IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION DAVID ZINK, et al.

, Plaintiffs, v. GEORGE A. LOMBARDI, et al., Defendants. ) ) ) ) ) ) ) ) ) ORDER This matter comes before the Court on Plaintiff Michael Taylors Motion for Stay of Execution Pending Ruling on Certiorari Petition, (Doc. 343), and Motion for Stay of Execution Based on No Lawful Means of Proceeding, (Doc. 353). Taylor is one of 18 death row inmates in this case challenging the constitutionality of the execution protocol issued by the Missouri Department of Corrections. On January 24, 2014, the Missouri Supreme Court ordered that Taylor be executed on February 26, 2014. For the reasons below, the Motions are DENIED. I. Background The background of this case has been outlined in the Courts previous Orders on stays of executions, (see Docs. 163, 196, 308), and only the information relevant to Taylors pending motions is presented here. On January 24, 2013, the Eighth Circuit issued an opinion granting Defendants petition for writ of mandamus and vacating the Courts Orders requiring disclosure of the identities of: (1) the physician who prescribes the chemical used in Missouri executions; (2) the pharmacist who compounds the chemical; and (3) the laboratory that tests the chemical for potency, purity, and sterility. In re George A. Lombardi, No. 13-3699, 2014 WL 288937 (8th Cir. Jan. 24, 2014);

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(see also Docs. 203; 204; 205.) Relying on the Supreme Courts decision in Baze v. Rees, 553 U.S. 35 (2008), the Eighth Circuit found Plaintiffs failed to state a claim under the Eighth Amendment because they had not pled a known and available alternative to the current execution method; and therefore, it was a clear abuse of discretion for the district court to allow the claim to proceed and to order on that basis discovery of sensitive information[.] Id. at *7. Similarly, the Eighth Circuit found that Plaintiffs failed to properly plead their Ex Post Facto claims, as the punishment has remained the same and Plaintiffs had fair notice of it. Id. The Eighth Circuit also concluded that the identities of the physician, pharmacist, and laboratory are plainly not relevant to Plaintiffs remaining claims, as the merits of these claims do not depend on [those identities]. Id. at *8. Plaintiffs petition for a rehearing of this ruling was denied. (Doc. 311.) Plaintiffs have now filed a petition for writ of certiorari in the United States Supreme Court, challenging the Eighth Circuits ruling in In re Lombardi. On February 4, 2014, the Supreme Court requested further response from Plaintiffs on that petition. Taylor moves this Court to stay his execution until the Supreme Court rules on the pending petition. This petition is the basis for Taylors first Motion for Stay, (Doc. 343). Relying on Mo. Rev. Stat. 546.720, 1 neither the State nor Defendants have disclosed the identity of the pharmacy that provides drugs used in Missouri executions. However,

Plaintiffs believe that their research and media reports establish that the Apothecary Shoppe, LLC in Oklahoma is the pharmacy that provides pentobarbital for use in Missouri executions. Based on that belief, Taylor filed an action in the Northern District of Oklahoma on February 11, 2014, seeking an injunction against the Apothecary Shoppe, LLC. The Oklahoma court entered

Mo. Rev. Stat. 546.720 addresses the death penalty, manner of executions, and members of the execution team. The statute provides that the identities of members of the execution team shall be kept confidential. Currently, the execution team includes individuals who prescribe, compound, prepare, or otherwise supply the chemicals for use in the lethal injection procedure, such as the pharmacy.

