Case 5:06-cv-00591-F Document 1 Filed 05/31/2006 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

ERIC ALLEN PATTON,

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Plaintiff,

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v.

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JUSTIN JONES, in his capacity as

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Director Oklahoma Department

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of Corrections; MARTY SIRMONS, in )

his capacity as Warden, Oklahoma State )

Penitentiary; and UNKNOWN

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EXECUTIONERS, in their capacities

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as Employees and/or Agents of the

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Oklahoma Department of Corrections,

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Defendants.

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Case no.

COMPLAINT

I. PRELIMINARY STATEMENT

1. Plaintiff Eric Allen Patton is a prisoner sentenced to death by the State of Oklahoma.

By statute, Oklahoma employs lethal injection as its method of execution. The Defendants and the

Oklahoma Department of Corrections [hereinafter “ODOC”] have designed a procedure for carrying

out Oklahoma’s statutory method of execution that purports to induce death only after a condemned

prisoner has been rendered unconscious and unable to experience pain. In reality, the policies and

practices devised by the Defendants and the ODOC unnecessarily risk conscious suffering and pain

during execution and deliberately ignore and are indifferent to the health and safety of condemned

prisoners.

2. This action is brought pursuant to Title 42 U.S.C. § 1983, of the United States Code

for violations and threatened violations of the rights of Plaintiff to be free from cruel and unusual

punishment under the Eighth and Fourteenth Amendments of the United States Constitution, to be

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free from arbitrary and capricious Department of Corrections procedures and protocols in violation of the Fifth and Fourteenth Amendments of the United States Constitution. Plaintiff seeks equitable and injunctive relief.
3. This lawsuit does not challenge the fact of the Plaintiff’s sentence of death, nor does it challenge the constitutionality of Oklahoma’s statute requiring execution by lethal injection.
II. PLAINTIFF 4. Eric Allen Patton is a United States citizen and resident of the State of Oklahoma. He is currently a prisoner under the supervision of the Oklahoma Department of Corrections, ODOC Number 250019, sentenced to death by lethal injection. Mr. Patton is held at H-Unit of the Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 74502-0097. Mr. Patton does not have a scheduled execution date.
III. DEFENDANTS 5. Defendant Justin Jones is the Director of the Oklahoma Department of Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma 73111. 6. Defendant Marty Sirmons is the Warden of Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 74502-0097. 7. Defendants Unknown Executioners are the officers, agents, employees, and successors in office, along with those acting in concert with them, of the Oklahoma Department of Corrections who will assist in carrying out the execution of Plaintiff. Plaintiff does not yet know the identities of the Unknown Executioners. 8. Defendants are acting under color of State law in designing the ODOC execution protocol and will act under color of State law in selecting and administering to Plaintiff chemicals in amounts, in combinations, and by methods that will unnecessarily risk conscious suffering and
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pain in the execution of a sentence of death and/or which are deliberately indifferent to the health, welfare, and safety of the Plaintiff.
IV. JURISDICTION AND VENUE 9. This action arises under 42 U.S.C. § 1983 to redress the deprivation under color of state law of rights, privileges, and immunities secured by the Constitution of the United States. The rights sought to be redressed are guaranteed by the Eighth, Fifth, and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction over this complaint pursuant to 28 U.S.C. § 1331 (federal question); § 1343 (civil rights violations); § 2201 (declaratory relief); and § 2202 (further relief). 10. Venue is proper in this Court under 28 U.S.C. § 1391 (b) and (c) because Justin Jones carries out the official business of the Department of Corrections from the Department’s administrative headquarters located in Oklahoma City, Oklahoma, and a substantial portion of the events giving rise to this claim have occurred and will occur within this district as part of the official business of the Department of Corrections.
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES 11. The Plaintiff has attempted to exhaust his administrative remedies as required under the Prison Litigation Reform Act, 42 U.S.C. § 1997e, by following the procedure set forth in the Oklahoma Department of Corrections Inmate/Offender Grievance Process. The Oklahoma Department of Corrections has been dilatory in denying or granting the relief requested by the Plaintiff. Because of the Defendant’s dilatory actions, the Plaintiff avers and asserts that all conditions precedent for bringing this suit have been met. Copies of the handwritten log of Plaintiff’s requests for relief and the letter returning the Plaintiff’s grievance “for further review and investigation” are appended hereto as Attachment A.
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VI. FACTUAL ALLEGATIONS 12. Plaintiff realleges and incorporates paragraphs 1 to 11 as if fully set out herein. 13. Lethal injection has been promoted as a peaceful way to induce death, like euthanizing a pet − an injection, quick unconsciousness, no struggling or movement, and death within seconds. With continuing regularity, however, that is not what happens in Oklahoma. 14. Scott Carpenter was executed by the State of Oklahoma on Thursday, May 8, 1997. At 10 minutes after midnight, as lethal drugs entered his body, witnesses report that Mr. Carpenter “moaned loudly. He exhaled and then his body convulsed. As the drugs began to take effect, [Mr.] Carpenter made loud rasping sounds and continued to convulse his muscles [and] visibly tensed as he struggled to breathe as the color drained from his face.”1 Four minutes after the execution began, Mr. Carpenter “[t]urned a deep shade of blue.”2 Mr. Carpenter “let out a guttural moan, gasped for breath and convulsed violently, stretching the belt that strapped his body to the table as his body arched upward,”3 his body “shuddered with 18 violent convulsions, followed by eight lesser ones.”4 Twelve minutes after the execution began, Mr. Carpenter was pronounced dead. 15. Robyn Parks was executed by the State of Oklahoma on Tuesday, March 10, 1992. At forty-two minutes after midnight, the execution began. Mr. Parks said, “I’m still awake.”5 “Less than two minutes after Warden Dan Reynolds ordered the execution to begin, Parks’ body began
1 Carlton M. Lane, 22-year-old executed for Eufala area murder, MCALESTER NEWSCAPITAL, May 8, 1997, at 1.
2 Id. 3 Michael Smith, Execution of Killer a Quiet One, THE TULSA WORLD, May 9, 1997, at A15. 4 Anthony Thornton, State Fulfills Killer’s Wish For Execution, THE DAILY OKLAHOMAN, May 8, 1997, at 1. 5 Kandra Wells, Parks Body Take To OKC After Execution, MCALESTER NEWS-CAPITAL, Mar. 10, 1992, at 2.
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bucking under straps that held him to a gurney. He spewed out all the air in his lungs, spraying a cloud of spit.”6 Witnesses said “[i]t was overwhelming, stunning, disturbing.”7 Eleven minutes after the execution began, Mr. Parks was pronounced dead.
16. Loyd LaFevers was executed by the State of Oklahoma on Tuesday, January 30, 2001. As the lethal drugs began to flow, Mr. LaFevers “laid his head back, and he began to go into convulsions, gasping for breath, his chest heaving.”8 He “started raising off the bed” and “[t]he rising of his chest and the burst of air happened together over and over, as if he were gasping.”9 “[H]is eyes stayed open.”10 “[H]e appeared to have a bruise and swelling in his left arm . . . where he had an IV tube.”11 After 6 minutes of convulsions, Mr. LaFevers was dead.
17. Unless modified, the policies and practices followed by the ODOC, which are on information and belief substantially the same today as were used in the executions of Mr. Carpenter, Mr. Parks, and Mr. LaFevers, will unnecessarily place the Plaintiff at risk of suffering the same excruciating torturous death as were experienced by Mr. Carpenter, Mr. Parks, and Mr. LaFevers.
A. Oklahoma’s Lethal Injection Legislation and How It Came into Being 18. After years of a court ordered moratorium on the death penalty, in 1976 the United States Supreme Court once again upheld capital sentencing procedures. 19. The problem with restarting executions in Oklahoma was that its electric chair, last used in 1966, had fallen into disrepair. The State looked for an alternative.
6 Wayne Green, 11 Minutes That Took A Lifetime, TULSA WORLD, Mar. 2, 1992, at A13. 7 Id. 8 Howard Pankratz, Leadville Senator Witnesses Execution of Aunt’s Killer, DENVER POST, Jan. 31, 2001, at B01. 9 Decl. Catherine M. Burton (Feb. 19, 2004). 10 Decl. Patrick J. Ehlers (Mar. 1, 2004). 11 Decl. Patrick J. Ehlers (Mar. 1, 2004).
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20. In what became the first proposal in the nation for execution by lethal injection, the Oklahoma Legislature enacted a statute prescribing that “[t]he punishment of death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice.” OKLA. STAT. tit. 22, § 1014 (A) (emphasis added).
21. The statute prescribes no specific drugs, dosages, drug combinations, manner of intravenous line access, or certifications, training, or licensure for those who participate in executions. All of the details for carrying out executions were left up to the Department of Corrections.
B. How Executions Are Performed in Oklahoma 22. On information and belief, executions by lethal injection in Oklahoma are performed in the following way: 23. The condemned prisoner is strapped to a gurney. 24. Phlebotomists insert two intravenous (“IV”) lines to the condemned prisoner, one into each arm. 25. When the curtains rise on the execution chamber, the IV lines can be seen leaving the condemned prisoner, draped across the floor of the chamber and passing through a hole in the wall to the room where the executioners wait. Last statements are made, and then a prison official orders the execution to begin. 26. Three lay-executioners then begin plunging eleven hand-held syringes in a confusing and complicated sequence prescribed by the ODOC protocol. First one drug, then a saline flush, then the next drug, alternating the drugs between the left and right arms. It is not known who, if
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anyone, directs the sequence of drug administration for the executioners. 27. The drugs purportedly administered are: Thiopental (to cause unconsciousness);12
Vecuronium Bromide (to cause paralysis and to stop all movement including respiration); and Potassium Chloride (to stop the heart).
28. The putative drugs dosages are: ! 1200 milligrams [“mgs”] Thiopental in the left arm IV line; ! Saline in the left arm IV line; ! 20 mgs Vecuronium Bromide in the right arm IV line; ! Saline in the right arm IV line; ! 100 meqs (milliequivalents) Potassium Chloride in the left arm IV line; and ! Saline in the left arm IV line.
29. The process is then repeated by injecting a second round of drugs: ! 100 meqs Potassium Chloride in the right arm IV line; ! Saline in the right arm IV line. ! 1200 mgs Thiopental in the left arm IV line; ! Saline in the left arm IV line ! 20 mgs Vecuronium Bromide in the right arm IV line; and ! Saline in the right arm IV line.13
30. The process is intended to deliver two doses of Thiopental through the left arm IV line, two doses of Potassium Chloride (one dose in each arm IV line), and two doses of Vecuronium
12Thiopental is also known as Sodium Pentothal or Sodium Thiopental and will be referred to as Thiopental in this Complaint.
13 Affidavit of Warden Mike Mullin, Jan. 12, 2004. 7

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Bromide in the right arm IV line. 31. When an electrocardiogram monitor signals the cessation of electrical activity in the
heart, a physician manually checks the condemned prisoner and pronounces death. 32. This process recklessly subjects condemned prisoners to significant and utterly
unnecessary risks that they will be tortured to death. C. The Risks of ODOC’s Lethal Injection Process 33. There are a number of risks associated with the ODOC’s execution process which
include, but are not limited to, the following: (a) First, in violation of medically approved procedures, the process fails to employ properly trained persons to carry out what is, in effect, the surgical induction of anesthesia. (b) Second, it arbitrarily and unnecessarily uses drugs and drug dosages that create significant risks that condemned prisoners will suffer completely unnecessary pain during execution. (c) Third, it mandates a sequence of drug administration that delays administration of a portion of the intended anesthetic until after the condemned prisoner is, or should be, dead. (d) Fourth, it delivers drugs through two alternating IV lines, impairing control over the timing and sequence of drug delivery and increasing the risk of drug administration failure. a. Because the Drugs Used to Cause Death Are Painful, it Is Necessary That Qualified Persons Create and Maintain IV Access to Ensure Adequate Anesthesia 34. The drugs used to cause death in an execution by lethal injection are painful. When 8

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a concentrated dose of Potassium Chloride is injected peripherally into the vein of an arm it feels like a fire traveling through the vein to the heart. Death by Potassium Chloride poisoning is known to be so excruciating that the American Veterinary Medical Association (“AVMA”) prohibits use of Potassium Chloride as the sole agent of euthanasia and, if it is to be used at all, only used after the subject has reached a surgical plane of anesthesia.
35. When a neuromuscular blocking agent is administered, it paralyzes all voluntary muscles. Respiration is impossible. It locks the recipient in a chemical tomb where he is conscious, but unable to signal distress and unable to breath, and eventually dies by asphyxiation. Death by asphyxiation involves intense, visceral pain and has, as a method of execution, been ruled unconstitutional as violative of the Eighth Amendment.
36. The risks of neuromuscular blocking agents are well known. The AVMA prohibits the use of neuromuscular blocking agents in combination with the barbiturate anesthetics. The State of Oklahoma prohibits the use of curariform neuromuscular blocking drugs in the euthanization of animals.
37. Lethal injection is only humane if an anesthetic is administered which induces unconsciousness before neuromuscular blockers stop respiration and Potassium Chloride stops the heart.
38. Administration of IV anesthesia requires proficiency at achieving and maintaining IV access. But the sources of error are many:
(a) IV catheters must be inserted into a vein and not through the vein into tissue. If a catheter is incorrectly placed, the drugs flowing through the IV lines can infiltrate the tissue surrounding the catheter rather than correctly entering the vein.
(b) In Oklahoma, because two alternating IV lines are used to administer drugs, two 9

