Cook v. Brewer
| Decision Date | 28 March 2011 |
| Docket Number | No. CV 11-557-PHX-RCB,CV 11-557-PHX-RCB |
| Parties | Daniel Wayne Cook, Plaintiff, v. Janice K. Brewer, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
OPINION TEXT STARTS HERE
Death Penalty Case
Plaintiff Daniel Wayne Cook, who is an Arizona prisoner under sentence of death, is scheduled to be executed at 10:00 a.m. on April 5, 2011. He has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. Because the Complaint fails to state a claim upon which relief may be granted, the Court will dismiss the action.
Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $14.86. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to reliefthat is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.
In his two-count Complaint, Plaintiff sues the following Defendants: Arizona Governor Janice K. Brewer, Arizona Department of Corrections (ADC) Director Charles L. Ryan, Eyman Unit Warden Ernest Trujillo, Florence Unit Warden Carson McWilliams, and Does 1-50. In Count One, Plaintiff alleges that the State's use of a non-FDA-regulated substance (sodium thiopental) manufactured in a foreign country creates a substantial and unnecessary risk of serious harm in violation of his rights under the Eighth Amendment. In Count Two, Plaintiff alleges that the administration of a non-FDA-regulated substance from a foreign source by a medical doctor or other trained medical professional demonstrates deliberate indifference to his right to be free from cruel and unusual punishment under the Eighth Amendment. In his Prayer for Relief, Plaintiff seeks a declaratory judgment and temporary, preliminary, and permanent injunctive relief.1 The Court has reviewed the Complaint. For the reasons that follow, the Court concludes that Plaintiff has failed to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1).
In 1988, Plaintiff was convicted and sentenced to death on two counts of first-degree murder in the brutal deaths of two acquaintances. The facts surrounding the crimes are set forth in the Arizona Supreme Court's decision affirming the convictions and sentences on appeal. See State v. Cook, 170 Ariz. 40, 45-46, 821 P.2d 731, 736-37 (1991). Subsequent petitions for state post-conviction and federal habeas corpus relief were denied.
Because Plaintiff committed his crimes before November 23, 1992, he has the choice to be executed by either lethal injection or lethal gas. See Ariz. Rev. Stat. § 13-757(B). If he does not choose a method of execution, ADC must use lethal injection to execute him.
Id. Similar to other states, Arizona's protocol for execution by lethal injection requires sequential administration of sodium thiopental, pancuronium bromide, and potassium chloride. "It is uncontested that, failing a proper dose of sodium thiopental that would render [a] prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride." Baze v. Rees, 553 U.S. 35, 53 (2008).
On September 24, 2010, the State of Arizona filed in the Arizona Supreme Court a motion for a warrant of execution for Plaintiff. On November 10, 2010, Plaintiff filed a § 1983 complaint which raised the same two claims he has presented in the instant complaint. On January 26, 2011, the Court dismissed the complaint for failure to state a claim upon which relief could be granted. On February 8, the Arizona Supreme Court set Plaintiff's execution for April 5, 2011. On March 16, the Ninth Circuit Court of Appeals affirmed this Court's order dismissing Plaintiff's complaint. Cook v. Brewer, No. 11-15303, 2011 WL 902111 (9th Cir. Mar. 16, 2011). The instant Complaint was filed on March 24.
Plaintiff alleges that ADC intends to execute him using sodium thiopental acquired from a non-FDA-regulated company in Great Britain and that the drug is not fully potent because British Pharmacopeia defines sodium thiopental for injection to be a mixture containing the equivalent of not less than 84% and not more than 87% of thiopental where as United States Pharmacopeia defines sodium thiopental for injection to contain not less than 93% and not more than 107%. Consequently, according to Plaintiff, ADC will fail to properly anesthesize him because its lethal injection protocol is based on drugs produced in the United States.
Plaintiff next alleges that unapproved foreign drugs are presumptively unsafe and ineffective because FDA regulation ensures that a product is free of potentially harmful contaminants and that the product actually contains the amount and concentration of the drug indicated on the label. He further alleges that ADC obtained its supply of sodium thiopental in violation of federal law and that its supplier, Dream Pharma, did not conform with FDA's regulations or take "the necessary steps" to preserve the sodium thiopental. Plaintiff also alleges that ADC's sodium thiopental was produced in Austria by a German company called Sandoz International GmbH and that the FDA in the past criticized Sandoz's failure to distinguish between animal drugs and those intended for human consumption and voiced concerns that Sandoz's manufacturing plant failed to develop written procedures and an environmental monitoring system to prevent contamination.
Plaintiff further alleges that the sodium thiopental ADC purchased from Dream Pharma is ineffective, adulterated, or otherwise substandard because the Medicines and Healthcare Regulatory Agency in the United Kingdom reported that there have been twelve "adverse reaction reports" concerning sodium thiopental in the past two years and that five of these related to the drug's efficacy. He also asserts that the drugs imported by ADC were formulated for animals, not humans.
Based on these factual allegations, Plaintiff asserts there is a substantial risk injection of ADC's sodium thiopental could cause pain and suffering because it is contaminated, compromised, or substandard. He further alleges there is a substantial risk he will experience excruciating pain from administration of the second and third drugs during his execution because sodium thiopental obtained from a non-FDA-regulated foreign source will not properly anesthesize him.
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 v. Woodford, 395 F.3d 1064, 1070 (9th Cir. 2005). A violation of the Eighth Amendment can be established by demonstrating there is a risk of harm that is "sure or very likely to cause serious illness and needless suffering." Brewer v. Landrigan, 131 S Ct. 445, 445 (2010) (). In other words, there must be a "substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 842 (1994). The Court finds that Plaintiff has failed to state a facially plausible claim for relief under the Eighth Amendment.
First, the court in Cook found Plaintiff's allegations concerning the presumptive ineffectiveness of imported non-FDA regulated foreign drugs to be conclusory and without any supporting factual allegations. 2011 WL 902111 at *3. Second,...
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