                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                      UNITED STATES CO URT O F APPEALS               August 25, 2006

                                  TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                      Clerk of Court


 ER IC ALLEN PA TTO N ,

          Plaintiff-Appellant,
 v.                                                    No. 06-6258
 JUSTIN JONES, in his capacity as                (D.C. No. CIV-06-591-F)
 Director, Oklahoma D epartment of                     (W . D. Okla.)
 Corrections; M ARTY SIRM ONS,
 W arden, Oklahoma State Penitentiary;
 JO HN DOE, Unknown Executioners in
 their capacities as Employees and/or
 Agents of the Oklahoma D epartment
 of Corrections,

          Defendants-Appellees.




                             OR D ER AND JUDGM ENT *


Before H ENRY, BRISCO E, and O’BRIEN, Circuit Judges.


      Plaintiff Eric Allen Patton, an Oklahoma state prisoner convicted of capital

murder, is currently scheduled to be executed by lethal injection on August 29,

2006. Patton filed suit against prison officials under 42 U.S.C. § 1983 arguing



      *
             This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
that the lethal injection protocol utilized by the State violates the Eighth

Amendment’s Cruel and Unusual Punishment Clause. In connection with his suit,

Patton asked the district court to enjoin defendants from carrying out his

execution using the challenged protocol. The district court denied Patton’s

motion. Patton now appeals from that ruling. Patton has also filed a motion for

stay of execution with this court. Exercising jurisdiction pursuant to 28 U.S.C. §

1292(a)(1), we affirm the district court’s ruling and deny Patton’s motion for stay

of execution.

                                           I.

      In November 1996, Patton was convicted in the District Court of Oklahoma

County, Oklahoma, of the first degree malice murder of Charlene Kauer. Patton

was subsequently sentenced, in accordance with the jury’s recommendation, to

death for that conviction. The O klahoma Court of Criminal Appeals (OCCA)

affirmed Patton’s murder conviction and death sentence on direct appeal, Patton

v. State, 973 P.2d 270 (Okla. Crim. App. 1998), cert denied, 528 U.S. 939 (1999),

and subsequently denied Patton’s application for post-conviction relief. Patton v.

State, 989 P.2d 983 (Okla. Crim. App. 1999).

      In August of 2000, Patton initiated federal habeas corpus proceedings by

filing a 28 U.S.C. § 2254 petition in the United States District Court for the

W estern District of Oklahoma. The district court denied Patton’s petition on

April 10, 2003. W e affirmed the denial of federal habeas relief on September 21,

                                           2
2005, Patton v. M ullin, 425 F.3d 788 (10th Cir. 2005), and the Supreme Court

denied Patton’s petition for writ of certiorari on M ay 30, 2006. Patton v.

Sirmons, 126 S.Ct. 2327 (2006). On July 10, 2006, the OCCA, acting upon the

request of the State of Oklahoma, set Patton’s execution date for August 29, 2006.

      In late February 2006, while his petition for writ of certiorari from his

federal habeas action was still pending with the Supreme Court, Patton initiated

an administrative grievance proceeding with the defendant prison officials

alleging that Oklahoma’s lethal injection protocol created a significant and

unnecessary risk that an inmate would consciously suffer excruciating pain. After

exhausting his administrative remedies, Patton initiated this 42 U.S.C. § 1983

civil action on M ay 31, 2006. In his complaint, Patton alleged that the lethal

injection protocol utilized by defendants, although purportedly designed “to

induce death only after a condemned prisoner has been rendered unconscious and

unable to experience pain,” actually violates the Eighth Amendment by creating

an unnecessary risk of “conscious suffering and pain during execution . . . .”

ROA, Doc. 4 at 1. M ore specifically, the complaint alleges, in pertinent part, that

the protocol (a) “fails to employ properly trained persons to carry out what is, in

effect, the surgical induction of anesthesia,” (b) “arbitrarily and unnecessarily

uses drugs and drug dosages that create significant risks that condemned prisoners

will suffer completely unnecessary pain during execution,” and (c) “delivers

drugs through two . . . IV lines, impairing control over the timing and sequence of

                                          3
drug delivery and increasing the risk of drug administration failure.” Id.

      On July 28, 2006, Patton filed a motion asking the district court to “enter a

preliminary injunction precluding the Defendants from proceeding with [his

scheduled] execution . . . on August 29, 2006.” Id., Doc. 17 at 22. The district

court conducted an evidentiary hearing on Patton’s motion on August 8, 2006. A t

the conclusion of the hearing, the district court denied the motion. Patton has

since filed a notice of appeal from the district court’s order of denial.