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separate IV catheters must be inserted and both connections to the condemned prisoner’s veins maintained throughout the execution process. (c) Once inserted, the catheters are connected with tubing to IV fluid bags. All mechanical components of the IV system must operate correctly for the drugs to be correctly delivered, but errors commonly occur: IV tubing sometimes leaks or becomes disconnected, or the drugs are introduced to the IV system in the wrong direction, preventing the drugs in the IV line from reaching the patient in the intended concentrations, or from reaching the patient at all. 39. Oklahoma employs unqualified persons to create IV access. The phlebotomists used by the ODOC to insert IV catheters in condemned prisoners are trained to collect blood; they are not competent to administer drugs intravenously and are not expert in the process of inserting and maintaining IV catheters, a fundamentally different and far more difficult task than drawing blood. 40. On information and belief, no one monitors the IV catheters throughout executions, leaving open the possibility that IV catheters can become disconnected throughout the process. 41. In the event that a phlebotomist cannot achieve venous access in a peripheral vein in a hand or arm the ODOC is prepared to create venous access through the invasive and painful processes of inserting a percutaneous central line (tunneling under the skin to reach the subclavian or central vein) or performing a surgical cut down (where a vein is exposed by incision or catheritized). Because these techniques of venous access require much more skill and training and are far more invasive than peripheral vein access, they are normally performed in highly equipped emergency rooms or operating theatres. 42. The ODOC has failed to specify who has performed these procedures in the past (and there has been at least one central line venous access performed) or who will perform them in the
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future, if necessary, and failed to guarantee that those performing such measures will have the requisite training to protect condemned inmates from the unnecessary pain caused by these procedures if they are not performed in the appropriate manner.
43. On information and belief, Oklahoma uses three lay-executioners to plunge eleven hand held syringes in a confusing and complicated sequence to deliver the deadly drugs. The use of untrained persons to plunge syringes risks error in the sequence and rate of drug administration, IV line failures because the executioners cannot observe the IV site and monitor the condition of the IV catheter for things like infiltrations and blowouts and are not trained to interpret things like pressure feedback on the IV lines.
44. Training and experience is essential to the success of the execution as a humane process. The ODOC’s personnel and executioners are not properly trained in the art of administering intravenous drugs.
b. The Chemical Cocktail Chosen by the ODOC Creates an Unnecessary Risk of Flawed Executions Involving Conscious Suffering
45. The ODOC has arbitrarily selected three drugs that unnecessarily risk conscious suffering in the dosages, combinations, and procedures which its executioners use.
46. The first drug, Thiopental, is an ultra-short acting barbiturate which acts to depress the central nervous system to produce unconsciousness and anesthesia. Thiopental derives its utility in surgical procedures from its rapid onset and rapid redistribution through the body at low (surgical) doses. Typically, Thiopental is used in the induction phase of anesthesia to temporarily anesthetize patients for sufficient time to, for example, intubate the trachea. Thiopental is a drug which requires skill to administer and should only be administered by a person qualified in the use of intravenous anesthetics.
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47. If it is necessary to maintain a patient in a surgical plane of anesthesia for longer than just a few minutes, drugs other than Thiopental are typically used. If Thiopental is going to be used not only to induce, but also to maintain, a surgical plane of anesthesia, a qualified person must be present to assure that the Thiopental has been correctly administered and is maintaining the patient in a state of unconsciousness.
48. On information and belief, the ODOC protocol does not require any person to monitor the plane of anesthesia during execution.
49. The ODOC has arbitrarily and needlessly selected a dose of Thiopental that is lower than reliably guarantees a surgical plane of anesthesia for the duration of executions. The probability of inducing unconsciousness with Thiopental is dose dependent. Dosage is, in turn, weight dependent. For example, a 1200 mg dose to a 100-pound man is like a 600 mg dose to a 200pound man. Other jurisdictions in the United States typically employ larger doses of Thiopental than are used in Oklahoma. For example, California administers 5000 mg of Thiopental. Pharmacokinetic studies which model the uptake, distribution, and elimination of a 1200 mg dose of Thiopental on a range of body weights reveal that a 1200 mg dose of Thiopental is low enough to risk consciousness in some condemned prisoners during the course of the execution, even if the drug is fully and effectively delivered.
50. The second drug, Vecuronium Bromide, is a neuromuscular blocking agent and a curariform drug. Neuromuscular blocking agents are used clinically to induce skeletal muscle relaxation to facilitate tracheal intubation or to suppress spontaneous respiration.
51. Neuromuscular blocking agents must be administered with great care because they have no effect on consciousness or the ability to sense and perceive pain. Unless consciousness is assessed before the administration of the neuromuscular blocker, the paralysis induced in the patient
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will prevent anyone, even a person with advanced medical training, from ascertaining whether a patient is awake and capable of experiencing pain.
52. Neuromuscular blocking agents are typically accompanied by product warnings that require the drugs to be administered by experienced clinicians who are familiar with the drug’s actions and the possible complications of its use and cautioning that the drugs have no known effect on consciousness, pain threshold, or cerebration. Therefore, administration must be accompanied by adequate anesthesia or sedation.
53. The effect of neuromuscular blocking agents in immobilizing patients and masking external indications of their pain is well known. Patients who have been administered neuromuscular blocking agents with inadequate anesthesia have been conscious during surgery and have reported terrifying and torturous experiences where they were alert, experiencing pain, yet utterly immobilized and unable to signal their distress.
54. The consequences of erroneous administration of neuromuscular blocking agents is so profound that at least eighteen states, including Oklahoma, have banned by statute the use of such drugs in the euthanization of animals. The AVMA never permits the use of neuromuscular blocking agents in combination with barbiturate anesthetics. The ODOC has thus settled on a protocol and procedure to kill the State’s condemned prisoners that is considered too risky and dangerous for the euthanization of pets. There is no need to risk the conscious suffocation of these prisoners as a result of the administration of neuromuscular blocking agents. Other drugs are available to satisfy Oklahoma’s statutory requirement for a “paralytic agent” that do not affect respiration. Using these alternate drugs would eliminate the risk that a condemned prisoner will consciously asphyxiate.
55. The third drug, Potassium Chloride, contains essential blood ions and is typically administered in trace amounts as a necessary electrolyte. While a certain potassium level is
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important for normal cardiac electrical activity, a rapid increase in blood concentration of potassium causes cardiac arrest. Injection of concentrated potassium activates sensory nerve fibers, causing severe pain as the drug travels through the venous system. There is universal medical agreement that, without anesthesia, an injection of a Potassium Chloride overdose causes excruciating pain.
56. The American Veterinary Medical Association is so confident that death by Potassium Chloride will cause unnecessary suffering that it prohibits its use as a euthanasia agent unless the practitioner administering the Potassium Chloride has the skill and training to assure that the subject to be euthanized has reached a surgical plane of anesthesia.
57. The Oklahoma statute does not require the administration of Potassium Chloride and the ODOC has arbitrarily and needlessly added Potassium Chloride (which is universally acknowledged to be painful) to the protocol when alternative drugs would serve the statutory function of a paralytic agent.
c. The Order of Drug Administration Reveals the ODOC’s Flawed Understanding of the Execution Process
58. The ODOC protocol delays administration of a second dose of anesthetic agent to condemned prisoners until after the prisoner has been paralyzed by a neuromuscular blocker and twice administered massive overdoses of Potassium Chloride that should already have killed within seconds of reaching the prisoner’s heart. It should be self-evident that anesthetics should be administered before the other drugs in the execution sequence because it is unnecessary to administer them after death. However, the ODOC does not appear to know that the second dose of anesthetic in its process comes too late to alleviate the pain and suffering of the condemned prisoner. The order of drug administration in Oklahoma is arbitrary and capricious, without justification, and unnecessarily risks conscious suffering.
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d. The Two-Line IV Method Creates an Unnecessary Risk of Flawed Executions That Result in Conscious Suffering
59. Untrained personnel, the drugs selected, and the order of drug administration, each add to the risk of flawed executions in which prisoners consciously suffer pain. When these factors are combined with the two-line IV method of drug delivery employed by the ODOC, the risks rise exponentially. By using this two-line method of drug delivery, not used by any other state in the nation, the ODOC doubles the risks of IV line failures. Such failures can include, but are not limited to: IV line blockages; infiltrations in which the intravenous injection will diffuse into the surrounding tissue rather than be delivered into the vein; and other similar eventualities that result in an ineffective delivery of one or more of the drugs.
60. There is a grave risk in the ODOC protocol that the right IV line will remain open (effectively delivering the neuromuscular blocker and Potassium Chloride) while the left line is blocked or drug delivery is impeded. These circumstances would create a scenario in which the drug intended to achieve unconsciousness is not effectively delivered and the prisoner will be conscious when he is suffocated by having his respiration stopped and killed by having his heart stopped. There is reason to believe that just such eventualities have occurred during Oklahoma executions.
D. Oklahoma Executions Have Gone Wrong a. Observed IV Line Access Problems
61. The ODOC has failed to achieve successful IV access to condemned prisoners. In 2001, witnesses noticed swelling and bruising on Mr. LaFevers’s left (Thiopental) arm consistent with an IV infiltration which prevented effective delivery of the anesthetic intended to alleviate the inevitable pain accompanying the administration of a neuromuscular blocking agent and Potassium Chloride. The Warden has told the investigator for the Oklahoma Medical Examiner he “knew what
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went wrong” with Mr. LaFevers’s execution. Attachment B. 62. Autopsy reports show that, on at least seven occasions, executed prisoners have had
multiple acute puncture marks in addition to the IV catheter sites, reflecting that the ODOC has required multiple attempts to achieve venous access. In at least one execution it was impossible to achieve peripheral venous access and a central line was required.
63. IV access irregularities support the conclusions that personnel carrying out executions are inadequately trained and qualified.
b. Failure to Administer All Drugs 64. Autopsy reports reveal at least two cases in which full (unused) syringes of the anesthetic Thiopental have accompanied bodies to the medical examiner’s office. On information and belief, these data indicate that the ODOC has, on several occasions, arbitrarily and unnecessarily failed to administer all of the required and intended dose of Thiopental risking inadequate anesthesia and conscious suffering.
c. Witnesses Reports of Condemned Prisoner Reactions Suggest Inadequate Anesthesia
65. There are many reports of prisoner reaction to the execution process that are inconsistent with the rapid and complete onset and maintenance of anesthesia. As previously discussed, the Carpenter, LaFevers, and Parks executions were accompanied by witness observations of prisoner response to the execution protocol that is inconsistent with effective administration of the execution protocol.
66. Witnesses to other executions also report prisoner comments like “I can taste it” and shaking and convulsions that are also inconsistent with the rapid and complete onset and maintenance of anesthesia.
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d. Analytical Data Suggests Inadequate Anesthesia 67. Postmortem Thiopental blood concentrations, in some cases, cannot be reconciled with consistent administration of Thiopental and, in some cases, are inconsistent with antemortem unconsciousness. E. The Defendants and the ODOC Knew, Or Should Have Known, of Executions
Involving the Risk of Conscious Suffering Yet Have Failed to Correct the Execution Process to Minimize That Risk 68. The Defendants and the ODOC knew, or should have known, that their execution process is flawed in ways that entail risks of conscious suffering, but have deliberately ignored those risks and failed to make practicable modifications in the process. The ODOC policy statement number OP-090901, dated April 12, 1978 (date issued) and May 1, 1978 (effective date) indicates that the Defendants and the ODOC have been aware since 1978 that adequate IV access is essential to a humane execution, but nevertheless have employed persons unqualified to achieve IV access as part of the execution process and has failed to employ qualified persons to monitor IV access and the plane of anesthesia throughout the execution process. 69. The Defendants and the ODOC knew, or should have known, since 1978 that drugs other than neuromuscular blocking agents or curariform derivatives can serve the statutory requirement of paralytic agents, but have nevertheless continued to employ drugs known to risk conscious suffering. 70. The Defendants and the ODOC knew, or should have known, of botched executions involving risks of conscious suffering, for example, the Carpenter execution, but have nevertheless continued to employ drugs, dosages, chemical combinations, and procedures that risk the needless infliction of conscious suffering. Ron Ward, who was Warden of the Oklahoma State Penitentiary during the Scott Carpenter execution, said that “There was probably more body action with this one
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than I’ve seen”14 and acknowledged that the Carpenter execution took longer than normal. The Warden during Mr. LaFevers’s execution told the investigator for the Oklahoma Medical Examiner he “knew” what went wrong. Attachment B.
F. The Defendants and the ODOC Have Arbitrarily and Capriciously Modified the Execution Processes Subjecting Condemned Prisoners to Risks of Conscious Suffering
71. The Defendants and the ODOC have, since 1990, arbitrarily and capriciously modified the execution processes to change, for example, the drugs used, the drug amounts, number of IV lines used to deliver drugs, and personnel involved, exposing condemned prisoners to risks of conscious suffering.
72. The sum of the available execution data (witness reports, postmortem Thiopental levels, execution duration, weight, and other data) indicate that the ODOC protocol has caused a high frequency of failure to effectively anesthetize condemned prisoners for the duration of executions.
73. Botched executions that risk conscious suffering are the direct and inevitable result of a protocol cobbled together in secret by people who are not qualified to conduct what is essentially the induction of anesthesia. The ODOC protocol is flawed at nearly every turn in that it: (1) orders executioners to take the bizarre step of anesthetizing those who are, or should be, already dead; (2) uses unqualified personnel like phlebotomists to insert IV catheters; (3) uses dangerous and unnecessary drugs (like neuromuscular blockers) in a reckless manner; (4) fails to take the simple step of assuring that a surgical plane of anesthesia and an actual state of unconsciousness have been achieved and will continue for the duration of the execution before
14 Anthony Thornton, After Apologizing, Killer Dies With Calm Dignity, THE DAILY OKLAHOMAN, May 9, 1997, at 9.
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administering painful drugs; (5) administers a dose of Thiopental that is unnecessarily dangerously low; and (6) introduces drugs through two IV lines unnecessarily complicating the execution process and unnecessarily risking harm.
74. The consequence of the ODOC protocol is that people are suffering when they are executed in Oklahoma. They are suffering for more than the transitory period necessarily attendant to any death. People are suffering for prolonged periods as result of completely avoidable problems in protocol and procedure. It is possible to conduct execution by lethal injection in a manner that both complies with Oklahoma’s statute and is humane, but the Defendants and the ODOC have arbitrarily, capriciously, and unnecessarily devised a protocol for carrying out executions by lethal injection that does not do so.
VII. CLAIM 75. Plaintiff realleges and incorporates paragraphs 1 to 74 as if fully set out herein. 76. By subjecting Plaintiff to an arbitrary, capricious and irrational method of execution that creates an unnecessary and significant risk of inflicting agonizing and prolonged pain, and by designing and administering a process under which they will inject Plaintiff with chemicals in amounts, combinations, and by a protocol or protocols that unnecessarily risk conscious suffering and pain in the execution of a sentence of death, Defendants deprive Plaintiff of his rights under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution to be free from cruel and unusual punishment and to be free from arbitrary and capricious processes.
VIII. PRAYER FOR RELIEF 77. Plaintiff realleges and incorporates paragraphs 1 to 77 as if fully set out herein. Wherefore, Plaintiff prays as follows: 78. That this Honorable Court issue a judgment declaring that the Defendants protocols,
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policies, practices, and acts and omissions as described herein violate Plaintiff’s rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States;
79. That this Honorable Court permanently enjoin Defendants, their officers, agents, employees, and successor in office, along with those acting in concert with them, from engaging in the unlawful practices described herein;
80. That this Honorable Court retain jurisdiction over this cause until the Court’s order is carried out; and
81. Any and all other such relief as this Court deems just, proper, and equitable under the circumstances including staying Plaintiff’s execution, if scheduled, until these issues set out here are resolved.
Respectfully submitted this 31st day of May, 2006, by and through,
s/ Scott W. Braden Scott W. Braden Oklahoma Bar No. 1040 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK. 73102 (405) 609-5930 (405) 609-5932 Scott_Braden@fd.org
VERIFICATION I, Scott W. Braden, hereby declare: 1. I am a member of the State Bars of Oklahoma, Florida and California and am admitted to practice before the all of the Federal District Courts of Oklahoma, the United States Court of Appeals for the Ninth, Tenth, Eleventh, and Federal Circuit Court of Appeals, and the United States Supreme Court.
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2. I have reviewed the foregoing complaint. I have personal knowledge of the matters set forth in the complaint, except as otherwise indicated, and could and would competently testify to them if called upon to do so. I verify that all of the alleged facts that are not otherwise supported by citations to the records or declarations attached to the complaint are true and correct to my own knowledge, except as to any matters stated in it on information and belief, which I am informed and believe are true and correct.
I declare under penalty of perjury under the laws of the State of Oklahoma and the United States of America that the foregoing is true and correct.
Executed on this 31st day of May, 2006, in Oklahoma City, Oklahoma. s/ Scott W. Braden Scott W. Braden Oklahoma Bar No. 1040 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK. 73102 (405) 609-5930 (405) 609-5932 Scott_Braden@fd.org
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 Case 5:06-cv-00591-F Document 4 Filed 06/05/2006 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

ERIC ALLEN PATTON,

)

)

Plaintiff,

)

)

v.

)

)

JUSTIN JONES, in his capacity as

)

Director Oklahoma Department

)

of Corrections; MARTY SIRMONS, in )

his capacity as Warden, Oklahoma State )

Penitentiary; and UNKNOWN

)

EXECUTIONERS, in their capacities

)

as Employees and/or Agents of the

)

Oklahoma Department of Corrections,

)

)

Defendants.

)

Case no. CIV-06-591-F

FIRST AMENDED COMPLAINT

I. PRELIMINARY STATEMENT

1. Plaintiff Eric Allen Patton is a prisoner sentenced to death by the State of Oklahoma.

By statute, Oklahoma employs lethal injection as its method of execution. The Defendants and the

Oklahoma Department of Corrections [hereinafter “ODOC”] have designed a procedure for carrying

out Oklahoma’s statutory method of execution that purports to induce death only after a condemned

prisoner has been rendered unconscious and unable to experience pain. In reality, the policies and

practices devised by the Defendants and the ODOC unnecessarily risk conscious suffering and pain

during execution and deliberately ignore and are indifferent to the health and safety of condemned

prisoners.

