Atwood v. Shinn

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Frank Jarvis Atwood, No. CV-22-00860-PHX-MTL (JZB)

10 Plaintiff, ORDER

11 v.

12 David Shinn, et al.,

13 Defendants. 14 15 Plaintiff Frank Atwood is scheduled to be executed on Wednesday June 8, 2022. 16 On May 19, 2022, he sued various Arizona Department of Corrections, Rehabilitation, and 17 Reentry (“ADCRR”) officials and Arizona Attorney General Mark Brnovich challenging 18 aspects of ADCRR’s Execution Protocol. On May 26, 2022, Plaintiff filed a Motion for 19 Preliminary Injunction seeking an Order “prohibiting Defendants . . . from executing 20 [Plaintiff] according to [ADCRR’s] Execution Procedures . . . until such time as 21 Defendants can assure this Court that [Plaintiff’s] execution would be in compliance with 22 the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.” (Doc. 23 16 at 22). Briefing on the motion was completed on Thursday June 2, 2022, and the Court 24 held a Preliminary Injunction hearing on Friday June 3, 2022 at 2:00 p.m.1 25 In the meantime, Plaintiff also filed a motion to sever Counts VI and VII of his First 26 Amended Complaint—challenges to Arizona’s designation of hydrogen cyanide as the gas

