Terrick Nooner v. Larry Norris ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_______________
No. 08-2978
_______________
Terrick Terrell Nooner, *
*
Appellant, *
*
Don William Davis; *
Jack Harold Jones, Jr., *
*
Intervenor Plaintiffs-Appellants, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, in his official capacity *
as Director, Arkansas Department of *
Correction; Gaylon Lay, in his official *
capacity as Warden, Arkansas *
Department of Correction, Cummins *
Unit; Wendy Kelly, in her official *
capacity as Deputy Director for Health *
and Correctional Programs, Arkansas *
Department of Correction; John Byus, *
in his official capacity as Administrator, *
Correctional Medical Services, *
Arkansas Department of Correction; *
Does, 1-50, unknown executioners, *
in their official capacities as employees *
and/or agents of the Arkansas *
Department of Correction, *
*
Appellees, *
------------------------------
Frank Williams, Jr., *
*
Appellant, *
*
v. *
*
Larry Norris, in his official capacity *
as Director, Arkansas Department of *
Correction; Gaylon Lay, in his official *
capacity as Warden, Arkansas *
Department of Correction, Cummins *
Unit; Wendy Kelly, in her official *
capacity as Deputy Director for Health *
and Correctional Programs, Arkansas *
Department of Correction; John Byus, *
in his official capacity as Administrator, *
Correctional Medical Services, *
Arkansas Department of Correction; *
Does, 1-50, unknown executioners, *
in their official capacities as employees *
and/or agents of the Arkansas *
Department of Correction, *
*
Appellees. *
___________
Submitted: September 24, 2009
Filed: February 8, 2010
___________
Before MELLOY, GRUENDER and BENTON, Circuit Judges.
___________
GRUENDER, Circuit Judge.
Terrick Terrell Nooner, Don William Davis, Jack Harold Jones and Frank
Williams, Jr. (collectively, “the Inmates”) were each convicted of capital murder in
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Arkansas. Their convictions have been affirmed, their petitions for post-conviction
relief have been denied, and they await execution by the State of Arkansas. In this 42
U.S.C. § 1983 lawsuit against Larry Norris, Director of the Arkansas Department of
Correction, and other corrections employees (collectively, “the ADC”), the Inmates
challenge the constitutionality of Arkansas’s protocol for execution by lethal injection.
The district court1 granted the ADC’s motion for summary judgment, and the Inmates
now appeal. For the following reasons, we affirm.
I. BACKGROUND
Nooner filed his lawsuit on May 1, 2006. Davis and Jones filed motions to
intervene as party plaintiffs, which the district court granted on May 26, 2006, and
December 1, 2006, respectively. On August 9, 2007, the district court ordered the
case consolidated with a similar lawsuit filed by Williams on July 11, 2007.
On June 26, 2006, the district court granted Davis a preliminary injunction,
staying his execution. The ADC appealed, and on July 9, 2007, we vacated the
preliminary injunction and stay of execution. Nooner v. Norris, 491 F.3d 804, 806
(8th Cir. 2007). The next day, the Inmates sought discovery for the first time by filing
a motion for expedited discovery. The district court denied the Inmates’ motion for
expedited discovery on August 9, 2007, but the ADC nevertheless produced more than
300 pages of documents in response. The ADC moved for summary judgment,
arguing that the Inmates had failed to establish a genuine issue of material fact about
the constitutionality of Arkansas’s lethal injection protocol. The Inmates sought
shelter under Federal Rule of Civil Procedure 56(f), claiming that they lacked access
to the facts necessary to oppose the ADC’s motion for summary judgment and that
they needed further discovery.
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
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Before the district court ruled on the ADC’s motion for summary judgment, the
Supreme Court granted certiorari in Baze v. Rees, 552 U.S. 945 (2007), a case
challenging the constitutionality of Kentucky’s lethal injection protocol. Accordingly,
the district court denied the ADC’s motion for summary judgment without prejudice
and stayed and administratively terminated the Inmates’ lawsuit pending the outcome
in Baze.
The Supreme Court issued its decision in Baze on April 16, 2008, upholding
Kentucky’s lethal injection protocol. 553 U.S. 35, 128 S. Ct. 1520 (2008). The
Inmates successfully moved to reopen their case on May 15, 2008. The ADC
amended its lethal injection protocol on May 22, 2008, and moved for summary
judgment on June 4, 2008. The Inmates opposed this motion but did not renew their
request for a continuance to obtain further discovery under Rule 56(f). On August 5,
2008, the district court granted the ADC’s motion for summary judgment.
Under Arkansas law, the Director of the ADC is responsible for determining the
policies and procedures followed by the ADC to execute prisoners by lethal injection.
Ark. Code Ann. § 5-4-617(a)(4). The parties refer to the set of execution instructions
he has developed—and revised—as the Arkansas lethal injection protocol.
