Price v State of Alabama

8/11/2019 Price v State of Alabama

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ALABAMA

CHRISTOPHER LEE PRICE,

Plaintiff,

v.

KIM THOMAS, COMMISSIONER,

ALABAMA DEPARTMENT OF

CORRECTIONS, in his official

capacity,

WALTER MYERS, ACTING

WARDEN, HOLMAN

CORRECTIONAL FACILITY, in

his official capacity, and

OTHER UNKNOWN

EMPLOYEES AND AGENTS,

ALABAMA DEPARTMENT OF

CORRECTIONS, in their official

capacities,

Defendants.

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Case No. 14-cv-472

COMPLAINT

NATURE OF THE ACTION

1.

Plaintiff Christopher Lee Price is a death row inmate who

resides in Alabamas Holman Correctional Facility.

Case 1:14-cv-00472-KD-C Document 1 Filed 10/08/14 Page 1 of 20


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2. On September 11, 2014, the State of Alabama asked the

Alabama Supreme Court to set an execution date for Mr. Price. The States

motion is pending, and Mr. Prices opposition is due on October 9, 2014.

3. The State intends to execute Mr. Price using a brand new three-

drug protocol that (a) has never been tried on any prisoner in the United

States, (b) has never been reviewed, let alone blessed, by any state or federal

court, and (c) utilizes the same sedative, midazolam hydrochloride, that

Arizona, Oklahoma, and Ohio used in recent botched executions that

resulted in substantial public criticism and ongoing Department of Justice

scrutiny.

4.

If the State is allowed to use its new three-drug protocol on Mr.

Price, Mr. Price will be subjected to cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments to the United States

Constitution. Mr. Price therefore brings this action pursuant to

42 U.S.C. 1983 to enjoin the State from carrying out his execution in the

manner that the State has proposed.

JURISDICTION AND VENUE

5.

This court has jurisdiction pursuant to 28 U.S.C. 1331,

1343(a), 2201, and 2202.

6. Venue is appropriate in this court pursuant to 28 U.S.C.

1391(b).



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PARTIES

7.

Mr. Price is a United States citizen and resident of the State of

Alabama. He is currently imprisoned under the supervision of the

defendants.

8. Defendant Kim Thomas is the Commissioner of the Alabama

Department of Corrections (the DOC). Mr. Thomas has served in this

position since January 17, 2011.

9.

Defendant Walter Myers is currently acting as Warden of the

Holman Correctional Facility in Atmore, Alabama, where Mr. Price is

currently incarcerated and where Alabama conducts its executions by lethal

injection. By state statute, Defendant Myers is responsible for carrying out

Mr. Prices execution or delegating that responsibility to another member of

Holmans prison staff.

10.

Unknown Employees and Agents of the DOC are involved in

the development of Alabamas lethal injection protocol and the carrying out

of executions by lethal injection. Mr. Price does not know the identities of

these persons.

11.

All defendants are being sued in their official capacities.

JUSTICIABLE CASE OR CONTROVERSY

12. There is an actual and justiciable case or controversy between

the parties. Specifically, absent judicial intervention, the State plans to



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execute Mr. Price using a novel, untested three-drug protocol that Defendant

Thomas unilaterally decided to adopt on September 10, 2014. As further

described herein, this new three-drug protocol is substantially likely to

subject Mr. Price to extreme pain, in violation of the Eighth and Fourteenth

Amendments to the United States Constitution and well-established United

States Supreme Court precedent.

13.

Upon information and belief, there is no administrative process

through which Mr. Price can challenge the drugs or other procedures to be

utilized in carrying out his death sentence.

14.

As described further herein, the new three-drug protocol that

the State now intends to use on Mr. Price materially differs from the lethal

injection protocols that Alabama has used on all previous inmates. Mr.

Prices constitutional claims under 42 U.S.C. 1983 are thus timely.

