IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
FRANKFORT DIVISION

____________________________________

)

BRIAN KEITH MOORE,

)

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON,

)

Warden, Kentucky State

)

Penitentiary, Eddyville Kentucky, )

)

SCOTT HAAS

)

Medical Director for the

)

Kentucky Department of Corrections )

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

)

and,

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

No. 3:06-cv-00022-KKC CAPITAL CASE

SECOND NOTICE OF SUPPLEMENTAL INFORMATION Brian Keith Moore files this notice of supplemental authority to bring to this Court’s attention the problems that occurred during the execution of Joseph Clark on

May 2, 2006,1 which will likely occur here if Defendants are allowed to execute Moore with their current chemicals and procedures for carrying out lethal injections.
Rather than causing death within a matter of ten minutes, as should occur with lethal injections, it took one hour and twenty-six minutes to execute Clark. The execution team, which included a paramedic, spent more than twenty minutes attempting to insert an I.V. into Clark’s veins. After finally getting an I.V. line inserted into one part of Clark’s body, they gave up trying to insert a second I.V. line and began injecting the lethal injection chemicals.
At first, Clark was extremely still, with shallow breathing. He appeared to have fallen asleep. But after about three or four minutes, he raised his head and said “it don’t work.” The Ohio Department of Corrections closed the curtains so the witnesses could not see what had happened.
What had happened was that after the chemicals began to flow, Clark’s vein had collapsed. As a result, the chemicals, which began to impact his body, stopped serving its intended function, as they flowed into other parts of the body causing pain but not rendering him unconscious or causing his death. Thus, the execution team had to stop injecting the chemicals and insert a new I.V. line.
The execution team then spent approximately 40 minutes attempting to reinsert an I.V. into Clark, possibly resorting to a cut-down procedure (using a scalpel to cut about five inches into the body of a conscious person to insert an I.V. directly into the vein). The curtains reopened between 11:12 a.m. and 11:17 a.m. to show Clark succumbing to the chemicals. But even then, there were problems. Clark raised his head about a dozen times and appeared to try to speak. Finally, he appeared to stop breathing at 11:23 a.m.
1 Attached to this pleading are newspaper articles describing Clark’s execution.
2

He was pronounced dead at 11:26 a.m., one hour and twenty six minutes after the execution began. Throughout the attempts to insert an I.V. and the injections of the chemicals, Clark was heard moaning and groaning in pain.
The Ohio Department of Corrections attributes the problems with Clark’s execution to the fact that he had a history of intravenous drug abuse that damaged his veins. Like Clark, Moore has damaged veins, mainly due to drug abuse. Thus, the problems that occurred with Clark’s execution will likely occur if Defendants are allowed to execute Moore with the chemicals and procedures they intend to use. The likelihood of this is even greater than it was with Clark, because Defendants have already had trouble inserting needles into Moore, because Moore suffers from cardiovascular disease and diabetes, and because Moore weighs 340 pounds. As the Clark execution shows, even if Defendants are able to get an I.V. into Moore, there is a likelihood that Moore’s vein will collapse during his execution.
3

RESPECTFULLY SUBMITTED,

__________________________ DAVID M. BARRON Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
____________________________ MARGUERITE NEILL THOMAS Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

___________________________ SUSAN J. BALLIET Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

May 3, 2006

4

CERTIFICATE OF SERVICE
I hereby certify that on this date, I caused a true and correct copy of the foregoing
SECOND NOTICE OF SUPPLEMENTAL INFORMATION
and accompanying exhibits to be served via first class mail, postage prepaid on the following individuals:
Hon. Jeff Middendorf General Counsel Department of Corrections 2439 Lawrenceburg Road P. O. Box 2400 Frankfort, Kentucky 40602
Hon. David Smith Assistant Attorney General 1024 Capital Center Drive Frankfort, Kentucky 40601
Hon. Jim Deckard General Counsel Office of the Governor The Capital 700 Capital Avenue Frankfort, Kentucky 40601

May 3, 2006.

______________________________ COUNSEL FOR PLAINTIFF

5

 
 Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 1 of 14

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

FRANKFORT DIVISION

’ &,,’ @sTR!$~~f?RT LEsALi.EF GR 4 ~ ~ ~ O ~ r
CLERKUS

BRIAN KEITH MOORE,

V.

JOHN D. REES,

Commissioner, Kentucky Department of Corrections,)

Frankfort, Kentucky

1

THOMAS SIMPSON, Warden, Kentucky State Penitentiary, Eddyville Kentucky, )

SCOTT HAAS

1

Medical Director for the

1

Kentucky Department of Corrections )

1

ERNIE FLETCHER,

1

Governor of the Commonwealth )

of Kentucky

and,

1

1

UNKNOWN EXECUTIONERS,

1

1

Defendants.

CIVIL ACTION # 5’ 06 f-’ d-
KCKC‘
CAPITAL CASE

MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION BARRING DEFENDANTS
FROM SCHEDULING AND CARRYING OUT PLAINTIFFS’ EXECUTION DURING THE PENDENCY OF THIS LITIGATION
AND CONSOLIDATED MEMORANDUM IN SUPPORT

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 2 of 14
1. Pursuant to Rule 65 of the Federal Rules of Civil Procedure, and the All Writs Act, 28 U.S.C. Q 1651, Plaintiff Moore respectfully requests a temporary restraining order and preliminary injunction barring Defendants from scheduling and/or carrying out his execution during the pendency of this litigation challenging the means of effectuating Moore’s sentence of death by lethal injection.’
2. Moore is neither seeking to prevent his execution nor to prevent Defendants from executing him by lethal injection.
3. Moore requests oral argument on this motion. 4. Plaintiff Moore has not yet completed his federal challenge to his conviction and sentence. Plaintiff Moore’s petition for a writ of certiorari to the United States Court of Appeals for the Sixth Circuit is not due until late May. Defendants have signaled their intent to execute Moore before he can finish litigating his federal habeas corpus proceedings, let alone this challenge to Kentucky’s lethal injection chemicals and procedures. Unless the Supreme Court of the United States or this Court intervenes, Defendants could execute Moore in a few months or less. Defendants are aware of the current time constraints, and are acting deliberately. 5. Moore has severely damaged veins. In his complaint: Moore argues 1) that the means for inserting an I.V., particularly in light of his damaged veins, creates an unnecessary risk of pain and suffering; 2) that the use of the second chemical, pancuronium bromide, violates evolving standards of decency; 3) that the failure to
’ For purposes of this litigation, Moore concedes that lethal injection is constitutional. He only challenges
particular aspects of Defendants’ procedures for carrying out lethal injections. Plaintiff incorporates by reference the Complaint for Injunctive and Declaratory Relief, and the
memoranda of law in support thereof with its accompanying exhibits.
2

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 3 of 14
administer an analgesic creates an unnecessary risk of pain and suffering; 4) that each of Kentucky’s lethal injection chemicals creates an unnecessary risk of pain and suffering because the chemicals could be replaced by chemicals that pose less risk; 5) that the manner of injecting the chemicals and the lack of training and credentials of the execution team creates an unnecessary risk of pain and suffering; 6) that the failure to adequately monitor for consciousness after the first and second chemicals have been administered creates an unnecessary risk of pain and suffering; 7) that the failure to maintain the proper equipment to render life-preserving medical treatment if a stay of execution is granted after the first and second chemical have been administered deprives Plaintiff of due process; 8) that Defendants’ failure to take corrective measures despite being aware of the risks associated with their chemicals and procedures constitutes deliberate indifference, in violation of the Eighth Amendment to the United States Constitution; and, 9) that Moore’s physical condition, including his bad veins heightens the risk of pain and suffering that will result from one through eight above. Each of these weighty issues deserves h l l consideration by this Court. Full consideration will be difficult if not impossible if Defendants attempt to carry out Moore’s execution during this litigation.
6. Defendants are aware that the standard for granting injunctive relief is not synonymous with the standard for determining the merits of the claim, i.e., a person can have a meritorious claim but not satisfy the stricter requirements for injunctive relief that exist once a warrant has been issued. See Nelson v. Campbell, 541 U.S. 637 (2004). Therefore, Defendants will seek an execution warrant to try to avoid the merits of Moore’s claim, and drag this Court into a fight over whether Moore can satisfy the
3

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 4 of 14
requirements for a temporary restraining order or preliminary injunction. They will try to kill Moore to prevent this Court from reaching the merits of this litigation.
7. As they did in similar state court litigation, Defendants will attempt to schedule Moore’s execution during this litigation to prevent this Court from deciding the
merits of this 42 U.S.C. 0 1983 lawsuit. Thomas Clyde Bowling filed a challenge to
lethal injection in state court in August of 2004, while his federal habeas petition for a writ of certiorari was pending in the Supreme Court of the United States. In October 2004, despite the fact that lethal injection litigation had progressed for more than two months, Defendants requested an execution date for Bowling. His execution was scheduled for November 30,2004. Once the execution was scheduled, the Defendants in Bowling’s case argued that they could not continue the discovery process in the lethal injection litigation because they were too busy preparing to execute Bowling. Thus, the litigation over the chemicals and procedures used in Kentucky lethal injections turned into a battle over whether Bowling would be alive long enough for the court to decide the weighty issues before it. Defendants will do the same thing in Moore’s case.
8. A pending petition for a writ of certiorari or the opportunity to file a certiorari petition does not prevent the scheduling of an execution or even stay an execution already scheduled. Defendants could schedule Moore’s execution today, tomorrow, or at any other time during the pendency of this litigation.
9. To preserve the ability to reach the merits of this claim without a pending execution lurking in the background, and to ensure that any final judgment is not rendered ineffectual by the irreparable injury of Moore’s execution, this Court must grant
4

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 5 of 14
Moore a temporary restraining order and preliminary injunction barring the scheduling
and/or carrying out of Moore’s execution during the pendency of this l a ~ s u i t . ~
SUPPORTING MEMORANDUM This Court should enjoin Defendants from scheduling and/or carrying out
Moore’s execution during the pendency of this litigation, because the failure to do so
would allow Defendants to attempt to moot out this litigation by executing Moore, and
because the failure to do so would allow Defendants to make a strategic decision to
attempt to execute Moore solely for the purpose of forcing this Court to decide the merits of this case in an expedited fashion. Authority to issue an injunction is founded in Rule 65 of the Federal Rules of Civil Procedure and the All Writs Act, 28 U.S.C. 1651, which
allows this Court to issue all writs in aid of its jurisdiction. Barring an execution while
this Court considers the merits of Moore’s challenge to the chemicals and procedures
used in Kentucky lethal injections surely is in aid of this Court’s jurisdiction. Moore is ready, willing, and able to proceed expeditiously to the merits of this case.
“A death sentence cannot be carried out by the State while substantial legal issues
remain outstanding.” Barefoot v. Estelle, 463 U.S. 880, 883 (1983). As discussed in Moore’s complaint and the supporting memorandum of law, substantial legal issues have
been raised in a timely manner. This Court has an obligation to give careful scrutiny to
Litigation in other states also demonstrates that scheduling an execution date is a strategic government tactic to shift the focus away from the merits of the claim. On at least two occasions, executions have been scheduled during litigation concerning the means of effectuating a sentence of death. In South Carolina, this occurred despite the fact that the litigation challenging the execution procedures was filed prior to a scheduling of an execution. Despite notice of the South Carolina litigation, David Clayton Hill’s execution date was set only days after the litigation was filed. This forced the merits of the claim to proceed in a brutally expedited fashion. Mr. Hill was executed despite ongoing litigation surrounding the execution procedures utilized in South Carolina. A similar situation will occur in Kentucky if this Court does not grant an injunction barring Defendants from scheduling an execution during the pendency of this litigation. In Ohio, litigation challenging lethal injection procedures was filed on June 10,2004. During the pendency of the litigation, in August of 2004, Ohio scheduled the execution of one of the Plaintiffs, Adremy Dennis for October 2004. Dennis was executed.
5

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 6 of 14
these colorable claims of violations of federal and state law. See Barefoot v. Estelle, 463 U.S. 880 (1983); Zant v. Stephens, 462 U S . 862, 885 (1983). “Approving the execution of [Moore] before his [claim] is decided on the merits would clearly be improper.” Barefoot, 463 U.S. at 889. Thus, Moore is “entitled to a[n] injunction to permit due consideration on the merits.” Id.
In addition to the Barefoot basis for granting an injunction, the traditional factors for determining whether to grant an injunction favor enjoining Defendants from scheduling andor carrying out Moore’s execution until the merits of this litigation have been resolved. The United States Court of Appeals for the Sixth Circuit has articulated four factors that this Court must balance in determining whether to grant an injunction: 1) whether the movant would suffer irreparable injury without the injunction; 2) whether the public interest would be served by issuance of the injunction; 3) whether the issuance of the injunction would cause substantial harm to others; and, 4) whether the movant has a strong likelihood of success on the merits. Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2006). In addition, when the movant seeks an injunction barring carrying out a death sentence, this Court must consider the extent to which the inmate has delayed unnecessarily in bringing the claim. Nelson v. Campbell, 541 U.S. 637,649-50 (2004).
These factors are not weighed equally. “Simply stated, more of one excuses less of the other.” Michigan Coalition of Radioactive Materials Users, Znc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). In other words, “the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay.” Zd. If the movant demonstrates irreparable harm that decidedly outweighs any potential harm to the defendant if a stay is granted, the movant
6

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 7 of 14
only needs to establish “serious questions going to the merits.” Id. at 153-54. Balancing these factors establishes that Moore is entitled to injunctive relief pending the final outcome of this litigation.
1. Moore will suffer irreparable injury if an injunction is not granted. The first factor clearly favors granting a temporary restraining order and preliminary injunction. In evaluating the harm that will occur if a stay is not granted, this Court must consider: 1) the substantiality of the injury alleged; 2) the likelihood of its occurrence; and, 3) the adequacy of the proof provided. Michigan Coalition of Radioactive Materials Users, 945 F.2d at 154; Celebrezze v. Nuclear Regulatory Commission, 812 F.2d 288, 290 (6th Cir. 1987). These factors clearly establish that Moore will suffer irreparable injury if an injunction is not granted. Moore has severely damaged veins, and faces an elevated risk of pain and suffering from Defendants’ lethal injection chemicals and procedures. There is no remedy for harm caused by problems inserting an I.V. into Moore or injecting chemicals that pose an unnecessary risk of pain and suffering. Without intervention by this Court, the injection of the lethal injection chemicals will cause Moore pain, suffering, and death. There is little doubt that a prisoner facing execution will suffer irreparable injury if an injunction barring the execution is not granted. See, e.g., Wainwright v. Booker, 473 U.S. 935 n. 1 (1985) (Powell, J., concurring) (recognizing that there is little doubt that a prisoner facing execution will suffer irreparable injury if the stay is not granted); Harris v, Johnson, 323 F.Supp.2d 797 (S.D. Tex. 2004), overruled on other grounds by, Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) (“The potential harm to Plaintiff, on the other hand, is clear, potent, and irreversible. If Plaintiffs contentions are correct, the denial of a

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 8 of 14
TRO will subject Plaintiff to an excruciating death, which certainly qualifies as irreparable harm.”). Without an injunction, Defendants will inflict on Moore not only the
most substantial injury known to mankind - - the taking of his life - - but also extreme
pain and suffering due to Moore’s peculiar physical condition, including his bad veins, diabetes, and arteriosclerosis. Without injunctive relief, Moore will not just die; he will be tortured to death. Thus, the irreparable injury prong is satisfied.
2. The public interest favors granting an injunction. Granting Moore an injunction will serve the public interest. “Executions are unquestionably matters of great public importance,” California First Amendment Coalition v. Calderon, 150 F.3d 976, 981 (9th Cir. 1998), for the public has an interest in the finality of a judgment and the carrying out of a legally imposed sentence. The public also has an interest in receiving reasonable assurances that sentences carried out in the public’s name are carried out in a constitutional manner that ensures a death in accord
with the dignity of man - - a basic premise underlying the Eighth Amendment. Gregg v.
Georgia, 428 U S . 153, 173 (1976). This interest favors granting Moore an injunction. See, Harris v. Johnson, 323 F.Supp.2d 797 (S.D. Tex. 2004), overruled on other grounds by, Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) (“It is, on the other hand, beyond the Court’s comprehension that a temporary restraining order in this case, that would delay but not halt the execution, could disserve the public interest. While the Court understands that it has been 18 years since Mr. Harris’ conviction, no significant harm to the public interest could arise from the proper, informed, deliberate adjudication of this claim.”).
8

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 9 of 14
3. Granting Moore an injunction will cause no harm to Defendants. Granting Moore an injunction barring Defendants from scheduling and/or carrying out Moore’s execution during the pendency of this litigation preserves the status quo. At the moment, Moore does not have a scheduled execution date. Thus, granting an injunction causes no harm to Defendants and will only serve to prevent them from attempting to short-circuit this Court’s ability to reach the merits of his claims. In addition if Defendants prevail on the merits of the litigation (or change the chemicals and procedures used in lethal injections so that they do not violate the Eighth Amendment), they will quickly be able to execute Moore. Defendants are not harmed by the granting of an injunction, and any residual harm by a possible short delay in carrying out the execution is outweighed by the irreparable injury that Moore will suffer and the public’s interest in ensuring that Defendants’ execution protocol conforms with the Eighth Amendment. See Harris v. Johnson, 323 F.Supp.2d 797 (S.D. Tex. 2004), overruled on other grounds by, Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) (“If Plaintiffs contentions are incorrect, however, the grant of a TRO may quickly be remedied and the State‘s interest in enforcing its death sentence may be expeditiously satisfied.”). 4. “Serious questions going to the merits” exist. Because the irreparable injury prong and the public interest prong of the injunction standard weigh heavily in favor of Moore, he needs not establish a strong likelihood of success on the merits. Rather, he needs to establish only that serious questions going to the merits exist. That is easily accomplished.
9

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 10 of 14
The issues this case present are serious legal questions - - 1) does Defendants’
means for inserting an I.V. pose an unnecessary risk of pain and suffering, particularly in light of Moore’s damaged veins; 2) does the use of pancuronium bromide in lethal injections violate evolving standards of decency; 3) does the use of sodium thiopental, pancuronium bromide, and potassium chloride, combined and individually, pose an unnecessary risk of pain and suffering; 4) does Defendants’ failure to administer an analgesic during the lethal injection process create an unnecessary risk of pain and suffering; 5) does Defendants’ failure to monitor adequately for the ability to feel pain after the first and second chemical have been administered create an unnecessary risk of pain and suffering; 6) does Defendants’ manner of injecting the chemicals and the lack of training of the execution team create an unnecessary risk of pain and suffering; 7) does Defendants’ failure to have the necessary equipment available to maintain life after the first and second chemical are administered deprive Moore of the right to life if a stay of execution is granted after the first or second chemical is administered; 8) do all the factors listed above pose a heightened risk of pain and suffering to Moore because of his physical condition; and, 9) does Defendants’ failure to take action to rectify any of the above issues constitute deliberate indifference towards known medical conditions.
Medical and scientific evidence, including testimony from a prior trial, support Moore’s claims. As discussed in detail in Moore’s Memorandum of Law in Support of his Complaint: each of the lethal injection chemicals could be replaced by other chemicals that would cause death with a much lower risk of pain and suffering. In addition, it would be relatively easy for Defendants to monitor for consciousness after the first and second chemical have been administered. It would be just as easy for them to
10

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 11 of 14
add an analgesic to the lethal injection chemicals. They also are aware that Moore has compromised veins and that inserting an I.V. during his execution will be difficult if not impossible. Yet, they have taken no action to remedy this. As undisputed testimony from a prior lethal injection trial has established, Defendants do not have the necessary equipment to maintain life after the first or second chemical is administered. This information establishes a substantial likelihood of success, or at least, that serious questions going to the merits exist. Thus, this factor favors granting Moore an injunction.
5. Moore has not unduly delayed in filing his lethal injection challenge. Moore has not delayed in filing this suit. Moore is not currently under an execution warrant, and Defendants have yet to seek one. In addition, this litigation has been filed prior to Moore filing his Petition for a Writ of Certiorari off of the denial of federal habeas relief. The pre-warrant nature of this litigation and the fact that his federal habeas appeal is still pending establish that Moore has not delayed in filing this action and that Defendants will not be harmed by having to litigate this issue before Moore can be executed. See, e g , Morales v. Hichman, 415 F.Supp.2d 1037, 1042 (N.D. Cal. 2006) (holding that because Morales filed his lethal injection suit when his execution was imminent but prior to the scheduling of an execution date, he did not unduly delay in filing suit). In addition, Defendants have steadfastly refused to disclose their execution protocol. In fact, they got the execution protocol sealed during litigation on behalf of other death-sentenced inmates. As a result, on March 8, 2006, Moore filed an Open Records Request with Defendants seeking information on its lethal injection process, including a copy of Defendants' execution protocol. On March 16, Defendants notified
Moore incorporates his Complaint and Memorandum of Law in Support of his Complaint. 11

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 12 of 14
Moore that a response will be received on or before March 31, 2006. But instead of a response, Moore received notification on March 31, 2006 that a final response can be expected on or before April 7, 2006. No response was received on April 7, 2006. Instead, on April loth, Defendants notified Moore that they will not comply with his Open Records Request. Thus, any delay in filing this action is attributable to Defendants.
CONCLUSION In order to give careful scrutiny to the colorable claims Moore presents, this Court must grant a temporary restraining order and injunction to ensure that an execution does not happen in the meantime. It is only by doing so that Moore, this Court, and the public can be ensured that the chemicals and procedures Defendants use for carrying out lethal injections comport with the Eighth Amendment.
REQUEST FOR RELIEF Moore respectfully request that this Court grant a temporary restraining order barring Defendants from scheduling andor carrying out his execution during the pendency of this litigation.
12

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 13 of 14 RESPECTFULLY SUBMITTED,

Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
7 April h 2 0 0 6 .

Assistant PAblic Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

Case 3:06-cv-00022-KKC Document 5-1 Filed 04/19/2006 Page 14 of 14
CERTIFICATE OF SERVICE I hereby certify that on this date, I caused a true and correct copy of the foregoing
MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION BARRING DEFENDANTS
FROM SCHEDULING AND CARRYING OUT PLAINTIFFS’ EXECUTION DURING THE PENDENCY OF THIS LITIGATION
AND CONSOLIDATED MEMORANDUM IN SUPPORT and its accompanying proposed order to be served via first class mail, postage prepaid on the following individuals:
Hon. Jeff Middendorf General Counsel Department of Corrections 2439 Lawrenceburg Road P. 0. Box 2400 Frankfort, Kentucky 40602
Hon. David Smith Assistant Attorney General 1024 Capital Center Drive Frankfort, Kentucky 40601
Hon. Jim Deckard General Counsel Office of the Governor The Capital 700 Capital Avenue Frankfort, Kentucky 40601
April 2006.
14

 
 Case 3:06-cv-00022-KKC Document 1-1 Filed 04/19/2006 Page 1 of 58

IN THE UNITED STATES DISTRICT COURT

Eastern District of Kentucky
FILED

FOR THE EASTERN DISTRICT OF KENTUCKY FRANKFORT DIVISION

APR 19 2006

)

BRIAN KEITH MOORE,

)

)

Plaintiff

)

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON,

)

Warden, Kentucky State.

)

Penitentiary, Eddyville Kentucky, )

)

SCOTTHAAS

)

Medical Director for the

)

Kentucky Department of Corrections )

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

)

and,

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

AT FRANKFORT LESL!E G WHITMER CLERK US DISTRICT COURT

CIV. ACTION# :J: OtP,-CiJ- .;!;(

CAPITAL CASE

/Ct:~

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

Case 3:06-cv-00022-KKC Document 1-1 Filed 04/19/2006 Page 2 of 58

I.

NATURE OF ACTION 1

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

violations of Plaintiffs right to be free from cruel and unusual punishment under the Eighth and

Fourteenth Amendments to the United States Constitution. Plaintiff seeks equitable and

injunctive relief. 2. Defendants' current method oflethal injection is unconstitutional because there is
an unnecessary risk that Plaintiff will be tortured to death. No government within the United States may intentionally or negligently use an excruciatingly painful and unreliable procedure or chemical for carrying out executions, particularly when readily available alternative means of

carrying out the sentence exist. 3. Kentucky's alternative method of execution for individuals sentenced to death
prior to 1998, electrocution, violates the Eighth Amendment of the United States Constitution

4. Plaintiff has damaged, compromised veins. 5. Plaintiffs compromised veins make it difficult if not impossible for Defendants to

insert an LV. by the normal mode, peripheral access. 6. Plaintiffs compromised veins make it likely that the chemicals will not remain in
the venous system and circulate throughout the body, even if an LV. can be inserted. 7. Kentucky uses three chemicals to carry out lethal injections: sodium thiopental,

pancuronium bromide, and potassium chloride. 8. Each of Defendants' lethal injection chemicals poses an unnecessary risk of pain

and suffering.

1 Plaintiff incorporates the attached memorandum of law and exhibits by reference. For this court's convenience, Plaintiffs submit and incorporates a separate memorandum of law concerning the electrocution claim.
2

Case 3:06-cv-00022-KKC Document 1-1 Filed 04/19/2006 Page 3 of 58
9. Defendants' execution procedures fail to ensure that personnel responsible for anesthesia and monitoring of lethal injection are properly trained and qualified.
10. Monitoring to ensure that the inmate is in the appropriate plane of consciousness to prevent the inmate from feeling pain is essential to ensuring that the condemned inmate does not feel pain during an execution.
11. Defendants' protocol lacks standards for administering lethal injection and monitoring consciousness.
12. Defendants' fail to monitor for the appropriate plane of consciousness that prevents the condemned inmate from feeling pain during the execution by lethal injection.
13. Defendants' execution procedures fail to provide for identification of and addressing of contingencies that may occur during an execution, in event of problems.
14. Kentucky's failure to have adequate equipment to maintain life if a last minute stay is granted after the first or second chemical is administered and failure to have adequately trained individuals to operate the equipment violates the Eighth Amendment to the United States Constitution and federal due process.
3

Case 3:06-cv-00022-KKC Document 1-1 Filed 04/19/2006 Page 4 of 58
15. Plaintiff is not alleging that Defendants could never execute him. Rather, he asserts that any execution must comport with the United States Constitution. Plaintiff could be executed if: 1) no separate legal challenge reverses his conviction or death sentence; 2) Plaintiff does not receive executive clemency; 3) Defendants design a constitutionally acceptable method for executing Plaintiff, which can include lethal injection if done in a manner that does not pose an unnecessary risk of pain and suffering, and which monitors for consciousness; and, 4) Defendants maintain proper equipment at the execution chamber for maintaining life if a stay of execution is granted after the first or second chemical is administered, and have adequately trained individuals at the execution chamber to operate the equipment and render life saving measures.
16. Plaintiff seeks a temporary restraining order and preliminary injunction preventing Defendants from carrying out his execution until Defendants come up with a means of guaranteeing venous access.
17. Plaintiff seeks a temporary restraining order and preliminary injunction preventing Defendants from carrying out his execution by the means currently employed for carrying out an execution by lethal injection in the Commonwealth of Kentucky.
18. Plaintiff does not claim that lethal injection is per se unconstitutional, but instead seeks an Order declaring that Defendants' current chemicals and means for conducting an execution by lethal injection violates the Eighth and Fourteenth Amendments to the United States Constitution.
4

Case 3:06-cv-00022-KKC Document 1-1 Filed 04/19/2006 Page 5 of 58
19. Plaintiff also seeks an Order that Defendants' failure to have proper drugs and equipment for maintaining life if a last minute stay of execution is granted and Defendants' failure to have adequately trained personnel at the death chamber to operate the life-maintaining equipment violate due process and the Eighth Amendment to the United States Constitution.
20. Plaintiff seeks an Order declaring that electrocution violates the Eighth and Fourteenth Amendments.
II. PLAINTIFF 21 Brian Keith Moore is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky.
III. DEFENDANTS 22 Defendant John D. Rees is the Commissioner of the Kentucky Department of Corrections 23 Defendant Thomas Simpson is the Warden of the Kentucky State Penitentiary, where Plaintiffs execution will occur. 24 Defendant Scott Haas is the Medical Director for Kentucky Department of Corrections. He is responsible for designating a physician to examine Plaintiff in the weeks leading up to his execution, and for designating a physician to be present at the execution facility to render medical treatment if a stay of execution is granted after the first and/or second chemical is administered.
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25 Defendant Ernie Fletcher is the Governor of Kentucky. He is responsible for scheduling Plaintiffs execution and has the authority to call off an execution if a suitable vein in Plaintiffs body cannot be accessed within 60 minutes of attempting peripheral venous access.
26 Defendants Unknown Executioners are employed by or under contract with the Kentucky Department of Corrections, to make preparations for, and carry out, Plaintiffs execution. They include, but are not limited to, physicians, emergency medical technicians, phlebotomists, physician's assistants, the execution team, the executioner, the LV. team, and the team leader. Plaintiff does not yet know their identities and Defendants will not reveal the identities of these persons.
IV. JURISDICTION AND VENUE 27. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights violation), 1651 (all-writs), 2201 (declaratory relief), and 2202 (further relief). 28. This action arises under the Eighth and Fourteenth Amendments of the United States Constitution, and 42 U.S.C. § 1983. 29. Venue is proper under 28 U.S.C. § 1391. All Defendants reside in the same state. The principal place of business for Defendant Rees, Defendant Fletcher, and Defendant Haas is Frankfort, Kentucky. 30. All Defendants are state actors acting under color of state law.
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V. FACTS 31. Plaintiff Brian Keith Moore's death sentence was recently affirmed by the United States Court of Appeals for the Sixth Circuit. Rehearing en bane was denied on February 28, 2006. His petition for a writ of certiorari is due in the United States Supreme Court in late May 2006. Because Moore's execution could be scheduled soon, he is filing this action now (rather than closer to an execution date) in order to provide him and this Court with adequate time to resolve the disputed issues. 32. Defendants are responsible for carrying out executions in Kentucky. 33. Under the Eighth Amendment to the United States Constitution, cruel and unusual punishment claims involving a particular means of effectuating a sentence of death are analyzed under a six prong test in which proof of any one prong establishes an Eighth Amendment violation:
a) the physical pain inflicted is excessive in light of readily available alternatives;
b) the risk of pain is more than the Constitution tolerates; c) the risk of pain and suffering is unnecessary in light of available alternatives; d) mutilation of the body during the execution; e) unnecessary psychological suffering; f) the particular means of effectuating the sentence of death violates evolving standards of decency. 34. Defendant Rees worked with the Oklahoma Department of Corrections from July 1976 until December 1980. 35. The first state to adopt lethal injection was Oklahoma in 1977.
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36. Defendant Rees was involved in creating the policies and procedures for carrying out lethal injections in Oklahoma.
37. In 1978, Oklahoma drafted the first lethal injection protocol in the country. 38. Defendant Rees was involved in drafting Oklahoma's 1978 lethal injection protocol. 39. Prior to adopting the 1978 protocol, Oklahoma neither conducted nor consulted any medical or scientific studies in deciding what chemicals to use or the quantities of the chemicals to administer. 40. Oklahoma's original execution protocol called for the administration of a short acting barbiturate in conjunction with a paralytic agent. Potassium chloride was mentioned as a possible paralytic agent. 41. Potassium chloride is not a paralytic agent. 42. The first lethal injection execution in the United States was carried out in Texas in 1982 by the administration of sodium thiopental, pancuronium bromide, and potassium chloride. 43. Prior to the first lethal injection in 1982, no state conducted or consulted any medical or scientific studies in determining which chemicals to use for lethal injections or in what quantity to administer them. 44. No state has conducted or consulted any medical or scientific studies on sodium thiopental, pancuronium bromide, or potassium chloride during lethal injections, or into the quantity of each drug to administer.
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45. Defendants intend to execute Plaintiff by administering the following drugs in the following manner:
a) sodium thiopental (also known as sodium pentothal) (3 grams); b) pancuronium bromide (also referred to as pavulon) (50 milligrams); and, c) potassium chloride (240 milliequivalents) The drugs are injected in succession, one after the other. Saline solution is injected in between each drug. 46. Defendants use these three chemicals because these chemicals were used by other states at the time Kentucky created its first lethal injection protocol. 47. Defendants neither conducted nor relied upon any medical or scientific studies in determining to use these chemicals. 48. Defendants neither conducted nor relied upon any medical or scientific studies in determining the quantity of chemicals to administer. 49. In deciding which chemicals to use in Kentucky lethal injections, Defendants did not consult with any anesthesiologists, doctors, or other medically trained personnel. 50. During lethal injection litigation on behalf of Ralph Baze and Thomas Bowling, Defendants changed their protocol to increase the dose of sodium thiopental from 2 grams to 3 grams. This change was made in late 2004. 51. The decision to increase the amount of sodium thiopental was made by Defendant Rees. 52. Defendant Rees has no medical training. 53. Prior to increasing the amount of thiopental from 2 grams to 3 grams, Defendant Rees did not consult any medical professionals about increasing the dose of thiopental.
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54. Defendant Rees conducted no medical or scientific studies on the effects of the lethal injection chemicals before increasing the amount of thiopental from 2 grams to 3 grams.
55. Defendant Rees did not consult any anesthesiologists or medically trained person about increasing the amount of thiopental before increasing the dose from 2 grams to 3 grams.
56. Prior to April 18, 2005, Defendant Rees thought the directions on the lethal injection chemical bottles would say how much of the chemical to administer.
57. The package inserts and labels on the lethal injection chemicals do not say how much of the chemicals to administer during a lethal injection.
58. Other than the fact that sodium thiopental, pancuronium bromide, and potassium chloride are used in other states, prior to April 18, 2005, Defendant Rees had no idea why these three chemicals are used in Kentucky lethal injections.
59. Defendant Rees currently has no knowledge why these three chemicals are used in Kentucky lethal injections.
60. Prior to April 18, 2005, Defendant Rees did not know why Kentucky lethal injections used three chemicals instead of one or two.
61. Defendant Rees still does not know why Kentucky lethal injections used three chemicals instead of one or two.
62. Until April 18, 2005, Defendants thought that all states that carry out lethal injection administer sodium thiopental, pancuronium bromide, and potassium chloride.
63. New Jersey's lethal injection protocol does not use pancuronium bromide. Instead, they administer only sodium thiopental and potassium chloride.
64. Prior to April 18, 2005, Defendants were unaware that New Jersey uses only two chemicals: sodium thiopental and potassium chloride to carry out lethal injections.
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65. Defendants have not consulted with the New Jersey Department of Corrections about why they do not use pancuronium bromide or any other neuromuscular blocking agent in lethal injections.
66. Defendants have not considered adopting New Jersey's chemical combination (sodium thiopental and potassium chloride).
67. Defendants have not consulted any anesthesiologists about the viability of administering only sodium thiopental and potassium chloride.
68. Defendants have not consulted any medical professionals about the viability of administering only sodium thiopental and potassium chloride.
69. Assisted suicide is legal in Oregon. According to the Death with Dignity reports required by Oregon law, more than 170 terminally ill people have been prescribed medication to end their lives in Oregon.
70. In almost all of these cases, the terminally ill person was prescribed a large dose of pentobarbital, a long-acting barbiturate, as the only chemical to cause death.
71. Defendants have not consulted any medical personnel about replacing sodium thiopental with pentobarbital.
72. Defendants have not considered replacing sodium thiopental with pentobarbital. 73. Defendants have not consulted any medical personnel about administering pentobarbital as the sole chemical to cause death. 74. Defendants have not considered administering pentobarbital as the sole lethal injection chemical. 75. The usage of sodium thiopental is not mandated by Kentucky law. 76. The usage ofpancurium bromide is not mandated by Kentucky law.
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77. The usage of potassium chloride is not mandated by Kentucky law. 78. Finding that any one, a combination of, or all these chemicals violates the Eighth Amendment to the United States Constitution will not require statutory amendment or variance. 79. To carry out Plaintiffs execution, Defendants intend to insert two I.V.'s into

Plaintiff. 80. 81.

The three chemicals will be injected from only one LV. line. The LV. insertion team will spend up to 60 minutes attempting to insert an LV.

into Plaintiffs' body. 82. If the I.V. insertion team is unable to insert the I.V.' s after 60 minutes, Defendant
Rees and Defendant Simpson will ask Defendant Fletcher to call off the execution and

reschedule it. 83. The chemicals are injected from outside the execution chamber by pushing them
through a tube that flows approximately five feet to the catheter that is inserted into the

condemned inmate's vein. 84. The chemicals are injected by a member of the execution team referred to as the

executioner. 85. The executioner (the person who actually injects the chemicals) has no medical

training. A.
86. 87. 88.

Facts related to the unconstitutionality of the tri-chemical cocktail used in Kentucky lethal injections.
Sodium thiopental (pentothal) is an ultra-short acting barbiturate.
Sodium thiopental begins to wear off almost immediately. Pancuronium bromide is a curare-derived agent that paralyzes all skeletal and

voluntary muscles.
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89. Pancuronium bromide has no impact whatsoever on awareness, cognition, or sensation.
90. Potassium chloride is an extraordinarily painful chemical which activates the nerve fibers lining a person's veins and interferes with the rhythmic contractions of the heart, causing cardiac arrest.
91. This particular combination and sequence of chemicals create an unnecessary risk that Plaintiff will suffer an excruciatingly painful and protracted death in violation of the Eighth Amendment to the United States Constitution.
92. Prior to injecting sodium thiopental, Defendants offer the condemned inmate Valium.
93. If Plaintiff refuses to take Valium prior to his execution, Defendants will force him to do so if Defendants determine that Valium should be administered.
94. Defendants have no guidelines for determining under what circumstance a forced administration of Valium should take place.
95. Valium can interfere with sodium thiopental's effectiveness. 96. Sodium thiopental is a powder that must be mixed into a liquid before injecting it. 97. According to the package insert for sodium thiopental, it should be administered only "by individuals experienced in the conduct of intravenous anesthesia." 98. Defendants are not experienced in the process of intravenous anesthesia. 99. The executioner, the person administering thiopental, is not experienced in the conduct of intravenous anesthesia. 100. According to the package insert for sodium thiopental, "individual response to the drug is so varied that there can be no fixed dosage."
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101. Larger individuals need a higher dose of thiopental than smaller individuals. 102. According to the package insert for sodium thiopental, "dose is usually proportional to body weight and obese patients require a larger dose than relatively lean persons of the same weight." 103. Body mass index is calculated by dividing the subject's weight in kilograms by the square of his height in meters. 104. A body mass index of30 to 35 is characterized as obese. 105. A body mass index of over 35 is characterized as morbidly obese. 106. Plaintiff is morbidly obese as defined above. 107. Defendants inject the same dose of thiopental to all condemned inmates. 108. The concentration of thiopental injected determines the potency of sodium thiopental, i.e., if the sodium thiopental is too diluted, it will be less potent, and not ensure that the condemned inmate does not feel pain at any point during his execution. 109. Defendants are not adequately trained in mixing the lethal injection chemicals to ensure that the concentration of thiopental injected into the condemned inmate prevents the inmate from feeling pain. 110. Sodium thiopental is an ultra short-acting barbiturate which is ordinarily used only in the induction phase of anesthesia to render a surgical patient unconscious for mere minutes, specifically so that the patient may re-awaken and breathe on their own power if any complications arise in inserting a breathing tube pre-surgery. 111. Defendants administer sodium thiopental to prevent the condemned inmate from feeling pain.
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112. Sodium thiopental is the only chemical administered by Defendants to prevent the condemned inmate from feeling pain.
113. Sodium thiopental does not relieve pain. 114. Analgesics (which include opiates) are the class of chemicals that relieve pain. 115. Sodium thiopental is not an analgesic. 116. Defendants do not administer an analgesic while carrying out lethal injections. 117. Sodium thiopental is almost never used as the only anesthetic during a surgical proceeding. 118. During surgical procedures, a barbiturate is administered to render a person unconscious and an analgesic is administered to ensure that the patient does not feel pain. 119. Both a barbiturate and an analgesic are continuously administered during surgical procedures. 120. Sodium thiopental was a state of the art barbiturate in 1977 when lethal injection first became a method of execution in the United States. 121. Sodium thiopental has been supplanted in the medical field by propafol. 122. As of April 20, 2005, Defendants are aware that sodium thiopental has been supplanted in the medical field by propafol. 123. Propafol is a safer and longer acting barbiturate than sodium thiopental. 124. Defendants have not consulted any medical professionals about the viability of using propafol instead of sodium thiopental. 125. Defendants have not taken any steps to look into the viability of using propafol instead of sodium thiopental.
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126. Defendants have not taken any steps to look into the viability ofreplacing sodium thiopental with pentobarbital.
127. Because of its brief duration (usually about five to seven minutes), there is a reasonable probability that sodium thiopental will fail to provide a sedative effect throughout the entire execution process.
128. Three grams of sodium thiopental or even a larger dose is insufficient to induce unconsciOusness if sufficient sodium thiopental does not reach the condemned prisoner's bloodstream.
129. The concentration of sodium thiopental not the dose of thiopental injected into the condemned inmate determines whether the condemned inmate will feel pain.
130. Defendants fail to monitor the concentration of sodium thiopental and fail to monitor to ensure that the full quantity of sodium thiopental reaches the inmate's bloodstream.
131. Defendants fail to determine if the inmate is unconscious to the point of being unable to feel pain prior to administering pancuronium bromide and potassium chloride.
132. Defendants' only form of monitoring for unconsciousness prior to injecting the second and third chemical is physical observation of the inmate.
133. Prior to the administration of pancuronium bromide, checking corneal reflexes or pinching a person to see if a person responds are methods that could indicate whether a person can feel painful stimuli.
134. After the injection of pancuronium bromide, machines such as an EEG monitor can be used to monitor for the ability to feel painful stimuli.
135. If a person is able to feel pain, pancuronium bromide and potassium chloride would be extremely painful.
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136. Because Defendants choose to use potassium chloride, instead of less painful alternatives, it is essential to ensure that a person cannot feel pain.
137. There are multiple levels of unconsciousness. 138. General anesthesia, also known as surgical anesthesia, is the level of anesthesia a person must be in to not feel pain during a lethal injection. 139. A person who appears unconscious to the lay observer may not be in a state of general anesthesia. 140. A person who appears unconscious can feel pain or wake up from painful stimuli if they are not in a state of general anesthesia. 141. A person who is unable to respond to verbal stimuli might be conscious enough to wake and feel painful stimuli, such as the pain caused by pancuronium bromide and potassium chloride. 142. When sodium thiopental is the sole anesthetic, at least 39-42 mg!L of thiopental in the bloodstream is necessary to ensure that a person will not wake up from painful stimuli. See Baselt, Disposition of Toxic Drugs and Chemicals in Man. 143. The 39-42 mg!L is the amount of thiopental necessary in the blood stream to prevent a person from waking from painful stimuli (in other words, the amount of thiopental necessary to achieve surgical anesthesia), not the amount of thiopental necessary to prevent a person from responding to a verbal command. 144. North Carolina injects sodium thiopental during executions. 145. Numerous toxicology reports on executed death row inmates in North Carolina, including toxicology results from four executions conducted between November 2005 and the end of January 2006, indicate thiopental levels below 39-42 mg/L.
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146. Because the level of thiopental in bodies of inmates executed in North Carolina was below 35-39 mg/L, these inmates were likely able to feel pain during their executions.
147. Because North Carolina injects pancuronium bromide, the condemned inmate could not communicate that they were conscious and feeling pain, and evidence of consciousness could not be apparent to the observers of the execution.
148. South Carolina administers two grams of sodium thiopental. 149. Toxicology reports on death row inmates in Arizona and South Carolina indicate that numerous death-sentenced inmates in Arizona and South Carolina had less than 39-42 mg/L of thiopental in their bloodstream when executed. 150. Because the level of thiopental in body of inmates executed in Arizona and South Carolina was below 39-42 mg/L, these inmates were likely able to feel pain during their execution. 151. Because both Arizona and South Carolina inject pancuronium bromide, none of the condemned inmates could communicate that they were conscious and feeling pain, and evidence of consciousness could not be apparent to the observers of the execution. 152. Edward Harper is the only person judicially executed by lethal injection in Kentucky. 153. Toxicology reports show that the level of thiopental in Edward Harper's blood at the time of his execution by Defendants was between 3 and 6.5 mg/L. 154. The concentration of thiopental in Harper's bloodstream was insufficient to ensure that he could not feel painful stimuli during his execution. 155. Edward Harper likely was conscious enough to feel pain when pancuronium bromide was administered.
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156. Edward Harper likely was conscious enough to feel pain when potassium chloride was administered.
157. Because Defendants injected Harper with pancuronium bromide, Harper could not communicate that he was conscious and feeling pain, and evidence of consciousness was not apparent to the observers of the execution.
158. Dr. Dershwitz, who has testified on behalf of multiple correctional departments in lethal injection challenges in many states asserts that neither Harper nor any other inmate were likely conscious, defined by him as the ability to respond to verbal stimuli, during their execution.
159. Dr. Dershwitz has conducted no studies on sodium thiopental. 160. Dr. Dershwitz bases his opinions on how chemicals, other than sodium thiopental, react with the human body. 161. Dr. Dershwitz bases his opinion on his knowledge of the use of sodium thiopental in conjunction with other chemicals to render an inmate unconscious. 162. Dr. Dershwitz's opinion is also based on the amount of thiopental necessary to ensure a lack of response to verbal stimuli. 163. Dr. Dershwitz rarely relies on thiopental as the sole anesthetic during surgical procedures. 164. Dr. Dershwitz has not reviewed literature on injecting thiopental as the sole anesthetic and, until he testified in Baze v. Rees, he was unfamiliar with Baselt's standard text for determining the amount of thiopental necessary to ensure that a person will not respond to painful stimuli.
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165. A larger concentration of sodium thiopental is necessary to obtain and maintain unconsciousness when thiopental is used as the only chemical for this purpose.
166. An individual who is unable to respond to verbal stimuli can feel pain. 167. A larger concentration of sodium thiopental is necessary to ensure that a person who cannot respond to verbal stimuli also cannot feel pain. 168. Even according to Dershwitz, with 7 mg/L of sodium thiopental m the bloodstream, 50% of the population will be able to respond to verbal commands. 169. Based on Dershwitz's calculations, the amount of thiopental in the blood necessary to prevent a person from feeling pain must be higher than 7 mg/L. 170. Toxicology results from numerous individuals executed in Arizona, North Carolina, South Carolina, and the lone lethal injection in Kentucky indicate that the thiopental levels in the bloodstream were lower than 7 mg/L. 171. Dershwitz has calculated the amount of thiopental he expects to find in the blood five minutes after an injection of 3grams of thiopental. Dershwitz's predictions on this change depending on what state has hired him as an expert. 172. In litigation in Maryland on behalf of Steven Oken, Dr. Dershwitz testified (by affidavit) that 30.15 mg/L of thiopental should be in Oken's blood five minutes after injection. 173. 30.15 mg/L is below the 39-42 mg/L threshold level necessary to prevent a person from feeling painful stimuli, according to Baselt. 174. Toxicology results from Oken's execution show that 10 mg/L of thiopental, not 30.15 mg/L, was found in Oken's bloodstream. 175. In the four most recent executions in North Carolina, blood to test for the amount of thiopental was drawn shortly after death and at the time of the autopsy.
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176. Steven Van McHone's toxicology results showed thiopental levels of 1.5 mg/L and 21 mg/L.
177. The thiopental levels in McHone were lower than predicted by Dershwitz. 178. The thiopental levels in McHone were lower than the amount Dershwitz says is necessary to prevent 50% of the population from responding to verbal stimuli. 179. The thiopental levels in McHone were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt. I80. Elias Syriani's toxicology results showed thiopental levels of 4.4 mg/L, II mg/L, and I2 mg/L. I8I. The thiopental levels in Syriani were lower than predicted by Dershwitz. I82. The thiopental levels in Syriani were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli. I83. The thiopental levels in Syriani were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt. 184. Kenneth Boyd's toxicology results showed thiopental levels of 11 mg/L, and 29 mg/L. 185. The thiopental levels in Boyd were lower than predicted by Dershwitz. 186. The thiopental levels in Boyd were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli. 187. The thiopental levels in Boyd were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt. 188. Perrie Simpson's toxicology results showed thiopental levels of 8.7 mg/L, I2 mg/L, 42 mg/L.
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189. Two of the thiopental levels in Simpson were lower than predicted by Dershwitz. 190. Two of the thiopental levels in Simpson were lower than the amount Dershwitz says is necessary to prevent 50% of the population from responding to verbal stimuli. 191. Two of the thiopental levels in Simpson were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Dershwitz. 192. According to Dershwitz, 5 grams of thiopental should render a person unconscious in about one minute. 193. Recently, Delaware executed Brian Steckel. It took many minutes for the chemicals to take effect. 194. After the sodium thiopental was injected, Steckel was able to speak and asked why it was taking so long for the chemicals to take effect. 195. Steckel was not rendered unconscious within a minute of the injection of thiopental. 196. The length of time it took for Steckel to be rendered unconscious shows that the concentration or amount of thiopental (or both) that reached his bloodstream was insufficient to prevent him from reacting to painful stimuli. 197. Witnesses to Steckel's execution observed Steckel's convulsions during his execution. 198. Convulsions are caused by potassium chloride. 199. Pancuronium bromide prevents witnesses from seeing convulsions caused by potassium chloride. 200. Because Steckel convulsed during his execution, the pancuronium bromide did not paralyze the body.
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201. Because the sodium thiopental did not prevent Steckel from feeling pain, he was able to feel the excruciating agony of pancuronium bromide and pain of potassium chloride.
202. California administers 5 grams of sodium thiopental. 203. Recently disclosed information on the last 13 lethal injections in California establishes that many inmates are conscious, and thus feeling the pain of pancuronium bromide and potassium chloride during their executions. 204. Because sodium thiopental begins to wear off almost immediately and cessation of respiration does not mean death, within five minutes or less of the injection, the inmates will be able to feel painful stimuli. 205. According to Dershwitz, a 5 gram dose of sodium thiopental will cause virtually all people to cease respiration and consciousness within a minute. 206. Evidence from six executions in California show that, even after a 5 gram dose of sodium thiopental, a condemned inmate's breathing does not stop within a minute, and in some situations has lasted for as long as twelve minutes. 207. Jaturun Siripongs was executed in California on February 9, 1999. The administration of sodium thiopental began at 12:04 a.m. and the administration of pancuronium bromide began at 12:08 a.m., yet respiration did not cease until 12:09 a.m., five minutes after the administration of sodium thiopental began and one minute after the administration of pancuronium bromide. 208. The amount of time that elapsed before respiration stopped establishes that Siripongs did not stop breathing within one minute of the injection of sodium thiopental.
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209. The amount of time that elapsed before respiration stopped creates a high likelihood that the sodium thiopental was not working and that Siripongs was able to feel pain during his execution.
210. Manuel Babbitt was executed in California on May 4, 1999. The administration of sodium thiopental began at 12:28 a.m. and the administration of pancuronium bromide began at 12:31 a.m., yet respiration did not cease until 12:33 a.m., five minutes after the administration of sodium thiopental began and two minutes after the administration of pancuronium bromide began.
211. In addition, brief spasmodic movements were observed in Babbitt's upper chest at 12:32 a.m. Babbitt maintained a steady heart rate of 95 or 96 beats per minute for seven minutes after he was injected with sodium thiopental.
212. Babbitt's heart rate and the amount of time that elapsed before respiration ceased establishes that Babbitt did not stop breathing within one minute of the injection of sodium thiopental
213. Babbitt's heart rate and the amount of time that elapsed before death establishes that the sodium thiopental was not working and that Babbitt was likely able to feel pain during his execution.
214. Darrell Keith Rich was executed in California on March 15, 2000. The administration of sodium thiopental began at 12:06 a.m. and the administration of pancuronium bromide began at 12:08 a.m., yet respiration did not cease until 12:08 a.m., when pancuronium bromide was injected, two minutes after the administration of sodium thiopental began.
215. Chest movements were observed in Rich from 12:09 a.m. to 12:10 a.m.
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216. The above information on Rich's execution establishes that Rich did not stop breathing within one minute of the injection of sodium thiopental
217. The above information on Rich's execution establishes that the sodium thiopental was not working and that Rich was able to feel painful stimuli during his execution.
218. Stephen Wayne Anderson was executed in California on January 29, 2002. The administration of thiopental began at 12:17 a.m. and the administration ofpancuronium bromide began at 12:19 a.m., yet respiration did not cease until 12:22 a.m., five minutes after the administration of sodium thiopental began and three minutes after the administration of pancuronium bromide began.
219. The above information establishes that Anderson did not stop breathing within one minute of the injection of sodium thiopental.
220. The above information establishes that the sodium thiopental was not working and that Anderson was likely able to feel painful stimuli during his execution.
221. Stanley Tookie Williams was executed on December 13, 2005. The administration of sodium thiopental began at 12:22 a.m., the administration of pancuronium bromide began at 12:28 a.m., and the administration of potassium chloride began at 12:32 a.m. or 12:34 a.m., yet respiration did not cease until either 12:28 a.m. or 12:34 a.m.
222. The above information establishes that Williams did not stop breathing within a minute of the injection of sodium thiopental.
223. The above information establishes that the sodium thiopental was not working and that Williams was likely able to feel painful stimuli during his execution.
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224. Clarence Ray Allen was executed on January 17, 2006. The administration of sodium thiopental began at 12:18 a.m., yet respiration did not cease until 12:27 a.m., when pancuronium bromide was injected.
225. The above information establishes that Allen did not stop breathing within one minute of the injection of sodium thiopental.
226. The above information establishes that the sodium thiopental was not working and that Allen was likely able to feel painful stimuli during his execution.
227. Defendants do not keep logs on whether and how long the condemned inmate is breathing.
228. Defendants have taken no precautions or corrective measures to ensure that three grams of sodium thiopental will reach an inmate's bloodstream in the correct concentration and render the inmate unconscious enough to not feel pain.
229. Defendants do not use any medical equipment to monitor the condemned inmate's respiration, heart beat, pulse, or brain waves during the execution.
230. If thiopental is not injected directly into a vein, it will not render a person unconSCIOUS.
231. If the vein collapses, thiopental will leak into the surrounding tissue and fail to render the inmate unconscious.
232. If thiopental is injected into a location in the body that is not a vein, the thiopental in the inmate's body would be extremely painful.
233. In a person with damaged (compromised) veins, there is a high risk that the accessed vein will collapse while the chemicals are being administered.
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234. In a person with cardiovascular disease, there is a high risk that the chemicals will not flow through body properly, preventing the chemicals from having the desired effect, and causing the inmate to suffer the excruciating pain of pancuronium bromide and potassium chloride.
235. In surgical procedures, the quantity of anesthetic administered depends upon factors unique to the patient including size, weight, and past drug usage.
236. Administration ofvalium can lessen the efficacy of sodium thiopental. 237. In an individual who is resistant to sodium thiopental, a higher dose of sodium thiopental is necessary to induce unconsciousness to the point where the person will not feel pain. 238. An overweight person is likely to be more resistant to sodium thiopental. 239. Prolonged usage of barbiturates builds up a resistance to sodium thiopental. 240. Edward Harper presented none of the above mentioned risk factors. 241. An insufficient amount or concentration of sodium thiopental reached Edward Harper's bloodstream. 242. Plaintiff has risk factors that substantially increase the likelihood that he will be resistant to sodium thiopental, including the fact that he is substantially overweight. 243. Plaintiffs excessive weight means that a larger concentration of sodium thiopental will be necessary to render him unconscious and to maintain unconsciousness throughout his execution than would be necessary for a person of average weight. 244. According to the package insert, complications and additional risks exist with injecting sodium thiopental into a person who suffers from severe cardiovascular disease. 245. Plaintiff has suffered at least one heart attack.
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246. Plaintiffs heart attack creates additional risks associated with the use of sodium thiopental.
247. Sodium thiopental should not be administered to Plaintiff because of his cardiovascular disease.
248. Defendants have not consulted any medical professionals about potential problems with using sodium thiopental to execute Plaintiff, stemming from Plaintiffs cardiovascular disease.
249. Due to the chemical combination and sequence used in the Kentucky execution process, there is a probability that the sedative effect of the sodium thiopental will be neutralized instantly by the second chemical, pancruonium bromide.
250. When sodium thiopental is exposed to pancuronium bromide, sodium thiopental precipitates, i.e., returns to the solid condition.
251. Once sodium thiopental returns to its solid condition, it no longer performs its anesthetic function.
252. If Plaintiff is not adequately sedated to the point where he cannot feel painful stimuli, he will suffer the conscious experience of being paralyzed while suffocating and an intense fiery burning sensation in every nerve in his body, if Defendants execute him with the three chemicals Kentucky plans to use for his execution.
253. The second chemical involved in the lethal injection process, pancuromum bromide, is a derivative of curare that acts as a neuromuscular blocking agent.
254. Pancuronium bromide is a long acting neuromuscular blocking agent. 255. While pancuronium bromide paralyzes skeletal and voluntary muscles, including the diaphragm, it has no effect on consciousness or the ability to feel pain.
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256. Pancuronium bromide will serve only to mask the excruciating pam and convulsions suffered by Plaintiff.
257. Pancuronium bromide prevents a conscious individual from notifying anyone that he or she is conscious or in pain.
258. Pancuronium bromide prevents a conscious individual from showing any signs of consciousness or pain.
259. Defendants do not monitor for consciousness or pain after the injection of sodium thiopental or pancuronium bromide.
260. Many means of monitoring for consciousness after injecting pancuronium bromide exist, including blood pressure cuffs, EEG monitoring, usmg an EKG machine (if located in the execution chamber and read throughout the execution, not just at the end to determine death).
261. None of the above means of monitoring for consciousness after injecting sodium thiopental or pancuronium bromide are used by Defendants.
262. A condemned inmate who appears unconscious could feel pain because 1) less than the expected dose of the anesthetizing drug, sodium thiopental, has been successfully injected into the individual's bloodstream, or has failed to remain in the person's bloodstream; 2) sensitivity to sodium thiopental varies greatly among the population and some individuals; 3) the duration of the effectiveness of sodium thiopental has worn off; OR, 4) the concentration of sodium thiopental was insufficient to render the inmate unconscious to the point where the inmate cannot feel pain.
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263. If a condemned inmate regains consciousness or the ability to feel pain during an execution, the inmate will suffer the agony of suffocation and paralysis due to pancuronium bromide and the excruciating pain of potassium chloride.
264. The pain suffered by a conscious inmate would be less if Defendants replaced potassium chloride with some other chemical to stop the heart.
265. Pancuronium bromide collapses the lungs and, in a conscious person, causes the extreme agony of paralysis and suffocation.
266. Death by suffocation is akin to drowning. 267. Death by suffocation is akin to dying in a gas chamber. 268. Pancuronium bromide can cause individuals to have a gastric reaction that causes vomit to fill an inmate's mouth. 269. The vomit caused by the usage of pancuronium bromide can flow into a person's lungs causing suffocation. 270. Because pancuronium bromide paralyzes the diaphragm, a person is unable to regurgitate the vomit. 271. If a person is conscious when the vomit flows into the mouth, a person paralyzed by pancuronium bromide is likely to suffer extreme pain and suffering as the person silently chokes to death on vomit. 272. The American Veterinary Medicine Association (AVMA) condemns the use of neuromuscular blocking agents such as pancuronium bromide in the euthanasia of animals when a sedative (anesthetic or barbiturate) is administered.
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273. At least 31 states have made the use of pancuronium bromide on domestic animals illegal. Kentucky is one of a majority of States that have banned its use. K.R.S. section 321.181(17) and 201 K.A.R. 16:090.
274. Since legislatures began prohibiting using neuromuscular blocking agents with sedatives, no legislature or other governing body has expressly condoned this practice or repealed statutes forbidding it.
275. The first lethal injection procedure designed in the United States called for a paralytic agent to cause death.
276. Using pancuronium bromide or any chemical to stop respiration is not necessary to cause death.
277. Potassium chloride, the third chemical involved in Kentucky's lethal injection process, stops the prisoner's heart, and, thereby cause cardiac arrest and death.
278. With the use of potassium chloride, pancuronium bromide is not necessary to cause death.
279. Pancuronium bromide serves no legitimate purpose in a lethal injection execution, particularly considering the readily available alternative of conducting the lethal injection execution without pancuronium bromide.
280. Pancuronium bromide is administered to make the lethal injection process more aesthetically palatable for the official witnesses by preventing the witnesses from seeing any involuntary twitching, convulsions, or seizures that may be caused by the potassium chloride or the dying process itself.
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281. The involuntary muscle reactions caused by potassium chloride can be avoided by using many other non painful ways of stopping the heart that will not cause involuntary muscles reactions.
282. Eliminating pancuronium bromide from the lethal injection process will not increase the amount of pain that a condemned inmate suffers during the dying process.
283. Preventing official witnesses from seeing the effects of each chemical during the lethal injection process is not a legitimate reason to administer a drug, particularly when the drug increases the risk of inflicting horrific pain and suffering upon the condemned person.
284. Preventing witnesses from seeing the effects of the killing agent prevents public perception and awareness regarding that agent, and thus violates the Eighth Amendment to the United States Constitution because it prevents the public from moving towards an informed consensus either for or against the use of the killing chemical.
285. A chancery court in Tennessee has found the usage of pancuronium bromide during lethal injections to be arbitrary and unnecessary.
286. The use ofpancuronium bromide during an execution violates evolving standards of decency.
287. The use ofpancuronium bromide during an execution creates an unacceptable risk that Plaintiff will suffer an unnecessarily painful death.
288. Potassium chloride, the third chemical used m Kentucky's lethal injection process, is a strong alkaline chemical.
289. Potassium chloride is commonly used as road salt. 290. In Kentucky lethal injections, potassium chloride is used to stop the heart from beating, and thus to cause death.
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291. The EKG printout from the one lethal injection execution in Kentucky (that of Edward Harper) shows that Harper was alive when potassium chloride was administered and that potassium chloride caused his death.
292. During the execution of Clarence Ray Allen in California on January 17, 2006, a second administration of potassium chloride had to be administered because the first one did not kill him.
293. The dose of potassium chloride administered to Allen should have caused his death in less than a couple of minutes, as soon as the potassium chloride cycled through Allen's body.
294. The fact that a second dose of potassium chloride had to be administered to Allen establishes that the full dose of potassium chloride did not reach Allen's heart.
295. When potassium chloride reaches the heart in large doses, such as that used in Kentucky lethal injections, it causes a massive heart attack.
296. The administration of potassium chloride is extremely painful when administered intravenously.
297. Potassium chloride ravages the organs by causing an extremely painful burning sensation in every nerve as it courses through the body.
298. Pancuronium bromide prevents an inmate from expressing the pain caused by potassium chloride.
299. Potassium chloride can be replaced by many non-painful chemicals that would stop the heart in a short period of time without causing any convulsions.
300. Dilantin is a non-painful chemicals that would stop the heart in a short period of time without causing any convulsions.
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301. Veterinarians do not use potassium chloride in euthanizing animals. 302. Veterinarians euthanize animals by injecting a lethal dose of pentobarbital. 303. Pentobarbital is a long acting barbiturate. 304. Pentobarbital is a potential alternative to the tri-chemical cocktail used m Kentucky lethal injections. 305. Defendants have shown a deliberate indifference to the risk of inflicting unnecessary pain and suffering and towards serious medical needs, by copying lethal injection procedures from other states without investing meaningful and independent efforts to ensure that Kentucky's lethal injection execution procedures comply with contemporary medical standards and long-standing constitutional standards. 306. Upon information and belief, Defendants have conducted no scientific or medical studies concerning the chemicals and procedures they use for lethal injection since they were made aware of potential problems with the process in August 2004. 307. Defendants' failure to conduct medical or scientific tests on the chemicals since August 2004 and their failure to adopt alternative chemicals and procedures in light of the information presented to them since August 2004 shows their deliberate indifference towards known medical needs. 308. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because Warden Simpson, who is in charge of the prison where executions take place, has never been involved in an execution by lethal injection. 309. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because Warden Simpson, who is in charge of the prison where executions take place, has never witnessed an execution by lethal injection.
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310. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because execution team members regularly have had difficulty inserting the IV needle into test subjects during mock lethal injections.
311. The risk of unnecessary pain and suffering is grave because when the Kentucky Department of Corrections carried out its first and only lethal injection, unanticipated problems occurred and the Department of Corrections proceeded without correcting these problems.
312. According to witnesses at the execution of Edward Harper on May 25, 1999, it took ten minutes and at least three stabs with a needle to find a suitable vein to inject the chemicals.
313. According to witnesses at the execution of Edward Harper on May 25, 1999, within two minutes of the administration of sodium thiopental, Harper's face turned purple and became puffy.
314. Defendants did not determine if a purple and puffy face was normal during an execution by lethal injection, but continued with the execution.
315. Defendants have taken no steps subsequently to determine whether a purple and puffy face is normal during a lethal injection.
316. The risk of unnecessary pain and suffering is grave in Kentucky because the individuals responsible for mixing the chemicals, inserting the I.V.s, and injecting the chemicals are not adequately trained.
317. The risk of unnecessary pain and suffering and malfunctions in the lethal injection process is grave in Kentucky because Defendants inject the chemicals from outside the execution chamber by sending the chemicals through a tube that carries the chemicals to the vein rather than injecting the chemicals directly into the vein.
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318. The lethal injection chemicals travel through a tube in the wall for five feet before entering the condemned inmate.
319. Defendants could inject the chemicals directly into the vein if the executioner was inside the execution chamber and inserted the chemicals directly into the catheter.
320. Plunging the chemicals through a tube connected to a catheter rather than injecting the chemicals directly into the vein increases the risk that the condemned inmate will suffer unnecessary pain during his execution.
321. How fast the lethal injection chemicals are pushed through the plunger into the tube impacts whether the chemical will get into a person's vein.
322. How fast the lethal injection chemicals are pushed through the plunger into the tube impacts how long it will take for a chemical to take effect and how quickly that effect will wear off.
323. The executioner is not trained in how fast to push the plunger. 324. The executioner is not instructed on how fast to push the plunger. 325. The package inserts and labels on the lethal injection chemicals do not say how fast to push the plunger. 326. There is a high risk that the executioner may push the lethal injection chemicals into Plaintiffs too quickly or too slowly. 327. If the lethal injection chemicals are pushed into Plaintiff too quickly or too slowly, Plaintiff will suffer unnecessary pain. 328. Defendants use one size catheter to inject the lethal injection chemicals. 329. The size of the catheter used during lethal injections is different than the size standardly used in medical settings for drawing blood or inserting an LV.
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330. If too small a catheter is used during Plaintiffs execution, the chemicals will not reach Plaintiffs' bloodstream as quickly as they should.
331. Using too small a catheter creates an unnecessary risk that the injection of sodium thiopental will not prevent the inmate from feeling pain throughout the execution.
332. Plaintiff suffers from diabetes. 333. Plaintiff suffers from coronary artery disease. 334. Plaintiffs coronary artery disease causes problems with blood flowing throughout his body. 335. Because of problems with blood flow in Plaintiffs body, there is a likelihood that the chemicals will not flow through his body at the desire speed, causing him to suffer extreme pain during his execution. B. Facts relevant to inserting an I.V. 336. Defendants plan to insert two LV. lines into Plaintiff. 337. Different size catheters are used in medical proceedings depending on the height and weight of the patient and the size ofthe patient's veins. 338. If the catheter is too large, the vein could blow out. 339. A blown vein means that the chemicals would be going into a part of the body other than the vein or not entering the body at all if it causes the LV. to dislodge. 340. Injecting the lethal injection chemicals into a part of the body other than the vein would be extremely painful. 341. Injecting the lethal injection chemicals into a part of the body other than the vein would prevent the chemicals from having the desired effect.
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342. Injecting sodium thiopental into a part of the body other than the vein means that the thiopental would not render a person unconscious.
343. Defendants use only one size catheter during lethal injections. 344. Defendants do not take into consideration the condemned inmate's weight, height, or the size of the inmate's veins in determining what size catheter to use during the inmate's execution. 345. The size of the catheter used by Defendants during lethal injections is different from the size most commonly used when drawing blood or inserting an LV. in a medical setting. 346. The size of the catheter used in lethal injections increases the likelihood that Defendants will not be able to insert an LV. into Plaintiffs veins. 347. Training and experience in drawing blood is different from training and experience in inserting a catheter. 348. The LV. team has no experience in inserting a catheter. 349. The LV. team has no training in inserting a catheter. 350. Defendants will spend up to 60 minutes attempting to insert the two LV. lines. 351. The decision to spend up to 60 minutes inserting an LV. is a change to Defendants' execution procedures that occurred during the lethal injection litigation on behalf of Ralph Baze and Thomas Bowling. 352. Defendant Rees made the decision to require the execution team to attempt to insert the LV. for 60 minutes. 353. Defendant Rees did not consult any medical professionals concerning attempting to insert an LV. for 60 minutes prior to requiring the execution team to spend 60 minutes attempting to insert an LV.
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354. A "cut down" procedure is a surgical procedure used to obtain access to a vein when an intravenous port cannot be established.
355. A "cut down" procedure involves the use of a scalpel to make a series of incisions through the skin, the subcutaneous fat, and the underlying muscle, to reach a relatively deeply located central vein. The length of these incisions is in the range of two inches.
356. A "cut down" procedure can result in massive bleeding. 357. A "cut down" procedure can result in serious cardiac arrhythmias (abnormal beating of the heart causing shock). 358. A "cut down" procedure can cause pneumothora (lung collapse due to collection of air between the lung and chest wall). 359. The amount of pain suffered during a "cut down" procedure depends on the experience and skill of the person performing the procedure. 360. A "cut down" procedure can cause death. 361. A "cut down" procedure is not the preferred medical procedure for obtaining venous access. 362. In the medical profession, a "cut down" procedure is only utilized when a "percutaneous" procedure is not possible. 363. A "percutaneous" procedure (which involves using a needle and guidewire rather than a scalpel) is less invasive, less painful, easier to administer, and cheaper than a "cut down" procedure. 364. A "cut down" procedure is not mandated by K.R.S. section 431.220. 365. In Kentucky, doctors and nurses are not involved in obtaining venous access.
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366. In Kentucky, doctors and nurses are not permitted to intervene if complications arise from attempting to obtain venous access.
367. Defendants have stated that they are not adequately trained to perform a cutdown procedure.
368. The use of a "cut down" procedure despite alternative methods of obtaining venous access that pose less risk of causing death or extreme pain and suffering violates the Eighth Amendment to the United States Constitution.
369. Defendants have stated that they will not use a cut-down procedure or a percutaneous procedure to execute Thomas Clyde Bowling or Ralph Baze.
370. Defendants have not ruled out using a cut-down procedure or percutaneous procedure to insert an I.V. during Plaintiffs execution.
371. The circuit court Order in Baze v. Rees, which was not appealed, prohibits Defendants from inserting an LV. in the neck because doing so violates the Eighth Amendment cruel and unusual punishment clause.
372. Defendants may attempt to insert an I.V. into the groin. 373. Inserting an I.V in the groin creates an unnecessary risk of pain and suffering. 374. Inserting an I.V. in the groin mutilates the body. 375. Inserting an I.V. in the groin violates the dignity of man. 376. Defendants have stated that if they are unable to insert an I.V. after 60 minutes, they will ask Defendant Fletcher to call off the execution. 377. Defendants have not declared what they will do if Defendant Fletcher refuses to call offthe execution.
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378. If Defendant Fletcher refuses to call off the execution, Defendants may use a cut down procedure to insert an LV. into Plaintiff during his execution.
379. If Defendant Fletcher calls off the execution, Defendants will practice and attempt the same process of inserting a needle into Plaintiff.
380. This cycle of calling off Plaintiffs execution, practicing inserting LV.'s, rescheduling Plaintiffs execution, and performing the same method of inserting an LV. will continue repeatedly with no likelihood that Defendants will be able to insert an LV. into Plaintiff.
381. The likelihood that a problem will arise inserting an LV. needle is great because Defendants had difficulty inserting an I.V. needle in the only lethal injection execution they carried out, and because Plaintiff has bad veins.
382. In executing Edward Harper on May 25, 1999, it took Defendants ten minutes to access his veins.
383. The difficulty accessing Edward Harper's vein during his execution in 1999 was an unanticipated problem.
384. Prolonged drug use damages veins, causing a condition know as "bad veins," or "compromised veins."
385. "Bad veins" (compromised veins) make it difficult to insert an I.V. needle. 386. Defendants are aware that it is difficult to properly insert an LV. when a prisoner's veins have shrunk considerably because oflongtime intravenous drug use. 387. Plaintiff has a lengthy history of I.V. drug use. 388. Plaintiff suffers from diabetes. 389. Plaintiff has damaged (compromised or bad) veins.
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390. Throughout Plaintiffs incarceration, Defendants and their agents have had difficulty inserting LV. 'sin Plaintiff. They have had to make many attempts at inserting an LV. and resorted to alternative locations of the body.
391. It is likely that Defendants will have difficulty inserting an LV. into Plaintiff during his execution.
392. A person with bad veins likely will not be able to handle the flow of the lethal injection chemicals, causing the veins and other blood vessels to blow.
393. If veins or blood vessels blow during an execution, the chemicals will not have the desired effect.
394. Because of Plaintiffs bad veins, even if Defendants are able to insert an LV. into Plaintiff, the chemicals likely will not remain in his veins.
395. If the chemicals do not remain in Plaintiffs vems, Plaintiff will suffer an excruciatingly painful death.
396. It should only take two to three minutes to insert an LV. 397. Well before 20 minutes of attempting to insert an I.V. has elapsed, the inmate will experience a great deal of pain and discomfort. 398. After 20 minutes of attempting to insert an LV., the LV. team will have exhausted all available locations to insert a needle. 399. Attempting to insert a needle for 60 minutes mutilates the body in violation of the Eighth Amendment to the United States Constitution. 400. Attempting to insert a needle for 60 minutes is excessive in violation of the Eighth Amendment to the United States Constitution.
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401. Attempting to insert a needle for 60 minutes is unnecessarily painful in violation of the Eighth Amendment to the United States Constitution.
402. In light of Moore's compromised veins, subjecting him to the possibility of multiple attempts to execute him causes unnecessary psychological suffering, in violation of the Eighth Amendment to the United States Constitution.
C. Facts relevant to Defendants' inadequate equipment and personnel for maintaining life if a stay of execution is granted after the first or second chemical is administered. 403. Life can be maintained after 3 grams of sodium thiopental has been injected into a person. 404. Maintaining life after an injection of 3 grams of sodium thiopental would not be difficult if medical persormel certified in cardiac life support are present at the execution chamber and provided with the proper equipment. 405. Life can be maintained after the administration of pancuronium bromide during lethal injections. 406. Maintaining life after an injection of pancuronium bromide would not be difficult if medical personnel certified in cardiac life support are present at the execution chamber and provided with the proper equipment. 407. There are chemicals that will stop the heart, but are easier to reverse than potassium chloride. 408. EMT's, phlebotomists, and doctors ofgeneral medicine are not trained in how to reverse the effects of sodium thiopental or pancuronium bromide. 409. No member of Defendants' execution team is adequately trained in reversing the effects of sodium thiopental or pancuronium bromide.
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410. No doctor or medical professional is present inside the execution chamber to reverse the effects of sodium thiopental or pancuronium bromide.
411. Having a medical professional trained in how to reverse the effects of sodium thiopental and pancuronium bromide physically located in the execution chamber is essential to reversing the effects of the chemical before death occurs.
412. If a stay of execution is granted after sodium thiopental or pancuronium bromide is administered, Defendants have an obligation to take measures to maintain the life of the condemned inmate.
413. General Counsel for the Kentucky Department of Corrections and counsel for Defendant Rees, and Defendant Simpson is Jeff Middendorf.
414. Jeff Middendorf is not a medical professional. 415. During lethal injection litigation on behalf of Ralph Baze and Thomas Bowling, Middendort created a one page document on the duration of onset of the chemicals, and how to reverse the effects of the lethal injection chemicals. 416. This one page document is based on Middendorrs own research. 417. Middendorrs document is what Defendants are relying on in determining how to reverse the effects of the lethal injection chemicals. 418. Middendorrs one page document is incorrect on how to reverse the effects of the lethal injection chemicals. 419. Middendorfs one page document instructs Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemicals that could cause the inmate's death.
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420. Middendorfs one page document instructs Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemicals that would not reverse the effects of the lethal injection chemicals.
421. Middendorfs one page document fails to instruct Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemical that are absolutely necessary to reverse the effects of the lethal injection chemicals.
422. Defendants have a "crash cart" available purportedly to maintain life if a stay of execution is granted after sodium thiopental or pancuronium bromide is administered.
423. Defendants' crash cart does not have all the chemicals listed on Middendorfs one page document.
424. Defendant Haas designates the person who will operate the crash cart. 425. For the previously scheduled execution of Thomas Clyde Bowling, Defendant Haas was the individual who would operate the crash cart. 426. Defendant Haas is the Medical Director for the Department of Corrections. 427. Defendant Haas has not worked in an emergency medical setting since medical school. 428. Defendant Haas is a practicing psychiatrist. 429. Defendant Haas has not treated patients in many years. 430. Defendant Haas is not adequately trained in maintaining life after sodium thiopental or pancuronium bromide has been injected into a person. 431. No medical professional employed by the Kentucky Department of Corrections is adequately trained in maintaining life after sodium thiopental or pancuronium bromide has been injected into a person.
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432. The crash cart Defendants have available at the Kentucky State Penitentiary is insufficient to maintain life after sodium thiopental or pancuronium bromide has been administered.
433. Medications to increase blood pressure and contract the heart are necessary to maintain life after 3 grams of sodium thiopental has been administered.
434. Epinephrine is necessary to maintain life once 3 grams of sodium thiopental has been administered.
435. Once pancuronium bromide is administered, artifical ventilation is necessary to maintain life.
436. Artificial ventilation is not part of the equipment included on Defendants' crash cart.
437. Insulin is also necessary to maintain life if a stay of execution is granted after the lethal injection chemicals have begun to flow through the condemned inmate's body.
438. Insulin is not one of the drugs in Defendants' crash cart. 439. Neostigmine is necessary to maintain life if a stay of execution is granted after the lethal injection chemicals have begun to flow through the condemned inmate's body. 440. Neostigmine is not one of the drugs in Defendants' crash cart. 441. Because Defendants' crash cart does not contain the equipment necessary to maintain life after sodium thiopental or pancuronium bromide have been injected, Defendants' crash cart does not meet the minimum constitutional requirements for maintaining life. 442. It would not be difficult for Defendants to obtain the necessary equipment for maintaining life after the first or second chemical has been administered.
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D. Facts Relevant to the Due Process and Fundamental Fairness Claim. 443. The Due Process clause prevents a person from being sentenced to death and executed upon information that he is barred from refuting. 444. The Due Process clause requires notice and the opportunity to be heard prior to depriving a person oflife, liberty, or property. 445. In Kentucky, inmates sentenced to death prior to March 31, 1998 are permitted to choose electrocution. 446. In order to make a knowing and intelligent choice between lethal injection and electrocution, death sentenced inmates must have an opportunity to review the entire execution procedures for both methods. 447. Defendants refuse to disclose the execution procedures that will be utilized in carrying out Plaintiffs' executions. 448. Due process and notions of fundamental fairness mandate that Defendants provide Plaintiffs with a copy of the execution procedures that will be used to extinguish their lives so that they can make an intelligent and knowing decision of a method of execution. 449. Due process and notions of fundamental fairness mandate that Defendants provide Plaintiffs with a copy of the execution procedures that will be used to extinguish their lives so that they can independently determine whether a particular aspect of the lethal injection or electrocution process may constitute cruel and unusual punishment, and to consult medical experts concerning that possibility.
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E. Facts Relevant to the Electrocution Claim. 450. In Kentucky, condemned inmates sentenced prior to March 31, 1998, may choose between electrocution and lethal injection. 451. Plaintiffs will not select a method of execution. 452. The default method of execution in Kentucky is lethal injection. 453. If lethal injection is found unconstitutional on its face, Kentucky law requires executions to be carried out by electrocution. 454. Execution by electrocution violates the Eighth Amendment of the United States Constitution. 455. Nebraska is the only state in the country that utilizes electrocution as the sole method of execution. 456. Warden Simpson, who is in charge of the prison where executions take place, has never been involved in an execution by electrocution. 457. The Deputy Wardens at the Kentucky State Penitentiary have not participated in an execution by electrocution. 458. Execution by electrocution will cause Plaintiffs to consciously suffer an excruciatingly painful and protracted death. 459. The American Veterinary Medicine Association bans electrocution in the euthanasia of animals. 460. Electrocution causes death by asphyxia and cardiac arrest. 461. At least 2000 volts of electricity are necessary to cause heart death. 462. If heart death is not immediately achieved, execution by electrocution is excruciatingly painful.
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463. During an execution by electrocution, the body fluids heat to a temperature near the boiling point of water.
464. Execution by electrocution causes third and fourth degree bums. 465. Third and fourth degree bums are extremely painful. 466. Consciousness is controlled by the brain. 467. The human skull insulates the brain from high voltage electricity. 468. If high voltage electricity does not reach the brain, Plaintiff will remain conscious during his execution. 469. There are documented cases of condemned inmates who were alive after the first administration of electricity. 470. Condemned inmates' hearts have beaten after the flow of electricity has stopped. 471. The continued beating of the heart after the cessation of the current indicates that unconsciousness was not instantaneous. 472. Respiratory movement has been observed in condemned inmates after the flow of electricity has stopped. 473. Respiratory movement indicates brain function and a lack of instant incapacitation. 474. Respiratory centers are located near deep pain centers. 475. Respiratory movement shows that the pain centers are not instantly destroyed. 476. If Plaintiff is conscious during his electrocution, he will suffer an excruciatingly painful death by asphyxia and cardiac arrest. 477. Unnecessary pain and suffering is inherent in executions by electrocution. 478. Botched electrocutions have occurred in the United States.
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479. Execution by electrocution causes mutilation of the body including: a) severe bums to the face and scalp; b) bums to the legs; c) bums to other parts of the body; d) discoloring of the skin; e) layers of skin pealing and melting away; f) contortion of the limbs, fingers, and toes; g) vomiting blood; h) vomiting drool; and, i) exploding body parts.
480. The Commonwealth of Kentucky has carried out one execution by electrocution since 1962, the electrocution of Harold McQueen in 1997.
481. According to the post mortem examination of Harold McQueen conducted by the Western Regional Medical Examiner, McQueen suffered the following types of injuries from the electrocution:
a) a 1-2 rnrn ring like contact electrical bum encircling the parietal and frontal scalp, gray-brown in color, which was bordered by a Srnrn -1 ern rim of pallor, which was bordered by a lateral rim of up to 3crn. of subcutaneous congestion;
b) a 17 x 6 ern. "irregular" contact electrical bum on the right calf just below the knee;
c) partially charred skin with blistering; d) a 1-2 rnrn "C" shaped electrical bum on the right thigh;
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e) pressure marks from the electric chair straps present on the face, back of head, extremities, and abdomen;
f) red-purple ecchymosis (escape of blood into the tissue) on the right bicep; g) "irregular" red-purple ecchymosis on the upper left forearm; and, h) a cluster of red-purple petechiae (hemmorrhage) on the dorsal right foot. 482. Execution by electrocution violates the cruel and unusual punishment clause of the Eighth Amendment because electrocution: a) causes unnecessary pain and suffering; b) creates a risk of unnecessary pain and suffering; c) mutilates the body; d) serves no legitimate purpose considering the existence of readily available and less painful alternatives; and, e) violates evolving standards of decency.
VI. EXHAUSTION OF ADMINISTRATIVE REMEDIES 483. Exhausting administrative remedies through a prison grievance policy is not required for this type of action because the injuries are prospective in the sense that the injuries will not occur until the execution takes place. 484. On March 22, 2006, Plaintiff filed a grievance with the Kentucky Department of Corrections, in accordance with the grievance policy at the Kentucky State Penitentiary (where Plaintiff is incarcerated) (grievance is attached).
51

Case 3:06-cv-00022-KKC Document 1-1 Filed 04/19/2006 Page 52 of 58
485. Plaintiff's grievance challenged the chemicals and procedures used in lethal injections, the failure to maintain proper equipment to maintain life if a stay of execution is granted after the first or second chemical is injected, the means of inserting an LV., and execution by electrocution.
486. Plaintiff's grievance named the necessary parties to this action. 487. On March 27, 2006, Plaintiff's grievance was rejected as non-grievable because it is an "issue dealing with legislative mandate and court decisions." 488. Because Plaintiff's grievance was found to be non-grievable, there is no avenue of administrative appeals available to Plaintiff. 489. The Kentucky Department of Corrections refuses to accept an appeal of Plaintiff's grievance. 490. Plaintiff has exhausted all administrative remedies concerning the claims in this action through the Department of Corrections grievance process.
VII. CLAIMS FOR RELIEF Claim A - - administration of chemicals. 491. Defendants intend to extinguish Plaintiff's life by administering chemicals in a manner that creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. Claim B - - three chemical combination. 492. Defendants intend to execute Plaintiff by injecting a combination of three chemicals - - sodium thiopental, pancuronium bromide, and potassium chloride - - that creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
52

Case 3:06-cv-00022-KKC Document 1-1 Filed 04/19/2006 Page 53 of 58
Claim C - - analgesic 493. Defendants' failure to administer an analgesic during the lethal injection process creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim D - - sodium thiopental 494. Defendants' use of sodium thiopental as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim E --- sodium thiopental with Plaintiff's risk factors 495. Using sodium thiopental to execute Plaintiff will create an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution, because Plaintiff is overweight and suffers from cardiovascular disease.
Claim F - - deliberate indifference to Plaintiff's risk factors 496. Defendants' intentions to use sodium thiopental to execute Plaintiff despite his severe obesity and his cardiovascular disease constitutes deliberate indifference to known medical needs, in violation of the Eighth Amendment to the United States Constitution.
Claim G - - pancuronium bromide as lethal injection chemical 497. Defendants' use of pancuronium bromide as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
53

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Claim H - - pancuronium bromide preventing public perception of effects of chemicals 498. The use of pancuronium bromide prevents public awareness necessary to any
change in consensus for or against lethal injection, in violation of the Eighth Amendment to the United States Constitution.
Claim I - - pancuronium bromide under standards of decency 499. The use ofpancuronium bromide does not conform with evolving standards of decency, and thus, Defendants' use of pancuronium bromide violates the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.
Claim J-- potassium chloride 500. Defendants' use of potassium chloride as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim K - - deliberate indifference involving the chemicals 501. Defendants' adoption of lethal injection chemicals on the basis that other states use the same chemicals, their failure to consult with medical professionals, and their failure to consider using alternative chemicals for lethal injections after they were put on notice of problems with the lethal injection chemicals and less painful alternative chemicals that could be used to carry out lethal injections constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
54

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CLAIM L - - monitoring to ensure that the inmate does not feel pain after sodium thiopental injected
502. Defendants' failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM M - - deliberate indifference for not monitoring to ensure that the inmate does not
feel pain after sodium thiopental injected 503. Defendants' failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide creates constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM N - - monitoring to ensure that the inmate does not feel pain after pancuronium bromide is injected
504. Defendants' failure to ensure that the condemned inmate is incapable of feeling pain after the injection ofpancuronium bromide creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM 0 - - deliberate indifference for not monitoring to ensure that the inmate does not
feel pain after pancuronium bromide is injected 505. Defendants' failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
55

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CLAIM P - - training of execution team 506. Defendants' failure to provide adequate training in inserting I.V.'s, mixing lethal injection chemicals, injecting the lethal injection chemicals, and monitoring to ensure that the condemned inmate cannot feel pain creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM Q-- cut-down procedure 507. The use of cut-down procedure creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM R-- inserting an I.V. in the groin 508. Inserting an I.V. in the groin creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIMS-- attempting to insert an I.V. for up to 60 minutes 509. Attempting to insert an I.V. for up to 60 minutes causes excessive pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM T-- pain from attempting to insert I.V. for up to 60 minutes 510. Attempting to insert an LV. for up to 60 minutes creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM U-- mutilation by attempting to insert I.V. for up to 60 minutes 511. Attempting to insert an I.V. for up to 60 minutes mutilates the body in violation of the Eighth Amendment to the United States Constitution.
56

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CLAIM V- - not having a guaranteed method of obtaining venous access 512. Defendant's failure to have a guaranteed means for accessing Plaintiffs veins, in light of his compromised veins and other health problems, will cause Plaintiff unnecessary psychological suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM W-- deliberate indifference for not having guaranteed means of accessing
Plaintiff's veins 513. Defendant's failure to have a guaranteed means for accessing Plaintiffs veins, in light of his compromised veins and other health problems, evinces deliberate indifference towards known medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM X - - maintaining life if a stay of execution is granted after the first or second chemical is administered.
514. Defendants' failure to have the proper equipment, chemicals, and personnel available at the execution chamber in case a stay of execution is granted after the first or second chemical is administered constitutes the arbitrary deprivation of life in violation of the Eighth Amendment and violates substantive due process.
CLAIM Y - - deliberate indifference involving maintaining life if a stay of execution is granted after the first or second chemical is administered.
515. Defendants' failure to have the proper equipment, chemicals, and personnel available at the execution chamber in case a stay of execution is granted after the first or second chemical is administered is deliberate indifference towards known medical needs in violation of the Eight Amendment to the United States Constitution.
57

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CLAIM Z - - deliberate indifference for lack of training in emergency cardiac life support 516. Defendants' failure to adequately train its personnel in reversing the effects of the
chemicals and in emergency cardiac life support is deliberate indifference towards known medical needs in violation of the Eighth Amendment to the United States Constitution because despite knowing that a stay of execution could be granted after the first or second chemical is administered, Defendants have done nothing to ensure that their execution team is adequately trained to maintain Plaintiffs life if such a stay is granted. CLAIM AA - - deliberate indifference for not seeking medical advice on what equipment,
chemicals, and personnel are necessary to maintain life after the first or second chemical is injected.
517. Defendants' reliance on their general counsel, who is not a medical professional, to inform them of what chemicals, personnel, and equipment is necessary to maintain life after sodium thiopental or pancuronium bromide is injected, rather than consulting medical professionals experienced with these chemicals, is deliberate indifference towards known medical needs, in violation of the Eighth Amendment to the United States Constitution.
CLAIM BB-- Refusal to provide Plaintiff with execution protocols. 518. Defendants' refusal to provide Plaintiff with a complete copy of the electrocution and lethal injection execution protocols deprives Plaintiff of federal due process and fundamental fairness because it prevents them from making a meaningful choice between methods of execution as permitted under Kentucky law, and because it prevents them from reviewing the execution procedures to determine if additional constitutional violations may exist for which they are currently unaware.
58

 
 Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
FRANKFORT DIVISION

JUN 1 6 2006

4 1 VfiAhlKFrJilT

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)

BRIAN KEITH MOORE,

)

)

Plaintiff

)

)

V.

)

JOHN D. REES,

Commissioner,

Kentucky Department of Corrections,)

Frankfort, Kentucky

1

1

THOMAS SIMPSON,

)

Warden, Kentucky State

Penitentiary, Eddyville Kentucky, )

1

SCOTT HAAS

Medical Director for the

Kentucky Department of Corrections )

ERNIE FLETCHER,

1

Governor of the Commonwealth )

of Kentucky

and,

)

) UNKNOWN EXECUTIONERS,

Defendants.

CIV. ACTION # 3~06-CV-22 CAPITAL CASE

MOTION TO INTERVENE AS PLAINTIFF-INTERVENOR

Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 2 of 11
Pursuant to Fed. R. Civ. P. 24(a) (2) and 24(b) (2), the proposed Intervenor Jeffrey Leonard’ hereby moves this Court for leave to intervene as a plaintiff in this action as of right. In the alternative, movant seeks permissive intervention. As a death sentenced inmate in the same procedural posture as Brian Keith Moore, Leonard has a significant interest in the subject matter of this case and the existing parties may not adequately represent that interest. Further, the parties to these proceedings will not be prejudiced by this information. The grounds for this Motion are set forth in the Memorandum below.
MEMORANDUM IN SUPPORT Plaintiff Brian Keith Moore, a Kentucky death sentenced inmate, filed this action under 42 U.S.C. $1983 for violations and threatened violations of his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Proposed intervenor Leonard is also a Kentucky death row inmate awaiting execution of his death sentence. The Federal District Court for the Western District of Kentucky granted Leonard’s petition for a writ of habeas corpus. However, on June 13th the United States Court of Appeals for the Sixth Circuit reversed the District Court, reinstating Leonard’s death sentence. Thus, Leonard is now in the
same procedural posture as Moore - - having been denied habeas relief by the Sixth
Circuit. Leonard is a true party in interest because he is similarly situated and asserts the
same cause of action as the Plaintiff, with the exception of compromised veins. Leonard’s
proposed complaint makes the same arguments as Moore. See Intervenor’s Proposed
’ James Slaughter’s real name is Jeffrey Leonard. He never officially changed his name, so for the purposes
of this litigation, he will be referred to as Jeffrey Leonard.
2

Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 3 of 11
Complaint (Exhibit 3). Specifically, he argues that the Commonwealth’s current lethal injection procedures including the chemicals the defendants plan to inject and the plans for injecting the chemicals are unconstitutional under both the Eighth and Fourteenth Amendments. Like Moore, he also challenges the defendant’s lack of adequate lifepreserving equipment and personnel if a stay of execution is granted after the first or second chemical is injected, as well as the constitutionality of electrocution.2 He should be allowed to intervene under Federal Rule of Civil Procedure 24(a), which allows for intervention of right because his rights would be not justly adjudicated if he were not allowed to join. If he is not allowed to intervene under Rule 24(a), he should be allowed to intervene under Rule 24(b), which allows for permissive intervention if he shares a question of law or fact with the original lawsuit and intervening will not substantially impair the rights of the original parties to the pending action.
A. Leonard Satisfies the Requirements for Intervention as of Right Set Forth in Fed. R. Civ. P. 24(a) (2). Rule 24 (a) of the Federal Rules of Civil Procedure provides in relevant part as follows: Upon timely application anyone shall be permitted to intervene in an
action...when the applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant‘s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
* In both Ohio and Arkansas, parties in the position similar to Leonard have been allowed to join parties
already involved in litigation similar to Moore. See Order Granting Motion to Intervene, Nooner v. Naris, No. 5:06cv001OOsww-jff (E.D.Ark. May 26, 2006) (attached as exhibit 1); Order Granting Jefiey Hill’s Emergency Motion to Intervene, Cooey v. TaJ, ef al. No. No. 2:04cv1156 (E.D.Ohio, Jan. 9, 2006) (attached as exhibit 2).
3

Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 4 of 11
Fed.R.Civ.P. 24(a) (2).3 The Sixth Circuit has interpreted Rule 24(a) (2) to lay out a fourpronged test to determine whether an individual can intervene as a matter of right. (1) Whether the applicant's application is timely; (2) whether the applicant claims an interest that relates to the property or transaction that is the subject of the action; (3) whether the applicant is so situated that disposition of the lawsuit may as a practical matter impair or impede his ability to protect that interest; and (4) whether the applicant's interest adequately represented by existing parties4 Any close cases should be viewed in favor of the proposed intervenor's interest in the subject matter of the underlying a ~ t i o n . ~ Leonard easily satisfies all four requirements.
1. Leonard's application is timely. Until June 13, 2006, Leonard's death sentence had been reversed. On June 13, 2006, the Court of Appeals for the Sixth Circuit reversed the District Court's grant of habeas relief. Only three days have passed from the time of the reversal of his habeas petition until the filing of this motion to intervene. Leonard moved to intervene as soon as it was feasible for him to do so. He is moving to intervene in a very timely manner. The defendants in this case have not filed any documents, save a request for a briefing schedule. Discovery has not yet begun, nor has the discovery conference occurred, allowing Leonard to intervene would not lead to a duplication of efforts in terms of the litigation process. Granting Leonard's application to intervene would not
3 See Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389 (6" Cir. 1993) (noting that applicants for intervention must show they have applied to intervene in a timely way, that they have a significant legal interest in the pending litigation, that the decision in the original lawsuit would impact their opportunity to protect their legal interest, and that the parties already involved in the suit cannot adequately protect the proposed intervenor's interest.); Jansen v. City ofCincinnati, 904 F.2d 336 (6" Cir. 1990) (noting that intervention of right is proper when intervenors intervene in a timely way, that they have a significant legal interest in the pending litigation, that decision of the original action may impair their ability to protect their legal interest, and that the parties already in the litigation cannot adequately protect the proposed intervenors' interest).
Purnellv. Akron, 925 F.2d 941 (6" Cir. 1991) 5 Grutter v. Bollinger, 188 F.3d 394 (6" Cir. 1999).
4

Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 5 of 11
lead to any harm to the defendants.6 Because there is no harm, the application must be timely.
2. Leonard has a significant legal interest in this case that relates to the transaction that is the subject of the action.
The Sixth Circuit has held that Rule 24(a) (2) does not require a specific’legalor equitable interest.’ Rather, an intervenor must have a legal interest that is sufficiently related to the legal interest of the parties already in the lawsuit in order to intervene. In making this determination, the intervenor’s “’interest’ is to be construed liberally.”8 Leonard satisfies this Circuit’s test.
The transaction or occurrence in this case is the carrying out of an execution by lethal injection and the means by which Defendants plan to do so. It is the interest in ensuring that this is done without an unnecessary risk of pain and suffering that is before this Court in Moore’s case and that is the interest Leonard seeks to protect. Both Moore and Leonard will be executed by Defendants in the same manner. Thus, Leonard seeks to protect the same rights that Moore is trying to protect in the same action, so this prong of the test for determining whether to permit intervention is satisfied.’
See Order Granting Motion to Intervene, Nooner v. Noris, No. 5:06cv00100sww-jff (E.D.Ark. May 26, 2006) (attached as exhibit 1); Order Granting Jeffrey Hill’s Emergency Motion to Intervene, Cooey v. T u ~ ,
’et al. No. No. 2:04cvl156 (E.D.Ohio, Jan. 9,2006) (attached as exhibit 2). Purnell, 925 F.2d at 948. Bradley v. Milliken, 828 F.2d 1186, 1192 (6’ Cir. 1987). 9 See Order Granting Motion to Intervene, Nooner v. Noris, No. 5:06cv001OOsww-jff (E.D.Ark. May 26, 2006) (attached as exhibit 1); Order Granting J e f i e y Hill’s Emergency Motion to Intervene, Cooey v. Taji, et al. No. No. 2:04cvl156 (E.D.Ohio, Jan. 9,2006) (attached as exhibit 2).
5

Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 6 of 11
3. Leonard’s ability to protect his interests will be impaired if he is not permitted to intervene.
A party seeking to intervene does not need “substantial impairment” of their interests or that “impairment will inevitably ensue from an unfavorable disposition.”” Rather, an intervenor is only required to make the low threshold showing that the disposition “may impede [their] ability to protect [their] interest.”” That is easily done here.
Because the issues that both parties are asserting are practically identical, if Leonard is not permitted to intervene, he may be collaterally estopped from asserting this claim at a later time under the doctrine of claim preclusion. Collateral estoppel may be asserted when a party had the opportunity to intervene in a case with similar or identical issues but chose not to. If Moore’s case on the merits is decided without allowing Leonard to intervene, it is possible that the Court would not allow Leonard to litigate the same issues, thus precluding his ability to obtain relief.
4. Leonard’s interests are not adequately represented by Moore. During the pendency of Moore’s lawsuit or even if Moore prevails, Moore’s suit will not prevent the defendants from asking for an execution date on Leonard and carrying out his execution. Moore’s case is a perfect example of this. Despite lethal injection litigation on behalf of Ralph Baze and Thomas Bowling that stopped their executions until the litigation is completed, the defendants asked for an execution warrant on Moore. No matter what the status is of Moore’s litigation, the defendants will likely do the same thing with Leonard unless he is allowed to join this litigation.
lo Purnell, 925 F.2d at 948. ” Id at 947. (emphasis in opinion).
6

Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 7 of 11
In light of the Supreme Court of the United States’ decision in Hill v. McDonaugh’’, preventing Leonard from intervening could result in a situation where Leonard is executed not because of the merits of his lethal injection case because of the timeliness of his lawsuit. For these reasons, Moore cannot adequately request Leonard’s interests.
B. Leonard Satisfies the Requirements for Permissive Intervention Set Forth in Fed. R. Civ. P. 24(b) (2).
If Leonard is not allowed to intervene as a matter of right, he should be permitted to intervene pursuant to Rule 24(b)(2) because he is asserting an identical Eighth and Fourteenth Amendment claim asserted by Moore in this action. Rule 24@)(2) allows a party to permissively intervene when the party makes a timely application to intervene in an action that shares a common question of law or fact with the party seeking to intervene. l 3 Leonard’s motion to intervene is timely and raises a “question of law or fact in common” with Moore’s claim. In addition, the defendants will suffer no harm from Leonard intervening in this suit.
Leonard’s appeal was decided on Tuesday, June 13, 2006, placing him the same procedural position as Moore. Leonard could not have intervened earlier because until June 13, he had been granted relief from the District Court. Thus, until the Sixth Circuit reversed the grant of relief, Leonard was not under a sentence of death. On June 13, his appeal in the Court of Appeals for the Sixth Circuit was decided against him, reinstating his death sentence. Because only three days have passed since the Sixth Circuit reinstated Leonard’s death sentence and Leonard has moved to intervene, his motion is timely.
I’ 547 S.Ct. ----2,006 WL 1584710 (June 12,2006) (slip op.) I’ PurneN 925 F.2d at 950.
7

Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 8 of 11
Second, Leonard raises an issue of law or fact that is in common with Moore. Both parties are contesting the use of certain procedures. Both parties have been sentenced in an identical way, and under Kentucky law, their executions are to be carried out in an identical way. Both parties challenge the constitutionality of the chemicals used in the lethal injection process, as well as the insertion of the needle during the actual execution. Because these issues of law or fact are common to both Moore and Leonard, Leonard should be allowed to intervene to obtain relief.I4
Finally, allowing Leonard to intervene will not “unduly delay or prejudice the adjudication of the rights of the original parties.”” The defendants have not filed any responsive pleadings, and discovery has not yet begun. Because Moore’s suit is in its early stages, it would not require duplication of efforts that have already been put forth. In addition, Leonard is not raising only additional claims, so allowing Leonard to intervene will now overburden the defendants or require additional time for them to respond. Thus, neither Moore nor the defendants will be unduly delayed or prejudiced by Leonard intervening in this suit.I6
C. Administrative Remedies Finally, although not required for intervening, Leonard has not exhausted his administrative remedies. However, this should not affect this Court’s decision on his intervention for three reasons. First, exhausting administrative remedies is not a requirement to intervene. As this Court ruled in the June 13, 2006 order in Moore’s case,
l4 See Order Granting Motion to Intervene, Nooner v. Noris, No. 5:06cv00100sww-jff (E.D.Ark. May 26, 2006) (attached as exhibit 1); Order Granting Jeffrey Hill’s Emergency Motion to Intervene, Cooey v. Tap, et al. No. No. 2:04cvl156 (E.D.Ohio, Jan. 9,2006) (attached as exhibit 2). Is Fed. R. Civ. P. 24(b). l6 See Order Granting Motion to Intervene, Nooner v. Noris, No. 5:06cv00100sww-jff (E.D.Ark. May 26, 2006) (attached as exhibit 1); Order Granting Jeffrey Hill’s Emergency Motion to Intervene, Cooey v. TaJ, et al. No. No. 2:04cvl156 (E.D.Ohio, Jan. 9,2006) (attached as exhibit 2).
8

Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 9 of 11
there is nothing suggesting that the Prison Litigation Reform Act overrules the Federal Rules of Civil Procedure. Thus, since the Federal Rules of Civil Procedure do not mention exhaustion of administrative remedies in the context of intervention, doing so is not a prerequisite to intervening in a lawsuit. Second, Leonard is dealing with prospective injuries that cannot be remedied after they occur. Third, exhausting administrative remedies should be excused because there is no adequate corrective process for doing so. Moore filed a grievance with the prison. That grievance was rejected as non-grievable because it involved a statute. Thus, there is no adequate process for grieving this claim through the inmate grievance system. If Leonard filed a grievance, it would be treated in the same way. Thus, there is no relief that can be afforded through the administrative grievance process, and therefore there is no available administrative remedy to exhaust. Leonard should not be required to exhaust his administrative remedies because will be no relief given from them.17
” See Order Granting Jefiey Hill’s Emergency Motion to Intervene, Cooey v. Tuft, et ul. No. No. 2:04cvl156 (E.D.Ohio,Jan. 9,2006) (attached as exhibit 2).
9

Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 10 of 11

Conclusion For the foregoing reasons, proposed Intervenor Leonard respectfully requests that his motion be granted and that he be permitted to intervene in the instant action.

RESPECTFULLY SUBMITTED,

J J$LLYQ
DAVID M. BARRON
Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 ( f a )

m*,& & w s

MA&UERITE NEILL THOMAS gf-.

Assistant Public Advocate

3””’; 1

Department of Public Advocacy 100 Fair Oaks Lane, Suite 301

w{6-

Frankfort, Kentucky 40601

502-564-3948 (office)

502-564-3949 ( f a )

COUNSEL FOR JEFFREY LEONARD June 16,2006.

10

Case 3:06-cv-00022-KKC Document 36-1 Filed 06/16/2006 Page 11 of 11
CERTIFICATE OF SERVICE
I hereby certify that on this date, I caused a true and correct copy of the foregoing
Motion to Intervene as Plaintiff-Intervenor
and its accompanying proposed order and exhibits to be served via personal delivery, on the following individuals:
Hon. Jeff Middendorf Hon. Thomas Self Hon. Holly Harris-Ray Counsel for Defendants Department of Corrections 125 Holmes St Frankfort, Kentucky 40601
Hon. Susan J. Balliet Hon. David M. Barron Hon. Marguerite Thomas Counsel for Brian Keith Moore 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601

June 16,2006.

fiLAkLd
COUNSEL FOR JEFFREY LEONARD

11

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 Case 3:06-cv-00022-KKC Document 37 Filed 06/16/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

Eastern Districa of ~ e , ~ t ~ ~
FlLEB

FOR THE EASTERN DISTRICT OF KENTUCKY

FRANKFORT DIVISION

JUN 1 6 2006

BRIAN KEITH MOORE,

1

)

Plaintiff

1

1

V.

1

JOHN D. REES,

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

THOMAS SIMPSON, Warden, Kentucky State Penitentiary, Eddyville Kentucky, )

)

SCOTT HAAS

1

Medical Director for the

Kentucky Department of Corrections )

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

) and,
1

UNKNOWN EXECUTIONERS,

)

1

Defendants.

)

CIVIL ACTION # 3106-CV-22 CAPITAL CASE

MOORE’S RESPONSE TO JEFFREY LEONARD’S MOTION TO INTERVENE Because Jeffrey Leonard is similarly situated to Brian Keith Moore, raises the
same legal challenge to the chemicals and procedures Defendants plan to use to carry out Moore’s execution, and because Moore’s lethal injection case is still in its infancy, Moore does not object to Leonard intervening in this case. Moore, however, writes

Case 3:06-cv-00022-KKC Document 37 Filed 06/16/2006 Page 2 of 3

separately to point out that Leonard intervening in this action should have no impact on this Court’s June 13,2006 order and the orderly resolution of this case. The claims raised by Leonard are part of Moore’s litigation. Thus, Leonard intervening in this case will have no impact on Defendants’ ability to respond to Moore’s complaint by the deadline set by this Court on June 13, 2006. It also will have no impact on the additional deadlines this Court has set and the orderly resolution of this case. In conclusion, Moore does not object to Leonard intervening, but believes that Leonard’s intervention is not grounds for resetting the deadlines this Court just imposed on Defendants.

RESPECTFULLY SUBMITTED,

DAVID M. BARRON Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

Assistant Public Advocate 3W“-
Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 4060 1 502-564-3948 (office) 502-564-3949 (fax)
June 16,2006.

3lJ-r‘-

2

Case 3:06-cv-00022-KKC Document 37 Filed 06/16/2006 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on this date, I caused a true and correct copy of MOORE’S RESPONSE TO JEFFREY LEONARD’S MOTION TO INTERVENE to be served via personal delivery on the following individuals:
Hon. Thomas Self Hon. Holly Harris-Ray Hon. Jeff Middendorf Department of Corrections 125 Holmes Street Frankfort, Kentucky 40601

June 16,2006.

COUNSEL FOR BRIAN KEITH MOORE

3

 
 Case 3:06-cv-00022-KKC Document 38-1 Filed 06/20/2006 Page 1 of 6

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

J&te3.,

CIVIL ACTION NO 06-CV-22-KKC

BRIAN KEITH MOORE

PLAINTIFF

vs :

ANSWER

JOHN D. REES, ET AL.

DEFENDANTS

Come the defendants, and for their Answer to the Complaint For Declaratory Judgment and Injunctive Relief, state as follows:
I. ANSWER FIRST DEFENSE The complaint fails to state a claim upon which the relief sought within can be granted and, therefore, should be dismissed, in its entirety. SECOND DEFENSE The issues raised in the complaint have been previously litigated in the Franklin County Kentucky Circuit Court, and therefore are precluded from review pursuant to the doctrines resjudicata and collateral estoppel. THIRD DEFENSE The matters raised in the complaint are subject to the doctrine of abstention and are precluded from this Court’s review.

Case 3:06-cv-00022-KKC Document 38-1 Filed 06/20/2006 Page 2 of 6
FOURTH DEFENSE The plaintiffs complaint is barred by the running of the applicable statute of limitations.
FIFTH DEFENSE
The plaintiffs unreasonable delay in raising his claims precludes equitable relief, including the injunctive relief prayed for by the plaintiff.
SIXTH DEFENSE At all relevant times, the lethal injection protocol relied upon by the Department of Corrections (DOC) has served and does serve a rational and reasonable purpose and/or has promoted and does promote the public health, safety, and welfare of the citizens of the Commonwealth and others who rely upon the orderly imposition of lawfully imposed punishments for crimes. Defendants assert and rely upon same as a complete and/or partial bar to the claims that are asserted within the plaintiffs complaint.
SEVENTH DEFENSE 1. Defendants admit the allegations within paragraphs 1, 7, 21, 22, 23, 24,25,30, 32 (as limited to executions performed by the Commonwealth), 34,35,36, 37, 38, 42, 45, 50, 51, 52, 54, 57, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 86, 88, 92, 93,96, 97, 100, 101, 102, 103, 104, 105, 106, 107, 108, 110, 111, 115, 116, 126, 132, 137, 144, 152, 153, 158, 163, 199, 244, 248, 250, 251, 253, 254, 261, 277, 288, 290, 291, 318, 325,332,336, 350, 351, 352,364, 369, 371,376,377, 379, 388, 412, 413,414,422,426,428,433,434,436,438,440,444,445,447,450,452,4563,, 480,481,483,484,485,486,487,488,489, and 490 of the complaint.
2

Case 3:06-cv-00022-KKC Document 38-1 Filed 06/20/2006 Page 3 of 6
2. Defendants deny the allegations within paragraphs 3, 8, 9, 10, 11, 12, 13, 14, 26,47, 48,49, 53, 55, 56, 59,60, 67, 68, 91, 94, 109, 112, 127, 128, 130, 131, 138, 146, 150, 154, 155, 156, 227, 228, 229, 241, 242, 243, 247, 249, 256, 259, 278, 279, 280, 284, 286, 287, 305, 307, 308, 309, 310, 311, 316, 317, 320, 323, 324, 326, 328, 329, 330, 331, 334, 335, 343, 344, 345, 348, 349, 353, 367, 368, 370, 372, 373, 374, 375, 378, 380, 381, 382, 383, 390, 391, 397, 398, 399, 400, 401, 402,410, 415, 416, 417, 418, 419, 420, 421, 427, 429, 430, 431, 432, 441, 443, 446, 448, 449, 454, 457,458,477,479,482, and Claims A through DD of the complaint.
3. Defendants are without sufficient knowledge or information regarding the Plaintiffs statements or the underlying premise of the Plaintiffs claim to admit or to deny the allegations within paragraphs 4,5,6, 15, 16, 17, 18, 19,20,27,28,29,3 1, 33, 39,40,41,43,44,46, 58, 60, 62, 63, 64, 65, 66, 69, 70, 71,72, 73, 74, 85,87, 89, 90, 95, 98, 99, 113, 114, 117, 118, 119, 120, 121, 122, 123, 124, 125, 129, 133, 134, 135, 136, 139, 140, 141, 142, 143, 145, 147, 148, 149, 151, 157, 159, 160, 161, 162, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 200 through 226, 230 through 240, 245, 246, 252, 255, 257, 258, 260, 262 through 272,273,274,275,276,281,282,283,285,289,292 through 304,306,312, 313, 314, 315, 319, 321, 322, 327, 333, 337, 338, 339, 340, 341, 342, 346, 347, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 365, 366, 384, 385, 386, 387, 389, 392, 393, 394, 395, 396, 403,404, 405, 406, 407,408, 409, 411, 423, 424, 425, 435, 437, 439, 442, 451, 455, 459 through 476 and 478, of the complaint and, therefore, deny same.
3

Case 3:06-cv-00022-KKC Document 38-1 Filed 06/20/2006 Page 4 of 6
4. Defendants admit the allegation within paragraph 2 of the complaint that no government in the United States may use a method of execution that violates the Eighth Amendment’s protections against cruel and unusual punishment, however the Defendants deny the method currently employed in Kentucky violates said protection.
5 . Defendants deny any and all other allegations within the complaint including, but not limited to, those within the plaintiffs’ preliminary recitations and prayer for relief that are not otherwise addressed herein.
EIGHTH DEFENSE 1. The matter brought by this plaintiff was brought in the Franklin County, Kentucky, Circuit Court in September 2004, by the Department of Public Advocacy, and most of the present plaintiffs attorneys represented the plaintiffs in that case. Please see, Ralph Baze and Thomas Bowling v. Rees, et al., 04-CI-1094, and attached Order overruling approximately all of the same issues raised in the present case. 2. The trial court in Baze and Bowling v. Rees allowed plaintiffs counsel to conduct approximately 17 depositions, (over 30 were requested) and conducted a bench trial into the allegations that consumed twelve days of work (from 9 a.m. to 5 p.m.) and in which over 20 persons testified. At the end of this, the trial court found
Kentucky’s lethal injection protocol satisfactory, with the one exception that an IV
line could not be placed into the neck for purposes of executing a person.
4

Case 3:06-cv-00022-KKC Document 38-1 Filed 06/20/2006 Page 5 of 6
3. The plaintiffs have appealed that decision, however, a new plaintiff, is now attempting to revisit the same issues and shop for a favorable forum in the present court.
NINETH DEFENSE The plaintiffs challenge to the constitutionality and methodology of electrocution is waived or otherwise mooted due to plaintips decision not to select electrocution as the method of execution pursuant to KRS 43 1.220, and therefore is not a proper subject matter of this civil action.
WHEREFORE, the defendants demand judgment that the Complaint For Declaratory Judgment and Injunctive Relief be dismissed with prejudice, and for all other relief to which defendants are entitled.
Respectfully submitted,
fl-----.-
MHOR~ASSELF
HOLLY HARRIS-L Y Justice and Public Safety Cabinet Office of Legal Services 125 Holmes Street, Second Floor Frankfort, Kentucky 40601 Telephone: 502-564-3279 COUNSELS FOR DEFENDANTS
5

Case 3:06-cv-00022-KKC Document 38-1 Filed 06/20/2006 Page 6 of 6
CERTIFICATION OF SERVICE This is to certify that the original of the foregoing Answer was hand-delivered this is 20" day of June, 2006 to the United States District Court, Eastern District of Kentucky at Frankfort, 3 13 John C. Watts Federal Building, 330 West Broadway,
tf Frankfort, KY 40601 and a true and correct co y of the foregoing Answer was
mailed, first-class, postage pre-paid this the 20 day of June, 2006 to: David M. Barron Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, KY 40601 Susan J. Balliet Assistant Public Advocate Department of Public Advocacy 100Fair Oaks Lane, Suite 301 Frankfort, KY 40601 Marquerite Neil1 Thomas Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, ICY 40601
6

..
" Jut-08-2005Ca0s7e:583A:M06-cFvRO-M0-0022-KKC Document 38-2 Filed 06/20/2006 PaT-g25e3 1 oPf.01024/015 F-017

COMMONWEALTHOF KENTUCKY FRANKLIN CIRCUIT COURT

mIEuED
JUL = 8 2005

RALPH BAZE

and

THOMAS C. BOWLING

V.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

JOHN REES,Commissioner
Kentucky Department of Corrections

and

GLENN ELAEBERILIN, Warden Kentucky State Penitentiary

and

ERNIE FLETCHER,Governor
Commonwcalth of Kentucky

PLAINTIFFS
DEFENDANTS

This action involves a challenge to the constitutionality of Kentucky's death
penalty lethal injectionprotocol on grounds that it constitutes cruel and unusual
punishmentunder the Eighth Amendment to the United States Constitutionand Section
<. , 4
17 of the Kentucky Constitution.' There areno issuesbefore the Court involving the
Plaintiffs'guilt and convictions byjury, Nor are thejurys' recommended death sentences
at question. T h e only issue to be decided is the manner in which the Commonwealth of Kentucky will carry out the sentence on the condemned PlaintifB. A bench trial was .
' The E* Amendmenr 10the United Stat= ConstitutionHna Section 17 ofthe Kentucb Constitution state:
"Excessivebail shall not be required, nor excessivefmcs imposed, nor cruel and unusual punishmtnls
inflicted.'' i) *
,..

JUL-06-2005CaDs7e:593A:M06-cFvRO-M0-0022-KKC Document 38-2 Filed 06/20/2006 PaTg-2e53 2 oPf.01043/015 F-017
conducted and the partics have submitted post-trialbriefs. This Court now makes the following findingsof fact and conclusionsof law.
BACKGROUND In May of 1977, Oklahoma became the first state to adopt lethal injection. Execution thro@ the administrationofdrugs intravenously was recommended by Dr. Deutsch, then head of Oklahoma’sMedical School AnesthesiologyDepartmentbecause
lethal injection was “[w]ithout question... extremelyhumane in comparison to”
elemcution and lethal gas. The typical lethal injectionconsists of three chemicals. The first chemical is an ultra-short actingbarbiturate, sodium thiopental (trademark name Sodium Pentathol). The second chemical is pancuronuimbromide (trademarkname Pavulon), a muscular paralytic agent. The third chemical,potassium chloride, induces cardiac arrest.
Since Oklahoma’s adoption in 1977, thirtyseven States have approved lethal
‘ injectionas a means of execution. However, there is scant evidencethat edsuidg States’
adoption of lethal injection was supported by any additional medical or scientific studies that the adopted form of lethal injection was an acceptable alternative to other methods. Rather,it is this court’s impression that the various States simply fell in line relying
solely on Oklahoma’sprotocol from Dr. Deutsch in draftinl: and approving a hhal
injection protocol. Kentucky is no different.
’Deborah W.Demo, SymposfurnA d h s i n g Capital Punishment through Starurov Refonn.63 Ohio St.
LJ.63 (2002).
Id. ai 95-96.
~ l t h o u g hthe original letha injection protocol jtom Oldahornarecommended only the fim two chemicals,
Sodium Pentathol and Pavulon.
Id. at 98.
6Sranfordv. Kencucb, 492 US.361,362 (1989), ubroEaed byRoperv. Simmons, 125 S.Ct. 1183 (2005).
2

JUL-08-2005 Ca07s:e5aA3M:06-FcRvO-M0- 0022-KKC Document 38-2 Filed 06/20/2006 PTa-g25e3 3 oP.f01044/015 F-017
In 1998, the General Assembly of the Commonwealth ofKentucky adopted Iethal injection as a method of execution. The relevant statute, KRS 431.220, states in part:
“every death sentence shallbe executed by continuousintravenous injectionof a substance or combinationof substances sufficientto cause death.”Thereafter,Phillip Parker, Warden at the Kentucky State Penitentiary, instituted a protocol for the injection of Sodium Thiopental.PancuronimBromide, and Potassium Chloride. On May 25,
1999, Eddie Lee Harperbecame the firstand only inmate to date to be executed under
Kentucky‘s lethal injection protocol. The Plttintifi in the case at hand, Ralph Baze and Thomas C.Bowling, are both
death sentenced inmates under the supervisionof the Kentucky Department of Corrections,and held the Kentucky State Penitentiary in Eddyvdle, Kentucky. By default, both Plaintiffshave selected the lethaI injection method of execution. See KRS 431.220(1)(b). The Plaintiffs filed this action in the Franklin Circuit Court pursuant to Civil Rules 57 (declaratoryjudgment) and 65.01 (injunctiverelief) forthreatened violations of their right to be free from cruel and unusual punishment under the Eighth Amendment ofthe United States Constitution and Section 17 of the Kentucky Constitution.
The Plaintiffs maintain that the Defendants’ lethal injection protocol violates their state and federal constitutional rights against cruel and unusual punishment because it utilizesthe drug pancuroniumbromide (Pavulon),provides only a low dose of a shortacting barbiturate (Sodium Pentathol), and fails to implement adequate execution
’ procedures. The Plaintiffs assert that the chemicals used causea level and riskof pain
’The Plaintiffsdso presented I! challenge to the use of a “cul down” procedure to obtain venous access,
which is no longer FIL issuc duc to Defendam’ volwlaty removal of the p r o d m h o r n the lethal injection
3

Jut-08-200C5 aOs?e:583AM:06-cFvRO-K0-0022-KKC Document 38-2 Filed 06/20/2006 PaTg-2e534 oPf.O1D45/015 F-017
that is more than the Constimioa tolerates and is unnecessary because readily available
alternatives exist that pose less risk of pain and suffering.
The Plaintiffs ask the Court to issue adeclaratoryj udgment that the Defendants’ proced~~aerse cruel and unusual because t h q (1) use pancuro~umbromide during an execution; (2) use potassium chloride during an execution; (3) fail to administer an analgesic; (4) use an ultra short acting barbiturate; (5) fkil to ensure that they are delivering an adequate concentration of sodium thiopental, (6)fail to specify the concentrationof sodium thiopental; (7) inserta needle into the condemned’s neck; (8) spend up to 60 minutes to insert an I.V.;(9) fail to monitor for anesthesia awareness; and
(10) lack equipment and trained personnel for resuscitation of life in the event of a stay, Last, the Plaintiffsrequest a declaratoryjudgment on the issue of whether the Defendants areviolating KFS 431.220 by not providing a continuous administration of the lethal injection chemicals.
The Defendants, Kentucky Department of Corrections Commissioner John D. R e e ~K,entucky State PenitentiaryWarden Glenn Haeberlin, and Governor Ernie Fletcher maintain that Kentucky’s execution protocol by lethal injection passes constitutional muster. The Defendants argue that the Plaintiffs have failed to demonstrate that Kentucky’s lethal injection protocol is incompatiblewith evolving standards of decency or involves the unnecessary and wanton infliction of pain. Rather, the evidence presented proves that there is no unnecessary pain inherent in an exmtion by lethal injectionand chemids utilized in the protocol accordingthe correspondingdosages would result in a quick and painless death.
protocol. The Plaintiffs also challengedthe constitutionality of electrocution,which this Courtdismissedin an order datcd October 13.2004. Neither Plaintiffhas elected to be c x c c u d by electrocution.
4

JUL-DS-2005 CaDs7e:583AM:06-cFvR-O0k0022-KKC Document 38-2 Filed 06/20/2006 Pa1-g25e3 5 oP.fO1064/015 F-017
Infiuther support of rhe validity ofkentucky's lethal injection protocol, rhe Defendants emphasize:(1) the protocol el'rminates any undue risk of consciousness, (2) the protocol allows medical professionalsdiscretion to paform &sir duties,(3) there is rnhknal risk of error in recomtituting Sodium Thiopental, and (4)any speculated risk of accident during the executionprocess does not need to be eliminated in order to survive constitutional review. In sum, the Defendants assert that the Plaintiffshave not demonstrated that Kentucky's lethal injection methodology creates an unreasonable and
medicallyunacceptablerisk of subjectingthem to undue pain and suffering.
STANDARD OF REVIEW This action was filedin accordmce with KentuckyRule of Civil Procedure 57. The PIahtiffs ask the Court for declaratoryjudgment that Kentucky's Iethal injection execution protocol violates or threatensto violate theirrights tobe fiee h m cruel and unusual punishment. To prevail, the Plaintiffs must establish this constitutional violation by a preponderanceof the evidence. Woo& v. Corn., 142 S.W.3d. 24,43 (Ky.2004). A method of execution is viewedas cruel and unusual punishmentunder the U. S.
Constitution when the procedure for execution creates a substautid risk of wanton and UMeCeSSary infliction of pain, torture or lingering death. Gregg v. Georgia. 428 U.S. 153,173 (1976)(plurality opinion). When considering whether the method of execution
violates the Eighth Amendment to the U.S. Constitutionprohibition on C ~ U Ean~dunusual
punishment,courts must consider whether such is contrary to evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86,101 (1958).
5

JUL-08-200C5 a0s7e:593A:M06-cFvR-O0M-0022-KKC Document 38-2 Filed 06/20/2006 PaTg-2e536 oPf.10047/015 F-017
Under Section I7 of the Kentucky Const;tution, a method of punishment is m e 1 and unusual if it shocks the moral sense of all reasonable men as to what is right and proper under the circumstances. Weberv. Corn., 303 Ky.56,196 S.W.2d 465,469 (Ky.
1946).
The framework for addressingthe constitutionalityof an execution method includes a d e t d a t i o n : (1) whether the method of execution comported with the contemporarynorms and standards of society; (2) whether it offends the dignity of the prisoner and society;(3) whether it inflicts unnecessaryphysical pain; and (4) whether it inflicts U M ~ C ~ S Sp~s~ycYhological suffering. Weems v. Unired Stales, 217 U.S. 349
(19 10).
FINDINGS OF FACT Based upon ',e evidence presented at trial, the Court &A as follows: 1. In 1998, fhe Commonwealth of Kentucky first drafted a lethal injection protocol. 2. Thosepersons assignedthe initial task of drafting the Commonwealthof Kentucky's first lethal injection protocol were provided with little to no guidance on draffing a lethal injection protocol and were resolved to mimr protocolsin other states, namely
Indiana, Virginia, Georgia, and Alabama. 3. In developing a lethal injection exeCution protocol, the Commonwealth of Kentucky,
Department of Corrections,did not conduct any independent scientific or medical studies or consult any medical professionals concerningthe drugs and dosage amounts to be injected into the condemneds. Nor were any medical personnel
Kcntucky appears to be no &at than any other srate or the Govcmmem ofthe United Stam. In addition, the Plaintiffs have not presenred any scientificsrudy mdicacjnga bcner methodofexecutionby lethal iajection.
6

JUL-08-2005 Ca0s8:eOD3AM:06-cFvRO-M0-0022-KKC Document 38-2 Filed 06/20/2006 PaTg-2e53 7 oPf.D1DB4/OlS F-017
consulted in 2004 when the lethal injection protocol dosage of sodium thiopental (trade name SodiumPentathol) was increased h r n 2 grams to 3 grams. 4. The current lethal injection protocol requires the injection of the following drugs in the condemned in the sequence of: Sodium Thiopental(3gm), Saline (25mg),Pavulon (50mg).Saline (2Smg), and Potassium Chloride (240 meq). Prior to execution by lethal injection, the condanned will be provided with a therapeuticinjection of Valium if requested 5. The current lethal injection protocol requires the Warden ofrhe Department of C o d o n s to reconstitutethe Sodium Thiopental into solution form prior to injection, The Warden has no formal training on reconstitutingthe drug, which requires inserting a syringe into the solution supplied by the manuhcturer until the entire solution is drawn from the vial into a sy-ringewhich is then injected into the powder and shakenuntil no precipitate remains. If the manufacturers’ instructions for reconstitution of Sodium Thiopental are folIowed, this Court finds there would be minimal risk of impropermixing, despite converse testimony that a layperson would have difficulty performing this task. 6. The current lethal injection execution protocol employs certified phlebotomists and emergency medical technicians( E m )to perform the necessary venipunchrres. These persons (I.V.Team)are prw&kd up to one (1) hour to find suitable IV sites and to correctly insert LV. cathetersin the arm, hand, leg, or foot of the condemned.
The one (1) hour window is not excessive but rather necessary due to potential problems that may arise when attempting a venipuncture including: failure to find a
suitable I.V. site, ‘l~lowouts,”problemswith scar tissue, and problems caused by
7

JUL-OB-ZOD5 Ca0sB:eOO3AM:06-cFRvO-M0-0022-KKC Document 38-2 Filed 06/20/2006 PaTg-2e53 8 oPf.D1D48/015 F-Dl7

nervousness. The possibility that there may be minor difficulty locating a vein does

not subject the inmate to offensive punishments the Eighth Amendment prohibits.

Reid v, Johnson, 333 F.Supp.2d 543,551 (E.D.Va., 2004).

7. The current lethal injectionexecution protocol provides the I.V.team with the option

of inserting a catheter into the neck of the condemned, by use ofthe carotid artery or

jugular vein. However, a medical doctor for the Dqartment of Corrections advised against this procedure and would not perform the procedure. The m d c a l staffwho

h\&

would perform this procedure are inadequately trained to do so and there are

substantidand unnecessaryrisksassociatedwith insertion of an intravenous catheter

into the carotid artery or jugular vein,

8. Sodium Tbiopental is an ultra short actingbarbiturate. Three (3) grams of Sodium

Thiopental, when administered properly, will render a person unconscious within one

(1) minute ofinjection. Sodium Thiopcntal is the “humane” component of

Kentucky‘s lethal injection protocol.

9. Pancuronium Bromide (Pavulon) is amuscularparalytic agent. Fifty (50) milligrams

of Pancuronium Bromide properly administered will cause the rapid onset of

paralysis in the condemned. T-he use of Pancuronium Bnxnide in Kentucky‘slethal
injectionprotocol s w e s no thwaueutic ~ u ropse. Its primary use is to prevent
f
muscular movements in the condemned,involuntary or othawise, that m a y result

from the subsequent injection of Potassium Chloride. P~curoniumBromide’s

secondary purpose in Kentucky’s lethal injection protocol is to stop respiration.

