McGehee v. Hutchinson
| Decision Date | 15 April 2017 |
| Docket Number | Case No. 4:17-cv-00179 KGB |
| Parties | JASON MCGEHEE, et al. PLAINTIFFS v. ASA HUTCHINSON, et al. DEFENDANTS |
| Court | U.S. District Court — Eastern District of Arkansas |
CAPITAL CASE
Plaintiffs Jason McGehee, Stacey Johnson, Marcel Williams, Kenneth Williams, Bruce Ward, Ledell Lee, Jack Jones, Don Davis, and Terrick Nooner are inmates currently serving on death row in Arkansas. They bring this 42 U.S.C. § 1983 action against defendants Asa Hutchinson, who is sued in his official capacity as Governor of Arkansas, and Wendy Kelley, who is sued in her official capacity as Director of the Arkansas Department of Correction ("ADC"), to challenge various aspects of their impending executions.1 This Court has jurisdiction under 28 U.S.C. §§ 1331.
Before the Court is defendants' motion to dismiss (Dkt. No. 26). Plaintiffs have responded to defendants' motion (Dkt. No. 31). Defendants move to dismiss many of plaintiffs' claims based on legal arguments that do not go to the actual merits of the claims, such as res judicata and collateral estoppel. The Court denies these arguments for two reasons. First, and most importantly, the Court finds that this action is not barred by res judicata and collateral estoppel under Arkansas law. Second, the relief plaintiffs seek here is equitable relief. It would beinequitable under the circumstances for this Court to dismiss this case without hearing evidence on whether the state's intended use of midazolam would violate the Eighth Amendment. The circumstances are that, within the past week, a "circuit split" appears to have developed on this very issue. See In re Ohio Execution Protocol, No. 17-3076, 2017 WL 1279282, at *11-15 (6th Cir. Apr. 6, 2017); Arthur v. Comm'r, Alabama Dep't of Corr., 840 F.3d 1268, at 1300 (11th Cir. 2016), cert. denied sub nom. Arthur v. Dunn, 137 S. Ct. 725 (2017). At issue is the method the state of Arkansas will use to execute plaintiffs. As the Supreme Court simply put it, because "execution is the most irremediable and unfathomable of penalties . . . death is different." Ford v. Wainwright, 477 U.S. 399, 411 (1986). This weighs in favor of hearing plaintiffs' claims. It does not mean that, on the merits, plaintiffs have "a significant possibility of success" on their claims. Jones v. Hobbs, 604 F.3d 580, 581 (8th Cir. 2010) (internal quotation marks omitted) (quoting Hill v. McDonough, 547 U.S. 573, 584 (2006)). For the claims that survive defendants' motion to dismiss, that legal analysis and determination are in this Court's Preliminary Injunction Order.
For these and the following reasons, the Court grants in part and denies in part defendants' motion to dismiss (Dkt. No. 26).
The following alleged facts are taken from plaintiffs' complaint and its attachments (Dkt. No. 2-2). The statements made in plaintiffs' complaint are allegations, not proven facts. However, at this stage of the proceedings, the Court must accept all allegations contained in the complaint as true, and the Court must draw all reasonable inferences from the complaint in favor of the plaintiffs, the nonmoving parties. See Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (). Therefore, for the purposes of this Order, the Court will present plaintiffs' allegations as if they are proven facts.
On February 24, 2017, Governor Hutchinson set execution dates for each of the plaintiffs, excluding Mr. Nooner. Mr. Davis and Mr. Ward are currently scheduled to be executed on April 17, 2017; Mr. Johnson and Mr. Lee on April 20, 2017; Mr. Jones and Marcel Williams on April 24, 2017; and Mr. McGehee and Kenneth Williams on April 27, 2017. Since the 1976 Supreme Court decision in Gregg v. Georgia, 428 U.S. 153 (1976), no state has carried out eight executions in 11 days.2 No state has attempted as many as eight executions in a month since 1997. It has been 27 years since a state successfully executed two people on the same day. In 2014, the state of Oklahoma attempted to execute two people on the same day, but state officials canceled the second execution after complications arose in the first.
