Lambert v. Buss

Citation498 F.3d 446
Decision Date14 June 2007
Docket NumberNo. 07-2378.,07-2378.
PartiesMichael Allen LAMBERT, Intervenor Plaintiff-Appellant, v. Ed BUSS, Superintendent, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Brent Westerfeld (submitted), Indianapolis, IN, for Plaintiff.

Thomas D. Quigley, Office of the Attorney General, Indianapolis, IN, for Defendant-Appellee.

Alan M. Freedman, Midwest Center for Justice, Evanston, IL, for Intervenor-Appellant.

Before RIPPLE, KANNE, and EVANS, Circuit Judges.

PER CURIAM.

Michael Lambert, who is scheduled to be executed by the State of Indiana before sunrise on June 15, 2007, is here for the fourth time. His three prior visits involved challenges to the death sentence he received growing out of the murder of a Muncie, Indiana, police officer in 1990. Just two days ago, on June 12, we denied Mr. Lambert's motion to recall the mandates in his first two appeals.

While challenges to his conviction and sentence have been going on for over 16 years, Lambert also intervened (on March 1, 2007) in a civil suit filed by another Indiana capital defendant, Norman Timberlake. David Woods, another Indiana capital defendant, was also an intervenor in the Timberlake civil suit.

The Timberlake suit involved a challenge to the constitutionality of the means by which Indiana carries out death sentences. Under a statute enacted in 1995, Indiana requires that execution be carried out by lethal injection. The first execution under the 1995 law occurred on July 18, 1996. The fifteenth execution under the law, that of Mr. Woods, occurred on May 5, 2007.

Mr. Woods moved for a preliminary injunction and a stay of execution in the Timberlake case, and those motions were denied, after a hearing, by District Judge Richard L. Young. We denied Woods's appeal from Judge Young's order on May 3, 2007. Woods v. Buss, 496 F.3d 620 (7th Cir.2007).

On June 6, 2007, Mr. Lambert filed a request for a preliminary injunction in the Timberlake case. Judge Young notified the parties that he would consider the evidence presented during Woods's preliminary injunction hearing when ruling on Lambert's motion. Lambert did not object. On June 12, Judge Young, in a thorough and thoughtful decision, denied Lambert's motion for a preliminary injunction. Lambert now seeks a stay of execution pending his appeal from Judge Young's order.

The lethal injection procedure to be used on Lambert, called Operational Directive ISP 06-26, requires the introduction by intravenous catheter of 5 grams of sodium pentothal (an anesthetic to render the prisoner unconscious), followed by 50 mg of sterile saline, followed by 100 mg of pancuronium bromide (a paralytic agent), followed by 50 mg of sterile saline, followed by 200 mEq of potassium chloride. The final drug stops the heart. This protocol is the same one used by Indiana to execute Mr. Woods last month.

Judge Young concluded that Mr. Lambert could not satisfy the stringent requirements for obtaining a preliminary injunction. Lambert, among other things, could not, said the judge, establish the requirement that he demonstrate a likelihood of success on the merits. We agree and adopt Judge Young's decision as our own. And with that, Lambert's motion for a stay of execution must be DENIED.

SO ORDERED.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

NORMAN TIMBERLAKE, Plaintiff,

MICHAEL ALLEN LAMBERT, Intervenor Plaintiff,

vs.

ED BUSS, Superintendent, Indiana State Prison, Defendant.

No. 1:06-cv-1859-RLY-WTL

June 12, 2007.

Entry Discussing Michael Lambert's Motion for Preliminary Injunction

RICHARD L. YOUNG, United States District Judge.

Michael Lambert ("Lambert") is on Indiana's death row because of his 1990 murder of a Muncie police officer. Indiana law prescribes that executions shall be carried out by lethal injection. IND.CODE § 35-38-6-1(a). Lambert's execution is fset for June 15, 2007, only three days hence. He has joined Norman Timberlake, also on death row, in challenging the existing lethal injection protocol of the Indiana Department of Correction ("DOC"). David Leon Woods ("Woods"), recently executed pursuant to the challenged protocol, had also joined in the challenge, and the court is now presented with a sequel, perhaps sooner than the parties anticipated, to the motion for preliminary injunction of intervenor plaintiff Woods. As used herein, "defendant" or "Superintendent" refers to Indiana State Prison Superintendent Ed Buss. Through its Entry of June 8, 2007, the court notified the parties that in resolving Lambert's motion for preliminary injunction the court would consider, and the parties could do likewise, the evidence and argument presented in conjunction with the motion for preliminary injunction filed by Woods. This Entry constitutes the court's findings of fact and conclusions of law as to Lambert's motion. Fed.R.Civ.P. 52(a).

