Jackson v. Danberg

• Decision Date: 11 March 2009
• Docket Number: Civ. No. 06-300-SLR.
• Parties: Robert W. JACKSON, III, et al., Plaintiffs, v. Carl C. DANBERG, et al., Defendants.
• Court: U.S. District Court — District of Delaware

601 F.Supp.2d 589

Robert W. JACKSON, III, et al., Plaintiffs, v. Carl C. DANBERG, et al., Defendants.

Civ. No. 06-300-SLR.

United States District Court, D. Delaware.

March 11, 2009.

Michael Wiseman, Helen Marino and Maria Pulzetti, of the Federal Community Defender Office for the Eastern District of Pennsylvania, Capital Habeas Corpus Unit, Philadelphia, PA, for Plaintiffs.

Elizabeth R. McFarlan, Gregory E. Smith, Loren C. Meyers and Marc P. Niedzielski, Deputy Attorneys General, Delaware Department of Justice, Wilmington, DE, for Defendants.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. BACKGROUND

On May 8, 2006, Robert W. Jackson, III¹ filed a 42 U.S.C. § 1983 action seeking preliminary and final injunctive relief and a declaratory judgment regarding defendants'² procedure for carrying out his execution through lethal injection.³ (D.I. 2, 6) Plaintiff alleges that his execution⁴ under the likely protocol to be used by defendants would subject him to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. The court has jurisdiction pursuant to 28 U.S.C. § 1331.

A telephonic status conference with the parties was held on May 9, 2006, wherein the court expressed concerns over whether it had jurisdiction to consider plaintiff's claims on the merits. (D.I. 9) Considering that the United States Supreme Court had recently granted certiorari to resolve that very issue, the case was stayed until a decision issued in Hill v. McDonough,⁵ 05-8794, certiorari granted, 546 U.S. 1158, 126 S.Ct. 1189, 163 L.Ed.2d 1144 (2006). As part of that order, defendants were enjoined from carrying out plaintiff's execution until further order of the court. (D.I. 9)

On June 12, 2006, the Supreme Court ruled that plaintiff Hill's claim was cognizable under 42 U.S.C. § 1983 and was not subject to dismissal as a second or successive habeas corpus petition. Hill, 547 U.S. 573, 126 S.Ct. 2096 (2006). With jurisdiction evident, the court conducted a second teleconference,⁶ lifted the stay and ordered defendants to respond to the complaint. The parties agreed to an informal exchange of discovery materials as part of an effort to resolve the claims without litigation.⁷ (D.I. 12, 14-19)

On October 6, 2006, a scheduling order was imposed pursuant to Fed.R.Civ.P. 16, setting discovery to conclude on June 30, 2007 and a bench trial to commence on September 10, 2007. (D.I. 20) The case was also referred to United States Magistrate Judge Mary Pat Thynge for the purpose of alternative dispute resolution. (D.I. 20, 21)

On December 1, 2006, plaintiff filed an opposed motion for class certification to include all current and future inmates sentenced to death by a state court in the State of Delaware. (D.I. 26, 27, 28, 29) Following briefing and oral argument, the court granted the motion to certify the class pursuant to Fed.R.Civ.P. 23(b)(1) & (2).⁸ (D.I. 30, 31 33)

A mediation teleconference was held on May 15, 2007. On May 24, 2007, defendants moved for a protective order. (D.I. 38) Plaintiffs opposed the protective order and moved to amend the discovery deadline. (D.I. 39) The court held a third telephonic conference on June 8, 2007, wherein the parties discussed, inter alia, problems involving discovery. (D.I. 46) As a result, the scheduling order was amended, extending discovery through October 1, 2007 and re-scheduling the bench trial to commence on October 9, 2007. (D.I. 43)

For about the next two months, the parties exchanged discovery, noticed depositions of fact and expert witnesses and toured the lethal injection facility (Building 26, Bate stamp no. 01871) at the DCC.⁹ (D.I. 47-58, 61-73; D.I. 102) On August 15, 2007, plaintiffs moved for leave to amend the complaint to add claims under Delaware's Administrative Procedures Act; the motion was withdrawn on August 26, 2007. (D.I. 55, 56, 60)