      On August 25, 2006, we granted Patton’s request for expedited oral

argument by conducting oral argument by telephone with Patton’s counsel and

counsel for defendants.

                                          II.

      W e review for abuse of discretion a district court’s order denying a motion

for stay of execution of a state prisoner. Bowersox v. W illiams, 517 U.S. 345,

346 (1996). Applying that standard to Patton’s appeal, we conclude, for the

reasons outlined below, that the district court did not abuse its discretion in

denying Patton’s motion to preliminarily enjoin his scheduled execution.

      In its recent decision in Hill v. M cDonough, 126 S.Ct. 2096 (2006), the

Supreme Court emphasized that filing a § 1983 action challenging the

constitutionality of certain aspects of a state’s execution protocol by no means

“entitle[s] the complainant to an order staying [his] execution as a matter of

course.” 126 S.Ct. at 2104. That is because “[b]oth the State and the victims of

                                           4
[the] crime have an important interest in the timely enforcement of [the]

sentence.” Id. Thus, an inmate intending to assert such a challenge generally

must file his or her suit in sufficient time to “allow consideration of the merits

without requiring entry of a stay” of execution. Hill, 126 S.Ct. at 2104 (quoting

Nelson v. Campbell, 541 U.S. 637, 650 (2004)).

        Here, the district court concluded that Patton failed to abide by this general

rule:

        This plaintiff has delayed – unnecessarily delayed his quest for
        injunctive relief from this Court. It was well-established at least two
        years ago [in Nelson] that he delayed at his peril. There was no legal
        impediment to his proceeding while his collateral review was
        pending and I do find that he has not shown any sufficient reason for
        delaying until M arch of 2006 the administrative procedure which
        serves as a predicate for his application now for judicial relief.

ROA, Vol. IV at 242-43

        W ithout identifying the precise point at w hich Patton should have filed his

suit, we agree that Patton has failed to act in a timely manner to challenge the

constitutionality of Oklahoma’s lethal injection protocol. Patton was initially

sentenced to death in late 1996, and his unsuccessful attempts to challenge that

sentence on direct appeal concluded in 1999. According to the record on appeal,

Oklahoma’s lethal injection protocol has remained essentially constant since that

time. Notwithstanding the constancy of the protocol, however, Patton made no

effort to challenge its constitutionality, either via prison administrative

proceedings or in a legal action filed in federal court, until more than six years

                                            5
after the completion of his direct appeal, nearly two years after the Supreme

Court warned in Nelson that “method-of-execution” challenges should be

“brought at such a time as to allow consideration of the merits without requiring

entry of a stay,” 541 U .S. at 650, and approximately five months after we

affirmed the district court’s denial of his application for federal habeas relief. 1

See Gomez v. United States District Court, 503 U.S. 653, 654 (1992) (criticizing

inmate for filing “method-of-execution” challenge pursuant to 42 U.S.C. § 1983

more than a decade after the completion of his direct appeal, and shortly before

his scheduled execution); W hite v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005)

(rejecting as dilatory a “method-of-execution” challenge brought pursuant to 42

U.S.C. § 1983 by inmate w ho had “been on death row for more than six years”).

      Our conclusion regarding the timeliness of Patton’s suit is not affected by

the fact that defendants have revised their protocol after Patton filed suit (once

immediately prior to the district court’s evidentiary hearing, and a second time

after Patton filed this appeal). To be sure, the revised protocol remedies some of

the flaws alleged by Patton in his complaint by altering the original sequence of

injections, which in turn increases the initial dose of anesthetic an inmate

receives, and by setting forth a specific period of time (two and one-half minutes)

      1
        Although Patton has at times alleged that he has been unaware until
recently of the precise details of the protocol, his counsel acknowledged during
oral argument that she and Patton have known what drugs are used, and the
sequence of those drugs, since January of 2004, when those details were described
in an affidavit from a Department of Corrections official.

                                            6
that must elapse after injection of the anesthetic and before injection of the

paralytic agent. As Patton himself admits in his appellate pleadings, however, the

revised protocol “fail[s] to address, much less alleviate, the critical flaws” that he

alleged existed in the original protocol, including most notably “the absence of

qualified personnel to verify the inmate was actually anesthetized before the

lethal drugs w ere administered.” A plt. Br. at 24. Thus, in pertinent part, his

constitutional challenges to the revised protocol are identical to his constitutional

challenges to the original protocol. 2

      At bottom, Patton has failed to act in a timely fashion to challenge the

constitutionality of Oklahoma’s lethal injection protocol. Therefore, we must, as

directed by the Supreme Court in Hill and Nelson, apply a strong equitable

presumption against staying Patton’s scheduled execution.

