Morales v. Hickman

• Decision Date: 14 February 2006
• Docket Number: No. C 06-219 JF.,No. C 06-926 JF RS.,C 06-219 JF.,C 06-926 JF RS.
• Citation: 415 F.Supp.2d 1037
• Parties: Michael Angelo MORALES, Plaintiff, v. Roderick Q. HICKMAN, Secretary of the California Department of Corrections and Rehabilitation; Steven W. Ornoski, Acting Warden of San Quentin State Prison; and Does 1-50, Defendants.
• Court: U.S. District Court — Northern District of California

Page 1037

415 F.Supp.2d 1037

Michael Angelo MORALES, Plaintiff, v. Roderick Q. HICKMAN, Secretary of the California Department of Corrections and Rehabilitation; Steven W. Ornoski, Acting Warden of San Quentin State Prison; and Does 1-50, Defendants.

No. C 06-219 JF.

No. C 06-926 JF RS.

United States District Court, N.D. California, San Jose Division.

February 14, 2006.

David A. Senior, McBreen & Senior, Los Angeles, CA, John R. Grele, Law Office of John R. Grele, San Francisco, CA, Richard P. Steinken, Jenner & Block LLP, Chicago, IL, for Plaintiff.

Habeas Corpus Resource Center, San Francisco, CA, pro se.

California Appellate Project, San Francisco, CA, pro se.

ORDER DENYING CONDITIONALLY PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

[Docket No. 12]

FOGEL, District Judge.

Plaintiff Michael Angelo Morales is a condemned inmate at California's San Quentin State Prison. He is scheduled to be executed at 12:01 a.m. on February 21, 2006. The present action challenges the manner in which California's lethal-injection protocol is administered. In his amended complaint, Plaintiff contends that the way in which the protocol is carried out creates an undue risk of causing him excessive pain as he is being executed, thereby violating the Eighth Amendment's command that "cruel and unusual punishments [not be] inflicted." U.S. Const. amend. VIII.

Plaintiff seeks a preliminary injunction to stay his execution so that the Court may conduct a full evidentiary hearing to consider his claims. Defendants Roderick Q Hickman, Secretary of the California Department of Corrections and Rehabilitation, and Steven W. Ornoski, Acting Warden of San Quentin State Prison, oppose the motion. The Court has read the moving and responding papers and has considered the oral arguments of counsel presented on January 26 and February 9, 2006. The Court also has considered the parties' responses to its request for supplemental briefing dated February 13, 2006. The Court has jurisdiction pursuant to 42 U.S.C. § 1983 (2006). Beardslee v. Woodford, 395 F.3d 1064, 1069-70 (9th Cir. 2005). For the reasons set forth below, Plaintiff's motion will be denied, subject to certain conditions concerning the manner in which the execution is to be carried out.

I

The Eighth Amendment prohibits punishments that are "incompatible with the evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal quotation marks and citations omitted). Executions that "involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), or that "involve torture or a lingering death," In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890), are not permitted. When analyzing a particular method of execution or the implementation thereof, it is appropriate to focus "on the objective evidence of the pain involved." Fierro v. Gomez, 77 F.3d 301, 306 (9th Cir.1996) (citing Campbell v. Wood, 18 F.3d 662, 682 (9th Cir.1994)), vacated on other grounds, 519 U.S. 918, 117 S.Ct. 285, 136 L.Ed.2d 204 (1996). In this case, the Court must determine whether Plaintiff "is subject to an unnecessary risk of unconstitutional pain or suffering such that his execution by lethal injection under California's protocol must be restrained." Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir.2004).

In California, unless a condemned inmate affirmatively selects to be executed by lethal gas, executions are performed by lethal injection. Cal.Penal Code § 3604 (West 2006). Defendants have developed California's lethal-injection protocol¹ to implement this statutory directive. See id. at § 3604(a) (lethal injection to be administered "by standards established under the direction of the Department of Corrections").² The protocol calls for the injection of a sequence of three drugs into the person being executed: five grams of sodium thiopental, a barbiturate sedative, to induce unconsciousness; 50 or 100 milligrams of pancuronium bromide, a neuromuscular blocking agent, to induce paralysis; and 50 or 100 milliequivalents of potassium chloride, to induce cardiac arrest.³ Significantly, each drug is given in a dosage that is lethal in and of itself.

