Gray v. McAuliffe

RICKY JOVAN GRAY, Plaintiff, v. TERENCE RICHARD McAULIFFE, et al, Defendants.

Civil Action No. 3:16CV982-HEH

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

January 10, 2017

MEMORANDUM OPINION

(Denying Motion for Preliminary Injunction and Temporary Restraining Order)

Plaintiff Ricky Jovan Gray, a Virginia state inmate sentenced to death, brings this civil rights action under 42 U.S.C. § 1983. Gray is currently scheduled to be executed by lethal injection on January 18, 2017, a date that was set on November 21, 2016. On December 14, 2016, Gray filed this Complaint for Declaratory Judgment, and on December 16, 2016, he filed this Emergency Motion for Temporary Restraining Order and Preliminary Injunction.

Gray alleges that "[t]here is a constitutionally intolerable risk that, on January 18, 2017, the Virginia Department of Corrections ("VDOC") will chemically torture [him] to death" and that "[t]he VDOC will do so behind a veil of secrecy that frustrates Mr. Gray's efforts to learn any meaningful details about the chemicals that will be used to cause his death." (Compl. ¶ 1, ECF No. 1.) Gray contends that "[t]he risk of chemical torture is in violation of [his] Eighth Amendment right to be free from cruel punishment" and that "[t]he veil of secrecy that the VDOC has pulled across the details surrounding how Mr. Gray is to be executed is a violation of Mr. Gray's Fifth and Fourteenth Amendment right to Procedural Due Process." (Id.) Specifically, Gray speculates that the compounded midazolam that the VDOC intends to use as the first drug in its three-drug protocol will not sufficiently anesthetize him before the administration of the second- and third-stage drugs. Gray also challenges Virginia's plan to use a second compounded drug in the third stage of the lethal injection protocol.

The Court's central focuses are Gray's Motion for Preliminary Injunction and Defendants' Opposition thereto. On January 3, 2017, the Court heard evidence and oral argument on the Motion for Preliminary Injunction. For the reasons set forth below, Gray's Motion will be denied.

I. Pertinent Procedural and Factual Background

It has been eleven years since Gray brutally murdered Kathryn and Bryan Harvey and their two young daughters, Stella and Ruby, on New Year's Day, 2006. A Virginia jury convicted Gray of five counts of capital murder and sentenced him to death on two of the counts, the murders of Stella and Ruby Harvey. Since then, Gray has unsuccessfully pursued a host of direct and post-conviction challenges and appeals in both state and federal courts. On October 3, 2016, the United States Supreme Court denied Gray's petition for a writ of certiorari challenging his convictions and death sentences. Gray v. Zook, 137 S. Ct. 84 (2016). Faced with his impending execution, Gray filed the instant challenge.

The Supreme Court of Virginia aptly summarized the undisputed evidence of his guilt as follows:

On the morning of January 1, 2006, Kathryn and Bryan Harvey and their two daughters, Stella and Ruby, were killed in the Harveys' home in the City of Richmond. Firefighters, responding to a call that the Harveys' home was burning, discovered the bodies of Kathryn and Ruby in the basement as they attempted to fight the fire. The house was filled with "black smoke" and the basement was burning and had "[z]ero visibility and a lot of heat." Soon after the firefighters removed the bodies of Kathryn and Ruby from the basement, they determined that the bodies showed evidence of "battle signs" and that the victims' legs had been bound. At that point the firefighters stopped their rescue efforts and summoned the police.

Detective Dwyer of the Richmond Police Department then discovered Stella in the basement under a futon "with her hands behind her back, tape around her mouth." Bryan was discovered on the floor of the basement with orange electrical cord wrapped around his wrists and feet, with "melted tape around his face [and a] large wound to his neck area." Detective Dwyer also found two claw hammers, two broken wine bottles, a knife handle and a separate knife blade in the basement. Those items, as well as several photographs of the scene, were admitted into evidence at trial.

An autopsy revealed that Bryan had been cut eight times in his neck and underneath his chin, and those wounds, although "[v]ery painful," were not immediately fatal. His mouth had been gagged and taped. Six lacerations were made to the left side and back of Bryan's skull, each caused by blows from a hammer. He experienced severe third degree burns to his skin. Bryan died from the wounds to his skull.

Kathryn had been cut three times in her neck and chest, once in her back, and those wounds caused bleeding and pain but were not fatal. Multiple lacerations were made to Kathryn's skull as a result of blows from a hammer. The hammer blows caused a fracture to the plate above Kathryn's eyes, resulting in bleeding behind her eyes. Kathryn died from the blunt force injuries to her head.

