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COMES now the Plaintiff, CLARENCE HILL, through undersigned

counsel and respectfully moves for a temporary injunction staying

his execution in the manner currently intended. Mr. Hill’s

execution is presently scheduled for September 20, 2006 at 6:00

p.m. In support Mr. Hill states:

Plaintiff, Clarence Hill, was convicted of first degree

murder in 1983. On appeal, his conviction was affirmed, but his

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 1 of 32

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sentence was vacated. Following a second sentencing proceeding,

Mr. Hill was again sentenced to death, and the Florida Supreme

On November 9, 1989, the Governor of Florida signed a death

warrant scheduling Mr. Hill’s execution for January 25, 1990.

Mr. Hill filed an expedited postconviction motion, which was

denied on January 18, 1990. On appeal, the Florida Supreme Court

Mr. Hill subsequently filed a Motion to Stay Execution and a

Petition for Writ of Habeas Corpus in the United States District

Court for the Northern District of Florida on January 27, 1990.

After granting a stay of execution, on August 31, 1992, the

district court granted relief to Mr. Hill on a sentencing issue.

On remand, the Florida Supreme Court again denied relief.

subsequent state and federal applications, including his federal

On Friday, January 20, 2006, Mr. Hill brought an action

pursuant to 42 U.S.C. § 1983 in the United States District Court,

Northern District of Florida, Tallahassee Division. Mr. Hill

alleged violations of his right to be free from cruel and unusual

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 2 of 32

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punishment under the Eighth and Fourteenth Amendments to the

United States Constitution. On Saturday, January 21, 2006, the

district court dismissed Mr. Hill’s complaint for declaratory and

injunctive relief for lack of jurisdiction. Thereafter, on

Monday, January 23, 2006, Mr. Hill filed a Notice of Appeal and

by separate pleading an application for stay of execution. On

January 24, 2006, the United States Court of Appeals for the

Eleventh Circuit denied his application for stay. The Eleventh

Circuit Court went on to hold that Mr. Hill’s action was a

successive petition for a writ of habeas corpus and that any

application for leave to file a successive petition would be

Mr. Hill then filed a petition for certiorari review and an

application for stay by separate pleading in the Supreme Court of

the United States. At 7:00 p.m., January 24, 2006, Justice

Kennedy issued a stay until the full court could consider Mr.

Hill’s pleadings. The following day, January 25, 2006, the full

court granted Mr. Hill a stay and granted certiorari. The stay

was to remain in effect until the Supreme Court of the United

1189, 163 L.Ed.2d 1144, 2006 U.S. LEXIS 1074 (January 25, 2006).

Subsequently, the Court rendered a 9-0 decision that reversed and

remanded the cause back to the Eleventh Circuit Court for

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 3 of 32

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S.Ct 2096, 165 L.Ed.2d 44, 2006 U.S. LEXIS 4674 (June 12, 2006).

The Court held that Mr. Hill’s claim under 42 U.S.C. § 1983 was

U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) and Mr. Hill

126 S.Ct 2096, 165 L.Ed.2d 44, 2006 U.S. LEXIS 4674 (June 12,

2006). The Supreme Court decision became final on July 14, 2006.

The Eleventh Circuit Court panel received the case on remand

on July 18, 2006. On August 17, 2006, the State of Florida

arbitrarily scheduled Mr. Hill for execution on September 20,

2006. After waiting for the Eleventh Circuit to remand to this

Court, Mr. Hill filed his Motion for Immediate Remand of This

Cause to the District Court via overnight mail on August 23,

2006. The Eleventh Circuit then remanded this cause on August 29,

2006 to this Court with the mandate being received on August 30,

2006.

Undersigned counsel’s office was contacted by this Court by

telephone yesterday, August 31, 2006. At the time of the call,

undersigned counsel was out of town conducting attorney visits

with clients on Florida’s Death Row, including Mr. Hill.

Undersigned counsel then arrived back at his office at

approximately 5:00 p.m. At this time, undersigned learned

through his assistant of this Court’s directive that all

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 4 of 32

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pleadings in this matter were to be filed by the parties prior to

12:00 p.m., today, September 1, 2006. Undersigned counsel, a

sole practitioner, then had less than twenty-four hours to comply

with this Court’s order.

