Case 4:04-cv-01075-CAS Document 1-1 Filed 08/16/2004 Page 1 of 8

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON,
Plaintiff,
vs.
GARY B. KEMPER, Director, Missouri Department of Corrections,
DONALD P. ROPER, Superintendent, Potosi Correctional Center,
4 JAMES PURKETT, Superintendent,
Eastern Reception, Diagnostic and Correctional Center,
and
UNKNOWN EXECUTIONERS,
Defendants.

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AUG 1 6 2004
U. S. DJSTRJCT !ASTERN DISTRICTCOURT
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PLAINTIFF'S ORIGINAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, ATTORNEY'S FEES
AND COSTS OF SUIT PURSUANT TO 42 U.S.C. § 1983

I. Nature of Action

I.

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

violations ofMr. Johnston's right to be free from cruel and unusual punishment under the Eighth and

Fourteenth Amendments to the United States Constitution. Mr. Johnston seeks equitable and

injunctive relief.

2.

In this action, Mr. Johnston claims that defendants' current method of lethal injection

can and will subject him to an unnecessary risk of unconstitutional pain and suffering. No

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government within the United States can intentionally or negligently use an excruciatingly painful, arbitrary, cruel, and unreliable method of execution.

3.

Defendants intend to violate Mr. Johnston's constitutional rights by executing him

with drugs that include a paralyzing agent veterinarians will not use for the euthanasia of cats and

dogs. This paralyzing drug can and will cast a chemical veil over the excruciatingly painful effects

of death by suffocation and heart attack. Defendants' lethal injection protocol includes an unreliable

ultrashort-acting anesthetic that can and will leave Mr. Johnston conscious but trapped in a paralyzed

body racked with pain, suffocation and a heart attack. Defendants intend to execute Mr. Johnston

with unreliable and arbitrary drugs, administered by inadequately trained personnel, who use

inappropriate equipment and arbitrary drugs and methods to cause death by lethal injection.

4.

Mr. Johnston seeks a permanent injunction preventing defendants from executing him

by the means currently employed for carrying out an execution by lethal injection in the State of

Missouri. Mr. Johnston also seeks an Order declaring that defendants' current method for

conducting an execution by lethal injection violates the Eighth and Fourteenth Amendments to the

United States Constitution.

II. Plaintiff

5.

Timothy Johnston is a United States citizen and a resident of the State of Missouri.

He is currently a death-sentenced inmate in the custody of defendants, and under the control and supervision of Missouri Department of Corrections. He is incarcerated at the Potosi Correctional Center, Route 2, Box 2222, Mineral Point, Missouri 63660, with an inmate number ofCP-91.

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III. Defendants

6.

Defendant Gary B. Kemper is the Director ofthe Missouri Department ofCorrections,

a department of the State of Missouri created and maintained pursuant to Chapter 217, Mo.Rev.Stat.

(2000). As such, defendant Kemper is charged and authorized to prescribe and direct the

promulgation of rules and regulations for the Missouri Department of Corrections, including the

rules and regulations for the conduct of prison operations and execution procedures. He is sued

herein in his individual and official capacity for the purpose of obtaining declaratory and injunctive

relief.

7. Defendant Donald P. Roper is the Superintendent of the Potosi Correctional Center located in Mineral Point, Missouri, at which sentences of death have been performed in the State of Missouri. Defendant Roper is charged with the management of the Potosi Correctional Center and the oversight and conduct of operations there, including the oversight and conduct of executions. He is sued in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief.

8. Defendant James Purkett is the Superintendent of the Eastern Reception Diagnostic and Correctional Center located in Bonne Terre, Missouri. Upon information and belief, future executions will be performed at said facility. Defendant Purkett is charged with the management of the Eastern Reception Diagnostic and Correctional Center and the oversight and conduct of operations there, including the oversight and conduct of executions. He is sued in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief.
9. Defendants Unknown Executioners are employed by the Missouri Department of Corrections to make preparations for, and carry out the execution of Mr. Johnston. Mr. Johnston

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does not yet know, and it is his understanding that defendants will not reveal, the identities of these persons. All of said defendants are being sued in the individual and official capacities.
10. Defendants, and each of them at all times relevant hereto, were acting in their respective official capacities with respect to all acts described herein, and were in each instance acting under the color and authority of state law. Upon information and belief, unless permanently enjoined, the defendants intend to act in their respective official capacities and under the authority of state law by executing Mr. Johnston by utilizing lethal injection methods that will violate his constitutional rights.
IV. Jurisdiction and Venue 11. Mr. Johnston brings this action to enforce and protect rights conferred by the Eighth Amendment to the United States Constitution, as incorporated to the states by the Fourteenth Amendment to the United States Constitution. 12. This Court has jurisdiction under 28 U.S. C. § 1331, in that it arises under the Constitution of the United States; under 28 U.S.C. § 1343(a)(3), in that it is brought to redress deprivations, under color of state authority, of rights, privileges, and immunities secured by the United States Constitution; under 28 U.S.C. § 1343(a)(4), in that it seeks to secure equitable relief under an act of Congress, specifically 42 U.S.C. § 1983, which provides a cause of action for the protection of civil rights; under 28 U.S.C. § 2201(a), in that, one purpose of his action is to secure declaratory relief; and under 28 U.S.C. § 2202, in that one purpose of this action is to secure permanent injunctive relief. 13. This Court has venue under 28 U.S.C. § 1391(b)(2) in that the events giving rise to this claim will occur within this judicial district.
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V. Facts 14. Timothy Johnston is sentenced to be put to death by lethal injection. He is awaiting an execution date. Defendants are responsible for carrying out this execution. 15. Upon information and belief, defendants intend to execute Mr. Johnston by employing the same means and method of lethal injection as have been used since Missouri resumed executions in 1989: by poisoning him with a lethal combination of three chemical substances: sodium pentothal, pancuronium bromide (pavulon), and potassium chloride (KC1). 1 16. There is a reasonable likelihood and an unjustifiable risk that this particular combination of chemicals will cause Mr. Johnston to consciously suffer an excruciating painful and protracted death 17. Sodium pentothal is an ultrashort-acting barbiturate which is ordinarily used to render a surgical patient unconscious for mere minutes in the induction phase of anesthesia, specifically so that the patient may re-awaken and breath independently if any complications arise from the insertion of a breathing tube prior to surgery. Because of its brief duration, sodium pentothal may not provide a sedative effect throughout the entire execution process. There is also a probability that the sedative effect of the sodium pentothal is neutralized by the second chemical used, pancuronium bromide. 18. The second chemical involved in the lethal injection process, pancuronium bromide, or pavulon, is a derivative of curare that acts as a neuromuscular blocking agent. While pavulon paralyzes skeletal muscles, including the diaphragm, it has no effect on consciousness or the perception of pain and suffering. To the extent that the first chemical, sodium pentothal, is
1See Lethal Injection Machine Manual, State ofMissouri (October 15, 1988). 5

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neutralized by the second, pavulon, the latter serves only to mask Mr. Johnston's excruciating pain and suffering.
19. The American Veterinary Medicine Association (AVMA) condemns the use of neuromuscular blocking agents such as pavulon in the euthanasia of animals. Since 1981, many states, including Missouri, have made the use ofpancuronium bromide on domestic animals illegal.2 Utilizing methods or chemicals to execute human beings which have been banned for use in euthanizing animals violates contemporary standards of decency.3
20. The third chemical, potassium chloride, stops the prisoner's heart and causes death by cardiac arrest. The administration of potassium chloride is extremely painful because, when administered intravenously, potassium chloride causes a severe burning sensation as it travels from the injection site through the body to the heart.
21. Instead ofproducing a rapid, sustained loss ofconsciousness and humane death, there is an unnecessary and unjustifiable risk that defendants' means and method of lethal injection can and will cause Mr. Johnston to consciously suffer an excruciating painful and protracted death.
2Texas, Tex. Health & Safety Code,§ 821.052(a); 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. 4:221.3 (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). Other states have simply banned such practices. See Illinois, 510 Ill. Comp. Stat., ch. 70, § 2.09; Kansas, Kan. Stat. Ann.§ 47-1718(a); Louisiana, La. Rev. Stat. Ann.§ 3:2465; Missouri, 2 CSR 309.020(F)(5); Rhode Island, R.I. Gen. Laws § 4-1-34, Connecticut, Conn. Gen. Stat. § 22-344a; Delaware, Del. Code Ann., Tit. 3, § 8001; Kentucky, Ky.Rev.Stat. Ann.§ 321.181(17) and 201 KAR 16:090, § 5(1); South Carolina, S.C.Code Ann. § 47-3-420.
3Cf Adkins v. Virginia, 536 U.S. 304, 315 (2002) (Executing those with mental retardation violates contemporary standards reflected in state statutes barring same).
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22. The risk of inflicting severe and unnecessary pain and suffering upon Mr. Johnston in the lethal injection process is particularly grave in Missouri because, upon information and belief, the procedures and protocols designed by defendants do not include safeguards regarding the manner in which the execution is to be carried out, do not establish the minimum qualifications and expertise required of the personnel performing the critical tasks in the lethal injection procedure and do not establish appropriate criteria and standards that these personnel must rely upon in exercising their discretion during the lethal injection procedures.
VI. Claim First Claim: Eighth Amendment Violation 23. Timothy Johnston incorporates all preceding paragraphs as if fully rewritten herein. 24. Defendants, acting individually and under the color and authority of state law will violate Mr. Johnston's constitutional rights to be free from arbitrary, capricious, cruel and unusually painful punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution by executing him under the procedures utilized by the State of Missouri to execute inmates by lethal injection in the past, which are intended for use in the execution of Mr. Johnston.
VII. Prayer for Relief 25. Mr. Johnston requests this Court grant him injunctive relief by granting a permanent injunction barring defendants from executing Mr. Johnston in the manner by which defendants currently intend to execute him, in order to prevent defendants from violating Mr. Johnston's federal constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution. 26. Mr. Johnston requests that this Court grant him declaratory relief by issuing an Order declaring that defendants' current means, methods, practices, procedures, and customs regarding
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execution by lethal injection violate the Eighth and Fourteenth Amendments to the United States Constitution.
27. Mr. Johnston requests that this Court grant him reasonable attorney fees pursuant to 42 U.S.C. § 1988 and the laws of the United States as well as for costs of suit, and such further relief as this Court deems just and proper.
Respectfully submitted,
~~ili:#3~
720 Olive Street, Suite 1630 St. Louis, Missouri 63101 (314) 621-161 7 (314) 621-7448 - Facsimile E-mail: mjgorla@msn.com
C · er E. McG11 ugh, # Leritz, Plunkert & Bruning, P.C. One City Center, Suite 2001 St. Louis, Missouri 63101 (314) 231-9600 (314) 231-9480 - Facsimile E-mail: cmcgraugh@leritzlaw.com Counsel for Plaintiff
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 Case 4:04-cv-01075-CAS Document 8 Filed 11/15/2004 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON, Plaintiff,
v. GARY B. KEMPKER, et al.,
Defendants.

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Cause No. 4:04CV1075 DJS

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DEFENDANTS KEMPKER, ROPER, AND PURKETT’S MOTION TO DISMISS COM E NOW defendants Gary Kempker, Don Roper, and Jim Purkett, by and
through counsel, and move this Court, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), to dismiss plaintiff's Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.
A memorandum of law in support of this motion is filed contemporaneously herewith.
WHEREFORE, defendants Kempker, Roper, and Purkett respectfully request this Court dismiss plaintiff's Complaint against them for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, and grant such other relief as this Court deems just and proper, including the awarding of costs to these defendants.

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Respectfully submitted,
JEREMIAH W. (JAY) NIXON Attorney General
/s/Denise G. McElvein Denise G. McElvein Assistant Attorney General Laclede Gas Building 720 Olive Street, Suite 2150 St. Louis, MO 63101 (314) 340-7861 (telephone) (314) 340-7029 (fax)
/s/Stephen D. Hawke Stephen D. Hawke Assistant Attorney General 1530 Rax Court Jefferson City, MO 65109 (573) 751-3321 (telephone) (573) 751-5391 (fax)
CERTIFICATE OF SERVICE
A copy of the foregoing was served in accordance with this Court’s electronic filing procedures this 15th day of November, 2004 to:
Michael J. Gorla 720 Olive Street, Suite 1630 St. Louis, Missouri 63101
Christopher E. McGraugh Leritz, Plunkert & Bruning, P.C. One City Center, Suite 2001 St. Louis, Missouri 63101
/s/Denise G. McElvein

 
 Case 4:04-cv-01075-CAS Document 9 Filed 11/15/2004 Page 1 of 14

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON, Plaintiff,
v. GARY B. KEMPKER, et al.,
Defendants.

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Cause No. 4:04CV1075 DJS

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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

Defendants Kempker, Roper, and Purkett, by and through their attorneys, submit the

following Memorandum of Law in support of their motion to dismiss.

Background

Plaintiff Timothy Johnston is a capital punishment inmate at the Potosi

Correctional Center (PCC) in Mineral Point, Missouri. (Complaint (Cmpl) ¶ 5). Plaintiff

was convicted of capital murder for the brutal beating death of his wife in 1989 and a jury

sentenced him to death. The facts underlying his conviction are discussed in State v.

Johnston, 957 S.W.2d 734, 739 (Mo. en banc 1997), cert. denied, 522 U.S. 1150 (1998).

Plaintiff sought and was denied relief both on direct appeal and in his state postconviction

proceedings. Id. Next, plaintiff sought and was denied federal habeas corpus relief

challenging his conviction and resulting death sentence. Johnston v. Bowersox, 119

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F.Supp.2d 971 (E.D.Mo 2000). After this Court denied plaintiff’s petition for writ of habeas corpus relief, plaintiff sought and was granted from the Eighth Circuit a certificate of appealability. The Eighth Circuit affirmed this Court’s denial of the habeas petition. Johnston v. Luebbers, 288 F.3d 1048 (8th Cir. 2002). Plaintiff awaits the Missouri Supreme Court’s setting of his date for execution by lethal injection. (Cmpl. ¶ 14).
This suit is brought under 42 U.S.C. § 1983 seeking declaratory and injunctive relief that Missouri’s method of lethal injection violates plaintiff’s Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment. Plaintiff seeks permanent injunctive relief barring his execution. (Cmpl. ¶¶ 25, 26).
In addition to the “Unknown Executioners” named as defendants, plaintiff names the Director of the Missouri Department of Corrections, Gary Kempker, the Superintendent of PCC, Don Roper, and the Superintendent of the Eastern Reception and Diagnostic Center, James Purkett, as defendants alleging that they are responsible for the carrying out of his execution by lethal injection. Defendants assert that this Court lacks jurisdiction over plaintiff’s § 1983 action and that plaintiff fails to state a claim for which relief can be granted.
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LEGAL STANDARD The Complaint has not established this Court’s jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) nor does it state a claim for relief pursuant to Federal Rule of Civil Procedure 12(b)(6). The issue on a motion to dismiss for failure to state a claim is not whether a plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence in support of his or her claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir. 1989). In considering this motion to dismiss under Rule 12(b)(6), the court must assume that all facts alleged in the plaintiff’s complaint are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Viewing the allegations in the light most favorable to plaintiff, this Court lacks jurisdiction to consider plaintiff’s 42 U.S.C. § 1983 claims and the Complaint fails to state a claim for Eighth and Fourteenth Amendment rights violation.
ARGUMENT I. This Court lacks jurisdiction over plaintiff’s § 1983 claim challenging lethal
injection because this type of claim should have been raised in his federal habeas petition. The complaint should be dismissed for lack of jurisdiction because 42 U.S.C. § 1983 is not an appropriate vehicle to challenge the method of execution and plaintiff could have litigated this issue in his earlier habeas corpus action. This § 1983 challenge to lethal injection is the “functional equivalent” of a successive habeas petition. Fugate v.
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Dep’t of Corrections, 301 F.3d 1287, 1288 (11th Cir. 2002). Plaintiff makes no showing of cause for his failure to raise this issue in the prior habeas petition. Thus, 28 U.S.C. §2244(b)(2) bars habeas review of plaintiff’s claims.
A state prisoner may not obtain equitable relief under section 1983 when the federal habeas corpus statute is the exclusive remedial mechanism for obtaining the relief requested. Preiser v. Rodriguez, 411 U.S. 475, 487-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). When a 1983 action involves a challenged to an inmate’s sentence it must be raised by a habeas action. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). A “challenge to the manner of execution is a challenge seeking to interfere with the sentence itself, and thus, is properly construed as a petition for habeas corpus.” In re Sapp, 118 F.3d 460, 462 (6th Cir. 1997), cert. denied sub nom. McQueen v. Sapp, 521 U.S. 1130 (1997); accord William v. Hopkins, 130 F.3d 333, 336 (8th Cir. 1997), cert. denied, 522 U.S. 1010 (1997); Felker v. Turpin, 101 F.3d 95, 96 (12th Cir. 1996), cert. denied, 519 U.S. 989 (1996); Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997)(Section 1983 challenge to constitutionality of electrocution “functional equivalent” of habeas petition, subject to procedural requirements governing second or successive habeas petitions); but see Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996), vacated, Gomez v. Fierro, 519 U.S. 918, 112 S.Ct. 285, 136 L.Ed.2d 204 (1996)(permitting challenge to method of execution under § 1983). Challenging the method of the imposition of the sentence of death constitutes a successive application for habeas relief. See Harvey v. Horan, 278 F.3d 370,
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374-80 (4th Cir. 2002); Buchanan v. Gilmore, 139 F.3d 982, 983-84 (4th Cir. 1998). The provisions in AEDPA limiting multiple rounds of post-conviction appeals by inmates sentenced to death in federal courts requires plaintiff to obtain the authorization of the Eighth Circuit Court of Appeals before a successive habeas petition could filed in this Court. 28 U.S.C. § 2244(b)(3)(A). The Court of Appeals performs the gatekeeper function in cases such as plaintiff’s and would not under AEDPA, grant authorization for the filing a successive habeas petition challenging the implementation of a particular method of execution as successive petitions are limited to guilt phase issues. See 28 U.S.C. § 2254(b)(2)(B)(ii). Thus, plaintiff cannot bring a successive petition challenging the method of his execution. Greenawalt v. Stewart, 105 F.3d 1268, 1287 (9th Cir. 1997).
Even if AEDPA’s restrictions on successive petitions do not strictly govern plaintiff’s pending case, those provisions direct this Court’s review of plaintiff’s belated demand for extraordinary and equitable relief. Notably, the Supreme Court has held that even though a federal court considers a motion or action that is not subject to the restrictions of AEDPA, those provisions still “‘certainly inform [its] consideration’ of whether the Court of Appeals abused its discretion.” Calderon v. Thompson, 523 U.S. 538, 558, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).
As a successive habeas petition, plaintiff’s request for injunctive relief may be granted only “when there are ‘substantial grounds’ upon which relief might be granted.” Bowersox v. Williams, 517 U.S. 345, 346, 116 S.Ct. 1312, 1234 L.Ed. 2d 494 (1996).
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Plaintiff’s claims must be dismissed because it meets neither the requirement for a successive habeas or for declaratory injunctive relief under § 1983.
The traditional standard for injunctive relief places the burden on plaintiff to establish the threat of irreparable harm; the balance between the harm and the injury that granting the injunction will inflict on other parties; the probability of plaintiff’s success on the merits and the public interest. Sandborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 485-86 (8th Cir. 1993); Dataphase Systems v. C.L. System, Inc., 640 F.2d 109, 113 (8th Cir. 1981). “[A] request for injunctive relief must always be viewed with great caution because ‘judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration.’” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995)(quoting Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)). Because this traditional standard for interim injunctive relief must be viewed in light of AEDPA, it is clear that the balance cannot tip on plaintiff’s favor. Plaintiff’s guilt and punishment have been the subject of years of litigation since the 1989 brutal murder of his wife. Permitting plaintiff to bring this § 1983 claim creates further delay and subverts Congress’s efforts to achieve meaningful reform of the process by which federal courts review state capital judgments.
Legal challenges to lethal injection are not new so plaintiff could have brought his challenge long before now. For instance, challenges to lethal injections have been raised and rejected for almost two decades. See Heckler v. Chaney, 470 U.S. 821, 823, 105
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S.Ct. 1649, 84 L.Ed.2d 714 (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, 697-698, cert. denied, 478 U.S. 1032, 107 S.Ct. 15, 92 L.Ed.2d 769 (1986) (5th Cir. 1986)(claims administration of sodium thiopental by untrained personnel in improper dosage violates the Eighth Amendment); State v. Moen, 309 Or. 45, 786 P.2d 111, 143 (1990)(claim 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 (Del. 1994)(claim that state’s procedures for lethal injection unconstitutional by failing to provide appropriate selection and training of person administering lethal injection); State v. Hinchey, 890 P.2d 602 (Ariz. 1995)(lethal injection allegedly unconstitutional because if carried out incorrectly it could be painful); State v. Webb., 252 Conn. 128, 138, 750 A.2d 448 (2000), cert. denied, 531 U.S. 835, 121 S.Ct. 93, 148 L.Ed.2d 53 (claim lethal injection creates a “high risk” inmate will experience “excruciating pain” because execution protocol does not ensure sufficient amount of thiopental sodium will be administered to render inmate unconscious); Sims v. State, 754 So.2d 657 (Fla. 2000), cert. denied, 528 U.S. 1183, 120 S.Ct. 1233, 145 L.Ed.2d 1112 (claim of lack of specific guidelines controlling the dosage, sequence, and delivery rates of lethal chemicals violates Eighth Amendment). Despite nearly two decades of legal precedent identifying challenges made to lethal injection,
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plaintiff failed to raise any challenge to it in either state or federal court until now. The equities in this case undeniably favor the State. 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. at 555. In addressing the compelling state interest in finality, the Supreme Court said:
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. (citation omitted) To unsettle these expectations is to inflict a profound injury to the ‘powerful and legitimate interest in punishing the guilty,’ (citation omitted), an interest shared by the State and the victims of crime alike. 523 U.S. at 556. Additionally, Nelson v. Campbell, ___ U.S. ___, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), does not hold that claims such as plaintiff’s may be brought as a § 1983 claim. In Nelson, the inmate suffered from a unique medical condition because Nelson’s intravenous drug use had damaged his veins. Alabama officials proposed that a “cutdown” procedure would be necessary to carry out Nelson’s execution. The “cut down” procedure required an incision into Nelson’s arm or leg to access his veins. 124 S.Ct. at 2120. Thus, in his § 1983 action, Nelson was challenging the constitutionality of the procedure if it was used to gain access to his veins. 124 S.Ct. at 2123. In contrast, plaintiff makes a generic attack on Missouri’s lethal injection of the kind that could be raised by any inmate awaiting execution in Missouri at any time. Plaintiff’s very different
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circumstances defeat any suggestion that the merits of his claim are affected by the decision in Nelson because the relief sought in Nelson was an alternative to the cut down procedure for Nelson’s lethal injection. Here, plaintiff’s relief is a bar to his execution. (Cmpl. ¶ ¶ 25-26). This interpretation is supported by the Tenth Circuit’s decision in Bryan v. Mullin, 100 Fed.Appx. 801 (10th Cir. 2004). Bryan asserted that under Nelson he was entitled to seek an injunction barring his execution under 42 U.S.C. § 1983. The district court considered his case on the merits and dismissed it. The Tenth Circuit vacated the district court’s order denying Bryan’s complaint on the merits. The Tenth Circuit ruled that the district court lacked jurisdiction because the § 1983 complaint was a successive habeas petition. Id. at 802. The court stated that “[b]ecause Bryan is challenging the fact of his execution, as opposed to the narrow method in which is execution will be effecuated as in Nelson, he must proceed under § 2254. Id. at 803. See Robinson v. Crosby, 358 F.3d 1281, 1285 (11th Cir. 2004)(Robinson’s complaint was functional equivalent of a successive habeas petition because Robinson’s § 1983 complaint challenged the constitutionality of his execution by lethal injection and sought to avoid entirely execution by lethal injection).
Plaintiff brutally killed his wife fifteen years ago in 1989 and his rights have been the focus of litigation since then in which the fairness of his trial and validity of his conviction and sentence have been examined and repeatedly upheld in state and federal court. If plaintiff had genuine issues concerning lethal injection, he would have sought
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relief from this Court long before 2004. The filing of this lawsuit is an attempt to delay the carrying out of his execution. II. Lethal injection does not violate the Eighth Amendment.
Plaintiff’s application for declaratory and injunctive relief should also be denied because his civil rights complaint is patently without merit. The assertion that plaintiff will suffer an excruciatingly painful death rests on plaintiff’s own speculations.
The Eighth Amendment prohibits punishments that involve “‘unnecessary and wanton inflictions of pain.’” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). It also prohibit those 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, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). Any punishment must be consistent with human dignity and comply with current civilized standards. Trop, 356 U.S. at 100-01.
Of the states that impose the death penalty, most use lethal injection either as the sole means of execution or as a possible option at the election of the inmate. Missouri is among 37 of the 38 states with the death penalty that use lethal injection as a method of execution. See Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th Cir. 2004). “There is general agreement that lethal injection is at present the most humane type of execution available and many states have abandoned other forms of execution if favor of lethal
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Case 4:04-cv-01075-CAS Document 9 Filed 11/15/2004 Page 11 of 14
injection.” Hill v. Lockhart, 791 F.Supp. 1388 (E.D. Ark. 1992). See LaGrand v. Lewis, 883 F.Supp. 469, 471 (D.Ariz. 1995)(citing cases that have affirmed the constitutionality of lethal injection.) Moreover, medical experts have urged that death by lethal injection is the most humane of any method of execution. See People v. Stewart, 520 N.E.2d 348, 358, cert. denied, 488 U.S. 900 (1988).
Finally, in Sims v. State of Florida, 754 S.2d 657 (Fla. 2000), the Florida Supreme Court considered an Eighth Amendment challenge to the use of sodium pentothal during the lethal injection. The court stated that the argument centered around “what may happen if something goes wrong,” but the court concluded that “the list of horribles that could happen if a mishap occurs during the execution does not sufficiently demonstrate that the procedures currently in place are not adequate to accomplish the intended result in a painless manner . . . . Sims has not shown that the DOC procedures will subject him to pain or degradation if carried out as planned.” Id. at 667-668. Thus, the court concluded that Florida’s method of lethal injection did not violate the Eighth Amendment. Finally, like Missouri’s method of lethal injection, the State of California uses two of the same chemicals: sodium pentothal and pancuronium bromide. The use of these chemicals has been upheld as constitutional. Cooper, 379 F.3d at 1032. Thus, plaintiff’s speculation concerning lethal injection fails to make the case that Missouri’s method of lethal injection violates the Eighth Amendment.
11

Case 4:04-cv-01075-CAS Document 9 Filed 11/15/2004 Page 12 of 14
III. Lethal injection does not violate due process. Plaintiff claims that Missouri’s lethal injection method violates his due process
rights. (Cmpl. ¶ ¶ 4, 24-26). As the United States Supreme Court has held: [I]f a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.
United States v. Lanier, 520 U.S. 259, 272, 117 S.Ct. 1219, 137 L.Ed.2d 432, n. 7 (1997). Even if plaintiff’s complaint is analyzed under Fourteenth Amendment principles,
the result would not be different. While the Due Process Clause protects citizens against arbitrary government action, “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’” County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). As the Supreme Court made clear: “[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officers is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 847. Here, plaintiff fails to show conduct that shocks the conscience of contemporary society. IV. Plaintiff fails to show exhaustion of administrative remedies.
The Complaint is also subject to dismissal because plaintiff failed to allege in his Complaint under 42 U.S.C. § 1983, that he has exhausted his administrative remedies as required by the Prison Litigation Reform Act (PLRA). 42 U.S.C. § 1997(e)(a). The
12

Case 4:04-cv-01075-CAS Document 9 Filed 11/15/2004 Page 13 of 14
PLRA requires that “[n]o action shall be brought with respect to prison conditions under
section 1983 . . . until such administrative remedies as are available are exhausted.” §
1997e(a). This Circuit has held that in the absence of proof of exhaustion, dismissal is appropriate. McAlphin v. Morgan, 216 F.3d 680, 682 (8th Cir. 2000).
Conclusion
Plaintiff’s Complaint has not established this Court’s jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) nor does it state a claim for relief pursuant to
Federal Rule of Civil Procedure 12(b)(6). Defendants Kempker, Roper, and Purkett
request that this Court dismiss each and every claim with prejudice, assess costs against
plaintiff, and grant such other relief as the Court deems just and proper.
Respectfully submitted,
JEREMIAH W. (JAY) NIXON Attorney General
/s/Denise G. McElvein Denise G. McElvein Assistant Attorney General 720 Olive Street, Suite 2150 St. Louis, MO 63101 (314) 340-7861 (telephone) (314) 340-7029 (fax)
/s/Stephen D. Hawke Stephen D. Hawke Assistant Attorney General 1530 Rax Court Jefferson City, MO 65109 (573) 751-3321 (telephone) (573) 751-5391 (fax)
13

Case 4:04-cv-01075-CAS Document 9 Filed 11/15/2004 Page 14 of 14
CERTIFICATE OF SERVICE A copy of the foregoing was served in accordance with this Court’s electronic filing procedures this 15th day of November, 2004 to:
Michael J. Gorla 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 Christopher E. McGraugh Leritz, Plunkert & Bruning, P.C. One City Center, Suite 2001 St. Louis, Missouri 63101
/s/Denise G. McElvein
14

 
 Case 4:04-cv-01075-CAS Document 26 Filed 04/28/2005 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON, Plaintiff,
vs. GARY B. KEMPKER, et al.,
Defendants.

)

)

)

)

)

Case No. 4:04CV1075 DJS

)

)

)

)

MOTION FOR SUBSTITUTION OF PARTY UNDER FED.R.CIV.P. 25(d)

COMES NOW plaintiff, Timothy Johnston, by and through counsel, Michael J. Gorla and

Christopher E. McGraugh, and pursuant to Fed.R.Civ.P. 25(d), moves to substitute Larry Crawford

as a named party in place of Gary B. Kempker. In support of this motion, plaintiff states as follows:

1. At the time this suit was filed, defendant Gary B. Kempker was the Director of the

Missouri Department of Corrections.

