Jackson v. Danberg

• Citation: 656 F.3d 157
• Decision Date: 07 September 2011
• Docket Number: No. 11–9002.,11–9002.
• Parties: Robert W. JACKSON, IIIv.Carl C. DANBERG, Commissioner, Delaware Department of Correction; Thomas L. Carroll, Warden Delaware Correctional Center; Paul Howard, Bureau Chief Delaware Bureau of Prisons; Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution.Robert W. Jackson, III, individually and on behalf of the Certified Class, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

656 F.3d 157

Robert W. JACKSON, III

v.Carl C. DANBERG, Commissioner, Delaware Department of Correction; Thomas L. Carroll, Warden Delaware Correctional Center; Paul Howard, Bureau Chief Delaware Bureau of Prisons; Other Unknown State Actors Responsible for and participating in the carrying out of Plaintiff's Execution.Robert W. Jackson, III, individually and on behalf of the Certified Class, Appellant.

No. 11–9002.

United States Court of Appeals, Third Circuit.

Argued July 28, 2011.Filed: Sept. 7, 2011.

Helen A. Marino, Esq., Maria K. Pulzetti, Esq., Michael Wiseman, Esq. (Argued), Defender Association of Philadelphia, Federal Capital Habeas Corpus Unit, Philadelphia, PA, for Appellant.Elizabeth R. McFarlan, Esq., Marc P. Niedzielski, Esq., Gregory E. Smith, Esq., Paul R. Wallace, Esq. (Argued), Morgan Zurn, Esq., State of Delaware, Department of Justice, Wilmington, DE, for Appellees.Before: AMBRO, FISHER and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

A class of inmates sentenced to death by the State of Delaware and named plaintiff Robert W. Jackson, III (collectively referred to in this opinion as “Plaintiffs”), appeal from the District Court's denial of their motion to reopen and their motion for a stay of Jackson's execution. After careful review, we conclude that the District Court did not abuse its discretion, and, accordingly, we affirm.

I.

A. Facts

This is our second encounter with a 42 U.S.C. § 1983 challenge related to Delaware's lethal injection protocol. Much of the background factual information in this case is the same as we recounted in Jackson v. Danberg, 594 F.3d 210 (3d Cir.2010) (“ Jackson I ”), and so we only will briefly outline that background material before setting forth in more detail those facts essential to the resolution of this appeal.

Delaware law provides that:

[p]unishment of death shall, in all cases, be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such person sentenced to death is dead, and such execution procedure shall be determined and supervised by the Commissioner of the Department of Correction.

DEL.CODE ANN. tit. 11, § 4209(f) (2006 Supp.). The statute does not mandate the use of any particular drug or series of drugs.

On August 29, 2008, the Delaware Department of Correction (“DDOC”) instituted a new lethal injection protocol (“2008 Protocol”). The protocol calls for the sequential intravenous (“IV”) injection of three chemicals into an inmate's bloodstream. The first chemical is sodium thiopental, which renders an inmate unconscious. The second chemical is pancuronium bromide, a muscle relaxant that acts as a paralytic agent. The third and final chemical is potassium chloride, which induces cardiac arrest and causes the inmate's death. The 2008 Protocol also calls for the IV team, consisting of two people who may have at least one year of professional experience,¹ to examine the inmate to ensure he is unconscious before the pancuronium bromide is administered. The consciousness check requires the warden to call the inmate's name out loud to observe any reaction from the inmate. At the same time, a member of the IV team assesses the inmate's consciousness by touching the inmate, shaking his shoulder, and brushing his eyelashes. If the inmate is not unconscious, the protocol requires the execution team to repeat the administration of the first chemical and subsequent consciousness checks until the inmate is deemed unconscious.

Delaware amended its protocol on May 5, 2011. The amended protocol, which is before us today, includes only one significant difference. Due to a nationwide shortage of sodium thiopental, Delaware, along with a number of other states, revised its protocol to allow for the use of an alternative barbiturate, pentobarbital, as the first chemical to be administered.

B. Procedural History

Jackson, a Delaware state inmate convicted of first degree murder and sentenced to death by the State of Delaware, commenced this action on May 8, 2006. He filed a section 1983 action ² alleging that the State of Delaware's then-existing method of lethal injection created an unconstitutional risk of pain and suffering, cognizable under the Eighth and Fourteenth Amendments of the United States Constitution.³ The District Court certified a class under Fed.R.Civ.P. 23(b) consisting of all Delaware death row inmates and appointed class counsel. See Jackson v. Danberg, 240 F.R.D. 145 (D.Del.2007).

