Nooner v. Norris

• Citation: 491 F.3d 804
• Decision Date: 09 July 2007
• Docket Number: No. 06-2748.,06-2748.
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

491 F.3d 804

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.

Submitted: March 15, 2007.

Filed: July 9, 2007.

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), 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 standard." Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir.2003). After carefully considering the record and the standards used by the district court, we conclude that the district court abused its discretion in granting the preliminary injunction and stay of execution. See Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 967 (8th Cir.2005) ("An abuse of discretion occurs when the district court bases its decision on an erroneous application of the law or a clearly erroneous finding of fact.").

A stay of execution is an equitable remedy, and an inmate challenging a state's lethal injection protocol through a § 1983 action is not entitled to a stay of execution as a matter of course. Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 2104, 165 L.Ed.2d 44 (2006); Nelson v. Campbell, 541 U.S. 637, 649, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). The Supreme Court reemphasized in Hill that "inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." 126 S.Ct. at 2104; see also Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (requiring a "significant possibility" of success and "a likelihood that irreparable harm will result" absent a stay). The Court also noted in Hill that "equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts." 126 S.Ct. at 2104. Finally, in this context, a court "must also apply `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.'" Id. (quoting Nelson, 541 U.S. at 650, 124 S.Ct. 2117). In other words, "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," which counsels against the entry of an equitable remedy. Nelson, 541 U.S. at 649-50, 124 S.Ct. 2117.

The district court rejected the State's assertion of unnecessary delay, finding no delay at all and therefore not applying the presumption against the grant of a stay, which arises when the claim could have been brought in time to consider the merits without requiring a stay. The district court found it was sufficient that Mr. Davis had moved to join this suit "before the State set his execution date and shortly after he exhausted all means for challenging his conviction." (Appellants' Add. at 5.) We conclude that this is not the correct standard for determining delay in this context.

Once a state inmate's sentence of death has become final on direct review in the state's courts,³ there is no impediment to filing a § 1983 action challenging the constitutionality of a state's lethal injection protocol as long as lethal injection is the established method of execution, the protocol is known, and no state administrative remedies are available. See Gomez v. U.S. Dist. Court for the N. Dist. of Calif., 503 U.S. 653, 653-54, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (criticizing an inmate for bringing a § 1983 method of execution claim (challenging lethal gas) shortly before his execution date when the claim was not raised earlier but "could have been brought more than a decade ago"); see also Jones v. Allen, 485 F.3d 635, 640 (11th Cir.) (finding that there was no reason for waiting until 2006 to challenge lethal injection where the inmate's conviction became final on direct review in 1988, and the legislature adopted lethal injection in 2002 while the inmate's habeas petition was pending), cert. denied, ___ U.S. ___, 127 S.Ct. 2160, 167 L.Ed.2d 887 (2007); Cooey v. Strickland, 479 F.3d 412, 421-22 (6th Cir.2007) (finding that because a § 1983 challenge to a lethal injection protocol must accrue at some point before the time when the lethal injection protocol is actually imposed, "it stands to reason that the next most appropriate accrual date [is] upon conclusion of direct review in the state court or the expiration of time for seeking such review," and noting that the accrual date must be adjusted if lethal injection was not adopted until some later date); Smith v. Johnson, 440 F.3d 262, 263 (5th Cir.2006) (noting the Fifth Circuit holds that a method of execution challenge "`may be filed any time after the plaintiff's conviction has become final on direct review'") (quoting Neville v. Johnson, 440 F.3d 221 (5th Cir.2006)). But see Nelson, 541 U.S. at 650, 124 S.Ct. 2117 (noting that other limitations may apply to an inmate's ability to bring a § 1983 claim, such as limitations imposed by the Prison Litigation Reform Act of 1995, "requir[ing] that inmates exhaust available state administrative remedies before bringing a § 1983 action challenging the conditions of their confinement"). For purposes of this case, the State acknowledged during oral argument that an Arkansas inmate can challenge the lethal injection protocol immediately after direct review.

"[A] death sentence cannot begin to be carried out by the State while substantial legal issues [concerning the conviction or sentence] remain outstanding." Barefoot, 463 U.S. at 888, 103 S.Ct. 3383. Upon completion of collateral review, however, the State is free to set an execution date, and there is a strong...