Case 5:05-cv-00825-F Document 1 Filed 07/20/2005 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) GLENN D. ANDERSON; and (2)

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CHARLES F. TAYLOR,

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Plaintiffs,

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v.

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(1) EDWARD L. EVANS, in his capacity §

as Interim Director Oklahoma Department §

of Corrections; (2) MIKE MULLIN, in §

his capacity as Warden, Oklahoma State §

Penitentiary; and (3) ROBERT L.

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RAINEY, (4) W. MARK LUTTRULL, §

(5) ERNEST GODLOVE, (6) DAVID C. §

HENNEKE, (7) TED LOGAN, (8)

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BEVERLY YOUNG, and (9) EARNEST §

D. WARE, in their capacities as members §

of the Oklahoma Board of Corrections; and §

(10) – (60) DOES 1-50, UNKNOWN

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EXECUTIONERS, in their capacities as §

Employees and/or Agents of the Oklahoma §

Department of Corrections,

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Defendants.

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Case No. CIV ___________________ COMPLAINT

COMPLAINT I. PRELIMINARY STATEMENT 1. Plaintiffs Glenn Anderson and Charles Taylor are prisoners sentenced to death by the State of Oklahoma. By statute, Oklahoma employs lethal injection as its method of execution. The Defendants and the Oklahoma Department of Corrections [hereinafter “ODOC”] have designed a procedure for carrying out Oklahoma’s statutory method of execution that purports to induce death only after a condemned prisoner has been rendered unconscious and
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unable to experience pain. In reality, the policies and practices devised by the Defendants and the ODOC unnecessarily risk conscious suffering and pain during execution and deliberately ignore and are indifferent to the health and safety of condemned prisoners. 2. This action is brought pursuant to Title 42, section 1983, of the United States Code for violations and threatened violations of the rights of Plaintiffs to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution, to be free from arbitrary and capricious Department of Corrections procedures and protocols in violation of the Fifth and Fourteenth Amendments of the United States Constitution, and to be free from the deliberate indifference of the Defendants toward Plaintiffs’ health and safety in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Plaintiffs seek equitable and injunctive relief. 3. This lawsuit does not challenge the fact of Plaintiffs’ sentences of death, nor does it challenge the constitutionality of Oklahoma’s statute requiring execution by lethal injection.
II. PLAINTIFFS 4. Glenn Douglas Anderson is a United States citizen and resident of the State of Oklahoma.
He is currently a prisoner under the supervision of the Oklahoma Department of Corrections, ODOC Number 256332, who is sentenced to death by lethal injection. Mr. Anderson is held at H-Unit of the Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 745020097. Mr. Anderson does not have a scheduled execution date. 5. Charles F. Taylor is a United States citizen and resident of the State of Oklahoma. He is currently a prisoner under the supervision of the Oklahoma Department of Corrections, ODOC Number 211013, who is sentenced to death by lethal injection. Mr. Taylor is held at H-Unit of the Oklahoma State Penitentiary at P.O. Box 97, McAlester, Oklahoma, 745020097. Mr. Taylor does not have a scheduled execution date.
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III. DEFENDANTS 6. Defendant Edward L. Evans is the Interim Director of the Oklahoma Department of
Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma, 73111. 7. Defendant Mike Mullin is the Warden of Oklahoma State Penitentiary at P.O. Box 97,
McAlester, Oklahoma, 74502-0097. 8. Defendants Robert L. Rainey, W. Mark Luttrull, Ernest Godlove, David C. Henneke, Ted
Logan, Beverly Young, and Earnest D. Ware, are the members of the Oklahoma Board of Corrections, 3400 Martin Luther King Avenue, Oklahoma City, Oklahoma, 73111. 9. Defendants Unknown Executioners are the officers, agents, employees, and successors in office, along with those acting in concert with them, of the Oklahoma Department of Corrections who will assist in carrying out the executions of Plaintiffs. Plaintiffs do not yet know the identities of the Unknown Executioners. 10. Defendants are acting under color of State law in establishing and designing the ODOC execution policies and protocol and will act under color of State law in selecting and administering to Plaintiffs chemicals in amounts, in combinations, and by methods that will unnecessarily risk conscious suffering and pain in the execution of a sentence of death and/or which are deliberately indifferent to the health, welfare, and safety of Plaintiffs.
IV. JURISDICTION AND VENUE 11. This action arises under 42 U.S.C. § 1983 to redress the deprivation under color of state law
of rights, privileges, and immunities secured by the Constitution of the United States. The rights sought to be redressed are guaranteed by the Eighth, Fifth, and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction over this complaint pursuant to 28 U.S.C. § 1331 (federal question); § 1343 (civil rights violations); § 2201 (declaratory relief); and § 2202 (further relief).
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12. Venue is proper in this Court under 28 U.S.C. § 1391 (b) because Edward L. Evans carries out the official business of the Department of Corrections from the Department’s administrative headquarters located in Oklahoma City, Oklahoma, and a substantial portion of the events giving rise to this claim have occurred and will occur within this district as part of the official business of the Department of Corrections. All Defendants reside within the State of Oklahoma and Interim Director Edward L. Evans, and Oklahoma Board of Corrections members Ernest Godlove, David C. Henneke, and Earnest D. Ware reside in this district. V. EXHAUSTION OF ADMINISTRATIVE REMEDIES
13. Plaintiffs have exhausted their administrative remedies as required under the Prison Litigation Reform Act, 42 U.S.C. § 1997e, by following the procedure set forth in the Oklahoma Department of Corrections Inmate/Offender Grievance Process. The Oklahoma Department of Corrections has denied all relief requested by Plaintiffs and Plaintiffs aver and assert that all conditions precedent for bringing this suit have been met. Copies of Plaintiffs’ requests for and denials of administrative relief are appended hereto as Attachments A and B. VI. FACTUAL ALLEGATIONS
14. Plaintiffs reallege and incorporate paragraphs 1 to 13 as if fully set out herein. 15. Lethal injection has been promoted as a peaceful way to induce death, like euthanizing a pet
− a single injection, quick unconsciousness, no struggling or movement, and death within seconds. With frightening regularity, however, that is not what happens in Oklahoma. 16. Scott Carpenter was executed by the State of Oklahoma on Thursday, May 8, 1997. At 10 minutes after midnight, as lethal drugs entered his body, witnesses report that Mr. Carpenter “moaned loudly. He exhaled and then his body convulsed. As the drugs began to take
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effect, [Mr.] Carpenter made loud rasping sounds and continued to convulse his muscles [and] visibly tensed as he struggled to breathe as the color drained from his face.”1 Four minutes after the execution began, Mr. Carpenter “[t]urned a deep shade of blue.”2 Mr. Carpenter “let out a guttural moan, gasped for breath and convulsed violently, stretching the belt that strapped his body to the table as his body arched upward,”3 his body “shuddered with 18 violent convulsions, followed by eight lesser ones.”4 Twelve minutes after the execution began, Mr. Carpenter was pronounced dead. 17. Robyn Parks was executed by the State of Oklahoma on Tuesday, March 10, 1992. At fortytwo minutes after midnight, the execution began. Mr. Parks said “I’m still awake.”5 “Less than two minutes after Warden Dan Reynolds ordered the execution to begin, Parks’ body began bucking under straps that held him to a gurney. He spewed out all the air in his lungs, spraying a cloud of spit.”6 Witnesses said “[i]t was overwhelming, stunning, disturbing.”7 Eleven minutes after the execution began, Mr. Parks was pronounced dead. 18. Loyd LaFevers was executed by the State of Oklahoma on Tuesday, January 30, 2001. As the lethal drugs began to flow, Mr. LaFevers “laid his head back, and he began to go into convulsions, gasping for breath, his chest heaving.”8 He “started raising off the bed” and “[t]he rising of his chest and the burst of air happened together over and over, as if he were gasping.”9 “[H]is eyes stayed open.”10 “[H]e appeared to have a bruise and swelling in his
1 Carlton M. Lane, 22-year-old executed for Eufala area murder, MCALESTER NEWS-CAPITAL, May 8, 1997, at 1. 2 Id. 3 Michael Smith, Execution of Killer a Quiet One, THE TULSA WORLD, May 9, 1997, at A15. 4 Anthony Thornton, State Fulfills Killer’s Wish For Execution, THE DAILY OKLAHOMAN, May 8, 1997, at 1. 5 Kandra Wells, Parks Body Take To OKC After Execution, MCALESTER NEWS-CAPITAL, Mar. 10, 1992, at 2. 6 Wayne Green, 11 Minutes That Took A Lifetime, TULSA WORLD, Mar. 2, 1992, at A13. 7 Id. 8 Howard Pankratz, Leadville Senator Witnesses Execution of Aunt’s Killer, DENVER POST, Jan. 31, 2001, at B01. 9 Decl. Catherine M. Burton (Feb. 19, 2004). 10 Decl. Patrick J. Ehlers (Mar. 1, 2004).
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left arm . . . where he had an IV tube.”11 After 6 minutes of convulsions, Mr. LaFevers was dead. 19. Unless modified, the policies and practices followed by the ODOC, which are on information and belief substantially the same today as were used in the executions of Mr. Carpenter, Mr. Parks and Mr. LaFevers, will unnecessarily place Plaintiffs at risk of suffering the same excruciating torturous deaths as were experienced by Mr. Carpenter, Mr. Parks, and Mr. LaFevers. A. Oklahoma’s Lethal Injection Legislation and How It Came into Being 20. After years of a court ordered moratorium on the death penalty, in 1976 the United States Supreme Court once again upheld capital sentencing procedures. 21. The problem with restarting executions in Oklahoma was that its electric chair, last used in 1966, had fallen into disrepair. The State looked for an alternative. 22. In what became the first proposal in the nation for execution by lethal injection, the Oklahoma Legislature enacted a statute prescribing that “[t]he punishment of death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashortacting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice.” OKLA. STAT. tit. 22, § 1014 (A) (emphasis added). 23. The statute prescribes no specific drugs, dosages, drug combinations, manner of intravenous line access, or certifications, training, or licensure for those who participate in executions. All of the details for carrying out executions were left up to the Department of Corrections. B. How Executions Are Performed in Oklahoma 24. On information and belief, executions by lethal injection in Oklahoma are performed in
11 Decl. Patrick J. Ehlers (Mar. 1, 2004).
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the following way: 25. The condemned prisoner is strapped to a gurney. 26. Phlebotomists insert two intravenous (“IV”) lines to the condemned prisoner, one into
each arm. 27. When the curtains rise on the execution chamber, the IV lines can be seen leaving the
condemned prisoner, draped across the floor of the chamber and passing through a hole in the wall to the room where the executioners wait. Last statements are made, and then a prison official orders the execution to begin. 28. Three lay-executioners then begin plunging eleven hand-held syringes in a confusing and complicated sequence prescribed by the ODOC protocol. First one drug, then a saline flush, then the next drug, alternating the drugs between the left and right arms. It is not known who, if anyone, directs the sequence of drug administration for the executioners. 29. The drugs purportedly administered are: Thiopental (to cause unconsciousness);12 Vecuronium Bromide (to cause paralysis and to stop all movement including respiration); and Potassium Chloride (to stop the heart). 30. The putative drugs dosages are:
• 1200 milligrams [“mgs”] Thiopental in the left arm IV line; • Saline in the left arm IV line; • 20 mgs Vecuronium Bromide in the right arm IV line; • Saline in the right arm IV line; • 100 meqs (milliequivalents) Potassium Chloride in the left arm IV line; and • Saline in the left arm IV line. 31. The process is then repeated by injecting a second round of drugs: • 100 meqs Potassium Chloride in the right arm IV line;
12Thiopental is also known as Sodium Pentothal or Sodium Thiopental and will be referred to as Thiopental in this Complaint.
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• Saline in the right arm IV line. • 1200 mgs Thiopental in the left arm IV line; • Saline in the left arm IV line • 20 mgs Vecuronium Bromide in the right arm IV line; and • Saline in the right arm IV line.13 32. The process is intended to deliver two doses of Thiopental through the left arm IV line, two doses of Potassium Chloride (one dose in each arm IV line), and two doses of Vecuronium Bromide in the right arm IV line. 33. When an electrocardiogram monitor signals the cessation of electrical activity in the heart, a physician manually checks the condemned prisoner and pronounces death. 34. This process recklessly subjects condemned prisoners to significant and utterly unnecessary risks that they will be tortured to death. C. The Risks of ODOC’s Lethal Injection Process 35. There are a number of risks associated with the ODOC’s execution process which include, but are not limited to, the following: (a) First, in violation of medically approved procedures, the process fails to employ properly trained persons to carry out what is, in effect, the surgical induction of anesthesia. (b) Second, it arbitrarily and unnecessarily uses drugs and drug dosages that create significant risks that condemned prisoners will suffer completely unnecessary pain during execution. (c) Third, it mandates a sequence of drug administration that delays administration of a portion of the intended anesthetic until after the condemned prisoner is, or should be, dead. (d) Fourth, it delivers drugs through two alternating IV lines, impairing control over the timing and sequence of drug delivery and increasing the risk of drug administration
13 Affidavit of Warden Mike Mullin, Jan. 12, 2004.
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failure. a. Because the Drugs Used to Cause Death Are Painful, it Is Necessary That Qualified Persons Create and Maintain IV Access to Ensure Adequate Anesthesia
36. The drugs used to cause death in an execution by lethal injection are painful. When a concentrated dose of Potassium Chloride is injected peripherally into the vein of an arm it feels like a fire traveling through the vein to the heart. Death by Potassium Chloride poisoning is known to be so excruciating that the American Veterinary Medical Association (“AVMA”) prohibits use of Potassium Chloride as the sole agent of euthanasia and, if it is to be used at all, only used after the subject has reached a surgical plane of anesthesia.
37. When a neuromuscular blocking agent is administered, it paralyzes all voluntary muscles. Respiration is impossible. It locks the recipient in a chemical tomb, where he is conscious, but unable to signal distress and unable to breath, and eventually dies by asphyxiation. Death by asphyxiation involves intense, visceral pain and has, as a method of execution, been ruled unconstitutional as violative of the Eighth Amendment.
38. The risks of neuromuscular blocking agents are well known. The AVMA prohibits the use of neuromuscular blocking agents in combination with the barbiturate anesthetics. The State of Oklahoma prohibits the use of curariform neuromuscular blocking drugs in the euthanization of animals.
39. Lethal injection is only humane if an anesthetic is administered which induces unconsciousness before neuromuscular blockers stop respiration and Potassium Chloride stops the heart.
40. Administration of IV anesthesia requires proficiency at achieving and maintaining IV access. But the sources of error are many: (a) IV catheters must be inserted into a vein and not through the vein into tissue. If a 9

