Chavez v. Warden

• Decision Date: 12 February 2014
• Docket Number: No. 14–10561,Non–Argument Calendar.,14–10561,n–Argument Calendar.
• Citation: 742 F.3d 1267
• Parties: Juan Carlos CHAVEZ, Plaintiff–Appellant, v. FLORIDA SP WARDEN, Secretary, Florida Department of Corrections, John Does, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

742 F.3d 1267

Juan Carlos CHAVEZ, Plaintiff–Appellant,

v.FLORIDA SP WARDEN, Secretary, Florida Department of Corrections, John Does, Defendants–Appellees.

No. 14–10561

Non–Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Feb. 12, 2014.

Andrea Marie Norgard, Robert Anthony Norgard, Norgard & Norgard, Bartow, FL, Sonya Rudenstine, Attorney at Law, Gainesville, FL, Michael Robert Ufferman, Michael Ufferman Law Firm, PA, Tallahassee, FL, for Plaintiff–Appellant.

Scott A. Browne, Attorney General's Office, Tampa, FL, for Defendants–Appellees.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:14–cv–00110–BJD–JBT.

Before CARNES, Chief Judge, WILSON and MARTIN, Circuit Judges.

CARNES, Chief Judge:

Juan Carlos Chavez kidnapped a nine-year-old boy at gunpoint, anally raped him, verbally taunted and terrorized him, shot him to death, dismembered his body, discarded his body parts in three planters, and then filled those planters with concrete. See Chavez v. State, 832 So.2d 730, 738–41 (Fla.2002). Facing imminent execution, Chavez has filed a lawsuit claiming that he may experience unnecessary pain when the State of Florida executes him by lethal injection. After conducting an evidentiary hearing, the district court denied Chavez's request for a temporary restraining order, preliminary injunction, or stay of execution. This is his appeal.¹

I. BACKGROUND

On January 2, 2013, Florida Governor Rick Scott signed Chavez's death warrant and his execution was set for 6:00 p.m. on February 12, 2014. After the death warrant was signed, Chavez filed a 42 U.S.C. § 1983 lawsuit in district court challenging the constitutionality of Florida's recently revised lethal injection protocol, which substituted midazolam hydrochloride, a sedative in the benzodiazepine family of drugs, for pentobarbital, a barbiturate, as the first drug in the three-drug protocol.

Florida's revised lethal injection protocol, adopted on September 9, 2013 (2013 Protocol), calls for the sequential intravenous administration of three drugs: (1) 500 milligrams of midazolam hydrochloride, which is meant to serve as an anesthetic; (2) 100 milligrams of vecuronium bromide, a neuromuscular blocking agent that paralyzes voluntary muscles, including the diaphragm, and stops respiration; and (3) 240 milliequivalents of potassium chloride, a naturally occurring salt that induces cardiac arrest by interfering with the heart's electrical activity. Chavez also filed a motion for a temporary restraining order, preliminary injunction, or stay of execution (omnibus motion).

Although Chavez's amended § 1983 complaint raised a number of claims for relief from his impending execution, only one of those claims merits extended discussion.² Chavez's principal claim is that the use of midazolam hydrochloride in the 2013 Protocol violates the Eighth Amendment's ban on cruel and unusual punishment because it creates a substantial risk of serious harm. In both his amended complaint and omnibus motion, Chavez alleged that when used by itself midazolam is not effective in inducing “a surgical plane of anesthesia,” which is a state of complete unconsciousness and insensitivity to pain or other “noxious stimuli” that would prevent a condemned inmate from experiencing the asphyxiation and searing pain caused by the remaining two drugs in the lethal injection protocol.

Relying on the declaration of his retained expert, anesthesiologist Dr. David Lubarsky, Chavez asserted that midazolam is not typically used in clinical settings, nor FDA-approved for use, as a standalone anesthetic in major surgical procedures because it has no analgesic (pain-relieving) properties; that it can trigger “paradoxical reactions” which would prevent its sedative properties from taking effect, particularly in those, like himself, who suffer from extreme anxiety or certain other mental disorders; that there is no scientific evidence that 500 milligrams of midazolam would produce a state of complete unconsciousness; and that the 2013 Protocol is not properly suited to addressing these concerns because it does not require the assistance of trained medical personnel and its mandated consciousness check does not adequately ensure that an inmate is unconscious before the final two drugs in the protocol are administered.

