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Thomas E. Creech, James H. v. Brent Reinke

June 4, 2012


The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge



On April 4, 2012, four Idaho prisoners under death sentences filed a Complaint challenging the Idaho Department of Correction's execution protocol and procedures. (Dkt. 1.) On May 15, Defendants responded with a Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 9.)

In Plaintiff Richard Leavitt's state court criminal case, the State of Idaho sought and received a death warrant from the state court for Leavitt, and an execution date of June 12, 2012, has been set. As a result of the execution date, the Court accelerated briefing on Leavitt's claims only.

No execution dates have yet been scheduled for the other three Plaintiffs. Their briefing schedule has been un-altered to allow them additional time to address the pending Motion to Dismiss.

With his execution date set, Leavitt has now filed an Emergency Motion for Preliminary Injunction or Stay of Execution, seeking an order from this Court staying the execution so that he may proceed in the current federal lawsuit to alter the manner in which his execution will occur, before his claims become moot as a result of his execution. (Dkt. 16.) The Court has considered the parties' arguments, and for the reasons set forth herein, it issues the following Order.


Richard Leavitt was convicted of first degree murder, for the stabbing death of Danette Elg in Blackfoot, Idaho. He was first sentenced to death in 1985 and, following a remand from the Idaho Supreme Court, he was resentenced to death in 1990. State v. Leavitt, 822 P.2d 523 (Idaho 1991). For the next twenty-two years, Leavitt sought relief from his convictions and death sentence in state court and federal court, and although he has been granted federal habeas relief twice, those rulings have been reversed by the Ninth Circuit Court of Appeals. Leavitt v. Arave, 383 F.3d 809, 840 (9th Cir. 2004); Leavitt v. Arave, 646 F.3d 605, 616 (9th Cir. 2011). The United States Supreme Court recently denied Leavitt's petition for writ of certiorari, effectively ending his collateral appeals, and an execution date is now set for June 12, 2012.

Leavitt's scheduled execution would be the second to occur in Idaho within a year. In October of 2011, the Idaho Department of Correction (IDOC) adopted a revised three-drug lethal injection protocol in preparation for the execution of Paul Rhoades (the "2011 Protocol"). Rhoades challenged the 2011 Protocol in a civil action in this Court on Eighth Amendment and other grounds, and the litigation was expedited once a death warrant was issued by the state court. Rhoades v. Reinke, 2011 WL 5520446 (D. Idaho 2011) ("Rhoades I"). After holding an evidentiary hearing, Magistrate Judge Ronald E. Bush denied Rhoades's motion for a stay of execution pending the completion of the litigation. Id. at *22. Judge Bush concluded, in relevant part, that Rhoades had failed to show a substantial likelihood of success on the merits of his Eighth Amendment claim; that is, he had not established that he faced a substantial risk of serious pain from the implementation of the 2011 Protocol. Id.

The Ninth Circuit affirmed that decision on appeal, see Rhoades v. Reinke, 671 F.3d 856, 863 (9th Cir. 2011) (Rhoades II), and Rhoades was executed on November 18, 2011. The case in the District Court was then dismissed as moot. (Dkt. 86 in Case No. 1:11-cv-00445-REB.)

The IDOC amended the execution protocol in January of 2012 (the "2012 Protocol"). Leavitt has now joined death-row prisoners Thomas Creech, James Hairston, and Gene Stuart in challenging the 2012 Protocol. In their Complaint, brought primarily under 42 U.S.C. § 1983, the Plaintiffs raise the following seven claims:

1. The 2012 Protocol contains discretionary elements and uncertainties, which deprives the Plaintiffs of reasonable notice and an opportunity to object to the lethal injection procedures that will apply to them, in violation of their rights to due process of law under the Fourteenth Amendment;

2. The 2012 Protocol exposes Plaintiffs to a substantial risk of serious pain, violating their rights against cruel and unusual punishment under the Eighth Amendment;

3. The use of adulterated or illegally obtained drugs creates a substantial risk of harm under the Eighth Amendment;

4. The use of pentobarbital in the three-drug protocol exposes Plaintiffs to a substantial risk of harm under the Eighth Amendment, though the use of a single-drug would not;

5. Idaho is required to adopted a one-drug execution protocol under the Eighth Amendment;

6. Executing any Plaintiff under a protocol that is more likely, compared to alternatives, to result in severe pain infringes his rights under the Eighth and Fourteenth Amendments; and

7. State officials have or will violate the Controlled Substances Act, 21 U.S.C. § 801, et seq., and the Food Drug and Cosmetics Act, 21 U.S.C. § 301 et seq., because no appropriately licensed medical practitioner will obtain or administer the controlled substances used to execute Plaintiffs.

