Академический Документы
Профессиональный Документы
Культура Документы
No. 17-1824
______________________________________________________________________________________________________________________
STACEY JOHNSON,
Plaintiff-Appellant,
v.
WENDY KELLEY, et al.,
Defendants-Appellees.
______________________________________________________________________________________________________________________________________________________________________________________________________________________________
LESLIE RUTLEDGE
Attorney General
LEE RUDOFSKY
Solicitor General
NICHOLAS J. BRONNI
Deputy Solicitor General
COLIN JORGENSEN
Senior Assistant Attorney General
JENNIFER L. MERRITT
Assistant Attorney General
OFFICE OF THE ARKANSAS
ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-2007
lee.rudofsky@arkansasag.gov
INTRODUCTION
piecemeal litigation and dilatory tactics displayed by Johnson and other death-row
inmates over the last two years since Arkansas adopted the three-drug lethal-
injection protocol upheld by the United States Supreme Court in Glossip v. Gross,
135 S. Ct. 2726 (2015). Appellant has a long (and all too often successful) history
of filing and dismissing claims to manipulate the judicial process and prevent
Arkansas from carrying out his just and lawful sentence. He has previously
Arkansass midazolam protocol. This case is just the latest execution-eve iteration
of those efforts. Appellant now claims that, due to his purportedly unique and
average healthy inmate and will cause severe pain and serious harm to him. DE1
2 at 1 & 14. Appellant waited until the literal eleventh hour to assert his as-
applied claim and sought a preliminary injunction staying his immediate execution
1
DE refers to the docket entry in the district court.
1
establishing that Mr. Johnson has suffered from his medical conditions for years
and could have brought his as-applied method-of-execution claim much sooner but
intentionally declined to do so. On April 18, 2017, the district court found that
(citing McGehee v. Hutchinson, Eighth Circuit Court of Appeals No. 17-1804, slip
op. at 2). That conclusion is well supported. This Court should likewise conclude
that Appellants latest stay request is nothing more than an attempt to prevent
Arkansas from carrying out Appellants execution decades after Appellant brutally
took the life of young mother Carol Heath. This Court should deny Appellants
BACKGROUND
A. Appellant
In 1993, Stacey Johnson violently raped, beat, strangled, and sliced Carol
Heaths throat so deeply that Johnson cut one-fourth of an inch into her spine.
Heaths two young children, six-year-old Ashley and two-year-old Jonathan, were
at home during the murder and were left alone overnight with their mothers nude,
lifeless body lying in a pool of blood. This is Arkansass fifth attempt to secure
justice for Heath. His guiltand the justice of his sentenceis beyond dispute.
B. Prior Litigation
barbiturate option that has not been used due to Arkansass inability to obtain a
2. Williams v. Kelley
Kelley, a state-court action alleging that Arkansass execution protocol violates the
removed that complaint to federal court, Johnson nonsuited. See No. 4:15-CV-206-
JM (DE 1, 2, 4). Johnson then filed amended complaints in state court raising only
state-law claims. See Kelley v. Johnson, 496 S.W.3d 346, 352 (Ark. 2016).
(DE 28-17.)
3. Johnson v. Kelley
punishment. See Stacey Johnson, et al. v. Wendy Kelley, Circuit Court of Pulaski
without prejudice in order to return [his] causes of action to state court (where they
belong). Compl. in Johnson (June 29, 2015), Pulaski County, Ark., No. 60CV-
Act 1096, including challenges under the state ban on cruel-or-unusual punishment
as well as other state constitutional provisions that mirrored the earlier federal
claims.
date for November 2015, Appellant sought a stay pending resolution of his new
case. The Arkansas Supreme Court stayed the execution pending the resolution
of the litigation. McGehee DE2 28-19. Appellant then filed an amended complaint
cruel or unusual punishment because, inter alia, midazolam would not sufficiently
anesthetize and because other provisions of the protocol gave rise to risks of harm
if not carried out properly. Appellant also alleged that the use of compounded
drugs would impose cruel and unusual punishment and suggested as alternative
execution methods, the firing squad, barbiturates, anesthetic gas, and opioid
crystal clear that he had voluntarily dismissed his federal constitutional claims in
order to return their causes of action to state court, where they belong. McGehee
Arkansas moved to dismiss, and the state trial court denied that motion.
