Pizzuto v. Tewalt
| Docket Number | 1:23-cv-00081-BLW |
| Decision Date | 01 August 2023 |
| Parties | GERALD ROSS PIZZUTO, JR., Plaintiff, v. JOSH TEWALT, Director, Idaho Department of Correction, in his official capacity, TIMOTHY RICHARDSON, Warden, Idaho Maximum Security Institution, in his official capacity, RAUL LABRADOR, Attorney General, Idaho Attorney General's Office, in his official capacity, Defendants. |
| Court | U.S. District Court — District of Idaho |
Before the Court is Defendants' Motion to Dismiss (Dkt 20).[1] For the reasons explained below, the Court will partially grant and partially deny the motion.[2]
BACKGROUND[3]
Plaintiff Gerald Ross Pizzuto, Jr. is a death-row inmate being held at the Idaho Maximum Security Institution (IMSI). He was convicted on two charges of first-degree murder and given two death sentences in 1986. In the years since, he has pursued direct appeals and collateral attacks in state and federal court, challenging his convictions and sentences. In each case, the State of Idaho has successfully defended against Pizzuto's legal challenges. Now, thirty-seven years after Pizzuto's death sentences were imposed, the State seeks to execute him.
On May 6, 2021, the Idaho Attorney General sought and obtained a death warrant in state court setting Pizzuto's execution for June 2, 2021. Compl. ¶ 27, Dkt. 1. Pursuant to Idaho Code § 19-2705(3), when the warrant issued, the IMSI Warden moved Pizzuto from his cell in J-Block to solitary confinement in the Execution Unit, located in a separate building. Id. He was kept there in complete isolation from the other inmates and, in accordance with the Idaho Department of Correction's (IDOC's) Standard Operating Procedure 135, IDAPA 135.02.01.001, was asked to select witnesses for his execution and indicate his wishes for disposition of his property and remains. Id. ¶ 28.
Fifteen days before the scheduled execution, the Commission of Pardons and Parole (the “Commission”) notified the Attorney General that it would conduct a commutation hearing for Pizzuto in the fall. Id. ¶ 29. That same day, the Second Judicial District Court of Idaho entered an order staying Pizzuto's execution until the Commission could conclude its commutation proceedings. Id. On December 30, 2021, the Commission voted to recommend reducing Pizzuto's sentences to life in prison without the possibility of parole. Id. ¶ 31. But Governor Brad Little promptly rejected that recommendation. Id. ¶ 32.
Three months later, on November 16, 2022, the Attorney General obtained a second death warrant, this time setting Pizzuto's execution for December 15, 2022. Id. ¶ 33. Once again, Pizzuto was moved to the isolated Execution Unit to await execution and was asked to identify execution witnesses and direct the disposition of his property and remains. Id. ¶ 35. That same day however, Director Tewalt informed the Attorney General that IDOC “was not in possession of the chemicals necessary to carry out an execution by lethal injection.” Id. ¶ 34.
On November 30, 2022, fifteen days before the second scheduled execution, Director Tewalt confirmed that IDOC would not be able to obtain execution chemicals in time, id. ¶ 36, and the Attorney General notified the Court that “[e]xecution preparation by IDOC will cease and the death warrant will be allowed to expire.” Id. ¶ 37. The death warrant expired on December 15, 2022, and Pizzuto was moved out of isolation one day later. Id. ¶ 38.
On February 24, 2023, Defendant Labrador, now Idaho's Attorney General, obtained a third death warrant, scheduling Pizzuto's execution for March 23, 2023. Id. ¶ 43. Contemporaneously, Defendant Labrador publicly acknowledged that IDOC still did not have the chemicals needed to carry out the lethal injection, id. ¶ 43, but he noted that IDOC was “working hard to acquire the chemicals necessary to fulfill this death warrant.” Id.
Pizzuto filed this Section 1983 action in forma pauperis on February 24, 2023, claiming that Defendants have violated and will continue to violate his Eighth and Fourteenth Amendment rights by repeatedly rescheduling his execution despite knowing they cannot carry it out. See generally Compl., Dkt. 1. The Court granted Pizzuto's application to proceed in forma pauperis and ordered expedited briefing to assist the Court in performing the initial screening required under 28 U.S.C. § 1915(e). Dkt. 8. The following day, Pizzuto filed a Motion for Preliminary Injunction (Dkt. 10) and the Court ordered Defendants to respond by the deadline previously set for expedited briefing on the initial screening. Dkt. 12.
