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Jordan v. Hall

United States District Court, S.D. Mississippi, Northern Division

March 29, 2018

RICHARD JORDAN and RICKY CHASE PLAINTIFFS
v.
PELICIA D. HALL, Commissioner, Mississippi Department of Corrections; MARSHAL TURNER, Superintendent, Mississippi Defendants Penitentiary; THE MISSISSIPPI DEFENDANTS EXECUTIONER, And UNKNOWN EXECUTIONERS DEFENDANTS OBERT SIMON; THOMAS EDWIN LODEN, JR. and ROGER ERIC THORSON INTERVENORS

          MEMORANDUM OPINION AND ORDER

          Henry T. Wingate, District Judge.

         Filed pursuant to 28 U.S.C. §1331[1], 42 U.S.C. §1983[2], 28 U.S.C. §1367(a)[3], and Article 3, Sections 14[4], 24[5], and 28[6] of the Mississippi Constitution, on April 16, 2015, this death- penalty action centers on Mississippi's execution protocol. When Plaintiffs initially filed this challenge, Mississippi utilized the lethal injection protocol, adopted in March, 2012, calling for the sequential injection of three drugs, the first being “an ultra short-acting barbiturate or other similar drug.” Sodium pentothal was originally used as the first drug, until that drug became unavailable. Later, the Defendants resorted to pentobarbital, and eventually to midazolam as the first drug.

         This Court, then, permitted the Plaintiffs herein to amend their complaint to attack the use of that drug. Plaintiffs filed their Amended Complaint on September 28, 2015 [Docket No. 50');">50]. The Defendants submitted their answer on October 26, 2015 [Docket No. 51].

         Plaintiffs' Amended Complaint, in summarized form, attacked the amendment to Mississippi's protocol, which allows for the use of pentobarbital as the first drug in the three-drug series where sodium pentothal is unavailable. Plaintiffs allege, in their amended complaint,

“Pentobarbital - even in its FDA-approved form - is not classified as an ultra short-acting barbiturate. Rather it is classified as a short- or intermediate-acting barbiturate. This classification recognizes the slower speed of onset of pentobarbital when compared to an ultra short-acting barbiturate.
While the Mississippi statute provides for use of an “ultra short-acting barbiturate or other similar drug, ” pentobarbital is not sufficiently similar to an ultra short-acting barbiturate as to be considered an “other similar drug” within the meaning of a statute. This is true even for FDA-approved pentobarbital, let alone for compounded pentobarbital made from unknown active pharmaceutical ingredients, as MDOC (Mississippi Department of Corrections) intends to now use.”

[Docket No. 50');">50, p.48].

         Plaintiffs further contend, in summary, that Defendants' “failure to use an ultra short-acting barbiturate as required by Miss. Code Ann. §99-19-51 creates an unacceptable risk of severe pain and serious harm in violation of the Eighth Amendment, and violates Plaintiffs' due process guarantees under the Fourteenth Amendment.” [Docket No. 50');">50, p. 49].

         For relief, Plaintiffs ask this Court to:

“Grant a declaratory judgment that neither pentobarbital nor midazolam are ultrashort acting barbiturates or other similar drugs and are therefore not permitted for lethal injection executions in Mississippi;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their officers, agents, employees, and all persons acting in concert with them from executing Plaintiffs with any drug which is not an ultra short-acting barbiturate;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their officers, agents, employees, and all persons acting in concert with them from executing Plaintiffs with either compounded pentobarbital or midazolam, which are neither ultra-short acting barbiturates nor similar to ultra short-acting barbiturates;
Grant a declaratory judgment that the words “in combination with a chemical paralytic agent” in Miss. Code Ann. §99-19-51 violate the Eighth and Fourteenth Amendment to the United States Constitution;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their officers, agents, employees, and all persons acting in concert with them from executing Plaintiffs with compounded drugs;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their officers, agents, employees, and all persons acting in concert with them from executing Plaintiffs with a three-drug series which includes a chemical paralytic agent and potassium chloride;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their officers, agents, employees, and all persons acting in concert with them from executing Plaintiffs until such time as Defendants can demonstrate the integrity, purity, potency, and legality of any and all controlled substances they intend to use for Plaintiffs' executions;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their officers, agents, employees, and all persons acting in concert with them from executing Plaintiffs without providing full and complete information about the drugs that Defendants intend to use in their execution, within sufficient time for Plaintiffs to raise any statutory or constitutional challenges to the use of said drugs.
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their officers, agents, employees, and all persons acting in concert with them from executing Plaintiffs until such time as Defendants can demonstrate that measures are in place to allow for Plaintiffs' execution in a manner that complies with the Eighth and Fourteenth Amendments to the United States Constitution;
Award costs and attorney's fees pursuant to 42 U.S.C. §1988; and
Grant any such other relief that this Court determines to be just and proper in these premises.”

