Roane v. Holder, Civil Action No. 05-2337 (RWR).

• Decision Date: 20 April 2009
• Docket Number: Civil Action No. 05-2337 (RWR).
• Citation: 607 F.Supp.2d 216
• Parties: James ROANE, Jr., et al., Plaintiffs, v. Eric H. HOLDER, Jr., et al., Defendants.
• Court: U.S. District Court — District of Columbia

607 F.Supp.2d 216

James ROANE, Jr., et al., Plaintiffs, v. Eric H. HOLDER, Jr., et al., Defendants.

Civil Action No. 05-2337 (RWR).

United States District Court, District of Columbia.

April 20, 2009.

COPYRIGHT MATERIAL OMITTED

Joshua Christopher Toll, King & Spalding, LLP, Graham E. Eddy, Vinson & Elkins, L.L.P., Paul F. Enzinna, Jeremy I. Levin, Rachel M. McKenzie, Baker Botts LLP, Charles Anthony Zdebski, Troutman Sanders LLP, Telecommunications & Technology, Washington, DC, for Plaintiffs.

Peter S. Smith, Beverly Maria Russell, John F. Henault, Jr., Kenneth Adebonojo, Madelyn E. Johnson, U.S. Attorney's Office, Paul F. Enzinna, Baker Botts, LLP, Robert J. Erickson, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Six death row inmates facing execution by lethal injection bring this action against the Attorney General and other Justice Department officials¹ in their official and individual capacities alleging various constitutional and statutory violations caused by the federal government's adoption and intended use of a lethal injection protocol that allegedly exposes the inmates to a substantial risk of severe pain. The defendants have renewed their motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Because the defendants' asserted statute of limitations defense raises a genuine factual dispute that precludes summary judgment, the defendants' renewed motion for judgment on the pleadings will be denied in part. The defendants have also renewed their motion to dismiss under Rules 12(b)(1) and 12(b)(6). Because the plaintiffs do not oppose dismissal of all individual capacity claims, the defendants' motion to dismiss all individual capacity claims will be granted. In addition, because the plaintiffs do not seek to challenge 28 C.F.R. § 26.3, the defendants' motion to dismiss Count IV to the extent it challenges this regulation will be denied as moot. Because Count V challenges the defendants' general policy to not apply certain Controlled Substances Act ("CSA") provisions against individuals who participate in federal lethal injections or against the federal government's lethal injection protocol itself, but does not challenge any individual decision not to prosecute an alleged CSA violation, the defendants' motion to dismiss to Count V of the amended complaint will be denied. The defendants' motion to dismiss all official capacity claims against defendant Thomas Webster, M.D., a penitentiary Clinic Director, will be granted because Dr. Webster has exercised his right under 18 U.S.C. § 3597(b) and 28 C.F.R. § 26.5 not to participate in federal executions.

BACKGROUND

Plaintiffs James Roane, Jr., Cory Johnson, and Richard Tipton were each tried and convicted on multiple charges and "each was sentenced to death on one or more of the capital murder charges on which he was convicted." United States v. Tipton, 90 F.3d 861, 868 (4th Cir.1996). Their convictions became final on direct appeal when the Supreme Court denied certiorari for each on June 2, 1997. Roane v. United States, Johnson v. United States, Tipton v. United States, 520 U.S. 1253, 117 S.Ct. 2414, 138 L.Ed.2d 179 (1997). Plaintiff Orlando Hall was convicted of kidnaping resulting in death and other crimes and sentenced to death in 1995. United States v. Hall, 152 F.3d 381, 390 (5th Cir.1998). His conviction became final on May 17, 1999. Hall v. United States, 526 U.S. 1117, 119 S.Ct. 1767, 143 L.Ed.2d 797 (1999) (denying petition for certiorari). Plaintiff Bruce Webster was convicted of kidnaping resulting in death and other crimes and sentenced to death in 1996. United States v. Webster, 162 F.3d 308, 317, 319-20 (5th Cir.1998). His conviction became final on October 4, 1999. Webster v. United States, 528 U.S. 829, 120 S.Ct. 83, 145 L.Ed.2d 70 (1999) (denying petition for certiorari). Plaintiff Anthony Battle was convicted of murdering a federal correctional officer and sentenced to death in 1997. United States v. Battle, 173 F.3d 1343, 1345 (11th Cir.1999). His conviction became final on March 20, 2000. Battle v. United States, 529 U.S. 1022, 120 S.Ct. 1428, 146 L.Ed.2d 318 (2000) (denying petition for certiorari). Each plaintiff also has sought unsuccessfully to challenge his death sentence through collateral review. At present, each plaintiff is to be executed in the manner prescribed by the federal government's lethal injection protocol.