**54, 2006 U.S. LEXIS 4674, ***21 (2006). The Eleventh Circuit

Court of Appeals has in the past utilized a four-part test in

determining whether a stay of execution should be granted that

whether the movant has made a showing of likelihood of

success on the merits and of irreparable injury if the

stay is not granted, whether the stay would

substantially harm other parties, and whether granting

the stay would serve the public interest.

Hill has met the standards attendant to the granting of a stay of

his execution. The Supreme Court of the United States considered

these same factors when granting Mr. Hill a stay to consider the

case which eventually led to its reversing this Court’s decision

and remanding it back for consideration consistent with its

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 5 of 32

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If the requested temporary injunction is not issued, Mr.

Hill will be executed by lethal injection in a torturous manner

in violation of his Eighth Amendment right to be free from cruel

and unusual punishment at the Florida State Prison on Wednesday,

September 20, 2006, at 6:00 p.m. This constitutes irreparable

(Rehnquist, Circuit Justice, granting a stay of execution and

noting the “obviously irreversible nature of the death penalty”);

“irreversible nature of the death penalty” constitutes

irreparable injury and weighs heavily in favor of granting a

(holding that continued pain and suffering resulting from

deliberate medical indifference is irreparable harm). Further

harm will result from Mr. Hill’s torturous execution because he

will no longer have any meaningful remedy, because he will be

dead. Additionally, the State’s violation of Mr. Hill’s Eighth

Amendment rights alone validates a presumption of irreparable

1991) (an alleged constitutional infringement will often alone

constitute irreparable harm).

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 6 of 32

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There will be no harm to other parties if a stay of

execution is granted. Mr. Hill will remain in the custody at

Florida State Prison, where he has been held since his conviction

and, most recently, since the stay of execution was entered by

the Supreme Court of the United States on January 25, 2006. A

(Noonan, J., dissenting from grant of writ of mandate) (“The

state will get its man in the end. In contrast, if persons are

put to death in a manner that is determined to be cruel, they

suffer injury that can never be undone, and the Constitution

suffers an injury that can never be repaired.”)

Although there are competing public interests, ultimately

one factor favors the issuance of the temporary relief sought.

Certainly, the public has an interest in the execution of Mr.

Hill pursuant to the judgment of the Florida Courts. More

importantly, however, it has an interest in having no execution

take place until it is determined that Mr. Hill’s execution will

be carried out consistent the with requirements of the Eighth

Amendment and him not being subjected to the excruciating and

torturous pain likely involved in the lethal injection process

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 7 of 32

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(Fla. 2000). It is therefore paramount that Mr. Hill’s weighty

constitutional claims be resolved on the merits.

By arbitrarily setting an execution date while this case was

awaiting remand, the State has attempted to manipulate the

process and kill Mr. Hill before their unconstitutional method of

execution is reviewed on the merits. The temporary delay in

carrying out the execution, which will be necessitated by review

and consideration of the merits of Mr. Hill’s case, is a small

price to pay to assure fairness in this critical aspect of

carrying out Mr. Hill’s sentence.

The State of Florida created the current supposed time bind

by setting an execution date rather than simply moving to remand

this cause to the district court for a full and fair hearing. See

Appendix A & B. In letters exchanged between the Office of the

Governor and the Attorney General, the letter written by Attorney

General Crist states in reference to this cause, “The case has

been remanded to the Eleventh Circuit Court of Appeals on the

complaint filed pursuant to 42 U.S.C. § 1983, however no further

action has occurred.” Appendix B at 2. This letter was penned a

mere thirty-four days after the Eleventh Circuit Court received

the remand from the Supreme Court of the United States. Mr. Hill

was anticipating that the Eleventh Circuit Court would remand

this cause to the district court very soon and was simply waiting

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 8 of 32

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for notification of such remand. Mr. Hill was shocked that the

Governor of Florida would set an execution date without this

cause being fully litigated in light of the problems being

exposed in the lethal injection process in cases around the

country and the likelihood he will experience a torturous death

under Florida’s current lethal injection procedure.

