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Only the Westlaw citation is currently available.
United States District Court,
E.D. Kentucky.
Central Division,
at Frankfort.
Gregory WILSON, Plaintiff
v.
John D. REES, et al., Defendants.
Civil Action No. 3:07-CV-78-KKC.
Sept. 30, 2009.
Daniel T. Goyette, Louisville & Jefferson Public
Defender, Corporation, Louisville, KY, David A.
Friedman, William Ellis Sharp, ACLU of Kentucky,
Louisville, KY, Michael J. O'Hara, O'Hara, Ruberg,
Taylor, Sloan & Sergent, Covington, KY, for
Plaintiff.
John C. Cummings, Justice & Public Safety Cabinet,
Frankfort, KY, for Defendants.
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, District Judge.
*1 Plaintiff Gregory Wilson is a Kentucky inmate
sentenced to death for a kidnapping, robbery, rape
and murder he committed in 1987. Wilson filed this
civil rights action pursuant to 42 U.S.C. § 1983 to
challenge the lethal injection protocol Kentucky
intends to utilize in carrying out his death sentence as
a violation of the Eighth Amendment's prohibition
against “Cruel and Unusual Punishments.” [Record
No. 1] The Defendants have moved for dismissal or
judgment on the pleadings on the grounds that
Wilson's claim is time-barred, was not properly
exhausted, and fails as a matter of law under the
standard announced by the Supreme Court in Baze v.
Rees,
128 S.Ct. 1520 (2008)
. [Record No. 25 ]
Wilson has filed his response in opposition [Record
No. 28] to which the Defendants have replied.
[Record No. 29] The Court will grant the motion on
the ground that Wilson's claims are time-barred under
controlling Sixth Circuit precedent.
I. Factual Background.
In May 1987, Wilson and Humphrey kidnapped
Deborah Pooley at knife point on her way home from
work in Newport, Kentucky. The testimony at trial
indicated that Wilson robbed and raped the victim in
the back seat of her car and then strangled her until
she was dead. A jury found the defendants guilty, and
Wilson was sentenced to death on the kidnapping and
murder counts and consecutive prison terms of 20, 20
and 10 years on the rape, robbery, and conspiracy
counts. The Kentucky Supreme Court vacated the
death sentence on the kidnapping conviction, but
affirmed the death sentence on the murder charge.
Wilson v. Commonwealth,
836 S.W.2d 872, 876-77
(Ky.1992). The Supreme Court denied certiorari on
April 19, 1993.
Effective March 31, 1998, Kentucky revised its
criminal statutes to provide that lethal injection was
the presumptive method to carry out a sentence of
death:
(1) (a) Except as provided in paragraph (b) of this
subsection, every death sentence shall be executed
by continuous intravenous injection of a substance
or combination of substances sufficient to cause
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death. The lethal injection shall continue until the
prisoner is dead.
(b) Prisoners who receive a death sentence prior to
March 31, 1998, shall choose the method of
execution described in paragraph (a) of this
subsection or the method of execution known as
electrocution, which shall consist of passing
through the prisoner's body a current of electricity
of sufficient intensity to cause death as quickly as
possible. The application of the current shall
continue until the prisoner is dead. If the prisoner
refuses to make a choice at least twenty (20) days
before the scheduled execution, the method shall
be by lethal injection.
KRS 431.220. The statute establishes lethal injection
as the presumptive method of execution, although
prisoners like Wilson who were convicted before
March 31, 1998, may choose electrocution if they do
so at least 20 days before their scheduled execution.
On July 28, 2004, Wilson signed his name to a
“group grievance” filed by himself and other death
row inmates, which asserted that “the drugs, the
amounts of drug and the timing of the drugs” under
the Kentucky Department of Corrections' “Policies,
Procedures, and Protocols” are “wrong thus making
the way lethal injection is performed is criminal and
violates the Inmates Civil Rights.” The grievance also
expresses concern regarding the use of nonmedical
staff and problems presented by inmates with
compromised veins. The grievance was rejected as
presenting a non-grievable issue on July 26, 2004.