10. Potassium Chloride is utilized in Kentucky’s lethal injection protocol to ensure death.

Proper adminisnation of 240 rneq of Potassium Chloride will successfully induce

8

JUL-08-2005 Ca08s:OeOA3H:06-FcRvO-M0- 0022-KKC Document 38-2 Filed 06/20/2006 PaT-g25e3 9 oP.f01104/015 F-017
cardiac arrest in the condemned by disrupting electrical signaling necessary for proper heart function. 11. The contact of Sodium Thiopental with Pancuronium Bromide causes a precipitate,
which may cause serious problems in the execution process including clogging of the
LV. Line and inadequate Qsages of the drugs injected into the condemned. However, there is a minimal risk hat a precipitate will form. The lethal injection execution protocol contains the procedural safeguard of flushing the X.V. line with a saline soIution after the administmion of each drug to prevent residd contact. 12. Kentucky’s lethal hjjection protocol uses an electrocardiogram (EKG) to verify the
death of the condemned. Keotucky’s lethal i n j d o n protocol does not use the EKG
during administration of the drugs to monitor for consciousness. 13. Kentucky’slethal injection protocol does not use a blood pressure cuff during
administration ofthe drugs to monitor for consciousness.
14. A BIS (Bispectral Index) monitor is a device that uses algorithms h m EEG
(electroencephalograph) waves to monitor for co~lsciousness.It is not regular medical standard to use a BIS monitor during surgery to monitor for consciousness. Kentucky’s lethal injection protocol does not use a BIS monitor. 15. An automated defibrillatorand crash cart are present inthe event that a stay of execution is ordaed and the condemned is to be revived. There is a medical doctor present that will assist in any effort to revive the condemned prisoner. 16.Ifthere is a stay of execution, it is not probable that a condemned inmate will be revived aRer injection of the second drug, Pancuronium Bromide (Pavulon).
9

Jut-08-2005Ca0s8e:O3OA:M06-cFvRO-K0- 0022-KKC Document 38-2 Filed 06/20/2006 PaTg-2e5310 Po.0f111/4015 F-017
CONCLUSIONS OF LAW Based upon the above findings of fact, this Court makes the following
ConcIusions of law:
1. Kentucky’slethal injection protocol is not in violation of the literal language of KRS
431.220. The protocol provides for a continuous administrationof rhe lethal injection chemicals. The Plainti=’ argument to the contrary is predicated upon a strained interpretation of the “continuous adminislration” language in the statute. 2. The Plaintiffs have not demonstratedby a preponderance ofthe evidemce that Kentucky’s method of e x d o n by lethal injection deviates from contempmy norms and societal standards in capital punishment. See Stare ofConnecticut v. Webb,750A.2d 448,457 (2OOO)(“Of the thirty-eight states permitting capital punishment,at least thirty-fourhave adopted lethal injection as a manner of execution. They have done so because it is universallyrecognized as the most humane method of execution, least apt to causeunnecessarypain.”).
3. The Plaintiffshave not demonstrated by a prepondaance of the evidence that
Kentucky’smethod of execution by lethal injedon offends the dignity of the prisoners and society as a whole. 4. The Plaintiffshave not demonstrated by a preponderance ofthe evidencethat Kentucky’smethod of execution by lethal injection inflicts unnecessaryphysical pain upon the condemned. Although evidence was presented that other drugs were available that may decrease the possibility that the condemned may experience pain, the Eighth Amendment and Section 17 of the Kentucky Constitution do not provide .6-
I
protection against pain, only cruel and unusual pain. Moreover, the f‘act that other 80
.8-
>
10

JUL-08-2005Cas0Be:OO3A:M06-cFvRO-0M-0022-KKC Document 38-2 Filed 06/20/2006 PaTg-2e5311 Po.fD1124/015 F-017
drugs are availablethat m a y further assure fhat the condemned feels no pain, this Court may not requirethe legislature (or in this case the Executive Branch) to select
the least severe penalty possible so long as the penalty selectedis not cruelly inhumane. Greggv. Georgia,428 U.S. 153, 175 (1976). 5. The Plaintiffshave not dsmonstntd by a preponderance of the evidencethat Kentucky‘s method ofexecutionby lethal injection inflicts unnecessary psychological suffering upon the condemned.
6. The Plaintiffs have not demonstratedby aprepondenme of the evidence that Kentucky’s lethal injection protocol, as it pertains to revivingthe Plaintiffsin the event of a stay, is so inept that it deprivesthe Plaintiffi of due process and fundamental fairness. The New Jersey Superior Court, in In the Matier ofReadopiion wirh Amendments of the Death Penal~ReRegulatiom8, 42 A.2d 207,211 (2004), has stated that “an inmate who is being executed in error because a stay of execution has been issued after the injection is administeredis wrongfully deprived of due process and fundamental fairness.. .if the State does not take every feasible and possible step to correct that error.” The standards the Plaintiffswould have this Court apply would rquire that all executions take place in a trauma center with a team of cardiac surgeons standing by. The Kentucky lethal injection execbtion protocol takes the
necessary steps for revival d c i e n t b satisfy the due process rights of the Plaintiffs. 7. The Plaintiffs have demonstrated by a preponderanceof the evidence that the
procedure where the Department of Corrections attempts to insert an intravenous catheta into the neck through the carotid artery orjugularvein does create a substantialrisk of wanton and unnecessaryinfliction of pain, torture or lingering
11

JUL-08-2005Cas08e:O3IA:0M 6-cFvR-O0M-0022-KKC Document 38-2 Filed 06/20/2006 PaTg-e25312 Po.f0113/4015 F-017
death. Accordingly,that portion,and only that poreion, of Kentuclq‘s lethal injection pmtocol allowing for this procedure is stricken as violating the Plaintif%’ safeguards against cruel and unusual punishment under theEighth Amendment of the United States Constitutionand Section 17 of the Kentucky Constitution.
CONCLUSION
The citizens of the Commonwealth of Kentucky,throughtheir elected representatives,have chosen the death penalty as punishment for certainoffenses. These elected representativeshave also selected lethal injection as the method for carrying out this punishment. While the ultimate responsibility lies with the citizens, the duty of implementingthese decisionshas been delegated to the pers~mewl ho operate the institution where the death chamber is located. Those persons who developed Kentucky’s lethal injection protocol were apparently given the task without the benefit of scientific aid or policy oversight. Kentucky‘s protocol W ~ Scopied fiom other states and accepted without challenge until this action occurred.
This action may be the firstreal public discussion of the lethal injectionprotocol inKentucky. M g the come of thislitigation the protocol has been amended by the Department of Correctionsto increasethe dosage ofthe short actingbarbiturate, to drop one procedure (the cutdown), and the Department’s medical personnel have agreed that any injection in the neck is inappropriate. The unilateral actions by the Department are commendable.
The Department of Corrections should amend the current protorn1to eliminate the need to protect its contents h r n public view. This Court has specificallymaintained the
confidential nature of the security procedures surrounding an execution fwobvious
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reasons. Since the nature ofthe drugs used and the method for administering those drugs during an execution have been discussedpublicly in this action,there seems to be little reason why the Department of Corrections cannot publish a lethal injectionprotocol that does not compromise the security of tht institution or the personnel involved. The citizens of this Commonwealth arc entitled to know the method and manner for implementingtheirpublic policy.
There are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds. And althoughthis Court would prek that Kentucky's protocol for lethal injetion be based upon more independent medical or scientific studies,that is not a currentrequirement of the U.S. or Kentucky
Constitution. The Defendants are enjoined from utilizingthat portion ofthe protocol which
permits injection of lethal chemicals into the neck of the condemned prisoner. The execution protocol adopted by the Commonwealth of Kentucky, with the one exception, complieswith the constitutional requirements against cruel and unusualpmishment.

y< SO ORDERED this the

day of July, 2005.

This is a final and appealableorder,

ge, Franklin Circuit Court

D .9-

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Jut-08-2005Cas0e8:O3I:A0M 6-cvFR-D0U0- 022-KKC Document 38-2 Filed 06/20/2006 PagT-e25314 oP.f01154/015 F-017
DISTRIBUTION: Hon. Thmdore S. Shouse Assistant Public Advocate Department of Public Advocacy
207 Parker Drive, Suite 1 LaGrange, KY 4003 1
Hon. Je€fMid&ndo+ General Counsel Deparhnent of Corrections Justice and Public Safety Cabinet 2439 Lawrenceburg Road P.O.Box 2400 F d f o r t , KY 40602-2400
Hon.David A Smith
Hon. Brian T.Judy Assistant Attorney General Office of Criminal Appeals 1024 Capital Center Drive Frankfort, ICY 40601-8204
Won. Luke Morgan, General Counsel
Hon. Holly Harris-Ray Justice and Public Sdety W h e t
Bush BuiIding 403 Wapping Street Frankfort, KY 40601
Hon. Susan J. Balliet Hon. David M. Bamn Assistant Public Advocates Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, KY 40601
14

 
 Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
FRANKFORT DIVISION

)

JEFFREY LEONARD,l

)

)

Plaintiff

)

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON,

)

Warden, Kentucky State

)

Penitentiary, Eddyville Kentucky, )

)

SCOTT HAAS

)

Medical Director for the

)

Kentucky Department of Corrections)

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

)

and,

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

)

CIV. ACTION # CAPITAL CASE

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

1 James Slaughter's real name is Jeffrey Leonard. He never officially changed his name to James Slaughter. So, for purposes of this litigation, counsel uses the name Jeffrey Leonard.

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 2 of 59

I.

NATURE OF ACTION2

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

violations of Plaintiff s right to be free from cruel and unusual punishment under the Eighth and

Fourteenth Amendments to the United States Constitution. Plaintiff seeks equitable and

injunctive relief.

2. Defendants' current method of lethal injection is unconstitutional because there is

an unnecessary risk that Plaintiff will be tortured to death. No government within the United

States may intentionally or negligently use an excruciatingly painful and umeliable procedure or

chemical for carrying out executions, particularly when readily available alternative means of

carrying out the sentence exist.

3. Kentucky's alternative method of execution for individuals sentenced to death

prior to 1998, electrocution, violates the Eighth Amendment ofthe United States Constitution.

4. Kentucky uses three chemicals to carry out lethal injections: sodium thiopental,

pancuronium bromide, and potassium chloride.

5. Each of Defendants' lethal injection chemicals poses an unnecessary risk of pain

and suffering.

6. Defendants' execution procedures fail to ensure that personnel responsible for

anesthesia and monitoring of lethal injection are properly trained and qualified.

7. Monitoring to ensure that the inmate is in the appropriate plane of consciousness

to prevent the inmate from feeling pain is essential to ensuring that the condemned inmate does

not feel pain during an execution.

2 Plaintiff incorporates by reference the memorandum of law and exhibits filed by Brian Keith Moore in this case. 2

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 3 of 59
8. Defendants' protocol lacks standards for administering lethal injection and monitoring consciousness.
9. Defendants' fail to monitor for the appropriate plane of consciousness that prevents the condemned inmate from feeling pain during the execution by lethal injection.
10. Defendants' execution procedures fail to provide for identification of and addressing of contingencies that may occur during an execution, in event of problems.
11. Kentucky's failure to have adequate equipment to maintain life if a last minute stay is granted after the first or second chemical is administered and failure to have adequately trained individuals to operate the equipment violates the Eighth Amendment to the United States Constitution and federal due process.
12. Plaintiff is not alleging that Defendants could never execute him. Rather, he asserts that any execution must comport with the United States Constitution. Plaintiff could be executed if: 1) no separate legal challenge reverses his conviction or death sentence; 2) Plaintiff does not receive executive clemency; 3) Defendants design a constitutionally acceptable method for executing Plaintiff, which can include lethal injection if done in a manner that does not pose an unnecessary risk of pain and suffering, and which monitors for consciousness; and, 4) Defendants maintain proper equipment at the execution chamber for maintaining life if a stay of execution is granted after the first or second chemical is administered, and have adequately trained individuals at the execution chamber to operate the equipment and render life saving measures.
13. Plaintiff seeks a temporary restraining order and preliminary injunction preventing Defendants from carrying out his execution until Defendants come up with a means of guaranteeing venous access.
3

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 4 of 59
14. Plaintiff seeks a temporary restraining order and preliminary injunction preventing Defendants from carrying out his execution by the means currently employed for carrying out an execution by lethal injection in the Commonwealth of Kentucky.
15. Plaintiff does not claim that lethal injection is per se unconstitutional, but instead seeks an Order declaring that Defendants' current chemicals and means for conducting an execution by lethal injection violates the Eighth and Fourteenth Amendments to the United States Constitution.
16. Plaintiff also seeks an Order that Defendants' failure to have proper drugs and equipment for maintaining life if a last minute stay of execution is granted and Defendants' failure to have adequately trained personnel at the death chamber to operate the life-maintaining equipment violate due process and the Eighth Amendment to the United States Constitution.
17. Plaintiff seeks an Order declaring that electrocution violates the Eighth and Fourteenth Amendments.
II. PLAINTIFF 18. Plaintiff Jeffrey Leonard is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky. 19. Plaintiff s petition for a writ of habeas corpus was granted as to his death sentence by the United States District Court for the Western District of Kentucky. But on June 13,2006, the United States Court of Appeals for the Sixth Circuit reversed the district court, reinstating Plaintiffs death sentence.
4

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 5 of 59
III. DEFENDANTS 20. Defendant John D. Rees is the Commissioner of the Kentucky Department of Corrections 21. Defendant Thomas Simpson is the Warden of the Kentucky State Penitentiary, where Plaintiffs execution will occur. 22. Defendant Scott Haas is the Medical Director for Kentucky Department of Corrections. He is responsible for designating a physician to examine Plaintiff in the weeks leading up to his execution, and for designating a physician to be present at the execution facility to render medical treatment if a stay of execution is granted after the first and/or second chemical is administered. 23. Defendant Ernie Fletcher is the Governor of Kentucky. He is responsible for scheduling Plaintiffs execution and has the authority to call off an execution if a suitable vein in Plaintiff s body cannot be accessed within 60 minutes of attempting peripheral venous access. 24. Defendants Unknown Executioners are employed by or under contract with the Kentucky Department of Corrections, to make preparations for, and carry out, Plaintiffs execution. They include, but are not limited to, physicians, emergency medical technicians, phlebotomists, physician's assistants, the execution team, the executioner, the LV. team, and the team leader. Plaintiff does not yet know their identities and Defendants will not reveal the identities of these persons.
5

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 6 of 59
IV. JURISDICTION AND VENUE 25. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights violation), 1651 (all-writs), 2201 (declaratory relief), and 2202 (further relief). 26. This action arises under the Eighth and Fourteenth Amendments of the United States Constitution, and 42 U.S.C. § 1983. 27. Venue is proper under 28 U.S.C. § 1391. All Defendants reside in the same state. The principal place of business for Defendant Rees, Defendant Fletcher, and Defendant Haas is Frankfort, Kentucky. 28. All Defendants are state actors acting under color of state law.
V. FACTS 29. Defendants are responsible for carrying out executions in Kentucky. 30. Under the Eighth Amendment to the United States Constitution, cruel and unusual punishment claims involving a particular means of effectuating a sentence of death are analyzed under a six prong test in which proof of anyone prong establishes an Eighth Amendment violation:
a) the physical pain inflicted is excessive in light of readily available alternatives;
b) the risk of pain is more than the Constitution tolerates; c) the risk of pain and suffering is unnecessary in light of available alternatives; d) mutilation of the body during the execution; e) unnecessary psychological suffering; f) the particular means of effectuating the sentence of death violates evolving standards of decency.
6

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 7 of 59
31. Defendant Rees worked with the Oklahoma Department of Corrections from July 1976 until December 1980.
32. The first state to adopt lethal injection was Oklahoma in 1977. 33. Defendant Rees was involved in creating the policies and procedures for carrying out lethal injections in Oklahoma. 34. In 1978, Oklahoma drafted the first lethal injection protocol in the country. 35. Defendant Rees was involved in drafting Oklahoma's 1978 lethal injection protocol. 36. Prior to adopting the 1978 protocol, Oklahoma neither conducted nor consulted any medical or scientific studies in deciding what chemicals to use or the quantities of the chemicals to administer. 37. Oklahoma's original execution protocol called for the administration of a short acting barbiturate in conjunction with a paralytic agent. Potassium chloride was mentioned as a possible paralytic agent. 38. Potassium chloride is not a paralytic agent. 39. The first lethal injection execution in the United States was carried out in Texas in 1982 by the administration of sodium thiopental, pancuronium bromide, and potassium chloride. 40. Prior to the first lethal injection in 1982, no state conducted or consulted any medical or scientific studies in determining which chemicals to use for lethal injections or in what quantity to administer them. 41. No state has conducted or consulted any medical or scientific studies on sodium thiopental, pancuronium bromide, or potassium chloride during lethal injections, or into the quantity of each drug to administer.
7

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 8 of 59
42. Defendants intend to execute Plaintiff by administering the following drugs in the following manner:
a) sodium thiopental (also known as sodium pentothal) (3 grams); b) pancuronium bromide (also referred to as pavulon) (50 milligrams); and, c) potassium chloride (240 milliequivalents) The drugs are injected in succession, one after the other. Saline solution is injected in between each drug. 43. Defendants use these three chemicals because these chemicals were used by other states at the time Kentucky created its first lethal injection protocol. 44. Defendants neither conducted nor relied upon any medical or scientific studies in determining to use these chemicals. 45. Defendants neither conducted nor relied upon any medical or scientific studies in determining the quantity of chemicals to administer. 46. In deciding which chemicals to use in Kentucky lethal injections, Defendants did not consult with any anesthesiologists, doctors, or other medically trained personnel. 47. During lethal injection litigation on behalf of Ralph Baze and Thomas Bowling, Defendants changed their protocol to increase the dose of sodium thiopental from 2 grams to 3 grams. This change was made in late 2004. 48. The decision to increase the amount of sodium thiopental was made by Defendant Rees. 49. Defendant Rees has no medical training. 50. Prior to increasing the amount of thiopental from 2 grams to 3 grams, Defendant Rees did not consult any medical professionals about increasing the dose of thiopental.
8

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 9 of 59
51. Defendant Rees conducted no medical or scientific studies on the effects of the lethal injection chemicals before increasing the amount of thiopental from 2 grams to 3 grams.
52. Defendant Rees did not consult any anesthesiologists or medically trained person about increasing the amount of thiopental before increasing the dose from 2 grams to 3 grams.
53. Prior to April 18, 2005, Defendant Rees thought the directions on the lethal injection chemical bottles would say how much of the chemical to administer.
54. The package inserts and labels on the lethal injection chemicals do not say how much of the chemicals to administer during a lethal injection.
55. Other than the fact that sodium thiopental, pancuronium bromide, and potassium chloride are used in other states, prior to April 18, 2005, Defendant Rees had no idea why these three chemicals are used in Kentucky lethal injections.
56. Defendant Rees currently has no knowledge why these three chemicals are used in Kentucky lethal injections.
57. Prior to April 18, 2005, Defendant Rees did not know why Kentucky lethal injections used three chemicals instead of one or two.
58. Defendant Rees still does not know why Kentucky lethal injections used three chemicals instead of one or two.
59. Until April 18, 2005, Defendants thought that all states that carry out lethal injection administer sodium thiopental, pancuronium bromide, and potassium chloride.
60. New Jersey's lethal injection protocol does not use pancuronium bromide. Instead, they administer only sodium thiopental and potassium chloride.
61. Prior to April 18,2005, Defendants were unaware that New Jersey uses only two chemicals: sodium thiopental and potassium chloride to carry out lethal injections.
9

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 10 of 59
62. Defendants have not consulted with the New Jersey Department of Corrections about why they do not use pancuronium bromide or any other neuromuscular blocking agent in lethal injections.
63. Defendants have not considered adopting New Jersey's chemical combination (sodium thiopental and potassium chloride).
64. Defendants have not consulted any anesthesiologists about the viability of administering only sodium thiopental and potassium chloride.
65. Defendants have not consulted any medical professionals about the viability of administering only sodium thiopental and potassium chloride.
66. Assisted suicide is legal in Oregon. According to the Death with Dignity reports required by Oregon law, more than 170 terminally ill people have been prescribed medication to end their lives in Oregon.
67. In almost all of these cases, the terminally ill person was prescribed a large dose of pentobarbital, a long-acting barbiturate, as the only chemical to cause death.
68. Defendants have not consulted any medical personnel about replacing sodium thiopental with pentobarbital.
69. Defendants have not considered replacing sodium thiopental with pentobarbital. 70. Defendants have not consulted any medical personnel about administering pentobarbital as the sole chemical to cause death. 71. Defendants have not considered administering pentobarbital as the sole lethal injection chemical. 72. The usage of sodium thiopental is not mandated by Kentucky law. 73. The usage of pancurium bromide is not mandated by Kentucky law.
10

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 11 of 59
74. The usage of potassium chloride is not mandated by Kentucky law. 75. Finding that anyone, a combination of, or all these chemicals violates the Eighth Amendment to the United States Constitution will not require statutory amendment or variance. 76. To carry out Plaintiffs execution, Defendants intend to insert two LV.'s into Plaintiff. 77. The three chemicals will be injected from only one LV. line. 78. The LV. insertion team will spend up to 60 minutes attempting to insert an LV. into Plaintiffs' body. 79. If the LV. insertion team is unable to insert the LV.'s after 60 minutes, Defendant Rees and Defendant Simpson will ask Defendant Fletcher to call off the execution and reschedule it. 80. The chemicals are injected from outside the execution chamber by pushing them through a tube that flows approximately five feet to the catheter that is inserted into the condemned inmate's vein. 81. The chemicals are injected by a member of the execution team referred to as the executioner. 82. The executioner (the person who actually injects the chemicals) has no medical training. A. Facts related to the unconstitutionality of the tri-chemical cocktail used in
Kentucky lethal injections. 83. Sodium thiopental (pentothal) is an ultra-short acting barbiturate. 84. Sodium thiopental begins to wear off almost immediately. 85. Pancuronium bromide is a curare-derived agent that paralyzes all skeletal and voluntary muscles.
1 1

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 12 of 59
86. Pancuronium bromide has no impact whatsoever on awareness, cognition, or sensation.
87. Potassium chloride is an extraordinarily painful chemical which activates the nerve fibers lining a person's veins and interferes with the rhythmic contractions of the heart, causing cardiac arrest.
88. This particular combination and sequence of chemicals create an unnecessary risk that Plaintiff will suffer an excruciatingly painful and protracted death in violation of the Eighth Amendment to the United States Constitution.
89. Prior to injecting sodium thiopental, Defendants offer the condemned inmate Valium.
90. If Plaintiff refuses to take Valium prior to his execution, Defendants will force him to do so if Defendants determine that Valium should be administered.
91. Defendants have no guidelines for determining under what circumstance a forced administration of Valium should take place.
92. Valium can interfere with sodium thiopental's effectiveness. 93. Sodium thiopental is a powder that must be mixed into a liquid before injecting it. 94. According to the package insert for sodium thiopental, it should be administered only "by individuals experienced in the conduct of intravenous anesthesia." 95. Defendants are not experienced in the process of intravenous anesthesia. 96. The executioner, the person administering thiopental, is not experienced in the conduct of intravenous anesthesia. 97. According to the package insert for sodium thiopental, "individual response to the drug is so varied that there can be no fixed dosage."
12

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 13 of 59
9S. Defendants inject the same dose ofthiopental to all condemned inmates. 99. The concentration of thiopental injected determines the potency of sodium thiopental, i.e., if the sodium thiopental is too diluted, it will be less potent, and not ensure that the condemned inmate does not feel pain at any point during his execution. 100. Defendants are not adequately trained in mixing the lethal injection chemicals to ensure that the concentration of thiopental injected into the condemned inmate prevents the inmate from feeling pain. 101. Sodium thiopental is an ultra short-acting barbiturate which is ordinarily used only in the induction phase of anesthesia to render a surgical patient unconscious for mere minutes, specifically so that the patient may re-awaken and breathe on their own power if any complications arise in inserting a breathing tube pre-surgery. 102. Defendants administer sodium thiopental to prevent the condemned inmate from feeling pain. 103. Sodium thiopental is the only chemical administered by Defendants to prevent the condemned inmate from feeling pain. 104. Sodium thiopental does not relieve pain. 105. Analgesics (which include opiates) are the class of chemicals that relieve pain. 106. Sodium thiopental is not an analgesic. 107. Defendants do not administer an analgesic while carrying out lethal injections. lOS. Sodium thiopental is almost never used as the only anesthetic during a surgical proceeding. 109. During surgical procedures, a barbiturate is administered to render a person unconscious and an analgesic is administered to ensure that the patient does not feel pain.
13

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 14 of 59
110. Both a barbiturate and an analgesic are continuously administered during surgical procedures.
111. Sodium thiopental was a state of the art barbiturate in 1977 when lethal injection first became a method of execution in the United States.
112. Sodium thiopental has been supplanted in the medical field by propafol. 113. As of April 20, 2005, Defendants are aware that sodium thiopental has been supplanted in the medical field by propafol. 114. Propafol is a safer and longer acting barbiturate than sodium thiopental. 115. Defendants have not consulted any medical professionals about the viability of using propafol instead of sodium thiopental. 116. Defendants have not taken any steps to look into the viability of using propafol instead of sodium thiopental. 117. Defendants have not taken any steps to look into the viability of replacing sodium thiopental with pentobarbital. 118. Because of its brief duration (usually about five to seven minutes), there is a reasonable probability that sodium thiopental will fail to provide a sedative effect throughout the entire execution process. 119. Three grams of sodium thiopental or even a larger dose is insufficient to induce unconSCIOusness if sufficient sodium thiopental does not reach the condemned prisoner's bloodstream. 120. The concentration of sodium thiopental not the dose of thiopental injected into the condemned inmate determines whether the condemned inmate will feel pain.
14

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 15 of 59
121. Defendants fail to monitor the concentration of sodium thiopental and fail to monitor to ensure that the full quantity of sodium thiopental reaches the inmate's bloodstream.
122. Defendants fail to determine if the inmate is unconscious to the point of being unable to feel pain prior to administering pancuronium bromide and potassium chloride.
123. Defendants' only form of monitoring for unconsciousness prior to injecting the second and third chemical is physical observation of the inmate.
124. Prior to the administration of pancuronium bromide, checking corneal reflexes or pinching a person to see if a person responds are methods that could indicate whether a person can feel painful stimuli.
125. After the injection of pancuronium bromide, machines such as an EEG monitor can be used to monitor for the ability to feel painful stimuli.
126. If a person is able to feel pain, pancuronium bromide and potassium chloride would be extremely painful.
127. Because Defendants choose to use potassium chloride, instead of less painful alternatives, it is essential to ensure that a person cannot feel pain.
128. There are multiple levels of unconsciousness. 129. General anesthesia, also known as surgical anesthesia, is the level of anesthesia a person must be in to not feel pain during a lethal injection. 130. A person who appears unconscious to the lay observer may not be in a state of general anesthesia. 131. A person who appears unconscious can feel pain or wake up from painful stimuli if they are not in a state of general anesthesia.
15

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 16 of 59
132. A person who is unable to respond to verbal stimuli might be conscious enough to wake and feel painful stimuli, such as the pain caused by pancuronium bromide and potassium chloride.
133. When sodium thiopental is the sole anesthetic, at least 39-42 mg/L of thiopental in the bloodstream is necessary to ensure that a person will not wake up from painful stimuli. See Baselt, Disposition of Toxic Drugs and Chemicals in Man.
134. The 39-42 mg/L is the amount of thiopental necessary in the blood stream to prevent a person from waking from painful stimuli (in other words, the amount of thiopental necessary to achieve surgical anesthesia), not the amount of thiopental necessary to prevent a person from responding to a verbal command.
135. North Carolina injects sodium thiopental during executions. 136. Numerous toxicology reports on executed death row inmates in North Carolina, including toxicology results from four executions conducted between November 2005 and the end of January 2006, indicate thiopental levels below 39-42 mg/L. 137. Because the level of thiopental in bodies of inmates executed in North Carolina was below 39-42 mg/L, these inmates were likely able to feel pain during their executions. 138. Because North Carolina injects pancuronium bromide, the condemned inmate could not communicate that they were conscious and feeling pain, and evidence of consciousness could not be apparent to the observers ofthe execution. 139. South Carolina administers two grams of sodium thiopental. 140. Toxicology reports on death row inmates in Arizona and South Carolina indicate that numerous death-sentenced inmates in Arizona and South Carolina had less than 39-42 mg/L of thiopental in their bloodstream when executed.
16

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 17 of 59
141. Because the level of thiopental in body of inmates executed in Arizona and South Carolina was below 39-42 mg/L, these inmates were likely able to feel pain during their execution.
142. Because both Arizona and South Carolina inject pancuronium bromide, none of the condemned inmates could communicate that they were conscious and feeling pain, and evidence of consciousness could not be apparent to the observers of the execution.
143. Edward Harper is the only person judicially executed by lethal injection III Kentucky.
144. Toxicology reports show that the level of thiopental in Edward Harper's blood at the time of his execution by Defendants was between 3 and 6.5 mg/L.
145. The concentration of thiopental in Harper's bloodstream was insufficient to ensure that he could not feel painful stimuli during his execution.
146. Edward Harper likely was conscious enough to feel pain when pancuronium bromide was administered.
147. Edward Harper likely was conscious enough to feel pain when potassium chloride was administered.
148. Because Defendants injected Harper with pancuronium bromide, Harper could not communicate that he was conscious and feeling pain, and evidence of consciousness was not apparent to the observers of the execution.
149. Dr. Dershwitz, who has testified on behalf of multiple correctional departments in lethal injection challenges in many states asserts that neither Harper nor any other inmate were likely conscious, defined by him as the ability to respond to verbal stimuli, during their execution.
17

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 18 of 59
150. Dr. Dershwitz has conducted no studies on sodium thiopental. 151. Dr. Dershwitz bases his opinions on how chemicals, other than sodium thiopental, react with the human body. 152. Dr. Dershwitz bases his opinion on his knowledge of the use of sodium thiopental in conjunction with other chemicals to render an inmate unconscious. 153. Dr. Dershwitz's opinion is also based on the amount of thiopental necessary to ensure a lack of response to verbal stimuli. 154. Dr. Dershwitz rarely relies on thiopental as the sole anesthetic during surgical procedures. 155. Dr. Dershwitz has not reviewed literature on injecting thiopental as the sole anesthetic and, until he testified in Baze v. Rees, he was unfamiliar with Baselt's standard text for determining the amount of thiopental necessary to ensure that a person will not respond to painful stimuli. 156. A larger concentration of sodium thiopental is necessary to obtain and maintain unconsciousness when thiopental is used as the only chemical for this purpose. 157. An individual who is unable to respond to verbal stimuli can feel pain. 158. A larger concentration of sodium thiopental is necessary to ensure that a person who cannot respond to verbal stimuli also cannot feel pain. 159. Even according to Dershwitz, with 7 mglL of sodium thiopental in the bloodstream, 50% of the population will be able to respond to verbal commands. 160. Based on Dershwitz's calculations, the amount of thiopental in the blood necessary to prevent a person from feeling pain must be higher than 7 mglL.
18

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161. Toxicology results from numerous individuals executed in Arizona, North Carolina, South Carolina, and the lone lethal injection in Kentucky indicate that the thiopental levels in the bloodstream were lower than 7 mg/L.
162. Dershwitz has calculated the amount of thiopental he expects to find in the blood five minutes after an injection of 3grams of thiopental. Dershwitz's predictions on this change depending on what state has hired him as an expert.
163. In litigation in Maryland on behalf of Steven Oken, Dr. Dershwitz testified (by affidavit) that 30.15 mg/L of thiopental should be in Oken's blood five minutes after injection.
164. 30.15 mg/L is below the 39-42 mg/L threshold level necessary to prevent a person from feeling painful stimuli, according to Baselt.
165. Toxicology results from Oken's execution show that 10 mglL of thiopental, not 30.15 mg/L, was found in Oken's bloodstream.
166. In the four most recent executions in North Carolina, blood to test for the amount of thiopental was drawn shortly after death and at the time of the autopsy.
167. Steven Van McHone's toxicology results showed thiopental levels of 1.5 mgIL and 21 mg/L.
168. The thiopental levels in McHone were lower than predicted by Dershwitz. 169. The thiopental levels in McHone were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli. 170. The thiopental levels in McHone were lower than the 39-42 mglL of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt. 171. Elias Syriani's toxicology results showed thiopental levels of 4.4 mgIL, II mglL, and 12 mg/L.
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172. The thiopental levels in Syriani were lower than predicted by Dershwitz. 173. The thiopental levels in Syriani were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli. 174. The thiopental levels in Syriani were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt. 175. Kenneth Boyd's toxicology results showed thiopental levels of 11 mg/L, and 29 mg/L. 176. The thiopental levels in Boyd were lower than predicted by Dershwitz. 177. The thiopental levels in Boyd were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli. 178. The thiopental levels in Boyd were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt. 179. Perrie Simpson's toxicology results showed thiopental levels of 8.7 mg/L, 12 mg/L, 42 mg/L. 180. Two of the thiopental levels in Simpson were lower than predicted by Dershwitz. 181. Two of the thiopental levels in Simpson were lower than the amount Dershwitz says is necessary to prevent 50% of the population from responding to verbal stimuli. 182. Two of the thiopental levels in Simpson were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Dershwitz. 183. According to Dershwitz, 5 grams of thiopental should render a person unconscious in about one minute. 184. Recently, Delaware executed Brian Steckel. It took many minutes for the chemicals to take effect.
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185. After the sodium thiopental was injected, Steckel was able to speak and asked why it was taking so long for the chemicals to take effect.
186. Steckel was not rendered unconscious within a minute of the injection of thiopental.
187. The length of time it took for Steckel to be rendere~ unconscious shows that the concentration or amount of thiopental (or both) that reached his bloodstream was insufficient to prevent him from reacting to painful stimuli.
188. Witnesses to Steckel's execution observed Steckel's convulsions during his execution.
189. Convulsions are caused by potassium chloride. 190. Pancuronium bromide prevents witnesses from seemg convulsions caused by potassium chloride. 191. Because Steckel convulsed during his execution, the pancuronium bromide did not paralyze the body. 192. Because the sodium thiopental did not prevent Steckel from feeling pain, he was able to feel the excruciating agony of pancuronium bromide and pain of potassium chloride. 193. California administers 5 grams of sodium thiopental. 194. Recently disclosed information on the last 13 lethal injections in California establishes that many inmates are conscious, and thus feeling the pain of pancuronium bromide and potassium chloride during their executions. 195. Because sodium thiopental begins to wear off almost immediately and cessation of respiration does not mean death, within five minutes or less of the injection, the inmates will be able to feel painful stimuli.
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196. According to Dershwitz, a 5 gram dose of sodium thiopental will cause virtually all people to cease respiration and consciousness within a minute.
197. Evidence from six executions in California show that, even after a 5 gram dose of sodium thiopental, a condemned inmate's breathing does not stop within a minute, and in some situations has lasted for as long as twelve minutes.
198. Jaturun Siripongs was executed in California on February 9, 1999. The administration of sodium thiopental began at 12:04 a.m. and the administration of pancuronium bromide began at 12:08 a.m., yet respiration did not cease until 12:09 a.m., five minutes after the administration of sodium thiopental began and one minute after the administration of pancuronium bromide.
199. The amount of time that elapsed before respiration stopped establishes that Siripongs did not stop breathing within one minute of the injection of sodium thiopental.
200. The amount of time that elapsed before respiration stopped creates a high likelihood that the sodium thiopental was not working and that Siripongs was able to feel pain during his execution.
201. Manuel Babbitt was executed in California on May 4, 1999. The administration of sodium thiopental began at 12:28 a.m. and the administration of pancuronium bromide began at 12:31 a.m., yet respiration did not cease until 12:33 a.m., five minutes after the administration of sodium thiopental began and two minutes after the administration of pancuronium bromide began.
202. In addition, brief spasmodic movements were observed in Babbitt's upper chest at 12:32 a.m. Babbitt maintained a steady heart rate of95 or 96 beats per minute for seven minutes after he was injected with sodium thiopental.
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203. Babbitt's heart rate and the amount of time that elapsed before respiration ceased establishes that Babbitt did not stop breathing within one minute of the injection of sodium thiopental
204. Babbitt's heart rate and the amount of time that elapsed before death establishes that the sodium thiopental was not working and that Babbitt was likely able to feel pain during his execution.
205. Darrell Keith Rich was executed in California on March 15, 2000. The administration of sodium thiopental began at 12:06 a.m. and the administration of pancuronium bromide began at 12:08 a.m., yet respiration did not cease until 12:08 a.m., when pancuronium bromide was injected, two minutes after the administration of sodium thiopental began.
206. Chest movements were observed in Rich from 12:09 a.m. to 12:10 a.m. 207. The above information on Rich's execution establishes that Rich did not stop breathing within one minute of the injection of sodium thiopental 208. The above information on Rich's execution establishes that the sodium thiopental was not working and that Rich was able to feel painful stimuli during his execution. 209. Stephen Wayne Anderson was executed in California on January 29, 2002. The administration of thiopental began at 12:17 a.m. and the administration ofpancuronium bromide began at 12: 19 a.m., yet respiration did not cease until 12:22 a.m., five minutes after the administration of sodium thiopental began and three minutes after the administration of pancuronium bromide began. 210. The above information establishes that Anderson did not stop breathing within one minute of the injection of sodium thiopental.
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211. The above information establishes that the sodium thiopental was not working and that Anderson was likely able to feel painful stimuli during his execution.
212. Stanley Tookie Williams was executed on December 13, 2005. The administration of sodium thiopental began at 12:22 a.m., the administration of pancuronium bromide began at 12:28 a.m., and the administration of potassium chloride began at 12:32 a.m. or 12:34 a.m., yet respiration did not cease until either 12:28 a.m. or 12:34 a.m.
213. The above information establishes that Williams did not stop breathing within a minute of the injection of sodium thiopental.
214. The above information establishes that the sodium thiopental was not working and that Williams was likely able to feel painful stimuli during his execution.
215. Clarence Ray Allen was executed on January 17,2006. The administration of sodium thiopental began at 12:18 a.m., yet respiration did not cease until 12:27 a.m., when pancuronium bromide was injected.
216. The above information establishes that Allen did not stop breathing within one minute of the injection of sodium thiopental.
217. The above information establishes that the sodium thiopental was not working and that Allen was likely able to feel painful stimuli during his execution.
218. Defendants do not keep logs on whether and how long the condemned inmate is breathing.
219. Defendants have taken no precautions or corrective measures to ensure that three grams of sodium thiopental will reach an inmate's bloodstream in the correct concentration and render the inmate unconscious enough to not feel pain.
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220. Defendants do not use any medical equipment to monitor the condemned inmate's respiration, heart beat, pulse, or brain waves during the execution.
221. If thiopental is not injected directly into a vein, it will not render a person unconscious.
222. If the vein collapses, thiopental will leak into the surrounding tissue and fail to render the inmate unconscious.
223. If thiopental is injected into a location in the body that is not a vein, the thiopental in the inmate's body would be extremely painful.
224. During the execution of Joseph Clark in Ohio on May 2, 2006, Clark appeared to fall asleep, but about three or four minutes later, he raised his head and began speaking.
225. Clark's vein collapsed after the chemicals began to flow. 226. Because Clark's vein collapsed, the chemicals began to flow into other parts of his body, causing pain but not rendering him unconscious or causing his death. 227. It took one hour and twenty six minutes to carry out Clark's execution. 228. In surgical procedures, the quantity of anesthetic administered depends upon factors unique to the patient including size, weight, and past drug usage. 229. Administration of valium can lessen the efficacy of sodium thiopental. 230. In an individual who is resistant to sodium thiopental, a higher dose of sodium thiopental is necessary to induce unconsciousness to the point where the person will not feel pain. 231. An overweight person is likely to be more resistant to sodium thiopental. 232. Prolonged usage of barbiturates builds up a resistance to sodium thiopental. 233. Edward Harper presented none of the above mentioned risk factors.
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234. An insufficient amount or concentration of sodium thiopental reached Edward Harper's bloodstream.
235. Due to the chemical combination and sequence used in the Kentucky execution process, there is a probability that the sedative effect of the sodium thiopental will be neutralized instantly by the second chemical, pancruonium bromide.
236. When sodium thiopental is exposed to pancuronium bromide, sodium thiopental precipitates, i.e., returns to the solid condition.
237. Once sodium thiopental returns to its solid condition, it no longer performs its anesthetic function.
238. If Plaintiff is not adequately sedated to the point where he cannot feel painful stimuli, he will suffer the conscious experience of being paralyzed while suffocating and an intense fiery burning sensation in every nerve in his body, if Defendants execute him with the three chemicals Kentucky plans to use for his execution.
239. The second chemical involved in the lethal injection process, pancuronium bromide, is a derivative of curare that acts as a neuromuscular blocking agent.
240. Pancuronium bromide is a long acting neuromuscular blocking agent. 241. While pancuronium bromide paralyzes skeletal and voluntary muscles, including the diaphragm, it has no effect on consciousness or the ability to feel pain. 242. Pancuronium bromide will serve only to mask the excruciating pain and convulsions suffered by Plaintiff. 243. Pancuronium bromide prevents a conscious individual from notifying anyone that he or she is conscious or in pain.
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244. Pancuronium bromide prevents a conscious individual from showing any signs of consciousness or pain.
245. Defendants do not monitor for consciousness or pain after the injection of sodium thiopental or pancuronium bromide.
246. Many means of monitoring for consciousness after injecting pancuromum bromide exist, including blood pressure cuffs, EEG monitoring, using an EKG machine (if located in the execution chamber and read throughout the execution, not just at the end to determine death).
247. None of the above means of monitoring for consciousness after i~ecting sodium thiopental or pancuronium bromide are used by Defendants.
248. A condemned inmate who appears unconscious could feel pain because I) less than the expected dose of the anesthetizing drug, sodium thiopental, has been successfully injected into the individual's bloodstream, or has failed to remain in the person's bloodstream; 2) sensitivity to sodium thiopental varies greatly among the population and some individuals; 3) the duration of the effectiveness of sodium thiopental has worn off; OR, 4) the concentration of sodium thiopental was insufficient to render the inmate unconscious to the point where the inmate cannot feel pain.
249. If a condemned inmate regains consciousness or the ability to feel pain during an execution, the inmate will suffer the agony of suffocation and paralysis due to pancuronium bromide and the excruciating pain of potassium chloride.
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250. The pain suffered by a conscious inmate would be less if Defendants replaced potassium chloride with some other chemical to stop the heart.
251. Pancuronium bromide collapses the lungs and, in a conscious person, causes the extreme agony of paralysis and suffocation.
252. Death by suffocation is akin to drowning. 253. Death by suffocation is akin to dying in a gas chamber. 254. Pancuronium bromide can cause individuals to have a gastric reaction that causes vomit to fill an inmate's mouth. 255. The vomit caused by the usage of pancuronium bromide can flow into a person's lungs causing suffocation. 256. Because pancuronium bromide paralyzes the diaphragm, a person is unable· to regurgitate the vomit. 257. If a person is conscious when the vomit flows into the mouth, a person paralyzed by pancuronium bromide is likely to suffer extreme pain and suffering as the person silently chokes to death on vomit. 258. The American Veterinary Medicine Association (AVMA) condemns the use of neuromuscular blocking agents such as pancuronium bromide in the euthanasia of animals when a sedative (anesthetic or barbiturate) is administered. 259. At least 31 states have made the use of pancuronium bromide on domestic animals illegal. Kentucky is one of a majority of States that have banned its use. K.R.S. section 321.181 (17) and 201 K.A.R. 16:090.
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260. Since legislatures began prohibiting using neuromuscular blocking agents with sedatives, no legislature or other governing body has expressly condoned this practice or repealed statutes forbidding it.
261. The first lethal injection procedure designed in the United States called for a paralytic agent to cause death.
262. Using pancuronium bromide or any chemical to stop respiration is not necessary to cause death.
263. Potassium chloride, the third chemical involved in Kentucky's lethal injection process, stops the prisoner's heart, and, thereby cause cardiac arrest and death.
264. With the use of potassium chloride, pancuronium bromide is not necessary to cause death.
265. Pancuronium bromide serves no legitimate purpose in a lethal injection execution, particularly considering the readily available alternative of conducting the lethal injection execution without pancuronium bromide.
266. Pancuronium bromide is administered to make the lethal injection process more aesthetically palatable for the official witnesses by preventing the witnesses from seeing any involuntary twitching, convulsions, or seizures that may be caused by the potassium chloride or the dying process itself.
267. The involuntary muscle reactions caused by potassium chloride can be avoided by using many other non painful ways of stopping the heart that will not cause involuntary muscles reactions.
268. Eliminating pancuronium bromide from the lethal injection process will not increase the amount of pain that a condemned inmate suffers during the dying process.
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269. Preventing official witnesses from seeing the effects of each chemical during the lethal injection process is not a legitimate reason to administer a drug, particularly when the drug increases the risk of inflicting horrific pain and suffering upon the condemned person.
270. Preventing witnesses from seeing the effects of the killing agent prevents public perception and awareness regarding that agent, and thus violates the Eighth Amendment to the United States Constitution because it prevents the public from moving towards an informed consensus either for or against the use ofthe killing chemical.
271. A chancery court in Tennessee has found the usage of pancuronium bromide during lethal injections to be arbitrary and unnecessary.
272. The use ofpancuronium bromide during an execution violates evolving standards of decency.
273. The use ofpancuronium bromide during an execution creates an unacceptable risk that Plaintiff will suffer an unnecessarily painful death.
274. Potassium chloride, the third chemical used in Kentucky's lethal injection process, is a strong alkaline chemical.
275. Potassium chloride is commonly used as road salt. 276. In Kentucky lethal injections, potassium chloride is used to stop the heart from beating, and thus to cause death. 277. The EKG printout from the one lethal injection execution in Kentucky (that of Edward Harper) shows that Harper was alive when potassium chloride was administered and that potassium chloride caused his death.
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278. During the execution of Clarence Ray Allen in California on January 17,2006, a second administration of potassium chloride had to be administered because the first one did not kill him.
279. The dose of potassium chloride administered to Allen should have caused his death in less than a couple of minutes, as soon as the potassium chloride cycled through Allen's body.
280. The fact that a second dose of potassium chloride had to be administered to Allen establishes that the full dose of potassium chloride did not reach Allen's heart.
281. When potassium chloride reaches the heart in large doses, such as that used in Kentucky lethal injections, it causes a massive heart attack.
282. The administration of potassium chloride is extremely painful when administered intravenously.
283. Potassium chloride ravages the organs by causing an extremely painful burning sensation in every nerve as it courses through the body.
284. Pancuronium bromide prevents an inmate from expressing the pain caused by potassium chloride.
285. Potassium chloride can be replaced by many non-painful chemicals that would stop the heart in a short period of time without causing any convulsions.
286. Dilantin is a non-painful chemicals that would stop the heart in a short period of time without causing any convulsions.
287. Veterinarians do not use potassium chloride in euthanizing animals. 288. Veterinarians euthanize animals by injecting a lethal dose of pentobarbital. 289. Pentobarbital is a long acting barbiturate.
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290. Pentobarbital is a potential alternative to the tri-chemical cocktail used III Kentucky lethal injections.
291. Defendants have shown a deliberate indifference to the risk of inflicting unnecessary pain and suffering and towards serious medical needs, by copying lethal injection procedures from other states without investing meaningful and independent efforts to ensure that Kentucky's lethal injection execution procedures comply with contemporary medical standards and long-standing constitutional standards.
292. Upon information and belief, Defendants have conducted no scientific or medical studies concerning the chemicals and procedures they use for lethal injection since they were made aware of potential problems with the process in August 2004.
293. Defendants' failure to conduct medical or scientific tests on the chemicals since August 2004 and their failure to adopt alternative chemicals and procedures in light of the information presented to them since August 2004 shows their deliberate indifference towards known medical needs.
294. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because Warden Simpson, who is in charge of the prison where executions take place, has never been involved in an execution by lethal injection.
295. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because Warden Simpson, who is in charge of the prison where executions take place, has never witnessed an execution by lethal injection.
296. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because execution team members regularly have had difficulty inserting the IV needle into test subjects during mock lethal injections.
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297. The risk of unnecessary pain and suffering is grave because when the Kentucky Department of Corrections carried out its first and only lethal injection, unanticipated problems occurred and the Department of Corrections proceeded without correcting these problems.
298. According to witnesses at the execution of Edward Harper on May 25,1999, it took ten minutes and at least three stabs with a needle to find a suitable vein to inject the chemicals.
299. According to witnesses at the execution of Edward Harper on May 25,1999, within two minutes of the administration of sodium thiopental, Harper's face turned purple and became puffy.
300. Defendants did not determine if a purple and puffy face was normal during an execution by lethal injection, but continued with the execution.
301. Defendants have taken no steps subsequently to determine whether a purple and puffy face is normal during a lethal injection.
302. The risk of unnecessary pain and suffering is grave in Kentucky because the individuals responsible for mixing the chemicals, inserting the LV.s, and injecting the chemicals are not adequately trained.
303. The risk of unnecessary pain and suffering and malfunctions in the lethal injection process is grave in Kentucky because Defendants inject the chemicals from outside the execution chamber by sending the chemicals through a tube that carries the chemicals to the vein rather than injecting the chemicals directly into the vein.
304. The lethal injection chemicals travel through a tube in the wall for five feet before entering the condemned inmate.
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305. Defendants could inject the chemicals directly into the vein if the executioner was inside the execution chamber and inserted the chemicals directly into the catheter.
306. Plunging the chemicals through a tube connected to a catheter rather than injecting the chemicals directly into the vein increases the risk that the condemned inmate will suffer unnecessary pain during his execution.
307. How fast the lethal injection chemicals are pushed through the plunger into the tube impacts whether the chemical will get into a person's vein.
308. How fast the lethal injection chemicals are pushed through the plunger into the tube impacts how long it will take for a chemical to take effect and how quickly that effect will wear off.
309. The executioner is not trained in how fast to push the plunger. 310. The executioner is not instructed on how fast to push the plunger. 311. The package inserts and labels on the lethal injection chemicals do not say how fast to push the plunger. 312. There is a high risk that the executioner may push the lethal injection chemicals into Plaintiff too quickly or too slowly. 313. If the lethal injection chemicals are pushed into Plaintiff too quickly or too slowly, Plaintiff will suffer unnecessary pain. 314. Defendants use one size catheter to inject the lethal injection chemicals. 315. The size of the catheter used during lethal injections is different than the size standardly used in medical settings for drawing blood or inserting an I.V. 316. If too small a catheter is used during Plaintiffs execution, the chemicals will not reach Plaintiffs' bloodstream as quickly as they should.
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317. Using too small a catheter creates an unnecessary risk that the injection of sodium thiopental will not prevent the inmate from feeling pain throughout the execution.
B. Facts relevant to inserting an LV. 318. Defendants plan to insert two I.V.lines into Plaintiff. 319. Different size catheters are used in medical proceedings depending on the height and weight of the patient and the size ofthe patient's veins. 320. If the catheter is too large, the vein could blowout. 321. A blown vein means that the chemicals would be going into a part of the body other than the vein or not entering the body at all if it causes the I.V. to dislodge. 322. Injecting the lethal injection chemicals into a part of the body other than the vein would be extremely painful. 323. Injecting the lethal injection chemicals into a part of the body other than the vein would prevent the chemicals from having the desired effect. 324. Injecting sodium thiopental into a part of the body other than the vein means that the thiopental would not render a person unconscious. 325. Defendants use only one size catheter during lethal injections. 326. Defendants do not take into consideration the condemned inmate's weight, height, or the size of the inmate's veins in determining what size catheter to use during the inmate's execution. 327. The size of the catheter used by Defendants during lethal injections is different from the size most commonly used when drawing blood or inserting an l.V. in a medical setting. 328. The size of the catheter used in lethal injections increases the likelihood that Defendants will not be able to insert an l.V. into Plaintiffs veins.
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329. Training and experience III drawing blood IS different from training and experience in inserting a catheter.
330. The LV. team has no experience in inserting a catheter. 331. The LV. team has no training in inserting a catheter. 332. Defendants will spend up to 60 minutes attempting to insert the two LV. lines. 333. The decision to spend up to 60 minutes inserting an LV. is a change to Defendants' execution procedures that occurred during the lethal injection litigation on behalf of Ralph Baze and Thomas Bowling. 334. Defendant Rees made the decision to require the execution team to attempt to insert the LV. for 60 minutes. 335. Defendant Rees did not consult any medical professionals concerning attempting to insert an LV. for 60 minutes prior to requiring the execution team to spend 60 minutes attempting to insert an I.V. 336. A "cut down" procedure is a surgical procedure used to obtain access to a vein when an intravenous port cannot be established. 337. A "cut down" procedure involves the use of a scalpel to make a series of incisions through the skin, the subcutaneous fat, and the underlying muscle, to reach a relatively deeply located central vein. The length of these incisions is in the range of two inches. 338. A "cut down" procedure can result in massive bleeding. 339. A "cut down" procedure can result in serious cardiac arrhythmias (abnormal beating of the heart causing shock). 340. A "cut down" procedure can cause pneumothora (lung collapse due to collection of air between the lung and chest wall).
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341. The amount of pain suffered during a "cut down" procedure depends on the experience and skill of the person performing the procedure.
342. A "cut down" procedure can cause death. 343. A "cut down" procedure is not the preferred medical procedure for obtaining venous access. 344. In the medical profession, a "cut down" procedure IS only utilized when a "percutaneous" procedure is not possible. 345. A "percutaneous" procedure (which involves using a needle and guidewire rather than a scalpel) is less invasive, less painful, easier to administer, and cheaper than a "cut down" procedure. 346. A "cut down" procedure is not mandated by K.R. S. section 431.220. 347. In Kentucky, doctors and nurses are not involved in obtaining venous access. 348. In Kentucky, doctors and nurses are not permitted to intervene if complications arise from attempting to obtain venous access. 349. Defendants have stated that they are not adequately trained to perform a cutdown procedure. 350. The use of a "cut down" procedure despite alternative methods of obtaining venous access that pose less risk of causing death or extreme pain and suffering violates the Eighth Amendment to the United States Constitution. 351. Defendants have stated that they will not use a cut-down procedure or a percutaneous procedure to execute Thomas Clyde Bowling or Ralph Baze. 352. Defendants have not ruled out using a cut-down procedure or percutaneous procedure to insert an I.V. during Plaintiff's execution.
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353. The circuit court Order in Baze v. Rees, which was not appealed by Defendants, prohibits Defendants from inserting an LV. in the neck because doing so violates the Eighth Amendment cruel and unusual punishment clause.
354. Defendants may attempt to insert an LV. into the groin. 355. Inserting an LV in the groin creates an unnecessary risk of pain and suffering. 356. Inserting an LV. in the groin mutilates the body. 357. Inserting an LV. in the groin violates the dignity of man. 358. Defendants have stated that if they are unable to insert an LV. after 60 minutes, they will ask Defendant Fletcher to call off the execution. 359. Defendants have not declared what they will do if Defendant Fletcher refuses to call off the execution. 360. If Defendant Fletcher refuses to call off the execution, Defendants may use a cut down procedure to insert an LV. into Plaintiff during his execution. 361. If Defendant Fletcher calls off the execution, Defendants will practice and attempt the same process of inserting a needle into Plaintiff. 362. This cycle of calling off Plaintiffs execution, practicing inserting LV.'s, rescheduling Plaintiffs execution, and performing the same method of inserting an LV. will continue repeatedly with no likelihood that Defendants will be able to insert an LV. into Plaintiff. 363. The likelihood that a problem will arise inserting an LV. needle is great because Defendants had difficulty inserting an LV. needle in the only lethal injection execution they carried out, and because Plaintiff has bad veins. 364. In executing Edward Harper on May 25, 1999, it took Defendants ten minutes to access his veins.
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365. The difficulty accessing Edward Harper's vein during his execution in 1999 was an unanticipated problem.
366. Similarly, Ohio's difficulty accessing the veins of Joseph Clark on May 2, 2006 was an unanticipated problem.
367. It took the execution team more than twenty minutes to insert an LV. in Clark's vein.
368. When Clark's vem collapsed, it took the execution team approximately 40 additional minutes to reinsert an LV. into Clark's vein.
369. Throughout the attempts to insert an LV. and the injections of the chemicals, Clark was heard moaning and groaning in pain.
370. It is likely that Defendants will have difficulty inserting an LV. into Plaintiff during his execution.
371. If veins or blood vessels blow during an execution, the chemicals will not have the desired effect.
372. If the chemicals do not remain in Plaintiffs vems, Plaintiff will suffer an excruciatingly painful death.
373. It should only take two to three minutes to insert an LV. 374. Well before 20 minutes of attempting to insert an LV. has elapsed, the inmate will experience a great deal of pain and discomfort. 375. After 20 minutes of attempting to insert an LV., the LV. team will have exhausted all available locations to insert a needle. 376. Attempting to insert a needle for 60 minutes mutilates the body in violation of the Eighth Amendment to the United States Constitution.
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377. Attempting to insert a needle for 60 minutes is excessive in violation of the Eighth Amendment to the United States Constitution.
378. Attempting to insert a needle for 60 minutes is unnecessarily painful in violation of the Eighth Amendment to the United States Constitution.
379. Subjecting Slaughter to the possibility of multiple attempts to execute him causes unnecessary psychological suffering, in violation of the Eighth Amendment to the United States Constitution.
C. Facts relevant to Defendants' inadequate equipment and personnel for maintaining life if a ~tay of execution is granted after the first or second chemical is administered. 380. Life can be maintained after 3 grams of sodium thiopental has been injected into a person. 381. Maintaining life after an injection of3 grams of sodium thiopental would not be difficult if medical personnel certified in cardiac life support are present at the execution chamber and provided with the proper equipment. 382. Life can be maintained after the administration of pancuronium bromide during lethal injections. 383. Maintaining life after an injection of pancuronium bromide would not be difficult if medical personnel certified in cardiac life support are present at the execution chamber and provided with the proper equipment. 384. There are chemicals that will stop the heart, but are easier to reverse than potassium chloride. 385. EMT's, phlebotomists, and doctors of general medicine are not trained in how to reverse the effects of sodium thiopental or pancuronium bromide.
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386. No member of Defendants' execution team is adequately trained in reversing the effects of sodium thiopental or pancuronium bromide.
387. No doctor or medical professional is present inside the execution chamber to reverse the effects of sodium thiopental or pancuronium bromide.
388. Having a medical professional trained in how to reverse the effects of sodium thiopental and pancuronium bromide physically located in the execution chamber is essential to reversing the effects of the chemical before death occurs.
389. If a stay of execution is granted after sodium thiopental or pancuronium bromide is administered, Defendants have an obligation to take measures to maintain the life of the condemned inmate.
390. General Counsel for the Kentucky Department of Corrections and counsel for Defendant Rees, and Defendant Simpson is Jeff Middendorf.
391. Jeff Middendorf is not a medical professional. 392. During lethal injection litigation on behalf of Ralph Baze and Thomas Bowling, Middendort created a one page document on the duration of onset of the chemicals, and how to reverse the effects ofthe lethal injection chemicals. 393. This one page document is based on Middendorfs own research. 394. Middendorfs document is what Defendants are relying on in determining how to reverse the effects of the lethal injection chemicals. 395. Middendorfs one page document is incorrect on how to reverse the effects of the lethal injection chemicals.
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396. Middendorfs one page document instructs Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemicals that could cause the inmate's death.
397. Middendorfs one page document instructs Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemicals that would not reverse the effects of the lethal injection chemicals.
398. Middendorfs one page document fails to instruct Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemical that are absolutely necessary to reverse the effects of the lethal injection chemicals.
399. Defendants have a "crash cart" available purportedly to maintain life if a stay of execution is granted after sodium thiopental or pancuronium bromide is administered.
400. Defendants' crash cart does not have all the chemicals listed on Middendorfs one page document.
401. Defendant Haas designates the person who will operate the crash cart. 402. For the previously scheduled execution of Thomas Clyde Bowling, Defendant Haas was the individual who would operate the crash cart. 403. Defendant Haas is the Medical Director for the Department of Corrections. 404. Defendant Haas has not worked in an emergency medical setting since medical school. 405. Defendant Haas is a practicing psychiatrist. 406. Defendant Haas has not treated patients in many years. 407. Defendant Haas is not adequately trained in maintaining life after sodium thiopental or pancuronium bromide has been injected into a person.
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408. No medical professional employed by the Kentucky Department of Corrections is adequately trained in maintaining life after sodium thiopental or pancuronium bromide has been injected into a person.
409. The crash cart Defendants have available at the Kentucky State Penitentiary is insufficient to maintain life after sodium thiopental or pancuronium bromide has been administered.
410 Medications to increase blood pressure and contract the heart are necessary to maintain life after 3 grams of sodium thiopental has been administered.
411 Epinephrine is necessary to maintain life once 3 grams of sodium thiopental has been administered.
412. Once pancuronium bromide is administered, artifical ventilation is necessary to maintain life.
413. Artificial ventilation is not part of the equipment included on Defendants' crash cart.
414. Insulin is also necessary to maintain life if a stay of execution is granted after the lethal injection chemicals have begun to flow through the condemned inmate's body.
415. Insulin is not one of the drugs in Defendants' crash cart. 416. Neostigmine is necessary to maintain life if a stay of execution is granted after the lethal injection chemicals have begun to flow through the condemned inmate's body. 417. Neostigmine is not one of the drugs in Defendants' crash cart. 418. Because Defendants' crash cart does not contain the equipment necessary to maintain life after sodium thiopental or pancuronium bromide have been injected, Defendants' crash cart does not meet the minimum constitutional requirements for maintaining life.
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419. It would not be difficult for Defendants to obtain the necessary equipment for maintaining life after the first or second chemical has been administered.
D. Facts Relevant to the Due Process and Fundamental Fairness Claim. 420. The Due Process clause prevents a person from being sentenced to death and executed upon information that he is barred from refuting. 421. The Due Process clause requires notice and the opportunity to be heard prior to depriving a person of life, liberty, or property. 422. In Kentucky, inmates sentenced to death prior to March 31, 1998 are permitted to choose electrocution. 423. In order to make a knowing and intelligent choice between lethal injection and electrocution, death sentenced inmates must have an opportunity to review the entire execution procedures for both methods. 424. Defendants refuse to disclose the execution procedures that will be utilized in carrying out Plaintiffs executions. 425. Due process and notions of fundamental fairness mandate that Defendants provide Plaintiffs with a copy of the execution procedures that will be used to extinguish their lives so that they can make an intelligent and knowing decision of a method of execution. 426. Due process and notions of fundamental fairness mandate that Defendants provide Plaintiffs with a copy of the execution procedures that will be used to extinguish their lives so that they can independently determine whether a particular aspect of the lethal injection or electrocution process may constitute cruel and unusual punishment, and to consult medical experts concerning that possibility.
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E. Facts Relevant to the Electrocution Claim. 427. In Kentucky, condemned inmates sentenced prior to March 31, 1998, may choose between electrocution and lethal injection. 428. Plaintiff will not select a method of execution. 429. The default method of execution in Kentucky is lethal injection. 430. If lethal injection is found unconstitutional on its face, Kentucky l<l;w requires executions to be carried out by electrocution. 431. Execution by electrocution violates the Eighth Amendment of the United States Constitution. 432. Nebraska is the only state in the country that utilizes electrocution as the sole method of execution. 433. Warden Simpson, who is in charge of the prison where executions take place, has never been involved in an execution by electrocution. 434. The Deputy Wardens at the Kentucky State Penitentiary have not participated in an execution by electrocution. 435. Execution by electrocution will cause Plaintiff to consciously suffer an excruciatingly painful and protracted death. 436. The American Veterinary Medicine Association bans electrocution III the euthanasia of animals. 437. Electrocution causes death by asphyxia and cardiac arrest. 438. At least 2000 volts of electricity are necessary to cause heart death. 439. If heart death is not immediately achieved, execution by electrocution IS excruciatingly painful.
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440. During an execution by electrocution, the body fluids heat to a temperature near the boiling point of water.
441. Execution by electrocution causes third and fourth degree bums. 442. Third and fourth degree bums are extremely painful. 443. Consciousness is controlled by the brain. 444. The human skull insulates the brain from high voltage electricity. 445. If high voltage electricity does not reach the brain, Plaintiff will remain conscious during his execution. 446. There are documented cases of condemned inmates who were alive after the first administration of electricity. 447. Condemned inmates' hearts have beaten after the flow of electricity has stopped. 448. The continued beating of the heart after the cessation ofthe current indicates that unconsciousness was not instantaneous. 449. Respiratory movement has been observed in condemned inmates after the flow of electricity has stopped. 450. Respiratory movement indicates brain function and a lack of instant incapacitation. 451. Respiratory centers are located near deep pain centers. 452. Respiratory movement shows that the pain centers are not instantly destroyed. 453. If Plaintiff is conscious during his electrocution, he will suffer an excruciatingly painful death by asphyxia and cardiac arrest. 454. Unnecessary pain and suffering is inherent in executions by electrocution. 455. Botched electrocutions have occurred in the United States.
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456. Execution by electrocution causes mutilation of the body including: a) severe burns to the face and scalp; b) burns to the legs; c) burns to other parts of the body; d) discoloring of the skin; e) layers of skin pealing and melting away; f) contortion of the limbs, fingers, and toes; g) vomiting blood; h) vomiting drool; and, i) exploding body parts.
457. The Commonwealth of Kentucky has carried out one execution by electrocution since 1962, the electrocution of Harold McQueen in 1997.
458. According to the post mortem examination of Harold McQueen conducted by the Western Regional Medical Examiner, McQueen suffered the following types of injuries from the electrocution:
a) a 1-2 mm ring like contact electrical burn encircling the parietal and frontal scalp, gray-brown in color, which was bordered by a 5mm -1 cm rim of pallor, which was bordered by a lateral rim of up to 3cm. of subcutaneous congestion;
b) a 17 x 6 cm. "irregular" contact electrical burn on the right calfjust below the knee;
c) partially charred skin with blistering;
d) a 1-2 mm "c" shaped electrical burn on the right thigh;
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e) pressure marks from the electric chair straps present on the face, back of head, extremities, and abdomen;
f) red-purple ecchymosis (escape of blood into the tissue) on the right bicep; g) "irregular" red-purple ecchymosis on the upper left forearm; and, h) a cluster of red-purple petechiae (hemmorrhage) on the dorsal right foot. 459. Execution by electrocution violates the cruel and unusual punishment clause of the Eighth Amendment because electrocution: a) causes unnecessary pain and suffering; b) creates a risk of unnecessary pain and suffering; c) mutilates the body; d) serves no legitimate purpose considering the existence of readily available and less painful alternatives; and, e) violates evolving standards of decency.
VI. EXHAUSTION OF ADMINISTRATIVE REMEDIES 460. Exhausting administrative remedies through a prison grievance policy is not required for this type of action because the injuries are prospective in the sense that the injuries will not occur until the execution takes place. 461. Slaughter has not filed an institutional grievance. But based on the treatment of Moore's grievance, it is clear that administrative remedies are unavailable for the type of claims at issue in this case. With Moore, Defendants denied his grievance on the basis that it was not a grievable issue. See Grievance Rejection Notice for Brian Keith Moore attached to Brian Keith Moore's complaint. Thus, Slaughter need not exhaust administrative remedies
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because there can be no relief afforded through the institutional grievance process and thus no available administrative remedy to exhaust.
VII. CLAIMS FOR RELIEF Claim A - - administration of chemicals. 462. Defendants intend to extinguish Plaintiffs life by administering chemicals in a manner that creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. Claim B - - three chemical combination. 463. Defendants intend to execute Plaintiff by injecting a combination of three chemicals - - sodium thiopental, pancuronium bromide, and potassium chloride - - that creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim C - - analgesic 464. Defendants' failure to administer an analgesic during the lethal injection process creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim D - - sodium thiopental 465. Defendants' use of sodium thiopental as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
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Claim E - - pancuronium bromide as lethal injection chemical 466. Defendants' use of pancuronium bromide as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. Claim F - - pancuronium bromide preventing public perception of effects of chemicals 467. The use of pancuronium bromide prevents public awareness necessary to any change in consensus for or against lethal injection, in violation of the Eighth Amendment to the United States Constitution.
Claim G - - pancuronium bromide under standards of decency 468. The use of pancuronium bromide does not conform with evolving standards of decency, and thus, Defendants' use of pancuronium bromide violates the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.
Claim H - - potassium chloride 469. Defendants' use of potassium chloride as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim I - - deliberate indifference involving the chemicals 470. Defendants' adoption of lethal injection chemicals on the basis that other states use the same chemicals, their failure to consult with medical professionals, and their failure to consider using alternative chemicals for lethal injections after they were put on notice of problems with the lethal injection chemicals and less painful alternative chemicals that could be used to carry out lethal injections constitutes deliberate indifference towards medical needs in violation ofthe Eighth Amendment to the United States Constitution.
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CLAIM J - - monitoring to ensure that the inmate does not feel pain after sodium thiopental injected
471. Defendants' failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM K - - deliberate indifference for not monitoring to ensure that the inmate does not
feel pain after sodium thiopental injected 472. Defendants' failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide creates constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM L - - monitoring to ensure that the inmate does not feel pain after pancuronium bromide is injected
473. Defendants' failure to ensure that the condemned inmate is incapable of feeling pain after the injection ofpancuronium bromide creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM M - - deliberate indifference for not monitoring to ensure that the inmate does not
feel pain after pancuronium bromide is injected 474. Defendants' failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
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CLAIM N - - training of execution team 475. Defendants' failure to provide adequate training in inserting LV.'s, mixing lethal injection chemicals, injecting the lethal injection chemicals, and monitoring to ensure that the condemned inmate cannot feel pain creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM 0 - - cut-down procedure 476. The use of cut-down procedure creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM P - - inserting an I.V. in the groin 477. Inserting an LV. in the groin creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM Q - - attempting to insert an I.V. for up to 60 minutes 478. Attempting to insert an LV. for up to 60 minutes causes excessive pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM R - - pain from attempting to insert I.V. forup to 60 minutes 479. Attempting to insert an LV. for up to 60 minutes creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM S - - mutilation by attempting to insert lV. for up to 60 minutes 480. Attempting to insert an LV. for up to 60 minutes mutilates the body in violation of the Eighth Amendment to the United States Constitution.
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CLAIM T- - not having a guaranteed method of obtaining venous access 481. Defendant's failure to have a guaranteed means for accessing Plaintiff's veins will cause Plaintiff unnecessary psychological suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM U- - deliberate indifference for not having guaranteed means of accessing
Plaintiff's veins 482. Defendant's failure to have a guaranteed means for accessing Plaintiff's veins evinces deliberate indifference towards known medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM V - - maintaining life if a stay of execution is granted after the first or second chemical is administered.
483. Defendants' failure to have the proper equipment, chemicals, and personnel available at the execution chamber in case a stay of execution is granted after the first or second chemical is administered constitutes the arbitrary deprivation of life in violation of the Eighth Amendment and violates substantive due process.
CLAIM W - - deliberate indifference involving maintaining life if a stay of execution is granted after the first or second chemical is administered.
484. Defendants' failure to have the proper equipment, chemicals, and personnel available at the execution chamber in case a stay of execution is granted after the first or second chemical is administered is deliberate indifference towards known medical needs in violation of the Eight Amendment to the United States Constitution.
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CLAIM X - - deliberate indifference for lack of training in emergency cardiac life support 485. Defendants' failure to adequately train its personnel in reversing the effects of the
chemicals and in emergency cardiac life support is deliberate indifference towards known medical needs in violation of the Eighth Amendment to the United States Constitution because despite knowing that a stay of execution could be granted after the first or second chemical is administered, Defendants have done nothing to ensure that their execution team is adequately trained to maintain Plaintiffs life if such a stay is granted.
CLAIM Y - - deliberate indifference for not seeking medical advice on what equipment, chemicals, and personnel are necessary to maintain life after the first or second chemical is injected.
486. Defendants' reliance on their general counsel, who is not a medical professional, to inform them of what chemicals, personnel, and equipment is necessary to maintain life after sodium thiopental or pancuronium bromide is injected, rather than consulting medical professionals experienced with these chemicals, is deliberate indifference towards known medical needs, in violation of the Eighth Amendment to the United States Constitution.
CLAIM Z - - Refusal to provide Plaintiff with execution protocols. 487. Defendants' refusal to provide Plaintiff with a complete copy of the electrocution and lethal injection execution protocols deprives Plaintiff of federal due process and fundamental fairness because it prevents them from making a meaningful choice between methods of execution as permitted under Kentucky law, and because it prevents them from reviewing the execution procedures to determine if additional constitutional violations may exist for which they are currently unaware.
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CLAIM AA- - electrocution as mutilation. 488. Execution by electrocution is unconstitutional because it mutilates the body in violation of the Eighth Amendment to the United States Constitution.
CLAIM BB - - electrocution as inherent pain 489. Execution by electrocution violates the Eighth Amendment to the United States Constitution because pain is inherent in the method of execution.
CLAIM CC - - electrocution and the risk of pain 490. Execution by electrocution creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM DD - - electrocution violates evolving standards of decency 49l. Execution by electrocution is contrary to evolving standards of decency and thus violates the Eighth Amendment to the United States Constitution.
VIII - - PRAYER FOR RELIEF 493. Plaintiff requests a temporary restraining order and a preliminary injunction barring Defendants from carrying out Plaintiffs execution during this lawsuit. 494. Plaintiff requests a temporary restraining order and a preliminary injunction barring Defendants from carrying out Plaintiffs execution in the manner they currently utilize for carrying out lethal injections. Plaintiff also seeks an order declaring that Defendants' current chemicals and procedures for carrying out lethal injections violate the Eighth Amendment. 495. Plaintiff requests a temporary restraining order and preliminary injunction barring Defendants from carrying out his execution until they come up with a reasonable, humane means for guaranteeing venous access during his execution.
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496. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that does not administer an analgesic. Plaintiff also seeks an order declaring that the failure to administer an analgesic during the lethal injection process violates the Eighth Amendment.
497. Plaintiff requests a temporary restraining order and a preliminary injunction barring Defendants from forcibly medicating Plaintiff with Valium prior to his execution. Plaintiffs also request an order declaring that administering Valium when using sodium thiopental violates the Eighth Amendment to the United States Constitution.
498. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that utilizes sodium thiopental. Plaintiff also seeks an order declaring that the use of sodium thiopental in lethal injections violates the Eighth Amendment to the United States Constitution.
499. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that utilizes pancuronium bromide. Plaintiff also seeks an order declaring that the use of pancuronium bromide in lethal injections violates the Eighth Amendment to the United States Constitution.
500. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that utilizes potassium chloride. Plaintiff also seeks an order declaring that the use of potassium chloride in lethal injections violates the Eighth Amendment to the United States Constitution.
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501. Plaintiff seeks an order declaring that Defendants' failure to consider using alternative chemicals in lethal injections constitutes deliberate indifference in violation of the Eighth Amendment to the United States Constitution.
502. Plaintiffrequests a temporary restraining order and preliminary injunction barring Defendants from executing him by lethal injection unless Defendants inject the chemicals directly into his vein.
503. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiffs execution without adequate procedures for monitoring for the ability to feel pain prior to and during the injections of pancuronium bromide and potassium chloride. Plaintiff also seeks an order declaring that Defendants' failure to monitor for the ability to feel pain prior to and during the injections of pancuronium bromide and potassium chloride violates the Eighth Amendment to the United States Constitution.
504. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiffs execution unless an anesthesiologist monitors for consciousness throughout the execution, and unless the anesthesiologist can take remedial measures to stop Plaintiff from feeling pain if the anesthesiologist determines that Plaintiff is in pain at any point during the execution.
505. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from inserting an I.V. in the groin and an order declaring that inserting an I.V. in the groin violates the Eighth Amendment to the United States Constitution.
506. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from using a cut down procedure and an order declaring that using a cut down procedure in lethal injections violates the Eighth Amendment to the United States Constitution.
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507. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from attempting to insert an LV. into Plaintiff for more than 20 minutes and an order declaring that attempting to insert an LV. for more than 20 minutes violates the Eighth Amendment to the United States Constitution.
508. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiffs execution until Defendants have the proper equipment for maintaining life after sodium thiopental and pancuronium bromide have been injected, and until Defendants have properly trained individuals to operate that equipment. Plaintiff also seeks an order declaring that Defendants' current equipment for maintaining life after the injection of sodium thiopental and pancuronium bromide is injected is insufficient to maintain life, and that their failure to have the proper equipment at the execution chamber violates the Eighth Amendment to the United States Constitution.
509. Plaintiff requests a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiffs execution until they have been provided with a copy of the lethal injection and electrocution protocols and given adequate time to review the protocols. Plaintiff also seeks an order declaring that the failure to disclose the execution protocols violates due process and fundamental notions offaimess.
510. Plaintiff requests an order declaring that execution by electrocution violates the Eighth Amendment to the United States Constitution.
511. Plaintiff requests such further relief that this Court finds necessary.
58

Case 3:06-cv-00022-KKC Document 87 Filed 08/25/2006 Page 59 of 59 RESPECTFULLY SUBMITTED,

DAVID M. BARRON Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
COUNSEL FOR JEFFREY LEONARD
June 16,2006.

MARGUERITE NEILL THOMAS Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

59
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 Case 3:06-cv-00022-KKC Document 88 Filed 08/25/2006 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
FRANKFORT DIVISION

ELECTRONICALLY FILED

)

BRIAN KEITH MOORE,

)

)

Plaintiff

)

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON,

)

Warden, Kentucky State

)

Penitentiary, Eddyville Kentucky, )

)

SCOTT HAAS

)

Medical Director for the

)

Kentucky Department of Corrections)

)

ERNIE FLETCHER,

)

Governor of the Commonwealth . )

of Kentucky

)

)

and,

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

--------------------------~)

CIV. ACTION # 3:06-CV-22-KKC CAPITAL CASE

DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION BARRING DEFENDANTS FROM SCHEDULING OR CARRYING OUT PLAINTIFF'S EXECUTION DURING THE PENDENCY OF THIS LITIGATION.

Come now the Defendants, by and through counsel, and submit the following Response

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Case 3:06-cv-00022-KKC Document 88 Filed 08/25/2006 Page 2 of 11
to Plaintiff Brian Keith Moore's Motion for a Preliminary Injunction Barring Defendants from Scheduling and Carrying Out Plaintiffs Execution During The Pendency of this Litigation.
Plaintiffs motion for a preliminary injunction is nothing more than a guise to stay his execution, and this Court should treat this motion as such rather than a motion for a preliminary injunction.
LEGAL STANDARD FOR PRELIMINARY INJUNCTION A preliminary injunction should only be granted in extraordinary circumstances where it is clearly shown that one's rights will suffer immediate and irreparable injury pending a hearing. In Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994), the Sixth Circuit Court of Appeals set out the four factors to be considered in deciding whether to grant a preliminary injunction as follows:
(1) The likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction.
Id. at 1099. Here, the Plaintiffs likelihood of success on the merits is minimal, while the public interest in the Commonwealth's ability to carry out the Plaintiffs lawful sentence clearly outweighs the Plaintiffs interest in delaying the scheduling of his execution.
LIKELIHOOD OF SUCCESS ON THE MERITS· The Plaintiffs challenges to the Commonwealth's lethal injection procedures are the same as those raised and decided by in the case of Baze, et al. v. Rees, et.al, Case No. 04-CI-
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Case 3:06-cv-00022-KKC Document 88 Filed 08/25/2006 Page 3 of 11
01094, Franklin Circuit Court (2005); appeal pending, Case No. 2005-SC-00543, Kentucky.
Supreme Court (2005). In Baze, death row inmates Ralph Baze and Thomas C. Bowling filed
an action for declaratory and injunctive relief challenging the constitutionality of Kentucky's
death penalty lethal injection protocol on grounds that it constitutes cruel and unusual
punishment under the Eighth Amendment to the United States Constitution and Section 17 of
the Kentucky Constitution. The Franklin Circuit Court upheld the state's lethal injection
procedures in all respects except for a portion of the protocol that permitted lethal injection into
the neck of the condemned prisoner. This portion of the protocol has been removed from
Kentucky's lethal injection procedure.
Moreover, Kentucky's lethal injection procedures are substantially similar to the
procedures used in other states utilizing lethal injection as a means for carrying out executions.
In no instance have these lethal injection procedures been held to violate the prohibition against
cruel and unusual punishment of the Eighth Amendment to the United States Constitution or
Section 17 of the Kentucky Constitution.! As a result, the Plaintiffs prospects for success on
the merits are minimal.
! See e.g., Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir. 1988), cert. denied, 492 U.S. 925, 109 S.Ct.3263, 106 L.Ed.2d 608 (1989); Woolls v. McCotter, 798 E.2d 695, 698 (5th Cir.1986), cert. denied, 478 U.S. 1031, 107 S.Ct. 15,92 L.Ed.2d 769 (1986); Hill v. Lockhart, 791 F.Supp. 1388, 1394 (E.D.ArkI992) (holding that lethal injection is "the most humane type of execution available"); Felder v. Estelle. 588 F.Supp. 664, 674 (S.D.Tcx.1984); State v.Hinchey, Ariz., 890 P.2d 602,610 (1995); State v. Deputy, 644 A.2d 411, 421 (Del. Super. 1994);· Hopkinson v. State, 798 P.2d 1186, 1187 (Wyo. 1990); State v. Moen, 309 Or. 45, 786 P.2d 111, 143 (1990); People v. Stewart 123 Ill.2d 368,528 N.E.2d 631,639 (1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1356,103 L.Ed.2d 824 (1989); Poland v. Stewart 117 F.3d 1094, 1104-05(9thCir.1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 1533, 140 L.Ed.2d 683 (1998); State v. Webb. 252 Conn. 128,
750 A.2d 448, 458 (Conn.), cert. denied, 531 u.s. 835, 121 S.Ct. 93, 148 LEd.2d 53(2000); State V.
Carter 89 Ohio St.3d 593, 608, 734 N.E.24 345(2000); LaGrand V. Stewart, 133 F.3d 1253, 1265(9th Cir.1998); Cooper V. Rimmer, 358 F.3d at 357; Sims v. State. 754 So.2d 657,668 n.20 (Fla. 2000); Moore V. State. 771 N.E.2d at 56 n.4; Wheeler V. Commonwealth, 121 S.W.3d at 186; Spencer V. Commonwealth. 385 S.E.2d 850,853 (Va. 1989).
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IRREPARABLE HARM In addition to weighing the Plaintiff s likelihood of success on the merits, the Court must also consider the likelihood of immediate irreparable harm to the Plaintiff. The remote possibility of some feared wrong in the future is insufficient to support a trial court's award of a preliminary injunction. See also Reid v. Johnson. 333 F. Supp.2d 543, 550 (2004) ("The rule barring consideration of remote or speculative injury for purpose of a preliminary injunction applied despite the degree of injurious consequences.") Plaintiff asserts that absent a temporary injunction he will likely suffer an irreparable injury because: (1) he will be executed; (2) the Defendants allegedly do not have procedures in place to reverse the effects of the substances if the first substance is administered and a stay is granted; (3) the Commonwealth allegedly will carry out his execution in a manner that will cause him to suffer severe and unnecessary pain; and (4) the Defendants are allegedly unwilling or unprepared to provide emergency life saving medical treatment if a stay of execution is granted after the first chemical is administered. In the context of a civil action, the irreparable harm does not include the act of Plaintiffs imminent death. Nelson v. Campbell, -U.S.---, 124 S.Ct. 2117, 2123, 158 L.Ed2d 924 (2004). See also Reid, 333 F. Supp.2d at 550; Manning v. Hunt, 119 F.3d 254, 265 (4th Cir. 1997). Plaintiffs first assertion of likely irreparable harm should therefore be rejected. Plaintiff also contends he is entitled to a preliminary injunction because the Defendants do not have a procedure to revive the inmate in the event of a last minute stay of execution. "[T]he grant of a stay of execution communicated to prison authorities after the lethal injection has been administered is not a likely event" In re Readoption with Amendments of Death Penalty Regulations N.J.A.C. 10A:23. 367 N.J. Super. 61, 69, 842 A.2d 207,211 (N.l Super. 2004). If
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Case 3:06-cv-00022-KKC Document 88 Filed 08/25/2006 Page 5 of 11
such ~n event does occur, the Defendants intend to make every feasible and possible step to revive the Plaintiff. The Defendants intend to have an ambulance waiting immediately outside the death house, a defibrillator in the death chamber, and medically trained personnel on standby in the event of a last-minute stay after the administration of the drugs has begun. The likelihood of this event happening is remote and speculative and thus, not a ground to grant a preliminary injunction.
The possibility that there may be some minor difficulty locating a vein does not subject Plaintiff to the offensive punishments the Eighth Amendment prohibits. See Reid. supra; State v. Webb, Conn., 750 A.2d 448,456(2000), citing, Hill v. Lockhart, 791 F.Supp. 1388, 1394 (E.D.Ark 1994); Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir 1996) (rejecting the notion that the Eighth Amendment guarantees the right to be free of pain during any medical procedure). Plaintiffs second assertion oflikely irreparable harm should be rejected.
Plaintiff contends that under Kentucky's execution protocol there is a risk that he will retain or regain consciousness after the injection of the sodium thiopental and therefore experience all the pain associated with the Pavulon and the potassium chloride. In Reid, the Fourth Circuit examined facts surrounding the Virginia execution protocol. Virginia's protocol uses 2 grams of sodium thiopental; and 50 milligrams of pancuronium bromide or Pavulon. Reid, 333 F. Supp.2d at 546. Virginia uses 120 milliequivalents of potassium chloride, where Kentucky uses 240 milliequivalents of potassium chloride. The evidence in the Reid case established the possibility of the inmate regaining consciousness within the ensuing ten minutes after the first drug is administered is 3/1000 of one percent; regaining consciousness by minute fifteen is 6/1000 of one percent; and regaining consciousness within twenty minutes never rises above 11100 of one percent. Reid. 333 F. Supp.2d at 547. Under the protocol used by Kentucky
5

Case 3:06-cv-00022-KKC Document 88 Filed 08/25/2006 Page 6 of 11
the chance that Plaintiff will be conscious of any pain associated with the use of pancuronium bromide and potassium chloride is less than 611 000 of one percent.
Plaintiffs assertions of irreparable injury are remote and speculative at best. Thus, he fails to satisfy the threshold for a preliminary injunction.
HARM TO OTHERS AND THE PUBLIC INTEREST An injunction is an equitable remedy, and "[equity must take into consideration the State's strong interest in proceeding with its judgment and .. attempt{s] at manipulation." Gomez v. United States District Court for Northern Dist. of Cal, 503 U.S. 653,654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curium). Thus, before granting a stay, a court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, see In re Blodgett. 502 U.S. 236, 239, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992) (per curiam); McCleskev v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) ("[T]he power of a State to pass laws means little if the State cannot enforce them"), there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry ofa stay. Nelson v. Campbell. -U.S. -.124 S.Ct. 2117,2126, 158 L.Ed.2d 924 (2004). "[D]eath penalty litigation is replete with the potential for false claims and intentional delay." Van Tran v. State, Tenn., 6 S.W.3d 257,268 (1999). See, e.g. State v. Harris, 114 Wash.2d 419, 789 P.2d 60,69(1990); Woodard v. Hutchins, 464 U.S. 377, 380, 104 S.Ct. 752, 753, 78 L.Ed.2d 541 (1984) ("A pattern seems to be developing in capital cases of multiple review in which claims that could have been presented years ago are brought forward--often in a piecemeal fashion--only after the execution date is set or becomes imminent."). This request for a
6

Case 3:06-cv-00022-KKC Document 88 Filed 08/25/2006 Page 7 of 11
temporary injunction is just another example of an attempt to abuse the judicial process. See Hutchins, supra.
Throughout his temporary injunction request, Plaintiff contends that the delay in this matter is the result of the Defendants and the Commonwealth. Interestingly, he does not explain. why he waited more than six years after the amendment to KRS 431.220 to file this action. This eleventh hour petition challenging the constitutionality of lethal injection would be encouraged because the death row petitioner would know that the mere filing of a conc1usory petition would result in a stay of execution and delay the meting out of his lawful sentence. Van Tran, 6 S.W.3d at 269. Placing no initial burden on Plaintiff is an invitation to specious challenges. rd., Harris. 789 P.2d at 69.
It is well settled that the state has "a significant interest in meting out a sentence of death in a timely fashion." Nelson, -U.S.--, 124 S.Ct. at 2123, citing, Calderon v. Thompson. 523 U.S. 538, 556-57, 118 S.Ct. 1489,140 L.Ed.2d 728 (1998); In re Blodgett, 502 U.S. 236, 238, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992) (per curiam); McCleskev v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454,113 L.Ed.2d 517 (1991) ("[T]he power ofa State to pass laws means little if the State cannot enforce them"). The Commonwealth's interest in finality and in meting out a sentence of death in a timely manner acquires "an added moral dimension" when the lengthy state and federal proceedings reviewing the conviction and sentence have run their course. See Calderon, 5231.1.5. at 556-57, 118 S.Ct. 1489. At this point, the Commonwealth and the victims of crime can expect the moral judgment of the Commonwealth to be carried out without delay. rd. at 556, 118 S.Ct. 1489, citing Payne v. Tennessee. 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). "To unsettle these expectations is to inflict a profound injury to the powerful and legitimate interest in punishing the guilty, an interest shared by the State and the victims of crime
7

Case 3:06-cv-00022-KKC Document 88 Filed 08/25/2006 Page 8 of 11
alike." Id. (internal citations and quotations omitted).
In Bowersox v. Williams, 517 U.S. 345, 346 (1996), the U.S. Supreme Court granted the
State's motion to vacate the stay of execution and explained:
"A stay of execution pending disposition of a second or successive federal habeas petition should be granted only when there are 'substantial grounds upon which relief might be granted." Delo v. Stokes, 495 U.S. 320, 321 (1990) (per curiam )(quoting Barefoot v. Estelle, 463 U.S. 880, 895 (1983)). Entry of a stay on a second or third habeas petition is a drastic measure, and we have held that it is "'particularly egregious' "to enter a stay absent substantial grounds for relief. Delo v. Blair, 509 U.S. 823 (1993) (citation omitted). On the record before us, we can discern no such grounds. We are persuaded by the report prepared by Magistrate Judge Hays, which meticulously addresses each of Williams' claims and finds each to be abusive, successive, procedurally defaulted, or meritless, and by the District Court's order adopting that report, in which the District Court also denied Williams' dilatory motion to amend the habeas petition. The Court of Appeals abused its discretion by entering a stay on this record.
Id. In Hutchins, the Court vacated a stay of execution. Justice Powell filed a concurring opinion
approved by a majority of the Court. The Court subsequently cited his opinion with approval in
McCleskey v. Zant. 499 U.S. at 488. In Hutchins. 464 U.S. at 379-380, Justice Powell explained
the Court's rejection of a stay:
This case is a clear example of the abuse of the writ that §2254(b) was intended to eliminate. All three of Hutchins' claims could and should have been raised in his first petition for federal habeas corpus. The new evidence that Hutchins offers to support his claim that he was insane at the time of the crime is the report of a forensic psychiatrist prepared after a January 2, 1984 psychiatric examination. Hutchins, convicted some four years ago, and frequently before courts during the intervening
8

Case 3:06-cv-00022-KKC Document 88 Filed 08/25/2006 Page 9 of 11
years, does not explain why this examination was not conducted earlier. He does not claim that his alleged insanity is a recent development. In light of his claim that he also was insane at the time of the crime, such an assertion would be implausible. Finally, Hutchins does not explain why he failed to include his challenge to the jury selection in his prior habeas petition. A pattern seems to be developing in capital cases of multiple review in which claims that could have been presented years ago are brought forward--often in a piecemeal fashion--only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate--even in capital cases-- this type of abuse of the writ of habeas corpus.
In Re Saon, 118 F.3d 460 (6th Cir. 1997), denied a successive habeas petition and denied
a motion for stay of execution in the McQueen death penalty case. The Court stated, in part, that:
The prevention .of the execution is itself an overturning of the sentence. McQueen was sentenced to death, not simply to a lifetime of litigating about death.
* * * *
When we are considering a very belated claim, raised at the last minute to prevent execution, after many earlier opportunities to raise the issue were foregone, the significant and irreparable harm of execution is balanced by an equally significant and irreparable harm to the legal process, a harm not fully repairable by action after appeal. In Re Parker, 49 F.3d 204,208 (6th Cir.1995). Thus, what is necessary to support a stay is a strong and significant likelihood of success on the merits, which simply does not exist in this case.
Id. at 463,465. "There is no good reason for this abusive delay, which has been compounded by
last-minute attempts to manipulate the judicial process." Gomez v. United States Dist. Court for
Northern Dist. of Cal., 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam).
9

Case 3:06-cv-00022-KKC Document 88 Filed 08/25/2006 Page 10 of 11
See, e.g., Vickers v. Johnson. - u.s. -, 124 S.Ct. 1196, 157 L.Ed.2d 1224 (2004) (stay of
execution denied); Zimmennan v. Johnson, ---U.S. 124 S.Ct. 1168, 157 L.Ed.2d 1059 (2004) (same); Beck v. Rowsey, - U.S. -, 124 S.Ct. 980, 157 L.Ed.2d 811(2004) (stay of execution vacated). The granting of these injunctions not only disrupts settled law but invites meritless lastminute applications to disrupt the orderly state administration of the death penalty. Moore v. Texas, 535 U.S. 1110, 122 S.Ct. 2350,2354, 153 L.Ed.2d 154 (2002).
Absent a compelling justification for bringing this action at the eleventh hour, such as a material change in the applicable law or factual circumstances or an exceptionally strong showing on the merits, this Court should not simply ignore such clear guidance from the Supreme Court. Moreover, such challenges inappropriately force the Court to make an otherwise unnecessary choice between orderly consideration of the Moore's claims and "the state's interest in the finality of convictions that have survived direct review in the state court system." See Calderon v. Thompson. 523 U.S. at 555.
The Plaintiff thus fails to satisfy the threshold requirement to warrant an injunction in this case. Thus, his request for a temporary injunction should be denied.
CONCLUSION For all the foregoing reasons, the Defendants respectfully urge this Court to deny Plaintiffs' Motion for a Preliminary Injunction Barring Defendants from Scheduling and Carrying Out Plaintiffs Execution During The Pendency of this Litigation.
10

Case 3:06-cv-00022-KKC Document 88 Filed 08/25/2006 Page 11 of 11
Respectfully Submitted,
/s/ Jeffrey T. Middendorf Jeffrey T. Middendorf Holly Harris-Ray Justice & Public Safety Cabinet Office of Legal Services 125 Holmes Street Frankfort, Kentucky 40601 (502) 564-2024 Counsel for Defendants
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was electronically filed with the Court by using the CMlEFC system and was served by facsimile transmission to: Hon. Susan J. Balliet, Hon. David M. Barron, and Hon. Marguerite Neill Thomas, Assistant Public Advocates, 100 Fair Oaks Lane, Suite 301, Frankfort, Kentucky 40601, on this 30th day of June, 2006.
/s/ Jeffrey T. Middendorf Counsel for Defendants
11

 
 Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
FRANKFORT DIVISION

ELECTRONICALLY FILED

____________________________________

)

BRIAN KEITH MOORE,

)

)

and

)

)

JEFFREY LEONARD

)

Plaintiffs

)

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON,

)

Warden, Kentucky State

)

Penitentiary, Eddyville Kentucky, )

)

SCOTT HAAS

)

Medical Director for the

)

Kentucky Department of Corrections )

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

)

and,

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

CIV. ACTION # 3:06-cv-22 CAPITAL CASE

THOMAS CLYDE BOWLING’S EMERGENCY MOTION TO INTERVENE AS PLAINTIFF-INTERVENOR

Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 2 of 11
Under Fed. R. Civ. P. 24(b), Thomas Clyde Bowling hereby moves this Court for leave to intervene as a plaintiff in this action. As the attached intervenor complaint establishes, Bowling shares a common legal question with Brian Keith Moore and Jeffrey Leonard’s complaint: whether the implementation of Kentucky’s lethal injection procedure and chemicals will subject him to an unreasonable risk that he will suffer cruel and unusual punishment. Because this case is still in its early stages, allowing Bowling to intervene will not unduly delay or prejudice the adjudication of the rights of the original parties. In addition, neither the failure to exhaust administrative remedies nor res judicata prevents this Court from considering Bowling’s challenge to the chemicals and procedures used in Kentucky lethal injections. Thus, this Court should permit Bowling to intervene in this action as it did with Leonard.
Because Bowling will likely receive an execution date before Moore and Leonard, Bowling requests expedited review of his motion to intervene.
The grounds for this Motion are set forth in the Memorandum below. MEMORANDUM IN SUPPORT
Thomas Clyde Bowling should be permitted to intervene in this action because he is asserting an identical claim to that raised by Moore and Leonard and is raising his claim in a timely fashion. Fed.R.Civ.P. 24(b), permits intervention upon a timely application that establishes that the intervening party’s claim shares a question of law or fact with the original parties and intervening will not substantially impair the rights of the original parties to the pending action. Plaintiff Brian Keith Moore, a Kentucky death sentenced inmate, filed this action under 42 U.S.C. §1983 for violations and threatened violations of his right to be free from cruel and unusual punishment under the Eighth and
2

Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 3 of 11
Fourteenth Amendments to the United States Constitution. Four months later, this Court allowed Jeffrey Leonard to intervene. Bowling is a true party in interest because he is similarly situated, asserts the same cause of action, and makes the same arguments as Plaintiffs Moore and Leonard, with the exception of compromised veins. See Intervenor Bowling’s Proposed Complaint (attached).
Specifically, Bowling argues that the Commonwealth’s current lethal injection procedures including the chemicals Defendants plan to inject and the procedures for injecting the chemicals are unconstitutional under both the Eighth and Fourteenth Amendments. Like Moore and Slaughter, he also challenges Defendants’ lack of adequate life-preserving equipment and personnel if a stay of execution is granted after the first or second chemical is injected, as well as the constitutionality of electrocution. Because these are the same claims presented by Moore and Leonard, the commonality requirement is satisfied. This motion is also being made in a timely fashion and will not unduly delay or prejudice the adjudication of the rights of the other parties. Finally, neither exhaustion of administrative remedies nor res judicata poses an obstacle to this Court’s authority to allow Bowling to intervene.
A. Bowling satisfies the requirements for permissive intervention laid out in Fed. R. Civ. P. 24(a) (2). Rule 24 (b) of the Federal Rules of Civil Procedure allows a party to intervene if three requirements are satisfied: 1) the application to intervene is timely; 2) the applicant’s claim or defense and the main action have a question of law or fact in common; and, 3) intervention will not unduly delay or prejudice the adjudication of the rights of the original parties. For the reasons discussed below, each of these requirements is satisfied.
3

Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 4 of 11
1. Bowling’s application is timely. In determining whether Bowling’s motion to intervene is timely, this Court should consider the extent to which this case has progressed and how quickly after the action was initiated Bowling moved to intervene. Moore filed this action approximately nine months ago. At the end of August, this Court allowed Leonard to intervene. No action has occurred in this case since then. Currently, this case remains in its infancy as the pro se clerk’s office considers numerous discovery motions. Thus, the current status of this case will not be impacted by allowing Bowling to intervene - - a request that he is making less than a week after the Kentucky Supreme Court decided his case, thereby removing any impediment to Bowling joining this action. The expedience in which Bowling has moved to intervene and the lack of progression of this case means that Bowling’s motion to intervene is timely.
2. Bowling’s claim and the main action have a question of law or fact in common.
As this Court recognized in permitting Leonard to intervene, the commonality requirement for permissive intervention may be satisfied where the legal question involved is the same, notwithstanding factual differences between the parties. Like Leonard, Bowling shares a common legal question with Moore’s complaint: whether the implementation of Kentucky’s lethal injection procedure will subject him to an unreasonable risk that he will suffer cruel and unusual punishment and whether Kentucky’s life-saving equipment is sufficient to maintain life if a stay of execution is granted after the first or second lethal injection chemical is administered. Bowling thus satisfies the commonality requirement for permissive intervention.
4

Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 5 of 11
3. Intervention by Bowling will not unduly delay or prejudice the adjudication of the rights of the original parties.
Allowing Bowling to intervene will not “unduly delay or prejudice the adjudication of the rights of the original parties.”1 This case remains in its early stages as this Court has yet to rule on numerous discovery motions. Admittedly, mandatory disclosures under Fed.R.Civ.P. 26, responses to request for production of documents, interrogatories, and admissions have been provided, but this should have no impact on this Court’s decision to allow Bowling to intervene. Much of these initial discovery methods were undertaken prior to this Court’s ruling allowing Leonard to intervene, and Bowling does not intend to file any additional discovery requests. Further, Bowling will likely receive an execution date prior to Moore or Leonard. For these reasons, neither the current Plaintiffs nor the current Defendants will suffer any delay or prejudice from Bowling intervening in this action. Rather, allowing Bowling to intervene will further the interests of all parties and this Court by not forcing Bowling to duplicate efforts by filing a separate lawsuit. Accordingly, the unduly delay and prejudice analysis for permissive intervention favors allowing Bowling to intervene in this action.
B. Administrative Remedies Bowling has not exhausted his administrative remedies. However, this should not affect this Court’s decision on his intervention for three reasons. First, exhausting administrative remedies is not a requirement to intervene. As this Court ruled in the June 13, 2006 order in Moore’s case, there is nothing suggesting that the Prison Litigation Reform Act overrules the Federal Rules of Civil Procedure. Thus, since the Federal Rules of Civil Procedure do not mention exhaustion of administrative remedies in the context of
1 Fed. R. Civ. P. 24(b).
5

Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 6 of 11
intervention, doing so is not a prerequisite to intervening in a lawsuit. Second, Bowling is dealing with prospective injuries that cannot be remedied after they occur. Third, exhausting administrative remedies should be excused because there is no adequate corrective process for doing so. Both Moore and Leonard have filed a grievance with the prison. Their grievances were rejected as non-grievable because it involved a statute. Thus, there is no adequate process for grieving this claim through the inmate grievance system. If Bowling filed a grievance, it would be treated in the same way. Thus, there is no relief that can be afforded through the administrative grievance process, and therefore there is no available administrative remedy to exhaust. Finally, this Court allowed Leonard to intervene before he exhausted administrative remedies. For these reasons, Bowling should not be required to exhaust his administrative remedies in order to intervene in this action.
C. Res judicata does not prevent this Court from exercising jurisdiction. By prohibiting Bowling from deposing or otherwise questioning the execution team, the state courts deprived Bowling the opportunity to discover information that was necessary to fully prepare and litigate the issues concerning the chemicals and procedures Defendants intend to use to carry out his execution. This prevents the application of res judicata in this case. Res judicata does not apply where the losing party in the first decision did not have a full and fair opportunity to litigate the claim or issue.2 This includes situations where a plaintiff was denied sufficient discovery, which has the effect of burdening the
2 Allen v. McCurry, 449 U.S. 90 (1980).
6

Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 7 of 11
plaintiff’s ability to prepare his or her case.3 When “there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation,” redetermination of issues is warranted.4 Here, there are substantial reasons to doubt the quality, extensiveness, or fairness of the procedures used in the Kentucky state courts to adjudicate Bowling’s lethal injection claims.
The state courts prohibited Bowling from deposing or otherwise examining the execution team members. As a result, at the state court hearing, both Bowling and the court were required to rely on representations made by counsel for Defendants and other individuals who neither participate in carrying out executions nor are physically present during crucial stages of the execution process. These representations included statements about the qualifications and experience of the execution team, what happened in past executions, and what will happen at future executions. The representations also include the responsibilities of individual members of the execution team. Four days ago, the Kentucky Supreme Court upheld the lower court’s ruling. By doing so, the Kentucky Supreme Court made it clear that it was not going to require a full and fair opportunity to litigate the constitutionality of the chemicals and procedures Kentucky uses in lethal injections.
As recent lethal injection litigation in Missouri has proven, representations from attorneys and corrections personnel who are not on the execution team is no substitute for questioning the execution team members and can be the difference between prevailing and losing on a challenge to the chemicals and procedures used in lethal injections.
3 West v. Ruff, 961 F.2d 1064, 1066 (2d Cir. 1992) (citing the lack of sufficient discovery as one of the reasons why the plaintiff lacked a full and fair opportunity to litigate his claim in state court). 4 Montana v. United States, 440 U.S. 147, 164 n. 11 (1979).
7

Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 8 of 11
In Taylor v. Crawford,5 after hearing testimony from Dr. Heath and Dr. Dershwitz (two experts that testified in the state court lethal injection litigation), a federal district court judge in Missouri upheld Missouri’s lethal injection procedures and chemicals - the same chemicals that are used in Kentucky.6 On remand from the Eighth Circuit to conduct a more thorough hearing, a Missouri federal district court judge allowed interrogatories of members of the execution team and an anonymous deposition of one of the members of the execution team.7 The information learned from the Missouri execution team proved that the previously made representations about what would happen during an execution are not what were actually occurring.
At least some members of the execution team had not seen a written execution protocol and were not fully aware of their responsibilities.8 In addition, deviations from the protocol were occurring on a regular basis and members of the execution team were found to not be as qualified as the Missouri Department of Corrections had held them out to be.9 Thus, it quickly became clear that what was believed to be occurring during an execution that was considered constitutional by a Missouri federal court judge was merely a theoretical plan that was not taking place - - a fact that only became known because the judge allowed discovery of the execution team. Relying on the information obtained from the execution team members, the federal judge in Missouri ruled that Missouri’s lethal injection procedures create an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.10 Thus, a
5 No. 2:05-cv-04173 (W.D. Mo., order dated, June 26, 2006) (attached). 6 Id. at 2-3. 7 Id. at 4. 8 Id. at 8-10. 9 Id. 10 Id. at 13.
8

Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 9 of 11
constitutional procedure became unconstitutional because of information that was obtained only by examining the execution team. The same thing could happen here if Bowling is given the opportunity to examine the execution team members, which has also been permitted in California, Louisiana, and Maryland.
In addition to not being able to examine the members of the execution team, recent information out of California and North Carolina showing that the testimony of Dr. Dershwitz - - the only expert that testified on behalf of Defendants in the state litigation - was misleading, inaccurate, and possibly intentionally so casts substantial doubt on the reliability of Dr. Dershwitz’s testimony,11 the only medical testimony that contradicted the evidence Bowling presented in state court. The recent developments which discredit Dr. Dershwitz’ testimony and the state court’s refusal to allow Bowling to depose or otherwise examine the execution team members create “a reason to doubt the quality, extensiveness, or fairness of procedures followed in the prior litigation.”12 As a result, the state court’s adjudication of Bowling’s claims was “inadequate for ascertainment of the truth,” making it this Court’s “duty to disregard the state findings and take evidence anew.”13
11 As discussed in Bowling’s intervenor complaint, toxicology analysis results from individual executed in North Carolina after the state court trial in Bowling’s lethal injection case that were conducted to prove Dr. Dershwitz’s conclusions have done the exact opposite by proving that the amount of sodium thiopental in the condemned inmates body was not enough to prevent the inmate from feeling pain. In addition, California execution logs prove that inmates do not cease breathing within a minute of the injection of sodium thiopental as Dr. Dershwitz alleges. 12 Montana v. United States, 440 U.S. at 164 n.11. 13 Townsend v. Sain, 372 U.S. 239, 316 (1963) (holding that where a hearing is “seriously inadequate for ascertainment of the truth, it is the federal judge’s duty to disregard the state findings and take evidence anew”).
9

Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 10 of 11
Conclusion The three requirements for permissive intervention - - a timely request to intervene in a case where the intervenor’s claim and the main action share a question of law or fact and intervention will not unduly delay or prejudice the rights of the parties - are satisfied here. Bowling’s motion to intervene is being filed four days after the Kentucky Supreme Court affirmed the denial of his claim, thereby affirming the fact that he would not receive a full and fair opportunity to litigate his claims in state court. As this Court recognized in allowing Leonard to intervene, Bowling’s complaint shares a common legal action with Moore’s complaint. And, because this case remains in its early stages with discovery issues not having been resolved and no action beyond discovery have taken place, none of the parties to the main action will be prejudiced by allowing Bowling to intervene. Thus, the requirements for permissive intervention are satisfied. The failure to exhaust administrative remedies has no impact on this Court’s authority to allow Bowling to intervene. Because Bowling was not allowed to depose or otherwise question the execution team members and new evidence casts doubt on the only medical testimony presented by Defendants in state court, res judicata also does not bar this Court from allowing Bowling to intervene in this case. Thus, Bowling requests that this Court grant his motion for permissive intervention under Fed.R.Civ.P. 24(b).
10

Case 3:06-cv-00022-KKC Document 100-1 Filed 11/27/2006 Page 11 of 11

RESPECTFULLY SUBMITTED,

November 27, 2006.

/s/ David M. Barron __________________________ DAVID M. BARRON JOHN ANTHONY PALOMBI Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
COUNSEL FOR THOMAS CLYDE BOWLING

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was electronically filed with the Court by using the CM/ECF system on this 27th day of November 2006 and that a copy of the foregoing document was personally delivered to Marguerite Thomas at 100 Fair Oaks Lane, Suite 301, Frankfort, Kentucky, 40601 on the same day.
/s/ David M. Barron _____________________________ Counsel for Thomas Clyde Bowling

11

Case 3:06-cv-00022-KKC Document 100-3 Filed 11/27/2006 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
FRANKFORT DIVISION

ELECTRONICALLY FILED

____________________________________

)

THOMAS CLYDE BOWLING

)

)

Plaintiff

)

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON,

)

Warden, Kentucky State

)

Penitentiary, Eddyville Kentucky, )

)

SCOTT HAAS

)

Medical Director for the

)

Kentucky Department of Corrections )

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

)

and,

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

CIV. ACTION # 3:06-cv-222 CAPITAL CASE

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

Case 3:06-cv-00022-KKC Document 100-3 Filed 11/27/2006 Page 2 of 59
I. NATURE OF ACTION1 1. This action is brought pursuant to 42 U.S.C. §1983 for violations and threatened violations of Plaintiff’s right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks equitable and injunctive relief. 2. Defendants’ current method of lethal injection is unconstitutional because there is an unnecessary risk that Plaintiff will be tortured to death. No government within the United States may intentionally or negligently use an excruciatingly painful and unreliable procedure or chemical for carrying out executions, particularly when readily available alternative means of carrying out the sentence exist. 3. Kentucky’s alternative method of execution for individuals sentenced to death prior to 1998, electrocution, violates the Eighth Amendment of the United States Constitution. 4. Kentucky uses three chemicals to carry out lethal injections: sodium thiopental, pancuronium bromide, and potassium chloride. 5. Each of Defendants’ lethal injection chemicals poses an unnecessary risk of pain and suffering. 6. Defendants’ execution procedures fail to ensure that personnel responsible for anesthesia and monitoring of lethal injection are properly trained and qualified. 7. Monitoring to ensure that the inmate is in the appropriate plane of consciousness to prevent the inmate from feeling pain is essential to ensuring that the condemned inmate does not feel pain during an execution.
1 Plaintiff incorporates by reference the memorandum of law and exhibits filed by Brian Keith Moore in this case. 2