[Docket No. 50');">50, pp. 56-58].

         The Plaintiffs herein are Richard Jordan and Ricky Chase, both of whom are presently on death row at the Mississippi State Penitentiary located in Parchman, Mississippi. The Defendants are Pelicia D. Hall, Commissioner, Mississippi Department of Corrections; Marshal Turner, Superintendent, Mississippi State Penitentiary; the Mississippi State Executioner; and Unknown Executioners. The Intervenors in this case are Robert Simon[7], Thomas Edwin Loden, Jr.[8], and Roger Eric Thorson[9].

         Before this Court for rulings are four motions vital to the progress of this litigation: the Defendants' Motion for Protective Order [Doc. #125]; the Plaintiffs' Motion to Compel and for Sanctions [Doc. #127]; the Plaintiffs' Motion for Leave to File Second Amended Complaint [Doc. #129]; and the Plaintiffs' Motion for Amendment to Scheduling Order [Doc. #130].

         On November 8, 2017, this Court permitted oral arguments on all of these motions. By scheduling these arguments, the Court granted the Plaintiffs' Motion for Oral Argument [Doc. #150');">50], as was announced at the beginning of the hearing.

         Having read the submissions and heard the argument of counsel, this Court is of the opinion, for the following reasons that the Defendants' Motion for Protective Order should be granted. The Plaintiffs' Motion to Compel should be granted in part and denied in part as to compelling production, but denied as to the award of sanctions. The Plaintiffs' Motion for Leave to File Second Amended Complaint should be denied, and the Plaintiffs' Motion for Amendment to Scheduling Order should be granted in part and denied in part.

         I. BACKDROP

         Lethal injection has been the method of execution in Mississippi since the 1984 amendment of Miss. Code Ann. §99-19-51 (1972). This lawsuit was filed in April, 2015. Its original basis was the Plaintiffs' attack on Mississippi's then-current lethal injection protocol, adopted in March, 2012. That protocol called for the sequential injection of three drugs, the first being “an ultra short-acting barbiturate or other similar drug.” The second drug to be administered, either pavulon or vecuronium bromide, causes paralysis. The third drug is potassium chloride, which causes cardiac arrest.

         Originally, the Defendants used sodium pentothal as the first drug; however, that drug ultimately became unavailable to the Defendants. The 2012 amendment permitted the use of pentobarbital; that drug, too, ultimately became unavailable, in injectable form, to the Defendants. Even so, Plaintiffs herein in their original Complaint alleged that pentobarbital was not “an ultra-short-acting barbiturate or similar drug.” The Defendants were able to procure pentobarbital in a powder form, but this powder form, said Plaintiffs, could not be reliably compounded into a form for injection. The Defendants later announced that they had changed the execution protocol to provide for the use of midazolam as the first drug. In response, the Plaintiffs sought this Court's permission to, and were granted permission to amend their Complaint to attack the use of that drug.

         In spring, 2017, the Mississippi Legislature amended § 99-19-51 to provide that the first drug administered during the lethal injection process would be “an appropriate anesthetic or sedative.” The amendment also provided for additional methods of execution. The first method continues to be by lethal injection, as described. If this method is held to be unconstitutional by a court of competent jurisdiction, or is otherwise unavailable, the method of execution is nitrogen hypoxia[10]. If this method is held to be unconstitutional by a court of competent jurisdiction, or is otherwise unavailable, the method of execution is by electrocution. If this method is held to be unconstitutional by a court of competent jurisdiction, or is otherwise unavailable, the method of execution is by firing squad. The statute does not define the circumstances under which a method of execution would be “unavailable.”

