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Robert W. Jackson, Iii v. Carl C. Danberg

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


September 7, 2011

ROBERT W. JACKSON, III
v.
CARL C. DANBERG, COMMISSIONER, DELAWARE DEPARTMENT OF CORRECTION; THOMAS L. CARROLL, WARDEN DELAWARE CORRECTIONAL CENTER; PAUL HOWARD, BUREAU CHIEF DELAWARE BUREAU OF PRISONS; OTHER UNKNOWN STATE ACTORS RESPONSIBLE FOR AND PARTICIPATING IN THE CARRYING OUT OF PLAINTIFF'S EXECUTION ROBERT W. JACKSON, III, INDIVIDUALLY AND ON BEHALF OF THE CERTIFIED CLASS, APPELLANT

On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-06-cv-00300) District Judge: Honorable Sue L. Robinson

The opinion of the court was delivered by: Fisher, Circuit Judge.

PRECEDENTIAL

Argued July 28, 2011

Before: AMBRO, FISHER and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

A class of inmates sentenced to death by the State of Delaware and named plaintiff Robert W. Jackson, III (collectively referred to in this opinion as "Plaintiffs"), appeal from the District Court's denial of their motion to reopen and their motion for a stay of Jackson's execution. After careful review, we conclude that the District Court did not abuse its discretion, and, accordingly, we affirm.

I.

A. Facts

This is our second encounter with a 42 U.S.C. § 1983 challenge related to Delaware's lethal injection protocol. Much of the background factual information in this case is the same as we recounted in Jackson v. Danberg, 594 F.3d 210 (3d Cir. 2010) ("Jackson I"), and so we only will briefly outline that background material before setting forth in more detail those facts essential to the resolution of this appeal.

Delaware law provides that:

[p]unishment of death shall, in all cases, be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such person sentenced to death is dead, and such execution procedure shall be determined and supervised by the Commissioner of the Department of Correction.

DEL. CODE ANN. tit. 11, § 4209(f) (2006 Supp.). The statute does not mandate the use of any particular drug or series of drugs.

On August 29, 2008, the Delaware Department of Correction ("DDOC") instituted a new lethal injection protocol ("2008 Protocol"). The protocol calls for the sequential intravenous ("IV") injection of three chemicals into an inmate's bloodstream. The first chemical is sodium thiopental, which renders an inmate unconscious. The second chemical is pancuronium bromide, a muscle relaxant that acts as a paralytic agent. The third and final chemical is potassium chloride, which induces cardiac arrest and causes the inmate's death. The 2008 Protocol also calls for the IV team, consisting of two people who may have at least one year of professional experience,*fn1 to examine the inmate to ensure he is unconscious before the pancuronium bromide is administered. The consciousness check requires the warden to call the inmate's name out loud to observe any reaction from the inmate. At the same time, a member of the IV team assesses the inmate's consciousness by touching the inmate, shaking his shoulder, and brushing his eyelashes. If the inmate is not unconscious, the protocol requires the execution team to repeat the administration of the first chemical and subsequent consciousness checks until the inmate is deemed unconscious.

Delaware amended its protocol on May 5, 2011. The amended protocol, which is before us today, includes only one significant difference. Due to a nationwide shortage of sodium thiopental, Delaware, along with a number of other states, revised its protocol to allow for the use of an alternative barbiturate, pentobarbital, as the first chemical to be administered.

B. Procedural History

Jackson, a Delaware state inmate convicted of first degree murder and sentenced to death by the State of Delaware, commenced this action on May 8, 2006. He filed a section 1983 action*fn2 alleging that the State of Delaware'sthen-existing method of lethal injection created an unconstitutional risk of pain and suffering, cognizable under the Eighth and Fourteenth Amendments of the United States Constitution.*fn3 The District Court certified a class under Fed. R. Civ. P. 23(b) consisting of all Delaware death row inmates and appointed class counsel. See Jackson v. Danberg, 240 F.R.D. 145 (D. Del. 2007).

During the course of litigation in the District Court, Defendants amended their lethal injection protocol twice. Ultimately, the 2008 Protocol was enacted in an effort to incorporate the safeguards described by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), which upheld Kentucky's lethal injection protocol against a challenge under the Eighth Amendment. Upon adoption of the 2008 Protocol and at the direction of the District Court, Defendants moved for summary judgment. They argued that the 2008 Protocol fully complied with the mandate of Baze and that the lethal injection protocol, including the use of sodium thiopental, did not constitute cruel and unusual punishment. The District Court acknowledged that the DDOC had failed to follow its own procedures in certain executions but held that Plaintiffs had not shown a "substantial risk of an inadequate dose of sodium thiopental." Jackson v. Danberg, 601 F. Supp. 2d 589, 599 (D. Del. 2009). The District Court granted summary judgment to Defendants and stayed executions pending appeal. Id.

