Floyd v. Daniels

ZANE M. FLOYD, Plaintiff, v. CHARLES DANIELS, et al., Defendants.

Case No. 3:21-cv-00176-RFB-CLB

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

July 6, 2021

ORDER

Before the Court are Plaintiff's Motion for Temporary Restraining Order, Motions for Preliminary Injunction, and Motion to Stay Execution. ECF Nos. 5, 6, 10. The Court grants the motions for the reasons below. The Court denies the Motion for Disclosure of Execution Method without prejudice as moot. ECF No. 7.¹

I. PROCEDURAL BACKGROUND

Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 on April 16, 2021. ECF No. 1. Plaintiff also filed a motion for preliminary injunction/temporary restraining order and a motion for disclosure of method of execution. ECF Nos. 5-7. On April 21, 2021, Plaintiff filed a motion to stay execution. ECF No. 10. On April 30, 2021, Defendants filed responses to these motions. ECF Nos. 22-29. On May 2, 2021, Plaintiff filed replies. ECF Nos. 30, 32. On May 6, 2021, Nevada Department of Corrections ("NDOC") Director Charles Daniels presented testimony to this Court regarding the Nevada Department of Corrections Execution Manual. ECF No. 48. On June 18, 2021, Plaintiff filed a supplement to its motion for preliminary injunction. ECF No. 98.Defendants responded on June 24, 2021 and Plaintiff replied on June 25, 2021. ECF Nos. 105, 107, 110. On June 28, 2021, the Court held an evidentiary hearing, where Director Charles Daniels testified. ECF No. 114.

II. EXECUTION PROCESS UNDER NEVADA LAW

Nevada law outlines a multi-step process which must be followed for an execution to occur. First, after the death penalty has been imposed as a punishment, the prosecuting entity, in this case, the Clark County District Attorney's Office must file a motion in the original criminal matter seeking an Order of Execution and a Warrant of Execution. Nevada Revised Statutes ("NRS") §§176.495, 176.505. Pursuant to Section 176.505, the State can seek an Order of Execution when there are no longer any legal impediments—such as unresolved appellate or habeas disputes—to the execution being carried out. The Order of Execution indicates that the execution will proceed and identifies the timeframe within which the execution must take place. Once the state court issues the Order of Execution, the State can seek a Warrant of Execution pursuant to NRS § 176.495 in order to be able carry out the execution. The Warrant of Execution must state the conviction and judgment and confirm the week within which the execution is to take place. Id. Without the entry of these legally required court orders, no execution can take place under Nevada law. See NRS §§176.495, 176.505.

Nevada law provides for only one method of execution—lethal injection. NRS §176.355. Nevada law assigns the NDOC's director the responsibility of selecting the drug or combination of drugs to be used for the execution after consulting with the Chief Medical Officer of Nevada. Id. (emphasis added). The NDOC Director may also consult with any other qualified medical and pharmaceutical professionals to ensure the selected lethal drug or combination of drugs and dosages are sufficient to cause death. NDOC Execution Manual 103.01. Upon determination of the method of lethal injection, the NDOC Director and Deputy Director publish an execution protocol detailing the method of execution, dosages, concentrations, and preparation instructions, among other subjects. Absent a stay of execution, the Director shall execute a sentence of death within the week the judgment is to be executed. NRS § 176.495.

III. FACTUAL BACKGROUND

The Court makes the following factual findings.

