United States District Court, E.D. Arkansas, Little Rock Division
Kristine G. Baker United States District Judge.
Stacey Eugene Johnson brings this “as applied”
challenge under 42 U.S.C. § 1983 and the Eighth
Amendment of the United States Constitution to the state of
Arkansas's lethal injection protocol. Mr. Johnson and
eight other inmates serving on death row in Arkansas brought
a “facial” challenge to Arkansas's lethal
injection protocol in a separate action before this Court.
See McGehee v. Hutchinson¸ No. 4:17-cv-00179
(E.D. Ark. filed March 27, 2017). Plaintiffs filed
McGehee on March 27, 2017. A complete procedural
history of the events leading to the filing of the complaint
in McGehee is included in the Court's Order on
plaintiffs' motion for a preliminary injunction, and the
Court adopts that history for the purposes of this Order.
McGehee v. Hutchinson¸ No. 4:17-cv-00179 (E.D.
Ark. filed Apr. 15, 2017) (order granting motion for
permitting limited expedited discovery and conducting a
four-day evidentiary hearing, the Court granted
plaintiffs' motion for a preliminary injunction and
stayed plaintiffs' executions. On April 17, 2017, the
Eighth Circuit Court of Appeals, sitting en banc,
concluded that this Court abused its discretion in staying
the executions and granted the state of Arkansas's motion
to vacate the stays. See McGehee v. Hutchinson, No.
12-1804, slip op. at *2 (8th Cir. Apr. 17, 2017) (per
curiam). In its decision, the Eighth Circuit found that
“the prisoners' use of ‘piecemeal
litigation' and dilatory tactics is sufficient reason by
itself to deny a stay.” Id., at *3 (quoting
Hill v. McDonough, 547 U.S. 573, 584-85 (2006)).
Johnson, who is scheduled to be executed on April 20, 2017,
filed this action on April 17, 2017. In this action, Mr.
Johnson claims that, due to his “unique and specific
medical conditions[, ] . . . there is a substantial and
unjustifiable risk that Arkansas's lethal-injection
protocol will affect Mr. Johnson differently than an average
healthy inmate and will cause severe pain and serious harm to
him” (Dkt. No. 2, at 1). In his complaint, Mr. Johnson
states that he “suffers from multiple health
conditions, including hypertension, angina and probable lung
and heart disease” (Id., at 2). Mr. Johnson
attaches a declaration of his expert witness, Joel Zivot,
M.D., dated April 14, 2017 (Id., at 16-21). Dr.
Zivot performed a physical examination of Mr. Johnson on
March 23, 2017 (Id., at 18). Dr. Zivot testified as
a plaintiffs' expert in McGehee.
April 18, 2017, the Court entered a Show Cause Order,
directing Mr. Johnson to show cause why this Court should not
find, consistent with the Eighth Circuit's decision in
McGehee, that this action must be dismissed (Dkt.
No. 11). Mr. Johnson filed a timely response to the
Court's Show Cause Order (Dkt. No. 15).
with and based upon the Eighth Circuit's decision in
McGehee, the Court finds that Mr. Johnson was not
diligent in bringing this action and rejects Mr.
Johnson's arguments to the contrary. In his response to
the Court's Show Cause Order, Mr. Johnson argues that he
was not dilatory in filing his as applied claim on April 17,
as-applied claim is analogous to a competency claim under
Ford v. Wainwright, 477 U.S. 399 (1986), meaning he
“was not dilatory in bringing the instant action
because an as-applied challenge should ripen with an
execution date” (Id., at 1); and
medical condition is fluid and has gotten worse, meaning
“assessment of the risks of the lethal injection
protocol should be assessed at the time his execution is
imminent” (Id., at 2).
assuming that Mr. Johnson is correct that his claim did not
become ripe until Governor Hutchinson set his execution date
on February 27, 2017, and that his physical condition should
be evaluated when execution is imminent, the Court finds
that, consistent with and based upon the Eighth Circuit's
decision in McGehee, Mr. Johnson was not diligent in
bringing this action. Mr. Johnson filed a facial challenge to
the lethal injection protocol on March 27, 2017. Dr. Zivot
examined Mr. Johnson on March 23, 2017, before the complaint
in McGehee was filed (Dkt. No. 15, at 18). In the
light of the Eighth Circuit's decision in
McGehee and based upon that decision, the Court
finds that Mr. Johnson could and should have brought his as
applied claim earlier than April 17, 2017. He provides no
good reason for why his as applied claim could not have been
included in McGehee or been filed at the same time
as McGehee. Consistent with and based on the Eighth
Circuit's decision in McGehee, the Court finds
that Mr. Johnson has split his claims and has not been
diligent in pursuing his as applied claims.
Court determines that a hearing on this issue is unwarranted.
A court considering a stay of execution must “apply
‘a strong equitable presumption against the grant of a
stay where a claim could have been brought at such a time as
to allow consideration of the merits without requiring entry
of a stay.'” Hill, 547 U.S. at 584
(quoting Nelson v. Campbell, 541 U.S. 637, 650
(2004)). That same equitable standard applies to this
as-applied challenge. See Johnson v. Lombardi, 809
F.3d 388, 389 (8th Cir. 2015) (reciting the Hill
standard when denying a motion for stay of execution based on
an as-applied challenge to the method of execution).
Consistent with and based on the Eighth Circuit's
decision in McGehee the Court finds that this
“strong equitable presumption” weighs against
granting Mr. Johnson declaratory and injunctive relief in
this action. Consistent with and based on the Eighth
Circuit's decision in McGehee, the Court ...