Ray Hobbs, Chief Deputy Director of the ADC, submitted an affidavit (“the
Hobbs affidavit”) dated July 28, 2008, stating that he was authorized to make
statements about the protocol on behalf of the ADC. The Inmates have not argued
that Hobbs acted ultra vires in submitting this affidavit, and the ADC specifically
stated at oral argument that it considers the statements in the Hobbs affidavit to be
binding on the ADC. Because the ADC may amend the protocol at the Director’s
discretion, see Ark. Code Ann. § 5-4-617, we accept the Hobbs affidavit as a written
addendum to the May 22, 2008 protocol.
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Under the protocol, the ADC’s Deputy Director for Health and Correctional
Programs is primarily responsible for supervising executions. The Deputy Director
must 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.” The protocol
allows a designee to perform the functions of the Deputy Director, but the designee
must meet the same qualifications. If needed, the Deputy Director provides an
orientation for the executioners before each execution. She also selects the IV team,
which is responsible for establishing intravenous infusion sites in condemned
prisoners. Each member of the IV team must have at least two years of professional
experience as an emergency medical technician, nurse, physician assistant or
physician.
Arkansas administers the same combination of lethal chemicals to execute
prisoners that at least thirty other states use: sodium pentothal, pancuronium bromide
and potassium chloride. See Baze, 128 S. Ct. at 1527 (plurality opinion).2 Before
each execution, the Deputy Director is responsible for ensuring that the lethal
chemicals are mixed properly and transferred to conspicuously numbered syringes that
are secured in a carrying case.3
2
All references to Baze, unless otherwise indicated, are to the plurality opinion
written by Chief Justice Roberts.
3
The protocol identifies the label and contents of each syringe as follows:
SYRINGE
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)
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Arkansas executes condemned prisoners in an execution chamber that is
adjoined by a witness room and a control room. There is a large window between the
execution chamber and the witness room that can be covered by a curtain. From the
control room, the executioners can see into the execution chamber through a one-way
mirror. The protocol directs the Deputy Director to bring the condemned prisoner into
the execution chamber strapped to a gurney, which is positioned directly in front of
the one-way mirror so that the Deputy Director and the executioners can observe the
IV infusion sites and the prisoner’s face throughout the execution. The Deputy
Director affixes cardiac monitor leads to the prisoner and then summons the IV team.
The IV team establishes two independent IV infusion sites, preferably one in
each of the prisoner’s arms. If two sites cannot be established, the protocol directs the
Deputy Director to dismiss the IV team and “summon trained, educated, and
experienced person(s) necessary to establish a primary IV line as a peripheral line or
as a central venous line.” After the infusion sites are established, the IV team
connects the IV lines to the control room with extension tubing, allowing the
executioners to administer the lethal chemicals from the control room. When the
warden authorizes the executioners to begin injecting the lethal chemicals, the curtain
between the execution chamber and the witness room is opened.
The executioners first inject two syringes containing three grams of sodium
pentothal, a barbiturate, into the primary IV line. The protocol requires the Deputy
Director to wait at least three minutes after the executioners begin the injection of
sodium pentothal before directing the executioners to administer the contents of the
#7/#8 Potassium Chloride, 240 mEq (two (2) syringes
of 120 mEq in 60 cc)
Backup Syringes
#B1/B2 Sodium Pentothal, 3.0 grams (two (2) syringes
of 1.5 grams in 60 cc)
#B3 Normal Saline, 50 cc
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remaining syringes. During this time, the protocol instructs the Deputy Director to
use standard medical techniques, “such as checking for movement, opened eyes,
eyelash reflex, and response to verbal commands and physical stimuli,” to verify that
the prisoner has been rendered completely unconscious. After three minutes have
elapsed and the Deputy Director verifies that the prisoner is completely unconscious,
the protocol instructs the executioners to inject a syringe of normal saline to flush the
IV line, followed by two syringes containing 100 mg of pancuronium bromide, which
paralyzes the prisoner’s muscles and stops respiration. After injecting another syringe
of saline, the executioners administer two syringes containing 240 mEq of potassium
chloride, which induces cardiac arrest.
The protocol requires the Deputy Director to monitor the primary IV infusion
site continuously and to reduce the flow of lethal chemicals or redirect them to the
alternate infusion site if she suspects a problem. The curtain between the witness
room and the execution chamber is closed if an infusion problem develops but
otherwise remains open during the administration of lethal chemicals. After the
cardiac monitors display a flat-line, a coroner is summoned to pronounce death.
Prison officials then close the curtain to the witness room and escort the witnesses
from the building.
The Inmates argue that the district court abused its discretion in finding that the
case is ripe for summary judgment. They also argue that the district court erred in
granting summary judgment to the ADC because the record establishes genuine issues
of material fact about whether Arkansas’s lethal injection protocol is unconstitutional.
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II. DISCUSSION
The Eighth Amendment, applicable to the states through the Fourteenth
Amendment, prohibits cruel and unusual execution procedures. See Baze, 128 S. Ct.
at 1530. Challenges to the constitutionality of a state’s lethal injection procedures are
cognizable under 42 U.S.C. § 1983. Hill v. McDonough, 547 U.S. 573, 576 (2006).
“We begin with the principle . . . that capital punishment is constitutional.”