The parties then filed cross-motions for summary judgment on the midazolam
claim, both seeking judgment as a matter of law on both Glossip prongs. But the
trial court denied the motions after finding that a fact issue existed for trial
regarding midazolams ability to anesthetize Appellant (the state trial court did not
consider the second Glossip prong regarding known and available alternatives).
2
McGehee DE refers to docket entries in Appellants facial midazolam
challenge in McGehee v. Hutchinson, U.S. District Court for the Eastern District of
Arkansas, No. 4:17-cv-000179-KGB.
5
claims because under Baze v. Rees, 553 U.S. 35 (2008), and Glossip v. Gross, 135
S. Ct. 2726 (2015), Appellant had failed to meet his burden of both pleading and
providing evidence that his alternative execution methods are available and readily
implementable. Kelley, 496 S.W.3d at 357-60. The United States Supreme Court
Thus, Appellants midazolam claim was dismissed on the merits, the case
ended, and the stay dissolved. Nevertheless, Appellant attempted to file another
The Arkansas Supreme Court responded by making clear that Appellants case had
complaint. The trial court granted that motion and held that the Arkansas Supreme
C. Procedural History
Appellant for April 20, 2017. Governor Hutchinson also set seven other
executions on April 17, April 20, April 24, and April 27, 2017. Knowing that
Arkansass supply of midazolam expires at the end of April, and that the State has
no way to buy more, Appellant (along with his co-plaintiffs) then waited a month
effort, Appellant has filed numerous cases in multiple forums. The Prisoners have
6
successfully halted three executions as a result of those efforts, and the Arkansas
Supreme Court just issued a fourth staythis one for Appellantbased on his
last-minute request for postconviction DNA testing under Arkansas law (a claim
Appellant filed this 1983 case just two days ago, on April 17, 2017, and
asked for a preliminary injunction that would stay his execution on the ground that
there was insufficient time to fully resolve his as-applied midazolam claim. Later
that afternoon, a nearly unanimous en banc panel of this Court vacated the district
courts stay order in McGehee. In so doing, this Court focused on [t]he prisoners
long delay in pursuing their federal claim and explained that as a result, under
Supreme Court precedents, the district court should have applied a strong
equitable presumption against the grant of a stay. Slip Op. at 2. Applying that
federal claim in April 2015 and his decision to pursue only his corresponding
state constitutional claims. Id. at 3-4. The Court then explained that, while
Governor Hutchinson had scheduled Appellants execution just six days after the
Supreme Court denied certiorari in Johnson, Appellant had waited until only three
weeks before the first scheduled execution to bring his facial Eighth Amendment
claim. Id. Consequently, this Court concluded that, regardless of the merits of the
McDonough, 547 U.S. 573, 584 (2004)). The record showed that Appellant could
have brought his 1983 facial method-of-execution claim much earlier and
On April 18, 2017, in light of this Courts decision in McGehee, the district
court issued a show-cause order in this as-applied case. DE 11. The district court
explained that as-applied challenges must overcome the same strong equitable
presumption against the grant of a stay when a claim could have been brought
earlier. DE 11 at 2 (citing Johnson v. Lombardi, 809 F.3d 388, 389 (8th Cir.
