Jordan v. Cain
| Decision Date | 07 December 2022 |
| Docket Number | Civil Action 3:15CV295-HTW-LGI |
| Parties | RICHARD JORDAN and RICKY CHASE PLAINTIFFS v. BURL CAIN, Commissioner, Mississippi Department of Corrections, in his Official Capacity; MARC MCCLURE, Superintendent, Mississippi State Penitentiary, in his Official Capacity; THE MISSISSIPPI STATE EXECUTIONER, in his Official Capacity; and UNKNOWN EXECUTIONERS, in their Official Capacities DEFENDANTS THOMAS EDWIN LODEN, JR., ROBERT SIMON, and ROGER ERIC THORSON INTERVENORS |
| Court | U.S. District Court — Southern District of Mississippi |
On December 14, 2022, Thomas Edwin Loden, Jr. (“Loden”) is scheduled to be executed by lethal injection by the State of Mississippi. Back in 2000, Loden was indicted for capital murder, rape, and four counts of sexual battery for kidnapping and murdering, by asphyxiation a sixteen-year-old young lady after he had sexually abused her for hours. During this horrific attack, Loden's depraved mindset convinced him to videotape most of the sordid activity. Following his arrest, on September 21, 2011 Loden waived his right to a jury trial. He pled guilty to all six counts of his indictment. The Circuit Court of Itawamba County, Mississippi, accepted Loden's pleas, found Loden guilty on each count, and sentenced Loden to death.
Loden then began his appellate trek, first through the state court system, and later through the federal procedural appellate path. He lost his bid to overturn his convictions in both the state and federal venues.
By state law, the Attorney General for the State of Mississippi was directed under Miss. Code Ann. § 99-19-106[1] to petition the Mississippi Supreme Court to set an execution date for Loden, since he had exhausted all appeals, state and federal. The Mississippi Attorney General did not immediately submit this petition to the Mississippi Supreme Court, supposedly because the State of Mississippi lacked the execution drugs, but was avidly seeking such from willing and proper vendors.
Meanwhile on May 20, 2015, Loden petitioned this court for permission to join in this lawsuit, which was attacking Mississippi's lethal injection execution protocol under the Eighth Amendment's proscription against cruel and unusual punishment. The State's Attorney General's Office voiced no objection to Loden's request to intervene. Loden, now, has been accorded plaintiff status in this lawsuit for over seven years[2].
On October 4, 2022, the State of Mississippi filed a Motion to Set Execution Date in the Mississippi Supreme Court. See Motion to Set Execution Date, Loden v. State of Mississippi, No. 2002-DP-00282-SCT (Miss. Oct. 4 2022).[3] Notably, the State petitioned the Mississippi Supreme Court to set an execution date for Loden even though the parties, who are nearing the end of discovery and beginning motion practice to lead to a civil trial, have not received a ruling from this court on the very method the State has selected for Loden's execution, lethal injection.
By a vote of seven to two, the Mississippi Supreme Court has set Loden's execution date for December 14, 2022. The two dissenters, Justice Leslie D. King, and Justice James W. Kitchens, campaign for a stay of Loden's execution, so that Loden possibly can profit from his challenge to Mississippi's lethal injection protocol. If Mississippi is prevented from using the three-drug “cocktail” under its lethal injection protocol, Mississippi can still seek to execute Loden under Mississippi's execution scheme of Miss Code Ann. § 99-19-51(1), which authorizes executions by the alternative means of nitrogen hypoxia, electrocution and firing squad. The seven-member majority of Justices on the Mississippi Supreme Court, apparently unimpressed by the minority's ethical arguments for not setting an execution date, without addressing the arguments, but in obedience to Miss. Code Ann. § 99-19-106's declaration that “…the court shall” set an execution date for a person sentenced to the death penalty… “on motion of the state that all state and federal remedies have been exhausted…” went ahead and set the execution date.
Before this court, now, is Plaintiffs' Motion for Order under the All Writs Act, Title 28 U.S.C. §1651(a)[4] [Docket no. 260], asking this court to order Defendants to withdraw their motion seeking an execution date from the Mississippi Supreme Court and/or enjoin the Defendants from executing any of the Plaintiffs in this case while litigation remains pending.