Case 3:06-cv-00022-KKC Document 100-3 Filed 11/27/2006 Page 3 of 59
8. Defendants’ protocol lacks standards for administering lethal injection and monitoring consciousness.
9. Defendants’ fail to monitor for the appropriate plane of consciousness that prevents the condemned inmate from feeling pain during the execution by lethal injection.
10. Defendants’ execution procedures fail to provide for identification of and addressing of contingencies that may occur during an execution, in event of problems.
11. Kentucky’s failure to have adequate equipment to maintain life if a last minute stay is granted after the first or second chemical is administered and failure to have adequately trained individuals to operate the equipment violates the Eighth Amendment to the United States Constitution and federal due process.
12. Plaintiff is not alleging that Defendants could never execute him. Rather, he asserts that any execution must comport with the United States Constitution. Plaintiff could be executed if: 1) no separate legal challenge reverses his conviction or death sentence; 2) Plaintiff does not receive executive clemency; 3) Defendants design a constitutionally acceptable method for executing Plaintiff, which can include lethal injection if done in a manner that does not pose an unnecessary risk of pain and suffering, and which monitors for consciousness; and, 4) Defendants maintain proper equipment at the execution chamber for maintaining life if a stay of execution is granted after the first or second chemical is administered, and have adequately trained individuals at the execution chamber to operate the equipment and render life saving measures.
13. Plaintiff seeks a temporary restraining order and preliminary injunction preventing Defendants from carrying out his execution until Defendants come up with a means of guaranteeing venous access.
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14. Plaintiff seeks a temporary restraining order and preliminary injunction preventing Defendants from carrying out his execution by the means currently employed for carrying out an execution by lethal injection in the Commonwealth of Kentucky.
15. Plaintiff does not claim that lethal injection is per se unconstitutional, but instead seeks an Order declaring that Defendants’ current chemicals and means for conducting an execution by lethal injection violates the Eighth and Fourteenth Amendments to the United States Constitution.
16. Plaintiff also seeks an Order that Defendants’ failure to have proper drugs and equipment for maintaining life if a last minute stay of execution is granted and Defendants’ failure to have adequately trained personnel at the death chamber to operate the life-maintaining equipment violate due process and the Eighth Amendment to the United States Constitution.
17. Plaintiff seeks an Order declaring that electrocution violates the Eighth and Fourteenth Amendments.
II. PLAINTIFF 18. Plaintiff Thomas Clyde Bowling is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky. 19. The Kentucky Supreme Court affirmed the denial of Plaintiff’s state-court challenge to lethal injection on November 22, 2006. Because Plaintiff was not allowed to depose or otherwise question the execution team, he did not receive a full and fair hearing in state court. Thus, principles of res judicata do not bar this Court from reviewing the claims in this complaint.
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III. DEFENDANTS 20. Defendant John D. Rees is the Commissioner of the Kentucky Department of Corrections 21. Defendant Thomas Simpson is the Warden of the Kentucky State Penitentiary, where Plaintiff’s execution will occur. 22. Defendant Scott Haas is the Medical Director for Kentucky Department of Corrections. He is responsible for designating a physician to examine Plaintiff in the weeks leading up to his execution, and for designating a physician to be present at the execution facility to render medical treatment if a stay of execution is granted after the first and/or second chemical is administered. 23. Defendant Ernie Fletcher is the Governor of Kentucky. He is responsible for scheduling Plaintiff’s execution and has the authority to call off an execution if a suitable vein in Plaintiff’s body cannot be accessed within 60 minutes of attempting peripheral venous access. 24. Defendants Unknown Executioners are employed by or under contract with the Kentucky Department of Corrections, to make preparations for, and carry out, Plaintiff’s execution. They include, but are not limited to, physicians, emergency medical technicians, phlebotomists, physician’s assistants, the execution team, the executioner, the I.V. team, and the team leader. Plaintiff does not yet know their identities and Defendants will not reveal the identities of these persons.
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IV. JURISDICTION AND VENUE 25. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights violation), 1651 (all-writs), 2201 (declaratory relief), and 2202 (further relief). 26. This action arises under the Eighth and Fourteenth Amendments of the United States Constitution, and 42 U.S.C. § 1983. 27. Venue is proper under 28 U.S.C. § 1391. All Defendants reside in the same state. The principal place of business for Defendant Rees, Defendant Fletcher, and Defendant Haas is Frankfort, Kentucky. 28. All Defendants are state actors acting under color of state law.
V. FACTS 29. Defendants are responsible for carrying out executions in Kentucky. 30. Under the Eighth Amendment to the United States Constitution, cruel and unusual punishment claims involving a particular means of effectuating a sentence of death are analyzed under a six prong test in which proof of any one prong establishes an Eighth Amendment violation:
a) the physical pain inflicted is excessive in light of readily available alternatives;
b) the risk of pain is more than the Constitution tolerates; c) the risk of pain and suffering is unnecessary in light of available alternatives; d) mutilation of the body during the execution; e) unnecessary psychological suffering; f) the particular means of effectuating the sentence of death violates evolving standards of decency.
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31. Defendant Rees worked with the Oklahoma Department of Corrections from July 1976 until December 1980.
32. The first state to adopt lethal injection was Oklahoma in 1977. 33. Defendant Rees was involved in creating the policies and procedures for carrying out lethal injections in Oklahoma. 34. In 1978, Oklahoma drafted the first lethal injection protocol in the country. 35. Defendant Rees was involved in drafting Oklahoma’s 1978 lethal injection protocol. 36. Prior to adopting the 1978 protocol, Oklahoma neither conducted nor consulted any medical or scientific studies in deciding what chemicals to use or the quantities of the chemicals to administer. 37. Oklahoma’s original execution protocol called for the administration of a short acting barbiturate in conjunction with a paralytic agent. Potassium chloride was mentioned as a possible paralytic agent. 38. Potassium chloride is not a paralytic agent. 39. The first lethal injection execution in the United States was carried out in Texas in 1982 by the administration of sodium thiopental, pancuronium bromide, and potassium chloride. 40. Prior to the first lethal injection in 1982, no state conducted or consulted any medical or scientific studies in determining which chemicals to use for lethal injections or in what quantity to administer them. 41. No state has conducted or consulted any medical or scientific studies on sodium thiopental, pancuronium bromide, or potassium chloride during lethal injections, or into the quantity of each drug to administer.
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42. Defendants intend to execute Plaintiff by administering the following drugs in the following manner:
a) sodium thiopental (also known as sodium pentothal) (3 grams); b) pancuronium bromide (also referred to as pavulon) (50 milligrams); and, c) potassium chloride (240 milliequivalents) The drugs are injected in succession, one after the other. Saline solution is injected in between each drug. 43. Defendants use these three chemicals because these chemicals were used by other states at the time Kentucky created its first lethal injection protocol. 44. Defendants neither conducted nor relied upon any medical or scientific studies in determining to use these chemicals. 45. Defendants neither conducted nor relied upon any medical or scientific studies in determining the quantity of chemicals to administer. 46. In deciding which chemicals to use in Kentucky lethal injections, Defendants did not consult with any anesthesiologists, doctors, or other medically trained personnel. 47. During state-court lethal injection litigation on behalf of Plaintiff, Defendants changed their protocol to increase the dose of sodium thiopental from 2 grams to 3 grams. This change was made in late 2004. 48. The decision to increase the amount of sodium thiopental was made by Defendant Rees. 49. Defendant Rees has no medical training. 50. Prior to increasing the amount of thiopental from 2 grams to 3 grams, Defendant Rees did not consult any medical professionals about increasing the dose of thiopental.
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51. Defendant Rees conducted no medical or scientific studies on the effects of the lethal injection chemicals before increasing the amount of thiopental from 2 grams to 3 grams.
52. Defendant Rees did not consult any anesthesiologists or medically trained person about increasing the amount of thiopental before increasing the dose from 2 grams to 3 grams.
53. Prior to April 18, 2005, Defendant Rees thought the directions on the lethal injection chemical bottles would say how much of the chemical to administer.
54. The package inserts and labels on the lethal injection chemicals do not say how much of the chemicals to administer during a lethal injection.
55. Other than the fact that sodium thiopental, pancuronium bromide, and potassium chloride are used in other states, prior to April 18, 2005, Defendant Rees had no idea why these three chemicals are used in Kentucky lethal injections.
56. Defendant Rees currently has no knowledge why these three chemicals are used in Kentucky lethal injections.
57. Prior to April 18, 2005, Defendant Rees did not know why Kentucky lethal injections used three chemicals instead of one or two.
58. Defendant Rees still does not know why Kentucky lethal injections used three chemicals instead of one or two.
59. Until April 18, 2005, Defendants thought that all states that carry out lethal injection administer sodium thiopental, pancuronium bromide, and potassium chloride.
60. New Jersey’s lethal injection protocol does not use pancuronium bromide. Instead, they administer only sodium thiopental and potassium chloride.
61. Prior to April 18, 2005, Defendants were unaware that New Jersey uses only two chemicals: sodium thiopental and potassium chloride to carry out lethal injections.
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62. Defendants have not consulted with the New Jersey Department of Corrections about why they do not use pancuronium bromide or any other neuromuscular blocking agent in lethal injections.
63. Defendants have not considered adopting New Jersey’s chemical combination (sodium thiopental and potassium chloride).
64. Defendants have not consulted any anesthesiologists about the viability of administering only sodium thiopental and potassium chloride.
65. Defendants have not consulted any medical professionals about the viability of administering only sodium thiopental and potassium chloride.
66. Assisted suicide is legal in Oregon. According to the Death with Dignity reports required by Oregon law, more than 170 terminally ill people have been prescribed medication to end their lives in Oregon.
67. In almost all of these cases, the terminally ill person was prescribed a large dose of pentobarbital, a long-acting barbiturate, as the only chemical to cause death.
68. Defendants have not consulted any medical personnel about replacing sodium thiopental with pentobarbital.
69. Defendants have not considered replacing sodium thiopental with pentobarbital. 70. Defendants have not consulted any medical personnel about administering pentobarbital as the sole chemical to cause death. 71. Defendants have not considered administering pentobarbital as the sole lethal injection chemical. 72. The usage of sodium thiopental is not mandated by Kentucky law. 73. The usage of pancurium bromide is not mandated by Kentucky law.
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74. The usage of potassium chloride is not mandated by Kentucky law. 75. Finding that any one, a combination of, or all these chemicals violates the Eighth Amendment to the United States Constitution will not require statutory amendment or variance. 76. To carry out Plaintiff’s execution, Defendants intend to insert two I.V.’s into Plaintiff. 77. The three chemicals will be injected from only one I.V. line. 78. The I.V. insertion team will spend up to 60 minutes attempting to insert an I.V. into Plaintiffs’ body. 79. If the I.V. insertion team is unable to insert the I.V.’s after 60 minutes, Defendant Rees and Defendant Simpson will ask Defendant Fletcher to call off the execution and reschedule it. 80. The chemicals are injected from outside the execution chamber by pushing them through a tube that flows approximately five feet to the catheter that is inserted into the condemned inmate’s vein. 81. The chemicals are injected by a member of the execution team referred to as the executioner. 82. The executioner (the person who actually injects the chemicals) has no medical training. 83. Plaintiff has never been allowed to depose or otherwise question Kentucky’s execution team. 84. Plaintiffs in lethal injection litigation in other states have been allowed to depose or otherwise examine the execution team in California, Maryland, and Missouri.
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85. Based on information learned from questioning Missouri’s execution team, a federal district court judge in Missouri reversed his decision upholding Missouri’s execution protocol and instead ruled that the chemicals and procedures Missouri uses in carrying out lethal injections pose an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
86. Testimony from the only expert presented by the state in Baze v. Rees is now known to have been inaccurate.
A. Facts related to the unconstitutionality of the tri-chemical cocktail used in Kentucky lethal injections.
87. Sodium thiopental (pentothal) is an ultra-short acting barbiturate. 88. Sodium thiopental begins to wear off almost immediately. 89. Pancuronium bromide is a curare-derived agent that paralyzes all skeletal and voluntary muscles. 90. Pancuronium bromide has no impact whatsoever on awareness, cognition, or sensation. 91. Potassium chloride is an extraordinarily painful chemical which activates the nerve fibers lining a person’s veins and interferes with the rhythmic contractions of the heart, causing cardiac arrest. 92. This particular combination and sequence of chemicals create an unnecessary risk that Plaintiff will suffer an excruciatingly painful and protracted death in violation of the Eighth Amendment to the United States Constitution. 93. Prior to injecting sodium thiopental, Defendants offer the condemned inmate Valium.
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94. If Plaintiff refuses to take Valium prior to his execution, Defendants will force him to do so if Defendants determine that Valium should be administered.
95. Defendants have no guidelines for determining under what circumstance a forced administration of Valium should take place.
96. Valium can interfere with sodium thiopental’s effectiveness. 97. Sodium thiopental is a powder that must be mixed into a liquid before injecting it. 98. According to the package insert for sodium thiopental, it should be administered only “by individuals experienced in the conduct of intravenous anesthesia.” 99. Defendants are not experienced in the process of intravenous anesthesia. 100. The executioner, the person administering thiopental, is not experienced in the conduct of intravenous anesthesia. 101. According to the package insert for sodium thiopental, “individual response to the drug is so varied that there can be no fixed dosage.” 102. Defendants inject the same dose of thiopental to all condemned inmates. 103. The concentration of thiopental injected determines the potency of sodium thiopental, i.e., if the sodium thiopental is too diluted, it will be less potent, and not ensure that the condemned inmate does not feel pain at any point during his execution. 104. Defendants are not adequately trained in mixing the lethal injection chemicals to ensure that the concentration of thiopental injected into the condemned inmate prevents the inmate from feeling pain. 105. Sodium thiopental is an ultra short-acting barbiturate which is ordinarily used only in the induction phase of anesthesia to render a surgical patient unconscious for mere
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minutes, specifically so that the patient may re-awaken and breathe on their own power if any complications arise in inserting a breathing tube pre-surgery.
106. Defendants administer sodium thiopental to prevent the condemned inmate from feeling pain.
107. Sodium thiopental is the only chemical administered by Defendants to prevent the condemned inmate from feeling pain.
108. Sodium thiopental does not relieve pain. 109. Analgesics (which include opiates) are the class of chemicals that relieve pain. 110. Sodium thiopental is not an analgesic. 111. Defendants do not administer an analgesic while carrying out lethal injections. 112. Sodium thiopental is almost never used as the only anesthetic during a surgical proceeding. 113. During surgical procedures, a barbiturate is administered to render a person unconscious and an analgesic is administered to ensure that the patient does not feel pain. 114. Both a barbiturate and an analgesic are continuously administered during surgical procedures. 115. Sodium thiopental was a state of the art barbiturate in 1977 when lethal injection first became a method of execution in the United States. 116. Sodium thiopental has been supplanted in the medical field by propafol. 117. As of April 20, 2005, Defendants are aware that sodium thiopental has been supplanted in the medical field by propafol. 118. Propafol is a safer and longer acting barbiturate than sodium thiopental.
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119. Defendants have not consulted any medical professionals about the viability of using propafol instead of sodium thiopental.
120. Defendants have not taken any steps to look into the viability of using propafol instead of sodium thiopental.
121. Defendants have not taken any steps to look into the viability of replacing sodium thiopental with pentobarbital.
122. Because of its brief duration (usually about five to seven minutes), there is a reasonable probability that sodium thiopental will fail to provide a sedative effect throughout the entire execution process.
123. Three grams of sodium thiopental or even a larger dose is insufficient to induce unconsciousness if sufficient sodium thiopental does not reach the condemned prisoner’s bloodstream.
124. The concentration of sodium thiopental not the dose of thiopental injected into the condemned inmate determines whether the condemned inmate will feel pain.
125. Defendants fail to monitor the concentration of sodium thiopental and fail to monitor to ensure that the full quantity of sodium thiopental reaches the inmate’s bloodstream.
126. Defendants fail to determine if the inmate is unconscious to the point of being unable to feel pain prior to administering pancuronium bromide and potassium chloride.
127. Defendants’ only form of monitoring for unconsciousness prior to injecting the second and third chemical is physical observation of the inmate.
128. Prior to the administration of pancuronium bromide, checking corneal reflexes or pinching a person to see if a person responds are methods that could indicate whether a person can feel painful stimuli.
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129. After the injection of pancuronium bromide, machines such as an EEG monitor can be used to monitor for the ability to feel painful stimuli.
130. If a person is able to feel pain, pancuronium bromide and potassium chloride would be extremely painful.
131. Because Defendants choose to use potassium chloride, instead of less painful alternatives, it is essential to ensure that a person cannot feel pain.
132. There are multiple levels of unconsciousness. 133. General anesthesia, also known as surgical anesthesia, is the level of anesthesia a person must be in to not feel pain during a lethal injection. 134. A person who appears unconscious to the lay observer may not be in a state of general anesthesia. 135. A person who appears unconscious can feel pain or wake up from painful stimuli if they are not in a state of general anesthesia. 136. A person who is unable to respond to verbal stimuli might be conscious enough to wake and feel painful stimuli, such as the pain caused by pancuronium bromide and potassium chloride. 137. When sodium thiopental is the sole anesthetic, at least 39-42 mg/L of thiopental in the bloodstream is necessary to ensure that a person will not wake up from painful stimuli. See Baselt, Disposition of Toxic Drugs and Chemicals in Man. 138. The 39-42 mg/L is the amount of thiopental necessary in the blood stream to prevent a person from waking from painful stimuli (in other words, the amount of thiopental necessary to achieve surgical anesthesia), not the amount of thiopental necessary to prevent a person from responding to a verbal command.
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139. North Carolina injects sodium thiopental during executions. 140. Numerous toxicology reports on executed death row inmates in North Carolina, including toxicology results from four executions conducted between November 2005 and the end of January 2006, indicate thiopental levels below 39-42 mg/L. 141. Because the level of thiopental in bodies of inmates executed in North Carolina was below 39-42 mg/L, these inmates were likely able to feel pain during their executions. 142. Because North Carolina injects pancuronium bromide, the condemned inmate could not communicate that they were conscious and feeling pain, and evidence of consciousness could not be apparent to the observers of the execution. 143. South Carolina administers two grams of sodium thiopental. 144. Toxicology reports on death row inmates in Arizona and South Carolina indicate that numerous death-sentenced inmates in Arizona and South Carolina had less than 39-42 mg/L of thiopental in their bloodstream when executed. 145. Because the level of thiopental in body of inmates executed in Arizona and South Carolina was below 39-42 mg/L, these inmates were likely able to feel pain during their execution. 146. Because both Arizona and South Carolina inject pancuronium bromide, none of the condemned inmates could communicate that they were conscious and feeling pain, and evidence of consciousness could not be apparent to the observers of the execution. 147. Edward Harper is the only person judicially executed by lethal injection in Kentucky. 148. Toxicology reports show that the level of thiopental in Edward Harper’s blood at the time of his execution by Defendants was between 3 and 6.5 mg/L.
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149. The concentration of thiopental in Harper’s bloodstream was insufficient to ensure that he could not feel painful stimuli during his execution.
150. Edward Harper likely was conscious enough to feel pain when pancuronium bromide was administered.
151. Edward Harper likely was conscious enough to feel pain when potassium chloride was administered.
152. Because Defendants injected Harper with pancuronium bromide, Harper could not communicate that he was conscious and feeling pain, and evidence of consciousness was not apparent to the observers of the execution.
153. Dr. Dershwitz, who has testified on behalf of multiple correctional departments in lethal injection challenges in many states asserts that neither Harper nor any other inmate were likely conscious, defined by him as the ability to respond to verbal stimuli, during their execution.
154. Dr. Dershwitz has conducted no studies on sodium thiopental. 155. Dr. Dershwitz bases his opinions on how chemicals, other than sodium thiopental, react with the human body. 156. Dr. Dershwitz bases his opinion on his knowledge of the use of sodium thiopental in conjunction with other chemicals to render an inmate unconscious. 157. Dr. Dershwitz’s opinion is also based on the amount of thiopental necessary to ensure a lack of response to verbal stimuli. 158. Dr. Dershwitz rarely relies on thiopental as the sole anesthetic during surgical procedures.
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159. Dr. Dershwitz has not reviewed literature on injecting thiopental as the sole anesthetic and, until he testified in Baze v. Rees, he was unfamiliar with Baselt’s standard text for determining the amount of thiopental necessary to ensure that a person will not respond to painful stimuli.
160. A larger concentration of sodium thiopental is necessary to obtain and maintain unconsciousness when thiopental is used as the only chemical for this purpose.
161. An individual who is unable to respond to verbal stimuli can feel pain. 162. A larger concentration of sodium thiopental is necessary to ensure that a person who cannot respond to verbal stimuli also cannot feel pain. 163. Even according to Dershwitz, with 7 mg/L of sodium thiopental in the bloodstream, 50% of the population will be able to respond to verbal commands. 164. Based on Dershwitz’s calculations, the amount of thiopental in the blood necessary to prevent a person from feeling pain must be higher than 7 mg/L. 165. Toxicology results from numerous individuals executed in Arizona, North Carolina, South Carolina, and the lone lethal injection in Kentucky indicate that the thiopental levels in the bloodstream were lower than 7 mg/L. 166. Dershwitz has calculated the amount of thiopental he expects to find in the blood five minutes after an injection of 3grams of thiopental. Dershwitz’s predictions on this change depending on what state has hired him as an expert. 167. In litigation in Maryland on behalf of Steven Oken, Dr. Dershwitz testified (by affidavit) that 30.15 mg/L of thiopental should be in Oken’s blood five minutes after injection. 168. 30.15 mg/L is below the 39-42 mg/L threshold level necessary to prevent a person from feeling painful stimuli, according to Baselt.
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169. Toxicology results from Oken’s execution show that 10 mg/L of thiopental, not 30.15 mg/L, was found in Oken’s bloodstream.
170. In the four most recent executions in North Carolina, blood to test for the amount of thiopental was drawn shortly after death and at the time of the autopsy.
171. Steven Van McHone’s toxicology results showed thiopental levels of 1.5 mg/L and 21 mg/L.
172. The thiopental levels in McHone were lower than predicted by Dershwitz. 173. The thiopental levels in McHone were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli. 174. The thiopental levels in McHone were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt. 175. Elias Syriani’s toxicology results showed thiopental levels of 4.4 mg/L, 11 mg/L, and 12 mg/L. 176. The thiopental levels in Syriani were lower than predicted by Dershwitz. 177. The thiopental levels in Syriani were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli. 178. The thiopental levels in Syriani were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt. 179. Kenneth Boyd’s toxicology results showed thiopental levels of 11 mg/L, and 29 mg/L. 180. The thiopental levels in Boyd were lower than predicted by Dershwitz. 181. The thiopental levels in Boyd were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli.
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182. The thiopental levels in Boyd were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt.
183. Perrie Simpson’s toxicology results showed thiopental levels of 8.7 mg/L, 12 mg/L, 42 mg/L.
184. Two of the thiopental levels in Simpson were lower than predicted by Dershwitz. 185. Two of the thiopental levels in Simpson were lower than the amount Dershwitz says is necessary to prevent 50% of the population from responding to verbal stimuli. 186. Two of the thiopental levels in Simpson were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Dershwitz. 187. According to Dershwitz, 5 grams of thiopental should render a person unconscious in about one minute. 188. Recently, Delaware executed Brian Steckel. It took many minutes for the chemicals to take effect. 189. After the sodium thiopental was injected, Steckel was able to speak and asked why it was taking so long for the chemicals to take effect. 190. Steckel was not rendered unconscious within a minute of the injection of thiopental. 191. The length of time it took for Steckel to be rendered unconscious shows that the concentration or amount of thiopental (or both) that reached his bloodstream was insufficient to prevent him from reacting to painful stimuli. 192. Witnesses to Steckel’s execution observed Steckel’s convulsions during his execution. 193. Convulsions are caused by potassium chloride.
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194. Pancuronium bromide prevents witnesses from seeing convulsions caused by potassium chloride.
195. Because Steckel convulsed during his execution, the pancuronium bromide did not paralyze the body.
196. Because the sodium thiopental did not prevent Steckel from feeling pain, he was able to feel the excruciating agony of pancuronium bromide and pain of potassium chloride.
197. California administers 5 grams of sodium thiopental. 198. Recently disclosed information on the last 13 lethal injections in California establishes that many inmates are conscious, and thus feeling the pain of pancuronium bromide and potassium chloride during their executions. 199. Because sodium thiopental begins to wear off almost immediately and cessation of respiration does not mean death, within five minutes or less of the injection, the inmates will be able to feel painful stimuli. 200. According to Dershwitz, a 5 gram dose of sodium thiopental will cause virtually all people to cease respiration and consciousness within a minute. 201. Evidence from six executions in California show that, even after a 5 gram dose of sodium thiopental, a condemned inmate’s breathing does not stop within a minute, and in some situations has lasted for as long as twelve minutes. 202. Jaturun Siripongs was executed in California on February 9, 1999. The administration of sodium thiopental began at 12:04 a.m. and the administration of pancuronium bromide began at 12:08 a.m., yet respiration did not cease until 12:09 a.m., five minutes after the administration of sodium thiopental began and one minute after the administration of pancuronium bromide.
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203. The amount of time that elapsed before respiration stopped establishes that Siripongs did not stop breathing within one minute of the injection of sodium thiopental.
204. The amount of time that elapsed before respiration stopped creates a high likelihood that the sodium thiopental was not working and that Siripongs was able to feel pain during his execution.
205. Manuel Babbitt was executed in California on May 4, 1999. The administration of sodium thiopental began at 12:28 a.m. and the administration of pancuronium bromide began at 12:31 a.m., yet respiration did not cease until 12:33 a.m., five minutes after the administration of sodium thiopental began and two minutes after the administration of pancuronium bromide began.
206. In addition, brief spasmodic movements were observed in Babbitt’s upper chest at 12:32 a.m. Babbitt maintained a steady heart rate of 95 or 96 beats per minute for seven minutes after he was injected with sodium thiopental.
207. Babbitt’s heart rate and the amount of time that elapsed before respiration ceased establishes that Babbitt did not stop breathing within one minute of the injection of sodium thiopental
208. Babbitt’s heart rate and the amount of time that elapsed before death establishes that the sodium thiopental was not working and that Babbitt was likely able to feel pain during his execution.
209. Darrell Keith Rich was executed in California on March 15, 2000. The administration of sodium thiopental began at 12:06 a.m. and the administration of pancuronium bromide began at 12:08 a.m., yet respiration did not cease until 12:08 a.m., when pancuronium bromide was injected, two minutes after the administration of sodium thiopental began.
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210. Chest movements were observed in Rich from 12:09 a.m. to 12:10 a.m. 211. The above information on Rich’s execution establishes that Rich did not stop breathing within one minute of the injection of sodium thiopental 212. The above information on Rich’s execution establishes that the sodium thiopental was not working and that Rich was able to feel painful stimuli during his execution. 213. Stephen Wayne Anderson was executed in California on January 29, 2002. The administration of thiopental began at 12:17 a.m. and the administration of pancuronium bromide began at 12:19 a.m., yet respiration did not cease until 12:22 a.m., five minutes after the administration of sodium thiopental began and three minutes after the administration of pancuronium bromide began. 214. The above information establishes that Anderson did not stop breathing within one minute of the injection of sodium thiopental. 215. The above information establishes that the sodium thiopental was not working and that Anderson was likely able to feel painful stimuli during his execution. 216. Stanley Tookie Williams was executed on December 13, 2005. The administration of sodium thiopental began at 12:22 a.m., the administration of pancuronium bromide began at 12:28 a.m., and the administration of potassium chloride began at 12:32 a.m. or 12:34 a.m., yet respiration did not cease until either 12:28 a.m. or 12:34 a.m. 217. The above information establishes that Williams did not stop breathing within a minute of the injection of sodium thiopental. 218. The above information establishes that the sodium thiopental was not working and that Williams was likely able to feel painful stimuli during his execution.
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219. Clarence Ray Allen was executed on January 17, 2006. The administration of sodium thiopental began at 12:18 a.m., yet respiration did not cease until 12:27 a.m., when pancuronium bromide was injected.
220. The above information establishes that Allen did not stop breathing within one minute of the injection of sodium thiopental.
221. The above information establishes that the sodium thiopental was not working and that Allen was likely able to feel painful stimuli during his execution.
222. Defendants do not keep logs on whether and how long the condemned inmate is breathing.
223. Defendants have taken no precautions or corrective measures to ensure that three grams of sodium thiopental will reach an inmate’s bloodstream in the correct concentration and render the inmate unconscious enough to not feel pain.
224. Defendants do not use any medical equipment to monitor the condemned inmate’s respiration, heart beat, pulse, or brain waves during the execution.
225. If thiopental is not injected directly into a vein, it will not render a person unconscious.
226. If the vein collapses, thiopental will leak into the surrounding tissue and fail to render the inmate unconscious.
227. If thiopental is injected into a location in the body that is not a vein, the thiopental in the inmate’s body would be extremely painful.
228. During the execution of Joseph Clark in Ohio on May 2, 2006, Clark appeared to fall asleep, but about three or four minutes later, he raised his head and began speaking.
229. Clark’s vein collapsed after the chemicals began to flow.
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230. Because Clark’s vein collapsed, the chemicals began to flow into other parts of his body, causing pain but not rendering him unconscious or causing his death.
231. It took one hour and twenty six minutes to carry out Clark’s execution. 232. In surgical procedures, the quantity of anesthetic administered depends upon factors unique to the patient including size, weight, and past drug usage. 233. Administration of valium can lessen the efficacy of sodium thiopental. 234. In an individual who is resistant to sodium thiopental, a higher dose of sodium thiopental is necessary to induce unconsciousness to the point where the person will not feel pain. 235. An overweight person is likely to be more resistant to sodium thiopental. 236. Prolonged usage of barbiturates builds up a resistance to sodium thiopental. 237. Edward Harper presented none of the above mentioned risk factors. 238. An insufficient amount or concentration of sodium thiopental reached Edward Harper’s bloodstream. 239. Due to the chemical combination and sequence used in the Kentucky execution process, there is a probability that the sedative effect of the sodium thiopental will be neutralized instantly by the second chemical, pancruonium bromide. 240. When sodium thiopental is exposed to pancuronium bromide, sodium thiopental precipitates, i.e., returns to the solid condition. 241. Once sodium thiopental returns to its solid condition, it no longer performs its anesthetic function. 242. If Plaintiff is not adequately sedated to the point where he cannot feel painful stimuli, he will suffer the conscious experience of being paralyzed while suffocating and an
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intense fiery burning sensation in every nerve in his body, if Defendants execute him with the three chemicals Kentucky plans to use for his execution.
243. The second chemical involved in the lethal injection process, pancuronium bromide, is a derivative of curare that acts as a neuromuscular blocking agent.
244. Pancuronium bromide is a long acting neuromuscular blocking agent. 245. While pancuronium bromide paralyzes skeletal and voluntary muscles, including the diaphragm, it has no effect on consciousness or the ability to feel pain. 246. Pancuronium bromide will serve only to mask the excruciating pain and convulsions suffered by Plaintiff. 247. Pancuronium bromide prevents a conscious individual from notifying anyone that he or she is conscious or in pain. 248. Pancuronium bromide prevents a conscious individual from showing any signs of consciousness or pain. 249. Defendants do not monitor for consciousness or pain after the injection of sodium thiopental or pancuronium bromide. 250. Many means of monitoring for consciousness after injecting pancuronium bromide exist, including blood pressure cuffs, EEG monitoring, using an EKG machine (if located in the execution chamber and read throughout the execution, not just at the end to determine death). 251. None of the above means of monitoring for consciousness after injecting sodium thiopental or pancuronium bromide are used by Defendants. 252. A condemned inmate who appears unconscious could feel pain because
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1) less than the expected dose of the anesthetizing drug, sodium thiopental, has been successfully injected into the individual’s bloodstream, or has failed to remain in the person’s bloodstream;
2) sensitivity to sodium thiopental varies greatly among the population and some individuals;
3) the duration of the effectiveness of sodium thiopental has worn off; OR, 4) the concentration of sodium thiopental was insufficient to render the inmate
unconscious to the point where the inmate cannot feel pain. 253. If a condemned inmate regains consciousness or the ability to feel pain during an execution, the inmate will suffer the agony of suffocation and paralysis due to pancuronium bromide and the excruciating pain of potassium chloride. 254. The pain suffered by a conscious inmate would be less if Defendants replaced potassium chloride with some other chemical to stop the heart. 255. Pancuronium bromide collapses the lungs and, in a conscious person, causes the extreme agony of paralysis and suffocation. 256. Death by suffocation is akin to drowning. 257. Death by suffocation is akin to dying in a gas chamber. 258. Pancuronium bromide can cause individuals to have a gastric reaction that causes vomit to fill an inmate’s mouth. 259. The vomit caused by the usage of pancuronium bromide can flow into a person’s lungs causing suffocation. 260. Because pancuronium bromide paralyzes the diaphragm, a person is unable to regurgitate the vomit.
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261. If a person is conscious when the vomit flows into the mouth, a person paralyzed by pancuronium bromide is likely to suffer extreme pain and suffering as the person silently chokes to death on vomit.
262. The American Veterinary Medicine Association (AVMA) condemns the use of neuromuscular blocking agents such as pancuronium bromide in the euthanasia of animals when a sedative (anesthetic or barbiturate) is administered.
263. At least 31 states have made the use of pancuronium bromide on domestic animals illegal. Kentucky is one of a majority of States that have banned its use. K.R.S. section 321.181(17) and 201 K.A.R. 16:090.
264. Since legislatures began prohibiting using neuromuscular blocking agents with sedatives, no legislature or other governing body has expressly condoned this practice or repealed statutes forbidding it.
265. The first lethal injection procedure designed in the United States called for a paralytic agent to cause death.
266. Using pancuronium bromide or any chemical to stop respiration is not necessary to cause death.
267. Potassium chloride, the third chemical involved in Kentucky’s lethal injection process, stops the prisoner’s heart, and, thereby cause cardiac arrest and death.
268. With the use of potassium chloride, pancuronium bromide is not necessary to cause death.
269. Pancuronium bromide serves no legitimate purpose in a lethal injection execution, particularly considering the readily available alternative of conducting the lethal injection execution without pancuronium bromide.
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270. Pancuronium bromide is administered to make the lethal injection process more aesthetically palatable for the official witnesses by preventing the witnesses from seeing any involuntary twitching, convulsions, or seizures that may be caused by the potassium chloride or the dying process itself.
271. The involuntary muscle reactions caused by potassium chloride can be avoided by using many other non painful ways of stopping the heart that will not cause involuntary muscles reactions.
272. Eliminating pancuronium bromide from the lethal injection process will not increase the amount of pain that a condemned inmate suffers during the dying process.
273. Preventing official witnesses from seeing the effects of each chemical during the lethal injection process is not a legitimate reason to administer a drug, particularly when the drug increases the risk of inflicting horrific pain and suffering upon the condemned person.
274. Preventing witnesses from seeing the effects of the killing agent prevents public perception and awareness regarding that agent, and thus violates the Eighth Amendment to the United States Constitution because it prevents the public from moving towards an informed consensus either for or against the use of the killing chemical.
275. A chancery court in Tennessee has found the usage of pancuronium bromide during lethal injections to be arbitrary and unnecessary.
276. The use of pancuronium bromide during an execution violates evolving standards of decency.
277. The use of pancuronium bromide during an execution creates an unacceptable risk that Plaintiff will suffer an unnecessarily painful death.
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278. Potassium chloride, the third chemical used in Kentucky’s lethal injection process, is a strong alkaline chemical.
279. Potassium chloride is commonly used as road salt. 280. In Kentucky lethal injections, potassium chloride is used to stop the heart from beating, and thus to cause death. 281. The EKG printout from the one lethal injection execution in Kentucky (that of Edward Harper) shows that Harper was alive when potassium chloride was administered and that potassium chloride caused his death. 282. During the execution of Clarence Ray Allen in California on January 17, 2006, a second administration of potassium chloride had to be administered because the first one did not kill him. 283. The dose of potassium chloride administered to Allen should have caused his death in less than a couple of minutes, as soon as the potassium chloride cycled through Allen’s body. 284. The fact that a second dose of potassium chloride had to be administered to Allen establishes that the full dose of potassium chloride did not reach Allen’s heart. 285. When potassium chloride reaches the heart in large doses, such as that used in Kentucky lethal injections, it causes a massive heart attack. 286. The administration of potassium chloride is extremely painful when administered intravenously. 287. Potassium chloride ravages the organs by causing an extremely painful burning sensation in every nerve as it courses through the body.
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288. Pancuronium bromide prevents an inmate from expressing the pain caused by potassium chloride.
289. Potassium chloride can be replaced by many non-painful chemicals that would stop the heart in a short period of time without causing any convulsions.
290. Dilantin is a non-painful chemicals that would stop the heart in a short period of time without causing any convulsions.
291. Veterinarians do not use potassium chloride in euthanizing animals. 292. Veterinarians euthanize animals by injecting a lethal dose of pentobarbital. 293. Pentobarbital is a long acting barbiturate. 294. Pentobarbital is a potential alternative to the tri-chemical cocktail used in Kentucky lethal injections. 295. Defendants have shown a deliberate indifference to the risk of inflicting unnecessary pain and suffering and towards serious medical needs, by copying lethal injection procedures from other states without investing meaningful and independent efforts to ensure that Kentucky’s lethal injection execution procedures comply with contemporary medical standards and long-standing constitutional standards. 296. Upon information and belief, Defendants have conducted no scientific or medical studies concerning the chemicals and procedures they use for lethal injection since they were made aware of potential problems with the process in August 2004. 297. Defendants’ failure to conduct medical or scientific tests on the chemicals since August 2004 and their failure to adopt alternative chemicals and procedures in light of the information presented to them since August 2004 shows their deliberate indifference towards known medical needs.
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298. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because Warden Simpson, who is in charge of the prison where executions take place, has never been involved in an execution by lethal injection.
299. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because Warden Simpson, who is in charge of the prison where executions take place, has never witnessed an execution by lethal injection.
300. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because execution team members regularly have had difficulty inserting the IV needle into test subjects during mock lethal injections.
301. The risk of unnecessary pain and suffering is grave because when the Kentucky Department of Corrections carried out its first and only lethal injection, unanticipated problems occurred and the Department of Corrections proceeded without correcting these problems.
302. According to witnesses at the execution of Edward Harper on May 25, 1999, it took ten minutes and at least three stabs with a needle to find a suitable vein to inject the chemicals.
303. According to witnesses at the execution of Edward Harper on May 25, 1999, within two minutes of the administration of sodium thiopental, Harper’s face turned purple and became puffy.
304. Defendants did not determine if a purple and puffy face was normal during an execution by lethal injection, but continued with the execution.
305. Defendants have taken no steps subsequently to determine whether a purple and puffy face is normal during a lethal injection.
306. The risk of unnecessary pain and suffering is grave in Kentucky because the
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individuals responsible for mixing the chemicals, inserting the I.V.s, and injecting the chemicals are not adequately trained.
307. The risk of unnecessary pain and suffering and malfunctions in the lethal injection process is grave in Kentucky because Defendants inject the chemicals from outside the execution chamber by sending the chemicals through a tube that carries the chemicals to the vein rather than injecting the chemicals directly into the vein.
308. The lethal injection chemicals travel through a tube in the wall for five feet before entering the condemned inmate.
309. Defendants could inject the chemicals directly into the vein if the executioner was inside the execution chamber and inserted the chemicals directly into the catheter.
310. Plunging the chemicals through a tube connected to a catheter rather than injecting the chemicals directly into the vein increases the risk that the condemned inmate will suffer unnecessary pain during his execution.
311. How fast the lethal injection chemicals are pushed through the plunger into the tube impacts whether the chemical will get into a person’s vein.
312. How fast the lethal injection chemicals are pushed through the plunger into the tube impacts how long it will take for a chemical to take effect and how quickly that effect will wear off.
313. The executioner is not trained in how fast to push the plunger. 314. The executioner is not instructed on how fast to push the plunger. 315. The package inserts and labels on the lethal injection chemicals do not say how fast to push the plunger.
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316. There is a high risk that the executioner may push the lethal injection chemicals into Plaintiff too quickly or too slowly.
317. If the lethal injection chemicals are pushed into Plaintiff too quickly or too slowly, Plaintiff will suffer unnecessary pain.
318. Defendants use one size catheter to inject the lethal injection chemicals. 319. The size of the catheter used during lethal injections is different than the size standardly used in medical settings for drawing blood or inserting an I.V. 320. If too small a catheter is used during Plaintiff’s execution, the chemicals will not reach Plaintiffs’ bloodstream as quickly as they should. 321. Using too small a catheter creates an unnecessary risk that the injection of sodium thiopental will not prevent the inmate from feeling pain throughout the execution. B. Facts relevant to inserting an I.V. 322. Defendants plan to insert two I.V. lines into Plaintiff. 323. Different size catheters are used in medical proceedings depending on the height and weight of the patient and the size of the patient’s veins. 324. If the catheter is too large, the vein could blow out. 325. A blown vein means that the chemicals would be going into a part of the body other than the vein or not entering the body at all if it causes the I.V. to dislodge. 326. Injecting the lethal injection chemicals into a part of the body other than the vein would be extremely painful. 327. Injecting the lethal injection chemicals into a part of the body other than the vein would prevent the chemicals from having the desired effect.
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328. Injecting sodium thiopental into a part of the body other than the vein means that the thiopental would not render a person unconscious.
329. Defendants use only one size catheter during lethal injections. 330. Defendants do not take into consideration the condemned inmate’s weight, height, or the size of the inmate’s veins in determining what size catheter to use during the inmate’s execution. 331. The size of the catheter used by Defendants during lethal injections is different from the size most commonly used when drawing blood or inserting an I.V. in a medical setting. 332. The size of the catheter used in lethal injections increases the likelihood that Defendants will not be able to insert an I.V. into Plaintiff’s veins. 333. Training and experience in drawing blood is different from training and experience in inserting a catheter. 334. The I.V. team has no experience in inserting a catheter. 335. The I.V. team has no training in inserting a catheter. 336. Defendants will spend up to 60 minutes attempting to insert the two I.V. lines. 337. The decision to spend up to 60 minutes inserting an I.V. is a change to Defendants’ execution procedures that occurred during the lethal injection litigation on behalf of Ralph Baze and Thomas Bowling. 338. Defendant Rees made the decision to require the execution team to attempt to insert the I.V. for 60 minutes. 339. Defendant Rees did not consult any medical professionals concerning attempting to insert an I.V. for 60 minutes prior to requiring the execution team to spend 60 minutes attempting to insert an I.V.
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340. In Kentucky, doctors and nurses are not involved in obtaining venous access. 341. In Kentucky, doctors and nurses are not permitted to intervene if complications arise from attempting to obtain venous access. 342. Defendants may attempt to insert an I.V. into the groin. 343. Inserting an I.V in the groin creates an unnecessary risk of pain and suffering. 344. Inserting an I.V. in the groin mutilates the body. 345. Inserting an I.V. in the groin violates the dignity of man. 346. Defendants have stated that if they are unable to insert an I.V. after 60 minutes, they will ask Defendant Fletcher to call off the execution. 347. Defendants have not declared what they will do if Defendant Fletcher refuses to call off the execution. 348. If Defendant Fletcher refuses to call off the execution, Defendants may use a cut down procedure to insert an I.V. into Plaintiff during his execution. 349. If Defendant Fletcher calls off the execution, Defendants will practice and attempt the same process of inserting a needle into Plaintiff. 350. This cycle of calling off Plaintiff’s execution, practicing inserting I.V.’s, rescheduling Plaintiff’s execution, and performing the same method of inserting an I.V. will continue repeatedly with no likelihood that Defendants will be able to insert an I.V. into Plaintiff. 351. The likelihood that a problem will arise inserting an I.V. needle is great because Defendants had difficulty inserting an I.V. needle in the only lethal injection execution they carried out, and because Plaintiff has bad veins. 352. In executing Edward Harper on May 25, 1999, it took Defendants ten minutes to access his veins.
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353. The difficulty accessing Edward Harper’s vein during his execution in 1999 was an unanticipated problem.
354. Similarly, Ohio’s difficulty accessing the veins of Joseph Clark on May 2, 2006 was an unanticipated problem.
355. It took the execution team more than twenty minutes to insert an I.V. in Clark’s vein.
356. When Clark’s vein collapsed, it took the execution team approximately 40 additional minutes to reinsert an I.V. into Clark’s vein.
357. Throughout the attempts to insert an I.V. and the injections of the chemicals, Clark was heard moaning and groaning in pain.
358. It is likely that Defendants will have difficulty inserting an I.V. into Plaintiff during his execution.
359. If veins or blood vessels blow during an execution, the chemicals will not have the desired effect.
360. If the chemicals do not remain in Plaintiff’s veins, Plaintiff will suffer an excruciatingly painful death.
361. It should only take two to three minutes to insert an I.V. 362. Well before 20 minutes of attempting to insert an I.V. has elapsed, the inmate will experience a great deal of pain and discomfort. 363. After 20 minutes of attempting to insert an I.V., the I.V. team will have exhausted all available locations to insert a needle. 364. Attempting to insert a needle for 60 minutes mutilates the body in violation of the Eighth Amendment to the United States Constitution.
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365. Attempting to insert a needle for 60 minutes is excessive in violation of the Eighth Amendment to the United States Constitution.
366. Attempting to insert a needle for 60 minutes is unnecessarily painful in violation of the Eighth Amendment to the United States Constitution.
367. Subjecting Slaughter to the possibility of multiple attempts to execute him causes unnecessary psychological suffering, in violation of the Eighth Amendment to the United States Constitution.
C. Facts relevant to Defendants’ inadequate equipment and personnel for maintaining life if a stay of execution is granted after the first or second chemical is administered. 368. Life can be maintained after 3 grams of sodium thiopental has been injected into a person. 369. Maintaining life after an injection of 3 grams of sodium thiopental would not be difficult if medical personnel certified in cardiac life support are present at the execution chamber and provided with the proper equipment. 370. Life can be maintained after the administration of pancuronium bromide during lethal injections. 371. Maintaining life after an injection of pancuronium bromide would not be difficult if medical personnel certified in cardiac life support are present at the execution chamber and provided with the proper equipment. 372. There are chemicals that will stop the heart, but are easier to reverse than potassium chloride. 373. EMT’s, phlebotomists, and doctors of general medicine are not trained in how to reverse the effects of sodium thiopental or pancuronium bromide.
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374. No member of Defendants’ execution team is adequately trained in reversing the effects of sodium thiopental or pancuronium bromide.
375. No doctor or medical professional is present inside the execution chamber to reverse the effects of sodium thiopental or pancuronium bromide.
376. Having a medical professional trained in how to reverse the effects of sodium thiopental and pancuronium bromide physically located in the execution chamber is essential to reversing the effects of the chemical before death occurs.
377. If a stay of execution is granted after sodium thiopental or pancuronium bromide is administered, Defendants have an obligation to take measures to maintain the life of the condemned inmate.
378. During lethal injection litigation on behalf of Ralph Baze and Thomas Bowling, Defendants created a one page document on the duration of onset of the chemicals, and how to reverse the effects of the lethal injection chemicals.
379. This one page document is what Defendants are relying on in determining how to reverse the effects of the lethal injection chemicals.
380. This one page document is incorrect on how to reverse the effects of the lethal injection chemicals.
381. This one page document instructs Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemicals that could cause the inmate’s death.
382. This one page document instructs Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemicals that would not reverse the effects of the lethal injection chemicals.
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383. This one page document fails to instruct Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemical that are absolutely necessary to reverse the effects of the lethal injection chemicals.
384. Defendants have a “crash cart” available purportedly to maintain life if a stay of execution is granted after sodium thiopental or pancuronium bromide is administered.
385. Defendants’ crash cart does not have all the chemicals listed on Middendorf’s one page document.
386. Defendant Haas designates the person who will operate the crash cart. 387. For the previously scheduled execution of Thomas Clyde Bowling, Defendant Haas was the individual who would operate the crash cart. 388. Defendant Haas is the Medical Director for the Department of Corrections. 389. Defendant Haas has not worked in an emergency medical setting since medical school. 390. Defendant Haas is a practicing psychiatrist. 391. Defendant Haas has not treated patients in many years. 392. Defendant Haas is not adequately trained in maintaining life after sodium thiopental or pancuronium bromide has been injected into a person. 393. No medical professional employed by the Kentucky Department of Corrections is adequately trained in maintaining life after sodium thiopental or pancuronium bromide has been injected into a person. 394. The crash cart Defendants have available at the Kentucky State Penitentiary is insufficient to maintain life after sodium thiopental or pancuronium bromide has been administered.
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395. Medications to increase blood pressure and contract the heart are necessary to maintain life after 3 grams of sodium thiopental has been administered.
396. Epinephrine is necessary to maintain life once 3 grams of sodium thiopental has been administered.
397. Once pancuronium bromide is administered, artifical ventilation is necessary to maintain life.
398. Artificial ventilation is not part of the equipment included on Defendants’ crash cart.
399. Insulin is also necessary to maintain life if a stay of execution is granted after the lethal injection chemicals have begun to flow through the condemned inmate’s body.
400. Insulin is not one of the drugs in Defendants’ crash cart. 401. Neostigmine is necessary to maintain life if a stay of execution is granted after the lethal injection chemicals have begun to flow through the condemned inmate’s body. 402. Neostigmine is not one of the drugs in Defendants’ crash cart. 403. Because Defendants’ crash cart does not contain the equipment necessary to maintain life after sodium thiopental or pancuronium bromide have been injected, Defendants’ crash cart does not meet the minimum constitutional requirements for maintaining life. 404. It would not be difficult for Defendants to obtain the necessary equipment for maintaining life after the first or second chemical has been administered. D. Facts Relevant to the Due Process and Fundamental Fairness Claim. 405. The Due Process clause prevents a person from being sentenced to death and executed upon information that he is barred from refuting.
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406. The Due Process clause requires notice and the opportunity to be heard prior to depriving a person of life, liberty, or property.
407. In Kentucky, inmates sentenced to death prior to March 31, 1998 are permitted to choose electrocution.
408. In order to make a knowing and intelligent choice between lethal injection and electrocution, death sentenced inmates must have an opportunity to review the entire execution procedures for both methods.
409. Defendants refuse to disclose the execution procedures that will be utilized in carrying out Plaintiff’s executions.
410. Due process and notions of fundamental fairness mandate that Defendants provide Plaintiffs with a copy of the execution procedures that will be used to extinguish their lives so that they can make an intelligent and knowing decision of a method of execution.
411. Due process and notions of fundamental fairness mandate that Defendants provide Plaintiffs with a copy of the execution procedures that will be used to extinguish their lives so that they can independently determine whether a particular aspect of the lethal injection or electrocution process may constitute cruel and unusual punishment, and to consult medical experts concerning that possibility.
E. Facts Relevant to the Electrocution Claim. 412. In Kentucky, condemned inmates sentenced prior to March 31, 1998, may choose between electrocution and lethal injection. 413. Plaintiff will not select a method of execution. 414. The default method of execution in Kentucky is lethal injection. 415. If lethal injection is found unconstitutional on its face, Kentucky law requires
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executions to be carried out by electrocution. 416. Execution by electrocution violates the Eighth Amendment of the United States
Constitution. 417. Nebraska is the only state in the country that utilizes electrocution as the sole
method of execution. 418. Warden Simpson, who is in charge of the prison where executions take place, has
never been involved in an execution by electrocution. 419. The Deputy Wardens at the Kentucky State Penitentiary have not participated in
an execution by electrocution. 420. Execution by electrocution will cause Plaintiff to consciously suffer an
excruciatingly painful and protracted death. 421. The American Veterinary Medicine Association bans electrocution in the
euthanasia of animals. 422. Electrocution causes death by asphyxia and cardiac arrest. 423. At least 2000 volts of electricity are necessary to cause heart death. 424. If heart death is not immediately achieved, execution by electrocution is
excruciatingly painful. 425. During an execution by electrocution, the body fluids heat to a temperature near
the boiling point of water. 426. Execution by electrocution causes third and fourth degree burns. 427. Third and fourth degree burns are extremely painful. 428. Consciousness is controlled by the brain. 429. The human skull insulates the brain from high voltage electricity.
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430. If high voltage electricity does not reach the brain, Plaintiff will remain conscious during his execution.
431. There are documented cases of condemned inmates who were alive after the first administration of electricity.
432. Condemned inmates’ hearts have beaten after the flow of electricity has stopped. 433. The continued beating of the heart after the cessation of the current indicates that unconsciousness was not instantaneous. 434. Respiratory movement has been observed in condemned inmates after the flow of electricity has stopped. 435. Respiratory movement indicates brain function and a lack of instant incapacitation. 436. Respiratory centers are located near deep pain centers. 437. Respiratory movement shows that the pain centers are not instantly destroyed. 438. If Plaintiff is conscious during his electrocution, he will suffer an excruciatingly painful death by asphyxia and cardiac arrest. 439. Unnecessary pain and suffering is inherent in executions by electrocution. 440. Botched electrocutions have occurred in the United States. 441. Execution by electrocution causes mutilation of the body including:
a) severe burns to the face and scalp; b) burns to the legs; c) burns to other parts of the body; d) discoloring of the skin; e) layers of skin pealing and melting away;
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f) contortion of the limbs, fingers, and toes; g) vomiting blood; h) vomiting drool; and, i) exploding body parts. 442. The Commonwealth of Kentucky has carried out one execution by electrocution since 1962, the electrocution of Harold McQueen in 1997. 443. According to the post mortem examination of Harold McQueen conducted by the Western Regional Medical Examiner, McQueen suffered the following types of injuries from the electrocution: a) a 1-2 mm ring like contact electrical burn encircling the parietal and frontal
scalp, gray-brown in color, which was bordered by a 5mm –1 cm rim of pallor, which was bordered by a lateral rim of up to 3cm. of subcutaneous congestion; b) a 17 x 6 cm. “irregular” contact electrical burn on the right calf just below the knee; c) partially charred skin with blistering; d) a 1-2 mm “C” shaped electrical burn on the right thigh; e) pressure marks from the electric chair straps present on the face, back of head, extremities, and abdomen; f) red-purple ecchymosis (escape of blood into the tissue) on the right bicep; g) “irregular” red-purple ecchymosis on the upper left forearm; and, h) a cluster of red-purple petechiae (hemmorrhage) on the dorsal right foot.
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444. Execution by electrocution violates the cruel and unusual punishment clause of the Eighth Amendment because electrocution:
a) causes unnecessary pain and suffering; b) creates a risk of unnecessary pain and suffering; c) mutilates the body; d) serves no legitimate purpose considering the existence of readily available and less painful alternatives; and, e) violates evolving standards of decency.
VI. EXHAUSTION OF ADMINISTRATIVE REMEDIES 445. Exhausting administrative remedies through a prison grievance policy is not required for this type of action because the injuries are prospective in the sense that the injuries will not occur until the execution takes place. 446. Bowling has not filed an institutional grievance. But based on the treatment of Moore and Leonard’s grievance, it is clear that administrative remedies are unavailable for the type of claims at issue in this case. With Moore, Defendants denied his grievance on the basis that it was not a grievable issue. See Grievance Rejection Notice for Brian Keith Moore attached to Brian Keith Moore’s complaint. Defendants did the same thing with Leonard’s grievance. Thus, Bowling need not exhaust administrative remedies because there can be no relief afforded through the institutional grievance process and thus no available administrative remedy to exhaust. 447. This Court allowed Leonard to intervene in this action without exhausting administrative remedies. Thus, the law of the case is that exhausting administrative remedies is not a requirement for intervening in this action.
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VII. CLAIMS FOR RELIEF Claim A - - administration of chemicals. 448. Defendants intend to extinguish Plaintiff’s life by administering chemicals in a manner that creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. Claim B - - three chemical combination. 449. Defendants intend to execute Plaintiff by injecting a combination of three chemicals - - sodium thiopental, pancuronium bromide, and potassium chloride - - that creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim C - - analgesic 450. Defendants’ failure to administer an analgesic during the lethal injection process creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim D - - sodium thiopental 451. Defendants’ use of sodium thiopental as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim E - - pancuronium bromide as lethal injection chemical 452. Defendants’ use of pancuronium bromide as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
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Claim F - - pancuronium bromide preventing public perception of effects of chemicals 453. The use of pancuronium bromide prevents public awareness necessary to any
change in consensus for or against lethal injection, in violation of the Eighth Amendment to the United States Constitution.
Claim G - - pancuronium bromide under standards of decency 454. The use of pancuronium bromide does not conform with evolving standards of decency, and thus, Defendants’ use of pancuronium bromide violates the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.
Claim H - - potassium chloride 455. Defendants’ use of potassium chloride as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim I - - deliberate indifference involving the chemicals 456. Defendants’ adoption of lethal injection chemicals on the basis that other states use the same chemicals, their failure to consult with medical professionals, and their failure to consider using alternative chemicals for lethal injections after they were put on notice of problems with the lethal injection chemicals and less painful alternative chemicals that could be used to carry out lethal injections constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM J - - monitoring to ensure that the inmate does not feel pain after sodium thiopental injected
457. Defendants’ failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide
49

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creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM K - - deliberate indifference for not monitoring to ensure that the inmate does not
feel pain after sodium thiopental injected 458. Defendants’ failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide creates constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM L - - monitoring to ensure that the inmate does not feel pain after pancuronium bromide is injected
459. Defendants’ failure to ensure that the condemned inmate is incapable of feeling pain after the injection of pancuronium bromide creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM M - - deliberate indifference for not monitoring to ensure that the inmate does not
feel pain after pancuronium bromide is injected 460. Defendants’ failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM N - - training of execution team 461. Defendants’ failure to provide adequate training in inserting I.V.’s, mixing lethal injection chemicals, injecting the lethal injection chemicals, and monitoring to ensure that the condemned inmate cannot feel pain creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM O - - inserting an I.V. in the groin
50

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462. Inserting an I.V. in the groin creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM P - - attempting to insert an I.V. for up to 60 minutes 463. Attempting to insert an I.V. for up to 60 minutes causes excessive pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM Q - - pain from attempting to insert I.V. for up to 60 minutes 464. Attempting to insert an I.V. for up to 60 minutes creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM R - - mutilation by attempting to insert I.V. for up to 60 minutes 465. Attempting to insert an I.V. for up to 60 minutes mutilates the body in violation of the Eighth Amendment to the United States Constitution.
CLAIM S- - not having a guaranteed method of obtaining venous access 466. Defendant’s failure to have a guaranteed means for accessing Plaintiff’s veins will cause Plaintiff unnecessary psychological suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM T- - deliberate indifference for not having guaranteed means of accessing
Plaintiff’s veins 467. Defendant’s failure to have a guaranteed means for accessing Plaintiff’s veins evinces deliberate indifference towards known medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM U - - maintaining life if a stay of execution is granted after the first or second chemical is administered.
468. Defendants’ failure to have the proper equipment, chemicals, and personnel available at the execution chamber in case a stay of execution is granted after the first or second
51

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chemical is administered constitutes the arbitrary deprivation of life in violation of the Eighth Amendment and violates substantive due process.
CLAIM V - - deliberate indifference involving maintaining life if a stay of execution is granted after the first or second chemical is administered.
469. Defendants’ failure to have the proper equipment, chemicals, and personnel available at the execution chamber in case a stay of execution is granted after the first or second chemical is administered is deliberate indifference towards known medical needs in violation of the Eight Amendment to the United States Constitution. CLAIM W - - deliberate indifference for lack of training in emergency cardiac life support
470. Defendants’ failure to adequately train its personnel in reversing the effects of the chemicals and in emergency cardiac life support is deliberate indifference towards known medical needs in violation of the Eighth Amendment to the United States Constitution because despite knowing that a stay of execution could be granted after the first or second chemical is administered, Defendants have done nothing to ensure that their execution team is adequately trained to maintain Plaintiff’s life if such a stay is granted.
CLAIM X - - deliberate indifference for not seeking medical advice on what equipment, chemicals, and personnel are necessary to maintain life after the first or second chemical is injected.
471. Defendants’ reliance on their general counsel, who is not a medical professional, to inform them of what chemicals, personnel, and equipment is necessary to maintain life after sodium thiopental or pancuronium bromide is injected, rather than consulting medical professionals experienced with these chemicals, is deliberate indifference towards known medical needs, in violation of the Eighth Amendment to the United States Constitution.
CLAIM Y - - Refusal to provide Plaintiff with execution protocols.
52

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472. Defendants’ refusal to provide Plaintiff with a complete copy of the electrocution and lethal injection execution protocols deprives Plaintiff of federal due process and fundamental fairness because it prevents them from making a meaningful choice between methods of execution as permitted under Kentucky law, and because it prevents them from reviewing the execution procedures to determine if additional constitutional violations may exist for which they are currently unaware.
CLAIM Z- - electrocution as mutilation. 473. Execution by electrocution is unconstitutional because it mutilates the body in violation of the Eighth Amendment to the United States Constitution.
CLAIM AA - - electrocution as inherent pain 474. Execution by electrocution violates the Eighth Amendment to the United States Constitution because pain is inherent in the method of execution.
CLAIM BB - - electrocution and the risk of pain 475. Execution by electrocution creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM CC - - electrocution violates evolving standards of decency 476. Execution by electrocution is contrary to evolving standards of decency and thus violates the Eighth Amendment to the United States Constitution.
VIII - - PRAYER FOR RELIEF 477. Plaintiff requests a temporary restraining order and a preliminary injunction barring Defendants from carrying out Plaintiff’s execution during this lawsuit. 478. Plaintiff requests a temporary restraining order and a preliminary injunction barring Defendants from carrying out Plaintiff’s execution in the manner they currently utilize
53

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for carrying out lethal injections. Plaintiff also seeks an order declaring that Defendants’ current chemicals and procedures for carrying out lethal injections violate the Eighth Amendment.
479. Plaintiff requests a temporary restraining order and preliminary injunction barring Defendants from carrying out his execution until they come up with a reasonable, humane means for guaranteeing venous access during his execution.
480. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that does not administer an analgesic. Plaintiff also seeks an order declaring that the failure to administer an analgesic during the lethal injection process violates the Eighth Amendment.
481. Plaintiff requests a temporary restraining order and a preliminary injunction barring Defendants from forcibly medicating Plaintiff with Valium prior to his execution. Plaintiffs also request an order declaring that administering Valium when using sodium thiopental violates the Eighth Amendment to the United States Constitution.
482. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that utilizes sodium thiopental. Plaintiff also seeks an order declaring that the use of sodium thiopental in lethal injections violates the Eighth Amendment to the United States Constitution.
483. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that utilizes pancuronium bromide. Plaintiff also seeks an order declaring that the use of pancuronium bromide in lethal injections violates the Eighth Amendment to the United States Constitution.
484. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that utilizes potassium
54

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chloride. Plaintiff also seeks an order declaring that the use of potassium chloride in lethal injections violates the Eighth Amendment to the United States Constitution.
485. Plaintiff seeks an order declaring that Defendants’ failure to consider using alternative chemicals in lethal injections constitutes deliberate indifference in violation of the Eighth Amendment to the United States Constitution.
486. Plaintiff requests a temporary restraining order and preliminary injunction barring Defendants from executing him by lethal injection unless Defendants inject the chemicals directly into his vein.
487. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiff’s execution without adequate procedures for monitoring for the ability to feel pain prior to and during the injections of pancuronium bromide and potassium chloride. Plaintiff also seeks an order declaring that Defendants’ failure to monitor for the ability to feel pain prior to and during the injections of pancuronium bromide and potassium chloride violates the Eighth Amendment to the United States Constitution.
488. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiff’s execution unless an anesthesiologist monitors for consciousness throughout the execution, and unless the anesthesiologist can take remedial measures to stop Plaintiff from feeling pain if the anesthesiologist determines that Plaintiff is in pain at any point during the execution.
489. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from inserting an I.V. in the groin and an order declaring that inserting an I.V. in the groin violates the Eighth Amendment to the United States Constitution.
55

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490. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from attempting to insert an I.V. into Plaintiff for more than 20 minutes and an order declaring that attempting to insert an I.V. for more than 20 minutes violates the Eighth Amendment to the United States Constitution.
491. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiff’s execution until Defendants have the proper equipment for maintaining life after sodium thiopental and pancuronium bromide have been injected, and until Defendants have properly trained individuals to operate that equipment. Plaintiff also seeks an order declaring that Defendants’ current equipment for maintaining life after the injection of sodium thiopental and pancuronium bromide is injected is insufficient to maintain life, and that their failure to have the proper equipment at the execution chamber violates the Eighth Amendment to the United States Constitution.
492. Plaintiff requests a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiff’s execution until they have been provided with a copy of the lethal injection and electrocution protocols and given adequate time to review the protocols. Plaintiff also seeks an order declaring that the failure to disclose the execution protocols violates due process and fundamental notions of fairness.
493. Plaintiff requests an order declaring that execution by electrocution violates the Eighth Amendment to the United States Constitution.
494. Plaintiff requests such further relief that this Court finds necessary.
56

Case 3:06-cv-00022-KKC Document 100-3 Filed 11/27/2006 Page 57 of 59

RESPECTFULLY SUBMITTED,

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

November 27, 2006.

COUNSEL FOR THOMAS CLYDE BOWLING

57

Case 3:06-cv-00022-KKC Document 100-3 Filed 11/27/2006 Page 58 of 59 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was electronically filed with the Court by using the CM/ECF system on this 27th day of November 2006 and that a copy of the foregoing document was personally delivered to Marguerite Thomas at 100 Fair Oaks Lane, Suite 301, Frankfort, Kentucky, 40601 on the same day.
/s/ David M. Barron _____________________________ Counsel for Thomas Clyde Bowling
58

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 Case 3:06-cv-00022-KKC Document 101-1 Filed 11/27/2006 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
FRANKFORT DIVISION

ELECTRONICALLY FILED

____________________________________

)

BRIAN KEITH MOORE,

)

)

and

)

)

JEFFREY LEONARD

)

Plaintiffs

)

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON, Warden

)

Kentucky State Penitentiary

)

Eddyville Kentucky,

)

)

SCOTT HAAS

)

Medical Director for the

)

Kentucky Department of Corrections )

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

)

and,

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

CIV. ACTION # 3:06-cv-22 CAPITAL CASE

RALPH BAZE’S EMERGENCY MOTION TO INTERVENE AS PLAINTIFF-INTERVENOR

Case 3:06-cv-00022-KKC Document 101-1 Filed 11/27/2006 Page 2 of 11
Under Fed. R. Civ. P. 24(b), Ralph Baze hereby moves this Court for leave to intervene as a plaintiff in this action. As the attached intervenor complaint establishes, Baze shares a common legal question with Brian Keith Moore and Jeffrey Leonard’s complaint: whether the implementation of Kentucky’s lethal injection procedure and chemicals will subject him to an unreasonable risk that he will suffer cruel and unusual punishment. Because this case is still in its early stages, allowing Baze to intervene will not unduly delay or prejudice the adjudication of the rights of the original parties. In addition, neither the failure to exhaust administrative remedies nor res judicata prevents this Court from considering Baze’s challenge to the chemicals and procedures used in Kentucky lethal injections. Thus, this Court should permit Baze to intervene in this action as it did with Leonard.
Because Baze will likely receive an execution date before Moore and Leonard, Baze requests expedited review of his motion to intervene.
The grounds for this Motion are set forth in the Memorandum below. MEMORANDUM IN SUPPORT
Ralph Baze should be permitted to intervene in this action because he is asserting an identical claim to that raised by Moore and Leonard and is raising his claim in a timely fashion. Fed.R.Civ.P. 24(b), permits intervention upon a timely application that establishes that the intervening party’s claim shares a question of law or fact with the original parties and intervening will not substantially impair the rights of the original parties to the pending action. Plaintiff Brian Keith Moore, a Kentucky death sentenced inmate, filed this action under 42 U.S.C. §1983 for violations and threatened violations of his right to be free from cruel and unusual punishment under the Eighth and Fourteenth
2

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Amendments to the United States Constitution. Four months later, this Court allowed Jeffrey Leonard to intervene. Baze is a true party in interest because he is similarly situated, asserts the same cause of action, and makes the same arguments as Plaintiffs Moore and Leonard, with the exception of compromised veins. See Intervenor Baze’s Proposed Complaint (attached).
Specifically, Baze argues that the Commonwealth’s current lethal injection procedures, including the chemicals Defendants plan to inject and the procedures for injecting the chemicals, are unconstitutional under both the Eighth and Fourteenth Amendments. Like Moore and Slaughter, he also challenges Defendants’ lack of adequate life-preserving equipment and personnel if a stay of execution is granted after the first or second chemical is injected, as well as the constitutionality of electrocution. Because these are the same claims presented by Moore and Leonard, the commonality requirement is satisfied. This motion is also being made in a timely fashion and will not unduly delay or prejudice the adjudication of the rights of the other parties. Finally, neither exhaustion of administrative remedies nor res judicata poses an obstacle to this Court’s authority to allow Baze to intervene.
A. Baze satisfies the requirements for permissive intervention laid out in Fed. R. Civ. P. 24(a) (2). Rule 24 (b) of the Federal Rules of Civil Procedure allows a party to intervene if three requirements are satisfied: 1) the application to intervene is timely; 2) the applicant’s claim or defense and the main action have a question of law or fact in common; and, 3) intervention will not unduly delay or prejudice the adjudication of the rights of the original parties. For the reasons discussed below, each of these requirements is satisfied.
3

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1. Baze’s application is timely. In determining whether Baze’s motion to intervene is timely, this Court should consider the extent to which this case has progressed and how quickly after the action was initiated Baze moved to intervene. Moore filed this action approximately nine months ago. At the end of August, this Court allowed Leonard to intervene. No action has occurred in this case since then. Currently, this case remains in its infancy as the pro se clerk’s office considers numerous discovery motions. Thus, the current status of this case will not be impacted by allowing Baze to intervene - - a request that he is making less than a week after the Kentucky Supreme Court decided his case, thereby removing any impediment to Baze joining this action. The expedience in which Baze has moved to intervene and the lack of progression of this case means that Baze’s motion to intervene is timely.
2. Baze’s claim and the main action have a question of law or fact in common.
As this Court recognized in permitting Leonard to intervene, the commonality requirement for permissive intervention may be satisfied where the legal question involved is the same, notwithstanding factual differences between the parties. Like Leonard, Baze shares a common legal question with Moore’s complaint: whether the implementation of Kentucky’s lethal injection procedure will subject him to an unreasonable risk that he will suffer cruel and unusual punishment and whether Kentucky’s life-saving equipment is sufficient to maintain life if a stay of execution is granted after the first or second lethal injection chemical is administered. Baze thus satisfies the commonality requirement for permissive intervention.
4

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3. Intervention by Baze will not unduly delay or prejudice the adjudication of the rights of the original parties.
Allowing Baze to intervene will not “unduly delay or prejudice the adjudication of the rights of the original parties.”1 This case remains in its early stages as this Court has yet to rule on numerous discovery motions. Admittedly, mandatory disclosures under Fed.R.Civ.P. 26, responses to request for production of documents, interrogatories, and admissions have been provided, but this should have no impact on this Court’s decision to allow Baze to intervene. Much of these initial discovery methods were undertaken prior to this Court’s ruling allowing Leonard to intervene, and Baze does not intend to file any additional discovery requests. Further, Baze will likely receive an execution date prior to Moore or Leonard. For these reasons, neither the current Plaintiffs nor the current Defendants will suffer any delay or prejudice from Baze intervening in this action. Rather, allowing Baze to intervene will further the interests of all parties and this Court by not forcing Baze to duplicate efforts by filing a separate lawsuit. Accordingly, the unduly delay and prejudice analysis for permissive intervention favors allowing Baze to intervene in this action.
B. Administrative Remedies Baze has not exhausted his administrative remedies. However, this should not affect this Court’s decision on his intervention for three reasons. First, exhausting administrative remedies is not a requirement to intervene. As this Court ruled in the June 13, 2006 order in Moore’s case, there is nothing suggesting that the Prison Litigation Reform Act overrules the Federal Rules of Civil Procedure. Thus, since the Federal Rules of Civil Procedure do not mention exhaustion of administrative remedies in the context of
1 Fed. R. Civ. P. 24(b).
5

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intervention, doing so is not a prerequisite to intervening in a lawsuit. Second, Baze is dealing with prospective injuries that cannot be remedied after they occur. Third, exhausting administrative remedies should be excused because there is no adequate corrective process for doing so. Both Moore and Leonard have filed a grievance with the prison. Their grievances were rejected as non-grievable because it involved a statute. Thus, there is no adequate process for grieving this claim through the inmate grievance system. If Baze filed a grievance, it would be treated in the same way. Thus, there is no relief that can be afforded through the administrative grievance process, and therefore there is no available administrative remedy to exhaust. Finally, this Court allowed Leonard to intervene before he exhausted administrative remedies. For these reasons, Baze should not be required to exhaust his administrative remedies in order to intervene in this action.
C. Res judicata does not prevent this Court from exercising jurisdiction. By prohibiting Baze from deposing or otherwise questioning the execution team, the state courts deprived Baze the opportunity to discover information that was necessary to fully prepare and litigate the issues concerning the chemicals and procedures Defendants intend to use to carry out his execution. This prevents the application of res judicata in this case. Res judicata does not apply where the losing party in the first decision did not have a full and fair opportunity to litigate the claim or issue.2 This includes situations where a plaintiff was denied sufficient discovery, which has the effect of burdening the
2 Allen v. McCurry, 449 U.S. 90 (1980).
6

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plaintiff’s ability to prepare his or her case.3 When “there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation,” redetermination of issues is warranted.4 Here, there are substantial reasons to doubt the quality, extensiveness, or fairness of the procedures used in the Kentucky state courts to adjudicate Baze’s lethal injection claims.
The state courts prohibited Baze from deposing or otherwise examining the execution team members. As a result, at the state court hearing, both Baze and the court were required to rely on representations made by counsel for Defendants and other individuals who neither participate in carrying out the execution nor are physically present during crucial stages of the execution process. These representations included statements about the qualifications and experience of the execution team, what happened in past executions, and what will happen at future executions. The representations also include the responsibilities of individual members of the execution team. Four days ago, the Kentucky Supreme Court upheld the lower court’s ruling. By doing so, the Kentucky Supreme Court made it clear that it was not going to require a full and fair opportunity to litigate the constitutionality of the chemicals and procedures Kentucky uses in lethal injections.
As recent lethal injection litigation in Missouri has proven, representations from attorneys and corrections personnel who are not on the execution team is no substitute for questioning the execution team members and can be the difference between prevailing and losing on a challenge to the chemicals and procedures used in lethal injections.
3 West v. Ruff, 961 F.2d 1064, 1066 (2d Cir. 1992) (citing the lack of sufficient discovery as one of the reasons why the plaintiff lacked a full and fair opportunity to litigate his claim in state court). 4 Montana v. United States, 440 U.S. 147, 164 n. 11 (1979).
7

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In Taylor v. Crawford,5 after hearing testimony from Dr. Heath and Dr. Dershwitz (two experts that testified in the state court lethal injection litigation), a federal district court judge in Missouri upheld Missouri’s lethal injection procedures and chemicals - the same chemicals that are used in Kentucky.6 On remand from the Eighth Circuit to conduct a more thorough hearing, a Missouri federal district court judge allowed interrogatories of members of the execution team and an anonymous deposition of one of the members of the execution team.7 The information learned from the Missouri execution team proved that the previously made representations about what would happen during an execution are not what were actually occurring.
At least some members of the execution team had not seen a written execution protocol and were not fully aware of their responsibilities.8 In addition, deviations from the protocol were occurring on a regular basis and members of the execution team were found to be not as qualified as the Missouri Department of Corrections had held them out to be.9 Thus, it quickly became clear that what was believed to be occurring during an execution that was considered constitutional by a Missouri federal court judge was merely a theoretical plan that was not taking place - - a fact that only became known because the judge allowed discovery of the execution team. Relying on the information obtained from the execution team members, the federal judge in Missouri ruled that Missouri’s lethal injection procedures create an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.10 Thus, a
5 No. 2:05-cv-04173 (W.D. Mo., order dated, June 26, 2006) (attached). 6 Id. at 2-3. 7 Id. at 4. 8 Id. at 8-10. 9 Id. 10 Id. at 13.
8

Case 3:06-cv-00022-KKC Document 101-1 Filed 11/27/2006 Page 9 of 11
constitutional procedure became unconstitutional because of information that was obtained only by examining the execution team. The same thing could happen here if Baze is given the opportunity to examine the execution team members, which has also permitted in California, Louisiana, and Maryland.
In addition to not being able to examine the members of the execution team, recent information out of California and North Carolina showing that the testimony of Dr. Dershwitz - - the only expert that testified on behalf of Defendants in the state litigation - was misleading, inaccurate, and possibly intentionally so casts substantial doubt on the reliability of Dr. Dershwitz’s testimony,11 the only medical testimony that contradicted the evidence Baze presented in state court. The recent developments which discredit Dr. Dershwitz’ testimony and the state court’s refusal to allow Baze to depose or otherwise examine the execution team members create “a reason to doubt the quality, extensiveness, or fairness of procedures followed in the prior litigation.”12 As a result, the state court’s adjudication of Baze’s claims was “inadequate for ascertainment of the truth,” making it this Court’s “duty to disregard the state findings and take evidence anew.”13
11 As discussed in Bowling’s intervenor complaint, toxicology analysis results from individual executed in North Carolina after the state court trial in Bowling’s lethal injection case that were conducted to prove Dr. Dershwitz’s conclusions have done the exact opposite by proving that the amount of sodium thiopental in the condemned inmates body was not enough to prevent the inmate from feeling pain. In addition, California execution logs prove that inmates do not cease breathing within a minute of the injection of sodium thiopental as Dr. Dershwitz alleges. 12 Montana v. United States, 440 U.S. at 164 n.11. 13 Townsend v. Sain, 372 U.S. 239, 316 (1963) (holding that where a hearing is “seriously inadequate for ascertainment of the truth, it is the federal judge’s duty to disregard the state findings and take evidence anew”).
9

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Conclusion The three requirements for permissive intervention - - a timely request to intervene in a case where the intervenor’s claim and the main action share a question of law or fact and intervention will not unduly delay or prejudice the rights of the parties - are satisfied here. Baze’s motion to intervene is being filed four days after the Kentucky Supreme Court affirmed the denial of his claim, thereby affirming the fact that he would not receive a full and fair opportunity to litigate his claims in state court. As this Court recognized in allowing Leonard to intervene, Baze’s complaint shares a common legal action with Moore’s complaint. And, because this case remains in its early stages with discovery issues not having been resolved and no action beyond discovery have taken place, none of the parties to the main action will be prejudiced by allowing Baze to intervene. Thus, the requirements for permissive intervention are satisfied. The failure to exhaust administrative remedies has no impact on this Court’s authority to allow Baze to intervene. Because Baze was not allowed to depose or otherwise question the execution team members and new evidence casts doubt on the only medical testimony presented by Defendants in state court, res judicata also does not bar this Court from allowing Baze to intervene in this case. Thus, Baze requests that this Court grant his motion for permissive intervention under Fed.R.Civ.P. 24(b).
10

Case 3:06-cv-00022-KKC Document 101-1 Filed 11/27/2006 Page 11 of 11

RESPECTFULLY SUBMITTED,

November 27, 2006.

/s/ David M. Barron __________________________ DAVID M. BARRON JOHN ANTHONY PALOMBI Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
COUNSEL FOR RALPH BAZE

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was electronically filed with the Court by using the CM/ECF system on this 27th day of November 2006 and that a copy of the foregoing document was personally delivered to Marguerite Thomas at 100 Fair Oaks Lane, Suite 301, Frankfort, Kentucky, 40601 on the same day.
/s/ David M. Barron _____________________________ Counsel for Ralph Baze

11

 
 Case 3:06-cv-00022-KKC Document 119 Filed 12/08/2006 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
FRANKFORT DIVISION

** CAPITAL CASE **

CIVIL ACTION NO. 06-CV-22-KKC

BRIAN KEITH MOORE

VS:

O R D E R

JOHN D. REES, ET AL.

PLAINTIFF DEFENDANTS

The lead plaintiff in this case, death row inmate Brian Keith Moore, filed the present action on April 19, 2006, alleging that carrying out his death sentence through application of Kentucky’s lethal injection procedure would violate the Eighth Amendment’s prohibition against “Cruel and Unusual Punishments.” Kentucky death row inmate Jeffrey Leonard was permitted to intervene as a plaintiff by Order dated August 25, 2006.
On November 22, 2006, the Kentucky Supreme Court affirmed the determination of the Franklin Circuit Court after a full trial on the merits that, as applied to death row inmates Thomas Clyde Bowling and Ralph Baze, Kentucky’s method of lethal injection to carry out their death sentences did not violate the Eighth Amendment. Baze v. Rees, Ky., 2006 WL 3386544 (2006).
Four days after losing their appeal before the Kentucky Supreme Court, Baze and Bowling filed motions in this case seeking to intervene as plaintiffs on an emergency basis, seeking to assert the same Eighth Amendment claims they pressed in the state courts [Record Nos. 100, 101]. Plaintiffs Moore and Leonard have filed responses indicating they have no objection [Record Nos. 102, 103, 105, 107]. Defendants have filed a response asserting that

Case 3:06-cv-00022-KKC Document 119 Filed 12/08/2006 Page 2 of 3
Baze’s and Bowling’s claims are barred under Kentucky principles of claim preclusion and issue preclusion, and that this Court must afford full faith and credit to the judgment of the Franklin Circuit Court under 28 U.S.C. §1738. Defendants also contend that the proposed interveners’ motion is untimely and therefore does not satisfy the requirements of Rule 24(b) [Record No. 112]. Baze and Bowling reply that their motion is timely. They further assert that the claims they wish to present herein are not barred by claim preclusion because the Franklin Circuit Court’s refusal to let them depose members of the execution team prevented them from fully and fairly presenting their claims in that litigation [Record No. 113].
While the briefing provided by the parties is instructive, the parties have not addressed whether the Rooker-Feldman doctrine may apply under these circumstances. See Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005). Therefore, to assist the Court in ruling on the pending motions to intervene, and because there is insufficient evidence to indicate that the motions must be decided on an emergency basis, the parties will be directed to file supplemental briefs on this issue.
Accordingly, it is hereby ORDERED as follows: (1) Proposed interveners Baze and Bowling shall file, on or before January 5, 2007, a single, combined supplemental memorandum, not to exceed 20 pages, addressing solely any potential application of the Rooker-Feldman doctrine. (2) The defendants shall file, on or before January 22, 2007, a supplemental memorandum in response, not to exceed 20 pages, addressing solely this issue.
-2-

Case 3:06-cv-00022-KKC Document 119 Filed 12/08/2006 Page 3 of 3 (3) No other or further briefing shall be permitted unless directed by Order of the
Court. The matter will stand submitted for decision upon filing of the defendants’ response. Dated this 8th day of December, 2006.
-3-

 
 Case 3:06-cv-00022-KKC Document 137-1 Filed 03/19/2007 Page 1 of 7

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

ELECTRONICALLY FILED

____________________________________

)

BRIAN KEITH MOORE ET AL.,

)

)

and

)

)

JEFFREY LEONARD

)

Plaintiffs

)

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON, Warden

)

Kentucky State Penitentiary

)

Eddyville Kentucky,

)

)

SCOTT HAAS

)

Medical Director for the

)

Kentucky Department of Corrections )

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

)

and,

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

CIV. ACTION # 3:06-cv-22 CAPITAL CASE

ROGER DALE EPPERSON’S MOTION TO INTERVENE AS PLAINTIFF-INTERVENOR

Case 3:06-cv-00022-KKC Document 137-1 Filed 03/19/2007 Page 2 of 7
Under Fed. R. Civ. P. 24(b), Ralph Dale Epperson hereby moves this Court for leave to intervene as a plaintiff in this action. As the attached intervenor complaint establishes, Epperson shares a common legal question with Brian Keith Moore and Jeffrey Leonard’s complaint: whether the implementation of Kentucky’s lethal injection procedure and chemicals will subject him to an unreasonable risk that he will suffer cruel and unusual punishment. Because this case is still in its early stages, allowing Epperson to intervene will not unduly delay or prejudice the adjudication of the rights of the original parties. Thus, this Court should permit Epperson to intervene in this action as it did with Leonard.
The grounds for this Motion are set forth in the Memorandum below. MEMORANDUM IN SUPPORT
Roger Dale Epperson should be permitted to intervene in this action because he is asserting an identical claim to that raised by Moore and Leonard and is raising his claim in a timely fashion. Fed.R.Civ.P. 24(b), permits intervention upon a timely application that establishes that the intervening party’s claim shares a question of law or fact with the original parties and intervening will not substantially impair the rights of the original parties to the pending action. Plaintiff Brian Keith Moore, a Kentucky death sentenced inmate, filed this action under 42 U.S.C. §1983 for violations and threatened violations of his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Four months later, this Court allowed Jeffrey Leonard to intervene. Epperson is a true party in interest because he is similarly situated, asserts the same cause of action, and makes the same arguments as Plaintiffs
2

Case 3:06-cv-00022-KKC Document 137-1 Filed 03/19/2007 Page 3 of 7
Moore and Leonard, with the exception of compromised veins. See Intervenor Epperson’s Proposed Complaint (attached).
Specifically, Epperson argues that the Commonwealth’s current lethal injection procedures, including the chemicals Defendants plan to inject and the procedures for injecting the chemicals, are unconstitutional under both the Eighth and Fourteenth Amendments. Like Moore and Leonard, he also challenges Defendants’ lack of adequate life-preserving equipment and personnel if a stay of execution is granted after the first or second chemical is injected, as well as the constitutionality of electrocution. Because these are the same claims presented by Moore and Leonard, the commonality requirement is satisfied. This motion is also being made in a timely fashion and will not unduly delay or prejudice the adjudication of the rights of the other parties.
A. Epperson satisfies the requirements for permissive intervention laid out in Fed. R. Civ. P. 24(a) (2). Rule 24 (b) of the Federal Rules of Civil Procedure allows a party to intervene if three requirements are satisfied: 1) the application to intervene is timely; 2) the applicant’s claim or defense and the main action have a question of law or fact in common; and, 3) intervention will not unduly delay or prejudice the adjudication of the rights of the original parties. For the reasons discussed below, each of these requirements is satisfied.
3

Case 3:06-cv-00022-KKC Document 137-1 Filed 03/19/2007 Page 4 of 7
1. Epperson’s application is timely. In determining whether Epperson’s motion to intervene is timely, this Court should consider the extent to which this case has progressed, how quickly after the action was initiated Epperson moved to intervene, and the timing of Epperson’s motion to intervene. Epperson’s direct appeal became final today (March 19, 2007) upon the denial of a petition for a writ of certiorari. Moore filed this action approximately eleven months ago. At the end of August 2006, this Court allowed Leonard to intervene. No action has occurred in this case since then. Currently, this case remains in its infancy as the pro se clerk’s office considers numerous discovery motions. Thus, the current status of this case will not be impacted by allowing Epperson to intervene. The expedience in which Epperson has moved to intervene (the day that the issue became ripe for him) and the lack of progression of this case means that Epperson’s motion to intervene is timely.
2. Epperson’s claim and the main action have a question of law or fact in common.
As this Court recognized in permitting Leonard to intervene, the commonality requirement for permissive intervention may be satisfied where the legal question involved is the same, notwithstanding factual differences between the parties. Like Leonard, Epperson shares a common legal question with Moore’s complaint: whether the implementation of Kentucky’s lethal injection procedure will subject him to an unreasonable risk that he will suffer cruel and unusual punishment and whether Kentucky’s life-saving equipment is sufficient to maintain life if a stay of execution is granted after the first or second lethal injection chemical is administered. Epperson thus satisfies the commonality requirement for permissive intervention.
4

Case 3:06-cv-00022-KKC Document 137-1 Filed 03/19/2007 Page 5 of 7
3. Intervention by Epperson will not unduly delay or prejudice the adjudication of the rights of the original parties.
Allowing Epperson to intervene will not “unduly delay or prejudice the adjudication of the rights of the original parties.”1 This case remains in its early stages as this Court has yet to rule on numerous discovery motions. Admittedly, mandatory disclosures (under Fed.R.Civ.P. 26), responses to request for production of documents, interrogatories, and admissions have been provided, but this should have no impact on this Court’s decision to allow Epperson to intervene. Much of these initial discovery methods were undertaken prior to this Court’s ruling allowing Leonard to intervene, and Epperson does not intend to file any additional discovery requests. For these reasons, neither the current Plaintiffs nor the current Defendants will suffer any delay or prejudice from Epperson intervening in this action. Rather, allowing Epperson to intervene will further the interests of all parties and this Court by not forcing Epperson to duplicate efforts by filing a separate lawsuit and by not requiring this Court to decide two cases with the same issues. Accordingly, the unduly delay and prejudice analysis for permissive intervention favors allowing Epperson to intervene in this action.
Conclusion The three requirements for permissive intervention - - a timely request to intervene in a case where the intervenor’s claim and the main action share a question of law or fact and intervention will not unduly delay or prejudice the rights of the parties - are satisfied here. Epperson’s motion to intervene is being filed four days after the Kentucky Supreme Court affirmed the denial of his claim, thereby affirming the fact that he would not receive a full and fair opportunity to litigate his claims in state court. As
1 Fed. R. Civ. P. 24(b).
5

Case 3:06-cv-00022-KKC Document 137-1 Filed 03/19/2007 Page 6 of 7

this Court recognized in allowing Leonard to intervene, Epperson’s complaint shares a common legal action with Moore’s complaint. And, because this case remains in its early stages with discovery issues not having been resolved and no action beyond discovery have taken place, none of the parties to the main action will be prejudiced by allowing Epperson to intervene. Thus, the requirements for permissive intervention are satisfied, so this Court should grant his motion for permissive intervention under Fed.R.Civ.P. 24(b).

RESPECTFULLY SUBMITTED,

March 19, 2007.

/s/ David M. Barron __________________________ DAVID M. BARRON Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
COUNSEL FOR ROGER DALE EPPERSON

6

Case 3:06-cv-00022-KKC Document 137-1 Filed 03/19/2007 Page 7 of 7 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was electronically filed with the Court by using the CM/ECF system on this 19th day of March 2007 and that a copy of the foregoing document was mailed first class postage prepaid to Ian Sonego and David Smith, Assistant Attorneys General, 1024 Capital Center Drive, Frankfort, Kentucky, on the same day.
/s/ David M. Barron _____________________________ Counsel for Roger Dale Epperson
7

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 1 of 62

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

ELECTRONICALLY FILED

____________________________________

)

ROGER DALE EPPERSON

)

)

Plaintiff

)

CIV. ACTION # 3:06-cv-222

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON,

)

Warden, Kentucky State

)

Penitentiary, Eddyville Kentucky, )

)

SCOTT HAAS

)

Medical Director for the

)

Kentucky Department of Corrections )

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

)

and,

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

CAPITAL CASE

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 2 of 62
I. NATURE OF ACTION1 1. This action is brought pursuant to 42 U.S.C. §1983 for violations and threatened violations of Plaintiff’s right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks equitable and injunctive relief. 2. Defendants’ current method of lethal injection is unconstitutional because there is an unnecessary risk that Plaintiff will be tortured to death. No government within the United States may intentionally or negligently use an excruciatingly painful and unreliable procedure or chemical for carrying out executions, particularly when readily available alternative means of carrying out the sentence exist. 3. Kentucky’s alternative method of execution for individuals sentenced to death prior to 1998, electrocution, violates the Eighth Amendment of the United States Constitution. 4. Kentucky uses three chemicals to carry out lethal injections: sodium thiopental, pancuronium bromide, and potassium chloride. 5. Each of Defendants’ lethal injection chemicals poses an unnecessary risk of pain and suffering. 6. Defendants’ execution procedures fail to ensure that personnel responsible for anesthesia and monitoring of lethal injection are properly trained and qualified. 7. Monitoring to ensure that the inmate is in the appropriate plane of consciousness to prevent the inmate from feeling pain is essential to ensuring that the condemned inmate does not feel pain during an execution.
1 Plaintiff incorporates by reference the memorandum of law and exhibits filed by Brian Keith Moore in this case.
2

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 3 of 62
8. Defendants’ protocol lacks standards for administering lethal injection and monitoring consciousness.
9. Defendants’ fail to monitor for the appropriate plane of consciousness that prevents the condemned inmate from feeling pain during the execution by lethal injection.
10. Defendants’ execution procedures fail to provide for identification of and addressing of contingencies that may occur during an execution, in event of problems.
11. Kentucky’s failure to have adequate equipment to maintain life if a last minute stay is granted after the first or second chemical is administered and failure to have adequately trained individuals to operate the equipment violates the Eighth Amendment to the United States Constitution and federal due process.
12. Plaintiff is not alleging that Defendants could never execute him. Rather, he asserts that any execution must comport with the United States Constitution. Plaintiff could be executed if: 1) no separate legal challenge reverses his conviction or death sentence; 2) Plaintiff does not receive executive clemency; 3) Defendants design a constitutionally acceptable method for executing Plaintiff, which can include lethal injection if done in a manner that does not pose an unnecessary risk of pain and suffering, and which monitors for consciousness; and, 4) Defendants maintain proper equipment at the execution chamber for maintaining life if a stay of execution is granted after the first or second chemical is administered, and have adequately trained individuals at the execution chamber to operate the equipment and render life saving measures.
3

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 4 of 62
13. Plaintiff seeks a temporary restraining order and preliminary injunction preventing Defendants from carrying out his execution until Defendants come up with a means of guaranteeing venous access.
14. Plaintiff seeks a temporary restraining order and preliminary injunction preventing Defendants from carrying out his execution by the means currently employed for carrying out an execution by lethal injection in the Commonwealth of Kentucky.
15. Plaintiff does not claim that lethal injection is per se unconstitutional, but, instead, seeks an Order declaring that Defendants’ current chemicals and means for conducting an execution by lethal injection violates the Eighth and Fourteenth Amendments to the United States Constitution.
16. Plaintiff also seeks an Order that Defendants’ failure to have proper drugs and equipment for maintaining life if a last minute stay of execution is granted and Defendants’ failure to have adequately trained personnel at the death chamber to operate the life-maintaining equipment violate due process and the Eighth Amendment to the United States Constitution.
17. Plaintiff seeks an Order declaring that electrocution violates the Eighth and Fourteenth Amendments.
II. PLAINTIFF 18. Plaintiff Roger Dale Epperson is a United States citizen and a resident of the Commonwealth of Kentucky. He is currently a death sentenced inmate under the supervision of the Kentucky Department of Corrections. He is held at the Kentucky State Penitentiary in Eddyville, Kentucky. 19. The United States Supreme Court denied Roger Epperson’s petition for
4

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 5 of 62
writ of certiorari from the denial of his direct appeal on March 19, 2007. III. DEFENDANTS
20. Defendant John D. Rees is the Commissioner of the Kentucky Department of Corrections
21. Defendant Thomas Simpson is the Warden of the Kentucky State Penitentiary, where Plaintiff’s execution will occur.
22. Defendant Scott Haas is the Medical Director for Kentucky Department of Corrections. He is responsible for designating a physician to examine Plaintiff in the weeks leading up to his execution, and for designating a physician to be present at the execution facility to render medical treatment if a stay of execution is granted after the first and/or second chemical is administered.
23. Defendant Ernie Fletcher is the Governor of Kentucky. He is responsible for scheduling Plaintiff’s execution and has the authority to call off an execution if a suitable vein in Plaintiff’s body cannot be accessed within 60 minutes of attempting peripheral venous access.
24. Defendants Unknown Executioners are employed by or under contract with the Kentucky Department of Corrections, to make preparations for, and carry out, Plaintiff’s execution. They include, but are not limited to, physicians, emergency medical technicians, phlebotomists, physician’s assistants, the execution team, the executioner, the I.V. team, and the team leader. Plaintiff does not yet know their identities, and Defendants will not reveal the identities of these persons.
5

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 6 of 62
IV. JURISDICTION AND VENUE 25. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights violation), 1651 (all-writs), 2201 (declaratory relief), and 2202 (further relief). 26. This action arises under the Eighth and Fourteenth Amendments of the United States Constitution, and 42 U.S.C. § 1983. 27. Venue is proper under 28 U.S.C. § 1391. All Defendants reside in the same state. The principal place of business for Defendant Rees, Defendant Fletcher, and Defendant Haas is Frankfort, Kentucky. 28. All Defendants are state actors acting under color of state law.
V. FACTS 29. Defendants are responsible for carrying out executions in Kentucky. 30. Under the Eighth Amendment to the United States Constitution, cruel and unusual punishment claims involving a particular means of effectuating a sentence of death are analyzed under a six prong test in which proof of any one prong establishes an Eighth Amendment violation:
a) the physical pain inflicted is excessive in light of readily available alternatives;
b) the risk of pain is more than the Constitution tolerates; c) the risk of pain and suffering is unnecessary in light of available alternatives; d) mutilation of the body during the execution; e) unnecessary psychological suffering;
6

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 7 of 62
f) the particular means of effectuating the sentence of death violates evolving standards of decency.
31. Defendant Rees worked with the Oklahoma Department of Corrections from July 1976 until December 1980.
32. The first state to adopt lethal injection was Oklahoma in 1977. 33. Defendant Rees was involved in creating the policies and procedures for carrying out lethal injections in Oklahoma. 34. In 1978, Oklahoma drafted the first lethal injection protocol in the country. 35. Defendant Rees was involved in drafting Oklahoma’s 1978 lethal injection protocol. 36. Prior to adopting the 1978 protocol, Oklahoma neither conducted nor consulted any medical or scientific studies in deciding what chemicals to use or the quantities of the chemicals to administer. 37. Oklahoma’s original execution protocol called for the administration of a short acting barbiturate in conjunction with a paralytic agent. Potassium chloride was mentioned as a possible paralytic agent. 38. Potassium chloride is not a paralytic agent. 39. The first lethal injection execution in the United States was carried out in Texas in 1982 by the administration of sodium thiopental, pancuronium bromide, and potassium chloride.
7

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 8 of 62
40. Prior to the first lethal injection in 1982, no state conducted or consulted any medical or scientific studies in determining which chemicals to use for lethal injections or in what quantity to administer them.
41. No state has conducted or consulted any medical or scientific studies on sodium thiopental, pancuronium bromide, or potassium chloride during lethal injections, or into the quantity of each drug to administer.
42. Defendants intend to execute Plaintiff by administering the following drugs in the following manner:
a) sodium thiopental (also known as sodium pentothal) (3 grams); b) pancuronium bromide (also referred to as pavulon) (50 milligrams);and, c) potassium chloride (240 milliequivalents) The drugs are injected in succession, one after the other. Saline solution is injected in between each drug. 43. Defendants use these three chemicals because these chemicals were used by other states at the time Kentucky created its first lethal injection protocol. 44. Defendants neither conducted nor relied upon any medical or scientific studies in determining to use these chemicals. 45. Defendants neither conducted nor relied upon any medical or scientific studies in determining the quantity of chemicals to administer. 46. In deciding which chemicals to use in Kentucky lethal injections, Defendants did not consult with any anesthesiologists, doctors, or other medically trained personnel.
8

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 9 of 62
47. During state-court lethal injection litigation on behalf of Ralph Baze and Thomas Clyde Bowling, Defendants changed their protocol to increase the dose of sodium thiopental from 2 grams to 3 grams. This change was made in late 2004.
48. The decision to increase the amount of sodium thiopental was made by Defendant Rees.
49. Defendant Rees has no medical training. 50. Prior to increasing the amount of thiopental from 2 grams to 3 grams, Defendant Rees did not consult any medical professionals about increasing the dose of thiopental. 51. Defendant Rees conducted no medical or scientific studies on the effects of the lethal injection chemicals before increasing the amount of thiopental from 2 grams to 3 grams. 52. Defendant Rees did not consult any anesthesiologists or medically trained person about increasing the amount of thiopental before increasing the dose from 2 grams to 3 grams. 53. Prior to April 18, 2005, Defendant Rees thought the directions on the lethal injection chemical bottles would say how much of the chemical to administer. 54. The package inserts and labels on the lethal injection chemicals do not say how much of the chemicals to administer during a lethal injection. 55. Other than the fact that sodium thiopental, pancuronium bromide, and potassium chloride are used in other states, prior to April 18, 2005, Defendant Rees had no idea why these three chemicals are used in Kentucky lethal injections.
9

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 10 of 62
56. Defendant Rees currently has no knowledge why these three chemicals are used in Kentucky lethal injections.
57. Prior to April 18, 2005, Defendant Rees did not know why Kentucky lethal injections used three chemicals instead of one or two.
58. Defendant Rees still does not know why Kentucky lethal injections used three chemicals instead of one or two.
59. Until April 18, 2005, Defendants thought that all states that carry out lethal injection administer sodium thiopental, pancuronium bromide, and potassium chloride.
60. New Jersey’s lethal injection protocol does not use pancuronium bromide. Instead, they administer only sodium thiopental and potassium chloride.
61. Prior to April 18, 2005, Defendants were unaware that New Jersey uses only two chemicals: sodium thiopental and potassium chloride to carry out lethal injections.
62. Defendants have not consulted with the New Jersey Department of Corrections about why they do not use pancuronium bromide or any other neuromuscular blocking agent in lethal injections.
63. Defendants have not considered adopting New Jersey’s chemical combination (sodium thiopental and potassium chloride).
64. Defendants have not consulted any anesthesiologists about the viability of administering only sodium thiopental and potassium chloride.
65. Defendants have not consulted any medical professionals about the viability of administering only sodium thiopental and potassium chloride.
10

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 11 of 62
66. Assisted suicide is legal in Oregon. According to the Death with Dignity reports required by Oregon law, more than 170 terminally ill people have been prescribed medication to end their lives in Oregon.
67. In almost all of these cases, the terminally ill person was prescribed a large dose of pentobarbital, a long-acting barbiturate, as the only chemical to cause death.
68. Defendants have not consulted any medical personnel about replacing sodium thiopental with pentobarbital.
69. Defendants have not considered replacing sodium thiopental with pentobarbital.
70. Defendants have not consulted any medical personnel about administering pentobarbital as the sole chemical to cause death.
71. Defendants have not considered administering pentobarbital as the sole lethal injection chemical.
72. The usage of sodium thiopental is not mandated by Kentucky law. 73. The usage of pancurium bromide is not mandated by Kentucky law. 74. The usage of potassium chloride is not mandated by Kentucky law. 75. Finding that any one, a combination of, or all these chemicals violates the Eighth Amendment to the United States Constitution will not require statutory amendment or variance. 76. To carry out Plaintiff’s execution, Defendants intend to insert two I.V.’s into Plaintiff. 77. The three chemicals will be injected from only one I.V. line.
11

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 12 of 62
78. The I.V. insertion team will spend up to 60 minutes attempting to insert an I.V. into Plaintiffs’ body.
79. If the I.V. insertion team is unable to insert the I.V.’s after 60 minutes, Defendant Rees and Defendant Simpson will ask Defendant Fletcher to call off the execution and reschedule it.
80. The chemicals are injected from outside the execution chamber by pushing them through a tube that flows approximately five feet to the catheter that is inserted into the condemned inmate’s vein.
81. The chemicals are injected by a member of the execution team referred to as the executioner.
82. The executioner (the person who actually injects the chemicals) has no medical training.
83. Plaintiff has never been allowed to depose or otherwise question Kentucky’s execution team.
84. Plaintiffs in lethal injection litigation in other states have been allowed to depose or otherwise examine the execution team in California, Maryland, and Missouri.
85. Based on information learned from questioning Missouri’s execution team, a federal district court judge in Missouri reversed his decision upholding Missouri’s execution protocol and instead ruled that the chemicals and procedures Missouri uses in carrying out lethal injections pose an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
86. Testimony from the only expert presented by the state in Baze v. Rees is now known to have been inaccurate.
12

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 13 of 62
A. Facts related to the unconstitutionality of the tri-chemical cocktail used in Kentucky lethal injections.
87. Sodium thiopental (pentothal) is an ultra-short acting barbiturate. 88. Sodium thiopental begins to wear off almost immediately. 89. Pancuronium bromide is a curare-derived agent that paralyzes all skeletal and voluntary muscles. 90. Pancuronium bromide has no impact whatsoever on awareness, cognition, or sensation. 91. Potassium chloride is an extraordinarily painful chemical which activates the nerve fibers lining a person’s veins and interferes with the rhythmic contractions of the heart, causing cardiac arrest. 92. This particular combination and sequence of chemicals create an unnecessary risk that Plaintiff will suffer an excruciatingly painful and protracted death in violation of the Eighth Amendment to the United States Constitution. 93. Prior to injecting sodium thiopental, Defendants offer the condemned inmate Valium. 94. If Plaintiff refuses to take Valium prior to his execution, Defendants will force him to do so if Defendants determine that Valium should be administered. 95. Defendants have no guidelines for determining under what circumstance a forced administration of Valium should take place. 96. Valium can interfere with sodium thiopental’s effectiveness. 97. Sodium thiopental is a powder that must be mixed into a liquid before injecting it.
13

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 14 of 62
98. According to the package insert for sodium thiopental, it should be administered only “by individuals experienced in the conduct of intravenous anesthesia.”
99. Defendants are not experienced in the process of intravenous anesthesia. 100. The executioner, the person administering thiopental, is not experienced in the conduct of intravenous anesthesia. 101. According to the package insert for sodium thiopental, “individual response to the drug is so varied that there can be no fixed dosage.” 102. Defendants inject the same dose of thiopental to all condemned inmates. 103. The concentration of thiopental injected determines the potency of sodium thiopental, i.e., if the sodium thiopental is too diluted, it will be less potent, and not ensure that the condemned inmate does not feel pain at any point during his execution. 104. Defendants are not adequately trained in mixing the lethal injection chemicals to ensure that the concentration of thiopental injected into the condemned inmate prevents the inmate from feeling pain. 105. Sodium thiopental is an ultra short-acting barbiturate which is ordinarily used only in the induction phase of anesthesia to render a surgical patient unconscious for mere minutes, specifically so that the patient may re-awaken and breathe on their own power if any complications arise in inserting a breathing tube pre-surgery. 106. Defendants administer sodium thiopental to prevent the condemned inmate from feeling pain. 107. Sodium thiopental is the only chemical administered by Defendants to prevent the condemned inmate from feeling pain. 108. Sodium thiopental does not relieve pain.
14

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 15 of 62
109. Analgesics (which include opiates) are the class of chemicals that relieve pain.
110. Sodium thiopental is not an analgesic. 111. Defendants do not administer an analgesic while carrying out lethal injections. 112. Sodium thiopental is almost never used as the only anesthetic during a surgical proceeding. 113. During surgical procedures, a barbiturate is administered to render a person unconscious and an analgesic is administered to ensure that the patient does not feel pain. 114. Both a barbiturate and an analgesic are continuously administered during surgical procedures. 115. Sodium thiopental was a state of the art barbiturate in 1977 when lethal injection first became a method of execution in the United States. 116. Sodium thiopental has been supplanted in the medical field by propafol. 117. As of April 20, 2005, Defendants are aware that sodium thiopental has been supplanted in the medical field by propafol. 118. Propafol is a safer and longer acting barbiturate than sodium thiopental. 119. Defendants have not consulted any medical professionals about the viability of using propafol instead of sodium thiopental. 120. Defendants have not taken any steps to look into the viability of using propafol instead of sodium thiopental.
15

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 16 of 62
121. Defendants have not taken any steps to look into the viability of replacing sodium thiopental with pentobarbital.
122. Because of its brief duration (usually about five to seven minutes), there is a reasonable probability that sodium thiopental will fail to provide a sedative effect throughout the entire execution process.
123. Three grams of sodium thiopental or even a larger dose is insufficient to induce unconsciousness if sufficient sodium thiopental does not reach the condemned prisoner’s bloodstream.
124. The concentration of sodium thiopental not the dose of thiopental injected into the condemned inmate determines whether the condemned inmate will feel pain.
125. Defendants fail to monitor the concentration of sodium thiopental and fail to monitor to ensure that the full quantity of sodium thiopental reaches the inmate’s bloodstream.
126. Defendants fail to determine if the inmate is unconscious to the point of being unable to feel pain prior to administering pancuronium bromide and potassium chloride.
127. Defendants’ only form of monitoring for unconsciousness prior to injecting the second and third chemical is physical observation of the inmate.
128. Prior to the administration of pancuronium bromide, checking corneal reflexes or pinching a person to see if a person responds are methods that could indicate whether a person can feel painful stimuli.
129. A BIS Monitor could also be used to monitor for consciousness.
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Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 17 of 62
130. North Carolina currently uses a BIS Monitor to determine consciousness prior to injecting pancuronium bromide and potassium chloride.
131. North Carolina decided to add a BIS Monitor to its lethal injection process because of testimony from Dr. Dershwitz in support of the BIS Monitor.
132. After the injection of pancuronium bromide, machines such as an EEG monitor can be used to monitor for the ability to feel painful stimuli.
133. If a person is able to feel pain, pancuronium bromide and potassium chloride would be extremely painful.
134. Because Defendants choose to use potassium chloride, instead of less painful alternatives, it is essential to ensure that a person cannot feel pain.
135. There are multiple levels of unconsciousness. 136. General anesthesia, also known as surgical anesthesia, is the level of anesthesia a person must be in to not feel pain during a lethal injection. 137. A person who appears unconscious to the lay observer may not be in a state of general anesthesia. 138. A person who appears unconscious can feel pain or wake up from painful stimuli if they are not in a state of general anesthesia. 139. A person who is unable to respond to verbal stimuli might be conscious enough to wake and feel painful stimuli, such as the pain caused by pancuronium bromide and potassium chloride. 140. When sodium thiopental is the sole anesthetic, at least 39-42 mg/L of thiopental in the bloodstream is necessary to ensure that a person will not wake up from painful stimuli. See Baselt, Disposition of Toxic Drugs and Chemicals in Man.
17

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 18 of 62
141. The 39-42 mg/L is the amount of thiopental necessary in the blood stream to prevent a person from waking from painful stimuli (in other words, the amount of thiopental necessary to achieve surgical anesthesia), not the amount of thiopental necessary to prevent a person from responding to a verbal command.
142. North Carolina injects sodium thiopental during executions. 143. Numerous toxicology reports on executed death row inmates in North Carolina, including toxicology results from four executions conducted between November 2005 and the end of January 2006, indicate thiopental levels below 39-42 mg/L. 144. Because the level of thiopental in bodies of inmates executed in North Carolina was below 39-42 mg/L, these inmates were likely able to feel pain during their executions. 145. Because North Carolina injects pancuronium bromide, the condemned inmate could not communicate that they were conscious and feeling pain, and evidence of consciousness could not be apparent to the observers of the execution. 146. South Carolina administers two grams of sodium thiopental. 147. Toxicology reports on death row inmates in Arizona and South Carolina indicate that numerous death-sentenced inmates in Arizona and South Carolina had less than 39-42 mg/L of thiopental in their bloodstream when executed. 148. Because the level of thiopental in body of inmates executed in Arizona and South Carolina was below 39-42 mg/L, these inmates were likely able to feel pain during their execution.
18

Case 3:06-cv-00022-KKC Document 137-2 Filed 03/19/2007 Page 19 of 62
149. Because both Arizona and South Carolina inject pancuronium bromide, none of the condemned inmates could communicate that they were conscious and feeling pain, and evidence of consciousness could not be apparent to the observers of the execution.
150. Edward Harper is the only person judicially executed by lethal injection in Kentucky.
151. Toxicology reports show that the level of thiopental in Edward Harper’s blood at the time of his execution by Defendants was between 3 and 6.5 mg/L.
152. The concentration of thiopental in Harper’s bloodstream was insufficient to ensure that he could not feel painful stimuli during his execution.
153. Edward Harper likely was conscious enough to feel pain when pancuronium bromide was administered.
154. Edward Harper likely was conscious enough to feel pain when potassium chloride was administered.
155. Because Defendants injected Harper with pancuronium bromide, Harper could not communicate that he was conscious and feeling pain, and evidence of consciousness was not apparent to the observers of the execution.
156. Dr. Dershwitz, who has testified on behalf of multiple correctional departments in lethal injection challenges in many states asserts that neither Harper nor any other inmate were likely conscious, defined by him as the ability to respond to verbal stimuli, during their execution.
157. Dr. Dershwitz has conducted no studies on sodium thiopental.
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158. Dr. Dershwitz bases his opinions on how chemicals, other than sodium thiopental, react with the human body.
159. Dr. Dershwitz bases his opinion on his knowledge of the use of sodium thiopental in conjunction with other chemicals to render an inmate unconscious.
160. Dr. Dershwitz’s opinion is also based on the amount of thiopental necessary to ensure a lack of response to verbal stimuli.
161. Dr. Dershwitz rarely relies on thiopental as the sole anesthetic during surgical procedures.
162. Dr. Dershwitz has not reviewed literature on injecting thiopental as the sole anesthetic and, until he testified in Baze v. Rees, he was unfamiliar with Baselt’s standard text for determining the amount of thiopental necessary to ensure that a person will not respond to painful stimuli.
163. A larger concentration of sodium thiopental is necessary to obtain and maintain unconsciousness when thiopental is used as the only chemical for this purpose.
164. An individual who is unable to respond to verbal stimuli can feel pain. 165. A larger concentration of sodium thiopental is necessary to ensure that a person who cannot respond to verbal stimuli also cannot feel pain. 166. Even according to Dershwitz, with 7 mg/L of sodium thiopental in the bloodstream, 50% of the population will be able to respond to verbal commands. 167. Based on Dershwitz’s calculations, the amount of thiopental in the blood necessary to prevent a person from feeling pain must be higher than 7 mg/L.
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168. Toxicology results from numerous individuals executed in Arizona, North Carolina, South Carolina, and the lone lethal injection in Kentucky indicate that the thiopental levels in the bloodstream were lower than 7 mg/L.
169. Dershwitz has calculated the amount of thiopental he expects to find in the blood five minutes after an injection of 3grams of thiopental. Dershwitz’s predictions on this change depending on what state has hired him as an expert.
170. In litigation in Maryland on behalf of Steven Oken, Dr. Dershwitz testified (by affidavit) that 30.15 mg/L of thiopental should be in Oken’s blood five minutes after injection.
171. 30.15 mg/L is below the 39-42 mg/L threshold level necessary to prevent a person from feeling painful stimuli, according to Baselt.
172. Toxicology results from Oken’s execution show that 10 mg/L of thiopental, not 30.15 mg/L, was found in Oken’s bloodstream.
173. In the four most recent executions in North Carolina, blood to test for the amount of thiopental was drawn shortly after death and at the time of the autopsy.
174. Steven Van McHone’s toxicology results showed thiopental levels of 1.5 mg/L and 21 mg/L.
175. The thiopental levels in McHone were lower than predicted by Dershwitz. 176. The thiopental levels in McHone were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli. 177. The thiopental levels in McHone were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt.
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178. Elias Syriani’s toxicology results showed thiopental levels of 4.4 mg/L, 11 mg/L, and 12 mg/L.
179. The thiopental levels in Syriani were lower than predicted by Dershwitz. 180. The thiopental levels in Syriani were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli. 181. The thiopental levels in Syriani were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt. 182. Kenneth Boyd’s toxicology results showed thiopental levels of 11 mg/L, and 29 mg/L. 183. The thiopental levels in Boyd were lower than predicted by Dershwitz. 184. The thiopental levels in Boyd were lower than the amount Dershwitz says is necessary to prevent 50 % of the population from responding to verbal stimuli. 185. The thiopental levels in Boyd were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Baselt. 186. Perrie Simpson’s toxicology results showed thiopental levels of 8.7 mg/L, 12 mg/L, 42 mg/L. 187. Two of the thiopental levels in Simpson were lower than predicted by Dershwitz. 188. Two of the thiopental levels in Simpson were lower than the amount Dershwitz says is necessary to prevent 50% of the population from responding to verbal stimuli.
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189. Two of the thiopental levels in Simpson were lower than the 39-42 mg/L of thiopental necessary to prevent a person from feeling painful stimuli, according to Dershwitz.
190. According to Dershwitz, 5 grams of thiopental should render a person unconscious in about one minute.
191. Recently, Delaware executed Brian Steckel. It took many minutes for the chemicals to take effect.
192. After the sodium thiopental was injected, Steckel was able to speak and asked why it was taking so long for the chemicals to take effect.
193. Steckel was not rendered unconscious within a minute of the injection of thiopental.
194. The length of time it took for Steckel to be rendered unconscious shows that the concentration or amount of thiopental (or both) that reached his bloodstream was insufficient to prevent him from reacting to painful stimuli.
195. Witnesses to Steckel’s execution observed Steckel’s convulsions during his execution.
196. Convulsions are caused by potassium chloride. 197. Pancuronium bromide prevents witnesses from seeing convulsions caused by potassium chloride. 198. Because Steckel convulsed during his execution, the pancuronium bromide did not paralyze the body.
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199. Because the sodium thiopental did not prevent Steckel from feeling pain, he was able to feel the excruciating agony of pancuronium bromide and pain of potassium chloride.
200. California administers 5 grams of sodium thiopental. 201. Recently disclosed information on the last 13 lethal injections in California establishes that many inmates are conscious, and thus feeling the pain of pancuronium bromide and potassium chloride during their executions. 202. Because sodium thiopental begins to wear off almost immediately and cessation of respiration does not mean death, within five minutes or less of the injection, the inmates will be able to feel painful stimuli. 203. According to Dershwitz, a 5 gram dose of sodium thiopental will cause virtually all people to cease respiration and consciousness within a minute. 204. Evidence from six executions in California show that, even after a 5 gram dose of sodium thiopental, a condemned inmate’s breathing does not stop within a minute, and in some situations has lasted for as long as twelve minutes. 205. Jaturun Siripongs was executed in California on February 9, 1999. The administration of sodium thiopental began at 12:04 a.m. and the administration of pancuronium bromide began at 12:08 a.m., yet respiration did not cease until 12:09 a.m., five minutes after the administration of sodium thiopental began and one minute after the administration of pancuronium bromide. 206. The amount of time that elapsed before respiration stopped establishes that Siripongs did not stop breathing within one minute of the injection of sodium thiopental.
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207. The amount of time that elapsed before respiration stopped creates a high likelihood that the sodium thiopental was not working and that Siripongs was able to feel pain during his execution.
208. Manuel Babbitt was executed in California on May 4, 1999. The administration of sodium thiopental began at 12:28 a.m. and the administration of pancuronium bromide began at 12:31 a.m., yet respiration did not cease until 12:33 a.m., five minutes after the administration of sodium thiopental began and two minutes after the administration of pancuronium bromide began.
209. In addition, brief spasmodic movements were observed in Babbitt’s upper chest at 12:32 a.m. Babbitt maintained a steady heart rate of 95 or 96 beats per minute for seven minutes after he was injected with sodium thiopental.
210. Babbitt’s heart rate and the amount of time that elapsed before respiration ceased establishes that Babbitt did not stop breathing within one minute of the injection of sodium thiopental
211. Babbitt’s heart rate and the amount of time that elapsed before death establishes that the sodium thiopental was not working and that Babbitt was likely able to feel pain during his execution.
212. Darrell Keith Rich was executed in California on March 15, 2000. The administration of sodium thiopental began at 12:06 a.m. and the administration of pancuronium bromide began at 12:08 a.m., yet respiration did not cease until 12:08 a.m., when pancuronium bromide was injected, two minutes after the administration of sodium thiopental began.
213. Chest movements were observed in Rich from 12:09 a.m. to 12:10 a.m.
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214. The above information on Rich’s execution establishes that Rich did not stop breathing within one minute of the injection of sodium thiopental
215. The above information on Rich’s execution establishes that the sodium thiopental was not working and that Rich was able to feel painful stimuli during his execution.
216. Stephen Wayne Anderson was executed in California on January 29, 2002. The administration of thiopental began at 12:17 a.m. and the administration of pancuronium bromide began at 12:19 a.m., yet respiration did not cease until 12:22 a.m., five minutes after the administration of sodium thiopental began and three minutes after the administration of pancuronium bromide began.
217. The above information establishes that Anderson did not stop breathing within one minute of the injection of sodium thiopental.
218. The above information establishes that the sodium thiopental was not working and that Anderson was likely able to feel painful stimuli during his execution.
219. Stanley Tookie Williams was executed on December 13, 2005. The administration of sodium thiopental began at 12:22 a.m., the administration of pancuronium bromide began at 12:28 a.m., and the administration of potassium chloride began at 12:32 a.m. or 12:34 a.m., yet respiration did not cease until either 12:28 a.m. or 12:34 a.m.
220. The above information establishes that Williams did not stop breathing within a minute of the injection of sodium thiopental.
221. The above information establishes that the sodium thiopental was not working and that Williams was likely able to feel painful stimuli during his execution.
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222. Clarence Ray Allen was executed on January 17, 2006. The administration of sodium thiopental began at 12:18 a.m., yet respiration did not cease until 12:27 a.m., when pancuronium bromide was injected.
223. The above information establishes that Allen did not stop breathing within one minute of the injection of sodium thiopental.
224. The above information establishes that the sodium thiopental was not working and that Allen was likely able to feel painful stimuli during his execution.
225. Defendants do not keep logs on whether and how long the condemned inmate is breathing.
226. Defendants have taken no precautions or corrective measures to ensure that three grams of sodium thiopental will reach an inmate’s bloodstream in the correct concentration and render the inmate unconscious enough to not feel pain. 227. Defendants do not use any medical equipment to monitor the condemned inmate’s respiration, heart beat, pulse, or brain waves during the execution. 228. If thiopental is not injected directly into a vein, it will not render a person unconscious. 229. If the vein collapses, thiopental will leak into the surrounding tissue and fail to render the inmate unconscious. 230. If thiopental is injected into a location in the body that is not a vein, the thiopental in the inmate’s body would be extremely painful. 231. It took 34 minutes for Florida to carry out the execution of Angel Diaz.
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232. Angel Diaz was conscious during his execution and exhibited signs of pain and suffering.
233. The I.V.’s inserted into Diaz pierced the vein. 234. The lethal injection chemicals were accidentally injected into the tissue and other body parts other than the vein. 235 Because the sodium thiopental was not injected into Diaz’s veins, it did not render him unconscious. 236. Diaz suffered 12 inch chemical burns on both arms from the lethal injection chemicals. 237. The Florida Department of Corrections and execution team did not realize something had gone wrong during Diaz’s execution until after the execution was completed. 238. The problems that occurred with Diaz’s execution are likely to occur in Kentucky under Defendants’ current chemicals and procedures for carrying out lethal injections. 239. During the execution of Joseph Clark in Ohio on May 2, 2006, Clark appeared to fall asleep, but about three or four minutes later, he raised his head and began speaking. 240. Clark’s vein collapsed after the chemicals began to flow. 241. Because Clark’s vein collapsed, the chemicals began to flow into other parts of his body, causing pain but not rendering him unconscious or causing his death. 242. It took one hour and twenty six minutes to carry out Clark’s execution.
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243. In surgical procedures, the quantity of anesthetic administered depends upon factors unique to the patient including size, weight, and past drug usage.
244. Administration of valium can lessen the efficacy of sodium thiopental. 245. In an individual who is resistant to sodium thiopental, a higher dose of sodium thiopental is necessary to induce unconsciousness to the point where the person will not feel pain. 246. An overweight person is likely to be more resistant to sodium thiopental. 247. Prolonged usage of barbiturates builds up a resistance to sodium thiopental. 248. Edward Harper presented none of the above mentioned risk factors. 249. An insufficient amount or concentration of sodium thiopental reached Edward Harper’s bloodstream. 250. Due to the chemical combination and sequence used in the Kentucky execution process, there is a probability that the sedative effect of the sodium thiopental will be neutralized instantly by the second chemical, pancruonium bromide. 251. When sodium thiopental is exposed to pancuronium bromide, sodium thiopental precipitates, i.e., returns to the solid condition. 252. Once sodium thiopental returns to its solid condition, it no longer performs its anesthetic function. 253. If Plaintiff is not adequately sedated to the point where he cannot feel painful stimuli, he will suffer the conscious experience of being paralyzed while suffocating and an intense fiery burning sensation in every nerve in his body, if Defendants execute him with the three chemicals Kentucky plans to use for his execution.
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254. The second chemical involved in the lethal injection process, pancuronium bromide, is a derivative of curare that acts as a neuromuscular blocking agent.
255. Pancuronium bromide is a long acting neuromuscular blocking agent. 256. While pancuronium bromide paralyzes skeletal and voluntary muscles, including the diaphragm, it has no effect on consciousness or the ability to feel pain. 257. Pancuronium bromide will serve only to mask the excruciating pain and convulsions suffered by Plaintiff. 258. Pancuronium bromide prevents a conscious individual from notifying anyone that he or she is conscious or in pain. 259. Pancuronium bromide prevents a conscious individual from showing any signs of consciousness or pain. 260. Defendants do not monitor for consciousness or pain after the injection of sodium thiopental or pancuronium bromide. 261. Many means of monitoring for consciousness after injecting pancuronium bromide exist, including blood pressure cuffs, EEG monitoring, using an EKG machine (if located in the execution chamber and read throughout the execution, not just at the end to determine death). 262. None of the above means of monitoring for consciousness after injecting sodium thiopental or pancuronium bromide are used by Defendants. 263. A condemned inmate who appears unconscious could feel pain because
1) less than the expected dose of the anesthetizing drug, sodium thiopental, has been successfully injected into the individual’s bloodstream, or has failed to remain in the person’s bloodstream;
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2) sensitivity to sodium thiopental varies greatly among the population and some individuals;
3) the duration of the effectiveness of sodium thiopental has worn off; OR,
4) the concentration of sodium thiopental was insufficient to render the inmate unconscious to the point where the inmate cannot feel pain.
264. If a condemned inmate regains consciousness or the ability to feel pain during an execution, the inmate will suffer the agony of suffocation and paralysis due to pancuronium bromide and the excruciating pain of potassium chloride.
265. The pain suffered by a conscious inmate would be less if Defendants replaced potassium chloride with some other chemical to stop the heart.
266. Pancuronium bromide collapses the lungs and, in a conscious person, causes the extreme agony of paralysis and suffocation.
267. Death by suffocation is akin to drowning. 268. Death by suffocation is akin to dying in a gas chamber. 269. Pancuronium bromide can cause individuals to have a gastric reaction that causes vomit to fill an inmate’s mouth. 270. The vomit caused by the usage of pancuronium bromide can flow into a person’s lungs causing suffocation. 271. Because pancuronium bromide paralyzes the diaphragm, a person is unable to regurgitate the vomit.
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272. If a person is conscious when the vomit flows into the mouth, a person paralyzed by pancuronium bromide is likely to suffer extreme pain and suffering as the person silently chokes to death on vomit.
273. The American Veterinary Medicine Association (AVMA) condemns the use of neuromuscular blocking agents such as pancuronium bromide in the euthanasia of animals when a sedative (anesthetic or barbiturate) is administered.
274. At least 31 states have made the use of pancuronium bromide on domestic animals illegal. Kentucky is one of a majority of States that have banned its use. K.R.S. section 321.181(17) and 201 K.A.R. 16:090.
275. Since legislatures began prohibiting using neuromuscular blocking agents with sedatives, no legislature or other governing body has expressly condoned this practice or repealed statutes forbidding it.
276. The first lethal injection procedure designed in the United States called for a paralytic agent to cause death.
277. Using pancuronium bromide or any chemical to stop respiration is not necessary to cause death.
278. Potassium chloride, the third chemical involved in Kentucky’s lethal injection process, stops the prisoner’s heart, and, thereby cause cardiac arrest and death.
279. With the use of potassium chloride, pancuronium bromide is not necessary to cause death.
280. Pancuronium bromide serves no legitimate purpose in a lethal injection execution, particularly considering the readily available alternative of conducting the lethal injection execution without pancuronium bromide.
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281. Pancuronium bromide is administered to make the lethal injection process more aesthetically palatable for the official witnesses by preventing the witnesses from seeing any involuntary twitching, convulsions, or seizures that may be caused by the potassium chloride or the dying process itself.
282. The involuntary muscle reactions caused by potassium chloride can be avoided by using many other non painful ways of stopping the heart that will not cause involuntary muscles reactions.
283. Eliminating pancuronium bromide from the lethal injection process will not increase the amount of pain that a condemned inmate suffers during the dying process.
284. Preventing official witnesses from seeing the effects of each chemical during the lethal injection process is not a legitimate reason to administer a drug, particularly when the drug increases the risk of inflicting horrific pain and suffering upon the condemned person.
285. Preventing witnesses from seeing the effects of the killing agent prevents public perception and awareness regarding that agent, and thus violates the Eighth Amendment to the United States Constitution because it prevents the public from moving towards an informed consensus either for or against the use of the killing chemical.
286. A chancery court in Tennessee has found the usage of pancuronium bromide during lethal injections to be arbitrary and unnecessary.
287. The use of pancuronium bromide during an execution violates evolving standards of decency.
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288. The use of pancuronium bromide during an execution creates an unacceptable risk that Plaintiff will suffer an unnecessarily painful death.
289. Potassium chloride, the third chemical used in Kentucky’s lethal injection process, is a strong alkaline chemical.
290. Potassium chloride is commonly used as road salt. 291. In Kentucky lethal injections, potassium chloride is used to stop the heart from beating, and thus to cause death. 292. The EKG printout from the one lethal injection execution in Kentucky (that of Edward Harper) shows that Harper was alive when potassium chloride was administered and that potassium chloride caused his death. 293. During the execution of Clarence Ray Allen in California on January 17, 2006, a second administration of potassium chloride had to be administered because the first one did not kill him. 294. The dose of potassium chloride administered to Allen should have caused his death in less than a couple of minutes, as soon as the potassium chloride cycled through Allen’s body. 295. The fact that a second dose of potassium chloride had to be administered to Allen establishes that the full dose of potassium chloride did not reach Allen’s heart. 296. When potassium chloride reaches the heart in large doses, such as that used in Kentucky lethal injections, it causes a massive heart attack. 297. The administration of potassium chloride is extremely painful when administered intravenously.
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298. Potassium chloride ravages the organs by causing an extremely painful burning sensation in every nerve as it courses through the body.
299. Pancuronium bromide prevents an inmate from expressing the pain caused by potassium chloride.
300. Potassium chloride can be replaced by many non-painful chemicals that would stop the heart in a short period of time without causing any convulsions.
301. Dilantin is a non-painful chemicals that would stop the heart in a short period of time without causing any convulsions.
302. Veterinarians do not use potassium chloride in euthanizing animals. 303. Veterinarians euthanize animals by injecting a lethal dose of pentobarbital. 304. Pentobarbital is a long acting barbiturate. 305. Pentobarbital is a potential alternative to the tri-chemical cocktail used in Kentucky lethal injections. 306. Defendants have shown a deliberate indifference to the risk of inflicting unnecessary pain and suffering and towards serious medical needs, by copying lethal injection procedures from other states without investing meaningful and independent efforts to ensure that Kentucky’s lethal injection execution procedures comply with contemporary medical standards and long-standing constitutional standards. 307. Upon information and belief, Defendants have conducted no scientific or medical studies concerning the chemicals and procedures they use for lethal injection since they were made aware of potential problems with the process in August 2004. 308. Defendants’ failure to conduct medical or scientific tests on the chemicals since August 2004 and their failure to adopt alternative chemicals and procedures in light
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of the information presented to them since August 2004 shows their deliberate indifference towards known medical needs.
309. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because Warden Simpson, who is in charge of the prison where executions take place, has never been involved in an execution by lethal injection.
310. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because Warden Simpson, who is in charge of the prison where executions take place, has never witnessed an execution by lethal injection.
311. The risk of inflicting severe and unnecessary pain and suffering upon Plaintiff during his execution is grave because execution team members regularly have had difficulty inserting the IV needle into test subjects during mock lethal injections.
312. The risk of unnecessary pain and suffering is grave because when the Kentucky Department of Corrections carried out its first and only lethal injection, unanticipated problems occurred and the Department of Corrections proceeded without correcting these problems.
313. According to witnesses at the execution of Edward Harper on May 25, 1999, it took ten minutes and at least three stabs with a needle to find a suitable vein to inject the chemicals.
314. According to witnesses at the execution of Edward Harper on May 25, 1999, within two minutes of the administration of sodium thiopental, Harper’s face turned purple and became puffy.
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315. Defendants did not determine if a purple and puffy face was normal during an execution by lethal injection, but continued with the execution.
316. Defendants have taken no steps subsequently to determine whether a purple and puffy face is normal during a lethal injection.
317. The risk of unnecessary pain and suffering is grave in Kentucky because the individuals responsible for mixing the chemicals, inserting the I.V.s, and injecting the chemicals are not adequately trained.
318. The risk of unnecessary pain and suffering and malfunctions in the lethal injection process is grave in Kentucky because Defendants inject the chemicals from outside the execution chamber by sending the chemicals through a tube that carries the chemicals to the vein rather than injecting the chemicals directly into the vein.
319. The lethal injection chemicals travel through a tube in the wall for five feet before entering the condemned inmate.
320. Defendants could inject the chemicals directly into the vein if the executioner was inside the execution chamber and inserted the chemicals directly into the catheter.
321. Plunging the chemicals through a tube connected to a catheter rather than injecting the chemicals directly into the vein increases the risk that the condemned inmate will suffer unnecessary pain during his execution.
322. How fast the lethal injection chemicals are pushed through the plunger into the tube impacts whether the chemical will get into a person’s vein.
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323. How fast the lethal injection chemicals are pushed through the plunger into the tube impacts how long it will take for a chemical to take effect and how quickly that effect will wear off.
324. The executioner is not trained in how fast to push the plunger. 325. The executioner is not instructed on how fast to push the plunger. 326. The package inserts and labels on the lethal injection chemicals do not say how fast to push the plunger. 327. There is a high risk that the executioner may push the lethal injection chemicals into Plaintiff too quickly or too slowly. 328. If the lethal injection chemicals are pushed into Plaintiff too quickly or too slowly, Plaintiff will suffer unnecessary pain. 329. Defendants use one size catheter to inject the lethal injection chemicals. 330. The size of the catheter used during lethal injections is different than the size standardly used in medical settings for drawing blood or inserting an I.V. 331. If too small a catheter is used during Plaintiff’s execution, the chemicals will not reach Plaintiffs’ bloodstream as quickly as they should. 332. Using too small a catheter creates an unnecessary risk that the injection of sodium thiopental will not prevent the inmate from feeling pain throughout the execution. B. Facts relevant to inserting an I.V. 333. Defendants plan to insert two I.V. lines into Plaintiff. 334. Different size catheters are used in medical proceedings depending on the height and weight of the patient and the size of the patient’s veins. 335. If the catheter is too large, the vein could blow out.
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336. A blown vein means that the chemicals would be going into a part of the body other than the vein or not entering the body at all if it causes the I.V. to dislodge.
337. Injecting the lethal injection chemicals into a part of the body other than the vein would be extremely painful.
338. Injecting the lethal injection chemicals into a part of the body other than the vein would prevent the chemicals from having the desired effect.
339. Injecting sodium thiopental into a part of the body other than the vein means that the thiopental would not render a person unconscious.
340. Defendants use only one size catheter during lethal injections. 341. Defendants do not take into consideration the condemned inmate’s weight, height, or the size of the inmate’s veins in determining what size catheter to use during the inmate’s execution. 342. The size of the catheter used by Defendants during lethal injections is different from the size most commonly used when drawing blood or inserting an I.V. in a medical setting. 343. The size of the catheter used in lethal injections increases the likelihood that Defendants will not be able to insert an I.V. into Plaintiff’s veins. 344. Training and experience in drawing blood is different from training and experience in inserting a catheter. 345. The I.V. team has no experience in inserting a catheter. 346. The I.V. team has no training in inserting a catheter. 347. Defendants will spend up to 60 minutes attempting to insert the two I.V. lines.
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348. The decision to spend up to 60 minutes inserting an I.V. is a change to Defendants’ execution procedures that occurred during the lethal injection litigation on behalf of Plaintiff.
349. Defendant Rees made the decision to require the execution team to attempt to insert the I.V. for 60 minutes.
350. Defendant Rees did not consult any medical professionals concerning attempting to insert an I.V. for 60 minutes prior to requiring the execution team to spend 60 minutes attempting to insert an I.V.
351. In Kentucky, doctors and nurses are not involved in obtaining venous access.
352. In Kentucky, doctors and nurses are not permitted to intervene if complications arise from attempting to obtain venous access.
353. Defendants may attempt to insert an I.V. into the groin. 354. Inserting an I.V in the groin creates an unnecessary risk of pain and suffering. 355. Inserting an I.V. in the groin mutilates the body. 356. Inserting an I.V. in the groin violates the dignity of man. 357. Defendants have stated that if they are unable to insert an I.V. after 60 minutes, they will ask Defendant Fletcher to call off the execution. 358. Defendants have not declared what they will do if Defendant Fletcher refuses to call off the execution. 359. If Defendant Fletcher calls off the execution, Defendants will practice and attempt the same process of inserting a needle into Plaintiff.
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360. This cycle of calling off Plaintiff’s execution, practicing inserting I.V.’s, rescheduling Plaintiff’s execution, and performing the same method of inserting an I.V. will continue repeatedly with no likelihood that Defendants will be able to insert an I.V. into Plaintiff.
361. The likelihood that a problem will arise inserting an I.V. needle is great because Defendants had difficulty inserting an I.V. needle in the only lethal injection execution they carried out.
362. In executing Edward Harper on May 25, 1999, it took Defendants ten minutes to access his veins.
363. The difficulty accessing Edward Harper’s vein during his execution in 1999 was an unanticipated problem.
364. Similarly, Ohio’s difficulty accessing the veins of Joseph Clark on May 2, 2006 was an unanticipated problem.
365. It took the execution team more than twenty minutes to insert an I.V. in Clark’s vein.
366. When Clark’s vein collapsed, it took the execution team approximately 40 additional minutes to reinsert an I.V. into Clark’s vein.
367. Throughout the attempts to insert an I.V. and the injections of the chemicals, Clark was heard moaning and groaning in pain.
368. It is likely that Defendants will have difficulty inserting an I.V. into Plaintiff during his execution.
369. Florida’s difficulty accessing the veins of Angel Diaz was an unanticipated problem.
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370. Florida did not know they had problems accessing Angel Diaz’s veins until after the execution was completed.
371. If veins or blood vessels blow during an execution, the chemicals will not have the desired effect.
372. If the chemicals do not remain in Plaintiff’s veins, Plaintiff will suffer an excruciatingly painful death.
373. It should only take two to three minutes to insert an I.V. 374. Well before 20 minutes of attempting to insert an I.V. has elapsed, the inmate will experience a great deal of pain and discomfort. 375. After 20 minutes of attempting to insert an I.V., the I.V. team will have exhausted all available locations to insert a needle. 376. Attempting to insert a needle for 60 minutes mutilates the body in violation of the Eighth Amendment to the United States Constitution. 377. Attempting to insert a needle for 60 minutes is excessive in violation of the Eighth Amendment to the United States Constitution. 378. Attempting to insert a needle for 60 minutes is unnecessarily painful in violation of the Eighth Amendment to the United States Constitution. 379. Subjecting Plaintiff to the possibility of multiple attempts to execute him causes unnecessary psychological suffering, in violation of the Eighth Amendment to the United States Constitution.
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C. Facts relevant to Defendants’ inadequate equipment and personnel for maintaining life if a stay of execution is granted after the first or second chemical is administered. 380. Life can be maintained after 3 grams of sodium thiopental has been injected into a person. 381. Maintaining life after an injection of 3 grams of sodium thiopental would not be difficult if medical personnel certified in cardiac life support are present at the execution chamber and provided with the proper equipment. 382. Life can be maintained after the administration of pancuronium bromide during lethal injections. 383. Maintaining life after an injection of pancuronium bromide would not be difficult if medical personnel certified in cardiac life support are present at the execution chamber and provided with the proper equipment. 384. There are chemicals that will stop the heart, but are easier to reverse than potassium chloride. 385. EMT’s, phlebotomists, and doctors of general medicine are not trained in how to reverse the effects of sodium thiopental or pancuronium bromide. 386. No member of Defendants’ execution team is adequately trained in reversing the effects of sodium thiopental or pancuronium bromide. 387. No doctor or medical professional is present inside the execution chamber to reverse the effects of sodium thiopental or pancuronium bromide. 388. Having a medical professional trained in how to reverse the effects of sodium thiopental and pancuronium bromide physically located in the execution chamber is essential to reversing the effects of the chemical before death occurs.
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389. If a stay of execution is granted after sodium thiopental or pancuronium bromide is administered, Defendants have an obligation to take measures to maintain the life of the condemned inmate.
390. During state court lethal injection litigation on behalf of Plaintiff, Defendants created a one page document on the duration of onset of the chemicals, and how to reverse the effects of the lethal injection chemicals.
391. This one page document is what Defendants are relying on in determining how to reverse the effects of the lethal injection chemicals.
392. This one page document is incorrect on how to reverse the effects of the lethal injection chemicals.
393. This one page document instructs Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemicals that could cause the inmate’s death.
394. This one page document instructs Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemicals that would not reverse the effects of the lethal injection chemicals.
395. This one page document fails to instruct Defendants to use equipment and chemicals to reverse the effects of the lethal injection chemical that are absolutely necessary to reverse the effects of the lethal injection chemicals.
396. Defendants have a “crash cart” available purportedly to maintain life if a stay of execution is granted after sodium thiopental or pancuronium bromide is administered.
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397. Defendants’ crash cart does not have all the chemicals listed on the one page document Defendants created on how to maintain life after one or more of the chemicals have been injected.
398. Defendant Haas designates the person who will operate the crash cart. 399. For the previously scheduled execution of Thomas Clyde Bowling, Defendant Haas was the individual who would operate the crash cart. 400. Defendant Haas is the Medical Director for the Department of Corrections. 401. Defendant Haas has not worked in an emergency medical setting since medical school. 402. Defendant Haas is a practicing psychiatrist. 403. Defendant Haas has not treated patients in many years. 404. Defendant Haas is not adequately trained in maintaining life after sodium thiopental or pancuronium bromide has been injected into a person. 405. No medical professional employed by the Kentucky Department of Corrections is adequately trained in maintaining life after sodium thiopental or pancuronium bromide has been injected into a person. 406. The crash cart Defendants have available at the Kentucky State Penitentiary is insufficient to maintain life after sodium thiopental or pancuronium bromide has been administered. 407. Medications to increase blood pressure and contract the heart are necessary to maintain life after 3 grams of sodium thiopental has been administered.
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408. Epinephrine is necessary to maintain life once 3 grams of sodium thiopental has been administered.
409. Once pancuronium bromide is administered, artifical ventilation is necessary to maintain life.
410. Artificial ventilation is not part of the equipment included on Defendants’ crash cart.
411. Insulin is also necessary to maintain life if a stay of execution is granted after the lethal injection chemicals have begun to flow through the condemned inmate’s body.
412. Insulin is not one of the drugs in Defendants’ crash cart. 413. Neostigmine is necessary to maintain life if a stay of execution is granted after the lethal injection chemicals have begun to flow through the condemned inmate’s body. 414. Neostigmine is not one of the drugs in Defendants’ crash cart. 415. Because Defendants’ crash cart does not contain the equipment necessary to maintain life after sodium thiopental or pancuronium bromide have been injected, Defendants’ crash cart does not meet the minimum constitutional requirements for maintaining life. 416. It would not be difficult for Defendants to obtain the necessary equipment for maintaining life after the first or second chemical has been administered.
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D. Facts Relevant to the Due Process and Fundamental Fairness Claim. 417. The Due Process clause prevents a person from being sentenced to death and executed upon information that he is barred from refuting. 418. The Due Process clause requires notice and the opportunity to be heard prior to depriving a person of life, liberty, or property. 419. In Kentucky, inmates sentenced to death prior to March 31, 1998 are permitted to choose electrocution. 420. In order to make a knowing and intelligent choice between lethal injection and electrocution, death sentenced inmates must have an opportunity to review the entire execution procedures for both methods. 421. Defendants refuse to disclose the execution procedures that will be utilized in carrying out Plaintiff’s executions. 422. Due process and notions of fundamental fairness mandate that Defendants provide Plaintiffs with a copy of the execution procedures that will be used to extinguish their lives so that they can make an intelligent and knowing decision of a method of execution. 423. Due process and notions of fundamental fairness mandate that Defendants provide Plaintiffs with a copy of the execution procedures that will be used to extinguish their lives so that they can independently determine whether a particular aspect of the lethal injection or electrocution process may constitute cruel and unusual punishment, and to consult medical experts concerning that possibility.
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E. Facts Relevant to the Electrocution Claim. 424. In Kentucky, condemned inmates sentenced prior to March 31, 1998, may choose between electrocution and lethal injection. 425. Plaintiff will not select a method of execution. 426. The default method of execution in Kentucky is lethal injection. 427. If lethal injection is found unconstitutional on its face, Kentucky law requires executions to be carried out by electrocution. 428. Execution by electrocution violates the Eighth Amendment of the United States Constitution. 429. Nebraska is the only state in the country that utilizes electrocution as the sole method of execution. 430. Warden Simpson, who is in charge of the prison where executions take place, has never been involved in an execution by electrocution. 431. The Deputy Wardens at the Kentucky State Penitentiary have not participated in an execution by electrocution. 432. Execution by electrocution will cause Plaintiff to consciously suffer an excruciatingly painful and protracted death. 433. The American Veterinary Medicine Association bans electrocution in the euthanasia of animals. 434. Electrocution causes death by asphyxia and cardiac arrest. 435. At least 2000 volts of electricity are necessary to cause heart death. 436. If heart death is not immediately achieved, execution by electrocution is excruciatingly painful.
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437. During an execution by electrocution, the body fluids heat to a temperature near the boiling point of water.
438. Execution by electrocution causes third and fourth degree burns. 439. Third and fourth degree burns are extremely painful. 440. Consciousness is controlled by the brain. 441. The human skull insulates the brain from high voltage electricity. 442. If high voltage electricity does not reach the brain, Plaintiff will remain conscious during his execution. 443. There are documented cases of condemned inmates who were alive after the first administration of electricity. 444. Condemned inmates’ hearts have beaten after the flow of electricity has stopped. 445. The continued beating of the heart after the cessation of the current indicates that unconsciousness was not instantaneous. 446. Respiratory movement has been observed in condemned inmates after the flow of electricity has stopped. 447. Respiratory movement indicates brain function and a lack of instant incapacitation. 448. Respiratory centers are located near deep pain centers. 449. Respiratory movement shows that the pain centers are not instantly destroyed. 450. If Plaintiff is conscious during his electrocution, he will suffer an excruciatingly painful death by asphyxia and cardiac arrest.
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451. Unnecessary pain and suffering is inherent in executions by electrocution. 452. Botched electrocutions have occurred in the United States. 453. Execution by electrocution causes mutilation of the body including:
a) severe burns to the face and scalp; b) burns to the legs; c) burns to other parts of the body; d) discoloring of the skin; e) layers of skin pealing and melting away; f) contortion of the limbs, fingers, and toes; g) vomiting blood; h) vomiting drool; and, i) exploding body parts. 454. The Commonwealth of Kentucky has carried out one execution by electrocution since 1962, the electrocution of Harold McQueen in 1997. 455. According to the post mortem examination of Harold McQueen conducted by the Western Regional Medical Examiner, McQueen suffered the following types of injuries from the electrocution: a) a 1-2 mm ring like contact electrical burn encircling the parietal and
frontal scalp, gray-brown in color, which was bordered by a 5mm –1 cm rim of pallor, which was bordered by a lateral rim of up to 3cm. of subcutaneous congestion; b) a 17 x 6 cm. “irregular” contact electrical burn on the right calf just below the knee;
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c) partially charred skin with blistering; d) a 1-2 mm “C” shaped electrical burn on the right thigh; e) pressure marks from the electric chair straps present on the face, back
of head, extremities, and abdomen; f) red-purple ecchymosis (escape of blood into the tissue) on the right
bicep; g) “irregular” red-purple ecchymosis on the upper left forearm; and, h) a cluster of red-purple petechiae (hemmorrhage) on the dorsal right
foot. 456. Execution by electrocution violates the cruel and unusual punishment clause of the Eighth Amendment because electrocution:
a) causes unnecessary pain and suffering; b) creates a risk of unnecessary pain and suffering; c) mutilates the body; d) serves no legitimate purpose considering the existence of readily available and less painful alternatives; and, e) violates evolving standards of decency.
VI. CLAIMS FOR RELIEF Claim A - - administration of chemicals. 457. Defendants intend to extinguish Plaintiff’s life by administering chemicals in a manner that creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
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Claim B - - three chemical combination. 458. Defendants intend to execute Plaintiff by injecting a combination of three chemicals - - sodium thiopental, pancuronium bromide, and potassium chloride - - that creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim C - - analgesic 459. Defendants’ failure to administer an analgesic during the lethal injection process creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim D - - sodium thiopental 460. Defendants’ use of sodium thiopental as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim E - - pancuronium bromide as lethal injection chemical 461. Defendants’ use of pancuronium bromide as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. Claim F - - pancuronium bromide preventing public perception of effects of
chemicals 462. The use of pancuronium bromide prevents public awareness necessary to any change in consensus for or against lethal injection, in violation of the Eighth Amendment to the United States Constitution.
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Claim G - - pancuronium bromide under standards of decency 463. The use of pancuronium bromide does not conform with evolving standards of decency, and thus, Defendants’ use of pancuronium bromide violates the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.
Claim H - - potassium chloride 464. Defendants’ use of potassium chloride as one of the lethal injection chemicals creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
Claim I - - deliberate indifference involving the chemicals 465. Defendants’ adoption of lethal injection chemicals on the basis that other states use the same chemicals, their failure to consult with medical professionals, and their failure to consider using alternative chemicals for lethal injections after they were put on notice of problems with the lethal injection chemicals and less painful alternative chemicals that could be used to carry out lethal injections constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM J - - monitoring to ensure that the inmate does not feel pain after sodium thiopental injected
466. Defendants’ failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
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CLAIM K - - deliberate indifference for not monitoring to ensure that the inmate does not feel pain after sodium thiopental injected
467. Defendants’ failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide creates constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM L - - monitoring to ensure that the inmate does not feel pain after pancuronium bromide is injected
468. Defendants’ failure to ensure that the condemned inmate is incapable of feeling pain after the injection of pancuronium bromide creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM M - - deliberate indifference for not monitoring to ensure that the inmate does not feel pain after pancuronium bromide is injected
469. Defendants’ failure to ensure that the condemned inmate is incapable of feeling pain after the injection of sodium thiopental and before the injection of pancuronium bromide constitutes deliberate indifference towards medical needs in violation of the Eighth Amendment to the United States Constitution.
CLAIM N - - training of execution team 470. Defendants’ failure to provide adequate training in inserting I.V.’s, mixing lethal injection chemicals, injecting the lethal injection chemicals, and monitoring to ensure that the condemned inmate cannot feel pain creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
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CLAIM O - - inserting an I.V. in the groin 471. Inserting an I.V. in the groin creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM P - - attempting to insert an I.V. for up to 60 minutes 472. Attempting to insert an I.V. for up to 60 minutes causes excessive pain and suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM Q - - pain from attempting to insert I.V. for up to 60 minutes 473. Attempting to insert an I.V. for up to 60 minutes creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM R - - mutilation by attempting to insert I.V. for up to 60 minutes 474. Attempting to insert an I.V. for up to 60 minutes mutilates the body in violation of the Eighth Amendment to the United States Constitution. CLAIM S- - not having a guaranteed method of obtaining venous access 475. Defendant’s failure to have a guaranteed means for accessing Plaintiff’s veins will cause Plaintiff unnecessary psychological suffering in violation of the Eighth Amendment to the United States Constitution. CLAIM T- - deliberate indifference for not having guaranteed means of accessing
Plaintiff’s veins 476. Defendant’s failure to have a guaranteed means for accessing Plaintiff’s veins evinces deliberate indifference towards known medical needs in violation of the Eighth Amendment to the United States Constitution.
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CLAIM U - - maintaining life if a stay of execution is granted after the first or second chemical is administered.
477. Defendants’ failure to have the proper equipment, chemicals, and personnel available at the execution chamber in case a stay of execution is granted after the first or second chemical is administered constitutes the arbitrary deprivation of life in violation of the Eighth Amendment and violates substantive due process. CLAIM V - - deliberate indifference involving maintaining life if a stay of execution
is granted after the first or second chemical is administered. 478. Defendants’ failure to have the proper equipment, chemicals, and personnel available at the execution chamber in case a stay of execution is granted after the first or second chemical is administered is deliberate indifference towards known medical needs in violation of the Eight Amendment to the United States Constitution. CLAIM W - - deliberate indifference for lack of training in emergency cardiac life
support 479. Defendants’ failure to adequately train its personnel in reversing the effects of the chemicals and in emergency cardiac life support is deliberate indifference towards known medical needs in violation of the Eighth Amendment to the United States Constitution because despite knowing that a stay of execution could be granted after the first or second chemical is administered, Defendants have done nothing to ensure that their execution team is adequately trained to maintain Plaintiff’s life if such a stay is granted.
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CLAIM X - - deliberate indifference for not seeking medical advice on what equipment, chemicals, and personnel are necessary to maintain life after the first or second chemical is injected.
480. Defendants’ reliance on their general counsel, who is not a medical professional to inform them of what chemicals, personnel, and equipment is necessary to maintain life after sodium thiopental or pancuronium bromide is injected, rather than consulting medical professionals experienced with these chemicals, is deliberate indifference towards known medical needs, in violation of the Eighth Amendment to the United States Constitution.
CLAIM Y - - Refusal to provide Plaintiff with execution protocols. 481. Defendants’ refusal to provide Plaintiff with a complete copy of the electrocution and lethal injection execution protocols deprives Plaintiff of federal due process and fundamental fairness because it prevents them from making a meaningful choice between methods of execution as permitted under Kentucky law, and because it prevents them from reviewing the execution procedures to determine if additional constitutional violations may exist for which they are currently unaware.
CLAIM Z- - electrocution as mutilation. 482. Execution by electrocution is unconstitutional because it mutilates the body in violation of the Eighth Amendment to the United States Constitution.
CLAIM AA - - electrocution as inherent pain 483. Execution by electrocution violates the Eighth Amendment to the United States Constitution because pain is inherent in the method of execution.
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CLAIM BB - - electrocution and the risk of pain 484. Execution by electrocution creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
CLAIM CC - - electrocution violates evolving standards of decency 485. Execution by electrocution is contrary to evolving standards of decency and thus violates the Eighth Amendment to the United States Constitution.
VIII - - PRAYER FOR RELIEF 486. Plaintiff requests a temporary restraining order and a preliminary injunction barring Defendants from carrying out Plaintiff’s execution during this lawsuit. 487. Plaintiff requests a temporary restraining order and a preliminary injunction barring Defendants from carrying out Plaintiff’s execution in the manner they currently utilize for carrying out lethal injections. Plaintiff also seeks an order declaring that Defendants’ current chemicals and procedures for carrying out lethal injections violate the Eighth Amendment. 488. Plaintiff requests a temporary restraining order and preliminary injunction barring Defendants from carrying out his execution until they come up with a reasonable, humane means for guaranteeing venous access during his execution. 489. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that does not administer an analgesic. Plaintiff also seeks an order declaring that the failure to administer an analgesic during the lethal injection process violates the Eighth Amendment.
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490. Plaintiff requests a temporary restraining order and a preliminary injunction barring Defendants from forcibly medicating Plaintiff with Valium prior to his execution. Plaintiffs also request an order declaring that administering Valium when using sodium thiopental violates the Eighth Amendment to the United States Constitution.
491. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that utilizes sodium thiopental. Plaintiff also seeks an order declaring that the use of sodium thiopental in lethal injections violates the Eighth Amendment to the United States Constitution.
492. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that utilizes pancuronium bromide. Plaintiff also seeks an order declaring that the use of pancuronium bromide in lethal injections violates the Eighth Amendment to the United States Constitution.
493. Plaintiff requests a temporary restraining order and a preliminary injection barring Defendants from carrying out his execution by a lethal injection process that utilizes potassium chloride. Plaintiff also seeks an order declaring that the use of potassium chloride in lethal injections violates the Eighth Amendment to the United States Constitution.
494. Plaintiff seeks an order declaring that Defendants’ failure to consider using alternative chemicals in lethal injections constitutes deliberate indifference in violation of the Eighth Amendment to the United States Constitution.
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495. Plaintiff requests a temporary restraining order and preliminary injunction barring Defendants from executing him by lethal injection unless Defendants inject the chemicals directly into his vein.
496. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiff’s execution without adequate procedures for monitoring for the ability to feel pain prior to and during the injections of pancuronium bromide and potassium chloride. Plaintiff also seeks an order declaring that Defendants’ failure to monitor for the ability to feel pain prior to and during the injections of pancuronium bromide and potassium chloride violates the Eighth Amendment to the United States Constitution.
497. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiff’s execution unless an anesthesiologist monitors for consciousness throughout the execution, and unless the anesthesiologist can take remedial measures to stop Plaintiff from feeling pain if the anesthesiologist determines that Plaintiff is in pain at any point during the execution.
498. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from inserting an I.V. in the groin and an order declaring that inserting an I.V. in the groin violates the Eighth Amendment to the United States Constitution.
499. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from attempting to insert an I.V. into Plaintiff for more than 20 minutes and an order declaring that attempting to insert an I.V. for more than 20 minutes violates the Eighth Amendment to the United States Constitution.
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500. Plaintiff seeks a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiff’s execution until Defendants have the proper equipment for maintaining life after sodium thiopental and pancuronium bromide have been injected, and until Defendants have properly trained individuals to operate that equipment. Plaintiff also seeks an order declaring that Defendants’ current equipment for maintaining life after the injection of sodium thiopental and pancuronium bromide is injected is insufficient to maintain life, and that their failure to have the proper equipment at the execution chamber violates the Eighth Amendment to the United States Constitution.
501. Plaintiff requests a temporary restraining order and preliminary injunction barring Defendants from carrying out Plaintiff’s execution until they have been provided with a copy of the lethal injection and electrocution protocols and given adequate time to review the protocols. Plaintiff also seeks an order declaring that the failure to disclose the execution protocols violates due process and fundamental notions of fairness.
502. Plaintiff requests an order declaring that execution by electrocution violates the Eighth Amendment to the United States Constitution.
503. Plaintiff requests such further relief that this Court finds necessary.
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March 19, 2007.