27 1 The Court notes that at the conclusion of the preliminary injunction hearing, Plaintiff’s counsel requested a continuation of the hearing into the weekend. As the Court explained, 28 Plaintiff had abundant time in the days leading up to the hearing to indicate that additional time might be necessary yet failed to do so. 1 to be used in a lethal gas execution—because those claims did not implicate Defendant 2 John Doe, the pharmacist preparing the lethal injection drugs to be used in Plaintiff’s 3 execution, whose identity is unknown to Plaintiff. (Doc. 25). Because Defendants 4 maintain Plaintiff will be executed by lethal injection, the Court directed Plaintiff to show 5 cause why those claims should not be dismissed for lack of standing. (Doc. 31). Plaintiff 6 responded to the Order to Show Cause. (Doc. 40). 7 After considering the parties’ briefing, testimony, and evidence, the Court will deny 8 the Motion for Preliminary Injunction, dismiss Counts VI and VII, and enter judgment on 9 those claims. 10 I. Background 11 In his First Amended Complaint, Plaintiff alleges he is wheelchair bound from a 12 degenerative spinal disease and experiences “intense and profoundly debilitating pain 13 along his spine because of chronic degeneration of vertebral bodies” that have “caused 14 multiple compressions of the nerve roots as they pass from the spinal cord to the arms and 15 legs,” which “has resulted in permanent damage that manifests as profound weakness and 16 unremitting pain.” (Doc. 21 at 8). To minimize the pain Plaintiff experiences, he maintains 17 a seated posture in his wheelchair and partially reclines when “attempting to sleep.” 18 Plaintiff maintains that “[l]ying flat on his back exacerbates his conditions, causing 19 maximum pain.” (Id.). For these reasons, Plaintiff alleges ADCRR’s lethal injection 20 protocol would subject him to significant pain not necessary to accomplish his execution. 21 (Id. at 9). Specifically, Plaintiff alleges that a review of logs from Arizona’s 14 most recent 22 executions reflects that prisoners are secured on the execution table for an average of 44 23 minutes prior to the administration of lethal drugs. (Id. at 10). Because of Plaintiff’s spinal 24 condition, he alleges that would cause him excruciating and unnecessary pain. 25 Plaintiff also asserts that ADCRR’s Execution Protocol requires that lethal injection 26 drugs have a “beyond use date” (“BUD”) after the date of the execution and authorizes 27 prisoners subject to a warrant of execution to request and receive a “quantitative analysis” 28 about the drugs to be used in an execution. (Id. at 16). Plaintiff alleges that Defendants 1 have refused to provide this information or verify the pentobarbital to be used in Plaintiff’s 2 execution has an appropriate BUD. Additionally, Plaintiff alleges the quantitative analysis 3 disclosed in conjunction with Clarence Dixon’s execution did not meet United States 4 Pharmacopeia standards. (Id. at 20-25). With respect to the option to be executed by lethal 5 gas, Plaintiff alleges Defendants’ specification of intention to use hydrogen cyanide as its 6 lethal gas was intended to cause gratuitous pain. (Id. at 18). 7 Plaintiff presents the following claims for relief: ADCRR’s lethal injection 8 procedures as applied to Plaintiff violate Plaintiff’s Eighth Amendment, Americans with 9 Disabilities Act (ADA), and Rehabilitation Act (RA) rights (Counts I, II, and III); ADCRR 10 is discriminating against Plaintiff because of his disability in violation of the Fourteenth 11 Amendment’s Equal Protection Clause (Count IV); ADCRR’s refusal to abide by its own 12 Execution Protocol by failing to provide a BUD and appropriate quantitative analysis for 13 the pentobarbital it intends to use during Plaintiff’s execution violates his procedural due 14 process rights under the Fourteenth Amendment (Count V); and ADCRR’s election to use 15 cyanide gas violates Plaintiff’s Eighth and Fourteenth Amendment rights (Counts VI and 16 VII). Plaintiff also alleges ADCRR’s execution protocols violate Plaintiff’s right to access 17 the courts under the Fourteenth Amendment and statutory right to counsel under 18 U.S.C. 18 § 3599 (Counts VIII and IX); and the potential for pentobarbital intoxication, should the 19 execution be interrupted or suspended, violates Plaintiff’s Eighth and Fourteenth 20 Amendment rights (Count X). 21 In his motion for injunctive relief, Plaintiff presents background facts regarding his 22 spinal condition, anticipated difficulties with IV insertion based on prior executions, 23 inadequacy of the lethal injection drugs Defendants intend to use to execute Plaintiff, and 24 Defendants’ improper designation of hydrogen cyanide as the lethal gas to be used in its 25 executions. (Doc. 21). 26 In contrast, however, the motion for injunctive relief only squarely argues Plaintiff’s 27 likelihood of success on the merits of his claims in Counts I, II, and III. In the argument 28 section of his motion, Plaintiff does not discuss the BUD for the pentobarbital or identify 1 any caselaw that supports his BUD due process claim. Plaintiff’s motion discusses 2 nitrogen gas, but only as an alternative method of execution as required by Glossip v. 3 Gross, 576 U.S. 863 (2015). 4 Against this backdrop, Defendants responded to the motion for injunctive relief, and 5 indicated that Plaintiff would be provided a medical wedge during the execution to alleviate 6 the pain he would otherwise suffer due to his spinal condition. Defendants further argued 7 that the table in the execution room is capable of being tilted to further alleviate any pain 8 Plaintiff might experience while lying on his back. 9 In his reply, Plaintiff argued Defendants “ignore the central justification for an 10 injunction,” namely, “relief in order to prevent Defendants from using inadequately tested, 11 inadequately vetted high-risk compounded drugs for his lethal injection.” (Doc. 35 at 3). 12 As to Plaintiff’s claim concerning his spinal condition, he replies that Defendants’ 13 accommodations are not sufficient to alleviate his pain. 14 The Court permitted Defendants to file a sur-reply, which explained why they only 15 addressed Plaintiff’s Eighth Amendment claim related to his spinal condition and not the 16 drugs to be used during his execution. (Doc. 43). 17 Because of the confusion surrounding the precise scope of the relief Plaintiff was 18 seeking, the Court began the evidentiary hearing by asking Plaintiff to explain the 19 parameters of his request for injunctive relief. Plaintiff explained that the motion for 20 injunctive relief was filed as an “umbrella” motion intended to encompass all the claims 21 alleged in the First Amended Complaint. (June 3, 2022 Preliminary Injunction Hearing 22 Transcript at 7:9-11). As noted, however, the motion only addressed the Winter factors as 23 to Plaintiff’s claims regarding his spinal condition and how that condition would result in 24 substantial pain during a lethal injection execution if he was compelled to lie on his back. 25 As a result, the Court had no briefing on any of Plaintiff’s other claims, including those 26 regarding the propriety of the pentobarbital to be used or the reliability of the BUD ascribed 27 to it. Further, the Court has no briefing regarding how any deviations from ADCRR’s 28 Execution Protocol might implicate a cognizable liberty interest under the Fourteenth 1 Amendment. Not only is the Court unaware of any authority which authorizes the issuance 2 of an injunction in this way, this limited record greatly impedes the Court’s ability to 3 meaningfully consider Plaintiff’s claims and evidence. Nevertheless, because of the 4 exigencies of the situation, the Court permitted Plaintiff to present testimony during the 5 hearing as to claims other than those related to his spinal condition. 6 The Court will address the claims Plaintiff presented during the preliminary 7 injunction hearing. The claims appear to fall into three main categories: (1) Plaintiff’s 8 claim that a lethal injection execution pursuant to the Execution Protocol will violate 9 Plaintiff’s Eighth Amendment and ADA rights because of his serious spinal condition; (2) 10 Plaintiff’s claim that Defendants’ failure to perform a quantitative analysis of the 11 pentobarbital violates his due process and Eighth Amendment rights; and (3) Plaintiff’s 12 claim that Defendants’ designation of hydrogen cyanide gas for a lethal gas execution 13 violates his Eighth and Fourteenth Amendment rights.2 14 II. Standard for Injunctive Relief 15 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 16 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 17 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 18 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 19 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 20 never awarded as of right”). 21 A plaintiff seeking a preliminary injunction must show that (1) he is likely to succeed 22 on the merits, (2) he is likely to suffer irreparable harm without an injunction, (3) the 23 balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter, 24 555 U.S. at 20. “But if a plaintiff can only show that there are ‘serious questions going to 25 2 Plaintiff did not present evidence regarding his claims that Defendants are discriminating 26 against Plaintiff based on his disability in violation of the Fourteenth Amendment (Count IV), that Plaintiff may experience a denial of access to the courts and of access to counsel 27 during his execution in violation of 18 U.S.C. § 3599 and the Fourteenth Amendment (Counts VIII and IX), and that the potential for pentobarbital intoxication should the 28 execution be interrupted or suspended violates Plaintiff’s Eighth and Fourteenth Amendment rights (Count X). The Court, therefore, will not address those claims. 1 the merits’—a lesser showing than likelihood of success on the merits—then a preliminary 2 injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ 3 and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 4 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 5 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious questions variant of the Winter test, 6 “[t]he elements . . . must be balanced, so that a stronger showing of one element may offset 7 a weaker showing of another.” Lopez, 680 F.3d at 1072. When the government opposes a 8 preliminary injunction,”[t]he third and fourth factors of the preliminary-injunction test— 9 balance of equities and public interest—merge into one inquiry.” Porretti, 11 F.4th at 10 1047. The “balance of equities” concerns the burdens or hardships to a prisoner 11 complainant compared with the burden on the government defendants if an injunction is 12 ordered. Id. The public interest mostly concerns the injunction’s impact on nonparties 13 rather than parties. Id. (citation omitted). Regardless, “[i]t is always in the public interest 14 to prevent the violation of a party’s constitutional rights.” Id. (citation omitted). 15 Regardless of which standard applies, the movant “has the burden of proof on each 16 element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 17 1027 (E.D. Cal. 2000). Generally, “[w]hen a plaintiff seeks injunctive relief based on 18 claims not pled in the complaint, the court does not have the authority to issue an 19 injunction.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th 20 Cir. 2015); see De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945) 21 (preliminary injunctive relief is inappropriate for matters “lying wholly outside the issues 22 in the suit”). 23 III. Discussion 24 A. Spinal Condition3 25 The Eighth Amendment prohibits execution procedures that inflict cruel and 26 unusual punishment. See Baze v. Rees, 553 U.S. 35 (2008). In Baze, the Supreme Court