*2 Wilson filed his Complaint in this case on
November 21, 2007. In it, he asserts that the protocol
which Kentucky will use to carry out his death
sentence by lethal injection presents an unacceptable
risk of unnecessary harm in violation of his right to
be free from “Cruel and Unusual Punishments” under
the Eighth Amendment to the Constitution of the
United States. More specifically, he challenges each
of the three drugs to be injected, the amount to be
injected, and the timing of doing so; the sufficiency
of the training and education of the persons who will
be involved in the execution; and the refusal of state
officials to provide him with more detailed
information regarding the protocol.
II. Discussion.
The Defendants contend that Wilson's Complaint
should be dismissed because his claims are barred by
the applicable statute of limitations, because Wilson
did not timely and properly administratively exhaust
some or all of his claims, and because his contentions
are contrary to the Supreme Court's holding in Baze
v. Rees,
128 S.Ct. 1520 (2008)
. Because the Court's
resolution of the statute of limitations issue is
dispositive of the claims in this case, it need not and
does not reach the Defendants' second and third
arguments.
In Hill v. McDonough,
126 S.Ct. 2096 (2006)
, the
Supreme Court held that a death-sentenced inmate
can challenge a state's intended method of carrying
out his or her execution in a civil rights action
pursuant to 42 U.S.C. § 1983 rather than through a
habeas corpus petition under 28 U.S.C. § 2254. In
doing so, the Supreme Court did not address related
matters such as claim accrual, ripeness, or the
applicable statute of limitations. Because, by their
nature, challenges to a lethal injection protocol
invariably challenge conduct which will occur in the
future-rather than in the past-such matters have
proved problematic.
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Nonetheless, several circuit courts of appeal,
including the Sixth Circuit, adhere to the view that
such lethal injection challenges are subject to the
same statute of limitations considerations as other
civil rights actions. Cooey v. Strickland,
479 F.3d
412 (6th Cir.2007); McNair v. Allen,
515 F.3d 1168
(11th Cir.2008). Civil rights claims arising out of
conduct occurring in Kentucky are subject to the one-
year statute of limitations for residual tort claims
found in KRS 413.140(1)(a). Collard v. Kentucky
Board of Nursing,
896 F.2d 179, 182 (6th Cir .1990)
;
University of Kentucky Bd. of Trustees v. Hayse, Ky.,
782 S.W.2d 609, 613 (1989). The statute typically
begins to run when a plaintiff becomes aware of facts
which would indicate to a layperson that he or she
should act to protect her rights. Collyer v. Darling,
98
F.3d 211, 220 (6th Cir.1996); Kelly v. Burks,
415 F.3d
558, 561 (6th Cir.2005); Dixon v. Anderson,
928 F.2d
212, 215 (6th Cir.1991).
The Sixth Circuit, applying this general rule of claim
accrual to the context of method-ofexecution claims,
has held that a challenge to a lethal injection protocol
as cruel and unusual-on whatever grounds-accrues
once the state that convicted the inmate has
completed its direct review of his conviction and the
plaintiff knows or has reason to know about the act
providing the basis of his or her injury. Cooey v.
Strickland,
479 F.3d 412, 418-19 (6th Cir.2007)
( “[setting] the accrual date at the conclusion of direct
review by the state ... is also an attractive choice
because it marks the point at which the state has
rendered its criminal judgment final and, absent
collateral civil proceedings, the point at which the
state sets the execution date. Furthermore, the death-
sentenced inmate can file suit and obtain relief.”). In
Cooey, however, the inmate's conviction became final
before Ohio had adopted lethal injection as a
permissible means of execution in 1993 or as the
required means of execution in 2001. Because
“Cooey obviously could not have discovered the
‘injury’ until one of these two dates,” the Sixth
Circuit held that his claim accrued on one of these
two dates, but did not decide the issue because the
claim was time-barred under either approach. Cooey,
479 F.3d at 422.
*3 Wilson argues that Cooey does not mandate a
particular result in this case because, unlike the Ohio
statute which required executions in 2001 and beyond
to be carried out by lethal injection, the Kentucky
statute vests him with the right to choose between
lethal injection and electrocution at any time up to 20
days before his scheduled execution. [Record No. 28
at pg. 5] According to Wilson, the potential that he
might choose electrocution at some point in the
future rendered any challenge to the lethal injection
protocol unripe until the very moment he renounced
his right to choose electrocution in the amended
complaint he filed in this action. [Record No. 28 at
pg. 6; Record No. 3 at ¶ 82]
As a threshold matter, Wilson cites Cooey for a
proposition which the Sixth Circuit expressly
declined to decide: while Cooey indicates that a
method-of-execution challenge to lethal injection
accrues no later than when that method becomes the
exclusive one by which executions are carried out, it
left open the question whether such a claim accrued
in fact far earlier, when lethal injection became an
optional, rather than required, method of execution.
