Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION AT FRANKFORT

ELECTRONICALLY FILED

____________________________________

THOMAS CLYDE BOWLING,

)

)

RALPH BAZE, and

)

)

JEFFREY LEONARD

)

)

Plaintiffs

)

)

v.

)

)

SCOTT HAAS, Medical Director

)

Kentucky Department of Corrections,)

)

JOHN D. REES, Commissioner,

)

Kentucky Department of Corrections,)

)

THOMAS SIMPSON, Warden,

)

Kentucky State Penitentiary, and )

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

CIV. ACTION # ________ CAPITAL CASE

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 2 of 11
I. NATURE OF ACTION 1. This action is brought pursuant to 28 U.S.C. §1331 for violations and threatened violations of the Federal Controlled Substances Act and the Federal Food, Drug, and Cosmetic Act. Plaintiffs seek equitable relief in the form of a declaratory judgment and a preliminary injunction. 2. Under the Supremacy Clause of the United States Constitution, Defendants (state actors) are required to obey the Federal Controlled Substances Act, 21 U.S.C. §§801, et seq., and the Federal Food, Drug and Cosmetic Act., 21 U.S.C. §§301, et seq. 3. Defendants carry out lethal injections in Kentucky by injecting sodium thiopental, pancuronium bromide, and potassium chloride. 4. The Federal Controlled Substances Act lists schedules for controlled substances. 5. The Federal Controlled Substances Act says how and by whom controlled substances can be distributed. 6. Sodium thiopental is a controlled substance. 7. Defendants’ means for obtaining the lethal injection chemicals does not comply with the Federal Controlled Substances Act. 8. The Federal Food, Drug and Cosmetic Act regulates permits the distribution of certain drugs only when a licensed medical practitioner issues a prescription. 9. Sodium thiopental is a schedule III drug. 10. No licensed medical practitioner prescribes sodium thiopental to Defendants for use in lethal injections. 11. The Federal Food, Drug and Cosmetic Act requires approval of drugs for the purposes in which they are intended to be used.
2

Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 3 of 11
12. Using sodium thiopental, pancuronium bromide, and potassium chloride in lethal injections has not been approved by the FDA. 13. Because the use of the above chemicals for lethal injections has not been approved by the FDA, Defendants’ use of these chemicals in lethal injections violates the Federal Food, Drug and Cosmetic Act. 14. Plaintiffs are not alleging that Defendants could never execute them by lethal injection. Rather, they assert that any execution by lethal injection must comport with the Federal Controlled Substances Act and the Federal Food, Drug and Cosmetic Act. 15. Plaintiffs seek a declaratory judgment that Defendants means for obtaining and administering the lethal injection chemicals violate the Federal Controlled Substances Act and the Federal Food, Drug and Cosmetic Act. 16. Plaintiffs seek an injunction barring Defendants from carrying out their execution in a manner that violates the Federal Controlled Substances Act and the Federal Food, Drug and Cosmetic Act.
II. PLAINTIFFS 17. Thomas Clyde Bowling is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death-sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky. 18. Ralph Baze is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death-sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky.
3

Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 4 of 11
19. Jeffrey Leonard is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death-sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky.1
III. DEFENDANTS 20. Defendant Scott Haas is the Medical Director for the Kentucky Department of Corrections. 21. Defendant John D. Rees is the Commissioner of the Kentucky Department of Corrections. 22. Defendant Thomas Simpson is the Warden of the Kentucky State Penitentiary, where Plaintiffs’ executions will occur. 23. Defendants Unknown Executioners are employed by or under contract with the Kentucky Department of Corrections, to make preparations for, and carry out Plaintiffs’ executions. They include, but are not limited, physicians, emergency medical technicians, phlebotomists, physicians assistants, the execution team, the executioner, the I.V. team, and the team leader. Plaintiffs do not know their identities and Defendants will not reveal the identities of these people.
IV. JURISDICTION AND VENUE 24. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights violation), 1651 (all writs), 2201 (declaratory relief), 2202 (further relief), 21 U.S.C. §332 (enjoining violations of the Federal Food, Drug, and Cosmetic Act); and Fed.R.Civ.P. 65 (injunctions).
1 Jeffrey Leonard was convicted and sentenced to death under the name James Slaughter. Because his real name is 4

Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 5 of 11
25. Venue is proper under 28 U.S.C. §1391. All Defendants reside in the same state. The principle place of business for Defendant Haas, and Defendant Rees is Frankfort, Kentucky. 26. All Defendants are state actors acting under color of state law.
V. FACTS 27. Plaintiff Thomas Clyde Bowling has exhausted all automatic avenues of appeal, but has been granted DNA testing. 28. Plaintiff Ralph Baze has also exhausted all automatic avenues of appeal and may have an execution date set soon. 29. The United States District Court for the Eastern District of Kentucky granted Jeffrey Leonard relief from his death sentence. That decision was overturned by the United States Court of Appeals for the Sixth Circuit. Rehearing en banc was denied by a 7-7 vote on November 1, 2006. Leonard has the automatic right to seek review by the Supreme Court of the United States and has so sought. His petition for a writ of certiorari is currently pending. 30. Defendants are responsible for carrying out executions in Kentucky. 31. Defendants intend to carry out Plaintiffs’ execution by injecting them with sodium thiopental, pancuronium bromide, and potassium chloride. 32. Either the Warden or the Commissioner of the Department of Corrections will purchase the lethal injection chemicals. 33. Neither the Warden nor the Commissioner of the Department of Corrections is a licensed physician. 34. 21 U.S.C. §812, part of the Federal Controlled Substances Act, creates five schedules of controlled substances.
Jeffrey Leonard, Leonard will be used throughout this litigation. 5

Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 6 of 11
35. Drugs are considered schedule I controlled substances if: a) the drug or other substance has a high potential for abuse; b) the drug or other substance has no currently accepted medical use in treatment in the Unites States; and, c) there is a lack of accepted safety for use of the drug or other substance under medical supervision.
36. Drugs are considered schedule II controlled substances if: a) the drug or substance has a high potential for abuse; b) the drug or substance has a currently accepted medical use in the United States or a currently accepted medical use with severe restrictions; and, c) abuse of the drug or other substances may lead to severe psychological or physical dependence.
37. Drugs are considered schedule III controlled substances if: a) the drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II; b) the drug or substance has a currently accepted medical use in the United States; and, c) abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.
38. Drugs are considered schedule IV controlled substances if: a) the drug or substance has a low potential for abuse relative to the drugs or other substances in schedule III; b) the drug or other substance has a currently accepted medical use in treatment in the United States; and,
6

Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 7 of 11
c) abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III. 39. Drugs are considered schedule V controlled substances if: a) the drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV; b) the drug or other substance has a currently accepted medical use in treatment in the United States; and, c) abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV. 40. Sodium Thiopental is a schedule III controlled substance. 41. Under 21 U.S.C. §829, part of the Federal Controlled Substances Act, unless dispensed directly by a practitioner other than a pharmacist, schedule III controlled substances may be dispensed only upon a prescription by a practitioner licensed by law to administer such a drug. 42. 21 U.S.C. §829 means that either a doctor medically licensed to administer sodium thiopental must administer the sodium thiopental to Plaintiffs, obtain the sodium thiopental, or issue a prescription for the use of the sodium thiopental. 43. A doctor medically licensed to administer sodium thiopental will not be administering sodium thiopental to Plaintiffs. 44. A doctor medically licensed to administer sodium thiopental will not be obtaining sodium thiopental for use as a lethal injection chemical. 45. A doctor medically licensed to administer sodium thiopental will not be prescribing sodium thiopental to Plaintiffs.
7

Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 8 of 11
46. Under the Federal Food, Drug and Cosmetic Act., only a licensed medical practitioner can obtain and use drugs that require a prescription. 47. Pancuronium bromide is a regulated substance. 48. No licensed medical practitioner will be obtaining or using pancuronium bromide or potassium chloride for the purpose of executing Plaintiffs. 49. Under the Federal Food, Drug and Cosmetic Act, before a drug can be used, the FDA must authorize its use for the purpose for which a person intends to use it. 50. The FDA has not authorized the use of sodium thiopental, pancuronium bromide, and potassium chloride for lethal injections. 51. The United States Government could prosecute Defendants for violating the Controlled Substances Act and for violating the Federal Food, Drug and Cosmetic Act. See Gonzales v. Raich, 545 U.S. 1 (2005). 52. Plaintiffs are not seeking to force the Food and Drug Administration or any other United States governmental agency or official to enforce the Controlled Substances Act or the Federal Food, Drug and Cosmetic Act. 53. Because Plaintiffs are not seeking enforcement of the Controlled Substances Act or the Federal Food, Drug and Cosmetic Act, neither the Federal Administrative Procedures Act nor Heckler v. Chaney, 470 U.S. 821 (1985), apply to this action.
VI. EXHAUSTION OF ADMINISTRATIVE REMEDIES 54. Although pleading exhaustion of administrative remedies is no longer a requirement, Plaintiffs have exhausted administrative remedies through the prison grievance system. The Commissioner’s Review, the final level of denial of the grievance, was rendered on May 1, 2007 and is attached as is the grievance appeal Plaintiffs filed with the Commissioner.
8

Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 9 of 11
VII. CLAIMS FOR RELIEF A. VIOLATION OF CONTROLLED SUBSTANCES ACT 55. Defendants intend to extinguish Plaintiffs’ lives by injecting them with sodium thiopental even though the thiopental will neither be injected by a doctor licensed to administer thiopental nor as a result of a prescription by a doctor licensed to administer thiopental. Because a doctor medically licensed to administer sodium thiopental will neither being administering nor prescribing sodium thiopental to Plaintiffs, injecting sodium thiopental into Plaintiffs will violate the Controlled Substances Act. B. ADMINISTERING CHEMICALS WITHOUT A DOCTOR’S PRESCRIPTION 56. Defendants intend to extinguish Plaintiffs’ lives by injecting them with pancuronium bromide and potassium chloride despite the fact that the drugs will be obtained without a prescription from a licensed medical practitioner. This violates the Federal Controlled Substances Act. C. ADMINISTERING DRUGS FOR A PURPOSE NOT APPROVED BY THE FDA 57. Defendants intend to extinguish Plaintiffs’ lives by injecting them with drugs that have not been approved by the FDA for the purpose of lethal injection. This violates the Federal Food, Drug and Cosmetic Act. 58. Plaintiffs are not seeking enforcement by the FDA but rather are seeking declaratory relief and an injunction barring Defendants from violating the Federal Food, Drug and Cosmetic Act. Thus, Heckler v. Chaney, 470 U.S. 821 (1985) is inapplicable.
9

Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 10 of 11
VIII. PRAYER FOR RELIEF 59. Plaintiffs request a declaratory judgment that carrying out a lethal injection using sodium thiopental when the thiopental is neither administered by a doctor licensed to administer it nor prescribed by a doctor licensed to do so violates the Federal Controlled Substances Act. 60. Plaintiffs request a preliminary injunction barring Defendants from injecting them with sodium thiopental unless it is done by a doctor licensed to administer sodium thiopental or as a result of a prescription issued by a doctor licensed to prescribe sodium thiopental. 61. Plaintiffs request a declaratory judgment that carrying out a lethal injection with chemicals obtained without a prescription from a licensed medical practitioner violates the Federal Controlled Substances Act. 62. Plaintiffs request a preliminary injunction barring Defendants from injecting them with chemicals obtained without a prescription from a licensed medical practitioner. 63. Plaintiffs request a declaratory judgment that carrying out a lethal injection with chemicals that have not been approved by the FDA for use in lethal injections violates the Federal Food, Drug and Cosmetic Act. 64. Plaintiffs request a preliminary injunction barring Defendants from injecting them with chemicals that have not been approved by the FDA for use in lethal injections.
10

Case 3:07-cv-00032-KKC Document 5-1 Filed 05/22/2007 Page 11 of 11 RESPECTFULLY SUBMITTED, /s/ David M. Barron ___________________________ DAVID M. BARRON JOHN ANTHONY PALOMBI Assistant Public Advocates Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
May 22, 2007
11

 
 Case 3:07-cv-00007-KKC Document 4-1 Filed 01/23/2007 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION AT FRANKFORT

ELECTRONICALLY FILED

____________________________________

THOMAS CLYDE BOWLING,

)

)

RALPH BAZE, and

)

)

JEFFREY LEONARD

)

)

Plaintiffs

)

)

v.

)

)

SCOTT HAAS, Medical Director

)

Kentucky Department of Corrections,)

)

JOHN D. REES, Commissioner,

)

Kentucky Department of Corrections,)

)

THOMAS SIMPSON, Warden,

)

Kentucky State Penitentiary, and )

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

CIV. ACTION # ________ CAPITAL CASE

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

Case 3:07-cv-00007-KKC Document 4-1 Filed 01/23/2007 Page 2 of 11
I. NATURE OF ACTION 1. This action is brought pursuant to 28 U.S.C. §1331 for violations and threatened violations of the Federal Controlled Substances Act and the Federal Food, Drug, and Cosmetic Act. Plaintiffs seek equitable relief in the form of a declaratory judgment and a preliminary injunction. 2. Under the Supremacy Clause of the United States Constitution, Defendants (state actors) are required to obey the Federal Controlled Substances Act, 21 U.S.C. §§801, et seq., and the Federal Food, Drug and Cosmetic Act., 21 U.S.C. §§301, et seq. 3. Defendants carry out lethal injections in Kentucky by injecting sodium thiopental, pancuronium bromide, and potassium chloride. 4. The Federal Controlled Substances Act lists schedules for controlled substances. 5. The Federal Controlled Substances Act says how and by whom controlled substances can be distributed. 6. Sodium thiopental is a controlled substance. 7. Defendants’ means for obtaining the lethal injection chemicals does not comply with the Federal Controlled Substances Act. 8. The Federal Food, Drug and Cosmetic Act regulates permits the distribution of certain drugs only when a licensed medical practitioner issues a prescription. 9. Sodium thiopental is a schedule III drug. 10. No licensed medical practitioner prescribes sodium thiopental to Defendants for use in lethal injections. 11. The Federal Food, Drug and Cosmetic Act requires approval of drugs for the purposes in which they are intended to be used.
2

Case 3:07-cv-00007-KKC Document 4-1 Filed 01/23/2007 Page 3 of 11
12. Using sodium thiopental, pancuronium bromide, and potassium chloride in lethal injections has not been approved by the FDA. 13. Because the use of the above chemicals for lethal injections has not been approved by the FDA, Defendants’ use of these chemicals in lethal injections violates the Federal Food, Drug and Cosmetic Act. 14. Plaintiffs are not alleging that Defendants could never execute them by lethal injection. Rather, they assert that any execution by lethal injection must comport with the Federal Controlled Substances Act and the Federal Food, Drug and Cosmetic Act. 15. Plaintiffs seek a declaratory judgment that Defendants means for obtaining and administering the lethal injection chemicals violate the Federal Controlled Substances Act and the Federal Food, Drug and Cosmetic Act. 16. Plaintiffs seek a preliminary injunction barring Defendants from carrying out their execution in a manner that violates the Federal Controlled Substances Act and the Federal Food, Drug and Cosmetic Act.
II. PLAINTIFFS 17. Thomas Clyde Bowling is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death-sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky. 18. Ralph Baze is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death-sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky.
3

Case 3:07-cv-00007-KKC Document 4-1 Filed 01/23/2007 Page 4 of 11
19. Jeffrey Leonard is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death-sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky.1
III. DEFENDANTS 20. Defendant Scott Haas is the Medical Director for the Kentucky Department of Corrections. 21. Defendant John D. Rees is the Commissioner of the Kentucky Department of Corrections. 22. Defendant Thomas Simpson is the Warden of the Kentucky State Penitentiary, where Plaintiffs’ executions will occur. 23. Defendants Unknown Executioners are employed by or under contract with the Kentucky Department of Corrections, to make preparations for, and carry out Plaintiffs’ executions. They include, but are not limited, physicians, emergency medical technicians, phlebotomists, physicians assistants, the execution team, the executioner, the I.V. team, and the team leader. Plaintiffs do not know their identities and Defendants will not reveal the identities of these people.
IV. JURISDICTION AND VENUE 24. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights violation), 1651 (all writs), 2201 (declaratory relief), 2202 (further relief), 21 U.S.C. §332 (enjoining violations of the Federal Food, Drug, and Cosmetic Act); and Fed.R.Civ.P. 65 (injunctions).
1 Jeffrey Leonard was convicted and sentenced to death under the name James Slaughter. Because his real name is 4

Case 3:07-cv-00007-KKC Document 4-1 Filed 01/23/2007 Page 5 of 11
25. Venue is proper under 28 U.S.C. §1391. All Defendants reside in the same state. The principle place of business for Defendant Haas, and Defendant Rees is Frankfort, Kentucky. 26. All Defendants are state actors acting under color of state law.
V. FACTS 27. Plaintiff Thomas Clyde Bowling has exhausted all automatic avenues of appeal, and despite a pending motion for DNA testing, may have an execution date set soon. 28. Plaintiff Ralph Baze has also exhausted all automatic avenues of appeal and may have an execution date set soon. 29. The United States District Court for the Eastern District of Kentucky granted Jeffrey Leonard relief from his death sentence. That decision was overturned by the United States Court of Appeals for the Sixth Circuit. Rehearing en banc was denied by a 7-7 vote on November 1, 2006. Leonard still has the automatic right to seek review by the Supreme Court of the United States. 30. Defendants are responsible for carrying out executions in Kentucky. 31. Defendants intend to carry out Plaintiffs’ execution by injecting them with sodium thiopental, pancuronium bromide, and potassium chloride. 32. Either the Warden or the Commissioner of the Department of Corrections will purchase the lethal injection chemicals. 33. Neither the Warden nor the Commissioner of the Department of Corrections is a licensed physician. 34. 21 U.S.C. §812, part of the Federal Controlled Substances Act, creates five schedules of controlled substances.
Jeffrey Leonard, Leonard will be used throughout this litigation. 5