Plaintiffs appealed, and Defendants cross-appealed the stay of executions. We affirmed the grant of summary judgment, applying Baze to our analysis. Jackson I, 594 F.3d 210. We held that to prevail on a claim that a risk of future harm runs afoul of the Constitution, an inmate must demonstrate that "the conditions presenting the risk must be 'sure or very likely to cause serious illness and needless suffering,' and give rise to 'sufficiently imminent dangers.'" Id. at 216 (quoting Baze, 553 U.S. at 50). We noted that "the proper administration of sodium thiopental is an indispensable link in the lethal injection chain for Eighth Amendment purposes, as it ensures that an inmate will not suffer under the effects of the second two drugs." Id. at 225. In other words, although "[r]easonable people of good faith disagree on the morality and efficacy of capital punishment," Delaware's 2008 Protocol is not unconstitutional under existing Supreme Court precedent. Id. at 230 (quoting Baze, 553 U.S. at 61). The Supreme Court denied certiorari on October 12, 2010. Jackson v. Danberg, 131 S. Ct. 458 (2010).

Shortly after Delaware changed its protocol to include pentobarbital as an alternative to sodium thiopental in May 2011, Plaintiffs filed a motion to reopen under Fed. R. Civ. P. 60(b)(6) and (d) and a motion to stay Jackson's execution with the District Court. Plaintiffs argued that the substitution of pentobarbital for sodium thiopental is a factual change that undermines the foundations of the prior ruling, constituting an exceptional circumstance under Rule 60(b)(6) and a circumstance calling for an independent action to prevent a miscarriage of justice under Rule 60(d). They relied on an expert report written by David B. Waisel, M.D., in support of their motion. Defendants, in turn, relied on an expert report by Dr. Mark Dershwitz, an anesthesiologist with a Ph.D. in pharmacology. The District Court denied both of Plaintiffs' motions. It found that a stay was not warranted because Plaintiffs had "not carried their burden to prove that they are likely to succeed on the merits of their Eighth Amendment claim." Jackson v. Danberg, 2011 WL 3205453, at *3 (D. Del. July 27, 2011). The District Court also denied Plaintiffs' motion to reopen under both Rules 60(b)(6) and 60(d), concluding that "the record at bar is insufficient to reopen the judgment entered by [it] in 2009." Id. at *4. Plaintiffs timely appealed the judgment of the District Court and filed an independent motion for a stay.

We denied the motion to stay on July 28, 2011, and affirmed the judgment of the District Court with an opinion to follow.*fn4 Following our decision, the Supreme Court denied certiorari, and Robert Jackson was executed just after midnight on July 29, 2011, by lethal injection.*fn5

II.

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) to consider the appeal by Plaintiffs from the District Court's denial of injunctive relief and under 28 U.S.C. § 1291 to consider the appeal by Plaintiffs from the District Court's denial of relief under Fed. R. Civ. P. 60(b) and (d). We review a district court's denial of a stay for abuse of discretion, which may be found where its conclusion includes the commission of a serious error of law or a mistake in considering the facts. Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990). We also review a district court's denial of a Rule 60(b) and (d) motion to reopen for abuse of discretion. Morris v. Horn, 187 F.3d 333, 341 (3d Cir. 1999).

III.

A. Stay

"[A] stay of execution is an equitable remedy" that "is not available as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts." Hill v. McDonough, 547 U.S. 573, 584 (2006). The standard for issuance of a stay is like that for issuance of a preliminary injunction, and requires consideration of four factors:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.

Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Republic of Phil. v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 1991). In assessing these factors, we underscore that "inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." Hill, 547 U.S. at 584.

Plaintiffs argue that because pentobarbital is not approved by the Food and Drug Administration ("FDA") for use as an anesthetic, its performance in the three-drug protocol, namely its manner and timing of inducing unconsciousness, is unknown and unpredictable and therefore violative of the Eighth Amendment. In support of their argument that pentobarbital renders the lethal injection protocol unconstitutional, Plaintiffs proffer the following evidence: (1) the opinion of Dr. David Waisel, an anesthesiologist at Harvard Law School, who, among other things, has reviewed eyewitness accounts and has concluded that Alabama prisoner Eddie Powell and Georgia prisoner Roy Blankenship were inadequately anesthetized by pentobarbital and suffered greatly from their executions; (2) the fact that pentobarbital is not approved by the FDA for use as an anesthetic; and (3) the fact that pentobarbital is less lipid-soluble than sodium thiopental and therefore does not cross the blood-brain barrier as quickly.