27 3 The Court did not receive any argument or evidence regarding how Defendants’ planned accommodation of Plaintiff’s spinal condition is nonetheless violative of the ADA or the 28 RA (Counts II and III). The Court therefore only analyzes Plaintiff’s Eighth Amendment challenge in Count I. 1 rejected the petitioners’ argument that “unnecessary risk” violated the Eighth Amendment 2 and held instead that prisoners facing execution must demonstrate “a ‘substantial risk of 3 serious harm,’” or “an ‘objectively intolerable risk of harm’ that prevents prison officials 4 from pleading that they [are] ‘subjectively blameless for purposes of the Eighth 5 Amendment.’” Id. at 50 (quoting Farmer v. Brennan, 511 U.S. 825, 846, & n. 9 (1994)). 6 Several years later, the Supreme Court further made clear in Glossip v. Gross that 7 the standard set forth in Baze governs “all Eighth Amendment method-of-execution 8 claims”). Glossip, 576 U.S. at 877-78. 9 Together, Baze and Glossip confirm that the Eighth Amendment “does not demand 10 the avoidance of all risk of pain in carrying out executions.” Baze, 553 U.S. at 47; see also 11 Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (“T][he Eighth Amendment does not 12 guarantee a prisoner a painless death.”). Baze provides instead that the Constitution affords 13 a “measure of deference to a State’s choice of execution procedures” and does not authorize 14 courts to serve as “boards of inquiry charged with determining ‘best practices’ for 15 executions.” Baze, 553 U.S. at 51 & n.2. The Eighth Amendment is not impinged unless 16 the risk of pain the prisoner might experience is “substantial when compared to a known 17 and available alternative.” Glossip, 576 U.S. at 878 (citing Baze, 553 U.S. at 61). 18 Plaintiff argues—and Defendants do not dispute—that he suffers from a serious 19 spinal condition that causes him significant pain. Dr. Joel Zivot testified that Plaintiff has 20 a “series of skeletal deformities throughout his spine, really from the top of his back, the 21 cervical spine region, all the way really to the base of his spine.” (June 3, 2022 Preliminary 22 Injunction Hearing Transcript at 98-99). Dr. Zivot opined that, as a result, Plaintiff cannot 23 lie flat, and that the least painful position for Plaintiff requires him to sit at an 24 approximately 60-degree angle with at least one leg bent. 25 Defendants introduced photographs depicting Plaintiff at rest in his cell. In the 26 photographs, he is on his bed, propped up by pillows and blankets, and his right leg is bent. 27 In several pictures, Plaintiff appears to be asleep, but in one picture Plaintiff is awake. 28 Plaintiff does not appear to be in acute distress. Defendants assert they plan to provide 1 Plaintiff with a medical wedge on top of the execution table, which will allow Plaintiff to 2 lie in a similar position to when he was in his cell. 3 Plaintiff does not dispute Defendants’ evidence that they plan to provide Plaintiff 4 with a medical wedge and that the execution table is capable of being tilted, which will 5 minimize the pain Plaintiff experiences when he lies on his back. The Court finds that 6 these accommodations preclude a finding that ADCRR’s lethal injection protocol creates 7 a “substantial risk of severe pain” or seeks to “superadd terror, pain, or disgrace” to 8 Plaintiff’s execution. Bucklew, 139 S. Ct. at 1124, 1130. The Eighth Amendment does not 9 require a pain-free execution. Id. at 1124. There is no evidence that the position Plaintiff 10 will be in using the medical wedge will be substantially different from the position he 11 assumes in his cell. And although the Court recognizes the pain Plaintiff experiences at all 12 times, that is no basis upon which to conclude his execution violates the Eighth 13 Amendment. Therefore, the Court finds that Plaintiff is not likely to succeed on the merits 14 of his claim and that he has raised serious questions going to the merits of his claim. 15 B. Pentobarbital 16 Plaintiff raises two interrelated challenges to the pentobarbital. First, he argues that 17 ADCRR has deviated from its Execution Protocol in significant ways, thereby violating 18 Plaintiff’s right to due process. Plaintiff further alleges there are significant questions 19 about the provenance and quality of the pentobarbital to be used, which create a substantial 20 risk of serious harm in violation of the Eighth Amendment. The Court notes, however, that 21 Plaintiff did not raise an Eighth Amendment challenge to the pentobarbital to be used in 22 his execution. Plaintiff’s singular claim in Count V is a due process challenge to 23 Defendants’ deviation from the Execution Protocol and the settlement agreement entered 24 in Wood v. Ryan, 14-CV-01447-PHX-NVW. As noted, the Court does not have authority 25 to issue an injunction regarding a claim not raised in the complaint. Pac. Radiation 26 Oncology, LLC, 810 F.3d at 636. Therefore, the Court will only address Plaintiff’s due 27 process claim.4

