Fierro v. Gomez

• Decision Date: 21 February 1996
• Docket Number: No. 94-16775,94-16775
• Citation: 77 F.3d 301
• Parties: , 96 Cal. Daily Op. Serv. 1280, 96 Daily Journal D.A.R. 1987 David FIERRO; Alejandro Gilbert Ruiz; and Robert Alton Harris, as individuals and on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. James GOMEZ, as an individual and in his capacity as Director, California Department of Corrections; and Arthur Calderon, as an individual, and in his capacity as Warden of San Quentin Prison, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 301

77 F.3d 301

64 USLW 2548, 96 Cal. Daily Op. Serv. 1280,

96 Daily Journal D.A.R. 1987

David FIERRO; Alejandro Gilbert Ruiz; and Robert Alton Harris, as individuals and on behalf of themselves and all others similarly situated Plaintiffs-Appellees, v. James GOMEZ, as an individual and in his capacity as Director, California Department of Corrections; and Arthur Calderon, as an individual, and in his capacity as Warden of San Quentin Prison, Defendants-Appellants.

No. 94-16775.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 5, 1995.

Decided Feb. 21, 1996.

Michael Laurence, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, California, and Warren E. George, McCutchen, Doyle, Brown & Enerson, San Francisco, California, for plaintiffs-appellees.

Dane R. Gillette, Deputy Attorney General, San Francisco, California, for defendants-appellants.

Constance de la Vega, San Francisco, CA, for Human Rights Advocates.

David Weissbrodt, Legal Counsel, Barbara Frey, Executive Director, Minneapolis, MN, for Minnesota Advocate for Human Rights.

Appeal from the United States District Court for the Northern District of California; Marilyn H. Patel, District Judge, Presiding.

Before: PREGERSON, BRUNETTI, and T.G. NELSON, Circuit Judges.

PREGERSON, Circuit Judge:

Plaintiffs, three California inmates sentenced to death, brought this action under 42 U.S.C. § 1983. The inmates alleged that California's method of execution, lethal gas, constitutes cruel and unusual punishment and thus violates the Eighth and Fourteenth Amendments of the federal Constitution. The United States District Court for the Northern District of California held that, to the extent that the statute provides for execution by lethal gas, it is cruel and unusual punishment. Defendants James Gomez, Director of the California Department of Corrections, and Arthur Calderon, Warden of San Quentin Prison, now appeal that decision. Defendants also appeal the district court's permanent injunction against the use of lethal gas as a method of execution. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

PRIOR PROCEEDINGS

On April 17, 1992, plaintiffs David Fierro, Alejandro Gilbert Ruiz, and Robert Alton Harris, California inmates sentenced to death, filed this suit on behalf of themselves and all others similarly situated. Fierro v. Gomez, 790 F.Supp. 966 (N.D.Cal.1992) ("Fierro I "). Harris was scheduled to be executed in California's gas chamber on April 21, 1992, four days later. The inmates sought relief under 42 U.S.C. § 1983, alleging that California's method of execution statute, Cal.Penal Code § 3604, violates the Eighth and Fourteenth Amendments to the United States Constitution. Defendants opposed the suit, alleging that the district court did not have jurisdiction under § 1983. Defendants argued that a challenge to the method by which an inmate will be executed must be brought as a petition for writ of habeas corpus rather than as a § 1983 civil rights action. Fierro I, 790 F.Supp. at 968. The district court held that it had jurisdiction under § 1983 because plaintiffs were not challenging the fact or duration of their sentences and were therefore not required to bring their claims as habeas petitions. Id.

The district court granted plaintiffs' motion for a temporary restraining order ("TRO") enjoining defendants from executing any California death row inmate by means of lethal gas. Fierro I, 790 F.Supp. at 967. The court found that there existed serious questions going to the merits and that an evidentiary hearing was necessary. Id. at 970-71.

Defendants appealed to this court and we vacated the district court's TRO. Gomez v. United States Dist. Court, No. 92-70237, 1992 WL 155238, 1992 U.S.App. LEXIS 7031 (9th Cir. Apr. 20, 1992), vacated as moot and withdrawn, 966 F.2d 463 (9th Cir.1992). At least three stays were subsequently entered by this court and then vacated by the U.S. Supreme Court. See Gomez v. U.S. District Court for Northern District of California, No. 92-55426 (9th Cir., Apr. 20, 1992), vacated by Vasquez v. Harris, 503 U.S. 1000, 112 S.Ct. 1713, 118 L.Ed.2d 418 (1992) (No. A-766); Gomez v. United States Dist. Court, 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 Harris also filed a petition for writ of habeas corpus with the California Supreme Court on April 21, 1992. This petition challenged the constitutionality of execution by lethal gas under both the federal and California constitutions. The California Supreme Court, in an unpublished decision with one justice dissenting, denied the case "on the merits." In re Robert Alton Harris, No. S026235 (Cal.Sup.Ct.1992) (in bank). The court offered no new analysis for its conclusion, merely citing to its own previous decisions and those of other courts finding execution by lethal gas to be constitutional. ¹ Id. at 1. The court also emphasized the "last minute" nature of Harris's claim, id. at 1-2, as did the U.S. Supreme Court, Gomez v. United States Dist. Court, 503 U.S. at 654, 112 S.Ct. at 1653.