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a temporary restraining order enjoining the pharmacy from issuing compounded pentobarbital to the Missouri Department of Corrections for use in Taylors execution. See Taylor v. Apothecary Shoppe, LLC, No. 4:14-cv-063-TCK-TLW, Doc. 8, (N.D. Okla. Feb. 12, 2014). On February 17, Taylor moved to dissolve the injunction and dismiss the case because the parties had reached a settlement. Though there are no publicly filed court documents explaining or setting forth the terms of the settlement, media outlets reported the suit was dismissed because the Apothecary Shoppe, LLC agreed not to provide Missouri with drugs intended for use in Taylors execution. See Tim Talley, Oklahoma Pharmacy Wont Provide Drug for Missouri Execution, Kansas City Star, Feb. 17, 2014. The case was closed on February 18. On February 19, Defendants stated that Missouri had arranged a supply of pentobarbital from a pharmacy other than Apothecary Shoppe, LLC. (Doc. 360, p. 2.) The identity of this

pharmacy is unknown to Plaintiffs. (Id.) The States use of a different pharmacy to obtain pentobarbital for Taylors execution forms the basis for Taylors second Motion for Stay, (Doc. 353). II. Taylors First Motion for Stay of Execution In order to obtain a stay of execution based on a pending petition for writ of certiorari, there must be: (1) a reasonable probability that four members of the Supreme Court would consider the underlying issue sufficiently meritorious to grant certiorari; (2) a significant possibility of reversal of the lower courts decision; and (3) a likelihood that irreparable harm will result absent a stay. Moore v. Texas, 535 U.S. 1110, 1112 (2002) (citing Barefoot v. Estelle, 463 U.S. 880, 895 (1983)). A. Reasonable Probability Certiorari Will Be Granted

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Here, Taylor contends that the Supreme Courts request for a further response creates a reasonable probability that certiorari will be granted. See Zink v. Lombardi, No. 13-8435 (Sup. Ct. filed Jan. 28, 2014). Plaintiffs state that when a call for response is issued, it is a strong sign that the Court is interested in hearing argument in the case. (Doc. 343, p. 5 (citing D.

Thompson, et al., An Empirical Analysis of Supreme Court Certiorari Petition Procedures, 16 Geo. Mason L. Rev. 237, 250.) However, only a single Justices vote is required for a request for further response to be issued. D. Thompson, et al., An Empirical Analysis of Supreme Court Certiorari Petition Procedures, 16 Geo. Mason L. Rev. 237, 248-49. Even then, after requesting a further response, the probability that the Supreme Court would grant certiorari in a case such as Plaintiffs is only 8.6%. Id. at 250. A less-than-ten-percent chance is not a reasonable

probability that Plaintiffs petition for writ of certiorari will be granted. Additionally, Plaintiff Smulls made the same arguments regarding the issues in In re Lombardi in his motion to stay, and the Supreme Court denied that motion. Taylors argument thus fails. Therefore, Taylor has failed to show there is a reasonable probability that the Supreme Court will grant certiorari in Plaintiffs case. Because Taylor has failed to show a reasonable probability that certiorari will be granted, the Court need not consider the remaining factors for issuing a stay of execution pending a petition for writ of certiorari. III. Taylors Second Motion for Stay of Execution An inmate challenging the manner in which the State plans to execute him must show a significant possibility of success on the merits. Hill v. McDonough, 547 U.S. 573, 584 (2006); Nooner v. Norris, 491 F.3d 804, 808 (8th Cir. 2007). [B]efore granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the

