http://www.clarencehill.us/legal/declaratory.htm-1-
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
CASE NO. 4:06-cv-00032-SPM
CLARENCE EDWARD HILL,
Plaintiff,
v.
JAMES MCDONOUGH, SECRETARY OF
THE FLORIDA DEPARTMENT OF - EMERGENCY APPLICATION:
CORRECTIONS, - CAPITAL CASE, DEATH
in his official capacity;
WARRANT SIGNED; EXECUTION
IMMINENT.
September 20, 2006 at 6:00 p.m.
and
CHARLES J. CRIST, JR., ATTORNEY
GENERAL,
in his official capacity
Defendant(s).
AMENDED VERIFIED COMPLAINT FOR
DECLARATORY & INJUNCTIVE RELIEF
I. Nature of Action
1. This action is brought pursuant to 42 U.S.C. § 1983
for violations and threatened violations of the right of
Plaintiff to be free from cruel and unusual punishment under
the Eighth and Fourteenth Amendments to the United States
Constitution. Plaintiff seeks equitable and injunctive
relief.
-2-
II. Plaintiff
2. Clarence Hill is a United States citizen and a
resident of the State of Florida. He is currently a deathsentenced
inmate under the supervision of the Florida
Department of Corrections. His DC Number is 089718. He is
held in the Florida State Prison, Starke, Florida, 32091.
III. Defendants
3. Defendant William McDonough is the Secretary of the
Florida Department of Corrections. Defendant Charles J.
Crist, Jr., is the Attorney General for the State of Florida.
IV. Jurisdiction and Venue
4. This Court has jurisdiction pursuant to 28 U.S.C. §§
1331 (federal question), 1343 (civil rights violations), 1651
(all-writs) 2201 (declaratory relief), 2202 (further relief).
This action arises under the Eighth and Fourteenth Amendments
to the United States Constitution and under 42 U.S.C. § 1983.
5. Venue in this Court is proper under 28 U.S.C. §
1391. This Court has personal jurisdiction over the
defendants in this matter, because the defendants are located
in the Northern District of Florida.
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES
6. Plaintiff has no administrative remedy available as
the lethal injection procedure at issue is a prospective
violation of his constitutional rights, not ripe for
1 The procedural history of the appeals and habeas petitions
filed by Mr. Hill are detailed in Attachment C and adopted as if
expressly stated herein.
-3-
administrative remedy. Additionally, issues decided by caselaw
cannot be grieved within the Florida Department of Corrections
grievance system. The cruel irony is the issue is mooted once
the violation occurs and Mr. Hill is dead. Mr. Hill has
exhausted his state and federal court remedies via appeals and
habeas petitions. Mr. Hill prevailed in the above-styled cause
before the U.S. Supreme Court in this capital case as to the
propriety of bringing this claim in §1983.1 See Attachment A.
Therefore, Mr. Hill has exhausted all avenues of relief and
turns to this Court for protection of his constitutional right
to be free from cruel and unusual punishment.
VI. Facts
7. Plaintiff Clarence Hill is scheduled for execution
on September 20, 2006, at 6:00 p.m. Defendants plan to
execute the Plaintiff by lethal injection using a succession
of three chemicals: sodium pentothal, pancuronium bromide, and
potassium chloride.
8. Florida’s lethal injection procedure was adopted
without any medical rearch or review to determine that a
condemned individual would not suffer a cruel and torturous
death. No member of the medical community participated in the
formulation and adoption of Florida’s lethal injection
procedure.
9. The absence of standardized procedures for the
administration of the chemicals, the unqualified personnel
involved in the procedure, and the combination of the three
particular chemicals utilized create a dangerous likelihood
that Mr. Hill will be conscious throughout the execution
process and, as a result, will experience an excruciatingly
painful and protracted death.
10. Florida’s lethal injection procedure lacks the
medically necessary safeguards to insure Plaintiff will not
suffer torturous pain during his execution.
11. Florida’s lethal injection procedure does not
establish any minimum qualifications or expertise required of
the personnel who perform all of the tasks in the procedure.
