Jones v. Hobbs

• Decision Date: 26 July 2010
• Docket Number: Case No. 5:10CV00065 JLH.
• Parties: Jack Harold JONES, Plaintiffv.Ray HOBBS, in his official capacity as Acting Director of the Arkansas Department of Correction, DefendantDon W. Davis; Alvin Bernal Jackson; Kenneth Dewayne Williams; Stacey Eugene Johnson; Jason Farrell McGehee; and Bruce Ward, Intervenors.
• Court: U.S. District Court — Eastern District of Arkansas

745 F.Supp.2d 886

Jack Harold JONES, Plaintiff

v.Ray HOBBS, in his official capacity as Acting Director of the Arkansas Department of Correction, DefendantDon W. Davis; Alvin Bernal Jackson; Kenneth Dewayne Williams; Stacey Eugene Johnson; Jason Farrell McGehee; and Bruce Ward, Intervenors.

Case No. 5:10CV00065 JLH.

United States District Court, E.D. Arkansas, Pine Bluff Division.

July 26, 2010.

Dale E. Adams, Montgomery, Adams & Wyatt, PLC, Jeffrey M. Rosenzweig, Attorney at Law, Little Rock, AR, for Plaintiff.Deborah Ruth Sallings, Arkansas Public Defender Commission, Little Rock, AR, for Don W. Davis, Jason Farrell McGehee.Jeffrey M. Rosenzweig, Attorney at Law, Little Rock, AR, for Stacey Eugene Johnson, Kenneth Dewayne Williams, Jason Farrell McGehee.Joshua R. Lee, Federal Public Defenders Office, Little Rock, AR, for Jason Farrell McGehee.Jennifer A. Merrigan, Joseph W. Luby, Public Interest Litigation Clinic, Kansas City, MO, for Bruce Ward.C. Joseph Cordi, Jr., Shawn J. Johnson, Arkansas Attorney General's Office, Little Rock, AR, for Defendant.

OPINION AND ORDER

J. LEON HOLMES, District Judge.

Jack Harold Jones, Don W. Davis, Alvin Bernal Jackson, Kenneth Dewayne Williams, Stacey Eugene Johnson, Jason Farrell McGehee, and Bruce Ward brought this action pursuant to 42 U.S.C. § 1983 alleging that Arkansas's recently enacted Methods of Execution Act ¹ (“MEA”) violates the due process clause of the Fourteenth Amendment to the United States Constitution and the ex post facto clause in Article I, Section 10 of the United States Constitution. The Court dismissed the complaints without prejudice for failure to state a claim upon which relief may be granted. The plaintiffs have now filed a motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure asking the Court to vacate the judgment dismissing their complaints. All of the plaintiffs argue that newly discovered evidence warrants setting aside the judgment and permitting them to amend their complaints. McGehee and Ward make an additional argument. They alleged in their complaints that the Arkansas Department of Correction (“ADC”) violates the Food, Drug and Cosmetic Act and the Controlled Substances Act by using drugs in lethal injection without FDA approval and without a prescription. The Court failed to address those claims in the opinion and order explaining the reasons for the dismissal. McGehee and Ward argue that the judgment of dismissal should be vacated as to them because the Court failed to address those claims. The plaintiffs other than McGehee and Ward, as a part of the relief that they request, seek leave to amend their complaints to assert claims that the ADC violates the FDCA and the CSA.

I.

Rule 59(e) motions serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence. United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.2006). Rule 59(e) motions “cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment.” Id. The moving party must show that the evidence was discovered after the trial, that the moving party exercised due diligence to discover the evidence before the trial ended, that the evidence is material and not merely cumulative or impeaching, and that a new trial including the new evidence would probably produce a different result. Id.

The new evidence presented by the plaintiffs includes an article from the Texarkana Gazette, which attributes to Dina Tyler, Public Information Officer for the ADC, a statement that the MEA allows the Department of Correction “flexibility in case one of the chemicals used in lethal injections became unavailable, was improved or a more effective substitute emerged.” This flexibility, according to the article, would allow executions to proceed, instead of having to be stayed until the Legislature changed the protocol. The article also states that Tyler “said the department provides information about the drugs and procedures for execution to each death row inmate.” The article does not state that there is a high likelihood that the protocol will in fact be changed prior to the execution of any of the plaintiffs in this action. The article does not support the plaintiffs' allegations that the lethal injection protocol might be changed under circumstances in which they could not discover and challenge the changed protocol.