For the reasons explained in this Entry, Lambert's motion for preliminary injunction must be denied.

Background

The action was filed by Timberlake on December 29, 2006. Lambert sought leave to intervene through a motion filed on March 1, 2007. This motion, along with a similar motion filed by Woods, was granted on April 10, 2007. Woods and Lambert then filed their respective statement of claims on April 17, 2007. This was followed, in Woods' case, with the filing of his application for a preliminary injunction on April 18, 2007. Proceedings were conducted on Woods' application for a preliminary injunction. This included an evidentiary hearing, conducted on April 26, 2007. All parties were present by counsel, and the Superintendent was present in person as well as at the hearing, although only Woods and the Superintendent participated in the hearing.1 Woods' application for a preliminary injunction was denied. Timberlake v. Buss, 2007 WL 1280659 (S.D.Ind. May 1, 2007)(Woods I). That denial was affirmed on appeal in Woods v. Buss, 496 F.3d 620 (7th Cir.2007)(Woods II). He was executed on May 4, 2007, and Woods was dismissed as a party in this case on June 8, 2007, because the action as to him had become moot.

On May 18, 2007, this action was set for trial on September 22, 2007. Three days later, the Indiana Supreme Court set a June 15, 2007, date for Lambert's execution. Lambert's motion for preliminary injunction was filed on June 6, 2007, and has been fully briefed since June 8, 2007. He also sought to recall the mandates issued in his federal habeas challenges. That effort was rejected in Lambert v. Buss, 489 F.3d 779 (7th Cir.2007).

Lambert's claim is that under Indiana's execution protocol: (1) no physician, nurse or pharmacist is required to mix the lethal chemicals and that unqualified prison staff do this without supervision by appropriate medical personnel; (2) the physician's only duty is to pronounce death and to perform a cut-down procedure if necessary; (3) unqualified prison staff insert the IV lines and the protocol requires the performance of a cut-down procedure if a peripheral line cannot be inserted; (4) no medical equipment is attached to monitor the offender during the execution process; (5) no medical personnel are required to supervise the injection of the lethal contents; and (6) no medical personnel are required to physically examine the offender using standard clinical techniques to confirm that he is unconscious following injection of the first drug. Lambert claims that these steps will likely cause him to suffer excruciating pain when the second or third drug is administered. These circumstances, according to Lambert, violate his rights under the Eighth Amendment to the United States Constitution. The relief Lambert seeks in joining this action is an injunction prohibiting the Superintendent from executing Lambert by the proposed means of lethal injection.

Superintendent Buss has answered Lambert's claim and has responded to the motion for preliminary injunction.

Details of the execution are left to the DOC to implement. IND.CODE § 35-38-6-1(d). The protocol which will be used in the impending execution is established in Operation Directive ISP 06-26 (March 6, 2007) (hereafter "Directive 06-26") and in select Indiana statutes. Superintendent Buss was principally responsible for the composition of Directive 06-26, though he consulted various sources in doing so.

There are three chemical stages to the lethal injection procedure. See Cooey v. Strickland, 479 F.3d 412, 414 (6th Cir. 2007). "The sodium thiopental is designed to anesthetize the prisoner and render him unconscious. Next, the pancuronium bromide paralyzes all of the prisoner's voluntary muscles but does not affect his sensation, consciousness, or ability to feel pain. Finally, the potassium chloride induces cardiac arrest."

Directive 06-26 is to be implemented through a series of procedures set forth in the Directive itself. As might be expected, the successful implementation of Directive 06-26 depends on several individuals with distinct responsibilities. Those individuals are sufficiently trained and experienced, and the procedures to guide them in carrying out their responsibilities are sufficiently detailed, so as to not create a significant and unnecessary risk that Lambert will suffer unnecessary pain during the execution process. Directive 06-26 itself and the Superintendent's approach to this task show that the planning and preparation for Lambert's execution have been undertaken with great care. By way of illustration:

• The mixture and injection of the chemicals is carefully arranged by members of the IV team. The chemicals are mixed approximately 40 minutes before they are to be used. All members of the IV team, and some members of the injection team, have now been trained in IV therapy and are now certified to start, maintain and sustain intravenous lines. The injection site is monitored, as is the tubing. A physician is in the immediate vicinity of the...

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