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BEARDSLEE v. WOODFORD

January 7, 2005.

Donald J. BEARDSLEE, Plaintiff,
v.
Jeanne S. WOODFORD, Director of the California Department of Corrections; Jill L. Brown, Warden of San Quentin State Prison; and Does 1-50, Defendants.



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

DEATH-PENALTY CASE

ORDER DENYING MOTIONS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND FOR EXPEDITED DISCOVERY
Plaintiff Donald J. Beardslee moves for a temporary restraining order or preliminary injunction and for expedited discovery. Defendants Jeanne S. Woodford, Director of the California Department of Corrections, and Jill L. Brown, Warden of San Quentin State Prison, oppose the motions. The Court has read the moving and responding papers and has considered the oral arguments of counsel presented on Thursday, January 6, 2005. 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 Wednesday, January 19, 2005. On Monday, December 20, 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, contending that executions performed pursuant to that protocol violate the Eighth Amendment's prohibition of cruel and unusual punishment as well as his First Amendment right to freedom of speech.

  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.

  In the death penalty context,
before granting a stay [of execution], a district court must consider not only the likelihood of success on the merits and the relative harm to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.
Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 2126 (2004) (citations omitted).

  III. DISCUSSION

  Less than one year ago, another resident of California's death row, Kevin Cooper, faced imminent execution. Cooper filed an action in this Court in which he challenged the same lethal injection protocol that is at issue in the present case. This Court declined to stay the execution. The Court found that Cooper had delayed unduly in asserting his claims and that he had done no more than raise the possibility that he might suffer unnecessary pain if errors were made in the course of his execution. Cooper v. Rimmer, No. C 04 436 JF, 2004 WL 231325 (N.D. Cal. Feb. 6, 2004) (Fogel, J.). The United States Court of Appeals for the Ninth Circuit affirmed for the same reasons. Cooper, 379 F.3d 1029 (2004).*fn1

  Now binding precedent, the Ninth Circuit's opinion in Cooper necessarily is the point of departure for this Court's analysis of Plaintiff's claims. Accordingly, the Court considers whether and to what extent Plaintiff's case is distinguishable from Cooper.

  A. Undue Delay

  While Cooper filed his action a mere eight days before he was due to be executed, Plaintiff filed the present action thirty days before his scheduled execution date. In addition, unlike Cooper, Plaintiff exhausted his administrative remedies before filing suit. The Court recognizes that the timing of Plaintiff's filing permits a somewhat more orderly judicial process than was possible in Cooper. Nonetheless, Plaintiff's commencement of this action so close to his execution date presents the same basic problem presented in Cooper, which is that litigation through trial is impossible unless the Court agrees to stay the pending execution. The record reflects that with one exception noted below virtually all of the evidence that Plaintiff proffers here became available while a stay of execution was in place so that Plaintiff could pursue his federal habeas corpus petition, long before December 20, 2004. As noted above, "there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." Nelson, 124 S. Ct. at 2126. Like Cooper, Plaintiff waited until the State scheduled his execution date before filing suit. Thus, although Plaintiff has been somewhat more diligent than Cooper, he still must make a showing of serious questions going to the merits that is sufficient to overcome that strong presumption.*fn2 B. Merits

  As a general matter, Plaintiff's arguments and evidence are substantially the same as Cooper's. The differences are discussed below.*fn3

  Sodium pentothal is an anesthetic barbiturate sedative that also is known as thiopental sodium. It is the first drug of three that are administered under California's lethal injection protocol. Sodium pentothal is used to render the condemned inmate unconscious prior to the administration of pancuronium bromide (also known as Pavulon), a paralytic neuromuscular blocking agent, and potassium chloride, which induces cardiac arrest. The protocol calls for the administration of five grams of sodium pentothal, which the parties agree is a lethal dose if administered properly. Like Cooper, Plaintiff argues that it ...


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