A more obvious purpose of the setting of the new execution

date is to deprive Mr. Hill of his right to pursue his claims and

prevent Florida’s lethal injection procedure from being subjected

to any meaningful scrutiny. The State of Florida has rescheduled

Mr. Hill’s execution in order to obtain a strategic advantage in

this § 1983 action. The equities have now certainly been reversed

from when this cause was entertained by this Court in January.

Instead of Mr. Hill filing his lawsuit when his execution was

imminent, the State of Florida now has scheduled his execution

after his lawsuit was allowed to go forward in an apparent

attempt to preclude judicial resolution.

In light of the litigation concerning lethal injection

around the country, the fear of scrutiny is most likely

justified. Each State where the lethal injection procedure was

scrutinized was forced to face the fact that their procedures

were woefully inadequate and that the danger of subjecting a

condemned person to a torturous death was more likely than even

the Plaintiffs alleged.

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 9 of 32

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If this Court allows the State of Florida to avoid a full

and fair examination of their lethal injection procedure, the

issue will be a recurring problem never subject to review because

each condemned person who files a § 1983 claim similar to Mr.

Hill’s would be executed before the claim was heard on the

merits. This issue should be considered now in this case. One of

two outcomes will result, either the State of Florida’s execution

procedure will withstand constitutional scrutiny and remain in

place or, more likely, will crumble under constitutional scrutiny

and be modified to prevent the State of Florida from torturously

executing the condemned.

The likelihood that Mr. Hill will prevail on the merits of

his claims is demonstrated by recent developments in litigation

surrounding lethal injection and the fact that there is now

empirical, scientific evidence establishing that the chemical

process for lethal injection utilized in accordance with the

Florida Department of Correction’s protocol, creates a

foreseeable risk of the gratuitous and unnecessary infliction of

pain on a person being executed.

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 10 of 32

the Lancet study reflects his opinion to a reasonable degree of

scientific certainty. (Complaint, Att. A).

-11-

The likelihood that Mr. Hill will prevail on the merits of

his claims is demonstrated by empirical, scientific evidence

establishing that the chemical process for lethal injection

utilized in accordance with the Florida Department of

Correction’s (Department) protocol, creates a foreseeable risk of

the gratuitous and unnecessary infliction of pain on a person

being executed.

A recent study published in the world-renowned medical

journal THE LANCET by Dr. David A. Lubarsky (whose declaration

was attached to Mr. Hill’s Complaint) and three co-authors

detailed the results of their research on the effects of

chemicals in lethal injections. 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). This study confirmed, through the analysis of empirical

after-the-fact data, that the scientific critique of the use of

sodium pentothal, pancuronium bromide, and potassium chloride

creates a foreseeable risk of the gratuitous and unnecessary

found that in toxicology reports in the cases they studied, postmortem

concentrations of thiopental in the blood were lower than

that required for surgery in 43 of 49 executed inmates (88%).

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 11 of 32

in executions in Florida is identical to that identified in the

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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. (Complaint, Att. B). 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

As explained in the declaration of Dr. Lubarsky, sodium

pentothal is an ultra-short acting substance which produces

shallow anesthesia. (Complaint, Att. A). 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 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.

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

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 12 of 32

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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. (Complaint, Att. A). Pancuronium bromide is

unnecessary to bring about the death of a person being executed

by lethal injection. (Complaint, Att. A).

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. (Complaint, Att. A). 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. (Complaint, Att. A).

follows:

The combination of chemicals administered by the state

sequential intravenous administration of sodium

thiopental, pancuronium bromide and potassium chloride --

is widely used by the United States jurisdictions that

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 13 of 32

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execute condemned inmates by lethal injection. See

2005) (“the undisputed evidence before the Chancellor was

that only two states do not use some combination” of

these chemicals in lethal injection). If improperly

administered, this combination of chemicals will cause

inhuman suffering on the part of the inmate prior to his

death. And the procedures by which lethal injection is

administered in jurisdictions across the country create

a significant likelihood that the three-drug procedure

will be administered in a manner that causes such

suffering on the part of at least some inmates prior to

their death.