Cooey,
479 F.3d at 422
. If the latter approach were
applied, Wilson's claim accrued in 1998 when the
Kentucky legislature adopted lethal injection as the
presumptive method of execution even though he had
not made an election under KRS 431.220(1)(b), and
his claims would unquestionably be time barred. FN1
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FN1.
Further, Wilson's argument, if
accepted, might prove too much. Wilson
contends that a Kentucky death-sentenced
prisoner's affirmative election between
execution by lethal injection or electrocution
is the sine qua non for a method-of-
execution claim to become ripe. As a legal
matter, this assertion is contrary to the well-
established law cited by Wilson in his own
brief. As a factual matter, Wilson's
assumption that he may make the election
permitted by KRS. 431.220(1)(b) in an
amended complaint filed with a federal
court, as opposed to a formal written
declaration, signed by him and submitted to
the Kentucky Department of Corrections, is
speculative at best. While the statute is silent
on the time, manner, specificity, or
revocability of giving notice of the election,
it is far from clear that his present statement
of a future intent to not invoke his right to an
election satisfies the statute or is otherwise
enforceable. If it is not, then even under
Wilson's view, his own lethal injection
claims remain unripe, and this matter would
have to be dismissed without prejudice for
lack of subject matter jurisdiction.
Wilson also appears to uncritically intermingle
notions of accrual and ripeness, two distinct legal
concepts. With respect to accrual, Cooey teaches that
a lethal injection claim has accrued once a state has
completed direct review of the inmate's conviction,
which occurred in Wilson's case in 1993, and once
the inmate has reason to know of the act giving rise
to the claim. Cooey,
479 F.3d at 422
. In Cooey, the
Sixth Circuit held that the “act giving rise to the
claim” was Ohio's adoption of lethal injection as a
method of execution, whether in the alternative or as
the exclusive means. Wilson argues for a radical
departure from this holding, asserting in essence that
the act which will give rise to the justiciability of his
claim will be his own act, when and if he decides to
perform it, of definitively choosing between lethal
injection and electrocution for purposes of KRS
431.220.
Wilson is of course correct that “[r]ipeness becomes
an issue when a case is anchored in future events that
may not occur as anticipated, or at all.” [Record No.
28 at pg. 5] (quoting Cleveland Branch, N.A.A.C.P. v.
City of Parma, OH, 263 F.3d 533 (6th Cir.2001)).
This concern is present in all lethal injection
litigation up until the point the claims are either
deemed meritorious warranting relief or the inmate is
executed. However, the potential that the future
actions challenged may not come to pass presents a
concern regarding ripeness, it does not ipso facto
render the claims unripe. Rather, when faced with
such a possibility, the court must still decide whether
to proceed in the face of that risk. As the Sixth
Circuit has explained:
*4 In ascertaining whether a claim is ripe for
judicial resolution, we ask two basic questions: (1)
is the claim “fit[ ] ... for judicial decision” in the
sense that it arises in a concrete factual context and
concerns a dispute that is likely to come to pass?
and (2) what is “the hardship to the parties of
withholding court consideration”?
Warshak v. United States, 532 F.2d 521, 525 (6th
Cir.2008) (citing Abbott Labs. v. Gardner,
387 U.S.
136, 149 (1967). As did the Sixth Circuit in Cooey,
the Court finds no reason to definitively establish a
particular point in time when Wilson's lethal injection
claims presented a ripe controversy, except to
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conclude that such time occurred no later than when
Wilson participated in a group grievance challenging
the lethal injection protocol on constitutional grounds
in 2004, if not earlier when Kentucky fixed lethal
injection as the presumptive method of execution in
1998.
Wilson's claims regarding the constitutionality of the
lethal injection protocol certainly involved “a dispute
that is likely to come to pass” when Kentucky
adopted that method as the presumptive means of
execution in 1998. While Wilson's retained right to
choose electrocution rendered his execution by lethal
injection less than a “certainty,” it certainly remained
“likely” under a statute which established lethal
injection as the default method in the absence of an
affirmative election by the death-sentenced inmate.
