Warner v. Kevin J. Gross, Michael W. Roach, Steve Burrage, Gene Haynes, Frazier Henke, Linda K. Neal, Earnest D. Ware, Robert C. Patton, Anita K. Trammell, Edward Evans, Hunit Section Chief X

Decision Date12 January 2015
Docket NumberNo. 14–6244.,14–6244.
Citation776 F.3d 721
PartiesCharles F. WARNER, Benjamin R. Cole, by and through his next friend Robert S. Jackson, John M. Grant, and Richard E. Glossip, Plaintiffs–Appellants, James A. Coddington, Carlos Cuesta–Rodriguez, Nicholas A. Davis, Richard S. Fairchild, Wendell A. Grissom, Marlon D. Harmon, Raymond E. Johnson, Emmanuel A. Littlejohn, James D. Pavatt, Kendrick A. Simpson, Kevin R. Underwood, Brenda A. Andrew, Shelton D. Jackson, Phillip D. Hancock, Julius D. Jones, Alfred B. Mitchell, and Tremane Wood, Plaintiffs, v. Kevin J. GROSS, Michael W. Roach, Steve Burrage, Gene Haynes, Frazier Henke, Linda K. Neal, Earnest D. Ware, Robert C. Patton, Anita K. Trammell, Edward Evans, Hunit Section Chief X, and John Doe Executioners # 1–10, Defendants–Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Submitted on the briefs: Patti Palmer Ghezzi and Randy A. Bauman, Assistant Federal Public Defenders, Western District of Oklahoma, Oklahoma City, OH, and Mark Henricksen and Lanita Henricksen, Henricksen & Henricksen, Oklahoma City, OH, and Dale A. Baich and Robin C. Konrad, Assistant Federal Public Defenders, Phoenix, AZ, for PlaintiffsAppellants.

John D. Hadden, Jeb E. Joseph, and Aaron J. Stewart, Assistant Attorneys General, Oklahoma Attorney General's Office, Oklahoma City, OH, for DefendantsAppellees.

Before BRISCOE, Chief Judge, GORSUCH and MATHESON, Circuit Judges.

BRISCOE, Chief Judge.

Plaintiffs Charles Warner, Richard Glossip, John Grant, and Benjamin Cole, all Oklahoma state prisoners convicted of first degree murder and sentenced to death, were among a group of twenty-one Oklahoma death-row inmates who filed this 42 U.S.C. § 1983 lawsuit challenging the constitutionality of the State of Oklahoma's lethal injection protocol. Plaintiffs, facing imminent execution, sought a preliminary injunction to prevent their executions until the district court could rule on the merits of their claims. The district court denied their request. Plaintiffs now appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we agree with the district court that plaintiffs have failed to establish a likelihood of success on the merits of their claims. We therefore affirm the decision of the district court.1

IThe Plaintiffs

In August 1997, plaintiff Charles Warner anally raped and murdered the eleven-month-old daughter of his girlfriend. Warner was subsequently convicted by a jury of first degree rape and first degree murder. Warner v. State, 144 P.3d 838, 856 (Okla.Crim.App.2006). Warner was sentenced, in accordance with the jury's recommendation, to death for the murder conviction. Id.

In January 1997, plaintiff Richard Glossip, who at the time was working as the manager of an Oklahoma City motel, hired another motel employee, Justin Sneed, to kill the owner of the motel. Per Glossip's suggestion, Sneed carried out the murder by beating the owner to death with a baseball bat. Glossip was ultimately convicted by a jury of first degree malice murder and sentenced to death for that conviction. Glossip v. State, 157 P.3d 143, 147 (Okla.Crim.App.2007).

In November 1998, plaintiff John Grant, at the time a prisoner at the Conner Correction Center in Hominy, Oklahoma, murdered a food service supervisor by repeatedly stabbing her with a prison-made shank. Grant was convicted by a jury of first degree malice murder and sentenced to death. Grant v. State, 58 P.3d 783, 788 (Okla.Crim.App.2002).

In December 2002, plaintiff Benjamin Cole murdered his nine-month-old daughter by pushing her legs towards her head as she lay on her stomach crying. Cole's actions snapped his daughter's spine in half and resulted in a complete tear of her aorta. Cole was subsequently convicted by a jury of first degree murder and sentenced to death. Cole v. State, 164 P.3d 1089, 1092 (Okla.Crim.App.2007).

All four of the plaintiffs have exhausted their state and federal court remedies and the State of Oklahoma has established specific execution dates for each of them. Plaintiff Warner is scheduled to be executed on January 15, 2015. Plaintiff Glossip is scheduled to be executed on January 29, 2015. Plaintiff Grant is scheduled to be executed on February 19, 2015. Plaintiff Cole is scheduled to be executed on March 5, 2015.

