F I LED

IN THE UNITED STATES DISTRICT COURT

U. S. DISTRICT COURT MIDDLE DISTRICT OF TENN

FOR THE MRID~D]~J'.HQIS!TR~LCIOOF NTENNESSEE
IN CLERK'S OFFIC

OCT ~ 4 2006

DON JOHNSON, Plaintiff,

OCT 0 4 )2006
)
u.,S, DISTRICT COURT
MID" DIS1 jfEr-m,

BY_ _~~~~~_ __
CEPUTY CLERK
3 06 0946

v

) Dcath PenaltY Case

) Exccution Date October 25, 2006,1 :00 a"m,

GEORGE LITILE, in his official capacity as )

Tennessee's Commissioner of

)

JUDGE CAMPBELL

COllection;

)

)

RICKY BELL, in his official capacity as

)

Warden, Riverhend Maximum

)

SecUlity Institution;

)

)

JOHN DOE EXECUTIONERS 1-100;

)

)

)

Defendants

)

COMPLAINT

l. Nature of Action This action is brought pursuant to 42 US C §1983' for violations ~md t!neatened

violations of the right ofl'laintiif to be free from clUel and unusual punishment under the Eighth and

FOUlteenth Amendments to thc United States Constitution Plaintiff seeks equitable and injunctive

relief

II. Plaintiff

2. Plaintiff Don Johnson is a United States Citizen and a resident of the State of

Tennessee He is currently a death-sentenced inmate in the custody of Defendants and under the

I The United States Supreme COUlt decisions in Hill v McDonough, 547 U S _ (2006) and Nelson v Campbell, 541 US 647 (2004) confirm that a civil rights action pUlsuant to 42 US C §1983 is an appropriate vehicle for a claim alleging that the procedures used to callY out a death sentence violate the Eighth Amendment

Case 3:06-cv-00946 Document 1 Filed 10/04/2006 Page 1 of 25

contlOl and supervision of the I ennessee Department of Conections He is held in the Riverbend

Maximum Secmity Prison, 7475 Cocbill Bend Industrial Drive, Nashville, Davidson County,

Iennessee; telephone (615) 350-3400

IlL Defendants

3.

Defendant George Little is the Commissioncr of the I ennessce Department of

Corlections Plaintiff sues Commissioner Little in his official capacity Defendant is a state actor

acting under color of state law, and his actions in seeking to execute or executing Plaintiff as

described infta violate Plaintiff's constitutional rights, as described infra

4

Defendant Ricky Bell is the Warden ofRiver bend Maximum Secmity Institution Bell

is directly in chargc of executing Plaintiff Plaintiff sues Warden Bell in his official capacity

Defendant is a state actor acting under color of state law, and his actions in seeking to execute or

executing Plaintiffas described infta violate Plaintiffs constitutional rights, as described infra

5

Defendants John Doe Executioners 1-100 are employed or contracted by the

I ennessee Department of COllections to prepare for, and carTY out, the scheduled execution of

Plaintiff. Plaintiff does not know, and Defendants refuse to reveal, the identities ofsuch persons.

Such Defendants are state actors acting under color of state law, and their actions in seeking to

execute or executing Plaintiff as described intra violate Plaintiff's constitutional rights, as described

in/fa.

JURISDICTIONNENUE

6

In this action, Plaintiffinvokes 28 U.S.c. §§ 1331 (federal question), 1343 (civil rights

violations), 2201 (declaratory relief), and 2202 (£lnther relief). Ihis action arise under the Eighth

and Fomteenth Amendments to the United States Constitution and under 42 USC §1983.

2

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7 Venue is proper in this district under 28 U SC §1391 and this Court has personal

jurisdiction over the Dehmdants in this matter because the events giving rise to these claims will

OCCllI in Nashville, Tennessee which is within the Middle District of Tennessee.

V. FACTS

8 Plaintiff Donnie Johnson has been on death row since 1985

9

Pursuant to Tenn. Code Ann § 40-23-114, Defendant Bell andlor his agents must

offer each condemned inmate in Tcnnessee sentenced to death prior to January 1,2000, the option

ofselecting either lethal injection or electrocution as the method of execution !fa prisoner refuses

to make a choice, lcnn Code Ann § 40-23-114, mandates that the prisoner be executed by lethal

injection

10 On June 20, 2006, the Tennessee Suprcme Court set Ml Johnson's execution for

October 25, 2006 On June 21, 2006, Mr Johnson, through counsel, sent a Ictter to the

Commissioner of Corrections, Defendant Little, objecting to both methods of execution on the

grounds that each method is tortur ous and violates the eighth and fourteenth amendments to the

United States Constitution and seeking information to assist Mr Johnson in making an informed

selection between the two methods, including a request to have an independent expert test the

electric chair

l I O n August 17, 2006, Dclendant Little overruled Mr Johnson's objections and

declined to provide Mr Johnson with any additional information

12 On or about September 19,2006. Mr Johnson, through counsel, learned that the

primary engineer and manufacturer of I ennessee's electric chair, fred A Leuchtel, had recently

stated that an execution in Tennessee's electric chair would be a "torture session", "tantamount to

3

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somebody being burned at the stake"
13 On September 19, 2006, Mr Johnson through counselrenewcd his objections to
lethal injection and the use of the 1 ennessee electric chair to the Commissioner, citing Mr
Leuchter's recent pronouncements and renewed his request for information necessary for Mr
Johnson to make an informed selection between the two methods of execution
14. On September 28, 2006, Warden Bell presented Mr Johnson with an "Affidavit
Concerning Method of Execution"
15 The affidavit is a pre-printed form
16 Mr Johnson had no choice in the wording of the form
17 Mr Johnson placed a checkmark on the pre-printed form next to the words "] waive
the right to have my execution carried out by lethal inj ection and choose to be executed by
electrocution"
18 Mr Johnson, by counsel, attached a Notice of Objections to the pre-printed form Mr
Johnson explicitly informed the Warden:
Your act of asking Donnie Johnson to elect how you, the Warden, shall kill him is barbar ic, inhumane, cruel, and offensive to any notion of human dignity.
Eaeh of the alternatives proposed by you in your proffered document requesting an election of the method of execution is unconstitutional because each method as administered by you involves cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and the Tennesscc Constitution
Donnie Johnson does not consent to being tortUlcd by any method or means, which includes both of the unconstitutional alternatives proposcd in the document you have presented to him requesting an election
4
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Because you have presented Donnie Johnson a choice between two unconstitutional alternatives, any decision, selection, choice, waiver, or action by Donnie Johnson with respect to the form you have provided has not been fiee, knowing, voluntary, or intelligent. The choice you have provided is no choice at all and is thus fundamentally unfair, and unconstitutional as a violation of due process of law under the Eighth and fourteenth Amendments
In addition, you and thc Department of Corrections havc failed to provide Donnie Johnson full and complete information which Donnie Johnson has requested concerning cach of the altcrnatives proposed by the Warden Donnie 10hnson has also bcen denied any opportunity to test the clectric chair rhus, any allegcd sclection, choice, wai ver, or action by Donnie Johnson w ilh respect to the 10r111 providcd by you has not been fully informed and any such action has not been knowing, voluntary, or intelligent Where Donnie Johnson has not been provided or allowed to obtain requested necessary information to evaluate the alternatives proposed in the Warden's document, Donnie Johnson cannot be executed using either proposed method
Under the circumstances, your proposed execution ofDonnie Johnson using either proposed method, including after you have requested a choice between two unconstitutional methods without providing full information, is unconstitutional and otherwise prohibited under the Eighth and fourteenth Amendments to the United States Constitution
19 Mr, Johnson, by counsel and his objections, expressly informed Defendants that he
did not consent to being tortured by any method of execution
A Electrocution
20 On or around November 29, 1989, Fred A Leutcher, Jr " installed the Fred A
Leutcher Associates, Inc, Modular Elcctrocution System (Electric Chair) at the Riverbend
Maximum Security Institution (RMSI)
21 On or around April 16, 1994, Michael S Morse visited the RMSI and performed tests
5
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on the Electric Chair Morse opined that the Electric Chair did not deliver an adequate cunent and did not have the capacity to function with a typical load for an execution Morse made fourteen specific recommendations for modifications to the Electric Chair
22 On or around April 25, 1994, Jay Wiechert visited the RMSI and examined the Electric Chair Wiechert opined that the Electric Chair did not function properly Wiechert made seven specific recommendations for modifications to the Electric Chair
23 Prior to May 1, 1994, technical personnel at the RMSI made some, but not all, ofthe modifications Morse and Wiechert suggested
24 On April 23, 1996, JVM Industries, the successor to fred A Leuchter, Associates, Inc, wrote the RMSI Associate Warden for AdministJalion JVM informed that it had bccome aware ofthe modifications made to the Electric Chair JVM wrote that the modifications raised the specter ofa "brain dead vegetable at the conclusion ofthe execution procedUIe", and said that if the modifications remained in place the Electric Chair was an "instrument of torture."
25 On September 14,2006, a Nashville, I ennessee, television news program reported that Commissioner Little has acknowledged that, "In some other states, they haven't followed the proper procedures, and unfortunately they have ended up having some very tellible results with the executions" When asked whether that was his worst fear, Commissioncr Little responded, "Well, yes." http://www.newschanneI5.com/Global/stol v.asp?s~5419521. Last checked 1013/06
26 In that same interview, Commissioner Little admitted that "Well, until you actually have somebody in the chair you can't have that 100 percent certainty" Id
27 On or about September 15,2006, fred Leuchter, wrote to Tennessee Governor Phil Bredesen imploring him not to use the Tennessee Electric Chair Leuchter warned Governor
6
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Bledesen that "It's tantamount to somebody being burned at the stake." Builder oj State's Electric Chair Calls it a Torture Device, Tennessean, Scptember 16,2006, P llA
28 Jay Wiechert, the engincer who has modified the electric chair that Lcuchter built, has bcen involyed In botched clcctrocutions In the State of Florida http://wvvw.nevvschannel5.com/Global/story .asp 's=5419521 (Last checked 10/3/06)
29 If the I ennessee electric chail is used to kill Donnie Johnson, Mr Johnson will be
burned excessively, traumatized by a process of death where human and mechanical mistakes
have resulted in prisoners receiving insufficient electrocution to kill them upon the first
attempt, and he will face an unneccssary risk ofpain and suffering.
30 While 1 cnnessee has never used this particular electric chair, the experience of other states establishes that the use of the elecllic chair is cruel and unusual punishment.
31 The execution of Alpha Otis Odell Stephens in GeOIgia is but one example of a "botched" electrocution Dick Pettys of the Associated Press described the Stephens execution:'
Seconds afier a mask was placed over [Stephens's] head, the first jolt was applied, causing his body to snap forward and his fists to clench His body slumped when the current stopped two minutes later, but shortly afierward, witnesses saw him struggle to breathe. During the required six minutes in which the body was allowed to cool before doctOIs could examine it, Stephens took about 23 breaths At 12:26 am, two doctors examined Stephens and said he was alive. At the second jolt, administered at 12:28 am, Stephens again snapped upright. The charge was discontinued at 12:30 am, and at 12:36 am, he was pronounced dead
32 The State of Alabama has also had multiple problems with its electric chair
2Audio reeOIdings of Botched executions in GeOIgia can be accessed at http://www soundpOItraits OIg/on-air/exccutiontapes Last checked 10/4/06
7
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Mutilation, burns, and botched executions characterize Alabama's use ofthe electric chair. The histOlY of Alabama's executions establishes a pattern of clUel, tOlturouS, painful, and plOtracted executions
33 During Horace Dunkins's cxecution, the prison warden activated the electric chair sometime shOltly afiermidnight on July 13, 1989. Eyewitnesses said they observed Mr Dunkins's right hand tense and his left arm jerk upward against the restraints It quickly became apparent that Mr Dunkins was not dead A second exccution was attempted which resulted in severe burning and mutilation of MI. Dunkins's body. Witnesses saw smoke coming hom Mr. Dunkins' ears and legs. It was subsequently repOlted by State representatives that cables attaching Alabama's power supply and the electric chair were implOperly connected, resulting in insufficient voltage discharge to instantancously kill Mr. Dunkins It was also repOlted that Mr. Dunkins may have received 60 or 70 volts of electricity during the state's first attempt at execution, which likely caused great pain but did not plOduce death. Nearly twenty minutes elapsed before Mr Dunkins was finally plOnounced dead Although electrodes were fixed on the head and left leg near the knee, Horace Dunkins rcceived electrical burns in his hip. left thigh, buttocks, lower back, right shoulder and right thigh
34. Michael Lindsay received bum marks on his scrotum and left arm. State Medical Examiner LeRoy Riddick, M D, states that Lindsay had a "2 inch zone of bum on the left side of the scrotum." (Lindsay Postmortem Report) Dr Riddick also described [a]rcing marks around left
8
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groin." Id. Furthermore, the state medical examiner's autopsy revealed that Michael Lindsay's body contained both "a small abrasion on the mid-portion of the right clavicle" and a 4 inch semicircular bum on his left for earm Id.
35. Wayne Ritter's autopsy similarly revealed bums to his scrotum and even bums to his chest, neck and abdomen. Ritter, as Lindsay, had a "2 inch zone of bums on the left side of the scrotum" (Ritter Postmortem Report) This bum corresponded to azone ofbums on Ritter's inside left leg. Ritter's autopsy also revealed injuries to his chest in the form of "a zone of violaceous changes to the upper portion of the chest on eaeh side of the sternal notch" Id. LeRoy Riddick M D, and Gary Cumberland. M D., the State Medical bxaminers for Ritter's autopsy, also located bums on Ritter's neck, 'anteriorly on each side of the central portions of the neck ". Id.
36 Virginia, like Georgia and Alabama, has also experienced mUltiple problems with its electric chair On August 10, 1992, Frank J Coppola was put to death by electrocution. After two jolts of electricity had been applied to him, the death chamber reportedly filled with the smell and sizzle of burning as Coppola's hcad and leg burst into flamcs On October 17, 1990, blood poured from Wilbert Lee Evans' eyes and nose after the CUllent was applied Witnesses noted audible moaning during the electrocution Evans reportedly made a sizzling sound like a pressure cooker before its top has been put on. On August 22, 1991, Derick Lynn Peterson moaned audibly as electric current was applied to him Af\cr two minutes of current and a fOUl minute wait, a prison doctor checked Peterson's pulse ",ith his stethoscopc and announced that Peterson was not dead After another four-minutc wait, the doctor again checked the pulse and announced that Peterson had not expired Finally, a second surge of electricity was applied In total, it took over thirteen minutes to complete Peterson's execution A witness to Roger Keith Coleman's May 20, 1992 execution
9
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reported smoke coming fiom Coleman's leg Coleman required two 1,700-volt jolts to die 37 Florida has also had similar problems with its electric chair, a chair that thc current
Tennessee consultant, Jay Weichert, has worked on In 1997, Pedro Medina was put to death in the infamous "Old Sparky" During his execution, Medina's hcad literally caught on fire, the flames shooting more than a foot into the ail, the room filled with smoke and the witnesses were huniedly lUshed fiom the room "Old Sparky" was replaced with a new model In 1999, Allen Lee "Tiny" Davis was put to death in the new and improved Florida electric chair The chair had been built with Davis in mind Davis's body literally burst open, blood pouring out Photos of "Tiny" Davis are widely available on the internet See http://www.ccadp.org/tinydavis.htm (Last checked 10/4/06)
38 The use of the electric chair has been repeatedly characterized as the modern day version of burning at the stake See Glass v J.ouiliana, 471 U S 1080, 1994 (1988) (Brennan, J respecting the denial of cert)
39 The Supreme Court of Georgia has found that the elcctric chair constitutes cruel an unusual plmishment under the state Constitution DawlOn v State, 554 S.E 2d 137, 144 (Ga 2001)
R Lethal Injection 40 The entire Tennessee Department ofConection lethal injection protocol is set forth in its "Execution Manual" 41. Under the protocol, an execution by lethal injection requires the participation of the Commissioner, the Warden, the Deputy Warden, the Administrative Assistant, the Death Watch Supervisor and assigned officers, a Chaplain, a Medical Doctor and associate, an "Execution Team," an "IV Team," and an "Extraction Team." 42 Ihc Officer in Charge and/Ol the Assistant Officer in Charge is responsible for the
10
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crne and maintenance of the Death Chamber and all appliances and equipment, the training of the Execution I earn, and carrying out the execution of the condemned prisoner
43 Ihe Officer in Char ge and assistant shall assemble the Execution I earn in the Death Chamber four (4) days prior to a scheduled execution to prepare and test all appliances and equipment for the scheduled execution
44 Thc state, claiming a privilege under I.C A § 10-7-504(h), has refused to reveal the identities of the various individuals involved in an execution other than the Warden
45 There is no discussion in the protocol of the qualifications 01 training of the Officer in Charge 01 his assistant
46 It appears that the actual lethal injection procedure is carried out entirely by the three Tearns mentioned above
47 The Execution Tcam consists of one (l) Officer in Charge, one (I) Assistant Officer in Charge, and seven (7) members.
48 There is no description of the "IV Tcam" 01 the "Extraction Team" 49 The protocol is silent on how these teams are to be selected, or whether members of these teams shall have any specialized training or qualifications 50 The protocol prescribes the sequence of events surrounding an execution as follows: At the appointed hour, the Warden 01 Assistant Warden and the Extraction Team will remove the inmate from his cell, secure him on the gurney, and take him to a "designated area" in the "death chamber," a room where the inmate is to be killed. 51. IV Technicians will insert a catheter into each arm, attach the tubing, and start an IV consisting of saline solution The IV team will then leave the execution chamber and retull1 to the
11
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holding cell area