Chavez also pointed to published news reports of three recent executions—the Florida executions of William Happ and Askari Abdullah Muhammad, and the Ohio execution of Dennis McGuire—each of which is said to have involved varying degrees of movement after the administration of midazolam. Chavez took these reported movements—a momentary head movement in case of Happ, the opening of an eye in the case of Muhammad, and McGuire appearing to gasp for air—as indicating that midazolam is not effective in rendering an inmate unconscious and insensate to pain. As a proffered alternative to the use of midazolam, Chavez advocated the use of a barbiturate, either in combination with other drugs or in a single fatal dose, as a more humane method of execution that “would significantly reduce the substantial risk of excruciating pain” allegedly created by the 2013 Protocol. But the only specific barbiturates named anywhere in his amended complaint or omnibus motion were pentobarbital and sodium thiopental, both of which Florida had previously used as the first drug in its lethal injection protocol. Florida initially used sodium thiopental, but as Chavez explained in an appendix to his amended complaint, “international pressure against the death penalty [ ] resulted in a shortage of sodium thiopental” that forced states with capital punishment “to scramble for an alternative drug.” Florida then selected pentobarbital, but as Chavez conceded in his amended complaint, pentobarbital is no longer available and the “2013 Protocol was created in response to [its] unavailability.”

After an evidentiary hearing marked by sharply conflicting testimony from Chavez's expert, Dr. Lubarsky, and the State's expert, Dr. Roswell Lee Evans, the district court denied Chavez's omnibus motion for a temporary restraining order, preliminary injunction, or stay of execution because he had not shown a substantial likelihood of success on the merits of his claims, both on the merits themselves and as to the statute of limitations defense the State had asserted. The court rejected Dr. Lubarsky's testimony as “essentially speculative and insufficient to meet [Chavez's] burden,” and instead credited Dr. Evans' testimony that 500 milligrams of midazolam—forty times the dosage typically used in clinical settings—would not only induce a deep anesthetic state in which an inmate would be rendered insensate, unconscious, and incapable of feeling pain, but would ultimately result in respiratory arrest, cardiac arrest, and death. Doc. 50 at 22–25, 33, 35. Based on Dr. Evans' testimony, the court concluded that the “massive dose [of midazolam] required by the Florida protocol ... will render the individual insensate to noxious stimuli by placing the individual in an anesthetic state, unable to discern pain,” that its effects would be “quite similar to that of sodium thiopental or pentobarbital on consciousness,” and that it “would result in a cascade effect with the whole body rapidly starting to shut down” until an inmate's “ultimate[ ] death.” Id. at 25, 35.

The court, again crediting Dr. Evans' testimony, also rejected Chavez's contention that midazolam, in the massive dose stipulated in the 2013 Protocol, carries a substantial risk of paradoxical reactions, and his contention that the bodily movements reported in the executions of Happ, Muhammad, and McGuire demonstrated a significant likelihood of consciousness when midazolam is used in an execution protocol. Dr. Evans testified during the evidentiary hearing that the incidence of paradoxical reactions in normal therapeutic settings was “less than 1 percent,” and that a massive dose of midazolam would avoid any potential paradoxical reactions and directly render a person unconscious. The district court credited all of that testimony and discredited Dr. Lubarsky's contrary testimony. Dr. Evans also testified that body movement does not necessarily indicate consciousness. Crediting that testimony, the court found that “Happ's movement (and Muhammad's, if his eye opened) does not necessarily equate to pain or with consciousness,” that the two-drug protocol used in Ohio to execute McGuire was not “sufficiently similar to Florida's execution protocol” to call Florida's protocol into question, and that Chavez “may have only a 1 percent risk of a paradoxical reaction.” Doc. 50 at 25 n. 24, 26–27, 30. Because Chavez had failed to show that Florida's current lethal injection protocol creates a substantial risk of severe pain, the district court found that he could not successfully challenge the protocol “by contending that the one-drug protocol may be a better execution protocol for Florida to adopt.” Id. at 37.

Chavez timely appealed to us the district court's denial of his omnibus motion.³ We have jurisdiction under 28 U.S.C. § 1292(a)(1). He has also filed in this Court an application for a stay of execution.

II. DISCUSSION

A preliminary injunction is appropriate if the movant demonstrates all of these elements: (1) a substantial likelihood of success on the merits; (2) that the preliminary injunction is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm the preliminary injunction would cause the other litigant; and (4) that the preliminary injunction would not be averse to the public interest. Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034–35 (11th Cir.2001). We review a district court's denial of a motion for a preliminary injunction only for an abuse of discretion. See Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir.2011).

Capital punishment, including capital...