PROCEDURAL BACKGROUND

15. When Mr. Price was a senior in high school, he participated in a

burglary during which the homeowner, William Lynn, was killed. At the

time of the crime, Mr. Price had neither a serious criminal record nor any

reported history of violence. Mr. Price was represented by court-appointed

counsel who inexplicably chose not to introduce mitigation evidence during

the penalty phase of Mr. Prices trial. Despite his trial counsels failings,



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Mr. Prices direct and collateral challenges to his death sentence were

unsuccessful.

16.

On September 11, 2014, the State asked the Alabama Supreme

Court to set an execution date for Mr. Price. Mr. Prices opposition to the

States motion is due on October 9, 2014.

FACTUAL ALLEGATIONS

A. Execution by Lethal Injection

17.

In 2002, the Alabama abandoned the use of the electric chair in

favor of lethal injection.

18.

In every state that utilizes a three-drug lethal injection protocol,

including Alabama, some form of potassium chloride is used to stop the

inmates heart. Medical experts and law enforcement authorities agree that,

unless the inmate is completely unconscious and insensate, the

administration of potassium chloride will cause the inmate prolonged pain,

including an excruciating burning sensation throughout the entire body,

similar to the physical pain and suffering that one would experience if he

were burned at the stake. Indeed, because it causes such intense pain and

suffering, the American Veterinary Medical Association absolutely prohibits

the use of potassium chloride to euthanize animals unless the animal is first

placed in a state of complete, total, and deep general anesthesia.



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19. In addition to potassium chloride, Alabamas three-drug

protocol includes the paralytic agent rocuronium bromide. The drug is the

administered second, prior to the potassium chloride. The drug does not

affect consciousness or the perception of pain. Instead, it causes paralysis of

the muscles, including the diaphragm. If an individual who is not fully

unconscious and insensate is given the drug, the individual will feel as

though he is being forcibly suffocated. The individuals suffering, however,

is invisible to observers because the total body paralysis prevents the

individual from crying out in pain.

20.

Alabama is not the only state that utilizes a paralytic agent in its

execution protocol; Florida, for example, also uses a paralytic agent, though

not rocuronium bromide.

B. The Alabama DOCs Recent Decision to Use a Sedative, Rather

Than a General Anesthetic, Prior to the Administration of

Rocuronium Bromide and Potassium Chloride

21.

In order to comply with the Constitutions prohibition on cruel

and unusual punishment, every state that utilizes a three-drug lethal injection

protocol has adopted a drug protocol that seeks to render the inmate

unconscious and insensate prior to the administration of the potassium

chloride and the paralytic agent. In other words, the first drug in every

three-drug protocol is intended not to kill the inmate, but rather to render the

inmate unconscious and insensate.



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22. From 2002 through 2013, the Alabama DOC used either

sodium thiopental or pentobarbital to render the inmate unconscious and

insensate prior to the administration of potassium chloride.

23. On September 10, 2014, however, Defendant Kim Thomas

unilaterally amended the Alabama DOCs multi-drug protocol. Under the

new protocol, neither sodium thiopental nor pentobarbital will be used on

Mr. Price. Instead, the DOC will use seek to render Mr. Price unconscious

and insensate by delivering 500 milligrams of midazolam hydrochloride at

the outset of the execution.

24.

Midazolam hydrochloride is a sedative that is not generally

used clinically as a stand-alone general anesthetic. Midazolam

hydrochloride is not an analgesic and does not suppress responses to noxious

stimuli. Unlike sodium thiopental, midazolam hydrochloride will not induce

general anesthesia sufficient to prevent an individual from perceiving and

feeling pain from noxious stimuli such as rocuronium bromide and

potassium chloride, even at high doses. In other words, unlike sodium

thiopental, it is substantially likely that midazolam hydrochloride will not

render Mr. Price unconscious and insensate to the pain and suffering

associated with rocuronium bromide (paralysis including forced suffocation)

and potassium chloride (venous burning and stoppage of the heart).