52 The physician is to be available in the designated waiting area and able to perform

a cutdown procedure ifthe IV Technicians are unable to find a vein that is adequate enough to insert

the catheters.

53 The physician, in other wOlds, is not present during the catheterization process, but

is available to perfOim a "cutdown," a surgical procedure, if the IV Team, with its indeterminate

background and unspecified training, is unable to successfully place the IV's into the veins in both

of the Plaintiff's arms

54 The protocol is equally silent as to thc physician's qualifications to perform this

function

55 Aftcr the cathetcrization process is completed, the witnesses will be secured, the

closed circuit television CaInera and audio system will be activated, and the Commissioner will be

contacted

56 The Warden then signals the execution to proceed and the injection procedure will

continue until all the chemicals have been injected into the condemned and the person is prcsumed

dead

57 The Execution Manual does not dcscribe the physical configuration of the death

chamber 01 the lethal injcction device

58 The drugs to be used in the lethal injection are as follows, in thc following order and

aInounts:

a

Sodium Pentothal [a1k/a Sodium Ihiopental] (50 cc: 5 graInS diluted by 48

ml of diluent)

12

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b

Saline (50 cc)

c

PancUlonium bromide [a/k/a Pavulon] (50 cc: 5-10 cc vials containing 1 mg

pancuronium bromide)

d

Pancuronium bromide [a/k/a PaHrloni (50 ec: 5-10 cc vials containing 1 mg

pancuronium bromide)

e

Saline (50 cc)

f

Potassium Chloride (50 cc)(injectable solution)

g. Potassium Chloride (50 cc)(injectable solution)

59 The administration of all such drugs is to occur within a span of2-2 5 minutes

Defendants' Procurement Of Drugs For Use Upon Plaintiff

60 To obtain the drugs used to kill Plaintiff, Defendant Bell will request them through

Defendant(s) employed by the Dcpartment of COllections, and such Defendant(s) will seek to secUle

such drugs flom some pharmacy or SOUlce presently unknown to Plaintiff

61 A physician's order will be written by one or more of the Defendant(s) asking for the

dispensing ofthe sodium thiopental, pancuronium bromide, and potassium which Defendants would

intend to administer to Plaintiff to cause his death. It is unclear that such "physician's order" is

actually written by a physician who may prescribe medicine.

62 One or more of the Defendant(s) will then deliver or dispense the drugs to

Defendants, including Defendant Bell, who, following receipt, will, at some point before execution,

prepare the sodiurll thiopental, pancuronium bromide, and potassium chloride for syringes to be used

upon Plaintifl

Anesthesia And Consciousness With Sodium Thiopental

13

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63 Anesthesia is the process of blocking the perception of pain and other sensations,

creating insensibility to pain.

64 Sodium Thiopental is a short acting bar biturate

65. In the Tennessee protocol, its alleged purpose is to cause anesthesia

66 Induction of anesthesia using thiopental occurs quickly, but its effect wears off in a

matter of minutes

67 Sodium thiopental is used as an anesthetic in surgery because it enables an

anesthesiologist to quickly awaken a patient should complications arise

68 There are differing levels of anesthesia, and thus consciousness

69. The human body reacts to various stimuli differs depending upon the level of

anesthesia

70 For example, when a person is administered sodium thiopcntal, a person will continue

to have the following statcs of consciousness at the following sClUm levels of thiopental:

a

0-13 mg/l: Consciousness

b

13-18 mg/l: Loss of purposehrl movement in response to verbal stimulation;

c

23-28 mg/l: Loss of purposeful movemcnt in response to tetanic nerve

stimulation;

d

33-46 mg/l: Loss of purposeful movement in rcsponse to trapezius muscle

squeeze;

e

45-57 mg/l: Loss of movement in response to larangoscopy;

f

63 mg/l >: Loss of movement in response to intubation

See Leonidas Koniaris et ai, Inadequate Anaesthesia In Lethal Injection For Execution, 365 Lancet

14

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1412-1414 (2005) 71 In fact, one study establishes that, upon administration of thiopental, EEG brain
activity peaks at 13.3 mg/I, after which it drops back to normal activity at 312 mg/I, and zero brain waves per second occurs only with serum levels above 50 mg/1. See Buhler et aI, Thiopental Pharmacodynamics, Anesthesiology 77: 226-236 (1992)
72 Sodium thiopental as used in the Tennessee protocol does not adequately anesthetize a person prior to the introduction ofpancuronium bromide and potassium chloride
73 This is confirmed by findings made as a result of the autopsy of Robert Coe, whose serum thiopental levels were 10 mg/I, which as rccent research establishes, is inadequate to establish unconsciousness See Leonidas Konimis et aI, Inadequate 4naelthesia In fethal Injection F'or Execution, 365 Lancet 1412-1414 (2005)
74 As a result, Plaintiff would be inadequately anesthetized under the I ennessee protocol, and as shown infra, would experience a gruesome and honifying death through the painful use of pancUlonium bromide followed by the introduction of potassium chloride
75 The lack of inadequate anesthesia would apparently be even more pronounced in Plaintiff than in Robert Coe, as Mr Cae only weighed 179 5 pounds when he was executed, and Plaintiff weighs significantly more than 200 pounds
Plincuronium Bromide (l'lIvu)on) 76 PancUlonium Bromide, marketed under the name Pavulon, IS a neuromuscular blocking agent whieh causes paralysis of the skeletal musclcs of an individual 77 PancUlonium Bromide does not affect the brain or nervous system, nor does it block the actual reception of nerve impulses in the brain or the passage of such impulses within the brain
15
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78 Pancuronium Bromide does not affect consciousness or the sensation of pain or suffering
79 An individual under the influence of pancuronium bromide, though paralyzed, still has thc ability to think, to be orientcd to ",herc he is, to experience fear or terror, to fCcl pain, and to hear
80. While pancuronium bromide paralyzes the diapluagm to prevent breathing, it does not affect the heart muscle
81 PancUlonium bromide causes death by asphyxiation or suffocation. 82 If an individual is not properly anesthetized when injected with pancuronium bromide, he will consciously experience extreme pain while being completely paralyzed. 83 In this state, the person will undergo the tellorizing and exclUciating experience of suffocation without the ability to move or to express the pain and suffering which he is experiencing as he is being suffocated 84 Because pancuronium bromide paralyzes all skeletal muscles including facial muscles and those used to speak or communicate through noises, an observer cannot detect, fiom outward appearance, any expressron of pain, hOlIor, or suffering experienced because of the use of pancuronium bromide. 85 Moreover, the paralyzing effect ofpanCUI onium bromide also prevents anyexPlession
ofthe pain, hOllO!, or suffering from any othcr source, such as potassium chloride See mfra, '1'159-
67, incorporated by reference 86 Death caused by the use ofpanculOnium bromide is gruesome, honible, and painful The Usc Of Pancuronium Bromide Is Arbitrary,
16
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Unreasonable, Degrading To Human Dignity, And Serves No Legitimate Interest 87 Because pancUionium bromide causes pamlysis, suffocation, and the suffering
attendant to such paralysis and suffocation, in 200 I, Tennessee declared in the "Nonlivestock Humane Death Act" (Tenn Code Ann 44-17-301 et seq) that pancuronium bromide cannot be uscd to euthanize animals, because its usc is not humane
88 Where the use ofpancuronium bromide is not "humane" to use on non-humans, it is arbitrary to claim that its use is "humane" on humans, and its use on humans to cause death violates basic precepts of human dignity
89 The use of pancUionium bromide in execution is arbitrary 90 The use of paneUlonium bromide in execution is umeasonable 91 The use ofpancUlonium bromide in execution serves no legitimate state interest and is not nan owly tailored to any compelling state interest 92 As Chancellor Ellen Hobbs Lyle has explained elsewhcrc: [[[he use of Pavulon is . unnecessary [l]he State [has] failed to demonstrate any reason for its usc I he record is devoid ofplOofthat the Pavulon is needed Thus, the Court concludes that the Stale's use of Pavulon is in legal terms 'arbitrary' Abdur 'Rahman v Sundquist, No 02-2236-III, In The Chancery COUlt For The State Of Tennessee, Twentieth Judicial District, p 13 (June 2, 2003)
Potassium Chloride 93 As used in Tenncssec's execution protocol, potassium chloride is supposed to cause cardiac anest
17
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94 Ihe administration of potassium chloride is extremely painful, bccause it activates all the nerve fibers inside the venous system
95 Because veins are replete with nerve fibers, the administration ofpotassium chloride into the veins creates extreme pain
96 In the absence of adequate anesthesia, the introduction ofpotassium chloride, like the introduction of pancuronium bromide, creates extremc and excruciating pain
97 Under Tennessee's protocol, 200 mEq of potassium chloride are introduced into the body through a vein
98 This method of administering this amount of potassium chloride is inadequate to stop the heart
99 This is confirmed by the autopsy of Robert Coe, which demonstrates that his vitreous potassium was 9 mEq/1 (9mmolll)
100 It actually takes a serum concentration of more than 16 mEq/1 (16mmol/l) of potassium to arrest the heart
101 The failure to arrest Plaintiff's heart would likely be even more pronounced vis-avis Robert Coe, as Plaintiff is significantly larger than Mr Coe, assuming Plaintiffs larger blood volume and body surface area
Death Under fennessce's Lethal Injection Protocol 102 The person being lethally injected under Tennessee's protocol thus actually dies flom the suffocation caused by the paneuronium bromide and the resulting anoxic state, and not flom cardiac arrest due to the administration ofpotassium chloride 103 Because the person being lethally injected under Tennessee's protocol rs not
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adequately anesthetized, he or she experiences the sensation and honor of suffocation from the pancuronium bromide, as well the excruciating pain associated with the introduction of potassium chloride
C. Exhaustion of Remedies 104 Plaintiff has exhausted all available remedies Plaintiff filed an objection to both electrocution and lethal injection with the Commissioncr of COllections which was denied by the Commissioner on August 17, 2006. VI. CLAIMS FOR RELIEF A. Violation of Eighth and Fourteenth Amendments: Cruel and Unusual
Punishment (Electrocution) 105 Plaintiff incorporates paragraphs the preceding paragraphs m their entirety by
refercnce 106 Defendant's acting under color of state law, intend to execute Plaintiff in a manner that will cause unnecessary pain and suffering in the execution of a sentence of dcath, thereby depriving Plainti£f of his rights lmdcr the Eighth and Fowteenth Amendments to the be fiee flOm cruel and unusual punishment in violation of 42 USc. § 1983 B. Violation of Fourteenth Amendment: Substantive Due l>rocess (Electrocution) 107 Plaintiff incorporates the preceding paragraphs in their entirety by reference 108 Defendant's acting under color of state law, intend to cxecute Plaintiff in a manner that "shocks the conscience," causing exccssive burning, tissue-cooking, and mutilation of the body
(at least) thereby depriving Plaintiff of his right to substantive due process under r ourteenth
Amendment
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C. Violation Of Fonrteenth Amendment: Dne Process Of Law (Pancuronium

