the concurrence of

Judqe Traxler

and Judge Gregory For the court,

Is/ patricia

S Connor

-c1;E~