Baze, 128 S. Ct. at 1529 (citing Gregg v. Georgia, 428 U.S. 153, 177 (1976) (plurality
opinion)). “It necessarily follows that there must be a means of carrying it out.” Id.
“[T]he Constitution does not demand the avoidance of all risk of pain in carrying out
executions.” Id. To establish a violation of the Eighth Amendment, an execution
procedure must be “‘sure or very likely to cause . . . needless suffering,’ and give rise
to ‘sufficiently imminent dangers.’” Id. at 1531 (quoting Helling v. McKinney, 509
U.S. 25, 33-34 (1993)). “[T]o prevail on such a claim there must be a ‘substantial risk
of serious harm,’ . . . that prevents prison officials from pleading that they were
‘subjectively blameless for purposes of the Eighth Amendment.’” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 842, 846 and n.9 (1994)). “The mere fact ‘an
execution method may result in pain, either by accident or as an inescapable
consequence of death,’ does not amount to an Eighth Amendment violation.”
Clemons v. Crawford, 585 F.3d 1119, 1125 (8th Cir. 2009) (quoting Baze, 128 S. Ct.
at 1531). The Supreme Court “has never invalidated a State’s chosen procedure for
carrying out a sentence of death as the infliction of cruel and unusual punishment.”
Baze, 128 S. Ct. at 1530.
In Taylor v. Crawford, we reviewed a facial challenge to the constitutionality
of Missouri’s lethal injection protocol. 487 F.3d 1072, 1085 (8th Cir. 2007), cert.
denied, 553 U.S. ---, 128 S. Ct. 2047 (2008). We determined that the constitutionality
of Missouri’s protocol “depends upon whether the protocol as written would inflict
unnecessary pain, aside from any consideration of specific intent on the part of a
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particular state official.” Id. at 1081. Accordingly, we focused on the written protocol
to determine whether it “presents a substantial risk of inflicting unnecessary pain,” id.
at 1080, and we held that Missouri’s protocol did not violate the Eighth Amendment,
id. at 1085.
After our decision in Taylor, the Supreme Court upheld Kentucky’s lethal
injection protocol in Baze. 128 S. Ct. at 1526. The Court’s opinion was fractured,
and no opinion commanded a majority of the Justices. However, a three-Justice
plurality concluded, in an opinion written by Chief Justice Roberts, that a lethal
injection protocol must create a “substantial risk of serious harm” to be
unconstitutional. Id. at 1531 (quoting Farmer, 511 U.S. at 842). Following Baze, no
federal appellate court has invalidated a lethal injection protocol under the Eighth
Amendment. Cooey v. Strickland, 589 F.3d 210, 221 (6th Cir. 2009) (collecting
cases).
In Clemons v. Crawford, we relied on Baze to hold that eight condemned
prisoners in Missouri could not “support an Eighth Amendment claim” because they
had not “alleged a sufficiently substantial risk of serious harm” in challenging
Missouri’s implementation of its protocol. 585 F.3d at 1127-28; see also Harbison
v. Little, 571 F.3d 531, 535 (6th Cir. 2009) (“Chief Justice Roberts’s plurality opinion
[in Baze] is controlling.”), petition for cert. filed, --- U.S.L.W. --- (U.S. Nov. 23,
2009) (No. 09-7777); Emmett v. Johnson, 532 F.3d 291, 298 n.4 (4th Cir. 2008)
(concluding that the plurality opinion “represents the controlling opinion of the
Court”). In this case, we are called on to decide whether the Arkansas lethal injection
protocol violates the Eighth Amendment’s prohibition against cruel and unusual
punishment by subjecting the Inmates to a substantial risk of serious harm.
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A. Ripeness of Summary Judgment Motion
As a preliminary matter, however, the Inmates argue that their case is not ripe
for summary judgment. We review the district court’s determination that a case is ripe
for summary judgment for abuse of discretion. Nolan v. Thompson, 521 F.3d 983,
986 (8th Cir. 2008).
“Discovery does not have to be completed before a court can grant summary
judgment, but summary judgment is proper only after the nonmovant has had adequate
time for discovery.” In re TMJ Implant Prods. Liab. Litig., 113 F.3d 1484, 1489-90
(8th Cir. 1997) (internal citations omitted). The record shows that the Inmates had
adequate time to conduct discovery. This lawsuit was initially filed on May 1, 2006,
but the Inmates did not request discovery for more than fourteen months, when they
sought expedited discovery. The Inmates attribute this fourteen-month delay to the
district court’s failure to enter a scheduling order, which they assert is normally the
starting point for discovery in Arkansas. As the district court correctly noted,
however, the “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);
nor did it prevent Nooner from requesting that the Court enter a scheduling order.”
Nooner v. Norris, No. 5:06-cv-001100, 2007 WL 2301221, at *3 (E.D. Ark. Aug. 9,
2007) (unpublished) (footnote omitted) (citing Nickens v. White, 622 F.2d 967, 971
(8th Cir. 1980)).