Bromide)

109 Plaintiff incorporates the preceding paragraphs in their entirety by reference

110 The use ofpancUlonium bromide is arbitrary, unreasonable, and serves no legitimate

or compelling state interest The use of pancuronium bromide shocks the conscience and is

inhumane The use of pancuronium bromide violates Plaintiff's right to duc process onaw under the

Fourtecnth Amendmcnt

III It is well-settled lmder the due process clause of the fourteenth Amendment that a

state cannot act in a way which fails to serve a legitimate state interest. City of Cleburne v. Cleburne

Living Center, 473 US 432, 105 S Ct 3249 (1985) Likewise, when fundamental interests are

involved (such as lite) the state must act in a way that is necessary to promote a compelling state

interest. Troxel v. Granville, 530 US 57, 120 S Ct 2054 (2000)

112 Without question, there is no legitimate intercst in the use of pancuronium bromide

upon Plaintiff or any other human being As Chancellor Ellen Hobbs Lyle has held:

[TJhe use of Pavulon is unnecessary [TJhe State [has] failed to demonstrate

any reason for its use The rceord is devoid of prool that the Pavulon is needed Thus,

the COUlt concludes that

the Statc's use 01 I'avulon is

in legal terms

'arbitrary'

Abdur 'Rahman v Sundquist, No 02-2236-IIl, In I he Chancery COUll For The State Of Tennessee,

Twentieth Judicial District, p 13 (June 2, 2003)

113 Further, use of pancuronium bromide violates substantive due process for the separate

reason fhat its use shocks the conscience See Rochin v. California, 342 US 165 (1952) Without

question, under Tennessee's "Nonlivestock Animal Humane Death Act," pancuronium bromide

20 Case 3:06-cv-00946 Document 1 Filed 10/04/2006 Page 20 of 25

cannot bc used to euthanize a non-livestock animal in lennessee Tenn Code Ann §44-17-301 et seq, including §44-1 7- 303(c)(any substance which "acts as a nemomuscular blocking agent may not be used on any nonlivestock animal for the pmpose of euthanasia."). If paneuronium bromide can't be used to kill a dog or a cat because it is not "humane," it shocks the conscience to think that it can be used in an attempt to kill a human being
D, Violation Of Eighth And Fourteenth Amendments (Pancuronium Bromide) 114 Plaintiff incorporates the preceding paragraphs in their entirety by reference 115. The use of pancmonium bromide is inhumane, violates the dignity of the human pcrson, and is contrary to the evolving standards of decency 116 1he use ofpaneUlonium bromide violates Plaintiirs right to be frce hom cruel and unusual punishment under the Eighth and Fomteenth Amendments 117 The Eighth and Fomteenth Amendments prohibit punishments which do not comport with the evolving standards of decency that mark the progress of a matming society Trop v. Dulles, 356 U S 86 (1959) 118 In 2001, the State of Tennessee declared as inhumane - and illegal - the use of pancmonium bromide or any other nemomuscular blocking agent on nonlivestock animals Tenn Code Ann §44-17-303(c); 44-17-303(j)(criminal sanctions for violation of Humanc Death Act) A fortiori, thc legislative judgmcnt of Tennessee establishes the fundamental baseline concerning the evolving standards of decency applicable to human beings Especially where the Tennessee Legislature passed the Nonlivcstock Humane Death Act in 2001 -aller Defendants' established their protoeol- the very existence of the Act cstablishes an Eighth Amendment violation of the evolving standards of decency
21
Case 3:06-cv-00946 Document 1 Filed 10/04/2006 Page 21 of 25

119 FUlther, where Tennessee has already determined that use ofpanCUI onium bromide to kill animals is not "humane," using such a substance to kill a human being is not humane either It is likewise degrading to humanity itself to allow the Defendants to do what they would intend to do It sends a message that the State can treat human being with the type of contempt and cruelty that is not befitting an animal
E. Violation Of Fourteenth Amendment: Equal Protection (Pancuronium Bromide)
120 Plaintiff incorporates the preceding paragraphs in their entirety by reference. 121 The usc ofpancuronium bromide upon Plaintiffwhi1e its use is legally prohibited for use on animals because it is not "humane," is inhumane, arbitrary, unreasonablc, and serves no legitimate interest, nO! is it nanowly tailored to servc a compelling state interest The use of pancUlonium bromide violates Plaintiffs right to (he equal protection of the laws under the Fomteenth Amendment 122 By procUling and using pancuronium bromide upon Plaintifl, Defendants would invidiously discriminate against Don Johnson: Under Tenn. Code Ann. §44-17-303(h) & §39-14201(3), the State of Tennessee has protected the following animals against the use ofpanCUI onium bromide: any "pet normally maintained in or near the household or households of its owner or owners, other domesticated animal, previously captUled wildlife, an exotic animal, or any other pet, including but not limited to, pet rabbits, a pet chick, duck, or pot bellied pig that is not classified as "livestock" pursuant to this part" Tenn Codc Ann §44-l 7-20 I (3) There is no legitimate basis -let alone a compelling state reason - for Tenncsscc to provide dogs, cats, chicks, ducks, and pot-bellied pigs more protection flam cruelty than it would Don Johnson, who is a human being who retains a
22
Case 3:06-cv-00946 Document 1 Filed 10/04/2006 Page 22 of 25

fundamental right to life. This classification is arbitrary, umeasonable, and serves no legitimate interest, let alone a compelling state interest Defendants' procurement and use of pancuronium bromide is therefore unconstitutional
F.. Violation Of Eighth and Fourteenth Amendments: Cruel And Unusual Punishment
123 Plaintiff incorporates the preceding paragraphs in their entirety by referencc 124 Defendants' usc o[ sodium thiopental, pancUlonium bromide, and potassium chloride under the I ennessee protocol causes unnecessary pain and suffering and docs not conform with evolving standards of decency. 125 Defendants' use of the protocol violates the dignity of the human person and Plaintiff s right to be free from cruel and unusual purlishment Ulldcr the Eighth and Fourteenth Amendments G" Violation Of Eighth and Fourteenth Amendments: Cruel And Unusual
Punishment 126 Plaintiff incorporates the preceding paragraphs in their entirety by reference 127 DefEmdants' inadequate procedUles in the use of sodium thiopental, pancUlonium bromide, and potassium chloride under the Tennessee protocol creates the risk of unnecessary pain and suffering and does not conform with evolving standards of decency 128 Defendants' use of the protocol violates the dignity of the human person and Plaintiff's right to be free from cruel and Ullusual punishment under the Eighth and Fourteenth Amendments VII. PRAYER FOR RELIEF
23
Case 3:06-cv-00946 Document 1 Filed 10/04/2006 Page 23 of 25

WHEREFORE, based on thc foregoing complaint, incorporated herein by reference, this Court should do the following:
129 Enter an order granting a declmatory judgment to Plaintiff declming unconstitutional the use of the I ennessee electric chair and prohibiting Defendant's from using the electric chair to execute Plaintiff
130 Entcr an order granting a declmatory judgment to Plaintiff declming unconstitutional the use of panCUI onium bromide by Defendants under the circumstances, and prohibiting Defendants from using, seeking to obtain, ordering, writing a prescription, writing a physician's order, prcscribing, dispensing, or in any other manner transferring to Defendants Bell or any other Defendants involvcd in the execution proecss paneuronium bromide in any (arm whatsoever
131 Enter an order granting a declmatory judgment to Plaintiff declaring unconstitutional the use of pancuronium bromide by Deftmdants under the circumstances, and enjoin Defendants fiom seeking to execute, or executing, Plaintiff using the above-described protocol which employs pancUlonium bromide.
132 Enter an order granting a declmatoryjudgment to Plaintiff declming unconstitutional the execution protocol thc statc has used to execute prisoners because it utilizes inadequate anesthesia through the use of sodium thiopental, and grant an injunction against the use upon Plaintiff of this execution protocol which uses sodium thiopental
133 Enter an ordcr granting a declaratory judgment to Plaintiff declming unconstitutional the execution protocol, and grant an injunction against the use of the protocol upon Plaintiff
134 Grant further relief that this COUlt finds necessary and just
24
Case 3:06-cv-00946 Document 1 Filed 10/04/2006 Page 24 of 25

Respectfully submitted, Paul R Bottei Kelley J Berny Christopher M Minton Grctchen L Swift Office of the f edcral Public Defender Middle District of Tennessee 810 BlOadway, Suite 200 Nashville, Tennessee 3 7203 (615) 736-5047 FAX (615)736-5265
By iet&'ff'Jiiur
CERTIFICATE OF SERVICE I certify that a copy ofthc foregoing has been served upon the Defendants Little and Bell by delivering a copy to Alice Lustre, Assistant Attorney General, 425 Fifth Avcnuc North, Nashville, Tennessee 37243 via facsimile this 41h day of October, 2006
25 Case 3:06-cv-00946 Document 1 Filed 10/04/2006 Page 25 of 25

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DON JOHNSON,

)

)

Plaintiff,

)

)

vs.

)

)

GEORGE LITTLE, in his official

)

capacity as Tennessee’s Commissioner

)

of Correction;

)

)

RICKY BELL, in his official capacity as )

Warden, Riverbend Maximum Security )

Institution,

)

)

JOHN DOE EXECUTIONERS 1-100,

)

)

)

Defendants.

)

No. 3:06-0946 JUDGE CAMPBELL

______________________________________________________________________________ MOTION TO DISMISS
OF DEFENDANTS LITTLE AND BELL ______________________________________________________________________________
Defendants George Little and Ricky Bell, appearing in their official capacities only, move, pursuant to Fed. R. Civ. P. 12(b) (6), for this Court to dismiss this case for failure to state a claim for which relief can be granted.
The defendants’ motion is further based upon the following; 1. The plaintiff has been dilatory in filing his complaint seeking equitable relief; 2. The statute of limitations bars the plaintiff’s action; 3. The plaintiff has waived his constitutional challenge to electrocution by
Case 3:06-cv-00946 Document 6 Filed 10/10/2006 Page 1 of 3

affirmatively electing electrocution, and electrocution does not constitute cruel and unusual punishment;
4. The plaintiff’s challenge to Tennessee’s lethal injection protocol is moot; 5. The plaintiff’s has failed to state a claim for violation of the equal protection clause. In support of this motion, the defendants rely upon the memorandum of law filed contemporaneously herewith.
Respectfully submitted, MICHAEL E. MOORE Acting Attorney General
s/Mark A. Hudson MARK A. HUDSON, BPR #12124 Senior Counsel Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 741-7401
s/Martha A. Campbell MARTHA A. CAMPBELL, BPR #14022 Associate Deputy Attorney General Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 532-2558
2 Case 3:06-cv-00946 Document 6 Filed 10/10/2006 Page 2 of 3

CERTIFICATE OF SERVICE
I hereby certify that on October 10, 2006, a copy of the foregoing motion was filed electronically. Notice of this filing will be sent to the parties listed below by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt or by regular U.S. mail. Parties may access this filing through the Court’s electronic filing system.
Paul R. Bottei Kelley J. Henry Christopher M. Minton Gretchen I. Swift Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, TN 37203
s/Mark A. Hudson MARK A. HUDSON, BPR #12124 Senior Counsel Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 741-7401
3 Case 3:06-cv-00946 Document 6 Filed 10/10/2006 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DON JOHNSON,

)

)

Plaintiff,

)

)

vs.