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catheter is incorrectly placed, the drugs flowing through the IV lines can infiltrate the tissue surrounding the catheter rather than correctly entering the vein. (b) In Oklahoma, because two alternating IV lines are used to administer drugs, two separate IV catheters must be inserted and both connections to the condemned prisoner’s veins maintained throughout the execution process. (c) Once inserted, the catheters are connected with tubing to IV fluid bags. All mechanical components of the IV system must operate correctly for the drugs to be correctly delivered, but errors commonly occur: IV tubing sometimes leaks or becomes disconnected, or the drugs are introduced to the IV system in the wrong direction, preventing the drugs in the IV line from reaching the patient in the intended concentrations, or from reaching the patient at all. (d) Oklahoma employs unqualified persons to create IV access. The phlebotomists used by the ODOC to insert IV catheters in condemned prisoners are trained to collect blood; they are not competent to administer drugs intravenously and are not expert in the process of inserting and maintaining IV catheters, a fundamentally different and far more difficult task than drawing blood. (e) On information and belief, no one monitors the IV catheters throughout executions, leaving open the possibility that IV catheters can become disconnected throughout the process. (f) In the event that a phlebotomist cannot achieve venous access in a peripheral vein in a hand or arm the ODOC is prepared to create venous access through the invasive and painful processes of inserting a percutaneous central line (tunneling under the skin to reach the subclavian or central vein) or performing a surgical cut down (where a vein is exposed by incision or catheritized). Because these techniques of venous access require
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much more skill and training and are far more invasive than peripheral vein access, they are normally performed in highly equipped emergency rooms or operating theatres. (g) The ODOC has failed to specify who has performed these procedures in the past (and there has been at least one central line venous access performed) or who will perform them in the future, if necessary, and failed to guarantee that those performing such measures will have the requisite training to protect condemned inmates from the unnecessary pain caused by these procedures if they are not performed in the appropriate manner. (h) On information and belief, Oklahoma uses three lay-executioners to plunge eleven hand held syringes in a confusing and complicated sequence to deliver the deadly drugs. The use of untrained persons to plunge syringes risks error in the sequence and rate of drug administration, IV line failures because the executioners cannot observe the IV site and monitor the condition of the IV catheter for things like infiltrations and blowouts and are not trained to interpret things like pressure feedback on the IV lines. 41. Training and experience are essential to the success of the execution as a humane process. The ODOC’s personnel and executioners are not properly trained in the art of administering intravenous drugs.
b. The Chemical Cocktail Chosen by the ODOC Creates an Unnecessary Risk of Flawed Executions Involving Conscious Suffering
42. The ODOC has arbitrarily selected three drugs that unnecessarily risk conscious suffering in the dosages, combinations, and procedures which its executioners use.
43. The first drug, Thiopental, is an ultra-short acting barbiturate which acts to depress the central nervous system to produce unconsciousness and anesthesia. Thiopental derives its utility in surgical procedures from its rapid onset and rapid redistribution through the body at
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low (surgical) doses. Typically, Thiopental is used in the induction phase of anesthesia to temporarily anesthetize patients for sufficient time to, for example, intubate the trachea. Thiopental is a drug which requires skill to administer and should only be administered by a person qualified in the use of intravenous anesthetics. 44. If it is necessary to maintain a patient in a surgical plane of anesthesia for longer than just a few minutes, drugs other than Thiopental are typically used. If Thiopental is going to be used not only to induce, but also to maintain, a surgical plane of anesthesia, a qualified person must be present to assure that the Thiopental has been correctly administered and is maintaining the patient in a state of unconsciousness. 45. On information and belief, the ODOC protocol does not require any person to monitor the plane of anesthesia during execution. 46. The ODOC has arbitrarily and needlessly selected a dose of Thiopental that is lower than reliably guarantees a surgical plane of anesthesia for the duration of executions. The probability of inducing unconsciousness with Thiopental is dose dependent. Dosage is, in turn, weight dependent. For example, a 1200 mg dose to a 100-pound man is like a 600 mg dose to a 200-pound man. Other jurisdictions in the United States typically employ larger doses of Thiopental than are used in Oklahoma. For example, California administers 5000 mg of Thiopental. Pharmacokinetic studies which model the uptake, distribution, and elimination of a 1200 mg dose of Thiopental on a range of body weights reveal that a 1200 mg dose of Thiopental is low enough to risk consciousness in some condemned prisoners during the course of the execution, even if the drug is fully and effectively delivered. 47. The second drug, Vecuronium Bromide, is a neuromuscular blocking agent and a curariform drug. Neuromuscular blocking agents are used clinically to induce skeletal muscle relaxation to facilitate tracheal intubation or to suppress spontaneous respiration.
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48. Neuromuscular blocking agents must be administered with great care because they have no effect on consciousness or the ability to sense and perceive pain. Unless consciousness is assessed before the administration of the neuromuscular blocker, the paralysis induced in the patient will prevent anyone, even a person with advanced medical training, from ascertaining whether a patient is awake and capable of experiencing pain.
49. Neuromuscular blocking agents are typically accompanied by product warnings that require the drugs to be administered by experienced clinicians who are familiar with the drug’s actions and the possible complications of its use and cautioning that the drugs have no known effect on consciousness, pain threshold, or cerebration. Therefore, administration must be accompanied by adequate anesthesia or sedation.
50. The effect of neuromuscular blocking agents in immobilizing patients and masking external indications of their pain is well known. Patients who have been administered neuromuscular blocking agents with inadequate anesthesia have been conscious during surgery and have reported terrifying and torturous experiences where they were alert, experiencing pain, yet utterly immobilized and unable to signal their distress.
51. The consequences of erroneous administration of neuromuscular blocking agents is so profound that at least eighteen states, including Oklahoma, have banned by statute the use of such drugs in the euthanization of animals. The AVMA never permits the use of neuromuscular blocking agents in combination with barbiturate anesthetics. The ODOC has thus settled on a protocol and procedure to kill the State’s condemned prisoners that is considered too risky and dangerous for the euthanization of pets. There is no need to risk the conscious suffocation of these prisoners as a result of the administration of neuromuscular blocking agents. Other drugs are available to satisfy Oklahoma’s statutory requirement for a “paralytic agent” that do not affect respiration. Using these alternate drugs would eliminate
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the risk that a condemned prisoner will consciously asphyxiate. 52. The third drug, Potassium Chloride, contains essential blood ions and is typically
administered in trace amounts as a necessary electrolyte. While a certain potassium level is important for normal cardiac electrical activity, a rapid increase in blood concentration of potassium causes cardiac arrest. Injection of concentrated potassium activates sensory nerve fibers, causing severe pain as the drug travels through the venous system. There is universal medical agreement that, without anesthesia, an injection of a Potassium Chloride overdose causes excruciating pain. 53. The American Veterinary Medical Association is so confident that death by Potassium Chloride will cause unnecessary suffering that it prohibits its use as a euthanasia agent unless the practitioner administering the Potassium Chloride has the skill and training to assure that the subject to be euthanized has reached a surgical plane of anesthesia. 54. The Oklahoma statute does not require the administration of Potassium Chloride and the ODOC has arbitrarily and needlessly added Potassium Chloride (which is universally acknowledged to be painful) to the protocol when alternative drugs would serve the statutory function of a paralytic agent.
c. The Order of Drug Administration Reveals the ODOC’s Flawed Understanding of the Execution Process
55. The ODOC protocol delays administration of a second dose of anesthetic agent to condemned prisoners until after the prisoner has been paralyzed by a neuromuscular blocker and twice administered massive overdoses of Potassium Chloride that should already have killed within seconds of reaching the prisoner’s heart. It should be self-evident that anesthetics should be administered before the other drugs in the execution sequence because it is unnecessary to administer them after death. However, the ODOC does not appear to
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know that the second dose of anesthetic in its process comes too late to alleviate the pain and suffering of the condemned prisoner. The order of drug administration in Oklahoma is arbitrary and capricious, without justification, and unnecessarily risks conscious suffering.
d. The Two-Line IV Method Creates an Unnecessary Risk of Flawed Executions That Result in Conscious Suffering
56. Untrained personnel, the drugs selected, and the order of drug administration, each add to the risk of flawed executions in which prisoners consciously suffer pain. When these factors are combined with the two-line IV method of drug delivery employed by the ODOC, the risks rise exponentially. By using this two-line method of drug delivery, not used by any other state in the nation, the ODOC doubles the risks of IV line failures. Such failures can include, but are not limited to: IV line blockages; infiltrations in which the intravenous injection will diffuse into the surrounding tissue rather than be delivered into the vein; and other similar eventualities that result in an ineffective delivery of one or more of the drugs.
57. There is a grave risk in the ODOC protocol that the right IV line will remain open (effectively delivering the neuromuscular blocker and Potassium Chloride) while the left line is blocked or drug delivery is impeded. These circumstances would create a scenario in which the drug intended to achieve unconsciousness is not effectively delivered and the prisoner will be conscious when he is suffocated by having his respiration stopped and killed by having his heart stopped. There is reason to believe that just such eventualities have occurred during Oklahoma executions. D. Oklahoma Executions Have Gone Wrong a. Observed IV Line Access Problems
58. The ODOC has failed to achieve successful IV access to condemned prisoners. In 2001, witnesses noticed swelling and bruising on Mr. LaFevers’s left (Thiopental) arm consistent
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with an IV infiltration which prevented effective delivery of the anesthetic intended to alleviate the inevitable pain accompanying the administration of a neuromuscular blocking agent and Potassium Chloride. 59. Autopsy reports show that, on at least seven occasions, executed prisoners have had multiple acute puncture marks in addition to the IV catheter sites, reflecting that the ODOC has required multiple attempts to achieve venous access. In at least one execution it was impossible to achieve peripheral venous access and a central line was required. 60. IV access irregularities support the conclusions that personnel carrying out executions are inadequately trained and qualified.
b. Failure to Administer All Drugs 61. Autopsy reports reveal at least two cases in which full (unused) syringes of the anesthetic
Thiopental have accompanied bodies to the medical examiner’s office. On information and belief, these data indicate that the ODOC has, on several occasions, arbitrarily and unnecessarily failed to administer all of the required and intended dose of Thiopental risking inadequate anesthesia and conscious suffering.
c. Witnesses Reports of Condemned Prisoner Reactions Suggest Inadequate Anesthesia
62. There are many reports of prisoner reaction to the execution process that are inconsistent with the rapid and complete onset and maintenance of anesthesia. As previously discussed, the Carpenter, LaFevers, and Parks executions were accompanied by witness observations of prisoner response to the execution protocol that is inconsistent with effective administration of the execution protocol.
63. Witnesses to other executions also report prisoner comments like “I can taste it” and shaking and convulsions that are also inconsistent with the rapid and complete onset and
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maintenance of anesthesia. d. Analytical Data Suggests Inadequate Anesthesia
64. Postmortem Thiopental blood concentrations, in some cases, cannot be reconciled with consistent administration of Thiopental and, in some cases, are inconsistent with antemortem unconsciousness. E. The Defendants and the ODOC Knew, Or Should Have Known, of Executions Involving the Risk of Conscious Suffering Yet Have Failed to Correct the Execution Process to Minimize That Risk
65. The Defendants and the ODOC knew, or should have known, that their execution process is flawed in ways that entail risks of conscious suffering, but have deliberately ignored those risks and failed to make practicable modifications in the process. The ODOC policy statement number OP-090901, dated April 12, 1978 (date issued) and May 1, 1978 (effective date) indicates that the Defendants and the ODOC have been aware since 1978 that adequate IV access is essential to a humane execution, but nevertheless have employed persons unqualified to achieve IV access as part of the execution process and has failed to employ qualified persons to monitor IV access and the plane of anesthesia throughout the execution process.
66. The Defendants and the ODOC knew, or should have known, since 1978 that drugs other than neuromuscular blocking agents or curariform derivatives can serve the statutory requirement of paralytic agents, but have nevertheless continued to employ drugs known to risk conscious suffering.
67. The Defendants and the ODOC knew, or should have known, of botched executions involving risks of conscious suffering, for example, the Carpenter execution, but have nevertheless continued to employ drugs, dosages, chemical combinations, and procedures that risk the needless infliction of conscious suffering. Ron Ward, who was Warden of the 17

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Oklahoma State Penitentiary during the Scott Carpenter execution, said that “There was probably more body action with this one than I’ve seen”14 and acknowledged that the Carpenter execution took longer than normal. F. The Defendants and the ODOC Have Arbitrarily and Capriciously Modified
the Execution Processes Subjecting Condemned Prisoners to Risks of Conscious Suffering 68. The Defendants and the ODOC have, since 1990, arbitrarily and capriciously modified the execution processes to change, for example, the drugs used, the drug amounts, number of IV lines used to deliver drugs, and personnel involved, exposing condemned prisoners to risks of conscious suffering. 69. The sum of the available execution data (witness reports, postmortem Thiopental levels, execution duration, weight, and other data) indicate that the ODOC protocol has caused a high frequency of failure to effectively anesthetize condemned prisoners for the duration of executions. 70. Botched executions that risk conscious suffering are the direct and inevitable result of a protocol cobbled together in secret by people who are not qualified to conduct what is essentially the induction of anesthesia. The ODOC protocol is flawed at nearly every turn in that it: (1) orders executioners to take the bizarre step of anesthetizing those who are, or should be, already dead; (2) uses unqualified personnel like phlebotomists to insert IV catheters; (3) uses dangerous and unnecessary drugs (like neuromuscular blockers) in a reckless manner; (4) fails to take the simple step of assuring that a surgical plane of anesthesia and an actual state of unconsciousness have been achieved and will continue for the duration of the execution before administering painful drugs; (5) administers a dose of
14 Anthony Thornton, After Apologizing, Killer Dies With Calm Dignity, THE DAILY OKLAHOMAN, May 9, 1997, at 9.
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Thiopental that is unnecessarily dangerously low; and (6) introduces drugs through two IV lines unnecessarily complicating the execution process and unnecessarily risking harm. 71. The consequence of the ODOC protocol is that people are suffering when they are executed in Oklahoma. They are suffering for more than the transitory period necessarily attendant to any death. People are suffering for prolonged periods as result of completely avoidable problems in protocol and procedure. It is possible to conduct execution by lethal injection in a manner that both complies with Oklahoma’s statute and is humane, but the Defendants and the ODOC have arbitrarily, capriciously, and unnecessarily devised a protocol for carrying out executions by lethal injection that does not do so.
VII. CLAIMS 72. Plaintiffs reallege and incorporate paragraphs 1 to 71 as if fully set out herein. 73. By subjecting Plaintiffs to an arbitrary, capricious and irrational method of execution that
creates an unnecessary and significant risk of inflicting agonizing and prolonged pain, and by designing and administering a process under which they will inject Plaintiffs with chemicals in amounts, combinations, and by a protocol or protocols that unnecessarily risk conscious suffering and pain in the execution of a sentence of death, Defendants deprive Plaintiffs of their rights under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution to be free from cruel and unusual punishment and to be free from arbitrary and capricious processes. 74. By subjecting Plaintiffs to an arbitrary, capricious, and irrational method of execution that creates an unnecessary and significant risk of inflicting agonizing and prolonged pain, Defendants with deliberate indifference to Plaintiffs’ serious medical needs violate Plaintiffs’ rights to be free from cruel and unusual punishment and the unnecessary and wanton infliction of pain in violation of the Fifth, Eighth and Fourteenth Amendments of the United
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States Constitution.

VIII. PRAYER FOR RELIEF

75. Plaintiffs reallege and incorporate paragraphs 1 to 74 as if fully set out herein.

76. Wherefore, Plaintiffs pray as follows:

77. That this Honorable Court issue a judgment declaring that the Defendants protocols, policies,

practices, and acts and omissions as described herein violate Plaintiffs’ rights as guaranteed

by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States;

78. That this Honorable Court permanently enjoin Defendants, their officers, agents, employees,

and successor in office, along with those acting in concert with them, from engaging in the

unlawful practices described herein;

79. That this Honorable Court retain jurisdiction over this cause until the Court’s order is carried

out; and

80. Any and all other such relief as this Court deems just, proper, and equitable under the

circumstances.

Respectfully submitted this 20th day of July, 2005, by and through,

s/ Lisa S. McCalmont Lisa S. McCalmont Oklahoma Bar No. 17096 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK. 73102 (405) 609-5930 (405) 609-5952 lisa_mccalmont@fd.org

20

Case 5:05-cv-00825-F Document 1 Filed 07/20/2005 Page 21 of 21
VERIFICATION I, Lisa S. McCalmont, hereby declare: 1. I am a member of the State Bars of Oklahoma and Texas and am admitted to practice before the all of the Federal District Courts of Oklahoma, the United States Court of Appeals for the Tenth Circuit, the United States Supreme Court. 2. I have reviewed the foregoing complaint. I have personal knowledge of the matters set forth in the complaint, except as otherwise indicated, and could and would competently testify to them if called upon to do so. I verify that all of the alleged facts that are not otherwise supported by citations to the records or declarations attached to the complaint are true and correct to my own knowledge, except as to any matters stated in it on information and belief, which I am informed and believe are true and correct. I declare under penalty of perjury under the laws of the State of Oklahoma and the United States of America that the foregoing is true and correct. Executed on July 13, 2005, in Oklahoma City, Oklahoma.
s/ Lisa S. McCalmont Lisa S. McCalmont Oklahoma Bar No. 17096 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK. 73102 (405) 609-5930 (405) 609-5952 lisa_mccalmont@fd.org
21

 </s> Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

GLENN ANDERSON, et. al.

)

)

Plaintiffs,

)

)

v.

)

)

EDWARD L. EVANS, in his capacity )

as Interim Director Oklahoma Department )

of Corrections, et. al.

)

)

Defendants.

)

Case No. CIV-05-825-F

DEFENDANTS’ MOTION TO DISMISS AND BRIEF IN SUPPORT

Defendants, Edward L. Evans, in his capacity as Interim Director - Oklahoma Department

of Corrections, (“Evans”) and Mike Mullin, in his capacity as Warden of Oklahoma State

Penitentiary, (“Mullin”) (collectively “Defendants”) respectfully move the Court to dismiss

Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which

relief may be granted. In support, Defendants submit the following Brief.

BRIEF IN SUPPORT

STATEMENT OF THE CASE

Plaintiffs, Glenn Anderson and Charles Taylor (collectively “Plaintiffs”) are inmates confined

to the custody of the Oklahoma Department of Corrections. (Complaint, ¶ 1). Each of the Plaintiffs

has been sentenced to death by a state district court of competent jurisdiction. (Complaint, ¶ 1).