Case 3:07-cv-00007-KKC Document 4-1 Filed 01/23/2007 Page 6 of 11
35. Drugs are considered schedule I controlled substances if: a) the drug or other substance has a high potential for abuse; b) the drug or other substance has no currently accepted medical use in treatment in the Unites States; and, c) there is a lack of accepted safety for use of the drug or other substance under medical supervision.
36. Drugs are considered schedule II controlled substances if: a) the drug or substance has a high potential for abuse; b) the drug or substance has a currently accepted medical use in the United States or a currently accepted medical use with severe restrictions; and, c) abuse of the drug or other substances may lead to severe psychological or physical dependence.
37. Drugs are considered schedule III controlled substances if: a) the drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II; b) the drug or substance has a currently accepted medical use in the United States; and, c) abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.
38. Drugs are considered schedule IV controlled substances if: a) the drug or substance has a low potential for abuse relative to the drugs or other substances in schedule III; b) the drug or other substance has a currently accepted medical use in treatment in the United States; and,
6

Case 3:07-cv-00007-KKC Document 4-1 Filed 01/23/2007 Page 7 of 11
c) abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III. 39. Drugs are considered schedule V controlled substances if: a) the drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV; b) the drug or other substance has a currently accepted medical use in treatment in the United States; and, c) abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV. 40. Sodium Thiopental is a schedule III controlled substance. 41. Under 21 U.S.C. §829, part of the Federal Controlled Substances Act, unless dispensed directly by a practitioner other than a pharmacist, schedule III controlled substances may be dispensed only upon a prescription by a practitioner licensed by law to administer such a drug. 42. 21 U.S.C. §829 means that either a doctor medically licensed to administer sodium thiopental must administer the sodium thiopental to Plaintiffs, obtain the sodium thiopental, or issue a prescription for the use of the sodium thiopental. 43. A doctor medically licensed to administer sodium thiopental will not be administering sodium thiopental to Plaintiffs. 44. A doctor medically licensed to administer sodium thiopental will not be obtaining sodium thiopental for use as a lethal injection chemical. 45. A doctor medically licensed to administer sodium thiopental will not be prescribing sodium thiopental to Plaintiffs.
7

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46. Under the Federal Food, Drug and Cosmetic Act., only a licensed medical practitioner can obtain and use drugs that require a prescription. 47. Pancuronium bromide is a regulated substance. 48. No licensed medical practitioner will be obtaining or using pancuronium bromide or potassium chloride for the purpose of executing Plaintiffs. 49. Under the Federal Food, Drug and Cosmetic Act, before a drug can be used, the FDA must authorize its use for the purpose for which a person intends to use it. 50. The FDA has not authorized the use of sodium thiopental, pancuronium bromide, and potassium chloride for lethal injections. 51. The United States Government could prosecute Defendants for violating the Controlled Substances Act and for violating the Federal Food, Drug and Cosmetic Act. See Gonzales v. Raich, 545 U.S. 1 (2005). 52. Plaintiffs are not seeking to force the Food and Drug Administration or any other United States governmental agency or official to enforce the Controlled Substances Act or the Federal Food, Drug and Cosmetic Act. 53. Because Plaintiffs are not seeking enforcement of the Controlled Substances Act or the Federal Food, Drug and Cosmetic Act, neither the Federal Administrative Procedures Act nor Heckler v. Chaney, 470 U.S. 821 (1985), apply to this action.
VI. EXHAUSTION OF ADMINISTRATIVE REMEDIES 54. Exhaustion of administrative remedies through a prison grievance policy is not required for this type of action because the injuries are prospective in the sense that the injuries will not occur until the execution takes place.
8

Case 3:07-cv-00007-KKC Document 4-1 Filed 01/23/2007 Page 9 of 11
55. Plaintiffs have previously filed grievances alleging that the procedures and chemicals used in lethal injections constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. 56. Plaintiffs’ grievances were rejected as non-grievable matters because, according to the Kentucky Department of Corrections, it is an “issue dealing with legislative mandate and court decisions.” 57. If Plaintiffs filed a grievance on the issue alleged in this complaint, the grievance would be treated the same as their previous grievance concerning lethal injection. 58. Because the Kentucky Department of Corrections has ruled that grievances concerning lethal injections are non-grievable, no administrative remedy is available to Plaintiffs. 59. Because the Kentucky Department of Corrections has ruled that grievances concerning lethal injections are non-grievable, Plaintiffs have exhausted their administrative remedies.
VII. CLAIMS FOR RELIEF A. VIOLATION OF CONTROLLED SUBSTANCES ACT 60. Defendants intend to extinguish Plaintiffs’ lives by injecting them with sodium thiopental even though the thiopental will neither be injected by a doctor licensed to administer thiopental nor as a result of a prescription by a doctor licensed to administer thiopental. Because a doctor medically licensed to administer sodium thiopental will neither being administering nor prescribing sodium thiopental to Plaintiffs, injecting sodium thiopental into Plaintiffs will violate the Controlled Substances Act.
9

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B. ADMINISTERING CHEMICALS WITHOUT A DOCTOR’S PRESCRIPTION 61. Defendants intend to extinguish Plaintiffs’ lives by injecting them with pancuronium bromide and potassium chloride despite the fact that the drugs will be obtained without a prescription from a licensed medical practitioner. This violates the Federal Controlled Substances Act.
C. ADMINISTERING DRUGS FOR A PURPOSE NOT APPROVED BY THE FDA 62. Defendants intend to extinguish Plaintiffs’ lives by injecting them with drugs that have not been approved by the FDA for the purpose of lethal injection. This violates the Federal Food, Drug and Cosmetic Act. 63. Plaintiffs are not seeking enforcement by the FDA but rather are seeking declaratory relief and an injunction barring Defendants from violating the Federal Food, Drug and Cosmetic Act. Thus, Heckler v. Chaney, 470 U.S. 821 (1985) is inapplicable.
VIII. PRAYER FOR RELIEF 64. Plaintiffs request a declaratory judgment that carrying out a lethal injection using sodium thiopental when the thiopental is neither administered by a doctor licensed to administer it nor prescribed by a doctor licensed to do so violates the Federal Controlled Substances Act. 65. Plaintiffs request a preliminary injunction barring Defendants from injecting them with sodium thiopental unless it is done by a doctor licensed to administer sodium thiopental or as a result of a prescription issued by a doctor licensed to prescribe sodium thiopental. 66. Plaintiffs request a declaratory judgment that carrying out a lethal injection with chemicals obtained without a prescription from a licensed medical practitioner violates the Federal Controlled Substances Act.
10

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67. Plaintiffs request a preliminary injunction barring Defendants from injecting them with chemicals obtained without a prescription from a licensed medical practitioner. 68. Plaintiffs request a declaratory judgment that carrying out a lethal injection with chemicals that have not been approved by the FDA for use in lethal injections violates the Federal Food, Drug and Cosmetic Act. 69. Plaintiffs request a preliminary injunction barring Defendants from injecting them with chemicals that have not been approved by the FDA for use in lethal injections.
RESPECTFULLY SUBMITTED,
/s/ David M. Barron ___________________________ DAVID M. BARRON JOHN ANTHONY PALOMBI Assistant Public Advocates Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
January 23, 2007
11

 
 Case 3:07-cv-00032-KKC Document 12 Filed 06/18/2007 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION AT FRANKFORT

ELECTRONICALLY FILED

____________________________________

THOMAS CLYDE BOWLING,

)

)

RALPH BAZE, and

)

)

JEFFREY LEONARD

)

)

Plaintiffs

)

)

v.

)

)

SCOTT HAAS, Medical Director

)

Kentucky Department of Corrections,)

)

JOHN D. REES, Commissioner,

)

Kentucky Department of Corrections,)

)

THOMAS SIMPSON, Warden,

)

Kentucky State Penitentiary, and )

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

CIV. ACTION # 3:07-cv-32 CAPITAL CASE

FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

Case 3:07-cv-00032-KKC Document 12 Filed 06/18/2007 Page 2 of 11
Pursuant to Fed.R.Civ.P. 15(a), Plaintiffs hereby amend their complaint to the following: I. NATURE OF ACTION
1. This action is brought pursuant to 28 U.S.C. §1331 for violations and threatened violations of the Federal Controlled Substances Act and the Federal Food, Drug, and Cosmetic Act. Plaintiffs seek equitable relief in the form of a declaratory judgment that Defendants are or intend to violate these statutes. 2. Under the Supremacy Clause of the United States Constitution, Defendants (state actors) are required to obey the Federal Controlled Substances Act, 21 U.S.C. §§801, et seq., and the Federal Food, Drug and Cosmetic Act., 21 U.S.C. §§301, et seq. 3. Defendants carry out lethal injections in Kentucky by injecting sodium thiopental, pancuronium bromide, and potassium chloride. 4. The Federal Controlled Substances Act lists schedules for controlled substances. 5. The Federal Controlled Substances Act says how and by whom controlled substances can be distributed. 6. Sodium thiopental is a controlled substance. 7. Defendants’ means for obtaining the lethal injection chemicals does not comply with the Federal Controlled Substances Act. 8. The Federal Food, Drug and Cosmetic Act regulates permits the distribution of certain drugs only when a licensed medical practitioner issues a prescription. 9. Sodium thiopental is a schedule III drug. 10. No licensed medical practitioner prescribes sodium thiopental to Defendants for use in lethal injections.
2

Case 3:07-cv-00032-KKC Document 12 Filed 06/18/2007 Page 3 of 11
11. The Federal Food, Drug and Cosmetic Act requires approval of drugs for the purposes in which they are intended to be used. 12. Using sodium thiopental, pancuronium bromide, and potassium chloride in lethal injections has not been approved by the FDA. 13. Because the use of the above chemicals for lethal injections has not been approved by the FDA, Defendants’ use of these chemicals in lethal injections violates the Federal Food, Drug and Cosmetic Act. 14. Plaintiffs are not alleging that Defendants could never execute them by lethal injection. Rather, they assert that any execution by lethal injection must comport with the Federal Controlled Substances Act and the Federal Food, Drug and Cosmetic Act. 15. Plaintiffs seek a declaratory judgment that Defendants means for obtaining and administering the lethal injection chemicals violate the Federal Controlled Substances Act and the Federal Food, Drug and Cosmetic Act.
II. PLAINTIFFS 16. Thomas Clyde Bowling is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death-sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky. 17. Ralph Baze is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death-sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky.
3

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18. Jeffrey Leonard is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death-sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky.1
III. DEFENDANTS 19. Defendant Scott Haas is the Medical Director for the Kentucky Department of Corrections. 20. Defendant John D. Rees is the Commissioner of the Kentucky Department of Corrections. 21. Defendant Thomas Simpson is the Warden of the Kentucky State Penitentiary, where Plaintiffs’ executions will occur. 22. Defendants Unknown Executioners are employed by or under contract with the Kentucky Department of Corrections, to make preparations for, and carry out Plaintiffs’ executions. They include, but are not limited to, physicians, emergency medical technicians, phlebotomists, physicians assistants, the execution team, the executioner, the I.V. team, and the team leader. Plaintiffs do not know their identities and Defendants will not reveal the identities of these people.
1 Jeffrey Leonard was convicted and sentenced to death under the name James Slaughter. Because his real name is 4

Case 3:07-cv-00032-KKC Document 12 Filed 06/18/2007 Page 5 of 11
IV. JURISDICTION AND VENUE 23. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1651 (all writs), 2201 (declaratory relief), 2202 (further relief), 21 U.S.C. §332 (enjoining violations of the Federal Food, Drug, and Cosmetic Act); and Fed.R.Civ.P. 65 (injunctions). 24. Venue is proper under 28 U.S.C. §1391. All Defendants reside in the same state. The principle place of business for Defendant Haas, and Defendant Rees is Frankfort, Kentucky. 25. All Defendants are state actors acting under color of state law.
V. FACTS 26. Plaintiff Thomas Clyde Bowling has exhausted all automatic avenues of appeal, but has been granted DNA testing. 27. Plaintiff Ralph Baze has also exhausted all automatic avenues of appeal and may have an execution date set soon. 28. Plaintiff Jeffrey Leonard has also exhausted all automatic avenues of appeal and may have an execution date set soon. 29. Defendants are responsible for carrying out executions in Kentucky. 30. Defendants intend to carry out Plaintiffs’ execution by injecting them with sodium thiopental, pancuronium bromide, and potassium chloride. 31. No doctor will be purchasing the lethal injection chemicals. 32. Either the Warden or the Commissioner of the Department of Corrections will purchase the lethal injection chemicals. 33. Neither the Warden nor the Commissioner of the Department of Corrections is a licensed physician.
Jeffrey Leonard, Leonard will be used throughout this litigation. 5

Case 3:07-cv-00032-KKC Document 12 Filed 06/18/2007 Page 6 of 11
34. 21 U.S.C. §812, part of the Federal Controlled Substances Act, creates five schedules of controlled substances. 35. Drugs are considered schedule I controlled substances if:
a) the drug or other substance has a high potential for abuse; b) the drug or other substance has no currently accepted medical use in treatment in the Unites States; and, c) there is a lack of accepted safety for use of the drug or other substance under medical supervision. 36. Drugs are considered schedule II controlled substances if: a) the drug or substance has a high potential for abuse; b) the drug or substance has a currently accepted medical use in the United States or a currently accepted medical use with severe restrictions; and, c) abuse of the drug or other substances may lead to severe psychological or physical dependence. 37. Drugs are considered schedule III controlled substances if: a) the drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II; b) the drug or substance has a currently accepted medical use in the United States; and, c) abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence. 38. Drugs are considered schedule IV controlled substances if: a) the drug or substance has a low potential for abuse relative to the drugs or other substances in schedule III;
6

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b) the drug or other substance has a currently accepted medical use in treatment in the United States; and, c) abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III. 39. Drugs are considered schedule V controlled substances if: a) the drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV; b) the drug or other substance has a currently accepted medical use in treatment in the United States; and, c) abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV. 40. Sodium Thiopental is a schedule III controlled substance. 41. Under 21 U.S.C. §829, part of the Federal Controlled Substances Act, unless dispensed directly by a practitioner other than a pharmacist, schedule III controlled substances may be dispensed only upon a prescription by a practitioner licensed by law to administer such a drug. 42. 21 U.S.C. §829 means that either a doctor medically licensed to administer sodium thiopental must administer the sodium thiopental to Plaintiffs, obtain the sodium thiopental, or issue a prescription for the use of the sodium thiopental. 43. A doctor medically licensed to administer sodium thiopental will not be administering sodium thiopental to Plaintiffs. 44. A doctor medically licensed to administer sodium thiopental will not be obtaining sodium thiopental for use as a lethal injection chemical.
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45. A doctor medically licensed to administer sodium thiopental will not be prescribing sodium thiopental to Plaintiffs. 46. Under the Federal Food, Drug and Cosmetic Act., only a licensed medical practitioner can obtain and use drugs that require a prescription. 47. Pancuronium bromide is a regulated substance. 48. No licensed medical practitioner will be obtaining or using pancuronium bromide or potassium chloride for the purpose of executing Plaintiffs. 49. Under the Federal Food, Drug and Cosmetic Act, before a drug can be used, the FDA must authorize its use for the purpose for which a person intends to use it. 50. The FDA has not authorized the use of sodium thiopental, pancuronium bromide, and potassium chloride for lethal injections. 51. The United States Government could prosecute Defendants for violating the Controlled Substances Act and for violating the Federal Food, Drug and Cosmetic Act. See Gonzales v. Raich, 545 U.S. 1 (2005). 52. Plaintiffs are not seeking to force the Food and Drug Administration or any other United States governmental agency or official to enforce the Controlled Substances Act or the Federal Food, Drug and Cosmetic Act. 53. Because Plaintiffs are not seeking enforcement of the Controlled Substances Act or the Federal Food, Drug and Cosmetic Act, neither the Federal Administrative Procedures Act nor Heckler v. Chaney, 470 U.S. 821 (1985), apply to this action. 54. Plaintiffs only seek a declaration that Defendants intended actions as applied to Plaintiffs will violate the Controlled Substances Act and the Federal Food, Drug and Cosmetic Act.
8

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VI. EXHAUSTION OF ADMINISTRATIVE REMEDIES 55. Although pleading exhaustion of administrative remedies is no longer a requirement, Plaintiffs have exhausted administrative remedies through the prison grievance system. The Commissioner’s Review, the final level of denial of the grievance, was rendered on May 1, 2007, and affirmed the denial of Plaintiffs’
VII. CLAIMS FOR RELIEF A. VIOLATION OF CONTROLLED SUBSTANCES ACT 56. Defendants intend to extinguish Plaintiffs’ lives by injecting them with sodium thiopental even though the thiopental will neither be injected by a doctor licensed to administer thiopental nor as a result of a prescription by a doctor licensed to administer thiopental. Because a doctor medically licensed to administer sodium thiopental will neither being administering nor prescribing sodium thiopental to Plaintiffs, injecting sodium thiopental into Plaintiffs will violate the Controlled Substances Act. B. ADMINISTERING CHEMICALS WITHOUT A DOCTOR’S PRESCRIPTION 57. Defendants intend to extinguish Plaintiffs’ lives by injecting them with pancuronium bromide and potassium chloride despite the fact that the drugs will be obtained without a prescription from a licensed medical practitioner. This violates the Federal Controlled Substances Act. C. ADMINISTERING DRUGS FOR A PURPOSE NOT APPROVED BY THE FDA 58. Defendants intend to extinguish Plaintiffs’ lives by injecting them with drugs that have not been approved by the FDA for the purpose of lethal injection. This violates the Federal Food, Drug and Cosmetic Act.
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59. Plaintiffs are not seeking enforcement by the FDA but rather are seeking declaratory relief. Thus, Heckler v. Chaney, 470 U.S. 821 (1985) is inapplicable.
VIII. PRAYER FOR RELIEF 60. Plaintiffs request a declaratory judgment that carrying out a lethal injection using sodium thiopental when the thiopental is neither administered by a doctor licensed to administer it nor prescribed by a doctor licensed to do so violates the Federal Controlled Substances Act. 61. Plaintiffs request a declaratory judgment that carrying out a lethal injection with chemicals obtained without a prescription from a licensed medical practitioner violates the Federal Controlled Substances Act. 62. Plaintiffs request a declaratory judgment that carrying out a lethal injection with chemicals that have not been approved by the FDA for use in lethal injections violates the Federal Food, Drug and Cosmetic Act.
RESPECTFULLY SUBMITTED,
/s/ David M. Barron ___________________________ DAVID M. BARRON JOHN ANTHONY PALOMBI Assistant Public Advocates Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
June 18, 2007
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Case 3:07-cv-00032-KKC Document 12 Filed 06/18/2007 Page 11 of 11 CERTIFICATE OF SERVICE
I hereby certify that the this document was filed electronically using the CM/ECF filing system on this 18th day of June, 2007, and that a copy was mailed first class, postage prepaid, to counsel for the Department of Corrections and the named Defendants:
Jeff Middendorf 125 Holmes Street Frankfort, KY 40601
/s/ David M. Barron ________________________
DAVID M. BARRON
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 Case 3:07-cv-00032-KKC Document 28-2 Filed 08/24/2007 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT FRANKFORT

ELECTRONICALLY FILED

____________________________________

)

THOMAS CLYDE BOWLING, et al.