)

)

GEORGE LITTLE, in his official

)

capacity as Tennessee’s Commissioner

)

of Correction;

)

)

RICKY BELL, in his official capacity as )

Warden, Riverbend Maximum Security )

Institution,

)

)

JOHN DOE EXECUTIONERS 1-100,

)

)

Defendants.

)

No. 3:06-0946 JUDGE CAMPBELL

______________________________________________________________________________

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
OF DEFENDANTS LITTLE AND BELL ______________________________________________________________________________

Defendants George Little and Ricky Bell, appearing in their official capacities

only, have moved, pursuant to Fed. R. Civ. P. 12(b)(6), for this Court to dismiss this case for

failure to state a claim for which relief can be granted.

The defendants submit the following in support of this motion.

PRELIMINARY STATEMENT

The plaintiff in this action is a death-sentenced inmate residing at Riverbend

Maximum Security Institution, (Riverbend), in Nashville, Davidson County, Tennessee.

(Complaint, ¶ 2). The defendants in this action are George Little, Commissioner of the

Tennessee Department of Correction (TDOC), in his official capacity, and Ricky Bell, Warden

Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 1 of 14

of Riverbend, in his official capacity. (Complaint, ¶¶ 3-4). The plaintiff also sues John Doe Executioners 1-100, who the plaintiff alleges are employed by the TDOC. The plaintiff also alleges that the defendants refuse to reveal their identity. (Complaint, ¶ 5).
The plaintiff alleges that he has been on death row since 1985. He alleges that, since he was sentenced to death prior to January 1, 2000, pursuant to Tenn. Code Ann. § 40-23114, defendant Bell or his agent must give him the option to select either lethal injection or electrocution as his method of execution. If the death-sentenced inmate fails to make a choice, Tenn. Code Ann. § 40-23-114 mandates that he will be executed by lethal injection. (Complaint, ¶¶ 8-9).
The plaintiff contends that on June 20, 2006, the Tennessee Supreme Court set his execution for October 25, 2006. On June 1, 2006, the plaintiff, through counsel, sent a letter to defendant Little objecting to both methods of execution on the grounds that they violate the Eighth and Fourteenth Amendments to the United States Constitution. He also sought information about the two methods, including a request to have an independent expert test the electric chair. He alleges that defendant Little overruled his objections and declined to provide him with additional information. (Complaint, ¶¶ 10-11). He alleges that on or about September 19, 2006, he learned, through counsel, that the primary engineer of the Tennessee electric chair stated that an execution in it would be a “torture session.” The plaintiff renewed his objection citing this statement. (Complaint, ¶ 12).
The plaintiff alleges that on September 28, 2006, defendant Bell presented him with an “Affidavit Concerning Method of Execution,” which he had no choice but to sign. He placed a checkmark by, “I waive the right to have my execution carried out by lethal injection and choose to be executed by electrocution.” The plaintiff’s counsel attached a Notice of Objection to the waiver, the body of which is set out in the complaint. By doing so, the plaintiff
2 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 2 of 14

contends that he expressly informed the defendants that he does not consent to “be tortured” by any method of execution. (Complaint, ¶¶ 14-19).
The plaintiff sets forth his allegations objecting to the use of the electric chair as cruel and unusual punishment on pages 7 through 10 of the complaint. (Complaint, ¶¶ 20-39). The plaintiff sets forth his objections to the lethal injection protocol, the procurement of drugs for the lethal injection protocol, and the drugs used during the lethal injection protocol on pages 10 through 19 of the complaint. (Complaint, ¶¶ 40-104). The plaintiff contends that he has exhausted his administrative remedies as to electrocution and lethal injection. (Complaint, ¶ 104).
The plaintiff contends that his electrocution would violate the Eighth and Fourteenth Amendments as cruel and unusual punishment and would violate substantive due process. (Complaint, ¶¶ 105-108). He contends that the use of pancuronium bromide violates substantive due process. (Complaint, ¶¶ 109-113). He contends that the use of pancuronium bromide violates the Eighth and Fourteenth Amendments as cruel and unusual punishment. (Complaint, ¶¶ 114-119). He contends that the use of pancuronium bromide violates the Fourteenth Amendment by denying him equal protection. (Complaint, ¶¶ 120-122). He contends that the use of sodium thiopental, pancuronium bromide, and potassium chloride under the lethal injection protocol violates the Eighth and Fourteenth Amendments as cruel and unusual punishment. (Complaint, ¶¶ 123-125). He contends that inadequate procedures in the lethal injection protocol violate the Eighth and Fourteenth Amendments as cruel and unusual punishment. (Complaint, ¶¶ 126-128).
The plaintiff prays for an order declaring the use of the electric chair unconstitutional and enjoining its use; an order declaring the use of pancuronium bromide unconstitutional and enjoining its use; an order declaring the lethal injection protocol
3 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 3 of 14

unconstitutional as to the use of sodium thiopental and enjoining its use; an order declaring the

lethal injection protocol unconstitutional and enjoining its use; and for other relief as the Court

finds just. (Complaint, ¶¶ 129-134).

ARGUMENTS

I.

THE PLAINTIFF HAS BEEN DILATORY IN FILING HIS COMPLAINT

SEEKING EQUITABLE RELIEF.

The plaintiff filed his complaint on October 4, 2006 — a mere twenty-one days

prior to his scheduled execution, and more than two years after the Supreme Court denied the

plaintiff’s petition for writ of certiorari on his federal habeas corpus case. See Johnson v. Bell,

344 F.3d 567 (6th Cir. 2003), cert. denied, 541 U.S. 1010, 124 S.Ct. 2074, 158 L.Ed.2d 621

(2004) (denying certiorari on April 26, 2004). The plaintiff could have, and should have,

presented his challenges to the method of execution well before now.

Delays in bringing challenges to execution protocols are inexcusable. In

McQueen v. Patton, 118 F.3d 460, 464 (6th Cir. 1997), the Sixth Circuit addressed the equity of

allowing a dilatory challenge:

Even were we to consider the merits of McQueen's claim, we would not permit his claim that death by electrocution constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Petitioner has known of the possibility of execution for over fifteen years. It has been ten years since a Kentucky governor first signed a death warrant for his electrocution. The legal bases of such a challenge have been apparent for many years. Indeed, petitioner's claims on the merits are replete with supporting arguments based on events and reasoning from every decade from the 1910s to the 1990s, even discounting the material cited to "Startling Detective" and "News of the Weird" (Memo in Support of Motion for Temporary Restraining Order and Preliminary Injunction, at 31, n.87 and App. 2, n.6.). Even though, in petitioner's mind, every year or every day may bring new support for his arguments, the claims themselves have long been available, and have needlessly and inexcusably been withheld. Thus, equity would not permit the consideration of this claim for that reason alone, even if jurisdiction were otherwise

4 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 4 of 14

proper.
(Citations omitted). Likewise, in Hicks v. Taft, 431 F.3d 916 (6th Cir. 2005), the Court
concluded that a stay of execution was not warranted where an inmate, on the eve of his
execution, moved to intervene in another inmate’s challenge to the constitutionality of Ohio’s
lethal injection protocol. See also Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006)
(affirming dismissal of § 1983 action challenging lethal injection procedures due to plaintiff’s
dilatory filing, i.e., five days before the execution); accord Kincy v. Livingston, 2006 WL
775126 (5th Cir. Mar. 27, 2006) (copy attached) (twenty-seven days before the execution);
Hughes v. Johnson, 2006 WL 637906 (5th Cir. Mar. 14, 2006) (copy attached) (fourteen days
before the execution).
More recently, in Alley v. Little, 181 Fed. Appx. 509 (6th Cir. 2006), cert. denied,
126 S.Ct. 2975 (2006) (copy attached), the Sixth Circuit Court of Appeals vacated an injunction
and stay of execution entered by the United States District Court barring the execution of Sedley
Alley, a condemned Tennessee inmate. Among other things, the Sixth Circuit based its decision
on Alley’s unnecessary delay in bringing his challenge to the lethal injection protocol.
Fourth, we take note of the unnecessary delay with which Alley brought his challenge to Tennessee’s lethal injection protocol. He was on notice as to both the particulars of the protocol and the availability of making a claim such as the one he now raises for several years before he filed his last minute complaint. Another Tennessee death row inmate, Abu-Ali Abdur’Rahman, petitioned the state Commissioner of Correction to declare the lethal injection protocol unconstitutional in April 2002. Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 299-300 (Tenn. 2005). Alley’s execution date was set on January 16, 2004, for June 3rd of that year, following the Supreme Court’s denial of a writ of certiorari to review our court’s decision not to grant habeas relief. Alley v. Bell, 540 U.S. 839, 124 S.Ct. 99, 157 L.Ed.2d 72 (2003); State v. Alley, No. M1991-00019-SC-DPE-DD (Tenn. Jan. 16, 2004). Lethal injection has been the only method of execution in Tennessee since 2000 for all death row inmates save those who affirmatively express a preference for
5 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 5 of 14

electrocution. Tenn. Code Ann. § 40-23-114. Alley had ample time in which to express such a preference and/or file his current grievance. Instead he waited until thirty-six days before his currently scheduled execution date. Id. at 513.1 “[W]aiting to file such a challenge [to the method of execution] just days before a scheduled execution constitutes unnecessary delay.” Smith, 440 F.3d at 263 (citing Harris v. Johnson, 376 F.3d 414, 417-419 (5th Cir. 2004)). “‘Given the State’s significant interest in enforcing its criminal judgments, there is a strong equitable presumption against’ last-minute equitable requests.” White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005) (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)). “This presumption occurs because the inmate could have brought the action at an earlier time, which would have allowed the court to consider the merits without having to utilize last-minute equitable remedies.” Id. Here, plaintiff could easily have filed his lawsuit years ago; “[b]y waiting as long as he did, [plaintiff] leaves little doubt that the real purpose behind his claim is to seek delay of his execution. . . . ” Harris, 376 F.3d at 418. A Court of equity must not countenance such dilatory tactics; particularly so here, since at this juncture, with plaintiff having long since been denied federal habeas corpus relief from his conviction and sentence, “the State’s interests in finality are all but paramount.” Calderon v. Thompson, 523 U.S. 538, 557 (1998). “Finality serves . . . to preserve the federal balance. . . . [The] federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot

1

After the Sixth Circuit vacated the stay the Governor of Tennessee granted Alley

a fifteen-day reprieve on unrelated grounds. On June 2, 2006, upon the expiration of that

reprieve, the Tennessee Supreme Court re-set the execution of Alley’s sentence for June 28,

2006. State v. Alley, No. M1991-00019-SC-DPE-DD (Tenn. June 2, 2006). On June 14, 2006,

the district court dismissed Alley’s complaint on the basis of the Sixth Circuit’s prior holding

that he had unnecessarily delayed bringing his claims. Alley v. Little, 2006 WL 1697207 (M.D.

Tenn), affirmed, 2006 WL 1736345 (6th Cir. 2006), cert. denied, 126 S.Ct. 2975 (2006).

6 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 6 of 14

enforce them.’" Id., 523 U.S. at 556 (quoting McCleskey v. Zant, 499 U.S. 467, 491 (1991)) .

The plaintiff had abundant opportunities to make his challenges well before

October 4, 2006. The plaintiff has been sentenced to death since 1985. By amendments to Tenn.

Code Ann. § 40-23-114 that occurred in 1998 and 2000, the plaintiff was given the choice of

death by lethal injection. At a minimum, he could have filed his action on August 10, 2004,

when the Tennessee Supreme Court first set the execution of his sentence for November 16,

2004. See State v. Donnie Johnson, No. M1987-00072-SC-DPE-DD (Tenn. June 20, 2006)

(order setting date of execution) (copy attached as Exhibit A). Furthermore, the current

execution date was set on June 20, 2006; thus he waited over three months from that date to file

his action. Id.

The plaintiff’s complaint is due to be dismissed on the basis of unnecessary delay.

II.

THE STATUTE OF LIMITATIONS BARS THE PLAINTIFF’S ACTION.

There is no specific statute of limitations for actions arising under 42 U.S.C. §

1983. When Congress has not established a time limitation for a federal cause of action, the

settled practice by federal courts has been to adopt a local time limitation if it is not inconsistent

with the federal law or policy to do so. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85

L.Ed.2d 254 (1985). More specifically, federal courts should look to the most analogous state

statute of limitations to apply to a claim for personal injury under 42 U.S.C. § 1983. Board of

Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980).