Both sodium thiopental and pancuronium bromide can

cause respiratory arrest and be lethal, but the injection

of potassium chloride shortly after the injection of

sodium thiopental and pancuronium bromide normally

ensures that death occurs by cardiac arrest before

respiratory arrest occurs. Thus, in all lethal injection

jurisdictions, potassium chloride is the agent intended

to bring about the inmate’s death. Sodium thiopental is

administered as an anesthetic, and pancuronium bromide is

to make the prisoner appear serene.

In the doses and concentrations in which it is

administered in the lethal injection process, potassium

chloride is - absent adequate anesthesia – indescribably

painful. It “scours the nerve fibers lining [the

February 1, 2006), and interrupts the heart’s signaling

function, interfering with its rhythmic contractions and

causing a massive coronary arrest. Administering this

quantity of potassium chloride to a conscious individual

would, in addition to precipitating a painful coronary

arrest, result in an excruciating burning pain, extending

from the site of the injection (normally an arm, hand,

leg or foot) to the heart, and would constitute the most

severe form of torture.

The administration of pancuronium bromide during the

lethal injection process greatly increases the likelihood

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 14 of 32

by certain surgical patients, who are anesthetized and whose

breathing and ventilation are accomplished artificially.

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that the inmate will suffer agonizing pain. Although it

makes the inmate incapable of any voluntary movement, and

even of breathing, pancuronium bromide has no effect

result, an individual to whom pancuronium bromide has

been administered, but who is not properly anesthetized,

will endure the terror of conscious paralysis, with no

ability to struggle or communicate to anyone else that he

is conscious and feels pain. An inmate undergoing lethal

injection to whom pancuronium bromide has been

administered, and who is not properly anesthetized, would

suffocate while experiencing (consciously) the blinding

pain of an injection of potassium chloride and a massive

heart attack, while onlookers believed him to be

unconscious and insensitive to any pain.

Although an inmate who is properly anesthetized will

not consciously experience the pain and terror associated

with injections of pancuronium bromide and potassium

chloride, their injection into the veins of an individual

who is not sufficiently anesthetized would cause horrible

suffering. Therefore, unless the inmate is brought to an

appropriate anesthetic depth by the injection of sodium

thiopental, and unless that depth is maintained

throughout the lethal injection process, the inmate will

endure savage torment.

However, achieving and maintaining an appropriate

anesthetic depth is an extraordinarily complex endeavor,

which requires specialized training and procedures, and

equipment. If adequately trained personnel, appropriate

procedures and proper equipment are not employed

throughout the lethal injection process, there is a great

likelihood that tremendous agony will be inflicted upon

some inmates in the course of any significant number of

executions.

lawyers and Physicians, Lawrence D. Egbert, M.D., and Andrew Gumbs,

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 15 of 32

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2006 U.S. LEXIS 4674 (June 12, 2006).

As explained 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. (Complaint, Att. A).

Here, the appellees 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, which they have

admitted to be their practice, which is unnecessary as a means of

employing lethal injection, and which creates a foreseeable risk

of inflicting unnecessary and wanton infliction of pain contrary

to contemporary standards of decency.

The Eighth Amendment “proscribes more than physically

(1976). It prohibits the risk of punishments that “involve the

unnecessary and wanton infliction of pain,” or “torture or a

“Among the ‘unnecessary and wanton’ inflictions of pain are those

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 16 of 32

demonstrate the necessity of a stay of execution and the

granting of discovery.

-17-

“exercises of cruelty by laws other than those which inflict

373 (1909). It forbids laws subjecting a person to

“circumstances of terror, pain, or disgrace” “superadded” to a

Under the present circumstances, given the fact that Mr.

Hill possesses scientific evidence proving his claim, he will

likely succeed on the merits of the issue; that is, he will be

unnecessarily subjected to a substantial risk of wanton

infliction of pain, in violation of the Eighth Amendment.

L.Ed2d 1144, 2006 U.S. LEXIS 1074 (January 25, 2006), 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

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 17 of 32

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execution procedures that may cause a condemned inmate

U.S. Dist. LEXIS 42949, 22 (June 26, 2006). The Court succinctly

follows:

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

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;

4) there is no means to monitor the anesthetic depth of the

condemned during the execution procedure.