)

)

Plaintiffs)

)

v.

)

)

SCOTT HAAS, et al

)

)

)

Defendants)

____________________________________)

CIVIL ACTION # 3:07-cv-32 CAPITAL CASE

MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION FOR A PRELIMINARY INJUNCTION
BARRING DEFENDANTS FROM EXECUTING PLAINTIFF RALPH BAZE ON SEPTEMBER 25, 2007

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the All Writs Act, 28 U.S.C.

§ 1651, and the Anti-Injunction Act, 28 U.S.C. §2283, Plaintiff Baze respectfully requests a

preliminary injunction barring Defendants from carrying out his execution until this Court has

the opportunity to decide the merits of this case.

INTRODUCTION In Moore v. Rees,1 this Court said “it will not hesitate to exercise its authority to impose

injunctive relief in aid of its jurisdiction to decide this case on the merits, and will not abide any

effort to circumvent that jurisdiction.” Despite this strong warning in Moore, after requesting an

extension of time to file a reply to the Plaintiffs’ response to this Court’s show cause order,

Defendants are now attempting to circumvent this Court’s jurisdiction by executing Baze before

this Court can decide the merits of this case. Indeed, general counsel for the Governor has

1 No. 3:06-cv-22 (E.D.Ky.) [Record No. 34].

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essentially stated that it is playing a cat and mouse game with the judicial system: “We have followed appropriate procedures . . . No court has prohibited us from proceeding.”2 Simply, the Governor’s office seemingly thinks it can ignore pending court cases and set an execution date at any point unless a court stops it. By implementing that approach here, Defendants are and will continue to attempt to circumvent this Court’s authority by carrying out executions as soon as it appears they will have to litigate the merits of a case. Because of Defendants’ actions, this Court’s stern warning in Moore should be put into action in this case through injunctive relief in aid of its jurisdiction to decide this case on the merits.
Although the All Writs Act should be invoked to preserve this Court’s jurisdiction to decide this case on the merits while Baze is still alive, it is not the only basis for granting a preliminary injunction. If this Court does not grant an injunction to preserve its jurisdiction, this Court must consider the right of access to the courts and the traditional factors for granting an injunction that apply when an injunction is not necessary to preserve the court’s jurisdiction. Because a preliminary injunction is warranted to protect Baze’s First Amendment right of access to the court, and because the traditional factors to consider in determining whether to grant a preliminary injunction favor Baze, an injunction should be granted on these grounds if not granted under the All Writs Act.
2 See, Associated Press, Public Defenders’ Claim Baze Death Warrant Premature, Lexington Herald-Leader, Aug. 23, 2007) (exhibit 2) (spokesperson for the Attorney General’s Office stating, “Baze has exhausted all the appeals that he is entitled to”; General Counsel to Governor Fletcher stating, “We have followed appropriate procedure. . . . No Court has prohibited us from proceeding”) (emphasis added).
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RELEVANT FACTS AND PROCEDURAL HISTORY This action was originally filed in January 2007, but was dismissed for failure to exhaust administrative remedies. Shortly after the Kentucky Department of Corrections denied the grievance (after taking more time to do so than its policy and procedures allow), on May 22, 2007, Plaintiffs refilled this action. This Court promptly issued an order to show cause as to why this action should not be dismissed for lack of subject matter jurisdiction and/or for failure to state a claim upon which relief can be granted. Plaintiffs promptly complied. Despite the show cause briefing, the 20 days for Defendants to file a responsive pleading to the Complaint continued to run. Rather than timely respond, Defendants filed a motion for a sixty day extension of time to answer the complaint. This Court denied that request granting Defendants seven days to file an answer. It also ordered Defendants to file a reply to Plaintiffs response to this Court’s show cause order. Defendants have filed an answer to the Complaint but further delayed the case by asking for an extension of time to file a reply on the show cause order. On August 10, 2007, the Attorney General of Kentucky asked the Governor to schedule Baze’s execution. Five days later, on August 15, 2007, Defendants filed their reply to the response to the show cause order. Fully aware of the litigation pending in this case, Governor Fletcher set Baze’s execution for September 25, 2007.3 As of the filing of this pleading, this Court has not ruled on this Court’s jurisdiction to decide the merits of this case or whether Plaintiffs have stated a claim upon which relief can be granted. In expectation that this Court will rule in favor of Plaintiffs on this and in light of the urgency created by Baze’s impending execution, Plaintiffs will soon file a motion for judgment on the pleadings.
3 Exhibit 1 (Statement of Governor Fletcher accompanying his notice of intent to sign death warrant on Ralph Baze, which notes the pending litigation in this case but says he intended to disregard it by signing a death warrant).
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GROUNDS FOR GRANTING A PRELIMINARY INJUNCTION “A death sentence cannot begin to be carried out by the State while substantial legal issues remain outstanding.”4 Yet, that is exactly what the Commonwealth of Kentucky is attempting to accomplish by scheduling Baze’s execution despite a full awareness of this pending case. This circumvention of this Court’s jurisdiction and authority cannot be tolerated, particularly in light of the substantial issues raised in this case - - whether Defendants are about to violate federal law by injecting Baze and similarly situated death-sentenced inmates with controlled substances obtained and administered in violation of a federal statute. Once substantial legal issues are raised, a petitioner is “entitled to a stay of execution to permit due consideration of the merits” if the claims cannot be resolved prior to the scheduled date of execution.5 Resolve means to carefully scrutinize colorable claims of violations of federal and state law.6 Because this Court has yet to even decide if it has jurisdiction over the action, it is unlikely that this Court will be able to scrutinize the claims in this case in the approximately 30 days that remain before Baze’s execution. Thus, this Court should invoke the All Writs Act to enjoin Baze’s execution so this Court maintains jurisdiction over this case as it relates to Baze and can issue merits rulings that can be applied to Baze. The traditional test for granting a preliminary injunction also favors Baze. Irreparable injury is self-evident. The minimal amount of harm the Commonwealth of Kentucky may suffer from not carrying out the execution on September 25, 2007, is self-inflicted and outweighed by the harm to Baze and the harm to the judicial system if this Court’s ability to decide this case on
4 Barefoot v. Estelle, 463 U.S. 880 (1983). 5 Id. at 889. 6 See Barefoot v. Estelle, 463 U.S. 880 (1983); Zant v. Stephens, 462 U.S. 862, 885 (1983).
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the merits is circumvented by executing one of the parties. Thus, even aside from granting an injunction under the All Writs Act, an injunction is warranted under the traditional test.
Finally, because this action has been pending in this Court for nearly three months without an impending execution date, allowing Baze to be executed during the pendency of this litigation will deprive him of his First Amendment and due process rights of access to the courts. As discussed in more detail below, each of these reasons are grounds why this Court should issue a preliminary injunction barring Defendants from executing Baze on September 25, 2007. I. A preliminary injunction under the All Writs Act is necessary to prevent this Court
from circumventing this Court’s jurisdiction by carrying out Baze’s execution before this Court can rule on the merits of the case. Because this Court is unlikely to be able to decide the merits of this case in the approximately 30 days that remain before his execution, a preliminary injunction under the All Writs Act is necessary to preserve the integrity of these proceedings and this Court’s jurisdiction to decide this case (including deciding whether it has jurisdiction to reach the merits), and so this Court can enforce its judgment. The need for this Court to issue an injunction to preserve its jurisdiction distinguishes an injunction under the All Writs Act from other injunctions in that this Court can grant the injunction without evaluating the four factors applicable to traditional injunctions.7 The All Writs Act authorizes “[t]he Supreme Court and all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdictions and
7 See, e.g., Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir. 2004) (“The requirements for a preliminary injunction do not apply to injunctions under the All Writs Act because a court’s traditional power to protect its jurisdiction, codified by the Act, is grounded in entirely separate concerns.”); see also, United States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (affirming grant of injunction under the All Writs Act without regard to the traditional four fact test to determine whether to grant an injunction); De Beers Consol Mines, Ltd. v. United States, 325 U.S. 212, 219 (1945) (stating, in reviewing a death lower court’s ruling concerning an injunction under the All Writs Act, that it is necessary to ascertain “what is the usage, and what are the principles of equity applicable in [this] case,” without mentioning the traditional four injunction requirements).
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agreeable to the usages and principles of law.”8 The Supreme Court of the United States has interpreted the All Writs Act to allow federal courts to “avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.”9 Indeed, unless specifically constrained by an act of Congress, the Act authorizes a court to issue writs any time “the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.”10
The Anti-Injunction Act, 28 U.S.C. § 2283, serves as a check on the broad authority recognized by the All Writs Act. It recognizes and embraces a federal court’s ability to issue injunctive relief “where necessary in aid of its jurisdiction. . . .”11 “The All Writs Act and the Anti-Injunction Act are closely related, and where an injunction is justified under one of the exceptions to the latter, a court is generally empowered to grant the injunction under the former.”12 Thus, in assessing the propriety of an injunction entered to stop a state action, the relevant inquiry is whether the injunction qualifies for the exceptions to the Anti-Injunction Act.
Among the circumstances in which federal courts may apply the All Writs Act and the Anti-Injunction Act to enjoin a state action is when an injunction is necessary: 1) to preserve the federal court’s jurisdiction; 2) “to protect the integrity or enforceability of existing judgments or orders,” and/or 3) to avoid disruption with the orderly resolution of litigation pending before the federal court.13 An injunction under these circumstances may be directed toward not only the
8 28 U.S.C. §1651(a). 9 United States v. New York Telephone Co., 434 U.S. 159, 172-73 (1977). 10 Adams v. United States, 317 U.S. 269, 273 (1942). 11 28 U.S.C. § 2283. 12 Burr & Forman v. Blair, 470 F.3d 1019, 1027-28 (11th Cir. 2006) (internal citations omitted). 13 See, e.g., Altantic C.L.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 295 (1970) (“Both exceptions to the general prohibition of [the Anti-Injunction Act] imply that some federal injunctive relief may be necessary to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide that case.”); Brother Records, Inc. v. Jardine, 432 F.3d 939, 944-45 (9th Cir. 2005) (ruling that the purpose of the “in aid of jurisdiction” exception is “to
6