During the course of litigation in the District Court, Defendants amended their lethal injection protocol twice. Ultimately, the 2008 Protocol was enacted in an effort to incorporate the safeguards described by the Supreme Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), which upheld Kentucky's lethal injection protocol against a challenge under the Eighth Amendment. Upon adoption of the 2008 Protocol and at the direction of the District Court, Defendants moved for summary judgment. They argued that the 2008 Protocol fully complied with the mandate of Baze and that the lethal injection protocol, including the use of sodium thiopental, did not constitute cruel and unusual punishment. The District Court acknowledged that the DDOC had failed to follow its own procedures in certain executions but held that Plaintiffs had not shown a “substantial risk of an inadequate dose of sodium thiopental.” Jackson v. Danberg, 601 F.Supp.2d 589, 599 (D.Del.2009). The District Court granted summary judgment to Defendants and stayed executions pending appeal. Id.

Plaintiffs appealed, and Defendants cross-appealed the stay of executions. We affirmed the grant of summary judgment, applying Baze to our analysis. Jackson I, 594 F.3d 210. We held that to prevail on a claim that a risk of future harm runs afoul of the Constitution, an inmate must demonstrate that “the conditions presenting the risk must be ‘ sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ ” Id. at 216 (quoting Baze, 553 U.S. at 50, 128 S.Ct. 1520). We noted that “the proper administration of sodium thiopental is an indispensable link in the lethal injection chain for Eighth Amendment purposes, as it ensures that an inmate will not suffer under the effects of the second two drugs.” Id. at 225. In other words, although “[r]easonable people of good faith disagree on the morality and efficacy of capital punishment,” Delaware's 2008 Protocol is not unconstitutional under existing Supreme Court precedent. Id. at 230 (quoting Baze, 553 U.S. at 61, 128 S.Ct. 1520). The Supreme Court denied certiorari on October 12, 2010. Jackson v. Danberg, ––– U.S. ––––, 131 S.Ct. 458, 178 L.Ed.2d 287 (2010).

Shortly after Delaware changed its protocol to include pentobarbital as an alternative to sodium thiopental in May 2011, Plaintiffs filed a motion to reopen under Fed.R.Civ.P. 60(b)(6) and (d) and a motion to stay Jackson's execution with the District Court. Plaintiffs argued that the substitution of pentobarbital for sodium thiopental is a factual change that undermines the foundations of the prior ruling, constituting an exceptional circumstance under Rule 60(b)(6) and a circumstance calling for an independent action to prevent a miscarriage of justice under Rule 60(d). They relied on an expert report written by David B. Waisel, M.D., in support of their motion. Defendants, in turn, relied on an expert report by Dr. Mark Dershwitz, an anesthesiologist with a Ph.D. in pharmacology. The District Court denied both of Plaintiffs' motions. It found that a stay was not warranted because Plaintiffs had “not carried their burden to prove that they are likely to succeed on the merits of their Eighth Amendment claim.” Jackson v. Danberg, 2011 WL 3205453, at *3 (D.Del. July 27, 2011). The District Court also denied Plaintiffs' motion to reopen under both Rules 60(b)(6) and 60(d), concluding that “the record at bar is insufficient to reopen the judgment entered by [it] in 2009.” Id. at *4. Plaintiffs timely appealed the judgment of the District Court and filed an independent motion for a stay.

We denied the motion to stay on July 28, 2011, and affirmed the judgment of the District Court with an opinion to follow.⁴ Following our decision, the Supreme Court denied certiorari, and Robert Jackson was executed just after midnight on July 29, 2011, by lethal injection.⁵

II.

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) to consider the appeal by Plaintiffs from the District Court's denial of injunctive relief and under 28 U.S.C. § 1291 to consider the appeal by Plaintiffs from the District Court's denial of relief under Fed.R.Civ.P. 60(b) and (d). We review a district court's denial of a stay for abuse of discretion, which may be found where its conclusion includes the commission of a serious error of law or a mistake in considering the facts. Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir.1990). We also review a district court's denial of a Rule 60(b) and (d) motion to reopen for abuse of discretion. Morris v. Horn, 187 F.3d 333, 341 (3d Cir.1999).

III.

A. Stay

“[A] stay of execution is an equitable remedy” that “is not available as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). The standard for issuance of a stay is like that for issuance of a preliminary injunction, and requires consideration of four factors:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the...