2. This action is brought pursuant to Title 42 U.S.C. § 1983, of the United States Code

for violations and threatened violations of the rights of Plaintiff to be free from cruel and unusual

punishment under the Eighth and Fourteenth Amendments of the United States Constitution, to be

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free from arbitrary and capricious Department of Corrections procedures and protocols in violation of the Fifth and Fourteenth Amendments of the United States Constitution. Plaintiff seeks equitable and injunctive relief.
3. This lawsuit does not challenge the fact of the Plaintiff’s sentence of death, nor does it challenge the constitutionality of Oklahoma’s statute requiring execution by lethal injection.
II. PLAINTIFF 4. Eric Allen Patton is a United States citizen and resident of the State of Oklahoma. He is currently a prisoner under the supervision of the Oklahoma Department of Corrections, ODOC Number 250019, sentenced to death by lethal injection. Mr. Patton is held at H-Unit of the Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 74502-0097. Mr. Patton does not have a scheduled execution date.
III. DEFENDANTS 5. Defendant Justin Jones is the Director of the Oklahoma Department of Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma 73111. 6. Defendant Marty Sirmons is the Warden of Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 74502-0097. 7. Defendants Unknown Executioners are the officers, agents, employees, and successors in office, along with those acting in concert with them, of the Oklahoma Department of Corrections who will assist in carrying out the execution of Plaintiff. Plaintiff does not yet know the identities of the Unknown Executioners. 8. Defendants are acting under color of State law in designing the ODOC execution protocol and will act under color of State law in selecting and administering to Plaintiff chemicals in amounts, in combinations, and by methods that will unnecessarily risk conscious suffering and
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pain in the execution of a sentence of death and/or which are deliberately indifferent to the health, welfare, and safety of the Plaintiff.
IV. JURISDICTION AND VENUE 9. This action arises under 42 U.S.C. § 1983 to redress the deprivation under color of state law of rights, privileges, and immunities secured by the Constitution of the United States. The rights sought to be redressed are guaranteed by the Eighth, Fifth, and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction over this complaint pursuant to 28 U.S.C. § 1331 (federal question); § 1343 (civil rights violations); § 2201 (declaratory relief); and § 2202 (further relief). 10. Venue is proper in this Court under 28 U.S.C. § 1391 (b) and (c) because Justin Jones carries out the official business of the Department of Corrections from the Department’s administrative headquarters located in Oklahoma City, Oklahoma, and a substantial portion of the events giving rise to this claim have occurred and will occur within this district as part of the official business of the Department of Corrections.
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES 11. The Plaintiff has exhausted his administrative remedies as required under the Prison Litigation Reform Act, 42 U.S.C. § 1997e, by following the procedure set forth in the Oklahoma Department of Corrections Inmate/Offender Grievance Process. The Oklahoma Department of Corrections has denied all relief requested by Plaintiff and Plaintiff avers and assert that all conditions precedent for bringing this suit have been met. Copies of Plaintiff’s requests for and denials of administrative relief are appended hereto as Attachments A.
VI. FACTUAL ALLEGATIONS 12. Plaintiff realleges and incorporates paragraphs 1 to 11 as if fully set out herein.
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13. Lethal injection has been promoted as a peaceful way to induce death, like euthanizing a pet − an injection, quick unconsciousness, no struggling or movement, and death within seconds. With continuing regularity, however, that is not what happens in Oklahoma.
14. Scott Carpenter was executed by the State of Oklahoma on Thursday, May 8, 1997. At 10 minutes after midnight, as lethal drugs entered his body, witnesses report that Mr. Carpenter “moaned loudly. He exhaled and then his body convulsed. As the drugs began to take effect, [Mr.] Carpenter made loud rasping sounds and continued to convulse his muscles [and] visibly tensed as he struggled to breathe as the color drained from his face.”1 Four minutes after the execution began, Mr. Carpenter “[t]urned a deep shade of blue.”2 Mr. Carpenter “let out a guttural moan, gasped for breath and convulsed violently, stretching the belt that strapped his body to the table as his body arched upward,”3 his body “shuddered with 18 violent convulsions, followed by eight lesser ones.”4 Twelve minutes after the execution began, Mr. Carpenter was pronounced dead.
15. Robyn Parks was executed by the State of Oklahoma on Tuesday, March 10, 1992. At forty-two minutes after midnight, the execution began. Mr. Parks said, “I’m still awake.”5 “Less than two minutes after Warden Dan Reynolds ordered the execution to begin, Parks’ body began bucking under straps that held him to a gurney. He spewed out all the air in his lungs, spraying a
1 Carlton M. Lane, 22-year-old executed for Eufala area murder, MCALESTER NEWSCAPITAL, May 8, 1997, at 1.
2 Id. 3 Michael Smith, Execution of Killer a Quiet One, THE TULSA WORLD, May 9, 1997, at A15. 4 Anthony Thornton, State Fulfills Killer’s Wish For Execution, THE DAILY OKLAHOMAN, May 8, 1997, at 1. 5 Kandra Wells, Parks Body Take To OKC After Execution, MCALESTER NEWS-CAPITAL, Mar. 10, 1992, at 2.
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cloud of spit.”6 Witnesses said “[i]t was overwhelming, stunning, disturbing.”7 Eleven minutes after the execution began, Mr. Parks was pronounced dead.
16. Loyd LaFevers was executed by the State of Oklahoma on Tuesday, January 30, 2001. As the lethal drugs began to flow, Mr. LaFevers “laid his head back, and he began to go into convulsions, gasping for breath, his chest heaving.”8 He “started raising off the bed” and “[t]he rising of his chest and the burst of air happened together over and over, as if he were gasping.”9 “[H]is eyes stayed open.”10 “[H]e appeared to have a bruise and swelling in his left arm . . . where he had an IV tube.”11 After 6 minutes of convulsions, Mr. LaFevers was dead.
17. Unless modified, the policies and practices followed by the ODOC, which are on information and belief substantially the same today as were used in the executions of Mr. Carpenter, Mr. Parks, and Mr. LaFevers, will unnecessarily place the Plaintiff at risk of suffering the same excruciating torturous death as were experienced by Mr. Carpenter, Mr. Parks, and Mr. LaFevers.
A. Oklahoma’s Lethal Injection Legislation and How It Came into Being 18. After years of a court ordered moratorium on the death penalty, in 1976 the United States Supreme Court once again upheld capital sentencing procedures. 19. The problem with restarting executions in Oklahoma was that its electric chair, last used in 1966, had fallen into disrepair. The State looked for an alternative. 20. In what became the first proposal in the nation for execution by lethal injection, the
6 Wayne Green, 11 Minutes That Took A Lifetime, TULSA WORLD, Mar. 2, 1992, at A13. 7 Id. 8 Howard Pankratz, Leadville Senator Witnesses Execution of Aunt’s Killer, DENVER POST, Jan. 31, 2001, at B01. 9 Decl. Catherine M. Burton (Feb. 19, 2004). 10 Decl. Patrick J. Ehlers (Mar. 1, 2004). 11 Decl. Patrick J. Ehlers (Mar. 1, 2004).
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Oklahoma Legislature enacted a statute prescribing that “[t]he punishment of death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice.” OKLA. STAT. tit. 22, § 1014 (A) (emphasis added).
21. The statute prescribes no specific drugs, dosages, drug combinations, manner of intravenous line access, or certifications, training, or licensure for those who participate in executions. All of the details for carrying out executions were left up to the Department of Corrections.
B. How Executions Are Performed in Oklahoma 22. On information and belief, executions by lethal injection in Oklahoma are performed in the following way: 23. The condemned prisoner is strapped to a gurney. 24. Phlebotomists insert two intravenous (“IV”) lines to the condemned prisoner, one into each arm. 25. When the curtains rise on the execution chamber, the IV lines can be seen leaving the condemned prisoner, draped across the floor of the chamber and passing through a hole in the wall to the room where the executioners wait. Last statements are made, and then a prison official orders the execution to begin. 26. Three lay-executioners then begin plunging eleven hand-held syringes in a confusing and complicated sequence prescribed by the ODOC protocol. First one drug, then a saline flush, then the next drug, alternating the drugs between the left and right arms. It is not known who, if anyone, directs the sequence of drug administration for the executioners.
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27. The drugs purportedly administered are: Thiopental (to cause unconsciousness);12 Vecuronium Bromide (to cause paralysis and to stop all movement including respiration); and Potassium Chloride (to stop the heart).
28. The putative drugs dosages are: ! 1200 milligrams [“mgs”] Thiopental in the left arm IV line; ! Saline in the left arm IV line; ! 20 mgs Vecuronium Bromide in the right arm IV line; ! Saline in the right arm IV line; ! 100 meqs (milliequivalents) Potassium Chloride in the left arm IV line; and ! Saline in the left arm IV line.
29. The process is then repeated by injecting a second round of drugs: ! 100 meqs Potassium Chloride in the right arm IV line; ! Saline in the right arm IV line. ! 1200 mgs Thiopental in the left arm IV line; ! Saline in the left arm IV line ! 20 mgs Vecuronium Bromide in the right arm IV line; and ! Saline in the right arm IV line.13
30. The process is intended to deliver two doses of Thiopental through the left arm IV line, two doses of Potassium Chloride (one dose in each arm IV line), and two doses of Vecuronium Bromide in the right arm IV line.
12Thiopental is also known as Sodium Pentothal or Sodium Thiopental and will be referred to as Thiopental in this Complaint.
13 Affidavit of Warden Mike Mullin, Jan. 12, 2004. 7

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31. When an electrocardiogram monitor signals the cessation of electrical activity in the heart, a physician manually checks the condemned prisoner and pronounces death.
32. This process recklessly subjects condemned prisoners to significant and utterly unnecessary risks that they will be tortured to death.
C. The Risks of ODOC’s Lethal Injection Process 33. There are a number of risks associated with the ODOC’s execution process which include, but are not limited to, the following: (a) First, in violation of medically approved procedures, the process fails to employ
properly trained persons to carry out what is, in effect, the surgical induction of anesthesia. (b) Second, it arbitrarily and unnecessarily uses drugs and drug dosages that create significant risks that condemned prisoners will suffer completely unnecessary pain during execution. (c) Third, it mandates a sequence of drug administration that delays administration of a portion of the intended anesthetic until after the condemned prisoner is, or should be, dead. (d) Fourth, it delivers drugs through two alternating IV lines, impairing control over the timing and sequence of drug delivery and increasing the risk of drug administration failure. a. Because the Drugs Used to Cause Death Are Painful, it Is
Necessary That Qualified Persons Create and Maintain IV Access to Ensure Adequate Anesthesia 34. The drugs used to cause death in an execution by lethal injection are painful. When a concentrated dose of Potassium Chloride is injected peripherally into the vein of an arm it feels
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like a fire traveling through the vein to the heart. Death by Potassium Chloride poisoning is known to be so excruciating that the American Veterinary Medical Association (“AVMA”) prohibits use of Potassium Chloride as the sole agent of euthanasia and, if it is to be used at all, only used after the subject has reached a surgical plane of anesthesia.
35. When a neuromuscular blocking agent is administered, it paralyzes all voluntary muscles. Respiration is impossible. It locks the recipient in a chemical tomb where he is conscious, but unable to signal distress and unable to breath, and eventually dies by asphyxiation. Death by asphyxiation involves intense, visceral pain and has, as a method of execution, been ruled unconstitutional as violative of the Eighth Amendment.
36. The risks of neuromuscular blocking agents are well known. The AVMA prohibits the use of neuromuscular blocking agents in combination with the barbiturate anesthetics. The State of Oklahoma prohibits the use of curariform neuromuscular blocking drugs in the euthanization of animals.
37. Lethal injection is only humane if an anesthetic is administered which induces unconsciousness before neuromuscular blockers stop respiration and Potassium Chloride stops the heart.
38. Administration of IV anesthesia requires proficiency at achieving and maintaining IV access. But the sources of error are many:
(a) IV catheters must be inserted into a vein and not through the vein into tissue. If a catheter is incorrectly placed, the drugs flowing through the IV lines can infiltrate the tissue surrounding the catheter rather than correctly entering the vein.
(b) In Oklahoma, because two alternating IV lines are used to administer drugs, two separate IV catheters must be inserted and both connections to the condemned 9

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prisoner’s veins maintained throughout the execution process. (c) Once inserted, the catheters are connected with tubing to IV fluid bags. All
mechanical components of the IV system must operate correctly for the drugs to be correctly delivered, but errors commonly occur: IV tubing sometimes leaks or becomes disconnected, or the drugs are introduced to the IV system in the wrong direction, preventing the drugs in the IV line from reaching the patient in the intended concentrations, or from reaching the patient at all. 39. Oklahoma employs unqualified persons to create IV access. The phlebotomists used by the ODOC to insert IV catheters in condemned prisoners are trained to collect blood; they are not competent to administer drugs intravenously and are not expert in the process of inserting and maintaining IV catheters, a fundamentally different and far more difficult task than drawing blood. 40. On information and belief, no one monitors the IV catheters throughout executions, leaving open the possibility that IV catheters can become disconnected throughout the process. 41. In the event that a phlebotomist cannot achieve venous access in a peripheral vein in a hand or arm the ODOC is prepared to create venous access through the invasive and painful processes of inserting a percutaneous central line (tunneling under the skin to reach the subclavian or central vein) or performing a surgical cut down (where a vein is exposed by incision or catheritized). Because these techniques of venous access require much more skill and training and are far more invasive than peripheral vein access, they are normally performed in highly equipped emergency rooms or operating theatres. 42. The ODOC has failed to specify who has performed these procedures in the past (and there has been at least one central line venous access performed) or who will perform them in the future, if necessary, and failed to guarantee that those performing such measures will have the
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requisite training to protect condemned inmates from the unnecessary pain caused by these procedures if they are not performed in the appropriate manner.
43. On information and belief, Oklahoma uses three lay-executioners to plunge eleven hand held syringes in a confusing and complicated sequence to deliver the deadly drugs. The use of untrained persons to plunge syringes risks error in the sequence and rate of drug administration, IV line failures because the executioners cannot observe the IV site and monitor the condition of the IV catheter for things like infiltrations and blowouts and are not trained to interpret things like pressure feedback on the IV lines.
44. Training and experience is essential to the success of the execution as a humane process. The ODOC’s personnel and executioners are not properly trained in the art of administering intravenous drugs.
b. The Chemical Cocktail Chosen by the ODOC Creates an Unnecessary Risk of Flawed Executions Involving Conscious Suffering
45. The ODOC has arbitrarily selected three drugs that unnecessarily risk conscious suffering in the dosages, combinations, and procedures which its executioners use.
46. The first drug, Thiopental, is an ultra-short acting barbiturate which acts to depress the central nervous system to produce unconsciousness and anesthesia. Thiopental derives its utility in surgical procedures from its rapid onset and rapid redistribution through the body at low (surgical) doses. Typically, Thiopental is used in the induction phase of anesthesia to temporarily anesthetize patients for sufficient time to, for example, intubate the trachea. Thiopental is a drug which requires skill to administer and should only be administered by a person qualified in the use of intravenous anesthetics.
47. If it is necessary to maintain a patient in a surgical plane of anesthesia for longer than 11

