491 F.3d 804 (8th Cir. 2007), 06-2748, Nooner v. Norris

Docket Nº:06-2748.
Citation:491 F.3d 804
Party Name:Terrick Terrell NOONER, Appellee, Don William Davis, Intervenor-Appellee v. Larry NORRIS, in his official capacity as Director, Arkansas Department of Correction; Gaylon Lay, in his official capacity as Warden, Arkansas Department of Correction, Cummins Unit; Wendy Kelly, in her official capacity as Deputy Director of Health and Correctional Progra
Case Date:July 09, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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491 F.3d 804 (8th Cir. 2007)

Terrick Terrell NOONER, Appellee,

Don William Davis, Intervenor-Appellee

v.

Larry NORRIS, in his official capacity as Director, Arkansas Department of Correction; Gaylon Lay, in his official capacity as Warden, Arkansas Department of Correction, Cummins Unit; Wendy Kelly, in her official capacity as Deputy Director of Health and Correctional Programs, Arkansas Department of Correction; John Byus, in his official capacity as Administrator, Correctional Medical Services, Arkansas Department of Correction; Does, 1-50, unknown executioners, in their official capacities as employees and/or agents of the Arkansas Department of Correction, Appellants.

No. 06-2748.

United States Court of Appeals, Eighth Circuit.

July 9, 2007

Submitted: March 15, 2007.

Appeal from the United States District Court for the Eastern District of Arkansas.

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[Copyrighted Material Omitted]

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Counsel who presented argument on behalf of the appellant was Kelly K. Hill, AAG of Little Rock, AR. Joseph V. Svoboda, AAG and Mark Hagemeier, AAG of Little Rock appeared on the brief.

Counsel who presented argument on behalf of the appellee was Julie Brain of Little Rock, AR. Alvin Schay and Deborah of Little Rock appeared on the brief.

Before COLLOTON, HANSEN, and GRUENDER, Circuit Judges.

HANSEN, Circuit Judge.

The district court granted Don William Davis a preliminary injunction staying his execution to permit him to litigate the constitutionality of Arkansas's lethal injection protocol in a suit brought pursuant to 42 U.S.C.§ 1983. In this interlocutory appeal, see 28 U.S.C. § 1292(a)(1), the Appellants (collectively, "the State") contend that the district court abused its discretion in granting the preliminary injunction. 1 We agree, and accordingly we reverse the judgment of the district court, dissolve the preliminary injunction it imposed, and vacate the stay of execution it entered.

I.

In 1993, the Supreme Court of Arkansas affirmed Mr. Davis's conviction for capital murder and his sentence of death by lethal injection, Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993),

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cert. denied, 511 U.S. 1026, 114 S.Ct. 1417, 128 L.Ed.2d 88 (1994), and in 2001, affirmed the denial of his petition for postconviction relief, Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). In 2005, we affirmed the denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, see Davis v. Norris, 423 F.3d 868 (8th Cir.2005), and the Supreme Court rejected his untimely petition for certiorari on April 17, 2006.

On May 4, 2006, Mr. Davis filed a motion to intervene as a party plaintiff in this § 1983 action, which Terrick Nooner originally filed on May 1, 2006. The lawsuit challenges Arkansas's three-chemical lethal injection protocol, asserting that the State's protocol creates a significant risk of inflicting severe pain in the administration of the death sentence, and that the State's use of this protocol demonstrates deliberate indifference to the plaintiffs' serious medical needs. Specifically, the complaint alleges that the State's protocol presents a risk of error in administering the drugs that could result in inadequate anesthetization, creating a substantial risk that the first injection (two grams of sodium thiopental) will fail to render him unconscious, leaving him paralyzed by the second chemical (pancuronium bromide), and suffering severe pain by the subsequent administration of the third chemical (potassium chloride). Additionally, the complaint references four prior executions alleged to have been "botched."

The district court granted Mr. Davis's motion to intervene on May 26, 2006. Before that ruling was filed, however, the governor had set an execution date of July 5, 2006, for Mr. Davis. Mr. Davis then sought a preliminary injunction to stay his impending execution by means of the current protocol. The State resisted, arguing that the claim was not likely to succeed on the merits and that the public interest and principles of equity, including unjustified delay in bringing the claim, weighed heavily against the grant of an injunction. The district court rejected these arguments and granted the preliminary injunction on June 26, 2006, staying Mr. Davis's execution. The State filed this appeal.2

II.

"We generally review a district court's decision to stay execution for an abuse of discretion." Roberts v. Norris, 415 F.3d 816, 819 (8th Cir. 2005) (citing Bowersox v. Williams, 517 U.S. 345, 346, 116 S.Ct. 1312, 134 L.Ed.2d 494 (1996)). "A district court abuses its discretion when it applies an incorrect legal...

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