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parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Nelson v. Campbell, 541 U.S. 637, 649-50 (2004); Nooner, 491 F.3d at 808. A. Likelihood of Success on the Merits Taylors second motion argues that Defendants use of an unknown pharmacy to provide pentobarbital is a change in the execution protocol that violates Taylors right to due process. He contends that a stay is reasonable in order to conduct an inquiry into the practices of the pharmacy and obtain more complete information regarding the pentobarbital prepared by this pharmacy. However, Taylor cannot show a likelihood of success on the merits of this issue. First, Taylor has not set forth any binding legal authority to suggest that, even if there was a change to the protocol, death row inmates have a due process right to review an execution protocol or be notified of a change to it. In fact, two circuits have held just the opposite. See Beaty v. Brewer, 791 F. Supp. 2d 678 (D. Ariz. May 25, 2011) affd, Beaty v. Brewer, 649 F.3d 1071 (9th Cir. 2011); Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013). In Beaty v. Brewer, the District of Arizona concluded that the plaintiff was not entitled to injunctive relief when the State changed the drug to be used in his execution less than 24 hours before he was set to be executed because he cited no authority to support his allegations that the Due Process Clause provides a right to review protocol changes and attempt to challenge them. 791 F. Supp. 2d at 685-86 (citing Clemons v. Crawford, 585 F.3d 1119, 1129 n.9 (8th Cir. 2009) (noting the lack of authority indicating due process right to probe into the backgrounds of execution personnel) and Powell v. Thomas, 784 F. Supp. 2d 1270, 1282-83 (M.D. Ala. May 16, 2011) (finding no authority for the proposition that condemned inmate had a due process right to receive notice and an opportunity to be heard regarding substitution of pentobarbital)). The district courts ruling was affirmed by the Ninth Circuit, for the reasons articulated by the district

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court. See Beaty, 649 F.3d at 1072. Similarly, in Sepulvado v. Jindal, 2 the Fifth Circuit concluded that the plaintiff was not entitled to injunctive relief when the State withheld details of its execution protocol. 729 F.3d 413. The court relied heavily on the decision in Beaty, and concluded that the plaintiff had presented no legal authority and failed to identify an enforceable right that a preliminary injunction might safeguard. Id. at 420. Thus, the plaintiff did not show a likelihood of success on the merits. Second, Taylors due process argument relies on several cases that are distinguishable from his own. In Arthur v. Thomas, the execution protocol was changed, substituting

pentobarbital for sodium thiopental. 674 F.3d 1257 (11th Cir. 2012). There, the Eleventh Circuit determined that the substitution of pentobarbital constituted a significant change in the protocol, and held that the plaintiffs Eighth Amendment claim could survive a motion to dismiss. Id. at 1262. The Arthur case did not involve a last-minute motion to stay an execution. Similarly, in Morales v. Cate, a new execution protocol instituted different regulations than its predecessor, which the court found created a demonstrated risk of severe pain for an Eighth Amendment claim. 2010 WL 3835655, *3 (N.D. Cal. Sept. 28, 2010). In Moeller v. Weber, the court allowed additional discovery because of the changes in the states lethal injection protocol, but suggested that such a request would not be warranted in a last-minute request to stay [the plaintiffs] execution. 2011 WL 288516, *2 (D.S.D. Jan. 25, 2011). None of these cases addressed a death row inmates due process rights to review an execution protocol. Further, the remaining cases upon which Taylor relies are distinguishable, as they pertain to inadequate training of execution team personnel and failures to follow execution protocols. Reynolds v. Strickland, 583 F.3d 956 (6th Cir. 2009); Cooey v. Kasich, 801 F. Supp. 2d 623 (S.D. Ohio
2

Plaintiffs note that a petition for writ of certiorari in the Supreme Court is pending in this case. However, as previously discussed, the probability that the Supreme Court will grant certiorari is low. Moreover, a pending petition is not grounds for this Court to disregard the holding in this case.

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2011); Chester v. Beard, 657 F. Supp. 2d 534 (M.D. Pa. 2008); Thornson v. Epps, 2009 WL 1766806 (N.D. Miss. 2009). Additionally, unlike the cases upon which Taylor relies, Missouris execution protocol has remained unchanged since November 2013. Although Taylor asserts that changing the pharmacy changes the protocol, the portion of the protocol he relies upon simply defines the execution team to consist of anyone selected by the department director who provides direct support for the administration of lethal chemicals, including individuals who prescribe, compound, prepare, or otherwise supply the chemicals for use in the lethal injection procedure. (Doc. 338-2.) By selecting an unknown pharmacy, Defendants may have changed the members of the execution team, but they have not altered the protocol in any way. Moreover, the circumstances with respect to the identity of the pharmacy are now as they were when Plaintiff Franklin filed his motion for stay. When the Court entered the Order granting Franklins motion for stay of execution, (Doc. 163), the compounding pharmacy was unknown. Based on the evidence before it, the Court concluded Franklin had shown a