(Dkt. 1, pp. 11-37.)

Events that have unfolded rapidly since the filing of Plaintiffs' Complaint in April have narrowed the claims and issues before the Court, at least as they pertain to Plaintiff Leavitt.

On May 15, Defendants filed a Motion to Dismiss, arguing, in part, that all of Leavitt's claims are subject to dismissal without prejudice for failure to exhaust his administrative remedies, and that Claims 3, 4, 5, 6, and 7 for all Plaintiffs should be dismissed with prejudice for failure to state a claim upon which relief can be granted. (Dkt. 10.) Two days later, an Idaho state judge signed a death warrant for Leavitt, setting the June 12 execution date. In response, this Court issued an expediting briefing schedule for Leavitt to file a motion to stay the execution, if he intended to do so, and for briefing on Defendants' Motion to Dismiss his claims. (Dkt. 11.)

On May 23, Leavitt filed his Emergency Motion for Preliminary Injunction or Stay of Execution. (Dkt. 16.) Many of the arguments in his Motion challenge the "unfettered discretion" of the Idaho Department of Correction ("IDOC") to change the protocol at any time, which he contends violates his constitutional right to due process of law, and challenge the use of a three-drug execution protocol as exposing him to a serious risk of pain. (Dkt. 16-1, pp. 4-27.)

However, on May 25, the IDOC notified Leavitt and this Court that it would elect to use one drug -- an injection of pentobarbital -- for Leavitt's execution. (Dkt. 18.) In that same Notice, IDOC indicated that it would not invoke its authority "to deviate from the one-drug pentobarbital protocol outlined in [the 2012 Protocol] for the execution of Richard Leavitt on June 12, 2012." (Id. at 2.)

This Notice has significantly changed the posture of the case in short order. In their Complaint, Plaintiffs had alleged that the Eighth Amendment required the IDOC to use pentobarbital as part of a one-drug method of execution procedure. (Dkt. 1, pp. 29-31; claims 4, 5, 6.) Now, because IDOC will use that drug in Leavitt's execution, he will receive much of the relief that he previously sought in the Complaint. Leavitt seems to acknowledge this, conceding in his Opposition to Defendants' Motion to Dismiss that IDOC's Notice renders Claims 1, 4, 5, and 6 moot, as long as IDOC adheres to its representation that it will not invoke its authority to deviate from the 2012 Protocol. (Dkt. 19, pp. 2-3.)

The Court agrees with Leavitt's assessment that IDOC's Notice that it will use pentobarbital as part of the one-drug method of execution, complying in all material respects with the 2012 Protocol, and that it will not exercise its discretion to deviate materially from that protocol during Leavitt's execution, is binding on the Defendants. See Towrey v. Brewer, 672 F.3d 650 (9th Cir. 2012) (accepting "representations and undertakings as binding on the State"). IDOC's Notice has therefore mooted Leavitt's due process arguments in support of Claim 1, and his allegations that the Eighth Amendment requires the use of a one-drug pentobarbital execution, as set out in Claims 4, 5, and 6, leaving only Claim 2, 3, and 7 still at issue as to Leavitt.

With the issues narrowed, the Court will first address Defendants' argument that Leavitt failed to exhaust his prison administrative remedies as to all of his claims in this lawsuit.


1. Standard of Law

The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007). This requirement is intended to give "prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Id. at 204.

Proper exhaustion is required, meaning that "a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Woodford v. Ngo, 548 U.S. 81, 88 (2006). "[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones, 549 U.S. at 218.

