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

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 ...


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