Beaty v. Brewer

• Decision Date: 25 May 2011
• Docket Number: No. CIV 11–1037–PHX–NVW.,CIV 11–1037–PHX–NVW.
• Citation: 2011 Daily Journal D.A.R. 7728,791 F.Supp.2d 678
• Parties: Donald BEATY, Plaintiff,v.Janice K. BREWER, Governor of Arizona; Charles L. Ryan, Director, Arizona Department of Corrections; Ernest Trujillo, Warden, Arizona Department of Corrections—Eyman; Carson McWilliams, Warden, Arizona Department of Corrections—Florence; Does 1–50, Defendants.
• Court: U.S. District Court — District of Arizona

791 F.Supp.2d 678
2011 Daily Journal D.A.R. 7728

Donald BEATY, Plaintiff,
v.
Janice K. BREWER, Governor of Arizona; Charles L. Ryan, Director, Arizona Department of Corrections; Ernest Trujillo, Warden, Arizona Department of Corrections—Eyman; Carson McWilliams, Warden, Arizona Department of Corrections—Florence; Does 1–50, Defendants.

No. CIV 11–1037–PHX–NVW.

United States District Court, D. Arizona.

May 25, 2011.

[791 F.Supp.2d 679]

Allen Burton, Omelveny & Myers LLP, New York, NY, Dale A. Baich, Jon M. Sands, Robin C. Konrad, Federal Public Defenders Office, Phoenix, AZ, for Plaintiff.John Pressley Todd, Kent E. Cattani, Office of the Attorney General, Phoenix, AZ, for Defendants.ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION NEIL V. WAKE, District Judge.

This matter is before the Court for consideration of Plaintiff Donald Edward Beaty's emergency motion for a temporary restraining order or a preliminary injunction. (Doc. 1.) Plaintiff Beaty, an Arizona inmate under sentence of death, is scheduled to be executed today, May 25, 2011, at 10:00 a.m. Yesterday, May 24, 2011, at 9:05 p.m., he filed in this Court the instant motion.¹ Respondents filed a response at 1:45 a.m. this morning, and several hours later Plaintiff filed a reply as well as a complaint pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis. (Docs. 3–7.) The complaint alleges that the manner and means by which the Arizona Department of Corrections (ADC) intends to execute him will violate his Eighth Amendment right to be free

[791 F.Supp.2d 680]

from cruel and unusual punishment and his Fourteenth Amendment right to due process. The Court has considered the pleadings and Plaintiff's complaint. For the reasons that follow, the Court denies Plaintiff's motion for a temporary stay of execution.BACKGROUND

The facts underlying Plaintiff's 1985 conviction and death sentence for the murder of 13–year–old Christy Ann Fornoff are detailed in the Arizona Supreme Court's decision on direct appeal and will not be repeated here. See State v. Beaty, 158 Ariz. 232, 236, 762 P.2d 519, 524 (1988). Because Plaintiff committed his crime before November 23, 1992, under Arizona law he has the choice to be executed by either lethal injection or lethal gas. See A.R.S. § 13–757(B). According to his complaint, Plaintiff declined to choose. Consequently, ADC must use lethal injection to execute him. Id.

In 2007, Plaintiff and several other Arizona condemned inmates filed a § 1983 complaint challenging numerous aspects of Arizona's then-in-effect lethal injection protocol. That protocol—which requires sequential administration of sodium thiopental, pancuronium bromide, and potassium chloride for execution by lethal injection—was based on Department Order 710, titled “Preparation and Administration of Chemicals,” dated November 1, 2007, and as modified by an exhibit submitted by the parties as part of a joint report to the Court. See Dickens v. Brewer, No. CIV–07–1770–PHX–NVW, 2009 WL 1904294 at *1 & n. 2 (D.Ariz. Jul. 1, 2009) (unpublished order). On July 1, 2009, this Court granted summary judgment in favor of Defendants, concluding that Arizona's three-drug protocol was “substantially similar” to that approved by the Supreme Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), and thus did not subject inmates to a substantial risk of serious harm in violation of the Eighth Amendment. Id. On February 9, 2011, the Ninth Circuit Court of Appeals affirmed. Dickens v. Brewer, 631 F.3d 1139 (9th Cir.2011). The appellate court's mandate issued on April 18, 2011.

