Morales v. Hickman, 06-99002.

• Decision Date: 19 February 2006
• Docket Number: No. 06-99002.,06-99002.
• Citation: 438 F.3d 926
• Parties: Michael Angelo MORALES, Plaintiff-Appellant, v. Roderick Q. HICKMAN, Warden, Secretary of the California Department of Corrections; Steven W. Ornoski, Acting Warden, for the California State Prison at San Quentin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

438 F.3d 926

Michael Angelo MORALES, Plaintiff-Appellant, v. Roderick Q. HICKMAN, Warden, Secretary of the California Department of Corrections; Steven W. Ornoski, Acting Warden, for the California State Prison at San Quentin, Defendants-Appellees.

No. 06-99002.

United States Court of Appeals, Ninth Circuit.

February 19, 2006.

David A. Senior, McBreen & Senior, Los Angeles, California, for the plaintiff-appellant.

Dane R. Gillette, Senior Assistant Attorney General, San Francisco, California, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California, Jeremy Fogel, District Judge, Presiding.

D.C. Nos. CV-06-00926-JF, CV-06-00219-JF.

Before KLEINFELD, McKEOWN and FISHER, Circuit Judges.

PER CURIAM.

Michael Angelo Morales ("Morales") is a California death row inmate scheduled to be executed by lethal injection on February 21, 2006 at 12:01 a.m. He brought a 42 U.S.C. § 1983 action in the United States District Court seeking to enjoin the State from executing him by lethal injection under the procedures set forth in San Quentin Operational Procedure No. 770 ("Protocol No. 770"). Specifically, Morales contended that a combination of circumstances, including the specific drugs chosen, the procedure by which the drugs are administered and the absence of medically trained personnel overseeing the execution, creates a foreseeable and undue risk that he will experience unnecessary and wanton pain constituting cruel and unusual punishment under the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (holding that the Eighth Amendment prohibits punishments that "involve the unnecessary and wanton infliction of pain.").

After reviewing evidence Morales presented regarding the circumstances of the 13 lethal injection executions California has carried out to date under Protocol No. 770, the district court found that Morales "raised . . . substantial questions" about the implementation of Protocol No. 770, District Court Order of Feb. 14 at 12 ("Order 1"), including whether the State's administration of Protocol No. 770 "creates an undue risk that [Morales] will suffer excessive pain when he is executed," Order 1 at 13, and "whether a person rendered unconscious by sodium thiopental might regain consciousness during administration of pancuronium bromide or potassium chloride." Order 1 at 14. Responding to these concerns, and applying the standard for a stay of execution we articulated in Beardslee v. Woodford, 395 F.3d 1064, 1067-68 (9th Cir.2005),¹ the district court conditioned its denial of Morales' request for a stay of execution on the State's compliance with certain amendments to Protocol No. 770. The court proposed two alternative conditions to address the risk of an unconstitutionally cruel and painful execution.² The State agreed to comply with the court's second alternative condition — having a qualified anesthesiologist present to ensure that Morales is indeed unconscious during the second and third stages of the lethal injection process — and the court issued a final order permitting the execution to proceed as scheduled. Morales now appeals the court's two orders (which we will refer to collectively as the "Orders"). We review for an abuse of discretion, Beardslee, 395 F.3d at 1068, and affirm subject to the interpretation of the Orders as set forth in this opinion.

I.

Morales was tried for the rape and murder of Terri Winchell, a seventeen-year old girl. A jury convicted Morales of murder, found special circumstances and sentenced him to death. After the California Supreme Court affirmed his conviction, and the United States Supreme Court denied certiorari, Morales' conviction became final in 1989. Morales unsuccessfully sought habeas review in both the federal district court and this court. The Supreme Court again denied certiorari after we refused to grant Morales habeas relief. See generally Morales v. Woodford, 388 F.3d 1159, 1163-1167 (9th Cir.2004), cert. denied, ___ U.S. ___, 126 S.Ct. 420, 163 L.Ed.2d 320 (2005) (describing in detail the crime, the trial and the case's procedural history). In addition to his § 1983 claim, Morales again seeks post-conviction relief through an application to file a second or successive habeas petition. See 28 U.S.C. § 2244(b). We address that application in a separate order. See Morales v. Hickman, 2006 WL 391604 (9th Cir.2006). Here we address only Morales' § 1983 appeal.