2. Defendant Kempker was a named party to this action in his official capacity as the

Director of Missouri Department of Corrections.

3. As of January 13, 2005, defendant Kemper is no longer the Director of the Missouri

Department of Corrections.

4. Plaintiff has learned that Larry Crawford is now the Director of the Missouri

Department of Corrections.

5. Under Fed.R.Civ.P. 25(d)(1), “When a public officer is a party to an action in an

official capacity and during his pendency dies, resigns or otherwise ceases to hold office, the action

does not abate and the officer’s successor is automatically substituted as a party.”

Case 4:04-cv-01075-CAS Document 26 Filed 04/28/2005 Page 2 of 3

6. Given that defendant Kempker was sued in his official capacity as the Director of the Missouri Department of Corrections, that defendant Kempker is no longer the Director, and that Larry Crawford is now the Director of the Missouri Department of Corrections, plaintiff requests that this Court enter an order of substitution pursuant to Fed.R.Civ.P. 25(d)(1) substituting Larry Crawford, in his official capacity as the Director of the Missouri Department of Corrections, as a party defendant for the former Director and previously named party defendant Gary B. Kempker.
WHEREFORE, for each and all of the foregoing reasons, plaintiff requests that an order of substitution be entered substituting Larry Crawford, the current Director of the Missouri Department of Corrections, as a party defendant in lieu of original defendant Gary B. Kempker, the former Director of the Missouri Department of Corrections.
Respectfully submitted,

Christopher E. McGraugh, #25278 Leritz, Plunkert & Bruning, P.C. One City Center, Suite 2001 St. Louis, Missouri 63101 (314) 231-9600 (314) 231-9480 - Facsimile E-mail: cmcgraugh@leritzlaw.com

/s/ Michael J. Gorla MICHAEL J. GORLA, #3251 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 (314) 621-1617 (314) 621-7448 - Facsimile E-mail: mjgorla@msn.com
Counsel for Plaintiff

2

Case 4:04-cv-01075-CAS Document 26 Filed 04/28/2005 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on April 28, 2005, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court’s electronic filing system upon the following: Ms. Denise G. McElvin, Assistant Attorney General, Attorney for Defendants Kempker, Roper, and Purkett, Wainwright State Office Building, 111 N. 7th Street, Suite 934, St. Louis, Missouri 63101; I hereby certify that on April 28, 2005, the foregoing was mailed by United States Postal Service to the following non-participants in Electronic Case Filing: Mr. Stephen D. Hawke, Assistant Attorney General, 1530 Rax Court, Jefferson City, Missouri 65109.
/s/Michael J. Gorla MICHAEL J. GORLA, #3251 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 (314) 621-1617 (314) 621-7448 - Facsimile E-mail: mjgorla@msn.com
3

 
 Case 4:04-cv-01075-CAS Document 33 Filed 06/13/2005 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON,

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)

Plaintiff,

)

)

vs.

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No. 4:04CV1075-DJS

)

LARRY CRAWFORD,

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DONALD P. ROPER,

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JAMES PURKETT, and

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UNKNOWN EXECUTIONERS,

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Defendants.

)

ORDER

Plaintiff Timothy Johnston is a Missouri inmate under a sentence of death. His complaint in this matter is brought pursuant to 42 U.S.C. §1983, and alleges that Missouri’s current method of lethal injection violates the Eighth Amendment’s ban on cruel and unusual punishment because it “can and will subject him to an unnecessary risk of unconstitutional pain and suffering.” Complaint [Doc. #1], ¶2, p.1. More specifically, plaintiff alleges that the three-chemical sequence and the method of their use by inadequately trained personnel create an unjustifiable likelihood that during his execution plaintiff will be conscious of the pain of chemically-induced suffocation and heart attack, but incapable

Case 4:04-cv-01075-CAS Document 33 Filed 06/13/2005 Page 2 of 10
of demonstrating that consciousness due to chemically-induced
paralysis.1
Defendants Kempker, Roper and Purkett have moved for
dismissal, arguing that the Court lacks jurisdiction because
plaintiff’s claim is not cognizable under §1983 but is instead a
successive habeas corpus claim in disguise, for which leave to file
has not been granted plaintiff by the Court of Appeals as required
by 28 U.S.C. §2244(b)(3).2 The scope of habeas petitions brought
pursuant to 28 U.S.C. §2254 by state prisoners is defined in
subsection (a):
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
Plaintiff’s complaint in this matter does not allege that his
conviction was obtained or his death sentence imposed in violation
1 Defendants appear also to construe the complaint as alleging that Missouri’s method of execution violates the due process clause. The Court does not so interpret the complaint’s references to the Fourteenth Amendment, believing instead that the amendment is cited only for its role in making the prohibitions of the Eighth Amendment applicable to the states as well as the federal government.
2 Movants also cite §2244(b)(2) and argue that plaintiff has not shown cause for his failure to raise the issue in his prior federal habeas petition. This would be an issue for the Court of Appeals in determining whether or not to grant leave for the filing of a successive habeas petition. If plaintiff’s claim is properly characterized as a ground for habeas relief, it would be subject to dismissal for lack of leave to file a successive petition. For these reasons, the §2244(b)(2) argument need not be addressed by this Court.
2

Case 4:04-cv-01075-CAS Document 33 Filed 06/13/2005 Page 3 of 10
of federal law. Instead “he seeks a permanent injunction preventing defendants from executing him by the means currently employed for carrying out an execution by lethal injection in the State of Missouri.” Complaint [Doc. #1], ¶4 at 2 (emphasis added).
In May 2004, the Supreme Court decided Nelson v. Campbell, 541 U.S. 637 (2004). Nelson, a death row inmate in Alabama, brought a §1983 action asserting an Eighth Amendment challenge to the “cut-down” procedure to be used to access his drug-abuse-compromised veins for purposes of his execution by lethal injection. The Supreme Court rejected Alabama’s contention that Nelson’s claim sounded in habeas, based largely on the Supreme Court’s determination that the challenge to the cut-down procedure would not “necessarily prevent Alabama from carrying out its execution.” Id. at 2125. The court noted that “[m]erely labeling something as part of an execution procedure is insufficient to insulate it from a §1983 attack.” Id. at 2123. That state statute did not mandate the challenged procedure, and that Nelson’s challenge allowed alternatives to it, factored into the determination that Nelson’s claim did not fall within the core of federal habeas corpus. Id. at 2124.
In Reid v. Johnson, 105 Fed.Appx. 500, 2004 WL 1730317 (4th Cir. 2004), decided in August 2004 after Nelson, the Fourth Circuit considered a death row inmate’s §1983 action challenging Virginia’s method of lethal injection on Eighth Amendment grounds
3

Case 4:04-cv-01075-CAS Document 33 Filed 06/13/2005 Page 4 of 10
analogous to those asserted here. Reid alleged that Virginia’s combination of sodium thiopental or sodium pentothal, pancuronium bromide or Pavulon, and potassium chloride would cause him to consciously suffer an excruciatingly painful and protracted death.3 The district court had construed the action as presenting a habeas claim and dismissed it for lack of leave to file a successive petition. The Fourth Circuit concluded that, “[i]n light of Nelson,...Reid has stated a cognizable claim under §1983,” because Reid challenged Virginia’s particular protocol for lethal injection, not lethal injection generally. Id. at 503. The court also noted that, because the protocol appeared to be a matter only of Department of Corrections policy, rather than of state statute or regulation, “Reid’s challenge to the protocol does not implicate the validity of his death sentence.” Id.
Even more recently, the Supreme Court decided Wilkinson v. Dotson, 125 S.Ct. 1242, 2005 WL 516415 (March 7, 2005), in which it concluded that two state prisoners could bring an action under §1983 to challenge Ohio’s state parole procedures as violative of the U.S. Constitution. The Supreme Court found that the claims did not fall within the “implicit habeas exception” because the prisoners did not seek injunctive relief ordering immediate or speedier release and because a judgment in their favor would not
3 The complaint in the case at bar identifies Missouri’s lethal injection method as also employing sodium pentothal, pancuronium bromide (Pavulon) and potassium chloride. Complaint [Doc. #1], ¶15 at 5.
4

Case 4:04-cv-01075-CAS Document 33 Filed 06/13/2005 Page 5 of 10
necessarily imply the invalidity of either their convictions or their sentences. Id. at 1248.
Guided by these precedents, the Court concludes that plaintiff’s claim is properly brought under §1983 and need not be construed as a habeas claim. The claim does not assert the unconstitutionality of lethal injection as a method of execution generally. As in Nelson and Reid, the challenged protocol does not appear to be prescribed by state law, and the success of the challenge would not necessarily prevent Missouri from carrying out plaintiff’s execution by a different protocol for lethal injection. As in Dotson, a judgment in plaintiff’s favor would not necessarily imply the invalidity of Johnston’s conviction or sentence. Neither would the relief plaintiff seeks bar his execution altogether.
The Court’s conclusion is supported by the Nelson, Reid, and Dotson decisions of 2004 and 2005. The Court is not persuaded that the Eighth Circuit’s older decision in Williams v. Hopkins, 130 F.3d 333 (8th Cir. 1997), requires a different result, given the Eighth Circuit’s focus there on Williams’ challenge to the constitutionality of death by electrocution in general and on the last-minute timing of the action. To the extent the Eighth Circuit there also rejected Williams’ challenge to the constitutionality of the particular method by which Nebraska allegedly administered the electrical current, the ruling may not survive Nelson and Dotson.
5

Case 4:04-cv-01075-CAS Document 33 Filed 06/13/2005 Page 6 of 10
Second, movants argue that dismissal is appropriate because plaintiff’s complaint is “patently without merit.” Memo. [Doc. #9], p.10. Movants cite decisions rejecting other types of challenges to lethal injection. These decisions are not controlling and do not support dismissal pursuant to the standard of Fed.R.Civ.P. 12(b)(6). A complaint should not be dismissed unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hungate v. United States, 626 F.2d 60, 62 (8th Cir. 1981). Plaintiff’s allegations are not frivolous on their face, and if true, are not shown by the distinguishable decisions defendants cite to be incapable of meriting relief. Similarly, defendants’ arguments based on the traditional standards for preliminary injunctive relief, and concerning the “equities” of granting an injunction, are unavailing at the motion-to-dismiss stage where the merits of plaintiff’s prayer for a permanent injunction are not properly before the Court.
Third, movants argue that plaintiff’s §1983 claim is subject to dismissal “because plaintiff failed to allege in his Complaint” that he has exhausted administrative prison remedies as movants contend is required by 42 U.S.C. §1997(e)(a). This represents a misunderstanding of the exhaustion requirement of the Prison Litigation Reform Act (“PLRA”). “The PLRA’s exhaustion requirement is not a heightened pleading requirement. This circuit
6

Case 4:04-cv-01075-CAS Document 33 Filed 06/13/2005 Page 7 of 10
considers the PLRA’s exhaustion requirement to be an affirmative defense that the defendant has the burden to plead and to prove.” Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005), citing Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) and Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001). Therefore, plaintiff “was under no obligation to plead exhaustion in his complaint.” Nerness, 401 F.3d at 876.
Movants have limited their exhaustion argument to the pleading issue rejected above. The argument is summarily made with no recitation, discussion or analysis of plaintiff’s actual exhaustion efforts. In response, plaintiff contends that the exhaustion requirement is inapplicable to his claim because the Department of Corrections has itself declared that the issue is not grievable via the available prison administrative process. Plaintiff’s contention is predicated on the rejection of his Informal Resolution Request, the first stage of the grievance process, on the stated ground that “[t]his is a non-grievable issue per D5-3.2" of the Department of Corrections Manual. The Court notes that movants fail in their reply memorandum to respond to plaintiff’s argument or to otherwise address the issue of exhaustion, and that movants may therefore have abandoned the issue, at least insofar as their motion to dismiss is concerned.
Next, the Court notes that in their reply in support of the motion to dismiss, defendant raise for the first time the
7

Case 4:04-cv-01075-CAS Document 33 Filed 06/13/2005 Page 8 of 10
argument that plaintiff’s claim under §1983 is barred by the statute of limitations. Such an argument is not properly presented in a reply, and the Court declines to address the issue so presented.
Finally, in a supplemental memorandum which movants were granted leave to file and to which plaintiff was invited to respond, movants argue that the named defendants are not proper parties to the action. The substitution of Larry Crawford for Gary Kempker to reflect the change in the Directorship of the Department of Corrections is requested in plaintiff’s unopposed motion for substitution, and is proper (indeed, automatic) pursuant to Fed.R.Civ.P. 25(d). Plaintiff’s motion will be granted and the substitution formally ordered. As for defendants Roper and Purkett, Superintendents of the Potosi Correctional Center and Eastern Reception, Diagnostic and Correction Center respectively, movants argue that they are not proper parties because, by statute, the Director of the Department of Corrections is responsible for the supervision and direction of executions. Plaintiff responds that the superintendents are properly named as they manage and conduct the operations of the Missouri facilities at which executions have been conducted.
The complaint names each of these defendants “in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief.” Complaint [Doc. #1], ¶¶6-8 at 3. The injunction sought would “bar[] defendants from executing
8

Case 4:04-cv-01075-CAS Document 33 Filed 06/13/2005 Page 9 of 10
Mr. Johnston in the manner by which defendants currently intend to execute him.” Id. at ¶25, p.7. The declaration sought would “declar[e] that defendants’ current means, methods, practices, procedures, and customs regarding execution by lethal injection violate the Eight and Fourteenth Amendments[.]” Id. at ¶26, pp.78. Although the Director of the Department of Corrections may have ultimate authority over the carrying out of executions, movants fail to demonstrate that the named superintendents do not have a significant supervisory role with respect to executions in Missouri.
Defendants rely upon the summary judgment order in Rice v. Kempker, 4:02CV1213-RWS, but that case is not shown to be analogous. Even assuming that declaratory and injunctive relief were there at issue, rather than money damages, the relief sought would have compelled a particular decision admittedly only within the Director’s authority. Here, the relief sought is negative, rather than positive, to forbid an occurrence in which any of the three movants might have a supervisory role. The Court is not persuaded by the brief treatment of the issue that an injunction or declaration directed to the superintendents would be “ineffectual,” as movants suggest.
For all the foregoing reasons, the motion to dismiss will be denied.
Accordingly,
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Case 4:04-cv-01075-CAS Document 33 Filed 06/13/2005 Page 10 of 10
IT IS HEREBY ORDERED that the motion to dismiss of defendants Kempker, Roper and Purkett [Doc. #8] is denied.
IT IS FURTHER ORDERED that plaintiff’s unopposed motion for substitution of party under Fed.R.Civ.P. 25(d) [Doc. #26] is granted.
IT IS FURTHER ORDERED that, as the current Director of the Missouri Department of Corrections, Larry Crawford is substituted in place of Gary B. Kempker as party-defendant. The Clerk shall reflect the substitution on the docket, and the parties shall henceforth reflect the substitution in the caption of the case. Dated this 13th day of June, 2005.
/s/ Donald J. Stohr UNITED STATES DISTRICT JUDGE
10

 
 Case 4:04-cv-01075-CAS Document 39 Filed 06/30/2005 Page 1 of 9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON, Plaintiff,
v. LARRY CRAWFORD, et al.,
Defendants.

)

)

)

)

)

Cause No. 4:04CV1075 DJS

)

)

)

)

DEFENDANTS' ANSWER TO PLAINTIFF’S COMPLAINT Defendants Crawford, Roper, and Purkett by and through counsel, and submit the following as their answer to plaintiff’s Complaint.
I. Nature of Action 1. Defendants admit that this Court has jurisdiction over cases filed under 42 U.S.C. § 1983, and that plaintiff has brought claims under this statute seeking equitable and injunctive relief but deny that plaintiff has stated a claim thereunder. 2. This paragraph contains allegations that assume disputed facts and assume the ultimate allegation and, therefore, defendants deny. 3. Defendants deny. 4. Defendants admit that plaintiff seeks the relief specified in paragraph 4 but deny that plaintiff is entitled to any of the relief he seeks in the Complaint.

Case 4:04-cv-01075-CAS Document 39 Filed 06/30/2005 Page 2 of 9
II. Plaintiff 5. Defendants admit that plaintiff is an offender in the custody of the Missouri Department of Corrections and is confined at the Potosi Correctional Center in Mineral Point, Missouri 63660 and that plaintiff has been referred to as CP-91 but assert that the address for Potosi Correctional Center is 11593 State Highway O and assert that plaintiff’s Register Number is 990091.
III. Defendants 6. Defendant admits that Larry Crawford1 is the Director of the Missouri Department of Corrections, a department of the State of Missouri and that plaintiff states he is suing Crawford in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief. The remaining allegations in paragraph 6 assume disputed facts and assume legal conclusions and therefore, defendant deny the remaining allegations of paragraph 6. 7. Defendants admit that Donald P. Roper is the Superintendent of the Potosi Correctional Center located in Mineral Point, Missouri and that plaintiff claims that he is suing Roper in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief. Defendants admit that executions have been carried out
1The Complaint names Gary Kempker as a defendant. By order of this Court, the current Director of the Missouri Department of Corrections, Larry Crawford, is substituted in place of former director Gary Kempker as a party-defendant. (Docket No. 33).
2

Case 4:04-cv-01075-CAS Document 39 Filed 06/30/2005 Page 3 of 9
at Potosi Correctional Center. The remaining allegations in paragraph 7 assume factual and legal conclusions and therefore, defendants deny the remaining allegations of paragraph 7.
8. Defendants admit that James Purkett is the Superintendent of the Eastern Reception Diagnostic and Correctional Center located in Bonne Terre, Missouri and that plaintiff claims that he is suing Purkett in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief. Defendants admit that executions have been carried out at Eastern Reception Diagnostic and Correctional Center. The remaining allegations in paragraph 8 assume factual and legal conclusions and therefore, defendants deny the remaining allegations of paragraph 8.
9. Defendants make no response to paragraph 9 because it is directed to other defendants and not to them.
10. Defendants are without sufficient knowledge to form a belief as to the truth of the allegations contained in paragraph 10 of plaintiff’s Complaint, and therefore, each and every allegation contained in paragraph 10 is denied.
11. Defendants admit that plaintiff states he is bringing this action under the Eighth Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment to the United States Constitution but assert that plaintiff has not stated a claim thereunder.
12. Defendants admit that plaintiff seeks to invoke this Court’s jurisdiction
3

Case 4:04-cv-01075-CAS Document 39 Filed 06/30/2005 Page 4 of 9
pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3), 28 U.S.C. § 1343(a)(4), 42 U.S.C. § 1983, 28 U.S.C. § 2201(a) and 28 U.S.C. § 1391(b)(2) but deny that plaintiff has stated a claim upon which relief may be granted and therefore, deny that this Court has jurisdiction.
13. Defendants admit that Mineral Point, Missouri is within the venue of the Eastern Division of the Eastern District of Missouri under 28 U.S.C. § 1391(b)(2) but deny that acts or omissions have been committed that would provide a basis for venue.
V. Facts 14. Defendants admit that plaintiff was convicted of capital murder and sentenced to death and admit that plaintiff is awaiting the Missouri Supreme Court to set a date for his execution and that his execution would be by means of lethal injection. Defendants assert that Missouri law vests the authority to supervise and direct executions in the Director of the Department of Corrections. The remaining allegations in paragraph 14 assume factual and legal conclusions and therefore, defendants deny the remaining allegations of paragraph 14.
15. Defendants admit that since 1989, the three drugs used for lethal injection in Missouri are sodium pentathal, pancuronium bromide (pavulon), and potassium chloride. The remaining allegations in paragraph 14 and footnote 1 assume factual and legal conclusions and therefore, defendants deny the remaining allegations of paragraph 14.
16. Defendants deny.
4

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17. This paragraph contain allegations that ssume disputed facts and assume the ultimate allegations, Therefore, defendants deny.
18. This paragraph contain allegations that assume disputed facts and assume the ultimate allegations, and therefore, defendants deny.
19. This paragraph and footnotes 2 and 3 contain allegations that assume disputed facts and assume ultimate allegations and therefore, defendants deny.
20. This paragraph contains allegations that assume disputed facts and assume the ultimate allegations and therefore, defendants deny.
21. Defendants deny. 22. Defendants deny.
VI. Claim 23. For their answer to paragraph 23, defendants hereby adopt and incorporate their answers to paragraphs 1 though 22 here and for their answer to paragraph 23. 24. Defendants deny.
VII. Prayer for Relief 25. Defendants deny that plaintiff is entitled to any relief under his Complaint. 26. Defendants deny that plaintiff is entitled to any relief under his Complaint. 27. Defendants deny that plaintiff is entitled to any relief under his Complaint.
5

Case 4:04-cv-01075-CAS Document 39 Filed 06/30/2005 Page 6 of 9
Defendants deny each and every other allegations contained in plaintiff’s Complaint not specifically admitted or addressed in this answer. Defendants deny that plaintiff is entitled to any relief sought in his Complaint.
By way of further answer and affirmative defenses, defendants state as follows: FIRST AFFIRMATIVE DEFENSE
Plaintiff fails to state a claim upon which relief can be granted. Therefore, this complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
SECOND AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by Missouri’s Statute of Limitations and his complaint should be dismissed.
THIRD AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the Eleventh Amendment and his complaint should be dismissed.
FOURTH AFFIRMATIVE DEFENSE Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) and therefore his complaint should be dismissed.
FIFTH AFFIRMATIVE DEFENSE
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To the extent plaintiff’s claims are based on the doctrine of respondeat superior, such claims are barred because the doctrine of respondeat superior is not a basis for recovery under 42 U.S.C. § 1983.
SIXTH AFFIRMATIVE DEFENSE Plaintiff is unable to meet the legal requirements for the entry of declaratory and injunctive relief and this his Complaint should be dismissed.
SEVENTH AFFIRMATIVE DEFENSE To the extent plaintiff requests monetary relief, Defendants are protected from liability and suit by Eleventh Amendment immunity and the doctrine of qualified immunity.
EIGHTH AFFIRMATIVE DEFENSE Defendants Roper and Purkett are not proper parties because they have no authority to decide the method of execution.
NINTH AFFIRMATIVE DEFENSE Plaintiff is challenging his conviction, sentence, and manner of carrying out that sentence. Therefore, plaintiff must exhaust available state remedies in a federal habeas corpus proceeding prior to pursuing a claim premised under 42 U.S.C. Section 1983.
TENTH AFFIRMATIVE DEFENSE
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Case 4:04-cv-01075-CAS Document 39 Filed 06/30/2005 Page 8 of 9
Defendants reserve the right to amend this answer in order to assert any additional
affirmative defenses that may be uncovered or made known during the pendency of this
case.
WHEREFORE, defendants Crawford, Roper, and Purkett request this Court
dismiss this action with prejudice and assess costs against plaintiff.
Respectfully submitted,
JEREMIAH W. (JAY) NIXON Attorney General
/s/Denise G. McElvein Denise G. McElvein Assistant Attorney General 720 Olive Street, Suite 2150 St. Louis, MO 63101 (314) 340-7861 (telephone) (314) 340-7029 (fax)
Stephen D. Hawke Assistant Attorney General 1530 Rax Court Jefferson City, MO 65109 (573) 751-3321 (telephone) (573) 751-5391 (fax)
CERTIFICATE OF SERVICE
A copy of the foregoing was served in accordance with this Court’s electronic filing procedures this 30th day of June, 2005 to:
Michael J. Gorla 720 Olive Street, Suite 1630 St. Louis, Missouri 63101
8

Case 4:04-cv-01075-CAS Document 39 Filed 06/30/2005 Page 9 of 9 Christopher E. McGraugh Leritz, Plunkert & Bruning, P.C. One City Center, Suite 2001 St. Louis, Missouri 63101 /s/Denise G. McElvein
9

 
 Case 4:04-cv-01075-CAS Document 58 Filed 08/16/2005 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON, Plaintiff,
v. LARRY CRAWFORD, et al.,
Defendants.

)

)

)

)

)

Cause No. 4:04CV1075 DJS

)

)

)

)

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

COME NOW defendants Crawford, Roper, and Purkett, by and through counsel, and move this Court to grant summary judgment in their favor and against the plaintiff for the reason that there are no genuine issues of material fact, and that they are entitled to judgment as a matter of law.
In support of this motion, defendants direct the attention of the Court and plaintiff to the memorandum of law filed contemporaneously herewith. If this Court desires oral argument on the motion, defendants request a hearing date of August 23, 2004.
WHEREFORE, defendants request that this Court grant defendants' motion for summary judgment and that the Court grant such other relief as this Court deems just and proper, including the awarding of costs to these defendants.

Case 4:04-cv-01075-CAS Document 58 Filed 08/16/2005 Page 2 of 3
Respectfully submitted, JEREMIAH W. (JAY) NIXON Attorney General /s/Denise G. McElvein Denise G. McElvein Assistant Attorney General 720 Olive Street, Suite 2150 St. Louis, MO 63101 (314) 340-7861 (telephone) (314) 340-7029 (fax) Stephen D. Hawke Assistant Attorney General 1530 Rax Court Jefferson City, MO 65109 (573) 751-3321 (telephone) (573) 751-5391 (fax)
2

Case 4:04-cv-01075-CAS Document 58 Filed 08/16/2005 Page 3 of 3
CERTIFICATE OF SERVICE A copy of the foregoing was served in accordance with this Court’s electronic filing procedures this 16th day of August 2005 to:
Michael J. Gorla 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 Christopher E. McGraugh Leritz, Plunkert & Bruning, P.C. One City Center, Suite 2001 St. Louis, Missouri 63101
/s/Denise G. McElvein
3

