Moore v. Rees

• Decision Date: 13 October 2015
• Docket Number: CIVIL ACTION NO. 3: 06-22-KKC
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: Brian Keith Moore and Roger Dale Epperson, Plaintiffs, v. John D. Rees, et al., Defendants.

138 F.Supp.3d 860

Brian Keith Moore and Roger Dale Epperson, Plaintiffs,

v.John D. Rees, et al., Defendants.

CIVIL ACTION NO. 3: 06-22-KKC

United States District Court, E.D. Kentucky, Central Division at Frankfort.

Signed October 13, 2015

David M. Barron, Marguerite Neill Thomas, Department of Public Advocacy–Capital Post Conviction Unit, Frankfort, KY, for Plaintiffs.

Brenn Oliver Combs, Office of Legal Services–Dept Of Corrections, John C. Cummings, Justice & Public Safety Cabinet, Frankfort, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

KAREN K. CALDWELL, CHIEF JUDGE, UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF KENTUCKY

This matter is before the Court to address several issues previously raised in this proceeding, including:

• whether the plaintiffs' claims are barred by the statute of limitations under Cooey v. Strickland , 479 F.3d 412 (6th Cir.2007)

[R. 139, 146, 154, 157, 212, 213, 231, 232];

• whether their claims survive the Supreme Court's decision in Baze v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) [R. 211, 212, 213, 220]; and

• whether their claims were rendered moot by subsequent revisions to Kentucky's lethal injection protocol following the Kentucky Supreme Court's decision in Bowling v. Kentucky Dept. of Corrections , 301 S.W.3d 478 (Ky.2009)

[R. 228, 230, 231, 232].

These matters have been thoroughly briefed and are ripe for decision.

Background

Plaintiff Brian Keith Moore is an inmate confined at the Kentucky State Penitentiary in Eddyville, Kentucky. In 1984, a Kentucky jury convicted Moore of the 1979 robbery, kidnapping, and murder of Virgil Harris, and subsequently sentenced Moore to death. The Kentucky Supreme Court affirmed the conviction and sentence, and the United States Supreme Court denied his petition for a writ of certiorari on March 26, 1990. Moore v. Commonwealth , 771 S.W.2d 34 (Ky.1988)

, cert. denied , 494 U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 774 (1990).

For his part, co-plaintiff Roger Dale Epperson was convicted in 1987 for the August 1985 robbery, burglary, and attempted murder of Dr. Roscoe Acker and the murder of ten-year-old Tammy Acker, and was sentenced to death for the murder. The Kentucky Supreme Court affirmed on direct appeal, and the United States Supreme Court denied his petition for a writ of certiorari on January 21, 1992. Epperson v. Commonwealth , 809 S.W.2d 835 (Ky.1990)

, cert. denied , 502 U.S. 1065, 112 S.Ct. 955, 117 L.Ed.2d 122 (1992). See Hodge v. Commonwealth , 68 S.W.3d 338 (Ky.2001) (Brief for Appellee, Epperson v. Commonwealth , 2000 WL 34332770, at *2 (Ky. May 25, 2000) ).

Epperson was also separately convicted and sentenced to death for the June 1985 robbery, burglary, and double murder of Edwin Morris and his wife Bessie Morris. After the original 1987 conviction was vacated, Epperson was retried and again convicted. The Kentucky Supreme Court affirmed on direct appeal, and the United States Supreme Court denied his petition for a writ of certiorari on March 19, 2007. Epperson v. Commonwealth , 197 S.W.3d 46 (Ky.2006)

, cert. denied , 549 U.S. 1290, 127 S.Ct. 1840, 167 L.Ed.2d 337 (2007).

After Epperson's conviction and Moore's first conviction became final, effective on March 31, 1998, Kentucky revised its criminal statutes to provide that a sentence of death shall be carried out by lethal injection. Ky. Rev. Stat. 431.220(a)

. Prisoners like Moore and Epperson who were sentenced to death before the effective date are permitted to choose death by electrocution if they file that election at least 20 days before their scheduled execution. Ky. Rev. Stat. 431.220(b). Because the statute did not specify what chemicals were to be used for the lethal injection or how the procedure was to be carried out, the Kentucky Department of Corrections ("KDOC") created an informal protocol addressing these matters. Bowling v. Kentucky Dept. of Corrections , 301 S.W.3d 478, 482 (Ky.2009). That protocol called first for the injection of three grams of sodium thiopental, then for fifty milligrams of pancuronium bromide, and finally for 240 milliequivalents of potassium chloride. Baze v. Rees , 553 U.S. 35, 45, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).