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immediate parties to a proceeding (such as the Defendants in this case), but to “persons who, though not parties to the original action or engaged in any wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.”14 Thus, under the All Writs Act as constrained by the Anti-Injunction Act, the federal court may issue such orders as are necessary to enjoin state actors from taking action “which, left unchecked, would have . . . the practical effect of diminishing the [federal] court’s power to bring the [federal] litigation to a natural conclusion.”15 A preliminary injunction under the All Writs Act is necessary to preserve this Court’s jurisdiction, and to avoid disruption with the orderly resolution of litigation pending before this Court.
This suit was filed nearly three months before Baze’s execution date was set. The Governor of Kentucky was fully aware of this litigation when he set an execution date. Indeed, he mentioned it in a statement he released signing the death warrant, in which he referred to this litigation as “extraneous.”16 At the time the death warrant was signed, this case was proceeding in an orderly pace. This Court required Defendants to promptly file an answer when they had refused to do so within twenty days of service of the complaint. This Court also issued a show cause order, noting that while it appeared to this Court that it did not have subject matter jurisdiction and that the complaint did not state a claim upon which relief could be granted, counsel were permitted to convince this Court otherwise. Plaintiffs’ response to the show cause order seemingly persuaded this Court that it was at least arguable that it had jurisdiction and that relief could be granted on the merits for it issued an order for Defendants to reply. The order
prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide the case”). 14 New York Tel. Co., 434 U.S. at 174. 15 Klay, 376 F.3d at 1102. 16 See exhibit 1.
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noted that this Court would benefit from hearing Defendants on the issue. Rather than promptly file a reply so that this Court would have adequate time to rule on the issue before an execution date, Defendants sought and obtained an extension of time that ended up meaning that its reply was filed after an execution date on Baze was requested and only a week before Baze’s execution warrant was signed. As a result, a preliminary injunction under the All Writs Act is not only necessary to decide the merits of the underlying action, but also for this Court to decide this Court’s jurisdiction over the entire suit. Thus, this Court must issue a preliminary injunction to avoid disruption with the orderly resolution of this case, which has been pending for nearly three months before an execution was requested and set. II. Because the traditional equitable factors for granting a preliminary injunction favor
Baze, this Court must issue a preliminary injunction barring his execution. The United States Court of Appeals for the Sixth Circuit has articulated four factors that this Court must balance in determining whether to grant an injunction: 1) whether the movant would suffer irreparable injury without the injunction; 2) whether the public interest would be served by issuance of the injunction; 3) whether the issuance of the injunction would cause substantial harm to others; and, 4) whether the movant has a strong likelihood of success on the merits.17 In addition, when the movant seeks an injunction barring carrying out a death sentence, this Court must consider the extent to which the inmate has delayed unnecessarily in bringing the claim.18 These factors are not weighed equally. “Simply stated, more of one excuses less of the other.”19 In other words, “the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay.” Id. If the
17 Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2006); McPherson v. Michigan High School Athletic Ass’n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) (en banc). 18 Nelson v. Campbell, 541 U.S. 637, 649-50 (2004). 19 Michigan Coalition of Radioactive Materials Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
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movant demonstrates irreparable harm that decidedly outweighs any potential harm to the
defendant if a stay is granted, the movant only needs to establish “serious questions going to the merits.”20 Finally, granting injunctive relief is particularly appropriate, where necessary, to preserve a court’s ability to render a meaningful decision on the merits.21 Balancing these
factors establishes that Baze is entitled to a preliminary injunction until this Court can decide the
merits of this case.
A. Moore will suffer irreparable injury if a preliminary injunction is not granted.
The first factor clearly favors granting a temporary restraining order and preliminary
injunction. In evaluating the harm that will occur if a stay is not granted, this Court must
consider: 1) the substantiality of the injury alleged; 2) the likelihood of its occurrence; and, 3) the adequacy of the proof provided.22 These factors clearly establish that Moore will suffer
irreparable injury if an injunction is not granted.
Without this Court’s intervention, Baze will be executed on September 25, 2007, despite
this claim proceeding forward on behalf of other plaintiffs in this action. There is little doubt
that a prisoner facing execution will suffer irreparable injury if an injunction barring the
execution is not granted. A possible remedial final judgment, entered after the execution, is
meaningless to Baze. Numerous other courts have also recognized that death by execution easily satisfies the irreparable injury requirement.23 This is particularly so when Defendants have
20 Id. at 153-54. 21 United Food & Comm. Workers’ Union, Local 1099 v. Southwest Ohio Reg. Trans. Auth., 163 F.3d 341, 348 (6th Cir. 1998). 22 Michigan Coalition of Radioactive Materials Users, 945 F.2d at 154; Celebrezze v. Nuclear Regulatory Commission, 812 F.2d 288, 290 (6th Cir. 1987). 23 See Wainwright v. Booker, 473 U.S. 935 n. 1 (1985) (Powell, J., concurring) (recognizing that there is little doubt that a prisoner facing execution will suffer irreparable injury if a stay is not granted); In re Holladay, 331 F.3d 1169, 1177 (11th Cir. 2003) (holding, in regard to a death-sentenced inmate, that “the irreparability of the injury that petitioner will suffer in the absence of a stay to be self-evident”); Harris v. Johnson, 325 F.Supp.2d 797 (S.D.Tex. 2004), stay vacated on other grounds by, 376 F.3d 414 (5th Cir. 2004); Oken v. Sizer, 321 F.Supp.2d 658 (D.Md.
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created the urgency by disregarding the pendency of this case and asserting that it is meaningless by scheduling the execution.24 Because, without an injunction, Baze will be executed before the merits of his case are decided, he has satisfied the irreparable injury prong for obtaining an injunction.
B. The public interest favors granting an injunction. Granting Baze an injunction will serve the public interest. “Executions are unquestionably matters of great public importance,” for the public has an interest in the finality of a judgment and the carrying out of a legally imposed sentence.25 This action, however, was filed approximately three months before an execution date was set and without any clear expectation that one would be set soon. So, while the public’s interest in finality is weighty, there is no indication that the public expected Baze’s execution before the conclusion of this litigation, or that there is great interest to the public in carrying it out before the conclusion of this case. Rather, the public’s interest is better served by allowing this litigation to continue with Baze remaining a party. The public has an interest in making sure that lethal injection chemicals are not being obtained and administered in violation of federal statutes. This interest will be vindicated in this case even if Baze is executed, but the public interest surely is not served by allowing an execution to be carried out only to find out a short time later that a ruling of this Court establishes that the execution was carried out in violation of federal law.
2004), stay vacated on other grounds by, Sizer v. Oken, 542 U.S. 916 (2004); see also, Commonwealth, et al. v. Picklesimer, 879 S.W.2d 482, 484 (Ky. 1994) (holding that a Circuit Court finding that prohibiting a duly elected Property Valuation Administrator from taking office constituted “irreparable injury” was not “clearly erroneous”). 24 See, Associated Press, Public Defenders’ Claim Baze Death Warrant Premature, Lexington Herald-Leader, Aug. 23, 2007) (exhibit 2) (spokesperson for the Attorney General’s Office stating, “Baze has exhausted all the appeals that he is entitled to”; General Counsel to Governor Fletcher stating, “We have followed appropriate procedure. . . . No Court has prohibited us from proceeding”). 25 California First Amendment Coalition v. Calderon, 150 F.3d 976, 981 (9th Cir. 1998)
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Just as important, the public has an interest in ensuring that one branch of the government does not overstep the authority of another and that the executive branch is not allowed to moot out litigation by taking actions to eliminate a party before the litigation can be decided. Thus, the public’s interest is also served by not allowing Defendants and the Governor of Kentucky to interfere with this Court’s authority to decide this case, and essentially impose their judgment that this case is of no value, by carrying out Baze’s execution before this Court can reach the merits.
C. Granting Baze an injunction will cause no substantial harm to third parties. This prong has little if any bearing here. To the extent that this prong includes the public interest, it has been discussed immediately above. To the extent it involves harm to Defendants, it will be discussed in the section analyzing the lack of undue delay by Baze. D. “Serious questions going to the merits” exist. Because the irreparable injury prong and the public interest prong of the injunction standard weigh heavily in favor of Baze, he need not establish a strong likelihood of success on the merits. Rather, he needs to establish only that serious questions going to the merits exist. That is easily accomplished. Two serious types of questions remain outstanding in this case. First, whether this Court has subject matter jurisdiction over the action and whether the complaint states a claim upon which relief can be granted. Second, whether Defendants are in violation of the Federal Controlled Substances Act and the Federal Food, Drug and Cosmetic Act. Each of these questions needs to be resolved on the merits before Baze’s execution can be allowed to proceed. Admittedly, this Court initially believed that it did not have subject matter jurisdiction over this case and that the complaint did not state a claim upon which relief can be granted. But,
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after Plaintiffs filed a brief on the issue at this Court’s request, this Court apparently changed its mind, or, at least, recognized that whether jurisdiction exists and whether relief can be granted on the claim is not as clear cut as it originally seemed. To aid this Court in deciding this difficult issue, this Court asked Defendants to file a brief on the issue. That brief was filed only nine days ago. This serious question on the merits of whether this case can go forward needs to be decided before Baze’s execution can take place.
Once this Court rules that it has jurisdiction and relief can be granted, this case will have to be decided on the merits. There is no doubt that Defendants are not in compliance with the Controlled Substances Act (FCSA) or the Food, Drug and Cosmetic Act (FDCA). The FDA has not approved Kentucky’s lethal injection chemicals for use in lethal injections, and Defendants admit that neither a doctor nor other licensed medical practitioner is injecting or prescribing the lethal injection chemicals. Thus, they are not in compliance with the statute, making the only legal issue whether the federal statutes apply to a Department of Corrections carrying out an execution.
There is nothing within FCSA or FDCA exempting lethal injections from the statute. The statutes, however, list other situations and entities that are exempt. The failure to mention lethal injections when exempting other situations suggests that Congress did not intend to exempt individuals carrying out lethal injections. Further, if Congress thought otherwise, it had plenty of time to amend the statutes. In 1985, the Supreme Court of the United States decided Heckler v. Chaney, which involved whether the FDA could be compelled to enforce its regulations against individuals carrying out lethal injections.26 This case surely put Congress on notice that the FCSA and/or FDCA could apply to lethal injections. Yet, no action has been
26 470 U.S. 821 (1985).
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taken in the twenty-two years since then to exempt lethal injections from those statutes. This suggests that Congress intended these statutes to apply to lethal injections.
Further evidence that the FCSA and FDCA apply to lethal injections is found in the Utah Regulations. Utah has a Controlled Substances Act that parallels the federal statute. Utah also, by law, injects sodium thiopental, a controlled substance. Recognizing that this could pose problems with the Controlled Substances Act, Utah Regulation R156-37-301 was promulgated, authorizing the Utah Department of Corrections to obtain a license to obtain controlled substances “for the conduct of execution by the administration of lethal injection under its statutory authority and in accordance with its policies and procedures.”27 This suggests that Utah has recognized that lethal injections are covered by the Controlled Substances Act unless a regulation or statute is passed expressly exempting it. Kentucky has not done so, and even if it had, that would only exempt Kentucky from state law not the federal statutes at issue here.
Utah law and Congress’ failure to expressly exempt lethal injections from the FCSA and FDCA establish that these statutes apply to lethal injections. Defendants have admitted that they are not in compliance with these statutes, and even without their admission, the facts are clear that they are not in compliance. Thus, there is a serious question at issue here of whether they must comply and whether an execution can go forward when it is clear that it will be carried out in violation of at least one federal statute. This serious issue, for which Plaintiffs are likely to prevail, must be resolved before Baze is executed.
27 Exhibit 3 (Utah Controlled Substances Act Rules).
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E. Baze has not unduly delayed in filing this action and any harm to Defendants is of their own doing.
Any inquiry into harm to a party by the timing of the filing of a suit or by enjoining an execution must be analyzed not just based on how many days the litigation was filed before the scheduled execution but also in light of the posture of the case when the litigation was filed. As an equitable remedy, it also must consider Defendants’ culpability in creating a need for the preliminary injunction for Defendants should not be able to use self-inflicted harm to prevent a preliminary injunction. Here, the posture of the case when the litigation was filed and Defendants’ culpable conduct prevent Defendants from arguing they will be harmed by the grant of a preliminary injunction.
This action was dismissed in January 2007 for failure to exhaust administrative remedies. It would have been refiled shortly thereafter if not for Defendants taking approximately three months to deny the prison grievance and the appeals of it (an amount of time that violates Defendants’ internal policies and procedures). It was refiled on May 22, 2007, without any impending execution date or indication that one would be set in the near future. Twenty days expired without an answer or responsive pleading. Only after this Court ordered Defendants to respond that an answer was filed, Defendants’ reply was filed - - substantially later than originally ordered by this Court. That being because counsel for Defendants claimed their caseload was so high that it could not respond any earlier. Yet, just before a reply was filed by Defendants, an execution warrant on Baze was requested. That warrant was signed two days ago. This establishes that any delay in deciding this case was caused by Defendants and that an execution date has been set in an attempt to circumvent this Court’s jurisdiction.
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As Governor Fletcher stated in expressing his intent to sign a death warrant, the Governor was fully aware of this litigation and viewed it as “extraneous.”28 And today, the Governor’s general counsel stated that it was appropriate to sign the death warrant because “no court has prohibited us from proceeding.”29 In essence, this means that Defendants and the Governor do not care about pending litigation; instead, they focus solely on whether there is a court order prohibiting the issuance of an execution warrant. This affirmative action of setting an execution date despite this case and then flaunting this Court by saying it could do so because the court has not prohibited it from doing so proves that Defendants have “unclean hands” and prevents them from saying they will be harmed by the issuance of a preliminary injunction barring Baze’s execution on September 25, 2007. It will also only preserve the status quo that existed when this action was filed three months ago - - no execution dates pending. Thus, Baze did not unduly delay in the filing of this action, and any harm to Defendants from an injunction is self-inflicted harm from which it cannot benefit. Thus, this Court should rule that the unduly delay prong and Defendants’ culpable conduct favor granting a preliminary injunction.
F. Conclusion Each of the traditional factors for granting a preliminary injunction favors Baze. Should this Court think otherwise, a preliminary injunction is not prohibited. It is not a matter of counting the factors to see which way they fall, but instead is a balancing test. Balancing these factors, particularly in light of Defendants’ actions delaying this case, in setting an execution date to moot out the litigation with respect to Baze, and in flaunting the court by saying it has not prohibited it from setting an execution date so they have done so, lead to one conclusion - - the equities are in Baze’s favor. Thus, if this Court does not issue an injunction under the All Writs
28 Exhibit 1. 29 Exhibit 2.
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Act, it should issue a preliminary injunction barring Baze’s execution based on the traditional test for determining whether to grant a preliminary injunction. III. The denial of a preliminary injunction will violate Baze’s First Amendment and due
process right of access to the courts. If this Court does not grant Baze a temporary injunction, he will be denied his First Amendment and due process right of access to the courts. Baze filed this suit approximately three months ago without an execution date only to be sandbagged by the scheduling of his execution shortly before this Court could resolve the case on the merits. At the time of filing and up until today, no impediments existed to the speedy resolution of the merits of Baze’s claim. Unless this Court grants a preliminary injunction, Baze’s execution date could bar his due process and First Amendment rights of access to the courts in this case.
Due process requires
that prisoners be afforded access to the courts in order to challenge unlawful convictions and seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid.30 The First Amendment likewise confers to inmates a right of access to the courts. Mere formal access to the courts does not comport with the First Amendment. Rather, inmate access to the courts must be adequate, effective, and meaningful.31 That access to the courts cannot be accomplished when this Court has one month to give careful scrutiny to Baze’s claim. By scheduling Baze’s execution despite full knowledge of the procedural posture of this suit, Defendants are attempting to truncate and negate these proceedings. Not granting a preliminary
30 Procunier v. Martinez, 416 U.S. 396, 419 (1974). 31 Bounds v. Smith, 430 U.S. 817, 822 (1977).
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injunction will deny Baze his First Amendment and due process right of access to the courts. To preserve a death row inmates’ right of access to the courts in general, and Baze’s right of access to the courts in this particular case, this Court must grant a preliminary injunction that will remain in effect until it can reach the merits of Baze’s claim.
REQUEST FOR RELIEF Ralph Baze respectfully requests that this Court preserve its jurisdiction over this case that has been pending for three months without an execution date by granting a preliminary injunction under the All Writs Act enjoining Defendants from executing Baze on September 25, 2007. In the alternative, Baze requests that this Court grant a preliminary injunction under the traditional factors for determining to grant a preliminary injunction. As a further alternative, Baze requests that this Court grant a preliminary injunction to protect his First Amendment and due process rights of access to the courts.

August 24, 2007.

RESPECTFULLY SUBMITTED,
/s/ David M. Barron ___________________________________ DAVID M. BARRON JOHN ANTHONY PALOMBI Assistant Public Advocates Kentucky Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

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Case 3:07-cv-00032-KKC Document 28-2 Filed 08/24/2007 Page 18 of 18 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was electronically filed with the Court by using the CM/ECF system, on this 24th day of August, 2007.
/s/ David M. Barron ___________________________________ COUNSEL FOR Ralph Baze
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 Case: 3:07-cv-00032-KKC Doc #: 42 Filed: 03/20/08 Page: 1 of 8 - Page ID#: 282

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at FRANKFORT
** CAPITAL CASE **

CIVIL ACTION NO. 3:07-CV-32-KKC

THOMAS CLYDE BOWLING, ET AL.

PLAINTIFFS

VS:

ORDER

SCOTT HAAS, ET AL.

DEFENDANTS

*** *** ***

This matter is before the Court for consideration of several motions filed by the

parties:

1. Plaintiff Ralph Baze’s Emergency Motion for a Preliminary Injunction Barring Defendants from Executing Plaintiff Ralph Baze on September 25, 2007. [Record No. 28]

2. Plaintiffs’ Motion for Partial Judgment on the Pleadings Pursuant to Rule 12(c). [Record No. 29]

3. Plaintiffs’ Emergency Motion to Expedite Ruling on Subject Matter Jurisdiction and Whether Plaintiffs have Stated a Claim Upon Which Relief can be Granted (Order on Show Cause Briefing). [Record No. 30]

4. Plaintiff Jeoffrey Leonard’s Motion to Withdraw as Plaintiff. [Record No. 41]

The Court will address each of these motions below.

1. Leonard’s Motion to Withdraw as Plaintiff.

Plaintiff Jeoffrey Leonard has filed a motion to “withdraw” as a plaintiff in this action.

[Record No. 41] Leonard advised the Court that on December 10, 2007, the Governor of

Kentucky commuted his death sentence to a sentence of life imprisonment without the