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25. Defendant Thomass decision to utilize midazolam

hydrochloride instead of a medically-accepted general anesthetic (or a

combination of midazolam hydrochloride and a medically-accepted general

anesthetic) was not based on medical literature or the advice of medical

experts. Instead, Defendant Thomass decision was based on the fact that

sodium thiopental, pentobarbital, and all other similar general anesthetics are

presently unavailable to the Alabama DOC for use in executions. Cf.

generally Cook v. FDA, 733 F.3d 1 (D.C. Cir. 2013) (discussing the present

unavailability of sodium thiopental for use in executions).

26.

In response to sodium thiopental and pentobarbital shortages,

several other states already have executed inmates pursuant to multi-drug

protocols that utilize midazolam hydrochloride. Consistent with the

warnings of medical experts, the midazolam hydrochloride has not reliably

rendered inmates unconscious and insensate while the drugs that ultimately

cause death are administered. The result has been a series of botched

that is, prolonged and ghastly executions that have drawn both public

criticism and Department of Justice scrutiny. Three of these botched

executions have occurred in the past 9 months. In Arizona, for example, an

inmate received 750 milligrams of midazolam hydrochloride along with a

lethal dose of hydromorphone. Just as numerous medical experts predicted,

the midazolam hydrochloride failed to render the inmate unconscious and



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insensate. As a result, the inmate died only after visibly and audibly gasping

for air 600 times over the course of nearly two hours. Similar, in Ohio, an

inmate who received midazolam hydrochloride remained conscious and

sensate during his execution, making loud snorting noises, visibly and

audibly gasping for air. And, in Oklahoma, an inmate dosed with 100

milligrams of midazolam hydrochloride was initially declared unconscious

but, after potassium chloride was administered, repeatedly twitched, writhed,

groaned, and called out oh man before dying over 30 minutes later. The

scene was so gruesome that prison officials tried (but failed) to stop the

execution midway through.

27.

The Alabama DOC is aware that the use of midazolam

hydrochloride is substantially likely to result in an execution that is wanton

and cruel in that Mr. Price will experienced prolonged and excruciating pain

and suffering while the rocuronium bromide forcibly suffocates him and the

potassium chloride burns his veins and internal organs and stops his heart.

The Alabama DOC is ambivalent to this infliction of pain and suffering, as

evidenced by the fact that, unlike several other states, it chose not to explore

and adopt a reasonably available alternative method of execution that would

not subject Mr. Price to such pain and suffering.

28. As further evidence of the DOCs ambivalence, its description

of the lethal injection protocol that it intends to use on Mr. Price makes no



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mention whatsoever of a consciousness check prior to the administration

of the rocuronium bromide and potassium chloride. On information and

belief, Mr. Price alleges that the Alabama DOC does not intend to have

qualified personnel perform a consciousness check on Mr. Price prior to

the administration of the last two drugs in the protocol.

29. Moreover, even if a consciousness check were performed by

qualified DOC personnel that is, personnel who are adequately trained to

interpret the results of a properly implemented eyelash brush test or pinch

test it would not provide a reliable indication of whether Mr. Price

would be unconscious and insensate for the remainder of the execution

procedure. This is because, even where a large dose of midazolam

hydrochloride induces a state of anesthesia in an inmate, it is not a deep state

of anesthesia, and the rocuronium bromide and potassium chloride are

substantially likely to cause pain and suffering that will break through the

midazolam hydrochloride. This substantial risk of break through pain and

suffering is precisely the reason why, in the past, the Alabama DOC used

sodium thiopental or pentobarbital and not midazolam hydrochloride

as the first drug in the lethal injection protocol.

30.

The Alabama DOC believes that its new three-drug protocol is

immune from constitutional challenges because it is virtually (though not

actually) identical to the three-drug protocol that Florida began using in



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2013. Floridas execution protocol, however, has not been subject to any

judicial review since the botched executions in Arizona and Oklahoma, and

it has never been subjected to the de novoreview of the Eleventh Circuit

Court of Appeals.