Specifically, Plaintiff Anderson was convicted on July 28, 1997, of three counts of first degree

murder in case number CRF-96-240, in the District Court of Grady County, for which he was sentenced to death.1 Plaintiff Taylor was convicted on September 6, 1996, of one count of first

1 See the Department of Corrections website at http://docapp8.doc.state.ok.us/servlet/ page?_pageid=394&_dad=portal30&_schema=PORTAL30&doc_num=256332&offender_book_id=147004

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 2 of 12
degree murder in case number CRF-95-570, in the District Court of Pittsburg County, for which he was sentenced to death.2
The State of Oklahoma, pursuant to state law, requires the death sentence to be carried out
by “continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in
combination with a chemical paralytic agent until death is pronounced by a licensed physician
according to accepted standards of medical practice.” See, 22 O.S. § 1014(A). Pursuant to this
statute, medical procedures have been prescribed for carrying out the death sentence in accordance
with the Legislature’s mandate.
According to Plaintiffs’ Complaint, the protocol followed by the Department of Corrections
for execution by lethal injection consists of the following steps:
• The condemned is strapped to a gurney (Complaint, ¶25); • An intravenous line is inserted into each arm of the condemned (Complaint,
¶26); • 1200 milligrams of Thiopental are injected into the left arm (Complaint, ¶30); • The left intravenous line is flushed with saline (Complaint, ¶30); • 20 milligrams of Vecuronium Bromide are injected into the left arm
(Complaint, ¶30); • The left intravenous line is flushed with saline (Complaint, ¶30); • 100 milliequivalents of Potassium Chloride is injected into the left arm
(Complaint, ¶30); • The left intravenous line is flushed with saline (Complaint, ¶30); • 100 milliequivalents of Potassium Chloride is injected into the right arm
(Complaint, ¶31); • The right intravenous line is flushed with saline (Complaint, ¶31); • 20 milligrams of Vecuronium Bromide are injected into the right arm
(Complaint, ¶31); • The right intravenous line is flushed with saline (Complaint, ¶31);
2 See the Department of Corrections website at http://docapp8.doc.state.ok.us/servlet/ page?_pageid=394&_dad=portal30&_schema=PORTAL30&doc_num=211013&offender_book_id=103247
2

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 3 of 12
• 1200 milligrams of Thiopental are injected into the right arm (Complaint, ¶31);3
After the listed drugs are injected, a physician monitors the condemned and pronounces death at the appropriate time. From the initial injection of Thiopental, the entire process takes but a few minutes.
Plaintiffs bring the present case under 42 U.S.C. § 1983, asserting violations of their right to be free from cruel and unusual punishment under the Eighth Amendment, and their right to be free from arbitrary and capricious procedures under the Fifth Amendment. (Complaint, ¶2). However, Plaintiffs’ Complaint is insufficient to state a claim under 42 U.S.C. §1 983, and should be dismissed in its entirety insofar as it relates to Defendants Evans and Mullin.
ARGUMENT AND AUTHORITY LEGAL STANDARD
A motion to dismiss is properly granted when it appears from the face of the Complaint, that the plaintiff can prove no set of facts entitling it to relief. All material allegations are taken as true when ruling on a motion to dismiss. Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir. 1992).
I. PLAINTIFFS MAY NOT PURSUE A CLAIM UNDER 42 U.S.C. § 1983 WHICH REPRESENTS MERELY A DIFFERENCE OF MEDICAL OPINION.
Stripped of its emotional and ideological context, execution by lethal injection is a medical procedure. It is a medical procedure consisting of anesthetizing an individual, and injecting chemical agents into his/her body to achieve a desired effect; in this case the death of the individual. It is required to be carried out in accordance within recognized standards of medical practice. See, 22
3 Paragraph 31 of Plaintiffs’ Complaint reverses the order of the second round of drugs injected into condemned. In actuality the order of the second round of drugs is the same as the first.
3

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 4 of 12
O.S. § 1014(A). All phases of the execution are presided over by an attending physician. Seemingly, Plaintiffs concede that execution by lethal injection is a medical procedure when employing phrases such as “surgical plane of anesthesia”.
As such, Plaintiffs are alleging treatment prescribed by a physician is inadequate. Plaintiffs assert that it is possible that executed inmates run the risk of not being anesthetized to the point of unconsciousness prior to receiving injections of lethal drugs. (Complaint, ¶¶ 35-57). Specifically, Plaintiffs contend:
• Those individuals maintaining intravenous access are unqualified to do so (Complaint, ¶¶36-41);
• The chemical agents, in the dosages prescribed, are possibly insufficient to anesthetize those facing execution to the point of unconsciousness prior to the injection of the lethal agents (Complaint, ¶¶ 42-54).
• The order of the chemical agents possibly causes pain to the individual sentenced to death (Complaint, ¶ 55);
• The use of redundant intravenous lines possibly increases the risk that something will go wrong during the execution of an individual sentenced to death (Complaint, ¶¶ 56-57).
Plaintiffs are challenging the medical opinion that the current procedure is acceptable for delivering a lethal dose of prescribed medication, with a minimum of suffering. A different question would be before the Court if Plaintiffs were alleging Defendants deliberately withheld anesthesia that was prescribed to individuals sentenced to death. However, that question is not presented in this case. Essentially, Plaintiffs claims represent a difference of opinion with the considered medical opinion of the medical staff of the Oklahoma Department of Corrections. For example, Plaintiffs disagree with the prescribed method of maintaining intravenous access, the prescribed dosage of thiopental, and the prescribed order of the injection of the anesthesia and lethal agents. As such, Plaintiffs claims assert that the medical opinion of the medical personnel overseeing executions in
4

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 5 of 12
the State of Oklahoma is possibly flawed. This is simply insufficient to state a claim under 42 U.S.C. § 1983. Consequently, Plaintiffs’ claims under the Eighth Amendment should be dismissed in their entirety.
The legal standard for the review of Plaintiffs’ claims was established in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), in which the Supreme Court concluded that the Eight Amendment prevents the deliberate indifference by prison officials to the serious medical needs of prisoners. Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). The Supreme Court in Estelle explained its standard as including the indifference manifested by prison officials "in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, supra, at 104-105.
In this Circuit, deliberate indifference is shown when an inmate is prevented from receiving recommended treatment or denied access to personnel capable of evaluating the need for treatment. Garcia v. Salt Lake Community Action Program, 768 F.2d 303, 307-308, fn. 3 (10th Cir. 1985). To demonstrate an Eighth Amendment violation cognizable under § 1983, Plaintiff must establish a deliberate interference with prescribed medical treatment. Twyman v. Crisp, 584 F.2d 352, 355 (10th Cir. 1978).
The cases dealing with prisoner medical care hold that a difference of medical opinion between the prisoner and medical personnel of a prison does not give rise to a cause of action under § 1983. In Smart v. Villar, 547 F.2d 112 (10th Cir. 1976), the Tenth Circuit stated:
As to the procedures and treatment, we must refer to our decisions which consider a difference of opinion as to treatment or diagnosis between the prisoner and the medical staff of the prison, as in Estelle. We have consistently held that the existence of such a difference
5

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 6 of 12
cannot alone give rise to a cause of such action, and if the complaint indicates that such is the case, it must be dismissed.
547 F.2d at 114. See also, Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992) (Inmate's belief that he needed additional medication, other than that prescribed by the treating physician was insufficient to establish a constitutional violation).
Plaintiffs have not alleged that any medical professional has prescribed any different procedures for execution by lethal injection to the State of Oklahoma, or more specifically, to the Plaintiffs. Rather, Plaintiff’s Complaint merely sets forth their non-medical opinion that the Department of Corrections’ policy is wrong. According to the Tenth Circuit, a disagreement such as this should be dismissed.
II. PLAINTIFF’S COMPLAINT IS BARRED BY THE LIMITATIONS PERIOD APPLICABLE TO ACTIONS UNDER 42 U.S.C. § 1983.
The limitations period for actions under 42 U.S.C. § 1983 is the limitations period for personal injuries in the state where the action accrues. Wilson v. Garcia, 471 U.S. 261 (1985). Under Oklahoma law, the applicable state statute is two years. See Abbitt v. Franklin, 731 F.2d 661 (10th Cir. 1984) (holding that in determining the statute of limitations for § 1983 action in Oklahoma, the most analogous state statute is Okla. Stat. tit. 12, § 95 (3), which contains a two-year limitations period); see also, Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1988).
While state law controls the limitations periods and tolling issues of § 1983 cases, federal law governs the accrual of such causes of action. Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998); see also, Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1994). In that regard, a cause of action under § 1983 accrues and the statute of limitations begins to run “when the plaintiff knows
6

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 7 of 12
or has reason to know of the injury which is the basis of the action”. Smith, 149 F.3d at 1154. (Citing Fratus at 675, and Baker v. Board of Regents, 991 F.2d 628, 632 (10th Cir. 1993)).
In the present case, Plaintiff Anderson was sentenced to death in 1997. Plaintiff Taylor was sentenced to death in 1996. At the time both Plaintiffs were sentenced to be executed, Oklahoma employed lethal injection as the means for carrying out the death sentence. (Complaint, ¶ 22). As such, Plaintiffs’ cause of action accrued at the time of their sentencing. Since more than two years has expired since that time, Plaintiffs’ Complaint should be dismissed.
III. PLAINTIFFS’ COMPLAINT FAILS TO STATE A CLAIM FOR ANY VIOLATION OF THE EIGHTH AMENDMENT.
The Supreme Court in Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994), noted that a prison official violates the Eighth Amendment when two requirements have been met:
First, the deprivation alleged must be, objectively, “sufficiently serious,” . . . the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
* * * The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” . . . . In prison-conditions cases that state of mind is one of “deliberate indifference” to inmate health or safety. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977. (Citations omitted). In defining the contours of the “deliberate indifference” standard, the Court in Farmer spent considerable time discussing the history of the standard. The Court noted that the phrase first appeared in Estelle, 429 U.S. at 104, in which it was described as “a state of mind more blameworthy
7

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 8 of 12
than negligence.” Farmer, 511 U.S. at 835, 114 S. Ct. at 1978. Additionally, the Court in Farmer stated, “We have since read Estelle for the proposition that Eighth Amendment liability requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’” Id., quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986). Furthermore, in acknowledging various Courts of Appeals’ treatment of the standard, the Court provided, “It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” Id., 511 U.S. at 836, 114 S.Ct. at 1978. After addressing the history and treatment of the standard, the Court finally held:
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id., 511 U.S. at 837, 114 S.Ct. at 1979. (Emphasis added). In the present case, Plaintiffs allege Defendants should know that the method prescribed for execution by lethal injection is likely to cause suffering to the condemned prisoner. However, there is no allegation that Defendants have made any inference that the protocol causes suffering and have disregarded such inference. Neither does Plaintiffs’ Complaint raise such an inference. Nevertheless, Plaintiffs attempt to raise this inference, without success. Specifically, Plaintiffs contend that phlebotomists are incapable of maintaining a patent intravenous line, but ignore the fact that an attending physician is present. Likewise, Plaintiffs assert that a 1200 milligram dose of Thiopental to a 100 pound man is the same as a 600 milligram dose to a 200 pound man, but don’t allege that Defendants know that a 600 milligram dose is insufficient to render
8

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 9 of 12
the hypothetical 200 pound man unconscious. (Complaint, ¶46). Likewise, Plaintiffs ignore the fact
that condemned prisoners are injected with two 1200 milligram doses of Thiopental. Plaintiffs
seemingly concede the point that no inference of the alleged pain and suffering has arisen when they
state “[h]owever, the ODOC does not appear to know that the second dose of anesthetic in its
process comes to late to alleviate the pain and suffering of the condemned prisoner.” (Complaint,
¶ 55). Beyond Plaintiffs’ failure to sufficiently plead allegations of their Eighth Amendment rights,
further authority supports Defendants position that no Eighth Amendment violation has occurred.
The court in Reid v. Johnson, 333 F.Supp. 2d 543 (E.D. Va. 2004) examined the lethal
injection process for the State of Virginia, which is similar to that of Oklahoma. The court stated:
Two grams [2000 milligrams] of sodium thiopental is approximately five to eight times the dosage that would be used to render a 176 pound individual unconscious for general surgery. Within moments after the injection of the sodium thiopental, the inmate will be rendered unconscious. The condemned inmate will slip into unconsciousness in the same manner as that experienced by a general surgery patient. The probability of the inmate regaining consciousness within the ensuing ten minutes is 3/1000 of one percent. The probability of the inmate regaining consciousness by minute fifteen is 6/1000 of one percent. The probability of the inmate regaining consciousness within twenty minutes never rises above 1/100 of one percent. In light of the inordinately high dosage, the weight or other physical attributes peculiar to a particular inmate will have a negligible impact on these probabilities. Flushing of the IV line prevents the sodium thiopental and the second and third drugs from interacting outside of the body of the inmate.
*** Pancuronium suppresses involuntary seizures or motor manifestations that may occur during the execution process. These motor manifestations could give witnesses the false perception that the condemned inmate was experiencing pain. In light of the large dose of sodium thiopental, the inmate does not experience any pain associated with any potential involuntary motor reactions. Fifty milligrams of pancuronium bromide is a lethal dosage and will cause death by the cessation of respiration within two minutes. In this protocol, the probability that the inmate would be conscious of the physical effects of pancuronium is less than 1/100 of one percent.
9

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 10 of 12
*** The third injection, at least 120 milliequivalents of potassium chloride, causes the condemned inmate's heart to stop. One hundred milliequivalents of potassium chloride is a lethal dose. Within moments after the potassium chloride has been injected, the heart of the inmate will stop beating. Shortly thereafter, brain activity will cease. Within three minutes after the injection of the potassium chloride, the inmate will be brain dead. Reid 333 F.Supp. 546-47. (citations omitted)(emphasis added). It is worth noting that Virginia’s lethal injection protocol calls for even less Thiopental than Oklahoma’s. Nevertheless, using the calculations provided by the court in that case, Oklahoma anesthetizes the condemned with a minimum of six times the amount of Thiopental used to anesthetize a patient for surgery. As such, Plaintiffs’ Complaint fails to allege any violation of their Eighth Amendment rights, and should be dismissed in its entirety. IV. PLAINTIFFS’ COMPLAINT FAILS TO STATE A CLAIM FOR
VIOLATION OF THE FIFTH AMENDMENT. Plaintiffs’ claims under the Due Process clause are less than clear. However, it appears Plaintiffs contend that prison regulations arbitrarily and capriciously impose a lethal injection regime that causes prolonged and significant pain. (Complaint, ¶¶2, 68-71). However, the DOC operations memoranda are not designed to, and do not, confer any additional rights unto any prisoner. Sandin v. Conner, 515 U.S. 472, 481-482, 115 S.Ct. 2293, 2299, 132 L.Ed.2d 418 (1995). Instead those procedures are implemented to “aspire to instruct subordinate employees how to exercise discretion vested by the state in the [director], and to confine the authority of [department] personnel in order to avoid widely different treatment of similar incidents.” Id. Furthermore, the United States Supreme Court has found disfavor in scrutinizing policy adoption in lieu of addressing the issues at bar.
10

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 11 of 12
[In the past] by shifting the focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation, the Court encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges. [Such an approach] has produced at least two undesirable effects. First, it creates disincentives for States to codify prison management procedures in the interest of uniform treatment. Second, [this] approach has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone. In so doing, it has run counter to the view expressed in several of our cases that federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment. Sandin, 515 U.S. at 481-482. It is clear from Plaintiffs’ Complaint that both of the “undesirable effects” enunciated in Sandin are implicated in the present case. Applying Sandin it is clear Plaintiffs’ due process claims are untenable and should be dismissed in their entirety.
Respectfully submitted,
s/ J. Kevin Behrens J. KEVIN BEHRENS, OBA #19046 Assistant Attorney General Oklahoma Attorney General’s Office Litigation Section 4545 N. Lincoln Blvd., Suite 260 Oklahoma City, OK 73105-3498 Tele: (405) 521-4274 Fax: (405) 521-1867 Kevin_Behrens@oag.state.ok.us Attorney for Defendants Edwards and Mullin
11

Case 5:05-cv-00825-F Document 26 Filed 09/06/2005 Page 12 of 12 CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of September, 2005, I electronically transmitted the attached document to the Clerk of the Court using the ECF system for filing and transmittal of a Notice of Electronic Filing to the following ECF registrant:
Lisa S. McCalmont 215 Dean A. McGee, Suite 109 Oklahoma City, OK 73102 Attorney for Plaintiffs
s/ J. Kevin Behrens J. Kevin Behrens
12

 </s> Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

GLENN ANDERSON, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

EDWARD L. EVANS, in his capacity )

as Interim Director Oklahoma Department )

of Corrections, et al.,

)

)

Defendants.

)

Case No. CIV-05-825-F

REPORT AND RECOMMENDATION

Plaintiffs Glenn Anderson and Charles Taylor are state prisoners who have sued under

42 U.S.C. § 1983. The named defendants1 move for dismissal,2 and the Court should

overrule the motion.

Background

Messrs. Anderson and Taylor have been sentenced to death by the State of Oklahoma.

See Complaint at p. 1. Under Oklahoma law, they face execution by lethal injection. See id.

The Plaintiffs allege that the Oklahoma Department of Corrections (“DOC”) has designed

1

In the complaint, the Plaintiffs have also sued 50 defendants who are not identified by name.

Complaint at p. 1 (July 20, 2005) (“Complaint”).

2

The named defendants filed two similar motions and collectively filed a single reply brief.

Defendants’ Motion to Dismiss and Brief in Support (Sept. 6, 2005); Defendants’ Motion to Dismiss

and Brief in Support (Sept. 22, 2005); Defendants’ Reply to Plaintiffs’ Response to Defendants’

Motion to Dismiss (Oct. 21, 2005).

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 2 of 12
a lethal injection procedure that violates the Fifth, Eighth and Fourteenth Amendments. Id. at pp. 2, 19-20.
In their motions to dismiss, the Defendants argue that the Plaintiffs’ claims are barred by the statute of limitations and are facially insufficient. Defendants’ Motion to Dismiss and Brief in Support at pp. 3-11 (Sept. 6, 2005); Defendants’ Motion to Dismiss and Brief in Support at pp. 3-11 (Sept. 22, 2005). In their reply, the Defendants also argue that the Plaintiffs cannot prevail on a claim involving a lack of notice. Defendants’ Reply to Plaintiffs’ Response to Defendants’ Motion to Dismiss at pp. 5-7 (Oct. 21, 2005).
Standard for Dismissal The Defendants have moved for dismissal under Fed. R. Civ. P. 12(b)(6). Defendants’ Motion to Dismiss and Brief in Support at p. 1 (Sept. 6, 2005); Defendants’ Motion to Dismiss and Brief in Support at p. 1 (Sept. 22, 2005). Under this provision, dismissal is proper only if “the plaintiff[s] can prove no set of facts in support . . . that would entitle [them] to relief.” Roman v. Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir. 1995). The well-pleaded factual allegations and all reasonable inferences must be accepted as true and construed in the light most favorable to the Plaintiffs. See Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990). As a result, “[t]he court’s function . . . is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff[s’] complaint alone is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
2

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 3 of 12
Statute of Limitations Oklahoma has employed lethal injection as the means for execution since 1977. See Okla. Stat. tit. 22 § 1014(A) (1977 supp.);3 see also Beardslee v. Woodford, 395 F.3d 1064, 1073 (9th Cir. 2005) (per curiam) (noting that in 1977, Oklahoma “became the first state to adopt lethal injection as an execution method”). Thus, the Defendants allege that the limitations period had begun in 1996 and 1997, when the Plaintiffs were sentenced to death. Defendants’ Motion to Dismiss and Brief in Support at pp. 6-7 (Sept. 6, 2005); Defendants’ Motion to Dismiss and Brief in Support at pp. 6-7 (Sept. 22, 2005). Dismissal on timeliness grounds would be proper only if the complaint showed on its face that the limitations period had expired.4 The complaint does not reflect such a failure, and the Court should reject the Defendants’ argument for dismissal based on timeliness. The period of limitations for a Section 1983 action is governed by the forum state’s law applicable to personal injury actions. See Wilson v. Garcia, 471 U.S. 261, 276-80

3

The 1977 statute provided: “The punishment of death must be inflicted by continuous,

intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination

with a chemical paralytic agent until death is pronounced by a licensed physician according to

accepted standards of medical practice.” Okla. Stat. tit. 22 § 1014(A) (1977 supp.).