28 4 Even if Plaintiff had properly raised an Eighth Amendment claim challenging the propriety or quality of the pentobarbital to be used in his execution, the evidence he 1 Plaintiff argues that ADCRR’s Execution Protocol and the Settlement Agreement 2 in Wood v. Ryan, 14-CV-01447-PHX-NVW, create binding requirements Defendants must 3 follow. Plaintiff further argues that Defendants failed to perform a quantitative analysis of 4 the pentobarbital to be used in Plaintiff’s execution or to perform the specialized testing 5 required to extend the BUD for compounded pentobarbital violate his due process rights. 6 In support of his due process claim, Plaintiff points to a specific provision of the Settlement 7 Agreement in Wood v. Ryan: 8 WHEREAS, Defendants hereby represent, covenant, and agree, and the parties intend, that Defendants and the ADC will remove from the ADC’s 9 current execution procedures the sentence—“[t]his Department Order 10 outlines internal procedures and does not create any legally enforceable rights or obligations”—and that Defendants and the ADC will never again 11 include such language or substantially similar language in any future version 12 of the ADC’s execution procedures (together, “Covenant No. 1”). 13 Plaintiff assumes this provision automatically creates a cognizable liberty interest 14 in ADCRR’s Execution Protocol.5 Plaintiff further points out that the protocol requires 15 Defendants to perform a “quantitative analysis” and to use non-expired lethal injection 16 drugs. Plaintiff challenges the substance of Defendants’ quantitative analysis and of the 17 methodology used by the compounding pharmacist to assign the BUD on the pentobarbital 18 to be used in Plaintiff’s execution. 19 Plaintiff’s argument suffers from several fatal flaws. The first is that Covenant 1 20 from the Wood Settlement Agreement does not automatically create a liberty interest 21 cognizable under the Fourteenth Amendment. Indeed, Plaintiff fails to point to any caselaw 22