At approximately 4:00 p.m. on Tuesday, May 24, 2011, less than 24 hours before Plaintiff's scheduled execution, ADC filed in Plaintiff's case at the Arizona Supreme Court a “Notice of Substitution of Drug.” (Doc. 2, Ex. G.) The notice states that ADC intends to substitute pentobarbital for sodium thiopental in carrying out Plaintiff's execution but that Arizona's lethal injection protocol will otherwise remain the same as used in prior executions. ( Id. at 1.) The notice further states that Arizona's protocol authorizes ADC's Director to make such a change and that the drug was obtained domestically. ( Id.) Finally the notice, and a subsequently filed errata to the notice, indicates that on this same day (May 24), a United States Associate Deputy Attorney General contacted the Arizona Attorney General's Office requesting that the sodium thiopental ADC imported from a foreign source not be used in Plaintiff's May 25 execution because the Drug Enforcement Administration believes ADC failed to fill out one of the forms necessary for importation of the drug. ( Id. at 2; Doc. 2, Ex. H.)

DISCUSSION

In his § 1983 complaint, Plaintiff alleges that ADC's last-minute substitution of pentobarbital violates his right to be free from cruel and unusual punishment under the Eighth Amendment and his right to due process under the Fourteenth Amendment.

Plaintiff has moved for a temporary restraining order or a preliminary injunction to enjoin his execution and to

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allow for litigation of these claims. The standard for issuing a temporary restraining order is essentially the same as that for issuing a preliminary injunction. To be entitled to injunctive relief, a movant must demonstrate (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 376, 172 L.Ed.2d 249 (2008); National Meat Ass'n v. Brown, 599 F.3d 1093, 1097 (9th Cir.2010); see also Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir.2005). The burden of persuasion is on the movant, who must make “a clear showing.” Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam).

In the context of a capital case, the Supreme Court has emphasized that these principles apply when a condemned prisoner asks a federal court to enjoin his impending execution because “[f]iling an action that can proceed under § 1983 does not entitle the complainant to an order staying an execution as a matter of course.” Hill v. McDonough, 547 U.S. 573, 583–84, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). Rather, “a stay of execution is an equitable remedy” and “equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Id. at 584, 126 S.Ct. 2096. In addition, “[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” Beardslee, 395 F.3d at 1068 (quoting Gomez v. United States District Court, 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992)). Thus, courts “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.” Id. (quoting Nelson v. Campbell, 541 U.S. 637, 649–50, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004)).

I. Likelihood of Success

In his motion for injunctive relief, Plaintiff asserts that a last-minute drug substitution will make it impossible for ADC to comply with the training requirement of Arizona's lethal injection protocol. Without the “safeguard of training,” Plaintiff argues his right to be free from cruel and unusual punishment under the Eighth Amendment will be violated because there is a substantial risk the anesthetic drug will not be properly administered. Plaintiff further asserts he has a right to reasonable notice of changes to Arizona's lethal injection protocol so that he can review and attempt to challenge them. Here, according to Plaintiff, ADC's failure to timely notify him of the drug substitution violates his right to due process under the Fourteenth Amendment because he lacks sufficient time to review the protocol change, as well as his medical records, to determine whether there are any constitutional concerns with the new drug.

A. Alleged Eighth Amendment Violation

The Eighth Amendment “prohibits punishments that involve the unnecessary and wanton inflictions of pain, or that are inconsistent with evolving standards of decency that mark the progress of a maturing society.” Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th Cir.2004). That prohibition necessarily applies to the punishment of death, precluding executions that “involve torture or a lingering death, or do not accord with the dignity of man.” Beardslee, 395 F.3d at 1070. A violation of the Eighth Amendment can be established

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by demonstrating there is a risk of harm that is “ sure or very likely to cause serious illness and needless suffering.” Helling v. McKinney, 509 U.S. 25, 33, 34, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). In other words, there must be a “substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

In Baze v. Rees, the Supreme Court held that Kentucky's method of execution by lethal injection was consistent with the Eighth Amendment. The decision encompassed seven separate opinions involving three blocks of Justices. In Ventura v. State, 2 So.3d 194, 200 (Fla.2009), the Florida Supreme Court observed that the Baze plurality:

adopted a version of the substantial-risk standard, while Justice Breyer, concurring in the judgment, and Justices Ginsburg and Souter, dissenting, adopted a version of the unnecessary-risk standard. In contrast, Justices Thomas and Scalia renounced any risk-based standard in favor of a rule of law that would uphold any method of execution which does not involve the purposeful infliction of “pain and suffering beyond that necessary to cause death.” Justice Stevens did not provide a separate standard but, instead, expressed...