In any event, the Inmates sought shelter under Federal Rule of Civil Procedure
56(f) on July 30, 2007, claiming that without discovery they lacked the facts necessary
to oppose the ADC’s initial motion for summary judgment. Subsequently, the ADC
voluntarily produced more than 300 pages of documents to the Inmates. On
November 9, 2007, the district court stayed and administratively terminated the
lawsuit pending the Supreme Court’s decision in Baze. After the district court
reopened this case on May 21, 2008, the ADC filed a second motion for summary
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judgment. In opposing the ADC’s motion, the Inmates did not renew their request for
a continuance to obtain further discovery under Rule 56(f).4 Under these
circumstances, the district court did not abuse its discretion in finding that the case is
ripe for summary judgment. See In re TMJ Implant Prods. Liab. Litig., 113 F.3d at
1490 (“If a party opposing a summary judgment motion does not seek shelter under
Rule 56(f) or otherwise ask for a continuance, a court generally does not abuse its
discretion in granting summary judgment based on the record before it.” (citing
Wallace v. Dorsey Trailers Se., Inc., 849 F.2d 341, 344 (8th Cir. 1988))); Ballard v.
Heineman, 548 F.3d 1132, 1136 (8th Cir. 2008) (“The district court does not abuse
its discretion by denying further discovery ‘where the nonmoving party is not
deprived of a fair chance to respond to the summary judgment motion.’” (quoting
Nord v. Kelly, 520 F.3d 848, 852 (8th Cir. 2008))).
B. Summary Judgment
Turning to the merits, “[w]e review a district court’s grant of summary
judgment de novo, using the same standards applied by the district court.”
Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 728 (8th Cir. 2002) (citing Iowa Coal
Mining Co. v. Monroe County, 257 F.3d 846, 852 (8th Cir. 2001)). “Summary
judgment is proper where the evidence, when viewed in the light most favorable to the
nonmoving party, indicates that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law.” Davison v. City of
Minneapolis, 490 F.3d 648, 654 (8th Cir. 2007) (quoting Hughes v. Stottlemyre, 454
F.3d 791, 796 (8th Cir. 2006)). We must affirm the district court’s grant of summary
judgment unless a reasonable fact finder, viewing the evidence in the light most
favorable to the Inmates, could return a verdict in their favor. See Prosser v. Ross, 70
4
The district court granted the Inmates a thirty-day extension to file their
response in opposition to the ADC’s motion for summary judgment, but they did not
argue that they needed the time to conduct discovery or that they lacked access to the
facts needed to oppose the ADC’s motion.
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F.3d 1005, 1009 (8th Cir. 1995). The Inmates contend that summary judgment was
improper with respect to eight issues. We examine each in turn.
1. The Risk of Remaining Conscious
The combination of lethal chemicals that Arkansas and at least thirty other
states use to execute prisoners has been designed to cause as little pain as possible.
See Baze, 128 S. Ct. at 1527 n.1 (noting that “in moving to lethal injection, the States
were motivated by a desire to find a more humane alternative to then-existing
methods”). “The proper administration of [sodium pentothal] ensures that the prisoner
does not experience any pain associated with the paralysis and cardiac arrest caused
by the [pancuronium bromide] and [potassium chloride].” Id. at 1527. In this case,
the Inmates have not challenged the opinion of the ADC’s expert witness, Dr. Mark
Dershwitz, that within sixty seconds of the injection of all three grams of sodium
pentothal “more than 99.9999999% of the population would be unconscious.”
However, it is also undisputed that if the other chemicals were administered to a
prisoner while still conscious, he would feel “an excruciating burning sensation as [the
potassium chloride] travels through his veins to induce a heart attack, and yet he
would be unable to indicate that he is experiencing pain due to the paralyzing effects
of the second chemical, pancuronium bromide.” See Taylor, 487 F.3d at 1074.
The Arkansas protocol contains several safeguards to ensure that the sodium
pentothal is administered properly and that the prisoner has been rendered fully
unconscious before the pancuronium bromide and potassium chloride are injected.
The protocol requires the Deputy Director to wait three minutes after the injection of
sodium pentothal before directing the executioners to administer the remaining
chemicals. During this time, the Deputy Director must verify that the prisoner is
unconscious by using “standard procedures for assessing consciousness as required
by medical paraprofessionals, such as checking for movement, opened eyes, eyelash
reflex, and response to verbal commands and physical stimuli.” If the prisoner
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remains conscious after the injection of the sodium pentothal, the protocol requires the
Deputy Director to direct the executioners to inject the back-up doses of sodium
pentothal into the secondary IV line. Finally, the protocol requires the Deputy
Director to continuously monitor the IV infusion sites throughout the execution and
to suspend the flow of lethal chemicals if she suspects a problem.
The Inmates argue that evidence about four previous executions in Arkansas
establishes a genuine issue of material fact regarding whether the protocol creates a
substantial risk of serious harm. In particular, they assert that the ADC “botched” the
executions of Ronald Gene Simmons on June 25, 1990; of Rickey Ray Rector on
January 24, 1992; of Steven Douglas Hill on May 7, 1992; and of Christina Riggs on
May 2, 2000. In the light most favorable to the Inmates, the record shows that each
of these condemned prisoners exhibited signs of consciousness within three minutes
of the injection of sodium pentothal. Thus, according to the Inmates, these executions
create a genuine issue of material fact about whether the current protocol sufficiently
ensures that they will be fully unconscious before the pancuronium bromide and
potassium chloride are administered.