23 provided was not sufficient to establish a likelihood of success or serious questions on the merits of his claim that using the compounded pentobarbital introduces a substantial risk 24 of severe pain. See Baze, 553 U.S. at 50. 5 The Court notes Defendants mis-analyze Plaintiff’s due process claim. Defendants 25 contend “Where a particular amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that 26 Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) 27 (Rehnquist, C.J., for plurality) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Defendants would be correct if Plaintiff were presented a substantive due process claim. 28 But Plaintiff presents a procedural due process claim. As a result, it is, in fact, appropriate to evaluate Plaintiff’s due process challenge. 1 that recognizes a state-created liberty interest under similar circumstances. During the 2 evidentiary hearing, Plaintiff relied on Wolff v. McDonnell, 418 U.S. 539 (1974) for the 3 proposition that traditional due process cases establish a liberty interest in this case. But 4 merely citing that canonical case is insufficient to recognize a specific liberty interest in 5 Arizona’s Execution Protocol. 6 Further, even if Plaintiff could establish a liberty interest, there is insufficient 7 evidence to conclude Arizona has deviated from its Execution Protocol. The Protocol 8 neither defines “quantitative analysis” nor sets forth requirements for how a BUD must be 9 assigned. As a consequence, there is insufficient evidence that Plaintiff’s due process 10 rights have been violated. Without any additional authority, Plaintiff has not shown a 11 likelihood of success, or even serious questions, going to the merits of his claim. 12 Because the plaintiff bears the burden of “demonstrat[ing] that it meets all four” 13 factors in order to obtain a preliminary injunction, DISH Network Corp. v. F.C.C., 653 F.3d 14 771, 776-77 (9th Cir. 2011), and Plaintiff has failed to meet the first factor under either 15 standard, his motion for injunctive relief must be denied. 16 IV. Order to Show Cause 17 In its June 1, 2022 Order, the Court directed Plaintiff to show cause why Counts VI 18 and VII should not be dismissed for lack of standing. (Doc. 31). Plaintiff filed his 19 response, contending that he has standing to pursue his due process challenge because he 20 was not provided a constitutional choice of the lethal gas to be used in his execution. 21 Plaintiff argues that his “injury began occurring as soon as the window for making the 22 choice allowed by statute (A.R.S. § 13-757) closed without [Plaintiff] being offered a valid 23 choice” and that such injury continues. 24 What Plaintiff does not provide, however, is a citation to any authority that he has a 25 due process liberty interest under the Fourteenth Amendment to a choice regarding the 26 method of his execution. Without such authority, there can be no viable due process claim. 27 Nor does Plaintiff identify how he could now choose lethal gas—of whatever type—under 28 Arizona Revised Statute § 13-757. Therefore, because Plaintiff has not established that he is likely to be executed using lethal gas, there is no basis to conclude he has standing to || pursue his Eighth or Fourteenth Amendment claims in Counts VI and VIL. 3 IT IS THEREFORE ORDERED that Plaintiff's Motion for Preliminary 4|| Injunction (Doc. 16) is denied. 5 IT IS FURTHER ORDERED that Counts VI and VII are dismissed. 6 IT IS FURTHER ORDERED that Plaintiff's Motion to Sever Counts VI and VI (Doc. 25) is denied as moot. 8 IT IS FURTHER ORDERED that because there is no just reason for delay, see 9|| Fed. R. Civ. P. 54(b), the Clerk of Court must enter judgment as to Counts VI and VII. 10 IT IS FURTHER ORDERED the action remains ongoing as to Plaintiffs 11 |} remaining claims in Counts I-V and VIII-X. 12 Dated this 4th day of June, 2022. 13 Wicked T. diburde Michael T. Liburdi 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

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