There are insufficient guidelines upon which these personnel
can rely if they are required to exercise their discretion
during the process. The protocol has no plan in place if the
Plaintiff requires medical assistance during the execution.
12. As set forth in greater detail in the declaration of
anesthesiologist, Dr. David A. Lubarsky (Attachment B), the
use of this succession of chemicals creates a foreseeable risk
of the gratuitous and unnecessary infliction of pain on a
person being executed.
13. Specifically, sodium pentothal, also known as
thiopental, is an ultra-short acting substance which produces
shallow anesthesia. (Att. B). Health-care professionals use
it as an initial anesthetic in preparation for surgery while
they set up a breathing tube in the patient and use different
drugs to bring the to patient to a “surgical plane” of
anesthesia that will last through the operation and will block
the stimuli of surgery which would otherwise cause pain.
Sodium pentothal is intended to be defeasible by stimuli
associated with errors in setting up the breathing tube and
initiating the long-run, deep anesthesia; the patient is
supposed to be able to wake up and signal the staff that
something is wrong.
14. The second chemical used in lethal injections in
Florida is pancuronium bromide, sometimes referred to simply
as pancuronium. It is not an anesthetic. It is a paralytic
agent, which stops the breathing. It has two contradictory
effects: first, it causes the person to whom it is applied to
suffer suffocation when the lungs stop moving; second, it
prevents the person from manifesting this suffering, or any
other sensation, by facial expression, hand movement, or
speech. (Att. B). Pancuronium bromide is unnecessary to bring
about the death of a person being executed by lethal
injection. (Att. B).
2 The study focused on several states which conducted
autopsies and prepared toxicology reports, and which made such
data available to these scholars. (Att. B).
-6-
15. The American Veterinary Medical Association (AVMA)
panel on euthanasia specifically prohibits the use of
pentobarbital with a neuromuscular blocking agent to kill
animals. (Att. C). Additionally, 19 states have expressly or
implicitly prohibited the use of neuromuscular blocking agents
in animal euthanasia because of the risk of unrecognized
consciousness. (Att. C).
16. The third chemical is potassium chloride, which is
the substance that causes the death of the prisoner. It burns
intensely as it courses through the veins toward the heart.
It also causes massive muscle cramping before causing cardiac
arrest. (Att. B). When the potassium chloride reaches the
heart, it causes a heart attack. If the anesthesia has worn
off by that time, the condemned feels the pain of a heart
attack. However, in this case, Mr. Hill will be unable to
communicate his pain because the pancuronium bromide has
paralyzed his face, his arms, and his entire body so that he
cannot express himself either verbally or otherwise. (Att. B).
17. In a recent study published in 2005, Dr. David A.
Lubarsky and three co-authors published in the world-renowned
medical journal THE LANCET the results of their research on
the effects of chemicals in lethal injections.2 See Koniaris
L.G., Zimmers T.A., Lubarski D.A., Sheldon J.P., Inadequate
anaesthesia in lethal injection for execution, Vol 365, THE
LANCET 1412-14 (April 16, 2005)(Att. C).
18. The LANCET team found that in toxicology reports in
the cases they studied, post-mortem concentrations of
thiopental in the blood were lower than that required for
surgery in 43 of 49 executed inmates (88%). Moreover, 21 of
the 49 executed inmates (43%) had concentrations consistent
with awareness, as the inmates had an inadequate amount of
sodium pentothal in their bloodstream to provide anesthesia.
(Att. C). In other words, in close to half of the cases, the
prisoner felt the suffering of suffocation from pancuronium
bromide, and the burning through the veins followed by the
heart attack caused by the potassium chloride.
19. The chemical process utilized in executions in
Florida is identical to that identified in the study:
In all, a total of eight syringes will be used, each
of which will be injected in a consecutive order
into the IV tube attached to the inmate. The first
two syringes will contain "no less than" two grams
of sodium pentothal, an ultra-short-acting
barbiturate which renders the inmate unconscious.