Ruby's throat had been sliced through to her trachea, a wound that was not fatal but obstructed her breathing. Her head was also fractured and cut, causing brain tissue to exude from her skull. She had also been stabbed in the back with enough force that the knife had passed through her ribs and into her lungs. Ruby died from the blunt force injuries to her head and the stab injury to her lungs.

Stella's neck had been cut six times, with the stab wounds having penetrated her trachea and esophagus. Stella's head was also bludgeoned by a hammer, causing brain tissue to exude from her skull. She died from a combination of smoke inhalation, carbon monoxide poisoning and blunt force injury to her head.

Forensic evidence showed that the knife blade recovered from the Harveys' home had traces of blood from Kathryn, Stella, Ruby and Bryan. Bryan and Stella's DNA was discovered on the shaft of one of the recovered hammers. Kathryn's DNA was identified on the handle of the other hammer.

Evidence at trial established that Gray, Ray Dandridge and Ashley Baskerville were driving the streets of Richmond in Gray's van during the mid-morning of January 1, 2006 "looking for a house to rob." Gray and Dandridge "spotted a door open" at the Harveys' home, entered the house, and forced Kathryn, Bryan and Ruby into the basement. Stella was not home when Gray and Dandridge entered. In the basement, Gray assured the three family members that he and Dandridge would leave after they took what they wanted from the home. Gray then used electrical cords to tie Bryan's wrists behind his back and bind his ankles together.

Before Gray and Dandridge could plunder the house, they heard a noise upstairs on the home's main level. Kiersten Perkinson, a family friend, had arrived at the Harveys' home to deliver the Harveys' daughter, Stella, along with Perkinson's own daughter, Grace Lynn, from a slumber party the previous evening.

Hearing the commotion, Kathryn explained to Gray that her daughter had returned from a slumber party, so Gray permitted Kathryn to go upstairs to bring her daughter downstairs to the basement. Perkinson heard Kathryn "running up the stairs" from the basement, and upon reaching the top of the basement stairs, she appeared "pale and ashen." Stella ran past her mother and down the stairs into the basement, but Kathryn blocked Grace Lynn's path so she could not follow Stella downstairs. Kathryn told Perkinson that she did not feel well, so Perkinson and Grace Lynn left the house.

Downstairs, Gray bound the hands and feet of all the Harveys and placed clear packing tape over their mouths, but he assured them that everything would be okay. Gray and Dandridge then began collecting the items from the home they intended to steal. Kathryn attempted to comfort her distraught daughters, and she told Gray that he should take what he wanted and just leave. Suddenly, Gray took a razor knife and cut Kathryn's throat and then cut the throats of the young girls and Bryan. When Gray saw that his victims were still moving, he took a nearby claw hammer and began repeatedly beating each of the Harveys in the head. When they stopped moving, Gray poured two bottles of wine on an easel in the basement and lit a match, starting the fire. Gray and Dandridge then left the burning home with the items they had stolen.

John Hott, a family friend of the Harveys, arrived at the Harveys' home for a New Year's Day party at about 1:45 p.m. and noticed smokecoming from the house. He immediately ran to a neighbor's home and called "911".

Less than a week later, Richmond police received a tip that Gray was a suspect in the murders, and a member of the Richmond Police Department contacted the Philadelphia, Pennsylvania Police Department requesting they investigate a location where Gray may be staying and to be on the lookout for a particular vehicle believed related to the Harvey murders. In the early morning hours of January 7, 2006, Philadelphia police obtained a search warrant, and a SWAT team entered the location where Gray was suspected to be staying and found him in the basement. Gray was arrested and advised of his Miranda rights. After learning that Dandridge was also being questioned, he asked the Philadelphia police: "Can I tell you my side of the story?"

As part of a signed confession, Gray described in detail how he and Dandridge entered the Harveys' home and attacked the Harveys, in which he stated:

[I]t was a real nasty scene. How am I suppose[d] to explain something like what happened? I started cutting their throats and they kept getting up and they [were] scaring me. I remember seeing the hammer and picking it up, and then . . . I was just hitting them all with the hammer. All I know is nobody was moving when I left out there.

Gray admitted that Dandridge spent most of this time searching the home for items to steal, and that only Gray used the hammers to attack the Harveys.

Gray stipulated at trial that

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