By its plain terms, however, the PLRA requires prisoners to exhaust only those avenues of relief that are "available" to them. 42 U.S.C. § 1997e(a). When prison officials prevent a prisoner from using the correct channels to route a complaint, an administrative remedy that may be theoretically in place will not be available to the prisoner as a practical matter, and the failure to adhere to technical requirements will be excused. Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010); see also Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Confusing or contradictory information given to a prisoner is also pertinent "because it informs [the] determination of whether relief was, as a practical matter, 'available.'" Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005).

A claim that a prisoner failed to exhaust administrative remedies is an affirmative defense that should be brought as an unenumerated motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2002). The district court may consider matters outside of the pleadings and can resolve disputed issues of fact, if necessary. Id. Defendants bear the burden of raising and proving the absence of exhaustion. Brown, 422 F.3d at 936-37.

2. Prison Administrative Grievance Procedures

A prisoner held in custody of the Idaho Department of Correction (IDOC) must attempt to resolve any "problem or action" related to his incarceration using the prison's internal grievance system. (Byrne Aff., Exhibit C, Standard Operating Procedure 316.02.01.001 (Version 2.1), Dk. 10-5.) IDOC has a relatively straightforward three-step system, which requires the prisoner to submit an informal concern form describing the problem, file a formal grievance, and submit an appeal of any adverse decision. (Byrne Aff.,¶¶ 5-11.)

The prisoner begins this process by routing the concern form to the staff member most capable of addressing the problem. (Id. at ¶ 6.) If the issue is not resolved, the prisoner must complete a grievance form, attach a copy of the concern form, and file the grievance within 30 days of the incident. (Id. at ¶ 7) The "grievance coordinator" at the prison will route a properly-completed grievance to the appropriate staff member, who must respond within 14 days. (Id. at ¶ 8.)

After the staff member responds, the coordinator forwards the grievance to the "reviewing authority," who, after reviewing the prisoner's complaint and the staff member's response, issues a decision. (Id.) If the prisoner is dissatisfied with the reviewing authority's decision, he may then appeal within 5 days to the "appellate authority." (Id. at ¶ 9.) When the appellate authority issues a final decision, the grievance is routed back to the inmate, thus concluding the administrative review process. (Id. at ¶¶10-11.)

3. Discussion of Whether the Statute Requires Exhaustion for Lethal Injection Claims Leavitt does not dispute Defendants' assertion that he did not exhaust the administrative remedies for his method-of-execution claim through the prison grievance procedure. There is no evidence in the record that Leavitt made any effort to do so. Defendants have submitted evidence showing that Leavitt was aware of the prison grievance system, knew how to use it, and, in fact, used it for conditions-of-confinement issues such as not being able to live in the general population, not having access to hobby craft supplies, and disagreements with the handling of his mail. (Byrne Aff., ¶ 17, Exhibit H.)

Rather than contest the fact of nonexhaustion, Leavitt argues that, as a matter of law, Defendants are not entitled to summary dismissal on the issue of exhaustion.

Defendants argue that the Supreme Court of the United States has determined that a § 1983 action challenging an execution procedure fits within the category of cases to which exhaustion applies; in other words, under the statute, it is an action "with respect to prison conditions." Nelson v. Campbell, 541 U.S. 637, 650 (2004); 42 U.S.C. § 1997e(a). Leavitt counters that the language in Nelson addressing exhaustion as to challenges to the method of execution is dicta, and that, under the statute, a challenge to the method of execution is not a challenge to the conditions of prison life.

The district courts that have addressed this issue in the death penalty context have determined that the statute requiring exhaustion of administrative remedies does apply to method-of-execution challenges. In Reid v. Johnson, 333 F.Supp. 2d 543 (E.D. Va. 2004), the court determined that the plaintiff's action was subject to dismissal for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a), based on Nelson v. Campbell, but it did not engage in an analysis of the issue. Id. at 552.

In Walton v. Johnson, 2006 WL 2076717 (E.D. Va. 2006), the court dismissed the plaintiff's § 1983 case based on failure to exhaust administrative remedies. There, the district court cited Nelson v. Campbell, concluding as follows:

Walton cannot avoid the PLRA exhaustion requirement, and the court is without discretion to dispense with it; therefore, the entire action must be dismissed without prejudice pursuant to § 1997e(a) of the PLRA. Id. at *6.