The third syringe will contain a saline solution to
act as a flushing agent. The fourth and fifth
syringes will contain no less than fifty milligrams
of pancuronium bromide, which paralyzes the muscles.
The sixth syringe will contain saline, again as a
flushing agent. Finally, the seventh and eighth
syringes will contain no less than one-hundred-fifty
milliequivalents of potassium chloride, which stops
the heart from beating.
3While Mr. Hill requested updated information from the
defendants, such request was refused. Thus, at the present time,
Mr. Hill can only assume that the Florida Department of
Corrections has not changed this chemical process since the Sims
opinion.
-8-
Sims v. State, 754 So. 2d 657, 666 (Fla. 2000).
20. As stated by Dr. Lubarsky, because Florida’s
practices are substantially similar to those of the
lethal-injection jurisdictions which conducted autopsies and
toxicology reports, which kept records of them, and which
disclosed them to the LANCET scholars, there is at least the
same risk (43%) as in those jurisdictions that Mr. Hill will
not be anesthetized at the time of his death. (Att. B).
2.
21. Since Mr. Hill’s original complaint, new, critical
information has surfaced that undermines the theories that
originally supported the current lethal injection protocols
used in states, including Florida. This new information
demonstrates the flaws in Florida’s current lethal injection
protocols and supports Mr. Hill’s claim that under the current
Florida lethal injection protocol he will suffer unnecessary
and excruciating pain while being executed in violation of his
Eighth Amendment right not to be subjected to cruel and
unusual punishment. In Missouri, an evidentiary hearing was
held and discovery conducted regarding Missouri’s recent
executions. The case involved Michael Taylor, a condemned
inmate challenging the lethal injection protocol used in
Missouri executions. Information was revealed that showed
that “unacceptable” risks existed in Missouri’s execution
procedures that may cause a condemned inmate unconstitutional
pain and suffering. Taylor v. Crawford, 2006 U.S. Dist. LEXIS
42949, 22 (June 26, 2006). The Court stated:
After learning more about how executions are
carried out in Missouri, through the interrogatories
submitted to the John Doe defendants, reviewing the
chemical dispensary logs, reviewing the videotape of
the execution chamber and listening to the testimony of
John Doe I, and to the testimony of the other expert
witnesses at the June 12-13, 2006 hearing, it is
apparent that there are numerous problems. Id. at *19.
These problems included:
1) no written protocol existed describing which drugs were
administered, the dosage to be used, and the method of
administration;
2) the State had misrepresented the amount of sodium
thiopental that had been administered in recent executions; five
(5) grams was to have been administered, but only two and a half
(2.5) grams were actually administered;
3) the doctor overseeing the executions was not an
anesthesiologist, but rather a surgeon, who was not well versed
in mixing and dissolving the chemicals used in the execution
protocol and who believed he could modify the amount of chemicals
and/or protocol at his discretion;
4At this juncture the State of Florida has not provided any
information whatsoever regarding its lethal injection protocols
and procedures.
-10-
4) there is no means to monitor the anesthetic depth of the
condemned during the execution procedure.
5) there are no checks and balances or oversight at any
point in the process. Id. at 19-21.
22. The Court observed, “It is obvious that the protocol as
it currently exists is not carried out consistently and is
subject to change at a moments notice.” Id. at *19. Mr. Hill
believes the problems detailed above are also present in
Florida’s lethal injection.4 Of particular note to Mr. Hill’s
case is that the District Court in Taylor was concerned that the
amount of sodium pentothal had been decreased from five (5) grams
to two and a half (2.5) grams, which is still more than the State
of Florida intends to administer in Mr. Hill’s execution.
23. The facts developed in Morales v. Hickman, Morales v.
Hickman, 2006 WL 335427 (N.D. Cal., Feb. 14, 2006) reviewed at
Morales v. Hickman, 2006 WL 391604 (9th Cir., 2006), furnish a
wealth of information concerning the inadequacy of the procedures
employed in lethal injection procedures nationwide. The record
developed in Mr. Morales case demonstrates that California’s
lethal injection procedure created an unjustifiable likelihood
that he would endure excruciating pain if executed by lethal
injection.