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just a few minutes, drugs other than Thiopental are typically used. If Thiopental is going to be used not only to induce, but also to maintain, a surgical plane of anesthesia, a qualified person must be present to assure that the Thiopental has been correctly administered and is maintaining the patient in a state of unconsciousness.
48. On information and belief, the ODOC protocol does not require any person to monitor the plane of anesthesia during execution.
49. The ODOC has arbitrarily and needlessly selected a dose of Thiopental that is lower than reliably guarantees a surgical plane of anesthesia for the duration of executions. The probability of inducing unconsciousness with Thiopental is dose dependent. Dosage is, in turn, weight dependent. For example, a 1200 mg dose to a 100-pound man is like a 600 mg dose to a 200pound man. Other jurisdictions in the United States typically employ larger doses of Thiopental than are used in Oklahoma. For example, California administers 5000 mg of Thiopental. Pharmacokinetic studies which model the uptake, distribution, and elimination of a 1200 mg dose of Thiopental on a range of body weights reveal that a 1200 mg dose of Thiopental is low enough to risk consciousness in some condemned prisoners during the course of the execution, even if the drug is fully and effectively delivered.
50. The second drug, Vecuronium Bromide, is a neuromuscular blocking agent and a curariform drug. Neuromuscular blocking agents are used clinically to induce skeletal muscle relaxation to facilitate tracheal intubation or to suppress spontaneous respiration.
51. Neuromuscular blocking agents must be administered with great care because they have no effect on consciousness or the ability to sense and perceive pain. Unless consciousness is assessed before the administration of the neuromuscular blocker, the paralysis induced in the patient will prevent anyone, even a person with advanced medical training, from ascertaining whether a
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patient is awake and capable of experiencing pain. 52. Neuromuscular blocking agents are typically accompanied by product warnings that
require the drugs to be administered by experienced clinicians who are familiar with the drug’s actions and the possible complications of its use and cautioning that the drugs have no known effect on consciousness, pain threshold, or cerebration. Therefore, administration must be accompanied by adequate anesthesia or sedation.
53. The effect of neuromuscular blocking agents in immobilizing patients and masking external indications of their pain is well known. Patients who have been administered neuromuscular blocking agents with inadequate anesthesia have been conscious during surgery and have reported terrifying and torturous experiences where they were alert, experiencing pain, yet utterly immobilized and unable to signal their distress.
54. The consequences of erroneous administration of neuromuscular blocking agents is so profound that at least eighteen states, including Oklahoma, have banned by statute the use of such drugs in the euthanization of animals. The AVMA never permits the use of neuromuscular blocking agents in combination with barbiturate anesthetics. The ODOC has thus settled on a protocol and procedure to kill the State’s condemned prisoners that is considered too risky and dangerous for the euthanization of pets. There is no need to risk the conscious suffocation of these prisoners as a result of the administration of neuromuscular blocking agents. Other drugs are available to satisfy Oklahoma’s statutory requirement for a “paralytic agent” that do not affect respiration. Using these alternate drugs would eliminate the risk that a condemned prisoner will consciously asphyxiate.
55. The third drug, Potassium Chloride, contains essential blood ions and is typically administered in trace amounts as a necessary electrolyte. While a certain potassium level is important for normal cardiac electrical activity, a rapid increase in blood concentration of potassium
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causes cardiac arrest. Injection of concentrated potassium activates sensory nerve fibers, causing severe pain as the drug travels through the venous system. There is universal medical agreement that, without anesthesia, an injection of a Potassium Chloride overdose causes excruciating pain.
56. The American Veterinary Medical Association is so confident that death by Potassium Chloride will cause unnecessary suffering that it prohibits its use as a euthanasia agent unless the practitioner administering the Potassium Chloride has the skill and training to assure that the subject to be euthanized has reached a surgical plane of anesthesia.
57. The Oklahoma statute does not require the administration of Potassium Chloride and the ODOC has arbitrarily and needlessly added Potassium Chloride (which is universally acknowledged to be painful) to the protocol when alternative drugs would serve the statutory function of a paralytic agent.
c. The Order of Drug Administration Reveals the ODOC’s Flawed Understanding of the Execution Process
58. The ODOC protocol delays administration of a second dose of anesthetic agent to condemned prisoners until after the prisoner has been paralyzed by a neuromuscular blocker and twice administered massive overdoses of Potassium Chloride that should already have killed within seconds of reaching the prisoner’s heart. It should be self-evident that anesthetics should be administered before the other drugs in the execution sequence because it is unnecessary to administer them after death. However, the ODOC does not appear to know that the second dose of anesthetic in its process comes too late to alleviate the pain and suffering of the condemned prisoner. The order of drug administration in Oklahoma is arbitrary and capricious, without justification, and unnecessarily risks conscious suffering.
d. The Two-Line IV Method Creates an Unnecessary Risk of Flawed Executions That Result in Conscious Suffering 14

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59. Untrained personnel, the drugs selected, and the order of drug administration, each add to the risk of flawed executions in which prisoners consciously suffer pain. When these factors are combined with the two-line IV method of drug delivery employed by the ODOC, the risks rise exponentially. By using this two-line method of drug delivery, not used by any other state in the nation, the ODOC doubles the risks of IV line failures. Such failures can include, but are not limited to: IV line blockages; infiltrations in which the intravenous injection will diffuse into the surrounding tissue rather than be delivered into the vein; and other similar eventualities that result in an ineffective delivery of one or more of the drugs.
60. There is a grave risk in the ODOC protocol that the right IV line will remain open (effectively delivering the neuromuscular blocker and Potassium Chloride) while the left line is blocked or drug delivery is impeded. These circumstances would create a scenario in which the drug intended to achieve unconsciousness is not effectively delivered and the prisoner will be conscious when he is suffocated by having his respiration stopped and killed by having his heart stopped. There is reason to believe that just such eventualities have occurred during Oklahoma executions.
D. Oklahoma Executions Have Gone Wrong a. Observed IV Line Access Problems
61. The ODOC has failed to achieve successful IV access to condemned prisoners. In 2001, witnesses noticed swelling and bruising on Mr. LaFevers’s left (Thiopental) arm consistent with an IV infiltration which prevented effective delivery of the anesthetic intended to alleviate the inevitable pain accompanying the administration of a neuromuscular blocking agent and Potassium Chloride. The Warden has told the investigator for the Oklahoma Medical Examiner he “knew what went wrong” with Mr. LaFevers’s execution. Attachment B.
62. Autopsy reports show that, on at least seven occasions, executed prisoners have had 15

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multiple acute puncture marks in addition to the IV catheter sites, reflecting that the ODOC has required multiple attempts to achieve venous access. In at least one execution it was impossible to achieve peripheral venous access and a central line was required.
63. IV access irregularities support the conclusions that personnel carrying out executions are inadequately trained and qualified.
b. Failure to Administer All Drugs 64. Autopsy reports reveal at least two cases in which full (unused) syringes of the anesthetic Thiopental have accompanied bodies to the medical examiner’s office. On information and belief, these data indicate that the ODOC has, on several occasions, arbitrarily and unnecessarily failed to administer all of the required and intended dose of Thiopental risking inadequate anesthesia and conscious suffering.
c. Witnesses Reports of Condemned Prisoner Reactions Suggest Inadequate Anesthesia
65. There are many reports of prisoner reaction to the execution process that are inconsistent with the rapid and complete onset and maintenance of anesthesia. As previously discussed, the Carpenter, LaFevers, and Parks executions were accompanied by witness observations of prisoner response to the execution protocol that is inconsistent with effective administration of the execution protocol.
66. Witnesses to other executions also report prisoner comments like “I can taste it” and shaking and convulsions that are also inconsistent with the rapid and complete onset and maintenance of anesthesia.
d. Analytical Data Suggests Inadequate Anesthesia 67. Postmortem Thiopental blood concentrations, in some cases, cannot be reconciled
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with consistent administration of Thiopental and, in some cases, are inconsistent with antemortem unconsciousness.
E. The Defendants and the ODOC Knew, Or Should Have Known, of Executions Involving the Risk of Conscious Suffering Yet Have Failed to Correct the Execution Process to Minimize That Risk
68. The Defendants and the ODOC knew, or should have known, that their execution process is flawed in ways that entail risks of conscious suffering, but have deliberately ignored those risks and failed to make practicable modifications in the process. The ODOC policy statement number OP-090901, dated April 12, 1978 (date issued) and May 1, 1978 (effective date) indicates that the Defendants and the ODOC have been aware since 1978 that adequate IV access is essential to a humane execution, but nevertheless have employed persons unqualified to achieve IV access as part of the execution process and has failed to employ qualified persons to monitor IV access and the plane of anesthesia throughout the execution process.
69. The Defendants and the ODOC knew, or should have known, since 1978 that drugs other than neuromuscular blocking agents or curariform derivatives can serve the statutory requirement of paralytic agents, but have nevertheless continued to employ drugs known to risk conscious suffering.
70. The Defendants and the ODOC knew, or should have known, of botched executions involving risks of conscious suffering, for example, the Carpenter execution, but have nevertheless continued to employ drugs, dosages, chemical combinations, and procedures that risk the needless infliction of conscious suffering. Ron Ward, who was Warden of the Oklahoma State Penitentiary during the Scott Carpenter execution, said that “There was probably more body action with this one
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than I’ve seen”14 and acknowledged that the Carpenter execution took longer than normal. The Warden during Mr. LaFevers’s execution told the investigator for the Oklahoma Medical Examiner he “knew” what went wrong. Attachment B.
F. The Defendants and the ODOC Have Arbitrarily and Capriciously Modified the Execution Processes Subjecting Condemned Prisoners to Risks of Conscious Suffering
71. The Defendants and the ODOC have, since 1990, arbitrarily and capriciously modified the execution processes to change, for example, the drugs used, the drug amounts, number of IV lines used to deliver drugs, and personnel involved, exposing condemned prisoners to risks of conscious suffering.
72. The sum of the available execution data (witness reports, postmortem Thiopental levels, execution duration, weight, and other data) indicate that the ODOC protocol has caused a high frequency of failure to effectively anesthetize condemned prisoners for the duration of executions.
73. Botched executions that risk conscious suffering are the direct and inevitable result of a protocol cobbled together in secret by people who are not qualified to conduct what is essentially the induction of anesthesia. The ODOC protocol is flawed at nearly every turn in that it: (1) orders executioners to take the bizarre step of anesthetizing those who are, or should be, already dead; (2) uses unqualified personnel like phlebotomists to insert IV catheters; (3) uses dangerous and unnecessary drugs (like neuromuscular blockers) in a reckless manner; (4) fails to take the simple step of assuring that a surgical plane of anesthesia and an actual state of unconsciousness have been achieved and will continue for the duration of the execution before
14 Anthony Thornton, After Apologizing, Killer Dies With Calm Dignity, THE DAILY OKLAHOMAN, May 9, 1997, at 9.
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administering painful drugs; (5) administers a dose of Thiopental that is unnecessarily dangerously low; and (6) introduces drugs through two IV lines unnecessarily complicating the execution process and unnecessarily risking harm.
74. The consequence of the ODOC protocol is that people are suffering when they are executed in Oklahoma. They are suffering for more than the transitory period necessarily attendant to any death. People are suffering for prolonged periods as result of completely avoidable problems in protocol and procedure. It is possible to conduct execution by lethal injection in a manner that both complies with Oklahoma’s statute and is humane, but the Defendants and the ODOC have arbitrarily, capriciously, and unnecessarily devised a protocol for carrying out executions by lethal injection that does not do so.
VII. CLAIM 75. Plaintiff realleges and incorporates paragraphs 1 to 74 as if fully set out herein. 76. By subjecting Plaintiff to an arbitrary, capricious and irrational method of execution that creates an unnecessary and significant risk of inflicting agonizing and prolonged pain, and by designing and administering a process under which they will inject Plaintiff with chemicals in amounts, combinations, and by a protocol or protocols that unnecessarily risk conscious suffering and pain in the execution of a sentence of death, Defendants deprive Plaintiff of his rights under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution to be free from cruel and unusual punishment and to be free from arbitrary and capricious processes.
VIII. PRAYER FOR RELIEF 77. Plaintiff realleges and incorporates paragraphs 1 to 77 as if fully set out herein. Wherefore, Plaintiff prays as follows: 78. That this Honorable Court issue a judgment declaring that the Defendants protocols,
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policies, practices, and acts and omissions as described herein violate Plaintiff’s rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States;
79. That this Honorable Court permanently enjoin Defendants, their officers, agents, employees, and successor in office, along with those acting in concert with them, from engaging in the unlawful practices described herein;
80. That this Honorable Court retain jurisdiction over this cause until the Court’s order is carried out; and
81. Any and all other such relief as this Court deems just, proper, and equitable under the circumstances including staying Plaintiff’s execution, if scheduled, until these issues set out here are resolved.
Respectfully submitted this 5th day of June, 2006, by and through,
s/ Scott W. Braden Scott W. Braden Oklahoma Bar No. 1040 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK. 73102 (405) 609-5930 (405) 609-5932 -fax Scott_Braden@fd.org
VERIFICATION I, Scott W. Braden, hereby declare: 1. I am a member of the State Bars of Oklahoma, Florida and California and am admitted to practice before the all of the Federal District Courts of Oklahoma, the United States Court of Appeals for the Ninth, Tenth, Eleventh, and Federal Circuit Court of Appeals, and the United States Supreme Court.
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2. I have reviewed the foregoing complaint. I have personal knowledge of the matters set forth in the complaint, except as otherwise indicated, and could and would competently testify to them if called upon to do so. I verify that all of the alleged facts that are not otherwise supported by citations to the records or declarations attached to the complaint are true and correct to my own knowledge, except as to any matters stated in it on information and belief, which I am informed and believe are true and correct.
I declare under penalty of perjury under the laws of the State of Oklahoma and the United States of America that the foregoing is true and correct.
Executed on this 5th day of June, 2006, in Oklahoma City, Oklahoma. s/ Scott W. Braden Scott W. Braden Oklahoma Bar No. 1040 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK. 73102 (405) 609-5930 (405) 609-5932 Scott_Braden@fd.org
21

 
 Case 5:06-cv-00591-F Document 14 Filed 07/13/2006 Page 1 of 13

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

ERIC ALLEN PATTON,

)

)

Plaintiff,

)

)

vs.

)

)

JUSTIN JONES, in his capacity as Director )

Oklahoma Department of Corrections; )

MARTY SIRMONS, in his capacity as )

Warden, Oklahoma State Penitentiary; and )

UNKNOWN EXECUTIONERS, in their )

capacities as Employees and/or Agents of )

the Oklahoma Department of Corrections, )

)

Defendants.

)

Case No. CIV-06-591-F

MOTION TO DISMISS AND BRIEF IN SUPPORT

Defendants Justin Jones and Marty Sirmons respectfully move the Court to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted because Plaintiff has previously brought this same Eighth Amendment challenge to Oklahoma’s lethal injection protocol before the Oklahoma Court of Criminal Appeal. The Court of Criminal Appeals denied Plaintiff’s Eighth Amendment claims on the merits. Plaintiff’s second attempt to argue the same claims is barred by the doctrines of issue preclusion, claim preclusion and laches.1

1 Defendants respectfully reserve the right to assert a statute of limitations defense at the summary judgment stage. Based on the Court’s rulings in Anderson v. Jones, No. CIV-05-825-F, it would appear that a statute of limitations defense in the context of these proceedings requires examination of factual issues that go beyond the pleadings.

