First Amendment Coal. of Ariz., Inc. v. Ryan

v. Charles L. Ryan , Director of ADC ; James O'Neil , Warden , ASPC–Eyman ; Greg Fizer , Warden , ASPC–Florence ; and Does 1-10, Unknown ADC Personnel , in their official capacities as Agents of ADC , Defendants .

No. CV-14-01447-PHX-NVW

United States District Court, D. Arizona .

Signed May 18, 2016

Alycia Ann Degen , Amanda V. Lopez , Collin P. Wedel , Joshua E. Anderson , Katherine A. Roberts , Lauren Ann McCray , Mark E. Haddad , Matt Light , Aimee Grace Mackay , Collin Partington Wedel , Joshua Eugene Anderson , Sidley Austin LLP , Los Angeles, CA, Dale A. Baich , Robin C. Konrad , Jessica Lynn Felker , Federal Public Defenders Office , Phoenix, AZ, for Plaintiffs .

David Daniel Weinzweig , Jeffrey Lee Sparks , Jeffrey Alan Zick , Julie Ann Done , John Pressley Todd , Office of the Attorney General , Capital Litigation Section , Phoenix, AZ, Lacey Stover Gard , Laura Patrice Chiasson , Office of the Attorney General , Capital Litigation Section , Tucson, AZ, for Defendants .

Neil V. Wake , United States District Judge

This action challenges Arizona's way of executing death row inmates. Before the court is Defendants ' motion to dismiss Plaintiffs ' second amended complaint , argued on April 7, 2016 . ( Doc. 98 .) The motion will be granted in part and denied in part.

Plaintiffs are seven Arizona death row inmates and the First Amendment Coalition of Arizona, Inc. , a non-profit corporation made of news organizations dedicated to free speech, accountable government, and public participation in civic affairs. ( Doc. 97, ¶ 10 .) The second amended complaint raises eight claims under 42 U.S.C. § 1983 . ( Doc. 97 .) Plaintiffs challenge Arizona's execution process and its "lack of transparency," including the use of a paralytic agent in the three-drug lethal injection protocol, on First Amendment , Eighth Amendment , due process, and equal protection grounds. ( Id. at 3 .) The defendants are the Director of the Arizona Department of Corrections and two wardens. They will be referred to as "the Department" or " the State ," the entities answerable for their actions. They move to dismiss the complaint pursuant to Rule 12 (b) (6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.

A motion to dismiss is a challenge to the legal sufficiency of the plaintiff 's pleadings. Dismissal under Rule 12 (b) (6) can be based on "the lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 ( 9th Cir. 1990 ) . A complaint need include "only enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 ( 2007 ) .

On such a motion, all allegations of material fact are assumed to be true and construed in the light most favorable to the non-moving party . Cousins v. Lockyer , 568 F.3d 1063, 1067 ( 9th Cir. 2009 ) . However, that does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal , 556 U.S. 662, 678 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 ( 2009 ) . "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "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. The details of the complaint must permit the court to infer more than a mere possibility of conduct for which the law gives a remedy. Id. If the plaintiff 's pleadings fall short of this standard, dismissal is warranted.

Arizona law requires execution by lethal injection for capital crimes committed after 2000 , A.R.S. § 13-757 (A) , which "shall be administered under such procedures and supervision as prescribed by law." Ariz. Const. art. XXII § 22 . In fact, nothing in the Arizona Revised Statutes or the Arizona Code of Regulations states any other substantive standards or procedural requirements for executions. The Department states its protocols in a Departmental Order which, though generally written in mandatory language, allows the Department to deviate anytime in any way it thinks necessary.

The execution procedures of the Arizona Department of Corrections are set forth in Department Order 710, which became effective on October 23, 2015 . ( Doc. 98 , Ex. A.) Department Order 710 allows four lethal injection protocols: two one-drug protocols using pentobarbital or sodium pentothal (Protocols A and B) and two three-drug protocols, one using midazolam as a sedative (Protocol C) and one using sodium pentothal (Protocol D) . Protocols C and D both use a paralytic as the second drug, to be administered before the final drug, potassium chloride. At issue in this litigation is Protocol C, which consists of (1) 500 mg of midazolam, (2) 100 mg of vecuronium bromide, rocuronium bromide, or pancuronium bromide, and (3) 240 mEq of potassium chloride.