(1992) (No. A-767); Vasquez v. Harris, No. 92-70237 (9th Cir., Apr. 21, 1992), vacated by Vasquez v. Harris, 503 U.S. 1000, 112 S.Ct. 1713, 118 L.Ed.2d 419 (1992) (No. A-768).

Harris was executed in San Quentin's gas chamber shortly after 6:00 a.m. on April 21, 1992. Plaintiffs Fierro and Ruiz remain on California's death row.

When California executed Harris, the state's sole method of execution was the "administration of a lethal gas." Cal.Penal Code § 3604 (West 1982). Soon after Harris's execution, in response to this case, the California Legislature amended section 3604 by adding lethal injection as an alternative means of execution. Cal.Stats.1992, c. 558. The amended statute provides for execution by lethal gas unless an inmate affirmatively chooses lethal injection and "if either manner of execution ... is held invalid, the punishment of death shall be imposed by the alternative means." Cal.Penal Code § 3604 (West Supp.1995).

In October and November 1993, the district court held an eight-day bench trial on the original § 1983 action. Fierro v. Gomez, 865 F.Supp. 1387, 1389 (N.D.Cal.1994) ("Fierro II "). Soon after the trial but before the district court issued its decision, an en banc panel of this court held constitutional the State of Washington's protocol for execution by hanging. Campbell v. Wood, 18 F.3d 662 (9th Cir.1994) (en banc), cert. denied, --- U.S. ----, 114 S.Ct. 2125, 128 L.Ed.2d 682 (1994). The district court then ordered the Fierro parties to file supplementary briefs addressing the impact of Campbell on the Fierro case. The district court published its decision in October 1994. Fierro II, 865 F.Supp. 1387.

In Fierro II, the district court found that "California Penal Code § 3604, to the extent that it requires or permits the imposition of death by administration of lethal gas, violates the eighth and fourteenth amendments of the United States Constitution." 865 F.Supp. at 1415. The court enjoined defendants from using lethal gas to execute either of the two remaining plaintiffs or any other California death row inmate. Id.

ANALYSIS

A. Section 1983.

1. Standard of Review.

The district court's conclusions of law are reviewed de novo. Price v. United States Navy, 39 F.3d 1011, 1021 (9th Cir.1994). We thus review de novo whether the district court was correct in concluding that a challenge to a method of execution may be brought as a § 1983 civil rights action.

2. Discussion.

Section 1983 provides the statutory authorization for most federal court suits against local governments or state and local government officials to redress violations of federal civil rights. To bring a § 1983 action, a plaintiff must allege (1) a violation of a right secured by the Constitution or federal law, and (2) that this right was violated by someone acting under color of state law. 42 U.S.C. § 1983; Fierro I, 790 F.Supp. at 967. Challenges to prison conditions ("conditions of confinement") are often brought as § 1983 actions. See, e.g., Rhodes v. Chapman, 452 U.S. 337, 340, 101 S.Ct. 2392, 2395-96, 69 L.Ed.2d 59 (1981) (allowing Eighth Amendment challenge to a prison's practice of "double celling" to be brought under § 1983); Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570-71, 57 L.Ed.2d 522 (1978) (allowing Eighth Amendment challenge to conditions of confinement to be brought under § 1983).

In contrast, an inmate must challenge the constitutionality of his conviction or sentence by means of a petition for writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973). The habeas statute provides that:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the grounds that he is in custody in violation of the constitution or laws or treaties of the United States.

28 U.S.C. § 2254. Habeas corpus's "traditional purpose" is to allow an inmate seeking "immediate or more speedy release" to challenge his confinement. Preiser, 411 U.S. at 494, 93 S.Ct. at 1838-39.

Here, the district court found that plaintiffs Fierro, Ruiz, and Harris could properly bring their claims under § 1983. ² Fierro I, 790 F.Supp. at 967. The court reasoned that plaintiffs sought "review of the method by which their sentence will be carried out" rather than review of the fact that they were sentenced to death. In addition, the court held that:

Since plaintiffs' claim does not, and could not, challenge the fact or duration of sentence, it need not be brought as a habeas claim. To hold otherwise would carve out of habeas and § 1983 law a separate jurisprudence for death penalty cases. There is no authority for such a dichotomy.

Id. at 968.

The court noted that several method of execution challenges have been brought...