4

See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 n.3 (10th Cir. 1999) (“We note

that Rule 12(b)(6) is a proper vehicle for dismissing a complaint that, on its face, indicates the

existence of an affirmative defense such as noncompliance with the limitations period.” (citations

omitted)), overruled in part on other grounds, Boyler v. Cordant Technologies, Inc., 316 F.3d 1137,

1140 (10th Cir. 2003).

3

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 4 of 12
(1985).5 In Oklahoma, the limitations period for Section 1983 actions is two years. See Meade v. Grubbs, 841 F.2d 1512, 1522 (10th Cir. 1988). However, federal law governs accrual of the cause of action. See Smith v. City, 149 F.3d 1151, 1154 (10th Cir. 1998). Under federal law, “[a] civil rights action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Baker v. Board of Regents, 991 F.2d 628, 632 (10th Cir. 1993).
The Plaintiffs are not challenging Oklahoma’s execution law or claiming that lethal injections are unconstitutional per se. See Complaint, passim. Instead, Messrs. Anderson and Taylor object to the DOC’s current procedures for lethal injections. See id., Plaintiffs’ Opposition to Defendant Rainey’s, Luttrull’s, Godlove’s, Henneke’s, Logan’s, Young’s, and Ware’s Motion to Dismiss for Failure to State a Claim and Memorandum in Support at p. 4 (Oct. 7, 2005) (enumerating claims); see also Murphy v. State, __ P.3d __, 2005 WL 3310497, Westlaw op. at 10 n.23 (Okla. Crim. App. Dec. 7, 2005) (not released for publication).6 In the complaint, the Plaintiffs do not say when the Defendants had devised

5

The Court may assume arguendo that the limitations period applies notwithstanding the

Petitioner’s request for equitable and declaratory relief. See Pepper v. Truitt, 158 F.2d 246, 250

(10th Cir. 1946) (“Since this is an equitable action, the defense of laches necessarily applies, and

the statute of limitations has relevancy by analogy only.”).

6

Thirteen days ago, the Oklahoma Court of Criminal Appeals noted that Oklahoma’s lethal

injection protocols “are not statutorily based.” Murphy v. State, __ P.3d __, 2005 WL 3310497,

Westlaw op. at 10 n.23 (Okla. Crim. App. Dec. 7, 2005) (not released for publication).

4

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 5 of 12
the current execution protocol.7 In response to the motion to dismiss, the Plaintiffs add that the DOC had waited until January 14, 2004, to publically reveal its execution procedure. Plaintiffs’ Opposition to Defendant Rainey’s, Luttrull’s, Godlove’s, Henneke’s, Logan’s, Young’s, and Ware’s Motion to Dismiss for Failure to State a Claim and Memorandum in Support at p. 19 (Oct. 7, 2005).
On its face, the complaint does not show that the claim is time-barred. And if the Plaintiffs’ allegations in the response brief are to be believed, the cause of action arguably would not have accrued until January 14, 2004. Because the complaint is not facially timebarred, the Court should overrule the Defendants’ argument for dismissal based on expiration of the limitations period.
The Plaintiffs’ Alleged Failure to State a Valid Claim Under the Fifth Amendment’s Due Process Clause The Defendants have mistakenly read the Plaintiffs’ response brief to suggest a new constitutional claim involving a lack of notice. Defendants’ Reply to Plaintiffs’ Response to Defendants’ Motion to Dismiss at p. 5 (Oct. 21, 2005). Thus, the Defendants argue that the Plaintiffs lack a constitutional right to notice and have not exhausted such a claim. Id.

7

Instead, the Plaintiffs simply state in the complaint that “since 1990,” the Defendants and

the DOC have “arbitrarily and capriciously modified the execution processes . . . .” Complaint at

p. 18.

5

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 6 of 12
at 5-6. The Plaintiffs have neither pled such a claim nor suggested one in their response brief.
In the complaint, the Plaintiffs do not assert a due process claim based on notice. They do say in the complaint that since 1990, the Defendants and the DOC have arbitrarily and capriciously modified the execution processes. Complaint at p. 18; see supra note 7. In their response brief, Messrs. Anderson and Taylor add that the constant changes deprive them of the right to be informed about the manner of execution. Plaintiffs’ Opposition to Defendant Rainey’s, Luttrull’s, Godlove’s, Henneke’s, Logan’s, Young’s, and Ware’s Motion to Dismiss for Failure to State a Claim and Memorandum in Support at p. 10 (Oct. 7, 2005). From this statement, the Defendants infer that the Plaintiffs are attempting to add a due process claim based on the uncertainty of the protocol to be used in their executions. Defendants’ Reply to Plaintiffs’ Response to Defendants’ Motion to Dismiss at pp. 5-6 (Oct. 21, 2005). The Plaintiffs have never expressed the desire to add such a claim.8

8

Such a claim would be counter-intuitive. The Plaintiffs are dissatisfied with the current

execution protocol and have brought the present action to force changes. Messrs. Anderson and

Taylor presumably hope that the execution protocol will follow scientific developments as new

information becomes available. See Plaintiffs’ Opposition to Defendant Rainey’s, Luttrull’s,

Godlove’s, Henneke’s, Logan’s, Young’s, and Ware’s Motion to Dismiss for Failure to State a

Claim and Memorandum in Support at p. 13 (Oct. 7, 2005) (arguing that the “Defendants have

refused to consider any protocol change” despite the revelation of “flaws in the execution

procedures”). Only thirteen days ago, the Oklahoma Court of Criminal Appeals discussed the state’s

protocol for lethal injections and concluded: “If Petitioner’s allegations have merit, we have every

reason to believe the necessary changes will be implemented.” Murphy v. State, __ P.3d __, 2005

WL 3310497, Westlaw op. at 10 (Okla. Crim. App. Dec. 7, 2005) (not released for publication); see

supra note 6. The Plaintiffs are not attempting to resist future changes on grounds involving a lack

of notice. Instead, the Plaintiffs are attempting to force future changes.

6

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 7 of 12

The Alleged Insufficiency of the Eighth Amendment Claim The Defendants challenge the sufficiency of an Eighth Amendment claim, arguing: (1) The Plaintiffs merely assert a difference in medical opinion; (2) DOC procedures do not violate the Eighth Amendment; and (3) the Plaintiffs have not sufficiently alleged an appreciation by state officials of a substantial risk of serious harm. Defendants’ Motion to Dismiss and Brief in Support at pp. 3-6, 7-10 (Sept. 6, 2005); Defendants’ Motion to Dismiss and Brief in Support at pp. 3-6, 7-10 (Sept. 22, 2005). The Court should reject these arguments for purposes of the motion to dismiss. I. Standard for Violation of the Eighth Amendment A prison official violates the Eighth Amendment when an inmate’s suffering is “sufficiently serious” and prison officials acted with “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). The official is guilty of “deliberate indifference” if he has a “sufficiently culpable state of mind.” Id.9

9

The Plaintiffs have asserted two Eighth Amendment claims and argue that only one of them

requires deliberate indifference. Complaint at pp. 19-20; Plaintiffs’ Opposition to Defendant

Rainey’s, Luttrull’s, Godlove’s, Henneke’s, Logan’s, Young’s, and Ware’s Motion to Dismiss for

Failure to State a Claim and Memorandum in Support at p. 4 (Oct. 7, 2005). The Defendants argue

that deliberate indifference is necessary under Section 1983 and that avoidance of this element

would require pursuit of habeas proceedings. Defendants’ Reply to Plaintiffs’ Response to

Defendants’ Motion to Dismiss at pp. 2-3 (Oct. 21, 2005).

The Plaintiffs’ distinction is not a meaningful one. Messrs. Anderson and Taylor are suing under Section 1983, and “[t]he Supreme Court has made it clear that liability under § 1983 must be predicated upon a ‘deliberate’ deprivation of constitutional rights by the defendant.” Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992). The Plaintiffs are not pursuing habeas relief, and the Court need not decide whether deliberate indifference would be required in a habeas claim. But the Defendants are correct when they argue that regardless of the distinction articulated in the complaint, the Plaintiffs must show a deliberate deprivation to prevail on a Section 1983 claim

7

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 8 of 12
II. A Difference of Medical Opinion The Defendants describe execution as a “medical procedure” and claim that the
Plaintiffs merely disagree with the “treatment prescribed by a physician” and the opinion of the DOC’s medical staff.10 Defendants’ Motion to Dismiss and Brief in Support at pp. 3-4 (Sept. 6, 2005); Defendants’ Motion to Dismiss and Brief in Support at pp. 3-4 (Sept. 22, 2005). The description is untenable on a motion to dismiss.
No party has provided the Court with a medical opinion concerning the propriety of Oklahoma’s protocol for lethal injection.11 And the parties do not agree on the protocol for execution. Compare Defendants’ Motion to Dismiss and Brief in Support at pp. 3-4 & note 3 (Sept. 6, 2005), and Defendants’ Motion to Dismiss and Brief in Support at pp. 3-4 & note 3 (Sept. 22, 2005), with Plaintiffs’ Opposition to Defendant Rainey’s, Luttrull’s, Godlove’s, Henneke’s, Logan’s, Young’s, and Ware’s Motion to Dismiss for Failure to State a Claim
involving violation of the Eighth Amendment. 10 Liability under Section 1983 cannot be based solely on disagreement regarding treatment between a prisoner and officials. See Smart v. Villar, 547 F.2d 112, 113-14 (10th Cir. 1976); see also Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993) (“As the district court noted, Mr. Johnson’s complaint [that a prescribed treatment was improper] amounts to a difference of opinion with the medical staff, which does not rise to the level of a constitutional violation.”). 11 The Defendants assert that the “Plaintiffs are challenging the medical opinion that the current procedure is acceptable for delivering a lethal dose of prescribed medication, with a minimum of suffering.” Defendants’ Motion to Dismiss and Brief in Support at p. 4 (Sept. 6, 2005); Defendants’ Motion to Dismiss and Brief in Support at p. 4 (Sept. 22, 2005). No such medical opinion appears on the face of the complaint or even in the Defendants’ briefs.
8

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 9 of 12
and Memorandum in Support at p. 3 (Oct. 7, 2005).12 Thus, the Court cannot identify the medical opinion without additional evidence, and such information would be inappropriate in the consideration of a motion to dismiss. See supra p. 2. As a result, the Defendants’ argument for dismissal is invalid. III. Whether the DOC’s Execution Protocol Causes a Substantial Risk of Injury
According to the Defendants, the DOC’s protocol does not violate the Eighth Amendment because there is not a substantial risk of injury. Defendants’ Motion to Dismiss and Brief in Support at pp. 9-10 (Sept. 6, 2005); Defendants’ Motion to Dismiss and Brief in Support at pp. 9-10 (Sept. 22, 2005). This argument is unpersuasive.
The Plaintiffs allege in the complaint that under the DOC procedure, lethal injection is carried out by personnel untrained in the use of intravenous catheters, medical personnel do not oversee the placement of intravenous catheters, improper placement and monitoring of intravenous catheters can lead to inadequate anesthesia, the executioners lack training in the interpretation of pressure feedback on intravenous lines and cannot observe or monitor the intravenous catheters, half of the anesthesia is not delivered to the inmate until after he
12 In its current website, the DOC describes the lethal injection process, stating: Sodium Thiopental causes unconsciousness. Vecuronium Bromide stops respiration. Potassium Chloride stops heart. Two intravenous lines are inserted, one in each arm. The drugs are injected by hand held syringes sequentially into the intravenous lines, alternating between the two lines. The sequence is in the order that the drugs are listed above. Saline is also injected after each drug is injected. Three executioners are utilized, with each one injecting one of the drugs.
Department of Corrections - Capital Punishment, available at http://www.doc.state.ok.us/DOCS/ CapitalP.HTM (accessed Dec. 11, 2005).
9

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 10 of 12
should already be dead, studies have revealed that the 1200 mg of anesthesia given at the
beginning of the execution might not induce unconsciousness in all persons, no one monitors
the “plane of anesthesia” during execution, in at least two instances deceased inmates have
arrived at the medical examiner’s office with unused syringes of anesthesia, the
neuromuscular blocking and heart stopping chemicals used by the DOC cause extreme pain
if administered without proper anesthesia, the chemicals used by the DOC to stop respiration
and heartbeat have been banned in the euthanasia of animals because of the pain and
suffering, other less painful chemicals are available which would serve the same function,
and in at least three executions witnesses could observe pain and anguish on the part of the
inmates. Complaint, passim. In light of these allegations, the Court should conclude that the
Plaintiffs have stated a valid claim that the DOC protocol creates an excessive risk of
substantial injury or deprivation.13
13 The Defendants deny a “deprivation” or injury under the DOC procedure, arguing that a sufficient amount of anesthesia is provided to the condemned. Defendants’ Motion to Dismiss and Brief in Support at pp. 9-10 (Sept. 6, 2005); Defendants’ Motion to Dismiss and Brief in Support at pp. 9-10 (Sept. 22, 2005). In part, the Defendants base their argument on Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004). See id. There the federal district court concluded that Virginia’s lethal injection procedures did not violate the Eighth Amendment. Reid v. Johnson, 333 F. Supp. 2d 543, 546 (E.D. Va. 2004). But Reid does not support dismissal.
First, the Court cannot go outside the complaint in ruling on a motion to dismiss. See supra p. 2. Thus, the Defendants’ reliance on medical evidence detailed in Reid v. Johnson does not support dismissal here. See, e.g., Johnston v. Crawford, Case No. 4:04CV1075, slip op. at 6 (E.D. Mo. June 13, 2005) (unpublished op.) (rejecting reliance on other court decisions on challenges to lethal injections in support of a motion to dismiss).
Second, even if the Court were to consider the medical evidence in Reid, it would not support dismissal. Messrs. Anderson and Taylor allege delivery of only 1200 mg of anesthesia before the introduction of vecuronium bromide and potassium chloride. Complaint at pp. 7, 14-15. In Reid, the court approved of Virginia’s administration of 2000 mg of anesthesia. Reid v. Johnson, 333 F.
10

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 11 of 12
IV. Whether DOC Officials Have a Sufficiently Culpable State of Mind The Eighth Amendment is violated only if the official is “aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists” and ultimately draws that inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The Defendants argue that Messrs. Anderson and Taylor have failed to allege an appreciation of the excessive risks. Defendants’ Motion to Dismiss and Brief in Support at pp. 8-9 (Sept. 6, 2005); Defendants’ Motion to Dismiss and Brief in Support at pp. 8-9 (Sept. 22, 2005). The undersigned disagrees.
The Plaintiffs have alleged that the Defendants knew or should have known about the flaws in their protocol and the “botched” executions, but have refused to take corrective action. Complaint at pp. 17-18. One reasonable inference is that the Defendants were aware of facts that would have led to recognition of a substantial risk of serious harm. See supra p. 2. V. Summary
Viewing all of the allegations and reasonable inferences favorably to the Plaintiffs, the Court should conclude that they have stated a valid claim. The allegations indicate a
Supp. 2d 543, 546 (E.D. Va. 2004). The complaint suggests that in comparison to Oklahoma officials, Virginia executioners administer 60% more anesthesia before the injection of a skeletal muscle relaxant or potassium chloride. Thus, Reid is distinguishable.
11

Case 5:05-cv-00825-F Document 43 Filed 12/20/2005 Page 12 of 12
substantial risk of serious injury during execution and deliberate indifference on the part of the Defendants. Accordingly, the Court should overrule the motion to dismiss.
Notice of Right to Object The parties can object to this report and recommendation. See 28 U.S.C. § 636(b)(1) (2000). Any such objection must be filed with the Court Clerk for the United States District Court, Western District of Oklahoma. See Haney v. Addison, 175 F.3d 1217, 1220 (10th Cir. 1999). The deadline for objections is January 10, 2006. See W.D. Okla. LCvR 72.1(a). The failure to timely object would waive one’s right to appellate review of the recommended ruling. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
Status of the Referral The referral is terminated. If the Court adopts the present recommendation, the undersigned would suggest a new referral for further proceedings. Entered this 20th day of December, 2005.
12

 </s> Case 5:05-cv-00825-F Document 44 Filed 01/11/2006 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

GLENN ANDERSON, et al.,

)

)

Plaintiffs,

)

)

vs.

) Case No. CIV-05-0825-F

)

EDWARD L. EVANS, in his capacity )

as Interim Director of Oklahoma

)

Department of Corrections, et al.,

)

)

Defendants.

)

ORDER This action is brought by plaintiffs Glenn Anderson and Charles Taylor, state prisoners who have sued under 42 U.S.C. § 1983. The named defendants have moved for dismissal. (Doc. nos. 26, 28.) On December 20, 2005, Magistrate Judge Robert E. Bacharach filed his Report and Recommendation, recommending that the court overrule the motions to dismiss. (Report at doc. no. 43.) The Report further advised that the parties can object to the Report, that any such objections must be filed by January 10, 2006, and that failure to timely object would waive the right to appellate review of the recommended ruling. No objection has been filed, and no party has requested an extension of time within which to file an objection. With no objection having been filed, and having reviewed the Report and Recommendation, the record, and the relevant arguments and authorities, the court hereby AFFIRMS, ACCEPTS, and ADOPTS the Report and Recommendation of the Magistrate Judge in its entirety. Accordingly, defendants’ motions to dismiss are DENIED. This matter is not re-referred to the magistrate judge.

Case 5:05-cv-00825-F Document 44 Filed 01/11/2006 Page 2 of 2
Defendants SHALL file their Answer to the Complaint on or before February 1, 2006.
Dated this 11th day of January, 2006.
05-0825p002(pub).wpd
-2-

 </s> Case 5:05-cv-00825-F Document 102 Filed 03/06/2007 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

GLENN D. ANDERSON; and CHARLES F. TAYLOR,
Plaintiffs, v.
JUSTIN JONES, et al., Defendants.