2015)). The district court noted that Appellant filed this action just three days
before his scheduled execution, did not allege that his health issues arose recently,
and that it appeared from the face of the complaint that Appellant could have
brought his claims far in advance of April 17, 2017. Id. The court ordered
Appellant to show cause why the court should not find, consistent with this Courts
was not dilatory in bringing his complaint because an as-applied challenge does
not ripen until there is an execution date set; (2) Appellants conditions are fluid
and have gotten worse since he was last examined by prison physicians; and (3)
Supreme Court. DE 15. The district court rejected these arguments and dismissed
the complaint with prejudice. DE 17. In reaching that conclusion, the court noted
that Appellant was examined on March 23, 2017, by the same physician who
testified as a plaintiffs expert in McGehee and who signed the declaration that
Appellant now uses to support his as-applied claim. DE 17 at 2. Yet Appellant did
not file this claim until more than three weeks later. DE 17 at 2. The court
explained that, [e]ven assuming that Mr. Johnson is correct that his claim did not
become ripe until Governor Hutchinson set his execution date on February 27,
2017, and that his physical condition should be evaluated when his execution is
imminent, the Court finds that, consistent with and based upon the Eighth Circuits
decision in McGehee, Mr. Johnson was not diligent in bringing this action. Id. at
3. The court found that Appellant provided no good reason why his as applied
claim could not have been included in McGehee or been filed at the same time as
McGehee on March 27, 2017. Id. The court held that Mr. Johnson has split his
claims and has not been diligent in pursuing his as applied claims. Id. The court
sufficient reason to deny a stay. Id. at 4 (citing McGehee, No. 17-1804, slip op. at
2). The district court thus dismissed the action with prejudice and denied all
LEGAL STANDARDS
390 (8th Cir. 2015). An inmate facing imminent execution is not afforded a stay
as a matter of right, and equity must be sensitive to the States strong interest in
enforcing its criminal judgments without undue interference from the federal
courts. Id. (quoting Hill, 547 U.S. at 584). Inmates seeking time to challenge a
method of execution must satisfy all of the requirements for a stay, including a
execution cases, a court considering a stay must also apply a strong equitable
presumption against the grant of a stay where a claim could have been brought at
stay. Hill, 547 U.S. at 584 (quoting Nelson v. Campbell, 541 U.S. 637, 650
This Court should deny Appellants request for a stay. As the district court
this Court just held earlier this week in McGehee, Appellant has not and cannot
show a significant possibility of success on his claim that the method of execution
10
used by Arkansas presents a risk that is sure or very likely to cause serious illness
and needless suffering or that Arkansas has access to a known and available
alternative method of execution. McGehee slip op. at 4 & 6. For these reasons, the
ARGUMENT
This Court should deny Appellants request for a stay for the same reasons
that it reversed the district courts grant of a stay in McGehee. Even if one
completely ignores the 2015/2016 state-court midazolam case, the record shows
that Appellant could have filed his as-applied challenge, at the very latest, on
March 27, 2017. He had a physical examination by his litigation expert on March
23, 2017, who diagnosed him with sleep apnea and other probable medical
conditions that purportedly will affect how the execution protocol works on him.
And Appellant then filed (along with 8 other prisoners) his facial midazolam claim
As the district court observed, Appellant has provided no reason for why he
around the same time. Instead, Appellant waited until only three days before his
scheduled execution to file this lawsuit. And now he asks this Court to stay his
11
execution with less than 24 hours to go. It is obvious that Appellant has split his
claims and has not been diligent in pursuing his as-applied challenge. For this
reason alone, this Court should hold, as it did in McGehee, that Appellants use of
Appellant cannot prevail on his claim that using midazolam as the first drug
because his claim is bared by res judicata. Federal courts cannot adjudicate
claims that have already been fully adjudicated in state court or that could have
been litigated in state court. Sparkman Learning Center v. Ark. Dept of Human
Servs., 775 F.3d 993, 998 (8th Cir. 2014); Jayel Corp. v. Cochran, 234 S.W.3d
278, 281 (Ark. 2006); see also 28 U.S.C. 1738. State law determines whether a
claim has been adjudicated. Sparkman Learning Ctr., 775 F.3d at 998.
Court issued a final judgment resolving the merits of Appellants facial midazolam
claim almost a year ago in Johnson. In that case, the Arkansas Supreme Court did
not simply dismiss Appellants complaint. Rather, the court reversed the lower
midazolam claim on the ground that Appellant had failed to establish an available
evidence); id. at 359 (no evidence that the proposed alternative drugs are available
to ADC for use in an execution). And that conclusion, as the state trial court later
filed after the Arkansas Supreme Courts decision, fully resolved the case on the
Appellant could have brought his as-applied claim in Johnson but intentionally
Additionally, to the extent that there might be any doubt that Appellants
claims have been (or could have been) fully resolved on the merits, under Arkansas
on the merits because that dismissal was actually the third dismissal of Appellants
adjudication on the merits where action has been previously dismissed, whether
complaint under that same case heading in state court. McGehee DE 28-17. And,
as discussed in more detail in the States motion to vacate the stay in McGehee, all
13
of the other elements of res judicata are satisfied, as well. As a result, the Court
should conclude that Appellant is not likely to succeed on the merits of his as-
In re Scarborough, 171 F.3d 638 (8th Cir. 1999). State law determines whether
that doctrine applies, and in Arkansas, it applies to previously litigated issues that
were essential toand resolved bythe previous courts final judgment. State
Office of Child Support Enforcement v. Willis, 59 S.W.3d 438, 444 (Ark. 2001);
see Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1475 (8th Cir. 1994). That
needless suffering and that there are alternative execution methods that are
severe pain. Glossip, 135 S. Ct. at 2737. Indeed, those claims were addressed in
discussed above, they were resolved by the Arkansas Supreme Courts conclusion
that Appellant had not adduced evidence on summary judgment demonstrating that
i.e., whether the use of midazolam in lethal injection is cruel and unusualwhen
Lundquist v. Rice Memorial Hospital, 121 Fed. Appx. 664, 668-69 (8th Cir. 2005).
claim.