On March 9, 2023, this Court issued an order in a related habeas case, Pizzuto v. Richardson, staying Pizzuto's execution until his petition for writ of habeas corpus can be adjudicated.
Case No. 1:22-cv-00452-BLW, Order Granting App. For Stay of Exec., Dkt. 19.[4] Due to the stay, the Court vacated its previous order in this case for expedited briefing on the initial screening and motion for preliminary injunction, explaining that new briefing deadlines would be set in a separate order. Dkt. 14. At Defendants' request, the Court allowed them until April 14, 2023, to either brief the initial screening or file a motion to dismiss. Dkt. 18. Defendants chose the latter, filing a Motion to Dismiss for Failure to State a Claim (Dkt. 20) on April 14, 2023. Pizzuto responded on May 19, 2023, and Defendants' time to reply expired fourteen days later. Dkt. 25.
Defendants' Motion to Dismiss (Dkt. 20) is now fully briefed and ready for a decision.
To survive dismissal under Federal Rule of Civil Procedure 12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In making that determination, a court must accept as true all factual allegations in the complaint and construe them in the light most favorable to the plaintiff. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).[5]
Pizzuto claims that Defendants violate his Eighth and Fourteenth Amendment rights by repeatedly obtaining death warrants and taking preparatory steps toward execution when they lack the “ability to actually carry out the intended execution.” Compl. ¶¶ 46-60, Dkt. 1. Pizzuto's Eighth Amendment claim is plausible, but he has not exhausted his administrative remedies as to Defendant Tewalt and Defendant Richardson. Conversely, Pizzuto's Fourteenth Amendment claim is not plausible as to any of the Defendants.
The Court will therefore grant Defendants' Motion, in part dismissing the Eighth Amendment claims against Defendant Tewalt and Defendant Richardson, and dismissing the Fourteenth Amendment claims altogether. In all other respects, the Motion will be denied.
The Eighth Amendment to the United States Constitution prohibits “cruel and unusual punishment.” U.S. CONST. AMEND. VIII; see also Robinson v. California, 370 U.S. 660, 666 (1962) (). While the death penalty is not itself unconstitutional, Gregg v. Georgia, 428 U.S. 153, 187 (1976), a particular method of execution will violate the Eighth Amendment if it “intensifie[s] the sentence of death with a (cruel) superadd[ition] of terror, pain, or discrace.” Bucklew v. Precythe, 139 S.Ct. 1112, 1124 (2019). To challenge a state's method of execution, “a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.” Id. at 1125 (citing Glossip v. Gross, 576 U.S. 863, 868-69 (2015)); see also Baze v. Rees, 553 U.S. 35, 52 (2008). In other words, a prisoner must show that the state's method unnecessarily intensifies the severity of pain otherwise inherent in a death sentence.
Pizzuto claims that Defendants inflict cruel and unusual punishment by repeatedly re-scheduling his execution despite knowing that they cannot carry it out. Compl. ¶¶ 53, 58, Dkt 1. With each new death warrant, Pizzuto explains, he must repeat the preparatory steps of designating who will witness his execution and to whom his property and remains will be left. Id. ¶ 27. Additionally, each time a new death warrant issues, he is moved from his cell block to the Execution Unit located “in a separate building that provides for complete isolation . . . from other inmates.” Id.
Pizzuto claims that Defendants' “series of abortive attempts” at execution amounts to “psychological torture,” id. ¶¶ 49, 58, and he reports suffering “intense psychological symptoms” as a result, such as losing track of time, losing sleep, dissociating from reality, and experiencing mental anguish and torment. Id. ¶¶ 39, 40, 49. Without a court order, he alleges, the State will “continue to seek and reseek death warrants . . . whether or not [it] has the necessary lethal injection chemicals, until [he] dies of natural causes or is executed.” Id. ¶ 44. In short, he will be dragged to the “precipice” of death and forced to re-live the terror of his impending execution over and over again, for the rest of his life. Id. ¶ 53.
Defendants ask the Court to dismiss Pizzuto's Eighth Amendment claim for several reasons. First and foremost, they contend that “any anxiety, uncertainty, or other mental health symptoms” that Pizzuto has allegedly experienced “do not rise to the level of a Constitutional deprivation.” Def.'s Memo. in Supp. at 10 Dkt. 201. Rather, those psychological conditions are simply “attendant to the...
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