West v. Brewer, CV-11-1409-PHX-NVW
| Decision Date | 21 December 2011 |
| Docket Number | No. CV-11-1409-PHX-NVW,CV-11-1409-PHX-NVW |
| Parties | Thomas Paul West, et al. Plaintiffs, v. Janice K. Brewer, et al. Defendants. |
| Court | U.S. District Court — District of Arizona |
Plaintiffs have filed a complaint pursuant to 42 U.S.C. § 1983 alleging violations of their rights to be free from cruel and unusual punishment and to due process and equal protection of the law based on Arizona's implementation of its lethal injection protocol. Evidence was received and argument heard on December 5-7, 2011. The Court has also considered the parties' pre-hearing briefs and read the deposition transcripts submitted by the parties. The Court's findings of fact and conclusions of law follow. Almost all of the facts are stipulated or otherwise undisputed. Where these findings differ from the evidence of one side or the other, they are based on the evidence more persuasive to the Court.
Plaintiffs are death row inmates under the supervision of the Arizona Department of Corrections ("ADC"). Plaintiff Todd Smith was sentenced to death for a crime committed after November 23, 1992, and therefore will be executed by lethal injection under A.R.S. § 13-757. Plaintiffs Gregory Dickens, Charles Hedlund, Robert Wayne Murray, and Theodore Washington were sentenced to death for crimes committed before November 23, 1992, and therefore may choose under A.R.S. § 13-757(b) whether to be executed by lethal injection or lethal gas. They have not yet chosen the method of execution. Plaintiff West was executed by lethal injection on July 19, 2011.
In 2007, Plaintiffs filed a § 1983 complaint challenging numerous aspects of Arizona's lethal injection protocol. That protocol was based on Department Order 710, dated November 1, 2007, and as modified by an exhibit submitted by the parties as part of a joint report to the Court. See Dickens v. Brewer, No. CV-07-1770-PHX-NVW, 2009 WL 1904294, at *1 & n.2 (D. Ariz. Jul. 1, 2009) (unpublished order). Department Order 710 stated, and continues to state, "These procedures shall be followed as written unless deviation or adjustment is required, as determined by the Director of the Arizona Department of Corrections."
The version of the protocol at issue in Dickens required sequential administration of: (1) sodium thiopental, an ultra fast-acting barbiturate that induces unconsciousness; (2) pancuronium bromide, a paralytic neuromuscular blocking agent that prevents any voluntary muscle contraction; and (3) potassium chloride, which causes skeletal muscle paralysis and cardiac arrest. On July 1, 2009, this Court granted summary judgment in favor of Defendants, concluding that Arizona's protocol was "substantially similar" to that approved by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), and thus did not subject inmates to a substantial risk of serious harm in violation of the Eighth Amendment. On February 9, 2011, the Court of Appeals for the Ninth Circuit affirmed.Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). The appellate court's mandate issued on April 18, 2011.
On June 10, 2011, ADC amended Department Order 710 to provide for the administration of sodium pentothal (thiopental) or pentobarbital as the first of the three sequentially-administered drugs in its lethal injection protocol.
On July 15, 2011, three days prior to Thomas West's scheduled execution, Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that ADC's unwillingness to follow its written lethal injection protocol and its substitution of pentobarbital for sodium thiopental create a substantial risk they will suffer unnecessary pain during execution, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff West also filed an emergency motion for temporary restraining order and injunctive relief, seeking to enjoin Defendants from carrying out his execution.
On July 17, 2011, the Court declined to stay West's execution, finding no likelihood of success on the merits of Plaintiffs' complaint. See West v. Brewer, 2011 WL 2836754 (D. Ariz. Jul. 18, 2011) (unpublished order), aff'd, 652 F.3d 1060 (9th Cir.), cert. denied, 131 S. Ct. 3092 (2011). Following West's execution, the Court denied Defendants' motion for summary dismissal under Federal Rule of Civil Procedure 12(b)(6) and ordered expedited discovery.
