Purkey v. Barr

CourtUnited States District Courts. United States District Court (Columbia)
Citation474 F.Supp.3d 1
Docket NumberCivil Action No. 1:19-cv-3570 (TSC)
Parties Wesley I. PURKEY, Plaintiff, v. William P. BARR, et al., Defendants.
Decision Date15 July 2020

474 F.Supp.3d 1

Wesley I. PURKEY, Plaintiff,
William P. BARR, et al., Defendants.

Civil Action No. 1:19-cv-3570 (TSC)

United States District Court, District of Columbia.

Signed July 15, 2020

474 F.Supp.3d 5

Brian J. Fleming, Charles FrancisBenedict McAleer, Jr., Miller & Chevalier, Chartered, Washington, DC, Rebecca Woodman, Pro Hac Vice, Rebecca E. Woodman, Attorney at Law L.C., Kansas City, MO, for Plaintiff.

John Benton Hurst, U.S. Attorney's Office, Kansas City, MO, for Defendants.


TANYA S. CHUTKAN, United States District Judge

Plaintiff Wesley Ira Purkey is 68 years old. As a child, he experienced repeated sexual abuse and molestation by those charged with caring for him. (ECF No. 1, Compl., ¶ 20.) As a young man, he suffered multiple traumatic brain injuries—first in 1968, when he was 16, and again in 1972 and 1976, when he was 20 and 24 respectively. (ECF No. 1-1, Agharkar Report, at 22.) At 14, he was first examined for possible brain damage, and at 18, he was diagnosed with schizophrenic reaction, schizoaffective disorder, and depression superimposed upon a pre-existing antisocial personality. (Id. at 5.) At 68, he suffers from progressive dementia, schizophrenia, complex-post traumatic stress disorder, and severe mental illness. (Compl., ¶¶ 14, 21, 24.)

Defendants plan to execute him today, July 15, 2020. (ECF No. 22.)

Purkey seeks to enjoin his execution on two grounds: that he is not currently competent to be executed under Ford v. Wainwright , 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) and the Eighth Amendment, and that Attorney General William Barr and Bureau of Prisons Director Michael Carvajal have not afforded him due process in connection with this Eighth Amendment claim. (See Compl., ¶¶ 109–119.) Defendants move to dismiss Plaintiff's claims for lack of subject matter jurisdiction1 and failure to state a claim. (ECF No. 18, Defs. Mot. to Dismiss.) In the alternative, Defendants move to transfer all claims that are not dismissed to the United States District Court for the Southern District of Indiana. (Id. , at 33–39.) For the reasons set forth below, the court will DENY Defendants’ Motion to Dismiss, GRANT Plaintiff's motion for a preliminary injunction, and ORDER Plaintiff to show cause why this case should not be transferred.

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Should the timing of this ruling be raised in subsequent litigation, the court notes that though Defendants have accused the court of "abusive delay," Barr v. Lee , No. 20A8 (July 14, 2020), App. for a Stay or Vacatur at 6–7, the court's sole responsibility is to endeavor to address, thoroughly and promptly, the claims of the four individuals whose execution dates were announced by the Government only one month before they were to occur. The speed with which the government seeks to carry out these executions, and the Supreme Court's prioritization of that pace over additional legal process, makes it considerably more likely that injunctions may issue at the last minute, despite the efforts of Plaintiffs’ counsel to raise, and the court to adjudicate, the claims in a timely fashion.


After a hiatus in federal executions of over fifteen years, on July 25, 2019, the U.S. Department of Justice (DOJ) announced plans to execute five inmates who had been sentenced to death under the federal death penalty statute. See Press Release, Dep't of Justice, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse (July 25, 2019), https://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearly-two-decade-lapse. To implement these executions, the Federal Bureau of Prisons (BOP) adopted a new execution protocol: the 2019 Protocol. See In re Fed. Bureau of Prisons’ Execution Protocol Cases , No. 19-mc-145 (D.D.C. November 13, 2019), ECF No. 39-1, at 1021–75.