RESPECTFULLY SUBMITTED,
/s/ David M. Barron __________________________ DAVID M. BARRON Assistant Public Advocate Ky. Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
COUNSEL FOR ROGER DALE EPPERSON

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 Case: 3:06-cv-00022-KKC Doc #: 146 Filed: 04/18/07 Page: 1 of 42 - Page ID#: 2498

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

ELECTRONICALLY FILED

____________________________________

)

BRIAN KEITH MOORE, and

)

)

JEFFREY LEONARD

)

)

Plaintiffs

)

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON,

)

Warden, Kentucky State

)

Penitentiary, Eddyville Kentucky, )

)

SCOTT HAAS

)

Medical Director for the

)

Kentucky Department of Corrections )

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

)

and

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

CIVIL ACTION # 3:06-CV-22 CAPITAL CASE

BRIAN KEITH MOORE’S MEMORANDUM OF LAW ON WHETHER HIS “BAD VEINS” PREVENT HIS EXECUTION AND WHETHER THE STATUTE OF LIMITATIONS BARS HIS CLAIMS

In compliance with this Court’s March 30, 2007 Order, Brian Keith Moore files this brief

explaining that his allegations concerning the lethal injection chemicals not remaining in his

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veins neither argue that his execution cannot take place nor transform his complaint into a habeas petition, and that his claims are not barred by the statute of limitations.1
ARGUMENT Moore’s allegations, in his complaint, that the lethal injection chemicals are not likely to remain in his veins and that this will cause excruciating pain may be inartfully worded. But these allegations do not mean that Moore is claiming that his execution by lethal injection is foreclosed by any means. Rather, as discussed in detail below, Moore’s complaint alleges that there are complications with carrying out his execution by lethal injection that do not exist when executing people who do not suffer from compromised veins. Because these complications are foreseeable, Defendants have a heightened obligation to take steps to lessen the risk of these complications and to take remedial actions if these complications occur. If Defendants do not take action to prevent this risk, it is likely that the spectacle of the horrific execution of Angel Diaz in Florida will take place in Kentucky. It took 34 minutes for Diaz to die, because the I.V.s punctured the veins, sending the chemicals into Diaz’s tissue. This caused it to take longer than normal for the chemicals to circulate throughout the body and for the chemicals to have the desired effect. It also caused Diaz to suffer twelve-inch chemical burns on both arms. This all occurred in someone who does not have compromised veins, as Moore does. The fact that Moore suffers from compromised veins substantially increases the likelihood that the horror that was Diaz’s execution will occur in Kentucky during the execution of Moore.
1 Because neither the “bad veins” issue nor the affirmative defense of statute of limitations applies to Jeffrey Leonard, his status as an intervenor in this case should allow this case to proceed forward on his behalf, regardless of whether this Court dismisses Moore’s Complaint. See, Diamond v. Charles, 476 U.S. 54, 68 (1986); Willis v. Gov’t Accountability Office, 448 F.3d 1341, 1344 (6th Cir. 2006); Allgeier v. Boldrick, 909 F.2d 869, 875 (6th Cir. 1990); Horn v. Eltra Corp., 686 F.2d 439, 440 (6th Cir. 1982); Kelly v. Carr, 691 F.2d 800, 806 (6th Cir. 1980). For the same reasons, if this Court dismisses Moore’s Complaint, Roger Epperson should be allowed to intervene and proceed with the litigation in this case as long as he satisfies the requirements for intervention under the Federal Rules of Civil Procedure.
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All of this can easily be avoided if Defendants become adequately trained and prepared for such a situation and learn how to insert a central line, which guarantees venous access in a person with compromised veins and eliminates the risk that the veins will blow. the moment, however, unlike nearly all other states that carry out executions by lethal injection, Defendants have no contingency plan for inserting an I.V. when it cannot be done through peripheral access. Having a contingency plan and using it immediately in someone with bad veins increases the likelihood that the veins will not rupture and that the chemicals will remain in the vein. In addition, adequately trained individuals should be able to easily recognize when the chemicals do not enter or remain in the veins and immediately take action to ensure that an anesthetic is administered to guarantee unconsciousness, and then inject the chemicals through a different location in the body, without creating additional unnecessary pain. All of these remedial steps can be taken while still carrying out Moore’s execution in conformance with the Eighth Amendment.
The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment, and the United States Supreme Court has interpreted that in terms of unnecessary risk of pain and suffering. Of course, some pain is inherent in carrying out an execution. Perhaps, for someone with medical complications, like Moore, the risk of pain acceptable under the Eighth Amendment is greater. But, the Eighth Amendment requires Defendants to take steps to lessen the risk of unnecessary pain. This can easily be done by using one of the many forms of central venous access that most Department of Corrections are ready to perform during every execution, just in case peripheral access cannot be obtained. Because this solution can be accomplished with little to no difficulty, does not require a statutory amendment, does not require participation of a doctor, and will allow Moore’s execution to proceed without the risk of
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pain and suffering associated with using peripheral access as the means for inserting an I.V. into a person with compromised veins, Moore’s complaint does not argue that his execution can never be carried out by lethal injection by any means. Rather, with additional training and procedures, the I.V. can be asserted with little to no risk of pain and suffering.
If this Court construes Moore’s compromised veins claim as challenging the sentence itself and thus considers the claim to be a habeas petition, this Court must isolate the claims that are only cognizable in a habeas petition from the claims that are properly before this Court in a 42 U.S.C. §1983 action. This Court must then dismiss the habeas claims, but allow the claims that are properly presented in a §1983 action to proceed.
Once this Court rules that Moore’s claims are cognizable in this action, this Court must address the application of the statute of limitations. Because Moore is requesting equitable relief rather than damages, the applicable statute of limitations for §1983 suits does not apply. Rather, the claim is only subject to the equitable defense of laches.
Should this Court apply the one-year statute of limitations for personal injury actions under state law, the statute of limitations did not begin to run until Moore should reasonably have known of the information necessary to bring each of his claims and could have brought the suit and obtained relief. As explained below, this did not take place until the state court lethal injection trial. In addition, because of Defendants’ unwillingness to disclose information concerning how it carries out executions, numerous aspects of this case only became known on a piecemeal basis, which means that the statute of limitations may have begun to run at different points for different claims within Moore’s complaint. In other words, a ruling that some claims are barred by the statute of limitations does not necessarily foreclose other claims.
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As explained below, Moore’s claims do not foreclose his execution by lethal injection, thereby allowing all his claims (or at least some of his claims) to proceed in this §1983 action. Further, the statute of limitations does not apply at all, but even if this Court rules otherwise, it does not preclude this Court from reaching the merits of Moore’s claims. I. Because Moore’s complaint does not allege facts that would prevent his execution by
lethal injection, his complaint is properly before this Court as a 42 U.S.C. §1983 suit. Moore first explains why his claims concerning compromised veins do not allege that his execution cannot be carried out under any circumstance. In case this Court rules against him on this issue, Moore also explains that this Court cannot dismiss the entire suit because one claim is only cognizable in a habeas action. Instead, this Court must dismiss those claims and allow the rest of the claims to proceed. A. Moore’s allegations that the chemicals will likely not remain in his veins if
the chemicals are injected via peripheral access and cause excruciating pain does not foreclose Moore’s execution by lethal injection. In the March 30, 2007 Order, this Court expressed its concern that, on the limited information before this Court, the following three paragraphs in Moore’s complaint mean that his execution by lethal injection could not be carried out without violating the Eighth Amendment prohibition against cruel and unusual punishment: 1) A person with bad veins likely will not be able to handle the flow of the
lethal injection chemicals, causing the veins and other blood vessels to blow;
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2) Because of Plaintiff’s bad veins,2 even if Defendants are able to insert an I.V. into Plaintiff, the chemicals likely will not remain in his veins; and,
3) If the chemicals do not remain in Plaintiff’s veins, Plaintiff will suffer an excruciatingly painful death.
[Record 139 at 33.]. Admittedly, these statements could be more coherently written. These allegations were meant to only apply when an I.V. is inserted via peripheral access, which is the only means called for in Defendants’ execution protocol.3 As explained by the attached declaration from Dr. Mark Heath, an Assistant Professor of Clinical Anesthesiology at Columbia University in New York City, the problems with the chemicals remaining in Moore’s veins are likely to take place only when peripheral access is attempted, rather than a percutaneous procedure or some other form of central access.4 Thus, as explained below, if Defendants take proper remedial actions, they should be able to carry out Moore’s execution, despite his bad veins, without violating the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.5
Dr. Heath states “to a reasonable degree of medical certainty that it is possible to achieve I.V. access to a person with compromised peripheral veins” in a manner that will result in a “humane execution,”6 by inserting a central line.7 A central vein “is one of the large vessels close to the heart like the internal jugular vein, the subclavian, or the femoral vein. Central veins
2 Defendants strenuously dispute the fact that Moore suffers from compromised veins. See, e.g., Record No. 38, Answer to Moore’s Complaint, denying the fact that Moore suffers from bad veins. This creates an issue of fact that should be decided by this Court after hearing testimony on the issue. 3 Exhibit 15 (2006 Execution Protocol). 4 Exhibit 1 (Heath. Decl.). Dr. Heath’s curriculum vitae is attached as exhibit 2. 5 Moore only addresses the issue of the chemicals remaining in his veins. This section should not be construed as a waiver of the other allegations/claims presented in Moore’s complaint. 6 Exhibit 1 (Heath. Decl., para. 19). 7 Id. at para. 13.
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are typically larger, more robust, vessels than peripheral veins.”8 Central venous access is usually “achieved by placing a percutaneous central line, which means placing an IV catheter by tunneling the catheter under the skin to reach the central vein.”9
According to Dr. Heath, “[i]f a person has compromised peripheral veins, placing an I.V. in those limbs is medically contraindicated” for the reasons expressed in Moore’s complaint.10 In other words, inserting an I.V. into the peripheral veins of a person with “bad veins” can blow the vein, causing the release of the chemicals into the muscle or tissue, which would be excruciatingly painful.11 “Simply because peripheral IV access is not possible or prudent, however, does not mean that IV access cannot be achieved.”12
The medically appropriate technique for achieving venous access to a person with compromised peripheral veins is to use percutaneous placement of central venous catheters, which entails placement of an I.V. catheter by tunneling under the skin to reach a central vein.”13 The risk of a blown vein causing chemicals to not remain in the vein is substantially lessened when central venous access is used instead of peripheral access. As Dr. Heath states, “because central veins are larger and closer to the heart than peripheral veins I.V. drug delivery through those veins is far less prone to extravasation or infiltration than is drug delivery through peripheral venous access in a person with compromised veins,14 and “is the medically appropriate form of venous access for a person with compromised peripheral veins and, if appropriately performed, could be used to achieve a humane execution.”15 Defendants could almost guaranteedly prevent Moore’s veins from blowing as a result of his compromised veins
8 Id. at para. 13. 9 Id. at para. 14. 10 Id. at para. 20. 11 Id. at para. 22. 12 Id. at para. 21. 13 Id. 14 Id. at para. 15, 22. 15 Id. at para. 22.
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and the resulting leak of the chemicals into his tissue and muscle by resorting to a central line, such as a percutaneous procedure, for inserting the lethal injection chemicals. At a minimum, doing so, will lessen the risk of pain and suffering and risks associated with injecting the chemicals into a person with “bad veins” via peripheral access to a negligible level that cannot rise to the level of cruel and unusual punishment.
The problem is that Defendants are not prepared for this and, despite being put on notice of the possibility of complications executing Moore by inserting an I.V. peripherally, Defendants have taken no steps to prepare for this situation or to learn how to insert a central line. As an alternative to peripheral access, most states are prepared to perform central venous access and have information concerning this in their execution protocols.16 Defendants, however, are not prepared to do so.
Although Defendants recognize the possibility that a central venous line may be necessary to access a vein and is a viable option, as evidenced by the fact that central venous line is mentioned on the Lethal Injection IV Site Placement form used for the execution of Eddie Harper in Kentucky,17 they concede that they are currently not qualified to insert a central venous line. The following exchange took place during the deposition of Glenn Haeberlin, who was the Warden at the Kentucky State Penitentiary at the time of the state court lethal injection litigation on behalf of Baze and Bowling:18
16 Id. at para. 23. 17 Exhibit 19 (Lethal Injection IV Site Placement form for the execution of Edward Harper on May 25, 1999). This form was disclosed to undersigned counsel Barron during discovery in Baze et al. v. Rees et al., No. 04-CI-1094 (Franklin Cir. Ct.). 18 The Kentucky State Penitentiary is the prison where Defendants carry out executions. Since the trial in the Baze case, Haeberlin has retired and been replaced by Thomas Simpson.
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SHOUSE:
HAEBERLIN: SHOUSE:
HAEBERLIN: SHOUSE:

Uh, what would you do if you couldn’t find a vein on the inmate?
Well, not ever?
The execution is ready to proceed and you can’t find it.
Uh,
you personally.

HAEBERLIN:

Well, it, I, I, guess if it came to we were unable to site an I.V. uh, I guess it would my duty to step outside the chamber uh, and, advise my counsel and the Attorney General’s Office that we were unable to site.

SHOUSE:

And then what?

HAEBERLIN:

That’s a good question, I, I, I don’t know the answer to that.

SHOUSE:

OK.

HAEBERLIN:

I mean at that point in time it would be uh, a decision that would be made by an entity above me.

SHOUSE:

Are there provisions and protocol for such a, occurrence?

HAEBERLIN:

No.

SHOUSE:

OK, uh, are there provisions and protocol for a cut down procedure?19

HAEBERLIN:

Uh, specifically, no.

SHOUSE:

How about not specifically?

HAEBERLIN:

At this point in time, uh, we’re, we’re not in a position to do that.

19 A cut-down procedure is a form of central venous access.

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SHOUSE:

Alright. Would um, would medical people be consulted if you couldn’t find a vein, or just the Attorney General and the uh, your General Counsel?

HAEBERLIN:

I mean as far as I’m concerned the people I’ve, so it would be my counsel and the Attorney General’s Office.20

At this point, the deposition turned to a different issue. This exchange makes clear that,

as late 2004, Defendants did not have a plan for a situation such as the one that exists here,

where the inmate suffers from compromised veins, and do not know how to insert a central line -

- a procedure that would lessen the risk of pain and suffering during the execution of a person

with compromised veins and a procedure that could be performed with little to no risk that the

chemicals will not remain in Moore’s veins. Rather than learn how to insert a central line,

Defendants have affirmatively chosen to do nothing.

In December 2004, Defendants revised their execution protocol to address the situation

where venous access could not be obtained through the peripheral veins. Defendants, however,

did not create a provision to guarantee venous access by using a central line. Instead, they added

a provision saying, “[i]f the IV team cannot secure one (1) or more [IV] sites within one (1) hour,

the Governor’s Office shall be contacted by the Commissioner and a request shall be made that the execution be scheduled for a later date.”21 This provision remains part of the current execution protocol.22 If the Governor calls off the execution, the execution team will practice

more and re-attempt the same thing. It remains unknown what will happen if the Governor

refuses to call off the execution.

20 Exhibit 20 (Excerpts of Deposition of Warden Glenn Haeberlin in Baze et al. v. Rees et al., No. 04-CI-1094, at 4142). 21 Exhibit 11 (Notice of filing of Updated Redacted Execution Protocol in Baze et al v. Rees et al., No. 04-CI-1094 with 2004 Revised Execution Protocol attached). 22 Exhibit 15 (2006 Execution Protocol).

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Defendants also have no plans to deal with a situation where peripheral access is undertaken but a vein blows. At that point, if another vein cannot be located quickly, central venous access is necessary and is the only way to prevent an excruciatingly painful death Defendants’ failure to adequately anticipate the situation of accessing veins in a person with compromised veins, and failure to learn how to insert a central line (such as percutaneous procedure) if peripheral venous access should not be attempted, cannot be obtained, or if the vein blows during the execution and another suitable vein cannot be quickly located, shows deliberate indifference towards Moore’s medical condition and creates an unnecessary risk of pain and suffering, in violation of the Eighth Amendment to the United States Constitution. This is particularly so because Defendants could learn how to insert a central line, as nearly all Departments of Corrections responsible for carrying out lethal injections have done.
“Although it is absolutely necessary that a person performing the mechanical act of central line access be appropriately trained, experienced, and skilled, it is not always necessary for that person to be a credentialed medical doctor.”23 In other words, it is the training and skill of the person inserting the central line, not the title the person possesses or whether “MD” appears after the person’s name, which determines whether a person can successfully insert a central line. In fact, Dr. Heath is personally aware of one execution where a central line was successfully inserted by a non-physician for the purpose of creating venous access.24 If adequate training is provided, a non-doctor could, likewise, insert a central line, via a percutaneous procedure or another form of central venous access, in Kentucky lethal injections.
As discussed above, there is a simple way to alleviate the problem that Moore’s compromised veins make it likely that the veins or blood vessels will blow, causing the
23 Exhibit 1 (Heath Decl., para. 25). 24 Id. at para. 17.
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chemicals to not remain in the vein and Moore to suffer an excruciatingly painful death. The simple way is to insert the I.V. (and thereby inject the chemicals) through central venous access rather than peripheral access. By doing so, Defendants will have a guaranteed means of accessing Moore’s veins that will either eliminate or render negligible the likelihood that Moore’s veins will be unable to handle the flow of the lethal injection chemicals, causing the veins and other blood vessels to blow and Moore to suffer excruciating pain as the chemicals seep into his tissue and muscle. Because Defendants could insert the I.V. and chemicals through a central line, as numerous states other than Kentucky are prepared to do, without amending Kentucky’s lethal injection statute (K.R.S. 431.220), Moore’s allegations concerning the lethal injection chemicals not remaining in his veins (which is limited to when the I.V. is inserted by peripheral access), do not mean that Defendants cannot carry out his execution by lethal injection by any means. Thus, the allegations in Moore’s complaint concerning the chemicals not remaining in his veins and the rest of the allegations in his complaint are properly before this Court as a civil action (conditions of confinement suit) under 42 U.S.C. §1983.25
B. Where a complaint contains claims that are jurisdictionally barred and claims that are properly before a court, the court must dismiss the barred claims and adjudicate the claims that are properly before the court.
In the March 30, 2007 Order, this Court expressed its belief that “Moore’s claims collectively foreclose his execution by lethal injection by any means, which would require dismissal of his complaint under 28 U.S.C. §2244(b).” [Record No. 139 at 33]. Dismissing Moore’s suit on this basis is prohibited by United States Supreme Court law on what to do with §1983 actions that contain “good” and “bad” claims.
The United States Supreme Court addressed this exact situation less than three months ago in a case arising out of the Sixth Circuit. Jones v. Bock dealt, in part, with whether a §1983
25 See, Hill v. McDonough, 126 S.Ct. 2096 (2006); Nelson v. Campbell, 541 U.S. 637 (2004).
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action must be dismissed where exhaustion of administrative remedies under the Prison Litigation Reform Act had been accomplished for some, but not all, of the claims. The Sixth Circuit held that the entire action must be dismissed if any one claim is not properly before the court, but the United States Supreme Court held otherwise.26
In deciding this issue, the Jones Court noted that it has “never heard of an entire complaint being thrown out simply because one of several discrete claims was barred by the statute of limitations, and it is hard to imagine what purpose such a rule would serve.”27 Instead of disposing of the entire complaint, “if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad. Only the bad claims are dismissed; the complaint as a whole is not.”28 If this Court believes that Moore’s allegations concerning his “bad veins” and the pain that will be caused if the chemicals do not remain in his veins challenge his sentence on its face and thus lies in habeas corpus, this Court must dismiss that claim but doing so does not mean that the entire suit must be dismissed.
Rather, this Court must both look at each claim individually and, under Hill v. McDonough,29 consider the request for relief. As this Court recognized, [Record No. 139 at 33], “[i]f the relief sought would foreclose execution, recharacterizing a complaint as an action for habeas corpus might be proper.”30 Together, Hill and Jones stand for the proposition that the focus should be on the request for relief and that individual claims that are properly before the court must be allowed to proceed even if other claims must be dismissed for lack of
26 Jones v. Bock, 127 S.Ct. 910, 923-24 (2007). 27 Id. at 924. 28 Id.; see also, Exxon Mobil Corp. v. Allapatah Services, Inc., 545 U.S. 546, 560-63 (2005) (holding that the district court had jurisdiction over a civil action even if it might not have jurisdiction over each separate claim comprising the action); Chicago v. International College of Surgeons, 522 U.S. 156, 166 (1997) (holding that the district court had jurisdiction over a civil action removed to federal court even if every claim did not satisfy the jurisdictional prerequisites). 29 126 S.Ct. 2096 (2006). 30 Id. at 2101 (emphasis added).
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jurisdiction.31 Analyzing Moore’s claims in this manner requires this Court to recognize that, at a minimum, some of Moore’s claims are properly before this Court and thus those claims must be allowed to proceed.
The prayer for relief in Moore’s complaint requested a temporary restraining order and a preliminary injunction barring Defendants from the following and requested a declaratory judgment that the following is unconstitutional:
1) carrying out Moore’s execution during this lawsuit; 2) carrying out Moore’s execution in the manner they currently utilize for carrying out
lethal injections; 3) carrying out his execution until they come up with a reasonable, humane means for
guaranteeing venous access during his execution; 4) carrying out his execution by a lethal injection process that does not administer an analgesic. 5) forcibly medicating Moore with Valium prior to his execution. 6) carrying out his execution by a lethal injection process that utilizes sodium thiopental. 7) carrying out his execution by a lethal injection process that utilizes pancuronium bromide.
31 Support for not dismissing the entire case if some claims are properly before this Court is also found in Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the United States Supreme Court held that the total exhaustion requirement in habeas petitions (the Jones Court expressly rejected the concept of total exhaustion in §1983 actions) does not require dismissal of an action when a claim is not properly before a court. Rather, “if a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief.” Id. at 279. Rather than dismiss the entire lawsuit, if this Court does not follow the Jones/Hill line of reasoning argued above, this Court should allow Moore to delete the claims/allegations that this Court concludes are not cognizable in a §1983 suit and allow the rest of the claims to proceed.
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8). carrying out his execution by a lethal injection process that utilizes potassium chloride.
9). carrying out Moore’s execution by lethal injection unless Defendants inject the chemicals directly into his vein.
10). carrying out Moore’s execution without adequate procedures for monitoring for the ability to feel pain prior to and during the injections of pancuronium bromide and potassium chloride.
11). carrying out Moore’s execution unless an anesthesiologist monitors for consciousness throughout the execution, and unless the anesthesiologist can take remedial measures to stop Moore from feeling pain if the anesthesiologist determines that Moore is in pain at any point during the execution;
12). inserting an I.V. in the groin; 13). using a cut down procedure; 14). attempting to insert an I.V. into Moore for more than 20 minutes; 15). carrying out Moore’s execution until Defendants have the proper equipment for maintaining life after sodium thiopental and pancuronium bromide have been injected, and until Defendants have properly trained individuals to operate that equipment. [Record No. 1 at 59-62]. Moore also sought an order declaring that Defendants’ failure to consider using alternative chemicals in lethal injections constitutes deliberate indifference in violation of the Eighth Amendment to the United States Constitution. Id. None of the above requests in Moore’s prayer for relief asks that Defendants not execute him or ask for a finding that his execution could not take place by lethal injection. Rather, he merely complains about particular aspects of the chemicals and procedures Defendants intend to
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use to carry out his execution and request that the execution not be permitted until these procedures are changed. Moore also does not request a permanent injunction barring his execution by lethal injection. All of this demonstrates that the relief requested would not foreclose Moore’s execution. Because Hill only allows the entire suit to be dismissed if the relief sough forecloses execution, the fact that the relief Moore requests (at a minimum, some of the relief requested) does not foreclose his execution, Hill prevents this Court from automatically dismissing the entire suit if this Court believes that Moore’s allegations that the chemicals will not remain in his veins and that this will cause excruciating pain transform this claim into a habeas claim. Instead, this Court must move on to the Jones analysis of the individual claims.
Doing so here is much easier than in most lethal injection cases. Not only has Moore laid out his request for relief in numerous, separate paragraphs requesting distinct forms of relief, but he has also broken down his complaint into a large number of subparagraphs laying out distinct allegations that can easily be parceled out and separated from the rest of his complaint. As this Court identified in its March 30, 2007 Order, Moore’s claims include amongst other claims: 1) challenges to the execution team members’ training; 2) challenges to the use of the chemicals administered; 3) the failure to monitor for consciousness before the third drug is administered; 4) the absence of adequate life-saving equipment if a last minute stay of execution is granted; and 5) problems inserting the I.V. [Record No. 139 at 32]. This Court has correctly acknowledged that these claims, individually, are properly before this Court under §1983 because any constitutional violations in this regard can be corrected by more training, the acquisition of better or additional equipment, changes to the composition, amount, or method of injection of the chemicals, or by using the percutaneous procedure of accessing Moore’s veins. Id. at 32-33. Thus, these claims belong in a §1983 action, not a habeas action. Because of this, under Hill and
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Bock, this Court must allow these claims to go forward regardless of whether this Court rules
that the claim involving the chemicals not remaining in Moore’s veins lies in habeas.
II. Moore’s claims are not barred by the one-year statute of limitations applicable to 42 U.S.C. §1983 actions seeking damages.
Moore’s claims are not barred by the statute of limitations for two reasons: 1) the statute
of limitations does not apply to purely equitable claims; and, 2) even if the one-year statute of
limitations under Kentucky law is applied, Moore’s claims were filed within the statute of
limitations.
A. The statute of limitations does not apply to equitable relief that does not seek damages.
Moore’s complaint is not subject to the affirmative defense of statute of limitations
because his Complaint seeks only declarative and injunctive relief. “Statutes of limitations go to
matters of remedy, not destruction of fundamental rights.”32 It is well settled that where, as here,
a plaintiff seek only equitable remedies, “statutes of limitations are not controlling measures.”33
“Laches, rather than a state statute of limitations governs claims brought to enforce an equitable
right created by Congress.”34 When the relief requested is only a declaratory judgment or an
32 Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945) 33 Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946). 34 Ford Motor Co. v. Catalanotte, 342 F.3d 543, 550 (6th Cir. 2003); accord, State Mut. Life Assur. Co. v. Heine, 141 F.2d 741, 744 (6th Cir. 1944) (holding that the statute of limitations fixes the time limit for filing a claim unless equitable relief is sought, in which the doctrine of laches applies); Freeman v. Cincinnati Gas & Electric Co., 2005 WL 2837466, *2 (S.D. Ohio) (recognizing that “statutes of limitations historically do not control measures of equitable relief”); United States v. American Electric Power Service Corp., 137 F.Supp.2d 1060, 1068 (S.D. Ohio 2001) (ruling that the statute of limitations does not bar a request for injunctive relief, because “[w]hile the doctrine of laches may prevent injunctive relief, statutes of limitations historically do not control measures of equitable relief”); United States v. American Electric Power Service Corp., 136 F.Supp.2d 808, 811 (S.D. Ohio 2001)) (quoting Holmberg that “statutes of limitations are not controlling measures of equitable relief”); Goodman v. McDonnell Douglas, 606 F.2d 800, 805 (8th Cir. 1979), citing, Holmbert, 327 U.S. at 396; Nicholson v. Board of Comm’rs of the Alabama State Bar Ass’n, 338 F.Supp. 48, 53 (M.D. Ala. 1972) (finding that §1983 action raising First Amendment claims not barred by the statute of limitations because plaintiffs sought only injunctive and declaratory relief). The doctrine of laches, which is beyond the scope of the briefing ordered by this Court also does not bar Moore’s suit. Laches bars relief only when the plaintiff is guilty of unreasonable and inexcusable delay that has resulted in prejudice to Defendants, and Defendants have “unclean hands.” Here, Defendants’ actions in refusing to disclose information concerning executions by lethal injections prevent them from having “unclean hands.” Further, as this Court acknowledged in denying an injunction, this lawsuit was filed more than a year ago
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injunction, 42 U.S.C. §1983, the Civil Rights Act, is an example of a statute that creates an
enforceable equitable right where the statute of limitations does not apply. Thus, whether the
statute of limitations applies here comes down to the relief Moore requested in his Complaint.
His Complaint is entitled “Complaint for Declaratory Judgment and Injunctive Relief,”
[Record No. 1] and requests only equitable relief. More specifically, each of the eighteen
paragraphs (other than the paragraph requesting “such further relief that this Court finds
necessary”) requests a temporary restraining order, a preliminary injunction, or a declaratory
judgment that a specific act is unconstitutional. [Record No. 1 at 59-62]. At no point does
Moore request damages or any other form of non-equitable relief. In this regard, Moore’s case is starkly different from Cooey v. Strickland,35 where the Sixth Circuit ruled that a lethal injection
claim was barred by the statute of limitations.
Cooey filed a complaint entitled, “Plaintiff’s Original Complaint for Injunctive and Declaratory Relief, Attorney Fees, and Costs of Suit.”36 In the Prayer for Relief, Cooey expressly requested attorney fees and the expenses of the litigation.37 By doing so, Cooey
requested more than just equitable relief - - he essentially requested damages for Defendants’ alleged unconstitutional behavior and activities.38 This makes Cooey’s complaint materially
different than Moore’s complaint. As the Sixth Circuit recognized by applying the statute of
and no execution warrant has issued. Thus, Defendants are not prejudiced by the timing of the filing of the lawsuit. Laches, as a result, does not bar this suit. But because the doctrine of laches is beyond the scope of the briefing requested by this Court, rather than go into detail on this now, Moore will reserve the argument to present only if this Court requests further briefing on the issue. 35 479 F.3d 412 (6th Cir. 2007). 36 Exhibit 3 (Complaint in Cooey v. Taft, No. 2:04-cv-001156 (S.D. Ohio). Strickland was substituted in as the lead Defendant when he replaced Taft as Governor of Ohio. 37 Id. at 25. 38 To obtain attorney fees under 42 U.S.C. §1988, a party must substantially prevail on the underlying claims. The purpose of this statute when enacted was to get attorneys to take civil rights cases when the plaintiff was too poor to pay the attorney the costs of the litigation. §1988 operated as a way to guarantee Plaintiff attorneys compensation when they prevailed in a case in a way that would not ordinarily provide them the money that other civil cases would provide. By requiring a defendant to pay the costs of litigation when the defendant loses, §1988 requires a finding of “fault,” in the same manner as a tort suit. In other words, it is a form of damages, which transforms a case in equity into a traditional legal claim that is governed by the statute of limitations.
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limitations in Cooey, Cooey’s claims fell within the traditional tort type of claim and thus was governed by the statute of limitations. As mentioned above, Moore’s complaint, however, only requests declaratory and injunctive relief. Thus, unlike Cooey, the statute of limitations does not apply to Moore.
B. Applying the one-year statute of limitations from the time of accrual adopted in Cooey does not bar Moore’s suit.
If this Court rules that Moore’s complaint is governed by the doctrine of statute of limitations even though his suit lies purely in equity, Moore’s complaint is not barred by the applicable statute of limitations. Because § 1983 does not provide its own statute of limitations, the most analogous statute of limitations from the state where the events giving rise to the claim applies.39 In Kentucky, the applicable statute to be used for civil rights claims is the one-year statute of limitations for residual tort claims found in K.R.S. 413.140(1)(a).40 But, when the statute of limitations begins to accrue is matter of federal law.41
As this Court recognized in its March 30, 2007 Order, under the Sixth Circuit’s recent decision in Cooey, “a claim asserting a facial challenge to a method of execution accrues upon the conclusion of direct review of criminal conviction.” [Record No. 139 at 16, n.5, citing, Cooey]. But, when the claim asserts an as applied challenge to the chemicals, procedures, or other specific aspects of lethal injection, under Cooey, the statute of limitations began to accrue when the plaintiff knows or has reason to know the act providing the basis of the injury, which is defined as when the plaintiff should have discovered it through the exercise of reasonable
39 Wilson v. Garcia, 471 U.S. 261, 276-80 (1985). 40 Collard v. Kentucky Board of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). 41 Wallace v. Kato, 127 S.Ct. 1091 (2007); Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007).
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diligence, and could have filed suit and obtained relief.42 As explained below, applying this standard to Moore’s complaint, demands a ruling that all claims in his complaint satisfy the oneyear statute of limitations. But, in case this Court rules otherwise, in subsection b, Moore breaks down the timing of when each particular piece of information was disclosed so that this Court can isolate claims that are barred by the statute of limitations and claims that are not, which under Jones, dicussed supra I (B), must be allowed to proceed.
1. Defendants’ refusal to disclose information about lethal injections in Kentucky and the limited information publicly known about how Defendants carry out lethal injections in Kentucky distinguish Moore’s case from Cooey and require this Court to rule that he filed his action within one year of when he reasonably should have known of his claims.
The Cooey Court found that the statute of limitations had expired for litigating lethal injection claims in Ohio because Ohio had made its execution protocol publicly available for years prior to Cooey’s lethal injection challenge. Specifically, the Cooey Court noted that Cooey’s complaint contained a 2002 letter disclosing the chemical mixture and equipment to be used, and that a law review article written by Professor Deborah Denno explained that as of 2001, Ohio had a vague written policy, but that more specific information was available upon request.43 The Cooey Court also noted that an Ohio newspaper ran an article that contained a nine page Ohio Department of Rehabilitation and Corrections policy on how lethal injections are carried out in Ohio and that the Ohio Corrections sent a follow-up letter later in 2002 explaining in more detail the procedures used by prison personnel in performing lethal injections.44 Based on the wealth of information concerning Ohio’s lethal injection procedures and chemicals that
42 Cooey, 479 F.3d at 421. If this Court rules that the statute of limitations began to run when Kentucky adopted lethal injection in 1998, equitable tolling would result in the same finding that Moore’s claims fall within the applicable statute of limitations. 43 Cooey, 479 F.3d at 417, citing, Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says About Us, 63 Ohio St. L.J. 63 (2002). 44 Id.
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were publicly available and conveyed directly to counsel for Cooey as early as 2002, the Sixth Circuit held that Cooey knew or had reason to know of the facts giving rise to the specific allegations he presented in the instant complaint in 2001, when information concerning lethal injection was publicly available upon request.45 Because Cooey did not file his complaint within two years of this, the Sixth Circuit held that the statute of limitations expired before Cooey filed his complaint.46
Moore’s situation is drastically different than Cooey’s. Kentucky adopted lethal injection as a method of execution in 1998,47 but unlike Ohio, Kentucky refused to release information about the chemicals and procedures it uses in lethal injections. In fact, while Ohio released information concerning its protocol to Professor Denno, including a statement that it had an execution protocol and would release more detailed information upon request, Kentucky did the exact opposite. When Professor Denno inquired of the Kentucky Department of Corrections about Kentucky’s lethal injection protocol, she was informed that, even though Kentucky executed Eddie Harper by lethal injection in 1999, it did not have a lethal injection protocol.48

45 Id. at 422. 46 Id. 47 K.R.S. 431.220. 48 Deborah W. Denno, When Legislatures Delegate Death:

The Troubling Paradox Behind State Uses of

Electrocution and Lethal Injection and What it Says About Us, 63 Ohio St. L.J. 63, 117, tb. 17, tb. 20 (2002). It was

not until December 22, 2004, when Defendants responded to the Request for Production of Documents and

Interrogatories in Baze et al. v. Rees et al., No. 04-CI-1094 (Franklin Cir. Ct.) (exhibit 5, response to production of

documents and interrogatories), that it became known to anyone that Kentucky actually had an execution protocol in

1999. Exhibit 4 (Kentucky Lethal Injection Protocol as of 1999). This protocol establishes a beginning of a pattern

that the Cooey Court expressly stated did not exist in Ohio - - regular modifications to the protocol. According to

the 1999 protocol, it was revised on April 9, 1998, April 19, 1999, and May 14, 1999. Because the protocol is under

seal by court order, when counsel for Baze and Bowling learned of this, they were prohibited from disclosing this

information to attorneys representing other death sentenced inmates. The protocol remains under seal, meaning that

counsel still is unable to disclose this information, and are only able to use it here because Defendants incorporated

the discovery it provided in the Baze case as discovery in this case. Undersigned counsel Barron did not represent

Moore at the time of the Baze and Bowling case. Thus, although he possessed this information through his

representation of Baze and Bowling, he neither could use it at the time for Moore nor disclose it to the attorneys

representing Moore.

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Also, in 2001, Roberta Harding, a Professor at the University of Kentucky School of Law requested a copy of the execution protocol and the names and quantities of the chemicals used to carry out lethal injections in Kentucky. Unlike Ohio, where the Department of Corrections was responsive to Open Records Requests, Defendants refused to disclose any information concerning the protocol or even the chemicals used in lethal injections. Roberta Harding filed an appeal with the Kentucky Attorney General, but it was denied.49 Similarly, in December 2003, an attorney with the Department of Public Advocacy filed an open records request seeking the same information. Once again, Defendants denied the request, refusing to even disclose the names of the chemicals used in lethal injections.50
In July 2004, undersigned counsel, who, at the time, was representing Baze and Bowling, filed another open records request expecting to receive the same response. To his surprise, the Defendants abruptly changed its mind, in August 2004, and disclosed the names and quantities of the chemicals its uses to carry out lethal injections, but it refused to disclose any other information.51 At this point the chemicals became known, marking the earliest point at which the statute of limitations could begin to accrue for any Kentucky death-sentenced inmate, but this does not mean that all Kentucky death-sentenced inmates should have been on notice at that point as to the chemicals Kentucky uses for lethal injections. These death-sentenced inmates cannot be required to anticipate or learn that Defendants had changed their mind on whether to disclose this information and it was speculative on whether the Department of Corrections would disclose the information in future open records requests. As it turned out, and as will be
49 Exhibit 6 (In re Harding/Department of Corrections, No. 01-ORD-247 (2001). 50 Exhibit 7 (December 23, 2003 Response to Open Records Request by Ted Shouse). 51 Exhibit 8 (August 3, 2004 Response to Open Records Request by David M. Barron filed in his capacity as attorney for Ralph Baze and Thomas Clyde Bowling)
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discussed later, Defendants relied on the attorney-client privilege and pending litigation as grounds to refuse to disclose information in future open records request.52
Although the names of the chemicals became available in a limited forum in August
2004, the actual execution protocol, which are the basis for a substantial number of claims in Moore’s complaint,53 did not become available until much later. Defendants even refused to
disclose the execution protocols during the state court lethal injection litigation on behalf of Baze
and Bowling. In fact, it was not until October 25, 2004 that Defendants were ordered to disclose a redacted copy of the protocol to counsel for Baze and Bowling.54 The redacted protocol was disclosed under seal on October 30, 2004.55
This protocol notes that almost the entire protocol, including the portions dealing with the injection of the chemicals and the insertion of the I.V.’s, was revised on November 1, 2002.56
But, these were not the last substantive changes made to the protocol. On December 17, 2004, Defendants filed an updated redacted protocol under seal.57 This version of the execution
protocol - - the third of four versions that undersigned counsel currently know exists - - notes that the entire protocol was revised on December 14, 2004.58 Accompanying the filing of this
protocol was a document requesting that the unredacted protocol remain under seal.
52 Exhibit 9 (April 7, 2006 Response to Open Records Request filed by David M. Barron in his capacity as attorney for Brian Keith Moore). 53 All claims in Moore’s complaint, other than the ones limited to the chemicals Defendants use in lethal injections, either arise out of information in Kentucky’s lethal injection litigation or are substantially supported by information in the protocol. Until the state court lethal injection trial took place, this information was not publicly available for Moore to know or for counsel for Moore to use without potentially violating the sealing order. The state court trial began on April 18, 2005 and concluded on May 2, 2005. Moore filed suit on April 19, 2006 [Record No. 1]. This was within a year of the conclusion of the trial. Applying equitable tolling to the number of days it took for Moore to exhaust his administrative remedies [see Grievance Rejection Notice, attached to Record No. 1 - - the Complaint], as required by law, means that Moore filed his suit not only within one year of the state court trial concluding but within one year of the commencement of the trial. 54 Exhibit 12 (October 25, 2004 Order in Baze et al. v. Rees et al., No. 04-CI-1094 (Franklin Cir. Ct.) 55 Id. 56 Exhibit 10 (2004 Kentucky Execution Protocol). 57 Exhibit 11 (Notice of filing of Updated Redacted Execution Protocol in Baze et al v. Rees et al., No. 04-CI-1094 with 2004 Revised Execution Protocol attached). 58 Id.
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Specifically, Defendants said, “[t]he Defendants object to the disclosure of the redacted portions of the protocol due to this information constituting a threat to security pursuant to KRS 197.025(1), KRS 197.025(6).”59 Each version of Kentucky’s lethal injection protocol remained under seal.
Shortly thereafter, a local newspaper intervened in the Baze litigation for the limited purpose of moving the state circuit court to set aside the order sealing the redacted lethal injection protocols.60 In deciding this motion, the state circuit court noted that the redacted protocol “contain detailed information regarding the location of the drugs used prior to execution, those persons (by title) having access to the drugs, the location of the condemned inmate leading to the execution, and a step-by-step sequential process of the actions taken after receiving an execution including the persons (by title) to complete those tasks and where they are to be performed.”61 The circuit court then agreed with “Defendants that to allow the above information to be released to the public would necessarily result in inmate access to the same information, which then could be used to threaten security and disrupt the execution process.”62 As a result, the circuit court denied the motion to unseal the redacted portion of the execution protocol, concluding “as a matter of law that the protocols remain properly sealed pursuant to KRS 197.025(1).”63
The message stemming from this is clear - - death-sentenced inmates, other than Baze and Bowling, had no right to be informed of the information contained in the execution protocol, and, in fact, were affirmatively being denied access to the information contained in the protocol.
59 Exhibit 13 (Defendants’ Notice of Filing of Unredacted Execution Protocol Under Seal to the Court). 60 Exhibit 14 (Order & Opinion dated Feb. 11, 2005, in Baze et al. v. Rees et al., No. 04-CI-1094 (Franklin Cir. Ct.), at 1). 61 Id. at 2 (emphasis added). 62 Id. 63 Id. at 2-3.
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Further, the circuit court’s ruling originally sealing the protocol and then refusing to lift the sealing order, because it would result in inmate access, prevented counsel for Baze and Bowling from a) disclosing or discussing the protocol with attorneys representing other death sentenced inmates; b) disclosing or discussing the protocols in connection with other clients Baze and Bowling’s attorney represented at the time of the state court litigation or after the trial took place in that case; and, c) using the protocols on behalf of other clients. Thus, even though undersigned counsel Barron (not Thomas or Palombi) represented Baze and Bowling in the state court lethal injection litigation, the sealing order in that case prevented him from using the information in support of any other client who was not a party to that action and for any future clients he obtained after the trial in the Baze case.
Of great importance in this regard is when undersigned counsel Barron undertook representation of Brian Keith Moore. In the March 30, 2007 Order, this Court noted that “Moore offers no explanation for his decision” not to join the litigation filed in state court on behalf of Baze and Bowling and faults Moore because “his counsel in this litigation also represented the inmates in the Baze case.” [Record No. 139 at 7]. Factually, this is not accurate.
Baze and Bowling filed suit in August 2004. The state court trial on the merits began on April 18, 2005 and concluded on May 10, 2005. Undersigned counsel Barron did not begin representing Moore until November 1, 2005.64 Thus, Barron had no authority to join or intervene Moore in the Baze case, and by virtue of the sealing order, Barron was prohibited from discussing the information he obtained from the protocol with counsel for Moore or even advising as to the propriety of intervening/joining the Baze and Bowling litigation. In other words, Defendants affirmatively took steps that were adopted by the circuit court to prevent
64 See, e.g., exhibit 14 (Notice of Substitution of Counsel filed, on November 1, 2005, in Moore v. Simpson, No. 3:99cv-745-R (W.D. Ky.). This was the first action undersigned counsel took on behalf of Brian Keith Moore in any court.
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other inmates from obtaining information contained in the lethal injection protocol that were necessary to raise many, if not all, of the claims in Moore’s complaint. Because Defendants are at fault for both the fact that Moore did not have information necessary to his suit and the attorneys who had the information could not use it on his behalf or share it with those who could, Defendants cannot now claim that the statute of limitations expired before he obtained this information. Thus, this Court must rule that the statute of limitations did not begin to accrue against Moore when Baze and Bowling filed suit. But, this Court still must ascertain when the statute of limitations began to accrue.
The fact that, unlike in Cooey, Defendants still refuse to release the execution protocol to the public prevents the statute of limitations from beginning to accrue. As a federal district court in Oklahoma recognized, an argument can be made that the refusal to publicly disclose the execution protocol prevents the statute of limitations from accruing until the protocol is released.65 Particularly in light of the gravity of the information contained in the protocol and the fact that the sealing order in the Baze case prevented anyone with the information from discussing it with attorneys representing other death-sentenced inmates or using the information on behalf of other clients they represent, this Court should recognized the principle acknowledged by the federal district court in Oklahoma and rule that until Defendants publicly release their execution protocol, the statute of limitations does not begin to run.
If this Court does not recognize that the statute of limitations has yet to begin to run, this Court must determine when the statute of limitations accrued. The possibility of filing an open records request for information concerning lethal injections in Kentucky does not trigger the statute of limitations in this case. As discussed previously, Defendants’ response to requests for the execution protocol and the names of the chemicals used in lethal injections is nothing short of
65 Anderson v. Evans, 2006 WL 83093, *2 (W.D. Okla., Jan. 11, 2006).
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random. At one point, they deny all information, yet when a different attorney requests the same information only a few months later, Defendants released the names of the chemicals. But, they still refused to release the protocol. And, when an Open Records request was filed on Moore’s behalf, it served little to no purpose. Although Defendants released the names of the chemicals, Defendants refused to release any other information, including information that had been disclosed during the discovery process in the Baze case. The reasons for this were: 1) the protocol was sealed by the Franklin Circuit Court in the Baze case; 2) that all documents concerning lethal injections in Kentucky now pertain to civil litigation because of the Baze suit, and thus, Defendants were only obligated to disclose that which is required by the Rules of Civil Procedure (which Defendants appear to interpret as nothing since they only provided the publicly available policies and procedures adopted in conformance with Kentucky’s Administrative Procedures Act and the number of hours of “execution training” that Warden Simpson has received); and, 3) that documents disclosed during the Baze case and any other documents pertaining to how Defendants’ carry out lethal injections are now protected by the “attorneyclient privilege and work product rule as they were utilized by [Defendants] in the Baze litigation.”66
As Defendants’ denial of access to information pertaining to Kentucky lethal injections make clear, Defendants believe that they are entitled to withhold information that was used in the Baze case, are now disclosing less information than was disclosed during the Baze case, believe that the information used in the Baze case cannot automatically be used on behalf of other inmates, and are attempting to hide behind the Baze case to avoid disclosing information. In light of this, it is clear that Moore’s situation is unlike that in Cooey in that Defendants persist in
66 Exhibit 9 (April 7, 2006 Response to Open Records Request filed by David M. Barron in his capacity as attorney for Brian Keith Moore).
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concealing relevant information to litigating the issues presented in this case. As a result, the theoretical possibility that an open records request for the information necessary to file suit would have resulted in Moore obtained the necessary information earlier is nothing more than a theoretical aberration that does not exist in reality. It did not provide the necessary information and would not have had it been filed earlier. Thus, it does not stand for the proposition that the statute of limitations began to run before the information concerning Kentucky’s lethal injection protocol became publicly available.
Admittedly, the media reported on the lethal injection litigation in the Baze case. But, unlike in Ohio, the media was denied a copy of the execution protocol. As a result, until the trial in the Baze case began, the media only had information on the chemicals, rather than the other information for which Moore now takes issue, to report. Thus, Moore cannot be held to have been on constructive notice of his claims because of information provided by the media. In addition, the media reports on the state court lethal injection litigation was sporadic during the seven months of litigation leading up to the trial. Because of this, it is unreasonable to hold that due diligence required Moore to watch media reports on a daily basis in the hope that information may be reported that could be beneficial to his cause.
“The essential question is not whether the relevant information was known by a large number of people, but whether [Moore] should be expected to take actions which would lead him to the information.”67 “Absent some reasonable basis for concluding that the local news is likely to be a source of information at the particular time, due diligence does not require a [deathsentenced inmate] to monitor the news on a regular basis on the unlikely chance that he might
67 Wilson v. Beard, 426 F.3d 653, 662 (3d Cir. 2005).
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learn something which would be useful to his case.”68 Such a reasonable basis does not exist here.
Moore did not know which days over a seven month period were likely to include media coverage concerning lethal injection litigation in Kentucky, and was unable to follow the media due to the fact that he was held in isolation in the “hole,” without access to media reports, during that period of time. Thus, he cannot be held, under the due diligence standard, with constructive knowledge of the information pertaining to many, if not all, of his claims by virtue of limited, undetailed media reports on the issue. Further, even if Moore saw the media reports, it would have done little to put him on notice since the media was denied access to the execution protocol and thus had little to nothing other than the chemicals to report. Thus, mere media reporting on general aspects of Defendants’ lethal injection procedures on a sporadic basis over an extended period of time does not cause the statute of limitations to begin to accrue. Instead, the earliest it can begin is when Moore was both put on notice by the information becoming widely known (or directly conveyed to him) and could file suit and obtain relief. This did not take place until the state court lethal injection trial in the Baze case.
The trial in the Baze case began on April 18, 2005 and concluded on May 10, 2005. During the trial, Defendants’ lethal injection procedures were discussed in detail. The trial was open to the public and, even though the testimony involved numerous aspects of the protocol that were under seal, none of the testimony was placed under seal and the courtroom was never closed. Thus, the state court trial in the Baze case is when the information concerning Defendants’ lethal injection procedures became generally known, constituting the point where Moore should have reasonably known of his cause of action. In other words, because of Defendants’ refusal to publicly release the execution protocol as Ohio has done, the state court
68 Id. at 661.
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trial in the Baze case is the equivalent to the information that was generally disclosed in Ohio in 2001 that the Cooey Court ruled put Cooey on notice of his cause of action.
The state court lethal injection trial in the Baze case also allowed undersigned counsel Barron to discuss the portions of the trial that stated portions of the execution protocol that were under seal. Until the information was publicly stated during testimony at the Baze trial, the information had never been conveyed to the public and was still sealed by the state circuit court. This prohibited undersigned counsel Barron from using the information on behalf of Moore or discussing it with anyone acting on Moore’s behalf. But, when the information was discussed at an open trial, by virtue of the trial, the information was conveyed to the public, freeing undersigned counsel Barron to discuss those aspects of the trial. Barron did that.
On April 19, 2006, Barron, who, at that point, had undertaken the representation of Moore, filed this action. Both in the complaint and as exhibits to the memorandum of law in support of the complaint, Barron relied heavily upon testimony provided at the state court trial and even attached unofficial copies of excerpts of the transcript of testimony at the trial.69 This further supports the reasonable belief held by undersigned counsel Barron that he could not use any of the information he obtained from the lethal injection protocols he obtained in the Baze case for Moore’s benefit until the information was publicly disclosed at trial. Further support for this is found in the Joint Rule 26(f) Report [Record No. 43]. In order to obtain a redacted copy of the execution protocol, undersigned counsel had to agree to the following: “Counsel for plaintiff has agreed not to disclose the protocol to anyone not working on the litigation. The parties agreed that disclosure of the protocol to all attorneys, investigators, and interns working on the case is permissible, but that no one will disclose it to outside parties. Counsel for Plaintiff
69 In Kentucky, the official record of court proceedings is a video tape. There is no written transcript of the trial. Thus, the transcripts of the Baze case that were prepared for litigation in this case are unofficial transcripts.
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has agreed not to discuss the protocol with Brian Keith Moore or any other death-sentenced inmate.” Id. at 4. This statement makes clear that both Defendants and undersigned counsel Barron understood the sealing order to prevent Barron or any other attorney from using the information obtained from the lethal injection protocol disclosed in the Baze case for the benefit of Moore until portions of it was released to the public during the actual trial in the Baze case. Thus, this Court must rule that the statute of limitations for this action began to accrue at the conclusion of the lethal injection trial, May 10, 2005.
Should this Court conclude that the statute of limitations began to run at the beginning of the state court lethal injection trial, Moore’s complaint was still filed within the one year statute of limitations. The statute of limitations is tolled during the period of time during which Moore was exhausting his administrative remedies.70 Moore filed his grievance with the Department of Corrections in accordance with the prison grievance system in March 2006, well before the expiration of the statute of limitations.71 It took five days for Moore to exhaust his administrative remedies.72 Thus, tolling means that Moore had five days beyond the one year to file suit. As discussed above the one year began to accrue no earlier than April 18, 2005. With the five days being added, Moore had to April 23, 2006 to file his suit. Moore filed his complaint on April 19, 2006, which is within the one year statute of limitations. Thus, this Court must rule that Moore filed his claim within the applicable statute of limitations.
As the detailed discussion above explains, Moore’s case is drastically different than Cooey. The Cooey Court relied, in part, on the fact that Ohio had only recently made changes to its execution protocol. By contrast, the state court litigation in the Baze revealed that Defendants not only have an execution protocol, which they denied when asked that by Professor Denno, but
70 Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000). 71 See, Grievance Rejection Notice, attached to Record No. 1 – Complaint]. 72 Id.
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that over the years, they have gone through three versions of the protocol. Many of the sections of these protocols were revised on different dates, suggesting that there may be even more than three versions of the execution protocol in existence. Then, through litigation in this case, Moore learned that Defendants have revised the execution protocol yet again - - this time after the conclusion of the trial in the Baze case.73 The fact that Defendants continue to revise/change its execution protocol means that general knowledge of the chemicals or other aspects of the lethal injection procedures is insufficient to alert Moore to his own specific cause of action because Defendants could have altered the execution protocol after Baze and Bowling filed suit such that a different protocol for which Moore had no objection might apply to his execution.74 Aside from the regular revisions of the execution protocol, Moore’s case is different from Cooey in other substantive regards that are important to determining when the statute of limitations begins to run.
In Cooey, the Ohio Department of Corrections disclosed substantial portions of the protocol to the public and the media. The Ohio Department of Corrections also disclosed substantial amounts of information concerning the protocol in open records requests. By contrast, here, Defendants initially refused to even release the names of the lethal injection chemicals, would not provide the protocol to the public, would not provide the protocol to attorneys representing death sentenced inmates except under seal after litigation has been filed, and have taken steps, successfully, to prevent attorneys from disclosing information obtained through litigation to other attorneys or using it on behalf of other clients. In all regards, the
73 Exhibit 15 (2006 Execution Protocol). 74 Exhibit 17 (Harbison v. Little, No. 3:06-cv-01206 (M.D. Tenn., Jan. 29, 2007), at 10) (ruling that, for purpose of the statute of limitations, Plaintiff’s abstract awareness of the lethal injection of another Tennessee death-sentenced inmate and how the execution was carried out is insufficient to have alerted Plaintiff to his own cause of action because “Tennessee might well have altered the protocol after the Coe execution, such that a different protocol – one to which the plaintiff had no objection – would apply to his execution”).
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information concerning the lethal injection procedures in Kentucky is not publicly or readily available in any where near the manner it is in Ohio. Perhaps, if the information was as available as it was in Ohio, the statute of limitations would have begun to run a long time ago, but that is not the case.
Under Cooey, this Court must rule that the statute of limitations began to run when Moore reasonably should have known of the facts giving rise to his cause action and could have filed suit and obtained relief. The secrecy surrounding executions in Kentucky, which does not exist in Ohio, and the absolute restrictions on attorneys using this information on behalf of deathsentenced inmates who are parties to the action in which the information is obtained, prevent this Court from ruling that the statute of limitations began to run before the information became publicly known and undersigned counsel was able to use it on behalf of Moore. This occurred when the state court lethal injection trial in the Baze case took place. It was at this point that the contents of the lethal injection protocol, which form a substantial portion of Moore’s complaint, became known and undersigned counsel Barron was able to use the information, since the trial allowed sealed information to be discussed in open court. Moore filed suit within one year of this trial (and one year of the beginning of the trial when tolling during the time it took to exhaust administrative remedies is applied). Thus, his action was filed within the one-year statute of limitations that is applicable to this type of action only if this Court rules that the doctrine of statute of limitations applies purely equitable actions.
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2. Because the statute of limitations applies claim-by-claim, a complaint cannot be dismissed on statute of limitations grounds unless each claim within the complaint is barred by the statute of limitations.
If this Court rules that either the statute of limitations applies to this case because Moore is only seeking equitable relief, or that the case, as a whole, was filed outside the one-year statute of limitations, this Court must address each and every claim to determine which, if any, claims were brought within the one-year statute of limitations. The United States Supreme Court “have never heard of entire complaint being thrown out simply because one of several discrete claims was barred by the statute of limitations, and it is hard to imagine what purpose such a rule would serve.”75 Particularly in light of the gravity of the issues presented in this case and the fact that this case has been pending for a year, this case does not serve any imaginable purpose for doing so and should not be the first case the United States Supreme Court hears of where the entire case was thrown out because a claim was barred by the statute of limitations. Rather, this Court must ascertain when the statute of limitations began to run for each individual claim in Moore’s complaint. To do so, this Court must determine when Moore reasonably should have known about the facts giving rise to the claim and could have filed suit and obtained relief.
As discussed, supra II (B)(1), Moore asserts that the entire action was brought within the applicable statute of limitations. But, in case this Court rules otherwise, Moore hereby breaks down the dates on which certain information first became known.
The names of the chemicals were first disclosed in the Baze case in August 2004, but for the reasons discussed in II(B)(1), the timing of this should not impact Moore’s claims. The protocol was never disclosed until November 2004. This date, however, is not important because, as explained previously, Moore could not have obtained the information in the protocol.
75 Jones v. Bock, 127 S.Ct. 910, 924 (2007).
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He received a copy of the protocol on July 13, 2006.76 Other aspects of Moore’s claims became known on an even more piecemeal basis.
It was in the December 2004 revisions to the execution protocol that Defendants inserted a provision requiring the I.V. team to attempt to insert an I.V. for up to sixty minutes before requesting that the Governor call off the execution, so that the I.V. team could practice more and then attempt the same thing. It was these same protocol revisions where the Defendants first adopted minimum qualifications for members of the execution team and where the crash cart was added to the protocol. But, the contents of the items on the crash cart were not disclosed until April 21, 2005.77 Thus, the statute of limitations on Moore’s claim that Defendants failure to have the proper equipment and chemicals available at the execution chamber in case of a last minute stay of execution is granted after the first or second chemical is administered constitutes the arbitrary deprivation of life in violation of the Eighth Amendment and violates substantive due process could not begin to run before April 21, 2005. Because Moore filed suit on April 19, 2006, regardless of how this Court treats the rest of the claims in this case, this Court must rule that this claim was filed prior to the expiration of the statute of limitations, and thus, this Court must adjudicate this claim on the merits.
Finally, Moore has alleged that “Defendants’ failure to conduct medical or scientific tests on the chemicals since August 2004 and their failure to adopt chemicals and procedures in light of the information presented to them since August 2004 shows their deliberate indifference towards known medical needs.” [Record No. 1, Complaint at 34, para. 307. Although, in
76 Exhibit 15 (2006 Execution Protocol). 77 Exhibit 18 (List of chemicals on the Banyan Stat Kit 700). The date on the faxed copy of it is April 21, 2005. Despite traditional discovery in civil cases and pretrial disclosures, the list of chemicals on the crash cart was provided to undersigned counsel Barron, for the first, in open court on April 21, 2005, after a witness had testified the day before that he had purchased a crash cart to comply with the recent protocol revisions and named the crash cart manufacturer.
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hindsight, it could have been expressed more clearly, this allegation includes Defendants’ deliberate indifference for failing to lessen the risk of pain and suffering in light of information they obtained during the state court lethal injection trial in the Baze case. Because the allegation involves information from the state court trial, the statute of limitations on this claim could not begin to run until the state court trial took place. As mentioned previously, the trial began on April 18, 2005 and Moore filed his suit within one year of that. Thus, all claims involving Defendants deliberate indifference for failing to adopt alternative chemicals and procedures in light of the information presented at the state court trial were filed prior to the expiration of the one year statute of limitations and must be adjudicated on the merits by this Court.
While Moore maintains that his entire complaint has been filed within the one year statute of limitations, at an absolute minimum, this Court must rule that the claims involving deliberate indifference for not taking remedial action based on information from the state court trial and the claim regarding Defendants’ failure to have proper equipment and chemicals to maintain life if a last minute stay of execution is granted were filed within the one year statute of limitations. Regardless of what this Court does with the rest of Moore’s claims, under Jones, this Court must adjudicate these claims on the merits since, individually, these claims are properly before this Court.
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CONCLUSION Defendants cannot, consistent with the Eighth Amendment to the United States Constitution, inflict unnecessary pain and suffering solely because a statute requires a particular action. For instance, if Kentucky’s method of execution statute required Defendants to carry out lethal injections by injecting potassium chloride - - one of the most excruciatingly painful chemicals known to society - - the statute would not conform with the Eighth Amendment to the United States Constitution. Hopefully, this Court would not permit such an obvious violation of the cruel and unusual punishment clause to take place solely because a statutory amendment would be required to change it. Likewise, this Court should not permit violations of the cruel and unusual punishment clause to take place solely because Defendants have not figured out a way to carry out the lethal injection without inflicting unnecessary pain and suffering. Fortunately, because Moore’s claims neither present a situation where his execution by lethal injection could never be carried out with violating the cruel and unusual punishment clause nor require a statutory amendment to rectify the constitutional infirmities with the chemicals and procedures Defendants intend to use to carry out Moore’s execution, this Court does not have confront the difficult issue of what to do when it knows cruel and unusual punishment will take place but claim does not squarely fall within the ambit of 42 U.S.C. §1983 claims. With the exception of the three paragraphs concerning the lethal injection chemicals remaining in Moore’s veins, all the claims in his Complaint are clearly properly before this Court as §1983 claims. United States Supreme Court law requires this Court to decide those claims on the merits regardless of whether the claim identified by this Court as possibly lying in habeas is dismissed for lack of jurisdiction because it is not cognizable in a §1983 action. The claim
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concerning the lethal injection chemicals remaining in Moore’s veins, however, is also properly before this Court under §1983.
That claim only involves problems that are likely to take place if Defendants attempt to peripherally access Moore’s veins. Defendants can easily avoid the complications that come with peripheral access in a person with compromised veins by inserting the I.V. through a central line, which does not pose a risk of the chemicals escaping from the veins. Defendants also can lessen the risk of unnecessary pain and suffering by being prepared to insert a central line if peripheral access is unsuccessfully attempted or if the vein blows. A central line can be inserted by a nondoctor, as long as the person doing so has been adequately trained in inserting a central line. Thus, using a central line to access Moore’s veins not only is an alternative to peripheral access that does not pose the same risks, but also does not require participation by a doctor - - which is prohibited by K.R.S. 431.220. As a result, no statutory amendment is necessary to use a central line, meaning that neither reason for construing Moore’s complaint as a habeas petition - - that he is alleging that Defendants could not constitutionally carry out his lethal injection by any means, or that a statutory amendment is necessary to carry out the execution - - apply in this case. Thus, this Court must rule that Moore’s entire complaint is properly before this Court under 42 U.S.C. §1983.
Moore’s action is also not barred by the affirmative defense of statute of limitations. Where the only relief sought is equitable, laches not statutes of limitations are applicable as an affirmative defense. Unlike Cooey, where the death-sentenced inmate sought damages as part of his lethal injection suit and whose claim was held by the Sixth Circuit to be barred by the statute of limitations, Moore only seeks equitable relief in the form of a declaratory judgment and an
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injunction. Thus, his Complaint lies completely in equity, meaning that the statute of limitations is inapplicable to his case.
Even if this Court applies the one year statute of limitations under Kentucky law for personal injury actions, Moore’s claims are not barred by the statute of limitations. Under Cooey, the statute of limitations begins to run when the death-sentenced inmate has reason to know the act providing the basis of the injury, through the exercise of reasonable diligence, and could have filed suit and obtained relief. Because, unlike in Cooey, Defendants have steadfastly refused to publicly release their execution protocol or discuss the contents of the protocol, the statute of limitations arguably has yet to begin to run. But even if this Court determines it has, Defendants’ culpable conduct in depriving Moore of access to the information necessary to many, if not all, of his claims prevents this Court from ruling that his claim is barred by the statute of limitations.
When the execution protocol was released in the Baze case, it was released only to counsel for the two plaintiffs in the action - - Ralph Baze and Thomas Clyde Bowling. The attorneys for Baze and Bowling did not represent Moore at the time, and because the protocol was under seal (mainly for the purpose of preventing other death-sentenced inmates in Kentucky from learning of the contents of the execution protocol), Baze and Bowling’s attorneys were prohibited from discussing the protocol with the attorneys who represented Moore and even prohibited from advising them as to the propriety of joining or intervening in the suit filed on behalf of Baze and Bowling. Undersigned counsel Barron, who represented Baze and Bowling, was prohibited by the sealing order from using the information he obtained while representing Baze and Bowling on behalf of Moore, whom Barron began representing after the state court lethal injection trial in the Baze case. Thus, to obtain the protocol for use on behalf of Moore,
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Barron had to file suit on his behalf and then enter into an agreement that he would not share the protocol with anyone not working on behalf of Moore’s lethal injection suit.
The confidentiality of the execution protocol and the fact that even when an attorney learned of its contents, that attorney could not use it to the benefit of other clients or provide the information to other attorneys representing death-sentenced inmates prevents this Court from ruling that the statute of limitations began to run when Baze and Bowling filed suit, or even at any time during the litigation in that case, prior to the state court trial.
During the state court trial, which began on April 18, 2005 and concluded on May 10, 2005, numerous aspects of Defendants’ execution protocol that were under seal, yet essential to the claims alleged in Moore’s Complaint, were discussed in open court. For practical purposes, this lifted the sealing (gag) order on these portions of the protocol, thereby allowing undersigned counsel Barron to discuss those aspects of the protocol and to use that information on Moore’s behalf. Barron did just that. He filed this suit on April 19, 2006, relying heavily upon information obtained through the state court lethal injection trial in the Baze case and even attaching excerpts from the trial as exhibits.
Because Moore filed his lethal injection suit within one-year of the conclusion of the trial in the Baze case, his suit was filed within the applicable statute of limitations. But, even if this Court rules that he needed to file the suit within one year of the commencement of the trial, the five days that were tolled while Moore was exhausting administrative remedies, renders the timing of the filing of this suit to be within the one year statute of limitations. Thus, if this Court rules that the affirmative defense of statute of limitations applies to this purely equitable action, this Court must rule that Moore’s action is not barred by the one year statute of limitations.
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At a minimum, this Court must rule that his claims regarding deliberate indifference for not taking remedial action based on information learned during the trial in the Baze case and his claims regarding the failure to have adequate equipment and chemicals if a last minute stay of execution is granted were filed within the one year statute of limitations, because the contents of the crash cart were not disclosed until April 21, 2005, and the deliberate indifference claim did not arise until Defendants heard the testimony at the Baze trial. Because the affirmative defense of statute of limitations does not allow a court to dismiss a suit where some claims were filed prior to the expiration of the statute of limitations, at a minimum, this Court must isolate these claims from the rest of the claims in Moore’s Complaint and allow these claims to proceed.
RESPECTFULLY SUBMITTED, /s/ David M. Barron
______________________________ DAVID M. BARRON MARGUERITE NEILL THOMAS Assistant Public Advocates Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
April 18, 2007.
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Case: 3:06-cv-00022-KKC Doc #: 146 Filed: 04/18/07 Page: 42 of 42 - Page ID#: 2539 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was electronically filed with the Court by using the CM/EFC system, on this 18th day of April 2007.
/s/ David M. Barron ___________________________________ COUNSEL FOR BRIAN KEITH MOORE
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 Case: 3:06-cv-00022-KKC Doc #: 154 Filed: 05/17/07 Page: 1 of 29 - Page ID#: 2661

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
FRANKFORT
CAPITAL CASE
ELECTRONICALLY FILED
CIVIL ACTION NO. 3:06-CV-00022-KKC
BRIAN KEITH MOORE, ET. AL

PLAINTIFFS

v.

JOHN D. REES, ET. AL

DEFENDANTS

BRIEF OF APPELLEES ADDRESSING ISSUES IDENTIFIED IN THE COURT’S MEMORANDUM OPINION AND ORDER ENTERED MARCH 30, 2007
______________________________________________________________________________ Come now the Defendants, by and through counsel, and pursuant to the Court’s Memorandum
Opinion and Order entered March 30, 2007 [Docket #139], submit the following Brief addressing the issues identified by the Court.
The Court’s Memorandum Opinion and Order directed the parties to brief two (2) potentially dispositive issues relating to the action. First, the parties were directed to brief the issue of whether Moore’s claims relating to his allegedly compromised veins foreclose any means of executing him using intravenous injection as required by statute in Kentucky, thereby making Moore’s action the functional equivalent of a prohibited successive habeas challenge to his death sentence. Second, the parties were directed to brief the issue of whether Moore’s lethal injection challenge is barred by the running of the statute of limitations under the analysis articulated by Sixth Circuit in Cooey v. Strickland, 2007 WL 623482 (6th Cir. March 2, 2007).

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I. Moore’s Complaint forecloses any means of executing him using intravenous injection as required in Kentucky, thereby making Moore’s action the functional equivalent of a prohibited successive habeas challenge to his death sentence.
In his Complaint, Plaintiff Brian Keith Moore contended that his alleged “bad veins” would
prevent the Department of Corrections from using an I.V. catheter to execute him by lethal injection
without resulting in the risk of pain and suffering that Moore alleged would violate his rights under the Eight Amendment to the United States Constitution and Section 17 of the Kentucky Constitution. 1 It
was not until the Plaintiff was faced with the prospect of having his action dismissed as the functional
equivalent of a prohibited successive habeas challenge that he was willing to concede that central line
access by a percutaneous procedure would satisfy his constitutional concerns posed by his alleged “bad veins.”2 This “shift” in their position is an obvious attempt to avoid dismissal and should be viewed as
disingenuous at best.
In his Memorandum of Law on Whether his “Bad Veins” Prevent his Execution and Whether the
Statute of Limitations Bars his Claims (hereinafter “Plaintiff’s Memorandum”), Plaintiff Moore now
concedes that the percutaneous placement of a central venous I.V. catheter would allow the Defendants
to lawfully carry out his death sentence while addressing his constitutional concerns about the lethal
1 Moore’s Complaint alleges that because of his “bad veins,” the Defendants will be unable to use an I.V. to inject him with lethal injection chemicals without creating an unnecessary risk of pain violating his rights under the Eighth Amendment of the U.S. Constitution and Section 17 of the Kentucky Constitution. He also sought a temporary restraining order and a preliminary injunction preventing the defendants from carrying out his execution until Defendants came up with a means of guaranteeing venous access. See Complaint at ¶¶ 16, 525. For purposes of this Brief, the Defendants assume arguendo the unsubstantiated allegations of Plaintiff Moore’s complaint regarding his “bad veins” and alleged effect the condition will have on him if he is executed under the existing lethal injection protocol. In reality, the Plaintiff Moore has submitted no evidence to support his allegations that he suffers from any condition that would prevent the Department of Corrections utilizing the existing protocol. The Defendants expressly deny that the Plaintiff suffers from any such condition. 2 As recently as December 20, 2006, Plaintiff Moore filed a Reply in which he recommended “perhaps injecting chemicals directly into Moore’s veins in a manner other than a percutaneous procedure. “ See Plaintiff’s Reply to Response in Opposition to Plaintiff Brian Keith Moore’s Second Motion for Leave to Conduct Depositions [Docket #123] at 3.
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injection chemicals blowing out his veins if the chemicals can be successfully injected into his veins.3 In
his Memorandum, the Plaintiff argues that the Defendants should have already identified the Plaintiff’s
proposed solution and that “[t]he problem is that Defendants are not prepared for this possibility and, . . .
have taken no steps to prepare for this situation or learn how to insert a central line.”4 However, the
Plaintiff has overlooked a serious problem with his proposed solution: as a result of the efforts of the
Plaintiff’s lead counsel, David Barron, on behalf of fellow death row inmates Ralph Baze and Thomas
Bowling in the state court case Bowling and Baze v. Rees, Franklin Circuit Court Case No. 04-CI-1094
(filed Aug. 8, 2004) (hereinafter “Bowling and Baze v. Rees”), the Franklin Circuit Court entered a
judgment5 on July 8, 2005 in which it held as follows:
The Plaintiffs have demonstrated by a preponderance of the evidence that the procedure where the Department of Corrections attempts to insert an intravenous catheter into the neck through the carotid artery or jugular vein does create a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. Accordingly, that portion, and only that portion, of Kentucky’s lethal injection protocol allowing for this procedure is stricken as violating the Plaintiffs’ safeguards against cruel and unusual punishment under the Eighth Amendment of the United States Constitution and Section 17 of the Kentucky Constitution.
3 Plaintiff’s Memorandum at 7. The Plaintiff’s latest concession was in response to the Court’s Memorandum Opinion and Order entered March 30, 2007 [Docket #139], in which the Court ordered the parties to address whether the allegations of Paragraphs 392, 394, and 395 collectively foreclose Moore’s execution by lethal injection by any legal means, resulting in dismissal of his complaint under 28 U.S.C. §2244(b) due to lack of subject matter jurisdiction. Paragraphs 392, 394, and 395 state as follows:
392. A person with bad veins likely will not be able to handle the flow of the lethal injection chemicals, causing the veins and other blood vessels to blow. . . .
394. Because of Plaintiff’s bad veins, even if Defendants are able to insert an I.V. into Plaintiff, the chemicals likely will not remain in his veins.
395. If the chemicals do not remain in the Plaintiff’s veins, Plaintiff will suffer an excruciatingly painful death.
Complaint at ¶¶ 392, 394 and 395. 4 Plaintiff’s Memorandum at 8. 5 The document is titled “Findings of Fact and Conclusions of Law,” but it is designated a final, appealable order of the Court on the last page of the document.
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See Judgment, Case No. 04-CI-1094, at 11-12.6 In addition, the Franklin Circuit Court enjoined the Kentucky Department of Corrections from utilizing the portion of the lethal injection protocol that permitted injection of lethal chemicals into the neck of the condemned prisoner. See Exhibit 1 at 13. Defendants decided not to appeal Judge Crittenden’s findings since Judge Crittenden confirmed there were a minimum of four locations (arms, hands, feet and ankles) that would be available for a constitutional execution. The judgment was then affirmed on appeal by the Kentucky Supreme Court in Baze and Bowling v. Rees, Appeal No. 2005-SC-000543, ---S.W.3d --- (Nov. 22, 2006), petition for rehearing denied, (Apr. 19, 2007).7
The result is that any attempt to attain venous access through the jugular vein would clearly be unlawful under Baze and Bowling v. Rees.8 Furthermore, due to proximity of the subclavian vein to the neck, the Defendants are concerned that any attempt to gain venous access through the subclavian vein would also be unlawful under Baze and Bowling v. Rees.
In addition to discussing the jugular and subclavian veins as potential sites of venous access, the Declaration of Mark J.S. Heath, M.D. that was included as Exhibit 2 to the Plaintiff’s Memorandum, Dr.
6 A certified copy of the Findings of Fact and Conclusions of Law entered in Case No. 04-CI-1094 is included as Exhibit 1 to the Defendants’ Brief. 7 A certified copy of the Kentucky Supreme Court’s Opinion Affirming entered in Appeal No. 2005-SC-000543 is included as Exhibit 2 to the Defendants’ Brief. The following language in the Opinion addresses the Franklin Circuit Court’s conclusion regarding central venous access through the neck:
The circuit judge concluded that the preponderance of the evidence indicates that the procedure which attempts to insert an intravenous catheter into the neck through the carotid artery or jugular vein does create a substantial risk of wanton and unnecessary infliction of pain and that only that portion of the legal injection protocol was stricken as violating the safeguards against cruel and unusual punishment. The Department of Corrections has since amended its previous protocol to meet the directions of the circuit court. Exhibit 2 at p. 6, numbered paragraph 6. 8 Similarly, and attempt to attain venous access through the carotid vein would also be clearly unlawful under Baze and Bowling v. Rees.
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Heath also mentions the femoral vein. However, while Dr. Heath’s Declaration clearly identifies the jugular and subclavian veins as central veins, Dr. Heath’s Declaration fails to state whether the femoral vein is medically defined as a “central vein.”9 As a result, Dr. Heath’s Declaration provides no indication whether or not central venous access through the femoral vein would be an acceptable alternative. Based on the information provided in Dr. Heath’s Declaration, the Court must reject the femoral vein as an acceptable means of central venous access, if it is even intended to be listed as a means of central venous access. 10
Even if the femoral vein could be medically defined as a central line, Dr. Heath’s declaration fails to address a crucial issue in determining whether venous access can be achieved using a percutaneous procedure. The critical problem that Dr. Heath’s declaration fails to address is the impact of Plaintiff Moore’s obesity11 on the prospects of obtaining venous access through either the femoral or subclavian (or even the jugular)12 vein without the use of a cut-down procedure. None of the evidence submitted by the Plaintiff shows that venous access through any of the veins discussed by Dr. Heath could be achieved by even a licensed doctor without the use of a cut-down procedure. It is also noted that both the Plaintiff and Dr. Heath have consistently contended that use of a cut-down procedure would violate the constitutional rights of an inmate. See, e.g., Complaint [Docket No. 1] at ¶¶ 368, 507.
9 See Declaration of Dr. Heath at p. 4, ¶13 (“the issue of whether a femoral catheter would technically constitute a ‘central line’ would depend on the length of the catheter and the strictness of the definition. Colloquially speaking, most physicians would call a femoral line a “central line, and very few if any would call a femoral line a ”peripheral line”). 10 The Defendants do not state any opinion at this time of whether or not central venous access would be possible on the Plaintiff through a percutaneous procedure, or whether such a procedure could be performed by a non- physician, or with or without the supervision of a licensed physician. 11 At last report, Plaintiff Moore indicated that he weighed in excess of 370 pounds. 12 As stated above, access through the jugular vein is clearly unlawful under Baze and Bowling v. Rees. The Defendants also believe that access through the subclavian vein is unlawful under Baze and Bowling v. Rees because of the proximity of the subclavian vein to the neck.
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In addition, the Plaintiff has failed to establish that a medical doctor would not be needed to perform or to supervise any of the percutaneous procedures or cut-down procedures described in the Plaintiff’s Memorandum. While the Plaintiff claims in his Memorandum that a doctor would not be required, Dr. Heath’s Declaration is far more equivocal on the subject. Dr. Heath concedes that “[t]ypically, the persons who perform such access include emergency room doctors, radiologists, cardiologists, surgeons, intensivists, and anesthesiologists.”13 Dr. Heath also concedes that he is aware of only one confirmed occasion in which a central line was successfully placed by a non-physician for purposes of creating venous access for an execution.14 While Dr. Heath states that it is not always necessary for the person performing central line access to be a credentialed doctor, he recognizes that it is absolutely necessary for the person to have the requisite “training, experience, and skill,” and that the person be “adequately equipped and supervised.”15 If the “supervision” mentioned by Dr. Heath refers to supervision by a doctor, KRS 431.220(3) prohibits both direct and indirect involvement by a doctor in any execution.
No doctor involvement is authorized by KRS 431.220(3) except to certify the cause of death, provided that the condemned is declared dead by another person. The Plaintiff has failed to demonstrate that any of the percutaneous procedures or cut-down procedures described in his Memorandum can be performed without the direct or indirect involvement of doctor, as required under KRS 431.220(3).
13 See Declaration of Mark J.S. Heath, M.D. at p.6, ¶ 25. (a copy of Dr. Heath’s Declaration was included as Exhibit 2 to the Plaintiff’s Memorandum). 14 See Declaration of Mark J.S. Heath, M.D. at p.4, ¶ 17. (a copy of Dr. Heath’s Declaration was included as Exhibit 2 to the Plaintiff’s Memorandum). 15 See Declaration of Mark J.S. Heath, M.D. at p.6, ¶ 25. (a copy of Dr. Heath’s Declaration was included as Exhibit 2 to the Plaintiff’s Memorandum).
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The end result is that the Plaintiff has failed to establish any lawful means of carrying out his execution that would solve the constitutional and jurisdictional problems arising from his allegations of Paragraphs 392, 394 and 395 of his Complaint in which he claims that the lethal injection chemicals will blow through his veins if injected with an I.V.16 Again, Moore has produced no evidence that his veins are in any way compromised that would prohibit his execution to be carried out by the protocol unanimously affirmed by the Kentucky Supreme Court in Baze and Bowling v. Rees. Surprisingly, the Plaintiffs call for a more invasive procedure by calling for accessing a central line in either the neck, that has been declared unconstitutional, or in the femoral artery, that due to Moore’s size would potentially call for a “cut-down” procedure which Plaintiffs believe is unconstitutional. Since the allegations of Plaintiff Moore’s Complaint leave no lawful means of carrying out his lethal injection, Moore’s Complaint must be deemed the functional equivalent of a prohibited second or successive habeas petition, and therefore be dismissed pursuant to 28 U.S.C. §2244(b) due to lack of subject matter jurisdiction.
II. Moore’s Action is Barred by the Running of the Statute of Limitations under the Analysis Articulated by the Sixth Circuit in Cooey v. Strickland for Accrual of §1983 Lethal Injection Claims.
In his argument addressing the appropriate accrual date for §1983 lethal injection challenges under the analysis articulated by the Sixth Circuit in Cooey, 479 F.3d 412 (6th Cir. 2007), the Plaintiff attempts to draw a distinction between “a claim asserting a facial challenge to a method of execution” and “an as-applied challenge to the chemicals, procedures, or other specific aspects of lethal injection” See Plaintiff’s Memorandum at 19-20. The Plaintiff would have the Court believe the Sixth Circuit in Cooey adopted two different standards for determining the accrual date of §1983
16 See note 3, supra.
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lethal injection challenges, one for “facial challenge[s] to a method of execution,” and another for “ as-applied challenge[s] to the chemicals, procedures, or other specific aspects of lethal injection.” Id. It appears that the Plaintiff’s argument is the result of his misinterpretation of a footnote found in the Court’s Memorandum Opinion and Order entered March 30, 2007 [Docket # 139 at 16, n. 5].17 The Plaintiff has seemingly interpreted the Court’s statement that “a facial challenge to a method of execution accrues upon the conclusion of direct review” as an indication that a different standard must govern the accrual of other types of method of execution challenges to lethal injection.
In reality, no distinction was drawn by the Sixth Circuit in Cooey between broad facial challenges to an entire method of execution and narrower method of execution challenges to specific chemicals or procedures employed during an execution. As a practical matter, actions involving general facial challenges to an entire method of execution are not likely to be decided on statute of limitations grounds. This is because the relevant United States Supreme Court decisions have not implicitly or explicitly overruled established Sixth Circuit precedent holding that general facial challenges to a method of execution must be dismissed for lack of subject matter jurisdiction as the functional equivalent of a second or successive habeas petition.18 As a result, the Cooey case itself involves a narrower “method of execution” challenge in which the plaintiff was “challenging the
17 The Plaintiff states in his Memorandum the following: As this Court recognized in its March 30, 2007 Order, under the Sixth Circuit’s recent decision in Cooey, “a claim asserting a facial challenge to a method of execution accrues upon the conclusion of direct review of criminal convictions. [Record No. 139 at 16, n.5, citing Cooey]. But, when the claim asserts an as applied challenge to the chemicals, procedures, or other specific aspects of lethal injection, under Cooey, the statute of limitations begins when the plaintiff knows or has reason to know the act providing the basis of the injury, which is defined as when the plaintiff should have discovered it through the exercise of reasonable diligence, and could have filed suit and obtained relief.
Plaintiff’s Memorandum [Docket #146] at 19-20 (emphasis added). 18 See Memorandum Opinion and Order [Docket #139] at 13-15.
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constitutionality of certain aspects of a state’s execution [procedures].” Cooey, 479 F.3d at 421.19
There is absolutely no support for the Plaintiff’s suggestion that the Cooey decision applies different
analytical approaches to the determination of the accrual date for §1983 lethal injection claims based
upon Plaintiff’s notion of whether the action should be classified as “a claim asserting a facial
challenge to a method of execution” or “an as-applied challenge to the chemicals, procedures, or
other specific aspects of lethal injection method of execution.” Plaintiff’s Memorandum at 19-20.
In Cooey, the Sixth Circuit began its analysis by stating the general standard for determining
the point of accrual of the statute of limitations as follows:
[A]s the Supreme Court recently made clear, federal law determines when the statute of limitations for a civil rights action begins to run. Wallace v. Kato, No. 05-1240, ---U.S.---, 127 S.Ct. 1091, ---L.Ed.2d---, 2007 WL 517122, at *3 (Feb. 21, 2007). “Under those principles, it is ‘the standard rule that [accrual occurs] when the plaintiff has [a] complete and present cause of action.’ ” Wallace, --U.S. at---, 127 S. Ct 1091, 2007 WL 517122, at*3 (quoting Bay Area Laundry & Dry Cleaning pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997)). This occurs “when ‘the plaintiff can file suit and obtain relief.’ ” Id. (quoting Bay Area Laundry, 522 U.S. at 201, 118 S.Ct. 542).
This Court has previously stated that “[u]nder federal law, as developed in this Circuit, the statute of limitations period begins to run when the plaintiff knows or has reason to know that the act providing the basis of his or her injury has occurred.” (6th Cir. 2001); Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); Ruff v. Runyon, 258 F.3d 498, 500-01 (6th Cir. 2001) (same); Sevier v. Turner, 472 F.2d 262, 273 (6th Cir. 1984). Stated differently, “[i]n determining when the cause of action accrues in §1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights.” Trzebuckowski v. City of Cleveland, 319 F.3d 853, 856 (6th Cir. 2003).
Cooey, 479 F.3d at 417.
19 The terms “method of execution challenge” and “method of injection challenge” are therefore used interchangeably in the Cooey decision to refer to the types of “as applied” challenges to specific procedures that have been allowed to proceed as civil action under 42 U.S.C. §1983. See Cooey 479 F.3d at 421, citing Hill v. McDonough, 126 S.Ct. 2096, 2102-104 (2006); Nelson v. Campbell, 541 U.S. 637, 644-51, 124 S.Ct. 2117(2004).
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The Sixth Circuit then applied these general principles to Cooey’s challenge to Ohio’s lethal injection procedures.20 It was noted that the statute of limitations applicable to habeas actions under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) begins to accrue from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for such review.” Cooey, 479 F.3d at 420, quoting 28 U.S.C. §2244(d)(1)(A)(1996). The Sixth Circuit acknowledged that the AEDPA’s statute of limitations “quite plainly serves the wellrecognized interest in the finality of state court judgments . . . [and] reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review.” Cooey, 479 F.3d at 221, quoting Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct.2120, 150 L.Ed. 2d 251 (2001). The Sixth Circuit then determined that “[t]he concerns articulated by the Supreme Court both pre-and post-AEDPA, and by Congress in the AEDPA itself, apply with equal force in this case, which ‘fall[s] at the margins of habeas.’” Cooey, 479 F. 3d at 421, quoting Nelson, 541 U.S. at 646, 124 S.Ct. 2117.
As a result, the Sixth Circuit adopted an accrual date for all §1983 “method of execution” claims to “mirror that found in the AEDPA.” Cooey, 479 F.3d at 422. Borrowing from the AEDPA, the Sixth Circuit held that an inmate’s §1983 challenge to the chemicals and procedures used by a state to carry out lethal injections occurs “upon conclusion of direct review in the state court or the expiration of time for seeking such review. “ Cooey, 479 F.3d at 422, citing 28 U.S.C. §2244(d)(1)(A) (1996).21 The only
20 On June 10, 2004, Richard Wade Cooey and another inmate, Adremy Dennis, filed a complaint alleging that Ohio’s lethal injection protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment. Ohio utilizes the same three drugs as Kentucky in performing lethal injection: sodium thiopental, pancurionium bromide, and potassium chloride. Cooey asserted that if the sodium thiopental is not administered properly and in sufficient dosage, the prisoner could experience intense pain after being injected with the potassium chloride, but would be unable to convey the sensation due to the paralyzing agent in pancurionium bromide. They also maintained that to subject the prisoner to such excruciating pain while he is still conscious would amount to cruel and unusual punishment. They also alleged that the personnel attending to the executions are inadequately trained and, as such, Defendants' execution methods would violate a prisoner's constitutional rights. Cooey, 479 F. 3d at 414-15. 21 Direct review of conviction includes review by the United States Supreme Court. Cooey, 479 F.3d at 422, n.6, citing
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adjustment authorized by the Sixth Circuit to the standard borrowed from the AEDPA was to address the situation when the date of conclusion of direct review of the inmate’s death sentence occurred prior to the date that lethal injection became the legal method of execution in the state. Cooey, 479 F.3d at 422.22 In such situations, the Sixth Circuit held that the accrual date should be adjusted to reflect the date that lethal injection became the legal method of execution. Id.
Applying this in the case sub judice, Brian Keith Moore’s capital conviction and death sentence were affirmed by the Kentucky Supreme Court on November 17, 1988. See Moore v. Com., Ky., 771 S.W.2d 34 (Nov. 17, 1988). Direct review of Moore’s capital conviction and death sentence was then concluded on March 26, 1990, when the United States Supreme Court denied Moore’s Petition for Writ of Certiorari. See Moore v. Kentucky, 494 U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 774 (U.S. Ky. Mar 26, 1990), rehearing denied, 495 U.S. 941, 110 S.Ct. 2196, 109 L.Ed.2d 524 (U.S. Ky. May 14, 1990). Lethal injection was subsequently adopted as the primary method of execution in Kentucky effective March 31, 1998. As a result, applying the standard adopted by the Sixth Circuit in Cooey, Plaintiff Brian Keith Moore’s §1983 lethal injection claim accrued on March 31, 1998, the date when lethal injection became the primary method of execution in Kentucky. Because Plaintiff Moore did not file his
Bell v. Maryland, 378 U.S. 226, 232, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964). . The one-year statute of limitations for habeas review under AEDPA does not begin to run until the ninety-day time period for direct review in the United States Supreme Court has expired. Cooey, 479 F.3d at 422, n.6, citing Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000); Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000). 22 As stated by the Sixth Circuit in Cooey,
Thus, under this standard, Cooey's claim would have accrued in 1991, after the United States Supreme Court denied direct review. However, Ohio did not adopt lethal injection until 1993, or make it the exclusive method of execution until 2001, so the accrual date must be adjusted because Cooey obviously could not have discovered the “injury” until one of those two dates. We need not pinpoint the accrual date in this case, however, because even under the later date, 2001, Cooey's claim exceeds the two-year statute of limitations deadline because his claim was not filed until December 8, 2004. Cooey, 479 F.3d at 422.
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Complaint in the present action until April 19, 2006, the Plaintiff’s claim is barred under the one-year statute of limitations applicable to §1983 actions in Kentucky.
The Plaintiff devotes a significant portion of his Memorandum to various arguments in which he attempts to persuade the Court that a later accrual date should apply to his §1983 lethal injection claim. However, with the exception of the Plaintiff’s unique argument that the statute of limitations should not apply to him,23 the Plaintiff’s arguments amount to little more than mere variations of the arguments considered and rejected by the Sixth Circuit in Cooey.
The arguments set forth in the Plaintiff’s Memorandum are shaped by his underlying belief that his action should not accrue until he possessed actual knowledge of all minute details of Kentucky’s lethal injection protocol. This viewpoint, however, is erroneous in at least two ways. First, the Sixth Circuit has roundly rejected any notion that actual knowledge is required before a party’s claim accrues, the Sixth Circuit having expressly rejected actual knowledge as the measure of when an action accrues. Cooey, 479 F.3d at 422 (stating that “[a]ctual knowledge, however, is not the appropriate measure; the test is whether he knew or should have known based upon a reasonable inquiry, and could have filed suit and obtained relief.”). Second, it is not necessary for information to be available as to every minute detail of fact for a party’s claim to accrue. “In determining when the cause of action accrues in §1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights.” Trzebuckowski v. City of Cleveland, 319 F.3d 853, 856 (6th Cir. 2003).
The fundamental holding in the Cooey is that a state’s act of adopting lethal injection as the legal method of execution is generally sufficient to alert death row inmates of the existence of
23 Plaintiff’s Memorandum at 17-19. The Defendant’s response to this argument is found on page 13, supra, of the Defendants’ Brief.
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potential “method of execution” lethal injection claims. The Sixth Circuit found that as long as basic information was generally available about the state’s lethal injection procedure, a death row inmate’s §1983 claims challenging the state’s lethal injection procedures accrues on the date that direct review of the inmate’s capital conviction and death sentence is concluded or the date the state adopts lethal injection as the legal method of execution, whichever is later. The Sixth Circuit expressly rejected the notion that the accrual date depends on any subjective analysis of whether and when specific information may have been disclosed or obtained relating to specific aspects of the lethal injection procedure. A subjective analysis of that type would have been unworkable due to the technical nature and ever-evolving complexity of lethal injection challenges. For example, no death row inmate had ever asked for information about Kentucky’s procedures for reviving a condemned inmate prior to discovery in the Baze and Bowling v. Rees case. Does this mean that the information was not available prior to the time it was disclosed in discovery? How can an inmate claim that specific information was not available when the inmate had not previously requested the particular information? To avoid this unworkable situation, the Sixth Circuit adopted an objective standard for determining the accrual date of a death row inmate’s §1983 “method of execution” challenge to a state’s lethal injection procedures, subject only to the availability to of basic information concerning the state’s lethal injection procedures. 24 As described below in the Defendants’ Brief, the available
24 The Sixth Circuit stated that “Cooey should have known of his cause of action in 2001 after amendments to the law required that he be executed by lethal injection, and the information was publicly available upon request.” Cooey, 477 F.3d at 422. The type of information being referred to by the Sixth Circuit was basic information like that contained in letters issued by the Ohio Department of Rehabilitation and Correction on April 19, 2002 and May 30, 2002 that are quoted in the Sixth Circuit’s opinion in Cooey. Id. at 417. Furthermore, in holding that Cooey’s claim accrued by 2001 at the latest, the Sixth Circuit makes it clear that accrual of an inmate’s claim does not require preemptive disclosure of information. It was sufficient that the information was eventually released in April and May of 2002, Cooey’s attorney had requested it. Id. This is made clear by the fact that the record in Cooey did not reflect that the Ohio Department of Rehabilitation and Correction was willing to release information about the state’s lethal injection procedures until April, 2002, yet the yet the Sixth Circuit held that Cooey’s claim accrued no later than the date in 2001. Id.
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information concerning Kentucky’s lethal injection procedures easily equaled or exceeded the amount of basic information available in Ohio during the time period at issue in the Cooey case.
The remainder of the Defendants’ Brief will address the specific arguments raised by the Plaintiff. The Defendants’ responses will be arranged in the order arguments are presented in the Plaintiff’s Memorandum.
A. The one-year statute of limitations applicable to §1983 actions in Kentucky applies to the Plaintiff’s action.
Contrary to the Plaintiff’s as sertions, the Plaintiff’s §1983 action challenging lethal injection in Kentucky is not exempt from the one-year stat ute of lim itations applicable to §1983 actions in Kentucky. For purposes of determ ining the appropriate statute of li mitations applicable to a §1983 action, the United States Suprem e Court has held that §1983 claim s are best characterized as tort actions for the recovery of da mages for personal injury and that f ederal courts must borro w the statute of lim itations governing personal injury actions from the state where the §1983 action was brought. Wilson v. Garcia, 471 U.S. 261, 275- 76, 105 S.Ct 1938, 85 L.Ed.2d 254 (1985). If a state has more than one statute of lim itations for personal injuries, the state's residual or general statute of limitations governing personal injury actions is applied to all §1983 actions broug ht in that state. Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct 573, 102 L.Ed.2d 594 (1989). In Kentucky, §1983 claims are subject to the one-year statute of limitations period under KRS 413.140 for personal-injury actions. Brown v. Wigginton, Ky., 981 F.2d 913 (6th Cir. 1992).
The cases cited by the Plaintiff for the proposition that th e statute of lim itations does not apply to his action are inapposit e, since none of the cited cases ore §1983 actions. The case la w shows that the statute of lim itations applies to §1983 actions even in cases wher e the plaintiff seeks only injunctive relief, not m oney damages. As a result, the Court sh ould reject the Plain tiff’s argument that the statute of limitations does not apply to his claims.
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B. Available information regarding Kentucky’s lethal injection procedures was more than sufficient to meet the modest requirements set by the Sixth Circuit in Cooey.
The Plaintiff argues at length that Kentucky does not meet the modest requirements set by the Sixth Circuit in Cooey for availability of information because Kentucky has not made its written lethal injection protocol available to the public. See Plaintiff’s Memorandum at 20 -25. The Plaintiff repeatedly asserts that Ohio has a written lethal injection protocol that was released to the public during the time period relevant in Cooey. These assertions simply are not true. In Cooey, the record reflected that Ohio had only a vague written policy. Cooey, 479 F.3d at 417. To this date, Ohio has no written “protocol” separate from its written policy. The only document even vaguely resembling a lethal injection protocol is the Ohio Department of Rehabilitation and Correction (“ODRC”) that has released to the public is referred to as Policy No. 001-09.25 A copy of ODRC Policy No. 001-09, effective date November 21, 2001 is included as Exhibit 3. The 2001 Policy contains no information concerning the lethal injection drugs or procedures for administering the drugs. It contains provisions analogous to Kentucky’s Execution policy, which is also available to the public. A copy of ODRC Policy No. 001-09, effective date July 17, 2003 is included as Exhibit 4. It also fails to provide any details regarding the actual lethal injection process. The first time that Ohio’s lethal injection policy was revised to include specific information about the lethal injection chemicals was in 2006, long after Cooey’s claim had accrued. A copy of ODRC Policy No. 001-09, effective date October 11, 2006 is included as Exhibit 5. Thus, Kentucky’s execution policy contains as much information about the lethal injection process as Ohio’s lethal injection policy did during the time period relevant in the Cooey case and in the instant action. A copy of Kentucky execution policy, CPP 9.5, effective
25 The Plaintiff repeatedly asserts that Ohio has disclosed its lethal injection protocol to the public. See, e.g., Plaintiff’s Memorandum at 21, 26, 28, 29 and 32. However, the Plaintiff fails to provide any proof that Ohio has released its lethal
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date December 17, 1998 is included as Exhibit 6. Likewise, letters issued by the Kentucky Department of Corrections from May 14, 2002 and
August 3, 2004, contain practically the same types of information found in letters issued by ODRC on April 19, 2002 and May 30, 2002. The information provided in KDOC’s May 14, 2002 letter to Assistant Public Advocate, Thomas M. Ransdell, describe the procedures followed during lethal injections in Kentucky and identify the chemicals and the amounts utilized. The August 3, 2004 letter from the Justice and Public Safety Cabinet to Assistant Public Advocate, David M. Barron, contains similar information. A copy of ODRC letter dated April 19, 2002 is included as Exhibit 7. A copy of ODRC letter date May 30, 2002 is included as Exhibit 8. A copy of the Kentucky Department of Corrections (KDOC) letter dated May 14, 2002 is included as Exhibit 9. A copy of the Justice and Public Safety Cabinet open records letter dated August 3, 2004 is included as Exhibit 10. Thus, there is no basis for the Plaintiff’s assertions that Kentucky has refused to make available information about the lethal injection chemicals and procedure.
Furthermore, a review of the information disclosed in newspaper articles during the relevant time period show that at least as much, if not more information about Kentucky’s lethal injection procedure was published than was released concerning Ohio’s lethal injection procedure. A copy of the Cleveland Plain Dealer article dated February 17, 1999 is included as Exhibit 11. A copy of the Lexington Herald Leader article dated November 28, 2004 is included as Exhibit 12. The Herald Leader article was filed as an attachment to a Response to a motion in the Baze and Bowling case. A copy of the Response in the Baze and Bowling case dated January 19, 2005 is included as Exhibit 13.
A review of the foregoing policies, letters and newspaper articles demonstrates that more than adequate information was available about Kentucky’s lethal injection procedures in comparison to
injection protocol. In reality, Ohio’s protocol was filed with the federal district court under seal in the Cooey case, just as
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information made available regarding Ohio’s lethal injection procedures. The Plaintiff’s claim that Ohio made more information available simply is not true. Similarly, the Plaintiff has no basis for his claims that ODRC has been more cooperative in providing information than KDOC.26 Public disclosure of a state’s written lethal injection protocol is not required to meet the requirements set forth in the Cooey decision for making information available. Simply stated, the Cooey case does not require the availability of the detailed, minute information contained in a state’s lethal injection protocol. The Sixth Circuit’s decision Cooey contemplates only the availability of basic information about a state’s lethal injection chemicals and procedures, as evidenced by the letters and newspaper article cited in the majority opinion in Cooey.
C. The filing of Kentucky’s lethal injection protocol under seal in Baze and Bowling v. Rees did not prevent unsealed documents and information disclosed during the course of discovery relating to Kentucky’s lethal injection procedures from becoming available to Moore or to the public.
The Plaintiff argues at great length that his lethal injection claim did not accrue until after the trial took place in Baze and Bowling v. Rees, due to an alleged lack of information specifically available to the Plaintiff until after the trial. See Plaintiff’s Memorandum at 25. The Plaintiff’s argument appears to be partially based on the assertions of his lead counselor, David Barron, that he did not officially represent Plaintiff Moore until November 1, 2005. Id. The Plaintiff’s argument also appears to be partially based upon Mr. Barron’s assertions that he was under some duty to refrain from discussing with anyone any information he learned during the course of discovery the Baze and Bowling v. Rees case. Mr. Barron indicates that this duty continued until some point during the trial in the Baze and Bowling v. Rees case. See Plaintiff’s Memorandum at 30. Mr. Barron’s apparent
Kentucky’s lethal injection protocol has been filed under seal in Baze and Bowling v. Reese and in the case sub judice. . 26 See note 24, supra.
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reason for claiming he was under such a duty is because Kentucky’s written lethal injection protocol had been filed under seal in the Baze and Bowling v. Rees case. No explanation is provided why Mr. Barron would believed that he was under any duty of to refrain from disclosing information learned in the course of discovery or from other sources besides the sealed lethal injection protocol27 There is also no explanation given why Mr. Barron would believe, in the absence of any applicable protective order in the Base and Bowling v. Rees case, that any difference existed between his obligation to keep information from the trial confidential versus his obligation to deep information learned in depositions and discovery confidential. In any event, these are the excuses given why Plaintiff Moore should only be charged with actual knowledge of the developments in Baze and Bowling v. Rees and other relevant litigation since the time lethal injection became the legal method of execution in Kentucky.
It would be facetious for Mr. Barron or any other attorney from the Kentucky Department of Public Advocacy to suggest that the attorney’s representation of a death row inmate like the Plaintiff on a §1983 lethal injection challenge was initiated by the inmate making the first contact with the attorney and asking the attorney to represent the inmate in filing a complex lethal injection challenge. For example, a DPA attorney is not going to be contacted out of the blue by a death row inmate with a new idea for a lethal injection challenge to the adequacy of the State’s procedures and equipment for resuscitating condemned inmates in the event a stay is ordered after lethal injection has begun. As a practical matter, complex legal claims of this nature are likely to be the idea of the DPA attorneys who work regularly with death row inmates. While Mr. Barron, may not have personally represented Mr. Moore until November of 2005, it is likely that someone else from DPA had contact
27 Mr. Barron’s reason for contending that he was under a duty not disclose information learned during depositions and discovery from sources besides the sealed protocol are particularly perplexing in view of the fact that while Kentucky’s lethal injection protocol remains under seal in the case sub judice, Mr. Barron now understands that his duty of nondisclosure only extends to the lethal injection protocol, not to information obtained from other sources, such as
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with the Plaintiff at some point prior to that time. Nevertheless, the Plaintiff expects the Court to believe that DPA attorneys representing death row inmates do not talk to one another about new developments and information learned during the course of discovery and litigation of a groundbreaking case like Baze and Bowling v. Rees.
Plaintiff Moore expects the Court to ignore all information about Kentucky’s lethal injection procedures disclosed during the course of discovery in the Baze and Bowling v. Rees case and treat it as if the only way a the Plaintiff could learn such information is if Mr. Barron personally disclosed it to the Plaintiff. Fortunately, the Sixth Circuit rejected this position in the Cooey case, holding that actual personal knowledge is not required. Cooey, 479 F.3d. at 422. Information disclosed in unsealed depositions and discovery from the Baze and Bowling v. Rees case are fair game, and should be considered by the Court in determining whether any minimal informational requirements arising out of the Cooey decision have been satisfied.
At the same time that the Plaintiff is asking the Court to assume that death row inmates have no access to information readily available to the DPA attorney representing a given inmate unless the information was disclosed in a particular action to which the inmate is a party, the Plaintiff is also asking the Court to assume that death row inmates have no access to the outside media or any other external information. If the Cooey case required the court to treat inmates in this manner, a death row inmate’s §1983 lethal injection action would never accrue until the inmate had actual knowledge of information alerting the inmate to the potential existence of a claim. Again, it is fortunate that the Sixth Circuit rejected this position in the Cooey case, holding that personal knowledge is not required. Cooey, 479 F.3d. at 422. The minimal informational requirements arising out of the Cooey decision are satisfied as long as information is available that could be expected to alert a reasonable
discovery. See Plaintiff’s Memorandum at 30.
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person to the possibility the existence of a claim.
D. Newspaper articles containing information about Kentucky’s lethal injection procedures were sufficient to meet the Sixth Sixth Circuit’s minimal informational requirements imposed In Cooey.
The Plaintiff argues that newspaper articles and media reports would not serve to notify a death row inmate of a potential claim, since the inmates are “held in the hole, without access to media reports.” Plaintiff’s Memorandum at 29. He also argues that media reports would not have included enough information to place an inmate on notice of a potential claim because Kentucky’s lethal injection protocol has not been released to the media. Id. As stated above, however, the Sixth Circuit has made it clear that actual knowledge is not the appropriate measure. Cooey, 479 F.3d at 422. The sources of information cited in Cooey as being sufficient to place an inmate on notice of a possible claim included a newspaper article from the Columbus Dispatch and a law review article. . Cooey, 479 F.3d at 417. The Sixth Circuit was not concerned over the actual availability of either of these items to the plaintiff in Cooey, who was also a death row inmate. Furthermore, as stated above, the Plaintiff is in error when he states that the Ohio has disclosed its lethal injection protocol. Ohio does not have a written lethal injection protocol. Instead, the Ohio Department of Rehabilitation and Correction (“ODRC”) has a written policy directive that contains some of its lethal injection procedures. A copy of ODRC’s written policy directive in effect from November 1, 2001 to July 16. 2003 is included as Exhibit 3. A copy of ODRC’s written policy directive in effect July 17, 2003 is included as Exhibit 4. Furthermore, disclosure of the detailed information contained in the protocol is not required to place inmates on notice of the existence of potential claims. It is clear from the Cooey decision that the amount and level of detail of information being required by the Sixth Circuit does not begin to approach the level expected by the Plaintiff.
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E. The statute of limitations was not tolled during the time period while Moore was exhausting his administrative remedies.
Plaintiff Moore claims that the running of the statute of limitations on his action was tolled during a five-day time period while he was exhausting his administrative remedies. See Plaintiff’s Memorandum at 31. For the reasons stated previously in this Brief, the Defendants submit that the Plaintiff’s lethal injection claim accrued long before April of 2006, rendering the issue of tolling during this five-day period moot. In any event, the Sixth Circuit’s opinion in Cooey implicitly rejected the Plaintiff’s argument that the running of the statute of limitations was tolled during any period that an inmate is exhausting his administrative remedies. The plaintiff in the Cooey case initially filed his petition on July 10, 2004, but it was dismissed due to failure to exhaust administrative remedies. He then re-filed his complaint on December 10, 2004. Cooey at 415-16. The Sixth Circuit found that for purposes of applying the statute of limitations, his claim was not filed until December 8, 2004. See Cooey at 422. Thus, it is clear from the Cooey opinion that the Sixth Circuit did not deem the statute of limitations to be tolled during the time that a plaintiff was exhausting his administrative remedies.
F. Revisions to Kentucky’s lethal injection protocol have had no effect on the accrual of Plaintiff Moore’s lethal injection claim.
Plaintiff Moore apparently contends that because of what he describes as frequent amendments to Kentucky’s lethal injection protocol, his lethal injection claim could not have accrued until he filed his Complaint in the case sub judice. See Plaintiff’s Memorandum at 31-33. In the Cooey case, however, the Sixth Circuit expressly rejected the argument that the plaintiff’s lethal injection claim had not accrued due to the fluid nature of Ohio’s lethal injection procedures. Cooey,
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479 F.3d at 421.28 The Sixth Circuit looked at the changes made to Ohio’s protocol, and found that
none of the changes related to the plaintiff’s core claims. The Sixth Circuit also found that the
changes to the lethal injection procedure were not implicated as a basis for the plaintiff’s conclusion
that Ohio’s lethal injection procedures presented an unconstitutional risk of cruel and unusual
punishment.29
Despite the Plaintiff’s assertions to the contrary, the changes to Kentucky’s lethal injection protocol have
been minor and have not related to any of the Plaintiff’s core claims. Besides updates to the names and
telephone numbers of personnel listed in the protocol, the only revisions made to the protocol were on
28 The Sixth Circuit also expressly rejected the “date the lethal injection protocol is imposed” as the accrual date; on the basis it was infeasible. Cooey, 479 F.3d at 421-22. If the date the protocol is imposed is infeasible, then the date the protocol is released to the public is at least equally infeasible.
29 The Sixth Circuit stated the following:
Ohio's recent amendments to its lethal injection protocol resulted from difficulties encountered during the execution of Joseph Clark on May 2, 2006. When preparing Clark for execution, prison officials could find only one accessible vein in Clark's arms to establish a heparin lock, through which the lethal drugs are administered. (Two locks usually are inserted.) However, once the execution began and the drugs were being administered, this vein collapsed, and Clark repeatedly advised officials that the process was not working. Officials stopped the lethal injection procedure, and after a significant period of time, were able to establish a new intravenous site. The process then was restarted, and Clark was executed.
To avoid similar difficulties in future executions, Ohio made several changes to its lethal injection protocol. First, officials removed time deadlines that previously dictated executions begin by a certain hour, and be completed within a narrow time frame. Second, prisoners are given more in-depth medical examinations prior to execution. Third, correctional personnel will make every effort to obtain two sites for heparin locks before proceeding to the execution chamber. Fourth, personnel will no longer use “high pressure” saline injections to check the viability of the intravenous lines. Instead, a “low pressure” drip of saline will be used to keep the line open and confirm its ongoing viability. Fifth, correctional personnel will observe each inmate's arms and check for signs of intravenous incontinence while the drugs are being administered to the inmate.
As Defendants assert, none of these changes relates to Cooey's core complaints. Further, none of these areas were implicated as a basis for Cooey's expert's conclusion that the process presents a risk that Cooey will experience pain. Rather, Dr. Heath, Cooey's expert, criticized the use of pancuronium bromide, the use and dosage of sodium thiopental, the failure to provide a continuous dose of an ultra-short-acting barbiturate, and the lack of information regarding prison personnel's training to prepare and administer the drugs.
Cooey, 479 F.3d at 423-424.
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May 12, 2005, when the protocol was modified to increase the amount of sodium thiopental from 2 gm. to 3 gm., and on June 30, 2006, when the protocol was revised to remove the provision allowing venous access through the neck of the condemned inmate in order to conform to the judgment in Baze and Bowling v. Rees.
Like the Cooey case,30 none of these revisions relate to or adversely impact any of the Plaintiff’s core claims. The increase in the dose of sodium thiopental was consistent with the testimony in the Baze and Bowling v. Rees case of Dr Heath, the doctor whose affidavit Plaintiff Moore included with his Memorandum filed April 18, 2006. The removal of the provision previously allowing for venous access through the neck of the condemned inmate was required under the judgment in the Baze and Bowling v. Rees case. Both of these revisions to the protocol made changes that were favorable to death row inmates, including the Plaintiff. In any event, the revisions did not affect the accrual of
G. Moore’s entire cause of action has accrued and is barred by the running of the Statute of Limitations.
Finally, the Plaintiff argues that Court must look at his Complaint on a claim-by-claim basis in determining whether the statute of limitations has run on his claims, and that his claims relating to the following two (2) issues should not be dismissed even if it turns out his Complaint is otherwise subject to dismissal based on the running of the statute of limitations:
First, the Plaintiff contends that the statute of limitations has not run on his so-called “claim” arising out of the Defendants’ alleged failure to have the proper equipment and chemicals available at the execution chamber in case a last minute stay of execution is granted after the first or second lethal injection chemicals are administered. The Plaintiff now claims this constitutes an arbitrary
30 See note 26, supra.
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deprivation of life in violation of the Plaintiff’s Eighth Amendment rights and a violation of his substantive due process rights. The Plaintiff argues this “claim” did not accrue until April 21, 2005, when the Defendants sent him a document describing the equipment and chemicals on the crash cart.
Second, the Plaintiff contends that the statute of limitations has not run on his “claim” arising out of his allegation that Defendants have failed to conduct medical or scientific tests on the lethal injection chemicals since August 2004, when the complaint in Baze and Bowling v. Rees was filed in state court. The Plaintiff claims this shows deliberate indifference toward known medical needs, apparently on the theory that the Defendants failed to take remedial action after based on information presented in Ralph Baze’s and Thomas Bowling’s complaint in that case and the accompanying exhibits.
The overriding problem with these arguments is that the listed matters do not represent separate, independent claims. Instead, the listed matters amount to nothing more than factual allegations that support one or more of the Plaintiffs’ claims.
In the case of the crash cart, these allegations merely represent facts that are relevant to the Plaintiff’s claim that Kentucky’s procedures and equipment for carrying out executions by lethal injection constitute an arbitrary deprivation of life in violation of the Eighth Amendment rights and his substantive due process rights. His factual allegations that the crash cart did not include the appropriate equipment and chemicals to revive an inmate in the event of a stay are merely some of the facts Plaintiff is alleging to support this broader claim. Other alleged facts that support the claim include the Plaintiff’s claims that Department of Corrections personnel are not properly qualified or trained to revive an inmate in the event of a stay. See Complaint at Paragraphs 403 through 442 and Paragraphs 514 through 517. The fact that the Plaintiff attempts to label Paragraphs 514 through 517 of the Complaint as a series of one-paragraph “claims” does not make them separate and independent
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claims. These alleged “claims” do not even contain separate factual allegations regarding ham to the Plaintiff or separate demands for relief.
In the case of the Plaintiff’s allegations about the Defendants’ alleged failure to conduct medical or scientific tests on the lethal injection chemicals, these allegations are simply part of the Plaintiff’s claim that Kentucky’s lethal injection procedures violate his Eighth Amendment rights. Contrary to the Plaintiff’s assertions, there is absolutely no indication in Paragraph 307 of the Plaintiff’s Complaint that the allegations are intended as part of a separate or independent claim of deliberate indifference to the Plaintiff’s medical needs. The Plaintiff’s argument that anything involving the choice of lethal injection chemicals could constitute deliberate indifference to the Plaintiff’s medical needs makes no sense whatsoever, given that lethal injection is a form of execution, not a medical procedure. The Plaintiff’s argument that each statement of fact constitutes a separate claim is equally nonsensical.
If the Plaintiff’s argument was correct, every civil action would consist of a fluid and seemingly infinite number of “claims” that would continue to expand throughout the litigation. If each new fact constituted a new claim, a plaintiff’s action would never accrue until he or she obtained actual knowledge of every minute detail of fact touching on a case. Fortunately, the Sixth Circuit expressly rejected the Plaintiff’s argument that a claim does not accrue until a party has obtained perfect knowledge of all possible facts relevant to the claim. Under Cooey, the accrual date of the Plaintiff’s claim was the date Kentucky adopted lethal injection as the legal means of execution, subject only to the condition that basic information concerning the state’s lethal injection procedures be available. As stated in previous sections of this Brief, the available information concerning Kentucky’s lethal injection protocol more than meets this requirement.
The Defendants also note that the Plaintiff’s claim would be barred by the statute of
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limitations even it the Court construes the “availability of information” part of the test to require availability of basic information about the procedures, training and equipment for reviving inmates in the event of a stay. As stated above, the Cooey decision rejected the notion that actual knowledge is ever required. Cooey, 479 F.3d 422. While the Plaintiff may not have had actual knowledge of certain specific facts until April 21, 2005, it does not follow that information about Kentucky’s procedures, training and equipment for reviving inmates was not “available” prior to that date. “Availability” does not require the State to preemptively publicize information before the Plaintiff even asks for it.31 In the present case, there is no proof that the Plaintiff ever asked for information about Kentucky’s procedures, training and equipment for reviving inmates. Thus, even if the Court construes Cooey to require availability of information condition to require availability of information about procedures, training and equipment for reviving inmates, the Plaintiff has failed to offer proof that the information was not available.32
Although it is not clear from the Plaintiff’s Memorandum, another possibility is that the Plaintiff may be arguing that the Court should presume the unavailability of the information based on the alleged fact that his attorney, David Barron, did not obtain the document listing the contents of the crash cart until April 21, 2005 in the Baze and Bowling v. Rees case. If this is the Plaintiff’s argument, the Defendants respond by asking the Court to take a look at all the information that Mr. Barron had already obtained during the course of discovery in the Base and Bowling v. Reese case. For example, on January 5, 2005, Mr. Barron took the deposition of Deputy Warden Richard Pershing. A copy of the transcript of the deposition is included ad Exhibit 14. Deputy Warden Pershing is the person who informed Mr. Barron that a recommendation had been made for a crash
31 See note 24, supra. 32 It is noted that the Plaintiff does not even allege when or even whether his attorney, David Barron, specifically asked for information about the contents of the crash cart. In the January
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cart to be on site in case that was a stay after the lethal injection process started.33 Deputy Warden Pershing also identified at least one piece of equipment included in the crash cart, a defibrillator.34
In fact, an incredible amount of information was disclosed to Mr. Barron and other DPA attorneys during the course of discovery in the Baze and Bowling v. Rees case on just about any conceivable issue that is relevant in the present action. For example, the transcript of the October 19, 2004 deposition of former Warden Glenn Haeberlin that is included as Exhibit 15 discloses information on a myriad of issues relevant to claims presented by the Plaintiff in this action.35 Warden Haeberlin’s deposition was just one (1) of seventeen (17) depositions in the Baze and Bowling v. Rees case covering information relevant to every claim the Plaintiff has made in the case sub judice. The Plaintiff expects the Court to believe that his attorney, David Barron, did not rely on the transcripts of these depositions or any other information obtained during the course of discovery in the Baze and Bowling v. Rees case when he prepared the Plaintiff’s Complaint in this action. 36 Obviously, the Plaintiff and his attorney relied heavily on the information obtained during the course of discovery. Basic information and more, touching on all of the Plaintiff’s claims had been disclosed to Mr. Barron and other DPA attorneys long before the trial in Baze and Bowling v. Rees. It is disingenuous for the Plaintiff to now claim that no information was available.
Second, the Plaintiff contends that the statute of limitations has not run on his “claim” arising out of his allegation that Defendants failed to conduct medical or scientific tests on the
33 See Exhibit 14 at 5. 34 See Exhibit 14 at 9. 35 Warden Haeberlin’s deposition provided information on a number of subjects, including the following: execution team training (See training – mixing chemicals, Exhibit 15 at page 37; see security of chemicals, Exhibit 15, page 37; see qualifications of IV Team Member, Exhibit 15, page 59); 36 The Plaintiff apparently expects the Court to believe that Mr. Barron relied only upon videotapes of the trial testimony in preparing the Plaintiff’s Complaint, to the exclusion of all the information learned during the course of discovery. See Plaintiff’s Memorandum at 30.
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chemicals since August 2004, when the complaint in Baze and Bowling v. Rees was filed in state court. The Plaintiff claims this shows deliberate indifference toward known medical needs, apparently on the theory that the Defendants failed to take remedial action based on information presented in Ralph Baze’s and Thomas Bowling’s complaint in that case and the accompanying exhibits. III. CONCLUSION
The Plaintiff has failed to establish any lawful means of carrying out his execution that would solve the constitutional and jurisdictional problems arising from his allegations that the lethal injection chemicals will “blow out” his veins. Since the allegations of Plaintiff Moore’s Complaint appear to leave no lawful means of carrying out his lethal injection, Moore’s Complaint must be deemed the functional equivalent of a prohibited second or successive habeas petition, and therefore be dismissed pursuant to 28 U.S.C. §2244(b) due to lack of subject matter jurisdiction.
The Plaintiff’s Complaint should be dismissed on due to the running of the statute of limitations. Applying the standard adopted by the Sixth Circuit in Cooey, Plaintiff Brian Keith Moore’s §1983 lethal injection claim accrued on March 31, 1998, the date when lethal injection became the primary method of execution in Kentucky. Because Plaintiff Moore did not file his Complaint in the present action until April 19, 2006, the Plaintiff’s claim is barred under the one-year statute of limitations applicable to §1983 actions in Kentucky.
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(502)

Respectfully submitted,
/s/ John C. Cummings ____________________________________ Thomas L. Self Jeff Middendorf Holly Harris-Ray John C. Cummings Justice & Public Safety Cabinet Office of Legal Services 125 Holmes Street Frankfort, Kentucky 40601
564-3279 (502) 564-6686 (fax) COUNSEL FOR DEFENDANTS

CERTIFICATE OF SERVICE I hereby certify that on May 17, 2007, I electronically filed this document with the clerk of the court by using the CM/ECF System, which will send a notice of electronic filing to the following users: David M. Barron (davembarron@yahoo.com); John Anthony Palombi (john.palombi@ky.gov); and Marguerite Neill Thomas (marguerite.thomas@ky.gov). Notice will be sent by other means to: none.

/s/ John C. Cummings __________________________________ John C. Cummings

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 Case: 3:06-cv-00022-KKC Doc #: 188 Filed: 09/25/07 Page: 1 of 20 - Page ID#: 4695

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at FRANKFORT
** CAPITAL CASE **
CIVIL ACTION NO. 06-CV-22-KKC
BRIAN KEITH MOORE

PLAINTIFF

VS:

MEMORANDUM OPINION AND ORDER

JOHN D. REES, ET AL.

DEFENDANTS

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

Ralph Baze, a Kentucky death row inmate, has filed a motion to intervene in this action pursuant

to Federal Rule of Civil Procedure 24(b), and the matter has been fully briefed by the parties. [Dkt. 101,

103, 107, 111, 112, 114, 116, 117] At the request of the Court, the parties have also submitted briefs

regarding the potential application of the Rooker-Feldman doctrine in light of the Supreme Court’s

decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005). [Dkt. 119, 126, 127].

This matter is now ripe for decision.

BACKGROUND

On April 19, 2006, Kentucky death row inmate Brian Keith Moore filed the present civil rights

action pursuant to 42 U.S.C. § 1983. Moore’s extensive Complaint alleges, in sum, that Kentucky’s

method of carrying out his death sentence by lethal injection would violate his right to be free from

“Cruel and Unusual Punishments” under the Eighth Amendment. Moore seeks declaratory and

injunctive relief. [Dkt. 1]

On June 16, 2006, Kentucky death row inmate Jeffrey Leonard filed a motion to intervene in this

action, tendering a Complaint asserting claims substantially identical to those asserted by Moore. [Dkt.

