Emmett v. Johnson

• Decision Date: 20 September 2007
• Docket Number: No. 3:07CV227-HEH.,3:07CV227-HEH.
• Citation: 511 F.Supp.2d 634
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Christopher Scott EMMETT, Plaintiff, v. Gene M. JOHNSON, et al., Defendants.

511 F.Supp.2d 634

Christopher Scott EMMETT, Plaintiff, v. Gene M. JOHNSON, et al., Defendants.

No. 3:07CV227-HEH.

United States District Court, E.D. Virginia, Richmond Division.

September 20, 2007.

Matthew L. Engle, Jennifer Leigh Givens, Charlottesville, VA, for Plaintiff.

Richard Carson Vorhis, Banci Enga Tewolde, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

HENRY E. HUDSON, District Judge.

Plaintiff, Christopher Scott Emmett, a Virginia state inmate sentenced to death, brings this civil rights action under 42 U.S.C. § 1983. The Complaint seeks equitable and injunctive relief for alleged violations, threatened violations, or anticipated violations of Plaintiffs right to be free from cruel and unusual punishment guaranteed by the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The matter is before the Court on Defendants' Motion for Summary Judgment and Plaintiffs response thereto. Because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid in the decisional process, the Court will dispense with oral argument.

Plaintiff does not challenge the constitutionality of his state capital murder conviction or his death sentence. They have been exhaustively reviewed and upheld. See Emmett v. Commonwealth, 264 Va. 364, 569 S.E.2d 39 (2002). This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is to be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact involves "disputes over facts that might affect the outcome of the suit under the governing law," not "[f]actual disputes that are irrelevant and unnecessary." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). It is the responsibility of the party seeking summary judgment to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324, 106 S.Ct. at 2553 (internal quotation marks omitted). When the motion for summary judgment is properly supported, the nonmoving party must then go beyond the pleadings and, by citing affidavits or "`depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. (quoting Fed.R.Civ.P. 56(c) and 56(e)). When reviewing a summary judgment motion, the court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir.1992)(citing Anderson, 477 U.S. at 255, 106 S.Ct. at 2513). Nevertheless, TN the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (internal citations omitted).

The parties have submitted affidavits, depositions, execution records, and other materials in response to the pending motion for summary judgment. Although a number of peripheral facts are disputed, e.g., sufficiency of formal medical training, lack of adequate physician oversight and inconsistent application of protocols, none are material to the core elements of Plaintiff s constitutional claims. Accordingly, the following facts are accepted as true for purposes of the motion for summary judgment. Additional facts will be set forth in conjunction with a discussion of the Plaintiff's specific arguments that the Defendants' lethal injection procedures are unconstitutional.

II. SUMMARY OF FACTS

Even though Plaintiff challenges only certain aspects of the chemical protocol used to carry out execution by lethal injection, an understanding of all its components and the methodology employed in their application is important to a full appreciation of those elements at issue. The process entails the sequential introduction of three chemicals. All chemicals used in the process are remotely introduced by pre-established intravenous ("IV") lines. The constituent injections are administered by an execution team. The execution team is comprised of a team leader who actually administers the various chemicals; the IV team, which is responsible for placement of the IV lines;¹ and the security team, which is responsible for security.

The entire process takes place in a one-room chamber. The inmate is strapped to a gurney in the front portion of the chamber, while the team leader, the IV team, and the physician Who pronounces death are positioned a few feet away, behind a curtain in the rear of the chamber. The curtain has a window to enable the team leader to observe the administration of the chemicals. The curtain also has two portals through which the IV lines pass.² The current team leader prefers to observe the administration of the chemicals through one of the portals because he finds his field of vision less obstructed than that through the window.

Initially, two grams of sodium thiopental, a barbiturate that induces unconsciousness, are administered. The intravenous line is then flushed with a saline solution, which ensures that the full dose of sodium thiopental is delivered. The saline flush also eliminates the possibility of an interaction between sodium thiopental and the second-stage drug, pancuronium bromide. Any such interaction outside of the body could significantly hinder the effectiveness of the sodium thiopental.

After this flushing procedure, pancuronium bromide, a neuromuscular blocking agent which causes paralysis in all muscles except the heart, is administered by IV.³ Pancuronium bromide suppresses involuntary seizures or motor manifestations that may occur during the execution process. The 50 mg quantity of pancuronium bromide administered during this stage is sufficient to cause the inmate to suffocate. Next, saline solution is again introduced to flush the line.

The final phase involves the introduction of 240 milliequivalents of potassium chloride, which causes cardiac arrest. Generally, within moments after the potassium chloride has been injected, the inmate's heart will stop beating. Shortly thereafter, brain activity will cease. A physician monitors the inmate's heartbeat and pronounces death. Virginia's lethal injection protocols provide that, "[i]f the heart monitor does not indicate a flat line reading within, ten minutes after completing the first set of lethal chemicals, then a second set of lethal chemicals will be administered (Pavulon and Potassium Chloride only), using the alternate IV line." (Docket No. 16 at 25.)

When the chemicals are properly administered, the chance of an inmate feeling any pain associated with his execution is less than 3/100 of one percent (.03%).⁴ Plaintiff has not adduced any evidence that suggests his particular physical characteristics are likely to increase that risk.

Plaintiff maintains that if an inmate receives less than a full dose of sodium thiopental, it is possible that he may appear to be asleep while still retaining a level of consciousness sufficient to experience some pain. (Pl.'s Opp. to Defs.' Mot. Summ. J. Ex. WW.) Additionally, if an inmate received as little as twenty percent of the intended dose of pancuronium bromide, he could be paralyzed and unable to communicate whether he is experiencing pain. (Pl.'s Opp. to Defs.' Mot. Summ. J. Ex. WW.) However, the fact that the same IV tube is ordinarily used to deliver all the drugs minimizes the risk that an inmate would not receive the beneficial effects of sodium thiopental, but would nevertheless experience any pain associated with the subsequently administered pancuronium bromide and potassium chloride.

While Plaintiff does present evidence that warrants some concern with aspects of Virginia's execution procedures, none rise to the level of an Eighth Amendment violation. For example, Plaintiff argues that the required training plan for members of the execution team has in fact never been created, and that the logs documenting training sessions for the IV team members contain large gaps, sometimes spanning months, in which no training has occurred. Plaintiff also presents evidence often executions in which second doses of pancuronium bromide and/or potassium chloride were administered and points out inconsistencies in the execution team members' understanding of the documented protocols for administering these second doses.

Despite Plaintiff's concerns, Virginia has taken considerable precautions to ensure that neither human error nor defective equipment increase the risk that Plaintiff will feel any pain. In this regard, Virginia has promulgated execution protocols that provide comprehensive instructions for carrying out an execution. In addition to specifying the procedures, the equipment, and the chemicals to be used in an execution by lethal injection, the protocols also cover the training and qualifications of the execution team. Defendants have supplemented the protocols with numerous additional unwritten safety measures that reduce the risk an inmate will experience pain during his execution. The Virginia Department of Corrections has taken significant steps to ensure the professionalism of the execution team.

There is no evidence that improper placement or flow of IV lines has resulted in a painful death for any...