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 18 of 32

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5) there are no checks and balances or oversight at any

The Court observed, “It is obvious that the protocol as it

currently exists is not carried out consistently and is subject

Of particular note to Mr. Hill’s case is that the District

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

importance of being provided discovery about execution procedures

as well as information about recent executions – information to

which Mr. Hill has been completely denied.

The procedural history in Mr. Taylor’s case is instructive

as to the perils of attempting to litigate lethal injection

claims at a moment’s notice when a state arbitrarily sets an

execution date to gain an advantage in a §1983 lethal injection

case. During the pendency of Mr. Taylor’s lethal injection

challenge the State of Missouri arbitrarily set an execution date

stayed the execution and set an evidentiary hearing on Mr.

Taylor’s claims for February 21, 2006. The district court’s

stated reason for the stay was that it could not accommodate a

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 19 of 32

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hearing in Mr. Taylor’s case prior to February 21, 2006 due to

The State of Missouri appealed the issuance of a stay and

the Eighth Circuit vacated the stay and remanded to the district

court on January 29, 2006 with instructions to assign a district

court judge that could immediately hold a hearing and issue a

ruling prior to the scheduled February 1, 2006 execution. See

On remand the district court judge immediately conducted a

hearing on January 30 and 31, 2006, while making it clear the

hearing would be conducted in accord with the Eighth Circuit’s

discovery and unable to procure the attendance of his need

immediately appealed the district court’s adverse order,

asserting that the expedited and truncated hearing before the

asserted error regarding his inability to call necessary

rehearing, and returned the case to the panel for briefing and

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 20 of 32

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The panel’s observation after briefing and oral argument is

enlightening:

Having reviewed the record made before the

district court, we now realize the burdensome

strain that our order imposed upon the district

court as well as upon the parties as they made

extraordinary efforts to comply. We herby offer

court and the parties to do too much in too little

The case of Michael Morales is a case study in why a factual

record must be fully developed to allow a court to properly

review an Eighth Amendment challenge to a state’s lethal

example of why this Court should stay Mr. Hill’s execution and

afford him the opportunity to discover and present evidence

challenging Florida’s lethal injection procedure. 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.

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

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 21 of 32

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

-22-

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

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.

litigation intravenous line placement was a problem. News reports

detailed problems with the line placement during the execution of

placed quickly, although it spurted blood, and then the staff

struggled to insert the second line. The line placement took long

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 22 of 32

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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

that one of the intravenous lines failed. This illustrative

experience demonstrates that properly trained and experienced

personnel are critical for this difficult process.

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

335427 at *6(N.D. Cal., Feb. 14, 2006).

Morales also received the detailed execution logs from

The logs suggest that, contrary to the theoretical principle that

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.

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

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 23 of 32

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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.

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.,

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 24 of 32

2006 U.S. Dist. LEXIS 24496, 13.

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when pancuronium bromide was injected, nine minutes

after the administration of sodium thiopental began.

omitted).

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.

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 chemicals and

the amount of chemicals used in the execution procedures in

this Court would be remiss if it did not take note

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

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 25 of 32

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protocol (5 grams) and that prescribed under North

Carolina’s protocol (3000 mg).”

U.S. Dist. LEXIS 24496, 13. The District Court referenced

affidavits and information.

levels of sodium pentothal being less than what would be

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,

and supports the recent scientific research published in the

Lancet article.

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

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 26 of 32

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

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.

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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

Since the United States Supreme Court granted Mr. Hill a

stay of execution and rendered its decision, new, critical

information has surfaced that undermines the theories that

originally supported the current lethal injection protocols used

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.

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 27 of 32

chemicals to be used in animal euthanasia and the chemicals

that are prohibited for such use (including any neuromuscular

blocking agent); a strict “order of preference” for the manner

in which the lethal solution is to be administered; the

qualifications that a person administering the lethal solution

must possess; and a 16-hour “euthanasia technician course”

that anyone administering the lethal solution must have taken.

minimum topics that the certification course must cover

(including pharmacology, proper administration and storage of

euthanasia solutions) and the manner in which the curriculum

for the course is to be approved (by the Board of Veterinary

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Mr. Hill diligently pursued his claim as soon as it ripened.

