Oken v. Sizer, CIV. PJM 04-1830.

• Decision Date: 14 June 2004
• Docket Number: No. CIV. PJM 04-1830.,CIV. PJM 04-1830.
• Citation: 321 F.Supp.2d 658
• Parties: Steven Howard OKEN, Plaintiff v. Frank C. SIZER, Jr., Commissioner, Maryland Division of Correction, et al., Defendants
• Court: U.S. District Court — District of Maryland

321 F.Supp.2d 658

Steven Howard OKEN, Plaintiff v. Frank C. SIZER, Jr., Commissioner, Maryland Division of Correction, et al., Defendants

No. CIV. PJM 04-1830.

United States District Court, D. Maryland.

June 14, 2004.

Fred Warren Bennett, Michael Edward Lawlor, Bennett and Lawlor LLP, Greenbelt, MD, David M. Barron, Law Office of David M. Barron, Columbia, SC, Jerome Howard Nickerson, Jr., Law Office of Jerome H. Nickerson, Baltimore, MD, for Plaintiff.

David P. Kennedy, Ann N. Bosse, Scott S. Oakley, Office of the Attorney General, Baltimore, MD, for Defendants.

OPINION

MESSITTE, District Judge.

I. Introduction

In 1987, Steven Howard Oken murdered Dawn Marie Garvin in merciless fashion, shattering the lives of her family and friends forever. The suffering that this young woman underwent, that her family and friends have undergone since, is unimaginable.

Since his conviction of this crime and his sentence of death in 1991, in an effort to undo his conviction, Oken has pursued appeals, post-conviction proceedings, at least one federal habeas corpus proceeding (handled by this member of the Court), and yet further appeals, including to the U.S. Supreme Court. His guilt and conviction are now definitively established and he has exhausted all avenues of possible modification.

Oken comes before this Court in a different type of proceeding, a civil action in which he alleges a violation of his constitutional rights by reason of the manner in which his execution by lethal injection, scheduled to take place this week, will occur. Abandoning a number of other issues raised in his Complaint to this Court, Oken poses a single issue:

Whether Maryland's Execution Protocol, allegedly designed to prevent the barbiturate from leaking all over the death chamber floor, as occurred during the last lethal injection administered in the State, establishes an Eighth Amendment violation in that an unreasonable risk exists that Oken's executioners lack the requisite proficiency in establishing and maintaining an IV line capable of introducing all the barbiturate necessary to successfully produce his unconsciousness and that his executioners are deliberately indifferent to this critical requirement.

There is a subset of this issue, however, which pertains to the Execution Protocol that the State of Maryland intends to follow in carrying out his death sentence. Oken claims that the State unreasonably delayed in providing him just 3 days ago with a copy of its current Execution Protocol, which was amended as recently as May 26, 2004 (indeed, that Defendants have failed to furnish a copy of the full Protocol, some 16 pages having been omitted), and that he has therefore had insufficient time to review it with his counsel and medical expert.

Defendants, all corrections officials of the State of Maryland,¹ deny the validity of Oken's constitutional claim on the merits and raise several procedural defenses, among them:

• That this is not a proper § 1983 claim, but rather a successive habeas corpus claim, which is precluded without special leave of court;

• That the proceeding is barred by reason of the doctrine of res judicata;

• That with regard to the Execution Protocol, Oken's request for its production was untimely;

• That the State's recent production of the Amended Execution Protocol was not prejudicial to Oken because it made no substantive changes in the earlier protocol as to which Oken had ample notice.

The Court heard oral argument this afternoon and advised the parties that it would make no ruling on the merits of the claim, but would confine its consideration to the Motion for Stay. Accordingly, at this juncture only these issues need to be decided:

1) Is Oken's claim properly a § 1983 claim as opposed to a disguised successive habeas corpus petition?

2) Is the claim barred by res judicata?

3) Was Oken's request for the Execution Protocol untimely?

4) Was Oken prejudiced by the State's recent delivery of the Execution Protocol amended as of May 26, 2004?

II. Procedural History

On January 29, 2003, the Circuit Court for Baltimore County denied Oken's motion to correct an illegal sentence in which he argued that Maryland's death penalty statute is unconstitutional because it imposes an improper burden of proof. Oken v. State, 378 Md. 179, 835 A.2d 1105 (2003). Oken appealed and on November 17, 2003, the Court of Appeals of Maryland denied relief. On December 15, the Court of Appeals denied Oken's Motion for Reconsideration. On April 26, 2004, the U.S. Supreme Court denied his Petition for Writ of Certiorari. Oken v. Maryland, ___ U.S. ___, 124 S.Ct. 2084, 158 L.Ed.2d 632 (2004). That same day, Judge John Grason Turnbull, II of the Circuit Court for Baltimore County signed a warrant for Oken's execution, directing that execution by lethal injection take place during a five-day period beginning today, June 14, 2004.