In his amended complaint, Plaintiff contends that these drugs are administered in such a way that there is an undue risk that he will be conscious when the pancuronium bromide and the potassium chloride are injected. Defendants agree with Plaintiff that a person injected with either of these two drugs while conscious would experience excruciating pain; however, they assert that the dosage of sodium thiopental is more than sufficient to insure that Plaintiff will be unconscious prior to their administration.

A significant number of media reports have described this action as an attack on the constitutionality of lethal injection. See, e.g., Lethal Injection of Murderer-Rapist Could Be Blocked, San Diego Union-Trib., Feb. 10, 2006, at A4 ("A federal judge said yesterday that he might block a murderer and rapist's Feb. [sic] 21 execution to provide enough time to determine whether lethal injection is cruel and unusual punishment."). As is apparent from the foregoing discussion, these reports are in error. Rather, the discrete issues in the present action are whether or not there is a reasonable possibility that Plaintiff will be conscious when he is injected with pancuronium bromide or potassium chloride, and, if so, how the risk of such an occurrence may be avoided.

II

The United States Court of Appeals for the Ninth Circuit has explained that a condemned inmate seeking a stay of execution is

required to demonstrate (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to the plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases). Alternatively, injunctive relief could be granted if he demonstrated either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor. These two alternatives represent extremes of a single continuum, rather than two separate tests. Thus, the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be established by the party. In cases where the public interest is involved, the district court must also examine whether the public interest favors the plaintiff. [¶] In capital cases, the Supreme Court has instructed that equity must take into consideration the State's strong interest in proceeding with its judgment.

Beardslee, 395 F.3d at 1067-68 (internal quotation marks, citations, brackets and emphasis omitted). As the United States Supreme Court has adjured,

before granting a stay [of execution], a district court must consider not only the likelihood of success on the merits and the relative harm to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.

Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) (citations omitted).

III

Two years ago, condemned inmate Kevin Cooper faced imminent execution at San Quentin. Eight days before he was scheduled to be executed, Cooper filed an action in which he challenged California's lethal-injection protocol on Eighth Amendment grounds. This Court declined to stay the execution, finding that Cooper had delayed unduly in asserting his claims and that he had done no more than raise the possibility that he might suffer unnecessary pain if errors were made in the course of his execution. Cooper v. Rimmer, No. C 04 436 JF, 2004 WL 231325 (N.D.Cal. Feb.6, 2004). The Ninth Circuit affirmed for the same reasons. Cooper, 379 F.3d 1029.⁴

Just over one year ago, another inmate under sentence of death, Donald J. Beardslee, filed an action in this Court challenging the lethal-injection protocol shortly after the San Mateo Superior Court set his execution date. Beardslee contended that the protocol violated both his First Amendment right to freedom of speech and his Eighth Amendment right not to be subjected to cruel and unusual punishment. While this Court recognized that Beardslee had been more diligent than Cooper in that he filed his action thirty days before his scheduled execution and had exhausted his administrative remedies prior to filing, it nonetheless concluded that Beardslee also had delayed unduly in asserting his claims. On the merits, the Court concluded, "Based upon the present record, a finding that there is a reasonable possibility that ... errors will occur [during Beardslee's execution] would not be supported by the evidence. [Beardslee's] action thus is materially indistinguishable from Cooper." Beardslee v. Woodford, No. C 04 5381 JF, 2005 WL 40073 (N.D.Cal. Jan.7, 2005).

The Ninth Circuit disagreed with this Court's determination that Beardslee's action was untimely. Beardslee, 395 F.3d at 1069-70. The appellate court noted that "the precise execution protocol is subject to alteration until the time of execution" and it found that "by regulation the California Department of Corrections does not permit challenges to anticipated actions."⁵ Id. at 1069. Beardslee thus suggests that in California, a condemned inmate's challenge to the lethal-injection protocol may not become ripe for judicial review until the inmate's execution is imminent. See id. at 1069 n. 5; but cf: id. at 1069-70 n. 6 ("we have not resolved the question of when challenges...