)

)

)

)

)

)

Case No. CIV-05-825-F

)

)

)

)

)

JOINT MOTION FOR ABEYANCE

Come now counsel for Plaintiffs and Defendants who respectfully request the Court place

the above entitled action in abeyance for a period of one year. In support of this request, the parties

state the following.

1. On February 22, 2007, the parties engaged in an early judicial settlement conference.

2. At the settlement conference an agreement was reached, the precise terms of which are

confidential to the parties.

3. In light of the agreement, the parties believe it is in the best interests of all parties that the

case be placed in abeyance for a period of one year.

4. The parties have agreed, subject to the Court’s approval, that either party may reactivate the

case within a year for any reason and that, at the expiration of the one-year period, if neither

party has reactivated the case, the case should be dismissed by the Court.

1

Case 5:05-cv-00825-F Document 102 Filed 03/06/2007 Page 2 of 3

5. Because of recent developments in Plaintiff Anderson’s habeas case,1 neither he nor Mr. Taylor will face execution during the abeyance period, or for some time thereafter. Therefore placing the case in abeyance will not put Plaintiffs’ at risk of requiring a stay of execution should the case be reactivated at the end of the one-year abeyance period.
6. Therefore, the parties respectfully request the Court place this case in abeyance for a period of one year, suspending all existing deadlines in the case. Respectfully submitted this 6th day of March, 2007,

s/ Richard N. Mann Richard N. Mann Assistant Attorney General Office of the Oklahoma Attorney General 313 N.E. 21st Street Oklahoma City, Oklahoma 73105 (405) 521-4274 (telephone) (405) 521-4518 (facsimile) richard_mann@oag.state.ok.us
ATTORNEY FOR DEFENDANTS

s/ Lisa S. McCalmont Lisa S. McCalmont, OBA No. 17096 Assistant Federal Public Defender 215 Dean A. McGee, Suite 109 Oklahoma City, OK 73102 (405) 609-5930 (telephone) (405) 609-5932 (facsimile) lisa_mccalmont@fd.org
ATTORNEY FOR PLAINTIFFS

1See Anderson v. Sirmons, __ F.3d __, Case No. 04-6397, 2007 WL 521173 (10th Cir. Feb. 21, 2007) (reversing and remanding with instructions to grant the writ).
2

Case 5:05-cv-00825-F Document 102 Filed 03/06/2007 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on this 6th day of March, 2007, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants:
Richard N. Mann Assistant Attorney General Office of the Oklahoma Attorney General 313 N.E. 21st Street Oklahoma City, Oklahoma 73105 (405) 521-4274 (telephone) (405) 521-4518 (facsimile) richard_mann@oag.state.ok.us ATTORNEY FOR DEFENDANTS
s/ Lisa S. McCalmont Lisa S. McCalmont
3

 </s> Case 5:05-cv-00825-F Document 103 Filed 03/06/2007 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

GLENN D. ANDERSON; and CHARLES F. TAYLOR,
Plaintiffs, v. JUSTIN JONES, et al.,
Defendants.

)

)

)

)

)

)

Case No. CIV-05-825-F

)

)

)

)

ORDER

This matter comes on for consideration of the parties’ Joint Motion for Abeyance [Doc.

No.102]. For good cause shown, the Court sustains the motion. This case is placed in abeyance for

a period of one year and all pending case deadlines are suspended. Either party may move to

reactivate the case at any time. If no party reactivates the case, at the end of the one-year period of

abeyance, this Court will dismiss this matter.

Dated this 6th day of March, 2007.

05-0825p026.PO.wpd

 </s> Case 5:05-cv-00825-F Document 108 Filed 06/19/2007 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

GLENN D. ANDERSON

)

AND CHARLES F. TAYLOR, )

)

Plaintiffs,

)

)

v.

)

)

JUSTIN JONES, et al.,

)

)

Defendants.

)

Case No. CIV-05-825-F

ADVICE OF MOOTNESS AS TO NAMED PLAINTIFF AND REQUEST TO WITHDRAW FROM LITIGATION

1. Plaintiff Glenn D. Anderson, through undersigned counsel, respectfully requests this Court to notice that this matter is moot only as to himself as Plaintiff, such that he requests to withdraw from this litigation as Plaintiff. The reason for this action by Plaintiff Anderson is that, on June 18, 2007, Plaintiff was re-sentenced in the courts of Oklahoma pursuant to the mandate dated April 16, 2007, in Anderson v. Sirmons, 476 F.3d 1131 (10th Cir. 2007), and to the Order of Hon. Vicki MilesLaGrange, United States District Judge, dated April 26th, 2007, to three consecutive terms of life imprisonment without possibility of parole, also running consecutively with all non-capital convictions, by Hon. Richard G. Van Dyck, District Judge, in Grady County Case No. CF-1996-240.
2. Plaintiff Anderson waived his right to appeal these sentences, and is no longer under sentence of death. Therefore his continued participation as Plaintiff herein is moot as to all issues presented in the Complaint, and his request to withdraw as Plaintiff is accordingly and respectfully made.
3.Plaintiff Charles F. Taylor will remain as the sole Plaintiff pursuing this matter at this time,

Case 5:05-cv-00825-F Document 108 Filed 06/19/2007 Page 2 of 2
and otherwise nothing in this Advice and Notice should be construed to alter the viable status, course, cause of action, or nature of this litigation, nor to affect the abeyance agreement previously approved by this Court on March 6, 2007.
4. Counsel requests that the style of this matter be changed henceforth to reflect that the sole Plaintiff is Charles F. Taylor.
Respectfully submitted this 19th day of June, 2007, by undersigned counsel for Plaintiff Glenn D. Anderson.
s/ James A. Drummond JAMES A. DRUMMOND, Oklahoma Bar No. 17096 Assistant Federal Public Defender 215 Dean A. McGee, Suite 707 Oklahoma City, OK. 73102 VOICE (405) 609-5975 FAX (405) 609-5976 jim_drummond@fd.org
CERTIFICATE OF SERVICE I hereby certify that on June 19, 2007, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing. Based on the records currently on file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF registrants: Richard N. Mann, Assistant Attorney General.
/s/James A. Drummond

 </s> Case 5:05-cv-00825-F Document 109 Filed 07/10/2007 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

GLENN D. ANDERSON and CHARLES F. TAYLOR,
Plaintiffs, v. JUSTIN JONES, et al.,
Defendants.

)

)

)

)

)

)

Case No. CIV-05-825-F

)

)

)

)

ORDER This matter comes on for consideration of Plaintiff Glenn D. Anderson’s request to withdraw from the above-styled litigation [Doc. No. 108] for the reason that his issues are moot because he is no longer under a sentence of death in the jurisdiction of the State of Oklahoma. For good cause shown, and with no objection having been filed, the Court finds that Plaintiff Anderson should be allowed to withdraw from this litigation. Plaintiff Charles F. Taylor remains as the sole Plaintiff, and the litigation remains under abeyance as this Court ordered on March 6, 2007. The style of this case shall be amended henceforth to reflect that Charles F. Taylor is the sole Plaintiff in this matter. Dated this 10th day of July, 2007.

05-0825p028.wpd

 </s> Case 5:05-cv-00825-F Document 139 Filed 12/05/08 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

CHARLES TAYLOR, Plaintiff,
vs. JUSTIN JONES, et al.,
Defendants.

) ) ) ) ) Case No. CIV-05-0825-F ) ) ) )

ORDER Defendant’s Motion to Dismiss, filed September 3, 2008, hasbeen fully briefed and is before the court for determ ination. (The motion is included in “Defendant’s Response to Memorandum and Motion to Reactivate Proceedings and Brief in Support,” doc. no. 127.) The inquiry under Rule 12(b)(6) is whehter the complaint contains enough facts to state a claim for relief that is plausible on its face. Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10 th Cir., 2007), quoting Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1969,1974 (2007). To survive a motion to dismiss, a plaintiff m ust nudge his claim s across the line from conceivable to plausible. Id. The mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims. Ridge at Red Hawk, 493 F.3d at 1177. In conducting

Case 5:05-cv-00825-F Document 139 Filed 12/05/08 Page 2 of 3
its review, the court assum es the truth of the plaintiff’s well-pleaded factual allegations and views them in the light most favorable to the plaintiff. Id.
The primary issue presented by t his action is whether the current Oklahom a protocol for execution by lethal injecti on is constitutional based on the Suprem e Court’s pronouncements in Baze v. Rees , 553 U.S. ___, 128 S. Ct. 1520 (2008). Different tests for cruel and unusual punishment are stated by various justices in Baz.e Should it ultimately be necessary to determine whether plaintiff’s evidence could meet (or create genuine issues of material fact with respect to) any of these tests, an evidentiary record would be helpful. The co urt also observes that in Baze , some justices emphasized the existence of, or l ack of, record evidence. Finally, at a minimum, evidence would provide a context for any determinations of fact or law that are ultimately required.
For these and other reasons, after carefucl onsideration, the court concludes that this action should be determined with the benefit of an evidentiary record, whether that determination occurs at the summary judgment stage or at trial.1 The court will
1The court reaches this conclusion despite th e fact that it dism issed the com plaint with prejudice in Short v. Jones, CIV-08-0339-F, under Rule 12(b)(6), Fed. R. Civ. P. (The complaint in Short cited and attached the complaint in this action.) On April 16, 2008, the date the United States Supreme Court decided Baze, the Oklahoma Attorney General requested that the Oklahoma Court of Criminal Appeals set an execution datefor Mr. Short, and Mr. Short was executed on June 17, 2008. In ruling on the Rule 12(b)(6) m otion from the bench in Short on May 21, 2008, the undersigned essentially deemed the pleadings am ended to include the current Oklahom a lethal injection protocol. That step was appropriate given the gravity of the situation and the need for an expedited resolution of the issues. Here, by contras,tthe court is aware ofno exigencies that would warrant that step, and the court has not made a similar ruling amending the pleadings. As a result, the current Oklahoma protocol cited in plaintiff’smoving papers (attached as an exhibit to doc. no. 125, app. 2) remains a matter outside the pleadings. Consideration of how that protocol fares under Baze -- the issue presented by the m otion to di smiss -- may not be undertaken without either amending the pleadings sua sponte as was done in Short or converting the m otion to one for
(continued...)
-2-

Case 5:05-cv-00825-F Document 139 Filed 12/05/08 Page 3 of 3
soon enter a scheduling order to govern th e progress of this case to an orderly and reasonably expeditious conclusion. The scheduling order will, am ong other things, set a deadline for com pletion of discovery and a deadline for m otions for summary judgment. (The order will also set a date for arguments on any motions for summary judgment that may be filed.) On the subject of discovery, the court reiterates its expectation, expressed at the recent scheduling conference, that the parties will cooperate fully and constructively so that each party will obtain the information reasonably necessary to bring this case to a conclusion, with due regard for the fact that some practical aspects of this matter (such as the consequences of identification of specific persons involved in the execution process) suggest that, in some respects, unlim ited discovery may not be appropriate. See, Rule 26 (b)(2)(C)(iii), Fed.R.Civ.P.
Defendants’ motion to dismiss is DENIED. Dated this 5th day of December, 2008.
05-0825p042.wpd
1(...continued) summary judgment, both of which the court declines to do.
-3-

 </s> Case 5:05-cv-00825-F Document 158 Filed 06/08/09 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

CHARLES F. TAYLOR, Plaintiff,
vs. JUSTIN JONES, et al.,
Defendants.

) ) ) ) ) Case No. CIV-05-0825-F ) ) ) )

ORDER On January 30, 2009, the Tenth Circuit Court of Appeals reversed the denial of Mr. Taylor’s habeas action and remanded with instructions to grant the writ as to Mr. Taylor’s conviction and death penalty, subject to the state’s right to retry Mr. Taylor within a reasonable time. See, Taylor v. Workman, 554 F.3d 879 (10th Cir. 2009). No petition for certiorari was filed with the United States Supreme Court for review of that order. Accordingly, after careful review of the parties’ papers, this court finds and concludes that Mr. Taylorno longer has standing in this action, which challenges Oklahoma’s death penalty protocol, because this action is moot with respect to Mr. Taylor. Accordingly, after careful consideration of the parties’ papers on this issue, this action is DISMISSED without prejudice because it is moot. Dated this 8th day of June, 2009.

05-0825p046.wpd

 </s> Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 1 of 17
BACHARACH, CLOSED, _BG
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:05−cv−00825−F

Anderson et al v. Jones et al Assigned to: Honorable Stephen P. Friot Cause: 42:1983 Prisoner Civil Rights Plaintiff Glenn Anderson TERMINATED: 07/10/2007
Plaintiff Charles F Taylor

Date Filed: 07/20/2005 Date Terminated: 06/08/2009 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by James A Drummond Jim Drummond Law Firm PLC 220 1/2 E Main St Suite 2 Norman, OK 73069−1350 405−310−4040 Fax: 405−310−4041 Email: jim@jimdrummondlaw.com TERMINATED: 09/26/2008
Lisa S McCalmont Federal Public Defender−OKC 215 Dean A McGee Ave Suite 109 Oklahoma City, OK 73102 405−609−5930 Fax: 405−609−5932 Email: lisa_mccalmont@fd.org TERMINATED: 04/12/2007
represented by James A Drummond (See above for address) TERMINATED: 09/26/2008
Patti P Ghezzi Federal Public Defender−OKC 215 Dean A McGee Ave Suite 109 Oklahoma City, OK 73102 405−609−5975 Fax: 405−609−5976 Email: patti_ghezzi@fd.org TERMINATED: 02/24/2009 ATTORNEY TO BE NOTICED
Susan M Otto Federal Public Defender−OKC 215 Dean A McGee Ave Suite 109 Oklahoma City, OK 73102 405−609−5930 Fax: 405−609−5932 Email: susan_otto@FD.ORG ATTORNEY TO BE NOTICED
Lisa S McCalmont (See above for address) TERMINATED: 04/12/2007
Randy A Bauman

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 2 of 17
Federal Public Defender−OKC 215 Dean A McGee Ave Suite 109 Oklahoma City, OK 73102 405−609−5975 Fax: 405−609−5976 Email: randy_bauman@fd.org ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
James Dwight Pavatt TERMINATED: 04/24/2009

represented by Patti P Ghezzi (See above for address) ATTORNEY TO BE NOTICED
Robert Nigh , Jr Brewster &DeAngelis 2617 E 21st St Tulsa, OK 74114 918−742−2021 Fax: 918−742−2197 Email: RNigh@brewsterlaw.com ATTORNEY TO BE NOTICED

V. Defendant Edward Evans Interim Director TERMINATED: 01/17/2006
Defendant Warden Mike Mullin TERMINATED: 01/17/2006 Defendant Robert L Rainey

represented by J Kevin Behrens Attorney General's Ofc−LINCOLN−OKC 4545 N Lincoln Blvd Suite 260 Oklahoma City, OK 73105−3498 405−521−4274 Fax: 405−528−1867 Email: kevin_behrens@oag.state.ok.us TERMINATED: 01/17/2006
Richard W Kirby Oklahoma Dept of Corrections Legal Division P O Box 11400 Oklahoma City, OK 73136−0400 405−425−2515 Fax: 405−425−2683 Email: richard.kirby@doc.state.ok.us TERMINATED: 12/27/2006
represented by J Kevin Behrens (See above for address) TERMINATED: 01/17/2006
represented by Kindanne C Jones Attorney General's Ofc−OKC 313 NE 21st St Oklahoma City, OK 73105 405−521−4274 Fax: 405−521−4518 Email: kindanne.jones@oag.ok.gov

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 3 of 17

ATTORNEY TO BE NOTICED

Gregory T Metcalfe Attorney General's Ofc−OKC 313 NE 21st St Oklahoma City, OK 73105 405−521−3921 Fax: 405−521−4518 Email: gmetcalfe@gablelaw.com ATTORNEY TO BE NOTICED

J Kevin Behrens (See above for address) TERMINATED: 01/17/2006

Richard N Mann Richard N Mann Attorney at Law 2 E 11th St Suite 110 Edmond, OK 73034 405−509−6835 Email: mannlaw@coxinet.net ATTORNEY TO BE NOTICED

Susan K Johnson Attorney General's Ofc−LINCOLN−OKC General Counsel−Litigation Division 4545 N Lincoln Blvd Suite 260 Oklahoma City, OK 73105−3498 405−521−4274 Fax: 405−528−1867 Email: FC_docket@oag.state.ok.us TERMINATED: 07/17/2006

Defendant W Mark Luttrell

represented by Kindanne C Jones (See above for address) ATTORNEY TO BE NOTICED

Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED

J Kevin Behrens (See above for address) TERMINATED: 01/17/2006

Richard N Mann (See above for address) ATTORNEY TO BE NOTICED

Susan K Johnson (See above for address) TERMINATED: 07/17/2006

Defendant Ernest Godlove

represented by Kindanne C Jones (See above for address) ATTORNEY TO BE NOTICED

Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 4 of 17

Defendant David C Henneke
Defendant Ted Logan
Defendant Beverly Young

J Kevin Behrens (See above for address) TERMINATED: 01/17/2006
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
Susan K Johnson (See above for address) TERMINATED: 07/17/2006
represented by Kindanne C Jones (See above for address) ATTORNEY TO BE NOTICED
Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
J Kevin Behrens (See above for address) TERMINATED: 01/17/2006
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
Susan K Johnson (See above for address) TERMINATED: 07/17/2006
represented by Kindanne C Jones (See above for address) ATTORNEY TO BE NOTICED
Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
J Kevin Behrens (See above for address) TERMINATED: 01/17/2006
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
Susan K Johnson (See above for address) TERMINATED: 07/17/2006
represented by Kindanne C Jones (See above for address) ATTORNEY TO BE NOTICED
Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 5 of 17

Defendant Earnest D Ware
Defendant John Doe 1−50 Unknown Executioners Defendant Justin Jones Director, Oklahoma Department of Corrections