By letter to an Assistant Attorney General of Maryland, dated May 10, Oken's counsel sought production, inter alia, under the Maryland Public Information Act (MPIA), Md.Code Ann., State Gov't., § 10-611 et seq., of the Execution Protocol that would be followed in his case. On May 12, the State responded, advising Oken's counsel that they would receive a response "within the reasonable period required by the Act."

On May 14, Oken filed a motion for appropriate relief in the Circuit Court for Baltimore County in which he asked the court to vacate the Warrant of Execution, alleging that the lethal injection process to be used in his case did not comport with the language of Section 3-905 of the Correctional Services Article of the Maryland Code.² Three days later, Oken filed a civil action in the Circuit Court for Baltimore City seeking temporary and permanent injunctive relief that would bar the State of Maryland from carrying out the execution as scheduled and a declaratory judgment that the Division of Correction's method of carrying out a lethal injection execution was unconstitutional and violative of Maryland statutory law.

Following a hearing on May 25, Judge Marcella A. Holland of the Circuit Court for Baltimore City ordered that Oken's civil action in the Circuit Court for Baltimore City be transferred to the Circuit Court for Baltimore County. On June 2, Judge Turnbull denied Oken's Motion for Appropriate Relief in his original Baltimore County case, and in the case transferred from Baltimore City, granted Defendants' Motion for Summary Judgment, necessarily denying Oken's request for stay of execution pending discovery. On June 7, Oken's appeal from that order was argued in the Maryland Court of Appeals. By per curiam order dated June 9, the Court of Appeals affirmed Judge Turnbull's decision in all respects. On Friday, June 11, Oken's counsel for the first time received a copy of the Execution Protocol that had been amended on May 26. Today, Monday, June 14, the present action in Federal Court was filed.

III. § 1983 vs. Habeas Corpus Proceeding

The Court will not labor over this issue. It views the Supreme Court's recent decision in Nelson v. Campbell, ___ U.S. ___, 124 S.Ct. 2117, ___ L.Ed.2d ___ (May 24, 2004) as dispositive. In Nelson, an Alabama inmate facing death by lethal injection brought a § 1983 action, claiming that the "cut-down" procedure that would be used to access his veins was cruel and unusual within the terms of the Eighth Amendment.³ The state opposed the suit principally on the grounds that it challenged the fact of the inmate's sentence, hence it could only be brought as a habeas corpus claim, which, without leave of court, would be barred as successive. The Supreme Court disagreed, noting that Nelson had been careful not to challenge lethal injection as a method of execution in general, but only "as applied" to him, i.e. through use of the cut-down procedure. The Court acknowledged (and the State of Alabama conceded) that, had the cut-down procedure been used in a non-death setting involving a prisoner, the Eighth Amendment would clearly have applied. "We see no reason on the face of the complaint," said the Court, "to treat petitioner's claim differently solely because he has been condemned to die." 124 S.Ct. at 2123. In effect, the Court viewed the challenge to the cut-down procedure as a challenge to a condition of confinement, well within the province of a § 1983 action, as opposed to a challenge to the fact or duration of his sentence, which could only be raised by habeas.

This Court views a challenge to the manner of administration of an IV in a death setting as little different from its administration in a non-death setting. Both instances involve inserting an IV into the individual, infusing chemicals, monitoring vital signs, and making appropriate adjustments as circumstances may require. The procedures relate to each other in much the same fashion as a cut-down procedure in a non-death setting relates to such a procedure in a death setting.

Accordingly, the Court understands Oken's challenge to be to a condition of his confinement, not to the fact of his conviction. As such, it qualifies as a § 1983 action.

IV. Res Judicata

Defendants argue that res judicata bars this action since Oken asserted the deficiencies of the Execution Protocol in the State court action he filed in May, which resulted in summary judgment in favor of Defendants on that and all other issues.

Defendants invite the Court's attention to familiar legal authority. Thus, they say, the preclusive effect given by a federal court to a prior state court judgment is to be determined by the law of the state. E.g., Migra v. Warren City Sch. Dist. Bd. of Ed., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Under Maryland law, a prior court decision between the same parties has full preclusive effect with respect to claims that were brought, or could have been brought, in the earlier action. See Colandrea v. Wilde Lake Comm. Ass'n, 361 Md. 371, 392, 761 A.2d 899, 910 (2000) ("[A...