Plaintiffs' challenge to the DDOC's substitution of pentobarbital for sodium thiopental is governed by the Supreme Court's splintered decision in Baze. In Baze, the Supreme Court recognized "that subjecting individuals to a risk of future harm - not simply actually inflicting pain - can qualify as cruel and unusual punishment." 553 U.S. at 49. However, to constitute a violation of the Eighth Amendment, "the conditions presenting the risk must be 'sure or very likely to cause serious illness and needless suffering,' and give rise to 'sufficiently imminent dangers.'" Id. at 50 (quoting Helling, 509 U.S. at 34-35). "Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual." Id. Rather, a stay of execution may only be granted where "the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain . . . [and] that the risk is substantial when compared to the known and available alternatives." Id. at 61.

The District Court, applying the Baze principles, concluded that Plaintiffs failed to demonstrate that the substitution of pentobarbital resulted in a constitutionally unacceptable risk of pain and suffering. It noted that Delaware's protocol calls for the administration of five grams of pentobarbital, which on its own is a lethal dose according to Dr. Dershwitz. Moreover, the Delaware protocol calls for a consciousness check after two minutes have lapsed, followed by the administration of a second dose of pentobarbital if the inmate is still conscious after two minutes. Based upon these factual findings and procedural safeguards, the District Court concluded that Plaintiffs had not presented "affirmative evidence . . . that the administration of pentobarbital as the first drug in Delaware's three-drug protocol creates a demonstrated risk of severe pain, as required by the Supreme Court." Jackson, 2011 WL 3205453, at *3. In other words, the District Court concluded that Plaintiffs failed to demonstrate a likelihood of success on the merits and accordingly denied the stay.

After conducting our own searching review of the record, we conclude that the District Court did not abuse its discretion in denying Plaintiffs' motion for a stay. The District Court's factual findings are supported by the testimony of Defendants' expert, Dr. Dershwitz. The purpose of the anesthetic in Delaware's lethal injection protocol is to render the inmate unconscious before administration of the second and third drugs, and there is no affirmative evidence that pentobarbital fails to do this.*fn6

Indeed each court to consider this issue has uniformly held that the use of pentobarbital in lieu of sodium thiopental is constitutional.*fn7 See, e.g., DeYoung v. Owens, --- F.3d ---, 2011 WL 2899704, at *3 (11th Cir. July 20, 2011); Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011) (per curiam); Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010). For example, the United States Court of Appeals for the Tenth Circuit approved a protocol virtually identical to Delaware's after allowing an Oklahoma death-sentenced inmate to conduct discovery, submit an expert report, and hold an evidentiary hearing. Pavatt, 627 F.3d at 1338-40. In Pavatt, the district court considered evidence that: (1) the first step of Oklahoma's lethal injection protocol mandates the intravenous administration of five grams of pentobarbital; (2) the protocol requires the attending physician to ensure that the inmate is sufficiently unconscious prior to the administration of the paralytic agent; (3) the administration of a sufficient dose of pentobarbital will render an individual unconscious; (4) the defendant's expert witness, Dr. Dershwitz, testified that the five-gram dosage will ensure that the inmate does not feel the effects of the paralytic agent; and (5) Dr. Dershwitz responded to Dr. Waisel's testimony by pointing out that the use of pentobarbital to induce a barbiturate coma takes the patient to a state of unconsciousness beyond a normal clinical level of anesthesia.

Id. at 1339. At the conclusion of the hearing, the district court denied the motion for a stay, concluding that the prisoner failed to establish a substantial likelihood of success on the merits of his Eighth Amendment challenge.

On appeal, the Tenth Circuit held that the district court did not abuse its discretion in denying a stay. Specifically, the Tenth Circuit observed that Dr. Dershwitz had "substantially more clinical experience with the use of pentobarbital than Dr. Waisel." Id. at 1340. The court also noted the importance of the consciousness check to its analysis, and held that the inmate "failed to establish a substantial likelihood of success on the merits of his Eighth Amendment challenge to the . . . revised protocol." Id.; see also DeYoung, 2011 WL 2899704, at *6 ("DeYoung has wholly failed to show that pentobarbital, once fully administered and allowed to act, is ineffective as an anesthetic.");*fn8 Powell, 641 F.3d at 1257-58 (approving the substitution of pentobarbital for sodium thiopental). We agree with the Tenth Circuit's approach and likewise conclude that Plaintiffs cannot establish that pentobarbital is

"sure or very likely to cause serious illness and needless suffering." Baze, 553 U.S. at 50 (quoting Helling, 509 U.S. at 34-35).