II.

To understand the basis of Morales' claim, we must first describe in some detail the actual implementation of Protocol No. 770, both in its original form and as modified by the district court. After the condemned is placed in the execution chamber, "[a] person qualified ... or otherwise authorized by law" inserts two intravenous lines into the inmate's veins.³ After saline begins flowing through one of the IV lines, all "injection team members vacate the chamber," seal the door and leave the condemned alone in the room. At this point, the warden orally commands the commencement of the execution. The injection team members, positioned outside the execution chamber, begin administering the lethal drug cocktail through the extended IV lines.

First, the condemned receives five grams of sodium thiopental (also known as sodium pentothal), which, if administered properly, will render him unconscious and therefore insensible to pain.⁴ Next, the injection team administers 100 milligrams of pancuronium bromide (also known as Pavulon), paralyzing the inmate's voluntary muscles. Finally, 100 milligrams of potassium chloride are injected, resulting in cardiac arrest and death.⁵ A physician is on hand to pronounce the time of death.

There is no dispute that in the absence of a properly administered anesthetic, Morales would experience the sensation of suffocation as a result of the pancuronium bromide and excruciating pain from the potassium chloride activating nerve endings in Morales' veins. See Order 1 at 3; see also Beardslee, 395 F.3d at 1071, 1074. Both parties further agree that if the sodium thiopental is properly administered, virtually all persons would be unconscious within 60 seconds and would not experience these sensations. Order 1 at 8.

Before the district court, Morales challenged the assumption that the sodium thiopental will be properly administered. He claimed that there exists a very real and foreseeable risk that he will be conscious and fully experience the effects of the second two drugs. Among his contentions are that (1) the sodium thiopental will not have its desired effect because it is being administered and monitored by unqualified individuals; (2) the paralytic drug will prevent him from communicating his conscious state and distress; (3) no officials remain in the execution room to ensure that he is indeed unconscious and remains so until death; and (4) Protocol No. 770 does not adequately account for other foreseeable contingencies that could produce unnecessary suffering.

The district court's February 14 order found that Morales "raised ... substantial questions" about Protocol No. 770, as implemented. Order 1 at 12. Relying on a detailed review of California's execution logs that suggest "that the inmates' breathing may not have ceased as expected in at least six out of 13 executions by lethal injection," the court found that there exists "at least some doubt as to whether the protocol actually is functioning as intended." Order 1 at 11. The district court accepted the State's expert testimony that, when properly administered, the five gram dose of sodium thiopental "should both stop breathing and cause unconsciousness within a minute." Order 1 at 11. Nonetheless, it concluded that "evidence from eyewitnesses tending to show that many inmates continue to breathe long after they should have ceased to do so cannot simply be disregarded on its face." Order 1 at 11. These findings of fact led the district court to impose its two alternate conditions on Protocol No. 770 to preserve what the district court characterized as Morales' "constitutional right not to be subject to an undue risk of extreme pain." Order 1 at 12.

Upon the State's acceptance of the anesthesiologist option, the district court in its February 16, 2006 final order modified Protocol No. 770 to ensure the presence of a medically qualified anesthesiologist during the execution procedure. (The State has agreed to have two anesthesiologists on hand, one inside the execution chamber and one in reserve.) In all other respects, Protocol No. 770 remains unchanged. District Court Order of Feb. 16 at 4 n. 3, ("Order 2") (citing Slavin declaration).

III.

The issue presented in this case is a narrow one. Morales does not challenge the constitutionality of the death penalty in general nor even the constitutionality of lethal injections in particular. His only claim is that Protocol No. 770 as currently implemented in California, and as modified by the district court, violates the Eighth and Fourteenth Amendments. However, we need not decide this broad issue, but need only determine whether the district court's modification of Protocol No. 770 was an abuse of discretion in light of the court's findings of fact.⁶

"The district court abuses its discretion when its equitable decision is based on an error of law or a clearly erroneous factual finding." United States v. Washington, 157 F.3d 630, 642 (9th Cir.1998). "An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found." Int'l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993) (internal quotations and citation omitted).

Challenges to Protocol No. 770 have recently come before us, and in both cases we rejected the inmates' assertions that the district court abused its discretion in upholding the...