Case 5:06-cv-00591-F Document 14 Filed 07/13/2006 Page 2 of 13
BRIEF IN SUPPORT INTRODUCTION AND STATEMENT OF THE CASE Plaintiff’s First Amended Complaint seeks to enjoin Oklahoma’s lethal injection protocol from being applied to Plaintiff on the grounds that the protocol, as it currently exists, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. (Doc. No. 4-1, Amend. Comp. ¶¶ 2, 76, 79.) Plaintiff also alleges that the procedures and protocols of the Oklahoma Department of Corrections are arbitrary and capricious in violation of the Fifth and Fourteenth Amendments. (Id. ¶¶ 2, 76.) Plaintiff named Justin Jones, the Director of the Oklahoma Department of Corrections, and Marty Sirmons, Warden of the Oklahoma State Penitentiary, as Defendants. While not specifically referencing Ex parte Young, Plaintiff relies on the “Ex parte Young fiction”2 to seek equitable and injunctive relief against the State of Oklahoma. On May 30, 2006, Plaintiff requested the Oklahoma Court of Criminal Appeals to stay his execution. Plaintiff “argue[d] that Oklahoma’s lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment.” (Order, Ex. 1 at 2.) The Court of Criminal Appeals reached the merits of Plaintiff’s Eighth Amendment challenge and denied the challenge. The Court “examined Oklahoma’s lethal injection protocol as it exists today and found it did not constitute cruel and unusual punishment.” (Id.) “Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.” Hill v. McDonough, 126 S.Ct. 2096, 2104 (2006). Plaintiff just finished litigating his Eighth Amendment claims in the Court of Criminal Appeals. He should not be permitted to
2 Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 282 (1997).
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litigate his claims anew in this Court. “The federal courts can and should protect States from dilatory or speculative suits . . . .” Hill, 126 U.S. at 2104 (emphasis added).
HISTORY OF LITIGATION BETWEEN THE PARTIES3 Plaintiff has pursued at least four avenues of relief in which he could have raised the challenges to Oklahoma’s lethal injection protocol that he raises here. First, Plaintiff had a direct appeal of his criminal conviction and sentence. Patton v. State, 973 P.2d 270 (Okla. Crim. App. 1998), cert. denied, 528 U.S. 939 (1999). Second, Plaintiff sought collateral relief in an application for post-conviction relief. Patton v. State, 989 P.2d 983 (Okla. Crim. App. 1999). Third, Plaintiff pursued a habeas corpus action against the Warden of Oklahoma State Penitentiary. Patton v. Mullin, 425 F.3d 788 (10th Cir. 2005), cert. denied, Patton v. Sirmons, 126 S.Ct. 2327 (2006). In all of these proceedings Plaintiff could have, but chose not to, challenge the manner in which his lethal injection sentence would be carried out. Just recently, Plaintiff did raise such a challenge in the Oklahoma Court of Criminal Appeals. On May 30, 2006, Plaintiff filed a pleading entitled “Objection to Setting of Execution Date” in the Court of Criminal Appeals. (Objection, Ex. 2.) The Court of Criminal Appeals construed this as a request for a stay of execution. (Order, Ex. 1.) Plaintiff’s request was based on two grounds. First, Plaintiff sought a stay on the grounds that Oklahoma’s lethal injection protocol constituted cruel and unusual punishment in violation of the Eighth Amendment. (Objection, Ex. 2 at 1.) Second Plaintiff urged a stay because the protocol was being challenged in this Court in Anderson
3 The procedural history discussed in this section is all a matter of public record. Exhibits 1-3 have been certified by the Court of Criminal Appeals. The Court can take judicial notice of each of these pleadings because they are matters of public record. See Tal v. Hogan, __ F.3d __, 2006 WL 1775371, *14 n.24 (10th Cir. June 29, 2006). Defendants attachment of these exhibits does not require this Motion to Dismiss to be converted to a Motion for Summary Judgment. Id.
3

Case 5:06-cv-00591-F Document 14 Filed 07/13/2006 Page 4 of 13
v. Jones, No. CIV-05-825-F (W.D. Okla.). (Objection, Ex. 2 at 13.) Plaintiff provided a detailed description of the protocol to the Court of Criminal Appeals. (Objection, Ex. 2 at 3-8) Plaintiff also provided detailed factual information supporting his contention that the protocol was cruel and unusual, including the affidavit of a purported expert witness opining on Oklahoma’s protocol. (Objection Attach. A-H, Ex. 2.)
Plaintiff later filed a reply clarifying that his request for a stay was not based solely on his intention to file this lawsuit. Rather, he was making a direct Eighth Amendment challenge to the protocol in the Court of Criminal Appeals:
Mr. Patton’s filed civil rights action CIV-06-591-F is not the single basis provided to this Court as a reason not to set an execution date. The underlying Eighth Amendment violation of the Oklahoma Department of Corrections is the reason why this Court should delay setting an execution date. (Reply, Ex. 3 at 2.) Elsewhere in his reply, Plaintiff stated “Mr. Patton is asking this Court to not set an execution which is in violation of the Eighth Amendment until the Department of Corrections amends its lethal injection protocol.” (Id. at 4.) Plaintiff’s final word on the matter was “Until the State of Oklahoma and the Department of Corrections can show this Court it will comply with the Eighth Amendment this Court should not set an execution date which it knows will violate the Constitutional guarantees against cruel and unusual punishment.” (Id. at 6.) The Court of Criminal Appeals construed Plaintiff’s Objection as a request for stay of execution: “Order Denying Request for Stay of Execution and Setting Execution Date.” (Order, Ex. 1.) The Court of Criminal Appeals acknowledged that Plaintiff “argue[d] that Oklahoma’s lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment.” (Order, Ex. 1 at 2.) The Court of Criminal Appeals reached the merits of Plaintiff’s Eighth Amendment challenge. Detailed findings of fact and conclusions of law regarding Plaintiff’s
4

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Eighth Amendment challenge were unnecessary because the Court had just ruled on this same issue
in Malicoat v. State, 2006 OK CR 25, ___ P.3d ____, 2006 WL 1672937 (Ex. 4). In that opinion,
the “Court examined Oklahoma’s lethal injection protocol as it exists today and found it did not
constitute cruel and unusual punishment.” (Order, Ex. 1 at 2.) The Court of Criminal Appeals
specifically reached the merits of Malicoat’s Eighth Amendment challenge (Ex. 4 at 1) and, by
incorporating the Malicoat decision, reached the merits of Plaintiff’s Eighth Amendment challenge
as well. Plaintiff’s request for a stay was denied on the merits.
ARGUMENT
I. Plaintiff’s entire lawsuit is barred by the doctrine of res judicata. “The doctrine of res judicata, or claim preclusion, will prevent a party from relitigating a
legal claim that was or could have been the subject of a previously issued final judgment.” MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005).
Res judicata is “central to the purpose for which civil courts have been established,” namely “the conclusive resolution of disputes within their jurisdictions.” Montana v. United States, 440 U.S. 147, 153 . . . (1979). “[A] party who has had a full opportunity to present a contention in court ordinarily should be denied permission to assert it on some subsequent occasion.” Geoffrey C. Hazard, Res Nova in Res Judicata, 44 S. Cal. L.Rev. 1036, 1043 (1971). This bar protects against “the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana, 440 U.S. at 153-54 . . .. Park Lake Resources Ltd. Liability v. U.S. Dept. Of Agr., 378 F.3d 1132, 1135 (10th Cir. 2004).
Claim preclusion applies when the following three elements are met: “(1) both cases must
involve the same parties or their privies, (2) the claim that is alleged to be barred must have been
presented in the first suit or must be one that could and should have been raised in the first suit, and
(3) the first suit must have resulted in a final judgment on the merits.” Century Indem. Co. v.
5

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Hanover Ins. Co., 417 F.3d 1156, 1158 (10th Cir. 2005). If these factors are present, the claim is precluded unless the party against whom the doctrine is invoked can establish that the previous adjudication did not provide a “full and fair opportunity” to litigate the claim. MACTEC, Inc., 427 F.3d at 831, n.6. To the extent that this Court will look to Oklahoma law to determine the preclusive effect that Oklahoma law would assign to the Court of Criminal Appeal’s Order, Reed v. McKune, 298 F.3d 946, 949 (10th Cir. 2002), Oklahoma applies these same elements to claim preclusion. Feightner v. Bank of Okla., N.A., 65 P.3d 624, 629 (2003) (“Claim preclusion bars relitigation by parties or their privies of issues which either were or could have been litigated in a prior action which resulted in a prior judgment on the merits. In other words, where the two causes of action are the same the first judgment is a complete bar to the second action.”); State ex rel. Okla. Bar Ass'n v. Giger, 93 P.3d 32, 38 (Okla. 2004) (“[C]laim preclusion . . . teaches that a final judgment on the merits of an action precludes the parties from re-litigating not only the adjudicated claim, but also any theories or issues that were actually decided, or could have been decided, in that action.”); Veiser v. Armstrong, 688 P.2d 796, 800, n. 9 (Okla. 1984) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action”).
All four of Plaintiff’s opportunities to bring this challenge involved the same parties or their privies. Plaintiff’s criminal appeal, post-conviction proceedings, and request for a stay of execution before the Oklahoma Court of Criminal Appeals involved Plaintiff and the State of Oklahoma. Plaintiff’s habeas corpus action and the present action both involve Plaintiff and the State of Oklahoma as the real party in interest. Although Plaintiff’s suit is technically brought against the Warden of Oklahoma State Penitentiary and the Director of the Oklahoma Department of Corrections, Plaintiff seeks only equitable relief. (Doc. No. 4-1, Amend. Compl. ¶ 2.) Plaintiff
6

Case 5:06-cv-00591-F Document 14 Filed 07/13/2006 Page 7 of 13
employees the Ex parte Young fiction to side step the State’s Eleventh Amendment immunity. Yet, in practical reality, Plaintiff is seeking equitable relief against the State.4 Cf. Brennan v. Stewart, 834 F.2d 1248, 1252, n. 6 (5th Cir. 1988) “[A]lthough not usually conceptualized as Ex parte Young cases, most of the huge number of habeas claims in the federal courts under 28 U.S.C. § 2254 are effectively suits against the states. These suits pass muster under the Eleventh Amendment because the habeas theory of a civil suit against the bad jailer fits perfectly with the Ex parte Young fiction.”).
Yet, even if this Court determined that, for purposes of res judicata analysis, the State of Oklahoma and Defendants in this lawsuit were not the same parties, Defendants are still in close privity with the State of Oklahoma and any injunction issued in this case would operate against the State. “The legal definition of a person in privity with another, is a person so identified in interest with another that he represents the same legal right. Thus, privity depends mostly on the parties’ relationship to the subject matter of the litigation.” Century Indem. Co. v. Hanover Ins. Co., 417 F.3d 1156, 1159 (10th Cir. 2005) (citations and quotations omitted). The interests of Defendants and the State of Oklahoma are the same. Plaintiff only named Defendants because he cannot name the State of Oklahoma as a Defendant. For res judicata purposes, the parties in this litigation and Plaintiff’s prior litigation are the same.
The second element is also met. In discussing the meaning of “claim” for purposes of res judicata, Oklahoma looks to the case of Retherford v. Halliburton Co., 572 P.2d 966 (Okla. 1977), to supply that definition. See, e.g., State ex rel. Okla. Bar Ass'n v. Giger, 93 P.3d 32, 38 (Okla. 2004); Miller v. Miller, 956 P.2d 887, 897-98 (Okla. 1998). Retherford defined claim as
4 The State of Oklahoma in no way intends this argument to waive its Eleventh Amendment immunity. Defendants are merely pointing out that Ex parte Young is a legal fiction designed to side step the Eleventh Amendment and obtain equitable relief that would, in fact, bind the State even though the State is not an named party.
7

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a legal concept which has no separate existence in the natural order of things. It is what the makers of legal policy, the Legislature and the courts, say it is. It exists to satisfy the needs of plaintiffs for a means of redress, of defendants for a conceptual context within which to defend an accusation, and of the courts for a framework within which to administer justice. Retherford, 572 P.2d at 968. The Retherford opinion provides a greater explanation of what is meant by this definition. According to the Oklahoma Supreme Court, “cause of action” refers to “the transaction, occurrence or wrongful act from which the litigation arises.” Id. Oklahoma “is committed to the wrongful act or transactional definition of a ‘cause of action.’” Id. at 969. Plaintiff’s constitutional challenge to the protocol was presented to the Oklahoma Court of Criminal Appeals. While Plaintiff did not specifically raise his claims that the procedures and protocols of the Oklahoma Department of Corrections are arbitrary and capricious in violation of the Fifth and Fourteenth Amendments, those claims arise out of the same “transaction, occurrence or wrongful act.” Those claims are part of the same cause of action as his Eighth Amendment claim for purposes of Oklahoma’s res judiciata analysis. However, even if they were not, the fact remains that all of Plaintiff’s claims could have and should have been raised in his request to stay execution before the Court of Criminal Appeals. Plaintiff also could and should have raised his claims in the context of his criminal appeal, post-conviction proceedings, and habeas lawsuit. Finally, each of Plaintiff’s four prior adjudications reached a judgment on the merits. Plaintiff’s criminal appeal was finalized in Oklahoma’s Court of Criminal Appeals and the Supreme Court denied certiorari. Patton v. State, 973 P.2d 270 (Okla. Crim. App. 1999), cert. denied, 528 U.S. 939 (1999). Plaintiff’s post-conviction application was finalized by the Court of Criminal Appeals. Patton v. State, 989 P.2d 983 (Okla. Crim. App. 1999). Plaintiff’s habeas lawsuit was finalized in the Tenth Circuit and the Supreme Court denied certiorari. Patton v. Mullin, 425 F.3d
8

Case 5:06-cv-00591-F Document 14 Filed 07/13/2006 Page 9 of 13
788 (10th Cir. 2005), cert. denied, Patton v. Sirmons, 126 S.Ct. 2327 (2006). The merits of Plaintiff’s Eighth Amendment claim were decided by the Court of Criminal Appeals’ final ruling on Plaintiff’s request for a stay of execution. The Court of Criminal Appeals Order was somewhat short, but the Court specifically incorporated its published opinion in Malicoat v. State, 2006 OK CR 25, ___ P.3d ____, 2006 WL 1672937 (Ex. 4). (Order, Ex. 1 at 2 (“[P]ursuant to this Court’s fining in Malicoat, we deny Appellant’s objection to the setting of an execution date and request for a stay of execution.”) By incorporating the Malicoat opinion, the Court made several things very clear. First, the Court determined that it had jurisdiction to consider the Eighth Amendment challenge to the protocol and a request for stay of execution was an appropriate procedure to raise the challenge. Malicoat v. State, 2006 OK CR 25 ¶ 35. Second, the Court made a detailed factual review of the protocol and considered the affidavit of Malicoat’s expert witness opining on Oklahoma’s protocol. Id. ¶¶ 4-5. Third, the Court concluded on the merits that “Oklahoma’s execution protocol is not cruel and unusual.” Id. ¶ 11. By incorporating Malicoat into Plaintiff’s Order, the Court of Criminal Appeals adopted all of these points and the rest of Malicoat. Because Plaintiff received a final judgment in the Court of Criminal Appeals on the merits of his challenge to the protocol, this lawsuit is barred by the doctrine of res judicata.
5
We treat Malicoat's substantive claim, that to set an execution date would subject him to cruel and unusual punishment, as a subsequently filed application for capital post-conviction review. If Malicoat's claim is correct, then his legal sentence will be carried out in an illegal manner, substantially violating both the United States and Oklahoma constitutions. This Court has the authority to consider the merits of an issue which may so gravely offend a defendant's constitutional rights and constitute a miscarriage of justice. In the interests of justice, and considering the importance of the principle of finality of sentences, we reach the merits of Malicoat's claim and deny his request to stay his execution date.
9