We emphasized in Taylor that when reviewing the constitutionality of a state’s
lethal injection protocol we review the current protocol as written. See 487 F.3d at
1080 (“The focus of our inquiry is whether the written protocol inherently imposes a
constitutionally significant risk of pain.”). Moreover, we held that if the written
protocol is not unconstitutional on its face, “any risk that the [lethal injection]
procedure will not work as designated in the protocol is merely a risk of accident,
which is insignificant in our constitutional analysis.” Id. The plurality in Baze
similarly stated that “an isolated mishap alone does not give rise to an Eighth
Amendment violation, precisely because such an event, while regrettable, does not
suggest cruelty.’” 128 S. Ct. at 1531 (citing Farmer, 511 U.S. at 842).
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The Inmates point to the plurality’s suggestion in Baze that a “series of
abortive” execution attempts “would present a different case,” id., to claim that their
evidence of problems during previous executions creates a genuine issue of material
fact about the constitutionality of the Arkansas protocol. These four executions were
not carried out under the current protocol, however. As discussed above, the current
protocol contains numerous safeguards designed to prevent the ADC from
administering pancuronium bromide and potassium chloride to a prisoner who is not
fully unconscious. Thus, even if the ADC engaged in a “series of abortive” execution
attempts under previous protocols, the record does not establish a genuine issue of
material fact about whether the Inmates will remain conscious during the injection of
the pancuronium bromide and potassium chloride under the current protocol.
The Inmates correctly point out that the record does not contain the lethal
injection protocols in place at the time Simmons, Rector, Hill and Riggs were
executed. According to the Inmates, this creates a genuine issue of material fact about
whether the ADC has engaged in a “series of abortive” execution attempts despite the
safeguards required by the current protocol because it is possible the previous
protocols contained the same safeguards. Although the record does not identify or
describe the protocols in place at the time of the four previous executions, it does
contain lethal injection protocols dated May 23, 1996, and November 23, 2005. These
protocols lacked many of the safeguards required by the current protocol. For
instance, the 1996 protocol did not require ADC officials to monitor the IV infusion
sites, and it did not contain a contingency plan for addressing infusion problems.
Neither the 1996 nor the 2005 protocol required ADC officials to pause between the
administration of sodium pentothal and pancuronium bromide to determine whether
the prisoner is unconscious, nor did they require the preparation or administration of
back-up syringes of sodium pentothal. The current protocol is much more thorough
than these earlier protocols and, as discussed above, contains procedures that
sufficiently protect prisoners from remaining conscious during the injection of the
pancuronium bromide and potassium chloride. Cf. Harbison, 571 F.3d at 536-37
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(upholding the Tennessee lethal injection protocol despite the state’s decision to reject
a review committee’s recommendation to adopt procedures for assessing
consciousness after the administration of sodium pentothal).
The Inmates urge us to ignore the safeguards in the current protocol and find
that there is a genuine issue of material fact about whether the protocols that governed
the executions carried out in 1990, 1992 and 2000 contained safeguards that were not
part of the 1996 and 2005 protocols. We reject this argument. The possibility that the
ADC removed significant safeguards in 1996 and 2005, only to reinstate them in the
May 22, 2008 protocol, is so unlikely that it amounts to little more than pure
speculation. See Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009)
(“[S]ummary judgment will not be reversed on the basis of speculation, conjecture,
or fantasy.” (citing Potman v. Unity Health Sys., Inc., 348 F.3d 732, 733-34 (8th Cir.
2003))). Under the current protocol, “any risk that [Arkansas’s lethal injection]
procedure will not work as designated . . . is merely a risk of accident, which is
insignificant in our constitutional analysis.” Taylor, 487 F.3d at 1080.
We hold that the Inmates’ evidence of previous executions does not establish
that the Arkansas protocol creates a substantial risk of serious harm that the Inmates
will remain conscious after the administration of the sodium pentothal.
2. Intracardiac Infusion
The Inmates argue that the record establishes a genuine issue of material fact
about whether the ADC plans to use “intracardiac infusion” in future executions. In
this context, intracardiac infusion refers to a potentially painful procedure whereby
lethal chemicals are injected directly into a chamber of the heart with a large needle.
The November 23, 2005 version of the protocol authorized this procedure as a last
resort, but the May 22, 2008 version does not mention it. Nevertheless, the Inmates
claim that the ADC plans to use this procedure under the current protocol based on a
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July 18, 2008 newspaper article in which ADC spokeswoman Dina Tyler is reported
to have said that the ADC could start a line directly to a condemned prisoner’s heart
if necessary. The ADC argues that this article is hearsay and cannot be relied on to
oppose summary judgment.
We have held that “only evidence that would be admissible at trial may be
relied upon to counter a motion for summary judgment.” Sokol & Assocs., Inc. v.
Techsonic Indus., Inc., 495 F.3d 605, 611 n.4 (8th Cir. 2007) (citing Shaver v. Indep.