5As the Ninth Circuit observed: “There is no dispute that in
the absence of a properly administered anesthetic, Morales would
experience the sensation of suffocation as a result of the
pancuronium bromide and excruciating pain from the potassium
chloride activating nerve endings in Morale’s veins.” Morales v.
Hickman, 2006 WL 391604 at *2.
-11-
24. Florida and California’s execution protocols are
similar in that they both use the same three chemicals and
similar methods to dispense the chemicals. Both employ machines
to inject the drugs, rather than utilize a traditional syringe,
and the same three drugs (sodium thiopental, pancuronium bromide,
and potassium chloride) are utilized. Morales’ challenge is
essentially that some element or interaction of the elements of
the lethal injection procedure will result in him not being
properly anesthetized by the sodium thiopental and the injection
of the other chemicals will subject him to torturous pain.5
25. Morales also argued that there were recurrent, critical
problems with equipment and personnel used in the lethal
injection procedure. The permitted factual development was
critical to Morales demonstrating that prison personnel were not
properly trained to insert intravenous lines and that the
execution team deviated from their protocol by administering
multiple doses of chemicals and the these irregularities were not
reported in execution records.
26. In at least three of the executions reviewed in the
Morales litigation intravenous line placement was a problem. News
-12-
reports detailed problems with the line placement during the
execution of Stanlet “Tookie” Williams. Kevin Fagan, The
Execution of Stanley “Tookie” Williams Eyewitness: Prisoner Did
Not Die Meekly, Quietly, S.F. CHRON., Dec. 14, 2005, at A12. The
first line was placed quickly, although it spurted blood, and
then the staff struggled to insert the second line. The line
placement took long enough that “[b]y 12:10 a.m., the medical
tech’s lips were tight and white and sweat was pooling on her
forehead as she probed William’s arm.” Id. More importantly, the
execution log showed that one of the intravenous lines failed.
This illustrative experience demonstrates that properly trained
and experienced personnel are critical for this difficult
process.
27. The district court in Morales cogently observed as to
the administration of multiple doses of potassium chloride:
[E]vidence in the present record raises additional
concerns as to the manner in which the drugs used in
the lethal-injection protocol are administered. For
example it is unclear why some inmates - including
Clarence Ray Allen, who had a long history of coronary
artery disease and suffered a heart attack less than
five months before he was executed, ... – have required
second doses of potassium chloride to stop promptly the
beating of their hearts. Morales v. Hickman, 2006 WL
335427 at *6(N.D. Cal., Feb. 14, 2006).
28. Morales also received the detailed execution logs from
several of the recent executions in the State of California. Id.
The logs suggest that, contrary to the theoretical principle that
-13-
a high dose of sodium pentothal causes a condemned’s loss of
consciousness and respiration to cease within a minute, in many
executions respiration and consciousness do not cease until
several minutes after the administration of sodium pentothal. Id.
at 1044-1045. In Morales, the District Court noted the following
pertinent details about the execution logs:
Jaturun Siripongs, executed February 9, 1999: The
administration of sodium thiopental began at 12:04 a.m.
and the administration of pancuronium bromide began at
12:08 a.m., yet respirations did not cease until 12:09
a.m., four minutes after the administration of sodium
thiopental began and one minute after the
administration of pancuronium bromide began.
Manuel Babbitt, executed May 4, 1999: The
administration of sodium thiopental began at 12:28 a.m.
and the administration of pancuronium bromide began at
12:31 a.m., yet respirations did not cease until 12:33
a.m., five minutes after the administration of sodium
thiopental began and two minutes after the
administration of pancuronium bromide began. In
addition, brief spasmodic movements were observed in
the upper chest at 12:32 a.m.
Darrell Keith Rich, executed March 15, 2000: The
administration of sodium thiopental began at 12:06 a.m.
and the administration of pancuronium bromide began at
12:08 a.m., yet respirations did not cease until 12:08
a.m., when pancuronium bromide was injected, two
minutes after the administration of sodium thiopental
began. Chest movements were observed from 12:09 a.m. to
12:10 a.m.