Tenn. Code Ann. § 28-3-104(3) provides that civil actions for compensatory or

punitive damages, or both, under the federal civil rights statutes must be brought within one year

after the cause of action accrues. This statutory provision has been held by the Sixth Circuit to

be the applicable statute of limitation with respect to section 1983 actions brought in the State of

7 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 7 of 14

Tennessee. Berndt v. State of Tennessee, 796 F.2d 879 (6th Cir. 1986).2 Therefore, the plaintiff in this case is limited to one year after the accrual of his claim within which to bring an action under 42 U.S.C. § 1983.
Although the duration of the statute of limitations for actions under 42 U.S.C. § 1983 is governed by state law, federal law governs when the statute begins to run. Sharpe v. Cureton, 319 F.2d 259, 266 (6th Cir. 2003). Under federal law, the “discovery rule” applies to establish the date on which the statute of limitations begins to run, i.e., when the plaintiff knew or in the exercise of due diligence should have known of the injury that forms the basis of his or her action. Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984). The test is an objective one. The Court must determine “what event should have alerted the typical lay person to protect his or her rights.” Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir. 1991).
According to the plaintiff’s own complaint, he has been a death-row inmate in Tennessee since October of 1985. (Complaint, ¶ 2). On May 18, 1998, the Tennessee General Assembly amended Tenn. Code Ann. § 40-23-114 to provide that an inmate sentenced to death by electrocution could be executed by lethal injection if the inmate waived his right to die by electrocution and affirmatively chose to die by lethal injection. Chap. 982 of the Public Acts of 1998. On March 30, 2000, the Tennessee General Assembly amended Tenn. Code Ann. § 4023-114 to provide that an inmate sentenced to death by electrocution would be executed by lethal injection unless the inmate affirmatively chose to die by electrocution. Chap. 214 of the Public Acts of 2000. Thus, the plaintiff knew or in the exercise of due diligence should have known about the amendments to Tenn. Code Ann. § 40-23-114 as early as May of 1998 and March of

2

This one year statute of limitation has been extended to suits for injunctive relief

under 42 U.S.C. § 1983. See Cox v. Shelby State Community College, 48 Fed.Appx. 500, 507

(6th Cir. 2002) (copy attached).

8 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 8 of 14

2000.

The plaintiff’s complaint herein was filed on October 4, 2006. The plaintiff’s

complaint is barred by the statute of limitations.

III.

THE PLAINTIFF HAS WAIVED HIS CONSTITUTIONAL CLAIMS BY

AFFIRMATIVELY ELECTING ELECTROCUTION, AND

ELECTROCUTION DOES NOT CONSTITUTE CRUEL AND UNUSUAL

PUNISHMENT.

The plaintiff’s choice of electrocution constitutes a waiver of any claim that such

a method of execution is unconstitutional. Stewart v. LaGrand, 526 U.S. 115, 119 S.Ct. 1018,

143 L.Ed.2d 196 (1999). In that case, the Supreme Court held that a condemned inmate who

chose lethal gas as his method of execution rather than lethal injection waived his claim that

execution by lethal gas was unconstitutional. Id.

The plaintiff’s attorney has signed a Notice of Objection asserting that the

plaintiff’s choice of electrocution was not “free, knowing, voluntary, or intelligent.” (Complaint,

¶ 18). However, under the authority of White v. Gerbitz, 860 F.2d 661 (6th Cir. 1988), and

Leaman v. Ohio Department of Mental Retardation & Developmental Disabilities, 825 F.2d 946

(6th Cir. 1987), the fact that the plaintiff was represented by competent counsel when he chose

electrocution demonstrates that his choice was free, knowing, voluntary, and intelligent.

If the plaintiff had done nothing, the method of execution would have been death

by lethal injection. This method of execution has been held constitutional by the Tennessee

Supreme Court. See Abdur’Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005), cert. denied,

126 S.Ct. 2288, 164 L.Ed.2d 813 (2006). Additionally, the Sixth Circuit Court of Appeals

declined to find the lethal injection protocol unconstitutional in Alley v. Little, 181 Fed.Appx.

509, 512 (6th. Cir. 2006), cert. denied, 126 S.Ct. 2795 (2006) (“No federal court has found the

lethal injection protocol as such to be unconstitutional. We will not do so today.”).

9 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 9 of 14

Additionally, the Sixth Circuit has declined to hold that electrocution is cruel and
unusual punishment. McQueen v. Patton, 118 F.3d 460, 464 (6th Cir. 1997). As recently as
2001, the Sixth Circuit held electrocution to be constitutional in Buell v. Mitchell, 274 F.3d 337,
370 (6th Cir. 2001). The Court stated:
Finally, Buell asserts that death by electrocution , as required under Ohio Rev. Code § 2949.22, violates the constitutional prohibition of cruel and unusual punishment. Courts have consistently upheld the constitutionality of the imposition of the death penalty in general, see Gregg, 428 U.S. at 187, 96 S.Ct. 2909, and by electrocution in particular. See In re Kemmler, 136 U.S. 436, 449, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Sullivan v. Dugger, 721 F.2d 719, 720 (11th Cir. 1983); Spinkellink v. Wainwright, 578 F.2d 582, 616 (5th Cir. 1978). This court recently concluded that a petitioner attacking the constitutionality of death by electrocution failed even to present an indication of a likelihood of success on the merits. See In re Sapp, 118 F.3d 460, 464 (6th Cir. 1997). Moreover, we note that the Ohio statute allows Buell the option of choosing between death by electrocution or death by lethal injection, a form of execution that Buell does not argue is cruel and unusual. Ohio Rev. Code § 2949.22(B); see also Smith v. Anderson, 104 F. Supp.2d 773,848 (S.D. Ohio 2000). Electrocution has yet to be found cruel and unusual punishment by any American court. See Sapp, 118 F.3d at 464. We decline to be the first.
Id.
Accordingly, the plaintiff waived his constitutional claim when he chose
electrocution. Even if he had not waived his claim, electrocution has been upheld as
constitutional by the Sixth Circuit.
10 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 10 of 14

IV.

PLAINTIFF’S CHALLENGE TO TENNESSEE’S LETHAL INJECTION

PROTOCOL IS MOOT.

The plaintiff has filed a suit challenging, among other things, Tennessee’s lethal

injection protocol. However, on September 28, 2006, the plaintiff chose electrocution as the

method of execution. Consequently, his challenge to the Tennessee lethal injection protocol is

hypothetical and does not present a justiciable case or controversy.

Federal Courts are limited by Art. III of the Constitution to deciding cases and

controversies. DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).

For this Court to have jurisdiction over the plaintiff’s claims for injunctive relief, an actual

controversy must exist at all stages of the litigation. Id. at 319. Where intervening events occur

during the pendency of a lawsuit which render injunctive relief moot, those claims for relief must

be dismissed for lack of subject matter jurisdiction. Mosley v. Hairston, 920 F.2d 409, 414 (6th

Cir. 1990), (enactment of the Family Support Act of 1998 rendered moot the plaintiff’s

injunctive claims for compliance with the former version of the statute); see also Univ. of Texas

v. Camenisch, 451 U.S. 390, 396, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981), (when injunctive

aspects of a case become moot during the course of an appeal from a preliminary injunction,

those issues cannot be resolved on appeal). Since the plaintiff has chosen electrocution, his

challenge to the lethal injection protocol is irrelevant. See, e.g. Bell v. True, 413 F.Supp.2d 657

at 737 (W.D. Va. 2006), (“For Bell’s lethal injection claim to be relevant, he would first have to

choose it over electrocution, the constitutionality of which has been established by existing

precedent.”).

11 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 11 of 14

V.

PLAINTIFF HAS FAILED TO STATE A CLAIM FOR VIOLATION OF

THE EQUAL PROTECTION CLAUSE.

The Equal Protection Clause of the Fourteenth Amendment is “essentially a

direction that all persons similarly situated be treated alike.” City of Cleburne v. Cleburne

Living Center, 473 U.S. 432, 439 (1985). The Equal Protection Clause is violated when a state

actor intentionally discriminates against a member of a protected class because of the person’s

membership in such class. Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 341 (6th Cir.

1990).

In this case the plaintiff asserts an equal protection claim because he is subject to

execution through the use of pancuronium bromide while under the Nonlivestock Animal

Humane Death Act, Tenn. Code Ann. §§ 44-17-301 et seq., the State protects pets including

dogs, cats, rabbits, chicks, ducks, and pot-bellied pigs from the use of pancuronium bromide

when being euthanized. This claim is hypothetical, as previously discussed; but even if it were

not, the claim should fail. The Equal Protection Clause prohibits disparate treatment of those

similarly situated. The plaintiff is a human being and, therefore, is not similarly situated with a

pet. Also, execution by lethal injection is not by definition equivalent to “euthanasia” as that

word is commonly applied to human beings. The circumstances under which pets may be

euthanized and those attendant to the execution of a human being are so wholly different as to

render any comparison pointless. See Darick Demorris Walker v. Gene M. Johnson, et al., No.

05-0934, p.11 memorandum, (U.S.D.C., W.D., Va., 2006) (copy of order and memorandum

attached), (“Finally, any discussion by Plaintiff about the standards of animal euthanasia has no

bearing on death penalty matters and is rejected by this Court.”).

12 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 12 of 14

CONCLUSION In light of the above, defendants Little and Bell, appearing in their official capacity only, move that the plaintiff’s complaint be dismissed for failure to state a claim.
Respectfully submitted, MICHAEL E. MOORE Acting Attorney General
s/Mark A. Hudson MARK A. HUDSON, BPR #12124 Senior Counsel Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 741-7401
s/Martha A. Campbell MARTHA A. CAMPBELL, BPR #14022 Associate Deputy Attorney General Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 532-2558
13 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 13 of 14

CERTIFICATE OF SERVICE
I hereby certify that on October 10, 2006, a copy of the foregoing memorandum was filed electronically. Notice of this filing will be sent to the parties listed below by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt or by regular U.S. mail. Parties may access this filing through the Court’s electronic filing system.
Paul R. Bottei Kelley J. Henry Christopher M. Minton Gretchen I. Swift Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, TN 37203
s/Mark A. Hudson MARK A. HUDSON, BPR #12124 Senior Counsel Office of the Attorney General P. O. Box 20207 Nashville, TN 37202-0207 (615) 741-7401
14 Case 3:06-cv-00946 Document 7-1 Filed 10/10/2006 Page 14 of 14

 
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DON JOHNSON,

)

)

Plaintiff,

)

)

)

v

)

)

)

GEORGE LITTLE, in his official capacity as)

Tennessee's Commissioner of

)

Correction;

)

)

RICKY BELL, in his official capacity as )

Warden, Riverbend Maximum

)

Security Institution;

)

)

JOHN DOE EXECUTIONERS 1-100;

)

)

Defendants

)

No. 3:06-0946 JUDGE CAMPBELL Death Penalty Case Execution Date: Oct. 25, 2006, 1:00 a.m.

MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT

Pursuant to 42 U.S C.. §1983, Plaintiff Don Johnson has filed a complaint seeking

injunctive relief prohibiting Defendants from executing him on October 25, 2006

employing their proposed electrocution or their proposed lethal injection protocol

R.1:Complaint. Plaintiff and Defendants agree that Mr. Johnson's lethal injection claim

is not currently justiciable. R.7, Memorandum in Support of Motion to Dismiss; R.13,

Response in Opposition to Motion to Dismiss (filed contemporaenously}. Given that the

State of Tennessee intends to subject Mr. Johnson to death by electrocution on October

25, 2006, which will, in all likelihood, submit Mr. Johnson to excruciating pain and

torture, Mr Johnson moves this Court for a preliminary injunction enjoining the State

of Tennessee from executing Mr.. Johnson in the Tennessee electric chair until this Court

Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 1 of 13

can conduct further proceedings in this case. In support of his motion, Mr Johnson states the following:
1 Were Don Johnson executed using the Tennessee Electric Chair employed by the Defendants, he would experience an excruciating and horrifying death. Dr John P Wikswo,' an expert on the use of the electric chair, who has reviewed numerous autopsies of individuals who have been electrocuted, opines that:
a. Execution by electrocution is extremely painful, because of the direct stimulation of nerves and pain receptors, the direct and indirect contraction of virtually all of the skeletal muscles in the body, the contraction of intestinal and other smooth muscle, and the intense pain associated with electrical burns.
b. There is no scientific evidence suggesting that the intense electrical currents during execution by electrocution induce instantaneous anesthesia or analgesia, and/or unconsciousness.. There is ample evidence from the medical literature on high-voltage (greater than 1,000 volts) electrical accidents that individuals can maintain consciousness during strong electrical shocks, even shocks to the head that produce severe tissue damage.
c. There is ample evidence, from judicial electrocutions,
1An expert on the use of the electric chair, Dr. Wikswo is an experimental biophysicist, electrophysiologist, and biomedical engineer, who is employed at Vanderbilt University in the positions of Gordon A Cain University Professor, the AB Learned Professor of Living State Physics, the Director of the Vanderbilt Institute for Integrative Biosystems Research and Education, and Professor of Biomedical Engineering, Molecular Physiology & Biophysics. See Exhibit 1, Curriculum Vitae of Dr. John P Wikswo, Ph.D.
2
Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 2 of 13

electrical accidents, and fibrillation research, that at the voltages utilized in judicial execution, the heart will not reliably enter into fibrillation and hence can remain capable of pumping blood through the body after the end of the electrical shock used in judicial electrocution
d.. Death is caused primarily by suffocation due to paralysis of the respiratory muscles and respiratory arrest, and by thermal heating of the brain
e Death by electrocution is not instantaneous. f. The minimum voltage and current and duration of this voltage and current required to execute a particular individual by electrocution are unknown, and will vary substantially from individual to individuaL See Exhibit 2, Declaration of Dr.. John Wikswo, Ph.D.., p. 2. 2. The Tennessee Electric Chair is defective.. The Tennessee Electric Chair was designed by Fred Leuchter.. On or Around November 29, 1989, Fred A Leutcher, Jr., installed the Fred A Leutcher Associates, Inc, Modular Electrocution System (Electric Chair) at the Riverbend Maximum Security Institution (RMSI}. See Exhibit 3, Fred A Leuchter Associates Equipment Certification 3 On or around April16, 1994, MichaelS Morse visited the RMSI and performed tests on the Electric Chair. Morse opined that the Electric Chair did not deliver an adequate current and did not have the capacity to function with a typical load for an execution. Morse made fourteen specific recommendations for modifications to the Electric Chair. See Exhibit 4, April18, 1994 Letter from MichaelS Morse.
3
Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 3 of 13