In three-drug lethal injection protocols such as Protocol C, the first drug is intended to produce a state of unconsciousness such that the prisoner is insensate to pain that would be caused by the later drugs. See Glossip v. Gross , ––– U.S. –––– , 135 S.Ct. 2726, 2741 , 192 L.Ed.2d 761 ( 2015 ) . The second drug "is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration." Baze v. Rees , 553 U.S. 35, 44 , 128 S.Ct. 1520 , 170 L.Ed.2d 420 ( 2008 ) . The third drug "interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest." Id. "It is uncontested that, failing a proper dose of [the first drug] 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." Id. at 53 , 128 S.Ct. 1520 .

Midazolam is a sedative in the benzodiazepine family of drugs. ( Doc. 97, ¶ 135 .) Arizona, along with other states, included midazolam in its lethal injection protocol when the barbiturates sodium thiopental and pentobarbital became unavailable. ( Id. , ¶¶ 32–38 .)

Although Department Order 710 establishes execution procedures, the first paragraph retains discretion to deviate from the procedures whenever deemed necessary. The clause states:

These procedures shall be followed as written unless deviation or adjustment is required, as determined by the Director of the Arizona Department of Corrections (Department) . This Department Order outlines internal procedures and does not create any legally enforceable rights or obligations.

( Doc. 98, Ex. A at 002 .) This clause was not included in the version of Department Order 710 effective November 5, 2004 , Dickens v. Brewer , 07-CV-01770-NVW , Doc. 108-1 at 26 , but similar provisions have been included since at least 2008 , id. at 2 .

In recent history, the Department has deviated from its published execution procedures in ways ranging from minor to fundamental. It has successfully defended litigation in district court based on the Protocol as written but then deviated before the execution. It has changed its Protocol at oral argument in the court of appeals , showing the litigation in district court was hypothetical, to get a favorable ruling from which to negotiate with the court of appeals about what it really will do. It has deviated in the course of an execution without explanation.

In 2007 , the State sought a warrant of execution for Jeffrey Landrigan . ( Doc. 97, ¶¶ 50–51 .) While the application for the warrant was pending, several inmates filed a complaint challenging the lethal injection procedures then in effect. Dickens v. Brewer , 07-CV-01770-NVW . During that litigation, the Department amended its protocol twice after conducting discovery. ( Doc. 97, ¶ 52 .) The Department agreed to amend its protocol to address the concerns plaintiffs raised. The court ultimately granted summary judgment for the Department, finding that when considering the Department's averments and promises in its briefing and oral argument, the protocol was substantially similar to that upheld in Baze . ( Id. )

The State again sought a warrant of execution for Landrigan. ( Id. , ¶ 53 .) The Department's protocol still prescribed a three-drug combination with sodium thiopental as the first chemical. ( Id. ) By this time, however, the vendors relucted and a nationwide shortage of sodium thiopental developed. The Department refused to disclose the provenance of the drug it intended to use except to confirm that it was not manufactured by Hospira, the only FDA-approved domestic manufacturer. ( Id. , ¶¶ 54–55 .) The district court granted a temporary stay of execution to allow Landrigan to challenge the use of non-FDA-approved sodium thiopental, Landrigan v. Brewer , 10-CV-2246-ROS, Doc. 21 , and the Ninth Circuit affirmed. ( Doc. 97, ¶ 56 .) The Supreme Court then vacated the stay, and Landrigan was executed. ( Id. ) After Landrigan was declared dead, the Department continued to inject additional doses of backup chemicals into his body until the physician-executioner warned that further injections could rupture his vena cava. ( Id. )

Following Landrigan's execution, the Ninth Circuit heard oral argument in Dickens v. Brewer. 631 F.3d 1139 ( 9th Cir. 2011 ) . The record included testimony that a medical team member responsible for carrying out executions "knowingly ‘improvised’ the doses of lethal injection drugs, adhered to no set protocol, .