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Jones v. Kelley

United States District Court, E.D. Arkansas, Little Rock Division

April 21, 2017




          Kristine G. Baker United States District Judge

         Plaintiff Jack Harold Jones 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. Jones 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. Mr. Jones, who is scheduled to be executed on April 24, 2017, filed this action along with a motion for a preliminary injunction on April 17, 2017. Before the Court is Mr. Jones' motion for a preliminary injunction (Dkt. No. 8).

         The Court held an evidentiary hearing on Mr. Jones' motion for a preliminary injunction on April 21, 2017. The parties agreed to incorporate the record and all exhibits received during the Court's evidentiary hearings conducted in McGehee. The Court heard additional testimony and received additional exhibits related to Mr. Jones' as applied challenge at the April 21, 2017, hearing. Mr. Jones called as witnesses Dr. Joel Zivot, who testified at the Court's hearing in McGehee, as well as Director Wendy Kelley. Dr. Zivot reviewed all of Mr. Jones' medical records and conducted an in person examination of Mr. Jones on March 23, 2017. In reaching its determination on Mr. Jones' motion for a preliminary injunction, the Court considered all of the testimony and evidence presented at the Court's evidentiary hearings in McGehee, the attachments to the parties' pleadings and filings in this action, and the testimony and evidence offered at the Court's evidentiary hearing in this action.

         I. Legal Standard

         When determining whether to grant a motion for preliminary injunction, this Court considers: (1) the threat of irreparable harm to the movant; (2) the movant's likelihood of success on the merits; (3) the balance between the harm to the movant and the injury that granting an injunction would cause other interested parties; and (4) the public interest. Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 114 (8th Cir. 1981)). In cases where condemned inmates seek “time to challenge the manner in which the State plans to execute them[, ]” plaintiffs must show “a significant possibility of success on the merits.” Jones v. Hobbs, 604 F.3d 580, 581 (8th Cir. 2010) (internal quotation marks omitted) (quoting Hill v. McDonough, 547 U.S. 573, 584 (2006)). Preliminary injunctive relief is an extraordinary remedy, and the party seeking such relief bears the burden of establishing the four Dataphase factors. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The focus is on “whether the balance of the equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Id. Furthermore, before granting a request for stay of an execution, a “district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim, which counsels against the entry of an equitable remedy.” Nooner v. Norris, 491 F.3d 804, 808 (8th Cir. 2007) (quoting Nelson v. Campbell, 541 U.S. 637, 649-50 (2004) (internal quotation marks omitted)).

         II. Discussion

         The Court denies Mr. Jones' motion for a preliminary injunction (Dkt. No. 8). 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, 541 U.S. at 650). 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).

         Because that standard applies to as-applied challenges, and given the Eighth Circuit's decision in McGehee, which is binding on this Court, this Court feels compelled to observe that Mr. Jones' “use of ‘piecemeal litigation' and dilatory tactics is sufficient reason by itself to deny a stay.” McGehee v. Hutchinson, No. 17-1804, 2017 WL 1404693, at *2 (8th Cir. Apr. 17, 2017), cert. denied (Apr. 21, 2017) (per curiam) (quoting Hill, 547 U.S. at 584-85). This Court recognizes, however, that the Eighth Circuit may confine that determination to the facial challenge in McGehee and except from it the as-applied challenge here, given the nature of the as applied inquiry into an inmate's specific medical condition when execution is imminent. See Bucklew v. Lombardi, 783 F.3d 1120, 1127 (8th Cir. 2015) (citing Siebert v. Allen, 506 F.3d 1047, 1050 (11th Cir. 2007)).

         As a result, the Court will proceed with its analysis. The Court also finds that, in the light of the Eighth Circuit's decision in McGehee, Mr. Jones failed to offer sufficient evidence to show that there is a significant possibility that he will succeed on the merits of his method of execution claim.

         A. Diligence In Bringing This Action

         On April 18, 2017, the Court entered a Show Cause Order, directing Mr. Jones 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. 12). Mr. Jones filed a timely response to the Court's Show Cause Order (Dkt. No. 16). Mr. Jones argues that he was not dilatory in filing his as applied claim on April 17, 2017, because:

1. His 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 1-2); and
2. His medical condition is fluid and has gotten worse, meaning ÔÇťassessment of the risks of the lethal injection protocol should be assessed at the time his ...

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