substantial risk that compounded pentobarbital from an unknown pharmacy would inflict unnecessary pain and, thus, he had shown a likelihood of success on the merits of his Eighth Amendment claim. (Doc. 163, pp. 5-12.) The Eighth Circuit reversed that decision, stating Franklin has not met his burden of presenting sufficient evidence to warrant interference with the judgment of the Missouri courts nor has Franklin proffered sufficient evidence to show a likelihood of success on the merits to support a stay of execution. Zink v. Lombardi, No. 133505, Order (8th Cir. Nov. 19, 2013), vacating Doc. 163 (citing Brewer v. Landrigan, 131 S. Ct. 445 (2010), Baze v. Rees, 553 U.S. 35, 47-48 (2008), and Whitaker v. Livingston, 732 F.3d 465, 468-69 (5th Cir. 2013) (per curiam)). Plaintiffs set forth more evidence in Plaintiffs

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Nicklassons and Smulls motions for stay, including the purported identity of the pharmacy in Smulls case, but this Court, the Eighth Circuit, and the Supreme Court concluded stays were not warranted. (See Docs. 184, 196, 201, 285, 301, 308, 319, 336.) Here, the pharmacy is yet again unknown, as in Franklins case. Additionally, Plaintiffs have not presented new evidence to the Court. Thus, Taylors motions do not warrant a different ruling than in Franklins, Nicklassons, or Smulls cases. Therefore, Taylor cannot show a likelihood of success on the merits. Because Taylor has not shown a likelihood of success on the merits, the Court need not consider the remaining factors for issuing a stay of execution. B. Conclusion Accordingly, Taylors Motions for Stay of Execution, (Docs. 343 and 353), are DENIED. IT IS SO ORDERED. /s/ Beth Phillips BETH PHILLIPS, JUDGE UNITED STATES DISTRICT COURT DATE: February 24, 2014

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION DAVID ZINK, et al., Plaintiffs, v. GEORGE A. LOMBARDI, et al., Defendants. ) ) ) ) ) ) ) ) ) ORDER This matter comes before the Court on Plaintiff Michael Taylors Motion for Stay of Execution Based on Equal Protection and Due Process Clauses. (Doc. 363.) Taylor is one of 18 death row inmates in this case challenging the constitutionality of the execution protocol issued by the Missouri Department of Corrections. On January 24, 2014, the Missouri Supreme Court ordered that Taylor be executed on February 26, 2014. For the reasons below, the Motion is DENIED. I. Discussion [B]efore granting a stay, 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. Nelson v. Campbell, 541 U.S. 637, 649-50 (2004); Nooner v. Norris, 491 F.3d 804, 808 (8th Cir. 2007). An inmate challenging the manner in which the State plans to execute him must show a significant possibility of success on the merits. Hill v. McDonough, 547 U.S. 573, 584 (2006); Nooner, 491 F.3d at 808. A. Unnecessary Delay