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36] The Defendants “voice[d] no objection to Leonard’s intervention and, indeed, applaud Moore’s apparent concession that his own unique physical characteristics do not prevent the factual and legal issues he asserts in his complaint from being ‘common’ with those asserted by Leonard.” The Court granted Leonard’s motion by Order dated August 25, 2006, on the ground that Leonard’s Complaint presents factual or legal questions in common with those asserted by Moore. Fed. R. Civ. P. 24(b). [Dkt. 86]
On November 27, 2006, Kentucky death row inmates Ralph Baze and Thomas Clyde Bowling also filed motions to intervene in this action, again tendering Complaints asserting substantially identical claims that Kentucky’s lethal injection protocol violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. [Dkt. 100, 101]
Unlike Leonard, however, Baze and Bowling had previously asserted these identical claims to the Kentucky state courts. On August 9, 2004, Baze and Bowling filed a civil complaint in the Circuit Court of Franklin County, Kentucky, asserting that Kentucky’s lethal injection protocol violated the Eighth Amendment’s prohibition against “Cruel and Unusual Punishments” as well as Section 17 of the Kentucky Constitution. They sought declaratory and injunctive relief. Ralph Baze and Thomas C. Bowling v. Jonathan D. Rees, et al, Civil Action No. 04-CI-1094, Franklin Circuit Court. [Dkt. 111 Exh. 1]
During pretrial proceedings in the state court, Baze and Bowling were permitted significant discovery. They deposed 17 individuals, including a number of high-ranking officers of the Kentucky Department of Corrections (“KDOC”). On January 1, 2005, Baze and Bowling filed a motion to compel the Defendants to permit the depositions of the members of the execution team. When the Franklin Circuit Court denied the motion on February 7, 2005, Baze and Bowling immediately sought a writ of mandamus or prohibition directly from the Kentucky Supreme Court. The parties have not revealed to
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the Court (1) the information Baze and Bowling sought to obtain from the depositions or their legal bases for permitting the depositions to go forward; (2) the basis for the Defendants’ opposition to the depositions; (3) the Franklin Circuit Court’s reasoning in denying the requested discovery; or (4) the grounds asserted by Baze and Bowling before the Kentucky Supreme Court in support of their application for a writ of mandamus and/or prohibition.
While that application remained pending, the Franklin Circuit Court commenced a seven-day bench trial on April 18, 2005. During those proceedings, the court heard the testimony of twenty witnesses. After the parties submitted post-trial briefs, on July 8, 2005, the Circuit Court entered its Findings of Fact and Conclusion of Law in which it upheld the lethal injection protocol against constitutional scrutiny in all pertinent regards. After the circuit court had entered its judgment on the merits, on August 25, 2005, the Kentucky Supreme Court denied Baze and Bowlings’ request for a writ of mandamus or prohibition regarding depositions of the execution team members on the ground that they possessed an adequate remedy on direct appeal. [Dkt. 111 Exh. 2]
Baze and Bowling then appealed the trial court’s judgment to the Kentucky Supreme Court. The Defendants allege that Baze and Bowling did not raise the circuit court’s refusal to permit the depositions of execution team members as a ground for reversal on appeal; Baze and Bowling directly contradict this assertion and indicate that this discovery issue was squarely presented in their appellate brief. Again, neither party has supported their respective allegations regarding the issues raised on appeal by filing a copy of the appellate briefing before the Kentucky Supreme Court into the record. On November 22, 2006, the Kentucky Supreme Court entered its Opinion and Order affirming the Franklin Circuit Court’s decision in all respects. Baze v. Rees, Ky., 2006 WL 3386544 (2006). [Dkt. 111 Exh. 3]
Baze and Bowling filed their motions to intervene in this action five days later. In his motion
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to intervene, Baze asserts that he satisfies the requirements of Rule 24(b) and that “neither exhaustion of administrative remedies nor res judicata poses [sic] an obstacle to this Court’s authority to allow Baze to intervene.” [Dkt. 101; see also Dkt. 112 at pg. 1: “To allow Baze to intervene, this Court needs to find only that the requirements set out in Rule 24 of the Federal Rules of Civil Procedure are satisfied and that res judicata does not prevent this Court from addressing the merits of Baze’s claim.”] The Defendants counter that Baze unnecessarily delayed in seeking to intervene and that his claim is barred by res judicata.
After Moore filed this action, perhaps because he anticipated the Defendants would object to the deposition of execution team members as they had in Baze’s state court litigation, he filed a motion seeking leave to depose those individuals. [Dkt. 81, 110] After full briefing by the parties, the Court entered a Memorandum Opinion and Order indicating that the information sought by Moore appeared to satisfy the requirements for discoverability, and hence such discovery should be allowed so long as the parties could arrive at sufficient security precautions to provide for the security and anonymity of those individuals. [Dkt. 139] In that Memorandum Opinion and Order, the Court stayed discovery, however, in order to permit further briefing on the nature of the claims asserted by Moore and issues related to the statute of limitations in light of the Sixth Circuit’s recent decision in Cooey v. Strickland, 05-4057, Court of Appeals for the Sixth Circuit. That briefing was completed on May 30, 2007. [Dkt. 157]
On August 14, 2007, the Attorney General of Kentucky filed a formal request with Kentucky Governor Ernie Fletcher to schedule Ralph Baze’s execution. Governor Fletcher subsequently set Baze’s execution date for September 25, 2007. The Court thereafter granted Baze’s original and amended motions to expedite ruling on his motion to intervene in light of the approaching execution date. [Dkt. 159, 161, 174] Baze has filed a number of motions seeking discovery related to the merits
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of his underlying claim regarding the constitutionality of Kentucky’s lethal injection protocol, as well as motions to stay his execution pending resolution of both procedural and substantive matters in the present case. [Dkt. 162, 163, 164, 165, 167, 172, 177, 178] Recognizing that Baze’s right to intervene in this proceeding is a necessary prerequisite to the various forms of relief sought in his subsequent motions, the Court will address that question first.
DISCUSSION I. Rooker-Feldman Doctrine.
Federal courts may exercise subject matter jurisdiction over only such cases as are authorized by Congress. Hudson v. Coleman, 347 F.3d 138, 141 (6th Cir. 2003). Because any judgment rendered in a case over which a district court lacks subject matter jurisdiction is void, a district court must satisfy itself that it possesses subject matter jurisdiction over a plaintiff’s cause of action. Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 607 (6th Cir. 1998) (“[q]uite aside from whether the parties raise jurisdictional issues themselves -- or even attempt to consent or agree to federal jurisdiction -- federal courts have an independent obligation to investigate and police the boundaries of their own jurisdiction.”).
Baze’s proposed intervenor complaint alleges that the Defendants’ implementation of Kentucky’s lethal injection protocol will violate his right to be free from “Cruel and Unusual Punishments” under the Eighth Amendment to the Constitution of the United States. Such a claim readily falls under the Court’s “federal question” jurisdiction under 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”).
However, another federal statute, 28 U.S.C. § 1257, grants appellate jurisdiction over any final decision rendered by the highest appellate court of any of the several States exclusively to the Supreme
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Court of the United States. In the Rooker and Feldman decisions, the Supreme Court held that in order to give effect to this provision, federal district courts must be held to lack subject matter jurisdiction over an action that effectively serves as an appeal from a state court judgment. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).
In Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), the Supreme Court recently clarified that the doctrine applies only where the prior state court judgment is the source of the injury complained of in the subsequent federal action. Where the subsequent action merely calls into question the propriety of the prior state court judgment, the effect of the prior state court adjudication is governed by ordinary application of principles regarding claim and issue preclusion. Exxon Mobil, 544 U.S. at 291-94; Coles v. Granville, 448 F.3d 853, 858 (6th Cir. 2006). Thus, the Rooker-Feldman doctrine will not prevent a plaintiff from suing a participant in a prior state court proceeding for allegedly filing a false affidavit resulting in an adverse determination against the plaintiff. Brown v. First Nat. Mtg. Corp., 2006 WL 3289232, *3 (6th Cir. 2006) (unpublished disposition) (Rooker-Feldman does not bar “an independent claim, ‘albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party.’”). It does apply where the federal plaintiff identifies the prior state court decision as the source of the injury. The Sixth Circuit has explained:
The inquiry then is the source of the injury the plaintiff alleges in the federal complaint. If the source of the injury is the state court decision, then the Rooker-Feldman doctrine would prevent the district court from asserting jurisdiction. If there is some other source of injury, such as a third party’s actions, then the plaintiff asserts an independent claim. McCormick v. Braverman, 451 F.3d 382, 392-94 (6th Cir. 2006). A number of courts, including this one, have recited the Second Circuit’s recent articulation of the distinction as one of the most instructive: Suppose a state court, based purely on state law, terminates a father’s parental rights and orders the state to take custody of his son. If the father sues in federal court for the return of his son on grounds that the state judgment violates his federal substantive
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due-process rights as a parent, he is complaining of an injury caused by the state judgment and seeking its reversal. This he may not do [under Rooker-Feldman], regardless of whether he raised any constitutional claims in state court, because only the Supreme Court may hear appeals from state-court judgments. .... Suppose a plaintiff sues his employer in state court for violating both state anti-discrimination law and Title VII and loses. If the plaintiff then brings the same suit in federal court, he will be seeking a decision from the federal court that denies the state court’s conclusion that the employer is not liable, but he will not be alleging injury from the state judgment. Instead, he will be alleging injury based on the employer’s discrimination. The fact that the state court chose not to remedy the injury does not transform the subsequent federal suit on the same matter into an appeal, forbidden by Rooker-Feldman, of the state-court judgment. Hoblock v. Albany Co. Bd. of Elections, 422 F.3d 77, 87-88 (2nd Cir. 2005). Thus, if a plaintiff in a subsequent federal action asserts that the prior state court judgment violated his substantive or procedural due process rights, the prior state court action is identified as the source of the injury, and the Rooker-Feldman doctrine negatives the assertion of subject matter jurisdiction by the federal district court. McCormick, 451 F.3d at 394. In contrast, where a plaintiff simply re-asserts the same claims in federal court that he or she has previously asserted without success in the state courts, such claims must clear the hurdles presented by preclusion law, not the Rooker-Feldman doctrine. However, “there are certain exceptions to this rule of thumb. For example, if a third party’s actions are the product of a state court judgment, then a plaintiff’s challenge to those actions are in fact a challenge to the judgment itself.” McCormick, 451 F.3d at 394. Thus, the Rooker-Feldman doctrine will apply even where the plaintiff does not expressly identify the prior state court judgment as the source of the injury where the conduct complained of in the subsequent federal case is either enabled by, or is the inevitable consequence of, the prior state court judgment. In his brief, Baze asserts that his proposed intervenor complaint does not identify the prior judgment of the Kentucky state court as the source of his injury, and therefore the Rooker-Feldman doctrine does not prevent the Court from asserting subject matter jurisdiction over the claims asserted
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in his complaint. Of the 494 numbered paragraphs in Baze’s proposed intervenor complaint, only one mentions the Franklin Circuit Court’s judgment, and indicates only that this judgment is not entitled to preclusive effect because it was rendered without affording him a full and fair opportunity to litigate his claims. [Dkt. 101 Exh. 2 ¶19] The remainder of the complaint sets forth the factual basis for his Eighth Amendment claims by describing the conduct of the Defendants.
The Defendants counter that although Baze did not expressly identify the prior state court judgment as the source of his injury through the use of “magic words,” Rooker-Feldman should nonetheless apply because the conduct about which Baze complains is the “product” of the prior state court litigation, and thus falls within the exception articulated in McCormick. In support of this position, Defendants note that KDOC revised its lethal injection protocol because it was ordered to do so by the Franklin Circuit Court, and it is this revised protocol, a “product” of the prior state litigation, which Baze seeks to challenge.
Because Baze does not expressly identify the prior Kentucky judgment as the source of his injury in the four corners of his proposed intervenor complaint, his claims does not present a clear case for application of the Rooker-Feldman doctrine. McCormick, 451 F.3d at 394. The question remaining, therefore, is whether the lethal injection protocol that Baze seeks to challenge is either enabled by, or is the inevitable consequence of, the prior Kentucky judgment to fall within the McCormick exception.
In Abbott v. Michigan, 474 F.3d 324 (6th Cir. 2007), a case decided after the parties completed their briefing on this issue, the Sixth Circuit squarely addressed the McCormick exception. In Abbott, in prior state court proceedings certain state prisoners unsuccessfully challenged a Michigan statute which permitted the state to make an assessment against a prisoner’s ERISA-qualified retirement account to offset the costs of his incarceration. The prisoners subsequently brought a federal action asserting that the Michigan statute permitting the assessment violated ERISA and the Supremacy Clause
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and seeking damages for injuries they received as a result of the application of the law.
The Sixth Circuit found that the facial challenge to the Michigan statute was not forbidden under
Rooker-Feldman because the source of the alleged injury was the law itself, not the prior state court
judgment. Abbott, 474 F.3d at 328. (“the Rooker-Feldman doctrine ‘does not prohibit federal district
courts from exercising jurisdiction where the plaintiff’s claim is merely a general challenge to the
constitutionality of the state law applied in the state action, rather than a challenge to the law’s
application in a particular state case.’”) (quoting Hood v. Keller, 341 F.3d 593, 597 (6th Cir. 2003)).
The facial challenge was, however, barred under Michigan’s rule of claim preclusion. Id. at 331.
With respect to the prisoners’ claims for damages, the Sixth Circuit explained:
In this case, the plaintiffs are ostensibly complaining of injuries caused by the actions of third parties-the conversion of their pension benefits by state officials-but those actions were the direct and immediate products of the state-court SCFRA judgments. The plaintiffs’ claims and arguments make this clear: They assert that the state courts erred in issuing the SCFRA judgments and do not claim that the defendants have injured them in any way except by strictly executing those judgments. Accordingly, the plaintiffs’ claims of specific injuries that they have suffered are actually challenges to the state-court SCFRA judgments and are barred by the Rooker-Feldman doctrine.
Abbott, 474 F.3d at 329. The facts and holding of the Abbott case illustrate the difficulty in determining when a defendant’s conduct is truly the direct “product” of a prior state court judgment.1 This much is
clear: a broad reading of the range of conduct considered to be such a “product” would greatly expand
the scope of cases covered by the Rooker-Feldman doctrine, a result contrary to the Supreme Court’s express direction in Exxon Mobil.2
1 Indeed, even the narrow test devised by this Court, supra, to determine when such conduct is the “product” of the state court judgment, i.e., that the conduct is “either enabled by, or is the inevitable consequence of, the prior state judgment,” bears an uncomfortable similarity to the “inextricably intertwined” test rejected as an analytically unsound tautology in Exxon Mobil.
2 The circumstances of the Abbott case are instructive. In Abbott, it appeared that the state court defendants were seeking assessments under the Michigan statute before the state court litigation was concluded. Accordingly, it is hard to consider the assessments sought after the litigation concluded as anything other than a continuation of Michigan’s prelitigation efforts to enforce the law as written, not as a direct consequence of Michigan’s prevailing position in the state court litigation. Nonetheless, the Sixth Circuit found that it was a “product” of that favorable outcome. If applied
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Considering the McCormick exception in light of the Supreme Court’s caution in Exxon Mobil regarding the limited scope of cases within the reach of the Rooker-Feldman doctrine, the Court concludes that the conduct complained of in Baze’s proposed intervenor complaint is not the “product” of the prior Kentucky state court litigation, and hence is not prohibited under the Rooker-Feldman doctrine. In making this determination, the Court notes that at the time Baze instituted the action in Franklin Circuit Court, KDOC was not “applying” the lethal injection protocol to Baze, and was still not doing so at the time Baze filed his motion to intervene in this action, nor was there an imminent threat that it would do so in the near future at either point in time. In both complaints, Baze is challenging the constitutionality of an ongoing policy of the KDOC. The minor change in Kentucky’s lethal injection protocol required by the Kentucky state courts does not change this result, as the change does not appear to affect the core of Baze’s allegations, and his challenge goes to a number of policies and procedures which had been in place for many years prior to the conclusion of the state court litigation. Because Baze does not identify the judgment of the Kentucky state courts as the source of his injury, and because the injury about which he does complain, the future conduct of KDOC officials in implementing the lethal injection protocol in carrying out his death sentence, is not the “product” of that litigation, the Rooker-Feldman doctrine does not apply to prevent Baze from asserting his claims here.
in this fashion, the McCormick exception would appear likely to swallow the rule of Exxon Mobil. In order to prevent the McCormick “exception” from blurring the distinction between the Rooker-Feldman
doctrine and preclusion principles which the Supreme Court sought to reinvigorate in Exxon Mobil, the “exception” should be read narrowly to apply to only those scenarios where the conduct complained of by the plaintiff in the subsequent federal action is not merely consistent with the prior state court judgment, but is an evident consequence of it. Requiring some causal connection makes a clearer case for application of the exception. For example, imagine a plaintiff who unsuccessfully resists a mortgage foreclosure action on his home in state court. Upon the bank’s motion for an order for sale, the homeowner challenges the notice from the bank as not timely sent and inadequate to advise him of his right of redemption. The homeowner loses in state court, and then brings a subsequent action in federal court asserting that the foreclosing bank’s conduct at the master commissioner’s sale violated his due process rights on the same grounds. Apart from whether the claims are barred under preclusion principles, the second action is clearly an attack upon conduct that was enabled by the state court’s prior judgment, and hence would fall squarely within the McCormick’s grounds for application of the Rooker-Feldman doctrine, notwithstanding its failure to expressly identify the prior state court judgment as the source of the injury.
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II. MOTION TO INTERVENE A. Permissive Intervention. Baze seeks permission to intervene in this action pursuant to Federal Rule of Civil Procedure
24(b), which provides: (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
To establish a viable case for permissive intervention, a proposed intervenor must show that its motion to intervene is timely made and that he or she alleges at least one question of law or fact common to those already before the court. The court must then consider whether permitting intervention will cause any undue delay or prejudice to the existing parties, and balance any other relevant factors to determine whether intervention should be allowed. United States v. Michigan, 424 F.3d 438, 445 (6th Cir. 2005).
With respect to satisfying these factors, the Court finds that the grounds supporting Baze’s motion to intervene are not materially different from those presented by Leonard. Baze filed his motion before any discovery had taken place, and subsequent developments have not significantly changed the procedural posture of this case. Baze’s allegations regarding the constitutionality of Kentucky’s lethal injection protocol present common issues of fact and law to those allegations made by Moore and Leonard, notwithstanding the presence of certain facts unique to Baze which may alter the analysis of his claims somewhat. And it does not appear that permitting Baze to intervene at this juncture would prejudice any of the existing parties. The evaluation of these factors counsels in favor of granting Baze leave to intervene. The Court will, however, consider whether Baze’s claim is barred by claim preclusion as a relevant factor in determining whether intervention should be allowed. United States v. Michigan, 424 F.3d at 445.
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B. Claim Preclusion. Having filed his motion to intervene 5 days after losing his appeal before the Kentucky Supreme Court, Baze understandably spends the bulk of his moving papers asserting that his claims are not barred by res judicata, also known as claim preclusion. The rule permitting a movant to seek intervention in an existing action presupposes that the movant has a right to maintain a claim for the relief he seeks. Donson Stores, Inc. v. American Bakeries Co., 58 F.R.D. 481 (S.D.N.Y. 1973) (intervention denied for lack of standing to assert claim); Rhode Island Federation of Teachers, AFL-CIO v. Norberg, 630 F.2d 850 (1st Cir. 1980) (movant seeking intervention, by right or by permission, must state a colorable claim or defense to the action); AT&T Corp. v. Sprint Corp., 407 F.3d 560 (2d Cir. 2005). In addition, because Baze seeks relief against government officers, federal law requires the Court to review the proposed intervenor complaint to ensure that the claims are not frivolous or fail to state a claim. 28 U.S.C. § 1915A (“The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”). The federal rule of claim preclusion acts to bar a claim where there is: (1) a prior final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their ‘privies’; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action. Browning v. Levy, 283 F.3d 761, 771 (6th Cir. 2002). State courts afford such preclusive effect to prior judgments of courts within the same state by common law rule. See Yeoman v. Com., Health Policy Board, 983 S.W.2d 459, 464 (Ky. 1998). The federal constitution requires the state courts of one state to afford such preclusive effect to the final
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judgments of courts located in other states. U.S. Const., Art. IV, § 1. While that constitutional command does not apply to federal courts, by statute Congress has required federal courts to similarly afford full faith and credit to state court judgments. 28 U.S.C. § 1738.
In determining the scope of the preclusive effect to be given to a prior state court judgment, Section 1738 requires a federal court to give a state court judgment the same preclusive effect as would a state court in the state where the judgment was rendered. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81-85 (1984); McCormick, 451 F.3d at 397. Accordingly, this Court must apply Kentucky preclusion law to determine the scope of the preclusive effect to be given to a prior judgment of one of its courts.
In Kentucky, claim preclusion applies to bar “not only to the issues disposed of in the first action, but to every point which properly belonged to the subject of the litigation in the first action and which in the exercise of reasonable diligence might have been brought forward at the time.” May v. Webb, Ky.App., 2004 WL 1699910 (2004); Whittaker v. Cecil, Ky., 69 S.W.3d 69, 72 (2002) (final judgment precludes subsequent litigation of claims that were or could have been presented in the prior action). In the Complaint filed in Franklin Circuit Court, Baze and Bowling asserted that the Defendants’ lethal injection protocol would violate the Eighth Amendment because of the use of pancurium bromide; the combination and sequence of the drugs involved; inadequate training of the execution team; inadequate medical equipment; the use of a “cut-down” procedure; and the refusal to publicly disclose the lethal injection protocol.
In his motion to intervene and in his reply in further support of his motion to intervene, Baze implicitly concedes that the claims he seeks to present in this case are the same as those previously raised and rejected in the Kentucky courts. He does not argue that res judicata does not apply here; rather, he asserts that he was not afforded a full and fair opportunity to litigate those claims before the
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Kentucky courts. Having reviewed Baze’s complaint in the action before the Franklin Circuit Court and his proposed intervenor complaint, there is no question that the elements required for claim preclusion to apply are satisfied here. Baze was a party to the Kentucky action, and raised an Eighth Amendment challenge to myriad aspects of Kentucky’s lethal injection protocol, which was rejected on the merits by the Franklin Circuit Court, and that judgment was upheld on appeal by the Kentucky Supreme Court. The claims he asserts here were actually raised and rejected in those proceedings; to the extent Baze’s present proposed intervenor complaint does not identically mirror that filed in the state court action, his new or additional claims are certainly of such a character that they “properly belonged to the subject of the litigation in the first action.” Baze’s claims are therefore barred by claim preclusion, Whittaker v. Cecil, Ky., 69 S.W.3d 69, 72 (2002); Browning v. Levy, 283 F.3d 761, 771 (6th Cir. 2002), unless Baze can demonstrate an exception to the application of that doctrine.
C. Full and Fair Opportunity. In Montana v. United States, the Supreme Court set forth the basic rule of claim preclusion: A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a “right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies.” Montana v. United States, 440 U.S. 147, 153 (1979) (quoting S. Pac. R.R. Co. v. United States, 168 U.S. 1, 48-49 (1897)); Allen v. McCurry, 449 U.S. 90, 101 (1980) (“Congress [did not intend] to allow relitigation of federal issues decided after a full and fair hearing in a state court simply because the state court’s decision may have been erroneous.”). The finality to be afforded a prior judgment, however, assumes that the process used to reach that judgment was sound in its fundamentals: “Redetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” Montana, 440 U.S. at 164 n.11. The Supreme Court has found that the “doubt” to which the Montana Court referred
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can be found in only a single set of circumstances: [T]he judicially created doctrine of collateral estoppel does not apply when the party against whom the earlier decision is asserted did not have a “full and fair opportunity” to litigate the claim or issue.
Kremer v. Chem. Constr. Corp., 456 U.S. 461, 480-81 (1982). In his motion to intervene, Baze asserts that he was denied a “full and fair opportunity” to litigate
his claims regarding the lethal injection protocol because the state circuit court denied him the opportunity to depose the execution team members in an effort to obtain further information about how that protocol would, as a practical matter, be carried out. The record reveals that Baze sought review of the circuit court’s ruling by seeking a writ from the Kentucky Supreme Court, a request denied on procedural grounds. As previously noted, Baze alleges that he pursued this discovery issue to the Kentucky Supreme Court on direct appeal, a fact the Defendants contest but on which the record is silent. For their part, the Defendants contend that Baze was granted ample discovery during the state court proceedings, and that Baze was afforded a further opportunity to rectify any deficiency in discovery by pursuing this issue on appeal, citing Kremer, 456 U.S. at 481 (“A party’s fail[ure] to avail himself of the full procedures provided by state law does not constitute a sign of their inadequacy.”).
Where the prior adjudication at issue was rendered by a state, rather than federal, court, the full faith and credit statute, 28 U.S.C. § 1738, applies. In such instances,
[S]tate proceedings need do no more than satisfy the minimum procedural requirements of the Fourteenth Amendment’s Due Process Clause in order to qualify for the full faith and credit guaranteed by federal law. Kremer, 456 U.S. at 481.3
3 Even after the Supreme Court articulated its due process standard in Kremer, some courts have held that a prior state court litigant was denied a full and fair opportunity to litigate an issue when “without fault of his own the [party to be estopped] was deprived of crucial evidence or witnesses in the first litigation.” E.g., General Dynamics Corp. v. American Tel. & Tel. Co., 650 F.Supp. 1274, 1288 (N.D. Ill. 1986) (quoting Blonder-Tongue Lab., Inc. v. Univ. of Illinois Found., 402 U.S. 313 (1971)). The error in reliance on Blonder-Tongue is three-fold. First, that decision, entered in 1971, was entirely or substantially superseded by Kremer in 1982. Second, Blonder-Tongue involved a prior federal decision, and hence was not subject to Section 1738, from which the Supreme Court derived its due process
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The Fourteenth Amendment’s Due Process Clause requires, in essence, notice and an opportunity to be heard. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46 (1985) (“The essential requirements of due process ... are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.”) (citing Henry Friendly, “SOME KIND OF HEARING,” 123 U. PA. L. REV. 1267, 1281 (1975)); see also Armstrong v. Manzo, 380 U.S. 545, 550, 552 (1965) (“‘Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”)
As a plaintiff in the Franklin Circuit Court action, Baze does not and can not contend that he lacked adequate notice of the proceedings below. His challenge to the propriety of the circuit court’s discovery ruling denying him the opportunity to depose members of the execution team is more appropriately considered a challenge to the sufficiency of his “opportunity to be heard.” In essence, Baze asserts that the denial of that discovery prevented him from obtaining the full measure of the evidence that he wished to present in support of his constitutional claim. To be sure, if a party’s ability to muster evidence in support of his claim is so drastically circumscribed as to render his opportunity to be heard little more than an empty gesture, the Due Process Clause would be violated. See Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (“A fundamental requirement of due process is ‘the opportunity to be heard.’
analysis applicable to review of prior state court decisions. See Brown v. St. Louis Police. Dept., 691 F.2d 393, 395 (8th Cir. 1982) (“The Supreme Court has expressly distinguished between causes of action previously litigated in a state court and those formerly tried in a federal court.”) Finally, the prior decision under review in Blonder-Tongue was one of patent invalidity, which under Triplett v. Lowell, 297 U.S. 638 (1936), had been completely insulated from the defense of claim or issue preclusion. Abrogating that rule for the first time, the Supreme Court sought to mitigate the impact of the decision by providing patent owners with defenses to a claim of collateral estoppel far beyond those available to ordinary litigants, including defenses related to choice of forum, a privy’s incentive to litigate, the trial court’s adherence to Graham v. John Deere Co., deprivation of crucial evidence or witnesses, and the trial court’s utter failure to grasp the technical subject matter and issues in suit. Blonder-Tongue, 402 U.S. at 333. In sum, the Blonder-Tongue standard has no bearing on the “full and fair opportunity” exception as applied to prior state court decisions.
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It is an opportunity which must be granted at a meaningful time and in a meaningful manner.”) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). A party’s opportunity to be heard must be “full and fair.”
But as Defendants indicate, discovery in the Franklin Circuit Court was available to Baze from August 2004 until the trial in April 2005. Baze did not move to compel the Defendants to permit the depositions of the execution team members until January 1, 2005, approximately five months after Baze’s complaint was filed. Baze deposed over a dozen individuals from KDOC and twenty witnesses testified over the course of a seven-day trial. Those cases in which the courts have denied res judicata effect to prior state proceedings have typically involved quasi-judicial proceedings where the hearings were held with only a few days’ notice, the opportunities to present evidence or arguments were strictly limited, and the scope of appeal was very narrow. The full trial on the merits here stands in stark contrast to such limited proceedings.
Baze points to this Court’s conclusion about the relevance of testimony from execution team members as grounds for arguing that the Franklin Circuit Court’s purportedly contrary conclusion rendered those proceedings constitutionally deficient. As a threshold matter, Baze’s argument fails on evidentiary grounds: simply put, Baze’s failure to put evidence in the record regarding the basis for his discovery requests, the Defendants’ opposition thereto, and the Circuit Court’s denial of that request prevents the Court from drawing any conclusions regarding the Franklin Circuit Court’s view of the discoverability and relevance of that information.
Even if this Court were to disagree with the conclusions of the state court regarding the appropriateness of the requested discovery, that disagreement affords no basis for concluding that the state court judgment was rendered without affording Baze a full and fair opportunity to present his claims. Allen v. McCurry, 449 U.S. 90, 101 (1980) (“Congress [did not intend] to allow relitigation of federal issues decided after a full and fair hearing in a state court simply because the state court’s
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decision may have been erroneous.”). Section 1738 requires federal courts to afford full faith and credit
to all state court judgments entered in compliance with the requirements of the Due Process Clause. It
does not permit a federal district court to sit as a de facto federal appeals court, giving effect to only that
subset of state court judgments which the federal district court finds were entered free of error:
While the district court agreed that the state courts had erroneously applied the relation-back doctrine, it recognized that a state court’s misapplication of its own law was not a legitimate basis for avoiding the application of res judicata principles. ... [In Montana and Kremer], [t]he Supreme Court did not intend for parties to be able to bring a § 1983 action reasserting the same claims every time there was evidence that a state court misapplied its own law in a prior adjudication. Rather, the Court defined the content of the “full and fair opportunity” requirement by stating that the “state proceedings need do no more than satisfy the minimum procedural requirements of the Fourteenth Amendment’s Due Process Clause in order to qualify for the full faith and credit guaranteed by federal law.” Kremer, 456 U.S. at 481. Thus, as long as a state’s procedures were constitutionally sufficient, the fact that a state court may have erroneously applied its own law does not mean that it denied a plaintiff a full and fair opportunity to litigate its claims. ... For obvious reasons, the Court declines to transform the federal district courts into state appellate courts.
Rainey Bros. Constr. Co. v. Memphis and Shelby Co. Bd. of Adjustments, 1999 WL 220128, *3 (6th Cir.
1999) (unpublished disposition); see also Am. Nat’l Bank & Trust Co. v. City of Chicago, 826 F.2d 1547,
1550 (7th Cir. 1987) (“due process requires only that a person have a meaningful opportunity to present
his claims; it does not guarantee success.”).
Here, the testimony of the execution team members may indeed have been relevant to Baze’s
claims in the Kentucky litigation. However, the possible relevance of this evidence is simply immaterial
as long as the proceedings Baze was provided to obtain the evidence were consistent with Due Process
requirements. The proceedings before the Kentucky state courts need not be free from error in order to
be afforded full faith and credit, they need only satisfy the minimum requirements of the Due Process
Clause. The record before the Court indicates that the prior proceedings amply satisfied Baze’s right
to procedural due process, and are entitled to full faith and credit. Abbott v. Michigan, 474 F.3d 324 (6th
Cir. 2007). Because the claims asserted in Baze’s proposed intervenor complaint are barred by claim
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preclusion under 28 U.S.C. § 1738, Baze’s motion to intervene in these proceedings must be denied.

United States v. Michigan, 424 F.3d 438, 445 (6th Cir. 2005).

CONCLUSION

Accordingly, IT IS ORDERED AS FOLLOWS:

1. Baze’s “Motion for Leave to Supplement Ralph Baze’s Reply to Response in Opposition to Emergency Motion to Intervene as Plaintiff-Intervenor” [Dkt. 114] is GRANTED.

2. Plaintiffs Moore and Leonard’s “Joint Motion to Strike the Portions of Defendants’ RookerFeldman Memorandum that Argue that Moore and Leonard’s Suit Should be Dismissed” [Dkt. 129] is DENIED; their “Joint Motion for Leave to File a Response to Defendants’ RookerFeldman Memorandum” [Dkt. 130] is GRANTED.

3. Baze’s “Emergency Motion to Intervene as Plaintiff-Intervenor” [Dkt. 101] is DENIED.

4. The following motions by proposed intervenor Ralph Baze:

a. “Emergency Motion to Compel Defendants to Conduct Appropriate Background Checks on all Present Members of the Execution Team and to Disclose to Counsel for Baze All Non-Identifying Results of those Checks” [Dkt. 162];

b. “Emergency Motion to Partially Lift Order Staying Discovery” [Dkt. 163];

c. “Emergency Motion for a Status Conference on Litigation Concerning Ralph Baze and for a Scheduling Order Setting Deadlines to Respond to Motions and to Comply with any Discovery” [Dkt. 164];

d. “Emergency Motion for a Preliminary Injunction Barring Ralph Baze’s Execution Pending the Supreme Court of the United States’ Disposition of the Petition for Certiorari in Cooey v. Strickland” [Dkt. 165];

e. “Emergency Motion to Compel Defendant to Disclose a Copy of the Execution Protocol it Intends to Use to Execute Ralph Baze” [Dkt. 167];

f.

“Emergency Motion for a Preliminary Injunction Barring Ralph Baze’s Execution

Pending a Ruling on his Motion to Intervene” [Dkt. 172];

g. “Emergency Motion for a Preliminary Injunction Barring Ralph Baze’s Execution Pending Resolution of the Merits of his Challenge to Defendants’ Lethal Injection Chemicals and Procedures” [Dkt. 177]; and

h. “Emergency Motion for Leave under Local Rule 7.1 to File a Memorandum of Law in Excess of 40 Pages in Support of Ralph Baze’s Emergency Motion for a Preliminary

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Injunction Pending Resolution of the Merits of his Challenge to Defendants’ Lethal Injection Chemicals and Procedures” [Dkt. 178] are DENIED AS MOOT. 5. This is a final and appealable order and there is no just cause for delay. Dated this 25th day of September, 2007.
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 Case: 3:06-cv-00022-KKC Doc #: 165-2 Filed: 08/26/07 Page: 1 of 13 - Page ID#: 3497

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

ELECTRONICALLY FILED

____________________________________

)

BRIAN KEITH MOORE, and

)

)

JEFFREY LEONARD

)

)

Plaintiffs

)

)

v.

)

)

JOHN D. REES,

)

Commissioner,

)

Kentucky Department of Corrections,)

Frankfort, Kentucky

)

)

THOMAS SIMPSON,

)

Warden, Kentucky State

)

Penitentiary, Eddyville Kentucky, )

)

SCOTT HAAS

)

Medical Director for the

)

Kentucky Department of Corrections )

)

ERNIE FLETCHER,

)

Governor of the Commonwealth )

of Kentucky

)

)

and

)

)

UNKNOWN EXECUTIONERS,

)

)

Defendants.

)

____________________________________)

CIVIL ACTION # 3:06-CV-22
CAPITAL CASE EXECUTION IMMINENT EXECUTION SCHEDULED FOR SEPTEMBER 25, 2007

MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION FOR A PRELIMINARY INJUNCTION BARRING RALPH BAZE’S EXECUTION PENDING
THE SUPREME COURT OF THE UNITED STATES’ DISPOSITION OF THE PETITION FOR CERTIORARI IN COOEY V. STRICKLAND

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Ralph Baze respectfully requests that this Court grant a preliminary injunction barring Defendants from executing him until the Supreme Court of the United States has decided Cooey v. Strickland. In Cooey, the United States Court of Appeals for the Sixth Circuit ruled that the statute of limitations on a lethal injection claim begins to run when the condemned inmate reasonably should have known of the information giving rise to the action and could have filed suit. As this Court recognized, Cooey is “potentially dispositive of the claims asserted” in this case. [Record No. 139 at 34]. Yet, Cooey is not final and thus could be reversed by the United States Supreme Court, which may agree with post-Cooey courts that have ruled that the statute of limitations does not apply to lethal injection challenges.1
Recognizing the importance of the issues decided in Cooey and that it not yet enforceable, the Sixth Circuit stayed its mandate pending en banc review and then again pending filing of a petition for a writ of certiorari.2 By staying the mandate pending the petition for a writ of certiorari, the Sixth Circuit recognized that the “certiorari petition [will] present a substantial question and that there is good cause for a stay.”3 In line with that, after deciding Cooey, the Sixth Circuit refused to vacate the injunction the federal district court granted to Kenneth Biros to litigate lethal injection issues.4 The United States Supreme Court likewise refused to vacate the injunction even though Cooey made his claim time barred.5 That injunction is still in effect. Similarly, after Cooey was decided, the United States District Court for the Southern District of Ohio granted a preliminary injunction to Clarence Carter, noting that until the mandate issues,
1 See, e.g., Jones v. Allen, 483 F.Supp.2d 1142 (M.D.Ala. 2007). 2 Exhibit 6 (Sixth Circuit order staying mandate in Cooey). 3 FRAP 41(d)(2)(A). 4 Exhibit 1 (Sixth Circuit order denying motion to vacate Biros’ preliminary injunction). 5 Exhibit 2 (United States Supreme Court order denying motion to vacate preliminary injunction granted to Biros).
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Cooey is not enforceable.6 While the injunction remains in force,7 all litigation in Cooey is on hold pending the United States Supreme Court’s action on the petition for a writ of certiorari.
Cooey’s certiorari petition will be filed at the end of August 2007. The State of Ohio has thirty days to file a response in opposition, and the case will be reviewed shortly thereafter, with a decision granting or denying certiorari expected by late October. Despite this, Defendant Fletcher set Ralph Baze’s execution for September 25, 2007 - - approximately one month before the Supreme Court will decide Cooey’s petition for a writ of certiorari.
Defendants should not be allowed to control the timing of the litigation in this case in such a manner that prevents a potentially dispositive issue from first being decided by the highest court in the land. Because Cooey is potentially dispositive of the underlying action (which could impact Baze’s right to intervene and to receive a preliminary injunction on the underlying merits) and will become final soon, this Court should take the same action the Southern District of Ohio, the Sixth Circuit, and the United States Supreme Court has taken with the other execution dates directly impacted by Cooey - - grant a preliminary injunction barring Baze’s execution until the mandate is issued in Cooey,8 which, by operation of the Federal Rules of Appellate Procedure, will occur immediately upon the United States Supreme Court rendering a decision.9
6 Exhibit 3 (Southern District of Ohio order granting Carter a preliminary injunction). 7 It appears that Ohio never sought to vacate the preliminary injunction granted to Clarence Carter. 8 The United States District Court for the District of Delaware took the same action in regard to the Supreme Court of the United States pending action in Hill v. McDonough. Recognizing that Hill could be dispositive of the lethal injection case pending before it, the court granted a preliminary injunction barring Robert Jackson’s execution pending the outcome of Hill. Jackson v. Taylor, 2006 WL 1237044 (D.Del. May 9, 2006) (exhibit 4). 9 FRAP 41(d)(2)(B) says that a stayed mandate will remain in force “until the Supreme Court’s final disposition.” Under FRAP 41(d)(2)(D), “[t]he court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for a writ of certiorari is filed.”
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INTRODUCTION AND PROCEDURAL HISTORY On August 9, 2004, well before he exhausted federal habeas corpus remedies, Ralph Baze filed a lethal injection challenge in state court. On March 21, 2005, the United States Supreme Court denied Baze’s petition for a writ of certiorari on the denial of federal habeas corpus relief. Although no stay of execution was in place, Defendants did not seek an execution date. The state trial court decided the lethal injection case on July 8, 2005, after holding a trial in which counsel for Baze were not allowed to question any member of the execution team. The trial court held that inserting an I.V. in the neck was unconstitutional but decided the case against the plaintiffs in all other regards. The Kentucky Supreme Court affirmed that decision on November 22, 2006. Despite that decision and no stay of execution being in place, Defendants still did not seek an execution date. On November 27, 2006, Baze moved to intervene in this action, which has been pending since April 19, 2006. In response to that motion, this Court ordered briefing on the applicability of the Rooker-Feldman Doctrine, which was completed on January 22, 2007. This Court has yet to decide Baze’s motion to intervene. Baze has moved to expedite a ruling on his motion to intervene. While the Rooker-Feldman briefing was taking place, Baze sought rehearing in state court. No execution date was sought while rehearing was pending. Rehearing was denied on April 19, 2007. Defendants did not immediately request an execution date on Baze. Shortly after rehearing was denied, Baze asked the Kentucky Supreme Court for a stay of execution pending the filing of a petition for a writ of certiorari. Defendants objected. On May 4, 2007, fifteen days after rehearing was denied and with no execution date having been requested, the Kentucky Supreme Court granted Baze’s motion, staying Baze’s execution until July 18, 2007 - -
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the longest amount of time for which the Kentucky Supreme Court, under Kentucky law, is allowed to stay an execution pending a petition for a writ of certiorari. When that stay expired, Defendants still did not request an execution date. Instead, they waited nearly a month and then requested an execution date just before filing its brief in opposition to the petition for a writ of certiorari. Defendant Fletcher signed Baze’s execution warrant two days after Defendants filed their Brief in Opposition to certiorari in the state court case.
While lethal injection litigation on behalf of Baze was playing out in state court and before this Court, the United States Court of Appeals was dealing with an issue of first impression - - when does the statute of limitations begin to run in an action challenging chemicals and procedures used in lethal injections? On March 2, 2007, more than three months after Baze moved to intervene in this case, the Sixth Circuit answered the statute of limitations question in Cooey v. Strickland.10 That, however, was not the end of the story.
Recognizing that Cooey could be dispositive on this case, shortly after Cooey was decided, this Court ordered briefing on the application of the statute of limitations and stayed all discovery pending its ruling on the application of the statute of limitations. [Record No. 139]. This Court has yet to rule on whether the statute of limitations bars this action. One reason for that is because Cooey is not yet final and the Sixth Circuit and United States Supreme Court has taken action suggesting that Cooey should not be applied until the United States Supreme Court has the opportunity to decide whether to grant Cooey’s petition for a writ of certiorari.
After ruling that Cooey’s lethal injection challenge was barred by the applicable statute of limitations, the Sixth Circuit stayed its mandate pending a ruling on the petition for rehearing en banc, thereby maintaining the preliminary injunctions that had been granted by the United
10 479 F.3d 412 (6th Cir. 2007).
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States District Court for the Southern District of Ohio.11 After staying the mandate, the Sixth Circuit refused to lift an injunction that had been granted to Kenneth Biros, who had intervened in the Cooey case.12 The United States Supreme Court also refused to vacate that injunction.13 And, the United States District Court for the Southern District of Ohio continued to grant preliminary injunctions pending finality of Cooey.14
On June 1, 2007, a bitterly divided en banc panel of the Sixth Circuit denied en banc review in Cooey.15 Yet, the Sixth Circuit stayed the mandate pending disposition of a petition for a writ of certiorari.16 After doing so, it refused to vacate the preliminary injunction granted to Kenneth Biros, who had intervened in Cooey.17 Preliminary injunctions remain in force for both Kenneth Biros and Clarence Carter even though the Sixth Circuit decided that their lethal injection claims are barred by the statute of limitations. This is because the United States Supreme Court may soon weigh in on this issue of first impression and quite possibly will resoundingly reject Cooey as all courts addressing the issue since Cooey have done.18
Cooey’s petition for a writ of certiorari will be filed this week (by the end of August) and the United States Supreme Court will decide whether to take the case by the end of October. If it does, the mandate in Cooey will remain stayed until the Court decides Cooey.19 If certiorari is denied, the mandate will issue immediately upon the denial of certiorari.20 Despite the fact that
11 Exhibit 5 (Docket sheet in Cooey v. Strickland, No. 05-4057). The docket sheet does not expressly state that the mandate was stayed pending rehearing, but there is no indication on the docket sheet that the mandate issued and it surely did not for the court stayed the issuance of the mandate pending the filing of a petition for a writ of certiorari. FRAP 41(d)(1) says, “[t]he timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.” 12 Exhibit 1 (Sixth Circuit order denying motion to vacate Biros’ preliminary injunction). 13 Exhibit 2 (United States Supreme Court order denying motion to vacate preliminary injunction granted to Biros). 14 Exhibit 3 (Southern District of Ohio order granting Carter a preliminary injunction). 15 Cooey v. Strickland, 489 F.3d 775 (6th Cir. 2007). 16 Exhibit 6 (Sixth Circuit order staying mandate in Cooey). 17 Exhibit 1 (Sixth Circuit order denying motion to vacate Biros’ preliminary injunction). 18 See, e.g., Jones v. Allen, 483 F.Supp.2d 1142 (M.D.Ala. 2007). 19 FRAP 41(d)(2)(B). 20 FRAP 41(d)(2)(D).
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the petition for a writ of certiorari in Cooey will be decided and despite the fact that discovery in this case has been stayed pending a determination of the applicability and impact of Cooey, Defendants have scheduled Ralph Baze’s execution for September 25, 2007 - - shortly before Cooey is to be decided
ARGUMENT As this Court already recognized, the Sixth Circuit’s decision in Cooey may be dispositive of the claims asserted in this case. [Record No. 139 at 34]. Cooey, however, is not final because the mandate has yet to issue and the petition for a writ of certiorari is about to be filed.21 Thus, it remains to be determined if Cooey applies at all or if Cooey will be modified in a material way. All other courts dealing with the issue have flat out rejected Cooey, thereby increasing the likelihood that the Supreme Court of the United States will grant Cooey’s petition for a writ of certiorari. The ambiguity surrounding the applicability of Cooey, along with the reality that the ambiguity will soon be resolved, means that this Court should enjoin Defendants from executing Ralph Baze until the mandate has issued in Cooey (when the United States Supreme Court decides the case). Because the Supreme Court could render a decision in Cooey that would preclude this Court from hearing this case or a ruling that would require this Court to hear the case, it would be a waste of judicial resources for this Court to decide the application of Cooey to this case until we know if the Supreme Court will change the analysis this Court must conduct or tell it that statute of limitations does not apply at all.
21 See, .e.g., United States v. Swan, 327 F.Supp.2d 1068, 1072 (D.Neb. 2004) (exhibit 7). As Swan notes, the 1998 Amendments to Rule 35(c) of the Federal Rules of Appellate procedure deleted the portion of the rule that said “a request for rehearing en banc does not affect the finality of the judgment or stay the issuance of the mandate.” Thus, any pre-1998 case law saying that a decision becomes binding when rendered rather than when the mandate is issued is no longer the law. Instead, as the Sixth Circuit realized in upholding the injunction granted to Biros and as the United States District Court for the Southern District of Ohio recognized in granting Carter an injunction after Cooey had been decided, Cooey cannot be applied until the mandate issues, which in Cooey, will not be until the United States Supreme Court decides the petition for a writ of certiorari.
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It also would not be proper for this Court to allow Baze’s execution before the United States Supreme Court has the opportunity to weigh in on Cooey and until Cooey becomes final by the issuance of the mandate. The federal district court for Delaware, the United States Court of Appeals for the Sixth Circuit, and, most recently, the United States Supreme Court have already intimated to that effect by enjoining executions and refusing to lift injunctions in parallel situations and cases directly governed by the Sixth Circuit’s decision in Cooey.
A similar situation arose in Delaware when the state scheduled the execution of Robert Jackson for shortly before a decision would be rendered in Hill v. McDonough on whether a challenge to the chemicals and procedures used in lethal injections is cognizable in a 42 U.S.C. §1983 suit. Recognizing that Hill could have a dispositive effect on Jackson’s claims and that it would be a waste of money and judicial resources to litigate the case when the Supreme Court would be rendering a decision in Hill within a matter of three months that could require dismissal of the action or require the court to revisit some of its rulings, the United States District Court granted a preliminary injunction barring Jackson’s execution pending disposition of Hill.22 While Jackson is strong authority for granting a preliminary injunction, the issue of the applicability of Cooey is stronger grounds to enjoin Baze’s execution pending a decision on whether certiorari will be granted in Cooey.
Unlike the issue of whether a lethal injection suit is cognizable under 42 U.S.C. §1983, for which there was circuit precedent before Hill, the issue decided in Cooey is an issue of first impression. Thus, Cooey neither overrules nor reaffirms binding precedent that this Court must apply; instead, it could create new law that would have to be applied when it becomes final. Realizing this and that the difficult issue involving the statute of limitations could be decided
22 Jackson v. Taylor, 2006 WL 1237044 (D.Del. May 9, 2006) (exhibit 4). The United States Court of Appeals for the Sixth Circuit also stayed briefing in Cooey pending the United States Supreme Court’s disposition of Hill. See, Exhibit 5 (Docket sheet in Cooey v. Strickland, No. 05-4057).
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differently by the en banc court of the Sixth Circuit or the United States Supreme Court, the Sixth Circuit stayed the mandate in Cooey and then refused to vacate a preliminary injunction granted to Kenneth Biros. Although that injunction was granted before Cooey was decided, the Sixth Circuit upheld it after Cooey and ruled that it should remain in effect until the mandate issues in Cooey after rehearing and certiorari.23 The United States Supreme Court agreed, also refusing to vacate Biros’ injunction despite Cooey.24 Guided by the Sixth Circuit’s action in regard to Biros, the United States District Court for the Southern District of Ohio enjoined Clarence Carter’s execution.25 Both of those injunctions remained in effect after the rehearing en banc was denied and will continue to do so until the Supreme Court of the United States decides whether to grant certiorari in Cooey.
This Court should heed the guidance of the courts that have come before it and pay respect to the higher federal courts by recognizing the principle it laid out - - inmates who have filed lethal injection litigation claims more than days before a scheduled execution are entitled to a preliminary injunction pending the issuance of the mandate in Cooey, which will be rendered when the Supreme Court decides the case - - possibly as early as a month after Baze is scheduled to be executed. Abiding by the edict of the Sixth Circuit and the Supreme Court, this Court should do as was done in Biros and Carter - - grant Baze a preliminary injunction barring his execution until the Supreme Court decides Cooey.
The United States Supreme Court has ruled that a stay or preliminary injunction is particularly appropriate when a ruling in another proceeding will likely “narrow the issues in the
23 Exhibit 1 (Sixth Circuit order denying motion to vacate Biros’ preliminary injunction). 24 Exhibit 2 (United States Supreme Court order denying motion to vacate preliminary injunction granted to Biros). 25 Exhibit 3 (Southern District of Ohio order granting Carter a preliminary injunction).
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pending case.”26 This practical consideration is most compelling when the other proceeding is before a court whose decision will bind the enjoining court.27 This is the exact situation here.
If the Supreme Court of the United States decides that the statute of limitations is
inapplicable, this Court will not need to address the statute of limitations defense. If the United
States Supreme Court addresses the issue and modifies or changes Cooey, this Court will not
have rendered a decision that will have to be revisited. If the United States Supreme Court
affirms Cooey or does not grant certiorari, this Court will know that the statute of limitations
applies generally and then will only have to determine its application to this case. One of these
scenarios will take place within a month of Baze’s scheduled execution, and each of them will
narrow the statute of limitations issue presently before this Court. And, once Cooey becomes
final upon the United States Supreme Court rendering a decision, it will be binding on this Court.
Thus, under the United States Supreme Court’s framework, its actions in Biros, and the Sixth
Circuit’s actions in Biros and Carter, a preliminary injunction barring Baze’s execution until
Cooey becomes final is not only appropriate but should be granted.
A preliminary injunction is also warranted here by considerations of “wise judicial administration” and “comprehensive disposition of litigation.”28 It makes no sense for this Court
26 Landis v. North Am. Co., 299 US. 248, 253 (1936). 27 See, e.g., Florida Farmworkers Council, Inc. v. Donovan, 672 F.2d 893 (D.C. Cir. 1981) (ordering the district court to stay action on appellant’s claim pending decision by the Eleventh Circuit “because action by the Eleventh Circuit may be dispositive of [appellant’s claims])”; Marshel v. AFW Fabric Corp., 552 F.2d 471 (2d Cir. 1977) (per curiam) (staying district court proceedings pending decision on determinative question of law by the United States Supreme Court); Wing Shing Prods. (BVI) Ltd. V. Simatelex Mfg. Co., 2005 WL 912184, *2-3 (staying action to wait “potentially outcome determinative” decision by the Federal Circuit in a related appeal) (exhibit 8); In re: Literary Works in Elect. Databases Copyright Litig., 2001 WL 204212, *2-3 (S.D.N.Y.) (staying district court action pending United States Supreme Court decision “likely to have a significant, if not dispositive, impact on the cases here”) (exhibit 9); Marbury v. Colonial Mortgage Co., 2001 WL 135719, *9 (M.D.Ala.) (staying district court action pending decision by Eleventh Circuit in another case presenting a similar issue of law) (exhibit 10); KK Motors, Inc. v. Brunswick Corp., 1999 WL 246808, *2 (D. Minn.) (noting that if Eighth Circuit were to vacate, or reverse, decision of another district court within that circuit involving same legal issues, then Eighth Circuit’s “formulation of the law to be applied in this Circuit, which will inevitably apply to this case, will set the agenda for discovery, Motion practice and the Trial itself. Such a potentiality properly cautions restraint.”) (exhibit 11). 28 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
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to embark on applying the complex decision in Cooey to the even more complex procedure posture of this case when within a month of Baze’s scheduled execution, we could learn that Cooey is not the law. Likewise, it makes no sense for this Court to determine whether the facts of this case distinguish it from Cooey when a ruling in Cooey could change how this Court analyzes the issue. The prudent course that would save this Court’s resources, decrease the likelihood of an erroneous ruling, and avoid the possibility of this Court having to readdress the issue after Cooey becomes final, is to grant a preliminary injunction barring Baze’s execution until the mandate is issued in Cooey. Doing so will not only save this Court resources, it will also give life to the meaning of the Sixth Circuit’s and United States Supreme Court’s rulings in Biros, refusing to vacate a preliminary injunction until the Supreme Court decides Cooey and until the mandate issues. A preliminary injunction for such a short period of time will not substantially harm Defendants.
Although Baze exhausted federal habeas remedies on March 21, 2005 and only had a stay in place for a total of approximately six months since then, the Attorney General’s Office did not request an execution date until August 2007, and Defendant Fletcher did not set an execution date on Baze until August 22, 2007. Defendant Fletcher scheduled Baze’s execution despite the pendency of this case and despite the fact that Cooey’s petition for a writ of certiorari will be filed in the United States Supreme Court within a matter of days and will be decided by the end of October. Defendant Fletcher had the authority to schedule Baze’s execution for after the United States Supreme Court conferences Cooey, but he decided not to do so. By scheduling Baze’s execution despite all of this and setting the execution date for September 25 2007 (approximately a month before the United States Supreme Court will weigh in on Cooey), any
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Case: 3:06-cv-00022-KKC Doc #: 165-2 Filed: 08/26/07 Page: 12 of 13 - Page ID#: 3508 harm to Defendants from the grant of a preliminary injunction is self-inflicted harm from which it should not be allowed to benefit. That harm, if it can be called harm, is minimal. It will not prevent Baze’s execution. Instead, it will only delay Baze’s execution for a very short period of time. Considering that until this month, Defendants were in no rush to execute Baze and were seemingly willing to allow this case to be decided first, this short delay is little to no harm. In light of this, any minimal harm does not even register when compared to the prejudice that would be suffered by Baze if he is executed before the case that could be dispositive on whether Baze’s claim can proceed forward is decided. For the reasons expressed above this Court should grant Baze a preliminary injunction barring his execution on September 25, 2007.
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REQUEST FOR RELIEF For the reasons expressed above, Ralph Baze requests that this Court enjoin Defendants from executing him until the United States Supreme Court decides whether to grant certiorari in Cooey and until the mandate issues in Cooey.

RESPECTFULLY SUBMITTED,

August 26, 2007.

/s/ David M. Barron __________________________ DAVID M. BARRON JOHN ANTHONY PALOMBI Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
COUNSEL FOR RALPH BAZE

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was electronically filed with the Court by using the CM/ECF system on this 26th day of August 2007.

/s/ David M. Barron _____________________________ Counsel for Ralph Baze

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 Case: 3:06-cv-00022-KKC Doc #: 139 Filed: 03/30/07 Page: 1 of 35 - Page ID#: 2316

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at FRANKFORT
** CAPITAL CASE **
CIVIL ACTION NO. 06-CV-22-KKC
BRIAN KEITH MOORE

PLAINTIFF

VS:

MEMORANDUM OPINION AND ORDER

JOHN D. REES, ET AL.

DEFENDANTS

The following motions are presently before the Court:
1. Moore’s motion for a preliminary injunction barring the Defendants from scheduling or carrying out his execution [Record No. 5]
2. Moore’s motion for the Court to reconsider its prior order quashing the deposition subpoena for Kentucky Governor Ernie Fletcher [Record No. 54]
3. Moore’s motion to compel the Defendants to disclose Kentucky’s electrocution protocol [Record No. 80]
4. Moore’s motions for permission to depose Defendant execution team members [Record Nos. 81, 110]
5. Moore’s motion to compel the Defendants to gather data during their attempts to draw blood from Moore [Record No. 82]
6. Moore’s motion to compel the Defendants to provide answers to his discovery requests [Record No. 83]
These motions will be addressed in turn.
I. Preliminary Injunctive Relief
On the same day he filed his complaint in the present action, Moore filed a motion seeking
a temporary restraining order and a preliminary injunction to prevent the Defendants from either
scheduling or carrying out his execution. [Record No. 5]. In his motion, Moore alleged that

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“[d]efendants have signaled their intent to execute Moore before he can finish litigating his federal habeas corpus proceedings, let alone this challenge to Kentucky’s lethal injection chemicals and procedures. Unless the Supreme Court of the United States or this Court intervenes, Defendants could execute Moore in a few months or less.” Motion at ¶5. In essence, Moore seeks a preliminary injunction that would prevent his execution until this Court can reach the merits of his claims in this action. Motion at ¶9. Moore argues that the evidence attached to his motion indicates a strong likelihood that he will prevail on his Eighth Amendment claims, and that he will suffer irreparable harm if a stay is not granted because his execution will render his meritorious claims moot.
In their Response [Record No. 88], Defendants counter that Moore’s likelihood of success on the merits of his claim is minimal because, after substantial pretrial discovery and trial, Kentucky state courts have upheld Kentucky’s lethal injection protocol against a substantially-identical Eighth Amendment challenge by other, similarly situated death row inmates. The Court is further aware that the trial court’s determination has recently been upheld by the Kentucky Supreme Court. Baze v. Rees, Ky., 2006 WL 3386544 (2006). Defendants also cite Nelson v. Campbell, 541 U.S. 637 (2004), for the proposition that, under these circumstances, the fact of Plaintiffs’ imminent death does not constitute irreparable harm. Defendants contend that the public and the state have a substantial public interest in having their lawful judgments carried out, and that the public interest counsels against granting a stay.
In reply Moore alleges, among other things, that he did not unduly delay in bringing this suit because Kentucky did not disclose the names and quantities of the chemicals used in its lethal injection protocol until August 2004, and even then released no further information regarding the lethal injection protocol [Record No. 89].
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In most instances, courts perform a traditional four-factor analysis to determine whether to grant injunctive relief:
1. whether the movant has demonstrated a strong likelihood of success on the merits; 2. whether the movant would suffer irreparable injury without the injunction; 3. whether the injunction would cause substantial harm to others; and 4. whether the injunction would serve the public interest. Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2006); McPherson v. Michigan High School Athletic Ass’n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) (en banc). Granting injunctive relief may be particularly appropriate, where necessary, to preserve the court’s ability to render a meaningful decision on the merits. United Food & Comm. Workers’ Union, Local 1099 v. Southwest Ohio Reg. Trans. Auth., 163 F.3d 341, 348 (6th Cir. 1998). However the Supreme Court has discouraged district courts from granting relief where a death row inmate brings a last-minute claim to forestall execution: Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State’s significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay. Nelson, 541 U.S. at 649-50. The Court must first assess the strength of Moore’s case on a preliminary basis.1 In his motion, Moore asserts that: 1. Because he has compromised peripheral veins, the Defendants’ means of
1 The Court’s factual and legal conclusions here are based upon the limited nature of the record before it, and are accordingly not binding upon the parties in subsequent proceedings or upon a full trial on the merits. United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir. 2004).
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inserting an I.V. line creates an unnecessary risk of pain and suffering;
2. the use of pancurium bromide as the second chemical violates evolving standards of decency;
3. the failure to administer an analgesic creates an unnecessary risk of pain and suffering;
4. each of the chemicals used in the protocol creates an unnecessary risk of pain and suffering;
5. the manner in which the chemicals are injected and the inadequate training of the execution team members create an unnecessary risk of pain and suffering;
6. the failure to monitor Moore for consciousness after the first and second chemicals have been injected creates an unnecessary risk of pain and suffering;
7. the failure to maintain proper life-saving equipment in the event a stay of execution is granted after the first and second chemicals have been injected creates an unnecessary risk of pain and suffering;
8. the Defendants’ failure to correct these deficiencies after becoming aware of them constitutes deliberate indifference to Moore’s serious medical needs; and
9. Moore’s physical condition increases the risk that each of the foregoing will result in unnecessary pain and suffering.
Motion at pgs. 2-3. In support of these claims, Moore has attached 11 exhibits to his motion, which
include copies of various orders and memoranda entered in other cases asserting similar method-of-
execution claims in different courts. Moore’s complaint is not verified and he has not offered any
authenticated documents or sworn statements from medical experts as to his medical condition, the
lethal injection protocol or the alleged effects of the chemicals used in the protocol. In sum, he has
offered no evidence in support of his factual allegations. The Court therefore has no evidentiary
record upon which it may permissibly conclude that Moore has demonstrated any likelihood of
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success on the merits, let alone a “strong” or “substantial” one. Even assuming the truth of Moore’s allegations and the medical testimony referenced in
opinions of other courts, such evidence must be balanced against that offered by the Defendants. Here, Defendants offer little factual evidence specific to Moores’ claims. Rather, Defendants note that the Kentucky Supreme Court has upheld the Kentucky Department of Corrections’ (“KDOC”)’s lethal injection protocol against an Eighth Amendment challenge. Baze v. Rees, 2006 WL 3386544 (2006). Defendants further note that despite a number of challenges, the strong majority of courts have upheld the constitutionality of lethal injection procedures that are substantially identical to Kentucky’s. See cases cited at Defendants’ Response at pg.3, n.1.
While neither the Supreme Court nor the Sixth Circuit has directly addressed the constitutionality of death by lethal injection, the Ninth Circuit has recently concluded that death by lethal injection is constitutional. Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004) (noting that 37 of the 38 death penalty states use lethal injection). As one federal court in California recently observed:
In most if not all of the legal challenges to lethal injection, condemned inmates have suggested various errors that could occur during the administration of sodium thiopental, thereby rendering the patient conscious when the pancurium bromide and potassium chloride are administered. However, ‘the risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review’, and the courts that have considered the issue to date have found that the likelihood of such an error occurring is so remote as to be nonexistent. Morales v. Hickman, 415 F.Supp.2d 1037, 1044 (N.D.Cal. 2006) (internal quotations marks removed) (quoting Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994)). The Texas Court of Criminal Appeals similarly noted: Applicant’s claim, simply put, is that the lethal injection chemicals used by TDCJ could cause a painful death. Applicant offers neither evidence--much less scientific
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or medical data, peer-reviewed journal articles, expert affidavits, or controlled scientific studies--nor law to support this scientifically-based medical claim. But numerous courts across this nation have rejected claims similar to applicant’s--some after extensive evidentiary hearings, others based upon the face of the pleading. Ex Parte O’Brien, No. 51-264-03 (Tex.App. May 17, 2006) (concurring statement of Cochran, J.) (citing Abdur’Rahman v. Bredesen, Tenn., 181 S.W.3d 292 (2005); Reid v. Johnson, 333 F.Supp.2d 543 (E.D.Va. 2004); Sims v. State, Fla., 754 So.2d 657 (2000); State v. Webb, Conn., 252 Conn. 128 (2000); State v. Deputy, Del.Super., 644 A.2d 411 (1994); Bieghler v. State, Ind., 839 N.E.2d 691 (2005); Boyd v. Beck, 404 F.Supp.2d 879 (E.D.N.C. 2005); LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998); Woolls v. McCotter, 798 F.2d 695 (5th Cir. 1986); Hill v. Lockhart, 791 F.Supp. 1388 (E.D.Ark. 1992); Cooper v. Rimmer, 358 F.3d 659 (9th Cir. 2004)). Thus, in assessing Moores’ likelihood of success on the merits, the facts and legal precedent tends to be in Defendants’ favor. In evaluating whether the movant will suffer irreparable harm absent relief, a court may consider: (1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided. Michigan Coalition of Radioactive Materials Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). Moore asserts that he will suffer irreparable harm if a stay is not granted because the Defendants are likely to carry out his execution before this case may be decided on its merits. Viewed in isolation, the risk articulated by Moore would plainly constitute irreparable harm. However, courts have routinely rejected claims of irreparable harm where the harm will not be the result of the absence of a stay, but rather of the movant’s own conduct. Wedgewood Village Pharmacy, Inc. v. Ashcroft, 293 F.Supp.2d 462, 464 (D.N.J. 2003). It is this general principle which prompted the Supreme Court in Nelson to determine that a stay is not appropriate when the inmate has unnecessarily delayed in bringing his claim. Moore’s conviction became final in 1990. Although Kentucky did not adopt lethal injection as the
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presumptive method of execution until 1998, Moore concedes that general information regarding the protocol was released as early as 2004. It is particularly noteworthy that Moore did not join fellow death row inmates Ralph Baze and Claude Bowling in raising a nearly identical claim in the Kentucky state courts in 2004. Moore offers no explanation for his decision. However, his failure to raise his claim is unlikely as his counsel in this litigation also represented the inmates in the Baze case.
The Court therefore must conclude that Moore’s delay in bringing this suit is unreasonable and that the Nelson presumption against granting injunctive relief applies in this case. Further, the Court finds that the alleged irreparable harm is not likely to occur. Nearly a year has passed since Moore first alleged that a death warrant would issue shortly, and as of this date, none has issued. This Court has entered an order requiring the parties to notify it immediately if a death warrant is issued. Further, Moore has successfully sought an order from another court requiring DNA testing of certain evidence relevant to his underlying conviction, and hence the likelihood that a death warrant will issue before that case can be decided on the merits is highly unlikely. For the foregoing reasons, the Court concludes that the alleged irreparable harm is unlikely to occur.
The third prong, potential for substantial harm to third parties, has little if any bearing here. The public, however, has a substantial interest in the outcome of this case. Pell v. Procunier, 417 U.S. 817, 830 n.7 (1974). On the one hand, “[e]quity must take into consideration the State’s strong interest in proceeding with its judgment and [plaintiff’s] obvious attempt at manipulation.” Gomez v. United States District Court for the Northern Dist. of California, 503 U.S. 653, 654 (1992) (per curium). Balanced against the need to avoid unnecessary or abusive delays is society’s interest in ensuring that the execution of one of its own citizens is carried out in full accord with this nation’s
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constitutional principles. But no litigant should be allowed to trumpet adherence to the latter principle as a clever device to cripple the former.2
Moore’s conviction became final in 1990, but nearly twenty years later his death sentence has yet to be carried out while he has pursued various collateral attacks on his conviction. The Supreme Court’s admonitions in both Nelson and Hill counsel against granting a stay of execution as a matter of course. In light of the foregoing factors and the absence of any apparent exigency compelling a stay at this juncture, the public interest plainly counsels against granting injunctive relief. Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983) (“Each delay, for its span, is a commutation of a death sentence to one of imprisonment.”).
In addition, the same arguments pressed by Moore have been presented to numerous other courts. Many of those courts have rejected these arguments and denied injunctive relief; stays entered by courts that have accepted these arguments have been vacated shortly thereafter. See Cooey v. Taft, 04-1156-GLF, Southern District of Ohio [Record Nos. 45 (granting stay), 92 (granting stay), 123 (stay vacated by Sixth Circuit), 124 (denying stay), 137 (denying stay)]; Oken v. Sizer, 321 F.Supp.2d 658 (D.Md. 2004) (granting stay on June 14, 2004), reversed, Sizer v. Oken, 542 U.S. 916 (2004) (stay vacated June 16, 2004); Alley v. Little, 2006 WL 1454740 (M.D.Tenn. 2006) (granting stay on May 11, 2006), reversed, Alley v. Little, 2006 WL 1313365 (6th Cir. 2006) (vacating stay on May 12, 2006, noting that Supreme Court did not exercise its authority to enter a nationwide stay of executions pending its decision in Hill); Evans v. Saar, 412 F.Supp.2d 519 (D.Md. 2006) (denying method of execution claim by death row inmate with compromised peripheral veins). See also White v. Johnson, 429 F.3d 572, 573-74 (5th Cir. 2005) (denying stay), petition for stay of execution denied
2
Alexander Bickel best described the tension between these two irreducible values in The Least Dangerous Branch (1962) when he stated, “No good society can be unprincipled; and no viable society can be principle-ridden.”
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sub nom., White v. Livingston, 126 S.Ct. 601 (2005); Cooper v. Rimmer, 379 F.3d 1029, 1031-33 (9th Cir.2004) (affirming denial of stay); Harris v. Johnson, 376 F.3d 414, 416-18 (5th Cir. 2004) (denying stay); Rutherford v. Crosby, 438 F.3d 1087, 1092 (11th Cir.) (“The district court was fully justified in applying the Gomez/Nelson equitable principles to bar Rutherford’s request for an injunction against his execution by lethal injection.”), vacated on other grounds, Rutherford v. McDonough, 126 S.Ct. 2915, aff’d on remand, Rutherford v. McDonough, 466 F.3d 970, 975 (11th Cir. 2006) (a stay should be denied where the “[plaintiff is] the architect of the very trap from which he now seeks relief.”).
Accordingly, Moore’s motion for a preliminary injunction will be denied. II. Deposition of Governor Ernie Fletcher
Moore has filed a motion asking the Court to reconsider its prior order quashing a subpoena to depose Kentucky Governor Ernie Fletcher, or in the alternative, to permit a deposition upon written questions [Record No. 54]. In his complaint, Moore alleges that “[i]f the I.V. insertion team is unable to insert the I.V.’s [sic] after 60 minutes, Defendant Rees and Defendant Simpson will ask Defendant Fletcher to call off the execution and reschedule it.” Complaint at ¶82. In his motion, Moore explains that he seeks to question the Governor regarding his possible actions in the event that the execution team is unable to locate a suitable vein. According to Moore, if the execution team is unable to insert an I.V. within 60 minutes, the protocol requires that the Governor be contacted with a request that the execution be postponed. Moore seeks information on “what Defendant Fletcher will do under this situation, what procedures he will employ, by what means he (or his designee) will be available during the execution, how he will make that decision, who he will consult with, whether he will consult with counsel for the death-sentenced inmate, and what
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information he will consider in making this decision.” Motion at 4. Moore’s motion will be denied. The Governor’s response to a request to postpone the
execution has no bearing on the question of whether the execution protocol is unconstitutional. If the risk of unnecessary pain is an unacceptable risk inherent in the lethal injection protocol, that risk will exist regardless of whether the execution is postponed.
Moore contends that Governor Fletcher is a doctor, that “[p]resumably his medical knowledge will allow him to advise the I.V. team on how to insert an I.V. if they are unable to do it on their own within 60 minutes.” Motion at pg.3, n.5. This argument is flawed.
First, Moore challenges the implementation of KDOC’s execution protocol. He does not challenge any alleged variation from that protocol that may occur during his execution. In other words, KDOC’s protocol contemplates that the execution team will contact Governor Fletcher in the event a suitable vein cannot be located within 60 minutes for the sole purpose of rescheduling the execution date; it does not contemplate that the Governor will actively offer medical advice to the execution team on how to accomplish venous access.
Second, Kentucky law directly prohibits a doctor from taking part in an execution: “No physician shall be involved in the conduct of an execution except to certify cause of death provided that the condemned is declared dead by another person.” KRS 431.220(3). Further, any doctor licensed in Kentucky risks loss or suspension of his or her medical license if any of the acts identified in KRS 311.595 are committed, including “dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public or any member thereof.” KRS 311.595(9).3 That phrase is further defined to include, among other things, “... any departure from,
3
The Court need not address whether a Governor’s actions undertaken in his capacity as Governor, rather than in his capacity as a physician, are subject to this restriction.
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or failure to conform to the principles of medical ethics of the American Medical Association or the code of ethics of the American Osteopathic Association.” KRS 311.597(4). Article 2.06 of the American Medical Association’s Code of Ethics provides that “A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.” While the advisory notes to AMA Ethics Rule 2.06 clearly address the entire range of proscribed conduct, selecting injection sites and advising lethal injection personnel are expressly identified as prohibited acts. Moore has offered no evidence into the record which even supports, the notion that the Governor would act in a manner contrary to Kentucky law in performing his limited role of postponing an execution.
Finally, the Governor’s authority to schedule an execution date in the first instance is one expressly derived from the Kentucky Constitution, and thus “is strictly an execution function.” Bowling v. Commonwealth, Ky., 926 S.W.2d 667, 669 (1996). The Governor’s authority to reschedule an execution, whether before or after he has been asked to do so by the execution team, likewise necessarily derives from this constitutional grant of authority, not from the execution protocol. His deliberative process in reaching that decision is therefore squarely encompassed within the executive privilege and is generally guarded from disclosure. In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). Of course, this privilege may be overcome upon a sufficient showing of need, determined by balancing a variety of factors, including the relevance of the evidence, the availability of other evidence, the seriousness of the litigation, the role of the government, and the possibility that compelled disclosure will chill frank communications between government employees in the future. In re Franklin Nat’l Bank Securities Litig., 478 F.Supp. 577, 583 (E.D.N.Y. 1979). Consideration of these factors, particularly the lack of apparent relevance, the absence of an allegation of official
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or government misconduct, and the self-evident chilling effect that compelling disclosure would have, necessitate the conclusion that Moore has failed to demonstrate need sufficient to justify overriding the execution privilege in this case. Moore’s motion for reconsideration will therefore be denied. III. Compelling Disclosure of Kentucky’s Electrocution Protocol
A. Defendants’ request for more time to respond. Having failed to file a timely response to Moore’s motion to compel their disclosure of KDOC’s protocol for carrying out a death sentence by electrocution [Record No. 80], Defendants have moved for permission to file their brief out of time. [Record No. 85]. Defendants indicate that they were confused as to the due date for their response because of their counsel’s significant caseload and because Moore filed three separate discovery motions at the same time. In response, Moore alleges that this is not the first time the Defendants have failed to file a timely response, and assert that the rules of civil procedure must be enforced to be effective [Record No. 93]. Defendants reply that their tardiness was an honest mistake and not the product of contempt for the civil rules, and indicate they have exceeded the requirements of the civil rules in an effort to accommodate Moore’s discovery requests [Record No. 96]. Strict compliance with some of the civil rules may be excused in certain circumstances, and may be particularly appropriate where matters of public concern are at issue. Wilson v. Winstead, 84 F.R.D. 218 (E.D.Tenn. 1979). Of course, a pattern of repeated failures to satisfy the requirements of the civil rules may also impede the orderly process of litigation, and therefore sanctions may be required to ensure due respect is given to the parties, the court, and the public interest. The Court finds that sanctions are not appropriate here. However, situations like this can be avoided by filing
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a motion to extend time under Rule 6(b), preferably before the deadline looms near. Defendants’ motion [Record No. 85] will be granted, and the Clerk of the Court will be directed to file the tendered response into the record.
B. Moore’ request for KDOC’s electrocution protocol. Moore asks the Court to compel disclosure of KDOC’s execution protocol for death by electrocution [Record No. 80]. Moore asserts that the electrocution protocol is relevant to his facial challenge to electrocution as a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Complaint, ¶545 (“Execution by electrocution violates the Eighth Amendment of the United States Constitution.”); ¶482; Motion at pg. 3 (“... the risk of unnecessary pain and suffering inherent in electrocution violates the evolving standards of decency test of the Eighth Amendment.”). Having reviewed Moore’s complaint and the applicable law, the Court concludes that the protocol need not be disclosed to Moore because the claim to which it would be relevant, Moore’s facial challenge to electrocution as cruel and unusual punishment in violation of the Eighth Amendment, must be dismissed under established Sixth Circuit precedent as the “functional equivalent” of a second or successive habeas petition over which this Court lacks subject matter jurisdiction.4 Prior to the Supreme Court’s decision in Nelson, the Sixth Circuit and most circuit courts of appeal treated all method-of-execution challenges filed under § 1983 as de facto second or successive habeas petitions. See, e.g., In re Williams, 359 F.3d 811 (6th Cir. 2004); In re Sapp, 118
4 Moore is proceeding in forma pauperis in this action pursuant to 28 U.S.C. §1915, and seeks relief against a governmental agency and/or its officers. Accordingly, federal law requires the Court to dismiss a claim at any time if it determines that the claim is frivolous or fails to state a claim. 28 U.S.C. §1915(e)(2); 28 U.S.C. §1915A.
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F.3d 460, 462 (6th Cir. 1997) (“this challenge to the manner of execution is a challenge seeking to interfere with the sentence itself, and thus, is properly construed as a petition for habeas corpus.”). In Nelson v. Campbell, 541 U.S. 637, 644-51 (2004), however, the Supreme Court held that a death row inmate could utilize § 1983 to assert a constitutional challenge to the “cut-down” procedure to be used to access the condemned’s compromised veins during his lethal injection. Nelson, 541 U.S. at 644 (“A suit seeking to enjoin a particular means of effectuating a sentence of death does not directly call into question the ‘fact’ or ‘validity’ of the sentence itself ... ”). Two years later, in Hill v. McDonough, 126 S.Ct. 2096, 2102 (2006), the Supreme Court applied Nelson’s rule to permit a § 1983 challenge to the three-drug sequence used during Florida’s lethal injection procedure.
In each decision, however, the Supreme Court was careful to distinguish between challenges to a particular method of carrying out a death sentence, i.e., the manner in which veins are accessed to inject the lethal chemicals, and challenges to a category of methods for carrying out a death sentence, i.e., lethal injection generally. While Nelson and Hill permit the former type of narrow “as-applied” challenges to be brought under § 1983, the Court expressly left open the question whether the latter category of broad “facial” challenges are cognizable under §1983 or only through habeas corpus. Nelson, 541 U.S. at 644 (“[W]here the legislature has established lethal injection as the preferred method of execution, a constitutional challenge seeking to permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence itself ... We need not reach here the difficult question of how to categorize method-of-execution claims generally.”)
Because the Supreme Court’s decisions in Nelson and Hill have not altered the law in this area, established Sixth Circuit precedent remains controlling. The Sixth Circuit long ago held that a general challenge to the method of execution cannot be brought under § 1983, and such a claim
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must be dismissed for lack of subject matter jurisdiction. In re Williams, 359 F.3d 811, 812-13 (6th Cir.) (en banc), cert. denied, 540 U.S. 1206 (2004); In re Sapp, 118 F.3d 460, 463-64 (6th Cir. 1997) (“We follow the clear holding of Gomez, as endorsed by the Eleventh Circuit, that a challenge to a method of execution, whatever denominated (Rule 60(b), see McQueen, 99 F.3d at 1335 (collecting cases), § 1983, or otherwise) is to be treated as a habeas petition.”). The Sixth Circuit has recently indicated that this rule remains the law even after Hill. Cooey v. Strickland, 2007 WL 623482, *6 (6th Cir. 2007) (In Hill, “the Court concluded that the plaintiff’s action was properly brought under §1983 because it did not present a general challenge to his execution by lethal injection, but rather limited the challenge to the specific protocol currently used by defendants.”) (emphasis added).
Finally, even if Moore’s claims would support a § 1983 action, Sixth Circuit precedent would require dismissal. Buell v. Mitchell, 274 F.3d 337, 370 (6th Cir. 2001) (“Courts have consistently upheld the constitutionality of the death penalty in general, and by electrocution in particular ... Electrocution has yet to be found cruel and unusual punishment by any American court. We decline to be the first.”); Greer v. Mitchell, 264 F.3d 663, 691 (6th Cir. 2001); In re Sapp, 118 F.3d 460, 464 (6th Cir. 1997) (rejecting a challenge to the constitutionality of electrocution as failing to present a likelihood of success on the merits). Nor is there any reason to be believe that in the six years since the Sixth Circuit’s decisions in Buell and Greer the polity has undergone any sea change in its “evolving standards of decency” with respect to electrocution. In re Sapp, 118 F.3d at 464 (“Electrocution has never been found to be cruel and unusual punishment by any American court. The very practice of electrocution has been upheld by other courts within the past year, and there is no argument even plausible that there are differences in the level of ‘evolving decency’ among the
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different circuits or states of the union, or over the last very few years.”).5 Accordingly, Moore’s
motion to compel disclosure of KDOC’s electrocution protocol must be denied and his facial
challenge to the constitutionality of electrocution must be dismissed for lack of subject matter
jurisdiction.
IV. Depositions of Executioner Team Members
In anticipation of objections from the Defendants, Moore has requested leave to depose
medical personnel at the Kentucky State Penitentiary (“KSP”). [Record No. 81, 110]. These
individuals include:
1. Terri Jones, a nurse who has attempted to draw blood from Moore in the past;
2. Brian Bauer, a nurse who has attempted to draw blood from Moore in the past;
3. Dr. Steve Hiland, a physician who has attempted to draw blood from Moore in the past or was present during such attempts;
4. any other nurse at KSP who has attempted to draw blood from Moore in the past;
5. Warden Thomas Simpson, who has authority to make decisions regarding the manner in which a death sentence is carried out;
6. James M. Schomig, Deputy Commissioners of Adult Institutions, who is delegated responsibilities from KDOC’s Commissioner;
7. all members of the execution team, who are collectively responsible for
5
In addition, Moore’s facial challenge to electrocution is time-barred. Because § 1983 does not provide its own statute of limitations, federal courts “borrow” the most analogous statute of limitations from the state where the events giving rise to the claim occurred. Wilson v. Garcia, 471 U.S. 261, 276-80 (1985). Kentucky law accordingly supplies the applicable statute. Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996). In Kentucky, the applicable statute to be borrowed for civil rights claims is the one-year statute of limitations for residual tort claims found in KRS 413.140(1)(a). Collard v. Kentucky Board of Nursing, 896 F.2d 179, 182 (6th Cir. 1990); University of Kentucky Bd. of Trustees v. Hayse, Ky., 782 S.W.2d 609, 613 (1989). Under Cooey v. Strickland, 2007 W L 623482, *6 (6th Cir. March 2, 2007), a claim asserting a facial challenge to a method of execution accrues upon the conclusion of direct review of criminal conviction. The Supreme Court denied Moore’s petition for a writ of certiorari on direct review in 1990. Because more than one year has passed since Moore’s claim accrued, it is time-barred.
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carrying out the death sentence; and
8. Guard Blackburn, who witnessed an attempt to draw Moore’s blood in November 2006.
In their Responses [Record Nos. 91, 122], Defendants assert that:
1. Dr. Hiland has no direct participation in lethal injections, and Moore’s counsel learned this fact in the Baze litigation;
2. deposing KSP nurses would interfere with their performance of their duties;
3. Warden Simpson has no knowledge regarding the development of the execution protocol, but does supervise the training of the execution team members and will preside over Moore’s execution should it occur; and
4. information regarding the execution team members was provided to Moore’s counsel in the Baze litigation two years ago, and depositions of the team members would threaten their safety.6
In his Replies [Record Nos. 95, 123], Moore disputes the assertion that Dr. Hiland has not drawn
blood or observed others doing so; asserts that mere inconvenience to staff is not a sufficient basis
to preclude discovery entirely; and asserts that security concerns can be adequately addressed through
protective measures undertaken in the discovery process.
With respect to Dr. Hiland, Moore disputes Defendants’ assertion that he has no role in the
lethal injection process. Accordingly, Moore is entitled to discovery on this point. While the warden
may not have created the execution protocol, it appears that he will play a prominent role in its
6 Defendants also contend that Moore’s fundamental claim in this case is that “his vein disorder prevents him from being executed under any method that requires the use of an I.V. catheter to deliver lethal chemicals to his veins.” Because KRS 431.220(1)(a) requires “[e]very death sentence [is to] be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death,” Defendants argue that Moore’s claims fall outside the scope of “as applied” claims permitted to be brought under Hill. Defendants’ Response at pgs. 5-6. Moore counters that his claims are permissible under Hill because he admits that his Eighth Amendment rights would not be violated if his veins were accessed by using the percutaneous procedure described in his complaint. Defendants’ objection based upon the nature of Moore’s claims is addressed in Section VII below.
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implementation, and his testimony thus has a readily-discernable bearing on Moore’ claims. Defendants have raised several points which merit further discussion. First, the Defendants
have a strong interest in preserving the safety, and hence anonymity, of the execution team members and those involved with the process. KSP is a maximum security prison, and any discovery in this matter must not interfere with the safety and operation of that institution. The Defendants are therefore entitled to scrupulously protect those interests, both during discovery and at any trial, in a manner that they deem most appropriate, to the extent that manner does not unduly interfere with Moore’s need to obtain discovery of relevant information. The parties are in the best position to reach an agreement on this issue. However, the Court will resolve the matter if a reasonable resolution cannot be reached by agreement.
Second, the Defendants have asserted that certain of the discovery sought by Moore is propounded for the purpose of delay or harassment in light of the discovery already provided in the Baze litigation. The record presently before the Court is not sufficient to determine whether the information is necessarily identical to that already provided or sought for the purpose of delay. Both parties are aware that the Federal Rules of Civil Procedure provide adequate mechanisms to check discovery abuses. A party who believes that a fact is not fairly open to dispute may seek an admission of that fact under Rule 36. A party who unreasonably refuses to admit that fact which is subsequently proven to be true does so at peril of paying the costs and attorneys’ fees incurred to prove that fact under Rule 36(c)(2). Similarly, deposition questions posed in bad faith or to harass may be halted under Rule 31(d)(4) and costs and sanctions charged against the offending party under Rule 37(a)(4). The Court will not hesitate to sanction any litigant who unreasonably refuses to participate or cooperate in the discovery process.
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V. Recording Attempts to Draw Moore’s Blood Moore invokes the All Writs Act, 28 U.S.C. §1651, in support of his motion to compel the
Defendants to document every attempt they make to draw blood from him [Record No. 82]. Moore alleges that Defendants used to document attempts to draw blood some years ago but have stopped doing so, and therefore there is no documentary record of more recent attempts to draw blood. Moore contends that such information would be “in aid of this court’s jurisdiction.” Moore further contends that no other, more specific statute applies to his request because the Federal Rules of Civil Procedure cannot be applied to require a party to create information for discovery that does not already exist.
Defendants respond that Moore could seek discovery of existing medical records under Federal Rule of Civil Procedure 34 and a medical examination of Moore under Rule 35 [Record No. 90]. Further, Moore may obtain information regarding these attempts to draw blood through depositions of the medical personnel who made the attempts. Moore replies that he has already obtained what medical records exist, but that no documents exist for the recent undocumented attempts at blood draws, and that a current medical examination will shed no light on what transpired at prior attempts to draw blood. He further contends that depositions are insufficient because human memory fades over time, thus degrading the quality of the evidence [Record No. 94].
The All Writs Act provides that a federal court “may issue all writs necessary or appropriate in aid of [its] jurisdiction and agreeable to the usages and principles of law.” 28 U.S.C. §1651. This grant of authority, otherwise broad in its terms, is in fact quite narrowly circumscribed to fill only those narrow interstitials where no other, more specific statute or provision applies. Penn. Dep’t of Corrections v. U.S. Marshalls’ Service, 474 U.S. 34, 41-43 (1985) (“Where a statute specifically
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addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.”); United States v. Perry, 360 F.3d 519, 533 (6th Cir. 2004); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1229 (11th Cir. 2005) (“Our decisions make clear that where relief sought is in essence a preliminary injunction, the All Writs Act is not available because other, adequate remedies at law exist, namely Fed.R.Civ.P. 65.”). In particular, the All Writs Act provides no basis to avoid the application of or contradict the requirements of the Federal Rules of Civil Procedure where they apply. The question is not whether the more specific provision will grant the relief sought by the applicant, but rather merely whether it encompasses the subject matter of the motion. Florida Medical Ass’n, Inc. v. U.S. Dept. of Health, Educ. and Welfare, 601 F.2d 199, 202 (5th Cir. 1979) (“While the All Writs Act empowers a district court to fashion extraordinary remedies when the need arises, it does not authorize a district court to promulgate an Ad hoc procedural code whenever compliance with the Rules proves inconvenient.”); see also Scardelletti v. Debarr, 265 F.3d 195, 212 (4th Cir. 2001).
Orders issued under the All Writs Act must aid the court in exercising its jurisdiction. Jones v. Lilly, 37 F.3d 964 (3rd Cir. 1994). A writ is issued “in aid of the court’s jurisdiction” when it is designed to give practical effect to a decree or injunction already entered by the court. Hodges v. Bell, 170 Fed.Appx. 389, 393 (6th Cir. 2006) (unpublished disposition) (All Writs Act does not provide authority to require prison officials to monitor prisoner’s living conditions even where relevant to claim presented to court); Wesch v. Folsom, 6 F.3d 1465 (11th Cir. 1993). It is not a grant of plenary power to the federal courts and does not authorize a court to order a party to aid another party in conducting a more effective investigation when other bases for relief are available. Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283 (9th Cir. 1979). While a precise articulation of
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when a writ is “in aid of the court’s jurisdiction” may be elusive, Jones, 37 F.3d at 967, it seems clear that this requirement will be satisfied only where, in the absence of the writ, the court will be divested of jurisdiction or, at a minimum, the effectiveness of that jurisdiction rendered null by a court’s inability to pragmatically enforce its judgments and decrees.
What Moore seeks through his motion is evidence relevant to his claims, a subject matter comprehensively treated under the Federal Rules of Civil Procedure. The fact that the Rules may not permit the relief he seeks does not authorize the ad hoc creation of a remedy out of whole cloth utilizing the All Writs Act as an expedient. If Moore seeks evidence to support his claims, he must produce it himself or obtain it through ordinary discovery channels. Nor would Moore’s requested order be in aid of this Court’s “jurisdiction.” While Moore asserts that this information would be the “best evidence” of Defendants’ difficulties in drawing blood from him, nearly all civil cases proceed through discovery and trial with less-than-perfect evidence regarding the claims presented. Fading memories, lost documents, deleted e-mails, and the like routinely reduce the quality and quantity of evidence available to establish the merits of a claim, but parties and counsel alike routinely present their cases for decision without requiring the creation of new evidence that was not already in existence. Here, Moore acknowledges that KSP nurses will be able to testify regarding their prior attempts to draw blood from him, but asserts only that documentary proof would be better. This may be so, but the Federal Rules do not require the creation of the best evidence, nor does the absence of the “best evidence” inhibit this Court’s jurisdiction to decide this case on the merits. Moore’s motion will be denied.
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VI. Compelling Responses to Moore’s Discovery Requests A. Defendants’ request for more time to respond. For the same reasons previously stated, Defendants have moved for permission to file their
brief out of time. [Record No. 92] Moore has filed no opposition to the motion. Defendants’ motion will be granted in light of the strong public interest in having the issues presented in this case decided on the merits, Wilson v. Winstead, 84 F.R.D. 218 (E.D.Tenn. 1979), and the Clerk of the Court will be directed to file the tendered response [Record No. 97] into the record.
B. Moore’s motion to compel discovery. In his motion [Record No. 83], Moore states that the Defendants have refused to provide any response to his interrogatories, requests for production of documents, and requests for admission. In their Response [Record No. 97], Defendants note that Moore’s discovery requests total 101 requests for production of documents, 25 interrogatories, and 298 requests for admission. Defendants have refused discovery generally on the ground that Moore’s electrocution and lethal injection claims are not the type of claim permitted by Hill because Moore’s allegations, taken collectively and as true, allege that there is no manner in which the Defendants could constitutionally electrocute him or inject the lethal chemicals through an I.V. line as required by Kentucky statute, KRS 431.220(1)(a). The Defendants have also responded to certain individual discovery requests by stating that the information requested can be found in their Answer to the complaint or was previously disclosed to Moore’s counsel in the Baze litigation, or that the information is or should be protected from disclosure in light of security concerns or under the attorney-client privilege. Moore contends that his claims fall within the confines of those permitted by Hill, that the Defendants’ Answer and prior information disclosed in the Baze case is either insufficient or
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nonresponsive to the discovery request, and that security issues can be adequately addressed without completely depriving him of the requested information.
With respect to requests for discovery of information relevant to his electrocution claim, Moore’s motion to compel will be denied because this claim will be dismissed for lack of subject matter jurisdiction as described in Section III above.
With respect to Moore’s lethal injection claims, the Court will address each of the Defendants’ objections and responses to Moore’s discovery requests. Because the parties’ submissions make clear that well over one hundred discovery requests are in dispute, the Court will address the parties’ arguments categorically rather than individually. Before doing so, however, the Court notes that some of the cases cited in the briefs, in particular Johnstone v. Cronlund, 25 F.R.D. 42 (E.D.Pa. 1960), and Diederich v. Department of the Army, 132 F.R.D. 614 (S.D.N.Y. 1990), provide the parties with clear and cogent direction on how discovery is to be conducted in federal court, and highlight some of the shortcomings of certain positions asserted by the parties in their filings. The cases therefore should afford the parties useful counsel on the best manner to complete discovery without further intervention of the Court.
There are only five types of response that can be made to a request for admission: (1) an unqualified admission; (2) an unqualified denial; (3) a statement that the respondent has conducted a reasonable investigation into the substance of the request but that the information known or readily available to him or her is nonetheless insufficient to enable him or her to admit or deny the request; (4) a qualified admission which explains the need for and substance of the qualification or explanation; and (5) an objection to the request. It is further worth noting that, under Federal Rules of Civil Procedure 36 and 37, only the propriety of the fourth and fifth type of response may be
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challenged prior to trial under Rule 36(a); the appropriateness of the second and third type of response may only be assessed through a post-trial motion for expenses under Rule 37(c)(2).7
First, the Defendants responded to a substantial portion of Moore’s requests for admission by noting an objection to the request, stating that Defendants had already responded to the requested information in an identified paragraph in their Answer, or that the information had already been provided to Moore, presumably through his counsel, in the Baze litigation.
Neither of these objections can be sustained, except in one limited respect. Both objections assert, in essence, that the Defendants need not respond because the information has already been provided to Moore and is therefore within his own control. This is not a valid objection. 7-36 MOORE’S FEDERAL PRACTICE Civil §36.11[c] (courts reject objections on the ground that the requested matter consists of facts within the knowledge of the requesting party); Diederich v. Department of the Army, 132 F.R.D. 614, 617 (S.D.N.Y. 1990) (“[T]he purpose of requests for admissions are to seek defendant’s agreements as to alleged fact. Whether plaintiff could obtain the information independently or whether certain facts are within plaintiff’s knowledge are irrelevant considerations.”). If the response to the request may be determined by reference to another source within the respondent’s control, it is respondent’s obligation to take the steps necessary to review that information and determine its response.
7
“The propounding party may file a motion during the pretrial period requesting that the court determine the sufficiency of the answers or objections. If the court is persuaded that an objection was not proper, it must order the opposing party to respond on the merits. If the court is persuaded that an answer does not comply with the requirements of Rule 36, it may order either that the matter is admitted, or that an amended answer be served. ... However, if the response consisted of a straightforward but clearly unjustified denial, or a statement, proper in form but ultimately wanting in substance, that the responding party cannot either admit or deny the request at that stage of the proceedings, Rule 36 leaves a propounding party effectively without a remedy. In these situations, “Rule 36 does not provide for a pretrial hearing on whether the response is warranted by the evidence thus far accumulated. Instead, Rule 37(c) is intended to provide post-trial relief in the form of a requirement that the party improperly refusing the admission pay the expenses of the other side in making the necessary proof at trial.” 7-37 MOORE’S FEDERAL PRACTICE Civil §37.70 (2006); United States v. Watchmakers of Switzerland Info. Center, Inc., 25 F.R.D. 197, 199 (S.D.N.Y. 1959).
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Defendants cite Sendi v. Prudential-Bache Securities, 100 F.R.D. 21 (D.D.C. 1983), for the proposition that discovery requests which seek information that has already been completely addressed in a prior deposition are objectionable as duplicative or oppressive. Id. at 23. However, Sendi and the cases cited therein involved discovery requests seeking information already provided through depositions already conducted in that case. Defendants seek to substantially extend this rule to information provided through depositions and discovery conducted in entirely separate litigation in Baze. No such extension is warranted or sustainable. While doubtless the process of conducting discovery in the Baze case will assist the parties with any discovery conducted here, the cases, claims, and evidence to support them are distinct.
The Defendants are correct, however, in asserting that general references to deposition testimony or documents in the Baze case are too broad and nonspecific to reasonably permit a response, and are objectionable on that basis. United States v. Watchmakers of Switzerland Info. Center, Inc., 25 F.R.D. 197, 200 (S.D.N.Y. 1959) (admission requests which incorporate other documents by reference are generally improper because “the facts admitted in an answer to a request for admissions should be ascertainable merely by examination of the request and of the answer.”).
The Defendants also objected to certain of Moore’s discovery requests on the ground that the requested information is protected by the attorney-client privilege or must not be disclosed to protect the anonymity and safety of the execution team members. Both contentions are nonspecific and unsupported by sufficient information to uphold them. Any objection to disclosure based on the attorney-client privilege must be specific, particularized, and supported by sufficient information to permit the Court to assess the applicability of the privilege. 7-36 MOORE’S FEDERAL PRACTICE Civil §36.11[c]. The Defendants’ assertion of privilege utterly fails to provide the Court with any of the
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information needed to assess its viability and must therefore be rejected. Diederich v. Department of the Army, 132 F.R.D. 614, 617 (S.D.N.Y. 1990) (“We note that no basis has been articulated by defendant in terms of specific confidential communications or attorney work product ... any objection based on work product or attorney/client or other legitimate privilege must be sufficiently particularized and properly articulated to this court, with the risk of sanctions if they are found to be of an insubstantial or frivolous nature, and we give fair warning that we shall exercise our authority in this connection in the future, given similar ethereal responses.”).
Defendants’ contention regarding the need to protect the execution team members has selfevident merit. However, their assertion that there are no measures which can be undertaken to protect the anonymity of those members is both unsupported and meritless. See also Section III(B) above. Litigation raising identical or similar claims regarding the lethal injection protocol is pending in a number of federal courts throughout the country and, to the Court’s knowledge, no state has asserted nor has any court accepted the suggestion that the unquestionably valid concern for the safety of execution team members is simultaneously so paramount and so fragile that no discovery of any kind may be had from these individuals who possess knowledge directly relevant to the claims asserted herein. Counsel for the parties can confer to reach agreement on one or more of a wide range of devices that may be employed to provide the information requested to Moore without compromising the anonymity of execution team members. See, e.g., Taylor v. Crawford, 05-4173 (W.D. Mo. June 26, 2006) (court permitting anonymous interrogatories and anonymous depositions of unknown executioners).
Finally, Defendants assert that many of Moore’s requests for admission are objectionable because their wording is not conducive to simple admission or denial. Rule 36 requires that
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“Requests for admission should be simple and direct. Parties are not required to admit or deny requests that consist of statements that are vague or ambiguous.” 7-36 MOORE’S FEDERAL PRACTICE Civil §36.10[6] (citing Henry v. Champlain Enters., 212 F.R.D. 73, 77 (N.D. N.Y. 2003) (requests must be simple and direct, not vague or ambiguous, so they can be answered with simple admit or deny, without explanation); Dubin v. E.F. Hutton, 125 F.R.D. 372, 376 (S.D. N.Y. 1989) (certain requests contained vague and ambiguous wording that did not allow defendant to fairly admit or deny them); Tulip Computers Int'l B.V. v. Dell Computer Corp., 210 F.R.D. 100, 107-108 (D. Del. 2002) (requests for admission should be phrased so that they may be admitted or denied with little or no explanation or qualification)
The Court agrees that many of Moore’s requests are objectionable on this ground. Certain of Moore’s requests merely ask the Defendants to confirm certain historical facts (e.g., “Kentucky Department of Corrections nurses and/or doctors have not been able to insert a needle into Brian Keith Moore’s veins to draw blood in a first attempt on more than one occasion.”). Many others, however, are articulated using words steeped in connotation and meaning far beyond the bare factual information in which they are couched (“Kentucky decided to use sodium thiopental, pancurium bromide, and potassium chloride because that is what other states used.”). Still others use words that may necessarily be employed to convey a range of meaning (“Kentucky Department of Corrections nurses and/or doctors have had difficulty inserting a needle into Brian Keith Moore’s veins.”).
While Rule 36 expressly contemplates that a responding party may qualify its answer to address any ambiguity introduced by the proponent’s statement to be admitted or denied, this should be the exception and not the rule, and responses need not be required where the requests are replete with such deficiencies. Diederich v. Department of the Army, 132 F.R.D. 614, 619 (S.D. N.Y.
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1990). Where the requests generally suffer from vagueness or repeatedly require the respondent to
qualify its answer, compelling responses would frustrate rather than further the goals of Rule 36:
The authorities are in agreement that Rule 36 was originally intended to relieve parties of the necessity of proving facts not really in dispute, [which] are rarely crucial to liability, although they may when taken in conjunction with other facts, be essential to proving the issue. ... [defendants contend] each statement sought to be admitted may contain an isolated bit of truth; but standing alone out of the context of the whole truth such statements convey unwarranted and unfair inferences. This objection goes to the heart of the difficulties which arise when a party attempts to use Rule 36 to cover every facet of a case. ... the purpose of the Rule is to separate the wheat from the chaff and to get down to the real issues in the case. In other words, are admissions to supplement other discovery privileges such as depositions and interrogatories or were they intended to supplant them and, more important, to give to the party making use of the Rule rights which he would not have had on the trial of the cause? If we conclude that Rule 36 is so broad that almost any question with any relevancy directly or indirectly to the issue can be asked and an answer required, the result could be as here, namely, a number of statements each of which may tell a small part of a long story; which may be out of context; which may necessitate detailed explanation in order to put them in proper perspective. Of course, the party admitting the truth of a statement of fact may qualify his answer under the specific terms of Rule 36, but it is not always possible by qualifying an admission to avoid the inferences arising from the phrasing of the statement sought to be admitted.
Johnstone v. Cronlund, 25 F.R.D. 42, 44-45 (E.D.Pa. 1960); see also Honeycutt v. First Federal
Bank, 2003 WL 1054235, *1 (W.D.Tenn. 2003) (unpublished disposition) (statements that are
vague, susceptible of more than one interpretation, combine fact, conclusion, and argument, require
lengthy explanations before they can fairly be answered, or require inference defeat the goals of Rule
36 and are properly objectionable) (collecting cases).
Where approximately one hundred requests for admission are at issue, the Court will not
investigate each individually to determine whether it suffers from these sorts of defects. Johnstone,
25 F.R.D. at 46 (“the Court should not have to sort out the questions and break them down into
categories and compel the adversary to answer one part and not answer the other. The questions
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should be so submitted that they are direct, material, relevant and concise, and, in general, capable of answer by a yes or no. ... To hold otherwise we are convinced would lead to long and interminable hearings on requests for admissions which would serve no real purpose.”). Instead, the plaintiff should be afforded the opportunity to correct the defects and, should disagreements remain, the court may analyze particular requests on an individual, rather than systemic, basis.
Defendants’ final contention, that Moore should be denied all discovery because his claims are not cognizable in a civil rights action under § 1983, is discussed below. VII. The Nature of Moore’s Claims
As noted in Section III(B) above, a broad “facial” challenge to the constitutionality of execution by lethal injection on Eighth Amendment grounds should be dismissed for lack of subject matter jurisdiction as the “functional equivalent” of a second or successive habeas petition, even though styled as a civil rights action filed under § 1983. 28 U.S.C. §2244(b)(3), (4); In re Williams, 359 F.3d 811, 812-13 (6th Cir.) (en banc), cert. denied, 540 U.S. 1206 (2004); In re Sapp, 118 F.3d 460, 463-64 (6th Cir. 1997) (“We follow the clear holding of Gomez ... that a challenge to a method of execution, whatever denominated ... is to be treated as a habeas petition.”).
Defendants have resisted all discovery in this action on the theory that Moore’s complaint constitutes just such an attack. Defendants assert that Moore’s complaint alleges, in its totality, that KDOC’s protocol and his own medical condition collectively operate to preclude his execution by any method involving the use of an I.V. catheter, something expressly required by KRS 431.220(1)(a). Defendants’ Response at pgs. 5-6.
Moore insists, however, that his claims in this proceeding challenge his execution by lethal injection only “as applied,” meaning he does not question here the constitutionality of KRS
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431.220(a)(1), which requires his death sentence to be carried out by lethal injection absent his affirmative election to select electrocution. Instead, he contends, he challenges only the means by which KDOC intends to implement that lethal injection procedure through its administrativelydeveloped protocol. By conceding that the percutaneous method to obtain venous access described in his complaint is constitutionally sound, Moore attempts to align his claims with those permitted to be brought in a § 1983 action by the Supreme Court in Nelson v. Campbell, 541 U.S. 637 (2004) (permitting 1983 challenge to “cut-down” procedure used to access compromised veins), and Hill v. McDonough, 126 S.Ct. 2096 (2006) (permitting 1983 challenge to three-drug sequence used in lethal injection protocol).
But characterizing a claim as a “method of execution” claim does not, ipso facto, mandate the conclusion that it is cognizable in a § 1983. The Supreme Court has made clear that a court must examine the exact particulars of a plaintiff’s claim to determine whether that claim would effectively bar implementation of the sentence as defined by the relevant state statutes. For example, a plaintiff might contend that his compromised veins could only be adequately accessed through use of a certain procedure, and that the procedure was sufficiently complicated that its performance by anyone other than a physician would entail sufficient risks of unnecessary suffering to violate the Eighth Amendment. Such a claim would fall outside the scope of claims permitted by Nelson in any state, including Kentucky, that prohibits physician involvement in lethal injection, because such a claim would not permit the sentence to be carried out without amending the relevant state statutes.
The first task is to determine the types of challenges which are permissible under § 1983. Acknowledging that such lethal injection challenges fall near the hazy line between the core of federal habeas jurisdiction and traditional conditions of confinement claims brought under § 1983,
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Nelson, 541 U.S. at 643, the Supreme Court began by noting that “[a] suit seeking to enjoin a
particular means of effectuating a sentence of death does not directly call into question the ‘fact’ or
‘validity’ of the sentence itself--by simply altering its method of execution, the State can go forward
with its sentence.” Id. at 644. However,
Where the legislature has established lethal injection as the preferred method of execution, a constitutional challenge seeking to permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence itself. A finding of unconstitutionality would require statutory amendment or variance, imposing significant costs on the State and the administration of its penal system.
Id. Of course, the foregoing discussion related to the viability of § 1983 jurisdiction over a broad
“facial” challenge to a method of execution such as lethal injection, an issue the Court expressly
declined to decide. Nelson, 541 U.S. at 644. However, the Court’s focus upon whether the
challenge would, if successful, require a legislative change, rather than a merely administrative
change, carried over into its discussion of “as-applied” challenges to the manner in which lethal
injection is carried out:
If as a legal matter the cut-down were a statutorily mandated part of the lethal injection protocol, or if as a factual matter petitioner were unable or unwilling to concede acceptable alternatives for gaining venous access, respondents might have a stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sentence itself. ... No Alabama statute requires use of the cut-down ..., and respondents have offered no duly-promulgated regulations to the contrary.
Id. at 645-46. Thus, in distinguishing between “as applied” and “facial” challenges, the Court must
determine whether as a practical matter, a successful claim would require the legislature to repeal or amend its statutes setting forth the sentence and/or the means of carrying it out.8 Such a result
8
In both Nelson and Hill, the Supreme Court expressly noted that the states had not promulgated a particular execution protocol through administrative regulation. Nelson, 541 U.S. at 645; Hill, 126 S.Ct. at 2099. The Court need not decide at this juncture whether a claim which, if successful, required a regulatory rather than legislative change, would nonetheless also be treated as falling within the exclusive realm of habeas jurisdiction.
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would, in the Supreme Court’s eyes, amount to a challenge to the fact of the sentence itself. See Hill v. McDonough, 126 S.Ct. 2096, 2101 (2006) (“The invasive procedure in Nelson was not mandated by law, and the inmate appeared willing to concede the existence of an acceptable alternative procedure. Absent a finding that the challenged procedure was necessary to the lethal injection, the Court concluded, injunctive relief would not prevent the State from implementing the sentence. Consequently, the suit as presented would not be deemed a challenge to the fact of the sentence itself.”).
The next task is to identify and characterize Moore’s claims. Throughout his pleadings and motions, Moore has described his claims as “challeng[ing] the chemicals and procedures used in lethal injection.” Motion at pg. 3. But Moore’s claims are both broader and more detailed than this characterization suggests. As noted in Section I above, Moore’s lethal injection claims include, at least, challenges to the adequacy of the execution team members’ training; the absence of life-saving equipment; the choice of chemicals used; the amount of chemicals used; the manner in which the chemicals are injected; the failure to monitor for consciousness before the third drug is injected; the fact that his compromised veins will present increased difficulties in obtaining venous access for the I.V. line; and the fact that the injection will cause his compromised veins to rupture, sending the lethal injection chemicals into soft tissue.
Moore’s claims thus fall into two categories: those which relate exclusively to the lethal injection protocol as adopted and administered by KDOC, and those which relate to the complications caused by his own physical condition. Of the first group, Moore appears throughout his pleadings and motions to concede, expressly or implicitly, that there are changes which can be made by KDOC to render those procedures constitutionally sound, whether they be more training,
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the acquisition of better or additional equipment, or changes to the composition, amount, or method of injection of the lethal injection chemicals.
Of the second group, Moore has acknowledged that using the percutaneous method of accessing his compromised peripheral veins would satisfy his constitutional concerns. Moore’s second allegation regarding his medical condition presents more difficulty. In his complaint, Moore alleges that :
392. A person with bad veins likely will not be able to handle the flow of the lethal injection chemicals, causing the veins and other blood vessels to blow. ... 394. Because of Plaintiff’s bad veins, even if Defendants are able to insert an I.V. into Plaintiff, the chemicals likely will not remain in his veins. 395. If the chemicals do not remain in Plaintiff’s veins, Plaintiff will suffer an excrutiatingly painful death. Complaint ¶¶392, 394-55. These allegations, taken collectively, appear to allege that there is no manner in which the Defendants can carry out Moore’s execution by lethal injection without presenting an unacceptably high risk of his suffering excruciating pain in violation of his constitutional rights. Indeed, by its nature, this claim would appear to trump all of Moore’s other claims in this regard: the Defendants could rectify all of the other defects alleged by Moore and would nonetheless still face his claim that his execution by lethal injection would necessarily cause an “excruciatingly painful death” in violation of the Eighth Amendment. Moore has not suggested any remedial action that Defendants could undertake to alter this outcome. On the limited information before it, the Court would conclude that Moore’s claims collectively foreclose his execution by lethal injection by any means, a result which would require dismissal of his complaint under 28 U.S.C. §2244(b). See Hill v. McDonough, 126 S.Ct. 2096, 2101 (2006) (“If the relief sought would foreclose execution, recharacterizing a complaint as an action for habeas corpus might
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be proper.”). However, because the parties have only addressed this issue obliquely as part of their briefing
on the discovery issues raised herein, the Court will enter a briefing schedule directing the parties to submit memoranda on the subject. As part of that briefing, the parties should further address the point at which Moore’s lethal injection claims accrued for statute of limitations purposes, and hence whether they are timely asserted utilizing the analysis recently articulated by the Sixth Circuit in Cooey v. Strickland, 2007 WL 623482 (6th Cir. March 2, 2007). Because the issues to be addressed in these briefs are potentially dispositive of the claims asserted herein, all forms of discovery will be stayed pending their resolution.
CONCLUSION Accordingly, IT IS HEREBY ORDERED as follows: 1. Moore’s motion for a preliminary injunction barring the Defendants from carrying
out his execution [Record No. 5] is DENIED. 2. Moore’s motion for the Court to reconsider its prior order quashing the deposition
subpoena for Kentucky Governor Ernie Fletcher [Record No. 54] is DENIED. 3. Defendants’ motion for an extension of time to file their response to Moore’s motion
to compel them to disclose the electrocution protocol [Record No. 85] is GRANTED. The Clerk of the Court is directed to file the tendered response into the record. 4. Moore’s motion to compel the Defendants to disclose Kentucky’s electrocution protocol [Record No. 80] is DENIED. 5. Moore’s motions for permission to depose Defendant execution team members [Record Nos. 81, 110] are GRANTED. 6. Defendants’ motion for an extension of time to file their response to Moore’s motion to compel discovery [Record No. 92] is GRANTED. The Clerk of the Court is directed to file the tendered response into the record. 7. Moore’s motion to compel the Defendants to gather data during their attempts to
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Case: 3:06-cv-00022-KKC Doc #: 139 Filed: 03/30/07 Page: 35 of 35 - Page ID#: 2350 draw blood from Moore [Record No. 82] is DENIED.
8. Moore’s motion to compel the Defendants to provide answers to his discovery requests [Record No. 83] is GRANTED in PART and DENIED in PART.
9. The parties shall file briefs addressing solely those issues identified in Section VII of this Memorandum as follows: Plaintiff Moore’s brief is due on or before April 18, 2007; Defendants’ brief is due on or before May 16, 2007; Plaintiff Moore’s reply is due on or before May 30, 2007. No other or further briefing shall be permitted unless directed by Order of the Court. The matter will stand submitted for decision upon filing of Moore’s reply.
10. All forms of discovery in this action shall be stayed pending further order of the Court.
Dated this 30th day of March, 2007.
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at FRANKFORT

BRIAN KEITH MOORE and ROGER DALE EPPERSON,
Plaintiffs, V.
JOHN D. REES, et al., Defendants.

CIVIL ACTION NO. 3: 06-22-KKC
MEMORANDUM OPINION AND ORDER

This matter is before the Court to address several issues previously raised in this
proceeding, including:
• whether the plaintiffs’ claims are barred by the statute of limitations under Cooey v. Strickland, 479 F. 3d 412 (6th Cir. 2007) [R. 139, 146, 154, 157, 212, 213, 231, 232];
• whether their claims survive the Supreme Court’s decision in Baze v. Rees, 553 U.S. 35 (2008) [R. 211, 212, 213, 220]; and
• whether their claims were rendered moot by subsequent revisions to Kentucky’s lethal injection protocol following the Kentucky Supreme Court’s decision in Bowling v. Kentucky Dept. of Corrections, 301 S. W. 3d 478 (Ky. 2009) [R. 228, 230, 231, 232].
These matters have been thoroughly briefed and are ripe for decision.
Background
Plaintiff Brian Keith Moore is an inmate confined at the Kentucky State
Penitentiary in Eddyville, Kentucky. In 1984, a Kentucky jury convicted Moore of the 1979
robbery, kidnapping, and murder of Virgil Harris, and subsequently sentenced Moore to
death. The Kentucky Supreme Court affirmed the conviction and sentence, and the United
States Supreme Court denied his petition for a writ of certiorari on March 26, 1990. Moore
v. Commonwealth, 771 S. W. 2d 34 (Ky. 1988), cert. denied, 494 U.S. 1060 (1990).

For his part, co-plaintiff Roger Dale Epperson was convicted in 1987 for the August 1985 robbery, burglary, and attempted murder of Dr. Roscoe Acker and the murder of ten— year—old Tammy Acker, and was sentenced to death for the murder. The Kentucky Supreme Court affirmed on direct appeal, and the United States Supreme Court denied his petition for a writ of certiorari on January 21, 1992. Epperson v. Commonwealth, 809 S. W. 2d 835 (Ky. 1991), cert. denied, 502 U.S. 1065 (1992). See Hodge v. Commonwealth, 68 S. W. 3d 338 (Ky. 2002) (Brief for Appellee, Epperson v. Commonwealth, 2000 WL 34332770, at *2 (May 25, 2000)).
Epperson was also separately convicted and sentenced to death for the June 1985 robbery, burglary, and double murder of Edwin Morris and his wife Bessie Morris. After the original 1987 conviction was vacated, Epperson was retried and again convicted. The Kentucky Supreme Court affirmed on direct appeal, and the United States Supreme Court denied his petition for a writ of certiorari on March 19, 2007. Epperson v. Commonwealth, 197 S.W.3d 46 (Ky. 2006), cert. denied, 549 U.S. 1290 (2007).
After Epperson’s conviction and Moore’s first conviction became final, effective on March 31, 1998, Kentucky revised its criminal statutes to provide that a sentence of death shall be carried out by lethal injection. Ky. Rev. Stat. 431.220(a). Prisoners like Moore and Epperson who were sentenced to death before the effective date are permitted to choose death by electrocution if they file that election at least 20 days before their scheduled execution. Ky. Rev. Stat. 431.220(b). Because the statute did not specify what chemicals were to be used for the lethal injection or how the procedure was to be carried out, the Kentucky Department of Corrections (“KDOC”) created an informal protocol addressing these matters. Bowling v. Kentucky Dept. of Corrections, 301 S. W. 3d 478, 482 (Ky. 2009). That protocol called first for the injection of three grams of sodium thiopental, then for fifty
2

milligrams of pancuronium bromide, and finally for 240 milliequivalents of potassium chloride. Baze v. Rees, 553 U.S. 35, 45 (2008).
On April 19, 2006, Moore filed his complaint in this action pursuant to 42 U.S.C. § 1983, contending that Kentucky’s intended use of its lethal injection protocol to carry out his sentence of death would constitute cruel and unusual punishment in violation of the Eighth Amendment. Moore’s complaint takes issue with numerous particulars of how the lethal injection would be administered, such as the identity, quantity, and order of administration for the three drugs involved in the protocol; the means for inserting an intravenous line; the adequacy of the experience and training of those who would administer the procedure; and the absence of life-saving equipment. Moore also contended that he possessed unique physical characteristics, including compromised veins from prior drug use and a heart attack as well as obesity, which would render it more likely that following the lethal injection protocol would cause him excruciating pain. [R. 1]
Epperson filed a motion to intervene in this action on March 19, 2007, contending that his claims challenging Kentucky’s lethal injection protocol shared a common legal and factual basis with Moore’s. [R. 137] Epperson’s complaint mimicked Moore’s in most respects, but unlike Moore he did not contend that he had any medical conditions which would complicate the administration of the lethal injection protocol. [R. 142 at 3-5] Instead, Epperson’s complaint contended only that the protocol – as written and as actually administered – would violate the Eighth Amendment. [R. 194] The Court granted Epperson’s motion to intervene on October 1, 2007. [R. 192]
Several years before Moore or Epperson raised these issues in this Court, fellow death row inmates Thomas Clyde Bowling and Ralph Baze had done so in 2004. In August of that year – represented by the same counsel who represent Moore and Epperson in this case – they filed a complaint in the Circuit Court of Franklin County, Kentucky, which was
3

essentially indistinguishable from those filed by the plaintiffs in this case. Baze and Bowling challenged the constitutionality of Kentucky’s lethal injection protocol, the state’s refusal to disclose the protocol, the use of a “cut-down” procedure to obtain venous access, and the alleged lack of training of execution team members. They also challenged the constitutionality of electrocution as a means of execution. [R. 111-2] Following discovery and a bench trial, the trial court in Baze v. Rees, No. 04-CI-1094 (Franklin Cir. Ct. 2004) upheld the constitutionality of electrocution and the lethal injection protocol in all pertinent respects. [R. 38-2]; Baze v. Rees, 553 U.S. 35 (2008) (Joint Appendix, 2007 WL 4790797, at *754-769 (Nov. 5, 2007)). The Kentucky Supreme Court affirmed on direct appeal, likewise holding that electrocution and Kentucky’s lethal injection protocol did not conflict with the federal Constitution’s prohibition against cruel and unusual punishment. Baze v. Rees, 217 S. W. 3d 207 (2006).1
The United States Supreme Court then granted Baze and Bowling’s petition for a writ of certiorari, and squarely held that Kentucky’s lethal injection protocol, the very same one at issue in Moore and Epperson’s complaints and challenged on many of the same grounds, did not violate the Constitution. Baze v. Rees, 553 U.S. 35 (2008). In doing so, the Supreme Court rejected the claim that Kentucky’s protocol violated the Eighth Amendment simply because it did not and could not eliminate all risk of pain or any chance that the protocol would not be precisely followed. Id. at 48-51. The Court also specifically considered and rejected a variety of concerns proffered by the inmates, including but not limited to difficulties in properly inserting intravenous catheters and inadequate facilities and training. Baze, 553 U.S. at 54-55.
1 This Court later denied Baze and Bowling’s motions to intervene in this proceeding because the adverse termination of their state court proceedings precluded the assertion of the same or similar claims here. [R. 188, 190]
4

Independent of their respective Eighth Amendment challenges, in 2006 Bowling, Baze, and Moore filed a separate state court action contending that Kentucky’s lethal injection protocol was unenforceable because it was not adopted as an administrative regulation in conformity with Kentucky’s Administrative Procedure Act. The Kentucky courts ultimately found that Bowling and Baze were precluded from asserting this claim because it was one they could and must have pursued in their first state court action. Bowling, 301 S. W. 3d at 485 (“The availability of a declaratory action does not, however, mean that multiple declaratory actions may be filed seriatim challenging implementation of the death penalty on selected grounds. When a capital defendant files a declaratory judgment action, he must join all claims then available to him with regard to the implementation of his judgment because res judicata will apply full force to bar successive declaratory judgment actions.”). Moore, however, was not so barred, and the Kentucky Supreme Court concluded that the KDOC was required to promulgate its lethal injection protocol as an administrative regulation. Id. at 488-91.
Following public notice and hearings [R. 226], on May 7, 2010, the KDOC formally promulgated its lethal injection procedures and protocol in regulations set forth at 501 K.A.R. 16:001-16:330. Comm. ex rel. Conway v. Shepherd, 336 S. W. 3d 98 (Ky. 2011). The initial version of the regulations retained the original three-drug protocol. Wilson v. Rees, 620 F. 3d 699, 701 (6th Cir. 2010) (“Here, the state merely adopted its preexisting protocol as a regulation, making no material changes to the method of execution.”); see 2010 Ky. Reg. Text 209954 NS (June 1, 2010). But following additional litigation in the Franklin Circuit Court, KDOC further revised the regulations in 2012 and 2013. See 2012 Ky. Reg. Text 303221 NS (Dec. 1, 2012); 2013 Ky. Reg. Text 303221 NS (Apr. 1, 2013). Unlike the prior three-drug protocol, the revised protocol calls for the injection of a single dose of either three grams of sodium thiopental or five grams of pentobarbital. 501 K.A.R. 16:330 § 3(2).
5

If these drugs are unavailable within seven days before the execution, 501 K.A.R. 16:330 § 2(1) directs that the execution shall follow a two-drug protocol, calling for the injection of ten milligrams of midazolam and forty milligrams of hydromorphone. 501 K.A.R. 16:330 § 3(3).2
Discussion A. Moore and Eppersons’ claims are barred by the statute of limitations. In their answers to the plaintiffs’ complaints, the defendants assert that Moore and Epperson’s claims are barred by the statute of limitations. [R. 38 at 2; R. 195 at 2] Shortly after this case was filed, the Sixth Circuit issued a decision regarding the accrual of method-of-execution claims in Cooey v. Strickland, 479 F. 3d 412 (6th Cir. 2007). In Cooey, the Sixth Circuit determined that such a method-of-execution claim – that a state’s particular method of carrying out a sentence of death violates the Constitution, particularly the Eighth Amendment’s prohibition against cruel and unusual punishments – accrues upon the conclusion of direct review (or the expiration of time for seeking such review) of the prisoner’s underlying conviction and sentence in the state courts. Id. at 422. If, however, the state did not adopt lethal injection as the method of execution until after direct review of the prisoner’s conviction had concluded, then the claim accrues from the later date when the state adopts lethal injection as the method of execution. Id. In reaching its conclusion, the Sixth Circuit made clear that it is the state’s adoption of the general method of execution (lethal injection), rather than the particular protocol for carrying it out, which triggers the accrual of the claim. Accordingly, changes to the particular protocol will not delay or modify the accrual date. Cooey, 479 F. 3d at 423-24.
2 KDOC has indicated that its secondary protocol, while still technically in force, will not be used. On November 13, 2014, KDOC filed a notice in ongoing state litigation regarding the validity of its regulations, Baze v. Rees, No. 06-CI-574 (Franklin Cir. Ct. 2006), that it intended to eliminate or supplant the two-drug execution protocol it adopted as a secondary mechanism in 2012. KDOC anticipated that issuing new regulations would take at least six months, but it appears that no new regulations have been issued to date.
6

In this case, the direct review of Moore’s conviction and sentence concluded on March 26, 1990, when the United States Supreme Court denied his petition for a writ of certiorari. Moore v. Commonwealth, 771 S. W. 2d 34 (Ky. 1988), cert. denied, 494 U.S. 1060 (1990). Direct review of Epperson’s first conviction and sentence concluded upon the Supreme Court’s denial of certiorari on January 21, 1992. Epperson v. Commonwealth, 809 S. W. 2d 835 (Ky. 1991), cert. denied, 502 U.S. 1065 (1992). However, Kentucky did not establish lethal injection as the method of carrying out a sentence of death until March 31, 1998. Applying the Sixth Circuit’s approach in Cooey, the Eighth Amendment method-ofexecution claims for Moore and Epperson therefore accrued on March 31, 1998. Cooey, 479 F. 3d at 422.
Because 42 U.S.C. § 1983 does not provide its own statute of limitations, courts apply the most analogous statute of limitations from the state where the events occurred. Wilson v. Garcia, 471 U.S. 261, 268-71 (1985). For constitutional tort claims arising in Kentucky, the state’s one-year statute of limitations for asserting personal injuries applies. Ky. Rev. Stat. § 413.140(1)(a); Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003); Collard v. Kentucky Board of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). Moore and Epperson were therefore required to file suit asserting their method-of-execution claims on or before March 31, 1999. Moore filed his complaint in this action on April 19, 2006. [R. 1] Epperson’s complaint [R. 137] is deemed filed on March 19, 2007, the date he moved to intervene in this action and tendered his proposed complaint. U.S. for Use and Benefit of Canion v. Randall & Blake, 817 F. 2d 1188, 1192 (5th Cir. 1987) (“the filing of the motion for intervention, and not the later approval of the motion and actual filing of the complaint, determines the commencement of the action for purposes of the statute of limitations.”) Because both complaints were filed eight or more years after the plaintiffs’ claims accrued, a straightforward application of Cooey requires the conclusion that their claims must be
7

dismissed as time-barred. In resisting this conclusion, Moore argues that he could not reasonably have known
the factual basis for his claims until he was aware of all of the particulars of the execution protocol, a fact which he contends occurred no earlier than when the Franklin Circuit Court conducted its bench trial on Baze and Bowlings’ identical claims. [R. 146 at 26-30] The warden contends that this characterization is factually baseless, and that the type and amount of information available to Moore regarding Kentucky’s lethal injection protocol was similar to that available regarding Ohio’s lethal injection protocol and found sufficient to trigger claim accrual in Cooey. [R. 154 at 15-21]
Moore’s position essentially adopts that taken by the dissent in Cooey. Cooey, 479 F. 3d at 424, 246 (Gilman, J., dissenting) (“A death-sentenced inmate knows or has reason to know of the facts of his method-of-execution challenge when he learns the details of the protocol that will be used for his execution.”) (citing Collyer v. Darling, 98 F. 3d 211, 220 (6th Cir. 1996)). Whatever the persuasive force of this view, the majority in Cooey rejected it, Id. at 423-24, and subsequent decisions by the Sixth Circuit have adhered to Cooey’s central holding. See Wilson v. Rees, No. 3:07-CV-78-KKC, 2009 WL 3188947 (E.D. Ky. Sept. 30, 2009),3 aff’d, 620 F. 3d 699 (6th Cir.), reh’g en banc denied, 624 F. 3d 737 (6th Cir. 2010), cert. denied, 562 U.S. 1219 (2011). See also Broom v. Strickland, 579 F. 3d 553, 556 (6th Cir. 2009) (“But Cooey II indicated that despite the failure of the ODRC to reveal details concerning execution protocols, Cooey and other similarly situated death-sentenced prisoners had the information required to file their claims no later than December 2001, when lethal injection became the sole method of execution in Ohio.”); Getsy v. Strickland,
3 In Wilson, this Court also held that an inmate who, like Epperson and Moore, was sentenced to death before 1998 (and who under Kentucky law therefore has the right to choose electrocution as the method of execution) does not by virtue of possessing that right indefinitely delay accrual of a claim challenging the constitutionality of Kentucky’s lethal injection protocol.
8

577 F. 3d 309, 312-313 (6th Cir. 2009). Epperson argues that his method-of-execution claim did not and could not accrue
until his second, rather than his first, sentence of death became final on direct review. But he offers no explanation how the pendency of ongoing criminal proceedings against him on different charges rendered his first conviction non-final, or otherwise prevented him from having a “complete and present cause of action” on March 31, 1998 to challenge the use of lethal injection to carry out the sentence of death he unquestionably faced at that juncture. Cooey, 479 F. 3d at 416. By March 31, 1998, Epperson could “file suit and obtain relief,” Wallace v. Kato, 549 U.S. 384, 388 (2007), and his claims accrued at that time. Under this controlling Sixth Circuit precedent, Epperson and Moore’s challenge to Kentucky’s lethal injection protocol is time-barred.4
Even if the Court could disregard Cooey and instead applied more general rules of claim accrual, Moore and Epperson’s claims would still plainly be time-barred. Like Baze, Bowling, and nearly every other inmate on Kentucky’s death row, in July 2004, Epperson signed a group grievance challenging the identity, amount, and timing of the drugs used in Kentucky’s lethal injection protocol. [R. 144-3] Shortly after the grievance was rejected, in August 2004 Baze and Bowling filed suit in Franklin Circuit Court challenging the constitutionality of the lethal injection protocol. Notwithstanding their claim that KDOC’s “refusal to provide Plaintiffs with a complete copy of the execution procedures” violated their due process rights [R. 111-2 at 2], Baze and Bowling had gathered ample information about the protocol to formulate and file their complaint. The complaint set forth in detail aspects of the lethal injection protocol, including the chemicals involved, the amount, order,
4 Moore and Epperson also contend that electrocution as a method of execution is facially unconstitutional [R. 1 at 59; R. 137-1 at 57-58], but the Court has already concluded that this claim must be dismissed because, under well-established Sixth Circuit precedent, the claim constitutes a de facto second or successive habeas corpus petition and is substantively meritless. [R. 139 at 12-16]
9

and rate of their administration, the means to be used to insert an I.V. line, possible insertion sites for the I.V. line, the absence of a training requirement for the execution team, and the medical equipment available to the execution team. [R. 111-2, ¶¶7, 8, 13, 34, 44, 105, 111, 144] Some of this information had been provided by the KDOC more than two years before, on May 14, 2002, in response to a simple Open Records request. [R. 111-2 at 33] No one, least of all Bowling and Baze, contended in 2004 that their claim had yet to accrue because they did not yet know every particular of the protocol.
By mid-2002, information was readily available about Kentucky’s lethal injection protocol sufficient to provide notice to any death-sentenced inmate, including Moore and Epperson, of both the injury he faced and its cause. Arauz v. Bell, 307 F. App’x 923, 928 (6th Cir. 2009) (“under federal law, the statute of limitations begins to run when the plaintiff knows or has reason to know of the injury which is the basis of his action.”) (quoting McCune v. City of Grand Rapids, 842 F. 2d 903, 905 (6th Cir. 1988) (emphasis added, internal quotation marks omitted). And by August 2004, not only was information about the underlying protocol readily available, but the plaintiffs would or should have been aware of pending litigation regarding it. Because the statute of limitations begins to run upon the occurrence of the “event that should have alerted the typical lay person to protect his or her rights,” Trzebuckowski v. City of Cleveland, 319 F. 3d 853, 856 (6th Cir. 2003), their claims accrued no later than this date. A plaintiff need not have actual knowledge of every detailed minutiae which may support his claim before federal law deems his claim to have accrued. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F. 3d 1380, 1386 (3d Cir. 1994) (“[T]he polestar of the discovery rule is not the plaintiff’s actual knowledge of injury, but rather whether the knowledge was known, or through the exercise of reasonable diligence, knowable to the plaintiff.”); Baker v. Board of Regents of State of Kansas, 991 F. 2d 628, 632 (10th Cir. 1993) (“[I]t is not necessary that a claimant know all
10

of the evidence ultimately relied on for the cause of action to accrue.”); Alexander v. Oklahoma, 382 F. 3d 1206, 1215-16 (10th Cir. 2004). Because Epperson and Moore’s claims were barred by the running of the limitations period long before they filed suit, these claims must be dismissed.
B. Baze v. Rees established that Kentucky’s lethal injection protocol as written and implemented does not violate the Constitution.
In his complaint, Moore takes issue with numerous particulars of Kentucky’s lethal injection protocol, such as the chemicals chosen by Kentucky as part of its three drug procedure, the amounts to be administered, the asserted lack of safeguards to prevent or respond to a variety of potential unforeseen events, the methods to be used to obtain venous access, the sufficiency of the training given to members of the execution team, and the asserted lack of available equipment to engage in life-saving measures should there be a last-minute reprieve. [R. 1]
In his March 2007 motion to intervene in this action, Epperson asserted that “he is similarly situated [to Moore], asserts the same cause of action, and makes the same arguments … with the exception of compromised veins.” [R. 137 at 2-3] Indeed, Epperson’s complaint is a near-verbatim recitation of the allegations in Moore’s complaint, asserting the same claims and omitting those paragraphs specific to Moore’s conviction, compromised veins, and obesity. [R. 1 at ¶¶4-6, 31, 101-106, 233-234, 242-248, 332-335, 354-370, 381394, 402, 495, 496, 507] Like Moore, and Baze and Bowling before him, Epperson contends that Kentucky’s lethal injection protocol violates the Eighth Amendment in numerous particulars, including its choice of chemicals and the amount and method of their administration, as well as the asserted lack of training and equipment possessed by those personnel charged with carrying out the procedure.5 [R. 1 at 52-59; R. 111-2 at 26-30;
5 Moore and Epperson both characterize each of their two dozen or more disagreements with the protocol or
11

R. 194 at 57-58]
On April 16, 2008, the United States Supreme Court issued its decision upholding
Kentucky’s lethal injection protocol against Baze and Bowling’s Eighth Amendment
challenge. Baze v. Rees, 553 U.S. 35 (2008). Shortly thereafter, Epperson and Moore filed a
motion in this action conceding that the Baze decision precludes almost all of their claims,
but contend that three survive. Moore alone contends that use of the lethal injection
protocol at his execution could cause “a substantial risk of serious harm” because he has
compromised veins, a medical condition not at issue in Baze. Both plaintiffs contend that
the lethal injection protocol violates the Eighth Amendment because (1) it fails to require
adequate training, procedures and equipment to save his life in the eventuality that,
halfway through the procedure, a stay of execution is granted, and (2) future discovery in
this case might reveal other, as-yet uncomplained of difficulties, such as that the execution
team do not actually possess the training required by the protocol, or that the execution
team might simply decide to disregard or not follow the protocol. [R. 211 at 2]
The plaintiffs’ third “claim” amounts to little more than a request for further
concerns regarding its administration as an independent claim. But in truth they assert just one claim: that their execution under Kentucky’s lethal injection protocol would violate the Constitution. Cf. N.A.A.C.P. v. American Family Mut. Ins. Co., 978 F. 2d 287, 292 (7th Cir. 1992) (“One set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violate.”). Indeed, plaintiffs’ counsel argued to the Supreme Court that this was the correct approach:
The question whether a State’s execution procedures create an unnecessary risk of pain requires consideration of the cumulative risk created by all of the individual deficiencies in the procedures. In other words, the question is not, as the Kentucky courts framed it, the degree of risk that an individual problem will occur - such as improper preparation of the drugs or an infiltrated IV - but the degree of risk of severe pain caused by the cumulative effect of all of the deficiencies, combined with the danger created by the use of personnel who are unequipped to prevent or correct these foreseeable problems.
Baze v. Rees, 553 U.S. 35 (2008) (Brief for Appellant, 2007 WL 3307732, at *44 (Nov. 5, 2007)). Both the Kentucky Supreme Court and the United States Supreme Court treated Baze and Bowling’s complaint, which likewise asserted over a dozen “claims,” as presenting only a single claim challenging the protocol’s constitutionality. Baze v. Rees, 217 S. W. 3d 207, 209 (2006) (“The single issue is whether the lethal injection provisions for execution protocol violate or threaten to violate the rights of Baze and Bowling to be free from cruel and unusual punishment.”); Baze v. Rees, 553 U.S. 35, 47, 63 (2008).
12

discovery to assert even more new “claims,” rather than an assertion that an already existing one survives analysis under Baze. And the Supreme Court’s opinion made clear not only that adherence to Kentucky’s protocol would not present constitutional concerns, but that plaintiffs had failed to demonstrate any legally-sufficient likelihood that it would not be followed to implicate the Eighth Amendment. Baze, 553 U.S. at 54-62 (“The risks of maladministration they have suggested – such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel – cannot remotely be characterized as ‘objectively intolerable.’ Kentucky’s decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment.”).
The Court does agree with Moore that, if his claims were not otherwise time-barred, the Baze decision would not necessarily preclude his single concern that the protocol might violate the Eighth Amendment unless adapted to account for his compromised veins or other physical characteristics unique to him. This is not, as the plaintiffs incredibly suggest, because the Baze decision was limited to the constitutionality of the lethal injection protocol as written, and did not involve a case where “the death-sentenced inmate concedes the constitutionality of the protocol as written but argues that the constitutional protocol is being implemented in an unconstitutional manner.” [R. 213 at 2] This was precisely the claim litigated by Baze and Bowling in the state courts and the very claim squarely rejected by the Supreme Court. Baze, 553 U.S. at 40 (“Petitioners in this case … acknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that … the protocol’s terms might not be properly followed, resulting in significant pain.”) Rather, Moore’s concern regarding his compromised veins is distinct from the challenge to the protocol involved in Baze because “details in the procedure might interact with the medical condition of the specific
13

condemned prisoner in constitutionally significant ways.” Cooey v. Strickland, 544 F. 3d 588, 591 (6th Cir. 2008) (Gilman, J., concurring).
Finally, the plaintiffs are correct that because the Supreme Court chose to narrow the scope of the issues to be decided, Baze v. Rees, 552 U.S. 945 (2007), it did not reach the question whether the Constitution requires certain safeguards to be in place to resuscitate the condemned if a stay of execution is granted after the procedure has commenced. This does not suggest that such a claim is plausible, cf. Chester v. Wetzel, No. 1:08-CV-1261, 2012 WL 5439054, at *8-9 (M.D. Penn. Nov. 6, 2012) (“The fact that other states provide a mechanism for resuscitation or stabilization of an inmate in the event that a stay of execution is ordered after the lethal drugs have been administered does not mean that all lethal injection protocols without such a procedure are unconstitutional.”) (quoting Evans v. Bennett, 440 U.S. 1301, 1303 (1979) (“There must come a time, even when so irreversible a penalty as that of death has been imposed upon a particular defendant, when the legal issues in the case have been sufficiently litigated and relitigated that the law must be allowed to run its course.”)), but only that it is not squarely foreclosed by the Supreme Court’s decision in Baze. The Court reaches no formal conclusions on these matters, but notes parenthetically that, even had the plaintiffs timely asserted their claims, only these two aspects of their claims could conceivably survive the Supreme Court’s decision in Baze.
C. Revisions to Kentucky’s lethal injection protocol render plaintiffs’ claims moot.
Following the decision in Baze, the Kentucky Supreme Court held that KDOC’s lethal injection protocol – the same one challenged Moore and Epperson in this action – was unenforceable unless promulgated as a formal regulation in conformity with Kentucky’s Administrative Procedures Act. Bowling v. Kentucky Dept. of Corrections, 301 S. W. 3d 478, 488-91 (Ky. 2009). KDOC issued new formal regulations, the current version of which call
14

for the administration of a single drug in carrying out a sentence of death by lethal injection, with a two-drug protocol as a secondary method if neither of the drugs required for a single drug method is available. 501 K.A.R. 16:330 §§ 2(1), 3(1), 3(2).
Plaintiffs concede that the adoption of an entirely-new lethal injection protocol over the course of several years between 2010 and 2013 has rendered many aspects of their original claim moot. However, they contend that certain concerns with the protocol have not been rendered moot because they remain unchanged, including the use of sodium thiopental (particularly in light of Moore’s obesity and cardiovascular disease), the sufficiency of execution team’s training, potential insertion of an I.V. line in the condemned’s groin, taking up to an hour to establish intravenous lines, and the sufficiency of equipment and training if life-saving measures are called for by a stay of execution. [R. 230] It should be noted that many of these matters may not have been rendered moot by the changes to the protocol, but plaintiffs have already conceded that they cannot survive scrutiny under Baze. [R. 211] For example, the Supreme Court in Baze considered Kentucky’s requirements for the qualifications of the execution team, now set forth in K.A.R. § 16:320, and the protocol’s direction that the I.V. team has sixty minutes to establish primary and backup intravenous lines, and found that the protocol passed constitutional muster. Baze, 553 U.S. at 54-55.
But dissection of the complaint into its particular arguments does not materially advance the inquiry. Mootness doctrine, a corollary to Article III’s “case or controversy” requirement, is focused upon determining whether circumstances intervening during the pendency of the litigation have deprived the plaintiff of a personal stake in the outcome of the suit, Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990), or whether the issues presented in the original complaint are no longer “live,” Alvarez v. Smith, 558 U.S. 87, 92 (2009). The fact that the protocol originally challenged in plaintiffs’ complaints is no
15

longer in force and will not be utilized in their execution unquestionably deprives them of a personal stake in its validity. Cf. Theodore Roosevelt Conserv. P’ship v. Salazar, 661 F. 3d 66, 78-79 (D.C. Cir. 2011).
Moore and Epperson argue that the entirety of their case is not moot because remnants of the original protocol remain in its present version. But as noted above, such individual aspects cannot be viewed in isolation. Rather, the parts of the protocol about which plaintiffs express concern are merely part of a larger coherent process to prepare for and carry out the execution. This includes ensuring that certain equipment is available, requiring training and practice for the execution team, establishing the methods, location, and timing for obtaining venous access, the amount and sequence of the drugs involved, and supervisory assessments of certain eventualities should they occur. Evaluation of all of these constituent parts, considered together, would inform determination of the single claim that the protocol as a whole, as written and/or as actually carried out, violates the Eighth Amendment. [R. 1 at 2]; Baze v. Rees, 553 U.S. 35 (2008) (Brief for Appellant, 2007 WL 3307732, at *44 (Nov. 5, 2007)). Thus, for example, plaintiffs’ expressed desire to assert that execution team members lack the training and experience to carry out Kentucky’s revised one- (or two-) drug protocols is, both factually and legally, a new and wholly-distinct claim from their prior claim that the execution team lacked the training or experience to carry out Kentucky’s old three-drug protocol. Because the old informal protocol has been wholly supplanted by a new lethal injection protocol in formally adopted regulations, the nature of plaintiffs’ disagreements with the protocol, both as written and as actually implemented, no longer present a live controversy. Thus, in this context, the Sixth Circuit has held that the adoption of a modified execution protocol rendered challenge to the previous version moot:
As to the merits, the district court’s stay order must be vacated because any 16

challenge to Ohio’s three-drug execution protocol is now moot. Since Biros filed his lawsuit, the State has amended its lethal injection protocol. As noted, it now has a single-drug intravenous procedure and uses a two-drug intramuscular procedure as a back-up if it cannot access the veins of the individual. Cooey (Biros) v. Strickland, 588 F. 3d 921, 923, reh’g en banc denied, 588 F. 3d 924 (6th Cir. 2009). See also Ringo v. Lombardi, 677 F. 3d 793, 797-98 (8th Cir. 2012) (holding that indefinite unavailability of drugs used in lethal injection protocol rendered challenge to protocol moot, citing Cooey). For these reasons, Moore and Epperson’s challenge to Kentucky’s since-superseded lethal injection protocol are also subject to dismissal on mootness grounds. Accordingly, IT IS ORDERED that: 1. The complaints of plaintiffs Brian Keith Moore [R. 1] and Roger Dale Epperson [R. 194] are DISMISSED WITH PREJUDICE. 2. The Court will enter a Judgment contemporaneously with this Order. 3. This action is DISMISSED and STRICKEN from the Court’s docket. 4. This is a final and appealable Order and there is no just cause for delay. Dated October 13, 2015.
17

 
 Case: 3:06-cv-00022-KKC Doc #: 234 Filed: 10/13/15 Page: 1 of 1 - Page ID#: 5062

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

BRIAN KEITH MOORE and ROGER DALE EPPERSON,
Plaintiffs,
V.
JOHN D. REES, et al., Defendants.