On August 3, 2011, Plaintiffs filed an amended complaint. Plaintiffs allege that ADC's unwillingness to follow its written lethal injection protocol and its use of pentobarbital in place of sodium thiopental create a substantial risk they will suffer unnecessary pain during execution, in violation of the Eighth Amendment.1 Plaintiffs further allege that ADC's unwillingness to follow its written lethal injection protocol violates their right to equal protection under the Fourteenth Amendment and that ADC'sfailure to provide notice of changes to its lethal injection protocol violates their right to due process under the Fourteenth Amendment. Plaintiffs seek equitable, declaratory, and injunctive relief to prevent Defendants from carrying out their executions until such time as Defendants can demonstrate that properly trained staff and medical personnel can properly implement Arizona's lethal injection procedures in a manner that complies with the Eighth Amendment.
On November 10, 2011, the parties each filed proposed findings of fact and conclusions of law. Following a pretrial conference, the Court entered the parties' joint amended pretrial order identifying the contested and uncontested facts and issues of law. A three-day bench trial was held December 5-7, 2011.
To prevail on a § 1983 claim, a plaintiff must show that, while acting under color of state law, the defendants deprived or will deprive him of a right secured by the Federal Constitution or laws of the United States. See Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
The Eighth Amendment to the United States Constitution, applicable to the States through the Due Process Clause of the Fourteenth Amendment, provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Baze v. Rees, 553 U.S. at 47. Subjecting individuals to a risk of future harm—not simply actually inflicting pain—can qualify as cruel and unusual punishment under the Eighth Amendment. Id. at 49-50. The Eighth Amendment will be violated where there is a "substantial risk of serious harm" that is sure or very likely to cause pain and needless suffering. Dickens v. Brewer, 631 F.3d at 1144-46 (adopting plurality in Baze, 553 U.S. 35); see also Brewer v. Landrigan, 131 S. Ct. 445 (2010) (Mem.). The risk must be an "'objectively intolerable risk of harm' that prevents prison officials from pleading that they were 'subjectively blameless for purposes of the Eighth Amendment.'" Baze, 553 U.S. at 50 (citing Farmer v. Brennan, 511 U.S. 825, 842 (1994)).
In the context of carrying out an execution by lethal injection, if the State refuses to adopt a proffered feasible, readily implemented alternative that significantly reduces a substantial risk of severe pain, without a legitimate penological justification, such refusal can be viewed as "cruel and unusual" under the Eighth Amendment. Baze, 553 U.S. at 52. A court reviewing the constitutionality of a state's written lethal injection protocol must look beyond the facial constitutionality of the protocol when presented with evidence of improper administration. Dickens, 631 F.3d at 1146. "[F]ailing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride." Baze, 553 U.S. at 53.
The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. State action burdening a fundamental right is subjected to strict scrutiny and will be sustained only if it is narrowly tailored to serve a compelling state interest. Zablocki v. Redhail, 434 U.S. 374, 388 (1978).
The Due Process Clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. "The touchstone of due process is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558 (1974). The procedural due process guarantee protects against the denial of fundamental procedural fairness. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). The substantive due process guarantee "protects against government power arbitrarily and oppressively exercised." Id. at 846 (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)).IV. Undisputed Facts
A. Dickens Litigation
Arizona's current lethal injection protocol has its genesis in Dickens v. Brewer. During the Dickens litigation, the parties engaged in good-faith discussions to resolve some of the issues raised by Plaintiffs. A subsequently filed joint report indicated that Defendants had agreed to modify Arizona's lethal injection protocol in the following ways: (1) lethal chemicals will be administered by default through an intravenous ("IV") peripheral line, not a central line in the femoral vein; (2) IV lines will be placed only by medically licensed individuals with at least one year current and regular practice placing such lines;2 (3) ADC will conduct license and background checks of Medical Team members annually and upon issuance of an execution warrant; (4) ADC will maintain any documentation establishing the qualifications and training of the Medical Team members; (5) ADC will use a clinical concentration of thiopental of 2.5%; (6) ADC will eliminate use of a "false"...
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