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II. Plaintiff is collaterally estopped from relitigating his Eighth Amendment challenge to Oklahoma’s lethal injection protocol. The doctrine of collateral estoppel or issue preclusion is similar to the doctrine of claim
preclusion but presents a separate basis for dismissal. Issue preclusion requires, at a minimum, that the party against whom it is being asserted was either a party to or a privy of a party to the prior action and that the issue subject to preclusion have actually been adjudicated in the prior case in which said issue was necessary or essential to its outcome, but the doctrine does not require the successive causes of action to be the same.
Feightner v. Bank of Okla., N.A., 65 P.3d 624, 629 (2003). “[O]nce 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.” Montana v. United States, 440 U.S. 147, 153 (1979).
Issue preclusion differs somewhat from claim preclusion in that issue preclusion requires that the issue has been decided; whereas claim preclusion applies even if the claim was not raised in the prior litigation as long as it could have been. See B-S Steel Of Kan., Inc. v. Texas Industries, Inc., 439 F.3d 653, 661-62 (10th Cir. 2006) (“In contrast to res judicata, the doctrine of collateral estoppel, also known as issue preclusion, attaches only when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment.”) (citations, quotations and alterations omitted). Claim preclusion requires identical parties (or their privies) whereas, issue preclusion can be invoked by one not party to the initial adjudication as long as the party against whom issue preclusion is invoked was a party to the initial adjudication.
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Both doctrines apply here. For the reasons discussed above, the elements of collateral estoppel are also satisfied; therefore, Plaintiff is collaterally estopped from relitigating his Eighth Amendment challenge. III. Plaintiff’s lawsuit should be dismissed pursuant to the doctrine of laches.
“[E]quity aids the vigilant and not those who slumber on their rights.” Blacks Law Dictionary 875 (6th ed. 1990). “‘In order to prove the affirmative defense of laches, the defendant must demonstrate that there has been an unreasonable delay in asserting the claim and that the defendant was materially prejudiced by that delay.’” Jacobsen v. Deseret Book Co., 287 F.3d 936, 949 (10th Cir. 2002) (quoting Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997)). The period of relevance in determining delay is “the period from when the plaintiff knew (or should have known) of the allegedly infringing conduct” until the lawsuit was filed. Id. “As with other equitable defenses, the existence of laches is a question primarily addressed to the discretion of the trial court.” Mile High Indus. v. Cohen, 222 F.3d 845, 857 (10th Cir. 2000) (citations and quotations omitted).
As described above, Plaintiff has had many, many opportunities to assert the claims he raises now. See Patton v. State, 973 P.2d 270 (Okla. Crim. App. 1998), cert. denied, 528 U.S. 939 (1999); Patton v. State, 989 P.2d 983 (Okla. Crim. App. 1999); Patton v. Mullin, 425 F.3d 788 (10th Cir. 2005), cert. denied, Patton v. Sirmons, 126 S.Ct. 2327 (2006); Order, Ex. 1. This lawsuit amounts to an eleventh hour effort to forestall Plaintiff’s execution. In Hill v. McDonough, 126 S.Ct. 2096 (2006), the United States Supreme Court recognized the potential for Section 1983 to be used as a dilatory tactic in death penalty cases. The Court pointed out that a number of federal courts had already taken action to prevent such abuses: “After Nelson a number of federal courts have invoked their equitable powers to dismiss suits they saw as speculative or filed too late in the day.” Hill, 126
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S.Ct. at 2104. The Court counseled that “[t]he federal courts can and should protect States from dilatory or speculative suits . . . .” Hill, 126 S.Ct. at 2104 (emphasis added).
“Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.” Hill, 126 S.Ct. at 2104. Elsewhere the Supreme Court has stated, “[A] State retains a significant interest in meting out a sentence of death in a timely fashion.” Nelson v. Campbell, 541 U.S. 637, 644 (2004). If Plaintiff were permitted to use this lawsuit to stall his August 29th execution after just litigating the same claims and issues in state court and after having numerous other opportunities to present the same claims and issues in other litigation between the same parties, the State and the victims of Plaintiff’s crime would be materially prejudiced. This Court should invoke its equitable powers to dismiss this lawsuit.
CONCLUSION For the foregoing reasons, Plaintiff’s lawsuit should be dismissed because all of the issues raised here have or should have been raised in Plaintiff’s request to stay his execution that was recently litigated before the Oklahoma Court of Criminal Appeals and or Plaintiff’s other numerous legal challenges.
Respectfully submitted,
s/ Gregory Thomas Metcalfe GREGORY THOMAS METCALFE, OBA #19526 RICHARD N. MANN, OBA #11040 Assistant Attorneys General Oklahoma Attorney General’s Office Litigation Section 4545 N. Lincoln Blvd. Suite260 Oklahoma City, OK 73105-3498 Tele: (405) 521-4274 Fax: (405) 528-1867 Greg_Metcalfe@oag.state.ok.us Richard_Mann@oag.state.ok.us Attorneys for Defendants
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Case 5:06-cv-00591-F Document 14 Filed 07/13/2006 Page 13 of 13 CERTIFICATE OF SERVICE
I hereby certify that on July 13, 2006, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrant:
Scott W. Braden Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK 73102 Attorney for Plaintiff
s/ Gregory Thomas Metcalfe Gregory Thomas Metcalfe
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 Case 5:06-cv-00591-F Document 21 Filed 08/04/2006 Page 1 of 9

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

ERIC ALLEN PATTON,
Plaintiff,
vs.
JUSTIN JONES, in his capacity as Director Oklahoma Department of Corrections, et al.,
Defendants.

) ) ) ) ) Case No. CIV-06-0591-F ) ) ) ) ) )

ORDER Defendants’ “Motion to Dismiss,” filed July 13, 2006, is before the court. (Doc. no. 14.) Plaintiff has responded, and the motion is ready for determination.
I. Background This action is brought by plaintiff, Eric Allen Patton, a prisoner sentenced to death by the State of Oklahoma. Defendants are Justin Jones, sued in his capacity as Director of the Oklahoma Department of Corrections; Marty Sirmons, sued in his capacity as Warden of the Oklahoma State Penitentiary; and unknown executioners who are sued in their official capacities as employees or agents of the Oklahoma Department of Corrections. The action challenges the procedure for carrying out Oklahoma’s statutory method of execution, which is lethal injection. Mr. Patton alleges that defendants and the Oklahoma Department of Corrections have designed a procedure for execution by lethal injection which unnecessarily risks conscious suffering and pain during execution and that the state deliberately ignores and is indifferent to the health and safety of the condemned prisoner. The action is brought pursuant to 42 U.S.C. §1983,

Case 5:06-cv-00591-F Document 21 Filed 08/04/2006 Page 2 of 9
to redress the threatened violations of the right of Mr. Patton to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution, and for Mr. Patton’s right to be free from arbitrary and capricious Department of Corrections procedures and protocols under the Fifth and Fourteenth Amendments to the United States Constitution.
II. Discussion Defendants asks the court to dismiss this action under Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim.1 Defendants contend that this action fails to state a claim for relief because it is barred by the doctrines of claim preclusion (res judicata) and issue preclusion (collateral estoppel), and by laches.
A. Standards The standard for evaluating a motion to dismiss brought pursuant Rule 12(b)(6) is well established. Courts must accept as true all well-pleaded facts and view those facts in the light most favorable to the non-moving party. Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The court must construe the plaintiffs’ allegations liberally because the rules require only general or notice
1Although defendants’ brief references materials from proceedings before the Oklahoma Court of Criminal Appeals in Eric Allen Patton v. State of Oklahoma, D-1996-1460, this court may take judicial notice of those materials and it is therefore not necessary to convert the motion to dismiss to a motion for summary judgment. See, Tal v. Hogan, 2006 WL 1775371, *19 (10th Cir. 2006) (court may take judicial notice of its own files and records as well as facts which are a matter of public record without converting the motion, so long as the documents are only considered to show their contents and not to prove the truth of matters asserted in them); 18 Moore’s Federal Practice §131.50[2] (“Courts will usually permit defenses based on the preclusion doctrines to be raised and determined [under Rule 12(b)(6)] if the grounds for preclusion appear on the face of the complaint or consist of matters of which the court can take judicial notice.”); “Particular Types of Facts Which may be Judicially Noticed,” 12 Fed. Proc., L. Ed. § 33:69 (“Federal courts may take judicial notice of proceedings outside the federal judicial system if the proceedings have a direct relation to the matters at issue. Accordingly, federal courts have taken judicial notice of court records, acts, and proceedings in state court cases....”). There is also good reason to allow the materials without converting the motion here, because all parties rely on the same documents without objection.
-2-

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pleading rather than detailed fact pleading, so as to do substantial justice. United States v. Uvalde Consol. Indp. Sch. Distr., 625 F.2d 547, 549 (5th Cir. 1980). A claim should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
B. Preclusion Doctrines Defendants’ claim preclusion and issue preclusion arguments are based on the contention that the Oklahoma Court of Criminal Appeals recently denied plaintiff’s Eighth Amendment claim on its merits so that this action constitutes a second attempt to argue the same claim.2 In determining whether a state court judgment precludes a subsequent action in federal court, the federal court gives the state court judgment the same preclusive effect as would the courts of the state issuing the judgment. Reed v. McKune, 298 F.3d 946, 949-50 (10th Cir. 2002). As developed by the Oklahoma courts, the central elements of claim and issue preclusion are well known. Feightner v. Bank of Oklahoma, 65 P.3d 624, 629 (Okla. 2003). Claim preclusion bars relitigation by parties or their privies of issues which either were or could have been litigated in a prior action which resulted in a prior judgment on the merits. Id. In other words, where the two causes of action are the same, the first judgment is a complete bar to the second action. Id. Issue preclusion requires, at a minimum, that the party against whom it is being asserted was either a party to or a privy of a party
2Defendants contend that plaintiff has had four prior opportunities to bring this challenge. Defendants describe the four proceedings as a direct appeal of Mr. Patton’s criminal conviction and sentence, an action seeking collateral relief in an application for post-conviction relief, a habeas corpus action against the warden of the state penitentiary, and recent proceedings in the Oklahoma Court of Criminal Appeals after plaintiff filed a document entitled “Objection to Setting of Execution Date” in that court. (Moving brief, pp. 3, 6.) Defendants’ briefing makes clear, however, that it is only the recent proceedings in the Court of Criminal Appeals which defendants argue preclude this action.
-3-

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to the prior action, and that the issue subject to preclusion have actually been adjudicated in the prior case in which the issue was necessary or essential to its outcome, but the doctrine does not require successive causes of action to be the same. Id. As these descriptions make clear, the elements of both doctrines require, at the least, a cause of action (or claim) and a judgment on the merits of that cause of action (or claim).3 Additionally, for either doctrine to apply, the party against whom the doctrine is interposed, or someone in privity with that party, must have had a full and fair opportunity to litigate the claim or critical issue. Id.4
As defendants base their preclusion arguments on the recent proceedings in the Oklahoma Court of Criminal Appeals, the first step in determining whether those proceedings are preclusive, is to determine their precise nature.
Plaintiff’s request for relief in the Court of Criminal Appeals is entitled “Objection to Setting of an Execution Date.” (Moving brief, Ex. 2.) That objection begins as follows: “The State of Oklahoma has requested this Court set an execution date for Eric Allen Patton. Mr. Patton hereby objects to the setting of an execution date for the reasons set forth below.” (Moving brief, Ex. 2, p.1.) The “reasons set forth below,” include the merits of Mr. Patton’s Eighth Amendment challenges to Oklahoma’s execution protocol. Mr. Patton’s reply brief in the Court of Criminal Appeals, apparently filed in response to the State’s response to Mr. Patton’s objections, also addresses the merits of his Eighth Amendment challenge. (See
3For purposes of this order, the court uses the terms “cause of action,” “action,” and “claim,” interchangeably.
4The same elements are recognized in federal case law. See, e.g., MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (claim preclusion elements described under “Tenth Circuit law”); B-S Steel of Kansas, Inc. v. Texas Industries, Inc., 439 F.3d 653, 662 (10th Cir. 2006) (issue preclusion described). As Oklahoma preclusion law and federal preclusion law do not differ in any respects which are material here, the result of defendants’ preclusion arguments is the same under either body of law. The parties appear to agree, as their briefs cite state and federal law.
-4-

Case 5:06-cv-00591-F Document 21 Filed 08/04/2006 Page 5 of 9
moving brief, Ex. 3.) However, Mr. Patton’s briefs before the Court of Criminal Appeals do not ask that court for a ruling on the merits of his Eighth Amendment challenge. Rather, Mr. Patton’s briefs clearly set out his intention to formally allege his Eighth Amendment claim in the instant federal court action, even going so far as to attach his proposed federal complaint and civil cover sheet to his Objection to Setting Execution Date. (Moving brief, Ex. 2, p. 8 and attachment “E.”) As reiterated at the end of his objection, the relief which Mr. Patton requested from the Court of Criminal Appeals was to “deny the request for the setting of an execution date until issues concerning Oklahoma’s lethal injection protocol can be resolved” in the federal courts. (Moving brief, Ex. 2, p. 13 describing pending federal court litigation, p.14 stating request for relief.)
The Court of Criminal Appeals’ two-page order, which denied plaintiff’s objection, suggests that plaintiff’s objection was filed in response to the State’s application to set an execution date.5 After setting out procedural history, the Court of Criminal Appeals’ order describes Mr. Patton’s objections as follows: “In his Objection to the Setting of an Execution Date, Appellant argues that Oklahoma’s lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment. Appellant asserts that pending litigation in the federal courts challenges Oklahoma’s execution protocol, and asks this Court to stay any execution date until that litigation has been resolved.” The order then notes, in a short paragraph, that the Court of Criminal Appeals had recently addressed and rejected “[t]his very claim,” in Malicoat v. State, 2006 OK CR 25, __ P.3d.__. The Court of
5The Court of Criminal Appeals’ order states that “[o]n May 30, 2006, the State of Oklahoma filed an Application for Execution Date with this court. (Moving brief, Ex. 1, p. 2.) That same day, Appellant [Mr. Patton] filed an Objection to Setting of an Execution Date on June 5, 2006.” (Moving brief, Ex. 1, p. 2.) The order goes on to note that the State filed a response to the objection and that Mr. Patton filed a reply to the State’s response. (Moving brief, Ex. 1, p.2.) The correctness of this filing history is not critical to this order.
-5-

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Criminal Appeals order states: “Therefore, pursuant to this court’s finding in Malicoat, we deny Appellant’s objection to the setting of an execution date and request for a stay of execution.” The order concludes by setting an execution date of August 29, 2006. (For all quotations, this paragraph, from the Court of Criminal Appeals’ order, see moving brief, Ex. 1, p. 2.)
Having carefully considered the nature of the proceedings before the Oklahoma Court of Criminal Appeals as reflected in the documents attached to defendants’ motion, this court finds and concludes as follows. To the extent that the merits of Mr. Patton’s Eighth Amendment challenge were raised in the Court of Criminal Appeals, they were raised in briefing, as argument. Plaintiff’s Objection to Setting of Execution Date was an objection to the setting of an execution date and a request to refrain from setting an execution date. The objection was not a petition, or an action, or a lawsuit, or a claim, or a pleading (in the strictest sense of that word), or a cause of action. Cf., 12 O.S. 2001 § 2003 (“A civil action is commenced by filing a petition with the court.”).6
The court further finds and concludes that because there was no cause of action, it necessarily follows that there was no final judgment on the merits of any cause of action. Defendants’ argument that the order which the Court of Criminal Appeals entered actually denied plaintiff’s Eighth Amendment challenge on its merits does not change this court’s conclusions in any respect. Even assuming for purposes of argument that it was the intention of the Court of Criminal Appeals to rule preclusively on the merits of Mr. Patton’s Eighth Amendment claim (an assumption
6Even without an underlying cause of action, the merits of Mr. Patton’s Eighth Amendment challenge were material to the proceedings before the Court of Criminal Appeals and therefore appropriately covered in the briefs. The merits of the Eighth Amendment challenge went to the question of whether Mr. Patton’s objections to the setting of an execution date were merely frivolous or brought only for the purpose of delay.
-6-

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that appears to be dubious at best7), that intention would not change the fact that there was no final judgment on the merits of that issue. The Court of Criminal Appeals could entertain briefs on the issue (which it did), and it could express a view on the issue (which it did), and it could cite its rejection of the same argument in another decision as grounds for denying Mr. Patton’s request to refrain from setting an execution date (which it did). The Court of Criminal Appeals could not, however, preclusively adjudicate the merits of a cause of action which was not before it.
Accordingly, the court determines that the elements necessary for claim preclusion or issue preclusion to operate--which fundamentally include at least a cause of action and a judgment on the merits of that cause of action--are not present here. In the recent proceedings before the Oklahoma Court of Criminal Appeals, there was no underlying cause of action alleging Mr. Patton’s Eighth Amendment challenge to Oklahoma’s method of execution, much less a cause of action which shared any identity with the cause of action alleged in the instant action. Furthermore, the order of the Court of Criminal Appeals which defendants rely upon for preclusive effect was not a final judgment on the merits of Mr. Patton’s Eighth Amendment claim.
One more point requires discussion. Even if the required elements of claim preclusion or issue preclusion were present, the court would still be required to consider whether the parties had a full and fair opportunity to litigate plaintiff’s Eighth Amendment claim in the proceedings before the Court of Criminal Appeals. Once an action is filed and service is effected in Oklahoma’s courts, a panoply of procedural and substantive due process rights are afforded to the parties. These rights include, for example, protections provided by rules of civil procedure, by discovery rules, by
7This court notes the Court of Criminal Appeals’ statement in its order that the issue of whether Oklahoma’s lethal injection protocol violates constitutional limitations on cruel and unusual punishment is an issue which “is being litigated separately in the federal court system....” (Moving brief, Ex. 1, p.2.)
-7-

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the rules of evidence, and by the rules and procedures which govern briefing and the determination of issues in Oklahoma’s various courts including its appellate courts. Because there was no Eighth Amendment cause of action before the Court of Criminal Appeals, many of the rights or protections which apply to the formal adjudication of a cause of action never attached to plaintiff’s Eighth Amendment arguments during the proceedings in that forum.8 For these and other reasons, this court finds and concludes that plaintiff’s Eighth Amendment contentions were not litigated in the Court of Criminal Appeals in the manner required for the application of the preclusive doctrines upon which the defendants rely.
In short, although defendants argue that “[p]laintiff just finished litigating his Eighth Amendment claims in the Court of Criminal Appeals” (moving brief, p.2), this characterization is correct only in the loosest sense of “litigating.” Plaintiff may well have “just finished” arguing his Eighth Amendment claims in the Court of Criminal Appeals. But the criteria which the preclusion doctrines appropriately require to be strictly met before those doctrines will operate as an absolute bar to subsequent litigation are not satisfied by motions or arguments or orders which discuss a claim in the context of a request to set or not set an execution date.
For all of these reasons, any one of which would be a sufficient basis for denial of the motion, the court finds and concludes that neither claim preclusion nor issue preclusion operates here and that defendants’ motion to dismiss on those grounds should be denied.
8For example, protections apply to an application for post-conviction relief under the PostConviction Procedure Act, 22 O.S. § 1080 et seq. Court of Criminal Appeals Rule 9.7 D(6), entitled “Post-Conviction Procedures in Capital Cases,” provides that if controverted, previously unresolved factual issues material to the legality of the applicant’s confinement exist, the Court of Criminal Appeals shall enter an order to the district court that imposed the sentence, designating the issues of fact to be resolved and the method by which the issues shall be resolved.
-8-

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C. Laches Laches is an affirmative defense which requires the asserting party to demonstrate that there has been an unreasonable delay in asserting the opposing party’s claim and that the asserting party was materially prejudiced by that delay. Jacobsen v. Deseret Book Co., 287 F.3d 936, 949 (10th Cir. 2002). The laches defense raises fact questions regarding the existence of any delays, the reasons for any such delays, the prejudice created by any delays, and the balance of equities. These issues cannot be determined on a motion to dismiss. Accordingly, defendants’ motion to dismiss this action based on laches should be denied.
III. Conclusion For all of these reasons, after careful consideration of the parties’ submissions, the record, and the relevant authorities, defendants’ motion to dismiss is DENIED. Dated this 4th day of August, 2006.
06-0591p004(pub).wpd
-9-

 
 Case 5:06-cv-00591-F Document 40

Filed 08/30/2006 PagFe 1IofL11ED
United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS August 25,2006

TENTH CIRCUIT

Elisabeth A. Shumaker Clerk of Court

ERIC ALLEN PATTON,
Plaintiff-Appellant,
v.
JUSTIN JONES, in his capacity as Director, Oklahoma Department of Corrections; MARTY SIRMONS, Warden, Oklahoma State Penitentiary; JOHN DOE, Unknown Executioners in their capacities as Employees and/or Agents of the Oklahoma Department of Corrections,
Defendants-Appellees.