 
 Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 1 of 14
~~~o6 ~-\~· IN THE UN1TED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

INRE

)
) No. _ _ _ _ _ _ , from

LARRY CRAWFORD, DON ROPER, )

AND JAMES PURKETT

) Dist. Ct. No. 4:04CV1075 DJS

Petitioners

)

v.

)

)

TIMOTHY JOHNSTON,

)

Respondent.

)

PETITION FOR IMMEDIATE WRIT OF PROIDBITION
Timothy Johnston is to be executed on August 31,2005. In the present action, he is seeking a declaration that Missouri's lethal injection protocol is unconstitutional. The State has produced all ofthe evidence sought by Mr. Johnston, with the exception of the individual names of the corrections officers and medical personnel who will conduct the execution. The District Court has ruled that these names must also be produced. That information is of absolutely no value to Johnston's ability to prove his claims. But, if the State discloses those names as the District Court ordered and those names end up public- either through an intentional or inadvertent violation ofthe protective order entered below- the State's ability to conduct orderly and constitutional executions will be compromised and the individuals named would be at great risk ofharassment and potentially even physical harm. Accordingly, the State requests immediate relief from this order.

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 2 of 14
Introduction: The underlying suit is one of many brought by opponents of capital
punishment, challenging the methods of lethal injection. As noted at p. 11, infra, in every such challenge to date, the constitutionality ofthe method used by Missouri has been upheld.
Petitioners do not here dispute the right of the plaintiffs below to litigate the constitutionality of Missouri's chosen method. Thus, petitioners have produced considerable information in response to Johnston's discovery requests. Indeed, they have produced essentially everything that the plaintiffs sought- except the identity of those who, to use a metaphor from a method still authorized in at least one state, pull the trigger.
The plaintiff's right to litigate the constitutional question cannot interfere with the rights of the States to impose that method, if it is constitutional. Nor can it interfere with the lives and livelihood ofthose who perform the task ofadministering that method. Ifthe names are not protected, even inadvertent disclosure would open those individuals to harassment - harassment that is assured by the zeal of capital punishment opponents and the immediacy of the internet. The only way that such harassment even might be avoided would be to assign those tasks to someone else. But under the district court's approach, the names ofthose next assigned would also
2

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 3 of 14
then have to be disclosed. The State could never avoid the interference that plaintiff insists - incorrectly - is his right.
The underlying suit can proceed without this information. Both sides know what drugs are used, in what amounts, and the training, qualifications and experience of the corrections officers and medical personnel executing Johnston's sentence. Based on that information, both sides can litigate the constitutionality ofthe Missouri approach. The cost that would be incurred by adding the disclosure of the names of the technicians is one that cannot be justified, and that this Court should order the district court not to require the State and the technicians to pay. I. The relief sought
Petitioners Crawford, Roper, and Purkett request that the Court issue an immediate writ prohibiting the Honorable Donald J. Stohr, U.S. District Judge, United States District Court for the Eastern District of Missouri, Eastern Division, from requiring disclosure of the names ofthe persons who will mix the drugs, start the IV and push the syringe plunger to carry out Timothy Johnston's lethal injection on August 31, 2005.
At 4:40p.m. on August 12, 2005, the district court1 denied petitioners'
1U.S. District Court Judge E. Richard Webber signed the order, however,
the case is assigned to Donald J. Stohr.
3

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 4 of 14
motion to reconsider the district court's order that required the above disclosures. Petitioners bring this petition for writ of prohibition because the district court has no discretion to order production of information, even under a protective order, that is not relevant nor likely to lead to the discovery of admissible evidence, particularly where the disclosure is injurious to the disclosing party because it will jeopardize the safety ofthose disclosed and lead to harassment and annoyance of the innocent third parties.
A writ of prohibition is appropriate also because petitioner has no other adequate legal remedy. See Ex parte New York, 256 U.S. 490,41 S.Ct. 588, 65 L.Ed. 1057 (1921). In this case, there is no other adequate legal remedy because, once the names are disclosed, any appeal rights over the issue are meaningless. II. The issue presented.
Whether the district court has discretion to order petitioners to disclose, even under a protective order, the names of the medical professionals who will mix the three drugs used for lethal injection, the medical professionals who will insert the IV for administration of the three drugs, and the corrections persons who will push the syringe plunger to administer the drugs to Johnston for his lethal injection on August 31, when these individuals' credentials and qualifications have already been disclosed to Johnston's attorneys and they do not need these
4

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 5 of 14
names to support their claim that the three drugs used for lethal injection will subject Johnston to an "unnecessary risk of unconstitutional pain and suffering" (Order, Doc. #37 quoting Complaint, Doc. # l, ~ 2, p. 1), nor to support their claim that the three drugs are administered by "inadequately trained personnel." (Order, Doc. #37 quoting Complaint, Doc.# 1,, 3). In light of the information that has been provided to Johnston's attorneys, the names ofthe individuals will not lead to the discovery of admissible evidence. III. The facts necessary to understand the petition.
A jury convicted Johnston of capital murder for brutally beating his wife to death in 1989.2 The jury sentenced him to death. The rest of the facts underlying his conviction are set forth in State y. Johnston, 957 S.W.2d 734, 739 {Mo. en bane 1997), cert. denied, 522 U.S. 1150 ( 1998). Johnston sought and was denied
relief both on direct appeal and in his state post conviction proceedings. IQ. Next,
Johnston sought and was denied federal habeas corpus relief challenging his conviction and resulting death sentence. Johnston v. Bowersox, 119 F.Supp.2d
2The medical examiner determined the cause of death as the collapse ofthe support structure around the heart and lungs, rendering those organs unable to function because they could not bear the weight ofthe muscle, tissue and bone pressing on them. Bleeding under the skin confirmed that the victim had remained alive through most ofthe beating. Johnston, 957 S.W.2d at 740.
5

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 6 of 14
971 (E.D.Mo 2000). After the district court denied Johnston's petition for writ of habeas corpus relief, plaintiff sought and was granted from the Eighth Circuit a certificate of appealability. This Court affirmed the district court's denial of the habeas petition. Johnston v. Luebbers, 288 F.3d 1048 (8th Cir. 2002).
While awaiting the Missouri Supreme Court's order setting a date for his execution, Johnston filed suit under 42 U.S.C. § 1983 seeking declaratory relief that Missouri's method oflethal injection violates the Eighth Amendment and seeking a permanent injunction barring his execution. (Complaint '11'1125, 26). Briefly stated, the substance of Johnston's claim is that the first drug injected will be "an unreliable ultra short-acting anesthetic that can and will leave [Johnston] conscious but trapped in a paralyzed body racked with pain, suffocation and a heart attack." (Complaint, Doc. #1, '1!3).
During the pendency of the section 1983 action, the parties engaged in discovery. In response to Johnston's interrogatories, petitioners provided the names of the three drugs to be utilized in effecting his death sentence, but objected to providing the names of those who mix the drugs, the names ofthose who insert
the rv, and the names ofthose who push the syringe plunger to administer the
lethal dose of drugs. Johnston filed a motion to compel responses and the district court granted in part the motion to compel. (Order, Doc.# 37). The district court
6

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 7 of 14
ordered the disclosure of the identities under a protective order. On August 1, 2005, the parties filed their protective order and their Joint Proposed Scheduling Plan. On that same day, the Missouri Supreme Court issued an order setting Johnston's execution for August 31, 2005. The Joint Proposed Scheduling Plan and the protective order were prepared and filed in the section 1983 case with a backdrop of no execution date and with the assumption that the case was proceeding as an unexpedited civil rights action. On the very day these two pleadings were filed, Johnston's execution date was set and this changed those assumptions. The Missouri Supreme Court set the execution date with full knowledge of the pendency of Johnston's federal claims and has denied his motion for stay of execution based on the pendency of his federal claims.
With the setting of Johnston's August 31 execution date, petitioners moved immediately to resolve Johnston's claims on the merits. On August 8, 2005, petitioners filed their motion to expedite with memorandum in support and addressed Johnston's claim that the three drugs used for lethal injection will subject him to an "unnecessary risk of unconstitutional pain and suffering." (Order, Doc.# 37 quoting Complaint Doc. #1, ~ 2, p. 1). Petitioners filed, along with their motion, Director Crawford's affidavit providing the dosage of each drug, the timing, sequence and flow rates of the drugs, and the procedures used to
7

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 8 of 14
carry out Missouri's method oflethal injection (Crawford Affidavit, attached), and their expert's affidavit with attached graphs explaining why, to a reasonable degree of medical certainty, Johnston will not regain consciousness during his execution (Dershwitz Affidavit, attached).
That same day, Johnston filed a motion to expedite answers to interrogatories, including the interrogatory requesting the names. The district court denied petitioners' motion and granted Johnston's motion. Petitioners filed a motion for reconsideration with regard to the disclosure of the names, and answered the remaining discovery, including information about the qualification of the individuals. The motion for reconsideration was denied. IV. The reason why the writ should issue.
The disclosure of the identities is not reasonably likely to lead to the discovery of admissible evidence given Johnston's claims that improper training is at fault, not a particular individual. In their interrogatory answers petitioners disclosed 99.9% of all the information sought. Thus, the need for protecting the safety of those involved in directly administering the drugs to Johnston outweighs any possible speculative use Johnston could make out of these individuals' names.
At stake in this writ action is the Department of Corrections' ability to carry out Johnston's execution on August 31, 2005. The Director ofthe Department of
8

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 9 of 14
Corrections, Lany Crawford, avers that if the names are released it will hamper his ability to use good practices to cany out Johnston's lethal injection in sixteen days. (Crawford Affidavit, '1!4, attached as Exhibit A). Any error of disclosure has far graver consequences in a case where execution is at hand because the disclosure of the names will jeopardize the safety and security of innocent third parties.
Even with a protective order in place, people make mistakes and an inadvertent slip ofthe tongue or an accidental mention in a hastily e-filed pleading or attached documents places at risk ofphysical harm or harassment to the doctor, nurse, and the corrections personnel who physically carry out plaintiffs lethal injection. And once disclosed, their names can never be recalled. Their names would circulate via the Internet and be published on Web pages that routinely advocate against the death penalty. This places those individuals and their families at risk of physical harm or harassment from those opposed to capital punishment generally or from those family members or comrades of Johnston opposed only to his execution on August 31.
Significantly, any public disclosure of these names means that the names would also become available to Missouri's 5,000 plus inmate population. Johnston has been moved to Eastern Reception Diagnostic Center for his execution and at
9

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 10 of 14
Potosi there are 54 offenders awaiting their execution. Director Crawford and Superintendents Roper and Purkett have a compelling interest in maintaining order in their correctional facilities and in maintaining the safety and security of the inmates and staff at those facilities. To maintain that order they need to prevent the disclosure of these names.
In contrast to these overwhelming safety and security concerns for correction's personnel and innocent third parties, is the absolute absence of need for these names in order for Johnston to proceed with his case. The names are not necessary to his claim that the drugs used will subject him to unconstitutional pain and suffering.
Twenty-seven of the thirty-seven states that use lethal injection use the challenged three drug combination of chemicals. Beardslee v. Woodford, 395 F.3d l 064, 1072 (9tlt Cir. 2005). And every court addressing the issue of sodium pentathol (thiopental sodium) has held that its use is not unconstitutional, at least where the quantity is two grams or above. Missouri has taken reasonable precautions to ensure that Johnston will experience nothing other than the insertion of the intravenous catheter. Because Missouri uses 5 grams of thiopental sodium as the initial drug, plaintiff will be unconscious and unable to feel any pam. In Beardslee, the Ninth Circuit noted that the state's expert, Missouri's
10

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 11 of 14
expert here, Dr. Mark Dershwitz, determined that with a dosage of 5 grams, "over
99.999999999999% of the population would be unconscious within sixty seconds from the start of the administration of this dosage of thiopental sodium and [most people would remain] unconscious for a period in excess of l3 hours." Id. at 1075. In Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004), Dr. Dershwitz opined
that every person given 5 grams of thiopental sodium [sodium pentathol] will have
stopped breathing prior to the subsequent administration ofthe second drug, pancuronium bromide. Id. at 1032. Significantly, in Beardslee. the Ninth Circuit found that "even [plaintiffs expert [Heath]] concedes that the amount of sodium pentathol [5 grams] given under Procedure 770, if properly administered, would likely be sufficient to cause loss ofconsciousness and probable death prior to the administration ofpancuronium bromide [the second drug]." Id. at 1075. Any finding that the use ofthe two remaining drugs is unconstitutional would necessarily have to be premised on a finding that the use of the first drug, 5 grams of sodium pentathol, did not render the inmate unconscious. Beardslee, 3 95 F.3d at I076. This has not been the holding of any court to date.
Petitioners have produced the information necessary to resolve Johnston's Section 1983 claim on the merits; Missouri's method ofexecution is in full compliance with humane execution protocols as reviewed by other courts; and
11

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 12 of 14
petitioners requested an expedited hearing on the merits to prove that Johnston's claims were unfounded, but that request was denied. Petitioner Crawford is required by law to execute Johnston on August 31, 2005. Disclosing the names of the individuals who will perform that execution puts those individuals and Crawford's ability to perform his duties in jeopardy.
WHEREFORE, for the foregoing reasons, petitioners respectfully request this Court grant the petition for immediate writ of prohibition and direct the Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri, to vacate its discovery orders, insofar as such orders require the disclosure of the names ofperson directly involved in carrying out Johnston's lethal injection on August 31, 2005. Petitioners also move this Court to direct the district court to resolve Johnston's claims on the merits before August 24, 2005, or failing that, to order Johnston to file his motion for a stay, if any, before August 19, 2005, and to direct the district court to hold an evidentiary hearing on and resolve such motion for a stay on or before August 24, 2005.
12

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 13 of 14

Respectfully submitted,

JEREMIAH W. (JAY) NIXON MISSOURI ATTORNEY GENERAL

~~ V~ L\J;:L.:a
Gail Vasterling--vwv)

b~~~.~<:.~~

Assistant Attorney General 6th Floor, Broadway Building P.O. Box 899 Jefferson City, MO 65102 Phone No. (573) 751-8764 Fax No. (573) 751-9456

Denise G. McElvein Assistant Attorney General 720 Olive Street, Suite 2150 St. Louis, MO 63101 Phone No. (314) 340-7861 Fax No. (314) 340-7029 ATTORNEYS FOR PETITIONERS CRAWFORD, ROPER, AND PURKETT

13

Case 4:04-cv-01075-CAS Document 57-1 Filed 08/15/2005 Page 14 of 14
CERTIFICATE OF SERVICE I hereby cert!g that a true and correct copy of the foregoing was hand delivered this IS day of August, 2005, to:
Michael J. Gorla 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 Christopher E. McGraugh Leritz, Plunkert & Bruning, P.C. One City Center, Suite 2001 St. Louis, Missouri 63101 Honorable Donald J. Stohr United States District Judge Eastern District of Missouri 111 S. Tenth Street St. Louis, MO 63102
Assistant Attorney General
14

 
 Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 1 of 18

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

InRe:

)

)

LARRY CRAWFORD, DON ROPER, )

and JAMES PURKETT,

)

) No. 05-3228

Petitioners,

)

) CAPITAL CASE

vs.

)

) EXECUTION SCHEDULED

TIMOTHY JOHNSTON,

) AUGUST 31, 200S

)

Respondent.

)

)

ANSWER TO PETITION FOR IMMEDIATE WRIT OF PROIDBITION

COMES NOW respondent, Timothy Johnston. by and through counsel, Michael

J. Gorla and Christopher E. McGraugh, and prays that the Court deny petitioners'

petition for immediate writ of prohibition. In support of his position, respondent

states as follows:

Petitioners filed a petition for immediate writ of prohibition seeking an order

directing the Honorable Donald J. Stohr, United States District Court Judge, to vacate

it's discovery order issued in Case No. 4:04CV1075 DJS insomuch as said order

requires the disclosure ofthe names ofcorrections personnel who are to be involved

in Mr. Johnston's scheduled execution. Judge Stohr previously ordered the disclosure
RECEIVED
AUG 1 7 ZOOS
ii, s, COURt OF. AP1>EA13
EkMrn CJRCUm

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 2 of 18
of said information pursuant to the terms of an agreed protective ordered crafted and agreed to by the parties in the case below. I
The Standard for Issuance of a Writ of Prohibition As recognized by this Court, a writ of prohibition is a drastic remedy, one that is "to be invoked only in extraordinary situations."2 This same consideration applies whether the writ seeks to mandate action, or like in the present case, to prohibit action.3 The Supreme Court has held that an issuance of a writ of mandamus is only justified in circumstances amounting to "a judicial usurpation of power.,,4 "The writ is usually denied unless the applicant ... can establish 'an unquestioned legal right to have the performance of particular duties sought to be enforced or enjoined.,,,5 The party seeking the writ has the burden ofshowing that it's right to issuance ofthe same
,A copy of the agreed protective order is attached hereto and incorporated herein as respondent's Exhibit 1.
2SeelnreJackson County, Missouri, 834F.2d 150, 151 (8'hCir.1987)(quoting Allie Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980».
3Id. at 151. 4Gu/fstreamAerospace Corp. v. Mnyacamas Corp., 485 U.S. 271, 289 (1988).
5See Lofton v. United States District Court/or the Eastern District 0/Arkansas,
882 F.2d 300 (8th Cir. 1989) (quoting In re Missouri, 664 F.2d 178, 180 (8th Cir. 1981».
2

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 3 of 18
is clear and indisputable.6 Such extraordinary reliefis not warranted here for a variety of reasons.
Judge Stohr Was Within His Discretion to Compel Disclosure of the Information The district court has substantial discretion in controlling the discovery phase of litigation.7 A quick review of the proceedings below shows that the district court decision compelling discovery ofthe identities ofcorrections personnel to be involved in plaintiff's execution was within Judge Stohr's discretion. On November 24, 2004, respondent propounded his first set of interrogatories to petitioners. Petitioners objected to providing most of the information sought, and after counsel were unable to work out their differences, respondent filed motions to compel with the district court. Judge Stohr sustained respondent's motions to compel, and ordered petitioners to answer the same; however, in doing so, the district court acknowledged that parts ofthe discovery answers could be sensitive, and ordered the parties to confer and attempt to draft a agreed protective order limiting the use and disclosure ofcorrections personnel involved in executions. Counsel for the parties did so and were able to reach an agreement on the terms ofa protective order.8 A motion
6See Bankers Life & Casualty Company v. Holland, 346 U.S. 379, 384 (1953). 7See Hickman v. Taylor, 328 U.S. 475, 507 (1947). eSee respondent's Exhibit 1.
3

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 4 of 18
for entry ofthis protective order accompanied by an agreed protective order was filed in the district court on August 1, 2005 at 4:57 p.m. Central Daylight Time. The agreed protective order was approved by the court on August 3, 2005.9
The petitioners assert in their petition that the protective order and joint proposed scheduling plan "were prepared and filed in the § 1983 case with a backdrop of no execution date.,,10 Petitioners' assertion is a blatant misstatement.
The parties filed their joint proposed scheduling planll with the district court on August 1,2005 at 4:26 p.m. CDT. The agreed protective order was filed at 4:57 p.m. on the same date. Footnote 1 to the joint proposed scheduling plan reads as follows:
"The dates reflected in this scheduling plan are for the trial ofthe merits ofthis case. In light ofthe Missouri Supreme Court's setting ofAugust 31,2005 as plaintiffs execution date, the selection of these dates does not foreclose plaintiff's request for a temporary restraining order." The footnote is absolute proofthat the parties were aware ofMr. Johnston's execution date prior to the filing of the joint proposed scheduling plan and agreed protective order. Petitioners' contrary statement is simply not true.
9Doc. #45. IOSee Petition for Immediate Writ ofProhibition, p. 7. "A copy of the joint proposed scheduling plan IS attached hereto and incorporated herein as respondent's Exhibit 2.
4

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 5 of 18
It is clear that Judge Stohr has not usurped his authority by ordering disclosure ofthe names of corrections and medical personnel involved in the execution process. In fact, he has taken steps to protect and limit the use and disclosure of said information. Federal rules confer broad discretion on the district court to decide when a protective order is appropriate and what degree of protection is required.12 What
petitioners want the Eighth Circuit to do is to substitute it's judgment for that ofJudge
Stohr on the issue as to whether or not the disclosure of the names of corrections personnel involved in the discovery process is reasonably calculated to lead to the discovery of admissible evidence. Judge Stohr has decided this issue in favor of respondent, a decision well within his discretion. Prohibition does not lie to enjoin Judge Stohr from doing so.
This Matter is Moot - The Names and Addresses of Corrections and Medical Personnel Have Already Been Disclosed On Friday, August 12, 2005, the discovery which the petitioners seek to prohibit the district court from ordering them to release was, in fact, delivered to counsel for petitioner. The delivery was made at the direction of counsel for
12See Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999) (quoting Seattle Times Company v. Rhinehart, 467 U.s. 20, 36 (1984)).
5

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 6 of 18
petitioners after she received notice that her motion asking Judge Stohr to reconsider his earlier order ordering such disclosure was overruled.
Counsel for respondent currently possess the information subject to the protective order approved by the district court. They are handling said information with extreme care, taking every precaution to insure that said information is protected from disclosure as limited by the district court's protective order. Since the names of corrections and medical personnel who will conduct respondent's execution have already been disclosed, this matter is moot.
Additional Relief Requested by Petitioners Is Not Subject to a Writ of Prohibition
In addition to requesting that this Court direct Judge Stohr to vacate his discovery order requiring the disclosure of the names of corrections personnel involved in the execution process, petitioners also move the Court to direct the district court to resolve respondent's claim on the merits before August 24, 2005, or alternatively, order Mr. Johnston to file his motion for stay before August 19,2005, and direct the district court to hold an evidentiary hearing and resolve said motion on or before August 24, 2005.
As discussed earlier, the ability ofa district court judge to manage his caseload IS subject to his discretion. Given the fact that his management ability is
6

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 7 of 18
discretionary, it is not subject to a writ of prohibition. As stated earlier, the issuance of a writ is justified "only in exceptional circumstances amounting to a judicial usurpation ofpower."n Such exceptional circumstances do not exist in this case.
Judge Stohr has properly assigned this case as a Track 3 complex case. The parties have agreed with this classification and have filed a joint proposed scheduling plan submitting a proposed discovery plan culminating in a projected trial date ofJune 26, 2006. 14 Petitioners have agreed to this, doing so at a time when they were well
aware of Mr. Johnston's execution date. Now they are seeking to renege on their
previous agreement and ask this Court to order Judge Stohr to proceed otherwise when they have no unquestioned legal right to have him do so.
Petitioners are also seeking an order from this Court ordering respondent to file his motion for stay of execution no later than August 19,2005. Again, this is a decision that is completely within the discretion ofJudge Stohr. As this Court surely realizes, respondent will, in fact, file a motion seeking a stay of execution in the district court. IS
13See Guljstream Aerospace Corp., 485 U.S. at 289. 14See respondent's Exhibit 2. 15For the Court's information, respondent's counsel received petitioners' answers to his first set ofinterrogatories on the afternoon ofFriday, August 12, 2005. They have been working diligently to complete their motion for TRO/preliminary injunction, and anticipate, barring unforeseen circumstances, filing the same on
7

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 8 of 18

Conclusion

Prohibition is an extraordinary remedy that should be sparing exercised. It is

confined to cases where the applicant has an unquestionable legal right to have the

performance of a particular act enjoined. Given the fact that Judge Storh's order

compelling the identity of the corrections personnel involved in Mr. Johnston's

execution was well within his discretion, and that said information was disclosed to

respondent's counsel prior to the filing of this writ, respondent prays that this Court

issue an order denying petitioners' petition for immediate writ of prohibition.

Respectfully Submitted,

~£..Q~~

cGRAUGH, #2278 Co-Counsel fo Respondent One City Center, Suite 2001 St. Louis, Missouri 63101 (314) 231-9600 (314) 231-9480 - Facsimile E-mail: cmcgraugh@leritzlaw.com

MICHAEL J. GO #3251 Co-Counsel for Respondent 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 (314) 621-1617 (314) 621-7448 - Facsimile E-mail: mjgorla@msn.com

August 18,2005. 8

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 9 of 18
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe foregoing sent via facsimile, and United States Postal Service, first-class postage prepaid, this 17th ofAugust, 2005 to: Ms. Gail Vasterling, Assistant Attorney General, 6t1l Floor, Broadway Building, P.O. Box 899, Jefferson City, Missouri 65102, at facsimile number (573) 751-9456, and Ms. Denise G. McElvein, Assistant Attorney General, Wainwright State Office Building, III N. 7th Street, Suite 934, St. Louis, Missouri 63101, at facsimile number (314) 340-7029.
MICHAEL J. GOI"UA"U 720 Olive Street, Suit
st. Louis, Missouri 63101
(314) 62]-1617 (314) 621-7448 - Facsimile E-mail: mjgorla@msn.com
9

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 10 of 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DMSION

TIMOTHY JOHNSTON, Plaintiff,
v. LARRY CRAWFORD, et aL,
Defendants.

) ) ) )
) Cause No. 4:04CVI07S DJS
) ) ) )

AGREED PROTECTIVE ORDER

WHEAREAS, this having previously ordered that defendants auswer

"Interrogatory 1; Interrogatory 2, except as to subpart (k); Interrogatory 3, limited to the

last four Missouri executions; Interrogatory 4, except as to subpart (h) and limited to the

last ten Missouri executions; Interrogatory 5, limited to the time period from 2000 to

present; and Interrogatory 6, limited to the last four Missouri executions" and that said

parties "confer forthwith and employ their best efforts to formulate a mutually acceptable

proposed protective order appropriately limiting the use and disclosure of the idnetities of

corrections personnel involved in executions," it is hereby ordered as follows:

1. Defendants' responses to the aforementioned interrogatories concerning the

identities, training, credentials, qualifications, and experience of corrections personnel

involved in executions are deemed to be confidential information. As used herein, the

term "corrections personnel" shall mean employees, independent contractors, or agents of

1

Respondent's Exhibit 1

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 11 of 18
the Missouri Department of Corrections. 2. Said confidential information shall not be made available to plaintiffbut only
to this Court for in camera review, to the party producing the responses, and to counsel of record for all parties and their staff who are bound by the terms of this Agreed Protective Order. With the exception of those person mentioned in paragraph 3, no other person shall have access to confidential information without the written approval of the party producing such confidential information or without an order from the Court. As used herein, the phrase "staff' shall mean clerks, paralegals, and secretaries in the regular employ of the parties' counsel.
3. The party producing the confidential information contained in the interrogatory responses and the counsel ofrecord for all parties and their staffwill not, directly or indirectly, disclose or permit the disclosure of the confidential information contained in defendants' interrogatory responses, or any portion thereof, to anyone else other than any expert or experts the parties retain in connection with this case. In the case of disclosure to an expert or experts, counsel ofrecord for such parties shall [lISt furnish a copy of the Court's Agreed Protective Order to such person and obtain their agreement in writing that they will abide by this Order and that such information wilI not be disclosed, directly or indirectly, to any person other than those qualified under the Agreed Protective Order.
4. The confidential information produced pursuant to this Agreed Protective Order shall be used by plaintiffs counsel ofrecord, including theirrespective staffs, for
2

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 12 of 18
the sole purpose of representing the interest of plaintiff Timothy Johnston in this litigation and for no other purposes. Confidential infonnation shall not be given, shown, made available, discussed or otherwise communicated for any purpose other than the litigation of this action, and then only in accordance with the tenns and conditions of this Agreed Protective Order.
5. All confidential infonnation and copies or extracts thereof shall be maintained in the custody of counsel of record for the parties in a manner that limits access to qualified persons.
6. If any portion of a submission to the Court contains confidential information, the portion containing the confidential information shall be filed under seal in a sealed envelope on which shall be affixed the caption of this case, a general description of the nature of the contents that does not disclose any confidential information, the word "CONFIDENTIAL," and a statement substantially in the following fonn:
THIS ENVELOPE CONTAINS MATERlALS SUBmCT TO A AGREED PROTECTIVE ORDER ENTERED IN THIS CASE. IT IS NOT TO BE OPENED, NOR ARE ITS CONTENTS TO BE DISPLAYED, REVEALED OR MADE PUBLIC, EXCEPT BY ORDER OF THE COURT. A copy of this Agreed Protective Order shall be submitted to the Clerk of the Court with the materials filed under seal. Unless otherwise ordered by the Court, appropriate steps shall be taken to preserve the confidentiality of confidential information during this action and at any hearing or other proceedings at which confidential
3

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 13 of 18
information may be referred to or disclosed. 7. Any person in possession of confidential information who receives a request or
a subpoena or other process for confidential information from any non-party to this action shall promptly give notice by telephone and written notice by overnight delivery andlor telecopier to counsel for the parties in this case, enclosing a copy of the request, subpoena or other process. In no event shall production or other disclosure pursuant to the request, subpoena or other process be made except upon order of this Court after notice and
hearing.
8. Nothing in this order shall preclude any party from seeking and obtaining a modification of the Agreed Protective Order, or additional or different protection with respect to information which it believes is confidential.
9. This Agreed Protective Order is intended to provide a mechanism for the handling of confidential information. It shall not be deemed to be a waiver by any of the parties ofany objections as to admissibility, relevancy, materiality, or discoverability, nor a waiver of any right or protection otherwise afforded by the Federal Rules of Civil Procedure relating to discovery, or of the Federal Rules of Evidence.
10. This Court shall retain jurisdiction for the purpose of resolving any dispute that may arise in relation to this Agreed Protective Order.
11. Within ten(IO) days of the fmal termination of this case, whether by settlement or at the end of trial or hearing andlor any appeals, all confidential information which is
4

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 14 of 18
in the custody or control of plaintiffs counsel and counsels' staffshall be returned to the
counsel for the producing party.
12. This Agreed Protective Order shall survive tennination of this case.
Respectfully submitted,
ffiREMIAH W. (JAY) NIXON Attorney General
IsIDenise G. McElvejn DeniseG. McElvein Assistant Attorney General Wainwright State Office Building 111 N. Seventh Street, Suite 934 St. Louis, MO 63101 (314) 340-7861 Fax (314) 340-7029
IS/Stephen D. Hawke (by permissioru Stepben D. Hawke Assistant Attorney General 1530 Rax Coun Jefferson City, MO 65109 (573) 751-3321 (telephone) (573) 751-5391 (fax) Attorneys for defendants
IslMichael J. Gorla (by Permission) Michael J. Gorla 720 Olive Street, Suite 1630 St. Louis, Missouri 63101
Is/ChristQPher E. McGraugb (by pennission) Christopher E. McGraugb Leritz, Plunkert & Bruuing, P.C. One City Center, Suite 2001 St. Louis, Missouri 63101 Attorneys for plaintiff
5

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 15 of 18
SO ORDERED this __ day of_ _-", 2005. Donald J. Stohr District Judge United States District Court Eastern District of Missouri
6

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 16 of 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON, Plaintiff,
vs. LARRY CRAWFORD, et aI.,
Defendants.

)

)

)

)

)

Case No. 4:04CVI015 DJS

)

)

)

)

JOINT PROPOSED SCBEDtrLlNG PLAN'

COMES NOW plaintiffTimothy Johnston and defendants Larry Crawford, DonaldP. Roper,

and James Purkett, by and through counsel, and hereby submit their joint proposed scheduling plan

in response to the Order ofthis Court dated June 22, 2005:

(a) The track assignment (Track 3) is appropriate.

(b) The joinder of additional parties or amendment of pleadings shall be completed by

November 14,2005.

(c) The parties propose the following discovery plan:

(i) The parties will provide initial disclosure pursuant to Rule 26(a)(I),

Fed.R.Civ.P., by October 17, 2005.

(ii) Discovery shall not be conducted in phases or limited to certain issues.

(iii) Plaintiff shall disclose his expert witnesses' identities and reports by

December 5, 2005, and shall make available said experts for deposition by

January 3,2006. Defendants shall disclose any expert witnesses and reports

'The dates reflected in this scheduling plan are for the trial ofthe merits of this case. In light of the Missouri Supreme Court's setting of August 31, 2005 as plaintiffs execution date, the selection of these dates does not foreclose plaintiff's request for a temporary restraining order.
Respondent's Exhibit 2

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 17 of 18
by February 6, 2006, and shall make said experts available for deposition by March 6, 2006. (iv) The presumptive limits often (10) depositions per side and twenty-five (25) interrogatories shall apply in this case. (v) The parties do not anticipate that any physical or mental examination of the parties will be requested pursuant to Rule 35, Fed.R.Civ.P. (vi) All discovery in this case will be completed by April 3, 2006. (vii) The parties are not aware ofany other matters pertinent to the completion of discovery in this case. (d) The parties do not believe that the referral of the action to mediation or early neutral evaluation will be productive. (e) All dispositive motions, including motions for summaryjudgment, shall be filed no later than April 17, 2006. Briefs in opposition shall be filed within twenty-five (25) days, and any reply briefS shall be filed within seven (7) days thereafter. (f) .The earliest date by which this case should be ready for trial is June 26, 2006. (g) The parties anticipate 3 to 4 days to try this case to verdict. (h) The parties are not aware of any other matters deemed appropriate for inclusion in this Joint Scheduling Plan.
2

Case 4:04-cv-01075-CAS Document 64 Filed 08/17/2005 Page 18 of 18

lsi Christopher E. McGraugh Christopher E. McGraugh, #25278 Leritz, Plunkert & Bruning, P.C. One City Center, Suite 200 I St. Louis, Missouri 6310 I (314) 231-9600 (314) 231-9480 - Facsimile E-mail: cmcgraugh@leritzlaw.com
lsi Denise G. McElvein (by permission) Denise G. McElvein Assistant Attorney General 720 Olive Street, Suite 2150 St. Louis, Missouri 63101 (314) 340-7861 (314) 340-7029 - Facsimile

Respectfully submitted,
lsi Michael J. Gorla Michael J. Gorla, #3251 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 (314) 621-1617 (314) 621-7448 - Facsimile E-mail: mjgorla@msn.com
Counsel for Plaintiff
lsi Stephen D. Hawke (by permission) Stephen D. Hawke Assistant Attorney General 1530 Rax Court Jefferson City, Missouri 65109 (573) 751·3321 (537) 751-5391 - Facsimile
Counsel for Defendants

3

 
 Case 4:04-cv-01075-CAS Document 65 Filed 08/18/2005 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON, Plaintiff,
vs. LARRY CRAWFORD, et al.,
Defendants.

)

)

Case No. 4:04CV1075 DJS

)

)

THIS IS A CAPITAL CASE

)

)

PLAINTIFF’S EXECUTION IS SET

)

FOR AUGUST 31, 2005

)

)

HEARING REQUESTED

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

COMES NOW plaintiff, Timothy Johnston, by and through counsel, Michael J. Gorla and

Christopher E. McGraugh, and moves this Court to issue its temporary restraining order, and

preliminary injunction staying plaintiff’s execution and enjoining the defendants, and any persons

in privity with them, from executing plaintiff under Missouri’s existing lethal injection procedure.

In support of this motion, plaintiff states as follows:

1. In the instant § 1983 action, plaintiff asserts that the defendants, acting under color

of state law, will violate his Eighth Amendment rights by executing him under Missouri’s current

lethal injection protocol. More specifically, plaintiff alleges that Missouri’s three chemical lethal

injection procedure, and the methods employed by defendants to administer said procedure,

including the use of untrained and unqualified personnel, will subject him to a painful and protracted

death.

2. Plaintiff’s § 1983 suit has been active in the district court since August 16, 2004.

Discovery is ongoing and the case is winding it’s way through the district court on the normal path

of a Track 3 - complex case (disposition within 24 months of filing).

Case 4:04-cv-01075-CAS Document 65 Filed 08/18/2005 Page 2 of 3

3. On August 1, 2005, the Missouri Supreme Court set plaintiff’s execution for August 31, 2005.
4. Plaintiff seeks a temporary restraining order and preliminary injunction enjoining the defendants from executing him under Missouri’s current lethal injection protocol so that the District Court can resolve the merits of the constitutional claims raised in this case.
5. As fully detailed in plaintiff’s supporting memorandum filed contemporaneously with this motion, the balance of equities so favors plaintiff that justice requires the Court to intervene to preserve the status quo and give plaintiff the opportunity to litigate his compelling constitutional claim that Missouri current lethal injection protocol under which defendants intend to execute plaintiff would subject him to a painful and protracted death in violation of the Eighth Amendment.
WHEREFORE, for each and all of the foregoing reasons and the reasons contained in plaintiff’s accompanying memorandum in support, plaintiff prays the Court to issue its temporary restraining order and preliminary injunction enjoining the state from executing him under Missouri’s current lethal injection protocol so as to give him an opportunity to litigate the compelling constitutional claims raised in his § 1983 suit.
Respectfully submitted,

/s/ Christopher E. McGraugh Christopher E. McGraugh, #25278 Leritz, Plunkert & Bruning, P.C. One City Center, Suite 2001 St. Louis, Missouri 63101 (314) 231-9600 (314) 231-9480 - Facsimile E-mail: cmcgraugh@leritzlaw.com

/s/ Michael J. Gorla MICHAEL J. GORLA, #3251 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 (314) 621-1617 (314) 621-7448 - Facsimile E-mail: mjgorla@msn.com
Counsel for Plaintiff

2

Case 4:04-cv-01075-CAS Document 65 Filed 08/18/2005 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on August 18, 2005, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court’s electronic filing system upon the following: Ms. Denise G. McElvein, Assistant Attorney General, Attorney for Defendants Crawford, Roper, and Purkett, Wainwright State Office Building, 111 N. 7th Street, Suite 934, St. Louis, Missouri 63101; I hereby certify that on August 18, 2005, the foregoing was served via facsimile at (573) 7515391 and by United States Postal Service to the following non-participants in Electronic Case Filing: Mr. Stephen D. Hawke, Assistant Attorney General, 1530 Rax Court, Jefferson City, Missouri 65109.
/s/Michael J. Gorla MICHAEL J. GORLA, #3251 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 (314) 621-1617 (314) 621-7448 - Facsimile E-mail: mjgorla@msn.com
3

 
 Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 1 of 15

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON, Plaintiff,
vs. LARRY CRAWFORD, et al.,
Defendants.

)

)

)

Case No. 4:04CV1075 DJS

)

)

THIS IS A CAPITAL CASE

)

)

PLAINTIFF’S EXECUTION IS SET

)

FOR AUGUST 31, 2005

)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

COMES NOW plaintiff, Timothy Johnston, by and through counsel, Michael J. Gorla and

Christopher E. McGraugh, and submits the following memorandum of law in support of plaintiff’s

motion for temporary restraining order and preliminary injunction.

Procedural History

Petitioner filed the instant claim under 42 U.S.C. § 1983 on August 16, 2004, alleging that

Missouri’s specific method of lethal injection under which he is going to be executed would violate

his Eighth Amendment right to be free from cruel and unusual punishment. More specifically,

plaintiff alleged that Missouri’s current three chemical lethal injection procedure and the methods

employed by the defendants to implement the same, including the use of unqualified and untrained personnel, would subject him to a painful and protracted death.1

The case was originally assigned to United States District Judge Stephen N. Limbaugh.

Shortly after receiving this assignment, Judge Limbaugh recused himself from the case and the

matter was reassigned to United States District Court Judge Donald J. Stohr. This matter has been

1Doc. #1.

Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 2 of 15
pending before Judge Stohr since October 5, 2004, winding it’s way through his Court on the normal path of a Track 3 - complex case.
In June of 2005, Judge Stohr made significant rulings in the case. On June 13, 2005, Judge Stohr denied defendants’ motion to dismiss.2 Subsequently on June 23, 2005, Judge Stohr sustained, for the most part, plaintiff’s motions to compel defendants’ answers to his first set of interrogatories.3 He also ordered the parties to confer and attempt to craft a protective order limiting the use and disclosure of the identities of corrections personnel involved in the execution process. He directed that the defendants’ answer plaintiff’s first set of interrogatories within twenty (20) days after the Court’s entry of a protective order.4 On June 22, 2005, Judge Stohr assigned the case to a Track 3 - complex schedule, and ordered the parties to prepare a joint proposed scheduling plan.
On August 1, 2005, the Missouri Supreme Court set plaintiff’s execution for August 31, 2005. On that same date, the parties filed an agreed protective order limiting the use and disclosure of the identities of corrections personnel involved in executions, and a joint proposed scheduling plan. The protective order was approved by the Court on August 3, 2005,5 making defendants’ answers to plaintiff’s first set of interrogatories due on August 23, 2005.
Because of the scheduled execution date, plaintiff filed a motion on August 5, 2005 seeking an order expediting discovery in this case and ordering defendants to answer plaintiff’s
2Doc. #33. 3Doc. #37. 4Id. 5Doc. #45.
2

Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 3 of 15
interrogatories within five (5) days.6 In said motion, plaintiff informed the Court that he was planning on filing an application for temporary restraining order and preliminary injunction, and needed the answers to the interrogatories in order to prepare the same. The defendants responded by filing on August 8, 2005, a motion to expedite the hearing on the merits seeking a hearing on August 10, 11 or 12, 2005.7 On August 8, 2005, the Court issued its order expediting discovery and ordering defendants to answer plaintiff’s interrogatories no later than August 13, 2005.8 In that same order, the Court denied defendants’ motion to expedite the hearing. Defendants provided plaintiff with their answers to his first set of interrogatories on August 12, 2005.
On August 16, 2005, defendants filed a motion for summary judgment along with a memorandum in support thereof.9 On that same day, defendants also filed a motion seeking to shrink plaintiff’s time to respond to said motion from twenty (20) days to five (5) days, and sought a hearing on their motion for summary judgment on August 23, 2005.10 On August 18, 2005, plaintiff filed his motion in opposition to defendants’ motion to expedite.11 Said matter is currently under submission to the Court.
On this day, plaintiff has filed his motion for temporary restraining order and preliminary injunction, and submits this memorandum in support of his position that this Court should enjoin
6Doc. #46. 7Doc. #47. 8Doc. #49. 9Docs. #58, 59. 10Doc. #60. 11Doc. #61.
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Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 4 of 15
the state from executing him under it’s current lethal injection protocol so as to give him the opportunity to litigate the merits of his constitutional claim.
Standard for Granting a Preliminary Injunction The standard for grating a preliminary injunction is set out in Dataphase Systems, Inc. v. CL Systems, Inc..12 The base question is “Whether the balance of equities so favors the movant that justice requires the Court to intervene to preserve the status quo until the merits are determined..13 In balancing the equities, the relevant factors to be considered are: “(1) [T]he threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.”14 Neither of these factors, including the probability of success, is determinative in and of itself as to whether a preliminary injunction should issue. The probability of success on the merits must be viewed in “context with the relative injuries to the parties and the public.”15 Where the balance of other factors “tips decidedly” toward the movant “a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation.”16 Consideration of the relevant factors set out in the Dataphase case show that plaintiff is entitled to the issuance of a temporary restraining order and preliminary injunction because the
12640 F.2d 109 (8th Cir. en banc 1982). 13Id. at 113. 14Id. at 114. 15Id. at 113. 16Id.
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Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 5 of 15
balance of factors tip decidedly in his favor, and he has raised questions so serious and difficult as to call for more deliberate investigation.
The Threat of Irreparable Harm to the Plaintiff Is Grave In the absence of a temporary restraining order and preliminary injunction staying his execution, movant will be irreparably harmed in that he will be executed under Missouri’s current lethal injection protocol, one that creates an unjustifiable risk that he will suffer a painful and protracted death. Movant will be subjected to a three chemical sequence using unnecessarily painful methods administered by unqualified personnel who lack the ability to monitor and insure that his execution will meet constitutional standards. A description of Missouri’s current method of execution under which they intend to execute Mr. Johnston, as well as the lack of qualifications of the personnel implementing the same, is fully described in the section of this memorandum dealing with the probability of success on the merits.17 In an effort to avoid duplication, plaintiff refers the Court to that section of his memorandum.
The Irreparable Harm Resulting to Plaintiff is Significantly Greater than the Harm Resulting to Defendants from the Issuance of the Injunction
Granting the preliminary injunction will have little or no effect on the defendants. The defendants will still get to execute plaintiff if the defendants ultimately prevail on the merits of this case. The disadvantage to defendants is that plaintiff’s execution will be delayed. This pales in comparison to the harm that plaintiff will sustain absent the issuance of a temporary restraining order and preliminary injunction - a painful and protracted death.
17Infra p. 6-13. 5

Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 6 of 15
There is a Reasonable Probability of that Plaintiff Will Prevail on the Merits As stated in the complaint, defendants intend to execute Mr. Johnston with unreliable and arbitrary drugs, administered by inadequately trained personnel using inappropriate equipment and arbitrary methods to cause him a pain and protracted death. The limited discovery that has been provided to plaintiff shows that these allegations will likely find their mark. Defendants intend to execute plaintiff by using a three chemical sequence involving sodium pentothal (thiopental), pancuronium bromide, and potassium chloride. The procedure is designed to work as follows: the thiopental, an ultra-short acting barbiturate, will render the prisoner unconscious, the pancuronium bromide will stop his lungs, and the potassium chloride will stop his heart. The humane aspect of this procedure will necessarily fail if the thiopental - whatever the dosage - is not properly delivered to the prisoner. Neither the pancuronium bromide nor the potassium chloride has anesthetic or sedative properties while both will cause the prisoner to suffer excruciating pain.18 Pancuronium bromide is a neuromuscular blocking agent which has the effect of paralyzing all voluntary motions but does not effect sensation, consciousness, or the ability to feel pain and suffocation. Pancuronium bromide renders a person completely paralyzed so that no voluntary movement of any kind can be achieved. Pancuronium bromide will paralyze the muscles that will enable an individual to breath, and will cause a person to slowly suffocate. Due to it’s blocking effect, pancuronium bromide will prevent the prisoner from expressing that he was conscious and suffering.19 In fact, the 2000 report of the American Veterinary Medical Association opines that the
18See Aff. Mark Heath, M.D., ¶¶ 29, 40, 42. 19Id. at ¶¶ 27-29.
6

Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 7 of 15
combination of a barbiturate with a neuromuscular blocking agent is not an acceptable euthanasia agent.20
The intravenous administration of the third drug in Missouri’s chemical sequence, concentrated potassium chloride, is extremely painful absent proper anesthetic sedation. It activates the sensory nerve endings in the veins as it travels to the heart, causing an excruciating burning sensation.21 There are many possible alternative drugs that are equally effective in causing cardiac arrest but do not cause such pain.22 The administration of potassium chloride will activate the nerve endings of his veins causing intense pain as it travels to his heart will cause him a massive and painful heart attack.23 Missouri’s Use of the Femoral Vein to Gain IV Access is Unnecessary and Painful
Beginning with the procedure used to gain intravenous access, the methods employed by Missouri to implement it’s three chemical sequence do not contain proper safeguards to insure that the prisoner is properly anesthetized prior to the administration of pancuronium bromide and potassium chloride first. The drugs will be administered intravenously through an IV started in his femoral vein using a device called a triple lumen catheter. Insertion of this device in his femoral vein is a sophisticated surgical procedure which will cause Johnston unnecessary pain and suffering and will, in and of itself, violate his right to be free from cruel and unusual punishment.
20Id. at ¶¶ 36, 38. 21Id. at ¶¶ 41, 42. 22Id. at ¶ 43. 23Id. at ¶¶ 41, 42.
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Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 8 of 15
As detailed in the affidavit of Jonathan I. Groner, M.D., a board-certified general surgeon who is the Trauma Medical Director of Children’s Hospital in Columbus, Ohio and a Clinical Associate Professor of Surgery at the Ohio State University College of Medicine and Public Health, the insertion of femoral central lines to gain IV access can be extremely painful. Specifically, the technique “involves inserting a large needle directed to an anatomic landmark in order to puncture the vein. Once the vein is punctures, a wire is passed into the vein, then a scalpel is used to make a small incision where the guidewire enters the skin, then the catheter is passed over the guidewire and into the vein.”24 The defendants’ use of a triple lumen catheter exacerbates matters.
Triple lumen catheters are highly sophisticated metal devices and has three separate channels, approximately 15 cm longer than a standard peripheral IV.25 According to Dr. Groner, the use of a femoral central lumen catheter creates a substantial risk of inflicting severe and unnecessary pain and suffering.26 The femoral vein lies close in proximity to the femoral artery and femoral nerve. Even if local anesthesia is used in the skin at the puncture site, accidental puncture of the artery and/or accidental puncture of the femoral nerve would be excruciatingly painful. The same will hold true “if the needle passes through the vein and strikes the bones in the pelvis which lie below the vein.”27 In paragraph 16 of his affidavit, Dr. Groner lists numerous complications involved in obtaining IV access through the femoral vein. Said complications include “severe pain; hemorrhage/hematoma at the catheter site; unrecognized arterial catheter placement; catheter tip
24Aff. Jonathan I. Groner, ¶ 13 (August 18, 2005). 25Id. at ¶ 21. 26Id. at ¶ 22. 27Id. at ¶ 13.
8

Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 9 of 15
malposition, in which case the catheter tip lies outside the vein; air embolism resulting in sudden death; hemorrhage into the abdomen; and femoral arterial inclusions, causing severe leg pain; and perforation of the heart by the medical guidewire used in the catheter insertion procedure.” Two of the above-described complications - unrecognized arterial catheter placement and catheter tip malposition - make Missouri’s lethal injection process exceedingly painful because the drugs would flow down the leg instead of the heart and brain, and be absorbed slowly, causing a slow, tortuous death.
Defendants’ proffer no reason for establishing IV access through a femoral vein and using a triple lumen catheter to deliver the drugs. Access can be gained by the insertion of the standard peripheral IV. According to Dr. Groner, a peripheral IV is the preferred procedure unless “the patient has absolutely no visible veins; the patient is in shock and the peripheral veins are collapsed or inaccessible; or the patient needs venous pressure monitoring during an operation.”28 Femoral line insertions are dangerous and uncomfortable procedures to be performed only in dire situations and in a rare case where there are absolutely no veins for the standard peripheral IV.29 The use a femoral central line and the insertion of a triple lumen central catheter at said site will subject plaintiff to unnecessary pain and suffering in violation of his Eighth Amendment rights.30

28Id. at ¶ 17. 29Id. at 18. 30See, e.g., Nelson v. Campbell,

U.S. , 124 S.Ct. 2117 (2004). 9

Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 10 of 15
Missouri’s Protocol Does Not Provide for any Monitoring of IV Site Under Missouri’s execution protocol, the executioners are in an adjacent room during the
execution. While they can see the prisoner, they can’t see the IV site.31 Most likely, the IV site is hidden by the prisoner’s pants. As a result, the executioners have no way of knowing whether or not the IV is leaking or whether there are any developing complications at the IV site. A leaking or malfunctioning IV which fails to properly dispense the thiopental creates a reasonable likelihood that the prisoner will conscious during the painful administration of pancuronium bromide and potassium chloride.32 Missouri’s Protocol Does Not Provide Any Monitoring of the Level of Anesthesia
Whenever a medical professional uses a barbiturate with a neuromuscular blocking agent, such as pancuronium bromide, it is essential that a qualified medical person monitor anesthetic depth prior to the administration of the blocking agent. The reason for this is that the blocker places a chemical veil over the individual, paralyzing him and making it impossible for a witness to make a meaningful determination as to whether or not the execution is being conducted without the infliction of pain.33
Missouri’s current lethal injection protocol contains no provision for the monitoring of a prisoner’s level of anesthesia prior to the administration of pancuronium bromide. Because of the paralyzing effect of pancuronium bromide, the prisoner’s anesthetic depth cannot be verified by the eye alone. Necessary monitoring equipment, such as an EKG and blood pressure cuff, would have
31See deft. Purkett’s interrog. ans. No. 6. 32Aff. Heath ¶ 23. 33Id. at ¶ 32.
10

Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 11 of 15
to be present and used under the supervision of an individual trained to assess anesthetic depth in order to be effective. The failure of the defendants to verify “anesthetic depth prior to the administration of pancuronium bromide and later prior the administration of potassium chloride constitutes an unacceptable risk that the inmate will be conscious during the execution, and will experience excruciating torments of conscious paralysis and intravenous concentrated potassium chloride.34 The Qualifications of Involved Corrections Personnel is Highly Suspect
The qualification and training of the corrections personnel involved in the execution process is critical to insure that the prisoner’s execution is within the confines of the Eighth Amendment. Preparation of drugs, particularly for intravenous use, is a technical task requiring significant training in pharmaceutical concepts and calculation.35 According to Larry Crawford, the Director of the Missouri Department of Corrections in charge of executions, the drugs used for execution are prepared and mixed by a physician and a nurse approximately one hour before the execution. The great majority of nurses are not trained in the use and preparation of ultra-short acting barbiturates such as thiopental. This class if drugs is traditionally used only by nurses who have significant experience in intensive care units and by nurse anesthetists.36 The scant information disclosed by the defendants about the qualifications, training, and experience of the nurse and doctor involved in the execution process is insufficient to insure that they are qualified to work with the chemicals used in the lethal injection process. Further investigation is necessary regarding their training,
34Id. at ¶ 49. 35Id. at ¶ 53. 36Heath Aff, ¶ 55.
11

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credentials, and experience to see if, in fact, they are properly qualified to work with anesthetizing drugs.
According to defendant Crawford’s answers to plaintiff’s interrogatories, the last three corrections employees who acted as executioners had degrees, respectively, in mathematics, criminal justice administration, and a masters in criminal justice with an undergraduate in management.37 Although plaintiff has learned through interrogatories that a doctor provides direction to the executioners during the execution process, plaintiff has not been told the nature of said directions.
The information about the doctor is just as vague as the information given about the executioners. Other than where he graduated from college, attended medical school, and completed is residency, all plaintiff knows is that he is a board-certified surgeon. Plaintiff was not told what type of surgery the doctor is certified to perform. In addition, plaintiff has not been provided with any information regarding the doctor’s experience in the placement of femoral central lines. According to Dr. Groner, placement of a femoral venous central line and the insertion of a triple lumen venous catheter is a sophisticated operation that is performed by specialists and that many surgeons would not know how to do this procedure.38
Given the affidavits of Drs. Heath and Groner, and Missouri’s current lethal injection procedure, specifically, it’s unnecessary and painful use of the femoral vein to gain IV access, the failure of corrections personnel to monitor the level of anesthesia prior to the administration of pancuronium bromide and potassium chloride, their failure to monitor the IV site, and the total lack of medical training or qualifications of the executioners, a reasonable probability exists that plaintiff
37See deft. Crawford’s interrog. ans., No. 3(f). 38Groner Aff. ¶¶ 14-15.
12

Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 13 of 15
will prevail on the merits of this case. At the very least, plaintiff has raised serious, substantial, and difficult questions which call for a more deliberate and extensive investigation. Plaintiff should be allowed to avail himself of the normal avenues of discovery normally available to a § 1983 plaintiff who raises a justiciable claim, and allowed to prosecute his case.
The Public Interest The state concededly has a public interest in proceeding with it’s criminal judgments, including sentences of death, in a timely manner. Besides the likelihood of success on the merits and the relative harms to the parties, the Court also considers whether the prisoner has delayed unnecessarily in bringing his claim in making it’s determination of whether or not to enjoin an execution. It is clear that petitioner’s § 1983 action does not fall into that category of cases. This was not a last minute filing. Petitioner filed this instant action on August 16, 2004, when it became apparent that his other state and federal remedies had been or were about to be exhausted. It was only at that time that a challenge to Missouri’s specific method of execution was ripe.39 Up to that point, the state was free to alter or modify it’s execution protocol. Additionally, this case was filed within months of the United States Supreme Court decision in Nelson v. Campbell.40 The Nelson decision, issued on May 24, 2004, was the first case which suggested that suits challenging specific methods of execution as being cruel and unusual in violation of the Eighth Amendment could be brought in a civil rights action under § 1983. Petitioner filed his claim within three months of the Nelson decision
39See Worthington v. Missouri, 2005 WL 274385 *13, n.3 (Mo.banc Aug. 2, 2005). 40124 S.Ct. 2117 (2004).
13

Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 14 of 15
Further, the public has an interest in determining whether lethal injections are fairly and humanely administered.41 Given the fact that plaintiff filed this action a year ago at a time when it became apparent that his state and federal habeas remedies were exhausted, and within less than three (3) months of the Supreme Court’s issuance of the Nelson decision, the public’s interest in insuring that executions are humanely administered trumps the interest of the state. The public interest favors the issuance of a preliminary injunction enjoining the defendants from executing plaintiff under it’s current specific method of execution.