J Kevin Behrens (See above for address) TERMINATED: 01/17/2006
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
Susan K Johnson (See above for address) TERMINATED: 07/17/2006
represented by Kindanne C Jones (See above for address) ATTORNEY TO BE NOTICED
Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
J Kevin Behrens (See above for address) TERMINATED: 01/17/2006
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
Susan K Johnson (See above for address) TERMINATED: 07/17/2006
represented by Kindanne C Jones (See above for address) ATTORNEY TO BE NOTICED
Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED
J Kevin Behrens (See above for address) TERMINATED: 01/17/2006
Richard W Kirby (See above for address) TERMINATED: 12/27/2006
Richard N Mann (See above for address) ATTORNEY TO BE NOTICED
Ronald A Anderson Oklahoma Dept of Corrections P O Box 11400 Oklahoma City, OK 73136

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 6 of 17

405−425−2515 Fax: 405−425−2683 Email: Ron.Anderson@doc.state.ok.us ATTORNEY TO BE NOTICED

Susan K Johnson (See above for address) TERMINATED: 07/17/2006

Defendant
Warden Marty Sirmons Oklahoma State Penitentiary

represented by Kindanne C Jones (See above for address) ATTORNEY TO BE NOTICED

Gregory T Metcalfe (See above for address) ATTORNEY TO BE NOTICED

J Kevin Behrens (See above for address) TERMINATED: 01/17/2006

Richard W Kirby (See above for address) TERMINATED: 12/27/2006

Richard N Mann (See above for address) ATTORNEY TO BE NOTICED

Ronald A Anderson (See above for address) ATTORNEY TO BE NOTICED

Susan K Johnson (See above for address) TERMINATED: 07/17/2006

Date Filed 07/20/2005
07/20/2005
07/20/2005 07/20/2005 07/21/2005 07/29/2005
07/29/2005

# Docket Text
1 COMPLAINT against Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, John Doe, Edward L Evans, Mike Mullin, Robert L Rainey, W Mark Luttrell, filed by Glenn Anderson, Charles F Taylor. (Attachments: # 1 Attachment A−Letter from DOC# 2 Attachment B−Letter from DOC# 3 Civil Cover Sheet)(db, ) (Entered: 07/21/2005)
2 MOTION for Leave to Proceed in forma pauperis by Glenn Anderson, Charles F Taylor. (Attachments: # 1 Attachment A−Anderson# 2 Attachment B−Taylor)(db, ) (Entered: 07/21/2005)
3 Previous cases (db, ) (Entered: 07/21/2005)
4 ENTRY of Appearance by Lisa S McCalmont on behalf of Glenn Anderson, Charles F Taylor (db, ) (Entered: 07/21/2005)
5 ENTER ORDER REFERRING CASE to Magistrate Judge Robert Bacharach. By Direction of Judge Stephen P. Friot on 7/21/05. (db, ) (Entered: 07/21/2005)
6 ORDER REQUIRING SERVICE re 1 Complaint, filed by Glenn Anderson,, Charles F Taylor. Signed by Judge Robert Bacharach on 7/29/05. (ch, ) (Entered: 07/29/2005)
7 REPORT AND RECOMMENDATION recommending that the 2 MOTION for Leave to Proceed in forma pauperis filed by Glenn Anderson and Charles F Taylor be denied and that payment of the filing fee be ordered within twenty days.

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 7 of 17

08/01/2005 08/01/2005 08/01/2005 08/08/2005 08/11/2005 08/11/2005 08/12/2005 08/15/2005
08/22/2005 08/22/2005 08/23/2005
08/23/2005 08/23/2005 08/23/2005 09/02/2005 09/02/2005 09/02/2005 09/02/2005 09/02/2005

Objections to RRdue by 8/18/2005. Signed by Judge Robert Bacharach on 7/29/05. (ch, ) (Entered: 07/29/2005)
8 PRAECIPE for by Glenn Anderson. (McCalmont, Lisa) (Entered: 08/01/2005)
Summons Issued as to Defendants Edward L Evans and Mike Mullin. (lb) (Entered: 08/01/2005)
9 Receipt for Money Received from Glenn Anderson and Charles Taylor in the amount of $250.00, Receipt #111656. (lb) (Entered: 08/01/2005)
Docket Annotation: Objections to Report &Recommendation are due by 8/16/05. (ch, ) (Entered: 08/08/2005)
10 SUMMONS Returned Executed by Glenn Anderson. Edward L Evans served on 8/2/2005, answer due 10/3/2005. (McCalmont, Lisa) (Entered: 08/11/2005)
11 SUMMONS Returned Executed by Glenn Anderson. Mike Mullin served on 8/3/2005, answer due 10/3/2005. (McCalmont, Lisa) (Entered: 08/11/2005)
12 OBJECTION TO REPORT AND RECOMMENDATION 7 filed by Glenn Anderson. (McCalmont, Lisa) (Entered: 08/12/2005)
13 ORDER ADOPTING 7 Report and Recommendation, DENYING as moot 2 Motion for Leave to Proceed in forma pauperis filed by Glenn Anderson, Charles F Taylor. This case remains referred to Magistrate Judge Bacharach. Signed by Judge Stephen P. Friot on 8/15/05. (llg) (Entered: 08/15/2005)
14 ENTRY of Appearance by J Kevin Behrens on behalf of Edward L Evans, Mike Mullin (Behrens, J) (Entered: 08/22/2005)
15 MOTION for Extension of Time by Edward L Evans, Mike Mullin. (Behrens, J) (Entered: 08/22/2005)
16 ORDER granting 15 Defendants' Motion for Extension of Time. Defendants are granted an additional 10 days, until September 5, 2005 to File their response to Plaintiffs' Complaint.. Signed by Judge Robert Bacharach on 08/25/05. (bf, ) (Entered: 08/23/2005)
17 PRAECIPE for Summonses by Glenn Anderson. (McCalmont, Lisa) (Entered: 08/23/2005)
18 PRAECIPE for Summonses by Glenn Anderson, Charles F Taylor. (McCalmont, Lisa) (Entered: 08/23/2005)
Summons Issued as to Defendants Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Robert L Rainey and W Mark Luttrell. (lb) (Entered: 08/23/2005)
19 SUMMONS Returned Executed by Glenn Anderson, Charles F Taylor. W Mark Luttrell served on 9/2/2005, answer due 11/1/2005. (McCalmont, Lisa) (Entered: 09/02/2005)
20 SUMMONS Returned Executed by Glenn Anderson, Charles F Taylor. Robert L Rainey served on 9/2/2005, answer due 11/1/2005. (McCalmont, Lisa) (Entered: 09/02/2005)
21 SUMMONS Returned Executed by Glenn Anderson, Charles F Taylor. Earnest D Ware served on 9/2/2005, answer due 11/1/2005. (McCalmont, Lisa) (Entered: 09/02/2005)
22 SUMMONS Returned Executed by Glenn Anderson, Charles F Taylor. Beverly Young served on 9/2/2005, answer due 11/1/2005. (McCalmont, Lisa) (Entered: 09/02/2005)
23 SUMMONS Returned Executed by Glenn Anderson, Charles F Taylor. Ted Logan served on 9/2/2005, answer due 11/1/2005. (McCalmont, Lisa) (Entered: 09/02/2005)

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 8 of 17

09/02/2005 09/02/2005 09/06/2005 09/22/2005 09/22/2005 09/26/2005 09/27/2005 10/03/2005
10/07/2005 10/10/2005 10/10/2005 10/11/2005
10/13/2005 10/14/2005
10/21/2005
10/25/2005 10/28/2005

24 SUMMONS Returned Executed by Glenn Anderson, Charles F Taylor. David C Henneke served on 9/2/2005, answer due 11/1/2005. (McCalmont, Lisa) (Entered: 09/02/2005)
25 SUMMONS Returned Executed by Glenn Anderson, Charles F Taylor. Ernest Godlove served on 9/2/2005, answer due 11/1/2005. (McCalmont, Lisa) (Entered: 09/02/2005)
26 MOTION to Dismiss and Brief in Support by Edward L Evans, Mike Mullin. (Behrens, J) (Entered: 09/06/2005)
27 ENTRY of Appearance by J Kevin Behrens on behalf of Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Robert L Rainey, W Mark Luttrell (Behrens, J) (Entered: 09/22/2005)
28 MOTION to Dismiss and Brief in Support by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Robert L Rainey, W Mark Luttrell. (Behrens, J) (Entered: 09/22/2005)
29 RESPONSE in Opposition re 26 MOTION to Dismiss and Brief in Support filed by Glenn Anderson, Charles F Taylor. (Attachments: # 1 Attachment A# 2 Attachment B# 3 Attachment C)(McCalmont, Lisa) (Entered: 09/26/2005)
30 MOTION for Order Granting Leave to File Reply by Edward L Evans, Mike Mullin. (Behrens, J) (Entered: 09/27/2005)
31 ORDER granting 30 Defendants' Motion for Order to file a reply in support of their motion to dismiss. Defendants' reply shall be limited to ten (10) pages and is due within ten (10) days of the date of this Order. . Signed by Judge Robert Bacharach on 10/03/05. (bf, ) (Entered: 10/04/2005)
32 RESPONSE to Motion re 28 MOTION to Dismiss and Brief in Support filed by Glenn Anderson, Charles F Taylor. (Attachments: # 1 Attachment A# 2 Attachment B# 3 Attachment C)(McCalmont, Lisa) (Entered: 10/07/2005)
33 ENTRY of Appearance by Richard W Kirby on behalf of Edward L Evans (Kirby, Richard) (Entered: 10/10/2005)
34 MOTION for Order Granting Leave to File Reply by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Robert L Rainey, W Mark Luttrell. (Behrens, J) (Entered: 10/10/2005)
35 ORDER granting 34 Motion for Order Granting Leave to File a Reply to Plaintiffs' Opposition to Defendants' Motion to Dismiss. Defendants' Reply shall be limited to 10 pages and is due October 21, 2005. Signed by Judge Robert Bacharach on 10/11/05. (bf, ) (Entered: 10/11/2005)
36 MOTION for Extension of Time by Edward Evans, Mike Mullin. (Behrens, J) (Entered: 10/13/2005)
37 ORDER granting 36 Defendants Edward Evans and Mike Mullin's Motion for Extension of Time to File a reply in support of their motion to dismiss. Defendants' reply is due October 21, 2005.. Signed by Judge Robert Bacharach on 10/14/05. (bf, ) (Entered: 10/14/2005)
38 REPLY to Response to Motion re 26 MOTION to Dismiss and Brief in Support, 28 MOTION to Dismiss and Brief in Support filed by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Edward Evans, Mike Mullin, Robert L Rainey, W Mark Luttrell. (Behrens, J) (Entered: 10/21/2005)
39 MOTION to Strike 38 Reply to Response to Motion, or in the alternative, Motion for Leave to File a Sur−Reply by Glenn Anderson, Charles F Taylor. (Attachments: # 1 Attachment A)(McCalmont, Lisa) (Entered: 10/25/2005)
40 ORDER denying 39 Motion to Strike 39 MOTION to Strike 38 Reply to Response to Motion, Motion for Leave to File a Sur−Reply is granted. The Court Clerk is directed to show the sur−reply, attached to Plaintiffs' motion, as filed on October 28, 2005. . Signed by Judge Robert Bacharach on 10/28/05. (bf, ) (Entered: 10/31/2005)

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 9 of 17

10/28/2005 12/12/2005
12/20/2005
12/20/2005 01/11/2006
01/13/2006 01/13/2006 01/17/2006
02/01/2006 02/01/2006 02/01/2006 02/01/2006 02/01/2006 02/01/2006 02/01/2006

41 SURREPLY re 38 Reply to Response to Motion, filed by Glenn Anderson. (db, ) (Entered: 10/31/2005)
42 NOTICE by Glenn Anderson, Charles F Taylor re 41 Surreply, 38 Reply to Response to Motion,, 32 Response to Motion, 26 MOTION to Dismiss and Brief in Support, 29 Response in Opposition to Motion, 28 MOTION to Dismiss and Brief in Support (Attachments: # 1 Attachment A# 2 Attachment B)(McCalmont, Lisa) (Entered: 12/12/2005)
43 REPORT AND RECOMMENDATION re 26 MOTION to Dismiss and Brief in Support filed by Edward Evans,, Mike Mullin,, 28 MOTION to Dismiss and Brief in Support filed by Ernest Godlove,, Beverly Young,, David C Henneke,, Robert L Rainey,, W Mark Luttrell,, Ted Logan,, Earnest D Ware, Recommending the Court overrule the Motion to Dismiss. Parties Advisedof their right to object to this RR Objections to RRdue by 1/10/2006. This R &R Terminates the referral To Judge Bacharach.. Signed by Judge Robert Bacharach on 12/20/05. (bf, ) (Entered: 12/20/2005)
Judge Robert Bacharach no longer assigned to case. (llg) (Entered: 12/20/2005)
44 ORDER ADOPTING 43 Report and Recommendation, DENYING 26 Motion to Dismiss filed by Edward Evans, Mike Mullin, DENYING 28 Motion to Dismiss filed by Ernest Godlove, Beverly Young, David C Henneke, Robert L Rainey, W Mark Luttrell, Ted Logan, Earnest D Ware. Case is not re−referred to magistrate judge. Defendants' answer due 2/1/2006. Signed by Judge Stephen P. Friot on 1/11/06. (llg) (Entered: 01/11/2006)
45 STATUS/SCHEDULING CONFERENCE DOCKET: Scheduling Conference set for 3/9/2006 09:15 AM in Chambers before Honorable Stephen P. Friot. Status Report due by 3/6/2006. (llg) (Entered: 01/13/2006)
46 MOTION to Substitute Party by Glenn Anderson, Charles F Taylor. (McCalmont, Lisa) (Entered: 01/13/2006)
47 ORDER granting 46 Plaintiffs' Unopposed Motion for Substitution of Parties Pursuant to Federal Rule of Civil Procedure 25(d). Justin Jones rep by Richard W Kirby, J Kevin Behrens, and Marty Sirmons rep by J Kevin Behrens added. Edward Evans and Mike Mullin terminated. Signed by Judge Stephen P. Friot on 1/17/06. (llg) (Entered: 01/17/2006)
48 ENTRY of Appearance by J Kevin Behrens on behalf of Justin Jones, Marty Sirmons (Behrens, J) (Entered: 02/01/2006)
49 ENTRY of Appearance by Susan K Noland on behalf of Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell (Noland, Susan) (Entered: 02/01/2006)
50 ENTRY of Appearance by Richard W Kirby on behalf of Justin Jones, Marty Sirmons (Kirby, Richard) (Entered: 02/01/2006)
51 ANSWER to Complaint with Jury Demand by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell.(Behrens, J) (Entered: 02/01/2006)
52 DISCLOSURE STATEMENT − RULE 26 by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Behrens, J) (Entered: 02/01/2006)
53 MOTION to Take Deposition from Glenn Anderson and Charles Taylor and Brief in Support by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Behrens, J) (Entered: 02/01/2006)
54 MOTION for Order Releasing Medical Examiner's Files and Brief in Support by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Attachments: # 1 Exhibit 1− List of Records requested)(Behrens, J) (Entered: 02/01/2006)

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 10 of 17

02/02/2006 02/02/2006 02/07/2006 02/10/2006 02/21/2006 02/21/2006 02/22/2006 02/23/2006 02/23/2006 02/27/2006 02/27/2006 03/02/2006 03/03/2006
03/03/2006
05/19/2006

55 ORDER striking 53 Defendants' Motion for Leave to Depose Plaintiffs, for failure to certify compliance w/the conference requirement of LCvR 37.1. Signed by Judge Stephen P. Friot on 2/2/06. (llg) (Entered: 02/02/2006)
56 ORDER Setting Hearing on 54 Defendants' MOTION for Order Releasing Medical Examiner's Files: Motion Hearing set for 2/14/2006 10:30 AM in Courtroom #305 before Honorable Stephen P. Friot. Any response by plaintiffs is due by 2/10/2006. Signed by Judge Stephen P. Friot on 2/2/06. (llg) (Entered: 02/02/2006)
57 RESPONSE to Motion re 54 MOTION for Order Releasing Medical Examiner's Files and Brief in Support filed by Glenn Anderson, Charles F Taylor. (Attachments: # 1 Exhibit 1)(McCalmont, Lisa) (Entered: 02/07/2006)
58 ORDER granting 54 Defendants' Motion for Order Releasing Medical Examiner's Files. Signed by Judge Stephen P. Friot on 2/10/06. (Attachments: # 1 Exhibit 1 − List of Inmates) (llg) (Entered: 02/10/2006)
59 ENTER ORDER. Status/Scheduling Conference reset for 3/9/2006 01:30 PM in Chambers before Honorable Stephen P. Friot. Entered at the direction of Judge Stephen P. Friot on 2/21/06. (llg) (Entered: 02/21/2006)
60 JOINT MOTION for Protective Order by Glenn Anderson, Charles F Taylor. (Attachments: # 1 Exhibit 1)(McCalmont, Lisa) (Entered: 02/21/2006)
61 PROTECTIVE ORDER. Signed by Judge Stephen P. Friot on 2/22/06. (llg) (Entered: 02/22/2006)
62 JOINT STATUS REPORT AND DISCOVERY PLAN by Plaintiffs Glenn Anderson, Charles F Taylor. (McCalmont, Lisa) (Entered: 02/23/2006)
63 MOTION for Leave to Depose Plaintiffs by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Behrens, J) (Entered: 02/23/2006)
64 ORDER Setting Hearing on 63 Defendants' MOTION for Leave to Depose Plaintiffs: Motion Hearing set for 3/3/2006 10:00 AM in Courtroom #305 before Honorable Stephen P. Friot. Any response is due by 12:00 noon on 3/2/2006. Signed by Judge Stephen P. Friot on 2/27/06. (llg) (Entered: 02/27/2006)
65 AMENDED ORDER Resetting Hearing on 63 Defendants' MOTION for Leave to Depose Plaintiffs: Motion Hearing reset for 3/3/2006 09:00 AM in Courtroom #305 before Honorable Stephen P. Friot. Any response is due by 12:00 noon on 3/2/2006. Signed by Judge Stephen P. Friot on 2/27/06. (llg) (Entered: 02/27/2006)
66 RESPONSE in Opposition re 63 MOTION for Leave to Depose Plaintiffs and Motion for a Protective Order filed by Glenn Anderson, Charles F Taylor. (McCalmont, Lisa) (Entered: 03/02/2006)
67 Minute Entry for proceedings held before Judge Stephen P. Friot: Motion Hearing held on 3/3/2006. 63 Dfts' MOTION for Leave to Depose Plaintiffs is DENIED, w/o prejudice to reassertion at a later stage. 66 Plfs' MOTION for a Protective Order in Response to Dfts' Motion to Depose Plaintiffs is STRICKEN AS MOOT. (Court Reporter Tracy Washbourne.) (llg) (Entered: 03/03/2006)
68 SCHEDULING ORDER: Motions to join due 8/1/06; Motions to amend due 8/1/06; Pla expert witness list &expert reports due 11/20/06; Dft expert witness list &expert reports due 20 days t/a; Pla witness list due 12/10/06; Pla exhibit list due 12/10/06; Dft witness list due 10 days t/a; Dft exhibit list due 10 days t/a; Motions in limine due 3/23/07; Jury instructions due 3/23/07; Voir dire requests due 3/23/07; Trial briefs due 3/23/07; Proposed Findings of Fact and Conclusions due 3/23/07; Discovery due by 3/15/2007. Jury Trial set for 4/9/2007 09:30 AM in Courtroom #305 before Honorable Stephen P. Friot. Dispositive and Daubert Motions due by 1/1/2007. Pretrial Report due by 3/23/2007. Entered at the direction of Judge Stephen P. Friot on 3/3/06. (llg) (Entered: 03/03/2006)
69 ENTRY of Appearance by Richard N Mann on behalf of Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell (Mann, Richard) (Entered: 05/19/2006)