No. 06-6258
(D.C. No. CIV-06-591-F) (W. D. Okla.)

ORDER AND JUDGMENT"
Before HENRY, BRISCOE, and O'BRIEN, Circuit Judges.
Plaintiff Eric Allen Patton, an Oklahoma state prisoner convicted of capital murder, is currently scheduled to be executed by lethal injection on August 29, 2006. Patton filed suit against prison officials under 42 U.S.C. § 1983 arguing

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

Case 5:06-cv-00591-F Document 40 Filed 08/30/2006 Page 2 of 11
that the lethal injection protocol utilized by the State violates the Eighth Amendment's Cruel and Unusual Punishment Clause. In connection with his suit, Patton asked the district court to enjoin defendants from carrying out his execution using the challenged protocol. The district court denied Patton's motion. Patton now appeals from that ruling. Patton has also filed a motion for stay of execution with this court. Exercising jurisdiction pursuant to 28 U .S.C. § 1292(a)(l), we affirm the district court's ruling and deny Patton's motion for stay of execution.
I. In November 1996, Patton was convicted in the District Court of Oklahoma County, Oklahoma, of the first degree malice murder of Charlene Kauer. Patton was subsequently sentenced, in accordance with the jury's recommendation, to death for that conviction. The Oklahoma Court of Criminal Appeals (OCCA) affirmed Patton's murder conviction and death sentence on direct appeal, Patton v. State, 973 P.2d 270 (Okla. Crim. App. 1998), cert denied, 528 U.S. 939 (1999), and subsequently denied Patton's application for post-conviction relief. Patton v. State, 989 P.2d 983 (Okla. Crim. App. 1999). In August of 2000, Patton initiated federal habeas corpus proceedings by filing a 28 U.S.C. § 2254 petition in the United States District Court for the Western District of Oklahoma. The district court denied Patton's petition on April 10, 2003. We affirmed the denial of federal habeas relief on September 21,
2

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Case 5:06-cv-00591-F Document 40 Filed 08/30/2006 Page 3 of 11

2005, Patton v. Mullin, 425 F.3d 788 (10th Cir. 2005), and the Supreme Court denied Patton's petition for writ of certiorari on May 30,2006. Patton v. Sirmons, 126 S.Ct. 2327 (2006). On July 10,2006, the OCCA, acting upon the request of the State of Oklahoma, set Patton's execution date for August 29,2006.
In late February 2006, while his petition for writ of certiorari from his federal habeas action was still pending with the Supreme Court, Patton initiated an administrative grievance proceeding with the defendant prison officials alleging that Oklahoma's lethal injection protocol created a significant and unnecessary risk that an inmate would consciously suffer excruciating pain. After exhausting his administrative remedies, Patton initiated this 42 U.S.C. § 1983 civil action on May 31, 2006. In his complaint, Patton alleged that the lethal injection protocol utilized by defendants, although purportedly designed "to induce death only after a condemned prisoner has been rendered unconscious and unable to experience pain," actually violates the Eighth Amendment by creating an unnecessary risk of "conscious suffering and pain during execution ...." ROA, Doc. 4 at 1. More specifically, the complaint alleges, in pertinent part, that the protocol (a) "fails to employ properly trained persons to carry out what is, in effect, the surgical induction of anesthesia," (b) "arbitrarily and unnecessarily uses drugs and drug dosages that create significant risks that condemned prisoners will suffer completely unnecessary pain during execution," and (c) "delivers drugs through two ... IV lines, impairing control over the timing and sequence of
3

"

Case 5:06-cv-00591-F Document 40 Filed 08/30/2006 Page 4 of 11

drug delivery and increasing the risk of drug administration failure," Id. On July 28, 2006, Patton filed a motion asking the district court to "enter a
preliminary injunction precluding the Defendants from proceeding with [his scheduled] execution ... on August 29, 2006." Id., Doc. 17 at 22. The district court conducted an evidentiary hearing on Patton's motion on August 8, 2006. At the conclusion of the hearing, the district court denied the motion. Patton has since filed a notice of appeal from the district court's order of denial.
On August 25,2006, we granted Patton's request for expedited oral argument by conducting oral argument by telephone with Patton's counsel and counsel for defendants.
II. We review for abuse of discretion a district court's order denying a motion for stay of execution of a state prisoner. Bowersox v. Williams, 517 U.S. 345, 346 (1996). Applying that standard to Patton's appeal, we conclude, for the reasons outlined below, that the district court did not abuse its discretion in denying Patton's motion to preliminarily enjoin his scheduled execution. In its recent decision in Hill v. McDonough, 126 S.Ct. 2096 (2006), the Supreme Court emphasized that filing a § 1983 action challenging the constitutionality of certain aspects of a state's execution protocol by no means "entitle[s] the complainant to an order staying [his] execution as a matter of course." 126 S.Ct. at 2104. That is because "[b]oth the State and the victims of
4

Case 5:06-cv-00591-F Document 40 Filed 08/30/2006 Page 5 of 11
[the] crime have an important interest in the timely enforcement of [the] sentence." Id. Thus, an inmate intending to assert such a challenge generally must file his or her suit in sufficient time to "allow consideration of the merits without requiring entry ofa stay" of execution. Hill, 126 S.Ct. at 2104 (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)).
Here, the district court concluded that Patton failed to abide by this general rule:
This plaintiff has delayed - unnecessarily delayed his quest for injunctive relief from this Court. It was well-established at least two years ago [in Nelson] that he delayed at his peril. There was no legal impediment to his proceeding while his collateral review was pending and I do find that he has not shown any sufficient reason for delaying until March of 2006 the administrative procedure which serves as a predicate for his application now for judicial relief. ROA, Vol. IV at 242-43 Without identifying the precise point at which Patton should have filed his suit, we agree that Patton has failed to act in a timely manner to challenge the constitutionality of Oklahoma's lethal injection protocol. Patton was initially sentenced to death in late 1996, and his unsuccessful attempts to challenge that sentence on direct appeal concluded in 1999. According to the record on appeal, Oklahoma's lethal injection protocol has remained essentially constant since that time. Notwithstanding the constancy of the protocol, however, Patton made no effort to challenge its constitutionality, either via prison administrative proceedings or in a legal action filed in federal court, until more than six years
5

'.

Case 5:06-cv-00591-F Document 40 Filed 08/30/2006 Page 6 of 11

after the completion of his direct appeal, nearly two years after the Supreme Court warned in Nelson that "method-of-execution" challenges should be "brought at such a time as to allow consideration of the merits without requiring entry of a stay," 541 U. S. at 650, and approximately five months after we affirmed the district court's denial of his application for federal habeas relief. I See Gomez v. United States District Court, 503 U.S. 653, 654 (1992) (criticizing inmate for filing "method-of-execution" challenge pursuant to 42 U.S.C. § 1983 more than a decade after the completion of his direct appeal, and shortly before his scheduled execution); White v. Johnson, 429 F.3d 572,574 (5th Cir. 2005) (rejecting as dilatory a "method-of-execution" challenge brought pursuant to 42 U.S.C. § 1983 by inmate who had "been on death row for more than six years").
Our conclusion regarding the timeliness of Patton's suit is not affected by the fact that defendants have revised their protocol after Patton filed suit (once immediately prior to the district court's evidentiary hearing, and a second time after Patton filed this appeal). To be sure, the revised protocol remedies some of the flaws alleged by Patton in his complaint by altering the original sequence of injections, which in turn increases the initial dose of anesthetic an inmate receives, and by setting forth a specific period of time (two and one-half minutes)
I Although Patton has at times alleged that he has been unaware until recently of the precise details of the protocol, his counsel acknowledged during oral argument that she and Patton have known what drugs are used, and the sequence of those drugs, since January of 2004, when those details were described in an affidavit from a Department of Corrections official.
6

'.

Case 5:06-cv-00591-F Document 40 Filed 08/30/2006 Page 7 of 11

that must elapse after injection of the anesthetic and before injection of the paralytic agent. As Patton himself admits in his appellate pleadings, however, the revised protocol "faiJ[s] to address, much less alleviate, the critical flaws" that he alleged existed in the original protocol, including most notably "the absence of qualified personnel to verify the inmate was actually anesthetized before the lethal drugs were administered." Aplt. Br. at 24. Thus, in pertinent part, his constitutional challenges to the revised protocol are identical to his constitutional challenges to the original protocol.2
At bottom, Patton has failed to act in a timely fashion to challenge the constitutionality of Oklahoma's lethal injection protocol. Therefore, we must, as directed by the Supreme Court in Hill and Nelson, apply a strong equitable presumption against staying Patton's scheduled execution.
Armed with that presumption, we have examined the remainder of the record on appeal, giving particular attention to the transcript of the evidentiary

2 We note that Oklahoma adopted lethal injection as its method of execution in 1977. See Okla. Stat. tit. 22, § 1014. The precise protocol for carrying out lethal injections is left to the discretion of the Oklahoma Department of Corrections (ODC). At the time Patton filed this suit, the ODC had most recently revised its protocol as of May 2, 2005 (more than one year prior to Patton filing his suit). The exhibits submitted by Patton during the district court's evidentiary hearing, however, indicate that the protocol used by the ODC has remained largely the same since at least early 1998. The only changes in the protocol since that time appear to have been (a) changes in the precise type of paralytic drug used (the ODC switched from using tubocurarine to succnylcholine in early 2002, and from succnylcholine to vecuronium in early 2003), and (b) the sequencing and timing changes recently implemented in the revised protocol.
7

Case 5:06-cv-00591-F Document 40 Filed 08/30/2006 Page 8 of 11
hearing and the exhibits admitted during that hearing. The district court found, and Patton does not dispute, that under the revised protocol "an EMT or person with similar qualifications and experience in IV insertion" is responsible for, and is capable of, determining that venous access has been successfully accomplished, and that the dosage of anesthetic (thiopental) an inmate now receives (2,400 milligrams) is "extremely likely ... to achieve a deep plane of anesthesia in a 230-pound individual," such as Patton. ROA, Vol. IV at 235. To be sure, the expert witnesses presented by Patton at the evidentiary hearing raised several concerns about the failure of the revised execution protocol to require properly trained personnel to be present during executions (to assess anesthetic depth prior to the injection of the drugs that cause paralysis and cardiac arrest and death, and to remedy any unforeseen problems that may occur), and to specify more precise timing of the injections so as to reduce the likelihood of an inmate being conscious during the latter stages of the procedure. The defendants, however, have allayed this latter concern by revising the protocol during the pendency of this appeal to require the personnel carrying out an execution to wait two and one-half minutes after the injection of the anesthetic before proceeding to inject the remaining two drugs called for in the protocol. 3 See ROA, Vol. IV at 232
3 This information was provided to the court during oral argument by Robert Whittaker, Assistant Attorney General for the State of Oklahoma. Mr. Whittaker further advised the court that, upon the request of Mr. Patton, the defendants would be willing to increase the wait time from two and one-half to
(continued ... ) 8

Case 5:06-cv-00591-F Document 40 Filed 08/30/2006 Page 9 of 11
(district court's finding that "two and a half minutes from the onset of injection [of the anesthetic] is optimal" to achieve the appropriate plane of anesthesia). In light of the district court's findings and the defendants' recent revision to the protocol, we conclude that Patton has failed to establish a "significant possibility of success on the merits" of his Eighth Amendment claims. Hill, 126 S.Ct. at 2104. In reaching this conclusion, we agree with the district court that the critical question in this case "is not what is optimally desirable," as, for example, in a surgical setting, but rather "what is minimally required" to avoid a violation of the Eighth Amendment. ROA, Vol. 4 at 239; see generally Gregg v. Georgia, 428
u.s. 153, 173 (1976) (holding that punishments are cruel when they "involve the
unnecessary and wanton infliction of pain"); In re Kemmler, 136 U.S. 436, 447 (1890) (holding that "[p]unishments are cruel when they involve torture or a lingering death"). Thus, we conclude there is nothing in the record sufficient to overcome the presumption created by Patton's late filing of his § 1983 action.
Patton's request for expedited oral argument is GRANTED. Patton's motion for stay of execution is DENIED. The order of the district court denying Patton's motion to preliminarily enj oin his scheduled execution is AFFIRMED. Patton shall have until 9 a.m., Mountain Standard Time, on Monday, August 28, 2006, in which to file a petition for rehearing en banco
\ ... continued) three minutes.
9

. . Case 5:06-cv-00591-F Document 40 Filed 08/30/2006 Page 10 of 11
• 06-6258, Patton v. Jones, et al. HENRY, J., concurring. I fully join this order and judgment which concludes that the district court did not abuse its discretion in denying this injunction. I note only that introduction into the protocol of an anesthesiologist, nurse anesthetist, or other adequately trained medical personnel, though not constitutionally required under our current precedent and present knowledge of science, merits thoughtful consideration by the state.

Case 5:06U-cnvi-t0e0d59S1ta-Ftes CDooucrutmoef nAtp4p0eals Ffoiler dth0e8T/3e0n/2th00C6ircuPiat ge 11 of 11

OFFICE OF THE CLERK

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80257

Elisabeth A. Shumaker

(303)844-3157

Douglas E. Cressler

Clerk of Court

Chief Deputy Clerk

August 28, 2006

Mr. Robert D. Dennis Clerk united States District Court for the W. District of Oklahoma 200 NW Fourth street Room 1210 united States Courthouse Oklahoma City, OK 73102

Re:

06-6258, Patton v. Jones, et al.

Dist/Ag docket: CIV-06-591-F,

Dear Mr. Dennis:
Enclosed for the clerk of the trial court or the named agency, is a certified copy of the order and judgment filed in this case which is issued as the mandate of this court. See Fed. R. App. P. 41(a). Please file it in the records of your court or agency.