Conclusion As explained by the Eighth Circuit in the Dataphase case, a movant seeking preliminary relief does not have to show “greater than a 50 percent likelihood that he will prevail on the merits.”42 A preliminary injunction may issue where the balance of the other equities tips decidedly in favor of a movant in a situation where movant has raised questions so serious and difficult as to call for more deliberate investigation. Plaintiff has clearly met the standard and, accordingly, is entitled to a temporary restraining order and preliminary injunction enjoining the defendants from executing him under Missouri’s current lethal injection protocol until the resolution of his constitutional claims.
41See California First Amendment v. Woodford, 299 F.3d 868, 876 (9th Cir 2002). 42Dataphase, 640 F.2d at 113.
14

Case 4:04-cv-01075-CAS Document 66-1 Filed 08/18/2005 Page 15 of 15

Respectfully submitted,

/s/ Christopher E. McGraugh Christopher E. McGraugh, #25278 Leritz, Plunkert & Bruning, P.C. One City Center, Suite 2001 St. Louis, Missouri 63101 (314) 231-9600 (314) 231-9480 - Facsimile E-mail: cmcgraugh@leritzlaw.com

/s/ Michael J. Gorla MICHAEL J. GORLA, #3251 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 (314) 621-1617 (314) 621-7448 - Facsimile E-mail: mjgorla@msn.com
Counsel for Plaintiff

CERTIFICATE OF SERVICE
I hereby certify that on August 18, 2005, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court’s electronic filing system upon the following: Ms. Denise G. McElvein, Assistant Attorney General, Attorney for Defendants Crawford, Roper, and Purkett, Wainwright State Office Building, 111 N. 7th Street, Suite 934, St. Louis, Missouri 63101;
I hereby certify that on August 18, 2005, the foregoing was served via facsimile at (573) 7515391 and United States Postal Service to the following non-participants in Electronic Case Filing: Mr. Stephen D. Hawke, Assistant Attorney General, 1530 Rax Court, Jefferson City, Missouri 65109.
/s/Michael J. Gorla MICHAEL J. GORLA, #3251 720 Olive Street, Suite 1630 St. Louis, Missouri 63101 (314) 621-1617 (314) 621-7448 - Facsimile E-mail: mjgorla@msn.com

15

 
 Case 4:04-cv-01075-CAS Document 83 Filed 08/24/2005 Page 1 of 2

MICHAEL E. GANS Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
THOMAS f. EAGLETON COURT HOUSE ROOM 24.329
111 $, 10TH STREET
ST.lOUIS, MISSOURI 63102
August 23, 2005

VOICE 13141 244-2400 FAX (314] 244·2180
www.ca8.uscourts.gov

Ms. Gail Yastexling ATTORNEY GENERAL'S OfFICE P.O. Box 899 221 W. High Stxeet Jeffexson City, Me 65102

Re: 05-3228 In Re Laxxy Cxawfoxd vs.

Deax Counsel:

Enclosed is a copy of an oxdex entexed today in the above case at the dixection of the couxt. The mandate is enclosed to the Clexk of the United States Distxict Couxt, togethex with a xeceipt to be completed and xetuxned to this office fox filing.

(5009-010199)

Sincexely,

et ~.. -<.. /i,'_?~

_1
01. iJ Mich

a

f
el

Ir ''7
i.

(]?}~2---
G:ls

Clexk of Couxt

mex

Enclosuxe( s)

cc: Honoxable Donald J. Stohx, U.S. Distxict Judge Denise Gaxxison McElvein Chxistophex Edwaxd MoGx3ugh Michael J. GoIla James G. Woodwaxd, Clexk

Distxict Couxt/Agency Case Numbex(s): 4:04-cv-1075 DJS

Case 4:04-cv-01075-CAS Document 83 Filed 08/24/2005 Page 2 of 2
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 05·3228

•

In re: Donald P. Roper.

•

Superintendent. Potosi Correctional·

Center; James Purkett.

•

Superintendent. Eastern Reception, •

Diagnostic and Correctional Center;·

Larry Crawford,

•

•

Petitioners.

•

Petition for Writ of Prohibition

Petition fOr writ of prohibition has been considered by the court and is denied. (5360·010199)
August 23. 2005

Order Entered at the Direction of the Court:
I2tich~J(~
Clerk. U.S. Court of Appeals, Eighth Circuit.
A 1RCE COPY CF TI-:E ORIGINAL MlCH.'cE~ E G.'L"~. CLER!\: UNITED STX'''S COC'''T Of APPEALS
:~~ E ilt~X~(J¥~

 
 Case 4:04-cv-01075-CAS Document 92 Filed 08/25/2005 Page 1 of 2

MICHAEL E. GANS
Clerk of Court

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
THOMAS F, EAGLETON COURT HOUSE ROOM 24,329
" , S. 'OTH STREET ST. LOUIS, MISSOURI 63102
AUgust 26, 2005

VOICE ,3'41244·2400 FAX 13'41 244-2780
www.ca8.uleourt8.gov

Ms. Gail vasterling ATTORNEY GENERAL'S OFFICE P.O. Box 899 221 W. High Street Jefferson City, MO 65102
Re: 05-3228 In Re Larry Crawford vs. Dear Counsel:
Enclosed is a copy of an order entered today in the above case at the direction of the court. ( 5009-010199)
Sincerely,

srd Enclosure(s) cc: Honorable Donald J. Stohr, U.S. District Judge
Denise Garrison McElvein Christopher Edward MCGraugh Michael J. Gorla James G. Woodward, Clerk
District Court/Agency Case Number(s): 4:04-cv-1075 DJS

Case 4:04-cv-01075-CAS Document 92 Filed 08/25/2005 Page 2 of 2

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

FILED

No. 05-3228

In xe: Donald P. Ropex,

*

Supexintendent, Potosi Coxxectional*

Centex; James PuxKett,

*

Supexintendent, Eastexn Reception, *

Diagnostic and Coxxectional Centex;*

Laxxy Cxawfoxd,

•

•

Peti tionexs.

•

•

AUG 261005
MICHAEL GANS CLERK OF COURt
Oxdex Denying Petition fox Reheaxing and fox Reheaxing En Banc

The petition fox xeheaxing en banc is denied. The petition fox xehearing by the panel is also denied.
Judge Benton tooK no paxt in the considexation ox decision of this mattex. ( 5128·010199)

August 26, 2005

Order ~Jr~dr~e Court:
ClerK, u.s. Couxt of Appeals, Eighth Cixcuit

 
 Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY JOHNSTON,
Plaintiff,
v.
LARRY CRAWFORD, DONALD P. ROPER, JAMES PURKETT, and UNKNOWN EXECUTIONERS,
Defendants.

)

)

)

)

)

No. 4:04-CV-1075 CAS

)

)

)

)

)

)

)

MEMORANDUM AND ORDER

Plaintiff Timothy Johnston is sentenced to death for the first-degree murder of his wife. On

or about August 1, 2005, the State of Missouri scheduled plaintiff’s execution by lethal injection for

August 31, 2005. On August 16, 2004, at which time plaintiff’s execution had not been scheduled,

he filed the instant complaint pursuant to 42 U.S.C. §1983 challenging the constitutionality of

Missouri’s method of lethal injection. More specifically, plaintiff alleges that Missouri’s three-

chemical lethal injection sequence, using serial administration of sodium pentothal (variously called

thiopental sodium), pancuronium bromide (pavulon), and potassium chloride, and the method of these

drugs’ use by inadequately trained personnel create an unjustifiable likelihood that during his

execution he will be conscious of the pain of chemically-induced suffocation and heart attack, but

incapable of demonstrating that consciousness due to chemically-induced paralysis, in violation of the

Eighth Amendment’s prohibition on cruel and unusual punishment.

Now before the Court is plaintiff’s motion for temporary restraining order and preliminary

injunction, seeking a stay of execution pending the outcome of the merits of the case under the

Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 2 of 11
existing Case Management Order. Also before the Court is defendants’ motion for summary judgment. The motions are fully briefed and an evidentiary hearing was held before the undersigned on Friday, August 26, 2005.
The governing constitutional standards are not in dispute. The Eighth Amendment prohibits punishments that are “incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’” Estelle v. Gamble, 429 U.S. 97, 102 (1976). With respect to executions, the Eighth Amendment prohibits “the unnecessary and wanton infliction of pain,” as well as methods involving torture or a lingering death. See Gregg v. Georgia, 428 U.S. 153, 173 (1976); In re Kemmler, 136 U.S. 436, 447 (1890). Within the meaning of “cruel and unusual punishment,” “[‘cruel’] implies there is something inhuman or barbarous, something more than the mere extinguishment of human life.” Kemmler, 136 U.S. at 447.
Where the State is carrying out an otherwise lawful execution, the resulting death is not itself a prohibited harm: “The ‘harm’ of [plaintiff’s] death flows from [his] crimes and the sentence imposed by the state rather than from the method the state has chosen to execute the sentence.” Reid v. Johnson, 333 F.Supp.2d 543, 550 (E.D. Va. 2004). “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947).
The risk of pain and suffering attributable to the speculative possibility of human error or negligence, as is inherent in any human endeavor, is also “excludable from the calculus of likely harm.” Id. (citing Campbell v. Wood, 18 F.3d 662, 668 (9th Cir. 1994)); see also Estelle, 429 U.S. at 105. “The Supreme Court has rejected Eighth Amendment challenges based on an ‘unforeseeable
2

Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 3 of 11
accident.’” Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005) (citing Louisiana ex rel. Francis, 329 U.S. at 464).
In determining whether preliminary injunctive relief should be granted, the Court must consider four well-established factors: (1) the threat of irreparable harm to the plaintiff; (2) the balance of harms between the parties as to granting the injunction or not granting the injunction; (3) the probability of plaintiff’s success on the merits; and (4) the public interest. Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 112 (8th Cir. 1991). In the Court’s view, the balance of the harms does not militate for or against preliminary injunctive relief. Although plaintiff has a strong interest in the avoidance of an unduly painful death, the State’s interest in the timely carrying out of its lawfully-imposed sentence is well-recognized. “In capital cases, the Supreme Court has instructed that ‘[e]quity must take into consideration the State’s strong interest in proceeding with its judgment.’” Beardslee, 395 F.3d at 1068 (quoting Gomez v. U.S. Dist. Court, 503 U.S. 653, 654 (1992)). “It is well settled that the state has ‘a significant interest in meting out a sentence of death in a timely fashion.’” Reid, 333 F.Supp.2d at 551-52 (quoting Nelson v. Campbell, 124 S. Ct. 2117, 2123 (2004)).
The public interest is similarly balanced, in that the public is served both by the avoidance of Eighth Amendment violations in the execution of sentences, but also by the avoidance of undue delay in the execution of sentences. Where “lengthy state and federal proceedings reviewing the conviction and sentence have run their course...the state and the victims of crime can expect the moral judgment of the state to be carried out without delay.” Reid, 333 F.Supp.2d at 552.
The threat of irreparable harm and the likelihood of success on the merits are the predominant factors in the Court’s stay-of-execution analysis, and are here considered in tandem. Although the
3

Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 4 of 11
threatened harm alleged by the plaintiff would be irreparable at law for obvious reasons, plaintiff fails to make a clear or persuasive showing as to the threatened harm, either as to the likelihood that it will occur or how severe it would be even assuming a flawed administration of anesthesia. The likelihood that plaintiff can succeed on the merits of his claim is also so low as to require the denial of a temporary restraining order or preliminary injunction.
As to both irreparable harm and likelihood of success, the Court has carefully considered the factual and medical evidence submitted with the parties’ briefs and adduced at the evidentiary hearing. Plaintiff’s evidence is inadequate to demonstrate that Missouri’s execution protocol would subject him to the unnecessary and wanton infliction of pain, torture or a lingering death. Plaintiff’s evidence suggests only a possibility, rather than a probability, that he may remain conscious and sensate long enough to experience pain during his execution. For instance, in the affidavit of Dr. Heath submitted in support of the TRO motion, Dr. Heath opines that “the failure to properly administer the sodium pentothal” would create an unjustifiable risk that a prisoner will be conscious during the remainder of the execution. But as previously noted the ever-present possibility of human error or accident is insufficient to establish a constitutional violation. Louisiana ex rel. Francis, 329 U.S. at 464; see also Estelle, 429 U.S. at 105; Beardslee, 395 F.3d at 1075.
Furthermore, plaintiff’s evidence does not adequately demonstrate the nature or the duration of the possible pain relative to the likely degree of sedation so as to establish that the quantum of pain would violate Eighth Amendment standards. “Traditional deaths by execution, such as by hanging, have always involved the possibility of pain and terror for the convicted person.” Gray v. Lucas, 710 F.3d 1048, 1061 (5th Cir. 1983). The State’s evidence indicates that in the last ten executions, the lapse of time between initial injection and time of death ranged from a low of only three minutes to
4

Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 5 of 11
a high of six minutes in only a single instance, with seven of the prisoners dying within three to four minutes. Defendant Crawford’s Answers to Plaintiff’s First Set of Interrogatories [Doc. #74], #4(g). The record fails to establish any foreseeable probability that the use of the Missouri protocol would result in an execution involving torture or unnecessary pain of unconstitutional magnitude or length.
This is so if plaintiff’s evidence is given full persuasive value. When weighed against defendants’ strong contrary medical evidence, the likelihood of success is further diminished. Before several other courts, death row inmates and other states have relied on the contrary opinions of the same two experts whose opinions are offered in the instant case, and other courts have noted that plaintiff’s expert, Dr. Heath, conceded that the State’s expert, Dr. Dershwitz, possessed greater expertise in the critical area of pharmacokinetics and pharmacodynamics, the study of the time course of medications in the body and the effect of medications in the body. See, e.g., Beardslee, 395 F.3d at 1075; Reid, 333 F.Supp.2d at 547, n.7. Moreover, Dr. Heath conceded in Beardslee that if properly administered, the same 5-gram dosage of sodium pentothal “would likely be sufficient to cause unconsciousness and probably death prior to the administration of pancuronium bromide.” Beardslee, 395 F.3d at 1075.
Dr. Dershwitz’s more persuasive opinions are also more definitive, declaring that “the five gram dose of thiopental sodium (sodium pentothal) would render most people unconscious within a few seconds” and that “[b]y the time all five grams...are injected...over 99.9999999% of the population would be unconscious” and would “stop breathing within a minute of drug administration.” Dershwitz Affidavit [Doc. #59.2], ¶8. By contrast, Dr. Heath opines in his affidavit only that if the thiopental is incorrectly administered, there is a “reasonable likelihood that [a
5

Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 6 of 11
prisoner] will be rendered unconscious for a period of time as short as a few seconds.” Heath Affidavit [Doc. #66.1], ¶23. As in Reid:
There is simply no reason to believe the speculative list of horribles described by [plaintiff] are likely to come to pass. The record establishes that the defendants have taken reasonable measures to eliminate the possibility of human error and to ensure the condemned will experience nothing other than insertion of an intravenous catheter followed by unconsciousness and death. In sum, the likelihood of [plaintiff] suffering irreparable harm from the manner in which the defendants intend to carry out his sentence is so remote as to be nonexistent. [Plaintiff’s] failure to show any likelihood of irreparable harm precludes him from obtaining preliminary injunctive relief. 333 F.Supp.2d at 551. Similarly here, on the record before this Court, plaintiff’s showing as to irreparable harm does not support preliminary injunctive relief. Neither does plaintiff demonstrate the likelihood of success necessary to the granting of a preliminary injunction staying his execution. The TRO motion briefly addresses claims that Missouri’s protocol does not provide for monitoring of the IV site or monitoring of the level of anesthesia such as by use of an EKG and blood pressure monitoring, no right to relief is shown. Defendants’ evidence is that the execution will involve continuous monitoring of plaintiff’s pulse and heartbeat by a Pulse Oximeter and continuous electrocardiograph (EKG). First Supplemental Answers to Plaintiff’s First Set of Interrogatories [Doc. #75], #3(e); Crawford Affidavit [Doc. #59.1], ¶6. Furthermore, lack of monitoring itself causes no harm, but is harmful only tangentially and in proportion to pain or problems which may otherwise arise and go undetected for lack of monitoring. Finally, defendants’ expert offers the opinion that the five grams of thiopental sodium administered first is such a “significant overdose” that it will “produce unconsciousness in more than 99.99999999% of the population and removes the need for such monitoring.” Dershwitz Declaration [Doc. #70.7], ¶8. Plaintiff’s speculative argument therefore fails to demonstrate either a threat of irreparable harm flowing from these causes, or a
6

Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 7 of 11
likelihood of success in showing that the lack of monitoring is itself a violation of the Eighth Amendment prohibition on cruel and unusual punishment.
The same is true of plaintiff’s arguments concerning the qualifications of the doctor and nurse who will prepare the drugs used in the execution. Their qualifications and expertise, even if substandard, are not shown to directly create any appreciable risk of irreparable harm or an execution procedure that violates constitutional norms. Furthermore, the parties’ evidence on the issue creates no genuine dispute of material fact. Plaintiff’s expert opines only that if the doctor and nurse make mistakes, plaintiff may suffer. Heath Affidavit [Doc. #66.1], ¶50. Again, such an argument cannot carry the day under the constitutional jurisprudence of Louisiana ex rel. Francis, 329 U.S. at 464, Estelle, 429 U.S. at 105, and Beardslee, 395 F.3d at 1075. Dr. Heath offers no opinion concerning the qualifications of the particular doctor and nurse who will oversee the preparation of the drugs. By contrast, the State’s expert has reviewed these individuals’ qualifications1 and opines to a reasonable degree of medical certainty that they “are competent to prepare the drugs properly, to insert the intravenous catheter into the femoral vein, and to...oversee corrections personnel regarding other aspects of the lethal injection process.” Dershwitz Declaration [Doc. #70.7], ¶7.
In the TRO motion, plaintiff argues an additional theory for relief, based on allegations concerning the potential pain of the surgical insertion into the femoral vein of the triple lumen catheter for administering the drugs used in lethal injection. Even by the lenient standards of federal notice
1These are set forth in defendant Crawford’s Answers to Plaintiff’s First Set of Interrogatories [Doc. #74] and First Supplemental Answers to Plaintiff’s First Set of Interrogatories [Doc. #75]. Crawford states that the only drug that requires mixing is the thiopental sodium, that the doctor has mixed drugs 30,000 to 40,000 times in his career and that particular drug approximately 1,000 times, and has placed an IV in central lines 20,000 to 30,000 times. See Supplemental Answer #3 [Doc. #75], p.3.
7

Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 8 of 11
pleading, this claim is not pled in the complaint and is not properly asserted for the first time in the motion for a TRO.2 Furthermore, even accepting as true plaintiff’s characterization of the potential pain of the catheterization, the Court finds as a matter of law that no constitutional violation is shown under the applicable Eighth Amendment standards, both because of the mere possibility rather than any probability of the infliction of such pain, and because the possibility is dependent upon mistakes in the procedure involving accidental punctures and other complications not reasonably foreseeable and not constitutionally relevant. Finally, the doctor scheduled to perform the procedure at plaintiff’s execution is a board-certified surgeon, and within the categories of specialists that even plaintiff’s expert identifies as trained in the procedure. First Supplemental Answers to Plaintiff’s First Set of Interrogatories [Doc. #75], #3(e); (1st) Groner Affidavit [Doc. #66.3], ¶15; (2nd) Groner Affidavit [Doc. #81.1], ¶12.
Plaintiff’s motion for temporary restraining order or preliminary injunction staying his execution will therefore be denied. Although based on the evidence adduced in the instant case rather than the precedent of other courts, this conclusion is similar to that of the Ninth Circuit in Beardslee, the Sixth Circuit in In re Lewis Williams, Jr., 359 F.3d 811 (6th Cir. 2004), and the district court and the Ninth Circuit in Cooper v. Rimmer, 379 F.3d 1029, 1031 (9th Cir. 2004); No. C 04 436 JF, 2004 WL 231325 at *4 (N.D. Cal. 2004), which found that the plaintiff had “done no more than raise the possibility that California’s lethal-injection protocol risks an unconstitutional level of pain and suffering.” Other courts have also noted that twenty-seven states use the three-drug protocol
2In ruling on plaintiff’s motion to compel, Judge Stohr previously declined to compel responses to interrogatories directed to the existence of a “cut-down” procedure for inserting the intravenous line for lethal injection, finding that “issues involving such a procedure are not pled in the complaint.” Order of June 23, 2005 [Doc. #37], p.2.
8

Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 9 of 11
employed by Missouri, and further than no court has held that the method violates the Eighth Amendment. See Beardslee, 395 F.3d at 1074; Cooper, 2004 WL 231325 at *3.
To defendants’ motion for summary judgment, a different legal rubric applies. In determining whether summary judgment should issue, the facts and inferences from these facts are viewed in the light most favorable to the non-moving party, and the burden is placed on the movant to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, however, the non-moving party may not rest on the allegations in its pleadings but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e). See also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure §2739 (1983). Thus, the nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. The Supreme Court has indicated that: “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the federal rules as a whole, which are designed to ‘secure the just, speedy and inexpensive determination of every action’.” Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
At first blush, the contrary opinions of the parties’ medical experts might appear to present disputes of fact which preclude summary judgment. Upon more careful consideration, however, the Court concludes that summary judgment is appropriately granted because, as discussed in detail above with respect to the TRO motion, plaintiff’s proof, even if accepted as true and accurate, is insufficient to establish that the Eighth Amendment will be violated by Missouri’s lethal injection
9

Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 10 of 11
protocol. Both qualitatively and quantitatively, the opinions of plaintiff’s expert are inadequate to rationally support a conclusion that his execution as planned carries an unconstitutional risk of the unnecessary and wanton infliction of pain sufficient to violate standards of decency in the context of the purposeful and lawful extinguishment of his life.
Plaintiff’s assertions concerning alternative lethal injection protocols raise matters of public policy not properly considered by the Court. As the district court noted in Reid: “It is not this Court’s function to suggest more humane or medically acceptable execution protocol, but to determine whether the method adopted by the [State] is constitutionally sound.” Reid, 333 F.Supp.2d at 548. The Court will therefore grant defendants’ motion for summary judgment, finding as a matter of law that plaintiff fails to establish the Eighth Amendment violation upon which his complaint is based. Summary judgment being granted on that basis, the Court need not and does not address the statute of limitations issue raised by defendants in support of their motion.
Accordingly, for all the foregoing reasons, IT IS HEREBY ORDERED that plaintiff’s motion for temporary restraining order and preliminary injunction [Doc. #65] is denied. IT IS FURTHER ORDERED that defendants’ motion for summary judgment [Doc. #58] is granted.
10

Case 4:04-cv-01075-CAS Document 86 Filed 08/26/2005 Page 11 of 11 An appropriate judgment will accompany this memorandum and order.

Dated this 26th day of August, 2005.

CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

11

 
 Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 1 of 57 1

1

UNITED STATES OF AMERICA

EASTERN DISTRICT OF MISSOURI

2

EASTERN DIVISION

3 TIMOTHY JOHNSTON,

4

Plaintiff,

5

vs.

6 LARRY CRAWFORD,

7

Defendant.

) ) ) ) ) No. 4:04-CV-1075 CAS ) ) ) )

8

TRANSCRIPT OF TEMPORARY RESTRAINING ORDER

9

BEFORE THE HONORABLE CHARLES A. SHAW

10

UNITED STATES DISTRICT JUDGE

11

August 26, 2005

12 APPEARANCES:
13 For Plaintiff:
14
15

Mr. Christopher E. McGraugh LERITZ AND PLUNKERT One City Centre, Suite 2001 St. Louis, MO 63101

16

Mr. Michael J. Gorla

720 Olive Street, Suite 1630

17

St. Louis, MO 63101

18 For Defendant: 19 20

Ms. Denise Garrison McElvein Mr. Stephen Hawke ATTORNEY GENERAL OF MISSOURI 720 Olive Street, Suite 2150 St. Louis, MO 63101

21

REPORTED BY:

SUSAN R. MORAN, RMR

22

Official Court Reporter

111 South 10th Street

23

St. Louis, MO 63102

(314) 244-7983

24

Proceedings recorded by mechanical stenography, produced by

25 computer-aided transcription.

PDF created with FinePrint pdfFactory trial version www.pdffactory.com

Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 2 of 57 2

1

I N D E X

2

Direct Cross Redirect Recross

3 PLAINTIFF'S WITNESSES

4 MARK DERSHWITZ, M.D., Ph.D.

5

(By Ms. McElvein)

6

6

(By Mr. McGraugh)

34

7

8

9

10

E X H I B I T S

11 PLAINTIFF'S EXHIBITS
12 1, 2, 3, 4, 5
13

Offered 54

Received 55

14 DEFENDANT'S EXHIBITS

15

A

7

7

16

B, C, D, E, G

54

54

17

18

19

20

21

22

23

24

25

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 3 of 57 3

1

(The following proceedings were held in open court

2 on August 26, 2005 at 10 o'clock:)

3

THE COURT: Good morning.

4

MR. GORLA: Good morning, Judge.

5

THE COURT: Okay. This is Timothy Johnston versus

6 Crawford, it's 4:04-CV-1075. Representing Mr. Johnston are

7 attorneys Christopher McGraugh and Michael Gorla. And

8 representing I guess Larry Crawford, originally Kemper, et

9 al. is Denise McElvein.

10

MS. McELVEIN: Yes, Your Honor.

11

THE COURT: Okay. Good morning. Now, first of all,

12 let me say this: I have voluminous records, experts, all

13 this kind of information. There's no need to repeat that.

14 From talking to the clerk I understand that you all

15 apparently are in agreement with that to some degree. But we

16 do have this video conferencing, videotape that needs to be

17 displayed. And, of course, that's over in Judge Webber's

18 courtroom across the hall. And we will have to do that. So

19 anything either of you all, Mr. McGraugh, Mr. Gorla, you wish

20 to say relative to that?

21

MR. GORLA: Judge, I agree that we've said

22 everything we needed to say. It's in the documents that you

23 have.

24

THE COURT: Yeah, they are voluminous and we've been

25 trying to go over them. So the quicker we can do this, the

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 4 of 57 4

1 quicker I can get busy working further on those documents.

2

MR. GORLA: That's fine, Judge.

3

THE COURT: Okay.

4

MS. McELVEIN: Your Honor, I have just one

5 administrative matter.

6

THE COURT: Sure.

7

MS. McELVEIN: Pertaining to the documents submitted

8 under seal pursuant to the court order and the agreed

9 protective order.

10

THE COURT: Yes.

11

MS. McELVEIN: So I'm wondering as far as

12 referencing that to still protect that information if somehow

13 we could refer to it generally. This is information

14 contained in Director Crawford's interrogatory answers and

15 Director Crawford's supplemental interrogatory answers.

16

MR. GORLA: Judge, I have no problem with that. And

17 if we need to go into it in more detail, we'll let the Court

18 know and ask to approach the side bar.

19

THE COURT: That works for me.

20

MS. McELVEIN: Okay.

21

THE COURT: Is there anything else we need to do

22 before we adjourn and we move over to Judge Webber's

23 courtroom?

24

MS. McELVEIN: Well, Your Honor, the only thing I

25 would say is that we have Dr. Dershwitz standing by on video

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 5 of 57 5

1 conferencing. He was about -- he was just getting to the

2 courthouse. So it's going to take him a little while to get

3 in. I thought that plaintiff could go ahead and proceed

4 since they are not presenting witnesses, and then I can

5 proceed with him.

6

THE COURT: Well, I don't know that they got

7 anything that they want to proceed with. You just need to

8 figure out what time he'll be ready and they got to hook it

9 up, and we got to get over there. And I got to go through

10 there and excuse myself, say thank you and da, da, da, da for

11 using somebody else's courtroom. And so it's not like I just

12 walk out like I do mine, you know. You can't just walk into

13 his chambers and walk straight through like it's my spot.

14 I'm in somebody else's house, you know. Might offer me a

15 drink or something, I don't know. Whatever. Water, that is.

16

MR. GORLA: Judge, like I said, I think the

17 documents reflect our position. The affidavits are in the

18 record. You have all that.

19

THE COURT: Yeah, I've got all that.

20

MR. GORLA: I see no need to get up and regurgitate

21 it.

22

THE COURT: So, Ms. McElvein, you have some idea of

23 time that the witness will be ready?

24

MS. McELVEIN: Yes, he was arriving at the

25 courthouse. I spoke to him about ten minutes ago, so he just

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 6 of 57 6

1 had to go through security and find the proper location.

2

THE COURT: Well, Jeff, what you can do -- the clerk

3 can go over, call and find out what the situation is and when

4 they are ready. And, Jeff, why don't you come back and let

5 them know. Make sure the courtroom is open so they can go

6 over. And then when we're ready to go, come and tell us and

7 we'll go on, okay.

8

MR. GORLA: Thank you, Judge.

9

MS. McELVEIN: Okay. Thank you.

10

THE COURT: Sure.

11

(Court in recess from 10:04 a.m. until 10:22 a.m.)

12

THE COURT: Good morning again. This is a strange

13 situation here, strange setting here. Okay. Are we ready to

14 proceed?

15

MS. McELVEIN: Yes, Your Honor.

16

THE COURT: Very well. Go ahead, Ms. McElvein.

17

MS. McELVEIN: Hi, Dr. Dershwitz. My name is Denise

18 McElvein.

19

THE WITNESS: Good morning.

20

THE COURT: Are you able to hear me?

21

THE WITNESS: Just fine, thank you.

22

MS. McELVEIN: I'd like to have the witness sworn.

23

THE COURT: Very well.

24

MARK DERSHWITZ, M.D., PH.D.,

25 Having been first duly sworn, was examined and testified as

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 7 of 57 7

1 follows:

2

DIRECT EXAMINATION

3 BY MS. McELVEIN:

4 Q. Would you please state your name for the record?

5 A. Mark Dershwitz.

6 Q. What's your current occupation?

7 A. I'm an anesthesiologist at the University of

8 Massachusetts.

9 Q. Where are you employed?

10 A. At the University of Massachusetts.

11 Q. And I have marked as Exhibit A a copy of your

12 curriculum vitae. Do you have it there?

13 A. Yes, I do.

14 Q. Okay. And is that your curriculum vitae?

15 A. Yes.

16

MS. McELVEIN: And I'd like to admit that into

17 evidence as Exhibit A.

18

MR. GORLA: We have no objection, Judge.

19

THE COURT: It will be received.

20

MS. McELVEIN: I would move that Dr. Dershwitz be

21 allowed to give expert testimony today, Your Honor.

22

THE COURT: Any objection?

23

MR. GORLA: No, Your Honor.

24

THE COURT: Very well. Go right ahead.

25 BY MS. McELVEIN:

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 8 of 57 8
1 Q. Dr. Dershwitz, would you describe for us briefly your 2 occupation as an anesthesiologist? 3 A. What my present position involves is a combination of 4 providing clinical anesthesia in the operating room, teaching 5 residents in my training program, as well as being 6 responsible for the training program in our department. I 7 also have a number of administrative responsibilities in the 8 department as the academic vice chair which include overall 9 responsibility for the training as well as things like 10 continuing medical education for the staff. And I'm also the 11 point person for interviewing and choosing the residents who 12 are in our program. 13 Q. Do you hold any other medical degrees? 14 A. Well, in addition to my M.D., I also have a Ph.D in 15 pharmacology which I also obtained from Northwestern 16 University. 17 Q. And what is pharmacology? 18 A. Broadly speaking pharmacology is the study of the 19 effect of chemicals on living systems. 20 Q. Okay. Could you explain that a little bit more what 21 that means? 22 A. Well, again, it's a very broad definition. But it's a 23 basic medical science that involves the study of how 24 chemicals interact and affect biological and living systems. 25 Q. And does your experience relate to drugs that are used
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 9 of 57 9
1 in lethal injection? 2 A. Absolutely. My clinical work in the operating room 3 uses these medications on a regular basis. And my past 4 research has emphasized the study of the time course of the 5 effects of intravenous anesthetic medications. That was my 6 primary area of research over the last 20 years. 7 Q. And what do you mean by time course? 8 A. One of the things that's very important to an 9 anesthesiologist is to understand when a medication is given, 10 how long it is expected to act. So we can predict when we 11 need to give more medication or when we can predict that the 12 patient is going to awaken from anesthesia. So that this 13 time course of the effect of the medication has been one of 14 my primary interests in my career. 15 Q. Have you researched and published articles on the 16 medications used to induce anesthesia? 17 A. Yes, I have, quite a few actually. 18 Q. And what drugs are those? 19 A. Well, today the most commonly used medication to induce 20 anesthesia is propothol, which is or has pretty much replaced 21 thiopental. Thiopental is the medication that's commonly 22 used in lethal injection is less commonly used today in 23 anesthesia because we consider it to be too long lasting in 24 terms of its effects on the patient. Today it is important 25 for most of our patients to awaken very quickly from