Finally, Plaintiffs argue that the District Court misapplied the legal rubric of Baze by failing to engage in an additional inquiry with respect to their execution challenge: a comparative risk analysis. According to Plaintiffs, the District Court was required to consider the comparative risks of "known and available alternatives" to Delaware's pentobarbital three-drug protocol. Specifically, they argue the District Court should have considered the comparative risk of (1) a known anesthetic drug with a proven track record, for use as the first drug in the three-drug protocol, or

(2) a single-drug execution protocol.*fn9

Plaintiffs' argument misstates the law. "[A] condemned prisoner cannot successfully challenge a State's method of execution merely by showing a slightly or marginally safer alternative." Baze, 553 U.S. at 51. Rather, an inmate must first show that a state's current protocol creates a "demonstrated risk of severe pain." Id. at 61. Moreover, Delaware is not "compelled to change its lethal injection protocol simply because another state has elected to do so." Jackson I, 594 F.3d at 228. We recognize that the one-drug protocol is gaining support as an alternative to the three-drug lethal injection protocol, and we commend those states steadily striving to develop more humane alternatives to existing methods of execution. However, federal courts are not "boards of inquiry charged with determining 'best practices' for executions." Baze, 553 U.S. at 51.

"Pentobarbital is a barbiturate commonly used to euthanize terminally ill patients who seek death with dignity in states such as Oregon and Washington." Beaty v. Brewer, --- F.3d. ---, 2011 WL 2040916, at *4 (9th Cir. 2011) (denying rehearing en banc because inmate had no likelihood of success on Eighth Amendment claim based on pentobarbital). It has been used successfully for executions in at least four other states, and there is no evidence that it fails to render an inmate unconscious.*fn10 Id. The District Court did not abuse its discretion in finding that the use of pentobarbital did not create "a demonstrated risk of severe pain, as required by the Supreme Court." Jackson, 2011 WL 3205453, at *3. Thus, we affirm the District Court's denial of the stay.*fn11

B. 60(b)(6) and 60(d)

Rule 60(b)(6) relief from judgment is only granted in extraordinary circumstances. See Martinez-McBean v. Govt. of Virgin Islands, 562 F.2d 908, 911-12 (3d Cir. 1977).*fn12 It is available where the party seeking relief demonstrates that "extreme" and "unexpected" hardship will result absent such relief. United States v. Swift & Co., 286 U.S. 106, 119 (1932). Similarly, Rule 60(d) permits a court to entertain an independent action to relieve a party from a judgment in order to "prevent a grave miscarriage of justice." United States v. Beggerly, 524 U.S. 38, 47 (1998).

Plaintiffs claim that the addition of pentobarbital as an available alternative to sodium thiopental is such a circumstance. In making this argument, Plaintiffs urge that the use of sodium thiopental was central to our decision in Jackson I,and that the substitution of an alternative barbiturate undermines the very foundation of our decision.

In Jackson I, we held that Delaware's three-drug protocol did not violate the Eighth Amendment, and stated that "the proper administration of sodium thiopental is an indispensable link in the lethal injection chain for Eighth Amendment purposes, as it ensures that an inmate will not suffer under the effects of the second two drugs." 594 F.3d at 225. However, the import of both Baze and Jackson I is that use of an effective anesthetic as the first drug in a three-drug protocol is required to satisfy the Eighth Amendment. In other words, "[t]he proper administration of the first drug [must] ensure[] that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs." Baze, 553 U.S. at 44.

We cannot say that the District Court's finding that pentobarbital is an effective anesthetic for purposes of the three-drug lethal injection is clearly erroneous, particularly based on its demonstrated uses and the testimony of Dr. Dershwitz. Accordingly, we conclude that the District Court did not abuse its discretion in denying Plaintiffs' motion to reopen, and we agree that "the substitution of pentobarbital for sodium thiopental does not constitute a factual change which undermines the foundation of [the] prior ruling," necessitating independent action under either Rule 60(b)(6) or 60(d). Jackson, 2011 WL 3205453, at *4.*fn13

IV.

For all of these reasons, we conclude that Plaintiffs have not demonstrated a substantial likelihood of success on the merits of their claims, and that the District Court did not abuse its discretion in denying a stay of Jackson's execution and Plaintiffs' motion to reopen. Accordingly, we will affirm.


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