841 F.3d 1098 (10th Cir. 2016), 15-6134, Estate of Lockett v. Fallin

Docket Nº:15-6134
Citation:841 F.3d 1098
Opinion Judge:PHILLIPS, Circuit Judge.
Party Name:THE ESTATE OF CLAYTON LOCKETT, by and through its personal representative Gary Lockett, Plaintiff - Appellant, v. GOVERNOR MARY FALLIN, in her individual capacity; ROBERT C. PATTON, in his individual capacity; ANITA TRAMMELL, in her individual capacity; DOCTOR JOHN DOE, Defendants - Appellees. AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIE
Attorney:Alan Chen, University of Denver, Sturm College of Law, Denver, Colorado (David A. Lane and Amy Kapoor, Kilmer, Lane & Newman, LLP, Denver, Colorado, and Justin F. Marceau, University of Denver, Sturm College of Law, Denver, Colorado, with him on the briefs), for Plaintiff-Appellant. Aaron J. Stew...
Judge Panel:Before GORSUCH, PHILLIPS, and MORITZ, Circuit Judges. MORITZ, J., concurring. MORITZ, J., concurring.
Case Date:November 15, 2016
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

The Estate of Clayton Lockett, through its personal representative Gary Lockett, filed suit against the Governor of Oklahoma Mary Fallin; corrections officials, medical officials, EMTs and drug manufacturers, all in relation to the execution of Clayton Lockett. In 1999, Lockett kidnapped, assaulted, and killed nineteen-year-old Stephanie Neiman. Lockett shot Neiman with a shotgun and then had an accomplice bury her alive. ... (see full summary)

 
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Page 1098

841 F.3d 1098 (10th Cir. 2016)

THE ESTATE OF CLAYTON LOCKETT, by and through its personal representative Gary Lockett, Plaintiff - Appellant,

v.

GOVERNOR MARY FALLIN, in her individual capacity; ROBERT C. PATTON, in his individual capacity; ANITA TRAMMELL, in her individual capacity; DOCTOR JOHN DOE, Defendants - Appellees. AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA; DOCTORS FOR THE ETHICAL PRACTICE OF MEDICINE: DR. LUCAS RESTREPO, Clinical Assistant Professor of Neurology at the University of California, DR. STEVEN MILES, Professor of Medicine and Bioethics at the University of Minnesota Medical School in Minneapolis, DR. ROBERT L. COHEN, Clinical Assistant Professor of Medicine, NYU; Member, New York City Board of Correction, DR. JOHN P. MAY, Regional Medical Director of Florida Region for Wexford Health Sources, and Consultant on Correctional Healthcare to the U.S. Department of Justice, Civil Rights Division; DR. MARC STERN, Affiliate Assistant Professor, Health Services at the University of Washington, formerly the Health Services Director for the Washington State Department of Corrections; DR. SCOTT ALLEN, Professor of Medicine, Associate Dean of Academic Affairs, University of California Riverside School of Medicine; DR. JOSIAH D. RICH, Professor of Medicine and Epidemiology, Brown University and Director of the Center for Prisoner Health and Human Rights; DR. ROBERT GREIFINGER, Professor (Adjunct) of Health and Criminal Justice and Distinguished Research Fellow at John Jay College of Criminal Justice in New York City and correctional health care policy and quality management consultant; DR. COLEMAN PRATT, Chief Medical Officer, Health Center in Florida, former Medical Director for Prison Health Services; DR. DAVID NICHOLL, Consultant Neurologist at Sandwell and West Birmingham Hospital, UK; DR. JOHN HENNING SCHUMANN, Gussman Family Associate Professor of Medicine, University of Oklahoma-Tulsa, Amici Curiae

No. 15-6134

United States Court of Appeals, Tenth Circuit

November 15, 2016

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 5:14-CV-01119-HE).

Alan Chen, University of Denver, Sturm College of Law, Denver, Colorado (David A. Lane and Amy Kapoor, Kilmer, Lane & Newman, LLP, Denver, Colorado, and Justin F. Marceau, University of Denver, Sturm College of Law, Denver, Colorado, with him on the briefs), for Plaintiff-Appellant.

Aaron J. Stewart (Richard Mann, with him on the brief), Assistant Attorneys General, Oklahoma Attorney General's Office, Litigation Division, Oklahoma City, Oklahoma, for Mary Fallin, Robert Patton and Anita Trammell, Defendants-Appellees.

David W. Lee (Stephen L. Geries, with him on the brief), Collins Zorn & Wagner, P.C., Oklahoma City, Oklahoma, with him on the brief), for Doctor John Doe, Defendant-Appellee.

Ryan D. Kiesel, and Brady R. Henderson, American Civil Liberties Union of Oklahoma Foundation, Oklahoma City, Oklahoma, A. Katherine Toomey, Lewis Baach PLLC, Washington, D.C., filed Amici Curiae briefs.

Before GORSUCH, PHILLIPS, and MORITZ, Circuit Judges. MORITZ, J., concurring.

OPINION

PHILLIPS, Circuit Judge.