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 10 of 57 10
1 anesthesia and then be able to typically leave the hospital 2 to go home on a very short time frame. And thiopental is a 3 much longer lasting drug than the drugs that are more 4 commonly used today, and that's one of the reasons that we 5 don't use it as often today in anesthesia as we did 10 or 20 6 years ago. 7 Q. When you say thiopental, is that also sometimes 8 referred to as sodium pentothal? 9 A. Sodium pentothal is the trade name of Abbott Labs, but 10 thiopental is the official name for the drug. And as a 11 pharmacologist, that's the term that I'm more likely to use. 12 Q. Now, when thiopental is administered, does everyone 13 have the same reaction to this drug? 14 A. Well, there are certainly differences from person to 15 person in terms of, for instance, how long they will sleep 16 after a given dose. But everybody will be rendered 17 unconscious if given an adequate dose of thiopental. 18 Q. Have you received and reviewed materials in 19 anticipation of your testimony today? 20 A. Yes, I have. 21 Q. Okay. Could you tell me briefly -- well, what you have 22 reviewed? 23 A. Well, I have affidavits of Mr. Larry Crawford, I 24 believe there's two of them. I have affidavits of Dr. Heath 25 and Dr. Groner. I think I have two affidavits from
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 11 of 57 11

1 Dr. Groner. And I've also been provided with an exhibit that

2 you gave me, the execution times chart which shows your

3 state's experience with a lethal injection. And then, of

4 course, I prepared two declarations and a number of exhibits

5 that I provided to you.

6 Q. Okay. And just for the record, you're talking the time

7 chart that you referred to was taken from the interrogatory

8 answers, Crawford's?

9 A. I believe that is Exhibit I --

10 Q. Right.

11 A. -- in this case.

12

MS. McELVEIN: Just for the record, you have a copy

13 of all of this, but paralegal Kelly is going to give you a

14 copy.

15 BY MS. McELVEIN:

16 Q. Did your research and your professional expertise

17 assist you in analyzing these materials?

18 A. Yes. What I did was I used the protocol for lethal

19 injection as used in Missouri to then do an analysis that

20 permitted me to predict the probability that a person would

21 be conscious after varying times of the injection of

22 thiopental. And those analyses are Exhibits B and C, I

23 believe, in this case.

24 Q. Okay. And you used those charts B, C, and I think

25 there's also one D, and attached those to your affidavit that

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 12 of 57 12

1 you submitted in this case?

2 A. Yes, I did.

3 Q. Okay.

4

MS. McELVEIN: And for the record we have the

5 affidavit marked as Exhibit E, and then the charts marked as

6 B, C, and D. May I hand you these exhibits?

7

THE COURT: Sure.

8 BY MS. McELVEIN:

9 Q. Okay. In Exhibit E, which is your affidavit, what I'd

10 like for you to do is to turn to the second page. And

11 starting with the first drug that Missouri uses in lethal

12 injection, I'd like for you to discuss the dosage of the drug

13 and the purpose of the drug.

14 A. Well, the first medication administered is thiopental,

15 and Missouri mandates a dose of 5 grams, which is the same

16 thing as 5,000 milligrams, which is as far as I'm aware the

17 largest dose of thiopental used in lethal injection in the

18 United States. Other states use less. California uses five

19 grams. I believe the other states use less. The purpose of

20 thiopental is to produce unconsciousness.

21

Now, when we administer an anesthetic to a person,

22 the typical dose for the average size person that we give of

23 thiopental is 300 to 400 milligrams. And so the dose of

24 5,000 milligrams is 10 to 15 times approximately the average

25 dose that's given to a person for surgery. And keep in mind,

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 13 of 57 13

1 for surgery usually we have a goal of having the person

2 awakened in a relatively short period of time after the

3 procedure is over. And so we want to have the patient have a

4 relatively low level of hangover afterwards.

5

Now, when a dose as large as 5,000 milligrams of

6 thiopental is given as compared to the typical doses we use

7 for surgical anesthesia, first of all, the likelihood of

8 becoming unconscious increases very high, and more

9 importantly the duration of unconsciousness will be measured

10 in hours rather than minutes. And so even though

11 pharmacologically thiopental has been called ultra short

12 acting barbiturate, that is a relative term comparing it to

13 the intermediate and long lasting barbiturate. Even as an

14 ultra short acting barbiturate, when it's given in a dose of

15 5,000 milligrams, the duration of unconsciousness is hours.

16

The other thing that thiopental does as another

17 effect which most anesthesiologists consider an adverse

18 effect is it depresses the heart's ability to pump. And so

19 almost everybody given even the typical three or 400

20 milligram dose of thiopental will have a significant decrease

21 in their blood pressure. But most people who are reasonably

22 fit tolerate that short duration of decreased blood pressure

23 relatively well.

24

On the other hand, when a dose as large as

25 5,000 milligrams is given, the ability of the heart to pump

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 14 of 57 14

1 is substantially depressed and in a significant fraction of

2 the population, 5,000 milligrams is enough to cause

3 circulation to cease. And so --

4 Q. Let me ask you with regard to the thiopental, if it's

5 used in surgery, when it was used in surgery, what amount

6 would be given then?

7 A. Well, as I said, the typical dose to start an

8 anesthetic for surgery in an average size person is 300 to

9 400 milligrams.

10 Q. 300 to 400 milligrams of the thiopental?

11 A. Correct. And the duration of unconsciousness after a

12 dose of 300 to 400 milligrams is typically on the order of

13 seven to ten minutes. That's why it is classified as this

14 ultra short acting barbiturate. But when a dose of

15 5,000 milligrams is given, the duration of unconsciousness is

16 measured in hours, not minutes.

17 Q. Do you have an estimate as to how many hours?

18 A. Well, I think if you refer to Figure C or Exhibit C,

19 which only carries the time course out to about three hours,

20 the concentration at the end of that three-hour time frame in

21 Exhibit C is still high enough to cause unconsciousness.

22

Now, in my affidavit I believe I calculated that the

23 average person of approximately 80 kilograms in weight or

24 approximately 176 pounds, the average person will remain

25 unconscious for a little over seven hours after a dose of

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 15 of 57 15
1 5,000 milligrams. That is under the assumption that after 2 such a large dose their heart will continue to beat. But as 3 I said before, a substantial fraction of people given 4 5,000 milligrams will stop breathing and have their heart 5 stopped just by this large dose of thiopental. 6 Q. What I'd like to do is have you turn your attention to 7 Exhibit B. 8 A. Yes. 9 Q. And I wanted to ask you, you prepared three graphs to 10 demonstrate your analysis of the five-gram dose of 11 thiopental; is that correct? 12 A. Yes. 13 Q. Okay. And these three graphs are marked as Defendant's 14 Exhibit B, C, and D. And I'd like you to start with Exhibit 15 B. And explain to us what the X axis is and what the Y axis 16 is and explain what this graph means in laymen's terms. 17 A. Okay. Well, the X axis in both of these graphs is 18 time. A note that the time is on an algorithimic scale in 19 order to make it more easily visualized. The Y axis is the 20 predicted arterial blood concentration of thiopental, again, 21 on an algorithimic scale. And I emphasize that this is the 22 predicted arterial concentration because it is the 23 concentration of thiopental in arterial blood that reflects 24 what the brain concentration is. And of course it is the 25 effect of thiopental in the brain that causes
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 16 of 57 16

1 unconsciousness.

2

So if we look at Exhibit B, as the time increases

3 from one to three minutes, as the injection proceeds, the

4 arterial blood concentration of thiopental increases and

5 reaches a peek a little over 400 micrograms per milliliter.

6 Then it starts to decrease as a function of time. And over a

7 period of about 20 minutes it falls to a concentration of

8 around 60 micrograms per milliliter.

9

Now, Exhibit C carries this analysis out for a

10 period of approximately 200 minutes. And after 200 minutes

11 the predicted arterial blood concentration of thiopental is

12 approximately 15 micrograms per milliliter.

13

Now, in terms of trying to then compare or associate

14 these arterial blood concentrations of thiopental with the

15 effect on the human, Exhibit D is a graph of the probability

16 of unconsciousness as a function of the arterial blood

17 concentration of thiopental. And at low concentrations of

18 thiopental, those below three to four micrograms per

19 milliliter, almost every human is awake if their arterial

20 blood concentration is below three to four micrograms per

21 milliliter. And we reach the 50/50 point at seven micrograms

22 per milliliter. Meaning if we had a population of normal

23 individuals, each of them having a thiopental concentration

24 of seven, about 50 percent would be awake and about

25 50 percent would be asleep. And then as the thiopental

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 17 of 57 17

1 concentration increases beyond seven, then the probability of

2 unconsciousness falls dramatically. And above concentrations

3 of approximately 12, almost nobody is conscious.

4 Q. And you're talking 12 micrograms per milliliter?

5 A. That is correct. And those probabilities are actually

6 listed in my affidavit on pages 4 and 5, the very small

7 probability that somebody could be conscious for varying

8 times after a dose of 5,000 milligrams of thiopental.

9 Q. What do you mean when you say unconscious?

10 A. Well, to a researcher the definition of unconsciousness

11 and the way that these experiments were actually performed is

12 to ask the person to follow a specific command, typically

13 raise your right arm, raise your left leg, and see if they

14 are able to perform that command correctly. And so -- and

15 I've actually done a number of these experiments myself in

16 volunteers. So a particular dose of medication is given and

17 the blood concentration is measured at a point in time. And

18 at that same point in time the person is asked to follow a

19 specific command like raise your left leg, raise your right

20 arm. And if they are able to do that correctly, they are

21 deemed to be conscious. If they are unable to do that

22 correctly, they are deemed to be unconscious.

23

And these volunteers are typically extremely well

24 motivated to cooperate with these experiments. So the data

25 obtained from experiments such as this are highly reliable.

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 18 of 57 18
1 Q. And in paragraph 8 of your affidavit you talk about 2 your opinion to a reasonable degree of medical certainty. If 3 you would just read those two sentences, I want to ask you 4 what -- to explain that a little bit. 5 A. Well, as I said before, 5,000 milligrams or 5 grams of 6 thiopental is a very, very large dose. And after the 7 injection of this dose the predicted probability of 8 unconsciousness as I calculated it is 99.99999999 percent. 9 For all intents and purposes it is hard to imagine a human 10 being remaining conscious after this dose of medication. 11 Because these probability calculations by definition could 12 never be 0 percent on one end or 100 percent on the other, we 13 end up with probabilities with a lot of nines in them because 14 mathematically you cannot have in this type of calculation 15 100 percent. But this is practically speaking a dose that 16 guarantees unconsciousness in everybody for a significant 17 period of time. 18 Q. Now, you've talked about unconsciousness. Is awareness 19 and unconsciousness the same thing that we're talking about 20 or -21 A. Lack of awareness and unconsciousness are 22 interchangeable terms in terms of the research definition 23 that I gave. So, in other words, a person who is considered 24 aware would be able to follow the simple command that I 25 described before, and a person who is unaware would be unable
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 19 of 57 19
1 to follow that same command. 2 Q. I'd like to turn your attention now to the second drug 3 that Missouri uses, the pancuronium bromide. 4 A. Yes. 5 Q. And I think that's listed in your affidavit as well. 6 Could you tell me how much of that? 7 A. The protocol mandates a dose of 60 milligrams of 8 pancuronium. And, again, that is a very large dose. The 9 typical dose for causing surgical paralysis, and this is 10 medication that we commonly use during surgery, the typical 11 dose in an 80 kilogram person would be approximately six to 12 eight milligrams. So this is about an eight to ten fold 13 overdose beyond what is commonly used during surgery. 14 Q. And what's the purpose of the use during surgery? 15 A. The purpose of pancuronium during surgery is to provide 16 muscle relaxation to make it easier for the surgeon to do the 17 operation. It is helpful in certain parts of the body where 18 the surgeon is going through muscle, let's say, for instance, 19 to obtain access to the abdominal activity, the surgeon has 20 to go through the abdominal muscles. And it is easier for 21 the surgeon to do so if those muscles are rendered paralyzed. 22 So that's why we commonly produce paralysis for certain types 23 of operations. 24 Q. And when you say the dose in an 80 kilogram, that's 25 approximately 175 pounds, is that what you said before?
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 20 of 57 20
1 A. Correct. 2 Q. A 175 pound person. And that would be six to eight -3 A. Milligrams. 4 Q. -- milligrams. Now, according to what you've listed 5 there in your affidavit in 4-A, B, C are there flush 6 solutions that are used -7 A. Yes. 8 Q. -- between the drugs? Between the first and second 9 drug? 10 A. Yes. And it is important to flush the IV line after 11 the thiopental and before the pancuronium because thiopental, 12 the solution has a PH of around ten, so its PH is at the 13 basic end of the chemical spectrum. Whereas pancuronium has 14 a PH of around five. And would the two drugs come in contact 15 with one another, they would form a precipitate. So by 16 flushing the line of thiopental with the saline solution, 17 that prevents the possibility of the thiopental and the 18 pancuronium mixing prior to entry into the person's body. 19 Q. And in Dr. Heath's affidavit he talks about a chemical 20 veil that's caused by the administration of the pancuronium 21 bromide. Could you explain what your understanding of that 22 is? 23 A. What he means is that if pancuronium is given to a 24 fully awake person, it will paralyze all of the muscles in 25 their body at this dose and it will cause them to have a
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 21 of 57 21

1 placid and serene look on their face. And his concern is

2 that if pancuronium is given to a fully awake person, it

3 would be a horrible experience, but the person would be

4 unable to communicate that they were in such distress. And I

5 have no disagreement with that contention. In fact, in

6 anesthesia we take great pains to make sure our patients who

7 are paralyzed are not conscious.

8

On the other hand, if the dose of pancuronium is

9 preceded by a dose of thiopental, especially a dose as large

10 as 5,000 milligrams, the likelihood that the inmate will

11 experience the paralysis caused by the pancuronium is

12 negligible.

13 Q. And I wanted to ask you also about the comment about --

14 that Dr. Heath makes in his affidavit about perhaps using

15 pentobarbital rather than the thiopental, to make a switch.

16 Do you have an opinion about that?

17 A. There are many, many ways pharmacologically to achieve

18 the same end point. And pentobarbital is another option for

19 producing unconsciousness. But compared to the dose of

20 thiopental that is mandated by Missouri's protocol, there

21 would be no meaningful difference whatsoever because

22 5,000 milligrams is going to cause almost everybody to remain

23 unconscious for hours. So substituting one barbiturate for

24 another will have no meaningful effect whatsoever.

25 Q. Have there been studies about the use of pentobarbital

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 22 of 57 22
1 in humans? 2 A. Well, there have been, but many fewer studies. 3 Pentobarbital is a medication that is uncommonly used today. 4 And since physicians in general and anesthesiologists in 5 particular have been conducting state-of-the-art kinetic 6 analysis, frankly, there's been no interest in conducting a 7 state-of-the-art analysis of the effects of pentobarbital 8 simply because it's so uncommonly used. And so we have much 9 less data available to us on how a population of people will 10 respond to a dose of pentobarbital in comparison to the huge 11 amount of data we have available to predict how people 12 respond to thiopental. 13 Q. So it would be accurate to say that the dosage of 14 thiopental, it's easier to figure out what the actual dosage 15 of thiopental should be if the goal is to induce death? 16 A. Well, I would rephrase this in a slightly different 17 way. I would say that because of the wealth of data that we 18 have on thiopental, the effects of a dose of thiopental are 19 far more readily predicted in humans than we would be able to 20 do with a drug like pentobarbital for which there is less 21 state-of-the-art kinetic data. 22 Q. I'd like to turn your attention now to the third drug, 23 the potassium chloride. 24 A. Yes. 25 Q. And if you could comment on the use of this drug and
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 23 of 57 23
1 the amount that's used. 2 A. Well, Missouri mandates a dose of 240 milliequivalents 3 of potassium chloride. And the effect of potassium chloride 4 is to basically turn off the heart's intrinsic pacemaker. So 5 what will happen after a dose of potassium chloride in this 6 amount is the electrical activity in the heart will stop. 7 And so the heart will almost immediately stop beating after 8 the potassium chloride reaches the heart. That is assuming 9 that the heart had not been stopped by the prior 10 administration of the dose of thiopental. 11 Q. So what you're talking about is if you just gave the 12 potassium chloride if the individual had no other drugs? 13 A. If a person had circulation, this dose of potassium 14 chloride will stop the heart almost instantly after it 15 reaches the heart. 16 Q. And, again, I note that there is a saline flush before 17 this drug is administered. Is that your understanding? 18 A. Yes. 19 Q. Do you have any estimate as to -- from the start of the 20 thiopental, the administration of the thiopental through the 21 administration of the third drug, how long before the heart 22 would stop? 23 A. I think that's very well described in your Exhibit I. 24 The injections began at the time listed in the third column. 25 And the time that the inmate was pronounced dead is in the
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 24 of 57 24

1 fourth column.

2

THE COURT: Hold on.

3 Q. Hold on.

4

MR. McGRAUGH: Your Honor, I'd like to impose an

5 objection as it refers to Exhibit I. And my objection as to

6 Exhibit I is that we requested in discovery the dosages that

7 were used of the thiopental as it relates to the former

8 inmates. We were not given a specific dosage. So we don't

9 know what dosage was given related to those inmates. As

10 such, Judge, I would object to Dr. Dershwitz stating a

11 conclusion that the dosage to be used in this instance would

12 be the same as used in those instances and draw conclusions

13 therefrom.

14

MS. McELVEIN: I can withdraw this exhibit.

15

THE COURT: Very well.

16

MS. McELVEIN: That's fine.

17 BY MS. McELVEIN:

18 Q. We're going to withdraw this exhibit.

19 A. Okay. Just talking from experience --

20

THE COURT: Move on from that.

21

MS. McELVEIN: Okay.

22 Q. We're going to move on. Okay, Dr. Dershwitz, do you

23 have an opinion to a reasonable degree of medical certainty

24 whether or not the three drugs used to carry out Missouri's

25 lethal injection cause any undue pain and suffering during

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 25 of 57 25
1 the execution by lethal injection? 2 A. Yes, I do. I think that if the protocol as described 3 here is implemented, the likelihood that the inmate will 4 experience any suffering is negligible. 5 Q. What I'd like to turn to now, Dr. Dershwitz, is to talk 6 a little bit about the training and experience of the -- in 7 this case the persons mixing the drug. What is your 8 understanding of that? 9 A. Well, according to the affidavit of -- the two 10 affidavits that I read of Mr. Crawford, that the medications 11 are prepared by a board certified surgeon and licensed 12 practical nurse. 13 Q. What is the risk as far as mixing drugs when you're 14 talking about thiopental, pancuronium bromide, and the 15 potassium chloride? 16 A. Well, first of all, the second and third drugs do not 17 need to be mixed. They are a liquid solution in a vile that 18 is simply drawn up into a syringe. The first medication, 19 thiopental, is supplied by the manufacturer as a powder. 20 Now, there's a number of different preparations available, 21 but the one that's typically used involves a syringe that has 22 two parts, and there's powder in one part of the syringe and 23 there's the water dilutant in the other part of the syringe, 24 and the two chambers are brought into contact with one 25 another so that the water then dissolves the thiopental and
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 26 of 57 26
1 then the thiopental remains in the syringe. 2 Q. And who would be -- who would be able to mix the 3 thiopental from your experience based on your experience? 4 A. I think that you could teach virtually anybody to do 5 this. For example, in many departments anesthesia techs are 6 allowed to prepare thiopental solutions to help the 7 anesthesiologists. And these are typically people with a 8 high school diploma and a lot of on-the-job training. So in 9 my opinion the title of the person is much less important 10 than their prior experience and their training. But a 11 person's title is not very important to me as far as what 12 their qualifications are. 13 Q. And when you've looked at Director Crawford's 14 interrogatory answers, and he has identified in there the 15 background of the persons who mixed the drug in this case? 16 A. Yes, I would expect a surgeon and a licensed practical 17 nurse to be very experienced in drawing up and mixing 18 medications in general because that's something that they 19 probably have a lot of experience doing in general. 20 Q. What I'd like to turn to now is the -- where it talks 21 about how the three syringes are labeled. What's the 22 significance of that? 23 A. Well, in order to minimize the likelihood that the 24 inmate would suffer, it's absolutely crucial that the 25 medications be given in the correct order. And so it's
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 27 of 57 27

1 important to label the syringes to help increase the

2 likelihood that the thiopental is given first.

3

Additionally, thiopental is a yellow solution.

4 Whereas potassium chloride and pancuronium bromide are clear

5 and colorless solutions. So visually it is easy to tell the

6 difference even without a label. But adding a label to each

7 of the syringes increases the security of making sure that

8 the medications are given in the order mandated in the

9 protocol.

10 Q. Okay. I'd like to turn now to the intravenous access

11 through the femoral vein.

12 A. Yes.

13 Q. I would like for you to explain to the Court what does

14 that mean.

15 A. Well, first of all, the femoral vein is a large vein

16 that carries the blood from the leg back to the heart. And

17 in the typical adult the diameter of the femoral vein is

18 about the same size as the person's thumb. So it's the

19 largest peripheral vein in the body. And it is readily

20 located because it is right next to the femoral artery. And

21 in almost everybody the femoral artery has a strong bounding

22 pulse. So if one can place one's fingers on the femoral

23 arterial pulse, then the femoral vein is located right next

24 to it. So locating it is very easy.

25

Now, one of the questions that has been raised not

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 28 of 57 28
1 only in your state but in others is the reliability of the 2 intravenous access for lethal injection. Because we all 3 agree that if the IV -- if the function of the IV were to 4 fail, then that is one potential way that an execution could 5 go awry. And by placing an intravenous catheter in the 6 femoral vein, that is one of the most reliable places that 7 one could place an IV because the vein is large and it's easy 8 to locate. 9 Q. Are you aware of other jurisdictions that use the 10 femoral vein to gain intravenous access? 11 A. I am aware that the federal government mandates the use 12 of the femoral vein for the executions that it carries out. 13 Q. I'd like you to take a look at Dr. Groner's affidavit. 14 A. Okay. 15 Q. There's two of them; there's a first one and a second 16 one. 17 A. I have those. 18 Q. Okay. And I'd like to turn your attention to the 19 paragraph 12 of the second affidavit. 20 A. Yes. 21 Q. Okay. And could you address what his concerns are 22 there? 23 A. Well, he is disagreeing with me on the likelihood that 24 a resident in training is going to be taught to place a 25 central venous catheter. And I said in my affidavit, quote,
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 29 of 57 29

1 Every resident in internal medicine, surgery, and all

2 surgical subspecialties, pediatrics, anesthesiology, and

3 emergency medicine have been trained to insert a central

4 venous catheter, unquote. And in order not to offend my

5 radiological colleagues, I should have added radiologists to

6 that list also. I stand by that statement.

7

And, in fact, where he says pediatric residents at

8 Columbus Children's Hospital are not trained in that

9 procedure, if that is a true statement, I would be very

10 surprised. This morning I did not have a chance to confirm

11 that. I know at my hospital pediatric residents are trained

12 to put in central venous lines. He said urologists,

13 orthopedic surgeons, plastic surgeons, ENT surgeons, and

14 ophthalmologists are not trained. I will grant that he is

15 correct with regard to ophthalmologists because

16 ophthalmologists technically are not surgical subspecialists.

17 On the other hand, all neurologists, orthopedic surgeons,

18 plastic surgeons, and ear nose and throat surgeons must train

19 at least one year in general surgery first. And I contend

20 that all surgical interns have experience with gaining access

21 to the central circulation.

22

My point in raising this topic is not to say that

23 every one of these specialists is an expert in placing a

24 central venuous line. The point that I'm trying to make is

25 that this is such a common and relatively benign procedure

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 30 of 57 30

1 that many, many, many, many medical people, regardless of

2 their area of training are trained to do so as part of their

3 residencies.

4

And, in fact, I did have time this morning to

5 confirm that the American Board of Internal Medicine -- now,

6 we would consider internists to be, you know, among the more

7 broadly trained physicians, not super specialists. The

8 American Board of Internal Medicine requires that every

9 resident in internal medicine be trained to place a central

10 venuous catheter. They have a quota of these that they have

11 to fulfill and their program director must certify that every

12 resident has met this, you know, requirement along with, of

13 course, many, many other requirements that the program

14 director has to certify.

15

So the bottom line in my mind is placing a central

16 venuous catheter is not a procedure that is in the realm of

17 only the most rare of specialists, but it is commonly done by

18 many, many different branches of medicine. And, again,

19 what's more important to me is not the person's title --

20

MR. McGRAUGH: Your Honor, I'm going to object.

21 A. -- but their level of experience. And if somebody

22 regularly places --

23 Q. I'm sorry, Dr. Dershwitz, let me ask you another

24 question. Could you explain the procedure itself for

25 inserting an intravenous line into a femoral vein?

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1 A. Okay, the procedure is straightforward. The femoral

2 vein is located because of its proximity to the femoral

3 artery. So the person who is going to do the procedure

4 palpates the femoral artery and typically makes a mark where

5 the artery is and then makes a mark where the vein is. The

6 skin is then scrubbed with an antiseptic solution. Local

7 anesthetic solution is injected with a small needle in order

8 to render the area numb. Typically a small needle is

9 inserted first into the femoral vein to confirm its location,

10 and then that needle is withdrawn. A larger needle is then

11 placed into the femoral vein. And once the femoral venous

12 circulation is obtained, it is confirmed by the fact that the

13 blood is nonpulsatile and dark in color. It is easy to tell

14 the difference between the femoral vein and the femoral

15 artery because the femoral arterial blood will pulsate. It

16 will squirt quite a distance from the needle and it will be

17 bright red.

18

Once the needle is in the femoral vein, a wire is

19 inserted through the needle and the needle is withdrawn.

20 This wire is made of a stainless steel and it looks like it

21 could be an electrical wire, but it's very, very flexible.

22 Q. Dr. Dershwitz, is that the wire then that has the

23 catheter?

24 A. No, the wire is separate from the catheter. Once the

25 wire is inserted into the femoral vein then the catheter is

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 32 of 57 32
1 inserted over the wire. And what this means is that the hole 2 in the femoral vein that the needle and the wire made is of 3 smaller caliber than the diameter of the catheter that's 4 going to be ultimately inserted. Once the catheter is 5 inserted over the wire into the vein, the hole that was 6 created is actually sealed. And then the catheter is 7 typically sutured in place to make it secure and a bandage is 8 applied over the insertion site and the procedure is done. 9 Q. Okay. I want to ask you, Dr. Dershwitz, what is your 10 opinion as to having looked at Director Crawford's Answers to 11 Interrogatories, and I don't want you to talk about, you 12 know, what's in those, but having reviewed that, do you have 13 an opinion as to the ability of the doctor to insert this 14 femoral vein or intravenous line into the femoral vein? 15 A. Well, I don't know obviously the name or the specific 16 background of the surgeon in particular, but the vast 17 majority of surgeons in general are comfortable and very 18 experienced in doing this procedure. And if this particular 19 surgeon is experienced in doing the procedure, I have little 20 reason to be concerned that there is a likelihood that 21 something is going to go awry. 22 Q. Now, I want to ask you as far as turning to another 23 area here where there's been some concern raised, as far as 24 once the intravenous line is inserted, what about monitoring 25 that area, that specific site? What's your opinion about
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 33 of 57 33
1 that? 2 A. Well, if the intravenous catheter was placed into the 3 femoral vein, and typically when the catheter is placed, the 4 person doing the insertion confirms after final placement 5 that it's still in the right place by virtue of the fact that 6 you obtain dark and nonpulsatile blood through the catheter, 7 then no further monitoring is necessary because the 8 likelihood of it becoming dislodged in the next several 9 minutes is negligible. 10 Q. Okay. 11 A. If I may give you an example. 12 Q. I want to address one other area with you talking about 13 where Dr. Heath's affidavit, paragraph 45 of his affidavit 14 talks about the need to assess anesthetic depth. 15 A. What paragraph number is that? 16 Q. Paragraph 45. 17 A. Okay. His concern is that the executioners have no 18 training, competency, or proficiency, excuse me, in the 19 assessment of anesthetic depth. Now, it is crucial for an 20 anesthesiologist to be able to assess anesthetic depth when 21 the goal is to have the patient awakened quickly at the end 22 of the case. The need for this type of monitoring is 23 obviated by giving such a large dose of thiopental that's 24 going to render everybody unconscious for quite awhile. So 25 the need for trying to figure out if the person remains
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 34 of 57 34