Further, the dispute arose in a “concrete factual
context” certainly no later than 2004 when Wilson
asserted in his group grievance that specific aspects
of the protocol-including the identity, amount, and
timing of the drugs and the qualifications of those
who would administer them-rendered the protocol
unconstitutional. There is no question that the factual
basis for Wilson's claims was sufficiently developed
no later than that juncture to present a live, ripe
controversy for adjudication.
As a final matter, ordinarily, when a defendant
challenges a plaintiff's claim on ripeness grounds as
brought too early, the court enquires into whether
withholding consideration of the merits will cause an
unnecessary hardship on the parties, particularly the
plaintiff. Abbott Labs,
387 U.S. at 149
. In this
context, where the roles are essentially reversed, it is
appropriate to consider whether delaying
consideration of the merits on ripeness grounds will
cause an unnecessary hardship on the parties,
particularly the defendant. Kentucky's statute permits
an inmate sentenced to death before March 31, 1998,
to make an election between alternative methods of
execution at any time prior to 20 days before the
execution is scheduled. In this regard, the Court is
mindful of “the State's strong interest in enforcing its
criminal judgments without undue interference from
the federal courts.” Hill v. McDonough,
126 S.Ct.
2096 (2006). The Court is thus not inclined to adopt
Wilson's proposed analysis of ripeness, which would
permit, and under the Defendants' construction of the
statute prevent, the assertion of a claim, let alone its
consideration and adjudication, until 20 days before a
scheduled execution. As a practical matter, Wilson's
proposed rule would require the entry of a stay of
execution in all cases in order to give adequate time
for consideration of the merits. In contrast, the
Court's analysis would promote, rather than
undermine, “[the] strong equitable presumption
against the grant of a stay where a claim could have
been brought at such a time as to allow consideration
of the merits without requiring entry of a stay,”
Nelson v. Campbell,
541 U.S. 637, 650 (2004)
. The
Court must therefore conclude that Wilson's lethal
injection claims accrued when Kentucky adopted
lethal injection as the presumptive method of
execution, and became ripe for adjudication either at
that time or no later than the denial of his 2004 group
grievance.
*5 Other courts considering like claims are in accord
with this conclusion. With respect to accrual, under
similar facts the court in Henley v. Little,
2009 WL
311139 (M.D. Tenn 2009), concluded that under
Cooey, a death-sentenced inmate's challenge to
Tennessee's lethal injection protocol accrued on
March 30, 2000, when lethal injection became
Tennessee's presumptive method of execution, in a
statute functionally identical to Kentucky's. Id. at *
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*3-4. With respect to ripeness, in Poland v. Steward,
117 F.3d 1094 (9th Cir.1997), a death-sentenced
Arizona inmate challenged the constitutionality of
execution by lethal gas and by lethal injection, two
methods from which the inmate could choose under
the applicable Arizona statute. Because the statute
established lethal injection as the presumptive
method of execution and the inmate had not made an
affirmative election to be executed instead by lethal
gas, the Ninth Circuit found his challenge to
execution by lethal gas unripe. Poland,
117 F.3d at
1104. In contrast, apparently finding no ripeness
concern in addressing his challenge to lethal
injection, the presumptive method of execution, the
Ninth Circuit addressed the claim on the merits and
rejected it. Id.
at 1105;
see also Jones v. Allen,
485
F.3d 635, 639 n. 2 (11th Cir.2007).
Pursuant to Federal Rule of Civil Procedure 25(d),
current Commissioner of the Kentucky Department
of
Corrections
LaDonna
Thompson
is
SUBSTITUTED as a party defendant and former
Commissioner John D. Rees is DISMISSED as a
party to this action, and current Governor Steve
Beshear is SUBSTITUTED as a party defendant and
former Governor Ernie Fletcher is DISMISSED as a
party to this action.
III. Conclusion.
Accordingly, IT IS ORDERED that:
1. Defendants' Motion to Dismiss, or in the
alternative, for Judgment on the Pleadings [Record
No. 25] is GRANTED, and Wilson's Complaint
[Record No. 1] is
DISMISSED WITH
PREJUDICE.
2. The Court will enter an appropriate Judgment.
E.D.Ky.,2009.
Wilson v. Rees
Slip Copy, 2009 WL 3188947 (E.D.Ky.)
END OF DOCUMENT
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