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 11 of 17

05/19/2006 05/22/2006 07/13/2006 07/14/2006 07/17/2006 07/27/2006 07/27/2006 07/27/2006 07/28/2006 08/08/2006 08/09/2006 10/10/2006 10/11/2006
10/13/2006 10/16/2006

70 MOTION to Withdraw as Attorney by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Behrens, J) (Entered: 05/19/2006)
71 ORDER granting 70 Motion to Withdraw as Counsel of Record. Attorney J Kevin Behrens terminated. Signed by Judge Stephen P. Friot on 5/22/06. (llg) (Entered: 05/22/2006)
72 ENTRY of Appearance by Gregory T Metcalfe on behalf of Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell (Metcalfe, Gregory) (Entered: 07/13/2006)
73 MOTION to Withdraw as Counsel of Record by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Noland, Susan) (Entered: 07/14/2006)
74 ORDER granting 73 Motion to Withdraw. Signed by Judge Stephen P. Friot on 7/17/06. (lb) (Entered: 07/17/2006)
75 ENTRY of Appearance by Janis W Preslar on behalf of MEDICAL EXAMINER (Preslar, Janis) (Entered: 07/27/2006)
76 MOTION to Quash Subpoena by MEDICAL EXAMINER. (Attachments: # 1 Exhibit 1 − Subpoena# 2 Exhibit 2 − 63 O.S. 949# 3 Exhibit 3 − Order# 4 Exhibit 4 − 1974 Amendments# 5 Exhibit 5 − Medical Examiner 2005 Report# 6 Exhibit 6 − 1991 Amendement (Rule 45))(Preslar, Janis) (Entered: 07/27/2006)
77 BRIEF IN SUPPORT of Motion to Quash by MEDICAL EXAMINER. (Preslar, Janis) (Entered: 07/27/2006)
78 ORDER Setting Hearing on 76 The Office of the Chief Medical Examiner's MOTION to Quash Subpoena: Motion Hearing set for 8/9/2006 02:00 PM in Courtroom #305 before Honorable Stephen P. Friot. Plfs' response due by noon on 8/8/2006. Signed by Judge Stephen P. Friot on 7/28/06. (llg) (Entered: 07/28/2006)
79 RESPONSE in Opposition re 76 MOTION to Quash Subpoena filed by Glenn Anderson, Charles F Taylor. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(McCalmont, Lisa) (Entered: 08/08/2006)
80 ENTER ORDER striking as moot 76 The Office of the Chief Medical Examiner's Motion to Quash Subpoena, and striking 8/9/06 hearing. Entered at the direction of Judge Stephen P. Friot on 8/9/06. (llg) (Entered: 08/09/2006)
81 MOTION to Continue Deadlines by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Mann, Richard) (Entered: 10/10/2006)
82 AMENDED SCHEDULING ORDER granting 81 Defendants' MOTION to Continue Deadlines: Pla expert witness list and expert reports due 1/20/07; Dft expert witness list and expert reports due 20 days t/a; Pla witness list due 2/10/07; Dft witness list due 10 days t/a; Pla exhibit list due 2/10/07; Dft exhibit list due 10 days t/a; Motions in limine due 5/11/07; Jury instructions due 5/11/07; Voir dire requests due 5/11/07; Trial briefs due 5/11/07; Discovery due by 5/15/2007. Jury Trial set for 5/29/2007 09:30 AM in Courtroom #305 before Honorable Stephen P. Friot. Dispositive and Daubert Motions due by 3/1/2007. Pretrial Report due by 5/11/2007. Signed by Judge Stephen P. Friot on 10/11/06. (llg) (Entered: 10/11/2006)
83 MOTION for Protective Order AND REQUEST FOR EXPEDITED RESPONSE AND BRIEF IN SUPPORT by Ernest Godlove, David C Henneke, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Mann, Richard) (Entered: 10/13/2006)
84 RESPONSE to Motion re 83 MOTION for Protective Order AND REQUEST FOR EXPEDITED RESPONSE AND BRIEF IN SUPPORT filed by Glenn Anderson, Charles F Taylor. (McCalmont, Lisa) (Entered: 10/16/2006)

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 12 of 17

10/16/2006 11/03/2006 12/19/2006 12/20/2006 12/21/2006 12/27/2006 12/27/2006 12/27/2006 01/11/2007 01/11/2007
01/11/2007
01/19/2007 01/22/2007 01/22/2007 01/25/2007
01/29/2007

85 ENTER ORDER striking as moot 83 defendants' Motion for Protective Order and Request for Expedited Response. Entered at the direction of Judge Stephen P. Friot on 10/16/06. (llg) (Entered: 10/16/2006)
86 ENTRY of Appearance by Ronald A Anderson on behalf of Justin Jones, Marty Sirmons (Anderson, Ronald) (Entered: 11/03/2006)
87 JOINT MOTION for Settlement Conference by Glenn Anderson, Charles F Taylor. (McCalmont, Lisa) (Entered: 12/19/2006)
88 ORDER granting 87 Joint Motion for Settlement Conference. Signed by Judge Stephen P. Friot on 12/20/06. (llg) (Entered: 12/20/2006)
89 ORDER SETTING SETTLEMENT CONFERENCESettlement Conference set for 1/23/2007 09:00 AM in Chambers before Magistrate Judge Doyle W. Argo. Statements due by noon 1/18/07. Signed by Judge Doyle W. Argo on 12/21/06. (sr, ) Modified on 12/22/2006 (sr, ). (Entered: 12/21/2006)
90 MOTION to Withdraw as Attorney by Justin Jones, Marty Sirmons. (Kirby, Richard) (Entered: 12/27/2006)
91 NOTICE (other) by Justin Jones, Marty Sirmons re 90 MOTION to Withdraw as Attorney of Withdrawal of Counsel (Kirby, Richard) (Entered: 12/27/2006)
92 ORDER granting 90 Motion to Withdraw as Attorney. Attorney Richard W Kirby terminated. Signed by Judge Stephen P. Friot on 12/27/06. (llg) (Entered: 12/27/2006)
93 JOINT MOTION to Continue Deadlines by Glenn Anderson, Charles F Taylor. (McCalmont, Lisa) (Entered: 01/11/2007)
94 ENTER ORDER By agreement of the parties, the Settlement Conference scheduled in the abovereferenced matter for January 23, 2007, has been rescheduled to February 22, 2007, at 9:00 a.m., with Settlement Conference Statements being due by noon February 16, 2007. All other provisions of the original settlement conference order entered December 21, 2006 remain in effect.re 89 Order Setting Settlement Conference. Signed by Judge Doyle W. Argo on 1/11/07. (sr, ) (Entered: 01/11/2007)
95 SECOND AMENDED SCHEDULING ORDER granting 93 JOINT MOTION to Continue Deadlines: Pla expert witness list and expert reports due 2/9/07; Dft expert witness list and expert reports due 20 days t/a; Pla witness list due 3/9/07; Dft witness list due 10 days t/a; Pla exhibit list due 3/9/07; Dft exhibit list due 10 days t/a; Motions in limine due 5/11/07; Jury instructions due 5/11/07; Voir dire requests due 5/11/07; Trial briefs due 5/11/07; Discovery due by 5/15/2007. Jury Trial set for 5/29/2007 09:30 AM in Courtroom #305 before Honorable Stephen P. Friot. Dispositive and Daubert Motions due by 3/12/2007. Pretrial Report due by 5/11/2007. Signed by Judge Stephen P. Friot on 1/11/07. (llg) (Entered: 01/11/2007)
96 MOTION for Writ of Habeas Corpus ad testificandum by Glenn Anderson, Charles F Taylor. (McCalmont, Lisa) (Entered: 01/19/2007)
97 OBJECTIONS re 96 MOTION for Writ of Habeas Corpus ad testificandum filed by Justin Jones, Marty Sirmons. (Anderson, Ronald) (Entered: 01/22/2007)
98 MOTION for Leave to File Reply and Reply to Defendants' Opposition to Application for Writ of Habeas Corpus Ad Testificandum by Glenn Anderson, Charles F Taylor. (McCalmont, Lisa) (Entered: 01/22/2007)
99 Minute Entry for proceedings held before Judge Doyle W. Argo : Telephone Conference regarding Plaintiff's Application for Writ of Habeas Corpus Ad Testificandum Re: Glenn D. Anderson and Charles F. Taylor Doc. No. 96 held on 1/25/2007. Lisa McCalmont apprd for Plf. Ron Anderson and Richard Mann apprd for Dft. A second telephonic hearing is set for 1/29/2007 at 9:00a.m. (bc, ) (Entered: 01/25/2007)
100 Minute Entry for proceedings held before Judge Doyle W. Argo : Telephone Conference re Continuation of Hearing on Plaintiff's Application for Writ of

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 13 of 17

02/26/2007
03/06/2007 03/06/2007
04/11/2007 04/12/2007 04/12/2007 04/12/2007 06/19/2007 07/10/2007
12/03/2007 12/03/2007 12/03/2007
12/03/2007 12/03/2007 12/18/2007

Habeas Corpus Testificandum Doc. No. 96 held on 1/29/2007. Lisa McCalmont apprd for Plaintiff. Ron Anderson and Richard Mann apprd for Dft. All parties agree that the best location to conduct the Settlement Conference is at the OK State Penitentiary in McAlester,OK. Plaintiff's Application Doc. No. 96 is moot. (bc, ) (Entered: 01/29/2007)
101 ENTER ORDER The settlement conference was held on February 22, 2007, before Magistrate Judge Doyle Argo. Lisa McCalmont appeared as lead trial counsel for Plaintiffs and Richard Mann appeared as lead trial counsel for Defendants. re 94 Order, 89 Order Setting Settlement Conference. Signed by Judge Doyle W. Argo on 2/26/07. (sr, ) (Entered: 02/26/2007)
102 JOINT MOTION to Stay Case and Place Case in Abeyance by all parties. (McCalmont, Lisa) (Entered: 03/06/2007)
103 ORDER granting 102 Joint Motion for Abeyance. This case is placed in abeyance for a period of one year &all pending case ddls are suspended. Either party may move to reactivate the case at any time. If no party reactivates the case, at the end of the one−year period of abeyance, the ct will dismiss this matter. Signed by Judge Stephen P. Friot on 3/6/07. (llg) (Entered: 03/06/2007)
104 MOTION to Withdraw as Attorney by Glenn Anderson, Charles F Taylor. (McCalmont, Lisa) (Entered: 04/11/2007)
105 ORDER granting 104 Motion to Withdraw as Attorney. Attorney Lisa S McCalmont terminated. Added attorney James A Drummond for Glenn Anderson and Charles F Taylor. Signed by Judge Stephen P. Friot on 4/12/07. (llg) (Entered: 04/12/2007)
106 ENTRY of Appearance by James A Drummond on behalf of all plaintiffs (Drummond, James) (Entered: 04/12/2007)
107 NOTICE (other) by Glenn Anderson, Charles F Taylor Notice of Counsel −− protective order (Drummond, James) (Entered: 04/12/2007)
108 MOTION to Withdraw From Litigation and Change Style of the Case by Glenn Anderson. (Drummond, James) (Entered: 06/19/2007)
109 ORDER granting 108 Motion to Withdraw from Litigation. Plf Charles F Taylor remains as the sole Plf and the litigation remains under abeyance as this Court ordered on 3/6/07. The style of this case shall be amended henceforth to reflect that Charles F Taylor is the sole Plf in this matter. Signed by Judge Stephen P. Friot on 7/10/07. (lb) (Entered: 07/10/2007)
110 MOTION for Extension of Time to Extend Period of Abeyance by Charles F Taylor. (Attachments: # 1 Appendix 1 − Order Granting Stay of Execution# 2 Appendix 2 − 11/20/07 Letter from R. Mann)(Drummond, James) (Entered: 12/03/2007)
111 NOTICE of Conventional Filing by James A Drummond on behalf of Charles F Taylor (Drummond, James) (Entered: 12/03/2007)
Docket Annotation: At docket entry no. 111, counsel for plaintiff has filed a Notice of Conventional Filing. However, the document does not identify the document being filed conventionally. The Notice of Conventional Filing at docket entry no. 111 is therefore STRICKEN. Counsel for plaintiff is DIRECTED to refile his Notice of Conventional Filing. (llg) (Entered: 12/03/2007)
112 NOTICE of Conventional Filing of Motion to Compel Compliance with Judicial Settlement Agreement by James A Drummond on behalf of Charles F Taylor (Drummond, James) (Entered: 12/03/2007)
113 SEALED DOCUMENT by Charles F Taylor re 112 Notice of Conventional Filing of Motion and Brief to Compel Compliance with Judicial Settlement Agreement. (lb) (Entered: 12/04/2007)
114 OBJECTIONS to Motion to Extend Period of Abeyance filed by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Mann, Richard) (Entered:

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 14 of 17

12/18/2007 12/21/2007 12/21/2007 12/21/2007 01/09/2008 02/01/2008
06/23/2008 06/24/2008
06/25/2008 07/02/2008
07/28/2008

12/18/2007)
115 REPLY to Response to Motion re 110 MOTION for Extension of Time to Extend Period of Abeyance filed by Charles F Taylor. (Drummond, James) (Entered: 12/18/2007)
116 OBJECTIONS to Motion to Compel Compliance and Brief in Support filed by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Mann, Richard) (Entered: 12/21/2007)
117 NOTICE of Conventional Filing of Reply to Defendants' Objections to Plaintiff's Motion to Compel Compliance by James A Drummond on behalf of Charles F Taylor (Drummond, James) (Entered: 12/21/2007)
118 SEALED DOCUMENT (Reply to Defendants' Objections to Plaintiff's Motion to Compel Compliance and Brief in Support) by Charles F Taylor. (lb) (Entered: 12/26/2007)
119 ORDER Setting Hearing on 110 Plaintiff's MOTION to Extend Period of Abeyance, 113 Plaintiff's MOTION to Compel Compliance With Judicial Settlement Agreement: Motion Hearing set for 2/1/2008 01:30 PM in Courtroom #305 before Honorable Stephen P. Friot. Signed by Honorable Stephen P. Friot on 1/9/08. (llg) (Entered: 01/09/2008)
120 Minute Order. Proceedings held before Honorable Stephen P. Friot: Motion Hearing held on 2/1/2008, GRANTING 110 MOTION to Extend Period of Abeyance filed by Charles F Taylor. Case will continue in abeyance until 7/2/08. The provision for dismissal set forth in 103 Court's 3/6/07 Order VACATED. 113 MOTION to Compel Compliance With Judicial Settlement Agreement filed by Charles F Taylor is TAKEN UNDER ADVISEMENT, w/hearing cont'd to 7/2/2008 09:30 AM in Courtroom #305 Honorable Stephen P. Friot. Parties shall file any memoranda they wish to file, stating their positions as to the proposed further course of proceedings in this matter, not later than 7/1/08. (Court Reporter Alana LaGrow.) (llg) (Entered: 02/01/2008)
121 JOINT MOTION for Extension of Time to Continue Hearing and Briefing Deadline by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Mann, Richard) (Entered: 06/23/2008)
122 ENTER ORDER granting 121 JOINT MOTION to Continue Hearing and Briefing Deadline. Case will continue in abeyance. 7/2/08 Hearing on 113 Plaintiff's Motion to Compel Compliance With Judicial Settlement Agreement is STRICKEN. 7/1/08 Deadline for briefing concening Baze decision is STRICKEN. Status/Scheduling Conference set for 8/7/2008 10:30 AM in Chambers before Honorable Stephen P. Friot. No status report required. Entered at the directin of Honorable Stephen P. Friot on 6/24/08. (llg) (Entered: 06/24/2008)
123 ENTER ORDER striking 8/7/08 status/scheduling conference, to be reset. Entered at the direction of Honorable Stephen P. Friot on 6/25/08. (llg) (Entered: 06/25/2008)
124 ORDER re 113 Motion to Compel Compliance With Judicial Settlement Agreement filed by Charles F Taylor. Hearing on said motion is set for 8/22/2008 01:30 PM in Courtroom #305 before Honorable Stephen P. Friot. Plf Taylor is directed to file, by 7/28/08, a suppl brief addressing any matters thought to be relevant to the hrg, which suppl brief shall include plf's argument &authorities w/respect to the application of the decision in Baze v. Rees in the case at bar. Dfts are directed to respond to plf's suppl brief by 8/19/08. Signed by Honorable Stephen P. Friot on 7/2/08. (llg) (Entered: 07/02/2008)
125 MOTION to Reopen Case by Charles F Taylor. (Attachments: # 1 Appendix 1−Declaration of Dr. Kinsinger &CV of Dr. Kinsinger, # 2 Appendix 2−OSP Procedures for Execution of Offenders, # 3 Appendix 3, pt.1−Declaration No. 2 of Dr. M Heath, # 4 Appendix 3, pt.2−Declaration No. 2 of Dr. M Heath, # 5 Appendix 3A− CV of Dr. M Heath, # 6 Appendix 4−State of Ohio v. Rivera, # 7

