Darryl Durr v. Ted Strickland , 602 F.3d 788 ( 2010 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0109p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DARRYL M DURR,
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Plaintiff-Appellant,
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No. 10-3464
v.
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TED STRICKLAND, et al.,
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Defendants-Appellees.
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Filed: April 18, 2010
Before: BATCHELDER, Chief Judge; SUHRHEINRICH and COLE, Circuit Judges.
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ORDER
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Darryl Durr, an Ohio inmate scheduled to be executed on April 20, 2010, pursuant
to Ohio’s lethal injection protocol, appeals from the district court’s order granting the
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Defendants’ motion to dismiss his complaint. The complaint alleged that the use of
sodium thiopental, or in the alternative midazolam and hydromorphone, as a means of
execution violate the Federal Controlled Substances Act, 21 U.S.C. §§ 801 et seq., the
Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 et seq., and various federal
regulations associated with these Acts. The complaint sought a declaration that an
execution using these drugs without a prescription from a licensed medical practitioner
and distributed without proper authorization violates these acts. On April 15, 2010,
Judge Frost ruled held that declaratory relief was unavailable to Durr because no private
right of action exists under either act. Further, even assuming that Durr could pursue
such a cause of action, he failed to allege any facts to support his claim that Defendants’
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Durr also seeks to exceed the twenty-page limitations set forth in Fed. R. App. 27(d)(2). This
request is granted, and we have considered this material.
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No. 10-3464 Durr v. Strickland, et al. Page 2
failure to adhere to federal law subjects him to a risk of inhumane execution or to
suggest that the declaratory judgment that he seeks would deter the State from
proceeding with his execution.
Having reviewed the parties’ submissions, the record, and the applicable law, we
agree with Judge Frost that this action for declaratory relief is not the proper mechanism
for seeking injunctive relief from execution. We therefore AFFIRM the order of Judge
Frost, for the reasons stated in his April 15, 2010 opinion and order. SO ORDERED.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
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Clerk