Stephen Wayne Anderson, executed January 29, 2002:
The administration of sodium thiopental began at 12:17
a.m. and the administration of pancuronium bromide
began at 12:19 a.m., yet respirations did not cease
until 12:22 a.m., five minutes after the administration
of sodium thiopental began and three minutes after the
administration of pancuronium bromide began.
-14-
Stanley Tookie Williams, executed December 13,
2005: The administration of sodium thiopental began at
12:22 a.m., the administration of pancuronium bromide
began at 12:28 a.m., and the administration of
potassium chloride began at 12:32 a.m. or 12:34 a.m.,
yet respirations did not cease until either 12:28 a.m.
or 12:34 a.m. -- that is, either six or twelve minutes
after the administration of sodium thiopental began,
either when or six minutes after the administration of
pancuronium bromide began, and either four minutes
before or when the administration of potassium chloride
began.
Clarence Ray Allen, executed January 17, 2006: The
administration of sodium thiopental began at 12:18
a.m., yet respirations did not cease until 12:27 a.m.,
when pancuronium bromide was injected, nine minutes
after the administration of sodium thiopental began.
Morales v. Hickman, 415 F.Supp. 2d at 1044-1045 (footnotes
omitted).
29. The discovery and factual development in Morales was
ample enough to render the district court capable of determining
that California’s execution protocol was rife with grievous
problems that threatened to produce gratuitous, wanton, torturous
pain unless the protocol was substantially modified. The evidence
demonstrated a highly significant difference between the painless
way the protocol was to work in theory and the torturous way it
actually operated.
30. Indeed, following the evidence that surfaced after
discovery was disclosed about the recent executions in
California, a District Court in Ohio granted a condemned inmate’s
request for preliminary injunction based on a challenge to the
Case 4:06-cv-00032-SPM Document 37 Filed 09/01/2006 Page 14 of 20
6Ohio, like Florida, requires two (2) grams of sodium
pentothal be administered. Cooey v. Taft, et. al, 430 F.Supp 2d
702 (2006); 2006 U.S. Dist. LEXIS 24496, 13.
-15-
chemicals and the amount of chemicals used in the execution
procedures in Ohio.6 The District Court stated:
this Court would be remiss if it did not take note
of the evidence that the district courts in Morales and
Brown considered. And that evidence raises grave
concerns about whether a condemned inmate would be
sufficiently anesthetized under Ohio’s lethal-injection
protocol prior to and while being executed, especially
considering that the dose of sodium thiopental
prescribed under Ohio’s lethal-injection protocol (2
grams) is less than that prescribed under California’s
protocol (5 grams) and that prescribed under North
Carolina’s protocol (3000 mg).”
Cooey v. Taft, et. al, 430 F.Supp 2d 702 (2006); 2006
U.S. Dist. LEXIS 24496, 13. The District Court referenced
the execution logs disclosed in Morales, as well as other
affidavits and information.
31. In regards to the evidence submitted in Brown v. Beck,
the Cooey Court also noted the autopsy results that showed the
post-mortem levels of sodium pentothal being less than what would
be expected. Id. at 11-12. And, again, in Brown, evidence was
submitted from witnesses present at recent executions who had
seen condemned inmates writhing and convulsing after the
administration of the sodium pentothal, which was inconsistent
with the notion that the inmates had lost consciousness. Thus,
the information submitted in Brown v. Beck is entirely consistent
7In addition to the recent developments mentioned above, on
August 21, 2006, the Associated Press reported that in light of
testimony during a recent hearing on lethal injection in
Oklahoma, that state “has changed the way it administers fatal
drugs during executions.” According to the article, Oklahoma
changed the way it had administered the fatal drugs in 2005, but
will now administer a double dose of the sedative, thiopental,
before administering the sodium chloride to stop the heart.
Additionally, Oklahoma will also insert two intravenous lines so
-16-
and supports the recent scientific research published in the
Lancet article.