1 conscious X number of minutes later is really not a concern.

2

MS. McELVEIN: That's all I have, Your Honor.

3

THE COURT: Cross-examination.

4

CROSS-EXAMINATION

5 BY MR. McGRAUGH:

6 Q. Dr. Dershwitz, my name is Chris McGraugh. I represent

7 Tim Johnston. I have a few questions for you. I hope to be

8 brief, okay. Are you having any trouble hearing me?

9 A. Not at all, sir.

10 Q. Okay. Let's do a little house cleaning matters first,

11 Doctor. As far as -- I want to review with you all the

12 materials that you reviewed in coming to your opinions today

13 and those that are included in your affidavit, okay.

14 A. Yes.

15 Q. And just in order to keep it brief, Doctor, is

16 everything that you discussed on direct examination that you

17 went through with the Attorney General everything that you

18 reviewed in this case?

19 A. That's a hard question to answer because as you

20 probably know, I am involved in some cases in other states,

21 and so I actually commonly read about this particular topic

22 as it comes up. So, for instance, I reread yesterday the

23 well-known article in the Lancid concerning lethal injection

24 thinking that you might bring it up to discuss it with me.

25 Ms. McElvein did not bring it up, but since you might, I have

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 35 of 57 35
1 a copy of and I reread it. 2 Q. So would it be fair to say that besides this case you 3 have reviewed and incorporated for your opinion other 4 protocols from other states? 5 A. I have reviewed other protocols, but I don't need them 6 to form my opinion in this case. My opinion in this case 7 derives from the protocol as described in Mr. Crawford's 8 affidavit. 9 Q. Okay. That's really what I want to get to. I want to 10 find out what materials you are using to rely on for your 11 opinion here today and those that are contained in your 12 affidavit, okay. And would it be Mr. Crawford's affidavit? 13 A. Yes. 14 Q. Okay. Have you reviewed any photographs or video of 15 the actual execution site? 16 A. No, I have not. 17 Q. Have you been -- have you reviewed any listings or have 18 you reviewed what equipment is on the execution site at the 19 time of the execution? 20 A. I may have been informed about things like an EKG 21 monitor or whatever, but I don't think it's in writing. 22 Q. Okay. Now, as to -- and I assume that that doesn't 23 have any effect as far as what your opinion is here today? 24 A. No. 25 Q. Okay. Now, as to -- have you interviewed any doctors
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 36 of 57 36

1 that participated in the execution protocol?

2 A. I don't understand the question.

3 Q. I'm sorry. Have you interviewed the doctor who is

4 involved in the execution protocol?

5

MS. McELVEIN: Objection, vague. Are you talking

6 about in Missouri?

7

MR. McGRAUGH: Yes.

8

MS. McELVEIN: Okay.

9 A. I am unaware of who specifically wrote the protocol.

10 Q. I'm asking about the doctor that actually participates

11 in the protocol that you discussed on direct examination

12 about mixing the drugs.

13 A. I have not interviewed the surgeon who mixes the drugs

14 or places the IV.

15 Q. Have you had -- have you interviewed or discussed

16 anything with the actual executioners?

17 A. No.

18 Q. Anything with Larry Crawford or any of the other

19 defendants in the case?

20 A. I have not communicated directly with Mr. Crawford,

21 only through his affidavits.

22 Q. Now, as to your direct testimony, I want to talk with

23 you a little bit about the drugs used in the Missouri

24 execution protocol, okay?

25 A. Yes.

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 37 of 57 37
1 Q. Okay. And the first is thiopental; is that right? 2 A. Yes. 3 Q. Okay. And the purpose of thiopental is to render the 4 inmate unconscious; is that correct? 5 A. That is correct. 6 Q. Okay. And we don't really know how thiopental works, 7 do we? 8 A. Well, that's a difficult question. We know what 9 neurotransmitter system it interacts with, and so I can tell 10 you at a molecular level what it does. It potentiates the 11 neurotransmitter gamma-aminobutyric acid. I think that's 12 pretty well established. 13 Q. Okay. But let me ask you, do you know how or do you 14 understand how thiopental works at the molecular level? 15 A. Well, that's a very complicated question, but 16 thiopental binds to a receptor and it increases the activity 17 of gamma-aminobutyric acid. Now, gamma-aminobutyric acid is 18 what's called an inhibitory neurotransmitter. So, therefore, 19 when its activity is increased, brain activity then decreases 20 including the level of consciousness. And I think that's 21 been pretty well established. 22 Q. Okay. Let me just refer you, Doctor, to testimony you 23 gave in James Reid versus Gene Johnson in the Eastern 24 District of Virginia. Do you recall that? 25 A. Yes.
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 38 of 57 38

1 Q. And that was last year?

2

THE COURT: Counsel, is there any issue in this case

3 relative to this thiopental? Is there any issue here? I did

4 not know that this was in controversy.

5

MS. McELVEIN: Your Honor, I would just add that I

6 think Virginia, I think they issue two grams, so I'm not

7 sure.

8

THE COURT: No, I'm talking about in this case

9 whether or not this whole subject matter that is being

10 broached by Mr. McGraugh is in controversy in this case.

11

MS. McELVEIN: Not to my knowledge.

12

MR. McGRAUGH: Judge, it's just background leading

13 to the questions I was going to ultimately get to.

14

THE COURT: Have you got enough background?

15

MR. McGRAUGH: Let me ask it this way, Judge. I

16 think I'll get what I need.

17

THE COURT: You said you were going to be brief.

18

MR. McGRAUGH: I'm trying to.

19

THE COURT: Try harder.

20 BY MR. McGRAUGH:

21 Q. Dr. Dershwitz, the focus of thiopental is on the brain,

22 is that correct, the locus of how it effects the body is the

23 brain; is that right?

24 A. Not Really. The primary desirable effect, which is the

25 production of loss of consciousness, that indeed occurs in

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 39 of 57 39
1 the brain. But there are substantial cardiovascular effects 2 that are inseparable. Now, most anesthesiologists consider 3 those to be adverse effects, but they are substantial. 4 Q. All right. Well, let me ask you this, Doctor. In your 5 testimony in Reid versus Johnson in the Virginia court you 6 were asked this question: "Without going into great complex 7 detail explain why. How does it happen? Does it go into the 8 brain?" And your answer was, "That's a very good question 9 because we actually do not understand how thiopental works at 10 a molecular level. But in a more generalized way certainly 11 its primary locus of action is on the brain and it alters 12 brain activity so that the person looses consciousness." Is 13 that correct? 14 A. Linguistically I have no problem with that. I stand by 15 my prior statement. 16 Q. Okay. 17 A. We know a lot about how it works, but we don't know 18 everything about how it works. 19 Q. Okay. Now, Doctor, as to the administration of 20 thiopental, it's not uncommon for surgeons or 21 anesthesiologists to administer a drug like thiopental to 22 render someone unconscious and then give them a drug similar 23 to pancuronium bromide to paralyze them; is that correct? 24 A. Correct. 25 Q. Okay.
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 40 of 57 40

1 A. In other words, the production of unconsciousness and

2 the production of paralysis are common and routine during

3 surgery.

4 Q. Okay. And, Doctor, would it be fair to say that one of

5 the reasons why you're introducing pancuronium bromide in the

6 execution protocol is to paralyze the body so it doesn't give

7 any physiological manifestations of suffering for the

8 witnesses' benefit; is that correct?

9 A. That's not how I would phrase it. May I use my own

10 words?

11 Q. Sure.

12 A. First of all, I do not know the specific reason why

13 because I've never interviewed the person why this particular

14 drug was chosen, but I can surmise. There are two things

15 that typically happen or that I would expect to typically

16 happen during an execution. Once the brain is deprived of

17 oxygen, it is common to manifest seizure activity. Now,

18 seizure activity by definition occurs in an unconscious

19 person. The pancuronium will prevent the motor manifestation

20 that is the jerking movements during seizures. I believe it

21 is reasonable to assume that many lay persons would view the

22 seizure as suffering on the part of the inmate.

23

Second of all, potassium chloride in addition to

24 having significant electrical effect on the heart also has

25 direct electrical effects on skeletal muscles throughout the

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 41 of 57 41
1 body, and that is to cause involuntary movement which can be 2 significantly mitigated by pancuronium. So it is my belief 3 that the pancuronium was added to or made a part of the 4 protocol in order to decrease the likelihood that the 5 witnesses would perceive the inmate as suffering. 6 Q. Okay. 7 A. But I freely admit that this is just a hypothesis on my 8 part. 9 Q. Okay. Now, Doctor, in the setting of surgery, I think 10 we've already established thiopental or a drug like 11 thiopental and a drug like pancuronium bromide is not 12 uncommon; is that correct? 13 A. Very common. 14 Q. Okay. And because of that and I think you testified on 15 direct examination, there is a -- great pains are taken to 16 make sure that the patients are not awake and paralyzed at 17 the same time; is that right? 18 A. Yes, with the understanding that the dose of thiopental 19 or related drugs used during surgery is much lower than used 20 during an execution because we typically need to wake the 21 patient up in a very short period of time. 22 Q. I understand, Doctor, but in a surgical setting that is 23 something that anesthesiologists pay a great deal of 24 attention to to make sure that their patients are not awake 25 and paralyzed at the same time; is that right?
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 42 of 57 42

1 A. That's absolutely right.

2 Q. Okay. And awareness under anesthesia is a real problem

3 and a real concern in the anesthesiologist community, isn't

4 it?

5 A. Awareness under anesthesia, yes, is a real concern.

6 Q. And I think you've been quoted in the past as saying at

7 least .2 percent of people having surgery have experienced

8 awareness under anesthesia; is that correct?

9 A. Well, the latest data suggests that if we take all

10 comers to the operating room, approximately 0.2 percent or

11 approximately one in 500 experiences awareness under

12 anesthesia. There's certain subsets of the population where

13 the risk is actually quite a bit higher.

14 Q. And because of that, Doctor, if you multiply that

15 against the number of surgeries that go on, that's a rather

16 large number, is it not?

17 A. It's a significant number, and it's a significant

18 concern in our practice.

19 Q. Okay.

20

MS. McELVEIN: Your Honor, I'm going to object to

21 this line of questioning as irrelevant because it concerns

22 surgery. A person undergoing surgery is not directly related

23 to --

24

MR. McGRAUGH: I'll link it up, Judge.

25

THE COURT: Well, get to the link.

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 43 of 57 43
1 BY MR. McGRAUGH: 2 Q. As to when you perform surgery or when you are acting 3 as an anesthesiologist in a surgical setting, you make a 4 calculation of the anesthesia that is to be used and the 5 dosage to be given for the length of time that person is 6 going to be under; isn't that right? 7 A. That's not exactly right. We don't necessarily 8 calculate in advance how much is going to be needed. We give 9 usually incremental doses and then monitor the patient's 10 response to those individual doses. That's the type of 11 monitoring that anesthesiologists are trained to do. 12 Q. Okay. But throughout that process you're continuing to 13 monitor to make sure that person is under, completely under; 14 is that correct? 15 A. That's the goal, yes. 16 Q. Now, and you would admit, Doctor, that if -- if the 17 sodium pentothal is not administered or not administered 18 correctly or not given in the proper dosage that the 19 administration of the pancuronium bromide and then following 20 the potassium chloride would be an inhumane death, would it 21 not? 22 A. I agree that if an awake person were given pancuronium 23 and then potassium chloride, it would be horrible. 24 Q. And there is a way to monitor and there is a way that 25 you monitor whether an individual is completely under
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 44 of 57 44
1 anesthesia; isn't that true? 2 A. Well, that's one of the things that anesthesiologists 3 are trained to do, yes. 4 Q. And one of that is an EEG machine; isn't that correct? 5 A. That is not standard of care yet. It is a new device 6 that has not been universally adopted. I happen to be a 7 proponent of it, but it is not universally adopted. 8 Furthermore, it would not work in the setting of an 9 execution. 10 Q. But there are other -- there are other commonly used 11 machinery that you use to determine the level of anesthesia; 12 isn't that correct? 13 A. Actually there is no commonly used monitoring device to 14 determine the depth of anesthesia. It is the person's 15 clinical experience which is used to assess the depth of 16 anesthesia. 17 Q. Okay. As it relates to your review of the 18 interrogatory answers or the Crawford affidavit, are the 19 people at the execution site trained to monitor the level of 20 anesthesia that's given? 21 A. I don't know what the surgeon's level of training is in 22 this regard. I would suspect that the others are not. 23 Q. And as far as the surgeon, you have no information one 24 way or the other? 25 A. I know a little bit about his background and training,
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 45 of 57 45
1 but I don't know what his experience in the anesthetic end of 2 surgery is. 3 Q. And so the answer to my question is as far as the 4 information provided to you, you have no -- no one at the 5 execution site as far as you know has training in determining 6 that depth of anesthesia? 7 A. As far as I know. But as I also said before, I think 8 the need for that is not there. 9 Q. Well, that wasn't my question. I want to discuss with 10 you about this -- on direct examination the Attorney General 11 brought up that in -- there was a disagreement between you 12 and Dr. Groner as to paragraph -- in his affidavit, paragraph 13 12, as to who was competent to place a femoral line. Do you 14 recall that questioning? 15 A. First of all, that paragraph does not discuss 16 competency. That paragraph discusses who receives training 17 in this procedure as part of their residency training. 18 Q. Okay. Then I'll rephrase my question. You recall this 19 disagreement? 20 A. Yes. 21 Q. Okay. 22 A. And he's wrong. 23 Q. Well, and, Doctor, I'm sure Dr. Groner would say you're 24 wrong. By this affidavit he's saying you're wrong, isn't he? 25 So there's a disagreement between two expert professionals,
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 46 of 57 46
1 is there not? 2 A. Yes. And if given the time, I will produce evidence 3 from the relative board certification entities that will 4 prove that he is wrong because most of these board 5 certification entities have written requirements that their 6 trainees receive instruction in the placement of central 7 venous lines. And if he is unaware that this is going on at 8 his institution, then he needs to be educated on this. But 9 it is going on in his institution. 10 Q. Would you not agree with me, you two disagree on this? 11 A. Sure. But he's wrong. 12 Q. And he would say you're wrong. 13 A. He has the right to say anything he wishes, it's a free 14 country. He's still wrong. 15 Q. Let me ask you this, let's talk about the femoral 16 lines. You state the femoral vein lies close to the femoral 17 artery and femoral nerve; is that correct? 18 A. I never mentioned the femoral nerve. 19 Q. Well, then let me ask it. Does the femoral vein lie 20 close to the femoral nerve? 21 A. No. The femoral artery is in between the femoral vein 22 and the femoral nerve. So as long as one goes on the side of 23 the femoral vein, the likelihood of hitting the femoral nerve 24 is essentially nil. It's never happened to me. It's 25 possible for somebody with dyslexia not to know what side
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 47 of 57 47

1 it's on, but I would say that that's pretty unlikely.

2 Q. So the femoral nerve does not lie close to the femoral

3 vein, is that what you're saying, Doctor?

4 A. No, what I'm saying is the femoral artery, which is a

5 readily located structure about the width of your thumb, lies

6 in between the artery and the vein. So if you can find the

7 artery, you know the vein is on one side, you know the nerve

8 is on the other. So if you're looking for the vein, the

9 likelihood that you're going to hit the nerve is remote, not

10 that it's not impossible.

11 Q. I didn't ask you that, Doctor. I asked you whether the

12 femoral vein lies close to the femoral nerve is what I asked

13 you. And I would appreciate if you would restrict your

14 answers to my questions.

15 A. Well, the problem is I don't understand your question.

16 Can you define for me the word close? I'm trying to

17 elaborate on my answer because I don't understand the word

18 close. It's not close.

19

THE COURT: Hold on just a minute. This is very

20 interesting. You know, we as lawyers are wordsmiths. But it

21 seems like the doctor here in terms of competence and close

22 has one upped you.

23 BY MR. McGRAUGH:

24 Q. In the femoral catheter vein is there a kit that's

25 provided for that?

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 48 of 57 48
1 A. Many manufacturers make such a kit. 2 Q. Okay. And is a scalpel normally included in a kit? 3 A. It's included in case it's needed. It's not 4 necessarily needed. 5 Q. Okay. And the catheter that is used here is larger 6 than the standard peripheral IV, is that not true? 7 A. Well, there's no such thing as a standard peripheral 8 IV. Peripheral IVs come in all sizes. I have put catheters 9 larger than your typical triple lumen catheter in an arm 10 vein. So your question doesn't make any sense. 11 Q. Doctor, let me ask you this -12 A. They have come in many different sizes. 13 Q. Let's talk about some things that can go wrong in the 14 placement of a femoral Line. A large hematoma can develop 15 with an arterial puncture; is that correct? 16 A. If given enough time, especially in a patient who is 17 anticoagulated, if a person is on a blood thinning 18 medication, that makes it more likely. And a person who is 19 not on a blood thinning medication, that likelihood is pretty 20 tiny. 21 Q. And also puncture on a femoral nerve could occur? 22 A. Well, of course, if the person is completely 23 incompetent and goes on the wrong side of the artery, yes, 24 they could hit the nerve. But to do that you have to be 25 dyslexic, blind, or incompetent. I don't know anybody who
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 49 of 57 49
1 has done that. 2 Q. If the needle travels through the vein and strikes the 3 bone in the pelvis that's possible as well? 4 A. Anything is possible, sir. It's just not good 5 practice. 6 Q. And also as far as placement of the femoral catheter, 7 an unrecognized interior catheter placement could cause the 8 drugs to flow down the leg instead of the heart or brain; 9 isn't that correct? 10 A. Well, if you left the catheter in the artery, yes. But 11 it's inconceivable to me if the catheter were in the artery 12 where it would get pulsatile blood that squirts quite a 13 distance out of the end and it would be bright red. The 14 blood coming from the vein would have to be withdrawn and 15 it's going to be dark. Again, only a blind person or an 16 idiot couldn't tell the difference in a normal patient. 17 Q. Also catheter tip malplacement or malposition could be 18 a complication? 19 A. I don't know what that means. 20 Q. Well, the catheter tip lies outside the vein. 21 A. Well, if it were not in the vein, one would not be able 22 to aspirate blood and one would know about it instantly. 23 Q. These issues all go to the competency of the individual 24 that is actually placing the catheter, doesn't it? 25 A. Yes, that's exactly what I said before. The person's
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 50 of 57 50

1 title is less important to me than their level of experience

2 in doing a particular procedure.

3 Q. But these complications all exist, do they not?

4 A. Again, anything is possible. I will concede that

5 anything that could possibly go wrong might go wrong.

6 Q. Well, let me refer you, Doctor, to the Journal of

7 American Medicine 2001, reported over 17 percent of incidents

8 of medical complications in femoral central vein catheter.

9 Are you aware of that?

10

MS. McELVEIN: Objection, what are you referring to?

11

MR. McGRAUGH: To the Journal of American Medicine,

12 2001 report.

13

MS. McELVEIN: Well, Your Honor, I object. I don't

14 know that our expert has that.

15

MR. McGRAUGH: Well, Judge, I'm asking him if he's

16 aware of that.

17

THE COURT: Well, haven't you all exchanged

18 information and things that you were going to refer to?

19

MR. McGRAUGH: Well --

20

MS. McELVEIN: I do not have a copy of that, Your

21 Honor, what he's referring to.

22

MR. McGRAUGH: Judge, I'm going to ask him whether

23 he actually knows --

24

THE COURT: Well, then you're going to be testifying

25 to what's in it.

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 51 of 57 51

1

MR. McGRAUGH: I'm just asking whether he's --

2

THE COURT: That's an objection. That's sustained.

3 Move on.

4 BY MR. McGRAUGH:

5 Q. Are you aware, Dr. Dershwitz, of any data that suggests

6 that there's over 17 percent incidents of mechanical

7 complications in femoral central line placements?

8 A. Isn't that the same question you just asked me?

9 Q. I'm just asking if you're aware of any, Doctor.

10 A. Yes.

11 Q. You're aware of it?

12

THE WITNESS: Am I able to discuss the paper that

13 you just sustained his objection?

14

THE COURT: I'll tell you what, let's move on from

15 this line of questioning. I sustained the objection. And

16 you've basically as the doctor said asked the same question,

17 and then there's not going to be any discussion of it, so

18 there's not going to be any discussion of, so that's the end

19 of it. Move on.

20 BY MR. McGRAUGH:

21 Q. Doctor, approximately how many states have you

22 testified on behalf of related to the appropriateness of

23 their execution protocol?

24 A. Two.

25 Q. And how many have you offered affidavits in support of

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 52 of 57 52
1 it? 2 A. I think an additional five or six. 3 Q. Okay. The affidavit you prepared in this case which 4 you've been referring to, Doctor, is that one you prepared 5 specifically for this case? 6 A. Parts of it are specific to this case and parts of it, 7 for instance, relating to my training and qualifications, I 8 have used an affidavit not only in cases relating to lethal 9 injection but I've also used it in cases where I've defended 10 doctors against malpractice. It's basically boilerplate 11 language that I use on all of my affidavits. 12 Q. My question is -13 A. You didn't let me finish, sir. Certain paragraphs in 14 this affidavit are absolutely specific to the State of 15 Missouri. 16 Q. Okay. And so it's fair to say some of it's borrowed, 17 some of it specific from other affidavits; is that right? 18 A. Borrowed from previous writings that I did. 19 Q. Now, did you carefully review it, Doctor, to make sure 20 it's accurate? 21 A. I did. I will not stake my life that there's no typos 22 in here, but to the best of my ability I proofread it before 23 submitting it. 24 Q. And you read it before you signed it? 25 A. I read it over, and to the best of my ability there is
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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 53 of 57 53

1 no typographical errors. All I can say, it's to the best of

2 my ability.

3 Q. Okay. Doctor, on the last page of the affidavit where

4 your signature appears?

5 A. Yes.

6 Q. Does it indicate that you signed it before the notary

7 public on the 9th day of October 2005?

8 A. This is not a notarized affidavit. What I have in

9 front of me is a declaration. I think the phrasing is the

10 same as the affidavit. But what I have in front of me here

11 is a declaration.

12 Q. Well, let the record reflect here the affidavit was

13 filed in this court shows it was signed before a notary

14 public on October 9th, 2005.

15

Doctor, are you being paid for your testimony here

16 today?

17 A. Not yet I haven't.

18 Q. Do you anticipate to be paid for your testimony here

19 today?

20 A. Yes, I'm going to submit a bill to the people of

21 Missouri.

22 Q. And what is your charge for offering this testimony and

23 the work you've done in this case?

24 A. I charge $400 an hour for work that I can do at home

25 nights and weekends. And whenever I travel to testify

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 54 of 57 54

1 somewhere, I charge a flat fee of $3,000 a day.

2 Q. Do you know what the charge to date in this case is?

3 A. I just told you.

4 Q. I didn't have a specific amount.

5 A. Well, I haven't totaled up how many hours I've spent.

6

MS. McELVEIN: I'm going to object.

7 A. So I don't know how many hours so far.

8

THE COURT: Sustained. Mr. McGraugh, you aren't

9 before a jury to incite them if you can belittle somebody and

10 get in all this stuff, please.

11

MR. McGRAUGH: That's all I have, Judge.

12

THE COURT: You're up here putting testimony before

13 a pro. Please.

14

MR. McGRAUGH: That's all I have.

15

THE COURT: Anything else?

16

MS. McELVEIN: Your Honor, I want to offer into

17 evidence -- I hadn't offered Exhibits B, C, D and E yet. I

18 already offered into evidence Exhibit A. And then because

19 Mr. McGraugh referred to Exhibit G, which is the affidavit of

20 Larry Crawford, I'd like to offer that into evidence as well.

21

THE COURT: Any objection?

22

MR. McGRAUGH: No, Your Honor.

23

THE COURT: Fine, they are received. Anything else?

24

MR. McGRAUGH: Your Honor, we would offer Exhibits

25 1, 2, 3, 4, and 5. They've been already previously provided

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 55 of 57 55

1 to the Court.

2

THE COURT: Any objection?

3

MS. McELVEIN: Your Honor, I don't have a copy of

4 them.

5

MR. McGRAUGH: They do have a copy. Exhibit 1 is

6 the affidavit of Mark Heath. Exhibit 2 is his curriculum

7 vitae. Exhibit 3 is the affidavit of Jonathan Groner.

8 Exhibit 4 is exhibit of Jonathan Groner. Exhibit 5 is his

9 curriculum vitae, all of which have been provided.

10

THE COURT: Fine. Any objection there?

11

MS. McELVEIN: No, these look like the same ones

12 that have been attached.

13

THE COURT: Fine, they will be received. Anything

14 else?

15

MS. McELVEIN: No, Your Honor.

16

THE COURT: Anything else?

17

MR. McGRAUGH: No, Your Honor.

18

THE COURT: Very Well. Thank you, Dr. Dershwitz,

19 you're excused. You may step down.

20

THE WITNESS: Thank you, sir.

21

THE COURT: Very Well. Listen, I'm going to go to

22 work immediately on this. I know that time is of the

23 essence. I appreciate your efforts. And I'm going to do the

24 best I can. And if I can, I may get something out late

25 today. Worst case scenario, Monday morning, okay.

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 56 of 57 56

1

MR. GORLA: Thank you, Judge.

2

THE COURT: I'm going to work to try to get

3 something out later today, okay.

4

MS. McELVEIN: Thank you.

5

THE COURT: Thank you all very much.

6

(Court in recess at 11:47 a.m.)

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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Case 4:04-cv-01075-CAS Document 89 Filed 08/29/2005 Page 57 of 57 57

1

C E R T I F I C A T E

2

I, Susan R. Moran, Registered Merit Reporter, in

3 and for the United States District Court for the Eastern

4 District of Missouri, do hereby certify that I was present

5 at and reported in machine shorthand the proceedings in the

6 above-mentioned court; and that the foregoing transcript is

7 a true, correct, and complete transcript of my stenographic

8 notes.

9

I further certify that I am not attorney for, nor

10 employed by, nor related to any of the parties or attorneys

11 in this action, nor financially interested in the action.

12

I further certify that this transcript contains

13 pages 1 - 57 and that this reporter takes no responsibility

14 for missing or damaged pages of this transcript when same

15 transcript is copied by any party other than this reporter.

16

IN WITNESS WHEREOF, I have hereunto set my hand

17 at St. Louis, Missouri, this _________ day of

18 __________________, 2005.

19

20

______________________________

/s/ Susan R. Moran

21

Registered Merit Reporter

22

23

24

25

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 MOED - CM/ECF (LIVE) - Docket Report

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APPEAL, CLOSED, PROTO, R16, TRCK3
U.S. District Court Eastern District of Missouri (LIVE) (St. Louis) CIVIL DOCKET FOR CASE #: 4:04-cv-01075-CAS

Johnston v. Crawford et al., Assigned to: Honorable Charles A. Shaw Cause: 42:1983 Prisoner Civil Rights Plaintiff Timothy Johnston
V. Defendant Gary B. Kemper Director, Missouri Department of Corrections TERMINATED: 06/13/2005
Defendant

Date Filed: 08/16/2004 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Christopher E. McGraugh LERITZ AND PLUNKERT One City Centre Suite 2001 St. Louis, MO 63101 314-231-9600 Fax: 314-231-9480 Email: cmcgraugh@leritzlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Gorla 720 Olive Suite 1630 St. Louis, MO 63101 314-621-1617 Fax: 314-621-7448 Email: mjgorla@msn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Denise Garrison McElvein ATTORNEY GENERAL OF MISSOURI P.O. Box 861 St. Louis, MO 63188 314-340-7861 Fax: 314-340-7029 Email: denise.mcelvein@ago.mo.gov ATTORNEY TO BE NOTICED

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Donald P. Roper Superintendent, Potosi Correctional Center
Defendant James Purkett Superintendent, Eastern Reception, Diagnostic and Correctional Center
Defendant Unknown Executioners Defendant Larry Crawford
Movant Donald J. Hall TERMINATED: 06/22/2005
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https://ecf.moed.uscourts.gov/cgi-bin/DktRpt.pl?340613995885796-L_...
represented by Stephen D. Hawke ATTORNEY GENERAL OF MISSOURI Assistant Attorney General 221 W. High Street P.O. Box 899 Jefferson City, MO 65102-0899 573-751-3321 Fax: 573-751-3825 Email: stephen.hawke@ago.mo.gov ATTORNEY TO BE NOTICED
Denise Garrison McElvein (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen D. Hawke (See above for address) ATTORNEY TO BE NOTICED
Denise Garrison McElvein (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen D. Hawke (See above for address) ATTORNEY TO BE NOTICED
represented by Denise Garrison McElvein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen D. Hawke (See above for address) ATTORNEY TO BE NOTICED
represented by Donald J. Hall 990113 PCC Potosi Correctional Center 11593 State Highway O Mineral Point, MO 63660 PRO SE
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Date Filed 08/16/2004 08/16/2004 08/16/2004 09/15/2004 10/04/2004 10/05/2004 10/06/2004
10/14/2004 10/14/2004

#

Docket Text

1 COMPLAINT against defendant Eastern Reception, Diagnostic & Correctional Center, Missouri Department of Corrections, Potosi Correctional Center Waivers issued 3, Fee paid in the amount of $150, , filed by Timothy Johnston. (Attachments: # 1 Civil Cover Sheet # 2 Original Filing Form)(CDD, ) (Entered: 08/16/2004)
WAIVER of Service issued defendant Eastern Reception, Diagnostic & Correctional Center, Missouri Department of Corrections, Potosi Correctional Center. filed by Timothy Johnston. (CDD, ) (Entered: 08/16/2004)
Receipt # S2004-009604 in the amount of $150.00 for CIVIL FILING FEE, CIVIL FILING FEE-2ND 1/2 on behalf of GORLA, MICHAEL J.. (CSW,) (Entered: 08/16/2004)
2 WAIVER OF SERVICE Returned Executed filed by Gary B. Kemper, James Purkett, Donald P. Roper Gary B. Kemper waiver signed on 9/15/2004, answer due 11/15/2004; James Purkett waiver signed on 9/15/2004, answer due 11/15/2004; Donald P. Roper waiver signed on 9/15/2004, answer due 11/15/2004. (McElvein, Denise) (Entered: 09/15/2004)
3 ORDER - IT IS THEREFORE HEREBY ORDERED that Senior Judge Stephen N. Limbaugh recuses himself from this action. Signed by Judge Stephen N. Limbaugh on 10/4/04. (ARL) (Entered: 10/04/2004)
4 ORDER (JGW) IT IS HEREBY ORDERED that this case has been reassigned to the Honorable Donald J. Stohr, United States District Judge. In all future documents filed with the court, please use the following case number: 4:04CV1075 DJS. (ARL) (Entered: 10/05/2004)
5 ORDER OF INITIAL DISCOVERY; ORDERED plaintiff(s) shall forthwith serve process or mail waiver of service. ORDERED notwithstanding FRCP 26(d) and (f), any party who has entered an appearance may serve interrogatories and request for production or inspection upon plaintiff at any time and upon any other party after that party's entry of appearance. Parties shall respond to discovery requests w/in 30 days of service of discovery requests. No party may take oral depositions or serve requests for admissions prior to the Court's issuance of a CMO. As permitted by this Order, discovery shall commence immediately. FURTHER ORDERED plaintiff(s) shall serve a copy of this order along w/discovery requests to a party who has not entered an appearance as of the date of this order. Signed by Judge Donald J. Stohr on 10/6/04. (LGK, ) (Entered: 10/06/2004)