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possibility of parole, thus rendering him without standing to challenge Kentucky’s possession or use of chemicals subject to the federal Controlled Substances Act, 21 U.S.C. § 801 et seq. (“CSA”) or the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (“FDCA”) in carrying out a sentence of death by lethal injection. The Defendants have not filed a response to this motion.
Although Leonard does not expressly identify his request as one for dismissal pursuant to Federal Rule of Civil Procedure 41(a), the Court construes his motion as having been made pursuant to that rule. The Rule provides that:
Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. FED. R. CIV. P. 41(a)(2). In determining whether to grant the motion, the Court must consider any possible prejudice to the defendant, Mercer Tool Corp. v. Friedr. Dick GmbH, 175 F.R.D. 173, 175 (E.D.N.Y. 1997), and where dismissal is warranted, enter dismissal upon such terms as are appropriate to ameliorate that prejudice to the extent possible. Where the plaintiff does not specify whether he seeks dismissal with or without prejudice, the trial court is within its discretion to elect either option in light of the reason given for seeking dismissal and the procedural posture of the case. Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2002); Babcock v. McDaniel, 148 F.3d 797, 799 (7th Cir. 1998). In light of the foregoing, the Court concludes that Leonard’s motion should be granted and his claims dismissed with prejudice. Leonard indicates that the Governor has
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commuted his death sentence to one of life without possibility of parole. Accordingly, Leonard lacks standing now and in the future to contest the manner of carrying out a sentence which he no longer must face. Cf. Fletcher v. Graham, Ky., 192 S.W.3d 350, 362-63 (2006).
2. Plaintiff Ralph Baze’s Emergency Motion for a Preliminary Injunction Barring Defendants from Executing Plaintiff Ralph Baze on September 25, 2007 and Plaintiffs' Emergency Motion to Expedite Ruling on Subject Matter Jurisdiction and Whether Plaintiffs have Stated a Claim Upon Which Relief can be Granted (Order on Show Cause Briefing).
On June 7, 2007, the Court entered an Order directing Plaintiffs to show cause why their Complaint should not be dismissed for lack of subject matter jurisdiction in the absence of an express private right of action to enforce the provisions of either the CSA or the FDCA, and an established body of case law denying the existence of an implied cause of action. [Record No. 9] Plaintiffs responded by filing an amended complaint which struck any request for injunctive relief, and a Response which argued that because they sought solely declaratory relief, the Plaintiffs were not seeking to “enforce” the provisions of the federal laws. [Record Nos. 12, 16] At the request of the Court, on August 15, 2007 Defendants filed a Reply on this issue. [Record No. 27]
Two days before that date on August 13, 2007, the Attorney General of Kentucky filed a request with the Kentucky Governor’s Office that an execution date be set for Baze. On August 22, 2007, the Governor signed the death warrant, setting September 25, 2007 as the date of execution.
Two days later, Baze filed his emergency motion seeking injunctive relief to prevent Kentucky from carrying out his execution. [Record No. 28] Baze asserted that the
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injunction should be issued in order to prevent the issues presented in his Complaint from being mooted by his impending execution. Baze subsequently filed a motion seeking an expedited ruling on the jurisdictional question raised sua sponte by the Court [Record No. 30], noting that a decision on that issue was a necessary prerequisite to addressing his separately-filed emergency motion for partial judgment on the pleadings. [Record No. 29] As with his request for injunctive relief, the request for expedited consideration was based upon his approaching execution date.
Baze also filed similar motions seeking injunctive relief in another case pending before this Court, Brian Keith Moore v. John D. Rees et al., 06-CV-22, Eastern District of Kentucky. In that case, several Kentucky inmates under a sentence of death challenge the constitutionality of Kentucky’s method of carrying out an execution by lethal injection. Baze had filed a motion seeking permission to intervene, which remained pending at the time the Governor signed the warrant for his execution. When the warrant was signed, Baze filed a number of motions seeking injunctive relief on various grounds. [Record Nos. 161169 therein]
On August 31, 2007, the Court entered an Order advising the parties that it was aware of the approaching execution date, would rule on Baze’s request to intervene promptly, and would order injunctive relief if it was necessary to preserve the Court’s jurisdiction over the controversy presented. [Record No. 174] The need for such injunctive relief was obviated shortly thereafter when the Kentucky Supreme Court issued a stay of execution on September 12, 2007. The United States Supreme Court subsequently granted Baze’s petition for a writ of certiorari in Ralph Baze and Thomas C. Bowling v. Jonathan D. Rees, et al., Civil Action No. 04-CI-1094, Franklin Circuit Court, a case
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initiated by Baze in the Kentucky state courts raising a functionally-identical challenge to Kentucky’s implementation of its lethal injection protocol as violative of the Eighth Amendment’s “Cruel and Unusual Punishments” Clause. Baze’s originally scheduled execution date on September 25, 2007 has come and gone with the Kentucky Supreme Court’s stay of execution remaining in place since that time.
Because the stay of execution entered by the Kentucky Supreme Court on September 12, 2007, is still in effect, and appears likely to remain so pending the United States Supreme Court’s decision, Baze’s motion seeking injunctive relief and expedited decision on the jurisdictional question raised in this case in light of his impending execution will be denied as moot, and in light of the considerations discussed immediately below.
3. Plaintiffs’ Motion for Partial Judgment on the Pleadings Pursuant to Rule 12(c).
On August 27, 2007, Plaintiffs filed an emergency motion seeking a judgment on the pleadings, arguing that the Defendants’ statements in their Answer established that Kentucky’s actions in carrying out its lethal injection protocol do not comply with the CSA or FDCA. [Record No. 29] The Plaintiffs subsequently acknowledged, however, that “the jurisdictional question is a threshold question in this case,” and that “an expedited ruling on [the jurisdictional] issue is necessary for this Court to be able to entertain the emergency motion for judgment on the pleadings.” [Record No. 30 at pg. 2-3]
The Court concurs that the ability of the Plaintiffs to seek relief under the CSA or FDCA, whether injunctive or strictly declaratory, is a threshold question which must be addressed before any resolution of the merits, whether by judgment on the pleadings, summary judgment, or trial. At a minimum, Plaintiffs’ motion for judgment on the pleadings
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would have to be denied without prejudice or deferred pending resolution of that issue. However, the Court must address an even-more preliminary issue before addressing that question.
On September 25, 2007, the Court entered a Memorandum Opinion and Order in the Moore case denying Baze leave to intervene in that action on the ground that his claims were barred by application of Kentucky’s rules on claim preclusion. [Record No. 188 therein] On September 26, 2007, the Court denied Bowling leave to intervene in that action on the same ground, that his claims were barred by claim preclusion under Kentucky law. [Record No. 190 therein] With respect to both proposed intervenors, the Court concluded that their involvement as co-plaintiffs in prior state court litigation challenging Kentucky’s lethal injection protocol as violative of their constitutional rights barred the claims they sought to assert in Moore.
As the Court noted in those Orders, under Kentucky law, claim preclusion applies to bar “not only to the issues disposed of in the first action, but to every point which properly belonged to the subject of the litigation in the first action and which in the exercise of reasonable diligence might have been brought forward at the time.” May v. Webb, Ky.App., 2004 WL 1699910 (2004); Whittaker v. Cecil, Ky., 69 S.W.3d 69, 72 (2002) (final judgment precludes subsequent litigation of claims that were or could have been presented in the prior action). In the prior action, Baze and Bowling sought a determination that their execution by Kentucky officials would violate the Eighth Amendment to the Constitution; in the present action, Baze and Bowling seek a determination that this same execution by Kentucky officials would violate two federal statutes. In light of the foregoing, the Court
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determines that the best course is to deny the Plaintiffs’ motion for partial judgment on the pleadings without prejudice and direct the parties to submit briefing on the possible application of claim preclusion to the matters presented in their Complaint.
CONCLUSION Accordingly, the Court being sufficiently advised, IT IS HEREBY ORDERED AS FOLLOWS: 1. Plaintiff Jeoffrey Leonard’s Motion to Withdraw as Plaintiff [Record No. 41] is GRANTED. The Intervenor Complaint filed by Jeoffrey Leonard is DISMISSED WITH PREJUDICE. An appropriate Judgment shall be entered contemporaneously herewith. 2. Plaintiff Ralph Baze’s Emergency Motion for a Preliminary Injunction Barring Defendants from Executing Plaintiff Ralph Baze on September 25, 2007 [Record No. 28] is DENIED AS MOOT. 3. Plaintiffs’ Emergency Motion to Expedite Ruling on Subject Matter Jurisdiction and Whether Plaintiffs have Stated a Claim Upon Which Relief can be Granted (Order on Show Cause Briefing) [Record No. 30] is DENIED AS MOOT. 4. Plaintiffs’ Motion for Partial Judgment on the Pleadings Pursuant to Rule 12(c) [Record No. 29] is DENIED WITHOUT PREJUDICE. 5. The Plaintiffs shall file a single memorandum of law, not to exceed fifteen (15) pages in length, addressing any possible application of claim preclusion to the claims asserted herein, within forty-five (45) days after entry of this Order. The Defendants shall file a single memorandum of law, not to exceed fifteen (15) pages in length, in response within thirty (30) days after the Plaintiffs file their memorandum. The Plaintiffs may file a
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single memorandum of law, not to exceed ten (10) pages in length, in reply within fifteen (15) days after the Defendants file their response.
Dated this the 20th day of March, 2008.
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 Case: 3:07-cv-00032-KKC Doc #: 52 Filed: 09/23/10 Page: 1 of 13 - Page ID#: 411

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at FRANKFORT

THOMAS CLYDE BOWLING, and RALPH BAZE,
Plaintiffs, v. SCOTT HAAS, et al.,
Defendants.

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|

|

Civil Action No. 3: 07-032-KKC

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|

|

|

MEMORANDUM OPINION

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AND ORDER

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**** **** **** Plaintiffs Thomas Clyde Bowling and Ralph Baze, two Kentucky death row inmates, have filed a complaint under the Controlled Substances Act, 21 U.S.C. § 801-971 (“CSA”), and the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301-399a (“FDCA”), against defendants Scott Haas, Medical Director for the Kentucky Department of Corrections (“KDOC”); John D. Rees, Commissioner of the KDOC; Thomas Simpson, Warden of the Kentucky State Penitentiary; and Unknown Executioners. [R. 5] Having reviewed the submissions of the parties, the Court will dismiss the complaint with prejudice, as the statutes do not expressly or impliedly provide plaintiffs with a private right of action to enforce their requirements, and because the plaintiffs would be barred from pursuing any such claims under principles of claim preclusion. I. Background In their complaint, plaintiffs contend that the defendants’ intended use of sodium thiopental, pancurium bromide; and/or potassium chloride to carry out a sentence of death (1) is not a use approved by the Food and Drug Administration (“FDA”) and (2) would not comply with the requirement that these chemicals be obtained and prescribed or administered by a licensed physician. Plaintiffs sought a declaration to this effect, as well as an injunction barring the defendants from carrying out their

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execution by lethal injection in any manner which violates the CSA or FDCA. [R. 5 at ¶¶ 10, 12, 15, 16]
Plaintiffs assert that in carrying out a sentence of death by lethal injection, the KDOC uses a combination of three drugs: sodium thiopental; pancurium bromide; and potassium chloride. The first of these, sodium thiopental, is a “controlled substance” under Schedule III of the CSA. 21 U.S.C. § 812; [R. 5 at ¶40]. Plaintiffs allege that the defendants violate the CSA by purchasing the sodium thiopental in a manner not permitted by the statute, and by either “dispensing” or “administering” the drug by someone who is not a licensed practitioner of medicine. 21 U.S.C. § 829. Plaintiffs further allege that pancurium bromide is a substance regulated by the FDCA, but that the FDA has not approved any of the three chemicals for use in carrying out a sentence of death. [R. 5 at ¶47, 50]
Shortly after the filing of the Complaint, the Court entered a show cause order directing the plaintiffs to establish that the Court possessed subject matter jurisdiction over their claims and that their complaint stated a viable claim for relief. In its order, the Court noted a substantial body of case law which held that neither the CSA nor the FDCA expressly provide for a cause of action for a private litigant, and that courts should not imply one in light of congressional intent. [R. 9]
Prior to service of summons, plaintiffs filed an amended complaint. [R. 12] The plaintiffs have indicated that the amended complaint is identical in all respects to their original complaint except for the deletion of their request for injunctive relief. [R. 16 at 2]
After the plaintiffs filed their response to the Court’s show cause order [R. 16] and following service of summons, the Court directed the defendants to file a responsive pleading and a memorandum of law. [R. 21] In their answer to the complaint, defendants acknowledge and assert that no physician, including defendant Dr. Haas, participates in an execution by lethal injection, as Kentucky law prohibits
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such participation except to certify the cause of death. Ky. Rev. Stat. 431.220(3).1 Defendants further assert that the warden purchases the chemicals used in lethal injections pursuant to a certificate of registration issued by the Drug Enforcement Administration, and that federal regulations implementing the FDCA permit an “institutional practitioner” to handle controlled substances. 21 C.F.R. § 1300.01(11). [R. 25]
Following additional submissions by the parties, the Court entered an order noting that in Moore v. Rees, No. 06-CV-0002-KKC (E.D. Ky. 2006), it had denied plaintiffs Bowling and Baze permission to intervene in that proceeding because their participation in prior state court litigation asserting similar claims challenging the constitutionality of Kentucky’s lethal injection protocol precluded the assertion of related claims in Moore under principles of claim preclusion under Kentucky law. The Court therefore directed the parties to submit written legal memoranda as to whether the plaintiffs claims under the CSA and FDCA were likewise barred by claim preclusion. [R. 42]
In response, the plaintiffs argue that (1) federal courts have exclusive jurisdiction over claims under the CSA and FDCA, thus they could not have asserted their claims in the prior state court proceedings, and (2) Kentucky preclusion law does bar the subsequent assertion of a claim unless it was affirmatively required to be asserted in the prior litigation. [R. 44, 46] For their part, the defendants assert that plaintiffs misapprehend Kentucky’s preclusion law, and their claims could and should have been pursued in the prior state court litigation. [R. 45]
1 In light of the Court’s resolution of this case, it need not resolve the independent question whether the present action might implicate the rule that a civil action, which as a practical matter challenges the validity of the death sentence itself, constitutes a second or successive habeas petition notwithstanding its label. Nelson v. Campbell, 541 U.S. 637, 643-44 (2004). The rule may apply because the plaintiffs contend that death sentences carried out by lethal injection must comply with a federal law which effectively requires the participation of a licensed physician. However, Kentucky law expressly precludes such participation, both in its lethal injection statute, Ky. Rev. Stat. 431.220(3), and in its regulation of physicians, Ky. Rev. Stat. 311.595, which incorporates Article 2.06 of the American Medical Association’s Code of Ethics by reference. Thus, if plaintiffs’ claim were successful on the merits, there is apparently no way for the defendants to carry out such a sentence in compliance with existing state law.
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II. Discussion A. The Controlled Substances Act and the Food, Drug, and Cosmetic Act do not permit a private right of action for declaratory relief. The Controlled Substances Act was enacted in 1970 as part of the Comprehensive Drug Abuse
Prevention and Control Act, and regulates the manufacture, importation, distribution, possession and use of drugs covered by the Act. Under the CSA, the FDA and DEA share responsibility for adding or removing drugs from each of the five schedules of regulated drugs by federal regulation. 21 U.S.C. § 812. Because sodium thiopental is a Schedule III drug, 21 C.F.R. § 1308.13(c)(1)(iii), the CSA requires that a qualified medical practitioner write a prescription for the drug before it may be dispensed. 21 U.S.C. §§ 829(b), 841(a)(1).
The CSA provides for civil penalties of up to $25,000 for violating the act, vesting federal courts with exclusive jurisdiction over such proceedings “in accordance with section 1355 of Title 28.”2 21 U.S.C. § 842(c)(1)(A). In addition, the CSA authorizes the Attorney General to initiate a civil action “for appropriate declaratory or injunctive relief” for violations of the CSA, and indicates that any such action “may be brought in the district court of the United States... in which the defendant is located or resides or is doing business.” 21 U.S.C. § 842(f)(1), (2).
The Food, Drug, and Cosmetic Act was enacted in 1938, and vests the FDA with regulatory authority to ensure the safety of products within the scope of the Act. To ensure the safety of drug products, the FDCA requires an extensive pre-approval process. 21 U.S.C. § 355(a). The marketing or sale of drugs in interstate commerce without such prior approval is prohibited. 21 U.S.C. § 331(d). The FDCA also requires certain potentially-dangerous drugs to be dispensed only upon a prescription written
2 28 U.S.C. § 1355(a) provides that “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress, ...”
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by a licensed practitioner. 21 U.S.C. § 353(b)(1). Dispensing a drug in any manner noncompliant with Section 353(b)(1) “shall be deemed an act which results in the drug being misbranded while held for sale.” 21 U.S.C. § 353(b)(1)(iii). “Misbranding” a regulated drug, including by dispensing it without a prescription, is punishable under 21 U.S.C. § 331(a). United States v. Nazir, 211 F. Supp. 2d 1372, 1374 (S.D. Fla. 2002).
The FDCA provides that “all such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States.” 21 U.S.C. § 337(a). With certain exceptions not relevant here, actions to restrain violations of Section 331 may be prosecuted in the federal district courts. 21 U.S.C. § 332(a).
Interpreting these provisions, courts have uniformly held that the right to enforce the provisions of the CSA and FDCA is possessed exclusively by the Attorney General and the United States, respectively, and that no right of action, either expressed or implied, exists in favor of a private litigant. McCallister v. Purdue Pharma L.P., 164 F. Supp. 2d 783, 793 (S.D. W. Va. 2001) (“The Court agrees with Plaintiffs’ representation that a careful review of the [CSA] establishes no Congressional intent to create a private, civil right of action nor to permit removal...”); Jackson v. Purdue Pharma Co., No. 02CV-14280, 2003 WL 21356783, at *6 (M.D. Fla. April 11, 2003) (no private right of action under CSA) (citing Little v. Purdue Pharma. L.P., 227 F. Supp. 2d 838 (S.D. Ohio 2002)); Buckman Co. v. Plaintiff’s Legal Comm., 531 U.S. 341, 349 n.4 (2001) (“The FDCA leaves no doubt that it is the Federal Government rather than private litigants who are authorized to file suit for noncompliance ...”); Bailey v. Johnson, 48 F.3d 965 (6th Cir. 1995) (no private right of action under FDCA, citing Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 811-12 (1986)); In re Orthopedic Bone Screw Products Liability Litigation, 193 F.3d 781, 788 (3d Cir.1999) (same); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1139 (4th Cir.1993) (same).
5