         The amendment further provides that the identities of members of the execution team, the suppliers of lethal injection chemicals, and witnesses to an execution are to remain confidential. This portion of the amendment was an obvious response to the focused concentration of anti-death penalty litigators to destroy any enthusiasm of these persons to participate in any phase of the death penalty procedure.

         II. Motion to Compel/Motion for Protective Order

         The Plaintiffs' Motion to Compel and the Defendants' Motion for Protective Order are two sides of the same coin. Both stem from the Plaintiffs' discovery requests that could identify the parties which supply execution drugs to the Defendants, as well as the identity of the state employees involved in the purchases. The Defendants argue that since this information is protected under Miss. Code Ann. § 99-19-51, good cause exists for the entry of a protective order under Fed. R.Civ. P. 26[11]. The Plaintiffs disagree, contending that the information they seek is not statutorily protected and, additionally, that the Defendants have failed to show they are entitled to a protective order under Rule 26.

         In their first set of Interrogatories and Requests for Production, the Plaintiffs asked the Defendants to identify all communications regarding the purchase of lethal injection drugs and produce any documents related to those communications. The Defendants responded with the dates and general content of the communications requested, identifying the participants only by initials and numbers, except where a participant was the Commissioner of the Mississippi Department of Corrections or her corollary in another state. The Defendants also provided redacted copies of purchase orders and other documents related to some of those communications.

         The Plaintiffs thereafter served a second set of discovery requests aimed at discovering whether any communications with potential drug suppliers had occurred since those documented earlier. The interrogatory and response are quoted below:

INTERROGATORY NO. 18: Describe all efforts by MDOC to purchase any of the following, whether in manufactured (FDA-approved) form, compounded from API, or the API itself: pentobarbital, midazolam, any chemical paralytic agent, and/or potassium chloride. Also, identify all persons with discoverable knowledge of these efforts, identify all documents containing discoverable information regarding these efforts, and identify all communications related to those efforts.
RESPONSE TO INTERROGATORY NO. 18: Defendants object to this Interrogatory for the following reasons: (1) it seeks the disclosure of the identities of MDOC employees and/or agents who have obtained and/or transported and/or attempted to obtain or transport lethal injection drugs on behalf of MDOC, which could subject those individuals to annoyance, embarrassment, oppression, harassment, retaliation, including potentially endangering their safety and/or well being; (2) it seeks information that could lead to the identification of individuals or entities that have supplied lethal injection drugs to MDOC and subject those individuals or entities to annoyance, embarrassment, oppression, harassment, retaliation, including potentially endangering their safety and/or well being; (3) it seeks information that is confidential and protected from disclosure by Miss. Code. Ann. § 99-19-51; and (4) it seeks information that is protected by the attorney/client privilege, the work product doctrine, and/or which would otherwise disclose the mental impressions, conclusions, opinions, or legal theories of defense counsel and MDOC's attorneys.
Without waiving, and subject to those objections, Defendants respond as follows: Since June 2016, AG1, acting on behalf of MDOC and at the direction of the Commissioner of MDOC, contacted Supplier 1 and inquired if it could obtain and would supply any of the referenced drugs to the State for use in executions. Supplier 1 obtained and then supplied MDOC with 80 units of midazolam, 6 units of vecuronium bromide, and 20 units of rocuronium bromide. An employee of MDOC (“MDOC3”) picked up the drugs from Supplier 1 and transported the drugs to MSP. Supplier 1 notified AG1 that Supplier 1 could not obtain potassium chloride at a concentration suitable for use in executions. Thereafter, AG1, acting on behalf of MDOC and at the direction of the Commissioner of MDOC, requested that a member of the Execution Team (“SE1”) obtain potassium chloride from a supplier. SE1 subsequently obtained 17 units of potassium chloride from Supplier 2. MDOC3 picked up the drug from Supplier 2 and transported the drug to MSP. The only documents in the possession, control, or custody of Defendants reflecting these efforts to obtain lethal injection drugs since June 2016 are emails between AG1 and Supplier 1 and MDOC's drug inventory logs. Defendants are producing redacted copies of drug inventory logs covering the time period from January 7, 2016 through June 5, 2017. Defendants are withholding the emails because they would disclose the ...

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