On November 20, 2019, the court preliminarily enjoined the executions of four inmates: Alfred Bourgeois, Daniel Lewis Lee, Dustin Lee Honken, and Wesley Ira Purkey. See id. , ECF No. 50, at 15. The court found that these Plaintiffs had demonstrated a likelihood of success on the merits of their claims that the 2019 Protocol violates the Federal Death Penalty Act (FDPA), but the court did not rule on their other statutory and constitutional claims. Id. , at 13–14. In April of this year, a divided D.C. Circuit panel vacated the preliminary injunction. In re Fed. Bureau of Prisons’ Execution Protocol Cases , 955 F.3d 106, 113 (D.C. Cir. 2020), cert. denied sub nom. Bourgeois v. Barr , No. 19-1348, ––– U.S. ––––, 141 S.Ct. 180, 207 L.Ed.2d 1109, (June 29, 2020). The Court based its ruling solely on Plaintiffs’ FDPA and APA claims, and noted that "regardless of our disposition, several claims would remain open on remand." Execution Protocol Cases , 955 F.3d at 113 (per curiam).

On June 15, 2020, the DOJ and BOP scheduled a new execution date for Purkey—July 15, 2020. On July 2, 2020, the Seventh Circuit stayed Purkey's execution, and at the time of this filing, that stay remains in place. Purkey v. United States , No. 19-3318, 964 F.3d 603, (7th Cir. July 2, 2020). This court also preliminarily enjoined Purkey's execution, among others, on the grounds that the manner of execution violates the Eighth Amendment. See In re Fed. Bureau of Prisons’ Execution Protocol Cases , No. 19-mc-145, 471 F.Supp.3d 209, (D.D.C. July 13, 2020), ECF No. 136. The government sought a stay of the injunction at the D.C. Circuit, which was denied. See In re Fed. Bureau of Prisons’ Execution Protocol Cases , No. 20-5199 (D.C. Cir. July 13, 2020). Defendants simultaneously sought a stay of the injunction at the United States Supreme Court, which the Court granted, allowing Mr. Lee to be executed on July 14, 2020. See Barr v. Lee , No. 20A8, ––– U.S. ––––, 140 S.Ct. 2590, 207 L.Ed.2d 1044, (July 14, 2020) (per curiam). The Supreme Court held that Plaintiffs had "not established that they

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are likely to succeed on the merits of their Eighth Amendment claim." Id. at ––––, 140 S.Ct. at 2591–92, . Four Justices dissented. Id. at ––––, 140 S.Ct. at 2592–93,.


A. Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). The court does not assess the truth of what is asserted nor "whether a plaintiff has any evidence to back up what is in the complaint." Id. (citation omitted). "To survive a motion to dismiss, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level" and move plaintiff's claims "across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Facts that are "merely consistent" with a defendant's liability do not meet the plausibility standard. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted).

The court presumes the truth of a plaintiff's factual allegations, see Iqbal , 556 U.S. at 679, 129 S.Ct. 1937, and construes the complaint "in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged." Hettinga v. United States , 677 F.3d 471, 476 (D.C. Cir. 2012) (citing Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979).). This presumption does not apply, however, to a "legal conclusion couched as a factual allegation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; see Ralls Corp. v. Comm. on Foreign Inv. in U.S. , 758 F.3d 296, 315 (D.C. Cir. 2014) (the court "do[es] not accept as true ... the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.").

B. Preliminary Injunction

A preliminary injunction is an "extraordinary remedy" that is "never awarded as of right." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren , 553 U.S. 674, 689–90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ). Courts consider four factors on a motion for a preliminary injunction: (1) the likelihood of plaintiff's success on the merits, (2) the threat of irreparable harm to the plaintiff absent an injunction, (3) the balance of equities, and (4) the public interest. Id. at 20, 129 S.Ct. 365 (citations omitted); John Doe Co. v. Consumer Fin. Prot. Bureau , 849 F.3d 1129, 1131 (D.C. Cir. 2017). When the government is the opposing party, as is the case here, the third and fourth factors merge. See Nken v. Holder , 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

The D.C. Circuit has traditionally evaluated claims for injunctive relief on a sliding scale, such that "a strong showing on one factor could make up for a weaker showing on...

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