The opinion of the court was delivered by: JEREMY FOGEL, District Judge
[EDITORS' NOTE: THIS OPINION IS DESGINATED "NOT FOR CITATION."]
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
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
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
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.
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.
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
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 ...