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COOPER v. RIMMER

February 6, 2004.

KEVIN COOPER, Plaintiff,
v.
RICHARD A. RIMMER, Acting Director of the California Department of Corrections, and JEANNE S. WOODFORD, Warden of California State Prison at San Quentin, Defendants



The opinion of the court was delivered by: JEREMY FOGEL, District Judge

[EDITORS' NOTE: THIS OPINION IS DESGINATED "NOT FOR CITATION."]

DEATH PENALTY CASE

ORDER DENYING MOTIONS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND FOR EXPEDITED DISCOVERY
  Plaintiff Kevin Cooper moves for a temporary restraining order or preliminary injunction and for expedited discovery. Defendants Richard A. Rimmer, Acting Director of the California Department of Corrections, and Jeanne S. Woodford, Warden of California State Prison at San Quentin, oppose the motions. The Court has read the moving and responding papers and has considered the oral arguments of counsel presented on Thursday, February 5, 2004. For the reasons set forth below, the motions will be denied.

  I. BACKGROUND

  Plaintiff has been sentenced to death. He is scheduled to be executed by lethal injection just after midnight on Tuesday, February 10, 2004. On Monday, February 2, 2004, Plaintiff filed the present action pursuant to 42 U.S.C. § 1983 (2004). Plaintiff seeks injunctive relief to Page 2 prevent Defendants from executing him pursuant to California's lethal injection protocol because he contends that lethal injunction performed pursuant to that protocol inflicts unnecessary pain and torture in violation of his Eighth Amendment right to be free from cruel and unusual punishment.

  II. LEGAL STANDARD

  As a general rule, a party seeking a preliminary injunction must show either (1) a likelihood of success on the merits and the possibility of irreparable injury or (2) the existence of serious questions going to the merits and the balance of hardships tipping in the movant's favor. See Roe v. Anderson, 134 F.3d 1400, 1401-02 (9th Cir. 1998); Apple Computer. Inc. v. Formula Int'l, Inc., 725 F.2d 521, 523 (9th Cir. 1984). These formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. See Roe, 134 F.3d at 1402.

  III. DISCUSSION

  A. Jurisdiction

  Defendants contend that Plaintiff should have filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2004) rather than a civil rights action pursuant to 42 U.S.C. § 1983 (2004) to challenge California's lethal injection protocol. The question as to which of these statutes provides the proper means for raising a challenge to a method of execution presently is before the United States Supreme Court in Nelson v. Campbell, cert. granted, 124 S.Ct. 835 (2003). However, the United States Court of Appeals for the Ninth Circuit, whose precedent is controlling in this case pending the decision in Nelson, has held that "a challenge to a method of execution may be brought as a § 1983 action." Fierro v. Gomez, 77 F.3d 301, 305-06 (9th Cir.), vacated on other grounds, 519 U.S. 918 (1996). Accordingly, this Court has jurisdiction over Plaintiff's claims pursuant to § 1983.

  B. Undue Delay

  Although Plaintiff has been seeking review of his conviction and death sentence in state and federal courts for more than a decade, he filed the instant challenge to California's lethal Page 3 injection method of execution only eight days prior to his scheduled execution date. Plaintiff's explanation for the delay, which includes alleged failures in representation by prior counsel, difficulty in securing appointment of new counsel, new counsel's competing responsibilities in preparing a clemency petition and conducting investigations, and an alleged ripeness bar to an earlier presentation of his claims, does not establish cause under applicable law for his failure to raise this challenge at an earlier time. See Gomez v. U.S. Dist. Ct. N.D. Cal., 503 U.S. 653. 653-54 (1992) (holding that a court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief).

  Although the Court does not doubt the truth of new counsel's representations, it is evident that Plaintiff, who has been and is being assisted by a number of different lawyers and legal organizations, had sufficient legal resources to bring the present action sooner. In the last month alone, the United States Supreme Court has declined to grant or has vacated stays granted to death row inmates filing last-minute challenges to lethal injection. See, e.g., Vickers v. Johnson, No. 03A633, 2004 WL 168080 (U.S. Jan. 28, 2004) (stay of execution denied); Zimmerman v. Johnson, No. 03A606, 2004 WL 97434 (U.S. Jan. 21, 2004) (same); Beck v. Rowsey, 124 S.Ct. 980 (Jan. 8, 2004) (stay of execution vacated). Absent a compelling justification for bringing this action at the eleventh hour, such as a material change in the applicable law or factual circumstances or an exceptionally strong showing on the merits, this Court may not simply ignore such clear guidance from the Supreme Court. Moreover, such challenges inappropriately force the Court to make an ...


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