On at least one occasion, Governor Hutchinson stated that he "scheduled the executions so as to exhaust the State's supply of midazolam before it expires" (Dkt. No. 2-2, ¶ 22). Arkansas Code Annotated § 5-4-617 provides that lethal injection is the appropriate method of execution and that the ADC shall select one of two options for a lethal-injection protocol, depending on the availability of the drugs: (1) a barbiturate; or (2) midazolam, followed by vecuronium bromide, followed by potassium chloride. Director Kelley adopted a written and largely undisclosed lethal-injection protocol for executions using midazolam, which the ADC intends to follow for plaintiffs' executions. "The entirety of Plaintiffs' knowledge about the midazolam protocol is encompassed in a public document known as 'Attachment C[,]'" which is attached as an exhibit to the complaint(Dkt. No. 2-2, ¶ 10). On March 10, 2017, counsel for plaintiffs sent a letter with an attached Freedom of Information Act request to Jim DePriest, ADC's General Counsel, requesting additional information and documents pertaining to the ADC's execution protocol (Id., at 72-74). On March 15, 2017, Mr. DePriest responded to plaintiffs' counsel by letter and stated that there were no additional records, beyond Attachment C ("Arkansas Midazolam Protocol"), that were responsive to counsel's request, and that if there were records, they would be exempt from disclosure (Id., at 75-77).
The Arkansas Midazolam Protocol, which was last revised on August 6, 2015, provides that plaintiffs will be executed by receiving successive injections of 500 milligrams ("mg") of midazolam, 100 mg of vecuronium bromide, and 240 milliequivalents ("mEq") of potassium chloride. The Arkansas Midazolam Protocol provides that, after the midazolam is injected, but before the injection of vecuronium bromide, the ADC's Deputy Director, or his or her designee, must determine whether the inmate is unconscious by using "all necessary and medically-appropriate methods" (Dkt. No. 2-2, Exhibit 1, at 70). If the Deputy Director, or his or her designee, determines that the prisoner is unconscious, the vecuronium bromide and potassium chloride are administered. If the inmate is not unconscious, the Arkansas Midazolam Protocol provides that an additional 500 mg of midazolam will be administered. After the additional midazolam is administered, the Deputy Director, or his or her designee, conducts a second consciousness check. If the prisoner is unconscious, the second and third drugs are administered.
The Arkansas Midazolam Protocol provides that the drugs will be administered by an intravenous infusion device ("IV"). The IV lines must be set up by members of the "IV team," who must have at least two years of professional experience in at least one of the following fields: emergency medical technician-intermediate; emergency medical technician-paramedic; nurse;physician assistant; or physician. If issues with the IV lines arise, "the Deputy Director, or designee, will direct the IV Team to suspend further action and thereafter summon trained, educated, and experienced person(s) necessary to establish a primary IV line as a peripheral line or as a central venous line" (Id., at 67).
Plaintiffs identify what they characterize as four "botched" executions that have taken place since 2014.
1. On January 16, 2014, Dennis McGuire was executed by the state of Ohio using a two-drug combination of 10 mg midazolam and 40 mg hydromorphone. The execution took 25 minutes to complete, and Mr. McGuire reportedly moved, gasped, and made choking and snorting sounds during the procedure.
2. On April 29, 2014, Clayton Lockett was executed by the state of Oklahoma using a three-drug combination of 100 mg of midazolam followed by a paralytic and potassium chloride. State officials halted the execution after Mr. Lockett awoke during administration of the second and third drugs, but he died 40 minutes after the procedure commenced. After Oklahoma attempted to abort Mr. Lockett's execution, it canceled the execution of another man who was scheduled to be executed the same day. After these events, the Oklahoma Department of Public Safety concluded that executions should be spaced at least seven days apart.
3. On July 23, 2014, Joseph Wood was executed by the state of Arizona using a two-drug combination of 750 mg midazolam and 750 mg hydromorphone. Mr. Wood's execution lasted two hours before he died, and Mr. Wood reportedly gasped and snorted during the execution.
4. On December 8, 2016, Ronald Bert Smith was executed by the state of Alabama using a three-drug combination of 500 mg of midazolam, followed by 600 mg of rocuroniumbromide, followed by 240 mEq of potassium chloride. Mr. Smith's execution lasted approximately 34 minutes, and Mr. Smith reportedly struggled for breath as he heaved and coughed for approximately 13 minutes. Mr. Smith's attorney, Spencer Hahn, who was present at the execution, reported that:
[T]wo minutes after the midazolam began flowing, Smith began having "regular asthmatic-sounding barking coughs every ten seconds or so." Smith was awake after the first consciousness check, "as he was still moving his head, hands and arms, coughing, and attempting to speak." After the second consciousness check,...
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