Plaintiffs Roane, Tipton, and Johnson filed this action on December 6, 2005 against the Attorney General, the Administrator of the Drug Enforcement Administration ("DEA"), Director of the Federal Bureau of Prisons Harley G. Lappin, Medical Director of the Health Services Division of the Federal Bureau of Prisons Newton E. Kendig, M.D., Warden of the United States Penitentiary Terre Haute ("Terre Haute") Mark Bezy, and Clinical Director at Terre Haute Thomas Webster, M.D. Bruce Webster, Battle, and Hall intervened as plaintiffs in 2007. The plaintiffs' executions were stayed by consent of all parties. The plaintiffs' amended complaint alleges five claims. The plaintiffs' first claim alleges that they have been denied due process under the Fifth Amendment because the defendants "have refused to disclose the procedures that will be utilized in carrying out the plaintiffs' executions[.]" (Am. Compl.¶ 58.) The plaintiffs' second and third claims allege that the defendants' method of carrying out the plaintiffs' executions by lethal injection violates the Eighth Amendment's prohibition against cruel and unusual punishment. (Id. ¶¶ 61, 63-66.) The plaintiffs' fourth claim, brought under the Administrative Procedure Act ("APA"), alleges that the defendants failed to follow the APA's rulemaking procedures when promulgating their lethal injection protocol. (Id. ¶¶ 68-72.) Finally, the plaintiffs' fifth claim alleges that "the defendants have arbitrarily and capriciously failed to exercise their authority to enforce the CSA" against persons dispensing one of the lethal injection drugs, sodium thiopental, without a valid registration. (Id. ¶¶ 74-77.)

The defendants have renewed² their motion for judgment on the pleadings and their motion to dismiss certain claims and defendants. The defendants contend that they are entitled to judgment because the plaintiffs' claims are barred by the applicable statute of limitations and because the plaintiffs' claims are an eleventh hour challenge filed "too late in the day." (Defs.' Mem. in Supp. of Their Renewed Mot. for J. on the Pleadings ("Defs.' J. on the Pleadings Mem.") at 9-10.) The defendants also contend that all individual capacity claims, the official capacity claims against the DEA Administrator and Dr. Webster, and Counts IV (in part) and V of the amended complaint should be dismissed, alleging that one claim in Count IV is barred by res judicata, that the claim against the DEA Administrator in Count V is foreclosed by the Supreme Court's decision in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and that no relief is available against Dr. Webster because he has exercised his right not to participate in federal executions.

DISCUSSION

I. RENEWED MOTION FOR JUDGMENT ON THE PLEADINGS

A party may move for judgment on the pleadings "[a]fter the pleadings are closed—but early enough not to delay trial" under Rule 12(c). Fed.R.Civ.P. 12(c). Under Rule 12(d), if, as here, "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). Summary judgment may be granted only where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The relevant inquiry "is the threshold inquiry of determining whether there is a need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, all evidence and inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A. Statute of limitations

The defendants contend that the plaintiffs' method-of-execution claims are barred by the general six-year statute of limitations on lawsuits against the government. (Defs.' J. on the Pleadings Mem. at 14) (citing 28 U.S.C. § 2401 ("[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.").) A statute of limitations bar is an affirmative defense and the defendants bear the burden of proving it. See Colbert v. Potter, 471 F.3d 158, 165 (D.C.Cir.2006); Jones v. Ritter, 587 F.Supp.2d 152, 159 (D.D.C.2008.) The defendants allege that each plaintiff's claim accrued at the time he exhausted his direct appeal, which was more than six years before each plaintiff's participation in this action. In response, the plaintiffs contend that the general six-year statute of limitations does not apply to constitutional claims seeking injunctive relief, and that if the statute of limitations does apply, the plaintiffs' claims are timely. (See Pls.' Opp'n to Renewed Mot. for J. on the Pleadings at 15-16.)

The six-year statute of limitations under 28 U.S.C. § 2401 applies to the plaintiffs' claims for injunctive relief. See Kendall v. Army Bd. of Corr. of Military Records, 996 F.2d 362, 365 (D.C.Cir.1993) (holding that § 2401(a) "applies to all civil actions whether...