This Court already ruled in McGehee that Appellant did not show, after
success on the first Glossip prong. The record in this case adds nothing of
substance that would change the Courts conclusion. Appellant has not alleged
midazolam will surely or very likely fail to anesthetize him because he suffers
allegations are speculative and cannot support a valid Eighth Amendment claim.
See McGehee, slip op. at 5-6 (explaining that the mere possibility of harm does not
justify a stay). For example, Appellant makes the conclusory allegation that his
large size makes it more likely that the execution will fail[.] DE 2 24. He
15
similarly alleges that his pre-existing health conditions make it more likely that he
24. These allegations plead alleged increased risks of harm to Appellant; they do
not show that the protocol is sure or very likely to cause serious illness and
Regardless, and in any event, this Court has repeatedly explained that the
Eighth Amendment does not warrant a general supervisory role for the courts to
requirement, and the Eighth Amendment does not recognize a claim arising out of
occur. See Zink v. Lombardi, 783 F.3d 1089, 1100-03 (8th Cir. 2015); Clemons v.
Crawford, 585 F.3d 1119, 1125-27 (8th Cir. 2009); Taylor v. Crawford, 487 F.3d
package insert for midazolam explaining that lower doses are needed to anesthetize
older or sick patients as well as those taking narcotics or other central nervous
16
that 32 subjects reached a state of general anesthesia under normal clinical doses of
midazolam).
warranted.
success on his claim that an alternative execution method is feasible and readily
implemented that would significantly reduce a substantial risk of severe pain. See
McGehee, slip op. at 6-7. Johnson alleges in his complaint that he is not required
This Court clearly holds that every method-of-execution plaintiff must plead an
substantial risk of severe pain. See Bucklew v. Lombardi, 783 F.3d 1120, 1128
(8th Cir. 2015) (en banc) (noting in an as-applied challenge that, at the earliest
procedure that will significantly reduce a substantial risk of severe pain and that the
State refuses to adopt); Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir. 2015)
17
Appellant goes on to allege that pentobarbital and the firing squad are available
alternatives. But this Court has already rejected those alternatives as too
uncertain to satisfy the rigorous standard under the Eighth Amendment. Id. at 7.
CONCLUSION
because he has not and cannot show a significant possibility of success on the
merits of his midazolam claim. A stay in this case will make it impossible for
execution to bring this action and seek a stay. Indeed, as Appellants repeated
Appellant did not suddenly discover his midazolam claim. And equity should not
permit him to deliberately manipulate the judicial process to again evade justice.
For each and all of these reasons, the Court should deny Appellants motion for a
18
Respectfully submitted,
LESLIE RUTLEDGE
Attorney General
LEE RUDOFSKY
Solicitor General
NICHOLAS J. BRONNI
Deputy Solicitor General
JENNIFER MERRITT
Assistant Attorney General
/s/ Jennifer L. Merritt
OFFICE OF THE ARKANSAS
ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-6302
Lee.Rudofsky@ArkansasAG.gov
Nicholas.Bronni@ArkansasAG.gov
Jennifer.Merritt@ArkansasAG.gov
19
CERTIFICATE OF SERVICE
I, Jennifer L. Merritt, hereby certify that on April 19, 2017, I filed the
foregoing with the Clerk of the Court via CM/ECF, which shall send notification
of the filing to any participants. I also certify that I provided a copy of the
Jeff Rosenzweig
jrosenzweig@att.net
CERTIFICATE OF COMPLIANCE
Procedure, the undersigned hereby states that the applicable portions of this
response contain 4,067 words in proportionally sized 14-point Times New Roman
font. The brief was prepared in Microsoft Office Word 2010. The electronic
version of the brief has been scanned for viruses and is virus-free.
20