31. Florida has executed at least six inmates with a drug cocktail

that includes midazolam hydrochloride. The only reason that these

executions have superficially appeared compliant with the Eighth and

Fourteenth Amendments ban on cruel and unusual punishment is because

Floridas use of a paralytic agent makes it impossible for the inmate to

signal, either audibly or visibly, to observers that he is experiencing a

constitutionally intolerable degree of pain and suffering while the paralytic

agent forcibly suffocates him and the potassium chloride burns his veins and

internal organs and stops his heart.

32.

The Constitution does not allow a state to subject a death row

inmate to prolonged and excruciating pain and suffering, regardless of

whether the state takes steps to ensure that the inmates pain is invisible to

third-party observers.

C. Alabamas Attempt to Avoid Judicial Scrutiny of Its Lethal

Injection Protocol

33. Before Defendant Thomas unilaterally amended the Alabama

DOCs three-drug protocol, the United States Court of Appeals for the



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Eleventh Circuit already had ordered the United States District Court for the

Middle District of Alabama to carefully examine Alabamas execution

methods. In particular, on March 23, 2012, the Eleventh Circuit stayed the

execution of Holman inmate Thomas Arthur pending the district courts

fact-finding as to whether the Alabama DOCs then-prevailing drug protocol

carried a substantial risk of causing Mr. Arthur an unconstitutional degree of

pain.

34.

The Eleventh Circuits stay of Mr. Arthurs execution acted as a

de facto stay of all executions in Alabama. Defendant Thomas believes that

a side benefit of changing the DOCs new three-drug protocol is that it will

moot Mr. Arthurs pending constitutional challenge to the DOCs old

protocol.

D. Medical Evidence Demonstrates That Midazolam Hydrochloride

Will Not Render Mr. Price Unconscious and Insensate While the

Paralytic Agent and Potassium Chloride Forcibly Suffocate Him,

Burn His Veins and Internal Organs, and Stop His Heart

35.

Midazolam hydrochloride is a benzodiazepine. Its FDA

approved uses include sedation, anxiolysis (relief of fear and anxiety), and

amnesia (inducing loss of memory). Midazolam hydrochloride can also

depress respiration when administered in sufficient doses.

36. Unlike sodium thiopental and pentobarbital, midazolam

hydrochloride is not a barbiturate. It is not generally administered to



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suppress responses to noxious stimuli and does not act as an analgesic. The

sedative properties of midazolam hydrochloride do not suppress responses to

noxious stimuli. A person who is sedated can still experience stimuli,

including painful stimuli. The amnesia-inducing properties of midazolam

hydrochloride may prevent a person from rememberingthe pain and

suffering he experienced while under the effects of the drug. However, even

if the individual suffers from a lack of memory afterthe fact, the individual

is absolutely experiencing pain and suffering during the fact. Unlike sodium

thiopental, even at high doses, midazolam hydrochloride will not induce a

state of anesthesia sufficiently deep to prevent an individual from perceiving

and feeling the pain and suffering associated with rocuronium bromide and

potassium chloride.

37.

For these reasons, it is substantially likely that Mr. Price will

consciously suffer the paralysis and suffocation from the administration of

rocuronium bromide and the intense burning pain from the administration of

potassium chloride. This suffering is substantially likely to occur

notwithstanding any consciousness checks performed prior to the

administration of the second and third drugs because, even when carried out

properly by qualified personnel, such tests do not replicate the intensity of

pain associated with the administration of potassium chloride. In other

words, it is substantially likely that the intense pain associated with



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rocuronium bromide and potassium chloride will break through whatever

state of general anesthesia the midazolam hydrochloride might initially

induce.

38. In the botched Arizona execution in April 2014, the inmate

received 750 milligrams of midazolam hydrochloride, yet the inmate was not

rendered unconscious and insensate and died only after visibly and audibly

gasping for air 600 times over the course of nearly two hours. Medical

experts believe that a reason for this failure to render the inmate unconscious

and insensate may be that the brains receptors are quickly saturated by even

low doses of midazolam hydrochloride, meaning that administering a hyper-

dosage is physiologically ineffectual.