4 On or around April 25, 1994, Jay Wiechert visited the RMSI and examined the Electric Chair Wiechert opined that the Electric Chair did not function properly. Wiechert made seven specific recommendations for modifications to the Electric Chair See Exhibit 5, April 27, 1994 Letter from Jay Wiechert.
5 Prior to May 1, 1994, technical personnel at the RMSI made some, but not all, of the modifications Morse and Wiechert suggested See Id. at p.2
6.. On April 23, 1996, JVM Industries, the successor to Fred A Leuchter, Associates, Inc, wrote the RMSI Associate Warden for Administration JVM informed that it had become aware of the modifications made to the Electric Chair.2 JVM wrote that the modifications raised the specter of a "brain dead vegetable at the conclusion of the execution procedure", and said that if the modifications remained in place the Electric Chair was an "instrument of torture. " See Exhibit 7, April 23, 1996 Letter from JVM Industries.
7 On September 14, 2006, a Nashville, Tennessee, television news program reported that Commissioner Little has acknowledged that, "In some other states, they haven't followed the proper procedures, and unfortunately they have ended up having some very terrible results with the executions. " When asked whether that was his worst fear, Commissioner Little responded, "Well, yes " See http://www.newschannel5.com/Global!story.asp?s=5419521. Last checked 10/3/06.
2It is unclear to Mr. Johnson what modifications have been made to Tennessee's electric chair to date While Tennessee's "Execution Manual" does include directives regarding the use of the electric chair, they are general and do not include specifics regarding the innerworkings of the chair. See Exhibit 6, Tennessee Department of Corrections Execution Manual for Electrocution.
4
Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 4 of 13

8.. In that same interview, Commissioner Little admitted that "Well, until you actually have somebody in the chair you can't have that 100 percent certainty. " Id.
9. On or about September 15, 2006, Fred Leuchter, wrote to Tennessee Governor Phil Bredesen imploring him not to use the Tennessee Electric Chair. Leuchter warned Governor Bredesen that "It's tantamount to somebody being burned at the stake. " See Exhibit 8, Builder ofState's Electric Chair Calls it a Torture Device, The Tennessean, September 16, 2006, p. uA
10. Jay Wiechert, the engineer who has modified the electric chair that Leuchter built, has been involved in botched electrocutions in the State of Florida.. See http://www.newschannel5.com/Global/story.asp?s=5419521 (Last checked 10/3/06}.
11. If the Tennessee electric chair is used to kill Donnie Johnson, Mr Johnson will be burned excessively, traumatized by a process of death where human and mechanical mistakes have resulted in prisoners receiving insufficient electrocution to kill them upon the first attempt, and he will face an unnecessary risk of pain and suffering .
12 The execution of Alpha Otis Odell Stephens in Georgia is but one example of a "botched" electrocution. Dick Pettys of the Associated Press described the Stephens execution: 3
Seconds after a mask was placed over [Stephens's] head, the first jolt was applied, causing his body to snap forward and his fists to clench. His body slumped when the current stopped two minutes later, but shortly afterward, witnesses saw him struggle to breathe. During the required six minutes
3Audio recordings of Botched executions in Georgia can be accessed at
http:ffwww soundportraits .org/on-air/execution_tapes Last checked 10/4/o6.
5
Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 5 of 13

in which the body was allowed to cool before doctors could examine it, Stephens took about 23 breaths. At 12:26 am, two doctors examined Stephens and said he was alive . At the secondjolt, administered at 12:28 a.m., Stephens again snapped upright. The charge was discontinued at 12:30 am , and at 12:36 a.m., he was pronounced dead.
See http:/fwww soundportraits .org/on-air/execution_tapes/botched_execution. php3
(last checked 10/18/06}. 13 The State of Alabama has also had multiple problems with its electric
chair, including mutilation, bums, and botched executions. The history of Alabama's executions establishes a pattern of cruel, torturous, painful, and protracted executions.
a.. During Horace Dunkins's execution in Alabama, the prison warden activated the electric chair sometime shortly after midnight on July 13, 1989 Eyewitnesses said they observed Mr Dunkins's right hand tense and his left arm jerk upward against the restraints. It quickly became apparent that Mr. Dunkins was not dead. A second execution was attempted which resulted in severe burning and mutilation of Mr. Dunkins's body. Witnesses saw smoke coming from Mr. Dunkins' ears and legs. It was subsequently reported by State representatives that cables attaching Alabama's power supply and the electric chair were improperly connected, resulting in insufficient voltage discharge to instantaneously kill Mr.. Dunkins.. It was also reported that Mr Dunkins may have received 6o or 70 volts of electricity during the state's first attempt at execution, which likely caused great pain but did not produce death. Nearly twenty minutes elapsed before Mr. Dunkins was finally pronounced dead. Although electrodes were fixed on the head and left leg near the knee, Horace Dunkins received electrical burns in his hip, left thigh, buttocks, lower back, right shoulder and right
6
Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 6 of 13

thigh. See Exhibit 9, State of Alabama Department of Forensic Sciences, Autopsy Protocol for Horace Dunkins.
h. Michael Lindsay received burn marks on his scrotum and left arm State Medical Examiner LeRoy Riddick, MD, states that Lindsay had a "2 inch zone of burn on the left side of the scrotum " See Exhibit 10, State of Alabama Department of Forensic Sciences, Autopsy Protocol for Michael Lindsay. Dr. Riddick also described [a]rcing marks around left groin. " Id. Furthermore, the state medical examiner's autopsy revealed that Michael Lindsay's body contained both "a small abrasion on the mid-portion of the right clavicle" and a 4 inch semicircular burn on his left forearm. Id.
c. Wayne Ritter's autopsy similarly revealed burns to his scrotum and even burns to his chest, neck and abdomen. Ritter, as Lindsay, had a "2 inch zone of burns on the left side of the scrotum " See Exhibit 11, State of Alabama Department of Forensic Sciences, Autopsy Protocol for Wayne Eugene Ritter. This burn corresponded to a zone of burns on Ritter's inside left leg. Ritter's autopsy also revealed injuries to his chest in the form of "a zone of violaceous changes to the upper portion of the chest on each side of the sternal notch " Id. LeRoy Riddick MD, and Gary Cumberland, MD , the State Medical Examiners for Ritter's autopsy, also located burns on Ritter's neck, "anteriorly on each side of the central portions of the neck" Id.
14 Virginia, like Georgia and Alabama, has also experienced multiple problems with its electric chair.
a.. On August 10,1992, FrankJ. Coppola was putto death by electrocution After two jolts of electricity had been applied to him, the death chamber reportedly filled with the smell and sizzle of burning as Coppola's head and leg burst
7
Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 7 of 13

into flames . b. On October 17, 1990, blood poured fiom Wilbert Lee Evans' eyes
and nose after the current was applied Witnesses noted audible moaning during the electrocution. Evans reportedly made a sizzling sound like a pressure cooker before its top has been put on.
c. On August 22, 1991, Derick Lynn Peterson moaned audibly as electric current was applied to him After two minutes of current and a four minute wait, a prison doctor checked Peterson's pulse with his stethoscope and announced that Peterson was not dead. After another four-minute wait, the doctor again checked the pulse and announced that Peterson had not expired Finally, a second surge of electricity was applied. In total, it took over thirteen minutes to complete Peterson's execution.
d A witness to Roger Keith Coleman's May 20, 1992 execution reported smoke coming from Coleman's leg. Coleman required two 1,700-voltjolts to die.
15. Florida has also had similar problems with its electric chair, a chair that the current Tennessee consultant, Jay Weichert, has worked on.
a. In 1997, Pedro Medina was put to death in the infamous "Old Sparky. " During his execution, Medina's head literally caught on fire, the flames shooting more than a foot into the air, the room filled with smoke and the witnesses were hurriedly rushed from the room. "Old Sparky" was replaced with a new modeL
b. In 1999, Allen Lee "Tiny" Davis was put to death in the new and improved Florida electric chair. The chair had been built with Davis in mind. Davis's body literally burst open, blood pouring out. Photos of "Tiny" Davis are widely available
8
Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 8 of 13

on the internet. See http: //www.ccadp.org/tinydavis.htm (Last checked 10/4/o6}.

16.. The use of the electric chair has been repeatedly characterized as the

modern day version of burning at the stake See Glass v. Louisiana, 471 U .S 1080, 1994

(1988) (Brennan, J. respecting the denial of cert)

17. The Supreme Court of Georgia has found that the electric chair constitutes

cruel an unusual punishment under the state Constitution Dawson v. State, 554 S .E..2d

137, 144 (Ga. 2001} 18. Based on these facts, it is clear that the use of Tennessee's electric chair

will, in all likelihood, submit Mr Johnson to excruciating pain and torture, and is unconstitutional under the Eighth and Fourteenth Amendments This Court should

grant a preliminary injunction, enjoining the use ofthe electric chair upon Don Johnson

to allow for further proceedings.

19 The appropriateness of a preliminary injunction here is confirmed by the

traditional four-part test governing injunctive relief: a. Under that test, a court is required to assess: (a) the movant's

likelihood of success on the merits; (b) irreparable harm to the movant absent a stay; (c) the prospect that others will be harmed; and (d) the public interest. See~, Nader v.

Blackwell, 230 F3d 833, 834 (6'h Cir. 2ooo)(granting stay pending appeal); Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6'h Cir .

1991}

b. These four factors "are factors to be balanced, not prerequisites that

must be met" Nader, 230 F3d at 834; Michigan Coalition of Radioactive Material Users, Inc., 945 F.2d at 153; In Re Delorean Motor Co., 755 F.2d 1223, 1229 (6'h Cir.

9

Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 9 of 13

c.. "The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay. Simply stated, more of one excuses less of the other . " Michigan Coalition of Radioactive Material Users. Inc., 945 F.2d at 153; In Re Delorean Motor Co., 755 F.2d at 1229
d.. Thus, it has long been the law of this Circuit that a stay is appropriate where the movant "at least shows serious questions going to the merits and
irreparable harm which decidedly outweighs any potential harm to the defendant if an
injunction is issued" Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F .2d 100, 105 (6'h Cir. 1982) (emphasis supplied).. See also Family Trust Foundation of Kentucky, Inc. v. KentuckY Judicial Conduct Commission, 388 F 3d 224, 227 (6'h Cir. 2004)..
e Here, these four considerations require a preliminary injunction 1) Plaintiffs complaint (R 1) is far from frivolous, and there is
clear evidence that, in violation of the Eighth and Fourteenth Amendments, if Don Johnson is to be executed in Tennessee's electric chair, he will be conscious and suffering terror and excruciating pain during the execution process. In the end, Mr. Johnson will die from asphyxiation and will literally bum up from the inside Mr. Johnson's claims are properly before this Court, and he will likely prevail on the merits.
2) It is also apparent that Don Johnson would suffer irreparable injury absent the requested relief: He would face the loss oflife under cruel and torturous circumstances. This point is vividly illustrated by the execution of Allen "Tiny" Davis by the State of Florida in 1999 Davis's execution has been recounted in a recent essay by Michael Radelet:
10
Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 10 of 13

