The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Before the Court are (1) Plaintiff Terrick Terrell Nooner's motion for a preliminary injunction or stay of execution (docket entry #87), Defendants' response in opposition (docket entry #90), and Nooner's reply (docket entry #91) and (2) Plaintiff Jack Harold Jones's motion for a preliminary injunction or stay of execution. After careful consideration, and for reasons that follow, Plaintiffs' motions will be denied.
This § 1983 action was originally filed on May 1, 2006 by Arkansas death row inmate Terrick Terrell Nooner ("Nooner") against Arkansas Department of Correction ("ADC") officials in their official capacities. In the complaint, Nooner claims that the ADC's lethal injection protocol violates the Eighth Amendment because it presents an unnecessary risk of extreme pain and because use of the protocol demonstrates deliberate indifference to condemned inmates' health and safety.*fn1
The following events have occurred since Nooner filed suit. On May 4, 2006, death row inmate Don William Davis ("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. On June 26, 2006, the Court granted Davis's motion for a stay of execution in order to permit him to litigate his challenge to the lethal injection protocol.
On June 30, 2006, Defendants appealed the order granting Davis a stay of execution. 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. During the pendency of Defendants' appeal, a period of 12 months, Nooner made no discovery requests and took no steps toward prosecuting his claims.*fn2
On July 9, 2007, the Eighth Circuit issued an opinion vacating Davis's stay of execution on the ground that this Court applied the wrong standard in determining whether Davis had unnecessarily delayed bringing his claim. See Nooner v. Norris, 491 F.3d 804 (8th Cir. 2007).
On July 11, 2007, Plaintiff Nooner filed a motion for expedited discovery, and on July 12, 2007, he served Defendants with discovery requests.
On July 17, 2007, Defendants filed a motion for summary judgment. In support of their motion, Defendants submitted 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*fn3 is substantively similar in all material respects to the Missouri protocol upheld in Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007); they are entitled to judgment as a matter of law; and no discovery is warranted or necessary. On July 30, 2007, Plaintiffs filed a response in opposition to summary judgment. Additionally, Nooner's counsel Julie Brain filed an affidavit pursuant to Federal Rule of Civil Procedure 56(f).
On July 31, 2007, Governor Beebe scheduled Nooner's execution for September 18, 2007, and on August 8, 2007, Nooner filed a motion for a stay of execution.
On August 9, 2007, the Court entered an order denying Nooner's motion for expedited discovery. Additionally, the Court consolidated with this case a separate case filed by Arkansas death row inmate Frank Williams challenging Arkansas's lethal injection protocol.
On August 21, 2007, Governor Mike Beebe set an October 16, 2007 execution date for Jones. On August 22, 2007, Defendants responded in opposition to Nooner's motion for a stay of execution, and Nooner filed a reply on August 27, 2007. On September 4, 2007, Jones filed a motion for a stay of execution. The time for a response to Jones's motion has not expired, and Defendants have not filed a response.
II. Arkansas's Lethal Injection Protocol
Since 1983, Arkansas's lethal injection statute has provided that the "punishment of death is to be administered by a continuous intravenous injection of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent until the defendant's death is pronounced according to accepted standards of medical practice." Ark. Code Ann. § 5-4-617(a)(1). Arkansas law gives Director Norris the responsibility to determine the substances to be administered and the procedures to be used in any execution. See Ark. Code Ann. § 5-4-617(a)(2).
When Nooner initiated this lawsuit, Arkansas's lethal-injection protocol called for administering three chemicals, each followed by a saline flush, through an intravenous line ("IV") in the following amounts and order: (1) 2-grams of Sodium Pentothal (also known as thiopental), administered to cause unconsciousness; (2) 2, 50-milligram injections of pancuronium bromide, administered to cause paralysis; and (3) up to 3, 50-milliequivalent injections of potassium chloride, administered to stop the heart.*fn4 Injections are administered by way of control devices located in a control room, separate from the execution chamber. The control devices are connected, by extension tubing, to IV catheters inserted into each arm of the condemned inmate. The catheters are inserted by an IV team, and the injections are administered by executioners, whose identities are kept secret. The original protocol, as written, contained no provision requiring that the IV team or other personnel involved in the execution process have any type of medical training or certification.
On July 16, 2007, Norris amended the written protocol. By declaration, Norris testifies as follows:
On or about June 26, 2007, and July 12, 2007, I consulted with Mark Dershwitz, M.D., Ph.D. to determine what changes, if any, to Arkansas's lethal injection protocol would further reduce what I considered to be the already minimal possibility that a condemned inmate would experience unnecessary pain during an execution in the future. Based on those consultations with Dr. Dershwitz, my own previous observations of lethal injection executions, and discussions that I have had over the years with other correctional professionals concerning lethal injection executions, I amended the ADC's lethal injection protocol on July 16, 2007.
The amended protocol, like the original, makes the ADC Deputy Director for Health and Correctional Programs ("Deputy Director") or her designee responsible for carrying out or supervising many of the activities included in the execution procedure. The protocol states: "Unless otherwise stated, the Deputy Director, or the designee, shall be healthcare trained, educated, and/or experienced in matters related to the establishment and monitoring of IVs, the mixing and administration of lethal chemicals, and assessing the presence or absence of consciousness." Docket entry #74, Ex. #2 (Lethal Injection Procedure, Section I.1.).
The amended protocol provides that the Deputy Director or her designee "shall verify as to type and concentration, and thereafter supervise the mixing or reconstituting of the [lethal-injection] chemicals in such a manner as will meet lethal injection requirements [set forth in Section IV]." Id. The mixed chemicals are transferred to appropriate syringes, which are placed in lethal injection drug box, which is "secured." The protocol provides that the Deputy Director or her designee "shall maintain personal, physical custody of the lethal injection drug box and physically convey the box to the Cummins Unit for secure storage in the institutional vault until such time as it is delivered to the execution chamber for use." Id. (Section I.3.)
The protocol, in Section IV., identifies the contents of the lethal injection drug box and the administration sequence and chemical makeup of each lethal chemical used as follows:
LABELED/MARKED CONTENTS #1/#2 Sodium Pentothal, 3.0 grams (two (2) syringes of 1.5 grams in 60 cc) #3/#6 Normal Saline, 50 cc each #4/#5 Pancuronium Bromide, 100 mg (two (2) syringes of 50 mg in 50 cc) #7/#8 Potassium Chloride, 240 mEq (two (2) syringes of 120 mEq in 60 cc)
Back up syringes: #B1/B2 Sodium Pentothal, 3.0 grams (two (2) syringes of 1.5 grams in 60 cc) #B3 Normal Saline, 50 cc
Pursuant to the protocol, on the eve of execution, the executioners enter the injection room and inventory the lethal injection drug box to ensure that all lethal chemicals are accounted for. The protocol provides that "if needed," prior to the day of execution, the Deputy Director or her designee will orient the executioners to the ADC's lethal injection procedure. See id. (Section I.4.).
Before the IV team initiates IV lines, the Deputy Director or her designee affixes cardiac monitor leads to the condemned inmate at standard 3-lead positions. Additionally, the execution gurney is positioned in the death chamber in a manner that allows the Deputy Director or her designee and the ...