      Armed with that presumption, we have examined the remainder of the

record on appeal, giving particular attention to the transcript of the evidentiary



      2
        W e note that Oklahoma adopted lethal injection as its method of
execution in 1977. See Okla. Stat. tit. 22, § 1014. The precise protocol for
carrying out lethal injections is left to the discretion of the Oklahoma D epartment
of Corrections (ODC). At the time Patton filed this suit, the O DC had most
recently revised its protocol as of M ay 2, 2005 (more than one year prior to
Patton filing his suit). The exhibits submitted by Patton during the district court’s
evidentiary hearing, however, indicate that the protocol used by the ODC has
remained largely the same since at least early 1998. The only changes in the
protocol since that time appear to have been (a) changes in the precise type of
paralytic drug used (the ODC switched from using tubocurarine to succnylcholine
in early 2002, and from succnylcholine to vecuronium in early 2003), and (b) the
sequencing and timing changes recently implemented in the revised protocol.

                                           7
hearing and the exhibits admitted during that hearing. The district court found,

and Patton does not dispute, that under the revised protocol “an EM T or person

with similar qualifications and experience in IV insertion” is responsible for, and

is capable of, determining that venous access has been successfully accomplished,

and that the dosage of anesthetic (thiopental) an inmate now receives (2,400

milligrams) is “extremely likely . . . to achieve a deep plane of anesthesia in a

230-pound individual,” such as Patton. ROA, Vol. IV at 235. To be sure, the

expert witnesses presented by Patton at the evidentiary hearing raised several

concerns about the failure of the revised execution protocol to require properly

trained personnel to be present during executions (to assess anesthetic depth prior

to the injection of the drugs that cause paralysis and cardiac arrest and death, and

to remedy any unforeseen problems that may occur), and to specify more precise

timing of the injections so as to reduce the likelihood of an inmate being

conscious during the latter stages of the procedure. The defendants, however,

have allayed this latter concern by revising the protocol during the pendency of

this appeal to require the personnel carrying out an execution to wait two and

one-half minutes after the injection of the anesthetic before proceeding to inject

the remaining two drugs called for in the protocol. 3 See ROA, Vol. IV at 232

      3
        This information was provided to the court during oral argument by
Robert W hittaker, Assistant Attorney General for the State of O klahoma. M r.
W hittaker further advised the court that, upon the request of M r. Patton, the
defendants w ould be willing to increase the wait time from two and one-half to
                                                                        (continued...)

                                           8
(district court’s finding that “two and a half minutes from the onset of injection

[of the anesthetic] is optimal” to achieve the appropriate plane of anesthesia). In

light of the district court’s findings and the defendants’ recent revision to the

protocol, we conclude that Patton has failed to establish a “significant possibility

of success on the merits” of his Eighth Amendment claims. Hill, 126 S.Ct. at

2104. In reaching this conclusion, we agree with the district court that the critical

question in this case “is not what is optimally desirable,” as, for example, in a

surgical setting, but rather “what is minimally required” to avoid a violation of

the Eighth Amendment. ROA, Vol. 4 at 239; see generally Gregg v. Georgia, 428

U.S. 153, 173 (1976) (holding that punishments are cruel when they “involve the

unnecessary and wanton infliction of pain”); In re Kemmler, 136 U.S. 436, 447

(1890) (holding that “[p]unishments are cruel when they involve torture or a

lingering death”). Thus, we conclude there is nothing in the record sufficient to

overcome the presumption created by Patton’s late filing of his § 1983 action.

      Patton’s request for expedited oral argument is GRANTED. Patton’s

motion for stay of execution is DENIED. The order of the district court denying

Patton’s motion to preliminarily enjoin his scheduled execution is AFFIRM ED.

Patton shall have until 9 a.m., M ountain Standard Time, on M onday, August 28,

2006, in which to file a petition for rehearing en banc.



      3
       (...continued)
three minutes.

                                           9
06-6258, Patton v. Jones, et al.

H ENRY, J., concurring.

      I fully join this order and judgment which concludes that the district court

did not abuse its discretion in denying this injunction. I note only that

introduction into the protocol of an anesthesiologist, nurse anesthetist, or other

adequately trained medical personnel, though not constitutionally required under

our current precedent and present knowledge of science, merits thoughtful

consideration by the state.