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In an action involving identical claims challenging Missouri’s lethal injection protocol as violative of the CSA and FDCA, the Western District of Missouri found that neither statute permitted a private right of action. Ringo v. Lombardi, No. 09-4095-NKL (W.D. Mo. 2009) (Order of August 19, 2010, slip opinion at 7) (“An action based purely on the CSA and FDCA that would require Defendants to come into compliance with the CSA and FDCA, amounts to a private enforcement action not allowed by the statutes.”).
Notwithstanding the evident breadth and clarity of this body of decisional law, plaintiffs contend that their amended complaint – which omitted its claim for injunctive relief so as to pursue only a declaration that defendants’ conduct would violate the CSA and FDCA – does not constitute an attempt to “enforce” either statute because it seeks neither monetary penalties nor injunctive relief, and hence falls outside the parameters of this established precedent. Plaintiffs assert that “[b]ecause Congress did not include declaratory judgment actions in this list of actions that must be taken in the name of the United States, private individuals are authorized to maintain solely declaratory judgment actions under this statute.” [R. 16 at 10-11]
As a threshold matter, plaintiffs’ argument is premised upon the absence of an explicit reference to declaratory judgment actions under the FDCA’s enforcement provision, 21 U.S.C. § 337(a). In contrast, the CSA’s enforcement provision does expressly authorize the Attorney General to initiate a civil action “for appropriate declaratory or injunctive relief” for violations of the CSA. 21 U.S.C. § 842(f)(1). Accepting Plaintiffs’ argument on its own terms, therefore, does not permit the conclusion that a private individual may pursue even declaratory relief under the CSA, where the statute expressly vests that authority with the Attorney General.
Nor can the Court infer from Congress’ failure to expressly refer to declaratory judgment actions in the FDCA’s enforcement provisions any omen that it intended to leave such a remedial path open to
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private citizens. Thus, the Court concludes that an action seeking a declaration that certain conduct will
violate the terms of a federal statute constitutes an action to “enforce” that law. The Southern District
of Ohio has recently rejected the same distinction proposed by plaintiffs here as specious. See Durr v.
Strickland, No. 10-CV-288, 2010 WL 1610592, at *3 (S.D. Ohio April 15, 2010) (“In other words,
Plaintiff is telling this Court that it can proceed to issue declaratory relief because the Court would not
be enforcing federal law or restraining violation of that law by issuing declaratory relief that would stop conduct violating that law. Plaintiff’s semantic slight of hand proves unpersuasive.”)3, aff’d, 602 F.3d
788 (6th Cir. 2010) (“We therefore AFFIRM the order of Judge Frost, for the reasons stated in his April
15, 2010 opinion and order.”) (emphasis added), cert. denied, 130 S.Ct. 2147 (April 19, 2010).
Recent decisions by other courts have echoed this result. The Eastern District of Arkansas
recently held that the Supreme Court’s decision in Franklin v. Massachusetts, 505 U.S. 788 (1992) could
not reasonably be extended so far as to authorize a complaint solely for declaratory relief challenging
the state’s lethal injection protocol as violative of the CSA and FDCA, where Congress had declined to
create any private right of action at all. As the court aptly explained,
The availability of relief under the Declaratory Judgment Act “presupposes the existence of a judicially remediable right.” Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288, 1296, 4 L.Ed.2d 1478 (1960). In Schilling, the Supreme Court held that “federal courts may not declare a plaintiff’s rights under a federal statute that Congress intended to be enforced exclusively through a judicially unreviewable administrative hearing. C & E Servs., Inc. v. D.C. Water and Sewer Auth., 310 F.3d 197, 201 (D.C .Cir. 2002).
Congress created two elaborate statutory schemes, the FDCA and the CSA, that are at issue here. In both statutory schemes, Congress defined the scope of jurisdiction granted to the district courts, and in neither instance did Congress include within the jurisdiction of district courts the authority to entertain causes of action brought by private individuals to enforce the statutes. Congress, instead, provided for enforcement of both the FDCA
3 In Durr, the court also found that the plaintiff, a death-sentenced inmate, lacked standing to pursue claims directly under the CSA and FDCA where, if his claims were found to have merit, only the defendant prison officials would be at risk of civil penalties or criminal prosecution for violations of federal law, and thus he failed to allege injury to himself sufficient to confer standing. Id. at *3-4.
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and the CSA by the executive branch. Jones v. Hobbs, 2010 WL 2985502, at *4-5 (E.D. Ark. July 26, 2010). In light of that comprehensive statutory framework, the court concluded that:
To entertain, under the auspices of the Declaratory Judgment Act, a cause of action brought by private parties seeking a declaration that the FDCA or the CSA has been violated would, in effect, evade the intent of Congress not to create private rights of action under those statutes and would circumvent the discretion entrusted to the executive branch in deciding how and when to enforce those statutes Id. at *6. The Court concurs with the reasoning in Jones, and concludes that any action which seeks a determination that certain conduct would be contrary to the terms of the CSA or the FDCA constitutes an effort to enforce those statutes, regardless of whether that determination is a predicate to only a declaration to that effect, or to further relief by way of civil penalty, disgorgement, destruction of offending articles, further injunctive relief, or criminal prosecution. Finally, plaintiffs contend that the Supremacy Clause requires this Court to find that it possesses jurisdiction over their claims. The nature of their argument is not entirely clear, but plaintiffs assert: If federal statutes are the supreme law of the land, then it is the federal courts that have the responsibility of interpreting that federal law. ... The judicial branch not only has the authority, it has the duty to declare whether state actors are violating the law. [R. 16 at 13-14] Plaintiffs’ argument miscomprehends the nature of the Supremacy Clause’s constitutional command. The Supremacy Clause makes federal law the law of each of the several States, which must be obeyed by state and federal courts alike, even at the expense of subservient state laws. Swift & Co. v. Wickham, 382 U.S. 111, 120 (1965). To the extent plaintiffs imply that federal courts have exclusive jurisdiction to decide questions of federal law, the suggestion runs directly contrary to the rule that state and federal courts possess concurrent jurisdiction to decide such matters: “[s]tate courts have inherent authority, and are presumptively competent, to adjudicate claims arising under the law of the United
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States.” Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Accordingly, “[t]he Supremacy Clause does not address whether a state court must entertain a federal cause of action; it provides only a rule of decision that the state court must follow if it adjudicates the claim.” Haywood v. Drown, 129 S.Ct. 2108, 2123 (2009). The Supremacy Clause thus simply creates a hierarchy between state and federal laws, not between state and federal courts which must interpret them.
The Court’s conclusion that there exists no private right of action does not undermine the authority or the duty of a court to decide whether a state actor has complied with federal law; rather, it establishes only that federal law enforcement officials rather than private citizens must be the ones to ask the question in the first instance.
B. Plaintiffs’ claims are barred by principles of claim preclusion. In prior federal proceedings, this Court denied Bowling and Baze’s motions to intervene in a case challenging Kentucky’s lethal injection protocol on Eighth Amendment grounds, holding that their commencement of a civil suit in the Kentucky courts asserting factually and legally similar claims barred their subsequent assertion of such a challenge in federal court under principles of claim preclusion. Moore v. Rees, No. 06-CV-22-KKC (E.D. Ky. 2006) [R. 188, 189 therein] As noted in that case, federal law requires a federal court to afford full faith and credit to a prior state court judgment to the same extent a state court located in the state where the judgment was rendered would do so. 28 U.S.C. § 1738; Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81-85 (1984). Kentucky courts apply claim preclusion to bar “not only ... the issues disposed of in the first action, but to every point which properly belonged to the subject of the litigation in the first action and which in the exercise of reasonable diligence might have been brought forward at the time.” May v. Webb, Ky. App., 2004 WL 1699910 (2004); Whittaker v. Cecil, Ky., 69 S.W.3d 69, 72 (2002) (final judgment precludes subsequent litigation of claims that were or could have been presented in the prior
9

Case: 3:07-cv-00032-KKC Doc #: 52 Filed: 09/23/10 Page: 10 of 13 - Page ID#: 420
action). In Ralph Baze and Thomas C. Bowling v. Jonathan D. Rees, et al, Civil Action No. 04-CI-1094,
Franklin Circuit Court, Baze and Bowling contended that numerous aspects of Kentucky’s lethal injection protocol would, if implemented, violate the Eighth Amendment. In particular, plaintiffs challenged the use of pancurium bromide and the combination and sequence of the drugs involved, “the methods for obtaining, storing, mixing, and appropriately, labeling the drugs,” as well as the lack of involvement of physicians in carrying out the executions. [R. 45 at 3-4]
Plaintiffs contend that although those proceedings challenged the legality of Kentucky’s procedures in carrying out a death sentence by lethal injection, (1) they could not have asserted their claims in the prior state court proceedings because federal courts possess exclusive jurisdiction over claims under the CSA and FDCA, and (2) Kentucky preclusion law does not bar their claims because Kentucky law did not affirmatively require them to assert those claims in the prior litigation. [R. 44 at 7-8, 4-5] Neither argument is persuasive.
As to the first, under the federal Constitution, state and federal courts presumptively possess concurrent jurisdiction to decide claims arising under federal law. Congress may choose to vest that authority exclusively with the federal courts; however, to do so, Congress must withdraw state court jurisdiction “by explicit statutory directive.” See Holmes Finan. Assoc., Inc. v. Resolution Trust Corp., 33 F.3d 561, 564-66 (6th Cir. 1994); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 823 (1990) (“Title VII contains no language that expressly confines jurisdiction to federal courts or ousts state courts of their presumptive jurisdiction. The omission of such a provision is strong, and arguably sufficient, evidence that Congress had no such intent.”)
There is no language in either the CSA or the FDCA which expressly retracts the jurisdiction of the state courts to hear and decide enforcement actions brought by the Attorney General under either
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statute. Rather, the CSA provides that Attorney General may bring an enforcement action “in the district court of the United States... in which the defendant is located or resides or is doing business.” 21 U.S.C. § 842(f)(2). The FDCA similarly provides that enforcement actions may be brought in federal district court. 21 U.S.C. § 332(a). Plaintiffs argue that “[b]y expressly authorizing one type of litigation under the FDCA to be brought outside of a federal court and not mentioning any others in state court, Congress intended to limit the type of actions under the FDCA that can be brought in state court and to exclude actions not expressly mentioned by the statute.” [R. 44 at 7-8] This argument is refuted by the wellestablished rule that “the mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction over the cause of action.” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 479 (1981). It is also undermined by Congress’ express direction in 21 U.S.C. § 842(c)(1)(A) that actions seeking civil penalties for violations of the CSA may only be pursued in federal court pursuant to 28 U.S.C. § 1355, which vests federal courts with both original and exclusive jurisdiction over such matters, a powerful indication that when Congress wished to confer exclusive jurisdiction over enforcement matters under the CSA with the federal courts, it knew how to do so and did so expressly. The courts of the Commonwealth of Kentucky therefore were possessed at all times with concurrent subject matter jurisdiction over actions to enforce the CSA and FDCA where Congress did not expressly provide otherwise. Therefore, plaintiffs’ current claims under the CSA and FDCA were not unavailable to them in the prior state court litigation on the ground that Kentucky courts lacked subject matter jurisdiction to entertain them.
The plaintiffs also argue that Kentucky preclusion law does not foreclose the subsequent assertion of a claim arising from the same set of operative facts unless the applicable substantive and procedural law affirmatively requires the claim to have been asserted in the prior action. Plaintiffs cite Buis v. Elliot, Ky., 142 S.W.3d 137 (2004) for this proposition. In Buis, the Kentucky Supreme Court
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reached the unspectacular conclusion that under Kentucky law, a co-defendant is not required to assert a cross-claim for indemnification against another co-defendant in the original proceeding, as “cross-claims in Kentucky are merely permissive and not compulsory. Cr 13.07.” Id. at 141.
Nothing in Buis or the subsequent cases construing it supports the conclusion that its holding effected any sea change in longstanding Kentucky jurisprudence that requires a plaintiff to assert all claims arising out of a cause of action in a single initial proceeding. Cf. Whitton v. Weis, 2009 WL 4882840 (Ky. App. December 18, 2009) (citing Buis, finding plaintiff’s claim of fraudulent inducement in signing corporate minutes barred as claim that should have been brought in prior action by plaintiff alleging forgery of resulting contract). As the Kentucky Court of Appeals has explained, under Kentucky law “[a] cause of action is ‘a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.’” Conner v. Patton, 2008 WL 162875, at * 2-3 (Ky. App. January 8, 2008) (noting continued vitality of rule against splitting causes of action after Buis).
The operative facts giving rise to any claimed violation of the CSA and FDCA in the implementation of Kentucky’s lethal injection protocol are the very same ones at issue in the 2004 litigation challenging various aspects of the protocol on constitutional grounds. The fact that plaintiffs failed to realize that the underlying facts at issue could give rise to claims under legal theories other than those already asserted does not negative the application of claim preclusion where they failed to do so. Cf. Saud v. Bank of New York, 929 F.2d 916, 919 (2d Cir. 1991) (“it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies.”); see also Smith v. Lambert, No. 2002-CA-136, Ky. App., 2004 WL 1125039, at *2 (Ky. App. May 21, 2004); Harnett v. Billman, 800 F.2d 1308, 1313-14 (4th Cir. 1986) (“It is the existence of the present claim, not party awareness of it, that controls.”; plaintiff’s claimed discovery
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of new evidence does not prevent application of res judicata unless fraud, concealment or misrepresentation caused the plaintiff to fail to include these claims in the prior action). Because such claims could and should have been pursued in the prior state court litigation, the rule against splitting causes of actions applies, and plaintiffs are barred from pursuing them now. III. Conclusion
Accordingly, IT IS ORDERED that: 1. Plaintiffs’ “Motion to expedite ...” [R. 48] is GRANTED. 2. Plaintiffs’ Complaint [R. 5] is DISMISSED WITH PREJUDICE. 3. The Court will enter an appropriate judgment. This the 23rd day of September, 2010.
13

 
 Bowling v. Haas, Not Reported in F.Supp.2d (2007)
2007 WL 403875 Only the Westlaw citation is currently available.
United States District Court, E.D. Kentucky, Central Division, at Frankfort.
Thomas Clyde BOWLING, et al., Plaintiffs v.
Scott HAAS, et al., Defendants. Civil Action No. 07-CV-07-KKC. | Jan. 31, 2007.
Attorneys and Law Firms David M. Barron, John Anthony Palombi, Department of Public Advocacy, Frankfort, KY, for Plaintiffs. Opinion
MEMORANDUM OPINION AND ORDER
CALDWELL. *1 Plaintiffs Thomas Clyde Bowling (“Bowling”), Ralph Baze (“Baze”), and Jeffrey Leonard (“Leonard”), three Kentucky death row inmates, have filed this action seeking a declaration that the defendants’ actions in carrying out their death sentences under Kentucky law would violate the Federal Controlled Substances Act, 21 U.S.C. § 801 et seq. (“C SA”), and the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (“FDCA”) [Record No. 4].
DISCUSSION The Court screens civil rights complaints pursuant to 28 U.S.C. § 1915A. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir.1997). That statute provides:
(a) Screening. The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. (b) Grounds for dismissal. On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief. The complaint must also be screened because Plaintiffs are proceeding in forma pauperis in this action:
[T]he court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal
1

Bowling v. Haas, Not Reported in F.Supp.2d (2007)
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2).
42 U. S.C. § 1997e(a) requires a prisoner challenging prison conditions pursuant to 42 U.S.C. § 1983, Bivens, or other federal law to exhaust all available administrative remedies before filing suit in federal court. Porter v. Nussle, 534 U.S. 516, 532 (2002). The Supreme Court has recently clarified that a prisoner need not demonstrate exhaustion on the face of his complaint. Jones v. Bock, --- U.S. ----, 2007 WL 135890, *8 (2007). However, where the complaint establishes that the claim is barred by an affirmative defense, such as the statute of limitations, the complaint may be dismissed for failure to state a claim upon initial screening. Id. at *10.
In their complaint, the plaintiffs acknowledge that they have neither invoked nor exhausted the Kentucky Department of Corrections’ (“KDOC”) grievance procedure (Complaint, ¶ 57). They attempt to justify that failure on two grounds:
1. The injury complained of will only occur in the future (Complaint, ¶ 54); and
2. the KDOC would reject any grievance raising the issues presented in the complaint as non-grievable (Complaint, ¶¶ 55-59).
Both of these justifications must be rejected.
As to the first contention, the mere fact that the policy complained of will result in a concrete injury only at some point in the future does not remove the policy from the scope of the “prison conditions” subject to the exhaustion requirement. See, e.g., Treesh v. Taft, 122 F.Supp.2d 887, 890-91 (S.D.Ohio 2000) (inmate’s facial free-speech challenge to state corrections department’s policy prohibiting death row inmates from making oral final statements audible to spectators just before execution related to “prison conditions” and was thus subject to PLRA exhaustion requirement). Exhaustion is required not only where the claim arises from a specific incident in the past, but where a prisoner challenges an ongoing practice or policy implemented by prison officials. See, e.g., Baker v. Gonzalez, 06-91, Eastern District of Kentucky (unpublished disposition) (January 17, 2007 Memorandum Opinion and Order).
*2 Plaintiffs’ second contention is that, given KDOC’s prior determination that Eighth Amendment challenges to the lethal injection procedure are “non-grievable,” it is reasonable to predict that KDOC will likewise reject the plaintiffs’ present statutory challenge to the execution of the lethal injection protocol as “non-grievable.”
The Court is unwilling to engage in the perilous enterprise of attempting to divine how KDOC will interpret its own regulations to determine what issues are grievable and what issues are not. Baker v. Krieger, 287 F.Supp.2d 207 (W.D.N.Y.2003) (inmate not excused from following grievance process based on his belief, based upon prior experience, that his efforts would be futile). It is noteworthy that Plaintiffs’ present challenge is based upon federal statutes, rather than the federal Constitution, which define in far more precise terms than “cruel and unusual punishment” the locus of the conduct circumscribed. The KDOC may determine therefore that the grievance process is an apt mechanism through which to ensure that their lethal injection procedures comply with the federal laws at issue.
Further, KDOC’s Corrections Policies and Procedures state:
B. Grievable Issues
Grievable issues shall include all aspects of an inmate’s life in prison that are not specifically identified as a non-grievable issue. Grievable issues may include, but are not limited to, the following:
1. personal and social services or needs
2. Corrections policies and procedures
3. institutional policies and procedures
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Bowling v. Haas, Not Reported in F.Supp.2d (2007)
4. personal actions by staff
5. staff conflicts
6. health care concerns
C. Non-Grievable Issues
1. appeal of court decision or order
2. Parole Board decision
3. non-departmental complaint; for example, Social Security benefits and federal detainers
4. Adjustment Committee decision, Unit Hearing Officer decision, Adjustment Officer decision, or Warden’s review of these decisions; see CPP 15.6
5. classification decision or appeal of a classification decision; see CPP 18. 1, 18.15
6. decision concerning the award or denial of educational good time
7. rejected mail
8. open records or open records denial
9. sentence calculation; see CPP 17.4
KDOC CPP 15.6(II)(B), (C) (February 3, 2006). The issues raised in Plaintiffs’ complaint constitute a direct challenge to “Corrections policies and procedures” or “institutional policies and procedures,” thus falling within one of the stated examples of a grievable issue. In addition, because it appears the issues raised by Plaintiffs “are not specifically identified as a non-grievable issue” under CPP 15.6(II)(C), they would constitute grievable issues under CPP 15.6(II)(B). The text of the applicable regulation thus appears to indicate that the issues raised in Plaintiffs’ complaint are grievable.
Finally, the plaintiffs refer to KDOC’s prior refusal to process a grievance challenging the lethal injection protocol on Eighth Amendment grounds because it was an “issue dealing with legislative mandate and court decisions.” Although not clear from the complaint, the plaintiffs may be asserting that they need not exhaust administrative remedies because the KDOC’s prior refusal would make such efforts futile. Courts have excused compliance with an otherwise available administrative remedy procedure where such efforts would be futile in light of the administrative agency’s consistent adherence to the rule being challenged. See, e.g., James v. United States Dept. of Health and Human Services, 824 F.2d 1132, 1139 (D.C.Cir.1987) (“futility” exception to exhaustion requirement applies where there has been “a prior indication from the agency that it does not have jurisdiction over the matter or it has evidenced a strong position on the issue together with an unwillingness to reconsider.”) However, this equitable principle, imported from administrative law into the judicially-crafted exhaustion requirement for habeas corpus petitions, does not apply to the PLRA’s express exhaustion requirement under 28 U.S.C. § 1997e. Colton v. Ashcroft, 299 F.Supp.2d 681 (E.D.Ky.2004) (judicially created administrative remedy exhaustion requirement, unlike PLRA’s exhaustion requirement, permits waiver of further exhaustion in the face of futility); Aron v. LaManna, 4 Fed.Appx. 232, 2001 WL 128349 (6th Cir.2001); Massey v. Wheeler, 221 F.3d 1030 (7th Cir.2000) (there is no “futility exception” to the PLRA’s exhaustion requirement); Martinez v. P.A. Williams R., 349 F.Supp.2d 677 (S.D.N.Y.2004) (same).
*3 Finally, even were the PLRA’s exhaustion requirement subject to an exception for futility, it would not apply here. Exhaustion has been found futile where an agency has clearly expressed “a strong position on the issue together with an unwillingness to reconsider.” James, 824 F.2d at 1139. While KDOC may have firmly expressed its opinion that Eighth Amendment challenges to the lethal injection procedure are non-grievable, such an indication does not constitute a clear expression by KDOC that any challenge to lethal injections, in this case on distinct statutory grounds, are excluded from the grievance process. Because there is nothing to suggest that KDOC would view the present challenge as indistinguishable from all other challenges to Kentucky’s lethal injection protocol with respect to the applicability of the grievance procedure under CPP 15.6, the “futility” exception could not apply under these facts.
3