The plaintiffs also offer an article from an Ohio newspaper discussing a worldwide shortage of the anesthetic used in lethal injections. However, the article does not suggest that the ADC is without the anesthetic or that it is likely that the anesthetic will be unavailable to the ADC. Nor does the article suggest that if the anesthetic were unavailable the ADC would change the protocol and proceed with lethal injections using no anesthetic.

In summary, the newly discovered evidence does not show that it is likely that the protocol will be changed before execution of any of the plaintiffs or that the plaintiffs would be prevented from learning of any such change, if one occurs. Even if the complaints were amended to include the information in the two news articles, the complaints would still fail to raise the right to relief above a speculative level and therefore would still fail to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).

II.

As mentioned, McGehee and Ward contend that the ADC violates the Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301 et seq., as well as the Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801 et seq. The Court granted McGehee's and Ward's motions to intervene in the same order in which the Court dismissed all of the plaintiffs' complaints for failure to state a claim, but the Court failed to address McGehee's and Ward's claims that the ADC violates the FDCA and the CSA.

The complaints by McGehee and Ward allege four counts that are relevant to the present issue. Count 3 alleges that the FDCA forbids the administration of any dangerous drug without a prescription by a practitioner who is licensed by law to administer such drugs, citing 21 U.S.C. § 353. Count 3 then alleges that the ADC does not have or intend to obtain a valid prescription for the drugs that would be used in an execution by lethal injection. Count 4 alleges that the FDCA requires that drugs obtained through interstate commerce be approved by the FDA for their intended use, citing 21 U.S.C. § 355. Count 4 then alleges that the drug or drugs that the ADC intends to use in execution by lethal injection have not been approved by the FDA for that use. Count 5 alleges that the CSA forbids the administration of any controlled substance without a valid prescription, citing 21 U.S.C. § 829(b). Count 5 then alleges that the ADC intends to use in lethal injection one or more controlled substances and does not have a valid prescription for those controlled substances. Count 6 alleges that the CSA requires that any person who dispenses or proposes to dispense a controlled substance must obtain a registration from the Attorney General permitting him to do so, citing 21 U.S.C. § 822. Count 6 then alleges that the ADC intends or proposes to dispense one or more controlled substances during execution without obtaining registration from the Attorney General. In their prayers for relief, McGehee and Ward request that the Court declare that the defendants are violating or threatening to violate the FDCA and the CSA and, in addition, that the Court grant a permanent injunction pursuant to 28 U.S.C. § 2202 barring execution under the MEA and in violation of the FDCA or CSA.

The district courts of the United States have jurisdiction to enjoin violations of the FDCA. 21 U.S.C. § 332. Except for actions by a state to enforce specified sections of the FDCA, all proceedings to enforce or to restrain violations of the FDCA must be brought by and in the name of the United States. 21 U.S.C. § 337. Thus, the FDCA does not provide for a private right of action to enforce its provisions. See Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 349 n. 4, 121 S.Ct. 1012, 1018, 148 L.Ed.2d 854 (2001) (“The FDCA leaves no doubt that it is the Federal Government rather than private litigants who are authorized to file suit for noncompliance with the medical device provisions: ‘All such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States.’ ” (citing 21 U.S.C. § 337(a))); In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781, 788 (3rd Cir.1999) ( “It is well settled ... that the FDCA creates no private right of action.”). Similarly, the CSA provides that the district courts of the United States have jurisdiction to enjoin violations of that statute, 21 U.S.C. § 882(a), but Congress provided no private right of action to enforce its provisions, McCallister v. Purdue Pharma L.P., 164 F.Supp.2d 783, 793 n. 16 (S.D.W.Va.2001).

McGehee and Ward do not contend that the FDCA or the CSA creates a private right of action. Instead, they argue that a court may entertain a suit seeking a declaration that the ADC has violated or will violate those statutes even though Congress provided for no private right of action under either of them.

Two district courts and one court of appeals have addressed the issue. The Western District of Missouri held that inmates facing death by lethal injection may bring an action pursuant to the Declaratory Judgment Act seeking a declaration that the state's lethal injection protocol violates the FDCA and the CSA even though those statutes create no private right of action. Ringo v. Lombardi, 706 F.Supp.2d 952 (W.D.Mo.2010). The Southern District of Ohio held, in contrast, that inmates facing death by lethal injection may not bring an...