Stave Co., 350 F.3d 716, 723 (8th Cir. 2003)). The Inmates argue that Tyler’s
statement is admissible under Federal Rule of Evidence 801(d)(2) as a non-hearsay
admission of a party opponent. This argument fails to distinguish Tyler’s statement
from the newspaper article containing the statement. Newspaper articles are “rank
hearsay.” See Miller v. Tony & Susan Alamo Found., 924 F.2d 143, 147 (8th Cir.
1991). Even if Tyler’s statement is viewed as a non-hearsay admission of a party
opponent, the newspaper article reporting the statement is offered to prove the truth
of the matter asserted and is not covered by any hearsay exception. Therefore, the
article’s description of Tyler’s statement about intracardiac infusion “cannot be
admitted for its truth.” See United States v. Santisteban, 501 F.3d 873, 878-79 (8th
Cir. 2007).
Even assuming the newspaper article is admissible evidence, the Inmates would
still fail to establish a genuine issue of material fact about whether the ADC plans to
use intracardiac infusion in future executions. The Hobbs affidavit flatly states that
“intracardiac infusion will not be performed during any future lethal-injection
execution carried out by the ADC.” The affidavit is dated July 28, 2008, ten days
after the newspaper account of Tyler’s statement. Because we treat the Hobbs
affidavit as a binding written addendum to the protocol, we conclude that it supersedes
Tyler’s statement.
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3. Central line placement
If the IV team cannot establish IV access through traditional methods, the
protocol authorizes the Deputy Director to summon “trained, educated, and
experienced person(s)” to establish a central venous line by inserting a catheter in the
femoral, jugular or subclavian vein. The Inmates argue that this “vague, standardless
provision . . . places no meaningful restrictions whatsoever upon who may perform
this dangerous procedure” and that the protocol therefore authorizes unqualified
personnel to establish such lines. We reject the Inmates’ argument. “[I]t is imperative
for the State to employ personnel who are properly trained to competently carry out
each medical step of the [lethal injection] procedure.” Clemons, 585 F.3d at 1128
(quoting Taylor, 487 F.3d at 1084). The protocol’s requirements satisfy this standard.
Moreover, the Hobbs affidavit clarifies that any attempt to place a central venous line
will be performed by “a licensed physician who is credentialed to establish” such
lines.5 The Inmates have not established a genuine issue of material fact about
whether they face a substantial risk of serious harm from the placement of central
venous lines by unqualified ADC personnel.
4. Cut-down procedure
The Inmates argue that the protocol authorizes ADC personnel to use a “cut-
down” procedure if they are unable to obtain intravenous access by other methods.
They define a cut-down as “an incision into the prisoner’s flesh deep enough to
expose the vein for direct insertion of the needle and catheter.” The Inmates
characterize the procedure as “brutal, agonizing” and “barbaric.” They point to the
1992 execution of Rickey Ray Rector as evidence that future prisoners will be
“subject to the procedure that led to [his] torturous death.” In that instance, ADC
5
We need not consider whether a central venous line may constitutionally be
established by someone other than a licensed physician.
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personnel were unable to establish infusion sites through traditional methods and
eventually made a two-inch incision in Rector’s arm. Rector reportedly groaned
periodically during the ADC’s attempts to establish intravenous access. The Inmates
argue that this evidence suggests that they face a substantial risk of serious harm from
a cut-down procedure.
Although the current protocol does not expressly authorize a cut-down
procedure, the ADC acknowledges that it might be necessary to make incisions on
some prisoners to establish IV access. However, the Hobbs affidavit clarifies that any
such incision would be made by a licensed physician who is properly qualified to
carry out the procedure. Moreover, the protocol states that all attempts to obtain IV
access must avoid unnecessary pain by using local anesthetic as necessary.6 The
Inmates have not argued, nor does the record establish, that an incision made under
these conditions rises to the level of serious harm. Accordingly, we conclude that the
Inmates have failed to establish a genuine issue of material fact about whether they
face a substantial risk of serious harm from a cut-down procedure. Cf. Cooey, 589
F.3d at 228 (noting that the Sixth Circuit upheld Tennessee’s lethal injection protocol
even though it expressly authorizes a physician to use a cut-down procedure to gain
IV access as a contingency plan).
6
The protocol provides:
EVERY EFFORT WILL BE EXTENDED TO THE CONDEMNED
INMATE TO ENSURE THAT NO UNNECESSARY PAIN OR
SUFFERING IS INFLICTED BY THE IV PROCEDURE.
STANDARD PRACTICE OF USING A LOCAL ANESTHETIC WILL
BE ACCOMMODATED AS NECESSARY.