Plaintiffs/Intervenors in this civil action are inmates on death row awaiting execution by the State of Mississippi. On April 16, 2015, Richard Jordan and Ricky Chase, two condemned inmates, initiated this lawsuit by filing their Complaint for Preliminary and Permanent Injunctive Relief under Title 42 U.S.C. § 1983[5], challenging the constitutionality of Mississippi's method of execution, lethal injection. Robert Simon, Roger Thorson, and Loden, thereafter, intervened in the case. Plaintiffs Ricky Jordan and Ricky Chase filed the Motion sub judice, along with Intervenor Loden (collectively, Loden and the original plaintiffs are referred to as “Plaintiffs” throughout this Opinion).
The defendants currently[6] are: Burl Cain, in his official capacity as Commissioner of the Mississippi Department of Corrections (“MDOC”); Marc McClure, in his official capacity as the Superintendent of the Mississippi State Penitentiary (“MSP”); and the Mississippi State Executioner, in his official capacity (collectively, defendants herein are referred to as “the State” or “Defendants”).
Plaintiffs seek an Order from this Court enjoining the Defendants, their counsel, and anyone in active concert with them: (1) to withdraw the Motion to Set Execution Date filed by Attorney General Lynn Fitch on behalf of the State of Mississippi in Thomas Edwin Loden, Jr. v. State of Mississippi, Nos. 2002-DP-00282-SCT and 2006-CA-00432-SCT,4 and/or (2) to refrain from executing Intervenor Loden, or any of the Plaintiffs and Intervenors until the litigation in this case is completed.
Plaintiffs invoked the jurisdiction of this federal court under Title 28 U.S.C. §1331, which states: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Plaintiff's causes of action, as stated infra, arise under: Title 42 U.S.C. §1983[7], for alleged and threatened violations of Plaintiffs' rights to due process and to be free from cruel and unusual punishment under the Eighth[8]and Fourteenth[9] Amendments to the United States Constitution; Title 28 U.S.C. §1367(a)[10];and the Mississippi State Constitution.
Plaintiffs herein do not challenge their respective death penalty sentences; rather, the Plaintiffs challenge the manner in which the State plans to carry out their executions. In 2015 when Plaintiffs initially filed this challenge to Mississippi's execution protocol, Mississippi utilized a three-drug lethal injection protocol, adopted in March, 2012. Mississippi's execution law provided that executions should take place by “continuous intravenous administration of lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical paralytic agent until death is pronounced.” 2016 Miss. Laws Ch. 452. Sodium pentothal was originally used as the first drug in this three-drug “cocktail”, until that drug became unavailable. Later, the Defendants resorted to pentobarbital, and eventually to midazolam as the first drug. This court, thereafter, permitted the Plaintiffs herein to amend their Complaint to attack the use of these drugs. Plaintiffs filed their Amended Complaint on September 28, 2015 [Docket no. 50].
Plaintiffs, by way of their Amended Complaint, clarified that “the lethal injection protocol promulgated by the MDOC is not at issue in this lawsuit[; rather,] this civil action challenges the use of compounded drugs (including but not limited to compounded pentobarbital) and midazolam in lethal injection executions conducted by MDOC.” [Docket no. 50, ¶ 6]. Plaintiffs asserted that Mississippi's use of this death penalty protocol violates the Eighth Amendment ban against cruel and unusual punishment.
Plaintiffs alleged the following claims: 1) Defendants' use of compounded pentobarbital or midazolam in a three-drug lethal injection protocol violates Plaintiffs' right to be free from cruel and unusual punishment under the United States and Mississippi Constitutions; 2) Defendants' failure to use an “ultra short-acting barbiturate or other similar drug” violates Plaintiffs' right to be free from cruel and unusual punishment and right to due process under the United States and Mississippi Constitutions; 3) Defendants' continued use of any three-drug protocol violates their right to be free from cruel and unusual punishment under the United States and Mississippi Constitutions; 4) Defendants' plan to use undisclosed compounds or ingredients in the lethal injection protocol violates Plaintiffs' right to notice of the intended method of execution under the United States and Mississippi Constitutions; and 5) Defendants' failure to disclose the identities of the manufacturer and/or supplier of lethal injection drugs violates Plaintiffs' right of access to the courts under the United States and Mississippi Constitutions. See First Amended Complaint at 39-55, Jordan v. Cain, No. 3:15-CV-295-HTW-LGI (S.D.Miss. Sept. 28, 2015), Docket no. 50; Intervenor Complaint at 28-40, Jordan v. Cain, No. 3:15-CV-295-HTW-LGI (S.D.Miss. June 12, 2020), Docket no. 208.
Plaintiffs previously have sought and obtained a...
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