"Before he was pronounced dead . the blood from his mouth had poured onto the collar of his white shirt, and the blood on his chest had spread to about the size of a dinner plate, even oozing through the buckle holes on the leather chest strap holding him to the chair.." His execution was the first in Florida's new electric chair, built especially so it could accommodate a man Davis's size (approximately 350 pounds}. Later, when another Florida death row inmate challenged the constitutionality of the electric chair, Florida Supreme Court Justice Leander Shaw commented that "the color photos of Davis depict a man who -- for all appearances -- was brutally tortured to death by the citizens of Florida. " Justice Shaw also described the botched executions of Jesse Tafero and Pedro Medina (q. v.), calling the three executions "barbaric spectacles" and "acts more befitting a violent murderer than a civilized state "
See Exhibit 12, Radelet, Michael, Some Examples ofPost-Funnan Botched Executions,
May 3, 2006 Photographs of Mr. Davis after the execution are attached as Exhibits 13-
14
3) Additional Proof in Support of Mr Johnson's claim that he
will suffer irreparable injury is provided to the Court in the form of autopsy reports and
photos,4 as well as affidavits frum individuals who have viewed electrocutions,5 all of
4 See Exhibit 15, Photographs ofRobert Wayne Williams Taken after he was executed in Louisiana, December 14, 1983; Exhibit16, Postmortem Examination ofthe body ofJesse Tafero including photos ofTafero taken at the autopsy and after; Exhibit 17, Postmortem Examination of the body of Daniel M. Thomas and photographs; Exhibit 18, Postmortem Examination ofthe body ofDavid Livingston Funchess and photos; Exhibit 19, Postmortem Examination of the body of Ronald John Michael Straight and photos; Exhibit 20, Postmortem Examination ofthe body ofBeuford White and autopsy photographs; Exhibit 21, Postmortem Examination of the body of Willie Jasper Darden, Jr. and autopsy photographs; Exhibit 22, Postmortem Examination ofthe body ofJeffrey Joseph Daugherty and autopsy photographs; Exhibit 23, Postmortem Examination of the body of Theodore Robert Bundy and autopsy photographs; Exhibit 24, Postmortem Examination ofthe body of Aubrey Adams and autopsy photographs; Exhibit 25, State of Alabama Department of Forensic Sciences, Autopsy Protocol for John Lewis Evans, III; Exhibit 26, State ofAlabama Department of Forensic Sciences, Autopsy Protocol for Arthur Lee Jones; Exhibit 27, State of Alabama Department of Forensic Sciences, Autopsy Protocol for Herbert Lee
II
Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 11 of 13

which are attached as Exhibits 15-33 These show time and again that individuals who are subjected to death in the electric chair are subjected to a horrific, torturous death.
4) In addition, there is little potential harm to the Defendants, who would merely be required to temporarily refrain from engaging in cruel and inhumane actions.
5) Finally, the public manifestly has no interest in allowing state agents to willfully inflict a most gruesome death on one of its citizens. The public interest lies with a proper and deliberate examination of the complaint.
6) In the balance ofthese factors, therefore, a preliminary injunction is appropriate
CONCLUSION This Court should grant a preliminary injunction prohibiting Defendants from executing Don Johnson in Tennessee's electric chair, pending final disposition of this case.
Respectfully submitted,
Kelley J . Henry Gretchen L Swift Assistant Federal Public Defenders
Richardson; Exhibit 28, State of Alabama Department of Forensic Sciences, Autopsy Protocol for Wallace Norell Thomas.
'See Exhibit 29, Affidavit of Russell F. Canan; Exhibit 30, Affidavit of Samuel Glasscock; Exhibit 31, Affidavit ofJonathan Eig; Exhibit 32, Affidavit ofJohnny Robinson; Exhibit 33, Affidavit of Reverend J.D. Brown
12
Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 12 of 13

Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 FAX (615)736-5265 By: jsj Kelley J. Henry
CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served upon the Defendants Little and Bell by delivering a copy to Mark Hudson, Assistant Attorney General, 425 Fifth Avenue North, Nashville, Tennessee 37243 this 18'h day of October, 2006.
Is! Kelley J. Henry Counsel for Plaintiff
13 Case 3:06-cv-00946 Document 15-1 Filed 10/18/2006 Page 13 of 13

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DON JOHNSON v. GEORGE LITTLE, et al.

)

)

)

No. 3:06-0946

)

JUDGE CAMPBELL

)

DEATH PENALTY CASE

MEMORANDUM I. Introduction
Pending before the Court is a Motion To Dismiss Of Defendants Little And Bell (Docket No. 6). Plaintiff has filed a Response to the Motion (Docket No. 13), an Amended Complaint (Docket No. 14), and a Motion For Preliminary Injunction (Docket No. 15) to stay his execution. For the reasons set forth below, the Motion To Dismiss (Docket No. 6) is GRANTED and the Motion for Preliminary Injunction (Docket No. 15) is DENIED.
Plaintiff has filed an Amended Complaint under 42 U.S.C. Section 1983 alleging that death by electrocution violates his constitutional right to be free from cruel and unusual punishment and his due process rights under the Eighth and Fourteenth Amendments; the use of pancuronium bromide as part of the lethal injection procedure violates his constitutional right to be free from cruel and unusual punishment under the Eighth Amendment and his due process and equal protection rights under the Fourteenth Amendment; and the procedures for use of, and actual use of, sodium thiopental, pancuronium bromide, and potassium chloride as part of the lethal injection procedure violate his constitutional right to be free from cruel and unusual punishment under the Eighth Amendment.

Case 3:06-cv-00946 Document 20 Filed 10/19/2006 Page 1 of 7

Through the Motion To Dismiss, the Defendants argue that Plaintiff has been dilatory in raising the challenges; the statute of limitations bars the action; Plaintiff has waived his right to challenge electrocution; electrocution does not constitute cruel and unusual punishment; Plaintiff’s challenge to the lethal injection procedure is moot; and Plaintiff’s equal protection challenge is without merit.
As the Court agrees that Plaintiff’s challenge to electrocution has been waived, Plaintiff’s challenge to the lethal injection procedure is moot, and Plaintiff’s equal protection challenge is without merit, it is unnecessary to consider Defendants’ other arguments. Plaintiff’s request for a preliminary injunction to stay his execution is denied for the reasons set forth below.
II. Motion to Dismiss In considering a motion to dismiss for failure to state a claim on which relief can be granted, the court must accept as true all factual allegations in the complaint. Broyde v Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir. 1994). The purpose of a motion to dismiss for failure to state a claim is to allow the defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993).
A. Electrocution and Waiver Tenn. Code Ann. § 40-23-114 provides that an inmate sentenced to death by
electrocution may choose death by lethal injection instead, and that if the inmate does not affirmatively choose to die by electrocution, he will be executed by lethal injection:
2
Case 3:06-cv-00946 Document 20 Filed 10/19/2006 Page 2 of 7

(a) For any person who commits an offense for which such person is sentenced to the punishment of death, the method for carrying out this sentence shall be by lethal injection.
(b) Any person who commits an offense prior to January 1, 1999, for which such person is sentenced to the punishment of death may elect to be executed by electrocution by signing a written waiver waiving the right to be executed by lethal injection.
(c) The department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of this section.
(d) If lethal injection or electrocution is held to be unconstitutional by the Tennessee Supreme Court under the Constitution of Tennessee, or held to be unconstitutional by the United States Supreme Court under the United States Constitution, or if the United States Supreme Court declines to review any judgment holding lethal injection or electrocution to be unconstitutional under the United States Constitution made by the Tennessee Supreme Court or the United States Court of Appeals that has jurisdiction over Tennessee, or if the Tennessee Supreme Court declines to review any judgment by the Tennessee Court of Criminal Appeals holding lethal injection or electrocution to be unconstitutional under the United States or Tennessee Constitution, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution. No sentence of death shall be reduced as a result of a determination that a method of execution is declared unconstitutional under the Constitution of Tennessee or the Constitution of the United States. In any case in which an execution method is declared unconstitutional, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method of execution.
Tenn. Code Ann. § 40-23-114.
The Amended Complaint alleges that on September 28, 2006, the Warden provided the
Plaintiff with an “Affidavit Concerning Method of Execution,” and that Plaintiff placed a
checkmark next to the words: “I waive the right to have my execution carried out by lethal
injection and choose to be executed by electrocution.” (Complaint, at ¶¶ 14 - 17). The Amended
3
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Complaint alleges that Plaintiff’s counsel attached a Notice of Objection to the form challenging the election procedure. (Complaint, at ¶¶ 18 - 19).
Defendants argue that Plaintiff’s choice of electrocution constitutes a waiver of any claim that electrocution is unconstitutional.
In Stewart v. LaGrand, 526 U.S. 115, 119 S.Ct. 1018, 1021, 143 L.Ed.2d 196 (1999), the Supreme Court held that an inmate who chose to be executed by lethal gas instead of the default rule of execution by lethal injection waived his claim that the use of lethal gas is unconstitutional. Applying Steward here, the Court concludes that, by choosing electrocution, Plaintiff has waived his right to challenge this method of execution.
Although Plaintiff argues that his waiver was not knowing and intelligent because he was not provided with certain requested information, the Stewart Court does not hold that any certain amount of information must be provided to the inmate in order for the waiver to be valid.
Plaintiff also argues that his waiver is invalid because he was required to choose between two unconstitutional alternatives, electrocution and lethal injection. The flaw in Plaintiff’s argument is that under Tenn. Code Ann. § 40-23-114, he was not required to make any choice. Had he not affirmatively chosen to die by electrocution, the method of execution would have been lethal injection.1 Under those circumstances, Defendant could not have raised a waiver
1 To the extent Plaintiff seeks, in this case, to raise a challenge to the procedure set forth in Section 40-23-114, that challenge has been raised and rejected in a separate case filed by Plaintiff. See Johnson v. Little, 3-06-0916 (Memorandum and Order, Docket Nos. 13, 14). See Wolfe v. Perry, 412 F.3d 707, 716 (6th Cir. 2005)(Once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation).
4
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argument based on the choice made by the Plaintiff in his “Affidavit Concerning Method Of Execution.”
Accordingly, the Court concludes that Plaintiff’s constitutional challenge to electrocution should be dismissed. B. Lethal Injection and Mootness
Plaintiff also challenges the lethal injection method of execution in the Amended Complaint. Defendants argue that because Plaintiff has chosen death by electrocution, any challenge to lethal injection is moot. Plaintiff, in response, agrees that a challenge to lethal injunction is not currently justiciable (Response, Docket No. 13, p.16).
The Court agrees. A case becomes moot when the parties lack a legally cognizable interest in the outcome. United States v. City of Detroit, 401 F.3d 448, 450-51 (6th Cir. 2005)(quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). “Mootness generally depends on ‘whether the relief sought would, if granted, make a difference to the legal interests of the parties. . .’” Id. (quoting McPherson v. Michigan High School Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir.1997)). Federal courts have no authority to render decisions on questions that are moot. Id.
In this case, a decision that death by lethal injection is unconstitutional would not affect Plaintiff’s legal interests as he has chosen to die by electrocution. Accordingly, his challenge to
5
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the lethal injection method of execution is moot and is dismissed. C. Equal Protection
Plaintiff also challenges the lethal injection method of execution on equal protection grounds. Specifically, Plaintiff contends that through the Nonlivestock Animal Humane Death Act, Tenn. Code Ann. §§ 44-17-301, et seq., the State protects pets from the use of pancuronium bromide when being euthanized, but permits its use in executions of human beings.
For the reasons discussed above, Plaintiff’s choice of death by electrocution renders this claim moot and it is dismissed.
III. Motion For Preliminary Injunction Plaintiff, through the Motion for Preliminary Injunction (Docket No. 15) asks the Court to enjoin the State of Tennessee from executing him in the electric chair until this Court can conduct further proceedings in this case. After the parties filed their briefs, the Court of Appeals for the Sixth Circuit issued a stay of execution. Johnson v. Bell, Case No. 05-6925 (6th Cir. Oct. 19, 2006). Thus, Plaintiff’s Motion for a Preliminary Injunction is moot. In any event, in determining whether to issue a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, the Court is to consider: (1) whether the movant has shown a strong or substantial likelihood of success on the merits; (2) whether irreparable harm will result without an injunction; (3) whether issuance of a preliminary injunction will result in substantial harm to others; and (4) whether the public interest is advanced by the injunction. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).
6
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The Court having determined that Plaintiff’s claims lack merit and should be dismissed, and in light of the stay of execution issued by the Sixth Circuit, the Motion for Preliminary Injunction is DENIED.
IV. Conclusion For the reasons set forth above, Defendant’s Motion to Dismiss (Docket No. 6) is granted and Plaintiff’s claims are dismissed. Plaintiff’s Motion for Preliminary Injunction (Docket No. 15) is denied. It is so ORDERED.
TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE
7 Case 3:06-cv-00946 Document 20 Filed 10/19/2006 Page 7 of 7

 
 Case: 06-6415 Document: 006111897549 Filed: 12/03/2013 Page: 1

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Case No. 06-6415/06-6452/07-6408 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ORDER
DONNIE E. JOHNSON Petitioner - Appellant
v. GEORGE LITTLE, in his official capacity as Tennessee's Commissioner of Correction; RICKY J. BELL, in his official capacity as Warden Riverbend Maximum Security Institution
Respondents - Appellees
Upon consideration of the joint motion of the parties to voluntarily dismiss the appeals herein pursuant to Rule 42(b), Federal Rules of Appellate Procedure,
It is ORDERED that the motion is GRANTED and the appeals are dismissed.