Civil Action No. 3: 06-22-KKC JUDGMENT

Pursuant to Rule 58 of the Federal Rules of Civil Procedure, and in accordance with the Memorandum Opinion and Order entered this date, it is hereby
ORDERED and ADJUDGED as follows: 1. Judgment is entered in favor of the defendants with respect to all issues raised in this proceeding. 2. This action is DISMISSED and STRICKEN from the Court’s docket. 3. This is a FINAL and APPEALABLE Judgment and there is no just cause for delay. Dated October 13, 2015.

 
 IN THE CIRCUIT COURT FOR FRANKLIN COUNTY COMMONWEALTH OF KENTUCKY

______________________________

)

THOMAS CLYDE BOWLING, )

)

and,

)

)

RALPH BAZE,

)

)

and

)

)

BRIAN KEITH MOORE

)

)

Plaintiffs,

)

)

v.

)

)

KENTUCKY DEPARTMENT )

OF CORRECTIONS,

)

)

Defendant.

)

______________________________)

CIV. ACTION # ________

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF 1. This action is brought pursuant to Kentucky Rules of Civil Procedure, Rule CR 57
(declaratory judgment), CR 65.01 (injunctive relief), and CR 65.04 (temporary injunctions) for violations of KRS Chapter 13A, Administrative Procedures.
2. Plaintiffs, Thomas Clyde Bowling, Ralph Baze and Brian Keith Moore are all under a sentence of death. Plaintiffs bring this Complaint against the Kentucky Department of Corrections and ask this Court to enter a judgment declaring null and void the procedures used by the Department of Corrections to carry out a death sentence because they violate KRS 13A.100, and that the Department of Corrections be enjoined from carrying out any execution

until such time as the procedures for carrying out an execution are promulgated as a rule pursuant to KRS Chapter 13A.
2. CR 57 authorizes declaratory judgment as a form of relief and explicitly states that “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief.”
3. CR 65.01 authorizes a temporary injunction to “restrict or mandatorily direct the doing of an act.”
4. CR 65.04 authorizes a temporary injunction “during the pendency of an action on motion if it is clearly shown by verified complaint, affidavit, or other evidence that the movant’s rights are being or will be violated by an adverse party and the movant will suffer immediate and irreparable injury, loss, or damage pending a final judgment in the action, or the acts of the adverse party will tend to render such final judgment ineffectual.”
5. KRS 431.220(a) states that with one exception, “every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death.”1
6. The Kentucky Department of Corrections (DOC) has created a Policy and Procedure Manual to regulate the operation of the Department, pursuant to KRS 196.035.
7. All Corrections Policy and Procedure provisions are incorporated by reference into the Kentucky Administrative Regulations.2
8. One of those procedures is entitled “Execution.”3 9. That policy does not contain any reference to the actual procedure that is used to carry out a death sentence, but instead treats issues such as where the inmate is housed, and who is in
1 The exception is that prisoners who received a death sentence before March 31, 1998, may choose either the method of execution as set out in paragraph (a) of KRS 431.220, or electrocution. 2 501 KAR 6:020. 3 CPP 9.5

charge of carrying out certain duties such as selecting an executioner and who operates the prison on the day of the execution.4
10. The actual details of how an execution is carried out are written down by the Department of Corrections, but those details are not and have not been made public, nor have they become the subject of any promulgated regulation.
11. DOC is attempting to implement KRS 431.220 through a secret policy promulgated outside the procedures set out in KRS Chapter 13A.
12. DOC has created “checklists” containing the actions that must be taken before, during and after an execution. One checklist was created in 1998 after the method of execution was changed from electrocution to lethal injection. Another was created in 2002. A third was created in 2004.5
13. None of these “checklists” are included in DOC’s Policies and Procedures Manual or adopted as separate administrative regulations.
14. DOC steadfastly refuses to make these checklists public, as evidenced by its recent refusal to turn these documents over to Plaintiff’s lawyers pursuant to an open records request.6
15. DOC is attempting to implement a statute through secret “checklists” created by Department staff, outside KRS Chapter 13A procedures.
4 Id. 5 These “checklists” are part of a sealed court record in Baze v. Rees, N0. 04-CI-1094, Franklin Circuit Court, Kentucky. 6 Exhibit 1, Response to Brian Keith Moore’s Open Records request. Further, these documents cannot be attached to this litigation because they are under seal in the Franklin Circuit Court.

16. KRS 13A.100(1) requires an administrative body7 to promulgate administrative regulations governing:
Each statement of general applicability, policy, procedure, memorandum, or other form of action that implements; interprets; prescribes law or policy; describes the organization, procedure, or practice requirements of any administrative body; or affects private rights or procedures available to the public. 17. No internal memorandum can substitute for a regulation where one is required.8 18. No internal “administration” policy such as the “checklist” used to detail the procedure whereby Kentucky kills inmates can substitute for a regulation where one is required.9 19. This action is different from the previous Eighth and Fourteenth Amendment challenge to the chemicals and procedures for lethal injections filed by Baze and Bowling, in which the execution protocols were sealed. This action only alleges that Defendant is violating the administrative procedures act by not disclosing documents that must be disclosed before an administrative procedure can be implemented.
7 KRS 13A.100 uses the mandatory “shall”, not the permissive “may.” 8 KRS 13A.120(6); KRS 13A.130(2) 9 Id.

WHEREFORE, Plaintiffs, Thomas Clyde Bowling, Ralph Baze and Brian Keith Moore request that this Court declare that all Department of Corrections “checklists” or other unapproved written procedures for conducting an execution be declared null, void and unenforceable, and enter an injunction barring DOC from carrying out any execution in the Commonwealth of Kentucky until such time as it promulgates a rule pursuant to KRS Chapter 13A detailing all aspects of the procedures used to execute a defendant, and that rule passes judicial scrutiny.

RESPECTFULLY SUBMITTED,
_____________________ SUSAN J. BALLIET Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948
April 26, 2006

______________________ DAVID M. BARRON Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948

INTRODUCTION Brian Keith Moore has severely compromised veins that will make it difficult if not impossible to insert an I.V. when Defendants attempt to carry out his execution. Defendants are well-aware of this problem from their own attempts to draw blood or insert an I.V. into Moore during routine medical procedures. Yet, Defendants have done nothing to solve this problem. They plan to spend 60 minutes attempting to get two I.V.’s into Moore. If, as expected, they cannot start an I.V., they will ask Defendant Fletcher to call off the execution, reschedule it, and then force Moore to suffer the mental and physical torture of another 60 minutes of useless attempts to start an I.V. This second attempt to insert an I.V. will be the same as the first; Defendants will take no additional steps to guarantee that they will be able to insert the I.V. through peripheral access. If Defendant Fletcher refuses to call off the execution, or if Defendants are unable to insert an I.V. the second time around, they may resort to the excruciatingly painful “cut down” procedure that poses a substantial risk that Moore will bleed to death or suffocate before the chemicals are injected.1 Sixty minutes of sticking Moore with a needle and the use of a “cut down” procedure create an unnecessary risk of pain and suffering. In addition, requiring Moore to lay strapped to a gurney as Defendants repeatedly spend 60 minute periods attempting to insert an I.V., when they could have done so the first time around if they had properly prepared an alternative method of accessing Moore’s veins, constitutes unnecessary physical and psychological pain in violation of the Constitution.
1 In previous lethal injection litigation on behalf of Ralph Baze and Thomas Bowling, Defendants agreed to not use a “cut down” procedure to execute. Nothing currently prevents them from using a “cut down” procedure to execute Moore, or to amend their execution procedures to incorporate the “cut down” procedure. In fact, counsel for Defendants in Baze v. Rees, No. 04-CI-1094 (Franklin Cir. Ct. 2005), said that a cut-down would not be used in that case, but that may be an option when executing other Kentucky death-sentenced inmates.

The pain and suffering Moore will suffer if Defendants actually succeed in injecting him with sodium thiopental, pancuronium bromide, and potassium chloride has been described as the “fires of hell.” This pain and suffering could be easily avoided if Defendants injected different chemicals that they know pose less risk of pain and suffering, and if Defendants refrain from injecting pancuronium bromide - - a chemical that prevents us from seeing if the inmate is in pain and that is banned for the euthanasia of household pets. This poses the question, if the risk of pain and suffering from using Defendants’ lethal injection chemicals is so strong that we cannot kill a dog like this, how can we kill a human being this way?
Defendants intend to kill Moore without regard for the risks associated with the chemicals and procedures they will use to poison him, including the problems these chemicals pose if a stay of execution is granted after the lethal injection process begins. If a stay of execution is granted after sodium thiopental or pancuronium bromide has been injected, Moore could be saved. Defendants are fully aware that the effects of the first and second lethal injection chemicals are easily reversible. They have purchased a crash cart to maintain life if a stay of execution is granted under these circumstances. But through incompetence, they have not purchased the right equipment, or even the equipment counsel for Defendants told them they needed. Thus, even if they have a trained individual to use the crash cart, Moore will die, not because his lawful sentence is being carried out, but because Defendants have not fulfilled their obligation to take all reasonable steps to maintain life if a stay is granted.
In addition, Defendants’ failure to disclose a full copy of their execution procedures allows them to carry out Moore’s execution in a secretive manner without anyone determining if they are violating the Constitution. Our Constitution does not permit this. Each of these issues is raised in this. lawsuit, which is brought under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth
2

Amendments. Moore requests declaratory and injunctive relief.
SUMMARY OF ARGUMENT
A portion of a method of execution is unconstitutional when it causes excessive pain,2 also
when it violates the evolving standards of decency,3 or when it poses an unnecessary risk of pain and
suffering.4 The words “unnecessary” and “risk” are important. A “risk” is unconstitutional when it
is either more than the Constitution tolerates,5 or when it is “unnecessary” because less risky
alternatives are readily available.6 Numerous aspects of Defendants’ lethal injection procedures
violate this portion of the cruel and unusual punishment clause of the Eighth Amendment to the
United States Constitution.
Because a prisoner remains under the care of the prison until death, the dying process by
lethal injection must be considered a “medical need” that must be as painless as Defendants can
make it. Defendants’ failure to implement less painful alternative chemicals and procedures is an
independent constitutional violation as it constitutes deliberate indifference towards known medical
needs.7 But the full extent of Defendants’ constitutional violations is unknown because, in violation
of due process, they refuse to disclose a full copy of their execution procedures and other
information relevant to this litigation.8 Finally, Defendants’ failure to obtain and use the proper
equipment to maintain life if a stay of execution is granted after the injection of the first and second
2 In re Kemmler, 136 U.S. 436, 447 (1890). 3 Roper v. Simmons, 125 S.Ct. 1183 (2005); Atkins v. Virginia, 536 U.S. 304, 312 (2002); Trop v. Dulles, 356 U.S. 86, 100 (1958). 4 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947); Farmer v. Brennan, 511 U.S. 825 (1994). 5 Farmer v. Brennan, 511 U.S. 825, 846 (1994) (the inquiry is whether the procedures pose an “objectively intolerable risk of harm”); Helling v. McKinney, 509 U.S. 25, 33 (1993) (holding that the Eighth Amendment analysis “requires a court to assess whether society considers the risk that the prisoner complains of” to be more than the Constitution tolerates); Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 2004) (holding that an 8th Amendment challenge to a method of execution must be considered in terms of the risk of pain). 6 Furman v. Georgia, 408 U.S. 238 (1970). 7 C.f., Estelle v. Gamble, 429 U.S. 97, 104 (1976). 8 Exhibit 1 (Defendants’ Response to Open Records Request).
3

chemicals deprives Moore of due process. Each of these constitutional violations has its roots in the
casual, negligent manner in which Defendants came to adopt the chemicals and procedures they plan
to use to kill Moore.
Lethal injection was first adopted as a method of execution in the United States when
Oklahoma reinstated the death penalty in 1977. In 1978, Oklahoma created the first protocol for
carrying out lethal injections, without conducting any medical or scientific studies on the effects of the chemicals when used in conjunction.9 Oklahoma’s protocol called for the administration of a short acting barbiturate in conjunction with a neuromuscular blocking agent.10 Four years later, in
1982, without conducting any medical or scientific study, Texas carried out the first execution by
lethal injection by administering sodium thiopental, pancuronium bromide, and potassium chloride,
in succession. In the years following, numerous states adopted lethal injection and implemented the
tri-chemical cocktail first used in Texas, again without conducting any medical or scientific study into the use of these chemicals individually or together in a lethal injection.11
In 1998, Kentucky became one of the states blindly adopting sodium thiopental, pancuronium bromide, and potassium chloride as the lethal injection chemicals.12 A year later,
without conducting any medical or scientific study concerning the effects of the chemicals when
used for lethal injections or when used in combination, Kentucky carried out its first and only
execution by lethal injection - - the execution of Edward Harper. The execution of Harper was
problematic. Defendants had difficulty accessing his veins and were prepared to resort to the
9 Exhibit 2 (Direct examination testimony of Professor Denno, on 4/18/05, in Baze v. Rees, at 23-24); exhibit 3 (Oklahoma’s 1978 lethal injection protocol). 10 Exhibit 2 (Direct examination testimony of Professor Denno, on 4/18/05, in Baze v. Rees, at 23-24); exhibit 3 (Oklahoma’s 1978 lethal injection protocol). 11 Exhibit 2 (Direct examination testimony of Professor Denno, on 4/18/05, in Baze v. Rees, at 25-28, 31-32). 12 Exhibit 4 (Excerpts from Direct examination testimony of former Warden Parker on 4/18/05, in Baze v. Rees, at 13233); exhibit 1 (Defendants’ Response to Open Records Request) (listing the chemicals used in Kentucky lethal
4

dangerous and invasive “cut down” procedure to start an I.V.13 There was no reason to suspect
Defendants would have difficulty inserting an I.V. into Harper. Yet, they had trouble. With
Moore, it is a different story.
It is difficult to start an I.V. in a person who, like Moore, has a history of intravenous drug
use.14 Due in part to drug use, Moore has severely compromised veins that have made it difficult on
numerous occasions for Defendants to draw his blood.15 Inserting an I.V. is more difficult than
drawing blood. Thus, Defendants are aware that they will have great difficulty inserting an I.V. into
Moore during his execution. Yet, Defendants have done nothing in anticipation of this problem.
Defendants plan to spend 60 minutes attempting to insert an I.V. into Moore.16 This violates
the Eighth Amendment because it will mutilate his body, will not increase the likelihood of starting
the I.V., and will cause unnecessary pain. Resorting to a “cut down” procedure is no better. It
causes excruciating pain and could result in Moore bleeding to death.17 All of this can be avoided
by having trained medical professionals start an I.V. through a percutaneous procedure if an I.V.
cannot be inserted within 20 minutes.18 In light of the likelihood that Defendants will have trouble
starting an I.V. in Moore, their failure to come up with a means of guaranteeing venous access
during his execution constitutes deliberate indifference. Moore should not have to undergo the
psychological turmoil of being on the execution gurney for an hour of needle insertion and perhaps
injections). 13 See Exhibit 5 (Post Mortem Examination of Edward Lee Harper); exhibit 6 (Lethal Injection I.V. Site Placement Form, showing where I.V.’s were inserted in Harper); exhibit 7 (James Prichard, Inmate is First in Kentucky to Die by Injection, ASSOCIATED PRESS NEWSWIRES, May 26, 1999); exhibit 8 (Testimony of Defendant John Rees on 4/18/05 in Baze v. Rees, at 195-96). 14 Exhibit 15 (Excerpts from direct examination testimony of Defendant Haas on 4/19/05 in Baze v. Rees, at 118). 15 Exhibit 9 (Excerpts from Brian Keith Moore’s prison medical records showing that Defendants have repeatedly had difficulty accessing his veins during medical procedures). 16 Exhibit 10 (Excerpt from direct examination testimony of former Warden Glenn Haeberlin on 4/19/05 in Baze v. Rees at 30-31); exhibit 8 (Testimony of Defendant John Rees on 4/18/05 in Baze v. Rees, at 195-96). 17 Exhibit 11 (Motion for Leave to File Brief and Brief of Alabama Physicians as Amici Curiae in Support of Petitioner in Nelson v. Campbell, at *2, *12).
5

being forced to endure this more than once.
If Defendants are able to insert an I.V. into Moore, they will inject him with the same
chemicals used to kill Harper: sodium thiopental, pancuronium bromide, and potassium chloride.19
None of these chemicals is a pain reliever.20 Sodium thiopental is an ultra short acting barbiturate
that renders a person unconscious for a limited period of time.21 Pancuronium bromide is a
neuromuscular blocking agent that paralyzes all voluntary muscles, thereby preventing a person
from expressing pain or consciousness.22 Potassium chloride is an extremely painful chemical that
causes convulsions and stops the heart from beating.23 As Defendants have previously
acknowledged, chemicals that pose less risk of pain and suffering could be used.24 And
pancuronium bromide, which has been banned for use in euthanizing pets,25 is not necessary to cause
death.26 Yet, Defendants’ intend to use these chemicals to kill Moore.
Despite the recognized risk of pain posed by these chemicals, Defendants refuse to take basic
steps to monitor for consciousness to ensure that Moore is unable to feel pain during his execution.27
Defendants’ continued use of these chemicals and their failure to monitor throughout the execution
for the ability to feel pain violates the evolving standards of decency and creates an unnecessary risk
of pain and suffering, in violation of the Eighth Amendment to the United States Constitution.
Defendants’ failure to make changes to their protocol during the past year to rectify these issues
18 Id. at *3. 19 Exhibit 1 (Defendants’ Response to Open Records Request) (listing the chemicals used in Kentucky lethal injections). 20 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 124, 126). 21 Id. at 118. 22 Id. at 125-27. 23 Id. at 131-33; exhibit 13 (Cross examination testimony of Mark Dershwitz on 5/2/05, in Baze v. Rees at 69). 24 Exhibit 13 (Cross examination testimony of Mark Dershwitz on 5/2/05, in Baze v. Rees at 70). 25 K.R.S. 312.181(17) and KAR 16:090 section (1); exhibit 23 2000 Report of the American Veterinary Medical Association Panel on Euthanasia, 218 Journal of the American Veterinary Medical Association, 669, 681 (2001). 26 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 133-34); exhibit 13 (Cross examination testimony of Mark Dershwitz on 5/2/05, in Baze v. Rees at 36). 27 Exhibit 10 (Excerpts from direct examination testimony of former Warden Glenn Haeberlin on 4/19/05 in Baze v. Rees
6

constitutes deliberate indifference to known medical needs, in violation of the Eighth Amendment. Finally, the effects of the first two lethal injection chemicals are reversible.28 If a stay of
execution is granted after the first or second chemical is administered, Defendants have an obligation to take affirmative steps to keep Moore alive.29 But Defendants do not have the necessary equipment to do so.30 Even worse, they know this and are doing nothing about it. Their reprehensible conduct in this regard evinces their deliberate indifference to known medical needs, and thus violates the Eighth Amendment to the United States Constitution.
Because Moore’s execution is imminent, all of these issues are ripe for adjudication, and because none of his claims impact the validity or duration of his confinement or sentence, his claims are cognizable in a 42. U.S.C. §1983 suit.
at 30-31). 28 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 142-44); exhibit 17 (Excerpts from direct examination testimony of Defendant Haas on 4/19/05 in Baze v. Rees, at 120); exhibit 16 (excerpt from Defendant Haas deposition in Baze v. Rees, at 33). 29 See In the Matter of Readoption with Amendments of Death Penalty Regulations, 842 A.2d 207, 211 (N.J.Super. 2004 30 Exhibit 13 (Cross examination testimony of Mark Dershwitz on 5/2/05, in Baze v. Rees at 74-78); see also, exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 151).
7

ARGUMENT
I. Lethal injection as it is currently carried out in Kentucky creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment to the United States Constitution.
A punishment is cruel and unusual in violation of the Eighth Amendment to the United
States Constitution if one of six criteria is satisfied: 1) the physical pain inflicted is excessive; 2) the
risk of pain is more than the Constitution tolerates; 3) the risk of pain and suffering is unnecessary in
light of available alternatives; 4) the means for carrying out the execution mutilates the body; 5) the
means for carrying out the execution cause unnecessary psychological suffering;31 or, 6) the means
for carrying out the execution violate the evolving standards of decency.
First, a punishment is cruel, in that it causes excessive pain, when it involves “something
more than the mere extinguishment of life,” such as “torture or a lingering death.”32 Degree of
suffering, not duration, is the important inquiry. Extreme pain during moments of consciousness
renders an aspect of an execution procedure unnecessarily cruel.33 Suffering for as little as twenty
seconds has been considered excessive.34 The excessive pain prohibition also addresses more than
the level of pain. It also bars pain that is “purposeless and needless,”35 or “without penological
justifications.”36
Second, courts applying the Eighth Amendment do not focus on ugly isolated instances.
Rather, they focus on procedures in general. The inquiry is whether the challenged procedure is
31 Unnecessary psychological suffering is not being raised as an issue with electrocution. 32 In re Kemmler, 136 U.S. 436, 447 (1890). 33 See Fierro v. Gomez, 865 F.Supp. 1387, 1410 (N.D. Cal. 1994), remanded on other grounds by, Gomez v. Fierro, 519 U.S. 918 (1996). 34 See Palmer v. Clarke, 293 F.Supp.2d 1011, 1064-66 (D. Neb. 2003), overruled on other grounds by, Palmer v. Clarke, 408 F.3d 423 (8th Cir. 2005); see also, Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994) (suggesting that one and a half minutes of suffering constitutes cruel and unusual punishment). 35 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947); accord Gregg v. Georgia, 428 U.S. 153, 173 (1976) (holding that the 8th Amendment prohibits punishments that “involve the unnecessary and wanton infliction of pain”). 36 Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg, 428 U.S. at 183; citing Estelle v. Gamble, 429 U.S. 97,
8

adequately designed and implemented to avoid undue risk of pain and suffering.37 An aspect of an
execution procedure that poses too great a risk of pain is unconstitutional regardless of whether
alternatives exist.
Third, the Eighth Amendment to the United States Constitution “forbids the infliction of
unnecessary pain in the execution of the death sentence.”38 In determining whether a punishment
constitutes “unnecessary” pain or creates an “unnecessary” risk of pain and suffering, a court must
judge the cruelty of the method of execution in light of currently available alternatives.39 Any risk
of pain is unnecessary if a viable alternative that poses less risk of pain and suffering exists.
Fourth, the cruel and unusual punishment clause prohibits mutilation, because “[t]he basic
premise underlying the Eighth Amendment is nothing less than the dignity of man.”40 “Civilized
standards . . . require a minimization of physical violence during execution irrespective of the pain
that such violence might inflict on the condemned. Similarly, basic notions of human dignity
command that the State minimize mutilation and distortion of the condemned prisoner’s body.”41
Fifth, the cruel and unusual punishment clause prohibits unnecessary psychological
suffering.42
Finally, the cruel and unusual punishment clause has an “expansive and vital character.”43
Thus the clause has been interpreted “in a flexible and dynamic manner,”44 consistent with “evolving
103 (1976). 37 Farmer v. Brennan, 511 U.S. 825, 846 (1994) (the inquiry is whether the procedures pose an “objectively intolerable risk of harm”); Helling v. McKinney, 509 U.S. 25, 33 (1993) (holding that the 8th Amendment analysis “requires a court to assess whether society considers the risk that the prisoner complains of” to be more than the Constitution tolerates); Campbell, 18 F.3d at 687 (holding that an 8th Amendment challenge to a method of execution must be considered in terms of the risk of pain). 38 Francis, 329 U.S. at 463; accord, Gregg, 428 U.S. at 173. 39 Furman v. Georgia, 408 U.S. 238, 430 (1970 (“[N]o court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives.”). 40 Trop v. Dulles, 356 U.S. 86, 100 (1958). 41 Glass, 471 U.S. at 1085 (Brennan, J. dissenting); see Wilkerson v. Utah, 99 U.S. 130, 135 (1878) (noting that disembowelment, public dissection, burning alive, and drawing and quartering are unnecessarily cruel).
9

standards of decency that mark the progress of a maturing society,”45 evaluated “in light of
contemporary human knowledge,”46 and “informed by objective factors.’”47
Objective factors include historical evidence, the consensus of the international community,
and legislative developments within the states.48 “The clearest and most reliable objective evidence
of contemporary values is the legislation enacted by the country’s legislatures.”49 But the number of
states enacting legislation is not as important as the “consistency of the direction of change.”50
When an aspect of a punishment violates the evolving standards of decency, it constitutes cruel and
unusual punishment.51
The following aspects of Defendants’ execution procedures violate one or more prongs of the
cruel and unusual punishment clause: 1) the means of obtaining venous access, including attempting
to insert an I.V. for up to 60 minutes, and the possible use of a “cut down” procedure if peripheral
access is not possible; 2) the means for delivering the lethal injection chemicals; 3) the chemicals
Defendants inject (or do not inject) during the lethal injection process; and, 4) the failure to properly
monitor for consciousness and the ability to feel pain prior to and after the injection of each
chemical.
42 Weems v. United States, 217 U.S. 349, 373 (1909). 43 Id. 44 Stanford v. Kentucky, 492 U.S. 361, 371 (1989), overruled on other grounds by, Roper v. Simmons, 125 S.Ct. 1183 (2005). 45 Simmons, 125 S.Ct. at 1190; Atkins v. Virginia, 536 U.S. 304, 312 (2002);Trop, 356 U.S. at 101; accord Penry v. Lynaugh, 492 U.S. 302, 331 (1989). 46 Robinson v. California, 370 U.S. 660, 666 (1962). 47 Atkins, 536 U.S. at 312-316; see also, Roper v. Simmons, 125 S.Ct. 1183 (2005); Enmund v. Florida, 458 U.S. 782, 786-88 (1982); Coker v. Georgia, 433 U.S. 584, 592 (1977). 48 Atkins, 536 U.S. at 312-16; see also, Simmons, 125 S.Ct. at 1198-1200 (acknowledging international law as reflective of the evolving standards of decency); Thompson v. Oklahoma, 487 U.S. 815, 830-31 (1988) (recognizing that international law is a legitimate factor for this Court to consider as an indicator of contemporary standards) 49 Atkins, 536 U.S. at 312 (quoting Penry, 492 U.S. at 331). 50 Id. at 315. 51 Simmons, 125 S.Ct. 1190, citing, Trop, 356 U.S. at 100-01.
10

A. Attempting to insert an I.V. for up to 60 minutes, the possibility that a “cut down procedure will be employed to obtain venous access during Moore’s execution, and Defendants’ failure to come up with a guaranteed method of inserting an I.V. into Moore creates an unnecessary risk of physical and psychological pain and suffering, in violation of the Eighth Amendment to the United States Constitution.
1. Facts relevant to this claim.
Obtaining venous access can be a complicated process, particularly when a person has
damaged or compromised veins. Moore’s years of intravenous drug use, diabetes, and poor medical
condition have damaged his veins. Documented evidence, including Moore’s prison medical
records, establishes that Moore has compromised veins, and that nurses at the Kentucky State
Penitentiary have had difficulty inserting needles to draw his blood during routine medical procedures.52 Thus, it is reasonable to conclude that it will be difficult if not impossible to gain peripheral access to Moore’s veins during his execution.53 Even if Defendants are able to insert an
I.V., Moore’s damaged veins make it likely that the chemicals will not remain in his vein, but
instead will leak into the surrounding tissue, causing him excruciating pain as he dies.
Defendants intend to attempt peripheral access of Moore’s veins until the I.V. has been inserted or 60 minutes have elapsed.54 Because of Moore’s compromised veins, it is likely that 60
minutes will elapse prior to successfully inserting an I.V. In this situation, Defendants have two
options - - calling off the execution or obtaining central venous access. In litigation involving Ralph
Baze and Thomas Bowling, Defendants admitted that they were not in a position to perform a “cut
52 Exhibit 9 (Excerpts from Moore’s prison medical records showing that Defendants have repeatedly had difficulty accessing his veins during medical procedures). 53 Peripheral access is the medical terminology for accessing a vein by inserting an I.V. in the arm. It is the routine method for obtaining venous access. 54 Exhibit 10 (Excerpt from direct examination testimony of former Warden Glenn Haeberlin on 4/19/05 in Baze v. Rees at 30-31); exhibit 8 (Testimony of Defendant John Rees on 4/18/05 in Baze v. Rees, at 195-96).
11

down” procedure,55 and that they would not perform one during Bowling’s execution. Instead, they
would ask Defendant Fletcher to reschedule the execution, where they would again spend 60 minutes attempting to obtain peripheral access to a vein.56 What happens if Defendant Fletcher does
not call off the execution or if Defendants are continuously unable to obtain peripheral access
remains unknown. Possibly Defendants will attempt to access a vein through a “cut down”
procedure, as they almost did when executing Edward Harper.
Defendants stuck Harper with a needle in at least three locations in attempting to insert the IV and catheter.57 They intended to insert a needle into each arm. But, the execution team couldn’t
find an acceptable vein in his left arm, so the needle was inserted into a vein on the top of his left hand.58 As a form Defendants filled out on inserting an I.V. into Harper shows, they would have performed a “cut down” procedure if necessary.59 Unlike Harper, Moore has compromised veins.
Thus, Defendants will likely not be as lucky when executing Moore, and thus will need to resort to
central
access to reach his veins.60 The two main methods of central venous access are the “cut down”
55 Exhibit 19 (Excerpt from deposition of former Warden Glenn Haeberlin on 4/19/05 in Baze v. Rees, at 41). 56 Exhibit 10 (Excerpt from direct examination testimony of former Warden Glenn Haeberlin on 4/19/05 in Baze v. Rees at 30-31); exhibit 8 (Testimony of Defendant John Rees on 4/18/05 in Baze v. Rees, at 195-96). 57 See Exhibit 5 (Post Mortem Examination of Edward Lee Harper); exhibit 6 (Lethal Injection I.V. Site Placement Form, showing where I.V.’s were inserted in Harper). 58 Exhibit 7 (James Prichard, Inmate is First in Kentucky to Die by Injection, ASSOCIATED PRESS NEWSWIRES, May 26, 1999); exhibit 8 (Testimony of Defendant John Rees on 4/18/05 in Baze v. Rees, at 195-96). 59 Exhibit 6 (Lethal Injection I.V. Site Placement Form, showing where I.V.’s were inserted in Harper). 60 “Obtaining central venous access is a complex medical procedure that involves serious risks and should only be performed by properly trained personnel.” Exhibit 7 (Motion for Leave to File Brief and Brief of Alabama Physicians as Amici Curiae in Support of Petitioner in Nelson v. Campbell, at *1) (hereinafter “Alabama Physicians.”). Central venous access is only attempted when a vein cannot be accessed by the ordinary method of inserting a needle, which is called “peripheral access.” Alabama Physicians at *6. Many physical conditions increase the likelihood that peripheral access will not be possible. These conditions include: 1) obesity; 2) usage of corticosteroids, which is used to treat arthritis and
12

procedure and the “percutaneous” procedure. A “cut down” procedure is an invasive medical procedure properly performed only under
deep sedation that includes the administration of potent intravenous analgesics (drugs that block pain) so the patient does not feel pain. Success in using the procedure depends on the “experience of the medical practitioner performing the procedure.”61 This procedure involves using a scalpel to make a series of surgical incisions through the skin, through the underlying connective tissue, through the underlying layers of fat, and through the underlying layers of muscle, until the region surrounding a large vein is reached. The incisions can be several inches deep, sometimes causing blood vessels to have to be closed either by the use of cautery or the use of ligatory suture.62 The need to close off blood vessels is not the only complication that may occur during a “cut down” procedure.
Some of the more serious complications include the excruciatingly painful and lifethreatening conditions of severe hemorrhage (with accompanying sense of cardiovascular collapse), pneumothorax (with accompanying sense of asphyxiation, chest pain, and terror), and cardiac dysrhythmia (abnormal electrical activity of the heart leading to shock with accompanying severe chest pain, nausea, vomiting, and sense of suffocation or asphyxia).63
The “cut down” procedure is rarely used in medical settings today because it has been supplanted by the percutaneous technique64 for obtaining venous access, which is less invasive, less
lupus; 3) diabetes treated with insulin; 4) edema; and, 5) a history of intravenous drug abuse. 61 Alabama Physicians at *2. 62 Alabama Physicians at *9. 63 Alabama Physicians at *2, *12. 64 Percutaneous technique is also referred to as percutaneous central line placement, percutaneous central access, and percutaneous central venous cannulation.
13

painful, faster, cheaper, and safer.65 This procedure involves “inserting a needle through the skin and into the vein, then passing a thin wire through the lumen of the needle, then removing the needle over the wire to leave the wire placed in the vein, and then finally advancing a thin flexible catheter over the wire into the vein.”66
Both the “cut down” and percutaneous procedures are complicated. Additional training beyond that for inserting an I.V. is necessary to perform a “cut down” procedure.67 In addition, many physicians do not have the experience and credentials to place a central catheter through either a “cut down” procedure or a “percutaneous technique,” or treat the complications that are associated with a “cut down” procedure.68 Performance of a “cut down” procedure can be achieved only by “thorough knowledge of the procedure and attention to its many details. . . . Detailed knowledge of anatomy is necessary to go deeply into an arm, leg, or chest to locate large, uncompromised veins.”69 Furthermore, experience and training is necessary to determine which vein to access.70 Accordingly, “cut down” procedures are not performed except in the most exceptional circumstances by physicians with specialized training in central venous access.71
In Alabama, physicians perform “cut down” procedures to access veins for executions. A physician was planning to perform a “cut down” procedure on David Nelson until the United States Supreme Court granted a stay of execution. But Kentucky law forbids a physician from performing a “cut down” procedure or any other form of central venous access if it involves accessing a vein for
65 Alabama Physicians at *3. 66 Alabama Physicians at *8-9. 67 Exhibit 22 (Excerpt from Deposition of Nurse Chanin Hiland in Baze v. Rees, at 10). 68 Alabama Physicians at *7. 69 Exhibit 18 (Brief of Laurie Dill, M.D. et al., as Amici Curiae in Support of Petitioner in Nelson v. Campbell at *4). 70 Id. 71 Id.
14

an execution.72 As Defendants conceded in 2004, they are not prepared to carry out a “cut down”
procedure.73 Thus, any “cut down” procedure or any other central venous access procedure utilized
to execute Moore will be performed by a non-physician member of the execution team who is not
specifically trained in central venous access.
2. Attempting to insert an I.V. for up to 60 minutes, resorting to a “cut down” procedure, and attempting to carry out Moore’s execution without a guaranteed way to insert an I.V. violates the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.
a. attempting to insert an I.V. for up to 60 minutes needlessly causes pain and mutilation of the body.
According to Dr. Heath, a nationally recognized anesthesiologist, attempting to insert an I.V.
for up to 60 minutes is useless and extremely painful, because it should only take two to three
minutes to insert an I.V.74 After 20 minutes of attempting to insert an I.V., the execution team will
have exhausted all available locations to insert a needle.75 Thus, attempting to insert a needle for
more than twenty minutes is useless as there is little to no chance that the execution team will be
able to insert an I.V. after 20 minutes,76 particularly in Moore’s case where due to his bad veins, it is
already known that Defendants are unlikely to be able to insert an I.V. through peripheral access.
According to Dr. Heath, suffering attempts to insert an I.V. for 60 minutes would be painful.77
Thus, the execution team is needlessly inflicting pain for at least 40 minutes of trying to insert an
72 Compare, Ala. Code section 15-18-82.1 (expressly stating that a physician, nurse, or pharmacist is not required to assist in any aspect of an execution); with, K.R.S. section 431.220 (prohibiting a physician from having any involvement in an execution other than to pronounce death. 73 Exhibit 19 (Excerpts from former Warden Haeberlin’s Deposition in Baze v. Rees, at 41). 74 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees, at 171-72). 75 Id. at 172-73, 176. 76 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 176). 77 Id. at 176.
15

I.V., in violation of the cruel and unusual punishment clause.78
Yet, the cruel and unusual punishment clause will be violated before the execution team
spends twenty minutes attempting to insert an I.V. Well before the twenty minutes have elapsed, the condemned inmate will be in “a lot of pain and discomfort.”79 Thus, requiring the execution team to
spend 60 minutes attempting to insert an I.V., which almost certainly will be necessary during Moore’s execution, constitutes torture in violation of the cruel and unusual punishment clause.80
b. Defendants’ use of the extremely painful “cut down” procedure to carry out Moore’s execution despite available alternatives creates an unnecessary risk of pain and suffering, in violation of the Eighth Amendment Cruel and Unusual Punishment Clause.
It is beyond dispute that a “cut down” procedure is an extremely painful invasive surgical
procedure for accessing a person’s veins. As previously discussed, it involves using a scalpel to cut
two inches into the body to reach a vein. Complications include hemorrhaging, cardiac arrest, and many other complications that can cause death.81 These complications and the underlying pain from
the incisions are exacerbated when the “cut down” procedure is performed by a person who is not
experienced in performing a central venous access procedure, as would be the case during lethal
injections in Kentucky. All of this could be avoided by using the safer, quicker, cheaper, and less painful means of obtaining central venous access - - the percutaneous procedure.82 In determining
whether the “cut down” procedure constitutes unnecessary pain and suffering, the procedure must be
analyzed in light of readily available alternatives that pose less risk of pain than a “cut down”
78 See Resweber, 329 U.S. at 463. 79 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 172). 80 See Kemmler, 136 U.S. at 447; Palmer, 293 F.Supp.2d at 1064-66 (twenty seconds of pain and suffering constitutes cruel and unusual punishment). 81 Alabama Physicians at *2, *12. 82 Id. at *3.
16

procedure.83 The percutaneous procedure is a viable and preferred alternative to the “cut down” procedure. Accordingly, Defendants use of a “cut down” procedure and their failure to ensure that central venous access will not be obtained through a “cut down” procedure constitutes cruel and unusual punishment.
c. in light of Moore’s compromised veins, attempting to insert an I.V. without a guaranteed means of accessing his veins constitutes unnecessary psychological suffering, in violation of the Eighth Amendment.
As discussed previously, Moore’s damaged veins will make it difficult if not impossible for Defendants to insert an I.V. through peripheral access during his execution, and even if they are able to do so, a reasonable probability exists that Moore’s damaged veins will prevent the chemicals from remaining in his vein throughout the execution. No one, including Moore, knows if Defendants will be successful at carrying out his execution when they strap him to the gurney. Defendants will have difficulty inserting the I.V., and Moore likely will be strapped to the gurney for 60 minutes as Defendants attempt to insert an I.V. Moore knows all of this. He also knows that Defendants could have an unqualified individual attempt a cut-down procedure. He also knows that after 60 minutes, Defendants could unstrap him from the gurney, send him back to his cell, and bring him back to the execution chamber on another day for another 60 minute attempt to insert an I.V. This vicious cycle could go on inevitably. The psychological suffering inflicted by lying strapped to a gurney for 60 minutes while Defendants attempt to insert an I.V. and not knowing if that will happen again is immense. Potentially, Moore will be fully prepared to die, only to possibly be removed from the gurney and brought back again, and again.
83 See Furman v. Georgia, 408 U.S. 238, 430 (1970) (Powell, J., dissenting) (“[N]o court would approve any method of
17

Defendants are fully responsible for this psychological suffering. Despite knowledge that
they likely will have trouble inserting an I.V. in Moore, they plan to reschedule the execution if they
are unable to insert an I.V. This is wholly unnecessary. They could prepare for an alternative
method of inserting an I.V., such as a percutaneous procedure. Their failure to do so creates a risk
that unnecessary psychological suffering will be inflicted on Moore, in violation of the Eighth
Amendment to the United States Constitution. Thus, Defendants should be prohibited from carrying
out Moore’s execution until they have adopted a procedure that guarantees they will be able to
access his veins during his execution.
B. Defendants’ means for delivering the lethal injection chemicals and the lack of training of the execution team create an unnecessary risk of pain and suffering in violation of the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.
The lethal injection chemicals are injected by a person with no training in injecting lethal injection chemicals.84 This causes numerous problems. As the package insert for sodium thiopental
states, it should be administered only “by individuals experienced in the conduct of intravenous anesthesia.”85 If the thiopental comes in contact with the pancuronium bromide, the thiopental will precipitate out of solution.86 Making matters worse, Moore’s bad veins create a strong likelihood
that the chemicals will not remain in his vein throughout the execution. Also, the chemicals are injected from a room outside the execution chamber.87 The executioner, a person with no training
implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives.”). 84 Exhibit 24 (Excerpt from direct examination testimony of former Warden Glenn Haeberlin on 4/19/05 in Baze v. Rees at 29). 85 Exhibit 20 (Package Insert for sodium thiopental). 86 Exhibit 21 (William D. Morton, M.D. and Jerrold Lerman, M.D., The Effect of Pancuronium on the Solubility of Aqueous Thiopentone, Canadian Journal of Anaesthesia (1987)); exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 121). 87 Exhibit 25 (Excerpt from direct examination testimony of former Warden Phil Parker on 4/18/05 in Baze v. Rees at 114, 116).
18

in mixing or injecting lethal injection chemicals,88 pushes a plunger that sends the chemicals into a tube that travels approximately five feet before reaching the condemned inmate.89 Such a tube would never be used in a hospital setting because the anesthesiologist needs to be right at the bedside in order to monitor to make sure the I.V. is flowing properly.90
The speed at which the chemicals are pushed through the plunger impacts how quickly the chemical will get into the vein, whether the force of the flow of the chemical will dislodge the I.V., and whether the chemicals will induce the desired effect.91 Yet, the executioner has no training in any of this.92 The use of an executioner untrained in injecting lethal injection chemicals and the risks associated with injecting chemicals through a tube located in another room approximately five feet away from the execution could be easily avoided if an individual trained in injecting the lethal injection chemicals injected the chemicals directly into the condemned inmate’s veins. Defendants’ failure to do so creates an unnecessary risk of pain and suffering, in violation of the Eighth Amendment to the United States Constitution.
C. Individually, and in combination, the chemicals used in Kentucky lethal injections violate the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.
88 Exhibit 24 (Excerpt from direct examination testimony of former Warden Glenn Haeberlin on 4/19/05 in Baze v. Rees at 29). 89 Id. at 28-29. 90 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 161-64). 91 Id. at 162; exhibit 20 (Package Insert for sodium thiopental). 92 Exhibit 24 (Excerpt from direct examination testimony of former Warden Glenn Haeberlin on 4/19/05 in Baze v. Rees at 29).
19

Defendants intend to kill Moore by poisoning him with a combination of three chemicals.93
Because Kentucky’s death penalty statute does not specify the lethal injection chemicals or the type
of chemicals to be administered, 94 Defendants are not mandated by statute to administer the current
chemical cocktail. Thus, each or all of the current chemicals could be eliminated from Defendants’
execution procedures and replaced with other chemicals without calling into question the validity of
Kentucky’s death penalty statutes or requiring Defendants to expend a large amount of money. The
three chemicals are sodium thiopental, pancuronium bromide, and potassium chloride.95 Each of
these chemicals can be fatal, but potassium chloride acts the quickest and thus causes death before
the other two chemicals can do so.96 Thus, potassium chloride is the only chemical necessary to
cause death in Defendants’ lethal injection process.97
Each of the three chemicals poses a risk of pain and suffering that could be easily avoided by
using alternative chemicals.98 Thus, the use of each of Kentucky’s lethal injection chemicals
violates the Eighth Amendment.
1. the failure to administer an analgesic
Analgesics are the class of drugs that relieve pain.99 In surgical procedures, a barbiturate is
administered to render a person unconscious and an analgesic to prevent a person from feeling
pain.100 None of the three chemicals Defendants inject during lethal injections relieves pain.101
Thus, administering the three lethal injection chemicals without first administering an analgesic
93 Exhibit 1 (Defendants’ Response to Open Records Request). 94 K.R.S. §431.220 (“death sentence shall be executed by a continuous intravenous injection of a substance or combination of substances sufficient to cause death”). 95 Exhibit 1 (Defendants’ Response to Open Records Request). 96 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 133-34, 142). 97 Id. 98 Id. at 161. 99 Id. at 99-100. 100 Id. at 100-102, 159. 101 Id. at 118.
20

creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment. 2. pancuronium bromide
Pancuronium bromide, the second chemical administered, is a long-acting neuromuscular blocking agent that paralyzes all voluntary muscles.102 It does not relieve pain or cause death during lethal injections.103 Rather, it makes people appear motionless and asleep even if they are feeling pain.104 Defendants’ use of pancuronium bromide serves no legitimate function during an execution, since potassium chloride causes death long before pancuronium bromide could do so.105 Instead, it prevents people from seeing if the inmate is in pain and causes the inmate to suffer the agony of suffocation. Thus, pancuronium bromide creates an unnecessary risk of pain and suffering and violates evolving standards of decency, because it is banned for the euthanasia of pets.
a. creating an unnecessary risk of pain and suffering Experiencing the effects of pancuronium bromide is “like being tied to a tree, having darts thrown at you, and feeling the pain without any ability to respond.”106 In the words of Carol Weihrer, who was conscious during a surgical procedure but paralyzed by a neuromuscular blocking agent,107 the pain is like the “absolute fires of hell.”108 The agony caused by pancuronium bromide
102 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 125-27); exhibit 14 (Direct examination testimony of Dr. Dennis Geiser by avowal on 4/20/05 in Baze v. Rees at 56-58). 103 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 124, 126); exhibit 14 (Direct examination testimony of Dr. Dennis Geiser by avowal on 4/20/05 in Baze v. Rees at 56-58). 104 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 125-27); exhibit 14 (Direct examination testimony of Dr. Dennis Geiser by avowal on 4/20/05 in Baze v. Rees at 56-58). 105 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 133-34, 142). 106 Exhibit 26 (Dr. Geiser Aff. in Abdur’Rahman v. Bell); accord, exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 107). 107 Exhibit 27 (Direct examination testimony of Carol Weihrer on 4/20/05 in Baze v. Rees at 25-28).
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and the inability to express the excruciating pain caused by pancuronium bromide and potassium chloride is unnecessary since potassium chloride (not pancuronium bromide) causes death.109 Thus, pancuronium bromide serves no legitimate purpose in lethal injections.110
Defendants may assert that pancuronium bromide is necessary because it collapses the lungs
and prevents the public from seeing convulsions caused by potassium chloride. Neither of these
purported purposes is legitimate. With potassium chloride causing death long before any of the other chemicals does so,111 there is no need to collapse the lungs. And, preventing the public from
seeing convulsions caused by potassium chloride is not a legitimate purpose recognized by the Eighth Amendment.112 Even if it is a legitimate purpose, the convulsions could be avoided by using a different chemical to stop the heart.113 Thus, the use of pancuronium bromide serves no purpose in
an execution, and creates an unnecessary risk of pain and suffering in violation of the Eighth
Amendment since a lethal injection can be carried out without using pancuronium bromide.
b. violating evolving standards of decency.
Recent research and legislation regarding animal euthanasia proves that the use of
pancuronium as a lethal injection chemical violates evolving standards of decency. Specifically,
using pancuronium to euthanize animals would violate Kentucky law, the law of 30 other states, and
national standards for veterinarians.
108 Id. at 27, 28. 109 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 133-34, 142). 110 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 133-34). 111 Id. at 133-34, 142. 112 See, e.g., California First Amendment Coalition v. Woodford, 2000 WL 33173913 (N.D. Ca. 2000) (recognizing that “the public’s perception of the amount of suffering endured by the condemned and the duration of the execution is necessary in determining whether a particular execution protocol is acceptable under the cruel and unusual punishment clause”) (exhibit 28); Abdur’Rahman v. Sundquist, No. 02-2236-III (Tenn. Chancery Ct. 2003) (noting that pancuronium bromide serves no legitimate purpose in a lethal injection where potassium chloride is administered) (exhibit 29). 113 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 161); exhibit 13 (Cross
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Currently, Kentucky and 30 other states have passed laws that either expressly or implicitly
preclude the use of a neuromuscular blocking agent in euthanizing animals.114 In 2000, the leading
professional association of veterinarians, the American Veterinary Medical Association,
promulgated guidelines for euthanasia that explicitly forbid the use of a neuromuscular blocking
agent during euthanasia when a sedative (anesthetic or barbiturate) has been administered.115 Since
legislatures began prohibiting using neuromuscular blocking agents with sedatives, no legislature or
other governing body has expressly condoned this practice or repealed statutes forbidding it.
Given the consistency in the regulations, and the number of states disallowing this chemical
combination for euthanasia of animals, using pancuronium bromide in conjunction with thiopental is
outside the bounds of evolving standards of decency. Human beings are animals and should be
treated at least as well as other animals. The recent alterations of euthanasia protocols for animals
underscore the inhumanity of using pavulon to execute human beings. A euthanasia practice widely
considered unfit for a dog is certainly unfit for humans.
c. Moore has a right for the public to see the effects of the chemicals
The evolving standards of decency test includes an analysis of legislative trends.116 A
legislature is supposed to represent the interests of the people. Thus, for the public to determine if a
examination testimony of Dr. Mark Dershwitz on 5/2/05 in Baze v. Rees at 70). 114 Fla. Stat. §§ 828.058 and 828.065; Ga. Code Ann. § 4-11-5.1; Me.Rev.Stat. Ann. tit. 17, § 1044; Md.Code Ann., Criminal Law, § 10-611; Mass.Gen.Laws § 140:151A; N.J.S.A. 4:22-19.3; N.Y.Agric. & Mkts § 374; Okla. Stat., Tit. 4, § 501; and, Tenn.Code Ann. § 44-17-303. In 1998, Kentucky became one of many states that implicitly banned such practices. K.R.S. section 312.181 (17) and KAR 16:090 section 5(1). The other states that implicitly ban using a sedative in conjunction with a neuromuscular blocking agent for euthanasia are: Ala. Code 34-29-131; Alaska Stat. 08.02.050; Ariz. Rev. Stat. 18-9-201; Conn. Gen.Stat. § 22-344a; Del.Code Ann., Tit. 3, § 8001; 510 Ill. Comp. Stat., ch. 70, § 2.09; Kan. Stat. Ann. § 47-1718(a); La. Rev. Stat. Ann. § 3:2465; Mich. Comp. Laws 333.7333; Mo. Rev. Stat. 578.005(7); Neb. Rev. Stat. 54-2503; Nev. Rev. Stat. Ann. 638.005; Ohio Rev. Code Ann. 4729.532; Or. Rev. Stat. 686.040(6); R.I. Gen. Laws § 4-1-34; S.C. Code Ann. § 47-3-420; Tex. Health & Safety Code, § 821.052(a); W. Va. Code 30-10A-8; Wyo. Stat. Ann. 33-30-216. 115 Exhibit 23 (2000 Report of the American Veterinary Medical Association Panel on Euthanasia, 218 Journal of the American Veterinary Medical Association, 669, 681 (2001)). 116 See, e.g., Atkins, 536 U.S. at 312 (quoting Penry, 492 U.S. at 331).
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portion of a method of execution is cruel and unusual punishment, the public must see what is really happening to the condemned inmate. Because cruel and unusual punishment cannot be inflicted on Moore, he has a constitutional right for the public to see all evidence that could impact their decision on whether a portion of punishment violates evolving standards of decency. By preventing anyone from seeing if Moore will be in pain during his execution and any convulsions caused by potassium chloride, the use of pancuronium bromide in his execution violates the Eighth Amendment to the United States Constitution and due process
d. conclusion Our society has come to believe that execution by lethal injection is a painless process, where the inmate just goes to sleep and never wakes up. Pancuronium bromide makes it look that way whether it is true or not. By paralyzing all voluntary muscles, pancuronium bromide prevents the condemned inmate from alerting anyone to the fact that he is suffering pain. It is for this reason that a supermajority of states and the American Veterinary Medical Association prohibit the use of pancuronium bromide in conjunction with a barbiturate to euthanize an animal. The same standard should apply when executing humans. Pancuronium bromide is not necessary to cause death and thus serves no role in the lethal injection process. Instead, it creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment. Thus, pancuronium bromide must be removed from the chemical cocktail used in lethal injections.
3. potassium chloride. Potassium chloride, the final chemical, is an extremely painful chemical that causes a burning sensation throughout the body as it causes convulsions and stops the heart, resulting in
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death.117 The pain is so severe that the American Veterinary Association states that the
“administration of potassium chloride intravenously requires animals to be in a surgical plane of
anesthesia characterized by loss of consciousness, loss of reflex muscles, and loss of response to
noxious stimuli.”118 The excruciating pain (and the convulsions) caused by potassium chloride can
be avoided by replacing potassium chloride with “many non-painful ways of stopping the heart.”119
Thus, the risk of pain from potassium chloride is unnecessary, making Defendants’ continued use of
potassium chloride as a lethal injection chemical violative of the cruel and unusual punishment
clause of the Eighth Amendment.
4. sodium thiopental
Sodium thiopental is an ultra-short acting barbiturate that must be mixed from a solid to a
liquid before use.120 It is administered in hospital settings to render patients unconscious prior to
giving them a longer-acting barbiturate.121 Since thiopental was first used in lethal injections, it has
been replaced in the medical setting by propafol, a safer and easier drug to administer.122
In Defendants’ execution procedure, sodium thiopental is the first chemical injected.123 It is
intended to prevent the inmate from feeling pain. But thiopental has little to no pain relieving
properties and begins to wear off in a matter of minutes.124 Thus, there is a substantial risk that
117 Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 307 (Tenn. 2005) (recognizing that potassium chloride will cause extreme pain and suffering in a person who is able to feel pain); Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 118, 132-33); exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 69. 118 Exhibit 23 (2000 Report of the American Veterinary Medical Association Panel on Euthanasia, 218 Journal of the American Veterinary Medical Association, 669, 681 (2001). 119 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 118); exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 70). 120 Exhibit 20 (Package insert on sodium thiopental); exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 121). 121 Id. at 120-21. 122 Id. at 121. 123 Exhibit 1 (Defendants’ Response to Open Records Request). 124 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 124).
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thiopental will not serve its desired purpose, making it likely that a condemned inmate could feel
pain during execution.
Ensuring that a sufficient amount of thiopental is administered to prevent a person from
feeling pain is a complicated process. For instance, if the wrong size catheter is used, the thiopental
will go into a different part of the body, thereby not rendering the inmate unconscious but causing
excruciating pain.125
In addition, “individual response to the drug is so varied that there can be no fixed
dosage.”126 Thus, the dosage of thiopental has to be measured with precision.127 The amount of
thiopental to be administered depends on the size of the inmate and the concentration of thiopental
administered. “Dose is usually proportional to body weight and obese patients require a larger dose
than relatively lean patients of the same weight.”128 “The volume of dilutent for chemicals should be
1) at least large enough so that all the chemicals will be dissolved, and 2) sufficiently dilute so that it
will not irritate the inmate’s vein and cause the inmate pain.”129 “Even a slight error in dosage or
administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or
her own slow, lingering asphyxiation.”130 Defendants take none of these variables into
consideration. Instead, they administer the same dose of thiopental to all inmates and leave the
administration of the lethal injection chemicals to an executioner with no training in injecting or
preparing the lethal injection chemicals.131 As a result, there is an unnecessary risk that the lethal
125 See, e.g., id. at 162. 126 Exhibit 20 (Package insert on sodium thiopental). 127 Id. 128 Id.; exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 115-16). 129 Deborah Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J. 106, 119 (2002); exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 169-71). 130 Chaney v. Heckler, 718 F.2d 1174, 1191 (D.C. Cir. 1983). 131 Exhibit 1 (Defendants’ Response to Open Records Request) (listing the dose of sodium thiopental they will inject into Moore); exhibit 24 (Excerpt from direct examination testimony of former Warden Glenn Haeberlin on 4/19/05 in Baze v.
26

injection chemicals are not reaching the condemned inmate’s bloodstream in an amount sufficient to
prevent the inmate from feeling pain.
An individual who is unconscious can wake up from painful stimuli.132 Thus, a larger
concentration of thiopental is necessary to prevent a person from feeling pain than is necessary to
prevent a person simply from moving or responding to verbal stimuli.133 According to the standard
text on toxic drugs, at least 39-42 mg/L of thiopental in the bloodstream is necessary to prevent a
person from responding to painful stimuli.134 A wealth of data analyzing concentrations of
thiopental in executed inmates and how long it takes condemned inmates to stop breathing
establishes that, in an alarming number of executions, not enough thiopental is reaching the inmate
to prevent the inmate from feeling the pain and suffering caused by pancuronium bromide and
potassium chloride.
Toxicology results of executed inmates in Arizona, North Carolina, and South Carolina have
revealed that the levels of thiopental in the blood of executed inmates are frequently far lower than
the 39-42 mg/L required to guarantee that a person will not feel pain.135 Thus, it appears that many
Rees at 29). 132 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 98-99). 133 Id. at 99. 134 Exhibit 30 (Excerpt from Randall C. Baselt, Ph.D., Disposition of Toxic Drugs and Chemicals in Man (7th ed.)). 135 Exhibit 31 (Toxicology Reports on inmates executed in Arizona: John Brewer, finding 2.7 mg/L of thiopental in his bloodstream and noting that 2.7 mg/L is below the therapeutic range; James Clark, finding 25 mg/L of thiopental in his bloodstream; Jimmie Jeffers, finding 8.2 mg/L of thiopental in his bloodstream; Jose Jesus Ceja, , finding 8.8 mg/L of thiopental in his bloodstream; Ignacio Ortiz, finding 7.8 mg/L of thiopental in his bloodstream; Anthony Chaney, finding 2.8 mg/L of thiopental in his bloodstream, and noting that 2.8 mg/L is below the therapeutic range); exhibit 32 (Toxicology Reports on inmates executed in North Carolina: Arthur Martin Boyd, Jr., finding 2.6 mg/L of thiopental in his bloodstream; Michael Earl Sexton, finding 3.7 mg/L of thiopental in his bloodstream; Clifton Allen White, executed in North Carolina, finding 17 mg/L of thiopental in his bloodstream; Ronald Wayne Frye, finding 8.2 mg/L of thiopental in his bloodstream; David Junior Ward, executed in North Carolina, finding 17 mg/L of thiopental in his bloodstream; Desmond Keith Carter, finding trace levels of thiopental in his bloodstream); exhibit 33 (Toxicology Reports on inmates executed in South Carolina: Sylvester Lewis Adams, finding 32 mg/L of thiopental in his bloodstream; Fred Kornahrenes, finding 23 mg/L of thiopental in his bloodstream; Michael Torrence, finding 13.43 mg/L of thiopental in his bloodstream; Cecil D. Lucas, finding 23.09 mg/L of thiopental in his bloodstream; Frank Middleton, finding 33 mg/L of thiopental in his bloodstream; Michael Elkins, finding 27 mg/L of thiopental in his bloodstream; Earl Matthews, Jr., finding 28 mg/L of thiopental in his bloodstream; John Arnold, finding 16 mg/L of thiopental in his bloodstream; John
27

condemned inmates were in pain during their execution, including Eddie Harper, the one inmate
executed by lethal injection in Kentucky. Toxicology results from Harper show that he had between
3 and 6.5 mg/L of thiopental in his body136 - - well below the minimum level of thiopental necessary
to prevent a person from feeling pain.
Recently disclosed information in other states suggests that inmates are likely to be
conscious during their execution. With four executions carried out in North Carolina between
November 2005 and January 20, 2006, the North Carolina Department obtained and had tested blood
from the condemned inmates for the purpose of determining whether the condemned inmate was
receiving sufficient anesthesia prior to the administration of pancuronium bromide and potassium
chloride.137 The results of the toxicology analysis show that the last four inmates executed in North
Carolina were likely in pain during their execution.
Toxicology results of blood samples taken from the left femoral vessel of Steven Van
McHone indicate sodium thiopental levels of 1.5 mg/L and 21 mg/L.138 Similar test results from
Elias Syriani show 4.4 mg/L, 11 mg/L and 12 mg/L of thiopental.139 With Kenneth Boyd, the
toxicology results show 11 mg/L and 29 mg/L.140 And, with Perrie Dyon Simpson, the toxicology
Plath, finding 28 mg/L of thiopental in his bloodstream; Sammy Roberts, finding 19 mg/L of thiopental in his bloodstream; J.D. Gleaton, finding 31 mg/L of thiopental in his bloodstream; Larry Gilbert, finding 7.1 mg/L of thiopental in his bloodstream; Louis Truesdale, Jr., finding 7.5 mg/L of thiopental in his bloodstream; Andrew Smith, finding 21 mg/L of thiopental in his bloodstream; Ronald Howard, finding sample unsuitable for quantitation; Joe Atkins, finding 12 mg/L of thiopental in his bloodstream; Leroy Drayton, finding 9.9 mg/L of thiopental in his bloodstream; David Rocheville, finding 17 mg/L of thiopental in his bloodstream; Kevin Young, finding 3.4 mg/L of thiopental in his bloodstream; Richard Johnson, finding 7.8 mg/L of thiopental in his bloodstream; Anthony Green, finding 19 mg/L of thiopental in his bloodstream; and, Michael Passaro, finding 6.1 mg/L of thiopental). 136 Exhibit 34 (Toxicology results on Edward Lee Harper); exhibit 35 (Direct examination testimony of Michael Ward on 4/18/05 in Baze v. Rees at 181). 137 Exhibit 36 (Brown v. Beck, No. 5:06-ct-03018-H (E.D. N.C. 2006), Order dated April 7, 2006) (noting that blood was drawn from the last four inmates executed in North Carolina at the order of the North Carolina Department of Corrections for the purpose of determining whether the inmates were able to feel pain during their executions). 138 Exhibit 37 (Toxicology results on inmates executed in North Carolina between November 2005 and January 20, 2006). 139 Id. 140 Id.
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results show 8.7 mg/L, 12 mg/L and 42 mg/L.141 As these toxicology results and those obtained
before it show, the use of sodium thiopental during a lethal injection creates an unnecessary risk that
the condemned inmate will feel pain during the lethal injection, because Defendants are unable to
ensure that enough sodium thiopental (39-42 mg/L) to prevent the inmate from feeling pain is in the
inmate’s body throughout the execution process.
Similarly, evidence recently obtained concerning lethal injections in California show that at
least the last two men executed in California were likely conscious and feeling pain while
executed.142 Although the five gram dose of sodium thiopental used in California should cause
respiration to cease within a minute,143 California death-sentenced inmates were breathing for up to
twelve minutes after the injection of sodium thiopental.144 This evidence prompted a federal district
court judge in California to prohibit a lethal injection unless trained medical personnel confirmed
that the condemned inmate could not feel pain throughout the execution or they administered
pentobarbital as the only chemical.145
141 Id. 142 Experts disagree on how to read postmortem blood samples, which are subject to a phenomenon called “postmortem redistribution.” But, recent evidence from California suggests strongly that the defense experts are correct, and that, for whatever reason, not enough sodium thiopental is getting into the prisoners’ bloodstream to stop them from feeling excruciating pain. In addition, the results from the blood drawn from recently executed inmates in North Carolina for the purpose of determining whether the inmates were able to feel pain during their executions support Defendants’ claim that administering sodium thiopental creates an unnecessary risk of pain and suffering. 143 Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th Cir. 2004) (quoting Declaration of Mark Dershwitz). 144 Exhibit 38 (Execution Logs on inmates executed in California: Jaturun Siripongs, respiration did not cease until five minutes after the injection of sodium thiopental; Manuel Babbitt, respiration did not cease until five minutes after the injection of sodium thiopental; Darrel Keith Rich, respiration did not cease until two minutes after the injection of sodium thiopental; Stephen Wayne Anderson, respiration did not cease until five minutes after the injection of sodium thiopental; Stanley Tookie Williams, respiration did not cease until between six and twelve minutes after the injection of sodium thiopental; and, Clarence Ray Allen, respiration did not cease until nine minutes after sodium thiopental after the injection of sodium thiopental); exhibit 39 (Morales v. Hickman, No. 5:06-cv-00219-JF (N.D. Cal. 2006)) (Order, dated Feb. 14, 2006, Denying Conditionally Plaintiff’s Motion for Preliminary Injunction) (discussing the length of time executed death row inmates in California were observed breathing after the injection of sodium thiopental). Similarly, Edward Harper did not die until five minutes after the sodium thiopental was injected and two minutes after the pancuronium bromide was injected. See exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 138-42). 145 Exhibit 39 (Morales v. Hickman, No. 5:06-cv-00219-JF (N.D. Cal. 2006)) (Order, dated Feb. 14, 2006, Denying Conditionally Plaintiff’s Motion for Preliminary Injunction).
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And, in Delaware, on November 4, 2005, condemned inmate Brian Steckel spoke for nearly 12 minutes after the injection of sodium thiopental and stated that he did not think so much time would elapse before the chemicals took effect, before finally succumbing to the sodium thiopental and beginning to shake violently.146 Obviously, he did not stop breathing within one minute of the injection of sodium thiopental.
Defendants are likely to dispute the conclusions resulting from this evidence. In doing so, they will probably rely on Dr. Dershwitz, an anesthesiologist, who has testified in previous lethal injection litigation in Kentucky and numerous other states. Dr. Dershwitz’s credibility is currently
suspect as a result of misrepresentations he recently made, and his hypotheses that have been proven to be incorrect.
For instance, in previous litigation in Kentucky, Dershwitz testified that the BIS Monitor would be useless for monitoring for consciousness because the large dose of potassium chloride would cause the monitor to malfunction and go blank.147 Yet, last week, Dershwitz presented an affidavit in North Carolina that said that a BIS Monitor would be able to determine if an inmate was able to feel pain during an execution.148 In his North Carolina affidavit, he made no reference to his contradictory testimony in Kentucky or that the potassium chloride would render the BIS Monitor useless.149 Dershwitz’s half-truths and misleading testimony lead to one conclusion - - that Dershwitz is not credible when it comes to issues involving lethal injection.
Further evidence of Dershwitz’s lack of expertise and willingness to say whatever is
146 Exhibit 40 (Sean O’Sullivan, Steckel’s Execution Didn’t Go Quickly, The News Journal—Delaware Online, November 5, 2005)). 147 Exhibit 41 (Excerpt from direct examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 29-31). 148 Exhibit 42 (Third Affidavit of Dr. Dershwitz, in Brown v. Beck, No. 5:06-ct-03018-H (E.D. N.C. 2006)). 149 Id.
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necessary to increase the likelihood that an execution will take place is shown by the California
execution data discussed previously. According to Dershwitz, the injection of thiopental should stop
an inmate’s breathing within about a minute.150 But the previously discussed data from California
proves that this is not the case.151
Dr. Dershwitz’s conclusions about consciousness after an injection of three grams of sodium
thiopental are also problematic. Although Dershwitz has no expertise in the effects of massive doses
of a chemical and has conducted no studies on sodium thiopental,152 Dershwitz claims that 50% of
the population will be rendered unconscious by 7 mg/L of sodium thiopental.153 Applying this
prediction to toxicology results from numerous inmates executed by lethal injection shows that many
inmates were likely conscious during their execution and that some of these inmates had a likelihood
of consciousness of 90% or more.154
Yet, Dershwitz maintains that the dose of sodium thiopental administered during Kentucky
lethal injections is so large that it will render an inmate unconscious for hours. This conclusion is
faulty because Dershwitz: 1) assumes that the full dose of thiopental enters the bloodstream and
fails to take into consideration numerous variables, including the concentration of thiopental
administered; 2) bases his conclusion on the amount of thiopental necessary to prevent a person
from responding to verbal commands, rather than the higher amount of thiopental necessary to
150 Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th Cir. 2004) (quoting Declaration of Mark Dershwitz). 151 Exhibit 38 (Execution Logs on inmates executed in California: Jaturun Siripongs, respiration did not cease until five minutes after the injection of sodium thiopental; Manuel Babbitt, respiration did not cease until five minutes after the injection of sodium thiopental; Darrel Keith Rich, respiration did not cease until two minutes after the injection of sodium thiopental; Stephen Wayne Anderson, respiration did not cease until five minutes after the injection of sodium thiopental; Stanley Tookie Williams, respiration did not cease until between six and twelve minutes after the injection of sodium thiopental; and, Clarence Ray Allen, respiration did not cease until nine minutes after sodium thiopental after the injection of sodium thiopental); exhibit 39 (Morales v. Hickman, No. 5:06-cv-00219-JF (N.D. Cal. 2006)) (Order, dated Feb. 14, 2006, Denying Conditionally Plaintiff’s Motion for Preliminary Injunction) (discussing the length of time executed death row inmates in California were observed breathing after the injection of sodium thiopental). 152 Exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 53-54). 153 Id. at 55-56.
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prevent a person from feeling pain;155 and, 3) bases his conclusions on studies involving the administering thiopental in conjunction with another barbiturate.156 Thus, this Court should
disregard the findings of Dr. Dershwitz.
In addition, Dr. Dershwitz’s opinion on how much sodium thiopental will be in the body
differs depending on which state he is testifying in and what inconsistency in his testimony has been
pointed out to him since he last testified. According to Dr. Dershwitz’s most recent testimony, in
North Carolina, 40 mg/L of thiopental should be in the body ten minutes after an injection of three grams of thiopental.157 This testimony is a bit odd since, in June of 2004, Dershwitz testified, in
Maryland, that 30.15 mg/L of thiopental should be in the body five minutes after an injection of
three grams of thiopental, and, as he has stated in numerous states, the amount of thiopental in the body should decrease over time.158 In prior Kentucky litigation, Dershwitz testified that 65 mg/L of thiopental should be in the body after Kentucky injects three grams of sodium thiopental,159 and that the concentration of thiopental would be much lower if the inmate was obese,160 as is true with
Moore. Dershwitz’s numbers resulting from his fuzzy mathematical equations are so all over the
place that it is as if he is just pulling numbers out of a hat. By comparing his testimony in Maryland
to North Carolina, it becomes clear that his charts show that thiopental levels increase over time,
despite his repeated testimony to the opposite. One of two things must be clear, either Dershwitz
changes his calculations to explain inconsistencies in his testimony, or Dershwitz does not know
what he is doing. Applying Dershwitz’s calculations to actual executions shows this.
154 Exhibit 43 (Graphs showing probability of consciousness based on Dershwitz’s predictions). 155 Exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 51-52). 156 Id. at 80-82. 157 Exhibit 36 (Brown v. Beck, No. 5:06-ct-03018-H (E.D. N.C. 2006), Order dated April 7, 2006). 158 Exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 91-97); exhibit 44 (Dershwitz Affidavit in Oken v. Sizer). 159 Exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 91).
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In litigation in Maryland involving Steven Oken, Dershwitz testified that 30.15 mg/L of thiopental should be in Oken’s veins after five minutes.161 Even if Dershwitz was right, 30.15 mg/L
of thiopental was not enough thiopental to ensure that Oken did not feel pain. It is not close to the 39-42 mg/L that is needed.162 Yet, when Maryland conducted toxicology results to prove
Dershwitz’s contentions, the toxicology results did the opposite. Oken only had 10 mg/L of thiopental in his body.163 As discussed above, similar results recently caused a federal judge in
North Carolina to stop an execution unless the department of corrections could prove that trained
medical personnel would be present to ensure that the inmate would be unable to feel pain prior to and at the time of the administration of pancuronium bromide and potassium chloride.164 Prior
toxicology results in North Carolina, South Carolina, and Kentucky also support the conclusion that
not enough thiopental is reaching the condemned inmate’s body. Thus, Dershwitz’s conclusions are
unreliable. Contrary to his contentions, by injecting sodium thiopental under the current execution
procedures, Defendants are creating an unnecessary risk of pain and suffering.
Regardless of the likelihood of the risk that a condemned inmate will be able to feel pain
during an execution, there is no basis to subject an inmate to this risk by injecting sodium thiopental.
Thiopental could be replaced by pentobarbital, a long acting barbiturate that is used almost exclusively in Oregon in assisted suicide cases.165 Because the risk of pain and suffering associated
with the use of thiopental is easily avoidable, it is unnecessary and thus violates the cruel and
unusual punishment clause of the Eighth Amendment.
160 Id. at 93-94. 161 Exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 91-95); exhibit 44 (Dershwitz Affidavit in Oken v. Sizer). 162 Exhibit 30 (Excerpt from Randall C. Baselt, Ph.D., Disposition of Toxic Drugs and Chemicals in Man (7th ed.)). 163 Evans v. Saar, 412 F.Supp.2d 519, 525 (D. Md. 2006). 164 Exhibit 36 (Brown v. Beck, No. 5:06-ct-03018-H (E.D. N.C. 2006), Order dated April 7, 2006). 165 2006 Annual Report under the Oregon Death With Dignity Act (documenting the number of people who died by
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5. the risk of pain and suffering from each of the chemicals could be avoided
Regardless of how big the risk is that Moore, or any other death-sentenced inmate, will feel
pain during his execution, the risk is unnecessary and must be avoided. Numerous options are
available. Defendants could replace potassium chloride with a less painful chemical that will stop the heart.166 They could eliminate pancuronium bromide from the chemical cocktail. They could
replace sodium thiopental with a long acting barbiturate. Or, they could use pentobarbital as the
only lethal injection chemical. With all these options available, the risk associated with the
chemicals Defendants intend to use to kill Moore are unnecessary. Because the risks are
unnecessary, they violate the Eighth Amendment cruel and unusual punishment clause. Thus,
Defendants should be prohibited from executing Moore until they decide to use different chemicals
to carry out the lawfully imposed sentence of death.
D. The lack of monitoring to ensure that a condemned inmate is unconscious from the time period just prior to injecting pancuronium until death creates an unnecessary risk of pain and suffering in violation of the cruel and unusual punishment clause.
Sometimes a paralytic agent must be administered for a particular type of surgical setting, like eye surgery or brain surgery.167 In these situations, the medical profession takes additional
precautions to monitor for consciousness throughout the surgical procedure to avoid the nightmarish possibility that a patient would wake and feel pain, but, due to paralysis, be unable to express it.168
Many of these precautions should be used to monitor for consciousness during an execution. The
Eighth Amendment demands nothing less.
An individual injected with sodium thiopental is capable of feeling pain if the inmate regains
assisted in Oregon, the chemicals that were ingested, and any side effects that were suffered). 166 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 118); exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 70). 167 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 106).
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adequate consciousness during the execution, if the thiopental begins to wear off, or if the level of
thiopental in the body is below the amount necessary to maintain general anesthesia (level of
consciousness that prevents a person from feeling pain).169 Normally, this would be easy to detect
because people react to pain by moving or crying out.170 But, as previously discussed, the second
chemical administered during lethal injections, pancuronium bromide, paralyzes all voluntary
muscles.171 Thus, if pancuronium bromide is used in a lethal injection, as it is in Kentucky,
alternative methods of monitoring for the ability to feel pain are necessary.172
Prior to injecting pancuronium bromide, checking for consciousness can be done by checking
the corneal reflexes, or pinching a person to see if the person responds.173 But these tests do not
work once a person has been injected with a paralytic agent, such as pancuronium bromide.174 At
this point, the following equipment would aid in monitoring consciousness after pancuronium
bromide has been injected: blood pressure monitoring; EKG machine (if located in the execution
chamber and being read throughout the execution not just to determine death); and an EEG
monitor.175 Defendants use none of this equipment to monitor for consciousness,176 nor do they have
anyone adequately trained in monitoring for consciousness, with or without the listed equipment, at
the execution chamber. Defendants’ failure to monitor for consciousness, particularly since they
168 Id. at 106-112. 169 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 104, 127, 143). 170 Id. at 116, 124. 171 Id. at 125. 172 Id. at 108, 128. 173 Exhibit 14 (Direct examination testimony of Dr. Geiser by avowal on 4/20/05 in Baze v. Rees at 61); exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 47). 174 Exhibit 14 (Direct examination testimony of Dr. Geiser by avowal on 4/20/05 in Baze v. Rees at 61); exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 107-11). 175 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 107-11). 176 See, e.g., exhibit 10 (Excerpts from direct examination testimony of former Warden Haeberlin on 4/19/95 in Baze v. Rees, at 30-31; exhibit 52 (Cross examination of Defendant Rees on 5/2/05 in Baze v. Rees at 124).
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have decided to administer an extremely painful chemical (potassium chloride), creates a risk of pain and suffering that is completely unnecessary, because it could be alleviated by using less painful chemicals and by having adequately trained personnel properly monitor for the ability to feel pain.
II. If a stay of execution is granted after the first or second lethal injection chemical is administered, Defendants have an affirmative duty to render adequate medical care to reverse the effects of the chemicals. Defendants’ failure to have the necessary equipment and trained medical personnel at the execution chamber to render lifemaintaining medical treatment if such a stay is granted deprives Moore of due process. Once a stay of execution is granted, the execution is no longer sanctioned. This is true even
if the stay is granted (or notice of the stay is received at the prison) after the first or second chemical is administered.177 In essence, the injection of the first lethal injection chemical would have been in error. Thus, the stay creates an affirmative obligation under due process and contemporary standards of decency and morality to take measures to give the inmate a chance to continue living.178
If the proper equipment is on hand, medical personnel trained in reversing the effects of sodium thiopental and pancuronium bromide, and certified in cardiac life support - - not EMT’s, phlebotomists, pyschiatrists, or doctors of general medicine - - would have relatively little difficulty maintaining life after the first two chemicals have been injected.179 Because the effects of sodium thiopental and pancuronium bromide are reversible,180 Defendants’ failure to have the necessary
177 See In the Matter of Readoption with Amendments of Death Penalty Regulations, 842 A.2d 207, 211 (N.J.Super. 2004). 178 See In the Matter of Readoption with Amendments of Death Penalty Regulations, 842 A.2d at 211. 179 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 142-44). 180 Id.; exhibit 17 (Excerpts from direct examination testimony of Defendant Haas on 4/19/05 in Baze v. Rees, at 120);
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equipment and adequately trained personnel to reverse the effects of these chemicals violates due process and fundamental fairness.181
After litigation began on behalf of Ralph Baze and Thomas Bowling, Defendants took some steps to prepare for the need to reverse the effects of the lethal injection chemicals. They added a crash cart to their execution protocol. That step, however, is wholly inadequate. A crash cart is only
as good as the equipment on the crash cart and the medical training of the people operating that equipment.
To determine what to have on the crash cart, counsel for Defendants prepared a list of equipment necessary to reverse the lethal injection chemicals. But as Dr. Heath and Dr. Dershwitz testified in Baze, the document prepared by counsel for Defendants does not come close to being comprehensive enough for someone to use in maintaining life after the first two chemicals have been injected.182 After questioning about a crash cart began in Baze, Defendants produced an inventory of the items on the crash cart. Surprisingly, the crash cart was missing some of the equipment mentioned by counsel for Defendants. But even with that equipment, as Defendants’ own expert, Dr. Dershwitz, admitted, the crash cart would be insufficient to maintain life after the first two chemicals were injected. According to Dr. Dershwitz, the following medications would be essential: medications to increase blood pressure and contract the heart; insulin; neostigmine; and artificial ventilation.183 None of these medications are part of Defendants’ crash cart.184 Defendants’ failure to have the proper equipment available at the execution chamber and their failure to ensure that they
exhibit 16 (excerpt from Defendant Haas deposition in Baze v. Rees, at 33). 181 See In the Matter of Readoption with Amendments of Death Penalty Regulations, 842 A.2d 207 (N.J.Super. 2004). 182 Exhibit 12 (Direct examination testimony of Dr. Mark Heath on 4/20/05 in Baze v. Rees at 150-51; exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 73-76). 183 Exhibit 13 (Cross examination testimony of Dr. Dershwitz on 5/2/05 in Baze v. Rees at 75-76.
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have someone available to operate the equipment that is trained in reversing the effects of the lethal
injection chemicals violates due process.
Although, “the grant of a stay of execution communicated to prison authorities after the lethal injection has been administered is not a likely event, it can happen,”185 and has happened. Dr. Heath has testified about two cases that he is aware of where this happened.186 Thus, as Defendants’
recognized by adding a crash cart to its lethal injection protocol, “it is a foreseeable occurrence. And should it occur, there can be no justification for depriving that inmate a chance at life.”187 A
matter of minutes can be the difference between life and death. Prompt medical attention is
necessary to maintain life. Defendants not only are currently unwilling to allow a properly trained
physician to perform life saving measures, but they also do not have the necessary equipment nearby
for a physician to use in attempting to save a life. Defendants’ failure (and seeming refusal) to take
reasonable steps to preserve a condemned inmate’s life if stay is granted after the lethal injection
process violates due process, fundamental fairness, and the basic respect for human dignity
underlying the Eighth Amendment to the United States Constitution.
III. Defendants’ failure to prepare an alternative means of accessing Moore’s veins in light of the fact that venous access will be difficult because of his compromised veins, their refusal to utilize readily available alternative chemicals and procedures that lessen the risk of pain and suffering and their failure to implement adequate life maintaining procedures in case of a stay of execution constitute deliberate indifference in violation of the cruel and unusual punishment clause of the state and federal constitutions.
Deliberate indifference to medical needs of a prisoner, including a refusal to lessen the risk
of pain and suffering, constitutes the unnecessary and wanton infliction of pain, proscribed by the
184 Id. at 77-78. 185 In the Matter of Readoption with Amendments of Death Penalty Regulations, 842 A.2d at 211. 186 Exhibit 46 (Excerpt from cross examination testimony of Dr. Mark heath on 4/20/05 in Baze v. Rees at 222-23). In addition, Clarence Hill was strapped to the execution gurney when the Supreme Court of the United States granted him a stay of execution in January 2006. 187 In the Matter of Readoption with Amendments of Death Penalty Regulations, 842 A.2d at 211.
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Eighth Amendment.188 “Deliberate indifference” means “the official was subjectively aware of the risk.”189 Thus, “to state a cognizable claim, a [plaintiff] must allege acts or omissions sufficiently harmful to evidence deliberate indifference,”190 by establishing that “the official knows of and disregards an excessive risk to inmate health or safety.”191
Defendants are quite aware of the fact that Moore suffers from compromised veins,192 which
will make it difficult if not impossible to gain peripheral access to his veins. In light of this,
attempting to insert an I.V. for up to 60 minutes, rather than deciding to employ an alternative
method of venous access constitutes deliberate indifference to known medical needs, in violation of
the Eighth Amendment to the United States Constitution. At the same time, resorting to a “cut
down” procedure when they have admitted, as recently as late 2004, that they are not qualified to perform a “cut down” procedure,193 is deliberate indifference. Defendants’ failure to come up with a
guaranteed means for accessing Moore’s veins also evinces their deliberate indifference.
Deliberate indifference is also evinced through the chemicals and procedures Defendants use
for injecting the chemicals. Through lethal injection litigation in other states and a state court lethal
injection challenge in Kentucky on behalf of two other death-sentenced inmates, Defendants have
been made aware of the risk of pain associated with the chemicals and procedures they use for
carrying out lethal injections. They have been informed of alternative chemicals that could be used,
and the necessary equipment for maintaining life if a stay of execution is granted after the first or
second chemical is administered. Yet, they have made no changes to their execution procedures to
188 Estelle v. Gamble, 429 U.S. 97 104 (1976). Because a prisoner remains under the care of the prison until death, the dying process by lethal injection must be considered a “medical need” that must be as painless as Defendants can make it. 189 Farmer, 511 U.S. at 837. 190 Gamble, 429 U.S. at 106. 191 Farmer, 511 U.S. at 837. 192 Exhibit 9 (Excerpts from Brian Keith Moore’s prison medical records).
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lessen the risk of pain. Instead, Defendants have made haphazard changes to their execution
protocol without consulting medical professionals, in an attempt to avoid liability.194 By failing to
take measures to correct the unnecessary risk of pain and suffering associated with their lethal
injection process and by failing to ensure they have the equipment to maintain life if a stay of
execution is granted after the first or second chemical is administered, Defendants have shown
deliberate indifference towards known risks of inflicting unnecessary pain in their lethal injection
process.
As Commissioner of the Department of Corrections, Defendant Rees has oversight authority
over how lethal injections are carried out in Kentucky. Defendant Rees also was involved in
adopting Oklahoma’s lethal injection protocol - - the first lethal injection protocol in the country.195
No medical or scientific tests were conducted on the effects of the chemicals Oklahoma adopted for
lethal injection.196 Other states looked at the Oklahoma protocol and the Texas protocol used in the
first lethal injection, and followed suit - - creating lethal injection protocols that called for the
administration of sodium thiopental, pancuronium bromide, and potassium chloride.197
In 1998, former Warden Parker decided what chemicals to use for Kentucky lethal injections
and what amount to administer.198 He based his decision entirely on what other states used, and
believed, incorrectly, that all other states used the same chemicals.199 He never consulted an
193 Exhibit 19 (Excerpt from deposition of former Warden Glenn Haeberlin on 4/19/05 in Baze v. Rees, at 41). 194 Exhibit 47 (Excerpt from direct examination testimony of former Warden Haeberlin on 4/19/05 in Baze v. Rees, at 1617) (did not consult medical about the changes to the protocol made during litigation, including changing the dose of thiopental from 2-3 grams, requiring the I.V. team to attempt to insert an I.V. for 60 minutes, and adding a crash cart); see generally, exhibit 8 (Testimony of Defendant Rees in Baze v. Rees); exhibit 52 (Cross examination of Defendant Rees on 5/2/05 in Baze v. Rees at 122-24). 195 Exhibit 8 (Testimony of John Rees on 4/18/05 in Baze v. Rees at 189). 196 Exhibit 2 (Direct examination testimony of Professor Denno on 4/18/05 in Baze v. Rees at 23-24). 197 Id. at 25-28, 31-32. 198 Exhibit 50 (Excerpts from direct examination testimony of former Warden Parker on 4/18/05 in Baze v. Rees at 13035). 199 Id.
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anesthesiologist or any other medical personnel to determine whether the chemicals he chose would serve its intended purpose, whether alternative chemicals existed, or even to find out if other chemicals existed that would pose less risk of pain and suffering.200 Instead, he blindly chose sodium thiopental, pancuronium bromide, and potassium chloride as the lethal injection chemicals, solely because Oklahoma did something like that twenty years earlier and other states had done the same.
Nothing changed when Defendants were made aware of the unnecessary risk of pain associated with the chemicals and procedures they use for carrying out lethal injections, even though they were also made aware of alternatives. Oregon has legalized assisted suicide and requires annual reports under its Death with Dignity Act. According to these reports, pentobarbital, a long acting barbiturate, has been used to cause death in most cases, with little to no side effects.201 Defendants, however, never looked into this, despite being informed of it.202 In addition, they were told that New Jersey does not use a paralytic agent during lethal injections. They did not look into this either. Why? According to Defendants, they were unaware that New Jersey does not use pancuronium bromide.203 Since 27 other states use the same chemicals during lethal injections, they saw no reason to learn why sodium thiopental, pancuronium bromide, and potassium chloride are used in lethal injections.204 What other states do, however, does not alleviate Defendants from the obligation to avoid creating a risk of unnecessary pain and suffering. Defendants’ failure to recognize this and take corrective measures evinces their deliberate indifference, in violation of the Eighth Amendment.
200 Id. 201 Exhibit 46 (Oregon Death With Dignity Act Report). 202 Exhibit 52 (Cross examination of Defendant Rees on 5/2/05 in Baze v. Rees at 124). 203 Exhibit 51 (Excerpts from direct examination testimony of former Warden Haeberlin on 4/19/05 in Baze v. Rees at 46).
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Defendants’ deliberate indifference is more egregious now than it was prior to the state court lethal injection trial on behalf of two other death-sentenced inmates. During that trial, testimony was presented that by replacing sodium thiopental with pentobarbital, the risk of pain and suffering would be substantially decreased. Testimony also established that by using pentobarbital, death could be caused without administering any other chemicals. Testimony also established pancuronium bromide was not necessary to cause death, and as their own expert admitted, less painful chemicals than potassium chloride could be used to stop the heart. Further, testimony established that Defendants could easily monitor for consciousness throughout the execution, and as undisputed testimony from their own expert established, maintaining life after the first and second chemical is administered is not difficult. But Defendants have not obtained the proper equipment. Their expert testified to what equipment would be necessary. Despite all of this, in the nearly one year since the state court lethal injection trial, Defendants have not changed their lethal injection chemicals, have not done anything to enable them to monitor for consciousness throughout the execution, and have not obtained the proper equipment for maintaining life after the first or second chemical have been administered. Defendants’ failure constitutes deliberate indifference, in violation of the Eighth Amendment to the United States Constitution IV. Fundamental notions of fairness and due process mandate that Defendants provide
Moore with a copy of their execution procedures so Moore can make a choose between lethal injection and electrocution, and to determine the extent to which their constitutional rights are being violated. Condemned inmates sentenced to death prior to March 31, 1998, are given the right to choose between lethal injection and electrocution.205 Although Defendants were court ordered to disclose their execution procedures (under seal) in other lethal injection litigation, they have denied
204 Id.
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Moore access to the execution procedures,206 claiming, in part, that the procedures are exempt from discovery because they are pending appeal in another case.207 Without access to the execution procedures, Moore is unable to intelligently exercise his right to choose between methods of execution. In addition, without access to the protocols, Moore is unable to determine if constitutional violations involving Defendants’ lethal injection procedures exist that are not alleged in this action, or if additional facts that would support Moore’s claims are contained within Defendants’ execution procedures. Thus, by depriving Moore of access to the execution procedures, Defendants are violating fundamental notions of fairness and procedural due process under the Fourteenth Amendment to the United States Constitution.
A. Disclosure of Defendants execution procedures is necessary to make a meaningful choice between electrocution and lethal injection.
In order for Moore’s Kentucky statutory right to choose between lethal injection and electrocution to have any meaning, Moore must have enough information to make a knowing and intelligent choice. A knowing and intelligent choice can only be made if Moore is notified of the procedures Defendants intend to utilize in carrying out his execution by lethal injection and electrocution. It is only through this information that Moore can make a knowing and intelligent decision as to which method of execution will be less painful. Therefore, it is imperative that this Court order Defendants to disclose to Moore a complete copy of the execution procedures for lethal injection and electrocution.
B. Fundamental notions of fairness and Due Process require that Defendants provide Moore with a complete copy of the execution procedures.
Procedural due process demands that citizens be given a meaningful opportunity to contest a
205 K.R.S. section 431.220. 206 Exhibit 1 (Defendants’ Response to Open Records Request). 207 Id.
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constitutional violation.208 The central meaning of procedural due process is clear:
parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.209
Procedural due process takes on a heightened meaning in capital cases.
“Because death is a different kind of punishment from any other which may be imposed in
this country,”210 the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment
Cruel and Unusual Punishment Clause prevent a criminal defendant from being executed based on
secret information (information that he was unaware of and unable to obtain due to no fault of his
own), id., or information which he was not given an opportunity to rebut.211 If a condemned inmate
cannot be sentenced to death based on secret information, then likewise, the condemned inmate
cannot be executed under a secret procedure that the condemned inmate had no notice of or
opportunity to challenge.212
In addition, inmates facing the death penalty are entitled to notice when there has been a
post-conviction change in mode of execution.213 And, “it is clear that in innumerable death penalty
cases the execution protocols have been examined by courts for their compliance with constitutional
requirements.”214 Court review of the execution procedures presupposes knowledge of the contents
208 Hamdi v. Rumsfeld, 542 U.S. 507 (2004). 209 Id. at 533 (quoting, Fuentes v. Shevin, 407 U.S. 67, 80 (1972). 210 Gardner v. Florida, 430 U.S. 349, 357 (1977). 211 Simmons v. South Carolina, 512 U.S. 154 (1994). 212 See, Oken v. Sizer, 32 F.Supp.2d 658, 664-65 (D.Md. 2004), reversed on other grounds by, Sizer v. Oken, 542 U.S. 916 (2004). 213 See, e.g., Stewart v. LaGrand, 526 U.S. 115, 119 (1999); Poland v. Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Sims v. Florida, 754 So.2d 657, 665 (Fla. 2000); DeShields v. State, 534 A.2d 630, 639 n. 7 (Del.1987); State v. Fitzpatrick, 684 P.2d 1112, 1113 (1984). 214 Oken, 321 F.Supp.2d at 664-65 (citing by e.g., Nelson, 541 U.S. 637 (2004); In re Williams, 359 F.3d 811 (6th Cir.2004); Poland v. Stewart, 117 F.3d 1094 (9th Cir.1997); Campbell v. Wood, 18 F.3d 662 (9th Cir.1994); Cooper v.
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of those procedures.215 Thus, it is clear that a procedural right exists to know the procedures that will be used in carrying out an execution by any method. What procedures are required is determined by a balancing test.
The “process due in any given circumstance is determined by weighing ‘the private interest that will be affected by the official action against the government’s asserted interest ‘including the functions involved and the burdens the Government would face in providing greater process.’”216
Defendants claim that their execution procedures must remain confidential in order to protect security. Moore’s interest is making sure that he will not suffer excruciating pain during his execution. In other words, he seeks a death in accord with the dignity of man.217 Although Defendants’ interest is weighty, it is not as strong as the interest in ensuring a dignified death, particularly in light of evidence demonstrating that Defendants are not currently capable of carrying out a humane lethal injection. Thus, the weighing of the respective interests favors disclosing the entire execution procedures so that Moore does not have to take Defendants’ word that his Eighth Amendment rights will not be violated.218
Aside from the traditional due process argument, the public has a right to know the full protocol for any method of execution, because under current Supreme Court of the United States
Rimmer, 2004 WL 231325 (N.D.Cal.2004), aff'd, 358 F.3d 655; Cal. First Amendment Coalition v. Woodford, 2000 WL 33173913 (N.D.Cal.2000), aff'd, 299 F.3d 868; Jones v. McAndrew, 996 F.Supp. 1439 (N.D.Fl.1998); LaGrand v. Lewis, 883 F.Supp. 469 (D.Ariz.1995). 215 Oken, 321 F.Supp.2d at 664-65. 216 Hamdi, 542 U.S. at 529 (quoting, Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 217 See Gregg v. Georgia, 428 U.S 153, 176 (1976). 218 See Oken, 321 F.Supp.2d at 665; see also, Nelson v. Campbell, 541 U.S. 637 (2004) (requiring the Alabama Department of Corrections to disclose its execution procedures as part of the remand order to determine if the use of a cut down procedure during a lethal injection violates the Eighth Amendment).
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case law, a determination of what is cruel or unusual depends on evolving standards of decency. By withholding their lethal injection protocol, Defendants are - - in effect - - freezing the current protocol for lethal injection. The public cannot form a bad opinion regarding a procedure, or an aspect of that procedure, if it knows nothing about it (or is led to believe inaccurate information). The less the public knows, the more likely it is to not demand changes to portions of a method of execution. An integral part of Eighth Amendment law is the evolving standards of decency. The evolving standards of decency analysis cannot be conducted on all aspects of Defendants’ lethal injection procedures unless the public has the opportunity to view the execution protocol. Thus, the failure to disclose a full copy of the execution protocols deprives Moore of the opportunity to have a full adjudication of his constitutional claims. V. This lawsuit is cognizable as a 42 U.S.C. § 1983 action.
42 U.S.C. § 1983 provides, in pertinent part, for the protection of “any rights, privileges, or immunities secured by the Constitution and laws” against infringement by the states. When these rights are violated, section 1983 creates an action for damages and injunctive relief for the benefit of “any citizen of the United States” against the state actor responsible for the violation. In accordance with the remedial nature of the statute, the scope of section 1983 must be “liberally and beneficially construed.”219 Section 1983 is not available for claims that go to the core of habeas corpus, i.e., challenging the fact of conviction or the duration of a sentence and that request injunctive relief in the form of relief from confinement or sentence.220 Because Moore’s claims challenge particular aspects of how his execution will be carried out, not the validity of his conviction or sentence, his legal claims are cognizable in a 1983 action.
219 Dennis v. Higgins, 498 U.S. 439, 443 (1991) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 684 (1978).
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Moore’s ability to maintain this narrow suit in a 1983 proceeding rather than as a habeas
proceeding turns upon whether his claims “necessarily imply the invalidity of their conviction[s] or sentence[s].”221 During the past two years the Supreme Court of the United States decided three
cases determining whether a particular cause of action fell within the province of 1983 or had to be characterized as a habeas petition, including Nelson v. Campbell,222 which dealt with the means for
obtaining venous access to carry out a lethal injection. Each of these cases makes it clear that
Moore’s action is cognizable as a 1983 action. Last year, in Wilkinson v. Dotson,223 the Supreme Court held that an action challenging
Ohio’s parole procedures was cognizable in a 1983 suit, because the action did not challenge the
“fact or duration of . . . confinement and seek either immediate release from prison or the shortening of the term of confinement.”224 The Court’s holding in Dotson reiterates its ruling a year earlier in Muhammad v. Close,225 where the Court held that the “requirement to resort to state post conviction
litigation and federal habeas corpus before filing a civil suit for injunctive relief is not, however,
implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his sentence.”226
In Muhammad, a prisoner filed a section 1983 suit against a prison official alleging that he
had been charged with an institutional infraction that subjected him to a mandatory pre-hearing lockup.227 The Court held that “these administrative determinations do not as such raise any
implication about the validity of the underlying conviction, and although they may affect the
220 Nelson v. Campbell, 541 U.S. 637 (2004). 221 Heck v. Humphrey, 512 U.S. 475, 487 (1994). 222 541 U.S. 637 (2004). 223 125 S.Ct. 1242 (2005). 224 Id. at 1246 (internal citations omitted). 225 540 U.S. 749 (2004). 226 Id. at 751.
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duration of the time to be served that is not necessarily so.”228 Accordingly, the Court held that the suit was properly filed under section 1983.
Like Muhammad, Moore’s suit for injunctive relief cannot be “construed as seeking judgment at odds with his conviction [or sentence].”229 Moore does not challenge his death sentence or the constitutionality of lethal injection per se. His complaint, memorandum of law, and motion for a temporary restraining order are clear on this. He seeks only to bar Defendants from executing him in the manner they currently intend (the use of chemicals and procedures that create an unnecessary risk of pain and suffering, Defendants’ deliberate indifference towards this, and their failure to use the proper equipment to maintain life if a stay of execution is granted after the injection of the first and second chemical). Thus, under Muhammad, Moore’s suit does not challenge Defendants’ right to execute him by lethal injection. Therefore, Moore’s present suit must be allowed to proceed as an independent civil action.
Any doubt about the meaning of Muhammad and its implications for Moore was clarified in Nelson v. Campbell,230 where the Court cited Muhammad for the proposition that its holding is “consistent with [its] approach to civil rights damages actions.”231 In Nelson, the Court addressed the issue of “whether section 1983 is an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay and permanent injunctive relief” on the grounds that the particular means for effectuating petitioner’s death sentence by lethal injection violated the Eighth Amendment
227 Id. at 752. 228 Id. at 754. 229 Id. at 754-55. 230 541 U.S. 637 (2004). 231 Id. at 646-47.
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Cruel and Unusual Punishment Clause.232
In addressing this issue, the Court noted that “a constitutional challenge seeking to
permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence itself.”233 On the other hand, the Court held that “[a] suit seeking to enjoin a particular means of
effectuating a sentence of death does not directly call into question the ‘fact’ or ‘validity’ of the
sentence itself’ because “by altering its method of execution, the State can go forward with the sentence.”234 Moreover, “merely labeling something as part of an execution procedure is insufficient to insulate it from a section 1983 attack.”235 Rather, a three-part test should be used to determine
whether a claim challenges a method of execution: 1) whether the challenged procedure is a
statutorily mandated part of the execution; 2) whether the protocol is necessary for administering the
lethal injection; and, 3) whether the plaintiff is attempting to preclude execution by alternative methods.236 Applying these principles to Nelson’s challenge to a particular aspect of the lethal
injection procedure, the Court held that his claim was properly filed under section 1983 because the
allegation “that venous access is a necessary prerequisite does not imply that a particular means of gaining such access is likewise necessary.”237
Applying the Nelson test to Moore’s action establishes that his action is cognizable in 1983.
First, like Nelson, venous access is at issue in carrying out Moore’s execution. Second, neither the
means of obtaining venous access nor the chemicals Defendants use to carry out a lethal injection
232 Id. at 639. 233 Id. at 644. The Nelson Court also stated that it was not deciding the difficult question of whether a challenge to a method of execution on its face could only be brought in a habeas action. Thus, in light of Nelson, whether a per se challenge to a method of execution is permissible in a 1983 action - - an issue that seemed foreclosed prior to Nelson - - is now an open issue. 234 Id. at 645-46. 235 Id. at 645. 236 Id. at 644-47. 237 Id. at 642-47.
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are mandated by statute. Third, Defendants’ current protocol is not necessary for carrying out lethal
injection. Finally, Moore is not trying to prevent his execution by alternative methods. Rather, he
has conceded that lethal injection is constitutional on its face and has presented viable alternative
chemicals to administer and procedures to utilize that will pose less risk of unnecessary pain and
suffering. Thus, as discussed in Moore’s complaint and this memorandum of law, he satisfies the
requirements to proceed in a 1983 action.
In the past, arguments have been made that Nelson is limited to the use of a “cut down”
procedure or other methods of obtaining venous access. While those issues are at play in this case,
Nelson does not limit Moore’s 1983 action to the process of inserting an I.V. This contention is
further undermined by reference to the two certiorari questions presented in Nelson. The court,
however, limited its consideration to the first question, which asked:
Whether an action brought by a death-sentenced prisoner pursuant to 42 U.S.C. section 1983, which does not attack a conviction or sentence, is simply because the person is under a sentence of death – to be treated as a habeas corpus case subject to the restriction on successive petition which categorically precludes review of any constitutional violation not related to innocence, or can be maintained as section 1983 action?
The second question asked, “whether a cut-down procedure which involves pain and
mutilation, conducted prior to an execution by lethal injection, violates the Eighth Amendment to the United States Constitution?238 By expressly limiting the issue for consideration to the first question presented,239 the Court made it clear that it meant to address all situations that did “not attack a
conviction or sentence.” Therefore, any suggestion that Nelson is limited to a “cut-down” procedure
is inaccurate. If Nelson’s reach is circumscribed to merely a cut down procedure, the Court would
238 See Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit, in Nelson v. Campbell. 239 Nelson v. Campbell, 124 S.Ct. 835 (2003) (order granting petition for writ of certiorari).
50

have granted review on the second question (which focused exclusively on the use of a cut-down procedure). Instead, Nelson dealt directly with the procedural question of the proper forum for claims that do not directly challenge the state’s ability to carry out an execution, and established that
a federal district court retains subject matter jurisdiction to hear all section 1983 claims filed by a prisoner under a state sentence provided that the claim does not imperil execution of the sentence.
By recognizing section 1983 as a proper vehicle to bring such claims, the Court could not have believed that only cut down cases are cognizable under section 1983. Rather, Justice O’Connor’s opinion contemplates that other “method – of – execution claims” will be brought through the Court, but “it need not reach the difficult question of how to categorize method – of – execution claims generally.”240
These aspects of the Court’s opinion do not support the conclusion that the only means-ofeffectuating-a-death-sentence claims that can be raised are “cut down cases.” Rather, these aspects of Nelson suggest that the Court is well aware that there will be other manner of method – of – executions suits in the future and will reserve ruling on those cases for another day.
In short, if Nelson extends only to lethal injection cut down cases, the Court certainly would have closed the “floodgates” by granting certiorari on merely the second question. This it did not do. Instead, it recognized a procedural mechanism in section 1983 and a federal district court’s subject matter jurisdiction over those claims when brought by death sentenced prisoners. Such action by the United States Supreme Court, as many post-Nelson courts have recognized, clearly “opens” the courthouse door to more than death sentenced inmates with bad veins.
51

For example, in Oken v. Sizer,241 the court allowed a challenge under §1983 to the manner of
inserting the I.V. line:
a challenge to the manner of administration of an IV line in a death setting as little different from its administration in a non-death setting. Both instances involve inserting an IV into the individual, infusing chemicals, monitoring vital signs, and making appropriate adjustments as circumstances may require. The procedures relate to each other in much the same fashion as a cut-down procedure in a non-death setting relates to such a procedure in a death setting.242
For this reason, the court held that Oken’s challenge to the particular means for effectuating a
sentence of death was a challenge to the conditions of confinement rather than the fact of his
conviction, because as the Supreme Court concluded in Nelson, to conclude otherwise would be to
impermissibly “treat petitioner’s claim differently solely because he has been condemned to die.”243
Numerous other courts have reached the same conclusion.244 As these cases demonstrate, Nelson
stands for the proposition that Moore’s claim, which does not challenge lethal injection on its face, is
cognizable as a civil action.
Even assuming, arguendo, that Moore’s claim is a challenge to the method of execution,
that does not preclude this Court from reviewing the merits of the claim. Nelson expressly left open
the question whether challenges to the method of execution are cognizable in a civil proceeding.
Thus, whether a method of execution claim is cognizable in a civil action is an open question that
this Court must review in the first instance if Moore’s claim is considered to challenge more than the
240 Nelson, 541 U.S. at 644. 241 321 F.Supp.2d 658 (D.Md. 2004), reversed on other grounds by, Sizer v. Oken, 542 U.S. 916 (2004). 242 Id. at 662. 243 Id. at 645. 244 See, e.g., Harris v. Johson, 376 F.3d 414, 416 (5th Cir. 2004) (“Method of execution actions may be brought in a 1983 suit instead of a habeas petition); Reid v. Johnson, 105 Fed.Appx. 500 (4th Cir. 2004) (permitting a 1983 challenge to
52

conditions of his confinement.
VI. Moore’s challenge to the lethal injection procedures and chemicals are ripe for adjudication. Moore’s claims are ripe for adjudication and are the proper subject upon which this Court
may exercise jurisdiction. Defendants, however, may assert, as they have in prior lethal injection litigation in Kentucky, that Moore is somehow “too early” in seeking to invoke this Court’s jurisdiction and must await a death warrant. Any suggestion that Moore’s claims are “unripe” is disingenuous because had Moore waited until he was under death warrant before filing this claim, “defendants undoubtedly would have claimed [he was] here too late and [was] engaged in an ‘obvious attempt at manipulation’ and ‘abusive delay.’”245 Thus, “any attempt to delay adjudication of this claim [would be] both puzzling and, in any event, unfounded.”246
According to the Supreme Court of the United States, a case is ripe for judicial decision where the issues to be considered are purely legal ones and where the agency rule or action giving rise to the controversy is final and not dependent upon future uncertainties or intervening agency rules.247 Predominantly legal issues are fit for decision even when further factual development would be helpful.248 As the Sixth Circuit has noted, ripeness is determined by 1) “whether the issues at stake are fit for judicial decision; and 2) the extent of the hardship to the parties of withholding
lethal injection chemicals). 245 Jones v. McAndrew, 996 F.Supp. 1439, 1437 (N.D. Fla. 1998) (quoting, Gomez v. United Dist. Court, 503 U.S. 653, 654 (1992). 246 Id. (holding that a challenge to the constitutionality of electrocution procedures is ripe prior the scheduling of an execution date); accord, Treesh v. Taft, 122 F.Supp.2d 881, 886-87 (S.D. Ohio 2000). 247 Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967), overruled on other grounds, by Califano v. Sanders, 430 U.S. 99 149 (1977). 248 Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983).
53

court consideration.”249 “In the context of a pre-enforcement challenge, a case is ripe for review only if the probability of the future event occurring is substantial and of sufficient immediacy and reality.”250 Moore’s legal claims satisfy each of these requirements.
First, the issues before this Court are the pure legal questions of whether Defendants’ lethal injection procedures and chemicals create a risk of unnecessary pain and suffering, in violation of the Eighth Amendment to the United States Constitution, whether Defendants’ failure to maintain the necessary equipment for maintaining life if a stay of execution is granted after the first and second chemical have been administered deprives Moore of the right to life, and whether Defendants are deliberately indifferent to these issues. These claims arise directly from Defendants’ execution procedures and lethal injection litigation on behalf of Ralph Baze and Thomas Bowling. There is nothing speculative regarding the chemicals and procedures that Defendants intend to use to carry out Moore’s execution. But, even to the extent that further factual development concerning the procedures would be helpful, Moore’s claims are pure legal issues that are ripe without further factual development.251
Second, the probability that Moore will be executed in the manner intended by Defendants is substantial. Currently, there are no legal impediments to Moore’s execution other than the remote possibility that a court may reverse his death sentence. If no court intervenes and the Governor does not commute Moore’s sentence, Moore will be executed in the manner intended by Defendants. Defendants have no ability to choose not to execute Moore. Thus, the probability that Moore will be executed under the questionable procedures and utilizing unconstitutional chemicals is substantial.
249 Cleveland Branch, National Association for the Advancement of Colored People v. City of Parma, 263 F.3d 513, 533 (6th Cir. 2001); accord, Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351, 1362 (6th Cir. 1995).
54

Third, there is little question that Moore satisfies the hardship prong. The hardship prong has never required actual enforcement. Rather, immediacy of the threat of enforcement is all that is required, and, where enforcement is certain, ripeness is satisfied even when a delay in enforcement is present.252 Defendants have requested execution warrants for Moore in the past and may again request a warrant for his execution soon. This alone demonstrates that Moore’s claims are ripe for adjudication. In addition, this case likely could not be decided within the usual 30 day period between the signing of an execution warrant and the scheduled execution. Accordingly, waiting for an execution warrant could prevent Moore from ever having enough time to adequately litigate the issue. Thus, the necessity of litigating the claim as soon as possible could never be more important.
Finally, the nature of the harm (death) that will be imposed on Moore if these claims are not adjudicated is unique. Unlike most other type of plaintiffs requesting injunctive or declaratory relief, Moore will not survive the alleged violation of his constitutional rights. If he is ever to have his day in court, it must be here and now while there is adequate time to litigate the merits of the claim, conduct discovery, and hold an evidentiary hearing. Accordingly, any assertion by Defendants that this litigation can only go forward under the difficult conditions imposed by a scheduled execution is disingenuous and must be rejected.
CONCLUSION. Although Moore has been convicted of a heinous crime, Moore is a human being, and should
250 People Rights Organization, Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir. 1998). 251 See Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983). 252 See Regional Rail Reorganization Act Cases, 419 U.S. 102, 143 (1974) (“Where the inevitably of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justifiable controversy that their will be a time delay before the disputed provisions will come into effect.”); Lake Carriers Association v. MacMullan, 406 U.S. 498, 507-08 (1972) (express statement that prosecutions would not begin until construction of necessary infrastructure, which would take years to complete, did not alter the fact that enforcement was inevitable)
55

be treated better than an animal. All Moore is asking for is a death in accord with the dignity of humankind, as guaranteed by the Constitution. The chemicals and procedures Defendants intend to use to kill him treat him worse than a dog. Surely, something that is too dangerous to use on a dog cannot confirm with the dignity of humankind. Defendants’ failure to do anything about this, despite being fully aware of the problems, suggests that they just do not care. The Constitution and this Court, however, must care. The allegations contained in Moore’s complaint and supported in this Memorandum are substantial and deserve serious consideration by this Court. Declaratory and injunctive relief must be granted.

RESPECTFULLY SUBMITTED,

__________________________ DAVID M. BARRON Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

___________________________ SUSAN J. BALLIET
Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

____________________________ MARGUERITE NEILL THOMAS Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

April 19, 2006

CERTIFICATE OF SERVICE

I hereby certify that on this date, I caused a true and correct copy of the foregoing

MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT 56

(LETHAL INJECTION BRIEF) to be served via first class mail, postage prepaid on the following individuals:

April 19, 2006.