39. Even at high doses, there is a substantial likelihood that Mr.

Price will experience the severe pain and suffering associated with the

administration of rocuronium bromide and potassium chloride.

E. In the Past Several Months, Courts Have Recognized the

Constitutional Problems Associated With Lethal Injection

Protocols That Utilize Midazolam Hydrochloride Rather Than a

General Anesthetic

40.

As described above, Ohios lethal injection protocol utilizes a

hyper-dose of midazolam hydrochloride in lieu of a general anesthetic. On

August 8, 2014, in response to Ohios botched execution of Dennis

Maguire, the United States District Court for the Southern District of Ohio



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entered a stay prohibiting Ohio from carrying out any executions until at

least January 15, 2015.

41.

As described above, Oklahomas lethal injection protocol

utilizes a hyper-dose of midazolam hydrochloride in lieu of a general

anesthetic. On September 18, 2014, in response to Oklahomas recent

botched execution of Clayton Lockett, an Oklahoma state court judge

presiding over an inmates constitutional challenge to Oklahomas lethal

injection protocol asked the state to consider postponing all of its scheduled

executions.

42.

As described above, Arizonas lethal injection protocol utilizes

a hyper-dose of midazolam hydrochloride in lieu of a general anesthetic. In

response to Arizonas botched execution of Joseph Wood, the Governor of

Arizona ordered a review of Arizonas execution process after the botched

execution of Mr. Wood, and the state has decided not to schedule any

executions until that review is complete.

43. In recognition of the problems with midazolam hydrochloride,

at least one other state has acted preemptively rather than waiting for another

botched execution to occur. For example, last month a Kentucky circuit

judge ordered an inquiry into Kentuckys newest lethal injection protocol,

which uses midazolam hydrochloride in lieu of a general anesthetic.



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F. The Secrecy With Which the Alabama DOC Adopts and

Implements Its Lethal Injection Protocol Exacerbates the

Constitutional Infirmity of Its New Three-Drug Protocol

44.

Alabama statutory law requires that death sentences be carried

out by lethal injection, but the statutes do not specify the drugs to be used or

any other details regarding the protocol. The details of the execution

procedures are determined by the DOC. The DOCs procedures for carrying

out executions are exempt from the Alabama Administrative Procedure Act.

SeeAlabama Code 15-18-82.1(g). For that reason, the DOC can change

the lethal injection protocol without notice to any person and without

providing interested parties the opportunity to comment on proposed

changes.

45. Alabamas lethal injection protocol does not regulate the source

of the drugs to be used in executions. Because states have experienced

difficulties obtaining drugs for lethal injection from FDA-approved

manufacturers, there is a substantial risk that Alabama will use drugs

obtained from compounding pharmacies to carry out Mr. Prices execution.

46. Compounding pharmacies mix or alter ingredients to produce

individually customized medications. The FDA does not regulate the safety

and efficacy of drugs produced by compounding pharmacies. Because of

the lack of regulation of compounding pharmacies, the use of compounded

drugs in an execution creates a substantial risk that such drugs will lack the



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efficacy, purity, or potency necessary to operate as intended by the lethal

injection protocol.

47.

In Alabama, executions are administered by non-medical

personnel who lack training in administering intravenous drugs and are not

qualified to determine whether an inmate is completely unconscious and

insensate. This creates a substantial risk that officials will depart from the

protocol, fail to administer the drugs correctly, or otherwise fail to carry out

the execution in a manner that complies with constitutional requirements.

FIRST CAUSE OF ACTION

Violation of the Eighth and Fourteenth Amendments

Ban on Cruel and Unusual Punishment

48.

Mr. Price repeats and realleges the allegations in paragraphs 1

through 47 as though fully set forth herein.

49. The State of Alabama has announced the intention to execute

Mr. Price using a new three-drug protocol consisting of (a) 500 milligrams

of midazolam hydrochloride, (b) 600 milligrams of rocuronium bromide,

and (c) 240 milliequivalents of potassium chloride.

50.