In Blankenship v. Owens, 2011 WL 610967 (N.D. Ga. 2011), the district court relied on Nelson and Hill to determine that exhaustion was required and the plaintiff's claims subject to dismissal for failure to exhaust. In Bowling v. Hass, 2007 WL 403875 (E.D. Ky. 2007), the district court relied on Porter v. Nussle, 534 U.S. 516 (2002), to determine that lethal injection challenges must be submitted to the prison through the administrative grievance procedure in the first instance, notwithstanding the possibility that, upon receipt of the grievance, the prison could determine, based upon its particular grievance policy, that the particular claim was not grievable.

This Court agrees with Leavitt that the Nelson language is dicta; thus, a statutory analysis is in order to answer the question at hand. In Porter v. Nussle, the United States Supreme Court engaged in a detailed analysis of § 1997e(a) to determine whether that statute required an inmate to exhaust excessive force claims against individual prison officials. The Supreme Court reviewed (1) the statute's text, (2) the statute's context, and

(3) prior United States Supreme Court decisions relating to "[s]uits by prisoners," as § 1997e(a) is titled. 534 U.S. at 525. This Court follows that model of analysis.

A. The Statute's Text

The United States Supreme Court has instructed that, "[i]n ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue. . . ." McCarthy v. Bronson, 500 U.S. 135, 139 (1991) (citing K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)).

The text of subsection (a) is unequivocal in scope as to prisoners bringing conditions-of-confinement suits: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). However, Congress did not define the term "prison conditions" in the statute.

B. The Statute's Context

The statutory context of § 1997e is also important. The Supreme Court has observed: "'In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.'" McCarthy, 500 U.S. at 139 (quoting Crandon v. United States, 494 U.S. 152, 158).

In Nussle, the Supreme Court noted that the term "prison conditions" should not be read "in isolation," but "in its proper context," which includes the unqualified title "Suits by prisoners." 534 U.S. at 527. In response to an argument that Congress intended to exempt a certain category of prisoner suits from reach of the exhaustion requirement, the Supreme Court aptly observed: "[T]his unqualified heading scarcely aids the argument that Congress meant to bi-sect the universe of prisoner suits." Nussle, 534 U.S. at 527 (internal citations omitted); id. at 526-27 (finding support in McCarthy, 500 U.S. at 139 ("We found no suggestion in § 636(b)(1)(B) [including the phrase 'challenging conditions of confinement'] that Congress meant to divide prisoner petitions 'into subcategories.'")).

Here, the statutory history shows that exhaustion of administrative remedies in prisoner civil suits has developed from no requirement, to a discretionary rule, and, finally, to a mandatory rule. Before 1980, prisoners could file a civil rights action in federal court without first pursuing administrative remedies. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (per curiam). In 1980, Congress introduced a discretionary exhaustion provision for civil rights suit brought by state prisoners. See Civil Rights of Institutionalized Persons Act, 94 Stat. 352, as amended, 42 U.S.C. § 1997e (1994 ed.) In 1996, Congress "invigorated the exhaustion prescription," Nussle, 534 U.S. at 424, by enacting a mandatory exhaustion provision, as part of the Prison Litigation Reform Act (PLRA). See 42 U.S.C. § 1997e(a) (1994 ed., Supp. V); Booth v. Churner, 532 U.S. 731, 739 (2001). "And unlike the previous provision, which encompassed only § 1983 suits, exhaustion is now required for all "action [s] . . . brought with respect to prison conditions," whether under § 1983 or "any other Federal law." Nussle, 534 U.S. at 524.

The purpose of the PLRA was to curtail "a sharp rise in prisoner litigation in the federal courts." Woodford v. Ngo, 548 U.S. at 84. The United States Supreme Court called the "strengthened" exhaustion provision of the PLRA a "centerpiece of the PLRA's effort 'to reduce the quantity . . . of prisoner suits." Id. at 84-85 (citing Nussle, 534 at 524). Exhaustion serves a two-fold purpose: (1) to give an agency "an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court"; and (2) to resolve ...

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