Please contact this office if you have questions.
Sincerely,
Elisabeth A. Shumaker Clerk, Court of Appeals
By: J;iJJQ2wt'"t,L/l'-Deputy Clerk
clk:va
cc: Susan M. Otto, Fed. Public Defender William P. Earley, Asst. FPD Gregory Thomas Metcalfe Richard N. Mann Robert Whittaker

 
 Case 5:06-cv-00591-F Document 41 Filed 08/30/2006 Page 1 of 1

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

ERIC ALLEN PATTON, Plaintiff,
-vsJUSTIN JONES, Director, et al.,
Defendants.

) ) ) ) ) Case No. CIV-06-591-F ) ) ) )

ADMINISTRATIVE CLOSING ORDER
It appearing that the issues in this case have become moot, it is ordered that the Clerk administratively terminate this action in his records without prejudice to the rights of the parties to reopen the proceedings for good cause shown, for the entry of any stipulation or order, or for any other proper purpose.
If no party has moved to reopen this case within 30 days of this date, the action shall be deemed to be dismissed. Neither this order nor the deemed dismissal referred to in the preceding sentence shall constitute an adjudication on the merits.
Entered this 30th day of August, 2006.

06-0591p008.wpd

 
 CM/ECF LIVE - U.S. District Court:okwd - Docket Report

https://ecf.okwd.uscourts.gov/cgi-bin/DktRpt.pl?789735741245983-L_...

87BC, CLOSED, _BG
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:06-cv-00591-F

Patton v. Jones et al Assigned to: Honorable Stephen P. Friot Cause: 42:1983 Prisoner Civil Rights Plaintiff Eric Allen Patton
V. Defendant

Date Filed: 05/31/2006 Date Terminated: 08/30/2006 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Scott W Braden Federal Public Defender-OKC 215 Dean A McGee Ave Suite 109 Oklahoma City, OK 73102 405-609-5930 Fax: 405-609-5932 Email: scott_braden@fd.org TERMINATED: 07/25/2006
Susan M Otto Federal Public Defender-OKC 215 Dean A McGee Ave Suite 109 Oklahoma City, OK 73102 405-609-5930 Fax: 405-609-5932 Email: susan_otto@FD.ORG ATTORNEY TO BE NOTICED
William P Earley Federal Public Defender-OKC 215 Dean A McGee Ave Suite 109 Oklahoma City, OK 73102 405-609-5930 Fax: 405-609-5932 Email: william.earley@fd.org ATTORNEY TO BE NOTICED

1 of 6

9/11/2007 10:53 AM

CM/ECF LIVE - U.S. District Court:okwd - Docket Report
Justin Jones Director
Defendant Warden Marty Sirmons
Defendant John Doe Unknown Executioners as Employees/Agents of DOC

https://ecf.okwd.uscourts.gov/cgi-bin/DktRpt.pl?789735741245983-L_...
represented by Gregory T Metcalfe Attorney General's Ofc-LINCOLN-OKC 4545 N Lincoln Blvd Suite 260 Oklahoma City, OK 73105-3498 405-521-4274 Fax: 405-528-1867 Email: greg_metcalfe@oag.state.ok.us ATTORNEY TO BE NOTICED
Richard N Mann Attorney General's Ofc-LINCOLN-OKC 4545 N Lincoln Blvd Suite 260 Oklahoma City, OK 73105-3498 405-521-4274 Fax: 405-528-1867 Email: richard_mann@oag.state.ok.us ATTORNEY TO BE NOTICED
Robert L Whittaker Attorney General's Ofc-OKC 313 NE 21st St Oklahoma City, OK 73105 405-521-3921 Fax: 405-522-4534 Email: fhc.docket@oag.state.ok.us ATTORNEY TO BE NOTICED
represented by Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
Robert L Whittaker (See above for address) ATTORNEY TO BE NOTICED

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Date Filed 05/31/2006 05/31/2006 06/05/2006 06/05/2006 06/20/2006
06/21/2006 06/21/2006 06/21/2006 06/23/2006 06/28/2006 07/13/2006 07/13/2006

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Docket Text

1 COMPLAINT against Justin Jones, Marty Sirmons, John Doe, filed by Eric Allen Patton. (Attachments: # 1 Affidavit Eric Allen Patton# 2 Civil Cover Sheet)(db, ) (Entered: 05/31/2006)
2 MOTION for Leave to Proceed in forma pauperis by Eric Allen Patton. (Attachments: # 1 Attachment IFP)(db, ) (Entered: 05/31/2006)
3 ORDER REASSIGNING CASE. Case reassigned to Judge Stephen P. Friot for all further proceedings. Judge Vicki Miles-LaGrange no longer assigned to case. Signed by Judge Vicki Miles-LaGrange on 6/5/2006. (ks) (Entered: 06/05/2006)
4 AMENDED COMPLAINT against all defendants, filed by Eric Allen Patton. (Attachments: # 1 Attachment 1 - Grievance Denial)(Braden, Scott) (Entered: 06/05/2006)
5 ORDER granting 2 Motion for Leave to Proceed in forma pauperis. By 7/24/06, plf shall pay an initial partial filing fee of $19.18. Unless by the date specified plf has either (1) paid the initial partial filing fee, or (2) shown cause in writing for the failure to pay, this action will be subject to dismissal w/o prejudice to refiling & no fees or costs will be imposed or collected. After pymt of the initial partial filing fee, plf shall make monthly payments of 20 percent of the preceding month's income credited to his prison account(s) until he has paid the total filing fee of $350. After pymt of the initial partial filing fee, the ct will enter an order directing the agency having custody of plf to collect & forward such monthly pymts to the clerk each time plf's institutional acct balance(s) exceed(s) $10.00, until the filing fee is paid in full. Interference by plf in the submission of these funds to the ct shall result in dismissal of this action. Such monthly pymts will continue to be collected until full payment of the filing fee has been received by the ct, even after disposition of the case & regardless of whether relief is granted or denied. Signed by Judge Stephen P. Friot on 6/20/06. (llg) (Entered: 06/20/2006)
6 PRAECIPE for two Summonses by Eric Allen Patton. (Braden, Scott) (Entered: 06/21/2006)
Summons Issued as to Justin Jones, Marty Sirmons. Summons placed in FPD's box in court clerk's office. (kw, ) (Entered: 06/21/2006)
8 Receipt for Money Received from Eric Allen Patton in the amount of $350.00, receipt number 116944. (lb) (Entered: 06/27/2006)
7 SUMMONS Returned Executed by Eric Allen Patton. Justin Jones served on 6/23/2006. (Braden, Scott) (Entered: 06/23/2006)
9 SUMMONS Returned Executed by Eric Allen Patton. Marty Sirmons served on 6/27/2006. (Braden, Scott) (Entered: 06/28/2006)
10 ENTRY of Appearance by William P Earley on behalf of Eric Allen Patton (Earley, William) (Entered: 07/13/2006)
11 ENTRY of Appearance by Susan M Otto on behalf of Eric Allen Patton (Otto, Susan) (Entered: 07/13/2006)

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07/13/2006 07/13/2006 07/13/2006
07/25/2006 07/25/2006 07/28/2006
07/28/2006 08/01/2006 08/03/2006 08/04/2006 08/07/2006 08/07/2006 08/07/2006
08/08/2006

12 ENTRY of Appearance by Richard N Mann on behalf of Justin Jones, Marty Sirmons (Mann, Richard) (Entered: 07/13/2006)
13 ENTRY of Appearance by Gregory T Metcalfe on behalf of Justin Jones, Marty Sirmons (Metcalfe, Gregory) (Entered: 07/13/2006)
14 MOTION to Dismiss and Brief in Support by Justin Jones, Marty Sirmons. (Attachments: # 1 Exhibit 1 - Order Denying Request for Stay of Execution# 2 Exhibit 2 Part A - Objection to Setting of an Execution Date# 3 Exhibit 2B Ojection to Setting of an Execution Date# 4 Exhibit 3 - Reply to State's Response to Objection# 5 Exhibit 4 - OSCN Document)(Metcalfe, Gregory) (Entered: 07/13/2006)
15 MOTION to Withdraw as Attorney by Eric Allen Patton. (Braden, Scott) (Entered: 07/25/2006)
16 ORDER granting 15 Motion to Withdraw as Attorney. Attorney Scott W Braden terminated. Signed by Judge Stephen P. Friot on 7/25/06. (llg) (Entered: 07/25/2006)
17 MOTION for Preliminary Injunction by Eric Allen Patton. (Attachments: # 1 Attachment 1 - Boltz Transcript# 2 Attachment 2 - Declaration of Danny Hooks# 3 Attachment 3 - Affidavit of Janet Chesley# 4 Attachment 4 - Affidavit of Mary Burden# 5 Attachment 5 - Declaration of Thomas Henthorn# 6 Attachment 6 Declaration of Mark Heath# 7 Attachment 6 - Exhibits 1-8# 8 Attachment 6 Exhibits 9-11# 9 Attachment 6 - Exhibit 12 part 1# 10 Attachment 6 - Exhibt 12 part 2# 11 Attachment 6 - Exhibits 13-18)(Otto, Susan) (Entered: 07/28/2006)
18 MEMORANDUM in Opposition to Defendants' Motion to Dismiss for Failure to State a Claim filed by Eric Allen Patton. (Earley, William) (Entered: 07/28/2006)
19 ORDER Setting Hearing on 17 MOTION for Preliminary Injunction: Motion Hearing set for 8/8/2006 09:00 AM in Courtroom #305 before Honorable Stephen P. Friot. Signed by Judge Stephen P. Friot on 8/1/06. (llg) (Entered: 08/01/2006)
20 ENTRY of Appearance by Robert L Whittaker on behalf of Justin Jones, Marty Sirmons (Whittaker, Robert) (Entered: 08/03/2006)
21 ORDER denying 14 Defendants' Motion to Dismiss. Signed by Judge Stephen P. Friot on 8/4/06. (llg) (Entered: 08/04/2006)
22 MOTION for Protective Order and Brief in Support by Justin Jones, Marty Sirmons. (Mann, Richard) (Entered: 08/07/2006)
23 OBJECTIONS To Plaintiff's Motion for Preliminary Injunction filed by Justin Jones, Marty Sirmons. (Mann, Richard) (Entered: 08/07/2006)
24 ORDER Resetting Hearing on 17 MOTION for Preliminary Injunction: Motion Hearing reset for 8/8/2006 10:00 AM in Courtroom #305 before Honorable Stephen P. Friot. Signed by Judge Stephen P. Friot on 8/7/06. (llg) (Entered: 08/07/2006)
25 Minute Entry for proceedings held before Judge Stephen P. Friot: Motion Hearing held on 8/8/2006 re 17 MOTION for Preliminary Injunction filed by Eric Allen Patton. Plf does not appear. Plf-Dft make opening stmts. Plf presents case

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08/10/2006 08/14/2006
08/14/2006 08/14/2006 08/14/2006
08/14/2006 08/14/2006 08/15/2006 08/15/2006 08/15/2006 08/16/2006 08/18/2006 08/22/2006

w/testimony of witnesses & rests. Plf Exs. 1-12 admitted (Plf Ex. 9 is received under seal). Dft Ex. 6 admitted. Dft's mtn that Plf's Mtn for Preliminary Injunction be denied is GRANTED. 17 Plf's Mtn for Preliminary Injunction is DENIED, for the reasons set forth in detail on the record.(Court Reporter Tracy Washbourne.) (llg) (Entered: 08/08/2006)
26 TRANSCRIPT Order Form by Eric Allen Patton that transcripts are necessary. See order form for dates and proceedings. Estimated completion date August 14, 2006. (dl, ) (Entered: 08/11/2006)
27 MOTION for Leave to Appeal in forma pauperis / Without Full Prepayment of the Filing Fee by Eric Allen Patton. (Attachments: # 1 Attachment 1 - Application to Proceed In Forma Pauperis, Supporting Documentation and Order)(Earley, William) (Entered: 08/14/2006)
28 NOTICE OF APPEAL by Eric Allen Patton. (Otto, Susan) (Entered: 08/14/2006)
29 TRANSCRIPT of Proceedings held on 8/8/06 before Judge Stephen P Friot. Court Reporter: Tracy Washbourne. Transcript of: Preliminary Injunction. Volume: 1 of 1. (lb) (Entered: 08/14/2006)
30 EXHIBITS Admitted into Evidence at Preliminary Injunction Hearing Held on 8/8/06. (Attachments: # 1 Plaintiff's Ex 1# 2 Plaintiff's Ex 2# 3 Plaintiff's Ex 3# 4 Plaintiff's Ex 4# 5 Plaintiff's Ex 5# 6 Plaintiff's Ex 6# 7 Plaintiff's Ex 7# 8 Plaintiff's Ex 8# 9 Plaintiff's Ex 9 (SEALED)# 10 Plaintiff's Ex 10# 11 Plaintiff's Ex 11# 12 Plaintiff's Ex 12# 13 Defendant's Ex 6)(lb) (Entered: 08/14/2006)
31 SEALED DOCUMENT - Plaintiff's Ex 9 Admitted into Evidence at Preliminary Injunction Hearing held on 8/8/06. (lb) (Entered: 08/14/2006)
32 ORDER granting 27 Motion to Proceed on Appeal Without Full Prepayment of the Filing Fee. Signed by Judge Stephen P. Friot on 8/14/06. (llg) (Entered: 08/14/2006)
33 ENTER ORDER striking as moot 22 Defendants' Motion for Protective Order. Entered at the direction of Judge Stephen P. Friot on 8/15/06. (llg) (Entered: 08/15/2006)
34 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 28 Notice of Appeal. (lb) (Entered: 08/15/2006)
35 DESIGNATION of Record on Appeal by Eric Allen Patton re 28 Notice of Appeal (Earley, William) (Entered: 08/15/2006)
Docket Annotation: Record on Appeal complete and transmitted to the 10th Circuit Court of Appeals. (lb) (Entered: 08/16/2006)
36 ANSWER to Amended Complaint Affirmative Defenses by Justin Jones, Marty Sirmons.(Metcalfe, Gregory) (Entered: 08/18/2006)
39 USCA Appeal Fees received in the amount of $ 19.18 receipt number 117856 remaining balance is $ 435.82; re 28 Notice of Appeal filed by Eric Allen Patton, (dl, ) (Entered: 08/23/2006)

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08/23/2006 08/23/2006 08/23/2006 08/30/2006 08/30/2006
08/30/2006 08/30/2006

37 USCA Case Number 06-6258 for 28 Notice of Appeal filed by Eric Allen Patton,. (dl, ) (Entered: 08/23/2006)
Docket Annotation: Document 37 will be refiled due to an clerical error (dl, ) (Entered: 08/23/2006)
38 USCA Case Number 06-6258 for 28 Notice of Appeal filed by Eric Allen Patton,. (dl, ) (Entered: 08/23/2006)
40 MANDATE From USCA - Patton's motion to preliminarily enjoin his scheduled exection is AFFIRMED 28 Notice of Appeal filed by Eric Allen Patton, (dl, ) (Entered: 08/30/2006)
41 ADMINISTRATIVE CLOSING ORDER: It appearing that the issues in this case have become moot, this action is administratively terminated without prejudice to the rights of the parties to reopen for entry of any stipulation or order. If not reopened within 30 days, action is deemed dismissed. Neither this order nor the deemed dismissal referred to in the preceding sentence shall constitute an adjudication on the merits. Signed by Judge Stephen P. Friot on 8/30/06. (llg) (Entered: 08/30/2006)
42 Docket Annotation: Due to an clerical error the docket text for Document 40 is incorrect and will be refiled (dl, ) (Entered: 08/30/2006)
43 MANDATE From USCA - The order of the district court denying Patton's motion to preliminarily enjoin his scheduled exection is AFFIRMED 28 Notice of Appeal filed by Eric Allen Patton, (dl, ) (Entered: 08/30/2006)

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 Patton v. Jones, 548 U.S. 936 (2006)

127 S.Ct. 28 Supreme Court of the United States
Eric Allen PATTON, petitioner, v.
Justin JONES, Director, Oklahoma Department of Corrections, et al.
No. 06-6151 (06A232). | Aug. 29, 2006.
Case below, 193 Fed.Appx. 785.

Opinion
Application for stay of execution of sentence of death presented to Justice BREYER and by him referred to the Court denied. Petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit denied.
Parallel Citations 127 S.Ct. 28 (Mem), 165 L.Ed.2d 1008, 75 USLW 3093
	  

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