32. In issuing the preliminary injunction in Cooey, the
District Court found: “Given the evidence that has begun to
emerge calling this and other conclusions by Dr. Dershwitz into
question, the Court is persuaded that there is an unacceptable
and unnecessary risk that Plaintiff Hill will be irreparably
harmed absent the injunction, i.e., that Plaintiff Hill could
suffer unnecessary and excruciating pain while being executed in
violation of his Eighth Amendment right not to be subjected to
cruel and unusual punishment.” Id. at 15. Further, the District
Court in Cooey found that “[i]n view of the lack of development
of the record in this case, this Court does not feel that it is
in a position to avoid the issuance of a preliminary injunction
by fashioning a remedy by which Ohio could carry out the
execution of Plaintiff Hill within the confines of the Eighth
Amendment.” Id. at 19. This finding by the Court in Cooey
illustrates the vast and critical developments in lethal
injection litigation since the inception of Mr. Hill’s action.7
Case 4:06-cv-00032-SPM Document 37 Filed 09/01/2006 Page 16 of 20
that there is a back-up in case one of the lines fails. When
Florida adopted lethal injection as a method of execution, the
protocol was modeled after the protocol that was used in Oklahoma
in 2000 – a protocol which has been changed in order to reduce
the chance that a condemned inmate would not be sufficiently
sedated.
-17-
VII. Claim
33. Plaintiff incorporates paragraphs 1-32 by reference.
34. James McDonough, Secretary of the Florida Department of
Corrections and Charles J. Crist, Jr., Attorney General, are
acting under color of Florida law by using a succession of three
chemicals that will cause unnecessary pain in the execution of a
sentence of death, thereby depriving Plaintiff of his rights
under the Eighth and Fourteenth Amendments to be free from cruel
and unusual punishment, in violation of 42 U.S.C. § 1983.
35. Florida’s lethal injection procedure violates
Plaintiff’s rights under the cruel and unusual punishment clause
of the Eighth and Fourteenth Amendments because the procedure
creats the unreasonable and unacceptable risk of unnecessary
physical and psychological pain; the procedure does not comport
with contemporary norms and standards of society; and the
procedure offends the dignity of the person and society.
VIII. Prayer for Relief
36. Plaintiff requests that this Court issue a preliminary
temporary injunction, prohibiting defendants from executing
-18-
Plaintiff until this Court has had the opportunity to fully
consider this complaint without haste.
37. Plaintiff requests that this Court grant a permanent
injunction, barring defendants from executing Plaintiff in the
manner they currently intend.
38. Plaintiff requests that this Court grant reasonable
attorneys’ fees pursuant to 42 U.S.C. § 1988 and the laws of the
United States, as well as for costs of suit and any further
relief that this Court deems just and proper.
This 1st day of September 2006.
Respectfully submitted,
/S/ D. Todd Doss
D. Todd Doss
Florida Bar 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025
Telephone No. (386)755-9119
Facsimile No. (386)755-3181
dosslaw@bizsea.rr.comAttorney for Plaintiff
VERIFICATION
State of Florida
County of Columbia
I, D. Todd Doss, attorney for Plaintiff in the aboveentitled
action, being duly sworn, state that to the best of my
knowledge and belief, the facts sets for in this Complaint are
true and correct.
/s/ D. Todd Doss
D. Todd Doss
Florida Bar 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025
Telephone No. (386)755-9119
Facsimile No. (386)755-3181
dosslaw@bizsea.rr.comAttorney for Plaintiff
Subscribed to and sworn before me this 1st day of September 2006.
_________________________
Notary public, State of Florida
Commission expires:
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing document has been
served on the following counsel via electronic filing this 1st
day of September 2006.
______________________________
D. Todd Doss
Florida Bar 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025
Telephone No. (386)755-9119
Facsimile No. (386)755-3181
dosslaw@bizsea.rr.comAttorney for Plaintiff
Copies furnished to:
Carolyn Snurkowski
Assistant Attorney General
Office of the Attorney General
Plaza Level 1
The Capitol
Tallahassee, FL 32399