Hon. Jeff Middendorf General Counsel Department of Corrections 2439 Lawrenceburg Road P. O. Box 2400 Frankfort, Kentucky 40602
Hon. David Smith Assistant Attorney General 1024 Capital Center Drive Frankfort, Kentucky 40601
Hon. Jim Deckard General Counsel Office of the Governor The Capital 700 Capital Avenue Frankfort, Kentucky 40601
______________________________ COUNSEL FOR PLAINTIFF

57

58

 
 Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 1 of 33
U.S. District Court Eastern District of Kentucky (Frankfort) CIVIL DOCKET FOR CASE #: 3:06−cv−00022−KKC

REFERP

Moore v. Rees et al Assigned to: Judge Karen K. Caldwell Referred to: PSO Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 04/19/2006 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Brian Keith Moore

represented by David M. Barron Department of Public Advocacy − Capital Post Conviction Unit 100 Fair Oaks Lane Suite 301 Frankfort, KY 40601 502−564−3948 Fax: 502−564−3949 Email: davembarron@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marguerite Neill Thomas Department of Public Advocacy − Frankfort 100 Fair Oaks Lane Suite 302 Frankfort, KY 40601 502−564−3948 Fax: 502−564−3949 Email: marguerite.thomas@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Jackson Balliet Department of Public Advocacy − Frankfort 100 Fair Oaks Lane Suite 302 Frankfort, KY 40601 502−564−3948 Fax: 502−564−3949 Email: susan.balliet@ky.gov TERMINATED: 08/25/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Jeffrey Leonard TERMINATED: 03/17/2008
Intervenor Plaintiff

represented by David M. Barron (See above for address) ATTORNEY TO BE NOTICED
Marguerite Neill Thomas (See above for address) ATTORNEY TO BE NOTICED

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 2 of 33

Thomas Clyde Bowling TERMINATED: 09/26/2007

represented by David M. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Anthony Palombi Public Advocate's Office 100 Fair Oaks Lane Suite 301 Frankfort, KY 40601 502−564−3948 Fax: 502−564−3949 Email: john_palombi@fd.org ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Ralph Baze TERMINATED: 09/25/2007

represented by David M. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Intervenor Plaintiff Roger Dale Epperson

represented by David M. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
John D. Rees Commissioner, Kentucky Department of Corrections Frankfort, Kentucky

represented by Brenn Oliver Combs Office of Legal Services − Dept of Corrections 275 E. Main Street P.O. Box 2400 Frankfort, KY 40602−2400 502−564−4726 Fax: 502−564−5037 Email: brenn.combs@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey T. Middendorf Commonwealth of Kentucky− Justice Cabinet 125 Holmes Street Second Floor Frankfort, KY 40601 502−564−3279 Fax: 502−564−6686 Email: jeff.middendorf@ky.gov TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas L. Self KY Justice &Public Safety Cabinet − Legal Services

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 3 of 33

Office of Legal Services 125 Holmes Street Second Floor Frankfort, KY 40601 502−564−8234 Fax: 502−564−6686 Email: tom.self@ky.gov TERMINATED: 03/17/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly Harris−Ray Commonwealth of Kentucky− Justice Cabinet 125 Holmes Street Second Floor Frankfort, KY 40601 502−564−3279 Fax: 502−564−6686 Email: holly.harris@ky.gov TERMINATED: 09/13/2007 ATTORNEY TO BE NOTICED

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

Defendant
Thomas Simpson Warden, Kentucky State Penitentiary, Eddyville, Kentucky

represented by Brenn Oliver Combs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Thomas L. Self (See above for address) TERMINATED: 03/17/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly Harris−Ray (See above for address) TERMINATED: 09/13/2007 ATTORNEY TO BE NOTICED

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

Defendant
Scott Haas Medical Director for the Kentucky Department of Corrections

represented by Brenn Oliver Combs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 4 of 33

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

Thomas L. Self (See above for address) TERMINATED: 03/17/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly Harris−Ray (See above for address) TERMINATED: 09/13/2007 ATTORNEY TO BE NOTICED

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

Defendant
Ernie Fletcher Governor of the Commonwealth of Kentucky

represented by Brenn Oliver Combs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Thomas L. Self (See above for address) TERMINATED: 03/17/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly Harris−Ray (See above for address) TERMINATED: 09/13/2007 ATTORNEY TO BE NOTICED

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

Defendant Unknown Executioners

represented by Brenn Oliver Combs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly Harris−Ray (See above for address) TERMINATED: 09/13/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey T. Middendorf (See above for address) TERMINATED: 11/26/2007 LEAD ATTORNEY

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 5 of 33
ATTORNEY TO BE NOTICED
John C. Cummings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas L. Self (See above for address) TERMINATED: 03/17/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/19/2006
04/19/2006 04/19/2006 04/19/2006 04/19/2006
04/19/2006 04/19/2006
04/19/2006 04/19/2006
04/19/2006

# Docket Text
1 COMPLAINT 4 summons(es)issued with copy , filed by Brian Keith Moore. (Attachments: # 1 Remaining Pages of Complaint 59−63# 2 Exhibit to Complaint − Grievance Rejection Notice &Inmate Grievance Form# 3 Memorandum in Support of Complaint re Lethal Injunctions − Part 1 (Exhibits to Memo not Scanned on file in Fkt Clerk's Ofc)# 4 Memorandum in Support of Complaint re Lethal Injections Part 2(Exhibits to Memo not Scanned on file in Clerk's Ofc)# 5 Memorandum in Support of Complaint re Execution (Exhibits to Memo not Scanned on file in Clerk's Ofc)# 6 Cover Sheet, Case Assignment &Summonses)(CBD) (Entered: 04/19/2006)
2 MOTION for Leave to Proceed in forma pauperis by Brian Keith Moore (Attachments: # 1 Certification of Funds# 2 Proposed Order)(CBD) (Entered: 04/19/2006)
3 NOTICE of Appearance of David Barron, counsel for by Brian Keith Moore (CBD) (Entered: 04/19/2006)
4 NOTICE of Appearance by Susan Jackson Balliet on behalf of Brian Keith Moore (CBD) (Entered: 04/19/2006)
5 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction Barring Defendants from Scheduling and Carrying Out Plaintiffs' Execution During the pendency of this Litigation and Consolidated Memorandum in Support by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/19/2006)
6 MOTION for Immediate Scheduling Conference Under Rule 16 pf FRCP (for Hearing) by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/19/2006)
7 MOTION for Order to Prohibit Defendants from conducting any physical examination of plaintiff for discovery purposes or in futherance of the Kentucky Department of Corrections' Execution Procedures and Consolidated Supporting Memo by Brian Keith Moore (Attachments: # 1 USDC SC Order dated 3/5/2004# 2 Proposed Order)(CBD) (Entered: 04/19/2006)
8 MOTION for Order to dispense with FRCP 26(f) Conference by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/19/2006)
9 MOTION to Permit Discovery prior to FRCP 26(f) Conference and for Expedited Discovery by Brian Keith Moore (Attachments: # 1 Interrogatories# 2 Request for Entry Upon Land for Inspection# 3 First Request for Production of Documents# 4 Notice of Individuals Plaintiff Intends to Depose and Intended Scope of Depositions# 5 Proposed Order)(CBD) (Entered: 04/19/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 6 MOTION for Hearing by Brian Keith Moore, 2 MOTION for Leave to Proceed in forma pauperis by Brian Keith Moore, 5 MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore (CBD) (Entered:

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 6 of 33

04/19/2006 04/19/2006 04/20/2006 04/20/2006 04/20/2006 04/20/2006 04/20/2006 04/21/2006 04/21/2006
04/21/2006 04/21/2006 04/21/2006
04/21/2006 04/25/2006

04/19/2006)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for inital review. (CBD) (Entered: 04/19/2006)
Clerk's Note: Court Copy sent to Chambers and SKV notified re Capital Case. (CBD) (Entered: 04/19/2006)
10 MOTION (for Order) to Disqualify Hon. Jeffrey Middendorf from representing any present or future defendants in this action by Brian Keith Moore (Attachments: # 1 Document outlining Duration of Effect of the Lethal Injection Chemicals# 2 Proposed Order)(CBD) (Entered: 04/20/2006)
11 SUMMONS Returned Executed by Brian Keith Moore via service on Hon David Smith, Asst. Attorney General as to Ernie Fletcher served on 4/19/2006, answer due 5/9/2006. (CBD) (Entered: 04/20/2006)
12 SUMMONS Returned Executed by Brian Keith Moore via service upon David Smith, Asst. Attorney General, as to Scott Haas served on 4/19/2006, answer due 5/9/2006. (CBD) (Entered: 04/20/2006)
13 SUMMONS Returned Executed by Brian Keith Moore via service upon Hon. David Smith, Asst. Attorney General, as to Thomas Simpson served on 4/19/2006, answer due 5/9/2006. (CBD) (Entered: 04/20/2006)
14 SUMMONS Returned Executed by Brian Keith Moore via service upon Hon. David Smith, Asst. Attorney General, as to John D. Rees served on 4/19/2006, answer due 5/9/2006. (CBD) (Entered: 04/20/2006)
15 NOTICE of Appearance by Marguerite Neill Thomas on behalf of Brian Keith Moore (CBD) (Entered: 04/21/2006)
16 EMERGENCY MOTION for Argument on 5] MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore 6 MOTION for Hearing by Brian Keith Moore, 8 MOTION for Order by Brian Keith Moore, 9 MOTION to Expedite by Brian Keith Moore, 7 MOTION for Order by Brian Keith Moore, 10 MOTION for Order by Brian Keith Moore, [MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/21/2006)
17 EMERGENCY MOTION for Order to allow discovery to begin immediately and to shorten the amount of time defendants have to respond to discovery requests by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/21/2006)
18 MOTION for Order to shorten time for defendants to file a responsive pleading to the complaint by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/21/2006)
19 MOTION for Disclosure of the Kentucky Department of Corrections' Execution Protocol by Brian Keith Moore (Attachments: # 1 Proposed Order # 2 Exhibit 1 − Dfts' Response to Open Records Request# 3 Exhibit 2 − Breakdown of States w/ Public or Private Lethal Injection Protocols# 4 Exhibit 3 − California State Prison − San Quentin Operational Procedure# 5 Exhibit 4 − Georgia Dept of Corrections − Lethal Injection Procedure# 6 Exhibit 5 − Maryland Execution Operations Manual# 7 Exhibit 6 − South Carolina Execution Procedures)(CBD) (Entered: 04/21/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 18 MOTION for Order to shorten time dfts have to answer by Brian Keith Moore, 17 MOTION for Order by Brian Keith Moore, 16 Emergency MOTION for Hearing (CBD) (Entered: 04/21/2006)
20 DEFICIENCY ORDER: 1. Current application to proceed ifp 2 denied without prejudice 2) Clerk mark assigned forms w/ case number and send to counsel for plaintiff 3. pltf required to pay filing fee 4. pla on notice that failure to submit forms or pay fee w/in 30 days district court must a. presume prisoner not pauper

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 7 of 33

04/26/2006 04/26/2006 04/26/2006 04/26/2006 05/01/2006
05/03/2006 05/08/2006 05/11/2006
05/15/2006
05/17/2006 05/26/2006 05/26/2006
05/26/2006 05/30/2006

&b. order case dismissed for want of prosecution; &not reinstated; 5. upon payment of filing fee or filing of affidavit or expiration of 40 days return record to PSLC.. Signed by Judge Karen K. Caldwell. (Attachments: # 1 Form 122 Affidavit of Assets/IFP)(CBD)cc: COR w/ Form 122 (Entered: 04/25/2006)
21 NOTICE OF FILING OF COURT SUPPLIED AFFIDAVIT OF ASSETS FOR APPLICATION TO PROCEED IN FORMA PAUPERIS by Brian Keith Moore (Afidavit filed seperately as DE 22) (CBD) (Entered: 04/27/2006)
22 AFFIDAVIT/MOTION OF ASSETS FOR APPLICATION TO PROCEED IN FORMA PAUPERIS by Brian Keith Moore (CBD) (Entered: 04/27/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 22 MOTION for Leave to Proceed in forma pauperis by Brian Keith Moore (CBD) (Entered: 04/27/2006)
23 AMENDED MOTION to Disqualify Counsel, Hon. Jeffrey Middendorf, by Brian Keith Moore (Attachments: # 1 Exhibit − Duration of Effect of Lethal Injection Chemicals and Reversal Chemicals# 2 Proposed Order)(CBD) (Entered: 04/27/2006)
24 NOTICE OF FILING OF SUPPLEMENTAL AUTHORITY by Brian Keith Moore re 5 MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore, 1 Complaint (Attachments: # 1 2:04−cv−1156 GLF Cooey and Hill v. Taft (S.D. Ohio 4/28/2006))(CBD) (Entered: 05/01/2006)
25 SECOND NOTICE OF SUPPLEMENTAL INFORMATION by Brian Keith Moore re 1 Complaint. (Attachments: # 1 Newspaper Articles describing Joseph Lewis Clark's execution)(CBD) (Entered: 05/03/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 7 MOTION for Order by Brian Keith Moore, 8 MOTION for Order by Brian Keith Moore, 9 MOTION to Expedite by Brian Keith Moore, 10 MOTION for Order by Brian Keith Moore (AKR) (Entered: 05/08/2006)
26 MOTION for Default Judgment by Brian Keith Moore (Attachments: # 1 Memorandum in Support # 2 Exhibit 1 − Letter requesting an execution warrant# 3 Exhibit 2 − Summonses including return of service portion on 4/19/2006# 4 Exhibit 3 − Ddls/hearings entry from electronic filing system for this case# 5 Proposed Order)(CBD) (Entered: 05/12/2006)
27 ORDER: 1) Moore's ifp motion 22 GRANTED 2−6) Directing Monthly Payments be made from Prison Account of Brian Keith Moore 7) Clerk serve copy upon Jailer/Warden of Institution in which prisoner confined and Office of General Counsel, Dept. of Corrections, Fkt KY. Signed by Judge Karen K. Caldwell. (CBD)cc: COR, Finance, Ofc of Gen Counsel Dept of Corrections, Warden KSP (Entered: 05/15/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 19 MOTION for Disclosure by Brian Keith Moore, 23 MOTION to Disqualify Counsel by Brian Keith Moore (CBD) (Entered: 05/17/2006)
28 NOTICE OF APPEARANCEof Attorneys by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher.(Harris−Ray, Holly) (Entered: 05/26/2006)
29 RESPONSE in Opposition re 26 MOTION for Default Judgment by Brian Keith Mooreand Motion for Briefing Schedule filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying motion for default judgment and establishing scheduling order)(Harris−Ray, Holly) (Entered: 05/26/2006)
30 MOTION For Briefing Schedule by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (Attachments: # 1 Proposed Order)(AKR) (Entered: 05/30/2006)
NOTICE OF DOCKET MODIFICATION TO H. Harris−Ray re 29 Response in Opposition to Motion ; Error: This is a Response to Motion for Default Judgment

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 8 of 33

05/31/2006 05/31/2006 05/31/2006 06/01/2006
06/06/2006 06/12/2006 06/13/2006
06/14/2006 06/14/2006 06/14/2006

AND a Motion for Briefing Schedule. The attorney has only filed the pleading as a Response. Document should have been filed as two separate pleadings; Entry made by attorney; Correction: Clerk has re−filed the pleading as a Motion for Briefing Schedule 30 . In the future when filing multiple pleadings within one filing, please refer to the ECF Manual "Filing Other Types of Documents" for the correct procedure; No further steps required by counsel. cc: COR (AKR) (Entered: 05/30/2006)
31 NOTICE OF WITHDRAWAL OF MOTION FOR DEFAULT JUDGMENT 26 by Brian Keith Moore (AKR) (Entered: 05/31/2006)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: 31 Notice of Withdrawal of Motion for Default Judgment by Plaintiff (AKR) (Entered: 05/31/2006)
32 RESPONSE in Opposition re 30 MOTION For Briefing Schedule by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher filed by Brian Keith Moore. (Balliet, Susan) Additional attachment(s) added on 6/1/2006 (Ratliff, Kay). (Entered: 05/31/2006)
NOTICE OF DOCKET MODIFICATION TO S. Balliet re 32 Response in Opposition to Motion ; Error: Proposed Order was filed together with the response in opposition instead of as separate attachment; Entry made by attorney; Correction: Clerk has added the proposed order as a separate attachment. In future e−filings, the attorney shall file proposed order or each exhibit separately from one another and separate from the main document; No further action required by counsel. cc: COR (AKR) (Entered: 06/01/2006)
33 THIRD NOTICE OF SUPPLEMENTAL INFORMATION by Brian Keith Moore (Attachments: # 1 Exhibit − 6/2/2006 Sortnews.com article)(CBD) (Entered: 06/06/2006)
35 Prisoner Receipt For ORIGINAL Filing Fee; Receipt Number 125427; Balance $ 350.00; Amt Pd 4.50; Into Acct: 5100PL; Balance Due $345.5 (CBD) (Entered: 06/14/2006)
34 ORDER: Moore's Motion 26 for default jgm is DENIED. Dfts directed to file answer to complaint, or responsive pldg w/in 5 business days of entry of this order, Moore's emergency Motion 18 to shorten time dfts are allowed to file resp. to complaint DENIED as MOOT. Court will treat the motion for TRO 5 as Motion for Preliminary Injunction, dfts file Response to relief w/in 10 business days of entry of this Order; Moore file Reply w/in 5 business days of dfts' response filed. Moore filed Motion 7 for TRO preventing dfts from conducting physical exam. This motion will be DENIED. Court ORDERS 1) partie sto hold conf. required by Rule 26(f) w/in 10 business days after entry of this Order. 2) parties fiel report req. by Rule 26(f) w/in 5 business days after Rule26(f) conf. held. Moore's discovery motions 6 8 9 17 DENIED as MOOT. Moore has moved 19 to compel dfts to disclose Ky Dept of Corrections' execution protocol. Parties confer at Rule 26(f) conf. to determine if they can resolve this issue. If they cannot, dfts ORDERED to file response to this motion w/in 25 days of entry of this order. Moore has moved 10 &23 to disqualify Jeffrey Middendorf as counsel for dfts. Dfts ORDERED to file response to this motion w/in 25 business days of entry os this Order. Moore's emergency motion 16 for oral argument on pending motions and dfts' motion 30 for briefings schedule are DENIED as MOOT. Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 06/14/2006)
Set/Reset Deadlines as to 5 −2 MOTION for Preliminary Injunction by Brian Keith Moore MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore. Responses due by 6/28/2006 Replies due by 7/5/2006. (CBD) (Entered: 06/14/2006)
Set Deadlines/Hearings: Rule 26(f) Meeting Report due by 7/5/2006. (CBD) (Entered: 06/14/2006)
Set/Reset Deadlines as to 23 MOTION to Disqualify Counsel by Brian Keith Moore, 19 MOTION for Disclosure by Brian Keith Moore. Responses due by

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 9 of 33

06/14/2006 06/16/2006 06/16/2006 06/20/2006 06/20/2006 06/28/2006 06/29/2006 06/30/2006 06/30/2006
06/30/2006 06/30/2006 07/03/2006 07/03/2006 07/03/2006
07/03/2006

7/5/2006 (CBD) (Entered: 06/14/2006)
Set/Reset Deadlines as to 10 MOTION for Order by Brian Keith Moore. Responses due by 7/5/2006 (CBD) (Entered: 06/14/2006)
36 MOTION to Intervene as Plaintiff−Intervenor by Jeffrey Leonard (Attachments: # 1 Exhibit 1 − Order from USDC−EDAR 5:06−cv−110SWW/JFF# 2 Exhibit 2 − Order from USDC−EDOH 2:04−cv−1156# 3 Exhibit 3 − Proposed Intervenor Complaint USDC−EDKY# 4 Proposed Order)(AKR) (Entered: 06/16/2006)
37 RESPONSE to Motion re 36 to Intervene by Jeffrey Leonard filed by Brian Keith Moore. (AKR) (Entered: 06/16/2006)
38 ANSWER to Complaint by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Findings of Fact and Conclusions of Law − Franklin Circuit 04−CI−1094)(CBD) (Entered: 06/20/2006)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se for review of 38 Answer to Complaint. (CBD) (Entered: 06/20/2006)
39 MOTION to Strike portions of 38 Answer to Complaint by Brian Keith Moore Responses due by 7/16/2006 (Attachments: # 1 Proposed Order)(CBD) (Entered: 06/28/2006)
40 MOTION for Leave to File Reply to Answer by Brian Keith Moore (Attachments: # 1 Proposed Order # 2 Tendered Reply to Answer)(CBD) (Entered: 06/30/2006)
41 MOTION for Leave by John D. Rees Motion for Leave to File Response by Defendants John D. Rees, et al. (Middendorf, Jeffrey) Additional attachment: Proposed Order added on 7/5/2006 (Dearborn, Christy). (Entered: 06/30/2006)
42 TENDERED − RESPONSE to Motion re 5 MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore filed by Defendants John D. Rees, et al. filed by John D. Rees. (Middendorf, Jeffrey) Modified text to reflect "Tendered"on 7/3/2006 (Dearborn, Christy). (Entered: 06/30/2006)
43 REPORT of Rule 26(f) Planning Meeting. (CBD) (Entered: 07/03/2006)
44 MOTION for Order Granting Preliminary Injunction due to defendants' failure to respond by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 07/03/2006)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: 43 Report of Rule 26(f) Planning Meeting (CBD) (Entered: 07/03/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 44 MOTION for Order granting Preliminary Injunction for failure to respond by Brian Keith Moore (CBD) (Entered: 07/03/2006)
NOTICE OF DEFICIENCY TO J. Middendorf re 41 MOTION for Leave by John D. Rees, 42 Response to Motion, ; attorney has failed to submit a proposed order as an electronic attachment to the motion; attorney shall file the proposed order as an attachment to a "Notice of Filing" within 3 business days − NOTICE OF DOCKET MODIFICATION to 41 Motion for Leave to File Response &42 Response to Motion for TRO and Preliminary Injunction; Errors: (1) main documents were scanned instead of converted into PDF format from the native word application (2) attorney filed Response 42 without leave of the Court; Error made by attorney; Corrections: (1) All pleadings created with a word application shall be converted int o PDF format using PDF conversion software rather than being scanned (2) Clerk has modified text of Response 42 to reflect "Tendered" Attorney advised that until leave is given by the Court the response should not be filed as such, but rather attached electronically to Motion seeking leave to which it relates. (cc: COR) (CBD) (Entered: 07/03/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 41 MOTION for Leave to file Response to Motionf or TRo and Preliminary Injunction by John D. Rees (CBD) (Entered: 07/03/2006)

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 10 of 33

07/03/2006 07/03/2006 07/03/2006 07/05/2006
07/05/2006 07/05/2006
07/10/2006 07/10/2006 07/10/2006 07/11/2006 07/11/2006

45 NOTICE OF FILING by John D. Rees of Proposed Order re 41 Motion for Leave to File Response et al. (Attachments: # 1 Proposed Order Proposed Order Granting Motion for Leave)(Middendorf, Jeffrey) Modified text to state "of Proposed Order re 41 Motion for Leave" and adding link to event which it relates on 7/5/2006 (Dearborn, Christy). (Entered: 07/03/2006)
46 MOTION for Leave to file Response to plaintiff's Motion for Preliminary Injunction by John D. Rees et al. (Attachments: # 1 Tendered Response)(Middendorf, Jeffrey) Modified text by adding "to file Response to pltf's Motion for Preliminary Injunction" and description of attachment on 7/5/2006 (Dearborn, Christy). Additional attachment(s) added on 7/6/2006 (Ratliff, Kay). (Entered: 07/03/2006)
47 RESPONSE in Opposition to 41 MOTION for Leave to file out−of−time Response to pltf's Motion for Preliminary Injunction by John D. Rees filed by Brian Keith Moore. (Attachments: # 1 Proposed Order)(CBD) (Entered: 07/05/2006)
NOTICE OF DEFICIENCY TO J. Middendorf, 46 MOTION for Leave by John D. Rees ; attorney has failed to submit a proposed order as an electronic attachment to the motion; attorney shall file the propsed order as an attachment to a "Notice of Filing" within 3 business days − NOTICE OF DOCKET MODIFICATION TO J. Middendorf re 45 Notice of Filing and 46 Motion for Leave; ERRORS: (1) attoney faile to create link to the event to which DE 45 relates; Error by attorney (2) attorney failed to state what he was filing in DE 45 (3) attchment to DE 46 was insufficiently described "no description given"; CORRECTIONS: (1) Clerk has modified text and added relationship to create link. In the future attorney advised to create link with the existing event to which the pleading realtes. (2) Clerk has modified text to state "Notice of Filing of Proposed Order" Attorney advised to enter additional text into the optional text box to reflect what is being filed when filing a Notice of Filing. (3) Clerk has named attachment. It is necessary that all attachments are adequately described. ex: "no description" (incorrect); Tendered Response (correct.) No futher action required by counsel. (cc: COR) (CBD) (Entered: 07/05/2006)
48 NOTICE OF FILING by John D. Rees re 46 MOTION for Leave by John D. Rees NOTICE OF FILING OF PROPOSED ORDER (Attachments: # 1 Proposed Order Granting Motion for Leave)(Middendorf, Jeffrey) (Entered: 07/05/2006)
49 MOTION for Leave under LR 7.1 to file Reply to defendants' response to Moore's Motion for Preliminary Injunction in Excess of 15 pages by Brian Keith Moore (Attachments: # 1 Tendered Reply# 2 Exhibit 1 to Tendered Reply# 3 Exhibit 2 to Tendered Reply# 4 Exhibit 3 to Tendered Reply# 5 Exhibit 4 to Tendered Reply# 6 Exhibit 5 to Tendered Reply# 7 Exhibit 6 to Tendered Reply# 8 Exhibit 7 to Tendered Reply# 9 Exhibit 8 to Tendered Reply# 10 Exhibit 9 to Tendered Reply# 11 Exhibit 10 to Tendered Reply# 12 Exhibit 11 to Tendered Reply# 13 Proposed Order)(CBD) (Entered: 07/06/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 36 MOTION to Intervene by Jeffrey Leonard (AKR) (Entered: 07/10/2006)
50 MOTION for Protective Order by Ernie Fletcher Emergency Motion for Protective Order, MOTION to Quash by Ernie Fletcher Emergency Motion to Quash Subpoena (Attachments: # 1 Proposed Order Emergency Protective Order)(Harris−Ray, Holly) (Entered: 07/10/2006)
51 RESPONSE to Motion re 36 MOTION to Intervene by Jeffrey Leonard filed by John D. Rees. (Harris−Ray, Holly) (Entered: 07/10/2006)
NOTICE OF DEFICIENCY TO H. Harris−Ray re 51 Response to Motion to Intervene; attorney has failed to type name on the signature line; The name of the Filing User under whose login and password the document is submitted must be preceded by an "s/" and typed in the space where the signature would otherwise appear. No further action required. cc: COR (AKR) (Entered: 07/11/2006)
52 EMERGENCY PROTECTIVE ORDER: 1) subpoena issued on behalf of pltf to secure attendance of Governor Ernie Fletcher for a depo. scheduled 6/13/2006 is quashed 2) pltf prohibited from going forward with the depo. of Governor Fletcher until further order of the Court. Signed by Judge Karen K. Caldwell. (Motions

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 11 of 33

07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/12/2006 07/12/2006
07/12/2006 07/12/2006

terminated: 50 MOTION for Protective Order &MOTION to Quash) (CBD)cc: COR (Entered: 07/11/2006)
53 MOTION for Protective Order by John D. Rees , et al. re: Deposition of Jeffrey Middendorf, MOTION to Quash by John D. Rees , et al. re: Deposition of Jeffrey Middendorf (Attachments: # 1 Proposed Order Emergency Protective Order)(Harris−Ray, Holly) (Entered: 07/11/2006)
54 MOTION for Reconsideration of Order Prohibiting Deposition of Dft, Fletcher re 52 Protective Order by Brian Keith Moore (Attachments: # 1 Proposed Order)(AKR) (Entered: 07/11/2006)
55 MOTION for Protective Order by John D. Rees et al., Emergency Motion for Protective Order re: Deposition of George Million, MOTION to Quash by John D. Rees et al., Emergency Motion to Quash Subpoena re: Depo of George Million (Attachments: # 1 Proposed Order Emergency Protective Order)(Harris−Ray, Holly) (Entered: 07/11/2006)
56 EMERGENCY PROTECTIVE ORDER: 1. The subpoena issued on beh of plaintiff to secure attendance of Jeffrey Middendorf for depo sched for 7/13/06 53 is quashed. 2. Plaintiff is prohibited from going forward with the depo of Jeffrey Middendorf until further order of the Court. Signed by Judge Karen K. Caldwell. (AKR)cc: COR (Entered: 07/11/2006)
57 MOTION for Protective Order by John D. Rees et al., Emergency Motion for Protective Order re: Deposition of John Rees, MOTION to Quash by John D. Rees et al., Emergency Motion to Quash Subpoena re: Depo of John Rees (Attachments: # 1 Proposed Order Emergency Protective Order)(Self, Thomas) (Entered: 07/11/2006)
58 MOTION for Protective Order by John D. Rees et al., Emergency Motion for Protective Order re: Deposition of Dr. Scott Haas, MOTION to Quash by John D. Rees et al., Emergency Motion to Quash Subpoena re: Depo of Dr. Haas (Attachments: # 1 Proposed Order Emergency Protective Order)(Self, Thomas) (Entered: 07/11/2006)
59 MOTION for Protective Order by John D. Rees et al., Emergency Motion for Protective Order re: Deposition of James Schomig, MOTION to Quash by John D. Rees et al., Emergency Motion to Quash Subpoena re: Depo of James Schomig (Attachments: # 1 Proposed Order Emergency Protective Order)(Self, Thomas) (Entered: 07/11/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 55 MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees (AKR) (Entered: 07/12/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 59 MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees, 58 MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees, 57 MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees (AKR) (Entered: 07/12/2006)
60 RESPONSE in Opposition to Motion re 57 MOTION for Emergency Protective Order by John D. Rees MOTION to Quash Subpoena of John D. Rees filed by Brian Keith Moore. (Attachments: # 1 Affidavit of Claire Ruckert# 2 Proposed Order)(CBD) (Entered: 07/12/2006)
NOTICE OF DOCKET MODIFICATION TO H. Harris−Ray &T. Self re 59 MOTION for Protective Order MOTION to Quash, 58 MOTION for Protective Order MOTION to Quash, 55 MOTION for Protective Order MOTION to Quash, 57 MOTION for Protective Order MOTION to Quash, 53 MOTION for Protective Order MOTION to Quash; Error: main documents scanned instead of converted into PDF format directly from native word format; Entry made by attorneys;

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 12 of 33

07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/17/2006 07/17/2006 07/17/2006 07/18/2006 07/18/2006 07/18/2006

Correction: All pleadings created with a word application shall be converted to PDF format using PDF format conversion software rather than being scanned.; No further action required by counsel. (cc: COR) (CBD) (Entered: 07/12/2006)
61 RESPONSE in Opposition re 58 MOTION for Protective Order by John D. Rees MOTION to Quash as to dft Haas by John D. Rees filed by Brian Keith Moore. (Attachments: # 1 Affidavit of Claire Ruckert# 2 Proposed Order)(CBD) (Entered: 07/12/2006)
62 ORDER: 1) subpoena issued to secure attendance of John Rees for depo. scheduled 6/13/2006 is quashed 2) pltf prohibited from going forward with depo. of John Rees until further order of the Court. Signed by Judge Karen K. Caldwell. (terminating 57 Motion for Protective Order, 57 Motion to Quash) (CBD)cc: COR (Entered: 07/12/2006)
63 ORDER: 1) subpoena issued to secure attendance of Dr. Scott Hass for depo. scheduled 6/13/2006 is quashed 2) pltf prohibited from going forward with depo. of Dr. Scott Haas until further order of the Court. Signed by Judge Karen K. Caldwell. (terminating 58 Motion for Protective Order, 58 Motion to Quash) (CBD)cc: COR (Entered: 07/12/2006)
64 ORDER: 1) subpoena issued to secure attendance of James M. Schomig for depo. scheduled 6/13/2006 is quashed 2) pltf prohibited from going forward with depo. of James M. Schomig until further order of the Court. Signed by Judge Karen K. Caldwell. (terminating 59 Motion for Protective Order, 59 Motion to Quash) (CBD)cc: COR (Entered: 07/12/2006)
65 ORDER: 1) subpoena issued to secure attendance of George Million for depo. scheduled for 6/13/2006 is quashed 2) pltf prohibited from going forward with depo of George Million until further order of the Court. Signed by Judge Karen K. Caldwell. (terminating 55 Motion for Protective Order, 55 Motion to Quash) (CBD)cc: COR (Entered: 07/12/2006)
66 RESPONSE in Opposition re 59 MOTION for Protective Order &MOTION to Quash subpoena issued to James M. Schomig by John D. Rees filed by Brian Keith Moore. (Attachments: # 1 Affidavit of Claire Ruckert# 2 Proposed Order)(CBD) (Entered: 07/12/2006)
67 RESPONSE in Opposition re 55 MOTION for Protective Order &MOTION to Quash subpoena issued to George Million by John D. Rees filed by Brian Keith Moore. (Attachments: # 1 Affidavit of Claire Ruckert# 2 Proposed Order)(CBD) (Entered: 07/12/2006)
68 REPLY to Response to Motion re 41 MOTION for Leave by John D. Rees et al., filed by John D. Rees. (Self, Thomas) (Entered: 07/17/2006)
69 RESPONSE to Motion re 39 MOTION to Strike 38 Answer to Complaint by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order Order denying Plaintiff's Motion to Strike Parts of Defendant's Answer)(Self, Thomas) (Entered: 07/17/2006)
70 RESPONSE to Motion re 40 MOTION for Leave to File by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order Denying Plaintiff's Motion for Leave to Reply to Defendants' Answer)(Self, Thomas) (Entered: 07/17/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 41 MOTION for Leave by John D. Rees (AKR) (Entered: 07/18/2006)
71 RESPONSE in Opposition re 23 MOTION to Disqualify Counsel by Brian Keith Moore, 10 MOTION for Order by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order Proposed Order Denying Plaintiff's Motion to Disqualify# 2 Affidavit Affidavit of Jeffrey T. Middendorf)(Harris−Ray, Holly) (Entered: 07/18/2006)
72 RESPONSE to Motion re 44 MOTION for Order by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order Denying Plaintiff's Motion to

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 13 of 33

07/19/2006 07/19/2006 07/20/2006
07/21/2006 07/21/2006 07/21/2006
07/21/2006 07/24/2006 07/24/2006 07/24/2006 07/25/2006 07/31/2006
08/03/2006 08/04/2006 08/08/2006 08/08/2006
08/08/2006

Grant Preliminary Injunction)(Harris−Ray, Holly) (Entered: 07/18/2006)
73 MOTION to Withdraw as Attorney of Record by Susan J. Balliet on behalf of Brian Keith Moore (Attachments: # 1 Proposed Order)(AKR) (Entered: 07/19/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 73 MOTION to Withdraw as Attorney of Record by Brian Keith Moore (AKR) (Entered: 07/19/2006)
74 STRICKEN per Order 86 − REPLY to Response to Motion re 46 MOTION for Leave by John D. Rees filed by Brian Keith Moore. (Barron, David) Modified textand linked to Order 86 on 8/25/2006 (Dearborn, Christy). (Entered: 07/20/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 46 MOTION for Leave to File Response out of time by John D. Rees (AKR) (Entered: 07/21/2006)
75 REPLY to Response to Motion re 39 MOTION to Strike 38 Answer to Complaint by Brian Keith Moore filed by Brian Keith Moore. (Barron, David) (Entered: 07/21/2006)
76 MOTION to Strike 74 Reply to Response to Motion by John D. Rees et al., Motion to Strike Plaintiff's Surreply Responses due by 8/8/2006 (Attachments: # 1 Proposed Order Proposed Order Granting Defendant's Motion to Strike)(Self, Thomas) (Entered: 07/21/2006)
77 REPLY to Response to Motion re 44 MOTION for Order by Brian Keith Moore filed by Brian Keith Moore. (Barron, David) (Entered: 07/21/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 39 MOTION to Strike 38 Answer to Complaint by Brian Keith Moore (AKR) (Entered: 07/24/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 44 MOTION for Order by Brian Keith Moore (AKR) (Entered: 07/24/2006)
78 RESPONSE to Motion re 49 MOTION for Leave by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order re: Plaintiff's Motion To Exceed Page Limit)(Self, Thomas) (Entered: 07/24/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 49 MOTION for Leave by Brian Keith Moore (AKR) (Entered: 07/25/2006)
79 RESPONSE in Opposition re 54 MOTION for Reconsideration re 52 Protective Order, Terminate Motions,, by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order Denying Plaintiff's Motion for Reconsideration)(Self, Thomas) (Entered: 07/31/2006)
***MOTION SUBMITTED TO CHAMBERS of Pro Se/Judge Caldwell for review: 40 MOTION for Leave to File Reply to Answer by Brian Keith Moore (CBD) (Entered: 08/03/2006)
80 MOTION for Discovery by Brian Keith Moore (Attachments: # 1 certification# 2 Proposed Order)(Barron, David) (Entered: 08/04/2006)
81 MOTION to Take Deposition from Jones, Bauer, Hiland, nurses, Simpson, Schomig, execution team, I.V. team, executioner by Brian Keith Moore (Attachments: # 1 Proposed Order)(Barron, David) (Entered: 08/08/2006)
82 MOTION to Compel by Brian Keith Moore documenting of all attempts to draw blood of Moore &have a representative of Moore present at drawing of blood (Attachments: # 1 Proposed Order)(Barron, David) Modified text to include language in italics on 8/9/2006 (Ratliff, Kay). (Entered: 08/08/2006)
83 MOTION to Compel Discovery Under Rule 37 of FRCP by Brian Keith Moore (Attachments: # 1 Exhibit 1 − Certification of Attempt to Resolve Discovery Dispute# 2 Exhibit 2 − Request for Admission# 3 Exhibit 3 − Defendant's

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 14 of 33

08/09/2006 08/16/2006 08/18/2006 08/23/2006 08/23/2006
08/25/2006
08/25/2006 08/25/2006 08/25/2006

Response to Request for Admissions# 4 Exhibit 4 − Interrogatories# 5 Exhibit 5 − Defendant's Response to Interrogatories# 6 Exhibit 6 − Answers to Request for Production of Documents &Interrogatories# 7 Exhibit 7 − Pltfs' First Request for Production of Documents# 8 Exhibit 8 − Dfts Responses to Pltf's Requests for Production of Documents# 9 Exhibit 9 − Rule 26(a)(1) Disclosures# 10 Proposed Order) NOTE: Pg 4 of Exhibit 7 &Pg 2 of Exhibit 8 were not filed in Original or Court Copy(CBD) (Entered: 08/08/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 76 MOTION to Strike 74 Reply to Response to Motion by John D. Rees (AKR) (Entered: 08/09/2006)
84 NOTICE OF APPEARANCEof John C. Cummings as Co−Counsel by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher.(Cummings, John) (Entered: 08/16/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 54 MOTION for Reconsideration re 52 Protective Order, Terminate Motions, by Brian Keith Moore (AKR) (Entered: 08/18/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 80 MOTION for Discovery by Brian Keith Moore (CBD) (Entered: 08/23/2006)
85 MOTION for Extension of Time to File Response/Reply as to 80 MOTION for Discovery by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher with Response tendered as exhibit (Attachments: # 1 Proposed Order Granting Motion for Enlargement of Time# 2 Exhibit Response to Plaintiff's Motion to Disclose Electrocution Protocol# 3 Exhibit Proposed Order Denying Plaintiff's Motion to Disclose Electrocution Protocol)(Cummings, John) (Entered: 08/23/2006)
86 ORDER: 1) Moore's MOTION 19 for disclosure of Ky Dept of Corrections' execution protocol DENIED 2) Moore's motions − MOTION 10 and AMENDED MOTION 23 to disqualify Hon. Jeffrey Middendorf from representing defendants are DENIED. 3) Leonard's MOTION 36 to intervene as plaintiff−intervenor GRANTED and Clerk is directed to file his tendered complaint in record 4) Moore's MOTION 39 to strike parts of dfts' answer is DENIED 5) Moore's MOTION 40 to reply to dfts' answer is DENIED 6) dfts' MOTION(s) 41 and 46 for leave to file response to pltf's Motion for Preliminary Injunction are GRANTED and Clerk directed to file tendered response 42 into the record 7) Moore's MOTION 44 to grant preliminary injunction due to dfts' failure to respond is DENIED 8) Moore's MOTION 49 for leave to reply to dfts' response to Moore's Motion for preliminary injunction in excess of 15 pages is GRANTED 9) Susan Balliet's MOTION 73 to withdraw as attorney for Brian Keith Moore is GRANTED 10) dfts' MOTION 76 to strike pltf's sur−reply to dfts' reply to pltf's response in opposition to dfts' Motion to file out−of−time response is GRANTED. Signed by Judge Karen K. Caldwell. (NOTE: Order − pg 9 directs Clerk to strike sur−reply 74 from the record re: Motion 76 ) (CBD)cc: COR (Entered: 08/25/2006)
87 INTERVENOR COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF, filed by Jeffrey Leonard against Rees, Simpson, Haas, Fletcher and Unknown Executioners.(CBD)DISMISSED per Order [208 Modified text w/ language in bold on 3/20/2008 (CBD). (Entered: 08/25/2006)
88 RESPONSE to Motion re 5 MOTION for Preliminary Injunction by Brian Keith Moore filed by Unknown Executioners, John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (CBD) (Entered: 08/25/2006)
89 REPLY to Response to Motion re 5 MOTION for Preliminary Injunction by Brian Keith Moore filed by Brian Keith Moore. (Attachments: # 1 Exhibit 1 − USDC SDOH Order adted 4/28/2006# 2 Exhibit 2 − Franklin Cir. Ct KY Order dated 11/23/2004# 3 Exhibit 3 − USDC EDAR Order dated 6/26/2006 (Note − duplicate pg 1 of Order)# 4 Exhibit 4 − Morales v. Hickman, 415 F.Supp.2d 1037 (N.D.Cal. 2006)# 5 Exhibit 5 − 12/23/2003 response to open records request by Theodore Shouse# 6 Exhibit 6 − 8/3/2004 response to open records request by David M. Barron# 7 Exhibit 7 − USDC EDNC Order dated 4/7/2006# 8 Exhibit 8 − newspaper articles concerning execution of Joseph Clark# 9 Exhibit 9 − USDC

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 15 of 33

08/25/2006 08/28/2006 08/28/2006 08/28/2006 08/29/2006
08/29/2006 09/05/2006 09/08/2006 09/08/2006 09/11/2006 09/11/2006 09/11/2006 09/12/2006

WDMO docket sheet for civil action 05−4173# 10 Exhibit 10 − USDC WDMO Order dated 6/26/2006# 11 Exhibit 11 − USDC Maryland Declaration of Thomas M. Scalea in 06−cv−149)(CBD) (Entered: 08/25/2006)
Clerk's Note: Docket Entries − 89 Reply to Response to Motion, 88 Response to Motion, 87 Intervenor Complaint filed pursuant to Order 86 . (CBD) (Entered: 08/25/2006)
90 RESPONSE to Motion re 82 MOTION to Compel by Brian Keith Moore filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Plaintiff's Motion is Denied)(Cummings, John) (Entered: 08/28/2006)
91 RESPONSE to Motion re 81 MOTION to Take Deposition from Jones, Bauer, Hiland, nurses, Simpson, Schomig, execution team, I.V. team, executioner by Brian Keith Moore filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Plaintiff's Motion for Leave to Conduct Depositions)(Cummings, John) (Entered: 08/28/2006)
92 MOTION for Extension of Time to File Response/Reply as to 83 MOTION to Compel by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher To respond to Plaintiff's Motion to Compel Discovery under Rule 37 (Attachments: # 1 Proposed Order Granting Defendants' Motion for Extension of Time)(Cummings, John) (Entered: 08/28/2006)
93 RESPONSE in Opposition re 85 MOTION for Extension of Time to File Response to 80 MOTION for Discovery (to disclose portions of KY's electrocution protocol) by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher filed by Jeffrey Leonard, Brian Keith Moore. (Attachments: # 1 Proposed Order # 2 Exhibit − Tendered Reply to Response in Opposition to Motion to Disclose portions of Kentucky Department of Corrections' Electrocution Protocol)(CBD) (Entered: 08/29/2006)
***MOTION SUBMITTED TO CHAMBERS of Caldwell for review: 85 MOTION for Extension of Time to File Response as to 80 MOTION for Discovery (to disclose portions of Ky's electrocution protocol) by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (CBD) (Entered: 08/29/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 92 MOTION for Extension of Time to File Response/Reply as to 83 MOTION to Compel by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (AKR) (Entered: 09/05/2006)
94 REPLY to Response to Motion re 82 MOTION to Compel by Brian Keith Moore filed by Brian Keith Moore. (Barron, David) (Entered: 09/08/2006)
95 REPLY to Response to Motion re 81 MOTION to Take Deposition from Jones, Bauer, Hiland, nurses, Simpson, Schomig, execution team, I.V. team, executioner by Brian Keith Moore filed by Jeffrey Leonard, Brian Keith Moore. (Barron, David) (Entered: 09/08/2006)
***MOTION SUBMITTED TO CHAMBERS of Pro Se/Judge Caldwell for review: 82 MOTION to Compel by Brian Keith Moore (CBD) (Entered: 09/11/2006)
***MOTION SUBMITTED TO CHAMBERS of Pro Se/Judge Caldwell for review: 81 MOTION to Take Deposition from Jones, Bauer, Hiland, nurses, Simpson, Schomig, execution team, I.V. team, executioner by Brian Keith Moore (CBD) (Entered: 09/11/2006)
96 REPLY to 93 Plaintiff's Response in Opposition to Defendants' Motion filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Cummings, John) (Entered: 09/11/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 85 MOTION for Extension of Time to File Response/Reply as to 80 MOTION for Discovery by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas,

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 16 of 33

09/12/2006
09/13/2006 09/13/2006 09/13/2006 09/13/2006 09/13/2006 09/18/2006 10/03/2006
11/27/2006
11/27/2006 11/27/2006 11/27/2006 11/27/2006 11/27/2006 11/27/2006 11/27/2006

Ernie Fletcher (AKR) (Entered: 09/12/2006)
97 RESPONSE to Motion re 83 MOTION to Compel by Brian Keith Moore filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit Deposition of Dr. Steve Hiland# 2 INCORRECT Proposed Order Denying Plaintiff's Motion to Compel Discovery)(Cummings, John) Modified text by adding INCORRECT in front of attachment proposed order on 9/13/2006 (Ratliff, Kay). Additional attachment(s) added on 9/14/2006 (Ratliff, Kay). (Entered: 09/12/2006)
98 NOTICE OF FILING by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher re 97 Response to Motion, Corrected Proposed Order (Attachments: # 1 Proposed Order Denying Plaintiff's Motion to Compel Discovery Under Rule 37)(Cummings, John) (Entered: 09/13/2006)
***FILE SUBMITTED TO CHAMBERS of Pro Se for review pursuant to Judge Caldwell's chambers. (AKR) (Entered: 09/13/2006)
Clerk's Note: KKC chambers advises that Pro Se Clerk will be handling this case and matters should be submitted to Pro Se. (AKR) (Entered: 09/13/2006)
Clerk's Note: Counsel advised Clerk that the proposed order attached to 97 Response to Motion was the incorrect PDF document. Counsel advised to file the correct PDF Proposed Order to a Notice of Filing. (AKR) (Entered: 09/13/2006)
NOTICE OF DEFICIENCY TO J. Cummings re 97 Response to Motion ; the attached proposed order was the wrong PDF image; Error by Attorney; Attorney shall file the correct proposed order as an attachment to a Notice of Filing within 3 business days. cc: COR (AKR) (Entered: 09/13/2006)
99 ANSWER to Intervenor Complaint by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher.(Cummings, John) (Entered: 09/18/2006)
***MOTION SUBMITTED TO CHAMBERS of Pro Se/ KKC for review: 83 MOTION to Compel by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher, AND REALTED MOTION 92 MOTION for Extension of Time to File Reply as to 83 MOTION to Compel by Brian Keith Moore (CBD) (Entered: 10/03/2006)
100 EMERGENCY MOTION to Intervene by Thomas Clyde Bowling (Attachments: # 1 Exhibit Federal dist ct. opinion in Taylor v. Crawford# 2 Exhibit intervenor complaint# 3 Proposed Order proposed order granting motion to intervene)(Barron, David) Modified text to state "Emergency" on 11/28/2006 (Dearborn, Christy). (Entered: 11/27/2006)
101 EMERGENCY MOTION to Intervene by Ralph Baze (Attachments: # 1 Exhibit Fed dist. ct. opinion in Taylor v. Crawford# 2 Exhibit Intervenor Complaint# 3 Proposed Order granting motion to intervene)(Barron, David) Modified text to state "Emergency" on 11/28/2006 (Dearborn, Christy). (Entered: 11/27/2006)
102 RESPONSE to Motion re 100 MOTION to Intervene by Thomas Clyde Bowling filed by Brian Keith Moore. (Barron, David) (Entered: 11/27/2006)
103 RESPONSE to Motion re 101 MOTION to Intervene by Ralph Baze filed by Brian Keith Moore. (Barron, David) (Entered: 11/27/2006)
104 NOTICE OF APPEARANCEof John Palombi on behalf of Thomas Clyde Bowling, Intervenor Plaintiff by Thomas Clyde Bowling.(Palombi, John) (Entered: 11/27/2006)
105 RESPONSE to Motion re 100 MOTION to Intervene by Thomas Clyde Bowling filed by Jeffrey Leonard. (Barron, David) (Entered: 11/27/2006)
106 NOTICE OF APPEARANCEof John Palombi on behalf of Ralph Baze, Intervenor Plaintiff by Ralph Baze.(Palombi, John) (Entered: 11/27/2006)
107 RESPONSE to Motion re 101 MOTION to Intervene by Ralph Baze filed by Jeffrey Leonard. (Barron, David) (Entered: 11/27/2006)

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 17 of 33

11/28/2006
11/28/2006
11/28/2006 12/01/2006 12/01/2006 12/01/2006 12/01/2006
12/04/2006
12/04/2006
12/05/2006 12/05/2006 12/05/2006

NOTICE OF DEFICIENCY TO J. Palombi re 106 NOTICE OF APPEARANCE, 104 NOTICE OF APPEARANCE ; attorney failed to provide certificate of service with both pleadings and page two of both pleadings is blank. Attorney advised that each pleading must have a certificate of service.; Attorney shall file the certificate of service and missing page two filed as attachments to a pleading styled "Notice of Filing" within 3 business days. (cc: COR) (CBD) (Entered: 11/28/2006)
NOTICE OF DOCKET MODIFICATION TO D. Barron re 101 MOTION to Intervene by Ralph Baze, 100 MOTION to Intervene by Thomas Clyde Bowling ; Error: the pleadings were not accurately described; Entry made by attorney; Correction: Clerk has modified the docket text to state "EMERGENCY." In future filings, attorney is advised to enter additional text into the optional text box to reflect the caption of the pleading; No further action required by counsel. (cc: COR) (CBD) (Entered: 11/28/2006)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: 101 EMERGENCY MOTION to Intervene by Ralph Baze, 100 EMERGENCY MOTION to Intervene by Thomas Clyde Bowling (CBD) (Entered: 11/28/2006)
108 NOTICE OF FILING by Ralph Baze re 106 NOTICE OF APPEARANCE (Attachments: # 1 Exhibit Certificate of Service)(Palombi, John) (Entered: 12/01/2006)
109 NOTICE OF FILING by Thomas Clyde Bowling re 104 NOTICE OF APPEARANCE (Attachments: # 1 Exhibit Certificate of Service)(Palombi, John) (Entered: 12/01/2006)
110 MOTION for Discovery by Brian Keith Moore Second Motion for leave to conduct depositions (Attachments: # 1 Proposed Order granting second motion for leave to conduct depositions)(Barron, David) (Entered: 12/01/2006)
111 RESPONSE in Opposition re 101 MOTION to Intervene by Ralph Baze, 100 MOTION to Intervene by Thomas Clyde Bowling filed by Unknown Executioners, John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit 1 − Complaint in Case No. 04−CI−1094# 2 Exhibit 2 − Opinion and Order in Case No. 2005−SC−000162−OA# 3 Exhibit 3 − Opinion of the Court in Appeal No. 2005−SC−0543−MR# 4 Proposed Order Denying Motions to Intervene of Baze and Bowling)(Cummings, John) (Entered: 12/01/2006)
112 REPLY to Response to Motion re 101 MOTION to Intervene by Ralph Baze filed by Ralph Baze. (Attachments: # 1 Exhibit Exhibit 1: Defendants' Motion to Dismiss in Baze v. Rees# 2 Exhibit Exhibit 2: Franklin Circuit Court Order in Baze v. Rees Denying Defendants' Motion to Dismiss# 3 Exhibit Exhibit 3: Franklin Circuit Court Order in Baze v. Rees granting motion to stay Bowling's Nov. 30, 2004 execution)(Barron, David) (Entered: 12/04/2006)
113 REPLY to Response to Motion re 100 MOTION to Intervene by Thomas Clyde Bowling filed by Thomas Clyde Bowling. (Attachments: # 1 Exhibit 1: Defendants' Motion to Dismiss in Baze v. Rees# 2 Exhibit 2: Franklin Circuit Court Order in Baze v. Rees Denying Defendants' Motion to Dismiss# 3 Exhibit 3: Franklin Circuit Court Staying Bowling's November 30, 2004 Execution)(Barron, David) (Entered: 12/04/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 101 Emergency MOTION to Intervene by Ralph Baze (AKR) (Entered: 12/05/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 100 Emergency MOTION to Intervene by Thomas Clyde Bowling (AKR) (Entered: 12/05/2006)
114 EMERGENCY MOTION for Leave by Ralph Baze to supplement reply to response to motion to intervene (Attachments: # 1 Exhibit 1: Henderson's reply on motion to stay execution in Sixth Circuit# 2 Exhibit 2: Dec. 4, 2006 en banc order of Sixth Circuit in Henderson v. Taft# 3 Exhibit 3: Ohio's motion in SCOTUS to vacate stay of execution# 4 Exhibit 4: Henderson's response in SCOTUS opposing motion to vacate stay of execution# 5 Exhibit 5: Dec. 4, 2006 SCOTUS order in Taft v. Henderson# 6 Proposed Order Exhibit 6: proposed order granting Baze's

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 18 of 33

12/05/2006
12/06/2006 12/06/2006 12/06/2006
12/06/2006 12/06/2006 12/07/2006 12/07/2006 12/08/2006
12/08/2006

motion to supplement reply)(Barron, David) (Entered: 12/05/2006)
115 EMERGENCY MOTION for Leave by Thomas Clyde Bowling to supplement reply to response opposing motion to intervene (Attachments: # 1 Exhibit 1: Henderson's reply to motion for stay of execution in Sixth Circuit# 2 Exhibit 2: Dec. 4, 2006 en banc order of Sixth Circuit in Henderson v. Taft# 3 Exhibit 3: Ohio's motion in SCOTUS to vacate Henderson's stay of execution# 4 Exhibit 4: Henderson's response in SCOTUS opposing motion to vacate stay of execution# 5 Exhibit 5: Dec. 4, 2006 United States Supreme Court order in Taft v. Henderson refusing to vacate stay of execution# 6 Proposed Order Exhibit 6: proposed order granting Bowling's motion to supplement reply)(Barron, David) (Entered: 12/05/2006)
Clerk's Note: Called counsel's ofc and confirmed that Motions 115 EMERGENCY MOTION for Leave by Thomas Clyde Bowling, and 114 EMERGENCY MOTION for Leave by Ralph Baze are "Emergency" motions as this was not stated in caption of either pleading. (CBD) (Entered: 12/06/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 115 EMERGENCY MOTION for Leave to Supplement Reply by Thomas Clyde Bowling, 114 EMERGENCY MOTION for Leave by Ralph Baze to Supplement Reply (CBD) (Entered: 12/06/2006)
116 RESPONSE in Opposition re 114 EMERGENCY MOTION for Leave by Ralph Baze, 115 EMERGENCY MOTION for Leave by Thomas Clyde Bowlingto Supplement Replies of Ralph Baze and Thomas C. Bowling filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit A − Slip Copy, 2006 WL 3043116 (S.D.Ohio)# 2 Proposed Order Denying Motions for Leave to Supplement Reply of Ralph Baze and Thomas Bowling)(Cummings, John) Modified text by adding description of exhibit A on 12/7/2006 (Ratliff, Kay). (Entered: 12/06/2006)
117 REPLY to Response to Motion re 114 EMERGENCY MOTION for Leave by Ralph Bazeto supplement reply to response opposing Baze's motion to intervene filed by Ralph Baze. (Barron, David) (Entered: 12/06/2006)
118 REPLY to Response to Motion re 115 EMERGENCY MOTION for Leave by Thomas Clyde Bowling to supplement reply to response opposing Bowling's intervention filed by Thomas Clyde Bowling. (Barron, David) (Entered: 12/06/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 115 EMERGENCY MOTION for Leave by Thomas Clyde Bowling, 114 EMERGENCY MOTION for Leave by Ralph Baze (AKR) (Entered: 12/07/2006)
NOTICE OF DOCKET MODIFICATION TO J. Cummings re 116 Response in Opposition to Motion ; Error: attachment was insufficiently described as "Exhibit A"; Entry made by attorney; Correction: the Clerk has renamed the attachment. It is necessary that all attachments are adequately described. ex: Exhibit A (incorrect); Exhibit A − Affidavit of John Doe (correct); No further action required by counsel. cc: COR (AKR) (Entered: 12/07/2006)
119 ORDER: 1) Proposed intervenors Baze and Bowling shall file, on or before 1/5/2007, a single, combined supplemental memo., not to exceed 20 pgs, addressing solely any potential application of the Rooker−Feldman doctrine 2) dfts shall file, on or before 1/22/2007, a supplemental memo in response, not to exceed 20 pgs, addressing soley this issue 3) No other or further briefing shall be permitted unless directed by Order of the Court. The matter shall stand submitted for decision upon filing of the dfts' response. Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 12/08/2006)
120 NOTICE OF MANDATORY ECF DIRECTED TO Marguerite Neill Thomas, a non−registered attorney re 119 Order − had to be MAILED TO a non−registered attorney, which is in direct violation of this court's General Orders re: Mandatory ECF. Failure to comply will result in this matter being submitted to the Chief Judge. (cc: COR) (CBD) (Entered: 12/08/2006)

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 19 of 33

12/08/2006 12/13/2006 12/18/2006 12/20/2006 12/21/2006 12/28/2006 12/28/2006 12/28/2006
01/22/2007 01/22/2007 01/23/2007 01/25/2007
02/12/2007

Clerk's Note: ECF Registration form mailed to Marguerite Neill Thomas w/ 120 ECF Mandatory Notice this date. (CBD) (Entered: 12/08/2006)
121 Prisoner Receipt For ORIGINAL Filing Fee; Receipt Number 127559; Balance $ 345.50; Amt Pd 10.00; Into Acct: 5100PL; Balance Due $335.50 (CBD) (Entered: 12/15/2006)
122 RESPONSE in Opposition re 110 MOTION for Discovery by Brian Keith Moore Second Motion for Leave to Conduct Depositions filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Plaintiff's Second Motion for Leave to Conduct Depositions)(Cummings, John) (Entered: 12/18/2006)
123 REPLY to Response to Motion re 110 MOTION for Discovery by Brian Keith MooreMoore's Second Motion to Take Depositions filed by Brian Keith Moore. (Barron, David) (Entered: 12/20/2006)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk/Judge Caldwell for review: 110 MOTION for Discovery ( Second Motion for leave to conduct depositions) by Brian Keith Moore (CBD) (Entered: 12/21/2006)
124 NOTICE OF FILING by Jeffrey Leonard Prison Grievance Rejection Notice (Attachments: # 1 Exhibit Leonard's Grievance Rejection Notice)(Barron, David) (Entered: 12/28/2006)
125 NOTICE OF FILING by Thomas Clyde Bowling re 100 MOTION to Intervene by Thomas Clyde Bowling Bowling's Notice of Filing of Prison Grievance Rejection Notice (Attachments: # 1 Exhibit Bowling's Grievance Rejection Notice)(Barron, David) (Entered: 12/28/2006)
126 RALPH BAZE AND THOMAS CLYDE BOWLING'S BRIEF ON THE APPLICATION OF THE ROOKER−FELDMAN DOCTRINE TO THEIR MOTIONS TO INTERVENE − NOTICE OF FILING by Thomas Clyde Bowling, Ralph Baze re 119 Order,,, 101 MOTION to Intervene by Ralph Baze, 100 MOTION to Intervene by Thomas Clyde Bowling Baze and Bowling Supp. Memo App. Rooker/Feldman to intervene, ordered 12/8 (Attachments: # 1 Exhibit Complaint under 42 U.S.C. 1983 filed in Hill v. Crosby)(Barron, David) Modified text to better describe caption of document on 12/29/2006 (Dearborn, Christy). (Entered: 12/28/2006)
127 RESPONSE BRIEF to 119 Rooker−Feldman Doctrine filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order dismissing action with prejudice)(Harris−Ray, Holly) Additional attachment(s) added on 1/23/2007 (Ratliff, Kay). (Entered: 01/22/2007)
128 NOTICE OF FILING by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher re 127 RESPONSE BRIEF (Attachments: # 1 Exhibit 1 Findings of Fact, Conclusions of Law Civil Action No. 04−CI−01094# 2 Exhibit 2 Supreme Court Opinion Case No. 2005−SC−0543−MR)(Harris−Ray, Holly) (Entered: 01/22/2007)
129 MOTION to Strike 128 Notice of Filing,, 127 RESPONSE BRIEF, by Jeffrey Leonard, Brian Keith Moore (Attachments: # 1 Proposed Order Granting Moore and Leonard's motion to strike part of Defendants' Rooker−Feldman Memorandum)(Barron, David) (Entered: 01/23/2007)
130 MOTION for Leave by Jeffrey Leonard, Brian Keith Moore Moore &Leonard Motion to File Response Defendants' RookerFeldman Memo (Attachments: # 1 Proposed Order granting Moore and Leonard motion to file response to Defendants' Rooker−Feldman memorandun# 2 Exhibit Tendered Response by Moore and Leonard to Defendants' Rooker−Feldman Memorandum# 3 Proposed Order denying Defendants' Request to Apply Rooker−Feldman Doctrine to Moore and Leonard)(Barron, David) (Entered: 01/25/2007)
131 RESPONSE in Opposition re 129 MOTION to Strike 128 Notice of Filing,, 127 RESPONSE BRIEF, by Jeffrey Leonard, Brian Keith Moore filed by Unknown Executioners, John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Plaintiffs Moore's and Leonard's Motion to Strike Portions of Defendants' Rooker−Feldman

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 20 of 33

02/12/2007
02/14/2007 02/14/2007 02/15/2007 02/15/2007 03/05/2007 03/14/2007 03/19/2007 03/23/2007 03/30/2007

Memorandum)(Cummings, John) (Entered: 02/12/2007)
132 RESPONSE in Opposition re 130 MOTION for Leave by Jeffrey Leonard, Brian Keith Mooreto File Response Defendants' RookerFeldman Memo filed by Unknown Executioners, John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Plaintiffs Moore's and Leonard's Joint Motion for Leave to FIle a Response to Defendants' Rooker−Feldman Memorandum)(Cummings, John) Modified text w/ language italics to better descibe doc. on 2/13/2007 (Dearborn, Christy). (Entered: 02/12/2007)
133 REPLY to Response to Motion re 129 MOTION to Strike 128 Notice of Filing,, 127 RESPONSE BRIEF, by Jeffrey Leonard, Brian Keith MooreReply to Response opposing Plaint motion strike Def. Rooker−Feldman brief filed by Jeffrey Leonard, Brian Keith Moore. (Barron, David) (Entered: 02/14/2007)
134 REPLY to Response to Motion re 130 MOTION for Leave by Jeffrey Leonard, Brian Keith MooreReply to Response opposing Plaintiffs motion file resp. Def. Rooker brief filed by Jeffrey Leonard, Brian Keith Moore. (Barron, David) (Entered: 02/14/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 129 MOTION to Strike 128 Notice of Filing,, 127 RESPONSE BRIEF, by Jeffrey Leonard, Brian Keith Moore (AKR) (Entered: 02/15/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 130 MOTION for Leave to File Response by Jeffrey Leonard, Brian Keith Moore (AKR) (Entered: 02/15/2007)
135 MOTION for Leave to File by Jeffrey Leonard, Brian Keith Moore brief on application of Cooey case to statute of limitation defense (Attachments: # 1 Exhibit United States v. Swan (D. Neb. 2004)# 2 Proposed Order granting leave to brief application of Cooey v. Strickland to S/L)(Barron, David) (Entered: 03/05/2007)
136 Prisoner Receipt For ORIGINAL Filing Fee; Receipt Number 128684; Balance $ 335.50; Amt Pd 24.00; Into Acct: 5100PL; Balance Due $311.50 (CBD) (Entered: 03/15/2007)
137 MOTION to Intervene by Roger Dale Epperson Epperson motion to intervene in Moore v. (Attachments: # 1 Exhibit Epperson tendered intervenor complaint# 2 Proposed Order granting Epperson's motion to intervene in Moore v. Rees)(Barron, David) (Entered: 03/19/2007)
138 RESPONSE in Opposition re 135 MOTION for Leave to File by Jeffrey Leonard, Brian Keith Mooreto file brief on application of Cooey case to statute of limitation defense filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order denying Plaintiffs' Joint Motion for Leave to File Brief)(Cummings, John) (Entered: 03/23/2007)
139 MEMORANDUM OPINION &ORDER: 1. Moore's Motion for a preliminary injunction 5 barring Dfts from carrying out his execution is DENIED. 2. Moore's motion for the Court to reconsider it prior order quashing deposition subpoena for KY Gov Ernie Fletcher 54 is DENIED. 3. Dfts' motion for an extension of time to file their response to Moore's mtn to compel them to disclose electrocution protocol 85 is GRANTED. The Clerk of Court is directed to file the tendered response into the record. 4. Moore's motion to compel Dfts to disclose KY's electrocution protocol 80 is DENIED. 5. Moore's motions for permission to dispose Dft execution team members 81 110 are GRANTED. 6. Dfts' motion for an extension of time to file their response to Moore's motion to compel discovery 92 is GRANTED. The Clerk of Court is directed to file the tendered response into the record. 7. Moore's motion to compel the Dfts to gather data during their attempts to draw blood from Moore 82 is DENIED. 8. Moore's motion to compel the Dfts to provide answers to his discovery requests 83 is GRANTED in PART and DENIED in PART. 9. The parties shall file briefs addressing solely those issues identified in Section VII of this Memorandum as follows: Plf, Moore's brief is due on or before 4/18/07; Dfts' brief is due on or before 5/16/07; Plf, Moore's reply is due on or before 5/30/07. No other or further briefing shall be permitted

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 21 of 33

04/02/2007 04/02/2007 04/05/2007
04/05/2007
04/06/2007 04/06/2007 04/06/2007 04/16/2007
04/16/2007 04/18/2007

unless directed by Order of Court. The matter will stand submitted for decision upon filing of Moore's reply. 10. All forms of discovery in this action shall be stayed pending further orders of the Court. Signed by Judge Karen K. Caldwell. (AKR)cc: COR (Entered: 03/30/2007)
140 RESPONSE to 80 MOTION for Discovery to Disclose Electrocution Protocol filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. FILED oer Order 139 (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/02/2007)
Clerk's Note re item #6 of 139 Memorandum Opinion &Order directing Clerk "to file the tendered response into the record" : Response was not tendered w/ Motion 92 . Said response was filed on record at DE 97 . (CBD) (Entered: 04/02/2007)
141 RESPONSE in Opposition re 137 MOTION to Intervene by Roger Dale Epperson filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Roger Dale Epperson's Motion to Intervene)(Cummings, John) Additional attachment(s) added on 4/9/2007 (Ratliff, Kay). (Entered: 04/05/2007)
142 REPLY to Response to Motion re 137 MOTION to Intervene by Roger Dale EppersonEpperson's reply to Def. Response Opposing Epperson's Motion Intervene filed by Roger Dale Epperson. (Attachments: # 1 Exhibit KY Supreme Ct. docket sheet in Epperson v. Commonwealth)(Barron, David) Additional attachment(s) added on 4/17/2007 (Ratliff, Kay). (Entered: 04/05/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 137 MOTION to Intervene by Roger Dale Epperson (CBD) (Entered: 04/06/2007)
143 NOTICE OF FILING by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher re 141 Response in Opposition to Motion, (Attachments: # 1 Affidavit of Sharon Brassfield)(Cummings, John) (Entered: 04/06/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 135 MOTION for Leave to File by Jeffrey Leonard, Brian Keith Moore (AKR) (Entered: 04/06/2007)
144 MOTION for Leave by Roger Dale Epperson to file supplemental reply to Def. response opposing Epperson intervening (Attachments: # 1 Exhibit supplemental reply to Def. response opposing Epperson intervention# 2 Exhibit Epperson Grievance rejection notice# 3 Proposed Order proposed order granting Epperson leave supplemental reply on intervention)(Barron, David) (Entered: 04/16/2007)
145 NOTICE OF FILING by Roger Dale Epperson re 142 Reply to Response to Motion,, 141 Response in Opposition to Motion,, 143 Notice of Filing Prison Grievance Rejection Notice (Attachments: # 1 Exhibit Epperson's Grievance Rejection Notice)(Barron, David) (Entered: 04/16/2007)
146 BRIAN KEITH MOORE'S MEMORANDUM OF LAW ON WHETHER HIS "BAD VEINS" PREVENT HIS EXECUTION AND WHETHER THE STATUTE OF LIMITATIONS BARS HIS CLAIMS (BRIEF) by Brian Keith Moore re 139 Memorandum Opinion &Order Moore's Memo of Law on Whether Bad Veins Prevent his Execution and on S/L (Attachments: # 1 Exhibit Declaration of Dr. Mark Heath# 2 Exhibit Curriculum vitate of Dr. Mark Heath# 3 Exhibit Complaint in Cooey v. Taft# 4 Exhibit Notice that exhibit 4 −− 1999 execution protocol being filed under seal# 5 Exhibit Defendants' Response to Production of Documents and Interrogatories in Baze v. Rees# 6 Exhibit In re Harding/Dept. Corrections# 7 Exhibit Dec. 23, 2003 Response to Open Records Request by Ted Shouse# 8 Exhibit Aug 3, 2004 Response to Open Records Request by David M. Barron# 9 Exhibit April 7, 2006 Response to Open Records Request by David M. Barron# 10 Exhibit Notice that exhibit 10 − − 2004 execution protocol is being filed under seal# 11 Exhibit Notice that exhibit 11 − − 2004 revised execution protocol is being filed under seal# 12 Exhibit Oct. 24, 2004 Order in Baze v. Rees# 13 Exhibit Defendants' Notice of Filing of Unredacted Execution protocol under seal in Baze v. Rees# 14 Exhibit Order and Opinion in Baze v. Rees, dated Feb. 11, 2005# 15 Exhibit notice that exhibit 15 −− 2006 execution protocol is being filed under seal# 16 Exhibit Notice of Agreed Substitution of Counsel in Moore v. Simpson# 17 Exhibit Order in Harbison v. Little# 18 Exhibit List of chemicals and equipment on

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 22 of 33

04/18/2007
04/18/2007 04/19/2007 04/19/2007
04/20/2007 05/04/2007 05/07/2007 05/08/2007
05/08/2007 05/08/2007 05/09/2007

Banyan Stat Kit 700 crash cart# 19 Exhibit Lethal injection IV Site Placement form for execution of Edward Harper# 20 Exhibit Excerpts from Deposition of Haeberlin in Baze v. Rees)(Barron, David) Modified text to include "RESPONSE BRIEF" on 4/19/2007 (Ratliff, Kay). Modified text to better describe document on 5/18/2007 (Dearborn, Christy). (SEALED Exhibits 4, 10, 11 &15 SEP VOL − filed per Order 206 ) Modified text on 3/17/2008 (CBD). (Entered: 04/18/2007)
147 MOTION for leave to file under Seal Kentucky Execution Protocols (Exhibits 4, 10, 11 &15 to DE 146 ) re 139 Memorandum Opinion &Order, 146 Response Brief, by Brian Keith Moore Motion to File Kentucky Execution Protocols Under Seal (Exhibits 4, 10, 11 &15 to DE 146 ) (Attachments: # 1 Proposed Order granting motion to file execution protocols under seal)(Barron, David) Modified text to better describe document on 4/20/2007 (Dearborn, Christy). (Entered: 04/18/2007)
148 MOTION for Leave by Jeffrey Leonard Leonard's Motion to Allow Case to Proceed Moore's Complaint is Dismissed (Attachments: # 1 Proposed Order denying as moot Leonard's motion to allow case to proceed if Moore's Complaint is Dismissed# 2 Proposed Order granting Leonard's motion to allow case to proceed if Moore's Complaint is Dismissed)(Barron, David) (Entered: 04/18/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 147 MOTION to Seal Document 139 Memorandum Opinion &Order, Terminate Motions, Set Motion and RRDeadlines/Hearings,,,,,,,,,,,,,,,,,,,,,, 146 Notice of Filing,,,,,, by Brian Keith Moore (AKR) (Entered: 04/19/2007)
NOTICE OF DOCKET MODIFICATION TO D. Barron re 146 Notice of Filing; Error: Attorney incorrectly filed this pleading as a Notice of Filing; Entry made by attorney; Correction: Clerk has modified the docket text of 146 to state "RESPONSE BRIEF". In the future, the attorney is advised to contact the ECF help desk if assistance is needed in choosing the correct event for filing; No further action required by counsel. cc: COR (AKR) (Entered: 04/19/2007)
Clerk's Note: 4/18/2007 Clerk rec'd Tendered Sealed Exhibits (Exhibit 4, 10, 11, 15 to 146 Response Brief) re 147 MOTION for leave to file under Seal Kentucky Execution Protocols. Tendered documents will be maintained under seal in Clerk ofc.(CBD) (Entered: 04/20/2007)
149 RESPONSE to Motion re 144 MOTION for Leave by Roger Dale Epperson filed by Unknown Executioners, John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order denying Epperson's Motion to file supplemental reply to Def's Response to motion to intervene.)(Cummings, John) (Entered: 05/04/2007)
150 RESPONSE in Opposition re 148 MOTION for Leave by Jeffrey Leonardto allow case to proceed on his behalf if Moore's complaint is dismissed filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1Proposed Order)(Cummings, John) Modified text to include description of attachment on 5/8/2007 (Ratliff, Kay). (Entered: 05/07/2007)
NOTICE OF DOCKET MODIFICATION TO J. Cummings re 150 Response in Opposition to Motion ; Error: attachment was not described; Entry by attorney; Correction: the Clerk has renamed the attachment. It is necessary that all attachments are adequately described. ex: Exhibit A (incorrect); Exhibit A − Affidavit of John Doe (correct); No further action required by attorney. cc: COR (AKR) (Entered: 05/08/2007)
151 REPLY to Response to Motion re 148 MOTION for Leave by Jeffrey Leonardcase proceeding on behalf of Leonard if Moore's Complaint dismissed filed by Jeffrey Leonard. (Barron, David) (Entered: 05/08/2007)
152 NOTICE by Jeffrey Leonard Leonard's Notice of Withdrawal of Allegation in his Complaint (Barron, David) (Entered: 05/08/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 148 MOTION for Leave to allow case to proceed if Court dismisses Moore's Complaint by Jeffrey Leonard (AKR) (Entered: 05/09/2007)

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 23 of 33

05/16/2007 05/17/2007
05/17/2007 05/18/2007 05/18/2007
05/21/2007 05/30/2007

153 MOTION for Extension of Time by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher TO FILE DEFENDANTS' BRIEF PURSUANT TO COURTS MARCH 30, 2007 ORDER (Attachments: # 1 Proposed Order GRANTING Defendants' Motion for Extenstion of Time# 2 Memorandum in Support of Defendants' Motion for Extension of Time)(Cummings, John) (Entered: 05/16/2007)
154 BRIEF ADDRESSING ISSUES IDENTIFIED IN THE COURT'S MEMORANDUM OPINION AND ORDER ENTERED MARCH 30, 2007 (Response to 139 ) Brief Addressing Issues Identified in March 30, 2007 Order filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit 1 − Findings of Fact# 2 Exhibit 2 − Opinion of the Court# 3 Exhibit 3 − ODRC policy 001−09 effective 11−21−01# 4 Exhibit 4 − ODRC policy effective 7−17−03# 5 Exhibit 5 − ODRC policy effective 10−11−06# 6 Exhibit 6 − CPP 9.5 effective 12−17−98# 7 Exhibit 7 − ODRC letter dated 11−19−02# 8 Exhibit 8 − ODRC letter date 5−30−02# 9 Exhibit 9 − DOC letter dated 5−14−02# 10 Exhibit 10 − Open Records letter 8−03−04)(Cummings, John) SEE DE 155 for Exhibits 11−5 Modified text to better describe document and add link to Cont Exh.s at DE 155 on 5/18/2007 (Dearborn, Christy). (Entered: 05/17/2007)
155 CONTINUED EXHIBITS to 154 (Response to 154 ) CONTINUED EXHIBITS 11 − 15 TO DOCUMENT NUMBER 154, DEFENDANTS' BRIEF filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit 11 − Cleveland Plain Dealer article# 2 Exhibit 12 − Lexington Herald Leader Article# 3 Exhibit 13 − Response in Baze and Bowling v. Rees# 4 Exhibit 14 − Deposition of Richard Pershing# 5 Exhibit 15 − Deposition of Warden Glenn Haeberlin)(Cummings, John) Modified text to better describe document on 5/18/2007 (Dearborn, Christy). Additional attachment(s) added on 5/18/2007 (Dearborn, Christy). (Entered: 05/17/2007)
156 ORDER: Motion 153 is granted. Dfts are granted an ext of time to &including 5/17/2007, to file their Brief addressing the issues identified in Court's Memorandum Opnion and Order 139 of 3/30/2007. Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 05/18/2007)
NOTICE OF DOCKET MODIFICATION TO John Cummings re 155 Continued Exhibits 10 DE 154; Error 1: Exhibit 15 exceeds the 2MB size limit; Entry by attorney; Correction: Clerk has separated the PDF image into two segments, each less than 2MB and entered the corrected exhibit as separate attachments identified as Exhibits 15−1 and 15−2. Counsel is reminded that large documents may not upload properly into ECF or download within a reasonable amount of time, therefore, documents over 2MB must be broken down into 2MB or less segments. Error 2: All pages of Exhibit 12 and pages 7−9 of Exhibit 13 were sideways; Entry by attorney; Correction: Clerk has rotated the pages and entered the corrrected documents as separate attachments. At the browse screen within ECF, the attorney should always open and view each PDF document before proceeding witht the filing. No further action required by counsel. cc: COR (CBD) (Entered: 05/18/2007)
***MOTION SUBMITTED TO CHAMBERS of Pro Se for review: 144 MOTION for Leave to file supplemental reply to Def. response opposing Epperson intervening by Roger Dale Epperson (CBD) (Entered: 05/21/2007)
157 REPLY BRIEF to 155 , 139 , 154 , 146 Def. Brief on if Moore's Bad Veins Prevents LI and appl. of S/L filed by Brian Keith Moore. (Attachments: # 1 Exhibit Second Declaration of Dr. Heath# 2 Exhibit Florida Lethal Injection Protocol as of May 9, 2007# 3 Exhibit California Execution Protocol as of May 2007# 4 Exhibit 1997 Bard Port Implanted Port Catheters Manufactuer Instructions# 5 Exhibit 2004 Bard Port and X−Port Manufacturer Instructions# 6 Exhibit Bard Systems Hohn Central Venous Catheters Instructions for Use# 7 Exhibit News Article − − After States' Longest Delay, Man Executed for Cellmate Murder# 8 Exhibit News Article − − Ohio Executes Man for Killing Cellmate# 9 Exhibit Testimony of Dr. Haas in Baze v. Rees# 10 Exhibit Deposition of Dr. Rafi in Baze v. Rees# 11 Exhibit Testimony of Dr. Hiland in Baze v. Rees# 12 Exhibit Testimony of Nurse Service Administrator Wood in Baze v. Rees# 13 Exhibit Fraknlin Cir. Ct. Findings of Fact and Conclusions of Law in Baze v. Rees# 14 Exhibit Franklin Cir.

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 24 of 33

05/30/2007 05/31/2007 08/14/2007 08/23/2007 08/23/2007 08/24/2007 08/25/2007 08/25/2007
08/25/2007 08/26/2007

Ct. Order denying Motion to Dismiss in Baze v. Rees# 15 Exhibit page 246 of Denno law review article# 16 Exhibit page 146 of Denno law review article# 17 Exhibit page 222 of Denno law review article# 18 Exhibit Plaintiffs' First Set of Interrogatories in Baze v. Rees# 19 Exhibit Plaintiffs' First Request for Production of Documents in Baze v. Rees# 20 Exhibit page of 181 of Denno law review article# 21 Exhibit Defendants' Response to Discovery Motions in Baze v. Rees# 22 Exhibit Plaintiffs' Second Set of Interrogatories in Baze v. Rees# 23 Exhibit Defendants' Answer to Second Set of Interrogatories in Baze v. Rees# 24 Exhibit Excerpts from testimony of Dr. Dershwitz in Baze v. Rees# 25 Exhibit Excerpts from testimony of Dr. Heath in Baze v. Rees# 26 Exhibit Deposition of Dr. Haas in Baze v. Rees# 27 Exhibit Deposition of Nurse Chanin Hiland in Baze v. Rees# 28 Exhibit Email communication between Daniel Auld and the Kentucky Department of Corrections# 29 Exhibit Declaration of Daniel Auld# 30 Exhibit Defendants' July 11, 2005 Response to Auld Open Records Request# 31 Exhibit Attachment to Defendants' July 11, 2005 Response to Auld Open Records Request)(Barron, David) Additional attachment(s) added on 5/31/2007 (Ratliff, Kay). (Entered: 05/30/2007)
158 NOTICE OF FILING by Brian Keith Moore re 157 REPLY BRIEF,,,,,,,,, Correct exhibit #3 to docket entry #157 − − Moore's Reply Brief (Attachments: # 1 Exhibit May 2007 California Execution Protocol)(Barron, David) (Entered: 05/30/2007)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: re: 139 Memorandum Opinion &Order, 154 RESPONSE, 146 Notice of Filing, 155 RESPONSE, and 157 REPLY BRIEF − schedule as set out in 139 complete. (AKR) (Entered: 05/31/2007)
159 FIRST MOTION to Expedite by Ralph Baze Motion to Expedite Ruling on Baze's Motion to Intervene (Attachments: # 1 Proposed Order granting Baze's motion to expedite ruling on his motion to intervene)(Barron, David) (Entered: 08/14/2007)
160 NOTICE by Ralph Baze Ralph Baze's execution has been set for September 25, 2007 (Attachments: # 1 Exhibit Execution warrant on Ralph Baze)(Barron, David) (Entered: 08/23/2007)
161 EMERGENCY MOTION to Expedite by Ralph Baze Amended Motion to Expedite Ruling on Ralph Baze's Motion to Intervene (Attachments: # 1 Proposed Order granting Baze's motion to expedite ruling on his motion to intervene)(Barron, David) (Entered: 08/23/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 161 EMERGENCY MOTION to Expedite Ruling on Motion to Intervene by Ralph Baze (Execution date set for 9/25/07). (AKR) (Entered: 08/24/2007)
162 EMERGENCY MOTION to Compel by Ralph Baze Motion to Compel Defendants to Conduct Background Checks on Execution Team (Attachments: # 1 Proposed Order granting motion to compel Defendants to conduct background checks on execution team)(Barron, David) (Entered: 08/25/2007)
163 EMERGENCY MOTION lift order staying discovery re 139 Memorandum Opinion &Order, Terminate Motions, Set Motion and RRDeadlines/Hearings,,,,,,,,,,,,,,,,,,,,, by Ralph Baze Baze's Motion to Lift Order Staying Discovery (Attachments: # 1 Proposed Order granting Baze's motion to lift order staying discovery)(Barron, David) (Entered: 08/25/2007)
164 EMERGENCY MOTION FOR SCHEDULING STATUS ORDER by Ralph Baze Baze's emergency motion for status conference and scheduling order (Attachments: # 1 Proposed Order granting motion for a status conference and scheduling order)(Barron, David) (Entered: 08/25/2007)
165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze motion for preliminary injunction pending Supreme Court decision in Cooey (Attachments: # 1 Memorandum in Support of motion for preliminary injunction for Baze pending Cooey cert.# 2 Exhibit 1 − 6CCA order denying motion to vacate Biros injunction# 3 Exhibit 2 − SCOTUS order denying motion to vacate Biros injunction# 4 Exhibit 3 − SDOH order granting Carter preliminary injunction# 5 Exhibit 4 − Jackson v. Taylor# 6 Exhibit 5 − 6CCA Docket sheet Cooey v. Strickland# 7 Exhibit 6 −

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 25 of 33

08/26/2007 08/26/2007 08/27/2007 08/27/2007
08/29/2007
08/29/2007 08/30/2007 08/30/2007 08/30/2007 08/31/2007 08/31/2007

6CCA order staying mandate in Cooey pending cert.# 8 Exhibit 7 − United States v. Swan# 9 Exhibit 8 − Wing Shing Prods. v. Simatelex# 10 Exhibit 9 − In re Literary Works# 11 Exhibit 10 − Marbury v. Colonial Mortgage# 12 Exhibit 11 − KK Motors v. Brunswick)(Barron, David) Additional attachment, PO added on 8/27/2007 (Dearborn, Christy). Modified text to better describe pleading on 8/27/2007 (Dearborn, Christy). Additional attachment(s) added on 8/28/2007 (Ratliff, Kay). (Entered: 08/26/2007)
166 NOTICE OF FILING by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze proposed order granting preliminary injunction pending Cooey cert (Attachments: # 1 Proposed Order granting Baze a preliminary injunction barring his execution pending cert. in Cooey)(Barron, David) (Entered: 08/26/2007)
167 EMERGENCY MOTION to Compel by Ralph Baze motion to compel Defendants to disclose current execution protocol (Attachments: # 1 Proposed Order granting motion to compel disclosure of current execution protocol)(Barron, David) (Entered: 08/26/2007)
168 NOTICE OF FILING by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze additional exhibits to motion for preliminary injunction pending Cooey (Attachments: # 1 Exhibit Motion to reset execution date in Cooey# 2 Exhibit Ohio Supreme Court order refusing to schedule Cooey's execution during LI litigation)(Barron, David) (Entered: 08/27/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell and PSLC for review: 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 167 EMERGENCY MOTION to Compel by Ralph Baze, 164 EMERGENCY MOTION FOR SCHEDULING STATUS ORDER by Ralph Baze, 163 EMERGENCY MOTION lift order staying discovery re 139 Memorandum Opinion &Order by Ralph Baze, 162 EMERGENCY MOTION to Compel by Ralph Baze (CBD) (Entered: 08/27/2007)
169 STRICKEN per Order 208 − RESPONSE in Opposition re 159 FIRST MOTION to Expedite by Ralph Baze, 161 EMERGENCY MOTION to Expedite by Ralph Baze filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Motion to Expedite [DN 159] and Emergency Motion to Expedite [DN 161])(Cummings, John) Additional attachment(s) added on 8/30/2007 (Ratliff, Kay). Modified on 3/17/2008 (CBD). (Entered: 08/29/2007)
170 NOTICE OF FILING by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher re 169 Response in Opposition to Motion, (Attachments: # 1 Exhibit 1 − Petition for Writ of Certiorari)(Cummings, John) Additional attachment(s) added on 8/31/2007 (Ratliff, Kay). (Entered: 08/29/2007)
171 REPLY to Response to Motion re 159 FIRST MOTION to Expedite by Ralph Baze, 161 EMERGENCY MOTION to Expedite by Ralph Baze filed by Ralph Baze. (Attachments: # 1 Exhibit Docket Sheet in Cooey v. Taft et al.)(Palombi, John) (Entered: 08/30/2007)
172 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze motion for injunction until court can decide Baze's motion to intervene (Attachments: # 1 Proposed Order granting motion for injunction until court can decide motion to intervene)(Barron, David) (Entered: 08/30/2007)
173 NOTICE OF FILING by John D. Rees re 170 Notice of Filing (Attachments: # 1 Exhibit Certificate of Service)(Cummings, John) (Entered: 08/30/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 172 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 159 FIRST MOTION to Expedite by Ralph Baze. (AKR) (Entered: 08/31/2007)
174 ORDER: Baze's original and amended motions to expedite 159 (Motion to Expedite Court's ruling on Baze's Motion to Intervene) 161 (Emeregency Amended Motion to Expedite Court's ruling on Baze's Motion to Intervene) are GRANTED. It is anticipated Court will enter order adressing Baze's Motion to Intervene 101

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 26 of 33

08/31/2007 08/31/2007 09/01/2007 09/01/2007
09/01/2007

and related motion for additional briefing 114 and 130 in the near future. Signed by Judge Karen K. Caldwell. (CBD)cc: COR Modified text on 9/4/2007 (Dearborn, Christy). (Entered: 08/31/2007)
175 MOTION to Strike 169 Response in Opposition to Motion, by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (Attachments: # 1 Memorandum in Support of Motion to Strike# 2 Proposed Order Granting Motion to Strike# 3 Amended Response In Opposition)(Cummings, John) (Entered: 08/31/2007)
176 NOTICE OF FILING by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 174 Order on Motion to Expedite,, 168 Notice of Filing,, 101 MOTION to Intervene by Ralph Baze, 166 Notice of Filing, cert. petition filed in Cooey v. Strickland (Attachments: # 1 Exhibit certiorari petition in Cooey v. Strickland)(Barron, David) (Entered: 08/31/2007)
177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze motion for injunction based on underlying merits of lethal injection claim (Attachments: # 1 Proposed Order granting injunction pursuant to All Writs Act# 2 Proposed Order granting injunction based on four factor test for injunctions)(Barron, David) (Entered: 09/01/2007)
178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze motion to file excess pages memo of law on injunction LI claim on merits (Attachments: # 1 Proposed Order granting leave to file motion for injunction on merits of LI claim in excess of page limits# 2 Exhibit memo of law in support emergency motion for injunctio pending resolution LI claim on merits# 3 Exhibit List of exhibits to memo of law in support of injunction pending merits ruling on LI claim# 4 Exhibit # 1 − − Lex. Herald Leader article on Gov. stmt on signing Baze death warrant# 5 Exhibit #2 − − CNN article −− lethal injection creator suggests changing the chemicals# 6 Exhibit #3 − − news article on Newton execution# 7 Exhibit #4 − − second news article on Newton execution# 8 Exhibit #5 − − Testimony of Dorian Hall in Evans v. Saar# 9 Exhibit #6 − − Liptak article on Clark execution# 10 Exhibit #7 −− CNN article on Clark execution# 11 Exhibit #8 − − Toledo Blade article on Clark execution# 12 Exhibit #9 −− Plain Dealer article on Clark execution# 13 Exhibit #10 − − Florida Commission Report on Diaz execution# 14 Exhibit #11 − − Dupree Declaration# 15 Exhibit news article on Diaz execution# 16 Exhibit #13 − − second news article on Diaz execution# 17 Exhibit Middendort national television interview# 18 Exhibit notice that exhibits 15−36, 37−51, and 52−66 are filed separately as notice of filings)(Barron, David) (Entered: 09/01/2007)
179 NOTICE OF FILING by Ralph Baze re 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze emergency −−−exhibits 15−36 to memo of law support injunction on LI merits (Attachments: # 1 Exhibit #15 −− Dr. Concannon Aff. in Brown v. Beck# 2 Exhibit #16 − − Dr. Concannon curriculum vitae# 3 Exhibit #17 − − Third Declaration of Dr. Heath# 4 Exhibit Dr. Heath curriculum vitae# 5 Exhibit #19 − − Furnish v. Commonwealth# 6 Exhibit #20 − − sodium thiopental manufacturer's package insert# 7 Exhibit #21 − − Dr. Concannon Declaration in Morales# 8 Exhibit #22 − − Dr. Geiser Affidavit# 9 Exhibit #23 − − Dr. Geiser curriculum vitae# 10 Exhibit #24 − − Report of the AVMA Panel on Euthanasia# 11 Exhibit #25 − − 8th Annual Report on the Oregon Death With Dignity Act# 12 Exhibit #26 − − ASA Practice Advisory for Intraoperative Awarenee and Brain Function Monitoring# 13 Exhibit #27 part I −− book chapter on monitoring depths of anesthesia# 14 Exhibit #27 part II − − Book chapter on monitoring depths of anesthesia# 15 Exhibit #28 − − May 2007 California execution protocol# 16 Exhibit #29 − − List of items on Banyon Stat Kit 700 crash cart# 17 Exhibit #30 − − Lethal injection I.V. site placement form on Eddie Harper# 18 Exhibit #31 − − toxicology results on Harper's right axilla# 19 Exhibit #32−− Harper toxicology results −vena cava# 20 Exhibit #33 − − Harper toxicology results − − heart# 21 Exhibit #34 − − excerpt from Disposition of Toxic Drugs and Chemicals in Man# 22 Exhibit Defendant Fletcher stmt. on intent to sign Baze death warrant# 23 Exhibit #36 − − Defendants' Rule 26 disclosures)(Barron, David) (Entered: 09/01/2007)

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 27 of 33

09/01/2007
09/01/2007
09/04/2007 09/04/2007 09/06/2007 09/07/2007 09/10/2007 09/10/2007

180 NOTICE OF FILING by Ralph Baze re 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 179 Notice of Filing,,,,,,,, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze emergency − − exhibits 37−51 to memo of law support of injunction LI merits (Attachments: # 1 Exhibit #37 −− Testimony of executioner in Evans v. Saar# 2 Exhibit #38 − − Morales v. Tilton# 3 Exhibit #39 −− Cooey v. Taft (Hill injunction)# 4 Exhibit #40 − − Taylor v. Crawford# 5 Exhibit #41 − − Cooey v. Taft (Biros injunction)# 6 Exhibit #42 − − Cooey v. Taft (Carter injunction)# 7 Exhibit #43 − − Docket sheet in Cooey in district ct.# 8 Exhibit #44 − − Morales v. Hickman# 9 Exhibit #45 − − order granting Bowling injunction in 2004 in Baze and Bowling v. Rees# 10 Exhibit #46 − − Technical Report: effect of pancuronium on solubility of sodium thiopental# 11 Exhibit #47 − − Rocconi Declaration# 12 Exhibit #48 − − execution log for Anderson execution# 13 Exhibit #49 − − exhibit log for Babbit execution# 14 Exhibit #50 − − execution log for Siripongs execution# 15 Exhibit #51 − − execution log for Rich execution)(Barron, David) (Entered: 09/01/2007)
181 NOTICE OF FILING by Ralph Baze re 180 Notice of Filing,,,,, 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 179 Notice of Filing,,,,,,,, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze emergency − − exhibit 52−66 of memo of law support injunction on LI merits (Attachments: # 1 Exhibit #52 − − Brown v. Beck# 2 Exhibit #53 − − Adcock Affidavit# 3 Exhibit #54 − − Stevens Affidavit# 4 Exhibit #55 − − Wells Affidavit# 5 Exhibit #56 − − McHone toxicology results# 6 Exhibit #57 − − Syriani toxicology results# 7 Exhibit #58 − − Boyd toxicology results# 8 Exhibit #59 − − Simpson toxicology results# 9 Exhibit #60 − − Dr. Lubarsky's curriculum vitae# 10 Exhibit #61 − − Inadequate Anesthesia in Lethal Injection by Execution − − Lancet medical journal article# 11 Exhibit #62 − − Lubarsky Affidavit in Harbison# 12 Exhibit #63 − − news article on Steckel execution in Delaware# 13 Exhibit #64 − − Jackson v. Taylor# 14 Exhibit #65 − − Patterson Declaration on Babbit execution# 15 Exhibit #66 − − Dorian Hall Affidavit on Clark execution)(Barron, David) (Entered: 09/01/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se Law Clerk for review: 175 MOTION to Strike 169 Response in Opposition to Motion, by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (AKR) (Entered: 09/04/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell / Pro Se Law Clerk for review: 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze. (AKR) (Entered: 09/04/2007)
182 NOTICE by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 174 Order on Motion to Expedite,,,,,, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 172 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 160 Notice NOTICE THAT BAZE'S EXECUTION IS AT 7 P.M. CENTRAL TIME ON SEPT. 25TH (Barron, David) (Entered: 09/06/2007)
183 NOTICE OF FILING by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 174 Order on Motion to Expedite,,,,,, 101 MOTION to Intervene by Ralph Baze supplemental exh. to motion for injunction pending Cooey−−Biros' cert. pet. (Attachments: # 1 Exhibit petition for writ of certiorari in Biros v. Strickland (S/L issue))(Barron, David) (Entered: 09/07/2007)
***FILE SUBMITTED TO CHAMBERS of PRO SE LAW CLERK for review: 183 Notice of Filing supplemental exhibit to emergency motion for prel inj 165 , motion to expedite 174 &motion to intervene 101 . (AKR) (Entered: 09/10/2007)
184 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze Baze's motion for preliminary injunction pending Biros v. Strickland (Attachments: # 1 Exhibit 6th cir. docket sheet in Biros v. Strickland# 2 Exhibit Ohio's merits brief in Biros v. Strickland# 3 Exhibit Biros' merits brief in Biros v. Strickland# 4 Exhibit proposed order granting Baze a preliminary injunction pending outcome of Biros v. Strickland)(Barron, David) (Entered: 09/10/2007)

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 28 of 33

09/11/2007 09/11/2007 09/12/2007 09/13/2007 09/13/2007 09/14/2007 09/25/2007
09/25/2007 09/26/2007

***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se Law Clerk for review: 184 EMERGENCY MOTION for Preliminary Injunction pending Biros v. Strickland by Ralph Baze. (AKR) (Entered: 09/11/2007)
185 MOTION to Withdraw as Attorney by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (Attachments: # 1 Proposed Order Granting Defendants' Motion to Withdraw)(Cummings, John) (Entered: 09/11/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 185 MOTION to Withdraw as Attorney (Holly Harris−Ray) by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (AKR) (Entered: 09/12/2007)
186 ORDER: that Defendant's Motion 185 to withdraw as atty of record is granted. ( Attorney Holly Harris−Ray terminated) . Signed by Judge Karen K. Caldwell. (AKR)cc: COR, Holly Harris−Ray. Modified text to include "to withdraw as atty of record" for better description of pleading on 9/13/2007 (Ratliff, Kay). (Entered: 09/13/2007)
187 NOTICE by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 174 Order on Motion to Expedite,,,,,, Motions Submitted, 101 MOTION to Intervene by Ralph Baze, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 172 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 184 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze Commonwealth has sought reconsideration of Baze's stay of execution (Barron, David) (Entered: 09/13/2007)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se Law Clerk for review: 187 Notice of Commonwealth seeking reconsideration of Supreme Court stay. (AKR) (Entered: 09/14/2007)
188 MEMORANDUM OPINION &ORDER: 1. Baze's Mtn for leave to supplement Baze's Reply to Response in Oppostion to Emergency Mtn to Intervene (dkt 114 ) is GRANTED. 2. Plfs, Moore &Leonards's Joint Mtn to Strike Portions of Dfts' Rooker−Feldman Memorandum that argue Moore &Leonard's suit should be dismissed (dkt 129 ) is DENIED; their "Joint Mtn for leave to file a response to Dfts' Rooker−Feldman Memorandum" (dkt 130 ) is GRANTED. 3. Baze's "Emergency Mtn to Intervene as Plf−Intervenor" (Dkt 101 ) is DENIED. 4. Following mtns by prop intervenor Ralph Baze: a. "Emergency Mtn to Compel Dfts to conduct approp background checks on all present members of execution team &to disclose to counsel for Baze all non−identifying results of those checks" (Dkt 162 ) ; b. "Emergency Mtn to partially lift order staying discovery" (Dkt 163 ); c. "Emergency Mtn for a status conference on litigation concerning Ralph Baze &for a scheduling order setting dealines to respond to motions &to comply with any discovery" (Dkt 164 ); d. "Emergency Mtn for a preliminary injunction barring Ralph Baze's execution pending the Supreme Court of the US's disposition of the petition for certiorari in Cooley v. Strickland" (Dkt 165 ); e. "Emergency Mtn to compel dft to disclose a copy of execution protocol it intends to use to execute Ralph Baze" (Dkt 167 ); f. "Emergency Mtn for a preliminary injunction barring Ralph Baze's execution pending a ruling on his motion to intervene" (Dkt 172 ); g. "Emergency Mtn for a preliminary injunction barring Ralph Baze's execution pending resolution of the merits of his challenge to dfts' lethal injection chemicals &procedures" (Dkt 177 ); and h. "Emergency Mtn for leave under Local Rule 7.1 to file a memorandum of law in excess of 40 pages in support of Ralph Baze's emergency mtn for preliminary injunction pending resolution of the merits of his challenge to dfts' lethal injection chemicals &procedures" (Dkt 178 ) are DENIED AS MOOT. 5. This is a final and appealable order and there is no just cause for delay. Signed by Judge Karen K. Caldwell. (AKR)cc: COR, fax to KY Supreme Court (Entered: 09/25/2007)
189 RESPONSE to Defendants' Rooker−Feldman Memorandum 127 filed by Jeffrey Leonard, Brian Keith Moore. filed pursuant to order of Court re: 188 . (AKR) (Entered: 09/26/2007)
190 MEMORANDUM OPINION &ORDER: 1. Bowling's "Motion for Leave to Supplement Thomas Clyde Bowling's Reply to Response in Opposition to Emergency Mtn to Intervene as Plf−Intervenor" (Dkt 115 ) is GRANTED. 2.

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 29 of 33

09/26/2007 10/01/2007
10/01/2007 10/01/2007 10/22/2007 10/24/2007 10/24/2007 10/25/2007 10/29/2007
11/13/2007 11/14/2007 11/15/2007

Bowling's "Emergency Motion to Intervene as Plf−Intervenor" (Dkt 100 ) is DENIED. 3. This is a final and appealable order and there is no just cause for delay.. Signed by Judge Karen K. Caldwell. (AKR)cc: COR (Entered: 09/26/2007)
191 ORDER: Plfs' "Joint Motion for Leave to File a Brief on the Application of the Affirmative Defense of Statute of Limitations in Light of Cooey v. Strickland, Decided by the Sixth Circuit on March 2, 2007" (Dkt 135 ) is DENIED AS MOOT. Signed by Judge Karen K. Caldwell. (AKR)cc: COR (Entered: 09/26/2007)
192 MEMORANDUM OPINION AND ORDER: IT IS ORDERED AS FOLLOWS: 1. Epperson's 144 "MOTION for Leave to File Supplemental Reply to Defendants' Response in Opposition to Roger Dale Epperson's Motion to Intervene as Plaintiff−Intervenor" is GRANTED; 2. Roger Dale Epperson's 137 "MOTION to Intervene as Plaintiff−Intervenor is GRANTED &the Clerk is directed to file his tendered Intervenor Complaint into the record. Signed by Judge Karen K. Caldwell. (MWZ)cc: COR (Entered: 10/01/2007)
193 SUPPLEMENTAL REPLY To 141 Response In Opposition To Roger Dale Epperson's 137 Motion To Intervene As Plaintiff−Intervenor filed by Roger Dale Epperson. (Ordered filed per 192 Memorandum Opinion &Order.) (Attachments: # 1 Exhibit Epperson Grievance rejection notice)(MWZ) (Entered: 10/02/2007)
194 Intervenor COMPLAINT For Declaratory Judgment And Injunctive Relief, filed by Roger Dale Epperson. (Ordered filed per 192 Memorandum Opinion &Order.)(MWZ) (Entered: 10/02/2007)
195 ANSWER to Intervenor Complaint by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher.(Cummings, John) (Entered: 10/22/2007)
196 NOTICE OF APPEAL as to 190 Memorandum Opinion &Order, Terminate Motions,,, 188 Memorandum Opinion &Order, Terminate Motions,,,,,,,,,,,,,,,,,, by Thomas Clyde Bowling, Ralph Baze. (Palombi, John) (Entered: 10/24/2007)
197 MOTION for Leave to Appeal in forma pauperis by Thomas Clyde Bowling, Ralph Baze (Attachments: # 1 Affidavit Baze Affidavit of Indigency# 2 Affidavit Bowling Affidavit of Indigency# 3 Proposed Order Order Granting IFP Status)(Palombi, John) (Entered: 10/24/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se Law Clerk for review: 197 MOTION for Leave to Appeal in forma pauperis by Thomas Clyde Bowling, Ralph Baze. (AKR) (Entered: 10/25/2007)
198 ORDER: 1) Ralph Baze and Thomas Bowling's Motion to Proceed In Forma Pauperis onAppeal [Dkt. 197] is DENIED, without prejudice 2) Ralph Baze and Thomas Bowling may file a renewed application to proceed in forma pauperis on appeal that complies with the requirements of 28 U.S.C. 1915 and Fed. R. App. P. 24 within 15 days of the entry of this Order. Signed by Judge Karen K. Caldwell. (CBD)cc: COR, 6CCA, SKV (Entered: 10/29/2007)
199 MOTION for Leave to Appeal in forma pauperis by Thomas Clyde Bowling, Ralph Baze (Attachments: # 1 Proposed Order # 2 Exhibit Baze Inmate Account Statement# 3 Exhibit Bowling Inmate Account Statement# 4 Exhibit Baze Affidavit of Indigency# 5 Exhibit Bowling Affidavit of Indigency)(Palombi, John) (Entered: 11/13/2007)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk for review: 199 MOTION for Leave to Appeal in forma pauperis by Thomas Clyde Bowling, Ralph Baze (CBD) (Entered: 11/14/2007)
200 ORDER: Appellant's (Ralph Baze) Motion 199 for Leave to Appeal in forma pauperis is GRANTED 2) appellant required to pay full appellate filing fee of $455.00 3) appellant assessed an initial partial filing fee of $37.89; amt shall be pd to Clerk of this Court 4) prisoner's cutodian shall submit 20% of prisoner's income for the preceding month, but only when the amt exceeds $10.00, until full appellate filing fee has been paid 5) Clerk serve copy of this order upon Jialer/Warden of the institution in which the appellant is currently confined and upon the Clerk of the United States Courtof Appeals for the Sixth Circuit. Signed by Judge Karen K.

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 30 of 33

11/15/2007
11/16/2007 11/19/2007 11/21/2007 11/26/2007 11/26/2007 12/11/2007 12/12/2007 01/29/2008 01/30/2008 03/17/2008

Caldwell. (CBD)cc: COR, 6CCA, Finance, SKV, Warden of KY State Penitentiary (Entered: 11/15/2007)
201 ORDER: Appellant's (Thomas Clyde Bowling) Motion 199 for Leave to Appeal in forma pauperis is GRANTED 2) appellant required to pay full appellate filing fee of $455.00 3) appellant assessed an initial partial filing fee of $33.25; amt shall be pd to Clerk of this Court 4) prisoner's cutodian shall submit 20% of prisoner's income for the preceding month, but only when the amt exceeds $10.00, until full appellate filing fee has been paid 5) Clerk serve copy of this order upon Jialer/Warden of the institution in which the appellant is currently confined and upon the Clerk of the United States Court of Appeals for the Sixth Circuit. Signed by Judge Karen K. Caldwell. (CBD)cc: COR, 6CCA, Finance, SKV, Warden of Ky State Penitentiary (Entered: 11/15/2007)
202 MOTION for Reconsideration re 201 Order Directing Prisoner Payment,,,, 200 Order Directing Prisoner Payment, Terminate Motions,,,,,, by Thomas Clyde Bowling, Ralph Baze (Attachments: # 1 Proposed Order)(Palombi, John) (Entered: 11/16/2007)
203 ORDER: (1) Ralph Baze &Thomas Bowling's Motion to Reconsider 202 is DENIED . Signed by Judge Karen K. Caldwell. (AKR)cc: COR, 6CCA, Vrolijk (Entered: 11/19/2007)
204 MOTION to Withdraw as Attorney by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (Attachments: # 1 Proposed Order Granting Motion)(Cummings, John) (Entered: 11/21/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se for review: 204 MOTION to Withdraw as Attorney by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (AKR) (Entered: 11/26/2007)
205 ORDER: 1. Jeffrey T. Middendorf's Motion to Withdraw [Dkt 204] is GRANTED Motion to Withdraw as Attorney. (Attorney Jeffrey T. Middendorf terminated). Signed by Judge Karen K. Caldwell on 11/26/2007. (AKR)cc: COR (Entered: 11/26/2007)
206 MOTION to Withdraw by Jeffrey Leonard motion to withdraw as intervenor plaintiff due to commutation of death sentence Motions referred to Pro Se. (Attachments: # 1 Exhibit Governor's order commuting Leonard's death sentence, # 2 Proposed Order granting Leonard's motion to withdraw from case)(Barron, David) (Entered: 12/11/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 206 MOTION to Withdraw by Jeffrey Leonard motion to withdraw as intervenor plaintiff due to commutation of death sentence. (AKR) (Entered: 12/12/2007)
207 MOTION to Withdraw as Attorney by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher Motions referred to Pro Se. (Attachments: # 1 Proposed Order Granting Motion to Withdraw as Counsel)(Self, Thomas) (Entered: 01/29/2008)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se for review: 207 MOTION to Withdraw as Attorney by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (AKR) (Entered: 01/30/2008)
208 ORDER: 1) Brian Keith Moore's Motion 147 to File Kentucky Execution ProtocolUnder Seal is GRANTED 2) Jeoffrey Leonard's Motion 206 to Withdraw as Intervenor Plaintiff is GRANTED. Intervenor Complaint filed by Jeffrey Leonard is DISMISSED WITH PREJUDICE. Jgm shall be ent contemporaneously herewith. 3) Jeffrey Leonard's Motion 148 to Allow Case to Proceed on his Behalfif this Court Dismisses Brian Keith Moore's Complaint is DENIED AS MOOT. 4) Defendants' Motion to Strike Defendants' Response in Opposition to MovantRalph Baze's Motions to Expedite Ruling on Baze's Emergency Motion to Intervene as Plaintiff−Intervenor, and to File Amended Response in Opposition to the Motion 175 is GRANTED. Clerk of the Court shall STRIKE from the Record the Defendants' original Response 169 and shall FILE the Defendants' tenderedAmended Response 175 (pt.4) into the record. 5) Proposed Intervenor Ralph Bazes Emergency Motion for a Preliminary Injunction Barring Ralph Baze's

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 31 of 33

03/17/2008 03/17/2008 03/17/2008
04/21/2008 05/09/2008
05/20/2008 05/21/2008 08/07/2008
08/25/2008
09/03/2008 09/03/2008

Execution Pending Disposition of Biros v. Strickland, which the Sixth Circuit has Set for Oral Argument on November 1, 2007 184 is DENIED AS MOOT 6) Thomas L. Self's Motion to Withdraw as Counsel [Record No. 207] isGRANTED. Signed by Judge Karen K. Caldwell on 3/17/2008.(CBD)cc: COR, 6CCA, SKV (Entered: 03/17/2008)
Attorney Update. Attorney Thomas L. Self terminated. (CBD) (Entered: 03/17/2008)
209 AMENDED RESPONSE IN OPPOSITION TO MOVANT RALPH BAZES MOTION 159 TO EXPEDITE RULING ON BAZES EMERGENCY MOTION 161 TO INTERVENE AS PLAINTIFF−INTERVENOR filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (CBD) (Entered: 03/17/2008)
210 JUDGMENT: 1) Pltf Jeoffrey Leonard filed a civil rights action pursuant to 42 U.S.C. § 1983 against John Rees; Thomas Simpson; Scott Haas; Governor Ernie Fletcher; and Unknown Executioners 2) Cmp is DISMISSED WITH PREJUDICE 3) Jgm ent in favor of dfts 4) Court certifies any appeal would not be taken in good faith. 5) This is a FINAL AND APPEALABLE Jgm and there is no just cause for delay 6) matter is DISMISSED and STRICKEN. Signed by Judge Karen K. Caldwell on 3/17/2008.(CBD)cc: COR, 6CCA, SKV (Entered: 03/17/2008)
211 MOTION Allow case to proceed despite Baze v. Rees by Brian Keith Moore, Roger Dale Epperson Motions referred to Pro Se. (Attachments: # 1 Proposed Order granting motion to allow case to proceed)(Barron, David) (Entered: 04/21/2008)
212 RESPONSE in Opposition re 211 MOTION Allow case to proceed despite Baze v. Rees by Brian Keith Moore, Roger Dale Epperson filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit 1 − Brief for Petitioners, Page 14, No. 07−5439, # 2 Exhibit 2 − U.S. Supreme Court's September 25, 2007 Order, # 3 Exhibit 3 − U.S. Supreme Court's October 3, 2007 Order, # 4 Proposed Order Denying Petitioners Motion to Allow Case to Proceed On a Limited Basis)(Cummings, John) (Entered: 05/09/2008)
213 REPLY to Response to Motion re 211 MOTION Allow case to proceed despite Baze v. Rees by Brian Keith Moore, Roger Dale Epperson Plaintiffs Moore and Epperson's Joint Reply to Defendants' Response in Opposition to Plaintiffs' Motion to Allow Case to Proceed on a Limited Basis in Light of Baze v. Rees filed by Brian Keith Moore, Roger Dale Epperson. (Barron, David) (Entered: 05/20/2008)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk for review: 211 MOTION Allow case to proceed despite Baze v. Rees by Brian Keith Moore, Roger Dale Epperson. (AKR) (Entered: 05/21/2008)
214 MOTION to Stay by Brian Keith Moore, Roger Dale Epperson Motion to stay proceedings and hold case in abeyance pending outcome of administrative procedures lethal injection appeal Motions referred to Pro Se. (Attachments: # 1 Exhibit #1 − − Order in Morales v. Cate, # 2 Exhibit #2 − − Order in Evans v. Saar, # 3 Exhibit #3 − − joint motion in Evans v. Saar, # 4 Proposed Order granting motion to hold proceedings in abeyance)(Barron, David) (Entered: 08/07/2008)
215 RESPONSE in Opposition re 214 MOTION to Stay by Brian Keith Moore, Roger Dale Epperson Motion to stay proceedings and hold case in abeyance pending outcome of administrative procedures lethal injection appeal filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Plaintiffs' Joint Motion to Hold Proceedings in Abeyance Pending Outcome of Administrative Procedures Lethal Injection Appeal)(Cummings, John) (Entered: 08/25/2008)
216 EX PARTE MOTION for Order by Thomas Clyde Bowling (Motions referred to Pro Se). (AKR) (Entered: 09/03/2008)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk for review: 216 EX PARTE MOTION for Order by Thomas Clyde Bowling (motion w/proposed order mailed to Pro Se Law Clerk). (AKR) (Entered: 09/03/2008)

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 32 of 33

09/04/2008 09/05/2008 03/19/2009 03/25/2009 03/26/2009
03/01/2010 03/01/2010
03/01/2010
03/01/2010 03/02/2010 03/05/2010
03/05/2010

217 REPLY to Response to Motion re 214 MOTION to Stay by Brian Keith Moore, Roger Dale Epperson Motion to stay proceedings and hold case in abeyance pending outcome of administrative procedures lethal injection appeal filed by Brian Keith Moore, Roger Dale Epperson. (Barron, David) (Entered: 09/04/2008)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 214 MOTION to Stay by Brian Keith Moore, Roger Dale Epperson Motion to stay proceedings and hold case in abeyance pending outcome of administrative procedures lethal injection appeal (CBD) (Entered: 09/05/2008)
218 ORDER of USCA as to 196 Notice of Appeal filed by Thomas Clyde Bowling, Ralph Baze: Upon consideration of the appellants motion to voluntarily dismiss the appeal herein pursuant to Rule 42(b), Federal Rules of Appellate Procedure, It is ORDERED that the motion is GRANTED and the appeal is dismissed. (Attachments: # 1 Cover Letter)(CBD) (Entered: 03/19/2009)
219 ORDER: Bowlings ex parte Motion 216 is DENIED AS MOOT. Signed by Judge Karen K. Caldwell on 3/25/2009. (CBD)cc: COR (Entered: 03/25/2009)
220 ORDER: 1. Plaintiffs Joint Motion to Allow Case to Proceed on a Limited Basis in Light of Baze v. Rees, 2008 WL 17733259 211 is DENIED. 2. Plaintiffs Joint Motion to Hold Proceedings in Abeyance Pending Outcome of Administrative Procedures Lethal Injection Appeal 214 is DENIED. Signed by Judge Karen K. Caldwell on 3/26/2009. (CBD)cc: COR Modified text (cleanup) on 3/26/2009 (CBD). (Entered: 03/26/2009)
221 EMERGENCY MOTION for Leave by Roger Dale Epperson, Brian Keith Moore motion for leave to file sealed motion to unseal portions of the 2006 execution protocol Motions referred to Pro Se. (Attachments: # 1 Proposed Order granting leave to file a sealed motion to unseal portions of the 2006 execution protocol)(Barron, David) (Entered: 03/01/2010)
222 SEALED MOTION to unseal portions of the Execution Protocol filed on behalf of Brian Keith Moore re 221 EMERGENCY MOTION for Leave by Roger Dale Epperson, Brian Keith Moore to file sealed motion to unseal portions of the 2006 execution protocol. (MAINTAINED IN PAPER as a SEALED DOCUMENT IN THE CLERK'S OFFICE) (CBD) Modified event to Motion on 3/1/2010 (CBD). (Entered: 03/01/2010)
NOTICE OF DOCKET MODIFICATION TO ALL COUNSEL OF RECORD re 222 MOTION to Unseal Portions of the Execution Protocol; Error: Incorrect event "Tendered Sealed Document" was used for docketing of this pleading; Entry by clerk; Correction: Clerk has re−defined the entry as a Motion, assigned DE No. 222 and modified text to reflect "SEALED Motion" filed as of 3/1/2010; No further action required by counsel cc: COR (CBD) (Entered: 03/01/2010)
223 RESPONSE to 221 Plaintiff's Emergency Motion for Leave to File Sealed Motion to Unseal Portions of Execution Protocols filed by Ernie Fletcher, Scott Haas, John D. Rees, Thomas Simpson, Unknown Executioners. (Cummings, John) (Entered: 03/01/2010)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk for review: re 221 EMERGENCY MOTION for Leave by Roger Dale Epperson, Brian Keith Moore motion for leave to file sealed motion to unseal portions of the 2006 execution protocol (CBD) (Entered: 03/02/2010)
224 NOTICE by Roger Dale Epperson, Brian Keith Moore re 223 RESPONSE, 222 MOTION to Unseal Portions of the Execution Protocol Supplement to emergency motion to unseal portions of Defendants' execution protocol (Attachments: # 1 Exhibit Defendants' response in state court entitled "response in opposition" but saying Defendants do not object to unsealing portions of the execution protocol Plaintiffs request be unsealed)(Barron, David) (Entered: 03/05/2010)
225 EMERGENCY MOTION to Expedite by Roger Dale Epperson, Brian Keith Moore motion to expedite ruling on Plaiintiffs' emergency motion to unseal portions of Defendants' execution protocol, EMERGENCY MOTION for Order by Roger Dale Epperson, Brian Keith Moore motion for order on Plaintiffs' motion to unseal portions of Defendants' execution protocol Motions referred to Pro Se.

Case 3:06-cv-22 As of: 06/07/2013 02:11 PM EDT Page 33 of 33

03/05/2010 03/05/2010
08/02/2010 09/19/2012
10/10/2012 10/10/2012 10/29/2012 10/29/2012 10/30/2012 10/31/2012

(Attachments: # 1 Proposed Order granting Plaintiffs' motion to expedite ruling on unsealing portions of execution protocols)(Barron, David) (Entered: 03/05/2010)
226 SUPPLEMENTAL MOTION to Unseal Document by Roger Dale Epperson, Brian Keith Moore supplement to emergency motion to unseal portions of Defendants' execution protocol [Docket No. 222] Motions referred to Pro Se. (Attachments: # 1 Exhibit Defendants' response in state court entitled "response in opposition" but saying Defendants do not object to unsealing portions of the execution protocol Plaintiffs request be unsealed)(Barron, David) (Entered: 03/05/2010)
227 ORDER: 1. Plaintiffs Emergency Motion for Leave to File a Sealed Motion to Unseal Portions of the Execution Protocols 221 is GRANTED. 2. Plaintiffs Emergency Motion for Ruling and to Expedite Ruling on Plaintiffs Motion to Unseal Portions of the Execution Protocol 225 is GRANTED. 3. Plaintiffs Emergency Motion to Unseal Portions of the Execution Protocols 222 and Emergency Supplement to Emergency Motion to Unseal Portions of the Execution Protocol 226 are DENIED. Signed by Judge Karen K. Caldwell on 3/5/2010. (CBD)cc: COR (Entered: 03/05/2010)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review and possible scheduling: 1 Complaint, 194 Intervenor Complaint (CBD) (Entered: 08/02/2010)
228 ORDER: 1. Within 21 days, plaintiffs Moore and Epperson may file a single memorandum not to exceed fifteen pages in length addressing the matters described herein. 2. Within 21 days thereafter, defendants Rees, Simpson, Haas, and Fletcher may file a single response not to exceed fifteen pages in length. 3. Within 14 days thereafter, plaintiffs Moore and Epperson may file a single reply not to exceed ten pages in length. 4. No further briefing will be permitted without prior order of the Court. 5. The Court will dismiss this case, without prejudice, if no response is timely filed. Signed by Judge Karen K. Caldwell on 9/19/2012.(AKR)cc: COR (Entered: 09/19/2012)
229 INCORRECT − RESPONSE TO ORDER TO SHOW CAUSE by Roger Dale Epperson, Brian Keith Moore 228 filed by Roger Dale Epperson, Brian Keith Moore. (Barron, David) Modified by adding text Incorrect on 10/11/2012 (AKR). SEE DE 230 for correct entry. (Entered: 10/10/2012)
230 RESPONSE TO ORDER TO SHOW CAUSE by Roger Dale Epperson, Brian Keith Moore 228 corrected response to order to show cause filed by Roger Dale Epperson, Brian Keith Moore. (Barron, David) (Entered: 10/10/2012)
231 RESPONSE TO ORDER TO SHOW CAUSE by Ernie Fletcher, Scott Haas, John D. Rees, Thomas Simpson, Unknown Executioners 228 filed by Ernie Fletcher, Scott Haas, John D. Rees, Thomas Simpson, Unknown Executioners. (Attachments: # 1 Proposed Order Dismissing Complaint)(Combs, Brenn) (Entered: 10/29/2012)
Attorney Update. Attorney Brenn Oliver Combs for Ernie Fletcher,Brenn Oliver Combs for Scott Haas,Brenn Oliver Combs for John D. Rees,Brenn Oliver Combs for Thomas Simpson,Brenn Oliver Combs for Unknown Executioners added. (CBD) (Entered: 10/29/2012)
232 REPLY to 231 Reply to Defendants' Response to Show Cause Order filed by Roger Dale Epperson, Brian Keith Moore. (Attachments: # 1 Exhibit Epperson trial docket sheet excerpt)(Barron, David) (Entered: 10/30/2012)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: 230 Response to Order to Show Cause, 231 Response to Response re Order to Show Cause, 232 REPLY re Order 228 to Show Cause (CBD) (Entered: 10/31/2012)

 
 COMMONWEALTH OF KENTUCKY

FRANKLIN CIRCUIT COURT

NO. 06-CI-574

__________________________________________

)

THOMAS CLYDE BOWLING,

)

)

RALPH BAZE,

)

)

and

)

)

BRIAN KEITH MOORE,

Plaintiffs )

)

v.

)

)

KENTUCKY DEPARTMENT

)

OF CORRECTIONS,

Defendant )

)

__________________________________________)

MOTION FOR SUMMARY JUDGMENT

Plaintiffs T.C. Bowling, Ralph Baze and Brian Keith Moore hereby move for summary judgment pursuant to CR 56.01. Plaintiffs move for summary judgment because defendant did not adhere to the proper procedures for promulgating an administrative regulation. In determining the procedures to be followed for lethal injection, the Department of Corrections implemented KRS 431.220, which provides only that lethal injection shall be Kentucky’s method of execution. Defendants do not dispute that they did not adhere to the Kentucky Administrative Procedures Act (APA) and failed to subject the procedures to public notice and hearing. As legislation may not be adopted in secret, implementation of legislation may not be secret. Defendants did not publish the procedure, and it was never subjected to notice and comment. Therefore the procedure is invalid and cannot be used until the Department of Corrections undertakes rulemaking with public notice and comment.

1

Summary judgment should be granted because there are no material issues of fact and because the procedure is an administrative regulation that implements a statute and thus should have been subjected to public notice and comment.
CR 56.01 states that a party may “move with or without supporting affidavits for a summary judgment in his favor.” Summary judgment is judgment as a matter of law, which is appropriate when the case is void of material issues of fact.1 In this case, there are no contested issues of fact. Defendants concede that they did not promulgate a rule for notice and hearing under the statutes pertaining to administrative regulations.
The only remaining question is one of law: whether the procedure implementing KRS 431.220 is an “administrative regulation” within the meaning of Chapter 13A. Since the procedure implements a statute, it falls directly under the definition of an administrative regulation. Moreover, this procedure does not fall under any of the exceptions for rulemaking. Though the statute being implemented does not by its own language call for a rule, the APA already specifies that a procedure implementing a statute is a regulation and should be published and subjected to notice and comment. Finally, the public has an interest in ensuring that this statute is implemented appropriately and in a fair manner. Adherence to proper administrative procedures will guarantee that government is open and that the public receives the opportunity to participate in the process. A. The procedure in question implements a statute and thus is an administrative regulation under KRS 13A.100.
Summary judgment is appropriate because under KRS 13A.100, the lethal injection procedure is an administrative regulation that should have been published in the Administrative Register and subjected to public comment and hearing. KRS 13A.100 states that an administrative body shall prescribe by administrative regulation, “[e]ach statement of general
1 See Cornette v. Com., 899 S.W.2d 502, 505 (Ky. App. 1995); Martin v. Utica Mut. Ins. Co., 697 S.W.2d 951. 952 (Ky. App. 1985).
2

applicability, policy, procedure, memorandum, or other form of action that implements; interprets; prescribes law or policy; describes the organization, procedure, or practice requirements of any administrative body; affects private rights or procedures available to the public.”2
The procedure in question implements a statute, KRS 431.220, which provides only that “every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death.”3 The procedure, which is not and has never been made public, lays out specifically which drugs shall be used and what steps are to be followed to implement this statute. Thus these procedures fall directly under KRS 13A.100. The statute that provides that execution shall be by lethal injection does not delegate unfettered discretion to the Department of Corrections to carry out 431.220 in secret, with no public knowledge or participation. B. The procedure does not affect the internal management of the Department of Corrections but does affect the public and thus does not fall under the exception in KRS 13A.010.
KRS § 13A.010 further defines “administrative regulation,” and explicitly defines which statements are not included in the definition.4 Defendants claim that the procedures fall under subsection (a), because they are statements that concern only the “internal management” of an administrative body, and do not affect “private rights or procedures available to the public.” While there is a dearth of caselaw on the subject in Kentucky, other states have found that policies must deal strictly with administrative agency staff in order to qualify as “internal management.”
2 KRS 13A.100(1) (emphasis added) 3 KRS 431.220(1)(a). 4 KRS 13A.010(2). Subsection (b) excepts declaratory rulings, (c) excepts interdepartmental memoranda, (d) excepts rules dealing with highways, and (e) excepts rules regarding postsecondary education.
3

For example, the Michigan Supreme Court found that the Department of Mental Health’s standard form contract for group homes providing residential services for disabled adults constituted a “rule” which is required to be promulgated pursuant to the Michigan APA.5 Like Kentucky, Michigan provides an exception to rulemaking requirements for statements that “do not affect the rights…of the public.” The court found that because the provisions of the standard form health contract announced DMH standards and policies and implemented and applied the Mental Health Code, it should have been subject to notice and hearing.6
In Nebraska, a Department of Corrections employee was terminated pursuant to a disciplinary regulation for falling asleep. Even though the rule was a disciplinary regulation for employees, the Nebraska Supreme Court found that the policy prescribed a penalty, and thus was a “rule or regulation” under the APA.7 The Nebraska statute provides the same exceptions as Kentucky. Even though the policy was an internal disciplinary rule, the court found that it still had to be promulgated as a rule.8
The Michigan rule implemented a statute and announced an agency’s policies and so required public notice and comment. The Nebraska rule dealt with internal disciplinary procedures, but since it prescribed a penalty, it did not fall under the exception for rules of “internal management”. In short, “[t]he mere fact that a rule relates to agency personnel is not always sufficient to remove it from rulemaking procedures.... The agency carries the burden of justifying its avoidance of notice and comment procedures by showing that the effect of the rule is within the personnel or management classes and is solely internal, with no effect on the
5 M.C.L. § 24.207(g), (j). 6 AFSCME v. Dep't of Mental Health, 550 N.W.2d 190, 193 (Mich. 1996). 7 Neb.Rev.St. §§ 84-901(2). 8 McAllister v. Nebraska Dept. of Correctional Services, 573 N.W.2d 143, 147 (Neb. 1998).
4

public."9 Thus, the Department of Corrections should bear the burden of proving that a rule does not affect the public: a burden which it has not met.
The procedures affect the public in several ways. The procedures that implement KRS 431.220 prescribe the manner by which a condemned prisoner will be executed. Just as every individual is subject to the criminal laws of the Commonwealth, even if they are never prosecuted under them, every member of the public is potentially subject to these injection procedures. Thus every individual in Kentucky has an interest in ensuring that the procedures are fair and provide for the most humane death possible. Additionally, even though most members of the public will never face execution, each person is still affected by the procedures because executions are carried out in the name of the public at large. Thus, the general public, whether personally facing execution or not, has an in interest in the manner Kentucky chooses to employ. Individual members of the public who are interested are entitled to the notice and comment that the APA provides before procedures like these are adopted.
Moreover, individual members of the public may have special expertise or opinions to express at a public hearing on proposed procedures. Doctors and other medical professionals, for example, who cannot participate in an execution, may have valuable opinions that should be heard by the Department of Corrections. Interested individuals have the right to contribute their own knowledge, opinions or proposed alternatives at a public hearing. Obtaining more information from a wide variety of contributors -- to improve the quality of the end result and to ensure that these procedures are as humane as they can be -- is in the interest of every individual. Judge Roger Crittenden, in this very Court, in his findings of fact after a hearing in an action challenging the constitutionality of the lethal injections procedures, discussed the adoption of
9 J. O'Reilly, Administrative Rulemaking § 3.06 at 47-48 (1983).
5

Kentucky’s procedures. 10 He found that in 1998, when Kentucky first drafted these procedures,
“Those persons assigned the initial task of drafting the Commonwealth of Kentucky’s first lethal
injection protocol were provided with little to no guidance on drafting a lethal injection protocol.”11 Additionally, Judge Crittenden noted that in developing the procedures, “the
Commonwealth of Kentucky, Department of Corrections, did not conduct any independent
scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned.”12 In summary, those who developed the
lethal injection procedures “were apparently given the task without the benefit of scientific aid or policy oversight.”13 The current procedures are not public and were developed with no public
input. Members of the public, including members of the medical profession, may have valuable
opinions to add on this issue of great public importance and that APA requires that they be given
the opportunity to participate in the discussion.
Those who drafted the current procedures did so with little guidance and absolutely no
public input. The elected representatives in the legislature have selected lethal injection as the
method and, Judge Crittenden noted, “the duty of implementing these decisions has been
delegated to the personnel who operate the institution where the death chamber is located.” But he recognized that “the ultimate responsibility lies with the citizens.”14 It is the people who have
chosen to impose capital punishment in certain cases, and it is the people who serve on the juries
who recommend the sentences. Thus, as Judge Crittenden stated, “The citizens of this
Commonwealth are entitled to know the method and manner for implementing their public
10 Baze v. Rees, et al, No. 04-CI-01094 (Franklin Cir. Ct. July 8, 2005) (findings of fact and conclusions of law). (attached as Exhibit 1) 11 Plaintiffs acknowledge that this previous action dealt with a completely different question than the one currently at issue, but maintain that Judge Crittenden’s findings, which are quoted at some length in this motion, are nonetheless relevant. 12 Id. at 6. 13 Id. at 12. 14 Id.
6

policy.”15 Judge Crittenden is exactly right. The citizens of Kentucky are entitled to know the method and manner for implementing public policy because the APA specifically allows them to be informed of the method of implementation of statutes and to comment on it. The ultimate responsibility for executions rests with the public and they are entitled to know the manner in which the sentences are carried out.
Security measures taken by the institution are not a reason to classify the procedures as a matter of internal management. The statute says nothing about security and internal security measures are an internal matter. However, the actual procedures for lethal injection, which are a matter of public importance, can be separated from security measures.16 Judge Crittenden concluded with the observation that “there seems to be little reason why the Department of Corrections cannot publish a lethal injection protocol that does not compromise the security of the institution or the personnel involved.”17 The lethal injection procedures do not relate only to the “internal management” of the Department of Corrections but affect the public in many ways. The Department cannot avoid making a rule public by simply claiming that it pertains only to internal management or to security, without further explanation.
The public has a specific interest in knowing how an execution will be carried out, and also has a strong interest in open government. Judge Crittenden, in a separate order in the previous suit, recognized this: “The public interest is best served when the Commonwealth presents and explains its position on the manner and means. Thereafter, the citizens of Kentucky
15 Id. at 13. 16 Other states, including Georgia, Maryland, South Carolina and California, have lethal injection protocols that do not contain the security measures taken by the institution where the procedure is performed. 17 Id. at 13.
7

18
The gravity of the question in this case, that of the method of execution, reinforces the need to guard against arbitrary action. But that is not the only consideration. While the public has an interest in the end result of the promulgation of a rule, they also have an interest in having the proper procedures followed and having the process of rulemaking be public, as required by the APA. The Department of Corrections has the power to implement a statute, but not the power to do so secretly. In reviewing the decisions made by agencies, the role of the courts is not just to evaluate the decision made by an agency, but to ensure that the proper procedures are followed. And here, the Department of Corrections has failed to follow KRS 13A.100(1). C. The legislature has already required every rule that implements a statute to be promulgated as an administrative regulation.
The General Assembly does not need to expressly require within each statute that the methods used to carry out that statute shall be promulgated by regulation. The General Assembly has already specified that “[e]ach statement of general applicability, policy, procedure, memorandum, or other form of action that implements; interprets; prescribes law or policy....or affects private rights or procedures available to the public” shall be prescribed by administrative regulation.19 KRS 13A.100 explicitly states that any procedure that implements a statute shall be promulgated as an administrative regulation. To require each specific statute to be implemented to again say that regulations shall be promulgated would make that part of KRS 13A.100 redundant. The Kentucky lethal injection procedure implements a statute and does not fall under any of the enumerated exceptions. Thus, it must be subject to public notice and comment.
18 Baze v. Rees, No. 04-CI-1094 (Franklin Cir. Ct. Nov. 23, 2004) (order granting temporary injunction). (attached as Exhibit 2) 19 KRS 13A.100(1).
8

D. Adherence to administrative procedures promotes open governance, increases opportunity for public participation and ensures adequate judicial review.
Administrative procedures are integral to fair and open governance. Proper procedures
improve both the quality of agency rules and the opportunity for public notice and participation.
First, public notice and comment improve the quality of agency rulemaking by ensuring that the agency regulations will be tested by exposure to diverse public comment.20 Second, proper
rulemaking processes require an agency to fairly apprise all interested parties of all the significant issues involved, so that they can participate in the process.21 The notice and hearing
procedures further guarantee that the public in general is given an opportunity to participate, to provide information, including data, views, and arguments, as well as to suggest alternatives.22
Adherence to statutory administrative procedures is no less important in state law than in
the federal context. Indeed, adherence to administrative procedure requirements is of special importance to Kentucky, where the Constitution guarantees a judicial remedy.23 Notice and
comment is important in this context because it provides a well-developed record that enhances the quality of judicial review.24 The Kentucky Supreme Court has recognized that “from time immemorial courts have been reviewing administrative decisions.”25 Moreover, where questions of law are involved, the review of the courts cannot be restricted.26 In other words, Kentucky
courts have the inherent power to scrutinize the acts of administrative agencies and tribunals,
particularly regarding questions of law. For this review to be meaningful, administrative bodies
must follow the statutory procedures for rulemaking, in order to create a reviewable record of
their decision.
20 Sprint Corp. v. FCC., 315 F.3d 369, 373 (D.C. Cir. 2003). 21 Fertilizer Institute v. Browner, 163 F.3d 774, 779-80 (3d Cir. 1998). 22 Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150-51 (9th Cir. 2002). 23 Ky. Const. § 14. 24 Sprint Corp, 315 F.3d at 373. 25 Kendall v. Beiling, 175 S.W.2d 489, 491 (1943). 26 Id.
9

The Constitution of Kentucky makes it clear that power is vested in the people and that the Commonwealth’s power is derivative. Section 4 provides that “[a]ll power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property,” and goes on to provide that the people have an indefeasible right to alter or abolish their government. The public has a right to participate in governance and the APA ensures that the public retains that right, even when power is delegated to administrative agencies. Agencies cannot subvert the public’s right to information and participation, just as the legislature cannot make laws in secret.
Moreover, § 2 of the Kentucky Constitution prohibits all arbitrary action by the government. Implementing a statute without going through the process prescribed by law is arbitrary, particularly when the resulting final procedure remains secret. As applied to administrative agencies, § 2 assures Kentucky citizens of fundamentally fair and unbiased procedures.27 However, when agency actions and procedures are secret, citizens cannot know if fairness and due process are satisfied. Secret action must be presumptively arbitrary, because it can never be judged and evaluated. The General Assembly is not allowed to pass laws in secret, and when an administrative agency implements a statute in private, the result is the same. Even emergency regulations, though they have special processes, must be public.28 Bypassing the requirements of notice and comment, when they are required, is essentially governance in secret, which is abhorrent to a system which values the power of the people over all else.
Adoption of rules and regulations outside the requirements specified by statute, without notice and comment, creates no reviewable record, allows decisions to be based on unknown
27 Commonwealth Natural Resources Cabinet v. Kentec Coal Co., Inc. 177 S.W.3d 718, 724 (Ky. 2005); Kentucky Cent. Life Ins. Co. v. Stephens, 897 S.W.2d 583, 591 (Ky. 1995) (the “state, in exercise of its police power, may not unreasonably invade and violate private rights guaranteed under Federal or State Constitutions.”) 28 See KRS § 13A.190(2).
10

considerations, denies the public the opportunity for participation and allows affected individuals no notice. Executive agencies are given the power to implement statutes, but they must do so according to established, public procedures.
11

REQUEST FOR RELIEF The procedure implementing KRS 431.220 must be promulgated as a rule, following the appropriate notice and comment periods. That has not been done. Therefore, T.C. Bowling, Ralph Baze and Brian Keith Moore respectfully request that this court declare the procedure implementing KRS 431.220 invalid and enjoin further use of that procedure unless and until the Department of Corrections properly promulgates a rule implementing the statute.
RESPECTFULLY SUBMITTED,

__________________________ DAVID M. BARRON Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)
June 21, 2006

_________________________ SUSAN J. BALLIET Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 502-564-3948 (office) 502-564-3949 (fax)

12

CERTIFICATE OF SERVICE I hereby certify that on this date, I caused a true and correct copy of the foregoing
MOTION FOR SUMMARY JUDGMENT to be served via first class mail, postage prepaid on the following individuals:

Hon. Jeff Middendorf General Counsel Department of Corrections 125 Holmes St. Frankfort, KY 40601

June 21, 2006

___________________________ COUNSEL FOR PLAINTIFF

13

 
 COPY

COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT DIVISION I CASE NO. 06-CI-00574

ENTERED

DEC 272006

THOMAS C. BOWLING,

FRANKUN CIRCUIT COURT SALLY JUMP, CLERK

RALPH BAZE,

And

BRIAN KEITH MOORE

PLAINTIFFS

V.

ORDER

KENTUCKY DEPARTMENT OF CORRECTIONS

DEFENDANT

This matter is before the Court on the Defendant’s motion to alter, amend or vacate the Order entered November 30, 2006.
On April 26, 2006, Plaintiffs filed a complaint asking this Court to declare that the procedures used to implement KRS 431.220, Execution of Death Sentence, must be promulgated pursuant to the requirements of the Administrative Procedures Act. On May 26, 2006, the Department of Corrections moved to dismiss that complaint. Plaintiffs filed a motion for summary judgment on June 21, 2006. On November 29, 2006, argument was held on these motions. On November 30, 2006, the Court denied Defendant’s motion to dismiss and granted Plaintiffs motion for summary judgment. Thus, the Defendant was ordered to promulgate regulations pursuant to the Administrative Procedure Act to implement KRS 431.220. Defendant moved to alter, amend, or vacate the November 3O’
2

rdnatS

Judgment. The Court now grants the Defendant’s motion and VACATES the Judgment

ofNovember 30, 2006.

of Review

A judgment may be vacated per Kentucky Rule of Civil Procedure 59.05. This

rule does not give a standard for its application; however, Kentucky courts apply the

standards of Federal Rule of Civil Procedure 59 for altering a judgment.

Ciulon v.

Gullion, 163 S.W.3d 888, 892 Ky. 2005. The grounds upon which such a motion may

be granted are as follows:

First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent manifest injustice. Serious misconduct of counsel may justify relief under this theory. Fourth, a Rule 59e motion may be justified by an intervening change in controlling law.
j4. at 893. It is this Court’s opinion after ffirther review of the applicable statutes

and an attempt to harmonize those statutes that the original Order dated

November 30, 2006 contains manifest errors of law.