The State's Lethal Injection Protocol

For many years, the State of Oklahoma utilized a three-drug lethal injection protocol comprised of sodium thiopental, pancuronium bromide, and potassium chloride. “The first drug, sodium thiopental ..., is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection.” Baze v. Rees, 553 U.S. 35, 44, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). “The second drug, pancuronium bromide ..., is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration.” 2Id. “Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Id.

Since approximately 2010, the State of Oklahoma has been unable to obtain sodium thiopental, either commercially manufactured or compounded, for use in executions. Although the State of Oklahoma was able, for a short time, to obtain and utilize an alternative barbiturate, pentobarbital, during executions, that drug has also become unavailable to the State of Oklahoma for use in its executions. See Pavatt v. Jones, 627 F.3d 1336, 1337 (10th Cir.2010) (addressing challenge to State of Oklahoma's planned use of pentobarbital).

In approximately early 2014, the State of Oklahoma decided to substitute midazolam hydrochloride (midazolam), a sedative in the benzodiazepine family of drugs, for sodium thiopental and pentobarbital. In other words, the State of Oklahoma intended for midazolam to be utilized, as the first drug in its lethal injection protocol, to render an inmate unconscious prior to the injection of the second and third drugs.

The Clayton Lockett Execution

On April 29, 2014, inmate Clayton Lockett was the first Oklahoma state prisoner to be executed using midazolam as part of the lethal injection execution protocol. As described at length in the district court's oral ruling, Lockett's execution, though ultimately successful, was a procedural disaster. The execution team, over the course of nearly an hour, made at least twelve attempts to establish intravenous (IV) access to Lockett's cardiovascular system. The team ultimately believed, incorrectly, that it had successfully established IV access through Lockett's right femoral vein. And the team compounded this error by placing a hemostat on the IV line and covering the IV injection access point with a sheet.

The execution team proceeded to inject Lockett with the three-drug protocol. In doing so, the team declared Lockett to be unconscious following the injection of the midazolam and prior to the injection of the vecuronium bromide and the potassium chloride. Shortly after the injection of part, but not all, of the potassium chloride, however, Lockett began to move and speak. In particular, witnesses heard Lockett say: “This shit is fucking with my mind,” “something is wrong,” and “The drugs aren't working.” ROA, Vol. 3 at 865.

The execution team lifted the sheet and observed a large area of swelling, smaller than a tennis ball but larger than a golf ball, near the IV access point. The execution team determined that the IV had infiltrated, meaning that the IV fluid, rather than entering Lockett's blood stream, had leaked into the tissue surrounding the IV access point. The team stopped administration of the remaining potassium chloride and attempted, unsuccessfully, to insert the IV into Lockett's left femoral vein.

The execution team, after concluding that Lockett had no viable veins left in which to obtain IV access, terminated the execution process approximately 33 minutes after the midazolam was first injected into Lockett. Approximately ten minutes later, Lockett was pronounced dead, even though the execution team had not injected the intended amount of potassium chloride into Lockett.

A subsequent autopsy determined that there was a concentration of midazolam in the tissue near the IV insertion site in Lockett's right groin area. The autopsy also determined, however, that certain amounts of all three drugs had been distributed throughout Lockett's body, and that the concentration of midazolam in Lockett's blood was greater than the concentration required to render an average person unconscious.

Oklahoma's Revised Execution Procedures

After conducting an investigation into Lockett's execution, the State of Oklahoma adopted a new execution protocol, effective September 30, 2014. As the district court found, the new protocol “is noticeably more detailed” in terms of the “procedures for establishing IV access to the offender's cardiovascular system, the procedure for administering the chemicals, and the procedures for dealing with mishaps or unexpected contingencies.” Id. at 870. In particular, [t]he new protocol provides for the insertion of a primary IV catheter and a backup IV catheter,” id. at 875, and allows for an execution to be postponed if viable IV sites cannot be established within an hour's time, id. at 876. The new protocol “also includes detailed provisions with respect to training and pre-execution preparation of the members of the execution team.” Id. at 870.

The new protocol gives the Director of Oklahoma's Department of Corrections (DOC) “four alternatives with respect to the combination of drugs to be used in the lethal injection process.” Id. at 874. The first alternative “calls for the administration of 5,000 milligrams of pentobarbital in a one-drug procedure.” Id. The second alternative “provides for the administration of 5,000 milligrams of sodium pentothal ... in a one-drug procedure.” Id. The third alternative “provides for the administration of 500...

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