On April 19, 2006, Moore filed his complaint in this action pursuant to 42 U.S.C. § 1983

, contending that Kentucky's intended use of its lethal injection protocol to carry out his sentence of death would constitute cruel and unusual punishment in violation of the Eighth Amendment. Moore's complaint takes issue with numerous particulars of how the lethal injection would be administered, such as the identity, quantity, and order of administration for the three drugs involved in the protocol; the means for inserting an intravenous line; the adequacy of the experience and training of those who would administer the procedure; and the absence of life-saving equipment. Moore also contended that he possessed unique physical characteristics, including compromised veins from prior drug use and a heart attack

as well as obesity, which would render it more likely that following the lethal injection protocol would cause him excruciating pain. [R. 1]

Epperson filed a motion to intervene in this action on March 19, 2007, contending that his claims challenging Kentucky's lethal injection protocol shared a common legal and factual basis with Moore's. [R. 137] Epperson's complaint mimicked Moore's in most respects, but unlike Moore he did not contend that he had any medical conditions which would complicate the administration of the lethal injection protocol. [R. 142 at 3-5] Instead, Epperson's complaint contended only that the protocol—as written and as actually administered—would violate the Eighth Amendment. [R. 194] The Court granted Epperson's motion to intervene on October 1, 2007. [R. 192]

Several years before Moore or Epperson raised these issues in this Court, fellow death row inmates Thomas Clyde Bowling and Ralph Baze had done so in 2004. In August of that year—represented by the same counsel who represent Moore and Epperson in this case—they filed a complaint in the Circuit Court of Franklin County, Kentucky, which was essentially indistinguishable from those filed by the plaintiffs in this case. Baze and Bowling challenged the constitutionality of Kentucky's lethal injection protocol, the state's refusal to disclose the protocol, the use of a "cut-down" procedure to obtain venous access, and the alleged lack of training of execution team members. They also challenged the constitutionality of electrocution as a means of execution. [R. 111-2] Following discovery and a bench trial, the trial court in Baze v. Rees , No. 04-CI-1094 (Franklin Cir. Ct. 2004) upheld the constitutionality of electrocution and the lethal injection protocol in all pertinent respects. [R. 38-2]; Baze v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008)

( Joint Appendix, 2007 WL 4790797, at *754–769 (Nov. 5, 2007) ). The Kentucky Supreme Court affirmed on direct appeal, likewise holding that electrocution and Kentucky's lethal injection protocol did not conflict with the federal Constitution's prohibition against cruel and unusual punishment. Baze v. Rees , 217 S.W.3d 207 (2006).¹

The United States Supreme Court then granted Baze and Bowling's petition for a writ of certiorari , and squarely held that Kentucky's lethal injection protocol, the very same one at issue in Moore and Epperson's complaints and challenged on many of the same grounds, did not violate the Constitution. Baze v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008)

. In doing so, the Supreme Court rejected the claim that Kentucky's protocol violated the Eighth Amendment simply because it did not and could not eliminate all risk of pain or any chance that the protocol would not be precisely followed. Id . at 48–51, 128 S.Ct. 1520. The Court also specifically considered and rejected a variety of concerns proffered by the inmates, including but not limited to difficulties in properly inserting intravenous catheters and inadequate facilities and training. Baze , 553 U.S. at 54–55, 128 S.Ct. 1520.

Independent of their respective Eighth Amendment challenges, in 2006 Bowling, Baze, and Moore filed a separate state court action contending that Kentucky's lethal injection protocol was unenforceable because it was not adopted as an administrative regulation in conformity with Kentucky's Administrative Procedure Act. The Kentucky courts ultimately found that Bowling and Baze were precluded from asserting this claim because it was one they could and must have pursued in their first state court action. Bowling , 301 S.W.3d at 485

("The availability of a declaratory action does not, however, mean that multiple declaratory actions may be filed seriatim challenging implementation of the death penalty on selected grounds. When a capital defendant files a declaratory judgment action, he must join all claims then available to him with regard to the implementation of his judgment because res judicata will apply full force to bar successive declaratory judgment actions."). Moore, however, was not so barred, and the Kentucky Supreme Court concluded that the KDOC was required to promulgate its lethal injection protocol as an administrative regulation. Id . at 488–91.

Following public notice and hearings [R. 226], on May 7, 2010, the KDOC formally promulgated its lethal injection procedures and protocol in regulations set forth at 501 K.A.R. 16:001

-16:330. Comm. ex rel. Conway v. Shepherd , 336 S.W.3d 98 (Ky.2011). The initial version of the regulations retained the original three-drug protocol. Wilson v. Rees , 620 F.3d 699, 701 (6th Cir.2010) ("Here, the state merely adopted its preexisting protocol as a regulation, making no material changes to the method of execution."); see 2010 Ky. Reg. Text 209954 NS (June 1, 2010). But following additional litigation in the Franklin Circuit Court, KDOC further revised the regulations in 2012 and 2013. See 2012 Ky. Reg. Text 303221 NS (Dec....