Discussion The Department of Corrections, as an administrative agency, may promulgate regulations under the general authority granted to it by KRS 196.035, which states "The secretary shall, except as otherwise provided in KRS 439.250 to 439.560 and KRS Chapter 13A, have the power and authority to adopt, amend, or rescind administrative regulations he deems necessary or suitable for the proper administration of the functions of the cabinet, including qualifications for the
3

receipt of federal hinds and for cooperation with other state and federal agencies."
emphasis added This broad, general authority is, by its terms, limited by the provisions of Chapter 13 A. KRS 1 3A. 100, entitled Matters Which Shall be
Proscribed by Administrative Regulation, reiterates these limitations on
administrative power to promulgate regulations: "Subject to limitations in
applicable statutes, any administrative body which is empowered to promulgate
administrative regulations shall, by administrative regulation prescribe, consistent
with applicable statutes." emphasis added
KRS 1 3A.010, the definitions for the chapter, defines an administrative
regulation both inclusively and exclusively. KRS 13A.OlO2a states as follows:
"Administrative regulation" means each statement of general applicability promulgated by an administrative body that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any administrative body. The term includes an existing administrative regulation, a new administrative regulation, an emergency administrative regulation, an administrative regulation in contemplation of a statute, the amendment or repeal of an existing administrative regulation, but does not include: a Statements concerning only the internal management of an administrative body and not affecting private rights or procedures available to the public;
emphasis added The definition of regulations does not include "[s]tatements
concerning only the internal management of an administrative body and not
affecting private rights or procedures available to the public." emphasis added
The procedures by which the lethal injection is given are matters of the internal
management of the Department of Corrections. These procedures direct
Department personnel on matters such as movement of the condemned, security,
contacting necessary parties, and more particularly, the combination of drugs and
4

the method by which they are administered or injected. These internal management procedures serve as an instruction manual, dictating the necessary department preparations as well as required personnel.
Plaintiff asserts that the method by which lethal injection is implemented is not an issue of internal management because all citizens, being generally subject to the laws of the Commonwealth, are potentially subject to execution via that method. This argument regarding general applicability does not demonstrate that the lethal injection procedures are not for internal management. Prison search policies, operation of the inmate canteen and health services, and adjustment procedures and programs are all procedures for managing the operation of the prison system and each would potentially affect any citizen who should run afoul of the law; however, these are not legitimate subjects for administrative regulations.
Chapter 1 3A also places explicit limits on the authority to promulgate regulations by enumerating specific prohibitions. KRS 1 3A. 120a states "{ajn administrative body may promulgate administrative regulations to implement a statute only when the act of the General Assembly creating or amending the statute speqflcally authorizes the promulgation of administrative regulations" emphasis added This prohibition is repeated in subsection 2d: "An administrative body shall not promulgate administrative regulations when the administrative body is not authorized by statute to regulate that particular matter." emphasis added The broad authority to promulgate regulations which the General Assembly granted to the Department of Corrections in KRS 196.035
5

is limited by these provisions of Chapter 1 3A so that the Department may exercise its authority to implement a statute only when specifically authorized to do so.
KRS 431.220, titled Execution of Death Sentence, does not authorize the Department of Corrections to promulgate administrative regulations to implement lethal injection. If the General Assembly intended that the Department of Corrections lethal injection procedures be subject to the provisions of the Administrative Procedure Act, then it could have easily required that regulations implementing lethal injection be promulgated. Their failure to include such an implementation requirement is a glaring omission. As an example, the General Assembly did specifically authorize regulations to establish a sex offender treatment program in KRS 197.4201: "The department shall have the sole authority and responsibility for establishing by regulation the design of the specialized program created in KRS 197.400 to 197.420." emphasis added Because the General Assembly did not authorize or require regulations when it clearly could have done so, it cannot be presumed to have intended that the procedures for execution of condemned inmates be formulated as anything other than an internal policy of the Department of Corrections. To interpret KRS 431.220 as containing some implied requirement of administrative regulation would constitute a direct infringement by this Court upon the province of the legislative branch. KRS 431.220 was passed in 1998 eight years ago and the General Assembly has never seen fit to amend that statute to require implementing regulations.
6

The Plaintiffs have gone to great lengths in their various briefs to argue that an administrative regulation is necessary to inform the public of the lethal injection procedure. They contend that mere public discussion is insufficient and the formality of administrative notice and comment is required. This argument has little merit since the procedure and an appropriate forum are both readily available. The current lethal injection procedures are clearly enunciated on page 8 of the Kentucky Supreme Court’s November 2006 opinion. While not yet final, this opinion is a public record that is readily available to any citizen.
Requiring the Defendant to promulgate a regulation implementing the lethal injection statute would effectively prevent an execution under the statute. If an administrative regulation was required, the Department could not carry out a lethal injection execution until a regulation was properly promulgated. In addition to the required notice and comment period, public hearing, and two legislative oversight hearings, there will doubtlessly be litigation regarding each specific procedure the regulation must contain. The regulatory process opens Pandora’s Box to litigation regarding the current drugs administered, what medical equipment is on site, and the training of the execution team. Each future advance of medicine or technology would automatically reopen those questions. The process of promulgating administrative regulations is conceived as a method by which government may act more efficiently; however, here the practical result of requiring administrative regulations is to prevent the Department of Corrections from effectuating the legislative directive to execute condemned inmates by lethal injection. Because Kentucky no longer employs electrocution as an alternative
7

execution method, the regulatory process would become nothing but a series of collateral attacks precluding capital punishment. Although this Court may be sympathetic with the Plaintiffs position regarding the death penalty, it deems it inappropriate to substitute its opinion for that of the General Assembly or the twelve jurors who imposed the death penalty.
For the foregoing reasons, the Order entered November 30, 2006 in this matter is VACATED. The Plaintiff’s motion for Summary Judgment is DENIED and the Defendant’s Motion to Dismiss is hereby GRANTED.
This is a Final and Appealable Order and there is no just reason for delay in the entry thereof.
SO ORDERED this 77 day ofDecember 2006.

06-C!-00574/lea
DISTRIBUTION:
Jeff Middendorf General Counsel Justice and Public Safety Cabinet 125 Holmes Street Frankfort, KY 40601

LCZ Honorable Sam G. McNamara Judge, Franidin Circuit Court
8

David M. Barron John A. Palombi Assistant Public Advocates 100 Fair Oaks Lane, Suite 301 Frankfort, KY 40601
9

 
 ______________

_______________

COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT
CASE NO. G6-CI-00514

THOMAS C. BOWLiNG, RALPH DAZE, DRIM4KEITHMOORE, Plaintiffs,

ENTEREP1

1 N0V302oa6

FRANKLIN CIACL.jT

SALLY

JUMP, CLERK

KENTUCKY DEPARTMENT OF CORRECTIONS Dtdant.

ORDER PlaintifTh filed a declaratory judgment complaint on April 26, 2006, asking that this Court declare that the procedures used to implement KRS 431.220, ExecUtion of Death Sentence, must be promulgated pursuant to the requirements Of the Administrative Procedures Act. On May 26, 2006, the Department of Corrections responded to that complaint and moved to dismiss the complaint. Plaintiffs filed a motion for summary judgment on June 21, 2006. No response to that motion was filed. On November 29; 2006, argument was held on Plaintiffs’ Motion for Smnmary Judgment and Defendant’s Motion to Dismiss. At argument, the Plaintiffs’ contended that KRS 13A.100 required the Department of Corrections to promulgate rules to implement KRS 431.220. The

Defendant argued that KRS 13A.120 exempted them from the rulemaking requirements with respect to KRS 431.220.
This Court heard argument from the parties on Plaintiffs’ motion for Summary Judgment. It also heard an argument from the Attorney General’ that this complaint should be dismissed on the ground that it challenged the Constitutionality of KRS 431.220 without providing notice to the Attorney General and because of procedural default.
This Court makes the following findings: 1 There are no genuine issues of material fact in this case; This case is solely an issue of law. 2 Plaintiffs’ Complaint for Declaratory Judgment and Motion for Summary. Judgment does not call into question the constitutionality of KRS 431.220. This lawsuit only deals with the implementation of KRS 431.220 and whether the Department of Corrections’ current execution procedures comply with the Administrative Procedures Act KRS l3A. 100 et seq.. 3 KRS 13A.lO0 requires the Department of Corrections to promulgate rules to implement KItS 431.220, and KRS 1 3A. 120 does not exempt the Department from rulemaking in this case. It is hereby ORDERED that: 1 The Defendant’s Motion to Dismiss is DENIED. 2 The Attorney General’s oral motion to dismiss is DENIED. 3 The Plaintiffs are entitled to judgment as a matter oflaw, and thus their motion for summary judgment is GRANTED.
2

I

The Department of Corrections is hereby ORDERED to promulgaie rules pursuant to the procedures set out in the Administrative Procedures Act to implement KItS 43 1.220.
There being no just cause for delay, this is a final and appealable order.

1/- So , 2006

Date:

e4 /d
Judge, Franklin Circuit Court

Tendered by: David M. Barton John Anthony Palombi
Have seen: Jeff Middendorf David A. Smith

‘The Attorney General is not a party to this action and never moved to intervene in this action. 3

DISTRiBUTION: DAVID M. BABRON Assistant Public Advocate Department ofPublic Advocacy 100 Fair Oaks Lane, Suite 301 Frankñrt, Kentucky 41601
JOHN ANTHONY PALOMBI
Aàsistant Public Advocate Department ofPublic Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 JEFF MIDDENDORFI General Counsel Department of Corrections 125 Holmes Street Frankfort, Kentuéky 40601
4

 
 Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 1 of 34
CLOSED,REFERP
U.S. District Court Eastern District of Kentucky (Frankfort) CIVIL DOCKET FOR CASE #: 3:06−cv−00022−KKC

Moore v. Rees et al Assigned to: Judge Karen K. Caldwell Referred to: PSO Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 04/19/2006 Date Terminated: 10/13/2015 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Brian Keith Moore

represented by David M. Barron Department of Public Advocacy − Capital Post Conviction Unit 200 Fair Oaks Lane Suite 501 Frankfort, KY 40601 502−564−3948 Fax: 502−564−3949 Email: davembarron@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marguerite Neill Thomas Department of Public Advocacy − Fkt 302 100 Fair Oaks Lane Suite 302 Frankfort, KY 40601 502−564−3948 Fax: 502−564−3949 Email: marguerite.thomas@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Jackson Balliet Department of Public Advocacy − Fkt 302 100 Fair Oaks Lane Suite 302 Frankfort, KY 40601 502−564−3948 Fax: 502−564−3949 Email: susan.balliet@ky.gov TERMINATED: 08/25/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Jeffrey Leonard TERMINATED: 03/17/2008
Intervenor Plaintiff

represented by David M. Barron (See above for address) ATTORNEY TO BE NOTICED
Marguerite Neill Thomas (See above for address) ATTORNEY TO BE NOTICED
represented by

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 2 of 34

Thomas Clyde Bowling TERMINATED: 09/26/2007

David M. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Anthony Palombi Public Advocate's Office 100 Fair Oaks Lane Suite 301 Frankfort, KY 40601 502−564−3948 Fax: 502−564−3949 Email: john_palombi@fd.org ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Ralph Baze TERMINATED: 09/25/2007

represented by David M. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Intervenor Plaintiff Roger Dale Epperson

represented by David M. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
John D. Rees Commissioner, Kentucky Department of Corrections Frankfort, Kentucky

represented by Brenn Oliver Combs Office of Legal Services − Dept of Corrections 275 E. Main Street P.O. Box 2400 Frankfort, KY 40602−2400 502−564−4726 Fax: 502−564−5037 Email: brenn.combs@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey T. Middendorf Commonwealth of Kentucky− Justice Cabinet 125 Holmes Street Second Floor Frankfort, KY 40601 502−564−3279 Fax: 502−564−6686 Email: jeff.middendorf@ky.gov TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas L. Self KY Justice &Public Safety Cabinet − Legal Services

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 3 of 34

Office of Legal Services 125 Holmes Street Second Floor Frankfort, KY 40601 502−564−8234 Fax: 502−564−6686 Email: tom.self@ky.gov TERMINATED: 03/17/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly Harris−Ray Commonwealth of Kentucky− Justice Cabinet 125 Holmes Street Second Floor Frankfort, KY 40601 502−564−3279 Fax: 502−564−6686 Email: holly.harris@ky.gov TERMINATED: 09/13/2007 ATTORNEY TO BE NOTICED

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

Defendant
Thomas Simpson Warden, Kentucky State Penitentiary, Eddyville, Kentucky

represented by Brenn Oliver Combs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Thomas L. Self (See above for address) TERMINATED: 03/17/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly Harris−Ray (See above for address) TERMINATED: 09/13/2007 ATTORNEY TO BE NOTICED

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

Defendant
Scott Haas Medical Director for the Kentucky Department of Corrections

represented by Brenn Oliver Combs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 4 of 34

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

Thomas L. Self (See above for address) TERMINATED: 03/17/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly Harris−Ray (See above for address) TERMINATED: 09/13/2007 ATTORNEY TO BE NOTICED

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

Defendant
Ernie Fletcher Governor of the Commonwealth of Kentucky

represented by Brenn Oliver Combs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Thomas L. Self (See above for address) TERMINATED: 03/17/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly Harris−Ray (See above for address) TERMINATED: 09/13/2007 ATTORNEY TO BE NOTICED

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

Defendant Unknown Executioners

represented by Brenn Oliver Combs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly Harris−Ray (See above for address) TERMINATED: 09/13/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey T. Middendorf (See above for address) TERMINATED: 11/26/2007 LEAD ATTORNEY

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 5 of 34
ATTORNEY TO BE NOTICED
John C. Cummings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas L. Self (See above for address) TERMINATED: 03/17/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/19/2006
04/19/2006 04/19/2006 04/19/2006 04/19/2006
04/19/2006 04/19/2006
04/19/2006 04/19/2006
04/19/2006

# Docket Text
1 COMPLAINT 4 summons(es)issued with copy , filed by Brian Keith Moore. (Attachments: # 1 Remaining Pages of Complaint 59−63# 2 Exhibit to Complaint − Grievance Rejection Notice &Inmate Grievance Form# 3 Memorandum in Support of Complaint re Lethal Injunctions − Part 1 (Exhibits to Memo not Scanned on file in Fkt Clerk's Ofc)# 4 Memorandum in Support of Complaint re Lethal Injections Part 2(Exhibits to Memo not Scanned on file in Clerk's Ofc)# 5 Memorandum in Support of Complaint re Execution (Exhibits to Memo not Scanned on file in Clerk's Ofc)# 6 Cover Sheet, Case Assignment &Summonses)(CBD) (Entered: 04/19/2006)
2 MOTION for Leave to Proceed in forma pauperis by Brian Keith Moore (Attachments: # 1 Certification of Funds# 2 Proposed Order)(CBD) (Entered: 04/19/2006)
3 NOTICE of Appearance of David Barron, counsel for by Brian Keith Moore (CBD) (Entered: 04/19/2006)
4 NOTICE of Appearance by Susan Jackson Balliet on behalf of Brian Keith Moore (CBD) (Entered: 04/19/2006)
5 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction Barring Defendants from Scheduling and Carrying Out Plaintiffs' Execution During the pendency of this Litigation and Consolidated Memorandum in Support by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/19/2006)
6 MOTION for Immediate Scheduling Conference Under Rule 16 pf FRCP (for Hearing) by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/19/2006)
7 MOTION for Order to Prohibit Defendants from conducting any physical examination of plaintiff for discovery purposes or in futherance of the Kentucky Department of Corrections' Execution Procedures and Consolidated Supporting Memo by Brian Keith Moore (Attachments: # 1 USDC SC Order dated 3/5/2004# 2 Proposed Order)(CBD) (Entered: 04/19/2006)
8 MOTION for Order to dispense with FRCP 26(f) Conference by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/19/2006)
9 MOTION to Permit Discovery prior to FRCP 26(f) Conference and for Expedited Discovery by Brian Keith Moore (Attachments: # 1 Interrogatories# 2 Request for Entry Upon Land for Inspection# 3 First Request for Production of Documents# 4 Notice of Individuals Plaintiff Intends to Depose and Intended Scope of Depositions# 5 Proposed Order)(CBD) (Entered: 04/19/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 6 MOTION for Hearing by Brian Keith Moore, 2 MOTION for Leave to Proceed in forma pauperis by Brian Keith Moore, 5 MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore (CBD) (Entered:

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 6 of 34

04/19/2006 04/19/2006 04/20/2006 04/20/2006 04/20/2006 04/20/2006 04/20/2006 04/21/2006 04/21/2006
04/21/2006 04/21/2006 04/21/2006
04/21/2006 04/25/2006

04/19/2006)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for inital review. (CBD) (Entered: 04/19/2006)
Clerk's Note: Court Copy sent to Chambers and SKV notified re Capital Case. (CBD) (Entered: 04/19/2006)
10 MOTION (for Order) to Disqualify Hon. Jeffrey Middendorf from representing any present or future defendants in this action by Brian Keith Moore (Attachments: # 1 Document outlining Duration of Effect of the Lethal Injection Chemicals# 2 Proposed Order)(CBD) (Entered: 04/20/2006)
11 SUMMONS Returned Executed by Brian Keith Moore via service on Hon David Smith, Asst. Attorney General as to Ernie Fletcher served on 4/19/2006, answer due 5/9/2006. (CBD) (Entered: 04/20/2006)
12 SUMMONS Returned Executed by Brian Keith Moore via service upon David Smith, Asst. Attorney General, as to Scott Haas served on 4/19/2006, answer due 5/9/2006. (CBD) (Entered: 04/20/2006)
13 SUMMONS Returned Executed by Brian Keith Moore via service upon Hon. David Smith, Asst. Attorney General, as to Thomas Simpson served on 4/19/2006, answer due 5/9/2006. (CBD) (Entered: 04/20/2006)
14 SUMMONS Returned Executed by Brian Keith Moore via service upon Hon. David Smith, Asst. Attorney General, as to John D. Rees served on 4/19/2006, answer due 5/9/2006. (CBD) (Entered: 04/20/2006)
15 NOTICE of Appearance by Marguerite Neill Thomas on behalf of Brian Keith Moore (CBD) (Entered: 04/21/2006)
16 EMERGENCY MOTION for Argument on 5] MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore 6 MOTION for Hearing by Brian Keith Moore, 8 MOTION for Order by Brian Keith Moore, 9 MOTION to Expedite by Brian Keith Moore, 7 MOTION for Order by Brian Keith Moore, 10 MOTION for Order by Brian Keith Moore, [MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/21/2006)
17 EMERGENCY MOTION for Order to allow discovery to begin immediately and to shorten the amount of time defendants have to respond to discovery requests by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/21/2006)
18 MOTION for Order to shorten time for defendants to file a responsive pleading to the complaint by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/21/2006)
19 MOTION for Disclosure of the Kentucky Department of Corrections' Execution Protocol by Brian Keith Moore (Attachments: # 1 Proposed Order # 2 Exhibit 1 − Dfts' Response to Open Records Request# 3 Exhibit 2 − Breakdown of States w/ Public or Private Lethal Injection Protocols# 4 Exhibit 3 − California State Prison − San Quentin Operational Procedure# 5 Exhibit 4 − Georgia Dept of Corrections − Lethal Injection Procedure# 6 Exhibit 5 − Maryland Execution Operations Manual# 7 Exhibit 6 − South Carolina Execution Procedures)(CBD) (Entered: 04/21/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 18 MOTION for Order to shorten time dfts have to answer by Brian Keith Moore, 17 MOTION for Order by Brian Keith Moore, 16 Emergency MOTION for Hearing (CBD) (Entered: 04/21/2006)
20 DEFICIENCY ORDER: 1. Current application to proceed ifp 2 denied without prejudice 2) Clerk mark assigned forms w/ case number and send to counsel for plaintiff 3. pltf required to pay filing fee 4. pla on notice that failure to submit forms or pay fee w/in 30 days district court must a. presume prisoner not pauper

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 7 of 34

04/26/2006 04/26/2006 04/26/2006 04/26/2006 05/01/2006
05/03/2006 05/08/2006 05/11/2006
05/15/2006
05/17/2006 05/26/2006 05/26/2006
05/26/2006 05/30/2006

&b. order case dismissed for want of prosecution; &not reinstated; 5. upon payment of filing fee or filing of affidavit or expiration of 40 days return record to PSLC.. Signed by Judge Karen K. Caldwell. (Attachments: # 1 Form 122 Affidavit of Assets/IFP)(CBD)cc: COR w/ Form 122 (Entered: 04/25/2006)
21 NOTICE OF FILING OF COURT SUPPLIED AFFIDAVIT OF ASSETS FOR APPLICATION TO PROCEED IN FORMA PAUPERIS by Brian Keith Moore (Afidavit filed seperately as DE 22) (CBD) (Entered: 04/27/2006)
22 AFFIDAVIT/MOTION OF ASSETS FOR APPLICATION TO PROCEED IN FORMA PAUPERIS by Brian Keith Moore (CBD) (Entered: 04/27/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 22 MOTION for Leave to Proceed in forma pauperis by Brian Keith Moore (CBD) (Entered: 04/27/2006)
23 AMENDED MOTION to Disqualify Counsel, Hon. Jeffrey Middendorf, by Brian Keith Moore (Attachments: # 1 Exhibit − Duration of Effect of Lethal Injection Chemicals and Reversal Chemicals# 2 Proposed Order)(CBD) (Entered: 04/27/2006)
24 NOTICE OF FILING OF SUPPLEMENTAL AUTHORITY by Brian Keith Moore re 5 MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore, 1 Complaint (Attachments: # 1 2:04−cv−1156 GLF Cooey and Hill v. Taft (S.D. Ohio 4/28/2006))(CBD) (Entered: 05/01/2006)
25 SECOND NOTICE OF SUPPLEMENTAL INFORMATION by Brian Keith Moore re 1 Complaint. (Attachments: # 1 Newspaper Articles describing Joseph Lewis Clark's execution)(CBD) (Entered: 05/03/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 7 MOTION for Order by Brian Keith Moore, 8 MOTION for Order by Brian Keith Moore, 9 MOTION to Expedite by Brian Keith Moore, 10 MOTION for Order by Brian Keith Moore (AKR) (Entered: 05/08/2006)
26 MOTION for Default Judgment by Brian Keith Moore (Attachments: # 1 Memorandum in Support # 2 Exhibit 1 − Letter requesting an execution warrant# 3 Exhibit 2 − Summonses including return of service portion on 4/19/2006# 4 Exhibit 3 − Ddls/hearings entry from electronic filing system for this case# 5 Proposed Order)(CBD) (Entered: 05/12/2006)
27 ORDER: 1) Moore's ifp motion 22 GRANTED 2−6) Directing Monthly Payments be made from Prison Account of Brian Keith Moore 7) Clerk serve copy upon Jailer/Warden of Institution in which prisoner confined and Office of General Counsel, Dept. of Corrections, Fkt KY. Signed by Judge Karen K. Caldwell. (CBD)cc: COR, Finance, Ofc of Gen Counsel Dept of Corrections, Warden KSP (Entered: 05/15/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 19 MOTION for Disclosure by Brian Keith Moore, 23 MOTION to Disqualify Counsel by Brian Keith Moore (CBD) (Entered: 05/17/2006)
28 NOTICE OF APPEARANCEof Attorneys by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher.(Harris−Ray, Holly) (Entered: 05/26/2006)
29 RESPONSE in Opposition re 26 MOTION for Default Judgment by Brian Keith Mooreand Motion for Briefing Schedule filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying motion for default judgment and establishing scheduling order)(Harris−Ray, Holly) (Entered: 05/26/2006)
30 MOTION For Briefing Schedule by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (Attachments: # 1 Proposed Order)(AKR) (Entered: 05/30/2006)
NOTICE OF DOCKET MODIFICATION TO H. Harris−Ray re 29 Response in Opposition to Motion ; Error: This is a Response to Motion for Default Judgment

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 8 of 34

05/31/2006 05/31/2006 05/31/2006 06/01/2006
06/06/2006 06/12/2006 06/13/2006
06/14/2006 06/14/2006 06/14/2006

AND a Motion for Briefing Schedule. The attorney has only filed the pleading as a Response. Document should have been filed as two separate pleadings; Entry made by attorney; Correction: Clerk has re−filed the pleading as a Motion for Briefing Schedule 30 . In the future when filing multiple pleadings within one filing, please refer to the ECF Manual "Filing Other Types of Documents" for the correct procedure; No further steps required by counsel. cc: COR (AKR) (Entered: 05/30/2006)
31 NOTICE OF WITHDRAWAL OF MOTION FOR DEFAULT JUDGMENT 26 by Brian Keith Moore (AKR) (Entered: 05/31/2006)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: 31 Notice of Withdrawal of Motion for Default Judgment by Plaintiff (AKR) (Entered: 05/31/2006)
32 RESPONSE in Opposition re 30 MOTION For Briefing Schedule by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher filed by Brian Keith Moore. (Balliet, Susan) Additional attachment(s) added on 6/1/2006 (Ratliff, Kay). (Entered: 05/31/2006)
NOTICE OF DOCKET MODIFICATION TO S. Balliet re 32 Response in Opposition to Motion ; Error: Proposed Order was filed together with the response in opposition instead of as separate attachment; Entry made by attorney; Correction: Clerk has added the proposed order as a separate attachment. In future e−filings, the attorney shall file proposed order or each exhibit separately from one another and separate from the main document; No further action required by counsel. cc: COR (AKR) (Entered: 06/01/2006)
33 THIRD NOTICE OF SUPPLEMENTAL INFORMATION by Brian Keith Moore (Attachments: # 1 Exhibit − 6/2/2006 Sortnews.com article)(CBD) (Entered: 06/06/2006)
35 Prisoner Receipt For ORIGINAL Filing Fee; Receipt Number 125427; Balance $ 350.00; Amt Pd 4.50; Into Acct: 5100PL; Balance Due $345.5 (CBD) (Entered: 06/14/2006)
34 ORDER: Moore's Motion 26 for default jgm is DENIED. Dfts directed to file answer to complaint, or responsive pldg w/in 5 business days of entry of this order, Moore's emergency Motion 18 to shorten time dfts are allowed to file resp. to complaint DENIED as MOOT. Court will treat the motion for TRO 5 as Motion for Preliminary Injunction, dfts file Response to relief w/in 10 business days of entry of this Order; Moore file Reply w/in 5 business days of dfts' response filed. Moore filed Motion 7 for TRO preventing dfts from conducting physical exam. This motion will be DENIED. Court ORDERS 1) partie sto hold conf. required by Rule 26(f) w/in 10 business days after entry of this Order. 2) parties fiel report req. by Rule 26(f) w/in 5 business days after Rule26(f) conf. held. Moore's discovery motions 6 8 9 17 DENIED as MOOT. Moore has moved 19 to compel dfts to disclose Ky Dept of Corrections' execution protocol. Parties confer at Rule 26(f) conf. to determine if they can resolve this issue. If they cannot, dfts ORDERED to file response to this motion w/in 25 days of entry of this order. Moore has moved 10 &23 to disqualify Jeffrey Middendorf as counsel for dfts. Dfts ORDERED to file response to this motion w/in 25 business days of entry os this Order. Moore's emergency motion 16 for oral argument on pending motions and dfts' motion 30 for briefings schedule are DENIED as MOOT. Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 06/14/2006)
Set/Reset Deadlines as to 5 −2 MOTION for Preliminary Injunction by Brian Keith Moore MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore. Responses due by 6/28/2006 Replies due by 7/5/2006. (CBD) (Entered: 06/14/2006)
Set Deadlines/Hearings: Rule 26(f) Meeting Report due by 7/5/2006. (CBD) (Entered: 06/14/2006)
Set/Reset Deadlines as to 23 MOTION to Disqualify Counsel by Brian Keith Moore, 19 MOTION for Disclosure by Brian Keith Moore. Responses due by

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 9 of 34

06/14/2006 06/16/2006 06/16/2006 06/20/2006 06/20/2006 06/28/2006 06/29/2006 06/30/2006 06/30/2006
06/30/2006 06/30/2006 07/03/2006 07/03/2006 07/03/2006
07/03/2006

7/5/2006 (CBD) (Entered: 06/14/2006)
Set/Reset Deadlines as to 10 MOTION for Order by Brian Keith Moore. Responses due by 7/5/2006 (CBD) (Entered: 06/14/2006)
36 MOTION to Intervene as Plaintiff−Intervenor by Jeffrey Leonard (Attachments: # 1 Exhibit 1 − Order from USDC−EDAR 5:06−cv−110SWW/JFF# 2 Exhibit 2 − Order from USDC−EDOH 2:04−cv−1156# 3 Exhibit 3 − Proposed Intervenor Complaint USDC−EDKY# 4 Proposed Order)(AKR) (Entered: 06/16/2006)
37 RESPONSE to Motion re 36 to Intervene by Jeffrey Leonard filed by Brian Keith Moore. (AKR) (Entered: 06/16/2006)
38 ANSWER to Complaint by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Findings of Fact and Conclusions of Law − Franklin Circuit 04−CI−1094)(CBD) (Entered: 06/20/2006)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se for review of 38 Answer to Complaint. (CBD) (Entered: 06/20/2006)
39 MOTION to Strike portions of 38 Answer to Complaint by Brian Keith Moore Responses due by 7/16/2006 (Attachments: # 1 Proposed Order)(CBD) (Entered: 06/28/2006)
40 MOTION for Leave to File Reply to Answer by Brian Keith Moore (Attachments: # 1 Proposed Order # 2 Tendered Reply to Answer)(CBD) (Entered: 06/30/2006)
41 MOTION for Leave by John D. Rees Motion for Leave to File Response by Defendants John D. Rees, et al. (Middendorf, Jeffrey) Additional attachment: Proposed Order added on 7/5/2006 (Dearborn, Christy). (Entered: 06/30/2006)
42 TENDERED − RESPONSE to Motion re 5 MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore MOTION for Temporary Restraining Order by Brian Keith Moore MOTION for Preliminary Injunction by Brian Keith Moore filed by Defendants John D. Rees, et al. filed by John D. Rees. (Middendorf, Jeffrey) Modified text to reflect "Tendered"on 7/3/2006 (Dearborn, Christy). (Entered: 06/30/2006)
43 REPORT of Rule 26(f) Planning Meeting. (CBD) (Entered: 07/03/2006)
44 MOTION for Order Granting Preliminary Injunction due to defendants' failure to respond by Brian Keith Moore (Attachments: # 1 Proposed Order)(CBD) (Entered: 07/03/2006)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: 43 Report of Rule 26(f) Planning Meeting (CBD) (Entered: 07/03/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 44 MOTION for Order granting Preliminary Injunction for failure to respond by Brian Keith Moore (CBD) (Entered: 07/03/2006)
NOTICE OF DEFICIENCY TO J. Middendorf re 41 MOTION for Leave by John D. Rees, 42 Response to Motion, ; attorney has failed to submit a proposed order as an electronic attachment to the motion; attorney shall file the proposed order as an attachment to a "Notice of Filing" within 3 business days − NOTICE OF DOCKET MODIFICATION to 41 Motion for Leave to File Response &42 Response to Motion for TRO and Preliminary Injunction; Errors: (1) main documents were scanned instead of converted into PDF format from the native word application (2) attorney filed Response 42 without leave of the Court; Error made by attorney; Corrections: (1) All pleadings created with a word application shall be converted int o PDF format using PDF conversion software rather than being scanned (2) Clerk has modified text of Response 42 to reflect "Tendered" Attorney advised that until leave is given by the Court the response should not be filed as such, but rather attached electronically to Motion seeking leave to which it relates. (cc: COR) (CBD) (Entered: 07/03/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 41 MOTION for Leave to file Response to Motionf or TRo and Preliminary Injunction by John D. Rees (CBD) (Entered: 07/03/2006)

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 10 of 34

07/03/2006 07/03/2006 07/03/2006 07/05/2006
07/05/2006 07/05/2006
07/10/2006 07/10/2006 07/10/2006 07/11/2006 07/11/2006

45 NOTICE OF FILING by John D. Rees of Proposed Order re 41 Motion for Leave to File Response et al. (Attachments: # 1 Proposed Order Proposed Order Granting Motion for Leave)(Middendorf, Jeffrey) Modified text to state "of Proposed Order re 41 Motion for Leave" and adding link to event which it relates on 7/5/2006 (Dearborn, Christy). (Entered: 07/03/2006)
46 MOTION for Leave to file Response to plaintiff's Motion for Preliminary Injunction by John D. Rees et al. (Attachments: # 1 Tendered Response)(Middendorf, Jeffrey) Modified text by adding "to file Response to pltf's Motion for Preliminary Injunction" and description of attachment on 7/5/2006 (Dearborn, Christy). Additional attachment(s) added on 7/6/2006 (Ratliff, Kay). (Entered: 07/03/2006)
47 RESPONSE in Opposition to 41 MOTION for Leave to file out−of−time Response to pltf's Motion for Preliminary Injunction by John D. Rees filed by Brian Keith Moore. (Attachments: # 1 Proposed Order)(CBD) (Entered: 07/05/2006)
NOTICE OF DEFICIENCY TO J. Middendorf, 46 MOTION for Leave by John D. Rees ; attorney has failed to submit a proposed order as an electronic attachment to the motion; attorney shall file the propsed order as an attachment to a "Notice of Filing" within 3 business days − NOTICE OF DOCKET MODIFICATION TO J. Middendorf re 45 Notice of Filing and 46 Motion for Leave; ERRORS: (1) attoney faile to create link to the event to which DE 45 relates; Error by attorney (2) attorney failed to state what he was filing in DE 45 (3) attchment to DE 46 was insufficiently described "no description given"; CORRECTIONS: (1) Clerk has modified text and added relationship to create link. In the future attorney advised to create link with the existing event to which the pleading realtes. (2) Clerk has modified text to state "Notice of Filing of Proposed Order" Attorney advised to enter additional text into the optional text box to reflect what is being filed when filing a Notice of Filing. (3) Clerk has named attachment. It is necessary that all attachments are adequately described. ex: "no description" (incorrect); Tendered Response (correct.) No futher action required by counsel. (cc: COR) (CBD) (Entered: 07/05/2006)
48 NOTICE OF FILING by John D. Rees re 46 MOTION for Leave by John D. Rees NOTICE OF FILING OF PROPOSED ORDER (Attachments: # 1 Proposed Order Granting Motion for Leave)(Middendorf, Jeffrey) (Entered: 07/05/2006)
49 MOTION for Leave under LR 7.1 to file Reply to defendants' response to Moore's Motion for Preliminary Injunction in Excess of 15 pages by Brian Keith Moore (Attachments: # 1 Tendered Reply# 2 Exhibit 1 to Tendered Reply# 3 Exhibit 2 to Tendered Reply# 4 Exhibit 3 to Tendered Reply# 5 Exhibit 4 to Tendered Reply# 6 Exhibit 5 to Tendered Reply# 7 Exhibit 6 to Tendered Reply# 8 Exhibit 7 to Tendered Reply# 9 Exhibit 8 to Tendered Reply# 10 Exhibit 9 to Tendered Reply# 11 Exhibit 10 to Tendered Reply# 12 Exhibit 11 to Tendered Reply# 13 Proposed Order)(CBD) (Entered: 07/06/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 36 MOTION to Intervene by Jeffrey Leonard (AKR) (Entered: 07/10/2006)
50 MOTION for Protective Order by Ernie Fletcher Emergency Motion for Protective Order, MOTION to Quash by Ernie Fletcher Emergency Motion to Quash Subpoena (Attachments: # 1 Proposed Order Emergency Protective Order)(Harris−Ray, Holly) (Entered: 07/10/2006)
51 RESPONSE to Motion re 36 MOTION to Intervene by Jeffrey Leonard filed by John D. Rees. (Harris−Ray, Holly) (Entered: 07/10/2006)
NOTICE OF DEFICIENCY TO H. Harris−Ray re 51 Response to Motion to Intervene; attorney has failed to type name on the signature line; The name of the Filing User under whose login and password the document is submitted must be preceded by an "s/" and typed in the space where the signature would otherwise appear. No further action required. cc: COR (AKR) (Entered: 07/11/2006)
52 EMERGENCY PROTECTIVE ORDER: 1) subpoena issued on behalf of pltf to secure attendance of Governor Ernie Fletcher for a depo. scheduled 6/13/2006 is quashed 2) pltf prohibited from going forward with the depo. of Governor Fletcher until further order of the Court. Signed by Judge Karen K. Caldwell. (Motions

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 11 of 34

07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/12/2006 07/12/2006
07/12/2006 07/12/2006

terminated: 50 MOTION for Protective Order &MOTION to Quash) (CBD)cc: COR (Entered: 07/11/2006)
53 MOTION for Protective Order by John D. Rees , et al. re: Deposition of Jeffrey Middendorf, MOTION to Quash by John D. Rees , et al. re: Deposition of Jeffrey Middendorf (Attachments: # 1 Proposed Order Emergency Protective Order)(Harris−Ray, Holly) (Entered: 07/11/2006)
54 MOTION for Reconsideration of Order Prohibiting Deposition of Dft, Fletcher re 52 Protective Order by Brian Keith Moore (Attachments: # 1 Proposed Order)(AKR) (Entered: 07/11/2006)
55 MOTION for Protective Order by John D. Rees et al., Emergency Motion for Protective Order re: Deposition of George Million, MOTION to Quash by John D. Rees et al., Emergency Motion to Quash Subpoena re: Depo of George Million (Attachments: # 1 Proposed Order Emergency Protective Order)(Harris−Ray, Holly) (Entered: 07/11/2006)
56 EMERGENCY PROTECTIVE ORDER: 1. The subpoena issued on beh of plaintiff to secure attendance of Jeffrey Middendorf for depo sched for 7/13/06 53 is quashed. 2. Plaintiff is prohibited from going forward with the depo of Jeffrey Middendorf until further order of the Court. Signed by Judge Karen K. Caldwell. (AKR)cc: COR (Entered: 07/11/2006)
57 MOTION for Protective Order by John D. Rees et al., Emergency Motion for Protective Order re: Deposition of John Rees, MOTION to Quash by John D. Rees et al., Emergency Motion to Quash Subpoena re: Depo of John Rees (Attachments: # 1 Proposed Order Emergency Protective Order)(Self, Thomas) (Entered: 07/11/2006)
58 MOTION for Protective Order by John D. Rees et al., Emergency Motion for Protective Order re: Deposition of Dr. Scott Haas, MOTION to Quash by John D. Rees et al., Emergency Motion to Quash Subpoena re: Depo of Dr. Haas (Attachments: # 1 Proposed Order Emergency Protective Order)(Self, Thomas) (Entered: 07/11/2006)
59 MOTION for Protective Order by John D. Rees et al., Emergency Motion for Protective Order re: Deposition of James Schomig, MOTION to Quash by John D. Rees et al., Emergency Motion to Quash Subpoena re: Depo of James Schomig (Attachments: # 1 Proposed Order Emergency Protective Order)(Self, Thomas) (Entered: 07/11/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 55 MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees (AKR) (Entered: 07/12/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 59 MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees, 58 MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees, 57 MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees MOTION for Protective Order by John D. Rees MOTION to Quash by John D. Rees (AKR) (Entered: 07/12/2006)
60 RESPONSE in Opposition to Motion re 57 MOTION for Emergency Protective Order by John D. Rees MOTION to Quash Subpoena of John D. Rees filed by Brian Keith Moore. (Attachments: # 1 Affidavit of Claire Ruckert# 2 Proposed Order)(CBD) (Entered: 07/12/2006)
NOTICE OF DOCKET MODIFICATION TO H. Harris−Ray &T. Self re 59 MOTION for Protective Order MOTION to Quash, 58 MOTION for Protective Order MOTION to Quash, 55 MOTION for Protective Order MOTION to Quash, 57 MOTION for Protective Order MOTION to Quash, 53 MOTION for Protective Order MOTION to Quash; Error: main documents scanned instead of converted into PDF format directly from native word format; Entry made by attorneys;

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 12 of 34

07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/12/2006 07/17/2006 07/17/2006 07/17/2006 07/18/2006 07/18/2006 07/18/2006

Correction: All pleadings created with a word application shall be converted to PDF format using PDF format conversion software rather than being scanned.; No further action required by counsel. (cc: COR) (CBD) (Entered: 07/12/2006)
61 RESPONSE in Opposition re 58 MOTION for Protective Order by John D. Rees MOTION to Quash as to dft Haas by John D. Rees filed by Brian Keith Moore. (Attachments: # 1 Affidavit of Claire Ruckert# 2 Proposed Order)(CBD) (Entered: 07/12/2006)
62 ORDER: 1) subpoena issued to secure attendance of John Rees for depo. scheduled 6/13/2006 is quashed 2) pltf prohibited from going forward with depo. of John Rees until further order of the Court. Signed by Judge Karen K. Caldwell. (terminating 57 Motion for Protective Order, 57 Motion to Quash) (CBD)cc: COR (Entered: 07/12/2006)
63 ORDER: 1) subpoena issued to secure attendance of Dr. Scott Hass for depo. scheduled 6/13/2006 is quashed 2) pltf prohibited from going forward with depo. of Dr. Scott Haas until further order of the Court. Signed by Judge Karen K. Caldwell. (terminating 58 Motion for Protective Order, 58 Motion to Quash) (CBD)cc: COR (Entered: 07/12/2006)
64 ORDER: 1) subpoena issued to secure attendance of James M. Schomig for depo. scheduled 6/13/2006 is quashed 2) pltf prohibited from going forward with depo. of James M. Schomig until further order of the Court. Signed by Judge Karen K. Caldwell. (terminating 59 Motion for Protective Order, 59 Motion to Quash) (CBD)cc: COR (Entered: 07/12/2006)
65 ORDER: 1) subpoena issued to secure attendance of George Million for depo. scheduled for 6/13/2006 is quashed 2) pltf prohibited from going forward with depo of George Million until further order of the Court. Signed by Judge Karen K. Caldwell. (terminating 55 Motion for Protective Order, 55 Motion to Quash) (CBD)cc: COR (Entered: 07/12/2006)
66 RESPONSE in Opposition re 59 MOTION for Protective Order &MOTION to Quash subpoena issued to James M. Schomig by John D. Rees filed by Brian Keith Moore. (Attachments: # 1 Affidavit of Claire Ruckert# 2 Proposed Order)(CBD) (Entered: 07/12/2006)
67 RESPONSE in Opposition re 55 MOTION for Protective Order &MOTION to Quash subpoena issued to George Million by John D. Rees filed by Brian Keith Moore. (Attachments: # 1 Affidavit of Claire Ruckert# 2 Proposed Order)(CBD) (Entered: 07/12/2006)
68 REPLY to Response to Motion re 41 MOTION for Leave by John D. Rees et al., filed by John D. Rees. (Self, Thomas) (Entered: 07/17/2006)
69 RESPONSE to Motion re 39 MOTION to Strike 38 Answer to Complaint by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order Order denying Plaintiff's Motion to Strike Parts of Defendant's Answer)(Self, Thomas) (Entered: 07/17/2006)
70 RESPONSE to Motion re 40 MOTION for Leave to File by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order Denying Plaintiff's Motion for Leave to Reply to Defendants' Answer)(Self, Thomas) (Entered: 07/17/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 41 MOTION for Leave by John D. Rees (AKR) (Entered: 07/18/2006)
71 RESPONSE in Opposition re 23 MOTION to Disqualify Counsel by Brian Keith Moore, 10 MOTION for Order by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order Proposed Order Denying Plaintiff's Motion to Disqualify# 2 Affidavit Affidavit of Jeffrey T. Middendorf)(Harris−Ray, Holly) (Entered: 07/18/2006)
72 RESPONSE to Motion re 44 MOTION for Order by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order Denying Plaintiff's Motion to

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 13 of 34

07/19/2006 07/19/2006 07/20/2006
07/21/2006 07/21/2006 07/21/2006
07/21/2006 07/24/2006 07/24/2006 07/24/2006 07/25/2006 07/31/2006
08/03/2006 08/04/2006 08/08/2006 08/08/2006
08/08/2006

Grant Preliminary Injunction)(Harris−Ray, Holly) (Entered: 07/18/2006)
73 MOTION to Withdraw as Attorney of Record by Susan J. Balliet on behalf of Brian Keith Moore (Attachments: # 1 Proposed Order)(AKR) (Entered: 07/19/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 73 MOTION to Withdraw as Attorney of Record by Brian Keith Moore (AKR) (Entered: 07/19/2006)
74 STRICKEN per Order 86 − REPLY to Response to Motion re 46 MOTION for Leave by John D. Rees filed by Brian Keith Moore. (Barron, David) Modified textand linked to Order 86 on 8/25/2006 (Dearborn, Christy). (Entered: 07/20/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 46 MOTION for Leave to File Response out of time by John D. Rees (AKR) (Entered: 07/21/2006)
75 REPLY to Response to Motion re 39 MOTION to Strike 38 Answer to Complaint by Brian Keith Moore filed by Brian Keith Moore. (Barron, David) (Entered: 07/21/2006)
76 MOTION to Strike 74 Reply to Response to Motion by John D. Rees et al., Motion to Strike Plaintiff's Surreply Responses due by 8/8/2006 (Attachments: # 1 Proposed Order Proposed Order Granting Defendant's Motion to Strike)(Self, Thomas) (Entered: 07/21/2006)
77 REPLY to Response to Motion re 44 MOTION for Order by Brian Keith Moore filed by Brian Keith Moore. (Barron, David) (Entered: 07/21/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 39 MOTION to Strike 38 Answer to Complaint by Brian Keith Moore (AKR) (Entered: 07/24/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 44 MOTION for Order by Brian Keith Moore (AKR) (Entered: 07/24/2006)
78 RESPONSE to Motion re 49 MOTION for Leave by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order re: Plaintiff's Motion To Exceed Page Limit)(Self, Thomas) (Entered: 07/24/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 49 MOTION for Leave by Brian Keith Moore (AKR) (Entered: 07/25/2006)
79 RESPONSE in Opposition re 54 MOTION for Reconsideration re 52 Protective Order, Terminate Motions,, by Brian Keith Moore filed by John D. Rees. (Attachments: # 1 Proposed Order Denying Plaintiff's Motion for Reconsideration)(Self, Thomas) (Entered: 07/31/2006)
***MOTION SUBMITTED TO CHAMBERS of Pro Se/Judge Caldwell for review: 40 MOTION for Leave to File Reply to Answer by Brian Keith Moore (CBD) (Entered: 08/03/2006)
80 MOTION for Discovery by Brian Keith Moore (Attachments: # 1 certification# 2 Proposed Order)(Barron, David) (Entered: 08/04/2006)
81 MOTION to Take Deposition from Jones, Bauer, Hiland, nurses, Simpson, Schomig, execution team, I.V. team, executioner by Brian Keith Moore (Attachments: # 1 Proposed Order)(Barron, David) (Entered: 08/08/2006)
82 MOTION to Compel by Brian Keith Moore documenting of all attempts to draw blood of Moore &have a representative of Moore present at drawing of blood (Attachments: # 1 Proposed Order)(Barron, David) Modified text to include language in italics on 8/9/2006 (Ratliff, Kay). (Entered: 08/08/2006)
83 MOTION to Compel Discovery Under Rule 37 of FRCP by Brian Keith Moore (Attachments: # 1 Exhibit 1 − Certification of Attempt to Resolve Discovery Dispute# 2 Exhibit 2 − Request for Admission# 3 Exhibit 3 − Defendant's

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 14 of 34

08/09/2006 08/16/2006 08/18/2006 08/23/2006 08/23/2006
08/25/2006
08/25/2006 08/25/2006 08/25/2006

Response to Request for Admissions# 4 Exhibit 4 − Interrogatories# 5 Exhibit 5 − Defendant's Response to Interrogatories# 6 Exhibit 6 − Answers to Request for Production of Documents &Interrogatories# 7 Exhibit 7 − Pltfs' First Request for Production of Documents# 8 Exhibit 8 − Dfts Responses to Pltf's Requests for Production of Documents# 9 Exhibit 9 − Rule 26(a)(1) Disclosures# 10 Proposed Order) NOTE: Pg 4 of Exhibit 7 &Pg 2 of Exhibit 8 were not filed in Original or Court Copy(CBD) (Entered: 08/08/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 76 MOTION to Strike 74 Reply to Response to Motion by John D. Rees (AKR) (Entered: 08/09/2006)
84 NOTICE OF APPEARANCEof John C. Cummings as Co−Counsel by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher.(Cummings, John) (Entered: 08/16/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 54 MOTION for Reconsideration re 52 Protective Order, Terminate Motions, by Brian Keith Moore (AKR) (Entered: 08/18/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 80 MOTION for Discovery by Brian Keith Moore (CBD) (Entered: 08/23/2006)
85 MOTION for Extension of Time to File Response/Reply as to 80 MOTION for Discovery by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher with Response tendered as exhibit (Attachments: # 1 Proposed Order Granting Motion for Enlargement of Time# 2 Exhibit Response to Plaintiff's Motion to Disclose Electrocution Protocol# 3 Exhibit Proposed Order Denying Plaintiff's Motion to Disclose Electrocution Protocol)(Cummings, John) (Entered: 08/23/2006)
86 ORDER: 1) Moore's MOTION 19 for disclosure of Ky Dept of Corrections' execution protocol DENIED 2) Moore's motions − MOTION 10 and AMENDED MOTION 23 to disqualify Hon. Jeffrey Middendorf from representing defendants are DENIED. 3) Leonard's MOTION 36 to intervene as plaintiff−intervenor GRANTED and Clerk is directed to file his tendered complaint in record 4) Moore's MOTION 39 to strike parts of dfts' answer is DENIED 5) Moore's MOTION 40 to reply to dfts' answer is DENIED 6) dfts' MOTION(s) 41 and 46 for leave to file response to pltf's Motion for Preliminary Injunction are GRANTED and Clerk directed to file tendered response 42 into the record 7) Moore's MOTION 44 to grant preliminary injunction due to dfts' failure to respond is DENIED 8) Moore's MOTION 49 for leave to reply to dfts' response to Moore's Motion for preliminary injunction in excess of 15 pages is GRANTED 9) Susan Balliet's MOTION 73 to withdraw as attorney for Brian Keith Moore is GRANTED 10) dfts' MOTION 76 to strike pltf's sur−reply to dfts' reply to pltf's response in opposition to dfts' Motion to file out−of−time response is GRANTED. Signed by Judge Karen K. Caldwell. (NOTE: Order − pg 9 directs Clerk to strike sur−reply 74 from the record re: Motion 76 ) (CBD)cc: COR (Entered: 08/25/2006)
87 INTERVENOR COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF, filed by Jeffrey Leonard against Rees, Simpson, Haas, Fletcher and Unknown Executioners.(CBD)DISMISSED per Order [208 Modified text w/ language in bold on 3/20/2008 (CBD). (Entered: 08/25/2006)
88 RESPONSE to Motion re 5 MOTION for Preliminary Injunction by Brian Keith Moore filed by Unknown Executioners, John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (CBD) (Entered: 08/25/2006)
89 REPLY to Response to Motion re 5 MOTION for Preliminary Injunction by Brian Keith Moore filed by Brian Keith Moore. (Attachments: # 1 Exhibit 1 − USDC SDOH Order adted 4/28/2006# 2 Exhibit 2 − Franklin Cir. Ct KY Order dated 11/23/2004# 3 Exhibit 3 − USDC EDAR Order dated 6/26/2006 (Note − duplicate pg 1 of Order)# 4 Exhibit 4 − Morales v. Hickman, 415 F.Supp.2d 1037 (N.D.Cal. 2006)# 5 Exhibit 5 − 12/23/2003 response to open records request by Theodore Shouse# 6 Exhibit 6 − 8/3/2004 response to open records request by David M. Barron# 7 Exhibit 7 − USDC EDNC Order dated 4/7/2006# 8 Exhibit 8 − newspaper articles concerning execution of Joseph Clark# 9 Exhibit 9 − USDC

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 15 of 34

08/25/2006 08/28/2006 08/28/2006 08/28/2006 08/29/2006
08/29/2006 09/05/2006 09/08/2006 09/08/2006 09/11/2006 09/11/2006 09/11/2006 09/12/2006

WDMO docket sheet for civil action 05−4173# 10 Exhibit 10 − USDC WDMO Order dated 6/26/2006# 11 Exhibit 11 − USDC Maryland Declaration of Thomas M. Scalea in 06−cv−149)(CBD) (Entered: 08/25/2006)
Clerk's Note: Docket Entries − 89 Reply to Response to Motion, 88 Response to Motion, 87 Intervenor Complaint filed pursuant to Order 86 . (CBD) (Entered: 08/25/2006)
90 RESPONSE to Motion re 82 MOTION to Compel by Brian Keith Moore filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Plaintiff's Motion is Denied)(Cummings, John) (Entered: 08/28/2006)
91 RESPONSE to Motion re 81 MOTION to Take Deposition from Jones, Bauer, Hiland, nurses, Simpson, Schomig, execution team, I.V. team, executioner by Brian Keith Moore filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Plaintiff's Motion for Leave to Conduct Depositions)(Cummings, John) (Entered: 08/28/2006)
92 MOTION for Extension of Time to File Response/Reply as to 83 MOTION to Compel by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher To respond to Plaintiff's Motion to Compel Discovery under Rule 37 (Attachments: # 1 Proposed Order Granting Defendants' Motion for Extension of Time)(Cummings, John) (Entered: 08/28/2006)
93 RESPONSE in Opposition re 85 MOTION for Extension of Time to File Response to 80 MOTION for Discovery (to disclose portions of KY's electrocution protocol) by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher filed by Jeffrey Leonard, Brian Keith Moore. (Attachments: # 1 Proposed Order # 2 Exhibit − Tendered Reply to Response in Opposition to Motion to Disclose portions of Kentucky Department of Corrections' Electrocution Protocol)(CBD) (Entered: 08/29/2006)
***MOTION SUBMITTED TO CHAMBERS of Caldwell for review: 85 MOTION for Extension of Time to File Response as to 80 MOTION for Discovery (to disclose portions of Ky's electrocution protocol) by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (CBD) (Entered: 08/29/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 92 MOTION for Extension of Time to File Response/Reply as to 83 MOTION to Compel by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (AKR) (Entered: 09/05/2006)
94 REPLY to Response to Motion re 82 MOTION to Compel by Brian Keith Moore filed by Brian Keith Moore. (Barron, David) (Entered: 09/08/2006)
95 REPLY to Response to Motion re 81 MOTION to Take Deposition from Jones, Bauer, Hiland, nurses, Simpson, Schomig, execution team, I.V. team, executioner by Brian Keith Moore filed by Jeffrey Leonard, Brian Keith Moore. (Barron, David) (Entered: 09/08/2006)
***MOTION SUBMITTED TO CHAMBERS of Pro Se/Judge Caldwell for review: 82 MOTION to Compel by Brian Keith Moore (CBD) (Entered: 09/11/2006)
***MOTION SUBMITTED TO CHAMBERS of Pro Se/Judge Caldwell for review: 81 MOTION to Take Deposition from Jones, Bauer, Hiland, nurses, Simpson, Schomig, execution team, I.V. team, executioner by Brian Keith Moore (CBD) (Entered: 09/11/2006)
96 REPLY to 93 Plaintiff's Response in Opposition to Defendants' Motion filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Cummings, John) (Entered: 09/11/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 85 MOTION for Extension of Time to File Response/Reply as to 80 MOTION for Discovery by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas,

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 16 of 34

09/12/2006
09/13/2006 09/13/2006 09/13/2006 09/13/2006 09/13/2006 09/18/2006 10/03/2006
11/27/2006
11/27/2006 11/27/2006 11/27/2006 11/27/2006 11/27/2006 11/27/2006 11/27/2006

Ernie Fletcher (AKR) (Entered: 09/12/2006)
97 RESPONSE to Motion re 83 MOTION to Compel by Brian Keith Moore filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit Deposition of Dr. Steve Hiland# 2 INCORRECT Proposed Order Denying Plaintiff's Motion to Compel Discovery)(Cummings, John) Modified text by adding INCORRECT in front of attachment proposed order on 9/13/2006 (Ratliff, Kay). Additional attachment(s) added on 9/14/2006 (Ratliff, Kay). (Entered: 09/12/2006)
98 NOTICE OF FILING by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher re 97 Response to Motion, Corrected Proposed Order (Attachments: # 1 Proposed Order Denying Plaintiff's Motion to Compel Discovery Under Rule 37)(Cummings, John) (Entered: 09/13/2006)
***FILE SUBMITTED TO CHAMBERS of Pro Se for review pursuant to Judge Caldwell's chambers. (AKR) (Entered: 09/13/2006)
Clerk's Note: KKC chambers advises that Pro Se Clerk will be handling this case and matters should be submitted to Pro Se. (AKR) (Entered: 09/13/2006)
Clerk's Note: Counsel advised Clerk that the proposed order attached to 97 Response to Motion was the incorrect PDF document. Counsel advised to file the correct PDF Proposed Order to a Notice of Filing. (AKR) (Entered: 09/13/2006)
NOTICE OF DEFICIENCY TO J. Cummings re 97 Response to Motion ; the attached proposed order was the wrong PDF image; Error by Attorney; Attorney shall file the correct proposed order as an attachment to a Notice of Filing within 3 business days. cc: COR (AKR) (Entered: 09/13/2006)
99 ANSWER to Intervenor Complaint by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher.(Cummings, John) (Entered: 09/18/2006)
***MOTION SUBMITTED TO CHAMBERS of Pro Se/ KKC for review: 83 MOTION to Compel by Brian Keith Moore by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher, AND REALTED MOTION 92 MOTION for Extension of Time to File Reply as to 83 MOTION to Compel by Brian Keith Moore (CBD) (Entered: 10/03/2006)
100 EMERGENCY MOTION to Intervene by Thomas Clyde Bowling (Attachments: # 1 Exhibit Federal dist ct. opinion in Taylor v. Crawford# 2 Exhibit intervenor complaint# 3 Proposed Order proposed order granting motion to intervene)(Barron, David) Modified text to state "Emergency" on 11/28/2006 (Dearborn, Christy). (Entered: 11/27/2006)
101 EMERGENCY MOTION to Intervene by Ralph Baze (Attachments: # 1 Exhibit Fed dist. ct. opinion in Taylor v. Crawford# 2 Exhibit Intervenor Complaint# 3 Proposed Order granting motion to intervene)(Barron, David) Modified text to state "Emergency" on 11/28/2006 (Dearborn, Christy). (Entered: 11/27/2006)
102 RESPONSE to Motion re 100 MOTION to Intervene by Thomas Clyde Bowling filed by Brian Keith Moore. (Barron, David) (Entered: 11/27/2006)
103 RESPONSE to Motion re 101 MOTION to Intervene by Ralph Baze filed by Brian Keith Moore. (Barron, David) (Entered: 11/27/2006)
104 NOTICE OF APPEARANCEof John Palombi on behalf of Thomas Clyde Bowling, Intervenor Plaintiff by Thomas Clyde Bowling.(Palombi, John) (Entered: 11/27/2006)
105 RESPONSE to Motion re 100 MOTION to Intervene by Thomas Clyde Bowling filed by Jeffrey Leonard. (Barron, David) (Entered: 11/27/2006)
106 NOTICE OF APPEARANCEof John Palombi on behalf of Ralph Baze, Intervenor Plaintiff by Ralph Baze.(Palombi, John) (Entered: 11/27/2006)
107 RESPONSE to Motion re 101 MOTION to Intervene by Ralph Baze filed by Jeffrey Leonard. (Barron, David) (Entered: 11/27/2006)

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 17 of 34

11/28/2006
11/28/2006
11/28/2006 12/01/2006 12/01/2006 12/01/2006 12/01/2006
12/04/2006
12/04/2006
12/05/2006 12/05/2006 12/05/2006

NOTICE OF DEFICIENCY TO J. Palombi re 106 NOTICE OF APPEARANCE, 104 NOTICE OF APPEARANCE ; attorney failed to provide certificate of service with both pleadings and page two of both pleadings is blank. Attorney advised that each pleading must have a certificate of service.; Attorney shall file the certificate of service and missing page two filed as attachments to a pleading styled "Notice of Filing" within 3 business days. (cc: COR) (CBD) (Entered: 11/28/2006)
NOTICE OF DOCKET MODIFICATION TO D. Barron re 101 MOTION to Intervene by Ralph Baze, 100 MOTION to Intervene by Thomas Clyde Bowling ; Error: the pleadings were not accurately described; Entry made by attorney; Correction: Clerk has modified the docket text to state "EMERGENCY." In future filings, attorney is advised to enter additional text into the optional text box to reflect the caption of the pleading; No further action required by counsel. (cc: COR) (CBD) (Entered: 11/28/2006)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: 101 EMERGENCY MOTION to Intervene by Ralph Baze, 100 EMERGENCY MOTION to Intervene by Thomas Clyde Bowling (CBD) (Entered: 11/28/2006)
108 NOTICE OF FILING by Ralph Baze re 106 NOTICE OF APPEARANCE (Attachments: # 1 Exhibit Certificate of Service)(Palombi, John) (Entered: 12/01/2006)
109 NOTICE OF FILING by Thomas Clyde Bowling re 104 NOTICE OF APPEARANCE (Attachments: # 1 Exhibit Certificate of Service)(Palombi, John) (Entered: 12/01/2006)
110 MOTION for Discovery by Brian Keith Moore Second Motion for leave to conduct depositions (Attachments: # 1 Proposed Order granting second motion for leave to conduct depositions)(Barron, David) (Entered: 12/01/2006)
111 RESPONSE in Opposition re 101 MOTION to Intervene by Ralph Baze, 100 MOTION to Intervene by Thomas Clyde Bowling filed by Unknown Executioners, John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit 1 − Complaint in Case No. 04−CI−1094# 2 Exhibit 2 − Opinion and Order in Case No. 2005−SC−000162−OA# 3 Exhibit 3 − Opinion of the Court in Appeal No. 2005−SC−0543−MR# 4 Proposed Order Denying Motions to Intervene of Baze and Bowling)(Cummings, John) (Entered: 12/01/2006)
112 REPLY to Response to Motion re 101 MOTION to Intervene by Ralph Baze filed by Ralph Baze. (Attachments: # 1 Exhibit Exhibit 1: Defendants' Motion to Dismiss in Baze v. Rees# 2 Exhibit Exhibit 2: Franklin Circuit Court Order in Baze v. Rees Denying Defendants' Motion to Dismiss# 3 Exhibit Exhibit 3: Franklin Circuit Court Order in Baze v. Rees granting motion to stay Bowling's Nov. 30, 2004 execution)(Barron, David) (Entered: 12/04/2006)
113 REPLY to Response to Motion re 100 MOTION to Intervene by Thomas Clyde Bowling filed by Thomas Clyde Bowling. (Attachments: # 1 Exhibit 1: Defendants' Motion to Dismiss in Baze v. Rees# 2 Exhibit 2: Franklin Circuit Court Order in Baze v. Rees Denying Defendants' Motion to Dismiss# 3 Exhibit 3: Franklin Circuit Court Staying Bowling's November 30, 2004 Execution)(Barron, David) (Entered: 12/04/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 101 Emergency MOTION to Intervene by Ralph Baze (AKR) (Entered: 12/05/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 100 Emergency MOTION to Intervene by Thomas Clyde Bowling (AKR) (Entered: 12/05/2006)
114 EMERGENCY MOTION for Leave by Ralph Baze to supplement reply to response to motion to intervene (Attachments: # 1 Exhibit 1: Henderson's reply on motion to stay execution in Sixth Circuit# 2 Exhibit 2: Dec. 4, 2006 en banc order of Sixth Circuit in Henderson v. Taft# 3 Exhibit 3: Ohio's motion in SCOTUS to vacate stay of execution# 4 Exhibit 4: Henderson's response in SCOTUS opposing motion to vacate stay of execution# 5 Exhibit 5: Dec. 4, 2006 SCOTUS order in Taft v. Henderson# 6 Proposed Order Exhibit 6: proposed order granting Baze's

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 18 of 34

12/05/2006
12/06/2006 12/06/2006 12/06/2006
12/06/2006 12/06/2006 12/07/2006 12/07/2006 12/08/2006
12/08/2006

motion to supplement reply)(Barron, David) (Entered: 12/05/2006)
115 EMERGENCY MOTION for Leave by Thomas Clyde Bowling to supplement reply to response opposing motion to intervene (Attachments: # 1 Exhibit 1: Henderson's reply to motion for stay of execution in Sixth Circuit# 2 Exhibit 2: Dec. 4, 2006 en banc order of Sixth Circuit in Henderson v. Taft# 3 Exhibit 3: Ohio's motion in SCOTUS to vacate Henderson's stay of execution# 4 Exhibit 4: Henderson's response in SCOTUS opposing motion to vacate stay of execution# 5 Exhibit 5: Dec. 4, 2006 United States Supreme Court order in Taft v. Henderson refusing to vacate stay of execution# 6 Proposed Order Exhibit 6: proposed order granting Bowling's motion to supplement reply)(Barron, David) (Entered: 12/05/2006)
Clerk's Note: Called counsel's ofc and confirmed that Motions 115 EMERGENCY MOTION for Leave by Thomas Clyde Bowling, and 114 EMERGENCY MOTION for Leave by Ralph Baze are "Emergency" motions as this was not stated in caption of either pleading. (CBD) (Entered: 12/06/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 115 EMERGENCY MOTION for Leave to Supplement Reply by Thomas Clyde Bowling, 114 EMERGENCY MOTION for Leave by Ralph Baze to Supplement Reply (CBD) (Entered: 12/06/2006)
116 RESPONSE in Opposition re 114 EMERGENCY MOTION for Leave by Ralph Baze, 115 EMERGENCY MOTION for Leave by Thomas Clyde Bowlingto Supplement Replies of Ralph Baze and Thomas C. Bowling filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit A − Slip Copy, 2006 WL 3043116 (S.D.Ohio)# 2 Proposed Order Denying Motions for Leave to Supplement Reply of Ralph Baze and Thomas Bowling)(Cummings, John) Modified text by adding description of exhibit A on 12/7/2006 (Ratliff, Kay). (Entered: 12/06/2006)
117 REPLY to Response to Motion re 114 EMERGENCY MOTION for Leave by Ralph Bazeto supplement reply to response opposing Baze's motion to intervene filed by Ralph Baze. (Barron, David) (Entered: 12/06/2006)
118 REPLY to Response to Motion re 115 EMERGENCY MOTION for Leave by Thomas Clyde Bowling to supplement reply to response opposing Bowling's intervention filed by Thomas Clyde Bowling. (Barron, David) (Entered: 12/06/2006)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 115 EMERGENCY MOTION for Leave by Thomas Clyde Bowling, 114 EMERGENCY MOTION for Leave by Ralph Baze (AKR) (Entered: 12/07/2006)
NOTICE OF DOCKET MODIFICATION TO J. Cummings re 116 Response in Opposition to Motion ; Error: attachment was insufficiently described as "Exhibit A"; Entry made by attorney; Correction: the Clerk has renamed the attachment. It is necessary that all attachments are adequately described. ex: Exhibit A (incorrect); Exhibit A − Affidavit of John Doe (correct); No further action required by counsel. cc: COR (AKR) (Entered: 12/07/2006)
119 ORDER: 1) Proposed intervenors Baze and Bowling shall file, on or before 1/5/2007, a single, combined supplemental memo., not to exceed 20 pgs, addressing solely any potential application of the Rooker−Feldman doctrine 2) dfts shall file, on or before 1/22/2007, a supplemental memo in response, not to exceed 20 pgs, addressing soley this issue 3) No other or further briefing shall be permitted unless directed by Order of the Court. The matter shall stand submitted for decision upon filing of the dfts' response. Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 12/08/2006)
120 NOTICE OF MANDATORY ECF DIRECTED TO Marguerite Neill Thomas, a non−registered attorney re 119 Order − had to be MAILED TO a non−registered attorney, which is in direct violation of this court's General Orders re: Mandatory ECF. Failure to comply will result in this matter being submitted to the Chief Judge. (cc: COR) (CBD) (Entered: 12/08/2006)

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 19 of 34

12/08/2006 12/13/2006 12/18/2006 12/20/2006 12/21/2006 12/28/2006 12/28/2006 12/28/2006
01/22/2007 01/22/2007 01/23/2007 01/25/2007
02/12/2007

Clerk's Note: ECF Registration form mailed to Marguerite Neill Thomas w/ 120 ECF Mandatory Notice this date. (CBD) (Entered: 12/08/2006)
121 Prisoner Receipt For ORIGINAL Filing Fee; Receipt Number 127559; Balance $ 345.50; Amt Pd 10.00; Into Acct: 5100PL; Balance Due $335.50 (CBD) (Entered: 12/15/2006)
122 RESPONSE in Opposition re 110 MOTION for Discovery by Brian Keith Moore Second Motion for Leave to Conduct Depositions filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Plaintiff's Second Motion for Leave to Conduct Depositions)(Cummings, John) (Entered: 12/18/2006)
123 REPLY to Response to Motion re 110 MOTION for Discovery by Brian Keith MooreMoore's Second Motion to Take Depositions filed by Brian Keith Moore. (Barron, David) (Entered: 12/20/2006)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk/Judge Caldwell for review: 110 MOTION for Discovery ( Second Motion for leave to conduct depositions) by Brian Keith Moore (CBD) (Entered: 12/21/2006)
124 NOTICE OF FILING by Jeffrey Leonard Prison Grievance Rejection Notice (Attachments: # 1 Exhibit Leonard's Grievance Rejection Notice)(Barron, David) (Entered: 12/28/2006)
125 NOTICE OF FILING by Thomas Clyde Bowling re 100 MOTION to Intervene by Thomas Clyde Bowling Bowling's Notice of Filing of Prison Grievance Rejection Notice (Attachments: # 1 Exhibit Bowling's Grievance Rejection Notice)(Barron, David) (Entered: 12/28/2006)
126 RALPH BAZE AND THOMAS CLYDE BOWLING'S BRIEF ON THE APPLICATION OF THE ROOKER−FELDMAN DOCTRINE TO THEIR MOTIONS TO INTERVENE − NOTICE OF FILING by Thomas Clyde Bowling, Ralph Baze re 119 Order,,, 101 MOTION to Intervene by Ralph Baze, 100 MOTION to Intervene by Thomas Clyde Bowling Baze and Bowling Supp. Memo App. Rooker/Feldman to intervene, ordered 12/8 (Attachments: # 1 Exhibit Complaint under 42 U.S.C. 1983 filed in Hill v. Crosby)(Barron, David) Modified text to better describe caption of document on 12/29/2006 (Dearborn, Christy). (Entered: 12/28/2006)
127 RESPONSE BRIEF to 119 Rooker−Feldman Doctrine filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order dismissing action with prejudice)(Harris−Ray, Holly) Additional attachment(s) added on 1/23/2007 (Ratliff, Kay). (Entered: 01/22/2007)
128 NOTICE OF FILING by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher re 127 RESPONSE BRIEF (Attachments: # 1 Exhibit 1 Findings of Fact, Conclusions of Law Civil Action No. 04−CI−01094# 2 Exhibit 2 Supreme Court Opinion Case No. 2005−SC−0543−MR)(Harris−Ray, Holly) (Entered: 01/22/2007)
129 MOTION to Strike 128 Notice of Filing,, 127 RESPONSE BRIEF, by Jeffrey Leonard, Brian Keith Moore (Attachments: # 1 Proposed Order Granting Moore and Leonard's motion to strike part of Defendants' Rooker−Feldman Memorandum)(Barron, David) (Entered: 01/23/2007)
130 MOTION for Leave by Jeffrey Leonard, Brian Keith Moore Moore &Leonard Motion to File Response Defendants' RookerFeldman Memo (Attachments: # 1 Proposed Order granting Moore and Leonard motion to file response to Defendants' Rooker−Feldman memorandun# 2 Exhibit Tendered Response by Moore and Leonard to Defendants' Rooker−Feldman Memorandum# 3 Proposed Order denying Defendants' Request to Apply Rooker−Feldman Doctrine to Moore and Leonard)(Barron, David) (Entered: 01/25/2007)
131 RESPONSE in Opposition re 129 MOTION to Strike 128 Notice of Filing,, 127 RESPONSE BRIEF, by Jeffrey Leonard, Brian Keith Moore filed by Unknown Executioners, John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Plaintiffs Moore's and Leonard's Motion to Strike Portions of Defendants' Rooker−Feldman

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 20 of 34

02/12/2007
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Memorandum)(Cummings, John) (Entered: 02/12/2007)
132 RESPONSE in Opposition re 130 MOTION for Leave by Jeffrey Leonard, Brian Keith Mooreto File Response Defendants' RookerFeldman Memo filed by Unknown Executioners, John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Plaintiffs Moore's and Leonard's Joint Motion for Leave to FIle a Response to Defendants' Rooker−Feldman Memorandum)(Cummings, John) Modified text w/ language italics to better descibe doc. on 2/13/2007 (Dearborn, Christy). (Entered: 02/12/2007)
133 REPLY to Response to Motion re 129 MOTION to Strike 128 Notice of Filing,, 127 RESPONSE BRIEF, by Jeffrey Leonard, Brian Keith MooreReply to Response opposing Plaint motion strike Def. Rooker−Feldman brief filed by Jeffrey Leonard, Brian Keith Moore. (Barron, David) (Entered: 02/14/2007)
134 REPLY to Response to Motion re 130 MOTION for Leave by Jeffrey Leonard, Brian Keith MooreReply to Response opposing Plaintiffs motion file resp. Def. Rooker brief filed by Jeffrey Leonard, Brian Keith Moore. (Barron, David) (Entered: 02/14/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 129 MOTION to Strike 128 Notice of Filing,, 127 RESPONSE BRIEF, by Jeffrey Leonard, Brian Keith Moore (AKR) (Entered: 02/15/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 130 MOTION for Leave to File Response by Jeffrey Leonard, Brian Keith Moore (AKR) (Entered: 02/15/2007)
135 MOTION for Leave to File by Jeffrey Leonard, Brian Keith Moore brief on application of Cooey case to statute of limitation defense (Attachments: # 1 Exhibit United States v. Swan (D. Neb. 2004)# 2 Proposed Order granting leave to brief application of Cooey v. Strickland to S/L)(Barron, David) (Entered: 03/05/2007)
136 Prisoner Receipt For ORIGINAL Filing Fee; Receipt Number 128684; Balance $ 335.50; Amt Pd 24.00; Into Acct: 5100PL; Balance Due $311.50 (CBD) (Entered: 03/15/2007)
137 MOTION to Intervene by Roger Dale Epperson Epperson motion to intervene in Moore v. (Attachments: # 1 Exhibit Epperson tendered intervenor complaint# 2 Proposed Order granting Epperson's motion to intervene in Moore v. Rees)(Barron, David) (Entered: 03/19/2007)
138 RESPONSE in Opposition re 135 MOTION for Leave to File by Jeffrey Leonard, Brian Keith Mooreto file brief on application of Cooey case to statute of limitation defense filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order denying Plaintiffs' Joint Motion for Leave to File Brief)(Cummings, John) (Entered: 03/23/2007)
139 MEMORANDUM OPINION &ORDER: 1. Moore's Motion for a preliminary injunction 5 barring Dfts from carrying out his execution is DENIED. 2. Moore's motion for the Court to reconsider it prior order quashing deposition subpoena for KY Gov Ernie Fletcher 54 is DENIED. 3. Dfts' motion for an extension of time to file their response to Moore's mtn to compel them to disclose electrocution protocol 85 is GRANTED. The Clerk of Court is directed to file the tendered response into the record. 4. Moore's motion to compel Dfts to disclose KY's electrocution protocol 80 is DENIED. 5. Moore's motions for permission to dispose Dft execution team members 81 110 are GRANTED. 6. Dfts' motion for an extension of time to file their response to Moore's motion to compel discovery 92 is GRANTED. The Clerk of Court is directed to file the tendered response into the record. 7. Moore's motion to compel the Dfts to gather data during their attempts to draw blood from Moore 82 is DENIED. 8. Moore's motion to compel the Dfts to provide answers to his discovery requests 83 is GRANTED in PART and DENIED in PART. 9. The parties shall file briefs addressing solely those issues identified in Section VII of this Memorandum as follows: Plf, Moore's brief is due on or before 4/18/07; Dfts' brief is due on or before 5/16/07; Plf, Moore's reply is due on or before 5/30/07. No other or further briefing shall be permitted

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04/16/2007 04/18/2007

unless directed by Order of Court. The matter will stand submitted for decision upon filing of Moore's reply. 10. All forms of discovery in this action shall be stayed pending further orders of the Court. Signed by Judge Karen K. Caldwell. (AKR)cc: COR (Entered: 03/30/2007)
140 RESPONSE to 80 MOTION for Discovery to Disclose Electrocution Protocol filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. FILED oer Order 139 (Attachments: # 1 Proposed Order)(CBD) (Entered: 04/02/2007)
Clerk's Note re item #6 of 139 Memorandum Opinion &Order directing Clerk "to file the tendered response into the record" : Response was not tendered w/ Motion 92 . Said response was filed on record at DE 97 . (CBD) (Entered: 04/02/2007)
141 RESPONSE in Opposition re 137 MOTION to Intervene by Roger Dale Epperson filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Roger Dale Epperson's Motion to Intervene)(Cummings, John) Additional attachment(s) added on 4/9/2007 (Ratliff, Kay). (Entered: 04/05/2007)
142 REPLY to Response to Motion re 137 MOTION to Intervene by Roger Dale EppersonEpperson's reply to Def. Response Opposing Epperson's Motion Intervene filed by Roger Dale Epperson. (Attachments: # 1 Exhibit KY Supreme Ct. docket sheet in Epperson v. Commonwealth)(Barron, David) Additional attachment(s) added on 4/17/2007 (Ratliff, Kay). (Entered: 04/05/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 137 MOTION to Intervene by Roger Dale Epperson (CBD) (Entered: 04/06/2007)
143 NOTICE OF FILING by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher re 141 Response in Opposition to Motion, (Attachments: # 1 Affidavit of Sharon Brassfield)(Cummings, John) (Entered: 04/06/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 135 MOTION for Leave to File by Jeffrey Leonard, Brian Keith Moore (AKR) (Entered: 04/06/2007)
144 MOTION for Leave by Roger Dale Epperson to file supplemental reply to Def. response opposing Epperson intervening (Attachments: # 1 Exhibit supplemental reply to Def. response opposing Epperson intervention# 2 Exhibit Epperson Grievance rejection notice# 3 Proposed Order proposed order granting Epperson leave supplemental reply on intervention)(Barron, David) (Entered: 04/16/2007)
145 NOTICE OF FILING by Roger Dale Epperson re 142 Reply to Response to Motion,, 141 Response in Opposition to Motion,, 143 Notice of Filing Prison Grievance Rejection Notice (Attachments: # 1 Exhibit Epperson's Grievance Rejection Notice)(Barron, David) (Entered: 04/16/2007)
146 BRIAN KEITH MOORE'S MEMORANDUM OF LAW ON WHETHER HIS "BAD VEINS" PREVENT HIS EXECUTION AND WHETHER THE STATUTE OF LIMITATIONS BARS HIS CLAIMS (BRIEF) by Brian Keith Moore re 139 Memorandum Opinion &Order Moore's Memo of Law on Whether Bad Veins Prevent his Execution and on S/L (Attachments: # 1 Exhibit Declaration of Dr. Mark Heath# 2 Exhibit Curriculum vitate of Dr. Mark Heath# 3 Exhibit Complaint in Cooey v. Taft# 4 Exhibit Notice that exhibit 4 −− 1999 execution protocol being filed under seal# 5 Exhibit Defendants' Response to Production of Documents and Interrogatories in Baze v. Rees# 6 Exhibit In re Harding/Dept. Corrections# 7 Exhibit Dec. 23, 2003 Response to Open Records Request by Ted Shouse# 8 Exhibit Aug 3, 2004 Response to Open Records Request by David M. Barron# 9 Exhibit April 7, 2006 Response to Open Records Request by David M. Barron# 10 Exhibit Notice that exhibit 10 − − 2004 execution protocol is being filed under seal# 11 Exhibit Notice that exhibit 11 − − 2004 revised execution protocol is being filed under seal# 12 Exhibit Oct. 24, 2004 Order in Baze v. Rees# 13 Exhibit Defendants' Notice of Filing of Unredacted Execution protocol under seal in Baze v. Rees# 14 Exhibit Order and Opinion in Baze v. Rees, dated Feb. 11, 2005# 15 Exhibit notice that exhibit 15 −− 2006 execution protocol is being filed under seal# 16 Exhibit Notice of Agreed Substitution of Counsel in Moore v. Simpson# 17 Exhibit Order in Harbison v. Little# 18 Exhibit List of chemicals and equipment on

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04/18/2007
04/18/2007 04/19/2007 04/19/2007
04/20/2007 05/04/2007 05/07/2007 05/08/2007
05/08/2007 05/08/2007 05/09/2007

Banyan Stat Kit 700 crash cart# 19 Exhibit Lethal injection IV Site Placement form for execution of Edward Harper# 20 Exhibit Excerpts from Deposition of Haeberlin in Baze v. Rees)(Barron, David) Modified text to include "RESPONSE BRIEF" on 4/19/2007 (Ratliff, Kay). Modified text to better describe document on 5/18/2007 (Dearborn, Christy). (SEALED Exhibits 4, 10, 11 &15 SEP VOL − filed per Order 206 ) Modified text on 3/17/2008 (CBD). (Entered: 04/18/2007)
147 MOTION for leave to file under Seal Kentucky Execution Protocols (Exhibits 4, 10, 11 &15 to DE 146 ) re 139 Memorandum Opinion &Order, 146 Response Brief, by Brian Keith Moore Motion to File Kentucky Execution Protocols Under Seal (Exhibits 4, 10, 11 &15 to DE 146 ) (Attachments: # 1 Proposed Order granting motion to file execution protocols under seal)(Barron, David) Modified text to better describe document on 4/20/2007 (Dearborn, Christy). (Entered: 04/18/2007)
148 MOTION for Leave by Jeffrey Leonard Leonard's Motion to Allow Case to Proceed Moore's Complaint is Dismissed (Attachments: # 1 Proposed Order denying as moot Leonard's motion to allow case to proceed if Moore's Complaint is Dismissed# 2 Proposed Order granting Leonard's motion to allow case to proceed if Moore's Complaint is Dismissed)(Barron, David) (Entered: 04/18/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 147 MOTION to Seal Document 139 Memorandum Opinion &Order, Terminate Motions, Set Motion and RRDeadlines/Hearings,,,,,,,,,,,,,,,,,,,,,, 146 Notice of Filing,,,,,, by Brian Keith Moore (AKR) (Entered: 04/19/2007)
NOTICE OF DOCKET MODIFICATION TO D. Barron re 146 Notice of Filing; Error: Attorney incorrectly filed this pleading as a Notice of Filing; Entry made by attorney; Correction: Clerk has modified the docket text of 146 to state "RESPONSE BRIEF". In the future, the attorney is advised to contact the ECF help desk if assistance is needed in choosing the correct event for filing; No further action required by counsel. cc: COR (AKR) (Entered: 04/19/2007)
Clerk's Note: 4/18/2007 Clerk rec'd Tendered Sealed Exhibits (Exhibit 4, 10, 11, 15 to 146 Response Brief) re 147 MOTION for leave to file under Seal Kentucky Execution Protocols. Tendered documents will be maintained under seal in Clerk ofc.(CBD) (Entered: 04/20/2007)
149 RESPONSE to Motion re 144 MOTION for Leave by Roger Dale Epperson filed by Unknown Executioners, John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order denying Epperson's Motion to file supplemental reply to Def's Response to motion to intervene.)(Cummings, John) (Entered: 05/04/2007)
150 RESPONSE in Opposition re 148 MOTION for Leave by Jeffrey Leonardto allow case to proceed on his behalf if Moore's complaint is dismissed filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1Proposed Order)(Cummings, John) Modified text to include description of attachment on 5/8/2007 (Ratliff, Kay). (Entered: 05/07/2007)
NOTICE OF DOCKET MODIFICATION TO J. Cummings re 150 Response in Opposition to Motion ; Error: attachment was not described; Entry by attorney; Correction: the Clerk has renamed the attachment. It is necessary that all attachments are adequately described. ex: Exhibit A (incorrect); Exhibit A − Affidavit of John Doe (correct); No further action required by attorney. cc: COR (AKR) (Entered: 05/08/2007)
151 REPLY to Response to Motion re 148 MOTION for Leave by Jeffrey Leonardcase proceeding on behalf of Leonard if Moore's Complaint dismissed filed by Jeffrey Leonard. (Barron, David) (Entered: 05/08/2007)
152 NOTICE by Jeffrey Leonard Leonard's Notice of Withdrawal of Allegation in his Complaint (Barron, David) (Entered: 05/08/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 148 MOTION for Leave to allow case to proceed if Court dismisses Moore's Complaint by Jeffrey Leonard (AKR) (Entered: 05/09/2007)

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05/16/2007 05/17/2007
05/17/2007 05/18/2007 05/18/2007
05/21/2007 05/30/2007

153 MOTION for Extension of Time by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher TO FILE DEFENDANTS' BRIEF PURSUANT TO COURTS MARCH 30, 2007 ORDER (Attachments: # 1 Proposed Order GRANTING Defendants' Motion for Extenstion of Time# 2 Memorandum in Support of Defendants' Motion for Extension of Time)(Cummings, John) (Entered: 05/16/2007)
154 BRIEF ADDRESSING ISSUES IDENTIFIED IN THE COURT'S MEMORANDUM OPINION AND ORDER ENTERED MARCH 30, 2007 (Response to 139 ) Brief Addressing Issues Identified in March 30, 2007 Order filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit 1 − Findings of Fact# 2 Exhibit 2 − Opinion of the Court# 3 Exhibit 3 − ODRC policy 001−09 effective 11−21−01# 4 Exhibit 4 − ODRC policy effective 7−17−03# 5 Exhibit 5 − ODRC policy effective 10−11−06# 6 Exhibit 6 − CPP 9.5 effective 12−17−98# 7 Exhibit 7 − ODRC letter dated 11−19−02# 8 Exhibit 8 − ODRC letter date 5−30−02# 9 Exhibit 9 − DOC letter dated 5−14−02# 10 Exhibit 10 − Open Records letter 8−03−04)(Cummings, John) SEE DE 155 for Exhibits 11−5 Modified text to better describe document and add link to Cont Exh.s at DE 155 on 5/18/2007 (Dearborn, Christy). (Entered: 05/17/2007)
155 CONTINUED EXHIBITS to 154 (Response to 154 ) CONTINUED EXHIBITS 11 − 15 TO DOCUMENT NUMBER 154, DEFENDANTS' BRIEF filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit 11 − Cleveland Plain Dealer article# 2 Exhibit 12 − Lexington Herald Leader Article# 3 Exhibit 13 − Response in Baze and Bowling v. Rees# 4 Exhibit 14 − Deposition of Richard Pershing# 5 Exhibit 15 − Deposition of Warden Glenn Haeberlin)(Cummings, John) Modified text to better describe document on 5/18/2007 (Dearborn, Christy). Additional attachment(s) added on 5/18/2007 (Dearborn, Christy). (Entered: 05/17/2007)
156 ORDER: Motion 153 is granted. Dfts are granted an ext of time to &including 5/17/2007, to file their Brief addressing the issues identified in Court's Memorandum Opnion and Order 139 of 3/30/2007. Signed by Judge Karen K. Caldwell. (CBD)cc: COR (Entered: 05/18/2007)
NOTICE OF DOCKET MODIFICATION TO John Cummings re 155 Continued Exhibits 10 DE 154; Error 1: Exhibit 15 exceeds the 2MB size limit; Entry by attorney; Correction: Clerk has separated the PDF image into two segments, each less than 2MB and entered the corrected exhibit as separate attachments identified as Exhibits 15−1 and 15−2. Counsel is reminded that large documents may not upload properly into ECF or download within a reasonable amount of time, therefore, documents over 2MB must be broken down into 2MB or less segments. Error 2: All pages of Exhibit 12 and pages 7−9 of Exhibit 13 were sideways; Entry by attorney; Correction: Clerk has rotated the pages and entered the corrrected documents as separate attachments. At the browse screen within ECF, the attorney should always open and view each PDF document before proceeding witht the filing. No further action required by counsel. cc: COR (CBD) (Entered: 05/18/2007)
***MOTION SUBMITTED TO CHAMBERS of Pro Se for review: 144 MOTION for Leave to file supplemental reply to Def. response opposing Epperson intervening by Roger Dale Epperson (CBD) (Entered: 05/21/2007)
157 REPLY BRIEF to 155 , 139 , 154 , 146 Def. Brief on if Moore's Bad Veins Prevents LI and appl. of S/L filed by Brian Keith Moore. (Attachments: # 1 Exhibit Second Declaration of Dr. Heath# 2 Exhibit Florida Lethal Injection Protocol as of May 9, 2007# 3 Exhibit California Execution Protocol as of May 2007# 4 Exhibit 1997 Bard Port Implanted Port Catheters Manufactuer Instructions# 5 Exhibit 2004 Bard Port and X−Port Manufacturer Instructions# 6 Exhibit Bard Systems Hohn Central Venous Catheters Instructions for Use# 7 Exhibit News Article − − After States' Longest Delay, Man Executed for Cellmate Murder# 8 Exhibit News Article − − Ohio Executes Man for Killing Cellmate# 9 Exhibit Testimony of Dr. Haas in Baze v. Rees# 10 Exhibit Deposition of Dr. Rafi in Baze v. Rees# 11 Exhibit Testimony of Dr. Hiland in Baze v. Rees# 12 Exhibit Testimony of Nurse Service Administrator Wood in Baze v. Rees# 13 Exhibit Fraknlin Cir. Ct. Findings of Fact and Conclusions of Law in Baze v. Rees# 14 Exhibit Franklin Cir.

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Ct. Order denying Motion to Dismiss in Baze v. Rees# 15 Exhibit page 246 of Denno law review article# 16 Exhibit page 146 of Denno law review article# 17 Exhibit page 222 of Denno law review article# 18 Exhibit Plaintiffs' First Set of Interrogatories in Baze v. Rees# 19 Exhibit Plaintiffs' First Request for Production of Documents in Baze v. Rees# 20 Exhibit page of 181 of Denno law review article# 21 Exhibit Defendants' Response to Discovery Motions in Baze v. Rees# 22 Exhibit Plaintiffs' Second Set of Interrogatories in Baze v. Rees# 23 Exhibit Defendants' Answer to Second Set of Interrogatories in Baze v. Rees# 24 Exhibit Excerpts from testimony of Dr. Dershwitz in Baze v. Rees# 25 Exhibit Excerpts from testimony of Dr. Heath in Baze v. Rees# 26 Exhibit Deposition of Dr. Haas in Baze v. Rees# 27 Exhibit Deposition of Nurse Chanin Hiland in Baze v. Rees# 28 Exhibit Email communication between Daniel Auld and the Kentucky Department of Corrections# 29 Exhibit Declaration of Daniel Auld# 30 Exhibit Defendants' July 11, 2005 Response to Auld Open Records Request# 31 Exhibit Attachment to Defendants' July 11, 2005 Response to Auld Open Records Request)(Barron, David) Additional attachment(s) added on 5/31/2007 (Ratliff, Kay). (Entered: 05/30/2007)
158 NOTICE OF FILING by Brian Keith Moore re 157 REPLY BRIEF,,,,,,,,, Correct exhibit #3 to docket entry #157 − − Moore's Reply Brief (Attachments: # 1 Exhibit May 2007 California Execution Protocol)(Barron, David) (Entered: 05/30/2007)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: re: 139 Memorandum Opinion &Order, 154 RESPONSE, 146 Notice of Filing, 155 RESPONSE, and 157 REPLY BRIEF − schedule as set out in 139 complete. (AKR) (Entered: 05/31/2007)
159 FIRST MOTION to Expedite by Ralph Baze Motion to Expedite Ruling on Baze's Motion to Intervene (Attachments: # 1 Proposed Order granting Baze's motion to expedite ruling on his motion to intervene)(Barron, David) (Entered: 08/14/2007)
160 NOTICE by Ralph Baze Ralph Baze's execution has been set for September 25, 2007 (Attachments: # 1 Exhibit Execution warrant on Ralph Baze)(Barron, David) (Entered: 08/23/2007)
161 EMERGENCY MOTION to Expedite by Ralph Baze Amended Motion to Expedite Ruling on Ralph Baze's Motion to Intervene (Attachments: # 1 Proposed Order granting Baze's motion to expedite ruling on his motion to intervene)(Barron, David) (Entered: 08/23/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 161 EMERGENCY MOTION to Expedite Ruling on Motion to Intervene by Ralph Baze (Execution date set for 9/25/07). (AKR) (Entered: 08/24/2007)
162 EMERGENCY MOTION to Compel by Ralph Baze Motion to Compel Defendants to Conduct Background Checks on Execution Team (Attachments: # 1 Proposed Order granting motion to compel Defendants to conduct background checks on execution team)(Barron, David) (Entered: 08/25/2007)
163 EMERGENCY MOTION lift order staying discovery re 139 Memorandum Opinion &Order, Terminate Motions, Set Motion and RRDeadlines/Hearings,,,,,,,,,,,,,,,,,,,,, by Ralph Baze Baze's Motion to Lift Order Staying Discovery (Attachments: # 1 Proposed Order granting Baze's motion to lift order staying discovery)(Barron, David) (Entered: 08/25/2007)
164 EMERGENCY MOTION FOR SCHEDULING STATUS ORDER by Ralph Baze Baze's emergency motion for status conference and scheduling order (Attachments: # 1 Proposed Order granting motion for a status conference and scheduling order)(Barron, David) (Entered: 08/25/2007)
165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze motion for preliminary injunction pending Supreme Court decision in Cooey (Attachments: # 1 Memorandum in Support of motion for preliminary injunction for Baze pending Cooey cert.# 2 Exhibit 1 − 6CCA order denying motion to vacate Biros injunction# 3 Exhibit 2 − SCOTUS order denying motion to vacate Biros injunction# 4 Exhibit 3 − SDOH order granting Carter preliminary injunction# 5 Exhibit 4 − Jackson v. Taylor# 6 Exhibit 5 − 6CCA Docket sheet Cooey v. Strickland# 7 Exhibit 6 −

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6CCA order staying mandate in Cooey pending cert.# 8 Exhibit 7 − United States v. Swan# 9 Exhibit 8 − Wing Shing Prods. v. Simatelex# 10 Exhibit 9 − In re Literary Works# 11 Exhibit 10 − Marbury v. Colonial Mortgage# 12 Exhibit 11 − KK Motors v. Brunswick)(Barron, David) Additional attachment, PO added on 8/27/2007 (Dearborn, Christy). Modified text to better describe pleading on 8/27/2007 (Dearborn, Christy). Additional attachment(s) added on 8/28/2007 (Ratliff, Kay). (Entered: 08/26/2007)
166 NOTICE OF FILING by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze proposed order granting preliminary injunction pending Cooey cert (Attachments: # 1 Proposed Order granting Baze a preliminary injunction barring his execution pending cert. in Cooey)(Barron, David) (Entered: 08/26/2007)
167 EMERGENCY MOTION to Compel by Ralph Baze motion to compel Defendants to disclose current execution protocol (Attachments: # 1 Proposed Order granting motion to compel disclosure of current execution protocol)(Barron, David) (Entered: 08/26/2007)
168 NOTICE OF FILING by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze additional exhibits to motion for preliminary injunction pending Cooey (Attachments: # 1 Exhibit Motion to reset execution date in Cooey# 2 Exhibit Ohio Supreme Court order refusing to schedule Cooey's execution during LI litigation)(Barron, David) (Entered: 08/27/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell and PSLC for review: 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 167 EMERGENCY MOTION to Compel by Ralph Baze, 164 EMERGENCY MOTION FOR SCHEDULING STATUS ORDER by Ralph Baze, 163 EMERGENCY MOTION lift order staying discovery re 139 Memorandum Opinion &Order by Ralph Baze, 162 EMERGENCY MOTION to Compel by Ralph Baze (CBD) (Entered: 08/27/2007)
169 STRICKEN per Order 208 − RESPONSE in Opposition re 159 FIRST MOTION to Expedite by Ralph Baze, 161 EMERGENCY MOTION to Expedite by Ralph Baze filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Motion to Expedite [DN 159] and Emergency Motion to Expedite [DN 161])(Cummings, John) Additional attachment(s) added on 8/30/2007 (Ratliff, Kay). Modified on 3/17/2008 (CBD). (Entered: 08/29/2007)
170 NOTICE OF FILING by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher re 169 Response in Opposition to Motion, (Attachments: # 1 Exhibit 1 − Petition for Writ of Certiorari)(Cummings, John) Additional attachment(s) added on 8/31/2007 (Ratliff, Kay). (Entered: 08/29/2007)
171 REPLY to Response to Motion re 159 FIRST MOTION to Expedite by Ralph Baze, 161 EMERGENCY MOTION to Expedite by Ralph Baze filed by Ralph Baze. (Attachments: # 1 Exhibit Docket Sheet in Cooey v. Taft et al.)(Palombi, John) (Entered: 08/30/2007)
172 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze motion for injunction until court can decide Baze's motion to intervene (Attachments: # 1 Proposed Order granting motion for injunction until court can decide motion to intervene)(Barron, David) (Entered: 08/30/2007)
173 NOTICE OF FILING by John D. Rees re 170 Notice of Filing (Attachments: # 1 Exhibit Certificate of Service)(Cummings, John) (Entered: 08/30/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 172 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 159 FIRST MOTION to Expedite by Ralph Baze. (AKR) (Entered: 08/31/2007)
174 ORDER: Baze's original and amended motions to expedite 159 (Motion to Expedite Court's ruling on Baze's Motion to Intervene) 161 (Emeregency Amended Motion to Expedite Court's ruling on Baze's Motion to Intervene) are GRANTED. It is anticipated Court will enter order adressing Baze's Motion to Intervene 101

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08/31/2007 08/31/2007 09/01/2007 09/01/2007
09/01/2007

and related motion for additional briefing 114 and 130 in the near future. Signed by Judge Karen K. Caldwell. (CBD)cc: COR Modified text on 9/4/2007 (Dearborn, Christy). (Entered: 08/31/2007)
175 MOTION to Strike 169 Response in Opposition to Motion, by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (Attachments: # 1 Memorandum in Support of Motion to Strike# 2 Proposed Order Granting Motion to Strike# 3 Amended Response In Opposition)(Cummings, John) (Entered: 08/31/2007)
176 NOTICE OF FILING by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 174 Order on Motion to Expedite,, 168 Notice of Filing,, 101 MOTION to Intervene by Ralph Baze, 166 Notice of Filing, cert. petition filed in Cooey v. Strickland (Attachments: # 1 Exhibit certiorari petition in Cooey v. Strickland)(Barron, David) (Entered: 08/31/2007)
177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze motion for injunction based on underlying merits of lethal injection claim (Attachments: # 1 Proposed Order granting injunction pursuant to All Writs Act# 2 Proposed Order granting injunction based on four factor test for injunctions)(Barron, David) (Entered: 09/01/2007)
178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze motion to file excess pages memo of law on injunction LI claim on merits (Attachments: # 1 Proposed Order granting leave to file motion for injunction on merits of LI claim in excess of page limits# 2 Exhibit memo of law in support emergency motion for injunctio pending resolution LI claim on merits# 3 Exhibit List of exhibits to memo of law in support of injunction pending merits ruling on LI claim# 4 Exhibit # 1 − − Lex. Herald Leader article on Gov. stmt on signing Baze death warrant# 5 Exhibit #2 − − CNN article −− lethal injection creator suggests changing the chemicals# 6 Exhibit #3 − − news article on Newton execution# 7 Exhibit #4 − − second news article on Newton execution# 8 Exhibit #5 − − Testimony of Dorian Hall in Evans v. Saar# 9 Exhibit #6 − − Liptak article on Clark execution# 10 Exhibit #7 −− CNN article on Clark execution# 11 Exhibit #8 − − Toledo Blade article on Clark execution# 12 Exhibit #9 −− Plain Dealer article on Clark execution# 13 Exhibit #10 − − Florida Commission Report on Diaz execution# 14 Exhibit #11 − − Dupree Declaration# 15 Exhibit news article on Diaz execution# 16 Exhibit #13 − − second news article on Diaz execution# 17 Exhibit Middendort national television interview# 18 Exhibit notice that exhibits 15−36, 37−51, and 52−66 are filed separately as notice of filings)(Barron, David) (Entered: 09/01/2007)
179 NOTICE OF FILING by Ralph Baze re 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze emergency −−−exhibits 15−36 to memo of law support injunction on LI merits (Attachments: # 1 Exhibit #15 −− Dr. Concannon Aff. in Brown v. Beck# 2 Exhibit #16 − − Dr. Concannon curriculum vitae# 3 Exhibit #17 − − Third Declaration of Dr. Heath# 4 Exhibit Dr. Heath curriculum vitae# 5 Exhibit #19 − − Furnish v. Commonwealth# 6 Exhibit #20 − − sodium thiopental manufacturer's package insert# 7 Exhibit #21 − − Dr. Concannon Declaration in Morales# 8 Exhibit #22 − − Dr. Geiser Affidavit# 9 Exhibit #23 − − Dr. Geiser curriculum vitae# 10 Exhibit #24 − − Report of the AVMA Panel on Euthanasia# 11 Exhibit #25 − − 8th Annual Report on the Oregon Death With Dignity Act# 12 Exhibit #26 − − ASA Practice Advisory for Intraoperative Awarenee and Brain Function Monitoring# 13 Exhibit #27 part I −− book chapter on monitoring depths of anesthesia# 14 Exhibit #27 part II − − Book chapter on monitoring depths of anesthesia# 15 Exhibit #28 − − May 2007 California execution protocol# 16 Exhibit #29 − − List of items on Banyon Stat Kit 700 crash cart# 17 Exhibit #30 − − Lethal injection I.V. site placement form on Eddie Harper# 18 Exhibit #31 − − toxicology results on Harper's right axilla# 19 Exhibit #32−− Harper toxicology results −vena cava# 20 Exhibit #33 − − Harper toxicology results − − heart# 21 Exhibit #34 − − excerpt from Disposition of Toxic Drugs and Chemicals in Man# 22 Exhibit Defendant Fletcher stmt. on intent to sign Baze death warrant# 23 Exhibit #36 − − Defendants' Rule 26 disclosures)(Barron, David) (Entered: 09/01/2007)

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 27 of 34

09/01/2007
09/01/2007
09/04/2007 09/04/2007 09/06/2007 09/07/2007 09/10/2007 09/10/2007

180 NOTICE OF FILING by Ralph Baze re 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 179 Notice of Filing,,,,,,,, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze emergency − − exhibits 37−51 to memo of law support of injunction LI merits (Attachments: # 1 Exhibit #37 −− Testimony of executioner in Evans v. Saar# 2 Exhibit #38 − − Morales v. Tilton# 3 Exhibit #39 −− Cooey v. Taft (Hill injunction)# 4 Exhibit #40 − − Taylor v. Crawford# 5 Exhibit #41 − − Cooey v. Taft (Biros injunction)# 6 Exhibit #42 − − Cooey v. Taft (Carter injunction)# 7 Exhibit #43 − − Docket sheet in Cooey in district ct.# 8 Exhibit #44 − − Morales v. Hickman# 9 Exhibit #45 − − order granting Bowling injunction in 2004 in Baze and Bowling v. Rees# 10 Exhibit #46 − − Technical Report: effect of pancuronium on solubility of sodium thiopental# 11 Exhibit #47 − − Rocconi Declaration# 12 Exhibit #48 − − execution log for Anderson execution# 13 Exhibit #49 − − exhibit log for Babbit execution# 14 Exhibit #50 − − execution log for Siripongs execution# 15 Exhibit #51 − − execution log for Rich execution)(Barron, David) (Entered: 09/01/2007)
181 NOTICE OF FILING by Ralph Baze re 180 Notice of Filing,,,,, 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 179 Notice of Filing,,,,,,,, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze emergency − − exhibit 52−66 of memo of law support injunction on LI merits (Attachments: # 1 Exhibit #52 − − Brown v. Beck# 2 Exhibit #53 − − Adcock Affidavit# 3 Exhibit #54 − − Stevens Affidavit# 4 Exhibit #55 − − Wells Affidavit# 5 Exhibit #56 − − McHone toxicology results# 6 Exhibit #57 − − Syriani toxicology results# 7 Exhibit #58 − − Boyd toxicology results# 8 Exhibit #59 − − Simpson toxicology results# 9 Exhibit #60 − − Dr. Lubarsky's curriculum vitae# 10 Exhibit #61 − − Inadequate Anesthesia in Lethal Injection by Execution − − Lancet medical journal article# 11 Exhibit #62 − − Lubarsky Affidavit in Harbison# 12 Exhibit #63 − − news article on Steckel execution in Delaware# 13 Exhibit #64 − − Jackson v. Taylor# 14 Exhibit #65 − − Patterson Declaration on Babbit execution# 15 Exhibit #66 − − Dorian Hall Affidavit on Clark execution)(Barron, David) (Entered: 09/01/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se Law Clerk for review: 175 MOTION to Strike 169 Response in Opposition to Motion, by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (AKR) (Entered: 09/04/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell / Pro Se Law Clerk for review: 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze. (AKR) (Entered: 09/04/2007)
182 NOTICE by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 174 Order on Motion to Expedite,,,,,, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 172 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 160 Notice NOTICE THAT BAZE'S EXECUTION IS AT 7 P.M. CENTRAL TIME ON SEPT. 25TH (Barron, David) (Entered: 09/06/2007)
183 NOTICE OF FILING by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 174 Order on Motion to Expedite,,,,,, 101 MOTION to Intervene by Ralph Baze supplemental exh. to motion for injunction pending Cooey−−Biros' cert. pet. (Attachments: # 1 Exhibit petition for writ of certiorari in Biros v. Strickland (S/L issue))(Barron, David) (Entered: 09/07/2007)
***FILE SUBMITTED TO CHAMBERS of PRO SE LAW CLERK for review: 183 Notice of Filing supplemental exhibit to emergency motion for prel inj 165 , motion to expedite 174 &motion to intervene 101 . (AKR) (Entered: 09/10/2007)
184 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze Baze's motion for preliminary injunction pending Biros v. Strickland (Attachments: # 1 Exhibit 6th cir. docket sheet in Biros v. Strickland# 2 Exhibit Ohio's merits brief in Biros v. Strickland# 3 Exhibit Biros' merits brief in Biros v. Strickland# 4 Exhibit proposed order granting Baze a preliminary injunction pending outcome of Biros v. Strickland)(Barron, David) (Entered: 09/10/2007)

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 28 of 34

09/11/2007 09/11/2007 09/12/2007 09/13/2007 09/13/2007 09/14/2007 09/25/2007
09/25/2007 09/26/2007

***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se Law Clerk for review: 184 EMERGENCY MOTION for Preliminary Injunction pending Biros v. Strickland by Ralph Baze. (AKR) (Entered: 09/11/2007)
185 MOTION to Withdraw as Attorney by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (Attachments: # 1 Proposed Order Granting Defendants' Motion to Withdraw)(Cummings, John) (Entered: 09/11/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 185 MOTION to Withdraw as Attorney (Holly Harris−Ray) by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (AKR) (Entered: 09/12/2007)
186 ORDER: that Defendant's Motion 185 to withdraw as atty of record is granted. ( Attorney Holly Harris−Ray terminated) . Signed by Judge Karen K. Caldwell. (AKR)cc: COR, Holly Harris−Ray. Modified text to include "to withdraw as atty of record" for better description of pleading on 9/13/2007 (Ratliff, Kay). (Entered: 09/13/2007)
187 NOTICE by Ralph Baze re 165 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 174 Order on Motion to Expedite,,,,,, Motions Submitted, 101 MOTION to Intervene by Ralph Baze, 177 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 172 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze, 178 EMERGENCY MOTION for Leave to File Excess Pages by Ralph Baze, 184 EMERGENCY MOTION for Preliminary Injunction by Ralph Baze Commonwealth has sought reconsideration of Baze's stay of execution (Barron, David) (Entered: 09/13/2007)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se Law Clerk for review: 187 Notice of Commonwealth seeking reconsideration of Supreme Court stay. (AKR) (Entered: 09/14/2007)
188 MEMORANDUM OPINION &ORDER: 1. Baze's Mtn for leave to supplement Baze's Reply to Response in Oppostion to Emergency Mtn to Intervene (dkt 114 ) is GRANTED. 2. Plfs, Moore &Leonards's Joint Mtn to Strike Portions of Dfts' Rooker−Feldman Memorandum that argue Moore &Leonard's suit should be dismissed (dkt 129 ) is DENIED; their "Joint Mtn for leave to file a response to Dfts' Rooker−Feldman Memorandum" (dkt 130 ) is GRANTED. 3. Baze's "Emergency Mtn to Intervene as Plf−Intervenor" (Dkt 101 ) is DENIED. 4. Following mtns by prop intervenor Ralph Baze: a. "Emergency Mtn to Compel Dfts to conduct approp background checks on all present members of execution team &to disclose to counsel for Baze all non−identifying results of those checks" (Dkt 162 ) ; b. "Emergency Mtn to partially lift order staying discovery" (Dkt 163 ); c. "Emergency Mtn for a status conference on litigation concerning Ralph Baze &for a scheduling order setting dealines to respond to motions &to comply with any discovery" (Dkt 164 ); d. "Emergency Mtn for a preliminary injunction barring Ralph Baze's execution pending the Supreme Court of the US's disposition of the petition for certiorari in Cooley v. Strickland" (Dkt 165 ); e. "Emergency Mtn to compel dft to disclose a copy of execution protocol it intends to use to execute Ralph Baze" (Dkt 167 ); f. "Emergency Mtn for a preliminary injunction barring Ralph Baze's execution pending a ruling on his motion to intervene" (Dkt 172 ); g. "Emergency Mtn for a preliminary injunction barring Ralph Baze's execution pending resolution of the merits of his challenge to dfts' lethal injection chemicals &procedures" (Dkt 177 ); and h. "Emergency Mtn for leave under Local Rule 7.1 to file a memorandum of law in excess of 40 pages in support of Ralph Baze's emergency mtn for preliminary injunction pending resolution of the merits of his challenge to dfts' lethal injection chemicals &procedures" (Dkt 178 ) are DENIED AS MOOT. 5. This is a final and appealable order and there is no just cause for delay. Signed by Judge Karen K. Caldwell. (AKR)cc: COR, fax to KY Supreme Court (Entered: 09/25/2007)
189 RESPONSE to Defendants' Rooker−Feldman Memorandum 127 filed by Jeffrey Leonard, Brian Keith Moore. filed pursuant to order of Court re: 188 . (AKR) (Entered: 09/26/2007)
190 MEMORANDUM OPINION &ORDER: 1. Bowling's "Motion for Leave to Supplement Thomas Clyde Bowling's Reply to Response in Opposition to Emergency Mtn to Intervene as Plf−Intervenor" (Dkt 115 ) is GRANTED. 2.

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 29 of 34

09/26/2007 10/01/2007
10/01/2007 10/01/2007 10/22/2007 10/24/2007 10/24/2007 10/25/2007 10/29/2007
11/13/2007 11/14/2007 11/15/2007

Bowling's "Emergency Motion to Intervene as Plf−Intervenor" (Dkt 100 ) is DENIED. 3. This is a final and appealable order and there is no just cause for delay.. Signed by Judge Karen K. Caldwell. (AKR)cc: COR (Entered: 09/26/2007)
191 ORDER: Plfs' "Joint Motion for Leave to File a Brief on the Application of the Affirmative Defense of Statute of Limitations in Light of Cooey v. Strickland, Decided by the Sixth Circuit on March 2, 2007" (Dkt 135 ) is DENIED AS MOOT. Signed by Judge Karen K. Caldwell. (AKR)cc: COR (Entered: 09/26/2007)
192 MEMORANDUM OPINION AND ORDER: IT IS ORDERED AS FOLLOWS: 1. Epperson's 144 "MOTION for Leave to File Supplemental Reply to Defendants' Response in Opposition to Roger Dale Epperson's Motion to Intervene as Plaintiff−Intervenor" is GRANTED; 2. Roger Dale Epperson's 137 "MOTION to Intervene as Plaintiff−Intervenor is GRANTED &the Clerk is directed to file his tendered Intervenor Complaint into the record. Signed by Judge Karen K. Caldwell. (MWZ)cc: COR (Entered: 10/01/2007)
193 SUPPLEMENTAL REPLY To 141 Response In Opposition To Roger Dale Epperson's 137 Motion To Intervene As Plaintiff−Intervenor filed by Roger Dale Epperson. (Ordered filed per 192 Memorandum Opinion &Order.) (Attachments: # 1 Exhibit Epperson Grievance rejection notice)(MWZ) (Entered: 10/02/2007)
194 Intervenor COMPLAINT For Declaratory Judgment And Injunctive Relief, filed by Roger Dale Epperson. (Ordered filed per 192 Memorandum Opinion &Order.)(MWZ) (Entered: 10/02/2007)
195 ANSWER to Intervenor Complaint by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher.(Cummings, John) (Entered: 10/22/2007)
196 NOTICE OF APPEAL as to 190 Memorandum Opinion &Order, Terminate Motions,,, 188 Memorandum Opinion &Order, Terminate Motions,,,,,,,,,,,,,,,,,, by Thomas Clyde Bowling, Ralph Baze. (Palombi, John) (Entered: 10/24/2007)
197 MOTION for Leave to Appeal in forma pauperis by Thomas Clyde Bowling, Ralph Baze (Attachments: # 1 Affidavit Baze Affidavit of Indigency# 2 Affidavit Bowling Affidavit of Indigency# 3 Proposed Order Order Granting IFP Status)(Palombi, John) (Entered: 10/24/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se Law Clerk for review: 197 MOTION for Leave to Appeal in forma pauperis by Thomas Clyde Bowling, Ralph Baze. (AKR) (Entered: 10/25/2007)
198 ORDER: 1) Ralph Baze and Thomas Bowling's Motion to Proceed In Forma Pauperis onAppeal [Dkt. 197] is DENIED, without prejudice 2) Ralph Baze and Thomas Bowling may file a renewed application to proceed in forma pauperis on appeal that complies with the requirements of 28 U.S.C. 1915 and Fed. R. App. P. 24 within 15 days of the entry of this Order. Signed by Judge Karen K. Caldwell. (CBD)cc: COR, 6CCA, SKV (Entered: 10/29/2007)
199 MOTION for Leave to Appeal in forma pauperis by Thomas Clyde Bowling, Ralph Baze (Attachments: # 1 Proposed Order # 2 Exhibit Baze Inmate Account Statement# 3 Exhibit Bowling Inmate Account Statement# 4 Exhibit Baze Affidavit of Indigency# 5 Exhibit Bowling Affidavit of Indigency)(Palombi, John) (Entered: 11/13/2007)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk for review: 199 MOTION for Leave to Appeal in forma pauperis by Thomas Clyde Bowling, Ralph Baze (CBD) (Entered: 11/14/2007)
200 ORDER: Appellant's (Ralph Baze) Motion 199 for Leave to Appeal in forma pauperis is GRANTED 2) appellant required to pay full appellate filing fee of $455.00 3) appellant assessed an initial partial filing fee of $37.89; amt shall be pd to Clerk of this Court 4) prisoner's cutodian shall submit 20% of prisoner's income for the preceding month, but only when the amt exceeds $10.00, until full appellate filing fee has been paid 5) Clerk serve copy of this order upon Jialer/Warden of the institution in which the appellant is currently confined and upon the Clerk of the United States Courtof Appeals for the Sixth Circuit. Signed by Judge Karen K.

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 30 of 34

11/15/2007
11/16/2007 11/19/2007 11/21/2007 11/26/2007 11/26/2007 12/11/2007 12/12/2007 01/29/2008 01/30/2008 03/17/2008

Caldwell. (CBD)cc: COR, 6CCA, Finance, SKV, Warden of KY State Penitentiary (Entered: 11/15/2007)
201 ORDER: Appellant's (Thomas Clyde Bowling) Motion 199 for Leave to Appeal in forma pauperis is GRANTED 2) appellant required to pay full appellate filing fee of $455.00 3) appellant assessed an initial partial filing fee of $33.25; amt shall be pd to Clerk of this Court 4) prisoner's cutodian shall submit 20% of prisoner's income for the preceding month, but only when the amt exceeds $10.00, until full appellate filing fee has been paid 5) Clerk serve copy of this order upon Jialer/Warden of the institution in which the appellant is currently confined and upon the Clerk of the United States Court of Appeals for the Sixth Circuit. Signed by Judge Karen K. Caldwell. (CBD)cc: COR, 6CCA, Finance, SKV, Warden of Ky State Penitentiary (Entered: 11/15/2007)
202 MOTION for Reconsideration re 201 Order Directing Prisoner Payment,,,, 200 Order Directing Prisoner Payment, Terminate Motions,,,,,, by Thomas Clyde Bowling, Ralph Baze (Attachments: # 1 Proposed Order)(Palombi, John) (Entered: 11/16/2007)
203 ORDER: (1) Ralph Baze &Thomas Bowling's Motion to Reconsider 202 is DENIED . Signed by Judge Karen K. Caldwell. (AKR)cc: COR, 6CCA, Vrolijk (Entered: 11/19/2007)
204 MOTION to Withdraw as Attorney by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher (Attachments: # 1 Proposed Order Granting Motion)(Cummings, John) (Entered: 11/21/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se for review: 204 MOTION to Withdraw as Attorney by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (AKR) (Entered: 11/26/2007)
205 ORDER: 1. Jeffrey T. Middendorf's Motion to Withdraw [Dkt 204] is GRANTED Motion to Withdraw as Attorney. (Attorney Jeffrey T. Middendorf terminated). Signed by Judge Karen K. Caldwell on 11/26/2007. (AKR)cc: COR (Entered: 11/26/2007)
206 MOTION to Withdraw by Jeffrey Leonard motion to withdraw as intervenor plaintiff due to commutation of death sentence Motions referred to Pro Se. (Attachments: # 1 Exhibit Governor's order commuting Leonard's death sentence, # 2 Proposed Order granting Leonard's motion to withdraw from case)(Barron, David) (Entered: 12/11/2007)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 206 MOTION to Withdraw by Jeffrey Leonard motion to withdraw as intervenor plaintiff due to commutation of death sentence. (AKR) (Entered: 12/12/2007)
207 MOTION to Withdraw as Attorney by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher Motions referred to Pro Se. (Attachments: # 1 Proposed Order Granting Motion to Withdraw as Counsel)(Self, Thomas) (Entered: 01/29/2008)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell/Pro Se for review: 207 MOTION to Withdraw as Attorney by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (AKR) (Entered: 01/30/2008)
208 ORDER: 1) Brian Keith Moore's Motion 147 to File Kentucky Execution ProtocolUnder Seal is GRANTED 2) Jeoffrey Leonard's Motion 206 to Withdraw as Intervenor Plaintiff is GRANTED. Intervenor Complaint filed by Jeffrey Leonard is DISMISSED WITH PREJUDICE. Jgm shall be ent contemporaneously herewith. 3) Jeffrey Leonard's Motion 148 to Allow Case to Proceed on his Behalfif this Court Dismisses Brian Keith Moore's Complaint is DENIED AS MOOT. 4) Defendants' Motion to Strike Defendants' Response in Opposition to MovantRalph Baze's Motions to Expedite Ruling on Baze's Emergency Motion to Intervene as Plaintiff−Intervenor, and to File Amended Response in Opposition to the Motion 175 is GRANTED. Clerk of the Court shall STRIKE from the Record the Defendants' original Response 169 and shall FILE the Defendants' tenderedAmended Response 175 (pt.4) into the record. 5) Proposed Intervenor Ralph Bazes Emergency Motion for a Preliminary Injunction Barring Ralph Baze's

Case 3:06-cv-22 As of: 01/18/2016 08:29 PM EST Page 31 of 34

03/17/2008 03/17/2008 03/17/2008
04/21/2008 05/09/2008
05/20/2008 05/21/2008 08/07/2008
08/25/2008
09/03/2008 09/03/2008

Execution Pending Disposition of Biros v. Strickland, which the Sixth Circuit has Set for Oral Argument on November 1, 2007 184 is DENIED AS MOOT 6) Thomas L. Self's Motion to Withdraw as Counsel [Record No. 207] isGRANTED. Signed by Judge Karen K. Caldwell on 3/17/2008.(CBD)cc: COR, 6CCA, SKV (Entered: 03/17/2008)
Attorney Update. Attorney Thomas L. Self terminated. (CBD) (Entered: 03/17/2008)
209 AMENDED RESPONSE IN OPPOSITION TO MOVANT RALPH BAZES MOTION 159 TO EXPEDITE RULING ON BAZES EMERGENCY MOTION 161 TO INTERVENE AS PLAINTIFF−INTERVENOR filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (CBD) (Entered: 03/17/2008)
210 JUDGMENT: 1) Pltf Jeoffrey Leonard filed a civil rights action pursuant to 42 U.S.C. § 1983 against John Rees; Thomas Simpson; Scott Haas; Governor Ernie Fletcher; and Unknown Executioners 2) Cmp is DISMISSED WITH PREJUDICE 3) Jgm ent in favor of dfts 4) Court certifies any appeal would not be taken in good faith. 5) This is a FINAL AND APPEALABLE Jgm and there is no just cause for delay 6) matter is DISMISSED and STRICKEN. Signed by Judge Karen K. Caldwell on 3/17/2008.(CBD)cc: COR, 6CCA, SKV (Entered: 03/17/2008)
211 MOTION Allow case to proceed despite Baze v. Rees by Brian Keith Moore, Roger Dale Epperson Motions referred to Pro Se. (Attachments: # 1 Proposed Order granting motion to allow case to proceed)(Barron, David) (Entered: 04/21/2008)
212 RESPONSE in Opposition re 211 MOTION Allow case to proceed despite Baze v. Rees by Brian Keith Moore, Roger Dale Epperson filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Exhibit 1 − Brief for Petitioners, Page 14, No. 07−5439, # 2 Exhibit 2 − U.S. Supreme Court's September 25, 2007 Order, # 3 Exhibit 3 − U.S. Supreme Court's October 3, 2007 Order, # 4 Proposed Order Denying Petitioners Motion to Allow Case to Proceed On a Limited Basis)(Cummings, John) (Entered: 05/09/2008)
213 REPLY to Response to Motion re 211 MOTION Allow case to proceed despite Baze v. Rees by Brian Keith Moore, Roger Dale Epperson Plaintiffs Moore and Epperson's Joint Reply to Defendants' Response in Opposition to Plaintiffs' Motion to Allow Case to Proceed on a Limited Basis in Light of Baze v. Rees filed by Brian Keith Moore, Roger Dale Epperson. (Barron, David) (Entered: 05/20/2008)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk for review: 211 MOTION Allow case to proceed despite Baze v. Rees by Brian Keith Moore, Roger Dale Epperson. (AKR) (Entered: 05/21/2008)
214 MOTION to Stay by Brian Keith Moore, Roger Dale Epperson Motion to stay proceedings and hold case in abeyance pending outcome of administrative procedures lethal injection appeal Motions referred to Pro Se. (Attachments: # 1 Exhibit #1 − − Order in Morales v. Cate, # 2 Exhibit #2 − − Order in Evans v. Saar, # 3 Exhibit #3 − − joint motion in Evans v. Saar, # 4 Proposed Order granting motion to hold proceedings in abeyance)(Barron, David) (Entered: 08/07/2008)
215 RESPONSE in Opposition re 214 MOTION to Stay by Brian Keith Moore, Roger Dale Epperson Motion to stay proceedings and hold case in abeyance pending outcome of administrative procedures lethal injection appeal filed by John D. Rees, Thomas Simpson, Scott Haas, Ernie Fletcher. (Attachments: # 1 Proposed Order Denying Plaintiffs' Joint Motion to Hold Proceedings in Abeyance Pending Outcome of Administrative Procedures Lethal Injection Appeal)(Cummings, John) (Entered: 08/25/2008)
216 EX PARTE MOTION for Order by Thomas Clyde Bowling (Motions referred to Pro Se). (AKR) (Entered: 09/03/2008)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk for review: 216 EX PARTE MOTION for Order by Thomas Clyde Bowling (motion w/proposed order mailed to Pro Se Law Clerk). (AKR) (Entered: 09/03/2008)

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09/04/2008 09/05/2008 03/19/2009 03/25/2009 03/26/2009
03/01/2010 03/01/2010
03/01/2010
03/01/2010 03/02/2010 03/05/2010
03/05/2010

217 REPLY to Response to Motion re 214 MOTION to Stay by Brian Keith Moore, Roger Dale Epperson Motion to stay proceedings and hold case in abeyance pending outcome of administrative procedures lethal injection appeal filed by Brian Keith Moore, Roger Dale Epperson. (Barron, David) (Entered: 09/04/2008)
***MOTION SUBMITTED TO CHAMBERS of Judge Caldwell for review: 214 MOTION to Stay by Brian Keith Moore, Roger Dale Epperson Motion to stay proceedings and hold case in abeyance pending outcome of administrative procedures lethal injection appeal (CBD) (Entered: 09/05/2008)
218 ORDER of USCA as to 196 Notice of Appeal filed by Thomas Clyde Bowling, Ralph Baze: Upon consideration of the appellants motion to voluntarily dismiss the appeal herein pursuant to Rule 42(b), Federal Rules of Appellate Procedure, It is ORDERED that the motion is GRANTED and the appeal is dismissed. (Attachments: # 1 Cover Letter)(CBD) (Entered: 03/19/2009)
219 ORDER: Bowlings ex parte Motion 216 is DENIED AS MOOT. Signed by Judge Karen K. Caldwell on 3/25/2009. (CBD)cc: COR (Entered: 03/25/2009)
220 ORDER: 1. Plaintiffs Joint Motion to Allow Case to Proceed on a Limited Basis in Light of Baze v. Rees, 2008 WL 17733259 211 is DENIED. 2. Plaintiffs Joint Motion to Hold Proceedings in Abeyance Pending Outcome of Administrative Procedures Lethal Injection Appeal 214 is DENIED. Signed by Judge Karen K. Caldwell on 3/26/2009. (CBD)cc: COR Modified text (cleanup) on 3/26/2009 (CBD). (Entered: 03/26/2009)
221 EMERGENCY MOTION for Leave by Roger Dale Epperson, Brian Keith Moore motion for leave to file sealed motion to unseal portions of the 2006 execution protocol Motions referred to Pro Se. (Attachments: # 1 Proposed Order granting leave to file a sealed motion to unseal portions of the 2006 execution protocol)(Barron, David) (Entered: 03/01/2010)
222 SEALED MOTION to unseal portions of the Execution Protocol filed on behalf of Brian Keith Moore re 221 EMERGENCY MOTION for Leave by Roger Dale Epperson, Brian Keith Moore to file sealed motion to unseal portions of the 2006 execution protocol. (MAINTAINED IN PAPER as a SEALED DOCUMENT IN THE CLERK'S OFFICE) (CBD) Modified event to Motion on 3/1/2010 (CBD). (Entered: 03/01/2010)
NOTICE OF DOCKET MODIFICATION TO ALL COUNSEL OF RECORD re 222 MOTION to Unseal Portions of the Execution Protocol; Error: Incorrect event "Tendered Sealed Document" was used for docketing of this pleading; Entry by clerk; Correction: Clerk has re−defined the entry as a Motion, assigned DE No. 222 and modified text to reflect "SEALED Motion" filed as of 3/1/2010; No further action required by counsel cc: COR (CBD) (Entered: 03/01/2010)
223 RESPONSE to 221 Plaintiff's Emergency Motion for Leave to File Sealed Motion to Unseal Portions of Execution Protocols filed by Ernie Fletcher, Scott Haas, John D. Rees, Thomas Simpson, Unknown Executioners. (Cummings, John) (Entered: 03/01/2010)
***MOTION SUBMITTED TO CHAMBERS of Pro Se Law Clerk for review: re 221 EMERGENCY MOTION for Leave by Roger Dale Epperson, Brian Keith Moore motion for leave to file sealed motion to unseal portions of the 2006 execution protocol (CBD) (Entered: 03/02/2010)
224 NOTICE by Roger Dale Epperson, Brian Keith Moore re 223 RESPONSE, 222 MOTION to Unseal Portions of the Execution Protocol Supplement to emergency motion to unseal portions of Defendants' execution protocol (Attachments: # 1 Exhibit Defendants' response in state court entitled "response in opposition" but saying Defendants do not object to unsealing portions of the execution protocol Plaintiffs request be unsealed)(Barron, David) (Entered: 03/05/2010)
225 EMERGENCY MOTION to Expedite by Roger Dale Epperson, Brian Keith Moore motion to expedite ruling on Plaiintiffs' emergency motion to unseal portions of Defendants' execution protocol, EMERGENCY MOTION for Order by Roger Dale Epperson, Brian Keith Moore motion for order on Plaintiffs' motion to unseal portions of Defendants' execution protocol Motions referred to Pro Se.

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03/05/2010
03/05/2010
08/02/2010 09/19/2012
10/10/2012 10/10/2012 10/29/2012 10/29/2012 10/30/2012 10/31/2012 10/13/2015

(Attachments: # 1 Proposed Order granting Plaintiffs' motion to expedite ruling on unsealing portions of execution protocols)(Barron, David) (Entered: 03/05/2010)
226 SUPPLEMENTAL MOTION to Unseal Document by Roger Dale Epperson, Brian Keith Moore supplement to emergency motion to unseal portions of Defendants' execution protocol [Docket No. 222] Motions referred to Pro Se. (Attachments: # 1 Exhibit Defendants' response in state court entitled "response in opposition" but saying Defendants do not object to unsealing portions of the execution protocol Plaintiffs request be unsealed)(Barron, David) (Entered: 03/05/2010)
227 ORDER: 1. Plaintiffs Emergency Motion for Leave to File a Sealed Motion to Unseal Portions of the Execution Protocols 221 is GRANTED. 2. Plaintiffs Emergency Motion for Ruling and to Expedite Ruling on Plaintiffs Motion to Unseal Portions of the Execution Protocol 225 is GRANTED. 3. Plaintiffs Emergency Motion to Unseal Portions of the Execution Protocols 222 and Emergency Supplement to Emergency Motion to Unseal Portions of the Execution Protocol 226 are DENIED. Signed by Judge Karen K. Caldwell on 3/5/2010. (CBD)cc: COR (Entered: 03/05/2010)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review and possible scheduling: 1 Complaint, 194 Intervenor Complaint (CBD) (Entered: 08/02/2010)
228 ORDER: 1. Within 21 days, plaintiffs Moore and Epperson may file a single memorandum not to exceed fifteen pages in length addressing the matters described herein. 2. Within 21 days thereafter, defendants Rees, Simpson, Haas, and Fletcher may file a single response not to exceed fifteen pages in length. 3. Within 14 days thereafter, plaintiffs Moore and Epperson may file a single reply not to exceed ten pages in length. 4. No further briefing will be permitted without prior order of the Court. 5. The Court will dismiss this case, without prejudice, if no response is timely filed. Signed by Judge Karen K. Caldwell on 9/19/2012.(AKR)cc: COR (Entered: 09/19/2012)
229 INCORRECT − RESPONSE TO ORDER TO SHOW CAUSE by Roger Dale Epperson, Brian Keith Moore 228 filed by Roger Dale Epperson, Brian Keith Moore. (Barron, David) Modified by adding text Incorrect on 10/11/2012 (AKR). SEE DE 230 for correct entry. (Entered: 10/10/2012)
230 RESPONSE TO ORDER TO SHOW CAUSE by Roger Dale Epperson, Brian Keith Moore 228 corrected response to order to show cause filed by Roger Dale Epperson, Brian Keith Moore. (Barron, David) (Entered: 10/10/2012)
231 RESPONSE TO ORDER TO SHOW CAUSE by Ernie Fletcher, Scott Haas, John D. Rees, Thomas Simpson, Unknown Executioners 228 filed by Ernie Fletcher, Scott Haas, John D. Rees, Thomas Simpson, Unknown Executioners. (Attachments: # 1 Proposed Order Dismissing Complaint)(Combs, Brenn) (Entered: 10/29/2012)
Attorney Update. Attorney Brenn Oliver Combs for Ernie Fletcher,Brenn Oliver Combs for Scott Haas,Brenn Oliver Combs for John D. Rees,Brenn Oliver Combs for Thomas Simpson,Brenn Oliver Combs for Unknown Executioners added. (CBD) (Entered: 10/29/2012)
232 REPLY to 231 Reply to Defendants' Response to Show Cause Order filed by Roger Dale Epperson, Brian Keith Moore. (Attachments: # 1 Exhibit Epperson trial docket sheet excerpt)(Barron, David) (Entered: 10/30/2012)
***FILE SUBMITTED TO CHAMBERS of Judge Caldwell for review: 230 Response to Order to Show Cause, 231 Response to Response re Order to Show Cause, 232 REPLY re Order 228 to Show Cause (CBD) (Entered: 10/31/2012)
233 MEMORANDUM OPINION &ORDER: 1. The complaints of plaintiffs Brian Keith Moore [R. 1] and Roger DaleEpperson [R. 194] are DISMISSED WITH PREJUDICE.2. The Court will enter a Judgment contemporaneously with this Order.3. This action is DISMISSED and STRICKEN from the Court's docket.4. This is a final and appealable Order and there is no just cause for delay. Signed by Judge Karen K. Caldwell on 10/13/2015.(AKR)cc: COR (Entered: 10/13/2015)

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10/13/2015

234 JUDGMENT: 1. Judgment is entered in favor of the defendants with respect to all issues raised in this proceeding. 2. This action is DISMISSED and STRICKEN from the Court's docket. 3. This is a FINAL and APPEALABLE Judgment and there is no just cause for delay. Signed by Judge Karen K. Caldwell on 10/13/2015.(AKR)cc: COR (Entered: 10/13/2015)