On September 26, 2007, the court conducted a fourth telephonic status conference to discuss the effect of the decision of the United States Supreme Court in granting the petition for certiorari in Baze v. Rees, ___ U.S. ___, 128 S.Ct. 34, 168 L.Ed.2d 809 (2007).¹⁰ (D.I. 80) While plaintiffs wanted to proceed with discovery in order to keep the case moving while the Supreme Court decided the petition, defendants argued the entire case should be stayed and discovery halted until a decision issued. (D.I. 84) Because defendants resisted the court's suggestion to continue with discovery, the parties were warned that resolution of the case might be further delayed by resuming discovery after the Supreme Court's decision; the trial was also postponed. (D.I. 84 at 6-8)

On April 16, 2008, the Supreme Court held that the risk of improper administration of the initial drug did not render Kentucky's three-drug protocol cruel and unusual and found that Kentucky's failure to adopt proposed alternatives to the three-drug protocol did not constitute cruel and unusual punishment. Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). On April 17, 2008, the court scheduled an in-person status conference and ordered the parties to be prepared to "address the specific procedures that have been employed by the DOC for death by lethal injection in light of the Supreme Court's opinion in Baze v. Rees ...." (D.I. 83) During this conference, the court noted that "the only issue before us is whether the State of Delaware has a protocol that is either the same as Kentucky's or substantially similar." (D.I. 88 at 2-3)

At the June 23, 2008 pretrial conference, it was evident that Delaware had not embraced Kentucky's protocol. (D.I. 93 at 3-4) The court concluded that an evidentiary hearing would have to be conducted in order to determine, through expert testimony, whether the differences between the two protocols were significant. The evidentiary hearing was scheduled for September 10, 2008. (D.I. 95)

Defendants filed a revised lethal injection protocol on August 29, 2008. (D.I. 108). Following a September 5, 2008 telephone conference, the case was referred to mediation for the purpose of negotiating the final version of Delaware's lethal injection protocol. (D.I. 109, 128) The evidentiary hearing scheduled for September 10 was cancelled. Magistrate Judge Thynge conducted a mediation conference on October 26, without success. (D.I. 111, 114)

On October 30, 2008, the court ordered plaintiffs to specifically identify the portions of Delaware's protocol that are substantially different from that approved by the Supreme Court in Baze.¹¹ (D.I. 116) Defendants filed a motion for summary judgment on December 19, 2008, which plaintiffs opposed. (D.I. 121-126) Oral argument was conducted on January 29, 2009. (D.I. 127)

II. STANDARD OF REVIEW

A court shall grant summary judgment only 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 judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007). Facts that could alter the outcome are material, and disputes are genuine if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct. Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir.1995) (internal citations omitted).

If the moving party has demonstrated an absence of material fact, the nonmoving party then must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). However, a party opposing summary judgment must present more than just bare assertions, conclusory allegations or suspicions' to show the existence of a genuine issue. Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). To survive a motion for summary judgment, plaintiff cannot rely merely on the unsupported allegations of the complaint, and must present more than the mere existence of a scintilla of evidence in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. THE OLD LETHAL INJECTION PROTOCOL

In 1992, Delaware carried out its first execution by lethal injection using a three-drug protocol ("the old protocol"):¹² (1) sodium pentothal, also known as sodium thiopental; (2) pancuronium bromide, also known as pavulon; and (3) potassium chloride. (D.I. 122) This three-drug combination has been used in the lethal injection executions of 13 prisoners.¹³ The team responsible for inserting the intravenous lines ("IV") into each inmate sentenced to the death penalty ("ISDP") and administering or "pushing" the drugs through the IV has consisted of four members, John Doe 1, Jane Doe 1, John Doe 2 and John Doe 3 ("the IV team").¹⁴ (Depositions 7/6/07, 6/5/07, 5/21/07, 5/25/07). The IV team is distinguishable from the "execution team," as the latter consists of DOC employees responsible for the security, safety and...