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The Court first concludes that Taylor unnecessarily delayed in bringing his claim. Taylor argues he has presented his equal protection claim as promptly as possible, contending that: (1) his equal protection claim did not fully ripen until the Plaintiffs Franklin, Nicklasson, and Smulls were executed; (2) his execution date was only set on January 24; and (3) since January 24, his counsel have been hurriedly litigating this case and related cases before several courts. The Court is not persuaded by these arguments. First, Franklin and Nicklasson were executed well before Taylors execution date was set in November and December 2013. Additionally, Smulls was executed on January 29, 2014, only a few days after Taylors execution date was set. Second, Taylor and the remaining Plaintiffs in this case have numerous counsel handling this litigation and related cases in other courts, who offered two other motions for stay of execution several days before the instant Motion. The evidence shows that Taylor could have brought his Equal Protection and Due Process claim earlier than five days before his scheduled execution. Thus, Taylor was unnecessarily delayed in bringing this claim and the Court can deny his Motion on that ground alone. Nonetheless, the Court will proceed to review Taylors likelihood of success on the merits of these claims. B. Likelihood of Success on the Merits Even if Taylor did not unnecessarily delay in bringing his claim, he cannot show a likelihood of success on the merits of the claim. Taylor argues that Missouri executed Plaintiffs Franklin, Nicklasson, and Smulls while viable stay proceedings were pending in the federal courts, in violation of Defendants written procedures. Taylor specifically relies on the

procedure which states the director of the Department of Corrections, or his designee, advises the warden that the inmate may be escorted to the execution room if no stay is in place and no legal activity is in process to prevent the execution. (Doc. 364-7.) Taylor contends that by failing to

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follow the written procedure, Defendants are not complying with core aspects of the procedure in violation of the Fourteenth Amendments guarantee of equal protection and his right to due process. First, Taylor has not established that the alleged violation of the written procedure is a core aspect of the procedure. The cases on which Taylor relies involve alleged violations of an execution procedure regarding provisions involving: (1) preparation of the execution drugs; (2) preparation of the inmate for administration of the drugs; (3) the manner of administration of the drugs; and (4) who participates in the execution. Cooey v. Kasich, 801 F. Supp. 2d 623 (S.D. Ohio 2011); see also In re Ohio Litigation, 840 F. Supp. 2d 1044 (S.D. Ohio 2012) (holding defendants did not substantially comply with the execution procedure for violations similar to those alleged in Cooey). Those provisions were clearly core to the written procedure, as they pertained to properly administering and carrying out the executions of inmates. Taylor has not presented any authority to suggest that the procedure in question is a core aspect of an execution procedure. Second, Taylor has not shown a violation of a fundamental right. Although Taylors motion fails to state what fundamental right is violated, Plaintiffs Second Amended Complaint (Doc. 338) alleges Defendants failure to follow the written procedure violates Plaintiffs fundamental rights under the Eighth Amendment to be free of cruel and unusual punishment. (Doc. 338, p. 150.) The Court questions whether a violation of the procedure in question is a violation of the Eighth Amendment. Moreover, as this Court and the Eighth Circuit have repeatedly held, Plaintiffs have not presented sufficient evidence to establish Defendants execution protocol violated the Eighth Amendment for Plaintiffs Franklin, Nicklasson, or Smulls. (See Docs. 184, 196, 301, 319.) Taylor has presented no new evidence to the Court that

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warrants a different ruling than in the Franklins, Nicklassons, or Smulls cases. Therefore, Taylor cannot show a fundamental right has been violated that would give rise to an Equal Protection and Due Process claim. Third, Defendants argue the written procedure calls for the Director or his designee, as opposed to some other official, to determine whether an inmate may be moved to the execution room despite a pending stay motion. Essentially, they contend the Director ultimately decides, after obtaining the advice of the Attorney General, whether to proceed with the execution when there is pending litigation that has not resulted in a stay. In light of this argument, it is unclear whether Defendants actions in past executions amount to a violation of the written procedure. Thus, it is unclear whether a violation of Plaintiffs Equal Protection and Due Process rights has occurred. Therefore, Taylor has not shown a likelihood of success on the merits for his claims. C. Conclusion Accordingly, Taylors Motion for Stay of Execution, (Doc. 363), is DENIED. Plaintiffs Motions for Leave to File Exhibits, (Docs. 364, 365, 366), are GRANTED. IT IS SO ORDERED. /s/ Beth Phillips BETH PHILLIPS, JUDGE UNITED STATES DISTRICT COURT DATE: February 24, 2014

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