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5. IV Team Qualifications
The Inmates argue that the ADC does not require its IV team members to have
qualifications and experience comparable to those required by the Kentucky protocol
upheld in Baze. The Baze plurality stated that Kentucky has instituted “important
safeguards” to ensure that the lethal chemicals used in its executions are properly
administered. 128 S. Ct. at 1533. Specifically, Kentucky’s protocol requires each
member of its IV team to have at least one year of professional experience as a
phlebotomist, emergency medical technician, paramedic, certified medical assistant
or military corpsman. Id. The plurality noted that the current members of Kentucky’s
IV team insert IV catheters on a daily basis and that the Kentucky protocol requires
the IV team to engage in at least ten practice sessions each year. Id. at 1533-34. But
the plurality made clear that the “most significant” of Kentucky’s safeguards was the
requirement that each member of the IV team have at least one year of professional
experience. Id. at 1533.7
The Arkansas protocol goes even further than the Kentucky protocol by
requiring IV team members to have at least two years of professional experience as
7
The Inmates assert that the Baze plurality found that the daily experience of the
IV team members was equally significant. This argument mischaracterizes Baze. The
opinion states:
Kentucky has put in place several important safeguards to ensure that an
adequate dose of sodium thiopental is delivered to the condemned
prisoner. The most significant of these is the written protocol’s
requirement that members of the IV team must have at least one year of
professional experience as a certified medical assistant, phlebotomist,
EMT, paramedic, or military corpsmen.
Baze, 128 S. Ct. at 1533 (emphasis added).
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an emergency medical technician, nurse, physician assistant or physician. The record
does not show how often the current members of the IV team establish IV lines, but
the two-year professional experience requirement ensures that IV team members are
qualified and competent to insert IV catheters. Moreover, the Inmates are wrong to
suggest that “no training of the IV Team members whatsoever is conducted” in
Arkansas. The protocol does not include a specific schedule for practice execution
sessions, but that does not mean such practice sessions do not take place. Indeed, the
protocol outlines a procedure for conducting practice execution sessions and requires
the IV team to “initiate intravenous infusion devices” during each practice session.
We conclude that the required qualifications for IV team members in Arkansas under
the current protocol are substantially similar to the requirements of the Kentucky
protocol upheld in Baze. See 128 S. Ct. at 1537 (observing that a state “with a lethal
injection protocol substantially similar to” Kentucky’s protocol would be
constitutional).
The Inmates also argue that the Deputy Director is not qualified to supervise the
IV team. They argue that the protocol’s requirement that the Deputy Director be
“healthcare trained, educated, and/or experienced” is vague. This argument ignores
other relevant language in the same sentence, which in full states that the Deputy
Director must be “healthcare trained, educated, and/or experienced in matters related
to the establishment and monitoring of IVs.” (Emphasis added.) The Inmates also
argue that the Deputy Director must hold the same “credentials, qualifications and
competencies” as the members of the IV team. We reject this argument. The Deputy
Director supervises the IV team and monitors the infusion sites, but she does not
personally establish any of the IV lines and is not a member of the IV team. The
qualifications required by the protocol ensure that the Deputy Director is sufficiently
competent to perform her supervisory role.8
8
We reject the Inmates’ assertion that John Byus, the Administrator of Medical
and Dental Services for the ADC, is unqualified to supervise the IV team. The record
reveals that Byus is an experienced healthcare professional with more than thirty years
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Because the Inmates have not presented sufficient evidence to create a genuine
issue of material fact about whether they face a substantial risk of serious harm as a
result of any deficiencies in the training or experience of the ADC’s IV team or its
Deputy Director, summary judgment was proper on this issue.
6. Infusion Site Monitoring
The Inmates contend that the Arkansas protocol subjects them to a substantial
risk of serious harm by failing to provide for adequate monitoring of the IV infusion
sites. The sole piece of evidence they provide in support of this argument is a post-
mortem photograph of Steven Hill, which shows his entire body—except his head and
hands—covered with a sheet. The Inmates argue that this photograph creates a
genuine issue of material fact about whether the protocol prevents adequate
monitoring of the IV infusion sites by authorizing the ADC to cover condemned
prisoners with sheets during their executions.
The Baze plurality noted that in Kentucky “the presence of the warden and
deputy warden in the execution chamber with the prisoner allows them to watch for
signs of IV problems.” 128 S. Ct. at 1534 (emphasis added). The Kentucky protocol
does not specifically require anyone to monitor the infusion sites, however. See
Appellants’ App. at 528-44; see also Harbison, 571 F.3d at 538 (concluding that
visually monitoring IV lines “by video camera and through a one-way window” does
not violate the Constitution).
The Arkansas protocol expressly requires the Deputy Director to “directly
observe the . . . IV infusion site(s)” and to “closely monitor” these sites “throughout
of experience as an emergency room technician, licensed practical nurse, Assistant
Infirmary Administrator, Supervisor of Medical Services, and Administrator of
Medical and Dental Services.
