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Nooner v. Norris

August 9, 2007

TERRICK TERRELL NOONER, PLAINTIFF AND DON WILLIAMS DAVIS INTERVENOR PLAINTIFF AND JACK HAROLD, JONES, JR. INTERVENOR PLAINTIFF
v.
LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION; GAYLON LAY, WARDEN, ARKANSAS DEPARTMENT OF CORRECTION; WENDY KELLY, DEPUTY DIRECTOR FOR HEALTH AND CORRECTIONAL PROGRAMS; JOHN BYUS; ADMINISTRATOR, CORRECTIONAL MEDICAL SERVICES, ARKANSAS DEPARTMENT OF CORRECTION; AND OTHER UNKNOWN EMPLOYEES, ARKANSAS DEPARTMENT OF CORRECTION DEFENDANTS



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

ORDER

Before the Court are (1) Plaintiff Terrick Terrell Nooner's motion for expedited discovery (docket entries #67, #69), Defendants' response in opposition (docket entry #76), and Nooner's reply (docket entry #83) and (2) Defendants' motion for consolidation (docket entry #78) and Frank Williams response in opposition to consolidation (docket entry #84) . After careful consideration, and for the reasons that follow, Nooner's motion will be denied, and Defendants' motion will be granted.

I. Background

On May 1, 2006, Plaintiff Terrick Terrell Nooner ("Nooner"), an Arkansas death row inmate, commenced this action under 42 U.S.C. § 1983, claiming that the State's lethal injection protocol presents a unnecessary risk of conscious suffering and extreme pain, amounting to cruel and unusual punishment prohibited under the Eighth Amendment. On May 4, 2006, death row inmate Don William Davis filed a motion to intervene as a party plaintiff. On May 11, 2006, Governor Mike Huckabee scheduled Davis's execution for July 5, 2006, and on May 26, 2006, the Court granted Davis's motion to intervene. Subsequently, the Court granted Davis's motion for a preliminary injunction staying his execution in order to permit him to litigate his challenge to the lethal injection protocol.

Defendants appealed. On November 22, 2006, while the appeal was pending, death row inmate Jack Harold Jones filed a motion to intervene as a party plaintiff, and the Court granted his motion on December 1, 2006. See docket entries #42, #44. On July 9, 2007, the Eighth Circuit issued an opinion vacating Davis's stay of execution, concluding that this Court applied the incorrect legal standard for determining whether Davis had unnecessarily delayed bringing his claim.*fn1

On July 11, 2007, Plaintiff Nooner filed a motion for expedited discovery. He argues that "the ordinary timetables for discovery will be inadequate to enable him to complete the necessary discovery and obtain adjudication of his constitutional claims on their merits before his lawsuit may be mooted by his death . . . ." Docket entry #67, at 4. Nooner proposes that (1) discovery proceed immediately; (2) the parties serve discovery requests and related objections, responses, and motions to compel personally, by fax, or by electronic mail; (3) the parties serve objections to discovery requests within one day of service and serve responses to requests within seven days of service; and (4) the parties respond to motions to compel within one day after filing of the motion.

In support of his motion, Nooner asserts that the Eighth Circuit's decision in Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007), "renders inescapable" the conclusion that Arkansas's procedure for execution by lethal injection violates the Constitution. Nooner states that in Taylor, the Eighth Circuit affirmed the constitutionality of Missouri's lethal injection protocol only after finding that it includes certain safeguards that, according to Nooner, are not included in Arkansas's protocol.

On July 17, 2007, Defendants filed a motion for summary judgment and a response in opposition to Nooner's motion for expedited discovery. In support of their motion for summary judgment, Defendants submit the declaration of Larry Norris, Director of the Arkansas Department of Correction ("ADC"), stating that the ADC amended its lethal injection protocol on July 16, 2007. Defendants assert that the amended protocol*fn2 is substantively similar in all material respects to the Missouri protocol upheld in Taylor, they are entitled to judgment as a matter of law, and no discovery is warranted or necessary.

Defendants state that in the event that the Court finds that discovery is warranted, they would make a diligent effort to gather any available, discoverable information sought within the time permitted under the Federal Rules of Civil Procedure. However, Defendants assert that given the size and number of Nooner's discovery requests, his proposed schedule for expedited discovery is unworkable. On July 12, 2007, Nooner served Defendants 26 requests for production of documents, and on July 13, 2007, he served 24 interrogatories, many of which contain multiple subparts. See docket entry #76, Exs. A, B. Defendants note that Nooner waited 14 months after commencing this lawsuit to seek discovery.

On July 30, 2007, Plaintiffs filed a response in opposition to summary judgment (docket entries #80, #81, #82). Plaintiffs argue that Defendants' motion should be denied on two independent grounds: (1) Plaintiffs have had no opportunity to conduct discovery and (2) even on the record as it currently stands, there are numerous genuine issues of material fact which preclude the entry of summary judgment. Along with Plaintiffs' response, Nooner's counsel Julie Brain filed an affidavit pursuant to Federal Rule of Civil Procedure 56(f), in which she testifies that Plaintiffs cannot fully respond to Defendants' motion for summary judgment "because Plaintiffs have not received any discovery from Defendants, who have exclusive possession of exclusive facts that will be uncovered through discovery, and because Plaintiffs have not had adequate time to investigate and research the impact of [the ADC's amended protocol]." Docket entry #80, Ex. 1.

On July 31, 2007, Governor Beebe scheduled Nooner's execution for September 18, 2007. On August 1, 2007, Nooner replied to Defendants' response in opposition to expedited discovery (docket entry #83). Nooner contends that by choosing to schedule his execution at this time, "Defendants have created an exigency with regard to the completion of the discovery process that precludes the adoption of the leisurely pace that they request." Nooner states in his reply that he will move the Court for a stay of execution pending resolution of this case on the merits. He states: "In the meantime, however, expedited discovery is necessary, both to hasten progress towards the ultimate resolution of this matter and to enable Mr. Nooner to discover additional evidence and information to support his request for a stay." On August 8, 2007, Nooner filed a motion for a stay of execution (docket entry #87).

II. Motion for Expedited Discovery

As a threshold matter, the Court acknowledges that it neglected to enter a scheduling order in this case. Pursuant to the Court's normal procedure for prisoner petitions challenging conditions of confinement, this case was automatically referred to a magistrate judge for recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). However, given the unique issues presented in this case, the Court terminated the referral to a magistrate judge. Normally, in referred conditions of confinement cases, the magistrate judge enters a scheduling order regarding discovery and deadlines for dispositive motions. But in this case, the Court terminated the referral before a scheduling order could be entered, and the Court thereafter failed to notice the absence of a scheduling order.

Nooner suggests that he did not pursue discovery until recently because the Court failed to enter a scheduling order.*fn3 However, lack of a scheduling order did not prevent counsel from conferring and developing a discovery plan as required under Federal Rule of Civil Procedure 26(f);*fn4 nor did it prevent Nooner from requesting that the Court enter a scheduling order. See Nickens v. White, 622 F.2d 967, 971 (8th Cir. 1980)("We think that this requirement for diligent ...


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