Bowling v. Haas, Not Reported in F.Supp.2d (2007) CONCLUSION
The Court being sufficiently advised, it is ORDERED as follows: (1) Plaintiffs’ complaint is DISMISSED, without prejudice. (2) The Court certifies that any appeal would not be taken in good faith. 28 U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3 d 601, 610-11 (6th Cir.1997); Kincade v. Sparkman, 117 F.3d 949 (6th Cir.1997).
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 SDSD District Version 1.0 - Docket Report

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CAPITOL, CLOSED, REFERP
U.S. District Court Eastern District of Kentucky (Frankfort) CIVIL DOCKET FOR CASE #: 3:07-cv-00007-KKC

Bowling et al v. Haas et al Assigned to: Karen K. Caldwell Referred to: Pro Se Cause: 28:1331 Fed. Question Plaintiff Thomas Clyde Bowling
Plaintiff Ralph Baze
Plaintiff Jeffrey Leonard

Date Filed: 01/23/2007 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question
represented by David M. Barron Department of Public Advocacy 100 Fair Oaks Lane Suite 301 Frankfort, KY 40601 502-564-3948 Fax: 502-564-3949 Email: davembarron@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Anthony Palombi Public Advocate's Office 100 Fair Oaks Lane Suite 301 Frankfort, KY 40601 502-564-3948 Fax: 502-564-3949 Email: john.palombi@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David M. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Anthony Palombi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David M. Barron

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V. Defendant Scott Haas Medical Director, Kentucky Department of Corrections
Defendant John D. Rees Commissioner, Kentucky Department of Corrections
Defendant Thomas Simpson Warden, Kentucky State Penitentiary
Defendant Unknown Executioners

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Anthony Palombi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/23/2007 01/23/2007 01/23/2007 01/23/2007
01/23/2007

#

Docket Text

1 APPLICATION (MOTION) for Leave to Proceed in forma pauperis by Thomas Clyde Bowling (Attachments: # 1 Inmate Account Statement) (AKR) (Entered: 01/24/2007)

2 APPLICATION (MOTION) for Leave to Proceed in forma pauperis by Ralph Baze (Attachments: # 1 Inmate Account Statement)(AKR) (Entered: 01/24/2007)

3 APPLICATION (MOTION) for Leave to Proceed in forma pauperis by Jeffrey Leonard (Attachments: # 1 Inmate Account Statement)(AKR) (Entered: 01/24/2007)

4 COMPLAINT , filed by Thomas Clyde Bowling, Ralph Baze & Jeffrey Leonard. (Attachments: # 1 Civil Cover Sheet# 2 Case Assignment Sheet# 3 Summons for Defendant Haas# 4 Summons for Defendant Rees# 5 Summons for Defendant Simpson)(AKR) (Entered: 01/24/2007)

5 NOTICE OF FILING by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze re 1 MOTION for Leave to Proceed in forma pauperis by Thomas Clyde Bowling, 2 MOTION for Leave to Proceed in forma pauperis by

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01/24/2007 01/24/2007 01/24/2007 01/24/2007 01/24/2007 01/25/2007
01/31/2007 01/31/2007

Ralph Baze, 3 MOTION for Leave to Proceed in forma pauperis by Jeffrey Leonard (AKR) (Entered: 01/24/2007)
Clerk's Note: re 3 MOTION for Leave to Proceed in forma pauperis by Jeffrey Leonard (document captioned and signed by James Slaughter); Clerk called Plff's counsel, John Palombi, and was advised that Jeffrey Leonard and James Slaughter are the same person. Jeffrey Leonard is the plaintiff's legal name, but he goes by the name of James Slaughter. (AKR) (Entered: 01/24/2007)
***MOTION SUBMITTED TO CHAMBERS of PRO SE for review: 1 MOTION for Leave to Proceed in forma pauperis by Thomas Clyde Bowling, 2 MOTION for Leave to Proceed in forma pauperis by Ralph Baze, 3 MOTION for Leave to Proceed in forma pauperis by Jeffrey Leonard (document captioned & signed by James Slaughter). (AKR) (Entered: 01/24/2007)
***FILE SUBMITTED TO CHAMBERS of PRO SE for review: Clerk's Note. (AKR) (Entered: 01/24/2007)
6 NOTICE OF APPEARANCEof David M. Barron on behalf of Bowling, Baze, Leonard by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze. (Barron, David) (Entered: 01/24/2007)
Conflict Check run. (AKR) (Entered: 01/24/2007)
7 ORDER: (1) Plffs' motions for leave to proceed in forma pauperis (Record Nos. 1 2 & 3 ) are DENIED. (2) Plffs are granted 30 days from the date of entry of this Order in which to either file mtns to proceed in forma pauperis supported by documentation required by 28 USC 1915, or collectively pay the filing fee of $350. to the Clerk of Court. (3) Upon expiration of 40 days from date of entry of this Order, the Clerk of Court shall notify the Pro Se Office. (4) Plffs are on notice that if they fail to take the steps required under subsection (2) of this Order w/in 30 days from the date of entry of this Order, the Court will dismiss the instant action for want of prosecution. If the case is dismissed under these circumstances, the Court will not reinstate it to the active docket despite the subsequent payment of filing fees. McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997) . Signed by Judge Karen K. Caldwell. (AKR)cc: COR (Entered: 01/25/2007)
8 MEMORANDUM OPINION & ORDER: 1) pltf's complaint is DISMISSED, without prejudice 2) Court certifies any appeal would not be taken in good faith. Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 02/01/2007)
9 JUDGMENT: 1) pltfs Thomas Clyde Bowling, Ralph Baze, and Jeffrey Leonard have filed a complaint pursuant to the Federal Controlled Substance Act, 21 U.S.C. 801 et seq., and the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 Record No. 4, against dfts, Scott Haas, John D. Rees; Thomas Simpson and Unknown Executioners 2) the complaint is DISMISSED, without prejudice 3) Jgm is ent in favor of dfts 4) Court

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SDSD District Version 1.0 - Docket Report

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certifies any appeal would not be taken in good faith . Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 02/01/2007)

PACER Service Center
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 Case 3:07-cv-00032-KKC As of: 03/12/2012 07:47 AM EDT Page 1 of 8
CAPITAL CASE,CLOSED,REFERP
U.S. District Court Eastern District of Kentucky (Frankfort) CIVIL DOCKET FOR CASE #: 3:07−cv−00032−KKC

Bowling et al v. Haas et al Assigned to: Judge Karen K. Caldwell Referred to: PSO Cause: 28:2201 Declaratory Judgment Plaintiff Thomas Clyde Bowling
Plaintiff Ralph Baze
Plaintiff Jeffrey Leonard Sentenced to death under the name James Slaughter TERMINATED: 03/20/2008 − James Slaughter TERMINATED: 03/20/2008

Date Filed: 05/22/2007 Date Terminated: 09/23/2010 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question
represented by David M. Barron Department of Public Advocacy − Frankfort 100 Fair Oaks Lane Suite 301 Frankfort, KY 40601 502−564−3948 Fax: 502−564−3949 Email: davembarron@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Anthony Palombi Public Advocate's Office 100 Fair Oaks Lane Suite 301 Frankfort, KY 40601 502−564−3948 Fax: 502−564−3949 Email: john_palombi@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David M. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Anthony Palombi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David M. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Anthony Palombi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

Case 3:07-cv-00032-KKC As of: 03/12/2012 07:47 AM EDT Page 2 of 8

Scott Haas Medical Director Kentucky Department of Corrections

represented by Jeffrey T. Middendorf Commonwealth of Kentucky− Justice Cabinet 125 Holmes Street Second Floor Frankfort, KY 40601 502−564−3279 Fax: 502−564−6686 Email: jeff.middendorf@ky.gov TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John C. Cummings Justice &Public Safety Cabinet 125 Holmes Street Frankfort, KY 40601 802−564−8214 Email: john.cummings@ky.gov ATTORNEY TO BE NOTICED

Defendant
John D. Rees Commissioner, Kentucky Department of Corrections

represented by Jeffrey T. Middendorf (See above for address) TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John C. Cummings (See above for address) ATTORNEY TO BE NOTICED

Defendant
Thomas Simpson Warden, Kentucky State Penitentiary

represented by Jeffrey T. Middendorf (See above for address) TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John C. Cummings (See above for address) ATTORNEY TO BE NOTICED

Defendant Unknown Executioners

Date Filed 05/22/2007 05/22/2007 05/22/2007
05/22/2007

# Docket Text
1 APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND AFFIDAVIT by Thomas Clyde Bowling (Attachments: # 1 Inmate Account Statement)(CBD) (Entered: 05/22/2007)
2 APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND AFFIDAVIT by Ralph Baze (Attachments: # 1 Inmate Account Statement)(CBD) (Entered: 05/22/2007)
3 APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND AFFIDAVIT by Jeffrey Leonard (Attachments: # 1 Inmate Account Statement)(CBD) Modified text to better describe doc. on 5/22/2007 (Dearborn, Christy). (Entered: 05/22/2007)
4 NOTICE OF FILING OF APPLICATIONS TO PROCEED IN FORMA PAUPERIS IN COMPLIANCE WITH 28 U.S.C 1915 by Jeffrey Leonard, Thomas

Case 3:07-cv-00032-KKC As of: 03/12/2012 07:47 AM EDT Page 3 of 8

05/22/2007 05/22/2007 05/22/2007 05/22/2007 05/22/2007 05/23/2007 05/23/2007 06/07/2007
06/07/2007 06/14/2007

Clyde Bowling, Ralph Baze re 2 MOTION for Leave to Proceed in forma pauperis by Ralph Baze, 1 MOTION for Leave to Proceed in forma pauperis by Thomas Clyde Bowling, 3 MOTION for Leave to Proceed in forma pauperis by Jeffrey Leonard (CBD) (Entered: 05/22/2007)
5 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Filing fee $0) , filed by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze. (Attachments: # 1 Case Assignment# 2 Civil Cover Sheet # 3 Prepared Summons as to Haas# 4 Prepared Summons as to Rees# 5 Prepared Summons as to Simpson)(CBD) Additional attachment(s) added on 5/23/2007 (Ratliff, Kay). (Entered: 05/22/2007)
6 NOTICE of Appearance by David Barron for pltfs Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze (CBD) (Entered: 05/22/2007)
Conflict Check run. (CBD) (Entered: 05/22/2007)
***MOTION SUBMITTED TO CHAMBERS of Caldwell for review: 1 MOTION for Leave to Proceed in forma pauperis by Thomas Clyde Bowling, 2 MOTION for Leave to Proceed in forma pauperis by Ralph Baze, 3 MOTION for Leave to Proceed in forma pauperis by Jeffrey Leonard (CBD) (Entered: 05/22/2007)
7 NOTICE OF FILING by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze re 5 Complaint, Exhibits to Complaint for Declaratory Judgment (Attachments: # 1 Exhibit Commissioner's Grievance Rejection Notice# 2 Exhibit Plaintiffs' appeal of grievance to DOC Commissioner)(Barron, David) (Entered: 05/22/2007)
Judge Pro Se added. (CBD) (Entered: 05/23/2007)
***MOTION SUBMITTED TO CHAMBERS of Pro Se for review: 2 MOTION for Leave to Proceed in forma pauperis by Ralph Baze, 1 MOTION for Leave to Proceed in forma pauperis by Thomas Clyde Bowling, 3 MOTION for Leave to Proceed in forma pauperis by Jeffrey Leonard (CBD) (Entered: 05/23/2007)
8 ORDER Directing Monthly Payments be made from Prison Accounts of Ralph Baze, Thomas Clyde Bowling, &Jeffrey Leonard: 1) pltfs' mtns 1 , 2 &3 GRANTED 2) dft are Scott Haas, John D. Rees, Thomas Simpson and Unknown Executioners 3) prisoner−pltfs required to pay their proportional share of the 350.00 filing fee 4) Bowling assessed initial partial filing fee of $29.94 5) Baze assessed initial partial filing fee of $36.85 6) Leonard assessed an initial partial filing fee of $6.68 7) w/in 30 days pltfs cause to be pd to clerk their initial partial filing fees 8) prisoner's custodian shall submit monthly payments until his respective portion has been paid 9) Clerk open acct for rcpt of prisoner's portion of the filing fee 10) Clerk serve a copy of this order upon Jailers/Wardens of institutions in which prisoners are currently confined and upon Ofc of Gen. Counsel for the Dept. of Corrections. Signed by Judge Karen K. Caldwell. (Attachments: # 1 Notice (Form 120) − Ralph Baze# 2 Notice (Form 120) − Thomas Clyde Bowling# 3 Notice (Form 120) − Jeffrey Leonard)(CBD)cc: COR, Warden KSP (all prisoners confined at KSP), Ofc Gen Counsel Dept of Corrections (Entered: 06/07/2007)
9 ORDER TO SHOW CAUSE: pltfs show cause w/in 30 days why their cmp should not be dismissed for failure to state claim and for want of subject matter jurisdiction. Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 06/07/2007)
10 ORDER: 1) Clerk prepare and serve copies of summons and compliant on behalf of pltfs hereinafter described 2) Fkt Clerk prepare and issue summons for Dr. Scott Haas, Commisisoner John D. Rees, and Warden Thomas Simpson 3) Fkt Clerk also directed to prepare 3 sets of doc.s, each set consisting of copies of summons, complaint, and instant Order. One set of each be served on dfts Haas, Rees and Simpson at offices of Ky Dept of Corrections 4) Fkt Clerk complete USM Form 285, if required. If insufficent info exists to complete summons or USM Form 285, Clerk promptly make clerk's entry on docket stating why Clerk cannot fill out summons or USM Form 285 or any other doc.s necessary to effectuate service 5) After Fkt Clerk's Ofc has prepared (forms), a Deputy Clerk in that office shall forward doc.s, by cert. mail, to USM Ofc in Lexington, KY and shall enter cert mail rcpt into instant record 6) USM serve documents. Service shall be made by