Plaintiff Zane Floyd is a death row inmate in the custody of the NDOC. On April 14, 2021, the Clark County District Attorney's Office ("DA") filed an application in state court for an "Order of Execution" and a "Warrant of Execution" seeking to execute Plaintiff Floyd the week of June 7, 2021. At the time this application was filed, the State of Nevada had a three-drug execution protocol (the "2018 protocol"). This protocol had been promulgated, under a different director, by the NDOC in 2018. This execution protocol specifically outlined a process of using in sequence the drugs midazolam, fentanyl and cis-atracurium. At the time of the April 14 filing by the DA, the current Director of the NDOC, Director Daniels, and the head pharmacist for the NDOC, Linda Fox, knew that the 2018 protocol could not be used for an execution in June 2021, since the NDOC no longer had midazolam in its possession and could not purchase any. The 2018 protocol was also the subject of litigation in the Dozier capital case.² During this litigation, at least one state court judge had declared the 2018 protocol to be unlawful.³ This ruling was appealed, but the appeal was ultimately dismissed as moot without a ruling on the merits when Dozier committed suicide in prison.⁴ At the time this case was commenced on April 16, 2021, the NDOC had already begun developing a new execution protocol. This was communicated to Floyd's attorneys by state officials prior to the filing of this action. In fact, Director Daniels and the NDOC had been informed by the DA's office in the last week of March 2021, that the DA would be filing an application for an execution date in June 2021. Daniels and Fox and other members of the NDOC thus began to develop, in the last week of March 2021, a new execution protocol.

Director Daniels knew as early as the first week in April if not sooner the drugs that would likely be included in the protocol, but the NDOC Defendants chose not to share this information with Floyd.

At the May 6, 2021 hearing, Director Daniels testified credibly that there are many factorsfor the NDOC to consider in determining the final execution protocol. He noted that consideration of the drugs to be used, their dosages and sequence was one of several categories of factors that had to be considered to finalize the protocol. He also had to consider the need for appropriately experienced and trained personnel and experts needed for the execution. He credibly testified that it would take him and his staff and experts approximately 90 to 120 days to finalize the protocol based upon the factors and information that would have to be considered. Director Daniels also emphasized that he approaches this process in a deliberate, thorough, and methodical manner; therefore, he would prefer having additional time to finalize the execution protocol.

On June 7, 2021, Nevada Eighth Judicial District Court Judge Michael Villani at the request of the Clark County District Attorney issued a second Order of Execution for Plaintiff Floyd for the week of July 26, 2021. On June 10, 2021, Defendants filed a redacted version of the NDOC finalized execution protocol. According to the protocol, there are two drug combination options. The first is a four-drug combination in the following sequence: Fentanyl or Alfentanil, Ketamine, Cisatracurium, and Potassium Chloride or Potassium Acetate. The second is a three-drug combination in the following sequence: Fentanyl or Alfentanil, Ketamine, and Potassium Chloride or Potassium Acetate. There are actually eight different versions of the drug protocol that can be administered pursuant to the execution protocol.⁵ The protocol also specifies dosages, concentrations, and preparation instructions, among other subjects.

On June 24, 2021, Defendants filed declarations of the experts who offered their opinions as to the effect of the different versions of the drug protocol. The experts' declarations not only discussed the properties of each drug in the execution protocol, but also emphasized the fundamental importance of drug dosages and sequences. On June 28, 2021, Defendant Charles Daniels testified again about the NDOC execution protocol. He explained that he decided to have so many different variations of the drug protocol because he was concerned about possible expiration of various drugs identified in the protocol. Due to this possibility as well other possible unforeseen events, Director Daniels believes that it is appropriate to inform Plaintiff a week prior to his execution of what drug protocol will be administered.

IV. LEGAL STANDARD

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must establish four elements: "(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that the public interest favors an injunction." Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014) (citing Winter, 555 U.S. 7, 20 (2008)). A preliminary injunction may also issue under the "serious questions" test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (affirming the continued viability of this doctrine post-Winter). According to this test, a plaintiff can obtain a preliminary injunction by demonstrating "that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor," in addition to the other Winter elements. Id. at 1134-35 (citation omitted).

V. DISCUSSION

As an initial matter, the Court finds that the Plaintiff has based his argument for an injunction on two different substantive claims—a Due Process claim and an Eighth Amendment claim. The Plaintiff has also argued for an injunction on an entirely equitable basis under the doctrine of judicial estoppel and under the All Writs Act. The Court will consider the due process claim and then the equitable claims and then the Eighth Amendment claim. The Court does note, as will be evident, that the equitable considerations pervade all of the analysis here.

A....