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the lethal chemical infusion process.” This requirement necessarily precludes ADC
personnel from fully covering condemned prisoners with sheets before they are
pronounced dead. Moreover, the post-mortem photograph of Hill is not probative of
whether the IV infusion sites were visible during his execution. Thus, the Inmates
have failed to establish a genuine issue of material fact about the adequacy of
infusion-site monitoring under the protocol. See Gregory v. Rogers, 974 F.2d 1006,
1010 (8th Cir. 1992) (“A mere scintilla of evidence is insufficient to avoid summary
judgment.” (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986))).9
7. Contingency Plan
If the Deputy Director suspects there is a problem with an infusion site, the
protocol requires her to “direct reduction of lethal chemical flow rate or redirect lethal
chemical to the secondary or alternative site.” The Inmates argue that this
contingency plan creates a substantial risk of serious harm because the Deputy
Director might order the executioners to administer the syringes of pancuronium
bromide and potassium chloride to the secondary IV site without injecting additional
doses of sodium pentothal and normal saline. In other words, the Inmates contend that
the protocol authorizes the Deputy Director to administer pancuronium bromide and
potassium chloride to a prisoner who is not fully unconscious. This argument
erroneously assumes that pancuronium bromide and potassium chloride are the only
two “lethal chemicals” administered under the protocol. The Inmates’ own expert
asserted that “[t]wo grams of sodium thiopental is a massive, and potentially lethal,
9
We also note that Charles Carpenter, Hill’s former attorney, submitted a
declaration in which he described seeing the IV insertion point at Hill’s elbow as well
as a wide belt covering Hill’s chest during the execution. Carpenter’s observation is
also consistent with nine post-mortem photographs of prisoners (including one of Hill)
in the record. In each of these photographs, the prisoner is strapped to the gurney
uncovered and the infusion sites are visible.
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dose”;10 the Arkansas protocol calls for the injection of three grams of sodium
pentothal. Cf. Cooey v. Strickland, 589 F.3d at 216, 219 (upholding the Ohio lethal
injection protocol, which relies exclusively on a five-gram dose of sodium pentothal
to execute prisoners). Indeed, the protocol clearly lists sodium pentothal among the
“lethal chemicals” used during executions. The ADC’s decision to characterize
sodium pentothal as a lethal chemical indicates that it intends all of the chemicals
listed in the protocol to be redirected to the secondary IV site.
The Inmates’ argument again ignores the protocol’s requirement that the
Deputy Director ensure the prisoner is fully unconscious before directing the
executioners to administer the pancuronium bromide and potassium chloride. The
protocol also requires her to administer the back-up doses of sodium pentothal if
necessary to render the prisoner completely unconscious. These requirements
necessarily prohibit injecting pancuronium bromide and potassium chloride into the
secondary IV line before the prisoner is fully unconscious. Moreover, the Hobbs
affidavit clarifies that the ADC interprets the protocol to require “the back-up syringes
of sodium pentothal and saline flush to be administered before the administration of
any remaining pancuronium bromide and potassium chloride,” if the need arises for
the Deputy Director to redirect the flow of lethal chemicals during an execution. We
conclude that the Inmates have failed to create a genuine issue of material fact about
whether the protocol’s contingency plan subjects them to a substantial risk of serious
harm. Cf. Emmett, 532 F.3d at 306 (upholding Virginia’s lethal injection protocol
despite the lack of an explicit requirement to administer a back-up dose of sodium
pentothal if it is necessary to inject additional doses of pancuronium bromide or
potassium chloride).
10
Sodium pentothal is also known as thiopental. Baze, 128 S. Ct. at 1527.
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8. The Adequacy of the Execution Facility
The Inmates argue that the ADC’s execution facility subjects them to a
substantial risk of serious harm because the execution chamber is poorly lit, the
control room is too small, the syringes are inadequately labeled, and the executioners
are not positioned to properly observe the IV infusion sites. The Inmates rely on
eleven photographs in the record to support this argument, none of which create a
genuine issue of material fact about the adequacy of the execution facility. The
photographs show that the syringes are clearly labeled with large numbers and
arranged in the carrying case in numerical order. The photographs reveal little, if
anything, about the size of the control room, the viewpoint of the executioners, or the
adequacy of the lighting. Based on these photographs alone, no reasonable fact finder
could conclude that the ADC’s execution facility subjects the Inmates to a substantial
risk of serious harm, and summary judgment was therefore appropriate. See Dush v.
Appleton Elec. Co., 124 F.3d 957, 963 (8th Cir. 1997) (“To avoid the entry of
[summary] judgment, it is incumbent upon the nonmoving party to support its case
with ‘more than a scintilla of evidence.’” (quoting F.D.I.C. v. Bell, 106 F.3d 258, 263
(8th Cir. 1997))).
C. Summary
We hold that the district court did not abuse its discretion in finding that the
Inmates’ case is ripe for summary judgment. Based on our review of Arkansas’s
lethal injection protocol, we conclude that it is designed “to avoid the needless
infliction of pain, not to cause it.” See Taylor, 487 F.3d at 1085 (quoting Workman,
486 F.3d at 907). Moreover, it is substantially similar to—and perhaps even more
thorough than—the Kentucky protocol upheld by the Supreme Court in Baze, see 128
S. Ct. at 1537, and the Missouri protocol we upheld in Taylor, see 487 F.3d at 1085.
The Inmates have failed to establish a genuine issue of material fact about whether the
Arkansas protocol subjects them to a substantial risk of serious harm. On this record,
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we hold that the protocol does not violate the Eighth Amendment and that the district
court appropriately granted the ADC’s motion for summary judgment.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
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