6 ENTRY of Appearance by Denise Garrison McElvein Defendants Gary B. Kemper, James Purkett, Donald P. Roper. (McElvein, Denise) (Entered: 10/14/2004)
7 MOTION for Extension of Time to File Answer re 1 Complaint, by Defendants Gary B. Kemper, James Purkett, Donald P. Roper. (McElvein, Denise) (Entered: 10/14/2004)

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10/18/2004 11/15/2004 11/15/2004 11/16/2004 11/17/2004 12/06/2004 12/14/2004 12/15/2004 12/20/2004 03/03/2005 03/03/2005 03/03/2005 03/09/2005

Docket Text ORDER re 7: Defendants' MOTION for Extension of Time to File Answer re 1 Complaint, GRANTED. Signed by Judge Donald J. Stohr on 10/18/04. (LCL) (Entered: 10/18/2004)
8 MOTION to Dismiss Case by Defendants Gary B. Kemper, James Purkett, Donald P. Roper. (McElvein, Denise) (Entered: 11/15/2004)
9 MEMORANDUM in Support of Motion re 8 MOTION to Dismiss Case filed by Defendants Gary B. Kemper, James Purkett, Donald P. Roper. (McElvein, Denise) (Entered: 11/15/2004)
10 MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Dismiss Case by Plaintiff Timothy Johnston. (Gorla, Michael) (Entered: 11/16/2004)
Docket Text ORDER re 10: Plaintiff's MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Dismiss Case, GRANTED. Signed by Judge Donald J. Stohr on 11/17/04. (LCL) (Entered: 11/17/2004)
11 RESPONSE in Opposition re 8 MOTION to Dismiss Case filed by Plaintiff Timothy Johnston. (Attachments: # 1 Exhibit Plaintiff's Exhibit A)(Gorla, Michael) (Entered: 12/06/2004)
12 MOTION for Extension of Time to File Response/Reply as to 11 Response in Opposition to Motion by Defendants Gary B. Kemper, James Purkett, Donald P. Roper. (McElvein, Denise) (Entered: 12/14/2004)
Docket Text ORDER: Defendants' Motion for Extension of Time [Doc. #12] is GRANTED, and defendants may reply in support of their motion to dismiss no later than December 20, 2004. Signed by Judge Donald J. Stohr on 12/15/2004. (DKW) (Entered: 12/15/2004)
13 REPLY (to termed motion) re 8 MOTION to Dismiss Case filed by Defendants Gary B. Kemper, James Purkett, Donald P. Roper. (Attachments: # 1)(McElvein, Denise) (Entered: 12/20/2004)
14 MOTION to Compel Defendant Kempker's Answers to Interrogatories by Plaintiff Timothy Johnston. (Attachments: # 1 Exhibit Exh. 1-McElvein Letter Feb. 4, 2005# 2 Exhibit Exh. 2-Gorla Letter Feb. 10, 2005# 3 Exhibit Exh. 3-Gorla Letter Feb. 18, 2005)(Gorla, Michael) (Entered: 03/03/2005)
15 MOTION to Compel Defendant Roper's Answers to Interrogatories by Plaintiff Timothy Johnston. (Attachments: # 1 Exhibit Exh. 1-McElvein Letter Feb. 4, 2005# 2 Exhibit Exh. 2-Gorla Letter Feb. 10, 2005# 3 Exhibit Exh. 3-Gorla Letter Feb. 18, 2005)(Gorla, Michael) (Entered: 03/03/2005)
16 MOTION to Compel Defendant Purkett's Answers to Interrogatories by Plaintiff Timothy Johnston. (Attachments: # 1 Exhibit Exh. 1-McElvein Letter Feb. 4, 2005# 2 Exhibit Exh. 2-Gorla Letter Feb. 10, 2005# 3 Exhibit Exh. 3-Gorla Letter Feb. 18, 2005)(Gorla, Michael) (Entered: 03/03/2005)
17 MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Compel Defendant Kempker's Answers to Interrogatories, 15 MOTION to Compel Defendant Roper's Answers to Interrogatories, 16 MOTION to Compel

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03/10/2005 03/22/2005 03/22/2005 03/22/2005 03/25/2005 03/28/2005 03/31/2005
04/14/2005 04/14/2005 04/18/2005
04/28/2005 04/28/2005

Defendant Purkett's Answers to Interrogatories by Defendants Gary B. Kemper, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 03/09/2005)
Docket Text ORDER re 17: Defendants' MOTION for Extension of Time to File Response/Reply as to [14, 15 and 16] MOTIONS to Compel, GRANTED. Signed by Judge Donald J. Stohr on 3/10/05. (LCL) (Entered: 03/10/2005)
18 RESPONSE in Opposition re 14 MOTION to Compel Defendant Kempker's Answers to Interrogatories filed by Defendant Gary B. Kemper. (Attachments: # 1 Exhibit A# 2 Exhibit B)(McElvein, Denise) (Entered: 03/22/2005)
19 RESPONSE in Opposition re 15 MOTION to Compel Defendant Roper's Answers to Interrogatories filed by Defendant Donald P. Roper. (Attachments: # 1 Exhibit A)(McElvein, Denise) (Entered: 03/22/2005)
20 RESPONSE in Opposition re 16 MOTION to Compel Defendant Purkett's Answers to Interrogatories filed by Defendant James Purkett. (Attachments: # 1 Exhibit A)(McElvein, Denise) (Entered: 03/22/2005)
21 MOTION for Leave to File Additional Authority by Plaintiff Timothy Johnston. (Gorla, Michael) (Entered: 03/25/2005)
Docket Text ORDER: Plaintiff's Motion for Leave of Court to File Additional Authority [Doc. #21] is granted. Signed by Judge Donald J. Stohr on 3/28/2005. (DKW) (Entered: 03/28/2005)
22 MEMORANDUM in Support of Motion re 14 MOTION to Compel Defendant Kempker's Answers to Interrogatories, 15 MOTION to Compel Defendant Roper's Answers to Interrogatories, 16 MOTION to Compel Defendant Purkett's Answers to Interrogatories filed by Plaintiff Timothy Johnston. (Gorla, Michael) (Entered: 03/31/2005)
23 MOTION to Supplement 8 MOTION to Dismiss Case by Defendants Gary B. Kemper, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 04/14/2005)
24 Supplemental Memorandum in Support of Motion to dismiss (#8) (McElvein, Denise) Modified on 4/18/2005 (JWJ, ). (Entered: 04/14/2005)
25 ORDER granting 23 Motion to Supplement IT IS HEREBY ORDERED that defendants Supplemental Motion To Dismiss is construed as a motion for leave to supplement their earlier filed motion to dismiss, and so construed is granted. IT IS FURTHER ORDERED that the Clerk shall correct the docket entry of doc #24 from motion to supplement, ect to Supplemental Memorandum in support of motion to dimsiss. IT IS FURTHER ORDERED that plaintiff may file a memorandum in response to defendants supplemental memorandum no later than 4/28/05 and defendants may file a reply no later than 5/10/05 Signed by Judge Donald J. Stohr on 4/18/05. (JWJ, ) (Entered: 04/18/2005)
26 MOTION to Substitute Party by Plaintiff Timothy Johnston. (Gorla, Michael) (Entered: 04/28/2005)
27 RESPONSE in Opposition re 8 MOTION to Dismiss Case - Supplemental Memorandum in Support filed by Plaintiff Timothy Johnston. (Gorla, Michael) (Entered: 04/28/2005)

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05/09/2005 05/10/2005 05/16/2005 05/17/2005 05/18/2005 05/18/2005 05/27/2005
06/08/2005 06/13/2005
06/13/2005 06/22/2005 06/22/2005 06/22/2005

29 MOTION to Intervene and MOTION to Appoint Counsel by Movant Donald J. Hall. (MRC, ) (Entered: 05/10/2005)
28 REPLY to Response to Motion re 8 MOTION to Dismiss Case filed by Defendants Gary B. Kemper, Donald P. Roper, James Purkett. (Attachments: # 1 Exhibit A)(McElvein, Denise) (Entered: 05/10/2005)
30 MOTION for Extension of Time to File Response/Reply as to 29 MOTION to Appoint Counsel MOTION to Intervene by Defendants Gary B. Kemper, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 05/16/2005)
Docket Text ORDER re 30: Defendants' MOTION for Extension of Time to May 27, 2005, to File Response/Reply as to 29 MOTION to Intervene, GRANTED. Signed by Judge Donald J. Stohr on 5/17/05. (LCL) (Entered: 05/17/2005)
ORDER RECEIPT: (see receipt) Wed May 18 10:10:19 CDT 2005 (LGK, ) (Entered: 05/18/2005)
***REMARK - coy of order dated 5/17/04 mailed to Donald Hall at Potosi Correctional Center. (LGK, ) (Entered: 05/18/2005)
31 RESPONSE in Opposition re 29 MOTION to Appoint Counsel MOTION to Intervene opposition applies only to 29 Motion to Intervene filed by Defendants Gary B. Kemper, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 05/27/2005)
32 REPLY to Response to Motion re 29 MOTION to Intervene filed by Movant Donald J. Hall. (KXS, ) (Entered: 06/08/2005)
33 IT IS HEREBY ORDERED that the motion to dismiss of defendants Kempker, Roper and Purkett [Doc. #8] is denied.IT IS FURTHER ORDERED that plaintiff's unopposed motion for substitution of party under Fed.R.Civ.P. 25(d) [Doc. #26] is granted.IT IS FURTHER ORDERED that, as the current Director of the Missouri Department of Corrections, Larry Crawford is substituted in place of Gary B. Kempker as party-defendant. The Clerk shall reflect the substitution on the docket, and the parties shall henceforth reflect the substitution in the caption of the case. Larry Crawford rep by Denise Garrison McElvein added. Gary B. Kemper terminated, denying 8 Motion to Dismiss Case. Signed by Judge Donald J. Stohr on 6/13/05. (JWJ) (Entered: 06/13/2005)
ORDER RECEIPT: (see receipt) Mon Jun 13 15:36:21 CDT 2005 (JWJ, ) (Entered: 06/13/2005)
34 ORDER IT IS HEREBY ORDERED that the motion of Donald J. Hall tointervene and for appointment of counsel [Doc. #29] is denied. Signed by Judge Donald J. Stohr on 6/22/05. (JWJ, ) (Entered: 06/22/2005)
ORDER RECEIPT: (see receipt) Wed Jun 22 11:32:16 CDT 2005 (JWJ, ) (Entered: 06/22/2005)
35 ORDER REQUIRING JOINT PROPOSED SCHEDULING PLAN This case is assigned to Track: Complex Joint Scheduling Plan due by 7/11/2005.. Signed by Judge Donald J. Stohr on 6/22/05. (JWJ, ) (Entered: 06/22/2005)

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ORDER RECEIPT: (see receipt) Wed Jun 22 11:35:22 CDT 2005 (JWJ, ) (Entered: 06/22/2005)
36 MOTION for Extension of Time to File Answer re 1 Complaint, by Defendants Larry Crawford, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 06/22/2005)
Docket Text ORDER re 36: Defendants' MOTION for Extension of Time to File Answer re 1 Complaint, GRANTED. Signed by Judge Donald J. Stohr on 6/22/05. (LCL) (Entered: 06/22/2005)
37 ORDER IT IS HEREBY ORDERED that plaintiff's motions to compeldefendant Kempker?s (now Crawford's), defendant Roper's and4defendant Purkett's answers to interrogatories [Docs. #14, #15, and#16] are granted in part as follows, and denied in part.IT IS FURTHER ORDERED that the parties shall conferforthwith and employ their best efforts to formulate a mutuallyacceptable proposed protective order appropriately limiting the useand disclosure of the identities of corrections personnel involvedin executions. Within fourteen (14) days of the date of thisorder, the parties shall file a joint motion for the entry of aprotective order, accompanied by their agreed-upon proposed order.In the event that the parties fail to reach complete agreement,their joint motion should be accompanied by a proposed orderincluding all the terms to which the parties agree, and the motionshould set forth, for each disputed issue, each party's proposedlanguage.IT IS FURTHER ORDERED that, within twenty (20) days ofthe Court's entry of a protective order as contemplated above,defendants shall serve on plaintiff their full and completeresponses to : Interrogatory 1;Interrogatory 2, except as to subpart (k); Interrogatory 3, limited to the last four Missouri executions; Interrogatory 4, except as to subpart (h) and limited to thelast ten Missouri executions;5 Interrogatory 5, limited to the time period from 2000 topresent; and Interrogatory 6, limited to the last four Missouri executions. Signed by Judge Donald J. Stohr on 6/2/05. (JWJ, ) (Entered: 06/23/2005)
38 Joint MOTION for Extension of: Time to File Joint Proposed Scheduling Plan by Defendants Larry Crawford, Donald P. Roper, James Purkett, Plaintiff Timothy Johnston. (McElvein, Denise) (Entered: 06/28/2005)
Docket Text ORDER re 38: Joint MOTION for Extension of Time to August 1, 2005 to File Joint Proposed Scheduling Plan, GRANTED. Signed by Judge Donald J. Stohr on 6/29/05. (LCL) (Entered: 06/29/2005)
39 ANSWER to Complaint with Jury Demand by Larry Crawford, Donald P. Roper, James Purkett.(McElvein, Denise) (Entered: 06/30/2005)
40 MOTION for Extension of Time to File ;Extension to file the following: Joint Motion for Entry of a Protective Order ;Proposed extension date July 25, 2005 by Plaintiff Timothy Johnston. (Gorla, Michael) (Entered: 07/07/2005)
Docket Text ORDER re 40: MOTION for Extension of Time to July 25, 2005, to File a Joint Motion for Entry of a Protective Order, GRANTED. Signed by Judge Donald J. Stohr on 7/8/05. (LCL) (Entered: 07/08/2005)
41 Joint MOTION for Extension of: Time to File Joint Motion For Protective Order and Draft of Agreed Protective Order by Defendants Larry Crawford, Donald P.

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Roper, James Purkett, Plaintiff Timothy Johnston. (McElvein, Denise) (Entered: 07/25/2005)
42 ORDER IT IS HEREBY ORDERED that the parties' joint motion forextension of time [Doc. #41] is granted. The parties shall filetheir Joint Motion for Protective Order and Agreed Protective Orderno later than August 1, 2005. Signed by Judge Stephen N. Limbaugh on 7/26/05. (KXS, ) (Entered: 07/26/2005)
43 JOINT SCHEDULING PLAN by Plaintiff Timothy Johnston.. (Gorla, Michael) (Entered: 08/01/2005)
44 Joint MOTION for Protective Order by Defendants Unknown Executioners, Larry Crawford, Donald P. Roper, James Purkett. (Attachments: # 1)(McElvein, Denise) (Entered: 08/01/2005)
45 PROTECTIVE ORDER IT IS HEREBY ORDERED that the parties' joint motion forthe entry of a protective order [Doc. #44] is granted and theparties' agreed protective order is approved by the Court subjectto the following limitations. By its approval of the stipulatedprotective order, the Court in no way limits its authority anddiscretion to determine the following: (1) in each instance inwhich a party desires to file any material with the Court underseal, whether or not to permit the material to be filed under seal;(2) the extent to which any confidentiality considerations shall inany way govern the use of any material in any proceedings beforethe Court; and (3) the disposition of sealed Court filings beforeor after termination of these proceedings. Any and all provisionsof the stipulated protective order which conflict with theselimitations are disapproved to the extent that they so conflict. IT IS FURTHER ORDERED that any motion relating to theprotective order shall be subject to the requirements of E.D.Mo.L.R. 3.04(A). Signed by Judge Stephen N. Limbaugh on 8/3/05. (KXS, ) (Entered: 08/03/2005)
46 MOTION to Expedite Defendants' Answers to Plaintiff's Interrogatories by Plaintiff Timothy Johnston. (Attachments: # 1)(Gorla, Michael) (Entered: 08/05/2005)
47 MOTION to Expedite a Hearing on the Merits by Defendants Larry Crawford, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 08/08/2005)
48 MEMORANDUM in Support of Motion re 47 MOTION to Expedite a Hearing on the Merits filed by Defendants Larry Crawford, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 08/08/2005)
49 ORDER - IT IS HEREBY ORDERED that plaintiff's motion for order expediting defendants' answers to plaintiff's interrogatories is Granted. Defendant shall no later than August 13, 2005 shall serve on plaintiff their full and complete responses to: [See Order For Complete Details] IT IS FURTHER ORDERED that defendants' motion to expedite a hearing on the merits is Denied.re 47 MOTION to Expedite a Hearing on the Merits filed by James Purkett,, Donald P. Roper,, Larry Crawford,, 46 MOTION to Expedite Defendants' Answers to Plaintiff's Interrogatories filed by Timothy Johnston, . Signed by Judge E. Richard Webber on 8/8/2005. (MRC, ) (Entered: 08/08/2005)

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50 AFFIDAVIT re 48 Memorandum in Support of Motion by Defendants Larry Crawford, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 08/08/2005)
51 DECLARATION filed by Defendants Larry Crawford, Donald P. Roper, James Purkett re 48 Memorandum in Support of Motion. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(McElvein, Denise) (Entered: 08/09/2005)
52 AFFIDAVIT re 48 Memorandum in Support of Motion by Defendants Larry Crawford, Donald P. Roper, James Purkett. (Attachments: # 1 Affidavit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(McElvein, Denise) (Entered: 08/09/2005)
53 MOTION for Reconsideration re 49 Order,, the Part of the Order Requiring Disclosures of the Names of Those who will Carry Out Plaintiff's Lethal Injection by Defendants Larry Crawford, Donald P. Roper, James Purkett. (Attachments: # 1 Affidavit)(McElvein, Denise) (Entered: 08/12/2005)
54 ORDER IT IS HEREBY ORDERED that defendant's motion to reconsider[Doc. #53] is denied. Signed by Judge E. Richard Webber on 8/12/05. (JWJ, ) (Entered: 08/12/2005)
55 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) by Plaintiff Timothy Johnston. (Attachments: # 1)(Gorla, Michael) (Entered: 08/15/2005)
56 Letter to Judge Stohr from defendant's counsel (KXS, ) (Entered: 08/15/2005)
57 Copy of petition for writ of prohibition filed in the Eighth Circuit Court of Appeals (Attachments: # 1 Exhibits) (KXS, ) (Entered: 08/15/2005)
58 MOTION for Summary Judgment by Defendants Larry Crawford, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 08/16/2005)
59 MEMORANDUM in Support of Motion re 58 MOTION for Summary Judgment and for a Hearing on the Merits filed by Defendants Larry Crawford, Donald P. Roper, James Purkett. (Attachments: # 1 Affidavit Crawford# 2 Affidavit Dershwitz# 3 Exhibit A# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D# 7 Statement of Uncontroverted Material Facts)(McElvein, Denise) (Entered: 08/16/2005)
60 MOTION to Expedite Plaintiff's Responses to Defendants' Motion for Summary Judgment by Defendants Larry Crawford, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 08/16/2005)
62 LETTER from USCA Appeal #: 05-3228 regarding petition for writ of prohibition being filed.(JWJ, ) (Entered: 08/17/2005)
61 RESPONSE in Opposition re 60 MOTION to Expedite Plaintiff's Responses to Defendants' Motion for Summary Judgment filed by Plaintiff Timothy Johnston. (Gorla, Michael) (Entered: 08/17/2005)
63 REPLY to Response to Motion re 60 MOTION to Expedite Plaintiff's Responses to Defendants' Motion for Summary Judgment filed by Defendants Larry Crawford, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 08/17/2005)

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64 Copy of Answer to petition for immediate writ of prohibition filed with the USCA. (KXS, ) (Entered: 08/18/2005)
65 MOTION for Temporary Restraining Order and Preliminary Injunction by Plaintiff Timothy Johnston. (Gorla, Michael) (Entered: 08/18/2005)
66 MEMORANDUM in Support of Motion re 65 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff Timothy Johnston. (Attachments: # 1 # 2 # 3 # 4)(Gorla, Michael) (Entered: 08/18/2005)
67 Appeal Remark USCA Appeal #: 05-3228 (copy of petitioners reply in support of their petition for immediate writ of prohibition) filed in the district court record. (JWJ, ) (Entered: 08/22/2005)
69 REASSIGNMENT ORDER (jgw). - IT IS HEREBY ORDERED that the case is transferred to United States District Judge Charles A. Shaw. Judge Donald J. Stohr termed. Case reassigned to Judge Charles A. Shaw for all further proceedings (MRC, ) (Entered: 08/22/2005)
68 ORDER IT IS HEREBY ORDERED that an evidentiary hearing ondefendants' motion for summary judgment and plaintiff's motion fortemporary restraining order and preliminary injunction is setbefore the undersigned in Courtroom 12 North at 11:00 a.m. onFriday, August 26, 2005.IT IS FURTHER ORDERED that defendants' motion to expediteplaintiff's responses to defendants' motion for summary judgment[Doc. #60] is granted as follows.IT IS FURTHER ORDERED that plaintiff shall electronicallyfile his memorandum in opposition to the motion for summaryjudgment no later than 3:00 p.m. on Wednesday, August 24, 2005, anddefendants shall electronically file their reply no later than noonon Thursday, August 25, 2005. IT IS FURTHER ORDERED that defendants shallelectronically file their memorandum in opposition to the motionfor temporary restraining order and preliminary injunction no laterthan 3:00 p.m. on Wednesday, August 24, 2005, and plaintiff shallelectronically file his reply no later than noon on Thursday,August 25, 2005. Signed by Judge Charles A. Shaw on 8/22/05. (JWJ, ) (Entered: 08/22/2005)
70 RESPONSE in Opposition re 65 MOTION for Temporary Restraining Order and Preliminary Injunction and Further Support of Motion for Summary Judgment filed by Defendants Larry Crawford, Donald P. Roper, James Purkett. (Attachments: # 1 Affidavit Crawford# 2 Affidavit Dershwitz# 3 Exhibit A. Affidavit of Dershwitz# 4 Exhibit B. Affidavit of Dershwitz# 5 Exhibit C. Affidavit of Dershwitz# 6 Exhibit D. Affidavit of Dershwitz# 7 2nd Declaration of Dershwitz)(McElvein, Denise) (Entered: 08/23/2005)
71 MOTION to Seal Document by Defendants Larry Crawford, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 08/23/2005)
72 MOTION to Continue and Postpone Summary Judgment Decision to Permit Adequate Discovery by Plaintiff Timothy Johnston. (Attachments: # 1)(Gorla, Michael) (Entered: 08/23/2005)
73 ORDER IT IS HEREBY ORDERED that plaintiff's motion forcontinuance and postponement of summary judgment decision to permitadequate discovery [Doc. #72] is denied.IT IS FURTHER ORDERED that defendants' motion to fileunder

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seal [Doc. #71] is granted, and defendants are granted leaveto submit defendant Crawford's original and supplementalinterrogatory answers under seal. Signed by Judge Charles A. Shaw on 8/23/05. (KXS, ) (Entered: 08/23/2005)
74 SUPPLEMENTAL EXHIBIT: Defendant Crawford's Answers to Plaintiff's First Set of Interrogatories. re 70 Response in Opposition to Motion, by Defendant Larry Crawford.FILED UNDER SEAL(MRC, ) (Entered: 08/24/2005)
75 SUPPLEMENTAL EXHIBIT: First Supplemental Answers to Plaintiff's First Set of Interrogatories. re 70 Response in Opposition to Motion, by Defendant Larry Crawford.FILED UNDER SEAL (MRC, ) (Entered: 08/24/2005)
76 Appeal Remark USCA Appeal #: 05-3228 (copy of Motion for rehearing or rehearing en banc ) filed in the district court record(JWJ, ) (Entered: 08/24/2005)
77 MEMORANDUM in Opposition re 58 MOTION for Summary Judgment filed by Plaintiff Timothy Johnston. (Attachments: # 1 # 2)(Gorla, Michael) (Entered: 08/24/2005)
83 ORDER of USCA USCA Appeal #: 05-3228 Petition for writ of prohibition has been considered by the Court and is denied.(KXS, ) (Entered: 08/26/2005)
78 MOTION for Leave to Attach Affidavits Which Have Been Previously Filed to Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment by Plaintiff Timothy Johnston. (Attachments: # 1 # 2 # 3 # 4)(Gorla, Michael) (Entered: 08/25/2005)
79 REPLY to Response to Motion re 58 MOTION for Summary Judgment filed by Defendants Larry Crawford, Donald P. Roper, James Purkett. (Attachments: # 1 Affidavit Dershwitz# 2 Exhibit A. Affidavit Dershwitz# 3 Exhibit B. Affidavit Dershwitz# 4 Exhibit C. Affidavit Dershwitz# 5 Exhibit D. Affidavit Dershwitz# 6 Declaration of Dershwitz)(McElvein, Denise) (Entered: 08/25/2005)
80 MOTION to Seal Document by Defendants Larry Crawford, Donald P. Roper, James Purkett. (McElvein, Denise) (Entered: 08/25/2005)
81 REPLY to Response to Motion re 65 MOTION for Temporary Restraining Order and Preliminary Injunction Memorandum in Opposition filed by Plaintiff Timothy Johnston. (Attachments: # 1)(Gorla, Michael) (Entered: 08/25/2005)
82 ORDER IT IS HEREBY ORDERED that plaintiff's motion for leave to attach affidavits which havebeen previously filed to plaintiff's memorandum in opposition to defendants' motion for summaryjudgment [Doc. #78] is granted, and the affidavits attached to the motion [Docs. #78.1 through#78.4] will be construed as submitted in support of plaintiff's memorandum in opposition [Doc. #77].IT IS FURTHER ORDERED that defendants' motion to file under seal [Doc. #80] isgranted, and defendants are granted leave to submit defendant Crawford?s original and supplementalinterrogatory answers under seal.Signed by Judge Charles A. Shaw on 8/25/05. (JWJ, ) (Entered: 08/25/2005)
84 SUPPLEMENTAL EXHIBIT: Defendant Crawford's Answers To Plaintiff's First Set of Interrogatories re 79 Reply to Response to Motion, by Defendant Larry Crawford. FILED UNDER SEAL(MRC, ) (Entered: 08/26/2005)

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85 SUPPLEMENTAL EXHIBIT: Defendant Crawford's First Supplemental Answers To Plaintiff's First Set Of Interrogatories re 79 Reply to Response to Motion, by Defendant Larry Crawford.FILED UNDER SEAL (MRC, ) (Entered: 08/26/2005)
92 ORDER of USCA USCA Appeal #: 05-3228 Petition for rehearing en banc is denied. Petition for rehearing by the panel also denied. (KXS, ) (Entered: 08/29/2005)
86 MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that plaintiff's motion for temporary restraining order and preliminary injunction is DENIED. IT IS FURTHER ORDERED that defendants' motion for summary judgment is GRANTED. An appropriate judgment will accompany this memorandum and order. re:58 MOTION for Summary Judgment filed by James Purkett,, Donald P. Roper,, Larry Crawford,, 65 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Timothy Johnston, . Signed by Judge Charles A. Shaw on 8/26/2005. (MRC, ) (Entered: 08/26/2005)
PUBLISHED Fri Aug 26 15:06:21 CDT 2005 Document # 86 - Memorandum and Order by (MRC, ) (Entered: 08/26/2005)
87 JUDGMENT - Pursuant to the memorandum and order entered herein this day, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that summary judgment is entered in favor of defendants and against plaintiff on all claims asserted in plaintiff's complaint. . Signed by Judge Charles A. Shaw on 8/26/2005. (MRC, ) (Entered: 08/26/2005)
PUBLISHED Fri Aug 26 15:16:34 CDT 2005 Document # 87 - Judgment by (MRC, ) (Entered: 08/26/2005)
88 ORDER - IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED and plaintiff is granted leave to appeal in forma pauperis. re 55 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Timothy Johnston, . Signed by Judge Charles A. Shaw on 8/26/2005. (MRC, ) (Entered: 08/26/2005)
91 Minute Entry for proceedings held before Judge Charles A. Shaw : Motion Hearing held on 8/26/2005 re 58 MOTION for Summary Judgment filed by James Purkett,, Donald P. Roper,, Larry Crawford,, 65 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Timothy Johnston,. The court will issue an order (Court Reporter or FTR Gold Operator initials:sue moran.) (FTR Gold yes or no: no.) (proceedings started: 10:00.) (proceedings ended: 12:00.) (JWJ, ) (Entered: 08/29/2005)
89 ORIGINAL TRANSCRIPT (Pilot) procedings of Hearing on Motion for Temporary Restraining Order held on 8/26/05 before Judge Charles A. Shaw. Court Reporter: S. Moran. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, ) (Entered: 08/29/2005)

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90 NOTICE OF APPEAL by Plaintiff Timothy Johnston. Filing fee $ 255. (Attachments: # 1)(Gorla, Michael) (Entered: 08/29/2005)
93 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by clerk to USCA regarding 86 Memorandum & Order, 89 Original Transcript was hand delivered to USCA, 87 Judgment, and 88 Order. Notice of Appeal filed on 08/29/05 by Plaintiff Timothy Johnston. NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE. SUBMIT FORM A & B TO EIGHTH CIRCUIT CLERKS OFFICE.(CDF). (Entered: 08/30/2005)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Tue Aug 30 09:13:28 CDT 2005 (CDF, ) (Entered: 08/30/2005)
94 ENTRY of Appearance by Stephen D. Hawke Defendants Unknown Executioners, Larry Crawford, Donald P. Roper, James Purkett. (Hawke, Stephen) (Entered: 08/30/2005)
96 LETTER from USCA USCA Appeal #: 05-3353 reLf iling of emergency mtn for stay of execution(KXS, ) (Entered: 09/01/2005)
95 Appeal Transmittal: USCA Appeal #: 05-3353. The following has been forwarded to USCA: Five (5) volumes of the Electronic Case File. 90 Notice of Appeal was forwarded to USCA on 08/30/05.(CDF) (Entered: 08/31/2005)
97 LETTER from USCA USCA Appeal #: 05-3353(KXS, ) (Entered: 09/01/2005)
98 SECOND AMENDED ORDER of USCA USCA Appeal #: 05-3353 (see order for details)(KXS, ) (Entered: 09/08/2005)

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 05-3353 Summary

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General Docket Eighth Circuit Court of Appeals

Court of Appeals Docket #: 05-3353 Nsuit: 3550 Prisoner - Civil Rights Timothy Johnston v. Donald Roper, et al Appeal From: U.S. District Court for the Eastern District of Missouri - St. Louis

Case Type Information: 1) Prisoner 2) State 3) Civil Rights

Originating Court Information: District: 0865-4 : 4:04-cv-1075 DJS Trial Judge: Charles A. Shaw, U.S. District Judge Date Filed: 08/16/2004 Date Order/Judgment: 08/26/2005

Date NOA Filed: 08/29/2005

Filed: 08/29/2005 Termed: 08/30/2005

08/30/2005
08/30/2005 08/30/2005

RESPONSE of aplee, Donald P. Roper, in opposition to appellant motion for Stay of Execution filed by Timothy Johnston [1945554-1] [1945928] .
REPLY filed by Timothy Johnston [05-3353]
JUDGMENT: Kermit E. Bye, Gerald W. Heaney, Pasco M. Bowman. Johnston's motion for Stay of Execution scheduled for Wednesday, August 31, at 12:01 a.m., is granted until Thursday, September 8, 2005, at 12:01 a.m. [1945554-1] [05-3353] [1946301] :GRANTED. Bowman, Circuit Judge, dissenting. This is a 42 U.S.C. Section 1983 case raising an Eighth Amendment challenge to the lethal injection protocol used by the State of Missouri in executing prisoners in capital cases. The district court concluded that in seeking a stay of execution pending the court's decision on the merits of the case, Johnston had shown neither a threat of irreparable harm (i.e., wantonly inflicted pain) nor the probability of his success on the merits (citing Dataphas Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981). The district court denied the stay and granted summary judgment to the State on the merits of Johnston's constitutional claim. As I see no clear error in the court's factual findings, nor errors in its conclusions of law, I would deny Johnston's emergency motion for stay of execution. Johnston still has not shown either a threat of irreparable harm nor the probability of success on the merits. To the contrary, the record in this probability of success on the merits. To the contrary, the record in this case establishes that the protocol has been carefully designed to avoid the infliction of pain and that any chance the carrying out of the protocol will in fact cause Johnston any pain at all is virtually nil. There thus is no reason to postpone the scheduled execution date. [05-3353] [1946301]

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PETITION for REHEARING with petition for rehearing en banc. Filed by Appellees Donald P. Roper, w/service ., TO COURT [05-3353]
JUDGE ORDER: granting appellees' petition for rehearing with petition for rehearing en banc, and the stay of execution granted by the panel is vacated. Chief Judge Loken, Judge Bye, and Judge Melloy would deny the petition for rehearing and in place the panel's stay of execution. Judge Colloton and Judge Benton took no part in this vote. . [1946321-1] [05-3353] [1946322]
AMENDED ORDER filed amending the order granting the petition for rehearing en banc to read that only Judge Benton took no part in the vote. [05-3353] [1946325]
U.S. Supreme Court order DENYING motion for stay of execution. [05-3353] [1946327] . Order filed in the Supreme Court on 8/30/05 Sup. Ct. No. 545 [05-3353]
Prisoner Executed 12:07 a.m. [05-3353]
RECORDS received: Original File, consisting of 4 Volumes ECF file - vols. 1, 2, 3, and 4. Location STL. [05-3353]
JUDGE ORDER: to amend previous order of 8/30/05 . [05-3353] [1947267], - Published Order. Judge Heaney's dissent is appended - "I cannot vote to send Timothy Johnston to his death tonight without first having an opportunity to review the entire district court record relating to his claim that Missouri's execution protocol subjects him to cruel and unusual punishment. I voted to stay Johnston's execution for the modest period of roughly one week to provide myself and the other judges an opportunity to review the entire record, rather than the incomplete record we have so far received. The state opposed Johnston's motion to stay his execution and has nowaattempted to convince a majority of our en banc court that its interest in a swift execution is more important than allowing this court to review the entire record so as to make an informed decision about whether Johnston's Eight Amendment claim has any merit. I reserve the right to set forth my views more fully at a later time.

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 421 F.3d 1152 (2005)
Timothy JOHNSTON, Appellant, v.
Donald P. ROPER, et al., Appellees.
No. 05-3353.
United States Court of Appeals, Eighth Circuit.
September 1, 2005.
Christopher Edward McGraugh, Leritz & Plunkert, Michael J. Gorla, St. Louis, MO, for Appellant.
Timothy Johnston, Mineral Point, MO, pro se.
Denise Garrison McElvein, Attorney General's Office, St. Louis, MO, for Appellees.
Before LOKEN, Chief Judge, WOLLMAN, ARNOLD, MURPHY, BYE, RILY, MELLOY, SMITH, COLLOTON and GRUENDER, Circuit Judges.
SECOND AMENDED ORDER
PER CURIAM.
Appellees' Petition for Rehearing En Bane is granted, and the stay of execution granted by the panel is vacated.
Chief Judge Loken, Judge Bye and Judge Melloy would deny the Petition for Rehearing.
Judge Duane Benton took no part in the vote on the Petition for Rehearing En Banc.
Rehearing En Banc having been granted, and the panel's stay order having been vacated, the matter comes before the Court En Banc, including Judge Heaney and Judge Bowman, on appellant's motion for a stay of execution of a sentence of death. The motion is denied.
Chief Judge Loken, Judge Heaney, Judge Bye and Judge Melloy would grant the motion.
Judge Duane Benton took no part in the vote on the motion for a stay of execution.

The clerk is directed to append Judge Heaney's dissent to this order. The order and the dissent shall be published.
HEANEY, Circuit Judge, dissenting.
I cannot vote to send Timothy Johnston to his death tonight without first having an opportunity to review the entire district court record relating to his claim that Missouri's execution protocol subjects him to cruel and unusual punishment. I voted to stay Johnston's execution for the modest period of roughly one week to provide myself and the other judges an opportunity to review the entire record, rather than the incomplete record we have so far received.
The state opposed Johnston's motion to stay his execution and has now attempted to convince a majority of our en bane court that its interest in a swift execution is more important than allowing this court to review the entire record so as to make an informed decision about whether Johnston's Eighth Amendment claim has any merit. I reserve the right to set forth my views more fully at a later time.