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April 18, 1992

DAVID FIERRO, et al., Plaintiffs, -v.- JAMES GOMEZ, et al., Defendants.

The opinion of the court was delivered by: MARILYN HALL PATEL

 The asserted plaintiff class consists of California state prisoners sentenced to death. They challenge the method of their future executions, asserting that death by lethal gas violates the Eighth Amendment's prohibition against cruel and unusual punishment. Plaintiffs seek a temporary restraining order ("TRO") preventing the executions of members of the plaintiff class by administration of lethal gas, the legally prescribed method in California, until this matter can be considered at a preliminary injunction hearing. After consideration of the submissions of the parties and the arguments put forth at the hearing of April 18, 1992 the court GRANTS plaintiffs' motion. This order incorporates by reference the rulings of the court made from the bench at the April 18, 1992 hearing.


 The named plaintiffs, three death row inmates at San Quentin State Prison, bring their challenge to California's method of execution under 42 U.S.C. § 1983. *fn1" Defendants, James Gomez, individually and in his capacity as Director of the California Department of Corrections, and Daniel Vasquez, as an individual, and in his capacity as the Warden of San Quentin State Prison, oppose plaintiffs' motion on the grounds that (1) it should properly be characterized as a habeas corpus petition; (2) that the federal court abstention doctrine enunciated in Younger v. Harris, 401 U.S. 37, 45, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), counsels against federal court intervention in this case; and (3) that plaintiffs cannot satisfy the TRO standards.

 I. Plaintiffs' Claim Can Properly be Brought under Section 1983

 Section 1983 is the basis for most suits brought in federal court against local governments and against state and local government officers to redress violations of federal law. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) a violation of a right secured by the Constitution or federal laws; and (2) that the alleged violation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988). There is an exception to the general rule that section 1983 may be used to challenge the unconstitutionality of the actions of state officials. This exception involves challenges to the fact or duration of confinement, which must be brought by way of a petition for a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 489-90, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973). *fn2" Despite this exception, section 1983 is the basis for virtually all constitutional rulings involving the action of state and local officials. E. Chemerinsky, Federal Jurisdiction, at 371.

 A. Federal Habeas Corpus Review

 Relying on Preiser, the Ninth Circuit's most recent pronouncement on the scope of habeas review states that "where a state prisoner challenges the fact or duration of his confinement, his sole federal remedy is a writ of habeas corpus." Young v. Kenny, 907 F.2d 874, 875 (9th Cir. 1990) (citing Preiser, 411 U.S. 489 at 489-90 ). Release from confinement has also been an important defining criterion of a habeas case. *fn3" Preiser, 411 U.S. at 484 ("The essence of habeas corpus is an attack by the person in custody on the legality of custody, and that the traditional function of the writ is to secure release from illegal custody."); see also Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681 (9th Cir. 1984) ("the exclusive federal remedy for a state prisoner seeking release from confinement is habeas corpus.") The Young court also stated that "habeas must be the exclusive federal remedy not just when a state prisoner requests the invalidation or reduction of his sentence, but whenever the requested relief requires as its predicate a determination that a sentence currently being served is invalid or unconstitutionally long." Young, 907 F.2d at 876.

 While these definitions focus on the sentence of confinement as opposed to the sentence of death, they militate against defendants' allegation that plaintiffs' case should rightly be brought in habeas. In all habeas cases the petitioner must seek a release from his or her sentence. That is not true in this case. Here plaintiffs seek review of the method by which their sentence will be carried out. This is a case in which the plaintiffs "[do] not challenge the fact or nature of [their] sentence or the state's right to execute [them] thus distinguishing this § 1983 action from one brought under 28 U.S.C. § 2254 (state habeas)." Sullivan v. Dugger, 721 F.2d 719, 720 (11th Cir. 1983). The Sullivan court explicitly held that cases challenging the method of execution of a death sentence can be brought under section 1983.

 While plaintiffs were sentenced to death by a judicial pronouncement, the determination of what means should be used to carry out that pronouncement is exclusively within the province of the legislature. In re Anderson, 69 Cal. 2d 613, 630, 73 Cal. Rptr. 21, 447 P.2d 117 (Cal. 1968), cert. denied, 406 U.S. 971, 32 L. Ed. 2d 671, 92 S. Ct. 2415 (1972) ("The fixing of penalties for crime is a legislative function."). A challenge to a means of execution cannot, by definition, be a challenge to a judicial pronouncement. *fn4" Since, plaintiffs' claim does not, and could not, challenge the fact or duration of sentence, it need not be brought as a habeas claim. To hold otherwise would carve but of habeas and section 1983 law a separate jurisprudence for death penalty cases. There is no authority for such a dichotomy.

 At oral argument, defendants asserted that because plaintiffs' requested relief would prevent the state from performing executions under its current statutory scheme, plaintiff's claim challenges the very fact of the sentence of execution and must be brought under habeas. This court disagrees. Were the court to grant injunctive relief in this case, the state would not be enjoined from performing executions, it would merely be enjoined from performing executions in an unconstitutional manner. The fact that plaintiffs may not be executed as a consequence of a court finding that the state's designated method of execution is unconstitutional does not convert a civil rights challenge to the method into a habeas action. For example, numerous prison overcrowding cases, which have resulted in the eventual release of prisoners, have been brought under section 1983.

 II. This Court need not Abstain

 A. Younger Abstention

 Defendants characterize the imminent executions of plaintiffs as state proceedings from which this court must abstain from reviewing on the basis of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) abstention. However, "three requirements must be satisfied before a federal court may properly invoke the Younger abstention doctrine: (1) ongoing state judicial proceedings; (2) implication of an important state interest in the proceedings; and (3) an adequate opportunity to raise federal questions in the proceedings." Lebbos v. Judges of Super. Ct., Santa Clara County., 883 F.2d 810, 814 (9th Cir. 1989) (quoting World Famous Drinking Emporium, Inc., V. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987)). Although Younger has been applied beyond criminal prosecutions to civil and contempt cases, defendants cite no authority for its application after the state court has issued a final judgment. Following defendants' argument that abstention is required until the "completion of the criminal process," a plaintiff could not bring a section 1983 claim until after the completion of his or her prison sentence. In addition, defendants' claim flies in the face of the policy that "'abstention from the exercise of ...

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