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 15 of 17

08/11/2008
08/11/2008 09/03/2008
09/03/2008 09/04/2008 09/24/2008 09/24/2008 09/26/2008 09/26/2008 09/30/2008 10/29/2008
11/03/2008

Appendix 5−Harbison v. Little, # 8 Appendix 6−Report of Dr. R Cook, # 9 Appendix 6A−CV of Dr. Cook, # 10 Appendix 7−Affidavit of James Drummond, # 11 Appendix 8−Declaration No. 1 of Dr. M Heath, # 12 Appendix 9−Bispectral Indes (BIS) monitor, # 13 Appendix 10−British Journal of Anaesthesia, # 14 Appendix 11−Redacted Kentucky Protocol Released in Baze litigation, # 15 Appendix 12−Summary of Oregon's Death with Dignity Act − 2007, # 16 Appendix 13−Year 10 Annual Death with Dignity Act Report)(Drummond, James) (Entered: 07/28/2008)
126 ENTER ORDER. Status conf held on 8/11/08, striking 8/22/08 hrg re 113 Motion to Compel Compliance with Judicial Settlement Agreement filed by Charles F Taylor. Dfts granted until 9/3/08 to respond to 125 MOTION to Reactivate Proceedings filed by Charles F Taylor, or to file msj or mtn to dismiss. Plf granted until 9/24/08 to reply to dfts' response to Motion to Reactivate Proceedings or to respond to dfts' msj or mtn to dismiss, if any. Any mtn by dfts calling into question the Federal Public Defender's Office's representation of plf due 9/3/08. Entered at the direction of Honorable Stephen P. Friot on 8/11/08. (llg) (Entered: 08/11/2008)
Set/Reset Deadlines as to 125 MOTION to Reactivate Proceedings. Response due by 9/3/2008. Reply due by 9/24/2008. (llg) (Entered: 08/11/2008)
127 REPLY to Response to Motion re 125 MOTION to Reopen Case and Brief in Support filed by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Attachments: # 1 Exhibit 1 Transcript of Motion to Dismiss)(Mann, Richard) (Entered: 09/03/2008)
128 MOTION to Dismiss by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell (SEE DOC. NO. 127 FOR IMAGE). (llg) (Entered: 09/04/2008)
129 ENTER ORDER granting 125 Plaintiff's Motion to Reactivate Proceedings. Stay of case is LIFTED. Plaintiff's response to 128 Defendants' Motion to Dismiss is due 9/24/08. Any necessary reply is due 11 days thereafter. Entered at the direction of Honorable Stephen P. Friot on 9/4/08. (llg) (Entered: 09/04/2008)
130 RESPONSE to Motion re 128 MOTION to Dismiss Plaintiff's Response to Defendants' Motion to Dismiss filed by Glenn Anderson. (Attachments: # 1 Exhibit 1−Terry Lynn Short Complaint, # 2 Exhibit 2−John David Duty v. Sirmons)(Drummond, James) (Entered: 09/24/2008)
Docket Annotation: Docket entry no. 130 is hereby clarified to reflect that the response to motion is filed on behalf of plaintiff Charles Taylor, not Glenn Anderson, as indicated in the docket entry. (lb) (Entered: 09/24/2008)
131 MOTION to Withdraw as Attorney of Record by Charles F Taylor. (Drummond, James) (Entered: 09/26/2008)
132 ORDER granting 131 Motion to Withdraw as Attorney. Added attorney Randy A Bauman for Charles F Taylor. Attorney James A Drummond terminated. Signed by Honorable Stephen P. Friot on 9/26/08. (llg) (Entered: 09/26/2008)
133 ENTRY of Appearance by Randy A Bauman on behalf of Charles F Taylor (Bauman, Randy) (Entered: 09/30/2008)
134 ORDER. Status/Scheduling Conference set for 11/18/2008 03:00 PM in Chambers before Honorable Stephen P. Friot. Counsel should be prepared to discuss a schedule for the orderly resolution of all remaining issues in this case, including the scheduling of any evidentiary hearings thought to be necessary. If counsel are able to reach agreement as to a schedule, they should feel free to bring a proposed scheduling order to the conference. It will not be necessary to submit a status report. Signed by Honorable Stephen P. Friot on 10/29/08. (llg) (Entered: 10/29/2008)
135 ORDER Resetting Status Conference. Status/Scheduling Conference previously set for 11/18/2008 03:00 PM is reset for 11/21/2008 02:00 PM in Chambers before Honorable Stephen P. Friot. Signed by Honorable Stephen P. Friot on 11/3/08. (llg) (Entered: 11/03/2008)

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 16 of 17

11/21/2008 11/21/2008
12/01/2008 12/05/2008 12/10/2008
12/15/2008 12/15/2008 01/05/2009 02/02/2009 02/03/2009 02/24/2009 02/24/2009 02/24/2009 02/24/2009

136 ENTRY of Appearance by Susan M Otto on behalf of Charles F Taylor (Otto, Susan) (Entered: 11/21/2008)
137 Minute Entry for proceedings held before Honorable Stephen P. Friot: Status/Scheduling Conference held on 11/21/2008. Ct will rule on 128 Defendants' Motion to Dismiss &will then, if the mtn is denied, enter a standard scheduling order, w/trial not before Aug 2009. If dfts wish to further respond to 113 Plaintiff's Motion to Compel Compliance With Judicial Settlement Agreement, they shall so advise the crtrm deputy by 12/1/08. Upon any such advice, dfts will be allowed a reasonable period of time to further respond to the mtn to compel compliance. Plf will be permitted to reply w/i 11 days. (llg) (Entered: 11/21/2008)
138 ENTER ORDER. Dfts are granted until 12/15/08 to further respond to 113 Plaintiff's Motion to Compel Compliance With Judicial Settlement Agreement. Plf may reply to dfts' response by 1/5/09. Entered at the direction of Honorable Stephen P. Friot on 12/1/08. (llg) (Entered: 12/01/2008)
139 ORDER denying 128 Motion to Dismiss. Signed by Honorable Stephen P. Friot on 12/5/08. (lb) (Entered: 12/05/2008)
140 THIRD AMENDED SCHEDULING ORDER: Pla expert witness list and expert reports due 5/20/09; Dft expert witness list and expert reports due 20 days t/a; Pla witness list due 6/10/09; Dft witness list due 10 days t/a; Pla exhibit list due 6/10/09; Dft exhibit list due 10 days t/a; Dispositive and Daubert Motions due 7/1/09; Discovery ddl 9/15/2009; Hearing on motions for summary judgment set for 9/25/2009 09:00 AM in Courtroom #305 Honorable Stephen P. Friot; Motions in limine due 9/25/09; Trial briefs due 9/25/09; Proposed Findings of Fact and Conclusions due 9/25/09; Pretrial Report due 9/25/09; Bench Trial set for 10/13/2009 09:30 AM in Courtroom #305 before Honorable Stephen P. Friot. Entered at the direction of Honorable Stephen P. Friot on 12/10/08. (llg) (Entered: 12/10/2008)
141 MOTION to Supplement Brief in support of Object by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Jones, Kindanne) (Entered: 12/15/2008)
Docket Annotation: At docket entry no. 141, defendants have filed a Supplemental Brief which has been incorrectly docketed as a "Motion to Supplement." The court deems the filing to be defendants' Supplemental Brief and hereby terms the document as a motion. (llg) (Entered: 12/15/2008)
142 REPLY by Plaintiff Charles F Taylor re 113 Sealed Document Motion to Compel Compliance with Settlement Agreement filed by Charles F Taylor. (Bauman, Randy) (Entered: 01/05/2009)
143 NOTICE (other) by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell of Tenth Circuit Decision (Mann, Richard) (Entered: 02/02/2009)
144 RESPONSE to Notice of Decision filed by Charles F Taylor. (Attachments: # 1 Attachment A−Taylor v. Workman, Case No. 07−7030, # 2 Attachment B− Wilson/Wackerly v. Sirmons, Case No. 06−5179)(Bauman, Randy) (Entered: 02/03/2009)
145 ENTRY of Appearance by Robert Nigh, Jr on behalf of James Dwight Pavatt (Nigh, Robert) (Entered: 02/24/2009)
146 MOTION to Intervene and Brief in Support by James Dwight Pavatt. (Attachments: # 1 Attachment Complaint)(Nigh, Robert) (Entered: 02/24/2009)
147 ENTRY of Appearance by Patti P Ghezzi on behalf of Charles F Taylor (Ghezzi, Patti) (Entered: 02/24/2009)
148 ENTRY of Appearance by Patti P Ghezzi on behalf of James Dwight Pavatt (Ghezzi, Patti) (Entered: 02/24/2009)

Case: 5:05-cv-00825-F As of: 03/18/2012 04:46 PM CDT 17 of 17

02/24/2009 03/11/2009
03/17/2009 03/17/2009 03/17/2009 04/06/2009 04/07/2009 04/24/2009
05/06/2009 05/15/2009 05/28/2009 06/08/2009 06/08/2009

NOTICE from the Court STRIKING 147 Entry of Appearance by Patti P Ghezzi on behalf of Charles F Taylor. The Entry of Appearance has been correctly filed, on behalf of James Dwight Pavatt, at docket entry no. 148. The court hereby terms Patti P Ghezzi as attorney for Charles F Taylor. (llg) (Entered: 02/24/2009)
149 OBJECTIONS re 146 MOTION to Intervene and Brief in Support filed by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Attachments: # 1 Exhibit 1 DOC Offender Lookup Detail, # 2 Exhibit 2 Request to Staff, # 3 Exhibit 3 Inmate Offender Grievance Form, # 4 Exhibit 4 Greiveances Returned, # 5 Exhibit 5 Appeal Form, # 6 Exhibit 6 Grievance Unanswered, # 7 Exhibit 7 Affidavit)(Mann, Richard) (Entered: 03/11/2009)
150 MOTION for Extension of Time to File Response/Reply to Defendants' Objection to Motion to Intervene by James Dwight Pavatt. (Ghezzi, Patti) (Entered: 03/17/2009)
NOTICE from the Court re 150 James Pavatt's APPLICATION for Extension of Time to File Reply to Defendants' Objection to Motion to Intervene. Counsel for Mr. Pavatt are reminded that, in the future, they should include all counsel of record on their certificate of service, including plaintiff Charles Taylor's counsel. (llg) (Entered: 03/17/2009)
151 ORDER granting 150 James Pavatt's Application for Extension of Time to File Reply re 146 MOTION to Intervene and Brief in Support. Reply due by 4/6/2009. Signed by Honorable Stephen P. Friot on 3/17/09. (llg) (Entered: 03/17/2009)
152 REPLY to Response to Motion re 146 MOTION to Intervene and Brief in Support filed by James Dwight Pavatt. (Ghezzi, Patti) (Entered: 04/06/2009)
153 ORDER Setting Hearing on 146 James Pavatt's MOTION to Intervene: Motion Hearing set for 4/24/2009 09:00 AM in Courtroom #305 before Honorable Stephen P. Friot. Signed by Honorable Stephen P. Friot on 4/7/09. (llg) (Entered: 04/07/2009)
154 Minute Order. Proceedings held before Honorable Stephen P. Friot: Motion Hearing held on 4/24/2009. 146 MOTION to Intervene and Brief in Support filed by James Dwight Pavatt is DENIED. Defense counsel is directed to file a notification, by 5/6/09, advising the ct as to whether the State has filed a petition for writ of certiorari in plf's habeas case. If a petition for writ of certiorari is not filed, counsel for plf will have 10 days after 5/6/09 to a file a memorandum advising the ct as to why this case should not be dismissed as moot. Dfts will have 10 days after plf's filing to file a response. (Court Reporter Tracy Washbourne.) (llg) (Entered: 04/24/2009)
155 NOTICE (other) by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell (Mann, Richard) (Entered: 05/06/2009)
156 RESPONSE re 155 Notice (other), 154 Order on Motion to Intervene,,, Motion Hearing,, to Court &Memorandum Brief Conditionally Objecting to Dismissal filed by Charles F Taylor. (Bauman, Randy) (Entered: 05/15/2009)
157 REPLY to Response to Motion re 128 MOTION to Dismiss filed by Ernest Godlove, David C Henneke, Ted Logan, Beverly Young, Earnest D Ware, Justin Jones, Marty Sirmons, Robert L Rainey, W Mark Luttrell. (Mann, Richard) (Entered: 05/28/2009)
158 ORDER DISMISSING CASE without prejudice because it is moot. Signed by Honorable Stephen P. Friot on 6/8/09. (llg) (Entered: 06/08/2009)
159 JUDGMENT. Signed by Honorable Stephen P. Friot on 6/8/09. (llg) (Entered: 06/08/2009)


[CONTENT] July 20, 2005 | two | the Oklahoma State Penitentiary | McAlester | Oklahoma | 42 | 1983 | the Oklahoma Department of Corrections | District Court | the Western District | Oklahoma ||| Anderson | Taylor | Court | Constitution ||| 1 | anesthesia | 2 | 3 | 4 | IV ||| Court ||| August 15, 2005 | Bacharach ||| September 6, 2005 | Court | Anderson | Taylor ||| December 20, 2005 | Bacharach | the District Court ||| January 11, 2006 | the District Court | Stephen P. Friot | Magistrate ||| Anderson v. Evans | 2006 | WL 83093 ||| Jan. 11, 2006 ||| December 19, 2006 ||| February 22, 2007 | Magistrate | Doyle Argo ||| March 6, 2007 | the District Court | one year ||| a year | Anderson ||| District Court | a year ||| June 19, 2007 | Plaintiff Anderson | Court |||  ||| July 10, 2007 | the District Court | Friot | Anderson | Taylor ||| June 8, 2009 | the United States | District Court | the Western District | Oklahoma ||| The District Court | the Tenth Circuit Court of Appeals | the District Court's | State ||| the District Court | Plaintiff Taylor ||| Docket | June 8, 2009 [SUMMARY] On July 20, 2005, two death-sentenced inmates of the Oklahoma State Penitentiary in McAlester, Oklahoma, filed a lawsuit under 42 U.S.C. § 1983 against the Oklahoma Department of Corrections in the U.S. District Court for the Western District of Oklahoma.  Anderson and Taylor complained to the Court that the lethal injection procedure used by the defendants during executions violated the Constitution by inflicting enormous amounts of pain on the executed prisoner.  Specifically, they claimed that the defendants 1) violated medically approved procedures by failing to employ properly trained people to inject the anesthesia, 2) arbitrarily and unnecessarily used drugs and drug dosages that created significant risks that the condemned prisoner would suffer unnecessary pain, 3) used a sequence of drug administration that delays administration of the anesthetic until after the prisoner is dead, 4) delivered the drugs through alternating IV lines, impairing control over the timing and sequence of drug delivery and increasing the risk of drug administration failure.  Due to these concerns, the plaintiffs asked the Court to stay their executions and to enjoin the defendants from using the lethal injection procedure that they normally used.  

On August 15, 2005, the case was referred to Magistrage Judge Bacharach.  On September 6, 2005, the defendants asked the Court to dismiss the plaintiff's complaint, arguing that the Anderson and Taylor had failed to show any likelihood that their claim would succeed at trial.  On December 20, 2005, Judge Bacharach filed a report stating that the plaintiffs had demonstrated that they had a viable claim and recommending that the District Court should overrule the defendants' motion to dismiss.  On January 11, 2006, the District Court (Judge Stephen P. Friot) adopted the Magistrate's recommendation and overruled the motion to dismiss.  Anderson v. Evans, 2006 WL 83093 (W.D.Okla. Jan. 11, 2006).

On December 19, 2006, the parties initiated a settlement conference and sought asistance from the court.  On February 22, 2007, the parties held their settlement conference with Magistrate Judge Doyle Argo. On March 6, 2007, the parties entered a joint motion asking the District Court to stay the case and place it in abeyance for a period of one year.  We're not sure exactly why the defendants agreed to put off the case for a year, but their motion mentions "recent developments in Plaintiff Anderson's habeas case" and states that neither of the plaintiffs would "face execution during the abeyance period, or for some time thereafter."  The District Court agreed to place the lawsuit on hold for a year.  

On June 19, 2007, Plaintiff Anderson asked the Court to allow him to withdraw from the case.  Apparently, he had been re-sentenced to life in prison without parole, so he was no longer facing execution.  On July 10, 2007, the District Court (Judge Friot) allowed Anderson to withdraw from the case, and the case was renamed "Taylor v. Jones."  

On June 8, 2009 the United States District Court for the Western District of Oklahoma dismissed the case without prejudice because the remaining named defendant lacked standing.  The District Court held that "the Tenth Circuit Court of Appeals reversed the District Court's denial of the plaintiff's writ of habeas corpus and remanded with instructions to grant the writ as to his conviction and execution subject to the State's right to re-try the case within a reasonable time." Accordingly, the District Court found that the issue was moot as to Plaintiff Taylor, which called for a dismissal of the case. 

The Docket shows that the case was terminated as of June 8, 2009.