His claim became ripe when his death warrant issued, because it

was only at that point that he could ascertain the specific means

That is so because the Department of Corrections retains complete

discretion over how lethal injections will be carried out, and

shrouds its intentions in secrecy.

No Florida statute provides the chemical sequence to be

used, the procedures for administering it, any qualifications or

training required for persons engaged in administering the

chemicals and monitoring the execution, or the means of venous

procedures be devised through rule-making process, or in

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 28 of 32

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(requiring Board of Pharmacy to adopt rules for the issuance of

permits authorizing the use of chemicals in animal euthanasia,

which “shall set forth guidelines for the proper storage and

handling” of the chemicals); 828.058 (requiring training for

animal euthanasia technicians involving a curriculum approved by

the Board of Veterinary Medicine). And the Department has not

itself decided to publish any definitive set of procedures

through rule-making or otherwise. The Department, therefore,

retains total discretion to change the chemical sequence, the

manner of administration, the qualifications and training of the

execution team, and any safeguards to ensure proper

administration and adequate anesthetic depth at any time and with

respect to any particular execution. The State has never disputed

that the Department has total discretion in this regard.

The “central concern” of the ripeness doctrine “is whether

the case involves uncertain or contingent future events that may

not occur as anticipated.” Charles Alan Wright et al., 13A

ripeness inquiry looks to whether a sufficiently concrete and

definitive agency policy or practice exists. Otherwise, judicial

intervention would “den[y] the agency an opportunity to correct

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 29 of 32

to records, policies, procedures, or any other information

concerning its lethal injection protocols and procedures.

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Supreme Court of the United States has explained in the analogous

context of federal administrative review,

[T]he ripeness requirement is designed “to prevent

the courts, through avoidance of premature

adjudication, from entangling themselves in

abstract disagreements over administrative

policies, and also to protect the agencies from

judicial interference until an administrative

decision has been formalized and its effects felt

in a concrete way by the challenging parties.”

732-33 (1983).

Here, rather than promulgate a definitive policy, DOC has

retained total discretion over its process of lethal injection.

For this reason, it was only when Mr. Hill’s execution was

imminent that he could ascertain what execution procedures would

be applied to him. The State cannot fight tooth and nail to

the condemned person of inequitable conduct because he must wait

until his death warrant is issued to ascertain the particular

procedures that will be used in his execution.

Instead, the State can secure an earlier disposition of such

suits simply by prescribing definitive practices or the orderly

adoption of rules, as it already has done to regulate animal

euthanasia. The Department, moreover, need only implement the

familiar process of agency rule-making to ensure that the

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 30 of 32

remedies prior to bringing his federal-court action under

1249 (2005), he did so out of an abundance of caution,

recognizing that if the district court were to construe his

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question whether its chosen procedures for administering lethal

injection violates the Eighth Amendment ripens before the

inmate’s date of execution is set.

discretion and of any definitive practices that would have

provided the courts with a sufficiently concrete policy to

review, Mr. Hill’s claim did not ripen until the execution

warrant issued. From the moment that Mr. Hill’s challenge

ripened, he has diligently pursued his claim. Mr. Hill initially

filed suit in state court, in order to defend against an argument

action was dismissed on procedural grounds in state court, he

filed his § 1983 action.

temporary injunction staying Mr. Hill’s execution and allow Mr.

Hill’s § 1983 action to be fully and fairly litigated without an

imminent execution date looming.

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 31 of 32

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Respectfully submitted,

/s/ D. Todd Doss

D. TODD DOSS

Florida Bar No. 0910384

725 Southeast Baya Drive

Suite 102

Lake City, FL 32025-6092

Telephone (386) 755-9119

Facsimile (386) 755-3181

COUNSEL FOR APPELLANT

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing document has been served on

September 2006.

/s/ D. Todd Doss

D. TODD DOSS

Copies furnished to:

Carolyn Snurkowski

Assistant Attorney General

Office of the Attorney General

Plaza Level 1

The Capitol

Tallahassee, FL 32399

Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 32 of 32