Issued: December 03, 2013

ENTERED BY ORDER OF THE COURT Deborah S. Hunt, Clerk
___________________________________

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Case: 06-6415 Document: 006111897550 Filed: 12/03/2013 Page: 1

(2 of 3)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: December 03, 2013

Ms. Kelley J. Henry Federal Public Defender's Office 810 Broadway Suite 200 Nashville, TN 37203
Mr. Mark A. Hudson Office of the Tennessee Attorney General P.O. Box 20207 Nashville, TN 37202
Ms. Gretchen L. Swift Federal Public Defender's Office 810 Broadway Suite 200 Nashville, TN 37203
Re: Case No. 06-6415/06-6452/07-6408, Johnson v. Little, et al Originating Case No. : 3:06-CV-916
Dear Sir or Madam,
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,
s/Jill Colyer Case Manager Direct Dial No. 513-564-7024
Case 3:06-cv-00946 Document 29 Filed 12/03/13 Page 2 of 3 PageID #: 1566

Case: 06-6415 Document: 006111897550 Filed: 12/03/2013 Page: 2

(3 of 3)

cc: Mr. Keith Throckmorton Enclosure No mandate to issue

Case 3:06-cv-00946 Document 29 Filed 12/03/13 Page 3 of 3 PageID #: 1567

 
 CASE−CLOSED,DEATH−PENALTY−CASE,KNOWLES
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:06−cv−00946

Johnson v. Little et al Assigned to: District Judge Todd J. Campbell Case in other court: 06−06452 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Don Johnson

Date Filed: 10/04/2006 Date Terminated: 10/19/2006 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Christopher M. Minton Federal Public Defender's Office (MDTN) 810 Broadway Suite 200 Nashville, TN 37203 (615) 736−5047 Email: chris_minton@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gretchen L. Swift Federal Public Defender's Office (MDTN) 810 Broadway Suite 200 Nashville, TN 37203 (615) 736−5047 Email: gretchen_swift@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelley J. Henry Federal Public Defender's Office (MDTN) 810 Broadway Suite 200 Nashville, TN 37203 (615) 736−5047 Email: kelley_henry@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul R. Bottei Federal Public Defender's Office (MDTN) 810 Broadway Suite 200 Nashville, TN 37203 (615) 736−5047 Email: paul_bottei@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Defendant

George Little in his official capacity as Tennessee's Commissioner of Correction

represented by Mark Alexis Hudson Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741−7401 Fax: (615) 532−2541 Email: Mark.Hudson@ag.tn.gov

Case: 3:06-cv-00946 As of: 07/28/2014 10:29 AM CDT 1 of 4

Defendant Ricky Bell in his official capacity as Warden, Riverbend Maximum Security Institution
Defendant John Doe Executioners 1−100 Interested Party Sixth Circuit Court of Appeals

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha A. Campbell Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−3491 Email: martha.campbell@ag.tn.gov ATTORNEY TO BE NOTICED
represented by Mark Alexis Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha A. Campbell (See above for address) ATTORNEY TO BE NOTICED
represented by Sixth Circuit Court of Appeals Sixth Circuit Court of Appeals Email: CA06−Team3@ca6.uscourts.gov PRO SE

Date Filed 10/04/2006 10/04/2006 10/04/2006 10/04/2006 10/05/2006 10/10/2006 10/10/2006
10/10/2006

# Docket Text
1 COMPLAINT against Ricky Bell, John Doe Executioners 1−100, George Little , filed by Don Johnson.(rm) (Entered: 10/04/2006)
2 APPLICATION to Proceed in forma pauperis by Don Johnson. Responses due by 10/23/2006 (rm) (Entered: 10/04/2006)
3 ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Signed by Judge Todd J. Campbell on 10/4/06. (gi, ) (Entered: 10/04/2006)
4 ORDER: In light of the impending execution date of 10/25/06, defts are ordered to file a response to the complaint by 10/11/06. Pltf shall file any reply by 10/18/06. Signed by Judge Todd J. Campbell on 10/4/06. (gi, ) (Entered: 10/04/2006)
5 Summons issued as to defts Ricky Bell and George Little and forwarded to USM for service this date. (km, ) (Entered: 10/05/2006)
6 First MOTION to Dismiss by Ricky Bell, George Little. (Hudson, Mark) (Entered: 10/10/2006)
7 MEMORANDUM in Support of 6 First MOTION to Dismiss filed by Ricky Bell, George Little. (Attachments: # 1 Exhibit A, Order Setting Execution, June 20, 2006 (Tenn.)# 2 Appendix Kincy v. Livingston (5th Cir. 2006) Unpublished Opinion# 3 Appendix Hughes v. Johnson, (5th Cir. 2006), Unpublished Opinion# 4 Appendix Alley v. Little, (6th Cir. 2006), Unpublished Opinion# 5 Appendix Cox v. Shelby State Community College (6th Cir. 2002) Unpublished Opinion# 6 Appendix Walker v. Johnson, (E.D. Va. 2006) Order and Memorandum Opinion)(Hudson, Mark) (Entered: 10/10/2006)
8 MOTION to Disqualify Counsel by Ricky Bell, George Little. (Hudson, Mark) (Entered: 10/10/2006)

Case: 3:06-cv-00946 As of: 07/28/2014 10:29 AM CDT 2 of 4

10/10/2006 10/11/2006 10/17/2006 10/17/2006 10/18/2006 10/18/2006 10/18/2006 10/18/2006
10/18/2006 10/18/2006 10/18/2006 10/19/2006 10/19/2006 10/19/2006

9 MEMORANDUM in Support of 8 MOTION to Disqualify Counsel filed by Ricky Bell, George Little. (Hudson, Mark) (Entered: 10/10/2006)
10 SUMMONS returned executed by USM for Don Johnson. Ricky Bell served on 10/6/2006. (km, ) (Entered: 10/11/2006)
11 RESPONSE in Opposition re 8 MOTION to Disqualify Counsel filed by Don Johnson. (Henry, Kelley) (Entered: 10/17/2006)
12 ORDER denying 8 Motion to Disqualify Counsel. . Signed by Judge Todd J. Campbell on 10/17/06. (km, ) (Entered: 10/17/2006)
13 RESPONSE in Opposition re 6 First MOTION to Dismiss filed by Don Johnson. (Henry, Kelley) (Entered: 10/18/2006)
14 AMENDED COMPLAINT against all defendants, filed by Don Johnson.(Henry, Kelley) (Entered: 10/18/2006)
15 MOTION for Preliminary Injunction by Don Johnson. (Attachments: # 1 Exhibit List)(Henry, Kelley) Modified on 10/19/2006 (aef, ). Modified on 10/19/06 (jb). (Entered: 10/18/2006)
16 Additional Attachments (Exhibits Nos. 1−33; Exhibits Nos. 13−15 are Photographs provided to Court via hand delivery on CD) to Main Document re: 15 MOTION for Preliminary Injunction. (Attachments: # 1 Exhibit 1− CV Dr. Wikswo# 2 Exhibit 2− Declaration Dr. Wikswo# 3 Exhibit 2−Dr. John Wikswo part b# 4 Exhibit 3−Leuchter Equipment Certification# 5 Exhibit 4−Morse Letter# 6 Exhibit 5− Weichert Letter# 7 Exhibit 6− TDOC Electrocution Manual part a# 8 Exhibit 6−TDOC Electrocution Manual part b# 9 Exhibit 6−TDOC Electrocution Manual part c# 10 Exhibit 7−Letter From JVM Industries# 11 Exhibit 8−TN Article 9−16−06# 12 Exhibit 9− Horace Dunkins Report# 13 Exhibit 10− Michael Lindsay Report# 14 Exhibit 11− Wayne Ritter Report# 15 Exhibit 12− Post−Furman Botched Executions Article# 16 Exhibit 16− Postmortem Jesse Tafero# 17 Exhibit 17− Postmortem Daniel M. Thomas# 18 Exhibit 18− Postmortem David Funchess# 19 Exhibit 19−Postmortem Ronald Straight# 20 Exhibit 20− Postmortem Beuford White# 21 Exhibit 21−Postmortem Willie Jasper Darden, Jr.# 22 Exhibit 22−Postmortem Jeffrey Daugherty# 23 Exhibit 23−Postmortem Theodore Bundy# 24 Exhibit 24− Postmortem Aubrey Adams# 25 Exhibit 25− John Lewis Evans Report# 26 Exhibit 26− Arthur Lee Jones# 27 Exhibit 27− Herbert Lee Richardson# 28 Exhibit 28−Wallace Norell Thomas# 29 Exhibit 29−Affidavit of Russell F. Canan# 30 Exhibit 30−Affidavit of Samuel Glasscock# 31 Exhibit 31−Affidavit of Jonathan Eig# 32 Exhibit 32− Affidavit Johnny Robinson# 33 Exhibit 33− Affidavit of Reverend J.D. Brown)(Henry, Kelley) Modified Text on 10/19/06 (jb). (Entered: 10/18/2006)
17 NOTICE of Filing Compact Disc Containing Electronic Copies of Photographs Noted (Exhs. Nos. 13−15) in 15 Motion for Preliminary Injunction by Don Johnson. (Henry, Kelley) Modified Text on 10/19/06 (jb). (Entered: 10/18/2006)
18 INTERROGATORIES and Request for Production of Documents Propounded to Defendants by Don Johnson.(Henry, Kelley) Modified Text on 10/19/06 (jb). (Entered: 10/18/2006)
23 SUMMONS returned executed by USM for Don Johnson. George Little served on 10/6/2006. (km, ) (Entered: 10/20/2006)
19 NOTICE of Filing by Don Johnson Exhibit to Plaintiff's Response in Opposition to Defendants' Motion to Dismiss (Attachments: # 1 Exhibit Exhibit 1: Execution Form)(Henry, Kelley) (Entered: 10/19/2006)
Note to Filer re DE #16: Declarations and affidavits should be filed as separate events, not as attachments to other documents. These documents do not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 10/19/2006)
20 MEMORANDUM Signed by Judge Todd J. Campbell on 10/19/06. (gi, ) (Entered: 10/19/2006)

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10/19/2006 10/19/2006 11/14/2006 11/17/2006 10/16/2007
10/23/2007 10/25/2007
11/26/2007 12/03/2013

21 ORDER granting 6 Motion to Dismiss and denying 15 Motion for Preliminary Injunction for reasons set forth in the accompanying memorandum. This order shall constitute the judgment in this case pursuant to FRCP 58. Signed by Judge Todd J. Campbell on 10/19/06. (gi, ) (Entered: 10/19/2006)
22 Docket Entry Numbers 20 &21 are hereby entered on the docket in compliance with Rule 58 and/or Rule 79(a) of the Federal Rules of Civil Procedure on 10/19/06 by gi. (gi, ) (Entered: 10/19/2006)
24 NOTICE OF APPEAL as to 20 Memorandum &Opinion, 21 Order on Motion to Dismiss,, Order on Motion for Preliminary Injunction, by Don Johnson. (Henry, Kelley) (Entered: 11/14/2006)
USCA Case Number 06−6452 for 24 Notice of Appeal filed by Don Johnson and assignment of Audrey Crockett (mk, ) (Entered: 11/17/2006)
25 MOTION Motion For Relief From Judgment by Don Johnson. (Attachments: # 1 Exhibit 1− Harbison Memorandum Part 1# 2 Exhibit 1− Harbison Memorandum Part 2# 3 Exhibit 1− Harbison Transcript Vol. 1# 4 Exhibit 3− Harbison Transcript Volume 2# 5 Exhibit 4− Transcript Volume 3# 6 Exhibit 5− Harbison Transcript Vol. 4)(Henry, Kelley) (Entered: 10/16/2007)
26 RESPONSE in Opposition re 25 MOTION Motion For Relief From Judgment filed by Ricky Bell, George Little. (Hudson, Mark) (Entered: 10/23/2007)
27 ORDER: This case is currently on appeal to the Sixth Circuit Court of Appeals (Court of Appeals Docket No. 06−6452). See Docket No. 24 in this case. Therefore, this Court is without jurisdiction to decide Pltf's Motion for relief from judgment 25 . Signed by Judge Todd J. Campbell on 10/25/07. (km) (Entered: 10/25/2007)
28 NOTICE OF APPEAL as to 27 Order on Motion for Miscellaneous Relief, by Don Johnson. (Henry, Kelley) (Entered: 11/26/2007)
29 ORDER of USCA as to 24 Notice of Appeal filed by Don Johnson, 28 Notice of Appeal filed by Don Johnson. It is ORDERED that the motion is GRANTED and the appeals are dismissed. (NO MANDATE TO ISSUE) (tmw) (Entered: 12/03/2013)

Case: 3:06-cv-00946 As of: 07/28/2014 10:29 AM CDT 4 of 4

 
 Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: January 27, 2009
Ms. Kelley J. Henry Federal Public Defender's Office 810 Broadway Suite 200 Nashville, TN 37203
Mr. Mark A. Hudson Office of the Tennessee Attorney General P.O. Box 20207 Nashville, TN 37202
Re: Case Nos. 06-6452 /07-6408 , Johnson v. Little, et al Originating Case No. : 06-00946
Dear Counsel,
Please be advised that the above-styled cases will be held in abeyance pending this court’s decision in 07-6225, Harbison v Little.
Upon resolution of the above mentioned matter, we will instruct you further.
Sincerely yours,

s/Audrey Crockett Case Manager Direct Dial No. 513-564-7032 Fax No. 513-564-7094

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DONNIE E. JOHNSON Petitioner-Appellant, v.
DERRICK SCHOFIELD,1 et al. Respondents-Appellees

)

)

)

CAPITAL CASE

)

)

No. 06-6415

)

06-6452

)

07-6408

)

)

JOINT MOTION TO DISMISS APPEALS

COMES NOW Appellant and Appellee, by counsel, and hereby jointly

move to dismiss the above-captioned appeals as moot. In support of the motion,

counsel state as follows:

1. On November 15, 2013, this Court ordered the parties to file

supplemental briefs on the impact of the State of Tennessee’s new lethal injection

protocol on the above-captioned appeals.

2. Upon review, the parties jointly agree that the new protocol renders

the appeals moot.

WHEREFORE, the parties respectfully request that these appeals be

dismissed.

1Derrick Schofield is now the Commissioner of the Tennessee Department of Corrections.

Respectfully submitted, /s/ Kelley J. Henry KELLEY J. HENRY Supervisory Asst. Federal Public Defender FEDERAL PUBLIC DEFENDER Middle District of Tennessee Capital Habeas Unit 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 Kelley_henry@fd.org COUNSEL FOR APPELLANT
/s/ Mark A. Hudson MARK A. HUDSON Deputy Attorney TENNESSEE ATTORNEY GENERAL’S OFFICE 425 Fifth Avenue North P.O. Box 20207 Nashville, Tennessee 37202-0207 (615) 741-7401 Mark.Hudson@ag.tn.gov
2