The Estate of Clayton Lockett, through its personal representative Gary Lockett, filed suit against Mary Fallin, Governor of Oklahoma, in her individual capacity; Robert Patton, Director of the Department of Corrections of Oklahoma, in his individual capacity; Anita Trammell, Warden of the Oklahoma State Penitentiary, in her individual capacity; Dr. Doe, in his official and individual capacities; John Doe EMT, in his individual capacity; three John Doe executioners, in their individual capacities; two John Doe drug manufacturers, in their individual and official capacities; and two John Doe compounding pharmacies,1 in their individual and official capacities. The Estate asserts several constitutional violations related to Lockett's execution. We affirm the district court's dismissal of the case.

I. Facts2

In 1999, Lockett kidnapped, assaulted, and killed nineteen-year-old Stephanie Neiman. Lockett shot young Ms. Neiman with a shotgun and then had an accomplice bury her alive. In 2000, a jury found Clayton Lockett guilty of 19 felonies arising from the same incident, including the murder, rape, forcible sodomy, kidnapping, and assault and battery of Ms. Neiman. The jury recommended that the court impose the death penalty on Lockett's murder conviction.

From 1990 to 2010, as detailed in Oklahoma's Field Memorandum, a manual setting execution procedures, Oklahoma used a common drug protocol previously administered in at least 93 Oklahoma executions. Under this protocol, Oklahoma administered three drugs--the first, sodium thiopental, to render the condemned inmate unconscious; the second, pancuronium bromide, to paralyze the inmate; and the third, potassium chloride, to induce cardiac arrest and stop the inmate's heart. In 2010, facing difficulty obtaining sodium thiopental, Oklahoma officials amended the Field Memorandum to substitute in its place pentobarbital.3

On March 21, 2014, Oklahoma officials again amended the Field Memorandum to allow a number of new alternate procedures for use in executions by lethal injection. As one of these new procedures, officials substituted midazolam as the first drug used in the protocol. Before Lockett's execution, Oklahoma had not used midazolam during an execution. Warden Trammell and Director Patton chose this new protocol. Neither of them had any independent medical training.

On April 1, 2014, Warden Trammell and Director Patton notified Lockett that he would be executed using midazolam, pancuronium bromide, and potassium chloride, with the first two drugs being manufactured by a compounding pharmacy.4 On April 4, 2014, they notified Lockett that the midazolam would not in fact be from a compounding pharmacy. On April 11, 2014, they notified Lockett that vecuronium bromide would be used instead of pancuronium bromide.

On April 14, 2014, Warden Trammell and Director Patton amended the Field Memorandum's execution procedures by increasing the concentration of midazolam from 50mg/100ml to 50mg/10ml, a tenfold increase. Thus, Warden Trammell and Director Patton did not notify Lockett of the final drug protocol until April 14, 2014 (15 days before his execution). On April 25, 2014, Oklahoma officials again amended the Field Memorandum, but the Amended Complaint does not specify what changed, simply noting that the change was made " with an addendum." Appellant's App. vol. 1 at 160. When Lockett was executed, the Field Memorandum did not require a backup IV line, a visible and uncovered IV line, or continuous observation of the IV insertion site. Nor did it require that backup dosages of the drugs be available or that the personnel involved in the execution have any specific level of training.

Ultimately, Lockett was executed under one of the Field Memorandum's newly amended protocols: 100mg of midazolam (to render Lockett unconscious),5 40mg of vecuronium bromide (to paralyze Lockett), and 200 milliequivalents of potassium chloride (to stop Lockett's heart). Until Lockett's execution, no State had ever used that protocol. Unless the dosage of midazolam renders the prisoner unconscious, the second and third drugs will cause immense pain. Vecuronium bromide will asphyxiate the prisoner, and potassium chloride will cause " burning and intense pain" until death follows cardiac arrest. Id. at 163-64.

On April 29, 2014, Oklahoma brought Lockett to the execution chamber, and Dr. Doe6 and the EMT ultimately selected a vein in his groin area as the injection site.7 To shield any view of Lockett's naked groin from witnesses in the execution chamber, someone placed a cloth over the injection site. After Dr. Doe and the EMT placed the IV, prison officials raised the curtain separating the viewing area from the execution chamber.

At 6:23 p.m., the executioners administered the first drug, midazolam. At 6:33 p.m., Lockett was declared unconscious. After this, the executioners administered the second drug (vecuronium bromide) and the third drug (potassium chloride). Unexpectedly, at 6:36 p.m., Lockett began " twitching and convulsing" on the table. Id. at 152. At 6:37 p.m., he tried to rise from the table but was able only to raise his head and say, " Oh, man," and " I'm not . . . ." Id. According to some observers, Lockett also said, " something's wrong." Id. Soon afterward, Lockett " began to buck and writhe, as if he was trying to raise himself from the gurney[,] . . . [and he] next tried to raise his head and shoulders away from th[e] gurney [while] clench[ing] his teeth and grimac[ing] in pain." Id. at 160.

In response, Dr. Doe examined the IV site and saw that the injection vein had collapsed, preventing some of the drugs from reaching Lockett's circulatory system. Responding to a question from Director Patton, Dr. Doe advised him that he believed insufficient drugs...

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