Hoffman v. Jindal

• Decision Date: 07 February 2013
• Docket Number: NO. 12-796-JJB,12-796-JJB
• Parties: JESSIE HOFFMAN, ET AL. v. BOBBY JINDAL, ET AL.
• Court: U.S. District Court — Middle District of Louisiana

JESSIE HOFFMAN, ET AL. v. BOBBY JINDAL, ET AL.

NO. 12-796-JJB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

Dated: February 7, 2013

SUPPLEMENTAL REASONS FOR GRANTING INTERVENOR'S MOTION FOR

PRELIMINARY INJUNCTION

This matter came before the Court on Intervenor Christopher Sepulvado's Motion for a Preliminary Injunction the morning of February 7, 2013. (Doc. 14). Sepulvado moved to enjoin his execution, which was scheduled for February 13, 2013. At oral argument, the Court granted the motion, reserving the right to issue supplemental reasons.

There are two claims raised in Sepulvado's Section 1983 complaint and this ruling addresses the first of the two. The Court expresses no opinion on the second issue. The first issue is a 14th Amendment Due Process Claim relative to the disclosure of the current protocol for the execution of an inmate by the State of Louisiana. The second issue is an 8th Amendment Cruel and Unusual Punishment claim. There is no question that the intervenor, Sepulvado, has a right to raise that the method of execution does inflict cruel and unusual pain. However, in order to raise that 8th Amendment constitutional claim, Sepulvado contends that he has a 14th Amendment right to know what the protocol the state will use is. It is axiomatic that if an inmate who is to be executed cannot challenge a protocol as violative of the 8th Amendment until he knows what that protocol contains.

Prior to 2010, the State of Louisiana used a three-drug procedure to execute inmates via lethal injection. Counsel for the State has indicated that the first drug in the procedure, sodium thiopental, is no longer available and a single dose of pentobarbital will now be used to execute inmates. However, the State has refused to officially disclose what the protocol is until formal discovery procedures have been complied with.

The State has argued that this is an 11th hour appeal and that other courts have found that the use of pentobarbital is not violative of the 8th Amendment. It is well-settled in the United States Court of Appeals for the Fifth Circuit that "death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a State's method of carrying it out." Berry v. Epps, 506 F.3d 402, 404 (5th Cir. 2007). In White v. Johnson, the Fifth Circuit denied a motion for a stay, explaining that the inmate had been sentenced to death for over six years and "only now, with his execution imminent, has decided to challenge a procedure for lethal injection that the State has been using for his entire stay on death row." White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005). Moreover, the Fifth Circuit explained that "a plaintiff cannot wait until a stay must be granted to enable him to develop facts and take the case to trial-not when there is no satisfactory explanation for the delay." Reese v. Livingston, 453 F.3d 289, 291 (5th Cir. 2006).

Here, there is a satisfactory explanation for the delay. Sepulvado has been trying to determine what the protocol is for years and the State will not provide this information. It is also factually distinguishable from White because in White, the inmatewas challenging a known procedure that had been in place for the duration of his death row stay. Here, ever since 2010, the procedure has been unknown.

"Fundamental fairness, if not due process, requires that the execution protocol that will regulate an inmate's death be forwarded to him in prompt and timely fashion." Oken v. Sizer, 321 F.Supp.2d 658, 664 (D. Md. 2004). Fundamental fairness requires that the inmate be given meaningful and adequate notice of how his rights have been affected by the changes in the execution protocol....