Defendants are acting under the color of Alabama law in

undertaking to execute Mr. Price using the DOCs new three-drug protocol.

51. It is substantially likely that midazolam hydrochloride will fail

to render Mr. Price unconscious and insensate during the remainder of the



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execution, and that Mr. Price will therefore experience prolonged,

excruciating, and needless pain while the rocuronium bromide forcibly

suffocates him and the potassium chloride burns his veins and internal

organs and stops his heart.

52. Defendants are acting knowingly and with deliberate

indifference.

53.

The violation of Mr. Prices constitutional rights is exacerbated

by (a) the risk that the State of Alabama will use compounded drugs or other

drugs from non-FDA approved sources, and (b) the secret process through

which the Alabama DOC adopts and implements its lethal injection protocol,

and (c) the inadequacy of whatever consciousness checks the Alabama

DOC intends to perform prior to administering the rocuronium bromide and

potassium chloride.

54.

If Alabamas recently adopted protocol is used to execute Mr.

Price, Mr. Price will be subject to cruel and unusual punishment in violation

of the Eighth Amendment to the United States Constitution.

PRAYER FOR RELIEF

55.

For these reasons, Mr. Price respectfully requests that this

Court:

a. Enjoin defendants from executing Mr. Price using the

protocol that the State asserts that it adopted on September 10, 2014.



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b. Order defendants to disclose to Mr. Price and his counsel

the precise lethal injection protocol, that will be used during Mr. Prices

execution at least 90 days in advance of such execution, including a detailed

description of the consciousness checks that will be utilized and the

qualifications and training of the personnel designated to carry out such

checks.

c.

Enter a declaratory judgment that defendants proposed

execution protocol violates Mr. Prices right to be free of cruel and unusual

punishment pursuant to the Eighth Amendment to the United States

Constitution.

d.

Grant any further relief that the Court deems just and

proper.



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tr

443 Housing;/

Accolmodations

D

445

Amer. w/Disabilities -

Employment

D

446

Amer. dDisabilities -

Other

D

448

Education

Habeas

Corpus:

il

463

Alien

Detainee

D 510

Motions

to

Vacate

Sentenog

tr

530 General

n 535DeathPenalty

Other:

D 540

Mmdamus

& Other

X

sso

civil Rights

D 555 Prison

Condition

O

560

Civil

Dotainee

-

Conditions

of

Coniinement

ll

870

Taxes

(U.S.

Plaintiff

or

Defendant)

il

871

IRS-Third Party

26U$C7609

Lr

4OZ

Nanraluanon

Apptrcanor

O 465

Other

Imigration

AchoN

V.

ORIGIN

(Place

an

"X"

in

One

Rox

Only)

X

I

Original

Proceeding

D

2

Removed

from

State

Court

Remanded

from

Appellate Court

0

4

Reinstated

or

Reopened

[

5

Transfened from

3

District

D

6

Multidistrict

Litigation

CHECK YES

only

if

demanded in complaint:

JURYDEMAND:

I

Yes

flNo

VI.

CAUSE

OF'ACTION

ED

IN

COMPLAINT:

Amendment

CHECK IF

TI{IS

IS A

cLASs

AcTIoN

DEMAI\D

$

UNDER RULE 23. F.R.Cv.P.

Cite

the

U.S.

Civil

Statute under

which

you

afe liling

1Do

not

cita

jurisdictional

statut* unt6s

tliee6i0)'.

42 U.S.C.

A

1983

Brief

descrintion

of

cause:

Violation

bf Plaintiffs

vlII.

RELATED

CAStr(S)

IF AI\TY

(See

in,etructions):

JUDGE

DOCKETNUMBER

DATE

10t08t2014

SIGNATURE OF ATTORNEY

OF

RECORD

/s/Aaron

M. Katz

II-OR

OIIF'ICI: US ) ONLY

Case 1:14-cv-00472-KD-C Document 1-1 Filed 10/08/14 Page 1 of 1

Price v State of Alabama

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Transcript of Price v State of Alabama