Case 3:07-cv-00032-KKC As of: 03/12/2012 07:47 AM EDT Page 4 of 8

06/14/2007
06/18/2007 06/19/2007 06/21/2007 06/21/2007 06/25/2007
07/09/2007 07/09/2007 07/09/2007 07/10/2007 07/10/2007
07/10/2007
07/10/2007 07/11/2007

certified mail, return receipt requested. 7) USM shall make a return report to Court of whether summons is executed or unexecuted w/in 40 days of date of entry of this Order 8) Clerk send copy of this Order to pltfs. Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 06/14/2007)
11 Summons Issued (Org. + 1) as to Scott Haas, John D. Rees, Thomas Simpson; issued summons, copy of complaint and Order 10 for each dft and a USM Form 285 forwarded to USM Lexington, KY for service to be made by Certified Mail, Return Receipt Requested. (Attachments: # 1 USM Form 285# 2 Certiffied Mail Receipt)(CBD) (Entered: 06/14/2007)
12 AMENDED COMPLAINT against all defendants, filed by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze.(Barron, David) (Entered: 06/18/2007)
13 CERTIFIED MAIL RECEIPT to US Marshal re 11 Summons Issued. (CBD) (Entered: 06/19/2007)
14 SUMMONS Returned Executed by USM−285 for Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze via certified mail to Scott Haas served on 6/18/2007, answer due 7/9/2007. (CBD) (Entered: 06/25/2007)
15 SUMMONS Returned Executed by USM−285 for Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze via certified mail to John D. Rees served on 6/18/2007, answer due 7/9/2007. (CBD) (Entered: 06/25/2007)
Clerk's Note: Clerk notes that an 12 Amended Complaint was filed; however, no summons were provided to the Clerk for issuance. If you desire summons to be issued, the forms are available on the Court's website, www.kyed.uscourts.gov. Summons may be submitted electronically by filing a document entitled Notice of Filing with a certificate of service as the main document and submitting the prepared summons as an attachment to the Notice of Filing. (CBD) (Entered: 06/25/2007)
16 RESPONSE TO ORDER TO SHOW CAUSE by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze. (Palombi, John) (Entered: 07/09/2007)
17 NOTICE OF APPEARANCE by Scott Haas, John D. Rees, Thomas Simpson.(Cummings, John) (Entered: 07/09/2007)
18 MOTION for Extension of Time to File Answer re 12 Amended Complaint, 5 Complaint, by Scott Haas, John D. Rees, Thomas Simpson (Attachments: # 1 Proposed Order Granting Motion for Extension of Time)(Cummings, John) (Entered: 07/09/2007)
***FILE SUBMITTED TO CHAMBERS of Pro Se Law Clerk for review: 16 Response to Order to Show Cause (CBD) (Entered: 07/10/2007)
Clerk's Note: Clerk has confirmed by phone that the main pdf image at DE 18 MOTION for Extension of Time to File Answer by Scott Haas, John D. Rees, Thomas Simpson is a correct and complete image. Counsel's ofc explained the pleading was just incorrectly captioned "Memorandum in Support." (CBD) (Entered: 07/10/2007)
19 RESPONSE in Opposition re 18 MOTION for Extension of Time to File Answer re 12 Amended Complaint, 5 Complaint, by Scott Haas, John D. Rees, Thomas Simpson filed by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze. (Attachments: # 1 Exhibit Lex Herald Leader news article# 2 Exhibit proposed order denying Defendants' motion for extension of time)(Barron, David) (Entered: 07/10/2007)
20 STRICKEN pursuant to Order 21 Modified on 7/17/2007 (Dearborn, Christy). (Entered: 07/10/2007)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk for review: 18 MOTION for Extension of Time to File Answer re 12 Amended Complaint, 5 Complaint, by Scott Haas, John D. Rees, Thomas Simpson (CBD) (Entered: 07/11/2007)

Case 3:07-cv-00032-KKC As of: 03/12/2012 07:47 AM EDT Page 5 of 8

07/17/2007
07/19/2007
07/20/2007 07/20/2007 07/24/2007 08/09/2007 08/15/2007 08/16/2007 08/24/2007
08/27/2007 08/27/2007 08/27/2007 09/02/2007

21 ORDER: 1) Clerk STRIKE pltf's Motion to Compel 20 2) dfts' Motion 18 for Extension of Time to Answer 12 Amended Complaint is GRANTED. Dfts have to and until 7/24/2007 to file answer or resp. pldg to the (Amended) Complaint 3) dft directed to file memo in reply to issues raised by Court's 7/7/2007 Order to Show Cause 9 and addressed by pltf's 7/9/2007 Response 16 on or before 8/1/2007. Pltfs are directed to neither file nor tender any further briefing on said issues except upon further Order from the Court . Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 07/17/2007)
22 MOTION for Extension of Time to File Response/Reply as to 16 Response to Order to Show Cause, 21 Order on Motion to Compel, Order on Motion for Extension of Time to Answer,,,, by Scott Haas, John D. Rees, Thomas Simpson (Attachments: # 1 Memorandum in Support of Motion for Additional Time to File Reply# 2 Proposed Order Granting Motion for Additional Time to File Reply)(Cummings, John) (Entered: 07/19/2007)
23 ORDER: Dfts' Motion 22 is GRANTED. Dfts shall have to &until 8/15/07 to file memo regarding issues raised by Court in its 6/7/07 Order to Show Cause (Record No. 9 ) . Signed by Judge Karen K. Caldwell. (AKR)cc: COR (Entered: 07/20/2007)
24 NOTICE OF APPEARANCE by Scott Haas, John D. Rees, Thomas Simpson.(Middendorf, Jeffrey) (Entered: 07/20/2007)
25 ANSWER to Amended Complaint for Declaratory Judgment by Scott Haas, John D. Rees, Thomas Simpson.(Cummings, John) (Entered: 07/24/2007)
26 SUMMONS Returned Executed by USM (USM 285) for Thomas Clyde Bowling; via Certified Mail to Thomas Simpson served on 6/18/2007, answer due 7/9/2007. (Attachments: # 1 Green Card and Copy of Summons)(CBD) (Entered: 08/13/2007)
27 REPLY to 9 , 23 the Plaintiffs' Response to the Court's Show Cause Order filed by Scott Haas, John D. Rees, Thomas Simpson. (Cummings, John) (Entered: 08/15/2007)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: 9 Order to Show Cause − Response and Reply filed, i.e. 16 &27 . (AKR) (Entered: 08/16/2007)
28 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze Motion for preliminary injunction barring Baze's execution on Sept. 25th (Attachments: # 1 Memorandum in Support Memo in support of emergency motion for preliminary injunction# 2 Exhibit Statement from Governor's Office on Intent to sign death warrant on Baze# 3 Exhibit news article on Governor's statements concerning pending litigation# 4 Exhibit Utah Controlled Substances Act regulations and rules# 5 Proposed Order granting Baze's motion for a preliminary injunction barring his execution)(Barron, David) (Entered: 08/24/2007)
29 EMERGENCY MOTION for Judgment on the Pleadings by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze (Attachments: # 1 Proposed Order Granting Partial Judgment on the Pleadings)(Palombi, John) Modified text on 8/27/2007 (Dearborn, Christy). (Entered: 08/27/2007)
Clerk's Note: Clerk's Ofc rec'd call from counsel requesting that the language "Emergency" be added to DE 29 MOTION for Judgment on the Pleadings by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze. Language has been added. (CBD) (Entered: 08/27/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell and PSLC for review: 28 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 29 EMERGENCY MOTION for Judgment on the Pleadings by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze (CBD) (Entered: 08/27/2007)
30 EMERGENCY MOTION to Expedite by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze ruling on jurisdictional quesstion raised sua sponte (Attachments: # 1 Proposed Order)(Palombi, John) Modified text to include text in italics to better describe pleading on 9/4/2007 (Ratliff, Kay). (Entered: 09/02/2007)

Case 3:07-cv-00032-KKC As of: 03/12/2012 07:47 AM EDT Page 6 of 8

09/04/2007 09/06/2007
09/06/2007 09/06/2007
09/07/2007 09/07/2007 09/11/2007 09/11/2007 09/13/2007
09/14/2007 11/21/2007 11/26/2007 11/26/2007 12/11/2007

***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell − Pro Se Law Clerk for review: 30 EMERGENCY MOTION to Expedite ruling on jurisdictional question raised sua sponte by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze. (AKR) (Entered: 09/04/2007)
31 RESPONSE to Motion re 30 EMERGENCY MOTION to Expedite by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze filed by Scott Haas, John D. Rees, Thomas Simpson. (Attachments: # 1 Exhibit 1 − DOC Letter dated May 14, 2002 to DPA# 2 Exhibit 2 − Justice Cabinet Letter dated August 3, 2004 to DPA# 3 Exhibit 3 − Exhibits to Complaint and Consolidated Memorandum of Law, Case No. 04−CI−1094 Franklin Circuit)(Cummings, John) (Entered: 09/06/2007)
32 RESPONSE in Opposition re 29 MOTION for Judgment on the Pleadings by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze filed by Scott Haas, John D. Rees, Thomas Simpson. (Cummings, John) (Entered: 09/06/2007)
33 NOTICE by Ralph Baze re 28 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 29 MOTION for Judgment on the Pleadings by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze, 30 EMERGENCY MOTION to Expedite by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze BAZE'S EXECUTION IS AT 7P.M. CENTRAL ON SEPTEMBER 25, 2007 (Barron, David) (Entered: 09/06/2007)
34 REPLY to Response to Motion re 30 EMERGENCY MOTION to Expedite by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Bazereply to response to emergency motion to expedite ruling on jurisdiction filed by Ralph Baze. (Barron, David) (Entered: 09/07/2007)
35 REPLY to Response to Motion re 29 MOTION for Judgment on the Pleadings by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Bazereply to response opposing partial judgment on the pleadings filed by Ralph Baze. (Barron, David) (Entered: 09/07/2007)
36 RESPONSE in Opposition re 28 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze filed by Scott Haas, John D. Rees, Thomas Simpson. (Attachments: # 1 Exhibit 1 − Lambert v. Buss, 2007 WL 2265143# 2 Proposed Order Denying Plaintiff's Motion)(Cummings, John) (Entered: 09/11/2007)
37 REPLY to Response to Motion re 28 EMERGENCY MOTION for Preliminary Injunction by Ralph BazeBaze's reply to response opposing injunction barring his execution filed by Ralph Baze. (Barron, David) (Entered: 09/11/2007)
38 NOTICE by Ralph Baze re 28 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 29 MOTION for Judgment on the Pleadings by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze, 30 EMERGENCY MOTION to Expedite by Jeffrey Leonard, Thomas Clyde Bowling, Ralph Baze Commonwealth has sought reconsideration of order staying Baze execution (Barron, David) (Entered: 09/13/2007)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se Law Clerk for review: 38 Notice of Commonwealth seeking reconsideration of Supreme Court Stay. (AKR) (Entered: 09/14/2007)
39 MOTION to Withdraw as Attorney by Scott Haas, John D. Rees, Thomas Simpson (Attachments: # 1 Proposed Order Granting Motion)(Cummings, John) (Entered: 11/21/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se for review: 39 MOTION to Withdraw as Attorney by Scott Haas, John D. Rees, Thomas Simpson. (AKR) (Entered: 11/26/2007)
40 ORDER: 1. Jeffrey T. Middendorf's Motion to Withdraw [Dkt 39] is GRANTED. (Attorney Jeffrey T. Middendorf terminated). Signed by Judge Karen K. Caldwell on 11/26/2007. (AKR)cc: COR (Entered: 11/26/2007)
41 MOTION to Withdraw by Jeffrey Leonard leonard's motion to withdraw as plaintiff because death sentence commuted Motions referred to Pro Se. (Attachments: # 1 Exhibit Governor's commutation of Leonard's death sentence, #

Case 3:07-cv-00032-KKC As of: 03/12/2012 07:47 AM EDT Page 7 of 8

12/12/2007 03/20/2008
03/20/2008
05/05/2008 06/04/2008 06/19/2008 06/20/2008 03/03/2010
03/30/2010 03/31/2010 04/06/2010

2 Proposed Order granting Leonard's motion to withdraw as Plaintiff)(Barron, David) (Entered: 12/11/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 41 MOTION to Withdraw by Jeffrey Leonard leonard's motion to withdraw as plaintiff because death sentence commuted. (AKR) (Entered: 12/12/2007)
42 ORDER: 1) Pltf Jeoffrey Leonard's Motion to Withdraw as Plaintiff 41 is GRANTED. Intervenor Complaint filed by Leonard is DISMISSED WITH PREJUDICE. Appropriate Jgm will be entered. 2) Pltf Ralph Baze's 28 EMERGENCY MOTION for Preliminary Injunction is DENIED AS MOOT 3) Pltfs' 30 EMERGENCY MOTION to Expedite Ruling is DENIED AS MOOT 4) Pltfs' 29 MOTION for Partial Judgment on the Pleadings is DENIED WITHOUT PREJUDICE. 5) Pltfs file memo of law w/in 45 days after entry of this Order. Dfts shall file a memo of law, in response w/in 30 days after pltfs file their memo. Pltfs may file a memo of law, in reply w/in 15 days after dfts file their response. Signed by Judge Karen K. Caldwell on 3/20/2008.(CBD)cc: COR, skv (Entered: 03/20/2008)
43 JUDGMENT: 1) Jeoffrey Leonard filed a civil action against John D. Rees; Thomas Simpson; Scott Haas; and Unknown Executioners 2) the complaint is DISMISSED WITH PREJUDICE 3) Jgm is ent in favor of dfts 4) Court certifies any appeal would not be taken in good faith. 5) this is FINAL and APPEALABLE Jgm and there is no just cause for delay 6) matter DISMISSED and STRICKEN. Signed by Judge Karen K. Caldwell on 3/20/2008.(CBD)cc: COR, skv (Entered: 03/20/2008)
44 RESPONSE BRIEF to 42 Order Requiring Briefing On Claim Preclusion filed by Thomas Clyde Bowling, Ralph Baze. (Palombi, John) (Entered: 05/05/2008)
45 RESPONSE BRIEF to 42 , 44 Order Requiring Briefing On Claim Preclusion filed by Scott Haas, John D. Rees, Thomas Simpson. (Attachments: # 1 Exhibit Exhibit 1 Complaint in Baze v. Rees, # 2 Exhibit Exhibit 2 Judgment in Baze v. Rees, # 3 Exhibit Exhibit 3 Excerpt from Depo of Dr. Scott Haas)(Cummings, John) (Entered: 06/04/2008)
46 REPLY BRIEF to 45 , 42 filed by Thomas Clyde Bowling, Ralph Baze. (Palombi, John) (Entered: 06/19/2008)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se Law Clerk for review: 46 REPLY BRIEF, 45 RESPONSE BRIEF. (AKR) (Entered: 06/20/2008)
47 NOTICE by Ralph Baze, Thomas Clyde Bowling re 44 RESPONSE BRIEF, 16 Response to Order to Show Cause notice of supplemental authority to Plaintiffs' briefs on jurisdiction and res judicata − Ringo v. Lombardi, No. 2:09−cv−04095 (W.D. Mo., March 2, 2010) (Attachments: # 1 Ringo v. Lombardi, No. 2:09−cv−04095 (W.D. Mo., March 2, 2010))(Barron, David) (Entered: 03/03/2010)
48 MOTION to Expedite by Ralph Baze, Thomas Clyde Bowling motion to expedite ruling on threshold issues of subject matter jurisdiction, whether Plaintiffs have stated a claim upon which relief can be granted, and claim preclusion Motions referred to Pro Se. (Attachments: # 1 Proposed Order granting motion to expedite)(Barron, David) (Entered: 03/30/2010)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law clerk for review: re 48 MOTION to Expedite by Ralph Baze, Thomas Clyde Bowling ruling on threshold issues of subject matter jurisdiction, whether Plaintiffs have stated a claim upon which relief can be granted, and claim preclusion (CBD) (Entered: 03/31/2010)
49 RESPONSE to Motion re 48 MOTION to Expedite by Ralph Baze, Thomas Clyde Bowling motion to expedite ruling on threshold issues of subject matter jurisdiction, whether Plaintiffs have stated a claim upon which relief can be granted, and claim preclusion filed by Scott Haas, John D. Rees, Thomas Simpson. (Cummings, John) (Entered: 04/06/2010)

Case 3:07-cv-00032-KKC As of: 03/12/2012 07:47 AM EDT Page 8 of 8

04/06/2010
04/07/2010 04/22/2010 04/22/2010 09/23/2010 09/23/2010

50 NOTICE by Scott Haas, John D. Rees, Thomas Simpson re 49 Response to Motion, 48 MOTION to Expedite by Ralph Baze, Thomas Clyde Bowling motion to expedite ruling on threshold issues of subject matter jurisdiction, whether Plaintiffs have stated a claim upon which relief can be granted, and claim preclusion Notice of Published Kentucky Supreme Court Decision Addressing Application of Res Judicata Under Kentucky Law (Cummings, John) (Entered: 04/06/2010)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: re 48 MOTION to Expedite by Ralph Baze, Thomas Clyde Bowling motion to expedite ruling on threshold issues of subject matter jurisdiction, whether Plaintiffs have stated a claim upon which relief can be granted, and claim preclusion. Response (unopposed to motion) re 49 . (AKR) (Entered: 04/07/2010)
51 NOTICE by Ralph Baze, Thomas Clyde Bowling re 16 Response to Order to Show Cause plaintiffs' notice of potentially relevant decision (Durr v. Strickland) to briefing on subject matter jurisdiction and failure to state claim upon which relief can be granted (Barron, David) (Entered: 04/22/2010)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: 51 Notice of potentially relevant decision (Durr v. Strickland) to briefing on subject matter jurisdiction and failure to state claim upon which relief can be granted. (AKR) (Entered: 04/22/2010)
52 MEMORANDUM OPINION &ORDER: 1. Plaintiffs' "Motion to expedite..." 48 is GRANTED 2. Plaintiffs' Complaint 5 is DISMISSED WITH PREJUDICE 3. The Court will enter an appropriate judgment. Signed by Judge Karen K. Caldwell on 9/23/2010.(CBD)cc: COR (Entered: 09/23/2010)
53 JUDGMENT: The Complaint filed under the Controlled Substances Act, 21 U.S.C. § 801−971, and the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301−399a, by plaintiffs Thomas Clyde Bowling and Ralph Baze against Defendants Scott Haas; John D. Rees; Thomas Simpson; and Unknown Executioners 5 is DISMISSED WITH PREJUDICE and Judgment is ENTERED in favor of the Defendants. Signed by Judge Karen K. Caldwell on 9/23/2010.(CBD)cc: COR (Entered: 09/23/2010)